Fritsch v. Fritsch

[Cite as Fritsch v. Fritsch, 2014-Ohio-5357.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JESSICA LEA FRITSCH, n.k.a. : APPEAL NO. C-140163
WIETMARSCHEN, TRIAL NO. DR0802284
:
Plaintiff-Appellant, O P I N I O N.
:
vs.
:
CHRISTOPHER FRITSCH,
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 5, 2014
Rollman & Handorf, LLC, and Jacqueline M. Handorf-Rugani, for Plaintiff-
Appellant,
Suhre & Associates, LLC, and B. Bradley Berry, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.
{¶1} Plaintiff-appellant Jessica Lea Fritsch n.k.a. Wietmarschen
(“mother”) appeals from a decision of the Hamilton County Court of Common Pleas,
Domestic Relation Division, granting the motion filed by defendant-appellee
Christopher Fritsch (“father”) to modify the parties’ shared-parenting plan. We find
no merit in mother’s sole assignment of error, and we affirm the trial court’s
judgment.
{¶2} The parties’ marriage was terminated by a decree of dissolution on
December 12, 2008. The decree incorporated a shared-parenting plan for the
parties’ two children, Nathaniel and Zachery, born in 2003 and 2006. Under the
plan, the parties were both named as residential parents “without regard to where
the children are physically located” and shared relatively equal parenting time.
{¶3} On the issue of schooling, the plan stated that “[t]he residence of
Mother shall be considered the primary place of residence for the minor children for
school purposes as well as the mailing address for school records and documents
involving the minor children.” It also stated, “The parents agree that Mother’s
residence will be used for school registration purposes for the minor children. * * *
Both parents recognize that the children legally may attend either parent’s school
system.”
{¶4} At the time the plan was journalized, mother was a resident of
Reading, Ohio, and father lived in a nearby community. Subsequently, father moved
to Reading. The children attend Hilltop Elementary in the Reading Community
School District.
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{¶5} The shared-parenting plan also allowed either party to relocate
anywhere in Hamilton, Butler, Clermont or Warren counties. In April 2013, mother
filed a notice of intent to relocate to an address in Butler County in the Lakota Local
School District. In response, father filed a motion to modify the shared-parenting
plan to make him the residential parent for school purposes.
{¶6} Evidence presented at a hearing before a magistrate showed that
mother moved to Butler County in June 2013. During her parenting time, she and
the two children reside with her fiancé and his son.
{¶7} Before mother’s relocation, both parents and both sets of
grandparents lived in close proximity to each other in or near Reading. The boys had
always lived in Reading and attended school in Reading. They have done well in the
Reading Schools and are exceptional students. They have healthy friendships and
strong connections with other children in the community.
{¶8} Father testified that his residence was approximately one-half mile
from the boys’ school. He works as a police officer and fire fighter in a neighboring
community, and he can often stop by the school even when he is on duty. If the
children are sick or an emergency occurs, he is able to pick up the children in
minutes. Because of his close proximity to the school, he has been able to attend
many in-school events.
{¶9} Father has also been involved in the boys’ extracurricular activities.
He fears that if the boys are enrolled in the Lakota School District, he will not be able
to participate at the same level as he does now because it will take him 25 to 30
minutes to get there. Because the boys would attend separate schools with different
start times in the Lakota School District, father estimated that during his parenting
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time, he or his wife would have to spend a substantial amount of time transporting
the boys to and from school.
{¶10} In the Reading schools, the boys have the same start time and end
time. Several family members, who can pick them up and transport them to
extracurricular activities when they get out of school for the day or help them with
their homework, live within minutes of Hilltop. Also, on some days, the boys can
walk or ride their bicycles to school from father’s residence.
{¶11} Mother testified that although she lived in Reading when the shared-
parenting plan was signed, she had talked with father about her plans to move out of
that school district when the younger child started kindergarten. She stated that she
usually takes care of school business for the boys. She assists both of them with their
homework and signs their daily assignment books. She attends all conferences and
programs. Mother has also coached the boys’ sports teams and participated in their
extracurricular activities. She testified that she will remain active in whichever
school district the boys attend.
{¶12} Mother has a flexible work schedule that allows her to maximize her
time with the children. While father’s parents live in Reading, his siblings live in the
Lakota school district and his parents had assisted with the siblings’ children.
Though mother’s parents live in Reading, they will help out with the boys regardless
of where they attend school.
{¶13} Mother has investigated the schools in the Lakota school district, and
she believes that the boys will be better educated there. She testified that Lakota
schools offer better club teams, more foreign languages, more extracurricular
activities and better volunteer opportunities. Additionally, they offer full-time
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advanced-placement courses, including programs for gifted children, which the
Reading schools do not.
{¶14} The magistrate rejected mother’s argument. She found that it was in
the children’s best interest for them to remain in the Reading school district, and
granted father’s motion. Mother objected to the magistrate’s decision. The trial
court overruled all but one of her objections, and adopted the magistrate’s decision
with one modification. This appeal followed.
{¶15} In her sole assignment of error, mother contends that the trial court
erred in granting father’s motion to modify the shared-parenting plan. She argues
that to modify the shared-parenting plan, father had to prove that a change of
circumstances had occurred, and that the trial court erred in solely relying on the
best-interests-of-the-children test. This assignment of error is not well taken.
{¶16} When determining parental rights, the domestic relations court must
follow statutory guidelines. Miller v. Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d 846
(1988); King v. King, 3d Dist. Union No. 14-11-23, 2012-Ohio-1586, ¶ 8. The
determination of which statutory standard applies is a question of the law that this
court reviews de novo. Picciano v. Lowers, 4th Dist. Washington No. 08CA38,
2009-Ohio-3780, ¶ 19. We review the court’s decision allocating parental rights for
an abuse of discretion. Miller at 74; Cwik v. Cwik, 1st Dist. Hamilton No. C-090843,
2011-Ohio-463, ¶ 41.
{¶17} R.C. 3109.04(E) governs the modification of shared-parenting
decrees. Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546,
¶ 11. Mother relies upon R.C. 3109.04(E)(1)(a), which provides:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts
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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.
{¶18} In interpreting this section, the Ohio Supreme Court has stated that
“[a] modification of the designation of residential parent and legal custodian of a
child requires a determination that a ‘change in circumstances’ has occurred, as well
as a finding that the modification is in the best interest of the child.” Fisher at
syllabus. In so holding, it stated:
R.C. 3109.04(E)(1)(a) expressly provides for the modification of
parental rights and responsibilities in a decree. An allocation of
parental rights and responsibilities is a designation of the residential
parent and custodian. Therefore, R.C. 3109.04(E)(1)(a) controls when
a court modifies an order designating the residential parent and legal
custodian.
Id. at ¶ 26.
{¶19} The trial court held that R.C. 3109.04(E)(1)(a) does not apply in this
case. Instead, the court held that R.C. 3109.04(E)(2)(b) applies. It provides:
The court may modify the terms of the plan for shared parenting
approved by the court and incorporated into the shared parenting
decree upon its own motion at any time if the court determines that
the modifications are in the best interest of the children or upon the
request of one or both of the parents under the decree. Modifications
under this division may be made at any time. The court shall not make
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any modification to the plan under this division, unless the
modification is in the best interest of the children.
{¶20} The terms of a shared-parenting plan do not allocate ultimate legal
and physical control. Instead, the terms of a shared-parenting plan include
provisions relative to the care of a child that are more likely to require change over
time, such as the child’s living arrangements, medical care, and school placement.
Fisher, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 36; Picciano, 4th
Dist. Washington No. 08CA38, 2009-Ohio-3780, at ¶ 23. Thus, R.C.
3109.04(E)(2)(b) provides for a lower standard for modifying the terms of a shared-
parenting plan, because those terms are not as critical to the life of a child as the
designation of the child’s residential parent and legal custodian. Fisher at ¶ 36;
Picciano at ¶ 21.
{¶21} The Third Appellate District has held that R.C. 3109.04(E)(2)(b)
applies when the domestic relations court modifies the designation of a residential
parent for school purposes, but otherwise maintains both parents as residential
parents with the same parental rights and responsibilities. See King, 3d Dist. Union
No. 14-11-23, 2012-Ohio-1586, at ¶ 8; Ralston v. Ralston, 3d Dist. Marion No. 9-08-
30, 2009-Ohio-679, ¶ 17. We agree. Therefore, we hold that the trial court in this
case correctly applied the best-interest-of-the child test under R.C. 3109.04(E)(2)(b).
The court did not have to determine that a change of circumstances had occurred to
modify the designation of the residential parent for school purposes.
{¶22} Mother argues that the ultimate outcome of the court’s decision was a
change to the prior designation of the residential parent and legal custodian, thus
requiring a finding of a change of circumstances. She cites language in the
magistrate’s decision, which stated, “The Shared Parenting Plan shall be modified to
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include the following sentences: Father shall be named the residential parent and
legal custodian of the minor children for school purposes. Father’s residence shall be
used for school registration purposes at this time.”
{¶23} In her third objection to the magistrate’s report, mother argued that
that language was contradictory given the magistrate’s statement that R.C.
3109.04(E)(2)(b), and not R.C. 3109.04(E)(1)(a), applied. In ruling on that
objection, the trial court stated:
Due to the language used in the Magistrate’s Decision, Mother’s third
objection is well taken in part. However, the Court finds that it was the
Magistrate’s intention to modify a term of the Shared Parenting Plan,
not to change the designation of residential parent and legal custodian.
Upon an independent review, the Court finds that the modification of
the Shared Parenting Plan is in the best interest of the minor children.
Therefore, the “Decision” portion of the Magistrate’s Decision is
hereby vacated. This Court’s Decision is as follows, Father’s motion is
granted. The Shared Parenting Plan shall be modified as follows: The
residence of Father shall be considered the primary place of residence
for the minor children for school purposes as well as the mailing
address for school records and documents involving the minor
children.
The trial court’s decision was consistent with its duty to independently review the
magistrate’s findings of fact and conclusions of law, and with its authority to adopt,
reject, or modify the magistrate’s decision. See Civ.R. 53(D); Metz v. Metz, 1st Dist.
Hamilton No. C-050463, 2007-Ohio-549, ¶ 55.
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{¶24} Applying R.C. 3109.04(E)(2)(b), the trial court determined, based on
the evidence presented, that it was in the children’s best interest to remain in the
Reading school district. The trial court considered the factors listed in R.C.
3109.04(F)(1) in making that determination. See King, 3d Dist. Union No. 14-11-23,
2012-Ohio-1586, at ¶ 8; Picciano, 4th Dist. Washington No. 08CA38, 2009-Ohio-
3780, at ¶ 27. Under the circumstances, we cannot hold that the trial court’s decision
was so arbitrary, unreasonable or unconscionable as to connote an abuse of
discretion. See Blakemore v. Blakemore, 5 Ohio St. 3d 217, 218, 450 N.E.2d 1140
(1983); Coors v. Maceachen, 1st Dist. Hamilton No. C-100013, 2010-Ohio-4470, ¶
13. Consequently, we overrule mother’s sole assignment of error and affirm the trial
court’s judgment.
Judgment affirmed.
HILDEBRANDT, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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