Ackley v. HaneyAckley v. Haney
Mary King Law, and Mary E. King, for appellee.
PIPER, P.J.
{1} Appellant, Adam Ackley (“Father“), appeals a decision of the Fayette County Court of Common Pleas, Juvenile Division, terminating his shared parenting plan and designating appellee, Kodi Haney (“Mother“), as residential parent and legal custodian of their son.
{2} Father and Mother were never married, but had a child together, C.A., born on September 19, 2011. In 2012, the juvenile court adopted a shared parenting plan. The plan directed the parenting times and other parental-related issues. The parties worked
{3} Prior to the COVID-19 pandemic, Mother commuted regularly for her job and therefore dropped C.A. at Father‘s home for transportation to and from school. This arrangement worked, in part, because Father derives his income from a military service-related disability and considers himself a stay-at-home dad. Although disabled, Father testified that none of his disabilities have any impact on his ability to effectively parent the child. Due to the pandemic causing widespread closures of schools and the fact that Mother was then permitted to work from home, Mother testified that she began handling daily schooling responsibilities.
{4} Prior to the start of the new school term, Father approached Mother and asked about homeschooling C.A. if the school mandated mask-wearing.1 Although Father insists Mother was amenable to homeschooling, Mother claims she adopted a wait and see approach. After weighing the pros and cons, Mother decided that homeschooling was not appropriate for C.A. Mother believed there were significant social and developmental benefits of attending in-person schooling.
{5} The parties had further conflict regarding the shared parenting plan due to a disagreement over C.A.‘s participation in youth football. Father initially enrolled C.A. in the program, in which he served as a coach, but later decided that C.A. would no longer participate.2 There was significant testimony concerning Father‘s tenure as football coach particularly since he was terminated from that role. Father introduced testimony from a member of the board of the football program, Ronnie Grim. Grim testified that some parents
{6} Mother testified that youth football was one of the issues that started to interfere with the shared parenting plan. Among other things, Mother testified that she wanted to allow C.A. to continue to participate. However, when she took C.A. to a practice, she learned that Father produced court paperwork to the football program indicating his authority to remove C.A. from the team. There was testimony that Father told a board member he had custody of C.A. Mother then had to produce the shared parenting plan before C.A. was allowed to practice again.
{7} In August 2020, Father remarried. Father alleges that his marriage impacted the operation of the shared parenting plan. Father complains that Mother no longer dropped C.A. at his home for transportation to and from school. He also alleges that Mother unilaterally decided to permit C.A. to attend in-person schooling notwithstanding the mask mandate. Mother disputes Father‘s characterization, instead claiming that her ability to work from home allowed her to handle school transportation issues without Father‘s assistance. She insisted that Father was informed about the decision to return to in-person school and that returning to in-person instruction was in C.A.‘s best interest.
{8} On October 12, 2020, Father filed a motion for change of parental rights and responsibilities and requested a modification of the parenting schedule and residential parent designation.3 On February 8, 2021, Mother filed an alternative motion requesting
{9} Following the hearing, the juvenile court terminated the shared parenting agreement, designated Mother as the residential parent, and awarded custody of the child to Mother. The juvenile court did not modify the parenting schedule but did issue orders concerning child support. Father now appeals the juvenile court‘s decision, raising three assignments of error for review.
{10} Assignment of Error No. 1:
{11} THE TRIAL COURT ERRED IN TERMINATING THE SHARED PARENTING PLAN.
{12} In his first assignment of error, Father argues the juvenile court abused its discretion in terminating the shared parenting plan in naming Mother as the residential parent and legal custodian of C.A.
{13} It is undisputed a juvenile court has discretion in custody matters, and its decision in such matters will not be reversed absent an abuse of that discretion. In re A.D., 12th Dist. Fayette No. CA2012-07-023, 2013-Ohio-1308, ¶ 15. An abuse of discretion is more than an error of law or judgment; it implies that the juvenile court acted unreasonably, arbitrarily, or unconscionably. Id.
{14} According to
{15} To determine what is in the best interest of a child,
{16} “When determining whether shared parenting is in a child‘s best interest, the trial court must consider the additional factors set forth in
{18} The evidence established that C.A. is loved by both parents and that both parents live in the same community. In fact, they are practically neighbors, living only about 500 feet from one another. However, the juvenile court expressed concern about Father‘s behavior, and that he has put C.A. “in the middle of [Father‘s] disputes with Mother.” The juvenile court stated that this could create mental health issues for C.A. and expressed concerns with Father‘s own mental health. The juvenile court also found that Mother was more likely to facilitate court approved parenting time rights based upon the evidence presented in the hearing.
{19} On appeal, Father argues that the juvenile court‘s decision was predicated on “relatively minor factual findings which tipped the best interest scales” in favor of Mother. He acknowledged the testimony concerning his irritability and temper, but suggests those episodes were exacerbated by his failed experiment in coaching football and his frustration with mandatory masks in school. He further claims the juvenile court “punish[ed]” him with its decision and that the juvenile court‘s decision was “draconian.” Noticeably Father does not address how his behavior impacted C.A.
{21} Given the evidence presented, we find that the juvenile court did not abuse its discretion in terminating the shared parenting plan and designating Mother the residential parent and legal custodian of the parties’ minor child. The juvenile court‘s decision is supported by competent, credible evidence. Accordingly, Father‘s first assignment of error is overruled.
{22} Assignment of Error No. 2:
{23} THE COURT ERRED IN PERMITTING THE GUARDIAN AD LITEM‘S TESTIMONY AND REPORT IN (sic) AS EVIDENCE WHEN NEITHER COMPLIED WITH SUP. R. 48(D).
{24} In his second assignment of error, Father argues the juvenile court erred by permitting the GAL to testify and by accepting the GAL‘s written report, complaining that the GAL did not comply with the Rules of Superintendence.
(1) A guardian ad litem shall prepare a written final report, including recommendations to the court, within the times set forth in this division. The report shall affirmatively state that responsibilities have been met and shall detail the activities performed, hearings attended, persons interviewed, documents reviewed, experts consulted, and all other relevant information considered by the guardian ad litem in reaching the recommendations and in accomplishing the duties required by statute, by court rule, and in the order of appointment from the court.
(2) All reports shall include the following warning: “The guardian ad litem report shall be provided to the court, unrepresented parties, and legal counsel. Any other disclosure of the report must be approved in advance by the court. Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt, which include fine and/or incarceration.”
(3) Oral and written reports shall address relevant issues, but shall not be considered determinative.
(4) A guardian ad litem shall be available to testify at any relevant hearing and may orally supplement the report at the conclusion of the hearing.
(5) A guardian ad litem may provide an interim written or oral report at any time.
Sup.R. 48.06(A).
{26} Rules of Superintendence do not have the same force as statute or case law, but are rather purely internal housekeeping rules which do not create substantive rights in
{27} Father argues that the GAL failed to satisfy her duties and responsibilities as the GAL because she did not interview Father‘s current spouse, Father‘s other child, Mother‘s fiancé, or Mother‘s other child. Father also argues that the GAL‘s report was deficient because it does not indicate whether any school or medical records were reviewed. He also takes issue with the brevity of the report and notes that the GAL included interviews with two individuals whose names did not appear in the report.5
{28} Following review of the record, we find the juvenile court did not err by permitting the GAL to testify or by accepting her written report. As noted above, noncompliance with the Rules of Superintendence is generally not grounds for reversal. In this case, the report stated that the GAL met with Father at her office on two separate occasions and conducted a home visit while C.A. was in Father‘s care. The GAL noted that during the home visit, Father‘s other son and his current wife were present. The GAL report then notes that she also met with Mother in her home while C.A. was in her care and that Mother‘s other daughter was present as well. After briefly summarizing other work she had done on the case, the GAL recommended that Mother be named as the residential parent.
{29} Although we agree that the GAL report is brief, we find there was no reason to exclude her report or to prevent her from testifying in this matter. The record reflects that the GAL did conduct an investigation into the best interests of C.A. The GAL was also
{30} Finally, the record reflects that the juvenile court had ample justification for awarding Mother custody in this case. Although the parties had initially worked well in a shared parting arrangement, the evidence showed that it was no longer possible due to substantial disagreements between the parties. The GAL was but one witness in this case where both Mother and Father were able to testify and present their reasons why they should be awarded custody. The juvenile court was not required to reject the GAL‘s testimony or rule her report inadmissible. Instead, the record reflects the juvenile court considered the GAL‘s recommendation and weighed it in accordance with the other evidence admitted during the final hearing. Accordingly, we find Father‘s second assignment of error is without merit.
{31} Assignment of Error No. 3:
{32} THE COURT ERRED IN ATTRIBUTING SOCIAL SECUIRTY DISABILITY BENEFIT PAYMENTS PAYABLE TO THE CHILD AS AN INCLUSION INTO MOTHER‘S INCOME INSTEAD OF AS [sic] OFFSET AND CREDIT TO THE AMOUNT OF SUPPORT CALCULATED.
{33} In his third assignment of error, Father argues the juvenile court erred in its computation of support. As relevant here, the juvenile court‘s decision states that “social security and/or military benefits received by [Father] on behalf of [C.A.] be redirected to [Mother].”
{34} Both Mother and Father agree that remand is appropriate and cite to
Any non-means tested benefit received by the child or children subject to the order resulting from the claims of either parent shall be deducted from that parent‘s annual child support obligation after all other adjustments have been made. If that non-means tested benefit exceeds the child support obligation of the parent from whose claim the benefit is realized, the child support obligation for that parent shall be zero.
{35} Mother concedes that this court should remand this case for the purpose of determining the benefit C.A. receives and whether recalculation of child support is necessary based upon those figures. Accordingly, since this issue is conceded, Father‘s third assignment of error is sustained.
{36} Judgment affirmed in part, reversed in part, and remanded.
HENDRICKSON and BYRNE, JJ., concur.
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