Court of Appeals of Ohio, Second District, Montgomery
RUSSELL C. BURKS Plaintiff-Appellee
ANN M. BURKS Defendant-Appellant
Relations Appeal from Common Pleas Court Trial Court Case No.
KEARNEY, Atty. Reg. No. 003191, Attorney for
STARLINE, Atty. Reg. No. 0078552, Attorney for
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.
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
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.