Court of Appeals of Ohio, Twelfth District, Warren
FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS
DIVISION Case No. 15 DR 37939
G. Eagle, for appellant/cross-appellee
Timothy A. Tepe, for appellee/cross-appellant
1} Appellant/cross-appellee, Susan Payson
("Mother"), appeals the decision of the Warren
County Common Pleas Court, Domestic Relations Division, which
ordered shared parenting of Mother's and
appellee/cross-appellant, G. Daniel Hennessey's
("Father"), three children and which designated
Father as the residential parent for school purposes. Father
cross-appeals with respect to the court's order
concerning marital real estate. For the reasons discussed
below, this court affirms the decision of the domestic
2} Mother and Father wed in 2002. Mother was an
emergency room physician and Father was a self-employed
political lobbyist. Both were producing excellent incomes.
Father eventually left his business in favor of managing
rental real estate that the couple purchased.
3} The marriage produced children born in 2006,
2007, and 2013. Mother began working less in favor of staying
home with the children. As the real estate market suffered in
or around 2008, the rental properties Father was managing
stopped producing income or produced negligible income.
Eventually, the properties went into foreclosure. Between
2010 and 2013, Mother's and Father's joint annual
income averaged approximately $15, 000.
4} In 2013, Mother allowed her emergency room
certification to lapse. This decision would later render
Mother unable to obtain another position as an emergency room
physician. Both parents agreed that Mother would home school
the children. In early 2013, Father left the marital home for
a political job in Michigan while Mother stayed home with the
children and home schooled the two older children.
5} On average, Father would return home every other
weekend. Father lived and worked in Michigan for almost two
years. He left Michigan to run a political campaign in
Kentucky and then returned to Michigan. Finally, Father moved
to Indianapolis for employment with a different political
6} In 2015, Mother filed a complaint for divorce and
requested custody of the children. The court initially
granted Mother temporary custody of the children and granted
parenting time to Father. In his answer, Father requested to
be named residential parent.
7} Mother moved the court to appoint Dr. Gordon
Harris, a psychologist, to perform a custody evaluation for
the purposes of making a parenting recommendation to the
court. Likewise, Father moved the court to appoint a guardian
ad litem ("GAL") for the children. Father's
motion alleged that he was concerned that the children were
not receiving an adequate education through Mother's home
schooling efforts and that Mother refused to place the
children in a traditional school. The court granted both
motions and appointed Dr. Harris and a GAL for the children.
8} After meeting with the family on multiple
occasions, Dr. Harris produced a lengthy written report
recommending that the court designate Father the residential
parent and that Mother should receive parenting time. Dr.
Harris found that Mother was a highly inflexible individual
who exhibited poor judgment and that there were serious
concerns about the educational aptitude of the two older
children whom Mother was homeschooling. After assessing and
testing the children individually, Dr. Harris found that the
children were not functioning at an appropriate educational
level, and that it was difficult to understand how Mother, a
highly-intelligent person, could believe that her children
were at an appropriate educational level for their age. Dr.
Harris opined that Mother's perception of her children
9} Similarly, the GAL's report recommended that
the court designate Father the residential parent. The GAL
found serious deficiencies in Mother's care for the
children with respect to the children's education, health
care, and social development. The GAL also found that Mother
failed to recognize that there were any issues with her
children and that Mother was defiant in defense of her
10} The matter proceeded to a trial where parenting
rights was the most contested issue. Mother called various
expert and lay witnesses who criticized Dr. Harris' and
the GAL's reports and recommendations. Mother testified
that she was ameliorating Father's and Dr. Harris'
educational concerns by enrolling the children part-time at a
local Montessori school. Mother was working every other
weekend at an urgent care center, averaging 40 hours a month.
11} Father testified that he was employed through
the end of the year with a political campaign in Indiana but
that he was seeking a permanent, stable position through his
political connections in Indiana. He had recently moved to a
residence that was within walking distance to a Catholic
school where he wanted to enroll the children if the court
designated him residential parent. While the divorce was
pending, Father hired a tutor to work with the children
during his parenting time. Father had begun a new
relationship with a woman he met through one of his political
jobs and was engaged to marry her.
12} A magistrate issued a decision recommending that
Father be named residential parent for school purposes and
that Mother receive parenting time. The magistrate found that
there were various concerns with Mother's care of the
children, e.g., the cleanliness of the home and the
children's lack of social interaction with friends and
their community. However, the magistrate's overriding
concern was the children's education. The magistrate
concluded that Mother could not provide for the
children's education and was only willing to make changes
following the damaging reports submitted by Dr. Harris and
the GAL. However, the magistrate recommended that Mother
receive equal parenting time if she moved to within fifteen
miles from Father's residence in Indiana.
13} Both parties filed objections to certain aspects
of the magistrate's decision. While these objections were
pending, and several months after the children had been
residing primarily with Father, Mother moved for a
modification of parenting rights. In support of her motion,
Mother alleged that she could now demonstrate the falsity of
the grounds upon which the court named Father residential
parent for school purposes, i.e., the children's alleged
educational deficiencies. Specifically, Mother argued that
the two older children were assessed by their new grade
school shortly after beginning school and that they both
scored well. Mother further argued that Father was
disrespectful to her and of her parenting rights and was not
acting in the children's best interest with respect to
the children's medical needs.
14} The court issued a decision on the parties'
objections to the magistrate's decision, overruling
Mother's objection to the court's designation of
Father as residential parent. Several months later the court
issued a final decree of divorce although the court had not
yet ruled on Mother's motion for a modification of
parenting rights. Mother appealed but then moved this court
to stay the appeal and remand the case so that the lower
court could resolve the new parenting rights motion. This
court granted Mother's motion and the case was remanded
to the trial court.
15} The domestic relations court heard evidence over
several days on Mother's motion. Much of the testimony
and evidence concerned how quickly the two older children
began to excel at their traditional school, which called into
question the severity of their educational deficiencies.
Mother also was concerned that Father was disparaging her or
was not involving her in making parenting decisions.
16} Father testified that the children were doing
well living with him and attending the nearby Catholic grade
school. The children's paternal grandmother was paying
their tuition. Father now had a permanent position with the
state of Indiana with health insurance benefits. Father
indicated that the children's progress in a traditional
school was attributable to the tutoring he obtained for them.
Father testified that he was not disrespectful of
Mother's parenting rights but that problems arose because
Mother was overly insistent on raising the children her way.
As an example, when he informed Mother he wanted to take the
children to Disney World she told him he could not because
time "with Mickey" was "less important than
spending time with me."
17} The GAL also submitted an updated report to the
trial court, which reported that the children were happy and
healthy and doing well in their school in Indianapolis. The
GAL recommended that the current shared parenting plan
18} The court denied Mother's motion, concluding
that it was in the children's best interest to continue