[Cite as Sheeter v. Sheeter, 2013-Ohio-1524.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                   JACKSON COUNTY

ANNA L. SHEETER,               :
                               :
     Plaintiff-Appellant,      : Case No. 12CA7
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
MICHAEL D. SHEETER,            : ENTRY
                               :
     Defendant-Appellee.       : Released: 04/09/13
_____________________________________________________________
                          APPEARANCES:

Lorene G. Johnston, Jackson, Ohio, for Appellant.

William S. Cole, Jackson, Ohio, for Appellee.

_____________________________________________________________

McFarland, P.J.

        {¶ 1} This is an appeal by Anna L. Sheeter, Appellant, from the

judgment of the Jackson County Court of Common Pleas adopting the

Magistrate’s decision to terminate the parties’ shared parenting plan and

decree, and designating Appellee, Michael D. Sheeter, as the custodial

parent of the parties’ minor children. On appeal, Appellant contends that 1)

the trial court erred as a matter of law when it affirmed the Magistrate’s

decision; 2) the trial court erred as a matter of law and abused its discretion

in that the evidence was insufficient to support its conclusion that it was in
Jackson App. No. 12CA7                                                           2


the best interest of the children to terminate the shared parenting decree; 3)

the trial court erred as a matter of law and abused its discretion in naming

Appellee sole residential parent when it was not in the best interest of the

children; and 4) the trial court erred as a matter of law and abused its

discretion in that its visitation order was not in the best interest of the

children.

      {¶ 2} Because we conclude that the trial court did not err or abuse its

discretion in terminating the shared parenting decree, naming Appellee as

the custodial parent of parties’ minor children, and awarding Appellant

standard companionship time according to the court’s local rule, we find no

merit to Appellant’s second, third and fourth assignments of error and they

are, therefore, overruled. Additionally, in light of our conclusion that

Appellant has failed to affirmatively demonstrate that the trial court failed to

exercise independent judgment in adopting the magistrate’s decision, we

find no merit to Appellant’s first assignment of error and it is also overruled.

      {¶ 3} Accordingly, having found no merit in the assignments of error

raised by Appellant, the decision of the trial court is affirmed.

                                     FACTS

      {¶ 4} Appellant and Appellee were married on October 9, 2004, and

are the parents of two minor children: a son born on April 11, 2005, and a
Jackson App. No. 12CA7                                                          3


daughter born on August 4, 2006. Appellant filed a complaint for divorce on

October 22, 2007, after Appellee left the marital residence and removed the

two minor children. A subsequently filed magistrate’s decision dated May

7, 2008, referenced that Appellee had obtained temporary custody of the

children just days prior to the filing of Appellant’s divorce complaint, and

ordered that Appellee continue as the temporary custodian of the children.

After a series of contempt motions, motions for emergency orders and

referral to court mediation, the parties were able to agree upon a shared

parenting plan, which the court adopted as part of its issuance of a shared

parenting decree and decree of divorce filed on April 22, 2009.

      {¶ 5} The shared parenting plan and decree collectively provided that

the parties share time with the children equally. More specifically, the plan

provided that the parties were to share physical custody of the children on a

rotating two week schedule. Neither party was expressly designated as the

residential parent. Then, on June 2, 2010, Appellee filed a motion to

terminate and/or modify the existing plan of shared parenting and requested

that he be designated the residential parent of the parties’ minor children.

This filing was followed by a motion in contempt, claiming that Appellant

was in contempt of the April 22, 2009, orders.
Jackson App. No. 12CA7                                                               4


      {¶ 6} Appellant filed a memorandum contra Appellee’s motion for

termination on June 6, 2010, seeking that Appellee’s motion be dismissed

and denying she was in contempt. Appellant followed with the filing of an

Answer in Contempt on August 11, 2010, denying she had failed to allow

Appellee his visitation, as alleged in the contempt motion. The matter was

subsequently referred to mediation, which was unsuccessful. The matter

proceeded to be heard by the magistrate on October 5, 2010, and May 31,

2011. Post-trial briefs were submitted by the parties afterwards. Appellee’s

brief continued to seek termination of the plan of shared parenting, and

requested Appellee be designated the residential parent. Appellant requested

that shared parenting continue, but also the designation of residential parent

should shared parenting be terminated.

      {¶ 7} On June 29, 2011, the magistrate issued pre-trial orders asking

the parties to address the best interest factors in the form of post-trial briefs.

Thus, the parties each submitted supplemental post-trial briefs specifically

addressing the R.C. 3109.04(F)(1)(a-j) best interest factors. Each party

argued they were the more favored parent under a best interest analysis. A

magistrate’s decision with findings of facts and conclusions of law was

issued on September 20, 2011, which terminated the shared parenting plan,

designated Appellee as the residential parent, and awarded Appellant
Jackson App. No. 12CA7                                                           5


standard companionship with the court’s local rules. The magistrate cited

his consideration of the R.C. 3109.04(F)(1) factors in rendering his decision.

      {¶ 8} Appellant filed objections to the magistrate’s decision on

October 4, 2011, and filed supplemental objections on January 17, 2012.

The trial court issued an order on April 5, 2012, remanding the matter to the

magistrate for determination as to whether he considered the R.C.

3109.04(F)(1) factors in reaching his decision. Thus, the magistrate issued

another decision with findings of facts and conclusions of law on April 17,

2012, which was followed by a nunc pro tunc magistrate’s decision with

findings of fact and conclusions of law on April 23, 2012. Appellant again

objected to the magistrate’s decision. The trial court adopted the decision of

the magistrate, over the Appellant’s objections, on May 24, 2012. In issuing

its order, the trial court noted that it had independently reviewed the record

in adopting the magistrate’s decision. It is from the trial court’s order

adopting the decision of the magistrate that Appellant now brings her appeal,

assigning the following errors for our review.

                         ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
      AFFIRMED THE MAGISTRATE’S DECISION.

II.   THE TRIAL COURT ERRED AS A MATTER OF LAW AND
      ABUSED ITS DISCRETION IN THAT THE EVIDENCE WAS
      INSUFFICIENT TO SUPPORT ITS CONCLUSION THAT IT WAS
Jackson App. No. 12CA7                                                           6


       IN THE BEST INTEREST OF THE CHILDREN TO TERMINATE
       THE SHARED PARENTING DECREE.

III.   THE TRIAL COURT ERRED AS A MATTER OF LAW AND
       ABUSED ITS DISCRETION IN THAT NAMING [SIC]
       DEFENDANT-APPELLEE- FATHER SOLE RESIDENTIAL
       PARENT WHEN IT WAS NOT IN THE BEST INTEREST OF THE
       CHILDREN.

IV.    THE TRIAL COURT ERRED AS A MATTER OF LAW AND
       ABUSED ITS DISCRETION IN THAT ITS VISITATION ORDER
       WAS NOT IN THE BEST INTEREST OF THE CHILDREN.”

                         ASSIGNMENT OF ERROR II

       {¶ 9} For ease of analysis, we address Appellant’s assignments of

error out of order. In her second assignment of error, Appellant contends

that the trial court erred and abused its discretion in terminating the shared

parenting decree, arguing that the evidence was insufficient to support the

conclusion that such a decision was in the best interest of the children.

Thus, we begin our analysis by considering the appropriate standard of

review.

       {¶ 10} “ ‘An appellate court reviews a trial court’s decision to

terminate a shared parenting plan under an abuse of discretion standard.’ ”

Nolan v. Nolan, 4th Dist. No. 11CA3444, 2012-Ohio-3736, ¶ 31; quoting In

re J.L.R., 4th Dist. No. 08CA17, 2009-Ohio-5812, ¶ 30. An abuse of

discretion connotes more than a mere error of judgment; it implies that the

court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v.
Jackson App. No. 12CA7                                                           7


Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Further, R.C.

3109.04(E)(2)(c), which governs the termination of shared parenting

decrees, provides as follows:

      “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

      parents or whenever it determines that shared parenting is not

      in the best interest of the children.” (Emphasis added).

      {¶ 11} Here, a review of the record reveals that Appellee filed a

motion requesting that the trial court terminate the parties’ shared parenting

decree. The magistrate, in issuing several pre-trial orders, and also in the

issuance of its decision, indicated that the best interest of the children would

govern in the determination of whether to grant this request. Further, in his

decision, the magistrate indicated he had considered the best interests of the

children in terminating the shared parenting decree.

      {¶ 12} In adopting the magistrate’s decision, over the objections of

Appellant, the trial court stated that “[t]he Court, upon its own review,

determined the instant shared parenting plan was approved under Ohio

Revised Code Section 3109.04(D)(1)(a)(i).” As such, the trial court

determined that “[i]n this case, the shared parenting plan may be terminated
Jackson App. No. 12CA7                                                           8


upon the request either party without a determination of the best interest of

the children.” The trial court further noted that the magistrate nevertheless

considered the best interests of the children in terminating shared parenting.

      {¶ 13} Based upon the plain language of the statute, we are in

agreement with the reasoning of the trial court with respect to the

termination of the shared parenting agreement. The language of the statute

clearly permits shared parenting to be terminated upon the request of one or

both parents when the shared parenting decree was approved under R.C.

3109.04(D)(1)(a)(i). The determination by the trial court that the shared

parenting plan at issue herein, which was incorporated into a shared

parenting decree, was approved pursuant to R.C. 3109.04(D)(1)(a)(i) was

not contested either below or on appeal.

      {¶ 14} As such, we find no abuse of discretion on the part of the trial

court in adopting the magistrate’s decision to terminate the shared parenting

decree. Accordingly, Appellant’s second assignment of error is overruled.

                         ASSIGNMENT OF ERROR III

      {¶ 15} In her third assignment of error, Appellant contends that the

trial court erred and abused its discretion in naming Appellee as the sole

residential parent, claiming such decision was not in the best interest of the

children. “Although a trial court must follow the dictates of R.C. 3109.04 in
Jackson App. No. 12CA7                                                           9


deciding child-custody matters, it enjoys broad discretion when determining

the appropriate allocation of parental rights and responsibilities.” H.R. v.

L.R., 181 Ohio App.3d 837, 2009-Ohio-1665, 911 N.E.2d 321, ¶ 13, citing

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

Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110, at ¶ 23. “An appellate

court must afford a trial court's child custody determinations the utmost

respect, ‘given the nature of the proceeding[,] the impact the court's

determination will have on the lives of the parties concerned[, and the fact

that] [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.’ ” H.R. at ¶ 13, quoting Pater v. Pater (1992), 63 Ohio

St.3d 393, 396, 588 N.E.2d 794 (1992) (alterations sic) (other internal

quotation omitted).

      {¶ 16} As set forth above, we review “a trial court's decision to

terminate a shared parenting plan under an abuse of discretion standard.” In

re J.L.R., supra, at ¶ 30. Further, as set forth above, we have already

determined that the trial court’s decision to terminate the shared parenting

plan and decree, upon the request of Appellee, was not an abuse of

discretion. Our present inquiry, however, focuses on whether, after

terminating the shared parenting decree, the trial court abused its discretion
Jackson App. No. 12CA7                                                            10


in designating Appellee as the custodial parent of the parties’ minor

children.

      {¶ 17} “Upon the termination of a prior final shared parenting decree

under [R.C. 3109.04(E)(2)(c) ], the court shall proceed and issue a modified

decree for the allocation of parental rights and responsibilities for the care of

the children under the standards applicable under divisions (A), (B), and (C)

of [R.C. 3109 .04] as if no decree for shared parenting had been granted and

as if no request for shared parenting ever had been made.” R.C.

3109.04(E)(2)(d).

      {¶ 18} “When making the allocation of the parental rights and

responsibilities for the care of the children under this section 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). When

determining the best interest of the children for purposes of allocating

parental rights and responsibilities, a trial court must consider the factors

enumerated in R.C. 3109.04(F)(1). See In re J.L.R. at ¶ 33. These best

interest factors are as follows, as set forth in R.C. 3109.04(F)(1)(a-j):

      “(a) The wishes of the child's parents regarding the child's care;
Jackson App. No. 12CA7                                                     11


      (b) If the court has interviewed the child in chambers pursuant

      to division (B) of this section regarding the child's wishes and

      concerns as to the allocation of parental rights and

      responsibilities concerning the child, the wishes and concerns

      of the child, as expressed to the court;

      (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 and 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;
Jackson App. No. 12CA7                                                     12


      (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
Jackson App. No. 12CA7                                                          13


      has acted in a manner resulting in a child being an abused child

      or a neglected child;

      (i) 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;

      (j) Whether either parent has established a residence, or is

      planning to establish a residence, outside this state.”

      {¶ 19} Here, the magistrate’s decision indicated that the R.C.

3109.04(F)(1)(a-j) factors were considered, and that such consideration

indicated that Appellee should be named the residential parent. Some of the

facts considered, although in reference to the best interests of the children

for purposes of termination of the shared parenting decree pursuant to R.C.

3109.04(F)(2), were as follows: 1) the fact that the children were enrolled in

two different schools because the parties could not cooperate; 2) the fact that

Appellant’s portion of the children’s medical expenses remained unpaid, in

part due to her refusal to accept certified mail from Appellee; 3) the parties’

inability to cooperate concerning medical appointments and treatment for the

children; 4) a notation by the parties’ minor son’s child psychiatrist
Jackson App. No. 12CA7                                                           14


referencing the parties’ antagonistic relationship toward one another; and 5)

the parties’ inability to communicate effectively, even by means of email.

      {¶ 20} A review of the record reveals that both parties contributed to

the above problems. For instance, although Appellant removed one of the

children from the school in which Appellee had initially enrolled her, the

record indicates that Appellee enrolled the child in that school without

Appellant’s knowledge or permission. Both of these actions were contrary

to the best interests of the children. Further, the trial court cites the parties’

inability to communicate and agree upon medical appointments and

treatment for the children and the parties’ antagonistic relationship. A

review of the record indicates the both parties contributed to these problems.

For instance, while Appellant failed to cooperate with Appellee in filling out

a behavior chart for the parties’ son as recommended by the child’s

psychiatrist, the record also reveals that Appellee unilaterally cancelled a

scheduled appointment the child had with the psychiatrist. Thus, both

parties, at times, as a result of their inability to communicate and cooperate,

acted contrary to the best interests of the children.

      {¶ 21} As set forth above, although the trial court was not required to

consider the best interests of the children in terminating the shared parenting

plan, it did. In light of the foregoing, it is apparent that shared parenting was
Jackson App. No. 12CA7                                                         15


unworkable for these parties, and thus, the trial court was faced with the task

of designating a residential parent. Although the trial court did not expressly

discuss each factor on the record, the magistrate’s decision, which was

adopted by the trial court states that the R.C. 3109.04(F)(1) factors were

considered in reaching the decision to designate Appellee as the childrens’

residential parent. While some of the evidence in the record tends to support

Appellant, there is also evidence in the record that supports the trial court’s

decision to designate Appellee as the residential parent. And, in light of our

abuse of discretion standard of review, we must be mindful that “ ‘a

reviewing court may not merely substitute its judgment for that of the trial

court.’ ” Clyburn v. Gregg, 4th Dist. No. 11CA3211, 2011-Ohio-5239, ¶ 38;

quoting Melvin v. Martin, 4th Dist. No. 05CA44, 2006-Ohio-5473, ¶ 7; citing

In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

Thus, even if we were to reach a different conclusion based upon these facts,

we cannot conclude that the trial court abused its discretion in designating

Appellee as the residential parent of the parties’ minor children.

Accordingly, Appellant’s third assignment of error is overruled.

                         ASSIGNMENT OF ERROR IV

      {¶ 22} In her fourth assignment of error, Appellant contends that the

trial court erred and abused its discretion in issuing its visitation order,
Jackson App. No. 12CA7                                                          16


which awarded Appellant “companionship rights pursuant to [the] Court’s

guidelines set forth in Local Rule 19.” Specifically, Appellant contends that

the trial court abused its discretion in granting her companionship time with

her children only every other weekend and one evening a week, when, for

the last two years, she and Appellee had shared the children equally. In

support of her argument, Appellant cites the young age of the children, the

fact that they had been used to being with their parents equally for the last

three years, and the fact that she has been fully involved in the children’s

lives. She further argues that cutting a parent out the children’s lives is

contrary to their best interests.

      {¶ 23} As stated above, the trial court “enjoys broad discretion when

determining the appropriate allocation of parental rights and

responsibilities.” H.R. at ¶ 13 (citations omitted). This broad discretion also

applies to custody proceedings. In re J.C., 4th Dist. No. 09CA3334, 2010-

Ohio-4086, at ¶ 9. Further, as discussed above under our consideration of

Appellant’s second and third assignments of error, after considering the best

interest factors set forth in R.C. 3109.04(F)(1)(a-j), the trial court terminated

the shared parenting decree and designated Appellee as residential parent of

the children.
Jackson App. No. 12CA7                                                          17


      {¶ 24} Contrary to Appellant’s argument, this court has previously

noted that awarding a parent a trial court's standard companionship schedule

does not cut him or her out the children’s lives. Clyburn v. Gregg, supra, at

¶ 46. Further, and a set forth above, under the abuse-of-discretion standard,

“a reviewing court may not merely substitute its judgment for that of the trial

court.” Clyburn at ¶ 38; quoting Melvin at ¶ 7. Thus, even if this Court

would have reached a different decision with respect to Appellant’s

companionship award, we cannot conclude that the trial court's ording

adopting the magistrate’s decision on this issue constituted an abuse of

discretion. Accordingly, Appellant’s fourth assignment of error is overruled.

                         ASSIGNMENT OF ERROR I

      {¶ 25} In her first assignment of error, Appellant contends that the

trial court erred as a matter of law when it affirmed the magistrate’s

decision. More specifically, Appellant argues that the trial court failed to

undertake an independent review in determining whether the magistrate

properly determined all factual issues and appropriately applied the law.

Thus, Appellant argues that the trial court abused its discretion in adopting

the magistrate’s decision.

      {¶ 26} Civ.R. 53(D)(4)(d) governs a trial court's ruling on objections

to a magistrate's decision. “In ruling on objections, the court shall undertake
Jackson App. No. 12CA7                                                         18


an independent review as to the objected matters to ascertain that the

magistrate has properly determined the factual issues and appropriately

applied the law.” Id. The trial court's review of a magistrate's decision

“contemplates a de novo review of any issue of fact or law that a magistrate

has determined when an appropriate objection is timely filed. The trial court

may not properly defer to the magistrate in the exercise of the trial court's de

novo review. The magistrate is a subordinate officer of the trial court, not an

independent officer performing a separate function.” Knauer v. Keener, 143

Ohio App.3d 789, 793-94, 758 N.E.2d 1234 (2001).

      {¶ 27} Because an appellate court generally presumes regularity in

the proceedings below, we presume that the trial court conducted an

independent analysis in reviewing the magistrate's decision. Mahlerwein v.

Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 47.

And because of that presumption, the party asserting error bears the burden

of affirmatively demonstrating that the trial court failed to perform an

independent analysis. Arnold v. Arnold, 4th Dist. No. 04CA36, 2005-Ohio-

5272, ¶ 31; Mahlerwein at ¶ 47. “An affirmative duty requires more than a

mere inference [;] it requires [an] appellant to provide the reviewing court

with facts to rebut our general presumption.” In re Taylor G., 6th Dist. No. L-

05-1197, 2006-Ohio-1992, ¶ 21. Simply because a trial court adopted a
Jackson App. No. 12CA7                                                          19


magistrate's decision does not mean that the court failed to exercise

independent judgment. State ex rel. Scioto Cty. Child Support Enforcement

Agency v. Adams, 4th Dist. No. 98CA2617, 1999 WL 597257 (July 23,

1999).

      {¶ 28} Here, the judgment entry that adopted the magistrate’s

decision stated:

      “The court has made an independent review as to the objected

      matters. This included a review of all filings by the parties, the

      transcript of the proceeding filed by Plaintiff, and a review of

      the applicable law. Upon the independent review, the Court

      ascertains that the Magistrate has properly determined the

      factual issues and appropriately applied the law.”

Thus, the record indicates that the trial court, after conducting an

independent review, adopted the magistrate’s decision and entered judgment

terminating the shared parenting decree, designating Appellee as the

residential parent, and awarding Appellant standard companionship time.

Additionally, as discussed under our analysis of Appellant’s second

assignment of error, the trial court noted a different legal standard applied

with regard to the issue of termination of the shared parenting decree. As set

forth above, the trial court stated that the decree could be terminated simply
Jackson App. No. 12CA7                                                         20


at the request of one of the parties, and did not require a best interest

analysis, which, nevertheless, was performed by the magistrate.

      {¶ 29} In light of the foregoing, we conclude that Appellant has not

affirmatively demonstrated that the trial court failed to exercise independent

judgment. Further, as already set forth in our consideration of Appellant’s

second, third, and fourth assignments of error, we have found no abuse of

discretion on the part of the trial court in terminating the parties’ shared

parenting decree, designating Appellee as the residential parent and

awarding Appellant standard companionship time. Accordingly, Appellant’s

first assignment of error is overruled.

                                                   JUDGMENT AFFIRMED.
Jackson App. No. 12CA7                                                          21


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.


                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland
                                            Presiding Judge



                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
