Asbanyoli v. Haddadin

• Docket Number: 23AP-163
• Decision Date: 18 January 2024
• Citation: 2024 Ohio 170
• Parties: Fadi S. Asbanyoli, Plaintiff-Appellant, v. Jennifer Haddadin, Defendant-Appellee.
• Court: Ohio Court of Appeals

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2024-Ohio-170

Fadi S. Asbanyoli, Plaintiff-Appellant,
v.
Jennifer Haddadin, Defendant-Appellee.

No. 23AP-163

Court of Appeals of Ohio, Tenth District

January 18, 2024

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations C.P.C. No. 19DR-0707

On brief:

Harry Lewis Co., LPA, and Gregg R. Lewis for appellant.

Law Office of Jefferson Liston, LLC, and Jefferson E. Liston for appellee.

DECISION

MENTEL, P.J.

{¶ 1} Plaintiff-appellant, Fadi S. Asbanyoli, appeals from a February 16, 2023 judgment entry and decree of divorce. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 28, 2019, appellant filed a complaint against defendant-appellee, Jennifer Haddadin, for divorce citing incompatibility and alleged gross neglect of duty. On April 19, 2019, appellee, filed her answer and counterclaim against appellant for divorce alleging incompatibility and gross neglect of duty. Both parties requested, among other things, to be named residential and legal custodian of the minor children. Appellant and appellee filed motions for temporary orders without oral hearing on February 28, 2019 and April 19, 2019, respectively. In the motions, appellant and appellee each sought to be

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named the temporary residential and legal custodian of the minor children. On June 3, 2019, the trial court appointed a guardian ad litem ("GAL") to represent the children's interests. On July 12, 2019, the GAL submitted his first report and recommended that both parties have temporary residential and legal custody of the minor children. On July 29, 2019, the magistrate in the case issued temporary orders that both parties be designated the legal and residential custodians of the minor children, and both parents be named as school placement parents as long as they resided in Upper Arlington School District. The magistrate also determined appellant to be the child support obligor and ordered child support payments at that time. On February 18, 2020, a mediation outcome notice was filed with the court, which indicated that the parties had failed to reach an agreement in this matter.

{¶ 3} On March 29, 2021, the GAL submitted his second interim report and recommendation to the court. The GAL recommended that both parties continue as the temporary residential and legal custodians of the minor children and that appellant's parenting time be modified. On May 12, 2021, the magistrate issued an amended temporary order, which in relevant part, modified the parenting time pursuant to the GAL's recommendation. On October 10, 2022, the GAL submitted his final report and recommendation. The GAL recommended the parties have shared parenting and whichever parent resided in the Upper Arlington School District be designated the school placement parent. The report also provided additional recommendations as to enrollment in extracurricular activities, counseling for the parents, methods of communication between the parents, and a proposed shared parenting plan.

{¶ 4} After a series of continuances, the matter was set for trial on October 17, 2022 and continued through October 26, 2022. Relevant to the instant appeal, the following evidence was adduced at trial.

{¶ 5} The parties were married on August 19, 2012 in Chicago, Illinois. There is no dispute that the parties were bona fide residents of the state of Ohio for six months and resided in Franklin County, Ohio for 90 days prior to the filing of appellant's complaint for divorce. During the marriage, the parents had three children: S.A. (d.o.b. 4/21/2014); A.A.

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(d.o.b. 7/6/2017); and E.A. (d.o.b. 7/6/2017). The parties have lived apart without cohabitation since March 5, 2019.

{¶ 6} Appellant has completed high school and earns an annual income of $32,760 from the care of his mother through Hilliard Home Care LLC. Appellee holds a bachelor's and master's degree in public health. During the course of the marriage, appellee became a stay-at-home mother. Appellee is now employed at Tzagournis Family and Cosmetic Dentistry and has an annual income of $26,520. There is no dispute that the parties hold no marital debts or assets that need to be divided.

{¶ 7} On February 16, 2023, the trial court issued its judgment entry and decree of divorce in this matter. The parties were determined incompatible and entitled to a divorce from one another. The parties were to keep their full interest in any pension, IRA 401(K), or financial accounts in his or her individual name. The parties have divided their household goods and personal property, and do not own any real estate. Relevant to the instant appeal, the trial court designated appellee as the sole legal custodian and residential parent of the minor children. The trial court further held that appellant was to pay $490.37 as a monthly child support obligation. In reaching this determination, the trial court, after consideration of the applicable deviation factors, declined to reduce appellant's child support payment.

{¶ 8} Appellant filed a timely appeal.

II. ASSIGNMENTS OF ERROR

{¶ 9} Appellant assigns the following as trial court error:

[I.] THE COURT ABUSED ITS DISCRETION WHEN IT DESIGNATED DEFENDANT - APPELLEE THE SOLE LEGAL CUSTODIAN AND RESIDENTIAL PARENT OF THE PARTIES MINOR CHILDREN

[II.] THE COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER A DEVIATION TO THE CHILD SUPPORT ORDER WHEN IT ORDERED PLAINTIFF - APPELLANT TO PAY CHILD SUPPORT IN THE AMOUT (sic.) OF $490.37.

(Sic passim.)

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III. LEGAL ANALYSIS

A. Appellant's First Assignment of Error

{¶ 10} We begin by reviewing the trial court's determination of appellee as the sole legal custodian and residential parent of the minor children.

{¶ 11} This court reviews the trial court's finding of legal custody and residential parent for an abuse of discretion. Myers v. Wade, 10th Dist. No. 16AP-667, 2017-Ohio-8833, ¶ 15, citing Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). A trial court's judgment is deemed an abuse of discretion when it is unreasonable, arbitrary, or unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342, ¶ 12. When reviewing an assignment of error for an abuse of discretion, an appellate court may not merely substitute its judgment for that of the trial court. Mayer v. Mayer, 10th Dist. No. 21AP-3, 2022-Ohio-533, ¶ 16, citing Havens v. Havens, 10th Dist. No. 11AP-708, 2012-Ohio-2867, ¶ 6, citing Holcomb v. Holcomb, 44 Ohio St.3d 128 (1989). An appellate court should not independently reweigh the evidence. Mayer at ¶ 16, citing Lopez-Ruiz v. Botta, 10th Dist. No. 11AP-577, 2012-Ohio-718, ¶ 13, citing Miller at 71. However, even under an abuse of discretion standard, no court is permitted to commit an error of law. (Further citation omitted.) Badescu v. Badescu, 10th Dist. No. 18AP-947, 2020-Ohio-4312, ¶ 9. Accordingly, a court abuses its discretion when its decision is based on an error of law. Id.

{¶ 12} Appellant does not dispute that the trial court reviewed the statutory factors concerning custody and parental rights. (Appellant's Brief at 16; Reply Brief at 6.) Appellant contends that throughout the pendency of this case, the parties have both been designated as the legal custodian and residential parent of the minor children. Appellant argues that the trial court erred, therefore, when it deviated from the prior temporary orders. (Appellant's Brief at 15.)

{¶ 13} R.C. 3109.04 authorizes the trial court to allocate the parental rights and responsibilities for the care of a minor child. R.C. 3109.04(F)(1) directs:

(F)(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and

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responsibilities, the court shall consider all relevant factors, including, but not limited to:

(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;

(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 or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of

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