Severns v. Foster, 031819 OHCA3, 9-18-21

Docket Nº:9-18-21
Opinion Judge:PRESTON, J.
Party Name:JOHN SEVERNS, PLAINTIFF-APPELLEE, v. AMBER FOSTER, DEFENDANT-APPELLANT.
Attorney:Joel M. Spitzer for Appellant. Rocky Ratliff for Appellee.
Judge Panel:ZIMMERMAN, P.J and SHAW, J, concur.
Case Date:March 18, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-909

JOHN SEVERNS, PLAINTIFF-APPELLEE,

v.

AMBER FOSTER, DEFENDANT-APPELLANT.

No. 9-18-21

Court of Appeals of Ohio, Third District, Marion

March 18, 2019

Appeal from Marion County Common Pleas Court Family Division Trial Court No. 16 PC 0105

Joel M. Spitzer for Appellant.

Rocky Ratliff for Appellee.

OPINION

PRESTON, J.

{¶1} Defendant-appellant, Amber Foster ("Foster"), appeals the May 30, 2018 judgment of the Marion County Court of Common Pleas, Family Division, designating plaintiff-appellee, John Severns ("Severns"), as residential parent and legal custodian of A.S., Foster and Severns's minor daughter. For the reasons that follow, we affirm.

{¶2} On November 16, 2015, Foster gave birth to a daughter, A.S. Foster and Severns have never married. In the months immediately following A.S.'s birth, Foster and Severns tried to work on their relationship while co-parenting A.S. (See Apr. 17, 2018 Tr. at 98-100). However, their efforts proved unsuccessful.

{¶3} On June 10, 2016, Severns filed a complaint requesting "that he be awarded custody of [A.S.] or in the alternative be awarded shared parenting." (Doc. No. 1). That same day, Severns filed a motion for ex parte temporary orders asking the trial court to designate him as A.S.'s legal custodian during the pendency of the case. (Doc. No. 2). On June 14, 2016, the trial court denied Severns's motion for ex parte temporary orders. (Doc. No. 6).

{¶4} On July 7, 2016, the trial court issued temporary orders granting Severns parenting time with A.S. for a period of four hours on Tuesdays and Thursdays and for a period of four hours every other Saturday and Sunday in accordance with Marion County Family Court Rule 32. (Doc. No. 11).

{¶5} On October 3, 2016, Foster filed a motion to establish child support. (Doc. No. 20). That same day, Foster filed a motion requesting that the trial court appoint a guardian ad litem ("GAL") to evaluate A.S.'s best interest. (Doc. No. 23). On October 20, 2016, Severns filed a response to Foster's motion to appoint a GAL in which he did not oppose Foster's motion. (Doc. No. 24). On November 1, 2016, the trial court granted Foster's motion to appoint a GAL and appointed a GAL for A.S. (Doc. No. 32).

{¶6} On October 20, 2016, Severns filed a motion for shared parenting along with a proposed shared parenting plan. (Doc. No. 26).

{¶7} On November 8, 2016, Severns filed a motion and an amended motion for holiday visitation. (Doc. Nos. 34, 37). On November 15, 2016, the trial court issued agreed temporary orders granting Severns parenting time with A.S. "pursuant to Local Rule 32a for the upcoming holidays and/or until this case is resolved." (Doc. No. 38). In addition, the trial court designated Severns as "the non-residential parent for holiday visitation purposes during the pendency of this matter." (Id.).

{¶8} On April 27, 2017, Foster filed a motion for leave to file her answer to Severns's June 10, 2016 complaint out of rule. (Doc. No. 58). On May 1, 2017, the trial court granted Foster's motion to file her answer out of rule. (Doc. No. 59). That same day, Foster filed her answer to Severns's complaint as well as a counterclaim requesting that the trial court establish child support, among other things. (Doc. No. 60).

{¶9} On May 9, 2017, Severns filed a motion to increase parenting time. (Doc. No. 61). On June 29, 2017, Severns filed a motion for new temporary orders. (Doc. No. 67). That same day, Foster filed a narrative affidavit regarding temporary orders. (Doc. No. 69). On August 15, 2017, the trial court issued agreed modified temporary orders granting Severns parenting time with A.S. on Mondays from 8:00 a.m. until 12:00 p.m., Tuesdays from 8:00 a.m. until 5:00 p.m., and on weekends in accordance with Marion County Family Court Rule 32(A). (Doc. No. 74). In addition, the trial court ordered that Foster's weekend parenting time with A.S. coincide with her weekend parenting time with A.S.'s half-sister granted in case number 15-PC-211. (See id).

{¶10} The GAL filed his final report on April 6, 2018. (Doc. No. 84).

{¶11} A final hearing was held on April 16 and 17, 2018. (See Doc. No. 93); (Apr. 16, 2018 Tr. at 1); (Apr. 17, 2018 Tr. at 1). On May 30, 2018, the trial court filed its judgment designating Severns as the residential parent of A.S. (Doc. No. 93). The trial court granted Foster parenting time with A.S. in accordance with Marion County Family Court Rule 32(A) and ordered that Foster's parenting time with A.S. coincide with Foster's parenting time with A.S.'s half-sister. (Id.). In addition, Foster was ordered to pay Severns $231.46 per month in child support. (Id.).

{¶12} Foster filed a notice of appeal on June 28, 2018. (Doc. No. 94). She raises three assignments of error, which we will address together.

Assignment of Error No. I

In support of the initial determination of parental rights and responisbilities [sic] for the minor child, the trial court erred as a matter of law and abused its discretion by determining there was sufficient evidence the parents could not make decisions jointly pursuant of Ohio Revised Code 3109.04

Assignment of Error No. II

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-apellee [sic] should be granted cusotdy[sic].

Assignment of Error No. III

In support of initial determination of parental rights and responsibilities for the minor child and pursuant of Ohio Revised Code 3109.04, the trial court erred and abused its discretion in determining that the defendant-appellant would not facilitate court ordered visitation.

{¶13} In her first, second, and third assignments of error, Foster argues that the trial court erred by designating Severns as the residential parent and legal custodian of A.S. Although unclear from her appellate brief, Foster appears to advance two arguments in support of her assignments of error. First, Foster argues that the trial court's best-interest findings under R.C. 3109.04(F)(1), specifically its findings that Severns and Foster cannot communicate and that Foster would not facilitate court-ordered visitation, are "unsubstantiated as they were based solely on a lack of credible evidence" or suspect because they are based on Severns's "self-testimony." (Appellant's Brief at 7-8). In addition, Foster argues that rather than weighing the R.C. 3109.04(F)(1) best-interest factors "as an accumulative whole, the trial judge imperceptibly and unconscionably gave prevailing weight of the measures of the statute essentially to a single factor." (Id. at 7). However, Foster does not clearly identify this determinative factor. In addition, as part of this argument, Foster contends that the trial court designated Severns as A.S.'s residential parent and legal custodian without giving proper weight to the GAL's shared-parenting recommendation. (Id. at 10).

{¶14} "'Decisions concerning child custody matters rest within the sound discretion of the trial court.'" Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). "'"Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court."'" Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. "'Accordingly, an abuse of discretion must be found in order to reverse the trial court's award of child custody.'" Id., quoting Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). "'An abuse of discretion suggests the trial court's decision is unreasonable or unconscionable.'" Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶15} Here, we observe that throughout her appellate brief, Foster incorrectly characterizes the trial court's May 30, 2018 judgment as a "modification" of an existing decree allocating Severns's and her parental rights. (E.g., Appellant's Brief at 10) ("[T]he trial judge failed to prove that the modification of the parental rights and responsibilities was necessary * * * to serve the best interests of the child[] * * *."). Rather than being a modification of an existing custody decree, the trial court's May 30, 2018...

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