V.C. v. O.C.
No. 109988
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 29, 2021
2021-Ohio-1491
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
RELEASED AND JOURNALIZED: April 29, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case Nos. DR-11-338367 and DR-18-371176
Appearances:
Ronald A. Skingle, for appellee Mother.
John H. Lawson, for appellees Children.
O.C., pro se.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Father-appellant, O.C. (“Father“), pro se, appeals from the trial court‘s order terminating a shared parenting plan, designating Mother-appellee,
{¶ 2} For the reasons that follow, we find that the trial court did not abuse its discretion in terminating the parties’ shared parenting plan and designating Mother as residential parent and legal custodian of the parties’ minor children. However, we find that the trial court failed to apply the appropriate standard and, therefore, abused its discretion, in determining the amount of Father‘s child support obligation. Accordingly, we reverse the trial court‘s child support order and remand for proceedings on that issue. We otherwise affirm the trial court‘s decision.
Procedural and Factual Background
{¶ 3} Mother and Father were married on August 21, 1999 in Nigeria. The couple later immigrated to the United States. They have four children — daughter C.C. (d.o.b. 1/29/00), son C.F.C. (d.o.b. 3/27/03), daughter C.T.C. (d.o.b. 8/24/06) and son U.C.C. (d.o.b. 5/28/10).
{¶ 4} On September 13, 2011, Mother filed a complaint for legal separation in Cuyahoga C.P. No. DR-11-338367. On March 26, 2013, the couple was granted a legal separation. The judgment entry of legal separation (the “separation order“) incorporated a shared parenting plan for the parties’ minor children. Under the shared parenting plan, Mother and Father were both designated residential parents
{¶ 5} In or around October 2016, Father obtained a new position. He began working Monday-Friday, 8:00 a.m. – 4:30 p.m., at the Veteran‘s Administration Medical Center in Marietta, Ohio, more than a couple hours commute from his Solon residence, and established a second residence in or near Marietta, Ohio.1 Father did not initially inform Mother of his change in employment. On the days he worked during his scheduled parenting time, Father remained in Marietta and hired nanny services to care for the children after school, left the younger children in the care of the couple‘s eldest daughter overnight and before school and “cyber-
{¶ 6} At this time, Mother worked 19 weeks per year plus an additional three nights per month at the Cleveland Clinic‘s Medina campus. When Mother was required to work during her parenting time, she employed a nanny to care for the minor children.
{¶ 7} On February 1, 2018, Mother filed a motion to terminate the shared parenting plan and to modify the parenting time schedule, claiming that the co-parenting arrangement provided for in the shared parenting plan had proven to be “unworkable.” At this time, all of the parties’ three minor children were exhibiting behavioral issues and difficulties with their school work. Mother alleged that Father refused to comply with the terms and spirit of the shared parenting plan, refusing to make joint decisions relating to the health care and education of the children and attempting to “sabotage or undermine” her relationship with the children. She further alleged that due to Father‘s new job in Marietta, he was unable to care for the children during his scheduled parenting time. Mother requested that the court modify the parenting time schedule, that she be designated the sole residential parent of her then-three minor children2 and that the children reside primarily with her.
{¶ 9} The trial court appointed Attorney John Lawson as counsel and guardian ad litem for the children (the “GAL“) and the matter was referred to the court‘s family evaluation services (“FES“) for evaluation pursuant to
{¶ 10} In the spring of 2018, a dispute arose between the parties regarding the education of the couple‘s youngest child, U.C.C., who was exhibiting significant behavioral issues at school. Father filed a motion for a temporary restraining order in the divorce action to prevent Mother and the Solon City School District (the “School District“) from conducting a disability evaluation of U.C.C. Over Father‘s objection, but with Mother‘s consent and involvement, the School District evaluated U.C.C. and determined that he had an emotional disability, qualifying him for special education services. Over Father‘s objection, U.C.C. was transferred to an alternative school, where his behavioral issues improved significantly.
{¶ 11} In May 2018, Mother filed a motion for an emergency ex parte order designating Mother the residential parent for school purposes with authority to make school decisions for U.C.C. The court granted the motion. The trial court denied Father‘s motion to vacate the order, and Father filed a motion for reconsideration. Following a hearing at which Mother, Father and representatives from the School District testified, the magistrate denied Father‘s motion for
{¶ 12} Father filed a due process complaint with the Ohio Department of Education, asserting that the School District had improperly identified U.C.C. as a child with a disability. Following an administrative hearing on the matter, the hearing officer determined that Father had failed to meet his burden of proof that U.C.C. was inappropriately identified as a child with a disability. Father appealed and the decision was affirmed.3
{¶ 13} On July 25, 2018, Father filed a motion to remove the GAL, alleging that the GAL was “pre-disposed to making recommendations that favor” Mother and asserting that “[a]s a result,” the meetings between them had become “increasingly contentious.” The trial court denied the motion.
{¶ 14} In or around September 2018, after C.C. went off to college, Father discontinued his cyber-parenting and began commuting on a daily basis between Solon and Marietta during his parenting time weeks, employing nannies to see the children off to school in the morning after he left for work.
{¶ 16} In April 2019, C.F.C. was arrested after he struck Father in the head with his fist. As a result of the incident, he was adjudicated an unruly child in Cuyahoga C.P. No. DL-19-04858.
The Hearing
{¶ 17} A hearing on the pending motions commenced on July 25, 2019. The hearing continued on July 26, 2019, October 7, 2019, January 31, 2020 and August 5, 2020.4 Prior to the hearing, the GAL filed a motion in limine to preclude the parties from presenting evidence regarding events that occurred before the trial court adopted the shared parenting plan. Over Father‘s objection, the trial court granted the motion.
Interim Custody and Child Support Orders
{¶ 19} On July 30, 2019, after the first two days of the hearing, and after the trial court had conducted an in camera interview with the children and the GAL, the trial court issued an interim order, temporarily terminating the parties’ shared parenting plan and designating Mother “the custodial parent” of the three minor children “with full decision-making authority on all issues” (the “interim child custody order“). Father was granted parenting time in accordance with the Cuyahoga County Standard Visitation Schedule, i.e., every Wednesday overnight and alternating weekends plus time during holidays, school vacations and days of special meaning. Father was also ordered to pay Mother $1,184.39 per month in child support for the three minor children beginning August 1, 2019.
{¶ 20} On September 19, 2019, Father filed an emergency motion to vacate the interim child custody order, arguing that the children were “increasingly alienated” from Father and were lacking sufficient exposure to Father‘s “disciplinary structure.” The trial court denied the motion.
{¶ 21} On October 11, 2019, Mother filed a motion to modify temporary child support, requesting that Father‘s temporary monthly child support obligation be
Mother‘s annual income — $248,214.00
Father‘s annual income — $220,644.00
Mother‘s annual out-of-pocket insurance premiums — $15,476.16
Mother‘s actual annual child care expenses — $18,000.00
Father‘s annual out-of-pocket insurance premiums — $0
Father‘s annual child care expenses — $05
{¶ 22} On October 24, 2019, the trial court granted the motion, “approved and adopted” the child support worksheet attached to Mother‘s motion and ordered Father to pay temporary monthly child support of $2,444.83 ($2,348.32 plus $48.07 for cash medical plus the processing fee) effective October 15, 2019. The following day, Father filed a motion to vacate the temporary child support order and requested an oral hearing, arguing that: (1) the order was issued before he had an opportunity to file a timely response to Mother‘s motion, (2) the order was premature because the trial court had ordered the parties to file updated financial affidavits by November 15, 2019, (3) the order did not comply with
{¶ 23} On November 6, 2019, the trial court “sustained” Father‘s request for an oral hearing on these issues, indicated that “these issues will be heard at the commencement of the scheduled [t]rial dates of January 30 and 31, 2020” and stated that Father‘s “motion to vacate the current child support orders is taken under advisement regarding the above dates.” On November 6, 2019, Father filed an updated affidavit of income and expenses with the trial court. He then filed a motion to stay the October 24, 2019 temporary child support order until the matter could be heard on January 30 and 31, 2020. The trial court denied Father‘s motion to stay. The trial court did not rule on Father‘s motion to vacate the October 24, 2019 temporary child support order when the hearing was continued on January 31, 2020.
{¶ 24} On January 31, 2020, the parties filed stipulations, including stipulations regarding their residence(s), employment, income, child care expenses and parenting time schedule. With respect to Mother, the parties stipulated that Mother worked as a physician at the Cleveland Clinic‘s Medina Campus on “[a]lternate [w]eeks, Monday through Sunday, 7:30 a.m. through * * * 5:30 p.m.” and “[t]hree (3) nights per month, 4 p.m. though 7:30 p.m.“; that her “[t]otal 2019 W-2 [i]ncome” was $264,352.34 and that her annual work-related child care costs were $21,600 ($900 per week). With respect to Father, the parties stipulated that Father was employed as a physician at the Veteran‘s Administration Medical Center
{¶ 25} On March 19, 2020 and April 11, 2020, Mother filed motions requesting that the trial court direct the Cuyahoga County Office of Child Support Services (“OCSS“) to disburse all child support Father had paid to her. Mother claimed that OCSS had placed a “hold” on her account due to confusion surrounding the trial court‘s orders (1) granting Father‘s request for a hearing on the issue of child support but (2) denying Father‘s motion to stay the trial court‘s October 24, 2019 temporary child support order. Mother asserted that she had not received any child support since July 24, 2019. Father opposed the motions. On May 8, 2020, the trial court granted these motions.
The GAL‘s Reports and Recommendations
{¶ 26} The GAL filed three written reports that are part of the record on appeal. On July 18, 2019, the GAL filed his initial report in which he indicated that he “strongly believe[d] that the Shared Parenting Plan need[ed] to be terminated.”6
{¶ 28} The GAL reported that although Father “has been very rigid in his thinking” and “incessantly blames the Mother for all of the [c]hildren‘s problems since 2010,” Mother has taken “responsibility for her part” in the children‘s behavior problems. The GAL recommended that the shared parenting plan be terminated, that Mother be designated the residential parent for school purposes, that a new parenting schedule be developed based on when the children can live with each parent for full 24-hour periods and that all medical, mental health and school
{¶ 29} On October 4, 2019, the GAL filed a “follow-up interim guardian ad litem report” in which he addressed developments since the trial court had issued its July 30, 2019 interim custody order. The GAL provided detailed information regarding each of the children‘s progress with behavioral issues and their academic performance as reported by the parents and the children‘s schools.
{¶ 30} The GAL indicated that he was “confident” that the children were “adapting to the new schedule and that it was in their best interests.” He noted, however, that “Father strongly disagrees with this premise and believes that all of the [c]hildren‘s situations are worsening because they do not have the discipline that he would give them.” The GAL reported that both parents were having some difficulty adjusting to their 13-year-old daughter “acting like a stereotypical teenager” and being, at times, “reactive and defiant.” He reported that Mother had reached out to Father with emails about the children, but that Father refused to work with Mother to resolve the issues raised in the emails and, instead, used the information in the emails against her, “blam[ing] the Mother for nearly everything.” He indicated that Father “cannot seem to put his [c]hildren‘s needs [above] his own,” that Father may need “some parenting training” and that Father had been “very aggressive and insulting,” alleging that the GAL and Mother‘s counsel were conspiring with the School District “to keep his younger [s]on labeled as ‘disabled.‘”
{¶ 32} On August 27, 2020, the GAL filed a final, supplemental report. Once again, the GAL provided detailed information regarding each of the children‘s progress with behavioral issues and their academic performance.
{¶ 33} The GAL indicated that once the governor closed the schools in March 2020, “significant problems” occurred with the children, particularly the older children, who were not completing their assignments and were having conflicts with the new nanny that Mother had hired to supervise the children when she was at work. The GAL reported that after the schools closed, an effort was made to have both parents “share the responsibility” of the children and granting Father additional parenting time with the children, but that Father “rejected Mother‘s proposal.” The GAL reported that Mother had stated that she was not certain she could continue to manage the misbehavior of the older children and that, at one point, Mother had proposed to Father that he take custody of the two older children. The GAL further reported that Mother had indicated that she was hopeful that once school reopened the children would have more structure and their behavior would improve.
{¶ 34} The GAL expressed concern about the older children being placed in Father‘s care if Father was still working in Marietta because he could not offer
{¶ 35} The GAL stated that he had met with all three minor children on April 24, 2020 and July 20, 2020. He reported that all three children clearly indicated that they did not want to change the parenting schedule then in effect. The GAL stated that he “continue[d] to stand by [his] recommendations” in his July 18, 2019 report.
Recommendations of FES Evaluator
{¶ 36} The record also includes a detailed report from the FES evaluator dated December 19, 2018.7 In that report, the FES evaluator indicated that the parents were “extremely hostile towards each other and rarely agreed on anything.” Although the FES evaluator stated that he “did not question [Father‘s] love for or commitment to the success of his children,” he stated that Father‘s “insistence that the children do not have any real behavioral problems, or that they only act out when they are not with him, is quite concerning” given that information provided by the children‘s nannies and reported in school, police and other records indicate that the children “have had behavioral problems on both parent‘s time.” (Emphasis
{¶ 37} The FES evaluator found that the current shared parenting arrangement “has not worked well” and “recommended that a significant break in the status quo be explored.” At that time, the FES evaluator recommended that “[b]oth parents should retain legal custody, with each being named residential parent while the children are in their care.” However, the FES evaluator also recommended that, given Father‘s employment in Marietta, Mother be granted residential custody for school purposes, that Father receive “extra time” with the children on weekends and extended breaks from school and that, due to Father “continuing to block every effort [Mother] makes,” Mother be given the final decision-making authority regarding school and medical decisions.8
Proposed Findings of Fact and Conclusions of Law
{¶ 38} At the conclusion of the hearing, the trial court issued an order, granting the parties leave to file written final arguments, proposed findings of fact and conclusions of law and proposed final judgment entries. On August 28, 2020,
{¶ 39} On September 9, 2020, the trial court adopted Mother‘s proposed findings of fact and conclusions of law, indicating that Mother “did timely file” proposed findings of fact and conclusions of law but that Father “did not.” The trial court directed Mother to submit a final journal entry consistent with the trial court‘s orders within 14 days “to finalize this case.” The following day, Father filed, pro se, a notice of appeal.
{¶ 40} On September 11, 2020, this court, sua sponte, dismissed Father‘s appeal for lack of a final, appealable order.
Trial Court‘s Final Judgment
{¶ 41} On September 25, 2020, the trial court issued its final judgment entry, terminating the parties’ shared parenting plan, designating Mother as the residential parent and legal custodian of the parties’ three minor children and ordering Father to pay $2,444.83 per month (including cash medical and the processing fee).
{¶ 42} The trial court indicated that its decision was based on the testimony and exhibits presented at the hearing, including the reports and recommendations of the GAL and FES evaluator. The trial court also took judicial notice pursuant to
Assignment of Error No. 1: The trial court erred and abused its discretion, when on 07/30/2019, it terminated the shared parenting plan and granted mother full custody in the interim, without an impartial determination of a change in circumstances and the correct custody modification that is necessary for the best interest of the children, as required by
O.R.C. 3109.04 (E) .Assignment of Error No. 2: The trial court erred and abused its discretion, when on 09/27/2019, it dismissed father‘s motion to vacate the interim child custody order of 07/30/2019, despite the evidence that the circumstances of the children got worse under the interim order compared to the shared parenting decree, which is contrary to the requirements of
O.R.C. 3109.04 (E) .Assignment of Error No. 3: The trial court erred and abused its discretion when on 09/09/2020, it adopted mother‘s statement of facts and conclusions of law for the purpose of making its final judgement entry, while falsely declaring father‘s statement of facts and conclusions of law, as untimely, and completely excluded it in the judgement. (Amendments, 1, 5, 9, 14).
Assignment of Error No. 4: The trial court erred and abused its discretion, when on 09/25/2020, it made its finalized judgement entry, granting full custody and child support to mother, although mother did not meet the burden of proof and the court did not conduct an impartial review of the facts of the case in the best interest of the children, as required by
O.R.C. 3109.04(E) .Assignment of Error No. 5: The trial court erred and abused its discretion in its orders of 07/30/2019, 10/24/2019, 12/02/2019, 05/05/2020 and 08/13/2020, in determining that father should have child support obligation to mother, the amount of the child support obligation and in disbursing the collected amount from father to mother, although the orders were based on incorrect data and were not in the best interest of the children, as required by
O.R.C. 3119.04 ,O.R.C. 3119.22 andO.R.C. 3119.23 .Assignment of Error No. 6: The trial court erred and abused its discretion in excluding father‘s narratives in case # DR 18 371176, after
it was consolidated into DR 11 338367 and in making some orders which obstructed the use of evidence relevant for a correct determination of the capabilities of the parents to care for the children, by denying the following motions: motion to vacate (Mother, R. 156); motion to remove the GAL (Mother, R. 177); motion to dismiss motion in limine (Mother, R.192); objection to magistrate‘s decision (Mother, R. 191); motion to enforce parental rights (Mother, R. 226); and in refusing to admit some relevant exhibits during trial, including striking out defendant‘s rebuttal of GAL‘s report and dismissing defendant‘s motion to show cause (Mother, R. 343). (Sup. R48; Amend. 14) Assignment of Error No. 7: The trial court erred and abused its discretion in asking father to bear the court cost[s] despite the conduct of mother, who initiated the litigation and presented incorrect data to the court that led to orders, which placed father in financial hardship and are not in compliance with the recommendations of
O.R.C. 3105.73 andO.R.C. 3109.04 (E) .
{¶ 44} For ease of discussion, we address Father‘s assignments of error out of order and together where appropriate.
Law and Analysis
Interim, Temporary Orders
{¶ 45} In his first, second and fifth assignments of error, Father claims error in various temporary orders issued by the trial court, including interim custody orders and child support orders, while the parties’ parenting motions were pending. Father contends that the trial court “erred and abused its discretion” in entering the July 30, 2019 interim child custody order, which terminated the parties’ shared parenting plan and awarded custody of the children to Mother, and in denying Father‘s September 19, 2019 motion to vacate the interim child custody because the orders were “arbitrarily” entered without “an impartial consideration of a change in circumstances,” were contrary to the best interest of the children and were “not
{¶ 46} Temporary orders allocating custody between parents or ordering temporary child support are interlocutory orders, not final judgments. See, e.g., In re C.T-T., 8th Dist. Cuyahoga No. 107059, 2019-Ohio-3362, ¶ 10, citing In re B.A.L., 2016-Ohio-300, 47 N.E.3d 187, ¶ 25 (8th Dist.) (Appellate court had no jurisdiction to review temporary custody order “because such an order is not a final, appealable order. A temporary order allocating custody between parents is not a final judgment, but rather is an interlocutory order.“); see also Baker-Chaney v. Chaney, 5th Dist. Holmes No. 16CA005, 2017-Ohio-5548, ¶ 35; Huffer v. Huffer, 10th Dist. Franklin No. 09AP-574, 2010-Ohio-1223, ¶ 12; State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 554, 700 N.E.2d 1281 (1998). “In a domestic relations action, interlocutory orders are merged within the final decree, and the right to enforce such interlocutory orders does not extend beyond the decree, unless they have been reduced to a separate judgment or they have been considered by the trial court and specifically referred to within the decree.” Colom v. Colom, 58 Ohio St.2d 245, 389
{¶ 47} Accordingly, we overrule Father‘s first, second and fifth assignments of error.
Trial Court‘s Adoption of Mother‘s Proposed Findings of Fact and Conclusions of Law
{¶ 48} In his third assignment of error, Father contends that the trial court erred and abused its discretion in adopting Mother‘s proposed findings of fact and conclusions of law and in determining that his proposed findings of fact and conclusions of law were untimely.
{¶ 49} On August 13, 2020, the trial court issued an order granting the parties leave to file written final arguments, proposed findings of fact and conclusions of law and “a final [judgment entry] as desired” by August 28, 2020. In
{¶ 50} “[T]here is nothing that per se prohibits a court from adopting a party‘s findings and conclusions as its own.” Mummey v. Mummey, 7th Dist. Noble No. 10 NO 371, 2010-Ohio-4243, ¶ 16. “A court may adopt verbatim a party‘s proposed findings of fact and conclusions of law as its own if it has thoroughly read the document to ensure that it is completely accurate in fact and law.” Janosek v. Janosek, 8th Dist. Cuyahoga Nos. 86771 and 86777, 2007-Ohio-68, ¶ 149; see also Gerston v. Parma VTA, L.L.C., 8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185, ¶ 68-69 (“It is not per se error for a trial court to adopt, verbatim, a party‘s proposed findings of fact and conclusions of law. * * * Error can only be found in such a case when the findings of fact and/or conclusions of law adopted by the trial court are against the manifest weight of the evidence.“), citing Chardon Park, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Geauga No. 2003-G-2524, 2004-Ohio-7221, ¶ 39; An v. Manson, 10th Dist. Franklin No. 06AP-90, 2006-Ohio-6733, ¶ 15 (“[A]doption of one party‘s findings in preference to another‘s will not of itself constitute error on
{¶ 51} There is nothing in the record before us to suggest that the trial court in this case in any way “abdicated its responsibility” to consider the testimony and documentary evidence presented and reach its own independent conclusions. An at ¶ 16. Accordingly, the mere fact that the trial court adopted Mother‘s proposed findings of fact and conclusions of law does not in and of itself constitute error.
{¶ 52} Father‘s third assignment of error is overruled.
Termination of Shared Parenting Order, Designation of Mother as Residential Parent and Legal Custodian and the Child Support Order
{¶ 53} In his fourth assignment of error, Father contends that the trial court erred and abused its discretion in granting “full custody and child support” to Mother because Mother “did not meet [her] burden of proof” and the trial court “did not conduct an impartial review of the facts of the case in the best interest of the children” as required by
Standard of Review
{¶ 54} Decisions regarding child custody and the allocation of parental rights and responsibilities are among “the most difficult and agonizing decisions a trial judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). As such, trial courts have “wide latitude” in their consideration of the evidence when making decisions related to child custody and the allocation of
{¶ 55} A trial court abuses its discretion when its decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is unreasonable when “no sound reasoning process” supports that decision. AAAA Ents. v. River Place Cmty. Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of discretion also occurs when a court “‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.‘” Mayer v. Mayer, 8th Dist. Cuyahoga No. 109103, 2020-Ohio-4993, ¶ 8, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.); see also Vail v. String, 8th Dist. Cuyahoga No. 107122, 2019-Ohio-984, ¶ 43.
{¶ 56} A trial court‘s factual findings in a child custody or child support matter are reviewed under a manifest weight of the evidence standard, i.e., a
Termination of Shared Parenting Order and Designation of Mother as Residential Parent and Legal Custodian
{¶ 57}
- The ability of the parents to cooperate and make decisions jointly, with respect to the children;
- The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
- Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
- The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
- The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
{¶ 59} If the trial court terminates a shared parenting decree,
Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.
{¶ 61} In determining what allocation of parental rights and responsibilities is in the best interest of a child, the trial court must consider “all relevant factors,” including, but not limited to, the specific factors enumerated in
{¶ 62} Father disputes the trial court‘s termination of the shared parenting plan. He contends that there was no evidence that the children‘s behavior and academic issues improved after the trial court entered its interim order terminating the shared parenting plan. Father also disagrees with the trial court‘s decision to designate Mother, rather than Father, legal custodian and residential parent of the parties’ minor children. He contends that the trial court‘s decisions were against the manifest weight of the evidence.
{¶ 63} In support of his contention, Father goes through the trial court‘s findings of fact as set forth in its final judgment entry paragraph by paragraph, identifying each fact that he contends is “incorrect,” “false” or “unverified” based on the evidence presented at the hearing. We are, however, limited in our ability to review this assignment of error due to Father‘s failure to file a transcript of the hearing.
{¶ 64} It is the appellant‘s duty to file the transcript or any parts of the transcript that are necessary for evaluating the trial court‘s decision.
{¶ 65} Without the filing of a transcript (or a statement of the evidence or proceedings under
{¶ 67} Father argues that the “docketing statements and the exhibits tendered during the trial” are “adequate” to establish that the trial court‘s final judgment was “invalid,” lacked due process, was not supported by the evidence and constituted an abuse of discretion. However, the trial court‘s “docketing statements” do not demonstrate what evidence was presented below. And without the transcript, we do not know which of the parties’ “tendered” exhibits were admitted into evidence at the hearing. Further, without access to a transcript of the testimony
{¶ 68} We find no reversible error on the face of the trial court‘s September 25, 2020 judgment entry related to its child custody determination. Although a trial court is not required to find a change in circumstances in order to terminate a shared parenting plan, in this case, the trial court nonetheless found that circumstances had changed since the date of the shared parenting order, stating
The evidence showed that a change in circumstances has occurred in this case warranting a termination of the parties’ Shared Parenting Plan and a modification of the allocation of parental rights/parenting time schedule, namely — (A) Father‘s decision to work in Marietta leaving his children virtually unsupervised during his scheduled parenting time; (B) Father‘s refusal or failure to co-parent with Mother according to the terms of their Shared Parenting Plan; (C) all three minor children‘s documented scholastic, social and emotional struggles and deterioration that have resulted from Father‘s decisions and actions.
{¶ 69} The trial court further found:
The best interests of the minor children require that, consistent with this Court‘s order issued July 30, 2019, these three children continue to reside primarily with Mother, that Mother be solely responsible for making all major decisions relating to their education, health care and extra-curricular decisions, and that Father be limited to standard parenting time consistent with the Cuyahoga County‘s Standard Parenting Time Schedule[.]
“Parallel parenting” in this case pursuant to the parties’ Shared Parenting Plan * * * has not worked for the three * * * children; in fact it has proven deleterious. The parties * * * lack the ability to co-parent — cooperate, make joint decisions and encourage the sharing of love and respect for that is necessary to ensure the success of shared parenting.
{¶ 71} The judgment entry also demonstrates that the trial court expressly considered each of the relevant factors listed in
(a) The wishes of the child‘s parents regarding the child‘s care;
Each parent has requested orders placing the children in their primary care and providing him or her sole decision-making power regarding all major decisions.
(b) If the court has interviewed the child in chambers * * * 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;
The Court has dutifully interviewed the minor children to ascertain their wishes and concerns. The guardian ad litem has also appropriately and responsibly met with and spoken with each child on numerous occasions to discuss their feelings and status, and verify their specific wishes and concerns regarding their placement.
(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;
The children have long resided in Solon and attended the Solon Schools (with exception of [U.C.C.] since the Spring, 2019), and are ensconced and comfortable in the Solon community.
(e) The mental and physical health of all persons involved in the situation;
All three children have deteriorated mentally since the Shared Parenting Plan was signed and filed in March, 2013.
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
Mother has faithfully honored the parenting time schedule and facilitated Father‘s relationship with all of their children. Father has not, and has further alienated the parties’ eldest daughter, [C.C.] from her Mother without the slightest feeling of regret.
(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;
Father is presently paying child support pursuant to this Court‘s Modified Order issued October 24, 2019. Any arrearages should be brought forward and remain due and collectible by Cuyahoga CSEA.
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to [various criminal offenses or] 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
Not applicable.
(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;
Father did continuously and willfully deny Mother her right to parenting time with the parties’ eldest daughter, [C.C.], then age 17, during the period July 1, 2017 through [C.C.‘s] 18th birthday (on January 29, 2018).
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
Neither parent has expressed an intention of relocating outside of Ohio, and this Court presently has custody of the children‘s passports. However, based upon the evidence, it is necessary that these passports be placed in the future care and control of Mother exclusively in order to preclude an international custody dispute as Nigeria, the country of both parties’ origin[,] is not a signatory to the Hague Convention. Neither parent should be permitted to travel or remove the children (or any of them) outside the Continental USA without a future order of the Cuyahoga County Court of Common Pleas.
(Emphasis added.)
{¶ 73} Father‘s fourth assignment of error is overruled to the extent it relates to the trial court‘s termination of the shared parenting order and custody determination.
Child Support Order
{¶ 74} In his fourth assignment of error, Father also argues that the trial court erred and abused its discretion in ordering him to pay Mother $2,444.83 per month in child support. Father contends that the trial court‘s child support determination was “based on incorrect data collected only from Mother,” including inaccurate information regarding the parties’ income, out-of-pocket health insurance premiums and child care expenses, and that the trial court should have applied a deviation under
{¶ 75} As stated above, a trial court abuses its discretion when it applies the wrong legal standard. Although given the absence of a transcript, we cannot find error with the trial court‘s factual findings, we can still review the trial court‘s final judgment for legal errors.
{¶ 76} In this case — as stated in the trial court‘s September 25, 2020 judgment entry — the trial court applied
{¶ 77}
In any action in which a court child support order is issued or modified * * * the court * * * shall calculate the amount of the parents’ child support and cash medical support in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of Chapter 3119. of the Revised Code. The court or agency shall specify the support obligation as a monthly amount due and shall order the support obligation to be paid in periodic increments as it determines to be in the best interest of the children. In performing its duties under this section, the court or agency is not required to accept any calculations in a worksheet prepared by any party to the action or proceeding.
{¶ 78} When the combined annual income of both parents is greater than the maximum annual income listed on the basic child support schedule, however, the standard child support guidelines set forth in
If the combined annual income of both parents is greater than the maximum annual income listed on the basic child support schedule established pursuant to section 3119.021 of the Revised Code, the court, with respect to a court child support order, * * * shall determine the amount of the obligor‘s child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents. The court or agency shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined annual income equal to the maximum annual income listed on the basic child support schedule established pursuant to section 3119.021 of the Revised Code, unless the court or agency determines that it would be unjust or inappropriate and therefore not in the best interest of the child, obligor, or obligee to order that amount. If the court * * * makes such a determination, it shall enter in the journal the figure, determination, and findings. * * *
{¶ 79} Effective March 28, 2019, the basic child support schedule established pursuant to
{¶ 80} Here, the parents’ combined annual income exceeds $336,467.04. Although they contain different income figures, both the parties’ stipulations filed on January 31, 2020 and the child support worksheet attached to and incorporated within the trial court‘s September 25, 2020 final judgment entry list a combined annual income for the parents of over $460,000. There is, however, no indication in the final judgment entry that the trial court complied with
{¶ 82} Because, as evident from the face of the trial court‘s September 25, 2020 final judgment entry, the trial court applied the wrong legal standard in determining the amount of Father‘s child support obligation, we find that the trial court abused its discretion in ordering Father to pay $2,444.83 in monthly child support. The trial court‘s child support order is reversed and the matter is remanded for the trial court to determine the amount of Father‘s child support obligation, considering the needs and the standard of living of the children and of the parents, in accordance with
{¶ 83} Father‘s fourth assignment of error is sustained to the extent it relates to the trial court‘s child support order.
Evidentiary Rulings and Orders Relating to GAL
{¶ 85} Father does not specifically identify in his brief what evidence he sought to present at the hearing, but was precluded from presenting, other than to state that he wanted to introduce evidence of “a report of child negligence and injury to C.T.C., which occurred on 10/29/2013 at Mother‘s residence” and evidence of the parties’ background and circumstances prior to the shared parenting plan in March 2013.
{¶ 86} As a general matter, a trial court has wide discretion in the admission and exclusion of evidence and a trial court‘s decision regarding the admissibility of evidence will not be reversed absent a clear showing of abuse of that discretion and material prejudice to the appellant. See, e.g., Kinas v. Kinas, 8th Dist. Cuyahoga No. 98965, 2013-Ohio-3237, ¶ 35. In any event, without a transcript showing what evidence was introduced and what evidence was excluded at the hearing, we must
{¶ 87} Furthermore, an appellant‘s brief must include “[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.”
{¶ 88} Father‘s mere identification of motions he contends were improperly decided in this assignment of error and his conclusory assertions in his brief that the trial court‘s rulings “infringe[d] on [his] constitutional rights,” “prevented [M]other from having to defend herself against [F]ather‘s allegations or narratives” and allowed the GAL “to present the court with unbalanced and incorrect perspectives of the circumstances of the children and their parents” without any explanation, citation to the record or citation to legal authority supporting his assertions, do not satisfy Father‘s obligations under
{¶ 89} An appellate court is “not obliged to construct or develop arguments” to support an appellant‘s assignment of error and “will not ‘guess at undeveloped claims on appeal.‘” State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 56 (8th Dist.), quoting State v. Piatt, 2020-Ohio-1177, 153 N.E.3d 573, ¶ 39 (9th Dist.), quoting McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio-7190, ¶ 31. “If an argument exists that can support this assigned error,
{¶ 90} Accordingly, Father‘s sixth assignment of error is overruled.
Court Costs
{¶ 91} In his seventh and final assignment of error, Father argues that the trial court erred and abused its discretion in ordering him to pay court costs because the trial court‘s order “is not in compliance with [R.C.] 3105.73(B).”
In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage * * *, the court may award all or part of reasonable attorney‘s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.
{¶ 92} Father contends that it was “not just and equitable” for the trial court “to punish [F]ather for litigation by assigning court fees to him” because the litigation “did not improve the circumstances of the children but made it worse” and because Father has “been placed in financial hardship” as a result of the litigation.
{¶ 93} In this case, the trial court ordered Father to pay “costs” pursuant to
{¶ 94}
{¶ 95} In this case, Mother was the prevailing party on her motion to terminate the shared parenting plan and to modify the parenting time schedule — the motion at the heart of this matter. The record reflects that Father filed numerous unsuccessful motions during the course of the proceedings. Based on the record before us, we cannot say that the trial court abused its discretion in ordering Father to pay court costs. Father‘s seventh assignment of error is overruled.
{¶ 96} The trial court‘s child support order is reversed and the matter is remanded for the trial court to determine the amount of Father‘s child support obligation, considering the needs and the standard of living of the children and of the parents, in accordance with
{¶ 97} Judgment affirmed in part; reversed in part; remanded.
It is ordered that appellant and appellee shared the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_______________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR
Notes
(A) In any action or proceeding in which a child support order is issued or modified, the court, with respect to court child support orders, * * * shall determine the person or persons responsible for the health care coverage of the children subject to the child support order and shall include provisions for the health care coverage of the children in the child support order. The order shall specify that the obligor and obligee are both liable for the health care expenses for the children who are not covered by private health insurance according to a formula established by each court, with respect to a court child support order[.] * * *
(C) When a child support order is issued or modified, the order shall include a cash medical support amount consistent with division (B) of section 3119.302 of the Revised Code for each child subject to the order. The cash medical support amount shall be ordered based on the number of children subject to the order and split between the parties using the parents’ income share.