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Brown v. Brown

Court of Appeals of Ohio, Twelfth District, Clermont

June 3, 2019



          Alexander, Wagner & Kinman, Christopher M. Alexander, for appellee

          Allen Law Firm, LLC, Mitchell W. Allen, for appellant


          HENDRICKSON, P.J.

         {¶ 1} Clinton Brown ("Father") appeals the decision of the Clermont County Court of Common Pleas, Domestic Relations Division, which terminated the shared parenting agreement between Father and appellee, Leah Kate Brown ("Mother"), and which designated Mother the sole residential parent and legal custodian of their two children. For the reasons described below, this court reverses and remands for the limited purpose of recalculating child support, but otherwise affirms the domestic relation court's decision.

         {¶ 2} Mother and Father married in 2004. In 2009, the marriage produced twin children, a girl ("Daughter"), and a boy ("Son"). In 2015, Mother and Father jointly petitioned the domestic relations court for dissolution and submitted a jointly proposed shared parenting agreement. The domestic relations court subsequently entered a final decree of dissolution and a decree of shared parenting. The shared parenting agreement named both parents residential parents and legal custodians of the children. The agreement provided Father with parenting time on Tuesday and Thursday evenings and every Saturday morning until Sunday afternoon.

         {¶ 3} Since the age of four, and before the marriage dissolved, Daughter had participated in cheerleading ("cheer"). Daughter continued this activity after the dissolution. As Daughter advanced in age and experience, cheer became more focused on tumbling routines. Daughter enjoyed cheer and she would "light up" when she talked about tumbling. Both Mother and Father supported Daughter in cheer, which required two weekday practices and eight to ten weekend competitions per year.

         {¶ 4} For several years Mother and Father successfully co-parented. However, Father remarried in 2016. This event apparently caused tension in the co-parenting relationship. In April 2017, Father informed Mother via e-mail that he would no longer "support" Daughter's cheer, writing, "I am not going to support [cheer] any longer. I am not going to continue to spend money to lose time with [Daughter]. If you choose for her to continue in [cheer], I will also want to make up any lost parenting time as a result of weekend competitions."

         {¶ 5} Meanwhile, other conflicts in shared parenting began to develop. In April 2017, Mother moved the domestic relations court to "enforce" certain aspects of the shared parenting agreement. Father responded by moving to terminate shared parenting and requested the court name him sole residential parent and legal custodian of the children. The domestic relations court appointed a guardian ad litem ("GAL") to investigate and make a custody recommendation.

         {¶ 6} Meanwhile, Mother signed Daughter up for her fourth season of cheer without Father's agreement. Weekend competitions were set to begin in the last two weeks of October 2017. Several weeks prior to the first event, and after the GAL had recommended that Daughter be allowed to participate in cheer, Mother e-mailed Father with the complete list of cheer competitions, beginning October 2017 through March 2018. Mother stated she was "open to any suggestion about how/when to make up time if you do not decide to attend the events, but we can handle each one as they come." Father responded, stating that he and Mother were "still bound by the existing parenting agreement" and he was "not sure how to proceed and will be contacting my attorney."

         {¶ 7} Shortly after Mother sent this communication, Father began demanding, through e-mail, that Mother promise to stop approaching him and speaking to him at their children's events. Mother would not agree and stated that she thought it was in their children's best interest that they put aside personal differences while attending their children's events and that they should simply be polite to one another. Mother explained "I have no desire to be around you, but I do believe it's healthy for two parents to share information about their kids at the kids' events. I also believe that this whole situation is easier on the kids if we are just simply polite to one another."

         {¶ 8} Father then petitioned for a civil protection order, which he was granted ex parte. This protection order was subsequently dismissed. However, the order of protection was in place for multiple weeks before a hearing was conducted. Mother then moved to terminate shared parenting.

         {¶ 9} Mother's counsel wrote to Father's counsel in advance of the first cheer competitions in October to determine how Father wished to proceed given Father's lack of support for cheer. Father failed to provide any substantive response until two days before the first cheer competition. Father's counsel indicated that Father would not bring Daughter to the event and would not agree to alter his parenting time to permit Daughter to participate. Father explained that this decision was premised on Mother's "contempt of the Shared Parenting Plan, her disregard of his requests" and "her continued emotional blackmail of him."

         {¶ 10} That Saturday, Mother did not deliver Daughter to Father for Father's parenting time. Instead, Mother kept Daughter and took her to her cheer competition. In the ensuing week, the GAL contacted the parties and attempted to mediate a temporary solution, relaying to Father that the GAL believed that it was in Daughter's best interest to participate in the next cheer competition and that Father should take her to the competition. Father would not agree to do so. As a result, Mother did not deliver Daughter to Father for a second Saturday and instead took the child to her cheer competition. During November and December 2017, Mother withheld Daughter from Father's parenting time on two additional occasions to allow Daughter to attend her cheer competitions.

         {¶ 11} Between October and December 2017, Father filed three contempt motions, alleging multiple instances of contempt, including each instance where Mother withheld Daughter from his parenting time for cheer.

         {¶ 12} In January 2018, a domestic relations court magistrate held a hearing on the parents' competing motions to terminate shared parenting and Father's contempt motions. At the beginning of the hearing, Father indicated that he was, in addition to moving to terminate shared parenting, alternatively requesting that the court modify the shared parenting agreement to provide him with additional parenting time.

         {¶ 13} Mother testified about Daughter's love for cheer, which Mother described as the one consistent part of Daughter's life. Mother took Daughter to her weekday practices, which always occurred during Mother's parenting time. Mother testified that she initially understood Father's position on cheer was that she could enroll Daughter but would have to pay for the activity herself - approximately $3, 500 per season - and that she would have to give Father makeup parenting time for any cheer competition that occurred during Father's weekend parenting time.

         {¶ 14} Father testified, conceding that he had not attended any of Daughter's cheer competitions since the dispute began but had attended all of Son's football events. He explained that he attended Son's events "because all of those were agreed to [with Mother] prior * * *." Father acknowledged that his children probably would not view the issue the same way he did and that "I know that it hurts [Daughter]." Father said he had talked to Daughter about why he did not support her in cheer, and explained, "I hate that for her and I know how much she likes it but to me as her father my time with her is more important." Father testified that he would be willing to allow Daughter to participate in cheer and would attend her events, but only if Mother or the domestic relations court gave him equal parenting time. Father also softened his earlier refusal to speak with Mother and testified that he would be willing to verbally communicate with Mother so long as they followed up the conversation with a written confirmation of what was said.

         {¶ 15} The GAL testified concerning her investigation. Initially, the GAL had recommended that the parents attempt to work through their issues and continue shared parenting, with Mother to be named the residential parent, Father to have alternating weekend parenting time, and that Daughter be permitted to continue cheer. However, the GAL eventually changed her recommendation to terminating the shared parenting agreement because of the high level of conflict between the parents and because Father had indicated to the GAL that he did not want to speak to Mother under any circumstances. The GAL described Father to the magistrate as "absolutely unreasonable" in terms of his willingness to communicate with Mother.

         {¶ 16} After hearing the evidence, the magistrate issued a decision recommending that the court terminate the shared parenting agreement and name Mother sole residential parent and legal custodian. The magistrate further recommended that Mother should have sole decision-making authority with respect to the children's extracurriculars and medical decisions. In so recommending, the magistrate noted Father's refusal to communicate with Mother and found that Father had placed his own interests ahead of his children's best interests.

         {¶ 17} The magistrate further recommended that Father have parenting time with the children one day during the week and on alternating weekends. The magistrate also issued a new child support order based on exhibits and testimony regarding the parents' respective incomes.

         {¶ 18} With regard to Father's contempt motions, the magistrate recommended the court find Mother guilty of contempt for certain violations of the shared parenting agreement, including each time Mother withheld Daughter from Father during Father's parenting time. The court found that Mother was a first offender of these violations and imposed a $100 fine, ordered Mother to pay Father $500 in attorney fees, to pay Father's court costs, and awarded Father makeup parenting time.

         {¶ 19} Father objected to the magistrate's decision. The judge overruled the objections and adopted the magistrate's decision. With respect to extracurriculars, the judge added an order prohibiting Mother from enrolling the children in more than one extracurricular activity per season that interfered with Father's parenting time.

         {¶ 20} Father appeals, raising nine assignments of error.

         {¶ 21} Assignment of Error No. 1:


         {¶ 23} Father argues that the court abused its discretion in terminating the shared parenting agreement and designating Mother sole residential parent and legal custodian. Father contends the court should have modified the existing shared parenting agreement and awarded him equal parenting time with the children.

         {¶ 24} A domestic relations court has discretion in custody matters, and its decision in such matters will not be reversed absent an abuse of that discretion. Davis v. Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the syllabus. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶ 25} Pursuant to R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting decree entered pursuant to R.C. 3109.04(D)(1)(a)(i) "upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children." A shared parenting decree is entered pursuant to R.C. 3109.04(D)(1)(a)(i) where "both parents jointly make the request [for shared parenting] in their pleadings or jointly file the motion and also jointly file the plan."

         {¶ 26} In this case, Mother and Father jointly entered a decree of shared parenting pursuant to R.C. 3109.04(D)(1)(a)(i) and separately moved the court to terminate shared parenting. Accordingly, the court was permitted to terminate the decree pursuant to R.C. 3109.04(E)(2)(c) and Father has not demonstrated an abuse of discretion. Moreover, and as will be discussed in the following assignment of error, the domestic relations court could have terminated the decree based upon its finding that shared parenting was not in the children's best interest. This court overrules Father's first assignment of error.

         {¶ 27} Assignment of Error No. 2:


         {¶ 29} Father argues that the domestic relation court's findings relative to the children's best interest were not supported by the evidence. Specifically, Father argues that the court should have concluded that shared parenting, where Father received equal parenting time, was in the children's best interest.

         {¶ 30} This court reviews the domestic relations court's factual findings underpinning its custody determination on a manifest weight of the evidence standard. In re Lamb, 12th Dist. Butler No. CA95-01-006, 1996 Ohio App. LEXIS 422, *7 (Feb. 12, 1996). In reviewing the manifest weight of the evidence, this court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

         {¶ 31} Following the termination of a shared parenting agreement pursuant to R.C. 3109.04(E)(2)(c), the domestic relations court is required to issue a decree allocating parental rights and responsibilities "as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made." R.C. 3109.04(E)(2)(d). In determining how to allocate parental rights, the court must take into consideration the best interest of the children. R.C. 3109.04(B)(1). The factors relevant to determining the best interest of the children are set forth under R.C. 3109.04(F)(1). The factors relevant to whether a shared parenting agreement would be in the children's best interest are set forth under R.C. 3109.04(F)(2).

         {¶ 32} The relevant best interest factors considered by the domestic relations court ...

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