Gunderman v. GundermanGunderman v. Gunderman
Dated: August 3, 2009
BELFANCE, Judge.
{¶1} DeAnne Hassell Gunderman and Raymond Gunderman are divorced and have one child together. Raymond Gunderman moved for a modification of the shared parenting plan seeking an enlargement of parenting time. After a hearing on the matter, the magistrate issued a decision granting the motion. DeAnne Hassell Gunderman filed objections to the magistrate‘s decision, and filed an appeal to this Court when the trial court overruled her objections. We reverse and remand because we conclude that the trial court applied the incorrect statute when it reviewed the magistrate‘s decision.
FACTS
{¶2} DeAnne Hassell Gunderman (“Mother“) and Raymond Gunderman (“Father“) were married in 2003. They have one child, born January 6, 2004. On May 16, 2005, the Medina County Court of Common Pleas, Division of Domestic Relations, entered a final decree of divorce. Pursuant to the decree, both parents were designated as residential parents and legal
{¶3} At the time of the parties’ divorce, Father worked a full-time job on third-shift, six to seven days a week, which included mandatory overtime. Father subsequently quit his job to enroll in college full-time to pursue a degree. Due to his change in schedule and his desire to spend more time with his child, Father filed a motion to modify the shared parenting plan.1 At the time of the magistrate‘s hearing, Father attended classes at the Lorain County Community College every Tuesday and Thursday from 8:00 a.m. until 6 or 7:00 p.m., and every Wednesday for about three hours in the afternoon.
{¶4} At the hearing before the magistrate, Father and his mother testified in support of his request for modification of the shared parenting plan. Mother offered her own testimony and that of her mother in opposition to Father‘s motion. The magistrate issued a decision granting Father‘s motion. In so doing, the magistrate determined that a change in circumstances occurred since the entry of the prior decree, and that the modification was in the best interest of the child. As a result of the increase, Father would be deemed the residential parent and legal custodian of the child 30% of the time as opposed to 19% of the time. Mother would be deemed the
{¶5} Mother filed objections to the magistrate‘s decision. She argued that the magistrate incorrectly determined that a change in circumstances occurred that warranted modification pursuant to
{¶6} Mother has appealed the trial court‘s ruling and now argues that: (1) the trial court erred as a matter of law in basing its decision on
STANDARD OF REVIEW
{¶7} This Court generally reviews a trial court‘s action with respect to a magistrate‘s decision for an abuse of discretion. See Fields v. Cloyd, 9th Dist. No. 24150, 2008-Ohio-5232, at ¶9. In so doing, we review the trial court‘s action with reference to the nature of the underlying matter. Because we must consider whether the trial court correctly interpreted and applied a statute, Mother‘s appeal presents a question of law. Accordingly, we apply a de novo standard of review, giving no deference to the trial court‘s determination. Porter v. Porter, 9th Dist. No. 21040, 2002-Ohio-6038, ¶5.
LEGAL FRAMEWORK
{¶8} In her first assignment of error, Mother contends that the trial court should have evaluated Father‘s motion to modify utilizing
{¶9}
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of the children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the
child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies: (i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
Accordingly, before a modification can be made pursuant to
{¶10}
The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children.
{¶11} Division (E)(2)(b) does not require that the threshold determination of a change in circumstances be met. Rather, the trial court need only find that the modification of a term in the shared parenting plan is in the best interest of the child. Id.
{¶12} Recently, this Court has issued opinions reviewing modifications to shared parenting plans and has employed both division (E)(1)(a) and (E)(2)(b) in considering post-
{¶13} In Hunter v. Bachman, 9th Dist. No. 04CA008421, 2004-Ohio-5172, at ¶12, this Court upheld the trial court‘s application of
ANALYSIS OF FISHER
{¶14} In Fisher, the Court considered the following issue:
Is a change in the designation of residential parent and legal custodian of children a ‘term’ of a court approved shared parenting decree, allowing the designation to be modified solely on a finding that the modification is in the best interest of the children pursuant to
R.C. 3109.04(E)(2)(b) and without a determination that a ‘change in circumstances’ has occurred pursuant toR.C. 3109.04(E)(1)(a) ? Id. at ¶1.
The Fisher court determined that “[t]he answer to [that] question is ‘no.‘” Id.
{¶15} The Fisher Court initially observed that there is no dispute that “a court may modify parental rights and responsibilities pursuant to
{¶17} The Fisher Court further explained that “[a] court also allocates parental rights and responsibilities when it issues a shared parenting order.” Id. at ¶24. The court may allocate parental rights and responsibilities to both parents requiring them to share in all or some of the aspects of the physical and legal care of the child in accordance with the approved plan for shared parenting. Id.
{¶18} Because
{¶19} Conversely, while the designation of residential parent and legal custodian can be modified under
{¶20} The Fisher Court further observed that
“[i]t is a well-settled rule of statutory interpretation that statutory provisions be construed together and the Revised Code be read as an interrelated body of law. To read both sections, with different standards, to apply to a court‘s analysis modifying the decree modifying a child‘s residential parent and legal custodian would create inconsistency in the statute. Two different standards cannot be applied to the same situation.” (Internal quotations and citations omitted.) Id. at ¶32.
It noted that the requirement that a “change” must have occurred in the life of the child or parent before the court will consider whether the current designation should be altered is a “high” standard. Id. at ¶33. “Conversely,
“The clear intent of [
R.C. 3109.04(E)(1)(a) ] is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a ‘better’ environment. The statute is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.” Id. at ¶34, quoting Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416.
{¶21} Further, the Court found that the legislation comports with the “rationale regarding stability in the lives of children as a desirable component of their emotional and physical development.” Id. at ¶35, quoting In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, at ¶28. By contrast, the standard for modification under
APPLICATION OF FISHER TO THIS CASE
{¶22} Appellee suggests that Fisher is distinguishable from the instant matter because unlike Fisher, Father did not seek to alter the status of Mother as a residential parent and legal custodian, but only the parenting time under the plan. Although a request to modify the amount of parenting time under a shared parenting order or decree could appear to be merely a request to modify a term of a shared parenting plan, Fisher negates that conclusion because under Fisher, a request for modification of parenting time is a request for modification of the allocation of parental rights and responsibilities. See id. at ¶26.
{¶24} This conclusion is in keeping with the policy concerns expressed in Fisher. Parenting time encompasses the physical care and control of the child and is central to the allocation of parental rights and responsibilities. A change in parenting time has a fundamental impact on the child‘s life and goes to the heart of the continuity, stability and security of the child. Without a requirement of a threshold determination of a change in circumstances, parents could easily and frequently request modifications that would significantly change the daily life of the child, potentially subjecting children to continual litigation and manipulation by the parents, thus thwarting the legislative intent to promote stability in the lives of children. It is for this reason that in order to curtail the constant tug of war for primary physical control of the child, the legislature requires the high standard of a change in circumstances for modification of the allocation of parental rights and responsibilities. See Fisher at ¶33.
{¶25} Because the trial court did not apply the appropriate legal standard, we sustain Mother‘s first assignment of error, reverse the decision of the trial court, and remand the matter to the trial court for consideration of the magistrate‘s decision pursuant to
{¶26} The judgment of the Medina County Court of Common Pleas, Division of Domestic Relations is reversed and remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
RICHARD A. RABB, Attorney at Law, for Appellant.
L. RAY JONES, Attorney at Law, for Appellee.