[Cite as Warner v. Thomas, 2014-Ohio-3544.]




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




BENJAMIN LEE WARNER,

        PLAINTIFF-APPELLEE,                           CASE NO. 17-14-04

        v.

PENNY ANN THOMAS,                                     OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Shelby County Common Pleas Court
                                 Juvenile Division
                          Trial Court No. 2010-PAT-0001

                      Judgment Reversed and Cause Remanded

                          Date of Decision: August 18, 2014




APPEARANCES:

        John A. Poppe for Appellant

        Rob C. Wiesenmayer, II for Appellee
Case No. 17-14-04


SHAW, J.

       {¶1} Defendant-appellant, Penny Ann Thomas (“Penny”), appeals the

December 20, 2013 judgment of the Shelby County Court of Common Pleas,

Juvenile Division, finding the objections to the magistrate’s decision filed by

plaintiff-appellee, Benjamin Lee Warner (“Benjamin”) to be well-taken and

dismissing the motions to terminate the shared parenting decree filed separately by

each party. Specifically, the trial court found “in its independent review, and upon

the totality of the evidence, that a change has not occurred in the circumstances of

[the parties’ child] or her parents.” (Doc. No. 319 at 4) (emphasis sic). On this

basis, the trial court declined to adopt the magistrate’s recommendation of

terminating the parties’ shared parenting decree and designating Penny as the

child’s residential parent.

       {¶2} The parties share custody of their daughter, who was born in April of

2009. In 2010, the parties entered into a shared parenting arrangement, in which

both parties were named legal custodians of their child and a detailed visitation

schedule was established.     The shared parenting plan designated Penny as

“residential parent solely for the purpose of interpreting the Standard Order of

Parenting Time.”     (Doc. No. 17 at 3).      The trial court accepted the parties’

arrangement and issued an order approving the shared parenting plan. The shared




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parenting decree was subsequently modified by agreement of the parties and by

the trial court’s approval.

       {¶3} On March 18, 2013, Penny filed a “Motion to Terminate Shared

Parenting Plan; Motion for Custody and Child Support; Motion [for] Supervised

Parenting.” In this motion, Penny argued that the parties’ shared parenting plan

was no longer in their child’s best interests. Penny requested that the trial court

terminate the parties’ shared parenting decree, designate her as the child’s

residential parent and legal custodian, and order Benjamin to have only supervised

parenting time with their daughter.

       {¶4} On April 8, 2010, Benjamin filed “Plaintiff’s Motion to Modify

Parental Rights and Responsibilities.” In his motion, Benjamin requested that the

trial court terminate the parties’ shared parenting decree and designate him as the

residential parent and legal custodian of their child, or “in the alternative” adopt

the new shared parenting plan submitted with his motion. (Doc. No. 221).

       {¶5} On September 9, 2013, the magistrate conducted a final hearing on the

parties’ motions, where both sides presented evidence in support of their positions.

On September 27, 2013, the magistrate issued a thorough decision finding that a

change in circumstance had occurred. The magistrate also considered whether

continuing shared parenting was in the child’s best interest and concluded that “the

parties cannot cooperate and make decisions jointly and the parties cannot


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encourage the sharing of love, affection and contact. As a result, the Magistrate

believes that the Court should grant the request of each party and terminate the

Shared Parenting Plan.” (Doc. No. 305 at 3). The magistrate analyzed the factors

enumerated in R.C. 3109.04(F)(1) and determined that designating Penny as

residential parent and legal custodian was in the child’s best interest. Accordingly,

the magistrate recommended that the parties’ shared parenting decree be

terminated, that Penny be designated the child’s residential parent and legal

custodian, and that Benjamin be granted visitation in accordance with the local

rules. Benjamin subsequently filed objections to the magistrate’s decision.

          {¶6} On December 20, 2013, the trial court issued its judgment entry,

conducting its independent review of the matter. In a detailed analysis, the trial

court concluded that the record did not support the magistrate’s decision finding a

change in circumstances sufficient to warrant a modification of the shared

parenting decree.        The trial court did not address the magistrate’s

recommendations of whether continuing or terminating shared parenting was in

the child’s best interest because it determined that the “threshold matter” of

change in circumstance was not met and therefore further review was not

necessary. (Doc. No. 319 at 4). The trial court overruled and dismissed both

parties’ motions and ordered the existing shared parenting decree to remain in

effect.


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        {¶7} Penny filed this appeal, asserting the following assignment of error.

        THE TRIAL COURT DID NOT APPLY THE CORRECT
        LEGAL STANDARD TO THE CASE SUB JUDICE.

        {¶8} In her sole assignment of error, Penny argues that the trial court

erroneously applied the two-step standard for analyzing a modification of an

existing shared parenting decree which requires that a “change in circumstances”

has occurred as well as a finding that the modification is in the child’s best

interest. Penny maintains that both parties filed motions to terminate the existing

shared parenting decree which implicates a different statutory section and does not

require a showing of a “change in circumstances.”          Because Penny raises a

question of law, we apply a de novo standard of review. Goodyear Tire & Rubber

Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, ¶ 4.

        {¶9} Section 3109.04(E) of the Ohio Revised Code governs the

modification and termination of a shared parenting decree and provides in relevant

part:

        (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


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      decree, unless a modification is in the best interest of the child
      and one of the following applies:

      (i) The residential parent agrees to a change in the residential
      parent or both parents under a shared parenting decree agree to
      a change in the designation of residential parent.

      (ii) The child, with the consent of the residential parent or of
      both parents under a shared parenting decree, has been
      integrated into the family of the person seeking to become the
      residential parent.

      (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.

      ***

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

      (a) Both parents under a shared parenting decree jointly may
      modify the terms of the plan for shared parenting approved by
      the court and incorporated by it into the shared parenting
      decree. Modifications under this division may be made at any
      time. The modifications to the plan shall be filed jointly by both
      parents with the court, and the court shall include them in the
      plan, unless they are not in the best interest of the children. If
      the modifications are not in the best interests of the children, the
      court, in its discretion, may reject the modifications or make
      modifications to the proposed modifications or the plan that are
      in the best interest of the children. * * *.

      (b) The court may modify the terms of the plan for shared
      parenting approved by the court and incorporated by it into the
      shared parenting decree upon its own motion at any time if the
      court determines that the modifications are in the best interest of
      the children or upon the request of one or both of the parents
      under the decree. Modifications under this division may be made
      at any time. The court shall not make any modification to the

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        plan under this division, unless the modification is in the best
        interest of the children.

        (c) The court may terminate a prior final shared parenting
        decree 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. If
        modification of the terms of the plan for shared parenting
        approved by the court and incorporated by it into the final
        shared parenting decree is attempted under division (E)(2)(a) of
        this section and the court rejects the modifications, it may
        terminate the final shared parenting decree if it determines that
        shared parenting is not in the best interest of the children.

        (d) Upon the termination of a prior final shared parenting
        decree under division (E)(2)(c) of this section, 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). In a recent opinion, Drees v. Drees, 3d Dist. No. 10-13-04,

2013-Ohio-5197, this Court thoroughly analyzed the different legal standards for a

modification and a termination of a shared parenting decree and succinctly noted

that:

        [W]hen 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. Conversely,

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       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.

Drees at ¶ 16. As stated above, R.C. 3109.04(E)(2)(c) permits a trial court to

terminate a share parenting decree upon determining “that shared parenting is not

in the best interest of the children.”

       {¶10} In the case sub judice, the record reflects that both parties filed

motions to terminate the shared parenting decree. In its decision, the magistrate

conducted the two-step analysis under R.C. 3109.04(E)(1)(a) and found a change

in circumstance existed, however as previously discussed such a determination

was unnecessary.      Nevertheless, the magistrate ultimately found that shared

parenting was not in the child’s best interest and applied the appropriate standard

under R.C. 3109.04(E)(2)(c) in recommending the existing shared parenting

decree be terminated. The magistrate also recommended that Penny be designated

residential parent and legal custodian of the parties’ child and that Benjamin be

given local rule visitation, which would require the issuance of a new parental

decree pursuant to R.C. 3109.04(E)(2)(d) upon the termination of the existing

shared parenting decree.

       {¶11} When the trial court conducted its independent review of the

magistrate’s decision, it noted that the parties each filed motions to terminate the


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shared parenting decree.        However, in a footnote the trial court mistakenly

characterizes Benjamin’s motion as follows:          “Plaintiff’s motion seeks the

termination of the September 2, 2010 plan and the request to approve a new shared

parenting plan.” (Doc. No. 319 at 2) (emphasis sic). The record establishes that

Benjamin’s motion stated as follows: “Plaintiff/Father requests that this Court

terminate the parties’ shared parenting plan, and name Plaintiff/Father the

residential parent and legal custodian of said child, or in the alternative, that this

Court adopt Plaintiff/Father’s Shared Parenting Plan of Father as permanent

orders of this Court.” (Doc. No. 221) (emphasis sic).

       {¶12} Notwithstanding this fact, the trial court proceeded to analyze the

case under the legal standard for modification of a shared parenting decree. The

trial court then declined to adopt the magistrate’s decision based upon its

determination that the record did not support a “change in circumstance” finding

without addressing the appropriate legal standard of whether continuing shared

parenting is the child’s best interest. The trial court also stated the following

orders in its judgment entry:

       [Penny’s] motion to modify the shared parenting decree is
       OVERULED and DISMISSED;

       [Benjamin’s] motion to modify the shared parenting decree (and
       related relief) is OVERRULED and DISMISSED.

(Doc. No. 319 at 4).


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         {¶13} Contrary to the trial court’s characterization of the parties’ motions

above, the record clearly indicates that the parties requested termination of the

existing shared parenting decree and that the magistrate recommended the same.

We note that R.C. 3109.04(E)(2)(c) does not explicitly require a best interest

determination when the trial court merely continues the implementation of a

shared parenting decree. Nevertheless, when a trial court is reviewing a

magistrate’s specific recommendation to terminate a shared parenting decree, we

believe a best interest analysis is more consistent with the intent of R.C.

3109.04(E)(2)(c) and is the better practice, even if the trial court ultimately

declines to adopt the recommendation. Accordingly, we have no choice but to

conclude that the trial court erred when it failed to apply the appropriate legal

standard for termination and when it failed to conduct an inquiry regarding

whether continuing or terminating shared parenting is in the best interest of the

child.

         {¶14} We note that both the magistrate and the trial court relied on the

Supreme Court of Ohio’s decision in Fisher v. Hasenjager, 116 Ohio St.3d 53,

2007-Ohio-5589 in applying the two-step analysis of R.C. 3109.04(E)(1)(a) to this

case. However, as we discussed in Drees, Fisher is inapplicable to this case

because the Court in Fisher addressed a modification of the designation of




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residential parent and not a termination of an existing shared parenting decree.

See Drees at ¶¶ 14-16.

       {¶15} For all these reasons, the assignment of error is sustained, the

judgment of the trial court is reversed and the cause is remanded to the trial court

to address whether shared parenting is in the best interest of the parties’ child.

                                                             Judgment Reversed and
                                                                  Cause Remanded

ROGERS and PRESTON, J.J., concur.

/jlr




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