Dickerson v. Dickerson

[Cite as Dickerson v. Dickerson, 2018-Ohio-3502.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

RICHARD W. DICKERSON :
:
Plaintiff-Appellant : Appellate Case No. 2018-CA-21
:
v. : Trial Court Case No. 2016-DS-0208
:
MICHELLE L. DICKERSON : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........

OPINION

Rendered on the 31st day of August, 2018.

...........

ROBERT K. HENDRIX, Atty. Reg. No. 0037351, 77 W. Main Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellant

JAMES E. HEATH, Atty. Reg. No. 0003757, 5 E. Columbia Street, Springfield, Ohio
45502
Attorney for Defendant-Appellee

.............
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HALL, J.

{¶ 1} Father appeals from an order of the Clark County Common Pleas Court,

Domestic Relations Division, terminating a prior shared-parenting decree and awarding

custody of his two children to Mother, his former wife. Father also appeals the court’s

retroactive child-support order.

{¶ 2} We conclude that the record does not support a finding that the trial court’s

custody decision was an abuse of the court’s discretion. We also conclude that the trial

court did not abuse its discretion by ordering Father to begin paying child support on the

date that Mother filed the motion requesting support. We affirm the trial court’s judgment.

I. Background

{¶ 3} The parties were married in 2006 and have two children together, a daughter,

born in 2000,1 and a son, born in 2007. The parties were divorced in April 2016 and a

shared-parenting decree was entered. In the shared-parenting plan included in the

decree, the parties agreed that the children would alternate weeks with each parent (one

week they would live with Mother and the next week with Father). The parties further

agreed that neither would pay child support. They agreed that they would split any

healthcare-related expense incurred for the children that was not covered by insurance,

and they agreed to split all school fees.

{¶ 4} On March 30, 2017, Mother filed a motion asking the court to terminate

shared parenting and to name her the children’s residential parent and legal custodian.

The motion also asked that Father pay her child support. The court appointed a guardian

1 While we were considering this appeal, the daughter turned 18 years old, and is no
longer a minor. Neither party has suggested that the fact affects this appeal, so we
consider the daughter a minor for purposes of our review here.
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ad litem (GAL) for the children on June 26, 2017, and scheduled a hearing for October

31, 2017. On the hearing date, a continuance was granted for Father to obtain a new

lawyer. The hearing was held over two days, on November 30, 2017, and January 23,

2018. At the hearing, Mother and Father testified, as well as Father’s girlfriend. The

GAL also testified and submitted a written report and recommendations.

{¶ 5} On January 30, 2018, the trial court entered an order terminating shared

parenting and designating Mother the children’s residential parent and legal custodian

and granting Father parenting time. The court also ordered Father to pay Mother child

support retroactive to the date that Mother filed her motion.

{¶ 6} Father appeals.

II. Analysis

{¶ 7} Father presents two assignments of error for our review. The first challenges

the child-support order, and the second challenges the custody decision.

A. Retroactive child support

{¶ 8} Father argues in the first assignment of error that the trial court abused its

discretion by ordering that child support begin on the date that Mother filed her motion for

support.

{¶ 9} “Whether to make a modification of support retroactive to the date of the

motion is a question left to the sound discretion of the trial court.” (Citations omitted.)

Lightle v. Lightle, 2d Dist. Champaign No. 2012 CA 8, 2012-Ohio-3284, ¶ 8. Review of a

court’s exercise of discretion looks for abuse, that is, a decision that is unreasonable,

unconscionable, or arbitrary. “A decision is unreasonable if there is no sound reasoning

process that would support that decision. It is not enough that the reviewing court, were
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it deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would support a

contrary result.” AAAA Ents., Inc. v. River Place Community Redevelopment, 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 10} “[A] trial court may, but is not required to, make a modification of support

retroactive to the date the motion was filed.” Wright v. Reck, 2d Dist. Miami No. 2001-CA-

30, 2001 WL 1346038, *2 (Nov. 2, 2001). We have said that “[i]t will often be equitable to

apply a modification retroactively to the date of the motion, due to the substantial amount

of time that it frequently takes to dispose of motions to modify support obligations * * *.”

Lightle at ¶ 8. “Normally, it is expected that a trial court make the date of a motion’s filing

as the retroactive start date of the new orders because the law assumes that the set of

circumstances in place at the time of the filing * * * continues throughout the pendency of

the proceeding.” Winn v. Wilson, 12th Dist. Butler No. CA2017-04-052, 2018-Ohio-1010,

¶ 40. Accordingly, the assumption is that ordering child support to begin on the date of

the motion is reasonable, “ ‘unless special circumstances dictate otherwise.’ ” Id. at ¶ 39,

quoting Kauza v. Kauza, 12th Dist. Clermont No. CA2008-02-014, 2008-Ohio-5668, ¶ 21.

See also State ex rel. Draiss v. Draiss, 70 Ohio App.3d 418, 421, 591 N.E.2d 354 (9th

Dist.1990) (“ ‘[a]bsent some special circumstances, an order of a trial court modifying

child support should be retroactive to the date such modification was first requested’ ”). It

follows that the court need offer an explanation only if the court chooses a different date.

See Lightle at ¶ 8 (stating that “a trial court should generally provide some reason for the

date that it uses, if that date is not the date of the motion”); In re P.J.H., 196 Ohio App.3d

122, 2011-Ohio-5970, 962 N.E.2d 389, ¶ 12 (2d Dist.) (concluding that making
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modification effective on an arbitrary date other than motion date or date with any other

significance to the litigation was “without any reasonable basis” and an abuse of

discretion).

{¶ 11} The court here ordered Father to pay child support of $822.42 per month

retroactive to the date that Mother filed her motion. The court did not explain its choice of

the start date. Father argues that the usual assumptions about circumstances should not

apply here. He says that the trial court failed to consider that for the entire pendency of

the motion, he had the children as much as Mother did. Father says that the testimony

shows that after Mother filed her motion, the alternating-week shared-parenting

arrangement continued with his son until the trial court entered its custody and support

orders and with daughter at least until the GAL’s interview with daughter, after which

daughter refused to return.

{¶ 12} Mother filed her motion on March 30, 2017, and the trial court entered the

support order on January 30, 2018. As such, Father owed a little over $8,000 for 10

months. The evidence showed that after the alternating-weeks shared-parenting

schedule began, there were several months that the children did not go to Father’s house

at all. Mother testified that at the end of 2016, neither child went for six months. Father

admitted that there was a period when the children did not come but said that it was only

three or four months. The evidence also showed that for several months in the fall of

2017, the daughter did not go to Father’s house. The GAL noted in his report that the

exact period of time that Father did not have the children was disputed. While Mother told

the GAL, consistent with her testimony at the hearing, that it was six months, Father told

the GAL that it was around four to six weeks. It was the GAL’s belief that the period of
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time was months, not weeks, because the daughter corroborated Mother’s

representations, and the period of time appeared to coincide with the date that Father’s

girlfriend moved into his house. We note too that Mother testified that Father owed her

$1,076.76 for his half of expenses related to the children that they had agreed to split.

{¶ 13} Father cites Winn v. Wilson, 12th Dist. Butler No. CA2017-04-052, 2018-

Ohio-1010, in support of his argument. In that case too, the trial court terminated shared

parenting, awarded the mother custody, and ordered the father to pay child support

retroactive to the date that mother filed her motion for support. The appellate court said

that, while a start date retroactive to the date of a motion’s filing is usual, in that case

special circumstances dictated that a different date should be used. The court noted that

the trial court took over a year to decide the mother’s custody and support motions and

that, during that time, “Father had custody, paid for the children’s expenses, and Mother

had only visitation.” Id. at ¶ 41. The court found that there was no reason to make support

retroactive to the filing date of the mother’s motion, because the mother had not yet

become responsible for providing extra support, and making support retroactive would

require the father to pay support for time that he was already providing support as the

residential parent. Noting that the trial court gave no reason why it used the date that the

mother filed her motion, the appellate court concluded that the circumstances in the case

made it an abuse of discretion to order retroactive child support.

{¶ 14} While some of the circumstances in Winn are similar to those here, the

differences are material. The father in Winn was the children’s residential parent during

the pendency of the support motion, but here Father had the children, at best, only half

the time, and the evidence suggests that it was actually less than half. Also, we note that
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Mother testified that Father owed her over $1000 for expenses related to the children.

The trial court said in its support order that it was “[t]aking into account the foregoing

findings [the custody-decision findings] relative to the issues of child support.” Among

those findings was the court’s finding that Mother had essentially been the children’s

primary caregiver throughout. The court’s findings leave the impression that Mother did

much more for the children when they were in her care. The evidence of the

circumstances in this case was somewhat murky. But based on the record, we believe

that the trial court could reasonably have found that the circumstances were not special

enough to justify beginning support on a different date. We cannot say that the court

abused its discretion by ordering child support retroactive to the date that Mother filed her

motion.

{¶ 15} The first assignment of error is overruled.

B. Custody decision

{¶ 16} Father argues in the second assignment of error that the trial court abused

its discretion by terminating shared parenting and naming Mother the children’s

residential parent and legal custodian.

{¶ 17} “The standard of review we apply to a trial court’s decision concerning child

custody is an abuse of discretion.” Musgrove v. Musgrove, 2d Dist. Montgomery No.

24640, 2011-Ohio-4460, ¶ 7. A court may terminate shared parenting if it determines that

shared parenting is not in the best interest of the children. R.C. 3109.04(E)(2). In

determining whether shared parenting is in the children’s best interest, the court must

consider all relevant factors, including those enumerated in R.C. 3119.23, R.C.

3109.04(F)(1), and R.C. 3109.04(F)(2). R.C. 3109.04(F)(2).
 -8-

{¶ 18} The record here shows that, in its best-interest determination, the trial court

considered the relevant factors, focusing on those in R.C. 3109.04(F)(2), which are

particular to shared parenting:

(a) The ability of the parents to cooperate and make decisions jointly, with

respect to the children;

(b) The ability of each parent to encourage the sharing of love, affection,

and contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse, other

domestic violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the proximity

relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, if the child

has a guardian ad litem.

The court found that the parties lacked the ability to cooperate and make joint decisions

with respect to the children. Since shared parenting began, said the court, the level of

cooperation between the parties had diminished, as had their ability to communicate

effectively for the children’s benefit. The court found that neither parent encouraged the

sharing of love, affection, and contact between the children and the other parent. The

court found that the evidence did not indicate anything related to abuse or kidnapping.

The court further found that the geographical proximity of the parents to each other did

not impede shared parenting, as they lived within a five-minute drive of each other. Lastly,

the court noted that the GAL recommended in his report that shared parenting be

terminated. Based on these factors, the trial court determined that shared parenting was
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not in the children’s best interest.

{¶ 19} After a court terminates shared parenting, the court must allocate parental

rights and responsibilities, as if no shared parenting plan had ever been granted. R.C.

3109.04(E)(2)(d). The court must designate one parent as the residential parent and legal

custodian of the children, “in a manner consistent with the best interest of the children.”

R.C. 3109.04(A)(1). To determine the children’s best interest in this respect, the court

must consider all relevant factors, including those enumerated in R.C. 3109.04(F)(1),

which include (1) the parents’ wishes; (2) the children’s wishes, as expressed to the court

in chambers; (3) the children’s interactions and interrelationships with parents, siblings,

and other persons who may significantly affect the children’s best interest; (4) the

children’s adjustment to home, school, and community; (5) the mental and physical health

of all persons involved in the situation; (6) the parent more likely to honor and facilitate

visitation; (7) whether one parent has denied the other parenting time; (8) whether child-

support orders have been followed; and (9) whether either parent has established or is

planning to establish a residence outside of Ohio.

{¶ 20} The record here shows that the trial court considered the relevant statutory

factors. The court noted that Mother sought to terminate shared parenting and be the

children’s residential parent and legal custodian, while Father opposed terminating

shared parenting. The court interviewed each child in chambers, finding that the daughter

was mature enough to adequately articulate her wishes and concerns but that the son

was not sufficiently mature to do so. The court declined to state in its decision what either

child expressed during the interviews.

{¶ 21} The court found that Father’s home was clean and spacious and more than
 -10-

adequate to meet the children’s needs. The court noted that on the first day of the hearing

in this case, November 30, 2017, Father was living with his girlfriend, Shonda Stewart,2

and that she testified that day. The court found that Father’s relationship with Stewart had

been unstable at best. In her testimony, Stewart said that she and Father planned to

marry someday. She acknowledged, though, that she had been living with Father since

April 2016, except for about six weeks in late 2016, when she moved out, and except for

another six weeks in mid-2017, when she again moved out. When Father testified on the

second day of the hearing, January 23, 2018, he admitted that Stewart had again moved

out, about three weeks before. As for Father’s relationship with the children, the court

found that Father had a very strained relationship with his daughter, such that he had not

visited with her since roughly the summer of 2017. The court said that Father had made

very little, if any, effort to repair the relationship. But with his son the court found that

Father had a close and loving relationship. The court further found that, for the most part,

the boy had a close and loving relationship with Father’s friends and family. The court

noted that alternating week-to-week shared parenting continued with the boy.

{¶ 22} As for Mother, the court found that her home too was clean and spacious

and more than adequate to meet the children’s needs. She lived with her boyfriend, who

moved in on November 1, 2017. The court found that Mother had a very close and loving

relationship with both children and that the children, for the most part, have a close and

loving relationship with her friends and family. The court found that since shared parenting

began, Mother had essentially been the children’s primary caregiver and that she had

2The trial court decision refers to the girlfriend as “Shaunda” Stewart but the transcript
and briefs refer to her as “Shonda.”
 -11-

cared for the children well. The court found that, despite Father’s contentions to the

contrary, Mother was more likely to attend to the children’s educational needs; more likely

to attend to the children’s medical, dental, and other health care needs; and more likely

to attend to the children’s developmental and physical needs. The court found that Mother

was better suited to take care of their day-to-day needs. The court found that if the

children lived primarily with Mother, they would have a greater opportunity to have positive

interactions and interrelationships with friends and relatives.

{¶ 23} The trial court found that it was not provided sufficient evidence to determine

whether either party had mental- or physical-health issues that would prevent the parent

from properly caring for the children. As for the children, the court found that, while they

had no unresolved physical-health issues, they both had unresolved mental-health issues

that required counseling. The court noted that Mother had both children in counseling.

The court also noted that Father thought that counseling was unnecessary and that it was

being used by the children as “an excuse not to perform.” The court expressly disagreed

with Father, saying that in its experience, “counselor’s will not counsel with these children

if they believe that there are no issues with the children or that the issues have since been

resolved.”

{¶ 24} The court found nothing of note about other statutory factors. Both parties,

said the court, are likely to honor and facilitate visitation. No current child support had

been ordered, so there was no arrearage. The court found that neither parent had

continuously or willfully denied the other parenting time. And neither parent had

established, or indicated a plan to establish, a residence outside Ohio.

{¶ 25} The trial court also considered the GAL’s recommendations made in his
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written report and testimony. The GAL recommended that Mother be designated the

children’s residential parent. The GAL also recommended that Father and his daughter

strongly consider counseling to improve their communication and relationship.

{¶ 26} Lastly, we note that the trial court made express credibility determinations.

The court said that, for the most part, Mother’s testimony was credible. As for Father, the

court said that, at times, his testimony was not credible.

{¶ 27} Father argues that the evidence was insufficient to support many of the trial

court’s findings, that the court’s best-interest determinations were conclusory, and that

the court failed to state any specific facts to support its conclusions. Father disputes the

court’s finding that he and Mother lack the ability to communicate and make decisions

regarding the children. With respect to their son, says Father, there was no evidence that

they had such problems. Similarly, he says that there was no evidence of any conflict

between them related to their daughter, except for the disagreement about counseling.

Father also disputes the finding that he made very little, if any, effort to repair his

relationship with his daughter. He points out that he testified that he had texted an apology

to her. Father further says that there was no evidence that either he or Mother lacked the

ability to encourage the sharing of love, affection, and contact between the children and

the other parent. There was also no evidence, Father says, to support the finding that the

children have a greater opportunity for positive relationships and interactions with friends

and relatives in Mother’s custody. Father also disputes the finding that Mother served as

the children’s primary caregiver. He says that the children spent the same amount of time

with him as they did with Mother. Finally, Father says that the trial court should not have

relied on the GAL’s report, because the GAL did a particularly poor job.
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{¶ 28} We have considered each point that Father raises. But we are mindful that

“[t]he discretion which a trial court enjoys in custody matters should be afforded 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 parties in a custody proceeding cannot be conveyed to

a reviewing court by a printed record.” Beismann v. Beismann, 2d Dist. Montgomery No.

22323, 2008-Ohio-984, ¶ 20, citing Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846

(1988). The record here sufficiently supports the trial courts determinations. We cannot

conclude that the court abused its discretion in determining that the children’s best

interest supported terminating shared parenting and designating Mother as the primary

residential parent.

{¶ 29} The second assignment of error is overruled.

III. Conclusion

{¶ 30} We have overruled both of the assignments of error presented. The trial

court’s judgment is affirmed.

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WELBAUM, P. J. and FROELICH, J., concur.

Copies mailed to:

Robert K. Hendrix
James E. Heath
Michael Edwards, GAL
Hon. Thomas J. Capper