[Cite as Girdlestone v. Girdlestone, 2016-Ohio-8073.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STEPHEN GIRDLESTONE 

 Plaintiff-Appellant 

-vsABIGAIL GIRDLESTONE 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. W. Scott Gwin, J. 

Hon. John W. Wise, J. 

Case No. 2016 CA 00019 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Domestic Relations Division, Case 

No. 2012 DR 00567 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 5, 2016 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

DENISE K. HOUSTON STANLEY R. RUBIN 

LAUREN A. GRIBBLE 431 Market Avenue North 

TZANGAS PLAKAS MANNOS LTD. Canton, Ohio 44702 

220 Market Avenue South, 8th Floor 

Canton, Ohio 44702 
Stark County, Case No. 2016 CA 00019 2

Wise, J. 

{¶1} Plaintiff-Appellant Stephen Girdlestone appeals the decision of the Stark 

County Court of Common Pleas, Domestic Relations Division, which denied his postdecree motion to terminate or modify the shared parenting provision of the parties’ 2013 

divorce. Defendant-Appellee is Abigail Girdlestone, the former spouse. The relevant facts 

leading to this appeal are as follows. 

{¶2} Appellant Stephen and Appellee Abigail were married in 2007. Four sons 

were born of the marriage: H.G., W.G., A.G., and J.G. 

{¶3} On May 8, 2012, Appellant Stephen filed for divorce in the Stark County 

Court of Common Pleas, Domestic Relations Division. Appellee Abigail filed an answer 

and counterclaim on May 30, 2012. 

{¶4} A final decree of divorce was issued on November 12, 2013. A nunc pro 

tunc judgment entry was issued on November 22, 2013. The terms of the divorce included 

a 50/50 shared parenting provision, which states as follows in pertinent part: 

“[Appellant and appellee] hereby consent that they shall discuss and 

jointly agree on all significant and important matters related to the parties' 

children and in making important decisions regarding said children, subject 

to the exceptions set forth in the within Plan, with respect to which decision 

making authority rests with the Father. If the parties are unable to agree as 

to issues which are not subject to such exceptions, any such issue shall be 

submitted to mediation, through the guardian ad litem, Kristen Guardado, 

who shall remain continuously appointed in the within action ***.” 
Stark County, Case No. 2016 CA 00019 3

{¶5} It appears undisputed Appellee Abigail did not comply with the shared 

parenting plan on a number of occasions, as further discussed infra. As a result, on May 

26, 2015, appellant filed a motion asking the trial court to terminate shared parenting or, 

in the alternative, to modify the plan and/or designate him as the residential parent. On 

May 27, 2015, appellant additionally filed a motion to show cause, asking the court to hold 

appellee in contempt for her alleged lack of compliance with the shared parenting plan. 

{¶6} A trial to the court was conducted on December 15 and 16, 2015. The trial 

court issued a thirteen-page judgment entry with findings of fact and conclusions of law 

on December 29, 2015. 

{¶7} The trial court therein noted inter alia that the shared parenting plan was 

more specific concerning parental decision-making than most it had seen and was 

“heavily weighted in favor of the Father'' in that regard. Judgment Entry at 10. However, 

the court found that appellee had violated aspects of the plan on numerous occasions, 

noting she had demonstrated "passive aggression or outright refusal to comply ***." Id. at 

6. The court also observed that appellee had "shown an inability to cooperate with 

decisions made by [appellant] in this case.” Id. at 12. Although the guardian ad litem, 

Attorney Kristen Guardado, presented her recommendation to terminate shared 

parenting and award custody of all four boys to appellant, the trial court decided to keep 

the plan in place and instead render a finding of appellee being in willful contempt of the 

court’s divorce orders. However, the court suspended appellee’s jail sentence for 

contempt on the condition of payment to appellant of $7,500.00 in attorney fees and future 

compliance with the court's orders. The trial court also warned her to remedy her 

"contentious conduct or face an outright termination of parental rights in the future.” Id. at 
Stark County, Case No. 2016 CA 00019 4

13. It also ordered the parties to continue with counseling, and to use the court’s online 

format for parental communication. 

{¶8} Appellant filed a notice of appeal on January 26, 2016. He herein raises the 

following sole Assignment of Error: 

{¶9} “I. TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO 

TERMINATE SHARED PARENTING AND AWARD CUSTODY TO FATHER OR, IN THE 

ALTERNATIVE, TO MODIFY THE PLAN WHEN MOTHER HAS DEMONSTRATED A 

PATTERN OF INFLEXIBILITY, DISREGARD OF HER PARENTING OBLIGATIONS, 

AND INATTENTION TO THE CHILDREN'S BEST INTERESTS.” 

I. 

{¶10} In his sole Assignment of Error, appellant contends the trial court abused 

its discretion in declining to terminate or modify the parties’ shared parenting plan 

concerning H.G., W.G., A.G., and J.G. We disagree. 

Standards of Review 

{¶11} In addressing a motion for the termination or modification of a shared 

parenting plan where the parents have ceased to mutually agree, a trial court must 

determine (1) whether a change in circumstances has occurred, (2) whether termination 

or modification is in the children's best interests, and (3) whether the advantage to the 

child resulting from the termination or modification outweighs any potential harm. See

Ford v. Ford, 5th Dist. Tuscarawas No. 2012 AP 03 0025, 2012-Ohio-5454, ¶ 13. 

{¶12} On appeal, our standard of review in assessing the disposition of child 

custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 

73–74. In order to find an abuse of that discretion, we must determine the trial court's 
Stark County, Case No. 2016 CA 00019 5

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or 

judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. 

Furthermore, as an appellate court reviewing evidence in custody matters, we do not 

function as fact finders; we neither weigh the evidence nor judge the credibility of 

witnesses. Our role is to determine whether there is relevant, competent and credible 

evidence upon which the fact finder could base his or her judgment. See Dinger v. Dinger,

5th Dist. Stark No. 2001CA00039, 2001–Ohio–1386. Because custody issues are some 

of the most difficult and agonizing decisions a trial judge must make, he or she must have 

wide latitude in considering all the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d 

415, 418, 674 N.E.2d 1159. 

Change in Circumstances 

{¶13} R.C. 3109.04(E)(2)(c) gives the court authority to terminate certain shared 

parenting plans upon the request of one or both of the parents or when it determines that 

shared parenting is no longer in the child or children's best interest. Although there is not 

unanimity among the various appellate districts in Ohio on the issue, this Court has taken 

the position that a trial court must consider the threshold question of “change of 

circumstances,” as well as “best interest,” in deciding a shared parenting termination 

issue. See, e.g., Brocklehurst v. Duncan, 5th Dist. Muskingum No. CT10–0026, 2010–

Ohio–5978, ¶ 19; Oliver v. Arras, 5th Dist. Tuscarawas No. 2001 AP 11 0105, 2002–Ohio–

1590. We have also indicated a trial court's determination of parental “ongoing and 

unresolved issues with communication” may constitute a change of circumstances for 

modification of a shared parenting order. Murphy v. Murphy, 5th Dist. Tuscarawas No. 

2014 AP 01 0002, 2014-Ohio-4020, ¶ 22. 
Stark County, Case No. 2016 CA 00019 6

{¶14} Appellant correctly notes that in the case sub judice, the trial court, in 

deciding not to terminate or modify shared parenting, made no explicit determinations 

regarding change in circumstances; appellant nonetheless maintains that “to whatever 

degree its holding was based on a finding that no change in circumstances has occurred, 

such a finding was unmistakably an abuse of discretion ***.” Appellant’s Brief at 24. 

{¶15} However, under the circumstances presented, we find further discussion of 

the “change in circumstances” criterion would be merely academic or advisory. 

Best Interest Factors

{¶16} R.C. 3109.04(F)(1) states as follows: 

{¶17} “In determining the best interest of a child pursuant to this section, whether 

on an original decree allocating parental rights and responsibilities for the care of children 

or a modification of a decree allocating those rights and responsibilities, the court shall 

consider all relevant factors, including, but not limited to: 

{¶18} “(a) The wishes of the child's parents regarding the child's care; 

{¶19} “(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; 

{¶20} “(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; 

{¶21} “(d) The child's adjustment to the child's home, school, and community; 

{¶22} “(e) The mental and physical health of all persons involved in the situation; 
Stark County, Case No. 2016 CA 00019 7

{¶23} “(f) The parent more likely to honor and facilitate court-approved parenting 

time rights or visitation and companionship rights; 

{¶24} “(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; 

{¶25} “(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; 
Stark County, Case No. 2016 CA 00019 8

{¶26} “(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; 

{¶27} “(j) Whether either parent has established a residence, or is planning to 

establish a residence, outside this state.” 

{¶28} Furthermore, R.C. 3109.04(F)(2) provides: “In determining whether shared 

parenting is in the best interest of the children, the court shall consider all relevant factors, 

including, but not limited to, the factors enumerated in division (F)(1) of this section, the 

factors enumerated in section 3119.23 of the Revised Code, and all of the following 

factors: 

{¶29} “(a) The ability of the parents to cooperate and make decisions jointly, with 

respect to the children; 

{¶30} “(b) The ability of each parent to encourage the sharing of love, affection, 

and contact between the child and the other parent; 

{¶31} “(c) Any history of, or potential for, child abuse, spouse abuse, other 

domestic violence, or parental kidnapping by either parent; 

{¶32} “(d) The geographic proximity of the parents to each other, as the proximity 

relates to the practical considerations of shared parenting; 

{¶33} “(e) The recommendation of the guardian ad litem of the child, if the child 

has a guardian ad litem.” 

{¶34} We note that there is no requirement that a trial court separately address 

each best interest factor enumerated in R.C. 3109.04. See In re Henthorn, Belmont App. 

No. 00–BA–37, 2001–Ohio–3459. Absent evidence to the contrary, an appellate court will 
Stark County, Case No. 2016 CA 00019 9

presume the trial court considered all of the relevant factors listed in R.C. 3109.04(F)(1). 

Id., citing Evans v. Evans (1995), 106 Ohio App.3d 673, 677, 666 N.E.2d 1176. 

{¶35} In the case sub judice, three of the parties’ four sons are school-age and 

are involved in various sports, religious, and scouting activities. The aforesaid shared 

parenting plan provided that the parties should try to agree which activities their sons 

would participate in, but if they could not, appellant would have the final say.1 They made 

a similar agreement regarding medical care for the boys subject to certain provisions. The 

plan further required that the parent with physical custody of the children at the time was 

responsible for taking them to school, scheduled extracurricular activities, and medical 

appointments. 

{¶36} The record reveals that appellee failed to comply with the plan on several 

fronts. These actions included taking one of the boys to a therapist and another to a 

pediatric dentist, in both cases without appellant’s knowledge. Also, appellee at one point 

stopped giving allergy medication to the children, and she insisted that they try a 

homeopathic approach instead. Furthermore, appellee admitted that she had failed to 

fully oversee the boys’ school homework during her parenting time. Tr. at 131, 187. 

Appellee also failed on numerous occasions to take the children to extracurricular and 

religious activities, as articulated in detail by appellant. See Appellant’s Brief at 12-15, 20-

21. The trial court was not persuaded by appellee’s position that the boys were in too 

many activities, such as hockey team commitments. The court acknowledged that the 

activities, while frequent, were sufficiently “spaced out.” Judgment Entry at 10-11. 

 

1 However, appellant, per the Plan, cannot allow the boys to participate in more than two 

activities at a time, exclusive of religious events and programs. 
Stark County, Case No. 2016 CA 00019 10

{¶37} We also note the guardian ad litem's recommendation in this instance was 

to terminate shared parenting and award custody of all four boys to appellant. In addition, 

the parties’ high-conflict counselor had been frustrated with the lack of progress, although 

she recalled that the most recent session had gone much better. But it appears 

undisputed that despite appellee’s obdurate parenting choices in certain areas, all four 

sons are currently healthy and generally doing well in school.2

{¶38} Ultimately, the trial court determined that “[i]f the Shared Parenting Plan that 

the parties entered into in 2013 were to be strictly followed with regard to communication 

and decision-making,” it “would clearly be in the children’s best interest to have as much 

contact with both parents as possible while addressing their physical, social, and 

emotional needs.” Judgment Entry at 12-13. The court went on to find that a termination 

of the plan would be "premature and not in the children's best interest." Id. at 13. The 

court thus opted for a contempt finding as its preferred present remedy, warning appellee 

that she could be facing an “outright termination” of her parental rights if her conduct was 

not corrected. Id. at 13. 

{¶39} It is axiomatic that in proceedings involving the custody and welfare of 

children, the power of the trial court to exercise discretion is peculiarly important. See

Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey 

v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. Under the present circumstances, 

upon review, we find the trial court duly considered the statutory “best interest” factors, 

 

2 The youngest child was pre-school age at the time of the evidentiary hearing. It should 

also be noted that the oldest child has struggled with his social skills, possibly due to his 

parents’ conflict. 
Stark County, Case No. 2016 CA 00019 11

and its decision to essentially invoke a wait-and-see approach to try to preserve the 

shared parenting order did not constitute an abuse of discretion.

Harm/Advantage Weighing

{¶40} In addition to the issues of “change in circumstances” and whether a shared 

parenting modification is in the best interest of the child, a trial court must also consider 

whether the harm that will result from the change will be outweighed by the resultant 

benefits, pursuant to R.C. 3109.04(E)(1)(a)(iii). See Oliver v. Arras, supra. 

{¶41} In the case sub judice, the trial court did not reach this factor upon 

determining that termination of shared parenting would not be in the boys’ best interest. 

As such, we find further discussion of this issue is presently moot.

Conclusion 

{¶42} Our review of the record thus does not indicate that appellate reversal under 

the circumstances presented would be warranted against the trial judge who observed 

the evidentiary proceedings firsthand. 

 
Stark County, Case No. 2016 CA 00019 12

{¶43} Appellant's sole Assignment of Error is therefore overruled. 

{¶44} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Domestic Relations Division, Stark County, Ohio, is hereby affirmed. 

By: Wise, J. 

Hoffman, P. J., and 

Gwin, J., concur. 

 

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