[Cite as Faulks v. Flynn, 2014-Ohio-1610.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

TRACIE R. FAULKS, : Case No. 13CA3568 

 Plaintiff-Appellant, : 

v. : DECISION AND

 JUDGMENT ENTRY

WILLIAM A. FLYNN, : 

 Defendant-Appellee. : RELEASED: 4/9/14 

______________________________________________________________________ 

APPEARANCES: 

Richard E. Wolfson, Portsmouth, Ohio, for appellant. 

Matthew F. Loesch, Portsmouth, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Tracie Faulks appeals from a judgment terminating a shared parenting 

plan that had been adopted by the trial court in conjunction with her divorce decree. 

The new order designated her former husband, William A. Flynn, as the legal custodian 

and residential parent of the parties’ minor child, William, and granted her parenting 

time in accordance with the court's local rule. 

{¶2} First, Faulks argues that the trial court erred by terminating shared 

parenting rather than deciding Flynn’s motion to modify custody. Implicit in that 

argument is the assumption that the court had previously terminated shared parenting 

and awarded her custodial status. Faulks forfeited or waived this argument by failing to 

raise it in her objections to the magistrate’s decision. Moreover, she does not claim or 

establish plain error in that regard. 
Scioto App. No. 13CA3568 2

{¶3} Next, Faulks argues that the trial court erred by failing to conduct an 

independent de novo review of the magistrate’s decision after she filed timely 

objections. Because Faulks has not affirmatively demonstrated that the trial court failed 

to perform an independent analysis of the objections, we reject her argument. 

{¶4} Finally, Faulks claims that Loc.R. 6.0 of the Scioto County Court of 

Common Pleas, Domestic Relations Division, which sets forth a standard visitation 

schedule, is unconstitutionally burdensome for parties like her and Flynn, who live 

several states apart. Because Faulks did not raise this issue in the trial court and does 

not claim plain error, we will not consider it. 

{¶5} Therefore, we overrule Faulks’s assignments of error and affirm the 

judgment of the trial court. 

I. FACTS 

{¶6} The parties were married in 1997, and had a son, William, in 1998. After 

Faulks filed for divorce from Flynn in 2002, the parties filed a shared parenting plan, 

which was adopted by the trial court when they were divorced in November 2003. 

Under the shared parenting decree, Faulks was the residential parent for school 

purposes, and Flynn had parenting time every other weekend during the school year. 

{¶7} In 2005, Flynn remarried. In April 2008, Flynn filed a motion to cite Faulks 

in contempt and a motion to reallocate parental rights and responsibilities. In July 2008, 

Faulks filed a notice of intent to relocate with the parties’ son to South Daytona Beach, 

Florida. She wanted to move to Florida to be with her boyfriend, who lived and worked 

there, and because of better business opportunities. In August 2008, the trial court 

denied Flynn’s motion for contempt, ordered that Faulks would remain the residential 
Scioto App. No. 13CA3568 3

parent of the parties’ son, permitted Faulks to relocate with the child to Florida, and 

awarded Flynn parenting time pursuant to Loc.R. 6.0. 

{¶8} Because her job prospects in Florida were not as bright as she had 

expected, Faulks and the parties’ son moved back to Ohio less than a year later. 

During that time, the parties’ son experienced several problems at school, including 

suspensions and unexcused absences. He was also disruptive in class. After the 

parties reached an agreement in which Flynn would have parenting time every other 

weekend and in accordance with Loc.R. 6.0, the trial court adopted the agreement as 

an order of the court. 

{¶9} In August 2010, Faulks and the parties’ son moved back to Daytona 

Beach, Florida and lived with her then boyfriend. Faulks did not notify the trial court that 

she and the parties’ son were relocating to Florida. The parties’ son continued to 

experience trouble in school, including talking out in class. He was diagnosed as 

suffering from attention deficit hyperactivity disorder (“ADHD”) and was initially 

prescribed Adderall, but his problems at school did not stop. 

{¶10} Eventually, Faulks’s boyfriend asked her to decide between him and her 

son, and Faulks chose her son and moved to an apartment in Orlando, Florida in 

January 2012. At that time, Faulks had the parties’ son placed in a school in Orlando, 

which was the child’s third school in three years. Faulks and the parties’ son then 

moved to another apartment in the same school district in November 2012, her fifth 

move with the child since 2008. According to Flynn, Faulks refused to give him access 

to their son’s school and medical records. According to Faulks, the parties’ son’s school 

behavior improved when doctors prescribed a new medication for his ADHD. 
Scioto App. No. 13CA3568 4

{¶11} In August 2012, Flynn filed a motion to modify custody, for an interim 

order, and for an in camera interview. In March 2013, a trial court magistrate 

interviewed the child and held a hearing at which the parties presented evidence. At the 

hearing, Flynn had counsel, but Faulks proceeded pro se. Faulks testified that 

notwithstanding the trial court’s August 2008 judgment indicating that she would remain 

the residential parent of the parties’ son and granting Flynn parenting time, she agreed 

the trial court’s 2003 shared parenting order remained in effect. Flynn similarly testified 

that his shared parenting rights had never been terminated. 

{¶12} The magistrate issued a decision recommending that the trial court 

terminate the shared parenting plan, designate Flynn the legal custodian and residential 

parent of the parties’ son, and grant Faulks parenting time pursuant to Loc.R. 6.0 of the 

Scioto County Court of Common Pleas, Domestic Relations Division. The magistrate’s 

decision included the following pertinent findings of fact: 

2. It should be noted that while the parenting time for the parties has been 

modified by way of Entries dated August 27, 2008 and February 25, 2010, 

the original Shared Parenting Plan approved by the Court on November 

14, 2003 remains in effect and has never been terminated. 

* * * 

17. The evidence at the hearing made it readily apparent that there is still 

a great deal of animosity and lack of trust between the Father and Mother. 

There is little to no contact between the parties and the limited contact that 

takes place appears to be adversarial in nature. Stated another way, a 

shared parenting plan is not a realistic alternative at this time. 

* * * 

27. Of significant concern to the Court, is the apparent lack of stability for 

the Mother. The Mother has moved no less than five (5) times since 2008 

including a move to Florida in 2008, a move back to Ohio in 2009, and 

another move back to Florida where she currently resides. 
Scioto App. No. 13CA3568 5

28. Also of significant concern to the Court is the minor child’s academic 

progress, his behavior at school, and his attendance at school. The 

school records presented by the Father clearly show that the minor child 

has struggled in school with grades, discipline issues, and attendance. 

While the Mother did submit correspondence from the current school, the 

Court remains concerned that the minor child continues to struggle 

academically while in the care and custody of the Mother. 

29. The Court finds that the minor child has attended three different 

schools in the past three years while in the care of the Mother. The Court 

finds that the minor child has been unable to adequately adjust to his 

school environment due in large part to the constant moving of the Mother. 

{¶13} The magistrate further concluded that “[w]hile a change of circumstances 

is not necessary to terminate a shared parenting plan under Ohio law, * * * a substantial 

change of circumstances has occurred since this shared parenting plan was approved 

and adopted by this Court and * * * termination of the shared parenting plan is in the 

best interests of the minor child.” 

{¶14} The trial court adopted and approved the magistrate’s decision and issued 

an order consistent with the magistrate’s recommendation that same day. However, 

Faulks filed timely pro se objections to the magistrate’s decision, which appeared to set 

forth her version of the pertinent facts; she also filed a transcript of the magistrate’s 

hearing. The trial court overruled Faulks’s objections, adopted the magistrate’s findings 

of fact and conclusions of law, terminated the shared parenting plan previously 

approved by the court, designated Flynn as the legal custodian and residential parent of 

the parties’ child, and granted Faulks parenting time pursuant to Loc.R. 6.0. 

II. ASSIGNMENTS OF ERROR 

{¶15} Faulks assigns the following errors for our review: 

I. The trial court erred at law by terminating shared parenting rather than 

considering the motion to modify custody filed by Defendant-Appellee. 
Scioto App. No. 13CA3568 6

II. The trial court failed to conduct a de novo review with greater scrutiny 

of the magistrate’s decision upon Plaintiff’s filing timely objections. 

III. Scioto County D.R. Local Rule 6 is unconstitutionally burdensome for 

parties living several states apart and thus not in the best interests of the 

child; a violation of the Appellant’s parental right; and an abuse of 

discretion. 

 

III. LAW AND ANALYSIS 

A. Termination of Shared Parenting 

{¶16} In her first assignment of error, Faulks asserts that the trial court erred by 

terminating shared parenting rather than deciding Flynn’s motion to modify custody. 

Faulks claims that the trial court’s April 2008 judgment, which authorized her to move to 

Florida with the parties’ child the first time and granted Flynn parenting time constituted 

a constructive termination of the shared parenting decree so that the trial court should 

have applied a change-of-circumstances standard rather than a best-interests standard 

to its latest determination. 

{¶17} A party forfeits or waives the right to challenge the trial court’s adoption of 

a factual finding or legal conclusion unless the party objects in accordance with Civ.R. 

53(D)(3)(b). Civ.R. 53(D)(3)(b)(iv); State ex rel. Muhammad v. State, 133 Ohio St.3d 

2012-Ohio-4767, 979 N.E.2d 296, ¶ 3 (appellant waived claim on appeal by failing to 

specifically raise claim in his objections to the magistrate’s decision in the trial court); 

Liming v. Damos, 4th Dist. Athens No. 08CA34, 2009-Ohio-6490, ¶ 14; see also Burriss 

v. Burriss, 4th Dist. Lawrence Nos. 09CA21 and 10CA11, 2010-Ohio-6116, ¶ 28, citing 

Kiewel v. Kiewel, 9th Dist. Medina No. 09CA0075-M, 2010-Ohio-2945, ¶ 17 (discussing 

the difference between forfeiture and waiver). 
Scioto App. No. 13CA3568 7

{¶18} Under Civ.R. 53(D)(3)(b)(i), a party must file objections within 14 days of 

the filing of the magistrate’s decision. The objections must be “specific and state with 

particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). For objections to findings 

of fact, they must be “supported by a transcript of all the evidence submitted to the 

magistrate relevant to that finding or an affidavit of that evidence if a transcript is not 

available.” Civ.R. 53(D)(3)(b)(iii). “Except for a claim of plain error, a party shall not 

assign as error on appeal the court’s adoption of any factual finding or legal conclusion, 

whether or not specifically designated as a finding of fact or conclusion of law under 

Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as 

required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). “ ‘In essence, the rule is based 

on the principle that a trial court should have a chance to correct or avoid a mistake 

before its decision is subject to scrutiny by a reviewing court.’ ” Liming at ¶ 14, quoting 

Barnett v. Barnett, 4th Dist. Highland No. 04CA13, 2008-Ohio-3415, ¶ 16. 

{¶19} In her objections to the magistrate’s decision, Faulks did not raise the 

issue now raised by appellate counsel, i.e. that court erred in adopting the magistrate's 

recommendation to terminate the shared parenting order because the court had already 

done so and declared her the residential parent. Thus she argues the court had to 

proceed on Flynn's motion to modify "custody." However, she forfeited or waived this 

claim, except for plain error. Civ.R. 53(D)(3)(b)(iv). 

{¶20} “In appeals of civil cases, the plain error doctrine is not favored and may 

be applied only in the extremely rare case involving exceptional circumstances where 

error, to which no objection was made at the trial court, seriously affects the basic 

fairness, integrity, or public reputation of the judicial process, thereby challenging the 
Scioto App. No. 13CA3568 8

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 

116, 679 N.E.2d 1099 (1997), syllabus. Because parental rights determinations are 

difficult to make and appellate courts accord wide latitude to the trial court’s 

consideration of evidence in these cases, “[p]lain error is particularly difficult to 

establish.” See generally Robinette v. Bryant, 4th Dist. Lawrence No. 12CA20, 2013-

Ohio-2889, ¶ 28. 

{¶21} Faulks does not assert plain error here. She does not acknowledge her 

failure to raise her claim in her objections to the magistrate’s decision. 

{¶22} Moreover, she invited any error by the trial court; both she and Flynn 

testified at the hearing before the magistrate that they did not believe that the trial 

court’s 2008 entry that she now claims constructively terminated the 2003 shared 

parenting order actually had that effect. See State ex rel. Kline v. Carroll, 96 Ohio St.3d 

404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27 (“Under [the invited-error] doctrine, a party 

is not entitled to take advantage of an error that he himself invited or induced the court 

to make”); State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, 

¶10 (even plain error is waived where error is invited); In the Matter of S.N.T. and 

S.L.T., 4th Dist. Washington No. 12CA2, 2012-Ohio-3266, ¶ 10 (party in custody 

proceeding waived appellate claim that trial court should have applied change-incircumstances standard before awarding custody when party advocated a different 

standard in the trial court). 

{¶23} Faulks's argument that neither party's filings expressly requested the court 

to terminate the shared parenting decree is not persuasive. Under R.C. 

3109.04(E)(2)(c), the trial court can terminate a shared parenting decree whenever the 
Scioto App. No. 13CA3568 9

court determines the plan is no longer in the child's best interest. See Myers v. Myers, 

153 Ohio App.3d 243, 2003-Ohio-3552, 792 N.E.2d 770, ¶37-40 (7th Dist.). 

{¶24} The trial court did not abuse its broad discretion in terminating the shared 

parenting order when no prior entry had specifically terminated it. See Babcock v. 

Welcome, 4th Dist. Ross No. 11CA3273, 2012-Ohio-5284, ¶ 7 (decisions concerning 

child-custody matters will not be reversed absent an abuse of discretion); In the Matter 

of J.L.R. and M.M.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶ 28 

(termination of parties’ prior shared parenting plan under R.C. 3109.04(E)(2)(c) does not 

require a finding of a change in circumstances). Although the record is replete with 

evidence that would satisfy a substantial change in circumstances analysis, this same 

evidence also established that termination of shared parenting and naming Flynn the 

custodial parent was in the child's best interest: Faulks relocated with the parties’ son to 

Florida in 2010 without notifying the trial court, Faulks moved five times since the 2008 

judgment, the parties’ son attended three different school districts in a three-year period, 

and the parties’ son experienced academic and behavioral problems at school. 

{¶25} Because Faulks has not established error, much less plain error, in the 

trial court’s custody determination, we overrule her first assignment of error. 

B. Independent Review of Magistrate’s Decision and Objections 

{¶26} In her second assignment of error, Faulks contends that the trial court 

erred in failing to conduct meaningful a de novo review of the magistrate’s decision 

upon her filing of timely objections. 

{¶27} Under Civ.R. 53(D)(4)(d), “[i]n ruling on objections, the court shall 

undertake an independent review as to the objected matters to ascertain that the 
Scioto App. No. 13CA3568 10

magistrate properly determined the factual issues and appropriately applied the law.” “A 

presumption of regularity attaches to all judicial proceedings.” State v. Raber, 134 Ohio 

St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. Appellate courts thus presume that 

a trial court conducted an independent analysis in reviewing a magistrate’s decision in 

accordance with Civ.R. 53(D)(4)(d), and the party claiming that the trial court did not do 

so bears the burden of rebutting the presumption. See Sheeter v. Sheeter, 4th Dist. 

Jackson No. 12CA7, 2013-Ohio-1524, ¶ 27. This burden requires more than a mere 

inference, and simply because a trial court adopted a magistrate’s decision does not 

mean that the court failed to exercise independent judgment. Id.

{¶28} Faulks first claims that the trial court did not conduct an independent 

review because it specified that it was terminating the shared parenting plan, and not 

the shared parenting decree, which adopted the plan. This does not establish that the 

trial court failed to conduct an independent review of the magistrate’s decision. First, 

the decision refers to the plan approved by the court, which is the decree. Second, she 

did not timely object to the magistrate’s similar use of the term “plan” instead of “decree” 

in his decision. 

{¶29} Faulks next claims that the trial court did not indicate that it considered her 

detailed objections. The trial court’s judgment, however, expressly stated that it 

“reviewed the Plaintiff’s Objections and * * * the transcript of the proceedings.” In 

essence Faulks’s pro se objections included her version of the pertinent facts in the 

case. They were contradicted by the magistrate’s detailed findings of fact, which were 

supported by the transcript of the hearing. Faulks’s claim is meritless. 
Scioto App. No. 13CA3568 11

{¶30} Finally, Faulks claims that the magistrate’s oral decision, which was “at 

odds with its rambling explanation why it needed to find a change of circumstances (and 

why it didn’t)” in the magistrate’s written decision, indicates that the trial court did not 

conduct an independent review. The mere fact that a written decision is at odds with a 

prior oral pronouncement does not indicate error or, for that matter, that a trial court 

failed to conduct an independent review of the magistrate’s written decision. See 

Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the 

syllabus (“A court of record speaks only through its journal and not by oral 

pronouncement”). And the magistrate’s written decision was justified by its findings and 

conclusions. Notably, Faulks does not claim on appeal that the trial court erred in failing 

to sustain any of her objections regarding her version of the pertinent facts—instead, 

her appellate counsel concedes that the pro se objections “are not in the form counsel 

might employ.” 

{¶31} Therefore, Faulks has not met her burden of rebutting the presumed 

validity of the trial court’s decision. Civ.R. 53(D)(4)(d) authorizes a trial court to overrule 

objections and adopt a magistrate’s decision “if the court completely agree[s] with it.” 

See Arnold v. Arnold, 4th Dist. Athens No. 04CA36, 2005-Ohio-5272, ¶ 33. As in 

Arnold, the magistrate here prepared a detailed decision concerning parental rights, 

which contained sufficient facts to assist the trial court in independently determining the 

best interest of the child. We overrule Faulks’s second assignment of error. 

C. Constitutionality of Loc.R. 6.0 

{¶32} In her third assignment of error, Faulks claims that Loc.R. 6.0 of the 

Scioto County Court of Common Pleas, Domestic Relations Division is 
Scioto App. No. 13CA3568 12

unconstitutionally burdensome for parties living several states apart, and thus is not in 

the best interests of the child, is a violation of her parental rights, and constitutes an 

abuse of discretion. The trial court granted Faulks parenting time in accordance with 

Loc.R. 6.0 “and at such other times as the parties may agree.” Loc.R. 6.0 sets forth 

standard visitation schedules, based on the child’s age and how far the parties live from 

each other. 

{¶33} “A party forfeits constitutional arguments when the party fails to raise them 

before the trial court and instead, raises them for the first time on appeal.” In re C.P., 

4th Dist. Athens No. 12CA18, 2013-Ohio-889, ¶ 8. “ ‘Constitutional rights may be lost 

as finally as any others by a failure to assert them at the proper time.’ ” State v. Awan, 

22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 

56, 62, 236 N.E.2d 545 (1968). 

{¶34} Faulks could have raised this issue in her objections to the magistrate’s 

decision, but she failed to do so. She is thus precluded from raising this claim on 

appeal. 

{¶35} Moreover, by not addressing the fact that she did not raise this 

constitutional argument in the trial court, Faulks fails to present “exceptional 

circumstances” warranting a finding of plain error. See, e.g., C.P. at ¶ 9 (appellant 

failed to present extraordinary reason to justify finding of plain error when he did not 

address the fact that he did not raise constitutional arguments during the trial court 

proceedings). 

{¶36} Finally, Faulks argues that parties should be able to craft their own 

agreement on visitation given their needs, including longer, but less frequent visits, or 
Scioto App. No. 13CA3568 13

entire school vacations. But the trial court’s judgment already permits the parties to 

agree to other visitation times. 

{¶37} The merits of her constitutional claim are not properly before us. 

Therefore, we overrule Faulks’s third assignment of error. 

IV. CONCLUSION 

{¶38} Based on the foregoing, the trial court did not err in terminating the shared 

parenting decree, designating Flynn the legal custodian and residential parent of the 

parties’ son, and awarding Faulks parenting time. Having overruled Faulks’s 

assignments of error, we affirm the judgment of the trial court. 

JUDGMENT AFFIRMED. 
Scioto App. No. 13CA3568 14

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Scioto 

County Court of Common Pleas, Domestic Relations Division, to carry this judgment 

into execution. 

 Any stay previously granted by this Court is hereby terminated as of the date of 

this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.