IN RE: L.M. E.M.
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE Nos. 2015 JUV-G 000638 2015 JUV-G 000639
V. HARGATE, Attorney at Law, for Appellant.
HOFFEE, Attorney at Law, for Appellee.
POTTS, Guardian ad Litem.
DECISION AND JOURNAL ENTRY
J. CARR, JUDGE.
Appellant Sean M. ("Father") appeals from the
judgment of the Wayne County Court of Common Pleas, Juvenile
Division. This Court affirms.
Father and Appellee Samantha Y. ("Mother") never
married. During their relationship, Mother gave birth to two
children, L.M. (born February 26, 2013), and E.M. (born March
3, 2015). Mother and Father ended their relationship in late
2015. Custody proceedings were initially filed in Lorain
County in late 2015. The record reflects that the parties
entered into an agreed shared parenting plan in July 2016,
which was filed in the court. Mother was named the
residential parent for school purposes. Father was to receive
parenting time every weekend of every month, aside from the
fourth weekend. In addition, Father was to receive four weeks
of parenting time in the summer. Apart from holidays, which
were separately designated, the children would be with Mother
at all other times. Father was ordered to pay $400.00 per
month in child support.
Subsequent to the adoption of the shared parenting plan, both
parties married. Mother married Joshua Y.
("Stepfather") in September 2016 and Father married
Teresa M. ("Stepmother") in September 2017.
Following their marriages, Mother moved to Creston in Wayne
County, and Father moved to Willowick in Lake County.
Stepmother's two children also live with Father at the
house in Willowick.
In August 2017, following a request by Mother, the case was
transferred to Wayne County. On August 17, 2017, Father filed
a motion to "Change Custody - Making Father the
Custodial Parent[.]" Therein, Father requested an order
"changing custody to make the Father the custodial
parent of the child." Inter alia, Father alleged that
Mother failed to keep the children up-to-date on their
vaccinations, had not taken the children to a dentist,
refused to list Father as the children's father at the
children's doctor's office, and had denied him
visitation. That same day, Father also filed a motion
concerning the alleged denial of parenting time. In September
2017, Mother filed a motion to terminate the shared parenting
plan and designate Mother as the residential parent of the
A guardian ad litem ("GAL") was appointed. After
conducting home visits and reviewing various records, the GAL
prepared a report concluding that it was in the
children's best interest for Father to be made the
The matter proceeded to a hearing. After which, on October
15, 2018, the magistrate issued a magistrate's decision
denying Father's motion, granting Mother's motion,
and awarding custody to Mother. On October 24, 2018, the
trial court entered a judgment entry reiterating the decision
of the magistrate. On October 29, 2018, Father filed
objections to the magistrate's decision. Father argued
that the magistrate abused its discretion in denying
Father's motion to modify the shared parenting agreement
as the trial court failed to follow R.C. 3109.04(E)(1)(a),
that the magistrate failed to follow R.C. 3109.04(E)(2)(c) in
terminating the shared parenting plan, and that the
magistrate's decision to deny Father's motion and to
terminate the shared parenting plan was against the weight of
Prior to the trial court ruling on the objections, Father
filed a notice of appeal to this Court (appeal number
18AP0055). Therein, Mother filed a motion to dismiss and
Father filed a motion to remand the matter to the trial court
so that the trial court could rule on objections. This Court
granted the motion to remand the matter.
After the transcript was filed in the trial court, Father
filed supplemental objections to the magistrate's
decision. Mother then filed a memorandum in opposition to
Father's objections and supplemental objections. On
February 1, 2019, the trial court issued an entry overruling
Father's objections. In so doing, the trial court
determined that both parents' motions required the trial
court to apply R.C. 3109.04(E)(1) and determine whether there
was a change of circumstances. The trial court found that
there had been a change of circumstances and that it was in
the best interest of the children that Mother be granted sole
legal custody. The trial court stated it was bound to
consider the factors in R.C. 3109.04(F)(1) and 3109.04(F)(2)
and then summarized its analysis of the factors.
Father filed a notice of appeal from that entry (appeal
number 19AP0014) and the two cases were consolidated. Father
has raised two assignments of error for our review. To
facilitate our analysis, we will address Father's
assignments of error out of sequence.
OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FAILED TO FOLLOW R.C. 3109.04(E)(2)(C) AND GRANTED
MOTHER'S MOTION TO TERMINATE THE PARTIES['] SHARED
PARENTING AGREEMENT WITHOUT DETERMINING WHETHER SUCH
TERMINATION IS IN THE BEST INTERESTS OF THE CHILDREN; AND
DESIGNATING MOTHER THE RESIDENTIAL PARENT; AND WHICH IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Father argues in his second assignment of error that the
trial court failed to comply with R.C. 3109.04(E)(2) in
terminating the shared parenting plan and that its decision
to name Mother the residential parent and legal custodian of
the children was against the manifest weight of the evidence.
"[W]e generally review a trial court's action on a
magistrate's decision for an abuse of discretion, but do
so with reference to the nature of the underlying
matter." (Internal quotations and citations omitted.)
Brosky v. Krebs, 9th Dist. Lorain No. 17CA011161,
2018-Ohio-5261, ¶ 6. "This Court reviews the trial
court's termination of a shared parenting plan for an
abuse of discretion." (Internal quotations and citation
omitted.) Sindelar v. Gall, 9th Dist. Summit No.
25022, 2010-Ohio-1960, ¶ 8. Further, "[a] trial
court possesses broad discretion with respect to its
determination of the allocation of parental rights and
responsibilities, and its decision will not be overturned
absent an abuse of discretion." Stahl v. Stahl,
9th Dist. Summit No. 27876, 2017-Ohio-4170, ¶ 4. Thus,
the trial court's determination will not be disturbed
unless the court's attitude was unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). "Even so, when this Court must
determine whether the trial court has correctly applied the
law in a given case, we review such questions of law de
novo." In re B.I.W., 9th Dist. Wayne No.
18AP0028, 2018-Ohio-4545, ¶ 11.
of the Shared Parenting Plan
The heart of Father's argument is that the trial court
failed to conduct the best-interest analysis outlined in R.C.
3109.04(E)(2) in terminating the shared parenting plan and
naming Mother the residential parent. However, the trial
court did conduct a best-interest analysis in its judgment
entry overruling Father's objections. It is apparent from
considering the whole of that entry that the trial court
found: (1) that a change of circumstances had occurred; (2)
that terminating the shared parenting plan was in the best
interest of the children; and (3) that it served the best
interest of the children to name Mother the sole residential
parent. While the trial court did not expressly state that
terminating the shared parenting plan was in the best
interest of the children, the trial court did specifically
acknowledge that termination of the shared parenting plan
involved a consideration of the best interest of the
children. It then concluded its analysis with a
finding that "the Court concurs with the
Magistrate's determination that it is in the
children's best interest to be placed in the sole legal
custody of Mother."
Further, even though the trial court did apply R.C.
3109.04(E)(1)(a), which involves additional
considerations along with a best-interest analysis,
see R.C. 3109.04(E)(1)(a), as opposed to R.C.
3109.04(E)(2), Father has not explained how doing so resulted
in reversible error when the trial court did undertake a
best-interest analysis, and it is not this Court's duty
to develop an argument for him. See App.R. 16(A)(7);
Stowe v. Chuck's Automotive Repair, LLC, 9th
Dist. Summit No. 29017, 2019-Ohio-1158, ¶ 27 ("It