[Cite as Rice v. Rice, 2011-Ohio-3099.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



SCOTT RICE                                         JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellant                        Hon. Julie A. Edwards, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10 CA F 11 0091
FAITH RICE

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Domestic Relations Division, Case
                                               No. 97 DR A 04097

JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 23, 2011


APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

ROBERT J. MANN                                 DOUGLAS J. BEHRINGER
ROBERT J. MANN & ASSOC.                        c/o FOP/OLC., INC.
150 East Mound Street, Suite 308               222 East Town Street
Columbus, Ohio 43215                           Columbus, Ohio 43215

MARY SPAHIA-CARDUCCI                           JAMES B. HARRIS
CARDUCCI & ASSOCIATES                          HARRIS, MCCLELLAN, BINAU & COX
150 East Mound Street, Suite 308               37 East Broad Street, Suite 950
Columbus, Ohio 43215                           Columbus, Ohio 43215
Delaware County, Case No. 10 CA F 11 0091                                               2

Wise, P. J.


      {¶1}    Plaintiff-Appellant Scott Rice appeals from the decision of the Delaware

County Court of Common Pleas, Domestic Relations Division, which dismissed his

motion to terminate shared parenting pursuant to Civ.R. 41(B)(2). Defendant-Appellee

Faith Rice nka Behringer is appellant’s former spouse. The relevant facts leading to

this appeal are as follows.

      {¶2}    On May 8, 1998, appellant and appellee were granted a divorce by the

Delaware County Court of Common Pleas, Domestic Relations Division. The divorce

decree incorporated a shared parenting plan concerning the parties’ twin sons, C.R.

and C.R., born in 1996. The twins are now teenagers and, among other things, are

avid hockey players.

      {¶3}    Pursuant to a modification of the plan on August 3, 2001, Appellee Faith

was named residential parent for school purposes.

      {¶4}    The parties were again before the trial court in 2005 and 2006, resulting in

an order on April 4, 2006 incorporating a memorandum of agreement of the parties as

to shared parenting.

      {¶5}    On June 5, 2008, appellant filed a motion for modification of parental

rights and responsibilities and modification of child support. He specifically therein

requested a termination of shared parenting on the basis of substantial change in

circumstances. Appellant averred that, inter alia, appellee was interfering with the boys’

hockey activities and that she failed “to provide for the children to attend middle school

in a public or private school district other than the Columbus City Schools.” Affidavit in

Support, June 5, 2008, at 1.
Delaware County, Case No. 10 CA F 11 0091                                                 3


       {¶6}   The case proceeded to an evidentiary hearing before a magistrate on

February 10, 2010. As further discussed infra, the children were not interviewed in

camera during the proceedings, nor did the guardian ad litem testify, although his

report was proffered, but not admitted or considered by the magistrate.

       {¶7}   At the close of appellant’s case-in-chief, appellee moved for a dismissal

under Civ.R. 41(B)(2), contending appellant had failed to show a change in

circumstances warranting any modification of the shared parenting arrangement. The

magistrate granted the motion to dismiss via a ten-page written decision issued March

18, 2010.

       {¶8}   Appellant thereupon filed timely objections to the magistrate’s decision.

       {¶9}   On October 25, 2010, the trial court overruled appellant’s objections and

adopted the magistrate’s decision via judgment entry.

       {¶10} On November 19, 2010, appellant filed a notice of appeal. He herein

raises the following eleven Assignments of Error:

       {¶11} “I.    THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

COURT ERRONEOUSLY CREATED A BIFURCATED STANDARD REQUIRING A

PARTY TO FIRST SHOW A CHANGE IN CIRCUMSTANCES BEFORE A MINOR

CHILD WILL BE INTERVIEWED, WHEN SUCH HOLDING IS CONTRARY TO OHIO

LAW.

       {¶12} “II.   THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE
Delaware County, Case No. 10 CA F 11 0091                                  4


COURT FAILED TO INTERVIEW THE MINOR CHILDREN AFTER A PROPER AND

TIMELY REQUEST HAD BEEN MADE.

      {¶13} “III. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

COURT DISREGARDED ITS OWN FEBRUARY 5, 2010 DECISION THAT A CHANGE

IN CIRCUMSTANCES IS NOT A CONDITION PRECEDENT TO INTERVIEWING A

MINOR CHILD.

      {¶14} “IV. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

COURT     FAILED   TO   APPOINT    AN    ADVOCATE    OR   OTHERWISE     MAKE

APPROPRIATE ORDERS FOR THE MINOR CHILDREN WHEN THE WISHES OF

THE    CHILDREN     CONFLICTED    WITH      THE   RECOMMENDATION   OF    THE

GUARDIAN AD LITEM.

      {¶15} “V.   THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

COURT FAILED TO CONSIDER THE REPORT AND RECOMMENDATION OF THE

GUARDIAN AD LITEM.

      {¶16} “VI. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

COURT WHERE THE COURT FAILED TO ALLOW [APPELLANT] TO SUBMIT

SPECIFIED PORTIONS OF THE GUARDIAN AD LITEM’S REPORT.

      {¶17} “VII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHEN THE
Delaware County, Case No. 10 CA F 11 0091                              5


COURT RULED THAT THE GUARDIAN AD LITEM WOULD TESTIFY AND GIVE HIS

REPORT AFTER THE PRESENTATION OF ALL EVIDENCE, BUT THE COURT

THEN TERMINATED THE HEARING ON ORAL MOTION WITHOUT EVER HEARING

FROM THE GUARDIAN AD LITEM OR RECEIVING HIS REPORT.

      {¶18} “VIII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

LOWER     COURT      ERRONEOUSLY     CREATED   A   BIFURCATED   STANDARD

HOLDING A CHANGE IN CIRCUMSTANCES MUST BE SHOWN IN ORDER FOR

[APPELLANT’S] MOTION TO BE HEARD WHERE NO SUCH SHOWING IS

REQUIRED BEFORE TERMINATING A SHARED PARENTING PLAN.

      {¶19} “IX. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION BASED ON AN

ALLEGED FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES WHEN

SUCH A CHANGE IN CIRCUMSTANCES WAS IN FACT DEMONSTRATED.

      {¶20} “X.    THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

LOWER COURT IMPROPERLY AND PREMATURELY DISMISSED [APPELLANT’S]

CASE WITHOUT INTERVIEWING THE CHILDREN AND WITHOUT HEARING FROM

THE GUARDIAN AD LITEM.

      {¶21} “XI.   THE TRIAL COURT ERRED IN OVERRULING [APPELLANT’S]

OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE

LOWER COURT’S DECISION CONTAINS ERRORS OF LAW, IS AGAINST THE
Delaware County, Case No. 10 CA F 11 0091                                                 6


MANIFEST WEIGHT OF THE EVIDENCE, AND CONSTITUTES AN ABUSE OF

DISCRETION.”

                                              I., II.

      {¶22} In his First and Second Assignments of Error, appellant contends the trial

court erred in requiring him to demonstrate a change in circumstances before

permitting an in camera interview between the court and the children. We disagree.

      {¶23} R.C. 3109.04(B)(1) states as follows: “(B)(1) When making the allocation

of the parental rights and responsibilities for the care of the children under this section

in an original proceeding or in any proceeding for modification of a prior order of the

court making the allocation, the court shall take into account that which would be in the

best interest of the children. In determining the child's best interest for purposes of

making its allocation of the parental rights and responsibilities for the care of the child

and for purposes of resolving any issues related to the making of that allocation, the

court, in its discretion, may and, upon the request of either party, shall interview in

chambers any or all of the involved children regarding their wishes and concerns with

respect to the allocation.” (Emphases added).

      {¶24} Furthermore, R.C. 3109.04(E)(1)(a) states in pertinent part: “The court

shall not modify a prior decree allocating parental rights and responsibilities for the

care of children unless it finds, based on facts that have arisen since the prior decree

or that were unknown to the court at the time of the prior decree, 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, and that the modification is necessary to

serve the best interest of the child. ***.”
Delaware County, Case No. 10 CA F 11 0091                                              7


      {¶25} In addition, R.C. 3109.04(E)(2)(c) states in pertinent part: “The court may

terminate a prior final shared parenting decree that includes a shared parenting plan

approved under division (D)(1)(a)(i) of this section upon the request of one or both of

the parents or whenever it determines that shared parenting is not in the best interest

of the children. ***.”

      {¶26} In Oliver v. Arras, Tuscarawas App.No. 2001 AP 11 0105, 2002-Ohio-

1590, we held that the “best interest” language of R.C. 3109.04(E)(2)(c) is subordinate

to the general “change of circumstances” provision of R.C. 3109.04(E)(1)(a). Recently,

in Brocklehurst v. Duncan, Muskingum App.No. CT10-0026, 2010-Ohio-5978, we

upheld our holding in Oliver, indicating that change of circumstances is a “threshold

question” in deciding a shared parenting termination issue. Id. at ¶ 19. Also, in Cossin

v. Holley, Morrow App.No. 2006CA0014, 2007-Ohio-5258, we recognized: “The initial

determination to be made by the trial court [regarding a motion to terminate shared

parenting] is whether there has been a change of circumstances of the child or the

residential parent since the prior court order. *** This finding should be made prior to

weighing the child's best interest.” Id. at ¶ 34, citing Wyss v. Wyss (1982), 3 Ohio

App.3d 412, 414, 445 N.E.2d 1153 and Green v. Green (Mar. 31, 1998), Lake App. No.

96-L-145. See, also, Handy v. Handy, Tuscarawas App.No. 2006AP110064, 2007-

Ohio-4423, ¶ 16-¶ 17.

      {¶27} In light of the foregoing precedent, we hold appellant’s claim that the trial

court improperly required a demonstration of a change in circumstances before

permitting an in camera interview is without merit. Appellant’s First and Second

Assignments of Error are therefore overruled.
Delaware County, Case No. 10 CA F 11 0091                                              8


                                           III.

      {¶28} In his Third Assignment of Error, appellant contends the trial court erred in

declining to permit an in camera interview between the court and the children, despite

having issued a preliminary ruling that a change in circumstances would not be a

prerequisite to such an interview. We disagree.

      {¶29} Appellant points out the following preliminary ruling by the magistrate,

which was set forth in the magistrate’s pre-trial order of February 5, 2010: “A judicial

determination of the existence of a change of circumstances is not a condition

precedent to the granting of an in camera interview as required by O.R.C. section

3109.04(B)(1).” Id. at 1.

      {¶30} We are unpersuaded that this initial determination by the magistrate

conflicts with his ultimate decision not to conduct an in camera interview with the

children. The magistrate’s wording simply recognizes that a court may conduct an in

camera interview even if the “change of circumstances” question is preliminarily

unsettled in a given case. However, as we have previously herein set forth, R.C.

3109.04 does not mandate such an interview where there has been no demonstration

of a change of circumstances and the matter of best interests will not be reached.

      {¶31} Appellant’s Third Assignment of Error is overruled.

                                      V., VI., VII.

      {¶32} In his Fifth, Sixth, and Seventh Assignments of Error, which we will jointly

address out of sequence, appellant maintains the trial court erred in dismissing

appellant’s shared parenting termination motion (pursuant to Civ.R. 41(B)(2)) without
Delaware County, Case No. 10 CA F 11 0091                                                   9


hearing from the guardian ad litem or receiving his report into evidence, and without

allowing appellant to submit portions of said report. We disagree.

      {¶33} R.C. 3109.04(F)(2) states in pertinent part as follows:

      {¶34} “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 *** (e) The

recommendation of the guardian ad litem of the child, if the child has a guardian ad

litem.”

      {¶35} In In re Cordell (Apr. 2, 1992), Cuyahoga App. Nos. 60049 and 60050,

1992 WL 67629, the Eighth District Court of Appeals concluded that any claim of error

arising from a guardian ad litem's failure to file a written report is waived when the

argument is not raised in the trial court. In the case sub judice, appellant’s trial counsel

rested his case without requesting admission of the guardian ad litem’s report or calling

him as a witness. See Tr. at 145. The magistrate subsequently told appellant’s trial

counsel that if the report was to be entered as evidence, it would have to be entered in

toto and without redactions. Again, appellant’s trial counsel stated he would not agree

to such an admission without the opportunity to cross-examine the guardian ad litem.

Tr. at 151-152. This was perhaps a strategic decision by counsel, as the guardian ad

litem’s   report,   which   was   proffered   for   the   record,   ultimately   contains   a

recommendation that the status quo should remain under the shared parenting plan,

with the exception of slight parenting time changes during the school year and vacation

times.
Delaware County, Case No. 10 CA F 11 0091                                                     10




          {¶36} Furthermore, Ohio's statutory scheme for modifying parental rights and

    responsibilities requires a two-part determination: whether a change in circumstances

    has occurred and, if so, whether a modification is in the best interest of the child. See

    Neighbor v. Jones, Summit App.No. 24032, 2008-Ohio-3637, ¶ 6. Because the trial

    court went no further than the change of circumstances threshold in this instance, we

    hold the court did not commit reversible error in its handling of the guardian ad litem’s

    participation under the facts and circumstances of this case.

          {¶37} Accordingly, appellant's Fifth, Sixth, and Seventh Assignments of Error are

    overruled.

                                                 IV.

          {¶38} In his Fourth Assignment of Error, appellant maintains the trial court erred

    by failing to take steps on behalf of the children where the guardian ad litem’s

    recommendations purportedly conflicted with the children’s wishes.1 We disagree.

          {¶39} Appellant directs us to Superintendence Rule 48(D)(8), which states:

    “When a guardian ad litem determines that a conflict exists between the child's best

    interest and the child's wishes, the guardian ad litem shall, at the earliest practical time,

    request in writing that the court promptly resolve the conflict by entering appropriate

    orders.”

          {¶40} Because Sup.R. 48 is a general guideline that does not have the force of

    statutory law, an appellant does not have any substantive right to enforce it. In re E.W.,

    Washington App.Nos. 10CA18, 10CA19, 10CA20. 2011-Ohio-2123, ¶ 15. Moreover,

1
   Appellant’s present wife, Sandra, testified that the boys have indicated to her that
they wish to reside in appellant’s household. Tr. at 30.
Delaware County, Case No. 10 CA F 11 0091                                              11


the record does not reflect that either appellant or the guardian ad litem reported to the

court this alleged conflict between the children’s best interests and the children’s

wishes. The Ohio Supreme Court has long recognized: “In the great majority of cases,

a complaining party must timely object to the error he feels is being committed, and

must, upon review, demonstrate that he has been prejudiced by its commission.” State

v. Williams (1974), 39 Ohio St.2d 20, 313 N.E.2d 859, at paragraph one of the

syllabus.

      {¶41} Accordingly, appellant's Fourth Assignment of Error is overruled.

                                          VIII.

      {¶42} In his Eighth Assignment of Error, appellant maintains the trial court erred

in determining that he was required to demonstrate a change in circumstances before

the termination of the parties’ shared parenting plan. We disagree.

      {¶43} Appellant essentially challenges the trial court’s reliance on Fisher v.

Hasenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007-Ohio-5589, wherein the Ohio

Supreme Court held, at the syllabus: “A modification of the designation of residential

parent and legal custodian of a child requires a determination that a ‘change in

circumstances’ has occurred, as well as a finding that the modification is in the best

interest of the child.”

      {¶44} Appellant maintains that Fisher is inapplicable to the case sub judice, as

appellant herein was seeking a “termination” of shared parenting, as opposed to a

“modification.” Nonetheless, as per our analysis of appellant’s First and Second

assigned errors, supra, we find no reversible error in the trial court’s interpretation of

the requirement of change in circumstances.
Delaware County, Case No. 10 CA F 11 0091                                                 12


       {¶45} Accordingly, appellant's Eighth Assignment of Error is overruled.

                                             IX.

       {¶46} In his Ninth Assignment of Error, appellant contends the trial court erred in

deciding, on the merits, that he had failed to demonstrate a change in circumstances

for purposes of shared parenting. We disagree.

       {¶47} Our general standard of review in assessing the disposition of child-

custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71,

73-74. Furthermore, as an appellate court reviewing evidence in custody matters, we

do not 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, Stark App.No. 2001 CA00039, 2001-Ohio-1386. In proceedings

involving the custody and welfare of children, the power of the trial court to exercise

discretion is peculiarly important. See Thompson v. Thompson (1987), 31 Ohio App.3d

254, 258, 511 N.E.2d 412, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106

N.E.2d 772.

       {¶48} Civ. R. 41(B)(2) provides, in pertinent part:

       {¶49} “After the plaintiff, in an action tried by the court without a jury, has

completed the presentation of the plaintiff's evidence, the defendant, * * * may move for

a dismissal on the grounds that upon the facts and the law, the plaintiff has shown no

right to relief.”

       {¶50} Civ.R. 41(B)(2) thus permits a defendant in a nonjury action to move for

dismissal of the action after the close of the plaintiff's case. Civ.R. 41(B)(2) specifically
Delaware County, Case No. 10 CA F 11 0091                                                13


provides the trial court may consider both the law and the facts. Therefore, under the

rule, the trial judge, as the trier of fact, does not view the evidence in a light most

favorable to the plaintiff, but instead actually determines whether the plaintiff has

proven the necessary facts by the appropriate evidentiary standard. See L.W.

Shoemaker, M.D., Inc. v. Connor (1992), 81 Ohio App.3d 748, 612 N.E.2d 369; Harris

v. Cincinnati (1992), 79 Ohio App.3d 163, 607 N.E.2d 15. Where the plaintiff's evidence

is insufficient to sustain plaintiff's burden in the matter, the trial court may dismiss the

case. Levine v. Beckman (1988), 48 Ohio App.3d 24, 27, 548 N.E.2d 267, (citations

and emphasis omitted). A trial court's ruling on a Civ.R. 41(B)(2) motion will be set

aside on appeal only if it is erroneous as a matter of law or against the manifest weight

of the evidence. Ogan v. Ogan (1997), 122 Ohio App.3d 580, 583, 702 N.E.2d 472,

(citation omitted).

      {¶51} R.C. 3109.04 does not define “change in circumstances.” Ohio courts

have held that the phrase is intended to denote “an event, occurrence, or situation

which has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh

(2000), 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551, citing Wyss, supra, at 416.

      {¶52} Appellant has asserted the following summary of developments as the

basis for a finding of change in circumstances: Appellee has been “openly hostile and

belligerent” in front of the boys. Appellant’s Brief at 24. There has been a “marked

deterioration in the parties’ communication and cooperation.” Appellant’s Brief at 25.

Appellee refused to allow the boys to play hockey during the 2007-2008 season

because appellant would have been their coach that year. Appellee did not cooperate

in transporting C.R. and C.R. to hockey games and practices for much of the 2008-
Delaware County, Case No. 10 CA F 11 0091                                            14


2009 season. Appellee has blocked cell phones so that appellant cannot reach the

boys via that means of communication. The boys have matured into their teenage

years and have more understanding of the realities of living with one parent versus the

other. Finally, appellant contends the evidence shows the boys have not had adequate

supervision.

      {¶53} However, upon review of the record, we are not inclined to find an abuse

of discretion or substitute our judgment for that of the trial court in its rejection of

appellant's claim of a change in circumstances and the court’s resultant Civ.R. 41(B)(2)

dismissal.

      {¶54} Accordingly, appellant's Ninth Assignment of Error is overruled.

                                        X., XI.

      {¶55} In his Tenth and Eleventh Assignments of Error, appellant contends the

trial court erred in dismissing appellant’s shared parenting termination motion without

hearing from the guardian ad litem and without interviewing the children, and that the

trial court’s decision was erroneous, against the manifest weight of the evidence, and

an abuse of discretion.

      {¶56} We find the remaining arguments set forth in appellant’s brief at this

juncture have been previously addressed herein by this Court, particularly in our

redress of assigned errors Five, Six, Seven, and Nine.

      {¶57} Accordingly, appellant's Tenth and Eleventh Assignments of Error are

overruled.
Delaware County, Case No. 10 CA F 11 0091                                           15


      {¶58} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Delaware County, Ohio, is affirmed.


By: Wise, P. J.

Edwards, J., and

Delaney, J., concur.



                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
JWW/d 0613
Delaware County, Case No. 10 CA F 11 0091                                 16


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT



SCOTT RICE                             :
                                       :
       Plaintiff-Appellant             :
                                       :
-vs-                                   :       JUDGMENT ENTRY
                                       :
FAITH RICE                             :
                                       :
       Defendant-Appellee              :       Case No. 10 CA F 11 0091




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Delaware

County, Ohio, is affirmed.

       Costs assessed to appellant.




                                       ___________________________________


                                       ___________________________________


                                       ___________________________________

                                                       JUDGES
