Fisher v. Hasenjager

876 N.E.2d 546, 116 Ohio St. 3d 53
CourtOhio Supreme Court
DecidedOctober 25, 2007
DocketNos. 2006-1815 and 2006-1853
StatusPublished
Cited by178 cases

This text of 876 N.E.2d 546 (Fisher v. Hasenjager) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Hasenjager, 876 N.E.2d 546, 116 Ohio St. 3d 53 (Ohio 2007).

Opinions

Moyer, C.J.

{¶ 1} The Third District Court of Appeals has certified this case pursuant to Section 3(B)(4), Article TV, Ohio Constitution and App.R. 25. The Third District found its judgment to be in conflict with the judgments of the Twelfth District Court of Appeals in Schoettle v. Bering (Apr. 22, 1996), Brown App. No. CA9507-011, 1996 WL 189027, and Fisher v. Campbell (June 23, 1997), Butler App. No. CA96-11-248, 1997 WL 349013, on the following issue: “Is a change in the designation of residential parent and legal custodian of children a ‘term’ of a court approved shared parenting decree, allowing the designation to be modified solely on a finding that the modification is in the best interest of the children pursuant to R.C. 3109.04(E)(2)(b) and without a determination that a ‘change in circumstances’ has occurred pursuant to R.C. 3109.04(E)(1)(a)?” The answer to this question is “no.”

{¶ 2} The facts in this case are not in dispute. Appellant and appellee share custody of their daughter. In 2003, the parties entered into a shared-parenting arrangement, in which parental rights and responsibilities were shared equally, and a detailed visitation schedule was established. The trial court accepted the parties’ arrangement and issued an order approving the agreement. However, in 2005, appellant and appellee both moved to become the sole residential parent and legal custodian of the child.

{¶ 3} In response to the parties’ motions, the trial court held a hearing at which both parties testified as to problems with one another and with the parenting arrangement. The trial court found that the parties had requested, and that it was in the child’s best interest, to terminate the shared-parenting plan. The trial court also stated, “The court in allocating parental rights and responsibilities has also considered the criteria under Section 3109.[04](F)(l)(a) through (j) and other relevant factors in reaching its decision. [Appellee] is hereby designated the residential parent and legal custodian of the parties [sic] minor child.”

{¶ 4} Appellant appealed the trial court’s decision. Appellant argued that because the trial court did not properly find that a substantive change in circumstances had occurred, the trial court could not modify appellant’s status as a residential parent and legal custodian. The court of appeals noted that the trial court failed to cite the statutory section on which it relied in deciding the parties’ motions. The court of appeals then analyzed the different statutory provisions permitting termination and modification of a shared-parenting agreement.

{¶ 5} The court of appeals examined four statutory sections: R.C. 3109.04(E)(1)(a), which requires a court to find a change in the circumstances of the child, residential parent, or either parent subject to the shared-parenting [55]*55decree before modifying a decree allocating parental rights and responsibilities; R.C. 3109.04(E)(2)(a), which permits parents to jointly modify the terms of a shared-parenting plan by filing the modifications with the court, if the court finds that the modifications are in the best interest of the child; R.C. 3109.04(E)(2)(b), which permits a court to modify the terms of a shared-parenting plan upon its own motion if the court finds that the modifications are in the best interest of the child; and R.C. 3109.04(E)(2)(c), which permits the termination of a shared-parenting plan if the court finds that shared parenting is not in the best interest of the child.

{¶ 6} Despite the trial court’s language “terminating” the parties’ shared-parenting plan, the court of appeals reviewed the parties’ motions and the trial court’s entry and determined that the trial court had not terminated the parties’ shared-parenting plan but instead had modified the plan. As a result, the court of appeals determined that R.C. 3109.04(E)(2)(c) did not apply. Further, because the parties did not jointly move to modify their shared-parenting decree, R.C. 3109.04(E)(2)(a) also was not applicable.

{¶ 7} In order to determine whether R.C. 3109.04(E)(1)(a) or 3109.04(E)(2)(b) controlled, the court of appeals analyzed other appellate decisions interpreting the two statutes. The court of appeals noted that some courts apply R.C. 3109.04(E)(1)(a), instead of 3109.04(E)(2)(b), “when the modification of the shared parenting agreement is ‘substantial’ or ‘substantially’ changes the allocation of parental rights and responsibilities.” Fisher v. Hasenjager, 168 Ohio App.3d 321, 2006-Ohio-4190, 859 N.E.2d 1022, at ¶29. Other courts have applied R.C. 3109.04(E)(1)(a), instead of 3109.04(E)(2)(b), only “when the modification to the plan affects ‘an allocation of parental rights and responsibilities.’ ” Id. at ¶ 30. The court of appeals also examined two cases that allowed modifications to a shared-parenting plan under R.C. 3109.04(E)(2) on the trial court’s own motion.

{¶ 8} After noting other courts’ treatments of the distinctions between R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b), the court of appeals reached a different decision: “While we recognize that some of our sister appellate districts require trial courts to apply R.C. 3109.04(E)(1)(a) when the proposed modifications to the shared parenting plan change the allocation of parental rights and responsibilities, are substantial modifications, or substantially change the parental rights and responsibilities, we specifically find that trial courts are able to modify the terms of the shared parenting plan under R.C. 3109.04(E)(2)(a), either on its own motion or on the request of one or both of the parents subject to a shared parenting plan as long as the modifications are in the best interest of the child.” Fisher at ¶ 35.

{¶ 9} The court of appeals then examined the definition of “terms” in R.C. 3109.04(E)(2)(b) to determine whether a change in the residential parent and legal custodian of a child qualified as a “term” of a shared-parenting plan. [56]*56“While some districts have concluded that some modifications, such as a change in the amount of child support, or who provides transportation, are modifications to the ‘terms’ of a shared parenting plan, we find that the General Assembly’s use of the word ‘terms’ in R.C. 3109.04(E)(2)(b) shows its intent to allow trial courts to modify all provisions incorporated in a shared parenting plan.” (Citations omitted.) Fisher at ¶ 36. The court concluded that the trial court was permitted to modify the shared-parenting plan with respect to the residential parent and legal custodian of the child under R.C. 3109.04(E)(2)(b) and that the trial court did not abuse its discretion in naming appellee as the resident parent and legal custodian of the parties’ child.

{¶ 10} We accepted jurisdiction over this discretionary appeal and also determined that a conflict exists as to the proper application of R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b) with respect to the modification of the designation of residential parent and legal custodian of a child.

{¶ 11} Once a shared-parenting decree has issued, R.C. 3109.04(E) governs modification of the decree:

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Bluebook (online)
876 N.E.2d 546, 116 Ohio St. 3d 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-hasenjager-ohio-2007.