[Cite as Riddle v. Riddle, 2019-Ohio-4405.]




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




NATHAN RIDDLE,
                                                         CASE NO. 9-19-08
       PLAINTIFF-APPELLEE,

       v.

NICOLE RIDDLE,                                           OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                                 Family Division
                           Trial Court No. 18-DR-0027

        Judgment Affirmed in Part, Reversed in Part, Cause Remanded.

                            Date of Decision: October 28, 2019



APPEARANCES:

        Joel M. Spitzer for Appellant

        Todd A. Anderson for Appellee
Case No. 9-19-08



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Nicole Riddle (“Nicole”) appeals the judgment

of the Family Division of the Marion County Court of Common Pleas, raising

various challenges to the shared parenting plan ordered by the trial court. For the

reasons set forth below, the judgment of the trial court is affirmed in part and

reversed in part.

                          Facts and Procedural History

       {¶2} Nicole and Nathan Riddle (“Nathan”) were married on October 19,

2005. Tr. 5. Nicole and Nathan lived in Marion County for the first four years of

their marriage. Tr. 7. They left Marion County to live in Delaware County and then

Crawford County before returning to Marion County in 2010. Tr. 7. They both

lived in Marion County continuously until after Nathan and Nicole separated in

2017. Tr. 8. During this time, Nathan operated a barbershop in Marion County,

and Nicole, who worked in the mental health field, operated a practice in Marion

County. Tr. 10-11.

       {¶3} In between 2010 and 2017, four children were born as the issue of this

marriage. Tr. 5. Doc. 53. In between 2016 and 2017, Nathan and Nicole’s oldest

two children began attending Marion City Schools. Tr. 13. In October of 2017,

Nicole removed her children from the school system because she felt that God had

called her to homeschool them. Tr. 13, 15. Nicole testified that she and Nathan


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agreed on this decision. Tr. 307. Nathan, however, testified that she made this

decision without his agreement. Tr. 149.

       {¶4} On December 31, 2017, Nathan and Nicole separated. Tr. 91. Nathan

had already paid for the rent on their house in Marion County for January. Tr. 153.

On January 5, 2018, Nicole moved to her mother’s house in Crawford County and

took the four children with her. Tr. 4. Nathan remained in Marion County. Nathan

and Nicole worked out an arrangement in which Nathan had the children with him

on Tuesday nights, Thursday nights, and weekends. Tr. 27. Nicole testified that

she attempted to reconcile with Nathan and that she believed that he was a good

father to his children. Tr. 17-18.

       {¶5} On February 12, 2018, Nathan filed for a divorce. Doc. 1. At this

time, all four of Nathan and Nicole’s children were minors. Doc. 1. After February

12, 2018, Nicole stopped allowing Nathan visitation with the children at his

apartment as had been practiced under their prior arrangement. Tr. 31. She only

allowed him to see the children under her supervision at her mother’s house in

Crawford County. Tr. 31. Nicole testified that these actions were not in response

to Nathan filing for a divorce. Tr. 30.

       {¶6} In February of 2018, Nicole stopped homeschooling and enrolled her

children into a public school system in Crawford County. Tr. 13, 35, 294. She

enrolled the children in the school system the day after she consulted with her

divorce attorney. Tr. 35. As a child, Nicole had been enrolled in this same school

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system. Tr. 167. Nathan testified that Nicole had “hated” her experience there and

that he did not want his children in that school district. Tr. 167. He also testified

that Nicole did not consult with him before she enrolled the children in the local

school system in Crawford County. Tr. 167.

       {¶7} On September 10, 2018, Nathan filed a proposed shared parenting

plan with the trial court. Doc. 38. On October 3, 2018, the trial court held the final

hearing in this divorce proceeding. Tr. 50. After hearing the testimony of Nathan

and Nicole, the trial court issued a shared parenting order on January 4, 2019. Doc.

53. Nicole filed her notice of appeal on January 28, 2019. Doc. 60. On appeal, she

raises the following assignments of error:

                            First Assignment of Error

       The trial court erred and abused its discretion in not making a
       specific finding that its allocation of parental rights and
       responsibilities were in the best interest of the minor children and
       in not making a specific finding that the adopted shared parenting
       plan was in the best interest of the minor children pursuant to
       Rev. C. 3109.04(B)(1).

                           Second Assignment of Error

       The trial court erred and abused its discretion in adopting the
       plaintiff’s September 10, 2018 proposed shared parenting plan
       without a formal motion from the parties and erred and abused
       its discretion in adopting plaintiff’s December 14, 2018 ‘post-
       trial’ proposed shared parenting plan without a formal motion
       from the parties pursuant to Rev. C. 3109.04(D)(1)(a).




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                          Third Assignment of Error

      The trial court erred and abused its discretion in not only
      adopting the proposed shared parenting plan but also not
      considering the relevant factors in Rev. C. 3109.04(F)(2).

                         Fourth Assignment of Error

      The trial court erred and abused discretion in adopting the
      plaintiff’s September 10, 2018 proposed shared parenting plan
      because the September 10, 2018 proposed shared parenting plan
      was not submitted at a time less than 30 days prior to the hearing
      on the issue of the parental rights and responsibilities for the care
      of the children pursuant to Rev. C. 3109.04(G) and the trial court
      erred and abused its discretion in adopting the plaintiff’s
      December 14, 2018 ‘post-trial’ proposed shared parenting plan
      because the December 14, 2018 ‘post-trial’ shared parenting plan
      was not submitted at a time less than 30 days prior to the hearing
      on the issue of the parental rights and responsibilities for the care
      of the children and submitted after the evidentiary hearing on the
      issue of the parental rights and responsibilities for the care of the
      children pursuant to 3109.04(G).

                          Fifth Assignment of Error

      The trial court erred and abused its discretion in allocating all
      four of the minor children’s tax exemptions to the plaintiff.

                      Sixth Assignment of Error

      In support of the initial determination of parental rights and
      responsibilities for the minor child and pursuant of Ohio Revised
      Code 3109.04, the trial court erred against the weight of the
      evidence and abused its discretion in determining that the
      plaintiff-appellee should be granted custody.




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                       Seventh Assignment of Error

       The trial court erred and abused is discretion by not making a
       finding that the advantages of ordering the children back to
       Marion County outweighed the disadvantages.

For the sake of analytical clarity, we will consider the second assignment of error

prior to analyzing the other assignments of error.

                            Second Assignment of Error

       {¶8} Nicole argues that the trial court erred by compelling the parties to

submit shared parenting proposals in the absence of a motion from one of the parties

that requests shared parenting.

                                   Legal Standard

       R.C. 3109.04(D)(1)(a) reads, in its relevant part, as follows:

       Upon the filing of a pleading or motion by either parent or both
       parents, in accordance with division (G) of this section, requesting
       shared parenting and the filing of a shared parenting plan in
       accordance with that division, the court shall comply with division
       (D)(1)(a)(i), (ii), or (iii) of this section * * *.

(Emphasis added.) R.C. 3109.04(D)(1)(a).

                                   Legal Analysis

       {¶9} The express language of R.C. 3109.04(D)(1)(a) allows for a party to

request shared parenting in a “pleading or motion.” R.C. 3109.04(D)(1)(a). On

September 10, 2018, Nathan filed a proposed shared parenting plan. Doc. 38. The

opening lines of this document read, in its relevant part, as follows:



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       Now comes the Plaintiff, Nathan Riddle, by and through Counsel,
       and offers the following Proposed Shared Parenting Plan to the
       Court for review and approval. The Plaintiff hereby requests this
       Court to adopt this proposed shared parenting plan as an Order
       of the Court.

Doc. 38. Thus, Nathan, one of the parties to this action, expressly requested shared

parenting in a filing with the trial court. Nicole alleges that the trial court, at a status

conference on December 14, 2018, ordered each of the parties to submit proposed

shared parenting plans.      Appellant’s Brief, 10.       This order was after Nathan

requested shared parenting on September 10, 2018. Since Nathan requested a

shared parenting plan in compliance with R.C. 3109.04(D)(1)(a), Nicole’s second

assignment of error is overruled.

                               First Assignment of Error

       {¶10} Nicole argues that the trial court failed to make an express finding that

the allocation of parental rights was in the best interest of the children.

                                     Legal Standard

       {¶11} Because the appellant’s first and third assignments of error are similar

in nature, we will set forth one legal standard here to govern both of these alleged

errors. R.C. 3109.04(B)(1) governs the process of allocating parental rights and

responsibilities, reading, in its relevant part, as follows:

       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.

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(Emphasis added.) R.C. 3109.04(B)(1).

       {¶12} In determining whether a shared parenting plan is in the best interest

of the children, R.C. 3109.04(F)(2) provides a list of non-exclusive factors that a

trial court is to consider and then directs a trial court to also “consider all relevant

factors, including, but not limited to, the factors enumerated in division (F)(1) of

this section.” R.C. 3109.04(F)(2). R.C. 3109.04(F)(1) similarly contains a list of

non-exclusive factors that a trial court is to consider in the process of “determining

the best interest of a child” under R.C. 3109.04. R.C. 3109.04(F)(1).

       {¶13} Further, “[p]ursuant to Civ.R. 52, a trial court may enter general

judgment for the prevailing party.” Siefker v. Siefker, 3d Dist. Putnam No. 12-06-

04, 2006-Ohio-5154, ¶ 6. However, if “one of the parties in writing requests

otherwise * * *, the court shall state in writing the findings of fact found separately

from the conclusions of law.” Civ.R. 52. This provision of Civ.R. 52 exists “to aid

the appellate court in reviewing the record and determining the validity of the basis

of the trial court’s judgment.” Werden v. Crawford, 70 Ohio St.2d 122, 124, 435

N.E.2d 424 (1982).

       {¶14} If a party to the action did not “request findings of fact and

conclusions of law under Civ.R. 52,” then the appellate court is to “presume the

regularity of the proceedings at the trial level.” Siefker at ¶ 6, quoting Bunten v.

Bunten, 126 Ohio App.3d 443, 447, 710 N.E.2d 757 (3d Dist. 1998). In other words,


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“the reviewing court must presume that the trial court applied the law correctly * *

*.” Ratliff v. Ohio Dept. of Rehab. & Corr., 133 Ohio App.3d 304, 311-312, 727

N.E.2d 960 (10th Dist. 1999). Thus, “[a]s long as the trial court’s judgment is

supported by some competent and credible evidence, we must affirm.” Id.

                                    Legal Analysis

       {¶15} We begin our analysis by noting that Nicole did not request findings

of fact and conclusions of law from the trial court pursuant to Civ.R. 52. Without

this Civ.R. 52 motion, the trial court was permitted to enter a “general [judgment]

for the prevailing party.” Civ.R. 52. Wirt v. Wirt, 9th Dist. Wayne No. 95CA0041,

1996 WL 170362, *2 (Apr. 10, 1996) (holding that, in the absence of a Civ.R. 52

motion, a general judgment was sufficient where “the trial court analyzed evidence

* * *, which contains sufficient competent evidence to find that * * * a custody

modification was in the best interests of the children.”).

       {¶16} Even if Nicole had filed a Civ.R. 52 motion, the wording of R.C.

3109.04(B)(1) does not require the trial court to make an express finding that the

allocation of parental rights and responsibilities is in the children’s best interest.

Rather, R.C. 3109.04(B)(1) requires a trial to “take into account” what “would be

in the best interest of the children.” R.C. 3109.04(B)(1). R.C. 3109.04(F)(1)

provides a non-exclusive list of factors that a trial court is to consider in the process

of determining what is in the children’s best interest. R.C. 3109.04(F)(1).



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       {¶17} In its judgment entry, the trial court analyzed the facts of this case

under all of the factors listed in R.C. 3109.04(F)(1) in compliance with the statute.

Doc. 53. By considering each of these factors, the trial court “t[ook] into account”

what “would be in the best interest of the children” and did what was required under

R.C. 3109.04(B)(1). R.C. 3109.04(F)(1). Erwin v. Erwin, 3d Dist. Union No. 14-

05-45, 2006-Ohio-2661, ¶ (holding that under R.C. 3109.04(B)(1), appellate courts

“must examine the record to determine (1) that the trial court considered all of the

necessary factors listed in R.C. 3109.04(F) and (2) that there is competent, credible

evidence supporting the trial court's conclusion * * *.”). After reviewing the

evidence in the record, we do not find any reason to dispense with the applicable

presumption of regularity in the proceedings below. For these reasons, Nicole’s

first assignment of error is overruled.

                             Third Assignment of Error

       {¶18} Nicole argues that the trial court, in adopting the contested shared

parenting plan, failed to consider the relevant factors listed in R.C. 3109.04(F)(2).

                                   Legal Standard

       {¶19} We herein reincorporate the legal standard set forth under the first

assignment of error.

                                   Legal Analysis

       {¶20} We begin our analysis by noting that Nicole did not request findings

of fact or conclusions of law from the trial court pursuant to Civ.R. 52. In a divorce

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proceeding, “if the trial court failed to fully analyze the R.C. 3109.04(F)(2) best

interest factors, in the absence of a Civ.R. 52 request[,] it was not required to do so.”

Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, ¶ 54. Since

Nicole did not request findings of fact and conclusions of law, we will examine the

record to determine whether the judgment of the trial court is supported by some

competent, credible evidence. In the absence of evidence to the contrary, we will

“presume the regularity of the trial court proceedings and presume that the trial court

properly applied the law to the facts of the case.” Id.

       {¶21} In this case, the record indicates that the trial court’s decision to order

a shared parenting plan was supported by some competent, credible evidence. The

evidence in the record indicates that Nathan and Nicole were able to have a

functional visitation arrangement for a time before Nathan filed for a divorce. Tr.

26. R.C. 3109.04(F)(2)(a). However, at other junctures, Nicole and Nathan did not

cooperate regarding his visitation and did not agree on matters, such as the

children’s schooling. Tr. 149, 164. At the hearing, Nathan testified that he and

Nicole did not always act in a civil manner towards each other and admitted that

there was a “high level of conflict” between him and Nicole. Tr. 194, 215. He also

admitted that he knew a high level of conflict could make shared parenting difficult,

but he stated that he wanted shared parenting because he wanted more input in the

process of making decisions for the children. Tr. 194-195, 215.



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       {¶22} Nicole testified that Nathan was a good father, though she also

accused him of drinking too much and claimed he had abandoned her family at other

points during the divorce hearing. Tr. 16, 17-18, 41, 49. R.C. 3109.04(F)(2)(b).

Tr. 17-18. Nicole also restricted Nathan’s visitation after he filed for a divorce.

R.C. 3109.04(F)(2)(b). Nathan denied drinking too much and denied leaving Nicole

“destitute.” R.C. 3109.04(F)(2)(b). Tr. 214, 245. At trial, there was no evidence

of a “history of, or potential for child abuse, spouse abuse, other domestic violence,

or parental kidnapping by either parent.” R.C. 3109.04(F)(2)(c). In terms of

geographic proximity, the testimony at trial indicated that both parents worked in

Marion County; that Nathan lived in Marion County; that Nicole lived in

neighboring Crawford County; and that the children had roots in Marion County.

R.C. 3109.04(F)(2)(d).     There was no guardian ad litem in this case.           R.C.

3109.04(F)(2)(e).

       {¶23} Further, R.C. 3109.04(F)(2) also directs the trial court to consider “all

relevant factors, including, but not limited to, the factors enumerated in division

(F)(1) of this section * * *.” As we have already noted, the trial court applied all of

the R.C. 3109.04(F)(1) factors to this case, making express findings in its judgment

entry for each of the listed factors in that section. Doc. 53. After reviewing the

evidence in the record, we do not find any evidence that would lead us to dispense

with the presumption of regularity in the proceedings below. For these reasons, we



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find that the trial court did not render a decision that was unsupported by competent,

credible evidence. Thus, Nicole’s third assignment of error is overruled.

                                    Fourth Assignment of Error

         {¶24} Nicole argues that Nathan did not comply with R.C. 3109.04(G) as he

filed his proposed shared parenting plan less than thirty days before the final

hearing.1

                                             Legal Standard

         {¶25} “R.C. 3109.04(G) governs the time limitations to file a shared

parenting plan with the trial court * * *.” Clouse v. Clouse, 3d Dist. Seneca No. 13-

08-40, 2009-Ohio-1301, ¶ 34. This provision reads, in its relevant part, as follows:

         The plan for shared parenting shall be filed with the petition for
         dissolution of marriage, if the question of parental rights and
         responsibilities for the care of the children arises out of an action
         for dissolution of marriage, or, in other cases, at a time at least
         thirty days prior to the hearing on the issue of the parental rights
         and responsibilities for the care of the children.

R.C. 3109.04(G).

         {¶26} “[T]he requirement in R.C. 3109.04(G) that a shared parenting plan

must be filed at least thirty days prior to the hearing on parental rights and


1
  The exact wording of Nicole’s assignment of error is “[t]he trial court erred and abused its discretion in
adopting the plaintiff’s September 10, 2018 proposed shared parenting plan because the * * * plan was not
submitted at a time less than 30 days prior to the hearing.” (Emphasis added.) Appellant’s Brief, 11. R.C.
However, 3109.04(G) directs parents to file shared parenting plans “at a time at least thirty days prior to the
hearing on the issue of the parental rights and responsibilities for the care of the children * * *. R.C.
3109.04(G). Thus, the exact wording of Nicole’s assignment of error alleges that Nathan complied with R.C.
3109.04(G). Based on the body of her argument, however, we assume that she intended to state that “plan
was * * * submitted at a time less than 30 days prior to the hearing.” (Emphasis added.) Appellant’s Brief,
11. We will evaluate this assignment of error accordingly.

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responsibilities is directory, not mandatory.” Gould v. Gould, 9th Dist. Summit No.

28410, 2017-Ohio-7047, ¶ 6, quoting Harris v. Harris, 105 Ohio App.3d 671, 674,

664 N.E.2d 1304, 1306 (2d Dist. 1995).

       Instead of creating an inflexible rule requiring all plans to be
       submitted 30 days before trial, a judge has discretion to grant
       leave to file an untimely plan, as long as due process rights are
       protected by allowing the opposing party adequate opportunity to
       address the issue and present relevant evidence at trial.

In re Minnick, 12th Dist. Madison No. CA2003-01-001, 2003-Ohio-4245, ¶ 12.

                                    Legal Analysis

       {¶27} Nathan filed a proposed shared parenting plan with the trial court on

September 10, 2018. Doc. 38. Since the hearing on the matter of parental rights

was held on October 3, 2018, Nathan’s proposed shared parenting plan was not

timely filed with the trial court “at least thirty days prior to the hearing on the issue

of the parental rights and responsibilities for the care of the children.” R.C.

3109.04(G). See Tr. 1. However, Nicole did not raise this issue before the trial

court. “[I]n civil as well as criminal cases, [the] failure to timely advise a trial court

of possible error, by objection or otherwise, results in a waiver of the issue for

purposes of appeal.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d

1099, 1103 (1997). Thus, this matter was not properly preserved for consideration

on appeal and cannot now be raised “for the first time * * *.” Glendall-Grant v.

Grant, 8th Dist. Cuyahoga No. 105895, 2018-Ohio-1094, ¶ 10 (addressing the



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“untimely filing of [a] shared parenting plan” after the appellant failed to object

before the trial court).

       {¶28} Even if Nicole had objected before the trial court, this argument would

still not provide grounds for reversing the trial court’s decision. Appellate courts

across this state have held “that the requirement in R.C. 3109.04(G) that a shared

parenting plan must be filed at least thirty days prior to the hearing on parental rights

and responsibilities is directory, not mandatory.” Harris, supra, at 674. See also

Siegel v. Siegel, 1st Dist. Hamilton No. C-140296, 2015-Ohio-1710, ¶ 9-10; Swain

v. Swain, 4th Dist. No. 04CA726, 2005-Ohio-65, ¶ 13; Hampton-Jones v. Jones, 8th

Dist. Nos. 77279, 77412, 2001 WL 902785, *4 (Aug. 9, 2001). The fact that Nathan

filed within the thirty-day limit does not bar his proposal from consideration. Id.

Further, the record indicates that Nicole did have an opportunity to respond. Nicole

was aware of Nathan’s request; had twenty-three days to respond to this proposed

shared parenting plan before the hearing; and had an opportunity to present evidence

at the hearing on October 3, 2018.

       {¶29} Nicole similarly challenges Nathan’s post-hearing shared parenting

proposal as failing to comply with R.C. 3109.04(G). Doc. 51. Prior to the divorce

hearing, Nicole filed a trial brief in which she requested custody of the children.

Doc. 47. At the hearing, Nicole testified that she did not want to have a shared

parenting plan and had an opportunity to voice her opposition to shared parenting.

Tr. 313. Nathan, having requested and proposed a shared parenting plan, testified

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that he wanted such an arrangement. Tr. 194, 281. The trial court apparently

determined that a shared parenting plan was in the best interest of the children and,

at a subsequent status conference, ordered Nicole and Nathan to file proposed shared

parenting plans. Appellant’s Brief, 10. Appellee’s Brief, 17.

        {¶30} On December 14, 2018, Nathan filed his proposed shared parenting

plan. Doc. 51. However, Nicole never filed a proposed shared parenting plan.

Thus, the trial court gave Nicole the opportunity to file an alternative shared

parenting plan, but she refused this offer. We see no indication in the record that

the trial court abused its discretion in this matter. See Clouse, supra, ¶ 41 (holding

“that the trial court did not abuse its discretion under R.C. 3109.04(G) in granting

[appellee] leave to file a shared parenting plan after the final divorce hearing * *

*.”).

        {¶31} In this case, Nicole was aware that Nathan was seeking shared

parenting; had adequate time to respond to his proposed shared parenting plan; had

the opportunity to argue against shared parenting at the divorce hearing; and was

given the opportunity to file her own shared parenting plan. See Clouse, supra, at ¶

41. After examining the evidence in the record, we do not find any indication that

the trial court abused its discretion in allowing Nathan’s proposed shared parenting

plan to be submitted within thirty days of the hearing. We also do not find any

indication that the trial court abused its discretion in allowing both parties to have



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the opportunity to file a revised shared parenting plan after the status conference.

For these reasons, Nicole’s fourth assignment of error is overruled.

                             Fifth Assignment of Error

       {¶32} Nicole argues that the trial court erred in awarding all four of the tax

exemptions for the children to Nathan.

                                  Legal Standard

       {¶33} R.C. 3119.82 governs the process of designating the parent who may

claim dependent children for federal income tax purposes and reads, in its relevant

part, as follows:

       [W]henever a court issues * * * a court child support order * * *,
       the court shall designate which parent may claim the children
       who are the subject of the court child support order as dependents
       for federal income tax purposes * * *. * * * If the parties do not
       agree, the court, in its order, may permit the parent who is not the
       residential parent and legal custodian to claim the children as
       dependents for federal income tax purposes only if the court
       determines that this furthers the best interest of the children * *
       *. In cases in which the parties do not agree which parent may
       claim the children as dependents, the court shall consider, in
       making its determination, any net tax savings, the relative
       financial circumstances and needs of the parents and children, the
       amount of time the children spend with each parent, the eligibility
       of either or both parents for the federal earned income tax credit
       or other state or federal tax credit, and any other relevant factor
       concerning the best interest of the children.

R.C. 3119.82. “Under the plain language of the statute, a trial court is not required

to state on the record its reasons for awarding tax dependency exemptions.” Clark

v. Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 35. “However, ‘[w]hile


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the trial court does not need to state a basis for allocating the exemption, the record

does need to include financial data in relation to the above factors to support the

trial court’s decision.’” Id. at ¶ 35, quoting Ankney v. Bonos, 9th Dist. Summit No.

23178, 2006-Ohio-6009, ¶ 40, rev’d on other grounds.


                                   Legal Analysis

       {¶34} In this case, the trial court determined that “[t]he father shall be

entitled to claim the minor children on all of his local, state, and federal income

taxes for the tax year 2018 and each year thereafter.” Doc. 53. The trial court did

not make the express findings as to why it reached this determination. Doc. 53.

While the trial court was not required to make express findings to support its

decision, the evidence in the record still needs to support its decision. We turn now

to determining whether the record supports the trial court’s decision in this matter.

       {¶35} We begin our analysis by noting that neither party asked for this

particular arrangement. Nathan requested that he and Nicole each claim two

children every year on their taxes. Tr. 212. Nicole, on the other hand, requested

that she and Nathan alternate claiming all four children every other year. Tr. 90.

Since the parties did not agree, the trial court was required to consider

       any net tax savings, the relative financial circumstances and needs
       of the parents and children, the amount of time the children spend
       with each parent, the eligibility of either or both parents for the
       federal earned income tax credit or other state or federal tax
       credit, and any other relevant factor concerning the best interest
       of the children.

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R.C. 3119.82. The record indicates that Nicole’s annual income is $21,745.00 and

that Nathan’s annual income is between $45,000.00 and $50,000.00. Doc. 53.

Thus, Nathan makes more than double Nicole’s annual income. Nathan was ordered

to pay $936.38 in child support each month but was not required to make any

spousal support payments. Doc. 53.

       {¶36} Under the shared parenting plan, the children will spend the same

amount of time with each parent. Doc. 53. Nevertheless, considering that Nicole is

the only parent eligible for the earned income tax credit, claiming all of the children

on Nathan’s taxes would be less beneficial to the children financially.            See

Montgomery v. Montgomery, 6th Dist. Huron No. H-06-035, 2007-Ohio-2539, ¶ 28.

Further, at the time of this divorce, Nathan and Nicole owed the Internal Revenue

Service $29,308.07 in back taxes. Tr. 93. The trial court found that this sum was a

marital debt. Doc. 53.

       {¶37} On appeal, Nathan argues that the trial court’s decision should remain

undisturbed because Nicole failed to request findings of fact and conclusions of law

pursuant to Civ.R. 52. This means that the trial court could enter a general judgment

and was not required to state the findings that supported this determination

expressly. However, regardless of whether a party files a Civ.R. 52 request, the

evidence in the record must still support the trial court’s decision. After considering

the relevant financial information in the record, we cannot discern the rationale for


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designating Nathan alone as the parent who may claim all four children every year

for tax purposes. The trial court must either clarify the rationale behind this decision

or modify its order as to this issue. Nicole’s fifth assignment of error is sustained.

                              Sixth Assignment of Error

       {¶38} Nicole argues that the trial court made a determination that was

against the manifest weight of the evidence by giving Nathan custody of the

children.

                                   Legal Standard

       {¶39} “When making a determination regarding parental rights, the

domestic relations court must follow statutory guidelines.” King v. King, 3d Dist.

Union No. 14-11-23, 2012-Ohio-1586, ¶ 8. R.C. 3109.04(L) reads, in its relevant

part, as follows:

       (5) Unless the context clearly requires otherwise, if an order is
       issued by a court pursuant to this section and the order provides
       for shared parenting of a child, both parents have “custody of the
       child” or “care, custody, and control of the child” under the
       order, to the extent and in the manner specified in the order.

       (6) Unless the context clearly requires otherwise and except as
       otherwise provided in the order, if an order is issued by a court
       pursuant to this section and the order provides for shared
       parenting of a child, each parent, regardless of where the child is
       physically located or with whom the child is residing at a
       particular point in time, as specified in the order, is the
       “residential parent,” the “residential parent and legal custodian,”
       or the “custodial parent” of the child.

       (7) Unless the context clearly requires otherwise and except as
       otherwise provided in the order, a designation in the order of a

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       parent as the residential parent for the purpose of determining the
       school the child attends * * * does not affect the designation
       pursuant to division (L)(6) of this section of each parent as the
       “residential parent,” the “residential parent and legal custodian,”
       or the “custodial parent” of the child.

(Emphasis added.) R.C. 3109.04(L)(5-7).

       {¶40} Appellate courts “review[] a domestic relations court’s decision

regarding parental rights for an abuse of discretion.” King at ¶ 9. “Under the abuse

of discretion standard, an appellate court is not to substitute its judgment for the trial

court’s judgment.” Mousa v. Saad, 3d Dist. Marion No. 9-18-12, 2019-Ohio-742,

¶ 29, citing Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.).

Thus, a mere error of judgment does not rise to the level of an abuse of discretion.

Siferd v. Siferd, 2017-Ohio-8624, 100 N.E.3d 915, ¶ 16 (3d Dist.). “[T]o constitute

an abuse of discretion, the trial court’s decision must be unreasonable, arbitrary, or

capricious.” Southern v. Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-1440, ¶

10.

                                    Legal Analysis

       {¶41} In its judgment entry, the trial court ordered a shared parenting

arrangement. Doc. 53. Under a shared parenting plan, “both parents have “custody

of the child[ren] * * *.” R.C. 3109.04(L)(5). The trial court’s order does not alter

the arrangement set forth in R.C. 3109.04(L)(5). Doc. 53. In the shared parenting

plan, the trial court “ORDERED that the parties shall share the parental rights and

responsibilities pursuant to the shared parenting plan attached hereto and

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incorporated herein.” Doc. 53. The trial court further stated that “[b]oth parties

shall be designated the custodial and residential parent for the minor children during

his/her individual parenting time period with the minor children.” Doc. 53. Thus,

contrary to the assertion in this assignment of error, the trial court did not award

custody of the children to Nathan. Doc. 53.

       {¶42} While Nicole, in her assignment of error, argues against the trial

court’s award of custody to Nathan, she seems to be arguing against the trial court’s

decision to name Nathan the residential parent for school placement purposes. R.C.

3109.04(L)(7) gives the trial court the authority to designate one of the parents as

the residential parent for the purposes of school placement. R.C. 3109.04(L)(7).

Doc. 53. The trial court acted pursuant to this provision in naming Nathan as the

residential parent for school placement purposes. Doc. 53. For this reason, we will

examine whether the trial court abused its discretion in making this determination.

       {¶43} In this case, Nicole and Nathan disagreed strongly on the issue of

school placement. Prior to their separation, Nicole took the children out of Marion

City Schools because she believed that God had called her to homeschool them. Tr.

13, 150. At trial, Nathan testified that Nicole did this without his approval. Tr. 150.

Nicole then left Marion County with her children, moving to her mother’s house in

Crawford County in January of 2018. Tr. 239. Nathan testified that Nicole moved

with the children without notifying him prior to leaving. Tr. 154. After moving,



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Nicole placed the children into a public school in Crawford County without

consulting Nathan. Tr. 165. See Doc. 53, citing R.C. 3109.04(F)(1)(f).

        {¶44} At the time of trial, Nathan still lived in Marion County and requested

to be named the residential parent for school placement purposes. Doc. 53. He

wanted to place the children back into Marion City Schools where they had been

enrolled prior to being homeschooled by Nicole in between October of 2017 and

February of 2018. Tr. 13, 294. Doc. 53, citing R.C. 3109.04(F)(1)(a). Nicole

testified that she and Nathan moved back to Marion County in 2010 after having

lived outside of Marion County for roughly one year. Tr. 7. She also testified that

she and the children had lived continuously in Marion County until she moved in

January of 2018. Tr. 4, 8. Since her oldest child had been born in 2010, Nicole

admitted that the children had spent almost all of their lives in Marion County. Tr.

5, 8.

        {¶45} At trial, Nathan and Nicole both testified that the children had

connections to the community in Marion County.              Tr. 73, 202.     See R.C.

3109.04(F)(1)(d). Further, Nicole, who works in the mental health field, opened a

practice in Marion County in 2016. Tr. 9. At trial, she testified that she still worked

in Marion County even though she lived in Crawford County. Tr. 9-10. Similarly,

Nathan still operates his business in Marion County. Tr. 11, 146.

        {¶46} Based on the evidence produced at trial, the trial court found that “[i]t

is unknown if the children are adjusting to their new school or involved in activities

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in Crawford County[.]” Doc. 53, citing R.C. 3109.04(F)(1)(d). The trial court

further found that the children had “resided in Marion County for seven years”; that

the children “were acclimated to their home, community, church, and school” in

Marion County; and that Nicole “abruptly moved herself and her children to

Crawford County * * *.” Doc. 53, citing R.C. 3109.04(F)(1)(d). The trial court

also found that “[i]t [was] difficult to know the emotional impact of the abrupt

removal of the children from their home, and school.” Doc. 53, citing R.C.

3109.04(F)(1)(e).

       {¶47} The evidence produced at trial indicates that Marion City Schools is a

place where the children have previously attended school; is located in the same city

as the workplaces of both Nicole and Nathan; and is situated in a community in

which the children have roots. After reviewing the evidence in the record, we

conclude that the trial court did not abuse its discretion in naming Nathan the

residential parent for school placement purposes. Thus, Nicole’s sixth assignment

of error is overruled.

                            Seventh Assignment of Error

       {¶48} The appellant asserts that the trial court abused its discretion by failing

to make a finding that the advantages of requiring the children to move back to

Marion County outweighed the disadvantages of such a move.




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                                   Legal Standard

       {¶49} “[A] defendant has the burden of affirmatively demonstrating the

error of the trial court on appeal.” State v. Gideon, 2019-Ohio-2482, 130 N.E.3d

357, ¶ 14 (3d Dist.), quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-

Ohio-6912, ¶ 7. Thus, under App.R. 12(A)(2), an appellate court

       may disregard an assignment of error presented for review if the
       party raising it fails to identify in the record the error on which
       the assignment of error is based or fails to argue the assignment
       separately in the brief, as required under App.R. 16(A).

App.R. 12(A)(2). Under App.R. 16(A), the appellant’s brief must include

       [a]n argument containing the contentions of the appellant with
       respect to each assignment of error presented for review and the
       reasons in support of the contentions, with citations to the
       authorities, statutes, and parts of the record on which appellant
       relies.

App.R. 16(A). In the absence of a legal argument, “[i]t is not the duty of an appellate

court to search the record for evidence to support an appellant’s argument as to any

alleged error.” In re Adoption of C.N.A., 2018-Ohio-897, 108 N.E.3d 553, ¶ 10 (3d

Dist.), quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001, 1996 WL

174609, *14 (Apr. 15, 1996).

                                   Legal Analysis

       {¶50} Nicole lists a seventh assignment of error in her brief but does not

provide a supporting legal argument. The appellant also did not include any

citations to legal authorities or references to materials in the record. Since Nicole


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did not raise this issue in a manner that comports with the Ohio Rules of Appellate

Procedure, her seventh assignment of error is overruled.

                                     Conclusion

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

assigned and argued in the first, second, third, fourth, and sixth assignments of error,

the judgment of the Family Division of the Marion County Court of Common Pleas

is affirmed as to these issues. Having found no error prejudicial to the appellant in

the particulars assigned but not argued in the seventh assignment of error, the

judgment of the Family Division of the Marion County Court of Common Pleas is

affirmed as to this issue. Having found error prejudicial to the appellant in the

particulars assigned and argued in the fifth assignment of error, the judgment of the

Family Division of the Marion County Court of Common Pleas is reversed as to this

issue. This cause is remanded to the trial court for further proceedings consistent

with this opinion.

                                                          Judgment Affirmed in Part
                                                                   Reversed in Part
                                                              And Cause Remanded

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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