Saylor v. Lewis

2020 Ohio 3647

• Court: Ohio Court of Appeals
• Decided: July 8, 2020
• Docket: C-190463
• Status: Published

Opinion

[Cite as Saylor v. Lewis, 2020-Ohio-3647.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DERON B. SAYLOR, : APPEAL NO. C-190463 TRIAL NO. DR-1502089 Plaintiff-Appellant, :

vs. : O P I N I O N. HOLLY SAYLOR, n.k.a. HOLLY : LEWIS,

Defendant-Appellee. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 8, 2020

Deron B. Saylor, pro se,

Blake P. Somers, L.L.C., and Blake P. Somers, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} The case before us concerns post-decree proceedings in a divorce case.

The parties filed several motions with the trial court concerning issues regarding

contempt and parental rights and responsibilities, including custody, residency, and

parenting time. The parties resolved the motions through an agreed entry. Plaintiff-

appellant Deron Saylor then filed additional motions seeking to modify parental

rights and responsibilities. The trial court limited its consideration of his motions to

events that occurred after the parties signed the agreed entry. The court then denied

Saylor’s motions and ruled in favor of defendant-appellee Holly Lewis.

{¶2} Saylor has appealed, arguing in two assignments of error that the trial

court erred: (1) in finding that the agreed entry resolved all issues pending before the

court, and that the agreed entry was the point from which he was required to

demonstrate a change of circumstances; and (2) by failing to properly weigh the

evidence as required by Ohio law and local rule. We overrule Saylor’s assignments of

error and affirm the judgment of the trial court.

Factual Background

{¶3} Holly Lewis and Deron Saylor were divorced in May 2016. They have

three children, twin boys N.S. and G.S. (born July 2003) and daughter A.S. (born

April 2006).

{¶4} The boys’ use of the internet and social media for pornographic and

sexual purposes has been an issue throughout the case. For that reason, the boys

were assigned a guardian ad litem (“GAL”) who recommended that the boys’ access

to the internet and social media be restricted. The divorce decree included a shared-

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parenting agreement, which put restrictions on the children’s usage of social media

and electronic devices. Saylor filed a motion for contempt when he suspected that

Lewis was allowing the boys to use social media and the internet for inappropriate

purposes. The parties entered an agreed entry on January 17, 2017, wherein Lewis

agreed to remove the children from all social media.

{¶5} On August 1, 2017, Saylor filed a motion for a change in parental rights

and responsibilities (custody). He alleged that Lewis had enabled the boys to

continue to use social media for sexual and pornographic purposes. On October 18,

2017, Saylor filed a motion for contempt alleging harassment by Lewis. Lewis had

filed a motion to terminate shared parenting on May 3, 2017, and a motion to

amend/clarify on March 1, 2018. The parties convened for trial on March 13, 2018,

to resolve the four pending motions. A partial trial was conducted, but was

continued in progress until the next day, at which time the parties came to an agreed

entry resolving all pending motions before the court. The court accepted the agreed

entry and concluded the trial.

{¶6} On December 21, 2018, Saylor filed two motions—a motion for

“contempt of parenting time, reimbursement of attorney fees, harassment,” and a

motion for a change of parental rights and responsibilities (custody). Saylor’s appeal

is based upon his motion for change of parental rights and responsibilities, in which

he argued that circumstances had changed since he “agreed with Mrs. Lewis to work

together to resolve all issues” on March 14, 2018. He claimed that Lewis had failed to

work with him and that she continued to allow the boys to access pornography and

engage inappropriately with strangers over social media. For those reasons, he asked

the court to grant him sole custody.

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{¶7} On February 14, 2019, and June 14, 2019, the court held hearings on

Saylor’s motions. Lewis argued that the issues raised by Saylor in his December 21,

2018 motions had already been decided by the agreed entry on March 14, 2018.

Saylor argued that he was never given the chance to present evidence of Lewis’s

failure to “stop” the boys’ behavior involving pornography and inappropriate social

media use, and so that issue remained unresolved. Also, he contended that the

agreed entry was temporary as to the allocation of parental rights and

responsibilities because it stated that “mother shall be designated the temporary

residential and custodial parent.”

{¶8} The court held that the March 14, 2018 agreed entry resolved all of the

issues that were pending at the time, and that it was permanent, despite the

inclusion of the word “temporary” in its allocation of custody and residency. The

court held that it would not hear evidence from before March 14, 2018, in its

consideration of Saylor’s December 21, 2018 motions. On July 18, 2019, the court

denied Saylor’s motions.

First Assignment of Error

{¶9} The thrust of Saylor’s first assignment of error is that he was denied

the ability to present his case. He argues that the trial court erred where it found

that the March 14, 2018 agreed entry resolved all issues pending before the court,

and that he must demonstrate a change of circumstances after March 14, 2018, in

order to achieve a modification to custody.

{¶10} Generally, custody decisions are reviewed for an abuse of discretion.

“Custody issues are some of the most difficult and agonizing decisions a trial judge

must make. Therefore, a trial judge must have wide latitude in considering all the

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evidence before him * * * and such a decision must not be reversed absent an abuse

of discretion.” Kane v. Hardin, 1st Dist. Hamilton No. C-180525, 2019-Ohio-4362, ¶

6, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶11} However, where the question is whether the trial court correctly

decided a question of law, such as its interpretation of the agreed entry, we review de

novo. See Shah v. Smith, 181 Ohio App.3d 264, 2009-Ohio-743, 908 N.E.2d 983, ¶ 7

(1st Dist.); State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 6;

Mangan v. Mangan, 2d Dist. Greene No. 07–CA–100, 2008-Ohio-3622, ¶ 6. Thus,

we review the trial court’s decision to limit Saylor’s ability to present his evidence de

novo.

{¶12} R.C. 3109.04(E)(1) governs motions to modify a parenting decree,

including decrees regarding custody and residency. Modifying a parenting decree is

not permitted unless: (1) there has been a change in circumstances since the prior

decree, based on facts that have arisen since the prior decree or were unknown by the

court at the time of the prior decree; (2) the modification is necessary to serve the

best interest of the children; and (3) one of the conditions in R.C.

3109.04(E)(1)(a)(i)-(iii) is satisfied. R.C. 3109.04(E)(1)(a).

{¶13} The trial court determined that Saylor had failed to demonstrate a

change in circumstances since March 14, 2018, and denied his motion. Saylor argues

that the agreed entry was not intended to be a “prior decree,” from which he must

demonstrate a change in circumstances because, (1) the parties did not resolve any

issues in the agreed entry, rather they merely committed to working together to

resolve the issues, and (2) the provisions in the agreed entry were temporary.

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{¶14} First, we discuss whether the agreed entry resolved the issues that

were pending before the court. In Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-

Ohio-765, 908 N.E.2d 489, ¶ 13 (4th Dist.), the Fourth District interpreted an agreed

entry as it pertained to custody. “When examining a written instrument, the cardinal

purpose is to ascertain and give effect to the intent of the parties.” Id., citing Foster

Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio

St.3d 353, 361, 678 N.E.2d 519, (1997). “The intent of the parties to a contract is

presumed to reside in the language they chose to employ in the agreement.” Purvis

at ¶ 13, quoting Foster at 361.

{¶15} In this case, the agreed entry listed the four motions pending at that

time, and stated that the parties “wish to resolve all pending motions under the

following terms.” Regarding custody and residency specifically, the agreed entry

stated, “The Shared Parenting Plan and Decree between the parties shall be

terminated, and Mother shall be designated the temporary residential and custodial

parent of [the children] until further order of the court or the agreement of the

parties.”

{¶16} The language employed by the parties demonstrates that the agreed

entry was intended to resolve all matters before the court, including the cell phone,

social media, and inappropriate-sexual-behavior issues raised by Saylor in his

motion to change parental rights and responsibilities. The agreed entry was more

than just an expression by the parties to work together to resolve the issues of

custody and residency, it actually resolved those issues.

{¶17} Next, we address Saylor’s argument that the agreed entry was meant to

be temporary. Lewis argues that her designation as the “temporary” custodial and

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residential parent does not affect the permanence of the agreed entry itself. This was

the same rationale followed by the trial court.

{¶18} Temporary orders allocating parental rights and responsibilities are

common predivorce decree. They are governed by their own code section. See R.C.

3109.043 (giving the trial court the authority to make temporary orders regarding

the allocation of parental rights and responsibilities when requested in the

complaint, answer, or counterclaim, or by motion served with the pleading). Also,

the Ohio Rules of Civil Procedure contemplate these types of pretrial orders, and

designate them as interlocutory. See State ex rel. Thompson v. Spon, 83 Ohio St.3d

551, 554-555, 700 N.E.2d 1281 (1998); Civ.R. 75(N) (formerly 75(M)).

{¶19} We found few cases involving a temporary allocation of parental rights

and responsibilities post-divorce decree. In the cases that addressed the issue, it was

clear that the court intended the order to be temporary. See Pierson v. Gorrell, 12th

Dist. Butler No. CA2011–11–216, 2012-Ohio-3878, ¶ 3 (mother was moving out of

state and a determination of custody was required immediately; the court scheduled

the matter for a future hearing where it determined that a change in circumstances

had occurred warranting a change in custody under R.C. 3109.04); Williams v.

Williams, 11th Dist. Trumbull No. 2002-T-0101, 2004-Ohio-3992, ¶ 16 (in holding

that the trial court’s grant of temporary custody was not final and appealable, the

Eleventh District relied upon the interim nature of the order—“Where the

permanency of a child’s relocation is premised upon a future review hearing [because

mother was moving out of state], it stands to reason that said order is temporary”).

{¶20} The agreed entry in this case was not clearly temporary like the orders

in Pierson and Williams. We are not faced with the issue of a parent moving out of

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the jurisdiction, and so the permanency of the children’s residency was not premised

upon a future review hearing. Furthermore, in Williams and Pierson, the temporary

custody orders did not actually resolve the fathers’ pending motions for custody. In

both cases, the custody awards were interim in nature, and the court held hearings a

few months later to resolve the custody motions. The agreed entry in this case

explicitly sought to resolve all pending motions, including Saylor’s custody motion,

and it unequivocally terminated the shared-parenting plan. Also, the court did not

schedule a future review hearing.

{¶21} As the court explained to Saylor during the June 14, 2019 hearing, the

allocation of custody and residency was described as temporary because the agreed

entry laid out a reunification plan for Saylor, and once Saylor completed the plan, he

could petition the court to amend the agreed entry. Saylor had a chance to present

evidence of Lewis’s failure to monitor the boys’ social media and internet usage.

Instead, he signed an agreed entry resolving the issues. Saylor’s first assignment of

error is overruled.

Second Assignment of Error

{¶22} In his second assignment of error, Saylor argues that the trial court

abused its discretion by failing to properly weigh all of the evidence. Many of

Saylor’s arguments under his second assignment of error relate back to the trial

court’s determination that it would not consider evidence from before March 14,

2018.

{¶23} First, Saylor argues that by limiting its review to evidence of events

after March 14, 2018, the court violated R.C. 3109.04(F)(1)(h), which required the

court to determine whether Lewis had acted in a manner resulting in the children

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being abused or neglected. As discussed above, the trial court did not err in limiting

Saylor to presenting only evidence of events that occurred after March 14, 2018.

Without evidence of any abusive or neglectful conduct on the part of Lewis, the trial

court did not violate R.C. 3109.04(F)(1)(h).

{¶24} Next, Saylor argues that, pursuant to Evid.R. 405(B), he should have

been permitted to provide “specific incidents of conduct” regarding Lewis’s behavior.

Evid.R. 405(B) states that “in cases in which character or a trait of character of a

person is an essential element of a charge, claim, or defense, proof may also be made

of specific instances of his conduct.” There are no charges, claims, or defenses in this

case in which character or a trait of character is an essential element of proof.

Saylor’s Evid.R. 405(B) argument is meritless.

{¶25} Next, Saylor argues that the trial court failed to properly consider

Lewis’s actions after signing the agreed entry on March 14, 2018. He contends that

her actions demonstrated her unwillingness to cooperate and make decisions jointly,

and to encourage love and affection between him and the children as required by

R.C. 3109.04(F)(2)(b). He argues that he should have been permitted to introduce

evidence of Lewis’s attempts to undermine his relationship with them. Saylor argues

that after signing the agreed entry, Lewis continued to allow the boys to access social

media, that she ignored his emails and refused to cooperate with him, and that she

withheld A.S. from visiting him for four months.

{¶26} The trial court agreed that Lewis had withheld A.S. from visiting

Saylor, but held that Lewis had good reason for doing so. On Easter weekend 2018,

there was an incident between Saylor and A.S. in which he told A.S. to “go home,”

instead of spending the weekend with him. A.S. returned to Lewis’s home and

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committed self harm immediately thereafter. The court described Saylor’s

relationship with A.S. as a “key trigger” of her self-harming behavior. Saylor also

refused to communicate with Lewis regarding the incident. Thus, the court held that

Lewis’s decision to keep A.S. away from Saylor was justified.

{¶27} The trial court considered the parties’ lack of cooperation, and found

that it was Saylor, not Lewis, who had failed to cooperate and “who has no interest in

accepting responsibility for his role in his children’s behavior or in working with

[Lewis] to raise their children.” The court explained that it was “gravely troubled by

[Saylor’s] lack of self-reflection, and the evidence as well as his demeanor at trial lead

the Court to conclude that [Saylor], not [Lewis] is uncooperative and disruptive to

his children’s healthy development.” In support, the court cited to Saylor’s refusal to

read the GAL reports, to read Lewis’s messages, and to cooperate with A.S.’s

counselor, and his attempts to undermine A.S.’s relationship with Lewis, as

evidenced by the card he sent A.S. after the Easter weekend incident in which he

wrote, “It is so sad that your mom’s bitterness and hate is [sic] used to keep you from

seeing your father.” The trial court did not abuse its discretion in finding that it was

Saylor, and not Lewis, who was being uncooperative and undermining.

{¶28} Finally, as part of his second assignment of error, Saylor argues that

the trial court violated Hamilton County Court of Common Pleas Domestic Relations

Division Local Rule 1.13(B) (“Loc.R. 1.13(B)”) where it accepted the agreed entry even

though Saylor was not represented by counsel. However, in this assignment of error,

Saylor challenges the trial court’s weighing of the evidence, and his Loc.R. 1.13(B)

argument does not pertain to the trial court’s weighing of the evidence.

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{¶29} This court is limited to determining the merits of any appeal “on the

assignments of error set forth in the briefs * * * to receive consideration on appeal,

trial court errors must be raised by assignment of error and must be argued and

supported by legal authority and citation to the record.” (Citation omitted.) State v.

Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 43 (1st Dist.). “Appellate courts review

assignments of error—we sustain or overrule only assignments of error and not mere

arguments.” State v. Harlow, 4th Dist. Washington No. 13CA29, 2014-Ohio-864, ¶

10. Without an assignment of error regarding Loc.R. 1.13(B), Saylor has not properly

invoked our power of review by “identifying and framing with particularity the

issues” he seeks to have reviewed. See Newell v. Shumate, 9th Dist. Lorain No.

10CA009837, 2011-Ohio-2448, ¶ 5. Therefore, we do not reach the merits of Saylor’s

Loc.R. 1.13(B) argument.

{¶30} Saylor’s second assignment of error is overruled.

Conclusion

{¶31} Saylor’s assignments of error are overruled, and the judgment of the

trial court is affirmed.

Judgment affirmed.

ZAYAS, P.J., and BERGERON, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.