[Cite as Blumenauer v. Martino , 2020-Ohio-259.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

KELLY BLUMENAUER Plaintiff-Appellee

-vsDINO ANTHONY MARTINO Defendant-Appellant JUDGES: : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. : : : Case No. 2019 AP 08 0025 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas Count y Court of Common Pleas, Juvenile Division, Case No. 2013 CC 00286

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 27, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant MICHAEL JOHNSON JOSEPH TRIPODI 117 South Broadway 114 East High Avenue P.O. Box 1007 New Philadelphia, OH 44663 New Philadelphia, OH 44663Tuscarawas County, Case No. 2019 AP 08 0025 2
Gwin, J., {¶1} Father appeals the July 15, 2019 judgment entry of the Tuscaraw as County Court of Common Pleas, Juvenile Division, overruling his object ions to the magistrate’s decision and modifying the shared parenting plan. Facts & Procedural History {¶2} On November 20, 2013, appellee Kelly Blumenauer (“Mother”) file d a complaint for custody against Dino Martino (“Father”), with reg ard to their minor child, I.M., who was born on February 27, 2011. {¶3} The trial court issued a judgment entry on March 3, 2014, adopt ing the shared parenting plan submitted by the parties and finding shar ed parenting is in the best interest of the child. Pursuant to the shared parenting plan, Father had visitation with I.M. beginning on Wednesdays at 3:00 p.m. through Saturdays at 3:00 p.m. and Mother had visitation with I.M. beginning on Saturdays at 3:00 p.m. throug h Wednesday at 3:00 p.m. {¶4} Mother filed a motion to modify visitation on January 25, 2019, seeking to adopt the court’s new shared parenting plan and requesting that each parent exercise complete alternate weekends. The magistrate held a hearing on March 18, 2019 on the motion to modify shared parenting plan with regard to the visit ation schedule. {¶5} Mother testified that since 2014, I.M. has resided with her fou r days per week and with Father three days per week. Mother seeks to modi fy the visitation portion of the shared parenting plan so that each parent would have a f ull weekend to be able to spend with I.M. Currently, Mother does not get any full weeken ds with I.M. Mother is a respiratory therapist at a hospital, working every other weeken d. With the modified schedule, Mother would have I.M. on the weekends she is off. M other stated thisTuscarawas County, Case No. 2019 AP 08 0025 3 proposed plan does not deprive Father of time with I.M., but gi ves him more time with her. Mother believes the modification is in the best interest of I.M . because it gives I.M. more time with all of them, including her two siblings, as a family. They could do things on the weekends and have more consistent time together. I.M. is autis tic and is doing well in school. Mother does not believe a switch in schedule would imp act I.M. negatively, as I.M. gets along well with both parents and adjusts well to goin g back and forth to each home. Mother testified she has had problems getting telephone calls with I.M. every day when she is with Father. {¶6} On cross-examination, Mother testified she believes Father can change his work schedule to accommodate the modified visitation schedule. Mother did not talk to Father about the modification because Father does not like to t alk to her and it is very hard to try to discuss or change things with Father, as he does not want to change any visitation dates. Mother has asked Father several times if I.M . could come on Friday to see her sister play in the band, but Father refused to change t he visitation schedule. {¶7} Father testified they have been using the current visitation pl an for five years and he has never used a baby-sitter. Father’s days off are Wed nesdays and Thursdays. Father stated he cannot get every other weekend off from work b ecause he is a manager at a restaurant. As to phone calls from Mother, Father testifi ed Mother sometimes calls when he and I.M. are at the movies. Father is current on child support and provides insurance for I.M. Father and I.M. have a great time together. Father denied that Mother ever asked to have I.M. on Friday nights and stated his convers ations with Mother generally turn to arguments. Father believes changing the sche dule would be disruptive to I.M.Tuscarawas County, Case No. 2019 AP 08 0025 4
{¶8} Father stated the schedule that is currently in place is the on e that should be used because I.M. has no issues, so it should not be changed . Father has to plan vacations and things on his time, so Mother should plan her vac ations and things on her time. If Father is required to have I.M. on weekends and he ha s to work, he would have to get something arranged with one of his older daughters for c hild care. {¶9} The magistrate issued a decision on May 14, 2019. The magistra te found that while the parties have substantially followed the shared p arenting plan for the past five years, many things have chang ed since that time and will c ontinue to change as I.M., age three when the shared parenting plan was adopted and age se ven now, grows. The magistrate noted that Mother is requesting the trial court adop t its new standard schedule of companionship, giving each parent equal time, and allowing I .M. to share some weekends and weekend activities with her old siblings. Father is opposed to any change. {¶10} The magistrate found that it is time for a change and it is in I.M.’s best interest to enhance her life experience in each home and I.M. s hould benefit from participation in each household’s activities. The magistrate f urther found the lack of communication between Mother and Father does not make right of first refusal for daycare practical. Thus, the magistrate modified the shared pa renting plan as follows: deleted the right of first refusal concerning daycare in the sh ared parenting plan and ordered companionship time shall be pursuant to the court’s sta ndard order, with Mother designated as Parent 1 and Father designated as Parent 2. Thus , Father would have visitation with I.M. beginning on Tuesday night at 6:00 p.m. un til Thursday at 6:00 p.m. every other week and Tuesday night at 6:00 p.m. until Sunday at 6:00 p.m. the other weeks of the month.Tuscarawas County, Case No. 2019 AP 08 0025 5
{¶11} Father filed objections to the magistrate’s decision on May 23, 2019 and supplemental objections on July 10, 2019. Father argued the ma gistrate abused her discretion in modifying the shared parenting plan and in findin g it was time for a change when the status quo was working for I.M. {¶12} The trial court held a hearing on Father’s objections on July 1 5, 2019. The trial court overruled Father’s objections and approved and adop ted the magistrate’s decision. {¶13} Father appeals the July 15, 2019 judgment entry of the Tuscaraw as County Court of Common Pleas, Juvenile Division, and assigns the follo wing as error: {¶14} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, DINO MARTINO, WHEN IT OVERRULED THE OBJECTIONS TO THE MAGISTRAT E’S DECISION DENYING HIM THE STATUTORY PREFERENCES SET FORTH IN O.R .C. 3109.051(A),(B). {¶15} “II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S DECISION WHICH FOUND THE “NEW PARENTING SCHEDULE,” WHICH FINDING STATED “WOULD GIVE EACH PARE NT EQUAL TIME.” {¶16} In this case, the trial court modified the allocation of parent ing time. “The allocation of parenting time is a ‘term’ of a shared parenting plan.” Kovach v. Lewis , 5th Dist. Ashland No. 11-COA-018, 2012-Ohio-1512, quoting Bishop v. Bishop , 4th Dist. Washington No. 08CA44, 2009-Ohio-4537. Pursuant to R.C. 3109.0 4(E)(2)(b), the court may modify the terms of the shared parenting plan if the modifi cations are in the best interest of the child. Id.Tuscarawas County, Case No. 2019 AP 08 0025 6
{¶17} R.C. 3109.04(F), which sets forth the factors a trial court mus t consider in determining the best interest of the child, provides: In determining the best interest of a child * * * the court sha ll consider all relevant factors, including, but not limited to: (a) The wishes of the child’s parents regarding the child’s car e; (b) If the court has interviewed the child in chambers * * * th e wishes and concerns of the child, as expressed to the court; (c) The child’s interaction and interrelationship with the chil d’s parents, siblings, and any other person who may significantly a ffect 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 t he situation; (f) The parent more likely to h onor and facilitate court-approv ed 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 p arent 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 guilt y to any criminal offense involving any act that resulted in a child bei ng an abused child or a neglected child;Tuscarawas County, Case No. 2019 AP 08 0025 7 (i) Whether the residential parent or one of the parents subjec t to a shared parenting decree has continuously and willfully den ied 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. {¶18} A trial court enjoys broad discretion in custody proceedings. Cossin v. Holley , 5th Dist. Morrow No. 2006 CA 0014, 2007-Ohio-5258, citing Davis v. Flickinger , 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). This Court reviews the merits of a trial court’s modification of the terms of a shared parenting plan th rough R.C. 3109.04(E)(2)(b) under an abuse of discretion standard. Kovach v. Lewis , 5th Dist. Ashland No. 11-COA018, 2012-Ohio-1512. In order to find an abuse of discretion, we must determine the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶19} Furthermore, as an appellate court reviewing evidence in custod y matters, we do not function as fact finders; we neither weigh the eviden ce nor judge the credibility of the witnesses. Our role is to determine whether there is re levant, competent, and credible evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger , 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386. The trial court is “best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the profe rred testimony.” Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review in a child custody determination is especially crucial “when there may be much evidence byTuscarawas County, Case No. 2019 AP 08 0025 8
the parties’ demeanor and attitude that does not translate to t he record well.” Davis v. Flickinger , 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). I. {¶20} In his first assignment of error, Father argues the trial court committed error in giving deference to Mother’s employment schedule but not Fat her’s, as the court was required to consider both parents’ employment schedule. Father also contends the trial court’s modification denies Father frequent and continuing cont act with the child. {¶21} We disagree with appellant. We first note that the statute cit ed by appellant with regards to consideration of each parent’s employment sched ule is applicable “if the court has not issued a shared parenting decree.” R.C. 3109.051 . Further, even under this section, each parent’s employment schedule is only one fac tor the court should consider in establishing parenting time. While the magistrate and trial court recognized Father may have to employ a baby-sitter for the hours he works during his weekend with I.M., the trial court also weighed the balance of the best inte rest factors and found the modification is in the best interest of I.M. A review of the m agistrate’s order and trial court’s judgment shows the trial court considered Father’s argu ment and the other best interest factors in determining whether to modify the shared pa renting plan. {¶22} Additionally, we find the trial court’s modification does not d eny Father frequent and continuing contact with I.M. Under the modified p arenting time schedule, Father will have parenting time with I.M. frequently as he will have parenting time multiple days every week, and continuously, as the schedule of seeing he r several days per week and every other full week-end repeats each month. {¶23} Father’s first assignment of error is overruled.Tuscarawas County, Case No. 2019 AP 08 0025 9

II. {¶24} In his second assignment of error, Father contends the modifie d parenting time schedule does not give equal time to each parent because F ather is working during some of his parenting time and, as such, the trial court abused its discretion in granting the modification of parenting time. {¶25} As detailed above, the trial court may modify the terms of a sh ared parenting plan if the modification is in the best interest of the child. Upon our review, we find no abuse of discretion in the trial court’s determination that the modification is in the best interest of I.M. The magistrate and trial court considered the facts of the case and arguments of the parties in reaching the conclusion that a modi fication would be in the best interest of I.M. As noted by the magistrate, the parentin g time schedule was agreed to by the parties when I.M. was three years old and she is now seven years old. Pursuant to the modified parenting schedule, I.M. can spend time with ea ch family for an entire weekend. Simply because Father may be working during some of h is parenting time does not mean the modified schedule is not in the best interest of I .M., as this is just one factor in the overall determination of whether the modification is in the child’s best interest. See Kovach v. Lewis , 5th Dist. Ashland No. 11-COA-018, 2012-Ohio-1512 (overruling Mother’s argument that the trial court erred when it modified t he shared parenting plan without taking into consideration the parties’ work schedules). {¶26} Father’s second assignment of error is overruled. {¶27} Based on the foregoing, Father’s assignments of error are overr uled.Tuscarawas County, Case No. 2019 AP 08 0025 10
{¶28} The July 15, 2019 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed.

By Gwin, J., Hoffman, P.J., and Wise, J., concur