DocketNumber: No. CA2004-06-127.
Citation Numbers: 2005 Ohio 5475
Judges: BRESSLER, J.
Filed Date: 10/17/2005
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Appellant and plaintiff-appellee, Paulo DaSilva, were married in June 1998. Their son, Kristian, was born on July 17, 2002. On August 8, 2003, appellee filed a divorce complaint. A trial was held on May 4, 2004.
{¶ 3} The trial court resolved the issue of the allocation of parental rights and responsibilities among other issues. Both parties sought shared parenting. Appellant, however, was the only party to submit a proposed shared parenting plan. Her plan sought designation of herself as residential parent for school purposes and for her son to reside with her at all times. Appellant's plan included parenting time for appellee with Kristian on every other weekend, each Wednesday evening, and from 5:00 p.m. to 6:30 p.m. Monday through Thursday.
{¶ 4} The trial court found that shared parenting was in the best interest of the child. The court rejected appellant's plan and instead imposed an alternate week schedule wherein the child spends one week at a time with each parent. The parent with whom he is not staying receives additional parenting time on Monday evenings.
{¶ 5} On May 28, the court issued a divorce decree and a shared parenting decree with an attached shared parenting order reflecting the alternate week schedule.
{¶ 6} Appellant now appeals raising three assignments of error. Because the resolution of the third assignment of error is dispositive, we shall address appellant's assignments of error out of order.
{¶ 7} Assignment of Error No. 3:
{¶ 8} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT MODIFIED APPELLANT'S PROPOSED SHARED PARENTING PLAN WITHOUT ORDERING APPELLANT TO MAKE CHANGES TO THAT PLAN."
{¶ 9} Appellant argues in her third assignment of error that the trial court violated R.C.
{¶ 10} The approval of a shared parenting plan under R.C.
{¶ 11} The procedure for a trial court's adoption of a shared parenting plan when only one parent files a plan is set forth in R.C.
{¶ 12} In the case at bar, the court-ordered plan was one of its own creation and was not submitted by either party. The court possessed the authority to ask appellant to resubmit a plan with appropriate changes. If the plan remained unsatisfactory, the court may have proceeded as if the requests for shared parenting had not been made. However, the court cannot create its own shared parenting plan. Thus the court violated the express procedures set forth in R.C.
{¶ 13} Assignment of Error No. 1:
{¶ 14} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ORDERED A SHARED PARENTING PLAN THAT REQUIRED THE PARTIES' CHILD TO BE SHUTTLED FROM HOUSE TO HOUSE ON A WEEK-TO-WEEK BASIS."
{¶ 15} Assignment of Error No. 2:
{¶ 16} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ADOPTED A SHARED PARENTING PLAN BECAUSE OF THE PARTIES' INABILITY TO COMMUNICATE."
{¶ 17} Appellant's first and second assignments of error have been rendered moot by the disposition of appellant's third assignment of error. Consequently, we need not decide them. See App.R. 12(A)(1)(c).
{¶ 18} Judgment reversed.
POWELL, P.J., and YOUNG, J., concur.