[Cite as Girdlestone v. Girdlestone, 2016-Ohio-8073.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STEPHEN GIRDLESTONE                                        JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                                Hon. W. Scott Gwin, J.
                                                           Hon. John W. Wise, J.
-vs-
                                                           Case No. 2016 CA 00019
ABIGAIL GIRDLESTONE

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Domestic Relations Division, Case
                                                        No. 2012 DR 00567


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 December 5, 2016



APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee

DENISE K. HOUSTON                                       STANLEY R. RUBIN
LAUREN A. GRIBBLE                                       431 Market Avenue North
TZANGAS PLAKAS MANNOS LTD.                              Canton, Ohio 44702
220 Market Avenue South, 8th Floor
Canton, Ohio 44702
Stark County, Case No. 2016 CA 00019                                                    2

Wise, J.

       {¶1}   Plaintiff-Appellant Stephen Girdlestone appeals the decision of the Stark

County Court of Common Pleas, Domestic Relations Division, which denied his post-

decree motion to terminate or modify the shared parenting provision of the parties’ 2013

divorce. Defendant-Appellee is Abigail Girdlestone, the former spouse. The relevant facts

leading to this appeal are as follows.

       {¶2}   Appellant Stephen and Appellee Abigail were married in 2007. Four sons

were born of the marriage: H.G., W.G., A.G., and J.G.

       {¶3}   On May 8, 2012, Appellant Stephen filed for divorce in the Stark County

Court of Common Pleas, Domestic Relations Division. Appellee Abigail filed an answer

and counterclaim on May 30, 2012.

       {¶4}   A final decree of divorce was issued on November 12, 2013. A nunc pro

tunc judgment entry was issued on November 22, 2013. The terms of the divorce included

a 50/50 shared parenting provision, which states as follows in pertinent part:

              “[Appellant and appellee] hereby consent that they shall discuss and

       jointly agree on all significant and important matters related to the parties'

       children and in making important decisions regarding said children, subject

       to the exceptions set forth in the within Plan, with respect to which decision

       making authority rests with the Father. If the parties are unable to agree as

       to issues which are not subject to such exceptions, any such issue shall be

       submitted to mediation, through the guardian ad litem, Kristen Guardado,

       who shall remain continuously appointed in the within action ***.”
Stark County, Case No. 2016 CA 00019                                                        3


       {¶5}   It appears undisputed Appellee Abigail did not comply with the shared

parenting plan on a number of occasions, as further discussed infra. As a result, on May

26, 2015, appellant filed a motion asking the trial court to terminate shared parenting or,

in the alternative, to modify the plan and/or designate him as the residential parent. On

May 27, 2015, appellant additionally filed a motion to show cause, asking the court to hold

appellee in contempt for her alleged lack of compliance with the shared parenting plan.

       {¶6}   A trial to the court was conducted on December 15 and 16, 2015. The trial

court issued a thirteen-page judgment entry with findings of fact and conclusions of law

on December 29, 2015.

       {¶7}   The trial court therein noted inter alia that the shared parenting plan was

more specific concerning parental decision-making than most it had seen and was

“heavily weighted in favor of the Father'' in that regard. Judgment Entry at 10. However,

the court found that appellee had violated aspects of the plan on numerous occasions,

noting she had demonstrated "passive aggression or outright refusal to comply ***." Id. at

6. The court also observed that appellee had "shown an inability to cooperate with

decisions made by [appellant] in this case.” Id. at 12. Although the guardian ad litem,

Attorney Kristen Guardado, presented her recommendation to terminate shared

parenting and award custody of all four boys to appellant, the trial court decided to keep

the plan in place and instead render a finding of appellee being in willful contempt of the

court’s divorce orders. However, the court suspended appellee’s jail sentence for

contempt on the condition of payment to appellant of $7,500.00 in attorney fees and future

compliance with the court's orders. The trial court also warned her to remedy her

"contentious conduct or face an outright termination of parental rights in the future.” Id. at
Stark County, Case No. 2016 CA 00019                                                    4


13. It also ordered the parties to continue with counseling, and to use the court’s online

format for parental communication.

      {¶8}   Appellant filed a notice of appeal on January 26, 2016. He herein raises the

following sole Assignment of Error:

      {¶9}   “I.   TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

TERMINATE SHARED PARENTING AND AWARD CUSTODY TO FATHER OR, IN THE

ALTERNATIVE, TO MODIFY THE PLAN WHEN MOTHER HAS DEMONSTRATED A

PATTERN OF INFLEXIBILITY, DISREGARD OF HER PARENTING OBLIGATIONS,

AND INATTENTION TO THE CHILDREN'S BEST INTERESTS.”

                                            I.

      {¶10} In his sole Assignment of Error, appellant contends the trial court abused

its discretion in declining to terminate or modify the parties’ shared parenting plan

concerning H.G., W.G., A.G., and J.G. We disagree.

                                  Standards of Review

      {¶11} In addressing a motion for the termination or modification of a shared

parenting plan where the parents have ceased to mutually agree, a trial court must

determine (1) whether a change in circumstances has occurred, (2) whether termination

or modification is in the children's best interests, and (3) whether the advantage to the

child resulting from the termination or modification outweighs any potential harm. See

Ford v. Ford, 5th Dist. Tuscarawas No. 2012 AP 03 0025, 2012-Ohio-5454, ¶ 13.

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

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

73–74. In order to find an abuse of that discretion, we must determine the trial court's
Stark County, Case No. 2016 CA 00019                                                       5


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

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

Furthermore, as an appellate court reviewing evidence in custody matters, we do not

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

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

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

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

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

wide latitude in considering all the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d

415, 418, 674 N.E.2d 1159.

                                Change in Circumstances

       {¶13} R.C. 3109.04(E)(2)(c) gives the court authority to terminate certain shared

parenting plans upon the request of one or both of the parents or when it determines that

shared parenting is no longer in the child or children's best interest. Although there is not

unanimity among the various appellate districts in Ohio on the issue, this Court has taken

the position that a trial court must consider the threshold question of “change of

circumstances,” as well as “best interest,” in deciding a shared parenting termination

issue. See, e.g., Brocklehurst v. Duncan, 5th Dist. Muskingum No. CT10–0026, 2010–

Ohio–5978, ¶ 19; Oliver v. Arras, 5th Dist. Tuscarawas No. 2001 AP 11 0105, 2002–Ohio–

1590. We have also indicated a trial court's determination of parental “ongoing and

unresolved issues with communication” may constitute a change of circumstances for

modification of a shared parenting order. Murphy v. Murphy, 5th Dist. Tuscarawas No.

2014 AP 01 0002, 2014-Ohio-4020, ¶ 22.
Stark County, Case No. 2016 CA 00019                                                        6

       {¶14} Appellant correctly notes that in the case sub judice, the trial court, in

deciding not to terminate or modify shared parenting, made no explicit determinations

regarding change in circumstances; appellant nonetheless maintains that “to whatever

degree its holding was based on a finding that no change in circumstances has occurred,

such a finding was unmistakably an abuse of discretion ***.” Appellant’s Brief at 24.

       {¶15} However, under the circumstances presented, we find further discussion of

the “change in circumstances” criterion would be merely academic or advisory.

                                    Best Interest Factors

       {¶16} R.C. 3109.04(F)(1) states as follows:

       {¶17} “In determining the best interest of a child pursuant to this section, whether

on an original decree allocating parental rights and responsibilities for the care of children

or a modification of a decree allocating those rights and responsibilities, the court shall

consider all relevant factors, including, but not limited to:

       {¶18} “(a) The wishes of the child's parents regarding the child's care;

       {¶19} “(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;

       {¶20} “(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;

       {¶21} “(d) The child's adjustment to the child's home, school, and community;

       {¶22} “(e) The mental and physical health of all persons involved in the situation;
Stark County, Case No. 2016 CA 00019                                                      7


       {¶23} “(f) The parent more likely to honor and facilitate court-approved parenting

time rights or visitation and companionship rights;

       {¶24} “(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;

       {¶25} “(h) Whether either parent or any member of the household of either parent

previously has been convicted of or pleaded guilty to any criminal offense involving any

act that resulted in a child being an abused child or a neglected child; whether either

parent, in a case in which a child has been adjudicated an abused child or a neglected

child, previously has been determined to be the perpetrator of the abusive or neglectful

act that is the basis of an adjudication; whether either parent or any member of the

household of either parent previously has been convicted of or pleaded guilty to a violation

of section 2919.25 of the Revised Code or a sexually 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;
Stark County, Case No. 2016 CA 00019                                                           8


       {¶26} “(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;

       {¶27} “(j) Whether either parent has established a residence, or is planning to

establish a residence, outside this state.”

       {¶28} Furthermore, R.C. 3109.04(F)(2) provides: “In determining whether shared

parenting is in the best interest of the children, the court shall consider all relevant factors,

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

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

factors:

       {¶29} “(a) The ability of the parents to cooperate and make decisions jointly, with

respect to the children;

       {¶30} “(b) The ability of each parent to encourage the sharing of love, affection,

and contact between the child and the other parent;

       {¶31} “(c) Any history of, or potential for, child abuse, spouse abuse, other

domestic violence, or parental kidnapping by either parent;

       {¶32} “(d) The geographic proximity of the parents to each other, as the proximity

relates to the practical considerations of shared parenting;

       {¶33} “(e) The recommendation of the guardian ad litem of the child, if the child

has a guardian ad litem.”

       {¶34} We note that there is no requirement that a trial court separately address

each best interest factor enumerated in R.C. 3109.04. See In re Henthorn, Belmont App.

No. 00–BA–37, 2001–Ohio–3459. Absent evidence to the contrary, an appellate court will
Stark County, Case No. 2016 CA 00019                                                          9


presume the trial court considered all of the relevant factors listed in R.C. 3109.04(F)(1).

Id., citing Evans v. Evans (1995), 106 Ohio App.3d 673, 677, 666 N.E.2d 1176.

       {¶35} In the case sub judice, three of the parties’ four sons are school-age and

are involved in various sports, religious, and scouting activities. The aforesaid shared

parenting plan provided that the parties should try to agree which activities their sons

would participate in, but if they could not, appellant would have the final say.1 They made

a similar agreement regarding medical care for the boys subject to certain provisions. The

plan further required that the parent with physical custody of the children at the time was

responsible for taking them to school, scheduled extracurricular activities, and medical

appointments.

       {¶36} The record reveals that appellee failed to comply with the plan on several

fronts. These actions included taking one of the boys to a therapist and another to a

pediatric dentist, in both cases without appellant’s knowledge. Also, appellee at one point

stopped giving allergy medication to the children, and she insisted that they try a

homeopathic approach instead. Furthermore, appellee admitted that she had failed to

fully oversee the boys’ school homework during her parenting time. Tr. at 131, 187.

Appellee also failed on numerous occasions to take the children to extracurricular and

religious activities, as articulated in detail by appellant. See Appellant’s Brief at 12-15, 20-

21. The trial court was not persuaded by appellee’s position that the boys were in too

many activities, such as hockey team commitments. The court acknowledged that the

activities, while frequent, were sufficiently “spaced out.” Judgment Entry at 10-11.




1 However, appellant, per the Plan, cannot allow the boys to participate in more than two
activities at a time, exclusive of religious events and programs.
Stark County, Case No. 2016 CA 00019                                                      10


       {¶37} We also note the guardian ad litem's recommendation in this instance was

to terminate shared parenting and award custody of all four boys to appellant. In addition,

the parties’ high-conflict counselor had been frustrated with the lack of progress, although

she recalled that the most recent session had gone much better. But it appears

undisputed that despite appellee’s obdurate parenting choices in certain areas, all four

sons are currently healthy and generally doing well in school.2

       {¶38} Ultimately, the trial court determined that “[i]f the Shared Parenting Plan that

the parties entered into in 2013 were to be strictly followed with regard to communication

and decision-making,” it “would clearly be in the children’s best interest to have as much

contact with both parents as possible while addressing their physical, social, and

emotional needs.” Judgment Entry at 12-13. The court went on to find that a termination

of the plan would be "premature and not in the children's best interest." Id. at 13. The

court thus opted for a contempt finding as its preferred present remedy, warning appellee

that she could be facing an “outright termination” of her parental rights if her conduct was

not corrected. Id. at 13.

       {¶39} It is axiomatic that in proceedings involving the custody and welfare of

children, the power of the trial court to exercise discretion is peculiarly important. See

Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey

v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. Under the present circumstances,

upon review, we find the trial court duly considered the statutory “best interest” factors,




2 The youngest child was pre-school age at the time of the evidentiary hearing. It should
also be noted that the oldest child has struggled with his social skills, possibly due to his
parents’ conflict.
Stark County, Case No. 2016 CA 00019                                                      11


and its decision to essentially invoke a wait-and-see approach to try to preserve the

shared parenting order did not constitute an abuse of discretion.

                                Harm/Advantage Weighing

       {¶40} In addition to the issues of “change in circumstances” and whether a shared

parenting modification is in the best interest of the child, a trial court must also consider

whether the harm that will result from the change will be outweighed by the resultant

benefits, pursuant to R.C. 3109.04(E)(1)(a)(iii). See Oliver v. Arras, supra.

       {¶41} In the case sub judice, the trial court did not reach this factor upon

determining that termination of shared parenting would not be in the boys’ best interest.

As such, we find further discussion of this issue is presently moot.

                                         Conclusion

       {¶42} Our review of the record thus does not indicate that appellate reversal under

the circumstances presented would be warranted against the trial judge who observed

the evidentiary proceedings firsthand.
Stark County, Case No. 2016 CA 00019                                          12


      {¶43} Appellant's sole Assignment of Error is therefore overruled.

      {¶44} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Gwin, J., concur.




JWW/d 1116
