14-111

How to Determine the “Best Interests” of the Child

John D. Zoller

Zoller & Biacsi Co. LPA Cleveland, Ohio

A. Statutory factors: (there are four groups of statutory factors)

1. To determine Best Interests of a Child (BIC): 3109.04 (F)(1)

a. Wishes of the parents – how, when and where expressed.

b. The child’s “wishes and concern” as expressed to the court if the child has been interviewed – presumes a GAL

c. The Child’s interactions and interrelationship with the child’s parents, siblings, and any other person who may significantly affect BIC (household members).

d. Adjustment to 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, visitation and companionship

g. Failure to make child support payments pursuant to an order

h. Parent or household member – convicted of DV, abuse, dependency or neglect, child abuse . . .

i. Continuous and willful denial of parenting time per a court order

j. Establishment of a residence outside of the State.

2. In determining if Shared Parenting is BIC: ORC Sec 3109.04 (F)(2) factors, plus all relevant factors, and:

a. Ability of parents to cooperate and make decisions jointly

b. Ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent

c. Any history of or potential for child or spousal abuse, other domestic violence, or parental kidnapping

d. The geographic proximity of the parents and children

e. The recommendation of the GAL: note, not recommendation of Psych eval.

3. 3109.051 Parenting time rights – more factors –

a. Any mediation report – Grant parenting/ PARENTING time rights if the court deems BIC, and if not BIC, with findings of fact and conclusions of law. Whenever possible, ensure opportunity for both parents to have frequent and continuing contact . . .

4. In determining parenting time rights – 3109.051 (D) the court shall consider

a. Prior interaction and interrelationships of the child with parents, siblings and other persons related by blood or affinity

b. The geographical location of residences of parents and distance between the parents

c. The availability of the parents for parenting, considering school, work, holiday and vacation schedules

d. The age of the child(ren)

e. The children’s adjustment to home, school and community

f. It there has been a wishes and concerns interview, then the wishes and concerns of the child as expressed to the court

g. The amount of time available to spend with siblings

h. The mental and physical health of all parties

i. Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time

j. History of convictions for abuse, neglect, perpetrator of the abuse or neglect and whether there is reason to believe a parent has acted in a manner resulting in a child being an abused or neglected child.

k. For persons who are not parents, whether they have a checkered history of convictions

l. Whether there has been continuous and willful denial of parenting time pursuant to an order

m. Residency outside of Ohio

n. In cases involving non-parents, the wishes and concerns of the child as expressed to the court.

o. Any other factor in the BIC.

B. Tender Years Doctrine abolished – parents have equal rights:

§ 3109.03. Equal parental rights of father and mother

When husband and wife are living separate and apart from each other, or are divorced, and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, they shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved.

C. Elements of a professional Custody Evaluation Report

1. Evaluate the source of the appointment – ie unilateral per Civ. Rule 35, or by joint appointment and court order – immunity of evaluator

2. Elements of report:

a. Non confidentiality

b. List of sources of information

c. Background information and assessment of current status – recitation of psycho-social history

d. Interview observations for each interview

1. Family history of each parent or interviewee

2. Educational history of each parent or interviewee

3. Relevant history of subject – prior marriages, failed relationships, etc.

4. Social history of the subject

5. Work history of the subject

6. Legal history of the subject

7. Substance abuse history of the subject

a. Alcohol

b. Cannabis

c. Prescription medications

8. Medical history of the subject

9. Psychiatric history of the subject

10. Parenting knowledge – experience – insights into relevant child’s status and needs

11. Mental status exam results

a. Appearance and behavior

b. Conversation and thought processes

c. Affect and mood

d. Sensorium and cognitive functioning

e. Mental content – history of psychosis, OCD, paranoia, reality testing

3. Test Results: MMPI – II- RF

Millon Clinical Multiaxial Inventory – III (MCMI-III) Symptom Checklist

Rorschach

Abuse Subtle Screening Inventory - III (SASSI-III)

4. Observations of clinical interactional interviews

5. Collateral Contacts – summary of information received from each source – can you say “hearsay”?

a. Phone interviews – make it easy

b. Documentation provided by parents, attorneys and third parties – day care and school records.

6. Statement of Limitations of Use – Cautionary use of DSM – 5 diagnostic criteria

a. Role of diagnosis in custody evaluation – specific versus generic descriptions – High conflict personalities

7. Citation to peer reviewed studies relevant to BIC – Sole custody parents actually report higher levels of interparental conflict – Bauserman, 2002

8. Citation to leading case law – Ohio Supreme Court – Davis v. flickenger (1997), 77 Ohio St. 3d 415, 419 – BIC encompasses not only the home environment, but also the involvement of both parents. “Today’s society fully admits the need for parenting by both parents – each should have full involvement in a child’s life where possible and desired by the parent.” Cutting one parent out by another materially affects the BIC.

User Name: JOHN ZOLLER

Date and Time: 06/11/2014 4:11 PM EDT

Job Number: 10599347

Documents(22)

1. Ankney v. Ankney, 1997 Ohio App. LEXIS 3412

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

2. Braden v. Braden, 2006-Ohio-6878

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio

3. Depascale v. Finocchi, 2010-Ohio-4869

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

4. Depascale v. Finocchi, 2010-Ohio-4869

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

5. Eatherton v. Behringer, 2012-Ohio-5229

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

6. Eitel v. Eitel, 1996 Ohio App. LEXIS 3821

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

7. H.R. v. L.R., 181 Ohio App. 3d 837

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

8. H.R. v. L.R., 181 Ohio App. 3d 837

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

9. In re Mack, 148 Ohio App. 3d 626

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

10. Jeskey v. Jeskey, 2004-Ohio-5002

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio

11. Kreuzer v. Kreuzer, 1997 Ohio App. LEXIS 3431

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

12. McCleery v. Leach, 2003-Ohio-1875

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

13. Nagy v. Nagy, 1992 Ohio App. LEXIS 412

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

14. ORC Ann. 3109.03

Client/Matter: OSBA

Folder: OSBA CLE

15. ORC Ann. 3109.04

Client/Matter: OSBA

Folder: OSBA CLE

16. Pathan v. Pathan, 2000 Ohio App. LEXIS 119

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Jurisdiction: Ohio; Timeline: 04/11/1991 to 12/31/2014

17. Results list for: custody evaluation report

Client/Matter: OSBA

Folder: OSBA CLE

Terms: custody evaluation report Search Type: Natural Language Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014; Practice Areas & Topics: Child Custody

18. Selected text from: Ohio Civ. R. 35

Client/Matter: OSBA

Linked from:

Folder: OSBA CLE

Linked from: Ohio Civ. R. 35

19. Selected text from: ORC Ann. 3109.051

Client/Matter: OSBA

Linked from:

Folder: OSBA CLE

Linked from: ORC Ann. 3109.051

20. Stalnaker v. Stalnaker, 2000 Ohio App. LEXIS 5638

Client/Matter: OSBA

Folder: OSBA CLE

Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

21. Voytek v. Voytek, 1992 Ohio App. LEXIS 5041

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

Content Type Narrowed by

Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

22. Weisburn v. Weisburn, 1994 Ohio App. LEXIS 1363

Client/Matter: OSBA Folder: OSBA CLE Narrowed by:

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Cases Subscription: In Plan; Practice Areas & Topics: Family Law; Timeline: 01/01/1991 to 12/31/2014

Reporter: 1997 Ohio App. LEXIS 3412; 1997 WL 435689

ANDREA ANKNEY, Plaintiff-Appellant v. DAVID ANKNEY, Defendant-Appellee

Prior History: [*1] T.C. NO. 95-DR-0399.

Disposition: Affirmed.

trial court, custody, parties, minor child, work schedule, residential, appears, male friend, unmarried, marriage, divorce

Procedural Posture

Appellant mother sought review of a judgment by the trial court (Ohio), which awarded custody of the couple’s two minor children to appellee father. The mother had a son from a prior marriage and two children with the father, and she moved for psychological evaluations of everyone involved in the divorce action. The parties agreed on a doctor, and after interviewing everyone separately, he recommended that the father have custody.

Overview

The doctor reported that the marriage deteriorated after the mother returned to work, that her work schedule was erratic, and that the father had increased responsibility for the children and the home. The father denied any physical abuse, and the mother denied any infidelity but admitted that her schedule was not constant. She also admitted staying overnight twice with an unmarried male friend and her children. The doctor opined that, although neither parent was an exceptionally superior or poor candidate, the father had a highly predictable schedule that allowed more time with the children. He noted that the father had a close relationship with his parents, who were involved with the children and willing to assist with their care. The trial judge heard the parties’ testimony and interviewed the minors in chambers. On review, the court found that the question of which parent should have the children was within the trial court’s discretion, and that the trial court’s decision should be given great deference. It held that the doctor’s report provided a plausible rationale for awarding the father custody.

Outcome

The court affirmed the trial court’s decision.

Civil Procedure > Appeals > Standards of Review > General Overview

Family Law > Child Custody > General Overview

Family Law > Child Custody > Custody Awards > General Overview

Family Law > ... > Custody Awards > Physical Custody > Residential Parents

HN1 The determination of which parent shall be designated the residential parent and legal custodian of a minor child is within the discretion of the trial court, and the trial court’s determination should be given great deference. In proceedings involving the custody and welfare of children the power of a trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.

Counsel: PAUL W. BARRETT, S.Ct. Regis.No. 18738,

1354 N. Monroe St., Suite B, Xenia, OH 45385, Attorney for Plaintiff-Appellant.

DAVID B. GRIESHOP, S. Ct. Regis. No. 18547, 314 West

Fourth Street, Dayton, OH 45402, Attorney for Defendant-Appellee.

Judges: FAIN, J., YOUNG, P.J., and BROGAN, J.,

concur.

Opinion by: FAIN

OPINION

FAIN, J.

Plaintiff-appellant Andrea Ankney appeals from a judgment and decree of divorce awarding custody of the two minor children of the parties to defendant-appellee David Ankney. Ms. Ankney contends that the trial court abused its discretion when it awarded custody of the children to Mr. Ankney. From our review of the record, we conclude that the trial court’s award of custody of the children to Mr. Ankney was not an abuse of discretion.

Accordingly, the judgment of the trial court is Affirmed.

I

The parties were married in 1987. Ms. Ankney was married once before, and has a son, Derrick Michael Linder, by that prior marriage. Two children, Christopher David Ankney and Natalie Marie Ankney, were born of the marriage between the parties. The children are presently eight and six years old, respectively.

[*2] Ms. Ankney brought this action for divorce in 1995. Custody of the two children of the parties was contested. Ms. Ankney moved for psychological evaluations of the parties and the children. Her motion was granted, and the parties agreed that John P. Layh would perform the evaluation. Dr. Layh, a clinical and consulting psychologist, met with both parties, their two children, and Derrick, Ms. Ankney’s child by a prior marriage. Dr. Layh submitted a report of his evaluation to the court. His deposition was subsequently taken, and a transcript of Dr. Layh’s deposition was filed in the trial court, and is part of our record.

At trial, both parties testified. After the hearing, the trial court rendered a judgment finding that Mr. Ankney was the parent best suited to have the care, custody, and control of the children, and establishing him as the residential and custodial parent. From this judgment, Ms. Ankney appeals.

Ms. Ankney’s sole Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED CUSTODY OF THE TWO MINOR CHILDREN TO THE DEFENDANT-APPELLEE.

HN1 The determination of which parent shall be designated the residential parent and legal custodian [*3] of a minor child is within the discretion of the trial court, and the trial court’s determination should be given great deference.

In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.

Trickey v. Trickey (1952), 158 Ohio St. 9, at 13, 106 N.E.2d 772.

In the case before us, the trial judge heard the testimony of the parties, and interviewed both of their minor children in

chambers. We have reviewed the transcript of the trial, as well as the transcript of the in-chambers interview of the minor children. Furthermore, the trial court received the report of Dr. John P. Layh, who appears to have met separately with each parent, with the children, on two occasions before preparing his evaluation. The trial court had before it Dr. Layh’s report, as well as a transcript of his deposition. We have reviewed all these materials, as well.

Although the trial court did not express its reasoning in its judgment entry, Dr. Layh’s report provides [*4] a plausible rationale for selecting Mr. Ankney as the residential parent and legal custodian of the children. The conclusion of Dr. Layh’s report is worth quoting in full:

Summary:

Andrea and David Ankney were referred for psychological evaluations by Greene County Domestic Relations Court to assist the court in determining custody of the three minor children, Derrick Linder (13 years old), Christopher Ankney (6 years old) and Natalie Ankney (5 years old).

Since Mrs. Ankney’s return to work approximately two years ago, it is clear that their marital relationship has deteriorated. Mr. Ankney openly admits that he would have preferred his wife to stay home like his own mother. He believes that she is involved with another man and admits to ²flying off the handle at times² because of his wife’s alleged involvement and absence. It would appear that he has assumed an increasing amount of responsibility of the care of the children and the management of the house as his wife’s somewhat erratic work schedule has required her to be out of the home. He denies physical abuse of his wife.

Andrea Ankney denies a sexual relationship with another man, but admits that she has many [*5] friends, including unmarried male friends, with whom she plays sports or socializes. She has multiple resentments toward her husband, many that appear to date back years such as her allegation that he elected to go to work rather than personally drive she and the children home from the hospital when they were born, inviting other friends to join them on a house boating ²honeymoon² 8 years ago, etc.

Psychologically, both parties have strengths and weaknesses. Mr. Ankney is angry and hurt with a tendency to be vindictive. His social skills and interests are more limited. He gets frustrated at times and may not always set clear and consistent limits.

Mrs. Ankney over personalizes but minimizes her own contributions to the problems. While more socially active, she may tend to place her own needs first. Both are

concerned about the impact of the conflict and divorce on their children.

Regarding the difficult task of determining who should be the custodial parent, neither individual stands out as being an exceptionally superior or poor candidate.

Mr. Ankney appears to enjoy a close relationship with his parents who are involved with the children on a frequent basis and are reportedly [*6] willing to assist with childcare when needed. He appears to have a highly predictable work schedule and more time to devote to the childrens’ needs.

Mrs. Ankney’s varied work schedule appears to be potentially problematic in allowing the children to have a more predictable schedule. Her childcare resources appear somewhat less firm. Her extra marital activities appear to demand additional time away from the children.

According to the children, Mr. Ankney currently appears to be functioning as the executive parent. Mrs. Ankney’s judgement regarding involvement of the children with her unmarried male friend appears questionable.

Recommendations:

1. It is the opinion of this examiner that the children may have a more routine and stable home life if residential custody is granted to David Ankney.

2. Andrea Ankney should have frequent, regular and liberal visitation with her children. Ideally, the best interest of the children would be met by continuing their current schedule of contact with Mr. and Mrs. Ankney. It would be highly desirable if she were able to continue to assist with childcare before and after school on days she does not work or as her work schedule permits. [*7] Having the younger children over night on days she does not work would be ideal.

3. David Ankney admits that he, at times, has some difficulty with limit setting. He would benefit from

participating in a parent education program such as is available at the Family Service Agency or The Community Network.

4. Since Derrick Linder is not legally adopted by Mr. Ankney, it is assumed custody will fall to Mrs. Ankney for him. However his relationship with Mr. Ankney is important to him and regular contact should be established. Special concern should be placed on Derrick continuing to attend the same school or live as close to his current neighborhood if at all possible.

Although each parent, at trial, tended to emphasize his or her own involvement with the children, at the expense of the other parent, their testimony was not altogether inconsistent with Dr. Layh’s conclusions. Ms. Ankney acknowledged that her work schedule is not constant but changes from week to week. She also acknowledged having more activities outside the home that would appear to demand more time away from the children. Finally, although Ms. Ankney denied having been sexually involved with an unmarried male friend, [*8] she admitted to having stayed overnight with him, with her children, on two occasions. Furthermore, several Valentine cards, admitted into evidence, that Ms. Ankney received from her unmarried male friend suggest that their relationship, even if platonic, was not casual.

Dr. Layh’s report presented the trial court with a plausible rationale, consistent with the evidence in the record, for designating Mr. Ankney as the residential parent and legal custodian of the children. Accordingly, we conclude that the trial court did not abuse its discretion when it did so.

Ms. Ankney’s sole Assignment of Error is overruled.

III

Ms. Ankney’s sole Assignment of Error having been overruled, the judgment of the trial court is Affirmed.

YOUNG, P.J., and BROGAN, J., concur.

Reporter: 2006-Ohio-6878; 2006 Ohio App. LEXIS 6798

KRISTINA L. BRADEN, Plaintiff-Appellee, - vs - RYAN

L. BRADEN, Defendant-Appellant.

Prior History: [**1] Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2003 DR 0207.

Disposition: Affirmed.

trial court, custody, visitation, recommendation, wishes, guardian ad litem, visitation rights, supervised visitation, minor child, factors, modification, abused, assigned error, ad litem, modifying, parties, telephone, best interests of the child, supplemental report, home study, interview, oldest, best interest of the minor, abuse of discretion, health and safety, factors listed, due process, notice

Procedural Posture

Appellant father sought review of a decision from the Portage County Court of Common Pleas, Domestic Relations Division (Ohio), which denied his request for custody of the parties’ children and instead, restricted his visitation rights with his two minor children. The children’s custody was with appellee mother.

Overview

When the parties were divorced, the mother was named as the children’s custodial parent and the father was granted reasonable visitation. He filed an emergency motion for custody or shared parenting. Multiple testing and evaluations were conducted and guardian ad litems were appointed to investigate the issues. After investigation, the father’s concerns were deemed unfounded. Based on a determination that he was inappropriately influencing the children and making derogatory statements about the mother, the trial court ordered no telephone contact and supervised visitation. On appeal, the court found that the trial court’s modifications did not violate due process, as the father had notice of potential modifications when he filed his custody request and when one of the guardians recommended restricted visitation. Although the trial court

had relied on R.C. § 3109.04 in making its visitation determination, it considered the additional factors under R.C. § 3109.051 as well. There was no requirement that the trial court consider the children’s wishes, although it took them into consideration. The evidence supported the restricted visitation due to the father’s emotional instability.

Outcome

The court affirmed the decision of the trial court.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Family Law > Child Custody > Custody Awards > General Overview Family Law > ... > Visitation > Visitation Awards > General Overview

HN1 A trial court’s decision regarding the allocation of parental rights and responsibilities will not be disturbed on appeal absent an abuse of discretion. Appellate consideration of visitation matters is also reviewed pursuant to an abuse of discretion standard. Abuse of discretion connotes more than error of judgment, it implies that the court’s attitude was unreasonable, arbitrary or unconscionable.

Family Law > ... > Custody Awards > Standards > Best Interests of Child

Family Law > Child Custody > Jurisdiction > Continuing Jurisdiction

HN2 An original adjudicating trial court retains jurisdiction regarding custody, support and related matters. Prompted by a motion seeking custody, the trial court is required to act in the best interest of the minor children.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN3 Due process requires both notice and opportunity to be heard.

Family Law > ... > Visitation > Visitation Modification > General Overview

HN4 Modification of visitation rights is governed by R.C.

§ 3109.051.

Family Law > ... > Visitation > Visitation Modification > General Overview

Family Law > Child Custody > Visitation > Restrictions on Visitation

HN5 See R.C. § 3109.051(D).

Family Law > ... > Visitation Awards > Standards > Best Interests of Child

Family Law > ... > Visitation > Visitation Modification > General Overview

HN6 When modifying visitation, a trial court is required to consider the 16 factors of R.C. § 3109.051(D) and then set forth visitation that is in the best interest of the minor children.

Family Law > ... > Visitation > Visitation Modification > General Overview

HN7 It is not necessary for a court to recite each and every factor of R.C. § 3109.051(D) in modifying visitation.

Family Law > Child Custody > Custody Modification > General Overview

Family Law > ... > Visitation > Visitation Modification > General Overview

HN8 The factors listed in R.C. § 3109.04 are essentially the same as those factors listed in R.C. § 3109.051. However, § 3109.051(D), the statute governing visitation, includes additional factors under § 3109.051(D)(3), (4), (7), and (8).

Family Law > ... > Visitation > Visitation Modification > General Overview

HN9 See R.C. § 3109.051(D)(3), (4), (7), and (8).

Family Law > ... > Visitation > Visitation Modification > Preference of Child

HN10 R.C. § 3109.051 does not require a court to consider the children’s wishes unless the children are interviewed in chambers and are capable of expressing those interests for purposes of modification of visitation.

Family Law > ... > Visitation > Visitation Modification > Preference of Child

HN11 See R.C. § 3109.051(C).

Family Law > ... > Visitation Awards > Standards > Best Interests of Child

Family Law > ... > Visitation > Visitation Modification > General Overview

HN12 A trial court must act in the best interest of the child with respect to decisions regarding visitation modification.

Counsel: David A. Sed, Ravenna, OH, (For Plaintiff-Appellee).

Kim S. Kohli, Garrettsville, OH, (For Defendant-Appellant).

Robert E. Rosenberg, Ravenna, OH, (Co-Guardian ad litem).

Benito C. R. Antognoli, Kent, OH, (Co-Guardian ad litem).

Judges: CYNTHIA WESTCOTT RICE, J. WILLIAM M. O’NEILL, J., COLLEEN MARY O’TOOLE, J., concur.

Opinion by: CYNTHIA WESTCOTT RICE

CYNTHIA WESTCOTT RICE, J.

[*P1] Appellant, Ryan L. Braden, appeals a decision by the Portage County Court of Common Pleas, Domestic Relations Division, which denied appellant’s request for custody and instead restricted appellant’s visitation rights with his two minor children. For the reasons that follow, we affirm.

[*P2] Appellant and Kristina L. Braden, appellee herein, were divorced on February 6, 2004. The parties are the parents to two minor children; Tyler, d.o.b. 1-10-97 and Travis, d.o.b. 8-18-02. Following the divorce, appellee was named custodial parent of the two minor children. Appellant was ordered to have reasonable visitation, but no less than the court’s standard order.

[*P3] [**2] On October 27, 2004, appellant filed an emergency motion seeking either custody or shared parenting of the parties’ minor children. Due to the concerns raised by appellant, the court ordered home studies, psychological evaluations and drug and alcohol testing. Atty. Robert E. Rosenberg was appointed by the trial court as guardian ad litem to investigate the custody dispute and appellant’s concerns.

[*P4] Atty. Rosenberg filed a report wherein he recommended that appellee continue as the custodial parent. Following this report, appellant requested that Atty. Rosenberg be removed as guardian ad litem. Appellant, through his legal counsel, requested that Atty. Benito Antognoli be appointed guardian ad litem instead. The court refused to remove Atty. Rosenberg but accommodated appellant’s concerns by appointing Atty. Antognoli as co-guardian ad litem. ¹ The home studies

were completed on both homes revealing no problem areas. However, appellant’s home study was inconclusive as a result of his failure to actively participate in the home study. At the request of appellant, Dr. John E. Alexander conducted the psychological evaluations. According to Dr. Alexander, appellant’s [**3] concerns regarding appellee’s inability to properly care for the children were unfounded. Dr. Alexander further observed that the parties’ oldest son was anxious and concerned that Father would discover the nature of his conversations with the psychologist. There was no evidence to suggest that the child was not happy with the current custodial arrangements.

[*P5] Atty. Antognoli submitted his first report on February 3, 2006. This guardian ad litem also recommended that appellee maintain legal custody. The report also expressed concern that appellant was making derogatory statements about appellee to the children. The report stated that if appellant was unable to rectify his behavior, supervised visitation should be considered. On February 7, 2006, Atty. Antognoli submitted a supplemental report wherein he recommended appellant’s visitation be restricted to supervised only and no telephone [**4] contact. This recommendation came as a result of appellant’s alleged inability to refrain from inappropriately influencing the oldest child. According to the report and confirmed by appellant at trial, appellant had instructed the minor child to report his mother to school officials for failing to care for them properly.

[*P6] On January 13, 2006, appellant filed a motion requiring appellee to show cause why she failed to comply with the holiday visitation schedule. Both motions came on for hearing on March 14, 2006. The trial court issued its judgment entry on March 16, 2006. In its judgment entry, the trial court denied appellant’s motion for custody or shared parenting and modified appellant’s visitation rights with his minor children to supervised visitation only. The trial court ordered appellant to have supervised visitation every Saturday and Sunday for a three-hour period each day. The court ordered no telephone contact between appellant and the minor children. This was a provisional order by the trial court. The trial court implemented the supervised visitation ²until the counselor engaged by Defendant advises the [c]ourt when Defendant may resume unsupervised visitations [**5] to serve the best interests of the children.

[*P7] HN1 A trial court’s decision regarding the allocation of parental rights and responsibilities will not be disturbed on appeal absent an abuse of discretion. Masters v. Masters (1994), 69 Ohio St.3d 83, 85, 1994 Ohio 483, 630 N.E.2d 665. Appellate consideration of visitation matters is also reviewed pursuant to an abuse of discretion standard. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45,

1999 Ohio 203, 706 N.E.2d 1218. Abuse of discretion connotes more than error of judgment, it implies that the court’s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140.

[*P8] Appellant sets forth the following assignments of error:

[*P9] ²[1.] The Trial Court lacked jurisdiction to enter an order modifying Defendant/Appellant’s visitation rights where no motion to modify Defendant/Appellant’s visitation had been filed with the Court.

[*P10] ²[2.] The Court failed to apply the statutory factors listed at R.C. 3109.051(D) when it determined that Father should have supervised visitation with the children.

[*P11] ²[3.] The [C]ourt abused its discretion [**6] and acted contrary to statute when it failed to consider the children’s wishes regarding contact with their Father.

[*P12] ²[4.] The [C]ourt abused its discretion when it relegated Father to supervised visitation and no telephone contact with the children.²

[*P13] In appellant’s first assignment of error, he challenges the trial court’s jurisdiction to restrict his companionship rights when there was no formal motion presented to the court requesting the modification of appellant’s companionship rights. HN2 The original adjudicating trial court retains jurisdiction regarding custody, support and related matters. In Re Byerly, 11th Dist. Nos. 2001-P-0158 & 2001-P-0159, 2004 Ohio 523,

at P38; see, also, Hardesty v. Hardesty (1984), 16 Ohio App.3d 56, 58, 16 Ohio B. 59, 474 N.E.2d 368. Although no motion was before the trial court requesting a modification of visitation per se, appellant’s motion for custody and his motion to show cause provided the means through which the trial court reached the restriction of appellant’s visitation rights. Prompted by appellant’s motion seeking custody, the trial court was required to act in the best interest of the minor children. [**7] Bouffard v. Bouffard, 7th Dist. Nos. 00-CA-59 & 00-CA-44, 2001 Ohio 3148, *5. It was not unreasonable for the trial court to examine the visitation rights of appellant in light of the evidence presented to the trial court on the heels of appellant’s motion for custody. See, Chauncey v. Chauncey (Dec. 1, 1994), 8th Dist. No. 66197, 1994 Ohio App. LEXIS 5369, *8. (Converting motion for visitation into motion for custody). In addition, appellant’s motion to show cause required an examination of the visitation issues between the parties and their minor children by its very subject matter.

[*P14] Appellant opened the door for the trial court to make a complete custody evaluation by filing his motion

for sole custody. Id. As part of the court’s custody evaluation, and in order to protect the best interest of the minor children, the trial court issued a custody determination that included a restriction of appellant’s visitation rights. This was not an abuse of discretion.

[*P15] In the alternative, appellant claims he was denied due process by the trial court’s sua sponte modification of his visitation. Contrary to appellant’s assertion that he [**8] was not provided prior notice of the modification request, appellant was indeed on notice of the potential for the reduction in his visitation rights. Atty. Antognoli, the second court-appointed guardian ad litem, filed a supplemental report on February 9, 2006. On that same day, the trial court issued letters to each parties’ legal counsel as well as the co-guardian ad litem, advising that the report had been filed and was available for review at the court. The hearing in this matter was March 14, 2006. Atty. Antognoli’s supplemental report is quite clear as to his recommendation regarding appellant’s restricted and supervised visitation. Furthermore, appellant had the opportunity to question Atty. Antognoli regarding his report and recommendation at the hearing in this matter. Appellant also testified and presented his rebuttal argument to the guardian ad litem’s recommendation.

[*P16] HN3 Due process requires both notice and opportunity to be heard. Byerly, supra. Appellant was present at the hearing. Appellant was represented by counsel. Appellant testified on his own behalf. Appellant should have been aware that the trial court would be considering a restriction on appellant’s [**9] visitation rights given the strong recommendation in Atty. Antognoli’s supplemental report filed more than a month prior to the hearing. Appellant did not request a continuance or express a desire to present additional evidence. In short, appellant was not denied due process. See, Yeupell v. Yeupell, (June 7, 1996), 6th Dist. No. WM-95-021, 1996 Ohio App. LEXIS 2298, *4.

[*P17] Appellant’s first assignment of error is without merit.

[*P18] Appellant’s second assignment of error claims the trial court applied the wrong law when it restricted appellant’s visitation with his minor children. HN4 Modification of visitation rights is governed by R.C. 3109.051. Braatz, supra, at paragraph one of the syllabus. In the judgment entry, the trial court specifically references R.C. 3109.04 and states that the court has considered those statutory factors in rendering its decision regarding custody. As part of the court’s custody determination, the court restricted appellant’s visitation rights. This restriction necessitates a consideration of the factors set forth in R.C. 3109.051 [**10] which provides in relevant part:

[*P19] HN5 ²(D) In determining whether to grant parenting time to a parent pursuant to this section *** the court shall consider all of the following factors:

[*P20] ²(1) The prior interaction and interrelationships of the child with the child’s parents, siblings, and other persons related by consanguinity or affinity ***;

[*P21] ²(2) The geographical location of the residence of each parent and the distance between those residences

***;

[*P22] ²(3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;

[*P23] ²(4) The age of the child;

[*P24] ²(5) The child’s adjustment to home, school, and community;

[*P25] ²(6) If the court has interviewed the child in chambers, *** the wishes and concerns of the child ***;

[*P26] ²(7) The health and safety of the child;

[*P27] ²(8) The amount of time that will be available for the child to spend with siblings;

[*P28] ²(9) The mental and physical health of all parties;

[*P29] ²(10) Each parent’s willingness to [**11] reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;

[*P30] ²(11) In relation to parenting time, whether 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 ***;

[*P31] ²(12) *** whether the person 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 *** and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;

[*P32] ²(13) Whether the residential parent of 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;

[*P33] ²(14) Whether either parent has established a residence or is planning to establish a residence outside this state;

[*P34] ²(15) In relation [**12] to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents ***

[*P35] ²(16) Any other factor in the best interest of the child.²

[*P36] HN6 When modifying visitation, the trial court is required to consider these sixteen factors and then set forth visitation that is in the best interest of the minor children. Braatz, supra, at 45. The trial court specifically referenced and incorporated the following documents into its order:

²the drug and alcohol assessment conducted by Townhall II; the Guardian Ad Litem report of Attorney Rosenberg; the home study evaluations conducted by Family & Community Services, Inc. of the separate homes where the children reside with the Plaintiff when they are with her and where they visit with the Defendant when they are with him; the psychological evaluation of Dr. John Alexander; and Attorney Antognoli’s Guardian Ad Litem separate reports of February 3, 2006 and February 9, 2006.²

[*P37] A review of the record, including those specific documents incorporated by the trial court and listed above, confirms that the trial court did consider the factors listed in R.C. 3109.05 [**13] even though it did not specifically reference or enumerate those factors. HN7 It is not necessary for a court to recite each and every factor. North v. Murphy (Mar. 9, 2001), 5th Dist. No. 2000AP050044, 2001 Ohio App. LEXIS 1114, *8; see, also, Smith v. Smith (1991), 75 Ohio App.3d 679, 684, 600 N.E.2d 396.

[*P38] HN8 The factors listed in R.C. 3109.04 are essentially the same as those factors listed in R.C. 3109.051. However, R.C. 3109.051(D), the statute governing visitation, includes the following additional factors:

[*P39] ² ***

[*P40] HN9 ²(3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;

[*P41] ²(4) The age of the child;

[*P42] ² ***

[*P43] ²(7) The health and safety of the child;

[*P44] ²(8) The amount of time that will be available for the child to spend with siblings; ***.²

[*P45] The home study evaluation of the Family and Community Services, Inc. sufficiently provided

consideration of the [**14] parents’ and child’s available time. In respect to appellee, the study outlined her work schedule as it coordinated with the children’s school and child care schedules. Likewise, the report included a questionnaire filled out by appellant that indicated his availability for the children was unlimited due to his unemployment.

[*P46] The ages of the children was properly considered by both guardians ad litem as well as Dr. Alexander. The children’s ages and accompanying maturity was detailed in Dr. Alexander’s custody evaluation.

[*P47] The health and safety of the children was outlined in each guardian ad litem report and in the custody evaluation. Each corresponded to a nearly identical diagnosis. The health and safety of the children was better served by the current custodial arrangements. The supplemental report of Atty. Antognoli as guardian ad litem was even more directed at the health and safety of the children; specifically their mental and emotional well-being. Specifically, Atty. Antognoli stated, ²*** Mr. Braden continues to engage in conduct not befitting a proper parent. This behavior is further evidence of his propensity to allow his disdain for Ms. Braden to [**15] override common sense with regard to the care and proper treatment of his children.²

[*P48] The children do not have any other siblings for consideration of the final factor.

[*P49] Therefore, upon review of the entire record, specifically the reports incorporated into the trial court’s order, it is clear that although the trial court did not specifically enumerate the laundry list of factors contained within R.C. 3109.051, each factor was properly considered as was each factor contained within R.C. 3109.04.

[*P50] Appellant’s second assignment of error is without merit.

[*P51] Appellant’s third assignment of error challenges the trial court for failing to consider the children’s wishes regarding contact with appellant prior to rendering its decision. HN10 R.C. 3109.051 does not require the court to consider the children’s wishes unless the children are interviewed in chambers and are capable of expressing those interests. Furthermore, as discussed herein, the court incorporated the custody evaluation of Dr. Alexander as well as the guardian ad litem reports. The custody evaluation detailed [**16] Dr. Alexander’s discussions with the oldest child wherein he expressed his wishes.

²When I asked if he thought that he sees his Father enough, his response was ’Yeah.’ When I then asked if he thought that he sees his Mother enough, his comment was that he would prefer to see her ’a little bit more.’² The

child reiterated that he was comfortable with the current custodial and visitation arrangements during another visit with Dr. Alexander. Therefore, based on the record, the wishes and concerns of the oldest child were properly considered by the trial court even though the trial court did not interview the children. ² In addition, according to R.C. 3109.051(C), which states in relevant part, HN11 ²***the court, in its discretion, may interview in chambers any or all involved children regarding their wishes and concerns.² Due to the age of the children, the circumstances of the situation and the fact that a custody evaluation had been performed by a physician as well as an investigation by two guardian ad litem, we cannot conclude that the trial court abused its discretion by failing to interview the children regarding their wishes when that decision is optional [**17] in the first place. Second, the record demonstrates the children’s wishes were properly considered.

[*P52] Appellant’s third assignment of error is without merit.

[*P53] Appellant’s fourth assignment of error again asserts that the trial court abused its discretion in restricting appellant’s visitation with the minor children. The record does not support this assignment of error. Two guardians ad litem submitted reports that indicated instability in appellant’s emotional status. The second guardian ad litem strongly cautioned appellant in his first report that his controlling behavior was inappropriate in relation to his children and that further actions consistent with his previous behavior would result in [**18] a recommendation for supervised visitation. Atty. Antognoli stated that appellant engaged in inappropriate conduct in front of the children on a repeated basis. He further advised appellant that he refrain from making derogatory

comments about appellee to the children and discontinue his efforts to influence the children regarding the custody matter. Appellant failed to heed this advice. Therefore, the supplemental report of Atty. Antognoli recommended the supervised visitation and suspension of telephone contact. This recommendation was based on actual events, not speculation.

[*P54] Further, this recommendation is supported throughout the record. Dr. Alexander’s custody evaluation discussed the oldest child’s concerns that his discussions with the doctor would be repeated to his father, appellant. Dr. Alexander’s evaluation further confirmed appellant was capable of this controlling behavior by finding that persons consistent with appellant’s psychological profile,

²*** typically have exaggerated needs for affection and tend to manipulate others for sympathy and attention.²

[*P55] HN12 A trial court must act in the best interest of the child. Bouffard, supra. The trial [**19] court went to great lengths in its judgment entry to outline the basis for its decision. The trial court was clearly looking out for the children’s best interests. Based on the evidence before it, we cannot say that the trial court abused its discretion in modifying appellant’s visitation from unsupervised to supervised. Nor can we say the trial court abused its discretion in terminating appellant’s telephone contact.

[*P56] Appellant’s fourth assignment of error is without merit.

[*P57] For the reasons stated in the Opinion of this court, it is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas, Domestic Relations Division, is affirmed.

WILLIAM M. O’NEILL, J., COLLEEN MARY

O’TOOLE, J., concur.

ANGELA M. DEPASCALE, PLAINTIFF-APPELLEE,

-vs- JOSEPH S. FINOCCHI, DEFENDANT-APPELLANT.

Prior History: [**1] CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Domestic Relations Division, Case No. 05 DR 298.

Disposition: Affirmed.

trial court, parties, circumstances, parental rights, responsibilities, modification, residential, custody, child support, modify, best interests of the child, reallocation, decree, terms, Services, issues, sleeping, factors, arrangements, communicate, change of circumstances, abuse of discretion, prior decree, contempt, argues, designated, exchanges, requires, divorce, extracurricular activities

change in circumstances, the trial court did not abuse its discretion by not reallocating the parties’ parental rights and responsibilities. As for the shared parenting plan, the testimony of several witnesses supported a decision to give more parenting time to the father, but such a decision was to be made through a reallocation of parental rights and responsibilities, not through a modification of the terms of a shared parenting agreement. Finally, the father’s objections to the child support calculations were not raised in the trial court, and thus were waived on appeal.

Outcome

The judgment was affirmed.

Family Law > ... > Custody Awards > Standards > Best Interests of Child

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN1 See R.C. 3109.04(E)(1)(a).

Procedural Posture

The Mahoning County Court of Common Pleas, Domestic Relations Division, (Ohio) found that there was not a change in circumstances among appellant father and appellee mother or their minor children that warranted a modification of the parties’ parental rights and responsibilities under R.C. 3109.04(E)(1)(a). The court maintained, but modified, the parties’ parenting schedule from their shared parenting plan. The father appealed.

Overview

The father argued that the trial court’s finding of no change in circumstances was against the manifest weight of the evidence. On appeal, the court found that a variety of negative circumstances affected the parties, primarily due to the parents’ ongoing animosity and inability to communicate or cooperate. However, these circumstances existed at the time of the original decision, and the trial court found that the parties’ claims of extreme conflict were exaggerated and lacked credibility. Although it was a close issue as to whether the ongoing and perhaps worsening conflict between the parents constituted a

Family Law > ... > Custody Awards > Legal Custody > Joint Legal Custody

Family Law > ... > Custody Awards > Standards > Best Interests of Child

Family Law > Child Custody > Custody Modification > Changed Circumstances

Family Law > Child Custody > Child Custody Procedures

HN2 Multiple steps must be satisfied for a trial court to reallocate parental rights in the context of a shared parenting agreement: (1) there must be an initial threshold showing of a change in circumstances of the child or either parent, brought about by facts that have changed since the date of the prior decree or which were unknown to the court at that time; and (2) if circumstances have changed, the court may reallocate parental rights as necessitated by the best interests of the child. R.C. 3109.04(E)(1)(a) also requires the court to retain the residential parent designated by the prior decree unless (1) the modification is in the best interest of the child; and (2) one of three additional factors applies.

Family Law > ... > Custody Awards > Legal Custody > Joint Legal Custody

Family Law > ... > Custody Awards > Physical Custody > Joint Physical Custody

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN3 The intent of R.C. 3109.04 is to spare children from a constant tug of war between parents who may file a motion to modify parental rights and responsibilities each time the parent without full custody thinks he or she could provide the children with a better environment. Even when both parents in a shared parenting agreement request a reallocation of parental rights and responsibilities, a change in circumstances still must be found before the trial court may grant either party’s request.

Civil Procedure > Judicial Officers > Judges > Discretionary Powers

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Family Law > ... > Custody Awards > Legal Custody > General Overview

Family Law > ... > Custody Awards > Physical Custody > General Overview

HN4 A trial court has broad discretion in its determination of parental custody rights. Because custody issues are some of the most difficult and agonizing decisions a trial judge must make, he or she must have wide latitude in considering all the evidence and such a decision must not be reversed absent an abuse of discretion. Therefore, a trial court’s custody determination should not be disturbed unless it constitutes an abuse of discretion.

Civil Procedure > Judicial Officers > Judges > Discretionary Powers

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Evidence > ... > Presumptions > Particular Presumptions > Regularity

Family Law > ... > Custody Awards > Legal Custody > General Overview

Family Law > ... > Custody Awards > Physical Custody > General Overview

HN5 The discretion which a trial court enjoys in custody matters should be accorded 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. In this regard, a reviewing court in such proceedings should be guided by the presumption that the trial court’s findings were indeed correct.

Civil Procedure > Judicial Officers > Judges > Discretionary Powers Evidence > Burdens of Proof > Allocation

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN6 For a trial court to make the threshold determination that there has been a change of circumstances, a movant

need not prove that there has been a substantial change in circumstances, but the change must be a change of substance, not a slight or inconsequential change. The phrase, ²change in circumstances,² is generally intended to denote an event occurrence, or situation which has had a material and adverse effect upon a child. A trial court has the broad discretion to determine whether sufficient changed circumstances have occurred between the parents in order to proceed past this threshold question.

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN7 Ohio courts have considered a variety of factors that are relevant to the change-in-circumstances requirement of R.C. 3109.04(E)(1)(a).

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN8 A combination of factors must be considered to amount to a change in circumstances.

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN9 The presence of any one factor alone will not dictate whether there has been a change of circumstances between parties. The specific and unique circumstances of the parties will always frame the issue, and the occurrence of certain events may or may not constitute a change in circumstances depending on the context in which they occurred, and depending on the surrounding totality of the circumstances.

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Family Law > Child Custody > Custody Modification > Changed Circumstances

Governments > Courts > Authority to Adjudicate

HN10 See R.C. 3109.04(E)(2)(b).

Family Law > ... > Custody Awards > Legal Custody > Joint Legal Custody

Family Law > ... > Custody Awards > Physical Custody > Joint Physical Custody

Family Law > ... > Custody Awards > Standards > Best Interests of Child

Family Law > Child Custody > Custody Modification > Changed Circumstances

HN11 Although R.C. 3109.04(E)(1)(a) requires a change in circumstances to modify a prior allocation of parental rights and responsibilities, R.C. 3109.04(E)(2)(b) only

requires a consideration of the best interest of the children and does not require a finding of a change in circumstances to modify the terms of a shared parenting plan. The terms of a shared parenting plan govern the way in which the parents’ respective rights and responsibilities are carried out. The terms include things such as a child’s living arrangements, medical care, and school placement. R.C. 3109.04(G). A modification that changes the allocation of parental rights and responsibilities cannot be executed through the terms of a shared parenting agreement, and requires a change in circumstances pursuant to R.C. 3109.04(E)(1)(a).

Family Law > ... > Custody Awards > Legal Custody > Joint Legal Custody

Family Law > ... > Custody Awards > Physical Custody > Joint Physical Custody

Family Law > Child Custody > Child Custody Procedures

HN12 A standard parenting time order in accordance with R.C. 3109.051 is only applicable in the event that there is no shared parenting agreement, and one parent is named the residential parent. R.C. 3109.051(A).

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

HN13 It is axiomatic that a reviewing court will not consider any error that a party failed to bring to a trial court’s attention at a time when that alleged error could have been addressed by the trial court.

Counsel: For Plaintiff-Appellee: Attorney James Vivo, Youngstown, OH.

For Defendant-Appellant: Attorney Shirley Smith, Poland, OH.

Judges: Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite. Vukovich, P.J., concurs. Waite, J., concurs.

Opinion by: Mary DeGenaro

DeGenaro, J.

[*P1] This timely appeal comes for consideration upon the record in the trial court, Appellant’s brief and oral argument before this court. Appellant Joseph S. Finocchi appeals the October 1, 2008 decision of the Mahoning County Court of Common Pleas, Domestic Relations Division, which found that there was not a change in circumstances among Joseph, Appellee, Angela M. Depascale, or their minor children that was sufficient enough to warrant a modification of the parties’ parental

rights and responsibilities. The trial court’s decision maintained the every-other-week parenting schedule from the 2005 Shared Parenting Plan, but made several modifications to the plan, including designating Joseph as the residential parent for medical and school purposes.

[*P2] Joseph argues that the trial court’s finding of no change in circumstances [**2] was against the manifest weight of the evidence. Joseph further argues that the trial court abused its discretion by maintaining equal parenting time in the Shared Parenting Plan, and by deciding that the modified Plan was in the best interest of the children without support from the record. Finally, Joseph argues that the trial court committed multiple errors in its calculation of child support.

[*P3] In general, the overall detail of the trial court’s entry, including its lengthy findings of fact, support its conclusions. It is true that there are a variety of negative circumstances affecting the parties, primarily due to the parents’ ongoing animosity and inability to communicate or cooperate. However, these circumstances existed at the time of the original 2005 decision, and the trial court found Angela and Joseph’s claims of extreme conflict to be exaggerated and lacking in credibility. Although it is a close issue as to whether the ongoing and perhaps worsening conflict between the parents constituted a change in circumstances, the trial court did not abuse its discretion by not reallocating the parties’ parental rights and responsibilities. As for the Shared Parenting Plan, it appears [**3] that the testimony of several witnesses could have supported a decision to give more parenting time to Joseph, but such a decision would have to be made through a reallocation of parental rights and responsibilities, not through a modification of the terms of a shared parenting agreement. Finally, Joseph’s objections to the trial court’s child support calculations were not raised in the trial court, and thus have been waived on appeal. Moreover, the trial court’s considerations of the parties’ incomes and its decision not to implement a downward deviation from the standard child support calculation did not involve an abuse of discretion. Accordingly, the judgment of the trial court is affirmed.

Facts and Procedural History

[*P4] Joseph and Angela were married on April 4, 1998, when the parties were 32 and 20 years old, respectively. The parties’ have two children, Dominic, born on June 5, 1999 and Anna, born on April 30, 2001.

[*P5] The parents were separated around March of 2005. Both parents filed complaints for divorce seeking custody of the children, and the trial court consolidated the cases. According to an August 29, 2005 Magistrate’s Order, the parties contested which parent should determine

[**4] where the son went to school, and Angela cited various incidents where Joseph untimely delivered the children for parenting time. The magistrate decided that the son should attend Angela’s local school. Both parties filed motions to set aside the decision.

[*P6] Joseph proposed a Shared Parenting Plan wherein the children would spend each weekday evening and night with Joseph, each weekday morning and afternoon with Angela, with each parent caring for the children every-other weekend. Angela proposed a Shared Parenting Plan wherein the children would reside with each parent for a full week, every other week, with exchanges on Sundays.

[*P7] The matter proceeded to trial on December 12, 13, 15, 16, 20, 21, and 22, 2005. The parties subsequently agreed to a Shared Parenting Plan, which largely followed Angela’s suggested plan. The trial court’s December 27, 2005 decision granted the divorce and incorporated the Shared Parenting Plan. The decision obligated Joseph to pay spousal support until June 30, 2008, and $ 794.64 per month in child support (including poundage). The Shared Parenting Plan provided an equal allocation of parental rights and responsibilities, with the children residing with each [**5] parent on alternating weeks, with exchanges on Sundays. The Shared Parenting Plan noted that no deviation from the standard child support amount was warranted due to the disparity in the parties’ incomes.

[*P8] In early 2007, the parties filed competing motions to find the other in contempt, to modify allocation of parental rights and responsibilities to be named sole residential parent, and requesting that the Shared Parenting Plan be terminated. Joseph alternatively requested to be named the residential parent for school and medical purposes, as well as seeking a decrease in child support.

[*P9] The trial court ultimately appointed Melissa Dinsio GAL on July 19, 2007 and Timothy Khol as a psychological examiner on January 3, 2008.

[*P10] On March 21, 2008, subsequent to a hearing on Joseph’s motion to modify child support based on changes in income, the trial court lowered Joseph’s monthly child support obligation to $ 547.66 (including poundage), and noted that the amount would be recalculated upon the July 1, 2008 termination of spousal support. The worksheet continued to check ²mother² as the residential parent and legal guardian, despite the shared custody arrangement.

[*P11] On June 4, 2008 Angela filed [**6] another motion to show cause, alleging that Joseph repeatedly violated the court-ordered Sunday 6:00 p.m. exchange time for the children. The issues in the parties’ various motions proceeded to trial on June 17, 18, 25, and July 21,

2008.

[*P12] On the first day of trial, the parties presented testimony only related to the parents’ contempt motions. The second day of trial began with Joseph, who testified as to his employment, living situation, parenting style, and the background of the 2005 divorce and shared-parenting plan. Joseph discussed his problems with Angela’s actions regarding the children’s medical issues, school issues, and the children’s sleeping arrangements. Joseph described the merits of his living environment, local school, and extracurricular activities he provides for the children. Joseph discussed the conflicts between the parents regarding the children’s schedules and their participation in extracurricular activities. Joseph described incidents that he believed indicated neglect or abuse of the children by Angela, and testified as to the involvement of Children Services. Joseph further described conflicts between the parents regarding exchanges of the children and extracurricular [**7] activities, and communication problems.

[*P13] Angela also testified as to her employment, living situation, parenting style, the activities available for the children in her community, and the children’s relationships with their extended family. Angela described the conflicts that have occurred between the parents around the children’s extracurricular activities. Angela described the merits of her local school, her relationships with the teachers, and the children’s rate of absenteeism when with Joseph. Angela described her actions regarding medical issues, the incidents that led Joseph to involve Children Services, and the conflicts between the parents regarding medical issues and exchanges of the children.

[*P14] The trial court additionally heard the testimony of Jennifer Carey, a school counselor who facilitates the children’s group sessions for students with divorced parents; Richard W. Lillo, a licensed professional clinical counselor who has provided counseling services for the children from 2005 to the present; John Robert Elko, Jr., Angela’s fiance; Maria Depascale, Angela’s mother; Timothy Khol, a licensed psychologist who testified regarding the psychological custody evaluation that [**8] he conducted with the parties; Anna Marie Beres, a neighborhood friend of Joseph; and Melissa D. Dinsio, the Guardian ad Litem for the children.

[*P15] On August 15, 2008 the trial court issued an interim order, determining that the Shared Parenting Plan should continue, and modifying the Plan to designate Joseph as the residential parent specifically regarding school and health issues, and changing the child-exchange time from Sundays at 6:00 p.m. to Wednesdays at 7:00

p.m. The order also suggested an alternative shared parenting schedule, and requested that the parties filed proposed shared parenting schedules. Angela filed a notice of appeal from this order, but her appeal was eventually

dismissed for lack of prosecution. Angela filed a renewed motion for contempt on August 19, 2008.

[*P16] On August 26, 2008, Joseph filed a memorandum on parenting time, requesting primary parenting time with a standard visitation order for Angela. Joseph alternatively requested the parenting schedule used prior to the divorce, wherein the children would stay with Joseph every night, with Angela during the afternoons after school, and with each parent on alternating weekends. Joseph also filed a motion for contempt, [**9] alleging that Angela violated the shared parenting order by failing to adequately provide for the children’s hygiene, feeding, and sleeping arrangements, and alleging that Angela has prohibited the children from calling Joseph on the telephone.

[*P17] On October 1, 2008, the trial court entered a Final Order of Modification of Shared Parenting Plan and Contempt. The trial court’s entry denied the parties’ original motions to show cause, denied Joseph’s August 26, 2008 motion to show cause, but granted Angela’s August 19, 2008 motion, and found Joseph in contempt for his repeated failure to follow the parenting schedule. The trial court sentenced Joseph to three days in jail, to be purged conditioned on father’s cooperation with the amended shared parenting orders.

[*P18] The trial court held that the facts presented by the parties did not sufficiently indicate a change in circumstances, and declined to reallocate parental rights and responsibilities or terminate the Shared-Parenting Plan. The trial court ordered that the Shared Parenting Plan continue on a weekly basis, with exchanges on Wednesdays around the children’s school schedule, and on Wednesdays at 7:00 p.m. during the summer and eliminated [**10] midweek parenting time.

[*P19] Joseph was designated as the residential parent for medical decisions and school placement purposes. The trial court ordered that the children are not permitted to stay overnight at third-party residences on any school night. The trial court further ordered that the parents are to make prior agreements to the children’s extracurricular activities, and that one parent is to provide the transportation for their activities if the location is inconvenient to the other parent’s residence. The trial court modified the amount of child support in light of Angela’s change in income from the June 30, 2008 termination of spousal support. The trial court ordered that Joseph pay $ 685.53 per month for child support.

[*P20] After Joseph timely filed a notice of appeal, he moved for a stay of the appeal, representing the resolution of motions pending before the trial court could resolve the matter. We granted a stay until March 9, 2009. After several extensions sought by Joseph’s counsel to file both

the transcript and his brief, we granted Joseph leave to file his brief instanter September 25, 2009. After determining that Angela would not be filing a brief, the matter was set for [**11] oral argument on July 14, 2010. Accordingly, this court may consider Joseph’s statement of the facts and issues as correct and reverse the judgment if Joseph’s brief reasonably appears to sustain such action. App.R. 18(C).

Reallocation of Parental Rights and Responsibilities [*P21] In his first assignment of error, Joseph asserts:

[*P22] ²The trial court erred in finding no change in circumstances, as and against the manifest weight of the evidence, thereby failing to terminate the shared parenting plan and further failing to grant full legal custody to the defendant/father.²

[*P23] R.C. 3109.04(E)(1)(a) governs the modification of an existing decree allocating parental rights and responsibilities, and states, in pertinent part:

[*P24] HN1 ²The 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 [**12] 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:

[*P25] ²(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.

[*P26] ²(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.

[*P27] ²(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.²

[*P28] Thus, HN2 multiple steps must be satisfied in order for the trial court to reallocate parental rights in the context of a shared parenting agreement: (1) there must be an initial threshold showing of a change in circumstances of the child or either parent, brought about by facts that have changed since the date of the prior decree or which were unknown to the court at that time; and (2) if

circumstances have changed, the court may reallocate [**13] parental rights as necessitated by the best interests of the child. Id. ²The statute also requires the court to ’retain the residential parent designated by the prior decree’ unless (1) the ’modification is in the best interest of the child’ and (2) one of three additional factors applies. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007 Ohio 5589, at P21, 876 N.E.2d 546.

[*P29] HN3 The intent of R.C. 3109.04 is to spare children from a constant tug of war between parents who may file a motion to modify parental rights and responsibilities each time the parent without full custody thinks he or she could provide the children with a better environment. Id. at P34; Surgenavic v. Surgenavic, 7th Dist. No. 08 MA 29, 2009 Ohio 1028, at P14, citing Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 Ohio B. 479, 445 N.E.2d 1153. Even when both parents in a shared parenting agreement request a reallocation of parental rights and responsibilities, a change in circumstances still must be found before the trial court may grant either party’s request. See Fisher at P2, 37.

[*P30] HN4 A trial court has broad discretion in its determination of parental custody rights. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Because

[**14] custody issues are some of the most difficult and agonizing decisions a trial judge must make, he or she must have wide latitude in considering all the evidence and such a decision must not be reversed absent an abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997 Ohio 260, 674 N.E.2d 1159. Therefore, a trial court’s custody determination should not be disturbed unless it constitutes an abuse of discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178.

[*P33] HN6 In order for a trial court to make the threshold determination that there has been a change of circumstances, the movant need not prove that there had been a ²substantial² change in circumstances, but ²the change must be a change of substance, not a slight or inconsequential change.² Davis, supra, at 418. The phrase,

²change in circumstances,² is generally ²intended to denote an event occurrence, or situation which has had a material and adverse effect upon a child.² Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551. The trial court has the broad discretion to determine whether sufficient changed circumstances have occurred between the parents in order to proceed past this threshold question. Davis, at 418.

[*P34] HN7 ²Ohio courts have considered a variety of factors that are relevant to the change-in-circumstances requirement of R.C. 3109.04(E)(1)(a). For example, relevant factors presented [**16] in other cases have included ’a new marriage that creates hostility by the residential parent and spouse toward the nonresidential parent, frustrating attempts at visitation,’ Davis, 77 Ohio St.3d at 419, 674 N.E.2d 1159; the advancement of a child from infancy to adolescence, Perz v. Perz (1993), 85 Ohio App.3d 374, 377, 619 N.E.2d 1094; unruly behavior of the residential parent involving the police, Butler v. Butler (1995), 107 Ohio App.3d 633, 669 N.E.2d 291; and fights between the residential parent and a new spouse that required police intervention, along with the fact that the residential parent had moved six times in two years, Dedic v. Dedic (Jan. 27, 1999), Wayne App. No. 98CA0008, 1999 Ohio App. LEXIS 159, 1999 WL 33445.² In re Brayden James, 113 Ohio St.3d 420, 2007 Ohio 2335, at P18, 866 N.E.2d 467.

[*P31] With respect to this Court’s duty of deference to the trial court in custody determinations, the Ohio Supreme Court has stated: HN5 ²The discretion which a trial court enjoys in custody matters should be accorded 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. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court’s findings were indeed correct.² Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. (Internal citations omitted.)

[*P32] [**15] After making extensive findings of fact, the trial court stated in its conclusions of law, that there was no change of circumstances to warrant a reallocation of parental rights and responsibilities, and did not continue on to analyze the children’s best interests or other factors.

[*P35] In this court’s recent history, we have found that HN8 a combination of factors must be considered to amount to a change in circumstances. See, e.g., Gomez v. Gomez, 7th Dist. No. 08 NO 356, 2009 Ohio 4809; Burnip v. Nickerson, 7th Dist. No. 07-CO-42, 2008 Ohio 5052.

[*P36] In Gomez, both parties had remarried, the mother had changed residences, there were many examples of increased hostility between the father [**17] and the new step-father, both parties were repeatedly untimely for exchanges, the mother had been found in contempt, the mother attempted to block the father from receiving medical information about the children, the mother prevented the father from having three of his five weeks of summer visitation, police intervention was repeatedly sought, and Children Services was contacted regarding child abuse allegations. Gomez at P23-33. We held that the combination of these events constituted a change in circumstances, and concluded that the trial court abused its discretion in not making such a finding. Id. at P34.

[*P37] In Burnip, the mother alleged a change in circumstances because the father kept the children in daycare or under the care of the paternal grandparents most of the time, the father smoked around the children and did not adequately care for their clothing, hygiene or the home, the father failed to attend the children’s school activities, and inadequately cared for the daughter’s medical issues. Burnip at P3, 23, 26-37. This court noted that many of the mother’s complaints were of circumstances that existed prior to the parties’ dissolution, and that other witness testimony rebutted [**18] some of the mother’s other claims. Id. at P40-41. This court concluded that the trial court did not abuse its discretion in finding that a change of circumstances had not occurred between the parties. Id. at P42.

[*P38] The variety of factors in the above cases demonstrates that HN9 the presence of any one factor alone will not dictate whether there has been a change of circumstances between the parties. The specific and unique circumstances of the parties will always frame the issue, and the occurrence of certain events may or may not constitute a change in circumstances depending on the context in which they occurred, and depending on the surrounding totality of the circumstances.

[*P39] Here, Joseph points out a number of factors that he argues support a finding of a change in circumstances. It is difficult to examine whether there has been a change in circumstances in this case because the circumstances of the parties at the time of the 2005 Shared Parenting Plan are largely not in the record. In the more recent proceedings, Joseph not only had the burden of proving the negative circumstances of the parties, but also had the burden of proving that those circumstances were different enough and not [**19] contemplated by the trial court at the time of the 2005 proceedings to warrant a finding of changed circumstances in 2008. In view of this problem, the trial court noted during the proceedings that it did not have the prior history of the case, and asked that the parties provide background information.

[*P40] Although the parties did not supply the transcripts for the proceedings that led up to their divorce and original Shared Parenting Plan in 2005, the transcript of an August 26, 2005 hearing regarding school attendance of the children was included in the record. During that hearing, it was mentioned that Angela worked part-time at the time of the divorce, that Angela’s work interfered with her ability to be with the children at pertinent times, such as exchange times or school pickup times, necessitating Depascale’s constant assistance, and that Joseph had issues with ²some of the things he thought was [sic] occurring at mom’s house, * * * some issues with sleeping arrangements, alleged boyfriend here [sic] and also some report of so-called living conditions at the grandmother’s house

where * * * they were residing at one point.² The parents were already experiencing conflict and problems [**20] regarding the exchanges of the children. At that 2005 hearing, the trial court stated that the parents were not cooperating and ²aren’t communicating at best.² Though limited, this information provides a larger context for Joseph’s current claims, and demonstrates that many of the new circumstances described by Joseph existed prior to the 2005 decree, as was the case for many of the claims in Burnip.

[*P41] As for Joseph’s first argument, he asserts that there has been a change in circumstances and a failure of the Shared Parenting Plan because Angela has the children sleeping in multiple residences each week, often on the floor. Joseph also points out that these sleeping arrangements are caused by Angela’s part-time job, which sometimes requires her to leave the home before dawn.

[*P42] At trial, both parties testified that Angela keeps the children overnight at Depascale’s residence approximately two times per week due to Angela’s work schedule. Depascale testified that the children used to sleep on a mattress on the floor at her house, but noted that she had purchased an additional bed shortly before the time of trial, so that the children would no longer have to sleep on the floor. Lillo, the [**21] family counselor, testified that Joseph brought the children to counseling around July of 2005, and voiced concerns at that time regarding ²living conditions at the mom’s and the grandmother’s house.² Lillo stated that Joseph raised issues during the beginning of counseling regarding the children’s sleeping arrangements, staying with Depascale, and sleeping on the floor.

[*P43] Lillo’s testimony indicates that Joseph’s concerns were voiced before the 2005 Shared Parenting Plan, and this particular argument thus does not involve ²facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree.² R.C. 3109.04(E)(1)(a). See, also, Burnip, at P40. Moreover, the trial court’s decision indicates that it did take the objectionable sleeping arrangements into account. The trial court considered this issue to be related more to the terms of the Shared Parenting Plan than custody, and specifically included instructions in the Amended Shared Parenting Plan that the parties are not permitted to keep the children at a third-party’s home on any school night. Instead, the Plan instructs: ²If either parent is gone overnight during a school weeknight, the other [**22] parent shall have the children.²

[*P44] Joseph also argues that a change of circumstances occurred due to the fact that Depascale moved to a residence further away from Angela’s residence. According to testimony during trial, Depascale lived in the

same apartment building, across the hall from Angela, until approximately October of 2007. Depascale then moved to a residence that is a two or three minute drive from Angela’s residence. Joseph argues that this change is significant, as Depascale provides extensive support and assistance to Angela. Although Depascale’s distance of one or two miles would not be much of an obstruction of Angela’s access to Depascale, it could be seen as a big change given that Angela possibly had immediate access to Depascale at most times in the previous living arrangement. Given that all parties consistently testified that Depascale is the primary person in Angela’s support network, Depascale’s location could be a significant factor. However, there was no indication during trial that Angela’s reliance on Depascale, or the children’s time spent with Depascale, either increased or decreased due to the move. Although Depascale’s move was a change, there is no testimony [**23] indicating how such a change impacted Angela or the children.

[*P45] Next, Joseph asserts that there has been a change of circumstances warranting a modification of custody because Angela has potentially subjected the children to neglect and abuse. Specifically, Joseph points out that upon his instigation Lillo made reports to the Children Services Board as required by statute on two separate occasions in 2006, once regarding concerns of nutrition and hygiene and once due to a report that Elko and Angela exposed themselves to the children. The record indicates that these two reports, as well as a third report predating the 2005 decree, were made at Joseph’s instigation.

[*P46] In a June 29, 2005 police report, Joseph claimed that the children stated that Elko hit them in the neck. According to Joseph, only he spoke to the police, the children were not interviewed, and no one could locate any signs of injury on the children. Children Services sent a letter on June 30, 2005 stating ²Referral rejected. Referral does not meet criteria for Children Services involvement.² This instance was not thoroughly addressed in testimony, as it predated the December 2005 decree.

[*P47] On February 24, 2006, a claim of [**24] medical neglect was made. In a letter dated March 17, 2006, Children Services stated that its case disposition was unsubstantiated. According to a letter written by Lillo, Children Services contacted Lillo on March 17, 2006 and requested information regarding the children, presumably regarding this claim. Lillo responded on April 11, 2006, and noted that there were some issues reported to him by Joseph regarding the children’s nutrition and hygiene, such as the children being given licorice and cereal as a meal, the children complaining of being hungry, and stating that they were not bathed on a daily basis. Lillo testified that Angela’s feeding of the children was an original concern when the children were brought to him,

but noted that the nutritional issue ²has not been brought up in a while.²

[*P48] On July 26, 2006, Joseph and then the children reported to Lillo that Angela and Elko were committing inappropriate behavior, described by Lillo as ²wiggling their butts or pulling their pants down and various things and maybe showing of a private part.² Lillo made a report to Children Services. In a letter to Angela dated August 9, 2006, Children Services reported: ²Based upon our findings: [**25] The case will be closed. Suggested follow up services: Find a counselor for the children that you and your exhusband can agree upon. Use the court as needed to mediate.² Elko denied exposing himself or otherwise acting inappropriately in front of the children. Dinsio testified that when she asked the son about his report of Angela and Elko exposing themselves, the son told Dinsio that the incident did not actually happen, and refused to speak further on the subject. When Dinsio asked the daughter about the incident, the daughter told Dinsio that the son had reported the exposure incident because

²he thought it would make daddy happy.²

[*P49] Although all of Joseph’s reports of abuse were summarily closed or found to be unsubstantiated, they could support a finding of a change in circumstances. Repeated reports of child abuse could indicate new problems, either of the parent being reported or of the parent making the report of abuse. For example, in Gomez, this court found reports to Children Services to be significant, regardless of the fact that they were unsubstantiated. Gomez at P33. However, the unsubstantiated reports of child abuse in Gomez were accompanied by a variety of other factors [**26] further indicating a change in circumstances in order for this court to conclude that the trial court’s decision was an abuse of discretion. Moreover, this case is somewhat distinguishable from Gomez and more aligned with Burnip in that Joseph’s unsubstantiated reports of abuse or neglect occurred both before and after the 2005 decree.

[*P50] Next, Joseph argues that a change in circumstances has occurred due to Angela’s deviation from the Shared Parenting Plan, specifically through her inadequacies related to school, medical concerns, and the children’s extracurricular activities. The parties’ testimony was extensive and widely divergent on this topic, and inspired commentary from the trial court as to the questionable credibility of both parents.

[*P51] Joseph provided various examples where he believed that Angela either overreacted or underreacted to the children’s health issues or illnesses, and opined that Angela cannot recognize what proper medical care is. Witnesses such as Khol and the GAL opined that Angela generally acted appropriately in response to the children’s

health issues. Khol noted that the children were appropriately medically cared for by both parents, that the parties had [**27] different parenting styles, and that the main problem on this topic was the conflict between the parents.

[*P52] Joseph raised additional concerns at trial that Angela attempted to keep Joseph from receiving medical information regarding the children, either by failing to inform Joseph of visits to the doctor, or by specifically instructing medical providers to contact her and to not contact Joseph. Angela conceded that she had sometimes told medical providers to communicate primarily through her in order to avoid conflict, but denied disallowing medical providers to contact Joseph. Angela testified about a more recent incident where the son was ill, Joseph did not inform her of the condition or his visit to the hospital, and Angela was denied access to the son’s information at the hospital.

[*P53] As for the school issue, Joseph testified to several incidents where Angela failed to update contact information, and failed to adequately prepare the children for school, in terms of vaccinations and registration, risking their suspension from school. Joseph testified that Angela did not ensure that the children had money for school lunches, which again required that Joseph take action to resolve the [**28] situation. Joseph also alleged that the children’s scholastic performance deteriorates whenever they are with Angela. Angela countered that she actively encourages the children’s scholastic efforts, and has worked with teachers who have recommended additional educational programs for the son. Angela testified that the children’s absences from school during the last school year were primarily during Joseph’s parenting time, with 13 of the daughter’s 15 absences and

13 of the son’s 17.5 days of absence occurring with Joseph.

[*P54] Each party accused the other of refusing to allow the children to participate in extracurricular activities that the other parent had set up. Both parties accused the other of not providing them with information about the activities, and conversely denied claims that they had in fact been offered information about the activities and nonetheless refused. Angela’s testimony indicated that she will not take the children to Joseph’s soccer league due to distance, scheduling conflicts, and because Joseph publicly berated her when she did take the children to the soccer league. Angela alleged that Joseph will not take the children to Angela’s activities because he had [**29] not been consulted first, or otherwise did not approve of them. Dinsio noted that both parties supported the idea of the children participating in a variety of extracurricular activities, but ²are both probably a little control hungry in that situation.² The trial court noted, ²I am holding you

both accountable for the fact that you are acting like children. In whatever you do, she doesn’t participate. In whatever she does, you don’t participate in.²

[*P55] As with the sleeping arrangements, the parents’ communication and cooperation surrounding education, activities and medical issues was an issue that was raised and known to the court at the time of the 2005 decree. For example, Joseph testified that he had requested certain terms in the 2005 Shared Parenting Plan due to ²The past history of the medical care that would not be provided to the children for those exact same reasons; incorrect information, not following the physician’s instructions, not keeping scheduled appointments. * * *. What prompted me to write that into the decree was I did not want past history to repeat itself.² And again, as with the children’s sleeping arrangements, the trial court considered this issue to relate [**30] more to the Shared Parenting Plan than to custody, and modified the Shared Parenting Plan so that Joseph would be the primary contact and have the primary responsibility in making all decisions regarding the children’s school and medical needs.

[*P56] Next, Joseph argues that a change in circumstances occurred due to further deterioration of communication between the parties, and due to Angela’s alienation of the children from Joseph. Regarding the alienation issue, Lillo testified that the children reported to him that Angela removes Joseph’s name from children’s drawings. Angela testified that Joseph has frequently been argumentative and derogatory toward her in front of the children, again both before and after the 2005 decree. Khol testified that the children reported ²that they often hear their dad making derogative statements to mother and about mother, such as about her mental health, about being crazy, mixed up in the head, this sort of thing.² Khol opined that Joseph has an ²inability to communicate respect and acceptance of their mother.²

[*P57] Both parties testified to repeated instances of breakdowns in communication. Angela testified that she tries to communicate with Joseph but ²it’s [**31] just impossible to try to [communicate] with him. It’s either his way or no way.² Joseph testified that he cannot communicate with Angela because she ²freak[s] out² and attempts to contact him too frequently through his work phone and email. Joseph did concede that his only email address was through work. Angela testified that she sends Joseph information via certified letters because he otherwise refuses to engage with her. The court noted the inability to communicate was mutual. Khol opined that the main obstacle to the Shared Parenting Plan was the parties’ inability to coordinate or communicate, and concluded that one parent should have custody of the children because he did not believe that ²this is a couple that can handle shared parenting.²

[*P58] In addition to the contact with Children Services, both parties have contacted the police numerous times over disagreements, or when the other parent is late in arriving to exchange the children. Joseph and the maternal grandmother have also repeatedly called or threatened to call the police to eject each other from their property during exchanges of the children.

[*P59] Both Joseph and Angela filed contempt motions for failure to comply with exchange [**32] times, which the trial court initially denied. Subsequent to the June 2008 hearings, both parties filed renewed contempt motions, and the trial court found Joseph in contempt for his repeated failure to follow the parties’ parenting schedule. Angela suggested that the parties change the exchange time to Wednesdays after school to alleviate timing issues. Joseph refused to suggest a different child-exchange time or any other changes, stating that it will not work no matter what changes they make.

[*P60] Again, within the context of the parties’ entire relationship, Joseph only established that the parties continue to have a terrible relationship, and failed to establish that the relationship deteriorated or changed since the 2005 decree. It does seem that the conflict between the parties, regardless of whether it constitutes a marked change from prior years, generally indicates that the terms of the Shared Parenting Plan is not working. However, the trial court addressed this problem through a modification of the terms of the Shared Parenting Plan.

[*P61] Finally, Joseph argues that there has been a change in circumstances because a Psychological Custody Evaluation indicated that Angela has certain [**33] intellectual and emotional deficiencies, and that the children have a primary emotional attachment to Joseph. Khol performed a Psychological Custody Evaluation of Angela, Joseph, and the children. Khol found both parents to have various negative aspects to their personalities. Khol found that the children were well-adjusted, ²strikingly well-behaved,² and had a close affectionate bond with one another, possibly compensating for the conflict between the parents. Khol testified that the children expressed a primary attachment with Joseph.

[*P62] Khol’s evaluation reported how each party functioned on a general level, and did not indicate that the parties’ psychological functioning or intelligence affected the circumstances of the parties differently since the 2005 judgment. Thus this factor does not affect the trial court’s consideration of a change in circumstances.

[*P63] Looking at all of the factors enumerated by Joseph, he has presented a problem of overall friction, hostility and lack of communication between the parents, which certainly is not a situation that promotes the best

interests of the children. As noted by the Second District, an ongoing war between bitter divorced parents, such as [**34] the war apparently going on here, has ²no victors and the ultimate casualties are the children, who stand to suffer deeply and permanently unless their parents can learn to control their hostility and anger towards each other.² Buckingham v. Buckingham, 2d Dist. No. 1626, 2004 Ohio 1942, at P3.

[*P64] These are unfortunate circumstances, but Joseph’s arguments do not indicate a change in circumstances. Joseph’s arguments regarding the children’s sleeping arrangements, Angela’s reliance on the grandmother for child care and support, the conflicts created by Angela’s work schedule, and lack of communication and cooperation between the parties in medical, school, and all other situations were all circumstances that existed prior to and at the time of the 2005 decree and Shared Parenting Plan. Additionally, the trial court repeatedly communicated its belief that the parties’ depiction of their mutual conflict was exaggerated to a certain extent and thus unreliable.

[*P65] Because of this, and because the trial court found both parents provided a loving and supportive environment for their children, it was reasonable for the trial court to conclude that the allocation of parental rights and responsibilities [**35] should not be changed, and that instead certain terms of the Shared Parenting Plan should be changed to address the parents’ concerns, especially since this was the first time that the trial court was asked to review the original 2005 decree, and a less disruptive change seems reasonable.

[*P66] The trial court’s decision was well-reasoned, thorough, and based upon the evidence. Thus the trial court did not commit an abuse of discretion by concluding that the circumstances presented by the parties did not constitute a change in circumstances for the purposes of R.C. 3109.04(E)(1)(a). Because the trial court did not commit reversible error regarding this threshold issue, the trial court was not obligated to consider whether a particular reallocation of parental rights and responsibilities was in the best interest of the children. We therefore will not address the second portion of Joseph’s assignment of error regarding the best interest of the children. Accordingly, Joseph’s first assignment of error is meritless.

Shared Parenting Plan

[*P67] In his second assignment of error, Joseph asserts:

[*P68] ²The trial court further abused its discretion in determining that the shared parenting plan remains in the [**36] best interest of the children and that plaintiff/

mother should receive equal parenting time despite a clear showing to the contrary under statutory factors.²

[*P69] Joseph asserts that the trial court abused its discretion in finding that its modification of the Shared Parenting Plan was sufficient to protect the best interests of the children. The trial court exercised its discretion to modify the Shared Parenting Plan pursuant to R.C. 3109.04(E)(2)(b), which states:

[*P70] HN10 ²The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it 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 any modification to the plan under this division, unless the modification is in the best interest of the children.²

[*P71] HN11 Although R.C. 3109.04(E)(1)(a) requires a change in circumstances in order to modify a prior allocation of parental rights and responsibilities, R.C. 3109.04(E)(2)(b) only requires a consideration of the [**37] best interest of the children and does not require a finding of a change in circumstances in order to modify the terms of a shared parenting plan. The terms of a shared parenting plan govern the way in which the parents’ respective rights and responsibilities are carried out. Fisher, supra, at P30. The terms include things such as

²the child’s living arrangements, medical care, and school placement.² Id. See, also, R.C. 3109.04(G). A modification that changes the allocation of parental rights and responsibilities cannot be executed through the terms of a shared parenting agreement, and requires a change in circumstances pursuant to R.C. 3109.04(E)(1)(a). Fisher at P22-25.

[*P72] The trial court’s findings of fact addressed the many conflicts between the parents, which primarily arose during the exchanges of the children, decisions on medical and school issues. Upon a thorough consideration of the best interest of the children, the trial court modified some terms of the parties’ Shared Parenting Plan by changing the exchange date from Sunday to Wednesday, eliminating the mid-week parenting time, and designating Joseph as the residential parent for school and health decisions. The trial court’s [**38] modification reduced the chance of either parent being untimely for the exchange, reduced the interaction between the parents in the presence of the children, and eliminated power struggles over medical and school decisions.

[*P73] Joseph asserts that the amended Shared Parenting Plan fashioned by the trial court constituted an abuse of

discretion, but fails to articulate what modification by the trial court would not have been an abuse of discretion. However, in the final conclusion of Joseph’s brief, Joseph requests that this court sustain his second assignment of error and cause the Shared Parenting Plan to be modified so that Angela receives the children every other weekend, with a mid-week visit, in accordance with a standard parenting time order. Joseph has attached an example parenting time schedule, pursuant to R.C. 3109.051, that he believes demonstrates the more appropriate parenting schedule in this case.

[*P74] HN12 A standard parenting time order in accordance with R.C. 3109.051 is only applicable in the event that there is no shared parenting agreement, and one parent is named the residential parent. R.C. 3109.051(A). The result that Joseph promotes in this assignment of error is identical [**39] to that which he promotes in the event of a reallocation of parental rights and responsibilities: full time residence with Joseph and visitation for Angela. Joseph is therefore repeating his argument for a reallocation of parental rights and responsibilities from his first assignment of error. As with the first assignment of error, Joseph’s argument here is meritless.

Child Support

[*P75] In his third assignment of error, Joseph asserts:

[*P76] ²The trial court erred in its calculation of child support.²

[*P77] Joseph contends that the trial court incorrectly completed the Ohio Child Support Worksheet that accompanied the trial court’s final order. Specifically, Joseph argues that the trial court erroneously indicated in the worksheet heading that only Angela was designated as the residential parent and legal guardian, failed to subtract

²Deviation shared² for Joseph’s 50% shared parenting

time, and failed to consider Angela’s increased income based on her change in employment. Joseph thus does not object to the trial court’s decision to modify child support, and only objects to the trial court’s calculation of the resulting modified child support amount.

[*P78] Joseph has waived this issue for purposes of appeal. [**40] HN13 It is axiomatic that a reviewing court will not consider any error that a party failed to bring to the trial court’s attention at a time when that alleged error could have been addressed by the trial court. See, e.g., Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009 Ohio 3626, at P34, 912 N.E.2d 595.

[*P79] [**41] The trial court modified child support in its October 1, 2008 order sua sponte in accordance with the March 21, 2008 order that child support was to be

ANGELA M. DEPASCALE, PLAINTIFF-APPELLEE,

-vs- JOSEPH S. FINOCCHI, DEFENDANT-APPELLANT.

Prior History: [**1] CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Domestic Relations Division, Case No. 05 DR 298.

Disposition: Affirmed.

Outcome

The judgment was affirmed.

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HN1 See R.C. 3109.04(E)(1)(a).