King v. King , 2012 Ohio 1586 ( 2012 )

[Cite as King v. King, 2012-Ohio-1586.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
JEFFREY KING,
PLAINTIFF-APPELLEE, CASE NO. 14-11-23
v.
AMBER KING, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Domestic Relations Division
Trial Court No. 09-DR-0211
Judgment Affirmed
Date of Decision: April 9, 2012
APPEARANCES:
Alison Boggs for Appellant
James Roeder for Appellee
Case No. 14-11-23
PRESTON, J.
{¶1} Defendant-appellant, Amber King (“Amber”), appeals the Union
County Court of Common Pleas, Domestic Relations Division’s decision
designating plaintiff-appellee, Jeff King (“Jeff”) the residential parent for purposes
of their child’s school placement. For the reasons that follow, we affirm.
{¶2} Jeff and Amber were married on May 13, 2006. (Doc. No. 2). S.K.,
the only child of the marriage, was born on March 16, 2007. (Doc. No. 36). Jeff
and Amber divorced on January 21, 2010. (Id.). The parties entered into a shared
parenting plan on that same day. (Doc. No. 37). The shared parenting plan stated:
As [S.K.] is not yet school age, each party is designated primary
residential parent while [S.K.] is in their physical possession. When
[S.K.] reaches school age the parties will agree to designate one or
the other as a primary residential parent for school placement
purposes in accordance with the parties’ mutual decision as to the
school that they wish [S.K.] to attend. (Id.).
{¶3} On April 1, 2011, Jeff filed a motion requesting that the domestic
relations court designate him the residential parent for purposes of S.K.’s school
placement because the parties had been unable to reach an agreement on the issue.
(Doc. No. 41). If Jeff were designated the residential parent, S.K. would attend
school in North Union, Ohio. (Id.). On May 23, 2011, Amber filed a motion
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requesting that the domestic relations court designate her, rather than Jeff, the
residential parent for purposes of S.K.’s school placement. (Doc. No. 53). If
Amber were designated the residential parent, S.K. would attend school in
Marysville, Ohio. (Id.).
{¶4} On August 17, 2011, a domestic relations court magistrate held a
hearing on the motions. (Tr. at 4). The magistrate designated Jeff the residential
parent for purposes of S.K.’s school placement. (Doc. No. 62).
{¶5} On September 2, 2011, Amber filed objections to the magistrate’s
decision. (Doc. No. 66). On September 15, 2011, Jeff filed his response to
Amber’s objections. (Doc. No. 67). On September 23, 2011, the domestic
relations court approved and adopted the magistrate’s decision. (Doc. No. 68).
The domestic relations court issued a judgment entry designating Jeff the
residential parent for purposes of S.K.’s school placement on September 30, 2011.
(Doc. No. 69).
{¶6} On October 31, 2011, Amber filed a notice of appeal and now raises
one assignment of error for our review.1
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DESIGNATED APPELLEE THE RESIDENTIAL PARENT
FOR SCHOOL PLACEMENT PURPOSES
1
The end of the 30 day time period for filing a notice of appeal fell on Sunday, October 30, 2011. Under
App.R. 14, Amber was permitted to file her notice of appeal on Monday, October 31, 2011.
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{¶7} In her sole assignment of error, Amber argues the domestic relations
court abused its discretion when it designated Jeff as the residential parent for
purposes of S.K.’s school placement. Amber contends the magistrate failed to
consider that designating Amber as the residential parent would permit S.K. to
attend school in Marysville, where both Amber and Jeff work. Amber argues that
if S.K. attended school in Marysville, she would be closer to both of her parents
while she was at school. Amber contends that S.K.’s proximity to her parents
during the school day would be in her best interest because it would better enable
her parents to participate in school functions and address emergencies, should they
arise.
{¶8} When making a determination regarding parental rights, the domestic
relations court must follow statutory guidelines. Miller v. Miller, 37 Ohio St.3d 71,
74 (1988). “Revised Code 3109.04 governs court awards of parental rights and
responsibilities, as well as the modification of shared parenting agreements.”
Ralston v. Ralston, 3d Dist. No. 9-08-30, 2009-Ohio-679, ¶ 16. This Court has
previously determined that R.C. 3109.04(E)(2)(b) applies when the domestic
relations court modifies the designation of a residential parent for school purposes,
but otherwise maintains both parents as residential parents with the same parental
rights and responsibilities. Id. at ¶ 17. R.C. 3109.04(E)(2)(b) provides:
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The court may modify the terms of the plan for shared parenting
approved by the court and incorporated by it into the shared
parenting decree upon its own motion at any time if the court
determines that the modifications are in the best interest of the
children or upon the request of one or both of the parents under the
decree. Modifications under this division may be made at any time.
The court shall not make any modification to the plan under this
division, unless the modification is in the best interest of the
children.
When determining the child’s best interest, the domestic relations court should
also consider the factors included in R.C. 3901.04(F)(1), which include:
(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
(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;
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(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 an act that resulted in a child being an
abused 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.
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{¶9} This Court reviews a domestic relations court’s decision regarding
parental rights for an abuse of discretion. Ralston at ¶ 13, citing Davis v.
Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260. An abuse of discretion suggests
the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “The reason for this standard of
review is that the trial judge has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on
the written page.” Davis at 418. The Supreme Court of Ohio has stated that this
standard “is even more crucial in a child custody case.” Id. at 419.
{¶10} In the present case, the domestic relations court designated Jeff the
residential parent for purposes of school placement. (Doc. No. 62). The magistrate
stated that “[t]here is nothing wrong with the proposal of either parent. Both are
workable and have merit.” (Id.). However, the magistrate designated Jeff as the
residential parent because placing S.K. with Amber relied on the availability of
Amber’s mother to assist with transportation. (Id.). The magistrate determined
that Jeff “proposes a routine that has fewer variable [sic] and offers the promise of
greater long range continuity.” (Id.). Consequently, the magistrate decided
designating Jeff the residential parent was in S.K.’s best interest. (Id.). Pursuant to
Civ. R. 53(D)(3)(d), the domestic relations court was then required to “undertake
an independent review as to the objected matters to ascertain that the magistrate
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has properly determined the factual issues and appropriately applied the law” in
response to Amber’s objections. The domestic relations court ultimately approved
and adopted the magistrate’s decision. (Doc. Nos. 68-69).
{¶11} During the hearing, the parties presented limited evidence that
mainly focused on how attending each school would affect S.K.’s daily routine.
(Tr. at 7-42). Jeff testified that he owns a home in Raymond, Ohio, which is in the
North Union School District. (Id. at 8, 12). Jeff works from 8 a.m. to 4:30 p.m. on
Monday through Friday. (Id. at 10). However, Jeff would leave work at 4 p.m.
rather than 4:30 p.m. once S.K. begins school so he can be home when she arrives.
(Id.); (Plaintiff’s Ex. 1). Jeff did not foresee any other future changes in his
employment or shift hours. (Tr. at 17).
{¶12} On weekdays, Jeff has parenting time with S.K. from the time he
leaves work in the evening until he takes her to Amber’s home on his way to work
the following morning. (Id. at 9). Jeff testified that if he were designated the
residential parent, S.K. would attend school at North Union where her school day
would begin at 9 a.m. and end at 3:45 p.m. (Id. at 13). On his way to work, Jeff
could either drop S.K. off at North Union’s latchkey program or take her to
Amber’s apartment and Amber could drop S.K. off at school. (Id.). At the end of
the school day, S.K. would take the bus to Jeff’s home and Jeff would be waiting
for her at home when she arrived. (Id. at 14). Jeff felt the situation was
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unfortunate because Amber’s work schedule would prevent her from spending as
much time with S.K. once S.K. was in school. (Id. at 18). Jeff testified that he
would be willing to amend the parenting plan in the future to permit Amber to
spend more time with S.K. during periods when S.K. did not have school, such as
in the summer. (Id. at 18). However, Jeff felt it would be in S.K.’s best interest to
attend school in North Union because she has been a North Union resident for her
entire life. (Id. at 19). Furthermore, Jeff has parenting time with S.K. during the
school week except for when he is at work, so North Union is where S.K. sleeps
every night and awakes every morning. (Id.). Jeff testified that S.K. is integrated
into his neighborhood and the community, and it would be a natural location for
her to attend school activities. (Id.).
{¶13} Jeff testified that he had concerns about Amber’s proposal because
he wanted S.K. to have a normal school day and “be like all the other kids.” (Id. at
14). Jeff felt that Amber’s plan, which would require Amber to pick up S.K. from
school, take S.K. to her grandmother and then have her grandmother drive S.K. to
Jeff’s work where Jeff would then drive her home, was not “normal.” (Id). Jeff
also testified that he was concerned about the stability of Amber’s proposal
because Amber is considering purchasing a home, and it is possible the home
would be located in North Union rather than Marysville. (Id.). Jeff testified that
the school Amber proposes in Marysville is 17 miles from his home whereas the
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school in North Union is 11 miles from his home. (Id. at 15-16). Jeff testified that
he was not concerned with the mileage when determining which school S.K.
should attend, but was more interested in creating “less shuffling around” for S.K.
(Id. at 25-29).
{¶14} Amber testified that she currently lives in Marysville, Ohio and that
S.K. would attend Marysville Schools if Amber were designated the residential
parent for school placement purposes. (Id. at 30, 34). Amber has parenting time
with S.K. beginning at 7:30 a.m. on weekdays, when Jeff drops S.K. off on his
way to work. (Id. at 32). Amber testified that “[w]e have breakfast, play, I bathe
her, we do lunch, and sometimes naps, play some more, and then it’s time to go to
work.” (Id.). Amber then drives S.K. to S.K.’s grandmother, who is near Amber’s
work, at 4 p.m. because Amber has to be at work at 4:30 p.m. (Id.). S.K.’s
grandmother then drives S.K. to Jeff’s work. (Id.). Amber testified that this has
been the arrangement since S.K. was born, which was while Jeff and Amber were
still married. (Id. at 32-33). Amber testified that the routine is a little different on
Friday afternoons because Amber has to be at work an hour earlier. (Id. at 33).
Jeff has every other Friday off from work, so Amber takes S.K. to Jeff’s house
before going to work on those Fridays. On the Fridays when Jeff does have to
work, Amber takes S.K. to a Marysville babysitter that they have used since S.K.
was an infant. (Id.).
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{¶15} Amber further testified that if S.K. went to Marysville Schools, her
school day would begin at 9 a.m. and end at 3:30 p.m. (Id. at 35). Amber would
pick S.K. up from school, take S.K. to her grandmother, and her grandmother
would take S.K. to Jeff, continuing with the same afternoon routine. (Id. at 35).
Amber testified that if Jeff changed his work schedule to end at 4 p.m., then
Amber could take S.K. directly to Jeff’s work at 4 p.m. (Id. at 36). Amber
testified that she believed the Marysville Schools had a latchkey program and Jeff
could pick S.K. up from school after work if Amber were unable to pick S.K. up
after school. (Id.). In the mornings, Jeff would continue to drop S.K. off at
Amber’s home at 7:30 a.m. and Amber would prepare her for school. (Id.).
{¶16} Amber testified that she took issue with Jeff’s proposal because the
North Union Schools are 24 minutes from her home (Id. at 38). Amber would like
to become involved in S.K.’s school by participating in field trips and helping in
the classroom. (Id.). Amber expressed concern that if S.K. attended the North
Union Schools, it would be more difficult for Amber to attend these events due to
her work schedule. (Id. at 39). Amber felt it would be in S.K.’s best interest to
attend the Marysville Schools because both of her parents are in Marysville during
the day, so they can respond quickly if there were an emergency. (Id.). Amber
also testified that Jeff finishes work for the day around the time that S.K. finishes
school, so Amber believed S.K. would still be able to participate in school
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activities at the Marysville Schools since Jeff would already be in the area. (Id. at
40).
{¶17} Amber argues the domestic relations court abused its discretion by
designating Jeff the residential parent for purposes of school placement because its
decision in the present case is inconsistent with its prior decision in Fischer v.
Fischer, 09-DR-0096 (2010). We disagree. In Fischer, the domestic relations
court rejected the father’s proposed shared parenting plan for a number of reasons.
The parties lived 35 to 40 minutes apart, and the father proposed a plan that would
place the child with each parent on alternating weeks. (Id.). The child would
attend a school that was located between the parents’ homes. (Id.). The domestic
relations court determined this plan was not in the best interest of the child
because it would require the child to spend at least an hour each day commuting to
and from school regardless of where the child was staying for that week. (Id.).
Based on the age and financial condition of the parents, the domestic relations
court was concerned that the parents would be unable to afford the cost of
operating and maintaining the vehicles, and was also concerned about the safety
and reliability of their respective vehicles given the commute. (Id.). The domestic
relations court also stated that the child would have less access to playmates and
school activities because both parents lived at a considerable distance from the
school. (Id.). The parties presented evidence that the child had medical issues, so
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the domestic relations court was concerned about the time it would take the
parents to arrive at the school in the case of an emergency. (Id.). Finally, the
domestic relations court felt the alternating schedule would be too disruptive for
the child’s schedule and routine. (Id.).
{¶18} Amber argues that based on this case, the domestic relations court
abused its discretion in not designating her the residential parent for purposes of
school placement because of the distance of the North Union Schools to the
parents during the day. Amber argues that she will have a 24 minute commute to
the North Union School with S.K. each morning versus a much shorter commute
to the Marysville School located near her home. Amber also contends that since
both parents work in Marysville, S.K. will be much closer to them in the case of
an emergency if she attends the Marysville Schools. However, unlike in Fischer,
the parties in the current case did not present any evidence that the commute to
North Union Schools would be prohibitively costly given their financial condition
or unsafe based on their vehicles. The parties did not present any evidence that
S.K. has medical issues requiring her parents to be close to her during the day.
Furthermore, Jeff resides near the North Union Schools, so S.K. will have access
to playmates and activities. Finally, S.K.’s schedule will be consistent on a daily
basis. Thus, the present case does not involve the same factors as Fischer, and we
cannot find that the domestic relations court abused its discretion.
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{¶19} Amber also relies on this Court’s decision in Ralston v. Ralston,
arguing that this Court should reverse the domestic relations court’s decision and
designate Amber the residential parent because it would maximize S.K.’s time
with each of her parents. 2009-Ohio-679. Amber contends that designating Jeff
the residential parent and placing S.K. in North Union Schools will reduce the
time Amber spends with S.K. and is not in S.K.’s best interest.
{¶20} Our decision in this case is consistent with our prior opinion. In
Ralston, we affirmed the domestic relations court’s designation of the father as the
residential parent for school placement purposes. Id. at ¶ 25. In that case, the
father was a police officer who worked ten-hour day shifts Friday through
Monday. Id. at ¶ 5. If the mother were named the residential parent for purposes
of school placement, the father would only see the child on weekend evenings
after he returned from work. Id. at ¶ 20. The mother worked a more traditional
schedule and was available on weekday evenings as well as the weekend. Id. at ¶
6. Thus, designating the father as the residential parent for school purposes would
permit the child to have “frequent contact with both parents” because the child
would spend time with the father during the week and the mother on the weekend.
Id. at ¶ 20. In the present case, Amber and Jeff will continue to have frequent
contact with S.K. if Jeff is designated the residential parent for school placement
purposes. Amber will continue to have parenting time with S.K. in the morning
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and on weekends, and Jeff will continue to have parenting time with her in the
evening and on weekends. (Doc. No. 62). Thus, we cannot find that the domestic
relations court abused its discretion based on our decision in Ralston.
{¶21} We also cannot find that the domestic relations court abused its
discretion by adopting the magistrate’s decision and designating Jeff the
residential parent for purposes of school placement based on the evidence. (Doc.
Nos. 68-69). The evidence presented at the hearing demonstrated that either
parent’s proposal is feasible. However, we agree with the domestic relations court
that designating Jeff the residential parent for purposes of school placement is in
S.K.’s best interest because it results in greater long term stability. S.K.’s routine
will be the same every day if she attends North Union Schools. (Tr. at 8-14). Jeff
will drive S.K. to Amber’s home in the morning, Amber will prepare her for
school, Amber will then transport her to school, S.K. will take the bus to Jeff’s
house at the end of the day, and Jeff will be at home when she arrives. (Id.). This
arrangement eliminates the need for third parties such as S.K.’s grandmother or
the Marysville baby-sitter, who may not be available in the future. It also
simplifies the schedule so S.K. will know what to expect each day. Jeff testified
that he intends to remain in North Union, so S.K. will remain in the same school
district and have stability throughout grade school and high school. (Tr. at 17).
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Moreover, Amber testified that she would like to purchase a home. (Tr. at 40). It
is possible that her new location would reduce the travel time to S.K.’s school.
{¶22} Additionally, S.K. has ties with the community in North Union. S.K.
has resided in that area since she was born. (Tr. at 19). Jeff still lives in the
marital home he shared with Amber. (Id.). Thus, S.K. goes to sleep in North
Union District each night and awakes in North Union District each morning. (Id.).
Attending North Union Schools will result in S.K. having friends and school
activities in the area where she will spend most of her school week. (Id.).
Consequently, we cannot find that the domestic relations court abused its
discretion by adopting the magistrate’s decision.
{¶23} Amber’s assignment of error is, therefore, overruled.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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