Brandt v. BrandtBrandt v. Brandt
Judgment: Affirmed.
David E. Lowe, Thrasher, Dinsmore & Dolan Co., L.P.A., 100 Seventh Avenue, Suite #150, Chardon, OH 44024-1079 (For Plaintiff-Appellee).
Deanna L. DiPetta and Christa G. Heckman, Zashin & Rich Co., L.P.A., 55 Public Square, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellant).
Anna M. Parise, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, OH 44077 (Guardian ad litem).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Richard H. Brandt, appeals the judgment of the Geauga County Court of Common Pleas overruling his objections to the magistrate’s decision which ruled on the allocation of parental rights and responsibilities. This appeal presents two main issues: whether the trial court abused its discretion in finding that shared parenting is not in the best interests of the parties’ children, and whether the trial court abused its
{¶2} Richard and appellee, Kelly P. Brandt, were married on May 22, 1998. They have two children together: O.B., born June 13, 2001; and A.B., born May 28, 2003. On May 24, 2010, Kelly filed for divorce. The two stipulated to the division of assets, the order for child support, and other various issues. They were unable to reach an agreement concerning the allocation of parental rights for their children, though they agreed on a temporary visitation schedule for their two children, essentially a 50-50 sharing of time. The entry which allotted the temporary visitation schedule did not provide which parent was the legal custodian/residential parent, or if the two would engage in shared parenting—thus, the matter of custody was left outstanding.
{¶3} The issue of parental rights thereafter proceeded to a three-day trial where the magistrate considered testimony from Richard, Kelly, the Guardian ad Litem, and the Custody Evaluator. The deposition of the parties’ former nanny, Kelly Haddad, was also submitted in lieu of live testimony. Richard sought shared parenting, while Kelly opposed it. The magistrate released his decision, finding shared parenting to not be in the best interests of the two children and concluding Kelly should be designated the legal custodian and residential parent. The magistrate concluded Richard should have companionship, i.e., visitation on alternating weekends through the school year, and one weekday evening visit following a visitation weekend, with essentially equal sharing over summer vacation. Richard timely filed eight objections to the magistrate’s decision, which were overruled.
{¶5} Richard’s third, first, second, and eighth assignments of error state:
{¶6} [3.] The trial court erred and abused its discretion by declining to adopt Appellant’s proposed shared parenting plan without sufficient evidence rebutting the statutory presumption in favor of shared parenting.
{¶7} [1.] The trial court erred and abused its discretion by focusing on a single statutory factor, whether the parents could effectively communicate and cooperate with each other, in declining to adopt Appellant’s proposed shared parenting plan.
{¶8} [2.] The trial court abused its discretion because its finding that the parents could not sufficiently communicate and cooperate with each other was against the manifest weight of the evidence.
{¶9} [8.] The trial court erred and abused its discretion by naming Appellee as the children’s residential parent and legal custodian due to her admitted psychiatric issues and poor decisions.
{¶10} These assignments of error each require this court to address one universal question: whether the trial court abused its discretion in finding that shared parenting is not in the best interests of the parties’ children. Specifically, Richard’s above-framed set of assigned errors each involve the trial court’s alleged misapplication of
{¶11} Before we address the merits of these contentions, this court’s standard of review must be explained further. Custody determinations, including, as here, determinations involving proposed shared parenting plans, are entrusted to the sound discretion of the trial court. Liston v. Liston, 11th Dist. No. 2011-P-0068, 2012-Ohio-3031, ¶15. These determinations are left to the court’s discretion given the serious nature of the court’s proceeding and the impact the ultimate decision will have on those concerned. Dragon v. Dragon, 11th Dist. Nos. 2011-A-0037 & 2011-A-0039, 2012-Ohio-978, ¶9. Further, the trial court is in the best position to observe the witnesses, “‘which cannot be conveyed to a reviewing court by a printed record.’” Id., quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Thus, this court operates under an abuse of discretion standard. Moreover, given the considerations outlined above, we are “‘guided by the presumption that the trial court’s findings were indeed correct.’” Id.; see also Foxhall v. Lauderdale, 11th Dist. No. 2011-P-0006, 2011-Ohio-6213, ¶26, quoting
{¶12} The term “abuse of discretion” has been defined as the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev.2001) 11. “[W]here the issue on review has been confided to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.” Id. at ¶67. That is, “in determining whether the trial court has abused its discretion, a reviewing court is not to weigh the evidence, ‘but must ascertain from the record whether there is some competent evidence to sustain the findings of the trial court.’” Foxhall, 2011-Ohio-6213, ¶28, quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d Dist.1994).
{¶13}
{¶15} The factors found in
{¶16} Before we address the court’s evaluation of these factors, we must first consider Richard’s claim that there is a statutory presumption in favor of shared parenting that has not been properly rebutted by sufficient evidence.
{¶17} Richard, to some extent, recognizes this point, arguing in his brief: “While the trial court correctly notes that
{¶18} We now turn to the magistrate’s evaluation of those statutory factors. Contrary to Richard’s various assertions, there is no indication the trial court failed to consider the multiple, nonexclusive factors set forth in
{¶19} The trial court found that the parents could not effectively communicate and cooperate with each other.
{¶20} Moreover, this initial determination that the couple lacked cooperation and communication skills is not against the manifest weight of the evidence as Richard contends, but is supported by competent, credible evidence throughout the record. See Kost v. Hembus, 11th Dist. No. 2005-L-118, 2007-Ohio-895, ¶63. (“In Ohio, it is well settled that if an award of custody is supported by competent, credible evidence, such award will not be reversed as being against the manifest weight of the evidence by a reviewing court.”) Richard himself notes the divorce was “bitter” and “contentious,” and though he claims the “de facto,” “nearly 50-50 plan” the two had previously engaged in was a success, the trial court highlighted several factors taken from testimony during the hearings that suggest otherwise. Notably, the testimony indicates, as the trial court found, that the “parties’ long-established patterns of relation to each other have continued after their separation. Regrettably, the parties have low opinions of each other and barely acknowledge the other’s existence.”
{¶21} The evidence before the trial court suggested the two harbored feelings of resentment, animosity, and bitterness toward each other. The court found that Kelly has little respect for Richard as she feels he failed to support the family financially and
{¶22} Not surprisingly, the trial court found, and the record indicates, that these feelings did not give way to effective communication and cooperation. Rather, the two barely communicated outside of text and e-mail correspondence. When the two did manage to communicate, the exchanges were brief and lacked substantive qualities: the discussions did not involve decision-making concerning the children, only scheduling matters based on decisions already made. The record indicates attempts at substantive discussions regularly failed; for instance, an attempted exchange about enrolling A.B. in a summer tutoring program was rebuked as suspicious and
{¶23} Turning to the additional factors weighed by the court, Richard takes exception to the court’s alleged failure to consider the parties’ mental and physical health.
{¶24} Concerning additional, notable factors weighed by the court, O.B. expressed a desire to live with her mother (
{¶25} Thus, the trial court considered the factors and weighed the evidence as it pertained to each parent. As the factors the trial court relied on are supported by competent, credible evidence in the record, we conclude the trial court did not abuse its discretion in determining that the various findings should be adopted and that shared parenting is not in the best interests of the children.
{¶26} Richard’s third, first, second, and eighth assignments of error are therefore without merit.
{¶27} Richard’s sixth assignment of error states:
{¶28} “[6.] The trial court erred and abused its discretion in finding that Appellant’s proposed shared parenting plan was not in the children’s best interest because it failed to provide a final decision-maker regarding custodial decisions.”
{¶29} Though it found, pursuant to the factors outlined above, that shared parenting was not in the best interests of the children, the trial court nonetheless noted it did not find Richard’s proposed shared parenting plan to be acceptable on its merits. The trial court did not need to make this separate finding in light of its initial determination that shared parenting was not in the best interests of the children. As disposition on this assigned error would not result in any meaningful relief in light of the trial court’s other determinations, it is moot. Richard’s sixth assignment of error is therefore without merit.
{¶31} [4.] The trial court erred and abused its discretion by failing to properly consider the factors established by
{¶32} [5.] The trial court erred and abused its discretion in determining that a 50-50 split of companionship time was not in the children’s best interest because of an alleged lack of ‘consistency in the children’s home arrangements’ due to different parenting styles.
{¶33} [7.] The trial court erred and abused its discretion in rejecting the recommendations of the Child Custody Evaluator and the Guardian ad Litem regarding parental rights and responsibilities without sufficient reasons therefore.
{¶34} The remaining assignments of error require this court to address a second universal question: whether the trial court abused its discretion in making its companionship determination, giving Richard certain visitation rights. After the trial court found shared parenting was not in the best interests of the children, and after it rejected Richard’s proposed plan, the court’s next determination was Richard’s companionship rights with the children. Richard contends the trial court did not properly consider the statutory factors in making its determination. Richard argues the trial court should have found in favor of a 50-50 split of companionship time, as the Guardian ad Litem and Custody Evaluator recommended.
{¶36} Not unlike the statutes explained above, determining the companionship rights of a parent is also subject to several statutory factors, set forth in
{¶37} The trial court concluded that, as Kelly was already determined to be the legal custodian of the children, bearing the responsibility to make the fundamental decisions regarding their upbringing, she should also have the children with her the majority of the time. Richard argues the trial court, in so concluding, did not separately consider the matters of custody and companionship as it should have. However, this claim is not supported by the record. To the contrary, the magistrate once again reviewed the factors as applied to the separate statutes. The findings included, as supported by the record, that Kelly has been the primary caretaker for the children since their infancy and has bonded with them (
{¶38} However, the magistrate also recognized that Richard should have more contact with the children than the standard parenting guidelines would provide, i.e. every other weekend. Thus, the magistrate’s recommendations adopted by the trial court was to give Richard more parenting visitation rights, including evening visits every other week during the school year in addition to the standard “every other weekend” paradigm. Further, during summer vacation, the parties will share equal time with the children, alternating week-long visitations. These increased visitation terms are representative of the magistrate’s recognition that a father’s relationship with his children and his ability to visit with his child is not only important, but a natural right. See Eitutis v. Eitutis, 11th Dist. No. 2009-L-121, 2011-Ohio-2838, ¶81. But the terms also represent the magistrate’s appreciation that there must be consistency in the children’s home arrangements, particularly during the school year.
{¶39} Richard also takes exception to the court’s alleged rebuking of the Guardian ad Litem’s and Custody Evaluator’s recommendations concerning 50-50 parenting time. However, a trial court is not required to follow a guardian ad litem’s or custody evaluator’s recommendation and does not err in making a contrary order. Pettit v. Pettit, 12th Dist. No. CA2011-08-018, 2012-Ohio-1801, ¶80; Cichanowicz v. Cichanowicz, 3d Dist. No. 3-08-04, 2008-Ohio-4779, ¶16.
{¶41} Thus, the trial court did not abuse its discretion in making its companionship determination, giving Richard certain visitation rights. Richard’s fourth, fifth, and seventh assignments of error are therefore without merit.
{¶42} The judgment of the Geauga County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.