Bruwier v. Bruwier

2016 Ohio 7568

• Court: Ohio Court of Appeals
• Decided: October 31, 2016
• Docket: 2016CA00072
• Status: Published

Opinion

[Cite as Bruwier v. Bruwier, 2016-Ohio-7568.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: TODD BRUWIER : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2016CA00072 JENNIFER BRUWIER : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2014DR00756

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: October 31, 2016

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JEREMY J. FOLTZ JENNIFER A. BRUWIER PRO SE 122 Central Plaza North 515 Bebb Ave. S.W. Canton, OH 44702 Massillon, OH 44647 Stark County, Case No. 2016CA00072 2

Gwin, J.,

{¶1} Appellant appeals the March 11, 2016 judgment entry of the Stark County

Court of Common Pleas, Domestic Relations Division, adopting appellee’s proposed

shared parenting plan.

Facts & Procedural History

{¶2} Appellant Todd Bruwier and appellee Jennifer Bruwier were married in

December of 2008. Appellant and appellee had three children: H.B., born December 14,

2008, B.B., born October 30, 2011, and M.B., born September 22, 2012. Appellant filed

a complaint for divorce on July 15, 2014. On September 2, 2014, appellee filed an answer

and counterclaim. Appellee was designated the temporary legal custodian of the three

children on September 23, 2014.

{¶3} In January of 2015, the trial court stayed the case due to appellant filing a

bankruptcy petition. The case was reactivated in June of 2015. A guardian ad litem was

appointed in August of 2015. Melissa Pitinii (“Pitinii”), the guardian ad litem, filed a report

in October of 2015. In her report, Pitinii completed an analysis of the factors contained in

R.C. 3109.04 and recommended appellant be named the residential parent. As of the

date of Pitinii’s first report, neither party had filed a proposed shared parenting plan.

{¶4} On November 30, 2015, appellee filed a proposed shared parenting plan.

Though the trial court stated in its later entry that appellant did not file a shared parenting

plan, according to the docket, appellant filed a proposed shared parenting plan on

January 19, 2016. Pitinii filed an updated report in January of 2016. She again went

through the factors contained in R.C. 3109.04. Due to the requests for shared parenting, Stark County, Case No. 2016CA00072 3

Pitinii recommended the parties enter into a shared parenting plan, wherein appellant is

named the residential parent for school purposes.

{¶5} The trial court held a hearing on January 26, 2016. Pitinii testified she

recommended shared parenting with appellant as the residential parent for school

purposes. Pitinii stated appellant was more stable because he is employed. Further,

Pitinii testified appellee was not working and did not take the whole custody issue very

seriously. Pitinii was concerned about appellee’s boyfriend being charged with a

misdemeanor drug possession, but had no concerns about appellee using drugs. Pitinii

testified her decision in this case is a close call, as the parties have worked well together

during the pendency of the case, with appellant receiving more visitation than ordered by

the trial court. While Pitinii was concerned about appellee’s stability, Pitinii stated she

had no concerns about appellee parenting the children. Pitinii also testified appellant has

never had custody of the children and is living with his girlfriend. Pitinii confirmed if

appellant receives custody of the children, his three children will be living with appellant,

his girlfriend, and her two children.

{¶6} Appellant testified he moved out of the martial home in March of 2014.

Currently, he has the children every Thursday through Sunday. Appellant believes he

should be the residential parent for school purposes because he has more stability as he

has a steady job, is in good health, and has no criminal record. Appellant lives with his

girlfriend and her two children. Appellant’s girlfriend owns the house he lives in and his

name is not on the deed. Appellant testified appellee has given him much more visitation

than ordered by the court. Stark County, Case No. 2016CA00072 4

{¶7} Appellee testified she lives in a rental home on which she has a lease.

Appellee stated she is extremely involved in her children’s lives. Appellee has no

problems with the visitation arrangement and wants it to continue. Appellee intends on

returning to work and has no health issues. Appellee testified that, throughout the

separation, she took care of everything for the children, including providing clothes and

groceries.

{¶8} The trial court issued a judgment entry on February 2, 2016. The trial court

found, pursuant to R.C. 3109.04(D)(1)(a), appellee’s proposed shared parenting plan did

not allocate parenting time with sufficient specificity and thus rejected appellee’s plan.

However, the trial court found shared parenting was in the best interest of the children.

The trial court ordered the parties to each, within thirty days, submit a proposed shared

parenting plan, considering Pitinii’s input and reflecting the trial court’s concerns.

Appellant filed a proposed shared parenting plan with himself as the residential parent for

school purposes and appellee filed a proposed shared parenting plan with herself as the

residential parent for school purposes.

{¶9} The trial court issued a judgment entry on March 11, 2016. In its entry, the

trial court stated the guardian ad litem recommended shared parenting and the parties

submitted proposed shared parenting plans as directed by the court. The trial court

further stated it reviewed both plans and found appellee’s plan to be in the best interest

of the children. The trial court adopted appellee’s proposed shared parenting plan with

appellee named as the residential parent for school purposes.

{¶10} Appellant appeals the March 11, 2016 judgment entry of the Stark County

Court of Common Pleas, Domestic Relations Division, and assigns the following as error: Stark County, Case No. 2016CA00072 5

{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE

SHARED PARENTING PLAN SUBMITTED BY THE APPELLEE NAMING APPELLEE

RESIDENTIAL PARENT, WHEN THE GUARDIAN AD LITEM UNEQUIVOCALLY

RECOMMENDED THAT APPELLANT BE NAMED RESIDENTIAL PARENT.

{¶12} II. THE TRIAL COURT CLEARLY VIOLATED R.C. 3109.04(D)(1)(A)(ii)

WHEN IT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF

LAW AS TO THE REASONS IT DENIED APPELLANT’S PROPOSED SHARED

PARENTING PLAN.”

II.

{¶13} For ease of discussion, we will first address appellant’s second assignment

of error. In his second assignment of error, appellant argues the trial court violated R.C.

3109.04(D)(1)(a)(ii) and (iii) when it failed to make specific findings of fact and conclusions

of law as to the reasons it denied appellant’s proposed shared parenting plan and adopted

appellee’s proposed shared parenting plan.

{¶14} R.C. 3109.04(D)(1)(a) provides, in pertinent part:

(ii) If each parent * * * files a separate plan, the court shall review each plan

filed to determine if either is in the best interest of the children. If the court

determines that one of the filed plans is in the best interest of the children,

the court may approve the plan * * * if the court approves a plan under this

division * * * the court shall enter in the record of the case findings of fact

and conclusions of law as to the reasons for the approval or the rejection or

denial. * * * Stark County, Case No. 2016CA00072 6

(iii) if only one parent * * * files a plan, the court * ** may approve the plan *

* * the court enter in the record of the case findings of fact and conclusions

of law as to the reasons for the approval or the rejection or denial.

Further, in determining the best interest of a child, the court shall consider all relevant

factors contained in R.C. 3109.04(F).

{¶15} As this Court stated in Phillips v. Phillips, 5th Dist. Stark Nos.

2004CA00105, 2004CA00005, 2005-Ohio-231, “when the allocation of parental rights

and responsibilities is contested, before approving or adopting a shared parenting plan,

the trial court is required to make findings of fact and conclusions of law, pursuant to R.C.

3109.04(D)(1)(a)(ii) and (iii)” and “to determine whether the plan is in the best interest of

the children.” However, a trial court may substantially comply with these statutes if there

are sufficient findings of fact and conclusions of law to permit this Court to conduct a

meaningful review. Haynes v. Haynes, 5th Dist. Coshocton No. 2010-CA-01, 2010-Ohio-

5801.

{¶16} We find this case analogous to Phillips. The trial court ordered the parties

to submit proposed shared parenting plans. However, in its judgment entry, the trial court

stated only that it “has reviewed the proposed Shared Parenting Plans and finds that the

attached Plan is in the best interests of the children.” The trial court failed to articulate

any findings of fact or conclusions of law pursuant to R.C. 3109.04(D)(1)(a)(ii) and (iii) as

to why it adopted appellee’s proposed shared parenting plan or how it analyzed the

factors contained in R.C. 3109.04(F). There are not sufficient findings of fact and

conclusions of law to permit this Court to conduct a meaningful review. Stark County, Case No. 2016CA00072 7

{¶17} While appellant suggests the trial court could not disregard Pitinii’s

recommendation that appellant be named the residential parent, this Court has previously

held that a trial court has discretion to follow or reject the recommendations of a guardian

ad litem. Wine v. Wine, 5th Dist. Delaware No. 04 CA F 10 068, 2005-Ohio-975;

Hammons v. Hammons, 5th Dist. Delaware No. 13 CAF 07 0053, 2014-Ohio-221.

However, as noted above, there are not sufficient findings of fact and conclusions of law

to permit this Court to conduct a meaningful review as to whether the trial court abused

its discretion in adopting the proposed shared parenting plan submitted by appellee and

denying the plan submitted by appellant.

{¶18} Appellant’s second assignment of error is sustained. Based on our

disposition of appellant’s second assignment of error, we find appellant’s first assignment

of error is moot because there are not sufficient findings of fact and conclusions of law for

this Court to review whether the trial court abused its discretion in adopting appellee’s

proposed shared parenting plan. The judgment of the Stark County Court of Common

Pleas, Domestic Relations Division, is reversed and remanded for further proceedings

consistent with this opinion.

By Gwin, J.,

Farmer, P.J., and

Wise, J., concur

WSG:clw 1013