Geier v. Swank

928 N.E.2d 1162, 186 Ohio App. 3d 497
CourtOhio Court of Appeals
DecidedFebruary 23, 2010
DocketNo. 09AP-670
StatusPublished
Cited by1 cases

This text of 928 N.E.2d 1162 (Geier v. Swank) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geier v. Swank, 928 N.E.2d 1162, 186 Ohio App. 3d 497 (Ohio Ct. App. 2010).

Opinion

French, Judge.

{¶ 1} Defendant-appellant and cross-appellee, Monica M. Swank, appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. Plaintiff-appellee and cross-appellant, Chris H. Geier, cross-appeals. For the following reasons, we affirm.

{¶ 2} On January 7, 2004, Chris filed a complaint to establish parental rights and responsibilities for the nonmarried parties’ minor child, Nicholas, who was born in 2003. When both parties were living in central Ohio, they filed with the court a shared-parenting plan naming Monica the school-placement parent and instituting phases that increased the parenting time for Chris. On May 26, 2006, Chris filed a motion to modify the parenting plan because Monica and her husband, Kevin, were moving 120 miles away to the Cleveland area. On June 1, 2006, Monica also filed a motion to modify parenting time. In April 2007, the court enacted a temporary plan. The phase in effect from the original plan allowed Chris alternating weekend and weeknight visits, and the temporary plan allowed alternating weekly visits instead. On June 4, 2007, Chris filed a motion to find Monica in contempt for denying him parenting time before implementation of the temporary plan, and he requested attorney fees associated with the motion.

{¶ 3} The court referred the matter to a magistrate, and a trial ensued in January 2008 at which Monica testified as follows. Monica became a stay-at-home mother when she gave birth to Nicholas. She takes Nicholas to all of his medical and therapy appointments. She and Kevin have referred to Chris by his first name when talking to Nicholas, but after admonition from the guardian ad litem, they referred to him as “Daddy Chris.” She conceded that Kevin also admitted this in his December 2006 deposition. Nicholas has bonded well with her infant daughter, and he gets upset when he realizes he will be away from her. She and her family moved to northern Ohio in June 2006 because Kevin was promoted. A salary increase was expected with the promotion, but exhibits showed that Kevin made less money in the year of his new job than the year before. Nicholas has made numerous friends in the new community. He attends a morning preschool, and he and Monica are active in a mother’s club. After the relocation, Monica drove Nicholas to and from Chris’s home for visits, and her daughter would accompany them. In January 2007, Monica stopped Chris’s weeknight visits because the driving was too demanding. Instead, she added time to Chris’s alternating weekend visits, and the parties exchanged the child at a halfway point. Although she executed these changes without first seeking court modification of the parenting plan, she thought that Chris agreed to the new arrangement. After the temporary schedule was enacted for alternating [500]*500weekly visits, Chris enrolled Nicholas in a daycare that would look after Nicholas while Chris was working, but Chris withheld information about the daycare.

{¶ 4} Chris testified as follows. Recently, he and Monica have only communicated by e-mail. Monica opposed DNA testing that ultimately established his paternity and contested changing Nicholas’s last name to include Geier. He has heard Monica and Kevin refer to him as “Chris,” rather than “daddy,” in conversations with Nicholas. Nicholas has called Chris by his first name, instead of “daddy,” when he is in the presence of Monica and Kevin. In contrast, Chris is supportive of Nicholas’s relationship with his mother. He denied withholding daycare information from her, and he felt “forced into” her decision to stop weeknight visits. He complained that after this change, there were “almost 12 to 13 days in between visits with me when Nicholas was accustomed to having * * * three or four days away from me.” Monica would often offer to make up for lost visitation time by asking him at 2:00 p.m. on a Friday before a scheduled weekend visit whether he was able to take Nicholas at 4:00 p.m. Depending on his obligations at work, at times he was able to accept the offer. When he was unable and would ask if he could return Nicholas two hours later on Sunday, Monica refused. Chris has previously contacted Nicholas’s pediatrician when the child was sick, Nicholas is covered under his health insurance, and he has agreed to pay for other health-related expenses.

{¶ 5} Chris’s fiancée, Tracy Rogers, testified as follows. Nicholas has made many friends and is adjusting well to daycare. Although Monica is having Nicholas treated for a physical tic that was believed to have developed as a result of consistently traveling for visitations, Tracy did not notice Nicholas with a tic. Chris encourages Nicholas to discuss his daily life with his mother, but when the parties exchange Nicholas for visitations, communication is minimal and Monica can be “dismissing” and “negative.”

{¶ 6} Dr. David Lowenstein performed a psychological evaluation on Nicholas and the parties and testified as follows. Nicholas developed a good relationship with both of his parents and their families, although Lowenstein was concerned about the parties’ inability to communicate effectively with each other. He also learned that Chris rarely spoke with Nicholas’s therapist and that Nicholas’s preschool in northern Ohio had not ever heard from Chris. He thought that Chris was concerned about Nicholas, however, and was impressed that Chris had set up a calendar for his son to keep track of time he spends in each parent’s home. Lowenstein did not observe any physical tics in Nicholas, but he did not discount that these had occurred. And in his psychological report, Lowenstein noted that Nicholas’s teachers reported that he was doing well and exhibiting no abnormal behavior.

[501]*501{¶ 7} The guardian ad litem recommended that Monica remain the school-placement parent. Although he did not approve of Monica’s moving to northern Ohio and expressed his reservations about the relocation, he recognized that Monica had been Nicholas’s “primary caregiver for the first five years of his life.”

{¶ 8} The parties discussed at trial Chris’s request for attorney fees. Chris’s counsel emphasized, “[W]e’re only seeking that portion which relates to the contempt. We’re not seeking an attorney fees award for litigation costs. I assume neither party is really going to do that in a case like this.”

{¶ 9} Chris proposed a parenting plan whereby he would serve as the school-placement parent, and Nicholas, upon starting kindergarten, would spend the school year primarily with Chris and school breaks and summer primarily with Monica. Along with changing the school-placement-parent designation, the plan proposed visiting time that contrasted from the originally agreed upon plan whereby the parties, upon Nicholas’s starting kindergarten, would generally have visits on alternating weekends and weeknights during the school year and alternating weeks during the summer. The magistrate accepted Chris’s modified plan and, although she denied Chris’s contempt motion, ordered Monica to pay him $7,500 in attorney fees. Monica objected to the magistrate’s decision to accept Chris’s parenting plan and to award attorney fees. The trial court sustained the objection to attorney fees and vacated the award. The court overruled objections pertaining to the modified parenting plan, however, and adopted that part of the magistrate’s decision. The court said that Monica’s move to northern Ohio constituted a change in circumstances necessitating the modification. The court concluded that the new “arrangement allows Nicholas to enjoy the close and positive relationships he has with both parents.

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Bluebook (online)
928 N.E.2d 1162, 186 Ohio App. 3d 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geier-v-swank-ohioctapp-2010.