Simpson v. Genovese , 2023 Ohio 3532 ( 2023 )

[Cite as Simpson v. Genovese, 2023-Ohio-3532.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
TREVER SIMPSON, CASE NO. 2023-L-034
Plaintiff-Appellant,
Civil Appeal from the
- vs - Court of Common Pleas,
Juvenile Division
TAYLOR GENOVESE,
Defendant-Appellee. Trial Court No. 2014 PR 01189
OPINION
Decided: September 29, 2023
Judgment: Affirmed
R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellant).
Rochelle M. Hellier, Axelrod Law Office, 7976 Tyler Boulevard, Mentor, OH 44060 (For
Defendant-Appellee).
EUGENE A. LUCCI, J.
{¶1} Appellant, Trever Simpson (“father”), appeals the judgment of the Lake
County Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision
terminating a previous shared parenting plan and naming appellee, Taylor Genovese
(“mother”), residential parent and legal custodian of the parties’ minor child, T.S. We
affirm.
{¶2} In February 2011, mother gave birth to T.S. Father is the biological father,
but the parents were not married. In January 2015, the parties entered into a shared
parenting plan. Later, mother moved to modify the plan, which was modified by
agreement in October 2016. In September 2017, father moved to modify the allocation
of parental rights and responsibilities, and, in March 2018, a new shared parenting
plan was adopted by the trial court. In May 2018, mother filed a motion to modify and/or
terminate shared parenting. And in January 2019, father filed a motion to modify the
temporary and permanent allocation of parental rights and responsibilities. In January
2020, mother and father appeared before the trial court, indicating they reached an
agreement. They were placed under oath and testified to the terms of the agreement.
The parties were afforded 14 days to submit an agreed shared parenting plan and
agreed judgment entry.
{¶3} The parties failed to submit an agreement and the matter was ultimately
scheduled for trial on July 10, 2020. On that date, the parties submitted a new shared
parenting plan by agreement. The plan was adopted by the trial court on July 13, 2020.
Other than a specific parenting/visitation schedule, the parties agreed to, inter alia,
“[p]rovide the child with an emotional environment in which they are free to continue to
love their parents and to spend time with each other.” “Encourage good feelings from
the child about the other parent * * *.” “Communicate with the other parent openly,
honestly, and regularly to avoid misunderstandings which are harmful to the child.” “Do
not take sides or take issue with decisions or actions made by the other parent,
especially in front of the child.” “Refrain from arguing, fighting or degrading the other
parent in the presence of the child.” “Refrain from withholding time with the other parent
as punishment to * * * the other parent.”
{¶4} On April 6, 2021, mother filed a motion to terminate shared parenting. She
subsequently filed a motion to show cause against father alleging he withheld T.S. from
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her on several occasions. In September 2021, mother filed a motion to show cause
against father asserting he failed to pay his portion of the ordered guardian ad litem bond.
On January 7, 2022, father filed a motion to show cause against mother alleging she did
not allow father to have his holiday parenting time. On January 13, 2022, mother filed a
motion for no contact requesting that father ensure that the father’s wife (T.S.’s
stepmother) has no contact with mother in any way. The matter proceeded to a final
hearing before the magistrate on November 2, 2022.
{¶5} After the hearing, the magistrate issued her decision terminating the July
13, 2020 shared parenting plan. The magistrate named mother the residential parent
and legal custodian of the child. The magistrate additionally denied the various motions
to show cause filed by the parties, but granted mother’s motion for no contact requiring
father to ensure the stepmother does not contact mother. Father filed objections to the
decision, which were overruled by the trial court. The trial court adopted the
magistrate’s decision in full. This appeal follows.
{¶6} Appellant assigns the following as error:
{¶7} “The trial court erred and committed an abuse of discretion, including
adopting the magistrate’s decision, in recommending the termination of the sixth-
month- old shared parenting plan and granting the appellee the sole residential parent
and legal custodian of the minor child, and that the step-mother shall have no contact
with the appellee except for in the event of an emergency.”
{¶8} “In reviewing a trial court’s decision to adopt or reject a magistrate’s
decision, an appellate court looks for an abuse of discretion. Hayes v. Hayes, 11th
Dist. Lake No. 2005-L-138, 2006-Ohio-6538, at ¶ 10.” In re Wiley, 11th Dist. Portage
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No. 2008-P-0062, 2009-Ohio-290, ¶ 20. A juvenile court’s reallocation of parental
rights and responsibilities is also reviewed under an abuse of discretion standard.
Foxhall v. Lauderdale, 11th Dist. Portage No. 2011-P-0006, 2011-Ohio-6313, ¶ 26.
{¶9} The phrase “abuse of discretion” is one of art, connoting judgment exercised
by a court, which does not comport with reason or the record. Gaul v. Gaul, 11th Dist.
Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶ 24. “In determining whether the trial
court has abused its discretion, a reviewing court is not to weigh the evidence, but,
rather, must determine from the record whether there is some competent, credible
evidence to sustain the findings of the trial court.” Lucas v. Byers, 11th Dist. Lake Nos.
2020-L-010, 2020-L- 049, 2020-L-050, 2021-Ohio-246, ¶ 6, citing Clyborn v. Clyborn,
93 Ohio App.3d 192,196, 638 N.E.2d 112 (3d Dist.1994).
{¶10} R.C. 3109.04(E)(2)(c) provides:
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 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 its own motion or
upon the request of one or both parents, that shared
parenting is not in the best interest of the children. If
modification of the terms of the plan for shared parenting
approved by the court and incorporated by it into the final
shared parenting decree is attempted under division
(E)(2)(a) of this section and the court rejects the
modifications, it may terminate the final shared parenting
decree if it determines that shared parenting is not in the best
interest of the children.
{¶11} Pursuant to R.C. 3109.04(E)(2)(c), a trial court is not required to find a
change of circumstances prior to terminating a shared-parenting plan. In re K.R., 11th
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Dist. Trumbull No. 2010-T-0050, 2011-Ohio-1454, ¶ 44. Rather, in terminating a
shared parenting plan, the court must find that the plan is no longer in the best interest
of the child. Duricy v. Duricy, 11th Dist. Trumbull Nos. 2009-T-0078, 2009-T-0118,
2010-Ohio-3556, ¶ 37-38.
{¶12} The non-exhaustive, best-interest factors found in R.C. 3109.04(F)(1)
include: (a) the wishes of the child’s parents regarding the child’s care; (b) the wishes or
concerns of the child as expressed to the court; (c) the child’s interaction and
interrelationship with her parents and any other person who may significantly affect the
child’s best interest; (d) the child’s adjustment to her home, school, and community; (e)
the mental and physical health of all persons involved; (f) the parent more likely to honor
and facilitate visitation and companionship rights approved by the court; (g) whether either
parent has failed to make all child support payments; (h) whether either parent previously
has been convicted of or pleaded guilty to certain criminal offenses or whether either
parent has perpetrated child abuse or neglect; (i) whether the residential parent or one
of the parents subject to a shared parenting decree has continuously and willfully denied
the other parent his or her right to visitation in accordance with an order of the court; and
(j) whether either parent has established a residence, or is planning to establish a
residence, outside this state.
{¶13} Moreover, best interest factors related to shared parenting include: the
ability of the parents to cooperate and make decisions together relating to the child; the
ability of the parents to encourage the sharing of love, affection, and contact between the
child and the other parent; any history of, or potential for, child abuse, spousal abuse,
other domestic violence, or kidnapping by either parent; the geographic proximity of the
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parents to one another as that proximity relates to the practical considerations of shared
parenting; and the recommendation, if any, of the guardian ad litem. R.C.
3109.04(F)(2)(a)-(e).
{¶14} During cross-examination of father, mother’s counsel submitted
significant documentary evidence of father’s hostile and rancorous text messages. The
messages included name calling, threatening comments, threats of withholding
visitation, and threats to file contempt motions for various unclear reasons. The
messages were read aloud and father confirmed that he sent the messages.
{¶15} Father repeatedly referred to mother as a POS or pos, which he clarified
meant “piece of shit.” He also called her a “psycho,” “a psychopath,” and told T.S. her
mother is “mentally unstable.” Father referred to mother as a “heartless, selfish, loathing
manipulative cunt.” And father stated that the child would “hate” her one day because
she is a “POS mother, and let’s face it, so is your man [mother’s boyfriend], a POS
father.”
{¶16} Father also threatened, on social media, mother’s reputation and
employment. In November of 2020, father stated “You NEED help. One more word from
you out of line, and I’m having my wife post ALL of these to a SHAMING FACEBOOK
page to blast you, and there’s NOTHING you can do. Its completely LEGAL. So please
keep going. I’ll have your face PLASTERED in [L]ake [C]ounty for the true pos you are.”
(Emphasis sic.) This message was in response to an ostensible pick-up/drop-off issue
the parties had for T.S. The preceding messages father received from mother were short
and informational, not threatening or abusive.
{¶17} Father threatened to block mother from his cell phone (and, according to
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mother, did so once), notwithstanding the shared-parenting plan that was formerly in
effect. He also procured a phone for T.S. and threatened to block mother from that
phone. Eventually, according to mother, father did block mother for a month from
T.S.’s phone.
{¶18} In addition to father’s hostility, stepmother also sent at least one
aggressive and agitated message to mother, declaring:
I will straight press charges for you messaging this phone
[child’s phone]. You were warned. That’s it. You can contact
her, as always, through [father.] It’s you who never allowed
him to contact her through you. So GTFO my face with your
dramatic ass. Maybe, just maybe, if you didn’t teach your
daughter to lie and be cruel to others, she would still have a
phone. But since, unfortunately, for the time being, she has
to see you, she learns these behaviors from you. It’s very sad.
You should be literally utterly ashamed.
{¶19} Mother asserted that stepmother would use profanity towards her while
on the phone with father and within earshot of T.S. Stepmother also threatened mother
physically. According to mother, stepmother, with her voiced raised, “has threatened
to kick my ass.”
{¶20} Mother recounted an incident where, while attending T.S.’s soccer game,
stepmother approached her with a dog and told the dog “you can piss on this bitch.”
Mother stated that stepmother has told her, over the phone, to “go kill yourself” and
made other disparaging and profane comments. Mother admitted that there have been
times where she has said “not nice things” to stepmother. Mother stated, however, if
stepmother begins antagonizing her while on the phone with father, she simply hangs
up because “it’s not a conversation that needs to continue or it’s just going to keep
getting ugly.”
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{¶21} Mother testified that the parties can very seldom agree on anything
relating to T.S. Father believed that, if the parties could not agree on a course of health
care or medical treatment for T.S., no treatment should occur. Father threatened to file
a motion for contempt if mother gave the child medical treatment without his consent.
Father also alleged mother was in contempt of the shared-parenting plan by placing
T.S. “in counseling without [his] permission.” And father threatened to have mother “sent
to jail” if she consented to giving T.S. an HPV vaccine.
{¶22} The parties also had a disagreement regarding whether the child would
go to school in person or virtually. Father desired the latter, while mother advocated for
the former. Ultimately, T.S. attended school in person but not without the parties
pushing back against one another. Similarly, after a mask-wearing mandate was lifted,
mother still wanted T.S. to wear a mask, while father did not. Mother testified T.S. was
not vaccinated for COVID-19. Nevertheless, father signed a permission slip allowing
her to attend school without a mask.
{¶23} Further, when asked by her counsel whether she has ever been
personally insulted in her text messages with father, she responded in the affirmative.
She clarified:
Him calling me names, saying I belong in a trailer park.
“You’re a POS,” “You’re a terrible mother, just like your own
mother.” “I’m going to tell [T.S.] that you’re mentally ill.” “You
used your mom’s money for * * * a breast augmentation.” And
always throws that in my face, when that money had nothing
to do with him. Throws it at my face saying, “You’re a bitch,
you’re a cunt.” This, this, and that. The same song, different
day.
{¶24} When asked how often this occurs, mother stated “[a]s of lately, just about
every text.”
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{¶25} Mother filed her motion to terminate shared parenting on April 6, 2021,
approximately nine months after the parties entered the amended shared parenting plan
which was adopted by the court on July 13, 2020. All text messages submitted at the
hearing were sent between July 2020 and the date of trial, in November 2022. Similarly,
all testimony received regarding the parties’ tense relationship related to these dates.
Father was aware of the pending litigation upon service of the April 2021 motion, but
still continued to send threatening and hostile messages and seemingly desired to
increase, rather than ameliorate, the animosity between the parties. Significantly, father
did not file a motion to modify or terminate the shared parenting plan on his own behalf.
Father was on clear notice that his scathing communications could work against him,
but chose to continue sending them up to the time of the hearing.
{¶26} This court has previously held that “the failure of parents to communicate
or cooperate effectively is grounds for terminating an existing shared parenting plan.”
Brandt v. Brandt, 11th Dist. Geauga No. 2012-G-3064, 2012-Ohio-5932, ¶ 19, citing
Duricy, 2010-Ohio-3556, at ¶ 43, citing Bates-Brown v. Brown, 11th Dist. Trumbull No.
2006-T- 0089, 2007-Ohio-5203, and Harkey v. Harkey, 11th Dist. Lake No. 2006-L-273,
2008- Ohio-1027, ¶ 98. “Indeed, a shared parenting plan will only work if the parties
agree to share by cooperating and communicating with one another.” Brandt at ¶ 19;
see also S.H. v. C.C., 12th Dist. Madison No. CA2006-12-051, 2007-Ohio-4359, ¶ 31
(finding that shared parenting was not in the child’s best interest given the parents’
inability to cooperate and make decisions together with respect to the child); Rengan v.
Rengan, 2d Dist. Montgomery No. 18522, 2001 WL 726800, *2 (June 29, 2001) (lack
of communication between the parents would hinder the effective functioning of a
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shared parenting plan).
{¶27} The magistrate heard the evidence and issued findings of fact and
conclusions of law. In considering the child’s best interest, the magistrate stated:
The evidence clearly demonstrates a history of poor
communication between Mother and Father. Though
historically the poor communication has been on both sides,
as of late it appears Mother has improved in her
communication to Father while Father has continued to
communicate with Mother in a derogatory and inappropriate
manner. The testimony is replete [with] text message
exchanges of Father degrading and threatening Mother.
Major decisions for the minor child are only made after name
calling and significant disagreement. This Hearing Office[r]
does not believe Mother and Father have the ability to
effectively cooperate and make decisions jointly with respect
to the minor child. Additionally, there does not appear to be
the encouragement of love and affection between the minor
child and the other parent, especially given Father’s threats of
telling the minor child negative things about Mother.
Father does not believe the poor communication between
Mother and Father has had an effect on the minor child. This
Hearing Officer believes that to be inevitable.
{¶28} It is apparent from the record that the parties were unable to make
constructive mutual decisions relating to T.S. and her general well-being. Further, father’s
threats to malign mother publicly and tarnish T.S.’s personal perception of mother are
highly problematic in the context of any parenting arrangement, let alone a shared
parenting plan. The bulk of the documentary evidence indicated that father either initiated
or escalated tensions between the parties. Although mother conceded she participated
in the hostile exchanges, her testimony suggested she desired a less acrimonious
association with father. And father seemed to minimize or be indifferent to the impact the
lack of effective communication has (or would eventually have) on T.S.–these points
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militate strongly against retaining the previously adopted shared parenting plan.
{¶29} Based upon the foregoing, the magistrate concluded that termination of the
shared parenting plan is in the child’s best interest. The trial court agreed with the
magistrate. Upon thoroughly reviewing the record, we conclude the trial court did not
abuse its discretion abuse its discretion in adopting the magistrate’s decision that shared
parenting was not in the best interest of T.S. Similarly, we conclude the trial court did not
err in naming mother sole residential parent and legal custodian. Moreover, we further
hold, in light of the unfriendly exchanges between stepmother and mother, the trial court
did not err in adopting the magistrate’s decision that father must ensure that stepmother
has no contact with mother except for emergencies.
{¶30} Father’s assignment of error lacks merit.
{¶31} For the reasons discussed in this opinion, the judgment of the Lake County
Court of Common Pleas, Juvenile Division, is affirmed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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