Crawford v. Fisher

[Cite as Crawford v. Fisher, 2015-Ohio-114.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Eric Crawford, :

Plaintiff-Appellant, :
No. 14AP-366
v. : (C.P.C. No. 11DR-4933)

Yandora Fisher, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on January 15, 2015

Douglas W. Bulson, Jr., for appellant.

APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations

DORRIAN, J.
{¶ 1} Plaintiff-appellant, Eric Crawford ("appellant"), appeals from a judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, granting the
parties a divorce and designating defendant-appellee, Yandora Fisher ("appellee"), as the
residential parent and legal custodian of the parties' minor child. Because we conclude
that the trial court did not abuse its discretion in designating appellee as the residential
parent and legal custodian and that the decision was not against the manifest weight of
the evidence, we affirm.
{¶ 2} The parties were married in Franklin County, Ohio, in December 2005 and
had one child, N.C., born in March 2006. In April 2008, appellee and N.C. moved to
Arizona with John Knox ("Knox"). While living in Arizona, appellee and Knox had two
children, A.K. and J.K. In August 2011, appellee and N.C. returned to live in Franklin
County, Ohio.
No. 14AP-366 2

{¶ 3} Appellant filed a complaint for divorce in December 2011, claiming mutual
incompatibility and requesting that a legal custodian for N.C. be determined. Appellee
filed an answer and counterclaim for divorce in February 2012. The parties entered into a
divorce settlement memorandum that resolved all issues related to the divorce except for
issues related to N.C. The trial court appointed a guardian ad litem for N.C. and
conducted hearings in July 2013 and January 2014 to take evidence on the issues related
to N.C. Appellant filed an amended complaint in February 2014, adding Knox as a
defendant and requesting that the trial court determine the nonexistence of a parent-child
relationship between appellant and J.K. or A.K. In March 2014, the trial court conducted
a final hearing with appellant, appellee, and Knox present, limited to the issue of Knox's
parental relationship with J.K. and A.K. Following the hearing, the trial court issued a
judgment granting the parties a divorce, establishing the nonexistence of a parent-child
relationship between appellant and J.K. or A.K., establishing the existence of a parent-
child relationship between Knox and J.K. and A.K., and designating appellee as N.C.'s
residential parent and legal custodian, subject to parenting time and other rights of
appellant as defined in the judgment.
{¶ 4} Appellant appeals from the trial court's judgment, assigning four errors for
this court's review:
I. The Court committed error/abused its discretion in
designating Defendant-Appellee as residential parent and
legal custodian of the minor child.

II. The Court's judgment naming Defendant Fisher as
residential parent and legal custodian of the minor child is
against the manifest weight of the evidence.

III. The Court committed error/abused its discretion in
conducting the final trial prior to the expiration of forty-two
days after service of summons upon defendant John Knox.

IV. The Court committed error/abused its discretion after
Knox was added as a party by not granting plaintiff a
continuance to have the opportunity to gather additional a
[sic] evidence and have further investigation by the Guardian.
No. 14AP-366 3

{¶ 5} Appellant's first and second assignments of error both address the trial
court's decision to designate appellee as N.C.'s residential parent and legal custodian.
Because these assignments of error are related and involve analysis of the same evidence,
we will address them together. In his first assignment of error, appellant asserts that the
trial court abused its discretion by designating appellee as N.C.'s residential parent and
legal custodian. An abuse of discretion occurs when a trial court's decision is
"unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983). "A decision is unreasonable if there is no sound reasoning process that would
support the decision." AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161 (1990). An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard. Porter, Wright,
Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-
3567, ¶ 11. An unconscionable decision may be defined as one that affronts the sense of
justice, decency, or reasonableness. Id.
{¶ 6} In appellant's second assignment of error, he asserts that the trial court's
decision designating appellee as N.C.'s residential parent and legal custodian was against
the manifest weight of the evidence. "The law is clear that, if a civil judgment is supported
by some competent, credible evidence going to all of the essential elements of the case,
there should not be a reversal by a reviewing court as being against the manifest weight of
the evidence." Cameron v. Cameron, 10th Dist. No. 06AP-793, 2007-Ohio-3994, ¶ 16,
citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978). See also Kellogg v.
Kellogg, 10th Dist. No. 04AP-382, 2004-Ohio-7202, ¶ 8 ("[A]n appellate court will not
reverse a trial court's decision allocating parental rights and responsibilities when the
record contains substantial competent, credible evidence to support the court's
decision.").
{¶ 7} The law provides that, in a case such as this where neither parent files a
pleading or motion requesting shared parental rights and responsibilities, "the court, in a
manner consistent with the best interest of the children, shall allocate the parental rights
and responsibilities for the care of the children primarily to one of the parents, designate
that parent as the residential parent and the legal custodian of the child, and divide
between the parents the other rights and responsibilities for care of the children." R.C.
No. 14AP-366 4

3109.04(A)(1). The law sets forth a series of relevant factors the court must consider in
determining the best interest of a child:
In determining the best interest of a child * * * the court shall
consider all relevant factors, including, but not limited to:

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

(b) If the court has interviewed the child in chambers
pursuant to division (B) of this section regarding the child's
wishes and concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns
of the child, as expressed to the court;

(c) The child's interaction and interrelationship with the
child's parents, siblings, and any other person who may
significantly affect the child's best interest;

(d) The child's adjustment to the child's home, school, and
community;

(e) The mental and physical health of all persons involved in
the situation;

(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and compan-
ionship rights;

(g) 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;

(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded
guilty to any criminal offense involving any act that resulted in
a child being an abused child or a neglected child; whether
either parent, in a case in which a child has been adjudicated
an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful
act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously
has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented
offense involving a victim who at the time of the commission
of the offense was a member of the family or household that is
No. 14AP-366 5

the subject of the current proceeding; whether either parent
or any member of the household of either parent previously
has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the
offense was a member of the family or household that is the
subject of the current proceeding and caused physical harm to
the victim in the commission of the offense; and whether
there is reason to believe that either parent has acted in a
manner resulting in a child being an abused child or a
neglected child;

(i) Whether the residential parent or one of the parents
subject to a shared parenting decree has continuously and
willfully denied the other parent's right to parenting time in
accordance with an order of the court;

(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.

R.C. 3109.04(F)(1).
{¶ 8} After reviewing the evidence, the trial court concluded that both appellant
and appellee were good parents who each genuinely cared for their son. The court
analyzed and discussed each of the relevant statutory factors in the decision. The court
concluded that appellee had been the primary caretaker for N.C. since his birth. The court
further noted that, although appellant had not been actively involved in N.C.'s care during
the period immediately after N.C. was born and while appellee and N.C. lived in Arizona,
he had more recently begun assisting in parenting N.C. At the hearings, the parties
presented evidence regarding appellee's home, where N.C. had two siblings, A.K. and J.K.,
and regarding appellant's home, where N.C. had two other siblings, who were the children
of appellant and his fiancée. The court concluded that N.C. had a good relationship with
his two siblings in appellee's home as well as his other two siblings in appellant's home,
but that he was more bonded to the siblings in appellee's home because they were closer
in age and had lived together in Arizona.
{¶ 9} With respect to education and school issues, the court noted appellant's
testimony that appellee was not involved in N.C.'s education but also cited testimony from
N.C.'s teacher indicating that there was not a substantial difference between the
households with respect to N.C.'s schoolwork and preparedness. The court found that
No. 14AP-366 6

both households were appropriate for education purposes. The court concluded that
appellee was more likely to facilitate N.C.'s relationship with appellant than vice versa.
The court also noted the guardian's recommendation that appellant continue to be the
school placement parent because N.C. was happy with his current school but concluded
that N.C. would not be harmed by changing schools based on his grade and age, and that
he would benefit from going to school with his siblings at appellee's home. The court
ultimately concluded that appellant's fiancée and her mother took primary responsibility
for N.C. when he was in appellant's home, thus leading the court to conclude that it was
choosing between a parent and a parent's fiancée, rather than between two parents. Based
on its review of the evidence and consideration of the statutory factors, the court ordered
that appellee be designated as N.C.'s residential parent and legal custodian, subject to
parenting time of appellant as outlined in the divorce decree.
{¶ 10} Appellant argues that the trial court's principal inquiry should have focused
on the period after appellee and N.C. returned to Columbus from Arizona. He points to
evidence demonstrating that appellee had multiple residences during a short period of
time after returning to Columbus; whereas, he and his fiancée owned their home.
Appellant also argues that there were substantial differences in N.C.'s educational
experience between the two homes and that appellee was less involved in N.C.'s
education. Appellant cites to other evidence that he claims demonstrates that he was the
more suitable party to serve as residential parent and legal custodian. Finally, appellant
asserts that the court did not give due deference to the guardian's recommendation that
he should be the school placement parent.
{¶ 11} The decision indicates that the trial court found this to be a close case, with
both parents demonstrating genuine care and concern for N.C., before ultimately deciding
in favor of appellee. With respect to the guardian's recommendation that appellant serve
as the school placement parent, we note that the trial court is not bound to follow the
recommendations of a guardian ad litem. See Lumley v. Lumley, 10th Dist. No. 09AP-
556, 2009-Ohio-6992, ¶ 46; Galloway v. Khan, 10th Dist. No. 06AP-140, 2006-Ohio-
6637, ¶ 70. Therefore, we cannot conclude that the trial court abused its discretion simply
by issuing a decision that differed from the guardian's recommendation. Similarly, we
cannot conclude that the trial court abused its discretion by considering evidence related
No. 14AP-366 7

to N.C.'s entire life, rather than focusing primarily on the period after appellee returned
from Arizona. Further, while appellant can cite to portions of the testimony that weigh in
his favor, the trial court found that other factors weighed in favor of appellee, including
her constant presence throughout N.C.'s life and the close relationships N.C. has with his
siblings in appellee's home. Based on our review of the decision and the evidence
presented below, this was not a decision that lacked a sound reasoning process, nor one
that lacked an adequate determining principle or affronted the sense of justice. Thus, the
trial court's decision does not constitute an abuse of discretion. Likewise, we find that
some competent, credible evidence going to all of the essential elements supported the
decision, and, therefore, the decision was not against the manifest weight of the evidence.
{¶ 12} Accordingly, we overrule appellant's first and second assignments of error.
{¶ 13} In his third assignment of error, appellant asserts that the trial court erred
by conducting the final hearing prior to the expiration of 42 days after service of summons
on Knox. Appellant argues that the trial court violated Civ.R. 75(K) which provides, in
relevant part, that "[n]o action for divorce * * * may be heard and decided until the
expiration of forty-two days after the service of process." In this case, appellant filed his
complaint for divorce on December 27, 2011. After service by certified mail failed, the
clerk of courts served the complaint on appellee by regular mail on February 1, 2012.
Appellee filed her answer and counterclaim for divorce on February 24, 2012, and it was
sent by certified mail to appellant's attorney on February 27, 2012. Knox was added as a
defendant in an amended complaint filed on February 20, 2014, which was served on
Knox by certified mail on February 28, 2014. The trial court conducted the final hearing
on March 14, 2014. Thus, appellant asserts that the trial court violated Civ.R. 75(K) by
conducting the final hearing less than 42 days after service of the complaint on Knox.
{¶ 14} As the Fifth District Court of Appeals has noted, the 42-day rule under
Civ.R. 75(K) is based on Ohio's now-repealed statutory "cooling-off" period between filing
and hearing in divorce cases. Clark v. Clark, 5th Dist. No. 06 CA 8, 2006-Ohio-2902, ¶ 7,
citing former G.C. 11985 and former R.C. 3105.09. The purpose of that cooling-off period
"was to 'discourage precipitous terminations of the bonds of matrimony and encourage
continuation of the family.' " Id., quoting Robinette v. Robinette, 41 Ohio App.3d 25, 26
(5th Dist.1988).
No. 14AP-366 8

{¶ 15} Given that nearly two years passed between the filing of the complaint and
counterclaim for divorce and the final hearing in March 2014, the purpose of the 42-day
waiting period had been fulfilled. Moreover, Knox was added as a defendant for the sole
purpose of determining that there was no parent-child relationship between appellant and
the two children who were products of the relationship between appellee and Knox. There
was no connection between the addition of Knox as a party and the risk of a precipitous
termination of the marriage between appellant and appellee. This court has concluded
that the 42-day rule under Civ.R. 75(K) is procedural, rather than substantive, and does
not deprive the domestic relations court of jurisdiction over a case. Howell v. Howell,
10th Dist. No. 13AP-961, 2014-Ohio-2195, ¶ 12. Under these circumstances, we conclude
that the trial court's failure to strictly comply with Civ.R. 75(K) by waiting 42 days after
the service of summons on Knox was harmless error. See Civ.R. 61 ("[N]o error or defect
in any ruling or order or in anything done or omitted by the court or by any of the parties
is ground for * * * vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties."). See also Nettle v. Nettle, 9th
Dist. No. 25001, 2010-Ohio-4638, ¶ 10 (concluding that the trial court complied with "the
spirit of the rule, if not the letter").
{¶ 16} Accordingly, we overrule appellant's third assignment of error.
{¶ 17} In his fourth assignment of error, appellant argues that the trial court erred
by denying his motion for continuance after Knox was added as a party. Generally, a trial
court has broad discretion whether to grant a continuance, and we will not reverse a
denial of a continuance absent an abuse of discretion. State v. Burke, 73 Ohio St.3d 399,
407 (1995). At the March 14, 2014 final hearing, appellant's counsel moved for a
continuance in order for the guardian to be present and for the reopening of the evidence
to allow further testimony and additional investigation by the guardian. The trial court
denied the motion, noting that the guardian was not a necessary party because he was not
the guardian for J.K. or A.K. The trial court also refused to reopen the evidence with
respect to appellant, appellee, and N.C. The court indicated that the issues arising from
No. 14AP-366 9

the addition of Knox as a defendant only involved his paternity of J.K. and A.K. and that it
would only take additional testimony regarding those two children.
{¶ 18} We cannot conclude that denial of appellant's request for a continuance or
reopening of the evidence was unreasonable, arbitrary, or unconscionable. The trial court
correctly noted that the guardian was only appointed to represent N.C., not J.K. or A.K.
Additionally, because Knox was added as a defendant for the sole purpose of establishing
his paternity of J.K. and A.K., there was no need for the court to take additional evidence
or testimony regarding the custody and care of N.C. Appellee had previously testified that
Knox did not live in Columbus and that she was involved in a relationship with another
individual. Moreover, the trial court had already taken testimony from appellant and
appellee regarding N.C.'s interactions with Knox. Therefore, the trial court did not abuse
its discretion by refusing to continue the hearing or reopen the evidence.
{¶ 19} Accordingly, we overrule appellant's fourth assignment of error.
{¶ 20} For the foregoing reasons, we overrule appellant's four assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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