Quint v. Lomakoski

854 N.E.2d 225, 167 Ohio App. 3d 124, 2006 Ohio 3041
CourtOhio Court of Appeals
DecidedJune 16, 2006
DocketNo. 2005 CA 111.
StatusPublished
Cited by17 cases

This text of 854 N.E.2d 225 (Quint v. Lomakoski) 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
Quint v. Lomakoski, 854 N.E.2d 225, 167 Ohio App. 3d 124, 2006 Ohio 3041 (Ohio Ct. App. 2006).

Opinion

Donovan, Judge.

{¶ 1} This matter is before the court on the notice of appeal of Deborah Pelligrini, filed September 30, 2005. Pelligrini appeals the September 14, 2005 trial court decision, issued following remand, modifying the visitation of David Lomakoski, Pelligrini’s ex-husband, with the parties’ minor son. The parties were married in 1995, and they were divorced in 2001 in Michigan. Their divorce decree provided for joint custody of their son. The parties later moved to Greene County, Ohio, where they registered their divorce decree. In September 2003, they executed a “Parenting Plan and Parenting Time Schedule,” in which they agreed that Pelligrini would be the residential and custodial parent of their son, and that Lomakoski would have parenting time that included overnight visitation on Tuesdays, dinner on Wednesdays, and every other Friday through Monday morning.

2} In June of 2004, Pelligrini filed a notice of intent to relocate to North Carolina, along with a motion to modify visitation. At the time, Pelligrini was engaged to Nick Pelligrini, who had accepted a job offer in Raleigh, North Carolina, as a computer-systems-integration analyst. Pelligrini, an anesthesiologist, also found employment in Raleigh. Pelligrini and her fiancé were married in November 2004.

{¶ 3} Lomakoski opposed the motion to modify his visitation. After a hearing on December 6, 2004, and January 28, 2005, the trial court overruled Pelligrini’s motion on March 23, 2005. The trial court’s decision was based in part upon the report of Tyrone Payne, a psychologist who evaluated the child, and was also based in part upon the report of the child’s guardian ad litem. The child suffers from Tourette’s syndrome. After noting the child’s “possibly deficient skills in adaptability,” Dr. Payne concluded that “moving to North Carolina is not in [the child’s] bests interests. Specifically, moving away from his father would be the major negative factor affecting his adjustment.” The guardian ad litem recommended that Lomakoski’s parenting time not be modified. He acknowledged that there may be significant benefits in relocating to North Carolina, benefits which “could override the Guardian’s belief that [the child’s] best interests require no change in his parenting time with [Lomakoski], if, but only if, [Lomakoski] were to receive significant blocks of parenting time with [the child], including [the child’s] entire summer vacation, every spring break, two weeks during the Christmas season, and all holiday weekends which are extended by virtue of a *127 Friday or Monday holiday, every Thanksgiving, etc. Still further, [Pelligrini] would need to pay [the child’s] transportation costs, as the relocating party.” The guardian noted that he was simply appointed to determine whether a modification of Lomakoski’s parenting time was in the child’s best interest, and that his recommendation against modification “will require other litigation, perhaps with respect to custody.” The trial court concluded that the child and his father “have made a life in the Greene County area and should not have it disrupted.”

{¶ 4} Pelligrini appealed the trial court’s decision. We concluded that the trial court abused its discretion: “[T]he trial court improperly determined that the child should not be relocated, when it should have limited its inquiry to whether visitation should be effectuated in a different manner.” We reversed the trial court’s decision, and we remanded the matter for further proceedings.

{¶ 5} The trial court then modified Lomakoski’s visitation, without further hearing, consistent with the guardian ad litem’s recommendation. Specifically, the trial court awarded Lomakoski parenting time “at least one three or four day weekend per month” coinciding with the national holidays; December parenting time consistent with the standard order of parenting time; parenting time during the child’s spring breaks each year; parenting time during the second weekend in March; summer parenting time beginning on the day after the last day of school until the Sunday which falls not less than one week before school resumes in the fall; and parenting time for up to a full weekend any time he can travel to the area where the child resides. With the exception of Lomakoski’s travel to North Carolina, “all travel arrangements and costs will be the responsibility of the Mother. She is in a superior financial position and the modification of the parenting time schedule is due to her voluntary actions.”

{¶ 6} The procedural history of this matter is not limited to Pelligrini’s first and instant appeals. Lomakoski filed a motion for contempt on March 9, 2005, based on Pelligrini’s failure to notify the court of her relocation and her failure to provide Lomakoski with parenting time. On April 4, 2005, Lomakoski filed a motion to reallocate parental rights and a request for reappointment of a guardian ad litem. On April 26, Lomakoski filed a motion for contempt and a motion for emergency judicial review of his motion, and Pelligrini filed a response on May 5, 2005. On August 23, 2005, Lomakoski filed a motion for contempt and a motion for interim parenting orders, based upon Pelligrini’s failure to comply with the trial court’s decision of March 23, 2005. On August 25, 2005, the trial court entered a decision and order granting interim ex parte custody to movant, in which the court ordered Pelligrini to “return the child to the State of Ohio and into the care of the Movant J. David Lomakoski on or before 6:00 o’clock p.m. on the 1st day of September.” The court also reappointed the guardian ad litem. *128 On August 26, 2005, Pelligrini filed a motion to dismiss Lomakoski’s motion for contempt and motion for interim parenting orders “for the reason that Mr. Lomakoski has a case pending in the United States Bankruptcy Court and the automatic stay is in effect.” The trial court issued an order providing that all pending motions before it would be decided on December 8, 2005. The resolution of these additional matters is not currently before us.

{¶ 7} Pelligrini asserts four assignments of error, and we note that Lomakoski responds to only two of them in his brief. Pelligrini’s assignments of error will be addressed together, and they are as follows:

{¶ 8} “The trial court did not comply with R.C. 3109.051 in issuing the modified visitation order of September 14, 2005.”

{¶ 9} “The trial court’s visitation order is contrary to the child’s best interest.”

{¶ 10} “The trial court erred in issuing the modified visitation order without further evidentiary proceeding.”

{¶ 11} “The trial court erred in assessing to appellant all travel arrangements and costs as a penalty for remarrying and relocating to another state to live with her spouse.”

{¶ 12} “ ‘[W]hen a parent seeks to modify a previous visitation arrangement, it is that party who bears the burden of proof as to whether the prior arrangement was not in the best interests of the [child].’ Bodine v. Bodine (1988), 38 Ohio App.3d 173, 175 [528 N.E.2d 973]. We will not reverse a trial court’s decision on a motion for modification of visitation rights absent an abuse of discretion. Archer v. Archer (Sept. 24, 1997), Pickaway App. No. 96CA37 [1997 WL 600233].

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Bluebook (online)
854 N.E.2d 225, 167 Ohio App. 3d 124, 2006 Ohio 3041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quint-v-lomakoski-ohioctapp-2006.