[Cite as Montei v. Montei,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

GRETCHEN M. MONTEI : nka WELLS : Plaintiff-Appellant C.A. CASE NO. 2013 CA 24

v. : T.C. NO. 06DR568

JAMIE H. MONTEI : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellee :

:

..........

OPINION

Rendered on the 6th day of December , 2013.

..........

VALERIE JUERGENS WILT, Atty. Reg. No. 040413, 333 N. Limestone Street, Suite 104, Springfield, Ohio 45503 Attorney for Plaintiff-Appellant

BEVERLY FARLOW, Atty. Reg. No. 0029810, 270 Bradenton Avenue, Suite 100, Dublin, Ohio 43017 Attorney for Defendant-Appellee

..........

FROELICH, J.

{¶ 1} Gretchen Montei (nka Wells) appeals from a judgment of the Clark 2

County Court of Common Pleas, Domestic Relations Division, which granted Jamie

Montei’s motion to modify the parties’ shared parenting agreement and, on the basis of that

change, terminated Montei’s child support obligation.

{¶ 2} The judgment of the trial court will be affirmed in part and reversed in part.

The judgment will be affirmed to the extent that it found a change of circumstances and that

the child’s best interest would be served by a modification of the shared parenting

agreement. The judgment of the trial court will be reversed to the extent that the modified

shared parenting plan did not address all of the statutory factors required of a shared

parenting plan and incorporated an incomplete agreement of the parties; the matter is

remanded for further consideration of the terms of the modified shared parenting plan. Mr.

Montei’s motion for a stay of the appellate proceedings is denied.

Facts and Procedural History

{¶ 3} The parties were divorced in August 2007, when their daughter was three

years old. At the time of the divorce, they agreed to a shared parenting plan, which

provided that Ms. Wells was the residential parent for school purposes and provided

parenting time to Mr. Montei. Under this agreement, the child spent four days with Mr.

Montei every other week, and Mr. Montei was ordered to pay child support. The agreement

contained additional provisions regarding discipline, parental conduct, extracurricular

activities, holidays, telephone access, the right of first refusal for babysitting, health

insurance, and the like.

{¶ 4} On November 24, 2010, Mr. Montei filed motions to hold Ms. Wells in 3

contempt and to modify the shared parenting plan. Both motions were based on the

following alleged violations of the shared parenting plan: 1) use of alcohol or drugs in the

presence of the child, 2) physical discipline of the child, and 3) denial of right of first refusal

for babysitting throughout the summer of 2009, while Ms. Wells was working and Mr.

Montei was not working. Originally, Mr. Montei’s proposed modification was to switch the

parties’ roles and parenting times, but later in the proceedings, Mr. Montei proposed that the

parties divide their parenting time equally, week by week.

{¶ 5} In April 2011, while Mr. Montei’s motions were pending, the parties and

their attorneys negotiated about the parenting issues and executed a modified shared

parenting agreement, which was presented to the court as Defendant’s Exhibit 6. This plan

called for the parties to alternate weekly parenting time and eliminated Mr. Montei’s child

support obligation; it also named Mr. Montei as the residential parent for school placement.

Both parties signed the agreement, but Ms. Wells subsequently disavowed her alleged

agreement to the terms of the modified shared parenting plan.

{¶ 6} In July 2011, the guardian ad litem filed a report in which she stated that

she did not see any need for a change in parenting time, but that she believed the

continuation of shared parenting was inadvisable, because the parties did not appear to be

able to work together. She also recommended that they end the “right of first refusal” for

babysitting, because it was “a constant cause of stress and argument between the parties.”

{¶ 7} In March 2012, Ms. Wells filed a motion to modify parental rights and

responsibilities, which sought to terminate shared parenting and have her (Ms. Wells)

designated as the residential parent and legal custodian, because of Ms. Wells’s concerns 4

about her daughter’s “well being and safety” at Mr. Montei’s home. Specifically, Ms.

Wells cited Mr. Montei’s “pornography and sexual habits,” violence, negativity toward Ms.

Wells, and concerns about the parenting abilities of Mr. Montei’s live-in girlfriend.

{¶ 8} A hearing was held on Mr. Montei’s and Ms. Wells’s motions on eight

dates between August 2011 and January 2013. During this lengthy process, the parties filed

various additional motions, and the issues before the court changed. By the time the

hearings ended, Mr. Montei sought to enforce the parties’ modified shared parenting

agreement of April 2011 (rather than to modify otherwise the shared parenting plan, as

requested in his original motion), and Ms. Wells sought to terminate shared parenting. In

February 2013, the trial court granted Mr. Montei’s motion to modify shared parenting by

enforcing the parties’ modified shared parenting agreement of April 2011, and it overruled

Ms. Wells’s motion to terminate shared parenting. In keeping with the modified shared

parenting agreement, the court also terminated Mr. Montei’s child support obligation and

designated him as the residential parent for school purposes. It ordered the parties to pay

their own attorney fees.

{¶ 9} Ms. Wells raised five assignments of error on appeal from the trial court’s

judgment. Mr. Montei did not respond with a brief of his own.

{¶ 10} After reviewing Ms. Wells’s arguments and the record of the case, we

noted that the trial court’s judgment, which sought to incorporate and attach the 2011

agreement by the parties as to the modification of shared parenting, was apparently missing

some pages of the agreement. In a Decision & Entry dated October 9, 2013, we remanded

the matter to the trial court with the following instruction: if all of the pages of the parties’ 5

agreement were before the court and were reviewed by the court before it rendered its

judgment, the court should correct its judgment by means of a nunc pro tunc entry; if all of

the pages were not before the court when it entered its decision, the court “may take no

further action, except by agreement of the parties to incorporate the missing pages.” In the

latter circumstance, where the missing pages were omitted from the record entirely, we

indicated that we would review Ms. Wells’s assignments of error on the record before us.

{¶ 11} On November 5, 2013, Mr. Montei filed a motion with this court for a stay

of proceedings “for the purpose of correcting the record as transmitted from the trial court.”

The motion asserts that the trial court held a hearing on October 31, 2013, to address the

issue of the missing pages, at which the court “suggested that the parties obtain a stay of

appellate proceedings so that a motion pursuant to Ohio Civil Rule 60(B) could be filed with

the trial court so as to allow the court to correct the record with a full and accurate copy” of

the 2011 shared parenting agreement that it had intended to incorporate into its judgment.

On November 6, Ms. Wells filed a motion in opposition to Mr. Montei’s request for a stay.

{¶ 12} On November 8, 2013, the trial court filed an entry in which it

acknowledged our request for additional information and that a hearing had been held on

October 31, 2013, but indicated that it would “await the Appellate Court’s ruling” on Mr.

Montei’s motion for a stay before addressing the question posed in our remand. Thus, the

trial court did not respond directly to our request that it clarify the record by one of the

means discussed above.

{¶ 13} App.R. 7(A) provides for “a stay of the judgment or order of a trial court

pending appeal * * *.” Here, however, Mr. Montei has moved “for an order staying the 6

appellate proceedings,” so App.R. 7 is not applicable. He also references App.R. 9(E),

which provides that “differences in the trial record shall be submitted to the trial court,” and

there is nothing on the trial court’s docket, except its decision on our remand, which

addresses App.R. 9(E).

{¶ 14} A direct appeal divests the trial court of jurisdiction to rule on a Civ.R.

60(B) motion, such as the parties reference in their memoranda. “Jurisdiction may be

conferred on the trial court only through an order by the reviewing court remanding the

matter for consideration of the Civ.R. 60(B) motion.” Howard v. Catholic Social Serv. of

Cuyahoga Cty, Inc.,

,

(1994), .

{¶ 15} Mr. Montei’s request for a stay, if granted, would have the effect of

suspending the appeal. But without further action of this court (for which no motion has

been made), it would not confer on the trial court jurisdiction to consider a Civ.R. 60(B)

motion.1 Even if we were to consider the motion as a motion for a limited remand, there is

no Civ.R. 60(B) motion pending in the trial court. In other words, a stay would not serve

any useful purpose or, particularly, the purpose that Mr. Montei thinks it would serve.

Moreover, it would further delay a decision in this expedited appeal. Thus, Mr. Montei’s

motion for a stay is DENIED. Insofar as the trial court has not responded to the question

posed in our remand, we will decide the appeal on the record before us.

{¶ 16} Ms. Wells’s first assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

DECLARED DEFENDANT’S EXHIBIT “6” A CONTRACT AND BY

1 We express no opinion as to whether Civ.R. 60(B) relief would be appropriate on these facts. 7

ADOPTING AN INCOMPLETE SHARED PARENTING ORDER.

{¶ 17} Ms. Wells contends that the trial court erred in concluding that the parties

had agreed to adopt Defendant’s Exhibit 6 as their modified shared parenting agreement;

although Ms. Wells admits that her signature was on the document, she denies that she

agreed to its terms. Ms. Wells also contends that the court erred in adopting Exhibit 6

because it failed to address all of the factors required of a shared parenting agreement by

R.C. 3109.02(G), such as parenting time on holidays.

{¶ 18} Ms. Wells’s first argument under this assignment is that the trial court erred

in deciding to enforce the parties’ agreement to the modified shared parenting plan; she

challenges the trial court’s conclusion that she agreed to the terms of the shared parenting

agreement that she signed in April 2011.

{¶ 19} At the hearing, Mr. Montei testified that he believed that the parties had

reached an agreement to change their shared parenting arrangement in April 2011, when Ms.

Wells signed the modified shared parenting agreement. For her part, Ms. Wells admitted

that she had signed the agreement, but stated that “I never came to an agreement.” She

claimed she had been told by her attorney that she had to sign but that the agreement would

not be binding. Ms. Wells’s former attorney, who represented her in the divorce and

through the spring of 2011, testified that she (the attorney) had not been interested in

representing Ms. Wells in any litigation of the shared parenting agreement, that she informed

Ms. Wells of this fact, and that all of their discussions had been “in aid of negotiating a

settlement.” The attorney also denied that she had told Ms. Wells that Ms. Wells had to

sign the modified shared parenting agreement or that it “wouldn’t matter” if she did sign it, 8

because nothing would be filed.

{¶ 20} Mr. Montei also testified that he believed he and Ms. Wells could cooperate

and make decisions jointly for their daughter’s benefit, as they had sometimes done in the

past. He stated that their child was close to her extended families and to the new spouses,

significant others, and siblings in her parents’ and her life. Ms. Wells expressed less

optimism about the parties’ abilities to cooperate, but agreed that the child was their top

priority.

{¶ 21} The trial court found that the parties, through their respective counsel, had

negotiated the terms of a modified shared parenting agreement, which was executed in the

spring of 2011. The central provisions of this agreement were that the parties would

alternate weekly parenting time and, due to the equalization of the child’s time with each

parent, neither party would be required to pay child support to the other. The court noted

that the modified shared parenting agreement had “not been adopted by this Court as a Final

Order because Ms. Wells subsequently changed her mind and decided she no longer agreed

to its terms.” The court continued:

The credible evidence in this case suggests that the aforementioned

modified Shared Parenting Plan which was executed by the parties was much

more than an offer of settlement or some other form of negotiations as

claimed by Ms. Wells. That document is, in fact, a contract between the

parties, supported by valid consideration, and as such, it serves as credible

evidence of the parties’ intentions as of the spring of 2011 when it was

executed. As such, it * * * serves as evidence to prove that, as of the spring 9

of 2011, both of the parties agreed that it was in their daughter’s best interest

to alternate weekly parenting time with her and that neither party pay child

support to the other.

Since the time that she executed that document, Ms. Wells has

changed her mind and now contends that it is no longer in [the child’s]

interest to alternate weeks or, for that matter, for the parties to comply with

the remaining terms of Defendant’s Exhibit 6, which she previously agreed

to, despite her contentions to the contrary.

It is worth noting that Ms. Wells did not file her Motion seeking to

terminate the prior shared parenting plan and grant her sole custody until

March 7, 2012, approximately 15 months after Mr. Montei filed his motion to

modify the original Shared Parenting Plan. Ms. Wells’ Motion was also not

filed until after the Guardian Ad Litem herein recommended that shared

parenting be terminated. Ms. Wells had legal representation throughout the

course of this case and she could have, at any time, filed to terminate the prior

shared parenting arrangement and grant her sole custody if she believed that

shared parenting between the parties was no longer working and not in [the

child’s] best interest.

The credible evidence in this case suggests that the reason why Ms.

Wells did not previously file to terminate shared parenting and grant her sole

custody was because she agreed at that time with the terms of the modified

Shared Parenting Plan which she signed in the spring of 2011 (Defendant’s 10

Exhibit 6), despite her contentions to the contrary.

{¶ 22} It is well established that if parties voluntarily enter into an agreement, the

agreement becomes a valid and binding contract between the parties. Phillips v. Phillips, 5th

Dist. Stark Nos. 2004CA105 and 2004CA005,

. “[A] settlement

agreement is a contract designed to terminate a claim by preventing or ending litigation and *

* * such agreements are valid and enforceable by either party.” (Citations omitted.) Kilroy v.

Peters, 2d Dist. Montgomery No. 25547,

, citing Continental W.

Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc.,

,

(1996). Where the agreement is made outside the presence of the court, the court

may properly sign a journal entry reflecting the settlement agreement in the absence of any

factual dispute concerning the agreement.

, citing Haas v. Bauer,

,

,

(9th Dist.). When there is a factual dispute,

the trial court must conduct an evidentiary hearing to adjudicate the issues in dispute. Id. at

¶ 27.

{¶ 23} Because settlement agreements are governed by contract law, an appellate

court must determine whether the trial court’s decision to enforce a settlement agreement is

based on an erroneous standard or a misconstruction of the law. Lepole v. Long John

Silver’s, 11th Dist. Portage No. 2003-P-0020,

, quoting Continental W.

Condominium Owners,

;

. The standard of review is

whether the trial court erred as a matter of law in deciding to enforce (or not enforce) the

settlement agreement. Ohio Title Corp. v. Pingue, 10th Dist. Franklin No. 10AP-010,

, citing Continental W. Condominium Owners at 502. [Cite as Montei v. Montei,

.] {¶ 24} The trial court considered the parties’ conflicting testimony about whether

they had reached an agreement about modifying their shared parenting plan and their

understandings of the effect of signing the modified agreement. The court also considered

Ms. Wells’s attorney’s testimony about what she had (or had not) told Ms. Wells about the

effect of signing the agreement. Finally, the court considered the circumstantial evidence

embodied in the record, particularly the lengthy delay between the signing of the modified

agreement and Ms. Wells’s motion to terminate shared parenting, concluding that this delay

undercut Ms. Wells’s testimony that shared parenting between the parties was unworkable

and not in their child’s best interest. The court expressly stated that it did not find Ms.

Wells’s testimony concerning her execution of the modified shared parenting plan to be

credible. Based on this evidence, the trial court concluded that Ms. Wells had “changed her

mind” about the agreement, rejecting her argument that she had never agreed to its terms.

The trial court did not abuse its discretion in reaching this conclusion.

{¶ 25} Beyond its conclusion that the parties had entered into a modified shared

parenting agreement, the trial court conducted the statutory analysis of whether a

modification of the shared parenting agreement was warranted. Such an analysis was

appropriate since an agreement involving custody, as opposed to, for example, a real estate

transaction, requires consideration of the best interest of the child and whether a modification

is permitted as a matter of law.

{¶ 26} A court may not modify the designation of a residential parent and legal

custodian of a child in a shared parenting decree without first determining that a “change in

circumstances” has occurred and that the modification is in the best interest of the child.

Fisher v. Hasenjager,

,

,

; Sutton v. 12

Sutton, 2d Dist. Montgomery No. 24108,

. 2 Such findings are

explicitly compelled by R.C. 3109.04(E)(1)(a), which provides:

The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that have

arisen since the prior decree or that were unknown to the court at the time of

the prior decree, that a change has occurred in the circumstances of the child,

the child’s residential parent, or either of the parents subject to a shared

parenting decree, and that the modification is necessary to serve the best

interest of the child. In applying these standards, the court shall retain the

residential parent designated by the prior decree or the prior shared parenting

decree, unless a modification is in the best interest of the child and one of the

following applies:

(i) The residential parent agrees to a change in the residential parent or

both parents under a shared parenting decree agree to a change in the

designation of residential parent.

(ii) The child, with the consent of the residential parent or of both

parents under a shared parenting decree, has been integrated into the family of

the person seeking to become the residential parent.

2 We have previously followed Hasenjager’s holding that a modification of the residential parent in a shared parenting decree requires a finding of a change of circumstances as well as a finding that it is in the child’s best interest, Gillum v. Gillum 2d Dist. Montgomery No. 24401,

(interpreting R.C. 3109.04(E)(1)), whereas a termination of shared parenting requires only a best interest analysis. Toler v. Toler, 2d Dist. Clark No. 10-CA-69,

, citing Beismann v. Beismann, 2d Dist. Montgomery No. 22323,

(interpreting R.C. 3109.04(E)(2)). [Cite as Montei v. Montei,

.] (iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child.

{¶ 27} In determining the best interest of a child, the court must consider all

relevant factors, including, but not limited to: the wishes of the child’s parents regarding the

child’s care; if the court has interviewed the child in chambers, the wishes and concerns of

the child as expressed to the court; 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; the child’s adjustment to the child’s home, school, and community; the mental and

physical health of all persons involved in the situation; the parent more likely to honor and

facilitate court-approved parenting time or visitation and companionship rights; 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;

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 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; and whether either parent has established a residence, or is

planning to establish a residence, outside this state. R.C. 3109.04(F)(1).

{¶ 28} A trial court enjoys broad discretion when determining the appropriate

allocation of parental rights and responsibilities. Miller v. Miller,

,

(1988). Absent an abuse of that discretion, a reviewing court will affirm the

custody determination of the trial court.

Abuse of discretion is a term used to indicate

that a trial court’s decision is unreasonable, arbitrary or unconscionable. Blakemore v. 14

Blakemore

,

(1983).

{¶ 29} The trial court found that there had been a change of circumstances “of

substance” in the lives of both parents and the child since the divorce was granted and the

original shared parenting plan was implemented. Specifically, the court noted that both

parents have had additional children and now reside with a significant other, so “the

composition of each of their families have changed significantly.”

{¶ 30} With respect to the child’s best interest, the court noted that, during an in

camera interview with the court, the child expressed a desire to alternate weeks between her

parents. The court further found that the child had a loving relationship with both parents, as

well as their significant others, her siblings, and extended families. The court found that

both parents provided appropriate care and living environments for their child, that the child

excelled academically, and that some past behavioral issues (possibly rooted in anxiety) had

been substantially resolved. The child was well-adjusted “to her homes at both parents[’]

houses, her school and her community.” Despite some allegations to the contrary at the

hearing, the court found that neither parent had “continuously and willfully denied the other

parenting time” and that Mr. Montei was in “substantial compliance” with his child support

obligation.

{¶ 31} The trial court further found that the parties “have the ability to cooperate

and make decisions jointly with respect to [their daughter] although it is true that they do not

always do so. * * * [T]hey clearly can and most probably will cooperate and make decisions

for their daughter’s benefit.” The court concluded that “it is not too much to ask them [the

parties] to continue to work together for their daughter’s benefit.” Thus, the court found that 15

continuing the shared parenting arrangement, as modified by the parties’ spring 2011

agreement, was in their daughter’s best interest.

{¶ 32} The trial court did not abuse its discretion in concluding that there had been

a change of circumstances and that a modification of the shared parenting plan was in the

child’s best interest.

{¶ 33} We note that the trial court did not expressly address R.C 3109.04(E)(1)(a),

which requires the court to retain the residential parent designated by the prior decree or the

prior shared parenting agreement, unless a modification is in the best interest of the child and

one of three enumerated factors applies. One of the enumerated factors is that “both parents

under a shared parenting decree agree to a change in the designation of residential parent.”

The trial court’s conclusion that the parties had agreed to the terms set forth in the modified

shared parenting agreement, which designated Mr. Montei as the residential parent for school

purposes, satisfied this requirement.

{¶ 34} In sum, we conclude that the trial court did not err in concluding that the

parties had entered into an agreement to modify shared parenting in the spring of 2011, or in

concluding that a change of circumstances and the best interest of the child supported the

modification.

{¶ 35} Ms. Wells’s second argument under this assignment of error is that the

shared parenting order adopted by the court was “incomplete,” and thus failed to satisfy the

requirements of R.C. 3109.04(G). This section provides, in pertinent part, that “[a] plan for

shared parenting shall include provisions covering all factors that are relevant to the care of

the children, including, but not limited to, provisions covering factors such as physical living 16

arrangements, child support obligations, provision for the children’s medical and dental care,

school placement, and the parent with which the children will be physically located during

legal holidays, school holidays, and other days of special importance.”

{¶ 36} Ms. Wells claims that the modified shared parenting agreement is

unenforceable because it does not address all of the issues described in R.C. 3109.04(G).

Ms. Wells suggests in her brief that the trial court had not “actually reviewed the purported

agreement of the parties,” because if it had, it would have seen that the plan was incomplete.

She also contends that the trial court erred in deviating from the calculations set forth in an

attached child support worksheet, without making findings to support such a deviation.

{¶ 37} In the trial court, when Mr. Montei presented Exhibit 6 (the parties’ 2011

agreement to modify the shared parenting plan), pages 7, 10, 11, 13 and 14 were missing,

which included the page on which Ms. Wells had signed. Mr. Montei supplemented the

exhibit to include pages 13 and 14, including Ms. Wells’s signature, but pages 7, 10, and 11

were not made a part of the record. When the court attached the agreement to its judgment

and incorporated it as “Exhibit A,” pages 7, 10, and 11 were still missing. As discussed

above, we sought clarification from the trial court about whether the pages were omitted from

the record entirely or omitted only from some of the exhibits and from the trial court’s

judgment that was transmitted to this court. The trial court did not respond to our request,

and we will proceed on the usual assumption that the complete record is before us.

{¶ 38} The content of pages 7, 10, and 11 is not entirely unclear. Page 7

presumably included a chart restating the verbal agreement (contained on page 6) as to which

parent will get each holiday, as designated by odd- and even-numbered years. Page 7 likely 17

included additional provisions for school holidays and vacations. The parties do not seem to

have disagreed as to any of these provisions. The content of pages 10 and 11 is more

elusive, but related at least in part to health care costs (the continuation of a section that

began on page 8). Although page 8 states that no child support shall be paid and that “both

parties will pay any costs incurred * * * during the time [their daughter] is in their care * *

*,” pages 10 and 11 arguably contained language regarding child support, such as the manner

of payment and notification requirements when a child becomes emancipated or otherwise

ineligible for support.

{¶ 39} Ms. Wells correctly points out that some of the statutory factors required by

R.C. 3109.04(G) to be included in a shared parenting agreement are omitted or not fully

addressed in the agreement adopted by the trial court, because they apparently were addressed

on the missing pages. For example, a chart delineating the division of holidays and

birthdays was contained on page 7, which is missing, so the manner in which this time was

distributed cannot be determined from the record. (School holidays were not addressed in

the original shared parenting plan, but the child was not yet of school-age at that time.) Two

pages of provisions ostensibly related, at least in part, to health care and changes in child

support, are also omitted (pages 10 and 11). Other statutory factors, such as the physical

living arrangements, amount of child support, and school placement, are addressed in the

portions of the agreement that are attached to the judgment entry.

{¶ 40} Ms. Wells urges us to conclude that the agreement could not or should not

have been adopted by the trial court because of the missing provisions. We agree. The trial

court abused its discretion in adopting a shared parenting plan that did not address all of the 18

statutory factors required by R.C. 3109.04(G). Moreover, if a court is to adopt and enforce

an agreement between the parties, it must adopt all of its provisions and incorporate the entire

agreement into its judgment.

{¶ 41} Finally, Ms. Wells argues that, by incorporating the provision of the

modified settlement agreement by which Mr. Montei was not required to pay child support,

the court deviated from the child support worksheet without entering any finding to support

such a deviation. While such findings are generally required when a court deviates from the

specified formula in arriving at a child support calculation, we do not believe that such

findings are always required where the parties have agreed to eliminate child support.

However, again, in dealing with a child’s best interest, the trial court must address directly

why it is appropriate to deviate from the child support worksheet, or to cite evidence

presented by the parties as to why they have eliminated the child support obligation.

{¶ 42} The first assignment of error is overruled in part and sustained in part. The

matter will be remanded to the trial court for further consideration of the statutory factors that

are not addressed in the parties’ agreement, as well as for further consideration of the missing

pages of the shared parenting agreement that the court sought to incorporate, in its entirety,

into its judgment. Based on its consideration of these issues, the court is instructed to craft

or adopt a complete, modified shared parenting plan.

{¶ 43} The second assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW BY SHIFTING

THE BURDEN OF PROOF TO [MS. WELLS] TO PROVE THAT

DEFENDANT’S EXHIBIT “6” WAS NOT IN THE CHILD’S BEST 19

INTEREST.

{¶ 44} Ms. Wells claims that the burden of proof in any modification of shared

parenting is on the movant and that, in adopting the modified shared parenting plan, the trial

court improperly “shifted” this burden from Mr. Montei to her, requiring her to demonstrate

why the parties’ modified shared parenting plan was not in the child’s best interest.

{¶ 45} The trial court found that the parties had agreed to the modified shared

parenting plan, notwithstanding Ms. Wells’s subsequent assertions that she had not agreed.

The court decided to enforce the modified agreement after finding that there had been a

change of circumstances and that the agreement was in the best interest of the child. The

record does not support Ms. Wells’s assertion that the court proceeded as if Ms. Wells bore

the burden of proof on these issues.

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

{¶ 47} The third assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED

THE RESIDENTIAL PARENT FOR SCHOOL PURPOSES. THERE WAS

NO EVIDENCE TO DEMONSTRATE A SUBSTANTIAL CHANGE IN

CIRCUMSTANCES OR THAT THE MODIFICATION OF THE

RESIDENTIAL PARENT WAS IN THE CHILD’S BEST INTEREST.

{¶ 48} Ms. Wells contends that the trial court erred in modifying the residential

parent for school purposes. She contends that such a change was not in the child’s best

interest and that no change of circumstances was demonstrated.

{¶ 49} Again, we note that the trial court’s decisions with respect to modification of 20

shared parenting in this case were based on its conclusion that Ms. Wells had agreed to the

changes, as well as its finding that the statutory factors necessary for such a modification had

been satisfied. Ms. Wells’s argument is belied by the trial court’s finding that she agreed to

the changes and that her testimony to the contrary lacked credibility. We also note that the

agreement of the other parent, along with a finding of best interest, is one basis for changing

the designation of residential parent. See R.C. 3109.04(E)(1)(a) and ¶ 26, supra.

{¶ 50} Although we stated in our discussion of the first assignment of error that the

trial court erred in adopting or incorporating a shared parenting agreement that did not

address all of the statutory factors and was missing pages, this finding did not disturb the trial

court’s conclusion that Ms. Wells had agreed to the modification.

{¶ 51} The third assignment of error is overruled.

{¶ 52} Ms. Wells’ fourth assignment of error states:

THE COURT’S DECISION TO RETAIN SHARED PARENTING WAS

CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

THERE WAS NO EVIDENCE TO SUPPORT THE COURT’S FINDINGS

ON SIGNIFICANT SHARED PARENTING STATUTORY FACTORS.

SHARED PARENTING SHOULD HAVE BEEN TERMINATED.

{¶ 53} Ms. Wells asserts that there was no evidence that the parties were able to

cooperate and make decisions jointly for the child or to encourage a positive relationship with

the other parent. On this basis, she contends that the court’s decision to continue shared

parenting was against the manifest weight of the evidence.

{¶ 54} The evidence established that there was much animosity between Mr. 21

Montei and Ms. Wells. Both had leveled numerous allegations against the other. For

example, Ms. Wells and witnesses on her behalf testified that Mr. Montei had used

pornography, had been fired from a job for having pornography on his computer, had

behaved inappropriately at the child’s soccer games, that his house and his mother’s house

(where the child spent time) were dirty and foul-smelling, that the son of Mr. Montei’s live-in

girlfriend had behavioral problems which could adversely affect the child, that Mr. Montei

had caused Ms. Wells to miss important events in the child’s life by failing to inform her of

those events, and that Mr. Montei had coached their daughter about her statements to the

court and had offered her a trip to Disney World if he prevailed in the custody proceedings.

{¶ 55} Mr. Montei alleged that Ms. Wells used marijuana, inflicted corporal

punishment on the child or otherwise allowed her to sustain injuries at Ms. Wells’s home,

that Ms. Wells’s husband keeps unsecured guns in their home, that Ms. Wells had sometimes

behaved violently toward him during their marriage, that she had, on occasion, not seemed

“sober” or “coherent” when he picked up their daughter, and that their daughter’s past

behavioral problems were rooted in problems at Ms. Wells’s house. Both parties alleged

that the other failed to foster a positive relationship with the other parent, and Mr. Montei

alleged that Ms. Wells did not contact him first when she needed a babysitter, as required by

their original agreement.

{¶ 56} The trial court concluded that most of these allegations were unfounded,

overblown, or “not insurmountable,” and that the parties would likely be able to put their

difficulties behind them when the litigation ended. It found that they “have the ability to

cooperate and make decisions jointly with respect to [the child] although it is true that they 22

do not always do so”; “they clearly can and most probably will cooperate and make decisions

for their daughter’s benefit.” The court further stated that both parties “have a dedicated

love for their daughter and a commitment to her future,” and that both were very involved in

her life. The court found that the parties had “misconceptions * * * concerning each other,

significant others or extended family members,” and that the parties should and would be

able to “get beyond” these misconceptions in the near future, “perhaps with some assistance,

if necessary.” The court believed that the parties would eventually “be glad that they

continued to share in the parenting responsibilities” while their daughter was a minor,

because “that time passes quickly.” “While it is always easier for only one person to make

all decisions, that is not always the best and it is not the best thing for [their daughter] at this

point in her life.” The court expressed its confidence that the parties would do what was

best for their daughter.

{¶ 57} We or other courts may have reached a different conclusion about whether

Mr. Montei and Ms. Wells could cooperate enough to make shared parenting workable under

the circumstances presented in this case. However, the trial court was well aware of the

challenges that the parties had faced in the past and the tensions between them. It

nonetheless concluded that the parties’ commitment to their daughter would allow them to

work together when the litigation was behind them, and that it would be in their daughter’s

best interest for them to do so. We cannot conclude that the trial court abused its discretion

in determining that shared parenting was still feasible for this family.

{¶ 58} The fourth assignment of error is overruled.

{¶ 59} Ms. Wells’s fifth assignment of error states: 23

THE COURT ERRED BY MODIFYING A SHARED PARENTING PLAN

WHEN THE EVIDENCE DID NOT DEMONSTRATE IT WAS IN THE

CHILD’S BEST INTEREST TO DO SO.

{¶ 60} Ms. Wells’s argument under this assignment of error repeats her arguments,

under other assignments, that it was not in the child’s best interest to modify the shared

parenting plan and that the “only basis” for doing so was the court’s allegedly inaccurate

conclusion that the parties had agreed to its terms. She also highlights a single statement in

the court’s decision, indicating that the court found Mr. Montei to be “more opinionated and

less flexible” than Ms. Wells, although “equally committed” to their daughter. Based on that

statement and further discussions of the parties’ past difficulties with parenting issues, Ms.

Wells concludes that there were “no findings to demonstrate that it was in the child’s best

interest to modify” the prior order.

{¶ 61} The trial court’s observation that Mr. Montei was more opinionated and less

flexible than Ms. Wells did not compel the conclusion that he could not serve as the

residential parent for school purposes or that shared parenting could not work. Indeed, Mr.

Montei was the parent who advocated for the continuation of shared parenting in these

proceedings, whereas Ms. Wells sought to terminate it. As we stated above, the court found

that both parties were very dedicated to the child, that some of the difficulties between them

had been exaggerated during the litigation, and that they had “misconceptions” about one

another that could be overcome. Moreover, the court’s finding that Ms. Wells had agreed to

the modifications it was enforcing was not a minor consideration, as Ms. Wells suggests.

{¶ 62} The court did not abuse its discretion in concluding that modifying shared 24

parenting, rather than terminating it, was in the child’s best interest.

{¶ 63} The fifth assignment of error is overruled.

{¶ 64} The judgment of the trial court will be affirmed to the extent that it found a

change of circumstances and that the child’s best interest would be served by a modification

of the shared parenting plan. The judgment of the trial court will be reversed to the extent

that its modified shared parenting plan did not address all of the statutory factors required of

a shared parenting plan and incorporated an incomplete agreement of the parties. The matter

is remanded for further consideration of the terms of the modified shared parenting plan and

the apparently missing pages that the trial court sought to incorporate. Mr. Montei’s motion

for a stay of the appellate proceedings is denied.

..........

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Valerie Juergens Wilt Beverly Farlow Hon. Thomas J. Capper