Marimon v. Marimon , 2021 Ohio 3437 ( 2021 )

[Cite as Marimon v. Marimon, 2021-Ohio-3437.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
BRIAN MARIMON, : APPEAL NO. C-210137
TRIAL NO. DR-1400503
Plaintiff-Appellant, :
vs. :
O P I N I O N.
AMANDA MARIMON, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 29, 2021
Dever Hoberg, LLC, and Scott A. Hoberg, for Plaintiff-Appellant,
Tibbs Law Firm and Jordan A. D’Addario, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Plaintiff-appellant Brian Marimon (“Father”) appeals a decision of the
trial court designating defendant-appellee Amanda Marimon (“Mother”) as the
residential parent for purposes of their children’s schooling in the parties’ shared-
parenting plan. Because we find no abuse of discretion with regard to the trial
court’s decision, we affirm.
Background
{¶2} Mother and Father entered into a shared-parenting plan in 2014 with
respect to their three children, born in 2008, 2010, and 2012. At that time, both
Father and Mother were living in the Northwest Local School District. Under the
plan, the parties agreed that Father would be designated as the residential parent for
school purposes, and that the children would attend Monfort Heights Elementary
through the fifth grade.
{¶3} In August 2018, Mother moved to Monroe, Ohio, in the Lakota Local
School District. The following year, in September 2019, Father filed a motion to
terminate shared parenting, and a motion for change of parental rights and
responsibilities. In response, Mother filed a motion to modify the terms of the
shared-parenting plan to designate her as the residential parent for school purposes.
Father also filed a motion for the trial court to conduct an in camera interview with
respect to their eldest child.
{¶4} In late 2020 and early 2021, the matter proceeded to trial. The
custody investigator employed by the court testified that she had interviewed Father,
Mother, the children, and Mother’s new husband. The custody investigator found
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OHIO FIRST DISTRICT COURT OF APPEALS
both parents provided a good environment for the children. Nevertheless, the
custody investigator received multiple reports that the children spent a large amount
of time with paternal grandparents during Father’s parenting time, even though
Father was not employed at the time. Also, Mother’s choice to move 35 minutes
from Father created confusion for the children and placed them in the middle of
their parents’ conflict regarding schooling. The custody investigator ultimately
recommended that the children stay in their current school system, and that the
children spend the night at their Father’s home during the school week for more
structure.
{¶5} After the testimony from the custody investigator, Father definitively
dismissed his request for termination of shared parenting and legal custody, and
instead, Father requested that the trial court adopt the recommendation of the
custody investigator. According to Father, the children were too tired at school on
the mornings after they had spent the night at Mother’s home. With regard to where
the children would attend school, Father testified that he wanted his younger
children to stay in the Northwest Local School District, but he did not want his eldest
child, who was in seventh grade at the time, to attend the local high school, Colerain
High School. Father also did not want the children to attend school in the Lakota
school district. Although Father was unemployed at the time of trial, he testified that
he had been looking for a job that would allow him to be present with his children.
{¶6} Unlike the custody investigator and Father, Mother felt that it would
be in the best interest of the children to continue roughly the same parenting-time
schedule. Mother also requested that the children attend school in her district of
residence, Lakota school district. Mother felt that the Lakota school system would
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provide a good education for her children, and that the children would have friends
from church. Mother also had recently become a paramedic, which would allow her
to have the flexibility to get the children off the bus and help them with their
homework.
{¶7} At the conclusion of trial, the trial court granted Mother’s motion to
modify the shared-parenting plan to designate Mother as the residential parent for
school purposes. The trial court made the decision based upon the custody
investigator’s concern over the children’s stability, both parents’ wishes that the
children not attend Colerain High School, Father’s uncertain work schedule, his
reliance on paternal grandmother for childcare, and Mother’s new job that allows her
more time with the children.
{¶8} Father appeals.
The In Camera Interview Requirement in Custody Disputes
{¶9} In his first assignment of error, Father argues that the trial court erred
by failing to conduct an in camera interview of the parties’ eldest child prior to
designating Mother as the residential parent for school purposes.
{¶10} Father relies on R.C. 3109.04(B)(1), which requires the trial court to
conduct an in camera interview of a child, if requested by either party, “[w]hen
making the allocation of the parental rights and responsibilities for the care of the
children under this section in an original proceeding or in any proceeding for
modification of a prior order of the court making the allocation[.]”
{¶11} According to Mother, the modification of the terms of a shared-
parenting plan is not an allocation of parental rights and responsibilities. Therefore,
R.C. 3109.04(B) does not apply. Mother argues that the underlying proceeding is
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OHIO FIRST DISTRICT COURT OF APPEALS
governed by R.C. 3109.04(E)(2)(b), which contains no requirement for an in camera
interview of the minor child as requested by Father.
{¶12} R.C. 3109.04(E)(2)(b) provides in relevant part that “[t]he 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 the request of one or
both of the parents under the decree.” Modifications to the terms of a shared-
parenting plan under R.C. 3109.04(E)(2)(b) can be made at any time, so long as the
modification is in the best interest of the children. Id.{¶13} The distinction between a “plan” and a “decree” as those terms are
used in R.C. 3109.04 was explained by the Ohio Supreme Court in Fisher v.
Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546:
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.
Id. at ¶ 29-30.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Following Fisher, this court held in Fritsch v. Fritsch, 1st Dist.
Hamilton No. C-140163, 2014-Ohio-5357, ¶ 21, that R.C. 3109.04(E)(2)(b) governs
the modification of the residential parent for school purposes in a shared-parenting
plan. See Ralston v. Ralston, 3d Dist. Marion No. 9-08-30, 2009-Ohio-679, ¶ 17
(holding that the trial court was required to apply R.C. 3109.04(E)(2)(b) when
modifying the designated residential parent for school purposes); In re T.G.O., 12th
Dist. Madison No. CA2016-02-009, 2017-Ohio-151, ¶ 9.
{¶15} Here, because the decision of the trial court only modifies the
designation of the residential parent for school purposes, it does not involve a
modification of an “order” or “decree” of the allocation of parental rights. See R.C.
3109.04(K)(7) (the designation of one parent as residential parent for school
placement purposes does not affect the designation of each parent in a shared-
parenting order as the “residential parent,” the “residential parent and legal
custodian,” or the “custodial parent” of the child). By contrast, the in camera
interview requirement in R.C. 3109.04(B)(1) specifically refers to proceedings
“making the allocation of the parental rights and responsibilities for the care of the
children under this section in an original proceeding or in any proceeding for
modification of a prior order of the court making the allocation[.]”
{¶16} In this case, the trial court’s decision granting Mother’s motion to
modify the terms of the shared-parenting plan to change the residential parent for
school purposes is governed by R.C. 3109.04(E)(2)(b), and the in camera interview
requirement in R.C. 3109.04(B)(1) does not apply. The trial court was not required
to hold an in camera interview of the parties’ eldest child prior to modifying the
terms of the shared-parenting plan. We overrule Father’s first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Changing the Residential Parent for School Purposes
{¶17} In his second assignment of error, Father argues that the trial court
erred in designating Mother as the residential parent for school purposes.
{¶18} Father argues that the trial court erred by failing to properly apply R.C.
3109.04(E)(1)(a). R.C. 3109.04(E)(1)(a) provides in relevant part that “[t]he court
shall not modify a prior decree allocating parental rights and responsibilities for the
care of children” unless a change of circumstances has occurred, and “the
modification is necessary to serve the best interest of the child.” According to Father,
Mother created the change of circumstances by moving away from the Northwest
Local School District to Butler County.
{¶19} R.C. 3109.04(E)(1)(a) does not apply in this case. As stated above, the
court in Fisher recognized the distinction in R.C. 3109.04 between the modification
of a decree and modification of terms of the shared-parenting plan. The Ohio
Supreme Court recently reaffirmed this distinction: “R.C. 3109.04(E)(1)(a) allows for
modification of a shared-parenting decree. R.C. 3109.04(E)(2)(a) and (b) allow for
the modification of the terms of a shared-parenting plan.” Bruns v. Green, 163 Ohio
St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396, ¶ 11.
{¶20} As this court held in Fritsch, a change in designation of a residential
parent for school purposes in a shared-parenting plan constitutes a modification of
the terms of the plan and is governed by R.C. 3109.04(E)(2)(b). Fritsch, 1st Dist.
Hamilton No. C-140163, 2014-Ohio-5357, at ¶ 21. Because R.C. 3109.04(E)(1)(a)
does not apply, the trial court was not required to find a change of circumstances
prior to modifying a term of the shared-parenting plan.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Finally, Father argues that the trial court erred in determining that the
best interests of the children would be served by designating Mother as the
residential parent for school purposes. Father argues that the trial court erred in
applying the best-interest factors in R.C. 3109.04(F)(1). R.C. 3109.04(F)(1) provides
a nonexhaustive list of eight factors a trial court must consider when determining the
best interests of a child for purposes of “an original decree allocating parental rights
and responsibilities for the care of children or a modification of a decree allocating
those rights and responsibilities * * *.”
{¶22} Father’s weight-of-the-evidence argument assumes that the best-
interest factors in R.C. 3109.04(F)(1) govern the analysis in R.C. 3109.04(E)(2)(b),
which allows the trial court to modify the terms of the shared-parenting plan so long
as “the modification is in the best interest of the children.” However, nothing in R.C.
3109.04(E)(2)(b) explicitly requires the trial court to examine the factors in R.C.
3109.04(F)(1), and R.C. 3109.04(F)(1) by its terms applies to “an original decree
allocating parental rights and responsibilities for the care of children or a
modification of a decree allocating those rights and responsibilities”—not
modifications of terms of the shared-parenting plan. See Fisher, 116 Ohio St.3d 53,
2007-Ohio-5589, 876 N.E.2d 546, at ¶ 29 (determining that the custody statute
distinguishes between “plan” and “decree”). Therefore, although the trial court was
required to consider the children’s best interest in modifying the terms of the shared-
parenting plan with regard to school placement, the trial court was not required to
specifically consider the factors enumerated in R.C. 3109.04(F)(1).
{¶23} As a general matter, modifications to a shared-parenting plan are
reviewed for an abuse of discretion. Hall v. Hall, 4th Dist. Adams No. 16CA1030,
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OHIO FIRST DISTRICT COURT OF APPEALS
2017-Ohio-8968, ¶ 19. Here, the trial court decided that the children’s best interests
would be served by attending the Lakota school district in Mother’s neighborhood.
The record supports that decision.
{¶24} Father and Mother clearly could not agree on where to send their
children to school. Both parents testified that they did not want their eldest child to
attend Colerain High School; however, a continuation of Father as residential parent
for purposes of school placement meant that their eldest child would attend Colerain
in less than two years, unless the parents could agree otherwise. The eldest child
relayed to the custody investigator that he had heard Colerain was not “the greatest”
and that his parents would have to “figure out” where he would attend high school.
One of their younger children struggled in school and had an individualized
education plan, which would likely require the child to attend a public high school.
{¶25} In addition, Mother started a new job as a paramedic, which would
allow her more time to be involved with her children’s schooling. The record shows
that paternal grandmother provided a great deal of the childcare during Father’s
parenting time. Father was unemployed at the time of trial, and so his work schedule
was unknown.
{¶26} Ultimately, the trial court had a difficult decision to make for these
children, and this decision was not an abuse of discretion. We overrule Father’s
second assignment of error.
Conclusion
{¶27} The trial court did not abuse its discretion in modifying the parties’
shared-parenting plan to designate Mother as the residential parent for school
purposes. We affirm the judgment of the trial court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
BERGERON, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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