Toler v. Toler ( 2011 )

[Cite as Toler v. Toler, 2011-Ohio-3510.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
PATRICK V. TOLER :
: Appellate Case No. 10-CA-69
Plaintiff-Appellee :
: Trial Court Case No. 05-DS-1200
v. :
:
HOLLY N. TOLER (nka RAKES) : (Civil Appeal from Common Pleas
: (Court, Domestic Relations)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of July, 2011.
...........
KEITH R. KEARNEY, Atty. Reg. #0003191, 2160 Kettering Tower, Dayton, Ohio 45423
Attorney for Plaintiff-Appellee
DAVID M. McNAMEE, Atty. Reg. #0068582, 42 Woodcroft Trial, Suite D, Dayton, Ohio
45430
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Holly Toler, now known as Holly Rakes, appeals from an
order of the Clark County Court of Common Pleas, Domestic Relations Division, denying her
motion to terminate a shared parenting plan she had participated in with her ex-husband,
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plaintiff-appellant Patrick Toler. Rakes contends that the trial court erred by requiring her to
demonstrate a substantial change of circumstances in addition to demonstrating that
termination of the plan is in the best interest of the children. She further contends that the
trial court’s decision is not supported by the evidence.
{¶ 2} We conclude that even though the trial court erred by considering the issue of
whether there had been a substantial change in circumstances, that error was harmless in view
of the fact that the trial court also found that termination of the shared parenting plan would
not be in the children’s best interest, which finding is supported by competent, credible
evidence. Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 3} The parties were married on March 16, 1996. They have four minor children as
a result of their union. The parties were granted a dissolution of their marriage by order of
March 7, 2006. Of relevance hereto, the dissolution included a shared parenting agreement
designating Rakes as the primary residential parent while permitting “open and liberal
parenting time between the parties.” Toler was required to pay child support and to maintain
health insurance for the benefit of the children.
{¶ 4} In 2008, Rakes moved to terminate the shared parenting plan. The guardian ad
litem recommended that the shared parenting be terminated. After a hearing on the motion,
held in May 2010, the trial court denied the motion to terminate the shared parenting plan,
finding that Rakes had failed to demonstrate a change of circumstances, and further finding
that terminating the shared parenting plan would not be in the best interest of the children.
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{¶ 5} Rakes appeals from the order denying her motion to terminate the shared
parenting plan.
II
{¶ 6} The First and Second Assignments of Error state as follows:
{¶ 7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FOUND THAT THE SECOND DISTRICT COURT OF APPEALS MISSTATED AND
THEN MISAPPLIED THE DECISION OF THE SUPREME COURT OF OHIO IN FISHER
V. HASENJAGER (2007), 116 OHIO ST.3D 53.
{¶ 8} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FAILED TO TERMINATE THE EXISTING SHARED PARENTING AGREEMENT AND
NAME APPELLANT THE SOLE RESIDENTIAL PARENT AS RECOMMENDED BY
THE [GUARDIAN AD LITEM] BECAUSE IT USED THE INCORRECT STANDARD OF
REVIEW AND FOUND THAT THE OHIO SUPREME COURT’S HOLDING MEANT
THAT THE TRIAL COURT HAD TO FIRST FIND A CHANGE OF CIRCUMSTANCES
BEFORE IMPLEMENTING THE ‘BEST INTEREST TEST.’ ”
{¶ 9} Rakes contends that the trial court erred when it decided, as a preliminary matter,
that she was required to demonstrate a substantial change in the parties’ circumstances, in
addition to demonstrating that termination of the shared parenting plan would be in the best
interest of the children.
{¶ 10} Termination of a shared parenting plan is governed by R.C. 3109.04(E)(2)(c),
which provides as follows: “The court may terminate a prior final shared parenting decree
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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.”
{¶ 11} This court has held that “[t]his section of the statute only requires that the court
find that it is in the best interests of the minor child to terminate the shared parenting plan.”
Beismann v. Beismann, Montgomery App. No. 22323, 2008-Ohio-984, ¶ 8. “Significantly,
nothing in R.C. 3109.04(E)(2)(c) requires the trial court to find a change in circumstances in
order to terminate a shared parenting agreement.” Id., citing Goetze v. Goetze (March 27,
1998), Montgomery App. No. 16491.
{¶ 12} The trial court in this case indicated in a preliminary decision and entry that it
disagreed with our holding in Beismann. The trial court interpreted the decision of the
Supreme Court of Ohio in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, as
requiring both a finding of changed circumstances and a finding of best interests before
termination of a shared parenting order. Our decision in Beismann was not only subsequent
to Fisher v. Hasenjager, it cited Hasenjager.
{¶ 13} Although it is not essential to our disposition of this appeal, we must take this
occasion to remind the trial court that while it is perfectly free to disagree with prior holdings
of this court, it is nevertheless required to follow them. “ * * * [A] court’s decision made
after argument on a question of law necessary to the determination of a case is binding
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precedent in lower courts where the same issue is in controversy.” State v. McKinney (1992),
80 Ohio App.3d 470, 475. “A trial court has the obligation of following the decisions of the
reviewing courts on questions of law pertinent to a case in the process of trial.” Driscoll v.
Block (1965), 3 Ohio App.2d 351, 366.
{¶ 14} Of course, if there has been an intervening change in the law, as a result of a
constitutional amendment, the enactment of a statute, a subsequent decision of the Supreme
Court of Ohio, the United States Supreme Court, or this court, that might render a prior
decision of this court no longer binding. But Fisher v. Hasenjager, upon which the trial court
relied in this case, preceded our decision in Beismann v. Beismann, which referred to Fisher v.
Hasenjager. Thus, in deciding that a finding of a substantial change in circumstances is not
required to terminate a shared parenting agreement, we necessarily concluded that our decision
was not inconsistent with the holding in Fisher v. Hasenjager. The trial court was free to
disagree with us in that regard, but it was not free to fail to follow our holding.
{¶ 15} Subsequently, in its decision denying the motion to terminate the shared
parenting order, the trial court found that Rakes had failed to demonstrate a change in
circumstances sufficient to warrant a termination of the shared parenting plan. The trial court
then went on to also determine that termination of the shared parenting plan was not in the
best interest of the children.
{¶ 16} Thus, although the trial court’s consideration of whether there was a change in
circumstances was erroneous under our holding in Beismann,1 we conclude that this error was
1
Because the best-interest test is an independent ground in this case to deny the motion to terminate shared parenting, we find it
unnecessary to consider, in this case, whether Beismann v. Beismann, 2008-Ohio-984, should be overruled.
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harmless, since the trial court also found, after considering the best interest factors set forth in
R.C. 3019.04(F), that a termination was not in the best interest of the children, which was a
sufficient, independent basis for denying the motion to terminate.
{¶ 17} We now turn to the question of whether the evidence in the record supports the
trial court’s findings regarding the best interest of the children. A trial court enjoys broad
discretion in custody matters. Beismann v. Beismann, Montgomery App. No. 22323,
2008-Ohio-984, ¶ 20. Therefore, a reviewing court will not disturb a trial court’s findings
and decisions child custody cases absent an abuse of discretion. Id. The term “abuse of
discretion” implies that the trial court’s decision was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 18} R.C. 3109.04(F), which sets forth the factors for analyzing a question of the
best interests of a child, provides in relevant part as follows:
{¶ 19} “(1) In determining the best interest of a child pursuant to this section, whether
on an original decree allocating parental rights and responsibilities for the care of children or a
modification of a decree allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:
{¶ 20} “(a) The wishes of the child's parents regarding the child's care;
{¶ 21} “(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;
{¶ 22} “(c) The child's interaction and interrelationship with the child's parents,
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siblings, and any other person who may significantly affect the child's best interest;
{¶ 23} “(d) The child's adjustment to the child's home, school, and community;
{¶ 24} “(e) The mental and physical health of all persons involved in the situation;
{¶ 25} “(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
{¶ 26} “(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;
{¶ 27} “(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 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
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resulting in a child being an abused child or a neglected child;
{¶ 28} “(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;
{¶ 29} “(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
{¶ 30} “(2) ln determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not limited to, the factors
enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the
Revised Code, and all of the following factors:
{¶ 31} “(a) The ability of the parents to cooperate and make decisions jointly, with
respect to the children;
{¶ 32} “(b) The ability of each parent to encourage the sharing of love, affection, and
contact between the child and the other parent;
{¶ 33} “(c) Any history of, or potential for, child abuse, spouse abuse, other domestic
violence, or parental kidnapping by either parent;
{¶ 34} “(d) The geographic proximity of the parents to each other, as the proximity
relates to the practical considerations of shared parenting;
{¶ 35} “(e) The recommendation of the guardian ad litem of the child, if the child has
a guardian ad litem.”
{¶ 36} At the hearing, Rakes testified that she and Toler had difficulty communicating
regarding issues such as daycare, holiday visitation, health insurance coverage, medical
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treatment, homework and uncovered medical expenses. Toler acknowledged some of the
problems, but indicated that the parties were doing a better job of communicating in the recent
past. Indeed, the record shows that the parties had reached an agreement on parenting time
and modification of health insurance coverage.
{¶ 37} After reviewing the evidence, the trial court found that “the parties hereto do
have the ability to cooperate and make decisions jointly with respect to their children.” The
trial court further found that Rakes’s claims regarding daycare, uncovered medical expenses,
medical treatments or homework were not “nearly as significant of a controversy between the
parties as she suggests.” The trial court found that both parties have a “very close and loving
relationship” with the children and that both have done an “overall good job.” The trial court
noted that the children “are very well adjusted to their home, school and community, which in
this Court’s opinion somewhat substantiates the effectiveness of the existing shared parenting
plan.” While the Guardian Ad Litem recommended terminating the shared parenting, the trial
court noted that the GAL report had been filed eight months prior to the hearing and that the
GAL did not have the benefit of hearing the evidence presented at the hearing.
{¶ 38} The trial court found no evidence to suggest any mental or physical health
problems that would impact the shared parenting plan. The trial court stated that both parties
are likely to honor and facilitate parenting rights or visitation and that there was no evidence
either party had wilfully denied the other parent parenting rights. The court noted that Toler
had been regular and timely in making his child support payments, and had indeed overpaid.
Neither parent had been convicted of any criminal offense involving a child. The trial court
found that neither parent appeared to intend to move out of state.
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{¶ 39} It appears from the transcript that the parties did have a period of time where
they experienced some small difficulties getting along, but that the trial court is correct in its
assessment that those issues were minor. We conclude that the trial court’s findings are
supported by competent, credible evidence and that it did not abuse its discretion in finding
that the best interest of the children was being met by the shared parenting plan.
{¶ 40} The First and Second Assignments of Error are overruled.
III
{¶ 41} Bot of Rakes’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and HALL, JJ, concur.
Copies mailed to:
Keith R. Kearney
David M. McNamee
Hon. Thomas J. Capper