[Cite as Dappert v. Dappert, 2017-Ohio-2704.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




BOBBIE DAPPERT,

        PLAINTIFF-APPELLEE,                              CASE NO. 8-16-14

        v.

ASHLEY DAPPERT,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Domestic Relations Division
                           Trial Court No. DR14-04-0083

                                     Judgment Affirmed

                              Date of Decision: May 8, 2017



APPEARANCES:

        Miranda A. Warren for Appellant

        Laura Helmbrecht for Appellee
Case No. 8-16-14


ZIMMERMAN, J.

      {¶1} Defendant-appellant, Ashley Dappert (“Ashley”) appeals the January

27, 2016 Magistrate’s Decision and the September 27, 2016 Entry of the Logan

County Common Pleas Court naming plaintiff-appellee, Bobbie Dappert

(“Bobbie”), the residential parent and legal custodian of Ashley and Bobbie’s two

minor children. For the reasons that follow, we affirm.

      {¶2} Bobbie and Ashley were married on July 23, 2005. (Doc. 1). They

have two children together, Z.D., who was born before their marriage, and M.D.,

who was born during the marriage. Id. The parties separated in early April, 2014.

      {¶3} Bobbie and Ashley lived together with their children until Ashley left

the marital residence and moved in with her boyfriend, Arl Creaman (“Arl”) in

April, 2014. When Ashley moved in with Arl, the children remained in the marital

home with Bobbie. Ashley lived with Arl for approximately five months until she

broke up with him and moved in with James Ritzma (“James”), her new boyfriend.

      {¶4} Bobbie filed a complaint for divorce on April 17, 2014 in the Logan

County Common Pleas Court. Id. With his divorce complaint, Bobbie requested a

temporary restraining order against Ashley (Doc. 8); an order granting him

temporary custody of the minor children (Doc. 9); and an order requesting

temporary child support for the minor children. Id. The trial court granted Bobbie’s




                                        -2-
Case No. 8-16-14


request for temporary custody on April 22, 2014 naming him the temporary

residential parent and legal custodian of the children. (Doc. 16.).

       {¶5} Ashley filed her answer to Bobbie’s divorce complaint on May 9,

2014 and requested a hearing on the temporary custody order. (Doc. 19).

       {¶6} On June 23, 2014, a temporary orders hearing was held from which

the Magistrate filed his July 2, 2014 Agreed Judgment Entry / Temporary Orders

naming Bobbie the residential parent and granting Ashley parenting time with the

children on Tuesdays from 5:00 – 8:00 p.m., every Thursday from 5:00 p.m. to

Friday at 6:00 p.m., and every other weekend from Friday at 6:00 p.m. to Monday

at 6:00 p.m. (Doc. 34).

       {¶7} On July 21, 2014, the Magistrate filed a Magistrate’s Order appointing

a Guardian-Ad-Litem (“GAL”) to the case. (Doc. 38). Matthew Langhals, a Union

County attorney, received the appointment as GAL. Id. A final divorce hearing

was ultimately set for March 10, 2015.

       {¶8} On October 15, 2014, Ashley filed a motion for contempt, requesting

the trial court find Bobbie in contempt for denying her parenting time. (Doc. 58).

       {¶9} In December of 2014, Bobbie moved into a new home with the

children. His live-in girlfriend, Candace Carper (“Carper”) contributed to the down

payment but was not named on the deed to the real estate. (Tr. Pg. 63).




                                         -3-
Case No. 8-16-14


       {¶10} On February 25, 2015, Ashley filed a motion to modify the temporary

orders by naming her the residential parent and legal custodian of the children. She

further requested that child support be paid to her, or, in the alternative, to modify

the existing child support order. (Doc. 83).

       {¶11} On March 2, 2015, the GAL filed his 28 page report with the trial

court recommending that Bobbie be named the residential parent. (Doc. 84). The

GAL further recommended parenting time for Ashley in accordance with the trial

court’s Local Rule, with a few exceptions. Id. The GAL did not recommend shared

parenting. The matter then proceeded to a contested hearing scheduled for March

10, 2015.

       {¶12} On January 27, 2016, the Magistrate filed a decision from the parties’

final divorce hearing recommending that Bobbie be named the residential parent

and legal custodian of the minor children. (Doc. 104). The decision recommended

that Ashley be granted parenting time as the parties agreed, or alternatively on

alternating weekends during the school year with a midweek visit. Holidays and

days of special meaning should be pursuant to the Court’s visitation guideline and

summer break the children would alternate weeks with each parent.             Id.   In

recommending Bobbie as residential parent the magistrate analyzed the statutory

factors as set forth in R.C. 3109.04(F)(1)(a)-(j) as well as R.C. 3109.04(F)(2).




                                         -4-
Case No. 8-16-14


       {¶13} On April 28, 2016, Ashley filed her objections to the magistrate’s

decision asserting that the magistrate erred in finding it would be in the best interest

of the child[ren] for Bobbie to be named their residential parent. (Doc. 114). Ashley

further argued that the magistrate erred by failing to find Bobbie in contempt for

violating the temporary orders issued by the court. Id.

       {¶14} On August 29, 2016, the trial court overruled Ashley’s objections to

the magistrate’s decision, finding the decision without error of law, and adopted the

findings and recommendations of the magistrate. (Doc. 122).

       {¶15} On September 27, 2016, the trial court filed its judgment entry naming

Bobbie the residential parent and legal custodian of Z.D. and M.D. Ashley was

granted parenting time and ordered to pay child support to Bobbie in the amount of

$542.91 per month, plus a two-percent processing fee. (Doc. 126).

       {¶16} Ashley filed her notice of appeal on October 27, 2016 raising the

following four assignments of error for our review.

                        ASSIGNMENT OF ERROR NO. I

       IT WAS AN ABUSE OF DISCRETION AND AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE WHEN THE
       TRIAL   COURT     NAMED   THE  APPELLEE   THE
       RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE
       PARTIES [SIC] MINOR CHILDREN

                       ASSIGNMENT OF ERROR NO. II

       IT WAS AN ABUSE OF DISCRETION AND AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE WHEN THE

                                          -5-
Case No. 8-16-14


       TRIAL COURT FAILED TO PROPER [SIC] APPLY ALL THE
       FACTORS IN OHIO REVISED CODE SECTION 3109.04(F)(1)

                      ASSIGNMENT OF ERROR NO. III

       THE COURT COMITTED [SIC] PLAIN ERROR WHEN IT
       FAILED TO SPECIFICALLY APPLY OHIO REVISED CODE
       3109.04(F)(1) IN IT’S [SIC] JUDGMENT ENTRY ADOPTING
       THE MAGISTRATE’S DECISION

                  ASSIGNMENT OF ERROR NO. IV
       IT WAS AN ABUSE OF DISCRETION AND AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE WHEN THE
       TRIAL COURT DID NOT FIND THE APPELLEE IN
       CONTEMPT FOR FAILING TO ABIDE BY THE PARTIES
       [SIC] AGREED JUDGMENT ENTRY/TEMPORARY ORDERS
       FILED ON JULY 2, 2014

                   First, Second and Third Assignment of Error

       {¶17} For purposes of economy, we have chosen to address together the

common points raised by the first, second and third assignments of error, while

collectively addressing the trial court’s naming of Bobbie as the residential parent

of the children.

       {¶18} In her first, second and third assignments of error, Ashley challenges

the trial court’s decision naming Bobbie the residential parent and legal custodian

of the parties’ children.   Specifically, Ashley argues that it was an abuse of

discretion and against the manifest weight of the evidence for the trial court to name

Bobbie the residential parent. Ashley also argues that the trial court committed plain




                                         -6-
Case No. 8-16-14


error by failing to properly apply the best interest factors found in R.C.

3109.04(F)(1) in its entry adopting the magistrate’s decision.

                                 Standard of Review

       {¶19} A trial court has discretion when it allocates parental rights. Miller v.

Miller, 37 Ohio St.3d 71, 74 (1988). Accordingly, we will not reverse a trial court’s

decision to allocate parental rights absent an abuse of discretion.         Davis v.

Flickinger, 77 Ohio St.3d 415, 418 (1997). A trial court abuses its discretion in

allocating parental rights when its decision is not “supported by a substantial amount

of credible and competent evidence.” Fricke v. Fricke, 3d Dist. Allen No. 1-06-18,

2006-Ohio-4845, citing Davis, Id.; Bechtol v. Bechtol, 49 Ohio St.3d 21, syllabus.

“An abuse of discretion suggests the trial court’s decision is unreasonable or

unconscionable.” Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-

519, ¶14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶20} The reason for this standard of review is that the trial judge is in the

best position to view the demeanor, attitude, and credibility of each witness and to

weigh the evidence and testimony. Davis, supra. This is especially true in a child

custody case, since there may be much that is evident in the parties’ demeanor and

attitude that does not translate well to the record. Id. at 419.

       [I]t is inappropriate in most cases for a court of appeals to
       independently weigh evidence and grant a change of custody. The
       discretion which a trial court enjoys in custody matters should be
       accorded the utmost respect, given the nature of the proceeding and

                                          -7-
Case No. 8-16-14


       the impact the court’s determination will have on the lives of the
       parties concerned. The 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. * * *

(Citations omitted). Miller v. Miller, 37 Ohio St.3d 71, 74.

       {¶21} In applying an abuse of discretion standard, a reviewing court is not

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist.

Mercer No. 10-10-10, 2010-Ohio-4811, ¶14, citing Holcomb v. Holcomb, 44 Ohio

St.3d 128 (1989).

                 Best Interest Factors Under R.C. 3109.04(F)(1)

       {¶22} R.C. 3109.04(B)(1) requires a trial court to consider the children’s

best interests when the trial court allocates parental rights. Rodriguez v. Rodriguez,

3d Dist. Mercer No. 10-13-08, 2013-Ohio-4411 and Fricke, supra.              “Further

subsections of [R.C. 3109.04] spell out ten factors that the court shall consider to

determine the best interest of the child, and five more factors to determine whether

shared parenting is in the child’s best interest.” August v. August, 3d Dist. Hancock

No. 5-13-26, 2014-Ohio-3986, ¶23, citing R.C. 3109.04(F)(1) and (2). Those

factors include the following:

       (a) The wishes of the child’s parents regarding the child’s care;

       (b) If the court has interviewed the child in chambers * * *, the
       wishes and concerns of the child, as expressed to the court;




                                         -8-
Case No. 8-16-14


      (c) The child’s interaction and interrelationship with the child’s
      parents, siblings, and any other person who may significantly
      affect the child’s best interest;

      (d) The child’s adjustment to the child’s home, school, and
      community;

      (e) The mental and physical health of all persons involved in the
      situation;

      (f) The parent more likely to honor and facilitate court-approved
      parenting time rights or visitation or companionship rights;

      (g) Whether either parent has failed to make all child support
      payments, including all arrearages, that are required of that
      parent pursuant to a child support order under which that parent
      is an obligor;

      (h) Whether either parent or any member of the household of
      either parent previously has been convicted of or pleaded guilty
      to any criminal offense involving any act that resulted in a child
      being an abused child or a neglected child; whether either parent,
      in a case in which a child has been adjudicated an abused child or
      a neglected child, previously has been determined to be the
      perpetrator of the abusive or neglectful act that is the basis of an
      adjudication; whether either parent or any member of the
      household of either parent previously has been convicted of or
      pleaded guilty to a violation of section 2919.25 of the Revised Code
      or a sexually oriented offense involving a victim who at the time
      of the commission of the offense was a member of the family or
      household that is the subject of the current proceeding; whether
      either parent or any member of the household of either parent
      previously has been convicted of or pleaded guilty to any offense
      involving a victim who at the time of the commission of the offense
      was a member of the family or household that is the subject of the
      current proceeding and caused physical harm to the victim in the
      commission of the offense; and whether there is reason to believe
      that either parent has acted in a manner resulting in a child being
      an abused child or a neglected child;


                                      -9-
Case No. 8-16-14


       (i) Whether the residential parent * * * has continuously and
       willfully denied the other parent’s right to parenting time in
       accordance with an order of the court;

       (j) Whether either parent has established a residence, or is
       planning to establish a residence, outside this state.

       {¶23} In our review of the magistrate’s decision we find that the above

factors were analyzed by the trial court, specifically under (F)(1)(a), (c), (d), (f), (h)

and (i) revealing the following: under factor (a), each party wished to be named the

residential parent; under factor (c), the children have positive interactions and

interrelationships with each parent, siblings and other people who may significantly

affect their best interest; under factor (d), the children were acclimated to their

home, school and community; under factor (f), the GAL acknowledged that Ashley

is the parent more likely to honor and facilitate court approved parenting time rights

or visitation; under factor (h), neither party had been convicted of or pled guilty to

an offense involving child abuse or child neglect, although there was one incident

of domestic violence with citations being issued against both parents, which were

both resolved with pleas to a lesser offense; and under factor (i), Bobbie, as the

temporary residential parent, has denied Ashley parenting time. (Magistrate’s

January 27, 2016 Decision at Pg. 4-5).

       {¶24} In addition to the findings under R.C. 3109.04(F)(1), the magistrate

further considered R.C. 3109.04(F)(2) and determined that shared parenting was not

in the best interests of the children due to Bobbie and Ashley’s “limited ability to

                                          -10-
Case No. 8-16-14


cooperate and make decisions jointly with respect to the children” and for the reason

that “the parties seem to put little effort into encouraging the sharing of love,

affection, and contact between the child and the other parent.” Id. at Pg. 5-6.

                                    GAL Report

       {¶25} The Magistrate also considered the GAL’s report in determining the

best interests of the children which included the wishes of Z.D. to live with her dad.

(Tr. Pg. 259). This Court has previously determined that it is permissible for a trial

court to rely upon an investigator’s assessments and recommendations so long as

the report contains sufficient facts from which the trial court can draw a proper

conclusion and the trial court does not rely exclusively on the report in reaching its

conclusion. Brammer, supra. Herein, the trial court appointed attorney Langhals as

GAL pursuant to R.C. 3109.04(C). R.C. 3109.04(C) provides in relevant part:

       Prior to trial, the court may cause an investigation to be made as
       to the character, family relations, past conduct, earning ability,
       and financial worth of each parent and may order the parents and
       their minor children to submit to medical, psychological, and
       psychiatric examinations. The report of the investigation and
       examinations shall be made available to either parent or the
       parent's counsel of record not less than five days before trial,
       upon written request. The report shall be signed by the
       investigator, and the investigator shall be subject to cross-
       examination by either parent concerning the contents of the
       report. * * *

       {¶26} In our review of the GAL report, we find such contains sufficient facts

from which the trial court could draw proper conclusions in determining the best


                                        -11-
Case No. 8-16-14


interests of the children. In that regard, the GAL report details the best interest

factors under R.C. 3109.04(F)(1)(a)-(i). In our review of the GAL report, it is

evident that attorney Langhals’ investigation was thorough and competently

rendered. In our review of the magistrate’s decision, it is clear that the GAL report

was not the controlling reason for the recommendations of custody to Bobbie.

       {¶27} Accordingly, we find no merit in Ashley’s argument that the trial

court’s award of custody to Bobbie was an abuse of discretion and against the

manifest weight of the evidence as competent and credible evidence exists in the

record to support the award of custody to Bobbie.

       {¶28} In addressing Ashley’s argument that the trial court committed plain

error by failing to apply R.C. 3109.04(F)(1) in its judgment entry adopting the

magistrate’s decision, we first must determine our standard of review in such regard.

To constitute plain error in civil cases, we are to apply it “only in the extremely rare

case involving exceptional circumstances where error, to which no objection was

made at the trial court, seriously affects the basic fairness, integrity, or public

reputation of the judicial process, thereby challenging the legitimacy of the

underlying process itself”. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997).

       {¶29} In our review of the trial court’s judgment entry adopting the

magistrate’s decision, we determine the trial court conducted its independent review

of the objections to magistrate’s decision as evidenced by the following:


                                         -12-
Case No. 8-16-14


       After review of the Decision, Defendant’s Objection, Plaintiff’s
       Response, and the transcript of the hearing, the Court finds that
       the Decision is without error of law and hereby ADOPTS the
       Magistrate’s Findings and Recommendations. (Doc. 122).

While not condoning the brevity of the trial court’s judgment entry, we find that

such does not rise to the level of plain error under the circumstances of this case.

       {¶30} Accordingly, Ashley’s first, second and third assignments of error are

overruled.

                            Fourth Assignment of Error

       {¶31} In her fourth assignment of error Ashely asserts that the trial court

abused its discretion for failing to find Bobbie in contempt for violating the

temporary orders of the court.

       {¶32} As stated hereinbefore, to constitute an abuse of discretion, the trial

court’s decision must be “unreasonable or unconscionable.” Brammer, supra.

       {¶33} In this case the trial court issued temporary orders of custody (to

Bobbie) and parenting time (to Ashley) on July 2, 2014. On October 15, 2014

Ashley filed a motion for Citation in Contempt; motion to Appear and Show Cause

alleging that Bobbie had violated the temporary orders regarding her parenting time

with the children. (Doc. 58).

       {¶34} The record is unclear if the matter ever proceeded to a contempt

hearing prior to the divorce trial. However, the contempt motion was heard during

the divorce trial. The magistrate’s decision addresses and determines that Bobbie,

                                         -13-
Case No. 8-16-14


as the temporary residential parent of the children, denied Ashley parenting time

(Mag. Dec. Pg. 7). Thus, we determine that the trial court did receive evidence

relative to Ashley’s contempt motion at the final hearing but did not specifically

make findings or recommendations of contempt. The issue then becomes whether

this constitutes an abuse of discretion.

       {¶35} In this case, the failure of the magistrate to specifically rule on the

contempt motion does not constitute an abuse of discretion. “It is well settled that

when a motion is not ruled on by a trial court the motion is deemed to have been

denied.” Vogias v. Ohio Farmers Insurance Company, 11th Dist. Portage No. 2007-

P-0099, 177 Ohio App.3d 391, 2008-Ohio-3605, citing Newman v. Al Castrucci

Ford Sales, Inc., 54 Ohio App.3d 166, 169 (1988), ¶45. It makes perfect sense that

because the matter of contempt occurred approximately 16 months prior to the

issuance of the magistrate’s decision, the contempt of Bobbie was relevant to

custody (under R.C. 3109.04) and not as to the aspect of punishment. Therefore,

the magistrate did determine Bobbie’s behavior as a custody factor, under R.C.

3109.04, in favor of Ashley.

       {¶36} Moreover, we determine that since the magistrate chose not to rule on

Ashley’s contempt citation, the magistrate effectively denied the motion. And since

the magistrate determined that Bobbie’s behavior resulted in a custody factor in

favor of Ashley, Ashley has failed to show that she was prejudiced by the


                                           -14-
Case No. 8-16-14


magistrate’s failure to make specific recommendations on contempt. In summary,

the appellant has failed to show that the trial court abused its discretion by not ruling

on the motion. Accordingly, we overrule the fourth assignment of error.

       {¶37} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment entry of the trial court.

                                                                   Judgment Affirmed

PRESTON, P.J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr




                                          -15-
