Bruns V Green

http://www.courtnewsohio.gov/cases/2020/SCO/1008/191028_191178.asp#.X4d6w-17m00

A recent decision[ii] was released by the Ohio Supreme Court that sought to clarify what is legally needed when a parent or parents want to change a “shared parenting” plan.

This case was one of the first held as a virtual oral hearing before the court, so it earns its first historical footnote there. We have been discussing the case and the argument with the attorney for the father while also discussing another case that relates to this issue.

Two statements were made by him, one when we first talked and the second after the decision came out:

“This issue needs to be resolved by the legislature.” He has seen the custody bill that we are proposing and agrees that it solves the problem.

“The Court does not understand what shared parenting is.” How can they when no legal definition of it exists under the statutes? As an FYI – Former Justice Paul Pfeiffer once stated in oral arguments – “we all know what shared parenting is, that is when dad shows up when he does have a golf game.” That is a shameful statement to make.

Reading you will find Stewart’s written decision and Kennedy’s “concurrence” on the issue which is a better analysis of the law and the situation.

Below is some additional information on this case.

All case files for this will be made available to members of our group shortly.

Must Court Find Change in Circumstances Before Terminating Parenting Decree?

Kayleigh Bruns v. Marcus Green, Case No. 2019-1028 and 2019-1178
Tenth District Court of Appeals (Franklin County)

ISSUE: Does the termination of a shared parenting plan and decree, and the subsequent modification of parental rights and responsibilities, first require a court’s finding of a change in circumstances?

BACKGROUND:
Kayleigh Bruns (now Kayleigh Paul) and Marcus Green are the parents of a daughter born in December 2012. The family lived in Westerville, in Franklin County. Bruns and Green separated in March 2014, and they filed an agreed shared parenting plan in October 2014. Both parents were designated as residential parents and legal custodians of their daughter, and they agreed to divide the time with her equally. Green was named the residential parent for school purposes as long as he remained in the Westerville school district.

Bruns soon submitted a notice that she was moving to Heath, in Licking County, where her mother lives. In June 2015, Green submitted a request to the Franklin County Juvenile Court for a change to the parental rights to give him full custody of the child. In late August, Bruns filed a motion to terminate or modify the shared parenting plan and decree, also asking for sole legal custody. Within a month, Green also filed a motion to terminate or modify the plan and decree, again asking for custody.

A guardian ad litem for their daughter submitted a report recommending that Bruns be named the child’s sole residential parent and legal custodian. The court held several hearings in 2017 and terminated the original shared parenting plan and decree in March 2018. The court designated Bruns as the girl’s sole legal custodian and residential parent and ordered Green to pay child support. The court found Green hadn’t complied fully with the parenting plan and decree, had previously threatened to physically harm Bruns, had acted inappropriately and aggressively, and hadn’t presented credible evidence that Bruns had been uncooperative. The court established parenting time for Green.

Green appealed, arguing in part that state law requires the court to make a finding of changed circumstances before terminating the parenting plan and decree. The Tenth District Court of Appeals rejected Green’s argument and upheld the juvenile court’s determinations.

He appealed to the Ohio Supreme Court, which accepted the case. The Tenth District determined that its ruling and other state appellate court decisions conflict with Wright v. Wright (2012), a Fifth District Court of Appeals opinion. The Supreme Court agreed that a conflict exists and will review the issue.

Statutes that Modify and Terminate Parental Decrees
R.C. 3019.04(E)(1)(a) states:

“The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based 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 and one of the following applies:

(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(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)(2)(c) states:

“The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.”

Father Argues Juvenile Court Must Make Findings Before Terminating Decree
Green focuses on R.C. 3019.04(E)(1)(a), which begins, “The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based 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.”

He maintains that a modification encompasses the termination of a parenting decree and, applying this statutory provision, the court must make a finding of a change in circumstances before terminating a parenting decree. He cites a 2007 Ohio Supreme Court decision, Fisher v. Hasenjager, arguing the issue was exactly the same as the issue in this case. The trial court in Fisher stated it was terminating a shared parenting agreement, although the court of appeals concluded that the case involved a modification of a parenting agreement. Green’s brief argues that “this is a distinction without a difference.”

Fisher explained that the intent of subdivision (E)(1)(a) is “to spare children from a constant tug of war between their parents” and to provide stability for the child, Green notes. The Court concluded that subdivision (E)(1)(a) requires a trial court to make a finding of a change in circumstances when modifying a parenting decree.

Green endorses the Fifth District’s ruling in Wright and subsequent cases. In its cases, the Fifth District required trial courts to make a determination both that circumstances had changed and that a modification was in the child’s best interest, as required in R.C. 3019.04(E)(1)(a). Green contends that the cases involved terminations of shared parenting decrees.

Green asks the Court to reverse the Tenth District’s decision and to clarify Fisher by stating “unequivocally” that subdivision (E)(1)(a) applies to terminations of shared parenting plans.

Mother Maintains Termination Provision in State Law Doesn’t Require Court Finding
Bruns counters that R.C. 3109.04(E) describes five different ways that a parenting plan or decree can be modified or terminated. She states that R.C. 3019.04(E)(1)(a) – Green’s focus – addresses a court modification of a prior decree allocating parental rights and responsibilities, while R.C. 3019.04(E)(2)(c) governs the termination of a prior shared parenting decree that includes a shared parenting plan. These are “distinct provisions governing distinct situations,” and this case falls under subdivision (E)(2)(c), her brief argues.

Even if modifications included terminations, a law that is specific (such as the one for terminations) overrides a law that is general (such as the provision for modifications), Bruns explains. She also maintains that the language throughout R.C. 3109.04(E) makes clear that the state legislature intended for subdivisions (E)(1)(a) and (E)(2)(c) to operate independently. For example, after (E)(1)’s text, (E)(2) starts, “In addition to a modification authorized under division (E)(1) of this section: ….” That language distinguishes the terminations described in (E)(2)(c) from the modifications detailed in (E)(1), Bruns argues.

Bruns agrees with Green that Fisher is “highly relevant” in this case, but not for the reasons he suggests. She stresses that the court of appeals in Fisher first determined the shared parenting plan was modified, not terminated as the trial court had concluded. That clarification led the appellate court to find that subdivision (E)(2)(c), regarding terminations, did not apply in the Fisher case, Bruns states. As a result, when the case was appealed to the Supreme Court, its ruling involved the interpretation of two divisions in R.C. 3109.04(E) that only addressed modifications, she contends. She points out, though, that the Court made clear the different subdivisions of the law couldn’t, and shouldn’t, be applied to the same situation. That rationale applies in this case as well, she argues.

She rejects the Fifth District’s rulings, maintaining that all other state appellate courts have concluded subdivision (E)(2)(c) applies when a shared parenting decree is terminated.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Marcus D. Green: Randy Kurek, 614.578.8045

Representing Kayleigh M. Bruns: Emmett Robinson, 216.505.6900

The following are all the case files for this case.

Notice of appeal of Marcus D. Green

Memorandum in support of jurisdiction

Court of Appeals' opinion

Court of Appeals' judgment entry

Notice of pending motion to certify a conflict

DECISION: Appeal accepted. See announcement at 2019-Ohio-4177.

DECISION: This case shall proceed according to the Rules of Practice that govern termination of parental rights. See announcement at 2019-Ohio-4177.