[Cite as Bell v. Bell, 2017-Ohio-1252.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

JESSICA BELL, NKA RUFENER                         JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2016AP110053
JAMES BELL, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Tuscarawas County Court
                                               of Common Pleas, Case No.
                                               2014TC060235


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        April 3, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

DAN GUINN                                      MICHAEL C. JOHNSON
Guinn Law Firm, LLC                            Johnson, Urban & Range Co., LPA
104 South Broadway Street                      117 South Broadway
PO Box 804                                     PO Box 1007
New Philadelphia, Ohio 44663                   New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2016AP110053                                              2

Hoffman, P.J.



       {¶1}   Defendant-appellant James Bell, Jr. (“Father”) appeals the October 20,

2016 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which

overruled his objections to the magistrate’s July 14, 2016 decision, and approved and

adopted the magistrate’s findings of fact and conclusions of law with modifications.

Plaintiff-appellee is Jessica Bell, nka Jessica Rufener (“Mother”).

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The parties were married on February 12, 2000, in New Philadelphia,

Tuscarawas County, Ohio. Two children were born as issue of the marriage, to wit:

Dakota Bell (DOB 07/12/00) and Autumn Bell (DOB 12/22/2003). Mother filed a complaint

for divorce on June 18, 2014. The parties entered into a shared parenting plan as well

as a separation agreement which were incorporated into the divorce decree filed February

25, 2015.

       {¶3}   The shared parenting plan named Father as the primary residential parent

of Dakota and Mother as the primary residential parent of Autumn. The shared parenting

plan required Mother and Dakota to continue counseling, working towards standard

visitation. In addition, the shared parenting plan provided:



              So long as Dakota is home schooled, he shall attend QDA [Quaker

       Digital Academy] classroom not less than three days per week for not less
Tuscarawas County, Case No. 2016AP110053                                                  3


       than two hours1. Father shall provide transportation for two trips each week

       and Mother shall provide transportation for one trip each week.



       {¶4}   Mother filed a motion to reallocate parental rights and responsibilities with

respect to Dakota on August 21, 2015. Therein, Mother asserted it was no longer in

Dakota’s best interest for Father to be his residential parent and legal custodian. Mother

maintained, contrary to the shared parenting plan, Father was not ensuring Dakota’s

attendance at QDA during the week and was not properly supervising Dakota. Mother

added Father was no longer facilitating visitation between her and Dakota, was not

attending to Dakota’s medical issues, and was not exercising his parenting time with

Autumn.

       {¶5}   At a hearing before the magistrate on January 15, 2016, the parties reached

an agreement as to some of the issues raised in Mother’s motion. The magistrate issued

an Interim Order on January 19, 2016, adopting the parties’ agreement. The Order

provided Dakota would attend the physical location of QDA Monday through Friday, 9:00

am to 3:00 pm; and complete his current economics class by the end of January, 2016,

and make significant progress in his next scheduled class. The parties anticipated Dakota

would be at high school sophomore grade level by June 3, 2016, as he was approximately

one and a half years behind in school. The Order further provided if Dakota failed to attend

QDA five hours per day or did not show the required percentage of progress, he would

be immediately transferred to the local public high school.


1 Quaker Digital Academy is an on-line home school program which also has physical
site where students can go to complete school work and receive academic assistance
as well as other supports.
Tuscarawas County, Case No. 2016AP110053                                                 4


      {¶6}   The magistrate conducted a full hearing on Mother’s motion on June 14,

2016. Via Magistrate’s Decision filed July 14, 2016, the magistrate recommended no

change in custody, but ordered Dakota be enrolled in traditional public high school in

Father’s school district for the 2016-2017 academic year.         The magistrate further

recommended both parties actively participate in the reunification counseling to repair

Dakota’s relationship with Mother and follow all recommendations of Dakota’s counselor,

and Dakota continue to participate in individual counseling until successfully discharged

by his counselor.

      {¶7}   Father filed objections to the magistrate’s decision on July 27, 2016.

Specifically, Father objected to the magistrate’s finding Dakota’s school attendance and

progress remained substandard, and argued the child should not be forced to go to public

school.   Father also challenged the magistrate’s failure to rule on the issue of

reimbursement to him for medical insurance costs. Mother also filed timely objections

relative to the magistrate’s decision not to change custody of Dakota.

      {¶8}   Via Judgment Entry filed October 20, 2016, the trial court overruled Father’s

objections to the magistrate’s decision, and overruled in part, and sustained in part

Mother’s objections. The trial court approved and adopted the magistrate’s findings of

fact and conclusions of law with modifications.

      {¶9}   It is from that judgment entry Father appeals, raising the following as error:



             I. THE TRIAL COURT COMMITTED AN ERROR IN LAW BY ORDERING

      THE 16 YEAR OLD CHILD TO BE ENROLLED IN THE NEW PHILADELPHIA

      PUBLIC        SCHOOL   PHYSICAL      BUILDING      FOR    SCHOOL       PURPOSES.
Tuscarawas County, Case No. 2016AP110053                                                    5


         FURTHER, THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

         ORDERING THE CHILD INTO PUBLIC SCHOOL FROM THE QUAKER DIGITAL

         ACADEMY.



                                                  I

         {¶10} In his sole assignment of error, Father contends the trial court erred and

abused its discretion in ordering Dakota be enrolled in traditional public high school rather

than continue online schooling. Father maintains because the trial court did not modify

custody, he, as the residential parent, is entitled to determine where Dakota attends

school. We disagree.

         {¶11} We begin by noting, the court in which a decree of divorce is originally

rendered retains continuing jurisdiction over matters relating to the custody, care, and

support of the minor children of the parties. In re Poling (1992), 64 Ohio St.3d 211,215,

594 N.E.2d 589, citing, Corbett v. Corbett (1930), 123 Ohio St. 76, 174 N.E. 10; Juv. R.

75(J).

         {¶12} We review a trial court's decision to modify a shared parenting plan for an

abuse of discretion. Girdlestone v. Girdlestone, 5th Dist. Stark No. 2016 CA 00019, 2016-

Ohio-8073, ¶ 12. The term abuse of discretion “connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. “[T]he power

of the trial court to exercise discretion is peculiarly important in proceedings involving the

custody and welfare of children.” Kenney v. Kenney, 12th Dist. No. CA2003–07–078,

2004–Ohio–3912, ¶ 6.
Tuscarawas County, Case No. 2016AP110053                                                 6


      {¶13} 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.

Girdlestone, ¶ 11. See, also, Ford v. Ford, 5th Dist. Tuscarawas No.2012 AP 03 0025,

2012–Ohio–5454, ¶ 13.

      {¶14} R.C. 3109.04(E)(2)(b) provides:



             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.



      {¶15} The parties' shared parenting plan, which was incorporated into the divorce

decree, provided:



             So long as Dakota is home schooled, he shall attend QDA classroom

      not less than three days per week for not less than two hours. Father shall
Tuscarawas County, Case No. 2016AP110053                                               7


      provide transportation for two trips each week and Mother shall provide

      transportation for one trip each week.



      {¶16} Mother filed a motion to reallocate parental rights and responsibilities due,

in part, to Dakota’s poor performance at QDA and Father’s failure to address the issue.

The magistrate conducted an initial hearing on January 15, 2016, at which the parties

reached certain agreements with respect to Dakota’s schooling. The magistrate issued

an Order on January 19, 2016, which memorialized the parties’ interim agreements. The

Order specifically provided:



            The parties further agree that Dakota, who is attending QDA, will

      attend the QDA physical school at New Towne Mall Monday through Friday.

      [Father] will drop Dakota off at the maternal grandmother’s home on his way

      to work each Monday through Friday.        Maternal grandmother will take

      Dakota to QDA and have him there by 9:00 a.m. each day. Maternal

      grandmother will pick Dakota up from QDA at 3:00 p.m. each day and return

      him to [Father’s] home. If the QDA office at the New Towne Mall is closed,

      Dakota will be responsible for completing five hours of schoolwork for each

      day they are closed, the week prior to them being closed. * * * The Guardian

      ad Litem will be in regular contact with QDA to verify that Dakota is signed

      into his QDA account for at least five hours each Monday through Friday

      and she will verify that an additional five hours was completed the week

      prior to any day that QDA is closed.
Tuscarawas County, Case No. 2016AP110053                                               8


            The parties agree that they will insure that Dakota completes his

      current economics class by the end of January 2016 and that immediately

      upon completion of that class * * * Dakota will make significant progress in

      his next scheduled class, which is his math class. The Guardian ad Litem

      will obtain from QDA guidelines as to the percent of progress that should

      reasonably be expected from Dakota in class each week. She will provide

      that at the review hearing. The parties anticipate that Dakota will be at

      grade level by 06/03/2016. Grade level at that time should be to have

      completed his sophomore year of high school.

            The parties agree that if Dakota does not attend five hours per day

      or if Dakota does not show the required percentage of progress, that he will

      be immediately transferred to the New Philadelphia High School.

            ***

            The Magistrate finds the above agreement to be in the best interest

      of the child and both parties testified under oath they believed this was in

      the best interest of the child. January 19, 2016 Magistrate’s Order at 2-4.



      {¶17} The record reveals, as of the June 14, 2016 magistrate’s hearing, Dakota

remained a year behind in his academics. While in public school, Dakota earned excellent

grades, however, his final grades at QDA were 2 B’s, a C, and a D. Dakota had not

completed a PE class and had not commenced his Biology class. Dakota did not receive

any assistance or socialization through QDA. He was no longer involved in extracurricular

activities. Although Dakota attended QDA the required five hours per day, he spent up
Tuscarawas County, Case No. 2016AP110053                                                    9


to seven hours each day playing video games. The Guardian ad Litem recommended

Dakota be immediately enrolled in New Philadelphia High School. The magistrate found

the problems with Dakota’s schooling had not been resolved over the course of 18

months.

       {¶18} Based upon the foregoing and the entire record in this matter, we find the

trial court did not abuse its discretion in ordering Dakota attend traditional public school.

       {¶19} Father’s sole assignment of error is overruled.

       {¶20} The judgment of the Tuscarawas Court of Common Pleas is affirmed.


By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
