JOSHUA M. HERRON Appellant
CANDY M. HERRON Appellee
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
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
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.
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.
OF ERROR I
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.
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 ¶
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.
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