Nungester v. Nungester
2017 Ohio 6935
| Ohio Ct. App. | 2017Background
- Robert and Kate Nungester divorced in 2013 and entered an agreed parenting plan naming Kate residential parent and granting Robert progressively expanding visitation tied to the children’s counselor recommendations and suitable housing.
- In March 2015 Robert filed motions to modify the parenting plan: (1) to be named residential parent and (2) to modify parenting time; at the hearing he sought only expanded visitation to match Local Rule 32(A), not a custody change.
- The parties resolved several ancillary disputes in March 2016 and agreed to modify supervised visits to public-place visits supervised by Kate and to allow counselor-driven contact and possible unilateral mutual progression to unsupervised time prior to the next review.
- At an October 2016 hearing the trial court denied Robert’s motions, but applied the custody-modification statute (R.C. 3109.04) rather than the visitation-modification statute (R.C. 3109.051).
- Robert appealed, arguing (1) the trial court erroneously required a change of circumstances (a custody standard) to modify visitation, and (2) the court’s best-interest determination was not supported by the evidence.
Issues
| Issue | Plaintiff's Argument (Kate) | Defendant's Argument (Robert) | Held |
|---|---|---|---|
| Whether a change of circumstances is required to modify parenting time/visitation | Trial court treated matter as custody; implicitly applied change-of-circumstances standard | No change-of-circumstances needed; R.C. 3109.051 governs visitation modifications | Court erred: change-of-circumstances standard was inapplicable; R.C. 3109.051 controls |
| Whether the trial court properly determined visitation was not in children’s best interest | Trial court found visitation increase not appropriate under the applied custody factors | Robert argued the trial court failed to apply the R.C. 3109.051 factors and thus did not properly assess best interests | Reversed and remanded because trial court did not consider the mandatory R.C. 3109.051 factors; best-interest determination cannot stand without that analysis |
Key Cases Cited
- Braatz v. Braatz, 85 Ohio St.3d 40 (Ohio 1999) (modification of visitation is governed by R.C. 3109.051, not the custody/change-of-circumstances statute)
- In re Gibson, 61 Ohio St.3d 168 (Ohio 1991) (distinguishing visitation from custody: visitation grants access but not ultimate legal control)
- Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77 (Ohio 1984) (errors of law are legitimate grounds for reversal; credibility disagreements are not)