LORI BARTON v. WESLEY BARTON
Case No. 15-CA-13
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 9, 2015
[Cite as Barton v. Barton, 2015-Ohio-5194.]
Hon. Sheila G. Farmer, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 12 DR 417. JUDGMENT: AFFIRMED.
For Plaintiff-Appellant:
JAMES R. KINGSLEY
157 West Main Street
Circleville, OH 43113
For Defendant-Appellee:
DAVID L. ROWLAND
10705 Snyder Church Rd.
Baltimore, OH 43105
{¶1} Plaintiff-Appellant Lori Barton appeals the February 23, 2015 judgment entries of the Fairfield County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Lori Barton (Mother) and Defendant-Appellee Wesley Barton (Father) were married on June 18, 2005. One child was born as issue of the marriage: L.B., born on March 4, 2008.
{¶3} In March 2012, Father moved out of the marital home. Mother remains in the marital home. Mother filed a complaint for legal separation with children on August 21, 2012. Mother requested the trial court name her as residential parent and legal custodian of L.B. On October 16, 2012, Father filed an answer and counterclaim for divorce. Mother and Father filed motions for temporary orders.
{¶4} On October 18, 2012, the magistrate issued temporary orders naming Father as the residential parent and legal custodian of L.B. Mother was granted parenting time in accordance with Fairfield County Local Rule 17.
{¶5} Mother filed a motion to modify temporary orders on November 20, 2012. She requested the trial court name her as residential parent and legal custodian. A hearing was held before the magistrate on January 28, 2013. On January 29, 2013, the trial court denied Mother‘s motion to modify the temporary orders.
{¶6} Mother filed an amended complaint for divorce on May 13, 2013. Mother also filed a proposed shared parenting plan that designated her as the school placement parent, child support obligee, would cause Father to notify Mother prior to scheduling any medical appointments, and called for parenting time to be by agreement
{¶7} A trial on Mother‘s amended complaint and Father‘s counterclaim for divorce was held before the magistrate on September 20, 2013. The focus of this appeal is the trial court‘s award of custody to Father. At trial, the following evidence was adduced as to the custody of L.B.
{¶8} Since September 2009, Father has been employed as the chief of police of Lithopolis, Ohio. His hours of employment are from 7:00 a.m. to 3:00 p.m., Monday through Friday. Mother is employed with UPS. Mother works Monday through Friday, from 2:00 a.m. to 8:00 a.m.
{¶9} When L.B. was approximately two years old, L.B. was enrolled in a church-operated preschool for a few hours, one day a week. Father felt L.B. was not receiving the appropriate level of socialization and removed her from the church preschool. In 2012, L.B. was approximately three years old when Father enrolled L.B. into a private childcare facility named Sunnyside Childcare. Father was responsible for the tuition. Sunnyside provides childcare and educational programs for infants, toddlers, and preschool-aged children. L.B. attended preschool at Sunnyside from 7:00 a.m. until 12:15 p.m. on Mondays, Tuesdays, Wednesdays, and Fridays.
{¶10} Father testified he was concerned with L.B.‘s mental development. She appeared to him to be delayed in her speech development and social skills when compared to her peers. He was very concerned L.B. had autism. Father had L.B. tested for hearing problems, allergies, and heart issues to rule out medical causes for her developmental delays. L.B. suffered from five ear infections within a six-month period.
{¶11} After approximately one year with Sunnyside, Mother enrolled L.B. into the afternoon preschool program at Walnut Elementary in the Teays Valley Local School District, Fairfield County, Ohio. Walnut Elementary was close to Mother‘s home. L.B. was evaluated between August 2012 and October 2012 by the Teays Valley Local School District. In a report dated October 5, 2012, it was determined through a multi-disciplinary evaluation that L.B. was developmentally delayed and had deficits in her fine motor skills, receptive, expressive, social communication, and social skills. The school recommended L.B. be enrolled in a special needs classroom to interact with adults and peers and to have speech/language therapy and occupational therapy. L.B. was given an individualized education program (IEP) to meet her educational needs. Mother and Father both participated in the evaluation.
{¶12} When Father left the marital home, Father moved into a two-bedroom apartment in Groveport, Franklin County, Ohio. On October 18, 2012, the magistrate issued temporary orders naming Father as the residential parent and legal custodian of L.B. Father was informed by the Teays Valley Local School District that because Father was named the residential parent, L.B. could no longer attend Walnut Elementary because Father resided outside of the school district. Father enrolled L.B. in the preschool program at Sedalia Elementary in the Groveport Madison Local School
{¶13} Father requested L.B. be evaluated by Nationwide Children‘s Hospital. On September 9, 2013, L.B. received a diagnostic assessment that noted L.B. was developmentally delayed and had language and fine motor delays and self-stimulating behaviors. It was recommended that L.B. be assessed by a developmental pediatrician, psychologist, and speech pathologist. After the September 20, 2013 trial, Father submitted to the trial court the assessment by the Child Development Center of Nationwide Children‘s Hospital. The report found L.B.‘s symptoms were consistent with Mixed Expressive/Receptive Disorder and motor coordination deficits, and a lack of appropriate social skills. The results of the testing were not consistent with Autism Spectrum Disorder.
{¶14} At the time of the hearing and while L.B. was enrolled in Sunnyside Childcare and Sedalia Elementary, the parents’ schedule was as follows. Father brought L.B. to Sunnyside Childcare at 7:00 a.m. Mother picked up L.B. from Sunnyside around 12:15 p.m. and drove her to Sedalia Elementary for afternoon preschool. Father picked up L.B. from Sedalia Elementary. Father had custody of L.B. from Sunday at 6:00 p.m. to Wednesday at 3:30 p.m. On Wednesdays, Mother had custody of L.B. from
{¶15} The magistrate had a hearing on June 11, 2014 based on Mother‘s motion filed January 29, 2014.
{¶16} On June 24, 2014, the magistrate granted the parties’ divorce. The magistrate named Father as the residential parent and legal custodian of L.B. After reviewing the factors under
{¶17} Mother filed objections to the magistrate‘s decision on July 2, 2014 and September 24, 2014.
{¶18} On February 23, 2015, the trial court overruled Mother‘s objections. The trial court issued the Final Decree of Divorce on February 23, 2015. It is from this judgment Mother now appeals.
ASSIGNMENTS OF ERROR
{¶19} Mother raises seven Assignments of Error:
{¶20} I. DID THE TRIAL JUDGE COMMIT PREJUDICIAL ERROR BY FAILING TO MAKE A PROPER, DE NOVO, INDEPENDENT REVIEW OF THE MAGISTRATE‘S DECISION?
{¶21} II. DID THE DELAY OF NINE MONTHS BY THE MAGISTRATE TO ISSUE HER DECISION AND THE DELAY OF FOUR MONTHS BY THE JUDGE TO RULE ON OBJECTIONS (17 MONTHS TOTAL ALLOWING FOR TRANSCRIPT AND
{¶22} III. WAS IT PREJUDICIAL ERROR NOT TO RECUSE THE MAGISTRATE FOR BIAS?
{¶23} IV. WAS IT PREJUDICIAL ERROR TO CONSIDER POST-FILING EVIDENCE TO DECIDE CUSTODY?
{¶24} V. WAS IT PREJUDICIAL ERROR TO AWARD CUSTODY OF [L.B.], D.O.B. 3/4/08 TO FATHER AND TO REFUSE TO ACCEPT MOTHER‘S SHARED PARENTING PLAN?
{¶25} VI. WAS IT PREJUDICIAL ERROR TO ORDER STANDARD VISITATION INSTEAD OF SPECIFIC VISITATION IN ACCORDANCE WITH UNDISPUTED PAST PRACTICE?
{¶26} VII. WAS IT PREJUDICIAL ERROR TO PLACE THE CHILD IN DAYCARE WHEN MOTHER WAS AVAILABLE AND CLAIMED THE RIGHT TO FIRST SIT?
ANALYSIS
I. Independent Review of the Trial Court
{¶27} Mother argues in her first Assignment of Error that the trial failed to make an independent, do novo review of the magistrate‘s decision. We disagree.
{¶28}
{¶29} The trial court overruled Mother‘s objections to the magistrate‘s decision on February 23, 2015. In its judgment entry, the trial court states that pursuant to
{¶30} Mother‘s argument that the trial court failed to exercise independent judgment rests on the fact that the court failed to specifically address all of her arguments in support of her objections to the magistrate‘s decision. The trial court‘s failure to agree with Mother or to specifically discuss every factor weighing into the decision does not rebut the presumption that the trial court conducted an independent
{¶31} Mother‘s first Assignment of Error is overruled.
II. Date of Trial Court‘s Judgment
{¶32} Mother argues in her second Assignment of Error that the timing of the trial court‘s judgment entry denied Mother her constitutional right of due process.
{¶33} Mother originally filed the action on August 21, 2012. L.B. was four years old. The matter went to trial on September 20, 2013. The magistrate issued her decision on June 24, 2014. The trial court overruled Mother‘s objections to the magistrate‘s decision and issued the final decree of divorce on February 23, 2015. At the time of this appeal, L.B. is approximately seven years old and is attending full-day elementary school.
{¶34} Mother argues the untimeliness of the trial court violated her constitutional right of due process. She argues because of the delay in rendering its judgment, the trial court‘s decision is no longer applicable to L.B. because of the child‘s growth and maturation.
{¶35} This Court has previously addressed the challenge of rendering an opinion in a custody case based on the passage of time between the inception of a case and the final order. See Mitchell v. Manders, 5th Dist. Morrow No. 14CA0011, 2015-Ohio-1529, 71 (at the time of the trial court‘s full hearing, the child was in first grade and by the appellate decision, the child was 11 years old and in the fourth grade). The Court is tasked with reviewing the facts in evidence and determining whether there was competent and credible evidence to support the trial court‘s decision on custody.
{¶36} In this case, the trial court determined it was in the best interests of the child that Father be named the residential parent and legal custodian. The trial court‘s decision was based primarily on L.B.‘s documented developmental delays and the differences between the parents’ ability and desire to meet the needs of L.B.‘s developmental delays. While time has passed between the full hearing, the trial court‘s final order, and this appeal, the basis of the trial court‘s determination of custody is still ripe for our review.
{¶37} Mother‘s second Assignment of Error is overruled.
III. Magistrate Bias
{¶38} Mother contends in her third Assignment of Error that the magistrate assigned to hear the matter was biased; therefore, the magistrate should have recused herself from the case.
{¶39} At the January 28, 2013 hearing on Mother‘s motion to modify temporary orders, the magistrate stated her child was special needs and she understood the IEP process. It was Mother‘s argument at the trial court level that Father was unnecessarily taking L.B. to numerous doctors to search for a diagnosis to explain L.B.‘s developmental delays. Mother argues that because of the magistrate‘s personal history, the magistrate was biased towards Father.
{¶40} Mother does not dispute that she did not raise this issue before the trial court through a motion to disqualify. She states the issue was only discovered upon a review of the January 28, 2013 transcript in preparation of her objections to the magistrate‘s decision. She raised the argument in support of her objection to the magistrate‘s decision as to custody.
{¶41} The proper method to challenge a magistrate‘s impartiality is to file a motion for disqualification with the trial court. Lingenfelter v. Lingenfelter, 9th Dist. Wayne No. 14AP0005, 2015-Ohio-4002, -- N.E.3d --, ¶ 10.
{¶42} There was no motion before the trial court to disqualify the magistrate for bias. When Mother discovered the alleged bias of the magistrate, Mother did not file a motion to disqualify or raise the issue as a separate objection to the magistrate‘s decision. As such, we find the matter to be waived.
{¶43} Mother‘s third Assignment of Error is overruled.
IV. Post-Trial Evidence
{¶44} Mother argues in her fourth Assignment of Error that it was prejudicial error for the trial court to consider evidence filed after the final hearing in order to determine custody.
{¶45} On January 29, 2014, Mother filed a post-hearing motion. In response to Mother‘s post-hearing motion, Father submitted the results of the Interdisciplinary Assessment Results conducted by Nationwide Children‘s Hospital along with other evaluations conducted to determine L.B.‘s developmental status. Mother argues it was prejudicial error for the trial court to consider such evidence submitted after the full hearing.
{¶46} A review of the transcript of the June 11, 2014 hearing before the magistrate shows that Mother took the opposite position and requested the magistrate take judicial notice of the report from Nationwide Children‘s Hospital. (June 11, 2014 Tr.,
{¶47} Accordingly, we overrule Mother‘s fourth Assignment of Error.
V. Best Interests of the Child
{¶48} Mother argues the trial court abused its discretion when it rejected Mother‘s proposed shared parenting plan and awarded custody of L.B. to Father. We disagree.
{¶49} In any divorce proceeding, the court shall allocate the parental rights and responsibilities for the care of the minor children of the marriage.
{¶50}
(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
(d) The child‘s adjustment to the child‘s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; ** *;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{¶51} Custody issues are some of the most difficult decisions a trial judge must make. When reviewing a ruling pertaining to the allocation of parental rights, the trial court is to be afforded great deference. Tipton v. Tipton, 5th Dist. Fairfield No. 13-CA-19, 2013-Ohio-4901, ¶ 19 citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). Thus, we will not reverse a child custody decision that is supported by a substantial amount of competent, credible evidence absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.
{¶52} In the magistrate‘s decision, the magistrate reviewed in detail each factor under
{¶53} We find the trial court did not abuse its discretion in finding the proposed shared parenting plan submitted by Mother was not in the best interest of L.B.
{¶54} Mother‘s fifth Assignment of Error is overruled.
VI. Local Rule 17 Parenting Time with Mother
{¶55} The trial court ordered that Mother would have parenting time of not less than Fairfield County Local Rule 17, as well as such other times as the parties agree. Once L.B. started kindergarten, the Wednesday overnight would be contingent upon Mother transporting L.B. to school on Thursday. In the summer, Mother would have the child while Father was working, except for those times L.B. was in Sunnyside Childcare or a similar program, or when Father worked in the evening. Mother was responsible for transportation from Sunnyside to her home.
{¶56} Mother argues the trial court should have ordered parenting time based on past practices of the parties, which was in evidence, rather than on Local Rule 17.
{¶57} A review of the trial court‘s final decree of divorce shows that it provided for adjustment of the parenting time by agreement of the parties. The testimony of Mother and Father shows that they adjusted parenting time based on agreement. Further, the testimony of the parties as to parenting time was substantially similar to the schedule outlined in the final decree.
{¶58} Mother‘s sixth Assignment of Error is overruled.
VII. Daycare
{¶59} Mother argues in her seventh Assignment of Error that it was error to allow Father to place L.B. in Sunnyside Childcare when Mother was available to watch L.B.
{¶60} The parties have noted that at the time of this appeal, L.B. is currently attending full-day kindergarten. Mother argues L.B. should not be enrolled in Sunnyside Childcare during the summer.
{¶61} Mother cites to In re Schwendeman, 4th Dist. Washington Nos. 05CA18, 05CA25, 2006-Ohio-636, in support of her contention that daycare is an unreasonable situation. The court stated, [w]hile it may be desirable for a child to spend that time with family members rather than in daycare, we cannot find that the trial court abused its discretion in declining to find that Father‘s need to utilize daycare services rendered him unsuitable to parent Baylee. Indeed, if Father‘s employment and resulting need for daycare services rendered him unsuitable, virtually every working parent would be unsuitable to care for their own children when compared with an unemployed or retired grandparent seeking custody. As the Davis and Troxel courts noted, the state cannot infringe on a parent‘s fundamental right to make child rearing decisions simply because
{¶62} There is no dispute that Nationwide Children‘s Hospital diagnosed L.B. with Mixed Expressive/Receptive Disorder, motor coordination deficits, and a lack of appropriate social skills. It was recommended that L.B. be given opportunities to socialize with her peers and receive speech and occupational therapy. Father enrolled L.B. in Sunnyside Childcare because it provided socialization for L.B. in a preschool setting. Based on L.B.‘s diagnosis, we find no abuse of discretion for the trial court to order that in the summer, Mother would have the child while Father was working, except for those times L.B. was in Sunnyside Childcare or a similar program, or when Father worked in the evening.
{¶63} Mother‘s seventh Assignment of Error is overruled.
{¶64} Mother‘s seven Assignments of Error are overruled.
{¶65} The judgment of the Fairfield County Court of Common Pleas, Domestic Relations Division is affirmed.
By: Delaney, J.,
Farmer, P.J. and
Baldwin, J., concur.