Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2006 JP 08620
Aaron L. Bensinger for Appellant
(¶1} Defendant-appellant James Vaske ("Vaske") brings this appeal from the judgment of the Court of Common Pleas of Allen County, Juvenile Division, denying his Motion for Reallocation of Parental Rights and Responsibilities, Shared Parenting Plan, and Modification of Support. For the reasons discussed below, the judgment is reversed.
(¶2} This appeal concerns custody of Keira Joy Grimes ("Keira"), a minor daughter of Vaske and Plaintiff-appellant Haleigh Lynn Grimes ("Grimes"), born in March of 2006. The parties were not married. On August 2, 2006, the Juvenile Division of the Court of Common Pleas of Allen County, Ohio, entered an Agreed Judgment Establishing Paternity, Child Support and Healthcare Insurance, in which Grimes was designated as the residential parent and legal custodian of Keira. (Agreed J. Entry at 2, Grimes v. Vaske, Allen C.P. No. 2006 JP 08620, Aug. 2, 2006.) The Judgment required Vaske to pay child support and entitled him to visitation rights pursuant to Rule 6 of the Local Rules of Court, which prescribes minimum parenting time and sets the parenting time schedule for the non-residential parent. (Id.)
(¶3} On February 15, 2012, Vaske filed his Motion for Reallocation of Parental Rights and Responsibilities, Shared Parenting Plan, and Modification of Support, stating that there had been a significant change in circumstances in that Keira was spending approximately 50% of the time with her father and she was no longer attending daycare. The magistrate of the trial court conducted a hearing on June 5, 2012, and based on the submitted evidence determined that there had been a change of circumstances warranting modification, a shared parenting plan was in the best interest of the minor child, and the benefits resulting from the shared parenting plan outweighed any harm associated with it.
(¶4} On July 24, 2012, Grimes objected to the magistrate's determination, arguing only that the shared parenting plan was not in Keira's best interest, but not challenging the magistrate's remaining findings. Then, on January 2, 2013, Grimes submitted her Motion to File Supplemental Objections Instanter, accompanied by the supplemental objections in which she argued, for the first time, that the magistrate's finding of a change in circumstances was improper. The trial court denied the motion to supplement, stating that it would "consider only the initial objection filed by the Plaintiff on July 24, 2012, and not the Supplement filed on January 2, 2013, " because the Supplement was untimely and there was no excusable neglect for the untimely filing. (J. Entry, Grimes v. Vaske, Allen C.P. No. 2006 JP 08620, at 1-2, Jan. 17, 2013.) Nevertheless, the trial court rejected the magistrate's finding that a change of circumstances had occurred, although this finding had not been timely challenged by the initial objections. While not addressing Grimes's actual objection regarding the shared parenting plan being in Keira's best interest, the trial court stated that "[Grimes's] objections to the decision of the magistrate are well taken, and [Vaske's motion] is found not to be well taken and the same is "DENIED." (Id.) Vaske appeals from this judgment raising the following assignment of error.
The Trial Court erred in determining there was not a change in circumstances to warrant a redetermination of parental rights and responsibilities pursuant to R.C. 3109.04(E)(1)(a), adoption of a shared parenting plan and modification of support.
(¶5} Grimes has not filed a brief in the instant appeal and she has not participated in the oral argument. Accordingly, pursuant to The Rules of Appellate Procedure, in determining this appeal, "the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." App.R. 18.
(¶6} The determination of whether a prior court order allocating parental rights and responsibilities should be modified is controlled by R.C. 3109.04(E)(1)(a), which provides:
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change ...