ANNA L. SHEETER, Plaintiff-Appellant, vs. MICHAEL D. SHEETER, Defendant-Appellee.
Case No. 12CA7
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
Released: 04/09/13
[Cite as Sheeter v. Sheeter, 2013-Ohio-1524.]
McFarland, P.J.
APPEARANCES:
Lorene G. Johnston, Jackson, Ohio, for Appellant.
William S. Cole, Jackson, Ohio, for Appellee.
McFarland, P.J.
{¶ 1} This is an appeal by Anna L. Sheeter, Appellant, from the judgment of the Jackson County Court of Common Pleas adopting the Magistrate’s decision to terminate the parties’ shared parenting plan and decree, and designating Appellee, Michael D. Sheeter, as the custodial parent of the parties’ minor children. On appeal, Appellant contends that 1) the trial court erred as a matter of law when it affirmed the Magistrate’s decision; 2) the trial court erred as a matter of law and abused its discretion in that the evidence was insufficient to support its conclusion that it was in
{¶ 2} Because we conclude that the trial court did not err or abuse its discretion in terminating the shared parenting decree, naming Appellee as the custodial parent of parties’ minor children, and awarding Appellant standard companionship time according to the court’s local rule, we find no merit to Appellant’s second, third and fourth assignments of error and they are, therefore, overruled. Additionally, in light of our conclusion that Appellant has failed to affirmatively demonstrate that the trial court failed to exercise independent judgment in adopting the magistrate’s decision, we find no merit to Appellant’s first assignment of error and it is also overruled.
{¶ 3} Accordingly, having found no merit in the assignments of error raised by Appellant, the decision of the trial court is affirmed.
FACTS
{¶ 4} Appellant and Appellee were married on October 9, 2004, and are the parents of two minor children: a son born on April 11, 2005, and a
{¶ 5} The shared parenting plan and decree collectively provided that the parties share time with the children equally. More specifically, the plan provided that the parties were to share physical custody of the children on a rotating two week schedule. Neither party was expressly designated as the residential parent. Then, on June 2, 2010, Appellee filed a motion to terminate and/or modify the existing plan of shared parenting and requested that he be designated the residential parent of the parties’ minor children. This filing was followed by a motion in contempt, claiming that Appellant was in contempt of the April 22, 2009, orders.
{¶ 7} On June 29, 2011, the magistrate issued pre-trial orders asking the parties to address the best interest factors in the form of post-trial briefs. Thus, the parties each submitted supplemental post-trial briefs specifically addressing the
{¶ 8} Appellant filed objections to the magistrate’s decision on October 4, 2011, and filed supplemental objections on January 17, 2012. The trial court issued an order on April 5, 2012, remanding the matter to the magistrate for determination as to whether he considered the
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT AFFIRMED THE MAGISTRATE’S DECISION.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT ITS CONCLUSION THAT IT WAS
III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN THAT NAMING [SIC] DEFENDANT-APPELLEE- FATHER SOLE RESIDENTIAL PARENT WHEN IT WAS NOT IN THE BEST INTEREST OF THE CHILDREN.
IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN THAT ITS VISITATION ORDER WAS NOT IN THE BEST INTEREST OF THE CHILDREN.”
ASSIGNMENT OF ERROR II
{¶ 9} For ease of analysis, we address Appellant’s assignments of error out of order. In her second assignment of error, Appellant contends that the trial court erred and abused its discretion in terminating the shared parenting decree, arguing that the evidence was insufficient to support the conclusion that such a decision was in the best interest of the children. Thus, we begin our analysis by considering the appropriate standard of review.
{¶ 10} “ ‘An appellate court reviews a trial court’s decision to terminate a shared parenting plan under an abuse of discretion standard.’ ” Nolan v. Nolan, 4th Dist. No. 11CA3444, 2012-Ohio-3736, ¶ 31; quoting In re J.L.R., 4th Dist. No. 08CA17, 2009-Ohio-5812, ¶ 30. An abuse of discretion connotes more than a mere error of judgment; it implies that the court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Further,
“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 parents or whenever it determines that shared parenting is not in the best interest of the children.” (Emphasis added).
{¶ 11} Here, a review of the record reveals that Appellee filed a motion requesting that the trial court terminate the parties’ shared parenting decree. The magistrate, in issuing several pre-trial orders, and also in the issuance of its decision, indicated that the best interest of the children would govern in the determination of whether to grant this request. Further, in his decision, the magistrate indicated he had considered the best interests of the children in terminating the shared parenting decree.
{¶ 12} In adopting the magistrate’s decision, over the objections of Appellant, the trial court stated that “[t]he Court, upon its own review, determined the instant shared parenting plan was approved under
{¶ 13} Based upon the plain language of the statute, we are in agreement with the reasoning of the trial court with respect to the termination of the shared parenting agreement. The language of the statute clearly permits shared parenting to be terminated upon the request of one or both parents when the shared parenting decree was approved under
{¶ 14} As such, we find no abuse of discretion on the part of the trial court in adopting the magistrate’s decision to terminate the shared parenting decree. Accordingly, Appellant’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶ 15} In her third assignment of error, Appellant contends that the trial court erred and abused its discretion in naming Appellee as the sole residential parent, claiming such decision was not in the best interest of the children. “Although a trial court must follow the dictates of
{¶ 16} As set forth above, we review “a trial court’s decision to terminate a shared parenting plan under an abuse of discretion standard.” In re J.L.R., supra, at ¶ 30. Further, as set forth above, we have already determined that the trial court’s decision to terminate the shared parenting plan and decree, upon the request of Appellee, was not an abuse of discretion. Our present inquiry, however, focuses on whether, after terminating the shared parenting decree, the trial court abused its discretion
{¶ 17} “Upon the termination of a prior final shared parenting decree under [
{¶ 18} “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.”
“(a) The wishes of the child’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 court-approved 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 or any member of the household of 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 or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child; (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.”
{¶ 19} Here, the magistrate’s decision indicated that the
{¶ 20} A review of the record reveals that both parties contributed to the above problems. For instance, although Appellant removed one of the children from the school in which Appellee had initially enrolled her, the record indicates that Appellee enrolled the child in that school without Appellant’s knowledge or permission. Both of these actions were contrary to the best interests of the children. Further, the trial court cites the parties’ inability to communicate and agree upon medical appointments and treatment for the children and the parties’ antagonistic relationship. A review of the record indicates the both parties contributed to these problems. For instance, while Appellant failed to cooperate with Appellee in filling out a behavior chart for the parties’ son as recommended by the child’s psychiatrist, the record also reveals that Appellee unilaterally cancelled a scheduled appointment the child had with the psychiatrist. Thus, both parties, at times, as a result of their inability to communicate and cooperate, acted contrary to the best interests of the children.
{¶ 21} As set forth above, although the trial court was not required to consider the best interests of the children in terminating the shared parenting plan, it did. In light of the foregoing, it is apparent that shared parenting was
ASSIGNMENT OF ERROR IV
{¶ 22} In her fourth assignment of error, Appellant contends that the trial court erred and abused its discretion in issuing its visitation order,
{¶ 23} As stated above, the trial court “enjoys broad discretion when determining the appropriate allocation of parental rights and responsibilities.” H.R. at ¶ 13 (citations omitted). This broad discretion also applies to custody proceedings. In re J.C., 4th Dist. No. 09CA3334, 2010-Ohio-4086, at ¶ 9. Further, as discussed above under our consideration of Appellant’s second and third assignments of error, after considering the best interest factors set forth in
ASSIGNMENT OF ERROR I
{¶ 25} In her first assignment of error, Appellant contends that the trial court erred as a matter of law when it affirmed the magistrate’s decision. More specifically, Appellant argues that the trial court failed to undertake an independent review in determining whether the magistrate properly determined all factual issues and appropriately applied the law. Thus, Appellant argues that the trial court abused its discretion in adopting the magistrate’s decision.
{¶ 26}
{¶ 27} Because an appellate court generally presumes regularity in the proceedings below, we presume that the trial court conducted an independent analysis in reviewing the magistrate’s decision. Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 47. And because of that presumption, the party asserting error bears the burden of affirmatively demonstrating that the trial court failed to perform an independent analysis. Arnold v. Arnold, 4th Dist. No. 04CA36, 2005-Ohio-5272, ¶ 31; Mahlerwein at ¶ 47. “An affirmative duty requires more than a mere inference [;] it requires [an] appellant to provide the reviewing court with facts to rebut our general presumption.” In re Taylor G., 6th Dist. No. L-05-1197, 2006-Ohio-1992, ¶ 21. Simply because a trial court adopted a
{¶ 28} Here, the judgment entry that adopted the magistrate’s decision stated:
“The court has made an independent review as to the objected matters. This included a review of all filings by the parties, the transcript of the proceeding filed by Plaintiff, and a review of the applicable law. Upon the independent review, the Court ascertains that the Magistrate has properly determined the factual issues and appropriately applied the law.”
Thus, the record indicates that the trial court, after conducting an independent review, adopted the magistrate’s decision and entered judgment terminating the shared parenting decree, designating Appellee as the residential parent, and awarding Appellant standard companionship time. Additionally, as discussed under our analysis of Appellant’s second assignment of error, the trial court noted a different legal standard applied with regard to the issue of termination of the shared parenting decree. As set forth above, the trial court stated that the decree could be terminated simply
{¶ 29} In light of the foregoing, we conclude that Appellant has not affirmatively demonstrated that the trial court failed to exercise independent judgment. Further, as already set forth in our consideration of Appellant’s second, third, and fourth assignments of error, we have found no abuse of discretion on the part of the trial court in terminating the parties’ shared parenting decree, designating Appellee as the residential parent and awarding Appellant standard companionship time. Accordingly, Appellant’s first assignment of error is overruled.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.