from Marion County Common Pleas Court Family Division Trial
Court No. 13 DR 0044
Coulter for Appellant.
Witkin for Appellee.
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.
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
Facts and Procedural History of Prior Appeal
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.
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.
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.
and Procedural History of Current Appeal
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.
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
In his assignment of error, Robert agues the trial court
abused its discretion when it denied his motion to ...