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Zwick v. Zwick

Court of Appeals of Ohio, Fifth District, Stark

June 11, 2018

JOHN ZWICK Plaintiff-Appellee
v.
TYRA ZWICK Defendant-Appellant

          Appeal from the Stark County Common Pleas Court, Family Court Division Case No. 2015DR00986

          For Plaintiff-Appellee CHRISTOPHER DIONISIO

          For Defendant-Appellant DENISE K. HOUSTON COLLIN S. WISE Tzangas Plakas Mannos Ltd.

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          HOFFMAN, P. JUDGE

         {¶1} Appellant Tyra Zwick appeals the judgment entered by the Stark County Common Pleas Court, Family Court Division, naming Appellee John Zwick residential parent of the parties' two minor children.

         STATEMENT OF THE FACTS AND CASE

         {¶2} The parties were married in 2006, and had two minor children: a daughter born in 2005, and a son born in 2007. Appellee filed the instant divorce action on October 2, 2015. Appellant filed a proposed shared parenting plan with the court. Appellee sought to be named sole residential parent of the children, and did not file a proposed shared parenting plan with the court.

         {¶3} Appellee continues to reside in the marital home in the Canton Local School District, where the children have resided since birth. The children have always attended school in the Canton Local district.

         {¶4} After separating from Appellee, Appellant moved to a $385, 000 house in Green with her paramour. She believes the schools in Green to be far superior to the Canton Local schools, which she believes have problems with drugs and bullying. She sought to move the children to Green with her in order to attend school in Green. She has worked occasionally as a bartender and has acted as an extra in movies and commercials. She was employed part-time at a business partially owned by her paramour. They have no plans to get married.

         {¶5} The case proceeded to a hearing before a magistrate, with the hearing focused primarily on the issue of custody of the children. The magistrate found Appellant's proposed shared parenting plan to be shared "in name only" because it was so "lopsided that it was blatantly unfair." The magistrate found the shared parenting plan was not in the best interests of the child.

         {¶6} The magistrate recommended Appellee be named the residential parent of the children, while giving Appellant nearly equal time with the children. The magistrate found Appellee represented stability and consistency, as appellee was well-grounded with a strong support system.

         {¶7} The magistrate noted Appellant was a stay-at-home mom who was actively involved with the children, but also found she preferred a "partying lifestyle" to being with family. The magistrate further found she raised concerns that were both real and contrived, exaggerates, tends to be dramatic, and is not entirely truthful or realistic in her perceptions of the world. The magistrate found she was not realistic about moving the children to Green where she had no support system and her entire world was based on her paramour, nearly twenty years her senior, whom she had no present plans to marry and had not considered what would happen to her and the children in Green if they separated.

         {¶8} Appellant filed objections to the magistrate's report. The court adopted the magistrate's findings concerning custody, but added several findings of its own. The court found Appellant showed the guardian ad litem's report to the older child. The court further found the parties talked about each other so poorly in front of the children as to cause the children stress. The court found the parties do not communicate in a manner conducive to shared parenting. The court further noted the daughter was confused by the relationship between Appellant and her paramour, because at the time Appellant was still married to Appellee. The court further found this confusion was heightened by Appellant sleeping in the same bed with her paramour when the children were visiting. The court also found Appellant's health problems require a "plethora" of doctor's appointments which take up quite a bit of her time. Further, the court concluded Appellant has told the children Appellee is not truthful.

         {¶9} It is from the November 1, 2017 judgment naming Appellee the residential parent Appellant prosecutes her appeal, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ADOPT A SHARED PARENTING PLAN AND INSTEAD AWARDED SOLE ...

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