Carr v. Carr

[Cite as Carr v. Carr, 2016-Ohio-6986.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

DEVIN CARR, :
CASE NOS. CA2015-02-015
Appellant/Cross-Appellee, : CA2015-03-020

: OPINION
- vs - 9/26/2016
:

AMANDA CARR, :

Appellee/Cross-Appellant. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 13DR36836

Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for
appellant/cross-appellee

Timothy A. Tepe, Dinsmore & Shohl LLP, 225 East Fifth Street, Suite 1900, Cincinnati, Ohio
45202, for appellee/cross-appellant

M. POWELL, P.J.

{¶ 1} Plaintiff-appellant/cross-appellee, Devin Carr ("Father"), appeals a decision of

the Warren County Court of Common Pleas, Domestic Relations Division, granting

defendant-appellee/cross-appellant, Amanda Carr ("Mother"), sole authority to make all non-

emergency medical decisions regarding the parties' minor children, and granting the parties

equal parenting time. Mother appeals the trial court's decision designating Father as
 Warren CA2015-02-015
CA2015-03-020

residential parent and legal custodian of the parties' children.

{¶ 2} The parties were married in August 2011. They have two children, a daughter

born in April 2012 ("Daughter") and a son born in September 2013 ("Son"). In December

2013, Father filed for divorce. On December 10, 2014, a hearing on Father's divorce

complaint was held before the trial court. The primary concern at the hearing was the

allocation of parental rights and responsibilities for the children.

{¶ 3} Throughout the marriage, the family resided in a house belonging to Father and

located in Morrow, Ohio. Although Father has a bachelor's degree in Family Studies and

Mother has a bachelor's degree in Science and Family Studies, neither party was employed

during the marriage. Rather, the family was supported by Father's annual annuity of

$55,104.1 The parties separated on Thanksgiving 2013.

{¶ 4} Two arguments precipitated the parties' separation. On the eve of

Thanksgiving 2013, during an argument between the parties over how to properly warm up

frozen breast milk, Father became so angry he punched a hole in a wall. At the time, Son

was in his car seat beneath the hole and small pieces of dry wall fell on him. The next day,

the parties invited their parents to their house for a Thanksgiving dinner. Father and Mother

got into an argument when Mother kept trying to interfere with a private conversation between

Father and his mother ("Paternal Grandmother"). Following an altercation during which

everyone was yelling and the children were crying, Father left the marital home with his

parents. When he later returned, the house was empty: Mother had vacated the marital

residence with the children. Mother returned the children to Father and the marital home 11

days later.

1. Father suffered a brain injury as a child when he was hit by a pick-up truck while waiting for the school bus.
As a result of a settlement, he receives an annual annuity of $55,104 for life. Father has never had a full-time job
and has chosen not to work.
-2-
 Warren CA2015-02-015
CA2015-03-020

{¶ 5} Mother moved to a two-bedroom apartment in East Price Hill, Cincinnati, Ohio,

close to her mother's home. Mother is currently a graduate student at Northern Kentucky

University ("NKU") with evening classes twice a week. She obtained a graduate

assistantship at NKU that pays her $14.10 an hour for 20 hours a week. The assistantship

also provides her with six hours of tuition. Mother testified it will take her two and one-half

years to obtain her master's degree. Ultimately, she intends to move to Northern Kentucky to

be closer to her graduate school, assistantship, and church. Mother does not believe the

move will increase the driving distance to the place where the parties exchange the children

for parenting time.

{¶ 6} Following Father's divorce complaint and throughout the proceedings, the

parties were granted parenting time with the children on a two-day rotating schedule.

Consequently, the parties exchanged the children every two days at noon at a gas station on

Montgomery Road, Cincinnati, near I-275. Both parties testified about problems at the

exchanges. Father complained that Mother refuses to speak to him about the children and

that she never exchanges the children prior to noon, the time Father's parenting time begins,

even if Mother and the children arrive early for the exchange. Paternal Grandmother

corroborated Father's testimony. By contrast, Mother testified she arrives on time for the

exchanges but that Father is angry because he arrives early and ends up waiting.

{¶ 7} Mother testified the exchanges are always "violent." Specifically, Mother claims

that Father is angry, throws things belonging to the children at her, and yells and cusses at

her in front of the children. A bystander who was at the gas station during the November 4,

2014 exchange corroborated Mother's testimony. The bystander testified that five minutes

before noon, Mother was in her car getting the children ready to go when Father approached

the car and started yelling, "You're cutting into my time," to which Mother replied, "it's not

-3-
 Warren CA2015-02-015
CA2015-03-020

even twelve yet." As Mother started getting Daughter out of the car, Father yanked the child

out of Mother's arms and put her in his car. Father then grabbed Son as Mother was trying to

hug and kiss the child, put the child in his car, slammed the children's shoes on the trunk of

Mother's car, and drove off. The bystander also testified that "curse words were exchanged,"

Mother became upset she could not say goodbye to the children, and the exchange left

Mother shaking and distraught. Father admitted snatching Daughter from Mother and

grabbing Son out of Mother's arms during one of the exchanges.

{¶ 8} Father and Mother love their children and are bonded with them. The children

are also bonded with their paternal and maternal relatives. However, the record shows that

both parties have differing childrearing philosophies and practices which often clash. Each

describe the other parent's care of the children as unhealthy and/or abusive and view their

own parenting care as "the right way" to rear the children.

{¶ 9} Testimony at the hearing revealed that in June 2014, Daughter suffered a

second-degree burn on her foot when Father put her on a hot stove so that she could watch

the turn table in a microwave. Mother did not find out about the burn until the following day

when the parties exchanged the children. Mother also testified Father has once left Daughter

unattended in a bathtub, and that Daughter has fallen down the stairs several times under

Father's supervision.

{¶ 10} The parties' main disagreement concerned whether the children suffered from

constipation and the appropriate course of treatment. Mother testified that both children have

an ongoing problem with constipation which she tries to address with diet and a laxative

recommended by their pediatrician. Father does not believe the children are constipated.

He has given the laxative to Daughter but stopped giving it, believing it made Daughter

sluggish. Father admitted he stopped giving the laxative without first consulting the

-4-
 Warren CA2015-02-015
CA2015-03-020

pediatrician, despite an agreed entry ordering the parties to "comply with the

recommendations of the children's doctor [o]n all matters regarding the children's health and

well-being," and a subsequent entry from the trial court ordering the parties to "administer the

laxative as suggested by the pediatrician until the pediatrician recommends otherwise."

Father also testified that Mother is overprotective and tends to call the doctor's office or take

the children there too often for many trivial reasons.

{¶ 11} Mother and Father were evaluated by a psychologist. Based upon the

evaluation, the psychologist expressed the opinion that both parties were appropriate parents

and that there were no concerns about the ability of either to rear the children. Nonetheless,

she recommended that Father be designated residential parent and custodian of the children

because Father is not employed, has no plans in the near future of being employed, and is

therefore "available all the time to the children." The psychologist stated that by contrast,

Mother's availability to the children is curtailed as a result of her graduate studies and

assistantship.

{¶ 12} The parties were divorced by decree on February 5, 2015. Pursuant to the

divorce decree, Father was designated as the residential parent and legal custodian of the

children; the parties were granted equal parenting time on an alternating 2-2-3-day schedule

as follows:

Week I:
Father: Monday at noon until Wednesday noon.
Mother: Wednesday noon am until Friday noon.
Father: Friday at noon am until Monday at noon.

Week II:
Mother: Monday at noon until Wednesday noon.
Father: Wednesday noon until Friday noon.
Mother: Friday at noon until Monday at noon.

Father was ordered to provide the primary health insurance for the children. Mother was

-5-
 Warren CA2015-02-015
CA2015-03-020

designated as the sole parent "responsible for nonemergency medical decisions regarding

the children [and] for scheduling any necessary appointments and providing transportation to

and from said appointments. Mother shall consult with Father concerning these decisions

and notify Father about the medical appointments, which he may attend[.]" Both parents

were ordered to follow the instructions of the children's physicians.

{¶ 13} Father appeals, raising two assignments of error. Mother cross-appeals, raising

one assignment of error.

{¶ 14} Mother's Cross-Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE TRIAL COURT

NAMED FATHER RATHER THAN MOTHER THE RESIDENTIAL PARENT AND

CUSTODIAN OF THE MINOR CHILDREN.

{¶ 16} Father's Assignment of Error No. 1:

{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT WHEN IT PROVIDED APPELLEE WITH THE SOLE DECISION-MAKING

AUTHORITY REGARDING THE CHILDREN'S NON-EMERGENCY MEDICAL TREATMENT.

{¶ 18} Mother argues the trial court abused its discretion in designating Father as the

children's residential parent and legal custodian, given Father's flashes of anger when the

parties exchange the children, his failure to follow basic medical advice regarding the

children, his belief Mother consults the children's pediatrician too often for trivial reasons, and

his failure to ensure Daughter's safety.

{¶ 19} In turn, Father argues the trial court abused its discretion in granting Mother

sole authority to make all nonemergency medical decisions regarding the parties' children.

Specifically, Father first asserts the trial court's decision violates R.C. 3109.04(A) and is

inconsistent with the court's designation of Father as the children's residential parent. Father

-6-
 Warren CA2015-02-015
CA2015-03-020

also asserts that the trial court's decision is an abuse of discretion given (1) the parties'

inability to get along and cooperate, (2) the distance between the parties' homes, (3) the lack

of evidence supporting the trial court's decision, and (4) the fact that Father provides health

insurance for the children, so "there is nothing to stop [Mother] from 'running up' [medical

bills]."

{¶ 20} A trial court's decision allocating parental rights and responsibilities will not be

disturbed on appeal absent an abuse of discretion. Albrecht v. Albrecht, 12th Dist. Butler

Nos. CA2014-12-240 and CA2014-12-245, 2015-Ohio-4916, ¶ 21. "This highly deferential

standard of review rests on the premise that the trial judge is in the best position to determine

the credibility of witnesses because he or she is able to observe their demeanor, gestures,

and attitude." Rarden v. Rarden, 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶

10. This is especially true in cases involving child custody, "since there may be much that is

evident in the parties' demeanor and attitude that does not translate well to the record." Id.

{¶ 21} R.C. 3109.04 governs a trial court's allocation of parental rights and

responsibilities. As applicable here, R.C. 3109.04(A)(1) provides that

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 the care of the children, including, but not
limited to, the responsibility to provide support for the children
and the right of the parent who is not the residential parent to
have continuing contact with the children.

{¶ 22} "Of paramount concern, in any custody decision, is the requirement that the trial

court's judgment be made in the best interest of the child." Cross v. Cross, 12th Dist. Preble

No. CA2008-07-015, 2009-Ohio-1309, ¶ 9. In determining what parenting arrangement is in

the child's best interest, the trial court must consider all relevant factors, including those set

-7-
 Warren CA2015-02-015
CA2015-03-020

forth in R.C. 3109.04(F)(1). Id. Those factors include (1) the wishes of the child's parents

regarding the child's care; (2) the child's interaction and interrelationship with his or her

parents; (3) the child's adjustment to his or her home; (4) the mental and physical health of all

persons involved in the situation; and (5) the parent more likely to honor and facilitate court-

approved parenting time rights or visitation and companionship rights. No one factor is

dispositive. Rather, the trial court has discretion to weigh any relevant factors as it sees fit.

Id.

{¶ 23} We first address Mother's argument that the trial court abused its discretion in

naming Father as the residential parent and custodian of the children. Mother initially notes

that the trial court did not issue a written decision and failed to mention the R.C. 3109.04(F)

factors when deciding the issue of custody in the divorce decree.

{¶ 24} Although R.C. 3109.04(F) requires a trial court to consider the listed factors in

determining what parenting arrangement is in the best interest of the child, "it is not

necessary for the court to set forth its analysis as to each factor in its judgment entry, so long

as the judgment entry is supported by some competent, credible evidence." Coe v.

Schneider, 4th Dist. Washington No. 05CA26, 2006-Ohio-440, ¶ 32; Smarrella v. Smarrella,

7th Dist. Jefferson No. 14 JE 18, 2015-Ohio-837, ¶ 53 (trial court is only required to

determine what is in the best interest of the child and to consider all relevant factors).

{¶ 25} In addition, a judgment entry may be general unless a party makes a specific

request for separate findings of fact and conclusions of law pursuant to Civ.R. 52. In re

Carter, 12th Dist. Butler No. CA99-03-049, 1999 WL 1015709, *4 (Nov. 8, 1999). Neither

Father nor Mother made such a request. Consequently, in the absence of an affirmative

showing to the contrary, we must presume the trial court did in fact consider all relevant

factors, including the factors listed in R.C. 3109.04(F), and affirm the trial court's decision as

-8-
 Warren CA2015-02-015
CA2015-03-020

long as there is some evidence to support the decision. Id. at *4-5; Sandlin v. Sandlin, 12th

Dist. Butler No. CA93-11-219, 1994 WL 519772, *1 (Sept. 26, 1994).

{¶ 26} After thoroughly reviewing the record, we find that the trial court did not abuse

its discretion in designating Father as the residential parent and custodian of the children.

{¶ 27} The record shows that both parties are good parents who love their children

and are bonded with them. Both provide loving and caring homes. However, because the

parties did not seek shared parenting, it was incumbent on the trial court to designate one of

them as residential parent and custodian of the children. At the close of the hearing, the trial

court designated Father as the residential parent and custodian of the children, "subject to

the equal parenting time," on the ground Father was the parent with most stability in his life.

We find no abuse of discretion. Because Father is not employed, he is more available to the

children. By contrast, Mother's graduate studies and assistantship make her less available to

provide care for the children than Father. Father also lives in the home where the children

have always lived.

{¶ 28} We are mindful of Mother's concerns regarding Father's failure to follow basic

medical advice regarding the children and his belief Mother consults the children's

pediatrician often. However, these concerns are alleviated by the trial court's decision

designating Mother as the sole-decision maker for nonemergency medical decisions

regarding the children, and by the court's grant of equal parenting time.

{¶ 29} We are likewise mindful of Mother's concerns regarding Father's anger during

the exchange of the children and his failure to ensure Daughter's safety. With regard to the

latter, the record does not indicate whether the trial court found Mother's testimony credible.

As stated earlier, Mother never requested findings of fact and conclusions of law pursuant to

Civ.R. 52. With regard to Father's anger during exchanges, the trial court addressed the

-9-
 Warren CA2015-02-015
CA2015-03-020

issue at the end of the hearing and (1) told both parties they needed to "grow up" (both

parties were 28 years old at the time of the hearing), (2) required Mother to wear a recording

device for the exchanges, in the event Mother believed there were problems, so that it would

record what Father is saying or whispering, and (3) warned both parties the court would not

tolerate any inappropriate behavior.

{¶ 30} We next address Father's argument the trial court abused its discretion in

granting Mother sole authority to make all non-emergency medical decisions regarding the

parties' children.

{¶ 31} Father first asserts that the trial court's decision violates R.C. 3109.04(A) and is

inconsistent with the court's designation of Father as the children's residential parent

because it makes it "impossible for [him] to fulfill his role as primary caretaker and legal

custodian if his medical decision-making authority is stripped away from him."

{¶ 32} There are two ways under R.C. 3109.04(A) for parents to share parental rights

and responsibilities. When the parents do not request shared parenting as is the case here,

the trial court "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

the care of the children, including, but not limited to," child support and visitation. (Emphasis

added.) R.C. 3109.04(A)(1).

{¶ 33} "Parental rights and responsibilities" is not defined in R.C. 3109.04. However,

the phrase has been construed by the Ohio Supreme Court as synonymous with the phrase

"custody and control." Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 22.

"Custody resides in the party or parties who have the right to ultimate legal and physical

control of a child. Therefore, parental rights and responsibilities reside in the party or parties

- 10 -
 Warren CA2015-02-015
CA2015-03-020

who have the right to the ultimate legal and physical control of a child." (Internal citations

omitted.) Id.

{¶ 34} R.C. 3109.04 likewise does not define "residential parent" and "legal

custodian." However, R.C. 3109.04(A) provides that if one parent is allocated the primary

parental rights and responsibilities for the care of a child, that parent is designated the

residential parent and legal custodian of the child. Id. at ¶ 23. "Therefore, the residential

parent and legal custodian is the person with the primary allocation of parental rights and

responsibilities. When a court designates a residential parent and legal custodian, the court

is allocating parental rights and responsibilities." (Emphasis added.) Id.

{¶ 35} R.C. 3109.04(A)(1) plainly provides that the residential parent and legal

custodian of the child is granted primary allocation of parental rights and responsibilities

regarding the child, and not the sole allocation of these rights and responsibilities. Thus,

while under R.C. 3109.04(A)(1) and "[f]or obvious reasons, the legal custodian and

residential parent of children * * * is normally vested with the power to make non-emergency

medical decisions[,] this is not a requirement of the law. The power may be shared between

the legal custodian and residential parent, and the other parent." Nicola v. Nicola, 11th Dist.

Lake No. 2014-L-062, 2015-Ohio-3540, ¶ 13. R.C. 3109.04(A)(1) contemplates that a trial

court may do exactly what was done here. We therefore find no abuse of discretion.

{¶ 36} We further note that although Mother has sole authority over non-emergency

medical decisions regarding the children, Father can nevertheless fulfill his role as primary

caretaker and legal custodian of the children. Father retains significant authority as

residential parent and legal custodian of the children, including the authority to determine the

children’s school, extracurricular activities, religious affiliation, and associations.

{¶ 37} Father also asserts that the trial court's decision is an abuse of discretion given

- 11 -
 Warren CA2015-02-015
CA2015-03-020

(1) the parties' inability to get along and cooperate, (2) the distance between the parties'

homes, (3) the lack of evidence supporting the trial court's decision, and (4) the fact that

Father provides health insurance for the children, so "there is nothing to stop [Mother] from

'running up' [medical bills]."

{¶ 38} Speculation that the parties will be unable to cooperate to implement the trial

court's order does not render the order an abuse of discretion. The trial court was in the best

position to determine if the parties could effectively implement the order. See Rarden, 2013-

Ohio-4985 at ¶ 10 (the trial judge is in the best position to determine the credibility of

witnesses because he or she is able to observe their demeanor, gestures, and attitude).

{¶ 39} Father asserts that the distance between the parties' homes will make

scheduling and coordination of medical appointments difficult. However, the trial court's

order makes Mother responsible for both scheduling the appointments and transporting the

children to and from the appointments. Thus, any burden resulting from the distance

between the parties' homes is borne exclusively by Mother. Further, under the grant of equal

parenting time, the children reside with Mother half the time, making it more convenient for

her to schedule the appointments during her parenting time with the children.

{¶ 40} Contrary to Father's assertion, there is evidence to support the trial court's

determination that Mother is the more appropriate parent to make all non-emergency medical

decisions regarding the children. Although Father claims there is no evidence that he

neglects the children’s medical needs, he testified he unilaterally stopped giving laxative to

Daughter because he felt it made her sluggish. Father admitted he stopped giving the

laxative without first consulting the pediatrician, despite an agreed entry ordering the parties

to "comply with the recommendations of the children's doctor [o]n all matters regarding the

children's health and well-being," and a subsequent entry from the trial court ordering the

- 12 -
 Warren CA2015-02-015
CA2015-03-020

parties to "administer the laxative as suggested by the pediatrician until the pediatrician

recommends otherwise." Father defended his action by stating that the laxative was merely

suggested, but not recommended, by the pediatrician. Father also testified he thought it was

odd for Mother, a young woman who had never reared children before, to call the doctor's

office whenever Mother had medical concerns and questions.

{¶ 41} Father finally asserts that Mother might take advantage of the fact he is

required to provide the health insurance for the children to run up medical bills. However, the

divorce decree plainly provides that "all co-pays, deductible costs required under the health

insurance policy and all other uncovered health care expenses" must be paid 50 percent by

Father and 50 percent by Mother, thus providing a disincentive for Mother to seek

unnecessary medical treatment for the children. We also note that the divorce decree

requires Mother to consult with Father regarding any non-emergency medical decisions and

to notify Father about medical appointments, which he may attend if he so chooses, thus

giving Father an opportunity to participate in the children's medical care.

{¶ 42} In light of all of the foregoing, we find that the trial court did not abuse its

discretion in designating Father as the residential parent and legal custodian of the children

and in granting Mother sole authority to make all non-emergency medical decisions regarding

the parties' children.

{¶ 43} Father's first assignment of error and Mother's first cross-assignment of error

are overruled.

{¶ 44} Father's Assignment of Error No. 2:

{¶ 45} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT IN THE WAY THAT IT DEVISED THE VISITATION SCHEDULE.

{¶ 46} Father argues the trial court abused its discretion in granting equal parenting

- 13 -
 Warren CA2015-02-015
CA2015-03-020

time to the parties in a 2-2-3-day alternating schedule because the parties reside in different

school districts and one hour away from one another, and such schedule requires frequent

exchanges of the children which, in turn, will require frequent contacts between the parties

and increase the potential for further problems between them.

{¶ 47} A trial court has broad discretion in deciding visitation issues, and its decision

will not be reversed on appeal absent an abuse of discretion. Bristow v. Bristow, 12th Dist.

Butler No. CA2009-05-139, 2010-Ohio-3469, ¶ 18. The court's primary consideration should

always be the best interest of the child. Shafor v. Shafor, 12th Dist. Warren No. CA2008-01-

015, 2009-Ohio-191, ¶ 9. "Whenever possible," the order or decree establishing a specific

parenting-time schedule "shall ensure the opportunity for both parents to have frequent and

continuing contact with the child, unless frequent and continuing contact by either parent with

the child would not be in the best interest of the child." R.C. 3109.051(A).

{¶ 48} In establishing a specific parenting-time schedule, a trial court is required to

consider the factors set forth in R.C. 3109.051(D). Bristow at ¶ 16. The factors include: (1)

the child's interaction and interrelationship with his or her parents; (2) the geographical

location and distance between the parents' respective homes; (3) the child and parents'

available time, including each parent's employment schedule; (4) the age of the child; (5) the

child's adjustment to his or her home; (6) the health and safety of the child; (7) the mental

and physical health of all the parties; (8) the parent more likely to honor and facilitate court-

approved parenting time rights or visitation and companionship rights; and (9) "any other

factor in the best interest of the child." After considering the factors listed in R.C.

3109.051(D), the trial court, in its sound discretion, must determine what parenting time

schedule is in the best interest of the child. Bristow at ¶ 16.

{¶ 49} Upon a thorough review of the record, we find the trial court did not abuse its

- 14 -
 Warren CA2015-02-015
CA2015-03-020

discretion in granting the parties equal parenting time in a 2-2-3-day alternating schedule.

{¶ 50} As stated above, pursuant to R.C. 3109.051(A), a parenting-time schedule

must, whenever possible, afford both parents frequent and continuing contact with their child,

unless such would not be in the best interest of the child. In the case at bar, the 2-2-3

alternating schedule, and consequently the number of weekly exchanges of the children, are

a direct result of both the trial court's decision to grant equal parenting time to the parties and

the parties' strong wish to see their children as often as possible.

{¶ 51} Indeed, the record shows that at the close of the hearing, the trial court stated

its firm intention to grant the parties equal parenting time. Neither party objected.

Subsequently, the trial court addressed the issue of the parenting time schedule as follows:

I think the issue for you guys is, is how you want to do it. I can
limit the exchanges to twice a week by dad on Monday and
Tuesday, Mom on Wednesday and Thursday and then you
alternate the weekends but if I [do] that you're going to not see
the kids for up to five days uh … when it is not your weekend.

The flip side is, is I can do a two, two, three, two, two, three uh…
alternating schedule so that you got Monday, Tuesday, Tuesday,
Wednesday…you got the weekend then * * * you just flip it.
Monday, Tuesday, Tuesday, Wednesday and the other one's got
the weekend and then you're not seeing the kids for three days
so, Ms. Carr, * * * which do you want to do? There is no way
else to do it because I'm going to give you equal parenting time
so there is no other ways to do it so you're either going to limit
the exchanges or you're not going to see the kids, potentially, for
five days[.]

{¶ 52} The trial court then asked both parties, "what is your preference?" Both parties

unequivocally replied they could not go five days without seeing their children. Thus, when

given the choice between two possible parenting-time schedules, both parties explicitly chose

the 2-2-3 alternating schedule. Given Father's clear preference at the hearing and his failure

to seek a parenting-time schedule providing for less frequent exchanges and contact with

Mother, he cannot now be heard to complain. That the trial court could have fashioned a
- 15 -
 Warren CA2015-02-015
CA2015-03-020

better parenting-time schedule does not render the current 2-2-3 schedule an abuse of

discretion.

{¶ 53} Father also laments the trial court's failure to set a parenting-time schedule,

such as the basic parenting-time schedule, for when the children will attend school. Father

asserts that the current 2-2-3 schedule "will make it impossible for the children to attend

school from [his] home," because the parties live in different school districts, it takes Mother

one hour to drive the children to the exchange spot, and Mother intends to reside in Northern

Kentucky.

{¶ 54} At the time of the hearing, the children were 32 months old and 15 months old

respectively, and thus not of school age. We find the trial court did not abuse its discretion

when it failed to set a parenting-time schedule to meet unknown future circumstances. In

addition, this issue is not ripe for review. In general, a claim that rests upon future events

that may not occur at all, or may not occur as anticipated, is not considered ripe for review.

Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-4998, ¶ 25. The

issue of whether the current 2-2-3 schedule or the basic parenting-time schedule will be

appropriate when the children attend school does not present a ripe issue for this court to

review as the circumstances of the parties may change in the interim.

{¶ 55} The trial court therefore did not abuse its discretion in granting the parties equal

parenting time in a 2-2-3-day alternating schedule. Father's second assignment of error is

overruled.

{¶ 56} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

- 16 -