In re K.S. , 2020 Ohio 6863 ( 2020 )

[Cite as In re K.S., 2020-Ohio-6863.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: K.S. : APPEAL NO. C-190754
TRIAL NO. F16-2613
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 23, 2020
Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Appellant-
Mother,
Berry & Karl, LLC, and Kristie A. Karl, for Appellee-Father.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Mother appeals the decision of the Hamilton County Juvenile Court,
adopting the shared-parenting plan proposed by father. For the reasons set forth
below, we affirm the judgment of the juvenile court.
I. Facts and Procedure
{¶2} Mother and father are the parents of K.S., born on February 28, 2014.
Mother and father were in a relationship from February 2013 to April 2016. The
parties were never married.
{¶3} On December 12, 2016, father filed a petition for visitation. Father
alleged that mother had restricted his access to K.S. On January 3, 2017, mother
filed an opposing petition for custody of K.S. Father then filed a petition for shared
parenting in January 2017, and again in August 2017.
{¶4} Prior to trial, the parties stipulated that shared parenting was in the
best interest of K.S. Both parents submitted proposed shared-parenting plans. The
parties differed on the parenting-time schedule, the right of first refusal for holiday
time, the use of extended/vacation time, and additional parenting time for “special
life events.”
{¶5} Trial was conducted on nine different days, spanning over the course
of 13 months. On June 10, 2019, the magistrate issued a written decision adopting
the shared-parenting plan proposed by father. Mother filed timely objections to the
decision. Following a hearing on the objections, the juvenile court adopted the
magistrate’s decision with one modification. This timely appeal followed.
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II. Law and Analysis
{¶6} In her sole assignment of error, mother argues that the juvenile court
erred in determining the parenting-time schedule and the conditions under which
parenting time takes place.
{¶7} “The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court’s determination will have on the lives of the parties concerned. The knowledge
a trial court gains through observing the witnesses and the parties in a custody
proceeding cannot be conveyed to a reviewing court by a printed record.” Miller v.
Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Therefore, we review the
juvenile court’s decision for an abuse of discretion. Id.; Cwik v. Cwik, 1st Dist.
Hamilton No. C-090843, 2011-Ohio-463, ¶ 41. An abuse of discretion exists only if
“the court's decision regarding the child’s best interests is not supported by
competent, credible evidence.” In re D.M., 1st Dist. Hamilton No. C-140648, 2015-
Ohio-3853, ¶ 11.
A.
{¶8} As a preliminary matter, mother challenges the juvenile court’s refusal
to hear additional evidence related to changes in the parties’ work schedules.
{¶9} The juvenile court generally has broad discretion in deciding whether
to hear additional evidence. See Juv.R. 40(D)(4)(d). However, Juv.R. 40(D)(4)(d)
limits the court’s discretion when “new evidence” arises after the magistrate’s
decision, but before the juvenile court’s hearing on the objections. Maddox v.
Maddox, 2016-Ohio-2908, 65 N.E.3d 88, ¶ 18-19 (1st Dist.). Juv.R. 40(D)(4)(d)
provides:
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OHIO FIRST DISTRICT COURT OF APPEALS
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. Before so ruling, the court may hear additional evidence but may
refuse to do so unless the objecting party demonstrates that the party
could not, with reasonable diligence, have produced that evidence for
consideration by the magistrate.
{¶10} Thus, Juv.R. 40(D)(4)(d) requires the court to accept additional
evidence if the objecting party demonstrates that, with reasonable diligence, it could
not have produced the evidence for the magistrate’s consideration. Maddox at ¶ 14.
“[T]he crux of the analysis is whether the party was put on notice that they would be
reasonably expected to introduce the evidence at the hearing before the magistrate. *
* * If the party had notice that they would be reasonably expected to introduce
evidence on the subject, then the trial court has discretion to accept or reject that
evidence.” (Internal citations omitted.) Id.{¶11} Mother contends that she could not have produced evidence of
changes to the parties’ work schedules for the magistrate’s consideration because the
changes occurred after the time of trial. Mother argues that this evidence was
relevant to the allocation of parenting time under the parenting schedule. However,
it is clear that mother anticipated these changes and presented evidence of such
before the magistrate.
{¶12} In her objections, mother alleged that her work hours changed from
12-hour day shifts (10:30 a.m. to 11:00 p.m.) to traditional day shifts (8:00 a.m. to
5:00 p.m.). However, mother always maintained that her work schedule would
change upon completion of her advanced education. In fact, it was mother’s position
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OHIO FIRST DISTRICT COURT OF APPEALS
at trial that her future work schedule would allow her to best provide for K.S.’s needs
while father’s inconsistent work schedule made it difficult for him to provide
structure and stability for K.S.
{¶13} Although mother did not have a job offer at the time of trial, she
adamantly insisted that the change in schedule was not speculative. Mother
“guaranteed” that she would be offered “an office-type job Monday through Friday,
like an eight to four-type.” Mother even fashioned her proposed parenting schedule to
accommodate the anticipated work schedule, stating “I’ll be able to spend more time
with him in the evening, * * * I can focus on [K.S.] and his best interest with the work
schedule that I will be having in the future.” Therefore, the change in mother’s work
schedule was not “new evidence” that could not have been produced for the
magistrate’s consideration.
{¶14} In her objections, mother also alleged that father’s work schedule
changed to a third-shift schedule. However, at the time of trial, father was already
working overnight shifts. A review of the record shows that father’s schedule
alternated between 12-hour night shifts and 8-hour night shifts. Father testified that
he predominately worked 12-hour shifts (from 6:15 p.m. to 6:45 a.m.) with one 8-
hour shift (from 10:45 p.m. to 6:45 a.m.) every other week. Therefore, the fact that
father worked overnight hours was not “new evidence” that could not have been
produced for the magistrate’s consideration.
{¶15} Because mother could not demonstrate an inability to produce
evidence related to changes in the parties’ work schedules before the magistrate, the
juvenile court had discretion to accept or reject that evidence. Under these
circumstances, we cannot find that the juvenile court abused its discretion when it
refused to hear mother’s additional evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
B.
{¶16} Mother’s remaining arguments pertain to the juvenile court’s decision to
adopt father’s proposed shared-parenting plan almost in its entirety. Mother argues
that the allocation of parenting time and the conditions under which parenting time
takes place, including a right of first refusal and use of extended parenting time, are
not in the best interest of K.S.
{¶17} R.C. 3109.04 governs the allocation of parental rights and
responsibilities for the care of a child, including shared parenting. R.C. 3109.04
instructs the court to consider the best interest of the child when allocating parental
rights and responsibilities. In determining the best interest of the children, the juvenile
court must consider all relevant factors, including, but not limited to:
(a) “[t]he wishes of the child’s parents regarding the child's care”;
(b) “the wishes and concerns of the child”;
(c) “[t]he 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) “[t]he child’s adjustment to the child’s home, school, and
community”;
(e) “[t]he mental and physical health of all persons involved”;
(f) “[t]he parent more likely to honor and facilitate court-approved
parenting time rights”;
(g) “[w]hether either parent has failed to make all child support
payments”;
(h) “[w]hether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any criminal
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offense involving any act that resulted in a child being an abused child or
a neglected child”;
(i) “[w]hether 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”;
(j) “[w]hether either parent has established a residence, or is planning to
establish a residence, outside this state.”
R.C. 3109.04(F)(1).
{¶18} Here, the juvenile court determined that both parties are loving, devoted,
and capable parents of K.S. There were no concerns of substance abuse, criminal
activity, or other similar issues. In addition, neither party planned to move outside the
state. Thus, the main points of contention were the parties’ wishes and the parties’
inability to communicate with each other.
{¶19} With respect to the parties’ wishes, the juvenile court found that both
parents wanted to play a significant role in K.S.’s life. Mother wanted K.S. to spend the
majority of his time with her. Mother claimed that K.S. was well adjusted to her home
and was severely distraught after father’s parenting time increased. Mother’s
proposed schedule recommended that mother have K.S. every Monday, Wednesday,
Thursday, and Friday.
{¶20} Contrary to mother’s allegations, the juvenile court found “no objective
reasons to limit the child’s contact with his father.” Instead, the court found that
K.S. was “well adjusted to the homes of both parents.” A review of the record shows
competent, credible evidence supports the court’s finding. K.S.’s paternal aunt and
paternal grandmother testified that K.S. was “a happy little boy” during father’s
parenting time. The guardian ad litem also testified that K.S. was very relaxed and
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OHIO FIRST DISTRICT COURT OF APPEALS
comfortable at father’s home. In addition, K.S.’s daily school reports did not detail
any behavioral issues after father’s parenting time increased. In light of the
credibility of the witnesses and corroborating evidence from the school, the court
determined that mother’s allegations against father were not supported by credible
evidence.
{¶21} On the other hand, father wanted K.S. to spend equal time with both
parents. Father’s proposed schedule (and the one adopted by the court) was a two-week
rotating schedule based on the parties’ work schedules. Father’s schedule recommended
that father have K.S. on Monday, Tuesday, Wednesday, Saturday and Sunday in week
one, and on Thursday and Friday in week two. However, mother took issue with father
working during his parenting time.
{¶22} Father testified that if he had to work during parenting time, then his
mother would care for K.S. The juvenile court found that K.S. was very involved with the
members of his paternal family. The record shows that K.S. was bonded with his
paternal grandmother. The record also shows that K.S. was bonded with father’s two
older children, his paternal siblings. According to father, K.S. is “pretty much attached”
to his brother. Based on these circumstances, the juvenile court determined that it was
in K.S.’s best interest to spend as much time as possible with both families.
{¶23} With respect to the parties’ ability to communicate, the juvenile court
found that mother had “a palpable hatred” toward father. The court described mother’s
communications as “nasty and disrespectful.” The court continued, “She addresses
[father] as though he is her child rather than a co-parent.” At trial, mother admitted that
she did not like father and did not want to communicate with father. The testimony
showed that the parties had engaged in settlement negotiations, participated in
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OHIO FIRST DISTRICT COURT OF APPEALS
mediation, attended therapy sessions, and tried to address concerns through Our Family
Wizard—all to no avail.
{¶24} Based on the lack of effective communication, the juvenile court required
parenting time to take place under conditions with the least potential for conflict, i.e.,
the least amount of communication. Mother wanted a right of first refusal for
holidays, a requirement that the parent take time off work to exercise extended
parenting time, and a requirement that both parents agree to vacation days divided
into less than one-week blocks. However, the court determined that such conditions
required extensive communication between the parties and “may cause unnecessary
conflict * * * that would not be in the best interest of the child.”
{¶25} For the same reasons, the court adopted father’s “special life event”
language with some modification. The “special life event” clause provided: “A
Special Life Event shall override the ‘weekly’ and ‘holiday’ time allocation in this
Plan[.] * * * ‘Special Life Event’ is defined as the wedding, funeral or graduation of
the child’s parent, sibling, grandparent, aunt, uncle or first cousin.”
{¶26} The court believed this provision would “allow [K.S.] to participate in
important events in both families’ lives without causing conflict between the parties.”
The court found no evidence that mother would facilitate a relationship between K.S.
and father on her own volition. Rather, the court found that mother had “gone to
extensive lengths to alienate [K.S.] from his father.” For example, the record shows that
mother did not want K.S. to attend his paternal sister’s elementary school graduation
because it conflicted with his weekly swimming lessons. Consequently, the juvenile
court tailored and limited the “special life events” language to avoid unnecessary
conflicts between the parties.
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{¶27} Based on the evidence presented, the juvenile court determined that it
was in K.S.’s best interest to spend as much time as possible with both parents. The
court also determined that it was in K.S.’s best interest to have minimal conflict
between the parties. The court appropriately considered and applied the factors
listed in R.C. 3109.04(F)(1) in making those determinations. Under these
circumstances, we cannot hold that the juvenile court’s decision constitutes an abuse
of discretion.
{¶28} We accordingly overrule mother’s sole assignment of error.
III. Conclusion
{¶29} Because we find that the juvenile court did not abuse its discretion in
adopting father’s shared-parenting plan, we affirm.
Judgment affirmed.
M YERS , P.J., and W INKLER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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