[Cite as McMahan v. McMahan, 2015-Ohio-5054.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

TIFFANY I. MCMAHAN, 

 PLAINTIFF-APPELLEE, CASE NO. 17-15-06 

 v. 

DAVID T. MCMAHAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Shelby County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 13DV000062 

Judgment Affirmed 

Date of Decision: December 7, 2015 

 

APPEARANCES: 

 

David T. McMahan, Appellant 

 Timothy S. Sell for Appellee 
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PRESTON, J. 

{¶1} Defendant-appellant, David T. McMahan (“David”), pro se, appeals 

the May 4, 2015 decision of the Shelby County Court of Common Pleas, Domestic 

Relations Division granting divorce from the plaintiff-appellee, Tiffany I. 

McMahan (“Tiffany”). For the reasons that follow, we affirm. 

{¶2} David and Tiffany were married on April 12, 2008. (Doc. No. 1). 

Tiffany filed a complaint for divorce on April 2, 2013. (Id.). Although this was a 

second marriage for each of them, and while each had children from their previous 

marriages, one child (“M.M.”) was born as issue of this marriage. (Id.). Tiffany 

filed motions on April 2, 2013 requesting that the trial court issue ex parte orders: 

(1) that she have exclusive use of the 2002 Chevrolet Venture; (2) that she have 

exclusive use of the marital residence; (3) that she have temporary custody of 

M.M. and that David pay Tiffany temporary child support for M.M.; and (4) 

granting a temporary restraining order against David. (See Doc. Nos. 9, 11, 13, 

15). The trial court issued the ex parte orders requested by Tiffany on April 3, 

2013. (Doc. Nos. 18, 19, 20, 21). 

{¶3} David, pro se, filed a motion on April 10, 2013 requesting that the trial 

court order Tiffany to be tested for drugs. (Doc. Nos. 28). David then retained 

counsel and on April 15, 2013 filed his answer and counterclaim. (Doc. No. 36). 

On April 15, 2013, David filed an objection to the trial court’s April 3, 2013 ex 
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parte orders granting Tiffany temporary custody of M.M. and ordering David to 

pay temporary child support. (Doc. No. 37). That same day, David filed motions 

requesting that the trial court issue ex parte orders: (1) protecting the interests of 

M.M., (2) a temporary restraining order against Tiffany, (3) that he be granted 

temporary custody of M.M. and that Tiffany pay child support. (Doc. Nos. 38, 40, 

42). The trial court on April 16, 2013 issued the ex parte orders protecting M.M.’s 

interests granting temporary restraining order against Tiffany. (Doc. Nos. 53, 54). 

{¶4} Tiffany filed her reply to David’s counterclaim on April 18, 2013. 

(Doc. No. 56). 

{¶5} On June 4, 2013, the magistrate of the trial court issued “Agreed 

Temporary Order of Custody and Child Support,” granting temporary custody of 

M.M. to Tiffany, granting David parenting time with M.M., and ordering David to 

pay temporary child support. (Doc. No. 64). 

{¶6} On June 11, 2013, David filed a motion for shared parenting and 

submitted a “Proposed Shared Parenting Plan.” (Doc. Nos. 78, 79). 

{¶7} On September 11, 2013, David filed a “Notice of Filing Bankruptcy.” 

(Doc. No. 81). On September 13, 2013, Tiffany filed a “Notice of Bankruptcy 

Filing.” (Doc. No. 83). 

{¶8} On December 23, 2013 and February 27, 2014, David filed motions to 

continue the final divorce hearing because he was incarcerated. (Doc. Nos. 88, 
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92). On March 5, 2014, the magistrate denied David’s February 27, 2014 motion 

requesting a second continuance of the final divorce hearing. (Doc. No. 94). 

{¶9} After a hearing on July 9-10 and 14, 2014, the magistrate issued his 

decision on August 7, 2014. (Doc. No. 134). 

{¶10} On August 12, 2014, David filed a motion requesting extended 

parenting time with M.M. (Doc. No. 138). The magistrate granted David’s 

motion that same day. (Doc. No. 139). On August 18, 2014, David’s counsel 

filed a motion to withdraw as counsel, which the trial court granted on August 19, 

2014. (Doc. Nos. 143, 144). 

{¶11} On August 19, 2014, David, pro se, filed his objections to the 

magistrate’s decision—namely, the magistrate’s “findings, conclusions, and 

recommendations concerning the best interest of the parties’ minor child * * *, 

regarding parental rights and responsibilities.” (Doc. No. 149). After a number of 

extensions, David filed his memorandum in support of his objections to the 

magistrate’s decision on January 27, 2015. (Doc. No. 177). Tiffany filed her 

memorandum in opposition to David’s objections to the magistrate’s decision. 

(Doc. No. 183). The trial court adopted “all of the magistrate’s decision regarding 

the divorce and the ending of the parties’ marriage that do not deal with the 

allocation of parental rights and responsibilities,” overruled David’s objections to 

the magistrate’s decision, and, after an independent analysis, adopted the 
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“magistrate’s decisions on allocation of parental rights and responsibilities 

including residential care, child support, and health care,” but ordered parenting 

time in accordance with Loc.R. 22. (Doc. No. 184). 

{¶12} On May 4, 2015, the trial court issued a final divorce decree. (Doc. 

No. 188). 

{¶13} David filed his notice of appeal on May 14, 2015. (Doc. No. 197). 

He raises one assignment of error for our review. 

Assignment of Error 

The Trial Court abused its discretion by vesting the care, 

custody, maintenance, and control of the parties’ minor child 

with the Plaintiff-Mother. 

{¶14} In his assignment of error, although it is unclear, it appears that 

David is arguing that the trial court abused its discretion by (1) designating 

Tiffany as M.M.’s legal and residential custodian, (2) denying David’s shared 

parenting request, and (3) reducing his parenting time with M.M. Specifically, 

David argues that the trial court’s decisions were not in M.M.’s best interest 

because Tiffany’s admission of “initiating [her] minor son into illegal drug usage” 

was more significant than David’s “alleged conduct of domestic violence fouryears prior.” (Appellant’s Brief at 9, 11). We will address together David’s first 

and second arguments because the statute combines those issues, followed by his 

third argument. 
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{¶15} “Revised Code 3109.04 governs the trial court’s award of parental 

rights and responsibilities.” August v. August, 3d Dist. Hancock No. 5-13-26, 

2014-Ohio-3986, ¶ 22, citing King v. King, 3d Dist. Union No. 14-11-23, 2012-

Ohio-1586, ¶ 8. “The statute requires that in allocating the parental rights and 

responsibilities, the court ‘shall take into account that which would be in the best 

interest of the child[].’” Id., citing Self v. Turner, 3d Dist. Mercer No. 10-06-07, 

2006-Ohio-6197, ¶ 6, quoting R.C. 3109.04(B)(1). “It further provides for options 

available to the trial court when allocating parental rights and responsibilities: 

‘primarily to one of the parents’ (R.C. 3109.04(A)(1)), or ‘to both parents’ (R.C. 

3109.04(A)(2)).” Id., citing Fisher v. Hasenjager, 116 Ohio St.3d 53, 

2007-Ohio-5589, ¶ 23-24 and R.C. 3109.04(A), (D), (F), (G). “Under R.C. 

3109.04(D)(1)(a)(iii), where, as here, ‘only one parent makes a request’ for shared 

parenting and the trial court determines that shared parenting is not in the best 

interest of the child, the trial court may deny a party’s motion requesting shared 

parenting and proceed as if the request for shared parenting had not been made.” 

Id. 

{¶16} “Where neither party files a pleading or motion requesting shared 

parenting in accordance with R.C. 3109.04(G),” or where the trial court concludes 

that a shared parenting plan is not in the best interest of the child, 
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“the [trial] court, in a manner consistent with the best interest of the 

child[], shall allocate the parental rights and responsibilities for the 

care of the child[] primarily to one of the parents, designate that 

parent as the residential parent and the legal custodian of the child, 

and divide between the parents the other rights and responsibilities 

for the care of the child[], including, but not limited to, the 

responsibility to provide support for the child[] and the right of the 

parent who is not the residential parent to have continuing contact 

with the child[].” 

Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 48, quoting 

R.C. 3109.04(A)(1) and citing Frey v. Frey, 3d Dist. Hancock No. 5-06-36, 2007-

Ohio-2991, ¶ 28. 

{¶17} “Further subsections of [R.C. 3109.04] spell out ten factors that the 

court shall consider to determine the best interest of the child, and five more 

factors to determine whether shared parenting is in the child’s best interest.” 

August at ¶ 23, citing R.C. 3109.04(F)(1) and (2). “Any additional relevant factors 

shall be considered as well.” Id., citing R.C. 3109.04(F)(1) and (2). 

“In determining the best interest of a child [under R.C. 3109.04], 

whether on an original decree allocating parental rights and 

responsibilities for the care of children or a modification of a decree 
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allocating those rights and 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 
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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 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 
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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. 

Id., quoting R.C. 3109.04(F)(1). 

In determining whether shared parenting is in the best interest of the 

child[], the court shall consider all relevant factors, including, but 

not limited to, the factors enumerated in division (F)(1) of this 

section, the factors enumerated in section 3119.23 of the Revised 

Code, and all of the following factors: 

(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; 
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(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.” 

Id., quoting R.C. 3109.04(F)(2). 

{¶18} “‘Decisions concerning child custody matters rest within the sound 

discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker, 2013-Ohio-1496, at ¶ 46, citing Wallace v. 

Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v. 

Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an award of custody is supported 

by a substantial amount of credible and competent evidence, such an award will 

not be reversed as being against the weight of the evidence by a reviewing 

court.”’” Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 3d Dist. Hancock 

No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21 

(1990), syllabus. “‘Accordingly, an abuse of discretion must be found in order to 

reverse the trial court’s award of child custody.’” Id., quoting Walker at ¶ 46, 

citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “‘An 

abuse of discretion suggests the trial court’s decision is unreasonable or 
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unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-

43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶19} “The trial court ‘has discretion in determining which factors are 

relevant,’ and ‘each factor may not necessarily carry the same weight or have the 

same relevance, depending upon the facts before the trial court.’” Id. at ¶ 29, 

quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶ 

41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51. 

“A trial court is not limited to the listed factors in R.C. 3109.04(F), but may 

consider any other relevant factors in making a determination of child custody.” 

Brammer at ¶ 41, citing Shaffer v. Shaffer, 3d Dist. Paulding No. 11-04-22, 2005-

Ohio-3884, ¶ 20. “Although the trial court must consider all relevant factors, there 

is no requirement that the trial court set out an analysis for each of the factors in its 

judgment entry, so long as the judgment entry is supported by some competent, 

credible evidence.” Krill at ¶ 29, citing Meachem at ¶ 30, citing Portentoso v. 

Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22. “‘[A]bsent 

evidence to the contrary, an appellate court will presume the trial court considered 

all of the relevant “best interest” factors listed in R.C. 3109.04(F)(1).’” Meachem

at ¶ 32, quoting Goodman v. Goodman, 3d Dist. Marion No. 9-04-37, 2005-Ohio1091, ¶ 18. 
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{¶20} “Additionally, we note that the trier of fact is in the best position to 

observe the witnesses, weigh evidence, and evaluate testimony.” Id. at ¶ 20, citing 

Clark v. Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 23, citing In re 

Brown, 98 Ohio App.3d 337 (3d Dist.1994). “Therefore, ‘“[a] reviewing court 

should not reverse a decision simply because it holds a different opinion 

concerning the credibility of the witnesses and evidence submitted before the trial 

court. A finding of an error in law is a legitimate ground for reversal, but a 

difference of opinion on credibility of witnesses and evidence is not.”’” Id., 

quoting Clark at ¶ 23, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 

77, 81 (1984). 

{¶21} First, after reviewing the relevant R.C. 3109.04(F)(1) and (2) factors, 

the magistrate and trial court concluded that shared parenting is not in M.M.’s best 

interest and that it is in M.M.’s best interest that Tiffany have residential and legal 

custody of M.M. 

{¶22} In his August 7, 2014 decision, the magistrate specifically stated that 

he considered the R.C. 3109.04 factors in concluding that shared parenting is not 

in M.M.’s best interest and that it is in M.M.’s best interest that Tiffany have 

residential and legal custody of M.M. In particular, the magistrate found that 

“[t]here is substantial, credible evidence to indicate that David has committed acts 

of domestic violence against Tiffany during the course of their marriage.” (Doc. 
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No. 134). In support of his finding, the magistrate noted that a civil protection 

order was granted on September 1, 2010 to protect Tiffany from David and that 

David was convicted of two counts of telephone harassment against Tiffany for 

which he was sentenced to 30 days in jail. (Id., citing Plaintiff’s Ex. 8(a)). After 

he was released from jail, David was convicted of further acts of harassment 

against Tiffany for which he received 110 days in jail. (Id., citing Plaintiff’s Ex. 

8(c)). The magistrate found that M.M. is “doing well” in Tiffany’s care and that 

Tiffany provides for M.M.’s day-to-day needs, including taking M.M. to the 

doctor, buying her clothing, bathing her, and preparing her meals. The magistrate 

found that Tiffany’s family lives nearby and provides Tiffany support in taking 

care of M.M. Also, the magistrate found that M.M. has a close relationship with 

her maternal grandparents. While the magistrate noted that Tiffany’s admission 

that she smoked marijuana with her minor son demonstrated poor judgment, the 

magistrate found that it was an isolated incident that occurred two years before 

and that Tiffany’s son is on the honor roll at school. The magistrate further found 

that David and Tiffany’s communication is “very poor” and that David has 

demonstrated “a lack of concern for following court orders[, which] appears to be 

the biggest reason for his lengthy incarceration.” (Id.). 

{¶23} In its March 17, 2015 decision overruling David’s objections to the 

magistrate’s decision, the trial court, after an independent analysis of the R.C. 
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3109.04 factors, also concluded that shared parenting is not in M.M.’s best interest 

and that it is in M.M.’s best interest that Tiffany have residential and legal custody 

of M.M. In particular, while the trial court found the conduct of both David and 

Tiffany troubling, the trial court found the following R.C. 3109.04(F)(1) factors 

relevant to its decision: R.C. 3109.04(F)(1)(a), both David and Tiffany wished to 

be M.M.’s residential parent; R.C. 3109.04(F)(1)(c), M.M. has a good relationship 

with both David and Tiffany and her siblings in Tiffany’s home; R.C. 

3109.04(F)(1)(d), M.M. is well adjusted and well taken care of in Tiffany’s home; 

R.C. 3109.04(F)(1)(f), David has a history of violating the law and court orders, 

which suggests that he will be less likely to honor and facilitate court-approved 

parenting time; R.C. 3109.04(F)(1)(h), David was convicted of offenses—

disorderly conduct, amended from domestic violence, and telephone harassment of 

Tiffany—involving a victim, who, at the time of the commission of the offense, 

was a member of the family or household; and R.C. 3109.04(F)(1)(i), there is no 

evidence that Tiffany, M.M.’s current residential parent, denied David parenting 

time. (Doc. No. 184). 

{¶24} The trial court also found that M.M. resided with Tiffany since David 

and Tiffany’s separation and that Tiffany established herself as M.M.’s primary 

caregiver. The trial court found that M.M. is “well taken care of by Tiffany.” 

(Id.). The trial court further found that Tiffany is able to provide M.M. a 
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“suitable” physical environment and that M.M. has a strong support group of 

relatives and friends in Tiffany’s care. (Id.). While the trial court found Tiffany’s 

“former use of marijuana and the permitting of her son’s use of marijuana” to be 

“[t]he primary detractive factor” against her, the trial court found David’s behavior 

to weigh more heavily against him. (Id.). 

{¶25} Challenging the trial court’s decision, David appears to assert that 

either shared parenting or he being named M.M.’s legal and residential custodian 

should have been granted because Tiffany’s admitted use of, and permitting her 

son to use, marijuana outweighed David’s disorderly conduct conviction, which 

was amended from a charge of domestic violence. However, David’s disorderly 

conduct conviction is not the only factor on which the trial court relied in 

concluding that shared parenting is not in M.M.’s best interest and that it is in 

M.M.’s best interest that Tiffany have residential and legal custody of M.M. 

Instead, the trial court examined the care M.M. is receiving with Tiffany and the 

physical environment to which M.M. is exposed in Tiffany’s care in addition to

David’s and Tiffany’s conduct. In particular, the trial court, which is in the best 

position to observe the witnesses, weigh evidence, and evaluate testimony, 

analyzed, 

This court finds troubling Tiffany’s marijuana use and, in particular, 

her apparent support of her seventeen-year-old son’s marijuana use. 
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On the other hand, this court finds even more troubling the conduct 

of David. Whether or not he was actually convicted of a domestic 

violence charge, the evidence is clear that David has a history of 

violence against women. Further, the evidence demonstrates other 

criminal activity on the part of David in the form of telephone 

harassment charges that resulted in significant incarceration. 

(Id.). David’s argument that the trial court should have put more weight on 

Tiffany’s admission as opposed to his disorderly conduct conviction has no merit. 

The trial court was in the best position to observe the parties during the 

proceedings, and the record supports the trial court’s findings regarding David’s 

conduct. (See Plaintiff’s Exs. 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g)). The trial 

court’s best-interest findings are supported by some competent, credible evidence. 

Thus, the trial court did not abuse its discretion by concluding that shared 

parenting is not in M.M.’s best interest and that it is in M.M.’s best interest that 

Tiffany have residential and legal custody of M.M. 

{¶26} Next, David argues that the trial court abused its discretion by 

reducing his parenting time with M.M. R.C. 3109.051 governs visitation rights of 

non-residential parents and provides, in pertinent part: 

“If a divorce * * * proceeding involves a child and if the court has 

not issued a shared parenting decree, the court * * *, in accordance 
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with division (C) of this section, shall make a just and reasonable 

order or decree permitting each parent who is not the residential 

parent to have parenting time with the child at the time and under the 

conditions that the court directs, unless the court determines that it 

would not be in the best interest of the child to permit that parent to 

have parenting time with the child and includes in the journal its 

findings of fact and conclusions of law. Whenever possible, the 

order or decree permitting the parenting time shall ensure the 

opportunity for both parents to have frequent and continuing contact 

with the child, unless frequent and continuing contact by either 

parent with the child would not be in the best interest of the child.” 

Walton v. Walton, 3d Dist. Union No. 14-10-21, 2011-Ohio-2847, ¶ 21, quoting 

R.C. 3109.051(A). See also Braatz v. Braatz, 85 Ohio St.3d 40, 44-45 (1999). 

To determine whether a parenting schedule is in the child’s best 

interest, R.C. 3109.051(D) directs the trial court to consider the 

following factors, in part: 

“(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 
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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; 

* * * 

(7) The health and safety of the child; 

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

other than a parent, * * * whether either 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; 

* * * 

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

Walton at ¶ 21, quoting R.C. 3109.051(D). 
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{¶27} “A trial court’s establishment of a non-residential parent’s 

[parenting-time] rights is within its sound discretion and will not be disturbed on 

appeal absent a showing of an abuse of discretion.” Id. at ¶ 19, citing Fordham v. 

Fordham, 3d Dist. Logan No. 8-08-17, 2009-Ohio-1915, ¶ 18, citing Elson v. 

Elson, 3d Dist. Shelby No. 17-04-16, 2005-Ohio-3228, ¶ 11, citing Appleby v. 

Appleby, 24 Ohio St.3d 39, 41 (1986); Booth v. Booth, 44 Ohio St.3d 142, 144 

(1989). “The trial court’s discretion over [parenting time] in this situation is 

broader than the court’s discretion regarding child custody matters.” Walton at ¶ 

19, citing Elson at ¶ 11, citing State ex rel. Scordato v. George, 65 Ohio St.2d 128 

(1981). “Furthermore, the trial court must exercise its discretion in the best 

interest of the child.” Id., citing Bodine v. Bodine, 38 Ohio App.3d 173, 175 

(1988). 

{¶28} In his August 7, 2014 decision, the magistrate specifically stated that 

he considered the R.C. 3109.051 factors in recommending parenting time for 

David. In particular, with respect to R.C. 3109.051(D)(1), the magistrate found 

that M.M. has a positive relationship with David and that relationship should be 

encouraged. (Doc. No. 134). The magistrate further found that David’s residence 

provides “suitable accommodations” for M.M. (Id.). However, the magistrate 

noted that he “has some concerns about David being able to follow the orders of 

this court.” (Id.). Furthermore, the magistrate acknowledged that the parties had 
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an agreed temporary order providing David parenting time with M.M. every 

Tuesday and Thursday overnight from 7:00 p.m. until the next morning and 

alternating weekends under Loc.R. 22. (Id.). Yet, the magistrate noted Tiffany’s 

concerns regarding David’s care of M.M.—namely, that David does not buy the 

correct size pull-ups for M.M.; that David preaches to M.M. about “godly issues”; 

that David has anger and mental-stability issues; that David has not properly 

dressed M.M. for the weather; that David does not provide proper hygiene for 

M.M.; and whether David will follow orders of the court because David “does not 

always pickup or return the child as ordered.” (Id.). Nonetheless, the magistrate 

found that there is no evidence in the record to indicate that David has done 

anything “wrong” to M.M. (Id.). The magistrate noted that David requested the 

same parenting time with M.M. as provided by the agreed temporary order and 

that Tiffany requested that “David’s weeknight visits on Tuesday and Thursday 

evening be limited to 5:00 p.m. to 8:00 p.m. each of those two nights, and 

overnight visits should be restricted to every other weekend.” (Id.). After 

weighing the best-interest factors, the magistrate concluded that David should 

have parenting time with M.M. overnight on Tuesdays from 7:00 p.m. until he 

drops M.M. off on his way to work the following morning; Thursdays from 5:00 

p.m. until 8:00 p.m.; and alternating weekends and summer vacation as provided 

by Loc.R. 22. (Id.). 
Case No. 17-15-06 

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{¶29} As we stated above, the trial court found the following best-interest 

factors, many of which overlap with the R.C. 3109.04 factors: 

The physical environment for [M.M.] is suitable, there is a strong 

support group of grandparents and friends and [Tiffany] has 

established herself as the primary caregiver and [M.M.] is well taken 

care of by Tiffany. The primary detractive factor for [Tiffany] is her 

former use of marijuana and the permitting of her son’s use of 

marijuana. 

David also has significant issues. He has demonstrated over the 

years anger and rage issues and criminal behavior. His conduct has 

resulted in periods of incarceration and the issuance of civil 

protection orders. 

(Doc. No. 184). 

Nevertheless, David proposes that the trial court abused its discretion when it 

ordered that all provisions of the magistrate’s Decision not 

pertaining to parental rights and responsibilities be adopted as 

suggested by the Magistrate who oversaw the trial. However, he 

down-graded the visitation time the child should have with her father 

* * *. 
Case No. 17-15-06 

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(Appellant’s Brief at 8). David is correct that the trial court adopted all provisions 

of the magistrate’s decision not pertaining to parental rights and responsibilities—

that is, provisions pertaining to shared parenting of M.M., M.M.’s legal and 

residential custodian, and parenting time with M.M. In doing so, as we stated 

above, the trial court considered the R.C. 3109.04 best interests factors. However, 

the trial court concluded that M.M.’s best interests are better served through a 

parenting-time schedule in accordance with Loc.R.22 than the parenting-time 

schedule proposed by the magistrate. 

{¶30} As the First District Court of Appeals contemplated in In re Ross, 

“the record does not demonstrate that the trial court ignored the magistrate’s 

findings of fact. The [trial] court simply disagreed with the magistrate’s proposed 

parenting-time schedule.” 154 Ohio App.3d 1, 2003-Ohio-4419, ¶ 8 (1st Dist.). 

“The trial court, in reviewing the magistrate’s decision, may adopt or reject the 

decision in whole or in part and may make modifications to the decision.” Hewitt 

v. Hewitt, 3d Dist. Union No. 14-08-48, 2009-Ohio-6525, ¶ 46, citing Juv.R. 

40(D)(4)(b). “Additionally, when ruling on objections to the magistrate’s 

decision, the trial court must ‘undertake an independent review as to the objected 

matters to ascertain that the magistrate has properly determined the factual issues 

and appropriately applied the law.’” Id., quoting Juv.R. 40(D)(4)(d) and citing In 

re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-943, ¶ 7. “The [trial] court, after 
Case No. 17-15-06 

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reviewing the record before the magistrate, is free to disagree with the magistrate’s 

conclusions and to enter an order it finds to be in the child’s best interest. In re 

Ross at ¶ 8, citing In re Etter, 134 Ohio App.3d 484 (1st Dist.1998) and In re 

Wooldridge, 1st Dist. Hamilton No. C-980545, 1999 WL 650615 (Aug. 27, 1999). 

The trial court has broad discretion in determining a parenting-time schedule that 

is just and reasonable. Walton, 2011-Ohio-2847, at ¶ 19. After reviewing the 

record and the magistrate’s findings and recommendation, the trial court 

concluded that M.M.’s best interest is better served through a parenting-time 

schedule as provided by Loc.R. 22. The trial court did not abuse its discretion by 

rejecting the magistrate’s proposed parenting-time schedule and adopting its own 

parenting-time schedule because the trial court’s best-interest determination is 

supported by some competent, credible evidence and is just and reasonable. See 

id.

{¶31} David’s assignment of error is overruled. 

{¶32} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW and WILLAMOWSKI, J.J., concur. 

/jlr