In re E.R. , 2022 Ohio 3658 ( 2022 )

[Cite as In re E.R., 2022-Ohio-3658.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: E.R. :
:
: Appellate Case No. 29515
:
: Trial Court Case No. G-2018-1755-0N,
: 0P
:
: (Appeal from Common Pleas
: Court – Juvenile Division)
:
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OPINION
Rendered on the 14th day of October, 2022.
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Mother, Dayton, Ohio
Appellant, Pro Se
Father, Dayton, Ohio
Appellee, Pro Se
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EPLEY, J.
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{¶ 1} Appellant (“Mother”) appeals from a judgment of the Montgomery County
Court of Common Pleas, Juvenile Division, which granted Appellee’s (“Father”) motion
for a change of parenting time. For the reasons that follow, the judgment of the trial court
will be affirmed.
I. Facts and Procedural History
{¶ 2} Mother and Father are the biological parents of their daughter, E.R. In 2018,
Father was ordered to provide child support payments to Mother for the benefit of E.R.,
and while Mother had custody of the child, Father was granted parenting time. Between
2018 and 2022, the parties were before the trial court multiple times for modifications to
support and parenting time and for contempt hearings.
{¶ 3} The genesis of this appeal was Father’s August 10, 2021 motion for a change
of parenting time, which aimed to bring about the modification of a prior order entered
June 17, 2020. At a November 30, 2021 hearing at which both parties appeared pro se,
Father testified that he had requested the parenting time modification because his work
schedule had changed; instead of working second shift, he was now on first shift, and he
had Mondays and Tuesdays off. He told the magistrate that he and Mother had worked
out a tentative schedule in which, every other week, he would have E.R. from Monday at
8 a.m. until Tuesday at 5:00 p.m. The magistrate then asked Mother if she was satisfied
with that arrangement, and she confirmed that she was. Hearing Tr. at p. 7, 21.
{¶ 4} Later in the hearing, Mother presented the magistrate with a long-term
schedule she had created that divided up parenting time for the holidays. The magistrate,
then, made two suggestions. First, she urged the parties to voluntarily adopt the
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“Standard Order of Parenting” which automatically divides holidays between parents.
Second, she recommended setting aside seven consecutive days for vacations each
summer. Father agreed to the proposal, but Mother did not.
{¶ 5} Following Father’s testimony, Mother was given a chance to testify, but
instead of doing so, she merely presented her parenting time proposal, which was
admitted as Exhibit A. The magistrate told the parties that she would consider Father’s
testimony, Mother’s exhibit, and decide whether to modify Father’s parenting time within
a few days.
{¶ 6} On December 1, 2021, the magistrate issued her decision, which granted
Father’s request to modify parenting time. Father was granted parenting time with E.R.
every other Monday from 8 a.m. to Tuesday at 5:00 p.m. The parties were ordered to
follow the “Standard Order of Parenting” for holidays, Mother’s/Father’s Day and the
child’s birthday, and each parent was granted no less than seven continuous days for
vacation per year with 30 days advanced notice. Mother objected to the order, arguing
that the magistrate erred in failing to adopt her proposed parenting plan as outlined in
Exhibit A.
{¶ 7} On May 17, 2022, the trial court overruled Mother’s objection to the
magistrate’s decision and issued an order following the magistrate’s decision. This
appeal followed.
II. Parenting Time
{¶ 8} Although Mother’s pro se brief does not follow the form prescribed by the
Appellate Rules and does not raise any assignments of error, we interpret her brief as
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challenging the trial court’s adoption of the “Standard Order of Parenting” to govern
parenting time on holidays and birthdays.
{¶ 9} When modifying visitation, a trial court considers the factors set forth in R.C.
3109.051(D) and then determines, using its sound discretion, the visitation schedule in
the best interest of the children. Braatz v. Braatz, 85 Ohio St.3d 40, 45, 706 N.E.2d 1218(1999). “We will not reverse a trial court’s decision on a motion for modification of visitation
rights absent an abuse of discretion.” Quint v. Lomakoski, 2006-Ohio-3041, 854 N.E.2d
225, ¶ 12 (2d Dist.). To constitute an abuse of discretion, a trial court’s action must be
arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ.,
12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). It is to be expected, however, that most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark
No. 2011-CA-21, 2012-Ohio-2664, ¶ 24.
{¶ 10} R.C. 3109.051 lists 15 factors that a trial court must consider when
determining parenting time matters, including: the prior interaction and interrelationships
of the child and parents; the location of each parent’s residence; the child and parents’
available time; the age of the child; the child’s adjustment to home, school, and
community; the child’s wishes; the health and safety of the child; the amount of time that
will be available for the child to spend with siblings; the mental and physical health of all
parties; each parent’s willingness to reschedule missed time; the criminal history of the
parents involving acts that resulted in a child being abused or neglected; whether either
parent has continuously and willfully denied the other parent’s right to parenting time;
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whether either parent has established or plans to establish an out-of-state residence; and
any other factor in the best interest of the child. Quint at ¶ 13; Braatz at 45; R.C.
3109.051(D).
{¶ 11} In its decision, the trial court analyzed all 15 factors, finding several to be
particularly important. For instance, the court found the “child and parents’ available time”
factor to weigh heavily in favor of modifying the parenting time schedule because Father
had moved from second shift to first shift at work and his new days off were Monday and
Tuesday. The court also noted that to see E.R. under the previous schedule, Father was
forced to use all his sick leave, which caused disciplinary issues at work. Changing the
parenting time schedule to accommodate Father’s work schedule was in the best interest
of the child.
{¶ 12} The court found two other factors particularly important. The court found
that granting Father’s motion to modify the schedule would increase the time available for
E.R. to spend with her siblings. Father testified that E.R. would be better able to visit with
her older half-brother if he were given parenting time on Mondays and Tuesdays, and
particularly if he were awarded seven consecutive days of parenting time in the summer
for vacations. The court also found that Mother’s unwillingness to facilitate Father’s
parenting time militated toward granting Father’s motion. Specifically, the court noted that
while Mother had initially agreed to implement the Monday-Tuesday schedule in recent
weeks, her track record of compliance was questionable, as records showed that in
August 2021, Mother was found in contempt regarding parenting time. Ordering the new
schedule instead of relying on Mother’s good faith compliance was in the best interest of
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E.R.
{¶ 13} After analyzing all of the applicable factors, the trial court concluded that
modifying Father’s parenting time as described above was in the best interest of E.R.,
and after considering the record, we cannot conclude that the trial court abused its
discretion in doing so. Modifying Father’s parenting time so that he could spend more
time with E.R. without risking his job in the process was in everyone’s best interest.
Mother’s challenge to the trial court’s modification of parenting time is overruled.
III. Conclusion
{¶ 14} The judgment of the trial court will be affirmed.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Mother
Father
Hon. Anthony Capizzi