[Cite as Wilcox v. Iiams, 2019-Ohio-3030.]




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




TABITHA N. WILCOX,
                                                          CASE NO. 8-18-64
       PLAINTIFF-APPELLEE,

       v.

JORDAN B. IIAMS,                                          OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Logan County Common Pleas Court
                          Family Court - Juvenile Division
                            Trial Court No. 09-AD-117

                                      Judgment Affirmed

                              Date of Decision: July 29, 2019



APPEARANCES:

        Steven R. Fansler for Appellant

        Beverly J. Farlow for Appellee
Case No. 8-18-64


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jordan B. Iiams (“Iiams”) appeals the judgment of

the Logan County Court of Common Pleas, Family Court—Juvenile Division,

alleging that the trial court erred by ordering a modification of their shared parenting

arrangement. For the reasons set forth below, the judgment of the trial court is

affirmed.

                            Facts and Procedural History

       {¶2} Iiams and Tabitha N. Wilcox (“Wilcox”) are the parents of Z.I. Doc. 1.

On July 11, 2012, the trial court issued a shared parenting decree that included a

shared parenting plan. Doc. 137. Under this plan, Iiams had midweek visitation

time with Z.I. Doc. 137. In 2017, Wilcox began dating Charles Ferrell (“Ferrell”),

who lives in Port Clinton, Ohio. Tr. 11, 56. At some point, Wilcox decided that

she wanted to move to Port Clinton in order to live with Ferrell. Tr. 12. On July

13, 2017, Wilcox filed a motion for modification that requested that the terms of the

shared parenting plan be adjusted to accommodate her relocation. Doc. 231. In

particular, Wilcox requested that the trial court eliminate Iiams’s midweek visitation

time with Z.I. and change the school district that Z.I. attends. Doc. 231.

       {¶3} On February 26, 2018, Wilcox and Iiams appeared at a hearing on this

motion for modification before the magistrate. Tr. 1. On April 17, 2018, the

magistrate issued a decision, which recommended that the trial court deny Wilcox’s

request to eliminate Iiams’s midweek visitation with Z.I. Doc. 277. On May 1,

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2018, Wilcox objected to the magistrate’s decision, arguing that her requested

modifications to the shared parenting plan were in Z.I.’s best interests. Doc. 278,

284. On October 8, 2018, the trial court overruled the magistrate’s decision in part

and ordered that the shared parenting plan be modified by eliminating Iiams’s

midweek visitation with Z.I. Doc. 294. The trial court then increased Iiams’s

summer visitation time from four weeks to six weeks and designated Wilcox as the

residential parent for school placement purposes. Doc. 294.

       {¶4} Iiams filed his notice of appeal on November 6, 2018. Doc. 298. On

appeal, he raises the following two assignments of error:

                            First Assignment of Error

       The trial court erred in his entry by failing to apply the proper
       statutory and case law standard for the modification of the shared
       parenting plan which occurred.

                           Second Assignment of Error

       The trial court judge erred in failing to make a proper
       independent analysis and in failing to give any required rationale
       for his decision to overrule the magistrate’s decision.

We will consider the second assignment of error before considering the first

assignment of error.

                            Second Assignment of Error

       {¶5} Iiams argues that the trial court failed to conduct an independent

analysis of the magistrate’s decision and failed to give a rationale for overruling the

magistrate’s recommendation.

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                                    Legal Standard

       {¶6} “[A] magistrate is a ‘subordinate officer of the trial court, not an

independent officer performing a separate function.’” Palenshus v. Smile Dental

Group, Inc., 3d Dist. Crawford No. , 2003-Ohio-3095, ¶ 7, quoting Pauley v. Pauley,

2d Dist. Clark No. 2001-CA-49, 2002 WL 360664, *2 (March 8, 2002). Thus, under

“Rule 53(D)(4)(d) of the Ohio Rules of Civil Procedure, when objections are filed

to a magistrate’s decision, the trial court must independently review the objected

matters to decide if the magistrate properly determined the factual issues and

appropriately applied the law.” Gilleo v. Gilleo, 3d Dist. Mercer No. 10-10-07,

2010-Ohio-5191, ¶ 46, citing Civ.R. 53(D)(4)(d).

       {¶7} For this reason, the trial court conducts a de novo review of the

magistrate’s decision. Goldfuss v. Traxler, 3d Dist. Wyandot No. 16-08-12, 2008-

Ohio-6186, ¶ 7. “[T]he trial court has broad discretion to sustain or overrule an

objection to a magistrate’s decision and while the magistrate is the ‘initial fact finder

and issue resolver,’ the trial court remains the ‘ultimate fact finder and issue

resolver.’” Davis v. Davis, 5th Dist. Tuscarawas No. 2016 AP 05 0031, 2016-Ohio-

7205, ¶ 47, quoting Hrabovsky v. Axley, 5th Dist. Stark No.2013CA00156, 2014-

Ohio-1168, ¶ 28.

       {¶8} However, “[a] trial court’s failure to conduct an independent review in

accordance with Civ.R. 53 is an abuse of its discretion.” Figel v. Figel, 3d Dist.

Mercer No. 10-08-14, 2009-Ohio-1659, ¶ 10. “A trial court will be found to have

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abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound.” Mackenbach v. Mackenbach, 3d

Dist. Hardin No. 6-11-03, 2012-Ohio-311, ¶ 7. An appellate court is not to

substitute its judgment for that of the trial court. Id.

       {¶9} Further, “[a]n appellate court generally presumes regularity in the

proceedings below; and, therefore, that the trial court conducted an independent

analysis in reviewing the magistrate’s decision.” Rodriguez v. Rodriguez, 3d Dist.

Mercer No. 10-13-15, 2013-Ohio-5663, ¶ 26. Thus, “the party asserting error bears

the burden of affirmatively demonstrating the trial court[’]s failure to perform its *

* * duty of independent analysis” pursuant to Civ.R. 53(D). (Bracket original.)

Figel v. Figel, 3d Dist. Mercer No. 10-08-14, 2009-Ohio-1659, ¶ 10, quoting

Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d

153, ¶ 47 (4th Dist.).

       ‘[T]he mere fact the trial court did not cite any specific portion of
       a transcript or exhibit does not demonstrate the court failed to
       conduct an independent review of the objected matters as
       required by Civ.R. 53(D)(4)(d).’ In re G.C., 12th Dist. Butler Nos.
       CA2016-12-237, CA2016-12-238, CA2016-12-239, and CA2016-
       12-240, 2017-Ohio-4226, ¶ 18. ‘While citing such material would
       tend to demonstrate that the trial court conducted the requisite
       independent review, there is no requirement in Civ.R. 53(D)(4)(d)
       that the trial court do so.’ Hampton v. Hampton, 12th Dist.
       Clermont No. CA2007-03-033, 2008-Ohio-868, ¶ 17. Likewise, we
       cannot conclude that the trial court did not conduct an
       independent review simply because it did not discuss every
       conceivable characterization of the evidence. See Brandon v.
       Brandon, 3d Dist. Mercer No. 10-08-13, 2009-Ohio-3818, ¶ 35.


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Stowe v. Chuck’s Automotive Repair, LLC, 9th Dist. Summit No. 29017, 2019-Ohio-

1158, ¶ 8.

                                   Legal Analysis

       {¶10} In this case, the judgment entry indicates that the trial court conducted

an independent analysis of the magistrate’s decision. In its judgment entry, the trial

court examined a number of facts contained in the record. Doc. 294. The trial court

considered the child’s desire to move with his mother; the child’s relationship with

Wilcox’s significant other; the fact that Wilcox had been the primary caregiver; and

Wilcox’s belief that a move would open up opportunities for Z.I. Doc. 294. The

trial court also noted that Iiams had infrequently exercised the midweek visitation

rights that Wilcox sought to terminate and that this infrequency was caused by

Iiams’s work schedule. Doc. 294. These listed findings of fact are an indication

that the trial court conducted an independent review of the magistrate’s decision.

See Giovanni v. Bailey, 9th Dist. Summit No. 28631, 2018-Ohio-369, ¶ 24. While

the appellant points to the absence of references to the transcript to support his

argument, the trial court was not required under Civ.R. 53(D)(4)(d) to cite to the

transcript in its judgment entry. Stowe at ¶ 8.

       {¶11} Contrary to the appellant’s assertion, the trial court engaged in an

analysis that was not included in the magistrate’s decision.         The trial court

determined that the elimination of midweek visitation “would reduce [Iiams’s]

parenting time by approximately one week’s worth of hours over the course of a

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year * * *.” Doc. 294. Consequently, the trial court increased Iiams’s summer

visitation from four weeks to six weeks to compensate for the elimination of the

Iiams’s midweek visitation. Doc. 294. Further, the trial court also found the fact

that Wilcox did not seek to eliminate the child’s summer visitation time with Iiams

to be significant. Doc. 294. The fact that the trial court did not adopt the

magistrate’s decision in full is not evidence of an abuse of discretion or evidence

that the trial court did not engage in an independent analysis. Rather, the trial court

is to engage in a de novo review of the magistrate’s decision and is free, in its

discretion, to “adopt, reject, or modify the magistrate’s decision.” See Barrientos

v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, 964 N.E.2d 492, ¶ 4 (3d

Dist.).

          {¶12} Further, the appellant argues that the trial court did not consider the

statutory factors under R.C. 3901.04(F)(1) to determine whether the requested

modification was in the child’s best interests. While the trial court did not expressly

state which factors from R.C. 3901.04(F)(1) applied, the trial court referenced a

number of considerations contained therein. The trial court considered the wishes

of the child; the relationship of the child with any “person who may significantly

affect the child’s best interest”; and the wishes of the child’s parents. See R.C.

3901.04(F)(1). Ultimately, the trial court is not required to “cite to the substantive

law upon which it relied,” though such citations are beneficial in the process of



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appellate review. Huntington Natl. Bank v. Findlay Machine & Tool, Inc., 3d Dist.

Hancock No. 5-11-27, 2012-Ohio-748, ¶ 27.

       {¶13} After examining the record, we conclude that the appellant has not

carried his burden of affirmatively demonstrating that the trial court failed to

conduct an independent analysis of the magistrate’s decision. Further, Iiams has not

pointed to evidence in the record or identified an irregularity in the proceedings to

rebut the presumption that the trial court properly conducted an independent

analysis of the magistrate’s decision. Rodriguez, supra, at ¶ 26. The content of the

judgment entry indicates that the trial court examined the facts of this case but came

to a different conclusion from the magistrate. We do not find that the trial court

abused its discretion in so ruling. The trial court’s decision indicates that the trial

court’s decision was supported by a number of facts contained in the record. Since

appellant has not carried the burden of establishing that the trial court failed to

perform its duty of independent review, Iiams’s second assignment of error is

overruled.

                             First Assignment of Error

       {¶14} Iiams argues that the trial court failed to apply the proper standard in

ordering a modification of the existing shared parenting arrangement.

                                   Legal Standard

       {¶15} “Once a shared-parenting decree has issued,” R.C. 3109.04(E)

governs the process of modifying the terms of the shared parenting decree or the

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shared parenting plan. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589,

876 N.E.2d 546, ¶ 11. Under Ohio’s “custody statute, a [shared parenting] ‘plan’ is

statutorily different from a [shared parenting] ‘decree’ * * *.” Id. at ¶ 29.

       [A] shared-parenting decree grants the parents shared parenting
       of a child. R.C. 3109.04(D)(1)(d). An order or decree is used by
       a court to grant parental rights and responsibilities to a parent or
       parents and to designate the parent or parents as residential
       parent and legal custodian.

       However, a plan includes provisions relevant to the care of a child,
       such as the child’s living arrangements, medical care, and school
       placement. R.C. 3109.04(G). A plan details the implementation
       of the court’s shared-parenting order.

Id. ¶ 29-30. R.C. 3109.04(E)(1)(a) applies when the trial court is considering a

modification of the shared parenting decree. (Emphasis added.) Sayre v. Furgeson,

2016-Ohio-3500, 66 N.E.3d 332 (3d Dist.), ¶ 17, citing Fisher at ¶ 11. R.C.

3109.04(E)(2) applies when the trial court is considering a modification of the

shared parenting plan. Furgeson at ¶ 21.

       {¶16} If the modification changes a term of the shared parenting decree, a

trial court must, under to R.C. 3109.04(E)(1)(a), “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.’” Furgeson at ¶ 17, 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.’” (Emphasis added.) Id.




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       {¶17} However, if the modification changes a term of the shared parenting

plan, R.C. 3109.04(E)(2) applies and provides two avenues for making

modifications. Furgeson at ¶ 21. R.C. 3109.04(E)(2)(a, b). First, under R.C.

3109.04(E)(2)(a), both parents may jointly modify the terms of the shared parenting

plan. R.C. 3109.04(E)(2)(a). Second, under R.C. 3109.04(E)(2)(b),

       [t]he 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 plan under
       this division, unless the modification is in the best interest of the
       children.

R.C. 3109.04(E)(2)(b). “[I]f the court is only seeking to change the method of

implementation of a shared parenting plan, by changing its terms, it may apply R.C.

3109.04(E)(2)(b) and look only to what is in the best interest of the child.” Sanders-

Bechtol v. Bechtol, 3d Dist. Hancock No. 5-08-08, 2009-Ohio-186, ¶ 15.

       {¶18} R.C. 3901.04(F)(1) contains a non-exclusive list of factors for the trial

court to consider in determining whether a modification to a shared parenting

arrangement under R.C. 3901.04 is in the best interests of the child.            R.C.

3901.04(F)(1). This list reads, in its relevant part, as follows:

       (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

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       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;

R.C. 3901.04(F)(1). See Ralston v. Ralston, 3d Dist. Marion No. 9-08-30, 2009-

Ohio-679, ¶ 18. However, in addition to the contents of this list, R.C. 3901.04(F)(1)

also directs the trial court to consider “all relevant factors.” R.C. 3901.04(F)(1).

       {¶19} This Court has previously determined that “R.C. 3109.04(E)(2)(b)

applies when the [trial] court modifies the designation of a residential parent for

school purposes, but otherwise maintains both parents as residential parents with

the same parental rights and responsibilities.” King v. King, 3d Dist. Union No. 14-

11-23, 2012-Ohio-1586, ¶ 8. See Fritsch v. Fritsch, 1st Dist. Hamilton No. C-

140163, 2014-Ohio-5357, ¶ 21; In re E.L.C., 12th Dist. Butler No. CA2014-09-177,

2015-Ohio-2220, ¶ 42. Further, this Court and a number of other appellate districts

have also determined that where shared parenting is continued, as here, the

“modification of parenting time * * * should be evaluated under R.C.

3109.04(E)(2)(b), and a showing of ‘change in circumstances’ under R.C.

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3109.04(E)(1)(a) is not required.” Gessner v. Gessner, 2d Dist. Miami No. 2017-

CA-6, 2017-Ohio-7514, ¶ 35. See Sanders-Bechtol at ¶ 16-18; Kovach v. Lewis, 5th

Dist. Ashland No. 11-COA-018, 2012-Ohio-1512, ¶ 26; Ramsey v. Ramsey, 10th

Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 36; Lake v. Lake, 11th Dist.

Portage No. 2009-P-0015, 2010-Ohio-588, ¶ 70.

       {¶20} “In determining the allocation of parental rights and responsibilities,

the trial court is granted broad discretion.” Sanders-Bechtol at ¶ 22. “Accordingly,

a trial court’s decision regarding the allocation of parental rights and responsibilities

that is supported by a substantial amount of competent and credible evidence will

not be reversed on appeal absent an abuse of discretion.” Id. An abuse of discretion

is not merely an error of judgment. Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d

339, ¶ 7 (3d Dist.). Rather, an abuse of discretion is present where the trial court’s

decision is unreasonable, arbitrary, or capricious. Southern v. Scheu, 3d Dist.

Shelby No. 17-17-16, 2018-Ohio-1440, ¶ 10.

                                    Legal Analysis

       {¶21} On appeal, Iiams asserts that R.C. 3109.04(E)(1)(a) applies to this

case. He further argues that, under R.C. 3109.04(E)(1)(a), the trial court’s order is

deficient because the trial court “[1] did not find a change of circumstances * * *

[2] did not find that the modification is necessary to serve the best interest of the

child,” and (3) did not find that one of the factors in R.C. 3109.04(E)(1)(a)(i-iii)

applied to this case. (Emphasis added.) Appellant’s Brief, 8.

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       {¶22} In this case, the trial court’s order (1) eliminated Iiams’s midweek

visitation with Z.I.; (2) granted Iiams’s an additional two weeks of summer time

visitation with Z.I.; and (3) designated Wilcox as the residential parent for school

placement purposes. Doc. 294. These changes modified parenting time and the

designation of the residential parent for school placement purposes. Doc. 294.

Under the law of this district, these are modifications to the terms of the shared

parenting plan and are not modifications of the shared parenting decree. King,

supra, at ¶ 8; Sanders-Bechtol at ¶ 16-18. Thus, R.C. 3109.04(E)(2)(b), rather than

R.C. 3109.04(B)(1)(a), applies in this case. Furgeson, supra, at ¶ 17, citing Fisher,

supra, at ¶ 11.

       {¶23} Under R.C. 3109.04(E)(2)(b), the trial court was not required to find

that a change in circumstances had occurred in order to issue these modifications.

R.C. 3109.04(E)(2)(b). Further, R.C. 3109.04(E)(2)(b) only requires that the trial

court determine that a modification “is in the best interest of the child.” R.C.

3109.04(E)(2)(b). Thus, the trial court was not required to find that the modification

was “necessary to serve the best interest of the child” or to find that one of the R.C.

3109.04(E)(1)(a)(i-iii) was applicable in this case. R.C. 3109.04(E)(1)(a). Since

these findings were not required under the relevant statute, the trial court did not

commit any errors by not making them.

       {¶24} Under R.C. 3109.04(E)(2)(b), the trial court needed only to

“determine[] that the modification[] [was] in the best interest of the child.” R.C.

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3109.04(E)(2)(b). In its judgment entry, the trial court considered Z.I.’s desire to

move with his mother, the wishes of Wilcox, and Iiams’s opposition to these

modifications. Doc. 294. See R.C. 3109.04(F)(1)(b). The trial court also noted that

the child “does well in [Wilcox’s] care”; that Wilcox has been “the child’s primary

caregiver over the years”; and that Z.I. and Ferrell “get along well.” Doc. 294. See

R.C. 3109.04(F)(1)(c). Further, the judgment entry stated that Iiams had not been

regularly exercising his midweek visits for some time due his work schedule and

that, with Z.I.’s increased summer visitation time with Iiams, this modified

arrangement “would continue to ensure that the child has significant, regular time

with each parent.” Doc. 294.

       {¶25} After reviewing the record, we do not find that the trial court abused

its discretion in granting Wilcox’s request to modify the shared parenting plan. The

judgment entry makes clear that the trial court considered the facts of this case in

reaching its conclusion that a modification would be in the best interests of the child.

See Hall v. Hall, 4th Dist. Adams No. 16CA1030, 2017-Ohio-8968, ¶ 33 (holding

that “a trial court substantially complies with R.C. 3109.04(E)(2)(b) if its reasons

for modifying the terms of a shared parenting plan are apparent from the record; i.e.,

if it is apparent from the record that the modification is in the child’s best interest.”);

Hartman v. Hartman, 8th Dist. Cuyahoga No. 107251, 2019-Ohio-177, ¶ 16

(upholding a modification when it was “apparent from the record that the trial court

believed it was in the best interests of the children to modify the terms of the original

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parenting plan * * *.”); Lake, supra, at ¶ 73. For these reasons, Iiams’s first

assignment of error is overruled.

                                    Conclusion

       {¶26} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Logan County Court of Common Pleas,

Family Court - Juvenile Division is affirmed.

                                                              Judgment Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls




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