Warner v. Thomas , 2014 Ohio 3544 ( 2014 )

[Cite as Warner v. Thomas, 2014-Ohio-3544.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
BENJAMIN LEE WARNER,
PLAINTIFF-APPELLEE, CASE NO. 17-14-04
v.
PENNY ANN THOMAS, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Juvenile Division
Trial Court No. 2010-PAT-0001
Judgment Reversed and Cause Remanded
Date of Decision: August 18, 2014
APPEARANCES:
John A. Poppe for Appellant
Rob C. Wiesenmayer, II for Appellee
Case No. 17-14-04
SHAW, J.
{¶1} Defendant-appellant, Penny Ann Thomas (“Penny”), appeals the
December 20, 2013 judgment of the Shelby County Court of Common Pleas,
Juvenile Division, finding the objections to the magistrate’s decision filed by
plaintiff-appellee, Benjamin Lee Warner (“Benjamin”) to be well-taken and
dismissing the motions to terminate the shared parenting decree filed separately by
each party. Specifically, the trial court found “in its independent review, and upon
the totality of the evidence, that a change has not occurred in the circumstances of
[the parties’ child] or her parents.” (Doc. No. 319 at 4) (emphasis sic). On this
basis, the trial court declined to adopt the magistrate’s recommendation of
terminating the parties’ shared parenting decree and designating Penny as the
child’s residential parent.
{¶2} The parties share custody of their daughter, who was born in April of
2009. In 2010, the parties entered into a shared parenting arrangement, in which
both parties were named legal custodians of their child and a detailed visitation
schedule was established. The shared parenting plan designated Penny as
“residential parent solely for the purpose of interpreting the Standard Order of
Parenting Time.” (Doc. No. 17 at 3). The trial court accepted the parties’
arrangement and issued an order approving the shared parenting plan. The shared
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parenting decree was subsequently modified by agreement of the parties and by
the trial court’s approval.
{¶3} On March 18, 2013, Penny filed a “Motion to Terminate Shared
Parenting Plan; Motion for Custody and Child Support; Motion [for] Supervised
Parenting.” In this motion, Penny argued that the parties’ shared parenting plan
was no longer in their child’s best interests. Penny requested that the trial court
terminate the parties’ shared parenting decree, designate her as the child’s
residential parent and legal custodian, and order Benjamin to have only supervised
parenting time with their daughter.
{¶4} On April 8, 2010, Benjamin filed “Plaintiff’s Motion to Modify
Parental Rights and Responsibilities.” In his motion, Benjamin requested that the
trial court terminate the parties’ shared parenting decree and designate him as the
residential parent and legal custodian of their child, or “in the alternative” adopt
the new shared parenting plan submitted with his motion. (Doc. No. 221).
{¶5} On September 9, 2013, the magistrate conducted a final hearing on the
parties’ motions, where both sides presented evidence in support of their positions.
On September 27, 2013, the magistrate issued a thorough decision finding that a
change in circumstance had occurred. The magistrate also considered whether
continuing shared parenting was in the child’s best interest and concluded that “the
parties cannot cooperate and make decisions jointly and the parties cannot
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encourage the sharing of love, affection and contact. As a result, the Magistrate
believes that the Court should grant the request of each party and terminate the
Shared Parenting Plan.” (Doc. No. 305 at 3). The magistrate analyzed the factors
enumerated in R.C. 3109.04(F)(1) and determined that designating Penny as
residential parent and legal custodian was in the child’s best interest. Accordingly,
the magistrate recommended that the parties’ shared parenting decree be
terminated, that Penny be designated the child’s residential parent and legal
custodian, and that Benjamin be granted visitation in accordance with the local
rules. Benjamin subsequently filed objections to the magistrate’s decision.
{¶6} On December 20, 2013, the trial court issued its judgment entry,
conducting its independent review of the matter. In a detailed analysis, the trial
court concluded that the record did not support the magistrate’s decision finding a
change in circumstances sufficient to warrant a modification of the shared
parenting decree. The trial court did not address the magistrate’s
recommendations of whether continuing or terminating shared parenting was in
the child’s best interest because it determined that the “threshold matter” of
change in circumstance was not met and therefore further review was not
necessary. (Doc. No. 319 at 4). The trial court overruled and dismissed both
parties’ motions and ordered the existing shared parenting decree to remain in
effect.
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{¶7} Penny filed this appeal, asserting the following assignment of error.
THE TRIAL COURT DID NOT APPLY THE CORRECT
LEGAL STANDARD TO THE CASE SUB JUDICE.
{¶8} In her sole assignment of error, Penny argues that the trial court
erroneously applied the two-step standard for analyzing a modification of an
existing shared parenting decree which requires that a “change in circumstances”
has occurred as well as a finding that the modification is in the child’s best
interest. Penny maintains that both parties filed motions to terminate the existing
shared parenting decree which implicates a different statutory section and does not
require a showing of a “change in circumstances.” Because Penny raises a
question of law, we apply a de novo standard of review. Goodyear Tire & Rubber
Co. v. Aetna Cas. & Sur. Co., 95 Ohio St. 3d 512, 2002-Ohio-2842, ¶ 4.
{¶9} Section 3109.04(E) of the Ohio Revised Code governs the
modification and termination of a shared parenting decree and provides in relevant
part:
(1)(a) The court shall not modify a prior decree allocating
parental rights and responsibilities for the care of children
unless it finds, based on facts that have arisen since the prior
decree or that were unknown to the court at the time of the prior
decree, that a change has occurred in the circumstances of the
child, the child’s residential parent, or either of the parents
subject to a shared parenting decree, and that the modification
is necessary to serve the best interest of the child. In applying
these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting
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decree, unless a modification is in the best interest of the child
and one of the following applies:
(i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to
a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of
both parents under a shared parenting decree, has been
integrated into the family of the person seeking to become the
residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to
the child.
***
(2) In addition to a modification authorized under division (E)(1)
of this section:
(a) Both parents under a shared parenting decree jointly may
modify the terms of the plan for shared parenting approved by
the court and incorporated by it into the shared parenting
decree. Modifications under this division may be made at any
time. The modifications to the plan shall be filed jointly by both
parents with the court, and the court shall include them in the
plan, unless they are not in the best interest of the children. If
the modifications are not in the best interests of the children, the
court, in its discretion, may reject the modifications or make
modifications to the proposed modifications or the plan that are
in the best interest of the children. * * *.
(b) The court may modify the terms of the plan for shared
parenting approved by the court and incorporated by it into the
shared parenting decree upon its own motion at any time if the
court determines that the modifications are in the best interest of
the children or upon the request of one or both of the parents
under the decree. Modifications under this division may be made
at any time. The court shall not make any modification to the
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plan under this division, unless the modification is in the best
interest of the children.
(c) The court may terminate a prior final shared parenting
decree that includes a shared parenting plan approved under
division (D)(1)(a)(i) of this section upon the request of one or
both of the parents or whenever it determines that shared
parenting is not in the best interest of the children. The court
may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under division
(D)(1)(a)(ii) or (iii) of this section if it determines, upon its own
motion or upon the request of one or both parents, that shared
parenting is not in the best interest of the children. If
modification of the terms of the plan for shared parenting
approved by the court and incorporated by it into the final
shared parenting decree is attempted under division (E)(2)(a) of
this section and the court rejects the modifications, it may
terminate the final shared parenting decree if it determines that
shared parenting is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting
decree under division (E)(2)(c) of this section, the court shall
proceed and issue a modified decree for the allocation of
parental rights and responsibilities for the care of the children
under the standards applicable under divisions (A), (B), and (C)
of this section as if no decree for shared parenting had been
granted and as if no request for shared parenting ever had been
made.
R.C. 3109.04(E). In a recent opinion, Drees v. Drees, 3d Dist. No. 10-13-04,
2013-Ohio-5197, this Court thoroughly analyzed the different legal standards for a
modification and a termination of a shared parenting decree and succinctly noted
that:
[W]hen a trial court engages in a modification of custody, rather
than termination of a shared parenting decree, then the two-step
procedure of R.C. 3109.04(E)(1)(a) must be used. Conversely,
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when the court terminates shared parenting and issues a new
parenting decree pursuant to R.C. 3109.04(E)(2)(d), “as if no
decree for shared parenting had been granted and as if no
request for shared parenting ever had been made,” the standard
of R.C. 3109.04(E)(2)(c) applies.
Drees at ¶ 16. As stated above, R.C. 3109.04(E)(2)(c) permits a trial court to
terminate a share parenting decree upon determining “that shared parenting is not
in the best interest of the children.”
{¶10} In the case sub judice, the record reflects that both parties filed
motions to terminate the shared parenting decree. In its decision, the magistrate
conducted the two-step analysis under R.C. 3109.04(E)(1)(a) and found a change
in circumstance existed, however as previously discussed such a determination
was unnecessary. Nevertheless, the magistrate ultimately found that shared
parenting was not in the child’s best interest and applied the appropriate standard
under R.C. 3109.04(E)(2)(c) in recommending the existing shared parenting
decree be terminated. The magistrate also recommended that Penny be designated
residential parent and legal custodian of the parties’ child and that Benjamin be
given local rule visitation, which would require the issuance of a new parental
decree pursuant to R.C. 3109.04(E)(2)(d) upon the termination of the existing
shared parenting decree.
{¶11} When the trial court conducted its independent review of the
magistrate’s decision, it noted that the parties each filed motions to terminate the
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shared parenting decree. However, in a footnote the trial court mistakenly
characterizes Benjamin’s motion as follows: “Plaintiff’s motion seeks the
termination of the September 2, 2010 plan and the request to approve a new shared
parenting plan.” (Doc. No. 319 at 2) (emphasis sic). The record establishes that
Benjamin’s motion stated as follows: “Plaintiff/Father requests that this Court
terminate the parties’ shared parenting plan, and name Plaintiff/Father the
residential parent and legal custodian of said child, or in the alternative, that this
Court adopt Plaintiff/Father’s Shared Parenting Plan of Father as permanent
orders of this Court.” (Doc. No. 221) (emphasis sic).
{¶12} Notwithstanding this fact, the trial court proceeded to analyze the
case under the legal standard for modification of a shared parenting decree. The
trial court then declined to adopt the magistrate’s decision based upon its
determination that the record did not support a “change in circumstance” finding
without addressing the appropriate legal standard of whether continuing shared
parenting is the child’s best interest. The trial court also stated the following
orders in its judgment entry:
[Penny’s] motion to modify the shared parenting decree is
OVERULED and DISMISSED;
[Benjamin’s] motion to modify the shared parenting decree (and
related relief) is OVERRULED and DISMISSED.
(Doc. No. 319 at 4).
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{¶13} Contrary to the trial court’s characterization of the parties’ motions
above, the record clearly indicates that the parties requested termination of the
existing shared parenting decree and that the magistrate recommended the same.
We note that R.C. 3109.04(E)(2)(c) does not explicitly require a best interest
determination when the trial court merely continues the implementation of a
shared parenting decree. Nevertheless, when a trial court is reviewing a
magistrate’s specific recommendation to terminate a shared parenting decree, we
believe a best interest analysis is more consistent with the intent of R.C.
3109.04(E)(2)(c) and is the better practice, even if the trial court ultimately
declines to adopt the recommendation. Accordingly, we have no choice but to
conclude that the trial court erred when it failed to apply the appropriate legal
standard for termination and when it failed to conduct an inquiry regarding
whether continuing or terminating shared parenting is in the best interest of the
child.
{¶14} We note that both the magistrate and the trial court relied on the
Supreme Court of Ohio’s decision in Fisher v. Hasenjager, 116 Ohio St. 3d 53,
2007-Ohio-5589 in applying the two-step analysis of R.C. 3109.04(E)(1)(a) to this
case. However, as we discussed in Drees, Fisher is inapplicable to this case
because the Court in Fisher addressed a modification of the designation of
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residential parent and not a termination of an existing shared parenting decree.
See Drees at ¶¶ 14-16.
{¶15} For all these reasons, the assignment of error is sustained, the
judgment of the trial court is reversed and the cause is remanded to the trial court
to address whether shared parenting is in the best interest of the parties’ child.
Judgment Reversed and
Cause Remanded
ROGERS and PRESTON, J.J., concur.
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