2005 Ohio 1155 | Ohio Ct. App. | 2005
{¶ 2} In March 2003, plaintiff and defendant were divorced and the parties were granted sharing parenting of their minor child, a daughter. Pursuant to the trial court's shared-parenting decree, plaintiff was designated the residential parent for school-lacement purposes.
{¶ 3} On June 13, 2003, plaintiff filed a relocation notice with the trial court. Approximately four days later, plaintiff, along with the parties' daughter, moved from Ohio to West Virginia, where her fiancé resided and where the parties' parents also resided. Prior to moving, plaintiff did not inform defendant of her intention to relocate the parties' daughter to West Virginia.
{¶ 4} Thereafter, on June 18, 2003, upon defendant's motion, defendant was granted an ex parte restraining order that prevented plaintiff from permanently removing the parties' daughter from Franklin County. Plaintiff objected to the ex parte restraining order, requested a hearing, and voluntarily submitted to the trial court's jurisdiction.
{¶ 5} On July 9, 2003, defendant moved to reallocate parental rights and responsibilities and, alternatively, defendant moved to terminate the shared-parenting decree. In August 2003, after defendant filed an ex parte temporary emergency custody motion, the trial court modified the shared-parenting decree, wherein, among other things, the trial court designated defendant as the residential parent for school-placement purposes. On November 10, 2003, plaintiff moved to reallocate parental rights and, alternatively, to terminate the shared-parenting decree.
{¶ 6} In November 2003, the trial court held a hearing to consider the outstanding motions before it. On February 26, 2004, the trial court rendered a decision, wherein it granted in part defendant's motion for reallocation of parental rights, terminated the parties' shared-parenting plan, denied an outstanding contempt motion against plaintiff, and denied plaintiff's motion for reallocation of parental rights.
{¶ 7} From the trial court's decision, plaintiff appealed. Because the trial court had not journalized findings of fact and conclusions of law, this court concluded that plaintiff's appeal was premature and sua sponte dismissed the appeal.1
{¶ 8} On May 7, 2004, the trial court issued findings of fact and conclusions of law. Thereafter, plaintiff filed an "amended notice of appeal" and defendant filed a cross-appeal.
{¶ 9} On appeal, plaintiff assigns the following errors:
I. The Trial Court abused its discretion and erred as a matter of law when it found, against the manifest weight of the evidence, that the child's relocation to West Virginia was a change in circumstance and found in favor of Defendant-Father when Defendant-Father did not meet his burden of proof.
II. The Trial Court abused its discretion when it determined a modification of custody was in the child's best interest without reviewing all the required factors.
III. The Trial Court abused its discretion when it terminated shared parenting between the parties based on geographic proximity and the fact that Mother had moved out-of-state.
IV. The Trial Court abused its discretion and erred as a matter of law when it modified custody without identifying any advantages to the child which would result from the modification.
V. The Trial Court abused its discretion and erred as a matter of law when it determined that a relocation to West Virginia was not in the best interest of the child. The question before the Trial Court was whether a relocation to Pickerington, Ohio, was in the child's best interest.
{¶ 10} On cross-appeal, defendant assigns the following errors:
[1.] The trial court erred by ordering the mother to pay child support "according to the guidelines" without completing a worksheet and without ordering the mother to pay a specific amount per month.
[2.] The trial court erred by awarding the federal child tax exemption to the mother, where the evidence did not support the court's judgment, and the court's order contained no rationale supporting the judgment.
[3.] The trial court erred by failing to hold the mother in contempt of the trial court's prior orders, where the mother moved out of state without notice to the father, and where the mother deliberately and intentionally denied father parenting time in violation of the court's shared parenting plan.
{¶ 11} In Miller v. Miller (1988),
While App.R. 12 grants an appellate court the power to reverse trial court judgments and enter those judgments that the court should have rendered, * * * it is inappropriate in most cases for a court of appeals to independently weigh the evidence and grant a change in custody. The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. * * * In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court's findings were indeed correct.
Id. at 74.
{¶ 12} The Miller court further instructed:
While a trial court's discretion in a custody modification proceeding is broad, it is not absolute, and must be guided by the language set forth in R.C.
Id. See, also, Blakemore v. Blakemore (1983),
{¶ 13} Furthermore, "[w]here an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court." Bechtol v. Bechtol (1990),
{¶ 14} Accordingly, when reviewing the trial court's custody determination, our inquiry is guided by the presumption that the trial court's findings were indeed correct. Miller, at 74. Absent a showing of an abuse of discretion, the trial court's determination in this custody proceeding is not subject to reversal. Id. Furthermore, if the trial court's custody award is supported by a substantial amount of credible and competent evidence, the trial court's custody award will not be reversed as being against the manifest weight of the evidence. Bechtol, at syllabus.
{¶ 15} Because plaintiff's five assignments of error interrelate, we shall jointly address them.
{¶ 16} Underlying plaintiff's first, fourth, and fifth assignments of error is a contention that the trial court's judgment failed to comport with the requirements of R.C.
{¶ 17} R.C.
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of 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: * * *
{¶ 18} Additionally, plaintiff relies upon Clark v. Smith (1998),
{¶ 19} For his part, defendant asserts plaintiff's reliance upon R.C.
{¶ 20} R.C.
In addition to modification authorized under division (E)(1) of this section:
* * *
(c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parent or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
{¶ 21} Here, by terminating the parties' shared-parenting decree, the trial court arguably also modified the shared-parenting decree because it made a basic or fundamental change to the parties' shared-parenting agreement.3 Therefore, a plausible argument can be made that R.C.
{¶ 22} Indeed, the Third District Court of Appeals has determined that R.C.
{¶ 23} Other appellate districts have found differently. Goetze v.Goetze (Mar. 27, 1998), Montgomery App. No. 16491; Deimling v. Messer (Mar. 16, 1998), Clermont App. No. CA97-07-070; Quesenberry v.Quesenberry (Nov. 6, 1998), Champaign App. No. 98 CA 1; Brannon v.Brannon (June 27, 1997), Trumbull App. No. 96-T-5572; Dobran v. Dobran (Sept. 1, 1999), Mahoning App. No. 97 CA 166.
{¶ 24} In Dobran, supra, the Seventh District Court of Appeals reasoned:
* * * The clear wording of the applicable statutes reveals that different standards have been established for the termination as compared to the modification of a shared parenting plan. R.C.
R.C.
See, also, Myers v. Myers,
{¶ 25} We agree with Dobran's reasoning that, based upon the plain statutory language of R.C.
{¶ 26} Here, based upon the parties' motions in the alternative, rather than modifying the parties' shared-parenting decree, the trial court terminated the prior shared-parenting decree. Because the trial court terminated the prior shared-parenting decree, we therefore conclude that R.C.
{¶ 27} Pursuant to R.C.
{¶ 28} R.C.
In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of the children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the children's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section 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;
(c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(d) The child's adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate courtapproved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(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; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{¶ 29} Additionally, R.C.
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, the factors enumerated in section
(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
(e) The recommendations of the guardian ad litem of the child, if the child has a guardian ad litem.
See, also, R.C.
{¶ 30} Here, unlike the divorce proceedings, the trial court did not interview the parties' child in chambers to discuss the child's wishes and concerns as to the reallocation of parental rights and responsibilities. In its findings of fact, the trial court found that both parties "are loving and responsible individuals devoted to their child"4 and the significant others with whom the parties had become involved "are just as loving and dedicated to the best interest of [the parties' child] as are the parties."5 The trial court further found that "[t]he child's interaction with parents * * * extended family and others is by accounts excellent."6 Additionally, the trial court found that "[t]he child's adjustment to community, home and school in both places appears to be equal under the circumstances."7
{¶ 31} The trial court also found that there was no indication of abuse or potential for abuse, the mental and physical health of all involved persons were not of significant concern, neither parent willingly denied the other parent visitation, and neither party failed to provide adequate support or had been convicted of any offense set forth in R.C.
{¶ 32} The trial court did find, however, that "[t]he relocation would significantly alter the parties [sic] shared parenting plan with regard to dates and times the Defendant would be able to be with [the parties' child]. * * * The relocation makes mid-week visitation unreasonable. The geography of the situation makes travel time significant for both parents and [the parties' child]"9 and "[t]he geographic proximity of the parties is not conducive to a shared parenting plan."10
{¶ 33} The trial court further found that "given the nature of the actions of these parties the Defendant is more likely to support the involvement of the Plaintiff than the Plaintiff to support the involvement of the Defendant"11 and "[f]rom a review of all the testimony, the exhibits and the arguments of counsel it appears that the Defendant is more likely to facilitate visitation and companionship with [the parties' child] than the Plaintiff."12
{¶ 34} Additionally, the trial court concluded that the relocation of the parties' child to West Virginia constituted a "change of circumstance."13 However, this finding of a change in circumstance was unnecessary because termination of a shared-parenting decree pursuant to R.C.
{¶ 35} The trial court therefore concluded that under the facts and circumstances of the case, a shared-parenting plan was not in the best interest of the parties' minor child. Accordingly, the trial court dissolved the shared-parenting plan and designated defendant as the residential parent and legal custodian.
{¶ 36} Notwithstanding the trial court's findings and conclusions, plaintiff asserts the trial court committed reversible error because it failed to completely address factors enumerated in R.C.
{¶ 37} Accordingly, plaintiff's contention that the trial court committed reversible error because it failed to it failed to completely address factors enumerated in R.C.
{¶ 38} Plaintiff also asserts that the trial court abused its discretion when it terminated the shared-parenting decree based upon geographic proximity and based upon plaintiff's relocation to West Virginia. R.C.
{¶ 39} In sum, we find plaintiff's five assignments of error are unconvincing. Under the plain statutory language of R.C.
{¶ 40} Accordingly, plaintiff's five assignments of error are overruled.
{¶ 41} We next consider defendant's three assignments of error on cross-appeal.
{¶ 42} Defendant's first assignment of error on cross-appeal asserts the trial court erred when it ordered plaintiff to pay child support "according to the guidelines" without completing a worksheet and without ordering plaintiff to pay a specific amount per month. Plaintiff contends defendant's first assignment of error on cross-appeal is moot because the trial court corrected its oversight through its filing of a "supplemental finding of fact and conclusions of law" that was filed subsequent to plaintiff's appeal and defendant's cross-appeal.
{¶ 43} An appellate court reviews child-support matters under an abuse of discretion standard. Pauly v. Pauly (1997),
{¶ 44} R.C.
In any action in which a court child support order is issued or modified, in any other proceeding in which the court determines the amount of child support that will be ordered to be paid pursuant to a child support order, * * * the court * * * shall calculate the amount of the obligor's child support obligation in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of section
{¶ 45} Furthermore, in Marker v. Grimm (1992),
1. A child support computation worksheet, required to be used by a trial court in calculating the amount of an obligor's child support obligation in accordance with R.C.
2. The terms of R.C.
Id. at paragraphs one and two of the syllabus.
{¶ 46} Here, absent within the record is a child-support computation worksheet and calculation of plaintiff's monthly child-support obligation by the trial court. Accordingly, we conclude the trial court failed to comply with R.C.
{¶ 47} Furthermore, plaintiff's contention of mootness is unconvincing. Here, the trial court's "supplemental finding of fact and conclusions of law" is absent from the record. "A reviewing court cannot add matter to the record before it, which was not part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." State v. Ishmail (1978),
{¶ 48} Accordingly, defendant's first assignment of error on cross-appeal is sustained.
{¶ 49} Defendant's second assignment of error on cross-appeal asserts the trial court erred by awarding the federal child tax exemption to plaintiff because the evidence does not support the trial court's determination and there is no supporting rationale for the trial court's determination.
{¶ 50} Ohio law provides the manner in which a state court may allocate a dependent child exemption for income tax purposes. Will v.Will (1996),
{¶ 51} R.C.
Whenever a court issues, or whenever it modifies, reviews, or otherwise reconsiders a court child support order, it shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes as set forth in section 151 of the "Internal Revenue Code of 1986,"
{¶ 52} Here, without stating the basis for its determination, the trial court designated plaintiff, the nonresidential parent, as the parent who could claim the parties' minor daughter as a dependent for federal income tax purposes. Pursuant to R.C.
{¶ 53} Absent a determination that the designation of plaintiff as the parent who could claim the parties' minor daughter as a dependent for federal income tax purposes was in the best interest of the parties' child, we conclude that the trial court's determination did not comport with the requirements of R.C.
{¶ 54} Accordingly, for the foregoing reasons, we sustain defendant's second assignment of error on cross-appeal.
{¶ 55} Defendant's third assignment of error on cross-appeal asserts the trial court erred by not finding plaintiff in contempt of court.
{¶ 56} "Contempt is a disregard of, or disobedience to, an order or command of judicial authority." Carroll v. Detty (1996),
{¶ 57} Here, we conclude that the remedy sought by defendant's motion for contempt was for the benefit of defendant and remedial in nature, and thus akin to civil contempt. Therefore, the quantum of evidence required was clear and convincing evidence. Carroll, at 711.
{¶ 58} In its findings of fact, the trial court found that "[w]hile the actions of the Plaintiff do not raise themselves to the level of contempt they do indicate a lack of commitment to keeping the Defendant involved with [the parties' daughter]."17 Based upon our review of the record, we cannot conclude that the trial court acted unreasonably, arbitrarily, or unconscionably by not finding actionable contempt. Accordingly, defendant's third assignment of error on cross-appeal is unpersuasive.
{¶ 59} Defendant's third assignment of error on cross-appeal is therefore overruled.
{¶ 60} For the foregoing reasons, plaintiff's five assignments of error are overruled, defendant's third assignment of error on cross-appeal is overruled, and defendant's first and second assignments of error on cross-appeal are sustained. The judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed in part and reversed in part, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
Brown, P.J., and Lazarus, J., concur.
