[Cite as Jagodzinski v. Abdul-Khaliq, 2015-Ohio-5510.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


ANDREA JAGODZINSKI                                   :   JUDGES:
                                                     :
                                                     :   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                            :   Hon. John W. Wise, J.
                                                     :   Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :   Case No. 15-CA-31
                                                     :
OMRAN ABDUL-KHALIQ                                   :
                                                     :
                                                     :
       Defendant-Appellant                           :   OPINION


CHARACTER OF PROCEEDING:                                 Appeal from the Licking County Court of
                                                         Common Pleas, Domestic Relations
                                                         Division, Case No. 11 DR 01162 RPW



JUDGMENT:                                                AFFIRMED




DATE OF JUDGMENT ENTRY:                                  December 30, 2015




APPEARANCES:

For Plaintiff-Appellee:                                  For Defendant-Appellant:

PHILIP L. PROCTOR                                        ALFRED RAY ENGLISH
P.O. Box 4803                                            1549 Wood Iris Way
Newark, OH 43058                                         Lawrenceville, GA 30045
Licking County, Case No. 15-CA-31                                                      2

Delaney, J.

       {¶1} Defendant-appellant Omran Abdul-Khaliq (“Father”) appeals from the April

24, 2015 Judgment Entry of the Licking County Court of Common Pleas, Domestic

Relations Division. Plaintiff-appellee is Andrea Jagodzinski (“Mother”).

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Mother and Father have a minor child in common, D., d.o.b. October 14,

2004. Mother and Father have never been married. The instant case has a long and

convoluted procedural history. The following includes the procedural history relevant to

the issues in this appeal. It is undisputed that both parties want custody of D. and the

parties have rarely cooperated on any shared parenting plan for any length of time.

       {¶3} Mother filed a complaint to establish father-child relationship on June 6,

2006 in Franklin County. In 2008 and 2009, Father filed motions for ex parte custody.

On June 25, 2009, the parties executed a Shared Parenting Plan.

       {¶4} On May 31, 2011, Mother filed a motion for emergency custody order and

a motion to reallocate parental rights and responsibilities.

       {¶5} The case was transferred to the Licking County Court of Common Pleas,

Domestic Relations Division on July 13, 2011.         On January 17, 2012, the parties

reached a settlement agreement which was modified by an agreed judgment entry filed

February 10, 2012. Essentially, the parties agreed to return to the terms of the 2009

shared parenting plan with some modifications.

       {¶6} From June 2012 through December 2013, both parties filed numerous

contempt motions, ex parte motions for custody, and a petition for civil protection order

that was ultimately denied.
Licking County, Case No. 15-CA-31                                                      3


       {¶7} Relevant to this appeal, on November 9, 2013; January 27-28, 2014, and

February 21, 2014, a final hearing was held on the parties’ various motions for

contempt, motion to reallocate parental rights and responsibilities, and a motion for

payment of fees by the guardian ad litem.

       {¶8} On April 17, 2014, Mother filed an ex parte motion for emergency custody

of the minor child premised upon Father’s indictment upon criminal charges in the

Licking County Court of Common Pleas.1

       {¶9} On April 18, 2014, the trial court granted Mother’s motion, designated

Mother temporary legal custodian of the child and suspended Father’s parenting time.

       {¶10} On April 21, 2014, the magistrate entered its decision upon the pending

motions heard on November 9, 2013 and January 27-28 and February 21, 2014. Father

filed objections to this decision on May 5, 2014.

       {¶11} On April 25, 2014, an immediate hearing was held upon Mother’s ex parte

motion for emergency custody of the minor child.

       {¶12} On May 5, 2014, the magistrate entered an order reaffirming the orders of

the ex parte hearing designating Mother as temporary legal custodian and suspending

Father’s parenting time.

       {¶13} On June 18 and 19, 2014, Father filed a motion to set aside and an

amended motion to set aside.




1 On May 14, 2015, in Licking County Court of Common Pleas Case No. 2014 CR
00305, Father was convicted upon one count of intimidation pursuant to R.C. 2921.03, a
felony of the third degree; one count of trademark counterfeiting pursuant to R.C.
2913.34, a misdemeanor of the first degree; and one count of impersonating a peace
officer pursuant to R.C. 2921.51, a misdemeanor of the fourth degree.
Licking County, Case No. 15-CA-31                                                     4


       {¶14} On March 26, 2015, the trial court entered an opinion and decision

overruling Father’s objections and adopting the magistrate’s decision.

       {¶15} On April 24, 2015, the trial court entered a judgment entry terminating the

Shared Parenting Plan and granting sole custody to Mother.

       {¶16} On April 29, 2015, Father filed a motion for new trial which was denied by

the trial court on June 3, 2015.

       {¶17} Appellant now appeals from the April 24, 2015 Judgment Entry of the

Licking County Court of Common Pleas, Domestic Relations Division.

       {¶18} Father raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶19} “I. THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO

CONCLUDE THAT THE TERMINATION OF THE SHARED PARENTING PLAN WAS

IN THE BEST INTEREST OF THE CHILD.”

       {¶20} “II. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT’S

MOTION FOR A NEW TRIAL.”

                                      ANALYSIS

                                           I.

       {¶21} In his first assignment of error, appellant argues the trial court erred in

terminating the shared parenting plan and granting sole custody to Mother.          We

disagree.

       {¶22} A trial court enjoys broad discretion in custody proceedings. Cossin v.

Holley, 5th Dist. Morrow No.2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.
Licking County, Case No. 15-CA-31                                                       5


A trial court's decision to terminate a shared parenting plan is reviewed under an abuse

of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio–

5812, ¶ 30. In order to find an abuse of discretion, we must determine the trial court's

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

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Furthermore, a judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280-281, 376 N.E.2d 578

(1978). A reviewing court must not substitute its judgment for that of the trial court

where there exists some competent and credible evidence supporting the judgment

rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 615, 1993–Ohio–9, 614

N.E.2d 742. “The reason for this standard of review is that the trial judge has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page.” Davis v. Flickinger, supra, 77 Ohio

St.3d at 418. “[D]eferential review in a child custody determination is especially crucial

‘where there may be much evident in the parties' demeanor and attitude that does not

translate to the record well.’ “Haines v. Haines, 5th Dist. Morrow No. 15CA0003, 2015-

Ohio-4299, ¶ 27, citing Wright v. Wright, 5th Dist. Stark No.2012CA00232, 2013–Ohio–

4138, ¶ 20.

       {¶23} A trial court is required to evaluate a number of factors in modifying or

terminating a shared parenting plan. R.C. 3109.04(E)(1)(a), (E)(2)(b), (E)(2)(c), and

(E)(2)(d) state in pertinent part:
Licking County, Case No. 15-CA-31                                                     6


            (E)(1)(a) 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.

            * * * *.

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

            this section:
Licking County, Case No. 15-CA-31                                                     7


            * * * *.

            (b) The court may modify the terms of the plan for shared parenting

            approved by the court and incorporated by it into the shared

            parenting decree upon its own motion at any time if the court

            determines that the modifications are in the best interest of the

            children or upon the request of one or both of the parents under the

            decree. Modifications under this division may be made at any time.

            The court shall not make any modification to the plan under this

            division, unless the modification is in the best interest of the

            children.

            (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 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 its own motion or upon the request of one or both

            parents, that shared parenting is not in the best interest of the

            children. If modification of the terms of the plan for shared parenting

            approved by the court and incorporated by it into the final shared

            parenting decree is attempted under division (E)(2)(a) of this

            section and the court rejects the modifications, it may terminate the
Licking County, Case No. 15-CA-31                                                     8


            final shared parenting decree if it determines that shared parenting

            is not in the best interest of the children.

            (d) Upon the termination of a prior final shared parenting decree

            under division (E)(2)(c) of this section, 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.

      {¶24} Further, R.C. 3109.04(F) states:

            (F)(1) 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:

            (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;
Licking County, Case No. 15-CA-31                                                  9


            (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 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
Licking County, Case No. 15-CA-31                                                   10


            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.

            (2) 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:
Licking County, Case No. 15-CA-31                                                         11


              (a) The ability of the parents to cooperate and make decisions

              jointly, with respect to the children;

              (b) The ability of each parent to encourage the sharing of love,

              affection, and contact between the child and the other parent;

              (c) Any history of, or potential for, child abuse, spouse abuse, other

              domestic violence, or parental kidnapping by either parent;

              (d) The geographic proximity of the parents to each other, as the

              proximity relates to the practical considerations of shared parenting;

              (e) The recommendation of the guardian ad litem of the child, if the

              child has a guardian ad litem.

              (3) When allocating parental rights and responsibilities for the care

              of children, the court shall not give preference to a parent because

              of that parent's financial status or condition.

       {¶25} The instant case involves termination of a shared parenting plan.             In

Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589, syllabus, the Supreme

Court of Ohio reviewed the termination of a shared parenting plan and held: “A

modification of the designation of residential parent and legal custodian of a child

requires a determination that a ‘change in circumstances' has occurred, as well as a

finding that the modification is in the best interest of the child.” Haines v. Haines, supra,

2015-Ohio-4299 at ¶ 20.

       {¶26} Termination of a shared parenting plan is thus a highly fact-driven,

subjective decision. Our standard of review is abuse of discretion and deferential to the

trial court. “Presumptions of validity and deference to a trial court as an independent
Licking County, Case No. 15-CA-31                                                        12

fact-finder are embodied in the abuse of discretion standard.” Howard v. Wilson, 186

Ohio App.3d 521, 2010-Ohio-1125, 928 N.E.2d 1180, ¶ 8 (2nd Dist.), citing Dayton v.

Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2nd Dist.1996).

       {¶27} In the instant case, the trial court’s decision is premised upon the

magistrate’s decision of April 21, 2014, the amended magistrate’s decision of April 22,

2014, and the trial court’s ruling upon Father’s objections as journalized on March 26,

2015. Each of these decisions arose from the evidentiary hearings which took place on

November 9, 2012; January 27-28, 2014; and February 21, 2014.                During these

hearings, both parties submitted a significant number of exhibits including at least two

reports of the guardian ad litem. Of these hearings, only the November 9, 2012 hearing

has been transcribed for our review, and that hearing pre-dates significant events in the

case history.

       {¶28} It is with regret in a case such as this, with so much at stake not only for

the parties but especially for D., that we must affirm the trial court’s decision on a basis

other than upon the merits. In light of the evidence, the trial court agreed with the

magistrate that a change in circumstances has occurred with respect to D. because the

parties “are unable to communicate reasonably effectively and have become unable to

effectively make joint parenting decisions regarding D.;” further, termination of the

shared parenting plan was in D.’s best interest. Father challenges these findings but the

record on appeal is incomplete; specifically, Father has failed to include the records of

the relevant hearings (with the exception of November 9, 2012), as required by App.R.
Licking County, Case No. 15-CA-31                                                    13


9.2 As appellant, Father bears the burden of ensuring that the record necessary to

determine the appeal is filed with the appellate court. App.R. 9(B). See State v.

Williams, 73 Ohio St.3d 153, 160, 652 N.E.2d 721 (1995). If the record is incomplete,

the reviewing court must presume the regularity of the trial court's proceedings and

affirm its decision. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d

384 (1980). See, also, Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500

(9th Dist.1993) (declaring where portions of record are omitted, which are necessary for

effective review, the appellate court must affirm).

       {¶29} The trial court explicitly based its findings, in part, on testimony and

evidence admitted at the hearings and, in the absence of the complete record, we must

presume that the evidence, combined with the record on appeal, supports the finding

that termination of the shared parenting plan is in the best interest of D. Jagusch v.

Jagusch, 9th Dist. Medina No. 02CA0036-M, 2003-Ohio-243, ¶ 35, citing Knapp, supra,

61 Ohio St.2d at 199; Wozniak, supra, 90 Ohio App.3d at 409.

       {¶30} Appellant’s first assignment of error is overruled.

                                                II.

       {¶31} In his second assignment of error, Father argues the trial court should

have granted his motion for new trial. We disagree.



2      Father has been pro se throughout much of this case (although he is represented
in this appeal). We note the United States Supreme Court has recognized a
constitutional right to appointment of counsel or to a transcript at the State's expense
only in appeals from orders permanently terminating parental rights. See M.L.B. v.
S.L.J. (1996), 519 U .S. 102. Appellant appeals from an ordering modifying custody and
terminating a shared parenting plan. As this case does not concern the permanent
termination of Appellant's parental rights, he does not have a constitutional right to
transcripts at the State's expense. Murray v. Murray, 9th Dist. Lorain No. 06CA008982,
2007-Ohio-3301 at ¶ 6, citing Knapp, supra, 61 Ohio St.2d at 199.
Licking County, Case No. 15-CA-31                                                        14


       {¶32} Civ.R. 59(A)(8) permits a new trial on the ground of newly discovered

evidence where such evidence is material for the party applying, and where it could not

with reasonable diligence have been discovered and produced at trial. Id. The standard

to be applied in determining whether to grant a new trial based on newly discovered

evidence is set forth in the third paragraph of the syllabus in Sheen v. Kubiac, 131 Ohio

St. 52, 1 N.E.2d 943 (1936), which provides:

                     To warrant the granting of a motion for a new trial based on

              the ground of newly discovered evidence, it must be shown that (1)

              the new evidence must be such as will probably change the result if

              a new trial is granted, (2) it must have been discovered since the

              trial, (3) it must be such as could not in the exercise of due

              diligence have been discovered before the trial, (4) it must be

              material to the issues, (5) it must not be merely cumulative to

              former evidence, and (6) it must not merely impeach or contradict

              the former evidence.

       {¶33} The decision whether to grant or deny a motion for new trial is committed

to the sound discretion of the trial court. State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998), citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990),

paragraph one of the syllabus; Taylor v. Ross, 150 Ohio St. 448, 83 N.E.2d 222 (1948),

at paragraph two of the syllabus. We will not reverse a trial court's denial of a motion for

new trial absent an abuse of that discretion. Sharp v. Norfolk & W. Ry. Co, 72 Ohio

St.3d 307, 313, 649 N.E.2d 1219 (1995). An abuse of discretion implies that a court's
Licking County, Case No. 15-CA-31                                                       15


ruling is unreasonable, arbitrary, or unconscionable; it is more than a mere error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶34} “In general, newly discovered evidence has been interpreted to mean

facts in existence at the time of trial of which the aggrieved party was excusably

ignorant.” In Re S.S., 9th Dist. Wayne No. 04CA0032, 2004–Ohio–5371, at ¶ 13, citing

Schwenk v. Schwenk, 2 Ohio App.3d 250, 253, 441 N.E.2d 631 (8th Dist.1982).

       {¶35} In the instant case, Father’s newly discovered evidence consists of

allegations a private investigation firm hired by Mother resulted in his criminal charges

and was hired with the “primary objective” of having Father criminally charged. Father

asserts the charges came about as a result of the private investigation rather than

through an investigation conducted by any law enforcement agency. It is not clear, and

Father does not point out, how this information changes his criminal culpability; he

remains convicted of the offenses he was charged with. Assuming arguendo the

criminal investigation was somehow instigated by Mother, Father was nevertheless

convicted and this information would not likely change the result of the custody

determination.

       {¶36} Because Father’s newly discovered evidence would not have changed the

result of the custody hearing, we find that the trial court did not abuse its discretion in

denying his motion for a new trial.

       {¶37} Father’s second assignment of error is overruled.
Licking County, Case No. 15-CA-31                                                16


                                    CONCLUSION

      {¶38} Father’s two assignments of error are overruled and the judgment of the

Licking County Court of Common Pleas, Domestic Relations Division is affirmed.

By: Delaney, J. and

Farmer, P.J.

Wise, J., concur.
