[Cite as Asbanyoli v. Haddadin , 2024

- Ohio

- 170.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Fadi S. Asbanyoli

, :

No. 2 3 AP

- 163

Plaintiff

- Appell ant

, : ( C.P.C

. No. 19DR

- 0 707 )

v. : ( REGULAR CALENDAR)

Jennifer Haddadin

, :

Defendant

- Appellee. :

D E C I S I O N

Rendered on January 1 8 , 2024

On brief: Harry Lewis Co., LPA

, and Gregg R. Lewis for

appellant

.

On brief: Law Office of Jefferson Liston, LLC

, and

Jefferson E. Liston for appellee

.

APPEAL from the Franklin County Court of Common Pleas

,

Division of Domestic Relations

MENTEL, P. J.

{¶ 1} Plaintiff

- appellant, Fadi S. Asbanyoli , appeals from a February 16, 2023

judgment entry and decree of divorce. For the reasons that follow, we affirm

.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 28, 2019, appellant filed a complaint against defendant

appellee

, Jennifer Haddadin

, for divorce citing incompatibility and alle ged gross neglect of

duty. On April 19, 2019, appellee

, filed her answer and counterclaim against appellant for

divorce alleging incompatibility and gross neglect of duty. Both parties requested , among

other things, to be named residential and legal cu stod ian of the minor children. Appellant

and appellee filed motions for temporary orders without oral hearing on February 28, 2019

and April 19, 2019, respectively

. In the motions, a ppellant and appellee each sought to beNo. 2 3 AP

- 163 2

named the temporary resid enti al and legal custodian of the minor children. On June 3,

2019, the trial court appointed a guardian ad litem ( “ GAL ” ) to represent the children ’ s

interests. On J uly 12, 2019, the GAL submitted his first report and recommended that both

parties have temporary residential and legal custody of the minor children. On Ju ly 29,

2019, the magistrate in the case issued temporary orders that both parties be designated

the legal and residential custodians of the minor children

, and both parents be named as

school placement parents as long as they resided in Upper Arlington School District. The

magistrate also determined appellant to be the child support oblig or and ordered chi ld

support payments at that time

. On February 18, 2020, a mediation outcome notice was

filed with the court, which indicated that the parties had failed to reach an agreement in

this matter.

{¶ 3} On March 29, 2021, the GAL submitted his second interim report and

recommendation to the court. The G AL recommended that both parties continue as the

temporary residen ti al and legal custodians of the minor children and that appellant ’ s

parenting time be modified. On May 12, 2021, the magistrate issued an amended

temporary order , which in relevant part, modified the parenting time pursuant to the GAL ’ s

recommendation. On October 10, 2022, the G AL submitted his final report and

recommendation. The G AL rec ommended the parties have shared parenting and

whichever parent reside d in the Upper Arlington School District be designated the school

placement parent. The report also provided additional recommendation s as to enrollment

in extracurricular activities, counseling for the parents, methods of communication

between the parents, and a proposed shared parenting plan

.

{¶ 4} After a series of continuances, the matter was set for trial on October 17, 2022

and continued through October 2 6 , 2022. Relevant to the instant appeal, the following

evidence was adduced at trial.

{¶ 5} The parties were married on August 19, 2012 in Chicago, Illinois

. There is no

dispute that the parties were bona fide residents of the s tate of Ohio for six months and

resided in Franklin County, Ohio for 90 days prior to the filing of appellant ’ s complaint for

divorce

. During the marriage, the parents had three children: S.A. (d.o.b. 4/21/2014); A.A.No. 2 3 AP

- 163 3

(d.o.b. 7/6/2017); and E.A. (d.o.b. 7/6/2017). The parties have lived apart without

cohabitation since March 5, 2019.

{¶ 6} Appellant has completed high school and earns an annual income of $32,760

from the care of his mother through Hilliard Home Care LLC

. Appellee holds a b achelor ’ s

and master’s degree in public health

. During the course of the marriage, appellee became

a stay

- at

- home mother. Appellee is now employed at Tzagournis Family and Cosmetic

Dentistry and has an annual income of $26,520. There is no dispute that the parties hold

no marital debts or assets that need to be divided.

{¶ 7} On February 16, 2023, the trial court issued its judgment entry and decree of

divorce in this matter

. T he parties were determined incompatible and entitled to a divorce

from one another. The parties were to keep their full interest in any pension, IRA 401(K)

,

or financial accounts in his or her individual name. The parties have divided their

household goods and personal property

, and do not own any real estate. Relevant to the

instant appeal, the trial court designated appellee as the sole legal custodi an and residential

parent of the minor children. T he trial court further held that appel lant was to pay $490.37

as a monthly child support obligation

. In reaching this determination, the trial court , after

consideration of the applicable deviation factors , declined to reduce appellant ’ s child

support payment

.

{¶ 8} Appellant filed a timely appeal.

II. ASSIGNMENT S OF ERROR

{¶ 9} Appellant assign s the following as trial court error:

[ I. ] THE COURT ABUSED ITS DISCRETION WHEN IT

DESIGNATED DEFENDANT

- APPELLEE THE SOLE LEGAL

CUSTODIAN AND RESIDENTIAL PARENT OF THE

PARTIES MINOR CHILDREN.

[ II. ] THE COURT ABUSED ITS DISCRETION IN FAILING TO

CONSIDER A DE

V IATION TO THE CHILD SUPPORT

ORDER WHEN IT ORDERED PLAINTIFF

- APPELLANT TO

PAY CHILD SUPPORT IN THE AMOUT (sic.) OF $490.37.

(Sic passim.)No. 2 3 AP

- 163 4

III. LEGAL ANALYSIS

A. Appellant ’ s First Assignment of Error

{¶ 10} We begin by reviewing the trial court ’ s determination of appellee as the sole

legal custodian and residential parent of the minor children.

{¶ 11} This court reviews the trial court ’ s finding of legal custody and residen ti al

parent for an abuse of discretion. Myers v. Wade , 10th Dist. No. 16AP

- 667 , 2017

- Ohio

8833, ¶ 15, citing Miller v. Miller , 37 Ohio St.3d 71 , 74 (1988)

. A trial court ’ s judgment is

deemed an abuse of discretion when it is unreasonable, arbitrary, or unconscionable. State

ex rel. McCann v. Del aware Cty. Bd. of Elections , 155 Ohio St.3d 14, 2018

- Ohio

- 3342, ¶ 12.

When reviewing an assignment of error for an abuse of discretion, an appellate court may

not merely substitute its judgment for that of the trial court. Mayer v. Mayer , 10th Dist.

No. 21AP

- 3 , 2022

- Ohio

- 533, ¶ 16, citing Ha v ens v. Havens , 10th Dist. No. 11AP

- 708, 2012

-

Ohio

- 2867, ¶ 6, citing Holcomb v. Holcomb , 44 Ohio St.3d 128 (1989)

. An appellate court

should not independently reweigh the evidence. Mayer at ¶ 16, citing Lopez

- Ruiz v. Botta

,

10th Dist. No. 11AP

- 577, 2012

- Ohio

- 718, ¶ 13, citing Miller at 71. However,

even under an abuse of discretion standard, no court is permitted to commit an error of

law. (Further citation omitted.) Badescu v. Badescu , 10th Dist. No. 18AP

- 947, 2020

- Ohio

4312

, ¶ 9. Accordingly , a court abuses its discretion when its decision is based on an error

of law. Id.

{¶ 12} Appellant does not dispute that the trial court reviewed the statutory factors

concerning custody and parental rights

. (Appellant ’ s Brief at 16; Reply Brief at 6.)

Appellant contends that throughout the pendency of this case, the parties have both been

designated as the legal custodian and residential parent of the minor children. Appellant

argues that t he trial court erred, therefore

, when it deviated from the prior temporary

orders. (Appellant ’ s Brief at 15.)

{¶ 13} R.C. 3109.04 authorizes the trial court to allocate the parental rights and

responsibilities for the care of a minor child. R.C. 3109.04(F) (1) directs:

(F) (1) 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 andNo. 2 3 AP

- 163 5

responsibilities, the court shall consider all relevant factors,

including, but not limited to:

(a) The wishes of the child ’ s parents regarding the child ’ s care;

(b) If the court has interviewed the child in chambers pursuant

to division (B) of this section regarding the child ’ s wishes and

concerns as to the allocation of parental rights and

responsibilities concerning the child, the wishes and concerns

of the child, as expressed to the court;

(c) The child ’ s interaction and interrelationship with the child ’ s

parents, siblings, and any other person who may significantly

affect the child ’ s best interest;

(d) The child ’ s adjustment to the child ’ s home, school, and

community;

(e) The mental and physical health of all persons involved in

the situation;

(f) The parent more likely to honor and facilitate court

approved parenting time rights or visitation and

companionship rights;

(g) Whether either parent has failed to make all child support

payments, including all arrearages, that are required of that

parent pursuant to a child support order under which that

parent is an obligor;

(h) Whether either parent or any member of the household of

either parent previously has been convicted of or pleaded guilty

to any criminal offense involving any act that resulted in a child

being an abused child or a neglected child; whether either

parent, in a case in which a child has been adjudicated an

abused child or a neglected child, previously has been

determined to be the perpetrator of the abusive or neglectful

act that is the basis of an adjudication; whether either parent

or any member of the household of either parent previously has

been convicted of or pleaded guilty to a violation of section

2919.25 of the Revised Code or a sexually oriented offense

involving a victim who at the time of the commission of the

offense was a member of the family or household that is the

subject of the current proceeding; whether either parent or any

member of the household of either parent previously has been

convicted of or pleaded guilty to any offense involving a victim

who at the time of the commission of th e offense was a memberNo. 2 3 AP

- 163 6

of the family or household that is the subject of the current

proceeding and caused physical harm to the victim in the

commission of the offense; and whether there is reason to

believe that either parent has acted in a manner resulting in a

child being an abused child or a neglected child;

(i) Whether the residential parent or one of the parents subject

to a shared parenting decree has continuously and willfully

denied the other parent ’ s right to parenting time in accordance

with an order of the court;

(j) Whether either parent has established a residence, or is

planning to establish a residence, outside this state.

{¶ 14} In its February 16, 2023 decree, t he trial court wrote that it reviewed the

entire file, all pleadings, and testimony presented at trial. Trial court also observed the

testimony of the witnesses

, determined the witnesses ’ credibility

, and weighed the evidence

during the course of trial. The trial court emphasized that the overriding concern regarding

the allocation of parental rights and responsibilities is the best interest of the children

. The

trial court noted that the minor children did not participate in an in

- camera interview

.

{¶ 15} The trial court provided extensive discussion of the relevant statutory factors

.

As to the wishes of the parents regarding the children ’ s care , the trial court wrote that the

parties failed to reach an agreement on parental rights and responsibilities. 1 See

R.C. 3109.04(F)(1)(a). While appellant proposed that the parties have shared parenting,

appellee wanted to be named the sole residential parent and legal custodian of the minor

children. Both parents expressed concerns about the other ’ s ability to effectively coparent.

( Feb. 16, 2023 Divorce Decree at 13.) The trial court also noted that while both parties have

a good relationship and bond with the children

, they each expressed concerns over the

other ’ s parenting of the minor children

. See R.C. 3109.04(F)(1)(c). The trial court fo und

that while the children have adjusted to school, they either ha d an Individualized Education

Program ( “ IEP ” ) or their IEP status was pending at the time of trial. See

R.C. 3109.04(F)(1)(d)

. A ll the children have varying types of mental and physical health

concerns. Of note, a ll the children have been diagnosed

, or there is need for additional

1 The trial court found that R.C. 3109.04(F)(1)(b), (h), and (j) were not applicable to the case. ( Feb. 16, 2023

Divorce Decree at 13, 16.)No. 2 3 AP

- 163 7

testing

, with autism spectrum disorder. See R.C. 3109.04(F)(1)(e)

. W hile there have been

no willful denials of parenting time, there have been concerns as to the tardiness of

exchanges

. See R.C. 3109.04(F)(1)(f) and ( i )

. A ppellant is current on all child support

payments

. See R.C. 3109.04(F)(1)(g)

.

{¶ 16} In addition to the above statutory factors , R.C. 3109.04(F) (2) 2 provides that

when 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 following :

(a) The ability of the parents to cooperate and make decisions

jointly, with respect to the children;

(b) The ability of each parent to encourage the sharing of love,

affection, and contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse,

other domestic violence, or parental kidnapping by either

parent;

(d) The geographic proximity of the parents to each other, as

the proximity relates to the practical considerations of shared

parenting;

(e) The recommendation of the guardian ad litem of the child,

if the child has a guardian ad litem.

{¶ 17} Concerning R.C. 3109.04(F)( 2 ) ( a )

, i.e., the ability of the parents to cooperate

and make decisions jointly, the trial court found that the parties expressed concerns about

their ability to cooperate and work together

. The GAL also shared this concern.

“ [T] estimony was provide d that showed both parties have failed to provide sufficient

information to the other about situations and/or have not done so in a timely manner. ”

( Divorce Decree at 17

. ) The trial court wrote that appellee alleged appellant had threated

her during a parenting time exchange , which appellant denied. Both parties testified that

appellee had called the police on several occasions but none of th o se calls resulted in

charges, arrests, or civil protection orders. See R.C. 3109.04(F)(2) (c ). However, both

parties testified that they wanted the other parent to have a good relationship with the

2 See also R.C. 3109.04 (F) (3) ( “ When allocating parental rights and responsibilities for the care of children,

the court shall not give preference to a parent because of that parent ’ s financial status or condition

. ” )

.No. 2 3 AP

- 163 8

minor children and, therefore, could encourage the sharing of love, affection, and contact

between the children and the other parent. See R.C. 3109.04(F)(2)(b)

. 3 The GAL

recommended that the parties share parenting and for whichever parent reside s in Upper

Arlington School District to be designated the school placement parent. See R.C.

3109.04(F)(2)(e).

{¶ 18} Finally, R.C. 3109.051(D) enumerates additional factors when determin ing

parenting time:

(1) The prior interaction and interrelationships of the child

with the child ’ s parents, siblings, and other persons related by

consanguinity or affinity, and with the person who requested

companionship or visitation if that person is not a parent,

sibling, or relative of the child;

(2) The geographical location of the residence of each parent

and the distance between those residences, and if the person is

not a parent, the geographical location of that person ’ s

residence and the distance between that person ’ s residence and

the child ’ s residence;

(3) The child ’ s and parents ’ available time, including, but not

limited 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 child ’ 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 as to parenting time by the parent who is

not the residential parent or companionship or visitation by the

grandparent, relative, or other person who requested

companionship or visitation, as to a specific parenting time or

visitation schedule, or as to other parenting time or visitation

matters, the wishes and concerns of the child, as expressed to

the court;

(7) The health and safety of the child;

3 The trial court also noted that the parties live approximately 10 miles apart, or a 19

- minute drive, so geographic proximity is not an issue in this case. R.C. 3109.04(F)(2)(d) ; R.C. 3109.051(D)( 2 )

.No. 2 3 AP

- 163 9

(8) The amount of time that will be available for the child to

spend with siblings;

(9) The mental and physical health of all parties;

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

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

and with respect 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 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

the adjudication; 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;

(12) In relation to requested companionship or visitation by a

person other than a parent, whether the person 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 the person, 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 the adjudication;

whether e ither parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised

Code 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

previously has been convicted of an 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 the person has acted in a manner resulting in a

child being an abused child or a neglected 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;No. 2 3 AP

- 163 10

(14) Whether either parent has established a residence or is

planning to establish a residence outside this state;

(15) In relation to requested companionship or visitation by a

person other than a parent, the wishes and concerns of the

child ’ s parents, as expressed by them to the court;

(16) Any other factor in the best interest of the child.

{¶ 19} Here, the trial court cited its prior findings that while both parties have a good

relationship and bond with the children, they expressed concerns over the other ’ s parenting

of the minor children. 4 See R.C. 3109.051(D)( 1 )

. The trial court also found that the parents

work traditional schedules , which permits them to each work around their parenting time

periods

. See R.C. 3109.051(D)(3)

. The trial court restated the age of the children and

referenced its prior findings as to the learning and educational needs of the children

discussed in R.C. 3109.04( F )( 1 )( d )

. See R.C. 3109.051(D)( 4 ) through (5)

. The trial court

also referenced its prior discussion as to the mental and physical health of the children

, and

that the parents both expressed concerns about the safety of the children in the other ’ s care

.

T he GAL , however, testi fi ed that he had no concerns about the children ’ s physical health or

safety. See R.C. 3109.051(D)( 7 ) and ( 9 )

. The trial court, in its discussion of

R.C. 3109.051(D)( 10 ), wrote that t he parents have been capable of agreeing on makeup

parenting time, but it reiterated the parties have “ displayed [an] inability to effectively

communicate that could impact each parent ’ s willingness to reschedule missed parenting

time and to facilitate the other parent ’ s parenting time rights. ” ( Divorce Decree at 21.) As

for the remaining relevant factors, the trial court referenced its prior findings concerning

R.C

. 3109.04(F)(1)(h ) through ( j)

. See R.C. 3109.051(D)(1 1 ) through (14).

{¶ 20} Upon review, we cannot find that the trial court ’ s determination as to child

custody and residential parent was an abuse of discretion. While it is true that the GAL

recommended that the parties have shared parenting over the minor children

, this is one

of many statutory factors to consider in making a custody determination

. The trial court ’ s

conclusion that it would be in the best interest of the children to grant appellee sole legal

custody and residential parent was driven , at least in part, by the parents ’ inability to reach

4 The trial court found R.C. 3109.051(D )( 6 )

, ( 8 ) , ( 15 ) , and ( 16 ) were not applicable factor s

.No. 2 3 AP

- 163 11

a parenting agreement as well as concern s regarding their ability to cooperate and make

decisions

. “ The parties have engaged in a highly litigious battle for the children a nd their

disputes are endless. This Court notes concern that this will be a batt le for the remainder

of these children ’ s lives both in and out of court. ” ( Divorce Decree at 12

. ) Given the

justifiable concerns over the ability of the p arties to coparent, the trial court ’ s d esignation

of appellee as the sole legal custodian and residential parent of the minor children was

reasonable.

{¶ 21} Appellant ’ s first assignment of error is overruled.

B. Appellant ’ s Second Assignment of Error

{¶ 22} In appellant ’ s second assignment of error, he contends that the trial court

erred when it imposed a monthly child support obligation of $490.37. Appellant does not

dispute that the trial court ’ s underlying calculation of child support complied with the Ohio

Child Support Guidelines. Appellant argues that a deviation was appropriate as the parents

have near equal parenting time

, and he “ barely makes more money than [a]ppellee and his

earning capacity is significantly lower than [a]ppellees. ” (Appellant ’ s Brief at 21.)

{¶ 23} The General Assembly addressed matters concerning child support orders in

R.C. 3119. “ ‘ The underlying purpose of Ohio ’ s child support legislation * * * is to meet the

current needs of the minor child. ’ ” Habib v. Shikur , 10th Dist. No. 17AP

- 735, 2018

- Ohio

2955, ¶ 13, quoting Harbour v. Ridgeway , 10th Dist. No. 04AP

- 350, 2005

- Ohio

- 2643,

¶ 34. R.C. 3119.03 provides “ the amount of child support that would be payable under a

child support order, as calculated pursuant to the basic child support schedule and

applicable worksheet through the line establishing the actual annual obligation, is

rebuttably presumed to be the correct amount of child support due. ” However, pursuant

to R.C. 3119.22, a court may deviate from the child support schedule and applicable

worksheet if, after con sideration of the factors set forth in R.C. 3119.23, the court finds that

the calculated amount “ would be unjust or inappropriate and therefore not be in the best

interest of the child. ” R.C. 3119.22; see also Caleshu v. Caleshu , 10th Dist. No. 19AP

- 742

,

2020

- Ohio

- 4075, ¶ 21. We review a trial court ’ s determination of a child support order for

an abuse of discretion. Habtemariam v. Worku , 10th Dist. No. 19AP

- 47, 2020

- Ohio

- 3044,

¶ 19, citing Wolf

- Sabatino v. Sabatino , 10th Dist. No. 12AP

- 1042, 2014

- Ohio

- 1252, ¶ 6.No. 2 3 AP

- 163 12

{¶ 24} Here, t he trial court considered each of the factors provided in R.C. 3119.23

and found that a deviation was not warranted. ( Divorce Decree at 23

- 25 , 32

- 33 .) As to

appellant ’ s claims, the trial court acknowledge d that appellee has a significant

advancement in her completed education and earning capabilities compared to appellant,

but it ultimately found that a deviation from the child support guidelines was not

appropriate

. ( Divorce Decree at 24 , 32 .) Upon review, we cannot find that the trial court ’ s

child support determination was an abuse of discretion. While it is true appellee has an

advanced degree, appellee testified that she was out of the workforce for some time caring

for the children. A court is not required to deviate from the child support guidelines

“ ‘ merely because a deviation would be permissible, or even desirable. ’ ” Weaver v. Weaver

,

10th Dist. No. 16AP

- 743, 2017

- Ohio

- 4087, ¶ 13, quoting Warzala v. Warzala , 11th Dist. No.

2006

- T

- 0018, 2007

- Ohio

- 2855, ¶ 26. When considering whether a deviation is warranted,

there is no “ ‘ bright

- line test

. ’ ” Weaver at ¶ 11, quoting Morosko v. Willis , 9th Dist. No.

21333, 2003

- Ohio

- 3360, ¶ 18. Thus, a parent is not automatically entitled to a downward

deviation even in cases when extraordinary circumstances or factors under R.C. 3119.23 are

present. Weaver at ¶ 13, citing Bonvillian v. Clark , 3d Dist. No. 10

- 13

- 20, 2014

- Ohio

- 2003,

¶ 17. While appellant disagree s with the trial court ’ s determination, he has fail ed to

demonstrate that the trial court abused its discretion by d eclining to deviate from the

amount of child support provided in the guidelines

.

{¶ 25} Based on the foregoing, appellant ’ s second assignment of error is overruled.

IV. CONCLUSION

{¶ 26} Having overruled appellant ’ s t wo assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas , Division of Domestic Relations

.

Judgment affirmed.

JAMISON and EDELSTEIN

, J J., concur.

_____________