Saylor v. Lewis

[Cite as Saylor v. Lewis, 2020-Ohio-3647.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DERON B. SAYLOR, : APPEAL NO. C-190463
TRIAL NO. DR-1502089
Plaintiff-Appellant, :
vs. :
O P I N I O N.
HOLLY SAYLOR, n.k.a. HOLLY :
LEWIS,
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 8, 2020
Deron B. Saylor, pro se,
Blake P. Somers, L.L.C., and Blake P. Somers, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} The case before us concerns post-decree proceedings in a divorce case.
The parties filed several motions with the trial court concerning issues regarding
contempt and parental rights and responsibilities, including custody, residency, and
parenting time. The parties resolved the motions through an agreed entry. Plaintiff-
appellant Deron Saylor then filed additional motions seeking to modify parental
rights and responsibilities. The trial court limited its consideration of his motions to
events that occurred after the parties signed the agreed entry. The court then denied
Saylor’s motions and ruled in favor of defendant-appellee Holly Lewis.
{¶2} Saylor has appealed, arguing in two assignments of error that the trial
court erred: (1) in finding that the agreed entry resolved all issues pending before the
court, and that the agreed entry was the point from which he was required to
demonstrate a change of circumstances; and (2) by failing to properly weigh the
evidence as required by Ohio law and local rule. We overrule Saylor’s assignments of
error and affirm the judgment of the trial court.
Factual Background
{¶3} Holly Lewis and Deron Saylor were divorced in May 2016. They have
three children, twin boys N.S. and G.S. (born July 2003) and daughter A.S. (born
April 2006).
{¶4} The boys’ use of the internet and social media for pornographic and
sexual purposes has been an issue throughout the case. For that reason, the boys
were assigned a guardian ad litem (“GAL”) who recommended that the boys’ access
to the internet and social media be restricted. The divorce decree included a shared-
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OHIO FIRST DISTRICT COURT OF APPEALS
parenting agreement, which put restrictions on the children’s usage of social media
and electronic devices. Saylor filed a motion for contempt when he suspected that
Lewis was allowing the boys to use social media and the internet for inappropriate
purposes. The parties entered an agreed entry on January 17, 2017, wherein Lewis
agreed to remove the children from all social media.
{¶5} On August 1, 2017, Saylor filed a motion for a change in parental rights
and responsibilities (custody). He alleged that Lewis had enabled the boys to
continue to use social media for sexual and pornographic purposes. On October 18,
2017, Saylor filed a motion for contempt alleging harassment by Lewis. Lewis had
filed a motion to terminate shared parenting on May 3, 2017, and a motion to
amend/clarify on March 1, 2018. The parties convened for trial on March 13, 2018,
to resolve the four pending motions. A partial trial was conducted, but was
continued in progress until the next day, at which time the parties came to an agreed
entry resolving all pending motions before the court. The court accepted the agreed
entry and concluded the trial.
{¶6} On December 21, 2018, Saylor filed two motions—a motion for
“contempt of parenting time, reimbursement of attorney fees, harassment,” and a
motion for a change of parental rights and responsibilities (custody). Saylor’s appeal
is based upon his motion for change of parental rights and responsibilities, in which
he argued that circumstances had changed since he “agreed with Mrs. Lewis to work
together to resolve all issues” on March 14, 2018. He claimed that Lewis had failed to
work with him and that she continued to allow the boys to access pornography and
engage inappropriately with strangers over social media. For those reasons, he asked
the court to grant him sole custody.
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{¶7} On February 14, 2019, and June 14, 2019, the court held hearings on
Saylor’s motions. Lewis argued that the issues raised by Saylor in his December 21,
2018 motions had already been decided by the agreed entry on March 14, 2018.
Saylor argued that he was never given the chance to present evidence of Lewis’s
failure to “stop” the boys’ behavior involving pornography and inappropriate social
media use, and so that issue remained unresolved. Also, he contended that the
agreed entry was temporary as to the allocation of parental rights and
responsibilities because it stated that “mother shall be designated the temporary
residential and custodial parent.”
{¶8} The court held that the March 14, 2018 agreed entry resolved all of the
issues that were pending at the time, and that it was permanent, despite the
inclusion of the word “temporary” in its allocation of custody and residency. The
court held that it would not hear evidence from before March 14, 2018, in its
consideration of Saylor’s December 21, 2018 motions. On July 18, 2019, the court
denied Saylor’s motions.
First Assignment of Error
{¶9} The thrust of Saylor’s first assignment of error is that he was denied
the ability to present his case. He argues that the trial court erred where it found
that the March 14, 2018 agreed entry resolved all issues pending before the court,
and that he must demonstrate a change of circumstances after March 14, 2018, in
order to achieve a modification to custody.
{¶10} Generally, custody decisions are reviewed for an abuse of discretion.
“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
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evidence before him * * * and such a decision must not be reversed absent an abuse
of discretion.” Kane v. Hardin, 1st Dist. Hamilton No. C-180525, 2019-Ohio-4362, ¶
6, quoting Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997).
{¶11} However, where the question is whether the trial court correctly
decided a question of law, such as its interpretation of the agreed entry, we review de
novo. See Shah v. Smith, 181 Ohio App. 3d 264, 2009-Ohio-743, 908 N.E.2d 983, ¶ 7
(1st Dist.); State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 6;
Mangan v. Mangan, 2d Dist. Greene No. 07–CA–100, 2008-Ohio-3622, ¶ 6. Thus,
we review the trial court’s decision to limit Saylor’s ability to present his evidence de
novo.
{¶12} R.C. 3109.04(E)(1) governs motions to modify a parenting decree,
including decrees regarding custody and residency. Modifying a parenting decree is
not permitted unless: (1) there has been a change in circumstances since the prior
decree, based on facts that have arisen since the prior decree or were unknown by the
court at the time of the prior decree; (2) the modification is necessary to serve the
best interest of the children; and (3) one of the conditions in R.C.
3109.04(E)(1)(a)(i)-(iii) is satisfied. R.C. 3109.04(E)(1)(a).
{¶13} The trial court determined that Saylor had failed to demonstrate a
change in circumstances since March 14, 2018, and denied his motion. Saylor argues
that the agreed entry was not intended to be a “prior decree,” from which he must
demonstrate a change in circumstances because, (1) the parties did not resolve any
issues in the agreed entry, rather they merely committed to working together to
resolve the issues, and (2) the provisions in the agreed entry were temporary.
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{¶14} First, we discuss whether the agreed entry resolved the issues that
were pending before the court. In Purvis v. Hazelbaker, 181 Ohio App. 3d 167, 2009-
Ohio-765, 908 N.E.2d 489, ¶ 13 (4th Dist.), the Fourth District interpreted an agreed
entry as it pertained to custody. “When examining a written instrument, the cardinal
purpose is to ascertain and give effect to the intent of the parties.” Id., citing Foster
Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio
St.3d 353, 361, 678 N.E.2d 519, (1997). “The intent of the parties to a contract is
presumed to reside in the language they chose to employ in the agreement.” Purvis
at ¶ 13, quoting Foster at 361.
{¶15} In this case, the agreed entry listed the four motions pending at that
time, and stated that the parties “wish to resolve all pending motions under the
following terms.” Regarding custody and residency specifically, the agreed entry
stated, “The Shared Parenting Plan and Decree between the parties shall be
terminated, and Mother shall be designated the temporary residential and custodial
parent of [the children] until further order of the court or the agreement of the
parties.”
{¶16} The language employed by the parties demonstrates that the agreed
entry was intended to resolve all matters before the court, including the cell phone,
social media, and inappropriate-sexual-behavior issues raised by Saylor in his
motion to change parental rights and responsibilities. The agreed entry was more
than just an expression by the parties to work together to resolve the issues of
custody and residency, it actually resolved those issues.
{¶17} Next, we address Saylor’s argument that the agreed entry was meant to
be temporary. Lewis argues that her designation as the “temporary” custodial and
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OHIO FIRST DISTRICT COURT OF APPEALS
residential parent does not affect the permanence of the agreed entry itself. This was
the same rationale followed by the trial court.
{¶18} Temporary orders allocating parental rights and responsibilities are
common predivorce decree. They are governed by their own code section. See R.C.
3109.043 (giving the trial court the authority to make temporary orders regarding
the allocation of parental rights and responsibilities when requested in the
complaint, answer, or counterclaim, or by motion served with the pleading). Also,
the Ohio Rules of Civil Procedure contemplate these types of pretrial orders, and
designate them as interlocutory. See State ex rel. Thompson v. Spon, 83 Ohio St. 3d
551, 554-555, 700 N.E.2d 1281 (1998); Civ.R. 75(N) (formerly 75(M)).
{¶19} We found few cases involving a temporary allocation of parental rights
and responsibilities post-divorce decree. In the cases that addressed the issue, it was
clear that the court intended the order to be temporary. See Pierson v. Gorrell, 12th
Dist. Butler No. CA2011–11–216, 2012-Ohio-3878, ¶ 3 (mother was moving out of
state and a determination of custody was required immediately; the court scheduled
the matter for a future hearing where it determined that a change in circumstances
had occurred warranting a change in custody under R.C. 3109.04); Williams v.
Williams, 11th Dist. Trumbull No. 2002-T-0101, 2004-Ohio-3992, ¶ 16 (in holding
that the trial court’s grant of temporary custody was not final and appealable, the
Eleventh District relied upon the interim nature of the order—“Where the
permanency of a child’s relocation is premised upon a future review hearing [because
mother was moving out of state], it stands to reason that said order is temporary”).
{¶20} The agreed entry in this case was not clearly temporary like the orders
in Pierson and Williams. We are not faced with the issue of a parent moving out of
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the jurisdiction, and so the permanency of the children’s residency was not premised
upon a future review hearing. Furthermore, in Williams and Pierson, the temporary
custody orders did not actually resolve the fathers’ pending motions for custody. In
both cases, the custody awards were interim in nature, and the court held hearings a
few months later to resolve the custody motions. The agreed entry in this case
explicitly sought to resolve all pending motions, including Saylor’s custody motion,
and it unequivocally terminated the shared-parenting plan. Also, the court did not
schedule a future review hearing.
{¶21} As the court explained to Saylor during the June 14, 2019 hearing, the
allocation of custody and residency was described as temporary because the agreed
entry laid out a reunification plan for Saylor, and once Saylor completed the plan, he
could petition the court to amend the agreed entry. Saylor had a chance to present
evidence of Lewis’s failure to monitor the boys’ social media and internet usage.
Instead, he signed an agreed entry resolving the issues. Saylor’s first assignment of
error is overruled.
Second Assignment of Error
{¶22} In his second assignment of error, Saylor argues that the trial court
abused its discretion by failing to properly weigh all of the evidence. Many of
Saylor’s arguments under his second assignment of error relate back to the trial
court’s determination that it would not consider evidence from before March 14,
2018.
{¶23} First, Saylor argues that by limiting its review to evidence of events
after March 14, 2018, the court violated R.C. 3109.04(F)(1)(h), which required the
court to determine whether Lewis had acted in a manner resulting in the children
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being abused or neglected. As discussed above, the trial court did not err in limiting
Saylor to presenting only evidence of events that occurred after March 14, 2018.
Without evidence of any abusive or neglectful conduct on the part of Lewis, the trial
court did not violate R.C. 3109.04(F)(1)(h).
{¶24} Next, Saylor argues that, pursuant to Evid.R. 405(B), he should have
been permitted to provide “specific incidents of conduct” regarding Lewis’s behavior.
Evid.R. 405(B) states that “in cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense, proof may also be made
of specific instances of his conduct.” There are no charges, claims, or defenses in this
case in which character or a trait of character is an essential element of proof.
Saylor’s Evid.R. 405(B) argument is meritless.
{¶25} Next, Saylor argues that the trial court failed to properly consider
Lewis’s actions after signing the agreed entry on March 14, 2018. He contends that
her actions demonstrated her unwillingness to cooperate and make decisions jointly,
and to encourage love and affection between him and the children as required by
R.C. 3109.04(F)(2)(b). He argues that he should have been permitted to introduce
evidence of Lewis’s attempts to undermine his relationship with them. Saylor argues
that after signing the agreed entry, Lewis continued to allow the boys to access social
media, that she ignored his emails and refused to cooperate with him, and that she
withheld A.S. from visiting him for four months.
{¶26} The trial court agreed that Lewis had withheld A.S. from visiting
Saylor, but held that Lewis had good reason for doing so. On Easter weekend 2018,
there was an incident between Saylor and A.S. in which he told A.S. to “go home,”
instead of spending the weekend with him. A.S. returned to Lewis’s home and
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committed self harm immediately thereafter. The court described Saylor’s
relationship with A.S. as a “key trigger” of her self-harming behavior. Saylor also
refused to communicate with Lewis regarding the incident. Thus, the court held that
Lewis’s decision to keep A.S. away from Saylor was justified.
{¶27} The trial court considered the parties’ lack of cooperation, and found
that it was Saylor, not Lewis, who had failed to cooperate and “who has no interest in
accepting responsibility for his role in his children’s behavior or in working with
[Lewis] to raise their children.” The court explained that it was “gravely troubled by
[Saylor’s] lack of self-reflection, and the evidence as well as his demeanor at trial lead
the Court to conclude that [Saylor], not [Lewis] is uncooperative and disruptive to
his children’s healthy development.” In support, the court cited to Saylor’s refusal to
read the GAL reports, to read Lewis’s messages, and to cooperate with A.S.’s
counselor, and his attempts to undermine A.S.’s relationship with Lewis, as
evidenced by the card he sent A.S. after the Easter weekend incident in which he
wrote, “It is so sad that your mom’s bitterness and hate is [sic] used to keep you from
seeing your father.” The trial court did not abuse its discretion in finding that it was
Saylor, and not Lewis, who was being uncooperative and undermining.
{¶28} Finally, as part of his second assignment of error, Saylor argues that
the trial court violated Hamilton County Court of Common Pleas Domestic Relations
Division Local Rule 1.13(B) (“Loc.R. 1.13(B)”) where it accepted the agreed entry even
though Saylor was not represented by counsel. However, in this assignment of error,
Saylor challenges the trial court’s weighing of the evidence, and his Loc.R. 1.13(B)
argument does not pertain to the trial court’s weighing of the evidence.
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{¶29} This court is limited to determining the merits of any appeal “on the
assignments of error set forth in the briefs * * * to receive consideration on appeal,
trial court errors must be raised by assignment of error and must be argued and
supported by legal authority and citation to the record.” (Citation omitted.) State v.
Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 43 (1st Dist.). “Appellate courts review
assignments of error—we sustain or overrule only assignments of error and not mere
arguments.” State v. Harlow, 4th Dist. Washington No. 13CA29, 2014-Ohio-864, ¶
10. Without an assignment of error regarding Loc.R. 1.13(B), Saylor has not properly
invoked our power of review by “identifying and framing with particularity the
issues” he seeks to have reviewed. See Newell v. Shumate, 9th Dist. Lorain No.
10CA009837, 2011-Ohio-2448, ¶ 5. Therefore, we do not reach the merits of Saylor’s
Loc.R. 1.13(B) argument.
{¶30} Saylor’s second assignment of error is overruled.
Conclusion
{¶31} Saylor’s assignments of error are overruled, and the judgment of the
trial court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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