[Cite as Whitaker v. Whitaker , 2020-Ohio-2774.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

CARRIE M. WHITAKER, Appellee and Cross-Appellant,

- vs -

CODY B. WHITAKER, Appellant and Cross-Appellee. :

:

:

:

:

: CASE NOS. CA2019-05-008 CA2019-05-009

O P I N I O N 5/4/2020

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DRA 20140128

Engel & Martin, LLC, Mary K. Mart in, 4660 Duke Drive, Suite 101 , Mason, Ohio 45040, for appellee and cross-appellant Wood & Long, LLC, Chelsea L. Long, Marc ie A. Fronef ield, 503 So uth High Street, Suite 205, Columbus, Ohio 43215, for appellant and cross-appellee

RINGLAND, J. {¶1} Appellant/Cross-appellee, Cody Whitaker ("Father"), appeals fro m a decision of the Fayette County Court of Common Pleas, Domestic Relations Division, following his divorce from appellee/cross-appellant, Carrie Whitaker ("Mother "). Mother also appeals the

trial court's decision.Fayette CA2019-05-008 CA2019-05-009

- 2 - {¶2} Mother and Father were married on August 31, 2002 and had two c hildren: Ca.W born on June 6, 2007, and Co.W born on July 1, 2010. Moth er filed a complaint for divorce on April 14, 2014. {¶3} Mother was awarded temporary custody and the parenting schedule provided for equal parenting time. The parties were able to reach agree ment regarding the allocation of marital debts and assets; however, the parties could not agr ee to the allocation of custody, parenting time, child support, and spousal support. {¶4} There were 12 evidentiary hearings before the magistrate betwee n June 5, 2014 and November 17, 2015. The record is replete with testimo ny concerning the parties' devout religious beliefs. Mother and Father met at Jamestown C hurch of Christ ("JCC") where Father's brother was the Pastor. In 2006, Father's broth er resigned as Pastor at the

JCC and started a new church called the Transformation Christia n Church ("TCC"). The TCC differed in many respects from the JCC, but especially with respect to their beliefs concerning the covenant marriage tenant. The TCC teaches that divorce and remarriage is an unforgivable sin. There is evidence in the record that m embers of the TCC must "shun" Christian family members and friends that have either di vorced and remarried or are married to a person who was previously divorced. 1 {¶5} This tenant of the TCC caused significant marital strife. Alth ough there is evidence that Mother initially agreed with the teachings of the TCC, the record indicates that her faith in the church soured, especially as the teaching s interfered with other relationships that Mother wished to continue. Mother testified that she was expected to not associate with her mother and stepfather because, as professing Christians, they had both

1. Father presented testimony from several members of the TCC. Some members denied there was an outright prohibition on associating with divorced Christians, b ut some alluded to the practice.Fayette CA2019-05-008 CA2019-05-009

- 3 - divorced their original spouses and remarried each other severa l decades prior. There was evidence, for example, that Father would fly into a fit of rage if she communicated with her mother, such as one time when he became extremely angry and tos sed several birthday gifts outside into the snow after her mother visited her on her birthday. That same day, Father "ransacked" her closet looking for any other gifts or re ceipts for gifts that could have been given to her in the past. Mother also testified that she was not allowed to attend her younger sister's wedding because she married a man who had prev iously been divorced. {¶6} When Mother began to reject the TCC's teachings, she explained that the ensuing years were "tense." Though she denied any physical vio lence, Mother testified that Father would psychologically torment her for veering from the t eachings of the TCC. The record also reveals that Father would engage in certain bullyin g behaviors, such as throwing water on her and referring to her as a "whore" because of past relationships she had prior to their relationship. 2 {¶7} The record reveals that the parties had significant marriage di fficulties including issues of mistrust and jealousy. Father admits to ce rtain behaviors, including surveilling Mother, demanding passwords for emails and messages , and attaching a GPS device to Mother's vehicle. There was testimony that, on one o ccasion, Father became so upset that Mother would not give him her passcode to her phone that he held a gun and

threatened to kill himself. Father later smashed Mother's phon e with a hammer. {¶8} There was also significant testimony concerning a black dress t hat Mother

wore to a funeral that Father later considered to be immodest. As a result, Father would take photographs of Mother "[t]o show other's how far [Mother] had fallen." Mother explained that this practice has impacted her oldest son, who s eems preoccupied with what

2. Father described the insult of calling Mother a "whore" his "go to thing."Fayette CA2019-05-008 CA2019-05-009

- 4 - clothing she wears. Mother believes that Father's conduct has had a negative impact on her relationship with her oldest son. When Mother brought up a concern to Father that their oldest son had said disrespectful things toward her, Father rep lied "if it was true he could say whatever he wants to me [Mother]." {¶9} While all this was ongoing, there were developments concerning the investigation of an inappropriate relationship between Mother a nd a former student where revealing photographs of Mother in lingerie were found on the f ormer student's personal computing device. Mother admits to taking revealing photograph s of herself but insists that she took them for Father's viewing. Mother denied sharing the photographs with the

student. Mother was never convicted of a crime based on this i nvestigation, but she did voluntarily resign her license to teach. The former student wa s called to testify but declined to appear and contested the subpoenas. 3 {¶10} The magistrate issued a judgment entry naming Father residentia l parent and awarding Mother parenting time. The parties filed objections t o the magistrate's decision. Following independent review, the trial court named Mother as t he residential parent and awarded equal parenting time. Father now appeals, raising six assignments of error. Mother cross-appeals, raising two cross-assignment of error for review. We will address the assignments of error out of order. {¶11} Assignment of Error No. 1: {¶12} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLEE, MOTHER, CUSTODY OF THE MINOR CHILDREN AS THE

DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶13} Assignment of Error No. 4:

3. The student did appear for a deposition, which was later ad mitted into the record.Fayette CA2019-05-008 CA2019-05-009

- 5 - {¶14} THE TRIAL COURT ERRED BY OVERRULING FATHER'S OBJECTIONS

TO THE MAGISTRATE'S DECISION. {¶15} In his first and fourth assignments of error, Father argues the trial court erred by designating Mother as the residential parent and legal custo dian of their children and in ordering equal parenting time. Father's arguments are without merit. {¶16} R.C. 3109.04 governs the award of parental rights and responsib ilities. In making this determination, the pr imary concern is the best inte rest of the child. Albrecht v.

Albrecht , 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245, 2015- Ohio-4916, ¶ 22. In order to determine the best interest of a child, R.C. 3 109.04(F)(1) requires the trial

court to consider all relevant factors. Bristow v. Bristow , 12th Dist. Butler No. CA2009-05- 139, 2010-Ohio-3469, ¶ 8. These factors include, but are not l imited to: (1) the wishes of the parents, (2) the child's interaction and interrelationship with his parents, siblings, and other persons who may significantly affect the child's best int erest, (3) the child's adjustment to home, school and community, (4) the mental and physical heal th of all persons involved, and (5) the likelihood that the caregiver would honor and facil itate visitation and parenting

time. Denier v. Carnes-Denier , 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-4998, ¶

14. {¶17} An appellate court will not disturb a trial court's decision wi th regard to the allocation of parental rights and responsibilities absent an ab use of discretion. Rainey v. Rainey , 12th Dist. Clermont No. CA2010-10-083, 2011-Ohio-4343, ¶ 15. An abuse of discretion implies that the trial court's attitude was unreason able, arbitrary, or

unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). When reviewing a trial court's decision, an appellate court "may not substitut e its judgment for that of the trial court because the 'discretion which a trial court enjoys in custody matters should beFayette CA2019-05-008 CA2019-05-009

- 6 - accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned.' " Renner v. Renner , 12th Dist. Clermont No. CA2014-01-004, 2014-Ohio-2237, ¶ 16, quoting Caldwell v. Caldwell , 12th Dist. Clermont Nos. CA2008-02-019 and CA2008-03-021, 2009-Ohio- 2201, ¶ 15. {¶18} In ruling on objections to a magistrate's decision, Civ.R. 53(D )(4)(d) requires a trial court to independently review the objected matters to a scertain whether the magistrate properly determined the factual issues and appropria tely applied the law. Koeppen v. Swank , 12th Dist. Butler No. CA2008-09-234, 2009-Ohio-3675, ¶ 26. W hen conducting its de novo review, the trial court may not defer to the magistrate because the magistrate is a subordinate officer of the trial court, not an independent officer performing a separate function. Leach v. Leach , 12th Dist. Butler No. CA2019-06-092, 2020-Ohio-1181, ¶ 11. Consequently, the trial court has the ultimate authority and responsibility over the magistrate's findings and rulings. Mandzak v. Graves , 12th Dist. Butler No. CA2009-06- 173, 2010-Ohio-595, ¶ 7. {¶19} After a thorough review of the record, we find the trial court did not abuse its discretion by designating Mother as the residential parent and legal custodian of the children and allocating equal parenting time. The record refle cts that the trial court considered all relevant factors in R.C. 3109.04(F)(1) and appli ed those factors in making its

decision. {¶20} The record reflects that both Mother and Father wish to be the residential parent and legal custodian of the children and presented eviden ce and testimony to support their respective positions. The children were not interviewed in camera, but the testimony presented indicates that the children are both bonded to their parents and are well cared for. The children are well-adjusted to their home, school, and community.Fayette CA2019-05-008 CA2019-05-009

- 7 - {¶21} As it relates to the mental and physical health of the persons involved, the record reflects that Father ordered a psychological report purs uant to R.C. 3109.04(C). The record reflects that both parents may suffer from some mental h ealth distress. Father presented psychological testing and exhibits from a psychologis t, Dr. Richard Bromberg. Dr. Bromberg conducted clinical interviews and psychological te sting on both Mother and Father and recommended that Father be the primary residential p arent for the children. Dr. Bromberg also recommended that Mother only have supervised visi tation with the children until she was able to complete a psychological examination and make progress in

treatment. {¶22} The trial court found Dr. Bromberg's testimony and report was r elevant and probative, but ultimately outside the scope of the referral. I n so doing, the trial court noted that Dr. Bromberg's recommendation was "specious." Though Dr. Bromberg indicated that his recommendation was made to a reasonable degree of psycholog ical certainty, he indicated that many of his conclusions were just "test findings " and equivocated on the value of his findings in terms of a diagnosis. The confusion surroun ding Dr. Bromberg's testimony was also shared by the GAL who included as part of her written report: My main problem in this case is Dr. Bromberg's testimony. As may have been evident by the direction my cross-examination took, it surprises me that he did not take into consideration t he reality that these parties were in. He seemed to want to insis t that the test could filter that out, but couldn't say how. He said [Mother] tested very high on the paranoia scale and that the fa ct that she was in fact being followed and ostracized did not affe ct the results. I find that hard to believe. In further question ing, he admitted that if a hypothetical spy, who was also being followe d and living a deceptive life, took the same test, he did not kno w how the test would turn out. He called it an interesting quest ion. 4

4. We note that the GAL recommended that Father be the residen tial parent and recommended a schedule for equal parenting time.Fayette CA2019-05-008 CA2019-05-009

- 8 - Thus, although the trial court considered Dr. Bromberg's testim ony and report, the court declined to adopt his "recommendations" as specious and outside the scope of the referral. {¶23} As it relates to the likelihood that the caregiver would honor and facilitate visitation and parenting time, the trial court found that Mothe r would be most likely to cooperate in that regard. In this case, there is evidence that Mother facilitates a relationship between Father and the children, while Father has been less coo perative in this regard. For example, Mother testified that Father would not allow her to vi sit with the children on Mother's Day because "Mother's Day was for mothers who actually cared about their children." There was also substantial evidence, much of it eli cited by Father, regarding the TCC's intolerance regarding divorce. As a result, Mother is co ncerned that Father's views are impacting her relationship with the children. This is evid enced by Father's behavior towards Mother. As previously noted, when Mother brought up a concern to Father that their oldest son had been behaving disrespectfully towards her, Father replied "if it was true he could say whatever he wants to me" and "if it's the truth I' m not going to tell him not to quote scripture." {¶24} Following review, we find that the trial court properly perform ed a thorough review of the record, including a proper balancing of best inte rest factors, and did not abuse its discretion in ordering that Mother remain the children's re sidential parent and legal custodian and ordering equal parenting time. {¶25} Assignment of Error No. 3: {¶26} THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOCATING PARENTING TIME ON AN EQUAL BASIS, AS IT IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE. {¶27} In his third assignment of error, Father argues the trial court 's decisionFayette CA2019-05-008 CA2019-05-009

- 9 - allocating parenting time is against the manifest weight of the evidence. Father's argument

is without merit. {¶28} Father is incorrect that the manifest weight of the evidence st andard applies to his challenge to the trial court's decision regarding parent ing time. It is well established

that a trial court is vested with broad discretion in determini ng the visitation rights of a nonresidential parent, and its decision will not be reversed ab sent an abuse of discretion.

Warman v. Warman , 12th Dist. Butler No. CA2016-08-170, 2017-Ohio-7462, ¶ 8. {¶29} In this case, the trial court ordered equal parenting time in a n alternating week

schedule. 5 Father states that the trial court's decision includes numero us transitions but fails to explain how this arrangement negatively impacts their best interests. Furthermore, a review of this assignment of error reveals that Father is mer ely reasserting or repackaging the arguments made with respect to the trial court's decision o n naming Mother residential parent and legal custodian. In so doing, Father summarily argu es that equal parenting time

is not in the children's best interest and that the "children s hould reside primarily with [Father] and exercise alternate weekends with [Mother]." Howev er, for the reasons detailed in resolution of Father's first and fourth assignments of error , Father's third assignment of error is also without merit and is hereby overruled. {¶30} Assignment of Error No. 2: {¶31} THE TRIAL COURT ERRED BY NOT CONSIDERING TESTIMONY OR

5. The trial court adopted the parenting time schedule in the temporary order: Mother: Tuesday at 6:00 p.m. to Sunday at 6:00 p.m. Father: Sunday at 6:00 p.m. to Tuesday at 6:00 p.m. Mother: Tuesday at 6:00 p.m. to Thursday 6:00 p.m. Father: Thursday at 6:00 p.m. to Tuesday at 6:00 p.m.Fayette CA2019-05-008 CA2019-05-009

- 10 - EVALUATION OF THE PSYCHOLOGICAL EXPERT. {¶32} In his second assignment of error, Father argues the trial cour t erred by not considering the testimony or evaluation of Dr. Bromberg. We di sagree. {¶33} As noted above, the trial court considered Dr. Bromberg's testi mony and report but ultimately found his recommendations to be "specious ." As noted in resolution of Father's first and fourth assignments of error, this finding was supported by the record. This court has previously noted that such considerations are "o nly one consideration that the trial court may take into account when making its best inte rest determination." Albrecht , 2015-Ohio-4916 at ¶ 25. In this case, the trial court consider ed the testimony presented by the psychologist, but ultimately rejected the psychologist's re commendation and found it

was in the best interest of the children for Mother to be named residential parent and custodian based on additional evidence that was presented durin g the hearings. Father's second assignment of error is overruled. {¶34} Assignment of Error No. 5: {¶35} THE TRIAL COURT ERRED BY CONSIDERING FATHER'S RELIGIOUS

BELIEFS IN CLEAR VIOLA TION OF HIS CONSTITUT IONAL RIGHTS TO FREE DOM OF

RELIGION UNDER THE FIRST AMENDMENT OF THE CONSTITUTION. {¶36} In his fifth assignment of error, Father alleges the trial cour t violated his constitutional rights to freedom of religion. Father's assignm ent of error is without merit. {¶37} "[P]arents have a fundamental right to educate their children, including the right to communicate their moral and religious values * * * [an d] 'direct the religious upbringing of their children.'" Suwareh v. Nwankwo , 12th Dist. Butler No. CA2017-12-174, 2018-Ohio-3737, ¶ 29, quoting Pater v. Pater , 63 Ohio St.3d 393, 397 (1992). "In a custody dispute, the parents' rights must be balanced against the state 's need to determine the bestFayette CA2019-05-008 CA2019-05-009

- 11 - interests of the child." Pater at 397. "[A] domestic relations court may consider the religi ous practices of the parents in order to protect the best interests of a child." Id . at 395. However, a court may not restrict a parent's right to expose his or her child to religious beliefs, "unless the conflict between the parents' religious beliefs is affectin g the child's general welfare."

Id . at paragraph two of the syllabus. {¶38} In this case, Father presented extensive testimony and argument regarding his religious convictions. Mother expressed concerns with the TCC's teachings due to Father's intolerance regarding divorce and that he may be forci ng these beliefs on his

children to the detriment of Mother. {¶39} Following review, we find that Father's constitutional rights w ere not violated or improperly considered in the trial court's decision. In thi s case, the trial court only referenced Father's religious beliefs in order to protect the b est interests of the children, which is permissible under Pater . In this case, the trial court's entry states: The Court finds the Guardian ad litem's report to be instructiv e and verified by the testimony adduced at trial. The children l ove each parent and are adjusting to the emotional turmoil of separation and divorce. [Mother's] concerns about the potentia l influence of [Fathers'] church (Transformation Christian Church ) [are] valid, given its tenet of intolerance regarding divorce. This is evidenced by the children's inappropriate comments to their mother, rationalized by their father as consistent with biblica l teaching. The parenting schedul e ordered herein will give [Mother] the opportunity to choose the children's church on her parenting Sundays and expose the children to alternative Christian teaching and principles. {¶40} In so doing, the trial court did not violate Father's rights to freedom of religion or deprive him of his fundamental rights to educate his childre n. The trial court merely noted Mother's concern and the way these beliefs may affect the child ren's general welfare. {¶41} Finally, Father summarily asserts that Mother once shared the s ame religious beliefs and "[i]f the Court is to consider [Father's] faith and its impact on the children, [it]Fayette CA2019-05-008 CA2019-05-009

- 12 - should do so for the [Mother]." However, following review, we find the trial court did not err in its handling of the religious matters in this case, an issue that was very much the focus of Father's case. Father's fifth assignment of error is withou t merit and is overruled. {¶42} Assignment of Error No. 6: {¶43} THE TRIAL COURT ERRED BY FAILING TO ISSUE FINDINGS OF FACT

AND CONCLUSIONS OF LAW WHEN NOT GRANTING AN ADDITIONAL DEVIATIO N TO

CHILD SUPPORT EVEN THOUGH APPELLANT WAS GRANTED IN EXCESS OF 14 7

OVERNIGHTS. {¶44} In his sixth assignment of error, Father argues the trial court erred by failing to issue findings of fact and conclusions of law after not allo wing a deviation under R.C. 3119.231. We sustain Father's sixth assignment of error. {¶45} In the present case, the trial court ordered a ten percent devi ation as Father's parenting time exceeded 90 days as provided in R.C. 3119.051. However, on March 28, 2019, shortly before the final judgment entry, R.C. 3119.231 be came effective. R.C. 3119.231 provides: (A) If court-ordered parenting time exceeds ninety overnights per year, the court shall consider whether to grant a deviation pursuant to section 3119.22 of the Revised Code for the reason set forth in division (C) of section 3119.23 of the Revised Cod e. This deviation is in addition to any adjustments provided under division (A) of section 3119.051 of the Revised Code. (B) If court-ordered parenting time is equal to or exceeds one hundred forty-seven overnights per year, and the court does not grant a deviation under division (A) of this section, it shall specify in the order the facts that are the basis for the court’s decis ion. {¶46} Thus, R.C. 3119.231(A) provides for an additional deviation alo ng with the deviation contained in R.C. 3119.051 and, if the overnight pare nting time exceeds the overnights contained in R.C. 3119.231(B) and is not granted a d eviation, the trial court "shallFayette CA2019-05-008 CA2019-05-009

- 13 - specify in the order the facts that are the basis for the court ’s decision." {¶47} It is undisputed that Father's parenting time exceeds 147 overn ights per year. However, the trial court's entry did not grant Father the addit ional deviation and thus was required to "specify in the order the facts that are the basis for the court’s decision" to satisfy R.C. 3119.231(B). Since these findings were not made, we susta in Father's sixth assignment of error. {¶48} Cross-Assignment of Error No. 1: {¶49} THE TRIAL COURT ERRED BY IMPUTING A WAGE OF $42,000 TO

APPELLEE. {¶50} In her first cross-assignment o f error, Mother alleges the tria l court erred by imputing $42,000 in income. The record indicates that Mother, a former schoolteacher, lost her job when she surrendered her license after there were repor ts she had an inappropriate relationship with a student. We find Mother's argument is with out merit. {¶51} A trial court's decision specific to whether a parent is volunt arily underemployed will not be disturbed on appeal absent an abuse o f discretion. McLaughlin

v. Kessler , 12th Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, ¶ 14. For an unemployed or underemployed parent, income is the "sum of the g ross income of the parent and any potential income of the parent." R.C. 3119.01(C)(5)(b) . Potential income includes imputed income that a trial court determines the parent would h ave earned if fully employed based upon the criteria set forth in R.C. 3119.01(C)(11)(a)(i)- (xi), which includes the parent's prior employment experience, education, skills and tra ining, employment availability, and local wages. Daniel v. Hester , 12th Dist. Butler No. CA2016-02-037, 2016- Ohio-7543, ¶ 12. Before a trial court may impute income to a p arent, however, it must first find that the parent is voluntarily unemployed or voluntarily u nderemployed. R.C.Fayette CA2019-05-008 CA2019-05-009

- 14 - 3119.01(C)(11); Kessler at ¶ 13. The parent who claims the oth er parent is voluntarily underemployed bears the burden of proof. Reynolds-Cornett v. Reynolds , 12th Dist. Butler No. CA2013-09-175, 2014-Ohio-2893, ¶ 10. {¶52} Following review, we find the trial court did not abuse its dis cretion by imputing $42,000 as Mother's income. In this case, the trial court foun d that Mother was voluntarily underemployed. The record reflects that Mother's 2013 tax retu rn shows that she earned a salary of $42,000. Though Mother no longer holds a license t o teach, she holds a master's degree in education and testified about certain job opportuniti es that she was seeking, even without the licensure. In fact, Mother testified that she was "very confident" in her "abilities to procure not even just another job, but another job with my d egrees." Furthermore, the trial court indicated that Mother is currently pursuing additio nal educational opportunities and that she has no mental or physical problems that would prev ent her from obtaining and maintaining employment. Accordingly, we find the trial court d id not abuse its discretion by imputing Mother's income as $42,000. Mother's first cross-assi gnment of error is overruled. {¶53} Cross-Assignment of Error No. 2: {¶54} THE MAGISTRATE COMMITTED PLAIN ERROR IN ALLOWING THE

DEPOSITION OF L.R. TO BE USED AS EVIDENCE AND THE TRIAL COURT A BUSED

ITS DISCRETION IN ALLOWING THE MAGISTRATE'S DECISION ON THIS IS SUE TO

STAND. {¶55} In her second cross-assignment of error, Mother argues the tria l court erred by allowing the deposition of L.R., the student she allegedly h ad an inappropriate relationship with, to be admitted in lieu of live testimony. H owever, based on the trial court's decision, Mother concedes that "it would appear this issue is m oot." Furthermore, we find that any such error was harmless, as the trial court's decision would have likely been theFayette CA2019-05-008 CA2019-05-009

- 15 - same without the inclusion of the deposition. In this case, Mo ther was granted custody of the children and the trial court awarded appropriate parenting time. Mother does not contest the award of custody or the amount of parenting time. {¶56} It is well established that an error in the admission of eviden ce only warrants a reversal if the error prejudices the appealing party. Banford v. Aldrich Chem. Co. Inc ., 126 Ohio St.3d 210, 2010-Ohio-2470, at ¶ 38; Beard v. Meridia Huron Hosp ., 106 Ohio St.3d 237, 2005-Ohio-4787, at ¶ 20. If a factfinder probably w ould have arrived at the same decision absent the occurrence of the error, then the error is harmless and will not justify

reversal. Hayward v. Summa Health Sys./Akron City Hosp ., 139 Ohio St. 3d 238, 2014- Ohio-1913, ¶ 25; Theobald v. Univ. of Cincinnati , 10th Dist. Franklin No. 02AP-560, 2005- Ohio-1510, ¶ 17 ("[w]hen avoidance of the error would not have changed the outcome of the proceedings, then the error neither materially prejudices t he complaining party nor affects a substantial right of the complaining party"). As a r esult, we overrule Mother's second cross-assign ment of error. {¶57} Judgment affirmed in part, reversed in part, and remanded.

HENDRICKSON, P.J., and M. POWELL, J., concur.