McMahan v. McMahan

2015 Ohio 5054

• Court: Ohio Court of Appeals
• Decided: December 7, 2015
• Docket: 17-15-06
• Status: Published

Opinion

[Cite as McMahan v. McMahan, 2015-Ohio-5054.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

TIFFANY I. MCMAHAN,

PLAINTIFF-APPELLEE, CASE NO. 17-15-06

v.

DAVID T. MCMAHAN, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Domestic Relations Division Trial Court No. 13DV000062

Judgment Affirmed

Date of Decision: December 7, 2015

APPEARANCES:

David T. McMahan, Appellant

Timothy S. Sell for Appellee Case No. 17-15-06

PRESTON, J.

{¶1} Defendant-appellant, David T. McMahan (“David”), pro se, appeals

the May 4, 2015 decision of the Shelby County Court of Common Pleas, Domestic

Relations Division granting divorce from the plaintiff-appellee, Tiffany I.

McMahan (“Tiffany”). For the reasons that follow, we affirm.

{¶2} David and Tiffany were married on April 12, 2008. (Doc. No. 1).

Tiffany filed a complaint for divorce on April 2, 2013. (Id.). Although this was a

second marriage for each of them, and while each had children from their previous

marriages, one child (“M.M.”) was born as issue of this marriage. (Id.). Tiffany

filed motions on April 2, 2013 requesting that the trial court issue ex parte orders:

(1) that she have exclusive use of the 2002 Chevrolet Venture; (2) that she have

exclusive use of the marital residence; (3) that she have temporary custody of

M.M. and that David pay Tiffany temporary child support for M.M.; and (4)

granting a temporary restraining order against David. (See Doc. Nos. 9, 11, 13,

15). The trial court issued the ex parte orders requested by Tiffany on April 3,

2013. (Doc. Nos. 18, 19, 20, 21).

{¶3} David, pro se, filed a motion on April 10, 2013 requesting that the trial

court order Tiffany to be tested for drugs. (Doc. Nos. 28). David then retained

counsel and on April 15, 2013 filed his answer and counterclaim. (Doc. No. 36).

On April 15, 2013, David filed an objection to the trial court’s April 3, 2013 ex

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parte orders granting Tiffany temporary custody of M.M. and ordering David to

pay temporary child support. (Doc. No. 37). That same day, David filed motions

requesting that the trial court issue ex parte orders: (1) protecting the interests of

M.M., (2) a temporary restraining order against Tiffany, (3) that he be granted

temporary custody of M.M. and that Tiffany pay child support. (Doc. Nos. 38, 40,

42). The trial court on April 16, 2013 issued the ex parte orders protecting M.M.’s

interests granting temporary restraining order against Tiffany. (Doc. Nos. 53, 54).

{¶4} Tiffany filed her reply to David’s counterclaim on April 18, 2013.

(Doc. No. 56).

{¶5} On June 4, 2013, the magistrate of the trial court issued “Agreed

Temporary Order of Custody and Child Support,” granting temporary custody of

M.M. to Tiffany, granting David parenting time with M.M., and ordering David to

pay temporary child support. (Doc. No. 64).

{¶6} On June 11, 2013, David filed a motion for shared parenting and

submitted a “Proposed Shared Parenting Plan.” (Doc. Nos. 78, 79).

{¶7} On September 11, 2013, David filed a “Notice of Filing Bankruptcy.”

(Doc. No. 81). On September 13, 2013, Tiffany filed a “Notice of Bankruptcy

Filing.” (Doc. No. 83).

{¶8} On December 23, 2013 and February 27, 2014, David filed motions to

continue the final divorce hearing because he was incarcerated. (Doc. Nos. 88,

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92). On March 5, 2014, the magistrate denied David’s February 27, 2014 motion

requesting a second continuance of the final divorce hearing. (Doc. No. 94).

{¶9} After a hearing on July 9-10 and 14, 2014, the magistrate issued his

decision on August 7, 2014. (Doc. No. 134).

{¶10} On August 12, 2014, David filed a motion requesting extended

parenting time with M.M. (Doc. No. 138). The magistrate granted David’s

motion that same day. (Doc. No. 139). On August 18, 2014, David’s counsel

filed a motion to withdraw as counsel, which the trial court granted on August 19,

2014. (Doc. Nos. 143, 144).

{¶11} On August 19, 2014, David, pro se, filed his objections to the

magistrate’s decision—namely, the magistrate’s “findings, conclusions, and

recommendations concerning the best interest of the parties’ minor child * * *,

regarding parental rights and responsibilities.” (Doc. No. 149). After a number of

extensions, David filed his memorandum in support of his objections to the

magistrate’s decision on January 27, 2015. (Doc. No. 177). Tiffany filed her

memorandum in opposition to David’s objections to the magistrate’s decision.

(Doc. No. 183). The trial court adopted “all of the magistrate’s decision regarding

the divorce and the ending of the parties’ marriage that do not deal with the

allocation of parental rights and responsibilities,” overruled David’s objections to

the magistrate’s decision, and, after an independent analysis, adopted the

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“magistrate’s decisions on allocation of parental rights and responsibilities

including residential care, child support, and health care,” but ordered parenting

time in accordance with Loc.R. 22. (Doc. No. 184).

{¶12} On May 4, 2015, the trial court issued a final divorce decree. (Doc.

No. 188).

{¶13} David filed his notice of appeal on May 14, 2015. (Doc. No. 197).

He raises one assignment of error for our review.

Assignment of Error

The Trial Court abused its discretion by vesting the care, custody, maintenance, and control of the parties’ minor child with the Plaintiff-Mother.

{¶14} In his assignment of error, although it is unclear, it appears that

David is arguing that the trial court abused its discretion by (1) designating

Tiffany as M.M.’s legal and residential custodian, (2) denying David’s shared

parenting request, and (3) reducing his parenting time with M.M. Specifically,

David argues that the trial court’s decisions were not in M.M.’s best interest

because Tiffany’s admission of “initiating [her] minor son into illegal drug usage”

was more significant than David’s “alleged conduct of domestic violence four-

years prior.” (Appellant’s Brief at 9, 11). We will address together David’s first

and second arguments because the statute combines those issues, followed by his

third argument.

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{¶15} “Revised Code 3109.04 governs the trial court’s award of parental

rights and responsibilities.” August v. August, 3d Dist. Hancock No. 5-13-26,

2014-Ohio-3986, ¶ 22, citing King v. King, 3d Dist. Union No. 14-11-23, 2012-

Ohio-1586, ¶ 8. “The statute requires that in allocating the parental rights and

responsibilities, the court ‘shall take into account that which would be in the best

interest of the child[].’” Id., citing Self v. Turner, 3d Dist. Mercer No. 10-06-07,

2006-Ohio-6197, ¶ 6, quoting R.C. 3109.04(B)(1). “It further provides for options

available to the trial court when allocating parental rights and responsibilities:

‘primarily to one of the parents’ (R.C. 3109.04(A)(1)), or ‘to both parents’ (R.C.

3109.04(A)(2)).” Id., citing Fisher v. Hasenjager, 116 Ohio St.3d 53,

2007-Ohio-5589, ¶ 23-24 and R.C. 3109.04(A), (D), (F), (G). “Under R.C.

3109.04(D)(1)(a)(iii), where, as here, ‘only one parent makes a request’ for shared

parenting and the trial court determines that shared parenting is not in the best

interest of the child, the trial court may deny a party’s motion requesting shared

parenting and proceed as if the request for shared parenting had not been made.”

Id.

{¶16} “Where neither party files a pleading or motion requesting shared

parenting in accordance with R.C. 3109.04(G),” or where the trial court concludes

that a shared parenting plan is not in the best interest of the child,

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“the [trial] court, in a manner consistent with the best interest of the

child[], shall allocate the parental rights and responsibilities for the

care of the child[] primarily to one of the parents, designate that

parent as the residential parent and the legal custodian of the child,

and divide between the parents the other rights and responsibilities

for the care of the child[], including, but not limited to, the

responsibility to provide support for the child[] and the right of the

parent who is not the residential parent to have continuing contact

with the child[].”

Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 48, quoting

R.C. 3109.04(A)(1) and citing Frey v. Frey, 3d Dist. Hancock No. 5-06-36, 2007-

Ohio-2991, ¶ 28.

{¶17} “Further subsections of [R.C. 3109.04] spell out ten factors that the

court shall consider to determine the best interest of the child, and five more

factors to determine whether shared parenting is in the child’s best interest.”

August at ¶ 23, citing R.C. 3109.04(F)(1) and (2). “Any additional relevant factors

shall be considered as well.” Id., citing R.C. 3109.04(F)(1) and (2).

“In determining the best interest of a child [under R.C. 3109.04],

whether on an original decree allocating parental rights and

responsibilities for the care of children or a modification of a decree

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allocating those rights and responsibilities, the court shall consider

all relevant factors, including, but not limited to:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers pursuant to

division (B) of this section regarding the child’s wishes and concerns

as to the allocation of parental rights and responsibilities concerning

the child, the wishes and concerns of the child, as expressed to the

court;

(c) The child’s interaction and interrelationship with the child’s

parents, siblings, and any other person who may significantly affect

the child’s best interest;

(d) The child’s adjustment to the child’s home, school, and

community;

(e) The mental and physical health of all persons involved in the

situation;

(f) The parent more likely to honor and facilitate court-approved

parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support

payments, including all arrearages, that are required of that parent

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pursuant to a child support order under which that parent is an

obligor;

(h) Whether either parent or any member of the household of either

parent previously has been convicted of or pleaded guilty to any

criminal offense involving any act that resulted in a child being an

abused child or a neglected child; whether either parent, in a case in

which a child has been adjudicated an abused child or a neglected

child, previously has been determined to be the perpetrator of the

abusive or neglectful act that is the basis of an adjudication; whether

either parent or any member of the household of either parent

previously has been convicted of or pleaded guilty to a violation of

section 2919.25 of the Revised Code or a sexually oriented offense

involving a victim who at the time of the commission of the offense

was a member of the family or household that is the subject of the

current proceeding; whether either parent or any member of the

household of either parent previously has been convicted of or

pleaded guilty to any offense involving a victim who at the time of

the commission of the offense was a member of the family or

household that is the subject of the current proceeding and caused

physical harm to the victim in the commission of the offense; and

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whether there is reason to believe that either parent has acted in a

manner resulting in a child being an abused child or a neglected

child;

(i) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the

other parent’s right to parenting time in accordance with an order of

the court;

(j) Whether either parent has established a residence, or is

planning to establish a residence, outside this state.

Id., quoting R.C. 3109.04(F)(1).

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 enumerated in division (F)(1) of this

section, the factors enumerated in section 3119.23 of the Revised

Code, and all of the following factors:

(a) The ability of the parents to cooperate and make decisions

jointly, with respect to the children;

(b) The ability of each parent to encourage the sharing of love,

affection, and contact between the child and the other parent;

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(c) Any history of, or potential for, child abuse, spouse abuse,

other domestic violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the

proximity relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, if

the child has a guardian ad litem.”

Id., quoting R.C. 3109.04(F)(2).

{¶18} “‘Decisions concerning child custody matters rest within the sound

discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker, 2013-Ohio-1496, at ¶ 46, citing Wallace v.

Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v.

Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an award of custody is supported

by a substantial amount of credible and competent evidence, such an award will

not be reversed as being against the weight of the evidence by a reviewing

court.”’” Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 3d Dist. Hancock

No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21

(1990), syllabus. “‘Accordingly, an abuse of discretion must be found in order to

reverse the trial court’s award of child custody.’” Id., quoting Walker at ¶ 46,

citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “‘An

abuse of discretion suggests the trial court’s decision is unreasonable or

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unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-

43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

{¶19} “The trial court ‘has discretion in determining which factors are

relevant,’ and ‘each factor may not necessarily carry the same weight or have the

same relevance, depending upon the facts before the trial court.’” Id. at ¶ 29,

quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶

41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51.

“A trial court is not limited to the listed factors in R.C. 3109.04(F), but may

consider any other relevant factors in making a determination of child custody.”

Brammer at ¶ 41, citing Shaffer v. Shaffer, 3d Dist. Paulding No. 11-04-22, 2005-

Ohio-3884, ¶ 20. “Although the trial court must consider all relevant factors, there

is no requirement that the trial court set out an analysis for each of the factors in its

judgment entry, so long as the judgment entry is supported by some competent,

credible evidence.” Krill at ¶ 29, citing Meachem at ¶ 30, citing Portentoso v.

Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22. “‘[A]bsent

evidence to the contrary, an appellate court will presume the trial court considered

all of the relevant “best interest” factors listed in R.C. 3109.04(F)(1).’” Meachem

at ¶ 32, quoting Goodman v. Goodman, 3d Dist. Marion No. 9-04-37, 2005-Ohio-

1091, ¶ 18.

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{¶20} “Additionally, we note that the trier of fact is in the best position to

observe the witnesses, weigh evidence, and evaluate testimony.” Id. at ¶ 20, citing

Clark v. Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 23, citing In re

Brown, 98 Ohio App.3d 337 (3d Dist.1994). “Therefore, ‘“[a] reviewing court

should not reverse a decision simply because it holds a different opinion

concerning the credibility of the witnesses and evidence submitted before the trial

court. A finding of an error in law is a legitimate ground for reversal, but a

difference of opinion on credibility of witnesses and evidence is not.”’” Id.,

quoting Clark at ¶ 23, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

77, 81 (1984).

{¶21} First, after reviewing the relevant R.C. 3109.04(F)(1) and (2) factors,

the magistrate and trial court concluded that shared parenting is not in M.M.’s best

interest and that it is in M.M.’s best interest that Tiffany have residential and legal

custody of M.M.

{¶22} In his August 7, 2014 decision, the magistrate specifically stated that

he considered the R.C. 3109.04 factors in concluding that shared parenting is not

in M.M.’s best interest and that it is in M.M.’s best interest that Tiffany have

residential and legal custody of M.M. In particular, the magistrate found that

“[t]here is substantial, credible evidence to indicate that David has committed acts

of domestic violence against Tiffany during the course of their marriage.” (Doc.

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No. 134). In support of his finding, the magistrate noted that a civil protection

order was granted on September 1, 2010 to protect Tiffany from David and that

David was convicted of two counts of telephone harassment against Tiffany for

which he was sentenced to 30 days in jail. (Id., citing Plaintiff’s Ex. 8(a)). After

he was released from jail, David was convicted of further acts of harassment

against Tiffany for which he received 110 days in jail. (Id., citing Plaintiff’s Ex.

8(c)). The magistrate found that M.M. is “doing well” in Tiffany’s care and that

Tiffany provides for M.M.’s day-to-day needs, including taking M.M. to the

doctor, buying her clothing, bathing her, and preparing her meals. The magistrate

found that Tiffany’s family lives nearby and provides Tiffany support in taking

care of M.M. Also, the magistrate found that M.M. has a close relationship with

her maternal grandparents. While the magistrate noted that Tiffany’s admission

that she smoked marijuana with her minor son demonstrated poor judgment, the

magistrate found that it was an isolated incident that occurred two years before

and that Tiffany’s son is on the honor roll at school. The magistrate further found

that David and Tiffany’s communication is “very poor” and that David has

demonstrated “a lack of concern for following court orders[, which] appears to be

the biggest reason for his lengthy incarceration.” (Id.).

{¶23} In its March 17, 2015 decision overruling David’s objections to the

magistrate’s decision, the trial court, after an independent analysis of the R.C.

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3109.04 factors, also concluded that shared parenting is not in M.M.’s best interest

and that it is in M.M.’s best interest that Tiffany have residential and legal custody

of M.M. In particular, while the trial court found the conduct of both David and

Tiffany troubling, the trial court found the following R.C. 3109.04(F)(1) factors

relevant to its decision: R.C. 3109.04(F)(1)(a), both David and Tiffany wished to

be M.M.’s residential parent; R.C. 3109.04(F)(1)(c), M.M. has a good relationship

with both David and Tiffany and her siblings in Tiffany’s home; R.C.

3109.04(F)(1)(d), M.M. is well adjusted and well taken care of in Tiffany’s home;

R.C. 3109.04(F)(1)(f), David has a history of violating the law and court orders,

which suggests that he will be less likely to honor and facilitate court-approved

parenting time; R.C. 3109.04(F)(1)(h), David was convicted of offenses—

disorderly conduct, amended from domestic violence, and telephone harassment of

Tiffany—involving a victim, who, at the time of the commission of the offense,

was a member of the family or household; and R.C. 3109.04(F)(1)(i), there is no

evidence that Tiffany, M.M.’s current residential parent, denied David parenting

time. (Doc. No. 184).

{¶24} The trial court also found that M.M. resided with Tiffany since David

and Tiffany’s separation and that Tiffany established herself as M.M.’s primary

caregiver. The trial court found that M.M. is “well taken care of by Tiffany.”

(Id.). The trial court further found that Tiffany is able to provide M.M. a

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“suitable” physical environment and that M.M. has a strong support group of

relatives and friends in Tiffany’s care. (Id.). While the trial court found Tiffany’s

“former use of marijuana and the permitting of her son’s use of marijuana” to be

“[t]he primary detractive factor” against her, the trial court found David’s behavior

to weigh more heavily against him. (Id.).

{¶25} Challenging the trial court’s decision, David appears to assert that

either shared parenting or he being named M.M.’s legal and residential custodian

should have been granted because Tiffany’s admitted use of, and permitting her

son to use, marijuana outweighed David’s disorderly conduct conviction, which

was amended from a charge of domestic violence. However, David’s disorderly

conduct conviction is not the only factor on which the trial court relied in

concluding that shared parenting is not in M.M.’s best interest and that it is in

M.M.’s best interest that Tiffany have residential and legal custody of M.M.

Instead, the trial court examined the care M.M. is receiving with Tiffany and the

physical environment to which M.M. is exposed in Tiffany’s care in addition to

David’s and Tiffany’s conduct. In particular, the trial court, which is in the best

position to observe the witnesses, weigh evidence, and evaluate testimony,

analyzed,

This court finds troubling Tiffany’s marijuana use and, in particular,

her apparent support of her seventeen-year-old son’s marijuana use.

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On the other hand, this court finds even more troubling the conduct

of David. Whether or not he was actually convicted of a domestic

violence charge, the evidence is clear that David has a history of

violence against women. Further, the evidence demonstrates other

criminal activity on the part of David in the form of telephone

harassment charges that resulted in significant incarceration.

(Id.). David’s argument that the trial court should have put more weight on

Tiffany’s admission as opposed to his disorderly conduct conviction has no merit.

The trial court was in the best position to observe the parties during the

proceedings, and the record supports the trial court’s findings regarding David’s

conduct. (See Plaintiff’s Exs. 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g)). The trial

court’s best-interest findings are supported by some competent, credible evidence.

Thus, the trial court did not abuse its discretion by concluding that shared

parenting is not in M.M.’s best interest and that it is in M.M.’s best interest that

Tiffany have residential and legal custody of M.M.

{¶26} Next, David argues that the trial court abused its discretion by

reducing his parenting time with M.M. R.C. 3109.051 governs visitation rights of

non-residential parents and provides, in pertinent part:

“If a divorce * * * proceeding involves a child and if the court has

not issued a shared parenting decree, the court * * *, in accordance

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with division (C) of this section, shall make a just and reasonable

order or decree permitting each parent who is not the residential

parent to have parenting time with the child at the time and under the

conditions that the court directs, unless the court determines that it

would not be in the best interest of the child to permit that parent to

have parenting time with the child and includes in the journal its

findings of fact and conclusions of law. Whenever possible, the

order or decree permitting the parenting time shall ensure the

opportunity for both parents to have frequent and continuing contact

with the child, unless frequent and continuing contact by either

parent with the child would not be in the best interest of the child.”

Walton v. Walton, 3d Dist. Union No. 14-10-21, 2011-Ohio-2847, ¶ 21, quoting

R.C. 3109.051(A). See also Braatz v. Braatz, 85 Ohio St.3d 40, 44-45 (1999).

To determine whether a parenting schedule is in the child’s best

interest, R.C. 3109.051(D) directs the trial court to consider the

following factors, in part:

“(1) The prior interaction and interrelationships of the child with the

child’s parents, siblings, and other persons related by consanguinity

or affinity, and with the person who requested companionship or

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visitation if that person is not a parent, sibling, or relative of the

(2) The geographical location of the residence of each parent and the

distance between those residences, and if the person is not a parent,

the geographical location of that person’s residence and the distance

between that person’s residence and the child’s residence;

(3) The child’s and parents’ available time, including, but not limited

to, each parent’s employment schedule, the child’s school schedule,

and the child’s and the parents’ holiday and vacation schedule;

(4) The age of the child;

(5) The child’s adjustment to home, school, and community;

***

(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend

with siblings;

(9) The mental and physical health of all parties;

(10) Each parent’s willingness to reschedule missed parenting time

and to facilitate the other parent’s parenting time rights, and with

respect to a person who requested companionship or visitation, the

willingness of that person to reschedule missed visitation;

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(12) In relation to requested companionship or visitation by a person

other than a parent, * * * whether either parent previously has been

convicted of or pleaded guilty to a violation of section 2919.25 of

the Revised Code involving a victim who at the time of the

commission of the offense was a member of the family or household

that is the subject of the current proceeding; whether either parent

previously has been convicted of an offense involving a victim who

at the time of the commission of the offense was a member of the

family or household that is the subject of the current proceeding and

caused physical harm to the victim in the commission of the offense;

and whether there is reason to believe that the person has acted in a

manner resulting in a child being an abused child or a neglected

(13) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the

other parent's right to parenting time in accordance with an order of

(16) Any other factor in the best interest of the child.”

Walton at ¶ 21, quoting R.C. 3109.051(D).

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{¶27} “A trial court’s establishment of a non-residential parent’s

[parenting-time] rights is within its sound discretion and will not be disturbed on

appeal absent a showing of an abuse of discretion.” Id. at ¶ 19, citing Fordham v.

Fordham, 3d Dist. Logan No. 8-08-17, 2009-Ohio-1915, ¶ 18, citing Elson v.

Elson, 3d Dist. Shelby No. 17-04-16, 2005-Ohio-3228, ¶ 11, citing Appleby v.

Appleby, 24 Ohio St.3d 39, 41 (1986); Booth v. Booth, 44 Ohio St.3d 142, 144

(1989). “The trial court’s discretion over [parenting time] in this situation is

broader than the court’s discretion regarding child custody matters.” Walton at ¶

19, citing Elson at ¶ 11, citing State ex rel. Scordato v. George, 65 Ohio St.2d 128

(1981). “Furthermore, the trial court must exercise its discretion in the best

interest of the child.” Id., citing Bodine v. Bodine, 38 Ohio App.3d 173, 175

(1988).

{¶28} In his August 7, 2014 decision, the magistrate specifically stated that

he considered the R.C. 3109.051 factors in recommending parenting time for

David. In particular, with respect to R.C. 3109.051(D)(1), the magistrate found

that M.M. has a positive relationship with David and that relationship should be

encouraged. (Doc. No. 134). The magistrate further found that David’s residence

provides “suitable accommodations” for M.M. (Id.). However, the magistrate

noted that he “has some concerns about David being able to follow the orders of

this court.” (Id.). Furthermore, the magistrate acknowledged that the parties had

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an agreed temporary order providing David parenting time with M.M. every

Tuesday and Thursday overnight from 7:00 p.m. until the next morning and

alternating weekends under Loc.R. 22. (Id.). Yet, the magistrate noted Tiffany’s

concerns regarding David’s care of M.M.—namely, that David does not buy the

correct size pull-ups for M.M.; that David preaches to M.M. about “godly issues”;

that David has anger and mental-stability issues; that David has not properly

dressed M.M. for the weather; that David does not provide proper hygiene for

M.M.; and whether David will follow orders of the court because David “does not

always pickup or return the child as ordered.” (Id.). Nonetheless, the magistrate

found that there is no evidence in the record to indicate that David has done

anything “wrong” to M.M. (Id.). The magistrate noted that David requested the

same parenting time with M.M. as provided by the agreed temporary order and

that Tiffany requested that “David’s weeknight visits on Tuesday and Thursday

evening be limited to 5:00 p.m. to 8:00 p.m. each of those two nights, and

overnight visits should be restricted to every other weekend.” (Id.). After

weighing the best-interest factors, the magistrate concluded that David should

have parenting time with M.M. overnight on Tuesdays from 7:00 p.m. until he

drops M.M. off on his way to work the following morning; Thursdays from 5:00

p.m. until 8:00 p.m.; and alternating weekends and summer vacation as provided

by Loc.R. 22. (Id.).

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{¶29} As we stated above, the trial court found the following best-interest

factors, many of which overlap with the R.C. 3109.04 factors:

The physical environment for [M.M.] is suitable, there is a strong

support group of grandparents and friends and [Tiffany] has

established herself as the primary caregiver and [M.M.] is well taken

care of by Tiffany. The primary detractive factor for [Tiffany] is her

former use of marijuana and the permitting of her son’s use of

marijuana.

David also has significant issues. He has demonstrated over the

years anger and rage issues and criminal behavior. His conduct has

resulted in periods of incarceration and the issuance of civil

protection orders.

(Doc. No. 184).

Nevertheless, David proposes that the trial court abused its discretion when it

ordered that all provisions of the magistrate’s Decision not

pertaining to parental rights and responsibilities be adopted as

suggested by the Magistrate who oversaw the trial. However, he

down-graded the visitation time the child should have with her father

* * *.

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(Appellant’s Brief at 8). David is correct that the trial court adopted all provisions

of the magistrate’s decision not pertaining to parental rights and responsibilities—

that is, provisions pertaining to shared parenting of M.M., M.M.’s legal and

residential custodian, and parenting time with M.M. In doing so, as we stated

above, the trial court considered the R.C. 3109.04 best interests factors. However,

the trial court concluded that M.M.’s best interests are better served through a

parenting-time schedule in accordance with Loc.R.22 than the parenting-time

schedule proposed by the magistrate.

{¶30} As the First District Court of Appeals contemplated in In re Ross,

“the record does not demonstrate that the trial court ignored the magistrate’s

findings of fact. The [trial] court simply disagreed with the magistrate’s proposed

parenting-time schedule.” 154 Ohio App.3d 1, 2003-Ohio-4419, ¶ 8 (1st Dist.).

“The trial court, in reviewing the magistrate’s decision, may adopt or reject the

decision in whole or in part and may make modifications to the decision.” Hewitt

v. Hewitt, 3d Dist. Union No. 14-08-48, 2009-Ohio-6525, ¶ 46, citing Juv.R.

40(D)(4)(b). “Additionally, when ruling on objections to the magistrate’s

decision, the trial court must ‘undertake an independent review as to the objected

matters to ascertain that the magistrate has properly determined the factual issues

and appropriately applied the law.’” Id., quoting Juv.R. 40(D)(4)(d) and citing In

re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-943, ¶ 7. “The [trial] court, after

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reviewing the record before the magistrate, is free to disagree with the magistrate’s

conclusions and to enter an order it finds to be in the child’s best interest. In re

Ross at ¶ 8, citing In re Etter, 134 Ohio App.3d 484 (1st Dist.1998) and In re

Wooldridge, 1st Dist. Hamilton No. C-980545, 1999 WL 650615 (Aug. 27, 1999).

The trial court has broad discretion in determining a parenting-time schedule that

is just and reasonable. Walton, 2011-Ohio-2847, at ¶ 19. After reviewing the

record and the magistrate’s findings and recommendation, the trial court

concluded that M.M.’s best interest is better served through a parenting-time

schedule as provided by Loc.R. 22. The trial court did not abuse its discretion by

rejecting the magistrate’s proposed parenting-time schedule and adopting its own

parenting-time schedule because the trial court’s best-interest determination is

supported by some competent, credible evidence and is just and reasonable. See

{¶31} David’s assignment of error is overruled.

{¶32} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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