[Cite as Taylor v. Taylor, 2012-Ohio-4097.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

MARY RUTH TAYLOR                                      C.A. No.       11CA010071

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RAYMOND MICHAEL TAYLOR                                COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   06DU066628

                                 DECISION AND JOURNAL ENTRY

Dated: September 10, 2012



        BELFANCE, Judge.

        {¶1}      Raymond Taylor appeals from the final decree of divorce designating Mary Ruth

Taylor the residential parent of their daughter. For the reasons set forth below, we affirm.

                                                I.

        {¶2}      Mr. Taylor and Ms. Taylor married in 1995 and had one child together: K.R.T. In

2006, Ms. Taylor filed for divorce. During the pendency of the matter, the parties entered into a

shared parenting plan where the parties alternated physical possession of the child daily from

Monday through Thursday and alternated the weekends. Mr. Taylor and Ms. Taylor proved

unable to communicate effectively about K.R.T. K.R.T. disliked changing homes every day and

ultimately her grades declined precipitously.        Ms. Taylor moved to terminate the shared

parenting plan and sought custody of K.R.T. Mr. Taylor opposed any modification to the shared

parenting plan.
                                                 2


       {¶3}    After Ms. Taylor moved to terminate the shared parenting plan, the trial court

issued what purported to be the final divorce decree.          Taylor v. Taylor, 9th Dist. No.

10CA009790, 2010-Ohio-5794, ¶ 3. However, the decree expressly provided that the matter of

the shared parenting plan would be resolved at a later date. Id. Following an in camera

interview with K.R.T. and a hearing, the trial court terminated the shared parenting plan,

awarded custody to Ms. Taylor, and granted Mr. Taylor companionship time every other

weekend.

       {¶4}    Mr. Taylor attempted to appeal, but this Court dismissed the appeal for lack of a

final, appealable order. Id. at ¶ 7-9. On August 26, 2011, the trial court issued a final decree of

divorce that incorporated the journal entry awarding custody to Ms. Taylor.1 Mr. Taylor again

appealed, raising three assignments of error for our review. For ease of discussion, we have

rearranged and consolidated his assignments of error.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT FOUND A CHANGE IN
       CIRCUMSTANCES OCCURRED BASED UPON THE EVIDENCE IN THIS
       CASE IN LIGHT OF ITS PREVIOUS FINDING THAT NO CHANGE OF
       CIRCUMSTANCES OCCURRED.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT TERMINATED THE SHARED
       PARENTING PLAN BASED UPON CONSIDERATIONS THAT OCCURRED
       PRIOR TO AND WERE CONTEMPLATED AT THE TIME OF THE
       DIVORCE DECREE.




1
 The trial court subsequently entered another journal entry declaring the divorce decree to be a
nunc pro tunc. However, the August 26, 2011 entry could not be a nunc pro tunc because it
modified a substantial right rather than seeking to correct a clerical error.
                                                 3


       {¶5}    In Mr. Taylor’s first and third assignments of error, he argues that the trial court

erred when it found a change of circumstances. Mr. Taylor’s arguments necessarily presume that

the trial court’s decision on Ms. Taylor’s motion to modify the shared parenting plan occurred

subsequent to the final decree of divorce; however, this is not the case.

       {¶6}    Until the trial court issued its August 26, 2011 entry, no final decree of divorce

existed. Therefore, the trial court’s custody determination had to be based upon “considerations

that occurred prior to * * * the divorce decree.” Furthermore, R.C. 3109.04(E) requires that a

change of circumstances have occurred before the trial court can “modify a prior decree

allocating parental rights and responsibilities * * *.”      Generally, the requirements of R.C.

3109.04 apply to “a final appealable order, not an interlocutory, temporary order.” See State ex

rel. Thompson v. Spon, 83 Ohio St.3d 551, 554 (1998). Because there was no final decree of

divorce, the original shared parenting agreement was actually a temporary order, and, therefore,

the trial court was not required to find a change of circumstances prior to allocating parental

rights and responsibilities. See id. Although the trial court’s determination was unnecessary, its

error was harmless because it could have proceeded to determine the allocation of parental rights

and responsibilities without analyzing whether there had been a change in circumstances.

       {¶7}    Accordingly, Mr. Taylor’s first and third assignments of error are overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S FINDING THAT IT WAS IN THE BEST INTEREST
       OF THE CHILD TO GRANT SOLE CUSTODY TO THE MOTHER WAS AN
       ABUSE OF DISCRETION.

       {¶8}    In his second assignment of error, Mr. Taylor does not argue that the trial court

should have ordered shared parenting; rather, he argues that the trial court should have
                                                4


designated him as the sole residential parent and legal custodian of K.R.T. rather than Ms.

Taylor. We disagree.

       {¶9}    “When making the allocation of the parental rights and responsibilities for the

care of the children under this section in an original proceeding * * * the court shall take into

account that which would be in the best interest of the children.” R.C. 3109.04(B)(1). “[F]or a

reviewing court to overturn a trial court’s determination of custody, the appellate court must find

that the trial court abused its discretion.” Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). An

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

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

       {¶10} R.C. 3109.04(F)(1) sets forth factors for the trial court to consider when

determining the best interest of the child:

       (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
                                                 5


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

        (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;

        (j) Whether either parent has established a residence, or is planning to establish a
        residence, outside this state.

However, while the trial court must consider these factors, R.C. 3109.04(F)(1) is not an

exclusive list.

        {¶11} In the trial court’s journal entry awarding Ms. Taylor custody of K.R.T., the trial

court considered the R.C. 3109.04(F)(1) factors. The trial court noted that both parents wanted

custody of K.R.T. See R.C. 3109.04(F)(1)(a). According to the trial court, K.R.T. requested that

she have a more standard visitation schedule with her father. See R.C. 3109.04(F)(1)(b). The

court found K.R.T.’s relationships with both parents to be problematic, noting that Ms. Taylor

“continues to accommodate and enable” K.R.T.’s immaturity while Mr. Taylor “goes to an

extreme[]” in his attempts to treat K.R.T. as someone who is about to enter high school. See

R.C. 3109.04(F)(1)(c). However, the court also found that Ms. Taylor had a more loving

relationship with K.R.T. while Mr. Taylor had a more age-appropriate relationship with her. See

id.
                                                6


       {¶12} The trial court noted that Mr. Taylor, Ms. Taylor, and K.R.T. wanted K.R.T. to

remain in her current school district. See R.C. 3109.04(F)(1)(d). The court found that Mr.

Taylor and Ms. Taylor were mentally and physically fit but again noted that K.R.T. was

immature for her age. See R.C. 3109.04(F)(1)(e). The court asserted that it did not believe R.C.

3109.04(F)(1)(f) to be relevant to its determination, although it noted that Mr. Taylor had

allowed Ms. Taylor additional time with K.R.T. on two occasions and that Ms. Taylor had

refused to give Mr. Taylor additional time the two times he had asked, telling him that she and

K.R.T. already had plans. The court found that R.C. 3109.04(F)(1)(g) and (h) were not relevant

to its determination of custody because neither parent had been required to pay child support and

there was no evidence of abuse or neglect. The court also found that there was no evidence that

either parent had continuously and willfully interfered with the other parent’s companionship

time or that either parent was planning to move out of Ohio. See R.C. 3109.04(F)(1)(i)-(j).

       {¶13} Upon a review of the record, we cannot say that the trial court abused its

discretion when it determined that Ms. Taylor should be the residential parent and legal

custodian of K.R.T. While Mr. Taylor is correct that the factors do not weigh heavily in favor of

Ms. Taylor, they do not weigh heavily in his favor either. It is important to keep in mind that the

parties had attempted a shared-parenting plan and that the trial court found the arrangement to

have been proven to be unworkable due to the complete disintegration of communication

between Mr. Taylor and Ms. Taylor. K.R.T. also expressed strong dislike of the companionship

arrangement contained in the shared-parenting plan to the court, especially the fact that she was

forced to alternate between her parents’ homes every school night. Furthermore, during the term

of the shared-parenting plan, K.R.T. began having trouble in school. She failed to complete

assignments and her grades declined precipitously as her class-ranking fell from 91st to 117th.
                                                  7


In making the custody determination, it appears that the trial court relied upon K.R.T.’s

expressed desire to have more standard companionship time with Mr. Taylor, implicitly wishing

to live with Ms. Taylor. The trial court was cognizant that K.R.T. was nearly 14-years-old at the

time and was about to enter high school where she would have greater demands on her schedule.

       {¶14} Mr. Taylor argues that, since all the parties agree that K.R.T. should remain in her

current school district, he is the logical choice to have custody because he lives in the district and

Ms. Taylor does not. However, Ms. Taylor testified that she would be able to keep K.R.T. in the

system through open enrollment.

       {¶15} Mr. Taylor also suggests that it was inappropriate to grant custody to Ms. Taylor

because she already infringes upon his companionship time with K.R.T. by texting her quite

often when she is at his house. On the other hand, Mr. Taylor has disrupted Ms. Taylor’s time

with K.R.T. by requesting police go to her house to check on K.R.T. late at night on two separate

occasions. He also requested the police oversee a transfer of K.R.T. on Easter morning after Ms.

Taylor was 10 minutes late because she and K.R.T. had been at Easter Mass. Mr. Taylor’s

behavior led the trial court to believe that he was misusing his position as a sheriff deputy to

harass Ms. Taylor.

       {¶16} Under the circumstances, we cannot conclude the trial court’s decision to award

Ms. Taylor custody was unreasonable, unconscionable, or arbitrary. Accordingly, his second

assignment of error is overruled.

                                               III.

       {¶17} Mr. Taylor’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                                 Judgment affirmed.
                                                 8




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

JAMES N. TAYLOR, Attorney at Law, for Appellee.
