[Cite as Smith v. Smith,
2021-Ohio-3016.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
KELLIE A. SMITH C.A. No. 29754
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL TYLER SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR-2019 03 0546
DECISION AND JOURNAL ENTRY
Dated: September 1, 2021
CARR, Judge.
{¶1} Appellant Michael Tyler Smith (“Father”) appeals from the judgment of the
Summit County Court of Common Pleas, Domestic Relations Division. This Court reverses and
remands the matter for proceedings consistent with this decision.
I.
{¶2} Father and Appellee Kellie Ann Smith (“Mother”) were married January 24,
2012. The parties have four children, three daughters and a son. In November 2016, the parties
filed a petition for dissolution. On January 9, 2017, a decree of dissolution was filed, which
incorporated an agreed plan and agreement of parental rights and responsibilities (“Parenting
Plan”) and a separation agreement. Mother was named the legal custodian and residential parent
and Father received liberal parenting time. While Father was not required to pay child or spousal
support, the Parenting Plan included a provision that Mother should maintain the children on
2
Medicaid as long as they were eligible. In addition, Father was required to pay numerous
expenses of the children and Mother.
{¶3} In December 2017, Father filed a motion for relief from judgment. The trial court
denied the motion and Father appealed. See Smith v. Smith, 9th Dist. Summit No. 28961, 2019-
Ohio-129. This Court reversed the judgment of the trial court and ordered it to vacate the
Parenting Plan and separation agreement. See id. at ¶ 19.
{¶4} In March 2019, Mother filed a complaint for divorce under a new case number.1
Ultimately, in December 2019, a hearing was held before the trial court. The trial court issued a
divorce decree on April 21, 2020. Therein, inter alia, the trial court designated Mother the
residential parent and legal custodian of the children and awarded Father parenting time.
{¶5} Father has appealed, raising three assignments of error for our review. Due to
their related nature, the first two assignments of error will be considered together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S AWARD OF SOLE CUSTODY TO MOTHER IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT’S AWARD.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN FAILING TO GRANT AN ALLOCATION
OF PARENTAL RIGHTS AND RESPONSIBILITIES IN THE BEST
INTEREST OF THE MINOR CHILDREN.
1
For unclear reasons, the dissolution was vacated but that is not an issue raised on
appeal.
3
{¶6} Father argues in his first assignment of error that the trial court’s decision naming
Mother the residential parent and legal custodian of the children was against the manifest weight
of the evidence. Specifically, Father maintains the trial court’s findings relative to the R.C.
3109.04(F)(1) best interest factors are not supported by the record. Father asserts in his second
assignment of error that the trial court erred in concluding that Tustin v. Tustin, 9th Dist. Summit
No. 27164, 2015-Ohio-3454, ¶ 36-41, required it to allocate parental rights and responsibilities to
only one party.
{¶7} “A trial court possesses broad discretion with respect to its determination of the
allocation of parental rights and responsibilities, and its decision will not be overturned absent an
abuse of discretion.” Kokoski v. Kokoski, 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, ¶
26. Nonetheless, as to the trial court’s findings with respect to the statutory best interest factors,
“[t]his Court has held that what is in the best interest of a child is primarily a question of fact that
should be reversed only if it is against the manifest weight of the evidence.”
Id. “When
reviewing the manifest weight of the evidence in a civil case, this Court ‘weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’”
Id., quoting Eastley v. Volkman,
132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20, quoting Tewarson v.
Simon,
141 Ohio App.3d 103, 115 (9th Dist.2001). Further, this Court must affirm individual
factual conclusions of the trial court if they are supported by competent, credible evidence. See
Harrison v. Lewis, 9th Dist. Summit No. 28114,
2017-Ohio-275, ¶ 9.
{¶8} R.C. 3109.04(A) provides:
In any divorce, legal separation, or annulment proceeding and in any proceeding
pertaining to the allocation of parental rights and responsibilities for the care of a
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child, upon hearing the testimony of either or both parents and considering any
mediation report filed pursuant to section 3109.052 of the Revised Code and in
accordance with sections 3127.01 to 3127.53 of the Revised Code, the court shall
allocate the parental rights and responsibilities for the care of the minor children
of the marriage. Subject to division (D)(2) of this section, the court may allocate
the parental rights and responsibilities for the care of the children in either of the
following ways:
(1) If neither parent files a pleading or motion in accordance with division (G) of
this section, if at least one parent files a pleading or motion under that division but
no parent who filed a pleading or motion under that division also files a plan for
shared parenting, or if at least one parent files both a pleading or motion and a
shared parenting plan under that division but no plan for shared parenting is in the
best interest of the children, 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, including, but not
limited to, the responsibility to provide support for the children and the right of
the parent who is not the residential parent to have continuing contact with the
children.
(2) If at least one parent files a pleading or motion in accordance with division
(G) of this section and a plan for shared parenting pursuant to that division and if
a plan for shared parenting is in the best interest of the children and is approved
by the court in accordance with division (D)(1) of this section, the court may
allocate the parental rights and responsibilities for the care of the children to both
parents and issue a shared parenting order requiring the parents to share all or
some of the aspects of the physical and legal care of the children in accordance
with the approved plan for shared parenting. If the court issues a shared parenting
order under this division and it is necessary for the purpose of receiving public
assistance, the court shall designate which one of the parents’ residences is to
serve as the child’s home. The child support obligations of the parents under a
shared parenting order issued under this division shall be determined in
accordance with Chapters 3119., 3121., 3123., and 3125. of the Revised Code.
{¶9} In determining what is in the best interest of the children, the trial court shall
consider all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(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;
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(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;
(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;
(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.
{¶10} While a full summary of the proceedings is unnecessary, it is important to have an
overview of the parties’ interactions in order to understand that allocating parental rights and
responsibilities in this case was not a straightforward or simple task. Unfortunately, as noted by
the trial court, the record reveals that the parties have a long and continued history of acrimony.
6
The parties have been unable to effectively communicate or reach agreements. The guardian ad
litem testified that the parties were not capable of shared parenting because of their “intense
animosity towards each other.” The guardian ad litem recommended parallel parenting, which
she described as one parent being responsible for one section of the children’s care and the other
parent being responsible for another section of the children’s care. The guardian ad litem
recommended that Mother be responsible for educational decisions and Father be responsible for
medical decisions. The guardian ad litem recommended “two, two, five parenting time[.]”
Notably, the guardian ad litem did not recommend either parent be the residential parent of the
children. The guardian ad litem believed it was important for both parents to be part of the
children’s lives and did not think either parent should have full custody.
{¶11} The guardian ad litem testified that Father had complied with a substance abuse
assessment and was found not to have any issues. However, both parents have adjustment
disorder with anxiety, which the guardian ad litem described as being normal during a divorce.
While the parties initially tried to engage in co-parenting therapy, the therapist terminated the
first session after only a short period of time due to Mother’s behavior.
{¶12} The record discloses evidence that both parents engaged in inappropriate behavior
with respect to the other parent. Mother was convicted of disorderly conduct for actions she took
to interfere with Father’s business, and Mother’s probation was subsequently extended due to her
conduct. Mother also made reports to Children’s Services about Father, which were ultimately
determined to be unsubstantiated. In addition, the guardian ad litem expressed concerns about
Mother’s credibility; however, the trial court did not indicate whether it found Mother credible.
{¶13} Mother described concerning incidents involving Father. In March 2017, after
Father failed to come to Mother’s house to pick up the children, Mother went to Father’s
7
residence and discovered Father passed out on the floor next to an empty beer can and packets of
tobacco. The oldest child was in the room with him. When Father woke up, he ripped the phone
from Mother’s hand and threw her out of the residence while the child was watching. This
incident led to Father being limited to supervised parenting time. In April 2019, Father was
authorized to have unsupervised parenting time again.
{¶14} In June 2017, Father came over to Mother’s house to do yard work. Mother
indicated he was slurring his words and appeared to be drunk. Father became upset and threw
the weedwhacker in front of the oldest child. While all the children were around, he began
swearing at Mother very loudly. Father then told Mother he was going to kill her. A neighbor
heard and called the police. While Mother did not want charges filed, the State proceeded to
prosecute Father. Father was charged with domestic violence but pleaded guilty to menacing.
{¶15} A neighbor of Mother’s and Mother’s father also testified. They testified that on
separate occasions they each heard at least one of the children say that Father had threatened to
kill Mother. Mother’s sister also testified that, in 2015, while Mother was pregnant with the
youngest child, Father put his hands around Mother’s neck while she was on the phone with
Mother’s sister. Father then proceeded to punch the wall. Father denied that he ever threatened
to kill Mother.
{¶16} Both parties asserted that the other parent was not completely cooperative in
facilitating phone contact with the parent then not in possession of the children. Further, Father
relayed instances in which Mother prevented him from being in the room for the children’s
medical appointments; Mother maintained she was concerned about Father’s prior abusive
behavior. The parties also provided differing versions of events with respect to whether the
8
children missed activities while in Father’s care and with respect to whether Father timely made
support payments.
{¶17} Notwithstanding the behavior of the parents, the guardian ad litem indicated that
the children were happy, loving, and doing well in school. The children expressed the desire to
spend time with both parents and did not indicate fear of either parent.
Best Interest Factors
{¶18} While Father challenges all of the trial court’s finding with respect to the best
interest factors, this Court will limit its focus to the ones that it views as particularly concerning
given the evidence in the record.
{¶19} Those findings deal with the factors in R.C. 3109.04(F)(1)(f) and
3109.04(F)(1)(g). R.C. 3109.04(F)(1)(f) is the factor that examines “[t]he parent more likely to
honor and facilitate court-approved parenting time rights or visitation and companionship
rights[.]” The trial court determined that “[Mother] is less likely than [Father] to interfere with
the other parent’s parenting time.” It is unclear from the record what prompted the trial court to
make this finding. The trial court did not express any concerns about the parties’ credibility in
the judgment entry. From an objective review of the record, it appears that both parties have
difficulty at times facilitating parenting time. Mother testified that Father does not make the
children available for the scheduled call when they are in his care. However, Father testified that
when he tries to talk to the children when they are in Mother’s care, Mother will not let the
children talk to him alone and makes comments during his calls. Because of Mother’s
interference, Father has indicated that he has stopped trying to call the children. The guardian ad
litem’s report evidences that Mother frequently spoke with the children while at Father’s house
and that Father did not call as often. Father also reported that Mother kept Father from being in
9
the doctor’s office with her at medical appointments. Mother did not appear to dispute this;
instead, commenting that Father was welcome in the waiting room and to see the doctor when
Mother was not in the room. Mother expressed concerns about Father based upon prior alleged
abuse. There was also evidence that Mother would not let Father move his weeknight parenting
night so that Father could attend a court-mandated program. Father had to seek court
intervention to move the parenting night. Given the foregoing, we cannot say that the record
supports the trial court’s finding with respect to R.C. 3109.04(F)(1)(f).
{¶20} R.C. 3109.04(F)(1)(g) instructs the court to examine “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[.]” With respect to
this factor, the trial court concluded that “[Mother] testified that [Father] was erratic in making
his support payments under the parties’ separation agreement.” This finding is especially
troubling to this Court. The parties’ decree of dissolution, which included a parenting plan and
separation agreement, listed Father’s child support obligation as zero dollars. No child support
worksheet was attached to the decree of dissolution contained in this Court’s record. Instead, the
decree of dissolution provided that Father would pay numerous expenses of the children and
Mother. The record before this Court does not support the conclusion that those expenses were
part of a child support order. Thus, this finding by the trial court is erroneous. The trial court
should not have characterized any failure by Father to make payments required under the decree
of dissolution as evidence that Father failed to make child support payments. See Severns v.
Foster, 3d Dist. Marion No. 9-18-21, 2019-Ohio-909, ¶ 37 (concluding that R.C.
3109.04(F)(1)(g) was inapplicable when there was no child support order).
10
Tustin v. Tustin
{¶21} In the judgment entry, the trial court stated that it had “considered the
recommendation of the Guardian ad Litem for ‘parallel co-parenting.’ Given the parties’ history
of acrimony, the Court does not accept the Guardian ad Litem’s recommendation.” (Emphasis
omitted.) In so doing, the trial court cited only to Tustin.
{¶22} As noted above, the guardian ad litem recommended parallel parenting and
described it as one parent being responsible for one section of the children’s care and the other
parent being responsible for another section of the children’s care. For example, in this context,
the guardian ad litem recommended that Mother be responsible for educational decisions for the
children and Father be responsible for the medical decisions. The guardian ad litem also did not
recommend that either parent be the residential parent and legal custodian of the children. While
the trial court was required to comply with the dictates of R.C. 3109.04 in the allocation of
parental rights and responsibilities, it appears that the trial court believed that Tustin imposed a
barrier to allocating any rights and responsibilities to Father when it named Mother the
residential parent and legal custodian. Because this is a misunderstanding of this Court’s
precedent, we conclude that the trial court erred with respect to this finding as well.
{¶23} In Tustin, “[t]he domestic relations court considered R.C. 3109.04 in allocating
parental rights and responsibilities for the care of the child, and designated Wife as the
residential parent and legal custodian of the child. The trial court further ordered that ‘[t]he
parties shall jointly make decisions which concern the health and safety of their child except in
the case of an emergency.’” Tustin, 2015-Ohio-3454, at ¶ 39. After reciting the language of
R.C. 3109.04(A), this Court concluded:
By designating Wife as the residential parent and legal custodian of the child, yet
ordering that Husband shall have the right to share in some aspects of the physical
11
and legal care of the child, the trial court effectively created a hybrid allocation of
parental rights and responsibilities in contravention of the language of the statute.
This Court can find no authority to support such an allocation of parental rights
and responsibilities. In fact, the Ohio Supreme Court has recognized that
“parental rights and responsibilities reside in the party or parties who have the
right to the ultimate legal and physical control of a child.” Fisher v. Hasenjager,
116 Ohio St.3d 53,
2007-Ohio-5589, ¶ 22. As the trial court designated Wife as
the residential parent and legal custodian of the child, necessarily granting her the
physical and legal control of the child, it erred in contravention of R.C. 3109.04
by also awarding Husband joint authority over some aspects of the physical and
legal care of the child.
Tustin at ¶ 41.
{¶24} Standing alone, this case might at first glance seem to support the trial court’s
judgment. However, this Court later distinguished Tustin in Sejka v. Sejka, 9th Dist. Medina No.
15CA0091-M, 2017-Ohio-2.
{¶25} In Sejka, the Mother, who was the residential parent and legal custodian of the
parties’ child, challenged the trial court’s post-decree decision granting medical decision-making
authority to Father. Id. at ¶ 2, 7, 9. Mother argued that Tustin applied to the facts of the case
and, thus, Father could not be granted medical decision-making authority. Sejka at ¶ 20. Father
argued that Tustin could be distinguished as the parties in Tustin had a hybrid parenting plan;
whereas in Sejka, Father was only allocated sole authority over medical decisions.
Sejka at ¶ 21.
In agreeing with Father’s position, this Court stated:
R.C. 3109.04(A) provides that if one parent is allocated the primary parental
rights and responsibilities for the care of a child, that parent is designated the
residential parent and legal custodian of the child. Fisher[], 116 Ohio St.3d 53,
2007-Ohio-5589, [at] ¶ 22. ‘Therefore, the residential parent and legal custodian
is the person with the primary allocation of parental rights and responsibilities.
When a court designates a residential parent and legal custodian, the court is
allocating parental rights and responsibilities.’ Id. The statute further provides
that the court, in a manner consistent with the best interest of the child, shall
divide the other rights and responsibilities for the care of the child between the
parents. That is what the court did in this case.
(Emphasis omitted.) Sejka at ¶ 22.
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{¶26} This Court noted that the trial court put limitations on Father’s authority, which
“restrain[ed] the Father from unilaterally making medical decisions for the child without the
Mother’s input.” Sejka at ¶ 23, 28. “Thus, while Father may have [had] exclusive medical
decision making authority over the minor child, the court’s conditions limit[ed] that authority
and g[a]ve Mother broad access to facilitate the child’s medical needs.” Id. at ¶ 28. Given the
foregoing, we concluded that “the trial court did not err as a matter of law or abuse its discretion
in determining that Father was to have final medical decision-making authority over the minor
child.” Id. at ¶ 29.
{¶27} Accordingly, it is possible for one parent to be the residential parent and legal
custodian and for the other parent to have an enumerated area of responsibility with respect to
the children without it constituting the hybrid allocation of parental rights and responsibilities
that this Court concluded in Tustin violated the statute. See Sejka at ¶ 21-22;
Tustin at ¶ 41. As
it appears from the judgment entry that the trial court concluded that it was unable to allocate any
area of authority to Father after naming Mother the residential parent and legal custodian, we
conclude that the trial court erred.
{¶28} This Court takes no position on the allocation of parental rights and
responsibilities at this time. We only conclude that some of the trial court’s findings with respect
to the best interest factors are not supported by the record. The trial court continues to maintain
discretion in the allocation of parental rights and responsibilities. See Kokoski, 2013-Ohio-3567,
at ¶ 26.
{¶29} Father’s first two assignments of error are sustained.
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ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN FAILING TO DEAL WITH THE PARTIES’
INCOME TAX FILINGS AFTER THE DECREE OF DISSOLUTION, WHICH
IT DISMISSED.
{¶30} Father asserts in his third assignment of error that the trial court failed to address
the parties’ income tax filing statuses for the period of time subsequent to the dissolution in
January 2017 up until the new decree of divorce was entered. In his proposed findings of fact,
Father sought to have the parties file amended returns for those years to reflect a status of
married filing separately due to the vacation of the decree of dissolution. Father also requested
that the returns be amended so that each party would claim two children, instead of Mother
claiming all four.
{¶31} The trial court did not address this issue in the judgment entry. While the trial
court stated that “[a]ny other motions before this Court not specifically addressed are denied[,]”
Father’s request to order amended tax returns was not part of a motion; instead, it was part of
what he sought pursuant to the divorce proceedings. Thus, it appears that the trial court
neglected to resolve this issue. As this Court is a reviewing court, we decline to resolve this
issue in the first instance. See, e.g., In re A.S., 9th Dist. Summit No. 29472, 2020-Ohio-1356, ¶
24.
{¶32} Father’s third assignment of error is sustained to the extent he has argued the trial
court erred in failing to address the issue.
III.
{¶33} Father’s assignments of error are sustained to the extent discussed above. The
judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is
reversed.
14
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
LESLIE S. GRASKE, Attorney at Law, for Appellant.
SILAS M. PISANI, Attorney at Law, for Appellee.
