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Patrick v. Patrick

Court of Appeals of Ohio, Seventh District, Carroll

December 18, 2017

VICTORIA D. PATRICK PLAINTIFF-APPELLEE
v.
ROBERT J. PATRICK DEFENDANT-APPELLANT

         Civil Appeal from the Court of Common Pleas, Domestic Relations Division, of Carroll County, Ohio Case No. 2008 DRC 25458

          For Plaintiff-Appellee: Atty. Robert G. Abney Abney Law Office.

          For Defendant-Appellant: Atty. Adam J. Thurman Atty. Scott S. Rosenthal Atty. Brittany A. Graham Schoonover, Rosenthal, Thurman & Daray, LLC.

          JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro.

          OPINION

          WAITE, J.

         {¶1} Appellant Robert J. Patrick appeals the decision of the Carroll County Court of Common Pleas, Domestic Relations Division, terminating a shared parenting agreement. Appellant and Appellee Victoria D. Patrick agreed to share parenting of the three children born of their marriage at the time they dissolved the marriage in 2008. Shared parenting was modified in 2010 and again in 2012. Two of the children have been emancipated. The parties' minor child, who was ten years old at the time of the trial court hearing on this matter, is the only child subject to this matter.

         {¶2} Appellant presents several contentions on appeal. First, that the trial court erred in terminating the shared parenting agreement because there was no change in circumstances warranting termination. Second, that the trial court erred in finding Appellant engaged in domestic violence against Appellee during the marriage. Third, that the trial court erred in concluding termination of shared parenting was in the best interest of the child. Fourth, that the trial court erred in considering the testimony of the guardian ad litem appointed in the matter. Finally, Appellant claims that the trial court exhibited bias against him.

         {¶3} A review of the record, including all of the testimony given at trial, reveals that the trial court did not exhibit bias toward Appellant and did not err in considering the testimony of the guardian ad litem. Moreover, the trial court, correctly utilizing a best interest analysis, concluded that it was in the best interest of the minor child to terminate the shared parenting agreement. Accordingly, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Procedural and Factual History

         {¶4} The parties were married on March 20, 1998. While the parties had three children, two are emancipated and are not the subjects of this appeal. The third child, born in 2006, was ten years old at the time of the trial court order at issue. The parties filed a petition for dissolution of marriage on April 14, 2008. The dissolution was finalized by agreed judgment entry which incorporated a separation agreement and a shared parenting plan on June 2, 2008.

         {¶5} On September 22, 2009, Appellant filed a motion to modify the shared parenting agreement. The original agreement stated that Appellant was to have alternating weekend visitation and visitation around his work schedule. Appellant sought more visitation time and sought to require that Appellee give advanced notice of her planned vacations. A pretrial order was issued requiring the parties to maintain the status quo until the matter came for hearing and to refrain from directly or indirectly speaking about court matters with the children. On January 28, 2010, a guardian ad litem was appointed. This same guardian ad litem has remained in that position throughout the entirety of the parties' proceedings.

         {¶6} At the final hearing on the motion on July 14, 2010, counsel for Appellant read an agreed judgment entry into the record which modified the original agreement. Appellee was to continue to be the residential parent for school purposes. The visitation schedule was adjusted to accommodate the parties' schedules. The parties were responsible for transporting the children to and from school and each other's residences for visitation, and the parties agreed that if either party moved out of Carroll County, that party would be responsible for getting the children to school at the end of their visitation period. The parties also agreed to transport the children to any extracurricular activities scheduled during their respective visitation times. The parties agreed to equally share the cost of the children's uninsured medical and extracurricular activity expenses.

         {¶7} On December 15, 2010, less than six months from their agreed modification, Appellee filed a motion in contempt. Appellant, who had moved out of Carroll County, was refusing to transport the children to school. On January, 12, 2011, Appellant filed another motion to modify the shared parenting plan. Attached to the motion was Appellant's affidavit in which he claimed that Appellee had gotten the police involved during exchanges of the children, which was upsetting them and increasing the animosity between the parties. Appellant also stated in the affidavit that Appellee had made disparaging remarks about Appellant to the children. Appellant filed a motion requesting an in camera interview of their younger daughter regarding her desire to attend school in Louisville (where Appellant lived) rather than Carrollton.

         {¶8} On December 19, 2011, Appellee filed a motion seeking an immediate hearing because Appellant had refused permission for the parties' oldest child to obtain a passport and join her mother on a mission trip scheduled for early 2012.

         {¶9} On January 31, 2012, while Appellant's motion to amend the shared parenting agreement was still pending, Appellee filed a motion for an ex parte order requesting the court to issue an order allowing the parties' oldest child to attend a mission trip with Appellee to the Dominican Republic. The trial court granted Appellee's ex parte order on February 1, 2012.

         {¶10} On May 4, 2012, Appellant filed a motion to withdraw all pending motions to reallocate parenting rights and responsibilities. Appellant stated that his reason for withdrawing these motions was that the protracted litigation was damaging to the children. As Appellee's motion for contempt was still pending at this time, the trial court scheduled a contempt hearing.

         {¶11} On June 14, 2012, Appellee filed to dismiss her contempt action, but also filed a motion to modify custody and/or parental rights and responsibilities, seeking to have the shared parenting agreement terminated due to Appellant's failure to abide by its terms. The original guardian ad litem was once again appointed in the matter.

         {¶12} On July 26, 2012, Appellant filed his own motion to amend the shared parenting plan along with a motion requesting an in camera interview of the children by the court. The matter was heard on September 18, 2012, at which time the parties read another agreed judgment entry into the record. This time, the shared parenting plan was modified to a 2-2-5 schedule, where Appellant was to have parenting time every Monday and Tuesday, Appellee was to have parenting time every Wednesday and Thursday, and the parties were to alternate weekend visitation. The parties also agreed to coordinate with Appellee's work schedule.

         {¶13} On March 5, 2014, Appellant filed another motion for reallocation of parental rights and responsibilities and a motion to modify and/or terminate the shared parenting plan. Appellant attached a sworn affidavit to the motion, stating that Appellee alienated the oldest child from him, that the minor child should be transferred from the Carrollton school he was attending to the Louisville school district to join a sibling, who was living with Appellant and attending a Louisville school. Appellant also alleged that Appellee had a number of paramours in her life, which was not in the children's best interest. Appellant asserted that visitation exchanges were becoming emotionally stressful. The guardian ad litem was once again appointed in the matter.

         {¶14} While Appellant's motion was pending, Appellee filed a motion ex parte, seeking an order that visitation between Appellant and the minor child be immediately terminated. Attached to the motion was an affidavit from Appellee and two letters from the child's long-time counselor. Appellee requested that the letters "not be released to the public or directly to the parties due to the sensitive matters contained therein." (4/17/14 Motion for Ex Parte Order). In her motion, she requested the letters be made available for inspection by Appellant but that neither party should be given copies. These letters have not been made part of the record and are not before this Court. In her affidavit, Appellee says the child's counselor told her that contact with Appellant was very stressful for the child and that the child was afraid Appellant was going to kill Appellee.

         {¶15} On April 17, 2014, the trial court granted Appellee's ex parte motion and ordered all companionship between Appellant and the child to immediately cease until further order of the court. On April 21, 2014, Appellant filed a motion for immediate review. According to a second such motion filed on June 23, 2014, the guardian ad litem recommended Appellant be given two, four-hour visits with the child, supervised by Appellant's sister before returning to the regular parenting time schedule, but Appellee refused to cooperate with this recommendation. On June 25, 2014 a hearing was held. At the conclusion of the hearing, the trial court issued an entry ordering the parties to adhere to the visitation as recommended by the guardian ad litem.

         {¶16} On November 26, 2014, Appellee again filed her own motion to modify and/or terminate the shared parenting agreement. The court once again appointed the original guardian ad litem. On March 19, 2015, Appellee filed a motion requesting an in camera interview with the parties' minor child. On May 14, 2015, Appellant withdrew his motion for reallocation of parental rights and responsibilities and termination of the shared parenting plan. On August 16, 2016, the guardian ad litem filed a motion to submit her report under seal due to the highly contentious nature of the case. Throughout the remainder of the proceedings, the guardian ad litem requested that all of her reports be filed under seal, out of concern that the parties were sharing the contents of her reports with the child and causing additional anxiety. The trial court granted the guardian's requests. A report of the court's in camera interview of the minor child was also filed under seal in this matter. On November 9, 2016, Appellant filed a motion to show cause regarding unpaid medical expenses for the minor child.

         {¶17} On November 18, 2016, a hearing was held on Appellee's motion to modify or terminate shared parenting. At the conclusion of the hearing, the trial court ordered the parties to submit proposed findings of fact and conclusions of law. These were submitted by both parties on December 12, 2016. On December 20, 2016, the trial court issued a judgment entry stating that after consideration of all factors, including those set forth in R.C. 3109.04(F)(1)(a)-(j) and R.C. 3109.04(F)(2)(a)-(e), termination of the shared parenting plan was in the best interest of the child. Appellant timely appealed, raising six assignments of error.

         {¶18} Appellant's first, second, third, fourth and fifth assignments of error all relate to the termination of the shared parenting agreement and, specifically, the factors on which the trial court relied in ordering termination of shared parenting. Due to the overlapping nature of ...


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