In re K.M.L. , 105 N.E.3d 509 ( 2018 )

[Cite as In re K.M.L., 2018-Ohio-344.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: K.M.L. C.A. No. 17AP0009
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 12-1354-CCV
DECISION AND JOURNAL ENTRY
Dated: January 29, 2018
CARR, Judge.
{¶1} Appellant Samantha Fosen (“Mother”) appeals the decision of the Wayne County
Court of Common Pleas, Juvenile Division, which expanded the parenting time of Appellee
Derek Richardson (“Father”) with his son, K.M.L. (d.o.b. March 22, 2011). This Court affirms.
I.
{¶2} Mother and Father have never been married and no longer have a relationship.
Mother has always had custody of K.M.L. In 2012, Father filed a motion seeking unsupervised
visitation and a motion for the adoption of a shared parenting plan. Ultimately, in 2013, the
parties entered into an agreed judgment entry which provided that Mother would be named the
residential parent and legal custodian of K.M.L. Father was initially to have limited parenting
time, which was to expand to the standard order provided for in the local rules when K.M.L.
turned three years old.
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{¶3} In February 2016, Father filed a motion to, inter alia, modify parental rights and
responsibilities. That matter proceeded to a trial before a magistrate, at the beginning of which
Father indicated that his motion was limited to seeking increased parenting time with K.M.L.
Following the trial, the magistrate issued a decision granting Father’s motion, concluding it was
in the best interests of K.M.L. The magistrate found that Father’s visitation would “conform to
the times Mother is off work[,]” that weekend visitation would continue every other weekend
from Friday to Sunday, that the drop-off/pick-up would be changed to the parents’ residences on
weekends, and to school during the week when school was in session, and also provided that
Father’s midweek parenting time would be modified so that Father would have overnight
parenting time with K.M.L. every other Monday and every other Thursday. The trial court
issued a judgment entry adopting the magistrate’s conclusions. Both parties filed objections,
some of which related to confusion over the times for parenting time. The trial court remanded
the matter for the magistrate to conduct a status conference. Following the status conference, the
magistrate issued a decision amending the prior decision. Apparently, at that status conference,
the magistrate was provided with information that Mother was no longer employed and that
Father’s work schedule had changed.1 The magistrate also noted that the prior decision did not
indicate when the new schedule of parenting time would commence. The magistrate removed
the reference to Father’s parenting time conforming to when Mother was off work and specified
the dates upon which the new schedule would commence. Finally, the magistrate indicated that
all other orders not addressed should remain the same. The trial court entered judgment the
following day, adopting the magistrate’s conclusions. Mother filed additional objections, and,
1
A transcript of the status conference is not part of this Court’s record.
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following the filing of the transcript of the trial, supplemental objections, which the trial court
ultimately overruled.
{¶4} Mother has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT,
MS. FOSEN, AND ABUSED ITS DISCRETION WHEN THE TRIAL COURT
GRANTED THE APPELLEE, MR. RICHARDSON’S MOTION TO EXPAND
VISITATION WITH THE PARTIES’ MINOR CHILD.
{¶5} Mother argues in her sole assignment of error that the trial court abused its
discretion in overruling her objections to the magistrate’s decision and granting Father expanded
parenting time with K.M.L. Mother maintains that Father failed to meet his burden to
demonstrate that the new parenting time order was in K.M.L.’s best interests. We do not agree.
{¶6} “[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.) Harrison v. Lewis, 9th Dist. Summit No. 28114, 2017-Ohio-
275, ¶ 40. “We review a decision regarding parenting time for an abuse of discretion.” Id.,
quoting In re C.F., 9th Dist. Wayne No. 14AP0053, 2015-Ohio-5537, ¶ 16, quoting Pirkel v.
Pirkel, 9th Dist. Lorain No. 13CA010436, 2014-Ohio-4327, ¶ 9. “[I]n the absence of a shared
parenting plan, motions to modify parenting time are analyzed under R.C. 3109.051 * * *.”
Pirkel at ¶ 6. “When a trial court determines parenting time under R.C. 3109.051, it must do so
consistent with the best interests of the children involved with consideration of the factors
mentioned in R.C. 3109.051(D).” Id. at ¶ 9. “A trial court need not make explicit reference to
these factors provided that it is apparent from the record that the factors were considered.” Id.
{¶7} R.C. 3109.051(D) provides:
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In determining whether to grant parenting time to a parent pursuant to this section
or section 3109.12 of the Revised Code or companionship or visitation rights to a
grandparent, relative, or other person pursuant to this section or section 3109.11
or 3109.12 of the Revised Code, in establishing a specific parenting time or
visitation schedule, and in determining other parenting time matters under this
section or section 3109.12 of the Revised Code or visitation matters under this
section or section 3109.11 or 3109.12 of the Revised Code, the court shall
consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or affinity, and with
the person who requested companionship or visitation if that person is not a
parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance
between those residences, and if the person is not a parent, the geographical
location of that person’s residence and the distance between that person’s
residence and the child’s residence;
(3) The child’s and parents’ available time, including, but not limited to, each
parent’s employment schedule, the child’s school schedule, and the child’s and
the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of
this section, regarding the wishes and concerns of the child as to parenting time
by the parent who is not the residential parent or companionship or visitation by
the grandparent, relative, or other person who requested companionship or
visitation, as to a specific parenting time or visitation schedule, or as to other
parenting time or visitation matters, the wishes and concerns of the child, as
expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time and to
facilitate the other parent’s parenting time rights, and with respect to a person who
requested companionship or visitation, the willingness of that person to
reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been
convicted of or pleaded guilty to any criminal offense involving any act that
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resulted in a child being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an abused child or a
neglected child, previously has been determined to be the perpetrator of the
abusive or neglectful act that is the basis of the adjudication; and whether there is
reason to believe that either parent has acted in a manner resulting in a child being
an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a
parent, whether the person previously has been convicted of or pleaded guilty to
any criminal offense involving any act that resulted in a child being an abused
child or a neglected child; whether the person, in a case in which a child has been
adjudicated an abused child or a neglected child, previously has been determined
to be the perpetrator of the abusive or neglectful act that is the basis of the
adjudication; whether either parent previously has been convicted of or pleaded
guilty to a violation of section 2919.25 of the Revised Code involving a victim
who at the time of the commission of the offense was a member of the family or
household that is the subject of the current proceeding; whether either parent
previously has been convicted of an offense involving a victim who at the time of
the commission of the offense was a member of the family or household that is
the subject of the current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe that the person
has acted in a manner resulting in a child being an abused child or a neglected
child;
(13) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent’s right to
parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish
a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a
parent, the wishes and concerns of the child’s parents, as expressed by them to the
court;
(16) Any other factor in the best interest of the child.
{¶8} On appeal, Mother essentially argues that Father failed to demonstrate that the
order of the court which granted Father “four midweek overnight visits per month” was in the
best interests of K.M.L.
{¶9} We note that in addition to the testimony discussed below, following the initial
magistrate’s decision, upon order of the trial court, the magistrate also held a status conference
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with the parties’ counsel and the GAL, which appears to have resulted in the magistrate
obtaining additional information about Mother’s and Father’s schedules. That information
appears to have included evidence that Mother was no longer working. There is no transcript of
this status conference or affidavit in the record; thus, neither the trial court judge, nor this Court
has the benefit of considering that information in evaluating the best interests of K.M.L. See
Juv.R. 40(D)(3)(b)(iii). Accordingly, to the extent any of Mother’s objections challenged issues
specific to factual information provided at the status conference, the trial court had no choice but
to overrule the objections given the absence of a transcript or affidavit. See Weitzel v. Way, 9th
Dist. Summit No. 21539, 2003-Ohio-6822, ¶ 21; Juv.R. 40(D)(3)(b)(iii).
{¶10} However, the magistrate found it in K.M.L.’s best interests to expand Father’s
parenting time even before the status conference, based solely upon the evidence set forth at trial.
That evidence is properly in our record. Therefore, we will consider Mother’s argument in light
of the evidence presented at trial.
{¶11} At the time of trial, both Father and Mother were remarried. Mother, Mother’s
husband, Mother’s daughter, and K.M.L., who was five, lived together in Rittman. Father and
Father’s wife lived in Brunswick. There was testimony that Mother and Father lived
approximately 40 to 45 minutes apart and that they used to be closer to 20 to 25 minutes apart
when Father lived in Medina. Father moved to Brunswick in March or April 2014, and married
his wife in the fall of 2014. Father and his wife moved to Brunswick to be closer to his wife’s
family and because they believed that Brunswick had better schools. The increased distance
from K.M.L. did not factor into their decision. The GAL did not view the increased distance
between the two homes as anything to be concerned about. However, Mother viewed the
distance as problematic. Mother was concerned that it would take about an hour for Father to
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take K.M.L. to school and that K.M.L. would thus have to get up very early. Mother had
concerns that K.M.L. might not get enough sleep and that he would spend so much time in the
car that it would interfere with his play time after school. Mother noted that K.M.L. would be
transitioning from preschool to kindergarten, and therefore, would be spending many more hours
in school. Mother felt that granting Father the parenting time in Father’s proposed schedule
(which amounted to a near 50/50 split) would amount to too much change for K.M.L.
{¶12} Beginning when K.M.L. turned three, Father’s parenting time was expanded to
the parenting time provided for in the local rules, which meant that he saw K.M.L. from 4:30
p.m. to 8:00 p.m. every Wednesday and every other weekend from Friday at 6:00 p.m. until
Sunday at 6:00 p.m. The exchanges would take place at a police department. Both parties
acknowledged that the transitions were particularly difficult for K.M.L. Mother would also
allow Father and K.M.L to speak on the phone but the phone would be on speakerphone and
Mother would monitor the calls.
{¶13} Father worked 12 hour shifts and worked every other weekend. In 2016 when he
switched from working nights to days, every other Wednesday his wife began picking up K.M.L.
at 4:30 p.m. for the midweek visitation due to Father’s work schedule. Because Mother read the
agreed judgment entry as requiring Father to be available for the parenting time she began
declining to bring K.M.L. to the exchange point until Father was available. Mother offered to
extend Father’s Friday parenting time instead when Father was available, but Father maintained
that he was entitled to the Wednesday parenting time irrespective of whether he could be present
for all of it. This conflict resulted in Father only having Wednesday parenting time with K.M.L.
every other week. Mother acknowledged that, prior to the confusion about the Wednesday
parenting time, Father had not missed parenting time with K.M.L. unless K.M.L. was sick.
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{¶14} Mother and Father admittedly had difficulty communicating and were described
by the guardian ad litem (GAL) as being polar opposites when it came to communication. The
GAL reported that the parents’ communication during transitions was confusing and hurtful to
K.M.L. and that each parent blamed the other for failures in communication. Mother felt that
Father was dismissive of Mother during transition times and that sometimes, when K.M.L was
being defiant, Father became very stern with K.M.L., and threatened punishment if K.M.L. did
not comply. The GAL thought that the tension could be improved by Mother and Father adhering
to the schedule the court would order, thereby eliminating extraneous conversation, by Father
contacting K.M.L.’s doctors, counselors, and teachers to keep himself informed of the
information and appointments, and by the parents engaging with K.M.L.’s counselor to learn
what they could do to make the transitions easier for K.M.L. The GAL did not recommend that
Mother and Father engage in joint counseling together as they were not in a relationship or trying
to have a friendship and felt that it would be better for K.M.L. if the parents engaged with
K.M.L.’s counselor. Mother believed that she and Father should engage in joint counseling in
light of a recommendation made by one of K.M.L.’s physicians in 2014.
{¶15} Prior to trial, K.M.L. had been in trauma-focused cognitive behavior therapy.
Both Mother and Father had participated in the sessions with K.M.L. with the therapist as she
would request. Initially, when the therapy began, it was reported to the therapist that K.M.L.
made comments while at Mother’s house to the effect of that Father was going to shoot Mother.
The GAL indicated that a police report was filed but nothing ever became of the investigation,
however, it was recommended that K.M.L receive therapy. The GAL noted that the therapist
reported no known current causes for trauma aside from the parenting time transitions and had
diagnosed K.M.L with adjustment disorder. The GAL testified that this was exemplified by
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K.M.L.’s difficulties regulating and identifying his emotions and his aggression with Mother and
his sister and at school.
{¶16} The GAL recommended that K.M.L. be reengaged in therapy, which had ended
when K.M.L.’s therapist went to work elsewhere. The GAL also recommended that K.M.L be
evaluated for an IEP in light of his trouble regulating his emotions and his aggressive behaviors.
The GAL believed that some of K.M.L.’s trauma stemmed from the tense relationship between
Mother and Father. The GAL noted, and the parties agreed, that K.M.L had difficulty with the
transitions between Mother and Father. The GAL reported that, during transitions, K.M.L. could
react with clingy behavior towards Mother, be defiant towards both parents, display melancholy,
and sometimes have temper tantrums. The GAL indicated that the language Mother would
sometimes use during the transitions was alienating; Mother would tell K.M.L. that she was
“sorry [K.M.L. ha[d] to go but mommy loves you[.]” The GAL averred that Mother should be
encouraging K.M.L.’s time with Father, not telling K.M.L. that she is sorry that he has to go.
The GAL testified that K.M.L. told her that the worst thing in his life was the police department
and indicated that the transitions were really stressful for K.M.L.
{¶17} Father’s wife and Father testified that, if the court increased Father’s parenting
time, they would ensure that K.M.L. would be transported to and from school if need be.
Father’s wife worked in retail and indicated that she had flexibility with her scheduling. Father
averred that he and K.M.L. and his wife and K.M.L. have a very loving relationship. Father
indicated that he would be interested in attending K.M.L.’s school events and field trips
irrespective of whether they occurred during his parenting time. Generally, Father was interested
in spending more time with K.M.L.
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{¶18} At the time of trial, Mother also worked 12 hours shifts as a nurse and was
generally working hours when Father was not. However, during Mother’s testimony it became
clear that Father’s hours would shift again, and Father would begin working the same hours
Mother was working. Mother’s mother (“Grandmother”) testified that when Mother was
working, Grandmother and grandfather watched Mother’s daughter and K.M.L. Grandmother
lived a short distance from both Mother and the children’s schools. Grandmother indicated that
she and her husband had a very close relationship with K.M.L. and that K.M.L. was very close to
his sister. Mother testified that her children love her husband and enjoy spending time with him.
Mother also described how she has facilitated visitation with K.M.L.’s paternal grandparents
when Father would not do so.
{¶19} In visiting with K.M.L., Father, and Father’s wife, the GAL did not have any
concerns about Father’s interactions with K.M.L. and indicated that both Father and Father’s
wife engaged appropriately with K.M.L. The GAL observed that both Father and Father’s wife
had a bond with K.M.L. The GAL found K.M.L. to be very comfortable in Father’s home and
described Father and K.M.L.’s relationship as very loving. Moreover, the GAL did not have any
concerns about Mother’s parenting or interactions with K.M.L. While the GAL was able to meet
with Mother, Father, Father’s wife, and K.M.L., and view interactions with K.M.L. and his
parents, unfortunately, due to timing issues, the GAL was not able to meet Mother’s daughter or
Mother’s husband.
{¶20} The GAL indicated that K.M.L. expressed that he likes spending time with Father
and Father’s wife and that he wants to spend time with them. K.M.L. also indicated that “he has
times when does miss [Father.”] Moreover, when the GAL asked whether he would like to
spend more or less time with Father and Father’s wife, K.M.L. stated that he wanted to spend
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more time with Father and Father’s wife. Even Mother agreed that it was in K.M.L.’s best
interest for Father to have “[s]ome” increase in parenting time. She thought it would be best for
Father to have one to two additional evenings a month where Father would pick K.M.L. up from
school, spend a couple hours with him and then bring him home. Later in her testimony, Mother
acknowledged that she would not object if Father had parenting time with K.M.L. twice a week
during the week for a few hours after school, instead of the single Wednesday night visitation.
Mother also admitted that she believed that Father and K.M.L. had a healthy relationship “[t]o
the extent of [her] knowledge.” Nonetheless, Mother expressed concern over Father’s proposed
schedule in so far as she believed it would negatively affect K.M.L.’s relationship with his sister
and his maternal grandparents. Further, Mother maintained that the transitions were easier after
short visits as opposed to after the lengthy visits that happened on the weekends.
{¶21} Ultimately, the GAL recommended that Father have “liberal visitation” as well as
“open and free communication” with K.M.L. The GAL’s report provided that Father “should
have a minimum of Local Rule 11 visitation time with [K.M.L.]” and that “liberal visitation” was
encouraged. (Emphasis added.) The GAL had no concerns about Father and K.M.L. having
unmonitored communication. The GAL felt that monitored communication might inhibit
K.M.L. from speaking openly and honestly with Father in light of the tense relationship between
the parents. The GAL thought the schedule proposed by Father would be appropriate, which
seemed to amount to a near equal split in parenting time. The GAL also suggested that Father
should have a right of first refusal with respect to time when Mother would need to seek out a
third party to watch K.M.L. if Father was available. The GAL acknowledged that the schedule
would result in more transitions, which would prove challenging for K.M.L. However, the GAL
hoped that the parents would work with K.M.L.’s counselor to improve their communication
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during transitions in order to make K.M.L. more comfortable. Additionally, the GAL agreed that
longer time periods between transitions, such as what was in Father’s proposed schedule, would
be in K.M.L.’s best interest as it would allow him time to relax after the transition and spend
quality time with Father before having to transition back to Mother. The GAL acknowledged
that expanding parenting time would decrease K.M.L.’s time with his sister but did not feel that
it would be detrimental to him.
{¶22} After considering the evidence before the trial court and the factors set forth in
R.C. 3109.051(D), we cannot say the trial court abused its discretion in overruling Mother’s
objections and granting Father’s motion to expand Father’s parenting time. We note that the trial
court did not adopt Father’s schedule and instead only expanded Father’s parenting by
approximately four overnight visits a month. The weight of the evidence supports that K.M.L.
has a loving relationship with Mother, Mother’s husband, Father, Father’s wife, Mother’s
daughter, and K.M.L.’s maternal grandparents. However, the evidence also supports that K.M.L.
wanted to spend more time with Father. While Mother expressed concern about the distance
between Father and Mother, and the associated increased travel time, the GAL did not find that
distance to pose a barrier to expanding visitation. The GAL also acknowledged that transitions
were difficult for K.M.L., nonetheless, that did not change her recommendation that Father have
liberal visitation of at least the amount provided for by the local rules. In fact, even Mother
testified that Father should have “[s]ome” expansion in his parenting time and acknowledged
that Father and K.M.L. have a heathy relationship.
{¶23} Mother argues that Father has failed to agree to previously recommended joint
counseling to address the stress transitions place on K.M.L.; however, the record is clear that
Father went to K.M.L.’s therapy appointments as the therapist would request and that the GAL
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did not believe that joint counseling was a good idea for the parents. In light of the record, the
trial court was well aware of the parties’ difficulties in communicating and of the challenges that
the transitions between parents created for K.M.L., some of which were arguably caused or
amplified by the parties’ difficulties communicating. The order of the trial court appears to
attempt to balance these concerns, as well as K.M.L.’s concerns over the transitions happening at
the police station. During the school year, the midweek transitions would no longer involve both
parents, as Father would pick up K.M.L. at school and return him to school, thereby hopefully
decreasing some of the tension that midweek transitions created for K.M.L. And while the
weekend visitation exchanges would still involve both parents, they would no longer involve the
police station; instead, K.M.L. would leave from, and be picked up at, places he enjoyed
spending time. Further, the adoption of a schedule that provided for longer stretches of visitation
time corresponds to the GAL’s preference and the preference stated in the court’s local rules.
See Loc.R. 11(C) of the Court of Common Pleas of Wayne County, Juvenile Division (“Liberal
visitation is encouraged by the Court, taking into account the number of children, their ages, and
the geographic proximity of the parties. The visitation schedule, to the extent possible, should
encourage periods of visitation of significant duration and minimize frequent shifting of the
children back and forth between their parents.”). Additionally, the trial court could have
reasonably concluded that, even though K.M.L. would be experiencing significant changes as he
started kindergarten, it would nonetheless benefit him to spend more time with Father, who
could, like Mother, offer K.M.L. support as he begins school. Overall, we cannot say that
Mother has demonstrated that the trial court abused its discretion in expanding Father’s parenting
time or that such was not in K.M.L.’s best interests.
{¶24} Mother’s assignment of error is overruled.
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III.
{¶25} Mother’s assignment of error is overruled. The judgment of the Wayne County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
NORMAN R. “BING” MILLER, JR., Attorney at Law, for Appellant.
REBECCA A. CLARK, Attorney at Law, for Appellee.