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Premier v. Premier

Court of Appeals of Ohio, Fifth District, Stark

June 26, 2019

GARY PREMIER Plaintiff-Appellant
NICOLE PREMIER Defendant-Appellee

          Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2012DR00311

          For Plaintiff-Appellant DOUGLAS BOND.

          For Defendant-Appellee GREGORY RUFO.

          Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.


          GWIN, P.J.

         {¶1} Appellant appeals the September 25, 2018 judgment entry of the Stark County Common Pleas Court, Domestic Relations Division.

         Facts & Procedural History

         {¶2} Appellant Gary Premier ("Father") filed a complaint for divorce against appellee Nicole Premier ("Mother") on March 13, 2012. The trial court issued a judgment entry and decree of divorce on December 3, 2012. The parties agreed that Mother would be the custodial parent of the parties' two children, A.P., born October 20, 1998 and K.P., born August 23, 2004. Father had parenting time with the children weekly to accommodate his work schedule. The trial court also ordered the children to continue counseling.

         {¶3} In May of 2014, Father filed a motion for reallocation of parental rights and responsibilities alleging that there was a change of circumstances because Mother continuously encumbered his ability to maintain his relationship with his children. In July of 2014, Father filed an amended motion for reallocation of parental rights and responsibilities. Father alleged that: Mother moved the children out of the marital residence at the last minute; the children were homeless; Mother had dated several different men; Mother was banned from the counselor's office due to her behavior; and Mother allowed the children not to attend school, affecting their grades. The magistrate found no change of circumstances pursuant to R.C. 3109.04(E)(1)(a). Father filed objections to the magistrate's decision. The trial court overruled Father's objections, adopted, and approved the magistrate's decision. Father appealed to this Court, arguing the trial court erred in finding there was no change of circumstances. In Premier v. Premier, 5th Dist. Stark No. 2015CA00030, 2016-Ohio-673, we overruled appellant's assignments of error and found the trial court did not abuse its discretion in finding no change in circumstances.

         {¶4} A.P. turned eighteen on October 20, 2016 and graduated from high school in May of 2017.

         {¶5} On February 6, 2018, Father filed a motion for reallocation of parental rights and responsibilities with regards to K.P. and alleged that Mother moved from K.P.'s school district and lives a nomadic lifestyle. Mother filed a memorandum in opposition and for sanctions on February 21, 2018. On March 20, 2018, Melissa Pitinii ("Pitinii") was re-appointed as guardian ad litem for K.P.

         {¶6} The trial court conducted a hearing on Father's motion on August 20, 2018. Pitinii testified Exhibit 1 is her report and recommendation that was filed on August 13, 2018. In her report, Pitinii states it is in K.P.'s best interest for Mother to remain the residential parent and legal custodian of K.P., but with modification of Father's parenting time as follows: allow Father to pick up K.P. Monday evening at 8:00 p.m. for the start of his parenting time; Father's one week-end per month should begin Friday at 6:00 p.m.; and Father should also have the fourth weekend in the month from Friday at 6:00 p.m. until Sunday at 6:00 p.m. when there are five full week-ends in a month. Pitinii noted that as of June of 2018, Mother lives in a home in Plain Township.

         {¶7} Pitinii testified Mother lived with her husband Brian Horning ("Horning") in Canton South in April of 2018, while K.P. went to Oakwood Middle School in Plain Township. Pitinii contacted the school, who told her Mother recently contacted the school to tell them they were living outside of the district but that they were moving back to the district shortly. Pitinii believes Mother has help transporting K.P. to school from K.P.'s grandmother and maternal aunt. Pitinii does not believe it is concerning for K.P. to ride the bus to and from her grandmother's house.

         {¶8} Father and his wife, Gina Premier, showed Pitinii a video showing K.P., who was thirteen years old at the time, driving on a fairly busy road with Mother in the passenger seat and one of K.P.'s friends in the back seat videotaping K.P. driving. Pitinii does not find it appropriate for a parent to allow a thirteen year old to drive a vehicle on a busy street.

         {¶9} Pitinii recommends slight modifications to the parenting schedule because Father no longer works midnights and now works the day shift. Pitinii testified Mother and Father are incapable of shared parenting because they cannot share and they barely communicate. While Pitinii believes Mother has made some poor decisions, Pitinii does not think they rise to the level of switching custody.

         {¶10} As to K.P. moving out of the school district, Pitinii testified it did not impact K.P. academically, as her grades are fabulous and she is very good student. When Mother was using grandmother's address for the school, Mother and K.P. were spending some nights at the grandmother's house and some nights at Horning's house. Pitinii stated while this was a little hectic, K.P. did not seem to have a problem with it and it certainly did not impact her grades. Pitinii does not think Mother was honest with her about when Mother notified the school about the living situation. While Father expressed his concern to Pitinii about K.P. living out of a bag and not having a spot to call her own, Pitinii stated K.P. was fine with it and it did not bother her. Pitinii testified K.P. doesn't want to upset either one of her parents. Pitinii stated while K.P. is old enough to understand about the court proceedings, Pitinii does not think K.P. needs to read the pleadings.

         {¶11} Pitinii testified she applied the factors in R.C. 3109.04 as part of her analysis and she recommends Mother remain the residential parent, in spite of the concerns raised by Father. Pitinii stated it has never been an issue for Mother to get K.P. to school on time or any other transportation issues. K.P. told Pitinii the driving happened one time and did not happen again. Pitinii testified when the parents are court-involved, it is very stressful for K.P. and K.P. would really just like her parents to quit filing motions. ...

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