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Burks v. Burks

Court of Appeals of Ohio, Second District, Montgomery

February 23, 2018

RUSSELL C. BURKS Plaintiff-Appellee
v.
ANN M. BURKS Defendant-Appellant

         Domestic Relations Appeal from Common Pleas Court Trial Court Case No. 14-UJ-4

          KEITH KEARNEY, Atty. Reg. No. 003191, Attorney for Plaintiff-Appellee

          TYLER STARLINE, Atty. Reg. No. 0078552, Attorney for Defendant-Appellant

          OPINION

          HALL, J.

         {¶ 1} Ann Burks appeals from an order of the domestic relations court that imposes a supervision requirement on her parenting time and increases her child-support obligation. Finding no error, we affirm.

         I. Background

         {¶ 2} The parties, Ann and Russell Burks, were divorced in 2010 in Virginia. They have a son, born in November 2005. The Virginia court granted them joint custody of him, giving Mother primary physical custody.

         {¶ 3} The Virginia divorce decree was registered in Montgomery County, Ohio. Afterwards, the parties filed numerous motions in the Montgomery County Domestic Relations Court concerning their son, and a guardian ad litem (GAL) for the child was appointed. A shared-parenting plan was adopted in December 2015 under which the parties would alternate time with the boy on a week-to-week basis. It was not long before each party moved to terminate shared parenting and reallocate parental rights and responsibilities.

         {¶ 4} In August 2016, the magistrate granted the motions and terminated the shared-parenting plan, designating Father the child's residential parent and legal custodian. The magistrate adopted the domestic-relations court's Standard Order of Parenting Time but also retained the alternating week-to-week parenting time schedule. The magistrate also ordered Mother to pay $335 per month in child support. In calculating support using the support worksheet at that time, the magistrate credited each party with child-care expenses based on their testimony and gave Mother a deviation in child support based on the parenting-time allocation. Neither party filed objections, and the trial court adopted the magistrate's decision.

         {¶ 5} In September 2016, Father filed a motion asking the court to modify Mother's parenting time to reflect the parenting time in the Standard Order, purportedly due to Mother's exclusion from the child's daycare center as a result of alleged "disruptive behavior." The motion also asked the court to remove the child-support deviation and to allow Father, rather than Mother, to provide health insurance for the child. A hearing was held in January and February 2017 at which Father and the GAL testified about a number of issues and concerns that they had with Mother. Among these concerns was the belief that Mother had left the child home alone. Mother testified that, on occasion, when she had to briefly leave (never overnight), she would ask neighbors in her condo complex who the child knew to keep an eye out for him. Mother said that she believed that the child was mature enough to be left alone for short periods of time. Father testified that, in light of the child's behavioral problems and other issues, Father thought that the child should not be left alone. The GAL agreed. The magistrate denied Father's request to modify Mother's alternating week parenting time schedule. But the magistrate did order that when Mother has the child, she is not to leave him "without direct supervision."

         {¶ 6} The magistrate treated the request to remove the child-support deviation as a request to modify child support. The magistrate found that Father's child-care costs had increased $6, 500 per year based on Father's testimony that this was the yearly tuition for the daycare that he had enrolled the child in after shared parenting was ended and he obtained legal custody. The magistrate did not credit Mother with any child-care expenses, finding that she did not appear to have any, but did retain the child-support deviation. Using the support worksheet, the magistrate increased Mother's child-support obligation to $571 per month. The magistrate also ordered that Father provide the child's health insurance.

         {¶ 7} Both parties filed objections to the magistrate's decision. On August 25, 2017, the trial court overruled Father's objections, sustained one of Mother's objections, and overruled her other two objections. One of Mother's overruled objections concerned the supervision requirement. She argued that the requirement was ambiguous and overbroad. Although the court overruled Mother's objection, it attempted to clarify the requirement by ordering that Mother, or a babysitter, must "be present" with the child. The other of Mother's overruled objections concerned the increase in child support. The trial court concluded that the magistrate did not err by accepting Father's testimony as to the child-care tuition increase, and the court noted that Mother did not testify about her own child-care expenses.

         {¶ 8} Mother appealed.

         II. ...


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