[Cite as Wright v. Wright, 2012-Ohio-1560.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



LEESA WRIGHT (AKA LLOYD WRIGHT)                     JUDGES:
                                                    Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                         Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-

STEVEN WRIGHT                                       Case No. 2011CA00129

        Defendant-Appellee                          OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Family Court Division, Case
                                                    No. 2004DR01383

JUDGMENT:                                           Reversed & Remanded



DATE OF JUDGMENT:                                   April 2, 2012



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

PAMELLA A. LAMMON                                   JENNIFER LOWRY
103 North Union Street                              116 Cleveland Avenue, NW
Suite D                                             Suite 800
Delaware, OH 43015                                  Canton, OH 44702

Guardian ad Litem

DWAINE R. HEMPHILL
P.O. Box 35697
Canton, OH 44735
Stark County, Case No. 2011CA00129                                                   2

Farmer, J.

      {¶1}   On June 22, 2005, appellant, Leesa Wright, aka Leesa Lloyd Wright, and

appellee, Steven Wright, were granted a divorce. The final decree incorporated the

parties' separation agreement wherein the parties' agreed to a shared parenting plan

regarding their child, Esaias, born as issue of the marriage on July 31, 2002. The

parties also have another child, Kaleena, born December 21, 1991 and adopted by

appellee during the marriage. Appellant was designated the residential parent and legal

custodian.

      {¶2}   On January 8, 2009, the parties entered into another shared parenting

agreement wherein appellee was designated the residential parent for school placement

purposes and medical decisions.

      {¶3}   In September of 2009, each party filed a motion for the reallocation of

parental rights and responsibilities.   Hearings before a magistrate were held on

February 16, March 31, and May 3 and 4, 2010. By decision filed August 3, 2010, the

magistrate terminated the shared parenting plan, designated appellee as the residential

parent and legal custodian, and ordered appellant to pay child support in the amount of

$50.00 per month. Appellant filed objections. A hearing was held on March 30, 2011.

By judgment entry filed April 18, 2011, the trial court ordered a limited remand to

address the issues of child support, health care, and the allocation of the dependency

exemption. A hearing was held on April 28, 2011. On May 5, 2011, the magistrate

issued a decision on these issues. By judgment entry filed May 9, 2011, the trial court

overruled appellant's objections and approved and adopted the magistrate's decision.
Stark County, Case No. 2011CA00129                                                         3


The trial court did not file findings of fact and conclusions of law and issued a final order

on May 16, 2011.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶5}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED

THE DESIGNATION OF RESIDENTIAL PARENT AND LEGAL CUSTODIAN

WITHOUT MAKING A DETERMINATION THAT A 'CHANGE OF CIRCUMSTANCES'

HAS OCCURRED, AS WELL AS FINDING THAT THE MODIFICATION IS IN THE

BEST INTEREST OF THE CHILD, PURSUANT TO R.C. 3109.04(E)(1)(a). THE TRIAL

COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT."

                                             II

       {¶6}   "THE    TRIAL     COURT      ABUSED       ITS    DISCRETION       WHEN      IT

PROCEEDED WITHOUT THE GUARDIAN AD LITEM'S ATTENDANCE FOR THE

ENTIRE TRIAL OR THE HEARING ON OBJECTIONS RELEASED HIM WITHOUT

ALLOWING COUNSEL TO FINISH EXAMINING HIM.                          THE TRIAL COURT'S

DECISION IS NOT REFLECTED IN THE TRANSCRIPT."

                                             III

       {¶7}   "THE    TRIAL     COURT      ABUSED       ITS    DISCRETION       WHEN      IT

DETERMINED THE CHILD WAS NOT COMPETENT, BUT DID NOT HOLD A

HEARING ON THIS ISSUE. THE TRIAL COURT'S DECISION IS NOT REFLECTED

IN THE TRANSCRIPT."
Stark County, Case No. 2011CA00129                                        4


                                     IV

     {¶8}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RENDERED

A CHILD SUPPORT ORDER WITHOUT GATHERING THE NECESSARY FINANCIAL

INFORMATION FROM THE PARTIES OR USING THIS DATA FROM THE FINANCIAL

AFFIDAVITS SUBMITTED BY BOTH PARTIES OR FROM TESTIMONY TAKEN

DURING THE TRIAL IN THE MATTER.           THE TRIAL COURT ALSO OMITTED

FINDINGS OF FACT AND CONCLUSIONS OF LAW TO SUPPORT A DEVIATION.

THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT."

                                      V

     {¶9}   "THE   TRIAL   COURT     ABUSED     ITS   DISCRETION   WHEN   IT

REPEATEDLY ALLOWED PREJUDICIAL HEARSAY TO COME IN AND BE

CONSIDERED,    OVER    THE   OBJECTION     OF   THE    PLAINTIFF/APPELLANTS

COUNSEL.    SOME OF THIS HEARSAY, SPECIFICALLY, THE PSYCHOLOGICAL

REPORT OF 2006, WAS OVER FOUR YEARS OLD, IN THE GUARDIAN AD LITEM'S

REPORTS AND WAS AGAIN HEARD IN TESTIMONY OF MULTIPLE WITNESSES

AND THROUGH WRITTEN EVIDENCE AND WAS USED AS A BASIS FOR THE

COURT'S BEST INTEREST ANALYSIS.       THIS REPORT WAS NEVER ADMITTED

INTO EVIDENCE, IS HIGHLY PREJUDICIAL, EFFECTS (SIC) A SUBSTANTIAL

RIGHT AND VIOLATES PLAINTIFF/APPELLANT'S CONSTITUTIONAL RIGHT TO

CONFRONTATION IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION. THE TRIAL COURT'S DECISION IS NOT REFLECTED IN

THE TRANSCRIPT, IS PREJUDICIAL AND AFFECTS A SUBSTANTIAL RIGHT."
Stark County, Case No. 2011CA00129                                                      5


                                            IV

      {¶10} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PUT A TIME

LIMIT ON THE TRIAL AND THE HEARING ON OBJECTIONS, DID NOT TAKE ANY

EVIDENCE AT THE EVIDENTIARY HEARING ON OBJECTIONS, THAT WERE

OVERRULED. THIS WAS PREJUDICIAL AND AFFECTED A SUBSTANTIAL RIGHT

OF PLAINTIFF/APPELLANT. THE TRIAL COURT'S DECISION IS NOT REFLECTED

IN THE TRANSCRIPT."

                                           VIII

      {¶11} "THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE WHEN IT TERMINATED THE PARTIES SHARED

PARENTING       PLAN    AND    DESIGNATED         THE   DEFENDANT/APPELLEE           THE

RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE PARTIES MINOR CHILD.

THE TRIAL COURT'S DECISION IS NOT REFLECTED IN THE TRANSCRIPT NOR

WAS THERE A FINDING OR DETERMINATION THAT A SUBSTANTIAL CHANGE OF

CIRCUMSTANCES HAD OCCURRED."

                                            I

      {¶12} Appellant claims the trial court erred in terminating the shared parenting

plan and designating appellee as the residential parent and legal custodian without

making a determination that a change of circumstances had occurred or that the change

was in the best interests of the child under R.C. 3109.04(E)(1)(a).

      {¶13} Appellee claims this argument was not raised in the objections to the

magistrate's decision and is therefore barred pursuant to Civ.R. 53(E)(3)(B)(iv) which

states, "[a] party shall not assign as error on appeal the court's adoption of any factual
Stark County, Case No. 2011CA00129                                                          6


finding of fact or legal conclusion***unless the party has objected to that finding or

conclusion as required by Civ.R. 53(D)(3)(b)."

          {¶14} On August 11, 2010, appellant filed objections to the magistrate's decision

and specifically objected to the following at No. 2:

          {¶15} "Page three, second full paragraph, wherein the Magistrate decided that

one factor of §3109.04(F) (2) would be determinative of whether or not a court should

terminate a Shared Parenting Plan because it misstates the law."

          {¶16} The magistrate's second full paragraph on page three of the decision filed

August 3, 2010, states the following:

          {¶17} "In determining whether shared parenting is in a child's best interest, all

relevant factors must be considered including but not limited to the factors in R.C.

3109.04(F)(1), the factors enumerated in R.C. 3119.23, and the five factors in R.C.

3109.04(F)(2). The five factors of R.C.3109.04(F)(2) include as follows. First, 'the

ability of the parents to cooperate and make decisions jointly, with respect to the

children.' Second, 'the ability of each parent to encourage the sharing of love, affection,

and contact between the child and the other parent.' Third, 'any history of, or potential

for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by

either parent.' Fourth, 'the geographic proximity of the parents to each other, as the

proximity relates to the parental considerations of shared parenting.'            Fifth, 'the

recommendation of the guardian ad litem of the child, if the child has a guardian ad

litem.'

          {¶18} The trial court prefaced this paragraph with the following determination:
Stark County, Case No. 2011CA00129                                                      7


       {¶19} "The approval of a shared parenting plan under R.C. 3109.04(D)(1)(a)(i) is

conditioned on a request from both parties and the submission of a joint plan. The

approval of shared parenting under R.C. 3109.04(D)(1)(a)(ii) also requires a joint

request however the parties each submit separate shared parenting plans. Meanwhile,

under R.C. 3109.04(D)(1)(a)(iii), just one party requests shared parenting and that party

also submits a plan. In the instant case, the scenario under R.C. 3109.04(D)(1)(a)(iii)

best describes the circumstances which resulted in the approval of the parties' Shared

Parenting Plan. Although both parties executed the Shared Parenting Plan, but one

party, the Defendant actually filed a motion for the reallocation of parental rights. As a

result, the termination of the Shared Parenting Plan in this case hinges on a finding of

best interest."

       {¶20} The magistrate concluded the following:

       {¶21} "In summary, four of the five factors contained in R.C. 3109.04(F)(2)

supports the termination of shared parenting. Meanwhile, the factors set forth in R.C.

3109.04(F)(1) and R.C. 3119.23 are not supportive of maintaining the parties' Shared

Parenting Plan.    For these reasons, it is recommended that the parties' Shared

Parenting Plan be terminated."

       {¶22} Although the cited objection was not specific as to the lack of a change of

circumstances determination, it claimed the law was misstated. This is true based upon

the Supreme Court of Ohio's analysis of the facts necessary to terminate a shared

parenting agreement in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589. The

Fisher case involved a shared parenting plan and two motions for the reallocation of
Stark County, Case No. 2011CA00129                                                        8


parental rights and responsibilities filed by each parent as the case sub judice. The

Fisher court answered the following conflict question in the negative at ¶1:

       {¶23} " 'Is a change in the designation of residential parent and legal custodian

of children a "term" of a court approved shared parenting decree, allowing the

designation to be modified solely on a finding that the modification is in the best interest

of the children pursuant to R.C. 3109.04(E)(2)(b) and without a determination that a

"change in circumstances" has occurred pursuant to R.C. 3109.04(E)(1)(a)?' "

       {¶24} The Fisher court concluded the following at ¶37:

       {¶25} "In conclusion, we hold that 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, pursuant to R.C. 3109.04(E)(1)(a)."

       {¶26} Based upon the Fisher holding, we reverse the trial court's decision and

remand the matter for a determination on "change of circumstances" prior to entering

into a best interests analysis.

       {¶27} Assignment of Error I is granted.

       {¶28} Consistent with our decision in Assignment of Error I, we find the

remaining assignments to be moot.
Stark County, Case No. 2011CA00129                                                 9


      {¶29} The judgment of the Court of Common Pleas of Stark County, Ohio,

Family Court Division is hereby reversed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                            s/ Sheila G. Farmer________________



                                            s/ John W. Wise___________________



                                            _s/ Julie A. Edwards________________

                                                        JUDGES



SGF/sg 130
[Cite as Wright v. Wright, 2012-Ohio-1560.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



LEESA WRIGHT (AKA LLOYD WRIGHT)               :
                                              :
        Plaintiff-Appellant                   :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
STEVEN WRIGHT                                 :
                                              :
        Defendant-Appellee                    :        CASE NO. 2011CA00129




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is

reversed, and the matter is remanded to said court for further proceedings consistent

with this opinion. Costs to appellee.




                                              s/ Sheila G. Farmer________________



                                              s/ John W. Wise___________________



                                              _s/ Julie A. Edwards________________

                                                        JUDGES
