Evangelista v. Horton

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-1472

Case Date: 03/22/2011

Plaintiff: Evangelista

Defendant: Horton

Preview:[Cite as Evangelista v. Horton, 2011-Ohio-1472.]

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

LISA EVANGELISTA PLAINTIFF-APPELLANT VS. RANDY HORTON DEFENDANT-APPELLEE

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CASE NO. 08 MA 244

OPINION

CHARACTER OF PROCEEDINGS:

Civil Appeal from the Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio Case No. 07 JI 615 Modified and Affirmed in part. Reversed and Remanded in part.

JUDGMENT:

APPEARANCES: For Appellant: Atty. Albert A. Palombaro 1032 Boardman-Canfield Road Boardman, Ohio 44512 Atty. Bruce M. Broyles 164 Griswold Drive Boardman, Ohio 44512 For Appellee: Atty. Matthew C. Giannini 1040 S. Commons Place, Suite 200 Youngstown, Ohio 44514

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 22, 2011

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WAITE, P.J. {1} This case arose as a parentage action in the Mahoning County Court of

Common Pleas, Juvenile Division. This appeal arises out of the trial court's judgment regarding visitation, child support, a change in the minor child's surname, and the allocation of the child dependency tax exemption. Appellant was designated as the residential parent, and she contends that the trial court had no basis for deviating from the standard order of visitation when granting visitation rights to Appellee. The trial court possesses broad discretion in determining visitation, and no abuse of discretion is indicated in the record of this case as to the visitation order. Appellant contends that the court should not have made an adjustment to Appellee's child support order to take into account that Appellee had custody of their minor child 56 days more than the standard visitation order. The amount of time each party has custody of the child is a factor in determining child support, and the court was again within its discretion to adjust child support accordingly. Appellant also argues that the court should not have changed the child's surname to Appellee's name without considering the best interests of the child, and she is correct that the court failed to apply the proper factors or determine the best interests of the child in making this change. Appellant's final objection is that she should have been awarded the federal child dependency tax exemption. There is a presumption that the tax exemption will be awarded to the residential parent, and Appellee did not overcome this presumption. Therefore, the court should have awarded the full tax exemption to Appellant. Appellant's third and fourth assignments of error are sustained. The

-3judgment is modified to reflect that Appellant may claim her child as a dependent for tax purposes, and the case is remanded to determine whether the child's surname should be changed is in the best interests of the child. Case History {2} The parties' minor child was born on April 3, 2007. Appellee's paternity

was confirmed by genetic testing on June 6, 2007. The Mahoning County Court of Common Pleas, Juvenile Division, adopted the paternity confirmation in a judgment entry filed June 21, 2007. On July 6, 2007, Appellee moved for shared parenting, requested an order changing the minor child's last name, and asked the court for the right to claim the minor child for federal and state income tax purposes. The trial court then issued a series of pre-trial orders granting child support to Appellant and awarding visitation rights to Appellee. {3} A trial in the matter was held on September 11, 2008. On October 27,

2008, the trial court issued its judgment entry. The trial court designated Appellant Lisa Evangelista as the residential parent and Appellee Randy Horton as the nonresidential parent. Appellee was granted visitation on alternating weekends and This visitation was considerably more than the

alternating midweek periods.

standard visitation order in that visitation extended from Thursday to Monday instead of Friday to Sunday, and the midweek visitation period was also longer than that of the standard visitation order. The minor child's birth certificate was changed to name Appellee as father and the minor child's surname was also changed to Appellee's surname. Because the visitation granted to Appellee exceeded the standard order of

-4visitation, the trial court scheduled a child support hearing for January 7, 2009 to determine whether the excess visitation would require a modification of Appellee's child support obligations. The right to claim the minor child for federal and state income tax purposes was also to be decided at this future hearing. {4} On December 3, 2008, Appellant filed her notice of appeal. The appeal

was held in abeyance until the trial court could address the outstanding child support and tax exemption issues. These issues were ultimately adjudicated by a judgment entry filed on June 3, 2009. The trial court explained that child support obligations were originally calculated using the court's standard order of visitation, but the fact that Appellee enjoyed additional visitation above the standard order meant that his child support obligation required a downward deviation. The tax exemption for the minor child was awarded equally between the parties. Appellant would receive the exemption in odd-numbered years and Appellee would receive the exemption in even-numbered years. {5} Appellant filed an amended brief after the remaining support issues

were resolved, and Appellee filed a corresponding answer brief. ASSIGNMENT OF ERROR NO. 1 {6} "THE TRIAL COURT ERRED IN GRANTING ADDITIONAL

VISITATION TIME TO APPELLEE MR. HORTON WHEN THERE WAS NO EVIDENCE SUPPORTING A DEVIATION FROM THE STANDARD VISITATION ORDER."

-5{7} The abuse of discretion standard is used to review a trial court's

decision to grant visitation. See Booth v. Booth (1988), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. A court abuses its discretion when it makes a decision that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Appellant contends that the trial court abused its discretion by granting additional visitation to Appellee above the court's standard order. Additionally, Appellant appears to suggest two other potential errors by the court. Appellant asserts the court did not demonstrate consideration of the factors listed in R.C. 3109.051(D). Appellant also argues that the trial court's grant of

visitation stemmed from a desire to account for previous visitation withheld from Appellee. {8} When the parents of a minor child are unmarried and the father seeks

visitation with the child, R.C. 3109.12 is the relevant statute. R.C. 3109.12 reads, in pertinent part: {9} "(A) * * * If a child is born to an unmarried woman and if the father of the

child has acknowledged the child * * *. {10} "(B) The court may grant the parenting time rights or companionship or

visitation rights requested under division (A) of this section, if it determines that the granting of the parenting time rights or companionship or visitation rights is in the best interest of the child. In determining whether to grant reasonable parenting time rights or reasonable companionship or visitation rights with respect to any child, the court

-6shall consider all relevant factors, including, but not limited to, the factors set forth in division (D) of section 3109.051 of the Revised Code." {11} Appellant's contention that the trial court abused its discretion by

deviating from the standard order of visitation is without merit. A court's standard order of visitation is discussed by R.C. 3109.051(F)(2), which reads: {12} "On or before July 1, 1991, each court of common pleas, by rule, shall

adopt standard parenting time guidelines. A court shall have discretion to deviate from its standard parenting time guidelines based upon factors set forth in division (D) of this section." {13} While trial courts often utilize a standard order of visitation, the statute

clearly states that the court retains the discretion to deviate from standard parenting guidelines using the factors in division (D). {14} Appellant suggests that the court's failure to demonstrate consideration

of the R.C. 3109.051 division (D) factors constitutes an abuse of discretion. R.C. 3109.051(D) reads: {15} "(1) The prior interaction and interrelationships of the child with the

child's parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child; {16} "(2) The geographical location of the residence of each parent and the

distance between those residences, and if the person is not a parent, the

-7geographical location of that person's residence and the distance between that person's residence and the child's residence; {17} "(3) The child's and parents' available time, including, but not limited to,

each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule; {18} {19} {20} "(4) The age of the child; "(5) The child's adjustment to home, school, and community; "(6) If the court has interviewed the child in chambers, pursuant to

division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court; {21} {22} siblings; {23} {24} "(9) The mental and physical health of all parties; "(10) Each parent's willingness to reschedule missed parenting time "(7) The health and safety of the child; "(8) The amount of time that will be available for the child to spend with

and to facilitate the other parent's parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;

-8{25} "(11) In relation to parenting time, whether either parent previously has

been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child; {26} "(12) In relation to requested companionship or visitation by a person

other than a parent, whether the person 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 person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether 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 an 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;

-9and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child; {27} "(13) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court; {28} "(14) Whether either parent has established a residence or is planning

to establish a residence outside this state; {29} "(15) In relation to requested companionship or visitation by a person

other than a parent, the wishes and concerns of the child's parents, as expressed by them to the court; {30} {31} "(16) Any other factor in the best interest of the child." The catchall provision, R.C. 3109.051(D)(16), allows the trial court to

consider any relevant factor in making its determination, and to give as much weight to that factor as the court sees fit. The court is not limited to considering only the specifically enumerated factors in the statute. {32} The central focus of any visitation order is the best interests of the

children. Kelm v. Kelm (2001), 92 Ohio St.3d 223, 226, 749 N.E.2d 299. "A trial court may limit or restrict visiting rights of a party in order to further the child's best interest." Callender v. Callender, 7th Dist. No. 03-CA-790, 2004-Ohio-1382, at

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