Court of Appeals of Ohio, Twelfth District, Preble
FROM PREBLE COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS
DIVISION Case No. 15-DR-6532
& Greenberg, LLP, L. Anthony Lush, for appellee
Kirkland & Sommers Co., LPA, Craig M. Sams, for appellant
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
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
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