[Cite as Barton v. Barton, 2015-Ohio-5194.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


LORI BARTON                                   :   JUDGES:
                                              :
                                              :   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellant                    :   Hon. Patricia A. Delaney, J.
                                              :   Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :   Case No. 15-CA-13
                                              :
WESLEY BARTON                                 :
                                              :
                                              :
       Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County Court
                                                  of Common Pleas, Domestic Relations
                                                  Division, Case No. 12 DR 417



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           December 9, 2015




APPEARANCES:

For Plaintiff-Appellant:                          For Defendant-Appellee:

JAMES R. KINGSLEY                                 DAVID L. ROWLAND
157 West Main Street                              10705 Snyder Church Rd.
Circleville, OH 43113                             Baltimore, OH 43105
Fairfield County, Case No. 15-CA-13                                                   2

Delaney, J.

      {¶1} Plaintiff-Appellant Lori Barton appeals the February 23, 2015 judgment

entries of the Fairfield County Court of Common Pleas, Domestic Relations Division.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} Plaintiff-Appellant Lori Barton (“Mother”) and Defendant-Appellee Wesley

Barton (“Father”) were married on June 18, 2005. One child was born as issue of the

marriage: L.B., born on March 4, 2008.

      {¶3} In March 2012, Father moved out of the marital home. Mother remains in

the marital home. Mother filed a complaint for legal separation with children on August

21, 2012. Mother requested the trial court name her as residential parent and legal

custodian of L.B. On October 16, 2012, Father filed an answer and counterclaim for

divorce. Mother and Father filed motions for temporary orders.

      {¶4} On October 18, 2012, the magistrate issued temporary orders naming

Father as the residential parent and legal custodian of L.B. Mother was granted

parenting time in accordance with Fairfield County Local Rule 17.

      {¶5} Mother filed a motion to modify temporary orders on November 20, 2012.

She requested the trial court name her as residential parent and legal custodian. A

hearing was held before the magistrate on January 28, 2013. On January 29, 2013, the

trial court denied Mother’s motion to modify the temporary orders.

      {¶6} Mother filed an amended complaint for divorce on May 13, 2013. Mother

also filed a proposed shared parenting plan that designated her as the school

placement parent, child support obligee, would cause Father to notify Mother prior to

scheduling any medical appointments, and called for parenting time to be by agreement
Fairfield County, Case No. 15-CA-13                                                       3


or in the alternative for her to have the majority of parenting time. Father did not file a

proposed shared parenting plan.

       {¶7} A trial on Mother’s amended complaint and Father’s counterclaim for

divorce was held before the magistrate on September 20, 2013. The focus of this

appeal is the trial court’s award of custody to Father. At trial, the following evidence was

adduced as to the custody of L.B.

       {¶8} Since September 2009, Father has been employed as the chief of police

of Lithopolis, Ohio. His hours of employment are from 7:00 a.m. to 3:00 p.m., Monday

through Friday. Mother is employed with UPS. Mother works Monday through Friday,

from 2:00 a.m. to 8:00 a.m.

       {¶9} When L.B. was approximately two years old, L.B. was enrolled in a

church-operated preschool for a few hours, one day a week. Father felt L.B. was not

receiving the appropriate level of socialization and removed her from the church

preschool. In 2012, L.B. was approximately three years old when Father enrolled L.B.

into a private childcare facility named Sunnyside Childcare. Father was responsible for

the tuition. Sunnyside provides childcare and educational programs for infants, toddlers,

and preschool-aged children. L.B. attended preschool at Sunnyside from 7:00 a.m. until

12:15 p.m. on Mondays, Tuesdays, Wednesdays, and Fridays.

       {¶10} Father testified he was concerned with L.B.’s mental development. She

appeared to him to be delayed in her speech development and social skills when

compared to her peers. He was very concerned L.B. had autism. Father had L.B. tested

for hearing problems, allergies, and heart issues to rule out medical causes for her

developmental delays. L.B. suffered from five ear infections within a six-month period.
Fairfield County, Case No. 15-CA-13                                                    4


Her family physician did not recommend getting tubes placed in her ears, but Father

took L.B. to a pediatric ENT for a second opinion. Mother acknowledged that L.B. had

speech delays, but felt L.B. would outgrow them because she herself had outgrown

childhood speech delays. She testified she felt Father was taking L.B. to the doctor too

often.

         {¶11} After approximately one year with Sunnyside, Mother enrolled L.B. into the

afternoon preschool program at Walnut Elementary in the Teays Valley Local School

District, Fairfield County, Ohio. Walnut Elementary was close to Mother’s home. L.B.

was evaluated between August 2012 and October 2012 by the Teays Valley Local

School District. In a report dated October 5, 2012, it was determined through a multi-

disciplinary evaluation that L.B. was developmentally delayed and had deficits in her

fine motor skills, receptive, expressive, social communication, and social skills. The

school recommended L.B. be enrolled in a special needs classroom to interact with

adults and peers and to have speech/language therapy and occupational therapy. L.B.

was given an individualized education program (“IEP”) to meet her educational needs.

Mother and Father both participated in the evaluation.

         {¶12} When Father left the marital home, Father moved into a two-bedroom

apartment in Groveport, Franklin County, Ohio. On October 18, 2012, the magistrate

issued temporary orders naming Father as the residential parent and legal custodian of

L.B. Father was informed by the Teays Valley Local School District that because Father

was named the residential parent, L.B. could no longer attend Walnut Elementary

because Father resided outside of the school district. Father enrolled L.B. in the

preschool program at Sedalia Elementary in the Groveport Madison Local School
Fairfield County, Case No. 15-CA-13                                                    5


District, Franklin County, Ohio. Sedalia Elementary was not as close to Mother’s home.

L.B. receives speech and occupational therapy at Sedalia Elementary based on her

IEP. Mother testified L.B. expressed that she missed her friends at Walnut Elementary.

Mother also testified Teays Valley Local School District was a higher-rated school

district that Groveport Madison Local School District. Father felt Sedalia Elementary did

a better job with L.B.’s IEP than Walnut Elementary.

      {¶13} Father requested L.B. be evaluated by Nationwide Children’s Hospital. On

September 9, 2013, L.B. received a diagnostic assessment that noted L.B. was

developmentally delayed and had language and fine motor delays and self-stimulating

behaviors. It was recommended that L.B. be assessed by a developmental pediatrician,

psychologist, and speech pathologist. After the September 20, 2013 trial, Father

submitted to the trial court the assessment by the Child Development Center of

Nationwide Children’s Hospital. The report found L.B.’s symptoms were consistent with

Mixed Expressive/Receptive Disorder and motor coordination deficits, and a lack of

appropriate social skills. The results of the testing were not consistent with Autism

Spectrum Disorder.

      {¶14} At the time of the hearing and while L.B. was enrolled in Sunnyside

Childcare and Sedalia Elementary, the parents’ schedule was as follows. Father

brought L.B. to Sunnyside Childcare at 7:00 a.m. Mother picked up L.B. from Sunnyside

around 12:15 p.m. and drove her to Sedalia Elementary for afternoon preschool. Father

picked up L.B. from Sedalia Elementary. Father had custody of L.B. from Sunday at

6:00 p.m. to Wednesday at 3:30 p.m. On Wednesdays, Mother had custody of L.B. from
Fairfield County, Case No. 15-CA-13                                                  6


3:30 p.m. to Thursday at 3:30 p.m. Mother had custody of L.B. from Friday at 11:30 a.m.

to Sunday.

      {¶15} The magistrate had a hearing on June 11, 2014 based on Mother’s motion

filed January 29, 2014.

      {¶16} On June 24, 2014, the magistrate granted the parties’ divorce. The

magistrate named Father as the residential parent and legal custodian of L.B. After

reviewing the factors under R.C. 3109.04, the magistrate determined the shared

parenting plan submitted by Mother was not in the best interests of L.B. The magistrate

found Father was more motivated than Mother to work with the medical and educational

professionals to help L.B. with her developmental delays.

      {¶17} Mother filed objections to the magistrate’s decision on July 2, 2014 and

September 24, 2014.

      {¶18} On February 23, 2015, the trial court overruled Mother’s objections. The

trial court issued the Final Decree of Divorce on February 23, 2015. It is from this

judgment Mother now appeals.

                             ASSIGNMENTS OF ERROR

      {¶19} Mother raises seven Assignments of Error:

      {¶20} “I. DID THE TRIAL JUDGE COMMIT PREJUDICIAL ERROR BY FAILING

TO MAKE A PROPER, DE NOVO, INDEPENDENT REVIEW OF THE MAGISTRATE’S

DECISION?

      {¶21} “II. DID THE DELAY OF NINE MONTHS BY THE MAGISTRATE TO

ISSUE HER DECISION AND THE DELAY OF FOUR MONTHS BY THE JUDGE TO

RULE ON OBJECTIONS (17 MONTHS TOTAL ALLOWING FOR TRANSCRIPT AND
Fairfield County, Case No. 15-CA-13                                                     7


BRIEFING – 30 MONTHS FROM FILING TO FAO) DENY PLAINTIFF HER

CONSTITUTIONAL RIGHT TO DUE PROCESS TO REDRESS AND FOR INJURY

UNDER THE OHIO CONSTITUTION?

        {¶22} “III.   WAS   IT   PREJUDICIAL     ERROR      NOT    TO    RECUSE      THE

MAGISTRATE FOR BIAS?

        {¶23} “IV. WAS IT PREJUDICIAL ERROR TO CONSIDER POST-FILING

EVIDENCE TO DECIDE CUSTODY?

        {¶24} “V. WAS IT PREJUDICIAL ERROR TO AWARD CUSTODY OF [L.B.],

D.O.B. 3/4/08 TO FATHER AND TO REFUSE TO ACCEPT MOTHER’S SHARED

PARENTING PLAN?

        {¶25} “VI.    WAS   IT   PREJUDICIAL      ERROR      TO   ORDER      STANDARD

VISITATION INSTEAD OF SPECIFIC VISITATION IN ACCORDANCE WITH

UNDISPUTED PAST PRACTICE?

        {¶26} “VII. WAS IT PREJUDICIAL ERROR TO PLACE THE CHILD IN

DAYCARE WHEN MOTHER WAS AVAILABLE AND CLAIMED THE RIGHT TO FIRST

SIT?”

                                       ANALYSIS

                        I. Independent Review of the Trial Court

        {¶27} Mother argues in her first Assignment of Error that the trial failed to make

an independent, do novo review of the magistrate’s decision. We disagree.

        {¶28} Civ. R. 53(D)(4)(d) provides that in ruling on objections to a magistrate's

decision, the court shall undertake an independent review as to the objected matters to

ascertain that the magistrate has properly determined the factual issues and
Fairfield County, Case No. 15-CA-13                                                      8

appropriately applied the law. Williams v. Tumblin, 5th Dist. Coshocton No.

2014CA0013, 2014-Ohio-4365, ¶ 35. “A presumption of regularity attaches to all judicial

proceedings.” State v. Raber, 134 Ohio St.3d 350, 2012–Ohio–5636, 982 N.E.2d 684, ¶

19. Appellate courts thus presume that a trial court conducted an independent analysis

in reviewing a magistrate's decision in accordance with Civ.R. 53(D)(4)(d) and the party

claiming that the trial court did not do so bears the burden of rebutting the presumption.

Faulks v. Flynn, 4th Dist. Scioto App. No. 13CA3568, 2014–Ohio–1610, ¶ 27. This

burden requires more than a mere inference, and simply because a trial court adopted a

magistrate's decision does not mean that the court failed to exercise independent

judgment. Id.

       {¶29} The trial court overruled Mother’s objections to the magistrate’s decision

on February 23, 2015. In its judgment entry, the trial court states that pursuant to Civ.R.

53(D)(4)(d), the court shall undertake an independent review of the objected matters to

ascertain whether the magistrate has properly determine the factual issues and

appropriately applied the law. The trial court noted the transcripts of the hearings held

before the magistrate were filed with the court for the purposes of the non-oral hearing

on Mother’s objections to the magistrate’s decision.

       {¶30} Mother’s argument that the trial court failed to exercise independent

judgment rests on the fact that the court failed to specifically address all of her

arguments in support of her objections to the magistrate’s decision. The trial court's

failure to agree with Mother or to specifically discuss every factor weighing into the

decision does not rebut the presumption that the trial court conducted an independent
Fairfield County, Case No. 15-CA-13                                                       9

analysis in accordance with Civ. R. 53(D)(4)(d). Williams v. Tumblin, 2014-Ohio-4365, ¶

37.

       {¶31} Mother’s first Assignment of Error is overruled.

                           II. Date of Trial Court’s Judgment

       {¶32} Mother argues in her second Assignment of Error that the timing of the

trial court’s judgment entry denied Mother her constitutional right of due process.

       {¶33} Mother originally filed the action on August 21, 2012. L.B. was four years

old. The matter went to trial on September 20, 2013. The magistrate issued her decision

on June 24, 2014. The trial court overruled Mother’s objections to the magistrate’s

decision and issued the final decree of divorce on February 23, 2015. At the time of this

appeal, L.B. is approximately seven years old and is attending full-day elementary

school.

       {¶34} Mother argues the untimeliness of the trial court violated her constitutional

right of due process. She argues because of the delay in rendering its judgment, the

trial court’s decision is no longer applicable to L.B. because of the child’s growth and

maturation.

       {¶35} This Court has previously addressed the challenge of rendering an

opinion in a custody case based on the passage of time between the inception of a case

and the final order. See Mitchell v. Manders, 5th Dist. Morrow No. 14CA0011, 2015-

Ohio-1529, ¶ 71 (at the time of the trial court’s full hearing, the child was in first grade

and by the appellate decision, the child was 11 years old and in the fourth grade). The

Court is tasked with reviewing the facts in evidence and determining whether there was

competent and credible evidence to support the trial court’s decision on custody.
Fairfield County, Case No. 15-CA-13                                                        10


       {¶36} In this case, the trial court determined it was in the best interests of the

child that Father be named the residential parent and legal custodian. The trial court’s

decision was based primarily on L.B.’s documented developmental delays and the

differences between the parents’ ability and desire to meet the needs of L.B.’s

developmental delays. While time has passed between the full hearing, the trial court’s

final order, and this appeal, the basis of the trial court’s determination of custody is still

ripe for our review.

       {¶37} Mother’s second Assignment of Error is overruled.

                                    III. Magistrate Bias

       {¶38} Mother contends in her third Assignment of Error that the magistrate

assigned to hear the matter was biased; therefore, the magistrate should have recused

herself from the case.

       {¶39} At the January 28, 2013 hearing on Mother’s motion to modify temporary

orders, the magistrate stated her child was special needs and she understood the IEP

process. It was Mother’s argument at the trial court level that Father was unnecessarily

taking L.B. to numerous doctors to search for a diagnosis to explain L.B.’s

developmental delays. Mother argues that because of the magistrate’s personal history,

the magistrate was biased towards Father.

       {¶40} Mother does not dispute that she did not raise this issue before the trial

court through a motion to disqualify. She states the issue was only discovered upon a

review of the January 28, 2013 transcript in preparation of her objections to the

magistrate’s decision. She raised the argument in support of her objection to the

magistrate’s decision as to custody.
Fairfield County, Case No. 15-CA-13                                                     11


       {¶41} The proper method to challenge a magistrate's impartiality is to file a

motion for disqualification with the trial court. Lingenfelter v. Lingenfelter, 9th Dist.

Wayne No. 14AP0005, 2015-Ohio-4002, -- N.E.3d --, ¶ 10. Civ.R. 53(D)(6) specifically

provides that, “[d]isqualification of a magistrate for bias or other cause is within the

discretion of the court and may be sought by motion filed with the court.”

       {¶42} There was no motion before the trial court to disqualify the magistrate for

bias. When Mother discovered the alleged bias of the magistrate, Mother did not file a

motion to disqualify or raise the issue as a separate objection to the magistrate’s

decision. As such, we find the matter to be waived.

       {¶43} Mother’s third Assignment of Error is overruled.

                                IV. Post-Trial Evidence

       {¶44} Mother argues in her fourth Assignment of Error that it was prejudicial

error for the trial court to consider evidence filed after the final hearing in order to

determine custody.

       {¶45} On January 29, 2014, Mother filed a post-hearing motion. In response to

Mother’s post-hearing motion, Father submitted the results of the Interdisciplinary

Assessment Results conducted by Nationwide Children’s Hospital along with other

evaluations conducted to determine L.B.’s developmental status. Mother argues it was

prejudicial error for the trial court to consider such evidence submitted after the full

hearing.

       {¶46} A review of the transcript of the June 11, 2014 hearing before the

magistrate shows that Mother took the opposite position and requested the magistrate

take judicial notice of the report from Nationwide Children’s Hospital. (June 11, 2014 Tr.,
Fairfield County, Case No. 15-CA-13                                                    12


p. 73). Counsel stated, “we’re going to ask that you take – either mark as an exhibit or

take judicial notice of the Children’s report that came in late * * * and consider that as

part of the case.” Id. The magistrate agreed that it was part of the record. Id.

       {¶47} Accordingly, we overrule Mother’s fourth Assignment of Error.

                              V. Best Interests of the Child

       {¶48} Mother argues the trial court abused its discretion when it rejected

Mother’s proposed shared parenting plan and awarded custody of L.B. to Father. We

disagree.

       {¶49} In any divorce proceeding, the court shall “allocate the parental rights and

responsibilities for the care of the minor children of the marriage.” R.C. 3109.04(A). In

this case, Mother filed a proposed shared parenting plan pursuant to R.C. 3109.04(G). If

at least one parent files a pleading or motion in accordance with R.C. 3109.04(G) and a

plan for shared parenting, the trial court must determine whether the plan for shared

parenting is in the best interest of the child. R.C. 3109.04. The approval of a shared

parenting plan is discretionary with the court. R.C. 3109.04. If the court does not

determine that any filed shared parenting plan is in the best interest of the child, the

court shall not approve any plan. R.C. 3109.04.

       {¶50} R.C. 3109.04(F)(1) sets forth the following factors for the court to consider

when determining the best interests of a child in allocating parental rights:

       (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
Fairfield County, Case No. 15-CA-13                                                    13


      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 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; * * *;

      (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.

      {¶51} Custody issues are some of the most difficult decisions a trial judge must

make. When reviewing a ruling pertaining to the allocation of parental rights, the trial

court is to be afforded great deference. Tipton v. Tipton, 5th Dist. Fairfield No. 13-CA-
Fairfield County, Case No. 15-CA-13                                                   14

19, 2013-Ohio-4901, ¶ 19 citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846

(1988). Thus, we will not reverse a child custody decision that is supported by a

substantial amount of competent, credible evidence absent an abuse of discretion.

Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.

      {¶52} In the magistrate’s decision, the magistrate reviewed in detail each factor

under R.C. 3109.04(F) to determine the best interest of the child. L.B. was too young at

the time of the full hearing to interview. A guardian ad litem was not appointed in this

case. The evidence in this case supports the trial court’s conclusion that Mother loves

L.B. and wants the best for her, but Father was more motivated to address L.B.’s

medical and educational needs to help L.B. with her documented developmental delays.

      {¶53} We find the trial court did not abuse its discretion in finding the proposed

shared parenting plan submitted by Mother was not in the best interest of L.B.

      {¶54} Mother’s fifth Assignment of Error is overruled.

                    VI. Local Rule 17 Parenting Time with Mother

      {¶55} The trial court ordered that Mother would have parenting time of not less

than Fairfield County Local Rule 17, as well as such other times as the parties agree.

Once L.B. started kindergarten, the Wednesday overnight would be contingent upon

Mother transporting L.B. to school on Thursday. In the summer, Mother would have the

child while Father was working, except for those times L.B. was in Sunnyside Childcare

or a similar program, or when Father worked in the evening. Mother was responsible for

transportation from Sunnyside to her home.

      {¶56} Mother argues the trial court should have ordered parenting time based on

past practices of the parties, which was in evidence, rather than on Local Rule 17.
Fairfield County, Case No. 15-CA-13                                                       15


       {¶57} A review of the trial court’s final decree of divorce shows that it provided

for adjustment of the parenting time by agreement of the parties. The testimony of

Mother and Father shows that they adjusted parenting time based on agreement.

Further, the testimony of the parties as to parenting time was substantially similar to the

schedule outlined in the final decree.

       {¶58} Mother’s sixth Assignment of Error is overruled.

                                         VII. Daycare

       {¶59} Mother argues in her seventh Assignment of Error that it was error to allow

Father to place L.B. in Sunnyside Childcare when Mother was available to watch L.B.

       {¶60} The parties have noted that at the time of this appeal, L.B. is currently

attending full-day kindergarten. Mother argues L.B. should not be enrolled in Sunnyside

Childcare during the summer.

       {¶61} Mother cites to In re Schwendeman, 4th Dist. Washington Nos. 05CA18,

05CA25, 2006-Ohio-636, in support of her contention that daycare is an unreasonable

situation. The court stated, “[w]hile it may be desirable for a child to spend that time with

family members rather than in daycare, we cannot find that the trial court abused its

discretion in declining to find that Father's need to utilize daycare services rendered him

unsuitable to parent Baylee. Indeed, if Father's employment and resulting need for

daycare services rendered him unsuitable, virtually every working parent would be

unsuitable to care for their own children when compared with an unemployed or retired

grandparent seeking custody. As the Davis and Troxel courts noted, the state cannot

infringe on a parent's fundamental right to make child rearing decisions simply because
Fairfield County, Case No. 15-CA-13                                                     16

a ‘better’ decision could be made. Davis at ¶ 15, citing Troxel, 570 U.S. at 72–73.” Id. at

¶ 59.

        {¶62} There is no dispute that Nationwide Children’s Hospital diagnosed L.B.

with Mixed Expressive/Receptive Disorder, motor coordination deficits, and a lack of

appropriate social skills. It was recommended that L.B. be given opportunities to

socialize with her peers and receive speech and occupational therapy. Father enrolled

L.B. in Sunnyside Childcare because it provided socialization for L.B. in a preschool

setting. Based on L.B.’s diagnosis, we find no abuse of discretion for the trial court to

order that in the summer, Mother would have the child while Father was working, except

for those times L.B. was in Sunnyside Childcare or a similar program, or when Father

worked in the evening.

        {¶63} Mother’s seventh Assignment of Error is overruled.
Fairfield County, Case No. 15-CA-13                                           17


                                   CONCLUSION

       {¶64} Mother’s seven Assignments of Error are overruled.

       {¶65} The judgment of the Fairfield County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Baldwin, J., concur.
