Court of Appeals of Ohio, Twelfth District, Clermont
FROM CLERMONT COUNTY COMMON PLEAS COURT DOMESTIC RELATIONS
DIVISION Case No. 2015DRC00545
Alexander, Wagner & Kinman, Christopher M. Alexander, for
Law Firm, LLC, Mitchell W. Allen, for appellant
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
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
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
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
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
21} Assignment of Error No. 1:
22} THE TRIAL COURT ABUSED ITS DISCRETION IN
TERMINATING THE SHARED PARENTING PLAN AS REQUESTED BY MS.
BROWN RATHER THAN MODIFYING THE EXISTING PLAN AS REQUESTED BY
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:
28} THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING MS. BROWN SOLE CUSTODY OF THE MINOR CHILDREN FOR
REASONS THAT WERE AGAINST THE MANIFEST WEIGHT OF THE
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.
32} The relevant best interest factors considered by
the domestic relations court ...