Genhart v. David ( 2012 )

[Cite as Genhart v. David, 2012-Ohio-433.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SHANNON GENHART ) CASE NO. 10 MA 144
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
JOHN C. DAVID )
)
DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Appellee’s Application for
Reconsideration
Case No. 05 JI 721
JUDGMENT: Denied.
APPEARANCES:
For Plaintiff-Appellant: Atty. Charles E. Dunlap
3855 Starr’s Centre Drive, Suite A
Canfield, Ohio 44406
For Defendant-Appellee: Atty. Susan Gaetano Maruca
Atty. Christopher A. Maruca
The Maruca Law Firm, LLC
201 East Commerce Street
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 1, 2012
[Cite as Genhart v. David, 2012-Ohio-433.]
PER CURIAM.
{¶1} The matter before us is Appellee’s timely motion for reconsideration
filed January 3, 2012. Appellant filed her opposition to the motion on January 10,
2012. Appellee disagrees with our determination in Genhart v. David, 7th Dist. No.
10 MA 144, 2011-Ohio-6732 that, absent a custody decree or order altering
Appellant’s statutory custody right as an unmarried mother, Appellant retains her
status as the custodial and residential parent. Appellee argues that the juvenile
court’s March 20, 2006 journal entry, which adopted the magistrate’s decision
accepting the parties’ parenting agreement but did not specify a custodial or
residential parent, terminated Appellant’s statutory right to sole custody and gave
Appellee equal custody rights. Although Appellee did not raise this specific argument
in his brief, we gave the matter full consideration when determining whether the
record below reflected an error meriting relief under Civ.R. 60(B). Because our
Opinion on the merits does not contain any obvious error and we fully considered
each of the arguments in Appellee’s brief as well as the issue he now raises, we deny
this application for reconsideration.
{¶2} The standard for reviewing an application for reconsideration pursuant
to App.R. 26(A) is whether the application “calls to the attention of the court an
obvious error in its decision, or raises an issue for consideration that was either not
considered at all or was not fully considered by the court when it should have been.”
Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (1987), paragraph one of
the syllabus. Similarly, “[a]n application for reconsideration is not designed for use in
instances where a party simply disagrees with the conclusions reached and the logic
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used by an appellate court. App.R. 26 provides a mechanism by which a party may
prevent miscarriages of justice that could arise when an appellate court makes an
obvious error or renders an unsupportable decision under the law.” State v. Owens,
112 Ohio App.3d 334, 336, 678 N.E.2d 956 (1996).
{¶3} In our Opinion, we addressed the trial court’s decision to construe
Appellee’s motion for reconsideration filed to that court as a Civ.R. 60(B) motion for
relief from judgment in light of the court’s perceived “error” in assuming that Appellant
was the residential and custodial parent. We noted that married couples have equal
parenting and custody rights in the children from that marriage by default, even when
they are separated. R.C. 3109.03, Genhart, ¶19. We further noted that unmarried
mothers do not automatically share custody of their children. Instead, by statute,
they maintain sole residential and custodial parenting of their children “until a court of
competent jurisdiction issues an order designating another person as the residential
parent and legal custodian.” R.C. 3109.042, Id. at ¶18. In determining the proper
standard to apply to a motion to modify a shared parenting agreement, we
analogized to Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d
546, which explains that modifications of custody decrees require both a change in
circumstances and that the modification be in the best interests of the child, while
modifications of terms of the parenting agreement require only that the modifications
be in the best interests of the child.
{¶4} As explained by the Fisher Court, “[a] plan is not used by a court to
designate the residential parent or legal custodian; that designation is made by the
court in an order or decree. Therefore the designation of residential parent or legal
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custodian cannot be a term of a shared-parenting plan, and thus cannot be modified
pursuant to R.C. 3109.04(E)(2)(b).” Id. at ¶31. As discussed in the underlying
Opinion in this matter: where there is a shared parenting decree in a divorce
proceeding the parties continue their separate-but-equal parenting rights according to
the decree and any agreement implementing the decree. However, where, as here,
there is a paternity proceeding between unmarried individuals in which the parties
agree to share parenting time and the court, without issuing an order or decree
identifying a residential or custodial parent, adopts that agreement in a journal entry
that does not identify a residential or custodial parent, the statutory sole custody
rights of the unwed mother remain in effect. Genhart, ¶18–20. Custody cannot be
established by implication or by the title of an agreement between the parties.
Custody rights are determined by statute or by court order or decree. In this
instance, as we explained in our Opinion, they are established by R.C. 3109.042 in
the absence of a specific order or decree designating any party other than Appellant
the residential or custodial parent.
{¶5} For these reasons Appellee’s application for reconsideration is denied.
Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.