Cireddu v. Clough , 2014 Ohio 2454 ( 2014 )

[Cite as Cireddu v. Clough, 2014-Ohio-2454.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
JAMES V. CIREDDU, et al., : OPINION
Plaintiff-Appellee/ :
Cross-Appellant, CASE NO. 2013-L-092
:
- vs -
:
STEPHANIE Y. CLOUGH,
:
Defendant-Appellant/
Cross-Appellee. :
Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case
No. 2008 CV 02029
Judgment: Affirmed.
Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., 1660 W. Second Street, Suite 410,
Cleveland, OH 44113 (For Plaintiff-Appellee/Cross-Appellant).
Stephanie Y. Clough, pro se, 8060 Wright Road, Broadview Heights, OH 44147
(Defendant-Appellant/Cross-Appellee).
Rebecca Castell, 12690 Opalocka Drive, Chesterland, OH 44026 (Guardian ad litem).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant/cross-appellee, Stephanie Y. Clough, and plaintiff-
appellee/cross-appellant, James V. Cireddu, appeal the judgment of the Lake County
Court of Common Pleas, Juvenile Division, granting Clough’s Motion to Modify
Parenting Time/Visitation and Motion to Recalculate Child Support, giving her equal
parenting time and reducing her child support obligation. The issues before this court
are whether a trial court errs in not ordering discovery of information when a party states
that such information does not exist, whether a child support deviation should be
awarded when one is not clearly requested or proven, whether a trial court may accept
testimony that a party’s income for one year was not indicative of his typical income,
whether a trial court must determine which party can claim a dependency tax exemption
when modifying child support, and whether it is an abuse of discretion to award one
parent equal parenting time when there is testimony that the children are happy and
secure in the current parenting time arrangement. For the following reasons, we affirm
the judgment of the court below.
{¶2} On October 14, 2008, Cireddu filed a Complaint with the Lake County
Court of Common Pleas, Juvenile Division, to determine custody of his and Clough’s
two minor children, J.C., born on January 18, 2006, and G.C., born on December 11,
2008.
{¶3} Following a trial, on August 13, 2009, the magistrate found that Clough “is
not likely to honor court-ordered parenting time with [Cireddu]” and the geographical
distance between the parents was not conducive to shared parenting. The trial court
subsequently adopted this recommendation and Cireddu was granted legal custody.
The custody determination was affirmed by this court in Cireddu v. Clough, 11th Dist.
Lake No. 2010-L-008, 2010-Ohio-5401.1
{¶4} Various other issues and motions have been litigated by the parties
following the custody determination. These motions led to court orders requiring
Cireddu to make the children available for telephone conversations and to provide
1. The lower court’s judgment was reversed in part, due to an error in stating the appropriate date for the
commencement of child support payments.
2
Clough with information about the children. The lower court also held that the children
would retain Clough’s surname, which was affirmed by this court in Cireddu v. Clough,
11th Dist. Lake No. 2011-L-121, 2012-Ohio-2242, ¶ 27.
{¶5} Clough subsequently filed a Motion for Allocation of Parental Rights and
Responsibilities/Motion for Shared Parenting on August 18, 2011. This Motion was
denied by the lower court, on the grounds that no change in circumstances was proven
to allow for the modification of custody. This determination was affirmed by this court in
Cireddu v. Clough, 11th Dist. Lake No. 2012-L-103, 2013-Ohio-2042.
{¶6} While the foregoing appeal was pending, Clough filed a Motion to Modify
Parenting Time/Visitation and Motion to Recalculate Child Support, on September 17,
2012, as well as a Renewed Motion on October 18, 2012. She asserted that modifying
parenting time to allow her equal time with the children would be in their best interest.
Clough also asserted that this change in parenting time and the disparity in the parties’
incomes would require a modification of the child support award.
{¶7} On November 5, 2012, Clough filed a request for Cireddu to provide
certain documents, including financial records relating to his income and child care
expenses.
{¶8} On November 8, 2012, Cireddu filed a Brief in Opposition to Clough’s
request for increased visitation, arguing that it is not in the children’s best interest.
{¶9} Proceedings were initially stayed, due to the pending appeal in this court.
However, the lower court determined that the issues raised were “unrelated to the
pending appeal” and the matter was scheduled for a hearing.
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{¶10} Clough filed a Motion to Compel on December 20, 2012, asserting that
she had not been provided proper documentation in response to her request for
records. Cireddu responded that he provided all documents that he had possession of,
except for a few that were irrelevant to the proceedings.
{¶11} A hearing was held on the Motion to Modify Parenting Time/Visitation on
January 7, 2013.
{¶12} Cireddu testified that he generally works around 40-50 hours in his
Fellowship at MetroHealth Hospital, during which time his mother is the caregiver for the
two children. He also does consulting work when he has extra time or lessened
responsibilities in his primary job and generally works only one or two shifts a week in
this capacity, although he has worked up to five days a week.
{¶13} Cireddu testified that he would be willing to allow Clough to exercise a
Wednesday visitation which she had not had in the past. He believed that he has been
accommodating regarding visitation. He denied that he was non-compliant with court
orders to provide phone contact between the children and Clough. Cireddu believed
that an increase in visitation, as requested by Clough, would not be in the children’s
best interest. He explained that J.C. is afraid Clough and her husband will harm each
other and that G.C. seems to “regress” when he returns from weekend visitations.
{¶14} Clough, who is currently a Pulmonary Critical Care Fellow at MetroHealth
Hospital, testified that she moved from Columbus to a home in Broadview Heights,
where she lives with her husband and other child, A.C., born on August 1, 2011. This
home is in the same school district as Cireddu’s and is a 15 minute drive from his home.
She explained that J.C. and G.C. enjoy being in her home, have a play room and a craft
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room, as well as friends in the neighborhood. Clough testified that her husband would
be able to use his flexible work schedule to care for the children.
{¶15} Clough explained that she was having difficulty communicating with
Cireddu, primarily in receiving phone time with the children and obtaining information
about their activities. She also expressed concern with a reading problem that J.C. was
having in school. She believed it is in the best interest of the children to have equal
visitation and explained that they would be able to continue attending the same schools,
given her proximity to their current residence.
{¶16} On January 23, 2013, the trial court issued a Judgment Entry, denying
Clough’s Motion to Compel, finding that Cireddu had complied with the discovery
request and the remaining items were irrelevant to the proceedings. Clough
subsequently filed a Motion to Vacate that Judgment Entry, which was denied.
{¶17} Clough filed a Motion to Adopt Revised Standard Rule V Parenting Time
on February 8, 2013, arguing that she should be given standard visitation since she
moved in close proximity to the children.
{¶18} On February 14, 2013, Clough filed Combined Interrogatories and
Document Requests, again seeking various financial records.
{¶19} On February 15, 2013, the guardian ad litem filed a Motion to Enforce
Prior Orders on Visitation, also requesting that the court enforce visitation under Local
Rule V. The court ordered that Clough have parenting time pursuant to the court’s
December 22, 2009 order, pending the outcome of the ongoing litigation.
{¶20} A second hearing was held on April 9, 2013, which was related primarily to
Clough’s Motion to Recalculate Child Support.
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{¶21} At the beginning of the hearing, Clough asserted that she had just
received requested discovery the night before and that she was missing a W-2 from
Cireddu’s consulting work. She stated that she could proceed with the hearing, but
needed the W-2. Cireddu explained that he had not yet obtained the W-2, but that he
could provide his year-end paystub. The requested paystub was provided at the
conclusion of the hearing, and Clough explained that there were no other records
needed for her to rest her case on the child support.
{¶22} Cireddu testified that he pays his mother to provide child care, including
payment of her bills and expenses. He declared $6,000 for child care on his tax returns
for 2010 and 2011, although he pays more than this for his mother’s expenses. He
believes that she is a good care provider for the children, due to her background as a
teacher.
{¶23} He explained that in 2012, he had limited responsibilities because of an
elective class, which allowed him to work as a consultant, and he made between
$105,000 and $110,000. He testified that he would not be able to continue that work to
the same extent in the future, that he had made approximately $33,000 for consulting in
2011, and that he would expect to make approximately $60,000 from consulting in
future years.
{¶24} Regarding the children, Cireddu explained that they are doing well and
have an established routine. He expressed concerns regarding behavioral problems
when they return from Clough’s home, as well as J.C.’s knowledge of the legal
proceedings and expression of anxiety after returning. He also noted that the children
smell like smoke when returning from Clough’s home, and are not always given baths.
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{¶25} Victoria Cross-Cireddu, Cireddu’s mother, testified that she was not
employed, to allow her to take care of the children. She explained that she is
compensated by Cireddu through his payments for the home and bills.
{¶26} Clough testified that she believed she had overpaid support for the past
year, due to Cireddu’s consulting income. She presented her calculation of what she
believed child support should be, which totaled $493.41 per month.
{¶27} The guardian ad litem, Rebecca Castell, testified regarding her
recommendation on the Motion to Modify Parenting Time/Visitation. She believes that
the children benefit from their relationships with both parents. She recommended that it
was in the best interest of the children to spend equal time with Clough.
{¶28} On May 1, 2013, a Magistrate’s Decision was filed. The magistrate found
that, although both parents have “demanding careers,” they are “dedicated to spending
as much time with their children as possible” and both have appropriate childcare
arrangements in place. The magistrate also found that the two parents have difficulty in
working together to parent the children, although the children were described as happy.
{¶29} Regarding the parties’ finances, it was noted that both have had an
increase in income and that Cireddu earned over $106,000 doing consulting work in
2012. The magistrate found that, pursuant to Cireddu’s testimony, he would not earn as
much consulting income in the future. The magistrate found that $60,000 in consulting
income would be an appropriate estimate for his typical consulting income. The
magistrate also found that Cireddu’s childcare expenses amounted to $6,000.
{¶30} The magistrate discussed the factors considered regarding visitation
under R.C. 3109.051(D), noting that the children have a good relationship with Clough
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and their half-sister, the parties live in close proximity, both parents are dedicated to
spending time with the children, and the guardian ad litem recommended equal
parenting time. The magistrate concluded that Clough should have parenting time
equal to Cireddu’s possessory time, allowing her to have the children on a weekly
rotating basis.
{¶31} The magistrate recommended that the Motion to Recalculate Child
Support be granted, and that Clough should pay $623.23 per month in child support,
attaching the completed child support worksheet.
{¶32} Clough filed Objections to Magistrate’s Decision on May 13, 2013 and
Supplemental Objections on July 5, 2013. She argued, inter alia, that the magistrate
erred in calculating child support and by failing to designate who should claim the
children for tax purposes and that she was not provided with proper discovery.
{¶33} Cireddu also filed Objections to Magistrate’s Decision on May 14, 2013
and Supplemental Objections on July 12, 2013. He argued that the magistrate failed to
properly weigh the evidence to determine the best interest of the children.
{¶34} A hearing was held on the objections on September 6, 2013. On the
same date, the court overruled the objections to the Magistrate’s Decision and issued a
Judgment Entry adopting the Magistrate’s Decision in full. Thus, Clough was granted
parenting time every other week and ordered to pay $636.23 per month in child support,
when health insurance is provided, and $541.70 when health insurance is not provided.
{¶35} On appeal, Clough raises the following assignments of error:
{¶36} “[1.] The court erred in failing to enforce Appellant’s Request for the
Production of Documents and subsequent legally court issued subpoena resulting in a
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failure to afford the Appellant her right of discovery in order to obtain, document, and
verify amounts for the calculation of child support for the Appellee’s annual income, self-
employment income and child care payments.
{¶37} “[2.] The court erred by arbitrarily choosing to use unverified amounts for
the calculation of child support for the Appellee’s annual income, self-employment
income and childcare expenses in place of verified submitted documents.
{¶38} “[3.] The court erred by failing to calculate the Appellant’s child support
obligation in accordance with the basic child support schedule, the applicable
worksheet, and the other provisions of sections 3119.02 and 3119.24 of the Revised
Code.
{¶39} “[4.] The court erred by failing to designate the Parent entitled to claim the
federal income tax deduction as required under 3119.82 of the Revised Code.”
{¶40} On cross-appeal, Cireddu raises the following assignments of error:
{¶41} “[1.] The trial court erred in modifying appellant’s parenting time rights.
{¶42} “[2.] The trial court erred [in] awarding appellant parenting time rights
equal in time to the custodial possession time of appellee.”
{¶43} In her first assignment of error, Clough argues that the trial court erred in
failing to enforce her request for the production of certain documents.
{¶44} Cireddu argues that he complied with the requests to the extent necessary
and Clough received the documents required to pursue her motions.
{¶45} “The trial court has broad discretion in regulating the discovery process
and, therefore, the trial court’s decisions on discovery matters will not be reversed
absent an abuse of discretion.” Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062,
9
2005-Ohio-7060, ¶ 7, citing Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 592, 664
N.E.2d 1272 (1996).
{¶46} First, Clough argues that Cireddu failed to disclose records showing the
hours that he worked in his consulting job and that the trial court erred in failing to
compel the production of these documents. Cireddu stated that he gave her the
requested documents, although he did not provide her his own personal calendar where
he had written his work dates and times. He testified that there is no set schedule as it
relates to his consulting jobs and that he fills in at various hospitals when needed.
Thus, he could not provide a specific work schedule. Although Clough argues that
Cireddu should have had such hours documented through submissions to his program
supervisor at MetroHealth, Cireddu testified that his supervisor does not review any of
the extra consulting hours Cireddu works and such records are not kept on a monthly
basis. Based on Cireddu’s response to the request that such records were not
available, and the foregoing testimony, the trial court did not abuse its discretion in
determining he was not required to provide records which he did not have. See Dick v.
Tab Tool & Die Co., 5th Dist. Licking No. 2008-CA-0013, 2008-Ohio-5145, ¶ 24 (“[t]he
trial court was free to believe or disbelieve appellant’s explanations of why the
documents do not exist”).
{¶47} Clough also argues that she received some child support documentation
the day before the hearing, one document on the morning of the hearing, and one
document during the afternoon of the hearing. She fails to assert, however, how this
constitutes an error. She not only received these specific documents that she
requested, but she expressed satisfaction that she had received the documents
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requested. Specifically, when the court asked if, after receiving evidence of Cireddu’s
consulting salary, she would “have all of the records that [she] needed” or whether there
were still items that were outstanding under her subpoenas, she responded that “that
would be it.” When asked, after receiving that document, whether there was “any
other outstanding discovery” or “records that she was hoping to obtain,” she responded
“no.” Thus, while she claims that she was denied the ability to receive monthly pay
stubs for Cireddu’s consulting hours, she did not state at that time that they were
necessary for the calculation of child support.
{¶48} Clough also appears to take issue with the fact that certain records she
attempted to subpoena from Cireddu’s employers were not provided and contends that
these records related to Cireddu’s “employment income.” Cireddu provided the
documentation from his employment, in the form of W-2s and paystubs and, as noted
above, Clough informed the court that she was satisfied she had received the
necessary documentation to rest her case.
{¶49} While Clough also argues that she was not given a hearing related to
these discovery issues, she was given the opportunity to discuss these issues at the
hearings on her motions, as well as adequate opportunity to respond to Cireddu’s
assertions regarding discovery through written pleadings.
{¶50} Finally, Clough raises an argument regarding whether the trial court erred
in failing to use certain documentation to calculate child support. As this issue relates to
child support and not discovery, we will address it in the subsequent analysis.
{¶51} Clough’s first assignment of error is without merit.
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{¶52} In Clough’s second assignment of error, she argues that the trial court
erred in using amounts to calculate child support that were not supported by
documentation.
{¶53} “[A] trial court’s decision regarding child support obligations falls within the
discretion of the trial court and will not be disturbed absent a showing of an abuse of
discretion.” (Citation omitted.) Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d
1108 (1997).
{¶54} Pursuant to R.C. 3119.05, “[w]hen a court computes the amount of child
support required to be paid under a court child support order * * * [t]he parents’ current
and past income and personal earnings shall be verified by electronic means or with
suitable documents, including, but not limited to, paystubs, employer statements,
receipts and expense vouchers related to self-generated income, tax returns, and all
supporting documentation and schedules for the tax returns.”
{¶55} While Clough is correct that a child support calculation should be
supported by documentation, such documentation was provided and considered by the
court to aid in determining Cireddu’s income, including his paystubs and/or W-2s from
several jobs he held during the past few years. However, an additional factor that was
relevant in this case was that Cireddu’s consulting income was not consistent from year
to year. This was evidenced by the fact that he made approximately $33,000 from
consulting work in 2011 but made approximately $106,000 in 2012. Documentation
alone cannot be used to determine what Cireddu’s income may be in future years.
Courts have noted that when a party has a changing income, the trial court can exercise
its discretion to make an income determination for the purposes of child support. See
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Onyshko v. Onyshko, 11th Dist. Portage No. 2008-P-0035, 2010-Ohio-969, ¶ 90 (in light
of the party’s “variable incomes,” the trial court did not abuse its discretion in
determining the applicable income for child support purposes); Hahn v. Hahn, 9th Dist.
Medina No. 11CA0064-M, 2012-Ohio-2001, ¶ 42 (the trial court did not err in accepting
the wife’s testimony to estimate her income). As this court has noted in the context of
income averaging for the purposes of child support, “‘[i]t is no more “fair” to penalize a
parent and order much higher child support after an uncommonly good financial year,
than it would be to penalize the child for a parent’s temporary decline in income.’”
(Citation omitted.) Maiden v. Maiden, 11th Dist. Lake No. 2010-L-076, 2011-Ohio-2841,
¶ 17.
{¶56} Clough asserts that the trial court also erred in finding that $6,000 was an
appropriate amount of child care to credit toward Cireddu. She takes issue with the fact
that Cross-Cireddu, the children’s caregiver, was not paid a typical wage and that
$6,000 specifically allotted to child care was never paid to her. We cannot find that the
trial court abused its discretion in determining this amount.
{¶57} A review of the testimony demonstrates that Cireddu claimed this amount
for child care on his tax returns. He also testified that he made various payments for his
mother, including car payments, house payments, and other expenses. While these
payments were not directly for child care, the testimony established that they were
made in lieu of actual payments for child care. While it was difficult to differentiate how
much of this payment was for child care and how much was for other reasons, such as
providing a home for his children, the amount determined by the trial court was not an
abuse of discretion.
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{¶58} Clough also argues that she should have received repayment for past
child support, since the amount of child care Cireddu pays was determined by the court
to be only $6,000, rather than the $14,400 amount under the past child support order.
The trial court in the present matter merely determined that, as of the time of the
hearing, $6,000 was a reasonable sum for child care. It did not find that Clough had
overpaid for child care over the past years. We find no basis for determining that the
trial court abused its discretion in not making such a finding.
{¶59} Finally, Clough takes issue with the trial court’s failure to allow her to
submit new evidence regarding Cireddu’s residence in her Objections to the
Magistrate’s Decision.
{¶60} Pursuant to Civ.R 53(D)(4)(d), in ruling on a party’s objections to the
magistrate’s decision, “the court may hear additional evidence but may refuse to do so
unless the objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.” Clough did
not raise this matter in her objections to the Magistrate’s Decision but raised it
separately in a response to Cireddu’s objections. She did not describe the evidence
she had in support of her contentions or explain why she could not have discovered this
evidence during the course of the proceedings. In fact, when she raised this issue, she
even noted that Cireddu’s intention to move “likely already [had] been put into motion at
the time of the hearings.” In addition, this evidence was raised in response to Cireddu’s
assertion that equal visitation should not be permitted. Since the court upheld the
Magistrate’s Decision in Clough’s favor as to this issue, it was unnecessary for the court
to consider the evidence for the purposes that Clough sought to have it admitted.
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{¶61} Clough’s second assignment of error is without merit.
{¶62} In Clough’s third assignment of error, she argues that the trial court erred
by failing to order an amount of child support that deviates from the child support
schedule and worksheet, since she will be spending equal time with the children and
makes less money than Cireddu.
{¶63} R.C. 3119.02 provides that, in any action where a child support order is
issued or modified, the court shall calculate the amount of child support pursuant to “the
basic child support schedule, the applicable worksheet, and the other provisions of
sections 3119.02 to 3119.24 of the Revised Code.” “The court may order an amount of
child support that deviates from the amount of child support that would otherwise result
from the use of the basic child support schedule and the applicable worksheet, * * * if,
after considering the factors and criteria set forth in section 3119.23 of the Revised
Code, the court determines that the amount calculated pursuant to the basic child
support schedule * * * would be unjust or inappropriate and would not be in the best
interest of the child.” R.C. 3119.22. “Any court-ordered deviation from the applicable
worksheet and the basic child support schedule must be entered by the court in its
journal and must include findings of fact to support such determination.” Marker v.
Grimm, 65 Ohio St.3d 139, 601 N.E.2d 496 (1992), paragraph three of the syllabus.
{¶64} As an initial matter, it is questionable whether this matter was properly
raised before the trial court. Although Clough initially asserted in her Motion to
Recalculate Child Support that a change in visitation and the parties’ incomes warranted
a change in the child support, during the hearing, she did not explain her basis for a
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deviation from the child support worksheet. She submitted to the trial court a child
support worksheet that listed child support at $439.41.
{¶65} Clough did note that her estimated recalculation did not take into account
any changes in visitation, but presented no further information in support of a deviation
and did not state specifically that she was requesting a deviation. Clough also failed to
present evidence regarding the deviation, showing why the child support award was
unjust, or why the support ordered under the worksheet would not be in the best interest
of the child. In the absence of such evidence, the trial court has little basis to determine
that a deviation was in the best interest of the children or was necessary in this case.
{¶66} Although Clough argues that equal parenting time provides a sufficient
basis to grant a deviation, a trial court is not required to grant a deviation on such
grounds, especially where, in this case, there is a lack of evidence to show the costs
that she would incur through this increased parenting time. Courts have concluded that
equal parenting time does not mandate a deviation from child support obligations. See
Peters v. Peters, 11th Dist. Lake No. 2004-L-198, 2006-Ohio-3644, ¶ 19-23; Glassner v.
Glassner, 160 Ohio App.3d 648, 2005-Ohio-1936, 828 N.E.2d 642, ¶ 48 (5th Dist.).
{¶67} This court has also emphasized that there is “‘no authority for requiring a
trial court to deviate from the child support guidelines merely because a deviation would
be permissible, or even desirable.’” (Citations omitted.) (Emphasis sic.) Kosovich v.
Kosovich, 11th Dist. Lake No. 2004-L-075, 2005-Ohio-4774, ¶ 17. Further, when the
trial court properly calculates the child support and the court does not deviate from that
amount, “the court does not need to justify its decision.” Id. at ¶ 18.
{¶68} Clough’s third assignment of error is without merit.
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{¶69} In Clough’s fourth assignment of error, she argues that the trial court erred
by failing to designate which parent should be permitted to claim a tax deduction for the
children.
{¶70} Cireddu argues that there is a presumption in favor of the residential
parent receiving the tax exemption.
{¶71} “[T]he trial court has broad discretion in making a determination
concerning the allocation of dependency exemptions for tax purposes.” Stauffer v.
Stauffer, 11th Dist. Geauga No. 2008-G-2860, 2009-Ohio-998, ¶ 32.
{¶72} Pursuant to R.C. 3119.82, “[w]henever a court * * * modifies, reviews, or
otherwise reconsiders a court child support order, it shall designate which parent may
claim the children who are the subject of the court child support order as dependents for
federal income tax purposes.” Such a designation is generally required when issuing a
child support order. See Henderson v. Henderson, 3rd Dist. Mercer No. 10-01-17,
2002-Ohio-2720, ¶ 9.
{¶73} In the present case, the court did not explicitly state which parent was
designated for the purposes of the tax exemption. However, the trial court did note in its
September 9, 2013 Judgment Entry on the objections to the Magistrate’s Decision that
“[a]ll orders currently in effect which are not modified by the explicit terms of this order
remain in full force and effect.” On August 13, 2009, a Magistrate Order was issued,
and subsequently adopted by the trial court, ordering that Cireddu claim the children as
dependents for tax purposes for every year thereafter. Since this order was not
modified, it remains in full force and effect and acts as the designation of the court on
the tax exemption issue. The determination to allow Cireddu to retain the tax exemption
17
is also consistent with the presumption in favor of the custodial parent in the allocation
of the exemption, in the absence of evidence supporting a contrary determination. See
Mustafa v. Elfadli, 5th Dist. Delaware No. 12 CAF 08 0058, 2013-Ohio-1644, ¶ 74, citing
Singer v. Dickinson, 63 Ohio St.3d 408, 411, 588 N.E.2d 806 (1992).
{¶74} Clough’s fourth assignment of error is without merit.
{¶75} Since Cireddu’s assignments of error on cross-appeal both relate to the
determination of visitation/parenting time and whether it is in the children’s best interest,
we will consider them jointly.
{¶76} “A trial court has broad discretion to modify visitation rights.” Victor v.
Miller, 11th Dist. Lake No. 2000-L-177, 2002 Ohio App. LEXIS 1905, 10 (Apr. 19,
2002); Braatz v. Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph two of
the syllabus (a trial court, in considering a change in visitation rights, “in its sound
discretion shall determine visitation that is in the best interest of the child”).
{¶77} “Modification of visitation rights is governed by R.C. 3109.051.” (Citation
omitted). Braatz, at paragraph one of the syllabus. “Pursuant to R.C. 3109.051(D), * *
* the trial court shall consider the fifteen factors enumerated therein,” to determine the
best interest of the child. Id. at 45. “The party requesting a change in visitation rights
need make no showing that there has been a change in circumstances in order for the
court to modify those rights.” In re S.B., 11th Dist. Ashtabula No. 2010-A-0019, 2011-
Ohio-1162, ¶ 101.
{¶78} Cireddu asserts that Clough must prove the existing parenting time
arrangement is not in the best interest of the children and that the children were not
doing well under these circumstances. In determining whether modification of visitation
18
is proper, this court has considered whether the change in visitation is generally in the
child’s best interest, not only whether the present circumstances are not in the best
interest of the child. S.B. at ¶ 101; Braden v. Braden, 11th Dist. Portage No. 2006-P-
0028, 2006-Ohio-6878, ¶ 36. As discussed above, the best interest determination is
arrived at by evaluating the statutory factors. If the lower court concluded that
increased visitation with Clough was in their best interest, it would follow that not
allowing such an increase is not in their best interest. Thus, even if the children were
doing well in their current living arrangement with Cireddu, this does not mean that it is
not in their best interest to have increased visitation with Clough.
{¶79} Cireddu also argues that it was not in the children’s best interest for
Clough to be granted increased parenting time, in an amount giving each parent equal
time with the children. While Cireddu places great emphasis on the fact that the
children are currently doing well in his home, all of the factors required under R.C.
3109.051(D) must be considered by the trial court. S.B. at ¶ 102 (one factor under R.C.
3109.051(D) “is not determinative” of the best interest issue).
{¶80} In the present case, the Magistrate’s Decision listed each of the
appropriate factors to consider and provided specific analysis as to each relevant factor.
It specifically noted that the children have a good relationship with Clough and their half-
sister, that the parties live in close proximity, that both parents are dedicated to
spending time with the children, and that the guardian ad litem recommended equal
parenting time. Thus, the court complied with the requirement to determine the best
interest of the children pursuant to R.C. 3109.051(D).
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{¶81} Cireddu raises several specific arguments to support his contention that
the trial court abused its discretion in granting Clough increased visitation. First, he
asserts that the magistrate neglected to address the fact that the children’s
grandmother, Cross-Cireddu, would no longer be able to care for the children since she
would lose the full amount of compensation she was paid to take care of the children on
a daily basis. We note, however, that this appears to be more about the inconvenience
to Cireddu and his mother, rather than in relation to the best interest of the children.
Even if Cross-Cireddu was no longer able to care for the kids, which she did not testify
to, there is no basis for finding that any other caregiving situation arranged by Cireddu
will not be in their best interest.
{¶82} Cireddu also argues that the magistrate failed to properly address
Clough’s unwillingness to facilitate a relationship with him and the difficulty that the two
have in interacting with each other, based on Clough’s actions toward him. It is clear
that the magistrate took this factor into consideration, noting that they have an “inability
to get along.” However, it does not appear that a change in the visitation schedule will
have an impact on the children or the relationship of the parties, given that they will still
have to communicate and interact when exchanging the children and discussing
matters relevant to the children. Allowing extended visitation will not alter this fact.
Further, as the court noted, while the two parents have difficulty cooperating, the
evidence established that Clough “exercises her court-ordered parenting time regularly
without incident or interference.” No evidence was presented by Cireddu that Clough
has denied him information or phone calls with the children in the past while they were
exercising their visitation.
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{¶83} Cireddu also asserts that spending more time with Clough will serve to
increase the children’s anxiety, given that it will disrupt their lives, and that the
conditions at Clough’s home, including discussion of legal matters, will have a
detrimental impact on the children. The court specifically noted that there was no
psychological evidence presented to back up the claims that the children exhibited
trauma when returning from their mother’s home. The court ultimately found that,
regardless of Cireddu’s testimony, the children did not exhibit any mental health issues
and that neither parent presents a risk of harm to the children. While the trial court may
not have accepted all of Cireddu’s testimony regarding the effects visitation has on the
children, appellate courts generally defer to the lower court on matters of credibility,
especially in cases involving child custody/visitation, “where there may be much evident
in the parties’ demeanor and attitude that does not translate to the record well.” Davis
v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶84} Also, the court did not err in failing to find that the children’s lives would be
“very fractionated” or that the new visitation arrangement would interfere with their
activities or abilities to maintain friendships, as argued by Cireddu, given that the
children will remain in the same school district, and the parties live only 15 minutes from
each other. There appears to be no reason why the children could not continue on with
the same schooling, friendships, and activities, regardless of which home they may be
staying at during a given week.
{¶85} Finally, Cireddu takes issue with the GAL’s recommendation, asserting
that the GAL had not seen the children recently. However, it is noteworthy that the GAL
has been involved in the case since May of 2011 and has conducted an investigation
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into the best interest of the children as it relates to increased time with their mother.
She has also met with the children in the past. She issued the previous GAL report on
the similar motion requesting shared parenting, which raised comparable
considerations. The trial court was entitled to consider the GAL’s recommendation and
afford it the appropriate weight.
{¶86} Based on the foregoing, the existence of multiple factors outlined by the
court in favor of the change in visitation, and the applicability of the abuse of discretion
standard, we cannot find that the lower court erred in adopting the Magistrate’s Decision
and granting Clough increased visitation with the children.
{¶87} Cireddu’s first and second assignments of error on cross-appeal are
without merit.
{¶88} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas, Juvenile Division, granting Clough’s Motion to Modify Parenting
Time/Visitation and Motion to Recalculate Child Support, is affirmed. Costs to be taxed
against the parties equally.
TIMOTHY P. CANNON, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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