Toon v. SowderToon v. Sowder
Kathleen C. King, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
PIPER, J.
{¶ 1} Defendant-appellant, Lara Sowder (Mother), appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, ordering еqual parenting time and setting child support obligations.
{¶ 2} Mother and plaintiff-appellee, Christopher Toon (Father), had one child, though the parties were never married. Mother and Father had a long-term relationship, and lived
{¶ 3} Mother allowed Father to visit with the child оnce a week for approximately one hour. The weekly visitation occurred until October 2010, when Mother received notice that Father filed a motion in juvenile court for determination of parentage and custody of the child. Mother did not permit Father to see the child in November. Father sent Mother a text message and asked to seе the child during the Christmas holiday season, but Mother did not respond. Father was once again permitted to see the child in February 2011 once the parties began the litigation process in court. Other than Father‘s visitation with the child, Mother has been the child‘s primary caregiver since birth.
{¶ 4} The parties presented testimony and evidence before a juvenile сourt magistrate during a two-day hearing in July 2011. The magistrate issued a decision establishing Father‘s paternity and designating Mother the sole residential parent and legal custodian. However, the magistrate ordered equal parenting time, and further ordered Father to pay child support in an amount less than the standard order.
{¶ 5} Mother filed objections to the magistrаte‘s decision, and the trial court overruled each in turn. Mother now appeals the trial court‘s decision, raising the following assignments of error:
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED BY AWARDING FATHER 50% PARENTING TIME-SHARING WITH THE PARTIES’ ONE-YEAR OLD CHILD. [sic]
{¶ 8} Mother argues in her first assignment of error that the trial court erred in giving Father equal parenting time because Father had only weekly contact with the child prior to his custody motion; Father‘s living situation has been unstаble; Father has demonstrated an immature attitude in the past; and because Mother has been the child‘s primary caregiver
{¶ 9} According to
An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legаl custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.
{¶ 10} An appellate court reviews a juvenile court‘s custody determination for an abuse of discretion. In re Brown, 142 Ohio App.3d 193, 198 (12th Dist.2001). An abuse of discretion constitutes more than an error оf law or judgment; it requires a finding that the trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “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.” In re J.M., 12th Dist. No. CA2008-12-148, 2009-Ohio-4824, ¶ 17, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
{¶ 11}
{¶ 12} In order to determine the best interest of a child,
{¶ 13} The juvenile court also has broad discretion as to visitation issues. In re S.K.G., 12th Dist. No. CA2008-11-105, 2009-Ohio-4673, ¶ 21. The juvenile court‘s decision, therefore, is subject to reversal only where there is an abuse of discretion. In re A.M., 12th Dist. No. CA2005-11-492, 2006-Ohio-5986, ¶ 8.
{¶ 14} Before determining custody and visitation, the trial court considered the best interest factors of
{¶ 15} The court heard evidence that both parents wanted to have custody of the child. The court did not consider the child‘s wishes or conduct an in camera interview due to the child‘s young age of 11 months at the time of the hearing. The court also heard evidence that the child has a positive relationship developing with both parents, but spent most of her young life in Mother‘s care. The child has also bonded with Mother‘s two older children, as well as the child‘s maternal grandmother, who provides day-care for the child while Mother is at work.
{¶ 16} Due to the child‘s young age, the court did not address the child‘s adjustment to school or the community, but rather focused on the child‘s adjustment to the homes of either Mother or Father. Father has lacked long-term stability in his housing due to a second job of buying houses, fixing them up, and reselling them. While Mother has lived in the same home for seven years, Father has moved multiple times. However, the court found that the child
{¶ 17} The trial court also considered evidence regarding the mental and physical health of all persons involved in the situation, and found that there is no indication that the child had any mental or physical health issues that required consideration. However, the court heard testimony that Mother has received medical attention in the past for bi-polar disorder and anxiety/depression. Mother, though, discontinued her treatment and medication once Father left her home, and did so without medical advice to discontinue such treatment.
{¶ 18} The trial court determined that Father is the parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights. Given the lack of court-ordered established time, neither party has a history regarding facilitating court-approved parenting time. Nonetheless, the court heard evidence that Mother‘s two children from two different fathers do not have relationships with their father or paternal family members. The court also considered that when Father asked for parenting time during the 2010 holiday season, Mother did not respond and effectively denied Father his request for visitation. Conversely, the court found Father to be “a rule follower” and expressed confidence that he would abide by a court order regarding parenting time.
{¶ 19} The parties did not present any evidence that either party is behind in child support obligations, but Mother did present evidence that Father was charged with dоmestic violence and pled to a menacing charge. The facts of the incident were disputed by the parties during the hearing, and Father asserted that Mother was actually the one who hit him. Father also argued that Mother was abusive of her two older children, though he never reported his concerns to law enforcement. Mother, on the other hand, characterized what Father called abuse as disciplining her two older children, and provided reasons why the discipline occurred. Regardless of the evidence presented and the back and forth between the parties, the factor calls for the court to consider only prior convictions for “any act that
{¶ 20} After balancing these factors, the trial court determined that Mother should have sole residential and legal custody, but that the parties would have equal parenting time with the child based on a two-week rotating schedule. While the court heard extеnsive testimony from both parties about the shortcomings of the other parent, both parties love the child and desire a relationship with her. The court found that the parties have very different personalities and traits, some of which would constitute positive attributes while raising a child. However, the trial court also found that both parties had shortcomings, and that neither party was entirely credible. Notwithstanding the parties’ shortcomings, the trial court made its decision hoping to “maximize the positives that each parent can provide,” and implored the parties to do “likewise” in the future as they navigated through the shared visitation schedule.
{¶ 21} Notwithstanding the fact that Mother was named the child‘s legal custodian, she argues that the trial court abused its discretion in deviating from the standard parenting order by giving each party equal parenting time. While Mother is accurate in stating that Clermont County Juv.R. 23.1 requires a court to adopt the standard parenting time guidelines, the rule also states that the standard guidelines should not be adopted if the “facts of a case warrant а deviation pursuant to
{¶ 22} The factors listed in
{¶ 23} The factors not listed in
{¶ 24} Mother essentially argues that the trial court abused its discretion by not specifically addressing the
{¶ 25} The trial court adopted the magistrate‘s opinion, which addressed the best interest factors, as well as demonstrated that the magistrate contemplated the 16 factors of
{¶ 26} The magistrate‘s opinion addresses the geographical location between the parents, and that the parties live approximately 45 minutes apart from each other. The magistrate also discussed that the parties both work, when they work, and where the child would receive care when the parties are working. The magistrate often discussed the child‘s
{¶ 27} After a thorough review of the record, we cannot say that the trial court abused its discretion in deviating from the standard рarenting agreement and giving Father equal parenting time to Mother. As such, Mother‘s first assignment of error is overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE TRIAL COURT ERRED WHEN IT DEVIATED DOWNWARD FROM THE CHILD SUPPORT WORKSHEET.
{¶ 30} Mother argues in her second assignment of error that the trial court erred in deviating downward from the child support calculation worksheet when ordering Father‘s child support obligation.
{¶ 31} According to
The court may order an amount of child support that deviаtes from the amount of child support that would otherwise result from the use of the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, if, after considering the factors and criteria set forth in section
3119.23 of the Revised Code, the court determines that the amount calculated pursuаnt to the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, would be unjust or inappropriate and would not be in the best interest of the child.If it deviates, the court must enter in the journal the amount of child support calculated pursuant to the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that
determination.
The court may consider any of the following factors in determining whether to grant a deviation pursuant to section
3119.22 of the Revised Code:(D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order * * *.
{¶ 32} Mother argues that the trial court abused its discretion in setting child support because it failed to make findings of fact to support its determination that it would be in the child‘s best interest to deviate from the actual child worksheet. However, the statute requires only that a court complete the worksheet, make a finding that the standard amount would be unjust or inappropriate and not in the best interests of the child, as well as findings supporting that determination. After reviewing the record, we find that the magistrate‘s оpinion comports with the statutory requirements.
{¶ 33} The magistrate completed the worksheet, and then found that the standard order would be unjust, inappropriate, and not in the child‘s best interest. The magistrate then stated that a deviation was proper based on Father having equal parenting time with the child. While the magistrate did not specifically address eаch factor or offer extensive analysis, nothing in the statute mandates that either is necessary. Instead, the statue requires only the specific finding of unjustness or inappropriateness, coupled with a finding that the standard order is not in the best interest of the child.
{¶ 34} Neither does the statute require extensive analysis, regardless of how helpful a
{¶ 35} While the better practice is for a trial court to explain fully its reasoning for reaching a particular decision when deciding whether to deviate from the standard order, we cannot say that the court‘s concise analysis of the dеviation issue failed to fulfill the
{¶ 36} The trial court heard evidence regarding Father‘s ability to provide for the child, and what purchases and ongoing support Father would have to provide once he had the child half the time. Given the extended amount of time that Father would have the child and the related expenses, we cannot say that the decisiоn to deviate from the standard order was arbitrary, unreasonable, or unconscionable. Having found no abuse of discretion, Mother‘s second assignment of error is overruled. Our decision today renders moot any stay that may have been in place, and there is no reason to delay in implementing the trial court‘s judgment regarding equal parenting time.
{¶ 37} Judgment affirmed.
Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.