[Cite as Mack v. Mack, 2019-Ohio-2379.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

KARLA MACK, 

 Appellee, 

 - vs - 

PHILLIP MACK, 

 Appellant. 

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CASE NO. CA2018-09-179 

O P I N I O N 

6/17/2019 

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

DOMESTIC RELATIONS DIVISION 

Case No. DR2014-11-1167 

Cheryl R. Washington, 10 W. Second Street, Suite 2225, Dayton, Ohio 45402, for appellee 

Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, Ohio 45069, for appellant 

 S. POWELL, J.

{¶ 1} Appellant, Phillip Mack ("Father"), appeals the decision of the Butler County 

Court of Common Pleas, Domestic Relations Division, denying his request to be designated 

as his son's residential parent for school purposes. Father also appeals from the domestic 

relations court's decision modifying his parenting time schedule with his son. For the 

reasons outlined below, we affirm. 
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Facts and Procedural History 

{¶ 2} On November 23, 2015, Father and appellee, Karla Mack ("Mother"), were 

divorced. The parties have one child, I.M., who was five years old at the time of the divorce. 

Following their divorce, the parties were subject to a separation agreement and shared 

parenting plan. As relevant here, the shared parenting plan provided Father with parenting 

time and designated Mother as I.M.'s residential parent for school purposes. It is 

undisputed that Mother has retained that designation at all times relevant. 

{¶ 3} Following their divorce, both parties moved out of Ohio to pursue other 

employment opportunities; Father moved to Pennsylvania in late 2016 while Mother moved 

to North Carolina with I.M. in the summer of 2017. Since moving to North Carolina with 

Mother, I.M. began attending school in Mother's local school district. While there, I.M. has 

made friends and has participated in school sports. I.M. has never attended school in Ohio. 

{¶ 4} On December 8, 2017, five months after Father moved back to Ohio, Father 

filed a motion requesting the domestic relations court to modify the parties' shared parenting 

plan by designating him as I.M.'s residential parent for school purposes. In support, Father 

argued the modification would provide I.M. with a "structured environment" and allow him 

"more contact with extended family members" located in Ohio. Father also moved the 

domestic relations court to modify the parties' parenting time to coincide with his and 

Mother's work schedules. 

{¶ 5} On December 28, 2017, a hearing on Father's motion was held before a 

domestic relations court magistrate. Both Father and Mother testified at this hearing. After 

taking the matter under advisement, the magistrate issued a decision modifying the parties' 

shared parenting plan by designating Father as I.M.'s residential parent for school 

purposes. Despite Father and Mother living approximately nine hours apart, the magistrate 

also modified the parties' parenting time by awarding Mother parenting time with I.M. on 
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alternate weekends. 

{¶ 6} Mother filed a number of objections to the magistrate's decision. Mother's 

objections challenged the magistrate's decision designating Father as I.M.'s residential 

parent for school purposes and the magistrate's decision modifying the parties' respective 

parenting time. After receiving Mother's objections, the domestic relations court held a 

hearing on the matter. Just as they had done at the hearing held before the domestic 

relations court magistrate, both Father and Mother testified at this hearing. 

{¶ 7} On August 2, 2018, the domestic relations court issued a decision that 

affirmed in part, reversed in part, and modified the magistrate's decision. As pertinent to 

this appeal, the domestic relations court rejected the magistrate's decision designating 

Father as I.M.'s residential parent for school purposes. The domestic relations court also 

rejected the magistrate's decision regarding the parties' respective parenting time 

schedules, opting instead to implement a parenting time schedule that was dependent on 

where Father was then stationed for work. 

{¶ 8} Specifically, when Father's employment placed him within 50 miles of 

Mother's residence in North Carolina, the domestic relations court ordered: 

[Father] shall be able to exercise parenting time when within 50 

miles of [Mother's] residence in North Carolina upon 24 hour 

notice. If [Father] is in the area overnight and has a suitable 

place for [I.M.] to stay, he may keep [I.M.] overnight for as long 

as he is in the area, up to seven days. As an exception to the 

transportation orders below, [Father] shall provide 

transportation from his location to [Mother's] residence if she is 

required to work. Otherwise, the parties shall meet in the middle 

or alternate transportation. 

{¶ 9} And, when Father's employment placed him within 100 miles of Mother's 

residence in North Carolina, the domestic relations court ordered: 

[Father] shall have alternate weekends if he is within 100 miles 

of [Mother's] residence, with seven days notice. The weekends 

shall begin from after school on the last day of school before the 
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weekend, and end at 8 PM the evening before school starts. 

This includes any long weekends. 

{¶ 10} The domestic relations court also established a transportation order regarding 

Father's parenting time on holidays and I.M.'s summer vacation. Specifically, the domestic 

relations court ordered: 

The parties shall meet in Weston, West Virginia, or another 

agreed location located geographically between the parties' 

residences. If [Father] is traveling for his work, [Mother] shall 

agree to meet him halfway between his work location and her 

residence, so long as the child does not incur total travel longer 

than nine hours. [Mother] will switch shifts to provide this 

transportation if necessary. 

{¶ 11} The domestic relations court explained that it found these orders were in I.M.'s 

best interest because: 

It is not in [I.M.'s] best interest to travel for the approximate nine 

hours between the parents' residences for less than three days 

of parenting time. The court has fashioned specific parenting 

time and transportation orders in the event that the parties are 

geographically closer. 

Appeal and Standard of Review 

{¶ 12} Father now appeals from the domestic relations court's decision, raising two 

assignments of error for review. Both of Father's assignments of error address the 

modification of the parties' shared parenting plan. When a parent seeks to modify the terms 

of the shared parenting plan, such as the case here, the best-interest standard in R.C. 

3109.04(E)(2)(b) applies. Hall v. Hall, 12th Dist. Butler No. CA2018-05-091, 2019-Ohio-81, 

¶ 21. 

{¶ 13} Pursuant to R.C. 3109.04(E)(2)(b), the domestic relations court may modify 

the terms of the shared parenting plan "if the court determines that the modifications are in 

the best interest of the children[.]" Under this standard, and in accordance with R.C. 

3109.04(F)(1), the domestic relations court must consider all relevant factors, including, but 
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not limited to: 

(1) The wishes of the child's parents regarding the child's care; 

(2) 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; 

(3) 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; 

(4) The child's adjustment to the child's home, school, and 

community; 

(5) The parent more likely to honor and facilitate court-approved 

parenting time rights or visitation and companionship rights; 

(6) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that 

parent pursuant to a child support order under which that parent 

is an obligor; 

(7) Whether either parent has established a residence, or is 

planning to establish a residence, outside this state. 

{¶ 14} The domestic relations court's determination of what is in the best interest of 

a child will not be reversed absent an abuse of discretion. McNeal v. Mahon, 12th Dist. 

Clermont No. CA2015-11-094, 2016-Ohio-5373, ¶ 20. An abuse of discretion implies that 

the court's attitude was unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist. 

Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). "This highly deferential standard of review rests on the premise that 

the trial judge is in the best position to determine the credibility of witnesses because he or 

she is able to observe their demeanor, gestures, and attitude." Rarden v. Rarden, 12th 

Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10. 

{¶ 15} Assignment of Error No. 1: 

{¶ 16} THE DECISION DENYING APPELLANT'S MOTION TO BE DESIGNATED 

RESIDENTIAL PARENT FOR SCHOOL PURPOSES WAS CONTRARY TO THE 
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MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 17} In his first assignment of error, Father argues the domestic relations court 

erred by denying his request to modify the parties' shared parenting plan by designating 

him as I.M.'s residential parent for school purposes. We disagree. 

{¶ 18} As noted above, we review the modification of a parties' shared parenting plan 

designating a child's residential parent for school purposes for an abuse of discretion. In re 

A.N.G.G., 12th Dist. Warren No. CA2018-08-084, 2019-Ohio-1294, ¶ 16. Such a review 

requires this court to determine whether it was an abuse of discretion for the domestic 

relations court to find it was in I.M.'s best interest for Mother to remain the child's residential 

parent for school purposes. The domestic relations court reached its decision by analyzing 

the best interest factors outlined in R.C. 3109.04(F)(1). The following is a summary of the 

domestic relations court's best interest findings. 

{¶ 19} Initially, as it relates to the parties' wishes regarding I.M.'s care, the domestic 

relations court noted that Mother had been designated I.M.'s residential parent for school 

purposes in the parties' shared parenting plan. But, as evidenced by Father's motion, the 

domestic relations court found Father wanted to modify the parties' shared parenting plan 

to designate him as I.M.'s residential parent for school purposes. 

{¶ 20} Next, in regard to I.M.'s wishes, the domestic relations court noted that it had 

reviewed the audio recording of the in camera interview between the magistrate and I.M. 

Following this review, the common pleas court noted that it found I.M. had answered the 

magistrate's questions appropriately. The domestic relations court also noted that its review 

of the in camera interview proved that I.M. "loves both parents and enjoys his parenting 

time with both of them." 

{¶ 21} As for I.M.'s interaction and interrelationship with his parents and any other 

person who may significantly affect his best interest, the domestic relations court found 
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Mother had been designated I.M.'s residential parent for school purposes since I.M. had 

first started attending school. The domestic relations court also found Mother had secured 

a tutor for I.M. to assist in his academic progress, as well as a therapist "for the purposes 

of helping [I.M.] adjust to his father's frequent absences due to work responsibilities." 

{¶ 22} As it relates to Father, the domestic relations court found Father had recently 

moved from his apartment in Pennsylvania back to Ohio where he resided with his mother 

and sister. However, despite Father now residing with family in Ohio, the domestic relations 

court noted that Father's sister testified Father "was in the home approximately every other 

weekend." The domestic relations court also found that Father's extended family and 

girlfriend had acted as "caregivers" for I.M. due to Father's frequent absences for work. 

{¶ 23} The domestic relations court further found Father had secured employment 

with a local public school district that would allow him to have more consistent hours close 

to home. But, as the domestic relations court found, "four months after filing his motions, 

[Father] retained the job where he continues to travel extensively." The domestic relations 

court also found Father's chosen employment required him to remain in the same locale 

"for as long as the project lasts." This, as the record indicates, could last many months or 

even years. 

{¶ 24} In regard to I.M.'s adjustment to his home, school, and community, the 

domestic relations court found I.M. had never attended school in Father's local school 

district in Ohio. The domestic relations court instead found I.M. was enrolled in elementary 

school in North Carolina "and likely has started the new school year there." The domestic 

relations court also found Mother had "obtained after school assistance" for I.M. in reading 

and math, as well as "obtained counseling for [I.M.] for assistance in dealing with his 

infrequent contact with [Father.]" 

{¶ 25} The domestic relations court further found in regard to Father, Father's 
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girlfriend, and Father's mother: 

[Father] was unable to testify which school the child would 

attend if he were designated residential parent for school 

purposes. He testified that he would either take the child to 

school, or have him attend the school where his girlfriend's 

children attend and catch the bus with his girlfriend's children. 

[Father's girlfriend] testified as to the school that the child would 

attend if [Father] were designated residential parent. She 

further testified that her mother would be caregiver for 

afterschool. She further testified this child is bonded to her 

mother, although no other evidence was presented as to this 

bond. 

{¶ 26} As for the parent more likely to honor and facilitate court-approved parenting 

time rights, the domestic relations court found Father had failed to communicate with Mother 

on certain aspects of I.M.'s care. This includes Father failing to provide Mother with his 

contact information and with proper notification regarding family vacations as required by 

the parties' shared parenting plan. Specifically, the domestic relations court found Father 

"did not communicate with [Mother] regarding the trip with [I.M.] to Gatlinburg, or his 

girlfriend's transport of [I.M.] back to Ohio." 

{¶ 27} As it relates to Mother, the domestic relations court found Mother had not 

sought to diminish Father's parenting rights with I.M. The domestic relations court instead 

found Mother "makes an effort" to communicate with Father. Yet, even then, the domestic 

relations court found Mother had "failed to fully communicate and make decisions with 

[Father]." Therefore, according to the domestic relations court, "neither party includes the 

other in decision-making or information regarding this child." 

{¶ 28} Moreover, when considering whether either parent had failed to make all child 

support payments, including all arrearages, the domestic relations court found Father was 

in arrears on his child support obligations dating back to the summer of 2017. However, 

although in arrears, the domestic relations court noted Mother's testimony that she 
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"believed" Father was still making payment towards his arrears, "but did not provide a recent 

history." 

{¶ 29} Finally, with regard to whether either parent had established a residence, or 

is planning to establish a residence, outside of Ohio, the domestic relations court found 

Father's current employment required him to remain "in one location for as long as a project 

takes." This, as noted above, could last many months or even years. The domestic 

relations court also found that when I.M. was supposed to be with Father in Ohio that Father 

was oftentimes "unable to fully exercise his parenting time" due to his busy work schedule. 

{¶ 30} Turning then to Mother, the domestic relations court noted that Mother had 

moved to North Carolina with I.M. Due to this move, the domestic relations court found "[a]t 

one time neither parent lived in the state of Ohio." The domestic relations court also found: 

[Father] has returned and has established his permanent 

residence as the house his mother and sister live in. [Mother] 

was training for her employment for a period of time, which she 

testified [precluded] her from participating in transportation. She 

is no longer in training. She has set shifts. On alternate weeks 

[Mother] works long hours during much of the week. 

{¶ 31} Despite having some concerns with Mother's work schedule, the domestic 

relations court noted it was also "concerned that [Father's] extended family and girlfriend 

will be the primary caregivers for this child." The domestic relations court found this 

problematic because "third parties are not subject to the court's jurisdiction. Parenting 

orders cannot be enforced against them." 

{¶ 32} Applying the abuse of discretion standard as outlined above, we find no error 

in the domestic relations court's decision denying Father's request to modify the parties' 

shared parenting plan by designating him as I.M.'s residential parent for school purposes. 

That is to say the domestic relations court did not abuse its discretion by finding it was in 

I.M.'s best interest for Mother to retain that designation. Father disputes the domestic 
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relations court's decision by arguing the domestic relations court made a number of 

incorrect factual findings and gave "insufficient consideration" to several of the best interest 

factors. This, according to Father, resulted in the domestic relations court unduly focusing 

on evidence that was hostile to him while at the same time ignoring evidence that was 

unfavorable to Mother. We find no merit to Father's claims. 

{¶ 33} Father's argument is essentially a challenge to the weight the domestic 

relations court gave to each of the best interest factors. But, as this court has stated 

previously, it is the role of the domestic relations court "'to determine the relative weight to 

assign each factor, in relation to the others, when determining the [child's] best interest.'" 

Manis v. Manis, 12th Dist. Warren No. CA2014-05-070, 2014-Ohio-5086, ¶ 22, quoting 

Ruble v. Ruble, 12th Dist. Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 18. This court 

should not, and will not, second-guess the domestic relations court's decision in regard to 

the appropriate weight to be given to any one of those factors. In re A.B., 12th Dist. Butler 

No. CA2009-10-257, 2010-Ohio-2823, ¶ 35; see, e.g., Albert v. Albert, 2d Dist. Montgomery 

No. 24000, 2010-Ohio-6112, ¶ 32 ("[w]e defer to the trial court's determinations of the 

parties' credibility and of the appropriate weight to be given to the statutory factors"). 

{¶ 34} Father also argues this court should reverse the domestic relations court's 

decision and reinstate the magistrate's original fact findings and conclusions of law when 

considering "the magistrate's unique position to make credibility determinations." This we 

do not dispute. But, even when a matter is tried before a magistrate, "[i]t is the primary duty 

of the [domestic relations] court, and not the magistrate, to act as a judicial officer." Hart v. 

Spenceley, 12th Dist. Butler No. CA2011-08-165, 2013-Ohio-653, ¶ 12. This is because 

the domestic relations court, which serves as the judicial officer and ultimate fact finder, 

"retains the ability to employ its own judgment in a case even if it refers a matter to a 

magistrate." Id. at ¶ 13, citing Koeppen v. Swank, 12th Dist. Butler No. CA2008-09-234, 
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2009-Ohio-3675, ¶ 37. The domestic relations court is therefore "required to undertake an 

independent review of the objected matters in order to ascertain that the magistrate has 

properly determined the factual issues and properly applied the law." Panhorst v. Panhorst, 

9th Dist. Summit No. 28959, 2019-Ohio-126, ¶ 21. 

{¶ 35} The record indicates the domestic relations court adhered to its role as a 

judicial officer by independently reviewing the magistrate's decision. The domestic relations 

court specifically stated as much by noting it had conducted a de novo review of the record 

and the hearing transcript. Therefore, when taking into consideration the role of the 

domestic relations court, we find no error in the domestic relations court's decision making 

its own fact findings, conclusions of law, and credibility determinations that were contrary 

to those of the magistrate. This is particularly true here given the fact that the domestic 

relations court judge heard testimony from both Father and Mother directly. The domestic 

relations court was consequently able to make its own credibility determinations in deciding 

what was in I.M.'s best interest. 

{¶ 36} It is clear that Father believes he should be designated I.M.'s residential 

parent for school purposes. However, "[w]hile a parent's wishes about the care and control 

of his or her children must be considered by the court, 'the parent's wishes should not be 

placed before a child's best interest.'" (Internal brackets omitted.) Hall v. Hall, 12th Dist. 

Butler No. CA2018-05-091, 2019-Ohio-81, ¶ 22, quoting Harrold v. Collier, 107 Ohio St.3d 

44, 2005-Ohio-5334, ¶ 44. The domestic relations court, just as this court on appeal, must 

act in a way that places I.M.'s best interest above all else. Therefore, when considering the 

record properly before this court, the domestic relations court's decision denying Father's 

request to modify the parties' shared parenting plan by designating him as I.M.'s residential 

parent for school purposes was not an abuse of discretion. Accordingly, finding no abuse 

of discretion in the domestic relations court's decision, Father's first assignment of error 
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lacks merit and is overruled. 

{¶ 37} Assignment of Error No. 2: 

{¶ 38} THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING 

APPELLANT'S PARENTING TIME. 

{¶ 39} In his second assignment of error, Father argues the domestic relations court 

erred by modifying the parties' shared parenting plan as it relates to his and Mother's 

respective parenting time schedules. Specifically, Father challenges the domestic relations 

court's decision allowing him parenting time with I.M. on alternate weekends only if "he is 

within 100 miles" of Mother's residence in North Carolina or "up to seven days" if he is 

"within 50 miles" of Mother's residence. We review the modification of a parties' shared 

parenting plan regarding visitation or parenting time for an abuse of discretion. In re R.L.S., 

12th Dist. Warren No. CA2013-12-117, 2014-Ohio-3294, ¶ 23. We find no abuse of 

discretion here. 

{¶ 40} Father argues the domestic relations court abused its discretion by modifying 

his parenting time schedule because the modification "effectively prevents" him from 

spending time with I.M. other than on holidays and during I.M.'s summer vacation. Father 

supports this claim by noting his employment typically requires him to travel to New York, 

Pennsylvania, or New Jersey, but not North Carolina or the surrounding areas. This, 

according to Father, creates an illusory parenting time schedule that is patently unfair when 

considering it was Mother who made the "unilateral and unannounced" decision to move to 

North Carolina. 

{¶ 41} After a full and thorough review of the record, we find no abuse of discretion 

in the domestic relations court's decision. Father's chosen employment, coupled with 

Mother's move to North Carolina, required the domestic relations court to fashion an 

unorthodox parenting time schedule to serve I.M.'s best interest. Given the unique facts 
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and circumstances of this case, we commend the domestic relations court for fashioning 

the parenting time schedule that it did. This is because, as the record indicates, the 

domestic relations court went to great lengths to balance Father's request for additional 

parenting time with I.M. with its findings regarding I.M.'s best interest. We find no error in 

the domestic relations court's decision. 

{¶ 42} In so holding, we note that Father requested parenting time with I.M. at least 

one weekend each month. It is therefore apparent that Father would, at least at this point, 

like to spend more time with his son. Due to I.M.'s struggles in coping with Father's frequent 

absence from his life, it is clear that I.M. desires the same. However, as the domestic 

relations court found, "[i]t is not in [I.M.'s] best interest to travel for the approximate nine 

hours between the parents' residences for less than three days of parenting time." Given 

I.M.'s young age and need for stability, we agree with the domestic relations court's 

decision. 

{¶ 43} We also agree with the domestic relations court's decision to put in place a 

specific parenting time schedule and transportation order in the event that Father's 

employment places him closer to Mother's residence in North Carolina. Although it appears 

that Father's current employment typically requires him to travel to just New York, 

Pennsylvania, or New Jersey, the record is devoid of any evidence indicating Father would 

not be assigned to a project in North Carolina or the surrounding areas. Should that occur, 

which for both Father and I.M.'s sakes we hope that it does, the parties are now fully aware 

of their reciprocal obligations in providing I.M. with the opportunity to spend time with Father 

should the opportunity arise. 

{¶ 44} We have no doubt that Father would like to spend more time with I.M. And, 

as noted above, we also have no doubt that I.M. would like to spend more time with Father. 

But that does not mean Father can dictate when and where he should be able to exercise 
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his parenting time. Nor does that mean Father can command I.M. to be transported from 

North Carolina to Ohio should he happen to be at home in Ohio that weekend. It is I.M.'s 

best interest that controls, not Father's. Therefore, finding no merit to any of the arguments 

raised herein, Father's second assignment of error is overruled. 

Conclusion

{¶ 45} The domestic relations court did not err by finding it was in I.M.'s best interest 

for Mother to remain the child's residential parent for school purposes. We also find no 

error in the domestic relations court's decision to modify the parties' shared parenting plan 

as it relates to their respective parenting time schedules. Again, "[w]hile a parent's wishes 

about the care and control of his or her children must be considered by the court, 'the 

parent's wishes should not be placed before a child's best interest.'" (Internal brackets 

omitted.) Hall, 2019-Ohio-81 at ¶ 22, quoting Collier, 2005-Ohio-5334 at ¶ 44. Therefore, 

finding no error in the domestic relation court's decision, Father's two assignments of error 

are overruled. 

{¶ 46} Judgment affirmed. 

 RINGLAND, P.J., and PIPER, J., concur.