Mogg v. McCloskey , 2013 Ohio 4358 ( 2013 )

[Cite as Mogg v. McCloskey, 2013-Ohio-4358.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
LAURA MOGG ) CASE NO. 12 MA 24
)
PLAINTIFF-APPELLEE )
CROSS-APPELLANT )
)
VS. ) OPINION
)
RANDY McCLOSKEY )
)
DEFENDANT-APPELLANT )
CROSS-APPELLEE )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, of
Mahoning County, Ohio
Case No. 08 DR 613
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee/Cross-Appellant: Atty. Louis Katz
70 West McKinley Way
Poland, Ohio 44514
For Defendant-Appellant/Cross-Appellee: Atty. Christopher P. Lacich
Atty. David S. Barbee
Roth, Blair, Roberts, Strasfeld & Lodge
100 Federal Plaza East, Suite 600
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 30, 2013
[Cite as Mogg v. McCloskey, 2013-Ohio-4358.]
WAITE, J.
{¶1} This matter comes to us on appeal from the trial court’s decision to
terminate shared parenting. Father, Randy McCloskey, Appellant and Cross-
Appellee, filed a motion seeking to be named residential parent for schooling
purposes. Mother, Laura Mogg, Appellee and Cross-Appellant, opposed father’s
motion and filed a motion to terminate shared parenting. Father now appeals the trial
court’s decision denying his motion and granting mother’s motions. Mother, in her
cross-appeal, challenges the trial court’s decision to grant more than the minimum
amount of parenting time to father and appeals the deviation ordered by the trial
court from the presumed child support amount.
{¶2} Although ample material appears in the record to support the trial
court’s decision to terminate shared parenting, the trial court did not make the
necessary findings or adopt and incorporate the magistrate’s findings in its final
order. Similarly, the magistrate made specific findings concerning parenting time, but
the trial court did not adopt or incorporate those findings. Nor did the court make the
necessary determination that its decision regarding parenting time is in the best
interest of the child. Unlike the state of the record as to termination of shared
parenting, the support ruling challenged by mother in her cross-appeal does not
appear to be supported by appropriate evidence of record. For these reasons, the
trial court’s decision is reversed in its entirety and the matter is remanded for further
proceedings.
Factual and Procedural History
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{¶3} Mother and father were married on February 10, 2001. A single minor
child R.M., was born of the marriage on July 27, 2003. The parties’ marriage was
dissolved by decree on December 23, 2008. The decree of dissolution incorporated
a shared parenting plan negotiated by the parties which was adopted by the court.
Under the shared parenting plan, mother was designated as the residential parent for
school purposes. As a result, R.M. attended Canfield Schools. At the time of
dissolution and for several years after, mother, R.M. and at least two other children
lived with mother’s parents in Canfield. The shared parenting plan divided parenting
time equally between father and mother on an alternating weekly schedule. The
parties initially agreed to a child support amount far less than the presumptively
correct amount prescribed by the statutory worksheet, and later reduced it even
further by agreement.
{¶4} In March of 2011, father was preparing to pick up R.M. for a mid-week
visit. Shortly before, mother notified father that she and R.M. had moved and gave
him the new address. Father also learned that due to the move mother had
withdrawn R.M. from the Canfield school system. Father initially believed that R.M.
would be attending Youngstown schools, but later learned that mother had enrolled
R.M. in Austintown, which has open enrollment, is near mother’s new home, and is a
“blue ribbon” school.
{¶5} Father filed a motion for modification of parental rights and
responsibilities but did not seek any other change in the existing shared parenting
plan. Father asked to be designated R.M.’s residential parent for schooling
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purposes, so that he could place R.M. in the Jackson-Milton school system. Mother,
however, asked the court to terminate shared parenting. She sought to have the
court designate her as the residential parent for R.M. and address child support,
health care coverage, and the allocation of the dependent child income tax
exemption. Mother’s motion for reallocation of parental rights did not address
parenting time. The parties were unable to resolve the matter in mediation and a
guardian ad litem was appointed for R.M.
{¶6} Mother testified that R.M. spends the majority of the child’s afterschool
time with the paternal grandparents, not with father, when she is available to care for
R.M. after school. Mother takes care of the large majority of R.M.’s medical and
school-related needs and is extremely involved in R.M.’s education. Father, on the
other hand “feels that it is [R.M.’s] teachers’ job to educate [R.M.], and that it is not
generally a parent’s responsibility to educate their children.” He does not verify
whether R.M. has completed homework when R.M. stays at his house. (10/7/11
Magistrate’s Dec., ¶32.) R.M. sometimes turns in incomplete assignments that were
to be completed during father’s parenting time. (10/7/11 Magistrate’s Dec., ¶32).
Father has disappointed and upset R.M. by not attending school functions.
{¶7} The magistrate found that father was intentionally uncooperative,
uncommunicative, and disdainful of mother. The magistrate concluded that father did
not understand the importance of communication, cooperation, and flexibility
regarding the parenting schedule, and belittled or ignored mother in R.M.’s presence.
(10/7/11 Magistrate’s Dec., ¶30.) Father regularly refused to communicate verbally
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with mother; evidence of this behavior included his failure to explain the presence of
a new medication with R.M.’s things when asked. (10/7/11 Magistrate’s Dec., ¶25.)
Father denigrated mother and R.M.’s Catholic faith. Father’s openly negative attitude
toward mother was demonstrated by tombstone-style signs he decorated his yard
with at Halloween aimed at mother and which he admitted to the guardian ad litem
were inappropriate. Father apparently discouraged (or never encouraged) R.M. from
purchasing gifts for mother on holidays.
{¶8} The guardian ad litem acknowledged that father needed to change his
pattern of interaction with mother and adjust his behavior to foster a positive
relationship between R.M. and mother and that the parties had, to date, failed to
cooperate and engage in joint decision making. The guardian noted that mother,
unlike father, did foster “the sharing of love, affection, and contact between the minor
child and the other parent.” (10/7/11 Magistrate’s Dec., ¶53.) The guardian ad litem
nevertheless recommended that the parties continue under the shared parenting plan
and that father be designated the residential parent for schooling purposes. The
guardian ad litem specifically based his recommendation on the belief that, in the
future, the parties would be able to cooperate and make joint decisions despite the
fact that he recognized that no joint decision making or cooperation had occurred to
date.
{¶9} The magistrate’s decision includes eighty-seven findings of fact and
extensive references to testimony, and explicitly addresses the statutory factors
contained in R.C. 3109.04(E)(2)(c), (F)(1), and (F)(2). The magistrate noted that
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father’s intentionally uncooperative behavior had continued since the marriage
dissolved, found father’s behavior appalling, and emphasized that “stubbornly
refus[ing] to cooperate in virtually any way” was causing harm to R.M. that father
would not acknowledge. (10/7/11 Magistrate’s Dec., ¶63.) The magistrate
concluded: “Frankly, it is hard to imagine a situation where parents would be less
able to cooperate and make joint decisions, except for a case involving domestic
violence.” (10/7/11 Magistrate’s Dec., ¶70.)
{¶10} The magistrate and the court did not rely on the guardian ad litem’s
opinion and instead focused on the fact that, although the parties shared equal time
with R.M., they had not at any time engaged in true shared parenting. The
magistrate ultimately stated:
* * * it would be in the best interest of the minor child for shared
parenting to be terminated. The parties cannot cooperate and make
joint decisions. [Mother] has the ability to encourage the sharing of
love, affection, and contact between [R.M.] and [father], however
[father], while being capable of following the parenting time schedule to
the minute, does not currently have the ability to encourage the sharing
of love and affection between [R.M.] and [mother]. The parties to this
case are simply and totally unable to communicate, cooperate and
make joint decisions. They cannot even discuss [R.M.]’s prescribed
medication. They do not amicably exchange [R.M.]’s clothing and other
personal property on a regular basis. They cannot work out even minor
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changes to the parenting time schedule. They cannot agree on
religious issues regarding their [child].
(10/7/11 Magistrate’s Dec., ¶70.) The magistrate decided that it would be in the best
interest of R.M. for shared parenting to be terminated and designated mother the
residential parent.
{¶11} Having made findings on each of the sixteen points included in R.C.
3109.051, the magistrate ordered father be granted parenting time according to the
following schedule:
[D]uring the school year, every other weekend, from Friday at 6:00 p.m.
through Tuesday morning when he shall be responsible for transporting
the minor child to school. On the Wednesday prior to his weekend
parenting time, [father] shall be entitled to parenting time from 5:00 p.m.
to 8:00 p.m. On the Thursday following his weekend of parenting time,
[father] shall be entitled to parenting time from 5:00 p.m. until 8:00 p.m.
During the summer months, the parties shall follow the schedule
contained in the Local Parenting Time Schedule[.] * * * For holidays and
other days of special importance, each party shall be entitled to
parenting time in accordance with the Local Parenting Time Schedule
attached as Exhibit A which is incorporated as if fully rewritten herein.
(Emphasis sic.)
(10/7/11 Magistrate’s Dec., ¶79.) In the original shared parenting plan, the parties
split time with R.M. weekly from Sunday at 6 p.m. to Sunday at 6 p.m. with mid-week
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parenting for each parent when R.M. stayed with the other on Wednesday from 4
p.m. to 8 p.m. The parties followed the local parenting time schedule for “holidays
and vacations other than summer vacation.” (12/23/08 Shared Parenting Plan,
Article 3 and 4.) The local parenting time schedule for summer vacation is the same
schedule the parties already used.
{¶12} The parenting time schedule ordered by the magistrate gave father
approximately 1.5 additional days, every other week, during the school year than the
standard award. However, his parenting time mid-week was reduced by one hour,
year round, and the time father spent with R.M. every other week during the school
year was reduced, to three full twenty-four hour periods and 6 p.m. Monday until he
drops R.M. off for school Tuesday morning (approximately an additional half day).
The magistrate found that additional parenting time with father was in R.M.’s best
interest, because R.M. was accustomed to spending almost equal time with both
parents and had good relationships with both parents. (10/7/11 Magistrate’s Dec.,
¶80.)
{¶13} Mother also requested a modification of child support, provisions for
health insurance coverage, and the allocation of the depending child tax exemption.
The magistrate found that mother had an annual gross income of $46,751.00 from
Youngstown City Schools, pays $750.00 per year in union dues, and provides health
insurance for R.M. at a cost of $744.00 per year. The magistrate found father’s
income to be $47,000.00 with union dues of $2,200.00 per year and insurance for
R.M. at no cost. Under the Ohio Child Support Guidelines, R.C. 3119.02, father’s
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presumptively correct child support obligation would be $5,688.18 per year
(approximately $474 a month without a processing fee). Under the shared parenting
plan the parties had waived the child support calculation and instead father paid an
agreed amount of $150 per month. This original amount was later reduced by the
court to $100 per month in June, 2010, when a motion for reduction filed by father
was granted. Although the presumptively correct amount in 2012 was $5,688.18, the
magistrate recommended a 40% reduction in the support award “based on the
parenting time schedule.” (10/7/11 Magistrate’s Dec., ¶84.) With this deviation, the
monthly amount of support awarded by the court was $284.14 ($290.10 total with the
processing fee). Although the worksheet computation was attached as Exhibit B to
the magistrate’s decision, no evidence in support was taken and no rationale for the
amount of the deviation was provided by the magistrate. The magistrate awarded
mother the tax dependent child exemption. (10/7/11 Magistrate’s Dec., ¶85-87.)
{¶14} Both father and mother filed timely objections to the magistrate’s
decision. Father challenged a number of findings and sought to reinstate shared
parenting but have the decision modified to name him residential parent for
schooling. Mother’s objections challenged both the magistrate’s decision to allocate
parenting time beyond the standard local schedule and the deviation ordered by the
magistrate from the presumptively correct support amount.
{¶15} The trial court’s judgment entry addressed each of the parties’
objections, found the large majority of father’s factual objections untimely, unfounded,
and/or meritless and the remainder of father’s objections harmless. While father
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attempted to attach new evidence to his objections, the trial court did not consider
this evidence because it was material that would have been available, “with
reasonable diligence,” at the time of the hearing. (1/17/12 J.E., pp. 8-9.) The trial
court also rejected mother’s objection to the parenting time schedule and to the
deviation from the presumptively correct support calculation. The court explained
that a reduction in support was appropriate due to father’s increase in parenting time
over the local schedule, the similarity in the parties’ incomes, and the significantly
lower support mother originally agreed to in the shared parenting agreement
executed when the parties had a greater disparity in income. No discussion of the
best interest of the child appears in the court’s decision.
{¶16} The court rejected mother’s concerns regarding father’s vacation
schedule and stated that if father did not comply with the schedule, mother’s remedy
was to seek a contempt order. The court rejected mother’s factual objections
concerning the magistrate’s findings as harmless error.
{¶17} The trial court issued a judgment entry denying both parties’ objections
to the magistrate’s decision and terminating shared parenting. The trial court
restated and adopted the rulings in the magistrate’s decision. The trial court did not
include its own factual findings concerning these orders, did not make any findings
concerning the best interest of the child, and did not specifically adopt or incorporate
the factual findings made by the magistrate.
{¶18} Father filed a timely appeal of the trial court’s order. Mother filed a
timely cross-appeal of the same entry.
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Assignment of Error
The trial court erred and abused its discretion by disregarding relevant
evidence and statutory factors; by placing little or no weight on
Appellee’s improper conduct; by disregarding the Guardian Ad Litem’s
recommendation, and by terminating the parties’ shared parenting plan
{¶19} A trial court’s ruling on a motion to terminate a shared parenting
agreement is reviewed for an abuse of discretion. Kougher v. Kougher, 194 Ohio
App.3d 703, 2011-Ohio-6411, 957 N.E.2d 703 (7th Dist.). Abuse of discretion
connotes more than an error of law or of judgment; it implies that the court's attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the abuse of discretion
standard, a reviewing court is not free to merely substitute its judgment for that of the
trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
“The term discretion itself involves the idea of choice, of an exercise of the will, of a
determination made between competing considerations. In order to have an ‘abuse’
in reaching such determination, the result must be so palpably and grossly violative
of fact and logic that it evidences not the exercise of will but perversity of will, not the
exercise of judgment but defiance thereof, not the exercise of reason but rather of
passion or bias.” Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248, 1252 (1985).
{¶20} The decision to terminate a shared parenting plan is governed by R.C.
3109.04(E)(2)(c) and must, in every instance, be made in the best interest of the
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child. Under R.C. 3109.04(E)(2)(c) “[t]he court may terminate a prior final shared
parenting decree that includes a shared parenting plan * * * whenever it determines
that shared parenting is not in the best interest of the child.” If a court terminates
shared parenting, “the court shall proceed and issue a modified decree for the
allocation of parental rights and responsibilities for the care of the child * * * 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). A court is not required to
find a change in circumstances before deciding to terminate a shared parenting plan.
Rather, the decision to terminate the plan may be made by the court sua sponte at
any point when the court determines it is no longer in the best interest of the child.
Kougher, supra.
{¶21} A decision to allocate parental rights after the termination of shared
parenting is governed by the same sections that control an original decision, R.C.
3109.04(A), (B), and (C). Under these sections the court “shall allocate the parental
rights and responsibilities for the care of the children primarily to one of the parents,
designate that parent as the residential parent, and the legal custodian of the child,
and divide between the parents the other rights and responsibilities for the care of the
children, including, but not limited to, the responsibility to provide support for the
children and the right of the parent who is not the residential parent to have
continuing contact with the children.” R.C. 3109.04(A)(1). When determining the
best interest of the child with regard to an allocation of parental rights “the court shall
consider all relevant factors, including, but not limited to:”
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(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 * * * 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
***
(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 * * *
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(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.
R.C. 3109.04(F)(1). In addition to the above and “all relevant factors,” when
determining whether shared parenting (or in this instance, continued shared
parenting) is in the best interest of the child, the court “shall also consider * * * all of
the following factors:”
(a) The ability of the parents to cooperate and make decisions jointly,
with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
R.C. 3109.04(F)(2).
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{¶22} The magistrate’s decision directly addresses each of the statutory
factors concerning the termination of shared parenting. The trial court’s judgment
entry, however, does not include any findings or address the statutory factors. The
trial court’s decision does not reference, specifically incorporate, or attach the factual
findings made by the magistrate. The trial court addresses only those factual
determinations in the magistrate’s decision to the extent necessary to address the
parties’ objections. As to father’s objections, the trial court implicitly accepts the
magistrate’s findings on each point and overrules father’s objections. All of father’s
arguments on appeal are substantial restatements of objections made to the
magistrate’s decision that were overruled by the trial court in its final entry.
{¶23} Father’s belief that the trial court should have adopted in total the
recommendation of the guardian ad litem mistakes the role of the guardian’s report in
combination with the other factors the court must weigh and consider under R.C.
3109.04(F)(1) and (2):
The role of the trial court is to act as the fact finder and to exercise
independent judgment in determining the best interests of the children.
A trial court may not simply adopt the conclusion of a guardian ad litem
without further inquiry into the children’s best interest; rather, the court
must consider all available evidence. The report of a guardian ad litem
is merely an aid to the trial court and but one factor the court must
consider when allocating parental rights and responsibilities.
(Emphasis sic.) (Internal citations omitted.)
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Collins v. Collins, 12th Dist. No. 2009-09-023, 2001 WL 1218900, *3 (October 15,
2001). Father has not identified a defect in the law applied nor does he dispute the
facts. Instead, he contends that the court should have reached a different conclusion
in weighing these facts. Father believes that mother’s decision to abruptly move
without permission of the court was a severe enough transgression that she should
be punished for this action by automatically losing her status as residential parent.
Father’s emphasis on mother’s decision to move is misplaced. A court’s custody
decision may not be punitive and a court making a custody determination does not
decide which parent should be punished for prior behavior. The court is required to
evaluate each parent’s ability to cooperate and place the child’s interest above their
own feelings in a parenting context. In this instance the magistrate found that a
move of insignificant distance, even though not pre-approved by the court, was not
dispositive in its evaluation.
{¶24} The evidence in the record demonstrates that although father rigidly
adhered to a single aspect of the shared parenting plan, the parenting time schedule,
he completely ignored all other aspects of “shared” parenting, including his essential
responsibilities to foster a positive relationship between R.M. and mother, engage
with mother in the joint decision making, and abide by the decisions concerning
R.M.’s religious education that were made during the marriage. The trial court
indicates in paragraphs 2 and 3, 5–10, 12, and 13 of the final judgment entry that it
shares the magistrate’s conclusion that the parties have demonstrated a complete
inability to engage in shared parenting. The trial court concludes:
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The overwhelming evidence in this case is that [father] does not have
the present ability to communicate with [mother]. He does not have the
present ability to cooperate with [mother]. He does not have the
present ability to make joint decisions that affect the child’s best interest
with [mother]. While [father] started counseling during the pendency of
this action to help remedy some of these issues, the fact remains that
he does not have the present ability at this time. Therefore, the Court
finds no error with the Magistrate terminating the parties’ shared
parenting plan and designating [mother] as residential parent.
(1/17/12 J.E., pp. 11-12.) In overruling father’s objections concerning the termination
of shared parenting and designation of mother as residential parent, the trial court
cited Bechara v. Essad, 7th Dist. No. 03 MA 34, 2004-Ohio-3042 for the principle that
shared parenting is only in the child’s best interest “if there is a successful shared
parenting arrangement. ‘Successful shared parenting requires at least two things.
One is a strong commitment to cooperate. The other is a capacity to engage in the
cooperation required.’” (1/17/12 J.E., p. 11.) In this instance, as in Bechara, there
appears to be competent, credible evidence that supports a conclusion that shared
parenting is not in the best interest of R.M.
{¶25} The magistrate’s decision and the trial court’s judgment entry, taken
together, reflect that the applicable law was applied to the relevant facts before
shared parenting was terminated and mother designated the residential parent. The
trial court’s judgment entry, however, does not contain all of the necessary
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determinations. It is the trial court’s own ruling, not the magistrate’s opinion on a
motion to terminate shared parenting, that must comply with the requirements of R.C.
3109. The court must itself consider the listed factors, in addition to all other relevant
factors, and conclude on the record whether termination is in the best interest of the
child. What the trial court did in this instance was conduct a thorough review and
analysis of the objections to the magistrate’s decision that implicitly reflects that the
trial court agrees with the magistrate’s findings of fact and conclusions of law,
findings and conclusions that we note are amply supported by the evidence in the
record. The trial court entered a decision that disposes of all motions, terminates
shared parenting, and designates mother the residential parent, but omits the trial
court’s essential independent determination that, having considered the relevant
evidence and all statutory factors, ending shared parenting is in the best interest of
the child. While this conclusion may be inferred from the trial court’s decision of the
objections, the omission of the trial court’s own findings and ruling as to the best
interest factors renders what is otherwise an extremely thorough entry incomplete.
{¶26} It is axiomatic that “[j]udgments that simply deal with the objections and
adopt a magistrate’s decision are not final judgments because they only address
whether the decision should be adopted. They do not inform the parties of the trial
court’s own judgment in the matter they have placed before it.” (Citation omitted.) In
re Dayton, 7th Dist. No. 02 JE 20, 2003-Ohio-1240, ¶9. The trial court’s decision that
the magistrate did not err in deciding that shared parenting should be terminated is
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not a substitute for the trial court’s entry of final judgment that contains the necessary
factual findings and best interest determination on the issue.
{¶27} Hence, while Appellant’s assignment of error otherwise appears to be
without merit, we must reverse the decision of the trial court for entry of an order that
includes the trial court’s judgment as to the best interest of the child with regard to the
termination of shared parenting and the designation of a residential parent in
compliance with R.C. 3109.04 and/or the trial court’s decision to adopt and
incorporate the magistrate’s findings on this issue.
{¶28} Turning to the cross-appeal, mother identifies five assignments of error
which raises two issues. Four of the five assignments of error address child support;
the remaining assignment concerns parenting time. Mother’s fifth cross-assignment
of error will be discussed first out of order. Her remaining four cross-assignments will
be considered together.
Cross- Assignment of Error V
WHEN THERE WAS NEVER A REQUEST FOR ADDITIONAL
PARENTING TIME TO THAT PROVIDED FOR IN THE LOCAL
PARENTING TIME SCHEDULE NOR ANY EVIDENCE PRESENTED
REGARDING ADDITIONAL PARENTING TIME THEN THE TRIAL
COURT ERRED AS A MATTER OF LAW IN GRANTING FATHER
ADDITIONAL PARENTING TIME.
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{¶29} Where there is no shared parenting decree, or shared parenting has
been terminated, a trial court’s decision to grant parenting time is governed by R.C.
3109.051. Part (A) of that section charges the court to:
[issue a] just and reasonable order or decree permitting each parent
who is not the residential parent to have parenting time with the child * *
* . Whenever possible, the order or decree permitting the parenting
time shall ensure the opportunity for both parents to have frequent and
continuing contact with the child, unless frequent and continuing contact
by either parent with the child would not be in the best interest of the
child. The court shall include in its final decree a specific schedule of
parenting time for that parent.
R.C. 3109.051(D) instructs the court to consider 16 factors, of which the following are
relevant in this instance:
(2) The geographic location of the residence of each parent and the
distance between those residences, * * *
(3) The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and
the child’s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
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***
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time
and to facilitate the other parent’s parenting time rights * * *
***
(16) Any other factor in the best interest of the child.
Each common pleas court is required by R.C. 3109.051(F)(2) to adopt standard
parenting time guidelines. However, when deciding how to divide parenting time “[a]
court shall have discretion to deviate from its standard parenting time guidelines
based upon factors set forth in division (D) of this section.” R.C. 3109.051(F)(2).
{¶30} A trial court’s decision allocating parenting time is reviewed for an
abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028(1988). A court abuses its discretion when it makes a decision that is unreasonable,
arbitrary, or unconscionable. Blakemore, supra. The central focus of any visitation
order is the best interest of the children. Kelm v. Kelm, 92 Ohio St.3d 223, 226, 749
N.E.2d 299 (2001). “A trial court may limit or restrict visiting rights of a party in order
to further the child's best interest.” Callender v. Callender, 7th Dist. No. 03-CA-790,
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2004-Ohio-1382, at ¶31. The court has the “power to restrict the time and place of
visitation, to determine the conditions under which visitation will take place and to
deny visitation rights altogether if visitation would not be in the best interests of the
child.” Id., quoting Anderson v. Anderson, 147 Ohio App.3d 513, 2002-Ohio-1156,
771 N.E.2d 303, at ¶18, and Jannetti v. Nichol, 7th Dist. No. 97 CA 239 (May 12,
2000).
{¶31} Mother contends that the trial court erred in awarding father
approximately 1.5 additional days of parenting time every other week during the
school year above the time allowed for a non-residential parent under the trial court’s
local time schedule. Mother contends that because father did not request additional
time he was not entitled to time beyond the standard amount. Mother is mistaken.
R.C. 3109.051(A) specifically charges the court to “ensure the opportunity for both
parents to have frequent and continuing contact with the child.” Although the court is
required to have a default parenting schedule, nothing in the statute requires the
automatic imposition of the local schedule. The statute expressly reserves the trial
court’s discretion to tailor the parenting time schedule. The factors included in part
(D) of the statute require the court to make a wide-ranging analysis of each individual
situation before determining the appropriate amount of parenting time.
{¶32} Unfortunately, the trial court’s decision on this issue has the same
defect as the decision to terminate shared parenting: the court does not adopt the
magistrate’s decision nor does it make its own finding that additional parenting time is
in the best interest of the child. While the trial court’s agreement with the
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magistrate’s conclusion is evident from the trial court’s ruling on mother’s objection to
the magistrate’s decision, the necessary elements of the best interest finding and the
application of R.C. 3109.051 cannot be implied from the language of the trial court’s
final order. This omission is compounded by a lack of evidence in the record
addressing the child’s best interest with regard to parenting time. Because the ruling
does not contain the necessary findings, we cannot review with any accuracy
mother’s cross-assignments of error. Thus, the trial court’s decision must be
reversed and remanded so that the court may adopt a judgment entry that reflects
that trial court’s findings and is in compliance with R.C. 3109.051.
Cross-Assignment of Error I
WHEN THERE WAS NEVER A REQUEST FOR A CHILD SUPPORT
DEVIATION, NOR ANY EVIDENCE PRESENTED AS TO A CHILD
SUPPORT DEVIATION THEN THE TRIAL COURT ERRED AS A
MATTER OF LAW IN GRANTING A DEVIATION FROM THE
PRESUMPTIVELY CORRECT CHILD SUPPORT WORKSHEET
AMOUNT.
Cross-Assignment of Error II
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING A
DEVIATION FROM THE PRESUMPTIVELY CORRECT CHILD
SUPPORT WORKSHEET AMOUNT WHEN THE FATHER FAILED TO
PRESENT ANY EVIDENCE AS TO A DEVIATION.
Cross-Assignment of Error III
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AS THE TRIAL COURT FAILED TO SET FORTH ANY FINDINGS OF
FACT WHY THE PRESUMPTIVELY CORRECT CHILD SUPPORT
WORKSHEET AMOUNT WOULD NOT BE IN THE PARTIES’ CHILD’S
BEST INTEREST THEN THE TRIAL COURT ERRED AS A MATTER
OF LAW IN GRANTING A DEVIATION FROM THE CHILD SUPPORT
WORKSHEET AMOUNT.
Cross-Assignment of Error IV
AS BOTH THE MAGISTRATE’S DECISION AND THE TRIAL
COURT’S JUDGMENT ENTRY FAIL TO SET FORTH AN
EXPLANATION AS TO HOW THEY ARRIVED AT A 40%
DOWNWARD DEVIATION FROM THE PRESUMPTIVELY CORRECT
CHILD SUPPORT WORKSHEET AMOUNT THEN THE TRIAL
COURT’S JUDGMENT IS ERRONEOUS AS A MATTER OF LAW.
{¶33} The remainder of mother’s cross-assignments of error all address the
propriety of the decision to decrease the presumptively correct child support amount
by 40%. For this reason, they will be addressed together. Unlike decisions
concerning shared parenting and parenting time schedules, which are guided by
statute but left to a trial court’s discretion, the amount of child support is primarily
determined by the basic child support schedules and the applicable worksheets
pursuant to R.C. 3119.02. A trial court’s discretion with regard to child support is
limited. A court evaluating child support “shall calculate the amount of the obligor’s
child support obligation in accordance with the basic child support schedule, the
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applicable worksheet, and other provisions of sections 3119.02 to 3119.24.” R.C.
3119.02.
{¶34} The basic support schedule, codified as R.C. 3119.021, considers the
combined gross income of the parents, unless it is below or above the statutory
thresholds of $6600.00 and $150,000.00. The parties’ combined gross income in this
instance is within the range covered by R.C. 3119.021. R.C. 3119.022 codifies the
worksheet a court is required to use when making the support calculation. The
worksheet considers the income of each parent relative to the shared support
obligation and allows for other support and tax obligations. A child support
determination “calculated pursuant to the basic child support schedule and applicable
worksheet through the line establishing the actual annual obligation, is rebuttably
presumed to be the correct amount of child support due.” R.C. 3119.03. R.C.
3119.05 governs how a court is to arrive at a gross income amount for each parent.
{¶35} If, having complied with R.C. 3119.02 et seq., the trial court decides
that the schedule amount is not appropriate, the court may decide to deviate from the
presumptively correct child support amount. A court is permitted to order a child
support amount that deviates from the amount of support “that would otherwise result
from the use of the basic child support schedule and the applicable worksheet * * * if
* * * the court determines that the amount * * * would be unjust or inappropriate and
would not be in the best interest of the child.” R.C. 3119.22. If a court elects to
deviate, the court must cite to factual findings in support of that decision in
compliance with R.C. 3119.23, which provides:
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The court may consider any of the following factors in determining
whether to grant a deviation pursuant to section 3119.22 of the Revised
Code:
(A) Special and unusual needs of the children;
(B) Extraordinary obligations for minor children or obligations for
handicapped children who are not stepchildren and who are not
offspring from the marriage or relationship that is the basis of the
immediate child support determination;
(C) Other court-ordered payments;
(D) Extended parenting time or extraordinary costs associated with
parenting time, provided that this division does not authorize and shall
not be construed as authorizing any deviation from the schedule and
the applicable worksheet, through the line establishing the actual
annual obligation, or any escrowing, impoundment, or withholding of
child support because of a denial of or interference with a right of
parenting time granted by court order;
(E) The obligor obtaining additional employment after a child support
order is issued in order to support a second family;
(F) The financial resources and the earning ability of the child;
(G) Disparity in income between parties or households;
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(H) Benefits that either parent receives from remarriage or sharing
living expenses with another person;
(I) The amount of federal, state, and local taxes actually paid or
estimated to be paid by a parent or both of the parents;
(J) Significant in-kind contributions from a parent, including, but not
limited to, direct payment for lessons, sports equipment, schooling, or
clothing;
(K) The relative financial resources, other assets and resources, and
needs of each parent;
(L) The standard of living and circumstances of each parent and the
standard of living the child would have enjoyed had the marriage
continued or had the parents been married;
(M) The physical and emotional condition and needs of the child;
(N) The need and capacity of the child for an education and the
educational opportunities that would have been available to the child
had the circumstances requiring a court order for support not arisen;
(O) The responsibility of each parent for the support of others;
(P) Any other relevant factor.
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The court may accept an agreement of the parents that assigns a
monetary value to any of the factors and criteria listed in this section
that are applicable to their situation.
If the court grants a deviation based on division (P) of this section, it
shall specifically state in the order the facts that are the basis for the
deviation.
The magistrate in this instance conclusively found that the presumptively correct
amount of child support would be unjust or inappropriate and not in the best interest
of the child. However, the magistrate did not explain how this conclusion was
reached or establish the basis of his calculation that resulted in a 40% downward
deviation. The evidence of the record likewise does not appear to support this
decision.
{¶36} The facts referenced by the trial court explaining the deviation are
irrelevant to a support determination and do not provide a basis for deviation. The
primary consideration in any support determination is the best interest of the child.
R.C. 3119.22. The similarity in the parties’ incomes, without evidence of additional
contributions or other expenses that should be offset, is not a basis for deviation.
Similarly, the disparity in the incomes of the parties in 2008 is not a factor to consider
when making a support calculation in 2012. The court has terminated the shared
parenting plan. The amount of support agreed to in 2008 is in no way reflective of
the best interest of the child in 2012 or 2013. Inasmuch as the parties’ incomes have
changed since they initiated their shared parenting plan, so too have their living
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situations and the needs of the child. The factors a court may consider are designed
to address extraordinary or unusual circumstances and large disparities in income
and resources between the parties. The worksheet itself accounts for incomes that
are similar. No deviation is merited due to similar incomes. While it is true that father
was allowed a small increase in parenting time, the deviation in time allowed does
not appear to amount to an extraordinary circumstance in order to support a 40%
reduction in the presumptively correct amount. Nothing in the record before us
suggests, given the parties’ proximity, the lack of extraordinary health concerns, and
the apparent absence of any other burden on father’s income, that a 40% deviation
would be in the best interest of the child.
{¶37} The trial court’s decision in this instance does not include factual
findings that justify a 40% deviation. The factual basis proposed by the trial court’s
ruling on mother’s objection to the magistrate’s decision appears to provide an
arbitrary basis for the decision to adopt the trial court’s 40% deviation. Due to the
omission of the trial court’s own findings from the judgment entry, we cannot
adequately review this assignment. Hence, the trial court’s decision as to the
calculation of child support is reversed for lack of a final order and the matter is
remanded for a support calculation that complies with R.C. 3119.02 et seq. and
considers those factors identified by statute as being in the child’s current best
interest.
Conclusion
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{¶38} The trial court’s judgment entry terminating the parties’ shared
parenting plan, naming mother residential parent and establishing a parenting
schedule that deviated slightly from the standard local parenting time schedule, omit
the necessary findings by the trial court. The trial court’s rulings on the parties’
objections to the magistrate’s decision seem to indicate the trial court’s intention to
accept the magistrate’s findings of fact, however, the necessary language was
omitted from the final entry. While the trial court has discretion to set parenting time
on a schedule that differs from the standard order, the court must give its reasons for
so doing in the order. The child support determination does not reflect compliance
with R.C. 3119.02 et seq. and the relevant evidence in the record on this issue does
not appear to support the disproportionate deviation ordered by the magistrate in the
absence of extraordinary circumstances. For these reasons, the trial court’s decision
is reversed in its entirety and the matter is remanded for any necessary proceedings
and the entry of a judgment that reflects the trial court’s findings and final order on
each issue.
Donofrio, J., concurs.
Vukovich, J., concurs.