from the Franklin County Court of Common Pleas No. 13JU-8624,
Domestic Relations, Juvenile Branch
Plymale & Dingus, LLC, and M. Shawn Dingus, for appellee.
S. Kurek, for appellant.
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.
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
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.
ASSIGNMENTS OF ERROR
6} Appellant assigns the following as trial court
[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).
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 ...