[Cite as Drees v. Drees, 2013-Ohio-5197.]




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




LINDA L. DREES,

        PLAINTIFF-APPELLANT,                              CASE NO. 10-13-04

        v.

JEFF DREES,                                               OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Mercer County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 09-DIV-020

                                      Judgment Affirmed

                          Date of Decision: November 25, 2013




APPEARANCES:

        William E. Huber for Appellant

        Thomas E. Luth for Appellee
Case No. 10-13-04


WILLAMOWSKI, J.

        {¶1} Plaintiff-appellant Linda L. Drees (“Linda” or “Appellant”) brings this

appeal from the denial of her motion to terminate a shared parenting plan by the

Court of Common Pleas of Mercer County, Ohio, Domestic Relations Division.

For the reasons discussed below, the judgment is affirmed.

        {¶2} The parties to this proceeding, Linda and Defendant-appellee Jeff

Drees (“Jeff”), were divorced on January 20, 2010. On the same date, the court

approved a shared parenting decree allocating parental rights and responsibilities

over the parties’ two minor children according to a shared parenting plan entered

into by the parties on January 13, 2010. The parties’ oldest child was emancipated

in February of 2011, terminating the plan’s obligations as to him.

        {¶3} On March 12, 2012, Linda filed a motion to terminate the shared

parenting plan on the basis that a change of circumstances occurred and such

termination is in the best interest of the remaining minor child, Jeanna. In support

of her motion, Linda contended that Jeff had not followed the shared parenting

plan and she had effectively taken “the full responsibility of raising the minor

children [sic].” (R. 41, Mot. Terminate Shared Parenting Plan, Mar. 12, 2012.)

Linda requested that “appropriate support and health insurance orders be adopted.”

(Id.)




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       {¶4} A magistrate of the trial court conducted a hearing on July 23, 2012,

during which Linda submitted evidence to support her allegations that Jeff’s

alcohol consumption and his failure to follow the shared parenting plan amounted

to a change of circumstances requiring termination of the shared parenting plan.

Subsequent to the hearing, the magistrate issued a written decision, in which she

commented, “it appears that alcohol may have been an issue at the time of the final

divorce herein,” and “[i]n any event, there has been no evidence presented as to

the change in circumstances herein on that particular issue.” (Id. at 4, ¶ 25.) The

magistrate followed with an analysis of the factors required under R.C.

3109.4(F)(1) and (2), to determine the best interest of the child and whether shared

parenting was in the child’s best interest.

       {¶5} Analyzing the factors of R.C. 3109.04(F)(1), the magistrate found that

although Linda was not fully consistent regarding her wishes as to Jeanna’s care

and her understanding of the shared parenting plan as ordered, she did not object

to the alternating parenting schedule. Likewise, Jeff desired to keep the current

shared parenting plan; he called his daughter often and was concerned about his

inability to convince Jeanna to come over for her parenting time with him. The

magistrate further found that Jeanna had a good relationship with each of her

parents, that Jeff had more of a parenting role as compared to Linda, and that he

would be more likely to honor and facilitate the court-approved parenting time


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rights. Although Linda had not continuously and willfully denied Jeff’s right to

parenting time, she had failed to encourage her daughter to visit her father,

allowing Jeanna to make too many independent decisions, which was

inappropriate for the minor child. Neither of the parents or any member of their

household had been convicted of or pleaded guilty to a criminal offense, and

neither of them was planning to establish a residence outside of the state.

       {¶6} Examining whether shared parenting was in the best interest of Jeanna

under factors prescribed in R.C. 3109.04(F)(2), the magistrate found that although

the parents did not cooperate or make decisions jointly, they did have the ability to

do so. They further had the ability to encourage the sharing of love, affection, and

contact between the child and the other parent. The parents lived close to each

other, in the same school district, and there was no evidence as to any potential for

abuse by either of them. Addressing Linda’s concerns regarding Jeff’s alcohol

consumption habits, the magistrate found that there was no indication of Jeff

acting inappropriately as a result, and no indication that his drinking had negative

consequences on the care of the minor daughter.

       {¶7} The magistrate denied Linda’s motion to terminate shared parenting

because “Plaintiff has not demonstrated a substantial change in circumstances in

the matter herein.” (R. 58, Magistrate’s Decision at 9.) Having decided that




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termination was not proper due to a lack of change in circumstances, the

magistrate did not provide her conclusion as to the best interest analysis.

       {¶8} Linda filed timely objections to the magistrate’s decision. She argued

that the magistrate did not sufficiently consider Jeff’s drinking habits in

determining the best interest of the child.     Linda specifically objected to the

magistrate’s finding that Jeff’s alcohol consumption was a circumstance that was

in existence at the time the shared parenting plan was executed. She further

objected to the magistrate’s finding that there was no change of circumstances and

that Linda, rather than Jeff, was responsible for the noncompliance with the shared

parenting plan.

       {¶9} The trial court reviewed the magistrate’s findings, the transcript of the

proceedings, as well as the exhibits admitted into evidence and, after making an

independent review of the record, concluded that the magistrate’s analysis of the

factors of R.C. 3109.04(F)(1) and (2) was appropriate and should not be modified.

The trial court further held that the evidence presented at the hearing regarding

Jeff’s drinking habits did not affect those findings. The trial court thus overruled

the objections to the magistrate’s decision, holding that although the magistrate

was incorrect in concluding that Jeff’s alcohol consumption was evidenced at the

time of the parties’ divorce, the denial of Linda’s motion was proper. The trial

court specifically found that “Linda has failed to demonstrate a substantial change


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of circumstances” and “there is no evidence that the shared parenting plan is not in

the best interest of the remaining minor child of the parties, Jeanna, and to the

extent that same can be implemented with the flexibility of the needs of the child,

the same remains in the best interests of Jeanna.” (R. 66, J. Entry at 3, Feb. 5,

2013.) Linda appeals from the trial court’s judgment and raises the following

assignments of error.

                           First Assignment of Error

      The trial court erred in concluding that there was no evidence to
      support that the drinking habits of the Defendant-Appellee were
      of such a nature that the same should be considered in whether
      the trial court should terminate the shared parenting plan.

                          Second Assignment of Error

      The trial court erred when it found that there was no substantial
      change in circumstance and therefore failed to terminate the
      shared parenting plan.

      {¶10} The magistrate and the trial court in this matter applied a two-step

procedure that is required for a modification of a prior court-approved parenting

decree by R.C. 3109.04(E)(1)(a). Under this standard, the court must first find

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.”

Wooten v. Schwaderer, 3d Dist. Union No. 14-08-13, 2008-Ohio-3221, ¶ 3,

quoting R.C. 3109.04(E)(1)(a).     Second, the court must determine that “the

modification is necessary to serve the best interest of the child.” Id. Under R.C.

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3109.04(E)(1)(a), the finding of a change of circumstances is a necessary

prerequisite to the further inquiry of whether the modification would be in the best

interest of the child. Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344,

¶ 38. R.C. 3109.04(E)(1)(a) further prescribes that “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 * * *.” Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 21.

       {¶11} We note, however, that Linda requested a termination rather than a

modification of the parenting decree.            Under the language of R.C.

3109.04(E)(2)(c), the two-step procedure outlined above is not required for a

termination of a prior final shared parenting decree that includes a jointly filed

shared parenting plan. See Brammer v. Brammer, 3d Dist. Marion No. 9-12-57,

2013-Ohio-2843, ¶ 34; Logan v. Holcomb, 3d Dist. Marion No. 9-12-61, 2013-

Ohio-2047, ¶ 31; Green v. Richards, 6th Dist. Wood No. WD-12-039, 2013-Ohio-

406, ¶ 26, fn.1 (“the trial court is not required to determine the existence of a

change of circumstances prior to the termination of a shared parenting plan.”

(Emphasis sic.)); In re K.R., 11th Dist. Trumbull No. 2010-T-0050, 2011-Ohio-

1454, ¶¶ 42-46 (affirming that “due to R.C. 3109.04(E)(2)(c), a trial court is not

required to find a change in circumstances before terminating a shared parenting




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plan,” and compiling cases from other appellate districts holding the same). In

particular, R.C. 3109.04(E)(2) states:

         (2) In addition to a modification authorized under division (E)(1) of
         this section:

         ***

         (c) The court may terminate a prior final shared parenting decree that
         includes a shared parenting plan approved under division
         (D)(1)(a)(i)1 of this section upon the request of one or both of the
         parents2 or whenever it determines that shared parenting is not in the
         best interest of the children.

         {¶12} The statute further requires that upon termination,

         the court shall proceed and issue a modified decree for the allocation
         of parental rights and responsibilities for the care of the children
         under the standards applicable under divisions (A), (B), and (C) of
         this section as if no decree for shared parenting had been granted and
         as if no request for shared parenting ever had been made.

R.C. 3109.04(E)(2)(d). This language does not require a finding of a “change in

circumstances” prior to issuing a new decree for the allocation of parental rights.

Curtis v. Curtis, 2d Dist. Montgomery No. 25211, 2012-Ohio-4855, ¶ 7, quoting

1
  This division addresses a situation where both parents jointly make the request for shared parenting in
their pleadings or jointly file the motion and also jointly file the shared parenting plan. R.C.
3109.04(D)(1)(a)(i).
2
  This language implies that a mere request by one or both of the parents is a sufficient basis for the trial
court’s termination of a prior final shared parenting decree under this division, even without the finding that
shared parenting is not in the child’s best interest. See Fisher, 2007-Ohio-5589, ¶¶ 38, 56 (Pfeifer, J.,
dissenting) (“That statute allows a court to terminate a final shared-parenting decree merely upon the
request of one or both of the parents * * *”; “* * * such a request is sufficient for termination under R.C.
3109.04(E)(2)(c).”); In re J.L.F., 8th Dist. Cuyahoga No. 97405, 2012-Ohio-1748, ¶ 4 (“R.C.
3109.04(E)(2)(c) * * * allows a court to terminate a final shared-parenting decree merely upon the request
of one or both of the parents.”); Tomaszewski v. Tomaszewski, 8th Dist. Cuyahoga No. 86976, 2006-Ohio-
3357, ¶ 10 (“Pursuant to R.C. 3109.04(E)(2)(c), a domestic relations court may terminate a shared
parenting order either upon the motion of either parent or simply whenever the court determines that shared
parenting is no longer in the best interest of the children.”).

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R.C. 3109.04(E)(2)(d) (“a change in circumstances is not required before

terminating shared parenting. * * * After termination, the court issues a modified

decree allocating parental rights ‘as if no decree for shared parenting had been

granted and as if no request for shared parenting ever had been made.’”). Neither

do divisions (A), (B), or (C), of this section require such a finding. See R.C.

3109.04. The only requirement is that the shared parenting is “not in the best

interest of the children.” R.C. 3109.04(E)(2)(c); Nolan v. Nolan, 4th Dist. Scioto

No. 11CA3444, 2012-Ohio-3736, ¶ 44 (“In deciding whether to terminate the

shared-parenting plan, ‘the trial court should have applied R.C. 3109.04(E)(2)(c)

and utilized only the “best interests” test.’”), quoting Kougher v. Kougher, 194

Ohio App.3d 703, 2011-Ohio-3411, 957 N.E.2d 835, ¶ 22 (7th Dist.).3

           {¶13} Further, we would suggest that a finding that “the modification is

necessary to serve the best interest of the child” (R.C. 3109.04(E)(1)(a)), is not

exactly the same as a finding that “shared parenting is not in the best interest of the

children” (R.C. 3109.04(E)(2)(c)). The latter impliedly contemplates that some

significant change of circumstances has occurred for the shared parenting that was

in the child’s best interest when implemented to be no longer in this child’s best

interest. See R.C. 3109.04(A)(2) and R.C. 3109.04(D) (requiring the court to




3
    But see fn. 2 above, for an alternative basis for termination.

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determine that shared parenting is in the best interest of the children prior to

approving the shared parenting plan and issuing a shared parenting order).

         {¶14} We recognize that under the Ohio Supreme Court decision in Fisher,

a trial court’s action “terminating” a shared parenting plan that effectively results

in “a modification of the designation of residential parent and legal custodian of a

child” may require a two-step analysis. Fisher, 116 Ohio St.3d 53, 2007-Ohio-

5589, 876 N.E.2d 546 at ¶ 37. In Fisher, both parents moved to become the sole

residential parent and legal custodian of their minor child and the trial court,

finding that the termination of shared parenting was proper, designated the mother

as the residential parent. Id. at ¶¶ 2-3. However, “[d]espite the trial court’s

language ‘terminating’ the parties’ shared-parenting plan, the court of appeals

reviewed the parties’ motions and the trial court’s entry and determined that the

trial court had not terminated the parties’ shared parenting plan but instead had

modified the plan.”4 Id. at ¶ 6. Therefore, the Fisher decision focused on the

issue of modification of the shared parenting plan and did not concern termination

of a plan and issuing a new decree “as if no decree for shared parenting had been

granted and as if no request for shared parenting ever had been made.” See

3109.04(E)(2)(d). Resolving the dispute regarding the appropriate standard of
4
 The Court of Appeals in Fisher noted that the parties “actually moved to be designated the sole residential
parent and legal custodian of Demetra, not to terminate the shared-parenting plan.” Fisher v. Hasenjager,
168 Ohio App.3d 321, 2006-Ohio-4190, 859 N.E.2d 1022, ¶ 24 (3d Dist.). The court of appeals further
noted that the trial court left “‘all other orders not in conflict with the [modifications it made] in full force
and effect.’ This shows that the trial court intended to keep the remaining terms of the plan in effect and
enforceable.” Id.

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review for the matter, the Supreme Court held that R.C. 3109.04(E)(1)(a) is used

for “a modification of the designation of residential parent and legal custodian of a

child.” Fisher at ¶ 37.

         {¶15} This case is distinguishable from Fisher, however, because Linda did

not ask for a modification of the designation of residential parent, but simply

requested termination of the shared parenting plan.5 Accordingly, this case does

not mandate a review under the two-step analysis, of R.C. 3109.04(E)(1)(a).

         {¶16} To summarize, when a trial court engages in a modification of

custody, rather than termination of a shared parenting decree, then the two-step

procedure of R.C. 3109.04(E)(1)(a) must be used.                            See Fisher at syllabus.

Conversely, when the court terminates shared parenting and issues a new

parenting decree pursuant to R.C. 3109.04(E)(2)(d), “as if no decree for shared

parenting had been granted and as if no request for shared parenting ever had been

made,” the standard of R.C. 3109.04(E)(2)(c) applies. See Kougher, 194 Ohio

App.3d 703, 2011-Ohio-3411, 957 N.E.2d 835 at ¶¶ 5, 18 (distinguishing Fisher

as a case that “dealt with a problem arising from a request to modify parental

rights under a shared-parenting decree rather than a motion to completely

terminate such a decree,” and applying R.C. 3109.04(E)(2)(c) to termination of the

5
  We note that although Linda’s Appellate Brief requests that she be “named the residential parent,” the
record from the trial court does not disclose similar requests. (App’t Br. at 15.) During the hearing, Linda
testified that she had no objections to her daughter spending every other week at Jeff's house and the reason
for requesting termination was her desire to have “a little extra money,” stating, “[t]he shared-parenting
isn't working for me at all.” (Tr. at 19, 25; see also R. 58, Magistrate’s Decision at 2.)

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shared parenting decree); Rogers v. Rogers, 6th Dist. Huron No. H-07-024, 2008-

Ohio-1790, ¶¶ 10, 12 (interpreting Fisher as holding that “a mere change in the

designation of the residential parent and legal custodian did not constitute a

termination of the shared parenting plan, but rather only a modification of the

plan” that requires a review under R.C. 3109.04(E)(1)(a), and terminating the

shared parenting plan based on R.C. 3109.04(E)(2)(c)); Beismann v. Beismann, 2d

Dist. Montgomery No. 22323, 2008-Ohio-984, ¶¶ 10, 13 (interpreting Fisher as

standing for a proposition that “a mere change in the designation of the residential

parent and legal custodian did not constitute a termination of the shared parenting

plan, but rather only a modification of the plan,” and affirming the application of

R.C. 3109.04(E)(2)(c) to termination of the shared parenting plan).

       {¶17} We note that Linda’s appeal fails under both standards of review,

R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(c), as they both require an analysis

of the best interest of the child that was properly conducted by the trial court. For

the same reason, we address the two assignments of error together.

       {¶18} In her first assignment of error, Linda claims that evidence of Jeff’s

drinking habits was sufficient to warrant termination of the shared parenting plan

and thus, the trial court abused its discretion by denying her motion. The trial

court did not address whether Jeff’s drinking habits if new, would constitute a

sufficient change of circumstances so as to satisfy the first prong required by R.C.


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3109.04(E)(1)(a), but it held that those habits did not affect the best interest

analysis. The second assignment of error focuses on the trial court’s failure to find

a change of circumstances due to Jeff’s non-adherence to the shared parenting

plan.    This assignment of error is moot under our finding that R.C.

3109.04(E)(2)(c) applies to this case and therefore, the finding of change was not

required. But, even under the standard of R.C. 3109.04(E)(1)(a), Linda would

have to be successful in challenging both parts of the trial court’s analysis under

the abuse of discretion standard in order to prevail in this appeal. She was not.

        {¶19} Whether terminating or modifying a shared parenting plan, the trial

court must consider the best interest of the children under the factors outlined in

R.C. 3109.04(F), “but may consider additional factors as well.” See Heiser v.

Heiser, 3d Dist. Mercer No. 10-07-02, 2007-Ohio-5487, ¶ 27; Herdman v.

Herdman, 3d Dist. Marion No. 9-08-32, 2009-Ohio-303, ¶ 6. The magistrate

addressed the statutory requirements of R.C. 3109.04(F)(1) and (2), addressing

each factor in detail and referring to specific evidence that supported her findings.

Linda argues that these findings were motivated by the magistrate’s determination

that Linda was at fault for non-enforcement of the shared parenting plan. The trial

court, however, did not refer to either party’s fault and, after reviewing the matter

independently, concluded that termination would not be in Jeanna’s best interest

and that shared parenting was in her best interest.


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       {¶20} The trial court’s determination of what is in the best interest of the

child will not be reversed absent an abuse of discretion. Errington v. Errington,

3d Dist. Wyandot No. 16-01-17, 2002-Ohio-1419. This standard requires that the

trial court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or

unconscionable,” because the trial judge is best equipped to determine and weigh

the credibility of the proffered testimony. Davis v. Flickinger, 77 Ohio St. 3d 415,

416, 418, 674 N.E.2d 1159 (1997); Blakemore v. Blakemore, 5 Ohio St. 3d 217,

219, 450 N.E.2d 1140 (1983). There is competent, credible evidence in the record

to sustain the above findings made by the magistrate while observing the witnesses

and their demeanor at the hearing. Furthermore, the evidence supports the trial

court’s determination that termination of the shared parenting plan is not necessary

to serve Jeanna’s best interest and that shared parenting continues to be in her best

interest.

       {¶21} Accordingly, under R.C. 3109.04(E)(2)(c), Linda’s motion to

terminate the prior final shared parenting plan fails because there is insufficient

evidence that “shared parenting is not in the best interest of the [child].” Further,

even under R.C. 3109.04(E)(1)(a), Linda has failed to satisfy the second prong of

the inquiry, i.e., “that the modification is necessary to serve the best interest of the

child.” Therefore, the trial court’s denial of Linda’s motion was not unreasonable,




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arbitrary, or unconscionable.    For that reason, Appellant’s first and second

assignments of error are overruled.

       {¶22} Based upon the foregoing, we hold that the trial court did not abuse

its discretion when it overruled Linda’s objections to the magistrate’s decision and

denied her Motion to Terminate Shared Parenting Plan. Having found no error

prejudicial to Appellant, in the particulars assigned and argued, we affirm the

judgment of the Court of Common Pleas of Mercer County, Domestic Relations

Division.

                                                               Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




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