DEVIN CARR v. AMANDA CARR
CASE NOS. CA2015-02-015, CA2015-03-020
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
9/26/2016
[Cite as Carr v. Carr, 2016-Ohio-6986.]
M. POWELL, P.J.
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 13DR36836
Timothy A. Tepe, Dinsmore & Shohl LLP, 225 East Fifth Street, Suite 1900, Cincinnati, Ohio 45202, for appellee/cross-appellant
M. POWELL, P.J.
{¶ 1} Plaintiff-appellant/cross-appellee, Devin Carr (“Father“), appeals a decision of the Warren County Court of Common Pleas, Domestic Relations Division, granting defendant-appellee/cross-appellant, Amanda Carr (“Mother“), sole authority to make all nonemergency medical decisions regarding the parties’ minor children, and granting the parties equal parenting time. Mother appeals the trial court‘s decision designating Father as
{¶ 2} The parties were married in August 2011. They have two children, a daughter born in April 2012 (“Daughter“) and a son born in September 2013 (“Son“). In December 2013, Father filed for divorce. On December 10, 2014, a hearing on Father‘s divorce complaint was held before the trial court. The primary concern at the hearing was the allocation of parental rights and responsibilities for the children.
{¶ 3} Throughout the marriage, the family resided in a house belonging to Father and located in Morrow, Ohio. Although Father has a bachelor‘s degree in Family Studies and Mother has a bachelor‘s degree in Science and Family Studies, neither party was employed during the marriage. Rather, the family was supported by Father‘s annual annuity of $55,104.1 The parties separated on Thanksgiving 2013.
{¶ 4} Two arguments precipitated the parties’ separation. On the eve of Thanksgiving 2013, during an argument between the parties over how to properly warm up frozen breast milk, Father became so angry he punched a hole in a wall. At the time, Son was in his car seat beneath the hole and small pieces of dry wall fell on him. The next day, the parties invited their parents to their house for a Thanksgiving dinner. Father and Mother got into an argument when Mother kept trying to interfere with a private conversation between Father and his mother (“Paternal Grandmother“). Following an altercation during which everyone was yelling and the children were crying, Father left the marital home with his parents. When he later returned, the house was empty: Mother had vacated the marital residence with the children. Mother returned the children to Father and the marital home 11 days later.
{¶ 6} Following Father‘s divorce complaint and throughout the proceedings, the parties were granted parenting time with the children on a two-day rotating schedule. Consequently, the parties exchanged the children every two days at noon at a gas station on Montgomery Road, Cincinnati, near I-275. Both parties testified about problems at the exchanges. Father complained that Mother refuses to speak to him about the children and that she never exchanges the children prior to noon, the time Father‘s parenting time begins, even if Mother and the children arrive early for the exchange. Paternal Grandmother corroborated Father‘s testimony. By contrast, Mother testified she arrives on time for the exchanges but that Father is angry because he arrives early and ends up waiting.
{¶ 7} Mother testified the exchanges are always “violent.” Specifically, Mother claims that Father is angry, throws things belonging to the children at her, and yells and cusses at her in front of the children. A bystander who was at the gas station during the November 4, 2014 exchange corroborated Mother‘s testimony. The bystander testified that five minutes before noon, Mother was in her car getting the children ready to go when Father approached the car and started yelling, “You‘re cutting into my time,” to which Mother replied, “it‘s not
{¶ 8} Father and Mother love their children and are bonded with them. The children are also bonded with their paternal and maternal relatives. However, the record shows that both parties have differing childrearing philosophies and practices which often clash. Each describe the other parent‘s care of the children as unhealthy and/or abusive and view their own parenting care as “the right way” to rear the children.
{¶ 9} Testimony at the hearing revealed that in June 2014, Daughter suffered a second-degree burn on her foot when Father put her on a hot stove so that she could watch the turn table in a microwave. Mother did not find out about the burn until the following day when the parties exchanged the children. Mother also testified Father has once left Daughter unattended in a bathtub, and that Daughter has fallen down the stairs several times under Father‘s supervision.
{¶ 10} The parties’ main disagreement concerned whether the children suffered from constipation and the appropriate course of treatment. Mother testified that both children have an ongoing problem with constipation which she tries to address with diet and a laxative recommended by their pediatrician. Father does not believe the children are constipated. He has given the laxative to Daughter but stopped giving it, believing it made Daughter sluggish. Father admitted he stopped giving the laxative without first consulting the
{¶ 11} Mother and Father were evaluated by a psychologist. Based upon the evaluation, the psychologist expressed the opinion that both parties were appropriate parents and that there were no concerns about the ability of either to rear the children. Nonetheless, she recommended that Father be designated residential parent and custodian of the children because Father is not employed, has no plans in the near future of being employed, and is therefore “available all the time to the children.” The psychologist stated that by contrast, Mother‘s availability to the children is curtailed as a result of her graduate studies and assistantship.
{¶ 12} The parties were divorced by decree on February 5, 2015. Pursuant to the divorce decree, Father was designated as the residential parent and legal custodian of the children; the parties were granted equal parenting time on an alternating 2-2-3-day schedule as follows:
Week I:
Father: Monday at noon until Wednesday noon.
Mother: Wednesday noon am until Friday noon.
Father: Friday at noon am until Monday at noon.Week II:
Mother: Monday at noon until Wednesday noon.
Father: Wednesday noon until Friday noon.
Mother: Friday at noon until Monday at noon.
Father was ordered to provide the primary health insurance for the children. Mother was
{¶ 13} Father appeals, raising two assignments of error. Mother cross-appeals, raising one assignment of error.
{¶ 14} Mother‘s Cross-Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE TRIAL COURT NAMED FATHER RATHER THAN MOTHER THE RESIDENTIAL PARENT AND CUSTODIAN OF THE MINOR CHILDREN.
{¶ 16} Father‘s Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN IT PROVIDED APPELLEE WITH THE SOLE DECISION-MAKING AUTHORITY REGARDING THE CHILDREN‘S NON-EMERGENCY MEDICAL TREATMENT.
{¶ 18} Mother argues the trial court abused its discretion in designating Father as the children‘s residential parent and legal custodian, given Father‘s flashes of anger when the parties exchange the children, his failure to follow basic medical advice regarding the children, his belief Mother consults the children‘s pediatrician too often for trivial reasons, and his failure to ensure Daughter‘s safety.
{¶ 19} In turn, Father argues the trial court abused its discretion in granting Mother sole authority to make all nonemergency medical decisions regarding the parties’ children. Specifically, Father first asserts the trial court‘s decision violates
{¶ 20} A trial court‘s decision allocating parental rights and responsibilities will not be disturbed on appeal absent an abuse of discretion. Albrecht v. Albrecht, 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245, 2015-Ohio-4916, ¶ 21. “This highly deferential standard of review rests on the premise that the trial judge is in the best position to determine the credibility of witnesses because he or she is able to observe their demeanor, gestures, and attitude.” Rarden v. Rarden, 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10. This is especially true in cases involving child custody, “since there may be much that is evident in the parties’ demeanor and attitude that does not translate well to the record.” Id.
{¶ 21}
the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.
{¶ 22} “Of paramount concern, in any custody decision, is the requirement that the trial court‘s judgment be made in the best interest of the child.” Cross v. Cross, 12th Dist. Preble No. CA2008-07-015, 2009-Ohio-1309, ¶ 9. In determining what parenting arrangement is in the child‘s best interest, the trial court must consider all relevant factors, including those set
{¶ 23} We first address Mother‘s argument that the trial court abused its discretion in naming Father as the residential parent and custodian of the children. Mother initially notes that the trial court did not issue a written decision and failed to mention the
{¶ 24} Although
{¶ 25} In addition, a judgment entry may be general unless a party makes a specific request for separate findings of fact and conclusions of law pursuant to
{¶ 26} After thoroughly reviewing the record, we find that the trial court did not abuse its discretion in designating Father as the residential parent and custodian of the children.
{¶ 27} The record shows that both parties are good parents who love their children and are bonded with them. Both provide loving and caring homes. However, because the parties did not seek shared parenting, it was incumbent on the trial court to designate one of them as residential parent and custodian of the children. At the close of the hearing, the trial court designated Father as the residential parent and custodian of the children, “subject to the equal parenting time,” on the ground Father was the parent with most stability in his life. We find no abuse of discretion. Because Father is not employed, he is more available to the children. By contrast, Mother‘s graduate studies and assistantship make her less available to provide care for the children than Father. Father also lives in the home where the children have always lived.
{¶ 28} We are mindful of Mother‘s concerns regarding Father‘s failure to follow basic medical advice regarding the children and his belief Mother consults the children‘s pediatrician often. However, these concerns are alleviated by the trial court‘s decision designating Mother as the sole-decision maker for nonemergency medical decisions regarding the children, and by the court‘s grant of equal parenting time.
{¶ 29} We are likewise mindful of Mother‘s concerns regarding Father‘s anger during the exchange of the children and his failure to ensure Daughter‘s safety. With regard to the latter, the record does not indicate whether the trial court found Mother‘s testimony credible. As stated earlier, Mother never requested findings of fact and conclusions of law pursuant to
{¶ 30} We next address Father‘s argument the trial court abused its discretion in granting Mother sole authority to make all non-emergency medical decisions regarding the parties’ children.
{¶ 31} Father first asserts that the trial court‘s decision violates
{¶ 32} There are two ways under
{¶ 33} “Parental rights and responsibilities” is not defined in
{¶ 34}
{¶ 35}
{¶ 36} We further note that although Mother has sole authority over non-emergency medical decisions regarding the children, Father can nevertheless fulfill his role as primary caretaker and legal custodian of the children. Father retains significant authority as residential parent and legal custodian of the children, including the authority to determine the children‘s school, extracurricular activities, religious affiliation, and associations.
{¶ 37} Father also asserts that the trial court‘s decision is an abuse of discretion given
{¶ 38} Speculation that the parties will be unable to cooperate to implement the trial court‘s order does not render the order an abuse of discretion. The trial court was in the best position to determine if the parties could effectively implement the order. See Rarden, 2013-Ohio-4985 at ¶ 10 (the trial judge is in the best position to determine the credibility of witnesses because he or she is able to observe their demeanor, gestures, and attitude).
{¶ 39} Father asserts that the distance between the parties’ homes will make scheduling and coordination of medical appointments difficult. However, the trial court‘s order makes Mother responsible for both scheduling the appointments and transporting the children to and from the appointments. Thus, any burden resulting from the distance between the parties’ homes is borne exclusively by Mother. Further, under the grant of equal parenting time, the children reside with Mother half the time, making it more convenient for her to schedule the appointments during her parenting time with the children.
{¶ 40} Contrary to Father‘s assertion, there is evidence to support the trial court‘s determination that Mother is the more appropriate parent to make all non-emergency medical decisions regarding the children. Although Father claims there is no evidence that he neglects the children‘s medical needs, he testified he unilaterally stopped giving laxative to Daughter because he felt it made her sluggish. Father admitted he stopped giving the laxative without first consulting the pediatrician, despite an agreed entry ordering the parties to “comply with the recommendations of the children‘s doctor [o]n all matters regarding the children‘s health and well-being,” and a subsequent entry from the trial court ordering the
{¶ 41} Father finally asserts that Mother might take advantage of the fact he is required to provide the health insurance for the children to run up medical bills. However, the divorce decree plainly provides that “all co-pays, deductible costs required under the health insurance policy and all other uncovered health care expenses” must be paid 50 percent by Father and 50 percent by Mother, thus providing a disincentive for Mother to seek unnecessary medical treatment for the children. We also note that the divorce decree requires Mother to consult with Father regarding any non-emergency medical decisions and to notify Father about medical appointments, which he may attend if he so chooses, thus giving Father an opportunity to participate in the children‘s medical care.
{¶ 42} In light of all of the foregoing, we find that the trial court did not abuse its discretion in designating Father as the residential parent and legal custodian of the children and in granting Mother sole authority to make all non-emergency medical decisions regarding the parties’ children.
{¶ 43} Father‘s first assignment of error and Mother‘s first cross-assignment of error are overruled.
{¶ 44} Father‘s Assignment of Error No. 2:
{¶ 45} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN THE WAY THAT IT DEVISED THE VISITATION SCHEDULE.
{¶ 46} Father argues the trial court abused its discretion in granting equal parenting
{¶ 47} A trial court has broad discretion in deciding visitation issues, and its decision will not be reversed on appeal absent an abuse of discretion. Bristow v. Bristow, 12th Dist. Butler No. CA2009-05-139, 2010-Ohio-3469, ¶ 18. The court‘s primary consideration should always be the best interest of the child. Shafor v. Shafor, 12th Dist. Warren No. CA2008-01-015, 2009-Ohio-191, ¶ 9. “Whenever possible,” the order or decree establishing a specific parenting-time schedule “shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child.”
{¶ 48} In establishing a specific parenting-time schedule, a trial court is required to consider the factors set forth in
{¶ 49} Upon a thorough review of the record, we find the trial court did not abuse its
{¶ 50} As stated above, pursuant to
{¶ 51} Indeed, the record shows that at the close of the hearing, the trial court stated its firm intention to grant the parties equal parenting time. Neither party objected. Subsequently, the trial court addressed the issue of the parenting time schedule as follows:
I think the issue for you guys is, is how you want to do it. I can limit the exchanges to twice a week by dad on Monday and Tuesday, Mom on Wednesday and Thursday and then you alternate the weekends but if I [do] that you‘re going to not see the kids for up to five days uh . . . when it is not your weekend.
* * *
The flip side is, is I can do a two, two, three, two, two, three uh . . . alternating schedule so that you got Monday, Tuesday, Tuesday, Wednesday . . . you got the weekend then * * * you just flip it. Monday, Tuesday, Tuesday, Wednesday and the other one‘s got the weekend and then you‘re not seeing the kids for three days so, Ms. Carr, * * * which do you want to do? There is no way else to do it because I‘m going to give you equal parenting time so there is no other ways to do it so you‘re either going to limit the exchanges or you‘re not going to see the kids, potentially, for five days[.]
{¶ 52} The trial court then asked both parties, “what is your preference?” Both parties unequivocally replied they could not go five days without seeing their children. Thus, when given the choice between two possible parenting-time schedules, both parties explicitly chose the 2-2-3 alternating schedule. Given Father‘s clear preference at the hearing and his failure to seek a parenting-time schedule providing for less frequent exchanges and contact with Mother, he cannot now be heard to complain. That the trial court could have fashioned a
{¶ 53} Father also laments the trial court‘s failure to set a parenting-time schedule, such as the basic parenting-time schedule, for when the children will attend school. Father asserts that the current 2-2-3 schedule “will make it impossible for the children to attend school from [his] home,” because the parties live in different school districts, it takes Mother one hour to drive the children to the exchange spot, and Mother intends to reside in Northern Kentucky.
{¶ 54} At the time of the hearing, the children were 32 months old and 15 months old respectively, and thus not of school age. We find the trial court did not abuse its discretion when it failed to set a parenting-time schedule to meet unknown future circumstances. In addition, this issue is not ripe for review. In general, a claim that rests upon future events that may not occur at all, or may not occur as anticipated, is not considered ripe for review. Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-4998, ¶ 25. The issue of whether the current 2-2-3 schedule or the basic parenting-time schedule will be appropriate when the children attend school does not present a ripe issue for this court to review as the circumstances of the parties may change in the interim.
{¶ 55} The trial court therefore did not abuse its discretion in granting the parties equal parenting time in a 2-2-3-day alternating schedule. Father‘s second assignment of error is overruled.
{¶ 56} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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