Mack v. Mack

[Cite as Mack v. Mack, 2019-Ohio-2379.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
KARLA MACK, :
Appellee, : CASE NO. CA2018-09-179
: OPINION
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:
PHILLIP MACK, :
Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2014-11-1167
Cheryl R. Washington, 10 W. Second Street, Suite 2225, Dayton, Ohio 45402, for appellee
Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, Ohio 45069, for appellant
S. POWELL, J.
{¶ 1} Appellant, Phillip Mack ("Father"), appeals the decision of the Butler County
Court of Common Pleas, Domestic Relations Division, denying his request to be designated
as his son's residential parent for school purposes. Father also appeals from the domestic
relations court's decision modifying his parenting time schedule with his son. For the
reasons outlined below, we affirm.
Butler CA2018-09-179
Facts and Procedural History
{¶ 2} On November 23, 2015, Father and appellee, Karla Mack ("Mother"), were
divorced. The parties have one child, I.M., who was five years old at the time of the divorce.
Following their divorce, the parties were subject to a separation agreement and shared
parenting plan. As relevant here, the shared parenting plan provided Father with parenting
time and designated Mother as I.M.'s residential parent for school purposes. It is
undisputed that Mother has retained that designation at all times relevant.
{¶ 3} Following their divorce, both parties moved out of Ohio to pursue other
employment opportunities; Father moved to Pennsylvania in late 2016 while Mother moved
to North Carolina with I.M. in the summer of 2017. Since moving to North Carolina with
Mother, I.M. began attending school in Mother's local school district. While there, I.M. has
made friends and has participated in school sports. I.M. has never attended school in Ohio.
{¶ 4} On December 8, 2017, five months after Father moved back to Ohio, Father
filed a motion requesting the domestic relations court to modify the parties' shared parenting
plan by designating him as I.M.'s residential parent for school purposes. In support, Father
argued the modification would provide I.M. with a "structured environment" and allow him
"more contact with extended family members" located in Ohio. Father also moved the
domestic relations court to modify the parties' parenting time to coincide with his and
Mother's work schedules.
{¶ 5} On December 28, 2017, a hearing on Father's motion was held before a
domestic relations court magistrate. Both Father and Mother testified at this hearing. After
taking the matter under advisement, the magistrate issued a decision modifying the parties'
shared parenting plan by designating Father as I.M.'s residential parent for school
purposes. Despite Father and Mother living approximately nine hours apart, the magistrate
also modified the parties' parenting time by awarding Mother parenting time with I.M. on
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alternate weekends.
{¶ 6} Mother filed a number of objections to the magistrate's decision. Mother's
objections challenged the magistrate's decision designating Father as I.M.'s residential
parent for school purposes and the magistrate's decision modifying the parties' respective
parenting time. After receiving Mother's objections, the domestic relations court held a
hearing on the matter. Just as they had done at the hearing held before the domestic
relations court magistrate, both Father and Mother testified at this hearing.
{¶ 7} On August 2, 2018, the domestic relations court issued a decision that
affirmed in part, reversed in part, and modified the magistrate's decision. As pertinent to
this appeal, the domestic relations court rejected the magistrate's decision designating
Father as I.M.'s residential parent for school purposes. The domestic relations court also
rejected the magistrate's decision regarding the parties' respective parenting time
schedules, opting instead to implement a parenting time schedule that was dependent on
where Father was then stationed for work.
{¶ 8} Specifically, when Father's employment placed him within 50 miles of
Mother's residence in North Carolina, the domestic relations court ordered:
[Father] shall be able to exercise parenting time when within 50
miles of [Mother's] residence in North Carolina upon 24 hour
notice. If [Father] is in the area overnight and has a suitable
place for [I.M.] to stay, he may keep [I.M.] overnight for as long
as he is in the area, up to seven days. As an exception to the
transportation orders below, [Father] shall provide
transportation from his location to [Mother's] residence if she is
required to work. Otherwise, the parties shall meet in the middle
or alternate transportation.
{¶ 9} And, when Father's employment placed him within 100 miles of Mother's
residence in North Carolina, the domestic relations court ordered:
[Father] shall have alternate weekends if he is within 100 miles
of [Mother's] residence, with seven days notice. The weekends
shall begin from after school on the last day of school before the
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weekend, and end at 8 PM the evening before school starts.
This includes any long weekends.
{¶ 10} The domestic relations court also established a transportation order regarding
Father's parenting time on holidays and I.M.'s summer vacation. Specifically, the domestic
relations court ordered:
The parties shall meet in Weston, West Virginia, or another
agreed location located geographically between the parties'
residences. If [Father] is traveling for his work, [Mother] shall
agree to meet him halfway between his work location and her
residence, so long as the child does not incur total travel longer
than nine hours. [Mother] will switch shifts to provide this
transportation if necessary.
{¶ 11} The domestic relations court explained that it found these orders were in I.M.'s
best interest because:
It is not in [I.M.'s] best interest to travel for the approximate nine
hours between the parents' residences for less than three days
of parenting time. The court has fashioned specific parenting
time and transportation orders in the event that the parties are
geographically closer.
Appeal and Standard of Review
{¶ 12} Father now appeals from the domestic relations court's decision, raising two
assignments of error for review. Both of Father's assignments of error address the
modification of the parties' shared parenting plan. When a parent seeks to modify the terms
of the shared parenting plan, such as the case here, the best-interest standard in R.C.
3109.04(E)(2)(b) applies. Hall v. Hall, 12th Dist. Butler No. CA2018-05-091, 2019-Ohio-81,
¶ 21.
{¶ 13} Pursuant to R.C. 3109.04(E)(2)(b), the domestic relations court may modify
the terms of the shared parenting plan "if the court determines that the modifications are in
the best interest of the children[.]" Under this standard, and in accordance with R.C.
3109.04(F)(1), the domestic relations court must consider all relevant factors, including, but
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not limited to:
(1) The wishes of the child's parents regarding the child's care;
(2) 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;
(3) 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;
(4) The child's adjustment to the child's home, school, and
community;
(5) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(6) 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;
(7) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
{¶ 14} The domestic relations court's determination of what is in the best interest of
a child will not be reversed absent an abuse of discretion. McNeal v. Mahon, 12th Dist.
Clermont No. CA2015-11-094, 2016-Ohio-5373, ¶ 20. An abuse of discretion implies that
the court's attitude was unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist.
Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). "This highly deferential standard of review rests on the premise that
the trial judge is in the best position to determine the credibility of witnesses because he or
she is able to observe their demeanor, gestures, and attitude." Rarden v. Rarden, 12th
Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE DECISION DENYING APPELLANT'S MOTION TO BE DESIGNATED
RESIDENTIAL PARENT FOR SCHOOL PURPOSES WAS CONTRARY TO THE
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MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 17} In his first assignment of error, Father argues the domestic relations court
erred by denying his request to modify the parties' shared parenting plan by designating
him as I.M.'s residential parent for school purposes. We disagree.
{¶ 18} As noted above, we review the modification of a parties' shared parenting plan
designating a child's residential parent for school purposes for an abuse of discretion. In re
A.N.G.G., 12th Dist. Warren No. CA2018-08-084, 2019-Ohio-1294, ¶ 16. Such a review
requires this court to determine whether it was an abuse of discretion for the domestic
relations court to find it was in I.M.'s best interest for Mother to remain the child's residential
parent for school purposes. The domestic relations court reached its decision by analyzing
the best interest factors outlined in R.C. 3109.04(F)(1). The following is a summary of the
domestic relations court's best interest findings.
{¶ 19} Initially, as it relates to the parties' wishes regarding I.M.'s care, the domestic
relations court noted that Mother had been designated I.M.'s residential parent for school
purposes in the parties' shared parenting plan. But, as evidenced by Father's motion, the
domestic relations court found Father wanted to modify the parties' shared parenting plan
to designate him as I.M.'s residential parent for school purposes.
{¶ 20} Next, in regard to I.M.'s wishes, the domestic relations court noted that it had
reviewed the audio recording of the in camera interview between the magistrate and I.M.
Following this review, the common pleas court noted that it found I.M. had answered the
magistrate's questions appropriately. The domestic relations court also noted that its review
of the in camera interview proved that I.M. "loves both parents and enjoys his parenting
time with both of them."
{¶ 21} As for I.M.'s interaction and interrelationship with his parents and any other
person who may significantly affect his best interest, the domestic relations court found
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Mother had been designated I.M.'s residential parent for school purposes since I.M. had
first started attending school. The domestic relations court also found Mother had secured
a tutor for I.M. to assist in his academic progress, as well as a therapist "for the purposes
of helping [I.M.] adjust to his father's frequent absences due to work responsibilities."
{¶ 22} As it relates to Father, the domestic relations court found Father had recently
moved from his apartment in Pennsylvania back to Ohio where he resided with his mother
and sister. However, despite Father now residing with family in Ohio, the domestic relations
court noted that Father's sister testified Father "was in the home approximately every other
weekend." The domestic relations court also found that Father's extended family and
girlfriend had acted as "caregivers" for I.M. due to Father's frequent absences for work.
{¶ 23} The domestic relations court further found Father had secured employment
with a local public school district that would allow him to have more consistent hours close
to home. But, as the domestic relations court found, "four months after filing his motions,
[Father] retained the job where he continues to travel extensively." The domestic relations
court also found Father's chosen employment required him to remain in the same locale
"for as long as the project lasts." This, as the record indicates, could last many months or
even years.
{¶ 24} In regard to I.M.'s adjustment to his home, school, and community, the
domestic relations court found I.M. had never attended school in Father's local school
district in Ohio. The domestic relations court instead found I.M. was enrolled in elementary
school in North Carolina "and likely has started the new school year there." The domestic
relations court also found Mother had "obtained after school assistance" for I.M. in reading
and math, as well as "obtained counseling for [I.M.] for assistance in dealing with his
infrequent contact with [Father.]"
{¶ 25} The domestic relations court further found in regard to Father, Father's
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girlfriend, and Father's mother:
[Father] was unable to testify which school the child would
attend if he were designated residential parent for school
purposes. He testified that he would either take the child to
school, or have him attend the school where his girlfriend's
children attend and catch the bus with his girlfriend's children.
[Father's girlfriend] testified as to the school that the child would
attend if [Father] were designated residential parent. She
further testified that her mother would be caregiver for
afterschool. She further testified this child is bonded to her
mother, although no other evidence was presented as to this
bond.
{¶ 26} As for the parent more likely to honor and facilitate court-approved parenting
time rights, the domestic relations court found Father had failed to communicate with Mother
on certain aspects of I.M.'s care. This includes Father failing to provide Mother with his
contact information and with proper notification regarding family vacations as required by
the parties' shared parenting plan. Specifically, the domestic relations court found Father
"did not communicate with [Mother] regarding the trip with [I.M.] to Gatlinburg, or his
girlfriend's transport of [I.M.] back to Ohio."
{¶ 27} As it relates to Mother, the domestic relations court found Mother had not
sought to diminish Father's parenting rights with I.M. The domestic relations court instead
found Mother "makes an effort" to communicate with Father. Yet, even then, the domestic
relations court found Mother had "failed to fully communicate and make decisions with
[Father]." Therefore, according to the domestic relations court, "neither party includes the
other in decision-making or information regarding this child."
{¶ 28} Moreover, when considering whether either parent had failed to make all child
support payments, including all arrearages, the domestic relations court found Father was
in arrears on his child support obligations dating back to the summer of 2017. However,
although in arrears, the domestic relations court noted Mother's testimony that she
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"believed" Father was still making payment towards his arrears, "but did not provide a recent
history."
{¶ 29} Finally, with regard to whether either parent had established a residence, or
is planning to establish a residence, outside of Ohio, the domestic relations court found
Father's current employment required him to remain "in one location for as long as a project
takes." This, as noted above, could last many months or even years. The domestic
relations court also found that when I.M. was supposed to be with Father in Ohio that Father
was oftentimes "unable to fully exercise his parenting time" due to his busy work schedule.
{¶ 30} Turning then to Mother, the domestic relations court noted that Mother had
moved to North Carolina with I.M. Due to this move, the domestic relations court found "[a]t
one time neither parent lived in the state of Ohio." The domestic relations court also found:
[Father] has returned and has established his permanent
residence as the house his mother and sister live in. [Mother]
was training for her employment for a period of time, which she
testified [precluded] her from participating in transportation. She
is no longer in training. She has set shifts. On alternate weeks
[Mother] works long hours during much of the week.
{¶ 31} Despite having some concerns with Mother's work schedule, the domestic
relations court noted it was also "concerned that [Father's] extended family and girlfriend
will be the primary caregivers for this child." The domestic relations court found this
problematic because "third parties are not subject to the court's jurisdiction. Parenting
orders cannot be enforced against them."
{¶ 32} Applying the abuse of discretion standard as outlined above, we find no error
in the domestic relations court's decision denying Father's request to modify the parties'
shared parenting plan by designating him as I.M.'s residential parent for school purposes.
That is to say the domestic relations court did not abuse its discretion by finding it was in
I.M.'s best interest for Mother to retain that designation. Father disputes the domestic
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relations court's decision by arguing the domestic relations court made a number of
incorrect factual findings and gave "insufficient consideration" to several of the best interest
factors. This, according to Father, resulted in the domestic relations court unduly focusing
on evidence that was hostile to him while at the same time ignoring evidence that was
unfavorable to Mother. We find no merit to Father's claims.
{¶ 33} Father's argument is essentially a challenge to the weight the domestic
relations court gave to each of the best interest factors. But, as this court has stated
previously, it is the role of the domestic relations court "'to determine the relative weight to
assign each factor, in relation to the others, when determining the [child's] best interest.'"
Manis v. Manis, 12th Dist. Warren No. CA2014-05-070, 2014-Ohio-5086, ¶ 22, quoting
Ruble v. Ruble, 12th Dist. Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 18. This court
should not, and will not, second-guess the domestic relations court's decision in regard to
the appropriate weight to be given to any one of those factors. In re A.B., 12th Dist. Butler
No. CA2009-10-257, 2010-Ohio-2823, ¶ 35; see, e.g., Albert v. Albert, 2d Dist. Montgomery
No. 24000, 2010-Ohio-6112, ¶ 32 ("[w]e defer to the trial court's determinations of the
parties' credibility and of the appropriate weight to be given to the statutory factors").
{¶ 34} Father also argues this court should reverse the domestic relations court's
decision and reinstate the magistrate's original fact findings and conclusions of law when
considering "the magistrate's unique position to make credibility determinations." This we
do not dispute. But, even when a matter is tried before a magistrate, "[i]t is the primary duty
of the [domestic relations] court, and not the magistrate, to act as a judicial officer." Hart v.
Spenceley, 12th Dist. Butler No. CA2011-08-165, 2013-Ohio-653, ¶ 12. This is because
the domestic relations court, which serves as the judicial officer and ultimate fact finder,
"retains the ability to employ its own judgment in a case even if it refers a matter to a
magistrate." Id. at ¶ 13, citing Koeppen v. Swank, 12th Dist. Butler No. CA2008-09-234,
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2009-Ohio-3675, ¶ 37. The domestic relations court is therefore "required to undertake an
independent review of the objected matters in order to ascertain that the magistrate has
properly determined the factual issues and properly applied the law." Panhorst v. Panhorst,
9th Dist. Summit No. 28959, 2019-Ohio-126, ¶ 21.
{¶ 35} The record indicates the domestic relations court adhered to its role as a
judicial officer by independently reviewing the magistrate's decision. The domestic relations
court specifically stated as much by noting it had conducted a de novo review of the record
and the hearing transcript. Therefore, when taking into consideration the role of the
domestic relations court, we find no error in the domestic relations court's decision making
its own fact findings, conclusions of law, and credibility determinations that were contrary
to those of the magistrate. This is particularly true here given the fact that the domestic
relations court judge heard testimony from both Father and Mother directly. The domestic
relations court was consequently able to make its own credibility determinations in deciding
what was in I.M.'s best interest.
{¶ 36} It is clear that Father believes he should be designated I.M.'s residential
parent for school purposes. However, "[w]hile a parent's wishes about the care and control
of his or her children must be considered by the court, 'the parent's wishes should not be
placed before a child's best interest.'" (Internal brackets omitted.) Hall v. Hall, 12th Dist.
Butler No. CA2018-05-091, 2019-Ohio-81, ¶ 22, quoting Harrold v. Collier, 107 Ohio St. 3d
44, 2005-Ohio-5334, ¶ 44. The domestic relations court, just as this court on appeal, must
act in a way that places I.M.'s best interest above all else. Therefore, when considering the
record properly before this court, the domestic relations court's decision denying Father's
request to modify the parties' shared parenting plan by designating him as I.M.'s residential
parent for school purposes was not an abuse of discretion. Accordingly, finding no abuse
of discretion in the domestic relations court's decision, Father's first assignment of error
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lacks merit and is overruled.
{¶ 37} Assignment of Error No. 2:
{¶ 38} THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING
APPELLANT'S PARENTING TIME.
{¶ 39} In his second assignment of error, Father argues the domestic relations court
erred by modifying the parties' shared parenting plan as it relates to his and Mother's
respective parenting time schedules. Specifically, Father challenges the domestic relations
court's decision allowing him parenting time with I.M. on alternate weekends only if "he is
within 100 miles" of Mother's residence in North Carolina or "up to seven days" if he is
"within 50 miles" of Mother's residence. We review the modification of a parties' shared
parenting plan regarding visitation or parenting time for an abuse of discretion. In re R.L.S.,
12th Dist. Warren No. CA2013-12-117, 2014-Ohio-3294, ¶ 23. We find no abuse of
discretion here.
{¶ 40} Father argues the domestic relations court abused its discretion by modifying
his parenting time schedule because the modification "effectively prevents" him from
spending time with I.M. other than on holidays and during I.M.'s summer vacation. Father
supports this claim by noting his employment typically requires him to travel to New York,
Pennsylvania, or New Jersey, but not North Carolina or the surrounding areas. This,
according to Father, creates an illusory parenting time schedule that is patently unfair when
considering it was Mother who made the "unilateral and unannounced" decision to move to
North Carolina.
{¶ 41} After a full and thorough review of the record, we find no abuse of discretion
in the domestic relations court's decision. Father's chosen employment, coupled with
Mother's move to North Carolina, required the domestic relations court to fashion an
unorthodox parenting time schedule to serve I.M.'s best interest. Given the unique facts
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and circumstances of this case, we commend the domestic relations court for fashioning
the parenting time schedule that it did. This is because, as the record indicates, the
domestic relations court went to great lengths to balance Father's request for additional
parenting time with I.M. with its findings regarding I.M.'s best interest. We find no error in
the domestic relations court's decision.
{¶ 42} In so holding, we note that Father requested parenting time with I.M. at least
one weekend each month. It is therefore apparent that Father would, at least at this point,
like to spend more time with his son. Due to I.M.'s struggles in coping with Father's frequent
absence from his life, it is clear that I.M. desires the same. However, as the domestic
relations court found, "[i]t is not in [I.M.'s] best interest to travel for the approximate nine
hours between the parents' residences for less than three days of parenting time." Given
I.M.'s young age and need for stability, we agree with the domestic relations court's
decision.
{¶ 43} We also agree with the domestic relations court's decision to put in place a
specific parenting time schedule and transportation order in the event that Father's
employment places him closer to Mother's residence in North Carolina. Although it appears
that Father's current employment typically requires him to travel to just New York,
Pennsylvania, or New Jersey, the record is devoid of any evidence indicating Father would
not be assigned to a project in North Carolina or the surrounding areas. Should that occur,
which for both Father and I.M.'s sakes we hope that it does, the parties are now fully aware
of their reciprocal obligations in providing I.M. with the opportunity to spend time with Father
should the opportunity arise.
{¶ 44} We have no doubt that Father would like to spend more time with I.M. And,
as noted above, we also have no doubt that I.M. would like to spend more time with Father.
But that does not mean Father can dictate when and where he should be able to exercise
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his parenting time. Nor does that mean Father can command I.M. to be transported from
North Carolina to Ohio should he happen to be at home in Ohio that weekend. It is I.M.'s
best interest that controls, not Father's. Therefore, finding no merit to any of the arguments
raised herein, Father's second assignment of error is overruled.
Conclusion
{¶ 45} The domestic relations court did not err by finding it was in I.M.'s best interest
for Mother to remain the child's residential parent for school purposes. We also find no
error in the domestic relations court's decision to modify the parties' shared parenting plan
as it relates to their respective parenting time schedules. Again, "[w]hile a parent's wishes
about the care and control of his or her children must be considered by the court, 'the
parent's wishes should not be placed before a child's best interest.'" (Internal brackets
omitted.) Hall, 2019-Ohio-81 at ¶ 22, quoting Collier, 2005-Ohio-5334 at ¶ 44. Therefore,
finding no error in the domestic relation court's decision, Father's two assignments of error
are overruled.
{¶ 46} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
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