[Cite as Collier v. Collier, 2018-Ohio-3596.]




              IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  HARRISON COUNTY

                          RESHAM COLLIER NKA MENNINGER,

                                           Plaintiff-Appellant,

                                                       v.

                                       PAUL R. COLLIER, JR.,

                                          Defendant-Appellee.


                         OPINION AND JUDGMENT ENTRY
                                          Case No. 17 HA 0010.


                                      Civil Appeal from the
                         Court of Common Pleas of Harrison County, Ohio
                                    Case No. DRA-2012-0024

                                         BEFORE:
                  Gene Donofrio, Carol Ann Robb, Kathleen Bartlett, Judges.


                                           JUDGMENT:
                        Affirmed in Part. Reversed and Remanded in Part.


Atty. Dan Guinn, Guinn Law Firm, LLC, P.O. Box 804, New Philadelphia, Ohio 44663,
for Plaintiff-Appellant, and
Atty. David Vukelic, 500 Market Street, Suite 10, Steubenville, Ohio 43952, for
Defendant-Appellee.

                                                     Dated:
                                                September 5, 2018
                                                                                      –2–



Donofrio, J.

       {¶1}    Plaintiff-appellant, Resham Menninger (f.k.a. Collier), appeals from a
Harrison County Common Pleas Court judgment granting additional parenting time to
defendant-appellee, Paul Collier, with the parties’ daughter and modifying appellee’s
child support order.
       {¶2}    The parties were married on September 22, 2005, and divorced on
January 2, 2013. During the marriage, the parties adopted two children who are now
emancipated. A third child was born as issue of their marriage. At issue in this case is
the custody of their youngest child S.C. (born August 2006).
       {¶3}    In the divorce decree, appellant was named S.C.’s residential parent.
Appellee was to have visitation every other weekend and Mondays after school. In the
years following the divorce, the parties filed numerous motions for contempt and on
other matters against each other.
       {¶4}    On August 6, 2014, appellee filed a motion for reallocation of parental
rights and responsibilities seeking custody of S.C. and of the parties’ middle child (T.C.)
in addition to a motion for contempt. The parties eventually reached an agreement,
which the court adopted on November 17, 2015. Per the agreed entry, appellee was
granted custody of T.C. and appellant was to retain custody of S.C. Appellee was to
have the standard order of visitation with S.C.
       {¶5}    On March 29, 2017, appellee filed another motion for a reallocation of
parental rights and responsibilities seeking custody of S.C. In his motion, appellee also
requested “any other relief the court deems just and equitable.”
       {¶6}    Appellant filed a motion for attorney fees. She pointed out that the parties
were in court less than two years prior when appellee filed his first motion for a change
in custody. She claimed that nothing had changed since appellee’s prior motion was
resolved by an agreed judgment entry. Therefore, she asserted that appellee’s motion
was frivolous.
       {¶7}    The trial court appointed a guardian ad litem (GAL) for S.C. and set the
matter for an evidentiary hearing. At the hearing, the court heard testimony from both
parties, the GAL, and two of S.C.’s siblings. It also interviewed S.C. in chambers.



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       {¶8}   The court denied appellant’s motion for attorney’s fees. In so doing, it
found appellee had grounds for his motion due to changes in circumstances since his
2015 motion. It noted that S.C. had reached adolescence and was able to clearly
articulate her desire to reside with appellee. It further noted that appellant had married
a convicted violent offender who was now a permanent member of her household.
       {¶9}   But the trial court found insufficient evidence to reallocate parental rights
and responsibilities. It found that S.C. was succeeding and her needs were being met
with appellant as her residential parent. Nonetheless, the court found it was appropriate
to modify visitation. In making this finding, the court noted that S.C. had expressed her
desire to spend more time with appellee. It also found that in the past, appellant has
arbitrarily disregarded appellee’s parenting rights. And the court found that the standard
order of visitation was not adequate in light of the animosity and lack of cooperation
between the parties. Therefore, the trial court ordered that appellee is to have visitation
with S.C. every other week from Sunday at 6:00 p.m. until the following Sunday at 6:00
p.m., in other words, a week-on/week-off visitation schedule.
       {¶10} Additionally, in light of the new visitation schedule, the court modified
appellee’s child support obligation to a “zero order.”
       {¶11} Appellant filed a timely notice of appeal on November 22, 2017. She now
raises three assignments of error.
       {¶12} Appellant’s first assignment of error states:

              THE TRIAL COURT ERRED IN AWARDING THE FATHER
       ADDITIONAL PARENTING TIME SINCE HE FILED A MOTION FOR
       CUSTODY AND NO CHANGE IN CIRCUMSTANCES WAS FOUND.

       {¶13} Appellant argues the trial court erred in granting appellee additional
parenting time because he filed a motion for a change in custody and did not file a
motion for increased visitation.      She points out that there was no change in
circumstances, which is a prerequisite for a change in custody. Appellant goes on to
argue at length why the evidence did not demonstrate a change in circumstances. She
spends some time explaining that even though her husband has a criminal record,




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appellee was aware of this fact for some time and it did not constitute a change in
circumstances.
       {¶14} Appellant further argues that appellee never asked the court to increase
his parenting time. Thus, she claims the trial court lacked the authority to do so.
       {¶15} Moreover, even if the court did have the authority to make such a change,
appellant contends that the increase in appellee’s visitation is not in S.C.’s best interest.
She asserts the evidence was that appellee does what S.C. wants and provides her
with more fun while she is the parent who ensures that S.C. does chores, goes to
school, and eats properly.
       {¶16} We review a trial court's decision to modify visitation for abuse of
discretion. Braatz v. Braatz, 85 Ohio St.3d 40, 44, 706 N.E.2d 1218 (1999). Abuse of
discretion connotes more than an error of law or judgment; it implies that the trial court's
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
       {¶17} First, we note that appellant spends a considerable amount of time
arguing that the evidence did not demonstrate a change in circumstances.              But a
change in circumstances is only a prerequisite for a change in custody.                 R.C.
3109.04(E)(1)(a). It is not a prerequisite for modifying a visitation schedule. Braatz, 85
Ohio St.3d at 45. Therefore, it is irrelevant as to this assignment of error whether the
evidence demonstrated a change in circumstances.
       {¶18} Next, we must address appellant’s argument that appellee only asked for
a change in custody, not a modification of visitation. While appellee’s motion certainly
sought a change in custody, appellee also requested “any other relief the court deems
just and equitable.” This request for relief can be construed as including a request for
an increase in visitation in the event the trial court did not grant the requested change in
custody.
       {¶19} Modification of visitation rights is governed by R.C. 3109.051. Braatz, 85
Ohio St.3d at 44-45. A trial court must consider the factors listed in R.C. 3109.051(D)
and has the discretion to then determine whether or not a modification in visitation is in
the best interest of the child. Id. at 45.
       {¶20} The R.C. 3109.051(D) factors are:



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              (1) The prior interaction and interrelationships of the child with the
      child's parents, siblings, and other persons related by consanguinity or
      affinity * * *;

              (2) The geographical location of the residence of each parent and
      the distance between those residences * * *;

              (3) The child's and parents' available time, including, but not limited
      to, each parent's employment schedule, the child's school schedule, and
      the child's and the parents' holiday and vacation schedule;

              (4) The age of the child;

              (5) The child's adjustment to home, school, and community;

              (6) If the court has interviewed the child in chambers, pursuant to
      division (C) of this section, regarding the wishes and concerns of the child
      as to parenting time by the parent who is not the residential parent * * * or
      as to other parenting time or visitation matters, the wishes and concerns of
      the child, as expressed to the court;

              (7) The health and safety of the child;

              (8) The amount of time that will be available for the child to spend
      with siblings;

              (9) The mental and physical health of all parties;

              (10) Each parent's willingness to reschedule missed parenting time
      and to facilitate the other parent's parenting time rights, and with respect
      to a person who requested companionship or visitation, the willingness of
      that person to reschedule missed visitation;

              (11) In relation to parenting time, whether either parent previously
      has been [convicted of or pleaded guilty to any criminal offense involving
      an abused child or a neglected child or perpetrated abuse or neglect];



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                 (12) [Deals only with non-parents] * * *;

                 (13) 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;

                 (14) Whether either parent has established a residence or is
        planning to establish a residence outside this state;

                 (15) [Deals only with non-parents] * * *;

                 (16) Any other factor in the best interest of the child.

        {¶21} In rendering its decision, the trial court addressed many of the applicable
factors as follow. The court interviewed S.C. in chambers and found that she wished to
reside with appellee (R.C. 3109.051(D)(6)). S.C. is 12 years old (R.C. 3109.051(D)(4)).
Both homes provide adequate space and sustenance for S.C. (R.C. 3109.051(D)(7)).
There are no issues of neglect, abuse, or mistreatment at either parent’s home (R.C.
3109.051(D)(11)).        Appellee is more likely to follow visitation schedules and
communicate with appellant (R.C. 3109.051(D)(10)). Appellant is more likely to make
independent parenting decisions without input from appellee and is more likely not to
follow the court’s order (R.C. 3109.051(D)(10)). In the past, appellant has arbitrarily
disregarded appellee’s parenting rights (R.C. 3109.051(D)(13)). Appellant has strict
rules      and   schedules     concerning     hygiene,     academics,       and   chores   (R.C.
3109.051(D)(16)). Appellee is more relaxed and not as regimented in his discipline
(R.C. 3109.051(D)(16)). Appellant has a new spouse with a felony criminal record of
violence (R.C. 3109.051(D)(16)). S.C. does not express fear or apprehension about
appellant’s spouse (R.C. 3109.051(D)(16)).
        {¶22} Thus, the trial court carefully considered the applicable best interest
factors.      The court’s consideration of these factors, which support its decision,
demonstrate that the court did not abuse its discretion in deciding to increase appellee’s
visitation.
        {¶23} Accordingly, appellant’s first assignment of error is without merit and is
overruled.


Case No. 17 HA 0010
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       {¶24} Appellant’s second assignment of error states:

              THE TRIAL COURT ERRED IN FAILING TO AWARD ATTORNEY
       FEES TO THE MOTHER.

       {¶25} Here appellant contends the trial court should have awarded her attorney
fees because she claims appellee’s motion was frivolous.        She points out that the
parties agreed on November 17, 2015, after appellee filed a motion for a change in
custody, that she would continue to be S.C.’s custodial parent and appellee would have
parenting time in accordance with the standard order of visitation. Yet appellee filed
another motion a year and a half later again alleging that S.C. wanted to live with him.
Appellant claims it was not right for appellee to wait a year and then file another motion
raising the same allegations.
       {¶26} A trial court has broad discretion to determine whether to award attorney
fees as a sanction under R.C. 2323.51. State ex rel. Striker v. Cline, 130 Ohio St.3d
214, 2011-Ohio-5350, 957 N.E.2d 19.
       {¶27} R.C. 2323.51 governs the award of attorney fees and costs for frivolous
conduct. It allows for an award of attorney fees incurred by a party who was subjected
to frivolous conduct. R.C. 2323.51(B)(1). “Frivolous conduct” includes conduct of a
party to a civil action that “obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another improper purpose, including,
but not limited to, causing unnecessary delay or a needless increase in the cost of
litigation.” R.C. 2323.51(A)(2)(a)(i).
       {¶28} In denying appellant’s motion for attorney’s fees, the trial court found that
appellee had grounds to file his motion. Specifically, the court found that S.C. had now
reached adolescence and was able to clearly articulate her desire to reside with
appellee. Moreover, the court found that appellant had now married a convicted violent
offender, making him a permanent member of her household. The court found that
these two changes of circumstances constituted reasonable grounds for appellee to file
his motion.
       {¶29} The trial court did not abuse its discretion in determining not to award
attorney fees to appellant. The court cited two significant changes that had occurred



Case No. 17 HA 0010
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since appellee filed his previous motion for a change in custody. And even though the
court did not order a change in custody, this does not mean appellee’s motion was
frivolous.   Moreover, the trial court did decide to increase appellee’s visitation.       So
appellee’s motion was, at least partially, successful.
       {¶30} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
       {¶31} Appellant’s third assignment of error states:

               THE TRIAL COURT ERRED IN DEVIATING THE FATHER’S
       CHILD SUPPORT OBLIGATION TO ZERO.

       {¶32} In her final assignment of error, appellant asserts the trial court should not
have modified appellee’s child support obligation to zero. First, appellant points out that
the court did not attach a child support calculation worksheet to its judgment entry to
show what child support would have been without a deviation, which she contends is
contrary to R.C. 3119.22. Additionally, she asserts that based on the evidence at the
hearing, the trial court could not have made a child support calculation since there was
no evidence presented as to income, health insurance, or other financial matters.
       {¶33} We review matters concerning child support for abuse of discretion. Pauly
v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997); Booth v. Booth, 44 Ohio
St.3d 142, 144, 541 N.E.2d 1028 (1989).
       {¶34} Pursuant to R.C. 3119.02:

       In any action in which a court child support order is issued or modified * * *
       the court or agency shall calculate the amount of the obligor's child
       support obligation in accordance with the basic child support schedule, the
       applicable worksheet, and the other provisions of sections 3119.02 to
       3119.24 of the Revised Code.

       {¶35} Moreover, the court may order an amount of child support that deviates
from the amount calculated on the child support worksheet through the line establishing
the actual annual obligation, if, after considering the factors and criteria set forth in R.C.
3119.23, the court determines that the amount calculated would be unjust or


Case No. 17 HA 0010
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inappropriate and would not be in the best interest of the child. R.C. 3119.22. And if
the court deviates, it “must enter in the journal the amount of child support calculated
pursuant to the basic child support schedule and the applicable worksheet, * * * its
determination that that amount would be unjust or inappropriate and would not be in the
best interest of the child, and findings of fact supporting that determination.”     R.C.
3119.22.
       {¶36} Appellant is correct that there was no evidence presented at the hearing
as to the parties’ income, health insurance, or other financial matters. The evidence
was solely focused on whether there was a change in circumstances and S.C.’s best
interests. Thus, there is no evidence for us to review.
       {¶37} Courts have held that when the appellate court can conduct a meaningful
review of the trial court's judgment without a child support worksheet, the absence of the
worksheet does not amount to reversible error. Mayberry v. Mayberry, 10th Dist. No.
15AP-160, 2016-Ohio-1031, ¶ 16, citing Longo v. Longo, 11th Dist. No.2008-G-2874,
2010-Ohio-3045, ¶ 35-36. In this case, in addition to no worksheet, there is also no
evidence.
       {¶38} At first glance it may seem equitable that if S.C. is now going to be
spending half of her time with appellant and half of her time with appellee, then there
should be no child support obligation.      But for the trial court to simply make this
determination without any evidence or findings as to the parties’ income, health
insurance, and other financial matters and without completing a child support
worksheet, was an abuse of discretion.
       {¶39} Accordingly, appellant’s third assignment of error has merit and is
sustained.
       {¶40} For the reasons stated above, the trial court’s judgment as to child support
is hereby reversed and the matter is remanded for the trial court to complete a child
support worksheet and then enter a new judgment on the issue of child support. The
court’s judgment is hereby affirmed in all other respects.

Robb, P., J, concurs
Bartlett, J, concurs




Case No. 17 HA 0010
[Cite as Collier v. Collier, 2018-Ohio-3596.]




        For the reasons stated in the Opinion rendered herein, the first and second
assignments of error are without merit and are overruled. The third assignment of error
has merit and is sustained. It is the final judgment and order of this Court that the
judgment of the Court of Common Pleas, of Harrison County, Ohio, is reversed in part
and the matter is remanded solely for the trial court to complete a child support
worksheet and then enter a new judgment on the issue of child support. The court’s
judgment is affirmed in all other respects. Costs to be taxed against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                          NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
