In re J.M. ( 2022 )

[Cite as In re J.M., 2022-Ohio-2400.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.M. : APPEAL NO. C-210514
TRIAL NO. F15-000720X
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: O P I N I O N.
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Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2022
Ginocchio Law, LLC, and James S. Ginocchio, Jr., for Plaintiff-Appellee,
Constance Potter, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental-custody case, we consider whether the trial court
properly designated plaintiff-appellee (“Father”) the residential parent of J.M. for
purposes of school registration. Defendant-appellant (“Mother”) challenges the
modification to the shared-parenting plan as an abuse of discretion, arguing the court
arbitrarily assumed that prior housing instability rendered future school changes
inevitable. Because credible evidence exists in the record from which the trial court
could reach its decision, we affirm the juvenile court’s judgment.
I.
{¶2} In January 2018, the parents of J.M. entered into a shared-parenting
plan that granted equal parenting time on a week on, week off schedule. The plan
designated both parents as residential parents for school purposes and provided that
when J.M. reached school age, he would attend the same school as Mother’s older
biological daughter (J.M.’s half-sister). At the time the court blessed the plan, J.M.’s
half-sister attended school in the Northwest School District, where Mother lived with
her fiancé. After entering into the shared-parenting plan, however, Mother’s car broke
down and her transportation difficulties created several challenges. In order to be
close enough to walk to work, Mother and J.M. moved in with her mother (J.M.’s
maternal grandmother), where they had previously lived before residing with Mother’s
fiancé. Because his maternal grandmother resided in a different school district, J.M.
began attending a Head Start preschool program that fall at an elementary school in
that district.
{¶3} On Christmas Eve of 2018, Mother’s paternal grandmother passed
away in Cedar Lake, Indiana. Mother withdrew J.M. from the Head Start program
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OHIO FIRST DISTRICT COURT OF APPEALS
and traveled to Cedar Lake to help settle her grandmother’s estate. During the reading
of the will, Mother learned that grandmother had left her some money to complete a
phlebotomy certification in the Cedar Lake area. Mother asked Father if she could
temporarily relocate to Cedar Lake to complete the six-week course. Father balked at
that request and filed a petition for custody, alleging that Mother moved J.M. to Cedar
Lake without his consent. Mother returned to Ohio within a few weeks, and
subsequently (in early 2019), Mother and J.M. moved back in with her fiancé at the
residence located in the Northwest School District.
{¶4} As required by the shared-parenting plan, the trial court ordered the
parties to mediation on Father’s custody petition. The parties agreed to keep the
shared-parenting plan in place with one change, deciding that J.M. should attend
school in the Southwest School District instead of the Northwest district. But enrolling
J.M. in the Southwest district proved problematic because neither parent resided
there. As a result of this discovery, Father moved to set aside this agreed modification
to the shared-parenting plan. The trial court approved Father’s motion to set aside
and ordered that the original shared-parenting plan of January 2018 remain in effect.
As a result, J.M. attended kindergarten at Colerain Elementary School in the
Northwest School District, finishing virtually due to the Covid-19 pandemic.
{¶5} Remaining frustrated by the situation, Father next filed to terminate the
shared-parenting plan in its entirety and designate himself as J.M.’s sole residential
parent. His motion featured Mother’s alleged pattern of moving residences numerous
times, and it claimed that she attempted to relocate J.M. to Indiana and that her
behavior exposed J.M. to chaos and uncertainty. Approximately one year later, with
Father’s petition still lingering in the courts, Mother relocated again to a residence in
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OHIO FIRST DISTRICT COURT OF APPEALS
the Southwest School District. Mother testified that she moved there because
Southwest was still the school district that both parents preferred for J.M. In light of
this move, J.M. attended first-grade at Southwest Local.
{¶6} The parties proved unable to reach a compromise in mediation this time
around and Father’s custody petition proceeded to trial. The magistrate ultimately
denied Father’s request to terminate the shared-parenting plan and designate Father
as the residential parent but found that it was in the best interest of J.M. to modify the
plan so that Father’s residence would be used for school registration purposes. The
trial court adopted the magistrate’s decision over Mother’s objections. Mother now
appeals, claiming in her sole assignment of error that the trial court abused its
discretion by designating Father as the residential parent for purposes of school
registration (Father does not cross-appeal the denial of the other relief he sought).
II.
{¶7} On appeal, Mother contends that the trial court based its decision on an
arbitrary assumption that Mother would move again in the future and subject J.M. to
additional school district changes. R.C. 3109.04(E) details “the procedures to be
followed in the event that either a parent or the trial court finds it necessary to make
changes to a shared-parenting decree or plan.” Bruns v. Green, 163 Ohio St.3d 43,
2020-Ohio-4787, 168 N.E.3d 396, ¶ 9. The trial court here declined to terminate the
shared-parenting plan as requested by Father but proceeded sua sponte under R.C.
3109.04(E)(2)(b), which “applies when the domestic relations court modifies the
designation of a residential parent for school purposes, but otherwise maintains both
parents as residential parents with the same parental rights and responsibilities.”
Fritsch v. Fritsch, 1st Dist. Hamilton No. C-140163, 2014-Ohio-5357, ¶ 21. We review
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OHIO FIRST DISTRICT COURT OF APPEALS
a trial court’s modification under R.C. 3109.04(E)(2)(b) for an abuse of discretion. Id.
at ¶ 24.
{¶8} A trial court may modify the terms of a shared-parenting plan on its own
initiative under R.C. 3109.04(E)(2)(b) when the modification furthers the best interest
of the child. Bruns at ¶ 11. The trial court determined that it was in J.M.’s best interest
to attend school in Father’s district because “Mother’s repeated moves to new
residences [are] problematic. * * * [J.M.] would benefit from having a stable school
experience.” Mother criticizes this conclusion as based on nothing more than a hunch
that she will move again. While conflicting testimony exists as to the number of moves
and the stability of Mother’s housing, we cannot say that the trial court’s decision was
so arbitrary, unreasonable, or unconscionable as to constitute an abuse of discretion.
See Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983).
{¶9} We first reiterate that the trial court declined to terminate the shared-
parenting plan, as requested by Father, after thoroughly analyzing the best-interest
factors included in R.C. 3109.04(F)(1) and (2). The court conducted an in-camera
interview with J.M. and considered testimony from Father, Mother, the court-
appointed guardian ad litem, J.M.’s paternal grandmother, and Mother’s live-in
fiancé. After doing so, the court explained that J.M. is well adjusted to both homes
and that he desired to keep the current arrangement allowing him equal time with
each parent. There was no evidence that either parent neglected or abused J.M.,
denied the other party parenting time, or failed to encourage the sharing of love and
affection between J.M. and the other parent. And while communication between
Mother and Father could become strained at times, as in many co-parenting
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OHIO FIRST DISTRICT COURT OF APPEALS
situations, the court commended them for working collaboratively to make decisions
for J.M.’s benefit even when they disagreed.
{¶10} Instead, the trial court modified section 2 of the parties’ shared-
parenting plan to reflect that “Father’s residence shall be used for registration
purposes.” The court modified only this one term of the shared-parenting plan, which
it was authorized to do so long as it furthered J.M.’s best interest and did not change
the allocation of any parental rights or responsibilities. See Dennis v. Dennis, 1st Dist.
Hamilton No. C-210370, 2022-Ohio-1216, ¶ 14. “ ‘Because the trial judge is in the best
position to evaluate the child’s best interests, a reviewing court should accord great
deference to the decision of the trial judge.’ ” Davis v. Flickinger, 77 Ohio St.3d 415,
420, 674 N.E.2d 1159 (1997), quoting Pater v. Pater, 63 Ohio St.3d 393, 403, 588
N.E.2d 794 (1992) (Resnick, J., concurring in part and dissenting in part). Thus, we
can only find an abuse of discretion “if competent, credible evidence does not support
the juvenile court’s decision regarding [J.M.]’s best interest or if the court applies the
wrong legal standard.” In re E.R.M., 1st Dist. Hamilton No. C-190391, 2020-Ohio-
2806, ¶ 12.
{¶11} On this record, we are unable to make such a determination. The
shared-parenting plan originally tied J.M.’s schooling to his half-sister, who as of her
third-grade year had not once attended the same school for consecutive years. Mother
testified that she moved back and forth between her fiancé’s house and her mother’s
house a number of times, before moving again to her current residence. The trial court
recognized that two of Mother’s recent moves were made to resolve concerns raised by
Father and the guardian ad litem, and that her current housing situation is much
improved. Nonetheless, it was neither unreasonable nor improper for the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
to consider these past experiences in its decision. “In fact, courts have recognized that
a parent’s past history is one of the best predictors of future behavior.” In re W., 4th
Dist. Athens No. 05CA4, 2005-Ohio-2977, ¶ 28. Given Mother’s history of moving and
enrolling her older child at different schools, credible evidence existed from which the
trial court could conclude that J.M.’s educational interests were best served through
enrollment in Father’s school district. Accordingly, the trial court did not abuse its
discretion.
* * *
{¶12} In light of the foregoing analysis, we overrule the assignment of error
and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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