Bonner v. Deselm-Bonner

[Cite as Bonner v. Deselm-Bonner, 2011-Ohio-2348.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHAWN A. BONNER JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 10CA000033
COURTNEY DESELM-BONNER
(NKA FLANIGAN)
OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Domestic Relations Court, Case No.
02-DR-57
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 13, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
BARRY H. WOLINETZ JACQUELINE TRESL
KELLY M. GWIN 1500 Cowden Road
Wolinetz Law Offices, LLC New Concord, OH 43762
250 Civic Center Drive, Suite 100
Columbus, OH 34215
Guernsey County, Case No. 10CA000033 2
Hoffman, J.
{¶1} Plaintiff-appellant Shawn A. Bonner appeals the August 23, 2010 Findings
of Fact/Conclusions of Law/Judgment Entry entered by the Guernsey County Court of
Common Pleas, Domestic Relations Division, which overruled his motion to reallocate
parental rights. Defendant-appellee is Courtney Deselm-Bonner (nka Flanigan).
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant and Appellee were married on June 18, 1999, in Warren, Ohio.
Three children were born as issue of the union, to wit: Tyler (DOB 4/21/98), Shane
(DOB 11/29/99) and Jevon (DOB 11/14/01). Appellant and Appellee are both doctors of
osteopathic medicine. The parties are of different racial heritages.
{¶3} Appellant filed a Complaint for Divorce in the Muskingum County Court of
Common Pleas on December 19, 2001. Appellee filed a motion to dismiss for improper
venue or, in the alternative, a motion to transfer to Guernsey County. Appellee’s motion
for the transfer was granted. Upon transfer, Appellee filed an answer and counterclaim.
The trial court granted the parties a divorce via Judgment Entry filed November 5, 2002.
Appellee was designated as the residential parent and legal custodian of the parties'
minor children while Appellant was awarded parenting time.
{¶4} Appellee remarried in June, 2004, to Jackson Flanigan, a medical doctor.
Flanigan and his 13 year old son, Trevor, moved into the household with Appellee and
the children. On July 12, 2004, Appellant filed a Motion to Modify Parental Rights and
Responsibilities, alleging there had been “a number of substantial changes in the
circumstances of [Appellee] and the minor children ...” On September 10, 2004,
Appellee filed a Motion to Modify Parental Rights and Responsibilities, alleging there
Guernsey County, Case No. 10CA000033 3
had been “a number of substantial changes in the circumstances of [Appellant] and the
minor children ...” The trial court appointed a guardian ad litem for the minor children.
Following a hearing, the trial court denied Appellant's motion and modified the parenting
schedule. The trial court memorialized its decision via Judgment Entry filed on
December 30, 2005.
{¶5} On January 12, 2006, Appellant filed a Motion for New Trial pursuant to
Civ.R. 59. The next day, Appellee filed a Motion for Relief from Judgment pursuant to
Civ.R. 60(A), asking the trial court to clarify its December 30, 2005 ruling with respect to
Appellant's parenting time. Pursuant to an Entry filed on March 14, 2006, the trial court
denied Appellant's motion. In a separate Entry filed the same day, the trial court clarified
its December 30, 2005 Journal Entry with respect to parenting time. Appellant appealed
to this Court. We affirmed the trial court’s denial of Appellant’s motion to modify
parental rights and responsibilities, but reversed and remanded the matter to the trial
court to apply the correct statute in its consideration of the modification of parenting
time. Bonner v. Deselm-Bonner, Guernsey App. No. 06CA15, 2007-Ohio-2173. The
trial court issue a judgment entry on July 24, 2007, modifying Appellant’s parenting time.
{¶6} Appellant filed a motion to modify parental rights and responsibilities on
May 12, 2008, which he later voluntarily dismissed. On August 15, 2008, Appellant filed
another motion seeking to reallocate parental rights. Via Judgment Entry filed
November 12, 2008, the trial court ordered counseling for the minor children. Appellant
withdrew his August 15, 2008 motion. According to Appellant, Appellee did not obey the
trial court’s order regarding counseling for the children. As such, on October 16, 2009,
Appellant again filed a motion to reallocate parental rights. Appellant alleged an
Guernsey County, Case No. 10CA000033 4
unstable and volatile relationship between Appellee and Flanigan, which was negatively
affecting the children; aggressive, inappropriate behavior toward the children by
Flanigan; alcohol consumption by Appellee; and questionable judgment used by
Appellee. On October 26, 2009, Appellant filed a motion to reappoint the guardian ad
litem. The trial court granted the request for reappointment on October 27, 2009.
{¶7} The guardian ad litem filed her initial report on June 15, 2010, and an
amended report on June 17, 2010, which changed two words. On August 3, 2010,
Appellee filed a motion asking the trial court to order Appellant’s parenting time be
supervised or, in the alternative, to order Appellant, during his parenting time, to return
the children to Appellee at least two hours before any scheduled event/activity.
Appellee also asked the trial court to terminate Appellant’s overnight parenting time on
school nights. The guardian ad litem filed a supplemental report on August 12, 2010.
The matter came on for hearing on June 21, 2010, and August 16, 2010. The trial court
conducted an in-camera interview with the children prior to the commencement of the
August 16, 2010 hearing. A transcript of the interview is filed under seal. A total of 18
witnesses, including Appellant and Appellee, testified.
{¶8} Via Findings of Fact/Conclusions of Law/Judgment Entry filed August 23,
2010, the trial court denied Appellant’s motion to reallocate parental rights.
{¶9} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION WHEN IT DENIED FATHER’S MOTION TO BE DESIGNATED
LEGAL CUSTODIAN OF THE PARTIES’ MINOR CHILDREN.
Guernsey County, Case No. 10CA000033 5
{¶11} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION WHEN IT FAILED TO FOLLOW ORC 3109.051 IN DETERMINING
WHETHER A MODIFICATION OF PARENTING TIME IS IN THE CHILDREN’S BEST
INTEREST.”
I
{¶12} In his first assignment of error, Appellant maintains the trial court erred
and abused its discretion in denying his request to be designated the legal custodian of
the parties’ minor children.
{¶13} R.C. 3109.04(E)(1) governs a modification of a prior custody decree, and
provides:
{¶14} “(E)(1)(a) 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:
{¶15} “(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.
Guernsey County, Case No. 10CA000033 6
{¶16} “(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.
{¶17} “(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.”
{¶18} A trial court's decision to modify custody pursuant to this statute will not be
disturbed on appeal absent an abuse of discretion. This standard of review is applied
because it is imperative trial courts are given wide latitude in these cases.
{¶19} In Davis v. Flickinger, the Ohio Supreme Court examined the trial court's
role in addressing modification issues:
{¶20} “In determining whether a ‘change’ has occurred, we are mindful that
custody issues are some of the most difficult and agonizing decisions a trial judge must
make. Therefore, a trial judge must have wide latitude in considering all the evidence
before him or her-including many of the factors in this case-and such a decision must
not be reversed absent an abuse of discretion.” Id.(Citation omitted).
{¶21} The reason for this standard of review is that the trial judge has the best
opportunity to view the demeanor, attitude, and credibility of each witness, something
that does not translate well on the written page. Id. “A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the credibility
of the witnesses and evidence submitted before the trial court. A finding of an error in
law is a legitimate ground for reversal, but a difference of opinion on credibility of
witnesses and evidence is not. The determination of credibility of testimony and
Guernsey County, Case No. 10CA000033 7
evidence must not be encroached upon by a reviewing tribunal* * *.” Seasons Coal Co.
v. Cleveland (1984), 10 Ohio St.3d 77, 81.
{¶22} Upon review of the record, we find the trial court did not abuse its
discretion in denying Appellant’s motion to reallocate parental rights. Appellant stresses
the volatile nature of Appellee and Flanigan’s relationship as well a sexual abuse
incident involving Flanigan’s son and two of the minor children as evidence a change in
circumstances had occurred and modification was necessary. While we agree with
Appellant these events could negatively impact the children, we find no record
demonstration the situations herein had a material effect on the children to warrant
modification. See, Davis, supra at 417-18. The guardian ad litem reported the issues
between Appellee and Flanigan were being resolved through marriage counseling, the
step-brother had been removed from the home, and the children were doing well in
school and were happy living with Appellee and Flanigan. Alternatively, Appellee
presented evidence Appellant used foul language in front of the children, acted
aggressively, and often did not have the children prepared for school and extracurricular
activities.
{¶23} Appellant’s first assignment of error is overruled.
II
{¶24} In his second assignment of error, Appellant contends the trial court erred
and abused its discretion in failing to consider the factors set forth in R.C. 3109.051 in
determining whether a modification of parenting time was in the children’s best interest.
R.C. 3109.051(D) provides:
Guernsey County, Case No. 10CA000033 8
{¶25} “(D) In determining whether to grant parenting time to a parent pursuant to
this section or section 3109.12 of the Revised Code or companionship or visitation
rights to a grandparent, relative, or other person pursuant to this section or section
3109.11 or 3109.12 of the Revised Code, in establishing a specific parenting time or
visitation schedule, and in determining other parenting time matters under this section
or section 3109.12 of the Revised Code or visitation matters under this section or
section 3109.11 or 3109.12 of the Revised Code, the court shall consider all of the
following factors:
{¶26} “(1) The prior interaction and interrelationships of the child with the child's
parents, siblings, and other persons related by consanguinity or affinity, and with the
person who requested companionship or visitation if that person is not a parent, sibling,
or relative of the child;
{¶27} “(2) The geographical location of the residence of each parent and the
distance between those residences, * * *;
{¶28} “(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;
{¶29} “(4) The age of the child;
{¶30} “(5) The child's adjustment to home, school, and community;
{¶31} “(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 or companionship or visitation by the
grandparent, relative, or other person who requested companionship or visitation, as to
Guernsey County, Case No. 10CA000033 9
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;
{¶32} “(7) The health and safety of the child;
{¶33} “(8) The amount of time that will be available for the child to spend with
siblings;
{¶34} “(9) The mental and physical health of all parties;
{¶35} “(10) Each parent's willingness to reschedule missed parenting time and to
facilitate the other parent's parenting time rights, * * *;
{¶36} “ * * *
{¶37} “(16) Any other factor in the best interest of the child.”
{¶38} The central focus of any visitation order is the best interests of the
children. Kelm v. Kelm (2001), 92 Ohio St.3d 223, 226, 749 N.E.2d 299. “A trial court
may limit or restrict visiting rights of a party in order to further the child's best interest.”
Callender v. Callender, 7th Dist. No. 03–CA–790, 2004–Ohio–1382, at ¶ 31. The court
has the “power to restrict the time and place of visitation, to determine the conditions
under which visitation will take place and to deny visitation rights altogether if visitation
would not be in the best interests of the child.” Id., quoting Anderson v. Anderson, 147
Ohio App.3d 513, 2002–Ohio–1156, 771 N.E.2d 303, at ¶ 18, and Jannetti v. Nichol
(May 12, 2000), 7th Dist. No. 97 CA 239.
{¶39} If it is clear from the record the court considered the factors in R.C.
3109.051, even if the statute or the factors are not specifically referenced, we will not
find an abuse of discretion. Troyer v. Troyer, 7th Dist. No. 09 JE 5, 2010–Ohio–3276, at
¶ 36, 188 Ohio App.3d 543, 936 N.E.2d 102. “[I]t is not an abuse of discretion when it
Guernsey County, Case No. 10CA000033 10
appears from the journal entry that some of the factors under that section were
addressed.” Bernard v. Bernard (Jan. 30, 2002), 7th Dist. No. 00 CO 25. Even when the
trial court cites the wrong statute as the basis of the factors it is considering, if the
record reveals that the proper factors were considered, the trial court's judgment
regarding visitation will be affirmed. Campana v. Campana, 7th Dist. No. 08 MA 88,
2009–Ohio–796, ¶ 51; see also, Troyer, supra, at ¶ 36.
{¶40} Here, the trial court does not explicitly refer to the R.C. 3109.051(D)
factors in its judgment entry. Nonetheless, it is clear from the record the trial court did,
in fact, consider the factors. The record reveals a great deal of conflict caused by
Appellant during drop-offs and pick-ups surrounding visitation. Appellant did not return
the children’s school materials, sporting equipment, and musical instruments when he
returned them to Appellee after his visits. This caused a great deal of anxiety for the
children. Further, Appellant did not establish the current visitation schedule was no
longer in the children’s best interest.
{¶41} Appellant’s second assignment of error is overruled.
Guernsey County, Case No. 10CA000033 11
{¶42} The judgment of the Guernsey County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise______________________
HON. JOHN W. WISE
Guernsey County, Case No. 10CA000033 12
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHAWN A. BONNER :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
COURTNEY DESELM-BONNER :
(NKA FLANIGAN) :
:
Defendant-Appellee : Case No. 10CA000033
For the reasons stated in our accompanying Opinion, the judgment of the
Guernsey County Court of Common Pleas is affirmed. Costs assess to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE