Massong v. Tyner ( 2022 )

[Cite as Massong v. Tyner, 2022-Ohio-2933.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
BRYAN MASSONG, : APPEAL NO. C-210549
TRIAL NO. F16-2479z
Plaintiff-Appellant, :
: O P I N I O N.
VS.
:
ASHLEE TYNER, :
Defendant-Appellee. :
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 24, 2022
Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Plaintiff-
Appellant,
Arnold Law Firm, LLC, and Britt Born, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental-custody case, plaintiff-appellant Bryan Massong
petitioned the juvenile court for sole custody of his son or, in the alternative, increased
parenting time. Defendant-appellee Ashlee Tyner requested that the juvenile court
eliminate Mr. Massong’s parenting time entirely or require supervised visits. The
court met the parties somewhere in the middle, selecting Ms. Tyner as the custodial
parent and granting Mr. Massong visitation for six hours every other week with the
opportunity to earn more parenting time if he completes counseling sessions. On
appeal, Mr. Massong raises five assignments of error, arguing that the juvenile court
abused its discretion in various ways when curtailing his parenting time. Finding no
abuse of discretion, we accordingly overrule his assignments of error and affirm the
judgment of the court below.
I.
{¶2} Mr. Massong and Ms. Tyner are the biological parents of E.M., born in
June 2014. Their relationship was acrimonious to say the least, marred by allegations
of domestic violence and abuse by both parties. The turbulent relationship ended in
the summer of 2015, when E.M. was approximately one year old. Shortly after, Ms.
Tyner began dating James Dwolf, her now husband and E.M.’s stepfather.
{¶3} The parties attempted to handle custody and visitation between
themselves initially but that proved untenable. Mr. Massong filed a petition for
custody or shared parenting in November 2016. An agreed parenting plan was entered
in August 2017, granting Ms. Tyner legal custody and awarding Mr. Massong visitation
every Tuesday and every other weekend. Unfortunately, having a formal shared-
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OHIO FIRST DISTRICT COURT OF APPEALS
parenting plan and visitation schedule in place failed to alleviate the hostility between
the parties.
{¶4} Over the next two years, both parents violated provisions of the agreed
parenting plan. Ms. Tyner neglected to give Mr. Massong access to E.M.’s school
records, consult with Mr. Massong before signing E.M. up for extracurricular
activities, or inform Mr. Massong or the court of her relocation within Hamilton
County. Mr. Massong, for his part, persisted in communicating with Ms. Tyner outside
of the approved messaging system put in place by the court. Many of the messages
sent by Mr. Massong were threatening, insulting, and disparaging to Ms. Tyner and
Mr. Dwolf.
{¶5} Eventually, in 2019, Mr. Massong again petitioned the court for sole
custody or additional parenting time. Through mediation, the parents agreed to follow
a temporary parenting plan until the juvenile court ruled on Mr. Massong’s petition.
But the parties could not await that determination, as Ms. Tyner filed a motion to
modify the temporary parenting agreement and both parties filed motions for
contempt, each alleging violations of the temporary parenting plan.
{¶6} Due to the Covid-19 pandemic and other scheduling issues, the juvenile
court did not hold the combined custody and parenting-time trial until September and
October 2020. In light of evidence and testimony given at the hearings that E.M. was
tardy to school every morning for two months when Mr. Massong took him, and that
issues arose surrounding the exchanges of E.M., the juvenile court revised the interim
order so that Mr. Massong did not have overnight visitations through the week and
ordered that all exchanges take place at the Cincinnati Police Department.
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{¶7} A few months later, Ms. Tyner requested an ex parte emergency order
asking the court to suspend Mr. Massong’s visitation entirely or to order that the visits
be supervised, averring that she believed E.M. to be in danger of immediate physical
harm or threat of harm. According to her, Mr. Massong’s behavior deteriorated after
the court suspended his overnight visits. E.M. allegedly returned from Mr. Massong’s
home in tears, claiming that Mr. Massong said he “can’t take this anymore” and “won’t
see him again” because he “is going far, far, away forever.” Ms. Tyner also detailed in
her affidavit that Mr. Massong persisted in texting her directly, that he told E.M. that
Ms. Tyner stabbed him with a knife, and that he refused to exchange E.M. at the police
department as ordered by the court. Mr. Massong’s parenting time with E.M. was
suspended entirely once Ms. Tyner filed the emergency motion.
{¶8} At the hearing on the emergency order, Ms. Tyner offered to withdraw
the motion and allow Mr. Massong’s visitation to be reinstated if he agreed to abide by
the provisions of the court-approved temporary parenting plan (which the parties
were still operating under because no final custody decision had yet been entered).
Mr. Massong declined, claiming he wanted to postpone the hearing and consult a
lawyer “because of the veracity of the case substantiating facts.” At the continued
hearing on the emergency motion some six weeks later, Mr. Massong fixated on
proving that Ms. Tyner did indeed stab him with a knife during the argument over five
years ago, despite the court’s continuous admonishment that the only evidence it
would hear pertained to the emergency motion. The court found he violated the terms
of the parenting plan and noted his erratic behavior in court proceedings, concluding
by ordering that Mr. Massong’s visitation remain suspended until the court issued a
decision in the custody case.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The juvenile court entered its final decision on Mr. Massong’s custody
petition and Ms. Tyner’s request to modify parenting time in September 2021. Mr.
Massong now timely appeals, raising five assignments of error.
II.
A.
{¶10} In his first assignment of error, Mr. Massong argues that the juvenile
court erred by not finding that a change of circumstances occurred since the previous
order of custody. R.C. 3109.04(E) sets forth the procedures to be followed if 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. Relevant here is R.C. 3109.04(E)(1)(a), which provides that before modifying a
prior decree allocating parental rights and responsibilities, the trial court must find
that a change has occurred in the circumstances of the child or the child’s residential
parent. Under R.C. 3109.04(E)(1)(a),the change in circumstances must be “based on
facts that have arisen since the prior decree or that were unknown to the court at the
time of the prior decree.” The changed conditions must also “be substantiated,
continuing, and have a materially adverse effect upon the child.” In re E.R., 1st Dist.
Hamilton No. C-180615, 2019-Ohio-4491, ¶ 6.
{¶11} Mr. Massong contends that Ms. Tyner’s relocation, E.M.’s age, and the
introduction of a stepfather into the family dynamic qualify as changed circumstances.
While Mr. Massong concedes that none of those events on their own would constitute
a change in circumstances under the statute, he believes that, when taken together,
courts recognize the totality of similar happenings to represent a change in
circumstances warranting a modification to the custody order. This argument is
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OHIO FIRST DISTRICT COURT OF APPEALS
correct on the surface so far as it goes. “A change of circumstances can be upheld based
on a collection of findings as to how the lives of the residential parent and the child
have changed since the prior decree.” Gibson v. Gibson, 7th Dist. Columbiana No. 17
CO 0034, 2018-Ohio-2772, ¶ 42.
{¶12} But the argument breaks down under even casual scrutiny of the record
evidence at hand. The trial court disagreed with Mr. Massong, finding that even when
taken together, E.M.’s age, mother’s relocation, and the hostility between the parents
was insufficient to find a change of circumstances occurred. “We review a trial court’s
change-in-circumstances determination for an abuse of discretion because ‘a trial
judge, as the trier of fact, must be given wide latitude to consider all issues which
support such a change.’ ” Souders v. Souders, 1st Dist. Hamilton No. C-210469, 2022-
Ohio-1953, ¶ 8, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 416, 674 N.E.2d 1159(1997). Before we will reverse, Mr. Massong must show that the trial court
“exercise[ed] its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.” See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, 187 N.E.3d 463, ¶ 35. On this record, we are not persuaded.
{¶13} To begin with, regarding E.M.’s age, a child’s maturation from infancy
to school age is not sufficient on its own to constitute a changed circumstance. See In
re E.R., 1st Dist. Hamilton No. C-180615, 2019-Ohio-4491, at ¶ 10. In his merit brief,
Mr. Massong relied on a case in which a trial court allocated parental rights shortly
after the birth of the child, and a later trial court failed to consider whether the child’s
“maturation over the past fifteen years, combined with her expressed desire to live
with [father] and any other circumstances in this case, constitute a change in
circumstances sufficient to warrant inquiry into the other requirements of R.C. §
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OHIO FIRST DISTRICT COURT OF APPEALS
3109.04(E)(1)(a).” In re Custody of M.B., 2d Dist. Champaign No. 2006-CA-6, 2006-
Ohio-3756, ¶ 20.
{¶14} But Mr. Massong filed his motion less than two years after the agreed
order establishing parental rights, a significant factual distinction. He points to no
case law suggesting that such a nominal progression in age constitutes a change in
circumstances, and there is no indication in the record that E.M. expressed a desire to
live with Mr. Massong. Thus, we will only consider E.M.’s advancement in age as part
of a collective finding.
{¶15} Mr. Massong further alleges in this assignment of error that the
introduction of a stepfather fostered a hostile relationship between the parties. The
record squarely contradicts the notion that Ms. Tyner’s relationship with Mr. Dwolf is
a new fact that has “arisen since the prior decree.” The marriage itself may have been
a recent development, but Ms. Tyner and Mr. Dwolf both testified that they dated for
approximately five years before getting married in 2020.
{¶16} Nor can Mr. Massong seriously allege that stepfather is the source of
increased conflict between the parents. Mr. Massong cites as the “prime example” an
incident where stepfather would not allow him to carry a sleeping E.M. into the
house—a prudent decision considering the threatening messages lobbed at Mr. Dwolf
over the years. Although Mr. Massong seems to take issue with dropping E.M. off with
anyone other than Ms. Tyner, we see no requirement in the parenting decree that Ms.
Tyner herself be available during exchanges.
{¶17} Turning to Ms. Tyner’s relocation, we appreciate Mr. Massong’s
frustration on this point. Ms. Tyner admitted to moving without notifying the court
as required by the agreed entry and neglected to inform Mr. Massong of the move until
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OHIO FIRST DISTRICT COURT OF APPEALS
after she closed on the sale of the new property. The move increased the time it takes
Mr. Massong to pick up and drop off E.M., but it hardly constitutes the type of
disruption to visitation that can only be overcome through extraordinary efforts. See
Long v. Long, 3d Dist. Union No. 14-10-01, 2010-Ohio-4817, ¶ 32-33 (affirming
relocation as a change in circumstance where eight hours of travel would be required
to maintain visitation schedule). As the court pointed out, Ms. Tyner’s relocation was
within the same county and “relocation of the residential parent, by itself, is not
sufficient to be considered a change of circumstances.” Souders, 1st Dist. Hamilton
No. C-210469, 2022-Ohio-1953, at ¶ 12. Mr. Massong has not alleged circumstances
surrounding Ms. Tyner’s relocation that would overcome R.C. 3109.04(E)(1)(a)’s
presumption in favor of retaining the existing parenting decree.
{¶18} The juvenile court did not abuse its discretion in declining to find that
the events described above amounted to a change in circumstances, either individually
or in the collective. Accordingly, we overrule Mr. Massong’s first assignment of error.
B.
{¶19} Mr. Massong’s second assignment of error claims that the juvenile court
abused its discretion by not considering E.M.’s best interests. This assignment of error
only proceeds with a predicate determination that a change in circumstances occurred.
See Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-
2398, ¶ 20 (“After finding a change in circumstances, the court must determine
whether a modification is in the best interest of the children.”). The trial court found
the change in circumstances requirement unfulfilled, and thus dispositive, and did not
examine the best-interest factors. Because we agree that no change in circumstances
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occurred, and because Mr. Massong’s second assignment of error is premised on that
initial finding, his second assignment of error is likewise overruled.
C.
{¶20} In his third assignment of error, Mr. Massong contends that the juvenile
court erred in finding that the magistrate’s reliance on evidence presented during the
emergency motion hearing to be harmless error. Mr. Massong’s visitation rights were
suspended during the pendency of the emergency hearing, which took place after the
custody trial but before the magistrate issued his ultimate custody decision. The trial
court agreed that it was error for the magistrate to rely on evidence presented at the
emergency motion hearing, but also explained that it “conducted an independent
review of this matter, and [found] this error harmless, as there was sufficient evidence
to support the Magistrate’s Decision at the full trial on the matter.”
{¶21} Mr. Massong now requests that this court remand the matter and
instruct the trial court to offer him make-up time for the visitations he missed as a
result of the emergency motion, and to offer him more parenting time in general. First,
in some respects, this seems like a self-inflicted wound. Ms. Tyner’s counsel attempted
to withdraw the emergency order on the condition that Mr. Massong follow the court’s
orders regarding communication and exchange locations. The magistrate asked Mr.
Massong if that was acceptable, reminding him that his parenting time would be
reinstated that very day if Ms. Tyner withdrew the motion. Mr. Massong refused, more
focused on litigating past incidents from 2014 than on visitation with E.M. He cannot
now ask us to remedy a situation he himself created.
{¶22} Second, as to Mr. Massong’s claim of prejudice by virtue of the
magistrate’s improper reliance on evidence not pertinent to the matter at hand, we
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disagree. The trial court addressed this argument in its judicial entry, finding the
evidence from the full custody trial sufficient to support the magistrate’s decision even
without the evidence presented at the emergency motion hearing. In his brief, Mr.
Massong isolates certain statements made by the magistrate at the emergency hearing.
But the trial court relied on evidence from the full trial in its entry, and Mr. Massong
failed to point us to errors in that record on this assignment of error. Accordingly, we
overrule his third assignment of error.
D.
{¶23} In his fourth assignment of error, Mr. Massong maintains that the
juvenile court’s decision to limit his parenting time to only six hours every other week
runs counter to the manifest weight of the evidence and does not further E.M.’s best
interest. When establishing specific parenting time and determining a visitation
schedule, courts must consider fifteen enumerated factors as well as “any other factor
in the best interest of the child.” See R.C. 3109.051(D). The juvenile court “enjoys
broad discretion when setting parenting time and determining the conditions under
which parenting time will take place.” Cwik v. Cwik, 1st Dist. Hamilton No. C-090843,
2011-Ohio-463, ¶ 42. “Thus, we review the trial court’s [limiting of Mr. Massong’s]
parenting time under an abuse-of-discretion standard, as guided by the statutory best-
interest factors set forth in R.C. 3109.051(D).” Id.{¶24} The trial court engaged with all the statutory requirements in its entry
and made many findings supported by the record. For instance, the trial court noted
its concerns about the safety of E.M. pursuant to R.C. 3109.051(D)(7), highlighting Mr.
Massong’s violent text messages over the years and the fact that E.M. once came home
from a visit with bruises and a bitten ear. It considered the mental and physical health
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of the parties as directed by R.C. 3109.015(D)(9) and found that Mr. Massong
displayed anger management issues not just towards Ms. Tyner and Mr. Dwolf, but in
front of the court as well. And it rejected as unfounded Mr. Massong’s accusation that
Mr. Dwolf harmed E.M. by grabbing him by the shoulders. See R.C. 3109.051(D)(1).
{¶25} Mr. Massong responds that he credibly manifested remorse over his
past behavior and that the trial court should have afforded more weight to his versions
of the evidence. As continually emphasized by this and other Ohio courts, “[t]he trier
of fact is in the best position to judge the credibility of the witnesses and the weight to
be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No. C-180336,
2019-Ohio-4550, ¶ 16, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212(1967). We see no basis in the record to second-guess the trial court’s findings here.
Accordingly, we overrule Mr. Massong’s fourth assignment of error.
E.
{¶26} In his last assignment of error, Mr. Massong claims it was an abuse of
discretion for the juvenile court to fail to order the parties to attend coparenting
counseling. He contends, somewhat incredulously, that Ms. Tyner has “arguably
contributed to the friction between the parties to the same degree” he has, therefore
they both should attend coparenting counseling to learn how to reduce the conflict
between them.
{¶27} Courts may order mandatory coparenting counseling as a condition of a
shared parenting plan, see Teufel v. Teufel, 1st Dist. Hamilton No. C-160673, 2017-
Ohio-5732, ¶ 9, but Mr. Massong cites to no authority indicating that a court abuses
its discretion when it does not order counseling. The trial court here found that the
toxicity between the parties stems almost exclusively from Mr. Massong’s behavior, a
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finding undoubtedly supported by competent and credible evidence. In addition to
the disturbing text messages referenced by the court, Mr. Massong violated the court
order not to communicate directly with Ms. Tyner, refused to return E.M. at the
required time because Mr. Dwolf would not allow him in their home, failed to
exchange E.M. at the court-ordered location and forced Ms. Tyner to meet at a place
of his choosing, and spoke disparagingly about Ms. Tyner in front of E.M.
{¶28} We acknowledge Mr. Massong’s professed remorse about his past
behavior, but this calls to mind the adage that actions speak louder than words. The
trial court left open the possibility of increased visitation with E.M. if Mr. Massong
completes an anger management program or engages in counseling for at least six
months. That strikes us as a prudent course of action that could benefit all involved.
But on the present record, we cannot say that the trial court abused its discretion by
refusing to order coparenting counseling. Accordingly, Mr. Massong’s fifth
assignment of error is overruled.
* * *
{¶29} In light of the foregoing analysis, we overrule all five of Mr. Massong’s
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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