Bruns v. Green (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Bruns v. Green, Slip Opinion No. 2020-Ohio-4787.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4787
BRUNS, APPELLEE, v. GREEN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Bruns v. Green, Slip Opinion No. 2020-Ohio-4787.]
Domestic relations—R.C. 3109.04—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.
(Nos. 2019-1028 and 2019-1178—Submitted April 7, 2020—Decided October 8,
2020.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No.
18AP-259, 2019-Ohio-2296.
_________________
STEWART, J.
{¶ 1} In this appeal, we are asked to decide whether a trial court must find
a change in circumstances in order to designate a parent the residential parent and
legal custodian of a minor child after terminating a shared-parenting plan and
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decree. After considering the language of R.C. 3109.04, we hold 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. Accordingly, we affirm the judgment of the Tenth
District Court of Appeals, which upheld the decision of the Juvenile Division of the
Franklin County Court of Common Pleas that terminated the shared-parenting plan
between appellant, Marcus Green, and appellee, Kayleigh Bruns, and designated
Bruns as the sole residential and legal custodian of the parties’ minor child.
Facts and Procedural History
{¶ 2} Green and Bruns are the biological parents of a minor child who was
born in 2012. In October 2014, after ending their relationship, Green and Bruns
entered into a shared-parenting plan, which the trial court approved in accordance
with R.C. 3109.04. Under the plan, the parties agreed to joint residential and legal
custody of their child and agreed that Green should be listed as the “school
placement parent” as long as he continued to live in the Westerville School District.
The parties also agreed to equal parenting time; to split the costs of daycare 60/40,
with Green paying the majority; and to split the costs of extracurricular activities
and medical expenses evenly. After approving the shared-parenting plan, the trial
court incorporated it into a final shared-parenting decree, as required by R.C.
3109.04(D)(1)(d).
{¶ 3} Less than a year after the shared-parenting decree was issued, Green
moved the court for full custody of the child. In response, Bruns filed a motion to
terminate shared parenting and to reallocate parental rights and responsibilities in
which she asked the trial court to terminate the shared-parenting plan under R.C.
3109.04(E)(2)(c) or in the alternative, to modify the plan. Green responded by
filing a similar motion requesting termination of the shared-parenting plan or in the
alternative, modification of the plan. In their respective motions, Bruns and Green
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each asked the court for sole residential and legal custody of the child and for an
order directing the other parent to pay child support.
{¶ 4} After holding several hearings over the course of 2017, the trial court
entered a judgment that terminated the shared-parenting plan1 and designated Bruns
as the sole residential parent and legal custodian. The court noted various reasons
why this decision was in the best interest of the child.
{¶ 5} Green appealed to the Tenth District Court of Appeals and argued that
the trial court erred when it terminated the shared-parenting plan and changed the
designation of the child’s residential parent without first finding a change in
circumstances under R.C. 3109.04(E)(1)(a). The Tenth District affirmed the
decision of the trial court. In its decision, the court of appeals determined that
changed circumstances are not required in order to issue a modified decree
allocating parental rights and responsibilities to a single parent, after a prior shared-
parenting plan has been terminated. The court stated that the only relevant
consideration is what is in the child’s best interest.
{¶ 6} Green filed a jurisdictional appeal to this court, raising a single
proposition of law challenging the appellate court’s conclusion that it is not
necessary to find a change in circumstances before making changes to the
designation of residential parent and legal custodian following the termination of a
shared-parenting plan and decree. While Green’s jurisdictional motion was
pending, the Tenth District certified a conflict between its judgment in this case and
the judgment in Wright v. Wright, 5th Dist. Stark No. 2011CA00129, 2012-Ohio-
1560, in which the Fifth District Court of Appeals held that a change-in-
circumstances finding was necessary for modification of the designation of
residential parent and legal custodian following the termination of a shared-
1. R.C. 3109.04(D)(1)(d) requires that an approved shared-parenting plan be incorporated into a
shared-parenting decree that orders shared parenting. Accordingly, when a court terminates a
shared-parenting plan, the shared-parenting decree also terminates. See R.C. 3109.04(E)(2)(c).
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parenting plan. We determined that a conflict exists and also accepted Green’s
jurisdictional appeal. We consolidated the two cases and ordered briefing on the
following question of law:
Does the termination of a shared parenting plan and decree
and subsequent modification of parental rights and responsibilities
under R.C. 3109.04(E)(2) require first a finding of a change in
circumstances under R.C. 3109.04(E)(1)(a)?
157 Ohio St. 3d 1446, 2019-Ohio-4177, 132 N.E.3d 722. We now answer the
question in the negative.
Analysis
{¶ 7} We find that the language and structure of R.C. 3109.04 make clear
that R.C. 3109.04(E)(1)(a) does not apply when there has been a termination of a
shared-parenting plan and decree.
The Language and Structure of R.C. 3109.04
{¶ 8} R.C. 3109.04 establishes the process for allocating parental rights and
responsibilities between the parents of a minor child. R.C. 3109.04(A)(1) provides
that if neither parent requests a shared-parenting arrangement or if the parents fail
to properly file for shared parenting, a trial court is obligated to “allocate the
parental rights and responsibilities for the care of the children primarily to one of
the parents” and then “designate that parent as the residential parent and the legal
custodian of the child.” But when one or both parents have requested shared
parenting and have filed a plan for shared parenting that the court determines is in
the best interest of the child, the trial court may
allocate the parental rights and responsibilities for the care of the
children to both parents and issue a shared parenting order requiring
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the parents to share all or some of the aspects of the physical and
legal care of the children in accordance with [an] approved plan for
shared parenting.
R.C. 3109.04(A)(2).
{¶ 9} In addition to outlining how a trial court initially allocates parental
rights and responsibilities, R.C. 3109.04 also sets forth the procedures to be
followed in the event that either a parent or the trial court finds it necessary to make
changes to a shared-parenting decree or plan. The procedures differ depending on
whether the trial court intends to modify a decree that allocates parental rights and
responsibilities, modify the terms of a shared-parenting plan, or terminate a shared-
parenting decree and plan.
{¶ 10} Under R.C 3109.04(E)(1)(a), a trial court may modify a decree that
allocates parental rights and responsibilities for the care of children, including
shared-parenting decrees. The statute states:
The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds,
based on facts that have arisen since the prior decree or that were
unknown to the court at the time of the prior decree, that a change
has occurred in the circumstances of the child, the child’s residential
parent, or either of the parents subject to a shared parenting decree,
and that the modification is necessary to serve the best interest of
the child. In applying these standards, the court shall retain the
residential parent designated by the prior decree or the prior shared
parenting decree, unless a modification is in the best interest of the
child and one of the following applies:
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(i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to a
change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or
of both parents under a shared parenting decree, has been integrated
into the family of the person seeking to become the residential
parent.
(iii) The harm likely to be caused by a change of
environment is outweighed by the advantages of the change of
environment to the child.
{¶ 11} R.C. 3109.04(E)(1)(a) allows for modification of a shared-parenting
decree. R.C. 3109.04(E)(2)(a) and (b) allow for the modification of the terms of a
shared-parenting plan. Subsection (E)(2)(a) provides that when both parents
subject to a shared-parenting decree have jointly agreed on certain modifications to
the terms of the shared-parenting plan, the court may make those modifications if
it determines that they are in the best interest of the child. Subsection (E)(2)(b)
authorizes the trial court—on its own initiative or at the request of one or both
parents—to modify the terms of the shared-parenting plan when modification is
found to be in the best interest of the child.
{¶ 12} In contrast to subsection (E)(1)(a), which outlines how to modify a
custody decree, and subsections (E)(2)(a) and (b), which outline how to modify the
terms of a shared-parenting plan, subsection (E)(2)(c) provides the procedures for
terminating a shared-parenting decree that includes a shared-parenting plan. R.C.
3109.04(E)(2)(c) states:
The court may terminate a prior final shared parenting
decree that includes a shared parenting plan * * * upon the request
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of one or both of the parents or whenever it determines that shared
parenting is not in the best interest of the children.
{¶ 13} In the event that the court terminates a shared-parenting decree, R.C.
3109.04(E)(2)(d) provides:
Upon the termination of a prior final shared parenting decree
under division (E)(2)(c) of this section, 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.
(Emphasis added.) As noted above, if neither parent has ever filed for shared
parenting, the court, in accordance with the best interest of the child, is to allocate
parental rights and responsibilities primarily to one parent and designate that parent
as the residential parent and legal custodian of the child. See R.C. 3109.04(A)(1).
The Trial Court Correctly Considered Only the Best Interest of the Child
{¶ 14} In its order terminating shared parenting, the trial court specifically
recognized that it was the wish of both parents to terminate the shared-parenting
plan and designate a single residential parent and legal custodian for the minor
child. Following the dictates of R.C. 3109.04(E)(2)(c), the trial court terminated
the shared-parenting plan and decree. And following the plain language of R.C.
3109.04(E)(2)(d), the trial court allocated parental rights and responsibilities under
R.C. 3109.04(A) through (C) as if there had never been a shared-parenting decree
and as if neither party had ever requested shared parenting. This means that the
court allocated residential and legal custody to Bruns based on its determination
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that doing so was in the best interest of the child. R.C. 3109.04(A)(1). We find no
error in the trial court’s decision, given that the trial court followed the plain
language of the statute and awarded custody based on its determination of the
child’s best interest. Nevertheless, Green argues that our case law interprets R.C.
3109.04 differently, requiring the trial court to also find a change in circumstances
before changing the designation of residential parent and legal custodian.
Fisher v. Hasenjager
{¶ 15} Green contends that a termination of a shared-parenting plan and
decree necessarily involves a modification of the parental rights and responsibilities
under the shared-parenting decree. He therefore argues that in addition to
considering the best interest of the child, the trial court had to find, based on facts
arising since the initial allocation of custody, that “a change * * * occurred in the
circumstances of the child, the child’s residential parent, or either of the parents
subject to a shared parenting decree,” R.C. 3109.04(E)(1)(a). Green supports his
argument by citing our decision in Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-
Ohio-5589, 876 N.E.2d 546, in which we held:
A modification of the designation of residential parent and
legal custodian of a child requires a determination that a “change in
circumstances” has occurred, as well as a finding that the
modification is in the best interest of the child. (R.C.
3109.04(E)(1)(a), construed.)
Id. at syllabus.
{¶ 16} Although Green is correct that the facts in Fisher are similar to the
facts here, the legal issue in Fisher is different. In Fisher, there was a shared-
parenting plan and decree that awarded residential and legal custody to both
parents. See id. at ¶ 2. Both parents then moved for a modification of the custody
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order, each seeking sole residential and legal custody. Id. After a hearing in which
both parents testified that they wanted to terminate the shared-parenting plan in
favor of an arrangement in which one parent had custody and the other had
visitation, the trial court found that terminating the shared-parenting plan and
designating the mother as the residential parent and legal custodian was in the best
interest of the child. Id. at ¶ 3, 56. On appeal to the Third District Court of Appeals,
the father argued—as Green does here—that the trial court erred in failing to find
a change in circumstances, as required by R.C. 3109.04(E)(1)(a), prior to modifying
the father’s status as a residential parent and legal custodian. Id. at ¶ 4.
{¶ 17} After reviewing the record, the appellate court construed the trial
court’s actions as a modification of shared parenting rather than a termination of
shared parenting. Id. at ¶ 6. The court then went on to consider whether the
modification of the designation of residential parent amounted to a modification of
the shared-parenting decree under R.C. 3109.04(E)(1)(a)—which would have
required changed-circumstances and best-interest findings—or whether the
modification amounted to a modification of the terms of the shared-parenting plan
under R.C. 3109.04(E)(2)(b), requiring only a best-interest finding. Id. at ¶ 7. The
Third District concluded that the designation of residential parent and legal
custodian is a “term” of a shared-parenting plan and therefore the court had only to
consider the best interest of the child under R.C. 3109.04(E)(2)(b) before modifying
the designation. Id. at ¶ 9.
{¶ 18} Finding its judgment to be in conflict with two different judgments
from the Twelfth District Court of Appeals, the Third District certified the
following question for this court’s review:
Is a change in the designation of residential parent and legal
custodian of children a “term” of a court approved shared parenting
decree, allowing the designation to be modified solely on a finding
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that the modification is in the best interest of the children pursuant
to R.C. 3109.04(E)(2)(b) and without a determination that a “change
in circumstances” has occurred pursuant to R.C. 3109.04(E)(1)(a)?
Fisher, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 1.
{¶ 19} We answered in the negative. In reversing the decision of the Third
District we held that modification of the designation of residential parent and legal
custodian in a shared-parenting plan is a modification of the decree allocating
parental rights and responsibilities, which requires a change-in-circumstances
finding under R.C. 3109.04(E)(1)(a). Id. at ¶ 26. As we explained, a shared-
parenting plan is designed to facilitate the award of joint residential and legal
custody under a shared-parenting decree by providing terms and provisions that the
parties have agreed to in advance. Id. at ¶ 30. These include agreements
concerning parenting time, holiday visitation, school and daycare placement, and
payment of childcare expenses. In contrast, the designation of residential parent
and legal custodian is an integral part of the decree allocating parental rights and
responsibilities. Id. at ¶ 31. And the designation is made by the court in its decree,
not in the shared-parenting plan. Id. Accordingly, we found that the designation
of residential parent and legal custodian cannot be a term of a shared-parenting plan
and thus cannot be modified pursuant to R.C. 3109.04(E)(2)(b). Id. at ¶ 29-31.
Instead it must be modified under the dictates of R.C. 3109.04(E)(1)(a).
{¶ 20} Our decision in Fisher does not support Green’s position here. In
Fisher, the appellate court determined that the trial court’s actions involved a
modification and not a termination of the shared-parenting arrangement. Neither
party in that case challenged that determination on appeal to this court.
Accordingly, we answered the only question before the court, namely, whether a
modification of joint residential and legal custody requires a change-in-
circumstances finding. With the exception of the Fifth District, the court that
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decided the conflict case on appeal, every appellate court in Ohio has found that
when one or both parents move for termination of the shared-parenting plan, R.C.
3109.04(E)(2)(c) applies and a change-in-circumstances finding is not required. In
re A.C., 1st Dist. Hamilton No. C-180088, 2019-Ohio-2891, ¶ 18; Williamson v.
Williamson, 2d Dist. Clark No. 2003 CA 30, 2003-Ohio-6540, ¶ 15; Drees v. Drees,
3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, ¶ 12-14; In re J.L.R., 4th Dist.
Washington No. 08CA17, 2009-Ohio-5812, ¶ 28; Green v. Richards, 6th Dist.
Wood No. WD-12-039, 2013-Ohio-406, ¶ 26, fn. 1; Dobran v. Dobran, 7th Dist.
Mahoning No. 97 CA 166, 1999 Ohio App. LEXIS 4124 (Sept. 1, 1999); In re
A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 32, 47; Hamby v.
Hamby, 9th Dist. Summit No. 23096, 2006-Ohio-6905, ¶ 6; Bruns v. Green, 10th
Dist. Franklin No. 18AP-259, 2019-Ohio-2296; In re K.R., 11th Dist. Trumbull No.
2010-T-0050, 2011-Ohio-1454, ¶ 42; Hatfield v. Cornell, 12th Dist. Fayette No.
CA2017-05-011, 2018-Ohio-798, ¶ 13, fn. 2. These decisions are correct.
Conclusion
{¶ 21} We find that under the plain language of R.C. 3109.04, a trial court
is not required to find a change in circumstances, in addition to considering the best
interest of the child, before terminating a shared-parenting plan and decree and
designating one parent as the residential parent and legal custodian. Accordingly,
we affirm the judgment of the Tenth District Court of Appeals.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
KENNEDY, J., concurs, with an opinion.
_________________
KENNEDY, J., concurring.
{¶ 22} This case is before us for one reason: appellant Marcus Green’s
reliance on the continued vitality of this court’s opinion in Fisher v. Hasenjager,
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116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546. Fisher involved the
termination of a decree and plan of shared parenting, and in its decision, this court
erred by applying the statutory provision that controls the modification of the
allocation of parental rights and responsibilities of a decree and plan of shared
parenting, R.C. 3109.04(E)(1)(a), to a termination case. That is, Fisher treated a
termination of a decree and plan of shared parenting like it was a modification of
parental rights and responsibilities contained within a decree and plan of shared
parenting. Therefore, based on this court’s holding in Fisher, Green had every
reason to believe this court would follow its own precedent and apply R.C.
3109.04(E)(1)(a) in this factually similar case. But we correctly do not follow the
flawed precedent of Fisher today. Most of Ohio’s appellate districts have ignored
Fisher and have distinguished it into irrelevance, because those courts do not have
the power to overrule this court’s precedent. But we do have that power, and we
should affirmatively state what most domestic-relations courts and courts of
appeals have long recognized by their refusal to apply Fisher—that Fisher was
wrongly decided and should be overruled. Because this court does not take that
needed final step today, I write separately.
{¶ 23} In Fisher, the trial court had entered a decree of shared parenting
incorporating the parents’ shared-parenting plan in which the parental rights and
responsibilities were shared equally. The shared-parenting plan included a detailed
visitation schedule. Sometime later, however, both parents moved to become the
sole residential parent and legal custodian of the child. During litigation, the trial
court concluded that both parties were requesting the termination of the shared-
parenting plan and that it was in the best interest of the child to terminate it. The
trial court’s entry explicitly stated that the court “ ‘does hereby terminate the shared
parenting plan previously entered into by the parties and ordered by this court.’ ”
Id. at ¶ 39 (Pfeifer, J., dissenting).
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{¶ 24} Pursuant to R.C. 3109.04(E)(2)(d), when the court terminates a prior
shared-parenting decree, 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 [R.C. 3109.04]
as if no decree for shared parenting had been granted and as if no request for shared
parenting ever had been made.” Under R.C. 3109.04(A)(1):
If neither parent files a pleading or motion in accordance
with division (G) of this section [i.e., a pleading or motion
“requesting the court to grant both parents shared parental rights and
responsibilities for the care of the children”] * * * the court, in a
manner consistent with the best interest of the children, shall
allocate the parental rights and responsibilities for the care of the
children primarily to one of the parents, designate that parent as the
residential parent and the legal custodian of the child, and divide
between the parents the other rights and responsibilities for the care
of the children, including, but not limited to, the responsibility to
provide support for the children and the right of the parent who is
not the residential parent to have continuing contact with the
children.
(Brackets and emphasis added.) The trial court in Fisher followed the instructions
of R.C. 3109.04(E)(2)(d) and (A)(1). As part of the allocation of parental rights
and responsibilities, the trial court determined the best interest of the child under
R.C. 3109.04(F)(1)(a) through (f) and designated the mother as the residential
parent and legal custodian of the child.
{¶ 25} Unfortunately, the trial court in Fisher failed to explicitly cite the
statutory section it relied upon in deciding the motions of the parties. This led to a
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mistake at the court of appeals and a wrong-way turn in our jurisprudence. The
court of appeals interpreted the trial court’s action as a modification of a shared-
parenting decree, in part because the trial court kept some elements of the original
shared-parenting plan in the new decree. The appellate court noted that the trial
court’s entry stated, “ ‘All other orders not in conflict with the above shall remain
in full force and effect.’ ” Fisher v. Hasenjager, 168 Ohio App. 3d 321, 2006-Ohio-
4190, 859 N.E.2d 1022, ¶ 16 (3d Dist.).
{¶ 26} But no matter how many terms from an original shared-parenting
plan become incorporated into a new decree allocating the parental rights and
responsibilities, there is no shared-parenting plan without an allocation of parental
rights and responsibilities to both parents. See R.C. 3109.04(A)(2). If the central
element of shared parenting is removed and one parent—not both—is named the
residential parent and custodian of the child, that is a termination—not a
modification—of a decree and plan of shared parenting.
{¶ 27} R.C. 3109.04(A)(1) and (2) make clear that the trial court has only
two choices when it comes to allocating parental rights and responsibilities: to
“allocate the parental rights and responsibilities for the care of the children
primarily to one of the parents [and] designate that parent as the residential parent
and the legal custodian of the child” under R.C. 3109.04(A)(1) or to “allocate the
parental rights and responsibilities for the care of the children to both parents and
issue a shared parenting order” under R.C. 3109.04(A)(2). Therefore, once a trial
court has granted an original decree and plan of shared parenting, the central
question a trial court faces at the outset of postdecree litigation is whether the
parties are seeking to modify the decree and plan of shared parenting or terminate
the decree and plan of shared parenting. The answer to that question drives which
statute applies.
{¶ 28} And even when the court divides the other rights and responsibilities
for the care of the children under R.C. 3109.04(A)(1), including child support and
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visitation by the nonresidential parent, that is not shared parenting. “The
designation of one parent as the residential parent and legal custodian occurs only
in cases where shared parenting is rejected. R.C. 3109.04(A)(1).” Fisher, 116 Ohio
St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 55 (Pfeifer, J., dissenting).
Designating one parent as the residential and legal custodian of the child, as the
trial court did in Fisher, is statutorily incompatible with shared parenting.
Therefore, when a court moves from shared parenting to a designation of one parent
as the residential parent and legal custodian, it terminates shared parenting.
{¶ 29} Despite the termination of the decree and plan of shared parenting
by the trial court in Fisher, the court of appeals in Fisher termed the trial court’s
order terminating the decree and plan of shared parenting a modification of a term
of the shared-parenting plan thereby requiring the application of R.C.
3109.04(E)(2)(b). On review before this court, we termed the termination of the
decree and plan of shared parenting a modification of the allocation of parental
rights and responsibilities which required the application of R.C. 3109.04(E)(1)(a)
and a finding of a change in circumstances and a determination that the change
would be in the best interest of the child.
{¶ 30} We therefore concluded that the court of appeals had erred in holding
that a change in residential parent and legal custodian under a decree and plan of
shared parenting is a term that can be modified under R.C. 3109.04(E)(2)(b). In
the syllabus, this court made the following statement of law: “A modification of the
designation of residential parent and legal custodian of a child requires a
determination that a ‘change in circumstances’ has occurred, as well as a finding
that the modification is in the best interest of the child. (R.C. 3109.04(E)(1)(a),
construed.)” Fisher at syllabus. That statement fairly tracks the language of R.C.
3109.04(E)(1)(a), but it had nothing to do with the facts of the case in which it was
enunciated. Fisher actually concerned the termination of a decree and plan of
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shared parenting, so this court’s holding regarding a modification of a shared-
parenting decree and plan of shared parenting was inapplicable.
{¶ 31} A syllabus, or any legal holding in a case, is dictated by the facts of
the case. “The syllabus of a decision of the Supreme Court of Ohio states the law
of Ohio, but such pronouncement must be interpreted with reference to the facts
upon which it is predicated and the questions presented to and considered by the
Court.” Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N.E. 403 (1934),
paragraph one of the syllabus. The syllabus in Fisher did not arise from the facts
in Fisher but instead arose from a misinterpretation of the facts of the case.
Therefore, the syllabus and holding are invalid and the case should be overturned.
{¶ 32} Green argues that because the facts of this case are the same as in
Fisher, this court should come to the same result. He writes in his brief:
The facts in Fisher are identical to those in the case at bar.
***
***
* * * [B]oth in Fisher, and in the case at bar, there was a
shared parenting plan. The plan was terminated. The fact that the
term “modification” was used in Fisher does not undermine its
applicability to the case at bar. In both the case at bar and Fisher,
both parents were the residential parents and the legal custodians
under the initial decrees. Under the new decrees, in each case the
residential parent and legal custodian status was modified, and one
parent was named the sole residential parent and legal custodian.
Those simple facts are irrefutable.
***
The facts in Fisher, and the facts in the case at bar, are not
substantially the same—they are identical.
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(Emphasis sic.)
{¶ 33} Green is correct that the facts in this case are essentially identical to
those in Fisher. And if this court had applied the correct statutory provision in
Fisher, then Fisher would control this case. But Fisher does not apply here, not
because there is a relevant factual distinction between that case and this one but
because Fisher was wrongly decided. Fisher treated a termination of a decree and
plan of shared parenting as if it were a modification of a shared-parenting plan,
when a termination is another thing entirely. A trial court must consider a
termination under the standard set forth in R.C. 3109.04(E)(2)(c).
{¶ 34} But this court declines to overrule Fisher in this case. With Fisher
remaining good law, this court now has two different holdings regarding the same
fact pattern. This leaves courts of appeals without clear guidance. Courts of
appeals, including the court below, that have attempted to distinguish Fisher and
apply R.C. 3109.04(E)(2)(c)’s best-interest-of-the-child standard in termination
cases have had to rely on the fiction that Fisher involved a mere modification of
the allocation of parental rights and responsibilities, rather than a termination of a
shared-parenting decree. See, e.g., In re A.C., 1st Dist. Hamilton No. C-180088,
2019-Ohio-2891, ¶ 18; Beismann v. Beismann, 2d Dist. Montgomery No. 22323,
2008-Ohio-984, ¶ 10; Sayre v. Furgeson, 2016-Ohio-3500, 66 N.E.3d 332, ¶ 27-28
(3d Dist.); Rogers v. Rogers, 6th Dist. Huron No. H-07-024, 2008-Ohio-1790, ¶ 10-
13; Kougher v. Kougher, 194 Ohio App. 3d 703, 2011-Ohio-3411, 957 N.E.2d 835,
¶ 15 (7th Dist.); In re K.R., 11th Dist. Trumbull No. 2010-T-0050, 2011-Ohio-
1454, ¶ 48. But those courts have no choice other than to attempt to distinguish
Fisher into oblivion; “courts of appeals are required to follow the law as it is
interpreted by this court,” Mannion v. Sandel, 91 Ohio St. 3d 318, 322, 744 N.E.2d
759 (2001). Courts of appeals leave to supreme courts “the prerogative of
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SUPREME COURT OF OHIO
overruling [their] own decisions,” Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989).
{¶ 35} By not overruling Fisher, we also leave undisturbed the lower
courts’ statements about that case. For instance, the court in Beismann stated that
in Fisher, this court “upheld a decision of the Third District Court of Appeals in
which the court held that a mere change in the designation of the residential parent
and legal custodian did not constitute a termination of the shared parenting plan,
but rather only a modification of the plan.” Beismann at ¶ 10.
{¶ 36} We should overrule Fisher to make clear that when a trial court
eliminates the fundamental element of a decree and plan of shared parenting—the
allocation of parental rights and responsibilities to both parents—and instead
designates one parent as the residential parent and the legal custodian of the child,
it terminates the decree and plan of shared parenting. In such cases, that termination
should be granted only if it is in the best interest of the child, pursuant to R.C.
3109.04(E)(2)(c).
{¶ 37} Because this court fails to take this opportunity to clarify the law by
overturning its decision that made the law cloudy, I concur separately.
_________________
Robinson Law Firm, L.L.C., and Emmett E. Robinson, for appellee.
Randy S. Kurek and Martha A. Rose, for appellant.
_________________
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