Myers v. Wade

[Cite as Myers v. Wade, 2017-Ohio-8833.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Walter Myers, :
Plaintiff-Appellant, :
No. 16AP-667
v. : (C.P.C. No. 13JU-4556)
LaTonia Wade, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 5, 2017
On brief: Cynthia Roy, for appellant. Argued: Cynthia Roy.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Walter Myers, appeals from a final judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
that overruled his objections to a decision and entry adopting a magistrate's decision
granting the motion for modification of parental rights and responsibilities of defendant-
appellee, LaTonia Wade. For the following reasons, we affirm the judgment of the trial
court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Myers and Wade are the parents of three minor children. The parties were
never married but lived together periodically for 13 years. In 2013, the parties filed a shared
parenting plan, which named mother as residential parent for school placement purposes,
and father had parenting time every other weekend from 9:00 a.m. Saturday to 8:00 p.m.
Sunday, and every Wednesday from 5:00 p.m. until 8:30 p.m. (Dec. 13, 2013 Plan for
Shared Parenting.)
No. 16AP-667 2
{¶ 3} On June 18, 2014, Wade filed a relocation notice that she was moving to
Arizona. On June 23, 2014, Myers filed a motion for reallocation of parental rights and
responsibilities, which he later withdrew on April 10, 2015. On September 2, 2014, Wade
filed a motion for reallocation of parental rights and responsibilities. On March 24, 2015,
Myers filed a motion to modify visitation.
{¶ 4} The basis for both motions to modify was Wade's relocation to Arizona for
health reasons in April 2015. She received a diagnosis of lupus in 2012 and she testified
that the Arizona climate is better for her health. The parties filed a temporary agreed entry
designating Myers as school placement parent and terminating his child support obligation
until further order of the court. From April 2015 until the final order of the court in August
2016, the children lived with Myers in Ohio and Wade lived in Arizona.
{¶ 5} The matter proceeded to trial on August 12 and 13, 2015. The magistrate filed
a decision on September 16, 2015. The magistrate's decision ordered continued shared
parenting, with Wade remaining as residential parent for school placement purposes and
modified parenting time for Myers based on Wade's move to Arizona.
{¶ 6} Myers filed a request for findings of fact and conclusions of law on September
21, 2015, along with objections to the magistrate's decision. On June 8, 2016, the
magistrate filed a decision that included findings of fact. The trial court provided Myers an
opportunity to supplement his objections. Myers did so on July 25, 2016. On August 22,
2016, the trial court overruled Myers's objections and found it to be in the children's best
interest to maintain the current plan for shared parenting with Wade as residential parent
for school placement purposes. Myers filed a timely notice of appeal.
II. ASSIGNMENTS OF ERROR
{¶ 7} Myers argues two assignments of error for our review:
[1.] The trial court erred and abused its discretion in
designating appellee school placement parent after her
relocation to Arizona and said designation is against the
manifest weight of the evidence.
[2.] The trial court's decision to name appellee school
placement parent after relocation is contrary to law and not in
the best interest of the minor children.
No. 16AP-667 3
III. DISCUSSION
A. Second Assignment of Error
{¶ 8} For clarity and ease of discussion, we address Myers's second assignment of
error first. In his second assignment of error, Myers argues that the trial court's decision is
contrary to law and not in the best interest of the minor children for naming Wade school
placement parent. More specifically, Myers argues that the trial court failed to apply R.C.
3109.04(E)(1)(a) properly because any likely harm caused by a change in circumstances of
the move to Arizona is not outweighed by the advantages of the change. The trial court
stated that the magistrate was not required to consider R.C. 3109.04(E)(1)(a)(iii) in this
case based upon Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589. The question
of whether a trial court correctly interpreted and applied a statute is a question of law, and
we review it de novo. State v. Willig, 10th Dist. No. 09AP-925, 2010-Ohio-2560, ¶ 14.
{¶ 9} R.C. 3109.04(E) governs post-decree modification of parental rights and
responsibilities. Under R.C. 3109.04(E)(1)(a), the trial court shall not modify a prior decree
allocating parental rights and responsibilities for the care of children unless it finds:
[B]ased on facts that have arisen since the prior decree or that
were unknown to the court at the time of the prior decree, that
a change has occurred in the circumstances of the child, the
child's residential parent, or either of the parents subject to a
shared parenting decree, and that the modification is necessary
to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting
decree, unless a modification is in the best interest of the child
* * *.
(Emphasis added.) R.C. 3109.04(E)(1)(a). See also In re James, 113 Ohio St. 3d 420, 2007-
Ohio-2335, paragraph one of the syllabus.
{¶ 10} In addition to determining whether modification of a prior decree allocating
parental rights is in the best interest of the child, one of the following must apply: (1) both
parents under a shared parenting plan agree to a modification, (2) with consent of the
parents, the child has become integrated into the family of the person seeking to become
the residential parent, or (3) the harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child. And the court on
its own motion and at any time "may modify the terms of the plan for shared parenting
No. 16AP-667 4
approved by the court and incorporated by it into the shared parenting decree" 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." R.C. 3109.04(E)(2)(b). But under
this section the court "shall not make any modification to the plan under this division,
unless the modification is in the best interest of the children." Id. The legislature, through
R.C. 3109.04, concerning the allocation of parental rights and responsibilities for the care
of children, or "shared parenting," seems to instruct that once allocation is established,
whether by decree (declaring that shared parenting shall occur) or according to a plan
(implementing the decree or order), changing it is presumed to be ill-advised unless it can
be established foremost that the change will be in the best interest of the children.
{¶ 11} In Fisher, the Supreme Court of Ohio considered the meaning of "parental
rights and responsibilities" as used in R.C. 3109.04. The Supreme Court determined that
"parental rights and responsibilities reside in the party or parties who have the right to the
ultimate legal and physical control of a child." Fisher at ¶ 22. When a trial "court designates
a residential parent and legal custodian, the court is allocating parental rights and
responsibilities" and must follow R.C. 3109.04(E)(1)(a). Fisher at ¶ 23.
{¶ 12} The Fisher court further explained the distinctions between modifying a
shared parenting "plan" and a shared parenting "order" noting that the "designation of
residential parent and legal custodian can be modified under R.C. 3109.04(E)(1)(a)," but
modifying terms of a shared parenting plan is pursuant to R.C. 3109.04(E)(2)(b). Fisher at
¶ 27. A "plan" provides for the implementation of the court's shared parenting order and
includes
"provisions covering all factors that are relevant to the care of
the children, including, but not limited to, provisions covering
factors such as physical living arrangements, child support
obligations, provision for the children's medical and dental
care, school placement, and the parent with which the children
will be physically located during legal holidays, school holidays,
and other days of special importance."
Fisher at ¶ 28, quoting R.C. 3109.04(G). Under Fisher, the designation of school placement
parent is a term of and determined by a shared parenting "plan" and pursuant to R.C.
3109.04(E)(2). Thus it does not require a finding that the harm likely to be caused by a
change of environment is outweighed by the advantages of the change of environment to
No. 16AP-667 5
the children which would be a factor for consideration required pursuant to R.C.
3109.04(E)(1)(a) were a party to seek modification of a decree or order.
{¶ 13} Also, this Court considered the application of R.C. 3109.04(E)(1)(a) to the
modification of the amount of parenting time between the parents to a shared parenting
plan in Ramsey v. Ramsey, 10th Dist. No. 13AP-840, 2014-Ohio-1921. In Ramsey, we
determined that the modification to the amount of parenting time divided between the
parents was a modification to the terms of a shared parenting plan and required the trial
court to do so pursuant to R.C. 3109.04(E)(2), not 3109.04(E)(1)(a). Based on the authority
of Fisher and Ramsey, the trial court did not err in finding that the magistrate was not
required to consider R.C. 3109.04(E)(1)(a)(iii) and the trial court did not err in refusing to
do so. See Fisher; Ramsey. Accordingly, we overrule Myers's second assignment of error.
B. First Assignment of Error
{¶ 14} In his first assignment of error, Myers argues that the trial court's decision
resulted from an abuse of discretion and was against the manifest weight of the evidence
when it continued to designate Wade as school placement parent after her relocation to
Arizona. Myers's basis for argument is that the trial court's decision is not in the best
interest of the minor children.
{¶ 15} A trial court must follow R.C. 3109.04 when deciding child custody matters
but it has broad discretion when determining what is the appropriate allocation of parental
rights and responsibilities. Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110, ¶
23. An appellate court must accord a trial court's determinations regarding parental rights
and responsibilities the " 'utmost respect, given the nature of the proceeding and the impact
the court's determination will have on the lives of the parties concerned. The knowledge a
trial court gains through observing the witnesses and the parties in a custody proceeding
cannot be conveyed to a reviewing court by a printed record.' " Pater v. Pater, 63 Ohio
St.3d 393, 396 (1992), quoting Miller v. Miller, 37 Ohio St. 3d 71, 74 (1988). Therefore, an
appellate court will only reverse a trial court's custody determination if the trial court
abused its discretion. Miller at 74; Parker at ¶ 23. "The term 'abuse of discretion' connotes
more than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 16} When determining the best interest of the child, a trial court must consider
multiple factors, including factors enumerated in R.C. 3109.04(F):
No. 16AP-667 6
(a) The wishes of the child's parents regarding the child's care;
(b) 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;
(c) 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;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in
the situation;
(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and
companionship rights;
(g) 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;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful
act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously has
been convicted of or pleaded guilty to a violation of section
2919.25 of the Revised Code or a sexually oriented offense
involving a victim who at the time of the commission of the
offense was a member of the family or household that is the
subject of the current proceeding; whether either parent or any
member of the household of either parent previously has been
convicted of or pleaded guilty to any offense involving a victim
who at the time of the commission of the offense was a member
of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to
No. 16AP-667 7
believe that either parent has acted in a manner resulting in a
child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents
subject to a shared parenting decree has continuously and
willfully denied the other parent's right to parenting time in
accordance with an order of the court;
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
R.C. 3109.04(F)(a) through (j).
{¶ 17} The magistrate examined the factors set forth in R.C. 3109.04(F). In his
supplemental objections, Myers argued that the magistrate's findings of fact were not based
on facts in evidence. The trial court compared the factual issues Myers raised to the
evidence in the transcript. It determined that the magistrate's conclusions of fact that
Myers alleged to be inapposite to the evidence were subject to interpretation by the trier of
fact. The trial court found that the magistrate's findings of fact were not so divergent from
the transcript as to make the magistrate's findings of fact invalid. The trial court
determined that the magistrate properly applied the best interest factors in R.C.
3109.04(F)(1), (F)(2), and (F)(3) to his factual findings and that his decision was not against
the manifest weight of the evidence. The decision of a domestic relations court's parental
rights allocation findings is subject to review for abuse of discretion, which we have already
discussed. Here, Myers argues in addition that the trial court's decision on reallocation was
against the manifest weight of the evidence, or not supported by some competent, credible
evidence going to all the essential elements of the case. " '[J]udgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence.' C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578, syllabus."
Butland v. Butland, 10th Dist. No. 95APF09-1151, 1996 Ohio App. LEXIS 2773, *21 (June
27, 1996).
{¶ 18} Myers argues that the best interest factors in R.C. 3109.04(F) favor him as
the school placement parent. Both parents requested the designation as school placement
parent, almost all of the parties' families live in central Ohio and the children had adjusted
to Myers's house at the time of trial. Wade's physical health is the impetus of her move to
No. 16AP-667 8
Arizona. The parties disagreed as to the parenting time and exchanges of the children with
Myers testifying Wade interfered with his parenting time and Wade testifying that Myers
was often late and forfeited his parenting time.
{¶ 19} Myers argues that Wade cannot provide for the children in Arizona. Her
family is here is central Ohio. She is unable to work due to her health issues. She receives
long-term disability of $1,480 per month, but the rent on her apartment is $935.13 per
month. (Tr. Vol. I at 89, 93.) The children had not visited her in Arizona but the guardian
ad litem testified that all three children consistently expressed a desire to move to Arizona
and live with Wade there. (Tr. Vol. II at 317.)
{¶ 20} The trial court reviewed the parties' plans for shared parenting, the
transcript, the evidence and the pleadings, and it arrived at the same conclusion as the
magistrate, finding it to be in the minor children's best interest to maintain the current plan
for shared parenting with Wade as residential parent for school placement purposes.
{¶ 21} Wade has been the primary caretaker of the children for their entire lives.
Wade reported a significant improvement in her health in Arizona. Wade found a church
affiliated with the family's current church and investigated the schools. The magistrate
believed Wade's testimony that Myers has not been cooperative in maintaining contact with
her and did not timely respond to her requests to Skype. The magistrate also found that
Myers's lack of cooperation regarding parenting time has made shared parenting a difficult
and stressful venture. Therefore, the magistrate found Wade was more likely to honor the
court-ordered terms of parenting time than Myers.
{¶ 22} Myers also argues that the guardian ad litem failed to perform her duties in
accordance with the Rules of Superintendence for the Courts of Ohio, specifically, Sup.R.
48(D)(13).1 Alleged violations of the Rules of Superintendence are not a basis for reversal.
1 Ohio Rules of Superintendence of the Courts of Ohio, Rule 48(D)(13) requires:
A guardian ad litem shall make reasonable efforts to become informed
about the facts of the case and to contact all parties. In order to provide
the court with relevant information and an informed recommendation
as to the child's best interest, a guardian ad litem shall, at a minimum,
do the following, unless impracticable or inadvisable because of the age
of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each
parent, foster parent, guardian or physical custodian and conduct at least
one interview with the child where none of these individuals is present;
No. 16AP-667 9
The "Rules of Superintendence are designed (1) to expedite the
disposition of both criminal and civil cases in the trial courts of
this state, while at the same time safeguarding the inalienable
rights of litigants to the just processing of their causes; and (2)
to serve that public interest which mandates the prompt
disposition of all cases before the courts." State v. Singer
(1977), 50 Ohio St. 2d 103, 109-110, 362 N.E.2d 1216. "They are
not the equivalent of rules of procedure and have no force
equivalent to a statute. They are purely internal housekeeping
rules which are of concern to the judges of the several courts
but create no rights in individual defendants." State v. Gettys
(1976), 49 Ohio App. 2d 241, 243, 360 N.E.2d 735. Accord State
v. Navedo, 11th Dist. No. 2007-L-094, 2008-Ohio-2324, at ¶
18, citing State v. Kowalski, 11th Dist. No. 93-P-0057, 1995
Ohio App. LEXIS 1089, at *16-*17.
Allen v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, ¶ 31.
{¶ 23} The trial court as the factfinder may choose to believe or disbelieve any
witness, and "the court is free to accept or reject, in whole or in part, the testimony or
opinions of any witness, whether accepted as an expert or not and determine the weight
(b) Visit the child at his or her residence in accordance with any standards
established by the court in which the guardian ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other
significant individuals who may have relevant knowledge regarding the
issues of the case;
(e) Review pleadings and other relevant court documents in the case in
which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records
pertaining to the child and, if appropriate, to the child's family or to other
parties in the case;
(g) Interview school personnel, medical and mental health providers, child
protective services workers and relevant court personnel and obtain copies
of relevant records;
(h) Recommend that the court order psychological evaluations, mental
health and/or substance abuse assessments, or other evaluations or tests
of the parties as the guardian ad litem deems necessary or helpful to the
court; and
(i) Perform any other investigation necessary to make an informed
recommendation regarding the best interest of the child.
No. 16AP-667 10
and credibility to be given thereto." Jackson v. Jackson, 5th Dist. No. 03-CA-17, 2004-
Ohio-816, ¶ 21, citing State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the
syllabus ("[T]he weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of facts.").
{¶ 24} Most of Myers's argument centers around his disagreement with the trial
court's determination on parental rights allocation supported by the trial court's believing
both Wade's and the guardian ad litem's testimony. The trial court reviewed the evidence,
the pleadings, and the best interest factors and determined that it is in the minor children's
best interest that Wade remain designated the residential parent for school placement
purposes under the parties' shared parenting plan. We find no abuse of discretion in that
determination. Nor can we find that the trial court's determination is against the manifest
weight of the evidence.
{¶ 25} Accordingly, Myers's first and second assignments of error are overruled and
the judgment of the trial court is affirmed.
IV. CONCLUSION
{¶ 26} For the foregoing reasons, Myers's two assignments of error are overruled
and we affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch.
Judgment affirmed.
KLATT and HORTON, JJ., concur.