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Grover v. Dourson

Court of Appeals of Ohio, Twelfth District, Preble

June 24, 2019

NEERU GROVER, Appellee,
v.
STEPHEN DOURSON, Appellant.

          APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 15-DR-6532

          Rogers & Greenberg, LLP, L. Anthony Lush, for appellee

          Kirkland & Sommers Co., LPA, Craig M. Sams, for appellant

          OPINION

          M. POWELL, J.

         {¶ 1} Appellant, Stephen E. Dourson ("Father"), appeals from the decision of the Preble County Court of Common Pleas, Domestic Relations Division, designating appellee, Neeru Grover ("Mother"), residential parent and sole legal custodian of the parties' minor children, and awarding attorney fees to Mother. For the reasons outlined below, we affirm in part and reverse in part.

         {¶ 2} Father and Mother were married in Ludhiana, Punjab, India on October 25, 2007. At the time of the marriage, Father was 53 years old and Mother was 33 years old. After marrying, Mother moved to the United States and lived with Father at his home in Gratis, Ohio. The couple have two children born issue of the marriage, D.D. and E.D.

         {¶ 3} During the marriage, Father worked as an engineer with a degree in mechanical engineering and a master's degree in manufacturing management. Mother worked part-time in cosmetology, but primarily took care of the children.

         {¶ 4} Disagreements arose between the parties leading to Mother, and then Father, filing for divorce in early 2015. The parties' competing complaints were subsequently consolidated by the trial court and a guardian ad litem ("GAL") was appointed for D.D. and E.D.

         {¶ 5} Mother and Father submitted a proposed decree of divorce wherein the parties stipulated to many of the decree's terms. However, Father contested several of the decree's provisions, including the allocation of parental rights and responsibilities; the proposed parenting time schedule; restrictions on the children's international travel; designation of the children as father's life insurance policies' beneficiaries; and responsibility for mother's attorney fees. Similarly, Mother disagreed with the parenting schedule and the limitations imposed on the children's international travel.

         {¶ 6} A seven-day hearing was held regarding the contested provisions. Because Mother maintains a limited understanding of the English language, an accredited Hindi interpreter assisted with Mother's participation in the proceedings. Due to the interpreter's schedule, the seven-day hearing took nearly ten months to complete.

         {¶ 7} In July 2017, the magistrate issued a decision. In his decision, the magistrate designated Mother the residential parent and sole legal custodian of D.D. and E.D. He further found that Father would have parenting time pursuant to the court's standard guidelines, with the exception of certain holidays observed by Mother and a deviation during the children's summer vacation and spring break. With regard to the children's international travel, the magistrate indicated that unless Mother and Father agreed otherwise, the children's passports would be held by the GAL, and would not be released to either of the parties without consent of both Mother and Father or an order of the court.

         {¶ 8} In light of Father's age, the magistrate further ordered Father to designate the children the beneficiaries of at least $250, 000 of life insurance benefits on Father's life, during the pendency of father's child support obligation. Alternatively, the magistrate indicated Father could maintain his trust as the beneficiary of the policies, as long as certain provisions were in place to provide for the children.

         {¶ 9} The magistrate also awarded attorney's fees to Mother, which he apportioned according to the respective incomes of Mother and Father. Initially, the magistrate ordered Father to pay 74% of Mother's attorney fees in the amount of $44, 678.24.

         {¶ 10} Father filed objections to the magistrate's decision. Ultimately, with an exception not relevant to the instant appeal, the trial court adopted the magistrate's decision.

         {¶ 11} Thereafter, Mother filed a motion for interim, additional and ongoing attorney fees, requesting additional attorney fees for services provided subsequent to the seven-day hearing before the magistrate. The trial court found Mother's motion to be well-taken. The trial court, using the same formula, awarded Mother additional attorney fees in the amount of $17, 332.65, for a total fee award of $62, 010.89. Father now appeals, raising five assignments of error.

         {¶ 12} Assignment of Error No. 1:

         {¶ 13} THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ADOPT A SHARED PARENTING PLAN.

         {¶ 14} Father contends the trial court abused its discretion when it refused to adopt a shared parenting plan, and instead designated Mother the residential parent and sole legal custodian. Specifically, Father claims the trial court's determination with regard to shared parenting is unsupported by the evidence presented at the hearing.

         {¶ 15} As an initial note, "the power of the trial court to exercise discretion is peculiarly important in proceedings involving the custody and welfare of children." Kenney v. Kenney, 12th Dist. Warren No. CA2003-07-078, 2004-Ohio-3912, ¶ 6. "The discretion a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination has on the lives of the parties concerned." Id; Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997). Therefore, an appellate court's standard of review in custody matters is abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). An abuse of discretion is more than an error of law or judgment; it implies the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶ 16} R.C. 3109.04(B)(1) states that a trial court must consider a child's best interests when allocating parental rights and responsibilities. See In re A.B., 12th Dist. Butler No. CA2009-10-257, 2010-Ohio-2823, ¶ 25. In considering a child's best interests, the trial court must consider the factors set forth in R.C. 3109.04(F)(1), which include the following: the wishes of the parents; the child's wishes expressed to the court; the child's interactions and interrelationships with parents, siblings, and other persons who may significantly affect the child's best interest; the child's adjustment to home, school, and community; the mental and physical health of all persons involved in the situation; the parent more likely to honor and facilitate visitation; whether one parent has denied the other parenting time; whether either parent has failed to make all child support payments; and whether either parent has established or is planning to establish a residence outside of Ohio.

         {¶ 17} When determining whether shared parenting is in the best interest of the children, the trial court must consider the factors set forth in R.C. 3109.04(F)(1), as well as the ability of the parents to cooperate and make decisions jointly; the ability of each parent to encourage love, affection, and contact with the other parent; any history of, or potential for, child abuse, domestic violence, or parental kidnapping by either parent; the geographic proximity of the parents to each other; and the recommendation of the GAL. R.C. 3109.04(F)(2). "While no factor in R.C. 3109.04(F)(2) is dispositive, effective communication and cooperation between the parties is paramount in successful shared parenting." Earley v. Earley, 12th Dist. No. CA2012-01-001, 2012-Ohio-4772, ¶ 26.

         {¶ 18} In the instant case, Father argues the trial court erred by failing to impose shared parenting because the evidence presented demonstrates shared parenting would be successful and, in the children's, best interest.

         {¶ 19} In rejecting Father's shared parenting plan and designating Mother the legal custodian and residential parent of the children, the trial court considered each of the relevant best interest factors in light of the evidence presented at trial. In his decision, the magistrate placed considerable weight on the testimony and reports of the GAL.

         {¶ 20} The trial court found the GAL spent considerable time investigating the circumstances of the case and made a thorough investigation. The GAL's investigation included meeting with the children, Mother, and Father, and interviewing personnel from D.D.'s school, Father's family members, and the children's pediatrician. The GAL memorialized her observations and recommendation into three reports. Ultimately, she recommended that shared parenting was not appropriate in this case, and that she believed custody should be with Mother. The GAL indicated the "real ...


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