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Palmer v. Palmer

Court of Appeals of Ohio, Seventh District

May 28, 2013


Civil Appeal from Common Pleas Court, Case No. 07 DR 125.

For Plaintiff-Appellee: Attorney Michael Shaheen.

For Defendant-Appellant: Attorney Elgin McArdle.

JUDGES: Hon. Mary, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite.


DeGenaro, P.J.

{¶1} Defendant-Appellant Dores Palmer appeals a February 2, 2012 decision of the Belmont County Court of Common Pleas, which, following an out-of-state relocation by Dores, granted Plaintiff-Appellee Robert Palmer's motion to terminate the parties' shared parenting plan, designated Robert the primary legal custodian and residential parent of the parties' minor child, and reallocated child support and parenting time accordingly. On appeal, Dores challenges only the parenting time component of the decision, alleging it was an abuse of discretion because it does not maximize her time with the minor child per the recommendation of the guardian ad litem.

{¶2} Dores' assignment of error is meritless. By arguing the trial court abused its discretion by adopting the magistrate's decision, Dores is, in essence making a manifest weight argument, which is impossible to properly evaluate in the absence of a complete transcript of proceedings to review. Dores has only provided this court with a partial transcript of the multi-day proceedings before the magistrate; specifically, only the testimony of the GAL. Moreover, it is unclear whether the trial court was provided a record of the proceedings before the magistrate when considering Dores' objections and an appellate court cannot consider evidence not considered by the trial court. Thus, in the absence of a complete record sufficient for appellate review, we must presume the regularity of the proceedings below. Accordingly, Dores' sole assignment of error is meritless and the judgment of the trial court is affirmed

Facts and Procedural History

{¶3} Robert and Dores married in 2002 and one child, N.P., was born as issue of the marriage on April 6, 2003. The parties divorced on February 11, 2008. Incorporated into the final divorce decree was a shared parenting plan, which provided that both parents "shall be equally responsible for the care, shelter, and control of N.S. and likewise, equally share all parental rights and responsibilities." Per the shared parenting plan, the parties were to split parenting time in a fairly equal manner.

{¶4} Following the divorce, the parties regularly deviated from the parenting time schedule as set forth in the shared parenting plan, in order to facilitate their respective work schedules. This was possible because following the divorce, as well as during the marriage, both parties lived in St. Clairsville, Ohio.

{¶5} During the spring of 2010, Robert became concerned that Dores might move out of state with the minor child. On May 5, 2010 he filed a three-branch motion requesting: (1) an ex parte order restricting both parties from removing the minor child from Belmont County for residence purposes, (2) an order modifying or abolishing the shared parenting plan, and (3) an order modifying child support accordingly.

{¶6} On May 19, 2011, Dores filed a two-branch motion agreeing to the ex parte order and seeking a modification of the shared parenting plan allowing her to move to Alliquippa, Pennsylvania with the minor child. She planned to move there to be with her fiancé. Alliquippa is approximately 68 miles away from St. Clairsville.

{¶7} Upon Robert's request, a guardian ad litem was appointed. During the pendency of the proceedings the GAL filed three separate, detailed reports. The matter first came for hearing on August 30, 2010. During that hearing, testimony was taken from the GAL and Robert, and was continued until October 7, 2010. It is unclear from the record whether further testimony was taken during that time; however, the parties ultimately reached an interim agreement wherein Robert was named the residential parent and Dores was granted parenting time pursuant to a detailed schedule outlined in the agreement, mainly on weekends and school holidays. Dores remarried in January 2011 and relocated to Alliquippa.

{¶8} The matter came for final hearing on July 13, 2011. Again it is unclear what testimony was taken during that hearing since no transcript was filed. Dores filed a "Proposed Allocation of Custodial Responsibility, " which included a proposed parenting time schedule for her in the event Robert was to be named the residential parent. Directly following that hearing, the magistrate issued a decision regarding parenting time for the remainder of the summer vacation. Pending a final ...

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