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Nungester v. Nungester

Court of Appeals of Ohio, Third District, Marion

March 26, 2018

KATE NUNGESTER, PLAINTIFF-APPELLEE,
v.
ROBERT NUNGESTER, DEFENDANT-APPELLANT.

          Appeal from Marion County Common Pleas Court Family Division Trial Court No. 13 DR 0044

          Ted Coulter for Appellant.

          Nathan Witkin for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Appellant, Robert Nungester, Jr. ("Robert") appeals the amended judgment entry of the Marion County Common Pleas Court, Family Division, wherein the trial court denied Robert's motion to modify parenting time.

         {¶2} Robert appealed the trial court's first judgment entry with this Court on December 22, 2016, in Nungester v. Nungester, 3d Dist. Marion No. 9-16-64, 2017-Ohio-6935. The result of that appeal led to our remand order because the trial court used R.C. 3109.04, not R.C. 3109.051, as its best interest guide when addressing a modification of visitation. Robert's current appeal is from the amended judgment entry issued by the trial court pursuant to our remand in the prior appeal.

Facts and Procedural History of Prior Appeal

         {¶3} Robert and Kate Nungester ("Kate") were divorced on August 23, 2013 in the Marion County Common Pleas Court. As part of their divorce, they entered into an agreed parenting plan for their three minor children. The shared parenting plan designated Kate as the residential parent and permitted Robert limited visitation with the opportunity for Robert to increase visitation over time to parenting time set forth in the Marion County Local Rule 32(A). Robert's visitation was to be reconsidered upon the recommendation of the children's counselor, with overnight visits to start when Robert had obtained appropriate housing.

         {¶4} On March 20, 2015 Robert filed a motion in the trial court to modify the shared parenting plan to be named the residential parent of the children, along with a motion to modify his parenting time. However, pending a final hearing on his motions, on March 23, 2016, Robert and Kate entered into an agreement modifying Robert's visitation (with the children) from being supervised by the Marion County Supervised Visitation Agency (C•A•R•E | F•I•T•") to visitation occurring in a public place and supervised by Kate. The agreement also required Robert to attend counseling sessions with the children at the discretion of the children's counselor. Lastly, the modification provided that Robert and Kate could mutually agree to periods of unsupervised parenting time with the minor children (by Robert) before the next court review hearing.

         {¶5} Ultimately, a hearing was held in the trial court on Robert's motions. At that hearing, Robert advised the trial court that he only wanted to expand his visitation rights to match the default visitation schedule of the trial court under its local rule. On November 23, 2016, the trial court entered a judgment entry denying Robert's motions. Robert timely filed his appeal and this court remanded the case to the trial court.

         Facts and Procedural History of Current Appeal

         {¶6} Pursuant to our remand, on September 15, 2017, the trial court issued its amended judgment entry in which it analyzed the factors set forth in R.C. 3109.051(D) determining that it was in the best interest of the children to deny Roberts motion to modify the prior order as to his parenting time. (Doc. 149). Robert has timely appealed the trial court's amended entry wherein he asserts a sole assignment of error for our review.

         ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION AND ERRED AGAINST THE WEIGHT OF THE EVIDENCE BY DETERMINING IT WAS NOT IN THE BEST INTERESTS OF THE PARTIES' CHILDREN UNDER R.C. 3109.051 FACTORS TO HAVE LOCAL RULE 32A PARENTING TIME WITH THEIR FATHER/DEFENDANT-APPELLANT AND THEREFORE DENYING THE FATHER/DEFENDANT-APPELLANT'S MOTION TO MODIFY PARENTING TIME.

         {¶7} In his assignment of error, Robert agues the trial court abused its discretion when it denied his motion to ...


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