[Cite as Hawbecker v. Hawbecker, 2016-Ohio-5740.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: WILLIAM E. HAWBECKER, JR. : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 16-CA-9 COURTNEY R. HAWBECKER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 2013 DR 00107
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 2, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID POSTON NICHOLAS GRILLI 155 E. Columbus St. Ste. 160 144 E. Main Street/P.O. Box 667 Pickerington, OH 43147 Lancaster, OH 43130 Fairfield County, Case No. 16-CA-9 2
Gwin, J.
{¶1} Appellant appeals the March 2, 2016 judgment entry of the Fairfield County
Court of Common Pleas, Domestic Relations Division, overruling her objections to the
magistrate’s decision and entering a decree of divorce.
Facts & Procedural History
{¶2} Appellant Courtney Hawbecker (“Wife”) and appellee William Hawbecker,
Jr. (“Husband”) were married on October 24, 2009. They had one child together, M.H.,
born on August 12, 2012. The parties separated on April 12, 2012. Husband filed a
complaint for divorce on March 7, 2013. Wife filed an answer and counterclaim on March
22, 2013. Temporary orders were issued on April 23, 2013 and, effective April 11, 2013,
Husband was ordered to pay $1,000 per month to Wife in spousal support and $1,109.93
to Wife in child support. Husband filed a shared parenting plan on November 7, 2013.
{¶3} A magistrate held a trial on May 8, 2014 and June 13, 2014. The parties
filed stipulations on June 13, 2014 agreeing to the admissibility of the Guardian Ad Litem
reports and stipulating to the introduction into evidence of Husband’s Exhibits 1-13 and
Wife’s Exhibits A-O.
{¶4} The Guardan Ad Litem for M.H., Ralph Silvestri, Jr. (“Silvestri”) testified
M.H. is a very happy child and both parents are bonded with her. He found both Husband
and Wife had appropriate homes and had no concerns with either parent. Silvestri
believes M.H. would benefit from preschool for social interaction. Silvestri testified shared
parenting with equal parenting time would be his recommendation for M.H. Silvestri
stated Father’s proposed shared parenting plan is something he thinks is in the child’s Fairfield County, Case No. 16-CA-9 3
best interest because M.H. does not have to go more than a couple of days at a time
without seeing either parent.
{¶5} When asked about which parent should be the residential parent for school
placement purposes, Silvestri stated he would rather wait three years to decide on such
a placement, but understood the need for finality of the case. However, Silvestri
acknowledged any decision as to the residential parent for school placement could be
modified with a change of circumstances. Weighing in Father’s favor is the fact that he
is in the marital home, his stability, and his roots in the community. Weighing in Mother’s
favor is that she has been the primary caregiver for M.H. since she was born. If Silvestri
had to pick, he stated Father being more stable might tip the balance in his direction.
{¶6} Wife testified M.H. has lived with her since birth. Father requested a
paternity test after M.H. was born. Wife stated during the first few months, Father did not
visit very much, but would call and text about M.H. From when M.H. was three months
old to March of 2013, Father had no set regular visits with M.H., but Wife and M.H. would
spend the night at the marital home pretty close to every week-end. M.H. did not have
any visits alone with Father until Father filed the complaint for divorce. Wife stated Father
has been at every doctor’s appointment for M.H. since she was born except two. Wife
testified that since the divorce was filed, Father has, for the most part, followed visitation
as the court ordered; however, he only took her overnight on Wednesday twice despite
being permitted to keep her every Wednesday overnight. Wife stated it would be in the
child’s best interest for her to be the residential parent for school purposes.
{¶7} Wife works at a wellness club. For a while, Wife had a fixed work schedule,
but now has a flexible schedule. Wife does not have set hours as her hours vary, but she Fairfield County, Case No. 16-CA-9 4
works at least twenty-six (26) hours per week and usually works closer to thirty-two hours
(32) per week. Wife testified M.H. goes with her to work and there is a play area for her
there. Wife is considering home-schooling M.H., but she is not opposed to private school.
Wife stated she nets approximately $1,000 per month selling product and then has to pay
expenses. She does not intend to get another job for the indefinite future, but hopes to
sell more outside of the wellness club. Wife is not interested in sending M.H. to preschool
or daycare because she does not believe either is required for socialization. Wife believes
M.H. should be with a parent when she can be and does not want her to go to preschool
even a few days a week. Wife is concerned about Husband’s extensive travel.
{¶8} Wife did not file taxes in 2013 as she requested a continuance. Her rough
estimate of sales, after expenses, for 2013 is approximately $7,000. Thus, when she files
taxes for 2013, she will be paying taxes on approximately $7,000. Wife previously worked
at Verizon and made $42,752.07 in 2007 and $40,887 in 2008.
{¶9} Wife testified her name is not on the deed or the mortgage of the marital
home. She does not know where the down payment came from for the house, but she
did not put any of her personal savings or checking in for it. She has never made a
mortgage payment, or made a payment for taxes, insurance, or utilities. Wife stated she
and Husband never had joint bank accounts during the marriage. Wife testified she is
aware there was $37,000 in the Columbus Metro Account when Husband married her.
{¶10} Husband has worked for Defense Finance and Accounting Service for
twenty years and, in 2013, made approximately $130,000. He has flexible start times.
He can take off during the day and can work from home. He currently works from home
two to three days per week, but can work up to four days a week from home. Husband Fairfield County, Case No. 16-CA-9 5
travels approximately once per month, but generally has flexibility on when he travels.
Husband testified he travelled sixteen times last year and most trips were one to two days
each. Husband is willing to pay for daycare/preschool, even if Wife wants to use it on the
days she has M.H.
{¶11} Husband testified he did not visit M.H. in the first few months because Wife
would not let him see M.H. When he tried to see M.H. early on, Wife limited him from
seeing her and would not allow him to see the child by himself; he was only allowed to
see the child when Wife was present. As to visitation since the divorce complaint was
filed, Husband testified he has exercised all visitation except some Wednesday night
overnights and he did not utilize all of these nights because he felt it was not fair to M.H.
to have to get up so early so he could drive her home and go to work by 9:00 a.m. as
Wife stated she had to be returned by this time.
{¶12} Husband testified he thinks it is in M.H.’s best interest for him to be the
residential parent for school purposes because of his flexible schedule and his stability.
Husband is concerned with Wife working and watching M.H. at the same time.
{¶13} The mortgage for the marital home is in Husband’s name only and Husband
testified he has made all the payments for the mortgage, utilities, taxes, and insurance.
Husband testified about several bank accounts in his name. Husband stated he had an
account at Columbus Metro Federal Credit Union prior to the marriage. Husband testified
Exhibit 12 is the statement from the Columbus Metro Federal Credit Union for October of
2009, near the time he married Wife. Husband testified, and Exhibit 12 reflected, that the
balance in the account on October 31, 2009 was $37,451.68. Exhibit 13 is the transaction
history of the Columbus Metro account starting on July of 2012 and ending on March 31, Fairfield County, Case No. 16-CA-9 6
2014 and showing the account did not go below $37,451.68 until November of 2013.
Husband testified he utilized the Columbus Metro account to accumulate savings and pay
for expenses. Husband testified he and Wife never had joint bank accounts or joint bills
during the marriage.
{¶14} The magistrate issued a decision on February 23, 2015. The magistrate
determined the marriage terminated on March 7, 2013. With regards to martial property
and debts, the magistrate noted Husband claimed several items were his separate
property, including the bank account with Columbus Metro. The magistrate found
Husband traced the amount of $37,451.68 in the Columbus Metro account as his
separate property through his testimony and Exhibits 12 and 13. Further, the magistrate
found that the balance in the account during the marriage never went below $37,451.68,
the amount in the account prior to the marriage. The magistrate found $14,319.25 of the
account was marital property, as there was $51,770.93 in the account as of February 28,
2013.
{¶15} With regards to spousal support, the magistrate went through each factor
contained in R.C. 3105.18(C) and determined Wife was entitled to spousal support of
$1,000 per month through July 31, 2014. In reviewing R.C. 3105.18(C)(l), the magistrate
considered the tax consequences to each party and noted spousal support would be
includable in Wife’s income for tax purposes and would be deductible by Husband for tax
purposes. After determining the amount of spousal support, the magistrate noted that
Husband had been paying temporary spousal support to Wife since April 11, 2013 and
ordered that if Husband overpaid spousal support, such overpayment should be offset
against Wife’s share of the marital portion of the bank accounts. Fairfield County, Case No. 16-CA-9 7
{¶16} As to the custody of M.H., the magistrate went through each factor
contained in R.C. 3109.04(F). Based upon the review of these factors, the magistrate
concluded shared parenting with equal parenting time is in the best interest of M.H.
{¶17} The magistrate further found, pursuant to R.C. 3109.04(G), the shared
parenting plan has to designate a school placement parent. The magistrate found due to
Husband’s stability, it is in the best interests of M.H. for Husband to be the residential
parent for school enrollment purposes.
{¶18} On March 23, 2015, Wife filed supplemental objections to the magistrate’s
decision. Husband filed a response to Wife’s objections on May 12, 2015.
{¶19} On March 2, 2016, the trial court entered a judgment entry overruling Wife’s
objections to the magistrate’s decision and issued a decree of divorce. The trial court
found the magistrate appropriately determined Husband traced his separate property in
the Columbus Metro account based upon the evidence presented. The trial court further
found the magistrate did not err in offsetting any overpayment in spousal support against
a property settlement because Wife’s income at the time of trial according to her testimony
was such that she would not have paid any tax on the spousal support she received. The
trial court found no error in the magistrate’s findings of fact or application of the law in
determining which parent to designate as the school placement parent or the
determination of equal parenting time. However, the trial court clarified that Husband is
the residential parent for school placement purposes only, and the shared parenting plan
shall not state he is the legal custodian for school placement purposes.
{¶20} Wife appeals the judgment entry of the Fairfield County Court of Common
Pleas, Domestic Relations Division, and assigns the following as error: Fairfield County, Case No. 16-CA-9 8
{¶21} “I. THE TRIAL COURT’S FINDING THAT $37,451.68 OF APPELLEE’S
COLUMBUS METRO FEDERAL CREDIT UNION ACCOUNT WAS APPELLEE’S
SEPARATE PROPERTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND IN ERROR.
{¶22} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT OFFSET APPELLEE’S SPOUSAL SUPPORT OBLIGATION AGAINST
APPELLANT’S DISTRIBUTION OF MARITAL ASSETS.
{¶23} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DESIGNATING APPELLEE THE RESIDENTIAL PARENT FOR PURPOSES OF
SCHOOL PLACEMENT.
{¶24} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
AWARDING APPELLEE EQUAL PARENTING TIME WITH THE MINOR CHILD.
{¶25} “V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DEVIATING CHILD SUPPORT FROM THE GUIDELINE ORDER.”
I.
{¶26} Wife argues the trial court’s finding that $37,251.68 of Husband’s Columbus
Metro Federal Credit Union account was Husband’s separate property was against the
manifest weight of the evidence. Wife specifically contends there was not sufficient
evidence to support the trial court’s finding that this separate property was maintained
and traceable. We disagree.
{¶27} Pursuant to R.C. 3105.171, a court may award a party his or her separate
property without impacting the equitable division of property. Separate property is defined
by R.C. 3105.171(A)(6)(a) and includes any real or personal property, or interest in such, Fairfield County, Case No. 16-CA-9 9
that was acquired by one spouse prior to the date of the marriage. Neville v. Neville, 3d
Dist. Marion No. 9-08-37, 2009-Ohio-3817.
{¶28} The statute goes on to state, “[t]he commingling of separate property with
other property of any type does not destroy the identity of the separate property as
separate property, except when the separate property is not traceable.” R.C.
3105.171(A)(6)(b). Therefore, traceability is the primary issue in determining whether
separate property has become marital property due to commingling. Oliver v. Oliver, 5th
Dist. Tuscarawas No. 2012 AP 11 0067, 2013-Ohio-4389.
{¶29} A party who wishes to have a particular asset classified as separate
property has the burden of proving, by a preponderance of the evidence, that the asset
is separate property. Id. It was thus Husband’s responsibility to prove the property
existed prior to the marriage and that it was traceable. Id.
{¶30} The characterization of property as separate or marital is a mixed question
of law and fact, and the trial court’s ruling must be supported by sufficient credible
evidence. Globokar v. Globokar, 5th Dist. Stark No. 2009CA00138, 2010-Ohio-1737. We
will not reverse the trial court’s judgment as being against the manifest weight of the
evidence if some competent, credible evidence supports the court’s judgment. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). “Trial court
decisions on what is presently separate and marital property are not reversed unless
there is a showing of an abuse of discretion.” Vonderhaar-Ketron v. Ketron, 5th Dist.
Fairfield No. 10CA22, 2010-Ohio-6593.
{¶31} The trier of fact is vested with the authority to weigh the evidence and
assess the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d Fairfield County, Case No. 16-CA-9 10
212 (1967). The trial court is the fact finder and is free to believe all, some, or none of
the testimony regarding any particular asset. The trier of fact “has the best opportunity to
view the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d
1159 (1997).
{¶32} In this case, Wife challenges the trial court’s finding that Husband had
sufficiently traced $37,251.68 from his separate account and granting Husband credit for
the same. At the hearing, both Husband and Wife testified they did not have any joint
bank accounts. Husband testified he had $37,251.68 in the Columbus Metro account as
of October 31, 2009, just prior to the parties’ marriage. Husband also submitted Exhibit
12, an account history from the account, showing the balance of the account on October
31, 2009 was $37,251.68. Exhibit 13, submitted by Husband, was the transaction history
of the Columbus Metro account and demonstrated the balance in the account did not drop
below $37,251.68 until November of 2013, after the marriage ended. Wife testified she
was aware there was approximately $37,000 in the Columbus Metro account when
Husband married her.
{¶33} Based on the foregoing, we find the trial court did not err in finding Husband
had sufficiently traced the $37,251.68 portion of the Columbus Metro account. Whether
or not Husband’s testimony was unreliable was an issue for the trial court as trier of fact.
Clearly, the trial court found Husband’s testimony, in conjunction with Exhibits 12 and 13,
to be credible. Further, Wife failed to offer evidence contrary to Husband’s assertions
regarding the balance in the account on the date of marriage and/or the fact the account
did not go below this number during the marriage. The trial court assigned the amount Fairfield County, Case No. 16-CA-9 11
over the $37,251.68 in the account as marital property. Accordingly, there is competent
and credible evidence to support the trial court’s determination. Wife’s first assignment
of error is overruled.
II.
{¶34} In her second assignment of error, Wife argues the trial court erred and
abused its discretion when it offset any overpayment of spousal support to Wife against
the property award.
{¶35} A review of the trial court’s decision relative to spousal support is governed
by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d
1293 (1981). We cannot substitute our judgment for that of the trial court unless, when
considering the totality of the circumstances, the trial court abused its discretion.
Holcomb v. Holcomb, 44 Ohio St.3d 128, 514 N.E.2d 597 (1989). In order to find an
abuse of discretion, we must determine the trial court’s decision was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983).
{¶36} Wife cites this Court’s decision in Miller v. Miller, 5th Dist. Coshocton No.
06 CA 3, 2006-Ohio-7019, in support of her argument. In Miller, the trial court stated in
its judgment entry and decree of divorce that the “spousal support award is made in
consideration of Husband continuing to pay and satisfy the debts incurred to purchase
the Wife’s home and automobile.” Id. We cited the mandate included in R.C.
3105.171(C)(3) that the court provide for an equitable division of marital property prior to
making any award of spousal support and found the language used by the trial court Fairfield County, Case No. 16-CA-9 12
unreasonably conditioned spousal support on the appellee’s debt responsibilities and
violated legislative intent. Id.
{¶37} However, in this case, the trial court reviewed and made the marital property
and debt distribution without regards to spousal support and determined the award of
spousal support with the factors contained in R.C. 3105.18(C) without any consideration
of the distribution of the marital property. There is no indication in the judgment entry that
the trial court allowed its determination as to the distribution of the marital property to be
impacted by any consideration it gave to the issue of spousal support.
{¶38} Thus, we find this case distinguishable from the Miller case and instead find
the instant case analogous to Gibson v. Gibson, 5th Dist. Tuscarawas No. 2006 AP 01
009, 2007-Ohio-2087. In Gibson, the trial court applied a credit for overpaid temporary
spousal support to the property settlement. Id. While the appellant in Gibson argued the
case was analogous to Miller and thus the trial court improperly considered and mixed
issues of property division and spousal support, this Court disagreed. Id. We overruled
the appellant’s assignment of error and found that, “the trial court merely applied
appellee’s spousal support credit against the amount appellee owed appellant as and for
the property division. Unlike in Miller v. Miller, * * * the trial court did not condition spousal
support upon any debt responsibility or upon the property division.” Id. Accordingly, we
apply our decision in Gibson and find the trial court did not err in offsetting any
overpayment of temporary spousal support against the property award in this case.
{¶39} Wife also argues the trial court did not properly take into consideration the
tax consequences of such an offset pursuant to R.C. 3105.171(F)(6). We disagree. In
the magistrate’s decision, the magistrate specifically stated “the tax consequences of Fairfield County, Case No. 16-CA-9 13
each party, of an award of spousal support, must be considered. Spousal support would
be includable in Wife’s income for tax purposes and would be deductible by Husband for
tax purposes.” Further, after the objection to the magistrate’s decision by Wife, the trial
court reviewed the transcript, took judicial notice of the tax code, and found the magistrate
did not err in failing to specifically address the tax consequences of the offset. The trial
court cited Wife’s testimony that she had not yet filed her 2013 tax return and, given the
income she testified to making at trial and assuming she received an earned income credit
for M.H., she would have received a federal tax credit and would not have paid any tax
on the spousal support she received. Upon review of the record, we find the testimony
of Wife supports the trial court’s conclusion as she testified her rough estimate of income
is approximately $7,000. Accordingly, we find the trial court adequately addressed the
tax consequences of the offset.
{¶40} Further, we have previously held that a trial court does not abuse its
discretion by not taking note of tax consequences if the evidence in this regard is
speculative. Forchione v. Forchione, 5th Dist. Stark No. 2012CA00085, 2013-Ohio-1761.
Neither party presented any evidence at trial concerning the tax consequences of either
spousal support or the martial property division. Thus, the evidence in this regard is
speculative and the trial court did not err in addressing the tax consequences any further
than it did.
{¶41} Wife’s second assignment of error is overruled. Fairfield County, Case No. 16-CA-9 14
III. & IV.
{¶42} In her third and fourth assignments of error, Wife contends the trial court
erred in designating Husband as the residential parent for purposes of school placement
and in awarding Wife and Husband equal parenting time with M.H.
{¶43} The standard of review in custody cases is whether the trial court abused
its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). An abuse
of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Given the nature and impact of custody disputes, the trial court’s discretion will be
accorded paramount deference because the trial court is best suited to determine the
credibility of testimony and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No.
CA2006-10-265, 2008-Ohio-1015. Specifically, “the knowledge a trial court gains through
observing witnesses and the parties in a custody proceeding cannot be conveyed to a
reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846
(1988). Therefore, giving the trial court due deference, a reviewing court will not reverse
the findings of a trial court when the award of custody is supported by a substantial
amount of credible and competent evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674
N.E.2d 1159 (1997).
{¶44} R.C. 3109.04 requires a trial court to consider the best interest of the child
in making an award of custody incident to a divorce proceeding. R.C. 3109.04(F)(1)
provides that, in making this determination, a court is to consider all relevant factors,
including, but not limited to: (a) the wishes of the child’s parents; (c) the child’s interactions
and interrelationship with her parents; (d) the child’s adjustment to her home and Fairfield County, Case No. 16-CA-9 15
community; (e) the mental and physical health of all persons involved in the situation; (f)
the parent more likely to honor and facilitate visitation and companionship rights approved
by the court; (g) whether either parent has failed to make child support payments * * *;
and (j) whether either parent has established a residence, or is planning on establishing
a residence, outside this state.
{¶45} Further, in determining whether shared parenting is in the best interest of
the child, the court shall consider all relevant factors, including, but not limited to, the
factors already listed above, the factors in section 3119.23 of the Revised Code, and the
following factors: (a) the ability of the parents to cooperate and make decisions jointly,
with respect to the child; (b) the ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent; (c) the geographic proximity
of the parents to each other; and (d) the recommendation of the guardian ad litem of the
child.
{¶46} Accordingly, we must examine the record to determine whether the trial
court considered all of the necessary factors listed in R.C. 3109.04(F)(1) and (F)(2) and
whether there is competent and credible evidence supporting the trial court’s
determination that designating Husband as the residential parent for the purposes of
school placement was in M.H.’s best interests and that equal parenting time was in M.H.’s
best interest.
{¶47} Upon review of the record, we find the magistrate considered and
completed a detailed analysis of the applicable factors listed in R.C. 3109.04(F)(1) and
(2). Silvestri testified M.H. is a very happy child and is bonded to both parents. He found
both parents had appropriate homes and he had no concerns with either parent. Fairfield County, Case No. 16-CA-9 16
Silvestri’s recommendation as to parenting time was equal parenting time. Silvestri stated
Husband’s proposed shared parenting plan is in M.H.’s best interest because M.H. does
not have to go more than a couple of days at a time without seeing either parent.
{¶48} Wife specifically argues equal parenting time is not in the best interest of
M.H. because Wife raised M.H. solely for the first three months of her life, Husband has
had limited and sporadic contact with M.H., and Husband frequently travels for work.
{¶49} Though Wife contends the magistrate and trial court failed to properly
consider the fact that she was the primary caregiver of M.H. for the first three months of
her life, the transcript shows the trial court was clearly aware of Wife’s earlier role as
primary caregiver. Further, Husband testified he did not visit M.H. for the first three
months because Wife would not let him see M.H. Additionally, though Wife argues
Husband’s visitation was “limited and sporadic,” Wife testified that from when M.H. was
three months old to March of 2013, she and M.H. would spend the night at the marital
home pretty close to every week-end. Wife further stated that, since the divorce was filed
in March of 2013 until the date of the trial over a year later, Husband has, for the most
part, followed visitation as the court ordered, other than not utilizing all Wednesday
overnights. Husband testified Wife would not permit him to see M.H. by himself prior to
this filing of the divorce and, since the divorce was filed, he has exercised all visitation
except some Wednesday overnights and he did not utilize all of these nights because he
felt it was unfair to M.H. to have to get up so early to return her to Wife by 9:00 a.m.
{¶50} Finally, while Wife testified to Husband’s extensive travel, Husband testified
he travels approximately once per month, but generally has flexibility as to when he
travels. Husband stated he travelled sixteen times last year and most trips were one to Fairfield County, Case No. 16-CA-9 17
two day trips. As noted above, the trial court is in the best position to judge the credibility
of the witnesses and weigh the evidence. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d
846 (1988). In this case, the trial court considered the factors enumerated in R.C.
3109.04(F)(1) and (2). R.C. 3109.04(F) provides the court with discretion to weigh the
relevant factors and determine how those factors apply to the child’s best interests with
regards to parenting time. Lutton v. Briggs, 5th Dist. Stark No. 2014CA00214, 2015-Ohio-
1910.
{¶51} As to school placement, Wife specifically argues the trial court erred in
designating Husband the residential parent for school placement because it is not in the
best interest of the child and because such a designation is not required under R.C.
3109.04(G) since M.H. is not of school age.
{¶52} As noted above, upon review of the record, we find the magistrate
considered and completed a detailed analysis of the applicable factors listed in R.C.
3109.04(F)(1) and (2). Each parent testified it was in M.H.’s best interest for them to be
the residential parent for school purposes. Silvestri stated he would rather wait to decide
on such a placement, but understood the need for finality in the case. Silvestri testified
weighing in Husband’s favor is the fact that he is in the martial home and his stability.
Weighing in Wife’s favor is the fact she has been the primary caregiver since birth.
However, if Silvestri had to pick, he would pick Husband, as his stability would tip the
balance in his direction. In addition, Silvestri stated early education and enrollment in a
preschool for a few days a week would be in the best interest of M.H. While Husband
was in favor of preschool, Wife testified she does not want M.H. to go to preschool, even
if it were only for a few days a week. Fairfield County, Case No. 16-CA-9 18
{¶53} While Wife argues the trial court failed to take into account her own stability
and work flexibility, it is clear from the record that the trial court did consider Wife’s history
and employment into consideration, as the magistrate noted Wife “has been a resident of
Newark, Ohio for most of her life,” “Wife takes M.H. to work with her at Wife’s brother’s
business”, and “Wife has extended family in the Newark area.” The magistrate and trial
court found both parents to be loving parents and both bonded with M.H. Further, the
magistrate and trial court found no concerns with the ability of either party to appropriately
parent the child. However, the trial court also took into consideration Husband’s twenty-
year career with the Department of Defense, his ties to the community, his extended
family in the Pickerington area, and the flexibility with his start time and ability to work
from home.
{¶54} In this case, the trial court considered the factors enumerated in R.C.
3109.04(F)(1) and (2). R.C. 3109.04(F) provides the court with discretion to weigh the
relevant factors and determine how those factors apply to the child’s best interests. Lutton
v. Briggs, 5th Dist. Stark No. 2014CA00214, 2015-Ohio-1910. Given the nature and
impact of custody disputes, the trial court’s discretion will be accorded paramount
deference because the trial court is best suited to determine the credibility of testimony
and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No. CA2006-10-265,
2008-Ohio-1015. Specifically, “the knowledge a trial court gains through observing
witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing
court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988).
Upon review of the record, we find there is competent and credible evidence to support
the trial court’s decision with regards to the designation of Husband as the residential Fairfield County, Case No. 16-CA-9 19
parent for purposes of school placement. We note, as did Silvestri during the trial, that
any such designation is subject to modification as provided by the Ohio Revised Code.
{¶55} As to Wife’s argument that the magistrate and trial court improperly applied
R.C. 3109.04(G), we first note that Wife failed to raise this argument in her objections to
the magistrate’s decision and thus it is waived on appeal. The Strip Delaware, LLC v.
Landry’s Restaurants, Inc., 5th Dist. Stark No. 2010CA00316, 2011-Ohio-4075.
However, even if we were to consider Wife’s argument relying on the Bomberger-Cronin
case, we find this case to be distinguishable from the instant case. In Bomberger-Cronin
v. Cronin, 2nd Dist. Greene No. 2014-CA-4, 2014-Ohio-2302, the Second District found
a shared parenting plan was not legally insufficient because it did not designate a
residential parent for school placement of a two-year old child. However, in this case,
there is no issue as to the legal sufficiency of the shared parenting plan and the magistrate
and trial court found school placement to be a relevant factor pursuant to R.C.
3109.04(G), despite M.H.’s age. We find such a determination not to be an abuse of
discretion as the trial court has the discretion to determine which factors are relevant and
to determine how those factors apply to the child’s best interests. Lutton v. Briggs, 5th
Dist. Stark No. 2014CA00214, 2015-Ohio-1910; Allen v. Allen, 12th Dist. Warren No.
CA2010-11-107.
{¶56} Wife’s third and fourth assignments of error are overruled. Fairfield County, Case No. 16-CA-9 20
V.
{¶57} In her fifth assignment of error, Wife contends the trial court abused its
discretion and erred in deviating child support from the guideline order. Specifically, Wife
contends that since the trial court’s order of equal parenting time was an abuse of
discretion, the trial court’s deviation from the child support guideline was an abuse of
discretion. Given our analysis and overruling of Wife’s assignment of error regarding
equal parenting time, we find the trial court did not abuse its discretion in deviating from
the child support guideline order pursuant to R.C. 3119.22. Wife’s fifth assignment of
error is overruled.
{¶58} Based on the foregoing, the judgment entry of the Fairfield County Court of
Common Pleas, Domestic Relations Division, is affirmed.
By Gwin, J.,
Farmer, P.J., and
Baldwin, J., concur