[Cite as I.R. v. D.R., 2023-Ohio-1427.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF WAYNE )

I.R.

Appellant

v.

D.R.

Appellee

C.A. No. 22AP0012

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF WAYNE, OHIO

CASE No. 2020 DR-A 000140

DECISION AND JOURNAL ENTRY

Dated: May 1, 2023

CARR, Judge.

{¶1} Plaintiff-Appellant, Isaac R. (“Father”), appeals from the judgment of the Wayne 

County Court of Common Pleas, Domestic Relations Division. This Court affirms.

I.

{¶2} Father and Defendant-Appellee, Denise R. (“Mother”), married in 2009. They have 

four children together, two of whom are adopted and two of whom are their biological children. 

The children were born in 2007, 2009, 2013, and 2016, respectively. After Father filed for divorce 

in 2020, both he and Mother sought temporary and permanent custody of the children.

{¶3} Father and Mother engaged in joint and individual counseling while married. 

Mother described an ongoing pattern of abuse and sexually aggressive behavior on the part of 

Father. Specifically, she reported he had a long-standing history of pressuring her or forcing her 

to engage in unwanted sexual activity, even when she was injured or ill. He also would force her 

to have sex in the middle of the night but would not recall his actions the following morning. 
2

 

Father’s nighttime behavior led to him being diagnosed with sexsomnia,1a condition that causes 

people to engage in sexual behaviors while asleep. According to Mother, Father always pressured 

her to abandon the safety plans they created to deal with his sexsomnia. When she would relent 

and return to their marital bed, Father would invariably assault her again during the night. Mother 

left the marital residence with the children before Father filed for divorce.

{¶4} The trial court awarded temporary custody of the children to Mother. The court 

also appointed a guardian ad litem and ordered the parties and the children to submit to a custody 

evaluation performed by a court-appointed clinical psychologist. Although the temporary orders 

afforded Father a mid-week visit and parenting time on weekends, the trial court refused to allow 

him to keep the children overnight. The guardian ad litem and custody evaluator ultimately agreed 

with that order, recommending Father’s parenting time not include any overnight stays. 

{¶5} A magistrate conducted the parties’ final divorce hearing and issued a decision. 

Relevant to this appeal, the magistrate named Mother residential parent and legal custodian. The 

magistrate awarded Father parenting time that did not include any overnight stays. After the trial 

court adopted and entered judgment on the magistrate’s decision, Father filed objections. Upon 

review, the trial court overruled his objections to the magistrate’s decision. 

{¶6} Father now appeals from the trial court’s judgment and raises two assignments of 

error for review. To facilitate our analysis, this Court reorders his assignments of error. 

1

“Sexsomnia” is also spelled “sexomnia” in multiple places throughout the record. For the sake 

of consistency, this Court will employ the former spelling throughout this opinion.
3

 

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT’S FINDINGS OF FACT, WITH RESPECT TO ITS 

DECISION PROHIBITING APPELLANT FROM HAVING OVERNIGHT 

PARENTING TIME WITH THE MINOR CHILDREN, WERE AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.

{¶7} In his second assignment of error, Father argues several of the trial court’s factual 

findings are against the manifest weight of the evidence. Upon review, this Court rejects his 

argument.

{¶8} This Court generally reviews a trial court’s decision to adopt a magistrate’s decision 

for an abuse of discretion. Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, 

¶ 5. “In so doing, we consider the trial court’s action with reference to the nature of the underlying 

matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18. 

While a trial court’s ultimate decision regarding the allocation of parental rights and 

responsibilities “will not be reversed absent an abuse of discretion, this Court applies the manifest 

weight of the evidence standard to review the trial court’s factual findings.” Herron v. Herron, 

9th Dist. Summit No. 29683, 2021-Ohio-2223, ¶ 24. In a manifest weight review, 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.” (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, ¶ 20. “When weighing the evidence, this Court ‘must always be mindful 

of the presumption in favor of the finder of fact.’” In re T.K., 9th Dist. Summit No. 28720, 2017-

Ohio-9135, ¶ 7, quoting Eastley at ¶ 21.
4

 

{¶9} The trial court found Father had been diagnosed with “Other Specified Personality 

Disorder” and exhibited traits consistent with a narcissistic and antisocial personality. While 

Father also had been diagnosed with sexsomnia, the court noted, the doctor who tendered that 

diagnosis had never spoken to Mother. As such, the sexsomnia diagnosis did not take into account 

information that Father also routinely made unwanted sexual advances toward Mother while he 

was awake. The trial court found the custody evaluator, Dr. Robin Tener, had set forth numerous 

concerns and inconsistencies in Father’s sexsomnia diagnosis. Moreover, even if Father suffered 

from sexsomnia, the court found, that meant he had “no control or awareness of his aggressive 

sexual behavior.” The court found the anti-anxiety medication Father had started taking was “not 

a treatment” for sexsomnia. It also found he was “unable to control his [sexsomnia] or stop it from 

occurring.” The court indicated it had “grave concerns regarding the safety of the children on 

overnight visits” based on evidence Father had “no control over his sexually aggressive behavior, 

whether due to a diagnosis of [sexsomnia], or due to his lack of self-control, which he tries to 

[wave] off as mere ‘persistence.’” 

{¶10} Father argues four of the trial court’s factual findings are against the manifest 

weight of the evidence. First, he challenges the court’s finding that he had “no control over his 

sexually aggressive behavior, whether due to a diagnosis of [sexsomnia], or due to his lack of selfcontrol, which he tries to [wave] off as mere ‘persistence.’” Father argues there was no evidence 

his sexual behavior affected the children or his parenting style. He notes Mother never testified 

he had directed any inappropriate sexual behavior at the children. According to Father, the court’s 

finding that he lacked control over his sexual behavior was reflective of a moral judgment on the 

part of the court rather than a conclusion drawn from the evidence.
5

 

{¶11} Second, and relatedly, Father challenges the court’s finding that his sexsomnia 

diagnoses, if accepted, meant he had “no control or awareness of his aggressive sexual behavior.” 

He argues that finding directly contravenes expert evidence he presented in the form of a letter and 

testimony from Dr. Robert Sibilia, the sleep medicine expert who diagnosed him. According to 

Father, that evidence showed he had taken extensive steps to control his sexsomnia, including 

starting medication, making lifestyle changes, and implementing preventative measures. Because 

the evidence showed he had succeeded in controlling his sexsomnia through treatment, Father 

argues, the trial court lost its way when it issued a finding to the contrary.

{¶12} Third, Father challenges the court’s finding that his anti-anxiety medication was 

“not a treatment” for sexsomnia. He argues there was no evidence in the record to support that 

finding. In fact, Father avers, Dr. Sibilia specifically testified the medication he prescribed Father 

had been shown to benefit sexsomnia. Because Mother failed to present any evidence to refute 

that testimony, Father argues, the trial court’s finding to the contrary is against the weight of the 

evidence.

{¶13} Finally, Father challenges the trial court’s finding that the custody evaluator, Dr. 

Tener, set forth numerous concerns and inconsistencies in Father’s sexsomnia diagnosis. 

According to Father, Dr. Tener failed to cite any evidence in support of her conclusions or explain 

how she was qualified to refute Dr. Sibilia’s expert opinion. Because Dr. Tener did not testify, 

Father argues, he also was not able to challenge her conclusions on cross-examination. He argues 

the trial court erred when it assigned any evidentiary weight to Dr. Tener’s report and relied on the 

report to justify its factual findings.
6

 

Findings Regarding Father’s Lack of Control

{¶14} Because the first two factual findings Father challenges are interrelated, we will 

address them together. Both findings concern Father’s inability to control himself. Whether due 

to sexsomnia or a general lack of self-control, the trial court found Father was unable to control 

his sexually aggressive behavior.

{¶15} Dr. Sibilia testified as an expert in sleep medicine. He met with Father six to seven 

times and diagnosed him with sexsomnia based on Father’s self-reporting information he had 

learned from Mother. Dr. Sibilia defined sexsomnia as a condition wherein a person acts out in a 

sexual manner during their initial non-REM stage of sleep. Those sexual behaviors can range from 

verbal noises to having sexual intercourse with another person. Regardless of the type of sexual 

behavior that transpires, Dr. Sibilia testified, a component of sexsomnia is “an unawareness of the 

event.” Because they are asleep, sexsomniacs “have almost total amnesia” regarding their actions. 

{¶16} Dr. Sibilia testified sexsomnia can be mitigated by reducing certain triggers such 

as anxiety, alcohol, and a lack of healthy sleeping habits. He described the treatment plan he 

crafted for Father, which included Father seeing a therapist, taking an anti-anxiety medication, 

creating a fitness and sleep routine, and sleeping alone. He testified they had been able to confirm 

the efficacy of Father’s treatment by placing an alarm on his bedroom door and having him wear 

an actigraphy watch to bed to monitor his heart rate. Neither had shown Father had experienced 

any sexsomnia episodes since beginning his treatment plan. Further, Dr. Sibilia testified Father 

had no history of sleepwalking. It was Dr. Sibilia’s opinion Father posed no danger to his children 

if he continued to follow his treatment plan. When asked about co-sleeping, however, Dr. Sibilia 

testified: “co-sleeping with roommates, children, friends, I don’t recommend that at all.” He 

recommended the children sleep on a different floor if they spent the night in a house with Father.
7

 

{¶17} During his testimony, Father confirmed he had no memory of any sexsomnia 

episodes. He conceded that he suffered from that condition and that Mother first alerted him to 

his nighttime transgressions in 2013. The court evaluator, Dr. Tener, reported: 

[Father] claimed that he had no awareness of the fact that he was initiating sexual 

involvement with [Mother] during the nighttime hours, because he was diagnosed 

with Sexsomnia. He indicated that he was helpless to behave differently because 

the unwanted sexual activity that [Mother] complained about occurred when he was 

deeply asleep. Thus, [Father] emphasized that he had no control over the sexual 

behavior that he demonstrated while he was asleep * * *.

(Emphasis added.) Father also admitted there were times he had knowingly pushed Mother to 

engage in sexual intercourse during the marriage, even when she was sick with a fever or suffering 

from back pain. According to Father, Mother eventually consented each time after “some 

persistent” asking on his part.

{¶18} When Mother testified, she described a pattern of constant sexual aggression on the 

part of Father. She indicated she was a virgin when the parties married and, even before their 

marriage, Father pressured her to engage in sexual activity, put his hands in her clothes, and 

grabbed her private areas. On their honeymoon, Mother recalled, she found intercourse painful 

and wanted to stop, but Father insisted she had to have sex with him as many times as he wanted. 

She testified Father began engaging in forcible sexual intercourse with her during the night when 

their oldest biological daughter was about six months old. When she told Father what was 

happening, Mother stated, he found the situation humorous, laughed at her, and said, “this is so 

funny, I just love you so much day and night * * *.” She testified Father would not see a counselor 

for several years after the sexsomnia episodes began. Mother did not believe Father’s sexsomnia 

diagnosis was entirely accurate as his aggressive nighttime behavior was “pretty consistent” with 

his daytime behavior. It was her impression Father simply lacked sexual boundaries and was not 

concerned if he hurt others.
8

 

{¶19} To the extent counselors tried to create safety plans for her and Father during their 

marriage, Mother testified, Father would only abide by those plans for a short while. She described 

how she would sleep apart from Father to feel safe, but he would constantly pressure her to return 

to their bed and become more aggressive with the children until she relented. Mother testified 

Father had “repeatedly broken promises” and had “lied to [her] about every safety plan” they 

crafted. Regarding the children, Mother also described how Father had violated an agreement they 

had reached about his not sharing a bed with the children. Mother testified she once walked in on 

Father and their young daughter sleeping together in bed after Father had promised not to do so. 

While Father acknowledged their daughter had climbed into his bed on that one occasion, he 

denied falling asleep. He testified he allowed their daughter into his bed early one morning while 

he remained awake because he did not want her waking the household at that hour. 

{¶20} Having reviewed the record, we cannot conclude this is the exceptional case where 

the evidence weighs heavily against the trial court’s findings that Father was unable to control his 

aggressive sexual behavior. See Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20. While 

Father took steps to mitigate his sexsomnia, he acknowledged he had a complete lack of control 

over his actions during a sexsomnia episode. There was evidence he repeatedly forced Mother to 

engage in sexual intercourse in his sleep and had no memory of doing so. Dr. Sibilia felt Father 

would not pose a risk to the children if he continued to follow his treatment plan. Nevertheless, 

Dr. Sibilia still recommended the children sleep on a different floor and advised against Father cosleeping with anyone unless it was some future consenting partner. The trial court heard Mother 

testify that Father routinely pressured her to disregard any safety plans they created and broke an 

agreement not to allow their daughter into his bed. While Father presented some conflicting 

testimony, the trier of fact was in the best position to judge the credibility of the witnesses. See In 
9

 

re T.K., 2017-Ohio-9135, at ¶ 7, quoting Eastley at ¶ 21 (noting the presumption in favor of the 

finder of fact in manifest weight challenges). Father has not shown the trial court lost its way and 

created a manifest miscarriage of justice when it determined he was unable to control his 

aggressive sexual behavior. Thus, we reject his argument to the contrary.

Finding Regarding the Efficacy of Anti-Anxiety Medication

{¶21} Father’s next challenge concerns the trial court’s finding that his anti-anxiety 

medication was “not a treatment” for sexsomnia. Dr. Sibilia testified he had prescribed Father a 

medication “that has been reported to benefit [] sexsomnia.” He did not expound upon that 

statement. Father later testified he was taking an anti-anxiety medication for which “studies [had 

been] done to show the efficacy of treatment * * *.” He listed his medication as an example of a 

lifestyle change he had made to reduce the risk of a sexsomnia episode. He testified anxiety can 

be a trigger for sexsomnia, so managing his anxiety was a part of his treatment.

{¶22} According to Father, there is no evidence in the record to support the trial court’s 

finding that his anti-anxiety medication was “not a treatment” for sexsomnia. In fact, Father 

argues, the trial court’s finding directly contravenes Dr. Sibilia’s expert testimony. Yet, the record 

reflects Dr. Sibilia referred Father to another doctor for a second opinion. That second doctor’s 

name was Dr. Kingman Strohl. The court evaluator, Dr. Tener, outlined and quoted portions of a 

clinical summary Dr. Strohl completed in November 2020 after meeting with Father. In his clinical 

summary, Dr. Strohl acknowledged Father was taking an anti-anxiety medication. Dr. Strohl 

wrote: “Unfortunately, literature has no consensus as to an effective medication [for sexsomnia].” 

Moreover, Dr. Tener wrote in her evaluation report: “Per reports provided by both [Dr. Sibilia and 

Dr. Strohl], there is no treatment available that guarantees [sexsomnia] has been 
10

 

cured/substantially alleviated.” Dr. Tener also wrote: “The anti[-]anxiety medication that [Father] 

is prescribed is not considered to be a treatment for Sexsomnia, per the expert he consulted.”

{¶23} The record belies Father’s argument that the trial court’s finding about his antianxiety medication lacks evidentiary support. Dr. Strohl included statements to that effect in his 

clinical summary, and Dr. Tener cited those statements in her clinical evaluation report. Father 

has not explained how the trier of fact lost its way by relying on information provided by Dr. 

Strohl, as reported by Dr. Tener. This Court will not construct an argument on his behalf. See

App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 

6, 1998). Upon review, Father has not shown the trial court lost its way and created a manifest 

miscarriage of justice when it found his anti-anxiety medication was “not a treatment” for 

sexsomnia. Thus, we reject his argument to the contrary.

Finding Regarding Dr. Tener’s Report

{¶24} Father’s last challenge concerns the trial court’s finding that “[t]he report of Dr. 

Tener sets forth numerous concerns and inconsistencies in the sexsomnia diagnosis.” Father does 

not dispute that Dr. Tener’s report does, in fact, set forth concerns and perceived inconsistencies 

in his diagnosis. His argument is that the trial court erred when it assigned weight to her report 

because she did not cite evidence to support her conclusions, she did not explain how she was 

qualified to comment on his diagnosis, and she was not subject to cross-examination.

{¶25} Assuming without deciding that Father’s argument presents us with a proper 

challenge to the trial court’s factual finding rather than its ultimate decision to rely on Dr. Tener’s 

report in allocating parental rights and responsibilities, a review of the record reveals his argument 

lacks merit. Dr. Tener was a clinical psychologist, and the court appointed her to complete a 

custody evaluation. The report she submitted spanned over 100 pages and offered an in-depth 
11

 

evaluation based on interviews and assessments she conducted with Mother, Father, and the 

children; joint sessions with Mother and the children; joint sessions with Father and the children; 

the results of psychological tests she performed on Mother and Father; a review of therapy records 

from each of the counselors and therapists Mother and Father had seen; and a review of any 

medical records or clinical summaries related to Father’s sexsomnia diagnosis and treatment. Dr. 

Tener offered criticisms of Father’s diagnosis based on her review of the foregoing items. She 

described, in detail, the instances of sexual abuse Mother alleged, the behaviors Mother saw Father 

exhibit, and Mother’s suspicions Father was not always asleep when he forced her to engage in 

sexual activity during the night. She also described Father’s tendency to minimize his behavior, 

lack empathy, and prioritize his own needs above all others. While acknowledging she was not a 

sleep specialist, Dr. Tener noted Father’s diagnosis was based strictly on self-reporting. She 

emphasized that neither of the experts who had met with Father had spoken to Mother, and it 

appeared Father had minimized both the frequency and intensity of the incidents that had occurred 

when he self-reported. Further, Dr. Tener wrote, “in both medical consultations, there was no 

discussion of the fact that [Father] demonstrated difficulty managing his sexual impulses and 

complying with physical boundaries when he was fully awake and conscious.” (Emphasis sic.) 

{¶26} Apart from explaining why she was critical of Father’s sexsomnia diagnosis, Dr. 

Tener also explained the concerns she had about his sexsomnia, if that diagnosis applied. She 

noted, per the reports of Father’s own experts, that a reemergence of sexsomnia cannot be predicted 

and there is no definitive cure for the condition. She questioned how Father could be effectively 

monitored in a household with children when effective monitoring “is dependent on the presence 

of another person who can provide information” while the subject is asleep. Further, Dr. Tener 

questioned Father’s recognition of the seriousness of his diagnosis. She emphasized that he had 
12

 

allowed his young daughter to share his bed at a time when he knew Mother was sleeping 

elsewhere as a direct result of his sexsomnia. 

{¶27} During Dr. Sibilia’s testimony, he acknowledged his diagnosis was based strictly 

on Father’s self-reporting. He recalled recommending to Father at one point “that it would [have 

been] nice” to speak with Mother but said “it didn’t seem like that was going to be possible at the 

time * * *.” Dr. Sibilia never spoke directly with Mother, the guardian ad litem, or Dr. Tener. He 

also never spoke with Father’s counselor. Dr. Sibilia acknowledged his diagnosis of sexsomnia 

could change based on the accuracy of the information he received. 

{¶28} Upon review, we cannot conclude this is the exceptional case where the evidence 

weighs heavily against the trial court’s finding that Dr. Tener’s report “set[] forth numerous 

concerns and inconsistencies in [Father’s] sexsomnia diagnosis.” See Eastley, 132 Ohio St.3d 328, 

2012-Ohio-2179, at ¶ 20. Dr. Tener outlined, in detail, all the information she gathered and the 

sources she consulted in forming her opinions. While fully acknowledging she was not a sleep 

expert, she explained the basis for the inconsistencies she perceived in Father’s diagnosis and the 

concerns she had related to that diagnosis. Father has not shown the trial court lost its way when 

it found her report identified concerns and inconsistencies in his diagnosis. Thus, we reject his 

argument that the court’s finding is against the manifest weight of the evidence. Father’s second 

assignment of error is overruled. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S DECISION, PROHIBITING APPELLANT FROM 

HAVING OVERNIGHT PARENTING TIME WITH THE MINOR CHILDREN, 

WAS AN ABUSE OF DISCRETION.
13

 

{¶29} In his first assignment of error, Father argues the trial court abused its discretion 

when it refused to award him overnight parenting time in allocating the parties’ parental rights and 

responsibilities. We disagree.

{¶30} “[T]rial courts enjoy broad discretion in both the allocation of parental rights and 

responsibilities and visitation determinations.” Michael v. Michael, 9th Dist. Wayne No. 

20AP0010, 2021-Ohio-992, ¶ 33. This Court, therefore, reviews those decisions for an abuse of 

discretion. Id. at ¶ 32-33. See also Tabatabai, 2009-Ohio-3139, at ¶ 18 (actions on magistrate’s 

decision reviewed with reference to nature of the underlying matter). An abuse of discretion 

“implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this 

Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 

Ohio St.3d 619, 621 (1993).

{¶31} “The allocation of parental rights and responsibilities, i.e. custody, is governed by 

R.C. 3109.04; parenting time or visitation is governed by R.C. 3109.051.” Loewen v. Newsome, 

9th Dist. Summit No. 28107, 2018-Ohio-73, ¶ 13. “When a trial court determines parenting time 

under R.C. 3109.051, it must do so consistent with the best interests of the children involved with 

consideration of the factors mentioned in R.C. 3109.051(D).” Pirkel v. Pirkel, 9th Dist. Lorain 

No. 13CA010436, 2014-Ohio-4327, ¶ 9. “Many of the factors listed in R.C. 3109.051(D) mirror 

the best interest factors contained in R.C. 3109.04(F) * * *.” Michael at ¶ 28. Relevant to this 

appeal, R.C. 3109.051(D) directs courts to consider: (1) the prior interaction and interrelationships 

of the children with their parents, siblings, and other family members; (2) the geographical location 

of each parent; (3) each parent’s and child’s schedule; (4) the age of the children; (5) the children’s 

adjustment to home, school, and community; (6) the health and safety of the children; (7) the 
14

 

mental and physical health of all parties; (8) each parent’s willingness to facilitate the other’s 

parenting time rights; and (9) any other factor in the children’s best interest. R.C. 3019.051(D)(1)-

(5), (7), (9)-(10), (16). “[T]o further a child’s best interests, the court has the discretion to limit or 

restrict visitation rights, including ‘the power to restrict the time and place of visitation, to 

determine the conditions under which visitation will take place and to deny visitation rights 

altogether if visitation would not be in the best interests of the child.’” Stahl v. Stahl, 9th Dist. 

Summit No. 27876, 2017-Ohio-4170, ¶ 15, quoting Marrero v. Marrero, 9th Dist. Lorain No. 

02CA008057, 2002-Ohio-4862, ¶ 9.

{¶32} Father argues the trial court abused its discretion when it denied him overnight 

parenting time based on his sexsomnia diagnosis. Once again, he argues there was no evidence he 

lacked control over his aggressive sexual behavior such that it could impact the children. He notes 

there were never any allegations he acted inappropriately toward the children or engaged in acts 

of sexsomnia with anyone other than Mother. Further, Father argues, the evidence showed he had 

successfully treated his sexsomnia with a combination of medication and lifestyle changes. Father 

points to Dr. Sibilia’s report wherein he opined that Father was not a risk to the children. Father 

argues it was unreasonable for the trial court to disregard Dr. Sibilia’s expert opinion given that 

Mother failed to present any contrary medical evidence. According to Father, the trial court’s 

decision not to award him overnight parenting time was a product of its bias against him rather 

than a decision reflective of the best interest of the children. He claims the court ignored evidence 

Mother had abused the children by using physical punishments and emotional maltreatment. 

Further, he claims the court failed to consider alternative sleeping arrangements he proposed, such 

as having the children sleep in a home with their paternal grandparents during his parenting time. 
15

 

Father argues the trial court abused its discretion when it issued a decision that was not in the 

children’s best interest.

{¶33} Initially, we note that Father’s brief conflates the concepts of custody and parenting 

time. His captioned assignment of error only challenges one aspect of the trial court’s parenting 

time order (i.e., that he not be afforded overnight visitation). In the body of his brief, Father 

likewise focuses on that aspect of the trial court’s order, arguing it constituted an unreasonable 

limitation on his parenting time. Father has not cited R.C. 3109.051, however, or outlined the best 

interest factors contained therein. Instead, he cites the best interest factors outlined in R.C. 

3109.04, which applies when a trial court allocates custody. See Loewen at ¶ 13. As previously 

noted, many of the best interest factors contained in R.C. 3109.04(F) and 3109.051(D) mirror one 

another, Michael at ¶ 28, but only R.C. 3109.051 governs parenting time determinations. See 

Loewen at ¶ 13. The record reflects the trial court conducted two separate analyses in its order; 

one addressed to its custody determination, and one addressed to its parenting time determination. 

Father has failed to differentiate between the two or present this Court with an argument 

specifically addressed to the factors contained in R.C. 3109.51(D). 

{¶34} This Court declines to engage in an exhaustive review of the best interest factors 

outlined in R.C. 3109.51(D) when Father has not done so. See Loewen, 2018-Ohio-73, at ¶ 13. 

The record reflects the trial court reviewed each of those factors to the extent it found them 

applicable. In refusing to award Father any overnight parenting time, the court focused its analysis 

on the health and safety of the children and the mental and physical health of all parties. See R.C. 

3109.051(D)(7), (9). The court noted it had “grave concerns” about awarding Father overnight 

parenting time, in his home or any other, based on his inability to control his sexsomnia/sexually 

aggressive behavior. The court also cited the analysis it had conducted under R.C. 3109.04(F), 
16

 

wherein it discussed Father’s diagnosis in greater detail. In that analysis, the court found Father’s 

sexsomnia diagnosis suffered from inconsistencies, as cited by Dr. Tener, and did not account for 

the abusive daytime behavior Mother had described. Even accepting his diagnosis as accurate, 

however, the trial court emphasized the potential danger to the children given Father’s inability to 

control his behavior while asleep and evidence he previously had allowed his young daughter to 

sleep in his bed. The court noted Father had been diagnosed with a personality disorder and bore 

traits consistent with narcissistic personality disorder and antisocial personality disorder. It also 

noted he continually demonstrated an unwillingness to take responsibility for his actions and 

“[waved] off” any suggestion that he lacked self-control. Based on the foregoing concerns, the 

trial court deemed it in the children’s best interest not to have any overnight visitations with Father. 

We cannot conclude the trial court went so far as to abuse its discretion in imposing that restriction 

on Father’s parenting time. See Stahl, 2017-Ohio-4170, at ¶ 15, quoting Marrero, 2002-Ohio4862, at ¶ 9.

{¶35} Father’s brief also includes a statement that the trial court erred by awarding 

custody to Mother. Yet, that issue falls outside the scope of his captioned assignment of error, 

which only challenges the trial court’s parenting time restriction. See Schutte v. DiCello, 9th Dist. 

Summit No. 28807, 2018-Ohio-5118, ¶ 15. Moreover, it does not appear from the record that 

Father preserved a custody challenge for review. In his objections to the magistrate’s decision, 

Father objected to the parenting time order under R.C. 3109.051, the allocation of certain tax 

exemptions to Mother, the award of certain real property to Father, the accuracy of certain factual 

findings and legal conclusions related to his sexsomnia diagnosis, the finding that Mother was 

more likely to facilitate visitation, and the decision to admit Dr. Tener’s report without her taking 

the stand and being subject to cross-examination. He did not object to the magistrate’s ultimate 
17

 

legal conclusion that it was in the children’s best interest to award custody to Mother. Nor has he 

argued plain error on appeal. See Civ.R. 53(D)(3)(b)(iv) (lack of objection to magistrate’s decision 

forfeits all but plain error). This Court will not construct a plain error argument on his behalf. See 

O’Hara v. Ephraim, 9th Dist. Summit No. 28467, 2018-Ohio-567, ¶ 13. Because Father’s 

additional custody argument falls outside the scope of his assignment of error and, in any event, 

was not preserved by way of objection, this Court declines to address it. Father’s first assignment 

of error is overruled. 

III.

{¶36} Father’s assignments of error are overruled. The judgment of the Wayne County 

Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

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 Wayne, 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.
18

 

Costs taxed to Appellant.

DONNA J. CARR

FOR THE COURT

SUTTON, P. J.

STEVENSON, J.

CONCUR.

APPEARANCES:

SUSAN J. LAX, Attorney at Law, for Appellant.

NORMAN R. “BING” MILLER, Attorney at Law, for Appellee.