[Cite as In re B.D. , 2021-Ohio-3792.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y

IN THE MATTER OF: B.D. CASE NO. 2021-L-030

Civil Appeal from the Court of Common Pleas, Juvenile Division

Trial Court No. 2019 CV 000976

O P I N I O N Decided: October 25, 2021 Jud g ment: Affirmed

Kenneth J. Cahill , Dworken & Bernstein Co., LPA, 60 South Park Place, Painesvill e, OH 44077 ( For Appellant )

. A nn S. Bergen , 24 Public Square, Willou g hb y , OH 44094 ( For Appellee )

. JOHN J. EKLUND, J. {¶1} Mark Dombrowski (“Appellant”) appeals the February 8, 2021, jud gment entry of the Lake County Common Pleas Court, Juvenile Division, declining to grant Appellant’s shared parenting plan, ordering Appellant to pay $9 00.22 per month for child support, and the court’s denial of two unopposed motions for co ntinuance. Finding no reversable error, we affirm. {¶2} Appellant filed a pro se custody complaint against Appellee on September 3, 2019. The complaint was amended on September 12 to provide a prayer for relief “[t]o grant joint custody and restricting my son to Lake County to pr event Ashley Johnson from2 Case No. 2021-L-030 taking my son away from me.” Appellee filed a counterclaim seek ing to be designated as the residential parent and legal custodian of the minor child, B.D. DOB 4/11/2018. Appellee also requested an order establishing child support ret roactive to B.D.’s date of birth. {¶3} The court held pretrial hearings on November 4, 2019, January 1 5, 2020, March 18, 2020 (remote), and June 10, 2020 (remote). The court held a trial management conference on September 15, 2020 (remote), and the trial on Oct ober 5, 2020. The record reflects that at the in person pretrials, Appellant waived his right to have counsel present. 1 {¶4} On September 14, 2020, Appellant hired counsel who filed a noti ce of appearance and attended the remote September 15 trial managemen t conference. On September 21, Appellant filed a motion to continue the October 5 trial date citing a previously scheduled court appearance in Lake County Domestic R elations Court. The motion for continuance was unopposed by the Guardian ad Litem a nd Appellee. On October 2, the court denied the motion for continuance and the matter proceeded to trial. {¶5} At the October 5 trial, Appellant sought an oral continuance of the hearing. Counsel for Appellant related that he had been scheduled for a trial in Domestic Relations Court for that same day and stated that matter had been continu ed at the request of opposing counsel at 9:00 pm the night before due to illness. Co unsel had only been retained on the matter for three weeks and the Appellant had no t sought any prior continuances. Appellant’s September 21 and October 5 requests f or continuance were unopposed by Appellee and the Guardian ad Litem. Appellant’s co unsel noted that he

was

1 Pretrial hearings held after January 15, 2020, were conducted remotely due to the COVID-19 pandemic.3 Case No. 2021-L-030 ready to schedule this as soon as possible. I realize that this court has an obligation to move its docket, especially in the circumstances with the virus that we’ve had to deal with. But, at the same time, that must be tempered with a client’s, a litigant’s right to have a full and fair hearing, to be represe nted by counsel of his choosing, and especially if I am ready to reset this as soon as possible. Appellant cited In re B.D. , 11th Dist. Lake Nos. 2009-L-003 and 2009-L-007, 2009-Ohio2299 in support of his requests for continuance. {¶6} The trial court said that In re B.D. was distinguishable from Appellant’s case and further referenced that Appellant’s initial pro se complain t did not contain a prayer for relief until it was amended nine days later to request “joint c ustody.” The court noted that October 5, 2020, was 13 months past when this case was originated. * * * Additionally, this trial date has been pending since June 11, i t was scheduled. So I get the fact that you got on the case late, I think September 14th, but I think the correct thing to do wou ld have been file a provisional notice of appearance and based on the court continuing the matter. After denying the oral motion to continue, the trial proceeded and both parties presented their cases. The trial court issued a post-hearing or der taking the matter under advisement and allowed Appellant fourteen days to file his shar ed parenting plan. Appellant timely filed the shared parenting plan on October 8, 2020. {¶7} In its November 10 Magistrate’s Decision, the trial court did n ot consider shared parenting. The magistrate made this decision because of the Appellee’s opposition and because of due process concerns caused by Appell ant’s failure to file the proposed shared parenting plan 30 days prior to trial as requir ed by 3109.04(G). Appellant timely objected to the magistrate’s decision and the trial cour t adopted the Magistrate’s Decision in full on February 8, 2021. Appellant timely filed th is appeal.4 Case No. 2021-L-030 {¶8} Appellant’s first assignment of error states: {¶9} “[1.] The Trial Court Erred by not granting Appellant-Father’s Motion for Continuance.” {¶10} Juv.R. 23 governs continuances in juvenile court and states tha t “[c]ontinuances shall be granted only when imperative to secure fair treatment for the parties.” Lake County Juvenile Court Local Rule I(C)(3)(b) sta tes that “[n]o case assigned for trial may be continued except on written motion, subject to the approval of Court.” An appellate court will not reverse a trial court’s decision to de ny a motion to continue unless the trial court has abused its discretion. In re Kangas, 11th Dist. Ashtabula No. 2006–A– 0010, 2006–Ohio–3433, ¶ 24. “The term ‘abuse of discretion’ is one of art, connoting judgment exercised by a court which neither comports with reaso n, nor the record.” State v. Underwood , 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208 [2009 WL 117705 0], ¶ 30, citing State v. Ferranto , 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia , 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, 2014 WL 2 881994, ¶ 9. Stated differently, an abuse of discretion is “the trial court’ s ‘failure to exercise sound, reasonable, and legal decision-making.’” Id. , quoting State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide the issue differentl y is enough to find error[.] * * * By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reache d a different result is not enough, without more, to find error.’” Id. , quoting Beechler at ¶ 67.5 Case No. 2021-L-030 {¶11} “To determine whether a trial court abused its discretion by de nying a motion for continuance, a reviewing court must consider (1) the length of the requested delay, (2) prior continuances requests/received, (3) the presen ce or absence of legitimate reasons for the requested delay, (4) the appellant’s contributi on to the circumstances giving rise to the request for delay, and (5) any other relevan t factors. State v. Unger , 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981). While these facto rs provide basic guidance, a reviewing court must be mindful that “‘[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to v iolate due process. The answer must be found in the circumstances present in every case , particularly in the reasons presented to the trial judge at the time the request is denied.’” Unger at 67, quoting Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). {¶12} Although Appellant cites In re B.D. , 11th Dist. Lake No. 2009-L-003, 2009- Ohio-2299, in support of his position, this case is distinguish able in several key points. In re B.D. involved an appeal of a permanent custody hearing. The father and mother in that case requested certain discovery materials which the Lake Count y Department of Jobs and Family Services did not timely produce until the court orde red an in camera review where it determined that the materials were “‘necessary and rel evant to the pending action’” and “‘necessary to ensure due process.’” Id. at ¶ 51. However, the parties were not afforded an opportunity to review the materials until the d ay of the hearing. Id. Both parties moved for a continuance to permit adequate review of th e records. Instead, the court granted a recess of two hours to allow a review of the do cuments. Id. at ¶ 52. After the recess, the parties again moved for a continuance as they w ere only able to review one-third of approximately 1500 documents. Id.6 Case No. 2021-L-030 {¶13} The trial court overruled the requests stating that one of the best defense attorneys in Lucas County had routinely practiced without looki ng at discovery documents or discussing matters with his clients. The trial court further said that “99.9 percent” of the documents “are not relevant to the issues that the Court has to consider anyway.” Id. at ¶ 53, 55. {¶14} This court determined that under the above circumstances, it wa s an abuse of discretion to deny a request for a continuance. This was bec ause “nothing in the record indicates that the trial court conducted a review of the docume nts, two-thirds of which counsel had insufficient time to review.” Id. at ¶ 65. Further, the trial court implied as a supplementary basis for overruling the motions that “full and c areful preparation for a case is a mere luxury that ‘accomplished’ lawyers do not need. In ef fect, the trial court’s anecdote was a recognition that counsel would be forced to defe nd their clients with, at best, partial preparation.” Id. at ¶ 66. The trial court’s denial of a continuance served to “deprive appellants’ o f their ability to fully protect their es sential rights” and we found merit in the assigned error. {¶15} Here, Appellant’s case is not so egregious; however, the court recognizes that the so-called Unger factors are mixed. Appellant requested only a short delay and had requested no prior continuances. The reason for the delay w as a scheduling conflict with Appellant’s attorney as well as the short time counsel had been on the case. The other parties did not object to the continuance. However, Appel lant is ultimately responsible for the circumstances giving rise to the request fo r the continuance. Appellant filed a pro se complaint and waited nearly thirteen months to h ire counsel. Further, the court set the trial date in J une, allowing Appellant sufficient time to hire counsel between7 Case No. 2021-L-030 June and the October trial date. Finally, Juv.R. 23 provides a high bar to granting continuances, stating that a continuance “shall be granted only when imperative to secure fair treatment for the parties,” while the local rules of the j uvenile court require all continuances to be upon written motion. {¶16} Appellant also argues that the court abused its discretion in d enying his motion because he did not receive exhibits until the day of tri al. However, Appellant did not raise any objection to this prior to trial. Instead, Appell ant raised this issue as an objection to the admission of exhibits during the trial itself. Therefore, the trial court could not have abused its discretion in denying a motion to continue relative to the availability of exhibits when their absence was not cited as a basis for con tinuance. See Ungar,
supra, at 589. {¶17} After considering the Unger factors in the record, we do not find that the trial court abused its discretion. {¶18} Accordingly, Appellant’s first assignment of error is without m erit. {¶19} The second assignment of error states: {¶20} “[2.] The trial court erred by failing to consider Appellant-Fa ther’s Proposed Shared Parenting Plan.” {¶21} Appellant argues that the trial court should have considered th e Proposed Shared Parenting plan that was filed on October 8, 2020, despit e it not being submitted thirty days prior to trial as required by statute. {¶22} Ohio Revised Code Section 3109.04(G) requires that a “plan for shared parenting shall be filed * * * at a time at least thirty days p rior to the hearing on the issue of the parental rights and responsibilities for the care of the children.” Although the8 Case No. 2021-L-030 requirement of the statutory language is clear, Appellant cites cases from sister districts where some Ohio appellate courts have held that R.C. 3109.04(G) was not intended by the legislature to divest the trial court o f a reasonable degree of flexibility in considering shared parenting plans. Within its discretion, the trial court may relieve a party of the statutory deadline and grant a party's request to file a shared parenting plan within thirty days prio r to the hearing. We also agree * * * that the statutory deadline implicates [the party's] right to due process. The critical inq uiry is thus whether [the party] had an adequate opportunity to respond to the plan so that her due process right was protected. Clouse v. Clouse , 3d Dist. Seneca No. 13-08-40, 2009-Ohio-1301, ¶ 36, quoting Harris v. Harris , 105 Ohio App.3d 671, 674, 664 N.E.2d 1304 (2d Dist. 1995). However, even in the cases cited by Appellant, it is within the trial court’s discretion to relieve a party of this statutory deadline. Absent an abuse of discretion, a reviewing court will not disturb the decision of a lower court. {¶23} In this case, the magistrate’s post-hearing order allowed the A ppellant to file the Motion for Proposed Shared Parenting plan and to provi de legal authority to submit a proposed plan “once all evidence has been presented.” The Ma gistrate’s November 10, 2020, Decision determined that it would “not consider Share d Parenting” because of due process concerns resulting from Appellee presenting her cas e to the court before Appellant filed his shared parenting plan. In the February 8, 2 021, Judgment Entry adopting the magistrate’s decision, the court ruled that “Fathe r’s motion for Shared Parenting filed October 8, 2020, is not well-taken and denied.” {¶24} Although some Ohio appellate courts have held that it is within the trial court’s discretion to exercise flexibility in applying R.C. 310 9.04(G), this flexibility is limited to the parties’ right to due process. Here, although the trial court provided leave to9 Case No. 2021-L-030 Appellant to submit the shared parenting plan after the trial’s conclusion, the court was under no legal obligation to accept the proposed plan after the deadline. Indeed, the trial court ultimately declined to consider the proposed shared paren ting plan because it was submitted after the conclusion of the hearing and because its inclusion would c reate due process concerns for the Appellee. The cases cited by Appellant state that courts have the discretion to exercise a “r easonable degree of flexibility in considering shared parenting plans” filed outside of the statutory deadline. Harris, supra , at 674. However, it is not abuse of discretion when merely declining to grant that flexibility. {¶25} Accordingly, Appellant’s second assignment of error is without merit. {¶26} The third assignment of error states: {¶27} “[3.] The trial court erred in ordering Father to pay $900.22 p er month as to child support.” {¶28} Appellant argues that the trial court abused its discretion in setting the monthly child support payment amount at $900.22. {¶29} A court reviews child support decisions under an abuse of discr etion standard. In re Sullivan , 167 Ohio App.3d 458, 2006-Ohio-3206, 855 N.E.2d 554, ¶ 12 (11th Dist.), citing Booth v. Booth , 44 Ohio St.3d 142, 144, 541 N.E.2d (1989). “‘[C]ommon sense and fundamental fairness compel the ap plication of the “abuse of discretion” standard in reviewing matters concerning child support* * *.’” Id., quoting Booth. {¶30} Appellant claims that the trial court could have allocated more parenting time to Appellant which would save money that Appellee spends o n childcare expenses. However, Appellant’s argument is dependent on Appellant’s mothe r to provide regular10 Case No. 2021-L-030 childcare. Although there was trial testimony indicating that A ppellant’s mother was willing to provide childcare, Appellee testified at trial that Appellan t’s mother was not in favor of watching B.D. daily for the next few years. {¶31} Significantly, this assignment calls upon the court to question Appellee’s decision to place B.D. in childcare and the costs associated wi th it. As the sole legal custodian of B.D., Appellee is entitled to place B.D. in daily childcare and undue scrutiny by the court would infringe upon Appellee’s right to parent her child. See In re Davis , 7th Dist. Mahoning No. 02-CA-95, 2003-Ohio-809, ¶ 15, citing Troxel v. Granville , 530 U.S. 57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Appellant doe s not claim that the trial court incorrectly calculated any aspect of the parties’ income or expenses. Instead, Appellant characterizes the childcare expense as “unnecessary.” Based on the evidence at trial and the monthly income and expenses of the parties, th is Court finds nothing in the record to indicate that the trial court’s calculation of ch ild support was an abuse of discretion. {¶32} Accordingly, Appellant’s third assignment of error is without m erit. {¶33} For the foregoing reasons, the judgment of the Lake County Comm on Pleas Court, Juvenile Division, is affirmed.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.