[Cite as Toler v. Toler, 2011-Ohio-3510.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

PATRICK V. TOLER                            :
                                                   :     Appellate Case No. 10-CA-69
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 05-DS-1200
v.                                                 :
                                                   :
HOLLY N. TOLER (nka RAKES)                         :     (Civil Appeal from Common Pleas
                                                   :     (Court, Domestic Relations)
        Defendant-Appellant                 :
                                                   :
                                                ...........

                                                OPINION

                                Rendered on the 15th day of July, 2011.

                                                ...........

KEITH R. KEARNEY, Atty. Reg. #0003191, 2160 Kettering Tower, Dayton, Ohio 45423
     Attorney for Plaintiff-Appellee

DAVID M. McNAMEE, Atty. Reg. #0068582, 42 Woodcroft Trial, Suite D, Dayton, Ohio
45430
      Attorney for Defendant-Appellant

                                                        .............

FAIN, J.

        {¶ 1} Defendant-appellant Holly Toler, now known as Holly Rakes, appeals from an

order of the Clark County Court of Common Pleas, Domestic Relations Division, denying her

motion to terminate a shared parenting plan she had participated in with her ex-husband,
                                                                                                2


plaintiff-appellant Patrick Toler. Rakes contends that the trial court erred by requiring her to

demonstrate a substantial change of circumstances in addition to demonstrating that

termination of the plan is in the best interest of the children. She further contends that the

trial court’s decision is not supported by the evidence.

       {¶ 2} We conclude that even though the trial court erred by considering the issue of

whether there had been a substantial change in circumstances, that error was harmless in view

of the fact that the trial court also found that termination of the shared parenting plan would

not be in the children’s best interest, which finding is supported by competent, credible

evidence. Accordingly, the judgment of the trial court is Affirmed.



                                                I

       {¶ 3} The parties were married on March 16, 1996. They have four minor children as

a result of their union. The parties were granted a dissolution of their marriage by order of

March 7, 2006. Of relevance hereto, the dissolution included a shared parenting agreement

designating Rakes as the primary residential parent while permitting “open and liberal

parenting time between the parties.” Toler was required to pay child support and to maintain

health insurance for the benefit of the children.

       {¶ 4} In 2008, Rakes moved to terminate the shared parenting plan. The guardian ad

litem recommended that the shared parenting be terminated. After a hearing on the motion,

held in May 2010, the trial court denied the motion to terminate the shared parenting plan,

finding that Rakes had failed to demonstrate a change of circumstances, and further finding

that terminating the shared parenting plan would not be in the best interest of the children.
                                                                                             3


        {¶ 5} Rakes appeals from the order denying her motion to terminate the shared

parenting plan.



                                               II

        {¶ 6} The First and Second Assignments of Error state as follows:

        {¶ 7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FOUND THAT THE SECOND DISTRICT COURT OF APPEALS MISSTATED AND

THEN MISAPPLIED THE DECISION OF THE SUPREME COURT OF OHIO IN FISHER

V. HASENJAGER (2007), 116 OHIO ST.3D 53.

        {¶ 8} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FAILED TO TERMINATE THE EXISTING SHARED PARENTING AGREEMENT AND

NAME APPELLANT THE SOLE RESIDENTIAL PARENT AS RECOMMENDED BY

THE [GUARDIAN AD LITEM] BECAUSE IT USED THE INCORRECT STANDARD OF

REVIEW AND FOUND THAT THE OHIO SUPREME COURT’S HOLDING MEANT

THAT THE TRIAL COURT HAD TO FIRST FIND A CHANGE OF CIRCUMSTANCES

BEFORE IMPLEMENTING THE ‘BEST INTEREST TEST.’ ”

        {¶ 9} Rakes contends that the trial court erred when it decided, as a preliminary matter,

that she was required to demonstrate a substantial change in the parties’ circumstances, in

addition to demonstrating that termination of the shared parenting plan would be in the best

interest of the children.

        {¶ 10} Termination of a shared parenting plan is governed by R.C. 3109.04(E)(2)(c),

which provides as follows: “The court may terminate a prior final shared parenting decree
                                                                                               4


that includes a shared parenting plan approved under division (D)(1)(a)(I) of this section upon

the request of one or both of the parents or whenever it determines that shared parenting is not

in the best interest of the children. The court may terminate a prior final shared parenting

decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of

this section if it determines, upon its own motion or upon the request of one or both parents,

that shared parenting is not in the best interest of the children.”

        {¶ 11} This court has held that “[t]his section of the statute only requires that the court

find that it is in the best interests of the minor child to terminate the shared parenting plan.”

Beismann v. Beismann, Montgomery App. No. 22323, 2008-Ohio-984, ¶ 8. “Significantly,

nothing in R.C. 3109.04(E)(2)(c) requires the trial court to find a change in circumstances in

order to terminate a shared parenting agreement.” Id., citing Goetze v. Goetze (March 27,

1998), Montgomery App. No. 16491.

        {¶ 12} The trial court in this case indicated in a preliminary decision and entry that it

disagreed with our holding in Beismann. The trial court interpreted the decision of the

Supreme Court of Ohio in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, as

requiring both a finding of changed circumstances and a finding of best interests before

termination of a shared parenting order. Our decision in Beismann was not only subsequent

to Fisher v. Hasenjager, it cited Hasenjager.

        {¶ 13} Although it is not essential to our disposition of this appeal, we must take this

occasion to remind the trial court that while it is perfectly free to disagree with prior holdings

of this court, it is nevertheless required to follow them. “ * * * [A] court’s decision made

after argument on a question of law necessary to the determination of a case is binding
                                                                                                                                    5


precedent in lower courts where the same issue is in controversy.” State v. McKinney (1992),

80 Ohio App.3d 470, 475. “A trial court has the obligation of following the decisions of the

reviewing courts on questions of law pertinent to a case in the process of trial.” Driscoll v.

Block (1965), 3 Ohio App.2d 351, 366.

         {¶ 14} Of course, if there has been an intervening change in the law, as a result of a

constitutional amendment, the enactment of a statute, a subsequent decision of the Supreme

Court of Ohio, the United States Supreme Court, or this court, that might render a prior

decision of this court no longer binding. But Fisher v. Hasenjager, upon which the trial court

relied in this case, preceded our decision in Beismann v. Beismann, which referred to Fisher v.

Hasenjager. Thus, in deciding that a finding of a substantial change in circumstances is not

required to terminate a shared parenting agreement, we necessarily concluded that our decision

was not inconsistent with the holding in Fisher v. Hasenjager. The trial court was free to

disagree with us in that regard, but it was not free to fail to follow our holding.

         {¶ 15} Subsequently, in its decision denying the motion to terminate the shared

parenting order, the trial court found that Rakes had failed to demonstrate a change in

circumstances sufficient to warrant a termination of the shared parenting plan. The trial court

then went on to also determine that termination of the shared parenting plan was not in the

best interest of the children.

         {¶ 16} Thus, although the trial court’s consideration of whether there was a change in

circumstances was erroneous under our holding in Beismann,1 we conclude that this error was


           1
           Because the best-interest test is an independent ground in this case to deny the motion to terminate shared parenting, we find it
 unnecessary to consider, in this case, whether Beismann v. Beismann, 2008-Ohio-984, should be overruled.
                                                                                                6


harmless, since the trial court also found, after considering the best interest factors set forth in

R.C. 3019.04(F), that a termination was not in the best interest of the children, which was a

sufficient, independent basis for denying the motion to terminate.

       {¶ 17} We now turn to the question of whether the evidence in the record supports the

trial court’s findings regarding the best interest of the children. A trial court enjoys broad

discretion in custody matters.       Beismann v. Beismann, Montgomery App. No. 22323,

2008-Ohio-984, ¶ 20. Therefore, a reviewing court will not disturb a trial court’s findings

and decisions child custody cases absent an abuse of discretion. Id. The term “abuse of

discretion” implies that the trial court’s decision was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶ 18} R.C. 3109.04(F), which sets forth the factors for analyzing a question of the

best interests of a child, provides in relevant part as follows:

       {¶ 19} “(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 responsibilities, the court shall consider all

relevant factors, including, but not limited to:

       {¶ 20} “(a) The wishes of the child's parents regarding the child's care;

       {¶ 21} “(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;

       {¶ 22} “(c) The child's interaction and interrelationship with the child's parents,
                                                                                              7


siblings, and any other person who may significantly affect the child's best interest;

       {¶ 23} “(d) The child's adjustment to the child's home, school, and community;

       {¶ 24} “(e) The mental and physical health of all persons involved in the situation;

       {¶ 25} “(f) The parent more likely to honor and facilitate court-approved parenting

time rights or visitation and companionship rights;

       {¶ 26} “(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;

       {¶ 27} “(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 either parent

previously has been convicted of or pleaded guilty to any 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 and caused physical harm to the victim in the commission of

the offense; and whether there is reason to believe that either parent has acted in a manner
                                                                                               8


resulting in a child being an abused child or a neglected child;

        {¶ 28} “(I) Whether the residential parent or one of the parents subject to a shared

parenting decree has continuously and willfully denied the other parent's right to parenting

time in accordance with an order of the court;

        {¶ 29} “(j) Whether either parent has established a residence, or is planning to

establish a residence, outside this state.

        {¶ 30} “(2) ln determining whether shared parenting is in the best interest of the

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

enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the

Revised Code, and all of the following factors:

        {¶ 31} “(a) The ability of the parents to cooperate and make decisions jointly, with

respect to the children;

        {¶ 32} “(b) The ability of each parent to encourage the sharing of love, affection, and

contact between the child and the other parent;

        {¶ 33} “(c) Any history of, or potential for, child abuse, spouse abuse, other domestic

violence, or parental kidnapping by either parent;

        {¶ 34} “(d) The geographic proximity of the parents to each other, as the proximity

relates to the practical considerations of shared parenting;

        {¶ 35} “(e) The recommendation of the guardian ad litem of the child, if the child has

a guardian ad litem.”

        {¶ 36} At the hearing, Rakes testified that she and Toler had difficulty communicating

regarding issues such as daycare, holiday visitation, health insurance coverage, medical
                                                                                            9


treatment, homework and uncovered medical expenses. Toler acknowledged some of the

problems, but indicated that the parties were doing a better job of communicating in the recent

past. Indeed, the record shows that the parties had reached an agreement on parenting time

and modification of health insurance coverage.

       {¶ 37} After reviewing the evidence, the trial court found that “the parties hereto do

have the ability to cooperate and make decisions jointly with respect to their children.” The

trial court further found that Rakes’s claims regarding daycare, uncovered medical expenses,

medical treatments or homework were not “nearly as significant of a controversy between the

parties as she suggests.” The trial court found that both parties have a “very close and loving

relationship” with the children and that both have done an “overall good job.” The trial court

noted that the children “are very well adjusted to their home, school and community, which in

this Court’s opinion somewhat substantiates the effectiveness of the existing shared parenting

plan.” While the Guardian Ad Litem recommended terminating the shared parenting, the trial

court noted that the GAL report had been filed eight months prior to the hearing and that the

GAL did not have the benefit of hearing the evidence presented at the hearing.

       {¶ 38} The trial court found no evidence to suggest any mental or physical health

problems that would impact the shared parenting plan. The trial court stated that both parties

are likely to honor and facilitate parenting rights or visitation and that there was no evidence

either party had wilfully denied the other parent parenting rights. The court noted that Toler

had been regular and timely in making his child support payments, and had indeed overpaid.

Neither parent had been convicted of any criminal offense involving a child. The trial court

found that neither parent appeared to intend to move out of state.
                                                                                             10


       {¶ 39} It appears from the transcript that the parties did have a period of time where

they experienced some small difficulties getting along, but that the trial court is correct in its

assessment that those issues were minor. We conclude that the trial court’s findings are

supported by competent, credible evidence and that it did not abuse its discretion in finding

that the best interest of the children was being met by the shared parenting plan.

       {¶ 40} The First and Second Assignments of Error are overruled.

                                               III

       {¶ 41} Bot of Rakes’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.



                                                     .............

DONOVAN and HALL, JJ, concur.



Copies mailed to:

Keith R. Kearney
David M. McNamee
Hon. Thomas J. Capper
