[Cite as Bohannon v. Lewis , 2022
- Ohio
- 2398.]



## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ROBERT BOHANNON II , Plaintiff

- Appell ee / Cross

- Appellant

VS
.

NYSHIA LEWIS (f

. k

. a . BOHANNON) Defendant

- Appellant / Cross

- Appellee

. :

:

:

:

:

:

: APPEAL NO S . C

- 210316

C

- 210332 TRIAL NO. DR

- 1801471

O P I N I O N.

Appeal From: Hamilton County Court of Common Pleas , Domestic Relations

Division Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: July 1 3 , 2022
Cordell Law, LLP , and Samuel D. Patry , for Plaintiff

- Appellee /Cross

- Appellant , DeBra Law, LLC

, and Ryan L. DeBra, for Defendant

- Appellant /Cross

- Appellee

.OHIO FIRST DISTRICT COURT OF APPEALS

2 C ROUSE , Judge. 

### {¶1} Defendant

- appellant and cross

- appellee Nyshia Lewis (“mother”) appeals th e judgment of the Hamilton County Court of Common Ple as, Domestic Relations
Division , raising two assignments of error for our review. Plaintiff

- appellee and cross

appellant Robert B ohannon II (“father”) cross

- appeals from the same judgment , raising two a ssignments of error of his own

. For the reasons that follow, we overrule the assignments of error and affirm the judgment of the trial court. Facts and Procedure 

### {¶2} Mother and father were married in 2009 and have four minor children together : one son a nd th ree daughter s . Father filed a complaint for divorce in 2018. A decree of divorce was entered in 2019, which named mother residential parent and legal custodian of all four children. Father had paren ting time on alternating weekends from Friday after sch ool or daycare until Monday mor ning, and on Wednesday evenings, in addition to holid ay and extended parenting time in line with the court’s standard parenting order. Father was also ordered to pay child support in the amount of $1,231. 22 per month

. 

### {¶3} While there has been nearly continuou s conflict in this case since the complaint for divorce was filed, the procedural events relevant to th ese appeal s began o n May 1 5 ,
2020 , when father filed a motion to modify parenting time. On the same day, he filed a “moti on to show cause (contempt),” alleging that mother denied him parenting time and withheld the children’s medical information. On June 9, 2020, mother filed a “motion f

or contempt/back child support,” 1 alleging father had been harassing her and

1 While the motion references child support in its title, mother did not reference the child

- support issue in the body of her motion.OHIO FIRST DISTRICT COURT OF APPEALS

3 not abiding by the court order for parenting time. On July 28, 2020, father filed a motion for an emergency hearing and temporary custody, and an “amended motion to modify paren ting time

— motion to reallocate parental rights and responsibilities,” asking the court to name him the residential parent and legal custodian of the children

. 

### {¶4} Shortly after the motions were filed, the court ordered a full parenting investigation

. Patrick Magill, a social worker, conducted the investigation and issued a report that recommende d that mother maintain her status as residential parent and legal custodian of the children. It also recommended increasing father’s parenting time by giving him four additional overnights

— Wednesdays and Thursdays following his weekends with the children

— every four weeks. The report discussed the acrimonious nature of mother and father’s relationship and noted that the children are “undoubtedly experiencing the effect s of their parents’ conflicts. ” The report recommended that mother “should get the child ren into counseling as soon as possible.” 

### {¶5} The court held a two

- day hearing on these issues on April 13, 2021 , and April
27, 2021. Mother and father each testified on their own behalf. The court also heard testimony from the social worker , along with fath er’s wife, and a parent who had observed the family’s interactions at youth football games. 

### {¶6} In an April 28, 2021 entry, the cou rt grant ed in part father’s amended motion to modify parenting time

— motion to reallocate parental rights and responsibilities; and denied the other motions. The court ordered that mother remain the residential and custodial parent, but it increased father ’s parenting time to “alternating weeks from Friday after school or daycare * * * until the following Friday,” with no extendedOHIO FIRST DISTRICT COURT OF APPEALS

4 time. The court also deviated father’s child

- support obligation down to $0 per month in light of the equal share of parenting t ime. 

### {¶7} Mother timely appealed, and father cross

- appealed. 

### {¶8} In two assignments of error, mother contends that the parenting

- ti me modification is not in the best interest of the children, and that the child

- support deviation was an abuse of discretion. 

### {¶9} I n two assignments of error, father contends that the court erred by denying his motion to show cause, and in denying in his moti on to reallocate custody. 

### {¶10} For ease of discussion, we will address these assignments out of order.

Father’s Seco nd Assignment of Error: Child Custody 

### {¶11} In his second assignment of error, father contends that the trial court’s denial
of his motion to reallo cate custody was inconsisten t with the court’s findin gs because the manifest weight of the evidence support ed each of the necessary factor s under R.C. 3109.04(E)(1)(a)

. 

### {¶12} A parent’s motion to modify a parenting decree is governed by R.C. 3109.04(E)(1)(a). T he statute provides that the court shall not modify a decree unless: (1) there has been a change in circumsta nces since the prior decree, based on facts that have arisen since the prior decree or were unknown by the court at the time of the prior decree; (2) the modification is necessary to serve the best interest of the children; and (3) one of the conditions in R.C. 3109.04(E)(1)(a)(i)

- (iii) is satisfied

. Saylor v. Saylor 1st Dist. Hamilton No. 190463, 2020

- Ohio

- 3647, ¶ 12, citing R.C. 3109.04(E)(1)(a). The parties agree that the relevant condition under (3) is “the harmOHIO FIRST DISTRICT COURT OF APPEALS

5 likely to be caused by a change in envi ronment is outweighed by the advantages of the change of environment to the child.” 

### {¶13} “R.C. 3109.04(E)(1)(a) creates a rebuttable presumption that r etaining the residential parent designated by the prior decree is in the child’s best interest.” Rohrbaugh v. Rohrbaugh , 136 Ohio App.3d 599, 604

- 605, 737 N.E.2d 551 (7th Dist.2000)

. 

### {¶14} “ ‘Custody issues are some of the most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must have wide latitude in considering all the evidence before him * * * and such a decision must not be reversed absent an abuse of discretion

. ’ ” Saylor at ¶ 10, quoting Kane v. Hardin , 1st Dist. Hamilto n No. C

180525, 2019

- Ohio

- 4362, ¶ 6, quoting Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). An abuse of discretion “implies that the trial court’s decision was unreasonabl e or arbitrary.” Kane at ¶ 6, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

### {¶15} “ ‘A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court.’ ” In re E.R., 1st Dis t. Hamilton No. C

- 180615, 2019

- Ohio

- 4491, ¶ 5, q uoting Davis at 419
. “The reason for this standard of review is that the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translat e well on the written page.” Davis at 418. In this way, we “should be guided by the presumption that the trial court’s findings were indeed correct.” Miller v. Miller , 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). 

### {¶16} First, a change in circumstances must be f ound. “The change ‘ must be a change of substance, not a slight or inconsequential change. ’ ” In re E.R

. at ¶ 6, quoting DavisOHIO FIRST DISTRICT COURT OF APPEALS

6 at 418

. The change does not need to be “substantial,” but it “must be substantiated, continuing, and have a materially adverse e ffect upon the child.” Id. , quoting Davis at 417. A change in circumstances can be demonstrated by a “custodial parent’s interference with a noncustodial parent’s visitation, and the parents’ inability to communicate and cooperate.” Id. at ¶ 7 (collecting cases). This requirement is intended to “ ‘spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could pr ovide the children a “ better ” environme nt. ’ ” Souders v. Souders , 1st Dist. Hamilton No. C

- 210469, 2022

- Ohio

- 1953 , ¶ 7, citing Davis at 418, quoting Wyss v. Wyss , 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10 th Dist.1982). 

### {¶17} In its entry, the court did not make an explicit finding about a change in circumstances, though it made several findings relevant to the determination , including that “[m]other has wit hheld medical information from F ather that could have serious repercussions during his parenting time and could have negatively impacted the chil d. ” The court further found that “mother has r outinely denied and thwarted Father his parenting time. The excuses for these incidents are so egregious, it appears that mother believes there are no repercussions to her behavior. ” 

### {¶18} Testimony was presented about several instances where medical informat ion was not shared with father a fter one of their child ren was injured, including: an ankle injury, a dog bite, a concussion, and a chipped tooth. Mother admitted that she did not share discharge instructions with father about the concussion, but testifie d that she did share information about the ankle injury and the dog bite. Mother also disputed portions of the chipped

- tooth incident, testifying that she had an appointment scheduled to address the issue. M oreover, testimony was presentedOHIO FIRST DISTRICT COURT OF APPEALS

7 about mother d enying father his parenting time, though father also admitted missing opportunities for parenting time in the past. 

### {¶19} Father argues that this evidence sufficiently demonstrate s a change in
circumstances. While we do not have the benefit of an explicit determination from the trial court on this factor , we assume that the court did find a change in circumstances based on its findings of fact and the fact that the court’s entry concentrated on the best

- intere st fa ctors. See Nigro v. Nigro , 9th Dist. Lorain No. 04CA008461, 2004
- Ohio

- 6270, ¶ 6 (“[W] e find it inappropriate to require the court to use the exact phrase

‘ change of cir cumstances.’ While the better practice would be for a court to explicitly find a ch ange of circumstances before delving into the issue of the best interests of the child, we will affirm a decision where the factual findings of the court support a finding of changed circumstances. Explicit language is preferable, but not necessary. ”). 

### {¶20} A fter finding a change in circumstances, the court must determine whether a modification is in the best interest of the children . “[T]he court shall consider all relevant factors, including, but not limited to : ” (a) The wishes of the child’s parents regard ing t he child’s care; (b) If the court has interviewed the child in chambers * * * 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 expres sed t o 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;OHIO FIRST DISTRICT COURT OF APPEALS

8 ( e) Th e 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 c hild 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 * * * has been convicted of or pleaded guilty to any criminal offense invo lving any act that resulted in a child being an abused child or a neglected child; * * * 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; (i) Whether the residential parent or one of the parents su bject 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, outsid e this state. R.C. 3109.04(F)(1)

. 

### {¶21} In its entry, the court set forth findings of fact regarding all of the best

- interest factors listed in R.C. 3109.04 (F)(1). The court also included the recommendation of the social worker, along with addit ional findings ab out the volatile nature of motherOHIO FIRST DISTRICT COURT OF APPEALS

9 and father’s relationship. The court noted that “Mother’s intera ctions with the children around Father show that she is not looki ng out for their best interests. ” However, the court also noted that “Father is not consist ent in exercising his regular parenting time 2 [and] creates just as much drama at interactions as Mother.” The court found that, “ [t] hese children should have and are desperate for two parents who act like adults instead of spoiled children unable to refr ain from creating drama after drama.” We find that t he testimony presented at trial supports these findings. 

### {¶22} While the court did not explicitly state that father failed to rebut the presumption that retaining the residential pare nt designated by the pri or decree is in the child’s best interest, that is what the court ultimately found by denying father’s

m otion to r eallocate p arental r ights and r esponsibilities

. 

### {¶23} Father argues that the court erred in this regard because the best

- interest findings of the co urt and the social worker favor f ather receiving custody of the children. 

### {¶24} However, we find that the court’s best

- interest findings and the report of the social worker demonstrate that this case is a close call. While the findings and report support fathe r’s contention that his communication has been more effective and that he is more invested in taking steps to addr ess the mental health of the children, it also supports the determination that mother is a dedicated parent who has, in the words of the socia l worker, “provided the lion’s share of care for the children.” In addition, the findings and report demonstrate that while mother had denied parenting time in the

2 F ather testified about miss ing approximately four opportunities for weekday parenting time due to his work schedule . M o ther testified about an incident where a dispute about the pickup location led to father not picking the children up, and another occasion where he returned the ch ildren earl ier tha n planned

.OHIO FIRST DISTRICT COURT OF APPEALS

10 past, fath er had not been consistent in exercising his allotted parenting time

. W hile fath er has raised concerns regarding mother’s criminal history, father testified about a pending criminal matter of hi s own at the time of trial. And while father raised concerns about mother’s behavior around the children, mother testified that father sent h er a photo of himself holding a gun to his head, which she alleged he had shown to their son. Moreover, father te stified about the close quarters in his home, explaining that when his four children stay with him, there are a total of nine children sleepin g in his four

- bedroom home

. 

### {¶25} This court cannot reverse a decision simply because we may have decided differently. Rather, we must only determine whether the trial court abused its discretion. Not only did the trial court include numerous findings of fact in its entry, but it also considered the report of the social worker and two days’ worth of testimony. The recor d clearly demonstrates that the court considered each of the necessary best

- interest factors and the court’s findings were supported by the re cord

. While t he

court certainly made its frustration with the parents’ behavior clear in its entry , i t neverthele ss carefully analyzed and weighed the best

- interest factors and ultimately found that mother should rem ain the sole residential parent and leg al custodial parent of the minor children. We cannot say the court’s decision was unreasonable or arbitrary

. 

### {¶26} While the court did not make a specific determination regarding each of the three factors under R.C. 3109.04(E)(1)(a), it was not an abuse of discr etion for the court to deny father’s motion to reallocate custody. Because the court’s decision is well

- supported in the record, and in light of the “rebuttable presumption” in favor ofOHIO FIRST DISTRICT COURT OF APPEALS

11 the residential parent retaining custody of the children, we overrule father’s second assignment of error.

Mother’s First Assignment of Error: Parenting Time 

### {¶27} In her first assignment of error, mother contends that, “[ t ] he trial court decision allocating parenting ti me was not consistent with the b est interest of the
minor c hildren and Ohio Revised Code Section 3109.04. ” We review the trial court’s judgment on modifications to parenting time for an abuse of discretion. Souders v. Souders, 1st Dist. Hamilton No. C

- 210469, 2022

- Ohio

- 1953, ¶ 6, citing Cwik v. Cwik , 1st Dist. Ha milton No. C

- 090843, 2011

- Ohio

- 463, ¶ 42

. “The trial court has broad discretion in modifying visitation rights .” In re Ross , 154 Ohio App.3d 1, 2003

- Ohio

4419, 796 N.E.2d 6, ¶ 5 ( 1st Dist.) , citing Appleby v. Appleby , 24 Ohio St.3d 39, 492
N.E. 2d 831 (198 6)

. 

### {¶28} As an initial matter, we note that t he trial court and the parties rely on R.C. 3109.04(E)(1)(a) for the parenting

- time analysis . However, “w hen one parent is the legal custodian, modifications to visitation or parenting time are not governed by R.C. 3109.04(E)(1)(a). Rather, such modifications are subject to R.C. 3109.051.” Hartman
v. Hartman , 8th Dist. Cuyahoga No. 107251, 2019

- Ohio

- 1637, ¶ 16; Braatz v. Braatz, 85 Ohio St.3d 40, 43, 706 N.E.2d 1218 (1999) , paragraph one of the syllabus ( holding the “[m]odification of visitation rights is governed by R.C. 3109.051”). 

### {¶29} Therefore, mother’s first assignment of error is properly analyzed under R.C. 3109.051 because a modification to visitation or parenting time for a noncustodial parent, father, is at iss ue.OHIO FIRST DISTRICT COURT OF APPEALS

12 

### {¶30} In determining whether to modify parenting time, a change in circumstances is not required. 3 Braatz at paragraph two of the syllabus. Rather, the court must determine whether the modification is in the children’s best interest, considering the best

- interest factors s et forth in R.C. 3109.051(D)

. In re Ross, at ¶ 5 , citing Braatz at paragraph two of the syllabus. The se best

- interest factors include , in relevant part : (1) The prior interaction and interrelationships of the child with the child’s pare nts, siblings, and other persons related by consanguinity or affinity, * * * ; (2) The geographical location of the residence of each parent and the distance between those resid ences, * * * ; (3) The child’s and parents’ available time, including, but not li mited 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 chil d’s adjustment to home, school, and community; (6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child * * * ; (7) The health and safety of the child; (8) The amount o f time that will be available for the child to spend with siblings; (9) The ment al and physical health of all parties;

3 Likewise, mother’s argument that there was no evidence about t he harm caus ed by the change of environment is irrelevant because R.C. 3109.051 does not include this consideration.OHIO FIRST DISTRICT COURT OF APPEALS

13 (10) Each parent’s willingness to reschedule missed parenting time and

to facilitate the other parent’s parenting time rights, and with r espect to

a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation; (11) In relation to parenting time, whether 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 neglect ed child; * * *;

* * * (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; (14) Whether either parent has established a residence or is planning to establish a residence outside this state;

* * * (16) Any other factor in the best interest of the chi ld.
R.C. 3109.051(D). 

### {¶31} While the trial court specifically analyzed the best

- interest factors li sted in R.C. 3109.04(F)(1) rather than R.C. 3109.051(D), courts have held that the factors set forth in the two sections are quite similar and reliance on the factors in the wrong section is harmless error when the trial court’s decision demonstrates consi deration of the relevant f

actors. See , e.g. , Campana v. Campana , 7th Dist. Mahoning No. 08 MA 88,
2009
- Ohio

- 796, ¶ 3
- 4 ( D espite the fact that the trial court only cited and reviewed the best

- interest factors listed in the custody statute (R.C. 3109.04(F)(1 ) ) , the appellateOHIO FIRST DISTRICT COURT OF APPEALS

14 court he ld that “ because of the detail of the court's entry, ” it could “ conclude that the court considered a multitude of facts that coincide with all of the pertinent best interest factors applicable to visitation modifications as contai ned in R.C. 3109.051(D) .”) ; In re Troyer , 188 Ohio App.3d 543, 2010

- Ohio

- 3276, 936 N.E.2d 102, ¶ 36 (7th Dist.) (holding trial court’s reliance on R.C. 3109.04(F)(1) factors to be harmless where trial court’s decision “evince[d] consideration of the releva nt factors”); Braden v. Br aden , 11th Dist. Portage No. 2006

- P

- 0028, 2006

- Ohio

- 6878 , ¶ 38 (holding that the two sets of factors are “essentially the same” and affirming the parenting

- time decision of the trial court despite its reference to R.C. 3109.04 bec ause the pertinent factors were still considered). 

### {¶32} In its entry , the court considered the following best

- interest factors: the wishes of the paren ts ; the parents’ intent to relocate ; a child

- support arrearage; the ages of the children; the children’s rela tionship with their siblings and family; the children’s adjustment to home, school, and community; the mental and physical health of the parties; mother’s denial of parenting time an d withholding of medical information ; and mother’s willingness to comply w ith the court’s orders in the future

. While the court made these best

- interest findings under R.C. 3109.04(F)(1) , these findings are also pertinent to a proper best

- interest analysi s under R.C. 3109.051(D). 

### {¶33} The court also incorporated the summary and reco mmendation of the social worker into its entry. In addition to recommending an increase to father’s parenting time, the summary and recommendation included discussion about the mental and physical health of the children pursuant to R.C. 3109.051(D)(7). Se e Braden at ¶ 45

- 47 (relying on a home

- study evaluation and guardian ad litem reports to supply additional findings not explicitly mentioned by trial court). T he court did not includeOHIO FIRST DISTRICT COURT OF APPEALS

15 findings under R.C. 3109.051(D)(2), (3), (8), but both parties testifie d at length about the pickup arrangements and work schedules, pursuant to R.C. 3109.051(D)(2) and (3). And R.C. 3109.051(D) (8) is largely irrelevant to this case as the schedul e provides that the children always remain together. Moreover, “[i]t is well

- e stablished that a laundry list of the factors is not required.” Campana at 56. 

### {¶34} Mother agrees that the testimony demonstrated that the parties had a strained relationship. However, she claims that the evidence did not support such a drastic change in the parenting

- time schedule, especially when the court “placed the blame equally upon both Mother and Father.” 

### {¶35} While we agree that the court found both mother a nd father to be at fault for their volatile relationship, the court also found that mother was de nying parenting time and withholding medical information from father . Moreover, in line with the social worker’s recommendations, father testified that he has taken steps to address the children’s mental health, and was working to improve his coparenting skills. All of this evidence was relevant in supporting the court’s determination that it is in the children’s best interest to increase father’s parenting ti me. 

### {¶36} We do not hold that the factors in R.C. 3109.051(D) and 3109.04(F)(1) are always interchangea bl e, but the record demonstrates that the court considered the pertinent factors for this case listed in R.C. 3109.051(D)

. 

### {¶37} Based on the evidence presented, the court’s decision to increase father ’s parenting time was not an abuse of discretion. Mother’s first assignment is overruled.

Mother’s Second Assignment of Error: Child Support 

### {¶38} In her second assi gnment of error, mother argues that the court erred by deviating f

ather’s child

- support obligation by 100 percent because it was notOHIO FIRST DISTRICT COURT OF APPEALS

16 supported by competen t a n d credible evidence and was against the manifest weight of the evidence. She also contends the trial court erroneously “imputed the same figures used in the 2019 Decree of Divorce for purposes of calculating child support in the 2021 matter.” 

### {¶39} We wil l not disturb a trial court’s decision regarding child support absent an abuse of discretion. Rummelhoff v. Rummelhoff , 1st Dist. Hamilton Nos. C

- 210112 and
C

- 210176, 2022

- Ohio

- 1224, ¶ 18, quoting Rummelhoff v. Rummelhoff , 1st Dist. Hamilton No. C

- 190355, 2020
- Ohio

- 2928, ¶ 30, citing Booth v. B ooth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). 

### {¶40} First , a review of the record and of the child

- support worksheet reveals that that the income was correctly attributed to each party

. Mother’s income sources matc h her 2020 Form W

- 2 and 2020 Form 1099 exactly. F ather’s income is supported by his 2020 end

- of

- year paystub and Form W

- 2 after taking into account deductions for nonrecurring income, which father testified about. See R.C. 3119.01(C)(12)(e) and 3119.01(C) (13) (stating that gross income does n ot include nonrecurring income where nonrecurring income is income received for less than three years that the parent does not expect to receive on a regular basis); Arcuri v. Arcuri , 1st Dist. Hamilton No.
C

- 990802, 2 000 Ohio App. Lexis 5081, *12 (Nov. 3, 2000) ( holding that nonrecurring income was correctly excluded from gross income “ because nonrecurring cash flow cannot be considered gross income”). 

### {¶41} Next, mother contends that the “court’s decision to deviate Father ’s child support obligation by 100% wa s not supported by competent and credible evidence.” 

### {¶42} After determining the guideline support amount, the court may deviate from the guideline amount if it determines that the amount “would be unjust orOHIO FIRST DISTRICT COURT OF APPEALS

17 inappropriate and therefore not be in the best inter est of the child ” based on the factors in R.C. 3119.23. R.C. 3119.22. “This determination ‘must be supported by findings of fact and must be journalized.’ ” Rummelhoff , 2022
- Ohio

- 1224 at ¶ 19, quoting Carr v. Blake , 1st Dist. Hamilton No. C

- 990174, 2000 Ohio App. LEXIS 557 , * 14 (Feb. 18, 2000), citing Marker v. Grimm , 65 Ohio St.3d 139, 601 N.E.2d 496 (1992), paragraph three of the syllabus. 

### {¶43} Situations like th is one, where parenting time is split between two parties , are specifically contemplated in the statute

. Essentially, the statute provides that as the obligor’s parenting time increases, the court may deviate the child

- support obligation downward . The Second District has distilled these “deviation thresholds” as follows: (1) 90 or more overnights mandates a 10% downward adjustment to child support without any consideration of other deviation factors (R.C. 3119.051); (2) 91 or more overnights compels the judge to consider whether to grant an additional downward deviation in addit ion to the mandatory adjustment (R.C. 3119.231(A)); and (3) 147 overnights triggers the requirement the trial court provide an explanation for its decision to deny further deviation (R.C. 3119.231(B)). Mangen v. Mangen, 2d Dist. Montgom ery No. 29112, 2021

- Ohio

- 3693, ¶ 24. 

### {¶44} In this case, the child

- support worksheet included the 10 percent mandatory adjustment for shared parenting on Line 19(b). Next, the court deviated downward an additional $1,018.42 based on father’s share of parenting time being equal to or exceeding 147 overnights per year , pursuant to R.C. 3119.231(B) . The court’s entry provided the following reasons for the deviation:OHIO FIRST DISTRICT COURT OF APPEALS

18 Father has extended parenting time and associated expenses for the children. Father requires the d eviation so as to p rovide for the children in his household. The parties will each pay for academic and extra

curricular activities for the children on his or her own time. 

### {¶45} T his deviation was not an abuse of discretion. The parties do not dispute that fa ther now has more t han 147 overnights with the children annually. Moreover, the deviation is included on Line 25(b) of the child

- support worksheet, which provides
that the deviation is “[f]or 3119.231 extended parenting time.” Under R.C. 3119.231,

courts have discretion to deviate for expenses associated with shared parenting. The court’s findings provide dir ect support for this deviation. Mother’s second assignment of error is overruled.OHIO FIRST DISTRICT COURT OF APPEALS

19 Father’s First Assignment of Er ro r: Motion to Show Cause 

### {¶46} In fat her’s first assignment of error, he argues that the court erred when it denied his “motion to show cause (contempt),” and fai led to award him attorney fees. In sum, he argues this was an abuse of discretion because the trial court wrongly applied the uncl ean hands do ctrine, and because the court’s own findings supported a finding of contempt. 

### {¶47} This court reviews a trial court’s decision on a motion for contempt for an abuse
of discretion. Cobb v. Ortiz , 1st Dist. Hamilton No. C

- 200276, 2021

- Ohio

- 2009, ¶ 8, citing Wolf v. Wolf

, 1st Dist. Hamilton No . C

- 090587, 2010

- Ohio

- 2762, ¶ 4. The trial court is empowered to “determine the kind and the character of conduct that constitutes contempt.” Fisher v. Fisher , 7th Dist. Harrison No. 17 HA 0008, 2018

- Ohio

- 2477, ¶ 25, citing I n re Ayer , 119 Ohio App.3d 571, 576, 695 N.E.2d 1180 (1st Dist.1997), quoting State ex rel. Turner v. Albin , 118 Ohio St. 527, 161 N.E. 792 (1928).

“ [S]ince the primary interest involved in a contempt proceeding is the authority and proper func tioning of t he court, great reliance should be placed upon the discretion of the trial judge.” Denovchek v. Bd. of Trumbull Cty. Commrs ., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988)

. 

### {¶48} “To establish civil contempt, the part y seeking to enforce a court order must prove by clear and convincing evidence that a court order exists and that the nonmoving party has not complied with the terms of that order.” Cobb at ¶ 8, citing
Mees v. Mees , 1st Dist. Hamilton No. C

- 150033, 2015
- Ohi o - 5127, ¶ 11. 

### {¶49} In his motion, father alleged that mother denied his weekend parenting time

on several occasions , blocked all phone conta ct between him and the children, and withheld medical information from him

. While not raised by mother on appeal, weOHIO FIRST DISTRICT COURT OF APPEALS

20 not e that the court denied moth er’s “motion for contempt/back child support” in the same entry. Like father’s motion, mother’s motion was based on father’s failure to comply with the divorce decree, specifically regarding parenting time. 

### {¶50} As discussed through out this opinion, the court found that mother had withheld parenting time and medical information . However, it also found that father was not consistent in exercising his regular parenting time and “ create [d ] just as much drama at interactions as M other

. ” The record supports these findings

. Thus, it was clear that because the court found both parties to be at fault for the conflicts in this case, neither party should be found in contempt. In light of our highly deferential standard of review, and because the trial court is empowere d to “determine the kind
and the character of conduct that constitutes c ontempt, ” we do not hold this to be an abuse of discretion. See Fisher , 7th Dist. Harrison No. 17 HA 0008, 2018

- Ohio

- 2477 , ¶ 25. 

### {¶51} Father contends that the court erred when it discussed the unclean hands doctrine in the “ c onclusions of l aw” section of its entry. Father argues this was erroneous because “said defense must be raised affirmatively.” 

### {¶52} Even if we were to hold that it was improper for the trial court to have relied on the uncl ean hands doctrine, we nevertheless hold the record amply supported the court’s decision to deny father’s motion. See State v. Lozier , 101 Ohio St.3d 161 , 2004
- Ohio

- 732, 803 N.E.2d 770, ¶ 4 6 , superseded by statute on other grounds as recognized in State v . Shannon , 11th Dist. Portage No. 2015
- P

- 0077, 2016

- Ohio

- 8220, ¶ 17 ( “ A reviewing court is not authorized to reverse a correct judgment merely because
it was reached for the wrong reason. ”) 

### {¶53} Father’s first assignment of error is overruled.OHIO FIRST DISTRICT COURT OF APPEALS

21 Conclusion 

### {¶54} For the foregoing reasons, we overrule mother’s first a nd second assignments of error, along with father’s first and second assignments of error. We affirm the judgment of the domestic relations court.

Judgment affirmed

. M YERS , P. J., and W INKLER , J., concur .

Please note: The court has recorded its entry on the date of the release of this opinion