NATHAN RIDDLE, PLAINTIFF-APPELLEE, v. NICOLE RIDDLE, DEFENDANT-APPELLANT.
CASE NO. 9-19-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
October 28, 2019
2019-Ohio-4405
WILLAMOWSKI, J.
Appeal from Marion County Common Pleas Court Family Division, Trial Court No. 18-DR-0027. Judgment Affirmed in Part, Reversed in Part, Cause Remanded.
Joel M. Spitzer for Appellant
Todd A. Anderson for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant Nicole Riddle (“Nicole“) appeals the judgment of the Family Division of the Marion County Court of Common Pleas, raising various challenges to the shared parenting plan ordered by the trial court. For the reasons set forth below, the judgment of the trial court is affirmed in part and reversed in part.
Facts and Procedural History
{¶2} Nicole and Nathan Riddle (“Nathan“) were married on October 19, 2005. Tr. 5. Nicole and Nathan lived in Marion County for the first four years of their marriage. Tr. 7. They left Marion County to live in Delaware County and then Crawford County before returning to Marion County in 2010. Tr. 7. They both lived in Marion County continuously until after Nathan and Nicole separated in 2017. Tr. 8. During this time, Nathan operated a barbershop in Marion County, and Nicole, who worked in the mental health field, operated a practice in Marion County. Tr. 10-11.
{¶3} In between 2010 and 2017, four children were born as the issue of this marriage. Tr. 5. Doc. 53. In between 2016 and 2017, Nathan and Nicole‘s oldest two children began attending Marion City Schools. Tr. 13. In October of 2017, Nicole removed her children from the school system because she felt that God had called her to homeschool them. Tr. 13, 15. Nicole testified that she and Nathan
{¶4} On December 31, 2017, Nathan and Nicole separated. Tr. 91. Nathan had already paid for the rent on their house in Marion County for January. Tr. 153. On January 5, 2018, Nicole moved to her mother‘s house in Crawford County and took the four children with her. Tr. 4. Nathan remained in Marion County. Nathan and Nicole worked out an arrangement in which Nathan had the children with him on Tuesday nights, Thursday nights, and weekends. Tr. 27. Nicole testified that she attempted to reconcile with Nathan and that she believed that he was a good father to his children. Tr. 17-18.
{¶5} On February 12, 2018, Nathan filed for a divorce. Doc. 1. At this time, all four of Nathan and Nicole‘s children were minors. Doc. 1. After February 12, 2018, Nicole stopped allowing Nathan visitation with the children at his apartment as had been practiced under their prior arrangement. Tr. 31. She only allowed him to see the children under her supervision at her mother‘s house in Crawford County. Tr. 31. Nicole testified that these actions were not in response to Nathan filing for a divorce. Tr. 30.
{¶6} In February of 2018, Nicole stopped homeschooling and enrolled her children into a public school system in Crawford County. Tr. 13, 35, 294. She enrolled the children in the school system the day after she consulted with her divorce attorney. Tr. 35. As a child, Nicole had been enrolled in this same school
{¶7} On September 10, 2018, Nathan filed a proposed shared parenting plan with the trial court. Doc. 38. On October 3, 2018, the trial court held the final hearing in this divorce proceeding. Tr. 50. After hearing the testimony of Nathan and Nicole, the trial court issued a shared parenting order on January 4, 2019. Doc. 53. Nicole filed her notice of appeal on January 28, 2019. Doc. 60. On appeal, she raises the following assignments of error:
First Assignment of Error
The trial court erred and abused its discretion in not making a specific finding that its allocation of parental rights and responsibilities were in the best interest of the minor children and in not making a specific finding that the adopted shared parenting plan was in the best interest of the minor children pursuant to
Rev. C. 3109.04(B)(1) .
Second Assignment of Error
The trial court erred and abused its discretion in adopting the plaintiff‘s September 10, 2018 proposed shared parenting plan without a formal motion from the parties and erred and abused its discretion in adopting plaintiff‘s December 14, 2018 ‘post-trial’ proposed shared parenting plan without a formal motion from the parties pursuant to
Rev. C. 3109.04(D)(1)(a) .
The trial court erred and abused its discretion in not only adopting the proposed shared parenting plan but also not considering the relevant factors in
Rev. C. 3109.04(F)(2) .
Fourth Assignment of Error
The trial court erred and abused discretion in adopting the plaintiff‘s September 10, 2018 proposed shared parenting plan because the September 10, 2018 proposed shared parenting plan was not submitted at a time less than 30 days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children pursuant to
Rev. C. 3109.04(G) and the trial court erred and abused its discretion in adopting the plaintiff‘s December 14, 2018 ‘post-trial’ proposed shared parenting plan because the December 14, 2018 ‘post-trial’ shared parenting plan was not submitted at a time less than 30 days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children and submitted after the evidentiary hearing on the issue of the parental rights and responsibilities for the care of the children pursuant to3109.04(G) .
Fifth Assignment of Error
The trial court erred and abused its discretion in allocating all four of the minor children‘s tax exemptions to the plaintiff.
Sixth Assignment of Error
In support of the initial determination of parental rights and responsibilities for the minor child and pursuant of
Ohio Revised Code 3109.04 , the trial court erred against the weight of the evidence and abused its discretion in determining that the plaintiff-appellee should be granted custody.
The trial court erred and abused is discretion by not making a finding that the advantages of ordering the children back to Marion County outweighed the disadvantages.
For the sake of analytical clarity, we will consider the second assignment of error prior to analyzing the other assignments of error.
Second Assignment of Error
{¶8} Nicole argues that the trial court erred by compelling the parties to submit shared parenting proposals in the absence of a motion from one of the parties that requests shared parenting.
Legal Standard
Upon the filing of a pleading or motion by either parent or both parents, in accordance with division (G) of this section, requesting shared parenting and the filing of a shared parenting plan in accordance with that division, the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this section * * *.
(Emphasis added.)
Legal Analysis
{¶9} The express language of
Now comes the Plaintiff, Nathan Riddle, by and through Counsel, and offers the following Proposed Shared Parenting Plan to the Court for review and approval. The Plaintiff hereby requests this Court to adopt this proposed shared parenting plan as an Order of the Court.
Doc. 38. Thus, Nathan, one of the parties to this action, expressly requested shared parenting in a filing with the trial court. Nicole alleges that the trial court, at a status conference on December 14, 2018, ordered each of the parties to submit proposed shared parenting plans. Appellant‘s Brief, 10. This order was after Nathan requested shared parenting on September 10, 2018. Since Nathan requested a shared parenting plan in compliance with
First Assignment of Error
{¶10} Nicole argues that the trial court failed to make an express finding that the allocation of parental rights was in the best interest of the children.
Legal Standard
{¶11} Because the appellant‘s first and third assignments of error are similar in nature, we will set forth one legal standard here to govern both of these alleged errors.
When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children.
{¶12} In determining whether a shared parenting plan is in the best interest of the children,
{¶13} Further, “[p]ursuant to
{¶14} If a party to the action did not “request findings of fact and conclusions of law under
Legal Analysis
{¶15} We begin our analysis by noting that Nicole did not request findings of fact and conclusions of law from the trial court pursuant to
{¶16} Even if Nicole had filed a
Third Assignment of Error
{¶18} Nicole argues that the trial court, in adopting the contested shared parenting plan, failed to consider the relevant factors listed in
Legal Standard
{¶19} We herein reincorporate the legal standard set forth under the first assignment of error.
Legal Analysis
{¶20} We begin our analysis by noting that Nicole did not request findings of fact or conclusions of law from the trial court pursuant to
{¶21} In this case, the record indicates that the trial court‘s decision to order a shared parenting plan was supported by some competent, credible evidence. The evidence in the record indicates that Nathan and Nicole were able to have a functional visitation arrangement for a time before Nathan filed for a divorce. Tr. 26.
{¶23} Further,
Fourth Assignment of Error
{¶24} Nicole argues that Nathan did not comply with
Legal Standard
{¶25} ”
The plan for shared parenting shall be filed with the petition for dissolution of marriage, if the question of parental rights and responsibilities for the care of the children arises out of an action for dissolution of marriage, or, in other cases, at a time at least thirty days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children.
{¶26} “[T]he requirement in
Instead of creating an inflexible rule requiring all plans to be submitted 30 days before trial, a judge has discretion to grant leave to file an untimely plan, as long as due process rights are protected by allowing the opposing party adequate opportunity to address the issue and present relevant evidence at trial.
In re Minnick, 12th Dist. Madison No. CA2003-01-001, 2003-Ohio-4245, ¶ 12.
Legal Analysis
{¶27} Nathan filed a proposed shared parenting plan with the trial court on September 10, 2018. Doc. 38. Since the hearing on the matter of parental rights was held on October 3, 2018, Nathan‘s proposed shared parenting plan was not timely filed with the trial court “at least thirty days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children.”
{¶28} Even if Nicole had objected before the trial court, this argument would still not provide grounds for reversing the trial court‘s decision. Appellate courts across this state have held “that the requirement in
{¶29} Nicole similarly challenges Nathan‘s post-hearing shared parenting proposal as failing to comply with
{¶30} On December 14, 2018, Nathan filed his proposed shared parenting plan. Doc. 51. However, Nicole never filed a proposed shared parenting plan. Thus, the trial court gave Nicole the opportunity to file an alternative shared parenting plan, but she refused this offer. We see no indication in the record that the trial court abused its discretion in this matter. See Clouse, supra, at ¶ 41 (holding “that the trial court did not abuse its discretion under
{¶31} In this case, Nicole was aware that Nathan was seeking shared parenting; had adequate time to respond to his proposed shared parenting plan; had the opportunity to argue against shared parenting at the divorce hearing; and was given the opportunity to file her own shared parenting plan. See Clouse, supra, at ¶ 41. After examining the evidence in the record, we do not find any indication that the trial court abused its discretion in allowing Nathan‘s proposed shared parenting plan to be submitted within thirty days of the hearing. We also do not find any indication that the trial court abused its discretion in allowing both parties to have
Fifth Assignment of Error
{¶32} Nicole argues that the trial court erred in awarding all four of the tax exemptions for the children to Nathan.
Legal Standard
{¶33}
[W]henever a court issues * * * a court child support order * * *, the court 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 * * *. * * * If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children * * *. In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
Legal Analysis
{¶34} In this case, the trial court determined that “[t]he father shall be entitled to claim the minor children on all of his local, state, and federal income taxes for the tax year 2018 and each year thereafter.” Doc. 53. The trial court did not make the express findings as to why it reached this determination. Doc. 53. While the trial court was not required to make express findings to support its decision, the evidence in the record still needs to support its decision. We turn now to determining whether the record supports the trial court‘s decision in this matter.
{¶35} We begin our analysis by noting that neither party asked for this particular arrangement. Nathan requested that he and Nicole each claim two children every year on their taxes. Tr. 212. Nicole, on the other hand, requested that she and Nathan alternate claiming all four children every other year. Tr. 90. Since the parties did not agree, the trial court was required to consider
any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
{¶36} Under the shared parenting plan, the children will spend the same amount of time with each parent. Doc. 53. Nevertheless, considering that Nicole is the only parent eligible for the earned income tax credit, claiming all of the children on Nathan‘s taxes would be less beneficial to the children financially. See Montgomery v. Montgomery, 6th Dist. Huron No. H-06-035, 2007-Ohio-2539, ¶ 28. Further, at the time of this divorce, Nathan and Nicole owed the Internal Revenue Service $29,308.07 in back taxes. Tr. 93. The trial court found that this sum was a marital debt. Doc. 53.
{¶37} On appeal, Nathan argues that the trial court‘s decision should remain undisturbed because Nicole failed to request findings of fact and conclusions of law pursuant to
Sixth Assignment of Error
{¶38} Nicole argues that the trial court made a determination that was against the manifest weight of the evidence by giving Nathan custody of the children.
Legal Standard
{¶39} “When making a determination regarding parental rights, the domestic relations court must follow statutory guidelines.” King v. King, 3d Dist. Union No. 14-11-23, 2012-Ohio-1586, ¶ 8.
(5) Unless the context clearly requires otherwise, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, both parents have “custody of the child” or “care, custody, and control of the child” under the order, to the extent and in the manner specified in the order.
(6) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(7) Unless the context clearly requires otherwise and except as otherwise provided in the order, a designation in the order of a
parent as the residential parent for the purpose of determining the school the child attends * * * does not affect the designation pursuant to division (L)(6) of this section of each parent as the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(Emphasis added.)
{¶40} Appellate courts “review[] a domestic relations court‘s decision regarding parental rights for an abuse of discretion.” King at ¶ 9. “Under the abuse of discretion standard, an appellate court is not to substitute its judgment for the trial court‘s judgment.” Mousa v. Saad, 3d Dist. Marion No. 9-18-12, 2019-Ohio-742, ¶ 29, citing Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.). Thus, a mere error of judgment does not rise to the level of an abuse of discretion. Siferd v. Siferd, 2017-Ohio-8624, 100 N.E.3d 915, ¶ 16 (3d Dist.). “[T]o constitute an abuse of discretion, the trial court‘s decision must be unreasonable, arbitrary, or capricious.” Southern v. Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-1440, ¶ 10.
Legal Analysis
{¶41} In its judgment entry, the trial court ordered a shared parenting arrangement. Doc. 53. Under a shared parenting plan, “both parents have ‘custody of the child[ren] * * *.‘”
{¶42} While Nicole, in her assignment of error, argues against the trial court‘s award of custody to Nathan, she seems to be arguing against the trial court‘s decision to name Nathan the residential parent for school placement purposes.
{¶43} In this case, Nicole and Nathan disagreed strongly on the issue of school placement. Prior to their separation, Nicole took the children out of Marion City Schools because she believed that God had called her to homeschool them. Tr. 13, 150. At trial, Nathan testified that Nicole did this without his approval. Tr. 150. Nicole then left Marion County with her children, moving to her mother‘s house in Crawford County in January of 2018. Tr. 239. Nathan testified that Nicole moved with the children without notifying him prior to leaving. Tr. 154. After moving,
{¶44} At the time of trial, Nathan still lived in Marion County and requested to be named the residential parent for school placement purposes. Doc. 53. He wanted to place the children back into Marion City Schools where they had been enrolled prior to being homeschooled by Nicole in between October of 2017 and February of 2018. Tr. 13, 294. Doc. 53, citing
{¶45} At trial, Nathan and Nicole both testified that the children had connections to the community in Marion County. Tr. 73, 202. See
{¶46} Based on the evidence produced at trial, the trial court found that “[i]t is unknown if the children are adjusting to their new school or involved in activities
{¶47} The evidence produced at trial indicates that Marion City Schools is a place where the children have previously attended school; is located in the same city as the workplaces of both Nicole and Nathan; and is situated in a community in which the children have roots. After reviewing the evidence in the record, we conclude that the trial court did not abuse its discretion in naming Nathan the residential parent for school placement purposes. Thus, Nicole‘s sixth assignment of error is overruled.
Seventh Assignment of Error
{¶48} The appellant asserts that the trial court abused its discretion by failing to make a finding that the advantages of requiring the children to move back to Marion County outweighed the disadvantages of such a move.
{¶49} “[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.” State v. Gideon, 2019-Ohio-2482, 130 N.E.3d 357, ¶ 14 (3d Dist.), quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7. Thus, under
may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under
App.R. 16(A) .
[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.
Legal Analysis
{¶50} Nicole lists a seventh assignment of error in her brief but does not provide a supporting legal argument. The appellant also did not include any citations to legal authorities or references to materials in the record. Since Nicole
Conclusion
{¶51} Having found no error prejudicial to the appellant in the particulars assigned and argued in the first, second, third, fourth, and sixth assignments of error, the judgment of the Family Division of the Marion County Court of Common Pleas is affirmed as to these issues. Having found no error prejudicial to the appellant in the particulars assigned but not argued in the seventh assignment of error, the judgment of the Family Division of the Marion County Court of Common Pleas is affirmed as to this issue. Having found error prejudicial to the appellant in the particulars assigned and argued in the fifth assignment of error, the judgment of the Family Division of the Marion County Court of Common Pleas is reversed as to this issue. This cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part Reversed in Part And Cause Remanded
ZIMMERMAN, P.J. and PRESTON, J., concur.
/hls