Thacker v. Thacker

2010 Ohio 5675

• Court: Ohio Court of Appeals
• Decided: November 22, 2010
• Docket: 9-10-26
• Status: Published

Opinion

[Cite as Thacker v. Thacker, 2010-Ohio-5675.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

MELANIE THACKER,

PLAINTIFF-APPELLEE, CASE NO. 9-10-26

v.

SHANE A. THACKER, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2005 DR 0199

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: November 22, 2010

APPEARANCES:

J. C. Ratliff for Appellant

Kevin P. Collins for Appellee Case No. 9-10-26

ROGERS, J.

{¶1} Defendant-Appellant, Shane Allen Thacker, appeals the judgment of

the Court of Common Pleas of Marion County, Family Division, denying his

motion to reallocate parental rights and responsibilities, and granting Plaintiff-

Appellee’s, Melanie Lynn Thacker, motion to recalculate child support and

modify parenting time. On appeal, Shane argues that the trial court erred in

denying his motion for shared parenting because its findings were not supported

by competent, credible evidence; that the trial court erred in modifying the

parenting time schedule; and, that the trial court erred in imputing income to him

at his prior rate of earning and in increasing his child support obligation. Based

upon the following, we affirm the judgment of the trial court modifying the

parties’ parenting time schedule and denying Shane’s motion for shared parenting,

but reverse the judgment of the trial court recalculating Shane’s child support

obligation.

{¶2} Shane and Melanie were married in August 1998. Four children

were born of the marriage including Madelyn Thacker, Collin Thacker, Sophia

Thacker, and Gabriel Thacker (hereinafter collectively referred to as “the

children”). In February 2006, the parties terminated their marriage. The decree of

divorce designated Melanie as the legal custodian and residential parent of the

children. Shane was granted parenting time with the children from Sunday at 6:00

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P.M. until Wednesday at 5:00 A.M. Additionally, the trial court ordered Shane to

pay child support to Melanie in the amount of $106.84 per month per child.

{¶3} In September 2009, Shane filed a motion to reallocate parental rights

and responsibilities for the children and a proposed shared parenting plan.

Additionally, Shane filed a motion for an order of contempt against Melanie,

arguing that she failed to refinance the mortgage obligation on the marital

residence as ordered by the February 2006 divorce decree. Shane’s proposed

shared parenting plan suggested that he receive parenting time and be designated

the residential parent every Thursday from the end of his workday until Monday

morning, except that, once each month, his parenting time would end Tuesday

morning, and that Melanie would receive parenting time and be designated the

residential parent at all remaining times.

{¶4} In October 2009, Melanie responded to Shane’s motions, alleging

that he should not be granted shared parenting and that his proposed parenting

plan should not be adopted because he had been convicted of domestic violence

against a child who was a member of his household; because he had twice been

convicted for violating a civil protection order; because he had been charged with

public indecency, which resulted in a conviction for disorderly conduct; because

he had been convicted of falsification; because he was required to take medication

and attend counseling to treat his bipolar disorder in conjunction with his

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falsification conviction, but now denied he had the condition; and, because she

was afraid of him. Additionally, Melanie argued that, since the February 2006

divorce decree, Shane’s work hours had changed and she had completed her

education; that it was not appropriate for Shane to have the children on school

nights; and, that allowing Shane to have the children every weekend was unfair

because she would have no recreational time with them. Additionally, Melanie

moved for a recalculation of child support on the basis that her and Shane’s

employment situations had changed.

{¶5} In December 2009, Shane filed another motion for contempt against

Melanie, arguing that she willfully and repeatedly interfered with his right to

parenting time with the children, and that she failed to offer him the right of first

refusal to care for the children.

{¶6} In February 2010, Melanie filed a trial brief arguing that shared

parenting was not in the children’s best interests because of Shane’s alleged

history of child abuse, spousal abuse, and other domestic violence; because she

had been the victim of some of Shane’s violence, which resulted in the parties

being unable to cooperate and make joint decisions concerning the children;

because Shane had been convicted of domestic violence against a child who was a

member of his household; because Shane was twice convicted of violating a civil

protection order Melanie had obtained against him, which occurred from Shane’s

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conduct toward her at exchanges of the children; because, in 2002, three minor

children identified Shane as a person who exposed his penis to them, resulting in a

charge of public indecency, and Shane’s plea to a reduced charge of disorderly

conduct; because, in conjunction with his falsification conviction, Shane was

required to take medication and attend counseling to treat his bipolar disorder, but

that he now denied the condition and refused to take medication or attend

counseling; because the children had always lived with Melanie and were well-

adjusted to their home and school; because Shane did not take proper care of the

children, who had various medical problems; because Shane failed to make all of

his required child support payments and failed to pay half of the uninsured

medical expenses and child care as ordered by the divorce decree; and, because

Shane had refused to seek appropriate medical treatment for the children in

emergency and routine situations.

{¶7} Melanie further argued that Shane’s motions for contempt should be

denied because it was Shane’s failure to meet Collin’s medical needs that

necessitated his absence from visits with Shane for a period of time. Finally,

Melanie proposed that Shane should receive parenting time every other weekend

from 4:15 p.m. on Friday until 8:30 p.m. on Sunday, and that child support be

increased to $170.72 per month per child.

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{¶8} Thereafter, Shane filed a trial brief arguing that, in November 2008,

the parties agreed that he would receive visitation with the children from Thursday

evening until Monday morning every week, and Monday night visitations every

other week to accommodate the parties’ schedules, and that the parties had been

voluntarily following this schedule since November 2008. Shane argued that his

request for reallocation of parental rights and responsibilities merely adopted the

visitation schedule the parties had voluntarily been following.

{¶9} The case proceeded to a final hearing on February 11, 2010, at

which the following testimony was heard.

{¶10} Kenneth Warren, of the Family Services Department, testified that

he met with Shane and Melanie each for approximately one hour; that he met with

each of the children for approximately fifteen to twenty minutes; that he observed

each parent’s home; that he did not observe a pattern of failure to facilitate

parenting time between the parties; and, that he recommended decreasing the

amount of parenting time Shane was currently receiving. Warren continued that

he believed children should be taken to the emergency room for injuries such as

falling from a high slide and becoming unresponsive, being bitten on the head by a

dog, or sustaining bruised and bleeding genitals from falling; that he did not

believe it would be good judgment in these situations for a parent to fail to take the

child to the emergency room, and to call the other parent who is out of town to

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pick up the child instead; and, that he believed the court should require a parent

diagnosed with bipolar disorder to receive mental health treatment as a condition

of receiving parenting time.

{¶11} Melanie testified that she had five children, including the four

Thacker children and a son from a previous marriage; that she had made

arrangements to move the family to a four-bedroom home; that she was employed

as a registered nurse; that the 2006 divorce decree provided that Shane would have

parenting time from Sunday at 6 p.m. until Wednesday morning at 5 a.m.,

corresponding with Shane’s days off work, and that each party would have the

right of first refusal to have parenting time with the children if the other parent

would otherwise leave the children in the care of another; that, at some point

thereafter, Shane lost his job and they agreed to change visitation so that Shane

would have the children from every Friday evening until Monday before school;

that, in early 2009, she began to offer Thursday evenings as parenting time for

Shane because she was in school during that time and was abiding with the right

of first refusal; that, around February or March 2009, she and Shane verbally

agreed to change visitation whereby Shane would have the children every

Thursday until Monday; that, in June 2009, she finished school, so the parties went

back to the Friday through Monday arrangement; and, that she agreed to increase

Shane’s parenting time to the Thursday through Monday arrangement temporarily

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because she was required to under the right of first refusal, but that she did not

want Shane to have the right of first refusal, because she did not believe he was an

adequate caretaker of the children.

{¶12} Melanie continued that the children had some health issues,

including that Sophia had a history of seizures, migraines, and had been diagnosed

as possibly carrying the gene for neurofibromatosis, and that Collin had ADHD;

that she had denied Shane visitation with Collin for approximately the month of

October 2009 because he had poison ivy that resulted in a serious wound due to

Shane’s improper care; that the children had issues with head lice a few years

earlier; that she treated the lice, but the children continued to have lice, so she

treated them again; that there had been no hygiene problems with the children; that

she took Madelyn to the emergency room after she fell and injured her genital

area, and Shane did not go with her because he was afraid he would be accused of

abuse; that she took Collin to the emergency room after he fell from a slide; that

she picked Gabriel up from Shane’s home and took him to the emergency room

after he was bitten by a dog because Shane refused to take him; that Collin’s

poison ivy resulted in an open wound while he was in Shane’s care because Shane

had not properly cared for the injury and put a bandage on it that was extremely

tight; and, that Shane also failed to administer Collin’s medication properly.

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{¶13} Melanie continued that she worried about the safety of the children

while in Shane’s care due to his “violent past” and “poor judgment” regarding

their medical care (hearing tr., p. 220); that, in 2002, Shane was convicted of

domestic violence against Joshua, her eight-year-old son from a previous

marriage; that Joshua sustained a black eye that was swollen shut, a bruised and

swollen face, dry, crusted blood on his nose, a bloody nose, and bruised handprints

on his throat; that she was afraid of Shane due to the violence she sustained

throughout their relationship and marriage, including that he hit her, pulled her

hair, kicked her, threatened her with a knife, and abused her verbally; that the

violence escalated throughout the marriage; that Shane had threatened violence if

she called the police; that, when she filed for divorce, Shane threatened to burn her

and the children in their home; that, when Shane was taking medication for bipolar

disorder, his behavior improved; and, that she had requested exchanges of the

children take place at the Sheriff’s department because Shane made a “nasty”

comment to her and tried to get in her vehicle on one occasion when the parties

were exchanging the children.

{¶14} Melanie continued that Shane’s change in employment resulted in

them not having medical insurance for some time; that she would be able to

provide medical insurance for the children; that Shane had not always made timely

child support payments; that, in 2006, when child support was initially calculated,

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she earned $14,000 a year; and, that she was earning $46,800 a year at the time of

the hearing.

{¶15} Shane testified that he and his fiancée, Kelly Harris, lived together in

a four-bedroom home; that all four girls, including his two daughters and Harris’s

two daughters, shared one bedroom; that he was working for Guardian Protection,

his previous employer, but was no longer a salaried employee after being

dismissed in December 2009; that he made $32,000 in 2006 and $27,349 in 2009;

that his income had decreased from the time of the divorce decree; that he made

$250 to $300 in December 2009, and $150 in January 2010; that he did not plan

on seeking unemployment benefits because he was getting ready to start a new

job; that he expected to make an income comparable to his previous job in the

security industry; and, that he did not know whether he had paid half of the

children’s daycare expenses because he just paid what Melanie told him to.

{¶16} Shane continued that he often received more parenting time than was

provided in the 2006 divorce decree at Melanie’s behest; that, in November 2008,

he and Melanie came to a verbal agreement that he would have parenting time

from Thursday until Monday morning, or occasionally Monday evening; that the

parties cooperated with this agreement; that, in September 2009, when he filed the

motion to reallocate parental rights and responsibilities, Melanie stopped allowing

him to have parenting time from Thursday until Monday, and reverted to their

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previously agreed to Friday to Monday schedule; and, that he believed the parties

should continue to have the right of first refusal for parenting time.

{¶17} Shane testified further that he never put his children in any type of

danger; that he had assisted his children with their homework in the past, but that

they rarely brought homework assignments during his parenting time; that, in

October 2009, when Melanie had denied him visitation with Collin, he had treated

Collin’s poison ivy according to the directions on the medication bottle, and then,

when the wound worsened, he applied some antiseptic spray, ointment, and gauze

that he purchased; that, when Madelyn injured her genital area by falling on a

footboard, he “picked her up, * * * had [his] mom come up,” and had his mother

check her for injuries (Id. at 127); that he and his mother took her to the

emergency room because she had a laceration; that Melanie came to the hospital

with her insurance card, but did not go into the hospital; and, that he took Gabriel

to the hospital when he was bitten by a dog. Shane continued that he had concerns

about the children while in Melanie’s care because the children had repeated

issues with head lice; because their hair was unkempt and their clothing was

usually torn; and, because he did not believe all the children could safely ride in

Melanie’s sports car because one of the seatbelts was “literally for insurance

purposes.” (Id. at 130).

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{¶18} Shane continued that, in 2002, Melanie’s nine-year-old son was

residing as a member of his household; that he and the child had a dispute over

homework that became violent; that he entered a plea of guilty to violating a

protection order Melanie had obtained against him; that, as a result of his plea, he

was required to “comply with doctor’s recommended treatment,” which was

treatment for his bipolar disorder (Id. at 152); that, in late 2006, a new doctor took

him off medications because the doctor did not believe he had bipolar disorder, but

was just depressed due to his bad marriage; that he was not currently on any

medication; that he entered a plea of no contest to a disorderly conduct charge that

arose when three minor females claimed he exposed his penis to them; and, that

his conviction for falsification was a misunderstanding because he had tried to file

a domestic violence order against Melanie, and then tried to recant.

{¶19} Harris, Shane’s fiancée, testified that she had a good relationship

with the children; that she had two children of her own; that she and Shane both

assisted the children with homework, and that Shane was very patient with the

children in doing their homework; that she had not seen Shane lose his temper in

front of the children; that she had no concerns about Shane’s parenting; that she,

Shane, and the children spent every Friday night together as a family; and, that

Shane was a “phenomenal” father.

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{¶20} Harris continued that she had concerns about the children’s hygiene

because occasionally, when they received the children from Melanie’s care, they

had inappropriate clothing, unbrushed hair, and unclean faces; that the children

had lice at some point; that she had voiced her hygiene concerns to personnel at

Epworth Preschool and Daycare (hereinafter “Epworth”), and that they told her

they had noticed those issues; that, when Collin fell, she went to the hospital, and

she and Melanie “literally walked in the door together” (id. at 88); that she had

seen Melanie and Shane interact in a friendly manner; that Shane was voluntarily

changing to a career in insurance; and, that the “company that he’s actually

changing to is a company that he’s been looking at for two years.” (Id. at 95).

{¶21} Robin Rick, the director at Epworth, testified that she was familiar

with the Thacker family; that the children began attending Epworth in September

2005; that the parties had issues in the prior six weeks concerning who was

allowed to pick up the children from Epworth; and, that she had observed no

problems with the children’s hygiene, school attendance, or clothing, and had

never voiced any such concerns to the parties.

{¶22} Rose Brough testified that she was an assistant teacher at Epworth;

that she was familiar with the Thacker family; that she had no concerns about the

children’s hygiene or clothing, and had never voiced any concerns to the parties;

that Shane had brought clothing to Epworth for the children including snow pants,

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gloves, and hats; and, that she could not tell from the children’s hygiene or

behavior whether they had come from Shane’s or Melanie’s home.

{¶23} Elizabeth Lister testified that she was Shane’s mother; that she had a

good relationship with the children; that the parties used to get along; that Shane

did not voluntarily leave his previous employment, but was fired; that she had

observed Shane help the children with homework, and he was very patient with

them; that she was present when Madelyn injured her genital area by falling on a

footboard; that Shane took Madelyn to the hospital, not Melanie; that Melanie

appeared at the hospital and gave Shane a medical card, but did not go into the

hospital; that, when Gabriel was bitten by a dog, she and Shane took him to the

hospital; that Melanie came to the hospital, but did not go in; and, that Melanie

sent the children to school with inappropriate clothing and ill-fitting footwear.

{¶24} At the hearing, Warren’s Family Service Coordinator’s Report was

admitted as an exhibit, and provided, in pertinent part, that the right of first refusal

was not in the best interests of the children due to the history of conflict between

the parties; that Melanie reported the parties’ marriage ended due to Shane’s

violent behavior; that Melanie reported that, based on things the children had told

her, she was concerned about Shane excessively disciplining them; that Melanie

related that, during an exchange of the children in October 2009, Shane attempted

to get into her vehicle and said “What are you going to do, bitch?” while the

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children were present (Warren Report, p. 8); and, that Melanie reported Shane did

not take the children to school in a timely fashion on Mondays.

{¶25} Warren’s report continued that Shane reported Melanie had told the

children that he wanted to take them away from her, and that he wanted them to

get thrown out of their house; that Shane reported Melanie was responsible for his

violation of the civil protection order because she created disturbances and knew

how to “push [his] buttons to get [him] angry,” but that he no longer “let her get to

him” (id. at 12); that Shane related that he did not remember the particulars about

the domestic violence incident for which he was convicted; that Shane reported

that his falsification charge arose because Melanie struck him with a telephone, he

reported the incident, and then recanted the incident because he did not want her to

get in trouble; that Shane stated, following the divorce, he often had the children

five or six days a week; that, in November 2008, Shane stated he began receiving

parenting time from Thursday until Monday, but that, since he filed the “papers,”

he only received parenting time from Friday to Monday; that, during the October

2009 exchange incident, Shane reported that he looked into Melanie’s vehicle to

see if one of the children was still inside, and Melanie screamed obscenities at

him, shoved him, and accused him of trying to steal her vehicle; that Shane

believed any conflict between the parties was one-sided on Melanie’s part; that

Shane stated he had concerns about the safety of the children in Melanie’s care

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because her prior boyfriend’s child had been abducted, because she had a

“revolving door of men,” because the children had become sunburned on vacation

while in her care, because the children had contracted lice while in her care, and

because the staff at Epworth allegedly told him that the children did not get

enough sleep while in Melanie’s care and were unclean after being at her home

(id. at 15); that Shane reported that Melanie allowed the children to listen to

inappropriate music; and, that Shane claimed Melanie interfered with his right of

first refusal.

{¶26} Warren found that both parties’ homes were appropriate; that there

was no finding of child abuse or neglect by either of the parties regarding the

Thacker children; and, that Shane had been charged with domestic violence on

two occasions, involving Melanie and her son from a prior relationship, and with

violation of civil protection orders. Warren concluded in his report that he did not

believe it was in the best interests of the children to have a shared parenting plan;

that he believed Melanie should be the children’s residential parent; that he

believed the children would benefit from weekend visitation with Shane; that he

recommended Shane receive parenting time every other weekend from Friday

until Sunday evening at 6:00 p.m.; and, that he believed the right of first refusal

was not in the best interests of the children given the history of conflict between

the parties.

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{¶27} Also admitted at the hearing were multiple exhibits including (1) a

March 2002 judgment entry of Shane’s conviction for domestic violence, (2) a

June 2005 judgment entry of Shane’s conviction for violating Melanie’s civil

protection order against him, (3) a September 2006 judgment entry of Shane’s

conviction for violating Melanie’s civil protection order against him, (4) an

October 2002 judgment entry of Shane’s conviction for an amended charge of

disorderly conduct, accompanied by a police report alleging that Shane had

exposed his penis to three minor females, (5) a February 2005 judgment entry of

Shane’s conviction for falsification, ordering that “Defendant shall comply with

any/all doctors orders regarding his treatment for bipolar disorder” (Feb. 2005

judgment entry, p. 2), (6) an October 9, 2009 discharge report from the Marion

General Hospital diagnosing Collin with poison ivy, (7) an October 20, 2009

report from the Smith Clinic stating that Collin had an open infected wound on his

leg that required extensive care, and (8) various other October 2009 documents

detailing Collin’s wound-related medical care.

{¶28} Thereafter, the trial court issued a judgment entry denying Shane’s

motions for contempt against Melanie, denying Shane’s motion for shared

parenting, and granting Melanie’s motion to modify parenting. In granting

Melanie’s motion, the trial court found that there had been a change in

circumstances; that it was in the children’s best interests that Melanie remain the

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residential parent and legal custodian; and, that Shane be granted visitation on

alternating weekends from Friday evening until 6:00 p.m. on Sundays. The trial

court specifically found that the children had incurred various injuries while in

Shane’s care, with all but one of the children requiring emergency room care; that

Shane’s testimony about who took the children to the emergency room was not

credible; that Shane had been convicted of domestic violence against a household

member; that Shane had been convicted of violating a domestic violence civil

protection order obtained by Melanie; that the parties had adjusted their visitation

schedule over the years to accommodate their changing work schedules; and, that

Melanie allowed Shane increased parenting time while she was attending school

because she was required to under the right of first refusal, but that she did not

want Shane to have the right of first refusal because she was worried about the

children’s safety while in his care.

{¶29} Regarding child support, the trial court found that Melanie earned

$44,132 per year, and that Shane had recently been terminated from salaried

employment and was working on a contract basis; that Shane indicated he would

be starting a new career and anticipated income at his prior rate; that his prior

income of $32,700 would be imputed to Shane; that Melanie should provide health

insurance for the children; and, that Shane should pay Melanie child support of

$173.02 per month per child.

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{¶30} It is from this judgment that Shane appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR SHARED PARENTING AS ITS FINDINGS WERE NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.

Assignment of Error No. II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN MODIFYING APPELLANT’S PARENTING TIME SCHEDULE WITH THE MINOR CHILDREN.

Assignment of Error No. III

THE TRIAL COURT ERRED IN IMPUTING INCOME TO APPELLANT AT HIS PRIOR RATE OF EARNINGS AND INCREASING HIS CHILD SUPPORT OBLIGATION.

{¶31} Due to the nature of Shane’s arguments, we elect to address his first

and second assignments of error together, preceded by an overview of the standard

of review.

Standard of Review

{¶32} Decisions concerning child custody matters rest within the sound

discretion of the trial court. Miller v. Miller (1988), 37 Ohio St.3d 71, 74.

Custody determinations are some of the most difficult and agonizing decisions a

trial judge must make, and, therefore, appellate courts must grant wide latitude to

their consideration of the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d

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415, 418. Therefore, a reviewing court will not reverse a trial court’s decision

regarding child custody absent an abuse of discretion. Masters v. Masters (1994),

69 Ohio St.3d 83, 85. A finding of abuse of discretion requires evidence that the

decision of the trial judge was unreasonable, arbitrary, or unconscionable. Leigh

v. State Emp. Relations Bd. (1996), 76 Ohio St.3d 143, 144.

{¶33} When a reviewing court applies the abuse of discretion standard, it

may not substitute its own judgment for that of the trial court. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219. “The underlying rationale of giving

deference to the findings of the trial court rests with the knowledge that the trial

judge is best able to view the witnesses and observe their demeanor, gestures and

voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,

80.

Assignments of Error Nos. I & II

{¶34} In his first assignment of error, Shane argues that the trial court erred

and abused its discretion in denying his motion for shared parenting because its

findings were not supported by competent, credible evidence. Specifically, Shane

argues that, despite the 2006 order designating Melanie as the children’s

residential parent, the parties substantively had been following a shared parenting

order due to their verbal agreement, and that, consequently, the trial court should

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have applied the “best interests factors” to that living situation. Additionally,

Shane disputes the trial court’s finding that the parties could not cooperate; argues

that no evidence suggested he suffered from mental health issues; contends that

Melanie’s testimony about his refusal to seek proper medical treatment for the

children was not credible; that Melanie’s testimony that she was afraid of him and

feared for the safety of the children while in his care was not credible, given that

she voluntarily expanded his visitation in the past; that any domestic violence

concerns about Shane based on prior acts were known to Melanie at the time of

the initial divorce hearing, and could not be heard at this hearing on the principles

of res judicata; that there was no testimony that the children had suffered any harm

or had been exposed to domestic violence while in his care post-divorce; and, that

the trial court should not have awarded Melanie parenting time beginning at 6:00

p.m. on Sundays because the children would be in the custody of a third party until

Melanie returned from work at 8:30 p.m.

{¶35} In his second assignment of error, Shane argues that the trial court

erred and abused its discretion in modifying the parties’ parenting time schedule.

Specifically, Shane contends that, in November 2008, the parties voluntarily

increased Shane’s parenting time to four and one-half days of parenting time per

week; that, as this was the visitation schedule the parties were following rather

than the court-ordered schedule, there was no change in circumstances warranting

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a reduction in his parenting time; that Melanie’s testimony about her concerns was

not credible because she had voluntarily expanded his parenting time in the past;

that he presented evidence that the parties were cooperative; that the trial court

failed to engage in a meaningful analysis of why a decrease in his parenting time

was in the children’s best interests; that the schedule adopted by the trial court

reduced his visitation to less than was normally recommended by Marion County

Local Rule 32.1; that the trial court should not have eliminated the parties’ right of

first refusal; that the trial court failed to engage in an analysis of the statutory

factors set forth in R.C. 3109.051; and, that the trial court did not engage in a

meaningful, independent review of the evidence.

I. Modification of Prior Court Orders

{¶36} R.C. 3109.04(E) governs modification of prior court orders

allocating parental rights and responsibilities and provides as follows:

(E)(1)(a) The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:

***

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(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

(b) One or both of the parents under a prior decree allocating parental rights and responsibilities for the care of children that is not a shared parenting decree may file a motion requesting that the prior decree be modified to give both parents shared rights and responsibilities for the care of the children. The motion shall include both a request for modification of the prior decree and a request for a shared parenting order that complies with division (G) of this section. Upon the filing of the motion, if the court determines that a modification of the prior decree is authorized under division (E)(1)(a) of this section, the court may modify the prior decree to grant a shared parenting order, provided that the court shall not modify the prior decree to grant a shared parenting order unless the court complies with divisions (A) and (D)(1) of this section and, in accordance with those divisions, approves the submitted shared parenting plan and determines that shared parenting would be in the best interest of the children.

Thus, in order for a trial court to modify a prior allocation of parental rights and

responsibilities, it must make a threshold finding that a change in circumstances

has occurred, and, if so, it must then determine that the modification is in the best

interest of the child. Wooten v. Schwaderer, 3d Dist. No. 14-08-13, 2008-Ohio-

3221, ¶3.

A. Change in Circumstances

{¶37} As Shane has argued that the trial court erred in finding that a

change in circumstances had occurred, we will first analyze this threshold issue

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before addressing his contention that the trial court erred in finding that shared

parenting was not in the best interests of the children.

{¶38} The threshold finding that a change in circumstances has occurred

requires a change of substance, not a slight or inconsequential change. Wooten,

2008-Ohio-3221, at ¶4. This Court has previously stated that “‘the change does

not have to be quantitatively large, but rather, must have a material effect on the

child.’” McLaughlin v. McLaughlin Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-

1087, ¶16, quoting Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377,

¶31.

{¶39} Here, Shane argues that, because the parties had been voluntarily

following a parenting schedule whereby he had the children for four and one-half

days per week for a period of time beginning in November 2008, there was no

change in circumstances to warrant a reduction in his parenting time. Melanie

argues that Shane should not be permitted to raise this argument on appeal, as he

did not argue this argument at the trial court level; and, that, Shane’s repeated

failure to procure appropriate medical treatment for the children constituted a

change in circumstances.

{¶40} Initially, we note that Shane’s September 2009 motion to reallocate

parental rights and responsibilities specifically claimed that “there has occurred a

change of circumstances warranting modification of custody.” Thus, at the trial

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court level, Shane argued a theory contrary to the argument he brings on appeal.

Even if Shane’s arguments were consistent, we also cannot find that the trial court

erred in finding a change in circumstances had occurred. The trial court found in

its judgment entry that a change in circumstances had occurred “based upon the

variances in the parenting time and upon the increasing conflict between the

parents[.]” (Judgment Entry, p. 8). The trial court’s finding was supported by

Melanie’s testimony at the hearing that she and Shane did not cooperate together

and did not speak; that Shane had violated a civil protection order Melanie had

obtained against him; that the parties had disagreements concerning the children’s

medical care; that the parties had disagreements concerning who could pick up the

children from Epworth; and, that the parties had a confrontation while exchanging

the children, necessitating that exchanges take place at the police station.

Although Shane testified that the parties were able to cooperate and any conflict

was one-sided on Melanie’s part, corroborated by Harris, we reiterate that the trial

court is in the best position to observe the witnesses and weigh the credibility of

testimony. See Seasons Coal, supra. Further, the trial court found a change based

upon the variances in parenting time. Testimony was heard at the hearing that the

parties had modified parenting time multiple times due to the parties’ changing

work and school schedules. Consequently, we cannot find that the trial court erred

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in finding a change in circumstances had occurred due to increasing conflict

between the parties and variances in parenting time.

B. Children’s Best Interests

{¶41} Next, we turn to Shane’s argument that a reduction in his amount of

parenting time and the denial of his motion for shared parenting and was not in the

children’s best interests.

{¶42} In determining the best interests of the children pursuant to R.C.

3109.04(B)(1), trial courts are directed to consider all relevant factors, including

those specifically enumerated under R.C. 3109.04(F)(1), the following of which

are pertinent to the case sub judice:

(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 regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, 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;

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(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, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;

(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[;]* * *

{¶43} Additionally, in determining whether shared parenting is in the

children’s best interests, trial courts are directed to consider all relevant factors,

including the following pertinent enumerated 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;

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

{¶44} Here, although Shane claims that the parties had voluntarily been

following a shared parenting plan, Melanie testified that the parties had changed

their parenting time arrangement multiple times due to changes in their work and

school schedules; that she only offered Shane increased parenting time from

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Thursday until Monday for several months in 2009 because she was in school and

was required to offer Shane that time under the right of first refusal; and, that

when she finished school in June 2009, the parties went back to the Friday to

Monday schedule. Although Shane testified that this arrangement persisted until

he filed papers seeking shared parenting in September 2009, as stated above, the

trial court was in the best position to weigh the credibility of witness testimony.

See Seasons Coal, supra.

{¶45} Additionally, although Shane argues that the trial court erred in

finding the parties could not cooperate, Melanie testified that she and Shane did

not cooperate together and did not speak, that Shane had violated a civil protection

order she had obtained against him; that the parties had disagreements concerning

the children’s medical care; that the parties had disagreements concerning who

could pick up the children from Epworth; and, that the parties had a confrontation

while exchanging the children, necessitating that exchanges take place at the

police station. Particularly given that it was in the best position to weigh the

credibility of testimony, we cannot find that the trial court erred in finding that the

parties had little ability to cooperate. See Seasons Coal, supra.

{¶46} Next, Shane argues that there was no evidence that he suffered from

mental health issues. However, evidence was presented at the trial that the

February 2005 judgment entry of Shane’s conviction for falsification ordered him

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to “comply with any/all doctors orders regarding his treatment for bipolar

disorder.” (Feb. 2005 Judgment Entry, p. 2). Additionally, Melanie testified that

Shane’s behavior improved when he was taking medication for his bipolar

disorder. Although Shane testified that he had consulted another physician in late

2006 who took him off medication because he did not believe he had bipolar

disorder, but was depressed due to his bad marriage, we note that this is yet

another situation in which the trial court was in the best position to weigh

credibility. See Seasons Coal, supra. Further, the trial court made no finding that

Shane “suffered from mental health issues,” but merely found that “father has

previously been diagnosed with bi-polar disorder and treated for the disorder for a

period of two years. Father sought a second opinion and was diagnosed with

situational depression” (Feb. 2010 Judgment Entry, p. 6). We cannot find that the

trial court erred in making this finding, as it was supported by the evidence.

{¶47} Next, Shane argues that Melanie’s testimony about his refusal to

seek proper medical treatment for the children was not credible and that there was

no evidence the children suffered harm while in his care after the divorce.

However, Melanie presented testimony that three of the children were injured in

his care, and he refused to take them to the emergency room, but, instead, called

her to come and pick up the children to take them to the emergency room. This is

yet another issue of credibility.

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{¶48} Next, Shane contends that Melanie’s testimony that she was afraid of

him and feared for the safety of the children while in his care was not credible,

given that she voluntarily expanded his visitation in the past. However, as stated

previously, Melanie testified that she only increased Shane’s visitation because

she was in school and could not care for the children at those times, so she was

required to offer him expanded visitation under the right of first refusal because it

was required by the original divorce decree.

{¶49} Next, Shane argues that any domestic violence concerns about him

based on prior acts were known to Melanie at the time of the initial divorce

hearing and could not be heard at this hearing on the principles of res judicata.

Initially, we note that courts have held that the doctrine of res judicata should not

be strictly applied in cases involving child custody and visitation matters. Kelm v.

Kelm, 92 Ohio St.3d 223, 227, 2001-Ohio-168. Additionally, R.C.

3109.04(E)(1)(a), which governs findings of a change in circumstances, provides

that, “The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that have

arisen since the prior decree or that were unknown to the court at the time of the

prior decree, that a change has occurred in the circumstances of the child, the

child’s residential parent, or either of the parents subject to a shared parenting

decree, and that the modification is necessary to serve the best interest of the

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child.” (emphasis added). Here, the trial court in its February 2010 judgment entry

put the phrase “or that were unknown” in bold print, apparently emphasizing that

the trial court could base its findings on facts that existed prior to the previous

decree, but that were unknown to the court until the current action. Additionally,

courts have found arguments similar to Shane’s to be unpersuasive, on the basis

that the plain language of the statute indicates that the phrase “based on facts that

have arisen since the prior decree” refers to the determination of a change in

circumstances, not to the determination of the best interests of the children. Babel

v. Babel, 12th Dist. Nos. CA2005-05-104, CA2005-06-141, 2006-Ohio-4323,

¶¶24-28. Additionally, in Babel, the Twelfth Appellate District held that the

factors courts consider when determining what is in the children’s best interests

“are not limited to events occurring after a prior order, and in fact, in order to

properly assess these factors, a court must look at all events that affect the child’s

best interest.” 2006-Ohio-4323, at ¶28. We agree with the foregoing, and find

that evidence of prior domestic violence incidents was not barred by res judicata

for purposes of determining the best interests of the children.

{¶50} Finally, Shane argues that the trial court should not have eliminated

his right of first refusal, and, in the same vein, that the trial court should not have

awarded Melanie parenting time beginning at 6:00 p.m. on Sundays, because the

children would be in the custody of a third party until Melanie returned from work

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at 8:30 p.m. However, Warren’s report to the trial court recommended that the

right of first refusal be eliminated because it was not in the best interests of the

children given the history of conflict between the parties, and Melanie testified

that she did not want Shane to have the right of first refusal because she had

concerns about the children’s safety. Given that the trial court’s order was

supported by ample evidence in the record, we cannot find that the trial court

abused its discretion in eliminating Shane’s right of first refusal and ending his

parenting time at 6:00 p.m. on alternating Sundays.

{¶51} In conclusion, we reiterate that the trial court specifically found that

the children had incurred various injuries while in Shane’s care, with all but one of

the children requiring emergency room care; that Shane’s testimony about who

took the children to the emergency room was not credible; that Shane had been

convicted of domestic violence against a household member, Melanie’s son from a

prior relationship; that Shane had been convicted of violating a domestic violence

civil protection order obtained by Melanie; that the parties had adjusted their

visitation schedule over the years to accommodate their changing work schedules;

and, that Melanie asserted she allowed Shane increased parenting time while she

was attending school because she was required to under the right of first refusal,

but that she did not want Shane to have the right of first refusal because she was

worried about the children’s safety while in his care. We find that the trial court’s

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findings were well-supported by the testimony heard at trial, and that the trial

court did not err in concluding that decreasing Shane’s parenting time and denying

his motion for shared parenting was in the children’s best interests. This is

particularly so given the trial court’s broad discretion in these matters, as well as

its better position to weigh the credibility of witnesses and their testimony.

Additionally, we conclude that the trial court’s findings demonstrate it engaged in

a meaningful, independent review of the evidence and appropriate analysis of the

applicable statutory factors.

{¶52} Accordingly, we overrule Shane’s first and second assignments of

error.

{¶53} In his third assignment of error, Shane argues that the trial court

erred in imputing income to him at his prior rate of earning and increasing his

child support obligation. Specifically, Shane contends that he had been terminated

from his prior employment at Guardian due to poor sales; that he had been hired

back to Guardian as an independent contractor, but had only earned $150 and $200

in the two months since becoming an independent contractor; that he had not yet

secured employment in the insurance industry, so it was unfair to estimate that his

income would be consistent with his prior earnings; and, that the trial court should

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not have imputed income to him without first making a determination that he was

voluntarily unemployed or underemployed pursuant to R.C. 3119.01(C)(11).

{¶54} It is well-established that a trial court’s decision regarding child

support obligations will not be disturbed on appeal absent an abuse of discretion.

Dreher v. Stevens, 3d Dist. No. 4-05-20, 2006-Ohio-351, ¶19, citing Booth v.

Booth (1989), 44 Ohio St.3d 142, 144; see also Pendleton v. Pendleton, 3d Dist.

No. 5-06-38, 2007-Ohio-3834, ¶21 (a trial court has considerable discretion in

calculating child support). A trial court will be found to have abused its discretion

when its decision is contrary to law, unreasonable, not supported by the evidence,

or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-

18, citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse

of discretion standard, a reviewing court may not simply substitute its judgment

for that of the trial court. Blakemore, 5 Ohio St.3d at 219.

{¶55} R.C. 3119.79 governs modification of child support orders and

provides, in pertinent part:

If an obligor or obligee under a child support order requests that the court modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the child support order in accordance with the schedule and the applicable worksheet through the line establishing the actual annual obligation. If that amount as recalculated is more than ten per cent greater than or more than ten per cent less than the amount of child support required to be paid pursuant to the existing child support order, the deviation from the recalculated

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amount that would be required to be paid under the schedule and the applicable worksheet shall be considered by the court as a change of circumstance substantial enough to require a modification of the child support amount.

R.C. 3119.79(A). In determining the proper amount of child support to be paid,

R.C. 3119.01(C)(5) provides, in pertinent part, that:

(5) “Income” means either of the following:

(a) For a parent who is employed to full capacity, the gross income of the parent;

(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.

{¶56} A determination of “potential income” under R.C. 3119.01(C)(11),

requires the trial court to first find that the parent is voluntarily unemployed or

underemployed before it may impute income for child support calculation

purposes. See Smart v. Smart, 3d Dist. No. 17-07-10, 2008-Ohio-1996, ¶21, citing

Rock v. Cabral (1993), 67 Ohio St.3d 108.

{¶57} Here, the trial court in its judgment entry stated the following in

addressing Shane’s child support obligation, in pertinent part:

Father has recently been terminated from a salaried employment and is working on a contract basis. Father indicates that he will be starting a new career in insurance and anticipates income at his prior rate. The Court assigns his prior rate of $32,700.00 as his income.

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(Feb. 2010 Judgment Entry, p. 8). The judgment entry contained no finding that

Shane was voluntarily unemployed or underemployed, or anything insinuating the

trial court made such a finding. See O’Connor v. O’Connor, 184 Ohio App.3d

538, 2009-Ohio-5436, ¶11 (finding imputation of income permissible where the

reviewing court can glean from the record the trial court’s finding of voluntary

unemployment or underemployment, even where not explicitly stated).

Accordingly, we presume the trial court’s assigning of Shane’s previous income of

$32,700 was not based on an “imputed” income under R.C. 3119.01(C)(11), but

was instead based on Shane’s and his fiancée’s testimony that Shane had made

$27,349 in 2009; that he had been terminated from his position and rehired by his

previous employer as an independent contractor; that his income had decreased

due to his termination; that he was “getting ready to start a new job” in the

insurance industry; and, that he “expected” to make an income comparable to his

previous job in the security industry. We cannot find that this very speculative

testimony supported a finding that Shane’s gross income was $32,700. Although

the trial court may have believed Shane was voluntarily underemployed and

capable of making that amount, there is no indication in its judgment entry that the

trial court made such a finding. Consequently, we find that the trial court’s

calculation constituted an abuse of discretion.

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{¶58} Accordingly, we sustain Shane’s third assignment of error and

reverse and remand on this matter for further proceedings consistent with this

opinion.

{¶59} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued in the first and second assignments of error, but

having found error prejudicial to the appellant, in the particulars assigned and

argued in the third assignment of error, we affirm in part, and reverse in part, the

judgment of the trial court, and remand for further proceedings on the matter of

child support consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr

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