Molzon v. Molzon ( 2022 )

[Cite as Molzon v. Molzon, 2022-Ohio-1634.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
BERT MOLZON, CASE NO. 2021-A-0024
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas
JEANNE MOLZON,
Trial Court No. 2015 DR 00055
Defendant-Appellant.
OPINION
Decided: May 16, 2022
Judgment: Affirmed in part and remanded
Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellee).
Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Defendant-Appellant).
Edith M. Jonas, P.O. Box 684, Andover, OH 44003 (Guardian ad litem).
MARY JANE TRAPP, J.
{¶1} Appellant, Jeanne Molzon (“Ms. Molzon”), appeals the judgments of the
Ashtabula County Court of Common Pleas that overruled her objections and adopted the
magistrate’s decision that terminated the parties’ shared parenting plan, granted custody
to appellee, Bert Molzon (“Mr. Molzon”), and terminated Mr. Molzon’s child support
obligation.
{¶2} Ms. Molzon raises four assignments of error on appeal, contending that the
magistrate (1) erred in denying her motion to continue after her counsel was granted leave
to withdraw the day before trial, (2) failed to find a change of circumstances before
granting Mr. Molzon’s motion to terminate shared parenting and designating him as the
sole residential parent and legal custodian of their two minor children, (3) failed to
consider the best interest factors under R.C. 3109.04(F), and (4) erred in terminating Mr.
Molzon’s child support obligation.
{¶3} After a careful review of the record and pertinent law, we find Ms. Molzon’s
first three assignments of error to be without merit. Firstly, Ms. Molzon failed to
demonstrate prejudice from the magistrate’s ruling denying her motion for a continuance
and/or offer any additional evidence or testimony that would have likely changed the
outcome of the hearing on the motion to terminate shared parenting.
{¶4} Secondly, the magistrate was not required to find a change in
circumstances before terminating the shared parenting plan. R.C. 3109.04(E) requires
only a finding that doing so is in the children’s best interest. Thirdly, there is no
requirement that the magistrate explicitly state the factors of R.C. 3109.04(F). A plain
reading of the magistrate’s findings and decision gives no indication that the magistrate
failed to consider the nonexclusive list of R.C. 3109.04(F) factors.
{¶5} Lastly, regarding Ms. Molzon’s fourth assignment of error as to the
termination of child support, we remand this matter to the trial court because it appears
from the record before us that the trial court did not complete and file a child support
worksheet, inasmuch as no financial information was submitted. Thus, we have nothing
before us to review, and any determination regarding the trial court’s termination of child
support would be premature.
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{¶6} We affirm the judgments of the Ashtabula County Court of Common Pleas
in part since we dismiss Ms. Molzon’s fourth assignment of error as unripe and remand
to the trial court to determine the parties’ child support obligations.
Substantive and Procedural Facts
{¶7} In 2017, the Ashtabula County Court of Common Pleas granted the parties
a divorce in which the parties agreed to a shared parenting plan for their two minor
children, R.M., born in 2006, and J.M., born in 2011.
{¶8} Several years later, at the start of the COVID epidemic in January 2020, Mr.
Molzon filed a “Motion to Terminate the Shared Parenting Plan and Modify Mother’s
Time.” At the time the motion was filed, Ms. Molzon had the children from Monday until
Wednesday and every other weekend, and Mr. Molzon paid a child support obligation of
$1,697.66. In his affidavit attached to his motion, Mr. Molzon attested that he and Ms.
Molzon were having problems with their older daughter’s schooling, as well as difficulty
communicating, and that it would be in the children’s best interests that shared parenting
be terminated and he be designated the residential parent and legal custodian.
{¶9} Mr. Molzon filed several other motions, including a motion for a guardian ad
litem (“GAL”) to be appointed for the children and a motion for the parties to communicate
via Our Family Wizard (“OFW”), a mobile application for co-parenting that facilitates and
tracks communication, helps coordinate child duties, and stores important information.
He also filed a motion seeking an independent psychological investigation due to Ms.
Molzon’s alleged erratic behavior and confrontations she was having with their daughter,
R.M. Finally, Mr. Molzon sought an emergency ex parte motion to suspend Ms. Molzon’s
parenting time and an ex parte emergency motion to enroll R.M. in online schooling.
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{¶10} The magistrate issued an ex parte order granting Mr. Molzon’s emergency
motion to suspend Ms. Molzon’s parenting time, finding it was in the best interest and
welfare of the minor children. Mr. Molzon’s emergency motion to enroll R.M. in online
schooling was also granted.
{¶11} The magistrate held a full hearing, during which the parties reached an
interim agreement that included a new parenting schedule providing Ms. Molzon
parenting time with the children every other weekend and additional parenting time after
school on Mondays, Tuesdays, and Wednesdays with their son, J.M. The parties also
agreed to communicate via OFW, and a GAL was appointed.
{¶12} At a pretrial several months later, the parties agreed to adjust their parenting
time with the children on an alternative week on/week off schedule, and the trial was
continued in order to allow the GAL time to speak with the children since their meeting
was delayed due to restrictions associated with the COVID epidemic.
{¶13} At the final pretrial, the parties agreed that both children would undergo
complete mental health evaluations.
Motion for a Continuance
{¶14} On the day before trial, Ms. Molzon, pro se, filed a motion requesting a
continuance because she terminated her attorney and was seeking new counsel. On the
same day, the trial court denied the motion and granted her attorney’s motion to withdraw.
On the day of trial, Ms. Molzon orally moved for a continuance due to her counsel’s
withdrawal:
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{¶15} “[The Court]: Yesterday, prior to the hearing, Ms. Molzon’s attorney of
record was allowed to withdraw because the filing indicated, Ms. Molzon, that you had
terminated her services, correct?
{¶16} “[Ms. Molzon]: Oh, sorry. Yes.
{¶17} “[The Court]: Okay. You filed then a motion for an emergency continuance.
Actually, it wasn’t a motion. It was a letter to the Court that was improperly served on the
parties. The Court did consider it, though, considering the circumstances, and denied the
motion. You have another motion?
{¶18} “[Ms. Molzon]: Ah, just that I would like to be granted a continuance for, like
60 days, even 30 days, so I can seek counsel so I have legal representation, ‘cause I
don’t know what I’m doing.
{¶19} “[The Court]: Ms. Kurt? (Mr. Molzon’s counsel)
{¶20} “[Ms. Kurt]: Your Honor, my client actually has no position on the
continuance.
{¶21} “[The Court]: Ms. Jonas? (the GAL)
{¶22} “[Ms. Jonas]: Ma’am, I would oppose that motion for continuance. These
children have been in limbo for several months, and I think a resolution of this case would
be in their best interests.
{¶23} “[Ms. Kurt]: My client would concur with the Guardian, given the Guardian’s
statement, Your Honor.
{¶24} “[The Court]: Okay. This matter - - let’s see - - it was filed in January. We
had our final pretrial June 8, 2020. The matter was set for two days of hearings four
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months ago after the COVID crisis had been dealt with by this Court, so at this point I am
denying the continuance and I am proceeding today.”
{¶25} Ms. Molzon was present for the trial but did not participate in questioning
witnesses and did not present any witnesses or exhibits.
Termination of Shared Parenting Hearing
{¶26} Prior to the start of trial, Ms. Molzon filed a motion for the court to conduct
in camera interviews with the children, which the court granted. Mr. Molzon also withdrew
his motion for an independent psychological evaluation. Mr. Molzon and the GAL testified
at the hearing.
{¶27} Mr. Molzon testified that his primary concern was the stability of the children
because Ms. Molzon was not cooperative with shared parenting, she did not keep him
informed of the activities, she did not respond to OFW, and she responded to text
messages infrequently. Mr. Molzon provided several purported examples.
{¶28} For instance, Mr. Molzon believed J.M. had a respiratory problem, but Ms.
Molzon refused to respond to his requests to cooperate with a medical examination. He
also attempted to arrange for flu shots for the children, but she disagreed and refused her
consent. One of Ms. Molzon’s adult children (instead of Ms. Molzon) informed Mr. Molzon
of a serious incident between J.M. and a neighbor. In fact, her two adult children often
relayed information to Mr. Molzon regarding the children. In addition, R.M. started to
display behavioral difficulties, including inappropriate communications with a boy via her
iPad, and vaping. R.M. told Mr. Molzon that Ms. Molzon allowed her to vape so long as
she did not use “real things.”
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{¶29} Mr. Molzon further testified that he initially filed his motion because R.M.
was having problems with school and because of her mental health, including postings of
suicide ideation on her social media, which Ms. Molzon’s older daughter brought to his
attention. Both parents decided to enroll R.M. in school online, but Ms. Molzon withdrew
her permission without explanation. In the month before he filed his motion, i.e.,
December 2019, Ms. Molzon refused to let R.M. return home after R.M. declined to
participate in a family event. She texted Mr. Molzon to come and get R.M. because she
did not want her in the house.
{¶30} Mr. Molzon also testified that after the GAL filed her report, Ms. Molzon
shared the report with the children, and R.M. threatened to commit suicide. He believes
Ms. Molzon often shared inappropriate information with the children regarding himself and
the custody proceedings.
{¶31} The GAL documented her findings in a report. Among other observations,
the GAL noted Ms. Molzon’s refusal to co-parent with Mr. Molzon in accordance with the
shared parenting plan. Ms. Molzon viewed Mr. Molzon’s attempts to communicate with
her as trying to control her, and for the most part, Ms. Molzon did not respond to Mr.
Molzon. With those issues in mind, the GAL recommended that Mr. Molzon be named
the legal custodian and residential parent for school purposes; that Ms. Molzon have
visitation on alternative weekends with an extra hour on her weekend during the school
year; and that the parties share school breaks. The GAL “hesitantly agreed” to alternative
weeks during the summer. Lastly, she recommended counseling for Ms. Molzon to learn
better parenting skills and to address her personal issues.
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{¶32} At trial, the GAL testified to her report and her findings that Ms. Molzon
appears to use the children as a conduit to Mr. Molzon. She believed that Mr. Molzon
would further communication and facilitate shared parenting between them but that Ms.
Molzon would not. The GAL further testified that after she submitted her report, Ms.
Molzon called R.M. and informed her that she would never see her again, which
devastated R.M.
{¶33} During the in camera interviews, the children confirmed the incidents
between Ms. Molzon and R.M. They also discussed schedules, how each parent handled
the other, and how each parent disciplined the children.
{¶34} The magistrate found that there was no evidence that either parent denied
the other parenting time on a continuous basis. However, due to Ms. Molzon’s lack of
effort to share information, her failure to respond to Mr. Molzon’s requests to discuss the
children’s needs, and her inability to consult with him regarding their needs, the
magistrate found that shared parenting was no longer in the best interests of the children.
{¶35} The magistrate terminated the shared parenting plan, named Mr. Molzon as
the residential parent and legal custodian of the children, and granted parenting time with
Ms. Molzon every other weekend and one evening a week.
{¶36} The magistrate also terminated Mr. Molzon’s child support order and
ordered a recalculation of child support since no financial information had been submitted
at trial.
Procedural Ping-Pong
{¶37} Shortly after trial, Ms. Molzon obtained counsel, filed preliminary objections
to the magistrate’s decision, and obtained an extension to file supplemental objections
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pending the filing of the hearing transcript. In addition, she filed a motion to set aside the
magistrate’s decision that terminated Mr. Molzon’s child support obligation. She alleged
that the magistrate never found a change of circumstances or calculated a new child
support worksheet.
{¶38} Before Ms. Molzon had the opportunity to file supplemental objections, the
trial court issued a judgment entry adopting the magistrate’s decision.
{¶39} Shortly afterwards, Ms. Molzon filed a motion to modify allocation of
parental rights and responsibilities, alleging there was a change of circumstances
because R.M. was residing with her 100% of the time and J.M. was residing with her 50%
of the time.
{¶40} Ms. Molzon filed her supplemental objections to the magistrate’s decision.
Shortly thereafter, she filed a motion to vacate the trial court’s order adopting the
magistrate’s decision because Mr. Molzon prepared and submitted the judgment entry
without notifying Ms. Molzon. Further, the trial court had made no mention of Ms.
Molzon’s preliminary objections and issued the entry prior to the deadline for the filing of
her supplemental objections.
{¶41} Ms. Molzon filed an appeal of the trial court’s judgment entry adopting the
magistrate’s decision in this court.
{¶42} We remanded the matter to allow the trial court to rule on Ms. Molzon’s
motion to vacate. On remand, the trial court granted Ms. Molzon’s motion to vacate
because it had adopted the magistrate’s decision before ruling on her timely objections.
The trial court scheduled a hearing on her objections. Ms. Molzon filed a motion to
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dismiss her appeal in this court, which we granted, finding the appeal settled and
dismissed.
{¶43} After a video conference pretrial with the parties and their respective
counsel, the magistrate issued an order noting that the issues before the court were Ms.
Molzon’s two motions to modify parental rights and responsibilities. Since the objections
to the magistrate’s decision were yet unresolved, the parties agreed that the order
providing for a weekly rotating parenting schedule would remain in place. Ms. Molzon
also moved the court to reinstate the child support order and a motion to reactivate the
GAL, which the magistrate granted.
{¶44} The trial court issued a judgment entry overruling Ms. Molzon’s objections,
and Ms. Molzon filed the instant appeal.
{¶45} The trial court issued a new judgment entry adopting the magistrate’s
decision after overruling Ms. Molzon’s objections, and Ms. Molzon filed an amended
appeal. Lastly, the trial court stayed Mr. Molzon’s reinstated child support obligation
pending this appeal.
{¶46} Ms. Molzon raises four assignments of error for our review:
{¶47} “[1.] The trial court erred as a matter of law and abused its discretion in
denying the appellant’s motion for continuance in order to obtain counsel.
{¶48} “[2.] The trial court erred as a matter of law and abused its discretion by
granting the appellee’s motion to terminate shared parenting and designating the appellee
as the sole residential parent and legal custodian of the minor children.
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{¶49} “[3.] The trial court erred as a matter of law and abused its discretion in
failing to consider the best interest factors outlined under Ohio Revised Code Section
3109.04(F).
{¶50} “[4.] The trial court erred as a matter of law and abused its discretion in
modifying and terminating the appellee’s child support obligation.”
Standard of Review
{¶51} This court has held that decisions involving the allocation of parental rights
and responsibilities are accorded great deference on review. In re K.R., 11th Dist.
Trumbull No. 2010-T-0050, 2011-Ohio-1454, ¶ 28; Miller v. Miller, 37 Ohio St.3d 71, 74,
523 N.E.2d 846 (1988). Thus, any judgment of the trial court involving the allocation of
parental rights and responsibilities will not be disturbed absent a showing of an abuse of
discretion. In re K.R. at ¶ 28; Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d
1159 (1997). Further, we review a judgment of the trial court adopting the decision of its
magistrate for an abuse of discretion. In re K.R. at ¶ 28. In addition, an appellate court
reviews the trial court’s termination of a shared parenting plan and child support orders
for an abuse of discretion. Id.; Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028(1989).
{¶52} An abuse of discretion is the “‘failure to exercise sound, reasonable, and
legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is
reviewing a pure issue of law, the mere fact that the reviewing court would decide the
issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on
review has been confided to the discretion of the trial court, the mere fact that the
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reviewing court would have reached a different result is not enough, without more, to find
error. Id.
{¶53} The highly deferential abuse of discretion standard is particularly
appropriate in allocation of parental rights and responsibilities cases since the trial judge
is in the best position to determine the credibility of the witnesses and there “‘may be
much that is evident in the parties’ demeanor and attitude that does not translate well to
the record.’” In re K.R. at ¶ 30, quoting Wyatt v. Wyatt, 11th Dist. Portage No. 2004-P-
0045, 2005-Ohio-2365, ¶ 13. In so doing, a reviewing court is not to weigh the evidence,
“‘but must ascertain from the record whether there is some competent evidence to sustain
the findings of the trial court.’” Id., quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196,
638 N.E.2d 112 (3d Dist.1994).
Motion to Continue
{¶54} In her first assignment of error, Ms. Molzon contends the trial court erred in
overruling her objection to the magistrate’s decision denying her motion for a continuance
in order to obtain counsel after she dismissed her counsel one day before trial.
{¶55} In reviewing whether a trial court abused its discretion in denying a
continuance, an appellate court weighs any potential prejudice to the movant against the
court’s right to control its docket and the public’s interest in the prompt and efficient
dispatch of justice. In re Zak, 11th Dist. Lake Nos. 2001-L-216, 2001-L-217, and 2011-
L-218, 2003-Ohio-1974, ¶ 29.
{¶56} Some of the objective factors that a reviewing court should consider include
the following: (1) the length of the requested delay; (2) whether the parties have
requested and received other continuances; (3) the inconvenience to the parties,
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witnesses, opposing counsel, and the court; (4) whether the requested delay is for
legitimate reasons or is merely dilatory, purposeful, or contrived; (5) whether the movant
contributed to the circumstances giving rise to the request for a continuance; and (6) any
other relevant factors, depending on the unique circumstances of each case. Id. at ¶ 30;
State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 (1981).
{¶57} A review of Ms. Molzon’s objection to the magistrate’s decision to deny her
motion for a continuance reveals she failed to demonstrate any resulting prejudice, i.e.
she failed to allege any additional evidence or testimony she would have presented that
would have likely changed the outcome of the trial.
{¶58} Analyzing the facts with the Unger factors in mind, we note Ms. Molzon
requested a 60- or 30-day continuance to secure new counsel. While that is not an
unreasonable request for a continuance, Ms. Molzon terminated her attorney because
she was unsatisfied with her representation one day before and with full knowledge of the
impending trial. Trial was originally scheduled for June of 2020; however, due to COVID-
related delays (primarily the GAL meeting with the children), the trial was continued until
October. The GAL was concerned for the children because they were in a state of “limbo”
for so long.
{¶59} While she proceeded pro se during the trial and did not cross-examine Mr.
Molzon, make any objections, or present her own witnesses and evidence, Ms. Molzon
was given numerous opportunities to present additional evidence and testimony after she
obtained counsel shortly after trial. Ms. Molzon filed preliminary objections and
supplemental objections, and the trial court granted her motion to vacate so that the trial
court could hear and rule on her objections. In all of these motions and filings, Ms. Molzon
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never alleged any prejudice from the magistrate’s denial of her motion for a continuance
or offered any additional testimony or evidence that she would have presented. She had
the opportunity to make a compelling argument to vacate the magistrate’s decision with
her objections and to proffer any key evidence she was not able to put forward at trial.
Quite simply, there is no abuse of discretion in failing to grant a continuance where the
continuance would not have changed the outcome of the case. In re K.J., 2018-Ohio-
471, 107 N.E.3d 50, *58 (10th Dist.) (Even if the mother had been able to testify to newly
revealed progress on her case plan, it is unlikely the information would have changed the
outcome of the case).
{¶60} In In re Dryer, 2d Dist. Montgomery No. 18040, 2000 WL 331770 (Mar. 31,
2000), the appellant similarly complained that the trial court held a patently unfair hearing
and prejudiced her by allowing opposing counsel to lead witnesses without objection. Id.
at *2. The Second District aptly stated, “On the record before us, we cannot find that the
trial court abused its discretion when it denied [the appellant’s] motion. No doubt, she
was impaired in supporting her claims when she was required to proceed unrepresented.
The matters of which she complains in her second assignment of error demonstrate that.
However, frustration is not prejudice, and [the appellant] has not stated in her brief to this
court what matters she was prevented from putting before the court because she was
unrepresented.” (Emphasis sic.) Id. at *3.
{¶61} After considering the circumstances surrounding the denial of the motion
for a continuance, and the Unger factors, we cannot say the trial court abused its
discretion in overruling Ms. Molzon’s objection to the magistrate’s decision to deny her
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motion for a continuance. Ms. Molzon failed to set forth any evidence she was precluded
from presenting that would have changed the outcome of the trial court’s determination.
{¶62} Ms. Molzon’s first assignment of error is without merit.
Change of Circumstances
{¶63} In her second assignment of error, Ms. Molzon contends the trial court erred
in adopting the magistrate’s decision terminating the parties’ shared parenting plan and
designating Mr. Molzon as the residential parent and legal custodian of the minor children
without finding a change of circumstances pursuant to R.C. 3109.04(E) or delineating the
best interest factors outlined in R.C. 3109.04(F). Since Ms. Molzon raises whether the
trial court failed to consider the best interest factors pursuant to R.C. 3109.04(F) in her
third assignment of error, we will address that portion of her second assignment of error
with her third assignment of error.
{¶64} R.C. 3109.04(E)(2)(c) permits a court to terminate a shared parenting plan
that is made a part of the final decree. A finding of “‘[a] change of circumstances is not
required before terminating shared parenting.’” Harrison v. Harrison, 2d Dist. Clark No.
2018-CA-105, 2019-Ohio-2835, ¶ 6, quoting Curtis v. Curtis, 2d Dist. Montgomery No.
25211, 2012-Ohio-4855, ¶ 7. R.C. 3109.04(E)(2)(c) requires only that the court find that
terminating the shared parenting decree is in the child’s best interest. Id.{¶65} Thus, R.C. 3109.04(E)(2)(c) provides, in relevant part: “The court may
terminate a prior final shared parenting decree that includes a 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.” (Emphasis added.)
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{¶66} In In re K.R., supra, we explained that “R.C. 3109.04(E)(2)(c), which
addresses termination of a shared parenting plan, merely requires the trial court to find
that shared parenting is not in the best interest of the child. Thus, while modification
requires the court to find a change in circumstances in addition to the child’s best interest,
termination only requires the court to find that termination of the plan is in the child’s best
interest.” Id. at ¶ 47.
{¶67} The Supreme Court of Ohio recently clarified this issue in Bruns v. Green,
163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396, where it determined that a trial court
need consider only the best interest of the child when deciding whether to terminate a
shared parenting plan and which parent to designate as the residential and custodial
parent of a minor child. Id. at ¶ 1. Stated differently, the Supreme Court held that a trial
court does not have to find a change of circumstances in order to designate a parent the
residential parent and legal custodian of a minor child after terminating a shared parenting
plan and decree. Id.
{¶68} Ms. Molzon’s second assignment of error is without merit.
Best Interest Factors
{¶69} In her third assignment of error, Ms. Molzon contends the trial court erred
in adopting the magistrate’s decision when the magistrate’s decision failed to consider
the best interest factors pursuant to R.C. 3109.04(F).
{¶70} R.C. 3109.04(F)(1) and (F)(2) enumerate certain factors a court must
consider in determining whether shared parenting is in the best interests of the child. This
list is nonexclusive as the trial court is not limited to the statutory factors. Brandt v. Brandt,
11th Dist. Geauga No. 2012-Ohio-3064, 2012-Ohio-5932, ¶ 13. Though there should be
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some indication in the judgment entry that the trial court considered the best interests of
the child pursuant to R.C. 3109.04(F), there is no requirement it make specific findings in
its entry as to each and every factor. Id.; see also In re S.S., 11th Dist. Geauga No. 2010-
G-2997, 2012-Ohio-120, ¶ 23.
{¶71} The factors found in R.C. 3109.04(F)(1) include: (a) the wishes of the child’s
parents regarding the child’s care; (b) the wishes or concerns of the child as expressed
to the court; (c) the child’s interaction and interrelationship with his parents, siblings, and
any other person who may significantly affect the child’s best interest; (d) the child’s
adjustment to his home, school, and community; (e) the mental and physical health of all
persons involved; (f) the parent more likely to honor and facilitate visitation and
companionship rights approved by the court; (g) whether either parent has failed to make
all child support payments; (h) whether either parent previously has been convicted of or
pleaded guilty to any criminal offense; (i) whether the residential parent or one of the
parents subject to a shared parenting decree has continuously and willfully denied the
other parent his or her right to visitation in accordance with an order of the court; and (j)
whether either parent has established a residence, or is planning to establish a residence,
outside this state. Brandt at ¶ 14.
{¶72} The factors found in R.C. 3109.04(F)(2) include: (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 other parent; (c) the history of, or potential for, domestic abuse; (d) the geographic
proximity of the parents to one another; and (e) the recommendation of the guardian ad
litem. Brandt at ¶ 15.
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{¶73} Although the magistrate’s decision was not explicit in delineating the
specific R.C. 3109.04(F) factors, a plain reading of the decision reveals the magistrate
considered all of the factors. Specifically, the magistrate found that R.M. was having
trouble adjusting to school; she was falling behind when she was with Ms. Molzon; and
she was failing math. There were several incidents involving R.M. and Ms. Molzon,
including Ms. Molzon sharing the GAL’s report with R.M. R.M. was experiencing
behavioral difficulties, including suicide ideation, and both children were in counseling.
The magistrate also found there was no evidence that either parent denied the other
parenting time on a continuous basis.
{¶74} In addition, the magistrate conducted in camera interviews with the minor
children. The magistrate found that Ms. Molzon made no effort to share information with
Mr. Molzon, and that she did not respond to Mr. Molzon’s requests to discuss the
children’s needs or consult him regarding their needs.
{¶75} The magistrate considered the GAL’s testimony that Mr. Molzon would
encourage the children to contact Ms. Molzon but that Ms. Molzon would not do the same.
Critically, the magistrate noted that while she believed Ms. Molzon would honor parenting
orders, she did not believe Ms. Molzon would facilitate shared parenting. The magistrate
considered the recommendation in the GAL’s report that shared parenting terminate and
Mr. Molzon be named the residential and custodial parent. The magistrate also
considered that there was no history of domestic abuse and that neither party indicated
an intent to leave the state of Ohio. Finally, inasmuch as no financial information was
offered, the magistrate could not assess child support obligations after terminating the
shared parenting plan.
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{¶76} Thus, contrary to Mr. Molzon’s assertions, there is no indication that the
magistrate failed to consider the nonexclusive factors set forth in R.C. 3109.04(F)(1) and
(2). As we stated in Murray v. Murray, 11th Dist. Portage No. 2007-P-0070, 2018-Ohio-
3242, “This court has recognized, as have many of the other appellate districts, that, in
making a custody determination, ‘the trial court is not required to expressly consider or
balance [the R.C. 3109.04(F)] factors before awarding custody,’ nor is the court ‘required
to make express findings of fact unless it has a Civ.R. 52 motion before it as long as there
is some indication in the judgment entry that the trial court considered the best interests
of the children.’” Id. at ¶ 36, quoting In re L.R.S., 11th Dist. Portage Nos. 2016-P-0050
and 2016-P-0051, 2017-Ohio-2604, ¶ 25. The magistrate’s decision in this case is replete
with indications that the children’s best interests were thoroughly considered.
{¶77} Ms. Molzon’s third assignment of error is without merit.
Termination of Child Support Obligation
{¶78} In her fourth assignment of error, Ms. Molzon contends the trial court erred
in modifying and terminating Mr. Molzon’s child support obligation without completing or
considering a child support worksheet/schedule.
{¶79} Any review of the trial court’s termination of child support, however, would
be premature. Although the trial court terminated Mr. Molzon’s child support order when
it terminated the shared parenting plan, no financial information was submitted by the
parties. Specifically, the magistrate determined that “[t]he child support order of Bert
Molzon should terminate at the time this Decision is adopted by the Court. A support
order cannot be calculated at this time as no financial information has been submitted by
the Court.” Thereafter, due to the convoluted procedure of this case, the child support
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was initially stayed. The order was reinstated while Ms. Molzon’s motion to vacate was
pending, and the parties returned to alternating parenting weeks. The order was again
stayed pending this appeal.
{¶80} Thus, there is nothing before us to review, and we remand on this limited
basis for the trial court to determine the parties’ child support obligations in light of our
affirmance of the trial court’s judgment adopting the magistrate’s decision terminating the
parties’ shared parenting plan and designating Mr. Molzon as the residential parent and
legal guardian.
{¶81} We affirm the judgments of the Ashtabula County Court of Common Pleas
in part since we dismiss Ms. Molzon’s fourth assignment of error as unripe and remand
to the trial court to determine the parties’ child support obligations.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
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