[Cite as Zwick v. Zwick, 2018-Ohio-2334.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JOHN ZWICK                                       JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Patricia A. Delaney, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 2017CA00221
TYRA ZWICK

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                     Appeal from the Stark County Common
                                             Pleas Court, Family Court Division Case
                                             No. 2015DR00986


JUDGMENT:                                    Affirmed


DATE OF JUDGMENT ENTRY:                       June 11, 2018


APPEARANCES:


For Plaintiff-Appellee                       For Defendant-Appellant


CHRISTOPHER DIONISIO                         DENISE K. HOUSTON
372 Whipple Ave., N.W.                       COLLIN S. WISE
Canton, OH 44718                             Tzangas Plakas Mannos Ltd.
                                             220 Market Ave. S., Eighth Floor
                                             Canton, OH 44702
Stark County, Case No. 2017CA00221                                                      2

Hoffman, P.J.



       {¶1}    Appellant Tyra Zwick appeals the judgment entered by the Stark County

Common Pleas Court, Family Court Division, naming Appellee John Zwick residential

parent of the parties’ two minor children.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    The parties were married in 2006, and had two minor children: a daughter

born in 2005, and a son born in 2007. Appellee filed the instant divorce action on October

2, 2015. Appellant filed a proposed shared parenting plan with the court. Appellee sought

to be named sole residential parent of the children, and did not file a proposed shared

parenting plan with the court.

       {¶3}    Appellee continues to reside in the marital home in the Canton Local School

District, where the children have resided since birth. The children have always attended

school in the Canton Local district.

       {¶4}    After separating from Appellee, Appellant moved to a $385,000 house in

Green with her paramour. She believes the schools in Green to be far superior to the

Canton Local schools, which she believes have problems with drugs and bullying. She

sought to move the children to Green with her in order to attend school in Green. She

has worked occasionally as a bartender and has acted as an extra in movies and

commercials.     She was employed part-time at a business partially owned by her

paramour. They have no plans to get married.

       {¶5}    The case proceeded to a hearing before a magistrate, with the hearing

focused primarily on the issue of custody of the children.         The magistrate found
Stark County, Case No. 2017CA00221                                                          3


Appellant’s proposed shared parenting plan to be shared “in name only” because it was

so “lopsided that it was blatantly unfair.” The magistrate found the shared parenting plan

was not in the best interests of the child.

          {¶6}   The magistrate recommended Appellee be named the residential parent of

the children, while giving Appellant nearly equal time with the children. The magistrate

found Appellee represented stability and consistency, as appellee was well-grounded with

a strong support system.

          {¶7}   The magistrate noted Appellant was a stay-at-home mom who was actively

involved with the children, but also found she preferred a “partying lifestyle” to being with

family.    The magistrate further found she raised concerns that were both real and

contrived, exaggerates, tends to be dramatic, and is not entirely truthful or realistic in her

perceptions of the world. The magistrate found she was not realistic about moving the

children to Green where she had no support system and her entire world was based on

her paramour, nearly twenty years her senior, whom she had no present plans to marry

and had not considered what would happen to her and the children in Green if they

separated.

          {¶8}   Appellant filed objections to the magistrate’s report. The court adopted the

magistrate’s findings concerning custody, but added several findings of its own. The court

found Appellant showed the guardian ad litem’s report to the older child. The court further

found the parties talked about each other so poorly in front of the children as to cause the

children stress. The court found the parties do not communicate in a manner conducive

to shared parenting.       The court further noted the daughter was confused by the

relationship between Appellant and her paramour, because at the time Appellant was still
Stark County, Case No. 2017CA00221                                                        4


married to Appellee. The court further found this confusion was heightened by Appellant

sleeping in the same bed with her paramour when the children were visiting. The court

also found Appellant’s health problems require a “plethora” of doctor’s appointments

which take up quite a bit of her time. Further, the court concluded Appellant has told the

children Appellee is not truthful.

       {¶9}   It is from the November 1, 2017 judgment naming Appellee the residential

parent Appellant prosecutes her appeal, assigning as error:




              I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       FAILED TO ADOPT A SHARED PARENTING PLAN AND INSTEAD

       AWARDED SOLE CUSTODY SOLELY TO FATHER.

              II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       AWARDED SOLE CUSTODY TO FATHER INSTEAD OF MOTHER.




                                               I.,II.

       {¶10} Appellant argues the trial court erred in failing to adopt her shared parenting

plan and instead awarded sole custody to Appellee rather than ordering shared parenting

or naming her sole residential parent.

       {¶11} Appellant argues the court erred in adopting the magistrate’s decision which

was based solely on the guardian ad litem’s recommendation. He argues the magistrate

did not make appropriate findings of fact as required by R.C. 3109.04(D)(1)(a)(iii), which

provides:
Stark County, Case No. 2017CA00221                                                      5




            If each parent makes a request in the parent's pleadings or files a

     motion but only one parent files a plan, or if only one parent makes a request

     in the parent's pleadings or files a motion and also files a plan, the court in

     the best interest of the children may order the other parent to file a plan for

     shared parenting in accordance with division (G) of this section. The court

     shall review each plan filed to determine if any plan is in the best interest of

     the children. If the court determines that one of the filed plans is in the best

     interest of the children, the court may approve the plan. If the court

     determines that no filed plan is in the best interest of the children, the court

     may order each parent to submit appropriate changes to the parent's plan

     or both of the filed plans to meet the court's objections or may select one

     filed plan and order each parent to submit appropriate changes to the

     selected plan to meet the court's objections. If changes to the plan or plans

     are submitted to meet the court's objections, and if any of the filed plans

     with the changes is in the best interest of the children, the court may

     approve the plan with the changes. If changes to the plan or plans are not

     submitted to meet the court's objections, or if the parents submit changes

     to the plan or plans to meet the court's objections but the court determines

     that none of the filed plans with the submitted changes is in the best interest

     of the children, the court may reject the portion of the parents' pleadings or

     deny the parents' motion or reject the portion of the parents' pleadings or

     deny their motions requesting shared parenting of the children and proceed
Stark County, Case No. 2017CA00221                                                          6


       as if the request or requests or the motion or motions had not been made.

       If the court approves a plan under this division, either as originally filed or

       with submitted changes, or if the court rejects the portion of the pleadings

       or denies the motion or motions requesting shared parenting under this

       division and proceeds as if the request or requests or the motion or motions

       had not been made, the court shall enter in the record of the case findings

       of fact and conclusions of law as to the reasons for the approval or the

       rejection or denial. Division (D)(1)(b) of this section applies in relation to the

       approval or disapproval of a plan under this division.




       {¶12} R.C. 3109.04(F) sets forth the factors to consider in determining the best

interests of the children in allocating parental rights and responsibilities generally, and

specifically as regarding shared parenting:




              (F)(1) In determining the best interest of a child pursuant to this

       section, whether on an original decree allocating parental rights and

       responsibilities for the care of children or a modification of a decree

       allocating those rights and responsibilities, the court shall consider all

       relevant factors, including, but not limited to:

              (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
Stark County, Case No. 2017CA00221                                                      7


     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 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
Stark County, Case No. 2017CA00221                                                     8


     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.

            (2) In determining whether shared parenting is in the best interest of

     the children, the court shall consider all relevant factors, including, but not

     limited to, the factors enumerated in division (F)(1) of this section, the

     factors enumerated in section 3119.23 of the Revised Code, and all of the

     following factors:

            (a)The ability of the parents to cooperate and make decisions jointly,

     with respect to the children;

            (b)The ability of each parent to encourage the sharing of love,

     affection, and contact between the child and the other parent;
Stark County, Case No. 2017CA00221                                                          9


              (c)Any history of, or potential for, child abuse, spouse abuse, other

       domestic violence, or parental kidnapping by either parent;

              (d)The geographic proximity of the parents to each other, as the

       proximity relates to the practical considerations of shared parenting;

              (e)The recommendation of the guardian ad litem of the child, if the

       child has a guardian ad litem.

              (3) When allocating parental rights and responsibilities for the care

       of children, the court shall not give preference to a parent because of that

       parent's financial status or condition.




       {¶13} We note at the outset while Appellant argues the magistrate considered only

the recommendation of the guardian ad litem, claims of trial court error must be based on

the actions taken by the trial court itself, rather than the magistrate's findings or proposed

decision. State Farm Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965,

911 N.E.2d 339, ¶ 11 (2nd District Montgomery). We therefore review the trial court’s

findings for compliance with R.C. 3109.04, not the magistrate’s decision.

       {¶14} Further, we note in her proposed shared parenting plan, Appellant stated,

“The parties hereby waive any requirement that this Court issue findings of fact and

conclusions of law with respect to this matter.”

       {¶15} Nevertheless, we find the trial court made adequate findings concerning the

shared parenting plan to comply with the statutory requirement the court make findings

of fact and conclusions of law to justify rejecting the shared parenting plan as not in the

best interests of the children. The court found the plan was shared parenting in name
Stark County, Case No. 2017CA00221                                                          10


only, as the proposed plan gave the majority of parenting time to Appellant. Rather, the

proposed plan named Appellant residential parent for school, gave Appellee only

Schedule A visitation time, gave Appellant all time not allotted to Appellee, and gave

Appellant right of first refusal when Appellee was not available for five hours of his

parenting time.

          {¶16} The court found Appellant was a stay-at-home mom who was actively

involved with the children, but also noted she preferred a “partying lifestyle” to being with

family.     The court found she raised concerns that were both real and contrived,

exaggerates, tends to be dramatic, and is not entirely truthful or realistic in her perceptions

of the world. The court found she was not realistic about moving the children to Green

where she had no support system and her entire world was based on her paramour,

nearly twenty years her senior, whom she had no present plans to marry and had not

considered what would happen to her and the children in Green if they separated.          The

court found Appellant showed the guardian ad litem’s report to the minor daughter. The

court further found the parties talked about each other so poorly in front of the children as

to cause the children stress. The court found the parties do not communicate in a manner

conducive to shared parenting. The court further noted the daughter was confused by

the relationship between Appellant and her paramour, who she referred to as her

“boyfriend” to the daughter, because at the time Appellant was still married to Appellee.

The court found this confusion was heightened by Appellant sleeping in the same bed

with her paramour when the children were visiting. The court also found Appellant’s

health problems require a “plethora” of doctor’s appointments which take up quite a bit of

her time. In addition, the court concluded Appellant has told the children Appellee is not
Stark County, Case No. 2017CA00221                                                        11


truthful. The trial court made extensive findings to justify its rejection of the shared

parenting plan proposed by Appellant.

       {¶17} Appellant next argues the court erred in adopting the magistrate’s decision

without conducting an independent review. An appellate court presumes that a trial court

performed an independent analysis of a magistrate's decision. Mahlerwein v. Mahlerwein,

160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 47 (4th Dist. Hocking).

Therefore, the party asserting error must affirmatively demonstrate the trial court failed to

conduct the independent analysis. Arnold v. Arnold, 4th Dist. Athens No. 04CA36, 2005-

Ohio-5272, 2005 WL 2416378, at ¶ 31; Mahlerwein at ¶ 47.

       {¶18} Appellant’s argument is patently without merit. The trial court added to the

findings of the magistrate with additional findings of its own, demonstrating the court

undertook an independent review of the record and analysis of the magistrate’s decision.

       {¶19} Finally, Appellant argues the judgment naming Appellee sole residential

parent rather than ordering shared parenting or naming her the residential parent is not

supported by the evidence. She primarily attacks the testimony and report of the guardian

ad litem, who recommended Appellee be named residential parent, with nearly equal

parenting time.

       {¶20} On appeal, our standard of review in assessing the disposition of child

custody matters is that of abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 73–74

(1988). In order to find an abuse of that discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

Furthermore, as an appellate court reviewing evidence in custody matters, we do not
Stark County, Case No. 2017CA00221                                                      12


function as fact finders; we neither weigh the evidence nor judge the credibility of

witnesses. Our role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base his or her judgment. See Dinger v. Dinger,

5th Dist. Stark No.2001CA00039, 2001–Ohio–1386. Because custody issues are some

of the most difficult and agonizing decisions a trial judge must make, he or she must have

wide latitude in considering all the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418,

674 N.E.2d 1159(1997).

       {¶21} The record demonstrates the guardian interviewed numerous witnesses

and issued several detailed reports to the court. The guardian testified after interviewing

teachers at the school, he believed the parties’ daughter struggled with her schoolwork

not because of bullying as alleged by Appellant, but rather because of the pressure

Appellant placed on her to change schools to Green. He testified he believed the “bullying

log” the child kept as part of counseling was an attempt by Appellant to shore up her claim

of bullying in order to support her plan to move the children to Green to live with her and

attend school. Although he did not feel Appellant’s behavior rose to the level of parental

alienation or a “personal campaign of disdain” against Appellee, he was concerned about

her campaign to sour the children on the Canton Local schools in order to convince them

Green would be a better school system.

       {¶22} There was evidence the children had lived in the marital residence, where

Appellee continued to reside, their entire lives, and had always attended the Canton Local

schools. Appellee had family and a support system in the area where he resided.
Stark County, Case No. 2017CA00221                                                       13


       {¶23} The babysitter of the children, who was also a friend of Appellant’s, testified

Appellant made inappropriate comments about the guardian in front of the children, and

further called Appellee a liar in front of the children.

       {¶24} Appellee testified to concerns with manipulation and instability on the part

of Appellant. He testified her lifestyle was about vacationing and partying, and he was

concerned the children would be an inconvenience. She had no support system in Green

other than her paramour, around whom her life in Green was based. When asked where

she would go if they broke up, she responded it “would not be an issue.”

       {¶25} There was evidence the older child referred to her school system as “scum,”

“dangerous,” and “low life,” and extolled the virtues of the schools in Green despite the

fact she had very limited experience living in Green. Appellant’s perception there would

be no problems in the Green schools was found by the court to be unrealistic. As testified

to by the guardian, there are problems in all schools. Her continued campaign to use

whatever means necessary to get the children to move in with her and her paramour and

attend the Green schools supports the court’s conclusion the parties do not communicate

in a way conducive to shared parenting.

       {¶26} Based on the evidence presented to the court, we find no abuse of

discretion in the court’s order naming Appellee residential parent of the parties’ minor

children.
Stark County, Case No. 2017CA00221                                               14


      {¶27} The first and second assignments of error are overruled. The judgment of

the Stark County Common Pleas Court, Family Court Division, is affirmed.




By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
