Mogg v. McCloskey

2013 Ohio 4358

• Court: Ohio Court of Appeals
• Decided: September 30, 2013
• Docket: 12 MA 24
• Status: Published

Opinion

[Cite as Mogg v. McCloskey, 2013-Ohio-4358.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

LAURA MOGG ) CASE NO. 12 MA 24 ) PLAINTIFF-APPELLEE ) CROSS-APPELLANT ) ) VS. ) OPINION ) RANDY McCLOSKEY ) ) DEFENDANT-APPELLANT ) CROSS-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio Case No. 08 DR 613

JUDGMENT: Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellee/Cross-Appellant: Atty. Louis Katz 70 West McKinley Way Poland, Ohio 44514

For Defendant-Appellant/Cross-Appellee: Atty. Christopher P. Lacich Atty. David S. Barbee Roth, Blair, Roberts, Strasfeld & Lodge 100 Federal Plaza East, Suite 600 Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 30, 2013 [Cite as Mogg v. McCloskey, 2013-Ohio-4358.] WAITE, J.

{¶1} This matter comes to us on appeal from the trial court’s decision to

terminate shared parenting. Father, Randy McCloskey, Appellant and Cross-

Appellee, filed a motion seeking to be named residential parent for schooling

purposes. Mother, Laura Mogg, Appellee and Cross-Appellant, opposed father’s

motion and filed a motion to terminate shared parenting. Father now appeals the trial

court’s decision denying his motion and granting mother’s motions. Mother, in her

cross-appeal, challenges the trial court’s decision to grant more than the minimum

amount of parenting time to father and appeals the deviation ordered by the trial

court from the presumed child support amount.

{¶2} Although ample material appears in the record to support the trial

court’s decision to terminate shared parenting, the trial court did not make the

necessary findings or adopt and incorporate the magistrate’s findings in its final

order. Similarly, the magistrate made specific findings concerning parenting time, but

the trial court did not adopt or incorporate those findings. Nor did the court make the

necessary determination that its decision regarding parenting time is in the best

interest of the child. Unlike the state of the record as to termination of shared

parenting, the support ruling challenged by mother in her cross-appeal does not

appear to be supported by appropriate evidence of record. For these reasons, the

trial court’s decision is reversed in its entirety and the matter is remanded for further

proceedings.

Factual and Procedural History -2-

{¶3} Mother and father were married on February 10, 2001. A single minor

child R.M., was born of the marriage on July 27, 2003. The parties’ marriage was

dissolved by decree on December 23, 2008. The decree of dissolution incorporated

a shared parenting plan negotiated by the parties which was adopted by the court.

Under the shared parenting plan, mother was designated as the residential parent for

school purposes. As a result, R.M. attended Canfield Schools. At the time of

dissolution and for several years after, mother, R.M. and at least two other children

lived with mother’s parents in Canfield. The shared parenting plan divided parenting

time equally between father and mother on an alternating weekly schedule. The

parties initially agreed to a child support amount far less than the presumptively

correct amount prescribed by the statutory worksheet, and later reduced it even

further by agreement.

{¶4} In March of 2011, father was preparing to pick up R.M. for a mid-week

visit. Shortly before, mother notified father that she and R.M. had moved and gave

him the new address. Father also learned that due to the move mother had

withdrawn R.M. from the Canfield school system. Father initially believed that R.M.

would be attending Youngstown schools, but later learned that mother had enrolled

R.M. in Austintown, which has open enrollment, is near mother’s new home, and is a

“blue ribbon” school.

{¶5} Father filed a motion for modification of parental rights and

responsibilities but did not seek any other change in the existing shared parenting

plan. Father asked to be designated R.M.’s residential parent for schooling -3-

purposes, so that he could place R.M. in the Jackson-Milton school system. Mother,

however, asked the court to terminate shared parenting. She sought to have the

court designate her as the residential parent for R.M. and address child support,

health care coverage, and the allocation of the dependent child income tax

exemption. Mother’s motion for reallocation of parental rights did not address

parenting time. The parties were unable to resolve the matter in mediation and a

guardian ad litem was appointed for R.M.

{¶6} Mother testified that R.M. spends the majority of the child’s afterschool

time with the paternal grandparents, not with father, when she is available to care for

R.M. after school. Mother takes care of the large majority of R.M.’s medical and

school-related needs and is extremely involved in R.M.’s education. Father, on the

other hand “feels that it is [R.M.’s] teachers’ job to educate [R.M.], and that it is not

generally a parent’s responsibility to educate their children.” He does not verify

whether R.M. has completed homework when R.M. stays at his house. (10/7/11

Magistrate’s Dec., ¶32.) R.M. sometimes turns in incomplete assignments that were

to be completed during father’s parenting time. (10/7/11 Magistrate’s Dec., ¶32).

Father has disappointed and upset R.M. by not attending school functions.

{¶7} The magistrate found that father was intentionally uncooperative,

uncommunicative, and disdainful of mother. The magistrate concluded that father did

not understand the importance of communication, cooperation, and flexibility

regarding the parenting schedule, and belittled or ignored mother in R.M.’s presence.

(10/7/11 Magistrate’s Dec., ¶30.) Father regularly refused to communicate verbally -4-

with mother; evidence of this behavior included his failure to explain the presence of

a new medication with R.M.’s things when asked. (10/7/11 Magistrate’s Dec., ¶25.)

Father denigrated mother and R.M.’s Catholic faith. Father’s openly negative attitude

toward mother was demonstrated by tombstone-style signs he decorated his yard

with at Halloween aimed at mother and which he admitted to the guardian ad litem

were inappropriate. Father apparently discouraged (or never encouraged) R.M. from

purchasing gifts for mother on holidays.

{¶8} The guardian ad litem acknowledged that father needed to change his

pattern of interaction with mother and adjust his behavior to foster a positive

relationship between R.M. and mother and that the parties had, to date, failed to

cooperate and engage in joint decision making. The guardian noted that mother,

unlike father, did foster “the sharing of love, affection, and contact between the minor

child and the other parent.” (10/7/11 Magistrate’s Dec., ¶53.) The guardian ad litem

nevertheless recommended that the parties continue under the shared parenting plan

and that father be designated the residential parent for schooling purposes. The

guardian ad litem specifically based his recommendation on the belief that, in the

future, the parties would be able to cooperate and make joint decisions despite the

fact that he recognized that no joint decision making or cooperation had occurred to

date.

{¶9} The magistrate’s decision includes eighty-seven findings of fact and

extensive references to testimony, and explicitly addresses the statutory factors

contained in R.C. 3109.04(E)(2)(c), (F)(1), and (F)(2). The magistrate noted that -5-

father’s intentionally uncooperative behavior had continued since the marriage

dissolved, found father’s behavior appalling, and emphasized that “stubbornly

refus[ing] to cooperate in virtually any way” was causing harm to R.M. that father

would not acknowledge. (10/7/11 Magistrate’s Dec., ¶63.) The magistrate

concluded: “Frankly, it is hard to imagine a situation where parents would be less

able to cooperate and make joint decisions, except for a case involving domestic

violence.” (10/7/11 Magistrate’s Dec., ¶70.)

{¶10} The magistrate and the court did not rely on the guardian ad litem’s

opinion and instead focused on the fact that, although the parties shared equal time

with R.M., they had not at any time engaged in true shared parenting. The

magistrate ultimately stated:

* * * it would be in the best interest of the minor child for shared

parenting to be terminated. The parties cannot cooperate and make

joint decisions. [Mother] has the ability to encourage the sharing of

love, affection, and contact between [R.M.] and [father], however

[father], while being capable of following the parenting time schedule to

the minute, does not currently have the ability to encourage the sharing

of love and affection between [R.M.] and [mother]. The parties to this

case are simply and totally unable to communicate, cooperate and

make joint decisions. They cannot even discuss [R.M.]’s prescribed

medication. They do not amicably exchange [R.M.]’s clothing and other

personal property on a regular basis. They cannot work out even minor -6-

changes to the parenting time schedule. They cannot agree on

religious issues regarding their [child].

(10/7/11 Magistrate’s Dec., ¶70.) The magistrate decided that it would be in the best

interest of R.M. for shared parenting to be terminated and designated mother the

residential parent.

{¶11} Having made findings on each of the sixteen points included in R.C.

3109.051, the magistrate ordered father be granted parenting time according to the

following schedule:

[D]uring the school year, every other weekend, from Friday at 6:00 p.m.

through Tuesday morning when he shall be responsible for transporting

the minor child to school. On the Wednesday prior to his weekend

parenting time, [father] shall be entitled to parenting time from 5:00 p.m.

to 8:00 p.m. On the Thursday following his weekend of parenting time,

[father] shall be entitled to parenting time from 5:00 p.m. until 8:00 p.m.

During the summer months, the parties shall follow the schedule

contained in the Local Parenting Time Schedule[.] * * * For holidays and

other days of special importance, each party shall be entitled to

parenting time in accordance with the Local Parenting Time Schedule

attached as Exhibit A which is incorporated as if fully rewritten herein.

(Emphasis sic.)

(10/7/11 Magistrate’s Dec., ¶79.) In the original shared parenting plan, the parties

split time with R.M. weekly from Sunday at 6 p.m. to Sunday at 6 p.m. with mid-week -7-

parenting for each parent when R.M. stayed with the other on Wednesday from 4

p.m. to 8 p.m. The parties followed the local parenting time schedule for “holidays

and vacations other than summer vacation.” (12/23/08 Shared Parenting Plan,

Article 3 and 4.) The local parenting time schedule for summer vacation is the same

schedule the parties already used.

{¶12} The parenting time schedule ordered by the magistrate gave father

approximately 1.5 additional days, every other week, during the school year than the

standard award. However, his parenting time mid-week was reduced by one hour,

year round, and the time father spent with R.M. every other week during the school

year was reduced, to three full twenty-four hour periods and 6 p.m. Monday until he

drops R.M. off for school Tuesday morning (approximately an additional half day).

The magistrate found that additional parenting time with father was in R.M.’s best

interest, because R.M. was accustomed to spending almost equal time with both

parents and had good relationships with both parents. (10/7/11 Magistrate’s Dec.,

¶80.)

{¶13} Mother also requested a modification of child support, provisions for

health insurance coverage, and the allocation of the depending child tax exemption.

The magistrate found that mother had an annual gross income of $46,751.00 from

Youngstown City Schools, pays $750.00 per year in union dues, and provides health

insurance for R.M. at a cost of $744.00 per year. The magistrate found father’s

income to be $47,000.00 with union dues of $2,200.00 per year and insurance for

R.M. at no cost. Under the Ohio Child Support Guidelines, R.C. 3119.02, father’s -8-

presumptively correct child support obligation would be $5,688.18 per year

(approximately $474 a month without a processing fee). Under the shared parenting

plan the parties had waived the child support calculation and instead father paid an

agreed amount of $150 per month. This original amount was later reduced by the

court to $100 per month in June, 2010, when a motion for reduction filed by father

was granted. Although the presumptively correct amount in 2012 was $5,688.18, the

magistrate recommended a 40% reduction in the support award “based on the

parenting time schedule.” (10/7/11 Magistrate’s Dec., ¶84.) With this deviation, the

monthly amount of support awarded by the court was $284.14 ($290.10 total with the

processing fee). Although the worksheet computation was attached as Exhibit B to

the magistrate’s decision, no evidence in support was taken and no rationale for the

amount of the deviation was provided by the magistrate. The magistrate awarded

mother the tax dependent child exemption. (10/7/11 Magistrate’s Dec., ¶85-87.)

{¶14} Both father and mother filed timely objections to the magistrate’s

decision. Father challenged a number of findings and sought to reinstate shared

parenting but have the decision modified to name him residential parent for

schooling. Mother’s objections challenged both the magistrate’s decision to allocate

parenting time beyond the standard local schedule and the deviation ordered by the

magistrate from the presumptively correct support amount.

{¶15} The trial court’s judgment entry addressed each of the parties’

objections, found the large majority of father’s factual objections untimely, unfounded,

and/or meritless and the remainder of father’s objections harmless. While father -9-

attempted to attach new evidence to his objections, the trial court did not consider

this evidence because it was material that would have been available, “with

reasonable diligence,” at the time of the hearing. (1/17/12 J.E., pp. 8-9.) The trial

court also rejected mother’s objection to the parenting time schedule and to the

deviation from the presumptively correct support calculation. The court explained

that a reduction in support was appropriate due to father’s increase in parenting time

over the local schedule, the similarity in the parties’ incomes, and the significantly

lower support mother originally agreed to in the shared parenting agreement

executed when the parties had a greater disparity in income. No discussion of the

best interest of the child appears in the court’s decision.

{¶16} The court rejected mother’s concerns regarding father’s vacation

schedule and stated that if father did not comply with the schedule, mother’s remedy

was to seek a contempt order. The court rejected mother’s factual objections

concerning the magistrate’s findings as harmless error.

{¶17} The trial court issued a judgment entry denying both parties’ objections

to the magistrate’s decision and terminating shared parenting. The trial court

restated and adopted the rulings in the magistrate’s decision. The trial court did not

include its own factual findings concerning these orders, did not make any findings

concerning the best interest of the child, and did not specifically adopt or incorporate

the factual findings made by the magistrate.

{¶18} Father filed a timely appeal of the trial court’s order. Mother filed a

timely cross-appeal of the same entry. -10-

Assignment of Error

The trial court erred and abused its discretion by disregarding relevant

evidence and statutory factors; by placing little or no weight on

Appellee’s improper conduct; by disregarding the Guardian Ad Litem’s

recommendation, and by terminating the parties’ shared parenting plan

{¶19} A trial court’s ruling on a motion to terminate a shared parenting

agreement is reviewed for an abuse of discretion. Kougher v. Kougher, 194 Ohio

App.3d 703, 2011-Ohio-6411, 957 N.E.2d 703 (7th Dist.). Abuse of discretion

connotes more than an error of law or of judgment; it implies that the court's attitude

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the abuse of discretion

standard, a reviewing court is not free to merely substitute its judgment for that of the

trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

“The term discretion itself involves the idea of choice, of an exercise of the will, of a

determination made between competing considerations. In order to have an ‘abuse’

in reaching such determination, the result must be so palpably and grossly violative

of fact and logic that it evidences not the exercise of will but perversity of will, not the

exercise of judgment but defiance thereof, not the exercise of reason but rather of

passion or bias.” Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d

1248, 1252 (1985).

{¶20} The decision to terminate a shared parenting plan is governed by R.C.

3109.04(E)(2)(c) and must, in every instance, be made in the best interest of the -11-

child. Under R.C. 3109.04(E)(2)(c) “[t]he court may terminate a prior final shared

parenting decree that includes a shared parenting plan * * * whenever it determines

that shared parenting is not in the best interest of the child.” If a court terminates

shared parenting, “the court shall proceed and issue a modified decree for the

allocation of parental rights and responsibilities for the care of the child * * * as if no

decree for shared parenting had been granted and as if no request for shared

parenting ever had been made.” R.C. 3109.04(E)(2)(d). A court is not required to

find a change in circumstances before deciding to terminate a shared parenting plan.

Rather, the decision to terminate the plan may be made by the court sua sponte at

any point when the court determines it is no longer in the best interest of the child.

Kougher, supra.

{¶21} A decision to allocate parental rights after the termination of shared

parenting is governed by the same sections that control an original decision, R.C.

3109.04(A), (B), and (C). Under these sections the court “shall allocate the parental

rights and responsibilities for the care of the children 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

children, including, but not limited to, the responsibility to provide support for the

children and the right of the parent who is not the residential parent to have

continuing contact with the children.” R.C. 3109.04(A)(1). When determining the

best interest of the child with regard to an allocation of parental rights “the court shall

consider all relevant factors, including, but not limited to:” -12-

(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 * * * 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

***

(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 * * * -13-

(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.

R.C. 3109.04(F)(1). In addition to the above and “all relevant factors,” when

determining whether shared parenting (or in this instance, continued shared

parenting) is in the best interest of the child, the court “shall also consider * * * 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;

(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.

R.C. 3109.04(F)(2). -14-

{¶22} The magistrate’s decision directly addresses each of the statutory

factors concerning the termination of shared parenting. The trial court’s judgment

entry, however, does not include any findings or address the statutory factors. The

trial court’s decision does not reference, specifically incorporate, or attach the factual

findings made by the magistrate. The trial court addresses only those factual

determinations in the magistrate’s decision to the extent necessary to address the

parties’ objections. As to father’s objections, the trial court implicitly accepts the

magistrate’s findings on each point and overrules father’s objections. All of father’s

arguments on appeal are substantial restatements of objections made to the

magistrate’s decision that were overruled by the trial court in its final entry.

{¶23} Father’s belief that the trial court should have adopted in total the

recommendation of the guardian ad litem mistakes the role of the guardian’s report in

combination with the other factors the court must weigh and consider under R.C.

3109.04(F)(1) and (2):

The role of the trial court is to act as the fact finder and to exercise

independent judgment in determining the best interests of the children.

A trial court may not simply adopt the conclusion of a guardian ad litem

without further inquiry into the children’s best interest; rather, the court

must consider all available evidence. The report of a guardian ad litem

is merely an aid to the trial court and but one factor the court must

consider when allocating parental rights and responsibilities.

(Emphasis sic.) (Internal citations omitted.) -15-

Collins v. Collins, 12th Dist. No. 2009-09-023, 2001 WL 1218900, *3 (October 15,

2001). Father has not identified a defect in the law applied nor does he dispute the

facts. Instead, he contends that the court should have reached a different conclusion

in weighing these facts. Father believes that mother’s decision to abruptly move

without permission of the court was a severe enough transgression that she should

be punished for this action by automatically losing her status as residential parent.

Father’s emphasis on mother’s decision to move is misplaced. A court’s custody

decision may not be punitive and a court making a custody determination does not

decide which parent should be punished for prior behavior. The court is required to

evaluate each parent’s ability to cooperate and place the child’s interest above their

own feelings in a parenting context. In this instance the magistrate found that a

move of insignificant distance, even though not pre-approved by the court, was not

dispositive in its evaluation.

{¶24} The evidence in the record demonstrates that although father rigidly

adhered to a single aspect of the shared parenting plan, the parenting time schedule,

he completely ignored all other aspects of “shared” parenting, including his essential

responsibilities to foster a positive relationship between R.M. and mother, engage

with mother in the joint decision making, and abide by the decisions concerning

R.M.’s religious education that were made during the marriage. The trial court

indicates in paragraphs 2 and 3, 5–10, 12, and 13 of the final judgment entry that it

shares the magistrate’s conclusion that the parties have demonstrated a complete

inability to engage in shared parenting. The trial court concludes: -16-

The overwhelming evidence in this case is that [father] does not have

the present ability to communicate with [mother]. He does not have the

present ability to cooperate with [mother]. He does not have the

present ability to make joint decisions that affect the child’s best interest

with [mother]. While [father] started counseling during the pendency of

this action to help remedy some of these issues, the fact remains that

he does not have the present ability at this time. Therefore, the Court

finds no error with the Magistrate terminating the parties’ shared

parenting plan and designating [mother] as residential parent.

(1/17/12 J.E., pp. 11-12.) In overruling father’s objections concerning the termination

of shared parenting and designation of mother as residential parent, the trial court

cited Bechara v. Essad, 7th Dist. No. 03 MA 34, 2004-Ohio-3042 for the principle that

shared parenting is only in the child’s best interest “if there is a successful shared

parenting arrangement. ‘Successful shared parenting requires at least two things.

One is a strong commitment to cooperate. The other is a capacity to engage in the

cooperation required.’” (1/17/12 J.E., p. 11.) In this instance, as in Bechara, there

appears to be competent, credible evidence that supports a conclusion that shared

parenting is not in the best interest of R.M.

{¶25} The magistrate’s decision and the trial court’s judgment entry, taken

together, reflect that the applicable law was applied to the relevant facts before

shared parenting was terminated and mother designated the residential parent. The

trial court’s judgment entry, however, does not contain all of the necessary -17-

determinations. It is the trial court’s own ruling, not the magistrate’s opinion on a

motion to terminate shared parenting, that must comply with the requirements of R.C.

3109. The court must itself consider the listed factors, in addition to all other relevant

factors, and conclude on the record whether termination is in the best interest of the

child. What the trial court did in this instance was conduct a thorough review and

analysis of the objections to the magistrate’s decision that implicitly reflects that the

trial court agrees with the magistrate’s findings of fact and conclusions of law,

findings and conclusions that we note are amply supported by the evidence in the

record. The trial court entered a decision that disposes of all motions, terminates

shared parenting, and designates mother the residential parent, but omits the trial

court’s essential independent determination that, having considered the relevant

evidence and all statutory factors, ending shared parenting is in the best interest of

the child. While this conclusion may be inferred from the trial court’s decision of the

objections, the omission of the trial court’s own findings and ruling as to the best

interest factors renders what is otherwise an extremely thorough entry incomplete.

{¶26} It is axiomatic that “[j]udgments that simply deal with the objections and

adopt a magistrate’s decision are not final judgments because they only address

whether the decision should be adopted. They do not inform the parties of the trial

court’s own judgment in the matter they have placed before it.” (Citation omitted.) In

re Dayton, 7th Dist. No. 02 JE 20, 2003-Ohio-1240, ¶9. The trial court’s decision that

the magistrate did not err in deciding that shared parenting should be terminated is -18-

not a substitute for the trial court’s entry of final judgment that contains the necessary

factual findings and best interest determination on the issue.

{¶27} Hence, while Appellant’s assignment of error otherwise appears to be

without merit, we must reverse the decision of the trial court for entry of an order that

includes the trial court’s judgment as to the best interest of the child with regard to the

termination of shared parenting and the designation of a residential parent in

compliance with R.C. 3109.04 and/or the trial court’s decision to adopt and

incorporate the magistrate’s findings on this issue.

{¶28} Turning to the cross-appeal, mother identifies five assignments of error

which raises two issues. Four of the five assignments of error address child support;

the remaining assignment concerns parenting time. Mother’s fifth cross-assignment

of error will be discussed first out of order. Her remaining four cross-assignments will

be considered together.

Cross- Assignment of Error V

WHEN THERE WAS NEVER A REQUEST FOR ADDITIONAL

PARENTING TIME TO THAT PROVIDED FOR IN THE LOCAL

PARENTING TIME SCHEDULE NOR ANY EVIDENCE PRESENTED

REGARDING ADDITIONAL PARENTING TIME THEN THE TRIAL

COURT ERRED AS A MATTER OF LAW IN GRANTING FATHER

ADDITIONAL PARENTING TIME. -19-

{¶29} Where there is no shared parenting decree, or shared parenting has

been terminated, a trial court’s decision to grant parenting time is governed by R.C.

3109.051. Part (A) of that section charges the court to:

[issue a] just and reasonable order or decree permitting each parent

who is not the residential parent to have parenting time with the child * *

* . 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. The court shall include in its final decree a specific schedule of

parenting time for that parent.

R.C. 3109.051(D) instructs the court to consider 16 factors, of which the following are

relevant in this instance:

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

distance between those residences, * * *

(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; -20-

(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 * * *

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

Each common pleas court is required by R.C. 3109.051(F)(2) to adopt standard

parenting time guidelines. However, when deciding how to divide parenting time “[a]

court shall have discretion to deviate from its standard parenting time guidelines

based upon factors set forth in division (D) of this section.” R.C. 3109.051(F)(2).

{¶30} A trial court’s decision allocating parenting time is reviewed for an

abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028

(1988). A court abuses its discretion when it makes a decision that is unreasonable,

arbitrary, or unconscionable. Blakemore, supra. The central focus of any visitation

order is the best interest of the children. Kelm v. Kelm, 92 Ohio St.3d 223, 226, 749

N.E.2d 299 (2001). “A trial court may limit or restrict visiting rights of a party in order

to further the child's best interest.” Callender v. Callender, 7th Dist. No. 03-CA-790, -21-

2004-Ohio-1382, at ¶31. The court has the “power to restrict the time and place of

visitation, to determine the conditions under which visitation will take place and to

deny visitation rights altogether if visitation would not be in the best interests of the

child.” Id., quoting Anderson v. Anderson, 147 Ohio App.3d 513, 2002-Ohio-1156,

771 N.E.2d 303, at ¶18, and Jannetti v. Nichol, 7th Dist. No. 97 CA 239 (May 12,

2000).

{¶31} Mother contends that the trial court erred in awarding father

approximately 1.5 additional days of parenting time every other week during the

school year above the time allowed for a non-residential parent under the trial court’s

local time schedule. Mother contends that because father did not request additional

time he was not entitled to time beyond the standard amount. Mother is mistaken.

R.C. 3109.051(A) specifically charges the court to “ensure the opportunity for both

parents to have frequent and continuing contact with the child.” Although the court is

required to have a default parenting schedule, nothing in the statute requires the

automatic imposition of the local schedule. The statute expressly reserves the trial

court’s discretion to tailor the parenting time schedule. The factors included in part

(D) of the statute require the court to make a wide-ranging analysis of each individual

situation before determining the appropriate amount of parenting time.

{¶32} Unfortunately, the trial court’s decision on this issue has the same

defect as the decision to terminate shared parenting: the court does not adopt the

magistrate’s decision nor does it make its own finding that additional parenting time is

in the best interest of the child. While the trial court’s agreement with the -22-

magistrate’s conclusion is evident from the trial court’s ruling on mother’s objection to

the magistrate’s decision, the necessary elements of the best interest finding and the

application of R.C. 3109.051 cannot be implied from the language of the trial court’s

final order. This omission is compounded by a lack of evidence in the record

addressing the child’s best interest with regard to parenting time. Because the ruling

does not contain the necessary findings, we cannot review with any accuracy

mother’s cross-assignments of error. Thus, the trial court’s decision must be

reversed and remanded so that the court may adopt a judgment entry that reflects

that trial court’s findings and is in compliance with R.C. 3109.051.

Cross-Assignment of Error I

WHEN THERE WAS NEVER A REQUEST FOR A CHILD SUPPORT

DEVIATION, NOR ANY EVIDENCE PRESENTED AS TO A CHILD

SUPPORT DEVIATION THEN THE TRIAL COURT ERRED AS A

MATTER OF LAW IN GRANTING A DEVIATION FROM THE

PRESUMPTIVELY CORRECT CHILD SUPPORT WORKSHEET

AMOUNT.

Cross-Assignment of Error II

THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING A

DEVIATION FROM THE PRESUMPTIVELY CORRECT CHILD

SUPPORT WORKSHEET AMOUNT WHEN THE FATHER FAILED TO

PRESENT ANY EVIDENCE AS TO A DEVIATION.

Cross-Assignment of Error III -23-

AS THE TRIAL COURT FAILED TO SET FORTH ANY FINDINGS OF

FACT WHY THE PRESUMPTIVELY CORRECT CHILD SUPPORT

WORKSHEET AMOUNT WOULD NOT BE IN THE PARTIES’ CHILD’S

BEST INTEREST THEN THE TRIAL COURT ERRED AS A MATTER

OF LAW IN GRANTING A DEVIATION FROM THE CHILD SUPPORT

WORKSHEET AMOUNT.

Cross-Assignment of Error IV

AS BOTH THE MAGISTRATE’S DECISION AND THE TRIAL

COURT’S JUDGMENT ENTRY FAIL TO SET FORTH AN

EXPLANATION AS TO HOW THEY ARRIVED AT A 40%

DOWNWARD DEVIATION FROM THE PRESUMPTIVELY CORRECT

CHILD SUPPORT WORKSHEET AMOUNT THEN THE TRIAL

COURT’S JUDGMENT IS ERRONEOUS AS A MATTER OF LAW.

{¶33} The remainder of mother’s cross-assignments of error all address the

propriety of the decision to decrease the presumptively correct child support amount

by 40%. For this reason, they will be addressed together. Unlike decisions

concerning shared parenting and parenting time schedules, which are guided by

statute but left to a trial court’s discretion, the amount of child support is primarily

determined by the basic child support schedules and the applicable worksheets

pursuant to R.C. 3119.02. A trial court’s discretion with regard to child support is

limited. A court evaluating child support “shall calculate the amount of the obligor’s

child support obligation in accordance with the basic child support schedule, the -24-

applicable worksheet, and other provisions of sections 3119.02 to 3119.24.” R.C.

3119.02.

{¶34} The basic support schedule, codified as R.C. 3119.021, considers the

combined gross income of the parents, unless it is below or above the statutory

thresholds of $6600.00 and $150,000.00. The parties’ combined gross income in this

instance is within the range covered by R.C. 3119.021. R.C. 3119.022 codifies the

worksheet a court is required to use when making the support calculation. The

worksheet considers the income of each parent relative to the shared support

obligation and allows for other support and tax obligations. A child support

determination “calculated pursuant to the basic child support schedule and applicable

worksheet through the line establishing the actual annual obligation, is rebuttably

presumed to be the correct amount of child support due.” R.C. 3119.03. R.C.

3119.05 governs how a court is to arrive at a gross income amount for each parent.

{¶35} If, having complied with R.C. 3119.02 et seq., the trial court decides

that the schedule amount is not appropriate, the court may decide to deviate from the

presumptively correct child support amount. A court is permitted to order a child

support amount that deviates from the amount of support “that would otherwise result

from the use of the basic child support schedule and the applicable worksheet * * * if

* * * the court determines that the amount * * * would be unjust or inappropriate and

would not be in the best interest of the child.” R.C. 3119.22. If a court elects to

deviate, the court must cite to factual findings in support of that decision in

compliance with R.C. 3119.23, which provides: -25-

The court may consider any of the following factors in determining

whether to grant a deviation pursuant to section 3119.22 of the Revised

Code:

(A) Special and unusual needs of the children;

(B) Extraordinary obligations for minor children or obligations for

handicapped children who are not stepchildren and who are not

offspring from the marriage or relationship that is the basis of the

immediate child support determination;

(C) Other court-ordered payments;

(D) Extended parenting time or extraordinary costs associated with

parenting time, provided that this division does not authorize and shall

not be construed as authorizing any deviation from the schedule and

the applicable worksheet, through the line establishing the actual

annual obligation, or any escrowing, impoundment, or withholding of

child support because of a denial of or interference with a right of

parenting time granted by court order;

(E) The obligor obtaining additional employment after a child support

order is issued in order to support a second family;

(F) The financial resources and the earning ability of the child;

(G) Disparity in income between parties or households; -26-

(H) Benefits that either parent receives from remarriage or sharing

living expenses with another person;

(I) The amount of federal, state, and local taxes actually paid or

estimated to be paid by a parent or both of the parents;

(J) Significant in-kind contributions from a parent, including, but not

limited to, direct payment for lessons, sports equipment, schooling, or

clothing;

(K) The relative financial resources, other assets and resources, and

needs of each parent;

(L) The standard of living and circumstances of each parent and the

standard of living the child would have enjoyed had the marriage

continued or had the parents been married;

(M) The physical and emotional condition and needs of the child;

(N) The need and capacity of the child for an education and the

educational opportunities that would have been available to the child

had the circumstances requiring a court order for support not arisen;

(O) The responsibility of each parent for the support of others;

(P) Any other relevant factor. -27-

The court may accept an agreement of the parents that assigns a

monetary value to any of the factors and criteria listed in this section

that are applicable to their situation.

If the court grants a deviation based on division (P) of this section, it

shall specifically state in the order the facts that are the basis for the

deviation.

The magistrate in this instance conclusively found that the presumptively correct

amount of child support would be unjust or inappropriate and not in the best interest

of the child. However, the magistrate did not explain how this conclusion was

reached or establish the basis of his calculation that resulted in a 40% downward

deviation. The evidence of the record likewise does not appear to support this

decision.

{¶36} The facts referenced by the trial court explaining the deviation are

irrelevant to a support determination and do not provide a basis for deviation. The

primary consideration in any support determination is the best interest of the child.

R.C. 3119.22. The similarity in the parties’ incomes, without evidence of additional

contributions or other expenses that should be offset, is not a basis for deviation.

Similarly, the disparity in the incomes of the parties in 2008 is not a factor to consider

when making a support calculation in 2012. The court has terminated the shared

parenting plan. The amount of support agreed to in 2008 is in no way reflective of

the best interest of the child in 2012 or 2013. Inasmuch as the parties’ incomes have

changed since they initiated their shared parenting plan, so too have their living -28-

situations and the needs of the child. The factors a court may consider are designed

to address extraordinary or unusual circumstances and large disparities in income

and resources between the parties. The worksheet itself accounts for incomes that

are similar. No deviation is merited due to similar incomes. While it is true that father

was allowed a small increase in parenting time, the deviation in time allowed does

not appear to amount to an extraordinary circumstance in order to support a 40%

reduction in the presumptively correct amount. Nothing in the record before us

suggests, given the parties’ proximity, the lack of extraordinary health concerns, and

the apparent absence of any other burden on father’s income, that a 40% deviation

would be in the best interest of the child.

{¶37} The trial court’s decision in this instance does not include factual

findings that justify a 40% deviation. The factual basis proposed by the trial court’s

ruling on mother’s objection to the magistrate’s decision appears to provide an

arbitrary basis for the decision to adopt the trial court’s 40% deviation. Due to the

omission of the trial court’s own findings from the judgment entry, we cannot

adequately review this assignment. Hence, the trial court’s decision as to the

calculation of child support is reversed for lack of a final order and the matter is

remanded for a support calculation that complies with R.C. 3119.02 et seq. and

considers those factors identified by statute as being in the child’s current best

interest.

Conclusion -29-

{¶38} The trial court’s judgment entry terminating the parties’ shared

parenting plan, naming mother residential parent and establishing a parenting

schedule that deviated slightly from the standard local parenting time schedule, omit

the necessary findings by the trial court. The trial court’s rulings on the parties’

objections to the magistrate’s decision seem to indicate the trial court’s intention to

accept the magistrate’s findings of fact, however, the necessary language was

omitted from the final entry. While the trial court has discretion to set parenting time

on a schedule that differs from the standard order, the court must give its reasons for

so doing in the order. The child support determination does not reflect compliance

with R.C. 3119.02 et seq. and the relevant evidence in the record on this issue does

not appear to support the disproportionate deviation ordered by the magistrate in the

absence of extraordinary circumstances. For these reasons, the trial court’s decision

is reversed in its entirety and the matter is remanded for any necessary proceedings

and the entry of a judgment that reflects the trial court’s findings and final order on

each issue.

Donofrio, J., concurs.

Vukovich, J., concurs.