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In re S.R.L.

Court of Appeals of Ohio, Eighth District

July 25, 2013

IN RE: S.R.L. A Minor Child [Appeal By Vincent Yanak Father/Appellant]

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 07111635

ATTORNEYS FOR APPELLANT Michael J. O’Shea Ronald A. Annotico Lipson O’Shea Legal Group Beachcliff Market Square.

ATTORNEYS FOR APPELLEE Dominic M. Antonelli Kristen A. Crane Rieth, Antonelli & Raj.

BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

{¶1} Appellant-father Vincent Yanak ("Father") appeals the judgment of the Cuyahoga Common Pleas Court, Juvenile Division, that denied his motion to modify a shared parenting plan with appellee-mother Michelle Lupica ("Mother"). For the reasons that follow, we reverse and remand.

I.

{¶2} Yanak and Lupica, who never married, are the biological parents of S.R.L., who was born on December 16, 2005. In 2007, Father initiated paternity and parenting proceedings that resulted in a judicial finding that Father was the biological father and an agreed shared parenting plan that was journalized and made the order of the court on July 8, 2008, when S.R.L. was two years old.

{¶3} Pursuant to the shared parenting plan, Mother had parenting time in weeks one and three of each month from Monday afternoon until Friday at 5 p.m. and in weeks two and four from Tuesday afternoon through Friday at 5 p.m. Father had parenting time every weekend — in weeks one and three from Friday at 5 p.m. until Monday afternoon and in weeks two and four from Friday at 5 p.m. through Tuesday afternoon. Mother was designated as the residential parent for school purposes.

{¶4} On April 15, 2011, Father filed a motion to modify the shared parenting plan, alleging that there had been a change in circumstances that warranted a modification of the plan. The evidence at the trial on Father's motion demonstrated that Mother had moved six times since the shared parenting plan was ordered in 2008. She lived in an apartment in North Olmsted, an apartment in Olmsted Township, and then with her mother for approximately three months until her mother told her she did not want her living with her any longer. Father then allowed Mother, S.R.L., and Mother's other minor child to live with him for approximately six months (from August 2010 to April 2011). Father testified that he asked Mother to move out in April 2011, shortly before he filed the motion to modify, because she repeatedly came home intoxicated or not at all and because of her repeated "run-ins with the law." Mother then lived in Lakewood until June 2011, when she moved to a house in North Olmsted where she still resided at the time of trial.

{¶5} Father testified that he has lived in the same home in North Ridgeville for seven years. He has a salaried position as a manager of cargo services for United Airlines, working Monday through Friday. Although he often works the afternoon to midnight shift, his employer is flexible with his work schedule, which allows him to attend S.R.L.'s medical appointments and after-school activities. Father testified that he has a large extended family that regularly socializes together, and that S.R.L., who was six years old at the time of trial, has close relationships with his family, including a very special relationship with Father's mother. Father's sister testified that S.R.L. has a close relationship with her son, S.R.L.'s cousin.

{¶6} Mother is a bartender. She testified that she bartends at "Reggie's" on weekend nights from 7:30 p.m. to 3:30 a.m., and at "Aces" on Monday and Thursday evenings from 7:00 p.m. to midnight. Mother said that her 13-year-old daughter or a female friend watch S.R.L. when she is working. Mother also testified that she expects her 13-year-old daughter and S.R.L. to get themselves ready, make their lunches, and get to school on school mornings after she has worked because she is sleeping.

{¶7} Father testified that when Mother and S.R.L. were staying with him, Mother frequently abused alcohol. He said that she did not come home at night on five separate occasions and told him later that she was too intoxicated to come home. Several other times, Father had to pick Mother up from a bar and care for her at home because she was intoxicated. Father testified further that on several occasions, although according to the parenting plan it was Mother's day to parent S.R.L., Mother was not home and he could not locate her. Father testified that S.R.L. told him that after Mother had moved from Father's home, she and the 13-year-old were left alone all night while Mother was out.

{ΒΆ8} Mother admitted that she was cited on February 10, 2011, for serving alcohol to an underage minor while she was working. She also admitted that she was arrested for a second DUI in the city of North Ridgeville on July 11, 2010, while on her way home from work, and that she pleaded guilty to that DUI on January 11, 2011. Mother insisted, however, that she does not have a substance abuse problem and said that she stopped drinking after Father filed his motion to modify the shared parenting plan. She admitted, ...


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