2022 Ohio 2933
Ohio Ct. App.2022Background
- E.M., born June 2014, is the child of Bryan Massong (plaintiff-appellant) and Ashlee Tyner (defendant-appellee); parents’ relationship involved mutual allegations of domestic violence and long‑running hostility.
- An agreed 2017 parenting plan awarded Tyner legal custody and Massong regular visitation (Tuesdays and every other weekend); both parties later violated aspects of the plan.
- Massong filed for sole custody or increased parenting time in 2019; interim changes (including suspension of some overnight visits and police‑station exchanges) were ordered after trial evidence of problems with exchanges and tardiness.
- In 2020 Tyner obtained an ex parte emergency order to suspend Massong’s visitation or require supervision, alleging immediate risk to the child; Massong’s visitation was suspended during the pendency of that emergency motion.
- In September 2021 the juvenile court awarded legal custody to Tyner and limited Massong’s parenting time to six hours every other week, with the prospect of increased time if he completed counseling/anger‑management; Massong appealed raising five assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a change of circumstances under R.C. 3109.04(E)(1)(a) warranting modification | Relocation, E.M.’s aging, and introduction of stepfather together constitute a change | Events do not constitute a new, substantiated, continuing, materially adverse change; relocation was within same county and stepfather relationship predated decree | No abuse of discretion; court correctly found no change of circumstances |
| Whether the court erred by not evaluating the child’s best interests | Court failed to assess best‑interest factors after a change determination | No change was found, so best‑interest inquiry was not triggered | Overruled — because no change found, court properly did not reach best‑interest analysis |
| Whether magistrate’s reliance on evidence from the emergency hearing required reversal or remedial relief | Magistrate improperly relied on emergency‑hearing evidence; requests remand and make‑up visitation | Trial court acknowledged error but found reliance harmless because full‑trial record independently supported decision; plaintiff declined offer to reinstate visitation earlier | Harmless error; no remand and no make‑up visitation ordered |
| Whether limiting Massong to six hours every other week is against the manifest weight / not in child’s best interest | The limitation is unsupported by the evidence and not in E.M.’s best interest | Court applied R.C. 3109.051(D) factors, citing safety concerns, violent texts, prior injuries, and plaintiff’s anger issues | No abuse of discretion; limitation supported by record and statutory factors |
| Whether the court abused discretion by refusing to order mandatory coparenting counseling | Both parents contributed to conflict; court should mandate counseling | Court found the conflict arose primarily from Massong’s conduct; offered conditional counseling/anger‑management to earn increased time | No abuse of discretion; court permissibly declined to order mandatory coparenting counseling |
Key Cases Cited
- Bruns v. Green, 168 N.E.3d 396 (Ohio 2020) (explains R.C. 3109.04(E) procedures for modifying parental‑rights decrees)
- Davis v. Flickinger, 674 N.E.2d 1159 (Ohio 1997) (trial judge has broad discretion in custody and change‑of‑circumstances determinations)
- Johnson v. Abdullah, 187 N.E.3d 463 (Ohio 2021) (standard for reviewing discretionary family‑court decisions)
- State v. DeHass, 227 N.E.2d 212 (Ohio 1967) (trier of fact best positioned to judge witness credibility)