Heilman v. Heilman

[Cite as Heilman v. Heilman, 2012-Ohio-5133.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY

DUSTIN HEILMAN,

PLAINTIFF-APPELLANT, CASE NO. 6-12-08

NICOLE HEILMAN, OPINION

DEFENDANT-APPELLEE.

Appeal from Hardin County Common Pleas Court
Domestic Relations Division
Trial Court No. 2010 3118 DRA

Judgment Affirmed

Date of Decision: November 5, 2012

APPEARANCES:

Scott N. Barrett for Appellant

Nicole Heilman, Appellee
Case No. 6-12-08

PRESTON, J.

{¶1} Plaintiff-appellant, Dustin Heilman, appeals the Hardin County Court

of Common Pleas’ final judgment entry of divorce designating his ex-wife,

defendant-appellee, Nicole Heilman, custody of their minor child and declining to

adopt his proposed shared parenting plan. We affirm.

{¶2} Dustin and Nicole were married on September 3, 2004. (Doc. No. 1).

One child, P.J.L.H. (“P.J.”), was born in 2007 as issue of the marriage. (Id.).

{¶3} On October 6, 2010, Dustin filed a divorce complaint alleging gross

neglect of duty, extreme cruelty, and adultery. (Id.). Dustin also filed a motion

for paternity testing. (Doc. No. 8).

{¶4} On November 4, 2010, Nicole filed an answer denying the substantive

allegations of the complaint and counterclaiming for divorce. (Doc. No. 13).

{¶5} On December 1, 2010, the paternity test was submitted to the trial

court indicating that Dustin was P.J.’s biological father. (Doc. No. 22).

{¶6} On January 4, 2011, Dustin filed a motion for shared parenting plan.

(Doc. No. 27).

{¶7} On January 27, 2011, the magistrate appointed Attorney Linda S.

Hinton as P.J.’s guardian ad litem (“GAL”) upon agreement of the parties. (Doc.

No. 31).

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{¶8} On May 24, 2011, Dustin filed a motion for mediation, which the

magistrate subsequently granted. (Doc. Nos. 35, 37).

{¶9} On October 6, 2011, Dustin filed an amended shared parenting plan.

(Doc. No. 45). On October 24, 2011, the matter proceeded to a final hearing.

(Doc. No. 44). On November 3, 2011, Dustin and Nicole filed a separation

agreement, leaving only the issue of child custody unresolved. (Doc. No. 49);

(Joint Ex. I); (Oct. 24, 2011 Tr. at 1-2).

{¶10} On December 5, 2011, the magistrate issued a decision awarding

residential custody of P.J. to Nicole and denying Dustin’s motion for shared

parenting. (Doc. No. 50). The magistrate concluded that shared parenting would

not be in P.J.’s best interest since the parties could not cooperate or communicate

with one another, Dustin initially destabilized the family relationship, and Nicole

has been P.J.’s primary caregiver. (Id.).

{¶11} On January 19, 2012, after a transcript of the final divorce hearing

was filed, Dustin filed objections to the magistrate’s decision. (Doc. No. 54). On

March 9, 2012, the trial court overruled Dustin’s objections. (Doc. No. 58). On

April 5, 2012, the trial court issued the final judgment entry of divorce. (Doc. No.

59).

{¶12} On May 2, 2012, Dustin filed a notice of appeal. (Doc. No. 61).

Dustin now appeals, raising three assignments of error for our review. For clarity

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of analysis, we elect to address Dustin’s first and second assignments of error

together.

Assignment of Error No. I

The trial court committed an error of law and abused its
discretion in failing to grant Dustin Heilman’s request for
shared parenting.

Assignment of Error No. II

The trial court abused its discretion in failing to allow Dustin
Heilman an opportunity to provide amendments to his shared
parenting plan to satisfy the court’s concern or requirements for
an appropriate shared parenting plan.

{¶13} In his first assignment of error, Dustin argues that the trial court

abused its discretion by failing to grant his request for shared parenting. In his

second assignment of error, Dustin argues the trial court erred by refusing him the

opportunity to submit amendments to his proposed shared parenting plan that

would satisfy the court’s concerns.

{¶14} A trial court has broad discretion in determining whether to order

shared parenting. Huelskamp v. Hueslkamp, 185 Ohio App.3d 611, 2009-Ohio-

6864, ¶ 48 (3d Dist.), citing Lopez v. Coleson, 3d Dist. No. 12-05-24, 2006-Ohio-

5389, ¶ 6; R.C. 3109.04(D)(1)(b). Consequently, a reviewing court will presume

that the trial court’s decision regarding child custody is correct and will not

reverse absent an abuse of discretion. Id., citing Bechtol v. Bechtol, 49 Ohio St.3d

21, 23 (1990). An abuse of discretion is more than an error of judgment; rather, it

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implies that the trial court’s decision was unreasonable, arbitrary, or capricious.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶15} R.C. 3109.04(D) governs the adoption of shared parenting plans and

provides, in relevant part:

(1)(a)(iii) * * * if only one parent makes a request in the parent’s

pleadings or files a motion and also files a plan, the court in the best

interest of the children may order the other parent to file a plan for

shared parenting in accordance with division (G) of this section. The

court shall review each plan filed to determine if any plan is in the

best interest of the children. If the court determines that one of the

filed plans is in the best interest of the children, the court may

approve the plan. If the court determines that no filed plan is in the

best interest of the children, the court may order each parent to

submit appropriate changes to the parent’s plan or both of the filed

plans to meet the court’s objections or may select one filed plan and

order each parent to submit appropriate changes to the selected plan

to meet the court’s objections. * * *

(b) The approval of a plan under division (D)(1)(a)(ii) or (iii) of this

section is discretionary with the court. The court shall not approve

more than one plan under either division and shall not approve a

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plan under either division unless it determines that the plan is in the

best interest of the children. If the court, under either division, does

not determine that any filed plan or any filed plan with submitted

changes is in the best interest of the children, the court shall not

approve any plan.

plan approved under division (D)(1)(a)(i), (ii), or (iii) of this section

ensure the opportunity for both parents to have frequent and

continuing contact with the child, unless frequent and continuing

contact with any parent would not be in the best interest of the child.

***

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

section * * * 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; * *

parents, siblings, and any other person who may significantly affect

the child’s best interest;

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(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; * * *

(h) * * * whether either parent or any member of the household of

either parent previously has been convicted of or pleaded guilty to a

violation of section 2919.25 of the Revised Code * * * 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 * * * 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;

* * *.

(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 * * * :

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

jointly, with respect to the children; * * *

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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. (Emphasis added).

{¶16} Initially, we note that Nicole has failed to file an appellee’s brief in

this case. Under those circumstances, App.R. 18(C) provides that we “may accept

the appellant’s statement of the facts and issues as correct and reverse the

judgment if the appellant’s brief reasonably appears to sustain such action.”

Nevertheless, upon review of the brief and the record herein, we are not persuaded

that a reversal is warranted in this case.

{¶17} According to the testimony presented at the final divorce hearing,

Dustin was residing in Findlay, Hancock County, Ohio, while Nicole was residing

in Kenton, Hardin County, Ohio. (Oct. 24, 2011 Tr. at 3-5, 12). Dustin testified

that it was in P.J.’s best interest to be “raised by a full time father” and for both

parents to be present for the child. (Id. at 9). Dustin testified that P.J. is currently

attending preschool at First United Methodist in Kenton, Ohio, where P.J. is “very

well liked with the other kids.” (Id. at 11, 52). Dustin testified that he moved to

Findlay shortly after he obtained a job at Cooper Tire, and he began taking courses

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at Owens Community College. (Id. at 13). Dustin testified that he has a two-

bedroom, two-bath apartment in Findlay that he shares with his current girlfriend,

Casey. (Id. at 14-15). Dustin expressed his desire for P.J. to reside with him for

school purposes since Liberty Benton schools were rated better than the Kenton

City schools, where Nicole currently resides. (Id. at 16-22); (P’s Exs. 12-13).

Dustin further testified that he proposed sharing physical custody of P.J. with

Nicole on an every-other-week basis or, alternatively, based upon his work

schedule. (Oct. 24, 2011 Tr. at 16-17). Dustin testified that his communication

with Nicole was “fine,” though he admitted that it was not “fine” when a CPO was

in place earlier. (Id. at 22-23, 32). He testified that he “[tries] to make every effort

possible to communicate,” and Nicole and he would be able to work together to

make mutual decisions for P.J. (Id. at 23).

{¶18} Dustin expressed concern that Nicole was not spending her allotted

visitation time with P.J., since other persons were dropping off P.J. for his

visitation time. (Id. at 23-25). Dustin also expressed concern regarding Nicole’s

mental health since she admitted to cutting herself after he returned from his third

military tour of duty. (Id. at 32-33). Dustin testified that he did have trouble

communicating with Nicole after he returned from his third tour in Iraq, and

Nicole admitted to cheating on him with several men while he was gone. (Id. at

38). Dustin testified that he thought Nicole’s behavior was “very rude” since he

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volunteered for the deployment to support his family, because he was going to be

laid off from International Paper. (Id.). Concerning Nicole’s grandparents, Dustin

testified that “they are some of the nicest people you can meet,” though he

expressed concern that they may be spending time with P.J. that Nicole should be

spending with him, and they may not be able to properly supervise P.J. in light of

their health conditions. (Id. at 39, 42). In particular, Dustin testified that Nicole’s

grandfather has trouble getting around with his knees, and Nicole’s grandmother

has only one leg and is mostly confined to a wheelchair. (Id. at 39). Nevertheless,

Dustin insisted that P.J. should be able to spend time with Nicole’s grandparents.

(Id.). Dustin testified that Nicole resides with her boyfriend, though he is

currently deployed to or is in training for a deployment to Afghanistan. (Id. at 42).

{¶19} Dustin testified that he gave the GAL, Linda Hinton, a list of

witnesses that he requested she interview, but the GAL did not speak to any of

them, except his girlfriend Casey, to his knowledge. (Id. at 43). Dustin testified

that the GAL had only just spoken to Casey yesterday, one day prior to the final

hearing, when she first visited his home. (Id. at 43-44). Dustin testified that the

GAL had previously visited his home in Forest, Ohio. (Id. at 44). On cross-

examination, Dustin testified that he moved to Findlay in March (2011) and

immediately notified the GAL of his change of address, though he did not notify

the court. (Id. at 46-47). He testified that he did not notify Nicole of his change of

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address since he was not permitted to speak to her during that time, but he

indicated that he informed Nicole’s grandparents of his new residence. (Id. at 47-

48). Dustin admitted that there was a CPO in place earlier, though he denied ever

physically harming Nicole. (Id. at 50). When questioned about previously

testifying at the CPO hearing that he and Nicole somehow wrestled to the floor,

Dustin, again, testified “I never physically harmed Nicole.” (Id. at 51). Dustin

testified that, when the CPO was in place, Nicole was not allowed to be present for

the exchange of custody. (Id. at 53-54).

{¶20} Several witnesses testified at the final hearing concerning Dustin’s

positive relationship with P.J. at the final hearing. Josh Cramer, a former co-

worker from International Paper, testified that Dustin had a “very good

relationship” with P.J., and Dustin would often switch shifts with him to spend

more time with P.J. (Id. at 58-60). Larry Lauger, the father of Dustin’s girlfriend,

testified that P.J. is a very polite and well-behaved four-year-old boy that is full of

energy and loves to play. (Id. at 62-65). Lauger testified that Dustin had a “very

good” relationship with P.J., and Dustin is teaching him how to refinish a dresser

in the garage and work outside in the garden. (Id. at 66). Lauger testified that he

has never heard Dustin say anything unkind about Nicole to P.J., and Dustin

discourages P.J. from disrespecting Nicole. (Id. at 68). Rosalee LeVan, Dustin’s

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grandmother, testified that Nicole was a “very good mother,” and Dustin is “an

excellent father,” always spending time with P.J. (Id. at 70-74).

{¶21} Casey Marie Lauger, Dustin’s girlfriend, testified that she has resided

with Dustin in Findlay since March of 2011, and she is employed with the

Hancock County Park District as the living history coordinator. (Id. at 76-78).

Casey testified that she has had good conversations with Nicole and thought she

was “nice.” (Id. at 79-80). Casey testified that Dustin has a “wonderful”

relationship with P.J., and that P.J. is like Dustin’s shadow. (Id. at 81). Casey

testified that she reads P.J. stories; P.J. helps her cook and fold laundry; and, she

plays cars and builds Lincoln Log houses with P.J. (Id. at 83).

{¶22} Nicole testified that P.J. was in her primary care for ten months while

Dustin was in Iraq, and she is generally P.J.’s primary care-giver. (Id. at 87, 95).

She also testified that, after Dustin returned from Iraq, they had problems and a

CPO was granted and in place until June 2011. (Id. at 87-88). Nicole testified that

she agreed to give Dustin more visitation time with P.J. around March or April of

2011, but Dustin never informed her at that time that he moved to Findlay. (Id. at

88). Nicole testified that she was employed at Family Video from June 2010 until

March 2011, when she quit and began working for Guardian; however, she

returned to Family Video in Mid-August of 2011 to move up higher in the

company. (Id. at 89). Nicole testified that she makes $8.50 per hour and works

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between 25 to 30 hours per week, and her schedule is flexible. (Id. at 90). She

testified that she has been training to become an assistant manager at the store,

though there is not a current opening. (Id.). Nicole testified that P.J.’s

pediatrician is located in Kenton, and P.J.’s great-grandparents and cousins reside

in the Kenton area. (Id. at 91-92). According to Nicole, P.J. has a very close

relationship with her grandparents since they baby-sit for her when she is working.

(Id. at 92). Nicole testified that Dustin has not offered her financial support since

he switched jobs. (Id. at 93-94). Nicole testified that P.J.’s schooling has “been a

debate,” and that Dustin wants P.J. to be in Liberty Benton schools since they are

“supposed to be really good.” (Id. a 97-98).

{¶23} Nicole described her relationship with P.J. as “[g]reat,” and she

testified that they eat lunch together after school and work on writing letters

together. (Id. at 98). P.J. loves spending time with her grandma and grandpa,

especially riding in the golf cart, according to Nicole. (Id.). Nicole testified that,

since the CPO has expired, there have not been any problems between Dustin and

her. (Id.). Nicole testified that she has never been invited to Dustin’s home in

Findlay, and that she does not think that Dustin’s proposed shared parenting plan

would be in P.J.’s best interest. (Id. at 100). Nicole testified that the back-and-

forth for P.J. would not promote stability, and P.J. needs one place he can call

“home.” (Id. at 101). Nicole was especially concerned about the shared parenting

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plan when it was time for P.J. to be enrolled in kindergarten and would be required

to start doing homework every night and would need to get ready for school each

morning. (Id. at 104). When asked if she could communicate with Dustin about

P.J., Nicole testified “[n]ot with everything.” (Id. at 101). While Nicole testified

that Dustin has been improving on his communication the last several months,

there “was definitely a problem before then.” (Id.). Nicole also testified that she

still has concerns about Dustin’s temper since P.J. has been throwing temper

tantrums lately, and she wonders how Dustin reacts to those situations. (Id. at

101-102). Nevertheless, Nicole testified that she wants to encourage P.J. to spend

time with Dustin, though it is more difficult given that the distance between their

homes is an hour each direction. (Id. at 102-103). Nicole expressed further

concerns related to the lack of communication between Dustin and her when P.J.

is in Dustin’s custody. (Id. at 104). Nicole testified that she would like to know

what activities P.J. is doing when he is with Dustin. (Id. at 105). Nicole testified

that her boyfriend, Brandon, resides with her but is currently training to be

deployed to Afghanistan. (Id.). Nicole testified that she was not present at some

of the exchanges because she was working. (Id. at 106). She also testified that

Dustin failed to tell her about his new health insurance starting in October 2011.

(Id. at 109).

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{¶24} On cross-examination, Nicole testified that she lives 33 miles from

Dustin, which takes her an hour to drive one-way. (Id. at 109-110). Nicole

testified that she took P.J. to the zoo this past summer without notifying Dustin.

(Id. at 111). Nicole testified that, after Dustin had P.J. for his second week of

vacation, P.J. came back and was having several temper tantrums. (Id. at 113).

She also testified that she was making $13.00 per hour while working for

Guardian. (Id. at 114). Nicole testified that over-night visits during the school

week would not be an option given the distance between the homes. (Id. at 117).

Nicole testified that her grandparents watch P.J. once or twice per week while she

is working. (Id. at 119). Nicole testified that Dustin was present after P.J.’s birth

in June 2007, until his last ten-month tour of duty in 2009 or 2010. (Id. at 120-

121).

{¶25} Rebecca Lynn Smith, Nicole’s friend, testified that she is a “fair”

parent, treating her son appropriately, and she has never seen Nicole lose her

temper with P.J. (Id. a 122-123). Smith testified that she knew Dustin, and a

couple of times, when he was deployed in Iraq, he would call Nicole and yell at

her over the phone to the point she could overhear him. (Id. at 124). Smith

testified that Nicole has a very close relationship with P.J. and is a good parent.

(Id. at 125).

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{¶26} Linda Hinton testified that she was P.J.’s court-appointed GAL. (Id.

at 126). Hinton testified that she did not confer with the persons that Dustin

provided prior to filing her first report, because she did not feel that contacting

those persons was necessary in this case. (Id. at 127). She testified that she talked

with Nicole’s grandfather since he may have had information relating to Dustin

losing his temper when custody exchanged between the parties and information

about the incident leading up to the CPO since he was present when the incident

occurred. (Id. at 128). Hinton testified that she visited the child’s home in Forest,

Ohio, but was unable to make it to Findlay until the night before the final hearing.

(Id.). Hinton testified that she had not visited Dustin’s home prior to her first

report filed in April, and she talked to Dustin’s girlfriend, Casey, the first time one

day prior to the final hearing. (Id. at 128-129). Hinton testified that she knew that

Casey worked with children at her place of employment, the Hancock County

Park District, and she was sure the county agency would not have placed her in

that position if they had concerns about her being around children. (Id. at 129).

Hinton testified that Casey was “lovely” and would be “wonderful with children.”

(Id.). When asked about what other witnesses from Nicole’s list she spoke with,

Hinton testified that she spoke to Nicole’s grandfather, Zach Parshall, a Hardin

County Community Corrections Officer at the time, and Mark Schwemer, who

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both knew Nicole’s boyfriend, Brandon. (Id. at 130). Hinton testified that she

spoke with Brandon when she was on a home visit. (Id.).

{¶27} Hinton testified that Dustin is a good influence on P.J., and Dustin

has a close relationship with him. (Id. at 130-131). Hinton further testified:

And to be quite honest this is a difficult piece from a Guardian

perspective because I have two parents, who equally love their son,

their son equally loves them. They’re both good influences.

However, they’re not working together in a way that you would

hope that they would.

(Id. at 131). Hinton testified that she was not impressed with Dustin’s

involvement with P.J. since, in her experience, often dads or moms

overcompensate to try to be the “fun parent” for the child’s visitations. (Id.).

Hinton recommended that P.J. have visitation with Dustin when Dustin was not

working during the week and every-other weekend. (Id. at 132). Hinton did not

think week to week visitation would be in P.J.’s best interest based on her

experience in other cases, and given the distance between the parties. (Id. at 133).

Hinton testified that she thought P.J. could excel in either school district since his

parents are highly involved, though she recommended that Nicole be named the

residential parent for school purposes since Nicole has been in that capacity

already, and P.J. is used to being in Kenton. (Id. at 135).

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{¶28} Hinton testified that, in her first report, she indicated that she was

troubled by the parties’ inability to communicate. (Id. at 135-136). Hinton

testified that, when she filed the initial report in April, the parties could not

communicate to some degree because of the CPO, and that now she does see at

least an attempt at communication, though she does not think it is adequate. (Id. at

136). For example, Hinton testified that Dustin is telling Nicole that P.J. will go to

Liberty Benton School District instead of talking about the issue. (Id.). Hinton

also noted that Dustin was not communicating with Nicole about long distance

trips that he was taking with P.J. when such information might be helpful in case

of a medical emergency. (Id.). Hinton further testified that the parties were just

not communicating, though she was “hopeful that maybe once the attorneys are

gone, and I’m gone, and the whole court process is gone, that it will get better.

That it will just get better with time.” (Id.).

{¶29} Upon review of the evidence presented, we cannot find that the trial

court abused its discretion by denying Dustin’s motion for shared parenting. The

trial court’s conclusion that a shared parenting plan was not in P.J.’s best interest

is supported by the record. To begin with, there was an incident of physical

violence between Dustin and Nicole giving rise to a CPO. R.C. 3109.04(F)(1)(h),

(F)(2)(c). Nicole has been serving as P.J.’s primary care-giver. R.C.

3109.04(F)(1)(c). P.J. has been living in Kenton, where he attended preschool and

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developed friendships with other children, and, more importantly, where he

developed a close bond with his great-grandparents, who care for him while

Nicole is working. R.C. 3109.04(F)(1)(c), (d). P.J.’s pediatrician is also located

in Kenton. R.C. 3109.04(F)(1)(e). Both Nicole and the GAL expressed concerns

about adopting a shared parenting plan since the parties were still not

communicating effectively with one another at the time of the final hearing. R.C.

3109.04(F)(2)(a), (e). There are also the more practical concerns about

implementing shared parenting when P.J. is enrolled in school full-time, especially

given the distance between the parties. R.C. 3109.04(F)(2)(d). In light of these

facts, we cannot conclude that the trial court abused its discretion by failing to

adopt Dustin’s shared parenting plan.

{¶30} We are also not persuaded that the trial court abused its discretion by

refusing to allow Dustin to submit amendments to his shared parenting plan. R.C.

3109.04(D)(1)(a)(iii) provides that the trial court “may” allow the parties to submit

amendments to their proposed shared parenting plan if the trial court determines

that the originally proposed plan is not in the child’s best interest. Many of the

concerns in this case, however, cannot be addressed by amending the shared

parenting plan. Dustin and Nicole’s inability to communicate effectively and

respectfully with one another is something that can only be resolved between

themselves. Amending the shared parenting plan will also not address the

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concerns about the past physical violence nor the practical difficulties created by

the physical distance between the parties. Nor would amending the shared

parenting plan change the fact that Nicole has been P.J.’s primary care-giver and

P.J. has developed a connection with family and friends in the Kenton area. Since

many of the issues in this case cannot be resolved by simply amending the shared

parenting plan, the trial court did not abuse its discretion by denying the

amendments.

{¶31} Dustin’s first and second assignments of error are, therefore,

overruled.

Assignment of Error No. III

The trial court committed an error of law and abused its
discretion in granting any significant weight to the opinion of the
guardian ad litem.

{¶32} In his third assignment of error, Dustin argues that the trial court

abused its discretion in granting any significant weight to the GAL’s opinion. In

particular, Dustin argues that the GAL failed to meet with individuals he

identified, who would have had relevant knowledge regarding issues of the case,

as she was required under Sup.R. 48(D)(13)(d).

{¶33} This assignment of error lacks merit. To begin with, the trial court’s

opinion does not indicate that it placed “significant weight” upon the GAL’s

opinion; but rather, that the trial court considered the GAL’s opinion in

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combination with all the evidence presented at the hearing. Aside from that, the

Rules of Superintendence “do not have the same force as a statute or case law, but

are rather purely internal housekeeping rules which do not create substantive

rights in individuals or procedural law.” Elson v. Plokhooy, 3d Dist. No. 17-10-

24, 2011-Ohio-3009, ¶ 40, citations omitted. Consequently, Dustin’s third

assignment of error fails to raise any reversible error of law.

{¶34} Dustin’s third assignment of error is, therefore, overruled.

{¶35} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ROGERS, J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr

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