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In re L.M.

Court of Appeals of Ohio, Ninth District, Wayne

December 31, 2019

IN RE: L.M. E.M.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE Nos. 2015 JUV-G 000638 2015 JUV-G 000639

          EDWIN V. HARGATE, Attorney at Law, for Appellant.

          RACHEL HOFFEE, Attorney at Law, for Appellee.

          LEE R. POTTS, Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Appellant Sean M. ("Father") appeals from the judgment of the Wayne County Court of Common Pleas, Juvenile Division. This Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 children.

         {¶5} 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 custodial parent.

         {¶6} 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 the evidence.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         II.

         ASSIGNMENT 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.

         {¶10} 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.

         {¶11} "[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.

         Termination of the Shared Parenting Plan

         {¶12} 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.[1] 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."

         {¶13} 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, ΒΆ 27 ("It ...


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