Kurzen v. Kurzen

[Cite as Kurzen v. Kurzen, 2021-Ohio-1222.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
Gene P. Kurzen, Jr. Court of Appeals No. H-20-008
Appellant Trial Court No. DR 20009 0729
v.
Brenda L. Kurzen (Bub), et al. DECISION AND JUDGMENT
Appellee Decided: April 9, 2021
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Shelly L. Kennedy, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Huron County Court of Common
Pleas, Domestic Relations Division, which overruled objections to the magistrate’s
decisions on child custody and granted parenting time. For the reasons set forth below,
this court affirms the judgment of the trial court.
I. Background
{¶ 2} After three years of marriage plaintiff-appellant, Gene P. Kurzen, Jr., filed a
complaint for divorce from defendant-appellee, Brenda L. Kurzen, now known as
Brenda L. Bub. The two additional co-defendants are not parties to this appeal.
{¶ 3} As journalized on May 24, 2010, the trial court granted the parties a divorce
and decreed, among other matters, shared parenting in accordance with the approved joint
shared parenting plan for their minor child. The trial court designated appellee the
residential parent for school placement purposes.
{¶ 4} A second child born during the marriage was determined by the trial court to
not be appellant’s child and is not a subject of this appeal. On March 2, 2010, the trial
court ordered the addition of the second child’s father as a co-defendant.
{¶ 5} On December 27, 2011, appellant sought to modify the joint shared
parenting plan alleging the plan was no longer in the best interest of the parties’ child.
By order journalized on June 27, 2012, the trial court approved the parties’ first amended
joint shared parenting plan for their minor child, and pursuant to R.C. 3109.04, decreed,
among other matters, shared parenting in accordance with the first amended joint shared
parenting plan.
{¶ 6} On October 14 and December 9, 2016, appellant filed motions to show cause
against appellee for allegedly violating his court-ordered parenting time schedule with
their child. On December 9, 2016, appellant also filed a motion to reallocate parental
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rights and responsibilities by terminating the first amended joint shared parenting plan
and naming appellant as the residential parent and legal custodian of the minor child.
Appellant alleged such reallocation was in the best interest of the child because
appellee’s withholding parenting time without justification was a significant change in
circumstances and compelled termination of the shared parenting plan. Appellant further
alleged that appellee lacked justification because “the Huron County Sheriff’s Office and
the Huron County Department of Job and Family Services have investigated [appellee’s]
concerns and neither have taken any formal action with respect to said investigations.”
{¶ 7} Then on January 23, 2017, appellee filed a motion to terminate the June 27,
2012 shared parenting decree and reallocate parental rights and responsibilities by
naming appellee as the custodial parent and legal guardian of the minor child. Appellee
alleged the child “has expressed severe fear and anxiety at being at [appellant’s]
residence. * * * [I]t is clear that [the child] being at [appellant’s] home in the current
situation could be severely detrimental to his physical, mental and emotional well being.
* * * [M]aintaining shared parenting is clearly not in [the child’s] best interest at this
time.” Appellee argued that “an in camera interview of [the child] would be appropriate
so that the child can express his current concerns to the court.” Appellee averred in an
accompanying affidavit that starting in August 2016, the child complained of being
sexually victimized at appellant’s home with appellant and with appellant’s girlfriend’s
son. In her motion, appellee alleged, “there is an ongoing children services investigation
that needs to be completed and [the child] is in need of further counseling whether he be
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aggressor or victim.” Appellee further averred in her affidavit, “Irrespective of who the
aggressor and who the victim is, in this situation, it is clear that [the child] spending time
at [appellant’s] house until this situation is fully resolved is not in [the child’s] best
interest.”
{¶ 8} On February 15, 2017, the parties filed joint stipulations regarding specific
dates between August and December 2016, when “[appellant] was entitled to parenting
time with the minor Child * * *, that said parenting time did not occur as ordered, and
said stipulation constitutes [appellant] meeting its burden in establishing a prima facie
case for contempt in both pending Motions to Show Cause filed in this matter.”
{¶ 9} Significant portions of the record are sealed because of the investigation of
the allegations of the minor child being sexually victimized. After a hearing held on
February 27, 2017, the magistrate ordered, as journalized on March 8, 2017, that among
other matters, the minor child was added as a party defendant and was appointed a
guardian ad litem.
{¶ 10} The trial court magistrate held additional hearings, along with an in-camera
interview of the minor child, and as journalized on July 2, 2019, the magistrate ordered,
among other matters, to terminate the joint amended shared parenting plan, to designate
appellee as the residential parent and legal custodian of the minor child, and to grant
appellant parenting time according to the court’s standard policy on parenting time with
certain conditions.
4.
{¶ 11} Also journalized on July 2, 2019, the trial court found the magistrate’s
decision was supported by competent and credible evidence and adopted the magistrate’s
decision. The trial court then ordered, among other matters, it was in the best interest of
the child to terminate the May 20, 2010 joint shared parenting plan and the June 26, 2012
first amended joint shared parenting plan, to designate appellee as the residential parent
and legal custodian of the parties’ minor child, and to grant appellant parenting time in
accordance with the court’s standard policy on parenting time with the condition “that
[appellant] shall not permit the child of [his girlfriend] in the household while exercising
parenting time with [the parties’ minor child].”
{¶ 12} Appellant and the guardian ad litem filed objections to the magistrate’s
decision. On February 27, 2020, the trial court overruled all objections and, again,
adopted the magistrate’s decision after identifying the record he reviewed. The trial court
stated in its judgment entry that it conducted “a careful and independent review of the
matter, including the transcripts of proceedings, [and found] that the Magistrate has
properly determined the factual issues, that the Magistrate has applied the law correctly to
the facts, and that the facts as found by the Magistrate are supported by competent,
credible evidence and further support the conclusions of law reached by the Magistrate.”
{¶ 13} Pursuant to R.C. 3109.04(E)(1)(a), the trial court agreed with the
magistrate and found “a change of circumstances since entry of the parties’ prior decree
allocating parental rights and responsibilities.” The magistrate found in its prior decision
that in response to the sexual victimization allegations, appellee “filed a report with local
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law enforcement authorities * * * [and] that the local child protective services agency
also intervened.” As a consequence, the magistrate found that appellant “has exercised
no parenting time with the child since mid-September 2016.”
{¶ 14} Pursuant to R.C. 3109.04(E)(1)(a), (E)(2)(c), (F)(1) and (F)(2), the trial
court agreed with the magistrate and ordered to terminate the May 20, 2010 joint shared
parenting plan and the June 26, 2012 first amended joint shared parenting plan, to
reallocate parental rights and responsibilities, and to designate appellee the residential
parent and legal custodian of the parties’ minor child.
{¶ 15} Pursuant to R.C. 3109.051(D), the trial court agreed with the magistrate
and ordered to grant appellant “parenting time with the parties’ minor child in accordance
with this Court’s standard policy, Appendix ‘B,’ a copy of which is attached hereto and
specifically incorporated herein by reference; further, that [appellant] shall not permit the
child of [appellant’s girlfriend] in the household while exercising parenting time with [the
parties’ minor child].” The trial court further agreed with the magistrate and ordered to
permit appellant “to enroll the parties’ minor child in counseling and/or have an
assessment to assist the child in adjustment to resumed parenting time with [appellant.]”
{¶ 16} The trial court then adjudicated appellee in contempt for failing to comply
with the court-ordered visitation by appellant from August 26 to 29, 2016. The trial court
agreed with the magistrate’s decision, despite the magistrate acknowledging appellee
acted on the directives of the Huron County Children’s Services agency when she
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withheld appellant’s parenting time. The trial court sentenced appellee to serve three
days in the Huron County Jail with purge conditions, which she eventually met.
{¶ 17} Appellant timely filed this appeal setting forth two assignments of error:
I. The court abused its discretion in upholding the Magistrate’s
Decision, as the Magistrate erred in ruling that the child’s best interest was
served by naming Appellee residential parent and legal custodian.
II. The court abused its discretion in ruling that the child’s best
interests were served by allowing Appellant only a standard visitation
schedule.
II. Objections to Magistrate’s Decision
{¶ 18} In support of his first assignment of error, appellant argues the trial court
abused its discretion when it failed to designate appellant the residential parent and legal
custodian of the child. Appellant concedes the magistrate found three factors favoring
appellee: R.C. 3109.04(F)(1)(b) and (c) and (F)(2)(e). Appellant argues the magistrate
found six factors neutral to either party: R.C. 3109.04(F)(1)(a), (d), (e), (g), (h) and (j).
On balance, appellant argues that if the magistrate actually gave no weight to the
discredited allegations of sexually victimizing the child, then the manifest weight of the
evidence showed four factors in favor of awarding custody to appellant: R.C.
3109.04(F)(1)(f), (g), (i) and 3109.04(F)(2)(b). He argues, “This results in the factors
supporting Appellant to be labeled the residential parent to outweigh the factors that
support Appellee continuing to be labeled the residential parent.”
7.
{¶ 19} Where a party timely files objections to a magistrate’s decision, the trial
court is required to rule on the objections after “an independent review as to the objected
matters to ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law.” Civ.R. 53(D)(4)(d). This “independent review” is a
de novo review by the trial court. Brancatto v. Boersma, 6th Dist. Lucas No. L-12-1271,
2013-Ohio-3052, ¶ 8. We find the trial court explicitly stated the scope of its
independent review of the record before it.
{¶ 20} We review a trial court’s ruling on the objections to a magistrate’s decision
for an abuse of discretion. Id. at ¶ 9. Abuse of discretion “‘connotes more than an error
of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 21} The record shows appellant filed objections to the magistrate’s decision on
July 9, 2019, and on January 21, 2020. We find appellant’s arguments stated in his
objections are substantially similar to his arguments in his first assignment of error on
appeal.
A. Termination of Shared Parenting Plan and Decree
{¶ 22} Both appellant and appellee sought termination of their joint shared
parenting plan. 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.” Bruns v. Green, Slip Opinion Nos.
8.
2019-1028 and 2019-1178, 2020-Ohio-4787, ¶ 19. By its February 27, 2020 decision and
judgment entry the trial court terminated the prior shared parenting decrees that
incorporated the parties’ original and first amended joint shared parenting plans, which
were also terminated. Id. at ¶ 4, fn. 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.”).
{¶ 23} R.C. 3109.04(E)(2)(c) and (d) govern a trial court’s decision to terminate a
shared parenting decree that includes a shared parenting plan and the consequence of that
decision. Id. at ¶ 12-13. R.C. 3109.04(E)(2)(c) and (d) state:
In addition to a modification authorized under [R.C. 3109.04(E)(1)]:
* * * (c) The court may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under [R.C. 3109.04(D)(1)(a)(i)]
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. * * *. (d)
Upon the termination of a prior final shared parenting decree under [R.C.
3109.04(E)(2)(c)], 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 [R.C. 3109.04(A), (B), and
(C)] as if no decree for shared parenting had been granted and as if no
request for shared parenting ever had been made.
9.
{¶ 24} Although the trial court determined changed circumstances existed
pursuant to R.C. 3109.04(E)(1)(a), it was not required under R.C. 3109.04(E)(2) to first
find changed circumstances, in addition to considering the best interest of the child, prior
to terminating the shared parenting plan and decree and designating one parent as the
residential parent and legal custodian. Bruns at ¶ 21; Green v. Richards, 6th Dist. Wood
No. WD-12-039, 2013-Ohio-406, ¶ 26, fn. 1. R.C. 3109.04(E)(2) authorizes the trial
court, on its own initiative or at the request of one or both parents, to terminate a shared
parenting decree that includes a shared parenting plan when it is in the best interest of the
child. Id. at ¶ 12; Hill v. French, 6th Dist. Lucas No. L-20-1077, 2021-Ohio-24, ¶ 29.
{¶ 25} R.C. 3109.04(F) addresses how a court determines the best interest of the
child under the statute. Id. at ¶ 31; C.L. v. S.M., 6th Dist. Lucas No. L-17-1271, 2018-
Ohio-5281, ¶ 33; In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 67.
In domestic relations matters we are mindful that “[a] reviewing court should not
substitute its judgment for that of the trial court.” Snyder v. Snyder, 6th Dist. Sandusky
No. S-92-30, 1993 WL 356939, *3 (Sept. 17, 1993). We will not disturb a trial court’s
determination of what is in the best interest of the child absent an abuse of discretion.
Hill at ¶ 26.
{¶ 26} R.C. 3109.04(F)(1) through (3) state:
(1) In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and responsibilities
for the care of children or a modification of a decree allocating those rights
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and responsibilities, the court shall consider all relevant factors, including,
but not limited to:
(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
[R.C. 3109.04(B)] 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;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child’s best interest;
(d) The child’s adjustment to the child’s home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent pursuant
to a child support order under which that parent is an obligor;
(h) Whether 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; whether either parent, in a case in which a child has been
adjudicated an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act that is the
basis of an adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or pleaded
guilty to a violation of [R.C. 2919.25] or a sexually oriented offense
involving a victim who at the time of the commission of the offense was a
member of the family or household that is the subject of the current
proceeding; whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense was a
member of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the commission of the
offense; and whether there is reason to believe that either parent has acted
in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning
to establish a residence, outside this state.
12.
(2) In determining whether shared parenting is in the best interest of
the children, the court shall consider all relevant factors, including, but not
limited to, the factors enumerated in [R.C. 3109.04(F)(1)], the factors
enumerated in [R.C. 3119.23], and all of the following factors:
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
(3) When allocating parental rights and responsibilities for the care
of children, the court shall not give preference to a parent because of that
parent’s financial status or condition.
{¶ 27} Despite appellant challenging the trial court’s review of the best interest of
the child factors under R.C. 3109.04(F)(1) and (2), we fail to find the trial court abused
its discretion.
13.
{¶ 28} Pursuant to R.C. 3109.04(F)(1)(a), the trial court agreed with the
magistrate’s finding that while appellant and appellee agreed that terminating the shared
parenting plan is in the best interests of the child, they disagreed as to whom should be
designated the residential parent and legal custodian. The magistrate determined this is a
neutral factor between the parties.
{¶ 29} Pursuant to R.C. 3109.04(F)(1)(b), the magistrate held an in-camera
interview of the minor child on February 25, 2019, when the child was 12 years old, and
the trial court agreed with the findings. The magistrate found the child “possesses
sufficient reasoning ability to express meaningful wishes and concerns regarding the
allocation of parental rights and responsibilities * * * [and] has expressed to the
Magistrate that he desires no contact with [appellant].” The magistrate found the child
alleges, and appellant denies, that between the ages of three and eight years old, appellant
“has touched his ‘genitalia’ and otherwise had touched him ‘inappropriately’ * * * [and]
that [appellant] has made him sleep in the nude while visiting with him.” The magistrate
determined this factor favors appellee, although “the wishes of the child should be given
somewhat diminished weight because of the failure to establish inappropriate conduct;
further, however, the child’s fear that [appellant] wanted to ‘put mom in jail’ has basis in
fact because of the contempt action which has been pending.”
{¶ 30} Pursuant to R.C. 3109.04(F)(1)(c), the trial court agreed with the
magistrate’s finding that prior to mid-September 2016, appellant “has been observed to
enjoy a positive relationship with [the child] and that they engaged in age-appropriate
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activities together,” but since then appellant “has exercised no parenting time with [the
child].” The magistrate made further findings: that appellant’s girlfriend and her son live
with appellant and “there is no significant evidence of problems in the relationship
between [the girlfriend] and [the child]”; that the child “resents [appellant] because of the
child’s belief that [appellant] loves [his girlfriend’s son] more than he loves [the child]”;
and that appellee, her husband, the child’s half-sibling and two step-siblings in appellee’s
home enjoy a positive relationship with the child “with some occasional sibling rivalry,”
engage in age-appropriate activities together and, in the case of one step-sibling of the
same age as the child, are “inseparable” when they are together. The magistrate
determined this factor favors appellee.
{¶ 31} Pursuant to R.C. 3109.04(F)(1)(d), the trial court agreed with the
magistrate’s finding that both appellant and appellee maintain appropriate physical home
environments with no safety or utility issues. The magistrate further found that the child
earned primarily “B” grades in school, and despite 12 absences from school, “there is no
evidence that the absences have impacted significantly his academic performance.” The
child, who plays sports, is perceived by school personnel “to be a ‘jokester’ who ‘likes to
have fun.’” The magistrate determined this factor favors appellee.
{¶ 32} Pursuant to R.C. 3109.04(F)(1)(e), the trial court agreed with the
magistrate’s finding that appellee’s diagnosed medical issues do not impact her ability to
work and “there is no evidence that [appellee] is unable to care properly for [the child].”
The magistrate further found that appellant’s mental health issues should not have a
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bearing to provide adequate care for the child and that the forensic psychologist
mistakenly determined appellant required specific sex therapy. The magistrate further
found that the child’s mental health status does not require psychological services, but he
“can attend counseling as needed.” The magistrate determined this is a neutral factor
between the parties and the allegations of abuse against appellant “is given no weight
because there is a failure to establish by a preponderance of competent, credible evidence
that [appellant] engaged in any inappropriate behavior with [the child].”
{¶ 33} Pursuant to R.C. 3109.04(F)(1)(f) and (i), the trial court agreed with the
magistrate’s finding that “[appellee] is less likely than [appellant] to honor and facilitate
court-approved parenting time rights or visitation and companionship rights” because
“the parents have stipulated that, from 26 August 2016 through 05 December 2016
inclusive, ‘[Mother] has willfully failed to allow [Father] to exercise parenting time with
the child * * * in violation of the orders of this Court.’” The magistrate further found that
“[appellee] admits that she permitted [the] then ten-year-old [child] to make decisions on
spending (or not spending) time with [appellant].” The magistrate determined that “the
weight of the factor of [appellee’s] continuous and willful denial of [appellant’s] right to
parenting time in accordance with the order of the Court is diminished significantly
because she was acting on the advice of children’s services and law enforcement
authorities.” The magistrate determined these factors favor appellant.
{¶ 34} Pursuant to R.C. 3109.04(F)(1)(g), the trial court agreed with the
magistrate’s finding that there is no evidence that appellant is either current with, or in
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arrears of, his court-ordered child support obligation. The magistrate determined this is a
neutral factor between the parties.
{¶ 35} Pursuant to R.C. 3109.04(F)(1)(h) and (2)(c), the trial court agreed with the
magistrate’s finding that there is no evidence that appellant, appellant’s girlfriend,
appellee or appellee’s husband have been convicted of or plead guilty to any criminal
offense involving abuse or neglect of a child or domestic violence against a family or
household member. “The Magistrate further finds, however, that [the child] has accused
[appellant] of ‘inappropriately’ touching [the child’s] ‘genitalia.’” The magistrate
determined this is a neutral factor between the parties.
{¶ 36} Pursuant to R.C. 3109.04(F)(1)(j), the trial court agreed with the
magistrate’s finding that neither appellant nor appellee “plan to establish a residence
outside the State of Ohio.” The magistrate determined this is a neutral factor between the
parties.
{¶ 37} Pursuant to R.C. 3109.04(F)(2)(a), the trial court agreed with the
magistrate’s finding that originally the parties “were able to cooperate and make
decisions jointly with respect to [the child].” After appellee learned about the allegedly
inappropriate sexual contact in appellant’s home, the magistrate found appellee’s text
messages to appellant on August 27 and 28, 2016, “are no ‘olive branch’” when she
requested to sit down together and discuss their minor child’s allegations. The magistrate
further found appellee’s texts “clearly” indicate that appellee was not cooperative
throughout the process when appellant repeatedly insisted “on compliance with the court
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order or having the matter resolved by this Court.” The magistrate further found that
appellee “has never been interested in having [appellant] participate in counseling with
[the child].” The magistrate further found that appellant made the judgment of putting
his girlfriend’s child “on an equal level” with his minor child. Specifically, the
magistrate found that:
[F]aced with what is likely the most challenging test of their ability
to co-parent and make joint decisions in the best interest of their son, both
[appellant] and [appellee] made horrible, damaging decisions resulting in
detriment to themselves, to each other, and to [the child]. The Magistrate
further finds that, of course, [appellee] and [appellant] wholly disregarded
the provision in their amended shared parenting plan entitled “Problem
Resolution around the Child.”
The magistrate determined this factor favors appellant.
{¶ 38} Pursuant to R.C. 3109.04(F)(2)(b), the trial court agreed with the
magistrate’s finding that appellee, “through her text messages to [appellant] and allowing
[the child] to make decisions on parenting time issues, clearly demonstrates she no longer
has any ability to encourage the sharing of love, affection and contact between [the child]
and [appellant].” The magistrate determined this factor favors appellant.
{¶ 39} Pursuant to R.C. 3109.04(F)(2)(d), the trial court agreed with the
magistrate’s finding that “the location of both parents’ homes are in the same county, so
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this does not present a challenge to the exercise of shared parenting.” The magistrate
determined this is a neutral factor between the parties.
{¶ 40} Pursuant to R.C. 3109.04(F)(2)(e), the trial court agreed with the
magistrate’s finding that the guardian ad litem recommends appellee be named the
residential parent and legal custodian of the minor child and that appellant have no
contact with the child until appellant “‘has engaged in individual counseling which
specifically addresses the substantiated abuse allegations.’” The magistrate further found
that appellant’s allegation that appellee “has instilled fear in [the child] and has been
placing lies in his head” was not established by a preponderance of competent, credible
evidence.” The magistrate determined this factor favors appellee.
{¶ 41} We reviewed the entire record and do not find the trial court’s attitude was
unreasonable, arbitrary or unconscionable when it determined the best interest of the
child and terminated the shared parenting decree that contained a shared parenting plan.
We do not find the trial court abused its discretion when it overruled appellant’s
objections to the magistrate’s decision. Bruns, Slip Opinion Nos. 2019-1028 and 2019-
1178, 2020-Ohio-4787, at ¶ 14.
B. Reallocation of Parental Rights and Responsibilities
{¶ 42} Appellant further challenges the trial court’s designation of appellee as the
residential parent and legal custodian of the parties’ minor child. R.C. 3109.04 governs
the allocation of parental rights and responsibilities for the care of minor children of a
marriage. We review a trial court’s ruling on a motion to reallocate parental rights and
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responsibilities for the care of children for an abuse of discretion. T.S. v. A.T., 6th Dist.
Lucas No. L-19-1296, 2020-Ohio-6871, ¶ 35.
{¶ 43} R.C. 3109.04(E)(2)(d) governs the consequence of the trial court’s
termination of a prior final shared parenting decree under R.C. 3109.04(E)(2)(c): “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 [R.C.
3109.04(A), (B), and (C)] as if no decree for shared parenting had been granted and as if
no request for shared parenting ever had been made.” The Ohio Supreme Court holds the
plain language of R.C. 3109.04(E)(2)(d) only requires the trial court to determine the best
interest of the child before it is compelled to issue a modified decree for the allocation of
parental rights and responsibilities for the care of the children as if no decree for shared
parenting had been granted and as if no request for shared parenting ever had been made.
Bruns at ¶ 13. The “designation of residential parent and legal custodian is an integral
part of the decree allocating parental rights and responsibilities.” (Emphasis sic.). Id. at
¶ 19.
{¶ 44} As required by R.C. 3109.04(E)(2)(d), the trial court is to apply the best
interest of the child factors applicable under R.C. 3109.04(A) through (C) as if no decree
for shared parenting had been granted and as if no request for shared parenting ever had
been made. Id. at ¶ 13, citing R.C. 3109.04(A)(1); R.C. 3109.04(B)(1). The trial court
may in its discretion “interview in chambers any or all of the involved children regarding
their wishes and concerns with respect to the allocation.” Id. We find the provisions of
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R.C. 3109.04(C) do not apply in this matter, according to the magistrate’s findings
pursuant to R.C. 3109.04(F)(1)(h) and (2)(c), for which we previously determined the
trial court did not abuse its discretion when it determined the best interest of the child.
{¶ 45} We reviewed the entire record and do not find the trial court’s attitude was
unreasonable, arbitrary or unconscionable when it reallocated parental rights and
responsibilities for the care of the parties’ minor children and designated appellee as the
residential parent and legal custodian. We do not find the trial court abused its discretion
when it overruled appellant’s objections to the magistrate’s decision. As recently stated
by the Ohio Supreme Court, no abuse of discretion is found where “the trial court
followed the plain language of the statute [R.C. 3109.04(E)(2)(d)] and awarded custody
based on its determination of the child’s best interest.” Bruns at ¶ 14, citing R.C.
3109.04(A)(1).
{¶ 46} Appellant’s first assignment of error is not well-taken.
III. Parenting Time
{¶ 47} In support of his second assignment of error, appellant argues the trial court
abused its discretion when it adopted the magistrate’s determination that the R.C.
3109.051(D) factors were similar to the R.C. 3901.04(F)(1) factors when it only reviewed
R.C. 3109.051(D)(2), (3), (4), (7), (8), (9), and (10). Appellant argues, “Had the court
gone through and completed a full analysis of the statutory factors, a different outcome is
likely to occur.” Appellant further argues the trial court found factors supporting
appellant were R.C. 3109.051(D)(10), (13) and (16), and the factors supporting appellee
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were R.C. 3109.051(D)(1) and (6). Appellant further argues the trial court found factors
neutral to either party were R.C. 3109.051(D)(2), (3), (4), (7), (8), and (9). On balance,
appellant argues that the trial court’s failure to “properly” weigh the R.C. 3109.051(D)
factors in appellant’s favor for more parenting time is an abuse of discretion.
{¶ 48} “Modification of visitation rights is governed by R.C. 3109.051.” Braatz v.
Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. R.C.
3109.051(O)(4) defines a “parenting time order,” sometimes interchangeably called a
visitation order, as “an order establishing the amount of time that a child spends with the
parent who is not the residential parent or the amount of time that the child is to be
physically located with a parent under a shared parenting order.” The party requesting a
change in visitation rights need make no showing that there has been a change in
circumstances in order for the trial court to modify those rights, but the trial court shall
determine visitation that is in the best interest of the child. Braatz at paragraph two of the
syllabus. We review a trial court’s determination on parenting time and visitation
conditions pursuant to the 16 factors under R.C. 3109.051(D) for an abuse of discretion.
Id.; Kelley v. Kelley, 6th Dist. Wood No. WD-19-073, 2020-Ohio-1535, ¶ 35.
{¶ 49} In a divorce involving a child where the trial court terminated a prior, final
shared parenting decree and then designated one parent as the residential parent and legal
custodian, in accordance with R.C. 3109.051(C), the trial court “shall make a just and
reasonable order” permitting the non-residential parent “to have parenting time with the
child at the time and under the conditions that the court directs,” unless the court
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determines it is not in the child’s best interest. R.C. 3109.051(A). When determining
parenting time rights, the court “shall consider all other relevant factors, including, but
not limited to, all of the factors listed in [R.C. 3109.051(D)].” R.C. 3109.051(C). One of
the factors is a catchall: “Any other factor in the best interest of the child.” R.C.
3109.051(D)(16). If the trial court fails to explicitly reference the R.C. 3109.051(D)
factors, we may look to the entire record to determine if the factors were considered.
In re K.M.L., 9th Dist. Wayne No. 17AP0009, 2018-Ohio-344, 105 N.E.3d 509, ¶ 6.
{¶ 50} R.C. 3109.051(D) states, as it applies to this appeal:
(D) In determining whether to grant parenting time to a parent
pursuant to this section or [R.C. 3109.12] * * *, in establishing a specific
parenting time or visitation schedule, and in determining other parenting
time matters under this section or [R.C. 3109.12] * * *, the court shall
consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the
child’s parents, siblings, and other persons related by consanguinity or
affinity * * *;
(2) The geographical location of the residence of each parent and the
distance between those residences * * *;
(3) The child’s and parents’ available time, including, but not limited
to, each parent’s employment schedule, the child’s school schedule, and the
child’s and the parents’ holiday and vacation schedule;
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(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
[R.C. 3109.051(C)], regarding the wishes and concerns of the child as to
parenting time by the parent who is not the residential parent * * *, as to a
specific parenting time or visitation schedule, or as to other parenting time
or visitation matters, the wishes and concerns of the child, as expressed to
the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend
with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time
and to facilitate the other parent’s parenting time rights * * *;
(11) In relation to parenting time, whether either parent previously
has been convicted of or pleaded guilty to any criminal offense involving
any act that resulted in a child being an abused child or a neglected child;
whether either parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of the
adjudication; and whether there is reason to believe that either parent has
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acted in a manner resulting in a child being an abused child or a neglected
child;
***
(13) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent's right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning
to establish a residence outside this state;
***
(16) Any other factor in the best interest of the child.
{¶ 51} We find appellant argues in his second assignment of error the trial court
ignored the parenting time factors at R.C. 3109.051(D)(1), (5), (6), (11), (12), (13), (14),
(15), and (16). We find the trial court adopted the magistrate’s findings, which included,
“Because the majority of the best interest factors in [R.C. 3109.051(D)] mirror those set
forth in R.C. 3109.04(F)(1), the Magistrate hereby incorporates findings made herein
above as if fully rewritten at this time.” We further find the record confirms the trial
court did not ignore the factors appellant disputes.
{¶ 52} We find R.C. 3109.051(D)(1) is substantially similar to R.C.
3109.04(F)(1)(c), and the trial court agreed with the magistrate’s determination this factor
favors appellee. Appellant concedes, “at the very least the relationship between [the
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child] and [appellant] are strained due to the beliefs of [the child], no matter the truth
behind those beliefs.”
{¶ 53} We further find that for R.C. 3109.051(D)(1) and (7), and the trial court
agreed with the magistrate’s finding that:
because the evidence fails to establish by a preponderance of
competent, credible evidence that [appellant] has engaged in inappropriate
conduct with [the child], the restrictions and conditions on parenting time
for [appellant] recommended by Dr. Rindsberg and the Guardian are
afforded substantially diminished weight. The Magistrate further finds that
Dr. Rindsberg has indicated that [the child] can attend counseling as needed
and that there is no indication of a need for psychological services. The
Magistrate further finds that there is no psychotherapy indicated for [the
child]. The Magistrate further finds that Dr. Rindsberg indicated that
“[a]gain there are no signs of major mental illness for [appellant;]
[appellant’s] depression condition should not have a bearing on his ability
to provide adequate care for [the child] or to interact with him at times.”
The Magistrate therefore finds that [appellant] presents no danger to the
health and safety of [the child]. The Magistrate further finds, however, that
counseling may be useful for [appellant] and [the child] to adjust to court-
ordered contact between the two.
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The Magistrate further finds, however, that [appellant’s girlfriend’s]
son, C.S., may present a risk to [the child’s] health and safety. The
Magistrate further finds that [appellant’s girlfriend] seems to recognize that
not having the boys together is advisable, indicating that she would
probably not keep C.S. at [appellant’s] residence during the initial time if
[the child] came to make his primary residence with [appellant].
{¶ 54} We find R.C. 3109.051(D)(5) is substantially similar to R.C.
3109.04(F)(1)(d), and the trial court agreed with the magistrate’s determination this
factor favors appellee.
{¶ 55} We find R.C. 3109.051(D)(6) is substantially similar to R.C.
3109.04(F)(1)(b), and the trial court agreed with the magistrate’s determination this
factor favors appellee and assigned diminished weight to the child’s wishes. Appellant
concedes, “no matter the actual truth, [the child] has a strained relationship due to what
he believes.”
{¶ 56} We find R.C. 3109.051(D)(11) is substantially similar to R.C.
3109.04(F)(1)(h), and the trial court agreed with the magistrate’s determination this is a
neutral factor between the parties.
{¶ 57} We find R.C. 3109.051(D)(12) and (15) do not apply to the facts of the
matter before us.
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{¶ 58} We find R.C. 3109.051(D)(13) is substantially similar to R.C.
3109.04(F)(1)(i), and the trial court agreed with the magistrate’s determination this factor
favors appellant.
{¶ 59} We find R.C. 3109.051(D)(14) is substantially similar to R.C.
3109.04(F)(1)(j), and the trial court agreed with the magistrate’s determination this is a
neutral factor between the parties.
{¶ 60} We find R.C. 3109.051(D)(16) is substantially similar to R.C.
3109.04(F)(1) requiring the court to “consider all relevant factors” and is reflected in the
trial court’s review of the entire record and its orders based on the best interest of the
child.
{¶ 61} We further find R.C. 3109.051(D)(4) is reflected in the magistrate’s
analysis of R.C. 3109.04(F)(1)(b), (c), (d), (e) and (h) and disagree with appellant that the
trial court agreed with the magistrate’s determination that the combination of the
underlying factors render R.C. 3109.051(D)(4) a neutral factor between the parties as
opposed to favoring appellee.
{¶ 62} We further find R.C. 3109.051(D)(8) is reflected in the magistrate’s
analysis of R.C. 3109.04(F)(1)(c) and disagree with appellant that the trial court agreed
with the magistrate’s determination the combination of the underlying factors render R.C.
3109.051(D)(8) a neutral factor between the parties as opposed to favoring appellee.
{¶ 63} We reviewed the entire record and do not find the trial court’s attitude was
unreasonable, arbitrary or unconscionable. We find the trial court did not abuse its
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discretion when it determined, pursuant to R.C. 3109.051, appellant’s parenting time
schedule.
{¶ 64} Appellant’s second assignment of error is not well-taken.
{¶ 65} On consideration whereof, the judgment of the Huron County Court of
Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered to pay
the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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