Palichat v. Palichat

Ohio Court of Appeals

Palichat v. Palichat

2019 Ohio 1379

CourtOhio Court of Appeals

DecidedApril 12, 2019

Docket2018-CA-42

StatusPublished

Cited by7 cases

This text of 2019 Ohio 1379 (Palichat v. Palichat) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Palichat v. Palichat, 2019 Ohio 1379 (Ohio Ct. App. 2019).

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Opinion

[Cite as Palichat v. Palichat, 2019-Ohio-1379.]

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

ELIZABETH A. PALICHAT : : Plaintiff-Appellee : Appellate Case No. 2018-CA-42 : v. : Trial Court Case No. 2015-DR-69 : ERIC G. PALICHAT : (Domestic Relations Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 12th day of April, 2019.

MICHAEL A. HOCHWALT, Atty. Reg. No. 0017688, 500 Lincoln Park Boulevard, Suite 216, Kettering, Ohio 45429 Attorney for Plaintiff-Appellee

EDWARD F. WHIPPS, Atty. Reg. No. 0011335 and JOHN C. RUIZ-BUENO, III, Atty. Reg. No. 0087043, 495 South High Street, Suite 370, Columbus, Ohio 43215 Attorneys for Defendant-Appellant

............. -2-

HALL, J.

{¶ 1} Eric G. Palichat appeals from the trial court’s judgment entry overruling his

motion to terminate shared parenting and sustaining appellee Elizabeth A. Palichat’s

motion to modify an existing shared-parenting plan.

{¶ 2} Eric advances three assignments of error. First, he contends the trial court

erred in continuing shared parenting instead of awarding him legal custody of the parties’

children. Second, he claims the trial court erred in ordering alternating-week parenting

time. Third, he asserts that the trial court erred in “dismissing” the evaluations of two

expert witnesses and the guardian ad litem “without evaluating them.”

{¶ 3} The record reflects that Eric and Elizabeth married in 2005 and divorced in

2016.1 During the marriage, they had two children who were born in 2012 and 2014. The

agreed divorce decree included a shared-parenting plan. In April 2018, Eric moved to

terminate shared parenting and to obtain legal custody. In May 2018, Elizabeth moved to

modify the shared-parenting plan or, alternatively, for legal custody. Both parties also filed

show-cause motions alleging numerous instances of contempt for non-compliance with

the existing shared-parenting plan.

{¶ 4} The trial court held a two-day hearing on the motions in September 2018. It

heard testimony from nine witnesses. Among others, they included Eric, Elizabeth, Eric’s

new wife Kelly, psychologist Richard Bromberg, and psychologist Barbara Bergman. The

bulk of the testimony consisted of Eric and Elizabeth pursuing a laundry list of purported

contempt violations and accusing each other of being uncooperative, controlling, and

1 For purposes of clarity, we will refer to the parties by their first names. -3-

undermining efforts at shared parenting. After hearing the testimony and reviewing

various exhibits, including a guardian ad litem’s report and reports from Bromberg and

Bergman, the trial court found it not in the best interest of the children to designate Eric

or Elizabeth the legal custodian. (Doc. #124 at 3.) Instead, the trial court found it in the

children’s best interest to continue shared parenting under a modified plan. (Id.) In support

of this decision, the trial court stated:

* * * The Court is leery about designating one parent the residential

parent and legal custodian because neither parent has demonstrated an

ability to be fair and objective in decision-making. The Court finds that the

fight for control between the parents must end! As a result, the Court finds

that shared parenting continues to be in the children’s best interests, and

the parties shall continue to exercise shared parenting according to the new

Shared Parenting Plan set forth in this Entry.

(Id.)

{¶ 5} The trial court proceeded to set forth the changes it found necessary and

provided the parties with a modified plan. (Id. at 3-11.) It then explained:

The Court has determined that the Shared Parenting Plan above is

in the best interests of the children after considering the testimony of the

parties, the testimony of the witnesses (especially Drs. Bergman and

Bromberg), the GAL, and the exhibits. The Court concludes that the

opinions rendered by Drs. Bergman and Bromberg essentially cancelled

each other out as they were both equally competent but offered competing

recommendations. The Court also reviewed the report issued by the -4-

Guardian ad Litem and carefully considered his recommendations given his

expertise and familiarity with the parties and the case. However, because

the GAL was not called as a witness, he was excused from the courtroom

at the beginning of day 1 of trial and was not present to observe the

testimony and demeanor of the parties throughout the proceedings, both of

which significantly influenced the decision of the Court.

While Father attempted to portray himself as the more flexible and

reasonable of the parties, his testimony and courtroom demeanor betrayed

this image. The Court found Father’s testimony regarding Mother’s

immediate implementation of the behavior plan set by [their child’s] school

to be particularly telling. The parties were notified that [the child] was

displaying problematic behaviors at school, so the school created a

behavioral plan for [the child] to address the issues. According to the

testimony, this information was shared right before Father was to leave town

for approximately 16 days. Father complained that Mother immediately

began contacting [the child’s] doctors and the school to begin addressing

the problem, rather than waiting more than two weeks for him to return to

town to address the behavioral issues. Further, the Court observed Father

to be highly reactive to testimony he did not agree with, at times displaying

aggressive body language and constantly smirking and shaking his head to

make his feelings known.

By stark contrast, Mother maintained an even, calm demeanor

throughout the proceedings even when the testimony about Mother was -5-

very negative. When it was Mother’s turn to testify, her explanations made

more sense, were more believable, and made Father’s accusations in his

contempt seem all the more petty. Accordingly, Father’s credibility when he

testified to his flexibility and Mother’s irrationality was significantly

undermined, and Mother’s credibility was bolstered.

While the Court observed Mother to be the more reasonable and

flexible of the parties, the Court does not believe she is so reasonable and

flexible that she should be designated the residential parent. The Court still

harbors significant concerns about Mother’s attempts to undermine Father

and provoke him. For this reason, the Court believes the parties should

continue to share control of the children while maintaining as little contact

as possible.

(Id. at 11-12.)

{¶ 6} After providing the foregoing explanation for its shared-parenting decision,

the trial court declined to find either party in contempt for numerous, relatively petty

alleged violations of the prior shared-parenting plan. The trial court opined that “the terms

of the Plan were impossible to follow, and it would be unjust and inequitable to find either

party in contempt for violating the same.” (Id. at 14.) This appeal by Eric followed.

{¶ 7} In his first assignment of error, Eric claims the trial court erred in continuing

shared parenting rather than awarding him legal custody of the parties’ children. He first

argues that Ohio law does not authorize a trial court “to create its own shared parenting

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