[Cite as Wright v. Wright, 2018-Ohio-1451.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


BRIAN J. WRIGHT,                                :         OPINION

                 Plaintiff-Appellant,           :
                                                          CASE NO. 2017-G-0118
        - vs -                                  :

ELIZABETH D. WRIGHT,                            :

                 Defendant-Appellee.            :


Civil Appeal from the Geauga County Court of Common Pleas.
Case No. 2015 DC 00120.

Judgment: Affirmed.


Adam M. Van Ho, 10 West Streetsboro Road, Suite 205, Hudson, OH 44236 (For
Plaintiff-Appellant).

Dominic M. Antonelli and Kristen A. Crane, Rieth Antonelli & Raj, 1406 West Sixth
Street, Suite 200, Cleveland, OH 44113 (For Defendant-Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Brian J. Wright, appeals from the April 17, 2017 judgment of the

Geauga County Court of Common Pleas, approving and adopting the magistrate’s

December 23, 2016 decision. For the following reasons, the judgment of the trial court

is affirmed.

        {¶2}     On February 13, 2015, appellant filed a complaint for divorce from

appellee, Elizabeth D. Wright. Regarding their two minor children, appellant requested

a shared parenting plan or that he be designated the residential parent. Appellee filed
an answer and counterclaim and requested that she be designated the residential

parent.

       {¶3}   The trial court issued temporary orders, and the parties entered into a

Divorce Settlement Agreement, which addressed all matters related to debt and

personal property.     Neither party filed a shared parenting plan pursuant to R.C.

3109.04(A)(1) & (G).

       {¶4}   On April 26, 2016, the parties appeared before the magistrate to resolve

the issues of child custody, child support, and tax dependency exemptions. Appellant

and appellee both testified at the hearing.

       {¶5}   On December 23, 2016, the magistrate filed a decision, which included

findings of fact and conclusions of law. The magistrate considered the factors in R.C.

3109.04(F)(1). The magistrate determined that, although appellant “clearly loves his

children, it does not appear he is prepared to have custody of the children.”         The

magistrate concluded appellant appeared uncertain about his living arrangement;

appellant failed to make an effort to find information about the children’s events and

activities; and that, after discontinuing their son’s medication, there was no evidence

appellant made an effort or plan to help their son deal with his ADD/ADHD.            The

magistrate further concluded that appellee selected a residence in a school district

where the children are already involved in activities and have friends; appellee took the

initiative to work with their son’s school to develop a plan to address his challenges; and

appellee had the children involved in activities and knew their friends. Based on her

findings and conclusions, the magistrate recommended that appellee should have

custody of the children. The decision included a schedule for appellant’s parenting

time. Further, the magistrate recommended that appellant should pay child support to

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appellee and that appellee should be entitled to claim the children as exemptions for

income tax purposes.

       {¶6}   Both parties filed objections to the magistrate’s decision. On April 17,

2017, the trial court approved and adopted the magistrate’s decision, stating it had

“reviewed the Magistrate’s Decision, the Objections and Supplemental Objections, the

transcript of the April 26, 2016, hearing and the exhibits admitted into evidence.”

       {¶7}   Appellant filed a notice of appeal. He asserts two assignments of error on

appeal:

              [1.] The trial court abused its discretion when it granted appellee
              custody, [severely] limited [father]-appellant’s parenting time and
              ordered father to pay extracurricular activities in addition to child
              support.

              [2.] The trial court erred when it issued contradictory orders
              regarding which party could claim the children for tax purposes.

       {¶8}   The standard of review in custody cases is whether the trial court abused

its discretion. Brandt v. Brandt, 11th Dist. Geauga No. 2012-G-3064, 2012-Ohio-5932,

¶11. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable,

and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-

Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).           “In determining

whether the trial court has abused its discretion, a reviewing court is not to weigh the

evidence, ‘but must ascertain from the record whether there is some competent

evidence to sustain the findings of the trial court.’” Foxhall v. Lauderdale, 11th Dist.

Portage No. 2011-P-0006, 2011-Ohio-6213, ¶28, quoting Clyborn v. Clyborn, 93 Ohio

App.3d 192, 196 (3d Dist.1994).

       {¶9}   Under his first assignment of error, appellant argues the trial court abused

its discretion when it designated appellee the residential parent, ordered a limited

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parenting schedule for appellant, and ordered that appellee would have final decision

making authority in medical decisions for the children.

       {¶10} In a divorce with minor children where a parent has filed a motion

requesting shared parenting but has not filed a shared parenting plan, “the court, in a

manner consistent with the best interest of the children, shall allocate the parental rights

and responsibilities for the care of the children primarily to one of the parents, designate

that parent as the residential parent and the legal custodian of the child, and divide

between the parents the other rights and responsibilities for the care of the children[.]”

R.C. 3109.04(A)(1). In allocating parental rights and responsibilities, the trial court must

determine that which would be the best interest of the children. R.C. 3109.04(B)(1). In

determining the best interest of the children, R.C. 3109.04(F)(1) states the trial court

“shall consider all relevant factors” and provides a non-exhaustive list of factors.

       {¶11} Depending on the facts before the trial court, all factors may not carry the

same weight or have the same relevance. Brammer v. Brammer, 3d Dist. Marion No. 9-

12-57, 2013-Ohio-2843, ¶41. The trial court has discretion to determine which factors

under R.C. 3109.04(F)(1) are relevant. Id., citing Hammond v. Harm, 9th Dist. Summit

No. 23993, 2008-Ohio-2310, ¶51. The court is not limited to the factors listed in the

statute and may consider any other relevant factors in determining the best interest of

the children. Id. (citation omitted).

       {¶12} Here, the record reflects the court considered the relevant factors under

R.C. 3109.04(F)(1), along with other applicable factors, including the parties’ knowledge

of their children’s friends and activities.   The court’s findings are supported by the

record.




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       {¶13} Appellant maintains there was testimony supporting his argument that he

should have been designated the residential parent and supporting a different visitation

schedule. However, “[t]he appellate court must keep in mind that the trial court is better

equipped to examine and weigh the evidence, determine the credibility of the witnesses,

and make decisions concerning custody.” Terry L. v. Eva E., 12th Dist. Madison No.

CA2006-05-019, 2007-Ohio-916, ¶9 (citation omitted). Because we conclude the record

contains evidence to support the trial court’s findings, we cannot say the trial court

abused its discretion in its determination of the residential parent, the parenting

schedule, and who would make final medical decisions for the children.

       {¶14} Appellant further argues the trial court abused its discretion in ordering

appellant to pay a “large percentage of the children’s extracurricular activities in addition

to child support.” Appellant maintains there were no limits placed on appellee’s ability to

enroll the children in extracurricular activities. Regarding the children’s extracurricular

activities, the trial court’s judgment entry states: “[Appellant] shall pay 43% of the

children’s activity fees and related expenses for those activities upon which the parties

agreed for purposes of the temporary order plus any additional activities upon which the

parties agree.” The trial court’s order clearly states, as a limitation, appellant shall pay

that portion of expenses for activities upon which both parties agree.           Appellant’s

argument is not well taken.

       {¶15} Appellant’s first assignment of error is without merit.

       {¶16} Under his second assignment of error, appellant maintains that “prior to

the [April 26, 2016] hearing, the parties agreed that the tax deductions for the children

would be split with each parent claiming one child. Subsequently * * * the Court granted

Appellee the ability to claim both children for tax purposes.”

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         {¶17} The trial court’s judgment entry states: “[Appellee] shall be entitled to claim

the children as exemptions for income tax purposes, until further order of the court.”

The Divorce Settlement Agreement does not contain any provision that contradicts this

order.    Appellant has failed to direct this court to any portion of the record that

contradicts this order, and this court declines to scour the record in support of evidence

to support his argument. See State v. Wharton, 9th Dist. Summit No. 23300, 2007-

Ohio-1817, ¶43.

         {¶18} Additionally, at oral argument, appellant acknowledged there was no

contradictory order.     He instead argued the trial court’s decision regarding the tax

exemptions was an abuse of discretion because it was not in the best interest of the

children. This argument was not raised in appellant’s brief, and he has provided no

citation to law or the record in support. See App.R 15(A)(7). We, therefore, decline to

consider this issue. See App.R. 12(A)(2); see also Harris v. Nome, 9th Dist. Summit

No. 21071, 2002-Ohio-6994, ¶14 and Andreyko v. Cincinnati, 1st Dist. Hamilton No. C-

020606, 2003-Ohio-2759, ¶20 (“An issue raised during oral argument for the first time

and not assigned as error in an appellate brief is waived.”).

         {¶19} Appellant’s second assignment of error is without merit.

         {¶20} For the foregoing reasons, the judgment of the Geauga County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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