[Cite as Logan v. Holcomb, 2013-Ohio-2047.]




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




JENNIFER LOGAN,

        PLAINTIFF-APPELLANT,                            CASE NO. 9-12-61

        v.

RICHARD HOLCOMB,                                        OPINION

        DEFENDANT-APPELLEE.




                Appeal from Marion County Common Pleas Court
                                 Family Court
                          Trial Court No. 05 PC 0417

                                    Judgment Affirmed

                             Date of Decision: May 20, 2013




APPEARANCES:

        Ted I. Coulter for Appellant

        J.C. Ratliff and Jon L. Jenson for Appellee
Case No. 9-12-61



ROGERS, J.

      {¶1} Plaintiff-Appellant, Jennifer Logan, appeals the judgment of the

Marion County Court of Common Pleas, Family Division, terminating her shared

parenting plan with Defendant-Appellee, Richard Holcomb, naming Holcomb as

the residential parent of the couple’s minor child, A.H., and finding Logan in

contempt for denying Holcomb’s parental time. On appeal, Logan argues that the

trial court erred by: (1) finding that a change in circumstances pursuant to R.C.

3109.04(E)(1)(a) occurred; (2) finding that the termination of the parties’ shared

parenting plan and naming of A.H. as residential parent was in the best interest of

A.H.; (3) failing to consider whether the harm likely to be caused by a change of

environment was outweighed by its advantages; and (4) finding that Logan

continuously and willfully denied Holcomb’s parenting time and was responsible

for his attorney fees. For the reasons that follow, we affirm the trial court’s

judgment.

      {¶2} On April 28, 2011, the trial court adopted a shared parenting plan

regarding the parties’ rights and responsibilities as they relate to care of A.H.

Under the plan, Logan was deemed the primary residential parent while Holcomb

was entitled to visitation on alternating weekends and every Thursday from 4:00

p.m. to 7:30 p.m. On January 19, 2012, Holcomb filed a motion to hold Logan in

contempt of court for violating the visitation provision of the shared parenting

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plan. Despite the motion, the trial court did not issue an order to appear in

accordance with R.C. 2705.031(C). Nevertheless, on January 30, 2012, Logan’s

attorney entered an appearance on her behalf.

      {¶3} On April 26, 2012, Holcomb filed a motion to terminate the parties’

shared parenting plan. Shortly thereafter, Logan responded with a motion to

modify the shared parenting plan to reduce Holcomb’s visitation time, or, in the

alternative, to terminate the plan.    The trial court conducted a hearing on

September 17, 2012 to resolve the competing motions. During the hearing, the

following relevant evidence was adduced.

      {¶4} Holcomb called Logan as though on cross-examination. According to

Logan, since the imposition of the shared parenting plan, she had moved twice but

not informed Holcomb of her new address. At the time of the hearing, Logan

lived in Nevada, Ohio, and she acknowledged that neither her family members nor

friends live nearby. She also indicated that A.H. did not have any friends in the

neighborhood surrounding the house.

      {¶5} As to her financial position, Logan testified that she was fired in

October 2011 because she failed a drug test. Due to her termination, Logan’s only

source of income was a biweekly unemployment benefit of $236.00.          Logan

indicated that the monthly bills she incurred were greater than this limited




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unemployment compensation and that she had previously received a shutoff notice

for her electricity.

       {¶6} Logan stated that A.H. was experiencing some difficulties in school.

He was held back a year in the first grade and has displayed difficulties with

reading.    Further, A.H. had 15 absences and four disciplinary issues in the

previous year, including one school suspension. Further, A.H. was not involved in

any extracurricular activities. Logan acknowledged that all of these difficulties

occurred while she was A.H.’s primary residential parent.

       {¶7} In regard to Holcomb’s visitation, Logan admitted that she had

previously denied Holcomb’s visitation on several occasions.       One relevant

exchange proceeded as follows:

       Q: So from October 14th until February 9th [Holcomb] wasn’t
       able to get visitation until he came to court, correct?

       A:    Yes.

       Q: Then even after he started to get visitation in February, you
       would agree with me that during the month of April, the entire
       month of May, you would not allow him to have a Thursday mid-
       week visitation, would you? Ma’am?

       A:    Every other Thursday, no.

       Q: I’m going to ask you that – I had you refer to that to refresh
       your memory, but I’m asking you –

       A:    Oh, okay.

       Q:    - from April, from April and May –

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       A:    Correct.

       Q:    - he did not get any Thursday visitation, correct?

       A:    Not every Thursday, no, he did not. Tr., p. 61-62.

Similar exchanges occurred regarding other times in which Logan denied

Holcomb’s visitation.     Logan explained that she denied visitation on some

occasions because A.H. had a school play, was being punished for misbehavior, or

was sick. She further testified that Holcomb did not show up on several occasions

for his visitation.

       {¶8} Logan indicated that she would not accept the visitation schedule she

requested for Holcomb in her motion to modify the shared parenting plan. She

explained her reasoning as follows:

       Q: * * * Would you feel that you were part of your son’s life if
       your visitation was only Saturday from 11:00 to 5:00 or 6:00?

       A:    Yes, I would.

       Q:    You’d take that schedule?

       A:    Being a mother? No, I wouldn’t.

       Q: Do you think there’s a difference between being a mother and
       being a father?

       A: Yes, I do. I mean, I’ve never been a father. I’ve only been a
       mother, so –

       Q: Do you think as a mother, that you should be entitled to more
       visitation?

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       A:   Being a mother, yes, I do. Tr., p. 76.

       {¶9} Holcomb then took the stand. He testified that he had lived in the

same house in La Rue, Ohio for eight years and that he shares the house with his

live-in girlfriend and her teenage daughter.      Holcomb stated that his parents,

grandparents, and sister all live within a short distance of the house and that A.H.

has a couple of friends in the neighborhood.

       {¶10} Like Logan, Holcomb testified that he was unemployed. He said that

he was attending school for robotic engineering. As a result, Holcomb’s live-in

girlfriend was primarily responsible for the bills from her income as an employee

at Hardin Hospital. Holcomb indicated that if a job did not materialize for him

after graduation, he would return to his work as a laborer for his father’s business.

       {¶11} Holcomb testified that he played various sports, including baseball,

with A.H. and that he wanted his son to participate in sports and other

extracurricular activities. Holcomb also indicated that he was concerned about

A.H.’s educational progress. To facilitate A.H.’s education, Holcomb purchased a

LeapFrog learning device for him, but Holcomb testified that it was not used when

A.H. went to Logan’s house. Holcomb said that he did not attend parent-teacher

conferences because he was never informed of them.

       {¶12} Holcomb confirmed that he was “denied a significant part of [his]

visitation,” including on Christmas, and that Logan did not inform him of her

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address changes. Tr., p. 90. He specifically testified as follows regarding one

denial of his visitation:

       Q: And there was some time period then when you went to [the
       parties’ agreed pickup location] and [Logan] wasn’t there?

       A: Yes, I went to pick [A.H.] up on one of my Thursday
       visitations and I texted her and asked her if she was sending him out
       and she replied by saying, no, he’s got a bunch of school work and
       we’ve moved to Nevada and you don’t know where we live, good
       luck getting him. Tr., p. 93.

Holcomb also testified regarding his attempts to exercise his visitation:

       Q: So what were your – what attempts did you try to make to get
       your visitation then?

       A: I had went to – I had texted her and called her, went to her
       mom and dad’s house on days that I was supposed to get him.

       Q: When you tried to get him in October, you said – let’s say the
       first time, then, you were denied visitation in October, what attempts
       do you believe you made to get your son on that first time?

       A: I had came [sic] and she had come out and told me, argued with
       me about his living arrangements, and then I got in the truck and
       took off at that time. Tr., p. 94.

According to Holcomb, the consistent denial of his visitation led him to “kind of

give up on it knowing that [Logan] wasn’t going to give [A.H.] to [him].” Tr., p.

98.

       {¶13} Holcomb said that he did not cast Logan in a negative light when

talking to A.H. He also indicated that he never lost interest in seeing his son.

Further, Holcomb testified that he believed that he could do a “better job” as

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A.H.’s primary residential parent than Logan. Tr., p. 110. Still, he wanted Logan

to retain visitation because he believed that A.H. needed both parents in his life.

       {¶14} Additionally, Holcomb testified to Logan’s propensity for calling the

police while A.H. is in Holcomb’s care:

       Q: Anything else that you think needs to be brought to the Court’s
       attention regarding this matter?

       A: Just the fact that [Logan] calls the cops over everything. I
       mean, it’s stated in there the one time she had called the cops and
       said that she could not have any contact with [A.H.] and she was
       worried about his well-being, whenever the sheriff wrote it right in
       his report that she had actually spoke [sic] to [A.H.] right on the
       phone before she had called and filed her report.
            And then another time she had come [sic] out and tried to get
       him from my house because I had left him with my girlfriend while I
       was working for a few hours, and she brought her boyfriend out and
       her come [sic] out and she called the cops saying that my house was
       leaking water in his room and it was unsuitable for a child. And
       when the cops come [sic] out, because she called the cops, and
       investigated the room and said there was nothing wrong with it and
       told her, there’s nothing you can do and made them leave. Tr., p.
       112-13.

       {¶15} On cross-examination, Holcomb acknowledged that he did not

contact A.H.’s school to discover the times for parent-teacher conferences. He

also admitted that during some of his visitations, A.H. stayed at the house of

Holcomb’s father. Further, Holcomb testified that he was previously charged with

domestic violence and pleaded guilty to disorderly conduct.

       {¶16} Holcomb also discussed an incident in which A.H. was allegedly

injured. The following pertinent exchange about this incident occurred:

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       Q: Can you explain the incident as far as the trampoline goes and
       how he ended up with the punch in the chest?

       A:   We was [sic] wrestling on the trampoline.

       Q:   And?

       A:   And what?

       Q:   What happened that he got a punch in the chest?

       A: You make it sound as though I was punching him * * *. We
       was [sic] wrestling around.

       Q:   That’s why I’m asking, for you to tell me what happened.

       A: Nothing. We was running around, playing, jumping on the
       trampoline, pretend wrestling.

       Q:   But isn’t it true that you did him, that you did punch him?

       A:   Wrestling around, yes.

       Q: No, I didn’t say wrestling, I said punching him. Did you punch
       him?

       A:   I might have tapped him.

       Q:   Tapped him? Did it leave a bruise?

       A:   A pea-sized bruise. Tr., p. 126-27.

       {¶17} Holcomb further discussed the living arrangements in his house. The

house is actually a trailer with three small bedrooms of which A.H. had one to

himself. He also indicated that lived in the house rent-free.




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       {¶18} Holcomb admitted that he did not know of several of A.H.’s medical

ailments. He also said that on a previous occasion, he refused to pay A.H.’s

medical bills. Further, Holcomb testified that his girlfriend and mother had paid

some of his child support obligations for A.H.

       {¶19} After Holcomb’s offered his testimony, he rested.

       {¶20} Logan then took the stand a second time to present her own case-in-

chief. She discussed a safety plan that she received from Children’s Services. The

plan instructed Logan to not allow Holcomb to have any contact with her or A.H.,

which precluded her from allowing Holcomb’s visitation for a week. However,

after investigating Holcomb for a week due to the trampoline incident described

above, Child Services withdrew the safety plan and Logan said that she restarted

allowing Holcomb to have his visitation.

       {¶21} Logan explained her basis for the termination of the shared parenting

plan as follows:

       I feel that [Holcomb] is not – like he stated his self [sic], he’s given
       up on [A.H.]. He’s given up coming to get him. He – he puts other
       people in front of [A.H.]. He doesn’t hold [A.H.] up to where he
       needs to be and [A.H.] comes home and he’s upset about things. Tr.,
       p. 157.

She also testified that her communication with Holcomb has completely broken

down and that his family members have interfered with their relationship.




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       {¶22} On cross-examination, Logan admitted that she has spoken

unfavorably of Holcomb with A.H.         She also acknowledged that she audio

recorded her conversations with A.H. about his weekend visitations with

Holcomb. Once Logan offered her testimony, she rested.

       {¶23} The trial court admitted into evidence the assessment prepared by the

Family Services Coordinator after its investigation, which included interviews

with A.H., Logan, and Holcomb. The assessment indicated that A.H. was angry

with his situation and “expressed that he would like to live with his dad.” (Court’s

Exhibit 1, p. 7). The assessment also stated that “[b]ased on [Logan]’s notes she

was non-responsive to some of [Holcomb]’s attempts to execute his parenting time

with [A.H.].”    (Id. at p. 8).    After its investigation, the Family Services

Coordinator recommended that the shared parenting plan continue, but that

Holcomb no longer have Thursday visitation time due to A.H.’s academic and

behavioral issues.

       {¶24} On October 1, 2012, the trial court issued its ruling on the parties’

competing motions. It found that Logan denied Holcomb’s visitation rights “on

numerous occasions” from October 2011 to February 2012 and that she failed to

inform him of her changes in address. (Docket No. 73, p. 2). As a result, the trial

court found that Logan was in contempt of court and ordered that she pay

Holcomb’s attorney fees for bringing the contempt motion.


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       {¶25} The trial court also ordered that the parties’ shared parenting plan be

terminated. In doing so, the trial court applied R.C. 3109.04(E)(2)(c), extensively

discussed its consideration of the factors contained in R.C. 3109.04(F)(1), and

found that the termination of the plan was in A.H.’s best interests. The trial court

also found that a change in circumstances, as manifested by the parties’ inability to

communicate and effectuate the shared parenting plan’s visitation provisions,

supported the termination of the plan. In addition to the termination of the shared

parenting plan, the trial court named Holcomb the residential parent and legal

custodian of A.H. while granting Logan parenting time in accordance with Loc.R.

32.

       {¶26} Logan timely appealed the trial court’s judgment, presenting the

following assignments of error for our review.

                            Assignment of Error No. I

       IN SUPPORT OF THE TERMINATION OF THE PRIOR
       PARENTING PLAN FOR THE MINOR CHILD, THE TRIAL
       COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION BY DETERMINING THERE WAS A
       SUBSTANTIAL       AND SUFFICIENT “CHANGE   IN
       CIRCUMSTANCES” PURSUANT TO OHIO REVISED CODE
       3109.04(E)(1)(A).

                            Assignment of Error No. II

       IN SUPPORT OF THE MODIFICATION OF THE PRIOR
       PARENTAL RIGHTS AND RESPONSIBILITIES FOR THE
       MINOR CHILDREN [SIC] AND PURSUANT OF [SIC] OHIO
       REVISED CODE 3109.04(E)(1)(A) AND 3109.04(E)(1), THE

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       TRIAL COURT ERRED AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AND ABUSED ITS
       DISCRETION    IN   DETERMINING  “THAT   THE
       MODIFICATION IS NECESSARY TO SERVE THE BEST
       INTEREST OF THE CHILD.”

                           Assignment of Error No. III

       IN SUPPORT OF THE TERMINATION OF THE PRIOR
       SHARED PARENTING PLAN FOR THE MINOR CHILD
       AND PURSUANT OF [SIC] OHIO REVISED CODE
       3109.04(E)(1)(A)(III), THE TRIAL COURT ERRED AND
       ABUSED ITS DISCRETION BY DETERMINING THAT
       “THE HARM LIKELY TO BE CAUSED BY A CHANGE OF
       CIRCUMSTANCES           IS  OUTWEIGHED   BY  THE
       ADVANTAGE THAT A CHANGE OF ENVIRONMENT
       WOULD HAVE ON THE MINOR CHILD.”

                           Assignment of Error No. IV

       IN SUPPORT OF THE FINDING OF THE PLAINTIFF-
       APPELLANT IN CONTEMPT OF COURT, THE TRIAL
       COURT ERRED AND ABUSED ITS DISCRETION BY
       DETERMINING THAT THE PLAINTIFF-APPELLANT HAD
       CONTINUOUSLY AND WILLFULLY DENIED THE
       DEFENDANT-APPELLEE   PARENTING    TIME   AND
       SHOULD PAY ATTORNEY FEES.

       {¶27} Due to the nature of the assignments of error, we elect to address

Logan’s first and third assignments of error together.

                         Assignments of Error Nos. I & III

       {¶28} In her first assignment of error, Logan argues that the trial court erred

in finding that there was a change of circumstance under R.C. 3109.04(E)(1)(a).

Meanwhile, in her third assignment of error, Logan contends that the trial court


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erred in failing to consider whether the harm of naming Holcomb as the residential

parent was outweighed by its advantages pursuant to R.C. 3109.04(E)(1)(a)(iii).

Because we find that R.C. 3109.04(E)(2)(c), and not R.C. 3109.04(E)(1)(a),

applies to this matter, we disagree with Logan.

                                 Standard of Review

      {¶29} Decisions concerning child custody matters rest within the sound

discretion of the trial court.   Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

Custody determinations “are some of the most difficult and agonizing decisions a

trial judge must make,” and, therefore, appellate courts grant “wide latitude” to

their consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418

(1997).   As such, a reviewing court will not reverse a trial court’s decision

regarding child custody absent an abuse of discretion. Masters v. Masters, 69

Ohio St.3d 83, 85 (1994). A trial court will be found to have abused its discretion

when its decision is contrary to law, unreasonable, not supported by the evidence,

or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 17-18

(2d Dist.). When applying the abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court.      Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). Further, in applying abuse of discretion

review here, we are mindful that “[w]hile a trial court’s discretion in a custody




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modification proceeding is broad, it is not absolute, and must be guided by the

language set forth in R.C. 3109.04.” Miller at 74.

                        R.C. 3109.04(E)(1)(a) and (E)(2)(c)

       {¶30} There is disagreement among the parties as to which section of the

Revised Code controls this matter. Logan suggests that R.C. 3109.04(E)(1)(a)

applies here. This section provides as follows:

       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. In
       applying these standards, the court shall retain the residential parent
       designated by the prior decree or the prior shared parenting decree,
       unless a modification is in the best interest of the child and one of
       the following applies:

       (i) The residential parent agrees to a change in the residential
       parent or both parents under a shared parenting decree agree to a
       change in the designation of residential parent.

       (ii) The child, with the consent of the residential parent or of both
       parents under a shared parenting decree, has been integrated into the
       family of the person seeking to become the residential parent.

       (iii) The harm likely to be caused by a change of environment is
       outweighed by the advantages of the change of environment to the
       child. R.C. 3109.04(E)(1)(a).

Under this provision, trial courts must determine three things: “(1) Has there been

a change in circumstances? (2) Is this modification in the best interest of the child?


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(3) Will the harm that will result from the change be outweighed by the benefits

that will result from the change?” Clark v. Smith, 130 Ohio App.3d 648, 653 (3d

Dist. 1998). In Eatherton v. Behringer, 3d Dist. No. 13-11-12, 2012-Ohio-1584,

we found “that the trial court must independently determine each step within R.C.

3109.04(E)(1)(a).” (Emphasis added.) Id. at ¶ 14.

       {¶31} Conversely, Holcomb points us to R.C. 3109.04(E)(2)(c), which

provides, in relevant part, as follows:

       (E)(2) In addition to a modification authorized under division (E)(1)
       of this section:

       ***

       (c) 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 in interest of the children. The court may terminate a prior final
       shared parenting decree that includes a shared parenting plan
       approved under division (D)(1)(a)(ii) or (iii) of this section if it
       determines, * * * upon the request of one or both parents, that shared
       parenting is not in the best in interest of the children.

By R.C. 3109.04)(E)(2)(c)’s plain terms, it merely requires that the party seeking a

termination of a shared parenting plan prove that the termination is in the best

interests of the minor child. See Kougher v. Kougher, 194 Ohio App.3d 703,

2011-Ohio-3411, ¶ 18 (7th Dist.) (“The appellate courts that have dealt with this

specific question have concluded that R.C. 3109.04(E)(2)(c), clearly labeled in the

statute as a different procedure from that detailed in R.C. 3109.04(E)(1)(a),

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requires only that the termination of a shared-parenting decree be in the best

interests of the child.”). As such, when R.C. 3109.04(E)(2)(c) applies, “the trial

court is not required to determine the existence of a change of circumstances prior

to the termination of a shared parenting plan.” (Emphasis sic.) Green v. Richards,

6th Dist. No. WD-12-039, 2013-Ohio-406, fn. 1; accord Curtis v. Curtis, 2d Dist.

No. 25211, 2012-Ohio-4855, ¶ 7; Nolan v. Nolan, 4th Dist. No. 11CA3444, 2012-

Ohio-3736, ¶ 43; In re J.L.F., 8th Dist. No. 97405, 2012-Ohio-1748, ¶ 4; In re

K.R., 11th Dist. No. 2010-T-0050, 2011-Ohio-1454, ¶ 47.          The trial court is

likewise not required to determine the balance of harm and benefits that comes

with changing the child’s residential parent. See Kougher at ¶ 25 (finding that

R.C. 3109.04(E)(2)(c) only requires that a party show that a termination of the

shared parenting plan is in the best interest of the child).

       {¶32} Here, both parties requested the termination of their shared parenting

plan in their motions.     Further, the trial court indicated that it applied R.C.

3109.04(E)(2)(c) in rendering its decision and explicitly ordered the termination of

the parties’ shared parenting plan. As a result, we are compelled to find that R.C.

3109.04(E)(2)(c) applies to this matter and that the trial court was not required to

find either a change in circumstances or that the harm of a change in residential

parent was outweighed by its advantages. See Poshe v. Chisler, 11th Dist. No.

2010-L-017, 2011-Ohio-1165, ¶ 21 (finding that “[d]ue to the clear and plain


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language of the magistrate’s finding and the trial court’s entry, the shared

parenting plan was terminated”). Since these issues are immaterial to the trial

court’s ultimate determination, Logan’s first and third assignments of error

challenge findings that have no bearing on the trial court’s ruling.1                              See id.

(overruling assignment of error challenging termination of a shared parenting plan

due to the trial court’s failure to assess a change in circumstances on the grounds

that R.C. 3109.04(E)(2) applied and there was no need for such an analysis). As

such, we are unable to find any reversible error in the trial court’s judgment on

these bases.

         {¶33} Accordingly, we overrule Logan’s first and third assignments of

error.

                                    Assignment of Error No. II

         {¶34} In her second assignment of error, Logan argues that the trial court

erred in finding that the termination of the parties’ shared parenting agreement and

the naming of Holcomb as residential parent were in A.H.’s best interests. We

disagree.


1
  The trial court, relying on In re Illig, 3d Dist. No. 13-08-26, 2009-Ohio-916, indicated that it had to
consider whether a change in circumstance occurred before deciding to terminate the shared parenting plan.
However, Illig is inapposite here because it involved the application of R.C. 3109.04(E)(2)(b) and its
modification of the terms contained in a shared parenting plan. Id. at ¶ 15-16. Since Illig did not implicate
the termination of a shared parenting plan, our decision there is distinguishable from this matter.
Similarly, Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, does not apply here either because its
holding only implicates the modification of shared parenting plans under R.C. 3109.04(E)(1)(a). See In re
K.R., at ¶ 48 (distinguishing Fisher on the grounds that the matter involved the termination of a shared
parenting plan, not a modification of terms).

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      {¶35} When      terminating   a    shared   parenting    plan   under     R.C.

3109.04(E)(2)(c), the trial court must consider the best interests of the child. To

appropriately perform this analysis, courts must take into account the factors

outlined in R.C. 3109.04(F)(1), which are 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 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

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       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 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.

The trial court is also empowered to consider any other relevant factor. R.C.

3109.04(F)(1).

       {¶36} After deciding to terminate a shared parenting plan, “the court shall

proceed and issue a modified decree for the allocation of parental rights and

responsibilities for the care of the children under the standards applicable under

divisions (A), (B), and (C) of this section as if no decree for shared parenting had

been granted and as if no request for shared parenting ever had been made.” R.C.

3109.04(E)(2)(d). Pursuant to R.C. 3109.04(B)(1), trial courts are required to


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“take into account that which would be in the best interest of the children” when

determining how to allocate parental rights and responsibilities.

                     The Trial Court’s Best Interests Analysis

       {¶37} When reviewing a trial court’s best interests analysis, we need only

address two items: “(1) [whether] the trial court considered all of the necessary

factors listed in R.C. 3109.04(F)(1); and (2) [whether] there is competent, credible

evidence supporting the trial court’s conclusion that it was in the children’s best

interest to designate [the other parent] as residential parent.” Heiser v. Heiser, 3d

Dist. No. 10-07-02, 2007-Ohio-5487, ¶ 27. Here, the first prong of our inquiry is

satisfied because the trial court explicitly indicated that it considered the factors

contained in R.C. 3109.04(F)(1) before terminating the parties’ shared parenting

plan. Indeed, the trial court separately addressed each item of R.C. 3109.04(F)(1)

in its judgment entry.

       {¶38} Further, we find that the second prong of our inquiry is satisfied.

Based on the evidence adduced at the hearing, A.H.’s current living situation has

resulted in slow educational development and several serious disciplinary issues at

school. Moreover, the record is replete with evidence supporting the trial court’s

finding that Logan has consistently denied Holcomb’s parenting time and that the

parties have a hostile relationship. The record also supports the trial court’s

finding that Logan has interfered with the development of Holcomb’s and A.H.’s


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relationship. She has talked negatively about Holcomb, concealed her address,

failed to discuss A.H.’s education with Holcomb, and has sought to implicate

Holcomb in negative conduct by calling the police multiple times and

interrogating her son after weekend visits.       Finally, according to the Family

Services assessment, A.H. is angry and has an interest in living with Holcomb,

with whom he has a good relationship. Based on this evidence, we are unable to

find that the trial court abused its discretion in terminating the shared parenting

plan and naming Holcomb as the residential parent.

       {¶39} On appeal, Logan points to several portions of the record indicating

that the termination of the shared parenting plan and naming of Holcomb as

residential parent is not in A.H.’s best interests. She also claims that it was

erroneous for the trial court to give more weight to Holcomb’s testimony than her

own. While there is indeed evidence suggesting that A.H.’s best interests would

be best served if Logan was the residential parent or shared parenting continued, it

is not so overwhelming as to suggest that the trial court abused its discretion in

concluding to the contrary. See Weese v. Griesheimer, 4th Dist. No. 98CA2436

(Mar. 11, 1999) (“Upon review, we find strong evidence supporting both positions

[as they relate to the child’s best interests]. Bearing in mind that we are not free to

substitute our judgment for that of the trial court, we find that the trial court did

not err [in selecting one of the positions].”). Also, the trial court was well within


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its discretion to grant greater weight to Holcomb’s testimony over Logan’s

testimony. See Sellers v. Sellers, 4th Dist. No. 09CA45, 2010-Ohio-3712, ¶ 17

(“We observe that appellant’s main complaint appears to be that the trial court did

not credit her witnesses and their testimony.         As we have noted, however,

credibility, especially in child custody matters, is a matter reserved for the trier of

fact and we will not second-guess credibility determinations.”). As such, we find

Logan’s arguments to be unavailing.

       {¶40} Accordingly, we overrule Logan’s second assignment of error.

                             Assignment of Error No. IV

       {¶41} In her fourth assignment of error, Logan contends that the trial court

improperly found that she was in contempt of court for denying Holcomb’s

parenting time. She advances both procedural and substantive grounds for her

argument. First, Logan argues that the contempt finding was improper because the

trial court did not issue an order to appear under R.C. 2705.031(C). Second, she

asserts since Holcomb did not offer corroborating evidence for his own testimony,

he failed to provide clear and convincing evidence to support a contempt finding.

We disagree with both of Logan’s arguments.

                           Logan’s Procedural Argument

       {¶42} Pursuant to R.C. 2705.031, a contempt action is appropriate where a

party has been denied his parenting time under a shared parenting plan. Both the


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statute for contempt proceedings arising from the denial of parenting time and

“[t]he tenets of procedural due process mandate that the alleged contemnor receive

notice of the charges through a court.” Sancho v. Sancho, 114 Ohio App.3d 636,

641 (3d Dist. 1996), citing R.C. 2705.031(C) (“In any contempt action initiated

pursuant to division (B) of this section, the accused shall appear upon the

summons and order to appear that is issued by the court.”). But, procedural due

process rights are waivable and a party’s failure to challenge a lack of notice of

contempt charges in the trial court effectuates a waiver. Id., citing D.H. Overmyer

Co. of Ohio v. Frick Co., 405 U.S. 174, 92 S.Ct. 775 (1971). Here, Logan did not

object to the lack of notice regarding the contempt charges brought by Holcomb

and in fact she proceeded to defend against the charges at the hearing. As such,

she has waived this issue and we are unable to find that the lack of notice gives

rise to a reversal. Id. at 642; accord State v. Miller, 5th Dist. No. 02 CA 16, 2003-

Ohio-948, ¶ 31.

                          Logan’s Substantive Argument

       {¶43} A finding of contempt must be based on clear and convincing

evidence. Pugh v. Pugh, 15 Ohio St.3d 136, 139 (1984). Clear and convincing

evidence is “[t]he measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the allegations sought to be

established.” In re Estate of Haynes, 25 Ohio St.3d 101, 103 (1986). This


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standard is “intermediate, being more than a mere preponderance, but not to the

extent of such certainty as required beyond a reasonable doubt in criminal cases.

It does not mean clear and unequivocal.” Id. at 104. Additionally, when “the

degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross v.

Ledford, 161 Ohio St. 469, 477 (1954). Thus, we are required to determine

whether the trial court’s determination was supported by sufficient credible

evidence to satisfy the requisite degree of proof. In re McCann, 12th Dist. No.

CA2003-02-017, 2004-Ohio-283, ¶ 12.

      {¶44} The central thrust of Logan’s argument is that Holcomb did not

present clear and convincing evidence to support a contempt finding because he

failed to corroborate his own testimony that Logan denied him parenting time.

There are two flaws with this argument. First, Holcomb’s testimony about the

denial of his visitation time was confirmed by Logan’s own admissions in her

testimony. She acknowledged that on several occasions, she would not allow

Holcomb to take A.H. during visitations. This acknowledgment was confirmed in

the Family Services Coordinator’s assessment, which indicated that Logan’s notes

show she denied Holcomb’s parenting time on several occasions. Further, Logan

admitted that she purposefully kept her address from Holcomb and was


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confrontational with him on occasions that he sought to exercise his visitation

rights.     These admissions, combined with Holcomb’s extensive testimony

regarding the denial of his visitation and the Family Services Coordinator’s

assessment, constitute sufficient credible evidence to support the trial court’s

finding of contempt.

          {¶45} Second, Logan has not cited, and we cannot find, a case that requires

corroboration of a party’s testimony to satisfy the clear and convincing evidence

threshold. Indeed, Ohio courts, including the Supreme Court, have consistently

recognized that the testimony of a single witness can satisfy such a threshold.

E.g., Cross at 478 (“The mere number of witnesses * * * is not to be taken as a

basis for resolving disputed facts.”); Knox v. Knox, 7th Dist. No. 04 JE 24, 2006-

Ohio-1154, ¶ 52 (“The clear and convincing evidence standard may be met by the

testimony of a single witness.”); Baker v. Blevins, 162 Ohio App.3d 258, 2005-

Ohio-3664, ¶ 13 (2d Dist.) (“[A] party is not precluded from establishing a case by

clear and convincing evidence simply because there are conflicts in the testimony.

A court may choose * * * to believe the testimony of one witness over another.”).

In light of the flaws in Logan’s argument and because the record contains

sufficient credible evidence, from both Holcomb’s and Logan’s testimony, as well

as the Family Services Coordinator’s assessment, to support the trial court’s

judgment, we decline to second guess it or to disturb it on appeal.


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       {¶46} Accordingly, we overrule Logan’s fourth assignment of error.

       {¶47} Having found no error prejudicial to Logan, in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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