[Cite as In re A.Z., 2020-Ohio-2941.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


IN RE A.Z.                                    :
                                              :            No. 108627
A Minor Child                                 :
                                              :
[Appeal by T.Z., Father]                      :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
                 RELEASED AND JOURNALIZED: May 14, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Juvenile Division
                                 Case No. CU13112412


                                        Appearances:

                 David S. Bartos, for appellant.

                 Polito, Rodstrom, Burke, L.L.P., and Michael G. Polito,
                 and Michael B. Granito, for appellee.


ANITA LASTER MAYS, P.J.:

                   Appellant, the acknowledged registered father of A.Z. (“Father”),

appeals the juvenile court’s judgment on multiple motions filed by Father relating

to the allocation of parental rights and responsibilities between Father and the
mother of A.Z. (“Mother”).1 The motions include multiple contempt motions for

missed visitation and modification of child support. A.Z. was born in 2003, and will

be 18 years of age in 2021.

              We affirm the trial court’s judgment in part and reverse in part. We

reverse the trial court’s denial of the child support modification motion and remand

it for a hearing. We affirm the remainder of the judgment.

I.   Assignments of Error

              Father assigns the following errors:

      I.      The court committed prejudicial error by adjudicating the
      motions to modify the shared parenting plan, and motions to show
      cause/contempt by determining erroneous facts in ruling that neither
      party filed a shared parenting plan in support of their motions and that
      the parties had an agreement to have 14 days of make-up visitation to
      dismiss said pending motions thus depriving the appellant of his right
      to a trial and due process on the pending motions.

      II.    The trial court’s sua sponte dismissal of the appellant’s [sic]
      effectively dismissed the appellant’s motion to modify child support
      with prejudice without notice or opportunity to be heard, thus violating
      appellant’s right to due process under Article I, Section 16 of the Ohio
      Constitution.

      III. The trial court’s sua sponte dismissal of the appellant’s motions
      without notice violated the appellant’s right under Article I, Section 16
      of the Ohio Constitution.

      IV. The trial court violated appellant’s right to due process and
      committed reversible and prejudicial error by denying the appellant’s
      motions to vacate the protective order, the order granting the motion
      to quash the subpoena to [the child’s counselor] and order granting the
      motion in limine to exclude the testimony of [the counselor].


      1  The existence of the parent-child relationship was established by virtue of
Father’s acknowledgment of paternity filed with the Ohio Central Paternity Registry
pursuant to R.C. Chapter 3111.
II. Discussion

               We combine the errors for ease of analysis.

       A. Standard of Review

               The discretion of a trial court is broad in custody proceedings. In re

S.R.L., 8th Dist. Cuyahoga No. 98754, 2013-Ohio-3236, ¶ 17, citing Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.

       A trial court will be found to have abused its discretion when its
       decision is contrary to law, unreasonable, not supported by the
       evidence, or grossly unsound. See State v. Boles, 187 Ohio App.3d 345,
       2010-Ohio-278, 932 N.E.2d 345, ¶ 17-18 (2d Dist.), citing Black’s Law
       Dictionary 11 (8 Ed.Rev.2004). When applying the abuse-of-discretion
       standard, a reviewing court may not simply substitute its judgment for
       that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
       450 N.E.2d 1140 (1983).

Id. at ¶ 17.

               “In conducting our review, we must make every reasonable

presumption in favor of the trial court’s findings of fact.” Id. at ¶ 18, citing Myers v.

Garson, 66 Ohio St.3d 610, 614, 614 N.E.2d 742 (1993). “We give deference to the

trial court as the trier of fact because it is ‘best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’” Id., quoting Seasons Coal

Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       B. Relevant History

               This case was initiated in 2013 by Father’s application to determine

custody and visitation pursuant to R.C. 2151.23(A)(2) and has been contentious

from inception. A guardian ad litem (“GAL”) was appointed for A.Z. In 2014, each
party filed a motion to show cause that alleged the other party violated a court order

that prohibited discussing the custody proceedings with A.Z. and making frivolous

abduction allegations.

               In March 2015, the parties finally agreed on a shared parenting plan

(“SPP”) that was adopted by the trial court. On March 25, 2016, Father filed motions

for contempt and to modify the SPP (“2016 Motions”). Father alleged that Mother

failed to: (1) comply with the visitation schedule for four midweek and four weekend

missed visits, (2) facilitate visits when the child was allegedly ill, and (3) terminate

the services of counselor Griswold purportedly due to Griswold’s refusal to provide

Father with access to A.Z.’s records.

               The modification motion requests designation of Father as custodial

and residential parent under R.C. 2151.23(F)(1) and 3109.04(F)(1)(f) based on

changed circumstances. Father cites the same grounds set forth in the contempt

motion but adds that “once [Father] received copies of the counseling records”

referenced in the contempt motion, he learned that the child was sometimes

sleeping with Mother, an issue Father raised in November 2013 that was allegedly

resolved.

               The July 2016 court custody diagnostic clinic report opined that the

missed visits were merely “reflective of dysfunctional family communication” and

that “[a]ll parties seemed to play a role.” Diagnostic Report, p. 7. The clinician was

not concerned that A.Z. sometimes slept with Mother. The sleeping arrangement

existed when all parties resided together and did not constitute a changed
circumstance. The clinician did not support modification of the SPP because there

had been no change of circumstances or best interest concerns to support

modification.

                A.Z. was interviewed in camera and at the July 28, 2016 pretrial; the

trial court continued the 2016 Motions hearing pending referral to family counseling

and delayed a ruling on Father’s motion for an independent custody evaluation. On

June 13, 2017, Father moved to reduce his child support obligation due to changes

in the parties’ incomes.

                On July 24, 2017, Mother requested an in camera interview with A.Z.

motivated by Father’s refusal to agree to the summer parenting time schedule

proposed by then 14-year-old A.Z. and the GAL. Mother also moved to modify the

SPP at A.Z.’s request to allow him to reside with Mother during the summer to

remain involved with sports and friends.

                Mother also requested that the parties communicate through the

county’s electronic parental communications system due to Father’s refusal to

communicate directly. At the July 27, 2017 hearing, the trial court approved the

communications request, noted that the parties were working on an agreed entry to

modify visitation, and continued the hearing pending the in camera interview.

                Several filings and continuances later, at a March 19, 2018 hearing,

the parties discussed visitation, psychiatric evaluation, child support, and the GAL’s

recommendations. On March 21, 2018, the trial court issued a temporary interim

visitation order noting “the parties * * * seem unable to agree on the question of
what visitation they agreed upon in a previous entry.”                Journal entry

No. 0911033022 (Mar. 21, 2018).

              On April 16, 2018, Mother moved to modify the SPP to adopt the

county’s standard parenting time schedule on the grounds that the child was

approaching 15 years of age and the parents resided more than 45 miles but less than

200 miles apart.2 The parties also engaged in various discovery disputes as the trial

date approached.

              Father supplemented the 2016 contempt motion in May 2018

claiming several missed hours of visitation. On August 7, 2018, Father filed a second

supplement asserting Mother began exchanging A.Z. at 8:00 a.m. on Monday

instead of 8:30 p.m. on Sunday evening in July 2018.

               On September 4, 2018, the trial court allowed Father’s counsel to

withdraw due to a lack of client cooperation and irreconcilable differences. On

January 11, 2019, a pretrial was conducted on the pending contempt and

modification motions. The matter was set for a March 6, 2019 trial.

              On February 11, 2019, Father filed an additional motion to show cause

for violation of the SPP. This motion reiterated the claim that Father did not consent

to counseling by Griswold and that he was denied access to the counseling records

in contravention of the SPP by Griswold and the social worker. Father also advised

that he filed complaints against the social worker and counselor with the state board



      2  The distance does not appear to be a change in circumstance from the time of
the SPP. The record does not reflect a change of address by either party.
who instructed the counselor and social worker to conclude their involvement.3

Father charged that Mother and her counsel should be held responsible for the

actions of the counselor and social worker.

               The trial, captioned an “evidentiary hearing” by the trial court, began

on March 6, 2019. (Tr. 13.) After a discussion of the pending issues, the trial court

recited the list of pending motions deemed to be denied and advised the parties to

work things out.

               The next morning, counsel for Father informed the trial court that the

parties “thought they had an agreement” but “comments began to fly back and forth

into this morning that we no longer have an agreement, and this is very typical in

this case.” (Tr. 20.) “There was a compromise.” (Tr. 21.) “The GAL was [present]

through the majority of it.” Id. Father’s counsel agreed with the trial court’s

suggestion that testimony from the GAL would be helpful. “[W]e can hear what

he * * * believes happened yesterday or what he believes is in the best interest of the

child.” (Tr. 22.) The GAL confirmed the parties’ agreement to the 14-day make-up

period but stated the parties could not agree on the schedule.

               The GAL testified that he was assigned to A.Z. in 2013 and there have

been ongoing issues between the parents. In response to Father’s 2016 Motions, the

GAL met with the parties and with counselors. He advised that the child was fond




      3    The Board responded that it did not support formal discipline. Father withdrew
his trial subpoena for the board members the morning of the hearing. The trial court also
granted Mother’s motion to quash counselor Griswold’s subpoena.
of both parents but there were times when Father arrived to pick up A.Z. for a visit,

A.Z. would enter the vehicle, then refuse to leave and re-enter Mother’s home.

               The GAL advised against awarding custody to Father due to the need

to maintain continuity and that A.Z. was approaching his sixteenth birthday, nor did

the GAL embrace reducing Father’s visitation time at the risk of interfering with the

child’s bond with Father. The GAL recommended that the SPP remain as is and that

Father receive visitation compensation time of 14 days. The GAL also reported that

A.Z.’s psychologist was pleased with the progress of the parties and A.Z.’s

relationship with both parents.

               At the conclusion of the GAL’s testimony, the trial court stated that

the parties could propose a schedule or the trial court would do it:

      I’ll do it. I mean, I do it all the time. It’s not like a big deal, but you
      should work this out. If you can’t do it, I’ll do it. And I won’t do it
      maliciously.

      I have nothing against you, dad, and nothing against you, mom. I try
      to do the best I can so that you get the make-up time which I believe
      you’re entitled to without going into a lot of details, and everybody go
      on and keep building your relationships with the youngster. I mean,
      you’re adults. Whatever you do is your business. You don’t have to like
      one another, I don’t care. But I do care about the boy, and I try to take
      care of all the kids as best I can, and I know what it’s like.

(Tr. 58-59.)

               Counsel for Father responded:

      You know, your Honor, I think it would make sense for us to, since the
      only issue to be determined by the Court is how the 14 days are going
      to be given to father, if we could each give you a schedule for the
      summer for the last day.

(Tr. 59.) The trial court replied, “[l]et dad tell me what he wants.” Id.
                Father’s counsel then announced that Father wanted to proceed with

trial and take the stand. The trial court replied, “[h]e wants to take testimony. It’s

your case.”      (Tr. 60.)    After Father was sworn in, counsel advised that

“Father had a number of witnesses.”4

                Father testified that he did not “necessarily” want the trial court to

hold mother in contempt.

      Counsel:      Let’s start with, what is it that you want to clarify?

      Father:       What I wanted to clarify was that the GAL didn’t know
                    exactly when I filed the motion to change custody, there
                    was a period over six months where [A.Z.] was being called
                    in sick to school on days that he was to be with me, and
                    that’s in my motion for custody that was filed.

                    And I had also found out about the sleeping issues that
                    were continuing. I wanted all that to stop.

                    And there was also one other issue was that — and I can’t
                    remember now because I don’t have my notes, but that the
                    mother’s — I’m sorry. I lost my train of thought.

                    There was also something I wanted to say about the make-
                    up time. * * *

      Counsel:      Is it your position that you have approximately 15 days of
                    make-up time? That would include —

      Father:       Yes.




      4  The trial court previously granted certain witness protective orders and motions
to quash subpoenas in the case. Notwithstanding that fact, new counsel for Father filed
subpoenas in case the trial court decided to vacate its prior rulings.
      Counsel:       Would you be okay with two additional weeks during the
                     summer as make-up time?

      Father:        If that’s what is ordered, yes, I would be.

(Tr. 62-63.)

                Father added, “I want [A.Z.] to have a loving relationship with mom,

but I want him to have a loving relationship with dad also.” (Tr. 63-64.) The court

recessed at counsel’s request to confer with Father.

                After recess the trial court stated:

      Three matters were before the Court. Both Mother and Father had filed
      a motion to modify the shared parenting plan. There was a show cause
      motion which concerned make-up visitation. That was to argue the
      matter of make-up visitation.

      Either the Court or the Guardian or anybody would determine that 14
      days was to be made up and that Father was to have an additional 14
      days.

      Neither party filed a new shared parenting plan, but they wish to
      proceed and have a modified shared parenting plan.

      The Court suggested that the parties submit what they wanted in the
      way of a 14-day structure for dad’s make-up.

      Counsel for mother has submitted one and the Court will give counsel
      for father until Friday of next week to submit, if they wish to. If they
      don’t the Court may use the one or the other or neither.

(Tr. 64-65.)

                Father’s counsel stated an objection for the record.

      Counsel:       [M]y client does not consent to not proceeding with trial.
                     I understand the Court’s order is what the Court order is;
                     however, my client does not consent to that and wishes to
                     have a full hearing.
                    I understand that the Court is going to make this order and
                    my client would like to have this hearing, and therefore,
                    we would object. * * *

      Counsel:      Your Honor, in addition to the child support hearing, my
                    client has a number of motions pending, including the
                    show cause, including motion to modify, and therefore we
                    would object.

      Court:        The show cause, all of the show cause motions concerned
                    visitation problems which [Father] agreed to accept 14
                    days to settle it.

      Counsel:      Your Honor, that is not accurate.

      Court:        Well, that’s what he said in here.

      Counsel:      As a part of the resolution that was agreed upon that fell
                    apart, there is no resolution and, therefore, my client
                    objects. Thank you.

      Court:        Thank you. You’re welcome. Goodbye.

(Tr. 65-67.)

               The trial court’s April 26, 2019 journal entry reiterated the trial

court’s determination that the purpose of the hearing was to entertain the parents’

motions to modify the SPP and schedule the agreed 14-day make-up period with

Father. All other orders were denied.

      C. Analysis

               R.C. 3109.04 is entitled “[a]llocation of parental rights and

responsibilities for care of children; shared parenting.” Id. “As R.C. 3109.04 makes

clear, the guiding principle in a custody matter is the best interest of the child.” In

re M.S., 8th Dist. Cuyahoga No. 99563, 2013-Ohio-4043, ¶ 21. “Before allocating

parental rights and responsibilities, the trial court is required to determine whether
a parenting plan is in the best interest of the child.” Id. “The ultimate goal of

R.C. 3109.04 is to arrive at a decision that is in the best interests of the child.” Id. at

¶ 25.

                R.C. 3109.04 also governs the modification of shared parenting plans.

A party must demonstrate the existence of changed circumstances; that

modification is in the child’s best interest; and that the advantages of granting the

modification outweigh any harm likely to be caused by the change. In re S.R.L., 8th

Dist. Cuyahoga No. 98754, 2013-Ohio-3236, at ¶ 19, citing R.C. 3109.04(E)(1)(a).

                R.C. 3109.04(E)(1)(a) provides:

        (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.

Id.
                R.C. 3109.04 “‘creates a strong presumption in favor of retaining the

residential parent.’” Sites v. Sites, 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748,

¶ 17, quoting Alessio v. Alessio, 10th Dist. Franklin No. 05AP-988, 2006-Ohio-2447,

¶ 11. “The statute prohibits a trial court from modifying a prior allocation of parental

rights and responsibilities unless the court makes a threshold finding that a change

in circumstances has occurred.” Id., citing In re Brayden James, 113 Ohio St.3d

420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 15; Davis, 77 Ohio St.3d at 417, 674 N.E.2d

1159 (1997). “Without this threshold change in circumstances finding, a court need

not proceed with an analysis of the child’s best interests under R.C. 3109.04(E)(1)

or with any of the factors outlined in R.C. 3109.04(E)(1)(a).” Id., citing Cowan v.

Cowan, 4th Dist. Washington No. 04CA5, 2004-Ohio-6119, ¶ 16.

               In addition,

      A change in circumstances generally means that an event, occurrence,
      or situation has arisen since the prior decree that has materially and
      adversely affected the child. However, this change in circumstances
      cannot be slight or inconsequential. Rather, it must be substantive and
      significant. The requirement for finding a substantive and significant
      change in circumstances 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 children a “better” environment. [R.C. 3109.04(E)] 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, 77 Ohio St.3d at 418,
      quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (1982).

(Citations omitted.) Id. at ¶ 18.

               We note that the trial court did not conduct a detailed analysis of the

rationale underlying its decision and Father did not move for same under Civ.R. 52.
      The Ohio Supreme Court has held that “Civ.R. 52, requiring separate
      findings of fact and conclusions of law upon timely request, applies to
      change of custody proceedings[.]” Werden [v. Crawford], 70 Ohio
      St.2d 122,] at 124 [435 N.E.2d 424 (1982)]. The Supreme Court has
      further held that “[t]he Rules of Civil Procedure apply to custody
      proceedings in juvenile court except when they are clearly
      inapplicable.” In re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, ¶ 11,
      868 N.E.2d 261, citing Civ.R. 1(C)(7) and State ex rel. Fowler v. Smith,
      68 Ohio St.3d 357, 1994-Ohio-302, 626 N.E.2d 950 (1994). * * * We
      find that the Civil Rules are not “clearly inapplicable” here, especially
      in light of Juv.R. 45 which provides, “If no procedure is specifically
      prescribed by these rules or local rule, the court shall proceed in any
      lawful manner not inconsistent with these rules or local rule.” In re
      H.W. at ¶ 11. While Juv.R. 40(D)(3)(a)(ii) allows a party to request
      findings of fact and conclusions of law after a juvenile court magistrate
      issues a decision, the Rules of Juvenile Procedure do not provide
      parties with a similar avenue once a juvenile court enters its judgment.
      We further note that App.R. 4(B)(2)(d) tolls the time for filing a notice
      of appeal in “a juvenile proceeding if a party files a timely motion for
      * * * findings of fact and conclusions of law under Civ.R. 52” until the
      court “enters an order resolving” the request. See In re A.J.B., 2d Dist.
      Miami No. 11CA006, 2011-Ohio-6176.

In re Z.N.T., 12th Dist. Clermont No. CA2018-05-035, 2019-Ohio-915, ¶ 19.

               “However, in the absence of a proper Civ.R. 52 request for findings

of fact and conclusions of law, [the court] had no independent duty to do so.” Sites,

4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, at ¶ 19.

      “When questions of fact are tried by a court without a jury, judgment
      may be general for the prevailing party unless one of the parties in
      writing requests otherwise * * * in which case, the court shall state in
      writing the conclusions of fact found separately from the conclusions
      of law.” [Civ.R. 52]. The failure to request findings of fact and
      conclusions of law ordinarily results in a waiver of the right to challenge
      the trial court’s lack of an explicit finding concerning an issue. When a
      party fails to request findings of fact and conclusions of law, we
      ordinarily presume the regularity of the trial court proceedings. This
      means that we generally must presume that the trial court applied the
      law correctly and must affirm if some evidence in the record supports
      its judgment. See, e.g., Bugg v. Fancher, Highland App. No. 06CA12,
      2007-Ohio-2019, at ¶ 10, citing Allstate Financial Corp. v. Westfield
      Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (1989); see also
      Yocum v. Means, Darke App. No. 1576, 2002-Ohio-3803, at ¶ 7. (“The
      lack of findings obviously circumscribes our review.”).

(Citations omitted.) Id.

               In the April 2019 final entry, the trial court identified the matters

before the court: the parties’ motions to modify the SPP and scheduling the 14-day

visitation make-up time for Father. The entry also states that neither party filed a

new SPP so the court could not choose one plan over the other. The trial court also

stated at the hearing that “[n]either party filed a new shared parenting plan, but they

wish to proceed and have a modified parenting plan.” (Tr. 65.) Neither party

disputed the trial court’s statement at that time. Father cannot raise for the first time

on appeal arguments he failed to raise in the trial court below. Kleinfeld v.

Huntington Natl. Bank, 8th Dist. Cuyahoga No. 90916, 2008-Ohio-6486, ¶ 37.

               Father counters that he filed proposed plans on September 13, 2016,

and April 16, 2018. Mother denies that Father filed any plans and states that the

proposed plan that she filed prior to the hearing was rejected.

               Father urges that even without a proposed plan, the trial court has the

discretion to modify a shared parenting plan if it is in the child’s best interest

pursuant to R.C. 3109.04(E)(2)(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.

               Father is correct that “R.C. 3109.04(E)(2)(b) authorizes a trial court

to make its own modifications to the terms of an existing shared-parenting plan at

any time.” Palichat v. Palichat, 2019-Ohio-1379, 135 N.E.3d 389, ¶ 9 (2d Dist.). “It

may do so on its own motion or at the request of either party as long as the

modifications are in the best interest of the children.” Id., citing Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 11 (recognizing

that “[o]nce a shared-parenting decree has issued, R.C. 3109.04(E) governs

modification of the decree”).

                The Ohio Supreme Court distinguished between shared parenting

decrees,   parenting    plans    and    the    applicable    modification    statutes,

R.C. 3109.04(E)(1)(a) and (E)(2)(b), in Fisher at ¶ 29-31.

       Within the custody statute, a “plan” is statutorily different from a
      “decree” or an “order.” A shared-parenting order is issued by a court
      when it allocates the parental rights and responsibilities for a child.
      R.C. 3109.04(A)(2). Similarly, a shared-parenting decree grants the
      parents shared parenting of a child. R.C. 3109.04(D)(1)(d). 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.

      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.

      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.
      Therefore, the designation of residential parent or legal custodian
      cannot be a term of shared-parenting plan, and thus cannot be
      modified pursuant to R.C. 3109.04(E)(2)(b).

Id. at ¶ 29-31.

                  “R.C. 3109.04(E)(1)(a) applies when a trial court modifies a prior

decree allocating parental rights and responsibilities and designating a residential

parent and legal custodian.” Palichat at ¶ 14, citing Fisher. “R.C. 3109.04(E)(2)(b)

applies when a trial court modifies the terms of a prior shared-parenting plan that

has been incorporated into a prior decree.” Id. at id.

                  The applicable analyses also differ. “The initial [best interest]

determination [under R.C. 3109.04] requires a careful analysis of numerous factors

set forth in the statute.” In re A.G., 2018-Ohio-289, 104 N.E.3d 258, ¶ 8 (8th Dist.).

                  “To limit relitigation of the” initial R.C. 3109.04 factors, custody

modification of parenting decrees “under R.C. 3109.04(E)(1)” is based on whether

there has been a “change in circumstance that arose after the issuance of the decree

in effect at the time, or newly discovered information.” Id. at ¶ 8, citing Wyss v.

Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982).

                  Conversely, R.C. 3109.04(E)(2) for modification of shared parenting

plans does not require a change of circumstances. Thus, “modifying which person

is the residential or custodial parent cannot be accomplished through

R.C. 3109.04(E)(2).” Id. at ¶ 10, citing Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589,

876 N.E.2d 546, at ¶ 26. “[T]o warrant a change of custody * * * the change must
be a change of substance, not a slight or inconsequential change.” Davis, 77 Ohio

St.3d at 418, 674 N.E.2d 1159.

              “[P]arenting time” and “child support” “have all been held to be terms

of a shared parenting plan that require only a ‘best interest’ evaluation for

modification.” Palichat, 2019-Ohio-1379, 135 N.E.3d 389, ¶ 14 (2d Dist.), quoting

Gessner v. Gessner, 2d Dist. Miami No. 2017-CA-6, 2017-Ohio-7514, ¶ 35.

              We    also   observe   that   the   SPP   was    issued   pursuant   to

R.C. 3109.051(D) that, like the R.C. 3109.04(E)(2), requires only a best interest

analysis.

      R.C. 3109.051 governs the modification of parenting time or visitation
      rights. Braatz v. Braatz, 85 Ohio St.3d 40, 44-45, 706 N.E.2d 1218
      (1999). It requires that court orders that address visitation be “just and
      reasonable.” In re Bailey, 1st Dist. Hamilton Nos. C-040014 and C-
      040479, 2005-Ohio-3039, ¶ 25. “The party requesting a change in
      visitation rights need make no showing that there has been a change in
      circumstances in order for the court to modify those rights.” Id.
      “Under R.C. 3109.051, a trial court is permitted to modify visitation
      rights if it determines that the modification is in the child’s best
      interest.” Lisboa v. Lisboa, 8th Dist. Cuyahoga No. 92321, 2009-Ohio-
      5228, ¶ 11; see also In re A.J., 8th Dist. Cuyahoga No. 99881, 2013-
      Ohio-5737, ¶ 10. In determining whether a modification is in the child’s
      best interest, the court is guided by the factors set forth in
      R.C. 3109.051(D).

In re I.A.G., 8th Dist. Cuyahoga No. 103656, 2016-Ohio-3326, ¶ 15.

              Thus, the legislature has empowered the trial court to broadly wield

its statutory authority to protect the best interests of the child. The GAL, who has

served as a GAL since 1984, has been with A.Z. since 2013. The GAL testified that

he was familiar with the “numerous motions on the table including two motions for
change of custody and other motions” filed in the case. (Tr. 15.) He investigated the

cited concerns and concluded they were primarily unfounded.

               The GAL has also been actively involved with the parties and

counselors and said that he “worries that any change” to the visitation schedule

would “be detrimental and anti-productive” “given the progress of the father-son

relationship.” (Tr. 27.) The court diagnostic clinic, counselors, and psychologist

recommended against modification of the SPP.

               The GAL also cited the fact that A.Z. was 15 years old at the time of

the hearing.

      And you’ve gotta understand, your Honor, we’re not talking about a 3-
      year-old or a 5-year-old or an 8-year-old. When this case came in here
      he was 13. Now he’s 15 years old, so he’s getting older, and unless you
      can show that the party that the child’s living with is on drugs or a
      sexual predator or whatever, there’s no reason to change custody when
      you get that age.

(Tr. 26.)

               Father stated on the record that he was fine with the 14-day make-up

period and that, if A.Z. wanted to return to Mother’s home if the make-up period

involved more than the customary number of consecutive weeks, he would oblige.

All parties agreed the 14-day make-up period was acceptable and the remaining

issue was simply scheduling the time.

               The trial court has been involved with the case and parties for

approximately six years. Multiple motions and affidavits have been filed, some

containing redundant information, in camera interviews of A.Z. have been
conducted, and psychological and counseling services have been rendered

throughout the years.

                The trial court conducted a two-day evidentiary hearing on the

pending matters.      Ultimately, the trial court rejected all motions except to

implement the 14-day make-up period as delineated in the journal entry.

                Not only does the record support that maintaining the current SPP is

in the best interest of the child, the record also demonstrates that there has been no

change of circumstance that warrants a change of custody. The trial court is vested

with the authority to make the decision. We also note that within the next year to

18 months, A.Z. will reach his 18th birthday.

                We are also “mindful of the ‘elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him.’” (Citations

omitted.) Toth v. Toth, 5th Dist. Guernsey No. 2012-CA-21, 2013-Ohio-845, ¶ 58,

quoting Smith v. Flesher, 12 Ohio St.2d 107, 110, 233 N.E.2d 137 (1967);

App.R. 12(D).

                It is axiomatic that a trial court has inherent authority to manage its

docket and the progress of the proceedings before it. Cromartie v. Goolsby, 8th

Dist. Cuyahoga No. 93438, 2010-Ohio-2604, ¶ 18. The case has been pending since

2013. A.Z. will be 17 years old in a few months.

                Also, “‘the trial judge is in the best position to view the witnesses and

observe the demeanor, gestures and voice inflections so as to weigh the credibility
of the presented testimony.’” In re J.T.S., 12th Dist. Preble No. CA2014-09-009,

2015-Ohio-364, ¶ 21, quoting In re Guardianship of Smith, 12th Dist. Preble

No. CA2002-12-012, 2003-Ohio-4247, ¶ 11. “This is because ‘[t]he knowledge a trial

court gains through observing the witnesses and the parties in a custody proceeding

cannot be conveyed to a reviewing court by a printed record.’” Id., quoting Miller v.

Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).

               Where, as here, the record contains competent credible evidence that

supports the trial court’s judgment and, in the absence of findings of facts and

conclusions of law pursuant to Civ.R. 52, we presume regularity and that the trial

court properly applied the law to the facts. Sites, 4th Dist. Lawrence No. 09CA19,

2010-Ohio-2748, at ¶ 19.

                The trial court acknowledged on the record that Father is entitled to

a hearing on the motion to modify child support, but denied all remaining motions

in its final entry. Therefore, this court reverses the denial of the motion and remands

the issue to the trial court for a hearing.

III. Conclusion

                The trial court’s judgment is affirmed in part and reversed in part.

The case is remanded for a hearing on Father’s motion to modify child support.

      It is ordered that each party equally bear the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




ANITA LASTER MAYS, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY
