Court of Appeals of Ohio, Eleventh District, Ashtabula
GLENN D. LARBIG, Plaintiff-Appellant,
LISA LARBIG, Defendant-Appellee.
from the Ashtabula County Court of Common Pleas, Domestic
Relations Division, Case No. 2012 DR 034.
J. Sacerich, Sacerich, O'Leary & Field, (For
C. Kuenzi, Hans C. Kuenzi Co., L.P.A., (For
CYNTHIA WESTCOTT RICE, P.J.
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
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.
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.
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.
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:
"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."
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.
R.C. 3109.04(E)(1)(a) provides, in relevant part:
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)
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