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In re N.J.V.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

IN RE N.J.V. A Minor Child Appeal by L.R.H., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PR 15714282

          Hans C. Kuenzi Co., L.P.A., and Hans C. Kuenzi, for appellant.

          Adam R. Waller; Kurt Law Office, L.L.C., and Pamela D. Kurt, for appellee.



         {¶ 1} Defendant-appellant, L.R.H. ("Mother") appeals a juvenile court order allocating parental rights and responsibilities between herself and R.V. ("Father"). She claims the following four errors:

1.The trial court erred in awarding the parties shared parenting and designating Father as residential parent for school enrollment purposes.
2. The trial court erred in adopting as its order a shared parenting plan filed by Father on June 13, 2018 without making findings of fact and conclusions of law as to its reasons for the approval of the plan.
3. The trial court erred in adopting as its order a shared parenting plan filed by Father which was contrary to the best interest of the minor child.
4. In its adoption of a shared parenting plan filed by Father, the trial court erred in omitting from its order page 10 of its standard parenting time schedule to which reference was made in said plan.

         {¶ 2} We find no merit to the appeal and affirm the trial court's judgment. However, we remand the case to the trial court for a nunc pro tunc journal entry to correct a clerical error.

         I. Facts and Procedural History

         {¶ 3} Mother and Father are the parents of N.J.V., a minor child, who was born on September 10, 2012. The parties had a brief relationship and separated approximately one month after N.J.V. was born. They shared parenting without court intervention until N.J.V. was three years old, when Mother informed Father that she was thinking of moving to Columbus, Ohio. Consequently, in October 2015, Father filed a complaint seeking a court order allocating parental rights and responsibilities. Father later filed a motion for shared parenting and submitted a proposed shared parenting plan on June 24, 2016. The matter proceeded to trial on June 19, 2017, and January 24, 2018.

         {¶ 4} Father testified that he maintained a relationship with N. J.V. after the parties separated and saw him almost daily. The parties arranged Father's visitation time around their respective work schedules. Because Father completed his workday by midafternoon and Mother worked in the evenings, Father regularly cared for N.J.V. in the evenings until Mother moved to Columbus in March 2016. Father, however, did not have overnight visits with N.J.V. until he was approximately one year old.[1]

         {¶ 5} Mother testified that she moved to Columbus for better employment opportunities. Mother is now married to T.K., and had a daughter, B.K., who was born in January 2017. T.K. has an eight-year-old son from a prior relationship, who stays with Mother and T.K. every Wednesday and every other weekend. Since B.K.'s birth, Mother stayed home with the children and began pursuing a degree in social work from Ohio University in January 2018.

         {¶ 6} At the time of trial, Father was engaged to J.L., who had a six-year-old daughter from a prior relationship. Father testified that N.J.V. is comfortable in their home and gets along well with J.L.'s daughter, J.R.L. (Tr. 10-11.)

         {¶ 7} Father initially filed an emergency motion for custody when Mother informed him she was moving to Columbus. He later withdrew the motions because the parties reached an agreement that afforded Father parenting time in Cleveland every Thursday and every other weekend. The parties nevertheless had several disagreements regarding N.J.V.'s care and education, and Father felt that Mother attempted to prevent Father from parenting N. J.V.

         {¶ 8} N.J.V. developed a tic, which Father wanted evaluated by a neurologist. Mother dismissed his concern, stating that the child's pediatrician told her it was a temporary reaction to a virus. N.J.V. was also underweight, and Father was concerned about his eating habits. Father testified that Mother denied there was a weight problem and delayed treatment. (Tr. 150.) Mother eventually agreed that N.J.V. needs special attention to ensure he eats enough food, but the parties disagreed on the types of food he should be eating.

         {¶ 9} Father testified that Mother tried to exclude him from N.J.V.'s doctor's appointments. And Father, who was concerned for N.J.V.'s welfare, sometimes consulted with physicians and questioned Mother's actions. For example, when Father questioned Mother about the fact that she seemed to be neglecting N.J.V.'s severe allergies, she replied that she was unable to make a doctor's appointment. (Tr. 126.) Father scheduled an appointment with a doctor in Cleveland, but Mother cancelled it. Father testified that when he confronted Mother about the cancellation, she claimed that "[a]ll of a sudden she was able to get him in right away * * *." (Tr. 71-72.)

         {¶ 10} N.J.V. also had dental decay on a front tooth that required a procedure. Mother initially scheduled the procedure in Columbus during Father's parenting time. (Tr. 62-63, 117.) Father agreed to stay in a hotel in Columbus in order to take N.J.V. to the appointment. (Tr. 62-63.) Mother, however, rescheduled the appointment to an earlier date that fell within her parenting time. The guardian ad litem ("GAL") testified that Mother initially scheduled the procedure in Columbus during Father's time in order to interfere with Father's parenting time and subsequently rescheduled it after Father indicated he would come to Columbus to take N.J.V. to the appointment. (Tr. 118-120.)

         {¶ 11} Father also attempted to exclude Mother from at least one medical intervention. Father took N.J.V. to a pediatrician in Cleveland where he was tested for strep throat. The rapid test indicated a negative result but the doctor's office called the following Wednesday to inform Father that the throat culture was positive. Rather than have the doctor call the prescription into a pharmacy near Mother's house, Father waited until the next day when he had custody of N.J.V. to fill the prescription and start administering it. Father admitted at trial that he should have told Mother of the diagnosis and started the antibiotics 24 hours earlier. (Tr. 47-49.)

         {¶ 12} The GAL testified that "it's Mom's intention in some aspects of [NJ.V.'s] life to cut Dad out." (Tr. 112.) The GAL explained: "I believe that Mom wants Dad to have some parenting time with [N.J.V.]; however, I believe that she does not want Dad to make any decisions regarding N.J.V." (Tr. 146.) Mother admitted to the GAL that she did not want Father to take N.J.V. to any doctor's appointments. (Tr. 146.)

         {¶ 13} The GAL further testified she believes Mother intentionally removed N.J.V. from the court's jurisdiction when she moved to Columbus. Shortly after the complaint was filed, the case was set for a pretrial on March 10, 2016. Mother requested a continuance, claiming she needed additional time to retain counsel. She then moved to Columbus on March 18, 2016, and did not file a motion to relocate with the court. The GAL explained to Mother that when she moved to Columbus after Father filed his complaint, she removed the child from the jurisdiction. According to the GAL, Mother responded: "I know. That's why I did it." (GAL report at 4.) Mother denied any memory of this conversation.

         {¶ 14} The GAL testified that both parents love N.J.V. and are capable of properly caring for him. However, she recommended that Father be designated the residential parent for school purposes because "Father is the one most likely to abide by Court orders * * * and is most likely to not exclude Mom from the child's life." (Tr. 93.) The GAL further opined that "Mother is resistant to shared parenting." (Tr. 95.)

         {¶ 15} Following trial, the parties submitted written closing arguments and proposed findings of fact and conclusions of law. Father also filed an updated shared parenting plan dated June 13, 2018. Mother, who was requesting sole custody, did not submit a shared parenting plan. The trial court issued a judgment awarding shared parenting based on Father's proposed plan, which designated him the residential parent for school purposes. This appeal followed.

         II. Law and Analysis

         A. Manifest Weight of the Evidence

         {¶ 16} In the first assignment of error, Mother argues the trial court's judgment ordering shared parenting and designating Father the residential parent for school enrollment ...

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