Faulks v. Flynn

[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-in-

circumstances 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.