[Cite as Nungester v. Nungester, 2017-Ohio-6935.]




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




KATE NUNGESTER,
                                                         CASE NO. 9-16-64
       PLAINTIFF-APPELLEE,

       v.

ROBERT NUNGESTER,                                        OPINION

        DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                                  Family Division
                            Trial Court No. 13-DR-044

                      Judgment Reversed and Cause Remanded

                             Date of Decision: July 24, 2017



APPEARANCES:

        Ted Coulter for Appellant

        Nathan Witkin for Appellee
Case No. 9-16-64


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Robert D. Nungester (“Robert”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County, Family

Division, denying his motions to allocate parental rights and responsibilities and his

motion to modify parenting time. For the reasons set forth below, the judgment is

reversed.

       {¶2} Robert and plaintiff-appellee Kate Nungester (“Kate”) were divorced

on August 23, 2013. Doc. 58. At that time, they entered into an agreed parenting

plan for their three minor children, Katlyn, Roston, and Kareston.          Id.   The

agreement designated Kate as the residential parent and gave visitation to Robert

with the intent to increase his visitation over time to equal that set forth in Marion

County Local Rule 32(A).        Id.   The visitation was to be increased at the

recommendation of the children’s counselor with overnight visits occurring when

Robert had appropriate housing. Id.

       {¶3} On March 20, 2015, Robert filed a motion to modify the agreement and

to be named the residential parent of the children. Doc. 60. That same day Robert

also filed a motion to modify his parenting time. Doc. 61. On April 3, 2015, Kate

filed a motion to show cause alleging that Robert had failed to pay her funds as

required in the divorce decree. Doc. 75. Robert then filed a motion to show cause

alleging that Kate had failed to allow him access to the barn on the property as

required by the court order and for removing him from the medical insurance before

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authorized to do so by the court order. Doc. 87. On March 23, 2016, Robert and

Kate resolved these issues in an agreement and stipulation of the parties. Doc. 113.

The agreement also provided a modification of the visits from being supervised by

the Marion County’s Supervised Visitation Agency (“CAREFIT”) to occurring in a

public place and being supervised by Kate. Id. The agreement also provided that

Robert would meet with the children at counseling sessions at the discretion of the

counselor. Id. Another provision was that the parties could “mutually agree to

progression to periods of unsupervised parenting time with [Robert] and the minor

children before the next evidentiary review hearing.” Id. at 4.

       {¶4} On October 18, 2016, a hearing was held on Robert’s motions. Doc.

127. Robert indicated at the hearing that he merely wanted to expand his visitation

rights to match the default visitation schedule of the court. Tr. 4. No argument was

made as to a change of circumstance that would support the motion to change the

residential parent from Kate to Robert. On November 23, 2016, the trial court

entered judgment denying Robert’s motions. Doc. 127.        The judgment specified

that Robert was seeking more specific parenting time “in accordance with Local

Rule 32A”. Id. at 2. Findings of fact and conclusions of law were filed by the trial

court on December 5, 2016. Doc. 129. Robert filed his notice of appeal on

December 22, 2016. Doc. 132. On appeal, Robert raises the following assignments

of error.



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                            First Assignment of Error

       The trial court erred as a matter of law by requiring there be
       proven a change of circumstances of the children of residential
       parent before there was a modification of the parenting time
       (visitation order) of [Robert].

                           Second Assignment of Error

       The trial court erred as a matter of law, abused its discretion and
       erred against the weight of the evidence by determining it was not
       in the best interests of the parties’ children to have Local Rule
       32(A) parenting time with [Robert] and therefore denying
       [Robert’s] motion to modify parenting time.

       {¶5} The establishment of a non-residential parent’s visitation rights is left

to the sound discretion of the trial court and will not be reversed on appeal absent a

showing that an abuse of that discretion has occurred. Cichanowicz v. Cichanowicz,

3d Dist. Crawford No. 3-13-05, 2013-Ohio-5657, ¶ 71. “The term ‘abuse of

discretion’ means more than a mere error; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable.” Hay v. Shafer, 3d Dist. Mercer No.

10-10-10, 2010-Ohio-4811, ¶ 10. Since the trial court is in the best position to

observe the witnesses and weigh the testimony, a reviewing court should not reverse

a decision merely because it disagrees with the outcome. Clark v. Clark, 3d Dist.

Union No. 14-06-56, 2007-Ohio-5771, ¶23. “A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses

and evidence is not.” Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d

77, 81, 461 N.E.2d 1273 (1984).


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       {¶6} The Ohio Supreme Court has determined that modification of a child

visitation is governed by R.C. 3109.051 unless shared parenting was ordered.

Braatz v. Braatz, 85 Ohio St.3d 40, 1999-Ohio-203, 706 N.E.2d 1218.

       “ ‘Visitation’ and ‘custody’ are related but distinct legal concepts.
       ‘Custody’ resides in the party or parties who have the right to
       ultimate legal and physical control of a child. ‘Visitation’ resides
       in a noncustodial party and encompasses that party’s right to visit
       the child. * * * In other words, ‘visitation’ is granted to someone
       who does not have ‘custody.’ Although a party exercising
       visitation rights might gain temporary physical control over the
       child for that purpose, such control does not constitute ‘custody’
       because the legal authority to make fundamental decisions about
       the child’s welfare remains with the custodial party and because
       the child eventually must be returned to the more permanent
       setting provided by that party.”

Id. at 44 quoting In re Gibson, 61 Ohio St.3d 168, 171, 573 N.E.2d 1074 (1991).

Based upon this reasoning, the Court held that the appropriate statute for questions

of modification of visitation was R.C. 3109.051, not R.C. 3109.04. The statute

states in pertinent part the following.

       (A) If a divorce * * * proceeding involves a child and if the court
       has not issued a shared parenting decree, the court shall consider
       any mediation report filed pursuant to [R.C. 3109.052] and, in
       accordance with division (C) of this section, shall make a just and
       reasonable order or decree permitting each parent who is not the
       residential parent to have parenting time with the child at the time
       and under the conditions that the court directs, unless the court
       determines that it would not be in the best interest of the child to
       permit that parent to have parenting time with the child and
       includes in the journal its findings of fact and conclusions of law.
       Whenever possible, the order or decree permitting the parenting
       time shall ensure the opportunity for both parents to have
       frequent and continuing contact with the child, unless frequent


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      and continuing contact by either parent with the child would not
      be in the best interest of the child. * * *

      ***

      (C) When determining whether to grant parenting time rights to
      a parent pursuant to this section * * *, when establishing a specific
      parenting time or visitation schedule, and when determining
      other parenting time matters under this section * * *, the court
      shall consider all other relevant factors, including, but not limited
      to, all of the factors listed in division (D) of this section. * * *

      (D) In determining whether to grant parenting time to a parent
      pursuant to this section * * * in establishing a specific parenting
      time or visitation schedule, and in determining other parenting
      time matters under this section * * *, the court shall consider all
      of the following factors.

      (1) The prior interaction and interrelationships of the child with
      the child’s parents, siblings, and other persons related by
      consanguinity or affinity, * * *;

      (2) The geographical location of the residence of each parent and
      the distance between those residences, * * *;

      (3) The child’s and parents’ available time, including, but not
      limited to, each parent’s employment schedule, the child’s school
      schedule, and the child’s and the parents’ holiday and vacation
      schedule;

      (4) The age of the child;

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

      ***

      (7) The health and safety of the child;

      ***

      (9) The mental and physical health of all parties;

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       (10) Each parent’s willingness to reschedule missed parenting
       time and to facilitate the other parent’s parenting time rights, and
       with respect to a person who requested companionship or
       visitation, the willingness of that person to reschedule missed
       visitation;

       ***

       (13) Whether the residential parent or one of the parents subject
       to a shared parenting decree has continuously and willfully denied
       the other parent’s right to parenting time in accordance with an
       order of the court;

       ***

       (16) Any other factor in the best interest of the child.

R.C. 3109.051. “The party seeking the modification of the parenting time schedule

bears the burden of proving that the requested change is in the child’s best interest.”

Cichanowicz, supra at ¶ 70 quoting Williamson v. Cooke, 10th Dist. Franklin No.

09AP-222, 2009-Ohio-6842, ¶ 17/

       {¶7} Robert argues in the first assignment of error that the trial court erred in

denying his motion for a modification of his visitation rights because there was no

change of circumstances as is required by R.C. 3109.04. In Braatz the Supreme

Court of Ohio determined that a modification of visitation does not require the

moving party to show a change of circumstances. Braatz, supra at 45. Instead the

trial court must consider the statutory factors set forth in R.C.3109.051(D) and make

a determination as to the best interest of the child. Id. There is no question that the

trial court in its entry used the wrong statute in considering the motion. Specifically,

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the trial court stated that R.C. 3109.04 was the guide to be followed when addressing

the modification of parental rights and responsibilities. Doc. 127. This would be

correct for a modification of parental rights, but the trial court was addressing a

modification of visitation, not a modification of custody.1 As discussed above, the

correct statute to be used in modifications of visitation is R.C. 3109.051. Pursuant

to the statute, the trial court must consider the listed factors. A review of the two

statutes shows that the factors listed in R.C. 3109.04(F), which were addressed by

the trial court in this case, do somewhat overlap with the factors set forth in R.C.

3109.051. However, there are several additional factors set forth in R.C. 3109.051

which the statute states “shall” be considered. The trial court failed to consider

those factors and applied the incorrect statute. An error at law is reversible error.

Thus, the trial court erred as a matter of law by failing to consider the statutory

factors set forth in R.C. 3109.051. The first assignment of error is sustained.

         {¶8} In the second assignment of error, Robert claims that the trial court’s

determination as to the best interest of the children was not supported by the

manifest weight of the evidence. This court noted above that the trial court used the

wrong statute when considering the best interests of the children. Before the trial

court can make a determination as to the best interests of the children in a case



1
  Although Robert filed a motion to modify parental rights and responsibilities as well as a motion to modify
parenting time, he did not argue that a change of custody should occur. As discussed above, he indicated to
the trial court that he only wished to have visitation as set forth in the local rules, not change the residential
parent status. Based upon the judgment entry, the trial court identified this as the only issue for review as
well.

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Case No. 9-16-64


involving a modification of visitation, it must consider the factors mandated by R.C.

3109.051.   The trial court did not do so in this case.       Therefore the second

assignment of error is sustained.

       {¶9} Having found prejudicial error in the particulars assigned and argued,

the judgment of the Court of Common Pleas of Marion County, Family Division is

reversed and the matter is remanded for further proceedings in accord with this

opinion.

                                                               Judgment Reversed
                                                             And Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/hls




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