[Cite as Barton v. Barton, 2015-Ohio-5194.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LORI BARTON : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 15-CA-13
:
WESLEY BARTON :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas, Domestic Relations
Division, Case No. 12 DR 417
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 9, 2015
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
JAMES R. KINGSLEY DAVID L. ROWLAND
157 West Main Street 10705 Snyder Church Rd.
Circleville, OH 43113 Baltimore, OH 43105
Fairfield County, Case No. 15-CA-13 2
Delaney, J.
{¶1} Plaintiff-Appellant Lori Barton appeals the February 23, 2015 judgment
entries of the Fairfield County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Lori Barton (“Mother”) and Defendant-Appellee Wesley
Barton (“Father”) were married on June 18, 2005. One child was born as issue of the
marriage: L.B., born on March 4, 2008.
{¶3} In March 2012, Father moved out of the marital home. Mother remains in
the marital home. Mother filed a complaint for legal separation with children on August
21, 2012. Mother requested the trial court name her as residential parent and legal
custodian of L.B. On October 16, 2012, Father filed an answer and counterclaim for
divorce. Mother and Father filed motions for temporary orders.
{¶4} On October 18, 2012, the magistrate issued temporary orders naming
Father as the residential parent and legal custodian of L.B. Mother was granted
parenting time in accordance with Fairfield County Local Rule 17.
{¶5} Mother filed a motion to modify temporary orders on November 20, 2012.
She requested the trial court name her as residential parent and legal custodian. A
hearing was held before the magistrate on January 28, 2013. On January 29, 2013, the
trial court denied Mother’s motion to modify the temporary orders.
{¶6} Mother filed an amended complaint for divorce on May 13, 2013. Mother
also filed a proposed shared parenting plan that designated her as the school
placement parent, child support obligee, would cause Father to notify Mother prior to
scheduling any medical appointments, and called for parenting time to be by agreement
Fairfield County, Case No. 15-CA-13 3
or in the alternative for her to have the majority of parenting time. Father did not file a
proposed shared parenting plan.
{¶7} A trial on Mother’s amended complaint and Father’s counterclaim for
divorce was held before the magistrate on September 20, 2013. The focus of this
appeal is the trial court’s award of custody to Father. At trial, the following evidence was
adduced as to the custody of L.B.
{¶8} Since September 2009, Father has been employed as the chief of police
of Lithopolis, Ohio. His hours of employment are from 7:00 a.m. to 3:00 p.m., Monday
through Friday. Mother is employed with UPS. Mother works Monday through Friday,
from 2:00 a.m. to 8:00 a.m.
{¶9} When L.B. was approximately two years old, L.B. was enrolled in a
church-operated preschool for a few hours, one day a week. Father felt L.B. was not
receiving the appropriate level of socialization and removed her from the church
preschool. In 2012, L.B. was approximately three years old when Father enrolled L.B.
into a private childcare facility named Sunnyside Childcare. Father was responsible for
the tuition. Sunnyside provides childcare and educational programs for infants, toddlers,
and preschool-aged children. L.B. attended preschool at Sunnyside from 7:00 a.m. until
12:15 p.m. on Mondays, Tuesdays, Wednesdays, and Fridays.
{¶10} Father testified he was concerned with L.B.’s mental development. She
appeared to him to be delayed in her speech development and social skills when
compared to her peers. He was very concerned L.B. had autism. Father had L.B. tested
for hearing problems, allergies, and heart issues to rule out medical causes for her
developmental delays. L.B. suffered from five ear infections within a six-month period.
Fairfield County, Case No. 15-CA-13 4
Her family physician did not recommend getting tubes placed in her ears, but Father
took L.B. to a pediatric ENT for a second opinion. Mother acknowledged that L.B. had
speech delays, but felt L.B. would outgrow them because she herself had outgrown
childhood speech delays. She testified she felt Father was taking L.B. to the doctor too
often.
{¶11} After approximately one year with Sunnyside, Mother enrolled L.B. into the
afternoon preschool program at Walnut Elementary in the Teays Valley Local School
District, Fairfield County, Ohio. Walnut Elementary was close to Mother’s home. L.B.
was evaluated between August 2012 and October 2012 by the Teays Valley Local
School District. In a report dated October 5, 2012, it was determined through a multi-
disciplinary evaluation that L.B. was developmentally delayed and had deficits in her
fine motor skills, receptive, expressive, social communication, and social skills. The
school recommended L.B. be enrolled in a special needs classroom to interact with
adults and peers and to have speech/language therapy and occupational therapy. L.B.
was given an individualized education program (“IEP”) to meet her educational needs.
Mother and Father both participated in the evaluation.
{¶12} When Father left the marital home, Father moved into a two-bedroom
apartment in Groveport, Franklin County, Ohio. On October 18, 2012, the magistrate
issued temporary orders naming Father as the residential parent and legal custodian of
L.B. Father was informed by the Teays Valley Local School District that because Father
was named the residential parent, L.B. could no longer attend Walnut Elementary
because Father resided outside of the school district. Father enrolled L.B. in the
preschool program at Sedalia Elementary in the Groveport Madison Local School
Fairfield County, Case No. 15-CA-13 5
District, Franklin County, Ohio. Sedalia Elementary was not as close to Mother’s home.
L.B. receives speech and occupational therapy at Sedalia Elementary based on her
IEP. Mother testified L.B. expressed that she missed her friends at Walnut Elementary.
Mother also testified Teays Valley Local School District was a higher-rated school
district that Groveport Madison Local School District. Father felt Sedalia Elementary did
a better job with L.B.’s IEP than Walnut Elementary.
{¶13} Father requested L.B. be evaluated by Nationwide Children’s Hospital. On
September 9, 2013, L.B. received a diagnostic assessment that noted L.B. was
developmentally delayed and had language and fine motor delays and self-stimulating
behaviors. It was recommended that L.B. be assessed by a developmental pediatrician,
psychologist, and speech pathologist. After the September 20, 2013 trial, Father
submitted to the trial court the assessment by the Child Development Center of
Nationwide Children’s Hospital. The report found L.B.’s symptoms were consistent with
Mixed Expressive/Receptive Disorder and motor coordination deficits, and a lack of
appropriate social skills. The results of the testing were not consistent with Autism
Spectrum Disorder.
{¶14} At the time of the hearing and while L.B. was enrolled in Sunnyside
Childcare and Sedalia Elementary, the parents’ schedule was as follows. Father
brought L.B. to Sunnyside Childcare at 7:00 a.m. Mother picked up L.B. from Sunnyside
around 12:15 p.m. and drove her to Sedalia Elementary for afternoon preschool. Father
picked up L.B. from Sedalia Elementary. Father had custody of L.B. from Sunday at
6:00 p.m. to Wednesday at 3:30 p.m. On Wednesdays, Mother had custody of L.B. from
Fairfield County, Case No. 15-CA-13 6
3:30 p.m. to Thursday at 3:30 p.m. Mother had custody of L.B. from Friday at 11:30 a.m.
to Sunday.
{¶15} The magistrate had a hearing on June 11, 2014 based on Mother’s motion
filed January 29, 2014.
{¶16} On June 24, 2014, the magistrate granted the parties’ divorce. The
magistrate named Father as the residential parent and legal custodian of L.B. After
reviewing the factors under R.C. 3109.04, the magistrate determined the shared
parenting plan submitted by Mother was not in the best interests of L.B. The magistrate
found Father was more motivated than Mother to work with the medical and educational
professionals to help L.B. with her developmental delays.
{¶17} Mother filed objections to the magistrate’s decision on July 2, 2014 and
September 24, 2014.
{¶18} On February 23, 2015, the trial court overruled Mother’s objections. The
trial court issued the Final Decree of Divorce on February 23, 2015. It is from this
judgment Mother now appeals.
ASSIGNMENTS OF ERROR
{¶19} Mother raises seven Assignments of Error:
{¶20} “I. DID THE TRIAL JUDGE COMMIT PREJUDICIAL ERROR BY FAILING
TO MAKE A PROPER, DE NOVO, INDEPENDENT REVIEW OF THE MAGISTRATE’S
DECISION?
{¶21} “II. DID THE DELAY OF NINE MONTHS BY THE MAGISTRATE TO
ISSUE HER DECISION AND THE DELAY OF FOUR MONTHS BY THE JUDGE TO
RULE ON OBJECTIONS (17 MONTHS TOTAL ALLOWING FOR TRANSCRIPT AND
Fairfield County, Case No. 15-CA-13 7
BRIEFING – 30 MONTHS FROM FILING TO FAO) DENY PLAINTIFF HER
CONSTITUTIONAL RIGHT TO DUE PROCESS TO REDRESS AND FOR INJURY
UNDER THE OHIO CONSTITUTION?
{¶22} “III. WAS IT PREJUDICIAL ERROR NOT TO RECUSE THE
MAGISTRATE FOR BIAS?
{¶23} “IV. WAS IT PREJUDICIAL ERROR TO CONSIDER POST-FILING
EVIDENCE TO DECIDE CUSTODY?
{¶24} “V. WAS IT PREJUDICIAL ERROR TO AWARD CUSTODY OF [L.B.],
D.O.B. 3/4/08 TO FATHER AND TO REFUSE TO ACCEPT MOTHER’S SHARED
PARENTING PLAN?
{¶25} “VI. WAS IT PREJUDICIAL ERROR TO ORDER STANDARD
VISITATION INSTEAD OF SPECIFIC VISITATION IN ACCORDANCE WITH
UNDISPUTED PAST PRACTICE?
{¶26} “VII. WAS IT PREJUDICIAL ERROR TO PLACE THE CHILD IN
DAYCARE WHEN MOTHER WAS AVAILABLE AND CLAIMED THE RIGHT TO FIRST
SIT?”
ANALYSIS
I. Independent Review of the Trial Court
{¶27} Mother argues in her first Assignment of Error that the trial failed to make
an independent, do novo review of the magistrate’s decision. We disagree.
{¶28} Civ. R. 53(D)(4)(d) provides that in ruling on objections to a magistrate's
decision, the court shall undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and
Fairfield County, Case No. 15-CA-13 8
appropriately applied the law. Williams v. Tumblin, 5th Dist. Coshocton No.
2014CA0013, 2014-Ohio-4365, ¶ 35. “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.
Faulks v. Flynn, 4th Dist. Scioto App. No. 13CA3568, 2014–Ohio–1610, ¶ 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.
{¶29} The trial court overruled Mother’s objections to the magistrate’s decision
on February 23, 2015. In its judgment entry, the trial court states that pursuant to Civ.R.
53(D)(4)(d), the court shall undertake an independent review of the objected matters to
ascertain whether the magistrate has properly determine the factual issues and
appropriately applied the law. The trial court noted the transcripts of the hearings held
before the magistrate were filed with the court for the purposes of the non-oral hearing
on Mother’s objections to the magistrate’s decision.
{¶30} Mother’s argument that the trial court failed to exercise independent
judgment rests on the fact that the court failed to specifically address all of her
arguments in support of her objections to the magistrate’s decision. The trial court's
failure to agree with Mother or to specifically discuss every factor weighing into the
decision does not rebut the presumption that the trial court conducted an independent
Fairfield County, Case No. 15-CA-13 9
analysis in accordance with Civ. R. 53(D)(4)(d). Williams v. Tumblin, 2014-Ohio-4365, ¶
37.
{¶31} Mother’s first Assignment of Error is overruled.
II. Date of Trial Court’s Judgment
{¶32} Mother argues in her second Assignment of Error that the timing of the
trial court’s judgment entry denied Mother her constitutional right of due process.
{¶33} Mother originally filed the action on August 21, 2012. L.B. was four years
old. The matter went to trial on September 20, 2013. The magistrate issued her decision
on June 24, 2014. The trial court overruled Mother’s objections to the magistrate’s
decision and issued the final decree of divorce on February 23, 2015. At the time of this
appeal, L.B. is approximately seven years old and is attending full-day elementary
school.
{¶34} Mother argues the untimeliness of the trial court violated her constitutional
right of due process. She argues because of the delay in rendering its judgment, the
trial court’s decision is no longer applicable to L.B. because of the child’s growth and
maturation.
{¶35} This Court has previously addressed the challenge of rendering an
opinion in a custody case based on the passage of time between the inception of a case
and the final order. See Mitchell v. Manders, 5th Dist. Morrow No. 14CA0011, 2015-
Ohio-1529, ¶ 71 (at the time of the trial court’s full hearing, the child was in first grade
and by the appellate decision, the child was 11 years old and in the fourth grade). The
Court is tasked with reviewing the facts in evidence and determining whether there was
competent and credible evidence to support the trial court’s decision on custody.
Fairfield County, Case No. 15-CA-13 10
{¶36} In this case, the trial court determined it was in the best interests of the
child that Father be named the residential parent and legal custodian. The trial court’s
decision was based primarily on L.B.’s documented developmental delays and the
differences between the parents’ ability and desire to meet the needs of L.B.’s
developmental delays. While time has passed between the full hearing, the trial court’s
final order, and this appeal, the basis of the trial court’s determination of custody is still
ripe for our review.
{¶37} Mother’s second Assignment of Error is overruled.
III. Magistrate Bias
{¶38} Mother contends in her third Assignment of Error that the magistrate
assigned to hear the matter was biased; therefore, the magistrate should have recused
herself from the case.
{¶39} At the January 28, 2013 hearing on Mother’s motion to modify temporary
orders, the magistrate stated her child was special needs and she understood the IEP
process. It was Mother’s argument at the trial court level that Father was unnecessarily
taking L.B. to numerous doctors to search for a diagnosis to explain L.B.’s
developmental delays. Mother argues that because of the magistrate’s personal history,
the magistrate was biased towards Father.
{¶40} Mother does not dispute that she did not raise this issue before the trial
court through a motion to disqualify. She states the issue was only discovered upon a
review of the January 28, 2013 transcript in preparation of her objections to the
magistrate’s decision. She raised the argument in support of her objection to the
magistrate’s decision as to custody.
Fairfield County, Case No. 15-CA-13 11
{¶41} The proper method to challenge a magistrate's impartiality is to file a
motion for disqualification with the trial court. Lingenfelter v. Lingenfelter, 9th Dist.
Wayne No. 14AP0005, 2015-Ohio-4002, -- N.E.3d --, ¶ 10. Civ.R. 53(D)(6) specifically
provides that, “[d]isqualification of a magistrate for bias or other cause is within the
discretion of the court and may be sought by motion filed with the court.”
{¶42} There was no motion before the trial court to disqualify the magistrate for
bias. When Mother discovered the alleged bias of the magistrate, Mother did not file a
motion to disqualify or raise the issue as a separate objection to the magistrate’s
decision. As such, we find the matter to be waived.
{¶43} Mother’s third Assignment of Error is overruled.
IV. Post-Trial Evidence
{¶44} Mother argues in her fourth Assignment of Error that it was prejudicial
error for the trial court to consider evidence filed after the final hearing in order to
determine custody.
{¶45} On January 29, 2014, Mother filed a post-hearing motion. In response to
Mother’s post-hearing motion, Father submitted the results of the Interdisciplinary
Assessment Results conducted by Nationwide Children’s Hospital along with other
evaluations conducted to determine L.B.’s developmental status. Mother argues it was
prejudicial error for the trial court to consider such evidence submitted after the full
hearing.
{¶46} A review of the transcript of the June 11, 2014 hearing before the
magistrate shows that Mother took the opposite position and requested the magistrate
take judicial notice of the report from Nationwide Children’s Hospital. (June 11, 2014 Tr.,
Fairfield County, Case No. 15-CA-13 12
p. 73). Counsel stated, “we’re going to ask that you take – either mark as an exhibit or
take judicial notice of the Children’s report that came in late * * * and consider that as
part of the case.” Id. The magistrate agreed that it was part of the record. Id.
{¶47} Accordingly, we overrule Mother’s fourth Assignment of Error.
V. Best Interests of the Child
{¶48} Mother argues the trial court abused its discretion when it rejected
Mother’s proposed shared parenting plan and awarded custody of L.B. to Father. We
disagree.
{¶49} In any divorce proceeding, the court shall “allocate the parental rights and
responsibilities for the care of the minor children of the marriage.” R.C. 3109.04(A). In
this case, Mother filed a proposed shared parenting plan pursuant to R.C. 3109.04(G). If
at least one parent files a pleading or motion in accordance with R.C. 3109.04(G) and a
plan for shared parenting, the trial court must determine whether the plan for shared
parenting is in the best interest of the child. R.C. 3109.04. The approval of a shared
parenting plan is discretionary with the court. R.C. 3109.04. If the court does not
determine that any filed shared parenting plan is in the best interest of the child, the
court shall not approve any plan. R.C. 3109.04.
{¶50} R.C. 3109.04(F)(1) sets forth the following factors for the court to consider
when determining the best interests of a child in allocating parental rights:
(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
Fairfield County, Case No. 15-CA-13 13
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 companionship 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 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; * * *;
(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.
{¶51} Custody issues are some of the most difficult decisions a trial judge must
make. When reviewing a ruling pertaining to the allocation of parental rights, the trial
court is to be afforded great deference. Tipton v. Tipton, 5th Dist. Fairfield No. 13-CA-
Fairfield County, Case No. 15-CA-13 14
19, 2013-Ohio-4901, ¶ 19 citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846
(1988). Thus, we will not reverse a child custody decision that is supported by a
substantial amount of competent, credible evidence absent an abuse of discretion.
Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.
{¶52} In the magistrate’s decision, the magistrate reviewed in detail each factor
under R.C. 3109.04(F) to determine the best interest of the child. L.B. was too young at
the time of the full hearing to interview. A guardian ad litem was not appointed in this
case. The evidence in this case supports the trial court’s conclusion that Mother loves
L.B. and wants the best for her, but Father was more motivated to address L.B.’s
medical and educational needs to help L.B. with her documented developmental delays.
{¶53} We find the trial court did not abuse its discretion in finding the proposed
shared parenting plan submitted by Mother was not in the best interest of L.B.
{¶54} Mother’s fifth Assignment of Error is overruled.
VI. Local Rule 17 Parenting Time with Mother
{¶55} The trial court ordered that Mother would have parenting time of not less
than Fairfield County Local Rule 17, as well as such other times as the parties agree.
Once L.B. started kindergarten, the Wednesday overnight would be contingent upon
Mother transporting L.B. to school on Thursday. In the summer, Mother would have the
child while Father was working, except for those times L.B. was in Sunnyside Childcare
or a similar program, or when Father worked in the evening. Mother was responsible for
transportation from Sunnyside to her home.
{¶56} Mother argues the trial court should have ordered parenting time based on
past practices of the parties, which was in evidence, rather than on Local Rule 17.
Fairfield County, Case No. 15-CA-13 15
{¶57} A review of the trial court’s final decree of divorce shows that it provided
for adjustment of the parenting time by agreement of the parties. The testimony of
Mother and Father shows that they adjusted parenting time based on agreement.
Further, the testimony of the parties as to parenting time was substantially similar to the
schedule outlined in the final decree.
{¶58} Mother’s sixth Assignment of Error is overruled.
VII. Daycare
{¶59} Mother argues in her seventh Assignment of Error that it was error to allow
Father to place L.B. in Sunnyside Childcare when Mother was available to watch L.B.
{¶60} The parties have noted that at the time of this appeal, L.B. is currently
attending full-day kindergarten. Mother argues L.B. should not be enrolled in Sunnyside
Childcare during the summer.
{¶61} Mother cites to In re Schwendeman, 4th Dist. Washington Nos. 05CA18,
05CA25, 2006-Ohio-636, in support of her contention that daycare is an unreasonable
situation. The court stated, “[w]hile it may be desirable for a child to spend that time with
family members rather than in daycare, we cannot find that the trial court abused its
discretion in declining to find that Father's need to utilize daycare services rendered him
unsuitable to parent Baylee. Indeed, if Father's employment and resulting need for
daycare services rendered him unsuitable, virtually every working parent would be
unsuitable to care for their own children when compared with an unemployed or retired
grandparent seeking custody. As the Davis and Troxel courts noted, the state cannot
infringe on a parent's fundamental right to make child rearing decisions simply because
Fairfield County, Case No. 15-CA-13 16
a ‘better’ decision could be made. Davis at ¶ 15, citing Troxel, 570 U.S. at 72–73.” Id. at
¶ 59.
{¶62} There is no dispute that Nationwide Children’s Hospital diagnosed L.B.
with Mixed Expressive/Receptive Disorder, motor coordination deficits, and a lack of
appropriate social skills. It was recommended that L.B. be given opportunities to
socialize with her peers and receive speech and occupational therapy. Father enrolled
L.B. in Sunnyside Childcare because it provided socialization for L.B. in a preschool
setting. Based on L.B.’s diagnosis, we find no abuse of discretion for the trial court to
order that in the summer, Mother would have the child while Father was working, except
for those times L.B. was in Sunnyside Childcare or a similar program, or when Father
worked in the evening.
{¶63} Mother’s seventh Assignment of Error is overruled.
Fairfield County, Case No. 15-CA-13 17
CONCLUSION
{¶64} Mother’s seven Assignments of Error are overruled.
{¶65} The judgment of the Fairfield County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Delaney, J.,
Farmer, P.J. and
Baldwin, J., concur.
Barton v. Barton
Combined Opinion