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Larbig v. Larbig

Court of Appeals of Ohio, Eleventh District, Ashtabula

August 21, 2017

GLENN D. LARBIG, Plaintiff-Appellant,
v.
LISA LARBIG, Defendant-Appellee.

         Appeal from the Ashtabula County Court of Common Pleas, Domestic Relations Division, Case No. 2012 DR 034.

          Thomas J. Sacerich, Sacerich, O'Leary & Field, (For Plaintiff-Appellant).

          Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., (For Defendant-Appellee).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Glenn D. Larbig, appeals from the judgment of the Ashtabula County Court of Common Pleas, Domestic Relations Division, adopting the magistrate's decision, which terminated the parties' shared parenting agreement and designated appellee, Lisa Larbig, residential parent and legal custodian of the parties' minor daughter. We affirm.

         {¶2} The parties were divorced by final decree on May 13, 2013. The decree incorporated a shared parenting plan for their minor child, G.L., born April 20, 2009. The parenting plan provided that each party would serve as residential parent and legal custodian while G.L. was with that parent. Appellee was designated residential parent for school enrollment purposes. Appellant had parenting time on the following four-week cycle: The first, second, and third weekends, from Friday at 9:00 p.m. to Sunday at 7:00 p.m. Appellant did not have G.L. on the fourth weekend. In addition, for five of appellant's weekends throughout the year, he had the right to retain G.L. until Monday, at 11:45 a.m., if he was working that day, or 7:00 p.m., if he was not working. Holidays, Father's Day, and G.L.'s birthday were set in accordance with a standard order. Appellant also had parenting time for three weeks each summer to be exercised in increments of one week and for no more than two consecutive weeks at a time.

         {¶3} On September 10, 2013, appellant filed a motion for a restraining order on appellee's parenting time and an emergency motion for change of parental rights and responsibilities. In his motion, appellant alleged that appellee's live-in boyfriend was physically and possibly sexually abusing G.L. On October 25, 2013, the parties signed an agreed judgment entry, providing that all pending motions were dismissed and all restraining orders dissolved. Appellant, however, continued to make routine allegations that appellee and her boyfriend abused G.L., conceding he had filed "numerous" reports with both the Ashtabula Sheriff's Department as well as children's services. Children's services investigated the allegations. They were ultimately deemed unsubstantiated and no charges were filed and no case was opened.

         {¶4} On December 16, 2013, appellee filed a motion to terminate shared parenting and sought sole custody of G.L. On February 20, 2014, appellant filed a similar motion also seeking sole custody. Appellant additionally sought a custody evaluation and the court subsequently appointed Farshid Afsarifard, Ph.D., to evaluate the parties. The report was filed and the matter came on for hearing before the magistrate.

         {¶5} After hearing testimony from the parties, as well as considering the pre-divorce report filed by the guardian ad litem, as well as Dr. Afsarifard's report, the magistrate recommended the shared parenting plan be terminated and appellee be designated residential parent and legal custodian of G.L. Appellant was given parenting time on alternating weekends from Saturday at 9:00 a.m. until Monday, when he would take the child to school. If there is no school, appellant was given companionship until he is scheduled for work on Monday. Appellant filed objections to the decision, to which appellee responded. Ultimately, on November 21, 2016, the trial court adopted the magistrate's decision. This appeal follows. Appellant assigns two errors for our review. His first assignment of error provides:

         {¶6} "The trial court erred in adopting the magistrate's decision that wrongully considered allegations set forth in the guardian ad litem's report that contained matters that occurred prior to the May 13, 2013 hearing when the shared parenting plan was adopted."

         {¶7} Appellant contends that, pursuant to R.C. 3109.04(E)(1)(a), the trial court was statutorily required to consider only "facts that have arisen since the prior order * * *." Because the GAL's report was based upon facts that occurred prior to the previous order, the trial court erred in considering the report. We do not agree.

         {¶8} R.C. 3109.04(E)(1)(a) provides, in relevant part:

         {¶9} 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. (Emphasis added)

         {¶10} Appellant is correct, the foregoing statute permits a court to modify a prior decree only if it determines, based upon facts that have occurred since the prior decree. R.C. 3109.04(E)(1)(a), however, does not control the court's action in this matter. That statute authorizes the court to modify a prior decree allocating parental rights and responsibilities. In this case, the parties sought to terminate the prior shared parenting agreement. While termination is, semantically, a form of modification, the General Assembly has specifically ...


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