Ackley v. Haney

[Cite as Ackley v. Haney, 2022-Ohio-2382.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

ADAM ACKLEY, :

Appellant, : CASE NO. CA2021-07-017

: OPINION
- vs - 7/11/2022
:

KODI HANEY, :

Appellee. :

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. AD20110531

Treynor Law, and Shannon Marie Treynor, for appellant.

Mary King Law, and Mary E. King, for appellee.

PIPER, P.J.

{¶1} Appellant, Adam Ackley ("Father"), appeals a decision of the Fayette County

Court of Common Pleas, Juvenile Division, terminating his shared parenting plan and

designating appellee, Kodi Haney ("Mother"), as residential parent and legal custodian of

their son.

{¶2} Father and Mother were never married, but had a child together, C.A., born

on September 19, 2011. In 2012, the juvenile court adopted a shared parenting plan. The

plan directed the parenting times and other parental-related issues. The parties worked
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well together until approximately the time of the COVID-19 pandemic or a little later when

Father remarried in August 2020.

{¶3} Prior to the COVID-19 pandemic, Mother commuted regularly for her job and

therefore dropped C.A. at Father's home for transportation to and from school. This

arrangement worked, in part, because Father derives his income from a military service-

related disability and considers himself a stay-at-home dad. Although disabled, Father

testified that none of his disabilities have any impact on his ability to effectively parent the

child. Due to the pandemic causing widespread closures of schools and the fact that Mother

was then permitted to work from home, Mother testified that she began handling daily

schooling responsibilities.

{¶4} Prior to the start of the new school term, Father approached Mother and asked

about homeschooling C.A. if the school mandated mask-wearing.1 Although Father insists

Mother was amenable to homeschooling, Mother claims she adopted a wait and see

approach. After weighing the pros and cons, Mother decided that homeschooling was not

appropriate for C.A. Mother believed there were significant social and developmental

benefits of attending in-person schooling.

{¶5} The parties had further conflict regarding the shared parenting plan due to a

disagreement over C.A.'s participation in youth football. Father initially enrolled C.A. in the

program, in which he served as a coach, but later decided that C.A. would no longer

participate.2 There was significant testimony concerning Father's tenure as football coach

particularly since he was terminated from that role. Father introduced testimony from a

member of the board of the football program, Ronnie Grim. Grim testified that some parents

1. Father did not want C.A. to be forced to wear a mask, breathing in his own air. However, Mother testified
that C.A. had no issue with wearing a mask in school.

2. Father testified that C.A. no longer wanted to participate in football while Mother claimed that Father
unilaterally disenrolled him from the team and withheld his football equipment.

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had concerns about Father disciplining the children, such as with push-ups and running.

Grim also acknowledged that Father can be difficult to deal with "at times." Meanwhile,

Mother introduced testimony from a witness that Father was very agitated and flustered

during youth football and displayed instances of inappropriate behavior.

{¶6} Mother testified that youth football was one of the issues that started to

interfere with the shared parenting plan. Among other things, Mother testified that she

wanted to allow C.A. to continue to participate. However, when she took C.A. to a practice,

she learned that Father produced court paperwork to the football program indicating his

authority to remove C.A. from the team. There was testimony that Father told a board

member he had custody of C.A. Mother then had to produce the shared parenting plan

before C.A. was allowed to practice again.

{¶7} In August 2020, Father remarried. Father alleges that his marriage impacted

the operation of the shared parenting plan. Father complains that Mother no longer dropped

C.A. at his home for transportation to and from school. He also alleges that Mother

unilaterally decided to permit C.A. to attend in-person schooling notwithstanding the mask

mandate. Mother disputes Father's characterization, instead claiming that her ability to

work from home allowed her to handle school transportation issues without Father's

assistance. She insisted that Father was informed about the decision to return to in-person

school and that returning to in-person instruction was in C.A.'s best interest.

{¶8} On October 12, 2020, Father filed a motion for change of parental rights and

responsibilities and requested a modification of the parenting schedule and residential

parent designation.3 On February 8, 2021, Mother filed an alternative motion requesting

3. Although Father requested a modification of the parenting plan, he also stated that he and Mother are
"unable to agree" with matters pertaining to schooling. However, during the hearing Father offered conflicting
accounts regarding his wishes. At one point Father acknowledged that he was seeking "full custody."

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that she be designated the residential parent if the court terminated the shared parenting

plan. At a hearing on the matter, the juvenile court heard testimony from several individuals,

including Father, his new wife, Mother, Mother's coworker, the guardian ad litem ("GAL")

and two individuals associated with the youth football program.4 The child was interviewed

in camera by the juvenile court.

{¶9} Following the hearing, the juvenile court terminated the shared parenting

agreement, designated Mother as the residential parent, and awarded custody of the child

to Mother. The juvenile court did not modify the parenting schedule but did issue orders

concerning child support. Father now appeals the juvenile court's decision, raising three

assignments of error for review.

{¶10} Assignment of Error No. 1:

{¶11} THE TRIAL COURT ERRED IN TERMINATING THE SHARED PARENTING

PLAN.

{¶12} In his first assignment of error, Father argues the juvenile court abused its

discretion in terminating the shared parenting plan in naming Mother as the residential

parent and legal custodian of C.A.

{¶13} It is undisputed a juvenile court has discretion in custody matters, and its

decision in such matters will not be reversed absent an abuse of that discretion. In re A.D.,

12th Dist. Fayette No. CA2012-07-023, 2013-Ohio-1308, ¶ 15. An abuse of discretion is

more than an error of law or judgment; it implies that the juvenile court acted unreasonably,

arbitrarily, or unconscionably. Id.

{¶14} According to R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting

4. Father also introduced testimony from an individual he knows through his church who also served as GAL
for "his prior case." However, this individual offered limited testimony and denied conducting any investigation
into the parenting differences between Mother and Father.

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decree upon request of one or both of the parents, or if the shared parenting plan is not in

the best interest of the child. The decision to terminate a shared parenting plan and to then

award custody of the child to one parent over the other is determined by a consideration

and balancing of the factors set forth in R.C. 3109.04(F)(1) and (F)(2).

{¶15} To determine what is in the best interest of a child, R.C. 3109.04(F)(1)

requires a court to consider all relevant factors. Bristow v. Bristow, 12th Dist. Butler No.

CA2009-05-139, 2010-Ohio-3469, ¶ 8. These factors include, but are not limited to: (1) the

wishes of the parents; (2) the child's interaction and interrelationship with his parents,

siblings, and other persons who may significantly affect the child's best interest; (3) the

child's adjustment to home, school, and community; (4) the mental and physical health of

all persons involved; and (5) the likelihood that the caregiver would honor and facilitate

visitation and parenting time. Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-

106, 2016-Ohio-4998, ¶ 14.

{¶16} "When determining whether shared parenting is in a child's best interest, the

trial court must consider the additional factors set forth in R.C. 3109.04(F)(2)." Chaney v.

Chaney, 12th Dist. Warren No. CA2021-09-087, 2022-Ohio-1442, ¶ 37, citing Adkins v.

Adkins, 12th Dist. Butler No. CA2016-12-227, 2017-Ohio-8636, ¶ 11. These factors are (1)

the ability of the parents to cooperate and make decisions jointly, with respect to the child;

(2) the ability of each parent to encourage the sharing of love, affection, and contact

between the child and the other parent; (3) any history or potential for abuse; (4) the

geographic proximity of the parents to one another; (5) and the recommendation of the

guardian ad litem, if the child has a guardian ad litem. R.C. 3109.04(F)(2)(a) thru (e). "While

no factor in R.C. 3109.04(F)(2) is dispositive, effective communication and cooperation

between the parties is paramount in successful shared parenting." Seng v. Seng, 12th Dist.

Clermont No. CA2007-12-120, 2008-Ohio-6758, ¶ 21.

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{¶17} After a thorough review of the record, we find that the juvenile court's decision

to terminate the shared parenting plan and name Mother as the residential parent and legal

custodian of the child was not unreasonable, arbitrary, or unconscionable. The juvenile

court considered the factors set forth in R.C. 3109.04(F) in allocating parental rights and

responsibilities and found that the shared parenting plan was no longer in the best interest

of C.A. Although Father testified at the hearing that he did not want to terminate the shared

parenting plan, only modify it, the record is replete with instances of disagreement between

Mother and Father. Furthermore, in Father's initial filing to change parental rights and

responsibilities, he specifically mentioned the parties' inability to agree on schooling. In

addition, Mother testified that the shared parenting plan was no longer working.

{¶18} The evidence established that C.A. is loved by both parents and that both

parents live in the same community. In fact, they are practically neighbors, living only about

500 feet from one another. However, the juvenile court expressed concern about Father's

behavior, and that he has put C.A. "in the middle of [Father's] disputes with Mother." The

juvenile court stated that this could create mental health issues for C.A. and expressed

concerns with Father's own mental health. The juvenile court also found that Mother was

more likely to facilitate court approved parenting time rights based upon the evidence

presented in the hearing.

{¶19} On appeal, Father argues that the juvenile court's decision was predicated on

"relatively minor factual findings which tipped the best interest scales" in favor of Mother.

He acknowledged the testimony concerning his irritability and temper, but suggests those

episodes were exacerbated by his failed experiment in coaching football and his frustration

with mandatory masks in school. He further claims the juvenile court "punish[ed]" him with

its decision and that the juvenile court's decision was "draconian." Noticeably Father does

not address how his behavior impacted C.A.

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{¶20} Contrary to his arguments otherwise, the juvenile court's decision did not set

out to punish Father. Rather, the record reveals that the parties were no longer able to

maintain their original shared parenting plan. C.A.'s best interest required termination of

the shared parenting plan, and it was incumbent on the juvenile court to designate one of

the parties as residential parent and custodian of the child. The juvenile court heard

competing testimony and ultimately found it was in C.A.'s best interest for Mother to be

named residential parental and legal custodian. As this court has previously stated "[i]t is

the role of the [juvenile] court to determine the relative weight to assign each factor, in

relation to the others, when determining the [child's] best interest." Ruble v. Ruble, 12th

Dist. Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 18. We will not second-guess the

juvenile court's determination of the weight to be given to these factors when there is,

credible evidence supporting the juvenile court's determination. Manis v. Manis, 12th Dist.

Warren No. CA2014-05-070, 2014-Ohio-5086, ¶ 22.

{¶21} Given the evidence presented, we find that the juvenile court did not abuse

its discretion in terminating the shared parenting plan and designating Mother the residential

parent and legal custodian of the parties' minor child. The juvenile court's decision is

supported by competent, credible evidence. Accordingly, Father's first assignment of error

is overruled.

{¶22} Assignment of Error No. 2:

{¶23} THE COURT ERRED IN PERMITTING THE GUARDIAN AD LITEM'S

TESTIMONY AND REPORT IN (sic) AS EVIDENCE WHEN NEITHER COMPLIED WITH

SUP. R. 48(D).

{¶24} In his second assignment of error, Father argues the juvenile court erred by

permitting the GAL to testify and by accepting the GAL's written report, complaining that the

GAL did not comply with the Rules of Superintendence.

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{¶25} According to Rules of Superintendence, Sup.R. 48 through 48.07 shall apply

in all domestic relations and juvenile cases where a court appoints a GAL to act in the best

interest of a child. Sup.R. 48. Sup.R. 48.03(D) lists, inter alia, the general responsibilities

and duties of a GAL. Similarly, Sup.R. 48.06 provides general report requirements for a

GAL's report along with more specific instructions if the report is generated in allocation of

parental rights and responsibilities cases or in abuse, neglect, dependency, unruly, and

delinquency reports. The general reporting requirements for a GAL's report state:

(1) A guardian ad litem shall prepare a written final report,
including recommendations to the court, within the times set
forth in this division. The report shall affirmatively state that
responsibilities have been met and shall detail the activities
performed, hearings attended, persons interviewed, documents
reviewed, experts consulted, and all other relevant information
considered by the guardian ad litem in reaching the
recommendations and in accomplishing the duties required by
statute, by court rule, and in the order of appointment from the
court.

(2) All reports shall include the following warning: "The guardian
ad litem report shall be provided to the court, unrepresented
parties, and legal counsel. Any other disclosure of the report
must be approved in advance by the court. Unauthorized
disclosure or distribution of the report may be subject to court
action, including the penalties for contempt, which include fine
and/or incarceration."

(3) Oral and written reports shall address relevant issues, but
shall not be considered determinative.

(4) A guardian ad litem shall be available to testify at any
relevant hearing and may orally supplement the report at the
conclusion of the hearing.

(5) A guardian ad litem may provide an interim written or oral
report at any time.

Sup.R. 48.06(A).

{¶26} Rules of Superintendence do not have the same force as statute or case law,

but are rather purely internal housekeeping rules which do not create substantive rights in

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individuals or procedural law. In re J.S., 12th Dist. Butler Nos. CA2016-07-141 and

CA2016-07-142, 2016-Ohio-7833, ¶ 12. Therefore, noncompliance with such a rule is

generally not grounds for reversal. In re B.J., 12th Dist. Warren Nos. CA2016-05-036 and

CA2016-05-038, 2016-Ohio-7440, ¶ 57.

{¶27} Father argues that the GAL failed to satisfy her duties and responsibilities as

the GAL because she did not interview Father's current spouse, Father's other child,

Mother's fiancé, or Mother's other child. Father also argues that the GAL's report was

deficient because it does not indicate whether any school or medical records were reviewed.

He also takes issue with the brevity of the report and notes that the GAL included interviews

with two individuals whose names did not appear in the report. 5

{¶28} Following review of the record, we find the juvenile court did not err by

permitting the GAL to testify or by accepting her written report. As noted above,

noncompliance with the Rules of Superintendence is generally not grounds for reversal. In

this case, the report stated that the GAL met with Father at her office on two separate

occasions and conducted a home visit while C.A. was in Father's care. The GAL noted that

during the home visit, Father's other son and his current wife were present. The GAL report

then notes that she also met with Mother in her home while C.A. was in her care and that

Mother's other daughter was present as well. After briefly summarizing other work she had

done on the case, the GAL recommended that Mother be named as the residential parent.

{¶29} Although we agree that the GAL report is brief, we find there was no reason

to exclude her report or to prevent her from testifying in this matter. The record reflects that

the GAL did conduct an investigation into the best interests of C.A. The GAL was also

5. We fully agree that a GAL's duties and responsibilities are not to be taken lightly. Trial courts must monitor
the performance of GALs to ensure the quality of their opinions and reports. GALs who do not appreciate the
seriousness of their roles or possess the time necessary to fulfill their responsibilities must not be permitted
to act on behalf of the court. See In re E.H., 12th Dist. Preble No. CA2021-11-015, 2022-Ohio-1275.

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subject to cross-examination on both her report and investigation, including who she

interviewed and who she did not interview. While Father wondered why the GAL did not

interview more individuals in connection with her investigation, Father does not address any

facts that would impact the outcome of these proceedings. The juvenile court must decide

the weight to be attributed to a GAL's testimony and report.

{¶30} Finally, the record reflects that the juvenile court had ample justification for

awarding Mother custody in this case. Although the parties had initially worked well in a

shared parting arrangement, the evidence showed that it was no longer possible due to

substantial disagreements between the parties. The GAL was but one witness in this case

where both Mother and Father were able to testify and present their reasons why they

should be awarded custody. The juvenile court was not required to reject the GAL's

testimony or rule her report inadmissible. Instead, the record reflects the juvenile court

considered the GAL's recommendation and weighed it in accordance with the other

evidence admitted during the final hearing. Accordingly, we find Father's second

assignment of error is without merit.

{¶31} Assignment of Error No. 3:

{¶32} THE COURT ERRED IN ATTRIBUTING SOCIAL SECUIRTY DISABILITY

BENEFIT PAYMENTS PAYABLE TO THE CHILD AS AN INCLUSION INTO MOTHER'S

INCOME INSTEAD OF AS [sic] OFFSET AND CREDIT TO THE AMOUNT OF SUPPORT

CALCULATED.

{¶33} In his third assignment of error, Father argues the juvenile court erred in its

computation of support. As relevant here, the juvenile court's decision states that "social

security and/or military benefits received by [Father] on behalf of [C.A.] be redirected to

[Mother]."

{¶34} Both Mother and Father agree that remand is appropriate and cite to R.C.

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3119.05(O), which provides:

Any non-means tested benefit received by the child or children
subject to the order resulting from the claims of either parent
shall be deducted from that parent's annual child support
obligation after all other adjustments have been made. If that
non-means tested benefit exceeds the child support obligation
of the parent from whose claim the benefit is realized, the child
support obligation for that parent shall be zero.

{¶35} Mother concedes that this court should remand this case for the purpose of

determining the benefit C.A. receives and whether recalculation of child support is

necessary based upon those figures. Accordingly, since this issue is conceded, Father's

third assignment of error is sustained.

{¶36} Judgment affirmed in part, reversed in part, and remanded.

HENDRICKSON and BYRNE, JJ., concur.

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