Wright v. Wright

[Cite as Wright v. Wright, 2012-Ohio-1560.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LEESA WRIGHT (AKA LLOYD WRIGHT) JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
STEVEN WRIGHT Case No. 2011CA00129
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Family Court Division, Case
No. 2004DR01383
JUDGMENT: Reversed & Remanded
DATE OF JUDGMENT: April 2, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
PAMELLA A. LAMMON JENNIFER LOWRY
103 North Union Street 116 Cleveland Avenue, NW
Suite D Suite 800
Delaware, OH 43015 Canton, OH 44702
Guardian ad Litem
DWAINE R. HEMPHILL
P.O. Box 35697
Canton, OH 44735
Stark County, Case No. 2011CA00129 2
Farmer, J.
{¶1} On June 22, 2005, appellant, Leesa Wright, aka Leesa Lloyd Wright, and
appellee, Steven Wright, were granted a divorce. The final decree incorporated the
parties' separation agreement wherein the parties' agreed to a shared parenting plan
regarding their child, Esaias, born as issue of the marriage on July 31, 2002. The
parties also have another child, Kaleena, born December 21, 1991 and adopted by
appellee during the marriage. Appellant was designated the residential parent and legal
custodian.
{¶2} On January 8, 2009, the parties entered into another shared parenting
agreement wherein appellee was designated the residential parent for school placement
purposes and medical decisions.
{¶3} In September of 2009, each party filed a motion for the reallocation of
parental rights and responsibilities. Hearings before a magistrate were held on
February 16, March 31, and May 3 and 4, 2010. By decision filed August 3, 2010, the
magistrate terminated the shared parenting plan, designated appellee as the residential
parent and legal custodian, and ordered appellant to pay child support in the amount of
$50.00 per month. Appellant filed objections. A hearing was held on March 30, 2011.
By judgment entry filed April 18, 2011, the trial court ordered a limited remand to
address the issues of child support, health care, and the allocation of the dependency
exemption. A hearing was held on April 28, 2011. On May 5, 2011, the magistrate
issued a decision on these issues. By judgment entry filed May 9, 2011, the trial court
overruled appellant's objections and approved and adopted the magistrate's decision.
Stark County, Case No. 2011CA00129 3
The trial court did not file findings of fact and conclusions of law and issued a final order
on May 16, 2011.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED
THE DESIGNATION OF RESIDENTIAL PARENT AND LEGAL CUSTODIAN
WITHOUT MAKING A DETERMINATION THAT A 'CHANGE OF CIRCUMSTANCES'
HAS OCCURRED, AS WELL AS FINDING THAT THE MODIFICATION IS IN THE
BEST INTEREST OF THE CHILD, PURSUANT TO R.C. 3109.04(E)(1)(a). THE TRIAL
COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT."
II
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
PROCEEDED WITHOUT THE GUARDIAN AD LITEM'S ATTENDANCE FOR THE
ENTIRE TRIAL OR THE HEARING ON OBJECTIONS RELEASED HIM WITHOUT
ALLOWING COUNSEL TO FINISH EXAMINING HIM. THE TRIAL COURT'S
DECISION IS NOT REFLECTED IN THE TRANSCRIPT."
III
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THE CHILD WAS NOT COMPETENT, BUT DID NOT HOLD A
HEARING ON THIS ISSUE. THE TRIAL COURT'S DECISION IS NOT REFLECTED
IN THE TRANSCRIPT."
Stark County, Case No. 2011CA00129 4
IV
{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RENDERED
A CHILD SUPPORT ORDER WITHOUT GATHERING THE NECESSARY FINANCIAL
INFORMATION FROM THE PARTIES OR USING THIS DATA FROM THE FINANCIAL
AFFIDAVITS SUBMITTED BY BOTH PARTIES OR FROM TESTIMONY TAKEN
DURING THE TRIAL IN THE MATTER. THE TRIAL COURT ALSO OMITTED
FINDINGS OF FACT AND CONCLUSIONS OF LAW TO SUPPORT A DEVIATION.
THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT."
V
{¶9} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REPEATEDLY ALLOWED PREJUDICIAL HEARSAY TO COME IN AND BE
CONSIDERED, OVER THE OBJECTION OF THE PLAINTIFF/APPELLANTS
COUNSEL. SOME OF THIS HEARSAY, SPECIFICALLY, THE PSYCHOLOGICAL
REPORT OF 2006, WAS OVER FOUR YEARS OLD, IN THE GUARDIAN AD LITEM'S
REPORTS AND WAS AGAIN HEARD IN TESTIMONY OF MULTIPLE WITNESSES
AND THROUGH WRITTEN EVIDENCE AND WAS USED AS A BASIS FOR THE
COURT'S BEST INTEREST ANALYSIS. THIS REPORT WAS NEVER ADMITTED
INTO EVIDENCE, IS HIGHLY PREJUDICIAL, EFFECTS (SIC) A SUBSTANTIAL
RIGHT AND VIOLATES PLAINTIFF/APPELLANT'S CONSTITUTIONAL RIGHT TO
CONFRONTATION IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION. THE TRIAL COURT'S DECISION IS NOT REFLECTED IN
THE TRANSCRIPT, IS PREJUDICIAL AND AFFECTS A SUBSTANTIAL RIGHT."
Stark County, Case No. 2011CA00129 5
IV
{¶10} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PUT A TIME
LIMIT ON THE TRIAL AND THE HEARING ON OBJECTIONS, DID NOT TAKE ANY
EVIDENCE AT THE EVIDENTIARY HEARING ON OBJECTIONS, THAT WERE
OVERRULED. THIS WAS PREJUDICIAL AND AFFECTED A SUBSTANTIAL RIGHT
OF PLAINTIFF/APPELLANT. THE TRIAL COURT'S DECISION IS NOT REFLECTED
IN THE TRANSCRIPT."
VIII
{¶11} "THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE WHEN IT TERMINATED THE PARTIES SHARED
PARENTING PLAN AND DESIGNATED THE DEFENDANT/APPELLEE THE
RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE PARTIES MINOR CHILD.
THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT NOR
WAS THERE A FINDING OR DETERMINATION THAT A SUBSTANTIAL CHANGE OF
CIRCUMSTANCES HAD OCCURRED."
I
{¶12} Appellant claims the trial court erred in terminating the shared parenting
plan and designating appellee as the residential parent and legal custodian without
making a determination that a change of circumstances had occurred or that the change
was in the best interests of the child under R.C. 3109.04(E)(1)(a).
{¶13} Appellee claims this argument was not raised in the objections to the
magistrate's decision and is therefore barred pursuant to Civ.R. 53(E)(3)(B)(iv) which
states, "[a] party shall not assign as error on appeal the court's adoption of any factual
Stark County, Case No. 2011CA00129 6
finding of fact or legal conclusion***unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b)."
{¶14} On August 11, 2010, appellant filed objections to the magistrate's decision
and specifically objected to the following at No. 2:
{¶15} "Page three, second full paragraph, wherein the Magistrate decided that
one factor of §3109.04(F) (2) would be determinative of whether or not a court should
terminate a Shared Parenting Plan because it misstates the law."
{¶16} The magistrate's second full paragraph on page three of the decision filed
August 3, 2010, states the following:
{¶17} "In determining whether shared parenting is in a child's best interest, all
relevant factors must be considered including but not limited to the factors in R.C.
3109.04(F)(1), the factors enumerated in R.C. 3119.23, and the five factors in R.C.
3109.04(F)(2). The five factors of R.C.3109.04(F)(2) include as follows. First, 'the
ability of the parents to cooperate and make decisions jointly, with respect to the
children.' Second, 'the ability of each parent to encourage the sharing of love, affection,
and contact between the child and the other parent.' Third, 'any history of, or potential
for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by
either parent.' Fourth, 'the geographic proximity of the parents to each other, as the
proximity relates to the parental considerations of shared parenting.' Fifth, 'the
recommendation of the guardian ad litem of the child, if the child has a guardian ad
litem.'
{¶18} The trial court prefaced this paragraph with the following determination:
Stark County, Case No. 2011CA00129 7
{¶19} "The approval of a shared parenting plan under R.C. 3109.04(D)(1)(a)(i) is
conditioned on a request from both parties and the submission of a joint plan. The
approval of shared parenting under R.C. 3109.04(D)(1)(a)(ii) also requires a joint
request however the parties each submit separate shared parenting plans. Meanwhile,
under R.C. 3109.04(D)(1)(a)(iii), just one party requests shared parenting and that party
also submits a plan. In the instant case, the scenario under R.C. 3109.04(D)(1)(a)(iii)
best describes the circumstances which resulted in the approval of the parties' Shared
Parenting Plan. Although both parties executed the Shared Parenting Plan, but one
party, the Defendant actually filed a motion for the reallocation of parental rights. As a
result, the termination of the Shared Parenting Plan in this case hinges on a finding of
best interest."
{¶20} The magistrate concluded the following:
{¶21} "In summary, four of the five factors contained in R.C. 3109.04(F)(2)
supports the termination of shared parenting. Meanwhile, the factors set forth in R.C.
3109.04(F)(1) and R.C. 3119.23 are not supportive of maintaining the parties' Shared
Parenting Plan. For these reasons, it is recommended that the parties' Shared
Parenting Plan be terminated."
{¶22} Although the cited objection was not specific as to the lack of a change of
circumstances determination, it claimed the law was misstated. This is true based upon
the Supreme Court of Ohio's analysis of the facts necessary to terminate a shared
parenting agreement in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589. The
Fisher case involved a shared parenting plan and two motions for the reallocation of
Stark County, Case No. 2011CA00129 8
parental rights and responsibilities filed by each parent as the case sub judice. The
Fisher court answered the following conflict question in the negative at ¶1:
{¶23} " 'Is a change in the designation of residential parent and legal custodian
of children a "term" of a court approved shared parenting decree, allowing the
designation to be modified solely on a finding that the modification is in the best interest
of the children pursuant to R.C. 3109.04(E)(2)(b) and without a determination that a
"change in circumstances" has occurred pursuant to R.C. 3109.04(E)(1)(a)?' "
{¶24} The Fisher court concluded the following at ¶37:
{¶25} "In conclusion, we hold 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, pursuant to R.C. 3109.04(E)(1)(a)."
{¶26} Based upon the Fisher holding, we reverse the trial court's decision and
remand the matter for a determination on "change of circumstances" prior to entering
into a best interests analysis.
{¶27} Assignment of Error I is granted.
{¶28} Consistent with our decision in Assignment of Error I, we find the
remaining assignments to be moot.
Stark County, Case No. 2011CA00129 9
{¶29} The judgment of the Court of Common Pleas of Stark County, Ohio,
Family Court Division is hereby reversed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
s/ Sheila G. Farmer________________
s/ John W. Wise___________________
_s/ Julie A. Edwards________________
JUDGES
SGF/sg 130
[Cite as Wright v. Wright, 2012-Ohio-1560.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LEESA WRIGHT (AKA LLOYD WRIGHT) :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
STEVEN WRIGHT :
:
Defendant-Appellee : CASE NO. 2011CA00129
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is
reversed, and the matter is remanded to said court for further proceedings consistent
with this opinion. Costs to appellee.
s/ Sheila G. Farmer________________
s/ John W. Wise___________________
_s/ Julie A. Edwards________________
JUDGES