[Cite as Leach v. Leach , 2020-Ohio-1181.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

JOSEPH R. LEACH, Appellant,

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AMANDA R. LEACH NKA DAVIS, Appellee. :

:

:

:

:

: CASE NO. CA2019-06-092

O P I N I O N

3/30/2020

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR2014-03-0262

Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for appe llant Scott N. Blauvelt, 315 South Monu ment Avenue, Hamilton, Ohio 45 011, for appellee Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, guardian ad litem

PIPER, J. {¶ 1} Appellant, Joseph Leach ("Father"), appeals a decision of the B utler County Court of Common Pleas, Domestic Relations Division, denying his motion to become residential parent of his three children for purposes of school ing. {¶ 2} Father and appellee, Amanda Davis ("Mother"), were married and had threeButler CA2019-06-092

- 2 - children. During the marriage, Father had problems with alcoho l consumption and anger. Mother sought and was granted a domestic violence protection or der against Father, which included protection of the children. After the couple's divorc e, Mother was named residential parent and the parties had a shared parenting agree ment. {¶ 3} The parties' three children, all of school age, have had challe nges with school and attendance to varying degrees. The oldest child, who is in high school, has failed several classes and questions remain as to whether she will be able to graduate on time. The middle child has also received low grades in several classe s and has had attendance problems. The youngest child has fallen behind in some classes , including math, and has attendance problems. {¶ 4} Father filed multiple motions with the court, including a motio n to modify shared parenting and one to be named the residential parent for school purposes. A magistrate held a hearing during which several witnesses testif ied, including the guardian ad litem ("GAL") who had been assigned to the case. The GAL, w ho also submitted a report, recommended that Mother remain the residential parent f or purposes of schooling. Father's witnesses testified that he has a good relationship wi th the children and that he

works with them on their schoolwork. In addition to the hearin g, the magistrate also

conducted an in camera interview of the three children. {¶ 5} Upon completion of the hearing, the magistrate asked the partie s to submit proposed findings of fact and conclusions of law. The magistra te then issued a decision naming Father as the residential parent for school purposes, us ing Father's proposed facts almost verbatim. Mother filed objections to the magistrate's d ecision and the trial court performed an independent review of the record. The trial court overturned the magistrate's decision, sustained Mother's objections, and ordered that Mothe r remain the children's residential parent. The trial court did, however, modify visit ation so that Father had moreButler CA2019-06-092

- 3 - time with the children. Father now appeals the trial court's d ecision overruling the magistrate's initial order, rai sing the following assignment of error for review: {¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERTURNED

THE DECISION OF THE MAGISTRATE NAMING APPELLANT THE RESIDENTIAL

PARENT FOR SCHOOL PURPOSES. {¶ 7} Father argues within his assignment of error that the trial cou rt erred in overturning the magistrate's decision because the trial court f ailed to properly consider best interest factors and did not give deference to the magistrate's credibility determinations. {¶ 8} Changing the residential parent for school purposes is a modifi cation of a term to the shared parent plan and is governed by R.C. 3109.04(E)(2) (b). In re E.L.C. , 12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 42. Pursuant to th at statute, the court may modify the terms of the shared parenting plan if such modificat ion is in the best interest of

the children. {¶ 9} In determining the best interest of a child, R.C. 3109.04(F)(1) requires the court to consider all relevant factors including, (1) the wishe s of the child's parents regarding the child's care, (2) the wishes and concerns of the child, as expressed to the court, if the court conducted an in camera interview, (3) the child's interac tion and interrelationship with the child's parents, siblings, and any other person who may sig nificantly affect the child's best interest, (4) the child's adjustment to the child's home, school, and community, and (5) the parent more likely to honor and facilitate court-approved p arenting time rights or visitation and companionship rights. R.C. 3109.04(F)(1)(a) thr u (d), and (f). No one factor is dispositive, and the court has discretion to weigh the facto rs "as it sees fit." Carr v. Carr , 12th Dist. Warren Nos. CA2015-02-015 and CA2015-03-020, 2016-Oh io-6986, ¶ 22. {¶ 10} The court's determination regarding its best interest finding w ill not be

reversed absent an abuse of discretion. In re T.G.O. , 12th Dist. Madison No. CA2016-02-Butler CA2019-06-092

- 4 - 009, 2017-Ohio-151, ¶ 13-15. An abuse of discretion implies th at the court's attitude was unreasonable, arbitrary, or unconscionable. In re B.K. , 12th Dist. Butler No. CA2010-12- 324, 2011-Ohio-4470, ¶ 12. This highly deferential standard of review rests on the premise that the trial court is in the best position to determine the c redibility of witnesses given the ability to observe the witnesses' demeanor, gestures, and attit ude. Rarden v. Rarden , 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10. {¶ 11} 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. Heinbaugh v. Napier, 12th Dist. Brown No. CA2013-10-010, 2014-Ohio3548. See also Hart v. Spenceley , 12th Dist. Butler No. CA2011-08-165, 2013-Ohio-653, ¶ 16 (affirming the trial court's decision in which it did not defer to the magistrate's credibility and factual determinations and instead performed a de novo revi ew). 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. {¶ 12} The record indicates that the magistrate incorporated Father's findings of fact into its written decision and then balanced the factors using t hose facts to find that Father should be named residential parent for purposes of schooling. However, the trial court independently reviewed the record, including the transcript of testimony, and determined that information provided by Father's witnesses should not carr y much weight given that the witnesses testified that they had limited interaction with the children and Father during their time together.Butler CA2019-06-092

- 5 - {¶ 13} The trial court noted that its decision to give the testimony " limited weight" was not a matter of credibility, but instead, was because the witne sses' interaction with Father when he was with the children "was either sporadic or in a larg er group of people." Thus, the trial court did not fail to take into consideration the mag istrate's credibility determination as Father suggests, but rather, used the information contained in the record to determine that the witnesses' testimony should not be given more weight t han it deserved given the

limited interaction between the witnesses and the children when the children were with

Father. {¶ 14} During its balancing of the factors, the trial court considered that Father wanted to be named residential parent for purposes of schooling for the children so that he could take a larger role in the children's education, while Mot her wanted to remain residential parent for school purposes. {¶ 15} Regarding the wishes and concerns of the children, as expressed to the court, the court reviewed the interview conducted of each child by the magistrate. The court found that each child was capable of expressing her wishes. 1 The court also considered the GAL's report, which recommended that Mother remain residential parent for purposes of schooling. {¶ 16} Regarding the children's interaction and interrelationship with the people in their lives, the court considered Father's contention that the children were not properly pursuing their education while with Mother and also suffered fr om hygiene issues while in

Mother's care. Father's witnesses testified that the children smelled of pet feces and urine after coming from Mother's care. However, and as noted by the trial court, these witnesses did not "testify regarding a time frame or rate of occurrence" to establish the hygiene issues.

1. This court has examined the transcript of the interview with th e children and has given it proper weight when reviewing the trial court's balancing of factors. However , we will not publish the contents of the interview.Butler CA2019-06-092

- 6 - While the magistrate gave great weight to the hygiene issue, th e court did not consider the evidence "significant to find a danger to the health of the chi ldren." Otherwise, the court determined that the children have a "close relationship" with M other and members of the extended family on both sides. {¶ 17} Regarding the children's adjustment to their home, school and c ommunity, the court considered that the children have attended Edgewood schoo ls. While Father introduced school records indicating attendance problems for th e children and low grades, Mother testified that she has assisted the children with improv ement. Specifically, Mother made efforts to obtain tutoring for one of the children, and as sistance for the eldest child in

her schoolwork. {¶ 18} The court noted positive attributes of the children's involveme nt with their school and community, including that the eldest child is involv ed with the local fire department's Chief Explorer program and wants to pursue a caree r in firefighting. The court also found that the two younger children are well adjusted to t heir community, including

involvement in extracurricular activities. {¶ 19} Regarding the parent more likely to honor and facilitate court- approved parenting time rights or visitation and companionship rights, t he court considered that neither party appears to communicate regarding the children unl ess necessary. Mother testified that Father becomes "demeaning and demanding" when di scussing the children with her. Ultimately, the trial court decided that Mother "has been the parent most likely to compromise and facilitate the other parent's rights." {¶ 20} We find that the trial court properly performed a thorough revi ew of the record, including a proper balancing of best interest factors, and did not abuse its discretion in ordering that Mother remain the children's residential parent f or school purposes. Thus, Father's single assignment of error is overruled.Butler CA2019-06-092

- 7 - {¶ 21} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.