[Cite as Cireddu v. Clough,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JAMES V. CIREDDU, et al., : OPINION

Plaintiff-Appellee/ : Cross-Appellant, CASE NO. 2013-L-092 : - vs - : STEPHANIE Y. CLOUGH, : Defendant-Appellant/ Cross-Appellee. :

Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2008 CV 02029

Judgment: Affirmed.

Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., 1660 W. Second Street, Suite 410, Cleveland, OH 44113 (For Plaintiff-Appellee/Cross-Appellant).

Stephanie Y. Clough, pro se, 8060 Wright Road, Broadview Heights, OH 44147 (Defendant-Appellant/Cross-Appellee).

Rebecca Castell, 12690 Opalocka Drive, Chesterland, OH 44026 (Guardian ad litem).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant/cross-appellee, Stephanie Y. Clough, and plaintiff-

appellee/cross-appellant, James V. Cireddu, appeal the judgment of the Lake County

Court of Common Pleas, Juvenile Division, granting Clough’s Motion to Modify

Parenting Time/Visitation and Motion to Recalculate Child Support, giving her equal

parenting time and reducing her child support obligation. The issues before this court are whether a trial court errs in not ordering discovery of information when a party states

that such information does not exist, whether a child support deviation should be

awarded when one is not clearly requested or proven, whether a trial court may accept

testimony that a party’s income for one year was not indicative of his typical income,

whether a trial court must determine which party can claim a dependency tax exemption

when modifying child support, and whether it is an abuse of discretion to award one

parent equal parenting time when there is testimony that the children are happy and

secure in the current parenting time arrangement. For the following reasons, we affirm

the judgment of the court below.

{¶2} On October 14, 2008, Cireddu filed a Complaint with the Lake County

Court of Common Pleas, Juvenile Division, to determine custody of his and Clough’s

two minor children, J.C., born on January 18, 2006, and G.C., born on December 11,

2008.

{¶3} Following a trial, on August 13, 2009, the magistrate found that Clough “is

not likely to honor court-ordered parenting time with [Cireddu]” and the geographical

distance between the parents was not conducive to shared parenting. The trial court

subsequently adopted this recommendation and Cireddu was granted legal custody.

The custody determination was affirmed by this court in Cireddu v. Clough, 11th Dist.

Lake No. 2010-L-008,

.1

{¶4} Various other issues and motions have been litigated by the parties

following the custody determination. These motions led to court orders requiring

Cireddu to make the children available for telephone conversations and to provide

1. The lower court’s judgment was reversed in part, due to an error in stating the appropriate date for the commencement of child support payments.

2 Clough with information about the children. The lower court also held that the children

would retain Clough’s surname, which was affirmed by this court in Cireddu v. Clough,

11th Dist. Lake No. 2011-L-121,

, ¶ 27.

{¶5} Clough subsequently filed a Motion for Allocation of Parental Rights and

Responsibilities/Motion for Shared Parenting on August 18, 2011. This Motion was

denied by the lower court, on the grounds that no change in circumstances was proven

to allow for the modification of custody. This determination was affirmed by this court in

Cireddu v. Clough, 11th Dist. Lake No. 2012-L-103,

.

{¶6} While the foregoing appeal was pending, Clough filed a Motion to Modify

Parenting Time/Visitation and Motion to Recalculate Child Support, on September 17,

2012, as well as a Renewed Motion on October 18, 2012. She asserted that modifying

parenting time to allow her equal time with the children would be in their best interest.

Clough also asserted that this change in parenting time and the disparity in the parties’

incomes would require a modification of the child support award.

{¶7} On November 5, 2012, Clough filed a request for Cireddu to provide

certain documents, including financial records relating to his income and child care

expenses.

{¶8} On November 8, 2012, Cireddu filed a Brief in Opposition to Clough’s

request for increased visitation, arguing that it is not in the children’s best interest.

{¶9} Proceedings were initially stayed, due to the pending appeal in this court.

However, the lower court determined that the issues raised were “unrelated to the

pending appeal” and the matter was scheduled for a hearing.

3 {¶10} Clough filed a Motion to Compel on December 20, 2012, asserting that

she had not been provided proper documentation in response to her request for

records. Cireddu responded that he provided all documents that he had possession of,

except for a few that were irrelevant to the proceedings.

{¶11} A hearing was held on the Motion to Modify Parenting Time/Visitation on

January 7, 2013.

{¶12} Cireddu testified that he generally works around 40-50 hours in his

Fellowship at MetroHealth Hospital, during which time his mother is the caregiver for the

two children. He also does consulting work when he has extra time or lessened

responsibilities in his primary job and generally works only one or two shifts a week in

this capacity, although he has worked up to five days a week.

{¶13} Cireddu testified that he would be willing to allow Clough to exercise a

Wednesday visitation which she had not had in the past. He believed that he has been

accommodating regarding visitation. He denied that he was non-compliant with court

orders to provide phone contact between the children and Clough. Cireddu believed

that an increase in visitation, as requested by Clough, would not be in the children’s

best interest. He explained that J.C. is afraid Clough and her husband will harm each

other and that G.C. seems to “regress” when he returns from weekend visitations.

{¶14} Clough, who is currently a Pulmonary Critical Care Fellow at MetroHealth

Hospital, testified that she moved from Columbus to a home in Broadview Heights,

where she lives with her husband and other child, A.C., born on August 1, 2011. This

home is in the same school district as Cireddu’s and is a 15 minute drive from his home.

She explained that J.C. and G.C. enjoy being in her home, have a play room and a craft

4 room, as well as friends in the neighborhood. Clough testified that her husband would

be able to use his flexible work schedule to care for the children.

{¶15} Clough explained that she was having difficulty communicating with

Cireddu, primarily in receiving phone time with the children and obtaining information

about their activities. She also expressed concern with a reading problem that J.C. was

having in school. She believed it is in the best interest of the children to have equal

visitation and explained that they would be able to continue attending the same schools,

given her proximity to their current residence.

{¶16} On January 23, 2013, the trial court issued a Judgment Entry, denying

Clough’s Motion to Compel, finding that Cireddu had complied with the discovery

request and the remaining items were irrelevant to the proceedings. Clough

subsequently filed a Motion to Vacate that Judgment Entry, which was denied.

{¶17} Clough filed a Motion to Adopt Revised Standard Rule V Parenting Time

on February 8, 2013, arguing that she should be given standard visitation since she

moved in close proximity to the children.

{¶18} On February 14, 2013, Clough filed Combined Interrogatories and

Document Requests, again seeking various financial records.

{¶19} On February 15, 2013, the guardian ad litem filed a Motion to Enforce

Prior Orders on Visitation, also requesting that the court enforce visitation under Local

Rule V. The court ordered that Clough have parenting time pursuant to the court’s

December 22, 2009 order, pending the outcome of the ongoing litigation.

{¶20} A second hearing was held on April 9, 2013, which was related primarily to

Clough’s Motion to Recalculate Child Support.

5 {¶21} At the beginning of the hearing, Clough asserted that she had just

received requested discovery the night before and that she was missing a W-2 from

Cireddu’s consulting work. She stated that she could proceed with the hearing, but

needed the W-2. Cireddu explained that he had not yet obtained the W-2, but that he

could provide his year-end paystub. The requested paystub was provided at the

conclusion of the hearing, and Clough explained that there were no other records

needed for her to rest her case on the child support.

{¶22} Cireddu testified that he pays his mother to provide child care, including

payment of her bills and expenses. He declared $6,000 for child care on his tax returns

for 2010 and 2011, although he pays more than this for his mother’s expenses. He

believes that she is a good care provider for the children, due to her background as a

teacher.

{¶23} He explained that in 2012, he had limited responsibilities because of an

elective class, which allowed him to work as a consultant, and he made between

$105,000 and $110,000. He testified that he would not be able to continue that work to

the same extent in the future, that he had made approximately $33,000 for consulting in

2011, and that he would expect to make approximately $60,000 from consulting in

future years.

{¶24} Regarding the children, Cireddu explained that they are doing well and

have an established routine. He expressed concerns regarding behavioral problems

when they return from Clough’s home, as well as J.C.’s knowledge of the legal

proceedings and expression of anxiety after returning. He also noted that the children

smell like smoke when returning from Clough’s home, and are not always given baths.

6 {¶25} Victoria Cross-Cireddu, Cireddu’s mother, testified that she was not

employed, to allow her to take care of the children. She explained that she is

compensated by Cireddu through his payments for the home and bills.

{¶26} Clough testified that she believed she had overpaid support for the past

year, due to Cireddu’s consulting income. She presented her calculation of what she

believed child support should be, which totaled $493.41 per month.

{¶27} The guardian ad litem, Rebecca Castell, testified regarding her

recommendation on the Motion to Modify Parenting Time/Visitation. She believes that

the children benefit from their relationships with both parents. She recommended that it

was in the best interest of the children to spend equal time with Clough.

{¶28} On May 1, 2013, a Magistrate’s Decision was filed. The magistrate found

that, although both parents have “demanding careers,” they are “dedicated to spending

as much time with their children as possible” and both have appropriate childcare

arrangements in place. The magistrate also found that the two parents have difficulty in

working together to parent the children, although the children were described as happy.

{¶29} Regarding the parties’ finances, it was noted that both have had an

increase in income and that Cireddu earned over $106,000 doing consulting work in

2012. The magistrate found that, pursuant to Cireddu’s testimony, he would not earn as

much consulting income in the future. The magistrate found that $60,000 in consulting

income would be an appropriate estimate for his typical consulting income. The

magistrate also found that Cireddu’s childcare expenses amounted to $6,000.

{¶30} The magistrate discussed the factors considered regarding visitation

under R.C. 3109.051(D), noting that the children have a good relationship with Clough

7 and their half-sister, the parties live in close proximity, both parents are dedicated to

spending time with the children, and the guardian ad litem recommended equal

parenting time. The magistrate concluded that Clough should have parenting time

equal to Cireddu’s possessory time, allowing her to have the children on a weekly

rotating basis.

{¶31} The magistrate recommended that the Motion to Recalculate Child

Support be granted, and that Clough should pay $623.23 per month in child support,

attaching the completed child support worksheet.

{¶32} Clough filed Objections to Magistrate’s Decision on May 13, 2013 and

Supplemental Objections on July 5, 2013. She argued, inter alia, that the magistrate

erred in calculating child support and by failing to designate who should claim the

children for tax purposes and that she was not provided with proper discovery.

{¶33} Cireddu also filed Objections to Magistrate’s Decision on May 14, 2013

and Supplemental Objections on July 12, 2013. He argued that the magistrate failed to

properly weigh the evidence to determine the best interest of the children.

{¶34} A hearing was held on the objections on September 6, 2013. On the

same date, the court overruled the objections to the Magistrate’s Decision and issued a

Judgment Entry adopting the Magistrate’s Decision in full. Thus, Clough was granted

parenting time every other week and ordered to pay $636.23 per month in child support,

when health insurance is provided, and $541.70 when health insurance is not provided.

{¶35} On appeal, Clough raises the following assignments of error:

{¶36} “[1.] The court erred in failing to enforce Appellant’s Request for the

Production of Documents and subsequent legally court issued subpoena resulting in a

8 failure to afford the Appellant her right of discovery in order to obtain, document, and

verify amounts for the calculation of child support for the Appellee’s annual income, self-

employment income and child care payments.

{¶37} “[2.] The court erred by arbitrarily choosing to use unverified amounts for

the calculation of child support for the Appellee’s annual income, self-employment

income and childcare expenses in place of verified submitted documents.

{¶38} “[3.] The court erred by failing to calculate the Appellant’s child support

obligation in accordance with the basic child support schedule, the applicable

worksheet, and the other provisions of sections 3119.02 and 3119.24 of the Revised

Code.

{¶39} “[4.] The court erred by failing to designate the Parent entitled to claim the

federal income tax deduction as required under 3119.82 of the Revised Code.”

{¶40} On cross-appeal, Cireddu raises the following assignments of error:

{¶41} “[1.] The trial court erred in modifying appellant’s parenting time rights.

{¶42} “[2.] The trial court erred [in] awarding appellant parenting time rights

equal in time to the custodial possession time of appellee.”

{¶43} In her first assignment of error, Clough argues that the trial court erred in

failing to enforce her request for the production of certain documents.

{¶44} Cireddu argues that he complied with the requests to the extent necessary

and Clough received the documents required to pursue her motions.

{¶45} “The trial court has broad discretion in regulating the discovery process

and, therefore, the trial court’s decisions on discovery matters will not be reversed

absent an abuse of discretion.” Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062,

9

, citing Mauzy v. Kelly Services, Inc.,

,

(1996).

{¶46} First, Clough argues that Cireddu failed to disclose records showing the

hours that he worked in his consulting job and that the trial court erred in failing to

compel the production of these documents. Cireddu stated that he gave her the

requested documents, although he did not provide her his own personal calendar where

he had written his work dates and times. He testified that there is no set schedule as it

relates to his consulting jobs and that he fills in at various hospitals when needed.

Thus, he could not provide a specific work schedule. Although Clough argues that

Cireddu should have had such hours documented through submissions to his program

supervisor at MetroHealth, Cireddu testified that his supervisor does not review any of

the extra consulting hours Cireddu works and such records are not kept on a monthly

basis. Based on Cireddu’s response to the request that such records were not

available, and the foregoing testimony, the trial court did not abuse its discretion in

determining he was not required to provide records which he did not have. See Dick v.

Tab Tool & Die Co., 5th Dist. Licking No. 2008-CA-0013,

(“[t]he

trial court was free to believe or disbelieve appellant’s explanations of why the

documents do not exist”).

{¶47} Clough also argues that she received some child support documentation

the day before the hearing, one document on the morning of the hearing, and one

document during the afternoon of the hearing. She fails to assert, however, how this

constitutes an error. She not only received these specific documents that she

requested, but she expressed satisfaction that she had received the documents

10 requested. Specifically, when the court asked if, after receiving evidence of Cireddu’s

consulting salary, she would “have all of the records that [she] needed” or whether there

were still items that were outstanding under her subpoenas, she responded that “that

would be it.” When asked, after receiving that document, whether there was “any

other outstanding discovery” or “records that she was hoping to obtain,” she responded

“no.” Thus, while she claims that she was denied the ability to receive monthly pay

stubs for Cireddu’s consulting hours, she did not state at that time that they were

necessary for the calculation of child support.

{¶48} Clough also appears to take issue with the fact that certain records she

attempted to subpoena from Cireddu’s employers were not provided and contends that

these records related to Cireddu’s “employment income.” Cireddu provided the

documentation from his employment, in the form of W-2s and paystubs and, as noted

above, Clough informed the court that she was satisfied she had received the

necessary documentation to rest her case.

{¶49} While Clough also argues that she was not given a hearing related to

these discovery issues, she was given the opportunity to discuss these issues at the

hearings on her motions, as well as adequate opportunity to respond to Cireddu’s

assertions regarding discovery through written pleadings.

{¶50} Finally, Clough raises an argument regarding whether the trial court erred

in failing to use certain documentation to calculate child support. As this issue relates to

child support and not discovery, we will address it in the subsequent analysis.

{¶51} Clough’s first assignment of error is without merit.

11 {¶52} In Clough’s second assignment of error, she argues that the trial court

erred in using amounts to calculate child support that were not supported by

documentation.

{¶53} “[A] trial court’s decision regarding child support obligations falls within the

discretion of the trial court and will not be disturbed absent a showing of an abuse of

discretion.” (Citation omitted.) Pauly v. Pauly,

,

(1997).

{¶54} Pursuant to R.C. 3119.05, “[w]hen a court computes the amount of child

support required to be paid under a court child support order * * * [t]he parents’ current

and past income and personal earnings shall be verified by electronic means or with

suitable documents, including, but not limited to, paystubs, employer statements,

receipts and expense vouchers related to self-generated income, tax returns, and all

supporting documentation and schedules for the tax returns.”

{¶55} While Clough is correct that a child support calculation should be

supported by documentation, such documentation was provided and considered by the

court to aid in determining Cireddu’s income, including his paystubs and/or W-2s from

several jobs he held during the past few years. However, an additional factor that was

relevant in this case was that Cireddu’s consulting income was not consistent from year

to year. This was evidenced by the fact that he made approximately $33,000 from

consulting work in 2011 but made approximately $106,000 in 2012. Documentation

alone cannot be used to determine what Cireddu’s income may be in future years.

Courts have noted that when a party has a changing income, the trial court can exercise

its discretion to make an income determination for the purposes of child support. See

12 Onyshko v. Onyshko, 11th Dist. Portage No. 2008-P-0035,

, ¶ 90 (in light

of the party’s “variable incomes,” the trial court did not abuse its discretion in

determining the applicable income for child support purposes); Hahn v. Hahn, 9th Dist.

Medina No. 11CA0064-M,

(the trial court did not err in accepting

the wife’s testimony to estimate her income). As this court has noted in the context of

income averaging for the purposes of child support, “‘[i]t is no more “fair” to penalize a

parent and order much higher child support after an uncommonly good financial year,

than it would be to penalize the child for a parent’s temporary decline in income.’”

(Citation omitted.) Maiden v. Maiden, 11th Dist. Lake No. 2010-L-076,

,

¶ 17.

{¶56} Clough asserts that the trial court also erred in finding that $6,000 was an

appropriate amount of child care to credit toward Cireddu. She takes issue with the fact

that Cross-Cireddu, the children’s caregiver, was not paid a typical wage and that

$6,000 specifically allotted to child care was never paid to her. We cannot find that the

trial court abused its discretion in determining this amount.

{¶57} A review of the testimony demonstrates that Cireddu claimed this amount

for child care on his tax returns. He also testified that he made various payments for his

mother, including car payments, house payments, and other expenses. While these

payments were not directly for child care, the testimony established that they were

made in lieu of actual payments for child care. While it was difficult to differentiate how

much of this payment was for child care and how much was for other reasons, such as

providing a home for his children, the amount determined by the trial court was not an

abuse of discretion.

13 {¶58} Clough also argues that she should have received repayment for past

child support, since the amount of child care Cireddu pays was determined by the court

to be only $6,000, rather than the $14,400 amount under the past child support order.

The trial court in the present matter merely determined that, as of the time of the

hearing, $6,000 was a reasonable sum for child care. It did not find that Clough had

overpaid for child care over the past years. We find no basis for determining that the

trial court abused its discretion in not making such a finding.

{¶59} Finally, Clough takes issue with the trial court’s failure to allow her to

submit new evidence regarding Cireddu’s residence in her Objections to the

Magistrate’s Decision.

{¶60} Pursuant to Civ.R 53(D)(4)(d), in ruling on a party’s objections to the

magistrate’s decision, “the court may hear additional evidence but may refuse to do so

unless the objecting party demonstrates that the party could not, with reasonable

diligence, have produced that evidence for consideration by the magistrate.” Clough did

not raise this matter in her objections to the Magistrate’s Decision but raised it

separately in a response to Cireddu’s objections. She did not describe the evidence

she had in support of her contentions or explain why she could not have discovered this

evidence during the course of the proceedings. In fact, when she raised this issue, she

even noted that Cireddu’s intention to move “likely already [had] been put into motion at

the time of the hearings.” In addition, this evidence was raised in response to Cireddu’s

assertion that equal visitation should not be permitted. Since the court upheld the

Magistrate’s Decision in Clough’s favor as to this issue, it was unnecessary for the court

to consider the evidence for the purposes that Clough sought to have it admitted.

14 {¶61} Clough’s second assignment of error is without merit.

{¶62} In Clough’s third assignment of error, she argues that the trial court erred

by failing to order an amount of child support that deviates from the child support

schedule and worksheet, since she will be spending equal time with the children and

makes less money than Cireddu.

{¶63} R.C. 3119.02 provides that, in any action where a child support order is

issued or modified, the court shall calculate the amount of child support pursuant to “the

basic child support schedule, the applicable worksheet, and the other provisions of

sections 3119.02 to 3119.24 of the Revised Code.” “The court may order an amount of

child support that deviates from the amount of child support that would otherwise result

from the use of the basic child support schedule and the applicable worksheet, * * * if,

after considering the factors and criteria set forth in section 3119.23 of the Revised

Code, the court determines that the amount calculated pursuant to the basic child

support schedule * * * would be unjust or inappropriate and would not be in the best

interest of the child.” R.C. 3119.22. “Any court-ordered deviation from the applicable

worksheet and the basic child support schedule must be entered by the court in its

journal and must include findings of fact to support such determination.” Marker v.

Grimm,

,

(1992), paragraph three of the syllabus.

{¶64} As an initial matter, it is questionable whether this matter was properly

raised before the trial court. Although Clough initially asserted in her Motion to

Recalculate Child Support that a change in visitation and the parties’ incomes warranted

a change in the child support, during the hearing, she did not explain her basis for a

15 deviation from the child support worksheet. She submitted to the trial court a child

support worksheet that listed child support at $439.41.

{¶65} Clough did note that her estimated recalculation did not take into account

any changes in visitation, but presented no further information in support of a deviation

and did not state specifically that she was requesting a deviation. Clough also failed to

present evidence regarding the deviation, showing why the child support award was

unjust, or why the support ordered under the worksheet would not be in the best interest

of the child. In the absence of such evidence, the trial court has little basis to determine

that a deviation was in the best interest of the children or was necessary in this case.

{¶66} Although Clough argues that equal parenting time provides a sufficient

basis to grant a deviation, a trial court is not required to grant a deviation on such

grounds, especially where, in this case, there is a lack of evidence to show the costs

that she would incur through this increased parenting time. Courts have concluded that

equal parenting time does not mandate a deviation from child support obligations. See

Peters v. Peters, 11th Dist. Lake No. 2004-L-198,

; Glassner v.

Glassner,

,

,

(5th Dist.).

{¶67} This court has also emphasized that there is “‘no authority for requiring a

trial court to deviate from the child support guidelines merely because a deviation would

be permissible, or even desirable.’” (Citations omitted.) (Emphasis sic.) Kosovich v.

Kosovich, 11th Dist. Lake No. 2004-L-075,

. Further, when the

trial court properly calculates the child support and the court does not deviate from that

amount, “the court does not need to justify its decision.” Id. at ¶ 18.

{¶68} Clough’s third assignment of error is without merit.

16 {¶69} In Clough’s fourth assignment of error, she argues that the trial court erred

by failing to designate which parent should be permitted to claim a tax deduction for the

children.

{¶70} Cireddu argues that there is a presumption in favor of the residential

parent receiving the tax exemption.

{¶71} “[T]he trial court has broad discretion in making a determination

concerning the allocation of dependency exemptions for tax purposes.” Stauffer v.

Stauffer, 11th Dist. Geauga No. 2008-G-2860,

.

{¶72} Pursuant to R.C. 3119.82, “[w]henever a court * * * modifies, reviews, or

otherwise reconsiders a court child support order, it shall designate which parent may

claim the children who are the subject of the court child support order as dependents for

federal income tax purposes.” Such a designation is generally required when issuing a

child support order. See Henderson v. Henderson, 3rd Dist. Mercer No. 10-01-17,

, ¶ 9.

{¶73} In the present case, the court did not explicitly state which parent was

designated for the purposes of the tax exemption. However, the trial court did note in its

September 9, 2013 Judgment Entry on the objections to the Magistrate’s Decision that

“[a]ll orders currently in effect which are not modified by the explicit terms of this order

remain in full force and effect.” On August 13, 2009, a Magistrate Order was issued,

and subsequently adopted by the trial court, ordering that Cireddu claim the children as

dependents for tax purposes for every year thereafter. Since this order was not

modified, it remains in full force and effect and acts as the designation of the court on

the tax exemption issue. The determination to allow Cireddu to retain the tax exemption

17 is also consistent with the presumption in favor of the custodial parent in the allocation

of the exemption, in the absence of evidence supporting a contrary determination. See

Mustafa v. Elfadli, 5th Dist. Delaware No. 12 CAF 08 0058,

, citing

Singer v. Dickinson,

,

(1992).

{¶74} Clough’s fourth assignment of error is without merit.

{¶75} Since Cireddu’s assignments of error on cross-appeal both relate to the

determination of visitation/parenting time and whether it is in the children’s best interest,

we will consider them jointly.

{¶76} “A trial court has broad discretion to modify visitation rights.” Victor v.

Miller, 11th Dist. Lake No. 2000-L-177,

, 10 (Apr. 19,

2002); Braatz v. Braatz,

,

(1999), paragraph two of

the syllabus (a trial court, in considering a change in visitation rights, “in its sound

discretion shall determine visitation that is in the best interest of the child”).

{¶77} “Modification of visitation rights is governed by R.C. 3109.051.” (Citation

omitted). Braatz, at paragraph one of the syllabus. “Pursuant to R.C. 3109.051(D), * *

* the trial court shall consider the fifteen factors enumerated therein,” to determine the

best interest of the child.

. “The party requesting a change in visitation rights

need make no showing that there has been a change in circumstances in order for the

court to modify those rights.” In re S.B., 11th Dist. Ashtabula No. 2010-A-0019, 2011-

Ohio-1162, ¶ 101.

{¶78} Cireddu asserts that Clough must prove the existing parenting time

arrangement is not in the best interest of the children and that the children were not

doing well under these circumstances. In determining whether modification of visitation

18 is proper, this court has considered whether the change in visitation is generally in the

child’s best interest, not only whether the present circumstances are not in the best

interest of the child. S.B. at ¶ 101; Braden v. Braden, 11th Dist. Portage No. 2006-P-

0028,

. As discussed above, the best interest determination is

arrived at by evaluating the statutory factors. If the lower court concluded that

increased visitation with Clough was in their best interest, it would follow that not

allowing such an increase is not in their best interest. Thus, even if the children were

doing well in their current living arrangement with Cireddu, this does not mean that it is

not in their best interest to have increased visitation with Clough.

{¶79} Cireddu also argues that it was not in the children’s best interest for

Clough to be granted increased parenting time, in an amount giving each parent equal

time with the children. While Cireddu places great emphasis on the fact that the

children are currently doing well in his home, all of the factors required under R.C.

3109.051(D) must be considered by the trial court. S.B. at ¶ 102 (one factor under R.C.

3109.051(D) “is not determinative” of the best interest issue).

{¶80} In the present case, the Magistrate’s Decision listed each of the

appropriate factors to consider and provided specific analysis as to each relevant factor.

It specifically noted that the children have a good relationship with Clough and their half-

sister, that the parties live in close proximity, that both parents are dedicated to

spending time with the children, and that the guardian ad litem recommended equal

parenting time. Thus, the court complied with the requirement to determine the best

interest of the children pursuant to R.C. 3109.051(D).

19 {¶81} Cireddu raises several specific arguments to support his contention that

the trial court abused its discretion in granting Clough increased visitation. First, he

asserts that the magistrate neglected to address the fact that the children’s

grandmother, Cross-Cireddu, would no longer be able to care for the children since she

would lose the full amount of compensation she was paid to take care of the children on

a daily basis. We note, however, that this appears to be more about the inconvenience

to Cireddu and his mother, rather than in relation to the best interest of the children.

Even if Cross-Cireddu was no longer able to care for the kids, which she did not testify

to, there is no basis for finding that any other caregiving situation arranged by Cireddu

will not be in their best interest.

{¶82} Cireddu also argues that the magistrate failed to properly address

Clough’s unwillingness to facilitate a relationship with him and the difficulty that the two

have in interacting with each other, based on Clough’s actions toward him. It is clear

that the magistrate took this factor into consideration, noting that they have an “inability

to get along.” However, it does not appear that a change in the visitation schedule will

have an impact on the children or the relationship of the parties, given that they will still

have to communicate and interact when exchanging the children and discussing

matters relevant to the children. Allowing extended visitation will not alter this fact.

Further, as the court noted, while the two parents have difficulty cooperating, the

evidence established that Clough “exercises her court-ordered parenting time regularly

without incident or interference.” No evidence was presented by Cireddu that Clough

has denied him information or phone calls with the children in the past while they were

exercising their visitation.

20 {¶83} Cireddu also asserts that spending more time with Clough will serve to

increase the children’s anxiety, given that it will disrupt their lives, and that the

conditions at Clough’s home, including discussion of legal matters, will have a

detrimental impact on the children. The court specifically noted that there was no

psychological evidence presented to back up the claims that the children exhibited

trauma when returning from their mother’s home. The court ultimately found that,

regardless of Cireddu’s testimony, the children did not exhibit any mental health issues

and that neither parent presents a risk of harm to the children. While the trial court may

not have accepted all of Cireddu’s testimony regarding the effects visitation has on the

children, appellate courts generally defer to the lower court on matters of credibility,

especially in cases involving child custody/visitation, “where there may be much evident

in the parties’ demeanor and attitude that does not translate to the record well.” Davis

v. Flickinger,

,

(1997).

{¶84} Also, the court did not err in failing to find that the children’s lives would be

“very fractionated” or that the new visitation arrangement would interfere with their

activities or abilities to maintain friendships, as argued by Cireddu, given that the

children will remain in the same school district, and the parties live only 15 minutes from

each other. There appears to be no reason why the children could not continue on with

the same schooling, friendships, and activities, regardless of which home they may be

staying at during a given week.

{¶85} Finally, Cireddu takes issue with the GAL’s recommendation, asserting

that the GAL had not seen the children recently. However, it is noteworthy that the GAL

has been involved in the case since May of 2011 and has conducted an investigation

21 into the best interest of the children as it relates to increased time with their mother.

She has also met with the children in the past. She issued the previous GAL report on

the similar motion requesting shared parenting, which raised comparable

considerations. The trial court was entitled to consider the GAL’s recommendation and

afford it the appropriate weight.

{¶86} Based on the foregoing, the existence of multiple factors outlined by the

court in favor of the change in visitation, and the applicability of the abuse of discretion

standard, we cannot find that the lower court erred in adopting the Magistrate’s Decision

and granting Clough increased visitation with the children.

{¶87} Cireddu’s first and second assignments of error on cross-appeal are

without merit.

{¶88} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, Juvenile Division, granting Clough’s Motion to Modify Parenting

Time/Visitation and Motion to Recalculate Child Support, is affirmed. Costs to be taxed

against the parties equally.

TIMOTHY P. CANNON, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

22