Appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2004DR01383
For Plaintiff-Appellant: PAMELLA A. LAMMON
For Defendant-Appellee: JENNIFER LOWRY-JUERGENSEN
Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
(¶1} Plaintiff-Appellant Leesa Lloyd Wright appeals the November 14, 2012 judgment entry of the Stark County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
(¶2} On June 22, 2005, Plaintiff-Appellant Leesa Lloyd Wright ("Mother") and Defendant-Appellee Steven Wright ("Father") were granted a divorce. The final decree incorporated the parties' separation agreement wherein the parties agreed to a shared parenting plan regarding their child, E.W., born as issue of the marriage on July 31, 2002. Mother was designated the residential parent and legal custodian.
(¶3} On January 8, 2009, the parties entered into another shared parenting agreement wherein Father was designated the residential parent for school placement purposes and medical decisions.
(¶4} In September 2009, Mother and Father filed separate motions for the reallocation of parental rights and responsibilities. Hearings were held before the magistrate. By decision filed August 3, 2010, the magistrate terminated the shared parenting plan, designated Father as the residential parent and legal custodian, and ordered Mother to pay child support in the amount of $50.00 per month. Mother filed objections. A hearing was held on March 30, 2011. By judgment entry filed April 18, 2011, the trial court ordered a limited remand to address the issues of child support, health care, and the allocation of the dependency exemption. After a hearing, the magistrate issued a decision on those issues on May 5, 2011. The trial court overruled Mother's objections, approved, and adopted the magistrate's decision on May 9, 2011. The trial court filed findings of fact and conclusions of law and issued a final order on May 16, 2011.
(¶5} Mother filed an appeal of the May 16, 2011 judgment entry with this Court. Mother filed a motion to stay judgment, which the trial court denied on June 13, 2011. In Wright v. Wright, 5th Dist. Stark No. 2011CA00129, 2012-Ohio-1560 ("Wright I"), we reversed the decision of the trial court and remanded the matter for further consideration. We found the trial court was precluded from terminating a shared parenting plan and designating Father as the residential parent and legal custodian without first making a determination that a change in circumstances had occurred, as well as a finding that a modification was in the best interest of the child.
(¶6} Upon remand, the trial court reappointed the Guardian ad Litem to update his report because of the passage of time. The Guardian ad Litem recommended the trial court terminate the shared parenting plan and award custody to Father. The trial court held a limited evidentiary hearing on October 11, 2012. The trial court held an in camera interview with E.W.
(¶7} On November 4, 2012, the trial court issued its Findings of Fact and Conclusions of Law and judgment entry. The trial court based its decision on the evidence adduced at the first trial and second trial. The trial court found five changes in circumstances had occurred since January 2009: (1) the parents acknowledged the shared parenting plan was not working; (2) Mother stopped using the computer program, "Our Family Wizard, " to communicate with Father as to E.W.; (3) When E.W. entered first grade in August 2009, Mother created conflict with the school that could negatively impact E.W.'s education; (4) Mother failed to comply with the parenting time provisions of the shared parenting plan; and (5) Mother changed E.W.'s name in Summit County Probate Court without the Father's knowledge. The trial court next found it was within the child's best interest that it terminate the shared parenting plan and name Father as the residential parent and legal custodian.
(¶8} It is from this decision Mother now appeals.
ASSIGNMENTS OF ERROR
(¶9} Mother raises five Assignments of Error:
(¶10} "I. THE TRIAL COURTS [SIC] DETERMINATION THAT A 'CHANGE IN CIRCUMSTANCES' HAS OCCURRED SINCE THE PARTIES WERE LAST IN COURT, AS WELL AS FINDING THAT THE MODIFICATION IS IN THE BEST INTEREST OF THE CHILD, PURSUANT TO R.C. 3109.04(E)(1)(a) WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURTS' [SIC] DECISION IS NOT REFLECTED IN THE TRANSCRIPT.
(¶11} "II. THE TRIAL COURT ABUSED ITS' [SIC] DISCRETION WHEN IT PROCEEDED WITHOUT REMOVING AND REPLACING THE GUARDIAN AD LITEM, IF THE GUARDIAN AD LITEM DID NOT COMPLY WITH THE MINIMUM STANDARDS OF PRACTICE, AS SET FORTH IN RULE 48 OF THE RULES OF SUPERINTENDENCE. MUST THE GUARDIAN AD LITEM INFORM THE COURT WHEN THERE IS A CONFLICT OF INTEREST BETWEEN WHAT A COMPETENT CHILD DESIRES AND THE GUARDIAN AD LITEM'S RECOMMENDATION? THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.
(¶12} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISREGARDED THE CHILD'S DESIRE TO LIVE WITH HIS MOTHER AND FAILED TO APPOINT SEPARATE COUNSEL FOR THE CHILD, WHEN THE CHILD'S WISHES ARE IN CONFLICT WITH THE GUARDIAN AD LITEM'S RECOMMENDATION. THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.
(¶13} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AFFIRMED THE MAGISTRATE'S DECISION OF 8/3/2010, WHICH WAS BASED LARGELY UPON THE GUARDIAN AD LITEM'S REPORT OF 1/13/2010, WHICH WAS IN TURN LARGELY BASED UPON INADMISSIBLE HEARSAY FROM A 2006 PSYCHOLOGICAL REPORT BY DR. TULLY. JUDGE JAMES INDICATES IN HIS 11/4/2012 JUDGMENT ENTRY THAT THIS REPORT SHOULD BE DISREGARD [SIC], HOWEVER IT IS CLEAR THAT THIS REPORT FORMED THE BASIS OF BOTH THE GUARDIAN AD LITEM'S MULTIPLE REPORTS OVER THE YEARS OF THIS CASE AND THE MAGISTRATE'S DECISION OF 8/3/2010. THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.
(¶14} "V. THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN IT TERMINATED THE SHARED PARENTING PLAN AND DESIGNATED THE DEFENDANT/APPELLEE THE RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE PARTIES' MINOR CHILD. THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT." ANALYSIS I., V.
(¶15} Mother argues in her first Assignment of Error the trial court abused its discretion in finding that a change of circumstances had occurred and it was in the best interests of the child to modify the custody arrangement. Mother argues in the fifth Assignment of Error the decision to terminate the shared parenting plan and name Father as the residential parent and legal custodian was against the manifest weight of the evidence. We consider the first and fifth Assignments of Error together because they are interrelated.
Standard of Review: Modification of Designation of Residential Parent and Legal Custodian
(¶16} A trial court enjoys broad discretion in custody proceedings. Cossin v. Holley, 5th Dist. Morrow No. 2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus. A trial court's decision to terminate a shared parenting plan is reviewed under an abuse of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio– 5812. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d 742, 1993–Ohio–9.
(¶17} R.C. 3109.04 governs modification of parental rights and responsibilities in a shared-parenting decree. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589, 876 N.E.2d 546, ¶ 11. Subsections (E)(2)(c) and (d) state: (c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.
(¶18} We held in Wright I that pursuant to Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, if there is a change in designation of residential parent and legal custodian of a child, the trial court is required to make a determination that a change in circumstances has occurred, as well as finding that a modification is in the best interest of ...