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In re A.A.V.

Court of Appeals of Ohio, Second District, Champaign

January 12, 2018


         Trial Court Case No. 14JG23 (Appeal from Family Court)

          A.V., SR. Appellant-Pro Se

          NATALIE J. BAHAN, Atty. Reg. No. 0079304, 118 Court Avenue, Bellefontaine, Ohio 43311 Attorney for Appelle-A.C.


          TUCKER, J.

         {¶ 1} Plaintiff A.V. appeals from an order modifying a shared parenting order. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

         I. Facts and Procedural History

         {¶ 2} The parties, A.V. and A.C., are the biological parents of the minor child A.A.V. who was born in 2012. A.V. and A.C. were never married. The parties lived together in Urbana with the minor child until June 23, 2014 when A.V. filed a motion for emergency custody or, in the alternative, shared parenting. A hearing was conducted on September 30, 2014. Both parties appeared without counsel. Following the hearing, the trial court entered a judgment ordering shared parenting. The order stated that A.C. would have the child from Sunday at 8:00 p.m. until 8:00 on Wednesday and that A.V. would have the child from Wednesday at 8:00 p.m. until Friday at 8:00 p.m., and that the parents would alternate the weekends. The order further provided that holidays would be allocated in accordance with the Champaign County Family Court Standard Order of Parenting Time. The court declined to award child support due to the nearly equal parenting time. As the child was not of school age, neither party was designated as the residential parent. Neither party appealed.

         {¶ 3} On March 5, 2015, A.C. filed a pro se motion for change of custody. A.V. filed a response, pro se, in which he alleged that A.C. was not complying with the shared parenting order. A hearing was scheduled for June 25, 2015, however, A.C. filed a notice withdrawing her motion on June 11, 2015. The trial court entered a notice of the dismissal and cancellation of the hearing. A.V. filed a response in which he stated that the court erred by failing to hold a hearing on A.C.'s motion and that he believed someone in the clerk's office helped A.C. prepare her handwritten notice withdrawing her motion. The trial court filed an entry noting that because A.C. had withdrawn her motion, which was the only motion pending before the court, there was no issue requiring resolution.

         {¶ 4} On September 1, 2015, A.C. filed a notice of her intent to relocate to Columbus. A.V. filed a response to the relocation notice and a request for a hearing in which he asked for a change of custody and to be designated residential and custodial parent. On September 30, 2015, A.C. filed a notice withdrawing her intent to relocate. On November 30, 2015, A.V. filed a notice withdrawing his motion for a change of custody.

         {¶ 5} A.C. obtained counsel and on December 3, 2015, filed a motion requesting an order terminating shared parenting and an order granting her sole custody of the child. The trial court, on December 8, 2015, filed an order ruling that since A.V.'s motion had been withdrawn, A.C.'s motion was rendered moot. A.C, though it seems her motion could have proceeded despite A.V.'s withdrawal of his motion, did not object nor appeal.

         {¶ 6} On April 11, 2016, A.C. again filed a motion to terminate shared parenting and for an award of sole custody. In May, the trial court ordered the appointment of a Guardian Ad Litem ("GAL"). A.V. filed a response as well as a motion seeking sole custody or in the alternative for the court to continue the order of shared parenting. A.V. obtained counsel in July 2016. Thereafter, both parties engaged in discovery.

         {¶ 7} A hearing was conducted on January 24, 2017. The GAL filed a report indicating that the parties should continue with the shared parenting order. On February 13, 2017, the trial court entered a judgment stating that both A.V. and A.C. had agreed to maintain shared parenting. The court further found that the parties agreed to: (1) permit telephone contact with the child by either parent at all times; (2) use the court's "Family Wizard" system to communicate with each other regarding the child; (3) provide the other parent with notice of any medical appointments; (4) the right of first refusal of parenting time if the parent with the child needs child care for longer than an eight hour period; and (5) the division of parenting during the child's Christmas vacation once she begins school.

         {¶ 8} The parties, however, were unable to reach an agreement on three issues: (1) which parent would be designated as the residential parent for school purposes; (2) a modification to the parenting time exchange schedule; and (3) which parent should have parenting time during the child's 2017 spring break. The court found that it was in the child's best interest to attend school in the Urbana City School District. The court also modified the exchange time from 8:00 p.m. to 6:00 p.m., finding that the earlier exchange time was better for the child as it did not interfere with her bedtime. Finally, the court noted that its original decision, made prior to the child's enrollment in school, did not provide for parenting time during spring break. The court also noted that the parents agreed to alternate years for future spring break vacations, but that they ...

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