Kurzen v. Kurzen

[Cite as Kurzen v. Kurzen, 2021-Ohio-1222.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY

Gene P. Kurzen, Jr. Court of Appeals No. H-20-008

Appellant Trial Court No. DR 20009 0729

v.

Brenda L. Kurzen (Bub), et al. DECISION AND JUDGMENT

Appellee Decided: April 9, 2021

*****

Shelly L. Kennedy, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Huron County Court of Common

Pleas, Domestic Relations Division, which overruled objections to the magistrate’s

decisions on child custody and granted parenting time. For the reasons set forth below,

this court affirms the judgment of the trial court.
 I. Background

{¶ 2} After three years of marriage plaintiff-appellant, Gene P. Kurzen, Jr., filed a

complaint for divorce from defendant-appellee, Brenda L. Kurzen, now known as

Brenda L. Bub. The two additional co-defendants are not parties to this appeal.

{¶ 3} As journalized on May 24, 2010, the trial court granted the parties a divorce

and decreed, among other matters, shared parenting in accordance with the approved joint

shared parenting plan for their minor child. The trial court designated appellee the

residential parent for school placement purposes.

{¶ 4} A second child born during the marriage was determined by the trial court to

not be appellant’s child and is not a subject of this appeal. On March 2, 2010, the trial

court ordered the addition of the second child’s father as a co-defendant.

{¶ 5} On December 27, 2011, appellant sought to modify the joint shared

parenting plan alleging the plan was no longer in the best interest of the parties’ child.

By order journalized on June 27, 2012, the trial court approved the parties’ first amended

joint shared parenting plan for their minor child, and pursuant to R.C. 3109.04, decreed,

among other matters, shared parenting in accordance with the first amended joint shared

parenting plan.

{¶ 6} On October 14 and December 9, 2016, appellant filed motions to show cause

against appellee for allegedly violating his court-ordered parenting time schedule with

their child. On December 9, 2016, appellant also filed a motion to reallocate parental

2.
rights and responsibilities by terminating the first amended joint shared parenting plan

and naming appellant as the residential parent and legal custodian of the minor child.

Appellant alleged such reallocation was in the best interest of the child because

appellee’s withholding parenting time without justification was a significant change in

circumstances and compelled termination of the shared parenting plan. Appellant further

alleged that appellee lacked justification because “the Huron County Sheriff’s Office and

the Huron County Department of Job and Family Services have investigated [appellee’s]

concerns and neither have taken any formal action with respect to said investigations.”

{¶ 7} Then on January 23, 2017, appellee filed a motion to terminate the June 27,

2012 shared parenting decree and reallocate parental rights and responsibilities by

naming appellee as the custodial parent and legal guardian of the minor child. Appellee

alleged the child “has expressed severe fear and anxiety at being at [appellant’s]

residence. * * * [I]t is clear that [the child] being at [appellant’s] home in the current

situation could be severely detrimental to his physical, mental and emotional well being.

* * * [M]aintaining shared parenting is clearly not in [the child’s] best interest at this

time.” Appellee argued that “an in camera interview of [the child] would be appropriate

so that the child can express his current concerns to the court.” Appellee averred in an

accompanying affidavit that starting in August 2016, the child complained of being

sexually victimized at appellant’s home with appellant and with appellant’s girlfriend’s

son. In her motion, appellee alleged, “there is an ongoing children services investigation

that needs to be completed and [the child] is in need of further counseling whether he be

3.
aggressor or victim.” Appellee further averred in her affidavit, “Irrespective of who the

aggressor and who the victim is, in this situation, it is clear that [the child] spending time

at [appellant’s] house until this situation is fully resolved is not in [the child’s] best

interest.”

{¶ 8} On February 15, 2017, the parties filed joint stipulations regarding specific

dates between August and December 2016, when “[appellant] was entitled to parenting

time with the minor Child * * *, that said parenting time did not occur as ordered, and

said stipulation constitutes [appellant] meeting its burden in establishing a prima facie

case for contempt in both pending Motions to Show Cause filed in this matter.”

{¶ 9} Significant portions of the record are sealed because of the investigation of

the allegations of the minor child being sexually victimized. After a hearing held on

February 27, 2017, the magistrate ordered, as journalized on March 8, 2017, that among

other matters, the minor child was added as a party defendant and was appointed a

guardian ad litem.

{¶ 10} The trial court magistrate held additional hearings, along with an in-camera

interview of the minor child, and as journalized on July 2, 2019, the magistrate ordered,

among other matters, to terminate the joint amended shared parenting plan, to designate

appellee as the residential parent and legal custodian of the minor child, and to grant

appellant parenting time according to the court’s standard policy on parenting time with

certain conditions.

4.
 {¶ 11} Also journalized on July 2, 2019, the trial court found the magistrate’s

decision was supported by competent and credible evidence and adopted the magistrate’s

decision. The trial court then ordered, among other matters, it was in the best interest of

the child to terminate the May 20, 2010 joint shared parenting plan and the June 26, 2012

first amended joint shared parenting plan, to designate appellee as the residential parent

and legal custodian of the parties’ minor child, and to grant appellant parenting time in

accordance with the court’s standard policy on parenting time with the condition “that

[appellant] shall not permit the child of [his girlfriend] in the household while exercising

parenting time with [the parties’ minor child].”

{¶ 12} Appellant and the guardian ad litem filed objections to the magistrate’s

decision. On February 27, 2020, the trial court overruled all objections and, again,

adopted the magistrate’s decision after identifying the record he reviewed. The trial court

stated in its judgment entry that it conducted “a careful and independent review of the

matter, including the transcripts of proceedings, [and found] that the Magistrate has

properly determined the factual issues, that the Magistrate has applied the law correctly to

the facts, and that the facts as found by the Magistrate are supported by competent,

credible evidence and further support the conclusions of law reached by the Magistrate.”

{¶ 13} Pursuant to R.C. 3109.04(E)(1)(a), the trial court agreed with the

magistrate and found “a change of circumstances since entry of the parties’ prior decree

allocating parental rights and responsibilities.” The magistrate found in its prior decision

that in response to the sexual victimization allegations, appellee “filed a report with local

5.
law enforcement authorities * * * [and] that the local child protective services agency

also intervened.” As a consequence, the magistrate found that appellant “has exercised

no parenting time with the child since mid-September 2016.”

{¶ 14} Pursuant to R.C. 3109.04(E)(1)(a), (E)(2)(c), (F)(1) and (F)(2), the trial

court agreed with the magistrate and ordered to terminate the May 20, 2010 joint shared

parenting plan and the June 26, 2012 first amended joint shared parenting plan, to

reallocate parental rights and responsibilities, and to designate appellee the residential

parent and legal custodian of the parties’ minor child.

{¶ 15} Pursuant to R.C. 3109.051(D), the trial court agreed with the magistrate

and ordered to grant appellant “parenting time with the parties’ minor child in accordance

with this Court’s standard policy, Appendix ‘B,’ a copy of which is attached hereto and

specifically incorporated herein by reference; further, that [appellant] shall not permit the

child of [appellant’s girlfriend] in the household while exercising parenting time with [the

parties’ minor child].” The trial court further agreed with the magistrate and ordered to

permit appellant “to enroll the parties’ minor child in counseling and/or have an

assessment to assist the child in adjustment to resumed parenting time with [appellant.]”

{¶ 16} The trial court then adjudicated appellee in contempt for failing to comply

with the court-ordered visitation by appellant from August 26 to 29, 2016. The trial court

agreed with the magistrate’s decision, despite the magistrate acknowledging appellee

acted on the directives of the Huron County Children’s Services agency when she

6.
withheld appellant’s parenting time. The trial court sentenced appellee to serve three

days in the Huron County Jail with purge conditions, which she eventually met.

{¶ 17} Appellant timely filed this appeal setting forth two assignments of error:

I. The court abused its discretion in upholding the Magistrate’s

Decision, as the Magistrate erred in ruling that the child’s best interest was

served by naming Appellee residential parent and legal custodian.

II. The court abused its discretion in ruling that the child’s best

interests were served by allowing Appellant only a standard visitation

schedule.

II. Objections to Magistrate’s Decision

{¶ 18} In support of his first assignment of error, appellant argues the trial court

abused its discretion when it failed to designate appellant the residential parent and legal

custodian of the child. Appellant concedes the magistrate found three factors favoring

appellee: R.C. 3109.04(F)(1)(b) and (c) and (F)(2)(e). Appellant argues the magistrate

found six factors neutral to either party: R.C. 3109.04(F)(1)(a), (d), (e), (g), (h) and (j).

On balance, appellant argues that if the magistrate actually gave no weight to the

discredited allegations of sexually victimizing the child, then the manifest weight of the

evidence showed four factors in favor of awarding custody to appellant: R.C.

3109.04(F)(1)(f), (g), (i) and 3109.04(F)(2)(b). He argues, “This results in the factors

supporting Appellant to be labeled the residential parent to outweigh the factors that

support Appellee continuing to be labeled the residential parent.”

7.
 {¶ 19} Where a party timely files objections to a magistrate’s decision, the trial

court is required to rule on the objections after “an independent review as to the objected

matters to ascertain that the magistrate has properly determined the factual issues and

appropriately applied the law.” Civ.R. 53(D)(4)(d). This “independent review” is a

de novo review by the trial court. Brancatto v. Boersma, 6th Dist. Lucas No. L-12-1271,

2013-Ohio-3052, ¶ 8. We find the trial court explicitly stated the scope of its

independent review of the record before it.

{¶ 20} We review a trial court’s ruling on the objections to a magistrate’s decision

for an abuse of discretion. Id. at ¶ 9. Abuse of discretion “‘connotes more than an error

of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶ 21} The record shows appellant filed objections to the magistrate’s decision on

July 9, 2019, and on January 21, 2020. We find appellant’s arguments stated in his

objections are substantially similar to his arguments in his first assignment of error on

appeal.

A. Termination of Shared Parenting Plan and Decree

{¶ 22} Both appellant and appellee sought termination of their joint shared

parenting plan. A “shared-parenting plan is designed to facilitate the award of joint

residential and legal custody under a shared-parenting decree by providing terms and

provisions that the parties have agreed to in advance.” Bruns v. Green, Slip Opinion Nos.

8.
2019-1028 and 2019-1178, 2020-Ohio-4787, ¶ 19. By its February 27, 2020 decision and

judgment entry the trial court terminated the prior shared parenting decrees that

incorporated the parties’ original and first amended joint shared parenting plans, which

were also terminated. Id. at ¶ 4, fn. 1 (“R.C. 3109.04(D)(1)(d) requires that an approved

shared-parenting plan be incorporated into a shared-parenting decree that orders shared

parenting. Accordingly, when a court terminates a shared-parenting plan, the shared-

parenting decree also terminates.”).

{¶ 23} R.C. 3109.04(E)(2)(c) and (d) govern a trial court’s decision to terminate a

shared parenting decree that includes a shared parenting plan and the consequence of that

decision. Id. at ¶ 12-13. R.C. 3109.04(E)(2)(c) and (d) state:

In addition to a modification authorized under [R.C. 3109.04(E)(1)]:

* * * (c) The court may terminate a prior final shared parenting decree that

includes a shared parenting plan approved under [R.C. 3109.04(D)(1)(a)(i)]

upon the request of one or both of the parents or whenever it determines

that shared parenting is not in the best interest of the children. * * *. (d)

Upon the termination of a prior final shared parenting decree under [R.C.

3109.04(E)(2)(c)], the court shall proceed and issue a modified decree for

the allocation of parental rights and responsibilities for the care of the

children under the standards applicable under [R.C. 3109.04(A), (B), and

(C)] as if no decree for shared parenting had been granted and as if no

request for shared parenting ever had been made.

9.
 {¶ 24} Although the trial court determined changed circumstances existed

pursuant to R.C. 3109.04(E)(1)(a), it was not required under R.C. 3109.04(E)(2) to first

find changed circumstances, in addition to considering the best interest of the child, prior

to terminating the shared parenting plan and decree and designating one parent as the

residential parent and legal custodian. Bruns at ¶ 21; Green v. Richards, 6th Dist. Wood

No. WD-12-039, 2013-Ohio-406, ¶ 26, fn. 1. R.C. 3109.04(E)(2) authorizes the trial

court, on its own initiative or at the request of one or both parents, to terminate a shared

parenting decree that includes a shared parenting plan when it is in the best interest of the

child. Id. at ¶ 12; Hill v. French, 6th Dist. Lucas No. L-20-1077, 2021-Ohio-24, ¶ 29.

{¶ 25} R.C. 3109.04(F) addresses how a court determines the best interest of the

child under the statute. Id. at ¶ 31; C.L. v. S.M., 6th Dist. Lucas No. L-17-1271, 2018-

Ohio-5281, ¶ 33; In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 67.

In domestic relations matters we are mindful that “[a] reviewing court should not

substitute its judgment for that of the trial court.” Snyder v. Snyder, 6th Dist. Sandusky

No. S-92-30, 1993 WL 356939, *3 (Sept. 17, 1993). We will not disturb a trial court’s

determination of what is in the best interest of the child absent an abuse of discretion.

Hill at ¶ 26.

{¶ 26} R.C. 3109.04(F)(1) through (3) state:

(1) In determining the best interest of a child pursuant to this section,

whether on an original decree allocating parental rights and responsibilities

for the care of children or a modification of a decree allocating those rights

10.
 and responsibilities, 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

[R.C. 3109.04(B)] 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 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 or any member of the household of either

parent previously has been convicted of or pleaded guilty to any criminal

11.
 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 [R.C. 2919.25] 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 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.

12.
 (2) In determining whether shared parenting is in the best interest of

the children, the court shall consider all relevant factors, including, but not

limited to, the factors enumerated in [R.C. 3109.04(F)(1)], the factors

enumerated in [R.C. 3119.23], and all of the following factors:

(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.

(3) When allocating parental rights and responsibilities for the care

of children, the court shall not give preference to a parent because of that

parent’s financial status or condition.

{¶ 27} Despite appellant challenging the trial court’s review of the best interest of

the child factors under R.C. 3109.04(F)(1) and (2), we fail to find the trial court abused

its discretion.

13.
 {¶ 28} Pursuant to R.C. 3109.04(F)(1)(a), the trial court agreed with the

magistrate’s finding that while appellant and appellee agreed that terminating the shared

parenting plan is in the best interests of the child, they disagreed as to whom should be

designated the residential parent and legal custodian. The magistrate determined this is a

neutral factor between the parties.

{¶ 29} Pursuant to R.C. 3109.04(F)(1)(b), the magistrate held an in-camera

interview of the minor child on February 25, 2019, when the child was 12 years old, and

the trial court agreed with the findings. The magistrate found the child “possesses

sufficient reasoning ability to express meaningful wishes and concerns regarding the

allocation of parental rights and responsibilities * * * [and] has expressed to the

Magistrate that he desires no contact with [appellant].” The magistrate found the child

alleges, and appellant denies, that between the ages of three and eight years old, appellant

“has touched his ‘genitalia’ and otherwise had touched him ‘inappropriately’ * * * [and]

that [appellant] has made him sleep in the nude while visiting with him.” The magistrate

determined this factor favors appellee, although “the wishes of the child should be given

somewhat diminished weight because of the failure to establish inappropriate conduct;

further, however, the child’s fear that [appellant] wanted to ‘put mom in jail’ has basis in

fact because of the contempt action which has been pending.”

{¶ 30} Pursuant to R.C. 3109.04(F)(1)(c), the trial court agreed with the

magistrate’s finding that prior to mid-September 2016, appellant “has been observed to

enjoy a positive relationship with [the child] and that they engaged in age-appropriate

14.
activities together,” but since then appellant “has exercised no parenting time with [the

child].” The magistrate made further findings: that appellant’s girlfriend and her son live

with appellant and “there is no significant evidence of problems in the relationship

between [the girlfriend] and [the child]”; that the child “resents [appellant] because of the

child’s belief that [appellant] loves [his girlfriend’s son] more than he loves [the child]”;

and that appellee, her husband, the child’s half-sibling and two step-siblings in appellee’s

home enjoy a positive relationship with the child “with some occasional sibling rivalry,”

engage in age-appropriate activities together and, in the case of one step-sibling of the

same age as the child, are “inseparable” when they are together. The magistrate

determined this factor favors appellee.

{¶ 31} Pursuant to R.C. 3109.04(F)(1)(d), the trial court agreed with the

magistrate’s finding that both appellant and appellee maintain appropriate physical home

environments with no safety or utility issues. The magistrate further found that the child

earned primarily “B” grades in school, and despite 12 absences from school, “there is no

evidence that the absences have impacted significantly his academic performance.” The

child, who plays sports, is perceived by school personnel “to be a ‘jokester’ who ‘likes to

have fun.’” The magistrate determined this factor favors appellee.

{¶ 32} Pursuant to R.C. 3109.04(F)(1)(e), the trial court agreed with the

magistrate’s finding that appellee’s diagnosed medical issues do not impact her ability to

work and “there is no evidence that [appellee] is unable to care properly for [the child].”

The magistrate further found that appellant’s mental health issues should not have a

15.
bearing to provide adequate care for the child and that the forensic psychologist

mistakenly determined appellant required specific sex therapy. The magistrate further

found that the child’s mental health status does not require psychological services, but he

“can attend counseling as needed.” The magistrate determined this is a neutral factor

between the parties and the allegations of abuse against appellant “is given no weight

because there is a failure to establish by a preponderance of competent, credible evidence

that [appellant] engaged in any inappropriate behavior with [the child].”

{¶ 33} Pursuant to R.C. 3109.04(F)(1)(f) and (i), the trial court agreed with the

magistrate’s finding that “[appellee] is less likely than [appellant] to honor and facilitate

court-approved parenting time rights or visitation and companionship rights” because

“the parents have stipulated that, from 26 August 2016 through 05 December 2016

inclusive, ‘[Mother] has willfully failed to allow [Father] to exercise parenting time with

the child * * * in violation of the orders of this Court.’” The magistrate further found that

“[appellee] admits that she permitted [the] then ten-year-old [child] to make decisions on

spending (or not spending) time with [appellant].” The magistrate determined that “the

weight of the factor of [appellee’s] continuous and willful denial of [appellant’s] right to

parenting time in accordance with the order of the Court is diminished significantly

because she was acting on the advice of children’s services and law enforcement

authorities.” The magistrate determined these factors favor appellant.

{¶ 34} Pursuant to R.C. 3109.04(F)(1)(g), the trial court agreed with the

magistrate’s finding that there is no evidence that appellant is either current with, or in

16.
arrears of, his court-ordered child support obligation. The magistrate determined this is a

neutral factor between the parties.

{¶ 35} Pursuant to R.C. 3109.04(F)(1)(h) and (2)(c), the trial court agreed with the

magistrate’s finding that there is no evidence that appellant, appellant’s girlfriend,

appellee or appellee’s husband have been convicted of or plead guilty to any criminal

offense involving abuse or neglect of a child or domestic violence against a family or

household member. “The Magistrate further finds, however, that [the child] has accused

[appellant] of ‘inappropriately’ touching [the child’s] ‘genitalia.’” The magistrate

determined this is a neutral factor between the parties.

{¶ 36} Pursuant to R.C. 3109.04(F)(1)(j), the trial court agreed with the

magistrate’s finding that neither appellant nor appellee “plan to establish a residence

outside the State of Ohio.” The magistrate determined this is a neutral factor between the

parties.

{¶ 37} Pursuant to R.C. 3109.04(F)(2)(a), the trial court agreed with the

magistrate’s finding that originally the parties “were able to cooperate and make

decisions jointly with respect to [the child].” After appellee learned about the allegedly

inappropriate sexual contact in appellant’s home, the magistrate found appellee’s text

messages to appellant on August 27 and 28, 2016, “are no ‘olive branch’” when she

requested to sit down together and discuss their minor child’s allegations. The magistrate

further found appellee’s texts “clearly” indicate that appellee was not cooperative

throughout the process when appellant repeatedly insisted “on compliance with the court

17.
order or having the matter resolved by this Court.” The magistrate further found that

appellee “has never been interested in having [appellant] participate in counseling with

[the child].” The magistrate further found that appellant made the judgment of putting

his girlfriend’s child “on an equal level” with his minor child. Specifically, the

magistrate found that:

[F]aced with what is likely the most challenging test of their ability

to co-parent and make joint decisions in the best interest of their son, both

[appellant] and [appellee] made horrible, damaging decisions resulting in

detriment to themselves, to each other, and to [the child]. The Magistrate

further finds that, of course, [appellee] and [appellant] wholly disregarded

the provision in their amended shared parenting plan entitled “Problem

Resolution around the Child.”

The magistrate determined this factor favors appellant.

{¶ 38} Pursuant to R.C. 3109.04(F)(2)(b), the trial court agreed with the

magistrate’s finding that appellee, “through her text messages to [appellant] and allowing

[the child] to make decisions on parenting time issues, clearly demonstrates she no longer

has any ability to encourage the sharing of love, affection and contact between [the child]

and [appellant].” The magistrate determined this factor favors appellant.

{¶ 39} Pursuant to R.C. 3109.04(F)(2)(d), the trial court agreed with the

magistrate’s finding that “the location of both parents’ homes are in the same county, so

18.
this does not present a challenge to the exercise of shared parenting.” The magistrate

determined this is a neutral factor between the parties.

{¶ 40} Pursuant to R.C. 3109.04(F)(2)(e), the trial court agreed with the

magistrate’s finding that the guardian ad litem recommends appellee be named the

residential parent and legal custodian of the minor child and that appellant have no

contact with the child until appellant “‘has engaged in individual counseling which

specifically addresses the substantiated abuse allegations.’” The magistrate further found

that appellant’s allegation that appellee “has instilled fear in [the child] and has been

placing lies in his head” was not established by a preponderance of competent, credible

evidence.” The magistrate determined this factor favors appellee.

{¶ 41} We reviewed the entire record and do not find the trial court’s attitude was

unreasonable, arbitrary or unconscionable when it determined the best interest of the

child and terminated the shared parenting decree that contained a shared parenting plan.

We do not find the trial court abused its discretion when it overruled appellant’s

objections to the magistrate’s decision. Bruns, Slip Opinion Nos. 2019-1028 and 2019-

1178, 2020-Ohio-4787, at ¶ 14.

B. Reallocation of Parental Rights and Responsibilities

{¶ 42} Appellant further challenges the trial court’s designation of appellee as the

residential parent and legal custodian of the parties’ minor child. R.C. 3109.04 governs

the allocation of parental rights and responsibilities for the care of minor children of a

marriage. We review a trial court’s ruling on a motion to reallocate parental rights and

19.
responsibilities for the care of children for an abuse of discretion. T.S. v. A.T., 6th Dist.

Lucas No. L-19-1296, 2020-Ohio-6871, ¶ 35.

{¶ 43} R.C. 3109.04(E)(2)(d) governs the consequence of the trial court’s

termination of a prior final shared parenting decree under R.C. 3109.04(E)(2)(c): “the

court shall proceed and issue a modified decree for the allocation of parental rights and

responsibilities for the care of the children under the standards applicable under [R.C.

3109.04(A), (B), and (C)] as if no decree for shared parenting had been granted and as if

no request for shared parenting ever had been made.” The Ohio Supreme Court holds the

plain language of R.C. 3109.04(E)(2)(d) only requires the trial court to determine the best

interest of the child before it is compelled to issue a modified decree for the allocation of

parental rights and responsibilities for the care of the children as if no decree for shared

parenting had been granted and as if no request for shared parenting ever had been made.

Bruns at ¶ 13. The “designation of residential parent and legal custodian is an integral

part of the decree allocating parental rights and responsibilities.” (Emphasis sic.). Id. at

¶ 19.

{¶ 44} As required by R.C. 3109.04(E)(2)(d), the trial court is to apply the best

interest of the child factors applicable under R.C. 3109.04(A) through (C) as if no decree

for shared parenting had been granted and as if no request for shared parenting ever had

been made. Id. at ¶ 13, citing R.C. 3109.04(A)(1); R.C. 3109.04(B)(1). The trial court

may in its discretion “interview in chambers any or all of the involved children regarding

their wishes and concerns with respect to the allocation.” Id. We find the provisions of

20.
R.C. 3109.04(C) do not apply in this matter, according to the magistrate’s findings

pursuant to R.C. 3109.04(F)(1)(h) and (2)(c), for which we previously determined the

trial court did not abuse its discretion when it determined the best interest of the child.

{¶ 45} We reviewed the entire record and do not find the trial court’s attitude was

unreasonable, arbitrary or unconscionable when it reallocated parental rights and

responsibilities for the care of the parties’ minor children and designated appellee as the

residential parent and legal custodian. We do not find the trial court abused its discretion

when it overruled appellant’s objections to the magistrate’s decision. As recently stated

by the Ohio Supreme Court, no abuse of discretion is found where “the trial court

followed the plain language of the statute [R.C. 3109.04(E)(2)(d)] and awarded custody

based on its determination of the child’s best interest.” Bruns at ¶ 14, citing R.C.

3109.04(A)(1).

{¶ 46} Appellant’s first assignment of error is not well-taken.

III. Parenting Time

{¶ 47} In support of his second assignment of error, appellant argues the trial court

abused its discretion when it adopted the magistrate’s determination that the R.C.

3109.051(D) factors were similar to the R.C. 3901.04(F)(1) factors when it only reviewed

R.C. 3109.051(D)(2), (3), (4), (7), (8), (9), and (10). Appellant argues, “Had the court

gone through and completed a full analysis of the statutory factors, a different outcome is

likely to occur.” Appellant further argues the trial court found factors supporting

appellant were R.C. 3109.051(D)(10), (13) and (16), and the factors supporting appellee

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were R.C. 3109.051(D)(1) and (6). Appellant further argues the trial court found factors

neutral to either party were R.C. 3109.051(D)(2), (3), (4), (7), (8), and (9). On balance,

appellant argues that the trial court’s failure to “properly” weigh the R.C. 3109.051(D)

factors in appellant’s favor for more parenting time is an abuse of discretion.

{¶ 48} “Modification of visitation rights is governed by R.C. 3109.051.” Braatz v.

Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. R.C.

3109.051(O)(4) defines a “parenting time order,” sometimes interchangeably called a

visitation order, as “an order establishing the amount of time that a child spends with the

parent who is not the residential parent or the amount of time that the child is to be

physically located with a parent under a shared parenting order.” The party requesting a

change in visitation rights need make no showing that there has been a change in

circumstances in order for the trial court to modify those rights, but the trial court shall

determine visitation that is in the best interest of the child. Braatz at paragraph two of the

syllabus. We review a trial court’s determination on parenting time and visitation

conditions pursuant to the 16 factors under R.C. 3109.051(D) for an abuse of discretion.

Id.; Kelley v. Kelley, 6th Dist. Wood No. WD-19-073, 2020-Ohio-1535, ¶ 35.

{¶ 49} In a divorce involving a child where the trial court terminated a prior, final

shared parenting decree and then designated one parent as the residential parent and legal

custodian, in accordance with R.C. 3109.051(C), the trial court “shall make a just and

reasonable order” permitting the non-residential parent “to have parenting time with the

child at the time and under the conditions that the court directs,” unless the court

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determines it is not in the child’s best interest. R.C. 3109.051(A). When determining

parenting time rights, the court “shall consider all other relevant factors, including, but

not limited to, all of the factors listed in [R.C. 3109.051(D)].” R.C. 3109.051(C). One of

the factors is a catchall: “Any other factor in the best interest of the child.” R.C.

3109.051(D)(16). If the trial court fails to explicitly reference the R.C. 3109.051(D)

factors, we may look to the entire record to determine if the factors were considered.

In re K.M.L., 9th Dist. Wayne No. 17AP0009, 2018-Ohio-344, 105 N.E.3d 509, ¶ 6.

{¶ 50} R.C. 3109.051(D) states, as it applies to this appeal:

(D) In determining whether to grant parenting time to a parent

pursuant to this section or [R.C. 3109.12] * * *, in establishing a specific

parenting time or visitation schedule, and in determining other parenting

time matters under this section or [R.C. 3109.12] * * *, the court shall

consider all of the following factors:

(1) The prior interaction and interrelationships of the child with the

child’s parents, siblings, and other persons related by consanguinity or

affinity * * *;

(2) The geographical location of the residence of each parent and the

distance between those residences * * *;

(3) The child’s and parents’ available time, including, but not limited

to, each parent’s employment schedule, the child’s school schedule, and the

child’s and the parents’ holiday and vacation schedule;

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 (4) The age of the child;

(5) The child’s adjustment to home, school, and community;

(6) If the court has interviewed the child in chambers, pursuant to

[R.C. 3109.051(C)], regarding the wishes and concerns of the child as to

parenting time by the parent who is not the residential parent * * *, as to a

specific parenting time or visitation schedule, or as to other parenting time

or visitation matters, the wishes and concerns of the child, as expressed to

the court;

(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend

with siblings;

(9) The mental and physical health of all parties;

(10) Each parent’s willingness to reschedule missed parenting time

and to facilitate the other parent’s parenting time rights * * *;

(11) In relation to parenting time, 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;

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 the

adjudication; and whether there is reason to believe that either parent has

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 acted in a manner resulting in a child being an abused child or a neglected

child;

***

(13) 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;

(14) Whether either parent has established a residence or is planning

to establish a residence outside this state;

***

(16) Any other factor in the best interest of the child.

{¶ 51} We find appellant argues in his second assignment of error the trial court

ignored the parenting time factors at R.C. 3109.051(D)(1), (5), (6), (11), (12), (13), (14),

(15), and (16). We find the trial court adopted the magistrate’s findings, which included,

“Because the majority of the best interest factors in [R.C. 3109.051(D)] mirror those set

forth in R.C. 3109.04(F)(1), the Magistrate hereby incorporates findings made herein

above as if fully rewritten at this time.” We further find the record confirms the trial

court did not ignore the factors appellant disputes.

{¶ 52} We find R.C. 3109.051(D)(1) is substantially similar to R.C.

3109.04(F)(1)(c), and the trial court agreed with the magistrate’s determination this factor

favors appellee. Appellant concedes, “at the very least the relationship between [the

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child] and [appellant] are strained due to the beliefs of [the child], no matter the truth

behind those beliefs.”

{¶ 53} We further find that for R.C. 3109.051(D)(1) and (7), and the trial court

agreed with the magistrate’s finding that:

because the evidence fails to establish by a preponderance of

competent, credible evidence that [appellant] has engaged in inappropriate

conduct with [the child], the restrictions and conditions on parenting time

for [appellant] recommended by Dr. Rindsberg and the Guardian are

afforded substantially diminished weight. The Magistrate further finds that

Dr. Rindsberg has indicated that [the child] can attend counseling as needed

and that there is no indication of a need for psychological services. The

Magistrate further finds that there is no psychotherapy indicated for [the

child]. The Magistrate further finds that Dr. Rindsberg indicated that

“[a]gain there are no signs of major mental illness for [appellant;]

[appellant’s] depression condition should not have a bearing on his ability

to provide adequate care for [the child] or to interact with him at times.”

The Magistrate therefore finds that [appellant] presents no danger to the

health and safety of [the child]. The Magistrate further finds, however, that

counseling may be useful for [appellant] and [the child] to adjust to court-

ordered contact between the two.

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 The Magistrate further finds, however, that [appellant’s girlfriend’s]

son, C.S., may present a risk to [the child’s] health and safety. The

Magistrate further finds that [appellant’s girlfriend] seems to recognize that

not having the boys together is advisable, indicating that she would

probably not keep C.S. at [appellant’s] residence during the initial time if

[the child] came to make his primary residence with [appellant].

{¶ 54} We find R.C. 3109.051(D)(5) is substantially similar to R.C.

3109.04(F)(1)(d), and the trial court agreed with the magistrate’s determination this

factor favors appellee.

{¶ 55} We find R.C. 3109.051(D)(6) is substantially similar to R.C.

3109.04(F)(1)(b), and the trial court agreed with the magistrate’s determination this

factor favors appellee and assigned diminished weight to the child’s wishes. Appellant

concedes, “no matter the actual truth, [the child] has a strained relationship due to what

he believes.”

{¶ 56} We find R.C. 3109.051(D)(11) is substantially similar to R.C.

3109.04(F)(1)(h), and the trial court agreed with the magistrate’s determination this is a

neutral factor between the parties.

{¶ 57} We find R.C. 3109.051(D)(12) and (15) do not apply to the facts of the

matter before us.

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 {¶ 58} We find R.C. 3109.051(D)(13) is substantially similar to R.C.

3109.04(F)(1)(i), and the trial court agreed with the magistrate’s determination this factor

favors appellant.

{¶ 59} We find R.C. 3109.051(D)(14) is substantially similar to R.C.

3109.04(F)(1)(j), and the trial court agreed with the magistrate’s determination this is a

neutral factor between the parties.

{¶ 60} We find R.C. 3109.051(D)(16) is substantially similar to R.C.

3109.04(F)(1) requiring the court to “consider all relevant factors” and is reflected in the

trial court’s review of the entire record and its orders based on the best interest of the

child.

{¶ 61} We further find R.C. 3109.051(D)(4) is reflected in the magistrate’s

analysis of R.C. 3109.04(F)(1)(b), (c), (d), (e) and (h) and disagree with appellant that the

trial court agreed with the magistrate’s determination that the combination of the

underlying factors render R.C. 3109.051(D)(4) a neutral factor between the parties as

opposed to favoring appellee.

{¶ 62} We further find R.C. 3109.051(D)(8) is reflected in the magistrate’s

analysis of R.C. 3109.04(F)(1)(c) and disagree with appellant that the trial court agreed

with the magistrate’s determination the combination of the underlying factors render R.C.

3109.051(D)(8) a neutral factor between the parties as opposed to favoring appellee.

{¶ 63} We reviewed the entire record and do not find the trial court’s attitude was

unreasonable, arbitrary or unconscionable. We find the trial court did not abuse its

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discretion when it determined, pursuant to R.C. 3109.051, appellant’s parenting time

schedule.

{¶ 64} Appellant’s second assignment of error is not well-taken.

{¶ 65} On consideration whereof, the judgment of the Huron County Court of

Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered to pay

the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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