[Cite as Nungester v. Nungester, 2018-Ohio-1113.]




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




KATE NUNGESTER,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-17-40

        v.

ROBERT NUNGESTER,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                                 Family Division
                           Trial Court No. 13 DR 0044

                                     Judgment Affirmed

                           Date of Decision: March 26, 2018




APPEARANCES:

        Ted Coulter for Appellant

        Nathan Witkin for Appellee
Case No. 9-17-40


ZIMMERMAN, J.

       {¶1} Appellant, Robert Nungester, Jr. (“Robert”) appeals the amended

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

wherein the trial court denied Robert’s motion to modify parenting time.

       {¶2} Robert appealed the trial court’s first judgment entry with this Court

on December 22, 2016, in Nungester v. Nungester, 3d Dist. Marion No. 9-16-64,

2017-Ohio-6935. The result of that appeal led to our remand order because the trial

court used R.C. 3109.04, not R.C. 3109.051, as its best interest guide when

addressing a modification of visitation. Robert’s current appeal is from the amended

judgment entry issued by the trial court pursuant to our remand in the prior appeal.

                   Facts and Procedural History of Prior Appeal

       {¶3} Robert and Kate Nungester (“Kate”) were divorced on August 23,

2013 in the Marion County Common Pleas Court. As part of their divorce, they

entered into an agreed parenting plan for their three minor children. The shared

parenting plan designated Kate as the residential parent and permitted Robert

limited visitation with the opportunity for Robert to increase visitation over time to

parenting time set forth in the Marion County Local Rule 32(A). Robert’s visitation

was to be reconsidered upon the recommendation of the children’s counselor, with

overnight visits to start when Robert had obtained appropriate housing.




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       {¶4} On March 20, 2015 Robert filed a motion in the trial court to modify

the shared parenting plan to be named the residential parent of the children, along

with a motion to modify his parenting time. However, pending a final hearing on

his motions, on March 23, 2016, Robert and Kate entered into an agreement

modifying Robert’s visitation (with the children) from being supervised by the

Marion County Supervised Visitation Agency (“C•A•R•E | F•I•T•”) to visitation

occurring in a public place and supervised by Kate. The agreement also required

Robert to attend counseling sessions with the children at the discretion of the

children’s counselor. Lastly, the modification provided that Robert and Kate could

mutually agree to periods of unsupervised parenting time with the minor children

(by Robert) before the next court review hearing.

       {¶5} Ultimately, a hearing was held in the trial court on Robert’s motions.

At that hearing, Robert advised the trial court that he only wanted to expand his

visitation rights to match the default visitation schedule of the trial court under its

local rule. On November 23, 2016, the trial court entered a judgment entry denying

Robert’s motions. Robert timely filed his appeal and this court remanded the case

to the trial court.

                      Facts and Procedural History of Current Appeal

       {¶6} Pursuant to our remand, on September 15, 2017, the trial court issued

its amended judgment entry in which it analyzed the factors set forth in R.C.


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3109.051(D) determining that it was in the best interest of the children to deny

Roberts motion to modify the prior order as to his parenting time. (Doc. 149).

Robert has timely appealed the trial court’s amended entry wherein he asserts a sole

assignment of error for our review.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED AS A MATTER OF LAW,
       ABUSED ITS DISCRETION AND ERRED AGAINST THE
       WEIGHT OF THE EVIDENCE BY DETERMINING IT WAS
       NOT IN THE BEST INTERESTS OF THE PARTIES’
       CHILDREN UNDER R.C. 3109.051 FACTORS TO HAVE
       LOCAL RULE 32A PARENTING TIME WITH THEIR
       FATHER/DEFENDANT-APPELLANT AND THEREFORE
       DENYING THE FATHER/DEFENDANT-APPELLANT’S
       MOTION TO MODIFY PARENTING TIME.

       {¶7} In his assignment of error, Robert agues the trial court abused its

discretion when it denied his motion to modify parenting time. We disagree.

                                 Standard of Review

       {¶8} The abuse of discretion standard is used to review a trial court’s

decision to grant visitation. Booth v. Booth, 44 Ohio St.3d 142, 144 (1988). A court

abuses its discretion when it makes a decision that is “unreasonable, arbitrary, or

unconscionable”. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Upon

review, appellate courts must accord the utmost respect to the trial courts discretion.

Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Thus, the reviewing court in such




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proceedings should be guided by the presumption that the trial court’s findings were

correct. Id. citing Seasons Cole Co. v. Cleveland, 10 Ohio St.3d 77, 80.

                                      Analysis

       {¶9} In Braatz v. Braatz, 85 Ohio St.3d 40 (1999), the Supreme Court of

Ohio set forth the appropriate standard for trial courts to apply when faced with the

decision of whether to modify an existing visitation order. The Supreme Court

clarified that R.C. 3109.051 governs the modification of visitation rights. (Id. at

paragraph one of the syllabus.) The Court went on to explain that “[t]he party

requesting a change in visitation rights need make no showing that there has been a

change in circumstances in order for the court to modify those rights. Pursuant to

R.C. 3109.051(D), the trial court shall consider the fifteen factors enumerated

therein, and in its sound discretion shall determine visitation that is in the best

interest of the child”. (Id. at paragraph two of the syllabus.) These factors are:

       (1) The prior interaction and interrelationships of the child with the
       child's parents, * * *;

       (2) The geographical location of the residence of each parent and the
       distance between those residences, * * *;

       (3) The child’s and parents’ available time, including, but not
       limited to, each parent's employment schedule, the child's school
       schedule, and the child's and the parents' holiday and vacation
       schedule;

       (4) The age of the child;

       (5) The child’s adjustment to home, school, and community;

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      (6) If the court has interviewed the child in chambers, pursuant to
      division (C) of this section, regarding the wishes and concerns of the
      child as to parenting time by the parent who is not the residential
      parent * * *, as to a specific parenting time or visitation schedule, or
      as to other parenting time or visitation matters, the wishes and
      concerns of the child, as expressed to the court;

      (7) The health and safety of the child;

      (8) The amount of time that will be available for the child to spend
      with siblings;

      (9) The mental and physical health of all parties;

      (10) Each parent’s willingness to reschedule missed parenting time
      and to facilitate the other parent's parenting time rights, * * *;

      (11) In relation to parenting time, whether either parent previously
      has been convicted of or pleaded guilty to any criminal offense
      involving any act that resulted in a child being an abused child or a
      neglected child; whether either parent, in a case in which a child has
      been adjudicated an abused child or a neglected child, previously has
      been determined to be the perpetrator of the abusive or neglectful act
      that is the basis of the adjudication; 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;

      (12) * * *

      (13) Whether the residential or one of the parents [sic] 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;

      (14) Whether either parent has established a residence or is planning
      to establish a residence outside this state;

      (15) * * *


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      {¶10} Applying the relevant best interest factors under R.C. 3109.051(D) to

the case before us reveals that the trial court determined that a modification of

Robert’s visitation was not in the children’s best interest. Specifically, in its

September 15, 2017 amended judgment entry, the trial court found as follows:

      “* * * the prior interaction and interrelationship between the
      children and their father has been strained for several years, See
      [sic] Ohio Revised Code §3109.051(D)(1).

           All parties and the children in [sic] reside in Marion, Ohio,
      see Ohio Revised Code §3109.051(D)(2).

          Plaintiff/Mother is employed. Defendant/Father is not
      employed. * * * The children are all school age and attend Elgin
      Schools, see Ohio Revised Code §3109.051(D)(3).

          The parties have three (3) children, Katelyn, dob: 12/22/04,
      Roston, dob: 05/15/07, and Kareston, dob: 04/05/08. See Ohio
      Revised Code 3109.051(D)(4).

           The Court finds the children are well adjusted to their
      mother’s home, their school and community. All three children
      perform well academically.       They are also engaged in
      extracurricular activities.      See Ohio Revised Code
      §3109.051(D)(5).

           The Court finds the children and father struggle with their
      relationship. Counseling to address the relationship was provided
      with little to no success. * * * The Court interviewed the children.
      All the children expressed reservations regarding visits with
      Father. The children and Father attempted joint counseling.
      Two sessions occurred and limited progress was made, as Father
      did not continue to counsel. The children expressed their desire
      that visits continue to be supervised should visits be continued.
      See Ohio Revised Code §3109.051(D)(6).



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           * * * Roston suffers from anxiety for which he takes
      medication and counsels, see Ohio Revised Code §3109.051(D)(7).
      See also Ohio Revised Code §3109.051(D)(9).

          All three children reside with Mother and appear to be well
      bonded. See Ohio Revised Code §3109.051(D)(8).

           Efforts to facilitate visitation have been extensive. Visits
      occurred at the C•A•R•E | F•I•T• visitation center for an extended
      period of time with limited results. Plaintiff/Mother made efforts
      for the visits to be more engaging between Father and children by
      providing a meal for the children and Defendant/Father to enjoy
      at C•A•R•E | F•I•T•. Plaintiff/Mother also, * * *, arranged outings
      at such places as the zoo, the Ohio State Fair, COSI and other
      such activities for the children and father. Mother absorbed the
      cost of these outings and maintained her distance to allow the
      children and Father to experience these venues together. See
      Ohio Revised Code §3109.051(D)(10).

           Neither parent has been convicted or pleaded guilty of any
      act that resulted in a child being adjudicated neglected or abused.
      See Ohio Revised Code §3109.051(D)(11).

           The residential parent has made significant efforts to
      encourage and facilitate visitation between Father and the
      children including paying for counseling for children and Father
      and arranging activities for Father and children to do together,
      See [sic] Ohio Revised Code §3109.051(D)(13).

           Both parties continue to reside in Marion, Ohio. There has
      been no notice to the Court of either party intending to relocate.
      See Ohio Revised Code §3109.051(D)(14).”

(Doc. 149).

      {¶11} In reviewing the record, we find the trial court was presented with

competent and credible evidence regarding the factors listed in R.C. 3109.051(D)

such as: the strained relationship between the children and their father; the

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children’s reservations of visiting with their father; the children’s wishes for

supervised visitation to continue; and the father’s lack of commitment to counseling

with the children to help reconcile their relationship. In its amended entry, the trial

court properly reviewed and discussed the factors under R.C. 3109.05(D) when

analyzing the best interests of the children in regards to Robert’s modification of

visitation motion. “An appellate court will not reweigh the evidence introduced at

trial; rather, we will uphold the findings of the trial court if the record contains some

competent, credible evidence to support the trial court’s conclusions.” Eggeman v.

Eggeman, 3d Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶27. In determining

whether competent, credible evidence exists, “[a] reviewing court should be guided

by a presumption that the findings of a trial court are correct, since the trial judge is

best able to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use those observations in weighing the credibility of the testimony”.

Bey v. Bey, 3d Dist. Mercer No. 10-08-12, 2009-Ohio-300, ¶15, quoting Barkley v.

Barkley, 119 Ohio App.3d 155, 159.

       {¶12} Thus, we find the trial court’s findings were not an abuse of discretion

because competent and credible evidence exists in the record as to whether it was

in the best interest of the children to have the standard local court visitation time

with their father. Accordingly, Robert’s sole assignment of error is not well taken

and is overruled.


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       {¶13} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment entry of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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