Sayre v. Furgeson , 2016 Ohio 3500 ( 2016 )

[Cite as Sayre v. Furgeson, 2016-Ohio-3500.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
MARY ELIZABETH SAYRE,
CASE NO. 17-15-16
PLAINTIFF-APPELLANT,
v.
THOMAS A. FURGESON, OPINION
DEFENDANT-APPELLEE.
Appeal from Shelby County Common Pleas Court
Domestic Relations Division
Trial Court No. 12FSO0001
Judgment Affirmed
Date of Decision: June 20, 2016
APPEARANCES:
James R. Kirkland for Appellant
Roberta S. Fay for Appellee
Case No. 17-15-16
WILLAMOWSKI, J.
I. Introduction
{¶1} Plaintiff-appellant, Mary Elizabeth Sayre (“Mary”), brings this appeal
from the judgment of the Common Pleas Court of Shelby County, Ohio, which
adopted the magistrate’s recommendations on the motion for change of custody
filed by Defendant-appellee, Thomas Alan Furgeson (“Thomas”), and ordered that
Thomas be named the residential parent and legal custodian of the parties’ minor
child, C.F. For the reasons that follow, we affirm the trial court’s judgment.
II. Factual and Procedural Background
{¶2} The parties were married to each other in June 1997, in the state of
Virginia. Two children were born to this marriage, C.F., a boy, and L.F., a girl.
During the course of the marriage, the family moved to Albany County,
Wyoming. On March 1, 2011, a Confidential Judgment Entry and Decree of
Divorce was filed in the District Court, Second Judicial District, in and for Albany
County, Wyoming, dissolving the parties’ marriage. The parties were awarded
“joint legal custody” of the minor children, but Mary had the primary physical
custody and control of the children, while Thomas had visitation rights. (R. at 1,
Ex. A.) The divorce decree incorporated a document entitled, “Child Custody,
Child Support and Property Settlement Agreement,” which was executed by the
parties. (Id., Ex. A(1).) Among others, the document outlined the duties and
responsibilities of the parties with respect to the child custody, visitation, and
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support. The document restated that “the parties will share joint legal custody.”
(Id.) On the same date, a Redacted Judgment and Decree of Divorce was filed,
removing the children’s names from the order. Throughout this opinion we
sometimes refer to both decrees jointly as “the Wyoming decree.” We will refer
to the “Child Custody, Child Support and Property Settlement Agreement,” as “the
Wyoming agreement.”
{¶3} After the divorce became final, Thomas moved to the state of
Washington, where he later remarried. Mary moved to Shelby County, Ohio.
After their move out of the state of Wyoming, the parties entered a stipulation to
modify the prior judgment and decree of divorce. (R. at 1, Ex. B.) Therefore, on
March 9, 2012, the district court in Albany County, Wyoming, entered a
“Confidential Stipulated Order Modifying Judgment and Decree of Divorce,”
which stated that “[d]ue to the geographic distance between the parties, material
changes of circumstance have occurred since entry of said Redacted/Confidential
Judgment and Decree of Divorce which warrant modification of its visitation
provisions in the best interest of the minor children of the parties.” (Emphasis
sic.) (Id.) Although the order modified visitation rights of the parties, it left
unchanged the portions of the prior order that awarded joint legal custody to the
parties.
{¶4} On April 9, 2012, Mary filed a “Petition for Registration of Foreign
Judgment” in the Common Pleas Court of Shelby County, Ohio, requesting that
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the prior orders of the district court from Albany County, Wyoming, be registered
in Ohio. (R. at 1.) Mary specifically requested, however, that the matters of child
support remain within the jurisdiction of the district court in Albany County,
Wyoming. (R. at 16.) Thomas agreed to have the case transferred to Ohio, and
the trial court entered a judgment registering the Wyoming decree of divorce,
together with its modification, in the State of Ohio.1 (R. at 18.)
{¶5} Thomas maintained a relationship with his children after his move to
Washington. As it relates to C.F., who is the subject of the dispute, Thomas talked
to him on the phone several times per week; they exchanged emails, text
messages, and communicated by Skype, FaceTime, and Instagram. C.F. spent
some time with Thomas in Washington in the summer, during the holidays, and
spring break. C.F. became involved in a creative theater camp, where he made a
lot of friends. He became close with Thomas’s wife and her children, C.F.’s step-
siblings. At some point, C.F. started talking about wanting to live with his dad in
Washington. Thomas was supportive of the idea but Mary objected to it.
{¶6} On November 4, 2014, Thomas filed a “Motion to Terminate
Parenting Plan; Motion to Modify Shared Plan; Motion for In Camera Interview,”
in the Shelby County Court of Common Pleas. (R. at 23.) The pleading indicated
that “the shared parenting plan is no longer in [C.F.’s] best interest”; C.F. “no
1
Although the document filed does not except the child support from the registration in Ohio, the parties
agree that the district court in Albany County, Wyoming, retained jurisdiction over the child support issues.
(App’t Br. at 2; App’ee Br. at 6.) We are not asked to review the child support issues or the trial court’s
action registering the Wyoming decree in Ohio. Therefore, our comment herein has no effect on the
resolution of the instant appeal.
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longer wishes to reside with his Mother in Ohio”; and “it is in [C.F.’s] best interest
to reside with Father.” (Id.) Therefore, Thomas requested that the trial court
“modify the Shared Parenting Plan or in the alternative terminate[] the Shared
Parenting Plan,” changing the residential status in the summer of 2015, to allow
C.F. to start ninth grade in the state of Washington. (Id.) The motion made no
requests with respect to the other minor child, L.F.
{¶7} On February 23, 2015, Mary filed a “Motion Regarding Shared
Parenting Plan and For Increase in Child Support.”2 (R. at 63.) In this pleading,
Mary opposed Thomas’s request to change C.F.’s residential arrangements and
expressed her willingness “to continue the Shared Parenting Plan.” (Id.) In the
alternative, Mary requested that “the Shared Parenting Plan be terminated” as not
being in the children’s best interest. (Id.) Mary also filed a trial memorandum, in
which she argued that a change in custody was not warranted due to a lack of
change in circumstances. (R. at 83.) She further argued that a change in custody
was not in the best interest of C.F. and that the harm that would result from the
change outweighed the benefits of leaving in place the Wyoming decree. (Id.)
Both parties filed additional pleadings in support of their respective positions.
(See R. at 84, 86, 87, 90, 92.)
2
Since pursuant to Mary’s request, child support issues were retained by the State of Wyoming, they were
not reviewed by the trial court. (See R. at 170, at 8.) Our discussion of these issues is limited to the
necessary references herein.
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{¶8} On March 6, 2015, the magistrate of the trial court conducted an in-
camera interviews with C.F. and L.F. Thereafter, on March 30, 2015, the parties
appeared at a hearing and presented evidence on their positions with respect to the
change in custody. On May 5, 2015, the magistrate issued his decision, with the
findings of fact and conclusions of law, in which he recommended that the current
parenting plan be terminated. (R. at 94.) The magistrate further recommended
that Thomas be designated as the residential parent and legal custodian of C.F.,
while Mary be designated as the residential parent and legal custodian of L.F.3
(Id.)
{¶9} Mary filed a “Request for Findings of Fact and Conclusions of Law,”
and the magistrate filed an order denying the request on the basis that his decision
“contain[ed] factual findings and conclusions of law.” (R. at 100, 102.) Mary
moved to set aside this order, alleging that the findings in the magistrate’s May 5,
2015 decision were not sufficiently explained or supported by law. (R. at 108.)
The trial court denied the motion, concluding that the thirteen-page decision issued
by the magistrate was sufficiently specific to satisfy the requirements of Civ.R.
53(D)(3)(a)(ii) for findings of fact and conclusions of law. (R. at 114.)
{¶10} On May 20, 2015, Mary filed her objections to the magistrate’s
recommendations and requested permission to file supplemental objections upon
3
Upon concluding his recommendations as to the custody and visitation schedule, the magistrate added that
“[i]f, after completing his freshman year in high school, [C.F.] decides that he is unhappy and wishes to
return to Ohio, the parties should agree that [C.F.] may return, without the need for further litigation.” (Id.
at 13.) It does not appear that the trial court adopted this part of the magistrate’s recommendations.
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the filing of the transcript. (R. at 107.) On August 13, 2015, the trial court issued
an interim order by which it designated Thomas as the residential parent and legal
custodian of C.F., and Mary as the residential parent and legal custodian of L.F.
(R. at 121.) The order was to take effect immediately. Mary’s “objections” to this
order, which the trial court treated as a motion for reconsideration, were denied.
(See R. at 127, 132.) Mary filed supplemental objections to the magistrate’s
recommendations on September 14, 2015. (R. at 159.) On October 7, 2015, the
trial court overruled Mary’s objections to the magistrate’s recommendations and
issued an order terminating the existing parenting plan, designating Thomas as the
residential parent and legal custodian of C.F., and Mary as the residential parent
and legal custodian of L.F. (R. at 170.)
{¶11} Mary filed this timely appeal in which she raises five assignments of
error, as quoted below.
III. Assignments of Error
1. Trial Court erred as a matter of law, abused its discretion and
erred against the weight of the evidence by adopting the
magistrate’s decision to terminate the existing Shared Parenting
Plan, over the option of modification, and therefore terminating
Plaintiff-Appellant, Mary Sayre’s existing residential care and
allocated parental rights and responsibilities over the parties’
minor child, [C.F.].
2. Trial Court erred as a matter of law, abused its discretion and
erred against the weight of the evidence by determining that there
was a substantiated and sufficient change in circumstances
pursuant to Ohio [R]evised [C]ode 3109.04(E)(1)(a) to modify
the existing Shared Parenting Plan.
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3. Trial Court erred as a matter of law, abused its discretion and
erred against the weight of the evidence by determining
Defendant-Appellee, Thomas Furgeson, as the residential parent
of the parties’ minor child, [C.F.], was in the best interest of the
child pursuant to 3109.04(F)(1) to modify the existing Shared
Parenting Plan.
4. Trial Court erred as a matter of law, abused its discretion and
erred against the weight of the evidence by failing to determine,
in addition to the third assignment of error, the requisite
threshold in Ohio Revised Code Section 3109.04(E)(l)(a)(i)-(iii),
to modify the existing Shared Parenting Plan.
5. Trial Court erred as a matter of law, abused its discretion and
erred against the weight of the evidence by adopting the
magistrate’s decision refusing Plaintiff-Appellant, Mary Sayre’s
request for findings and conclusion of law in accordance with
civil rule 53D(3)(a)(ii).
IV. Law and Analysis
First Assignment of Error—Custody Modification Procedure
{¶12} The first assignment of error concerns a dispute over the procedure
that was used to modify the parties’ out-of-state custody determination. Because it
is a question of law, we apply de novo standard of review. Warner v. Thomas, 3d
Dist. Shelby No. 17-14-04, 2014-Ohio-3544, ¶ 8. But before we address the exact
issue presented by Mary in her brief, we outline Ohio legal procedures used for
modifications of parenting decrees, including parenting decrees that originate
outside of Ohio.
A. Ability to Change an Out-of-State Custody Determination
{¶13} We start with recognizing that the trial court’s authority to change
the decree of the district court from Albany County, Wyoming stems from the
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Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in
Chapter 3127 of the Revised Code. R.C. 3127.17 states that a court of this state
may “modify4 a child custody determination made by a court of another state”
only if two conditions are satisfied. The first condition requires that “the court of
this state has jurisdiction to make an initial determination under division (A)(1) or
(2) of section 3127.15 of the Revised Code.” R.C. 3127.17. The second condition
is satisfied if one of the following applies:
(A) The court of the other state determines that it no longer has
exclusive, continuing jurisdiction under section 3127.16 of the
Revised Code or a similar statute of the other state or that a court of
this state would be a more convenient forum under section 3127.21
of the Revised Code or a similar statute of the other state.
(B) The court of this state or a court of the other state determines
that the child, the child’s parents, and any person acting as a parent
do not presently reside in the other state.
Id.
{¶14} Both conditions seem to have been satisfied in the instant case. C.F.
and L.F. have lived in Ohio since August 2011. (See R. at 1; R. at 18.) Therefore,
the Common Pleas Court of Shelby County, Ohio has jurisdiction to make an
initial determination under division (A)(1) of R.C. 3127.15, which requires that
Ohio “is the home state of the child on the date of the commencement of the
proceeding.” Additionally, the Common Pleas Court of Shelby County
4
Within UCCJEA, “ ‘Modification’ means a child custody determination that changes, replaces,
supersedes, or is otherwise made after a determination concerning the same child, whether or not it is made
by the court that made the previous determination.” R.C. 3127.01(11). Therefore, we read the word
“modify” herein to encompass any procedure that results in changes to an out-of-state custody
determination, including a procedure terminating a prior parenting decree.
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determined that neither the parties nor the children reside in Wyoming, thus
satisfying R.C. 3127.17(B). (See R. at 18.)
B. Use of R.C. 3109.04 for the Modification of the Wyoming Parenting Decree
{¶15} When asking to modify or terminate the Wyoming decree, both
parties relied on an Ohio statute for allocation of parental rights and
responsibilities, R.C. 3109.04. The application of Ohio law to modify the custody
determination seems to be consistent with the provisions of UCCJEA.5 See R.C.
3127.36(A) (providing for the use of “relief normally available under the law of
this state to enforce a registered child custody determination made by a court of
another state”); and R.C. 3127.36(B) (allowing for modification of a registered
child custody determination of the court of another state “in accordance with
sections 3127.15 to 3127.24 of the Revised Code”); see also R.C. 3127.51 (“In
applying and construing sections 3127.01 to 3127.53 of the Revised Code,
consideration shall be given to the need to promote uniformity of law with respect
to its subject matter among states that enact a uniform child custody jurisdiction
and enforcement act.”).
{¶16} Although both parties agreed that R.C. 3109.04(E) should be used to
resolve the case, they differed on which paragraph within that division controls.
R.C. 3109.04(E) includes several methods for modifying prior arrangements that
5
While we note that the Wyoming agreement included a provision indicating that it should be construed
under Wyoming law, we are not here construing or modifying the agreement but the entire custody decree.
Furthermore, neither party demanded that Wyoming law be applied to the agreement. On the contrary, the
parties chose to apply Ohio law to resolve the dispute.
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allocate parental rights and responsibilities. The method of modification depends
on the type of the parenting arrangement originally entered. We thus summarize
these methods below.
C. Standards for Custody Modification Proceedings in Ohio
{¶17} To start with, R.C. 3109.04(E)(1)(a) provides a two-step procedure
that is required for modification of any prior court-approved parenting decree,
including a shared parenting decree. See Fisher v. Hasenjager, 116 Ohio St. 3d 53,
2007-Ohio-5589, 876 N.E.2d 546, ¶ 11. Under this standard, the court must first
find 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.”
Wooten v. Schwaderer, 3d Dist. Union No. 14-08-13, 2008-Ohio-3221, ¶ 3,
quoting R.C. 3109.04(E)(1)(a). Second, the court must determine that “the
modification is necessary to serve the best interest of the child.” Id. Under R.C.
3109.04(E)(1)(a), the finding of a change of circumstances is a necessary
prerequisite to the further inquiry of whether the modification would be in the best
interest of the child. Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344,
¶ 38. R.C. 3109.04(E)(1)(a) further prescribes that “the court shall retain the
residential parent designated by the prior decree or the prior shared parenting
decree, unless a modification is in the best interest of the child * * * ” and one of
the subdivisions (i), (ii), or (iii) of R.C. 3109.04(E)(1)(a) applies.
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{¶18} In contrast to the two-step procedure outlined above, different
standards apply to modification of a shared parenting decree that includes a shared
parenting plan. These standards are outlined in R.C. 3109.04(E)(2). See Kougher
v. Kougher, 7th Dist. No. 10 MA 54, 194 Ohio App. 3d 703, 2011-Ohio-3411, 957
N.E.2d 835, ¶ 11 (“Although the language of R.C. 3109.04(E)(1)(a) appears, at
first glance, to cover all situations dealing with any change to a shared parenting
decree, the next section of the statute clearly provides an alternative review * * *
.”); id. at ¶ 15 (“The wording of the statute leads to the inescapable conclusion that
R.C. 3109.04(E)(2) and its subsections provide different procedures from those set
forth in R.C. 3109.04(E)(1) and its subsections.”). These standards also
distinguish between a shared parenting plan and a decree because,
Within the custody statute, a “plan” is statutorily different from a
“decree” or an “order.” A shared-parenting order is issued by a court
when it allocates the parental rights and responsibilities for a child.
R.C. 3109.04(A)(2). Similarly, a shared-parenting decree grants the
parents shared parenting of a child. R.C. 3109.04(D)(1)(d). An order
or decree is used by a court to grant parental rights and
responsibilities to a parent or parents and to designate the parent or
parents as residential parent and legal custodian.
However, a plan includes provisions relevant to the care of a child,
such as the child’s living arrangements, medical care, and school
placement. R.C. 3109.04(G). A plan details the implementation of
the court’s shared-parenting order. For example, a shared-parenting
plan must list the holidays on which each parent is responsible for
the child and include the amount a parent owes for child support.
Fisher at ¶ 29-30.
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{¶19} Under R.C. 3109.04(E)(2)(a) and (b), both parents may jointly
modify the terms of a shared parenting plan, or the trial court may modify the
terms of the plan. This action contemplates a continuance of the shared parenting
decree, with changes to the terms of the shared parenting plan only. See Fisher at
¶ 27, 29. But the designation of residential parent and legal custodian is not a term
of a shared parenting plan and thus, the designation of residential parent and legal
custodian cannot be modified under the standards outlined in R.C.
3109.04(E)(2)(a) and (b). Fisher at ¶ 27, 31.
{¶20} Another action that changes a prior shared parenting arrangement is
termination of the entire shared parenting decree under R.C. 3109.04(E)(2)(c).
Here, depending on whether the original shared parenting plan was agreed upon
by both parents or by one parent only, termination could occur upon request of one
or both of the parents, or upon the trial court’s determination that shared parenting
is not in the best interest of the child. R.C. 3109.04(E)(2)(c); Drees v. Drees, 3d
Dist. Mercer No. 10-13-04, 2013-Ohio-5197, ¶ 11-12.
{¶21} In summary, the statute directs that the two-step standard of R.C.
3109.04(E)(1)(a) must be used in all situations except: (1) modifying a term of a
shared parenting plan or (2) terminating a shared parenting decree that includes a
shared parenting plan.6 Of interest, modifying “the designation of residential
6
Although under the statutory language the trial court does not need to find a change in circumstances in
order to terminate a shared parenting decree, we have noted that R.C. 3104.04(E)(2)(c) “impliedly
contemplates that some significant change of circumstances has occurred for the shared parenting that was
in the child’s best interest when implemented to be no longer in this child’s best interest.” Drees at ¶ 13,
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parent and legal custodian of a child” in a shared parenting decree, without
terminating the entire decree, requires the two-step procedure of R.C.
3109.04(E)(1)(a), because the designation of residential parent and legal custodian
is not a term of a shared parenting plan. Fisher, 116 Ohio St. 3d 53, 2007-Ohio-
5589, 876 N.E.2d 546, at syllabus; see also R.C. 3109.04(K) and (L)(6) (providing
that shared parenting could be specified in manners other than designating each
parent the residential parent and legal custodian of the child).
{¶22} Because of the difference in standards applicable to shared parenting
decrees as opposed to other parenting decrees, it is important to determine whether
the Wyoming decree is a shared parenting decree that includes a shared parenting
plan as contemplated by R.C. 3109.04(E)(2).
D. The Wyoming Parenting Decree under Ohio Law
{¶23} The Wyoming decree awarded Thomas and Mary joint legal
custody.7 We have previously recognized that under Ohio law the concept of
shared parenting “refers to an agreement between parents concerning the care and
custody of their children and was previously called ‘joint custody.’ ” Adams v.
Sirmans, 3d Dist. Hancock No. 5-08-02, 2008-Ohio-5400, ¶ 6, quoting In re
Bonfield, 97 Ohio St. 3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 17; see also
Fisher, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 29 (holding that
citing R.C. 3109.04(A)(2) and R.C. 3109.04(D) (requiring the court to determine that shared parenting is in
the best interest of the children prior to approving the shared parenting plan and issuing a shared parenting
order).
7
Our review of Wyoming Statutes indicates that they “do not define ‘joint custody’ ” and in fact, “such
arrangements are not favored.” Testerman v. Testerman, 2008 WY 112, 193 P.3d 1141, ¶ 14-15 (Wyo.).
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“a shared-parenting decree grants the parents shared parenting of a child”). Based
on this definition and on the Ohio Supreme Court’s reasoning in Bonfield at ¶ 17,
it would appear that the Wyoming decree granting Thomas and Mary joint custody
over their children is analogous to an Ohio shared parenting decree.
{¶24} Similarly, it would be proper to recognize the Wyoming agreement
as akin to a shared parenting plan in Ohio.8 The Ohio Supreme Court recognized
the characteristics of a shared parenting plan as follows:
a plan includes provisions relevant to the care of a child, such as the
child’s living arrangements, medical care, and school placement.
R.C. 3109.04(G). A plan details the implementation of the court’s
shared-parenting order. For example, a shared-parenting plan must
list the holidays on which each parent is responsible for the child and
include the amount a parent owes for child support.
Fisher at ¶ 30; see also R.C. 3109.04(G) (listing the provisions that shall be
covered by a shared parenting plan). The Wyoming agreement includes
provisions for visitation, medical support, child support, and residential
arrangements. While school placement is not expressly mentioned in the
Wyoming agreement and child support is not within the jurisdiction of Ohio, we
see no reason to find these deficiencies controlling, where both parties, as well as
the trial court, treated it like a shared parenting plan. To the extent that either
party feels prejudiced by this conclusion, we note that on appeal both parties
8
It appears that Wyoming Statutes do not mention a parenting plan. Testerman at ¶ 11 (recognizing that
“there is no mention of a ‘parenting plan’ or ‘parenting time’ ” in the Wyoming Statutes and that the
Wyoming district court’s use of such terms in a Wyoming case was based on Arizona law).
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continue to assert their positions under the assumption that the Wyoming
agreement was a shared parenting plan.
{¶25} Therefore, we hold that under the specific facts at issue, the
Wyoming parenting decree should be treated like a shared parenting decree that
includes a shared parenting plan for the purpose of resolving this case.
E. The Trial Court’s Choice of Procedure to Terminate the Wyoming Shared
Parenting Decree
{¶26} Mary asserts that the trial court erred when it applied R.C.
3109.04(E)(2)(c) instead of R.C. 3109.04(E)(1)(a) to this case. Although she does
not dispute that the Wyoming decree was a shared parenting decree, she suggests
that the instant case required review under the standard for modification rather
than termination of a shared parenting decree. Mary relies on our prior
recognition that in some situations, “a trial court’s action ‘terminating’ a shared
parenting plan that effectively results in ‘a modification of the designation of
residential parent and legal custodian of a child’ may require a two-step analysis.”
Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 14, quoting Fisher,
116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 37.
{¶27} In Drees, we distinguished the Fisher reclassification of the trial
court’s action and pointed out the specific circumstances that caused that unique
situation. We noted that in Fisher, the parties did not move to terminate the
shared parenting plan, but only to change the designation of residential parent and
legal custodian. Id.; see Fisher v. Hasenjager, 3d Dist. No. 10-05-14, 168 Ohio
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App.3d 321, 2006-Ohio-4190, 859 N.E.2d 1022, ¶ 24 (recognizing that both
parents “actually moved to be designated the sole residential parent and legal
custodian of Demetra, not to terminate the shared-parenting plan”). The trial court
attempted to modify the shared parenting by changing the designation of the
residential parent and legal custodian of the child, but leaving “all other orders not
in conflict with the [modifications it made] in full force and effect.” Drees at ¶
14, fn. 4. We recognized that this action did not fit within a termination provision
of R.C. 3109.04(E)(2)(c), because termination requires that the trial court issue a
new decree “ ‘as if no decree for shared parenting had been granted and as if no
request for shared parenting ever had been made .’ ” Id. at ¶ 14, quoting R.C.
3109.04(E)(2)(d). Therefore, the trial court’s action in Fisher had to be
reclassified as an attempt to modify the shared parenting decree and was reviewed
under R.C. 3109.04(E)(1)(a). Id.
{¶28} Like Drees, this case is distinguishable from Fisher. The trial court
herein did terminate the entire shared parenting decree9 and did not preserve any
9
While the trial court’s order states that it is terminating the shared parenting plan, a review of the entire
document makes it apparent that the order effectively terminated the parenting decree. (Compare R. at
170, at 8, ¶ 1 (“The existing shared parenting plan is terminated.”), with id. at 8 (“this court finds that the
previous shared parenting order/plan should be terminated”). As explained in Part (C) above, a “plan” is
statutorily different from a “decree.” Fisher at ¶ 29. Therefore, the trial court’s order should state that the
decree is terminated. There is no division in R.C. 3109.04(E) that provides for termination of a shared
parenting plan without terminating the shared parenting decree. Although we feel the need to clarify the
use of proper statutory terminology, we recognize that it has no practical effect on the action taken by the
trial court, which was termination of the entire parenting decree.
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part of the prior Wyoming agreement.10 The trial court made a new designation
for residential parent and legal custodian for each of the children and issued a new
visitation schedule. Despite the fact that Thomas asked for alternative remedies:
either termination or modification, there is no confusion as to what action the trial
court took. Therefore, the trial court did not err in reviewing the case under the
provision for termination of shared parenting in R.C. 3109.04(E)(2)(c).
{¶29} With this conclusion, we overrule the first assignment of error.
Second and Fourth Assignments of Error—Alleged Errors in Applying R.C.
3109.04(E)(1)(a)
{¶30} In the second and fourth assignments of error, Mary alleges that the
statutory factors for modification under R.C. 3109.04(E)(1)(a) were not satisfied.
But as we determined above, R.C. 3109.04(E)(1)(a) was not applicable to this
case, because the trial court terminated the decree under the standard of R.C.
3109.04(E)(2)(c). Therefore, it was not necessary to find the factors of R.C.
3109.04(E)(1)(a) satisfied in order to resolve the case. For this reason, the second
and fourth assignments of error lack merit and are overruled.
Third Assignment of Error—Termination of Shared Parenting and the New
Parenting Decree
{¶31} In this assignment of error Mary challenges the trial court’s decision
to change the prior parenting arrangement. She claims that the shared parenting
10
The child support issues have been retained by the State of Wyoming and were not even reviewed by the
trial court. This does not mean, however, that any part of the Wyoming decree has been preserved by the
trial court.
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decree should have remained in place and contests the trial court’s decision to
designate Thomas as the residential parent and legal custodian of C.F.
A. The Trial Court’s Decision to Terminate Shared Parenting
{¶32} As explained in our summary of standards in the first assignment of
error, R.C. 3109.04(E)(2)(c) allows the trial court to terminate a shared parenting
decree, and the procedure depends upon the method in which the original shared
parenting plan was approved. In particular, this division states that
- if the original shared parenting plan was filed jointly by both parents and
approved under R.C. 3109.04(D)(1)(a)(i), then the trial court can terminate
the prior final shared parenting decree that includes such a plan “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”;
- if the original shared parenting plan was filed by one parent, or if each
parent filed a separate plan and the trial court approved the plan under R.C.
3109.04(D)(1)(a)(ii) or (iii), then the trial court can terminate the plan only
if it determines “that shared parenting is not in the best interest of the
children.” R.C. 3109.04(E)(2)(c).
{¶33} As can be seen, the statutory language of R.C. 3109.04(E)(2)(c)
places a lot of weight on whether the original shared parenting plan was agreed
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upon by both parents or by one parent only.11 If both parties agreed upon the
shared parenting plan, a mere request by one or both of the parents is a sufficient
basis for the trial court’s termination of a prior final shared parenting decree, even
without the finding that shared parenting is not in the child’s best interest. See id.;
Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 11, fn. 2; see also
Fisher, 2007-Ohio-5589, ¶ 38, 56, 116 Ohio St. 3d 53, 876 N.E.2d 546 (Pfeifer, J .,
dissenting) (“That statute allows a court to terminate a final shared-parenting
decree merely upon the request of one or both of the parents * * * such a request is
sufficient for termination under R.C. 3109.04(E)(2)(c).”); In re J.L.F., 8th Dist.
Cuyahoga No. 97405, 2012-Ohio-1748, ¶ 4 (“R.C.3109.04(E)(2)(c) * * * allows a
court to terminate a final shared-parenting decree merely upon the request of one
or both of the parents.”); Tomaszewski v. Tomaszewski, 8th Dist. Cuyahoga No.
86976, 2006-Ohio-3357, ¶ 10 (“Pursuant to R.C. 3109.04(E)(2)(c), a domestic
relations court may terminate a shared parenting order either upon the motion of
either parent or simply whenever the court determines that shared parenting is no
longer in the best interest of the children.”).
{¶34} Here, both parents agreed to the original shared parenting plan.
Therefore, under the statutory language, the trial court could terminate the shared
11
While the language also talks about the plan being approved under the specified subdivision of R.C.
3109.04(D)(1)(a), we are mindful of the fact that the Wyoming parenting plan did not get approved under
any provision of the Ohio Statute. We are also mindful of the fact that the parties chose to litigate this case
under the statutory provisions that are applicable to a shared parenting decree with a shared parenting plan,
and of the mandate to promote uniformity of laws included in R.C. 3127.51. Therefore, we treat the
Wyoming agreement between the parties as equivalent to a shared parenting plan approved under one of
the subdivisions of R.C. 3109.04(D)(1)(a).
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parenting decree “upon the request of one or both of the parents,” without any
additional findings. R.C. 3109.04(E)(2)(c). One of the parents, Thomas,
requested termination of the decree, and the trial court could thus terminate the
decree upon his request alone. Nothing more was needed under the language of
R.C. 3109.04(E)(2)(c). Therefore, the trial court did not err in terminating the
shared parenting decree upon Thomas’s request in this case.
B. Designating Thomas as the Residential Parent and Legal Custodian of C.F.
{¶35} Having decided that termination of the Wyoming parenting decree
was proper, we evaluate the action that the trial court took upon termination,
which resulted in designating Thomas as the residential parent and legal custodian
of C.F. The statute directs that “[a]fter termination, the court issues a modified
decree allocating parental rights ‘as if no decree for shared parenting had been
granted and as if no request for shared parenting ever had been made.’ ” Drees, 3d
Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 12, quoting Curtis v. Curtis, 2d
Dist. Montgomery No. 25211, 2012-Ohio-4855, ¶ 7, and R.C. 3109.04(E)(2)(d).
In issuing this “modified decree,” the trial court is required to consider “the
standards applicable under divisions (A), (B), and (C) of this section.” R.C.
3109.04(E)(2)(d). These divisions direct the trial court to make decisions that are
in the best interest of the child.
{¶36} The factors that the trial court must consider when determining the
best interest of the child are:
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(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns
as to the allocation of parental rights and responsibilities concerning
the child, the wishes and concerns of the child, as expressed to the
court;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect
the child’s best interest;
(d) The child’s adjustment to the child’s home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an
obligor;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case in
which a child has been adjudicated an abused child or a neglected
child, previously has been determined to be the perpetrator of the
abusive or neglectful act that is the basis of an adjudication; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or
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Case No. 17-15-16
household that is the subject of the current proceeding and caused
physical harm to the victim in the commission of the offense; and
whether there is reason to believe that either parent has acted in a
manner resulting in a child being an abused child or a neglected
child;
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the
other parent’s right to parenting time in accordance with an order of
the court;
(j) Whether either parent has established a residence, or is planning
to establish a residence, outside this state.
R.C. 3109.04(F)(1). Any other “relevant factors” shall be considered as well. Id.;
Drees at ¶ 19.
{¶37} In this case, the trial court reviewed each of the factors of R.C.
3109.04(F)(1) and found that almost all of them were “equally balanced.” (R. at
170, at 8.) It then focused on the wishes of C.F. (factor (b)), finding that “the child
is mature for his age and has expressed good, valid, and sufficient reasons to be
placed with his father.” (Id.) This single factor was determinative of the outcome
of the case. Mary agrees that many factors were equally balanced, but she
specifically points to factors (c), (d), and (j), asserting that they should have
weighed against designating Thomas as the residential parent and legal custodian
of C.F. She also claims that the trial court put too much weight on C.F.’s wishes.
{¶38} The trial court’s determination of what is in the best interest of the
child will not be reversed absent an abuse of discretion. Lowery v. Ridgeway, 3d
Dist. Hancock No. 5-15-20, 2015-Ohio-5051, ¶ 36. This standard requires that the
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trial court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or
unconscionable,” because the trial judge is best equipped to determine and weigh
the credibility of the proffered testimony. Davis v. Flickinger, 77 Ohio St. 3d 415,
416, 418, 674 N.E.2d 1159 (1997); Blakemore v. Blakemore, 5 Ohio St. 3d 217,
219, 450 N.E.2d 1140 (1983). Therefore, under the abuse of discretion standard,
we cannot reverse the trial court simply because we may hold a different opinion
as to the determination of the issues. Huffman v. Hair Surgeon, Inc., 19 Ohio
St.3d 83, 87, 482 N.E.2d 1248 (1985); Conway v. Dravenstott, 3d Dist. Crawford
No. 3-07-05, 2007-Ohio-4933, ¶ 12; In re Sullivan, 11th Dist. No. 2005-G-2641,
167 Ohio App. 3d 458, 462, 2006-Ohio-3206, 855 N.E.2d 554, 557, ¶ 12 (“An
abuse of discretion connotes more than a difference in opinion in the application
of the law to the facts.”).
{¶39} With this standard in mind we review the trial court’s analysis of the
factors challenged by Mary.
Factor (c)—Interaction with Parents, Siblings, and Others
{¶40} When evaluating factor (c), the trial court found that
[C.F.] has family and friends in Ohio and would have family, step-
family, and friends in Washington. The evidence indicates that
[C.F.] has good relations with his stepmother and stepsiblings in
Washington. Although there is an older child of the stepmother who
has had criminal and drug issues, according to the evidence that
person resides outside the home and a significant distance away and
is not part of the regular family involvement.
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Case No. 17-15-16
(R. at 170, at 6-7.) Mary points out that C.F. has a close relationship with his
sister and his move to Washington would separate the siblings. She further asserts
that the fact that Thomas had left his family and moved to the state of Washington
after their divorce, should be used in the best interest analysis.
{¶41} Mary cites Erwin v. Erwin, 3d Dist. Union No. 14-05-45, 2006-Ohio-
2661, in support of her position that these factors should have weighed against
granting Thomas’s request. In Erwin, the trial court denied mother’s request for
shared parenting. In reviewing the evidence, we noted that mother and father
disagreed on the way to discipline the children; mother left the children with father
when she went to live with her boyfriend whom she had only known for one night;
mother introduced the children to her boyfriend the same week that she moved in
with him; and father did not have mother’s address for six months after she had
left. Id. at ¶ 27. Under the abuse of discretion review, we afforded deference to
the trial court’s decision, which denied the mother’s request for shared parenting
of the children under the totality of the circumstances analysis. Id. at ¶ 16-29. We
noted that mother’s “abrupt abandonment of the children had an adverse effect on
the children’s best interest.” Id. at ¶ 27.
{¶42} Similarly, in this case we must afford deference to the trial court’s
analysis of the facts of this case, which are distinguishable from Erwin. Here,
there was no evidence of Thomas abruptly abandoning the children. Thomas did
not move to the state of Washington until after the parties’ divorce became final,
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and he continued his relationship with the children after that time. (Tr. of
Proceedings, March 30, 2015, at 111.) Unlike in Erwin, there was no evidence
here that Thomas’s move to Washington had an adverse effect on C.F.’s best
interest. Instead, the evidence showed that C.F. enjoyed the new opportunities to
which he was exposed in the state of Washington.
{¶43} The record further shows that the trial court did not ignore C.F.’s
relationship with his sister, recognizing that C.F. had “family and friends in Ohio
and would have family, step-family, and friends in Washington.” (R. at 170, at 6.)
The magistrate of the trial court reasoned that although he “does not generally like
to ‘split up’ children,” there were many advantages to C.F. moving to Washington,
including being able to live “with a positive male role model.” (R. at 94, at 11.)
Based on the foregoing, we find no abuse of discretion in the trial court’s analysis
of this factor.
Factor (d)— Adjustment to the Home, School, and Community
{¶44} The trial court recognized that C.F. was “well adjusted to his current
home, school and community in Ohio,” but it also recognized “that when living in
Washington during the summer he has established friends and relationships.” (R.
at 170, at 7.) The trial court was conscious of the fact that “there will certainly be
an adjustment necessary for him moving into a new school,” but it found C.F. to
be “well situated to handle that.” (Id.) Mary does not dispute these findings, but
she asks us to give more weight to the positive influence of the Ohio activities
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Case No. 17-15-16
upon C.F. In our review under the abuse of discretion standard, we cannot do that.
See Bechtol v. Bechtol, 49 Ohio St. 3d 21, 550 N.E.2d 178 (1990), syllabus
(holding that “[w]here an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as being
against the weight of the evidence by a reviewing court).
Factor (j)—Move Out-of-State
{¶45} As it pertains to factor (j), the trial court correctly noted that both
parents moved from Wyoming, where the original parenting decree was entered.
The trial court placed no significance on that factor. (R. at 170, at 16.) Mary
claims that because Thomas moved first, it is against the best interest of C.F. to
allow him to live with Thomas. This argument is repetitive of the claim made
above, which we analyzed under factor (c). There is no evidence that the trial
court abused its discretion in analyzing this factor.
Factor (b)—C.F.’s Wishes
{¶46} Lastly, with factor (b), Mary correctly points out that the child’s
wishes should be considered as one of many factors in the best interest
determination. See In Matter of Reid, 3d Dist. Paulding No. 11-98-3, 1998 WL
409115, *2 (July 10, 1998) (“children’s wishes are not controlling upon the court,
but are only one among several factors a court considers when determining what is
in the children’s best interests”); Burks v. Burks, 3d Dist. Wyandot No. 16-96-2,
1996 WL 518111, *2 (Sept. 12, 1996) (“the interview of the children is not
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Case No. 17-15-16
conclusive but is only one of the several relevant factors to be considered under
R.C. 3109.04(F)(1)”). Here, the trial court did consider all factors and correctly
determined that they were equally balanced. Therefore, the trial court had to make
its allocation of parental rights and responsibilities based on the one factor that
was not in balance.12
{¶47} We recognize that “a child’s wishes are often transitory” and “[n]o
court can permit a child constantly to effect change in his or her residential parent
based on a simple change of mind in that regard.” Butland v. Butland, 10th Dist.
Franklin No. 95APF09-1151, 1996 WL 362038, *4 (June 27, 1996). Instead, “a
trial court should evaluate a child’s wishes and concerns regarding the allocation
of parental rights and responsibilities from the standpoint of their depth, sincerity,
and the extent they reflect changed circumstances within the parent-child
relationship or relationship between the parties.” Id.
{¶48} Here, the trial court noted that C.F.’s wishes and desires expressed
during the in-camera interview appeared to be “well considered.” (R. at 170, at 6.)
The magistrate and both parents agreed that C.F. was “bright, intelligent, articulate
and mature for his age.” (Id.) C.F.’s desire to live with Thomas was not “a
whim,” and it was not motivated by any disagreement with mom. (Id.) Rather,
C.F. had been considering and discussing the possibility of living with his father
12
This conclusion does not contradict our prior holding that “[a] child’s wishes regarding custody standing
alone is not enough to constitute a change in circumstances.” McLaughlin v. McLaughlin-Breznenick, 3d
Dist. Logan No. 8-06-06, 2007-Ohio-1087, ¶ 28. The threshold for a change in circumstances is different
than a finding of what is in the best interest of the child.
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Case No. 17-15-16
for at least a couple of years. (Id.) His wishes were motivated by his belief that he
would have a better violin opportunity, an opportunity to participate in a creative
theater camp, and more educational opportunities. (R. at 94, at 9.) He also
indicated that he needed a “guy” in the house. (Id.) Based on these findings,
which are supported by the record, we find no abuse of discretion in the trial
court’s finding that C.F.’s wishes align with his best interest, where both parents
were found to be “suitable parents” and the “primary objection” that Mary had to
the placement of C.F. with Thomas was “her desire to keep the family together.”
(Id. at 5-6.)
{¶49} The standard of review requires us to give deference to the trial
court’s resolution of the issues and to the “determination made between competing
considerations.” Huffman, 19 Ohio St. 3d at 87, 482 N.E.2d 1248; Conway, 3d
Dist. Crawford No. 3-07-05, 2007-Ohio-4933, at ¶ 12. Under this standard we
hold that the trial court did not abuse its discretion in analyzing the factors of R.C.
3109.05(F)(1) and determining that C.F.’s move to Washington to live with his
father would be in his best interest. Accordingly, the trial court did not err in
designating Thomas as the residential parent and legal custodian of C.F. after
terminating the prior shared parenting decree. With this conclusion, we overrule
the third assignment of error.
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Fifth Assignment of Error—Findings of Fact and Conclusions of Law
{¶50} Mary repeats her complaint made in the trial court, alleging that the
magistrate’s decision was not specific enough to support the finding in favor of a
change of custody. She thus asserts that the trial court erred in denying her request
for findings of fact and conclusions of law in accordance with Civ.R.
53(D)(3)(a)(ii). This rule states that
[s]ubject to the terms of the relevant reference, a magistrate’s
decision may be general unless findings of fact and conclusions of
law are timely requested by a party or otherwise required by law. A
request for findings of fact and conclusions of law shall be made
before the entry of a magistrate’s decision or within seven days after
the filing of a magistrate’s decision. If a request for findings of fact
and conclusions of law is timely made, the magistrate may require
any or all of the parties to submit proposed findings of fact and
conclusions of law.
Civ. R. 53.
{¶51} Mary’s request filed under this rule was properly denied because the
magistrate’s decision in this case was not a “general” decision under the rule.
Indeed, the thirteen-page decision consisted of fourteen enumerated paragraphs.
Each of these paragraphs dealt with different findings of fact (see, e.g., paragraphs
1, 5, 6, 7, 8, 9, 10, 11), legal standards (see, e.g., paragraphs 2, 3, 4), and
conclusions of law (see, e.g., paragraphs 10, 12). “Findings of fact and
conclusions of law have a twofold purpose: they explain the factual and legal
rationale for the trial court’s decision and, as a consequence, help make
meaningful appellate review possible.” Brammer v. Brammer, 3d Dist. Marion
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Case No. 17-15-16
No. 9-12-57, 2013-Ohio-2843, ¶ 42. Both objectives are satisfied by the
magistrate’s decision.
{¶52} While Mary alleged that the magistrate’s decision did not sufficiently
explain the magistrate’s findings, we have previously held:
It is not realistic to expect a trial court to include a written analysis
of each and every factual bit of information that was presented
during a three-day hearing. Merely because the trial court chose to
summarize its findings, and only list some of the pertinent facts that
were instrumental in its decision, does not mean that it did not
consider and weigh all of the evidence before it.
Brammer at ¶ 43.
{¶53} Based on the foregoing, we hold that the trial court did not err in
denying Mary’s request for findings of fact and conclusions of law. We thus
overrule the fifth assignment of error.
V. Conclusion
{¶54} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Shelby County, Ohio is
therefore affirmed.
Judgment Affirmed
PRESTON, J., concurs
ROGERS, J., concurs in Judgment Only.
/hls
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