Redmond v. Wade , 2017 Ohio 2877 ( 2017 )

[Cite as Redmond v. Wade, 2017-Ohio-2877.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
KERI B. REDMOND, fka WADE, :
Plaintiff-Appellant, : Case No. 16CA16
vs. :
ADAM R. WADE, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
_________________________________________________________________
APPEARANCES:
Keri Redmond Paton, Louisville, Kentucky, pro se appellant
Mark K. McCown, Ironton, Ohio, for appellee
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 5-12-17
ABELE, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that (1)
terminated a shared parenting decree, (2) designated Adam R. Wade, defendant below and
appellee herein, the residential parent of the parties’ seven-year-old child, and (3) allocated
parenting time to Keri Redmond fka Wade, plaintiff below and appellant herein. Appellant
assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“JUDGE COOPER FAILED TO PERFORM AN INDEPENDENT
REVIEW OF THE MAGISTRATE’S DECISION, WHICH IS AN
ABUSE OF DISCRETION. NOT PERFORMING AN
INDEPENDENT REVIEW VIOLATES CIVIL RULE
LAWRENCE, 16CA16 2
53(D)(4)(d).”
SECOND ASSIGNMENT OF ERROR:
“NEITHER JUDGE COOPER NOR MAGISTRATE
MCWHORTER REQUIRED THE PARENTS TO VERIFY
THEIR INCOME THROUGH SUPPORTING
DOCUMENTATION. R.C. 3119.05(A) REQUIRES THAT THE
CHILD SUPPORT CALCULATION BE CALCULATED
THROUGH VERIFIED DOCUMENTS. MAGISTRATE
MCWHORTER AND JUDGE COOPER WERE BIAS[ED] AND
CLEARLY FAVORED THE FATHER OVER THE MOTHER IS
A VIOLATION OF THE MOTHER’S 14TH CONSTITUTIONAL
AMENDMENT AND DUE PROCESS [OF] LAW.”
THIRD ASSIGNMENT OF ERROR:
“TERMINATING THE SHARED PARENTING AGREEMENT
USING 3109.04(E)(2)(c) WHEN IT SHOULD HAVE USED
3109.04(E)(1)(a) [SIC]. THE TRIAL COURT HAD NOT
TERMINATED THE PARTIES’ SHARED-PARENTING PLAN
BUT INSTEAD HAD MODIFIED THE PLAN. R.C.
3109.04(E)(1)(a) CONTROLS WHEN A COURT MODIFIES AN
ORDER DESIGNATING THE RESIDENTIAL PARENT AND
LEGAL CUSTODIAN.”
FOURTH ASSIGNMENT OF ERROR:
“AN ABUSE OF DISCRETION NOT RECOGNIZING THE
MOTHER AS THE SOLE RESIDENTIAL PARENT AND
FAILED TO ACKNOWLEDGE THAT THE DECREE IS NOT
SHARED PARENTING [SIC]. PLAIN ERROR OF LAW R.C.
3109.04 ALSO DOES NOT EXPRESSLY DEFINE
‘RESIDENTIAL PARENT’ AND ‘LEGAL CUSTODIAN.’
[SIC] HOWEVER, SUBSECTION (A)(1) STATES THAT IF
ONE PARENT IS ALLOCATED THE PRIMARY PARENTAL
RIGHTS AND RESPONSIBILITIES FOR THE CARE OF A
CHILD, THAT PARENT IS DESIGNATED THE RESIDENTIAL
PARENT AND LEGAL CUSTODIAN.”
FIFTH ASSIGNMENT OF ERROR:
LAWRENCE, 16CA16 3
“THE TRIAL COURT ERRORED [SIC] BY STATING IN THE
FINAL APPEALABLE ORDER THAT BOTH PARTIES
WISHED TO ‘TERMINATE’ THE SHARED PARENTING
PLAN AS AN ABUSE OF DISCRETION AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THE
EVIDENCE WAS MIS-QUOTED AND CONSTRUED BY THE
FATHER.”1
SIXTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT WAS BIAS[ED] AGAINST THE
MOTHER AND FAILED TO RECOGNIZE THAT BOTH
PARENTS FILED MOTIONS TO CHANGE THE PARENTING
TIME OF THE CHILD. * * * * THERE IS AN ABUSE OF
1
Appellant’s fifth assignment of error continues for an additional eighteen lines and appears to conflate the “assignments of error” with the
“statement of the issues.” App.R. 16(A)(3) and (4) require an appellant’s brief to set forth an assignment of error and a statement of the
issues. Accord Painter and Pollis, Ohio Appellate Practice (2016 Ed.), Section 5:13 (explaining that the “‘statement of issues’ should
identify these key issues separately for each assignment of error”); see App.R. 16 (1992 Staff Notes) (stating that the statement of issues
“logically follow the assignments of error”). “[T]he assignments of error are purely for the purpose of pinpointing the source of the alleged
error.” Painter and Pollis, Section 5:13. “The ‘Assignments of Error’ should designate specific rulings which the appellant challenges on
appeal. They may dispute the final judgment itself or other procedural events in the trial court.” N. Coast Cookies, Inc. v. Sweet
Temptations, Inc., 16 Ohio App.3d 342, 343, 476 N.E.2d 388 (8th Dist.1984); accord Davis v. Byers Volvo, 4th Dist. Pike No. 11CA817,
2012-Ohio-882, 2012 WL 691757, fn. 1, citing Painter and Dennis, Ohio Appellate Practice (2007 Ed.), Section 1.45 (stating that “the
assignments of error * * * set forth the rulings of the trial court * * * contended to be erroneous”); see also App.R. Rule 16 (1992 staff notes)
(setting forth an example of a proper assignment of error as, “The trial court erred in overruling defendant-appellant’s motion for directed
verdict. (Tr. ____)”).
On the other hand, “the statement of the issues gives the appellant an opportunity to begin to explain, through advocacy, how the
trial court erred.” Painter and Pollis, Section 5:13. “The ‘Statement of Issues’ should express one or more legal grounds to contest the
procedural actions challenged by the assigned errors. They may subdivide questions presented by individual assigned errors, or they may
be substantially equivalent to the assigned errors.” N. Coast Cookies, Inc., 16 Ohio App.3d at 343–44; accord App.R. 16 (1992 Staff Notes)
(explaining that “[t]he issues presented are the issues raised by the assignments of error”).
Appellant’s failure to comply with the Appellate Rules allows us to disregard the assignment of error or to dismiss the appeal.
Hart v. Hudson, 4th Dist. Pickaway No. 10CA19, 2010-Ohio-5954, 2010 WL 4949654, ¶11; Salisbury v. Smouse, 4th Dist. Pike No. 05CA737,
2005-Ohio-5733, 2005 WL 2812754, ¶11-12 (noting that appellate court has “discretion to dismiss an appeal for a party’s failure to comply
with the Appellate Rules”). “However, ‘it is a fundamental tenet of judicial review in Ohio that courts should decide cases on the merits.’”
Salisbury at ¶12, quoting DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192, 431 N.E.2d 644 (1982), citing Cobb v. Cobb, 62 Ohio St.2d
124, 403 N.E.2d 991 (1980). In the interests of justice, therefore, we will consider appellant’s assignment of error.
LAWRENCE, 16CA16 4
DISCRETION AND THE TRIAL COURT RULED AGAINST
THE MOTHER WHEN THERE IS NOT CLEAR AND
CONVINCING EVIDENCE TO DO SO; THIS IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL
COURT COULD HAVE ALSO ORDERED A SHARED
PARENTING DECREE NAMING BOTH PARENTS
‘RESIDENTIAL PARENT’ THEN ALTERED THE PARENTING
TIME WITH EACH PARENT. TO PUNISH THE MOTHER
FOR MOVING AND TO REWARD THE FATHER IS AN
ABUSE OF DISCRETION, PLAIN ERROR OF OHIO LAW,
AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
SEVENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRORED [SIC] IN A FINDING THAT
TERMINATING THE SHARED PARENTING WAS IN THE
CHILD’S BEST INTEREST AN ABUSE OF DISCRETION,
AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE. [SIC] THERE WAS NO EVIDENCE
PRESENTED AT THE TRIAL TERMINATING SHARED
PARENTING WAS IN [THE CHILD]’S BEST INTEREST. * * *
*.”
EIGHTH ASSIGNMENT OF ERROR:
“ALTHOUGH THE TRIAL COURT ERRORED [SIC] IN
STATING WHETHER IT FOUND A CHANGE OF
CIRCUMSTANCE. [SIC] THE TRIAL COURT FAILED TO
UPHOLD OHIO STATUE [SIC], AND WAS IN PLAIN ERROR
OF LAW. IT IS BELIEVED BY THIS APPELLANT THAT
THERE WAS NOT A CHANGE IN CIRCUMSTANCE
BETWEEN ANY OF THE PARTIES, THE FATHER, THE
MOTHER OR THE CHILD. * * * * ”2
{¶ 2} On August 17, 2011, the parties agreed to dissolve their marriage, and the court
incorporated the parties’ shared parenting plan into its dissolution decree. The shared parenting
plan states: “The parties agree to a shared parenting plan * * * with [appellant] designated as
2
We have omitted extraneous material from appellant’s sixth, seventh, and eighth assignments of error.
LAWRENCE, 16CA16 5
residential parent.”
{¶ 3} Both parties eventually remarried. Appellee and his new wife continued to live
in Lawrence County. Appellant married her new husband in September 2015. Before their
marriage, appellant’s new husband obtained a job in Louisville, Kentucky. In late spring 2015,
appellant accepted a job offer in Louisville.
{¶ 4} Appellant discussed her impending relocation with appellee in the hope that the
parties could agree how to manage their shared parenting plan. Apparently, the parties could not
reach an agreement. Thus, on May 21, 2015, appellee filed a motion to designate him the
child’s residential parent, or alternatively, to modify parenting time. On August 19, 2015,
appellant filed a motion to terminate the shared parenting plan and to designate her the sole
residential parent, or alternatively, to modify the shared parenting plan.
{¶ 5} On September 23 and 24, 2015, the magistrate held a hearing to consider the
parties’ motions. Appellant testified that when the parties dissolved their marriage, they agreed
to “do shared parenting so [appellee] could have equal rights and say so in [the child’s] medical
and school related things and anything else that would” arise. Appellant further stated that the
parties agreed that she would be designated the residential parent for “purposes of school.” She
and appellee also agreed that appellant would have care of the child fifty-three percent of the
time, and that appellee would have care of the child forty-seven percent of the time.
{¶ 6} Appellant explained that shortly after the dissolution, she and appellee switched
care of the child every two to three days. However, once the child started kindergarten, the
parties agreed that the child should stay in appellant’s household during the school week. Thus,
throughout the child’s kindergarten year, the child lived in appellant’s household Monday
LAWRENCE, 16CA16 6
through Friday. Appellee had care of the child on alternating weekends, plus every Friday.
During the summer after kindergarten, the parties switched care of the child every two to three
days. When the child started first grade, the parties agreed that the child would stay in
appellant’s household Monday through Friday, that appellee could spend Tuesday and Thursday
evenings with the child, and that appellee would have care of the child every other weekend.
{¶ 7} Appellant stated that during the six months to one year after the parties’
dissolution, appellee attended the child’s doctor visits. Appellant testified that after that time
period, however, she “always took [the child] to the doctor” and “always * * * made the
appointments and decided [whether the child] needed to go to the doctor.” Appellant explained
that she informed appellee about the doctor appointments so that he could attend, but that he did
not indicate a desire to attend the appointments.
{¶ 8} Appellant testified that when she learned that she would be relocating to
Louisville, she attempted to discuss the shared parenting arrangement with appellee and believed
that the parties would be able to agree, but claimed that appellee refused to talk with her.
Appellant explained that until she received appellee’s May 2015 motion, she thought the parties
still were attempting to resolve the matter.
{¶ 9} Appellant stated that she started working in Louisville in June 2015, that she and
her current husband live in an apartment where the child has her own bedroom and bathroom,
and that they live in a “very good” school district. Appellant related that Louisville has many
nearby “kid-friendly” activities, such as bowling, miniature golf, science programs, martial arts,
and dance. Appellant stated that she contemplated how shared parenting would work if the child
primarily lives with her in Louisville and explained her proposal. Under her proposal, the child
LAWRENCE, 16CA16 7
would live in her household during the school week, and the parties would alternate weekends.
Appellant explained that she believes the child should continue to live primarily in her
household, because appellant has been the child’s primary caregiver and because the child
primarily lived in her household until the present litigation began. She believes that keeping the
time each parent spends with the child as close as possible to their pre-litigation time would have
the least detrimental impact on the child.
{¶ 10} Appellant acknowledged that the child has a large extended family in Lawrence
County, but stated that even if the child primarily lived with her in Louisville, the child still will
see the extended family two or three times each month. She testified that she plans to visit her
family in Lawrence County at least once each month, and that she would make an effort so that
the child continued to share a relationship with the extended family. Also, she noted that under
her plan, the child would visit appellee (and have the opportunity to see the extended family)
every other weekend. Appellant thus believes that the child could maintain her extended-family
relationships, even if the child moved to Louisville.
{¶ 11} Appellee testified that he does not believe that relocating the child to Louisville is
in the child’s best interest. He explained that the child has deep connections in Lawrence
County, with “twenty plus blood relatives.” Appellee related that the child sees the extended
family frequently and that his mother sometimes babysits the child. He believes that losing the
frequent contact with the extended family would be detrimental to the child. Appellee further
stated that the child has attended the same school for the past three years and has developed
friendships. He believes that the child’s connections to Lawrence County outweigh any
potential benefit from transferring to a large city.
LAWRENCE, 16CA16 8
{¶ 12} Appellee agreed that before appellant relocated to Louisville, the child spent the
majority of the time in appellant’s household and that his household was “secondary.” Appellee
stated that since appellant’s relocation, the situation has been reversed. He admitted that the
child “miss[es] her mom.”
{¶ 13} On September 29, 2015, the magistrate entered a decision that terminated the
parties’ shared parenting plan and designated appellee the child’s residential parent. Appellant
timely objected to the magistrate’s finding that shared parenting is no longer in child’s best
interest, and to the decision to terminate shared parenting and designate appellee the residential
parent.
{¶ 14} Appellant later obtained new counsel who filed “preliminary objections” and a
motion to extend the time for filing objections. The “preliminary objections” alleged that the
magistrate did not give proper weight to appellant’s status as the child’s primary caregiver and to
her designation, in the shared parenting plan, as the child’s residential parent. Appellant also
objected to the magistrate’s finding that designating appellee the child’s residential parent is in
the child’s best interest, and to the magistrate’s parenting time allocation.
{¶ 15} Subsequently, the trial court adopted the magistrate’s decision as an interim order
and granted appellant an extension of time to file objections. Later, the court adopted the
magistrate’s decision pending its ruling on the objections.
{¶ 16} On December 31, 2015, appellant filed “final” objections to the magistrate’s
decision. Appellant asserted that she initially thought terminating the shared parenting plan was
in the child’s best interest, but she “has changed her position” and now believes that the court
should not terminate the plan, but instead, should maintain shared parenting and simply modify
LAWRENCE, 16CA16 9
the parenting time schedule. Appellant alternatively argued that if the court terminates shared
parenting, then it should designate appellant the child’s residential parent and “give [her] sole
custody.” She further stated that the court should instruct each party to submit income
documentation to calculate child support.
{¶ 17} On April 26, 2016, the trial court held a hearing to consider appellant’s objections.
At the hearing, appellant argued that terminating the shared parenting plan is not in the child’s
best interest. Appellant’s counsel also indicated that appellee’s counsel had provided income
documentation and that the parties had resolved the income-documentation issue.
{¶ 18} On May 3, 2016, the trial court entered a judgment that terminated the parties’
prior shared parenting decree and designated appellee the child’s residential parent.3 In reaching
its decision, the court examined the R.C. 3109.04(F)(1) and (F)(2) best interest factors. The
court noted that each parent requested “full custody” and that appellant alternatively requested
the court to modify the shared parenting plan. The court found that both parents are “loving and
successful” and have the child’s well-being “as their paramount concern.” The court observed
that it interviewed the child and that the child “was noncommittal and did not provide any
relevant information to the Court to decide the issues.” The court found that the child enjoys “a
very good relationship with each parent and with the two new spouses” and is “a well balanced
seven year old female, who did not appear to be in distress as to the current situation.” The
3
Although the trial court did not explicitly state whether it chose to adopt, modify, or reject the magistrate’s decision pursuant to
Civ.R. 53(D)(4)(b), the court’s ultimate judgment reflects that it largely adopted the magistrate’s decision. Moreover, we point out that the
trial court did not expressly rule on appellant’s objections to the magistrate’s decision. Again, however, its ultimate judgment indicates that
the court implicitly ruled on the objections. See generally Chatfield & Woods Sack Co., Inc. v. Nusekabel, 1st Dist. Hamilton No.
C980315, 1999 WL 960782, *1 (observing that trial court “implicitly overruled” objections to the magistrate’s decision when it entered
LAWRENCE, 16CA16 10
court additionally noted that the child has twenty or more extended family members who live in
the Lawrence County area and that the child is involved in church activities in Lawrence County.
The court also recognized that the child recently moved from primarily living in appellant’s
household to living in appellee’s household and that her “adjustment to these changes in
circumstances are as expected.”
{¶ 19} The trial court found that the parents had “minor difficulty in joint decision
making,” but “no difficulty” encouraging the sharing of love, affection and contact between the
child and the other parent. The court further found that appellant’s relocation to Louisville
“would make shared parenting difficult, if not impossible.” The court thus determined that
appellant’s move to Louisville, “coupled with the proposed removal of the child from her
extended family, church and school, are not in the child’s best interest.” Consequently, the court
terminated the shared parenting decree, designated appellee the residential parent, and allocated
parenting time to appellant. This appeal followed.
I
PRO SE APPEAL
{¶ 20} Before we consider appellant’s assignments of error, we observe that appellant is
acting pro se in this appeal. Because we ordinarily prefer to review a case on its merits rather
than dismiss it due to procedural technicalities, we generally afford considerable leniency to pro
se litigants. E.g., Viars v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, 2016 WL
3670171, ¶25; Miller v. Miller, 4th Dist. Athens No. 14CA6, 2014-Ohio-5127, 2014 WL
6488876, ¶13; In re Estate of Pallay, 4th Dist. Washington No. 05CA45, 2006-Ohio-3528, 2006
summary judgment in the non-objecting party’s favor).
LAWRENCE, 16CA16 11
WL 1875899, ¶10; Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878,
¶5 (4th Dist.); Besser v. Griffey, 88 Ohio App.3d 379, 382, 623 N.E.2d 1326 (4th Dist.1993);
State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (4th Dist.1992).
“Limits do exist, however. Leniency does not mean, however, that we are required ‘to find
substance where none exists, to advance an argument for a pro se litigant or to address issues not
properly raised.’” State v. Headlee, 4th Dist. Washington No. 08CA6, 2009-Ohio-873, 2009
WL 478085, ¶6, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007-Ohio-6092, 2007
WL 3407169, ¶28. Furthermore, we will not “conjure up questions never squarely asked or
construct full-blown claims from convoluted reasoning.” Karmasu, 83 Ohio App.3d at 206. We
will, however, consider a pro se litigant’s appellate brief so long as it “contains at least some
cognizable assignment of error.” Robb at ¶5; accord Coleman v. Davis, 4th Dist. Jackson No.
10CA5, 2011-Ohio-506, 2011 WL 345772, ¶14 (considering pro se litigant’s brief when it
contains “some semblance of compliance” with appellate rules of practice and procedure). In
the case sub judice, we believe that appellant’s brief contains some cognizable assignments of
error that we may consider on the merits.
II
INDEPENDENT REVIEW
{¶ 21} In her first assignment of error, appellant asserts that the trial court failed to
independently review the magistrate’s decision. She claims that if the trial court judge “had
performed a proper review, he would have recognized that” the magistrate’s decision was
“unlawful and in plain error of the Ohio law.” We do not agree with appellant.
{¶ 22} Civ.R. 53(D)(4)(d) governs a trial court’s ruling on objections to a magistrate’s
LAWRENCE, 16CA16 12
decision and states: “In ruling on objections, the court shall undertake an independent review as
to the objected matters to ascertain that the magistrate has properly determined the factual issues
and appropriately applied the law.” Thus, a trial court’s review of a magistrate’s decision
“contemplates a de novo review of any issue of fact or law that a magistrate has determined when
an appropriate objection is timely filed.” Knauer v. Keener, 143 Ohio App.3d 789, 793–94, 758
N.E.2d 1234 (2nd Dist.2001).
{¶ 23} Absent facts to the contrary, appellate courts should presume that a trial court
conducted an independent analysis when it reviewed a magistrate’s decision. Mahlerwein v.
Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶47 (4th Dist.); see State
v. Raber, 134 Ohio St.3d 350, 2012–Ohio–5636, 982 N.E.2d 684, ¶19 (stating that “[a]
presumption of regularity attaches to all judicial proceedings”). A party who asserts that the trial
court did not conduct an independent review bears the burden to affirmatively rebut this
presumption. Mahlerwein at ¶47. “An affirmative duty requires more than a mere inference[;]
it requires appellant to provide the reviewing court with facts to rebut [the] general
presumption.” In re Taylor G., 6th Dist. No. L–05–1197, 2006-Ohio-1992, 2006 WL 1047474,
¶21; accord Massie v. Sammons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio-5835, 2014 WL
7477855, ¶32.
{¶ 24} After our review in the case sub judice, we do not believe that appellant has
overcome the presumption of regularity. Instead, the record indicates that the trial court
independently reviewed the magistrate’s decision. The court noted that appellant filed
objections to the magistrate’s decision, that the court held a hearing on her objections, and that
the court reviewed the magistrate’s hearing transcript. The court set forth its own factual
LAWRENCE, 16CA16 13
findings and legal conclusions. We have not found anything in the record to suggest that the
trial court failed to independently review the magistrate’s decision. We therefore have no basis
to conclude that the trial court failed to conduct an independent review of the magistrate’s
decision. Appellant’s mere disagreement with the trial court’s application of the law does not
show that the court failed to independently review the magistrate’s decision. Consequently,
appellant’s first assignment of error is meritless. See generally Krohn v. Krohn, 6th Dist. Wood
No. WD-16-010, 2016-Ohio-8379, 2016 WL 7611399, ¶8 (finding “unsupported assertion of a
lack of an independent review to be without merit”); Vogel v. Mestemaker, 2nd Dist. Darke Nos.
2015-CA-20 and 2015-CA-22, 2016-Ohio-7244, 2016 WL 5887178, ¶10 (determining that
record failed to show court did not independently review magistrate’s decision when trial court’s
ruling “explicitly recognized” objections to magistrate’s decision).
{¶ 25} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
III
INCOME DOCUMENTATION
{¶ 26} In her second assignment of error, appellant argues that the trial court erred when
it calculated child support without requiring income documentation. As appellee notes,
however, the parties remedied this issue after appellant raised the matter in her objections to the
magistrate’s decision. At a hearing regarding appellant’s objections, appellant, through her
counsel, agreed that appellee had provided income documentation after the magistrate had issued
his decision. Thus, the record indicates that the parties resolved this issue. Thus, the parties’
resolution of the income-documentation issue renders the issue moot. See generally State ex rel.
LAWRENCE, 16CA16 14
Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, — Ohio St.3d —, 2016-Ohio-7987, — N.E.3d
—, ¶29 (noting that producing requested records in public records case ordinarily renders case
moot). “An issue is moot ‘when it has no practical significance and, instead, presents a
hypothetical or academic question.’” State ex rel. Ford v. Ruehlman, — Ohio St.3d —,
2016-Ohio-3529, — N.E.3d —, ¶55, quoting State v. Moore, 4th Dist. Adams No. 13CA987,
2015-Ohio-2090, 2015 WL 3452607, ¶7.
{¶ 27} In the case sub judice, deciding whether the trial court should have required the
parties to produce income-documentation would have no practical significance. Appellant
agreed that appellee produced income-documentation. Thus, if we decided the matter, we could
not afford appellant any relief.
{¶ 28} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error.
IV
SHARED-PARENTING-DECREE TERMINATION
AND RESIDENTIAL PARENT DESIGNATION
{¶ 29} Appellant’s third through seventh assignments of error challenge various aspects
of the trial court’s decision that terminated the shared parenting decree and that designated
appellee the child’s residential parent. For ease of discussion, we consider them together.
A
INCORRECT LEGAL STANDARD
{¶ 30} In her third and fourth assignments of error, appellant asserts that the trial court
applied the incorrect legal standard when it terminated the shared parenting plan and designated
LAWRENCE, 16CA16 15
appellee the child’s residential parent. She claims that although the trial court purported to
terminate the parties’ shared parenting decree, the court actually modified the prior decree with
the attached shared parenting plan that designated her the child’s residential parent. Appellant
argues that (1) the trial court incorrectly construed the parties’ dissolution decree and attached
shared parenting plan as creating a “shared parenting plan” within the meaning of the statute
when the plan clearly designated appellant the child’s residential parent, and (2) a shared
parenting plan that designates one parent the child’s residential parent cannot, by definition,
constitute a shared parenting plan. Appellant thus contends that the trial court should have
applied the R.C. 3109.04(E)(1)(a) change-in-circumstances standard applicable to
residential-parent-modifications, instead of the R.C. 3109.04(E)(2)(c)
shared-parenting-decree-termination standard.
{¶ 31} Initially, we observe that appellant did not object to the magistrate’s decision to
apply the shared-parenting-termination standard, instead of the change-in-circumstances
standard. Under Civ.R. 53(D)(3)(b)(ii), objections must be “specific” and a party must
“state with particularity all grounds for objections.” The failure to timely file specific objections
and to state with particularity all grounds for objection results in a “[w]aiver” of those particular
issues on appeal. Civ.R. 53(D)(3)(b)(iv); State ex rel. Muhammad v. State, 133 Ohio St.3d 508,
2012–Ohio–4767, 979 N.E.2d 296, ¶3 (noting that party waives argument on appeal if party
failed to specifically raise issue in objections to magistrate’s decision); Faulks v. Flynn, 4th Dist.
Scioto No. 13CA3568, 2014–Ohio–1610, ¶17, citing Civ.R. 53(D)(3)(b)(iv) (“A party forfeits or
waives the right to challenge the trial court’s adoption of a factual finding or legal conclusion
unless the party objects in accordance with Civ.R. 53(D)(3)(b)”); Walters v. Walters, 9th Dist.
LAWRENCE, 16CA16 16
Medina No. 12CA0017–M, 2013–Ohio–636, ¶15 (explaining that a party’s failure to raise a
particular issue when objecting to a magistrate’s decision results in a waiver of that issue on
appeal); McClain v. McClain, 4th Dist. Athens No. 10CA53, 2011–Ohio–6101, ¶7. See
generally State v. Awan, 22 Ohio St.3d 120, 122, 498 N.E.2d 277 (1986) (explaining that
appellate courts “will not consider any error which counsel for a party complaining of the trial
court’s judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.”).
{¶ 32} Courts may, however, consider plain errors. See Civ.R. 53(D)(3)(b)(iv).
Generally, courts should exercise extreme caution when invoking the plain error doctrine,
especially in civil cases. Thus, “the doctrine is sharply limited to the extremely rare case
involving exceptional circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of the judicial process,
thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.
Davidson, 79 Ohio St.3d 116, 122–123, 679 N.E.2d 1099 (1997) (emphasis sic); accord Gable v.
Gates Mills, 103 Ohio St.3d 449, 2004–Ohio–5719, 816 N.E.2d 1049, ¶43. Moreover, we
recognize that the Ohio Supreme Court has cautioned that “[t]he plain error doctrine should
never be applied to reverse a civil judgment * * * to allow litigation of issues which could easily
have been raised and determined in the initial trial.” Goldfuss, 79 Ohio St.3d at 122.
{¶ 33} Trial courts possess a great deal of discretion when considering how to allocate
parental rights and responsibilities so as to promote a child’s best interest. Consequently,
establishing plain error in a parental-rights-and-responsibilities matter “‘”is particularly
difficult.”’” Roby v. Roby, 4th Dist. Washington No. 15CA21, 2016-Ohio-7851, 2016 WL
LAWRENCE, 16CA16 17
6875703, ¶19, quoting Faulks at ¶20, quoting Robinette v. Bryant, 4th Dist. Lawrence No.
12CA20, 2013–Ohio–2889, ¶28.
{¶ 34} In the case sub judice, appellant does not recognize that she failed to object to the
magistrate’s decision to apply the shared-parenting-termination standard, instead of the
change-in-circumstances standard. While she recites “plain error” on multiple occasions
throughout her appellate brief, she does not raise any particular “plain error” arguments. Under
these circumstances, we need not consider whether the court plainly erred. State v. Quarterman,
140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶19, quoting State v. Bodyke, 126 Ohio
St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶78 (O’Donnell, J., concurring in part and
dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (stating that
appellate courts “are not obligated to search the record or formulate legal arguments on behalf of
the parties, because ‘”appellate courts do not sit as self-directed boards of legal inquiry and
research, but [preside] essentially as arbiters of legal questions presented and argued by the
parties before them”’”); Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015–Ohio–2500, ¶9
(explaining that reviewing court will not craft plain error argument for an appellant who fails to
raise one). Regardless, after our review we do not believe that any error the trial court may have
made seriously affected the legitimacy of the underlying judicial process.4
{¶ 35} We further note that at no point during the trial court proceedings did appellant
4
We observe that appellate courts have rejected arguments that
a trial court must find a change in circumstances before terminating
a shared parenting decree that includes a shared parenting plan
designating one of the parents the child’s residential parent. Sayre
v. Furgeson, 2016-Ohio-3500, 66 N.E.3d 332 (3rd Dist.); In re J.L.R.,
4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶28.
LAWRENCE, 16CA16 18
assert that the trial court should apply the R.C. 3109.04(E)(1)(a) change-in-circumstances
standard. Instead, she initially requested the court to terminate the shared parenting decree and
to designate her the child’s residential parent or, alternatively, to modify the shared parenting
plan’s parenting time provisions. She later “changed her mind” and argued that the court should
not terminate the shared parenting plan, but instead, should simply modify the parties’ parenting
time as set forth in the shared parenting plan. Appellant did not advocate that the court should
apply the R.C. 3109.04(E)(1)(a) change-in-circumstances standard. Appellant cannot advocate
during the trial court proceedings that the trial court should apply either the
shared-parenting-decree-termination standard (R.C. 3109.04(E)(2)(c)) or the
shared-parenting-plan-modification standard (R.C. 3109.04(E)(2)(a) and (b)), and then argue on
appeal that the trial court should have employed the change-in-circumstances standard. In re
S.N.T. and S.L.T., 4th Dist. Washington No. 12CA2, 2012–Ohio–3266, ¶10 (determining that
party in custody proceeding waived argument that trial court should have applied
change-in-circumstances standard before awarding custody when party advocated a different
standard before the trial court). We therefore believe that appellant invited any error that might
be associated with the trial court’s failure to apply the change-in-circumstances standard. See
State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002–Ohio–4849, 775 N.E.2d 517, ¶27 (“Under
[the invited-error] doctrine, a party is not entitled to take advantage of an error that he himself
invited or induced the court to make”); State v. Rohrbaugh, 126 Ohio St.3d 421,
2010–Ohio–3286, 934 N.E.2d 920, ¶10 (even plain error is waived where error is invited);.
{¶ 36} We additionally point out that the invited-error doctrine is not rendered
inapplicable when a party claims plain error:
LAWRENCE, 16CA16 19
While invocation of the plain error doctrine is often justified in order to
promote public confidence in the judicial process, “[it is doubtful that] the
public’s confidence in the jury system is undermined by requiring parties to live
with the results of errors that they invited, even if the errors go to ‘crucial
matters.’ In fact, the idea that parties must bear the cost of their own mistakes at
trial is a central presupposition of our adversarial system of justice.”
Goldfuss, 79 Ohio St.3d at 121-122, quoting Montalvo v. Lapez 1994), 77 Hawaii 282, 305, 884
P.2d 345, 368 (Nakayama, J., concurring in part and dissenting in part). Thus, even if the trial
court plainly erred by applying R.C. 3109.04(E)(2)(c), instead of R.C. 3109.04(E)(1)(a) or
(E)(2)(a) and (b), appellant cannot take advantage of a plain error that she invited.5
{¶ 37} Accordingly, based upon the foregoing reasons, we overrule appellant’s third and
fourth assignments of error.
B
SHARED PARENTING DECREE TERMINATION
{¶ 38} In her fifth assignment of error, appellant challenges the trial court’s finding the
5
We observe that appellant appears to blame her original trial counsel for filing a motion to terminate the shared parenting
decree, rather than a simple request to modify the shared parenting plan’s parenting time provisions, and requests that we consider her
castigation of trial counsel in reviewing her appeal. We note, however, that the Ohio Supreme Court has refused to recognize trial
counsel’s purported error in a civil case as a justification for reversing a trial court’s judgment. Goldfuss, 79 Ohio St.3d at 122.
Parties in civil litigation choose their own counsel who, in turn, choose their theories of prosecuting and
defending. The parties, through the attorneys, bear responsibility for framing the issues and for putting both the trial
court and their opponents on notice of the issues * * *. An unsuccessful litigant may not obtain a new trial based upon
the bare assertion that his or her attorney was ineffective. To so hold would unfairly shift the loss caused by poor
strategy decisions, miscalculations, or errors from the parties responsible to the innocent opponent. If an attorney’s
representation has fallen below professional standards, remedies are available in a malpractice action.
Id. (citations omitted); accord Phillis v. Phillis, 164 Ohio App.3d 364, 2005-Ohio-6200, 842 N.E.2d 555, 53 (5th Dist.) (explaining that civil
litigant does not have a constitutional or statutory right to effective assistance of counsel when incarceration not involved and when attorney
privately employed).
LAWRENCE, 16CA16 20
both parties wished to terminate the shared parenting plan. Appellant argues that she “changed
her mind” and “never agreed to terminate the shared parenting plan.”
{¶ 39} In her sixth assignment of error, appellant contends that the trial court “was
bias[ed] against [her] and failed to recognize that both parents filed motions to change the
parenting time of the child.” She asserts that the parties “only agreed to modify the parenting
time of the parties” and that the trial court should have maintained the shared parenting decree
and simply modified the parenting time provisions set forth in the shared parenting plan.
{¶ 40} In her seventh assignment of error, appellant argues that the trial court abused its
discretion by determining that terminating the shared parenting plan is in the child’s best interest.
She contends that “[t]here was no evidence presented at the trial terminating shared parenting
was in [the child]’s best interest.”
1
STANDARD OF REVIEW
{¶ 41} Appellate courts generally review trial court decisions regarding the allocation of
parental rights and responsibilities with the utmost deference. Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 674 N.E.2d 1159 (1997); Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846(1988). Consequently, “a trial court’s decision in a custody proceeding is subject to reversal
only upon a showing of abuse of discretion.” In re A.J., — Ohio St.3d —, 2016-Ohio-8196, —
N.E.3d. —, ¶27.
{¶ 42} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N .E.2d 597 (1990), citing Huffman v. Hair
LAWRENCE, 16CA16 21
Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985); accord Westlake Civ. Serv. Comm.
v. Pietrick, 142 Ohio St.3d 495, 2015-Ohio-961, 33 N.E.3d 18, ¶36. “A decision is
unreasonable if there is no sound reasoning process that would support that decision.” AAAA
Ents., Inc., 50 Ohio St.3d at 161. An unconscionable or arbitrary decision generally means a
“‘”view or action ‘that no conscientious judge, acting intelligently, could honestly have
taken.’”’” State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶25,
quoting State ex rel. Wilms v. Blake, 144 Ohio St. 619, 624, 30 O.O. 220, 60 N.E.2d 308 (1945),
quoting Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149 (1937), quoting Davis v. Boston
Elevated Ry. Co., 235 Mass. 482, 497, 126 N.E. 841 (1920). In other words, in order to find an
abuse of discretion, “‘the result must be so palpably and grossly violative of fact or logic that it
evidences not the exercise of will but the perversity of will, not the exercise of judgment but the
defiance of judgment, not the exercise of reason but instead passion or bias.’” Vaught v.
Cleveland Clinic Found., 98 Ohio St.3d 485, 2003–Ohio–2181, 787 N.E.2d 631, ¶13, quoting
Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996); accord Freshwater
v. Mt. Vernon City School Dist. Bd. of Edn., 137 Ohio St.3d 469, 2013–Ohio–5000, 1 N.E.3d
335, ¶77; Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993) (“The
appellate court is to determine only if the trial court has abused its discretion, i.e., being not
merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral
delinquency.”). A decision is not unreasonable, arbitrary, or unconscionable “simply because
the appellate court might not have reached the same conclusion or is, itself, less persuaded by the
trial court’s reasoning process than by the countervailing arguments.” State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14, citing AAAA Ents., Inc., 50 Ohio St.3d at 161
LAWRENCE, 16CA16 22
(stating “[i]t is not enough that the reviewing court, were it deciding the issue de novo, would not
have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning
processes that would support a contrary result”). Thus, when applying the abuse of discretion
standard, a reviewing court may not substitute its judgment for that of the trial court. E.g.,
Savage v. Correlated Health Serv., Ltd., 64 Ohio St.3d 42, 55, 591 N.E.2d 1216 (1992);
Freshwater at ¶77, quoting Graziano, 32 Ohio St.3d at 294, 513 N.E.2d 282 (“‘Absent an abuse
of discretion on the part of the trial court, the court of appeals may not engage in what amounts to
a substitution of judgment of the trial court.’”).
{¶ 43} In Davis, the court more specifically defined the standard of review that applies in
custody proceedings as follows:
“Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as being
against the weight of the evidence by a reviewing court. (Trickey v. Trickey
[1952], 158 Ohio St. 9, 47 O.O. 481, 106 N.E.2d 772, approved and followed.)”
[Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus].
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. As we stated in
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80–81, 10 OBR 408,
410–412, 461 N.E.2d 1273, 1276–1277:
“The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony. * * *
****
* * * A reviewing court should not reverse a decision simply because it
holds a different opinion concerning the credibility of the witnesses and evidence
submitted before the trial court. A finding of an error in law is a legitimate
ground for reversal, but a difference of opinion on credibility of witnesses and
evidence is not. The determination of credibility of testimony and evidence must
not be encroached upon by a reviewing tribunal, especially to the extent where the
appellate court relies on unchallenged, excluded evidence in order to justify its
reversal.”
LAWRENCE, 16CA16 23
Id. at 418–419.
{¶ 44} Additionally, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties’ demeanor and attitude that
does not translate to the record well.” Id. at 419. Furthermore, “custody issues are some of the
most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must
have wide latitude in considering all the evidence.” Id. at 418. As the Ohio Supreme Court
long-ago explained:
In proceedings involving the custody and welfare of children the power of
the trial court to exercise discretion is peculiarly important. The knowledge
obtained through contact with and observation of the parties and through
independent investigation can not be conveyed to a reviewing court by printed
record.
Trickey, 158 Ohio St. at 13. Thus, this discretionary standard of review does not permit us to
reverse a trial court’s decision if we simply disagree with it. We may, however, reverse a trial
court’s custody decision if the court made an error of law, if its decision is unreasonable,
arbitrary, or unconscionable, or if substantial competent and credible evidence fails to support it.
Davis, 77 Ohio St.3d at 418–419, 421 (explaining “abuse of discretion standard” and stating that
courts will not reverse custody decisions as against the manifest weight of the evidence if
substantial competent and credible evidence supports it, courts must defer to fact-finder, courts
may reverse upon error of law, and trial court has broad discretion in custody matters).
2
LAWRENCE, 16CA16 24
R.C. 3109.04(E)(2)(c)
{¶ 45} R.C. 3109.04(E)(2)(c) allows a court to “terminate a prior final shared parenting
decree that includes a [jointly-recommended] shared parenting plan * * * 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.”
{¶ 46} Thus, a court may terminate a jointly-recommended parenting decree if (1) one of
the parties requests it, (2) if both parties request it, or (3) if the court finds that shared parenting
no longer is in the child’s best interest. J.L.R., supra, at ¶31. The statute does not require a trial
court to find a change in circumstances before it may terminate a shared parenting decree. Id. at
¶28.
{¶ 47} In the case sub judice, even if appellant ultimately “changed her mind” about
terminating shared parenting, appellee requested the court to terminate it. Consequently, R.C.
3109.04(E)(2)(c) permitted the trial court to terminate the shared parenting decree upon
appellee’s request alone. Sayre v. Furgeson, supra, at ¶33 (explaining that “[i]f both parties
agreed upon the shared parenting plan, a mere request by one or both of the parents is a sufficient
basis” for terminating shared parenting decree). The trial court did not need to find that both
parties requested to terminate the shared parenting decree. Accordingly, any error that the court
may have made by determining that both parties requested the court to terminate the shared
parenting decree is harmless. See Civ.R. 61 (explaining that court “must disregard any error or
defect in the proceeding” that does not affect a party’s substantial rights).
{¶ 48} Additionally, assuming, arguendo, that the trial court was required to determine
that shared parenting no longer is in the child’s best interest, we do not believe that the court
LAWRENCE, 16CA16 25
abused its discretion by concluding that shared parenting no longer is in the child’s best interest.
R.C. 3109.04(F)(2) sets forth the factors a court must consider in determining whether shared
parenting is in a child’s best interest:
(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.
Even if some of the foregoing factors suggest that shared parenting had been working well for the
child and the parents until appellant’s relocation, we believe that the trial court could have
reasonably decided that appellant’s relocation would render shared parenting impractical. See
generally J.L.R. at ¶34. Appellant relocated to Louisville, approximately three hours from the
only home the child has ever known. We do not find it illogical to believe that sharing the
parental rights and responsibilities from that distance would prove impractical. Moreover, the
distance between appellant’s new home and the child’s hometown would not allow mid-week
exchanges during the school year. Instead, the child would need to remain primarily in one
location throughout the school year, instead of being transported back-and-forth. While the
record leaves no doubt that both appellant and appellee are wonderful parents who deeply love
and care for their child, and that either home would be an appropriate place for the child, the
three-hour distance between their homes reasonably supports a finding that shared parenting has
become impractical.
LAWRENCE, 16CA16 26
{¶ 49} Additionally, although the evidence indicates that the parties generally cooperated
when they both lived in Lawrence County, appellant’s relocation complicated their cooperation
efforts. The parties attempted to resolve appellant’s relocation and where the child would live,
but apparently, they could not agree. Thus, their actions demonstrate that their shared parenting
arrangement had become unworkable.
{¶ 50} To the extent appellant claims that the trial court failed to set forth sufficient
factual findings concerning the shared-parenting-best-interest factors, we observe that she did not
file a Civ.R. 52 request for findings of fact and conclusions of law. Civ.R. 52 states:
When questions of fact are tried by a court without a jury, judgment may
be general for the prevailing party unless one of the parties in writing requests
otherwise * * * in which case, the court shall state in writing the conclusions of
fact found separately from the conclusions of law.
{¶ 51} The purpose of Civ.R. 52 findings of fact and conclusions of law is “‘to aid the
appellate court in reviewing the record and determining the validity of the basis of the trial
court’s judgment.’” In re Adoption of Gibson, 23 Ohio St.3d 170, 172, 492 N.E.2d 146 (1986),
quoting Werden v. Crawford, 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (1982). Thus, a party
may file a Civ.R. 52 request in order “to ensure the fullest possible review.” Cherry v. Cherry,
66 Ohio St.3d 348, 356, 421 N.E.2d 1293 (1981).
{¶ 52} In the absence of findings of fact and conclusions of law, we presume that the trial
court applied the law correctly and will affirm its judgment if evidence in the record supports it.
Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007–Ohio–2019, ¶10, citing Allstate Fin.
Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (12th Dist.1989); accord
Leikin Oldsmobile, Inc. v. Spofford Auto Sales, 11th Dist. Lake No. 2000–L–202,
LAWRENCE, 16CA16 27
2002–Ohio–2441, ¶17 (“It is difficult, if not impossible, to determine the basis of the trial court’s
ruling without findings of fact and conclusions of law * * *.”); Yocum v. Means, 2nd Dist. Darke
No. 1576, 2002–Ohio–3803, ¶7 (“The lack of findings obviously circumscribes our review * *
*.”). As the court explained in Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th
Dist.1988):
[W]hen separate facts are not requested by counsel and/or supplied by the
court the challenger is not entitled to be elevated to a position superior to that he
would have enjoyed had he made his request. Thus, if from an examination of the
record as a whole in the trial court there is some evidence from which the court
could have reached the ultimate conclusions of fact which are consistent with [its]
judgment the appellate court is bound to affirm on the weight and sufficiency of
the evidence.
The message should be clear: If a party wishes to challenge the * * *
judgment as being against the manifest weight of the evidence he had best secure
separate findings of fact and conclusions of law. Otherwise his already “uphill”
burden of demonstrating error becomes an almost insurmountable “mountain.”
{¶ 53} Furthermore, the absence of a request for findings of fact and conclusions of law
ordinarily results in a waiver of the right to challenge the trial court’s lack of an explicit finding
concerning an issue. E.g., Fultz v. Fultz, 4th Dist. Pickaway No. 13CA9, 2014–Ohio–3344, ¶51.
Moreover, a party that does not request findings of fact and conclusions of law cannot complain
on appeal as to a lack of specificity of such findings. Id.{¶ 54} In the case at bar, even if the trial court failed to fully analyze the R.C.
3109.04(F)(2) best interest factors, in the absence of a Civ.R. 52 request it was not required to do
so. Savage v. Savage, 4th Dist. Pike No. 15CA856, 2015-Ohio-5290, 2015 WL 9260564, ¶23;
Hopkins v. Hopkins, 4th Dist. Scioto No. 14CA3597, 2014-Ohio-5850, ¶17, citing In re E.W., 4th
Dist. Washington Nos. 10CA18, 10CA19, and 10CA20, 2011–Ohio–2123, ¶22; Bates v. Gould,
4th Dist. Highland No. 03CA12, 2004–Ohio–571, ¶12. Thus, appellant cannot claim on appeal
LAWRENCE, 16CA16 28
that the trial court erred by failing to completely explain its reasoning regarding the R.C.
3109.04(F)(2) best interest factors. Consequently, in the absence of evidence to the contrary, we
presume the regularity of the trial court proceedings and presume that the trial court properly
applied the law to the facts of the case. We have found nothing in the record to suggest that the
trial court failed to properly analyze the factors set forth in R.C. 3109.04(F)(2).
3
ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES AFTER
TERMINATING SHARED PARENTING DECREE
{¶ 55} Although not entirely clear, appellant also appears to argue that the trial court
abused its discretion by designating appellee the child’s residential parent.
{¶ 56} If a court terminates a prior shared parenting decree,
{¶ 57} “the court shall proceed and issue a modified decree for the allocation of parental
rights and responsibilities for the care of the children under the standards applicable under
divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted
and as if no request for shared parenting ever had been made.” R.C. 3109.04(E)(2)(c).
{¶ 58} R.C. 3109.04(B) specifies that the court must consider a child’s best interest when
allocating parental rights and responsibilities. R.C. 3109.04(F)(1) states that a court that is
evaluating a child’s best interest must consider all relevant factors, in addition to the following
factors:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to division
(B) of this section regarding the child’s wishes and concerns as to the allocation of
parental rights and responsibilities concerning the child, the wishes and concerns
of the child, as expressed to the court;
LAWRENCE, 16CA16 29
(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;
****
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
{¶ 59} In the case sub judice, we do not believe that the trial court abused its discretion
when it evaluated the R.C. 3109.04(F)(1) best interest factors and designated appellee the child’s
residential parent. Both parents would like the child to live primarily under their care, but that
obviously is not possible. Appellant believes that she should be the child’s residential parent–or
that the parties should maintain shared parenting. Appellant asserts that she has been the child’s
primary caregiver and that uprooting the child from that situation would detrimentally affect the
child. Appellee, on the other hand, believes that the child should continue to live in Lawrence
County, where she shares deep roots and loving relationships with numerous members of the
extended family.
{¶ 60} The evidence leaves no doubt that both appellant and appellee are excellent
parents who deeply love and care for their child and that either household would be an
appropriate place for the child to live. Thus, the trial court faced an impossible choice between
two loving parents. If the court designated appellant the residential parent, then the court would
remove the child from Lawrence County and the connections that the child has established with
her school and community and, most likely, significantly reduce the amount of time that appellee
spent with the child. If, on the other hand, the court designated appellee the residential parent,
LAWRENCE, 16CA16 30
the court would significantly reduce the amount of time appellant spends with the child, but
maintain the child’s Lawrence county roots. When faced with this agonizing decision, the trial
court determined that keeping the child in Lawrence County, where she shares significant ties to
her family and the community, will better serve her interests than relocating to a new home, a
new school, and a new community. We are unable to find anything in the record that leads us to
believe that the trial court acted unreasonably, arbitrarily, or unconscionably when it designated
appellee the child’s residential parent. See generally In re C.S., 12th Dist. Warren No.
CA2015-05-041, 2015-Ohio-3937, ¶28 (concluding that trial court did not abuse its discretion by
designating father residential parent when mother moved to California and when designating
mother residential parent would uproot child from existing community); Lopez v. Lopez, 10th
Dist. Franklin No. 04AP-508, 2005-Ohio-1155 (determining that trial court did not abuse its
discretion by terminating shared parenting decree and designating father child’s residential parent
when mother relocated to West Virginia). The trial court had a rational basis to conclude that
keeping the child in Lawrence County, and that designating appellee her residential parent, would
be in her best interest. We are also unable to find that the court acted as no conscientious judge
would have, that the court’s decision grossly violates fact or logic, or that its decision reflects
passion, bias, a perversion of will, or the defiance of judgment. Additionally, substantial
competent and credible evidence supports the trial court’s decision. Even if we were persuaded
that we would have opted to decide the matter differently, the abuse-of-discretion standard of
review does not allow us to simply substitute our judgment for that of the trial court.
{¶ 61} Appellant also asserts that the trial court failed to consider that she has been the
child’s primary caregiver and that she has been the parent primarily responsible for the child’s
LAWRENCE, 16CA16 31
day-to-day care and decision-making. The court, however, found that the parties’ shared
parenting plan indicated that the parties shared equal decision-making and appeared to be
unconvinced that appellant made the majority of the decisions concerning the child. The court
noted that appellant “state[d] several times that she was the primary decision maker during
portions of the shared parenting agreement, even though that would seem to conflict with the
rights under shared parenting.”
{¶ 62} Furthermore, even if appellant was the child’s primary caregiver, a party’s status
as a child’s primary caregiver is a relevant, but not a controlling, factor that a court must consider
when it evaluates a child’s best interest. Bechtol, 49 Ohio St.3d at 23 (explaining that a trial
court “should give due consideration to which parent performed the role as primary caregiver”);
In re Maxwell, 8 Ohio App.3d 302, 306, 56 N.E.2d 1218 (1982); accord Carr v. Carr, 4th Dist.
Washington No. 00CA26, 2001-Ohio-2466, 2001 WL 569296; Holm v. Smilowitz, 83 Ohio
App.3d 757, 776, 615 N.E.2d 1047 (1992); Thompson v. Thompson, 31 Ohio App.3d 254, 257,
511 N.E.2d 412 (4th Dist.1987); Chelman v. Chelman, 2nd Dist. Greene App. No.2007 CA 79,
2008–Ohio–4634, ¶43; Glover v. Glover, 66 Ohio App.3d 724, 730, 586 N.E.2d 159 (1990).
“[A] court that fails to consider the primary care giving of a parent ignores the benefits likely to
flow to the child from maintaining day to day contact with the parent on whom the child has
depended for satisfying his basic physical and psychological needs.” Kelly v. Kelly, 2nd Dist.
Miami No. 2001-CA-52, 2002-Ohio-1204, 2002 WL 360656; Thompson, 31 Ohio App.3d at 257
(stating that allowing “the parent who has been the primary caregiver to continue having custody
is often necessary for the best interest of the child”). However, “a party’s role as the primary
caregiver is not given presumptive weight over other relevant factors.” Maxwell at ¶43; Vance
LAWRENCE, 16CA16 32
v. Vance, 151 Ohio App.3d 391, 2003-Ohio-310, 784 N.E.2d 172, 2003 WL 164806, ¶38 (2nd
Dist.). However, a trial court should not rely on a determination of the primary caretaker as a
substitute for a searching factual analysis of the parties’ relative parental capabilities and the
child’s psychological and physical needs. McCoy v. Sullivan, 4th Dist. Scioto No. 16CA3751,
2016-Ohio-8276, ¶20; Carr; Thompson.
{¶ 63} In the case sub judice, even if we believe it is “ * * * ill advised and imprudent to
disrupt the pattern to which the child has become accustomed,” our conclusion would fall “short
of the oft-repeated test that a finding of abuse of discretion must imply a decision that is ‘ * * *
unreasonable, arbitrary or unconscionable.’” Bechtol, 49 Ohio St.3d at 23, quoting Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 64} Additionally, to the extent that appellant claims that the trial court’s written
decision fails to consider that she was the child’s primary caregiver, we again point out that
appellant did not file a Civ.R. 52 request findings of fact and conclusions of law. Thus, the trial
court was not obligated to set forth any specific factual findings or legal conclusions relating to
the child’s primary caregiver. Moreover, in the absence of evidence to the contrary, we presume
that the trial court considered all relevant best interest factors, including whether a parent
functioned as a child’s primary caregiver. Carr at *4. In the case at bar, we find no evidence to
suggest that the trial court failed to consider the child’s primary caregiver when evaluating her
best interest. We therefore presume that the trial court gave it appropriate consideration.
{¶ 65} We certainly understand that appellant must be heartbroken and devastated that
she does not see her daughter as often as she would like, or as often as she did before she
relocated to Louisville. Appellant’s move to Louisville meant, however, that one of the
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parties–either appellant or appellee–would be unlikely to see the child as frequently as the party
had before appellant’s relocation. The distance between appellant’s and appellee’s homes
would make mid-week visits, dinners, or exchanges nearly impossible during the school year.
Consequently, one of the parties was bound to be displeased with the trial court’s decision. A
party’s unhappiness does not, however, by itself demonstrate that the court abused its discretion
or otherwise erred. Instead, as we previously explained, an abuse of discretion ordinarily
implies an unreasonable, arbitrary, or unconscionable decision.
{¶ 66} Based upon all of the evidence presented in the case sub judice, “a reasonable
court could have awarded residential parent status to [appellant] with whom [the child] had
primarily resided.” Maine v. Jones, 7th Dist. Mahoning No. 06MA191, 2007-Ohio-5043, 2007
WL 2781239, ¶60. The court’s failure to do so, however, “does not mean that the court’s
decision to award such status to [appellee] instead was unreasonable or arbitrary.” Id. Rather,
the evidence in the case sub judice reasonably could support a decision to designate either
appellant or appellee the child’s residential parent. The trial court was in the best position to
evaluate the witnesses’ demeanor, attitude, and credibility in order to fashion a custody order that
would promote the child’s best interest. We simply cannot substitute our opinion for that of the
trial court simply because the written record might lead us to a different conclusion.
Accordingly, we are unable to conclude that the trial court abused its discretion by terminating
the shared parenting decree and by designating appellee the child’s residential parent.
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C
PARENTING TIME MODIFICATION
{¶ 67} Appellant also argues that the trial court abused its discretion by terminating the
shared parenting plan when it simply could have modified the parties’ parenting time
arrangement.
{¶ 68} R.C. 3109.04(E)(2)(a) and (b) govern modifications to shared parenting plans and
state:
(a) Both parents under a shared parenting decree jointly may modify the
terms of the plan for shared parenting approved by the court and incorporated by it
into the shared parenting decree. Modifications under this division may be made
at any time. The modifications to the plan shall be filed jointly by both parents
with the court, and the court shall include them in the plan, unless they are not in
the best interest of the children. If the modifications are not in the best interests
of the children, the court, in its discretion, may reject the modifications or make
modifications to the proposed modifications or the plan that are in the best interest
of the children. * * * *
(b) 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.
{¶ 69} In the case at bar, the parties did not jointly agree to a modification. Thus, R.C.
3109.04(E)(2)(a) does not apply. Appellant requested a modification, and thus, R.C.
3109.04(E)(2)(b) could apply, so long as the court found that the modification is in the child’s
best interest. The court determined, however, that shared parenting is no longer in the child’s
best interest. The court’s finding necessarily encompasses a conclusion that maintaining the
shared parenting plan with modifications to the parties’ parenting time is not in the child’s best
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interest. Consequently, the trial court was not obligated to modify the parties’ parenting time
arrangement. Instead, the court appropriately exercised its discretion and determined that shared
parenting no longer is in the child’s best interest.
{¶ 70} Accordingly, based upon the foregoing reasons, we overrule appellant’s fifth,
sixth, and seventh assignments of error.
IV
{¶ 71} In her eighth assignment of error, appellant asserts that the trial court abused its
discretion by finding that a change in circumstances occurred. She contends that her relocation
does not, by itself, demonstrate a change in circumstances.
{¶ 72} Initially, we question appellant’s assertion that the court found that her relocation
constituted a “change in circumstances” within the meaning of R.C. 3109.04(E)(1)(a). The trial
court’s decision regarding a “change in circumstances” reads as follows:
[R.C. 3109.04(F)(1)(d)] deals with the child’s adjustment to the child’s
home, school and community. [The child] has moved from her mother’s home to
her father’s home, after her mother moved to the Louisville area. [The child]’s
school, church and community connections remain intact. The child’s
adjustment to these changes in circumstances are as expected.
{¶ 73} Although the court appears to have addressed the “changes” that the child
experienced after the child moved from appellant’s household to appellee’s household and how
she has since adjusted to her home, school, and community, we have found nothing in the court’s
decision to indicate that the court found appellant’s relocation to Louisville constituted a “change
in circumstances” within the meaning of R.C. 3109.04(E)(1)(a). Additionally, as we previously
indicated, (1) R.C. 3109.04(E)(2)(c) does not require a court to find a change in circumstances
before it may terminate a shared parenting decree, and (2) R.C. 3109.04(E)(1)(a) is inapplicable
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to the facts in the case sub judice. Consequently, the trial court had no need to find a change in
circumstances and any such finding in its decision is superfluous.
{¶ 74} Accordingly, based upon the foregoing reasons, we overrule appellant’s eighth
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.