[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, O P I N I O N 

 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 

 
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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 
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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). 
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{¶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). 
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{¶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 
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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 
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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-Ohio519, ¶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 
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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; 
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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 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; 
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(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 
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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 crossexamination 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 
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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: 
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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, 
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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 
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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