Palichat v. Palichat , 2019 Ohio 1379 ( 2019 )

[Cite as Palichat v. Palichat, 2019-Ohio-1379.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
ELIZABETH A. PALICHAT :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-42
:
v. : Trial Court Case No. 2015-DR-69
:
ERIC G. PALICHAT : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of April, 2019.
...........
MICHAEL A. HOCHWALT, Atty. Reg. No. 0017688, 500 Lincoln Park Boulevard, Suite
216, Kettering, Ohio 45429
Attorney for Plaintiff-Appellee
EDWARD F. WHIPPS, Atty. Reg. No. 0011335 and JOHN C. RUIZ-BUENO, III, Atty.
Reg. No. 0087043, 495 South High Street, Suite 370, Columbus, Ohio 43215
Attorneys for Defendant-Appellant
.............
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HALL, J.
{¶ 1} Eric G. Palichat appeals from the trial court’s judgment entry overruling his
motion to terminate shared parenting and sustaining appellee Elizabeth A. Palichat’s
motion to modify an existing shared-parenting plan.
{¶ 2} Eric advances three assignments of error. First, he contends the trial court
erred in continuing shared parenting instead of awarding him legal custody of the parties’
children. Second, he claims the trial court erred in ordering alternating-week parenting
time. Third, he asserts that the trial court erred in “dismissing” the evaluations of two
expert witnesses and the guardian ad litem “without evaluating them.”
{¶ 3} The record reflects that Eric and Elizabeth married in 2005 and divorced in
2016.1 During the marriage, they had two children who were born in 2012 and 2014. The
agreed divorce decree included a shared-parenting plan. In April 2018, Eric moved to
terminate shared parenting and to obtain legal custody. In May 2018, Elizabeth moved to
modify the shared-parenting plan or, alternatively, for legal custody. Both parties also filed
show-cause motions alleging numerous instances of contempt for non-compliance with
the existing shared-parenting plan.
{¶ 4} The trial court held a two-day hearing on the motions in September 2018. It
heard testimony from nine witnesses. Among others, they included Eric, Elizabeth, Eric’s
new wife Kelly, psychologist Richard Bromberg, and psychologist Barbara Bergman. The
bulk of the testimony consisted of Eric and Elizabeth pursuing a laundry list of purported
contempt violations and accusing each other of being uncooperative, controlling, and
1 For purposes of clarity, we will refer to the parties by their first names.
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undermining efforts at shared parenting. After hearing the testimony and reviewing
various exhibits, including a guardian ad litem’s report and reports from Bromberg and
Bergman, the trial court found it not in the best interest of the children to designate Eric
or Elizabeth the legal custodian. (Doc. #124 at 3.) Instead, the trial court found it in the
children’s best interest to continue shared parenting under a modified plan. (Id.) In support
of this decision, the trial court stated:
* * * The Court is leery about designating one parent the residential
parent and legal custodian because neither parent has demonstrated an
ability to be fair and objective in decision-making. The Court finds that the
fight for control between the parents must end! As a result, the Court finds
that shared parenting continues to be in the children’s best interests, and
the parties shall continue to exercise shared parenting according to the new
Shared Parenting Plan set forth in this Entry.
(Id.)
{¶ 5} The trial court proceeded to set forth the changes it found necessary and
provided the parties with a modified plan. (Id. at 3-11.) It then explained:
The Court has determined that the Shared Parenting Plan above is
in the best interests of the children after considering the testimony of the
parties, the testimony of the witnesses (especially Drs. Bergman and
Bromberg), the GAL, and the exhibits. The Court concludes that the
opinions rendered by Drs. Bergman and Bromberg essentially cancelled
each other out as they were both equally competent but offered competing
recommendations. The Court also reviewed the report issued by the
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Guardian ad Litem and carefully considered his recommendations given his
expertise and familiarity with the parties and the case. However, because
the GAL was not called as a witness, he was excused from the courtroom
at the beginning of day 1 of trial and was not present to observe the
testimony and demeanor of the parties throughout the proceedings, both of
which significantly influenced the decision of the Court.
While Father attempted to portray himself as the more flexible and
reasonable of the parties, his testimony and courtroom demeanor betrayed
this image. The Court found Father’s testimony regarding Mother’s
immediate implementation of the behavior plan set by [their child’s] school
to be particularly telling. The parties were notified that [the child] was
displaying problematic behaviors at school, so the school created a
behavioral plan for [the child] to address the issues. According to the
testimony, this information was shared right before Father was to leave town
for approximately 16 days. Father complained that Mother immediately
began contacting [the child’s] doctors and the school to begin addressing
the problem, rather than waiting more than two weeks for him to return to
town to address the behavioral issues. Further, the Court observed Father
to be highly reactive to testimony he did not agree with, at times displaying
aggressive body language and constantly smirking and shaking his head to
make his feelings known.
By stark contrast, Mother maintained an even, calm demeanor
throughout the proceedings even when the testimony about Mother was
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very negative. When it was Mother’s turn to testify, her explanations made
more sense, were more believable, and made Father’s accusations in his
contempt seem all the more petty. Accordingly, Father’s credibility when he
testified to his flexibility and Mother’s irrationality was significantly
undermined, and Mother’s credibility was bolstered.
While the Court observed Mother to be the more reasonable and
flexible of the parties, the Court does not believe she is so reasonable and
flexible that she should be designated the residential parent. The Court still
harbors significant concerns about Mother’s attempts to undermine Father
and provoke him. For this reason, the Court believes the parties should
continue to share control of the children while maintaining as little contact
as possible.
(Id. at 11-12.)
{¶ 6} After providing the foregoing explanation for its shared-parenting decision,
the trial court declined to find either party in contempt for numerous, relatively petty
alleged violations of the prior shared-parenting plan. The trial court opined that “the terms
of the Plan were impossible to follow, and it would be unjust and inequitable to find either
party in contempt for violating the same.” (Id. at 14.) This appeal by Eric followed.
{¶ 7} In his first assignment of error, Eric claims the trial court erred in continuing
shared parenting rather than awarding him legal custody of the parties’ children. He first
argues that Ohio law does not authorize a trial court “to create its own shared parenting
plan or even to modify a plan that has been proposed by either party.” (Appellant’s brief
at 6.) In support, he cites R.C. 3109.04(D)(1)(a) as well as Schattschneider v.
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Schattschneider, 3d Dist. Auglaize No. 2-06-24, 2007-Ohio-2273, and Koller v. Koller, 2d
Dist. Montgomery No. 22328, 2008-Ohio-758.
{¶ 8} Under R.C. 3109.04(D)(1)(a)(i)-(iii), a trial court can approve an original
shared-parenting plan submitted by either or both parents. It also can order one parent to
submit a proposed shared-parenting plan if the other parent has submitted one. Although
a trial court can disapprove an originally submitted plan and can request modifications,
the parties themselves must make the modifications and give them to the court. Nothing
in R.C. 3109.04(D)(1) authorizes a trial court to craft its own original shared-parenting
plan or to modify an original plan submitted by the parties. This court recognized in Koller
that R.C. 3109.04(D)(1) “does not allow a court to create its own shared parenting plan”
and that it must issue a plan submitted by one or both of the parties. Koller at ¶ 26.
Likewise, in Schattschneider the Third District recognized that the statute does not permit
a trial court to craft its own shared-parenting plan. It can only voice its objections to a
proposed plan, ask for modifications, and deny approval if not satisfied. Schattschneider
at ¶ 6-7.
{¶ 9} Notably, however, R.C. 3109.04(D)(1) appears to address a shared-
parenting plan created in connection with an initial allocation of parental rights. Elizabeth
correctly points out that another provision, R.C. 3109.04(E)(2)(b), authorizes a trial court
to make its own modifications to the terms of an existing shared-parenting plan at any
time. It may do so on its own motion or at the request of either party as long as the
modifications are in the best interest of the children. See Fisher v. Hasenjager, 116 Ohio
St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 11 (recognizing that “[o]nce a shared-
parenting decree has issued, R.C. 3109.04(E) governs modification of the decree”).
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{¶ 10} In his reply brief, Eric acknowledges that R.C. 3109.04(E)(2)(b) authorizes
a trial court to make its own modifications to the terms of a shared-parenting plan. Despite
that concession, he contends the trial court erred in doing so here. Even if R.C.
3109.04(E)(2)(b) applied, Eric argues in both his opening brief and his reply that the trial
court failed to address or even cite any statutory best-interest factors. Therefore, he
contends the trial court could not proceed under R.C. 3109.04(E)(2)(b).
{¶ 11} Eric also suggests that R.C. 3109.04(E)(2)(b) applies only when a trial court
modifies “a few select provisions” of a shared-parenting plan. (Appellant’s reply brief at
5.) In light of the substantial changes the trial court made here, Eric appears to argue that
it was obligated to proceed under R.C. 3109.04(E)(1)(a), not R.C. 3109.04(E)(2)(b), if it
wanted to make its own modifications to the parties’ shared-parenting plan. Eric notes
that R.C. 3109.04(E)(1)(a) imposes more stringent standards for making modifications,
including a requirement of a change in circumstances.
{¶ 12} In Fisher, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, the Ohio
Supreme Court analyzed and discussed R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b)
in the context of a shared-parenting plan. Section 3109.04(E)(1)(a) provides:
The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on facts
that have arisen since the prior decree or that were unknown to the court at
the time of the prior decree, that a change has occurred in the
circumstances of the child, the child’s residential parent, or either of the
parents subject to a shared parenting decree, and that the modification is
necessary to serve the best interest of the child. In applying these
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standards, the court shall retain the residential parent designated by the
prior decree or the prior shared parenting decree, unless a modification is
in the best interest of the child and one of the following applies
(i) The residential parent agrees to a change in the residential parent or both
parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents
under a shared parenting decree, has been integrated into the family of the
person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the child.
(Emphasis added.)
{¶ 13} Section 3109.04(E)(2)(b) provides:
In addition to a modification authorized under division (E)(1) of this
section:
***
(b) The court may modify the terms of the plan for shared parenting
approved by the court and incorporated by it into the shared parenting
decree upon its own motion at any time if the court determines that the
modifications are in the best interest of the children or upon the request of
one or both of the parents under the decree. Modifications under this
division may be made at any time. The court shall not make any modification
to the plan under this division, unless the modification is in the best interest
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of the children.
(Emphasis added.)
{¶ 14} In Fisher, the Ohio Supreme Court recognized that R.C. 3109.04(E)(1)(a)
applies when a trial court modifies a prior decree allocating parental rights and
responsibilities and designating a residential parent and legal custodian. On the other
hand, R.C. 3109.04(E)(2)(b) applies when a trial court modifies the terms of a prior
shared-parenting plan that has been incorporated into a prior decree. We followed Fisher
in Gessner v. Gessner, 2d Dist. Miami No. 2017-CA-6, 2017-Ohio-7514, and noted that
parenting time, child support, and the designation of residential parent for school
purposes have all been held to be terms of a shared parenting plan that only require a
“best interest” evaluation for modification. Id. at ¶ 35. Moreover, under R.C. 3109.04(G),
a shared parenting plan may include provisions relevant to the care of a child, such as
the child's living arrangements, medical care, and school placement. We contrasted these
modifiable terms of a shared parenting plan, which require only a best interest analysis,
with changing a designation of the residential parent and legal custodian in a decree,
which requires a change of circumstances. Id.
{¶ 15} The Fisher majority explained that “the residential parent and legal
custodian is the person with the primary allocation of parental rights and responsibilities.
When a court designates a residential parent and legal custodian, the court is allocating
parental rights and responsibilities.” Fisher at ¶ 23. “A court also allocates parental rights
and responsibilities when it issues a shared-parenting order. R.C. 3109.04(A)(2). A court
may allocate parental rights and responsibilities for the care of a child to both parents and
issue a shared-parenting order requiring the parents to share all or some of the aspects
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of the physical and legal care of the child in accordance with the approved plan for shared
parenting.” Id. at ¶ 24. “If a shared-parenting order is issued and the order is silent
regarding the residential parent and legal custodian status, and the context does not
clearly require otherwise, then each parent is a residential parent and legal custodian of
the child[.]” Id. at ¶ 25, citing R.C. 3109.04(K)(6). “In summary, R.C. 3109.04(E)(1)(a)
expressly provides for the modification of parental rights and responsibilities in a decree.
An allocation of parental rights and responsibilities is a designation of the residential
parent and legal custodian. Therefore, R.C. 3109.04(E)(1)(a) controls when a court
modifies an order designating the residential parent and legal custodian.” Id. at ¶ 26.
“While the designation of residential parent and legal custodian can be modified under
R.C. 3109.04(E)(1)(a), that designation cannot be modified under R.C. 3109.04(E)(2)(b),
which allows only for the modification of the terms of a shared-parenting plan.” Id. at ¶ 27.
{¶ 16} The Fisher court elaborated on the differences between R.C.
3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b) as follows:
* * * Within the custody statute, a “plan” is statutorily different from a
“decree” or an “order.” A shared-parenting order is issued by a court when
it allocates the parental rights and responsibilities for a child. R.C.
3109.04(A)(2). Similarly, a shared-parenting decree grants the parents
shared parenting of a child. R.C. 3109.04(D)(1)(d). An order or decree is
used by a court to grant parental rights and responsibilities to a parent or
parents and to designate the parent or parents as residential parent and
legal custodian.
However, a plan includes provisions relevant to the care of a child,
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such as the child’s living arrangements, medical care, and school
placement. R.C. 3109.04(G). A plan details the implementation of the
court’s shared-parenting order. For example, a shared-parenting plan must
list the holidays on which each parent is responsible for the child and include
the amount a parent owes for child support.
A plan is not used by a court to designate the residential parent or
legal custodian; that designation is made by the court in an order or decree.
Therefore, the designation of residential parent or legal custodian cannot
be a term of shared-parenting plan, and thus cannot be modified pursuant
to R.C. 3109.04(E)(2)(b).
Finally, we note that R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b)
contain significantly different standards for modifications. “It is a well-settled
rule of statutory interpretation that statutory provisions be construed
together and the Revised Code be read as an interrelated body of law.”
State v. Moaning (1996), 76 Ohio St. 3d 126, 128, 666 N.E.2d 1115, quoting
Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St. 2d 126,
132, 10 O.O.3d 312, 383 N.E.2d 124. To read both sections, with different
standards, to apply to a court’s analysis modifying the decree modifying a
child’s residential parent and legal custodian would create inconsistency in
the statute. Two different standards cannot be applied to the same situation.
Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a),
may only be made “based on facts that have arisen since the prior decree
or that were unknown to the court at the time of the prior decree, that a
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change has occurred in the circumstances of the child, the child’s residential
parent, or either of the parents subject to shared parenting decree, and that
the modification is necessary to serve the best interest of the child.” This is
a high standard, as a “change” must have occurred in the life of the child or
the parent before the court will consider whether the current designation of
residential parent and legal custodian should be altered. Conversely, R.C.
3109.04(E)(2)(b) requires only that the modification of the shared-parenting
plan be in the best interest of the child.
The requirement that a parent seeking modification of a prior decree
allocating parental rights and responsibilities show a change of
circumstances is purposeful: “ ‘The clear intent of [R.C. 3109.04(E)(1)(a)] is
to spare children from a constant tug of war between their parents who
would file a motion for change of custody each time the parent out of
custody thought he or she could provide the child a “better” environment.
The statute is an attempt to provide some stability to the custodial status of
the children, even though the parent out of custody may be able to prove
that he or she can provide a better environment.’ ” Davis v. Flickinger
(1997), 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159, quoting Wyss v. Wyss
(1982), 3 Ohio App. 3d 412, 416, 3 OBR 479, 445 N.E.2d 1153.
Further, “[t]he General Assembly is the policy-making body in our
state and has restricted the exercise of judicial authority with respect to
modification of a prior decree allocating parental rights and responsibilities.
This legislation comports with our rationale regarding stability in the lives of
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children as a desirable component of their emotional and physical
development.” In re Brayden James, 113 Ohio St. 3d 420, 2007-Ohio-2335,
866 N.E.2d 467, at ¶ 28. We note that another statute that addresses orders
granting legal custody of a child sets forth the same standard for a
modification. R.C. 2151.42(B) also requires a court to find that a “change
has occurred in the circumstances of the child or the person who was
granted legal custody” and that modification is in the best interest of the
child before modifying an order granting legal custody. See In re Brayden
James at ¶ 26.
The standard in R.C. 3109.04(E)(2)(b) for modification of a shared-
parenting plan is lower because the factors contained in a shared-parenting
plan are not as critical to the life of a child as the designation of the child’s
residential parent and legal custodian. The individual or individuals
designated the residential parent and legal custodian of a child will have far
greater influence over the child’s life than decisions as to which school the
child will attend or the physical location of the child during holidays. Further,
factors such as the physical location of a child during a particular weekend
or holiday or provisions of a child’s medical care are more likely to require
change over time than the status of the child’s residential parent and legal
custodian.
Fisher, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 29-36.
{¶ 17} The foregoing analysis makes clear that whether the trial court was required
to find a “change in circumstances,” as Eric suggests, depended on (1) whether it modified
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a prior decree allocating parental rights and responsibilities that designated a residential
parent and legal custodian or (2) whether it only modified the parties’ prior shared-
parenting plan. If it did the latter, then R.C. 3109.04(E)(2)(b) applied and no change-in-
circumstances finding was required.
{¶ 18} Although we agree with Eric that the trial court largely re-wrote the existing
shared-parenting plan on the grounds that it was unworkable and that the parties had
experienced a near-total breakdown in communication, the trial court did not modify or re-
designate anyone as the residential parent and legal custodian. The parties’ original
shared-parenting plan was a 27-page document. The trial court described it as “over-
drafted” and found that Eric had been “heavily involved” in its creation. (Doc. #124 at 2.)
This original plan identified both parties as the “residential and custodial parent,”
distinguishing between them only as to whether they were “on duty” or “off duty” based
on with whom the children were residing. (See Shared-parenting plan, attached to Doc.
#59.) In its entry incorporating a revised shared-parenting plan, the trial court expressly
declined to designate Eric or Elizabeth as the children’s sole residential parent and legal
custodian. The trial court explained that it was “leery about designating one parent the
residential parent and legal custodian because neither parent has demonstrated an ability
to be fair and objective in decision-making.” (Doc. #124 at 3.) As a result, the trial court
found a continuation of shared parenting to be in the children’s best interest. A significant
portion of the changes it made to the shared-parenting plan pertained to the parties’
parenting-time schedule, which constituted a change to the terms of the prior plan, not a
modification of the residential parent and legal custodian.
{¶ 19} Even assuming, contrary to our conclusion herein, that the trial court’s
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judgment did constitute a modification of the existing custodial status of the children, we
would find the resulting change-in-circumstances requirement to be satisfied. Although
the trial court did not expressly state that it had found a change in the circumstances of
one or both parties, it did find that Eric and Elizabeth had experienced a “severe
breakdown in communication” that had “significantly impacted their ability to parent
effectively.” (Id. at 2.) Case law establishes that a “breakdown in communication” between
the parties may constitute a “change in circumstances” that justifies modifying a prior
decree designating the residential parent and legal custodian. See, e.g., Wolford v. Willis,
4th Dist. Gallia No. 17CA9, 2018-Ohio-3937, ¶ 26; Williamson v. Williamson, 2017-Ohio-
1082, 87 N.E.3d 676, ¶ 30 (7th Dist.); Reese v. Siwierka, 11th Dist. Portage No. 2012-P-
0053, 2013-Ohio-2830, ¶ 31; Walsh-Stewart v. Stewart, 9th Dist. Wayne No. 12CA0031,
2012-Ohio-5927, ¶ 16.
{¶ 20} Here the record reveals that the animosity and lack of communication
between the parties was so severe that it undoubtedly constituted a change in
circumstances since the adoption of the original shared-parenting plan. At one point
during the hearing on the parties’ motions, psychologist Barbara Bergman opined that the
parties were incapable of having a “respectful discussion” about any subject. (Sept. 14,
2018 Tr. at 256.) She added that the parties “don’t agree with each other on anything.”
(Id. at 266.) The trial court also observed that the parties were incapable of working out
issues between themselves. (Id. at 311.) We harbor no doubt that the trial court’s finding
about a “severe breakdown in communication” between the parties constituted a finding
of a “change in circumstances,” assuming such a finding was required.2
2 In addition to making a best-interest determination and finding a change in
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{¶ 21} The only remaining issue raised by Eric’s first assignment of error is
whether the trial court correctly found that modification of the shared-parenting plan—
rather than termination of shared parenting and an award of legal custody to him—was in
the children’s best interest. Eric references the factors listed in R.C. 3109.04(F)(2) and
asserts that the trial court erroneously failed to cite or consider any of them. He contends
those factors demonstrate that continued shared parenting is not in the children’s best
interest.
{¶ 22} Section 3109.04(F)(2) provides:
In determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not
limited to, the factors enumerated in division (F)(1) of this section, the
factors enumerated in section 3119.23 of the Revised Code, and all of the
following factors:
(a) The ability of the parents to cooperate and make decisions jointly,
circumstances, a trial court modifying the designation of the residential parent and legal
custodian must make one more finding under R.C. 3109.04(E)(1)(a). As relevant here,
the statute provides that the trial court “shall retain the residential parent designated by
* * * the prior shared parenting decree unless” it finds that “[t]he harm likely to be caused
by a change of environment is outweighed by the advantages of the change of
environment to the child.” R.C. 3109.04(E)(1)(a)(iii). This language suggests that the trial
court is relocating the child from one home to another, which did not occur here and which
further supports our determination above that the trial court did not modify the existing
shared custodial status of the children. But even if this requirement did apply, we safely
can infer from the trial court’s decision that it believed the shared-parenting plan changes
it made were more advantageous than harmful to the children. Otherwise, it certainly
would not have made the changes. In appropriate cases, this court and others have
recognized that a trial court implicitly made a necessary finding under R.C. 3109.04. See,
e.g., Ashbridge v. Berry, 2d Dist. Greene No. 2009-CA-83, 2010-Ohio-2914, ¶ 6; Lucas
v. Lucas, 3d Dist. Paulding No. 11-93-6, 1994 WL 95209, *2 (Mar. 25, 1994); In re Wright,
5th Dist. Stark No. 2002CA00184, 2003-Ohio-546, ¶ 27.
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with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
{¶ 23} On appeal, Eric addresses factors (a), (b), and (e) above. With regard to
factor (a), he cites psychologist Bromberg’s opinion that shared parenting is not a viable
option because the parties cannot get along. He also cites psychologist Bergman’s report,
which indicated that shared parenting was not viable, and the guardian ad litem’s report,
which recommended that he be designated the legal custodian. In addition, he points out
the trial court’s observation in its judgment entry that the parties have not been able to
communicate or reach agreement on parenting decisions. In light of this evidence, Eric
questions how the trial court could have found continued shared parenting viable.
{¶ 24} With regard to factor (b), Eric contends he always has sought to encourage
love, affection, and contact between Elizabeth and the children. As evidence, he cites his
initial willingness to enter into a shared-parenting plan. He also cites his testimony about
trying to make accommodations for Elizabeth, showing respect for her around the
children, and allowing her to have slightly more parenting days than him. Eric cites his
new wife Kelly’s testimony about him acting respectfully toward Elizabeth around the
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children and trying to accommodate Elizabeth’s wishes. Conversely, he cites testimony
about Elizabeth once placing the children with a babysitter instead of letting him see them
and speaking disrespectfully about him in front of the children.
{¶ 25} With regard to factor (e), Eric notes the guardian ad litem’s recommendation
that shared parenting be terminated and that he be designated the residential parent and
legal custodian.
{¶ 26} In addition to addressing the R.C. 3109.04(F)(2) factors, Eric claims the trial
court erred in relying on a lack of cooperation as a factor supporting shared parenting.
Specifically, he cites the trial court’s statement that it was “leery about designating one
parent the residential parent and legal custodian because neither parent has
demonstrated an ability to be fair and objective in decision-making.” (Doc. #124 at 3.)
Based on the premise that the trial court erred in not terminating shared parenting, Eric
proceeds to argue that the custody factors in R.C. 3109.04(F)(1) favor designating him
the residential parent and legal custodian.
{¶ 27} We review the trial court’s modification of the parties’ shared-parenting plan
under R.C. 3109.04(E)(2)(b) for an abuse of discretion. Thompson v. Thompson, 5th Dist.
Stark No. 2012CA00176, 2013-Ohio-2587, ¶ 19, citing Picciano v. Lowers, 4th Dist.
Washington No. 08CA38, 2009-Ohio-3780, ¶ 25. The phrase “abuse of discretion” implies
an unreasonable, arbitrary, or unconscionable attitude. Chelman v. Chelman, 2d Dist.
Greene No. 2007 CA 79, 2008-Ohio-4634, ¶ 17. An unreasonable decision is one that is
not supported by a sound reasoning process. Id.
{¶ 28} Although R.C. 3109.04 identifies various factors for a trial court to “consider”
when exercising its discretion and making a best-interest determination, the trial court
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was not obligated to recite or discuss any factors individually. See, e.g., Hutchinson v.
Hutchinson, 2d Dist. Montgomery No. 26221, 2014-Ohio-4604, ¶ 32. The critical issue is
whether the record supports the trial court’s conclusions and whether it explained its best-
interest determination sufficiently. Id. at ¶ 33-36 (finding that the record supported the trial
court’s explanation for its best-interest determination despite its failure to discuss each
best-interest factor by name); Doane v. Doane, 5th Dist. Guernsey No. 00CA21, 2001
WL 474267, *6 (May 2, 2001) (noting that R.C. 3109.04(F)(2) “does not require the court
to make independent findings on each of the * * * factors” and that “a silent record raises
the presumption that a trial court considered the factors”).
{¶ 29} Here the trial court found that continuing shared parenting was in the best
interest of the parties’ children. In reaching this conclusion, it noted that it had considered,
among other things, the recommendation in the guardian ad litem’s report, which was a
best-interest factor under R.C. 3109.04(F)(2)(e). (Doc.#124 at 11.) The trial court also
heard two days of testimony largely addressing the parties’ ability to cooperate and make
joint decisions and their ability to encourage love, affection, and contact between the
children and the other parent, which are best-interest factors under R.C. 3109.04(F)(2)(a)
and (b). In short, this testimony established that the parties had engaged in mutual power
struggles, bickering, and petty disputes that had led to numerous contempt allegations
against one another.
{¶ 30} Although uncooperativeness and incompatibility typically would militate
against shared parenting, we cannot say the trial court failed to engage in a sound
reasoning process when it continued shared parenting. The trial court found both parties
at fault for a “breakdown in communication” that “significantly impacted their ability to
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parent effectively.” (Doc. #124 at 2.) After hearing their testimony, considering their
demeanor, and assessing their credibility, the trial court did not trust either party enough
to be designated the children’s sole residential parent and legal custodian. It noted that
neither party had shown an ability to be fair or objective. (Id. at 3.) Therefore, it feared
placing too much power and control in either party’s hands by granting either parent legal
custody. That being so, the only other option was to continue shared parenting under
modified terms that the trial court drafted and included in its judgment entry. The trial court
reasonably could have believed that the simplified terms in its shared-parenting plan
would lead to less conflict and might prevent the plan from being “used as a weapon
rather than a guide,” as it found the prior plan had been. (Id. at 2.) Based on the record
before us, we see no abuse of discretion in the trial court’s decision to continue shared
parenting under the terms of a modified shared-parenting plan. In light of that
determination, it necessarily follows that the trial court did not err in denying Eric’s motion
to be designated the children’s residential parent and legal custodian. The first
assignment of error is overruled.
{¶ 31} In his second assignment of error, Eric contends the trial court erred in
ordering alternating-week parenting time contrary to the unanimous opinion of all
witnesses and the trial court’s own assessment that such an order was not in the
children’s best interest.
{¶ 32} Eric notes that the parties’ original shared-parenting plan provided for the
parenting-time schedule to adjust monthly based on his work schedule as a commercial
airline pilot. He contends the monthly schedule was never identified as a source of conflict
during the hearing. He argues that the problem was Elizabeth wanting to change it after
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it had been set. He also points out that the guardian ad litem recommended that he
continue to provide his schedule one month in advance so parenting time could be set.
In addition, psychologist Bromberg described the existing parenting time schedule as
“decent” and did not know whether it should be changed. For her part, psychologist
Bergman recommended continuing a schedule that maintained the children’s contact with
both parents. Bergman noted that parenting time could not be equal if Eric were
unavailable due to work. Eric also cites Elizabeth’s testimony that she was willing to
accommodate his flying schedule and to have him make an equal parenting-time
schedule. (Sept. 14, 2018 Tr. at 143.) Finally, Eric points to a portion of the following
remarks by the trial court during the evidentiary hearing:
Judge Hurley: There’s no fault here. Let’s move on. It’s, it’s blatantly
obvious these parties can’t agree on what time that clock says it is right up
there (Indicating), so I’m, I’ve, that point has been made yesterday at 10:00
an hour after we started.
So I—we’re going to quit here in a minute. I think I really want the
parties to understand where we’re going here is you’re going to probably
get a specific schedule of time for the children without any ability of either
of you to modify it involving the other one because you can’t talk.
That’s the worst situation ever for your children, but you aren’t giving
me any choice, neither one of you, so that’s where you’re putting us by
sitting there doing what you’ve been doing for the last day and a half.
And if that’s what you want to do with your children, that’s where
we’re going. I don’t have any choice. Because—and you’re going to have
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what we call curbside exchanges. You’re not going to meet face-to-face.
That’s where you’re going.
And it’s all because the two of you can’t get past whatever anger was
involved in your original divorce, and you’re leaving me no choice * * *.
(Emphasis added.) (Sept. 14, 2018 Tr. at 222-223.)
{¶ 33} Eric contends the italicized portion of the foregoing remarks demonstrates
that even the trial court recognized that the parenting time it ordered in the modified
shared-parenting plan was not in the children’s best interest.
{¶ 34} Upon review, we see no abuse of discretion in the trial court’s decision to
order fixed, alternating-week parenting time. Although Elizabeth was willing to try to
accommodate Eric’s schedule, she also testified that she in fact wanted “[w]eek to week”
parenting time. (Sept. 14, 2018 Tr. at 143.) According to Elizabeth, one problem with the
prior schedule was that Eric set it each month to suit him and often made little effort to
accommodate her requests for changes when special events occurred. Allowing Eric to
create a new parenting-time schedule each month made it difficult for her to plan ahead
for events involving the children, and his unwillingness or inability to make modifications
to the schedule was a source of conflict. (See, e.g., id. at 176-177, 207-208.) The trial
court acted reasonably by trying to minimize this conflict through a more traditional,
alternating week parenting-time schedule. We note too that Eric does have some control
over his flight schedule, and his ability to control his schedule will increase as his seniority
rises.
{¶ 35} Finally, we disagree with Eric about the trial court’s alleged acknowledment
that its own parenting-time schedule was not in the children’s best interest. In the passage
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quoted above, the trial court explained that the parties’ inability to communicate
compelled it to implement a more traditional, fixed schedule to minimize conflict. The
parties’ hostility toward one another, which limited the trial court’s options, appears to be
what the trial court characterized as “the worst situation” for the children. We do not
believe the trial court meant to suggest that its own alternating-week schedule was not in
the children’s best interest. To the contrary, the trial court reasonably concluded that the
schedule it created was in the best interest of the children insofar as it reduced conflicts
between Eric and Elizabeth. In its judgment entry, the trial court explained:
* * * And though the Court applauds the parties’ attempts to have
equal parenting time tailored to Father’s unusual work schedule, the current
parenting time schedule has led to too much conflict, which is not in the
children’s best interest. The Court finds this to be due, in large part, to the
fact that Father has control over making the parenting time schedule on a
monthly basis and has demonstrated an unwillingness to accommodate
even the most reasonable of Mother’s requests for changes or additional
time.
(Doc. #124 at 2-3.)
{¶ 36} Although Eric disputes being unwilling to cooperate with Elizabeth and cites
some examples of accommodation, the trial court did not abuse its discretion in reaching
the conclusion that it did. The second assignment of error is overruled.
{¶ 37} In his third assignment of error, Eric contends the trial court “erred by
dismissing the evaluations of both expert witnesses and the GAL without evaluating
them.”
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{¶ 38} Eric first contests the trial court’s finding that “the opinions rendered by Drs.
Bergman and Bromberg essentially cancelled each other out as they were both equally
competent but offered competing recommendations.” (Id. at 11.) He argues that the two
experts’ opinions were “entirely harmonious” and that there was no “substantial conflict.”
{¶ 39} Eric also challenges the trial court’s discounting of opinions set forth in the
guardian ad litem’s report. Specifically, he complains about the trial court’s observation
that the guardian ad litem “was not present [at the hearing] to observe the testimony and
demeanor of the parties throughout the proceedings, both of which significantly influenced
the decision of the Court.” (Id.) Eric suggests that the trial court exaggerated the
significance of the parties’ demeanor so it could do whatever it wanted while insulating its
ruling from reversal on appeal. Eric also claims he was unaware that the guardian ad
litem’s absence from trial would create a problem or negate the weight and credibility of
the guardian’s written report and recommendations.
{¶ 40} Upon review, we find Eric’s arguments to be unpersuasive. The trial court’s
short-hand reference, at the end of its shared-parenting analysis, to the experts’ opinions
cancelling each other out fails to persuade us that it improperly dismissed their
evaluations. The essence of Bromberg’s opinion was that Eric should be designated the
residential parent and legal custodian. He based this custody determination largely on (1)
his belief that Eric would be “firmer” with the children and less subject to manipulation and
(2) certain “mood” and “anger” issues that he perceived when evaluating Elizabeth’s
Rorschach test. (Sept. 13, 2018 Tr. at 50-52.) Bromberg also opined that the monthly
parenting-time schedule should remain essentially the same. (Id. at 45-46, 50-53.) For
her part, Bergman testified that neither party had “any difficulties handling the children[.]”
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(Sept. 14, 2018 Tr. at 242.) Bergman did not recommend either parent to be named the
sole residential parent and legal custodian. She believed, however, that Elizabeth likely
would be “marginalized” if Eric were designated the residential parent and legal
custodian.3 (Id. at 244.) Although Bergman’s views on the key issue of legal custody may
not directly “conflict” with Bromberg’s, they fairly may be characterized as “competing
recommendations,” which is what the trial court stated. Her concerns about Eric’s
potentially marginalizing Elizabeth and her refusal to recommend him as the residential
parent and legal custodian were not “entirely harmonious” with Bromberg’s opinions.
{¶ 41} Finally, we see no error in the trial court’s treatment and consideration of
the guardian ad litem’s report. In its ruling, the trial court addressed the report as follows:
* * * The Court also reviewed the report issued by the Guardian ad
Litem and carefully considered his recommendations given his expertise
and familiarity with the parties and the case. However, because the
guardian ad litem was not called as a witness, he was excused from the
courtroom at the beginning of day 1 of trial and was not present to observe
the testimony and demeanor of the parties throughout the proceedings, both
of which significantly influenced the decision of the Court.
(Doc. #124 at 11.)
{¶ 42} Contrary to Eric’s argument, we have no basis for concluding that the trial
court exaggerated the significance of the parties’ demeanor when assessing their
3 Parenthetically, Bergman also recognized the possibility that Elizabeth might try to
“marginalize” Eric if she were the sole residential parent and legal custodian. (Sept. 14,
2018 Tr. at 244.) For present purposes, however, that possibility has no bearing on
whether Bromberg and Bergman offered “competing recommendations” as to Eric’s
obtaining legal custody.
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credibility to insulate itself from reversal. Unfortunately, we lack the ability to see and hear
witnesses ourselves. As the factfinder who observes the witnesses, the trial court is
particularly well suited to assess credibility based in part on their demeanor, and we
necessarily give substantial deference to its determinations. In re J.G., 2d Dist.
Montgomery No. 20074, 2004-Ohio-774, ¶ 67.
{¶ 43} As for the guardian ad litem’s physical absence from the hearing, the trial
court bears no responsibility for it. At the outset of the hearing, the trial court allowed
guardian ad litem David Mesaros to depart after the following exchange in the presence
of both parties’ counsel:
MR. MESAROS: I understand from Counsel that I am not going to
be required to testify by either side. I submitted a supplemental report to the
Court in April.
In June, Mother sent me an additional list of people she wanted me
to speak with. I did not, I have not spoken to anyone or worked with anyone
since the report it April.
JUDGE HURLEY: Okay.
MR. MESAROS: So with that, unless Counsel have changed their
mind, I was going to depart, because I don’t believe there’s anything I need
to contribute at the moment.
JUDGE HURLEY: So you’re, you would choose not to stay and
participate in any of the examination of any of the witnesses?
MR. MESAROS: Correct. I have read the psychological—
JUDGE HURLEY: That’s your option—
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MR. MESAROS: I have read the psychological reports by both sides,
and I don’t have anything else I wish to pursue.
JUDGE HURLEY: Is Mr. Mesaros correct, that neither one of you
intend on calling him, ask him questions about his report?
MR. WHIPPS: That’s correct, your Honor. I believe—
JUDGE HURLEY: All right.
MR. WHIPPS: —both of us have told him even this morning that we
don’t intend to do that.
JUDGE HURLEY: All right.
(Sept. 13, 2018 Tr. at 15-17.)
{¶ 44} The foregoing exchange reflects that the guardian ad litem asked to leave
the hearing, neither party’s counsel objected, and the trial court granted the request. In
hindsight, it may have been better from Eric’s perspective for the guardian ad litem to
have remained. The trial court did nothing erroneous, however, with respect to the
guardian ad litem’s absence. The third assignment of error is overruled.
{¶ 45} Based on the reasoning set forth above, we affirm the judgment of the
Greene County Common Pleas Court, Domestic Relations Division.
.............
WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Michael A. Hochwalt
Edward F. Whipps
John C. Ruiz-Bueno, III
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David P. Mesaros, GAL
Hon. Steven L. Hurley