Mahoning County Shared Parenting Case

The Seventh District Court of Appeals has recently clarified an issue of shared parenting that came before it in the case Tara C. Kougher v. Charles E. Kougher, Jr. (Case No. 10 MA 54; 2011-Ohio-3411).

This was a 2-1 decision. In the majority were judges Waite, who wrote the Opinion, and Vukovich. Judge DeGenaro filed a lengthy dissent.

The Kougher case revolved around whether or not a change in circumstances is necessary to uphold a motion to terminate a shared parenting order. Although the court held that Ohio law mandates that a change of circumstance is necessary to modify shared parenting agreement, the court held that such a change is not a part of the statute that is used to actually terminate that order.

The parties had been married in 2002, and had one child as a result of that marriage. They had had one other child together before they were actually married, and so that child fell under the jurisdiction of Juvenile Court, and was not subject to this lawsuit.

Mrs. Kougher filed for a divorce in 2008. At the first hearing, which was in front of a magistrate, Mr. Kougher asked for and was given primary custodial parent status, because the court found that he had been the child’s primary caregiver. He was designated as the child’s residential parent during the pendency of the divorce.

The parties proceeded to negotiate a separation agreement, which included a shared parenting agreement. Even though he agreed, he apparently had longstanding misgivings about having a shared parenting plan.

Shortly after the final hearing, and even though he had agreed to the plan, he filed an objection to the magistrate’s decision. Those objections were overruled, and the shared parenting order was made a part of the divorce decree on July 1, 2009.

On August 8, 2009, Mr. Kougher filed a motion to terminate shared parenting. He did not seek a modification of the order—only a termination.

The magistrate then held a hearing on that motion, where the sole issue tried was whether or not there had been a change in circumstances for the parties. The magistrate found the obvious—in six weeks, nothing had changed. The motion was overruled. Mr. Kougher filed objections with the domestic court, which were also overruled.

The appeal ensued. Mrs. Kougher did not file a brief in the case, but the appellate court nevertheless went ahead and made their clarifying decision.

Mr. Kougher’s assignment of error was that “the trial court erred by applying the Ohio Supreme Court decision in Fisher v. Hasenjager (2007-Ohio-5589) to a motion to terminate an original shared parenting order pursuant to R.C. 3109.04(E)(2)(c), thus requiring a change of circumstances in contradiction to the clear language of the statute.”

The Fisher case had held that a change of circumstances was necessary to modify a shared parenting agreement. The domestic relations court had applied Fisher to the Kougher case.

Kougher argued in his appeal that the Fisher case did not apply to a termination of a shared parenting agreement, but rather that the statute indicated that such a change was not necessary for such a termination.

Fisher had dealt with dispute between the application of two statutes— R.C. 3109.04(E)(1)(a) and 3109(E)(2)(b).  The appellate court in the Kougher case held quickly that both of those statutes had to do with a modification, and not a termination, of a shared parenting plan. In so many words, the appellate court held that the lower court had misapplied Fisher.

Instead, the appellate court held that the statute that actually applied was 3109.04(E)(2)(c). That section of the statute states that the court may terminate a shared parenting agreement based upon a determination of the “best interests of the child”.

The appellate court stated that the wording of this section, “leads to the inevitable conclusion that (it) provide(s) different procedures (than the modification sections).”

The appellate court then went on to discuss the difference between overturning a shared parenting plan and the shared parenting part of the decree itself. When a party asks for a termination of the decree, the court has to “start from scratch,” which is much different from asking for a termination of the plan, which would be a different issue.

The case was therefore reversed and remanded to the lower court for a determination of what would be in the best interests of the Kougher child.

If you have questions about dissolution, divorce or parenting plans, please give us a call at 1-800-297-9191 for a free consultation or learn more at our website http://www.dissolutionanddivorce.com

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Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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