Logan v. Holcomb , 2013 Ohio 2047 ( 2013 )

[Cite as Logan v. Holcomb, 2013-Ohio-2047.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
JENNIFER LOGAN,
PLAINTIFF-APPELLANT, CASE NO. 9-12-61
v.
RICHARD HOLCOMB, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Family Court
Trial Court No. 05 PC 0417
Judgment Affirmed
Date of Decision: May 20, 2013
APPEARANCES:
Ted I. Coulter for Appellant
J.C. Ratliff and Jon L. Jenson for Appellee
Case No. 9-12-61
ROGERS, J.
{¶1} Plaintiff-Appellant, Jennifer Logan, appeals the judgment of the
Marion County Court of Common Pleas, Family Division, terminating her shared
parenting plan with Defendant-Appellee, Richard Holcomb, naming Holcomb as
the residential parent of the couple’s minor child, A.H., and finding Logan in
contempt for denying Holcomb’s parental time. On appeal, Logan argues that the
trial court erred by: (1) finding that a change in circumstances pursuant to R.C.
3109.04(E)(1)(a) occurred; (2) finding that the termination of the parties’ shared
parenting plan and naming of A.H. as residential parent was in the best interest of
A.H.; (3) failing to consider whether the harm likely to be caused by a change of
environment was outweighed by its advantages; and (4) finding that Logan
continuously and willfully denied Holcomb’s parenting time and was responsible
for his attorney fees. For the reasons that follow, we affirm the trial court’s
judgment.
{¶2} On April 28, 2011, the trial court adopted a shared parenting plan
regarding the parties’ rights and responsibilities as they relate to care of A.H.
Under the plan, Logan was deemed the primary residential parent while Holcomb
was entitled to visitation on alternating weekends and every Thursday from 4:00
p.m. to 7:30 p.m. On January 19, 2012, Holcomb filed a motion to hold Logan in
contempt of court for violating the visitation provision of the shared parenting
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plan. Despite the motion, the trial court did not issue an order to appear in
accordance with R.C. 2705.031(C). Nevertheless, on January 30, 2012, Logan’s
attorney entered an appearance on her behalf.
{¶3} On April 26, 2012, Holcomb filed a motion to terminate the parties’
shared parenting plan. Shortly thereafter, Logan responded with a motion to
modify the shared parenting plan to reduce Holcomb’s visitation time, or, in the
alternative, to terminate the plan. The trial court conducted a hearing on
September 17, 2012 to resolve the competing motions. During the hearing, the
following relevant evidence was adduced.
{¶4} Holcomb called Logan as though on cross-examination. According to
Logan, since the imposition of the shared parenting plan, she had moved twice but
not informed Holcomb of her new address. At the time of the hearing, Logan
lived in Nevada, Ohio, and she acknowledged that neither her family members nor
friends live nearby. She also indicated that A.H. did not have any friends in the
neighborhood surrounding the house.
{¶5} As to her financial position, Logan testified that she was fired in
October 2011 because she failed a drug test. Due to her termination, Logan’s only
source of income was a biweekly unemployment benefit of $236.00. Logan
indicated that the monthly bills she incurred were greater than this limited
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unemployment compensation and that she had previously received a shutoff notice
for her electricity.
{¶6} Logan stated that A.H. was experiencing some difficulties in school.
He was held back a year in the first grade and has displayed difficulties with
reading. Further, A.H. had 15 absences and four disciplinary issues in the
previous year, including one school suspension. Further, A.H. was not involved in
any extracurricular activities. Logan acknowledged that all of these difficulties
occurred while she was A.H.’s primary residential parent.
{¶7} In regard to Holcomb’s visitation, Logan admitted that she had
previously denied Holcomb’s visitation on several occasions. One relevant
exchange proceeded as follows:
Q: So from October 14th until February 9th [Holcomb] wasn’t
able to get visitation until he came to court, correct?
A: Yes.
Q: Then even after he started to get visitation in February, you
would agree with me that during the month of April, the entire
month of May, you would not allow him to have a Thursday mid-
week visitation, would you? Ma’am?
A: Every other Thursday, no.
Q: I’m going to ask you that – I had you refer to that to refresh
your memory, but I’m asking you –
A: Oh, okay.
Q: - from April, from April and May –
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A: Correct.
Q: - he did not get any Thursday visitation, correct?
A: Not every Thursday, no, he did not. Tr., p. 61-62.
Similar exchanges occurred regarding other times in which Logan denied
Holcomb’s visitation. Logan explained that she denied visitation on some
occasions because A.H. had a school play, was being punished for misbehavior, or
was sick. She further testified that Holcomb did not show up on several occasions
for his visitation.
{¶8} Logan indicated that she would not accept the visitation schedule she
requested for Holcomb in her motion to modify the shared parenting plan. She
explained her reasoning as follows:
Q: * * * Would you feel that you were part of your son’s life if
your visitation was only Saturday from 11:00 to 5:00 or 6:00?
A: Yes, I would.
Q: You’d take that schedule?
A: Being a mother? No, I wouldn’t.
Q: Do you think there’s a difference between being a mother and
being a father?
A: Yes, I do. I mean, I’ve never been a father. I’ve only been a
mother, so –
Q: Do you think as a mother, that you should be entitled to more
visitation?
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A: Being a mother, yes, I do. Tr., p. 76.
{¶9} Holcomb then took the stand. He testified that he had lived in the
same house in La Rue, Ohio for eight years and that he shares the house with his
live-in girlfriend and her teenage daughter. Holcomb stated that his parents,
grandparents, and sister all live within a short distance of the house and that A.H.
has a couple of friends in the neighborhood.
{¶10} Like Logan, Holcomb testified that he was unemployed. He said that
he was attending school for robotic engineering. As a result, Holcomb’s live-in
girlfriend was primarily responsible for the bills from her income as an employee
at Hardin Hospital. Holcomb indicated that if a job did not materialize for him
after graduation, he would return to his work as a laborer for his father’s business.
{¶11} Holcomb testified that he played various sports, including baseball,
with A.H. and that he wanted his son to participate in sports and other
extracurricular activities. Holcomb also indicated that he was concerned about
A.H.’s educational progress. To facilitate A.H.’s education, Holcomb purchased a
LeapFrog learning device for him, but Holcomb testified that it was not used when
A.H. went to Logan’s house. Holcomb said that he did not attend parent-teacher
conferences because he was never informed of them.
{¶12} Holcomb confirmed that he was “denied a significant part of [his]
visitation,” including on Christmas, and that Logan did not inform him of her
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address changes. Tr., p. 90. He specifically testified as follows regarding one
denial of his visitation:
Q: And there was some time period then when you went to [the
parties’ agreed pickup location] and [Logan] wasn’t there?
A: Yes, I went to pick [A.H.] up on one of my Thursday
visitations and I texted her and asked her if she was sending him out
and she replied by saying, no, he’s got a bunch of school work and
we’ve moved to Nevada and you don’t know where we live, good
luck getting him. Tr., p. 93.
Holcomb also testified regarding his attempts to exercise his visitation:
Q: So what were your – what attempts did you try to make to get
your visitation then?
A: I had went to – I had texted her and called her, went to her
mom and dad’s house on days that I was supposed to get him.
Q: When you tried to get him in October, you said – let’s say the
first time, then, you were denied visitation in October, what attempts
do you believe you made to get your son on that first time?
A: I had came [sic] and she had come out and told me, argued with
me about his living arrangements, and then I got in the truck and
took off at that time. Tr., p. 94.
According to Holcomb, the consistent denial of his visitation led him to “kind of
give up on it knowing that [Logan] wasn’t going to give [A.H.] to [him].” Tr., p.
98.
{¶13} Holcomb said that he did not cast Logan in a negative light when
talking to A.H. He also indicated that he never lost interest in seeing his son.
Further, Holcomb testified that he believed that he could do a “better job” as
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A.H.’s primary residential parent than Logan. Tr., p. 110. Still, he wanted Logan
to retain visitation because he believed that A.H. needed both parents in his life.
{¶14} Additionally, Holcomb testified to Logan’s propensity for calling the
police while A.H. is in Holcomb’s care:
Q: Anything else that you think needs to be brought to the Court’s
attention regarding this matter?
A: Just the fact that [Logan] calls the cops over everything. I
mean, it’s stated in there the one time she had called the cops and
said that she could not have any contact with [A.H.] and she was
worried about his well-being, whenever the sheriff wrote it right in
his report that she had actually spoke [sic] to [A.H.] right on the
phone before she had called and filed her report.
And then another time she had come [sic] out and tried to get
him from my house because I had left him with my girlfriend while I
was working for a few hours, and she brought her boyfriend out and
her come [sic] out and she called the cops saying that my house was
leaking water in his room and it was unsuitable for a child. And
when the cops come [sic] out, because she called the cops, and
investigated the room and said there was nothing wrong with it and
told her, there’s nothing you can do and made them leave. Tr., p.
112-13.
{¶15} On cross-examination, Holcomb acknowledged that he did not
contact A.H.’s school to discover the times for parent-teacher conferences. He
also admitted that during some of his visitations, A.H. stayed at the house of
Holcomb’s father. Further, Holcomb testified that he was previously charged with
domestic violence and pleaded guilty to disorderly conduct.
{¶16} Holcomb also discussed an incident in which A.H. was allegedly
injured. The following pertinent exchange about this incident occurred:
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Q: Can you explain the incident as far as the trampoline goes and
how he ended up with the punch in the chest?
A: We was [sic] wrestling on the trampoline.
Q: And?
A: And what?
Q: What happened that he got a punch in the chest?
A: You make it sound as though I was punching him * * *. We
was [sic] wrestling around.
Q: That’s why I’m asking, for you to tell me what happened.
A: Nothing. We was running around, playing, jumping on the
trampoline, pretend wrestling.
Q: But isn’t it true that you did him, that you did punch him?
A: Wrestling around, yes.
Q: No, I didn’t say wrestling, I said punching him. Did you punch
him?
A: I might have tapped him.
Q: Tapped him? Did it leave a bruise?
A: A pea-sized bruise. Tr., p. 126-27.
{¶17} Holcomb further discussed the living arrangements in his house. The
house is actually a trailer with three small bedrooms of which A.H. had one to
himself. He also indicated that lived in the house rent-free.
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{¶18} Holcomb admitted that he did not know of several of A.H.’s medical
ailments. He also said that on a previous occasion, he refused to pay A.H.’s
medical bills. Further, Holcomb testified that his girlfriend and mother had paid
some of his child support obligations for A.H.
{¶19} After Holcomb’s offered his testimony, he rested.
{¶20} Logan then took the stand a second time to present her own case-in-
chief. She discussed a safety plan that she received from Children’s Services. The
plan instructed Logan to not allow Holcomb to have any contact with her or A.H.,
which precluded her from allowing Holcomb’s visitation for a week. However,
after investigating Holcomb for a week due to the trampoline incident described
above, Child Services withdrew the safety plan and Logan said that she restarted
allowing Holcomb to have his visitation.
{¶21} Logan explained her basis for the termination of the shared parenting
plan as follows:
I feel that [Holcomb] is not – like he stated his self [sic], he’s given
up on [A.H.]. He’s given up coming to get him. He – he puts other
people in front of [A.H.]. He doesn’t hold [A.H.] up to where he
needs to be and [A.H.] comes home and he’s upset about things. Tr.,
p. 157.
She also testified that her communication with Holcomb has completely broken
down and that his family members have interfered with their relationship.
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{¶22} On cross-examination, Logan admitted that she has spoken
unfavorably of Holcomb with A.H. She also acknowledged that she audio
recorded her conversations with A.H. about his weekend visitations with
Holcomb. Once Logan offered her testimony, she rested.
{¶23} The trial court admitted into evidence the assessment prepared by the
Family Services Coordinator after its investigation, which included interviews
with A.H., Logan, and Holcomb. The assessment indicated that A.H. was angry
with his situation and “expressed that he would like to live with his dad.” (Court’s
Exhibit 1, p. 7). The assessment also stated that “[b]ased on [Logan]’s notes she
was non-responsive to some of [Holcomb]’s attempts to execute his parenting time
with [A.H.].” (Id. at p. 8). After its investigation, the Family Services
Coordinator recommended that the shared parenting plan continue, but that
Holcomb no longer have Thursday visitation time due to A.H.’s academic and
behavioral issues.
{¶24} On October 1, 2012, the trial court issued its ruling on the parties’
competing motions. It found that Logan denied Holcomb’s visitation rights “on
numerous occasions” from October 2011 to February 2012 and that she failed to
inform him of her changes in address. (Docket No. 73, p. 2). As a result, the trial
court found that Logan was in contempt of court and ordered that she pay
Holcomb’s attorney fees for bringing the contempt motion.
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{¶25} The trial court also ordered that the parties’ shared parenting plan be
terminated. In doing so, the trial court applied R.C. 3109.04(E)(2)(c), extensively
discussed its consideration of the factors contained in R.C. 3109.04(F)(1), and
found that the termination of the plan was in A.H.’s best interests. The trial court
also found that a change in circumstances, as manifested by the parties’ inability to
communicate and effectuate the shared parenting plan’s visitation provisions,
supported the termination of the plan. In addition to the termination of the shared
parenting plan, the trial court named Holcomb the residential parent and legal
custodian of A.H. while granting Logan parenting time in accordance with Loc.R.
32.
{¶26} Logan timely appealed the trial court’s judgment, presenting the
following assignments of error for our review.
Assignment of Error No. I
IN SUPPORT OF THE TERMINATION OF THE PRIOR
PARENTING PLAN FOR THE MINOR CHILD, THE TRIAL
COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY DETERMINING THERE WAS A
SUBSTANTIAL AND SUFFICIENT “CHANGE IN
CIRCUMSTANCES” PURSUANT TO OHIO REVISED CODE
3109.04(E)(1)(A).
Assignment of Error No. II
IN SUPPORT OF THE MODIFICATION OF THE PRIOR
PARENTAL RIGHTS AND RESPONSIBILITIES FOR THE
MINOR CHILDREN [SIC] AND PURSUANT OF [SIC] OHIO
REVISED CODE 3109.04(E)(1)(A) AND 3109.04(E)(1), THE
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TRIAL COURT ERRED AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND ABUSED ITS
DISCRETION IN DETERMINING “THAT THE
MODIFICATION IS NECESSARY TO SERVE THE BEST
INTEREST OF THE CHILD.”
Assignment of Error No. III
IN SUPPORT OF THE TERMINATION OF THE PRIOR
SHARED PARENTING PLAN FOR THE MINOR CHILD
AND PURSUANT OF [SIC] OHIO REVISED CODE
3109.04(E)(1)(A)(III), THE TRIAL COURT ERRED AND
ABUSED ITS DISCRETION BY DETERMINING THAT
“THE HARM LIKELY TO BE CAUSED BY A CHANGE OF
CIRCUMSTANCES IS OUTWEIGHED BY THE
ADVANTAGE THAT A CHANGE OF ENVIRONMENT
WOULD HAVE ON THE MINOR CHILD.”
Assignment of Error No. IV
IN SUPPORT OF THE FINDING OF THE PLAINTIFF-
APPELLANT IN CONTEMPT OF COURT, THE TRIAL
COURT ERRED AND ABUSED ITS DISCRETION BY
DETERMINING THAT THE PLAINTIFF-APPELLANT HAD
CONTINUOUSLY AND WILLFULLY DENIED THE
DEFENDANT-APPELLEE PARENTING TIME AND
SHOULD PAY ATTORNEY FEES.
{¶27} Due to the nature of the assignments of error, we elect to address
Logan’s first and third assignments of error together.
Assignments of Error Nos. I & III
{¶28} In her first assignment of error, Logan argues that the trial court erred
in finding that there was a change of circumstance under R.C. 3109.04(E)(1)(a).
Meanwhile, in her third assignment of error, Logan contends that the trial court
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erred in failing to consider whether the harm of naming Holcomb as the residential
parent was outweighed by its advantages pursuant to R.C. 3109.04(E)(1)(a)(iii).
Because we find that R.C. 3109.04(E)(2)(c), and not R.C. 3109.04(E)(1)(a),
applies to this matter, we disagree with Logan.
Standard of Review
{¶29} Decisions concerning child custody matters rest within the sound
discretion of the trial court. Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
Custody determinations “are some of the most difficult and agonizing decisions a
trial judge must make,” and, therefore, appellate courts grant “wide latitude” to
their consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418
(1997). As such, a reviewing court will not reverse a trial court’s decision
regarding child custody absent an abuse of discretion. Masters v. Masters, 69
Ohio St.3d 83, 85 (1994). A trial court will be found to have abused its discretion
when its decision is contrary to law, unreasonable, not supported by the evidence,
or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 17-18
(2d Dist.). When applying the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). Further, in applying abuse of discretion
review here, we are mindful that “[w]hile a trial court’s discretion in a custody
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modification proceeding is broad, it is not absolute, and must be guided by the
language set forth in R.C. 3109.04.” Miller at 74.
R.C. 3109.04(E)(1)(a) and (E)(2)(c)
{¶30} There is disagreement among the parties as to which section of the
Revised Code controls this matter. Logan suggests that R.C. 3109.04(E)(1)(a)
applies here. This section provides as follows:
The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on
facts that have arisen since the prior decree or that were unknown to
the court at the time of the prior decree, 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, and that the
modification is necessary to serve the best interest of the child. In
applying these standards, 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 following applies:
(i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to a
change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child. R.C. 3109.04(E)(1)(a).
Under this provision, trial courts must determine three things: “(1) Has there been
a change in circumstances? (2) Is this modification in the best interest of the child?
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(3) Will the harm that will result from the change be outweighed by the benefits
that will result from the change?” Clark v. Smith, 130 Ohio App.3d 648, 653 (3d
Dist. 1998). In Eatherton v. Behringer, 3d Dist. No. 13-11-12, 2012-Ohio-1584,
we found “that the trial court must independently determine each step within R.C.
3109.04(E)(1)(a).” (Emphasis added.) Id. at ¶ 14.
{¶31} Conversely, Holcomb points us to R.C. 3109.04(E)(2)(c), which
provides, in relevant part, as follows:
(E)(2) In addition to a modification authorized under division (E)(1)
of this section:
***
(c) The court may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under division
(D)(1)(a)(i) of this section upon the request of one or both of the
parents or whenever it determines that shared parenting is not in the
best in interest of the children. The court may terminate a prior final
shared parenting decree that includes a shared parenting plan
approved under division (D)(1)(a)(ii) or (iii) of this section if it
determines, * * * upon the request of one or both parents, that shared
parenting is not in the best in interest of the children.
By R.C. 3109.04)(E)(2)(c)’s plain terms, it merely requires that the party seeking a
termination of a shared parenting plan prove that the termination is in the best
interests of the minor child. See Kougher v. Kougher, 194 Ohio App.3d 703,
2011-Ohio-3411, ¶ 18 (7th Dist.) (“The appellate courts that have dealt with this
specific question have concluded that R.C. 3109.04(E)(2)(c), clearly labeled in the
statute as a different procedure from that detailed in R.C. 3109.04(E)(1)(a),
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requires only that the termination of a shared-parenting decree be in the best
interests of the child.”). As such, when R.C. 3109.04(E)(2)(c) applies, “the trial
court is not required to determine the existence of a change of circumstances prior
to the termination of a shared parenting plan.” (Emphasis sic.) Green v. Richards,
6th Dist. No. WD-12-039, 2013-Ohio-406, fn. 1; accord Curtis v. Curtis, 2d Dist.
No. 25211, 2012-Ohio-4855, ¶ 7; Nolan v. Nolan, 4th Dist. No. 11CA3444, 2012-
Ohio-3736, ¶ 43; In re J.L.F., 8th Dist. No. 97405, 2012-Ohio-1748, ¶ 4; In re
K.R., 11th Dist. No. 2010-T-0050, 2011-Ohio-1454, ¶ 47. The trial court is
likewise not required to determine the balance of harm and benefits that comes
with changing the child’s residential parent. See Kougher at ¶ 25 (finding that
R.C. 3109.04(E)(2)(c) only requires that a party show that a termination of the
shared parenting plan is in the best interest of the child).
{¶32} Here, both parties requested the termination of their shared parenting
plan in their motions. Further, the trial court indicated that it applied R.C.
3109.04(E)(2)(c) in rendering its decision and explicitly ordered the termination of
the parties’ shared parenting plan. As a result, we are compelled to find that R.C.
3109.04(E)(2)(c) applies to this matter and that the trial court was not required to
find either a change in circumstances or that the harm of a change in residential
parent was outweighed by its advantages. See Poshe v. Chisler, 11th Dist. No.
2010-L-017, 2011-Ohio-1165, ¶ 21 (finding that “[d]ue to the clear and plain
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language of the magistrate’s finding and the trial court’s entry, the shared
parenting plan was terminated”). Since these issues are immaterial to the trial
court’s ultimate determination, Logan’s first and third assignments of error
challenge findings that have no bearing on the trial court’s ruling.1 See id.(overruling assignment of error challenging termination of a shared parenting plan
due to the trial court’s failure to assess a change in circumstances on the grounds
that R.C. 3109.04(E)(2) applied and there was no need for such an analysis). As
such, we are unable to find any reversible error in the trial court’s judgment on
these bases.
{¶33} Accordingly, we overrule Logan’s first and third assignments of
error.
Assignment of Error No. II
{¶34} In her second assignment of error, Logan argues that the trial court
erred in finding that the termination of the parties’ shared parenting agreement and
the naming of Holcomb as residential parent were in A.H.’s best interests. We
disagree.
1
The trial court, relying on In re Illig, 3d Dist. No. 13-08-26, 2009-Ohio-916, indicated that it had to
consider whether a change in circumstance occurred before deciding to terminate the shared parenting plan.
However, Illig is inapposite here because it involved the application of R.C. 3109.04(E)(2)(b) and its
modification of the terms contained in a shared parenting plan. Id. at ¶ 15-16. Since Illig did not implicate
the termination of a shared parenting plan, our decision there is distinguishable from this matter.
Similarly, Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, does not apply here either because its
holding only implicates the modification of shared parenting plans under R.C. 3109.04(E)(1)(a). See In re
K.R., at ¶ 48 (distinguishing Fisher on the grounds that the matter involved the termination of a shared
parenting plan, not a modification of terms).
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{¶35} When terminating a shared parenting plan under R.C.
3109.04(E)(2)(c), the trial court must consider the best interests of the child. To
appropriately perform this analysis, courts must take into account the factors
outlined in R.C. 3109.04(F)(1), which are as follows:
(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
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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
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.
The trial court is also empowered to consider any other relevant factor. R.C.
3109.04(F)(1).
{¶36} After deciding to terminate a shared parenting plan, “the court shall
proceed and issue a modified decree for the allocation of parental rights and
responsibilities for the care of the children under the standards applicable under
divisions (A), (B), and (C) of this section as if no decree for shared parenting had
been granted and as if no request for shared parenting ever had been made.” R.C.
3109.04(E)(2)(d). Pursuant to R.C. 3109.04(B)(1), trial courts are required to
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“take into account that which would be in the best interest of the children” when
determining how to allocate parental rights and responsibilities.
The Trial Court’s Best Interests Analysis
{¶37} When reviewing a trial court’s best interests analysis, we need only
address two items: “(1) [whether] the trial court considered all of the necessary
factors listed in R.C. 3109.04(F)(1); and (2) [whether] there is competent, credible
evidence supporting the trial court’s conclusion that it was in the children’s best
interest to designate [the other parent] as residential parent.” Heiser v. Heiser, 3d
Dist. No. 10-07-02, 2007-Ohio-5487, ¶ 27. Here, the first prong of our inquiry is
satisfied because the trial court explicitly indicated that it considered the factors
contained in R.C. 3109.04(F)(1) before terminating the parties’ shared parenting
plan. Indeed, the trial court separately addressed each item of R.C. 3109.04(F)(1)
in its judgment entry.
{¶38} Further, we find that the second prong of our inquiry is satisfied.
Based on the evidence adduced at the hearing, A.H.’s current living situation has
resulted in slow educational development and several serious disciplinary issues at
school. Moreover, the record is replete with evidence supporting the trial court’s
finding that Logan has consistently denied Holcomb’s parenting time and that the
parties have a hostile relationship. The record also supports the trial court’s
finding that Logan has interfered with the development of Holcomb’s and A.H.’s
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relationship. She has talked negatively about Holcomb, concealed her address,
failed to discuss A.H.’s education with Holcomb, and has sought to implicate
Holcomb in negative conduct by calling the police multiple times and
interrogating her son after weekend visits. Finally, according to the Family
Services assessment, A.H. is angry and has an interest in living with Holcomb,
with whom he has a good relationship. Based on this evidence, we are unable to
find that the trial court abused its discretion in terminating the shared parenting
plan and naming Holcomb as the residential parent.
{¶39} On appeal, Logan points to several portions of the record indicating
that the termination of the shared parenting plan and naming of Holcomb as
residential parent is not in A.H.’s best interests. She also claims that it was
erroneous for the trial court to give more weight to Holcomb’s testimony than her
own. While there is indeed evidence suggesting that A.H.’s best interests would
be best served if Logan was the residential parent or shared parenting continued, it
is not so overwhelming as to suggest that the trial court abused its discretion in
concluding to the contrary. See Weese v. Griesheimer, 4th Dist. No. 98CA2436
(Mar. 11, 1999) (“Upon review, we find strong evidence supporting both positions
[as they relate to the child’s best interests]. Bearing in mind that we are not free to
substitute our judgment for that of the trial court, we find that the trial court did
not err [in selecting one of the positions].”). Also, the trial court was well within
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its discretion to grant greater weight to Holcomb’s testimony over Logan’s
testimony. See Sellers v. Sellers, 4th Dist. No. 09CA45, 2010-Ohio-3712, ¶ 17
(“We observe that appellant’s main complaint appears to be that the trial court did
not credit her witnesses and their testimony. As we have noted, however,
credibility, especially in child custody matters, is a matter reserved for the trier of
fact and we will not second-guess credibility determinations.”). As such, we find
Logan’s arguments to be unavailing.
{¶40} Accordingly, we overrule Logan’s second assignment of error.
Assignment of Error No. IV
{¶41} In her fourth assignment of error, Logan contends that the trial court
improperly found that she was in contempt of court for denying Holcomb’s
parenting time. She advances both procedural and substantive grounds for her
argument. First, Logan argues that the contempt finding was improper because the
trial court did not issue an order to appear under R.C. 2705.031(C). Second, she
asserts since Holcomb did not offer corroborating evidence for his own testimony,
he failed to provide clear and convincing evidence to support a contempt finding.
We disagree with both of Logan’s arguments.
Logan’s Procedural Argument
{¶42} Pursuant to R.C. 2705.031, a contempt action is appropriate where a
party has been denied his parenting time under a shared parenting plan. Both the
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statute for contempt proceedings arising from the denial of parenting time and
“[t]he tenets of procedural due process mandate that the alleged contemnor receive
notice of the charges through a court.” Sancho v. Sancho, 114 Ohio App.3d 636,
641 (3d Dist. 1996), citing R.C. 2705.031(C) (“In any contempt action initiated
pursuant to division (B) of this section, the accused shall appear upon the
summons and order to appear that is issued by the court.”). But, procedural due
process rights are waivable and a party’s failure to challenge a lack of notice of
contempt charges in the trial court effectuates a waiver. Id., citing D.H. Overmyer
Co. of Ohio v. Frick Co., 405 U.S. 174, 92 S.Ct. 775 (1971). Here, Logan did not
object to the lack of notice regarding the contempt charges brought by Holcomb
and in fact she proceeded to defend against the charges at the hearing. As such,
she has waived this issue and we are unable to find that the lack of notice gives
rise to a reversal. Id. at 642; accord State v. Miller, 5th Dist. No. 02 CA 16, 2003-
Ohio-948, ¶ 31.
Logan’s Substantive Argument
{¶43} A finding of contempt must be based on clear and convincing
evidence. Pugh v. Pugh, 15 Ohio St.3d 136, 139 (1984). Clear and convincing
evidence is “[t]he measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the allegations sought to be
established.” In re Estate of Haynes, 25 Ohio St.3d 101, 103 (1986). This
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standard is “intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt in criminal cases.
It does not mean clear and unequivocal.” Id. at 104. Additionally, when “the
degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Cross v.
Ledford, 161 Ohio St. 469, 477 (1954). Thus, we are required to determine
whether the trial court’s determination was supported by sufficient credible
evidence to satisfy the requisite degree of proof. In re McCann, 12th Dist. No.
CA2003-02-017, 2004-Ohio-283, ¶ 12.
{¶44} The central thrust of Logan’s argument is that Holcomb did not
present clear and convincing evidence to support a contempt finding because he
failed to corroborate his own testimony that Logan denied him parenting time.
There are two flaws with this argument. First, Holcomb’s testimony about the
denial of his visitation time was confirmed by Logan’s own admissions in her
testimony. She acknowledged that on several occasions, she would not allow
Holcomb to take A.H. during visitations. This acknowledgment was confirmed in
the Family Services Coordinator’s assessment, which indicated that Logan’s notes
show she denied Holcomb’s parenting time on several occasions. Further, Logan
admitted that she purposefully kept her address from Holcomb and was
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confrontational with him on occasions that he sought to exercise his visitation
rights. These admissions, combined with Holcomb’s extensive testimony
regarding the denial of his visitation and the Family Services Coordinator’s
assessment, constitute sufficient credible evidence to support the trial court’s
finding of contempt.
{¶45} Second, Logan has not cited, and we cannot find, a case that requires
corroboration of a party’s testimony to satisfy the clear and convincing evidence
threshold. Indeed, Ohio courts, including the Supreme Court, have consistently
recognized that the testimony of a single witness can satisfy such a threshold.
E.g., Cross at 478 (“The mere number of witnesses * * * is not to be taken as a
basis for resolving disputed facts.”); Knox v. Knox, 7th Dist. No. 04 JE 24, 2006-
Ohio-1154, ¶ 52 (“The clear and convincing evidence standard may be met by the
testimony of a single witness.”); Baker v. Blevins, 162 Ohio App.3d 258, 2005-
Ohio-3664, ¶ 13 (2d Dist.) (“[A] party is not precluded from establishing a case by
clear and convincing evidence simply because there are conflicts in the testimony.
A court may choose * * * to believe the testimony of one witness over another.”).
In light of the flaws in Logan’s argument and because the record contains
sufficient credible evidence, from both Holcomb’s and Logan’s testimony, as well
as the Family Services Coordinator’s assessment, to support the trial court’s
judgment, we decline to second guess it or to disturb it on appeal.
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{¶46} Accordingly, we overrule Logan’s fourth assignment of error.
{¶47} Having found no error prejudicial to Logan, in the particulars
assigned and argued, we affirm the trial court’s judgment.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr
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