In re T.M.M.

[Cite as In re T.M.M., 2017-Ohio-9219.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NO. 17 CO 0025)
T.M.M., )
DOB: 11/28/02, ) OPINION
)
T.D.M., )
DOB: 6/15/04. )
)
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas Juvenile Division of Columbiana
County, Ohio
Case No. P2004-0299-1 & -2
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty John D. Falgiani, Jr.
P. O. Box 8533
Warren, Ohio 44484
For Defendant-Appellee: Atty Albert A. Palombaro
4822 Market St.
Youngstown, Ohio 44512
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 21, 2017
[Cite as In re T.M.M., 2017-Ohio-9219.]
ROBB, P.J.
{¶1} Appellant Brian McCormack (“the father”) appeals the decision of the
Columbiana County Common Pleas Court, Juvenile Division, denying his motion for
shared parenting and his motion to hold Appellee Jennifer Lease (“the mother”) in
contempt for interfering with his parenting time. The father contends the court’s
failure to implement a remedy addressing his youngest child’s refusal to visit him
effectively deprived him of all parenting time with the child. He takes issue with
various findings made by the court, including whether the mother should have been
held in contempt and whether shared parenting was in the children’s best interests.
For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} The parties have two children: Child A, born in 2002, and Child B, born
in 2004. In 2007, the father filed a petition to recognize a parental relationship,
establish parental rights and responsibilities, and formalize parenting time. An
agreed entry established parenting time in an amount no less than the local standard
schedule, which granted parenting time to the nonresidential parent every other
weekend plus a midweek visit one week and two midweek visits the next week.
(9/18/07 J.E.) The midweek visits were terminated during the school year by an
agreed entry in 2009, and the standard schedule was reinstated in 2013. (6/15/06
J.E.); (9/13/13 J.E.) The midweek parenting time was reduced to one day a week in
2014. (8/5/14 J.E.)
{¶3} On August 5, 2016, the mother filed a motion to modify the father’s
parenting time. She sought to eliminate the midweek visit, claiming it interfered with
school work and extracurricular activities, partly due to travel time from their house in
Salem to the father’s house in Poland. The mother also filed a motion to show cause
against the father, alleging issues with summer parenting time and phone access.
{¶4} On the day the motions were to be heard, September 9, 2016, the
father filed a “motion to modify the current allocation of parental rights and
companionship” to shared parenting; he stated there were substantial changes of
circumstances due to his new, less-demanding work schedule and described the
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current plan as disjointed. His proposed shared parenting plan sought alternating
weeks of parenting time. He filed a motion to modify child support to reflect his
desired additional time with the children. The father also filed a motion to show
cause against the mother, alleging she manipulated the children’s schedule to
prevent his exercise of parenting time, interfered with communication, and refused to
communicate with the father except by letter. As to Child B (who was twelve years
old), the father also claimed the mother refused to require this child to visit with him.
{¶5} On the day the cross-motions were to be heard, in November 2016, the
case was continued for the appointment of a guardian ad litem. The hearing
proceeded before a magistrate on February 21, 2017. The mother testified she did
not work as she was receiving permanent total workers’ compensation for a back
injury. The children live with her and her boyfriend, whom she described as fulfilling
the role of a step-father for the children. The children have relatives living in the
vicinity of her house. The mother acknowledged she and the father communicated
poorly; she believed he did not listen when they talk and would not allow her to
speak, even when she called about a simple issue. (Tr. 39). She used letters for
most communication with the father.
{¶6} She did not consent to the father’s shared parenting plan and opined it
would be “too much of a hassle” for the children. For example, Child A stayed after
school most days for weight-lifting, but the father’s plan proposed he would pick up
Child B from school during his week and wait until Child A was done with his activity.
(Tr. 42). She believed even the midweek visit (during the school year) was hard on
the children due to their schedules. (Tr. 11-12). Child A was about to begin baseball
which would be followed by football. (Tr. 9-10, 13). Child B would have soccer in the
summer and fall and talked about starting basketball thereafter. (Tr. 13). The mother
pointed out that the father lives 40 to 45 minutes from the children’s school. (Tr. 14).
The father confirmed this estimate and said he would drop them off and pick them up
at school on his way to and from work in Steubenville (from his home in Poland).
Although the children live five minutes from their school, the father believed the
children spent 30-35 minutes on the bus to school. (Tr. 62).
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{¶7} The mother disclosed Child B began resisting visits with the father
around Christmas of 2015. At that time, she said she spent three days talking Child
B into spending the holidays with his father. She called the father to explain the
delicate situation and lamented the father’s refusal to listen to her while he
complained about his own hurt feelings. (Tr. 32, 39). When the father was
exercising two weeks of summer parenting time in June, the mother said the police
assisted her in retrieving the children so she could exercise time with Child B on his
birthday. Child B resisted returning to the father’s house despite the mother’s
requests; however, her boyfriend was able to convince the child to return for the
summer parenting time. (Tr. 26).
{¶8} When asked what she has done about Child B’s refusal to visit, which
began in July 2016, the mother said: “I have called the Sheriff’s Department, nobody
will get involved. They will not force the kid out of the car. I cannot get the kid to go.
I have talked to him. I have pleaded with him. Nothing.” (Tr. 36-37). The mother
testified she never told the child he did not have to visit but rather encouraged him to
visit his father. (Tr. 40-41). She said her boyfriend also tried to convince Child B to
visit with the father. (Tr. 31). The mother testified the child has many reasons for his
refusal that have “built up.” She was unaware of some of the child’s reasons, opining
he is “holding in” some issues. (Tr. 41). She knew about other reasons, including: a
threat to return the child’s basketball hoop and keep his birthday money; money
missing from the child’s wallet; a threat to “bash his teeth in” after the child was
disrespectful; the father said the mother failed to provide the child proper footwear in
front of other parents; flea bites; animal waste in the child’s bed; the girlfriend told the
child about court proceedings involving her child’s father; the girlfriend accused the
mother of lying; they suggested they would put the mother in jail; the girlfriend’s
daughter scratched the child’s neck; and the girlfriend’s daughter threw a piece of
wood at him causing a bruise on his back. (Tr. 32-33).
{¶9} The father lived with his girlfriend, who had shared parenting of her
eleven-year-old daughter (one week on and one week off). They lived in a three
bedroom, one bathroom rental house in Poland Village. His family did not live in the
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area. The father changed branches at his employment (from Pittsburgh to
Steubenville) and stated his workload was reduced and can be partly performed at a
local office or at home. (Tr. 110). The father and his girlfriend disputed knowledge of
many of the issues outlined by the mother as to Child B. The father testified that he
has been unable to exercise parenting time with Child B since he brought the child
home on July 8, 2016.
{¶10} He explained an argument which occurred as they were leaving his
house that day: the father’s girlfriend asked why Child B appeared to be “hiding”
outside; she demanded the child hand over his phone and his iPod as they were
entering the vehicle; the child refused to relinquish his iPod; the father declared he
would look at anything he wanted on the child’s electronic devices; the father
instructed the child not to bring the device back to the father’s house; the father
advised the child he would not be granted access to his phone when he returned;
and the father indicated he would be returning the basketball hoop they just
purchased with the child’s birthday money. (Tr. 54-55).
{¶11} Although the father’s visits with Child A (who was 14 years old) were
uninterrupted, Child B refused to return and would hang up the phone if the father
tried to call him. (Tr. 60). He noted Child A seemed to enjoy the individual time with
him for the first several months after Child B stopped visiting. (Tr. 77).
{¶12} The father sought shared parenting as he wanted more time with the
children and believed his plan would eliminate petty issues and provide stability. (Tr.
63, 76). He said the parents would not have to meet for transfer because one parent
would get the children to school Monday morning and the other would pick them up
at school Monday afternoon. (Tr. 76). As discussed further infra, the father
mentioned counseling for him and Child B, acknowledging he did not file a motion
seeking counseling. The father also stated the guardian ad litem tried to arrange for
him to meet with Child B the prior week but the child refused. (Tr. 94, 97).
{¶13} The guardian ad litem testified she tried to resolve the situation with
Child B, but he would not “budge” or discuss the situation. When she asked whom
he would speak to about the situation, the child indicated he would talk to the judge.
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(Tr. 149). He repeated this when she tried to arrange dinner with the father, and she
then explained to him it would be a magistrate. (Tr. 154). She did not believe the
mother exercised undue influence over the child regarding the situation. (Tr. 150-
151, 161, 163). After she explained the father’s shared parenting plan to the
children, they voiced they did not want to switch to shared parenting (as it would be
“too much”) but agreed with the current schedule (which included every other
weekend and one midweek visit). (Tr. 155-157). The guardian ad litem
recommended the current court-ordered schedule as well. (Tr. 156). The father’s
attorney asked if she believed counseling with the child and the father would be
appropriate, and she responded in the affirmative. (Tr. 151). The magistrate then
invited the attorneys to remain for the in camera interview with the children. (Tr.
165).
{¶14} On March 24, 2017, the magistrate’s decision was released, setting
forth various findings and conclusions. The court adopted the Magistrate’s decision
as its own entry the same day. The court denied the mother’s motion to eliminate the
father’s midweek parenting time and the father’s request for shared parenting. The
court concluded the mother should remain the residential parent and found shared
parenting and/or a designation of the father as residential parent was not in the
children’s best interests. The court also denied both parties’ motions to hold the
other in contempt. The court advised the parties to strictly comply with the prior
parenting time order.
{¶15} The father filed timely objections. He contested: the mother’s
testimony that she “pleaded” with Child B to visit his father; the failure to make
findings on what Child B said during the in camera interview as to why he refused to
visit the father; the denial of the father’s motion for contempt against the mother; the
failure to implement a remedy such as reconciliation counseling; the finding that the
mother is more likely to facilitate visitation; the failure to find changed circumstances
due to the child’s refusal to visit; the failure to find it would be in the children’s best
interests to change to shared parenting; and the cumulative claim that this all resulted
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in a de facto elimination of parenting time with Child B. On July 13, 2017, the trial
court overruled the father’s objections.
ASSIGNMENT OF ERROR
{¶16} The father sets forth one assignment of error:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
EFFECTIVELY TERMINATING APPELLANT’S PARENTAL RIGHTS CONTRARY
TO LAW.”
{¶17} In framing the issue presented, the father claims the court’s decision
maintains the status quo which in actuality means he will not be able to exercise
parenting time with Child B because this child has refused to attend the visits. The
father sets forth multiple arguments about the decision on his motions. The trial court
denied two motions filed by the father: a motion to show cause asking to hold the
mother in contempt and a motion to reallocate parenting time to shared parenting.
{¶18} The trial court’s decision on contempt is not to be disturbed in the
absence of an abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d
69, 75, 573 N.E.2d 62 (1991). Likewise, a reviewing court will not overturn the trial
court’s decision on custody, whether an initial allocation or a modification, unless the
trial court abused its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674
N.E.2d 1159 (1997); Pater v. Pater, 63 Ohio St.3d 393, 396, 588 N.E.2d 794, 797
(1992). An abuse of discretion exists if the trial court's decision was unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). A decision is unreasonable if it is unsupportable by any sound
reasoning process. See AAAA Ents., Inc. v. River Place Community Urban Redev.
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) (abuse of discretion review
typically involves a determination of whether a decision was unreasonable). “When
applying the abuse of discretion standard, a reviewing court is not free to merely
substitute its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d
135, 137-138, 566 N.E.2d 1181 (1991).
{¶19} We begin with the argument that the court erred in denying the father’s
motion for contempt against the mother based upon his allegation the mother willfully
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withheld or otherwise prevented parenting time between the father and Child B. He
discounts the mother’s testimony that she “pleaded” with Child B to visit the father.
{¶20} The mother’s testimony on this topic was set forth supra: she
expended great effort to change the child’s mind when he first wanted to stop visiting
the father; she failed a few months later when the child refused again; her boyfriend
talked the child into returning for the father’s summer parenting time after his
birthday; when this parenting time concluded with an argument between the child and
the father’s girlfriend and between the child and the father, the child adamantly
refused to visit the father; the mother said she pleaded with him; she said she did not
discourage the child from visiting the father but rather encouraged him to accompany
his brother on the visits; she unsuccessfully asked the police for help removing the
child from her car; and her boyfriend tried to convince the child as well. Both parents
have refrained from resorting to dragging the child from the mother’s car to the
father’s car. The guardian ad litem opined the child’s decision was not a result of
improper influence on the mother’s part. We also note Child A, who is two years
older than Child B, attended all visits in satisfaction of the father’s court-ordered
parenting time.
{¶21} The mother’s credibility was a matter within the province of the fact-
finder. See Davis, 77 Ohio St.3d at 418-419 (“This is even more crucial in a child
custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.”). “[T]he 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. at 418. The trier of fact “is best
able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony” and the appellate 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.” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 80-81, 461 N.E.2d 1273 (1984). It was not unreasonable, unconscionable,
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or arbitrary to refuse to hold the mother in contempt for the twelve-year-old child’s
refusal to cooperate in the parenting time transfer.
{¶22} Next, we address the argument that the magistrate, after conducting the
in camera interview of Child B and finding the child refused to visit his father, should
have explained why Child B refused to visit the father. The statute applicable to the
allocation of parental rights, whether initial or modification proceedings, provides:
In determining the child's best interest for purposes of making its
allocation of the parental rights and responsibilities for the care of the
child and for purposes of resolving any issues related to the making of
that allocation, the court, in its discretion, may and, upon the request of
either party, shall interview in chambers any or all of the involved
children regarding their wishes and concerns with respect to the
allocation.
R.C. 3109.04(B)(1). See also R.C. 3109.051(C) (in determining parenting time). If
the court interviews a child: “The court, in its discretion, may and, upon the motion of
either parent, shall appoint a guardian ad litem for the child.” R.C. 3109.04(B)(2)(a).
{¶23} “The interview shall be conducted in chambers, and no person other
than the child, the child's attorney, the judge, any necessary court personnel, and, in
the judge's discretion, the attorney of each parent shall be permitted to be present in
the chambers during the interview.” R.C. 3109.04(B)(2)(c). See also R.C. 3109.04
(B)(3) (“No person shall obtain or attempt to obtain from a child a written or recorded
statement or affidavit setting forth the child's wishes and concerns regarding the
allocation of parental rights and responsibilities concerning the child.”)
{¶24} “If the court determines that it would be in the best interests of the child
to determine the child's wishes and concerns with respect to the allocation, it shall
proceed to make that determination.” R.C. 3109.04(B)(2)(b). Compare this to the
preceding sentence in R.C. 3109.04(B)(2)(b): “If the court determines that, because
of special circumstances, it would not be in the best interest of the child to determine
the child's wishes and concerns with respect to the allocation, it shall not determine
the child's wishes and concerns with respect to the allocation and shall enter its
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written findings of fact and opinion in the journal.” From this, it has been concluded,
a trial court is not required to issue findings of fact pertaining to an in camera
interview unless the court decides not to determine the child’s wishes and concerns
with respect to the allocation. Donovan v. Donovan, 110 Ohio App.3d 615, 619, 674
N.E.2d 1252 (12th Dist.1996)
{¶25} The statutory best interest test for allocating parental rights includes the
following factor: “If the court has interviewed the child in chambers pursuant to
division (B) of this section 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 * * *.” R.C. 3109.04(F)(1)(b). The
next factor concerns the interaction and interrelationship with certain individuals. See
R.C. 3109.04(F)(1)(c). Addressing this factor, the magistrate found Child B refuses
to visit or be involved with the father. Elsewhere, the magistrate found the
relationship between the father and Child B “is clearly estranged at this point.”
Referring to R.C. 3109.04(F)(1)(b), the magistrate determined, “Both children wished
to continue to live with their mother under the current arrangement.” The court thus
made a determination of the child’s wishes from what the magistrate learned at the in
camera interview. The attorneys were invited to stay for the interview; whether they
accepted the invitation is unknown.
{¶26} The in camera interview is considered confidential. As the father’s brief
points out, this confidentiality is bolstered by a local rule. Pursuant to Columbiana
County Juvenile Court Rule 9.7, the record or transcript of the in camera interview
“shall be sealed, to be opened only by the Court or upon order of the Court.” The
local rule also states: “Attorneys may have access to the transcript of the child’s
interview only upon written motion and judgment entry signed by the Court” and “The
parents shall have no access to the report of the interview, even if the record has
been transcribed for purposes of appeal or objections.”
{¶27} If the trial court explained in detail the reasoning behind the child’s
wishes expressed at the interview, confidentiality could be negatively affected. The
father is seeking any details the magistrate learned about why Child B refused to visit
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him. Citing confidentiality principles surrounding the in camera interview and the
resulting transcript, the Fifth District overruled a party’s argument that “the magistrate
and the trial court erred and abused their discretion by failing to make specific
findings of fact developed in the in-camera interview of the parties' minor children and
in sealing the record of the proceeding * * * *.” Lawson v. Lawson, 5th Dist. No. 13-
CA-8, 2013-Ohio-4687, ¶ 51-58. See also Myers v. Myers, 170 Ohio App.3d 436,
2007-Ohio-66, 867 N.E.2d 848, ¶ 46-55 (reviewing other districts). Similarly, the
Twelfth District overruled an argument about a sealed in camera transcript where it
was claimed “the parties were not put on notice of any accusations made” by the
children during the in camera interview. Willis v. Willis, 149 Ohio App.3d 50, 2002-
Ohio-3716, 775 N.E.2d 878, ¶ 15 (12th Dist.).
{¶28} Although the court may reveal the child's choice of residential parent,
“all confidentiality from the in camera interview is not lost or illusory.” Chapman v.
Chapman, 2d Dist. No. 21652, 2007-Ohio-2968, ¶ 28. See also Nentwick v.
Nentwick, 7th Dist. No. 96-JE-27 (Feb. 18, 1998) (rejecting an argument about a
sealed transcript of an in camera interview). The magistrate did not abuse its
discretion in failing to detail what was learned from Child B during the in camera
interview, besides his preference that he remain living with his mother under the
current arrangement.
{¶29} The father’s brief also suggests the trial court should have conducted its
own in camera interview of the children, citing Schottenstein v. Schottenstein, 10th
Dist. No. No. 00AP-1088, 2001-Ohio-3987. An in camera interview is only mandatory
upon request of a party. R.C. 3109.04(B). This requirement is satisfied when a
magistrate conducts the interview; this is the nature of the magistrate’s position. See
Juv.R. 40(C)(1)-(2) (juvenile court magistrates are authorized to determine any
motion in any case and to conduct the trial of any case that will not be tried to a jury
{with the exception of a serious youthful offender case} and to do everything
necessary for the efficient performance of those responsibilities). See also Civ.R. 53.
The father’s objections did not ask the trial court to subject his children to another in
camera interview. Compare Schottenstein, 10th Dist. No. 00AP-1088 (where the
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children, who were named as parties, and the mother objected to the magistrate’s
custody decision and requested the trial judge to conduct his own interview of the
children and where additional evidence arose after the magistrate’s hearing).
{¶30} “Whether or not objections are timely filed, a court may adopt or reject a
magistrate's decision in whole or in part, with or without modification. A court may
hear a previously-referred matter * * *.” Juv.R. 40(D)(4)(b) (or return a matter to a
magistrate or take additional evidence1). The decision to hear a previously-referred
matter is discretionary with the court. See, e.g., Snyder v. Snyder, 8th Dist. No.
95421, 2011-Ohio-1372, ¶ 39; Noe v. Noe, 5th Dist. No. 07-COA-047, 2008-Ohio-
1700, ¶ 17. There is no indication a subsequent in camera interview was required or
would have been useful in ruling on the objections presented in this case. Contrary
to the father’s argument, the trial court was not required to sua sponte hold its own in
camera interview in this previously-referred matter.
{¶31} On his shared parenting request, the father asserts Child B’s refusal to
visit him for a continuous and extended period of time constituted a sufficient change
of circumstances to justify a modification of parental rights. Initially, we observe the
father’s motion to modify the allocation of parental rights to shared parenting said the
change of circumstances was his new flexibility in employment; nevertheless, the
contempt request in the same motion alleged the mother was refusing to require the
child to attend visitation, and there was testimony on the child’s refusal to visit for
many months.
{¶32} The court made the following notable statements: (1) “whether or not
any change in circumstances can be found in the present case, which the Court does
not find, the best interests of [the children] requires that the mother remain their
residential parent and legal custodian and that the father’s request for shared
parenting be denied”; and (2) “Even if a change of circumstances can be found,
which this Court does find, modification is not in the best interests of these children
1In ruling on objections, “the court may hear additional evidence but may refuse to do so unless the
objecting party demonstrates that the party could not, with reasonable diligence, have produced that
evidence for consideration by the magistrate.” Juv.R. 40(D)(4)(d).
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as demonstrated by analysis of the factors [referring to prior analysis] * * * In any
event, shared parenting is not in the children’s best interests.” (3/24/17 J.E. at 10-
11).
{¶33} First, we note the conflict between the two clauses as to whether the
court found changed circumstances; one says “does not find” and one says “does
find.” Second, we note the court specifically made an alternative holding denying the
father’s request “whether or not any change in circumstances can be found” due to
the court’s decision on the children’s best interests.2 If shared parenting is not in the
children’s best interests, then changed circumstances would not assist the father’s
cause. This leads to the father’s next argument contesting the court’s finding that
shared parenting was not in the children’s best interests and/or it was in the
children’s best interests to designate the mother as the residential parent.
{¶34} But first, we must point out the need to apply the changed
circumstances test was also made as an alternative holding. Although the father
proceeds as though this is a modification of parental rights subject to the stricter
changed circumstances test, the trial court expressed uncertainty as to whether this
proceeding would be considered a modification since there was no prior court order
specifically allocating parental rights and responsibilities to the mother. As the court
pointed out, the mother was the residential parent and legal custodian by operation of
a statute, which provides: “An unmarried female who gives birth to a child is the sole
residential parent and legal custodian of the child until a court of competent
jurisdiction issues an order designating another person as the residential parent and
legal custodian.” R.C. 3109.042(A) (also stating, “A court designating the residential
parent and legal custodian of a child described in this section shall treat the mother
and father as standing upon an equality when making the designation.”).
2 In a modification case, the court cannot change a prior decree allocating parental rights unless there are
changed circumstances, the modification in the child’s best interest, and the court finds: (i) the residential parent
agrees or both parents under a shared parenting decree agree; (ii) the child, with the consent of the residential
parent or both parents under a shared parenting decree, has been integrated into the family of the person seeking
to become residential parent; or (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. R.C. 3109.04(E)(1)(a). The court found none of these
options apply here. (3/24/17 J.E. at 7).
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{¶35} Where the mother is the residential parent under this statute and no
prior court order designates her as such, the father’s request for allocation of parental
rights is considered an initial request rather than a request for modification of a prior
decree. In re J.K., 7th Dist. No. 14 CA 899, 2014-Ohio-5502, ¶ 26. Although prior
entries provided the father visitation or companionship (now called parenting time),
the entries did not specifically designate the mother as the residential parent. This
court has previously concluded such a scenario (involving a prior court order granting
the father’s companionship request and a subsequent request by the father for
“reallocation of parental rights”) still qualifies as an initial allocation. See In re
S.S.L.S., 7th Dist. No. 12 CO 8, 2013-Ohio-3026, ¶ 6, 15-16.
{¶36} In any event, as aforementioned, the trial court specifically made an
alternative holding as to the children’s best interests. The court ruled shared
parenting was not in the children’s best interest and the children’s best interests
require the mother remain the residential parent. The father contests the trial court’s
weighing of the best interest factors in reaching this conclusion. Specifically, he
contends the court abused its discretion in finding the mother was “more likely to
honor and facilitate parenting time rights or visitation and companionship rights.” The
father urges shared parenting would promote continuity and bonding. He complains
the mother flatly rejected his proposed plan without articulating convincing reasons.
{¶37} “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 and
responsibilities, the court shall consider all relevant factors, including, but not limited
to” those listed in R.C. 3109.04(F)(1)(a)-(j). These factors must also be considered in
considering shared parenting under R.C. 3109.04(F)(2), along with additional factors
provided in division (F)(2). The court reviewed some of the testimony presented at
the hearing. The court then made findings with regard to the statutory factors it found
pertinent on the issue of the children’s best interests.
{¶38} The court set forth the wishes of the parents regarding the children’s
care. See 3109.04(F)(1)(a). The court disclosed the children’s wishes as to the
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allocation of parental rights and responsibilities, stating they both wished to continue
to live with their mother under the current arrangement and they both “want to
continue the current parenting and companionship arrangement.” See
3109.04(F)(1)(b). As to the children’s interaction and interrelationship with parents,
siblings, and any other person who may significantly affect the children’s best
interests, the court found: Child A “enjoys a good relationship with both of his
parents and their respective paramours and their extended families”; Child B “enjoys
a good relationship with his mother and her paramour. However, [he] refuses to visit
or be involved with his father”; and the children are “well bonded” and enjoy a good
relationship with each other. See 3109.04(F)(1)(c). On this topic, the court noted the
estranged relationship between the father and Child B weighs against the proposal
for the child to live with the father every other week and it would be inappropriate to
separate the children further (for instance, by granting shared parenting as to only
Child A). The court found both children were well adjusted to their home, school, and
community, noting the children’s involvement in their school district socially and
academically. See 3109.04(F)(1)(d). Mental and physical health was not “a
significant issue when it comes to the ability to parent these children.” See
3109.04(F)(1)(e).
{¶39} As criticized by the father, the court found the mother was the parent
more likely to honor and facilitate court-approved parenting time rights or visitation
and companionship rights. See 3109.04(F)(1)(f). Still, the court did not find a
continuous and willful denial of court-ordered parenting time by either parent,
characterizing many of the parenting time complaints as “petty squabbles.” See
3109.04(F)(1) (other relevant factors can be considered), (F)(1)(i) (continuous and
willful denial by the residential parent). Contrary to the father’s contention, these two
findings are not contradictory. In other words, the court was not required to state the
father continuously and willfully denied the mother time in order to believe the mother
was more likely to honor and facilitate court-approved parenting time.
{¶40} The court found the factor regarding failure to make required child
support payments was inapplicable. See 3109.04(F)(1)(g). The next factor, involving
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certain conviction or adjudications, was also found to be inapplicable. See
3109.04(F)(1)(h). The court did not find either parent has established a residence, or
is planning to establish a residence, outside this state. See 3109.04(F)(1)(j).
{¶41} As to the additional shared parenting best interest factors, the court
pointed out the parents have no ability to communicate, cooperate, or make
decisions jointly with respect to the children. See 3109.04(F)(2)(a). The court
“doubt[ed]” the father’s ability to encourage the sharing of love, affection, and contact
between the child and the mother. See 3109.04(F)(2)(b). The court found
inapplicable the factor regarding a history of abuse, domestic violence, or parental
kidnapping. See 3109.04(F)(2)(c). The geographic proximity of the parents was
considered impractical as it related to the proposed shared parenting plan due to the
distance of the father’s house to the school (45 minutes one way). See
3109.04(F)(2)(d). The court also pointed out the guardian ad litem did not
recommend shared parenting. See 3109.04(F)(2)(e).
{¶42} There is no indication the court abused its discretion in denying the
father’s motion for shared parenting. The decision is not arbitrary or unconscionable;
nor is it unsupportable by any sound reasoning process. See AAAA Ents., 50 Ohio
St.3d at 161. The credibility of the parties and other witnesses was a matter for the
trier of fact as there may have been “much evidence in the parties' demeanor and
attitude that does not translate to the record well.” See Davis, 77 Ohio St.3d at 418-
419 (fact-finder had opportunity to view the witnesses and observe their demeanor,
gestures and voice inflections and to use these observations in weighing credibility).
The father’s argument as to shared parenting is overruled.
{¶43} Finally, we reach what appears to be the father’s main overarching
argument. The father complains the court declined to implement a remedy to
address the Child B’s refusal to visit him and states the court’s inaction permits a
child to thwart a court order of parenting time. He asserts it was an abuse of
discretion to not formulate some type of relief, such as an assessment of the child,
counseling, reconciliation counseling with the father and the child, or supervised
visitation. He characterizes the court’s denial of his motion for shared parenting and
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his motion for contempt against the mother as maintaining the status quo (which
involves Child B refusing to visit him). The father concludes the failure to order some
relief effectively deprived him of his parenting time with Child B and could be viewed
as the termination of his parental right to visitation.
{¶44} The father’s brief then outlines the following law applicable when a
court considers whether to terminate a parent’s visitation: modification of visitation is
within the discretion of the trial court upon considering the best interest factors in
R.C. 3109.051(D); the nonresidential parent has a fundamental and natural right to
visitation; the child has a fundamental right to visit with the nonresidential parent; the
parent contesting visitation has the burden to show extraordinary circumstances by
clear and convincing evidence; and the burden then shifts to the other parent to show
visitation is still in the child’s best interest. See Dubec v. Pochiro, 7th Dist. No. 09-
MA-6, 2010-Ohio-1293, ¶ 21-26. In Dubec, this court found the trial court effectively
terminated visitation rights when it eliminated all visitation, even though the court
provided some telephone contact. Id. at ¶ 29. We remanded and held: “when a trial
court terminates a nonresidential parent's right of visitation the court must make a
finding in its judgment entry that there was clear and convincing evidence of
extraordinary circumstances justifying termination of those rights.” Id. at ¶ 31.
{¶45} The father concludes the court was required to utilize this law in
determining the motions before the court in this case. However, the mother did not
ask the court to terminate his parenting time, and the court did not terminate his
parenting time. In fact, the court denied the mother’s motion to decrease his
parenting time, wherein she asked to eliminate the mid-week visit (and keep the visit
every other weekend and the additional summer weeks). The father filed a motion
for shared parenting and a motion to hold the mother in contempt. Contrary to the
allegations in his brief, the denial of these motions was not a denial of parenting time.
{¶46} The court denied shared parenting based upon the children’s best
interests and the refusal to hold the mother in contempt for Child B’s failure to visit
was apparently based upon the belief she did not improperly influence the child to
refuse and she sufficiently encouraged him to visit. (The propriety of these decisions
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was addressed supra.) The denial of the father’s motions was not an attempt to
eliminate the father’s right to visit with Child B. Furthermore, in denying the parties
cross-motions for contempt, the court warned each party “to strictly comply with the
Court’s order of companionship as previously ordered.” The prior order of
companionship was every other weekend and every Wednesday for both children,
with the other accoutrements of the local standard order.
{¶47} As to the failure to implement a plan (such as an evaluation or
assessment and then counseling) to encourage Child B to visit the father, the
mother’s response brief contends the father cannot complain the court failed to enter
an order where he did not file a motion seeking the order he now demands. She
concludes the court fully addressed the motions filed and the father is seeking relief
regardless of whether his motions were properly denied. She states the father can
still seek counseling to facilitate his parenting time with Child B if he files a proper
motion and the court finds the particular request is in the child’s best interest.
{¶48} The father acknowledged his motion did not seek the type of remedy
which he now suggests was required in order for the court to avoid abusing its
discretion. His combined motion (for contempt and for shared parenting) did not seek
an evaluation or counseling and he did not file a motion to modify his parenting time
to occur at counseling (or under supervision as his brief also suggests). He
underscores what he calls a “generic” request at the end of his motion for relief in the
form of “[s]uch other and further Orders as are just.” He also suggests counseling
was mentioned at the final pretrial; however, the February 3, 2017 transcript of the
pretrial contains no mention of a supplemental request for an evaluation or
counseling.
{¶49} An assessment or evaluation is often used to ascertain the propriety,
function, and scope of any future counseling. The statute governing the allocation of
parental rights provides:
Prior to trial, the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability, and financial
worth of each parent and may order the parents and their minor
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children to submit to medical, psychological, and psychiatric
examinations. The report of the investigation and examinations shall be
made available to either parent or the parent's counsel of record not
less than five days before trial, upon written request. The report shall be
signed by the investigator, and the investigator shall be subject to
cross-examination by either parent concerning the contents of the
report. The court may tax as costs all or any part of the expenses for
each investigation.
R.C. 3109.04(C). This statutory language on ordering a psychological examination
“is advisory and not mandatory in nature.” Stone v. Stone, 9 Ohio App.3d 6, 11, 457
N.E.2d 919, 924 (12th Dist.1983). See also Weaver v. Weaver, 5th Dist. No.
2003CA00096, 2004-Ohio-4212, ¶ 55-56 (finding the trial court did not abuse its
discretion when it denied a party’s motion under this division in part because the
party waited until after the middle of the divorce hearing to file a request for
psychological evaluations and also noting the children were already in counseling).
{¶50} In all the time the case was pending prior to the hearing (and
throughout the continuances on the dates of the schedule hearings), no motion
requesting an assessment or reconciliation counseling was filed. We emphasize the
language “[p]rior to trial” in the above statute. The failure to order an evaluation prior
to trial does not appear unreasonable, in this case, where no request was made for
such an order. See, e.g., In re S.M.K., 2d Dist. No. 2008 CA 17, 2008-Ohio-6733,
¶ 15-21.
{¶51} As for the court’s obligation to order an assessment and/or counseling
after the hearing, the father emphasizes the portions of his testimony referring to
counseling. Notably, his first mention of counseling occurred while he was being
cross-examined. He was asked whether he agreed with the mother’s opinion on
Child B having unvoiced issues concerning his refusal to visit. The father answered:
“Yes I want counseling. I have already told my attorney I want counseling between
me and [Child B] so we can work these problems out because obviously there is
something going on.” He added, “Well we didn’t make a motion for that but I would
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definitely love to have that happen.” (Tr. 94). On redirect examination, his attorney
asked if he was willing to undergo counseling with the child, to which the father
replied, “Absolutely. If that is what it would take. * * * I want to work on our issues.”
(Tr. 115). No details on counseling were discussed. The mother believed the child
had unexpressed issues with the father; however, she was not asked about the topic
of counseling for the child. The father’s closing argument did not mention counseling.
{¶52} The trial court was not unreasonable in failing to order the mother to
deliver the child to counseling where the filed motions before the court were all
denied. The father did not file a written motion for counseling or for modified
visitation (with a request for an order for the mother to bring the child to counseling).
There was no evidence presented on the specifics of the counseling requested, and
no evaluation had been conducted before trial. Under the circumstances in this case,
we discern no abuse of discretion. Appellant’s assignment of error is overruled, and
the trial court’s judgment is affirmed
Donofrio, J., concurs.
Waite, J., concurs.