Halliday v. HallidayHalliday v. Halliday
JUDGMENT: APPEAL AFFIRMED; CROSS-APPEAL DISMISSED
ATTORNEY FOR APPELLANT/CROSS-APPELLEE
Vincent A. Stafford
Stafford & Stafford Co., LPA
The Stafford Building
2105 Ontario Street
Cleveland, OH 44115
ATTORNEY FOR APPELLEE/CROSS-APPELANT
Brent L. English
Law Offices of Brent L. English
M.K. Ferguson Plaza, Suite 470
1500 West Third Street
Cleveland, OH 44113-1422
SUCCESSOR GUARDIAN AD LITEM
Steven E. Wolkin
820 W. Superior Avenue, Suite 510
Cleveland, OH 44113-1384
FORMER GUARDIAN AD LITEM AND APPELLANT IN APPEAL NO. 92748
Cheryl A. Lukacs
The Lukacs Law Firm, LLC
P.O. Box 609
North Olmsted, OH 44070-0609
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant/cross-appellee, Natalie Prodan Halliday, appeals the judgment of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations, granting appellee/cross-appellant, Brian Halliday, shared parenting of their son. For the reasons stated below, we affirm.
{¶ 2} We first address a procedural issue. The docket reflects that Brian Halliday filed a notice of cross-appeal on October 14, 2008. However, in his appellate brief, he has failed to raise an assignment of error on cross-appeal. Accordingly, we dismiss the cross-appeal,
{¶ 3} Appellant and appellee were married on August 31, 2001. Appellant gave birth to their first child on March 26, 2002. Unfortunately, their son suffered from a congenital birth defect and died three weeks after birth. Despite counseling, the marriage did not survive the strain of this loss. Appellant filed for divorce in March 2003 and moved in with her parents the following month. She was pregnant with their second child at the time. On August 28, 2003, appellant gave birth to the couple‘s son.
{¶ 4} From his son‘s birth, appellee sought equal parenting time with appellant. He filed his first shared parenting plan on June 6, 2006.
{¶ 5} The trial on the issue of the allocation of parental rights and responsibilities continued with 37 days of trial over an 18-month time period. In addition to the parties’ testimony, the court heard the testimony of both sets of grandparents, a psychologist, the child‘s pediatrician, the guardian ad litem, and appellant‘s friends.
{¶ 6} On September 12, 2008, the trial court issued a final judgment of divorce that incorporated the September 27, 2006 separation agreement, appellee‘s July 24, 2008 Second Amended Shared Parenting Plan, and interim decisions of the court dated May 6, 2008, August 6, 2008, and August 11, 2008. Although captioned as a “final judgment,” the court indicated that this was not a final order because the issues of child support and financial responsibility for the child‘s health care remained to be determined. Shortly thereafter, the court issued a nunc pro tunc order that indicated the
{¶ 7} On September 23, 2008, appellant filed her appeal of the final judgment of divorce. However, as this court noted in an earlier appeal in this case, because issues regarding child support and the allocation of the guardian ad litem fees remained undecided, the trial court‘s September 12, 2008 final entry of divorce and the orders incorporated therein were not final and appealable. See Halliday v. Halliday, 8th Dist. No. 92748, 2009-Ohio-5380. Accordingly, appellant‘s appeal of the shared parenting plan was premature.
{¶ 8} On November 12, 2008, the court issued judgment on the issues of child support and health related costs for the child. On January 5, 2009, the court issued its ruling on the allocation of guardian ad litem fees.
{¶ 9} Subsequent to trial, appellee filed a timely motion for findings of fact and conclusions of law under
{¶ 10} On appeal, appellant assigns the following four errors for review.
{¶ 11} “I. The Trial Court‘s Decision Is Against The Manifest Weight Of The Evidence Presented At The Trial Of This Matter, As The Weight Of The Evidence Clearly Mandates Judgment In Favor Of The Appellant, Natalie Prodan Halliday, And Denial Of Shared Parenting To The Appellee.”
{¶ 12} “II. The Trial Court Erred And/Or Abused Its Discretion And Acted Contrary To
{¶ 13} “III. The Trial Court Erred And/Or Abused Its Discretion By Awarding Shared Parenting In This Matter.”
{¶ 14} “IV. The Trial Court Erred And Abused Its Discretion By Creating Its Own Shared Parenting Plan In This Matter.”
{¶ 16}
{¶ 17} In the instant case, we find that appellee is correct and this court would be justified in disregarding all of appellant‘s assignments of error. Appellant has failed to separately argue each assigned error, presenting instead a single argument generally encompassing the assignments of error. Additionally, while appellant makes numerous references to evidence allegedly presented at trial, she makes no reference to where, in the more
{¶ 18} The above stated justification notwithstanding, we are conscious of the maxim that “[f]airness and justice are best served when a court disposes of a case on the merits.” Dehart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 193, 431 N.E.2d 644. Therefore, in the interests of fairness and finality, we will not disregard all of appellant‘s assignments of error. We will, however, disregard the first assignment as appellant offers no argument addressed to this issue. We will exercise our discretion and address the remaining three assignments of error together to determine the central issue of whether the trial court erred in granting shared parenting.
{¶ 19} When reviewing a ruling pertaining to the allocation of parental rights, the trial court is to be afforded great deference. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846. “The discretion which a trial court
{¶ 20} An appellate court must uphold the trial court‘s allocation of parental rights and responsibilities absent an abuse of discretion, which implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Mason v. Mason, 8th Dist. No. 80368, 2002-Ohio-6042, citing Masters v. Masters (1994), 69 Ohio St.3d 83, 630 N.E.2d 665. Accordingly, absent a clear showing of an abuse of discretion, we will not reverse the trial court‘s judgment.
{¶ 21}
{¶ 22} In the present case, only appellee filed a proposed shared parenting plan, therefore
{¶ 23} If, however, the court determines that no filed plan is in the best interest of the child, the court may state its objections and then order the parents to submit appropriate changes to their plan, or select one plan and order each parent to submit appropriate changes to the selected plan to meet the court‘s objections. If changes are submitted to meet the court‘s objections, and if any of the filed plans with the changes are in the best interest of the child, the court may approve the plan with the changes.
{¶ 25} Regarding the factors a court must consider in determining the best interest of the child in the context of parental rights and responsibilities allocation,
{¶ 26} “(1) In determining the best interest of a child * * * on an original decree allocating parental rights and responsibilities for the care of children * * *, the court shall consider all relevant factors, including, but not limited to:
{¶ 28} “(b) If the court has interviewed the child * * * 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;
{¶ 29} “(c) The child‘s interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child‘s best interest;
{¶ 30} “(d) The child‘s adjustment to his home, school, and community;
{¶ 31} “(e) The mental and physical health of all persons involved in the situation;
{¶ 32} “(f) The parent more likely to honor and facilitate visitation and companionship rights approved by the court;
{¶ 33} “(g) Whether either parent has failed to make all child support payments * * *;
{¶ 34} “(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 * * *;
{¶ 35} “(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation in accordance with an order of the court;
{¶ 37} “(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, * * * and all of the following factors:
{¶ 38} “(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
{¶ 39} “(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
{¶ 40} “(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence * * *;
{¶ 41} “(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
{¶ 42} “(e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.”
{¶ 43} Here, the record reflects that the court reviewed appellant‘s repeated requests to have the court designate her solely as residential parent and legal custodian with authority over all decisions related to their son without input or agreement from appellee. The court recognized that while appellant‘s proposal had certain advantages, being that she lived with her
{¶ 44} The record reflects that in the early part of the case, Dr. Neuhaus, a clinical psychologist, evaluated both parties and interviewed their son, then 13-months-old. After meeting with appellant nine times and with appellee eight times, Dr. Neuhaus found that the parties have the ability to make reasonable decisions about their son and recommended shared parenting be implemented to give each parent an opportunity for equal access to the child. At trial two years later, Dr. Neuhaus refused to confirm his
{¶ 45} The guardian ad litem, appointed by the court in June 2005, issued her first report in July 2006 in which she recommended shared parenting. At trial in 2008, she continued to recommend shared parenting. She stated that despite appellant‘s opposition to sharing decision making with appellee, she found the parties regularly changed parenting time to accommodate appellee‘s job schedule, did not disagree about major medical decisions for their son, and never stopped communicating with one another. She recommended that the court adopt the plan proposed by appellee.
{¶ 46} In its 43-page findings, sealed by the court to protect the child‘s best interest, the trial court recounted in great detail the evidence presented by both parties during 37 days of trial. The court related that evidence to each of the above stated statutory factors and made specific findings. Without recounting each specific finding, we note that the court found that both parties live within a 15 minute drive of each other and, that “both [parent‘s] residences are comfortable and safe for [their son].” The court explained that the child‘s relationship with appellee had progressed over time from supervised visitation from birth until age seven months, to unsupervised visitation and overnights up to age four, and finally to midweek stays with alternating weekends and specific vacation time. The court found, “In his
{¶ 47} We are not persuaded by any of the numerous examples of the court‘s alleged abuse of discretion cited by appellant. We refuse to substitute our judgment for that of the trial court on issues such as weekend and vacation schedules or whether missed parenting time should be rescheduled or forfeited. Moreover, appellant‘s claim that the trial court ordered “the withholding of food” from the child is nothing more than hyperbole. The contested clause merely provides that on days when appellee is to pick the child up at 5:30 p.m., he will feed him dinner. Appellant is instructed not to feed him dinner, but may give him a light snack if he is hungry. We do not find that this arrangement “withholds” food from the child.
{¶ 48} It is clear from the record that appellant desires sole legal custody of her son and objects to any shared parenting plan. However, the record demonstrates that the trial court fully complied with the provisions of
{¶ 49} The appeal is affirmed; the cross-appeal is dismissed.
It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas — Domestic Relations Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR