Petit v. Petit , 2013 Ohio 4860 ( 2013 )

[Cite as Petit v. Petit, 2013-Ohio-4860.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
NICOLE PETIT NKA NIEMEYER,
PLAINTIFF-APPELLEE, CASE NO. 10-13-01
v.
MICHAEL J. PETIT, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Domestic Relations Division
Trial Court No. 09-DIV-066
Judgment Reversed and Cause Remanded
Date of Decision: November 4, 2013
APPEARANCES:
Kelly J. Rauch for Appellant
Thomas E. Luth for Appellee
Case No. 10-13-01
WILLAMOWSKI, J.
{¶1} Defendant-Appellant Michael J. Petit (“Michael”) brings this appeal
from the judgment of the Court of Common Pleas of Mercer County, Domestic
Relations Division, reducing Michael’s visitation after Michael sought to alter the
days of his visitation. For the reasons set forth below, the judgment of the trial
court is reversed and remanded for further proceedings.
{¶2} Michael and Plaintiff-Appellee Nicole C. Petit aka Niemeyer
(“Nicole”) were married on April 1, 2006. Doc. 3. During the marriage, Michael
and Nicole had two children: Marcus, born in 2006, and Jonathan, born in 2009.
Id. On December 2, 2009, Nicole filed a complaint for divorce. Id. The divorce
was granted on August 22, 2011. Doc. 140. The divorce decree granted Michael
parenting time on Tuesdays and Thursdays from noon until 8:00 p.m. and
alternating weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., subject
to Nicole being permitted to take the children to church every Sunday. Id.{¶3} On October 11, 2011, Michael filed a motion to modify visitation so
that his visits with Marcus and Jonathan would be on the same weekend as his
visits with the boys’ half-siblings. Doc. 149. Michael also requested that Nicole
no longer be permitted to take the children to church on his weekends as it
interfered with his parenting time. Id. On October 27, 2011, Nicole filed her
motion to modify Michael’s parenting time to that of local rule schedule only and
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requested that it be with supervision. Doc. 153. Nicole also requested that a
Guardian Ad Litem be appointed. Doc. 154. The trial court appointed Daniel
Myers (“Myers”) as the Guardian Ad Litem on October 31, 2011. Doc. 158. On
January 12, 2012, Nicole filed a second motion to modify Michael’s visitation and
requested that it be restricted to every other Saturday only and with supervision.
Doc. 171. Nicole based this motion on an allegation that Michael did not properly
clothe the children for the weather and did not provide proper nutrition or general
care. Doc. 172. Michael filed a response to Nicole’s motion denying any neglect
of the children on July 25, 2012. Doc. 173.
{¶4} A hearing on the motions was held on April 30, 2012. The first
witness was Roberta Donovan (“Donovan”). Donovan is a social worker for
Foundations Behavioral Health Services and provides counseling for Marcus. Tr.
8-10. Donovan testified that she sees Marcus on an outpatient basis two to three
times a month. Tr. 10. Counseling was initiated by Nicole. Tr. 11. Donovan
described Marcus as follows.
Marcus is a very strong-willed individual/child, has some
difficulties with boundaries, truly does not like the word no.
When he comes in is very driven by wanting a reward for doing
well, whether he does well or not. It’s always about the end
result of wanting a reward.
***
Marcus is a child, and since he has been diagnosed with
attention deficit hyperactivity disorder [“ADHD”], is going to
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benefit from a consistent home life, whether it be with Nicole or
Michael or at school, consistency is the most important thing for
him and having structure.
Tr. 11-12. In addition, Donovan testified that Marcus will say whatever will
please the parent who is present. Tr. 14.
* * * Michael shared how he had not attended conferences as he
has not been told when they were, kind of gave a history about
when him and, when Nicole and Michael had split up at this
time, kind of what his diagnosis was. During the session, Marcus
was very clear on stating how he hates his mom. Also, at that
time Marcus was making comments of people being killed and
how people in treatment are a bunch of killers.
Q. Did the child ever respond in similar fashion when he was
with his mother?
A. Yes. He will say similar things, but referring them to his
father.
Tr. 13-14. Donovan testified that through her contact with Marcus through Head
Start, there are more behavioral difficulties on Tuesday and Thursday, the days
that Marcus goes to Michael’s home. Tr. 15.
{¶5} On cross-examination, Donovan testified that although the case had
previously been closed, Nicole reopened it on November 2, 2011. Tr. 16. The
case was reopened after Marcus scratched his face while having a tantrum at Head
Start. Tr. 17. Marcus was hospitalized for a mental disorder at that time and
placed on medication for his ADHD. Tr. 17. Marcus was admitted to the hospital
on October 27, 2011, and released on October 31, 2011. Tr. 17. The original case
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was opened on March 10, 2010, and continued until May 16, 2011. Tr. 18.
Donovan also testified that Marcus has issues transitioning from one house to the
other and that there are issues when Marcus returns from Michael’s house to
Nicole’s house. Tr. 22. Donovan also testified that her agency had been trying to
set up a home visit so that they could observe Marcus in his own environment, but
Nicole had not been cooperative in doing so. Tr. 23-24. Although Michael has
only been to one session, Nicole schedules them and Donovan did not know if
Michael was informed of the times. Tr. 25-26. Donovan also testified that it is
not the movement from one home to the other, but the inconsistency between
Nicole and Michael’s parenting styles that is disruptive for Marcus. Tr. 26-27.
{¶6} The next witness was Michelle Self (“Self”). Self is the director of
early childhood services at Mercer County Head Start. Tr. 32. Marcus is a student
in the Head Start Program. Tr. 33. During the two years that Marcus has attended
Head Start, Self has been concerned about his social and emotional needs and how
they have affected his education. Tr. 33.
* * * Marcus is very often not able to be in a group situation
without there being issues. Whether the issue is him being in
another child’s personal space or not being able to control his
behavior as far as making the right choices with different things,
with toys, with equipment there, outside/inside.
He very much has a lot of issue with harming himself. He will
very often, especially when his feelings, when his emotions rise,
he will often scratch himself, hit his head on the floor, that kind
of thing. So we’re seeing the behaviors that concern me. What
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I’m seeing are noncompliance but also him dealing with his
emotions.
Tr. 34. Self testified that Marcus has more issues on Tuesday and appears anxious
about going to Michael’s home. Tr. 35. After Marcus was hospitalized and
medicated, his behavior improved. Tr. 42. Self testified that she did not have an
opinion on the visitation schedule, but that both Michael and Nicole needed to be
consistent in how they parented Marcus. Tr. 44. Although Self testified that
Michael was not involved with the program, she testified on cross-examination
that the program only contacts the parent who enrolls the child, which would be
Nicole. Tr. 44-45. When there are issues with Marcus at the school, they attempt
to contact Nicole first and then follow the contact sheet which Nicole completed,
which listed Nicole’s mother as the second contact person. Tr. 46. Michael does
not receive notices from the school and the teachers do not send home behavioral
information. Tr. 48-49. Self also testified that Marcus is a very bright boy, but is
also manipulative of the people around him, including his parents. Tr. 51.
{¶7} The third witness was Lorna Niemeyer (“Niemeyer”), who is Nicole’s
mother. Tr. 56. Niemeyer testified that she observes Michael with Marcus and
Jonathon when they pick the kids up for church or when Michael picks them up
from her home. Tr. 58. Niemeyer testified that Nicole has a strict routine that the
children follow, while she does not believe that Michael has the same routine. Tr.
59. She does not think that Marcus obeys Michael. Tr. 59. When she picks up
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the boys on Sunday mornings, they are frequently in the same clothes they wore
when the left on Friday and she always bathes them before taking them to church.
Tr. 60-61.
{¶8} Nicole was the next witness. Nicole testified that she would prefer
that Michael have no visitation during the week and only supervised visitation
every other weekend. Tr. 68. Nicole wants the children to be asleep by 8:00 p.m.
and picking them up at 8:00 p.m. during the week does not allow that to happen.
Tr. 69-70. In addition, Nicole believes that Michael goes out of his way to make
the boys “worse before they come back” by giving them candy and kool-aid in the
evening. Tr. 70. She testified that she did not want to have the caseworker
coming to her home and that she has tried to avoid it. Tr. 70-71. When asked
whether she had asked Michael to help her get Marcus to the various
appointments, she testified that she had discussed the issue with the GAL during
the divorce proceedings. Tr. 71. When there are discussions about parenting
issues, Nicole testified that she wants Michael to do things her way and when he
told her it does not work for him, she told him it “sounds like a parenting
problem” and “decided to abruptly end the conversation”. Tr. 72. In February of
2011, Nicole went to Michael’s home to pick up the children. Tr. 72. When no
one answered the door, she called the police, who eventually were able to wake
Michael and the children. Tr. 72-73. At the time, Jonathan had a black eye and
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Michael had no idea how it happened. Tr. 73. On one instance, Nicole sent the
children to Michael’s home with fevers and asked Michael to take them to the
doctor, but he chose not to do so. Tr. 75. Nicole testified there were multiple
instances where Michael did not give the children the medication prescribed to
them by the doctor. Tr. 75-76. In October of 2011, Nicole picked up the children
on Sunday morning and in her opinion, they were filthy. Tr. 77. She testified that
Jonathan had four gashes in his head and that Michael said he had fallen off of the
bed. Tr. 77. Nicole took Jonathan to the police who photographed the injury. Tr.
77. Michael told the officer who questioned him that Jonathan had fallen off his
tricycle and off the bed, so there were two separate incidents. Tr. 80. When
Marcus was admitted to the hospital, Michael did not come to the hospital. Tr. 81.
Nicole testified that she withdrew Marcus from counseling when medication was
recommended. Tr. 82. She decided to put herself into counseling to become a
better parent rather than medicating her child. Tr. 81. Her counselor was her
pastor who has “had a child like [Marcus]” and is “writing a book on raising a
child like this.” Tr. 82. When Marcus comes home from Michael’s home, he is
difficult because the routines are different. Tr. 85-86. Nicole testified that during
the weekdays, she would like Michael to feed the children, bathe the children, and
have them ready for her to pick up at 6:00 p.m. rather than the scheduled 8:00 p.m.
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Once Marcus starts kindergarten, Nicole would like Michael to also make sure the
homework is completed on his evening. Tr. 88.
{¶9} On cross-examination, Nicole admitted that she started the counseling
soon after the divorce was filed and ended it soon after the decree was entered. Tr.
90. The motion to modify the parenting schedule was filed in October of 2011,
and Marcus was returned to counseling soon after the motion was filed. Tr. 90.
Although the counselors recommended a psychiatric evaluation for Marcus in June
of 2011, Nicole did not agree to it until after Marcus was hospitalized in October
of 2011. Tr. 91. She did not want to do the evaluation because she did not want to
have Marcus medicated. Tr. 91. Nicole also admitted that she had told Michael
she did not want to alter the visitation schedule because she wanted her children
on the same schedule as her friend’s children. Tr. 92. Nicole testified that while
she was taking Marcus to the hospital in Toledo, Michael asked to have Jonathan
so that he could take him trick or treating, but she would not let him. Tr. 93. As
to Marcus’ schooling, Nicole admits that she does not provide Michael with
information. Tr. 94. She also admitted that the police did not press charges
concerning the injuries to Jonathan in 2011. Tr. 95. Nicole also admitted that she
schedules Marcus’ counseling sessions for her day and does not notify Michael of
the appointments. Tr. 95-96. When Marcus was removed from school, Nicole did
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contact Michael and Michael did come to the home to meet with the caseworker.
Tr. 98.
{¶10} When questioned by the Guardian Ad Litem, Myers, Nicole testified
that the caseworker had come to her house, met with Marcus alone, then met with
Marcus and Michael. Tr. 99. Michael then left with both boys and the caseworker
stayed to speak with her. Tr. 99-100. Nicole testified that if the counselor wanted
a joint session with her and Michael, she would do it. Tr. 100. She also testified
that she would like any midweek visitations to begin around 4:00 p.m. and end at
6:00 p.m. Tr. 100.
{¶11} After Nicole finished presenting her case, Michael presented his
case, and was his first witness. Michael first was asked why his hair was red and
testified that as a bonding activity with his seventeen-year-old daughter, he let her
dye his hair and she chose to color it red. Tr. 103. In addition to Marcus and
Jonathan, Michael has three other children from a prior marriage: Katherine who
was 17, Mandy who was 13, and Lukas who was 11. Tr. 103. Michael testified
that he sees these children every other weekend and extended time during the
summer. Tr. 103. Michael testified that he was moving from the two bedroom
apartment to a larger house that he had purchased. Tr. 104. The new home had
four bedrooms with a possible fifth. Tr. 105. Michael testified that each child
would have his or her own bed, with Marcus and Jonathan initially sharing a room
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with a bunk bed in it. Tr. 107-108. Michael testified that Nicole had
“reservations” about all the kids being at visitation on the same weekend. Tr. 109.
Nicole also told him that she wanted her schedule to match that of her friend. Tr.
109. Michael would like the visits to be on the same weekends so that the children
can spend time with their siblings. Tr. 110. When it is Michael’s visit, Nicole
does not usually send any clothes for the children as they do not have a bag. Tr.
111. Nicole did provide some diapers for Jonathan. Tr. 111. Michael testified
that he has asked Nicole via text messages to send additional clothing for the boys,
but she usually does not do so, even for the weekend visits. Tr. 112. Michael also
testified that he would like to alter the visitation schedule so that Nicole does not
pick the boys up for church on his Sundays because it takes half a day away from
his visits. Tr. 112. As to Jonathan’s injuries, Michael testified it happened
because the boys were jumping on the bed and Jonathan fell, hitting his head on
some items on the floor. Tr. 114. Then, the next day Jonathan tipped his tricycle
and struck his head again. Tr. 114. The police investigated and sent the report to
Children’s Services, who chose not to investigate because the injuries did not
appear to be caused by anything other than typical child behavior. Tr. 114-15. As
to the incident when Nicole called the police because he did not answer the door,
Michael testified that he and the boys were asleep taking naps and did not hear her
knocking. Tr. 115. Michael testified that Nicole has not asked him to take Marcus
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to any appointments and does not tell him when they are scheduled. Tr. 116.
Michael also testified that he was not notified concerning the issues at Head Start
prior to the last incident, which occurred soon before the hearing. Tr. 117.
Michael testified that generally, Marcus behaves properly when with him, except
for a lack of focus. Tr. 118-19. Michael also testified that for discipline, he
counts and if the boys are not behaving when he reaches three, he places them in
timeout. Tr. 119-20. Michael denied that he gave the children a lot of sugar so
that they would act up for Nicole. Tr. 121. At his home, bedtime for the children
starts at 9:00 p.m., but Marcus can take a couple of hours to go to sleep because he
will not stay in one spot and does not want to go to bed. Tr. 121. The only nights
Michael has to deal with bedtimes is Friday and Saturday, so there is no school the
next morning. Tr. 121. Michael also denied not giving the children their
medication. Tr. 121-22. When Nicole took Marcus to Toledo, Michael testified
that Nicole told him she was taking him to Toledo for his behavior. Tr. 122.
Michael testified that he offered to watch Jonathan, but Nicole said no because she
thought Jonathan could be Marcus’ playmate while he was in the hospital. Tr.
122. Michael agreed to participate in counseling and to attempt to work with
Nicole concerning the children. Tr. 123. Michael also agreed to bathe the
children on his weekdays, but would like to have Nicole send clothing for the
children so that he could have them ready for bed. Tr. 124. Michael also testified
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that he would like to have more access to the school information because he has
not been getting any information from the school even after he asked for it. Tr.
124. Michael would also like to be the secondary contact to come get the children
if there is an issue rather than having them go to their grandmother. Tr. 125.
{¶12} On cross-examination, Michael admitted that he did not believe in
having as structured a household as Nicole has. Tr. 129. He testified that he is
“not overly anxious to send them to bed at 7:30”. Tr. 129. He also admitted that
he does not believe in God and that he does not have an hour by hour schedule.
Tr. 129.
We have breakfast in the morning. In the afternoon we have
lunch, and in the evening we have supper and occasionally they
have a snack.
***
There’s not a set 6 o’clock [suppertime], no.
Q. Exactly. You don’t have any particular times for those
things?
A. Between five and six.
Q. Right. And you don’t have any particular times for
breakfast. Just whenever you get up or get around to it?
A. When they’re up and around, yes, they get breakfast, yes,
when they’re hungry.
Q. Okay.
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A. Do I have a set, exact minute? No. I don’t know anybody
who does.
Tr. 129-30.
{¶13} When Myers questioned Michael, he admitted that he could have
called the counselors and the school more often for information. Tr. 132. Michael
also admitted that he could have contacted Nicole about Marcus when he was in
Toledo. Tr. 133. He testified that he did not do so because if Nicole had
information, she would call him. Tr. 133. Michael admitted that he and Nicole
had a problem communicating and that he has frequently just given up. Tr. 132-
34.
{¶14} Michael’s next witness was Mary Beth Siefring (“Siefring”).
Siefring is a friend of Michael’s who had lived with him at his apartment. Tr. 135.
Siefring testified that she had observed Michael with all five of his children at
once and also with just Marcus and Jonathan. Tr. 136. Siefring testified that
Michael has good interaction with Marcus and Jonathan. Tr. 137. Living in the
house, Siefring has noticed that Marcus does not listen very well. Tr. 138. When
Michael has disciplined Marcus, he has gotten “spanked on the backside” or
placed into timeout. Tr. 138. Overall, the incidents where Marcus needs
disciplined do not happen very often. Tr. 139. Siefring also testified that
sometimes Marcus will come into her room and want to sleep in her bed. Tr. 139.
Siefring will let him lie there watching television until he falls asleep, and then she
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turns it off. Tr. 139. On cross-examination, Siefring admitted that sometimes she
thought “the spanking’s a little hard.” Tr. 138. However, she said the incidents
did not cause her concern and they did not happen a lot. Tr. 138-39.
{¶15} Myers was the last person to testify. He recommended that
visitations be changed from two days during the week to one and that it end at
6:00 p.m. so that Marcus has time to calm down before bed. Tr. 142. Myers also
indicated that he would like to see Michael add a fence to his new home due to it
being a rural home near a busy road. Tr. 145. As to the counseling, Myers
indicated he would like the court to order Michael to participate. Tr. 147. Myers
did indicate that all five of the children seem to interact well together. Tr. 149.
When questioned, Marcus and Jonathan indicated that they enjoy spending time
with their older siblings. Tr. 149.
{¶16} The magistrate entered her decision on May 22, 2012. Doc. 194.
The decision recommended reducing Michael’s parenting time from two evenings
a week and every other weekend to alternating Saturdays between 9:00 a.m. and
6:00 p.m. and ordering Michael to pay all guardian ad litem fees. Id. Michael
filed his objections to the magistrate’s decision on August 3, 2012. Doc. 202.
Michael objected to the following findings: 1) The GAL recommended Michael
only have one day of visitation per week; 2) Michael claimed that people in
counseling are killers; 3) Marcus was “mutilating” himself; 4)
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Mischaracterizations of the testimony of Self; and 5) Mischaracterizations of the
testimony regarding Michael’s involvement with school and counseling. Michael
also objected to the magistrate’s application of R.C. 3109.051(D), the decision to
reduce his visitation to a mere nine hours every other weekend, and ordering
Michael to pay all of the GAL fees. Id. On August 31, 2012, the trial court
entered its judgment entry sustaining some of the objections and overruling others.
Doc. 204. The trial court modified the magistrate’s decision and ordered counsel
to prepare a judgment entry. Id. The final judgment entry, bearing the signature
of the magistrate as well as the judge, was filed on January 30, 2013. Doc. 217.
Michael filed his notice of appeal from this judgment on February 8, 2013. Doc.
220. He raises the following assignments of error.
First Assignment of Error
The trial court abused its discretion when it unreasonably,
arbitrarily and unconscionably disregarded its August 31, 2012
entry by issuing its January 30, 2013 entry.
Second Assignment of Error
The trial court erred when it significantly reduced [Michael’s]
visitation without a finding that [Michael] was unfit or that
visitation with the minor children would cause harm.
Third Assignment of Error
The trial court erred by failing to consider the necessary criteria
for modifying a prior visitation order.
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Fourth Assignment of Error
The trial court applied the wrong standard of review in
considering the objections to the Magistrate’s Decision
Fifth Assignment of Error
The trial court abused its discretion when it made [Michael’s]
visitation with his children contingent on him erecting a fence.
{¶17} In the first assignment of error, Michael claims that the trial court
erred by entering a judgment on January 30, 2013, that was inconsistent with its
ruling on August 31, 2012. Michael made several objections to the magistrate’s
decision and the trial court sustained two of the objections to the factual findings.
In addition, the trial court ruled that since the magistrate based her application of
the law upon erroneous findings of fact, the application of the law must be
modified. The trial court also ordered that the guardian ad litem fees would be
split equally between Michael and Nicole. The trial court then amended the
decision of the magistrate to read as follows.
Having found good cause for sustaining defendant’s objection 1
to the magistrate’s findings of fact, the court hereby amends
paragraph 74 of the findings of fact portion of the magistrate’s
decision to read as follows:
74. The guardian ad litem recommends that Michael have
parenting time one weekday per week beginning at noon and
continuing until 6:00 p.m., with him feeding the children. When
Marcus is in school full time, father would have Marcus after
school until 6:00 p.m.; mother would continue to have the
children to take to church on father’s weekend as she has done
in the past; * * *. He further indicates that an order is necessary
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for counseling. There also needs to be an order with regard to
basic hygiene issues in the house. In addition to ordering
Michael to attend counseling with the children, he should also
attend parenting classes. Michael has attended counseling with
the Veterans Affairs, however, it is unknown if the counseling
has addressed parenting issues or issues related to his post-
traumatic stress syndrome.
Furthermore, the court hereby modifies the Magistrate’s
Decision, such that paragraph 4 of the decision portion of the
Magistrate’s Decision is modified to read as follows:
4. Effective immediately, Michael’s parenting time shall be
modified. He shall have one weekday per week beginning at
noon and continuing until 6:00 p.m., with him feeding the
children. When Marcus is in school full time, father would have
Marcus after school until 6:00 p.m.; mother would continue to
have the children to take to church on father’s weekend as she
has done in the past; * * *.
In addition, paragraph 6 of the Magistrate’s Decision is hereby
modified to read as follows:
6. Nicole and Michael shall each pay and save each other
harmless from one-half of the guardian ad litem fees incurred by
[Myers] upon the court’s approval of said fees.
Aug. 31, 2012, Judgment, 8-9.
{¶18} Although this was the order of trial court, the judgment entry
ultimately signed by the trial court did not reflect this order, stating:
It is further ORDERED, ADJUDGED, and DECREED that
effective immediately Defendant’s parenting time shall be
modified. He shall have parenting time on alternating Saturdays
from 9:00 a.m. until 6:00 p.m. Michael shall feed the children.
Defendant may have the children on the weekend consistent with
his parenting time with his three children from a prior marriage.
There shall be no overnight visits. Plaintiff shall continue to
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have the children to take to church on defendant’s weekend as
she has done in the past.[1] Plaintiff shall have every Easter
holiday and defendant shall have every Fourth of July holiday.
During Christmas break, Defendant shall have the children
every Christmas Eve at 10:00 a.m. until Christmas Day at 10:00
a.m. and plaintiff shall have Christmas Day at 10:00 a.m. until
December 26th at 10:00 a.m.[2] The receiving party shall
transport the children.
***
It is further ORDERED, ADJUDGED, and DECREED that the
guardian ad litem has had the opportunity to inspect the
defendant’s home. The guardian ad litem has advised the court
as to the hygiene, cleanliness, and suitability of the home. It was
ordered that defendant have a fence installed as previously
recommended. Defendant’s parenting time is conditioned upon
completion of the improvement.
Jan. 30, 2013, Judgment, 2. It is not clear why this judgment entry was signed as
it clearly contradicts the prior order and is inconsistent by its own terms.
Additionally, the terms of this order contradict the recommendation of the GAL.
The GAL in its initial report recommended that Michael have the children on the
same weekend as his older children once he moved to his new home. Myers also
indicated that he recommended the parties keep their old agreement as to the
weekends, but reduce the weekday visits from two days to one and have it end at
6:00 p.m. so that Marcus can have time to relax at home before bed during the
1
This court notes that this appears to be completely inconsistent with the prior part of the order limiting
Michael’s visitation to Saturday only and prohibiting overnight visits. Why would Nicole need an order
allowing her to take the children to church on Michael’s weekend if he does not have them on Sunday
mornings?
2
Again, the order stating that Michael has the children from 10:00 a.m. until the next day at 10:00 a.m.
contradicts the portion of the order stating that there shall be no overnight visits.
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school week. Exhibit GAL #1 and Tr. 142. In his supplemental report submitted
on July 31, 2012, the GAL indicated that Michael’s home was appropriate for all
visits with the children.3 “[W]hile the weight to be given to a guardian ad litem
report is always within the prerogative of the trial court, when the trial court
renders a decision which goes against the specific recommendation of the guardian
ad litem, the trial court must at least address the reasons for doing so.” In re D.H.,
3d Dist. Marion No. 9-06-57, 2007-Ohio-1762, ¶22. The record in this case is
insufficient for this court to determine why the final entry does not comply with
prior rulings. Therefore, the matter needs to be remanded to the trial court for
further review. Additionally, given the lengthy time between the original hearing
and the time of this ruling, the trial court may wish to consider taking additional
evidence to see what the situation with the parties currently is rather than relying
on evidence more than a year old, especially considering that there were numerous
conditions placed in the prior order. The first assignment of error is sustained.
{¶19} In the second assignment of error, Michael claims that the trial court
erred in significantly reducing his visitation without a finding that he was unfit or
that it would cause harm to the children. Michael claims that reducing his
visitation from two days during the week and every other weekend to one day
every other weekend is substantially interfering with his rights to parent his child.
3
Although the 2nd GAL report was not filed with the clerk of courts, it was received by the trial court,
reviewed by the trial court and the court acknowledged it in its January 30, 2013 Entry when it indicated
that the GAL had conducted a home review.
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A noncustodial parent’s right of visitation with his children is a
natural right and should be denied only under extraordinary
circumstances, such as unfitness of the noncustodial parent or a
showing that visitation with the noncustodial parent would cause
harm to the children. The burden of proof in this regard is on
the party contesting visitation privileges.
Pettry v. Pettry, 20 Ohio App.3d 350, at syllabus, 486 N.E.2d 213, (8th Dist. 1984).
Because of the importance of the parent-child relationship and
the likely benefits to the child as it grows up from reasonable
(and, where necessary, supervised or restricted) visits with the
parent who does not have custody, the courts should not deprive
such a parent of all visitation privileges absent a clear showing
that any contact with such parent would be detrimental to the
child. It would follow that any diminution of visitation privileges
* * * should be no greater than necessary to serve the best
interests of the child. Where it is possible to serve such interests
by an order providing for less than full deprivation of visitation
privileges, the court should make such an order and no more.
Devine, supra, 213 Cal.App.2d at 553, 29 Cal.Rptr. 132.
Id. at 352.
{¶20} This court notes initially that this is not a case where visitations are
limited due to a finding of dependency, neglect or abuse. Rather, this is a request
for modification of visitation of two parents who are both fit. The request to have
Michael’s visitation reduced was made by Nicole and as such she bore the burden
of proof on the matter. A review of the record in this case indicates that there was
no evidence to support a finding that the visits with Michael were detrimental to
Marcus and Jonathan to such an extent to restrict his visits so dramatically. In
fact, contrary to the findings of the magistrate, neither Donovan nor Self testified
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that it was the time with Michael that was the problem. They both testified it was
not the visitation schedule, but was rather the difference between the two
households resulting in a lack of consistency that was causing the acting out. Tr.
26-27, 44. The GAL indicated in his report that both Michael AND Nicole are at
fault for the issues. Michael was not as involved as he would like and Nicole had
not cooperated with the counselors as requested. See GAL Exhibit 1. Although
Nicole alleged that she thought the children were in danger at Michael’s home,
there was no evidence to support that. The only claims she could make were the
injuries to Jonathan and the allegation that Michael was too harsh on his
discipline. Nicole admitted that those injuries were investigated by the police, but
no charges were filed. Michael testified that the injuries were deemed to be
accidental by both the police and children’s services. It is clear that the
magistrate, in reaching her decision has picked isolated bits of testimony, taken
them out of context and based her findings on those determinations. For example,
there was no evidence presented that Michael lacked parenting skills merely
because he allowed his 17 year old daughter to die his hair bright red. While it
may not be a decision that many people would make, it does not in and of itself
indicate poor parenting. In addition, the finding of fact that Michael is a poor
father because he takes the children for activities, such as Chuck-E-Cheese, and
allows them to stay up past their bedtimes, is merely an opinion. Many parents
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who only get to spend time with their children for limited periods of time every
other weekend spend more time doing fun things than the residential parent will be
able to do. Unfortunately, it is a natural consequence of divorce that the
residential parent will more likely be the regular disciplinarian. This does not
mean that the visits are detrimental to the children. Without any evidence to
support her contentions that the visits are harmful to the children, Nicole has not
carried her burden of proof for reducing Michael’s visitation. The second
assignment of error is sustained.
{¶21} Michael claims in the third assignment of error that the trial court did
not properly consider the applicable factors when reaching its decision. The
modification of visitation is controlled by R.C. 3109.051(D). When establishing a
visitation schedule, the trial court must consider the sixteen statutory factors. R.C.
3109.051(D). Although it is preferable for the trial court to mention R.C.
3109.051 and that it applied the applicable factors, it is not mandatory that the trial
court do so. Cavagnaro v. Cavagnaro, 12th Dist. Warren No. CA2012-02-012,
2012-Ohio-4024. “However, the trial court’s findings and/or the record should
indicate that the court considered the statutes and its factors when it rendered its
decision.” Id. at ¶9.
{¶22} Here, while the magistrate indicated that R.C. 3109.051 is the
applicable statute, there is no indication in the record that the factors were applied
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or to the reasoning of the trial court in its ruling. In its judgment ruling on the
objections to the magistrate’s decision, the trial court agreed that there were errors
in the findings of fact and that these errors affected the application of the law and
must be modified. However, the trial court gives this court no basis for
determining whether the trial court considered the statutory factors, especially
since the final judgment differs substantially from the prior order ruling on the
objections to the magistrate’s decision.
In reviewing a trial court’s opinion, we must be able to ascertain
the information and reasoning the court utilized in determining
parenting time matters. When that analysis and clear reasoning
is absent from the trial court’s written opinion, it is impossible to
review the decision without substituting the trial court’s
judgment with our own. As doing so is not permitted in an abuse
of discretion review, we are forced to ask the trial court to
clearly enumerate its reasoning and to follow statutory precepts
before we can review its decision to modify the parenting time
schedule.
Cavagnaro, supra at ¶12. Thus, the third assignment of error is sustained.
{¶23} The fourth assignment of error challenges the standard of review
used by the trial court when reviewing the magistrate’s decision.
If one or more objections to a magistrate’s decision are timely
filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as
to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately
applied the law. Before so ruling, the court may hear additional
evidence but may refuse to do so unless the objecting party
demonstrates that the party could not, with reasonable diligence,
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have produced that evidence for consideration by the magistrate.
(Emphasis added.)
Civ.R. 53(D)(4)(d). Thus, the trial court must conduct an independent review of
the evidence when reviewing a magistrate’s decision. Mackenbach v.
Mackenbach, 3d Dist. Hardin No. 6-11-03, 2012-Ohio-311. A failure to conduct
an independent review is an abuse of discretion which may be reversed upon
appeal. Id. at ¶9; Figel v. Figel, 3d Dist. Mercer No. 10-08-14, 2009-Ohio-1659.
“After completing its [independent] review the trial court may adopt, reject, or
modify the magistrate’s decision.” Mackenbach, supra at ¶9 (quoting Teawalt v.
Peacock, 3d Dist. Shelby No. 17-10-18, 2011-Ohio-1726. Even if the judgment
entry states that an independent review was conducted, if the record indicates
otherwise, the opinion may be reversed. Mackenbach, supra at ¶13.
{¶24} In this case, Michael claims that the trial court failed to conduct an
independent review. The law is set forth above. However, having previously
found error which will require a remand for further proceedings, this assignment
of error is now moot and need not be addressed further. App.R. 12(A)(1)(c).
{¶25} In his fifth and final assignment of error, Michael claims that the trial
court erred by making his visitation contingent upon his erecting a fence. As
discussed above, the finding of the trial court is being remanded for further
review. Thus, this matter may not be final. The assignment of error is currently
moot and will not be addressed further at this time. App.R. 12(A)(1)(c).
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{¶26} Having found error prejudicial to Appellant, the judgment of the
Court of Common Pleas of Mercer County, Domestic Relations Division, is
reversed and the matter is remanded for further proceedings consistent with this
opinion.
Judgment Reversed and
Cause Remanded
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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