Massong v. Tyner

2022 Ohio 2933

• Court: Ohio Court of Appeals
• Decided: August 24, 2022
• Docket: C-210549
• Status: Published

Opinion

[Cite as Massong v. Tyner, 2022-Ohio-2933.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

BRYAN MASSONG, : APPEAL NO. C-210549 TRIAL NO. F16-2479z Plaintiff-Appellant, :

: O P I N I O N. VS. :

ASHLEE TYNER, :

Defendant-Appellee. :

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 24, 2022

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Plaintiff- Appellant,

Arnold Law Firm, LLC, and Britt Born, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In this parental-custody case, plaintiff-appellant Bryan Massong

petitioned the juvenile court for sole custody of his son or, in the alternative, increased

parenting time. Defendant-appellee Ashlee Tyner requested that the juvenile court

eliminate Mr. Massong’s parenting time entirely or require supervised visits. The

court met the parties somewhere in the middle, selecting Ms. Tyner as the custodial

parent and granting Mr. Massong visitation for six hours every other week with the

opportunity to earn more parenting time if he completes counseling sessions. On

appeal, Mr. Massong raises five assignments of error, arguing that the juvenile court

abused its discretion in various ways when curtailing his parenting time. Finding no

abuse of discretion, we accordingly overrule his assignments of error and affirm the

judgment of the court below.

I.

{¶2} Mr. Massong and Ms. Tyner are the biological parents of E.M., born in

June 2014. Their relationship was acrimonious to say the least, marred by allegations

of domestic violence and abuse by both parties. The turbulent relationship ended in

the summer of 2015, when E.M. was approximately one year old. Shortly after, Ms.

Tyner began dating James Dwolf, her now husband and E.M.’s stepfather.

{¶3} The parties attempted to handle custody and visitation between

themselves initially but that proved untenable. Mr. Massong filed a petition for

custody or shared parenting in November 2016. An agreed parenting plan was entered

in August 2017, granting Ms. Tyner legal custody and awarding Mr. Massong visitation

every Tuesday and every other weekend. Unfortunately, having a formal shared-

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parenting plan and visitation schedule in place failed to alleviate the hostility between

the parties.

{¶4} Over the next two years, both parents violated provisions of the agreed

parenting plan. Ms. Tyner neglected to give Mr. Massong access to E.M.’s school

records, consult with Mr. Massong before signing E.M. up for extracurricular

activities, or inform Mr. Massong or the court of her relocation within Hamilton

County. Mr. Massong, for his part, persisted in communicating with Ms. Tyner outside

of the approved messaging system put in place by the court. Many of the messages

sent by Mr. Massong were threatening, insulting, and disparaging to Ms. Tyner and

Mr. Dwolf.

{¶5} Eventually, in 2019, Mr. Massong again petitioned the court for sole

custody or additional parenting time. Through mediation, the parents agreed to follow

a temporary parenting plan until the juvenile court ruled on Mr. Massong’s petition.

But the parties could not await that determination, as Ms. Tyner filed a motion to

modify the temporary parenting agreement and both parties filed motions for

contempt, each alleging violations of the temporary parenting plan.

{¶6} Due to the Covid-19 pandemic and other scheduling issues, the juvenile

court did not hold the combined custody and parenting-time trial until September and

October 2020. In light of evidence and testimony given at the hearings that E.M. was

tardy to school every morning for two months when Mr. Massong took him, and that

issues arose surrounding the exchanges of E.M., the juvenile court revised the interim

order so that Mr. Massong did not have overnight visitations through the week and

ordered that all exchanges take place at the Cincinnati Police Department.

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{¶7} A few months later, Ms. Tyner requested an ex parte emergency order

asking the court to suspend Mr. Massong’s visitation entirely or to order that the visits

be supervised, averring that she believed E.M. to be in danger of immediate physical

harm or threat of harm. According to her, Mr. Massong’s behavior deteriorated after

the court suspended his overnight visits. E.M. allegedly returned from Mr. Massong’s

home in tears, claiming that Mr. Massong said he “can’t take this anymore” and “won’t

see him again” because he “is going far, far, away forever.” Ms. Tyner also detailed in

her affidavit that Mr. Massong persisted in texting her directly, that he told E.M. that

Ms. Tyner stabbed him with a knife, and that he refused to exchange E.M. at the police

department as ordered by the court. Mr. Massong’s parenting time with E.M. was

suspended entirely once Ms. Tyner filed the emergency motion.

{¶8} At the hearing on the emergency order, Ms. Tyner offered to withdraw

the motion and allow Mr. Massong’s visitation to be reinstated if he agreed to abide by

the provisions of the court-approved temporary parenting plan (which the parties

were still operating under because no final custody decision had yet been entered).

Mr. Massong declined, claiming he wanted to postpone the hearing and consult a

lawyer “because of the veracity of the case substantiating facts.” At the continued

hearing on the emergency motion some six weeks later, Mr. Massong fixated on

proving that Ms. Tyner did indeed stab him with a knife during the argument over five

years ago, despite the court’s continuous admonishment that the only evidence it

would hear pertained to the emergency motion. The court found he violated the terms

of the parenting plan and noted his erratic behavior in court proceedings, concluding

by ordering that Mr. Massong’s visitation remain suspended until the court issued a

decision in the custody case.

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{¶9} The juvenile court entered its final decision on Mr. Massong’s custody

petition and Ms. Tyner’s request to modify parenting time in September 2021. Mr.

Massong now timely appeals, raising five assignments of error.

II.

A.

{¶10} In his first assignment of error, Mr. Massong argues that the juvenile

court erred by not finding that a change of circumstances occurred since the previous

order of custody. R.C. 3109.04(E) sets forth the procedures to be followed if either a

parent or the trial court finds it necessary to make changes to a shared-parenting

decree or plan. Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396,

¶ 9. Relevant here is R.C. 3109.04(E)(1)(a), which provides that before modifying a

prior decree allocating parental rights and responsibilities, the trial court must find

that a change has occurred in the circumstances of the child or the child’s residential

parent. Under R.C. 3109.04(E)(1)(a),the change in circumstances must be “based on

facts that have arisen since the prior decree or that were unknown to the court at the

time of the prior decree.” The changed conditions must also “be substantiated,

continuing, and have a materially adverse effect upon the child.” In re E.R., 1st Dist.

Hamilton No. C-180615, 2019-Ohio-4491, ¶ 6.

{¶11} Mr. Massong contends that Ms. Tyner’s relocation, E.M.’s age, and the

introduction of a stepfather into the family dynamic qualify as changed circumstances.

While Mr. Massong concedes that none of those events on their own would constitute

a change in circumstances under the statute, he believes that, when taken together,

courts recognize the totality of similar happenings to represent a change in

circumstances warranting a modification to the custody order. This argument is

5 OHIO FIRST DISTRICT COURT OF APPEALS

correct on the surface so far as it goes. “A change of circumstances can be upheld based

on a collection of findings as to how the lives of the residential parent and the child

have changed since the prior decree.” Gibson v. Gibson, 7th Dist. Columbiana No. 17

CO 0034, 2018-Ohio-2772, ¶ 42.

{¶12} But the argument breaks down under even casual scrutiny of the record

evidence at hand. The trial court disagreed with Mr. Massong, finding that even when

taken together, E.M.’s age, mother’s relocation, and the hostility between the parents

was insufficient to find a change of circumstances occurred. “We review a trial court’s

change-in-circumstances determination for an abuse of discretion because ‘a trial

judge, as the trier of fact, must be given wide latitude to consider all issues which

support such a change.’ ” Souders v. Souders, 1st Dist. Hamilton No. C-210469, 2022-

Ohio-1953, ¶ 8, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 416, 674 N.E.2d 1159

(1997). Before we will reverse, Mr. Massong must show that the trial court

“exercise[ed] its judgment, in an unwarranted way, in regard to a matter over which it

has discretionary authority.” See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-

Ohio-3304, 187 N.E.3d 463, ¶ 35. On this record, we are not persuaded.

{¶13} To begin with, regarding E.M.’s age, a child’s maturation from infancy

to school age is not sufficient on its own to constitute a changed circumstance. See In

re E.R., 1st Dist. Hamilton No. C-180615, 2019-Ohio-4491, at ¶ 10. In his merit brief,

Mr. Massong relied on a case in which a trial court allocated parental rights shortly

after the birth of the child, and a later trial court failed to consider whether the child’s

“maturation over the past fifteen years, combined with her expressed desire to live

with [father] and any other circumstances in this case, constitute a change in

circumstances sufficient to warrant inquiry into the other requirements of R.C. §

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3109.04(E)(1)(a).” In re Custody of M.B., 2d Dist. Champaign No. 2006-CA-6, 2006-

Ohio-3756, ¶ 20.

{¶14} But Mr. Massong filed his motion less than two years after the agreed

order establishing parental rights, a significant factual distinction. He points to no

case law suggesting that such a nominal progression in age constitutes a change in

circumstances, and there is no indication in the record that E.M. expressed a desire to

live with Mr. Massong. Thus, we will only consider E.M.’s advancement in age as part

of a collective finding.

{¶15} Mr. Massong further alleges in this assignment of error that the

introduction of a stepfather fostered a hostile relationship between the parties. The

record squarely contradicts the notion that Ms. Tyner’s relationship with Mr. Dwolf is

a new fact that has “arisen since the prior decree.” The marriage itself may have been

a recent development, but Ms. Tyner and Mr. Dwolf both testified that they dated for

approximately five years before getting married in 2020.

{¶16} Nor can Mr. Massong seriously allege that stepfather is the source of

increased conflict between the parents. Mr. Massong cites as the “prime example” an

incident where stepfather would not allow him to carry a sleeping E.M. into the

house—a prudent decision considering the threatening messages lobbed at Mr. Dwolf

over the years. Although Mr. Massong seems to take issue with dropping E.M. off with

anyone other than Ms. Tyner, we see no requirement in the parenting decree that Ms.

Tyner herself be available during exchanges.

{¶17} Turning to Ms. Tyner’s relocation, we appreciate Mr. Massong’s

frustration on this point. Ms. Tyner admitted to moving without notifying the court

as required by the agreed entry and neglected to inform Mr. Massong of the move until

7 OHIO FIRST DISTRICT COURT OF APPEALS

after she closed on the sale of the new property. The move increased the time it takes

Mr. Massong to pick up and drop off E.M., but it hardly constitutes the type of

disruption to visitation that can only be overcome through extraordinary efforts. See

Long v. Long, 3d Dist. Union No. 14-10-01, 2010-Ohio-4817, ¶ 32-33 (affirming

relocation as a change in circumstance where eight hours of travel would be required

to maintain visitation schedule). As the court pointed out, Ms. Tyner’s relocation was

within the same county and “relocation of the residential parent, by itself, is not

sufficient to be considered a change of circumstances.” Souders, 1st Dist. Hamilton

No. C-210469, 2022-Ohio-1953, at ¶ 12. Mr. Massong has not alleged circumstances

surrounding Ms. Tyner’s relocation that would overcome R.C. 3109.04(E)(1)(a)’s

presumption in favor of retaining the existing parenting decree.

{¶18} The juvenile court did not abuse its discretion in declining to find that

the events described above amounted to a change in circumstances, either individually

or in the collective. Accordingly, we overrule Mr. Massong’s first assignment of error.

B.

{¶19} Mr. Massong’s second assignment of error claims that the juvenile court

abused its discretion by not considering E.M.’s best interests. This assignment of error

only proceeds with a predicate determination that a change in circumstances occurred.

See Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-

2398, ¶ 20 (“After finding a change in circumstances, the court must determine

whether a modification is in the best interest of the children.”). The trial court found

the change in circumstances requirement unfulfilled, and thus dispositive, and did not

examine the best-interest factors. Because we agree that no change in circumstances

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occurred, and because Mr. Massong’s second assignment of error is premised on that

initial finding, his second assignment of error is likewise overruled.

C.

{¶20} In his third assignment of error, Mr. Massong contends that the juvenile

court erred in finding that the magistrate’s reliance on evidence presented during the

emergency motion hearing to be harmless error. Mr. Massong’s visitation rights were

suspended during the pendency of the emergency hearing, which took place after the

custody trial but before the magistrate issued his ultimate custody decision. The trial

court agreed that it was error for the magistrate to rely on evidence presented at the

emergency motion hearing, but also explained that it “conducted an independent

review of this matter, and [found] this error harmless, as there was sufficient evidence

to support the Magistrate’s Decision at the full trial on the matter.”

{¶21} Mr. Massong now requests that this court remand the matter and

instruct the trial court to offer him make-up time for the visitations he missed as a

result of the emergency motion, and to offer him more parenting time in general. First,

in some respects, this seems like a self-inflicted wound. Ms. Tyner’s counsel attempted

to withdraw the emergency order on the condition that Mr. Massong follow the court’s

orders regarding communication and exchange locations. The magistrate asked Mr.

Massong if that was acceptable, reminding him that his parenting time would be

reinstated that very day if Ms. Tyner withdrew the motion. Mr. Massong refused, more

focused on litigating past incidents from 2014 than on visitation with E.M. He cannot

now ask us to remedy a situation he himself created.

{¶22} Second, as to Mr. Massong’s claim of prejudice by virtue of the

magistrate’s improper reliance on evidence not pertinent to the matter at hand, we

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disagree. The trial court addressed this argument in its judicial entry, finding the

evidence from the full custody trial sufficient to support the magistrate’s decision even

without the evidence presented at the emergency motion hearing. In his brief, Mr.

Massong isolates certain statements made by the magistrate at the emergency hearing.

But the trial court relied on evidence from the full trial in its entry, and Mr. Massong

failed to point us to errors in that record on this assignment of error. Accordingly, we

overrule his third assignment of error.

D.

{¶23} In his fourth assignment of error, Mr. Massong maintains that the

juvenile court’s decision to limit his parenting time to only six hours every other week

runs counter to the manifest weight of the evidence and does not further E.M.’s best

interest. When establishing specific parenting time and determining a visitation

schedule, courts must consider fifteen enumerated factors as well as “any other factor

in the best interest of the child.” See R.C. 3109.051(D). The juvenile court “enjoys

broad discretion when setting parenting time and determining the conditions under

which parenting time will take place.” Cwik v. Cwik, 1st Dist. Hamilton No. C-090843,

2011-Ohio-463, ¶ 42. “Thus, we review the trial court’s [limiting of Mr. Massong’s]

parenting time under an abuse-of-discretion standard, as guided by the statutory best-

interest factors set forth in R.C. 3109.051(D).” Id.

{¶24} The trial court engaged with all the statutory requirements in its entry

and made many findings supported by the record. For instance, the trial court noted

its concerns about the safety of E.M. pursuant to R.C. 3109.051(D)(7), highlighting Mr.

Massong’s violent text messages over the years and the fact that E.M. once came home

from a visit with bruises and a bitten ear. It considered the mental and physical health

10 OHIO FIRST DISTRICT COURT OF APPEALS

of the parties as directed by R.C. 3109.015(D)(9) and found that Mr. Massong

displayed anger management issues not just towards Ms. Tyner and Mr. Dwolf, but in

front of the court as well. And it rejected as unfounded Mr. Massong’s accusation that

Mr. Dwolf harmed E.M. by grabbing him by the shoulders. See R.C. 3109.051(D)(1).

{¶25} Mr. Massong responds that he credibly manifested remorse over his

past behavior and that the trial court should have afforded more weight to his versions

of the evidence. As continually emphasized by this and other Ohio courts, “[t]he trier

of fact is in the best position to judge the credibility of the witnesses and the weight to

be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No. C-180336,

2019-Ohio-4550, ¶ 16, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212

(1967). We see no basis in the record to second-guess the trial court’s findings here.

Accordingly, we overrule Mr. Massong’s fourth assignment of error.

E.

{¶26} In his last assignment of error, Mr. Massong claims it was an abuse of

discretion for the juvenile court to fail to order the parties to attend coparenting

counseling. He contends, somewhat incredulously, that Ms. Tyner has “arguably

contributed to the friction between the parties to the same degree” he has, therefore

they both should attend coparenting counseling to learn how to reduce the conflict

between them.

{¶27} Courts may order mandatory coparenting counseling as a condition of a

shared parenting plan, see Teufel v. Teufel, 1st Dist. Hamilton No. C-160673, 2017-

Ohio-5732, ¶ 9, but Mr. Massong cites to no authority indicating that a court abuses

its discretion when it does not order counseling. The trial court here found that the

toxicity between the parties stems almost exclusively from Mr. Massong’s behavior, a

11 OHIO FIRST DISTRICT COURT OF APPEALS

finding undoubtedly supported by competent and credible evidence. In addition to

the disturbing text messages referenced by the court, Mr. Massong violated the court

order not to communicate directly with Ms. Tyner, refused to return E.M. at the

required time because Mr. Dwolf would not allow him in their home, failed to

exchange E.M. at the court-ordered location and forced Ms. Tyner to meet at a place

of his choosing, and spoke disparagingly about Ms. Tyner in front of E.M.

{¶28} We acknowledge Mr. Massong’s professed remorse about his past

behavior, but this calls to mind the adage that actions speak louder than words. The

trial court left open the possibility of increased visitation with E.M. if Mr. Massong

completes an anger management program or engages in counseling for at least six

months. That strikes us as a prudent course of action that could benefit all involved.

But on the present record, we cannot say that the trial court abused its discretion by

refusing to order coparenting counseling. Accordingly, Mr. Massong’s fifth

assignment of error is overruled.

* * *

{¶29} In light of the foregoing analysis, we overrule all five of Mr. Massong’s

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

MYERS, P. J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.