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Bruns v. Green

Court of Appeals of Ohio, Tenth District

June 11, 2019

Kayleigh Bruns, Plaintiff-Appellee,
v.
Marcus Green, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 13JU-8624, Domestic Relations, Juvenile Branch

         On brief:

          Plymale & Dingus, LLC, and M. Shawn Dingus, for appellee.

         Argued:

          M. Shawn Dingus.

         On brief:

          Randy S. Kurek, for appellant.

         Argued:

          Randy S. Kurek.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, Marcus Green, appeals the March 2, 2018 judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which terminated a prior shared parenting decree and plan and allocated the parental rights and responsibilities of appellant and plaintiff-appellee, Kayleigh Bruns. For the following reasons, we affirm the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant and appellee are the biological parents of one minor child born in 2012. On October 10, 2014, the parties entered into an Agreed Shared Parenting Plan ("the Plan") pursuant to R.C. 3109.04, in which both parties were "designated as the residential parents and legal custodians," appellant was designated as the "school placement parent" so long as he resided in the Westerville School District, and both parents would exercise equal parenting time. (Agreed Shared Parenting Plan at 2.) The trial court approved the Plan and incorporated it into a shared parenting decree.

         {¶ 3} On June 3, 2015, appellant filed a motion for change of parental rights and responsibilities requesting full custody of the child. Thereafter, appellee filed a "Motion to Terminate Shared Parenting and to Reallocate Parental Rights and Responsibilities" on August 27, 2015, in which appellee requested the trial court order termination of the Plan pursuant to R.C. 3109.04(E)(2)(c) or, in the alternative, a modification of the Plan. Appellant likewise filed a motion to terminate shared parenting plan on September 21, 2015, in which appellant requested the trial court terminate the Plan or, in the alternative, modify the plan. Each party sought sole legal custody of the child along with an order for the other party to pay child support. The guardian ad litem for the minor child filed a report on November 14, 2016 and a supplemental report on April 3, 2017. A hearing on the matter was held on April 11 and 12, July 13 and 14, September 12 and 13, and November 2, 2017, where both parties were present during the hearing and represented by counsel.

         {¶ 4} On March 2, 2018, the trial court entered judgment that decreed the "parties' Joint Shared Parenting Plan terminated," designating appellee as the sole legal custodian and residential parent of the minor child stating a parenting schedule for the minor child both prior to and after the commencement of kindergarten. (Emphasis sic.) (Trial Ct. Jgmt. at 11.) The trial court modified the current order of child support from $0 to $322.26 to $376.95, depending on whether private health insurance is in effect. In doing so, the trial court considered the "best interest of a child" factors listed in R.C. 3109.04(F)(1) and (2) and parenting time factors listed in R.C. 3109.051(D).

         {¶ 5} Appellant filed a timely appeal.

         II. ASSIGNMENTS OF ERROR

         {¶ 6} Appellant assigns the following as trial court error:[1]

[1.] The trial court committed reversable [sic] error in changing the minor child's residential parent without any determination of a substantial change in circumstances and that either (i) both parties agreed to the change; (ii) both parties have consented to the integration of the minor child into Appellee's family; or (iii) that the harm likely to be caused to the minor child by the change of environment is outweighed by the advantages of the change of environment, as is mandated by ORC 3109.04(E)(1)(a).
[2.] The trial court committed reversable [sic] error in basing it's [sic] child support calculations on Appellant's prior employment without any determination that Appellant was underemployed or that income should be imputed to Appellant as mandated by R.C. 3119.01(C)(11).

         III. LEGAL ANALYSIS

         A. Appellant's First Assignment of Error

         {¶ 7} In his first assignment of error, appellant contends the trial court committed reversible error in changing the residential parent of the child without making the determinations required by R.C. 3109.04(E)(1)(a). For the following reasons, we disagree.

         {¶ 8} The core dispute in this case is whether the trial court may terminate a shared parenting plan and decree and subsequently modify the parental rights and responsibilities under R.C. 3109.04(E)(2) without first finding a change in circumstances under R.C. 3109.04(E)(1)(a). Although a trial court has broad discretion in deciding a custody matter, it "must follow R.C. 3109.04." Myers v. Wade, 10th Dist. No. 16AP-667, 2017-Ohio-8833, ¶ 15. "The question of whether a trial court correctly interpreted and applied a statute is a question of law, and we review it de novo. Id. at ¶ 8, citing State v. Willig, 10th Dist. No. 09AP-925, 2010-Ohio-2560, ¶ 14.

         {¶ 9} R.C. 3109.04 empowers the trial court to allocate the parental rights and responsibilities for the care of a minor child. R.C. 3109.04(A). Pertinent to this appeal, either or both parents of a minor child may file a pleading or motion requesting the court grant both parents shared parental rights and responsibilities for the care of the child and file a plan for the shared parenting of the child. R.C. 3109.04(G). If the parents jointly request shared parental rights and jointly file the plan, the trial court must approve the plan if it is in the best interest of the child. R.C. 3109.04(D)(1)(a)(i). Relevant factors pertaining to the best interest of the child determination and shared parenting are stated in R.C. 3109.04(F). If an R.C. 3109.04(G) motion and plan are approved by the trial court, the trial court may allocate the parental rights and responsibilities for the care of the child to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the child in accordance with the approved plan for shared parenting. R.C. 3109.04(A)(2).

         {¶ 10} On the other hand, if neither parent files a pleading or motion in accordance with R.C. 3109.04(G) or if a submitted shared parenting plan is not in the best interest of the child:

[T]he court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the ...

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