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Payson v. Hennessey

Court of Appeals of Ohio, Twelfth District, Warren

June 25, 2018

SUSAN PAYSON, Plaintiff-Appellant/Cross-Appellee,
G. DANIEL HENNESSEY, Defendant-Appellee/Cross-Appellant.


          Thomas G. Eagle, for appellant/cross-appellee

          Timothy A. Tepe, for appellee/cross-appellant


          HENDRICKSON, J.

         {¶ 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 relations court.

         {¶ 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 campaign.

         {¶ 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 was "distorted."

         {¶ 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 parentings skills.

         {¶ 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 continue.

         {¶ 18} The court denied Mother's motion, concluding that it was in the children's best interest to continue to ...

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