Kougher v. Kougher

2011 Ohio 3411, 957 N.E.2d 835, 194 Ohio App. 3d 703
CourtOhio Court of Appeals
DecidedJune 29, 2011
Docket10 MA 54
StatusPublished
Cited by12 cases

This text of 2011 Ohio 3411 (Kougher v. Kougher) 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
Kougher v. Kougher, 2011 Ohio 3411, 957 N.E.2d 835, 194 Ohio App. 3d 703 (Ohio Ct. App. 2011).

Opinions

Waite, Presiding Judge.

{¶ 1} Appellant, Charles E. Rougher Jr., appeals the decision of the Mahoning County Court of Common Pleas, overruling his motion to terminate shared parenting. Appellant and appellee Tara C. Rougher agreed to shared parenting of their seven-year-old child as part of their divorce decree. Appellant contends that the trial court used the wrong standard in reviewing the motion to terminate [704]*704shared parenting. Appellant argues that a motion to completely terminate shared parenting is reviewed under a standard different from a motion to modify shared parenting. Although the Ohio Supreme Court in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, required courts to first find a change in circumstances when modifying shared parenting, appellant argues that no change in circumstances is required when a party requests a complete termination of the shared-parenting decree. Appellee has not filed a brief in this appeal. Appellant is correct that under R.C. 3109.04(E)(2)(c), a court may terminate a shared-parenting decree without the need to first find that a change in circumstances has occurred. While the trial court relied on our holding in Surgenavic v. Surgenavic, 7th Dist. No. 08 MA 29, 2009-Ohio-1028, 2009 WL 582575, the trial court has misinterpreted that holding. We specifically stated in Surgenavic that “R.C. 3109.04(E)(2)(c) is not applicable * * * ” in that case. Thus, we had no need to discuss or interpret R.C. 3109.04(E)(2)(c) at that time. Id. at ¶ 9. In the instant appeal, however, appellant directly relies on an interpretation and application of R.C. 3109.04(E)(2)(c), and there has been no rebuttal from appellee. We agree with appellant that his motion to terminate shared parenting should not have been overruled based on the failure to argue or find a change in circumstances. Instead, the trial court should have looked solely at the best interests of the child in determining whether to grant or deny the motion. The judgment of the trial court is hereby vacated, and the matter is remanded for review based on that standard.

History of the Case

{¶ 2} The parties were married on July 19, 2002. One child was born during the marriage. The parties did have another child together prior to their marriage, but custody of this child falls under the jurisdiction of the Mahoning County Court of Common Pleas, Juvenile Division, and is not at issue in this appeal. Appellee Tara Rougher filed for divorce on September 2, 2008, and the case was assigned to a magistrate. Appellant filed a pro se answer to the complaint and requested to be designated as the residential parent of the child. The court designated him as the child’s residential parent during the divorce proceedings because he had been the primary caregiver. On March 9, 2009, appellant obtained counsel to represent him in the divorce proceedings. The parties negotiated a separation agreement, and the agreement was incorporated into the subsequent decree of divorce. The parties incorporated a shared-parenting order into their separation agreement, and this also became part of the divorce decree. Although appellant agreed to shared parenting prior to the magistrate’s final decision, he had misgivings shortly after the magistrate filed his decision granting the divorce. Appellant filed objections to the magistrate’s [705]*705decision. The objections were subsequently overruled on July 1, 2009, and the shared-parenting order was made a part of the divorce decree.

{¶ 3} On August 8, 2009, appellant filed a motion to terminate shared parenting. In the motion, appellant sought complete termination of shared parenting; he did not seek modification of the shared-parenting order. The magistrate had a hearing during which the sole issue was whether there had been a change in circumstances since the issuance of the divorce decree approximately one month earlier. The magistrate found that there had been no change in circumstances and overruled the motion on December 9, 2009. Appellant filed objections to the magistrate’s decision, and these were overruled on March 1, 2010. Appellant filed this timely appeal on March 31, 2010. Appellee has not filed a brief in this appeal. Under App.R. 18(C), we “may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if appellant’s brief reasonably appears to sustain such action.”

Assignment of Error

{¶ 4} “The trial court erred by applying the decision in Fisher v. Hasenjager [116 Ohio St.3d 53], 2007-Ohio-5589 [876 N.E.2d 546] to a motion to terminate an original shared parenting order pursuant to R.C. 3109.04(E)(2)(c), thus requiring a change of circumstances in contradiction to the clear language of the statute.”

{¶ 5} Appellant argues that the trial court erroneously applied the holding found in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, which requires the court to find a change in circumstances before modifying parental rights in a shared-parenting decree. Appellant contends that Fisher is limited to situations in which a party is attempting to modify, rather than terminate, a shared-parenting decree. Appellant is correct that Fisher dealt with a problem arising from a request to modify parental rights under a shared-parenting decree rather than a motion to completely terminate such a decree. Fisher specifically dealt with a dispute between the application of R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b). R.C. 3109.04(E)(1)(a) requires that before modifying a shared-parenting decree, a trial court must first find that a change in circumstances has occurred, while R.C. 3109.04(E)(2)(b) deals with the modification of a shared-parenting plan. This modification requires a finding that it is being done in the best interests of the child. Id. at ¶ 10. Importantly, both provisions deal with modifications to shared parenting, rather than complete termination of shared parenting.

{¶ 6} Fisher emphasized that it was dealing with situations in which a party wants to maintain some aspects of shared parenting, but also asks the court to modify in some way the allocation of parental rights, such as the designation of [706]*706who is the residential parent. Fisher was interpreting R.C. 3109.04(E)(1)(a), which states:

{¶ 7} “(E)(1)(a) The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:

{¶ 8} “(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 3411, 957 N.E.2d 835, 194 Ohio App. 3d 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kougher-v-kougher-ohioctapp-2011.