[Cite as Downing v. Downing, 2015-Ohio-459.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Tiffany Downing Court of Appeals No. E-13-044
Appellee Trial Court No. 2010-DR-0115
v.
Amos Downing, et al.
Defendants DECISION AND JUDGMENT
[William Bartle & Erin Bartle-Appellants] Decided: February 6, 2015
*****
Tiffany Downing, pro se.
James L. Murray, for appellants.
***** SINGER, J.
{¶ 1} Appellants, William and Erin Bartle, appeal from a judgment of the Erie
County Court of Common Pleas, Domestic Relations Division, denying their motion for
court ordered visitation with their grandchildren. This court affirms. {¶ 2} Appellee, Tiffany Downing, filed for divorce from her husband, Amos
Downing, on June 25, 2010. The parties have two young sons. On August 2, 2010,
Amos Downing’s parents, appellants, filed a motion for a permanent order granting them
visitation rights with their grandsons. Following a two day hearing, their motion was
denied. Appellants now appeal setting forth the following assignments of error:
I. Whether [the trial judge’s] 7-19-2013 decisions demonstrate an
attitude which was arbitrary, unreasonable or unconscionable as a result to
false statements made by plaintiff’s counsel designed to disparage the
Bartles in the eyes of the court.
II. Whether the 7-19-2013 judgment entry terminating the Bartle’s
visitation and denying a permanent order for visitation was in the best
interests of the minor children [A.W.] and [S.D.]. Was this decision against
the manifest weight of the evidence?
III. Whether a shared parenting plan can be used as the basis for
denial of visitation under R.C. 3109.051. Did [the trial judge] err in finding
as a matter of law that a court cannot approve a shared parenting plan until
it rules on motions for grandparent/companionship visitation pursuant to
R.C. §3109.04?
IV. Whether the GAL’s recommendation that the paternal
grandparents not be granted court ordered visitation was improperly
influenced by his dual role as mediator as well as GAL, and by his failure
2. to properly conduct an investigation as to whether the Bartle’s visitation
was in the children’s best interests. Was the GAL’s recommendation based
upon his personal view as to what the relationship should be in a post-
divorce “family” as opposed to what was in the best interests of these
children based on the facts of this case. The GAL and the court confused
parenting and visitation time and erroneously construed the Bartle’s motion
as one for parenting time when it was in fact for visitation.
{¶ 3} We will consider appellants’ detailed assignments of error together as they
all turn on the same question: whether or not the trial court abused its discretion in
denying appellants court ordered visitation.
{¶ 4} We begin our analysis with R.C. 3109.051(B) which provides that a trial
court may grant reasonable visitation rights to grandparents if the court determines that
such visitation is in the child’s best interests. The trial court has broad discretion as to
visitation issues, and its decision will not be reversed absent an abuse of discretion, such
that the decision is unreasonable, arbitrary or unconscionable. Anderson v. Anderson,
147 Ohio App.3d 513, 771 N.E.2d 303 (7th Dist.2002). When determining whether to
grant visitation rights to a grandparent, the trial court is required to consider the 16
factors listed in R.C. 3109.051(D):
(1) The prior interaction and interrelationships of the child with
the child’s parents, siblings, and other persons related by consanguinity
3. or affinity, and with the person who requested companionship or
visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent
and the distance between those residences, and if the person is not a
parent, the geographical location of that person’s residence and the
distance between that person’s residence and the child’s residence;
(3) The child’s and parents’ available time, including, but not
limited to, each parent’s employment schedule, the child’s school
schedule, and the child’s and the parents’ holiday and vacation
schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant
to division (C) of this section, regarding the wishes and concerns of the
child as to parenting time by the parent who is not the residential parent
or companionship or visitation by the grandparent, relative, or other
person who requested companionship or visitation, as to a specific
parenting time or visitation schedule, or as to other parenting time or
visitation matters, the wishes and concerns of the child, as expressed to
the court;
(7) The health and safety of the child;
4. (8) The amount of time that will be available for the child to
spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting
time and to facilitate the other parent’s parenting time rights, and with
respect to a person who requested companionship or visitation, the
willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether 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 * * *;
(12) In relation to requested companionship or visitation by a
person other than a parent, whether the person 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 * * *;
(13) 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;
(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
5. (15) In relation to requested companionship or visitation by a
person other than a parent, the wishes and concerns of the child’s
parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶ 5} At the time of the hearing, the children were ages nine and seven. It is
undisputed that appellants have spent a great deal of quality time with their grandchildren
from the day they were born. Appellants live in close proximity to their grandchildren
which further facilitates their involvement in their lives. Grandmother is a healthy retiree
without commitments on her time allowing her to always be available for the boys.
According to the guardian ad litem’s (“GAL”) report, the nine year old is well adjusted in
school while the seven year old has some behavioral difficulties. The court did not
interview the boys regarding their wishes noting that it appeared obvious the boys
enjoyed being with their grandparents. Moreover, the court found that the boys’ interests
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[Cite as Downing v. Downing, 2015-Ohio-459.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Tiffany Downing Court of Appeals No. E-13-044
Appellee Trial Court No. 2010-DR-0115
v.
Amos Downing, et al.
Defendants DECISION AND JUDGMENT
[William Bartle & Erin Bartle-Appellants] Decided: February 6, 2015
*****
Tiffany Downing, pro se.
James L. Murray, for appellants.
***** SINGER, J.
{¶ 1} Appellants, William and Erin Bartle, appeal from a judgment of the Erie
County Court of Common Pleas, Domestic Relations Division, denying their motion for
court ordered visitation with their grandchildren. This court affirms. {¶ 2} Appellee, Tiffany Downing, filed for divorce from her husband, Amos
Downing, on June 25, 2010. The parties have two young sons. On August 2, 2010,
Amos Downing’s parents, appellants, filed a motion for a permanent order granting them
visitation rights with their grandsons. Following a two day hearing, their motion was
denied. Appellants now appeal setting forth the following assignments of error:
I. Whether [the trial judge’s] 7-19-2013 decisions demonstrate an
attitude which was arbitrary, unreasonable or unconscionable as a result to
false statements made by plaintiff’s counsel designed to disparage the
Bartles in the eyes of the court.
II. Whether the 7-19-2013 judgment entry terminating the Bartle’s
visitation and denying a permanent order for visitation was in the best
interests of the minor children [A.W.] and [S.D.]. Was this decision against
the manifest weight of the evidence?
III. Whether a shared parenting plan can be used as the basis for
denial of visitation under R.C. 3109.051. Did [the trial judge] err in finding
as a matter of law that a court cannot approve a shared parenting plan until
it rules on motions for grandparent/companionship visitation pursuant to
R.C. §3109.04?
IV. Whether the GAL’s recommendation that the paternal
grandparents not be granted court ordered visitation was improperly
influenced by his dual role as mediator as well as GAL, and by his failure
2. to properly conduct an investigation as to whether the Bartle’s visitation
was in the children’s best interests. Was the GAL’s recommendation based
upon his personal view as to what the relationship should be in a post-
divorce “family” as opposed to what was in the best interests of these
children based on the facts of this case. The GAL and the court confused
parenting and visitation time and erroneously construed the Bartle’s motion
as one for parenting time when it was in fact for visitation.
{¶ 3} We will consider appellants’ detailed assignments of error together as they
all turn on the same question: whether or not the trial court abused its discretion in
denying appellants court ordered visitation.
{¶ 4} We begin our analysis with R.C. 3109.051(B) which provides that a trial
court may grant reasonable visitation rights to grandparents if the court determines that
such visitation is in the child’s best interests. The trial court has broad discretion as to
visitation issues, and its decision will not be reversed absent an abuse of discretion, such
that the decision is unreasonable, arbitrary or unconscionable. Anderson v. Anderson,
147 Ohio App.3d 513, 771 N.E.2d 303 (7th Dist.2002). When determining whether to
grant visitation rights to a grandparent, the trial court is required to consider the 16
factors listed in R.C. 3109.051(D):
(1) The prior interaction and interrelationships of the child with
the child’s parents, siblings, and other persons related by consanguinity
3. or affinity, and with the person who requested companionship or
visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent
and the distance between those residences, and if the person is not a
parent, the geographical location of that person’s residence and the
distance between that person’s residence and the child’s residence;
(3) The child’s and parents’ available time, including, but not
limited to, each parent’s employment schedule, the child’s school
schedule, and the child’s and the parents’ holiday and vacation
schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant
to division (C) of this section, regarding the wishes and concerns of the
child as to parenting time by the parent who is not the residential parent
or companionship or visitation by the grandparent, relative, or other
person who requested companionship or visitation, as to a specific
parenting time or visitation schedule, or as to other parenting time or
visitation matters, the wishes and concerns of the child, as expressed to
the court;
(7) The health and safety of the child;
4. (8) The amount of time that will be available for the child to
spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting
time and to facilitate the other parent’s parenting time rights, and with
respect to a person who requested companionship or visitation, the
willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether 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 * * *;
(12) In relation to requested companionship or visitation by a
person other than a parent, whether the person 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 * * *;
(13) 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;
(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
5. (15) In relation to requested companionship or visitation by a
person other than a parent, the wishes and concerns of the child’s
parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶ 5} At the time of the hearing, the children were ages nine and seven. It is
undisputed that appellants have spent a great deal of quality time with their grandchildren
from the day they were born. Appellants live in close proximity to their grandchildren
which further facilitates their involvement in their lives. Grandmother is a healthy retiree
without commitments on her time allowing her to always be available for the boys.
According to the guardian ad litem’s (“GAL”) report, the nine year old is well adjusted in
school while the seven year old has some behavioral difficulties. The court did not
interview the boys regarding their wishes noting that it appeared obvious the boys
enjoyed being with their grandparents. Moreover, the court found that the boys’ interests
were well protected by the GAL. There are no health or safety concerns regarding these
boys. They have grown up with an older, half-sister who resides with their mother.
Amos Downing briefly denied his parents visitation with the boys when his mother
expressed disapproval over his girlfriend. Grandmother testified that she and her son
sometimes have a strained relationship but she continues to support him. Neither
grandparent has a criminal record. There was no evidence that the grandparents have
ever infringed on either Downings’ court ordered parenting time. The grandparents have
no intentions of moving out of Ohio. Tiffany Downing opposed court ordered
6. grandparent visitation. She acknowledged that the grandparents love and care for her
children and that her children enjoy being with their grandparents. Her reason for
opposing court ordered visitation is that she believes the grandparents already see enough
of the children when they are spending their shared parenting time with their father.
Amos Downing supports a visitation order for his parents because he does not believe
that he is allotted enough time with his children under his shared parenting plan.
{¶ 6} R.C. 3109.051(D) (16) requires the trial court to consider any other factors
in the best interest of the children. The GAL recommended against court ordered
visitation with the grandparents, not because of any health or safety concerns, but
because it is apparent that the grandparents are already able to spend significant periods
of time with their grandchildren. When Amos Downing has the children pursuant to the
shared parenting agreement, the record shows that the grandparents often help their son
out with the care of the children because of his work schedule.
{¶ 7} It is clear that the grandparents in this case are loving, positive influences in
the lives of their grandchildren. However, due to the divorce of the parents, the
children are already disrupted by the fact that they are transferred between their parents
six times in a two week period. When their son is working or pursuing outside interests
during his shared parenting time, the grandparents regularly take over the care of the
children. In sum, this is not a case where the grandparents have been denied meaningful
contact. Quite the contrary.
7. {¶ 8} Having reviewed the entire record and in consideration of all of appellants’
numerous arguments, we cannot conclude that the trial court abused its discretion in
finding it to be in the best interests of the children to deny appellants court ordered
visitation. Appellants’ assignments of error are found not well-taken.
{¶ 9} Justice having been afforded the parties complaining, we affirm the
judgment of the Erie County Court of Common Pleas. We order appellants to pay the
costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Stephen A. Yarbrough, P.J JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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