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Reese v. Whitsett

Court of Appeals of Ohio, Third District, Logan

May 15, 2017

SEAN P. REESE, PLAINTIFF-APPELLEE,
v.
KAITLYN JO WHITSETT, DEFENDANT-APPELLANT.

         Appeal from Logan County Common Pleas Court Juvenile Division Trial Court No. 14-AD-85

         Judgment Affirmed.

          Douglas B. Dougherty for Appellant.

          Jeffrey A. Merklin for Appellee.

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Kaitlyn Jo Whitsett nka Overmyer ("Kaitlyn"), appeals the October 19, 2016 judgment of the Logan County Court of Common Pleas, Juvenile Division, naming plaintiff-appellee, Sean P. Reese ("Sean"), the residential parent and legal custodian of the parties' minor child. On appeal, Kaitlyn argues that the trial court improperly considered certain factors relating to her lifestyle in making its determination that it is in their child's best interest to designate Sean the residential parent.

         Procedural History

         {¶2} On November 5, 2014, Sean filed a Complaint to Allocate Parental Rights and Responsibilities of the parties' child, H.R., who was born in 2013. Sean requested that the trial court designate him as the residential parent and legal custodian, or in the alternative, order a shared parenting plan be put into place. Sean also filed a motion for a temporary orders requesting that the trial court award him temporary custody of the child, or in the alternative, order shared parenting. Sean further sought the trial court to incorporate a temporary order "precluding [Kaitlyn] from taking the minor child out of the State of Ohio without a Court Order or Father's consent. Father has reason to believe Mother may be dating a person who lives in Ft. Wayne, Indiana." (Doc. No. 2). Kaitlyn filed an answer and counterclaim requesting that the trial court name her the "sole custodial and residential parent" of the parties' child and also requested temporary orders consistent with her counterclaim.

         {¶3} The matter was set for a hearing on temporary orders for February 9, 2015.

         {¶4} On January 21, 2015, Sean filed a Motion for Emergency Order of Temporary Custody requesting the trial court grant him immediate temporary custody of the parties' child. The motion stated that the "reason for this request is that Father has been told by Mother that she plans on permanently removing the child from the State of Ohio to Ashley, Indiana, presumably to live with her boyfriend as identified in his Motion for Temporary Orders, that she has obtained new employment in Indiana, and that if Father wanted to see his son he would have to drive to Van Wert, Ohio for pick up/delivery of the child. The effective date given to Father is January 26, 2015." (Doc. No. 20).

         {¶5} Kaitlyn filed a memorandum in opposition to Sean's Motion for Emergency Order of Temporary Custody claiming that she had been the primary caretaker of the child since his birth and that she was the sole provider for the child. She explained that she had obtained a better paying job in Indiana using her bachelor's degree which would give her and the parties' child more financial security. She further explained that she planned to give Sean visitation consistent with the local court rule. Therefore, Kaitlyn asked the trial court to deny Sean's Motion for Emergency Order of Temporary Custody.

         {¶6} On January 29, 2015, the trial court's magistrate conducted a hearing on Sean's Motion for Emergency Order of Temporary Custody. Both parties were present with counsel. The magistrate heard testimony from Sean and his parents and Kaitlyn and her mother.[1] The magistrate made the following factual determinations from the evidence presented at the hearing:

The parties are the parents of one minor child, namely [H.R.], born [September 2013]. Father filed the motion because Mother advised that she was planning to move to Ashley, Indiana with the parties' child. Mother in fact moved on January 23, 2015. She lives with her fiancé, whom she met approximately six months ago. Her fiancé has a daughter who is 3½ years old; he is the child's primary custodian. Mother moved to Ashley due to new employment in the area. She had been employed with the Logan County Sheriff's Office, but wanted to put her bachelor's degree in psychology to use. She had sought employment in central Ohio, without success. She secured a position as a transitional care coach in Indiana; Mother will be making approximately $3.00 more per hour in this job.
Father has had consistent, though limited, involvement in the child's life. Long work hours have, at times, limited Plaintiff's opportunities to be with the child. Currently, Father works a first shift, 40 hour per week job. Mother claims that Father has anger management issues.
Travel time between the parents' current residences is approximately two hours.

(Doc. No. 27).

         {¶7} The magistrate issued temporary orders on February 25, 2015, designating Kaitlyn the residential parent and legal custodian of the parties' child and affording Sean visitation as the parties agree, or in the event an agreement could not be reached, three of every four weekends from Friday 6:00 p.m. to Sunday 6:00 p.m. Custody exchanges were ordered to take place in Van Wert, Ohio, at a mutually agreeable location. Sean was ordered to pay child support.

         {¶8} On March 6, 2015, less than two weeks after the temporary orders were issued, Kaitlyn filed a motion to modify the temporary orders requesting the trial court to modify Sean's parenting time to every other weekend from Friday 6:00 p.m. to Monday 6:00 p.m. Kaitlyn claimed that the frequent travel required by the parenting time schedule in the court's temporary orders placed a "substantial amount of stress on the child." (Doc. No. 28). Sean filed a response "strenuously" opposing Kaitlyn's motion claiming that the proposed modification would deprive him of the opportunity to develop a strong father-son relationship with H.R.

         {¶9} On March 17, 2015, the magistrate issued an order overruling Kaitlyn's motion to modify Sean's parenting time stating that "the undersigned ordered that Plaintiff receive three out of four weekends with the parties' minor child in an attempt to approximate the amount of time he had spent with the child prior to Defendant's move. The undersigned believes that such a schedule is necessary to ...


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