Woodbury v. Woodbury , 2018 Ohio 2026 ( 2018 )

[Cite as Woodbury v. Woodbury, 2018-Ohio-2026.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STACY WOODBURY :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-57
:
v. : Trial Court Case No. 2014-DR-310
:
JARROD WOODBURY : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of May, 2018.
...........
EDWARD A. FRIZZELL, Atty. Reg. No. 0082601, 129 S. Detroit Street, Xenia, Ohio
45385
Attorney for Plaintiff-Appellee
JOHN C.A. JUERGENS, Atty. Reg. No. 0037120, 1504 N. Limestone Street, Springfield,
Ohio 45503
Attorney for Defendant-Appellant
.............
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FROELICH, J.
{¶ 1} Jarrod Woodbury appeals from a Final Judgment and Decree of Divorce of
the Greene County Court of Common Pleas, Domestic Relations Division, which named
Stacy Rader (formerly known as Woodbury) the legal and custodial parent of the parties’
two minor children and made various provisions for parenting time and child support.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
Background and Procedural History
{¶ 3} The parties were married on May 14, 2014, and Rader filed a complaint for
divorce on December 13, 2014. The parties have two children; K.W. was born prior to
their marriage, and H.W. was born after their separation. K.W. was 2 years old at the
time of the hearing, and H.W. was a few months old. Because the parties did not dispute
the parentage of the children, the trial court treated both children as children of the
marriage. Rader sought to be the legal and custodial parent of the children; Woodbury
sought shared parenting.
{¶ 4} While the divorce was pending, the magistrate issued a temporary order
naming Rader as K.W.’s legal and custodial parent. (H.W. was not yet born.) The
parties entered into an agreement regarding parenting time, which allowed Woodbury
every other weekend and two midweek visits with K.W. When H.W. was born, Woodbury
initially had parenting time with H.W. at Rader’s home at the beginning and end of his
weekends with K.W.
{¶ 5} A magistrate conducted a hearing on the complaint for divorce and
parenting issues on November 5, 2015 and January 14, 2016. The evidence presented
at the hearing was as follows:
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{¶ 6} Rader testified that her marriage with Woodbury broke down because he
became “distant,” set up a profile on a dating website, refused to end contact with
someone with whom he had had an affair, and went out drinking with his friends in the
evenings instead of staying home with her. The specific event that caused Rader to
leave occurred in December 2014: Woodbury woke Rader up in the middle of the night,
yelling at her about why she had locked her phone. The noise woke their daughter, K.W.,
who began to cry, and Woodbury would not let Rader go to K.W. From her past
experiences with Woodbury, Rader knew that he was “very quickly approaching that level
of anger where he would get physical.” She was crying, shaking, and asking Woodbury
to stop holding and yelling at her. He wanted to lay together in their bed, which she
agreed to do in order to diffuse the situation. Rader moved to her parents’ house, sought
a civil protection order, and filed for divorce within the next few days. At the time of their
separation, Rader was pregnant with H.W.
{¶ 7} Rader stated that she was the primary caregiver for K.W. during the
marriage and that, even when she (Rader) was sick, Woodbury did not care for K.W.
According to Rader, Woodbury was easily aggravated by K.W.’s behavior, especially
crying or fussiness, which was common considering K.W.’s young age. Rader recounted
that, when K.W. cried, Woodbury had on occasion held her very tightly, held a hand over
K.W.’s mouth, or cursed and yelled at her until she stopped. Rader acknowledged,
however, that Woodbury had gotten better at holding his temper with K.W. as she got a
little bit older.
{¶ 8} In terms of physical abuse, Rader stated that she recalled only one incident
when Woodbury had hit her during their marriage: she had been holding K.W., who was
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a baby, and Woodbury punched Rader in the shoulder and threatened and intimidated
her “in her face.” She stated that there had also been some physical abuse before their
marriage.
{¶ 9} Rader testified that Woodbury took Adderall and blood pressure medicine;
he also received counseling. She believed that, for a time, these things had helped with
Woodbury’s anger issues. But he would sometimes stop taking the medication, and
Rader would urge him to resume. She had warned Woodbury that she would leave if he
did not do something about his anger issues and stop his affairs.
{¶ 10} Rader’s mother also testified about Woodbury’s interaction with his
children. She stated that, when K.W. was an infant, “every little thing [K.W.] did seemed
to upset him,” but that his interactions with K.W. recently had been more “under control.”
Rader’s mother had supervised some visits between Woodbury and the new baby, H.W.,
at her house, and there had been no problems, but she expressed nervousness about
how Woodbury would handle unsupervised visits with H.W., based on his short patience
with K.W. when she was H.W.’s age.
{¶ 11} Woodbury testified that, at the time of the hearing, he was taking Adderall
two times a day; he was also seeing a “licensed clinical counselor” and had been since
2006. Woodbury stated that his anger issues were under control. He recounted that,
in 2014, he had weaned himself off of his medication with his doctor’s permission, but he
was off the medication for less than a year when he decided to resume it. His doctor
suggested it would “help with * * * calming down and * ** getting aroused too quickly.”
{¶ 12} In addition to his two children with Rader, Woodbury has another son,
L.W., who is two years older than K.W. Woodbury had visitation with L.W. on alternating
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weekends and three weeknights of each two week period, and he pays child support.
Woodbury testified that, when he and Rader were together, Woodbury had sought shared
parenting of L.W., and Rader had supported him in this effort, although she did say he
was “sometimes * * * a little quick to discipline [the kids] or sit them in timeout.”
Woodbury admitted to “cheating” on Rader and to hitting her on the arm one time during
their marriage when they were arguing about his cheating; he did not remember hitting
her any other time. He stated that some of his incidents of frustration in dealing with
K.W.’s fussiness stemmed from people trying to take K.W. away from him in those
situations, rather than the fussiness itself. He stated that he did not hit the children but
had spanked them perhaps a dozen times, combined. Although he denied many of
Rader’s claims against him, Woodbury believed that they could cooperate with shared
parenting. Woodbury stated that Rader was the primary caregiver for K.W. during the
marriage, but he stated that he was also involved in her care.
{¶ 13} Woodbury admitted that, on one occasion when he had been having
supervised visitation with K.W. at his mother’s house, he took K.W. to his apartment alone
to do laundry and then fell asleep. He stated that he did not think he had violated the
terms of supervised visitation because he had believed his sister was also coming to his
apartment (although she did not).
{¶ 14} Woodbury lived in a one-bedroom apartment; he stated that he had beds
for all the children in the bedroom, including toddler bunk beds and a crib. He had a
roommate who was moving out in the near future.
{¶ 15} Woodbury’s mother, Shawn Tucker, acknowledged that Woodbury and
Rader had had a “somewhat tumultuous relationship” and that Woodbury had a temper.
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But she testified that Rader had recently supported Woodbury’s efforts to obtain shared
parenting of his son, L.W., and that Rader stated she thought Woodbury was a good
father. Tucker identified Rader as the primary caregiver, but stated that Woodbury’s
parenting was “appropriate” and that both Rader and Woodbury love their children.
Tucker described Woodbury as “the disciplinarian” (which she described as timeouts
followed by hugs).
{¶ 16} Tucker stated that she had never seen Woodbury hit Rader and that Rader
had never complained about Woodbury’s parenting. According to Tucker, Rader had
stated that she only obtained a civil protection order in December 2014 “because she was
afraid that if she’d let [Woodbury] come and talk with her that she would forgive him and
go back with him.” Tucker believed that the couple could cooperate and engage in
shared parenting.
{¶ 17} Testifying in rebuttal, Rader denied that she ever told Tucker that she
obtained a civil protection order to avoid being tempted to go back to Woodbury. She
also testified that Woodbury had spanked the children more than a dozen times.
{¶ 18} With respect to their wishes about parenting, Rader testified that she would
like to be the legal and custodial parent of the children. Although she believed that
Woodbury had become better in terms of managing his temper with K.W., she did not
want Woodbury to have significant unsupervised time with H.W. because H.W. cannot
“speak up” for himself like K.W. can. She also believed that the children were too young
for week-by-week shared parenting, because keeping a routine was important at their
ages, and the two households would not only have different parents, but also different
childcare providers and schedules. This would make having a routine very difficult, and
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she thought this was too much for young children to handle. Rader had no objection to
attempting to coordinate visitation with Woodbury’s visits with L.W., so that all the siblings
would have time together. She believed that the parties were able to communicate about
issues involving the children. Rader agreed to begin providing some of the
transportation for the children’s visits, which she had not been doing up until that time.
The parties lived 1½ to 1¾ hours apart by car.
{¶ 19} Woodbury sought shared parenting with an alternating week-by week-
schedule.
{¶ 20} There was no guardian ad litem in this case.
{¶ 21} The magistrate found that it was in the children’s best interest to name
Rader the legal and custodial parent and grant parenting time to Woodbury. The
magistrate concluded that the parties did not communicate and cooperate well enough to
order shared parenting, noting the “substantial conflict and limited violence during the
marriage.” The magistrate also cited the young ages of the children, the significant
distance between the parents’ homes, and Woodbury’s limited contact with H.W. up to
that time. The magistrate acknowledged that Woodbury’s medication seemed to be
having its desired effect on his stress and impulse control issues, but nonetheless
concluded that the children’s best interest would be served by awarding custody to Rader.
{¶ 22} With respect to the specifics of parenting time, the magistrate incorporated
the standard order of visitation, with some modifications. Because Woodbury had had
limited contact with H.W. and only in a supervised setting, the magistrate increased
visitation in “a gradual manner”: on the alternating weekend visits, H.W. was to begin
weekend visitations at the same time as K.W., but he would be picked up by Rader on
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Saturday evening, rather than Sunday evening. This arrangement was to continue until
May 2017; from then on, both children would have the full weekend visitation. The order
also provided for both children to have three full weeks of visitation with Woodbury in the
summer of 2017, and the full amount of visitation provided under the standard order for
summers beginning in 2018. The magistrate eliminated the mid-week visitation that is
provided in the standard order, without explanation. The magistrate also ordered
Woodbury to pay total child support of $783.55 per month for both children, effective
January 1, 2016.
{¶ 23} Both parties filed objections to the magistrate’s decision and order.
Woodbury objected to the denial of shared parenting, the designation of Rader as the
legal and custodial parent, the fact that his mid-week visitation, which he had “consistently
enjoyed,” had been eliminated, and that he received less that the standard order of
visitation with both children. Rader’s objections asserted that the magistrate had failed
to adequately account for Woodbury’s violent and abusive behavior, his “lack of
consistency in his time with the children,” his efforts to manipulate Rader through the
visitation, and her concerns about expanded visitation.
{¶ 24} The trial court overruled all of the objections. Its Final Judgment and
Decree of Divorce, filed on October 18, 2017, allocated parental rights and responsibilities
and parenting time and ordered Woodbury to pay child support in a manner that was
consistent with the magistrate’s decision.
{¶ 25} Woodbury appeals from the trial court’s Final Judgment and Decree of
Divorce, raising five assignments of error.
Custody Determination
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{¶ 26} In his first assignment of error, Woodbury argues that the trial court abused
its discretion and erred in naming Rader as the custodial parent, rather than adopting
shared parenting. He contends that this decision was against the manifest weight of the
evidence and was “to the detriment” of the children. He also argues, more generally,
that Rader is not compliant with the terms of visitation, hassles him unnecessarily, and
does not give him “credit” where it is due.
{¶ 27} “The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court’s determination will have on the lives of the parties concerned.” Miller v. Miller, 37
Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Under the abuse-of-discretion standard in a
custody case, “disputes about the facts, the weight accorded the testimony, and the
credibility of witnesses are left to the trial court.” Gartin v. Gartin, 2d Dist. Clark No. 2011-
CA-74, 2012-Ohio-2232, ¶ 7, citing Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674
N.E.2d 1159 (1997). “The question is whether evidence was presented that, if believed,
supports the trial court’s findings.” Id., citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414
N.E.2d 426 (1980). An abuse of discretion occurs when the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 28} Pursuant to R.C. 3109.04(F)(1), the trial court must consider all relevant
factors in determining the best interest of a child with respect to custody and visitation,
including, but not limited to: the wishes of the child’s parents; the wishes and concerns of
the child, if appropriate; the child’s interaction and interrelationship with his or her parents,
siblings, and any other person who may significantly affect the child’s best interest; the
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child’s adjustment to home, school, and community; the mental and physical health of all
persons involved in the situation; the parent more likely to honor and facilitate parenting
time or visitation and companionship rights; whether either parent has failed to make all
required child support payments; whether either parent 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 either parent has denied the other parent’s
right to parenting time in accordance with an order of the court; and whether either parent
has established a residence, or is planning to establish a residence, outside this state.
See also Portis-Phillips v. Phillips, 2d Dist. Clark No. 2016-CA-34, 2016-Ohio-7803, ¶ 19.
{¶ 29} Additionally, in determining whether shared parenting is the best interest
of a child, the court shall consider: the ability of the parents to cooperate and make
decisions jointly with respect to the children; the ability of each parent to encourage the
sharing of love, affection, and contact between the child and the other parent; any history
of, or potential for, child abuse, spouse abuse, other domestic violence, or parental
kidnapping by either parent; the geographic proximity of the parents to each other and
the practical considerations of shared parenting; and the recommendation of the guardian
ad litem of the child, if the child has a guardian ad litem. R.C. 3109.04(F)(2).
{¶ 30} The trial court did not abuse its discretion in concluding that shared
parenting was not in the best interest of the children and that Rader should be the legal
and custodial parent. All of the witnesses testified that Rader was the primary caregiver
for the children, although Woodbury testified that he also cared for K.W. H.W. was born
after the parties were living separately and, at the time of the hearing, Woodbury had
never had unsupervised visitation with him. The parties’ residences were a significant
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distance apart. Woodbury could not name the children’s pediatrician. He also could not
provide the full name of the person that he proposed as a childcare provider, if he were
to have shared parenting, notwithstanding that this person was already the caregiver for
Woodbury’s older child; he testified that the caregiver would charge the same rate for
three children as for one, and that she would not charge him for the weeks the children
were not in his care. All of the witnesses also testified that Woodbury had a temper and
that, at least during some periods in the past, he had anger management issues. The
record amply supports the trial court’s conclusion that it was in the children’s best interest
for Rader to be the residential and custodial parent.
{¶ 31} Beyond the question of the custody determination, Woodbury argues at
length under this assignment of error that Rader had “misinterpreted” the court’s orders
“to serve her interests” (emphasis sic), did not willingly comply with visitation orders,
deliberately scheduled and communicated with him about appointments for the children
in a manner that made it difficult for him to attend, interfered with his visitation in other
ways, hassled him for taking one of the children to an emergency room, and refused to
give him “credit for all the wonderful things he does for the children.” He also asserts
that, “midway through the final divorce proceedings, [Rader] substituted her counsel of
record” and retained the attorney used by the mother of Woodbury’s other child, L.W.,
and “[e]ver since, * * * [Woodbury] had experienced problems with both mothers in
regards to schedules and conflicts.”
{¶ 32} To the extent that these matters preceded the final judgment and decree
of divorce, there is no evidence in the record to support Woodbury’s claims. To the
extent that Woodbury’s arguments assert Rader’s noncompliance with the terms of the
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decree after it was entered, such matters are outside the record of this case and are
properly addressed through a motion for contempt; we cannot deal with enforcement
issues on appeal from a final judgment and decree of divorce. We observe, however,
that Woodbury’s argument that there has been extensive conflict between the parties
about parenting and visitation issues before and since the time of the divorce may
undercut his argument that the parties were or are well-suited to shared parenting.
{¶ 33} The cases upon which Woodbury relies involve reallocation of parental
rights following the decree of divorce, based on evidence of the custodial parent’s
interference with the non-custodial parent’s visitation and “poison[ing]” the children’s
relationship with the non-custodial parent, Chelman v. Chelman, 2d Dist. Greene No.
2007 CA 79, 2008-Ohio-4634, ¶ 25, or otherwise adopting a lifestyle that was not in the
best interest of the child(ren). Cure v. Cure, 2d Dist. Clark No. 2011 CA 73, 2012-Ohio-
2966, ¶ 29. Because this record does not contain such evidence, the cases are not
analogous.
{¶ 34} The first assignment of error is overruled.
Interim Order of Visitation
{¶ 35} In his second assignment of error, Woodbury argues that the magistrate
failed to timely rule on his objections, entered a “vague” interim order, and did not properly
renew its interim order.
{¶ 36} In February 2015, about six weeks after the complaint for divorce was filed,
the magistrate issued a temporary order which designated Rader as the temporary legal
and custodial parent, ordered the parties to agree on visitation, and ordered Woodbury to
pay child support for K.W. The parties subsequently filed an agreed order, which the
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magistrate signed, that Woodbury would have visitation with K.W. every other weekend.
A few months later, the parties reached another agreement, approved by the magistrate,
which added midweek visits with K.W. and provided for Woodbury to visit with the as-yet
unborn baby at Rader’s home before and after K.W.’s weekend visits. On September
30, 2016, Woodbury filed a motion to find Rader in contempt with respect to allowing
parenting time.
{¶ 37} The magistrate’s decision and order addressing all of the issues in the case
was filed on October 28, 2016. This decision acknowledged Woodbury’s pending motion
for contempt but did not specifically address it; however, the final sentence of the decision
stated that any other motion not specifically addressed was denied.
{¶ 38} Woodbury filed objections to the magistrate’s decision on November 9,
2016. On November 28, 2016, Rader filed a motion for leave to file objections out of
time and simultaneously filed her objections. The same day, she also filed a motion for
a hearing on parenting time, which sought to suspend Woodbury’s parenting time or, in
the alternative, to have it be supervised. Woodbury opposed Rader’s motion for leave
to file objections. In December 2016, he also filed a motion to hold Rader in contempt
for interfering with his visitation and adversely affecting his ability to bond with the
children. In early January 2017, Rader filed a motion for an immediate hearing on the
court’s interim orders, and Woodbury filed supplemental objections to the magistrate’s
decision.
{¶ 39} On January 11, 2017, the trial court ruled on the pending motions. The
court overruled (i.e., refused to consider) Rader’s objections, because they were untimely
and she had failed to show good cause for their untimely filing. The trial court also
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overruled Woodbury’s request for a finding of contempt, finding that the motion was
“premature,” that “parenting time was stayed by [Woodbury’s] objections,” and that the
magistrate’s decision and order had granted Woodbury additional time with both children.
The trial court denied the requests for additional hearings on any of these issues. The
trial court did not address the parties’ objections or enter a final judgment and decree of
divorce at this time.
{¶ 40} On January 30, 2017, Woodbury filed a “motion to reconsider and clarify.”
In its introduction, the motion seemed to be directed to the trial court’s entry of January
11, but in substance, it challenged the magistrate’s October 28, 2016 decision and order
on all of the issues in the case, insofar as he (Woodbury) sought mid-week visitation with
both children, “full weekend parenting time” with H.W. beginning immediately, or, in the
alternative, that the magistrate specify when, in the future, Woodbury would be entitled to
additional parenting time with the children, such as mid-week and full-weekend visitation,
and a change in the drop-off and pick-up location. These arguments mirrored some of
Woodbury’s previous objections. The trial court overruled this motion on February 6,
2017; the trial court referenced its January 11, 2017 interim order and stated that
“[p]ursuant to the Civil Rule it will be reviewed 28 days after it was filed and not before
that date.”
{¶ 41} Woodbury argues that the court’s interim order of January 11, 2017 was
“so vague as to not address” many of his concerns about “his right to exercise parenting
time with his children.”
{¶ 42} “[T]he final divorce decree should replace all interim orders that transpired
before it.” Leblanc v. Leblanc, 2d Dist. Greene No. 95-CA-43, 1996 WL 283939, *3 (May
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31, 1996), citing Colom v. Colom, 58 Ohio St.2d 245, 247, 389 N.E.2d 856 (1979). See
also In re Emergency Guardianship of Stevenson, 9th Dist. Medina No. 04CA0036-M,
2005-Ohio-997, ¶ 11; Beil v. Bridges, 5th Dist. Licking No. 99CA00135, 2000 WL 977221,
*3 (July 13, 2000). As such, issues related to the interim orders are moot once a final
judgment is entered, i.e., they have “no practical significance, being instead merely
hypothetical or academic.” In re Guardianship of Weller, 2d Dist. Montgomery No.
24337, 2011-Ohio-5816, ¶ 7. As such, an interim order may not be appealed following
a final judgment. Woodbury’s notice of appeal implicitly acknowledges this fact, insofar
as he appealed from the court’s final judgment.
{¶ 43} The second assignment of error is overruled.
Mid-Week Visitation
{¶ 44} In his third assignment of error, Woodbury argues that the trial court erred
in eliminating his mid-week parenting time, when he had been consistently exercising
such visits under the temporary orders while the case was pending.
{¶ 45} The magistrate’s decision did not expressly address mid-week visitation
except to say that “Mother agrees that parenting time with [K.W.] should be pursuant to
the Court’s Standard Order without midweek time.” The “interim order” filed on January
11, 2017, which increased Woodbury’s time with H.W., also stated there would be no mid-
week parenting time, “due to the distance between the parties’ homes.” Woodbury
objected to the elimination of the mid-week visits. In overruling the objection, the trial
court observed that the children “are extremely young,” that the parties lived a significant
distance apart (more than an hour and 15 minutes each way),1 that mid-week parenting
1
Woodbury testified that the drive time was 1¾ hours between the parties’ houses or 1½
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time “places an unnecessary burden on” Rader, and that mid-week parenting time
therefore was not in the children’s best interest.
{¶ 46} It does not appear from the record that Rader requested the termination of
mid-week visitation. She testified at the hearing that she wanted to retain the schedule
for K.W. that was set forth in the agreed entry, and this entry provided for mid-week
visitation. However, Woodbury did not address the issue of mid-week visitation at the
hearing. Although his brief suggests that the mid-week visits presented no burden for
Rader because Woodbury “drove to Mt. Cory, visited with the children at the McDonald’s
less than 15 minutes away and then returned the kids to” Rader, these facts are not
contained in the record.
{¶ 47} The record supports the trial court’s findings that the distance between the
parties’ homes is over an hour’s drive and that the children are very young. We cannot
conclude that the trial court abused its discretion in concluding that mid-week visitation
was not in the children’s best interest. It is less clear from the record how the mid-week
parenting time “place[d] an unnecessary burden on [Rader],” because the record contains
little evidence about how this parenting time was effectuated. Nonetheless, we cannot
conclude that the trial court abused its discretion in resolving this issue as it did.
{¶ 48} The third assignment of error is overruled.
Pick-Up and Drop-Off Locations
{¶ 49} Woodbury asserts that the trial court abused its discretion in adopting a
hours from his work to Rader’s house. In overruling Woodbury’s objections, the trial
court found that the parties “lived one hour and twenty-three minutes apart.” This
number appears to be based on the trial court’s own calculation, and not on any evidence
that was presented.
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pick-up and drop-off location that was “clearly disadvantageous, inequitable, and an
undue burden” on him. He bases this argument on the fact that Rader moved far away
from her residence with Woodbury and “should not be rewarded for her selfish decision,”
on alleged conflicts between the pick-up and drop-off times of K.W. and H.W. and the
pick-up and drop-off times for Woodbury’s visits with his other son, L.W., and very
generally on Rader’s alleged unwillingness to be “flexible” or to give Woodbury “any
benefit of the doubt.” The chosen location was a Wendy’s restaurant in Anna, Ohio, off
Interstate 75, located approximately halfway between the parties’ homes.
{¶ 50} Woodbury did not object to the proposed location of the parenting
exchange at the hearing or in his objections or supplemental objections to the
magistrate’s decision. Thus, he has waived all but plain error with respect to this issue.
Clayburn v. Clayburn, 2d Dist. Montgomery No. 27476, 2017-Ohio-7193, ¶ 16, citing Cox
v. Cox, 2d Dist. Montgomery Nos. 18345, 18350, 2000 WL 1838266, *4 (Dec. 15, 2000);
Civ.R. 53(D)(3)(b)(iv). In appeals of civil cases, the doctrine of plain error is disfavored
and may be applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the basic
fairness, integrity, or public reputation of the judicial process, and thereby challenges the
legitimacy of the underlying judicial process itself. In re C.B., 2d Dist. Montgomery No.
24564, 2011-Ohio-4537, ¶ 9, citing In re A.J.S. & R.S., 2d Dist. Miami No. 2007 CA 2,
2007-Ohio-3433, ¶ 16.
{¶ 51} Moreover, at the hearing, Rader’s proposed plan for exchanging the
children was discussed, including the exchange location in Anna, Ohio. Woodbury did
not express any problem with the plan, including the location for exchanges. The plan,
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which was adopted by the trial court, was for the parties to meet in Anna on Fridays to
exchange the children at the beginning of weekend visits; then, on Saturdays, Rader
would pick H.W. up at Woodbury’s house, and on Sunday, Woodbury would return K.W.
to Rader’s house. The parties’ driving obligations were equivalent, and Woodbury
admitted at the hearing that this plan would result in less driving on his part than under
the previous arrangement, where he was primarily responsible for transportation.
{¶ 52} Woodbury also asserts in his brief that the trial court abused its discretion
in “fail[ing] to compare the time schedules for all the minor children” so as to avoid conflicts
between the pick-up and drop-off times and locations for Woodbury’s children with Rader
and his older child, the orders for which were both “out of Greene County.” But
Woodbury did not present the order related to parenting time in L.W.’s case in this
proceeding, and the trial court did not have an obligation to conduct research on his
behalf. Woodbury also did not testify about his parenting time schedule with L.W. in
sufficient detail for the trial court to know that the order adopted in this case allegedly
presented a conflict.
{¶ 53} The trial court did not abuse its discretion, much less commit plain error, in
designating the Wendy’s location for exchanging the children.
{¶ 54} The fourth assignment of error is overruled.
Child Support
{¶ 55} In his fifth assignment of error, Woodbury argues that if the parenting time
order was “stayed * * * pending the outcome of the objections,” he should have been
informed of this fact and he should not have been required to pay child support during
this period. He asserts that the trial court retroactively increased his child support while
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“deny[ing] [him] the privileges of parenting time.”
{¶ 56} Woodbury’s argument is not supported by the record. Although the trial
court’s “interim” order of January 11, 2017, does state that “parenting time was stayed by
[Woodbury’s] objections,” there is no indication in the record that the parenting time to
which the parties’ agreed at the outset of these proceedings ever stopped. Rather, read
in conjunction with the procedures set forth in Civ.R. 53(D), we interpret the trial court’s
interim order to suggest that, to the extent that the magistrate’s decision and order differed
from the agreed order, the changes did not go into effect until the trial court ruled on the
parties’ objections.
{¶ 57} When the magistrate’s decision and order was filed on October 28, 2016, it
provided for total child support for the two children in the amount of $783.55 per month,
effective January 1, 2016.2 This amount was based on the child support computation
worksheet. Woodbury did not object to the magistrate’s proposed effective date, and
thus he has waived his argument that child support should not have been imposed
“retroactively.” He also did not object to the child support calculation. In its judgment,
the trial court ordered child support in the same amount and, like the magistrate, the trial
court used an effective date of January 1, 2016.
{¶ 58} Neither the magistrate nor the trial court stated a reason for making the
child support modification effective on January 1, 2016. However, there was nothing
unreasonable about the date chosen, especially since Woodbury did not object or suggest
2
For simplicity, we refer to the amounts Woodbury was required to pay if he were
providing health insurance for the children, as he was at the time of the hearing. The
magistrate’s and trial court’s orders also provided a different amount, which included
cash medical support, in the event health insurance were not provided.
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the use of an alternate date. Woodbury’s argument that he should not have had to pay
child support during the pendency of these proceedings because his parenting time was
“stayed” finds no support in the law or in the record, because there is no evidence that he
was denied parenting time for any extended period. The trial court did not err in choosing
the effective date of the child support modification.
{¶ 59} The fifth assignment of error is overruled.
{¶ 60} The judgment of the trial court will be affirmed.
.............
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Edward A. Frizzell
John C.A. Juergens
Hon. Steven L.W. Hurley