Bishop v. BishopBishop v. Bishop
Ralph A. Kerns and Ryan D. Kuhn, Ralph A. Kerns & Associates, Worthington, Ohio, for Appellant.
Michael D. Buell, Buell & Sipe Co., L.P.A., Marietta, Ohio, for Appellee.
Kline P.J.:
{¶1} Kelly M. Bishop (hereinafter “Kelly“) appeals the judgment of the Washington County Court of Common Pleas. The trial court modified the allocation of parenting time under a shared parenting plan between Kelly and her ex-husband, Keith H. Bishop (hereinafter “Keith“). Initially, Kelly contends that the trial court‘s divorce entry did not properly establish a shared parenting plan under
I.
{¶2} Kelly and Keith were married on June 27, 1998. They had one child (hereinafter the “Child“) together. The Child was born on November 19, 2000.
{¶3} On September 12, 2002, Keith filed for divorce on the grounds of Gross Neglect of Duty and Extreme Cruelty.
{¶4} On February 27, 2003, the trial court ordered Kelly and Keith to submit to psychological evaluations. Dr. Michael Harding performed these evaluations and also interviewed the Child.
{¶5} Kelly and Keith entered into a Separation Agreement and Property Settlement. In its March 23, 2004 Journal Entry in Divorce (hereinafter the “Divorce Entry“), the trial court found the agreement to be fair and equitable. The trial court further stated that Kelly and Keith have “reached agreement with regard to the allocation of parental rights and responsibilities stating the same on the record and shall share the parenting of the minor child to wit: [The Child] born November 19, 2000, on the following terms:
{¶6} RESIDENCE AND SCHOOL DISTRICT: [The Child] shall reside with the parents on a substantially equal basis with the mother designated residential parent for school purposes.
{¶7} * * *
{¶8} VISITATION: The father shall be entitled to this Court‘s standard visitation with the minor child in accordance with the Policy Statement concerning Visitation as journalized in the Court of Common Pleas, Washington County, Ohio on June 3, 1998 incorporated herein by reference and as modified thereafter.
{¶9} In addition to standard visitation the parties agree to expand the Father‘s weekend visitation by allowing earlier pick up on Friday if Father‘s work allows and the return of the child at 8:30 p.m Sunday evening.
{¶10} Father shall have mid-week visitation with the minor child Wednesday one week and Tuesday and Wednesday on alternate weeks until school adjourns for the summer. Thereafter he will have two nights each week to match up with Mother‘s teaching schedule. Father may pick the child up for mid-week visitations early if his work allows and shall return the child each morning to the mother‘s home for day care purposes.
{¶11} Each party shall be entitled to two weeks in the summer with no visitation to allow for vacations. Each party shall use the other as a preferred sitter.
{¶12} * * *
{¶13} The Court has specifically reviewed the provisions with regard to the allocation of parental rights and responsibilities and finds those to be in the best interest of the minor child.” Divorce Entry at 2-3 (emphasis added).
{¶14} In December 2005, Keith married Milagros Bishop (hereinafter “Milagros“). Keith and Milagros have one child together.
{¶15} On April 27, 2006, Keith filed a motion for contempt against Kelly. Keith asserted that Kelly had “persisted in a pattern of behavior, elevated since [Keith‘s] remarriage, designed to interfere with [Keith‘s] rights under the parties’ shared parenting plan.” After a hearing, the trial court found Kelly in contempt of court.
{¶16} On January 22, 2007, Kelly filed a motion to (1) modify the existing parenting schedule and (2) clarify the Divorce Entry‘s order regarding midweek visitation. Subsequently, Keith filed a motion to terminate the shared parenting plan and designate Keith as the Child‘s custodial parent.
{¶17} On April 18, 2007, Keith filed another contempt motion against Kelly.
{¶18} In August 2007, the trial court held a hearing on all pending motions. And the following month, Kelly and Keith both filed their proposed findings of fact and conclusions of law.
{¶19} Before the trial court could rule on the pending motions, Kelly filed a motion for leave to present new evidence. Apparently, Milagros filed a complaint for divorce on October 22, 2007. In that case, Milagros filed an affidavit claiming that Keith had been acting erratically and threatening suicide. Milagros further claimed that she feared for her own safety and for the safety of her child. The
{¶20} At the July 10, 2008 hearing, Milagros downplayed her earlier affidavit. She testified that she now got along with Keith and that Keith caused her no fear. Keith‘s attorney asked Milagros the following question: “[T]o the extent that there may have been issues back in October, you‘ve resolved within your own mind, that there are no issues of that nature today?” And Milagros responded, “[y]es.” Transcript at 503.
{¶21} In light of the new evidence, Dr. Harding evaluated Kelly and Keith once again. At the August 19, 2008 hearing, Dr. Harding testified that Keith did not pose a risk to himself or to others. Dr. Harding further testified that, consistent with his earlier findings, he still recommended shared parenting with a fairly even split of parenting time. When asked about an alternating week parenting schedule, Dr. Harding testified, “If -- if such an arrangement were made, and if both parties agreed to respect each other[,] * * * I think it would work.” Transcript at 520. (Dr. Harding also testified that an alternating week parenting schedule was not “the only way to -- to do that [accomplish shared parenting with a fairly even split of parenting time].“)
{¶22} On September 8, 2008, the trial court issued a ruling on all pending motions (hereinafter the “Decision“). In the Decision, the trial court (1) denied Keith‘s motion to terminate shared parenting, (2) retained Kelly as the Child‘s residential parent, (3) modified the allocation of parenting time, and (4) found Kelly in contempt of court for denying Keith his extra visitation.
{¶23} In relevant part, the trial court modified the shared parenting plan as follows: “The parties shall have parenting time with the child on alternating weeks, exchanging the child each Sunday at 6:00 p.m. with the parent keeping the child for the coming week to pick the child up at the home of the other parent. * * * Each parent is granted two (2) consecutive weeks each summer for a vacation. * * * [And t]here is no midweek visitation, early pickup or preferred sitter arrangement except by mutual agreement of the parties.” October 17, 2008 Journal Entry at 2.
{¶24} Kelly appeals, asserting the following four assignments of error: I. “THE COURT ERRORED [sic] BY FINDING THAT THE MARCH 23, 2004 JOURNAL ENTRY IN DIVORCE CONSTITUTED A SHARED PARENTING ORDER OR DECREE. THERE IS NO SUCH THING AS DE FACTO SHARED PARENTING. EITHER A SHARED-PARENTING DECREE EXISTS OR IT DOES NOT.” II. “THE PROPER INQUIRY WAS NOT WHETHER TERMINATION OF THE SHARED PARENTING PLAN WAS PROPER, BUT WHETHER IMPLEMENTATION OF A SHARED PARENTING PLAN WAS PROPERLY REQUESTED AND, IF SO, WAS THE PLAN IN THE BEST INTERESTS OF THE MINOR CHILD.” III. “THE COURT ERRORED [sic] IN SUSTAINING FATHER‘S MARCH 14, 2007 MOTION FOR MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES. THE COURT FURTHER ERRORED [sic] IN MODIFYING THE PARTIES’ PARENTING TIME SCHEDULE.” And, IV. “THE COURT ERRORED [sic] BY FAILING TO
II.
{¶25} We will address Kelly‘s first and second assignments of error together. In her first and second assignments of error, Kelly essentially contends that the Divorce Entry did not properly establish a shared parenting plan under
{¶26} A trial court has broad discretion in determining parental custody rights. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. This is due, in part, to the fact that “custody issues are some of the most difficult and agonizing decisions a trial judge must make.” Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418. Therefore, we will not disturb a trial court‘s custody determination unless the court abused its discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 74. An “abuse of discretion” connotes that the court‘s attitude is “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219; Booth at 144. “[A]lthough a trial court‘s discretion in a custody proceeding is broad, it is not absolute. The trial court must follow the procedure described in
{¶27} Initially, we find that the plain language of the Divorce Entry does indeed establish a shared parenting plan. The Divorce Entry states that Kelly and Keith will “share the parenting” and that the Child “shall reside with the parents on a substantially equal basis.” Furthermore, we note the following: (1)
{¶28} However, in this appeal, Kelly for the first time argues that the Divorce Entry did not establish shared parenting because
{¶29} “Black‘s Law Dictionary (8th Ed.2004) 278 defines ‘collateral attack’ as ‘[a]n attack on a judgment in a proceeding other than a direct appeal; esp., an attempt to undermine a judgment through a judicial proceeding in which the ground of the proceeding (or a defense in the proceeding) is that the judgment is ineffective. * * * Also termed indirect attack. Cf. Direct Attack (1).‘” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, at ¶17. See, also, Black v. Aristech Chem. Co., Scioto App. No. 07CA3155, 2008-Ohio-7038, at ¶14 (discussing the various definitions of “collateral attack“). “The objective of a collateral attack is to modify a previous judgment because it is allegedly ineffective or flawed for some fundamental reason.” Ohio Pyro at ¶19.
{¶30} Here, if Kelly wanted to attack the alleged procedural flaws in the Divorce Entry, the proper avenue would have been a direct appeal from that judgment. See
{¶31} Accordingly, we overrule Kelly‘s first and second assignments of error.
III.
{¶33} To resolve this issue, we must first interpret
{¶34} Initially, we must examine the manner in which the trial court modified the shared parenting plan. In his Motion for Modification of Parental Rights, Keith asked the trial court to terminate the shared parenting plan and designate Keith as the Child‘s residential parent and legal custodian. And in its journal entry, the trial court stated that it was granting, in part, Keith‘s Motion for Modification of Parental Rights. However, the trial court refused to terminate the shared parenting plan or designate Keith as the Child‘s residential parent for school purposes. Therefore, the trial court did not actually grant any part of Keith‘s motion (although the trial court‘s modification of the shared parenting plan somewhat resembles the terms found in Keith‘s Proposed Findings of Fact and Conclusions of Law).
{¶36} Having found that the trial court had the power to modify the allocation of parenting time, we must now determine whether the trial court properly exercised that power.1 “[W]e review the merits of a trial court‘s
{¶37} “The court shall not make any modification to [the terms of a shared parenting plan], unless the modification is in the best interest of the children.”
{¶38} The trial court‘s Decision contains an extensive factual discussion and references to
{¶39} Here, we find that the trial court‘s reasons for modifying the terms of the shared parenting plan are apparent from the record. First, the trial court noted that the Child was “diagnosed with an adjustment disorder caused by a failure to successfully acclimate to the parent‘s divorce.” Decision at 5. Because of this diagnosis, Children‘s Hospital in Columbus recommended a predictable, regular schedule for the Child. The trial court agreed and found “that there is a need for added stability and predictability for the child in terms of scheduling. * * * [A] schedule easy to understand and regular in all respects would be in the child‘s best interest.” Id. at 8-9. Therefore, it is apparent from the record that the trial court considered the Child‘s mental health pursuant to
{¶40} Moreover, the trial court discussed Kelly‘s history of denying Keith his right to parenting time under the shared parenting plan. “To be sure, there is
{¶41} Finally, when determining the best interest of the child, a trial court must consider all relevant factors – including any relevant factors that may not be delineated in
{¶42} Based on the foregoing discussion, we find that the trial court adequately considered the best interest of the Child. Furthermore, we find that the trial court modified the terms of the shared parenting plan for the following reasons: (1) the trial court believed that a more predictable schedule would benefit the Child‘s mental health; (2) because Kelly had already denied Keith his rightful parenting time and may have continued to do so; and (3) because Kelly
{¶43} We further find that the trial court did not abuse its discretion by modifying the terms of the shared parenting plan. The trial court could have reasonably concluded that the changes to the shared parenting plan were in the Child‘s best interest. First, it is reasonable to assume that the predictability of the alternating-week schedule may help alleviate the Child‘s adjustment disorder. And second, the trial court could have reasonably determined that Keith needed additional parenting time because Kelly had attempted to endanger Keith‘s relationship with the Child. We can find nothing unreasonable, arbitrary, or unconscionable about the trial court‘s decision to modify the allocation of parenting time.
{¶44} Accordingly, for the foregoing reasons, we overrule Kelly‘s third assignment of error.
IV.
{¶45} In her fourth assignment of error, Kelly contends that the trial court erred by not designating her as the Child‘s legal custodian. Again, Kelly bases this argument on the belief that the Divorce Entry did not establish shared parenting. Essentially, Kelly argues that, because the trial court did not find a change in circumstance, she should have retained her designation as the Child‘s primary residential parent and legal custodian.
{¶47} Accordingly, we overrule Kelly‘s fourth assignment of error. Having overruled all of Kelly‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
{¶48} In addition to the reasons stated in the principal opinion, I reject Ms. Bishop‘s arguments that the shared parenting provisions of the decree are flawed because she invited any errors that might exist, i.e. she joined in the submission of the content and structure of the very plan the court adopted.
{¶49} I concur in judgment only on the opinion‘s resolution of Assignment of Error IV.
It is ordered that the JUDGMENT BE AFFIRMED, and appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J.: Concurs with Concurring Opinion.
Abele, J.: Concurs in Judgment and Opinion.
For the Court
BY:
Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.