Ward v. Ward , 2017 Ohio 579 ( 2017 )

[Cite as Ward v. Ward, 2017-Ohio-579.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TODD WARD : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
STEPHANIE WILSON : Case No. 16-COA-025 & 16-COA-027
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Juvenile
Division, Case Nos. 20134067 and
20134068
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 13, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BARRY ECKSTEIN JAY F. CROOK
5 West College Street Shryock, Crook & Associates, LLP
Oberlin, Ohio 44074 30601 Euclid Avenue
Wickliffe, Ohio 44092
Ashland County, Case No. 16-COA-025 & 16-COA-027 2
Baldwin, J.
{¶1} Defendant-appellant Stephanie Wilson appeals from the June 21, 2016
Opinion and Judgment Entry of the Ashland County Court of Common Pleas, Juvenile
Division, modifying its previous parenting time order.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Stephanie Wilson and appellee Todd Ward, who have never been
married, have two children together, namely, Tristan (DOB 11/01/08) and Thomas (DOB
9/1/11). After appellee filed complaints to establish parental rights and responsibilities, a
hearing was held before a Magistrate. As memorialized in an Opinion and Judgment Entry
filed on February 1, 2016, the trial court ordered that appellant be designated the
residential parent and legal custodian of the children. The trial court further granted
appellee parenting time with the children. The trial court’s Judgment Entry provided, in
relevant part, as follows:
{¶3} A. Todd Ward shall have parenting time with the children on alternate
weekends from Friday evening to Sunday evening as set forth in the Rule. Provided,
however, that any week school is not in session, and if that is a week that Mr. Ward is to
have parenting time, then his parenting times shall commence on Thursday at 6:00 P.M.
and end on Sunday at 6:00 P.M.
{¶4} B. There shall be no mid-week parenting time at the present time. If the
location of the parties respective residences should change so that mid-week parenting
time is feasible, then this Order can be modified accordingly.
Ashland County, Case No. 16-COA-025 & 16-COA-027 3
{¶5} C. Todd Ward shall have extended parenting time with the children for a
period of forty (40) days with all other provisions of Local Rule 20 regarding parenting
times to apply.
{¶6} D. Todd Ward shall have parenting time with the children on holidays
pursuant to the holiday schedule as set forth in Local Rule 20.
{¶7} E. Except as otherwise modified herein the Court does hereby adopt as
the Order of the Court all provisions as contained in Local Rule 20 and the parties shall
comply with those provisions.
{¶8} No direct appeal was filed.
{¶9} Appellee, on April 18, 2016, filed a “Motion to Modify Parenting for Plaintiff,
to Confirm Plaintiff’s Vacation Parenting Time for 2016 and to Confirm the Summer Time
Baseball Program for Parties’ Minor Child.” Appellee, in his motion, asked that the trial
court’s parenting time schedule be modified with respect to Tristan because the trial
court’s parenting time schedule did not provide for mid-week visitation. Appellee further
sought an order granting him a total of 59 days of visitation and an order allowing Tristan
to participate in a specified summer baseball program. In response, appellant filed a
Motion to Dismiss and Motion for Sanctions. Appellant, in her motion, argued that
appellee had failed to allege any change of circumstances since the trial court’s February
1, 2016 Order, that appellee’s motion alleged violations of the trial court’s Order that did
not exist, and that appellee failed to identify any legal grounds entitling him to the relief
requested. Appellant also argued that appellee had misinterpreted the language in the
trial court’s Order with respect to the amount of parenting time to which he was entitled.
Ashland County, Case No. 16-COA-025 & 16-COA-027 4
{¶10} A hearing before the trial court was held on June 20, 2016. The trial court,
in a June 21, 2016 Opinion and Judgment Entry, stated that it was not necessary to
determine whether a change of circumstances had occurred in order to modify parenting
time. The trial court stated that mid-week parenting time originally was not ordered
because the parties lived an hour and a half away from each other and mid-week
parenting time would not be feasible. The trial court found that because appellee’s request
for mid-week parenting time was based upon the condition that appellee would exercise
the time in the City of Chardon, where the children resided with their mother, it would be
in the children’s best interest to grant mid-week parenting time. The trial court also
clarified its February 1, 2016 Judgment Entry by stating that its intent was to provide
appellee with forty (40) days of parenting time rather than the twenty-eight (28) days
provided for in Local Rule 20. Appellee had interpreted the trial court’s February 1, 2016
Judgment Entry as granting him the forty (40) days in addition to the twenty-eight (28)
days.
{¶11} The trial court, in its June 21, 2016 Order, found that the parties continued
to have communication problems and “were not able to engage in meaningful
discussions.” For these reasons, the trial court modified certain provisions in its February
1, 2016 Order “to minimize conflicts and litigation.” Finally, the trial court overruled
appellant’s Motion to Dismiss, Motion for Sanctions and the portion of appellee’s motion
concerning summer baseball.
{¶12} Appellant now appeals from the trial court’s June 21, 2016 Opinion and
Judgment Entry, raising the following assignments of error on appeal:
Ashland County, Case No. 16-COA-025 & 16-COA-027 5
{¶13} WHETHER THE TRIAL COURT ABUSES ITS DISCRETION IN FAILING
TO APPLY THE BEST INTEREST FACTORS FROM 3109.051 IN MAKING A RULING
MODIFYING VISITATION BASED ON A MOTION FILED LESS THAN THREE MONTHS
FROM ITS PREVIOUS OPINION AND ORDER.
{¶14} WHETHER THE TRIAL COURT ABUSES ITS DISCRETION WHEN IT
MODIFIES A VISITATION SCHEDULE WITHOUT FINDING A CHANGE IN
CIRCUMSTANCES EFFECTING (SIC) THE BEST INTEREST OF THE CHILDREN.
I, II
{¶15} Appellant, in her two assignments of error, argues that the trial court abused
its discretion in modifying visitation rights. We disagree.
{¶16} Upon review, an appellate court will not reverse the trial court's
determinations as to visitation issues absent an abuse of discretion. In re Whaley, 86
Ohio App. 3d 304, 317, 620 N.E.2d 954 (4th Dist.1993), citing Booth v. Booth, 44 Ohio
St.3d 142, 541 N.E.2d 1028 (1989). An abuse of discretion implies that the court's attitude
in reaching its decision was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983). Moreover, an appellate court
will defer to a trial court's factual resolutions of conflicting opinions and testimony, as the
trial court is in the best position to observe the witnesses' voice inflections, demeanor,
and gestures, to assess credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80,
461 N.E.2d 1273 (1984).
{¶17} Contrary to appellant’s assertion, a “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.” Braatz v. Braatz, 85 Ohio St. 3d 40, 1999 -Ohio- 203,
Ashland County, Case No. 16-COA-025 & 16-COA-027 6
706 N.E.2d 1218, paragraph two of the syllabus. Rather, a “[m]odification of visitation
rights is governed by R.C. 3109.051.” Id. at paragraph one of the syllabus. “Pursuant to
R.C. 3109.051(D), the trial court shall consider the fifteen factors enumerated therein,
and in its sound discretion shall determine visitation that is in the best interest of the child.”
Id. at paragraph two of the syllabus.
{¶18} R.C. 3109.051(D) states as follows:
{¶19} (D) 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:
{¶20} (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;
{¶21} (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;
Ashland County, Case No. 16-COA-025 & 16-COA-027 7
{¶22} (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;
{¶23} (4) The age of the child;
{¶24} (5) The child's adjustment to home, school, and community;
{¶25} (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;
{¶26} (7) The health and safety of the child;
{¶27} (8) The amount of time that will be available for the child to spend with
siblings;
{¶28} (9) The mental and physical health of all parties;
{¶29} (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;
{¶30} (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 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
Ashland County, Case No. 16-COA-025 & 16-COA-027 8
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;
{¶31} (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;
{¶32} (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;
{¶33} (14) Whether either parent has established a residence or is planning to
establish a residence outside this state;
Ashland County, Case No. 16-COA-025 & 16-COA-027 9
{¶34} (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;
{¶35} (16) Any other factor in the best interest of the child.
{¶36} The central focus of any visitation order is the best interests of the children.
Kelm v. Kelm, 92 Ohio St. 3d 223, 226, 2001-Ohio-168, 749 N.E.2d 299. “A trial court may
limit or restrict visiting rights of a party in order to further the child's best interest.”
Callender v. Callender, 7th Dist. Carroll No. 03–CA–790, 2004–Ohio–1382, at ¶ 31. The
court has the “power to restrict the time and place of visitation, to determine the conditions
under which visitation will take place and to deny visitation rights altogether if visitation
would not be in the best interests of the child.” Id., quoting Anderson v. Anderson, 147
Ohio App. 3d 513, 2002–Ohio–1156, 771 N.E.2d 303 (7th Dist.), at ¶ 18, and Jannetti v.
Nichol, 7th Dist. No. 97 CA 239 (May 12, 2000).
{¶37} If it is clear from the record the court considered the factors in R.C.
3109.051, even if the statute or the factors are not specifically referenced, we will not find
an abuse of discretion. Troyer v. Troyer, 7th Dist. Jefferson No. 09 JE 5, 2010–Ohio–
3276, at ¶ 36, 188 Ohio App. 3d 543, 936 N.E.2d 102. “[I]t is not an abuse of discretion
when it appears from the journal entry that some of the factors under that section were
addressed.” Bernard v. Bernard, 7th Dist. Columbiana No. 00 CO 25, 2002 WL 206411
(Jan. 30, 2002).
{¶38} We find that the trial court did not abuse its discretion in modifying the
parties’ parenting time order because the trial court’s decision was not arbitrary,
unconscionable or unreasonable. In the case sub judice, the trial court, in its June 21,
Ashland County, Case No. 16-COA-025 & 16-COA-027 10
2016 Opinion and Judgment Entry, stated that it had considered all of the best interest
factors in its previous decision entering a parenting time order between appellee and the
children and that it considered the factors again in modifying the same. The trial court
stated that the parties continued having communication problems and did not
communicate and that “this has a detrimental and adverse impact on the children.” The
trial court further stated that because the parties were unable to engage in “meaningful
discussions” and were not flexible as to parenting time issues, “[t]his has created a
situation where a more specific Order may be needed in order to minimize conflicts and
litigation.” The trial court further noted that its original parenting time order was based
on the fact that appellee lived too far from the children for mid-week visitation to be
feasible, but that appellee had agreed to exercise such time where the children resided.
{¶39} Based on the foregoing, we find that the trial court did not err in modifying
the parenting time order.
{¶40} Appellant’s two assignments of error are, therefore, overruled.
Ashland County, Case No. 16-COA-025 & 16-COA-027 11
{¶41} Accordingly, the judgment of the Ashland County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.