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Schwartz v. Osiatynski12/18/1997
HE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING AN ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES THAT IS CONTRARY TO LAW AND NOT IN THE BEST INTEREST OF THE PARTIES' CHILDREN.
Osiatynski contends the court abused its discretion when it failed to issue a shared parenting order and, subsequently, granted Schwartz's motion to remove the children to Florida.
Schwartz urges the court did not err because it properly determined the children's best interests.
The issue then presented for our review concerns whether the trial court erred when it failed to issue a shared parenting order and then granted the appellee's motion to remove the children to Florida.
R.C. 3109.04 provides for the allocation of parental rights and states in pertinent part at S(A)(1):
* * * if * * * no plan for shared parenting is in the best interest of the children, the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children * * *.
An appellate court must uphold the trial court's allocation of parental rights and responsibilities, absent an abuse of discretion which implies that the court's attitude is unreasonable, arbitrary or unconscionable. Masters v. Masters (1994), 69 Ohio St.3d 83.
Here, based upon her observations and the testimony of Dr. Mark Lovinger, a clinical psychologist, Mary Ann Theby, of Family Conciliation Services, and Janice Edgehouse Rieth, the children's guardian ad litem, the magistrate stated in relevant part, in its March 28, 1996 decision:
Throughout the pendency of this matter, the parents have shown little ability or inclination to cooperate and to make decisions jointlywith respect to the children. In fact, their inability to communicate and their hostility to one another have dominated their behavior. * * * To hope that they will ever treat each other with civility and respect appears out of reach at present. (Emphasis added).
The magistrate further stated in pertinent part in its October 24, 1996 decision:
At this time the long-held belief of the children, that this prolonged intense fight between their parents will never end, has reached crisis proportions. After referral to Family Conciliation Service * * * Theby saw the two children * * * at which time she became seriously concerned about the level of depression observable in the older child. * * * The most difficult thing for him is having to wait for decisions on where he is going to live. Both children are equally clear on their desire to be with their mother * * *.
The magistrate recommended that the court allocate the parental rights and responsibilities to Schwartz and grant her permission to move the children to Florida because they expressed a desire to live with her there.
Based upon the evidence adduced at the hearing before the magistrate, the court's judgment adopting the magistrate's decision in connection with these matters does not constitute an abuse of discretion, and we conclude the court did not err when it allocated parental rights and responsibilities in this case.
Osiatynski separately argues the court erred when it admitted the testimony of Lovinger, in the absence of a waiver of the children's physician-patient privilege, and the testimony of Theby, since she failed to file a written report five days prior to the hearing. However, the record
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