Depascale v. Finocchi

[Cite as Depascale v. Finocchi, 2010-Ohio-4869.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ANGELA M. DEPASCALE, )
) CASE NO. 08 MA 216
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
JOSEPH S. FINOCCHI, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Domestic Relations Division,
Case No. 05 DR 298.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney James Vivo
721 Boardman-Poland Rd.
Suite 201
Youngstown, OH 44512

For Defendant-Appellant: Attorney Shirley Smith
1399 E. Western Reserve Rd.
Suite 2
Poland, OH 44514

JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

Dated: September 30, 2010
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DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court,
Appellant's brief and oral argument before this court. Appellant Joseph S. Finocchi
appeals the October 1, 2008 decision of the Mahoning County Court of Common Pleas,
Domestic Relations Division, which found that there was not a change in circumstances
among Joseph, Appellee, Angela M. Depascale, or their minor children that was sufficient
enough to warrant a modification of the parties' parental rights and responsibilities. The
trial court's decision maintained the every-other-week parenting schedule from the 2005
Shared Parenting Plan, but made several modifications to the plan, including designating
Joseph as the residential parent for medical and school purposes.
{¶2} Joseph argues that the trial court's finding of no change in circumstances
was against the manifest weight of the evidence. Joseph further argues that the trial
court abused its discretion by maintaining equal parenting time in the Shared Parenting
Plan, and by deciding that the modified Plan was in the best interest of the children
without support from the record. Finally, Joseph argues that the trial court committed
multiple errors in its calculation of child support.
{¶3} In general, the overall detail of the trial court's entry, including its lengthy
findings of fact, support its conclusions. It is true that there are a variety of negative
circumstances affecting the parties, primarily due to the parents' ongoing animosity and
inability to communicate or cooperate. However, these circumstances existed at the time
of the original 2005 decision, and the trial court found Angela and Joseph's claims of
extreme conflict to be exaggerated and lacking in credibility. Although it is a close issue
as to whether the ongoing and perhaps worsening conflict between the parents
constituted a change in circumstances, the trial court did not abuse its discretion by not
reallocating the parties' parental rights and responsibilities. As for the Shared Parenting
Plan, it appears that the testimony of several witnesses could have supported a decision
to give more parenting time to Joseph, but such a decision would have to be made
through a reallocation of parental rights and responsibilities, not through a modification of
the terms of a shared parenting agreement. Finally, Joseph's objections to the trial
court's child support calculations were not raised in the trial court, and thus have been
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waived on appeal. Moreover, the trial court's considerations of the parties' incomes and
its decision not to implement a downward deviation from the standard child support
calculation did not involve an abuse of discretion. Accordingly, the judgment of the trial
court is affirmed.
Facts and Procedural History
{¶4} Joseph and Angela were married on April 4, 1998, when the parties were 32
and 20 years old, respectively. The parties' have two children, Dominic, born on June 5,
1999 and Anna, born on April 30, 2001.
{¶5} The parents were separated around March of 2005. Both parents filed
complaints for divorce seeking custody of the children, and the trial court consolidated the
cases. According to an August 29, 2005 Magistrate's Order, the parties contested which
parent should determine where the son went to school, and Angela cited various incidents
where Joseph untimely delivered the children for parenting time. The magistrate decided
that the son should attend Angela's local school. Both parties filed motions to set aside
the decision.
{¶6} Joseph proposed a Shared Parenting Plan wherein the children would
spend each weekday evening and night with Joseph, each weekday morning and
afternoon with Angela, with each parent caring for the children every-other weekend.
Angela proposed a Shared Parenting Plan wherein the children would reside with each
parent for a full week, every other week, with exchanges on Sundays.
{¶7} The matter proceeded to trial on December 12, 13, 15, 16, 20, 21, and 22,
2005. The parties subsequently agreed to a Shared Parenting Plan, which largely
followed Angela's suggested plan. The trial court's December 27, 2005 decision granted
the divorce and incorporated the Shared Parenting Plan. The decision obligated Joseph
to pay spousal support until June 30, 2008, and $794.64 per month in child support
(including poundage). The Shared Parenting Plan provided an equal allocation of
parental rights and responsibilities, with the children residing with each parent on
alternating weeks, with exchanges on Sundays. The Shared Parenting Plan noted that
no deviation from the standard child support amount was warranted due to the disparity in
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the parties' incomes.
{¶8} In early 2007, the parties filed competing motions to find the other in
contempt, to modify allocation of parental rights and responsibilities to be named sole
residential parent, and requesting that the Shared Parenting Plan be terminated. Joseph
alternatively requested to be named the residential parent for school and medical
purposes, as well as seeking a decrease in child support.
{¶9} The trial court ultimately appointed Melissa Dinsio GAL on July 19, 2007and
Timothy Khol as a psychological examiner on January 3, 2008.
{¶10} On March 21, 2008, subsequent to a hearing on Joseph's motion to modify
child support based on changes in income, the trial court lowered Joseph's monthly child
support obligation to $547.66 (including poundage), and noted that the amount would be
recalculated upon the July 1, 2008 termination of spousal support. The worksheet
continued to check "mother" as the residential parent and legal guardian, despite the
shared custody arrangement.
{¶11} On June 4, 2008 Angela filed another motion to show cause, alleging that
Joseph repeatedly violated the court-ordered Sunday 6:00 p.m. exchange time for the
children. The issues in the parties' various motions proceeded to trial on June 17, 18, 25,
and July 21, 2008.
{¶12} On the first day of trial, the parties presented testimony only related to the
parents' contempt motions. The second day of trial began with Joseph, who testified as
to his employment, living situation, parenting style, and the background of the 2005
divorce and shared-parenting plan. Joseph discussed his problems with Angela's actions
regarding the children's medical issues, school issues, and the children's sleeping
arrangements. Joseph described the merits of his living environment, local school, and
extracurricular activities he provides for the children. Joseph discussed the conflicts
between the parents regarding the children's schedules and their participation in
extracurricular activities. Joseph described incidents that he believed indicated neglect or
abuse of the children by Angela, and testified as to the involvement of Children Services.
Joseph further described conflicts between the parents regarding exchanges of the
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children and extracurricular activities, and communication problems.
{¶13} Angela also testified as to her employment, living situation, parenting style,
the activities available for the children in her community, and the children's relationships
with their extended family. Angela described the conflicts that have occurred between the
parents around the children's extracurricular activities. Angela described the merits of her
local school, her relationships with the teachers, and the children's rate of absenteeism
when with Joseph. Angela described her actions regarding medical issues, the incidents
that led Joseph to involve Children Services, and the conflicts between the parents
regarding medical issues and exchanges of the children.
{¶14} The trial court additionally heard the testimony of Jennifer Carey, a school
counselor who facilitates the children's group sessions for students with divorced parents;
Richard W. Lillo, a licensed professional clinical counselor who has provided counseling
services for the children from 2005 to the present; John Robert Elko, Jr., Angela's fiancé;
Maria Depascale, Angela's mother; Timothy Khol, a licensed psychologist who testified
regarding the psychological custody evaluation that he conducted with the parties; Anna
Marie Beres, a neighborhood friend of Joseph; and Melissa D. Dinsio, the Guardian ad
Litem for the children.
{¶15} On August 15, 2008 the trial court issued an interim order, determining that
the Shared Parenting Plan should continue, and modifying the Plan to designate Joseph
as the residential parent specifically regarding school and health issues, and changing the
child-exchange time from Sundays at 6:00 p.m. to Wednesdays at 7:00 p.m. The order
also suggested an alternative shared parenting schedule, and requested that the parties
filed proposed shared parenting schedules. Angela filed a notice of appeal from this
order, but her appeal was eventually dismissed for lack of prosecution. Angela filed a
renewed motion for contempt on August 19, 2008.
{¶16} On August 26, 2008, Joseph filed a memorandum on parenting time,
requesting primary parenting time with a standard visitation order for Angela. Joseph
alternatively requested the parenting schedule used prior to the divorce, wherein the
children would stay with Joseph every night, with Angela during the afternoons after
school, and with each parent on alternating weekends. Joseph also filed a motion for
 -6-

contempt, alleging that Angela violated the shared parenting order by failing to adequately
provide for the children's hygiene, feeding, and sleeping arrangements, and alleging that
Angela has prohibited the children from calling Joseph on the telephone.
{¶17} On October 1, 2008, the trial court entered a Final Order of Modification of
Shared Parenting Plan and Contempt. The trial court's entry denied the parties' original
motions to show cause, denied Joseph's August 26, 2008 motion to show cause, but
granted Angela's August 19, 2008 motion, and found Joseph in contempt for his repeated
failure to follow the parenting schedule. The trial court sentenced Joseph to three days in
jail, to be purged conditioned on father's cooperation with the amended shared parenting
orders.
{¶18} The trial court held that the facts presented by the parties did not sufficiently
indicate a change in circumstances, and declined to reallocate parental rights and
responsibilities or terminate the Shared-Parenting Plan. The trial court ordered that the
Shared Parenting Plan continue on a weekly basis, with exchanges on Wednesdays
around the children's school schedule, and on Wednesdays at 7:00 p.m. during the
summer and eliminated midweek parenting time.
{¶19} Joseph was designated as the residential parent for medical decisions and
school placement purposes. The trial court ordered that the children are not permitted to
stay overnight at third-party residences on any school night. The trial court further
ordered that the parents are to make prior agreements to the children's extracurricular
activities, and that one parent is to provide the transportation for their activities if the
location is inconvenient to the other parent's residence. The trial court modified the
amount of child support in light of Angela's change in income from the June 30, 2008
termination of spousal support. The trial court ordered that Joseph pay $685.53 per
month for child support.
{¶20} After Joseph timely filed a notice of appeal, he moved for a stay of the
appeal, representing the resolution of motions pending before the trial court could resolve
the matter. We granted a stay until March 9, 2009. After several extensions sought by
Joseph's counsel to file both the transcript and his brief, we granted Joseph leave to file
his brief instanter September 25, 2009. After determining that Angela would not be filing
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a brief, the matter was set for oral argument on July 14, 2010. Accordingly, this court
may consider Joseph's statement of the facts and issues as correct and reverse the
judgment if Joseph's brief reasonably appears to sustain such action. App.R. 18(C).
Reallocation of Parental Rights and Responsibilities
{¶21} In his first assignment of error, Joseph asserts:
{¶22} "The trial court erred in finding no change in circumstances, as and against
the manifest weight of the evidence, thereby failing to terminate the shared parenting plan
and further failing to grant full legal custody to the defendant/father."
{¶23} R.C. 3109.04(E)(1)(a) governs the modification of an existing decree
allocating parental rights and responsibilities, and states, in pertinent part:
{¶24} "The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have arisen
since the prior decree or that were unknown to the court at the time of the prior decree,
that a change has occurred in the circumstances of the child, the child's residential
parent, or either of the parents subject to a shared parenting decree, and that the
modification is necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the prior decree or
the prior shared parenting decree, unless a modification is in the best interest of the child
and one of the following applies:
{¶25} "(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the designation of
residential parent.
{¶26} "(ii) The child, with the consent of the residential parent or of both parents
under a shared parenting decree, has been integrated into the family of the person
seeking to become the residential parent.
{¶27} "(iii) The harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the child."
{¶28} Thus, multiple steps must be satisfied in order for the trial court to reallocate
parental rights in the context of a shared parenting agreement: (1) there must be an initial
 -8-

threshold showing of a change in circumstances of the child or either parent, brought
about by facts that have changed since the date of the prior decree or which were
unknown to the court at that time; and (2) if circumstances have changed, the court may
reallocate parental rights as necessitated by the best interests of the child. Id. "The
statute also requires the court to 'retain the residential parent designated by the prior
decree' unless (1) the 'modification is in the best interest of the child' and (2) one of three
additional factors applies. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876
N.E.2d 546, at ¶21.
{¶29} The intent of R.C. 3109.04 is to spare children from a constant tug of war
between parents who may file a motion to modify parental rights and responsibilities each
time the parent without full custody thinks he or she could provide the children with a
better environment. Id. at ¶34; Surgenavic v. Surgenavic, 7th Dist. No. 08 MA 29, 2009-
Ohio-1028, at ¶14, citing Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 445 N.E.2d
1153. Even when both parents in a shared parenting agreement request a reallocation of
parental rights and responsibilities, a change in circumstances still must be found before
the trial court may grant either party's request. See Fisher at ¶2, 37.
{¶30} A trial court has broad discretion in its determination of parental custody
rights. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Because
custody issues are some of the most difficult and agonizing decisions a trial judge must
make, he or she must have wide latitude in considering all the evidence and such a
decision must not be reversed absent an abuse of discretion. Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159. Therefore, a trial court's custody
determination should not be disturbed unless it constitutes an abuse of discretion. Bechtol
v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178.
{¶31} With respect to this Court's duty of deference to the trial court in custody
determinations, the Ohio Supreme Court has stated: "The discretion which a trial court
enjoys in custody matters should be accorded the utmost respect, given the nature of the
proceeding and the impact the court's determination will have on the lives of the parties
concerned. The knowledge a trial court gains through observing the witnesses and the
 -9-

parties in a custody proceeding cannot be conveyed to a reviewing court by a printed
record. In this regard, the reviewing court in such proceedings should be guided by the
presumption that the trial court's findings were indeed correct." Miller v. Miller (1988), 37
Ohio St.3d 71, 74, 523 N.E.2d 846. (Internal citations omitted.)
{¶32} After making extensive findings of fact, the trial court stated in its
conclusions of law, that there was no change of circumstances to warrant a reallocation of
parental rights and responsibilities, and did not continue on to analyze the children's best
interests or other factors.
{¶33} In order for a trial court to make the threshold determination that there has
been a change of circumstances, the movant need not prove that there had been a
"substantial" change in circumstances, but "the change must be a change of substance,
not a slight or inconsequential change." Davis, supra, at 418. The phrase, "change in
circumstances," is generally "intended to denote an event occurrence, or situation which
has had a material and adverse effect upon a child." Rohrbaugh v. Rohrbaugh (2000),
136 Ohio App.3d 599, 604-605, 737 N.E.2d 551. The trial court has the broad discretion
to determine whether sufficient changed circumstances have occurred between the
parents in order to proceed past this threshold question. Davis, at 418.
{¶34} "Ohio courts have considered a variety of factors that are relevant to the
change-in-circumstances requirement of R.C. 3109.04(E)(1)(a). For example, relevant
factors presented in other cases have included 'a new marriage that creates hostility by
the residential parent and spouse toward the nonresidential parent, frustrating attempts at
visitation,' Davis, 77 Ohio St.3d at 419, 674 N.E.2d 1159; the advancement of a child
from infancy to adolescence, Perz v. Perz (1993), 85 Ohio App.3d 374, 377, 619 N.E.2d
1094; unruly behavior of the residential parent involving the police, Butler v. Butler (1995),
107 Ohio App.3d 633, 669 N.E.2d 291; and fights between the residential parent and a
new spouse that required police intervention, along with the fact that the residential parent
had moved six times in two years, Dedic v. Dedic (Jan. 27, 1999), Wayne App. No.
98CA0008, 1999 WL 33445." In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-
2335, 866 N.E.2d 467, at ¶18.
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{¶35} In this court's recent history, we have found that a combination of factors
must be considered to amount to a change in circumstances. See, e.g., Gomez v.
Gomez, 7th Dist. No. 08 NO 356, 2009-Ohio-4809; Burnip v. Nickerson, 7th Dist. No. 07-
CO-42, 2008-Ohio-5052.
{¶36} In Gomez, both parties had remarried, the mother had changed residences,
there were many examples of increased hostility between the father and the new step-
father, both parties were repeatedly untimely for exchanges, the mother had been found
in contempt, the mother attempted to block the father from receiving medical information
about the children, the mother prevented the father from having three of his five weeks of
summer visitation, police intervention was repeatedly sought, and Children Services was
contacted regarding child abuse allegations. Gomez at ¶23-33. We held that the
combination of these events constituted a change in circumstances, and concluded that
the trial court abused its discretion in not making such a finding. Id. at ¶34.
{¶37} In Burnip, the mother alleged a change in circumstances because the father
kept the children in daycare or under the care of the paternal grandparents most of the
time, the father smoked around the children and did not adequately care for their clothing,
hygiene or the home, the father failed to attend the children's school activities, and
inadequately cared for the daughter's medical issues. Burnip at ¶3, 23, 26-37. This court
noted that many of the mother's complaints were of circumstances that existed prior to
the parties' dissolution, and that other witness testimony rebutted some of the mother's
other claims. Id. at ¶40-41. This court concluded that the trial court did not abuse its
discretion in finding that a change of circumstances had not occurred between the
parties. Id. at ¶42.
{¶38} The variety of factors in the above cases demonstrates that the presence of
any one factor alone will not dictate whether there has been a change of circumstances
between the parties. The specific and unique circumstances of the parties will always
frame the issue, and the occurrence of certain events may or may not constitute a change
in circumstances depending on the context in which they occurred, and depending on the
surrounding totality of the circumstances.
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{¶39} Here, Joseph points out a number of factors that he argues support a
finding of a change in circumstances. It is difficult to examine whether there has been a
change in circumstances in this case because the circumstances of the parties at the time
of the 2005 Shared Parenting Plan are largely not in the record. In the more recent
proceedings, Joseph not only had the burden of proving the negative circumstances of
the parties, but also had the burden of proving that those circumstances were different
enough and not contemplated by the trial court at the time of the 2005 proceedings to
warrant a finding of changed circumstances in 2008. In view of this problem, the trial
court noted during the proceedings that it did not have the prior history of the case, and
asked that the parties provide background information.
{¶40} Although the parties did not supply the transcripts for the proceedings that
led up to their divorce and original Shared Parenting Plan in 2005, the transcript of an
August 26, 2005 hearing regarding school attendance of the children was included in the
record. During that hearing, it was mentioned that Angela worked part-time at the time of
the divorce, that Angela's work interfered with her ability to be with the children at
pertinent times, such as exchange times or school pickup times, necessitating
Depascale's constant assistance, and that Joseph had issues with "some of the things he
thought was [sic] occurring at mom's house, * * * some issues with sleeping
arrangements, alleged boyfriend here [sic] and also some report of so-called living
conditions at the grandmother's house where * * * they were residing at one point." The
parents were already experiencing conflict and problems regarding the exchanges of the
children. At that 2005 hearing, the trial court stated that the parents were not cooperating
and "aren't communicating at best." Though limited, this information provides a larger
context for Joseph's current claims, and demonstrates that many of the new
circumstances described by Joseph existed prior to the 2005 decree, as was the case for
many of the claims in Burnip.
{¶41} As for Joseph's first argument, he asserts that there has been a change in
circumstances and a failure of the Shared Parenting Plan because Angela has the
children sleeping in multiple residences each week, often on the floor. Joseph also points
out that these sleeping arrangements are caused by Angela's part-time job, which
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sometimes requires her to leave the home before dawn.
{¶42} At trial, both parties testified that Angela keeps the children overnight at
Depascale's residence approximately two times per week due to Angela's work schedule.
Depascale testified that the children used to sleep on a mattress on the floor at her
house, but noted that she had purchased an additional bed shortly before the time of trial,
so that the children would no longer have to sleep on the floor. Lillo, the family counselor,
testified that Joseph brought the children to counseling around July of 2005, and voiced
concerns at that time regarding "living conditions at the mom's and the grandmother's
house." Lillo stated that Joseph raised issues during the beginning of counseling
regarding the children's sleeping arrangements, staying with Depascale, and sleeping on
the floor.
{¶43} Lillo's testimony indicates that Joseph's concerns were voiced before the
2005 Shared Parenting Plan, and this particular argument thus does not involve "facts
that have arisen since the prior decree or that were unknown to the court at the time of
the prior decree." R.C. 3109.04(E)(1)(a). See, also, Burnip, at ¶40. Moreover, the trial
court's decision indicates that it did take the objectionable sleeping arrangements into
account. The trial court considered this issue to be related more to the terms of the
Shared Parenting Plan than custody, and specifically included instructions in the
Amended Shared Parenting Plan that the parties are not permitted to keep the children at
a third-party's home on any school night. Instead, the Plan instructs: "If either parent is
gone overnight during a school weeknight, the other parent shall have the children."
{¶44} Joseph also argues that a change of circumstances occurred due to the fact
that Depascale moved to a residence further away from Angela's residence. According to
testimony during trial, Depascale lived in the same apartment building, across the hall
from Angela, until approximately October of 2007. Depascale then moved to a residence
that is a two or three minute drive from Angela's residence. Joseph argues that this
change is significant, as Depascale provides extensive support and assistance to Angela.
Although Depascale's distance of one or two miles would not be much of an obstruction
of Angela's access to Depascale, it could be seen as a big change given that Angela
possibly had immediate access to Depascale at most times in the previous living
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arrangement. Given that all parties consistently testified that Depascale is the primary
person in Angela's support network, Depascale's location could be a significant factor.
However, there was no indication during trial that Angela's reliance on Depascale, or the
children's time spent with Depascale, either increased or decreased due to the move.
Although Depascale's move was a change, there is no testimony indicating how such a
change impacted Angela or the children.
{¶45} Next, Joseph asserts that there has been a change of circumstances
warranting a modification of custody because Angela has potentially subjected the
children to neglect and abuse. Specifically, Joseph points out that upon his instigation
Lillo made reports to the Children Services Board as required by statute on two separate
occasions in 2006, once regarding concerns of nutrition and hygiene and once due to a
report that Elko and Angela exposed themselves to the children. The record indicates
that these two reports, as well as a third report predating the 2005 decree, were made at
Joseph's instigation.
{¶46} In a June 29, 2005 police report, Joseph claimed that the children stated
that Elko hit them in the neck. According to Joseph, only he spoke to the police, the
children were not interviewed, and no one could locate any signs of injury on the children.
Children Services sent a letter on June 30, 2005 stating "Referral rejected. Referral does
not meet criteria for Children Services involvement." This instance was not thoroughly
addressed in testimony, as it predated the December 2005 decree.
{¶47} On February 24, 2006, a claim of medical neglect was made. In a letter
dated March 17, 2006, Children Services stated that its case disposition was
unsubstantiated. According to a letter written by Lillo, Children Services contacted Lillo
on March 17, 2006 and requested information regarding the children, presumably
regarding this claim. Lillo responded on April 11, 2006, and noted that there were some
issues reported to him by Joseph regarding the children's nutrition and hygiene, such as
the children being given licorice and cereal as a meal, the children complaining of being
hungry, and stating that they were not bathed on a daily basis. Lillo testified that Angela's
feeding of the children was an original concern when the children were brought to him,
but noted that the nutritional issue "has not been brought up in a while."
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{¶48} On July 26, 2006, Joseph and then the children reported to Lillo that Angela
and Elko were committing inappropriate behavior, described by Lillo as "wiggling their
butts or pulling their pants down and various things and maybe showing of a private part."
Lillo made a report to Children Services. In a letter to Angela dated August 9, 2006,
Children Services reported: "Based upon our findings: The case will be closed.
Suggested follow up services: Find a counselor for the children that you and your ex-
husband can agree upon. Use the court as needed to mediate." Elko denied exposing
himself or otherwise acting inappropriately in front of the children. Dinsio testified that
when she asked the son about his report of Angela and Elko exposing themselves, the
son told Dinsio that the incident did not actually happen, and refused to speak further on
the subject. When Dinsio asked the daughter about the incident, the daughter told Dinsio
that the son had reported the exposure incident because "he thought it would make
daddy happy."
{¶49} Although all of Joseph's reports of abuse were summarily closed or found to
be unsubstantiated, they could support a finding of a change in circumstances. Repeated
reports of child abuse could indicate new problems, either of the parent being reported or
of the parent making the report of abuse. For example, in Gomez, this court found
reports to Children Services to be significant, regardless of the fact that they were
unsubstantiated. Gomez at ¶33. However, the unsubstantiated reports of child abuse in
Gomez were accompanied by a variety of other factors further indicating a change in
circumstances in order for this court to conclude that the trial court's decision was an
abuse of discretion. Moreover, this case is somewhat distinguishable from Gomez and
more aligned with Burnip in that Joseph's unsubstantiated reports of abuse or neglect
occurred both before and after the 2005 decree.
{¶50} Next, Joseph argues that a change in circumstances has occurred due to
Angela's deviation from the Shared Parenting Plan, specifically through her inadequacies
related to school, medical concerns, and the children's extracurricular activities. The
parties' testimony was extensive and widely divergent on this topic, and inspired
commentary from the trial court as to the questionable credibility of both parents.
 - 15 -

{¶51} Joseph provided various examples where he believed that Angela either
overreacted or underreacted to the children's health issues or illnesses, and opined that
Angela cannot recognize what proper medical care is. Witnesses such as Khol and the
GAL opined that Angela generally acted appropriately in response to the children's health
issues. Khol noted that the children were appropriately medically cared for by both
parents, that the parties had different parenting styles, and that the main problem on this
topic was the conflict between the parents.
{¶52} Joseph raised additional concerns at trial that Angela attempted to keep
Joseph from receiving medical information regarding the children, either by failing to
inform Joseph of visits to the doctor, or by specifically instructing medical providers to
contact her and to not contact Joseph. Angela conceded that she had sometimes told
medical providers to communicate primarily through her in order to avoid conflict, but
denied disallowing medical providers to contact Joseph. Angela testified about a more
recent incident where the son was ill, Joseph did not inform her of the condition or his visit
to the hospital, and Angela was denied access to the son's information at the hospital.
{¶53} As for the school issue, Joseph testified to several incidents where Angela
failed to update contact information, and failed to adequately prepare the children for
school, in terms of vaccinations and registration, risking their suspension from school.
Joseph testified that Angela did not ensure that the children had money for school
lunches, which again required that Joseph take action to resolve the situation. Joseph
also alleged that the children's scholastic performance deteriorates whenever they are
with Angela. Angela countered that she actively encourages the children's scholastic
efforts, and has worked with teachers who have recommended additional educational
programs for the son. Angela testified that the children's absences from school during the
last school year were primarily during Joseph's parenting time, with 13 of the daughter's
15 absences and 13 of the son's 17.5 days of absence occurring with Joseph.
{¶54} Each party accused the other of refusing to allow the children to participate
in extracurricular activities that the other parent had set up. Both parties accused the
other of not providing them with information about the activities, and conversely denied
claims that they had in fact been offered information about the activities and nonetheless
 - 16 -

refused. Angela's testimony indicated that she will not take the children to Joseph's
soccer league due to distance, scheduling conflicts, and because Joseph publicly berated
her when she did take the children to the soccer league. Angela alleged that Joseph will
not take the children to Angela's activities because he had not been consulted first, or
otherwise did not approve of them. Dinsio noted that both parties supported the idea of
the children participating in a variety of extracurricular activities, but "are both probably a
little control hungry in that situation." The trial court noted, "I am holding you both
accountable for the fact that you are acting like children. In whatever you do, she doesn't
participate. In whatever she does, you don't participate in."
{¶55} As with the sleeping arrangements, the parents' communication and
cooperation surrounding education, activities and medical issues was an issue that was
raised and known to the court at the time of the 2005 decree. For example, Joseph
testified that he had requested certain terms in the 2005 Shared Parenting Plan due to
"The past history of the medical care that would not be provided to the children for those
exact same reasons; incorrect information, not following the physician's instructions, not
keeping scheduled appointments. * * *. What prompted me to write that into the decree
was I did not want past history to repeat itself." And again, as with the children's sleeping
arrangements, the trial court considered this issue to relate more to the Shared Parenting
Plan than to custody, and modified the Shared Parenting Plan so that Joseph would be
the primary contact and have the primary responsibility in making all decisions regarding
the children's school and medical needs.
{¶56} Next, Joseph argues that a change in circumstances occurred due to further
deterioration of communication between the parties, and due to Angela's alienation of the
children from Joseph. Regarding the alienation issue, Lillo testified that the children
reported to him that Angela removes Joseph's name from children's drawings. Angela
testified that Joseph has frequently been argumentative and derogatory toward her in
front of the children, again both before and after the 2005 decree. Khol testified that the
children reported "that they often hear their dad making derogative statements to mother
and about mother, such as about her mental health, about being crazy, mixed up in the
head, this sort of thing." Khol opined that Joseph has an "inability to communicate
 - 17 -

respect and acceptance of their mother."
{¶57} Both parties testified to repeated instances of breakdowns in
communication. Angela testified that she tries to communicate with Joseph but "it's just
impossible to try to [communicate] with him. It's either his way or no way." Joseph
testified that he cannot communicate with Angela because she "freak[s] out" and attempts
to contact him too frequently through his work phone and email. Joseph did concede that
his only email address was through work. Angela testified that she sends Joseph
information via certified letters because he otherwise refuses to engage with her. The
court noted the inability to communicate was mutual. Khol opined that the main obstacle
to the Shared Parenting Plan was the parties' inability to coordinate or communicate, and
concluded that one parent should have custody of the children because he did not believe
that "this is a couple that can handle shared parenting."
{¶58} In addition to the contact with Children Services, both parties have
contacted the police numerous times over disagreements, or when the other parent is late
in arriving to exchange the children. Joseph and the maternal grandmother have also
repeatedly called or threatened to call the police to eject each other from their property
during exchanges of the children.
{¶59} Both Joseph and Angela filed contempt motions for failure to comply with
exchange times, which the trial court initially denied. Subsequent to the June 2008
hearings, both parties filed renewed contempt motions, and the trial court found Joseph in
contempt for his repeated failure to follow the parties' parenting schedule. Angela
suggested that the parties change the exchange time to Wednesdays after school to
alleviate timing issues. Joseph refused to suggest a different child-exchange time or any
other changes, stating that it will not work no matter what changes they make.
{¶60} Again, within the context of the parties' entire relationship, Joseph only
established that the parties continue to have a terrible relationship, and failed to establish
that the relationship deteriorated or changed since the 2005 decree. It does seem that
the conflict between the parties, regardless of whether it constitutes a marked change
from prior years, generally indicates that the terms of the Shared Parenting Plan is not
working. However, the trial court addressed this problem through a modification of the
 - 18 -

terms of the Shared Parenting Plan.
{¶61} Finally, Joseph argues that there has been a change in circumstances
because a Psychological Custody Evaluation indicated that Angela has certain intellectual
and emotional deficiencies, and that the children have a primary emotional attachment to
Joseph. Khol performed a Psychological Custody Evaluation of Angela, Joseph, and the
children. Khol found both parents to have various negative aspects to their personalities.
Khol found that the children were well-adjusted, "strikingly well-behaved," and had a
close affectionate bond with one another, possibly compensating for the conflict between
the parents. Khol testified that the children expressed a primary attachment with Joseph.
{¶62} Khol's evaluation reported how each party functioned on a general level,
and did not indicate that the parties' psychological functioning or intelligence affected the
circumstances of the parties differently since the 2005 judgment. Thus this factor does
not affect the trial court's consideration of a change in circumstances.
{¶63} Looking at all of the factors enumerated by Joseph, he has presented a
problem of overall friction, hostility and lack of communication between the parents, which
certainly is not a situation that promotes the best interests of the children. As noted by
the Second District, an ongoing war between bitter divorced parents, such as the war
apparently going on here, has "no victors and the ultimate casualties are the children,
who stand to suffer deeply and permanently unless their parents can learn to control their
hostility and anger towards each other." Buckingham v. Buckingham, 2d Dist. No. 1626,
2004-Ohio-1942, at ¶3.
{¶64} These are unfortunate circumstances, but Joseph's arguments do not
indicate a change in circumstances. Joseph's arguments regarding the children's
sleeping arrangements, Angela's reliance on the grandmother for child care and support,
the conflicts created by Angela's work schedule, and lack of communication and
cooperation between the parties in medical, school, and all other situations were all
circumstances that existed prior to and at the time of the 2005 decree and Shared
Parenting Plan. Additionally, the trial court repeatedly communicated its belief that the
parties' depiction of their mutual conflict was exaggerated to a certain extent and thus
 - 19 -

unreliable.
{¶65} Because of this, and because the trial court found both parents provided a
loving and supportive environment for their children, it was reasonable for the trial court to
conclude that the allocation of parental rights and responsibilities should not be changed,
and that instead certain terms of the Shared Parenting Plan should be changed to
address the parents' concerns, especially since this was the first time that the trial court
was asked to review the original 2005 decree, and a less disruptive change seems
reasonable.
{¶66} The trial court's decision was well-reasoned, thorough, and based upon the
evidence. Thus the trial court did not commit an abuse of discretion by concluding that
the circumstances presented by the parties did not constitute a change in circumstances
for the purposes of R.C. 3109.04(E)(1)(a). Because the trial court did not commit
reversible error regarding this threshold issue, the trial court was not obligated to consider
whether a particular reallocation of parental rights and responsibilities was in the best
interest of the children. We therefore will not address the second portion of Joseph's
assignment of error regarding the best interest of the children. Accordingly, Joseph's first
assignment of error is meritless.
Shared Parenting Plan
{¶67} In his second assignment of error, Joseph asserts:
{¶68} "The trial court further abused its discretion in determining that the shared
parenting plan remains in the best interest of the children and that plaintiff/mother should
receive equal parenting time despite a clear showing to the contrary under statutory
factors."
{¶69} Joseph asserts that the trial court abused its discretion in finding that its
modification of the Shared Parenting Plan was sufficient to protect the best interests of
the children. The trial court exercised its discretion to modify the Shared Parenting Plan
pursuant to R.C. 3109.04(E)(2)(b), which states:
{¶70} "The court may modify the terms of the plan for shared parenting approved
by the court and incorporated by it into the shared parenting decree upon its own motion
 - 20 -

at any time if the court determines that the modifications are in the best interest of the
children or upon the request of one or both of the parents under the decree. Modifications
under this division may be made at any time. The court shall not make any modification to
the plan under this division, unless the modification is in the best interest of the children."
{¶71} Although R.C. 3109.04(E)(1)(a) requires a change in circumstances in order
to modify a prior allocation of parental rights and responsibilities, R.C. 3109.04(E)(2)(b)
only requires a consideration of the best interest of the children and does not require a
finding of a change in circumstances in order to modify the terms of a shared parenting
plan. The terms of a shared parenting plan govern the way in which the parents'
respective rights and responsibilities are carried out. Fisher, supra, at ¶30. The terms
include things such as "the child's living arrangements, medical care, and school
placement." Id. See, also, R.C. 3109.04(G). A modification that changes the allocation
of parental rights and responsibilities cannot be executed through the terms of a shared
parenting agreement, and requires a change in circumstances pursuant to R.C.
3109.04(E)(1)(a). Fisher at ¶22-25.
{¶72} The trial court's findings of fact addressed the many conflicts between the
parents, which primarily arose during the exchanges of the children, decisions on medical
and school issues. Upon a thorough consideration of the best interest of the children, the
trial court modified some terms of the parties' Shared Parenting Plan by changing the
exchange date from Sunday to Wednesday, eliminating the mid-week parenting time, and
designating Joseph as the residential parent for school and health decisions. The trial
court's modification reduced the chance of either parent being untimely for the exchange,
reduced the interaction between the parents in the presence of the children, and
eliminated power struggles over medical and school decisions.
{¶73} Joseph asserts that the amended Shared Parenting Plan fashioned by the
trial court constituted an abuse of discretion, but fails to articulate what modification by
the trial court would not have been an abuse of discretion. However, in the final
conclusion of Joseph's brief, Joseph requests that this court sustain his second
assignment of error and cause the Shared Parenting Plan to be modified so that Angela
receives the children every other weekend, with a mid-week visit, in accordance with a
 - 21 -

standard parenting time order. Joseph has attached an example parenting time
schedule, pursuant to R.C. 3109.051, that he believes demonstrates the more
appropriate parenting schedule in this case.
{¶74} A standard parenting time order in accordance with R.C. 3109.051 is only
applicable in the event that there is no shared parenting agreement, and one parent is
named the residential parent. R.C. 3109.051(A). The result that Joseph promotes in this
assignment of error is identical to that which he promotes in the event of a reallocation of
parental rights and responsibilities: full time residence with Joseph and visitation for
Angela. Joseph is therefore repeating his argument for a reallocation of parental rights
and responsibilities from his first assignment of error. As with the first assignment of
error, Joseph's argument here is meritless.
Child Support
{¶75} In his third assignment of error, Joseph asserts:
{¶76} "The trial court erred in its calculation of child support."
{¶77} Joseph contends that the trial court incorrectly completed the Ohio Child
Support Worksheet that accompanied the trial court's final order. Specifically, Joseph
argues that the trial court erroneously indicated in the worksheet heading that only Angela
was designated as the residential parent and legal guardian, failed to subtract "Deviation
shared" for Joseph's 50% shared parenting time, and failed to consider Angela's
increased income based on her change in employment. Joseph thus does not object to
the trial court's decision to modify child support, and only objects to the trial court's
calculation of the resulting modified child support amount.
{¶78} Joseph has waived this issue for purposes of appeal. It is axiomatic that a
reviewing court will not consider any error that a party failed to bring to the trial court's
attention at a time when that alleged error could have been addressed by the trial court.
See, e.g., Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912
N.E.2d 595, at ¶34.
{¶79} The trial court modified child support in its October 1, 2008 order sua sponte
in accordance with the March 21, 2008 order that child support was to be recalculated
 - 22 -

after the termination of spousal support. Thus, the change in child support was not made
pursuant to any motion by Joseph. Moreover, Joseph did not submit any request or
argument for a particular child support amount, nor did he request a downward deviation
at any point in the June 2008 proceedings. During the June 2008 proceedings, the trial
court did mention that it planned to recalculate child support due to the termination of
spousal support, and stated that it would use the income figures from the March 2008
calculations. Joseph assented to the trial court's statements, and no further discussion
was had. As such, Joseph has waived this issue for appeal. Accordingly, Joseph's third
assignment of error is meritless.
Conclusion
{¶80} The trial court did not abuse its discretion in finding that there was not a
substantive change of circumstances warranting a reallocation of parental rights and
responsibilities, nor was its modification of the Shared Parenting Plan an abuse of
discretion. Joseph's argument regarding the calculation of child support argument is
waived. Accordingly, the judgment of the trial court is hereby affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs.