In re E.R.

2022 Ohio 3658

• Court: Ohio Court of Appeals
• Decided: October 14, 2022
• Docket: 29515
• Status: Published

Opinion

[Cite as In re E.R., 2022-Ohio-3658.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: E.R. : : : Appellate Case No. 29515 : : Trial Court Case No. G-2018-1755-0N, : 0P : : (Appeal from Common Pleas : Court – Juvenile Division) :

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OPINION

Rendered on the 14th day of October, 2022.

Mother, Dayton, Ohio Appellant, Pro Se

Father, Dayton, Ohio Appellee, Pro Se

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EPLEY, J. -2-

{¶ 1} Appellant (“Mother”) appeals from a judgment of the Montgomery County

Court of Common Pleas, Juvenile Division, which granted Appellee’s (“Father”) motion

for a change of parenting time. For the reasons that follow, the judgment of the trial court

will be affirmed.

I. Facts and Procedural History

{¶ 2} Mother and Father are the biological parents of their daughter, E.R. In 2018,

Father was ordered to provide child support payments to Mother for the benefit of E.R.,

and while Mother had custody of the child, Father was granted parenting time. Between

2018 and 2022, the parties were before the trial court multiple times for modifications to

support and parenting time and for contempt hearings.

{¶ 3} The genesis of this appeal was Father’s August 10, 2021 motion for a change

of parenting time, which aimed to bring about the modification of a prior order entered

June 17, 2020. At a November 30, 2021 hearing at which both parties appeared pro se,

Father testified that he had requested the parenting time modification because his work

schedule had changed; instead of working second shift, he was now on first shift, and he

had Mondays and Tuesdays off. He told the magistrate that he and Mother had worked

out a tentative schedule in which, every other week, he would have E.R. from Monday at

8 a.m. until Tuesday at 5:00 p.m. The magistrate then asked Mother if she was satisfied

with that arrangement, and she confirmed that she was. Hearing Tr. at p. 7, 21.

{¶ 4} Later in the hearing, Mother presented the magistrate with a long-term

schedule she had created that divided up parenting time for the holidays. The magistrate,

then, made two suggestions. First, she urged the parties to voluntarily adopt the -3-

“Standard Order of Parenting” which automatically divides holidays between parents.

Second, she recommended setting aside seven consecutive days for vacations each

summer. Father agreed to the proposal, but Mother did not.

{¶ 5} Following Father’s testimony, Mother was given a chance to testify, but

instead of doing so, she merely presented her parenting time proposal, which was

admitted as Exhibit A. The magistrate told the parties that she would consider Father’s

testimony, Mother’s exhibit, and decide whether to modify Father’s parenting time within

a few days.

{¶ 6} On December 1, 2021, the magistrate issued her decision, which granted

Father’s request to modify parenting time. Father was granted parenting time with E.R.

every other Monday from 8 a.m. to Tuesday at 5:00 p.m. The parties were ordered to

follow the “Standard Order of Parenting” for holidays, Mother’s/Father’s Day and the

child’s birthday, and each parent was granted no less than seven continuous days for

vacation per year with 30 days advanced notice. Mother objected to the order, arguing

that the magistrate erred in failing to adopt her proposed parenting plan as outlined in

Exhibit A.

{¶ 7} On May 17, 2022, the trial court overruled Mother’s objection to the

magistrate’s decision and issued an order following the magistrate’s decision. This

appeal followed.

II. Parenting Time

{¶ 8} Although Mother’s pro se brief does not follow the form prescribed by the

Appellate Rules and does not raise any assignments of error, we interpret her brief as -4-

challenging the trial court’s adoption of the “Standard Order of Parenting” to govern

parenting time on holidays and birthdays.

{¶ 9} When modifying visitation, a trial court considers the factors set forth in R.C.

3109.051(D) and then determines, using its sound discretion, the visitation schedule in

the best interest of the children. Braatz v. Braatz, 85 Ohio St.3d 40, 45, 706 N.E.2d 1218

(1999). “We will not reverse a trial court’s decision on a motion for modification of visitation

rights absent an abuse of discretion.” Quint v. Lomakoski, 2006-Ohio-3041, 854 N.E.2d

225, ¶ 12 (2d Dist.). To constitute an abuse of discretion, a trial court’s action must be

arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ.,

12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). It is to be expected, however, that most

instances of abuse of discretion will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark

No. 2011-CA-21, 2012-Ohio-2664, ¶ 24.

{¶ 10} R.C. 3109.051 lists 15 factors that a trial court must consider when

determining parenting time matters, including: the prior interaction and interrelationships

of the child and parents; the location of each parent’s residence; the child and parents’

available time; the age of the child; the child’s adjustment to home, school, and

community; the child’s wishes; the health and safety of the child; the amount of time that

will be available for the child to spend with siblings; the mental and physical health of all

parties; each parent’s willingness to reschedule missed time; the criminal history of the

parents involving acts that resulted in a child being abused or neglected; whether either

parent has continuously and willfully denied the other parent’s right to parenting time; -5-

whether either parent has established or plans to establish an out-of-state residence; and

any other factor in the best interest of the child. Quint at ¶ 13; Braatz at 45; R.C.

3109.051(D).

{¶ 11} In its decision, the trial court analyzed all 15 factors, finding several to be

particularly important. For instance, the court found the “child and parents’ available time”

factor to weigh heavily in favor of modifying the parenting time schedule because Father

had moved from second shift to first shift at work and his new days off were Monday and

Tuesday. The court also noted that to see E.R. under the previous schedule, Father was

forced to use all his sick leave, which caused disciplinary issues at work. Changing the

parenting time schedule to accommodate Father’s work schedule was in the best interest

of the child.

{¶ 12} The court found two other factors particularly important. The court found

that granting Father’s motion to modify the schedule would increase the time available for

E.R. to spend with her siblings. Father testified that E.R. would be better able to visit with

her older half-brother if he were given parenting time on Mondays and Tuesdays, and

particularly if he were awarded seven consecutive days of parenting time in the summer

for vacations. The court also found that Mother’s unwillingness to facilitate Father’s

parenting time militated toward granting Father’s motion. Specifically, the court noted that

while Mother had initially agreed to implement the Monday-Tuesday schedule in recent

weeks, her track record of compliance was questionable, as records showed that in

August 2021, Mother was found in contempt regarding parenting time. Ordering the new

schedule instead of relying on Mother’s good faith compliance was in the best interest of -6-

E.R.

{¶ 13} After analyzing all of the applicable factors, the trial court concluded that

modifying Father’s parenting time as described above was in the best interest of E.R.,

and after considering the record, we cannot conclude that the trial court abused its

discretion in doing so. Modifying Father’s parenting time so that he could spend more

time with E.R. without risking his job in the process was in everyone’s best interest.

Mother’s challenge to the trial court’s modification of parenting time is overruled.

III. Conclusion

{¶ 14} The judgment of the trial court will be affirmed.

TUCKER, P.J. and LEWIS, J., concur.

Copies sent to:

Mother Father Hon. Anthony Capizzi