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Herron v. Herron

Court of Appeals of Ohio, Ninth District, Summit

December 11, 2019

JOSHUA M. HERRON Appellant
v.
CANDY M. HERRON Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2014-09-2539

          WILLIAM A. VASILIOU, II, Attorney at Law, for Appellant.

          CHANDRA M. MUSTER, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, JUDGE

         {¶1} Joshua Herron appeals a judgment of the Summit County Court of Common Pleas, Domestic Relations Division. For the following reasons, this Court vacates the judgment of the trial court.

         I.

         {¶2} Joshua and Candy Herron married in 2010 and had a child in 2012. They divorced in 2014. According to the parties' shared parenting plan, they agreed to equally divide the child's time with each parent. When the child reached school age, Father agreed to pay all costs associated with the child attending a private school. He was also designated the primary health care insurer of the child.

         {¶3} In October 2017, Mother moved for a modification of parental rights, alleging that Father had changed the child's doctor and cancelled her counseling sessions. After the child began to see a new counselor, Father also moved for a reallocation of parental rights and responsibilities. Following an evidentiary hearing before a magistrate, the magistrate issued a decision that ordered the child to live primarily with Mother, made her the residential parent for school purposes, and made her the primary health care insurer. The magistrate also ordered Father to pay child support to Mother. The trial court adopted the magistrate's decision and made it an order of the court that same day. Father objected to the magistrate's decision, but the trial court overruled his objections. Father has appealed, assigning four errors. We will address some of the assignments of error together.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY MODIFYING MR. HERRON'S COMPANIONSHIP SCHEDULE FROM EQUAL TIME WITH THE MINOR CHILD TO TRIAL COURT'S STANDARD ORDER.

         {¶4} Father argues that the trial court incorrectly modified his companionship time with the child. His first argument is that the court applied the wrong subsection during its analysis and, thus, failed to consider whether there had been a change in the child's or parents' circumstances. In Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, the Ohio Supreme Court discussed the type of changes to a shared parenting plan that are allowed under Revised Code Section 3109.04(E)(1)(a) compared to Section 3109.04(E)(2)(b). It explained that "the designation of residential parent and legal custodian can be modified under R.C. 3109.04(E)(1)(a)" while Section 3109.04(E)(2)(b) "allows only for the modification of the terms of a shared parenting plan." Id. at ¶ 27. A modification under Section 3109.04(E)(1)(a) may only be made if there has been a change in circumstances. Id. at ¶ 33, quoting R.C. 3109.04(E)(1)(a). A modification under Section 3109.04(E)(2)(b), however, "requires only that the modification of the shared-parenting plan be in the best interest of the child." Id. In Gunderman v. Gunderman, 9th Dist. Medina No. 08CA0067-M, 2009-Ohio-3787, this Court concluded that a change in parenting time under a shared parenting plan is a modification of the allocation of parental rights and responsibilities and, therefore, "must be considered under R.C. 3109.04(E)(1)(a)." Id. . at ¶ 23.

         {¶5} Father argues that both the magistrate and trial court failed to determine whether a change in circumstances had occurred. We conclude, however, that Father has forfeited his argument. Civil Rule 53(D)(3)(b)(iv) provides that, "[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)." Father timely objected to the magistrate's decision and supplemented his objections after a transcript of the proceedings was available. He did not include in his objections that the magistrate failed to find a change of circumstances. "The failure to raise this matter before the trial court deprived the court of an opportunity to correct any errors and forfeits the right to challenge those issues on appeal." Ilg v. Ilg, 9th Dist. Summit No. 23987, 2008-Ohio-6792, ¶ 6 (concluding that parent forfeited his change-of-circumstances argument because he did not "include an objection to the magistrate's failure to find a change of circumstances."). Father has also not argued that the error was plain, and we will not create such an argument for him. See Stevens v. Stevens, 9th Dist. Medina No. 17CA0084-M, 2019-Ohio-264, ¶ 17.

         {¶6} Father's second argument is that the facts that the trial court relied upon were inadequate to justify an alteration of the companionship schedule. Section 3109.04(E)(1)(a) provides that a court shall not modify the allocation of parental rights and responsibilities for the care of children unless it finds a change of circumstances "and that the modification is necessary to serve the best interest of the child." In applying these standards, "the court shall retain * * * the prior shared parenting decree, unless a modification is in the best interest of the child and * * * [t]he harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to ...


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