Respectfully, I must dissent from the majority decision which largely affirms the decision rendered by the domestic relations court in this instance.
The record presented to our court reflects that Steven and Marcy Shore entered into a dissolution of their marriage on May 18, 1993, and at that time agreed to a Shared Parenting Plan for their son, Nathan, born on December 1, 1990.
Subsequent to the dissolution, Marcy Shore met and married Yankel Davidovics, a member of the Orthodox Jewish faith who resided in Brooklyn, New York, and relocated there with her new husband.
On August 8, 1995, the father obtained a temporary restraining order to prevent the mother from moving Nathan to New York. On May 2, 1996, the mother filed her notice of intent to relocate Nathan to New York.
A domestic relations court magistrate heard the matter on seven days stretching over a thirty-three day period May 22, 28, 29, and June 6, 10, 11, and 25, 1996 but never announced a decision until June 12, 1997, almost a full year later.
Thereafter, on January 20, 1998, after obtaining several extensions to prepare a transcript of the proceedings before the magistrate, the father filed objections to the magistrate's recommendation. The trial court, however, did not rule on those objections until October 26, 1998 more than ten months later. While the rules *Page 392 of civil procedure require counsel to file objections to a magistrate's report within fourteen days of a decision, a court should make every effort to rule promptly on them, especially when the important issues involve a school age child whose very direction in life hangs on its decision.
The trial court order here basically affirmed the decision of the magistrate, allowing Nathan to remain in Beachwood with his father, but at a school nominated by his mother and chosen by his father; she also had visitation on all holidays and vacations.
Steven Shore, the father, filed a notice of appeal in our court raising five assignments of error:
I.
THE TRIAL COURT ERRED BY ORDERING CHANGES TO THE SCHOOL SELECTION PROVISION OF THE PRIOR ORDER.
II.
THE TRIAL COURT ERRED BY IMPOSING A COMPANIONSHIP SCHEDULE THAT DEPRIVES THE FATHER OF THE OPPORTUNITY TO CELEBRATE ANY RELIGIOUS OR SECULAR HOLIDAYS WITH HIS CHILD.
III.
THE TRIAL COURT'S DECISION VIOLATES THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS BY IMPERMISSIBLY INFRINGING ON THE FATHER'S CONSTITUTIONAL RIGHTS.
IV.
THE TRIAL COURT ERRED BY DEVIATING FROM THE CHILD SUPPORT GUIDELINES AND BY FAILING TO AWARD CHILD SUPPORT TO THE FATHER.
V.
THE TRIAL COURT ERRED WHEN IT MODIFIED THE SHARED PARENTING PLAN AFTER THE EVIDENCE DEMONSTRATED THAT THE PARTIES WERE UNABLE TO COOPERATE REGARDING THEIR CHILD.
In my view, the decision of the domestic relations court is flawed both procedurally and substantively.
From a procedural standpoint, the Code of Judicial Conduct specifies that judges should dispose of judicial matters promptly. And, Cannon III provides [a] judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before all judges * * *.
Here, no plausible explanation exists to justify the delay in reaching a decision on these matters, nor for the pattern of scheduling trial days in other than a consecutive fashion. We have previously specifically disapproved of this non-sequential trial pattern, and find it should be discouraged as not in the interests of instilling public confidence in the judiciary. Trial judges have administrative obligations to supervise magistrates regarding this practice and to personally refrain from continuing this practice in all but the narrowest of cases. *Page 393
Substantively, in my review, I believe the trial court abused its discretion in three respects. First, it implemented its own version of a schooling and religious education plan for Nathan, which ran contrary to the opinion from every expert who testified, including the court's own expert.
The court here ordered in part:
Prior to the commencement of the school year, Mother shall provide Father with the choice of three (3) schools she would like Nathan to attend. Father shall have the option of selecting one of the three schools chosen by the Mother. If Father chooses not to exercise this option, then Mother shall make the selection. The tuition and related educational expenses shall be paid by the Mother.
* * *
Decisions regarding Nathan's specific religious participation shall be made by Father while Nathan is in his possession and by Mother while Nathan is in her possession.
Each party shall strive to engender in Nathan the utmost respect for the other party's religious beliefs and practices.
This is impracticable, and I believe it constitutes an abuse of discretion.
Secondly, in my view, the court abused its discretion when it awarded visitation with the mother on all school holidays, religious and secular holidays, school vacations, and almost the entire summer. I would expect a court of equity to find a way for a father to spend some leisure time with his son when the boy has no school obligations for fishing, golf, or even a baseball game. In my view, the court's poor effort at dividing these important times also constitutes an abuse of discretion.
Thirdly, though not stated, the trial court has all but abrogated shared parenting and has made the father a custodial parent.
Further, R.C. 3109.04(K)(2) states:
A parent who primarily is allocated the parental rights and responsibilities for the care of a child and who is designated as the residential parent and legal custodian of the child under an order * * * has custody of the child and care, custody, and control of the child under the order, and is the residential parent, the residential parent and legal custodian, or the custodial parent of the child under the order.
Here, I believe the mother voluntarily chose to move to Brooklyn, New York, and now seeks to have the court release her from the bonds of her marital dissolution in an effort to renegotiate that agreement and move Nathan to Brooklyn. A cursory review of the court decree reveals it is no longer a shared parenting arrangement, because Nathan now will reside with his father for almost ten months of the year this makes the father a custodial parent. See *Page 394 R.C. 3109.04(K)(2). However, I do not believe the trial court fairly balanced the equities of the parties, considered the best interest of Nathan, nor acted in accordance with the law.
For these reasons, I would order the parties to follow the original decree of dissolution regarding the educational needs of Nathan; order all holidays and school vacations divided and shared between the parents, and based on present circumstances would order the mother to pay child support to the father.
Accordingly, I dissent.