[Cite as Riddle v. Riddle, 2019-Ohio-4405.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
NATHAN RIDDLE, CASE NO. 9-19-08 PLAINTIFF-APPELLEE,
v.
NICOLE RIDDLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Family Division Trial Court No. 18-DR-0027
Judgment Affirmed in Part, Reversed in Part, Cause Remanded.
Date of Decision: October 28, 2019
APPEARANCES:
Joel M. Spitzer for Appellant
Todd A. Anderson for Appellee Case No. 9-19-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Nicole Riddle (“Nicole”) appeals the judgment
of the Family Division of the Marion County Court of Common Pleas, raising
various challenges to the shared parenting plan ordered by the trial court. For the
reasons set forth below, the judgment of the trial court is affirmed in part and
reversed in part.
Facts and Procedural History
{¶2} Nicole and Nathan Riddle (“Nathan”) were married on October 19,
2005. Tr. 5. Nicole and Nathan lived in Marion County for the first four years of
their marriage. Tr. 7. They left Marion County to live in Delaware County and then
Crawford County before returning to Marion County in 2010. Tr. 7. They both
lived in Marion County continuously until after Nathan and Nicole separated in
2017. Tr. 8. During this time, Nathan operated a barbershop in Marion County,
and Nicole, who worked in the mental health field, operated a practice in Marion
County. Tr. 10-11.
{¶3} In between 2010 and 2017, four children were born as the issue of this
marriage. Tr. 5. Doc. 53. In between 2016 and 2017, Nathan and Nicole’s oldest
two children began attending Marion City Schools. Tr. 13. In October of 2017,
Nicole removed her children from the school system because she felt that God had
called her to homeschool them. Tr. 13, 15. Nicole testified that she and Nathan
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agreed on this decision. Tr. 307. Nathan, however, testified that she made this
decision without his agreement. Tr. 149.
{¶4} On December 31, 2017, Nathan and Nicole separated. Tr. 91. Nathan
had already paid for the rent on their house in Marion County for January. Tr. 153.
On January 5, 2018, Nicole moved to her mother’s house in Crawford County and
took the four children with her. Tr. 4. Nathan remained in Marion County. Nathan
and Nicole worked out an arrangement in which Nathan had the children with him
on Tuesday nights, Thursday nights, and weekends. Tr. 27. Nicole testified that
she attempted to reconcile with Nathan and that she believed that he was a good
father to his children. Tr. 17-18.
{¶5} On February 12, 2018, Nathan filed for a divorce. Doc. 1. At this
time, all four of Nathan and Nicole’s children were minors. Doc. 1. After February
12, 2018, Nicole stopped allowing Nathan visitation with the children at his
apartment as had been practiced under their prior arrangement. Tr. 31. She only
allowed him to see the children under her supervision at her mother’s house in
Crawford County. Tr. 31. Nicole testified that these actions were not in response
to Nathan filing for a divorce. Tr. 30.
{¶6} In February of 2018, Nicole stopped homeschooling and enrolled her
children into a public school system in Crawford County. Tr. 13, 35, 294. She
enrolled the children in the school system the day after she consulted with her
divorce attorney. Tr. 35. As a child, Nicole had been enrolled in this same school
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system. Tr. 167. Nathan testified that Nicole had “hated” her experience there and
that he did not want his children in that school district. Tr. 167. He also testified
that Nicole did not consult with him before she enrolled the children in the local
school system in Crawford County. Tr. 167.
{¶7} On September 10, 2018, Nathan filed a proposed shared parenting
plan with the trial court. Doc. 38. On October 3, 2018, the trial court held the final
hearing in this divorce proceeding. Tr. 50. After hearing the testimony of Nathan
and Nicole, the trial court issued a shared parenting order on January 4, 2019. Doc.
53. Nicole filed her notice of appeal on January 28, 2019. Doc. 60. On appeal, she
raises the following assignments of error:
First Assignment of Error
The trial court erred and abused its discretion in not making a specific finding that its allocation of parental rights and responsibilities were in the best interest of the minor children and in not making a specific finding that the adopted shared parenting plan was in the best interest of the minor children pursuant to Rev. C. 3109.04(B)(1).
Second Assignment of Error
The trial court erred and abused its discretion in adopting the plaintiff’s September 10, 2018 proposed shared parenting plan without a formal motion from the parties and erred and abused its discretion in adopting plaintiff’s December 14, 2018 ‘post- trial’ proposed shared parenting plan without a formal motion from the parties pursuant to Rev. C. 3109.04(D)(1)(a).
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Third Assignment of Error
The trial court erred and abused its discretion in not only adopting the proposed shared parenting plan but also not considering the relevant factors in Rev. C. 3109.04(F)(2).
Fourth Assignment of Error
The trial court erred and abused discretion in adopting the plaintiff’s September 10, 2018 proposed shared parenting plan because the September 10, 2018 proposed shared parenting plan was not submitted at a time less than 30 days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children pursuant to Rev. C. 3109.04(G) and the trial court erred and abused its discretion in adopting the plaintiff’s December 14, 2018 ‘post-trial’ proposed shared parenting plan because the December 14, 2018 ‘post-trial’ shared parenting plan was not submitted at a time less than 30 days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children and submitted after the evidentiary hearing on the issue of the parental rights and responsibilities for the care of the children pursuant to 3109.04(G).
Fifth Assignment of Error
The trial court erred and abused its discretion in allocating all four of the minor children’s tax exemptions to the plaintiff.
Sixth Assignment of Error
In support of the initial determination of parental rights and responsibilities for the minor child and pursuant of Ohio Revised Code 3109.04, the trial court erred against the weight of the evidence and abused its discretion in determining that the plaintiff-appellee should be granted custody.
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Seventh Assignment of Error
The trial court erred and abused is discretion by not making a finding that the advantages of ordering the children back to Marion County outweighed the disadvantages.
For the sake of analytical clarity, we will consider the second assignment of error
prior to analyzing the other assignments of error.
{¶8} Nicole argues that the trial court erred by compelling the parties to
submit shared parenting proposals in the absence of a motion from one of the parties
that requests shared parenting.
Legal Standard
R.C. 3109.04(D)(1)(a) reads, in its relevant part, as follows:
Upon the filing of a pleading or motion by either parent or both parents, in accordance with division (G) of this section, requesting shared parenting and the filing of a shared parenting plan in accordance with that division, the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this section * * *.
(Emphasis added.) R.C. 3109.04(D)(1)(a).
Legal Analysis
{¶9} The express language of R.C. 3109.04(D)(1)(a) allows for a party to
request shared parenting in a “pleading or motion.” R.C. 3109.04(D)(1)(a). On
September 10, 2018, Nathan filed a proposed shared parenting plan. Doc. 38. The
opening lines of this document read, in its relevant part, as follows:
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Now comes the Plaintiff, Nathan Riddle, by and through Counsel, and offers the following Proposed Shared Parenting Plan to the Court for review and approval. The Plaintiff hereby requests this Court to adopt this proposed shared parenting plan as an Order of the Court.
Doc. 38. Thus, Nathan, one of the parties to this action, expressly requested shared
parenting in a filing with the trial court. Nicole alleges that the trial court, at a status
conference on December 14, 2018, ordered each of the parties to submit proposed
shared parenting plans. Appellant’s Brief, 10. This order was after Nathan
requested shared parenting on September 10, 2018. Since Nathan requested a
shared parenting plan in compliance with R.C. 3109.04(D)(1)(a), Nicole’s second
assignment of error is overruled.
{¶10} Nicole argues that the trial court failed to make an express finding that
the allocation of parental rights was in the best interest of the children.
{¶11} Because the appellant’s first and third assignments of error are similar
in nature, we will set forth one legal standard here to govern both of these alleged
errors. R.C. 3109.04(B)(1) governs the process of allocating parental rights and
responsibilities, reading, in its relevant part, as follows:
When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children.
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(Emphasis added.) R.C. 3109.04(B)(1).
{¶12} In determining whether a shared parenting plan is in the best interest
of the children, R.C. 3109.04(F)(2) provides a list of non-exclusive factors that a
trial court is to consider and then directs a trial court to also “consider all relevant
factors, including, but not limited to, the factors enumerated in division (F)(1) of
this section.” R.C. 3109.04(F)(2). R.C. 3109.04(F)(1) similarly contains a list of
non-exclusive factors that a trial court is to consider in the process of “determining
the best interest of a child” under R.C. 3109.04. R.C. 3109.04(F)(1).
{¶13} Further, “[p]ursuant to Civ.R. 52, a trial court may enter general
judgment for the prevailing party.” Siefker v. Siefker, 3d Dist. Putnam No. 12-06-
04, 2006-Ohio-5154, ¶ 6. However, if “one of the parties in writing requests
otherwise * * *, the court shall state in writing the findings of fact found separately
from the conclusions of law.” Civ.R. 52. This provision of Civ.R. 52 exists “to aid
the appellate court in reviewing the record and determining the validity of the basis
of the trial court’s judgment.” Werden v. Crawford, 70 Ohio St.2d 122, 124, 435
N.E.2d 424 (1982).
{¶14} If a party to the action did not “request findings of fact and
conclusions of law under Civ.R. 52,” then the appellate court is to “presume the
regularity of the proceedings at the trial level.” Siefker at ¶ 6, quoting Bunten v.
Bunten, 126 Ohio App.3d 443, 447, 710 N.E.2d 757 (3d Dist. 1998). In other words,
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“the reviewing court must presume that the trial court applied the law correctly * *
*.” Ratliff v. Ohio Dept. of Rehab. & Corr., 133 Ohio App.3d 304, 311-312, 727
N.E.2d 960 (10th Dist. 1999). Thus, “[a]s long as the trial court’s judgment is
supported by some competent and credible evidence, we must affirm.” Id.
{¶15} We begin our analysis by noting that Nicole did not request findings
of fact and conclusions of law from the trial court pursuant to Civ.R. 52. Without
this Civ.R. 52 motion, the trial court was permitted to enter a “general [judgment]
for the prevailing party.” Civ.R. 52. Wirt v. Wirt, 9th Dist. Wayne No. 95CA0041,
1996 WL 170362, *2 (Apr. 10, 1996) (holding that, in the absence of a Civ.R. 52
motion, a general judgment was sufficient where “the trial court analyzed evidence
* * *, which contains sufficient competent evidence to find that * * * a custody
modification was in the best interests of the children.”).
{¶16} Even if Nicole had filed a Civ.R. 52 motion, the wording of R.C.
3109.04(B)(1) does not require the trial court to make an express finding that the
allocation of parental rights and responsibilities is in the children’s best interest.
Rather, R.C. 3109.04(B)(1) requires a trial to “take into account” what “would be
in the best interest of the children.” R.C. 3109.04(B)(1). R.C. 3109.04(F)(1)
provides a non-exclusive list of factors that a trial court is to consider in the process
of determining what is in the children’s best interest. R.C. 3109.04(F)(1).
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{¶17} In its judgment entry, the trial court analyzed the facts of this case
under all of the factors listed in R.C. 3109.04(F)(1) in compliance with the statute.
Doc. 53. By considering each of these factors, the trial court “t[ook] into account”
what “would be in the best interest of the children” and did what was required under
R.C. 3109.04(B)(1). R.C. 3109.04(F)(1). Erwin v. Erwin, 3d Dist. Union No. 14-
05-45, 2006-Ohio-2661, ¶ (holding that under R.C. 3109.04(B)(1), appellate courts
“must examine the record to determine (1) that the trial court considered all of the
necessary factors listed in R.C. 3109.04(F) and (2) that there is competent, credible
evidence supporting the trial court's conclusion * * *.”). After reviewing the
evidence in the record, we do not find any reason to dispense with the applicable
presumption of regularity in the proceedings below. For these reasons, Nicole’s
first assignment of error is overruled.
{¶18} Nicole argues that the trial court, in adopting the contested shared
parenting plan, failed to consider the relevant factors listed in R.C. 3109.04(F)(2).
{¶19} We herein reincorporate the legal standard set forth under the first
assignment of error.
{¶20} We begin our analysis by noting that Nicole did not request findings
of fact or conclusions of law from the trial court pursuant to Civ.R. 52. In a divorce
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proceeding, “if the trial court failed to fully analyze the R.C. 3109.04(F)(2) best
interest factors, in the absence of a Civ.R. 52 request[,] it was not required to do so.”
Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, ¶ 54. Since
Nicole did not request findings of fact and conclusions of law, we will examine the
record to determine whether the judgment of the trial court is supported by some
competent, credible evidence. In the absence of evidence to the contrary, we will
“presume the regularity of the trial court proceedings and presume that the trial court
properly applied the law to the facts of the case.” Id.
{¶21} In this case, the record indicates that the trial court’s decision to order
a shared parenting plan was supported by some competent, credible evidence. The
evidence in the record indicates that Nathan and Nicole were able to have a
functional visitation arrangement for a time before Nathan filed for a divorce. Tr.
26. R.C. 3109.04(F)(2)(a). However, at other junctures, Nicole and Nathan did not
cooperate regarding his visitation and did not agree on matters, such as the
children’s schooling. Tr. 149, 164. At the hearing, Nathan testified that he and
Nicole did not always act in a civil manner towards each other and admitted that
there was a “high level of conflict” between him and Nicole. Tr. 194, 215. He also
admitted that he knew a high level of conflict could make shared parenting difficult,
but he stated that he wanted shared parenting because he wanted more input in the
process of making decisions for the children. Tr. 194-195, 215.
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{¶22} Nicole testified that Nathan was a good father, though she also
accused him of drinking too much and claimed he had abandoned her family at other
points during the divorce hearing. Tr. 16, 17-18, 41, 49. R.C. 3109.04(F)(2)(b).
Tr. 17-18. Nicole also restricted Nathan’s visitation after he filed for a divorce.
R.C. 3109.04(F)(2)(b). Nathan denied drinking too much and denied leaving Nicole
“destitute.” R.C. 3109.04(F)(2)(b). Tr. 214, 245. At trial, there was no evidence
of a “history of, or potential for child abuse, spouse abuse, other domestic violence,
or parental kidnapping by either parent.” R.C. 3109.04(F)(2)(c). In terms of
geographic proximity, the testimony at trial indicated that both parents worked in
Marion County; that Nathan lived in Marion County; that Nicole lived in
neighboring Crawford County; and that the children had roots in Marion County.
R.C. 3109.04(F)(2)(d). There was no guardian ad litem in this case. R.C.
3109.04(F)(2)(e).
{¶23} Further, R.C. 3109.04(F)(2) also directs the trial court to consider “all
relevant factors, including, but not limited to, the factors enumerated in division
(F)(1) of this section * * *.” As we have already noted, the trial court applied all of
the R.C. 3109.04(F)(1) factors to this case, making express findings in its judgment
entry for each of the listed factors in that section. Doc. 53. After reviewing the
evidence in the record, we do not find any evidence that would lead us to dispense
with the presumption of regularity in the proceedings below. For these reasons, we
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find that the trial court did not render a decision that was unsupported by competent,
credible evidence. Thus, Nicole’s third assignment of error is overruled.
{¶24} Nicole argues that Nathan did not comply with R.C. 3109.04(G) as he
filed his proposed shared parenting plan less than thirty days before the final
hearing.1
{¶25} “R.C. 3109.04(G) governs the time limitations to file a shared
parenting plan with the trial court * * *.” Clouse v. Clouse, 3d Dist. Seneca No. 13-
08-40, 2009-Ohio-1301, ¶ 34. This provision reads, in its relevant part, as follows:
The plan for shared parenting shall be filed with the petition for dissolution of marriage, if the question of parental rights and responsibilities for the care of the children arises out of an action for dissolution of marriage, or, in other cases, at a time at least thirty days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children.
R.C. 3109.04(G).
{¶26} “[T]he requirement in R.C. 3109.04(G) that a shared parenting plan
must be filed at least thirty days prior to the hearing on parental rights and
1 The exact wording of Nicole’s assignment of error is “[t]he trial court erred and abused its discretion in adopting the plaintiff’s September 10, 2018 proposed shared parenting plan because the * * * plan was not submitted at a time less than 30 days prior to the hearing.” (Emphasis added.) Appellant’s Brief, 11. R.C. However, 3109.04(G) directs parents to file shared parenting plans “at a time at least thirty days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children * * *. R.C. 3109.04(G). Thus, the exact wording of Nicole’s assignment of error alleges that Nathan complied with R.C. 3109.04(G). Based on the body of her argument, however, we assume that she intended to state that “plan was * * * submitted at a time less than 30 days prior to the hearing.” (Emphasis added.) Appellant’s Brief, 11. We will evaluate this assignment of error accordingly.
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responsibilities is directory, not mandatory.” Gould v. Gould, 9th Dist. Summit No.
28410, 2017-Ohio-7047, ¶ 6, quoting Harris v. Harris, 105 Ohio App.3d 671, 674,
664 N.E.2d 1304, 1306 (2d Dist. 1995).
Instead of creating an inflexible rule requiring all plans to be submitted 30 days before trial, a judge has discretion to grant leave to file an untimely plan, as long as due process rights are protected by allowing the opposing party adequate opportunity to address the issue and present relevant evidence at trial.
In re Minnick, 12th Dist. Madison No. CA2003-01-001, 2003-Ohio-4245, ¶ 12.
{¶27} Nathan filed a proposed shared parenting plan with the trial court on
September 10, 2018. Doc. 38. Since the hearing on the matter of parental rights
was held on October 3, 2018, Nathan’s proposed shared parenting plan was not
timely filed with the trial court “at least thirty days prior to the hearing on the issue
of the parental rights and responsibilities for the care of the children.” R.C.
3109.04(G). See Tr. 1. However, Nicole did not raise this issue before the trial
court. “[I]n civil as well as criminal cases, [the] failure to timely advise a trial court
of possible error, by objection or otherwise, results in a waiver of the issue for
purposes of appeal.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d
1099, 1103 (1997). Thus, this matter was not properly preserved for consideration
on appeal and cannot now be raised “for the first time * * *.” Glendall-Grant v.
Grant, 8th Dist. Cuyahoga No. 105895, 2018-Ohio-1094, ¶ 10 (addressing the
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“untimely filing of [a] shared parenting plan” after the appellant failed to object
before the trial court).
{¶28} Even if Nicole had objected before the trial court, this argument would
still not provide grounds for reversing the trial court’s decision. Appellate courts
across this state have held “that the requirement in R.C. 3109.04(G) that a shared
parenting plan must be filed at least thirty days prior to the hearing on parental rights
and responsibilities is directory, not mandatory.” Harris, supra, at 674. See also
Siegel v. Siegel, 1st Dist. Hamilton No. C-140296, 2015-Ohio-1710, ¶ 9-10; Swain
v. Swain, 4th Dist. No. 04CA726, 2005-Ohio-65, ¶ 13; Hampton-Jones v. Jones, 8th
Dist. Nos. 77279, 77412, 2001 WL 902785, *4 (Aug. 9, 2001). The fact that Nathan
filed within the thirty-day limit does not bar his proposal from consideration. Id.
Further, the record indicates that Nicole did have an opportunity to respond. Nicole
was aware of Nathan’s request; had twenty-three days to respond to this proposed
shared parenting plan before the hearing; and had an opportunity to present evidence
at the hearing on October 3, 2018.
{¶29} Nicole similarly challenges Nathan’s post-hearing shared parenting
proposal as failing to comply with R.C. 3109.04(G). Doc. 51. Prior to the divorce
hearing, Nicole filed a trial brief in which she requested custody of the children.
Doc. 47. At the hearing, Nicole testified that she did not want to have a shared
parenting plan and had an opportunity to voice her opposition to shared parenting.
Tr. 313. Nathan, having requested and proposed a shared parenting plan, testified
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that he wanted such an arrangement. Tr. 194, 281. The trial court apparently
determined that a shared parenting plan was in the best interest of the children and,
at a subsequent status conference, ordered Nicole and Nathan to file proposed shared
parenting plans. Appellant’s Brief, 10. Appellee’s Brief, 17.
{¶30} On December 14, 2018, Nathan filed his proposed shared parenting
plan. Doc. 51. However, Nicole never filed a proposed shared parenting plan.
Thus, the trial court gave Nicole the opportunity to file an alternative shared
parenting plan, but she refused this offer. We see no indication in the record that
the trial court abused its discretion in this matter. See Clouse, supra, ¶ 41 (holding
“that the trial court did not abuse its discretion under R.C. 3109.04(G) in granting
[appellee] leave to file a shared parenting plan after the final divorce hearing * *
*.”).
{¶31} In this case, Nicole was aware that Nathan was seeking shared
parenting; had adequate time to respond to his proposed shared parenting plan; had
the opportunity to argue against shared parenting at the divorce hearing; and was
given the opportunity to file her own shared parenting plan. See Clouse, supra, at ¶
41. After examining the evidence in the record, we do not find any indication that
the trial court abused its discretion in allowing Nathan’s proposed shared parenting
plan to be submitted within thirty days of the hearing. We also do not find any
indication that the trial court abused its discretion in allowing both parties to have
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the opportunity to file a revised shared parenting plan after the status conference.
For these reasons, Nicole’s fourth assignment of error is overruled.
{¶32} Nicole argues that the trial court erred in awarding all four of the tax
exemptions for the children to Nathan.
{¶33} R.C. 3119.82 governs the process of designating the parent who may
claim dependent children for federal income tax purposes and reads, in its relevant
part, as follows:
[W]henever a court issues * * * a court child support order * * *, the court shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes * * *. * * * If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children * * *. In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
R.C. 3119.82. “Under the plain language of the statute, a trial court is not required
to state on the record its reasons for awarding tax dependency exemptions.” Clark
v. Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 35. “However, ‘[w]hile
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the trial court does not need to state a basis for allocating the exemption, the record
does need to include financial data in relation to the above factors to support the
trial court’s decision.’” Id. at ¶ 35, quoting Ankney v. Bonos, 9th Dist. Summit No.
23178, 2006-Ohio-6009, ¶ 40, rev’d on other grounds.
{¶34} In this case, the trial court determined that “[t]he father shall be
entitled to claim the minor children on all of his local, state, and federal income
taxes for the tax year 2018 and each year thereafter.” Doc. 53. The trial court did
not make the express findings as to why it reached this determination. Doc. 53.
While the trial court was not required to make express findings to support its
decision, the evidence in the record still needs to support its decision. We turn now
to determining whether the record supports the trial court’s decision in this matter.
{¶35} We begin our analysis by noting that neither party asked for this
particular arrangement. Nathan requested that he and Nicole each claim two
children every year on their taxes. Tr. 212. Nicole, on the other hand, requested
that she and Nathan alternate claiming all four children every other year. Tr. 90.
Since the parties did not agree, the trial court was required to consider
any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
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R.C. 3119.82. The record indicates that Nicole’s annual income is $21,745.00 and
that Nathan’s annual income is between $45,000.00 and $50,000.00. Doc. 53.
Thus, Nathan makes more than double Nicole’s annual income. Nathan was ordered
to pay $936.38 in child support each month but was not required to make any
spousal support payments. Doc. 53.
{¶36} Under the shared parenting plan, the children will spend the same
amount of time with each parent. Doc. 53. Nevertheless, considering that Nicole is
the only parent eligible for the earned income tax credit, claiming all of the children
on Nathan’s taxes would be less beneficial to the children financially. See
Montgomery v. Montgomery, 6th Dist. Huron No. H-06-035, 2007-Ohio-2539, ¶ 28.
Further, at the time of this divorce, Nathan and Nicole owed the Internal Revenue
Service $29,308.07 in back taxes. Tr. 93. The trial court found that this sum was a
marital debt. Doc. 53.
{¶37} On appeal, Nathan argues that the trial court’s decision should remain
undisturbed because Nicole failed to request findings of fact and conclusions of law
pursuant to Civ.R. 52. This means that the trial court could enter a general judgment
and was not required to state the findings that supported this determination
expressly. However, regardless of whether a party files a Civ.R. 52 request, the
evidence in the record must still support the trial court’s decision. After considering
the relevant financial information in the record, we cannot discern the rationale for
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designating Nathan alone as the parent who may claim all four children every year
for tax purposes. The trial court must either clarify the rationale behind this decision
or modify its order as to this issue. Nicole’s fifth assignment of error is sustained.
{¶38} Nicole argues that the trial court made a determination that was
against the manifest weight of the evidence by giving Nathan custody of the
children.
{¶39} “When making a determination regarding parental rights, the
domestic relations court must follow statutory guidelines.” King v. King, 3d Dist.
Union No. 14-11-23, 2012-Ohio-1586, ¶ 8. R.C. 3109.04(L) reads, in its relevant
(5) Unless the context clearly requires otherwise, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, both parents have “custody of the child” or “care, custody, and control of the child” under the order, to the extent and in the manner specified in the order.
(6) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(7) Unless the context clearly requires otherwise and except as otherwise provided in the order, a designation in the order of a
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parent as the residential parent for the purpose of determining the school the child attends * * * does not affect the designation pursuant to division (L)(6) of this section of each parent as the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(Emphasis added.) R.C. 3109.04(L)(5-7).
{¶40} Appellate courts “review[] a domestic relations court’s decision
regarding parental rights for an abuse of discretion.” King at ¶ 9. “Under the abuse
of discretion standard, an appellate court is not to substitute its judgment for the trial
court’s judgment.” Mousa v. Saad, 3d Dist. Marion No. 9-18-12, 2019-Ohio-742,
¶ 29, citing Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.).
Thus, a mere error of judgment does not rise to the level of an abuse of discretion.
Siferd v. Siferd, 2017-Ohio-8624, 100 N.E.3d 915, ¶ 16 (3d Dist.). “[T]o constitute
an abuse of discretion, the trial court’s decision must be unreasonable, arbitrary, or
capricious.” Southern v. Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-1440, ¶
10.
{¶41} In its judgment entry, the trial court ordered a shared parenting
arrangement. Doc. 53. Under a shared parenting plan, “both parents have “custody
of the child[ren] * * *.” R.C. 3109.04(L)(5). The trial court’s order does not alter
the arrangement set forth in R.C. 3109.04(L)(5). Doc. 53. In the shared parenting
plan, the trial court “ORDERED that the parties shall share the parental rights and
responsibilities pursuant to the shared parenting plan attached hereto and
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incorporated herein.” Doc. 53. The trial court further stated that “[b]oth parties
shall be designated the custodial and residential parent for the minor children during
his/her individual parenting time period with the minor children.” Doc. 53. Thus,
contrary to the assertion in this assignment of error, the trial court did not award
custody of the children to Nathan. Doc. 53.
{¶42} While Nicole, in her assignment of error, argues against the trial
court’s award of custody to Nathan, she seems to be arguing against the trial court’s
decision to name Nathan the residential parent for school placement purposes. R.C.
3109.04(L)(7) gives the trial court the authority to designate one of the parents as
the residential parent for the purposes of school placement. R.C. 3109.04(L)(7).
Doc. 53. The trial court acted pursuant to this provision in naming Nathan as the
residential parent for school placement purposes. Doc. 53. For this reason, we will
examine whether the trial court abused its discretion in making this determination.
{¶43} In this case, Nicole and Nathan disagreed strongly on the issue of
school placement. Prior to their separation, Nicole took the children out of Marion
City Schools because she believed that God had called her to homeschool them. Tr.
13, 150. At trial, Nathan testified that Nicole did this without his approval. Tr. 150.
Nicole then left Marion County with her children, moving to her mother’s house in
Crawford County in January of 2018. Tr. 239. Nathan testified that Nicole moved
with the children without notifying him prior to leaving. Tr. 154. After moving,
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Nicole placed the children into a public school in Crawford County without
consulting Nathan. Tr. 165. See Doc. 53, citing R.C. 3109.04(F)(1)(f).
{¶44} At the time of trial, Nathan still lived in Marion County and requested
to be named the residential parent for school placement purposes. Doc. 53. He
wanted to place the children back into Marion City Schools where they had been
enrolled prior to being homeschooled by Nicole in between October of 2017 and
February of 2018. Tr. 13, 294. Doc. 53, citing R.C. 3109.04(F)(1)(a). Nicole
testified that she and Nathan moved back to Marion County in 2010 after having
lived outside of Marion County for roughly one year. Tr. 7. She also testified that
she and the children had lived continuously in Marion County until she moved in
January of 2018. Tr. 4, 8. Since her oldest child had been born in 2010, Nicole
admitted that the children had spent almost all of their lives in Marion County. Tr.
5, 8.
{¶45} At trial, Nathan and Nicole both testified that the children had
connections to the community in Marion County. Tr. 73, 202. See R.C.
3109.04(F)(1)(d). Further, Nicole, who works in the mental health field, opened a
practice in Marion County in 2016. Tr. 9. At trial, she testified that she still worked
in Marion County even though she lived in Crawford County. Tr. 9-10. Similarly,
Nathan still operates his business in Marion County. Tr. 11, 146.
{¶46} Based on the evidence produced at trial, the trial court found that “[i]t
is unknown if the children are adjusting to their new school or involved in activities
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in Crawford County[.]” Doc. 53, citing R.C. 3109.04(F)(1)(d). The trial court
further found that the children had “resided in Marion County for seven years”; that
the children “were acclimated to their home, community, church, and school” in
Marion County; and that Nicole “abruptly moved herself and her children to
Crawford County * * *.” Doc. 53, citing R.C. 3109.04(F)(1)(d). The trial court
also found that “[i]t [was] difficult to know the emotional impact of the abrupt
removal of the children from their home, and school.” Doc. 53, citing R.C.
3109.04(F)(1)(e).
{¶47} The evidence produced at trial indicates that Marion City Schools is a
place where the children have previously attended school; is located in the same city
as the workplaces of both Nicole and Nathan; and is situated in a community in
which the children have roots. After reviewing the evidence in the record, we
conclude that the trial court did not abuse its discretion in naming Nathan the
residential parent for school placement purposes. Thus, Nicole’s sixth assignment
of error is overruled.
{¶48} The appellant asserts that the trial court abused its discretion by failing
to make a finding that the advantages of requiring the children to move back to
Marion County outweighed the disadvantages of such a move.
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{¶49} “[A] defendant has the burden of affirmatively demonstrating the
error of the trial court on appeal.” State v. Gideon, 2019-Ohio-2482, 130 N.E.3d
357, ¶ 14 (3d Dist.), quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-
Ohio-6912, ¶ 7. Thus, under App.R. 12(A)(2), an appellate court
may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).
App.R. 12(A)(2). Under App.R. 16(A), the appellant’s brief must include
[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.
App.R. 16(A). In the absence of a legal argument, “[i]t is not the duty of an appellate
court to search the record for evidence to support an appellant’s argument as to any
alleged error.” In re Adoption of C.N.A., 2018-Ohio-897, 108 N.E.3d 553, ¶ 10 (3d
Dist.), quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001, 1996 WL
174609, *14 (Apr. 15, 1996).
{¶50} Nicole lists a seventh assignment of error in her brief but does not
provide a supporting legal argument. The appellant also did not include any
citations to legal authorities or references to materials in the record. Since Nicole
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did not raise this issue in a manner that comports with the Ohio Rules of Appellate
Procedure, her seventh assignment of error is overruled.
Conclusion
{¶51} Having found no error prejudicial to the appellant in the particulars
assigned and argued in the first, second, third, fourth, and sixth assignments of error,
the judgment of the Family Division of the Marion County Court of Common Pleas
is affirmed as to these issues. Having found no error prejudicial to the appellant in
the particulars assigned but not argued in the seventh assignment of error, the
judgment of the Family Division of the Marion County Court of Common Pleas is
affirmed as to this issue. Having found error prejudicial to the appellant in the
particulars assigned and argued in the fifth assignment of error, the judgment of the
Family Division of the Marion County Court of Common Pleas is reversed as to this
issue. This cause is remanded to the trial court for further proceedings consistent
with this opinion.
Judgment Affirmed in Part Reversed in Part And Cause Remanded
ZIMMERMAN, P.J. and PRESTON, J., concur.
/hls
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