Nungester v. Nungester

[Cite as Nungester v. Nungester, 2018-Ohio-1113.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
KATE NUNGESTER,
PLAINTIFF-APPELLEE, CASE NO. 9-17-40
v.
ROBERT NUNGESTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 13 DR 0044
Judgment Affirmed
Date of Decision: March 26, 2018
APPEARANCES:
Ted Coulter for Appellant
Nathan Witkin for Appellee
Case No. 9-17-40
ZIMMERMAN, J.
{¶1} Appellant, Robert Nungester, Jr. (“Robert”) appeals the amended
judgment entry of the Marion County Common Pleas Court, Family Division,
wherein the trial court denied Robert’s motion to modify parenting time.
{¶2} Robert appealed the trial court’s first judgment entry with this Court
on December 22, 2016, in Nungester v. Nungester, 3d Dist. Marion No. 9-16-64,
2017-Ohio-6935. The result of that appeal led to our remand order because the trial
court used R.C. 3109.04, not R.C. 3109.051, as its best interest guide when
addressing a modification of visitation. Robert’s current appeal is from the amended
judgment entry issued by the trial court pursuant to our remand in the prior appeal.
Facts and Procedural History of Prior Appeal
{¶3} Robert and Kate Nungester (“Kate”) were divorced on August 23,
2013 in the Marion County Common Pleas Court. As part of their divorce, they
entered into an agreed parenting plan for their three minor children. The shared
parenting plan designated Kate as the residential parent and permitted Robert
limited visitation with the opportunity for Robert to increase visitation over time to
parenting time set forth in the Marion County Local Rule 32(A). Robert’s visitation
was to be reconsidered upon the recommendation of the children’s counselor, with
overnight visits to start when Robert had obtained appropriate housing.
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{¶4} On March 20, 2015 Robert filed a motion in the trial court to modify
the shared parenting plan to be named the residential parent of the children, along
with a motion to modify his parenting time. However, pending a final hearing on
his motions, on March 23, 2016, Robert and Kate entered into an agreement
modifying Robert’s visitation (with the children) from being supervised by the
Marion County Supervised Visitation Agency (“C•A•R•E | F•I•T•”) to visitation
occurring in a public place and supervised by Kate. The agreement also required
Robert to attend counseling sessions with the children at the discretion of the
children’s counselor. Lastly, the modification provided that Robert and Kate could
mutually agree to periods of unsupervised parenting time with the minor children
(by Robert) before the next court review hearing.
{¶5} Ultimately, a hearing was held in the trial court on Robert’s motions.
At that hearing, Robert advised the trial court that he only wanted to expand his
visitation rights to match the default visitation schedule of the trial court under its
local rule. On November 23, 2016, the trial court entered a judgment entry denying
Robert’s motions. Robert timely filed his appeal and this court remanded the case
to the trial court.
Facts and Procedural History of Current Appeal
{¶6} Pursuant to our remand, on September 15, 2017, the trial court issued
its amended judgment entry in which it analyzed the factors set forth in R.C.
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3109.051(D) determining that it was in the best interest of the children to deny
Roberts motion to modify the prior order as to his parenting time. (Doc. 149).
Robert has timely appealed the trial court’s amended entry wherein he asserts a sole
assignment of error for our review.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW,
ABUSED ITS DISCRETION AND ERRED AGAINST THE
WEIGHT OF THE EVIDENCE BY DETERMINING IT WAS
NOT IN THE BEST INTERESTS OF THE PARTIES’
CHILDREN UNDER R.C. 3109.051 FACTORS TO HAVE
LOCAL RULE 32A PARENTING TIME WITH THEIR
FATHER/DEFENDANT-APPELLANT AND THEREFORE
DENYING THE FATHER/DEFENDANT-APPELLANT’S
MOTION TO MODIFY PARENTING TIME.
{¶7} In his assignment of error, Robert agues the trial court abused its
discretion when it denied his motion to modify parenting time. We disagree.
Standard of Review
{¶8} The abuse of discretion standard is used to review a trial court’s
decision to grant visitation. Booth v. Booth, 44 Ohio St. 3d 142, 144 (1988). A court
abuses its discretion when it makes a decision that is “unreasonable, arbitrary, or
unconscionable”. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). Upon
review, appellate courts must accord the utmost respect to the trial courts discretion.
Miller v. Miller, 37 Ohio St. 3d 71, 74 (1988). Thus, the reviewing court in such
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proceedings should be guided by the presumption that the trial court’s findings were
correct. Id. citing Seasons Cole Co. v. Cleveland, 10 Ohio St. 3d 77, 80.
Analysis
{¶9} In Braatz v. Braatz, 85 Ohio St. 3d 40 (1999), the Supreme Court of
Ohio set forth the appropriate standard for trial courts to apply when faced with the
decision of whether to modify an existing visitation order. The Supreme Court
clarified that R.C. 3109.051 governs the modification of visitation rights. (Id. at
paragraph one of the syllabus.) The Court went on to explain that “[t]he party
requesting a change in visitation rights need make no showing that there has been a
change in circumstances in order for the court to modify those rights. Pursuant to
R.C. 3109.051(D), the trial court shall consider the fifteen factors enumerated
therein, and in its sound discretion shall determine visitation that is in the best
interest of the child”. (Id. at paragraph two of the syllabus.) These factors are:
(1) The prior interaction and interrelationships of the child with the
child's parents, * * *;
(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;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
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(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, 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 acted in a manner resulting in a child
being an abused child or a neglected child;
(12) * * *
(13) Whether the residential or one of the parents [sic] 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;
(15) * * *
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{¶10} Applying the relevant best interest factors under R.C. 3109.051(D) to
the case before us reveals that the trial court determined that a modification of
Robert’s visitation was not in the children’s best interest. Specifically, in its
September 15, 2017 amended judgment entry, the trial court found as follows:
“* * * the prior interaction and interrelationship between the
children and their father has been strained for several years, See
[sic] Ohio Revised Code §3109.051(D)(1).
All parties and the children in [sic] reside in Marion, Ohio,
see Ohio Revised Code §3109.051(D)(2).
Plaintiff/Mother is employed. Defendant/Father is not
employed. * * * The children are all school age and attend Elgin
Schools, see Ohio Revised Code §3109.051(D)(3).
The parties have three (3) children, Katelyn, dob: 12/22/04,
Roston, dob: 05/15/07, and Kareston, dob: 04/05/08. See Ohio
Revised Code 3109.051(D)(4).
The Court finds the children are well adjusted to their
mother’s home, their school and community. All three children
perform well academically. They are also engaged in
extracurricular activities. See Ohio Revised Code
§3109.051(D)(5).
The Court finds the children and father struggle with their
relationship. Counseling to address the relationship was provided
with little to no success. * * * The Court interviewed the children.
All the children expressed reservations regarding visits with
Father. The children and Father attempted joint counseling.
Two sessions occurred and limited progress was made, as Father
did not continue to counsel. The children expressed their desire
that visits continue to be supervised should visits be continued.
See Ohio Revised Code §3109.051(D)(6).
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* * * Roston suffers from anxiety for which he takes
medication and counsels, see Ohio Revised Code §3109.051(D)(7).
See also Ohio Revised Code §3109.051(D)(9).
All three children reside with Mother and appear to be well
bonded. See Ohio Revised Code §3109.051(D)(8).
Efforts to facilitate visitation have been extensive. Visits
occurred at the C•A•R•E | F•I•T• visitation center for an extended
period of time with limited results. Plaintiff/Mother made efforts
for the visits to be more engaging between Father and children by
providing a meal for the children and Defendant/Father to enjoy
at C•A•R•E | F•I•T•. Plaintiff/Mother also, * * *, arranged outings
at such places as the zoo, the Ohio State Fair, COSI and other
such activities for the children and father. Mother absorbed the
cost of these outings and maintained her distance to allow the
children and Father to experience these venues together. See
Ohio Revised Code §3109.051(D)(10).
Neither parent has been convicted or pleaded guilty of any
act that resulted in a child being adjudicated neglected or abused.
See Ohio Revised Code §3109.051(D)(11).
The residential parent has made significant efforts to
encourage and facilitate visitation between Father and the
children including paying for counseling for children and Father
and arranging activities for Father and children to do together,
See [sic] Ohio Revised Code §3109.051(D)(13).
Both parties continue to reside in Marion, Ohio. There has
been no notice to the Court of either party intending to relocate.
See Ohio Revised Code §3109.051(D)(14).”
(Doc. 149).
{¶11} In reviewing the record, we find the trial court was presented with
competent and credible evidence regarding the factors listed in R.C. 3109.051(D)
such as: the strained relationship between the children and their father; the
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children’s reservations of visiting with their father; the children’s wishes for
supervised visitation to continue; and the father’s lack of commitment to counseling
with the children to help reconcile their relationship. In its amended entry, the trial
court properly reviewed and discussed the factors under R.C. 3109.05(D) when
analyzing the best interests of the children in regards to Robert’s modification of
visitation motion. “An appellate court will not reweigh the evidence introduced at
trial; rather, we will uphold the findings of the trial court if the record contains some
competent, credible evidence to support the trial court’s conclusions.” Eggeman v.
Eggeman, 3d Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶27. In determining
whether competent, credible evidence exists, “[a] reviewing court should be guided
by a presumption that the findings of a trial court are correct, since the trial judge is
best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use those observations in weighing the credibility of the testimony”.
Bey v. Bey, 3d Dist. Mercer No. 10-08-12, 2009-Ohio-300, ¶15, quoting Barkley v.
Barkley, 119 Ohio App. 3d 155, 159.
{¶12} Thus, we find the trial court’s findings were not an abuse of discretion
because competent and credible evidence exists in the record as to whether it was
in the best interest of the children to have the standard local court visitation time
with their father. Accordingly, Robert’s sole assignment of error is not well taken
and is overruled.
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{¶13} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment entry of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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