[Cite as Kougher v. Kougher, 194 Ohio App.3d 703, 2011-Ohio-3411.]




                          STATE OF OHIO, MAHONING COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


KOUGHER                                         )       CASE NO. 10 MA 54
                                                )
        APPELLEE ,                              )
                                                )
v.                                              )       OPINION
                                                )
KOUGHER,                                        )
                                                )
        APPELLANT.)

CHARACTER OF PROCEEDINGS:                               Civil Appeal from the Court of Common
                                                        Pleas, Domestic Relations Division, of
                                                        Mahoning County, Ohio
                                                        Case No. 08 DR 497

JUDGMENT:                                               Vacated. Remanded.

APPEARANCES:

Mark Lavelle, for appellee


James E. Lanzo, for appellant

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                        Dated: June 29, 2011
                                                                                    -2-


WAITE, Presiding Judge

      {¶ 1} Appellant, Charles E. Kougher Jr., appeals the decision of the

Mahoning County Court of Common Pleas, overruling his motion to terminate shared

parenting. Appellant and appellee Tara C. Kougher agreed to shared parenting of

their seven-year-old child as part of their divorce decree. Appellant contends that the

trial court used the wrong standard in reviewing the motion to terminate shared

parenting. Appellant argues that a motion to completely terminate shared parenting

is reviewed under a standard different from a motion to modify shared parenting.

Although the Ohio Supreme Court in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-

Ohio-5589, 876 N.E.2d 546, required courts to first find a change in circumstances

when modifying shared parenting, appellant argues that no change in circumstances

is required when a party requests a complete termination of the shared-parenting

decree. Appellee has not filed a brief in this appeal. Appellant is correct that under

R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting decree without the

need to first find that a change in circumstances has occurred. While the trial court

relied on our holding in Surgenavic v. Surgenavic, 7th Dist. No. 08 MA 29, 2009-

Ohio-1028, the trial court has misinterpreted that holding. We specifically stated in

Surgenavic that “R.C. 3109.04(E)(2)(c) is not applicable * * *” in that case. Thus, we

had no need to discuss or interpret R.C. 3109.04(E)(2)(c) at that time. Id. at ¶ 9. In

the instant appeal, however, appellant directly relies on an interpretation and

application of R.C. 3109.04(E)(2)(c), and there has been no rebuttal from appellee.

We agree with appellant that his motion to terminate shared parenting should not
                                                                                     -3-

have been overruled based on the failure to argue or find a change in circumstances.

Instead, the trial court should have looked solely at the best interests of the child in

determining whether to grant or deny the motion. The judgment of the trial court is

hereby vacated, and the matter is remanded for review based on that standard.

                                  History of the Case

      {¶ 2} The parties were married on July 19, 2002. One child was born during

the marriage. The parties did have another child together prior to their marriage, but

custody of this child falls under the jurisdiction of the Mahoning County Court of

Common Pleas, Juvenile Division, and is not at issue in this appeal. Appellee Tara

Kougher filed for divorce on September 2, 2008, and the case was assigned to a

magistrate. Appellant filed a pro se answer to the complaint and requested to be

designated as the residential parent of the child. The court designated him as the

child’s residential parent during the divorce proceedings because he had been the

primary caregiver. On March 9, 2009, appellant obtained counsel to represent him in

the divorce proceedings. The parties negotiated a separation agreement, and the

agreement was incorporated into the subsequent decree of divorce. The parties

incorporated a shared-parenting order into their separation agreement, and this also

became part of the divorce decree. Although appellant agreed to shared parenting

prior to the magistrate’s final decision, he had misgivings shortly after the magistrate

filed his decision granting the divorce. Appellant filed objections to the magistrate’s

decision.   The objections were subsequently overruled on July 1, 2009, and the

shared-parenting order was made a part of the divorce decree.
                                                                                   -4-

       {¶ 3} On August 8, 2009, appellant filed a motion to terminate shared

parenting. In the motion, appellant sought complete termination of shared parenting;

he did not seek modification of the shared-parenting order. The magistrate had a

hearing during which the sole issue was whether there had been a change in

circumstances since the issuance of the divorce decree approximately one month

earlier. The magistrate found that there had been no change in circumstances and

overruled the motion on December 9, 2009.          Appellant filed objections to the

magistrate’s decision, and these were overruled on March 1, 2010. Appellant filed

this timely appeal on March 31, 2010. Appellee has not filed a brief in this appeal.

Under App.R. 18(C), we “may accept the appellant's statement of the facts and

issues as correct and reverse the judgment if appellant's brief reasonably appears to

sustain such action.”

                              ASSIGNMENT OF ERROR

       {¶ 4} “The trial court erred by applying the decision in Fisher v. Hasenjager,

2007-Ohio-5589 to a motion to terminate an original shared parenting order pursuant

to R.C. 3109.04(E)(2)(c), thus requiring a change of circumstances in contradiction to

the clear language of the statute.”

       {¶ 5} Appellant argues that the trial court erroneously applied the holding

found in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546,

which requires the court to find a change in circumstances before modifying parental

rights in a shared-parenting decree.    Appellant contends that Fisher is limited to

situations in which a party is attempting to modify, rather than terminate, a shared-
                                                                                      -5-

parenting decree. Appellant is correct that Fisher dealt with a problem arising from a

request to modify parental rights under a shared-parenting decree rather than a

motion to completely terminate such a decree. Fisher specifically dealt with a dispute

between the application of R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b). R.C.

3109.04(E)(1)(a) requires that before modifying a shared-parenting decree, a trial

court must first find that a change in circumstances has occurred, while R.C.

3109.04(E)(2)(b) deals with the modification of a shared-parenting plan.            This

modification requires a finding that it is being done in the best interests of the child.

Id. at ¶ 10. Importantly, both provisions deal with modifications to shared parenting,

rather than complete termination of shared parenting.

       {¶ 6} Fisher emphasized that it was dealing with situations in which a party

wants to maintain some aspects of shared parenting, but also asks the court to

modify in some way the allocation of parental rights, such as the designation of who

is the residential parent. Fisher was interpreting R.C. 3109.04(E)(1)(a), which states:

       {¶ 7} “(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
                                                                                      -6-

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:

       {¶ 8} “(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.

       {¶ 9} “(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.

       {¶ 10} “(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.”

       {¶ 11} Although the language of R.C. 3109.04(E)(1)(a) appears, at first glance,

to cover all situations dealing with any change to a shared parenting decree, the next

section of the statute clearly provides an alternative review when a party desires to

completely terminate shared parenting. R.C. 3109.04(E)(2)(c) states:

       {¶ 12} “(2) In addition to a modification authorized under division (E)(1) of this

section:

       {¶ 13} “* * *

       {¶ 14} “(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
                                                                                         -7-

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 final shared parenting decree if it determines that shared parenting is

not in the best interest of the children.” (Emphasis added.)

       {¶ 15} The wording of the statute leads to the inescapable conclusion that

R.C. 3109.04(E)(2) and its subsections provide different procedures from those set

forth in R.C. 3109.04(E)(1) and its subsections. Fisher specifically did not decide

whether the change of circumstances required under an R.C. 3109.04(E)(1)(a)

modification review had any bearing on a review pursuant to R.C. 3109.04(E)(2)(c).

Fisher noted that the case had come to the court with certain assumptions already

established from the appellate court’s decision: “Despite the trial court's language

‘terminating’ the parties' shared-parenting plan, the court of appeals reviewed the

parties' motions and the trial court's entry and determined that the trial court had not

terminated the parties' shared-parenting plan but instead had modified the plan. As a

result, the court of appeals determined that R.C. 3109.04(E)(2)(c) did not apply.

Further, because the parties did not jointly move to modify their shared-parenting

decree, R.C. 3109.04(E)(2)(a) also was not applicable.” Fisher, 116 Ohio St.3d 53,

2007-Ohio-5589, 876 N.E.2d 546, at ¶ 6.
                                                                                       -8-

       {¶ 16} “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).” Id. at ¶ 37.

       {¶ 17} Obviously the court in Fisher was aware that different sections of R.C.

3109.04(E) apply different standards, depending on the relief that is actually being

sought by the parties.         “Finally, we note that R.C. 3109.04(E)(1)(a) and

3109.04(E)(2)(b) contain significantly different standards for modifications. * * * To

read both sections, with different standards, to apply to a court's analysis modifying

the decree modifying a child's residential parent and legal custodian would create

inconsistency in the statute. Two different standards cannot be applied to the same

situation.” Id. at ¶ 32. The court’s analysis applies equally to the standard found in

R.C. 3109.04(E)(2)(c), which is different from the one set forth in R.C.

3109.04(E)(1)(a). Each section of the statute must be interpreted on its own terms as

well as in relationship to other parts of the statute. If the statute itself unequivocally

states that a best-interests test, alone, applies in determining a motion to completely

terminate shared parenting, then there is no basis to first apply the test to determine

whether a change in circumstances exists.

       {¶ 18} Although this court, in Surgenavic, 2009-Ohio-1028, did apply Fisher to

a case involving termination of a shared-parenting plan, it has not yet applied Fisher

to a case involving a motion that seeks complete termination of shared parenting,

which includes the termination of the shared-parenting decree as well as the shared-
                                                                                   -9-

parenting plan. As noted in Fisher, there are major differences between the shared-

parenting plan (which implements the specific day-to-day details of shared parenting)

and the decree itself (the order granting shared-parenting rights or designating

parental rights and responsibilities).     When the shared-parenting decree is

terminated, the court must start from scratch and create a completely new parenting

order, acting as if there had never been any earlier allocation of parenting rights.

R.C. 3109.04(E)(2)(d).    The appellate courts that have dealt with this specific

question have concluded that R.C. 3109.04(E)(2)(c), clearly labeled in the statute as

a different procedure from that detailed in R.C. 3109.04(E)(1)(a), requires only that

the termination of a shared-parenting decree be in the best interests of the child and

that Fisher does not apply to R.C. 3109.04(E)(2)(c): Beismann v. Beismann, 2d Dist.

No. 22323, 2008-Ohio-984, ¶11-13; Francis v. McDermott, 2d Dist. No. 1753, 2009-

Ohio-4323, ¶ 9-10; In re J.L.R., 4th Dist. No. 08 CA 17, 2009-Ohio-5812, ¶ 28;

Clyburn v. Gregg, 4th Dist. No. 09CA3115, 2010-Ohio-4508, ¶ 10, fn. 1; Rogers v.

Rogers, 6th Dist. No. H-07-024, 2008-Ohio-1790, ¶ 11-13; Poshe v. Chisler, 11th

Dist. No. 2010-L-017, 2011-Ohio-1165, ¶ 21. Each of these cases determined that it

would be erroneous to apply a change-of-circumstances test when dealing with a

motion to completely terminate shared parenting pursuant to R.C. 3109.04(E)(2)(c).

      {¶ 19} The trial court cited a number of appellate opinions supposedly taking

the opposite view. The first of these, In re Illig, 3d Dist. No. 12-08-26, 2009-Ohio-

916, does not interpret R.C. 3109.04(E)(2)(c) or apply it, and the fact that the court

was required to find a change in circumstances was not being challenged on appeal.
                                                                                    -10-

The second case, Sims v. Durant, 5th Dist. No. 2008-CA-27, 2008-Ohio-6442,

appears to be a summary opinion reviewing the weight of the evidence in support of

the finding that a change in circumstances occurred. The parties did not appear to

raise whether the change in circumstances test was appropriate, but only whether the

evidence of record supported the magistrate’s findings.             Once again, R.C.

3109.04(E)(2)(c) is not interpreted or even mentioned.

       {¶ 20} The third and fourth cases cited by the trial court deal specifically with

termination of a shared-parenting plan rather than a motion for complete termination

of the shared-parenting decree and plan pursuant to R.C. 3109.04(E)(2)(c). Thus,

these cases do fall squarely under the Fisher holding. Because it was inapplicable,

R.C. 3109.04(E)(2)(c) is not mentioned or discussed in either case. Posey v. Posey,

4th Dist. No. 07CA2968, 2008-Ohio-536; Caldwell v. Caldwell, 12th Dist. Nos.

CA2008-02-0019, and CA2008-03-021, 2009-Ohio-2201.

       {¶ 21} We are not aware of any caselaw in which, when the court was

confronted directly with the interpretation and application of R.C. 3109.04(E)(2)(c), a

different conclusion was reached and the court specifically held that the change-in-

circumstances test was a threshold requirement to decide a motion seeking complete

termination of shared parenting.

       {¶ 22} Although there is, in the most technical sense, no document in this

record specifically captioned as a “shared parenting decree,” the order that appellant

is attempting to terminate in its entirety is, in all respects, a shared-parenting decree

incorporating a shared-parenting plan. Appellant requested a complete termination
                                                                                    -11-

of all aspects of shared parenting, and the trial court should have applied R.C.

3109.04(E)(2)(c) and utilized only the “best interests” test. As clearly stated in R.C.

3109.04(E)(2)(c), “[t]he 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.” This statutory subsection was not

reviewed in the majority opinion of the Ohio Supreme Court’s Fisher case, and we

must allow the plain words of the statute to speak for themselves.

       {¶ 23} The dissent in this appeal provides a lengthy argument that, in essence,

R.C. 3109.04(E)(2)(c) does not mean what it says and should be ignored, and that

the Ohio Supreme Court’s Fisher opinion requires that the change-of-circumstances

test be applied when terminating a shared-parenting decree pursuant to R.C.

3109.04(E)(2)(c).   Unfortunately, the dissent’s argument appears to be based on

three rather important erroneous assumptions. Initially, the dissent assumes that

Fisher encompassed a ruling requiring the change-of-circumstances test to be

applied to R.C. 3109.04(E)(2)(c), when in fact, Fisher did not. Fisher did not even

discuss R.C. 3109.04(E)(2)(c).      Hence, the dissent’s interpretation of Fisher as

support for that specific statutory section is puzzling. Second, the dissent assumes

that Surgenavic, 2009-Ohio-1028, involved interpretation of, or a ruling on, R.C.

3109.04(E)(2)(c) and thus provides precedent for applying the change-of-

circumstances test in this appeal. As stated above, in Surgenavic, we clearly stated

that R.C. 3109.04(E)(2)(c) was not applicable, and thus, that statutory section was
                                                                                    -12-

not reviewed. Id. at ¶ 9. Third, the dissent assumes that the General Assembly did

not intend to enact the language as it clearly appears in R.C. 3109.04(E)(2), namely,

that section (E)(2) “is in addition to a modification authorized under division (E)(1) of

this section.” We cannot share in this assumption, either.

       {¶ 24} We also note that the dissent creates and addresses an argument that

was never raised in this matter, since appellee did not file a brief and, thus, presented

no argument at all. When the appellee fails to file a brief, App.R. 18(C) directs us to

accept the appellant’s statement of the facts and issues as correct and to reverse the

judgment if it appears reasonably warranted. We are not, however, directed to make

appellee’s arguments for her. Appellant’s arguments are sound and reasonable, and

a number of cases from other appellate districts also find the argument made by

appellant to be reasonable. Although there may be equally reasonable arguments

supporting an outcome different from the one we have reached, those have not been

made in this appeal. Appellant’s assignment of error is sustained.

                                      Conclusion

       {¶ 25} Appellant sought to terminate shared parenting by invoking R.C.

3109.04(E)(2)(c), which allows a party to file a motion to terminate a shared-

parenting decree (and the accompanying shared-parenting plan) in the best interests

of the child. Appellant has alleged that the trial court erred by requiring him to show

that a change in circumstances occurred before terminating shared parenting.

Appellant is correct that the Ohio Supreme Court’s holding in Fisher, 116 Ohio St.3d

53, 2007-Ohio-5589, 876 N.E. 2d 546, does not require a finding of a change in
                                                                                     -13-

circumstances when a party attempts to completely terminate a shared-parenting

decree under R.C. 3109.04(E)(2)(c). As appellee makes no argument, and pursuant

to App.R. 18(C), we sustain appellant’s assignment of error. We hereby vacate the

judgment of the trial court and remand this case so that the trial court may determine

whether the termination of shared parenting is in the best interests of the child.

                                                                      Judgment vacated

                                                                  and cause remanded.


Vukovich, J., concurs.

DeGenaro, J., dissents.



       DeGenaro, J., dissenting.

       {¶ 26} The majority and I differ on how to interpret Fisher v. Hasenjager, 116

Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546; Surgenavic v. Surgenavic, 7th Dist.

No. 08 MA 29, 2009-Ohio-1028; and R.C. 3109.04. As I read the statute and Fisher,

there is a three-part analysis a trial court must engage in before modifying the

allocation of parental rights and responsibilities where the original decree making the

allocation designated both parents as residential parent and incorporated a shared-

parenting plan rather than a visitation plan: first, a change in circumstances must be

found pursuant to R.C. 3109.04(E)(1)(a); second, it must be determined whether it is

in the best interest of the child(ren) to terminate the shared-parenting pursuant to

(E)(2)(c); third, pursuant to (E)(2)(d), modification of the decree with respect to the

designation of the residential parent must be made pursuant to the best-interest
                                                                                       -14-

factors contained in (F)(1) in accordance with the procedures in (A), (B) and (C).

Further, this court's decision in Surgenavic succinctly and correctly followed Fisher,

as did In re Illig, 3rd Dist. No. 13-08-26, 2009-Ohio-916. For these reasons I would

affirm the trial court and certify a conflict to the Ohio Supreme Court.

       {¶ 27} The Supreme Court in Fisher was split in its interpretation of R.C.

3109.04. That appellate districts in this state, as well this district internally, differ in

how to interpret Fisher and R.C. 3109.04 in the context of modifying an original

decree designating parental rights and responsibilities that incorporates a shared-

parenting plan, rather than the more common circumstance of a visitation plan,

makes the cumbersome nature of the statute self-evident. It also makes the case for

statutes to be crafted in such a fashion that they address single issues. That said,

review of the trial court's decision must begin with a review of R.C. 3109.04.

       {¶ 28} Principles of statutory construction dictate that courts determine

legislative intent by analyzing the purpose of the statute and the language of the

statute itself, and in doing so reading language regarding the same subject in pari

materia. Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 20. Thus,

the entirety of R.C. 3109.04 must be discussed. R.C. 3109.04 governs the initial

allocation of parental rights and responsibilities and the procedure to follow, the

factors to consider, and the options available to the trial court in doing so. The

statute likewise governs the process, factors, and options when the trial court is

considering whether or not to modify the original allocation.
                                                                                               -15-

       {¶ 29} R.C. 3109.04(A) provides that in any proceeding pertinent to the

allocation of parental rights and responsibilities, the court shall make the allocation

either (1) "primarily to one of the parents, designate that parent as the residential

parent and the legal custodian of the child, and divide between the parents the other

rights and responsibilities for the care of the children, including, but not limited to, the

responsibility to provide support for the children and the right of the parent who is not

the residential parent to have continuing contact with the children," R.C.

3109.04(A)(1); or (2) "to both parents and issue a shared parenting order requiring

the parents to share all or some of the aspects of the physical and legal care of the

children in accordance with the approved plan for shared parenting."                          R.C.

3109.04(A)(2). The first circumstance is more common, where the original decree

designates one parent as the residential parent, with the other parent's rights to

companionship and care for the child(ren) governed by a visitation plan.                    In the

second circumstance, which is at issue here, the original decree designates both

parents1 as residential parent, with companionship and care for the child(ren)

governed by a shared-parenting plan.

       {¶ 30} When allocating parental rights and responsibilities "in an original

proceeding or in any proceeding for modification of a prior order of the court making

the allocation, the court shall take into account that which would be in the best

interest of the children." R.C. 3109.04(B)(1). The best-interest factors listed in R.C.


1
  This occurs in most cases; however, courts have named only one parent as residential parent in the
original decree that incorporates a shared-parenting plan -- for example In re J.L.R., 4th Dist. No.
08CA17, 2009-Ohio-5812. This factual distinction does not affect the analysis and is provided for
factual accuracy.
                                                                                     -16-

3109.04(F)(1)(a) through (j) are to be considered in either "an original decree

allocating parental rights and responsibilities for the care of children or a modification

of a decree allocating those rights and responsibilities." In addition to these ten

factors, when a trial court is considering whether shared parenting is in the best

interest of the child(ren), five additional factors must be considered.              R.C.

3109.04(F)(2). If either/both parents files a motion "requesting the court to grant both

parents shared parental rights and responsibilities" pursuant to R.C. 3109.04(G), the

procedure to be followed by the trial court is contained in subpart (D). If shared

parenting is approved, the plan "shall be incorporated into a final shared parenting

decree granting the parents the shared parenting of the children."            (Emphasis

added.) R.C. 3109.04(D)(1)(d).

       {¶ 31} Such is the process for an original allocation of parental rights and

responsibilities, which is journalized in a decree of divorce, dissolution, etc., and

incorporates either a visitation plan or a shared-parenting plan. Which type of plan is

adopted by the trial court is driven by how it allocated parental rights and

responsibilities in its decree, to one or both parents. Further, the above statutory

language also guides the modification of the original decree's allocation of parental

rights and responsibilities.

       {¶ 32} When either or both parents seek to modify the designation of the

residential parent in a prior decree, R.C. 3109.04(E)(1) is the only mechanism to do

so. Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 21. This

subpart of the statute, quoted by the majority above at ¶ 7-10, sets the burden of
                                                                                                     -17-

proof that the moving party must meet and the standard the trial court must apply, in

order to modify what is colloquially referred to as a prior custody order. But as noted

in Fisher, key terms for analytical purposes are not defined by the statute: “parental

rights and responsibilities,” “custody and control,” “residential parent,” and “legal

custodian.”     Id. at ¶ 22-23.        The court synthesized these terms by holding that

“parental rights and responsibilities” is the right to ultimate legal and physical control

of a child, and these rights reside in the party or parties whom the trial court

designates as residential parent and legal custodian. (Emphasis added.) Id.

        {¶ 33} Based upon this rationale and language from subpart (A)(2) and

subpart (L)(6),2 Fisher concluded that a shared-parenting order allocates parental

rights and responsibilities; and in the absence of a specific designation or the context

of the decree indicating otherwise, "each parent is a residential parent and legal

custodian of the child[.]"         Fisher at ¶ 24-25.          "Therefore, R.C. 3109.04(E)(1)(a)

controls when a court modifies an order designating the residential parent and legal

custodian." (Emphasis added.) Id. at ¶ 26.

        {¶ 34} This brings us to the crux of this appeal and where I dissent from the

majority's analysis. As this court in Surgenavic succinctly and correctly held:

        {¶ 35} "Although Appellee requested 'termination' of the shared parenting

plan, R.C. 3109.04(E)(2)(c) is not applicable in this case. The Ohio Supreme Court,


2
  Fisher cited the former numeration of this subpart section, which was (K)(6). The subpart in both
versions of the statute states: " ‘Unless the context clearly requires otherwise and except as otherwise
provided in the order, if an order is issued by a court pursuant to this section and the order provides for
shared parenting of a child, each parent, regardless of where the child is physically located or with
whom the child is residing at a particular point in time, as specified in the order, is the "residential
parent," the "residential parent and legal custodian," or the "custodial parent" of the child.’ "
                                                                                   -18-

in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546,

recently recognized that a shared parenting plan is not the vehicle by which a trial

court designates a residential parent or legal custodian. Id., ¶ 31, 876 N.E.2d 546.

Because the designation of the residential parent and legal custodian involves the

allocation of parental rights and responsibilities, 'R.C. 3109.04(E)(1)(a) controls when

a court modifies an order designating the residential parent and legal custodian.' Id.,

¶ 26." Surgenavic, 2009-Ohio-1028, at ¶ 9.

       {¶ 36} In both this case and Surgenavic, the original decree provided for a

shared-parenting plan, and consistent with R.C. 3109.04(L)(6), both parents were

designated as residential parent. In both cases, regardless of the terminology used,

one parent sought to modify the decree by seeking to be made the sole residential

parent. Thus, in both cases, consistent with the language in R.C. 3109.04(E)(1)(a)

and Fisher, the moving party bore the burden of proving that there was a change in

circumstances before the trial court could modify the allocation of parental rights and

responsibilities. Fisher articulated the policy and separation-of-powers reasons for

requiring this heighten scrutiny by the trial court, and this court in Surgenavic echoed

identical policy reasons:

       {¶ 37} "The requirement that a parent seeking modification of a prior decree

allocating parental rights and responsibilities show a change of circumstances is

purposeful: ‘ "The clear intent of [R.C. 3109.04(E)(1)(a) ] is to spare children from a

constant tug of war between their parents who would file a motion for change of

custody each time the parent out of custody thought he or she could provide the child
                                                                                    -19-

a ‘better’ environment. The statute is an attempt to provide some stability to the

custodial status of the children, even though the parent out of custody may be able to

prove that he or she can provide a better environment.” ’ Davis v. Flickinger (1997),

77 Ohio St.3d 415, 418, 674 N.E.2d 1159, quoting Wyss v. Wyss (1982), 3 Ohio

App.3d 412, 416, 3 OBR 479, 445 N.E.2d 1153.

       {¶ 38} "Further, '[t]he General Assembly is the policy-making body in our state

and has restricted the exercise of judicial authority with respect to modification of a

prior decree allocating parental rights and responsibilities. This legislation comports

with our rationale regarding stability in the lives of children as a desirable component

of their emotional and physical development.' In re Brayden James, 113 Ohio St.3d

420, 2007-Ohio-2335, 866 N.E.2d 467, at ¶ 28. We note that another statute that

addresses orders granting legal custody of a child sets forth the same standard for a

modification. R.C. 2151.42(B) also requires a court to find that a 'change has

occurred in the circumstances of the child or the person who was granted legal

custody' and that modification is in the best interest of the child before modifying an

order granting legal custody. See In re Brayden James at ¶ 26." Fisher, 116 Ohio

St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 34-35. See also Surgenavic, 2009-

Ohio-1028, at ¶ 14, citing Wyss.

       {¶ 39} The question remains regarding how are R.C. 3109.04(E)(2)(a) through

(d), particularly subparts (c) and (d), are read in pari materia with subpart (E)(1), and

the entire statute for that matter.
                                                                                                    -20-

        {¶ 40} The trial court recognized, as do I, that Fisher did not analyze R.C.

3109.04(E)(2)(c). However, the overarching rationale of Fisher is that because a

shared-parenting decree allocates parental rights and responsibilities to both parents,

R.C. 3109.04(E)(1)(a) mandates a showing of a change in circumstances when

contemplating a modification in that situation, just as in the situation where the

original decree that involves a visitation plan, and not a shared parenting plan, makes

the allocation to one parent. That the majority in Fisher did not discuss (E)(2)(c), and

that the dissent did not discuss how to read that section in pari materia with (E)(1)(a),

obviously has led to multiple, conflicting interpretations of that subpart within and

between the districts. However, this omission cannot be construed to mean that

despite the articulated legislative policy to protect children from parental tug-of-wars,

recognized by the Ohio Supreme Court and this district, such custody disputes would

be permitted to occur in the limited subset of decrees that originally designated both

parents as residential parent and included a shared-parenting plan.3




3
   Where the inverse to this case occurs, namely, the original decree allocated parental rights and
responsibilities to one parent and subsequently shared-parenting is sought, R.C. 3109.04(E)(1)(b)
provides: "One or both of the parents under a prior decree allocating parental rights and
responsibilities for the care of children that is not a shared parenting decree may file a motion
requesting that the prior decree be modified to give both parents shared rights and responsibilities for
the care of the children. The motion shall include both a request for modification of the prior decree
and a request for a shared parenting order that complies with division (G) of this section. Upon the
filing of the motion, if the court determines that a modification of the prior decree is authorized under
division (E)(1)(a) of this section, the court may modify the prior decree to grant a shared parenting
order, provided that the court shall not modify the prior decree to grant a shared parenting order
unless the court complies with divisions (A) and (D)(1) of this section and, in accordance with those
divisions, approves the submitted shared parenting plan and determines that shared parenting would
be in the best interest of the children." (Emphasis added.) Because this subpart expressly includes
the change-in-circumstances standard, it reinforces the contention that this statute is too cumbersome
because it includes too many circumstances in one statute, which leads to conflicting interpretations to
resolve gaps in the statutory language.
                                                                                     -21-

       {¶ 41} In Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546,

subsequent to a decree allocating parental rights and responsibilities equally and

incorporating a shared-parenting plan, both parents moved to be named sole

residential parent. The trial court terminated the shared-parenting plan, as it was in

the best interest of the child, and upon consideration of the R.C. 3109.04(F)(1)(a)

through (j) factors named Hasenjager the sole residential parent. The appellate court

affirmed, concluding first that neither R.C. 3109.04(E)(1)(a), (E)(2)(a), nor (E)(2)(c)

applied.   And while acknowledging that the trial court characterized it’s order as

terminating the shared-parenting plan, the appellate court nonetheless held that the

legislature's use of the word “term” in (E)(2)(b) allowed the trial court to modify all

provisions in a shared-parenting plan, including the allocation of parental rights and

responsibilities. Fisher at ¶ 6-9.

       {¶ 42} The certified question in Fisher framed the issue as follows: " '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)?' The answer to this

question is ‘no.' " Fisher at ¶ 1.

       {¶ 43} Fisher explained its answer, holding: "While the designation of

residential parent and legal custodian can be modified under R.C. 3109.04(E)(1)(a),

that designation cannot be modified under R.C. 3109.04(E)(2)(b), which allows only
                                                                                       -22-

for the modification of the terms of a shared-parenting plan." Fisher, 116 Ohio St.3d

53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 27.           The court then discussed the

significance of the distinction in the statute between a plan and a decree or order.

       {¶ 44} "An order or decree is used by a court to grant parental rights and

responsibilities to a parent or parents and to designate the parent or parents as

residential parent and legal custodian.

       {¶ 45} "However, a plan includes provisions relevant to the care of a child,

such as the child's living arrangements, medical care, and school placement. R.C.

3109.04(G). A plan details the implementation of the court's shared-parenting order.

For example, a shared-parenting plan must list the holidays on which each parent is

responsible for the child and include the amount a parent owes for child support.

       {¶ 46} "A plan is not used by a court to designate the residential parent or

legal custodian; that designation is made by the court in an order or decree." Fisher,

116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 29-31.

       {¶ 47} Based upon this analysis and its holding, the Supreme Court reversed

the judgment of the court of appeals because it had modified the decree designating

the residential parent using the incorrect standard, specifically the plan modification

portion of the statute, (E)(2)(b), rather than the decree modification portion of the

statute, (E)(1)(a).   Fisher further noted that the two subparts of the statute had

“significantly different standards for modifications, and as a matter of statutory

construction, to construe these two sections to apply to the same situation,
                                                                                     -23-

specifically modification of the allocation of parental rights and responsibilities, would

create inconsistency in the statute.” Id. at ¶ 32.

       {¶ 48} Turning back to the language of the statute, it bears repeating that R.C.

3109.04(E)(1)(a) provides that the trial court shall not modify a prior decree allocating

parental rights and responsibilities unless a change has occurred in the

circumstances of the child "or either of the parents subject to a shared-parenting

decree." (Emphasis added.) Id. (E)(2) then turns to the modification of shared-

parenting plans, with the preliminary caveat: "In addition to a modification authorized

under division (E)(1) of this section." (Emphasis added.) R.C. 3109.04(E)(2). It then

describes in subparts (a) and (b) the procedure to follow when the plan is modified

pursuant to motion by either/both parents or the court, which do not apply here. The

final subpart, (c), discusses termination of the plan. The penultimate issue of this

appeal is how to read (E)(2)(c) in pari materia with (E)(1)(a), without creating an

inconsistency within R.C.3109.04 as a whole.

       {¶ 49} Because a shared-parenting decree designates which parent or parents

will be the residential parent, whereas a shared-parenting plan addresses, for

example, the visitation each residential parent has, the standard for modifying the

plan is lower than that for modifying the decree. Fisher reasoned that "the factors

contained in a shared-parenting plan are not as critical to the life of a child as the

designation of the child's residential parent and legal custodian. The individual or

individuals designated the residential parent and legal custodian of a child will have

far greater influence over the child's life than decisions as to which school the child
                                                                                        -24-

will attend or the physical location of the child during holidays. Further, factors such

as the physical location of a child during a particular weekend or holiday or provisions

of a child's medical care are more likely to require change over time than the status

of the child's residential parent and legal custodian." Fisher, 116 Ohio St.3d 53,

2007-Ohio-5589, 876 N.E.2d 546, at ¶ 36.

       {¶ 50} The trial court here echoed these concerns:

       {¶ 51} "[T]ermination of a shared-parenting decree necessarily entails that

there is going to be a change in the residential parent of the child. Therefore, since

that designation is being modified, it is only logical to apply the same standard that

R.C. 3109.04(E)(1)(a) mandates.          In addition, termination of shared-parenting

decrees altogether is harsher than modifications to a shared-parenting plan. Thus, it

is also logical to apply a stricter burden of proof for terminations, such as R.C.

3109.04(E)(1)(a) does with first finding a change in circumstance."

       {¶ 52} I agree with the rationale of the majority in Fisher and the trial court to

require inclusion of the change-in-circumstance standard when determining whether

or not to terminate a shared-parenting decree and plan. It is logical to not require a

showing of a change in circumstances when modifying the shared-parenting plan.

But given the significance of who is designated the residential parent, and the further

significance of avoiding a constant back and forth over whether a parent or both

parents will be the residential parent, it is logical and statutorily consistent to require a

showing of a change in circumstances pursuant to R.C. 3109.04(E)(1)(a) before the

trial court determines that it is in the best interest of the child to terminate the shared
                                                                                   -25-

parenting plan pursuant to (E)(2)(c). In other words, termination of the plan pursuant

to (E)(2)(c) presupposes that a change of circumstances has been found by the trial

court.

         {¶ 53} This is also consistent when considering (E)(2)(d), which provides that

in the event the shared-parenting plan is terminated, modification of the decree is

made as if no prior determination has been made. This is to reconcile the situation

where both parents are the residential parent with the presumption in (E)(1)(a) that

when applying the modification standards, "the court shall retain the residential

parent designated by the prior decree or the prior shared parenting decree."

Because Fisher held that in a shared-parenting decree, both parents are deemed to

be the residential parent, (E)(2)(d) puts both parents on equal footing out of

necessity; there isn't a sole residential parent to measure the (E)(1)(a) presumption

against when considering the best interest of the child(ren). Thus, (E)(2)(d) directs

that the best-interests consideration be made by applying the factors contained in

R.C. 3109.04(F) within the context of (A), (B), and (C), discussed above, which

delineate the procedures for designating the residential parent.

         {¶ 54} As noted above, the cumbersome nature of the language in R.C.

3109.04 is readily apparent, given the varying interpretations between and within

appellate districts.   Further, this is apparent from a close reading of the cases

discussed by the majority, giving them less persuasive value regardless of how they

resolve the applicability of (E)(1)(a). For example, I agree with the majority that we

can find guidance on this issue from Posey or Sims. While Posey extensively quotes
                                                                                     -26-

Fisher and holds that where the designation of the residential parent is being

modified, a change of circumstance must be shown and then noted that the trial court

failed to make that determination, it still affirmed the trial court's modification of the

residential-parent designation, Posey, 2011-Ohio-1165, at ¶12. And Sims notes only

that the magistrate in that case relied on Fisher, but then misstates the holding.

Sims, 2008-Ohio-6442, at ¶ 5.

       {¶ 55} But Beismann, Rogers, and Poshe likewise lack persuasive value

because those cases also misstate the holding in Fisher (“a mere change in the

designation of the residential parent and legal custodian did not constitute a

termination of the shared parenting plan, but rather only a modification of the plan.”)

Beismann, 2008-Ohio-984, at ¶ 10, Rogers, 2008-Ohio-1790, at ¶10, and Poshe,

2011-Ohio-1165, at ¶ 18. Fisher held that the designation of the residential parent

was made in a decree not a plan, thus the designation can only by modified in the

decree via (E)(1)(a), it cannot be a term of a plan and cannot be modified in the plan

via (E)(2)(b). Fisher at ¶ 29, 31. Moreover, the Supreme Court did not characterize

modification as a “mere” change; it held that the designation of the residential parent

was "critical to the life of a child" because that person "will have far greater influence

over the child's life." Id. at ¶ 36. Finally, Clyburn did not reach the merits of the

issue; it dismissed the appeal based upon a lack of jurisdiction because the trial

court's entry was void for vagueness, Clyburn, 2010-Ohio-4508, at ¶ 10-13, fn.1:

       {¶ 56} "We recognize of course that terminating a shared parenting plan is a

very different proposition than terminating a shared parenting decree. See Fisher v.
                                                                                    -27-

Hasenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007-Ohio-5589, at ¶ 29 (Within the

custody statute, a “plan” is statutorily different from a “decree” or an “order.” ' ").

However, we are uncertain that the trial court intended to vacate the plan but sua

sponte modify the decree. The companionship schedule attached to the findings of

fact and conclusions of law does not appear to satisfy the requirements of a shared

parenting plan. See R.C. 3109.04(G) (‘A plan for shared parenting shall include

provisions covering all factors that are relevant to the care of the children, including,

but not limited to, provisions covering factors such as physical living arrangements,

child support obligations, provision for the children's medical and dental care, school

placement, and the parent with which the children will be physically located during

legal holidays, school holidays, and other days of special importance.’) Supposing

that a trial court may sua sponte modify a shared parenting decree under R.C.

3109.04, we are uncertain that this is what the trial court intended. No Ohio court we

are aware of has considered this issue, but R.C. 3109.04 does not expressly give the

trial court the authority to sua sponte modify the decree." Id. at ¶ 10.

       {¶ 57} Conversely, Surgenavic, 2009-Ohio-1028, as discussed above, and In

re Illig, 2009-Ohio-916, are persuasive, as they both succinctly and correctly cite

Fisher: "[W]hen a court is seeking to modify the designation of a residential parent, it

must apply R.C. 3109.04(E)(1)(a) and find a change in circumstances prior to

modifying the shared parenting plan. However, if the court is only seeking to change

the method of implementation of a shared parenting plan, by changing its terms, it

may apply R.C. 3109.04(E)(2)(b) and look only to what is in the best interest of the
                                                                                         -28-

child. Fisher, supra." Illig at ¶15. Both cases involve the same circumstance as this

case; regardless of the terms used by the parties, the original decree designated

both parents as residential parent, and a subsequent modification designated only

one parent as residential parent, terminated the shared-parenting plan, and adopted

a visitation plan.

       {¶ 58} In conclusion, when an original decree designates that either one

parent is a residential parent or both parents are a residential parent, in either

circumstance, R.C. 3109.04(E)(1)(a) requires that the trial court first find that a

change in circumstances has occurred. In the circumstance where the residential

parent is designated in a prior decree that is not a shared-parenting decree, the trial

court must secondly find that the change is in the best interest of the child(ren) and

(E)(1)(a)(i),(ii) or (iii) applies, ending the trial court's analysis. But in the circumstance

where the residential parent is designated in a prior shared-parenting decree, the trial

court must secondly determine whether terminating the shared-parenting plan is in

the best interest of the child pursuant to (E)(2)(c), and then thirdly, pursuant to

(E)(2)(d), issue a modified decree allocating parental rights and responsibilities

pursuant to the best interest of the child(ren). This conclusion is consistent with the

statutory language and purpose of R.C. 3109.04 as a whole, as well as the Supreme

Court's decision in Fisher and our decision in Surgenavic. For these reasons, I would

affirm the decision of the trial court, and certify a conflict to the Supreme Court.
