Hynd v. Roesch , 2017 Ohio 7448 ( 2017 )


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  • [Cite as Hynd v. Roesch, 
    2017-Ohio-7448
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    ASHTABULA COUNTY, OHIO
    CARRIE M. HYND,                               :        OPINION
    Plaintiff-Appellant,         :
    CASE NO. 2016-A-0065
    - vs -                                :
    LEVI M. ROESCH,                               :
    Defendant-Appellee.          :
    Appeal from the Ashtabula County Court of Common Pleas, Domestic Relations
    Division, Case No. 2013 DR 00055.
    Judgment: Affirmed in part, reversed in part, and remanded.
    Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., Skylight Office Tower, 1660 West
    Second Street, Suite 660, Cleveland, OH 44113 (For Plaintiff-Appellant).
    William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road,
    Ashtabula, OH 44004 (For Defendant-Appellee).
    CYNTHIA WESTCOTT RICE, P.J.
    {¶1}     Appellant, Carrie M. Hynd (“mother”), appeals from the judgment of the
    Ashtabula County Court of Common Pleas, Domestic Relations Division, denying her
    motion to modify parenting time rights with appellee, Levi M. Roesch (“father”), and
    granting father’s motion to modify parental rights and responsibilities. The trial court’s
    judgment is affirmed in part, reversed in part, and remanded.
    {¶2}   The parties were married on August 2, 2012 and one child was born as
    issue of their marriage, J.R.     On September 24, 2014, the parties were divorced.
    Mother was designated the residential parent and legal custodian of J.R. Father was
    awarded parenting time in accordance with the standard companionship order of the
    trial court.
    {¶3}   On December 2, 2014, mother filed an ex parte petition for domestic
    violence civil protection order; mother additionally filed an emergency motion to modify
    and suspend parenting time.        The ex parte petition was premised upon mother’s
    allegations that father abused J.R. due to bruising observed on the child’s buttocks after
    he returned from visitation with father.      By consent entry, father agreed to have
    parenting time with J.R. at “Rooms to Grow,” a supervisory setting.
    {¶4}   Father subsequently filed, inter alia, a motion to cancel the ex parte civil
    protection order and a memorandum in response to mother’s emergency motion to
    modify and suspend parenting time. These matters were heard on April 29, 2015. At
    the hearing, testimony established that J.R. had received a spanking during the
    visitation for disciplinary reasons.    On June 12, 2015, the court denied mother’s
    emergency motion to modify and granted father’s motion to cancel the ex parte order.
    During the period between the mother’s filings and the June judgment, father’s
    parenting time was severely restricted.
    {¶5}   On October 2, 2015, Mother filed a second petition for domestic violence
    civil protection order based upon an arm injury J.R. sustained during a visit with father.
    Mother noticed the child was favoring his right arm. When questioned about the injury,
    father stated, prior to dropping J.R. off with mother, he took the boy to a park where the
    2
    child fell after exiting a merry-go-round. He stated the child cried for approximately 30
    seconds, but then appeared fine. Dubious of father’s explanation, mother took J.R. to
    the Cleveland Clinic where she stated her concern that the boy was being abused. She
    informed medical staff that the child had a history of bruises on his back and buttocks
    which led to a previous protection order being granted. The medical history did not
    disclose, however, that the order had been dismissed because of insufficient evidence.
    Medical personnel was concerned and admitted J.R. to evaluate the child to determine
    whether the injury was a result of abuse. After being x-rayed, physicians concluded the
    boy suffered from an elbow joint effusion, i.e., swelling within the joint. Physicians
    ultimately concluded the boy suffered no “non-accidental trauma” and there was no
    evidence of a fracture. Notwithstanding this finding, mother continued to maintain, even
    during the hearing in the underlying matter, that J.R.’s arm was broken during the
    incident.
    {¶6}   After a hearing on October 13, 2015, the magistrate determined mother
    failed to establish father committed any act that would have resulted in the child being
    an “abused child.” The magistrate found the playground injury was accidental and the
    child displayed no behavior that would suggest he required medical treatment. The
    magistrate accordingly recommended mother’s petition be denied and the ex parte
    order be vacated. Mother filed no objections to the magistrate’s decision. The trial court
    subsequently adopted the decision.      That judgment was appealed and in Hynd v.
    Roesche, 11th Dist. Ashtabula No. 2015-A-0063, 
    2016-Ohio-7143
    , this court affirmed
    the trial court’s judgment.
    3
    {¶7}   On November 6, 2015, mother filed the underlying motion to modify
    parenting time rights and, on July 26 and 27, 2016, the court held a hearing on that
    motion and father’s February 9, 2015 motion to modify parental rights and
    responsibilities. The trial court heard testimony primarily from mother and father and
    considered the forensic psychological report prepared and submitted by Farshid
    Afsarifard, Ph.D.
    {¶8}   In addition to the evidence already discussed, the court also heard
    testimony that, prior to the filing of the second petition for civil protection order, mother
    began noticing J.R. was losing weight during his visits with father. In June 2015, she
    began a regiment of weighing the child before the visits and after the visits.           She
    additionally began a practice of taking the boy to the pediatrician’s office after visits with
    father, not to consult the physician, but for office personnel to weigh the child. This
    process continued into August 2015 and throughout that time, the boy’s weight did not
    change dramatically; J.R. dropped between a pound and a pound and six ounces at
    most, but on at least one occasion the boy returned to mother heavier than before.
    Moreover, the evidence indicated that, regardless of the minimal weight loss mother
    noticed, J.R. was in a higher percentile for weight throughout this period; at his lowest,
    J.R. was in the 79th percentile and at his highest, the 92nd percentile.
    {¶9}   Furthermore, mother had changed J.R.’s medical provider at least three
    times after the parties’ divorce and, according to father, mother failed to notify him each
    time she changed pediatricians. Mother also took the child to walk-in clinics where no
    appointments were necessary. Father testified these decisions made it difficult for him
    to obtain or even locate the child’s medical records.
    4
    {¶10} Dr. Afsarifard’s report detailed his assessment of the parties’ relative
    personalities and their impressions of the other’s parenting styles as well as the issues
    they had with each other. He gave the parties psychological evaluations and observed
    them interacting with J.R. Ultimately, he determined each parent interacted well with
    the child and the child was attached to them both. He expressed dismay, however, at
    the parties’ obvious inability to communicate effectively and similar inability to make
    compromises for the well being and best interest of their son. He underscored the
    importance of the parties providing the child with consistency and mutual support.
    Given the parties’ resentment toward one another, as well as their passive-aggressive
    way of relating with each other, the doctor was not optimistic that the parties would be
    able to achieve that goal on their own.
    {¶11} Dr. Afsarifard ultimately recommended that the court develop a shared-
    parenting plan that gave father the authority to make medical decisions. He further
    recommended a visitation schedule that was not significantly different than the standard
    schedule already in place. Given the poor state of communication between the parties,
    he recommended they retain a “parent coordinator” to assist them in developing a
    “communication protocol.”     He further recommended the parties obtain individual
    counseling to address the issues surrounding the parties’ relationship.
    {¶12} After considering the evidence and the statutory factors, the trial court
    “substantially overruled” each party’s motion.    The trial court appointed a parenting
    coordinator and set forth that individual’s powers and duties. The trial court modified
    parenting time pursuant to the Ashtabula County Court of Common Pleas Local Rule
    19, which provided for equal division of available parenting time on a “2-2-5-5” day
    5
    rotation, to wit: mother receives child beginning on a Monday and Tuesday; father
    receives the child Wednesday and Thursday; then Mother had the child for the next
    successive five days, followed by father having the child over the next five-day period.
    Parenting time for holidays and other special occasions were also specifically allocated.
    Following the issuance of the order, mother appealed and assigns two errors for our
    review. Her first assignment of error provides:
    {¶13} “The trial court erred in awarding appellee parenting time equivalent in
    duration to time during which appellant as custodial parent has possession of the minor
    child.”
    {¶14} An order of visitation issued by a trial court is also reviewed under an
    abuse of discretion standard. Wren v. Tutolo, 11th Dist. Geauga No.2012-G-3104,
    
    2013-Ohio-995
    , ¶8. Accordingly, a judgment involving the allocation of parental rights
    and responsibilities will not be disturbed save an abuse of discretion. 
    Id.
     The phrase
    “abuse of discretion” is one of art, connoting judgment exercised by a court, which does
    not comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-
    0011, 
    2010-Ohio-2156
    , ¶24.        In determining whether the trial court has abused its
    discretion, a reviewing court is not to weigh the evidence, but, rather, must determine
    from the record whether there is some competent, credible evidence to sustain the
    findings of the trial court. Clyborn v. Clyborn, 
    93 Ohio App.3d 192
    , 196 (3d Dist.1994).
    {¶15} Modifications to parenting time or visitation are governed by R.C.
    3109.051(D). See Braatz v. Braatz, 
    85 Ohio St.3d 40
    , 44-45 (1999). The court must
    consider the specific factors set forth under the statute as well as any other factor in the
    child’s best interest when modifying parenting time. Id. at 45.
    6
    {¶16} Mother first asserts the trial court erred when it made various findings
    pursuant to R.C. 3109.051(D). Mother maintains that the trial court erred in finding
    father has flexibility in his job that permits him to be available more than most fathers.
    Mother contends father manages an auto-body shop as well as a tree service with his
    parents. Both jobs are full-time positions which, in mother’s view, requires father to
    work more than others. With this in mind, as well as the court’s finding that mother is
    available “virtually any time for parenting,” mother maintains the court’s decision is
    unsupported by the evidence. We do not agree.
    {¶17} During the hearing, evidence was adduced that, even though father
    worked at the garage and for a tree service, he nevertheless does enjoy flexibility
    because they are family businesses. Moreover, there was testimony that J.R. enjoyed
    spending time with his paternal grandparents. And the court found that it was in the
    child’s best interest to spend time with his grandparents, who were available for
    babysitting if father was working. Even though mother is arguably more available for
    parenting than father, this fact does not undermine the court’s findings.
    {¶18} Next, Mother asserts the trial court’s finding that she has used legal
    mechanisms to restrict father’s visitation time is not supported by the record. Mother
    maintains that while she did seek domestic violence civil protection orders, she sought
    them in good faith, based upon her concerns for the child. Moreover, she asserts that
    even though her petitions were found to lack merit, this does not imply the actions
    prompting her filings were “innocent or without fault.”
    {¶19} The court found “[t]he plaintiff has used the court process to restrict the
    defendant’s parenting time. She has not cooperated in allowing him any extended time
    7
    under the current parenting order, and is now asking the Court to reduce his available
    parenting time.” The court’s findings are supported by the record.
    {¶20} In filing the ex parte domestic relations civil protection orders, mother’s
    goal was to prevent father from seeing the child. While mother’s concerns may have
    been prompted by her subjectively legitimate perceptions, this does not negate the fact
    that her actions significantly compromised father’s ability to visit the child, despite
    father’s otherwise reasonable explanations for J.R.’s injuries. And, in light of the court’s
    denial of the petitions, as well as the hospital’s determination that the child suffered “no
    non accidental trauma” when he injured his arm, one can conclude that the child’s
    injuries were reasonably explained and, in effect, “innocent.”
    {¶21} Moreover, mother admitted she refused to allow father extended parenting
    time in the summer and would continue to do so until the child was in school. And,
    mother’s motion before the court expressly sought to further limit father’s visitation.
    Mother’s arguments are without merit.
    {¶22} Mother next asserts the trial court abused its discretion in modifying the
    previous visitation order because it relied upon Dr. Afsarifard’s report in certain
    respects, but did not follow the doctor’s recommendation for visitation. Dr. Afsarifard’s
    recommendations were considered and, in some instances followed.                The court,
    however, was not obligated to adopt each and every recommendation advanced in the
    doctor’s report. The court determined equal parenting was in the best interest of the
    child and, given the circumstances of this case, it did not abuse its discretion in drawing
    this conclusion.
    {¶23} Appellant’s first assignment of error lacks merit.
    8
    {¶24} Appellant’s second assignment of error provides:
    {¶25} “The trial court erred in placing with appellee the authority and
    responsibility for medical decision making for the minor child.”
    {¶26} Mother contends the trial court erred when it conferred the responsibility
    for medical-care decision making on father because, as residential parent and legal
    custodian, she is entitled to make such decisions.
    {¶27} The original decree, allocating parenting rights and responsibilities, did not
    set forth an express directive recognizing mother as the parent with the authority to
    make medical-care decisions for J.R. Because, however, the decree denoted mother
    residential parent and legal custodian, and the decree was not a shared-parenting
    order, we may reasonably infer she was the parent with that right and responsibility.
    {¶28} Pursuant to R.C. 3109.04(E)(1)(a), a trial court cannot modify an existing
    allocation of parenting rights and responsibilities “unless it finds, based on facts that
    have arisen since the prior decree or that were unknown to the court at the time of the
    prior decree, that a change has occurred in the circumstances of the child, the child’s
    residential parent, or either of the parents subject to a shared parenting decree, and that
    the modification is necessary to serve the best interest of the child.” Also, “before a
    modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a
    threshold determination that a change in circumstances has occurred.” Gunderman v.
    Gunderman, 9th Dist. Medina No. 08CA0067-M, 
    2009-Ohio-3787
    , ¶9 citing Fisher v.
    Hasenjager, 
    116 Ohio St.3d 53
    , 
    2007-Ohio-5589
    , syllabus. The Ohio Supreme Court
    has held that the requisite change of circumstances “must be a change of substance,
    not a slight or inconsequential change.” Davis v. Flickinger, 
    77 Ohio St.3d 415
     (1997).
    9
    {¶29} In its judgment entry, the trial court concluded, without supportive analysis,
    that “[t]he authority and responsibility for medical decision making is placed with the
    defendant/father. He shall inform the plaintiff/mother of all appointments made for the
    child and assure that she has access to all the child’s records.” R.C. 3109.04(E)(1)(a)
    states that a court may not modify the parties’ parental rights and responsibilities
    without finding a change of circumstance occurred.        Although the judgment entry
    included adequate facts that would have supported the finding, the court failed to find a
    change of circumstance mandated by R.C. 3109.04(E)(1)(a).                The conclusion
    reallocating the right and responsibility for medical decisions, therefore, was not
    supported by the necessary statutory findings.
    {¶30} Given these points, we hold the trial court erred in modifying the parental
    rights and responsibilities as they pertain to the child’s medical decisions without
    making the statutory findings set forth under R.C. 3109.04(E)(1)(a). Accordingly, the
    matter must be reversed and remanded for the trial court to consider this issue.
    {¶31} Mother’s second assignment of error has merit.
    {¶32} For the foregoing reasons, the judgment of the Ashtabula County Court of
    Common Pleas, Domestic Relations Division, is affirmed in part, reversed in part, and
    remanded.
    TIMOTHY P. CANNON, J.,
    THOMAS R. WRIGHT, J.,
    concur.
    10
    

Document Info

Docket Number: 2016-A-0065

Citation Numbers: 2017 Ohio 7448

Judges: Rice

Filed Date: 9/5/2017

Precedential Status: Precedential

Modified Date: 4/17/2021