ORIGINALIN THE SUPREME COURT OF OHIO

Kevin M. Meaney,

vs.

Appellee,

. Case No. 10-1 9On Appeal from theLake County Court of Appeals,Eleventh Appellate District

Stacy Meaney, : Court of AppealsCase No. 2009-L-50

Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTSTACY MEANEY

Kenneth J. Cahill, #0056207(COUNSEL OF RECORD)DWORKEN & BERNSTEIN Co., L.P.A.

60 South Park PlacePainesville, Ohio 44077(440) 352-3391Fax No. (440) 352-3469 Faxkcahill@dworkenlaw.com

COUNSEL FOR APPELLANT,STACY MEANEY

LINDA D. COOPER, ESQ.166 Main StreetPainesville, Ohio 44077(440) 357-6211Fax: (440) 357-1634lcooper@cooperandforbes.com

COUNSEL FOR APPELLEE,KEVIN M. MEANEY

LL®RJUN 11 ZOiO

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Paee

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST ................................................................... I

STATEMENT OF THE CASE AND FACTS ......................................... 1

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ....................... 4

Proposition of Law: The Trial Court abused its discretion ina divorce action by failing to properly consider all necessary factorsof §3109.04(F)(1) when it granted Appellee-Father sole custodyof the parties minor when Appellant-Mother requested solecustody and Appellee-Father only requested shared parentingand an equal amount of parenting time ................................ 4

CONCLUSION ...... ... ... ...... ... ... ......... ............ ............ ............ ...... 6

PROOF OF SERVICE ................................................................... 7

APPENDIX Appx. Page

Opinion of the Lake County Court of Appeals,Eleventh Appellate District (May 3, 2010) ........................ I

Judgment Entry of the Lake County Court of Appeals,Eleventh Appellate District (May 3, 2010) ........................ 16

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST

This case is one of public and great general interest that should be decided by the Ohio

Supreme Court since it involves fundamental rights protected by both the Ohio State

Constitution and the United States Constitution of Citizens to parent their children without undue

interference by the state.

In this case, the court of appeals failed to protect the Appellant-Mother from an

overreaching trial conrt's decision which issued an order that neither parent requested. While

Ohio Revised Code Section 3109.04 grants a trial court authority to allocate the parental rights

and responsibilities between parents in a divorce action, the trial court may not abuse its

discretion in so doing. Parents have a fundamental right to parent their children as they see best.

For the trial court to ignore their wishes in the absence of any issues such as abuse, neglect,

unfitness, or dependency is an abuse of discretion.

STATEMENT OF THE CASE AND FACTS

Appellee filed for divorce on January 25, 2007. (Td. 2) On January 29, 2007 the Trial

Court issued a restraining order restraining all assets of the parties. (Td. 4) On October 15, 2007

Appellant filed a motion to interview the children in-chambers. (Td. 47) On December 10, 2007

a Magistrate's Order was filed granting the motion to interview the children in chambers. (Td.

51) On December 20, 2007 Appellee filed an ex parte emergency motion to establish parenting

time due to a domestic violence complaint that was filed against him in the Painesville Municipal

Court. (Td. 53) On January 2, 2008 the Trial Court restrained Appellee from going to the

1

marital residence or going to Appellant's place of employment or contacting Appellant at the

marital residence or contacting her cellular phone except in the case of an emergency concerning

the children. (Td. 54)

On June 18, 2008 the Magistrate issued a decision regarding the final trial held in this

matter. (Td. 71) On July 1, 2008 Appellant filed objections to the Magistrate's Decision and a

Motion for Extension of Time to file supplemental objections once a full transcript was obtained.

(Td. 74) On July 9, 2008 the Trial Court granted Appellant an extension of time to file

supplemental objections and a transcript. (Td. 76) On October 3, 2008 Appellant filed

supplemental objections to the Magistrate's Decision. (Td. 93)

On March 27, 2009 the Trial Court entered a final appealable order granting a divorce

between Plaintiff and Defendant. (Td. 99) On Apri12, 2009 Appellant filed a Motion to Stay

execution of final judgment entry of divorce. (Td. 102) On April 10, 2009 the Appellant filed a

timely Notice of Appeal. (Td. 104) On April 15, 2009 Appellant filed an Amended Motion to

Stay. (Td. 105) On April 30, 2009 the Trial Court granted Appellee's Amended Motion to Stay.

(Td. 108)

The parties were married January 19, 1991 and three (3) children were born of the

marriage, to-wit: Henry (d.o.b.: 10/04/1993); Luke (d.o.b.: 05/07/1995); and Jackson (d.o.b.:

08/04/1999). The Court determined the marriage ended on October 15, 2007 - the first day of

the final trial.

During this sixteen (16) year marriage Appellant was the primary caregiver for each

child. Appellant worked weekends as a registered nurse so she could stay at home with the

children during the week. On weekends Appellant worked the night shift so even during the

weekends she could care for the children. Appellant not only cared for the children's daily needs

2

and necessities but she scheduled and transported the children for their medical, social, and

educational requirements. Initially she home schooled each child.

When each child came of age Appellant commenced home schooling them. The oldest

child Henry was homeschooled for six (6) years. The middle child Luke was homeschooled for

five (5) years and the youngest, Jackson, for three (3) years. Both Appellant and Appellee

agreed to this system.

Yet, the children's education became one of the main issues in the parties' marriage.

Appellant wished to continue home schooling the children and Appellee did not. This was the

overriding issue throughout the trial.

The parties built a home in 2003 in Concord, Ohio. One room was specifically built as a

homeschool room for the children. The issue of homeschooling would be the over-arching issue

throughout the litigation Appellant was dedicated to the proposition as was Appellee until just

prior to him filing divorce. Appellant testified as the children progressed some classes, math

particularly, were difficult to teach the children, especially for Appellee. This caused a

tremendous amount of friction in the marital relationship. Appellant suggested the children

could take their math and science requirement at a private learning center while homeschooling

would remain the major source of instruction for the children. Appellee disagreed and demanded

the children be schooled outside the home. Appellee's frustration with the children's studies was

becoming more pronounced. Instead of blending some outside assistance with homeschooling

he demanded that homeschool cease all together.

For the 2006-207 school year the Appellant felt pressured to send all three children to

Cornerstone School. In January 2007 when Appellee filed for divorce he also received an ex

parte order that the children remain enrolled at Cornerstone but the court did not address the

3

financial responsibility for the following school year (2007-2008). Since the parties believed

their divorce would be over iu one (1) year Appellant testified she only agreed to enroll the

children for the 2006-2007 school year. When the divorce did not end in one (1) year the Trial

Court found Appellant in contempt for violating the restraining order which required the children

to attend school. This order was later modified when Appellant received temporary sole custody

and the order required Appellant to school the children per all requirements of the Ohio Revised

Code.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law: The Trial Court abused its discretion in a divorce actionby failing to properly consider all necessary factors of §3109.04(F)(1) when itgranted Appellee-Falher sole custody of the parties minor when Appellant-Mother requested sole custody and Appellee-Father only requested sharedparenting and an equal amount of parenting time.

It is well recognized that the right to raise a child is an "essential" and "basic" civil right.

In re Murray (1990), 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169, 1171, quoting Stanley v. Illinois

(1972), 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 5558. Furthermore, a

parent's right to the custody of his or her child has been deemed "paramount." In re Perales

(1977), 52 Ohio St. 2d 89, 97, 6 Ohio Op. 3d 292, 297. 369 N.E.2d 1047, 1051-1052.

When a trial court commences its process of determining the long term allocation of parental rights

and responsibilities between a mother and father extreme difference must be given to the wishes and

concerns of the parents. Failure to do so without just cause is an abrogation of its duty and an abuse

of discretion. Especially where Appellant demonstrates she has been the primary caretaker of all

three (3) children due consideration must be given to this factor. When forming a custody order, a

trial court should give due consideration to which parent performed the role of primary caretaker

4

Bechtol v. Bechtol (Ohio 1990), 49 Ohio St.3d 21. In the present case Appellee did not present any

substantial evidence. Only Appellant presented such evidence.

In Bechtol the Supreme Court stated,

"The court of appeals properly noted that in Ohio a trial court informing a custody order should give due consideration to which parentperformed the role as primary caregiver. However, the error here is thecourt [***5] of appeals' finding that the trial court did not properlyconsider this factor. In its findings of fact the trial court specificallynoted that "* * * the Plaintiff [Nancy Bechtol] provided services as ahomemaker and child caretaker [caregiver] during the marriage. ***"The trial court also noted that Nancy Bechtol did not work outside thehome during the marriage and only recently had become employed.

This case distinguishes Bechtol in that the Trial Court did not take fully into consideration

her primary caretaking role which is an abuse of discretion. Coupled with the Trial Court not

adequately considering all the necessary factors of §3109.04(F)(1) the Trial Court's Judgment Entry

shall be reversed. [See also Roth v. Roth (Lucas 1989) 65 Ohio App.3d 768, which held the

primary caretaker doctrine, although not a dispositive rule in Ohio is a factor that can be properly

considered when reviewing other statutory factors relating to custody.]

The factor the Trial Court misapplied were the wishes of the child's parents regarding the

children's care. Father did not want the children the majority of the time. The evidence, without

ambiguity, bears out this point. Father stated,

"What I wanted was a 50/50 split with the kids in school. It is not my intention totake the boys away from their mother. I don't think that is in the best interests ofthe kids. (Tp. 254) I think you know we're already losing 100% of the time herewith the boys. It's a travesty. I am not happy about it but the best thing that wecan give ourselves now is a 50/50 shared parenting but the kids need to be inschool." (Tp. 255)

On cross examination Plaintiff-Father reiterated that the parents should have a 50/50

parenting arrangement with the children. (Tp. 351) Specifically, Appellee testified that a week

on week off schedule would be appropriate especially since he has talked to a number of people

5

about this, although he did sL.ggest other alternative 50/50 schedules. (Tp. 352) Neither parent

wanted father to have sole custody and neither parent wanted nor asked for father to have the

parenting schedule the Trial Court recommended.

Yet, the Trial Court, without any basis or explanation granted Appellee sole custody and

limited parenting time to Appellant. The Magistrate's rationalization that he is cognizant of the

employment environment for nurses and Appellant's eventual flexibility in changing her

schedule is not supported by any facts but is mere supposition by the Trial Court. Not allowing

Appellant to have any significant parenting time during the school week is not supported by the

record. Finally, the Trial Court's statement that Appellant should have 50% of the time but not

Appellee (Page 29; Paragraph 101) is another sweeping statement that the Trial Court fails to

support.

The appellate court failed to give due consideration to Appellant's primary role especially

due to the fact that Appellee stated in his testimony that he wanted shared parenting. The

evidence established Appellant only worked weekends. She not only cared for the children on a

daily basis but home schooled the children.

Secondly, the appellate court did not consider appropriately the order requiring both

parents to continue sending their children to a private school but failed to consider that the

parents could not afford this expense. Finding mother in contempt even though she could not

afford this cost was unreasonable.

After the divorce was filed the appellant court stated the Appellant allowed the children

to frequently miss school and violated court orders as to which school the children would attend.

But in reality the transcript and the evidence did not bear these concerns. There was absolutely

6

no evidence that the children's school progression was showed. The court of appeals drew

conclusions without facts to support these conclusions. Further, Appellee never presented any

evidence that the children were behind in their school work or weren't progressing appropriately.

The trial court even pointed out, as did the appellate court, that for more than ten (10) years

Appellee either approved or ignored the educational choices made by Appellant.

It was an abuse of discretion for the appellate court by failing to adequately consider

those factors enumerated in O.R.C. §3109.04(F)(1) by allowing sole custody to be allocated to a

parent who did not want it by not adequately considering the fact that Appellant had been the

primary caretaker and finding her in contempt for not sending the children to a certain school

even though she could not afford to pay the bill.

7

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general

interest. The appellant requests that this court accept jurisdiction in this case so that the

important issues presented will be reviewed on the merits.

Respectfully submitted,

COUNSEL FOR APPELLANT,STACY MEANEY

8

Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinaryU.S. mail to counsel for appellees, Lind D. Cooper, Attorney for Appellee, at 166 Main Street,Painesville, Ohio 44077 on June 2O10.

COUNSEL FOR APPELLANT,STACY MEANEY

9

APPENDIX

KEVIN M. MEANEY,

Plaintiff-A

- vs -

STACY MEANEY MAUREEN G. KEL..LYCLERK OF GCkM7LAKE COUNTY, QHLQ

Defendant-Appellant.

Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No.07 DR 000065.

Judgment: Affirmed.

Linda D. Cooper, Cooper & Forbes, 166 Main Street, Painesvilie, OH 44077-3403 (ForPlaintiff-Appellee).

Kenneth J. Cahill, Dworken & Bernstein, 60 South Park Place, Painesville, OH 44077(For Defendant-Appellant).

MARY JANE TRAPP, P.J.

{11} Appellant, Mrs. Stacy Meaney, appeals the judgment of the Lake County

Court of Common Pleas, Domestic Relations Division, which named appellee, Mr. Kevin

M. Meaney, the residential parent and legal custodian of the parties' minor children, and

ordered parenting time pursuant to Loc.R. 23.

{¶2} Contrary to Mrs. Meaney's assertion, we determine the trial court properly

considered the factors of R.C. 3109.04 in determining custody, issuing a well-reasoned

and cogent analysis under each factor in its judgment entry. As Mrs. Meaney has not

THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

OPINION

elle t,^^A^^*^ ASE NO. 2009-L-050

... 03W

demonstrated the trial court abused its discretion, we find her sole assignment of error

to be without merit and affirm the decision of the trial court.

{13} Substantive and Procedural Facts

{¶4} Mr. and Niis. Meaney were married in January 1991. The Meaneys have

three sons, H.M., born October 4, 1993; L.M., born May 7, 1995; and J.M., born August

4, 1999.

{¶5} In January 2007, Mr. Meaney filed for divorce, claiming incompatibility,

which was ultimately stipulated to as grounds for the action. The matter was tried

before a magistrate over five trial days.

{¶6} On June 18, 2008, the magistrate issued his decision, which provided a

cogent summary and a detailed and well-reasoned analysis as the basis for his

decision. Cogent to this appeal, which centers around the allocation of parental rights

and responsibilities, the magistrate made significant and comprehensive findings as to

why Mr. Meaney should be named the residential parent and legal custodian pursuant

to R.C. 3109.04.

{¶7} The parents' divergent views regarding the children's education was the

central issue during trial. Mrs. Meaney, who works weekends as a nurse, was the

primary caregiver during the week, and was very specific as to her wishes for the

children's education. She homeschodled the boys, while simultaneously searching for

the "perfect school." Mr. Meaney, however, differed in his view, believing it was more

important for the children to have stability, a uniform curriculum, and the social

experiences a school can more readily provide. All three children were involved in

numerous extracurricular activities.

2

{¶8} Thus, the children's educational history followed a pattern of

homeschooling by Mrs. Meaney herself, interspersed with brief periods of schooling at

private schools, which would last sometimes from several days to several months to a

full school year. Mrs. Meaney had difficulty finding a school that met her standards, and

the children, especially the eldest child, attended at least three different schools

between the periods of homeschooling. The court issued an order for the children to be

enrolled in a school for the duration of the divorce proceedings in January 2007.

{¶9} Accordingly, the children were enrolled and attended a private school for

the remainder of the 2006-2007 school year. The following year, however, Mrs.

Meaney refused to allow J.M. to attend, even though Mr. Meaney had paid the tuition in

full and all three boys were enrolled to attend. Instead, on the first day of school, after

dropping off the two older children at school, Mrs. Meaney took J.M. to the park.

Accordingly, Mrs. Meaney was found to be in contempt, and she was able to purge her

contempt by reimbursing Mr. Meaney's attorney fees for the motion.

{¶10} Both parties offered their opinions as to who should be named the

custodial parent. Mr. Meaney testified that Mrs. Meaney is obsessed with education

that "does not make any sense," and that the children need stability. He urged a 50/50

split of parenting time with the children, but Mrs. Meaney did not agree. Mrs. Meaney

testified that she shoi-ld be the custodial parent because she has always been the

primary caregiver during the school week since her schedule allowed more flexibility,

and that is what the children were used to.

{111} The magistrate found that Mrs. Meaney's view regarding the "best school"

for the children borders on "obsessive behavior," while Mr. Meaney's wishes seem to be

3

more centered and balanced. Both parents have strong relationships with the children,

and although Mrs. Meaney has been the primary caretaker thus far, the magistrate

found the parents to be on "equal footing."

{¶12} The magistrate found the children's adjustment to the school community

problematic because all three children have been absent so many times since the court

ordered school enrollment, and that these absences not only interfere with their

academics but with forming social relationships with the other children. Furthermore,

Mrs. Meaney had a difficult time explaining J.M.'s significant absences during the 2006-

2007 school year. The following school year, from August 2007 through the November

30, 2007 trial date, the two older children missed nine and one-half days of school and

were tardy for eleven, which prompted the school to send the Meaneys a notification

letter.

{¶13} The magistrate explained why this "lack of initiative in following through

with the children's school attendance, is significant. If these children had been in a

public school program, the parents would have been in involved in a school truancy;

child neglect case in the juvenile court. The mother is responsible for this irresponsible

behavior. She cannot be trusted to assure that her children remain on a regular steady

learning path. It appears that this may be an intentional act -- in her belief that she

alone is the determiner of attendance and compliance. However, this is a nation of the

'rule of law."'

{1[14} During the proceedings, Mrs. Meaney filed a motion for an in-camera

interview with the children, to which Mr. Meaney filed an objection. After questioning

4

both parties as to their understanding of how stressful such an interview can be for

children, the magistrate granted the motion pursuant to R.C. 3109.04(B).

{¶15} It was obvious to the magistrate after the interviews that "from the

testimony of the parties themselves, even giving the parties deference, (with an

assumption in each attempting to place their testimony at trial in the best possible light),

that there were significant coercive discussions with these children before their visit."

{¶16} The magistrate discovered the children to be, as other witnesses for both

parties indicated, "extremely polite, well-mannered, and polished." The magistrate also

found, however, that the "wishes of the children were stated to him in adult and parental

terms." Thus, the magistrate concluded that "[t]heirwishes cannot be, and are not given

much weight. Their ages, independent thought, and rationales stated for their beliefs

and wishes belie strong consideration."

{¶17} As for allegations of domestic violence and abuse against the children

and/or each other, the magistrate found that it was apparent no such abuse occurred.

While the magistrate was concerned that Mr. Meaney may have an anger issue, he did

not feel it was a factor that weighed as heavily as the other factors considered. In

considering this factor, the magistrate took into account that there was an apparent

altercation in the home while the divorce proceedings were ongoing, and that both

parties have been positing "domestic violence" ever since.

{¶18} The magistrate also found there was extremely contradictory testimony

from both parties as to where the children were sleeping and with which parent, and

whether it was appropriate due to their ages. During the time of trial, the parties were

still living together in the marital home.

5

{119} The magistrate felt the last two factors of R.C. 3109.04(F)(1) had some

bearing on the court's decision, but not significantly so as there had been no willful

denial of parenting time, nor was either party seeking to move out of state. The

magistrate found Mrs. Meaney's testimony regarding moving the children to attend a

school in Florida for a"classicaP' education to be "evasive and contradictory and frankly

not believable." Mrs. Meaney later testified that she no longer has this interest as she

proposed this while the parties were still married, shortly before Mr. Meaney filed for

divorce.

{¶20} Finally, the magistrate considered the disruption of the status quo of the

parties in determining the allocation of parental rights. The magistrate found the "status

quo is unacceptable "`**. The totality of the testimony indicates that the machinations as

regarding the mother trying to manipulate the Court order, the schooling, and the

environment border on the insidious."

{121} The magistrate concluded that designating Mr. Meaney the sole

residential parent and legal guardian was in the best interests of the children.

{122} After the parties filed their objections, the trial court issued its findings of

fact and conclusions of law, adopting, with minor modifications, the magistrate's

decision. Specifically, the court designated Mr. Meaney the residential parent and legal

custodian of the minor children. Mrs. Meaney was basically given the standard

parenting schedule, which generally provides for parenting time on alternate weekends,

and every Wednesday. The court also provided more flexibility for Mrs. Meaney since

she is required to work on certain weekends, provided she is able to transport the

children on time for the beginning of the school day while school is in session.

6

{¶23} It is from this judgment Mrs. Meaney appeals, raising one assignment of

error for our review:

{124} "[1] Whether the trial court erred when it awarded plaintiff-father sole

custody of the three minor children without adequately considering all of the statutory

factors pursuant to O.R.C. 3109.04."

{1[25} Allocation of Residential Parent and Parental Rights

{1126} In her sole assignment of error, Mrs. Meany contests the courts

designation of Mr. Meaney as the residential parent and legal custodian. Specifically,

she alleges that several factors under R.C. 3109.04(F)(1) were not adequately

considered. Thus, she contends the court erred in determining the wishes of the

parents, the wishes of the children as expressed to the court in the in-camera interviews

of the children, the children's interactions with their parents and peers, their adjustment

to the home, school, and the community, and the domestic violence charges raised

against Mr. Meaney during the divorce proceedings. Finally, Mrs. Meaney asserts that

the trial court improperly considered" her intention to move to Florida to pursue a

"classical" education for the children.

{¶27} After reviewing the lengthy testimony in this case, the comprehensive

decisions of both the magistrate, which specifically reviewed each and every factor of

R.C. 3109.04(F)(1), and the trial court, we cannot say the trial court abused its

discretion in awarding sole custody to Mr. Meaney.

{¶28} Standard of Review in Allocation of Parental Rights andResponsibilities

{¶29} "In reviewing matters involving the allocation of parental rights and

responsibilities of minor children, a trial court is vested with broad discretion; thus, a trial

7

court's decision will be reversed only upon a showing of an abuse of discretion." Dexter

v. Dexter, 11th Dist. No. 2006-P-0051, 2007-Ohio-2568, ¶11, citing Miller v. Miller

(1988), 37 Ohio St.3d 71, 74; Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418. An

abuse of discretion connotes more than an error of law or judgment; rather, it implies

that the trial court's decision is unreasonable, arbitrary or unconscionable. Id., citing

Bfakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, "[d]eference to

the trial court on matters of credibility 'is even more crucial in a child custody case,

where there may be much evident in the parties' demeanor and attitude that does not

translate to the record well."' (Emphasis sic.) Id., quoting Davis at 418.

{1130} With this standard of review in mind, we now consider the merits of Mrs.

Meaney's appeal.

{¶31} "Best Interests" Factors

{¶32} Mrs. Meaney contends there are six factors the court inadequately

considered in determining the best interests of the children pursuant to R.C.

3109.04(F)(1):

{4V33} "(a) The wishes of the child's parents regarding the child's care;

{¶34} "(b) If the court has interviewed the child in chambers *** the wishes and

concerns of the child, as expressed to the court;

{¶35} "(c) 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;

(¶36) "(d) The child's adjustment to the child's home, school, and community;

{¶37} "***.

8

{f38} "(h) Whether either parent '** has been convicted of or pleaded guilty to

any criminal offense involving any act that resulted in a child being an abused or

neglected child ***;

{¶39} "***.

{140} "0) Whether either parent has established a residence, or is planning to

establish a residence outside this state

{141} Wishes of the Parents

{142} Mrs. Meaney first argues that the triai court did not properly consider the

wishes of the parents because Mr. Meaney testified he was willing to split custody and

parenting time 50/50, an arrangement to which she would not agree. Mrs. Meaney

argues this is evidence that Mr. Meaney does not want sole custody of the children.

This testimony was taken out of context as the transcript reveals Mr. Meaney was

explaining it was already a travesty that each party could not be with the children 100%

of the time: Further; the magistrate specifically found that in regard to the parents'

wishes for the children, Mr. Meaney's wishes seem more centered and balanced, while

Mrs. Meaney's views, especially regarding education for the children, borders on

"obsessive."

{¶43} Thus, the magistrate found that the repeated changes and school

disruptions provided the exact opposite of Mrs. Meaney's intentions, providing no

stability for the children, which is a "polestar facet of the determination of a child's best

interest." The magistrate found that Mr. Meaney's insight into this need for stability

outweighed the exact schooling environment the parents ultimately chose for their

children. The constant disruption, lack of schedule, and instability of the children's daily

9

lives were found to negatively impact their ability to make friends and form firm social

bonds.

{¶44} It cannot be said that the trial court abused its discretion in its

determination that stability is key for'the children's educational foundation, and that

clearly, given Mrs. Meaney's past history in hyper-controlling the children's education,

Mr. Meaney could provide a more stable environment.

{4W45} In-Camera Interview

{¶46} Oddly, as she filed the motion seeking an in-camera interview of the

children, the next factor Mrs. Meaney contests is R.C. 3109.04(F)(1)(b), the in-camera

interviews of the children. The magistrate, after questioning both parents as to their

understanding of the impact an interview can have on a child, granted the motion over

the objections of Mr. Meaney. The magistrate found that the children gave rehearsed

answers, spoke in adult and parental terms, and that each parent influenced the

children prior to the interviews. Thus, the magistrate disregarded the interviews to that

extent. We can find no abuse of discretion in this determination where the magistrate

found coercion on the part of both parents.

{¶47} Parental Interaction

{1148} Third, Mrs. Meaney argues the court improperly failed to consider the

relationship she has with the children as the primary caregiver, given her stay-at-home

schedule during the week and her active involvement in home schooling. The

magistrate found this was not determinative because both parents were actively

involved in the children's lives on a daily basis, and therefore, the parents were on

"equal footing" in this regard.

10

{149} Despite this specific finding, Mrs. Meaney strongly contends that because

she was the primary caretaker, presumptively she should be awarded sole custody.

This court, however, has previously held, "'the court may take the primary caretaker

doctrine into consideration along with the other factors in R.C. 3109.04,' but the doctrine

does not rise to the level of a presumption." (Emphasis sic.) Bradbeer v. Bradbeer

(April 23, 1995), 11th Dist. No. 92-L-057, 1993 Ohio App. LEXIS 2184, 8-9, citing

Schuster v. Schuster (April 14, 1989), 11th Dist. No. 1947, 1989 Ohio App. LEXIS 1373,

5(emphasis sic). See, also, Bechtol v. Bechtol (1990), 49 Ohio St.3d 21.

{1[50} As in Bradbeer, it is clear that the record in this case does not support the

assertion that the order of the trial court was unreasonable, arbitrary or unconscionable.

The magistrate clearly considered this a major factor, first explaining that both parents

have strong relationships with the children. He then expounded upon Mrs. Meaney's

erratic behavior towards the children's education, stating: "[t]he magistrate is frankly

concerned that the mother has failed in certain areas in such a manner that she is

actually incapable of understanding. The father has culpability as well."

{1[51} The magistrate concluded that neither party introduced testimony that the

other's relationship with the children have caused them to individually suffer in any way.

Rather, the magistrate found that "the children will be attached to either parent," and

"that both parents have extended family and friends that will allow the children to

continue to develop far-reaching relationships."

{1f52} Adiustment to Home, School, and the Community

{¶53} Fourth, Mrs. Meaney takes issue with the court's findings pursuant to R.C.

3109.04(F)(1)(d), the children's adjustment to their home, school, and community. The

11

magistrate found that the children's adjustment as a whole to the school community is

problematic, even though the children have developed good relationships through

heavy participation in extracurricular activities.

{154} Quite troubling was Mrs. Meaney's continued countenance of the

children's absences from school despite the court order. This appeared to the

magistrate to be "intentional," and he found that "in her belief she alone is the

determiner of attendance and compliance." Mrs. Meaney, herself testified that she

pulled the children out of school on days she deemed unnecessary, such as school

spirit week, to take them to the science museum. In another instance, she pulled the

children out of school to attend a different school for one day when they were

supposedly "sick."

{q55} As for the mental and physical health of the children, the court found that

Mrs. Meaney's testimony regarding their second child's repeated "illnesses" should be

disregarded, and that most likely the symptoms were due to stress over the divorce.

{156} In assessing the credibility and mental health of the parents, the

magistrate found that their "behavior frankly borders on the bizarre. The wife's behavior

regarding her need for the 'perfect school' and the 'perfect activity' is inexplicable. Yet

for the husband's argument of frustration given at trial, the evidence is also clear that for

almost 14 years he has either been an active participant in what he now condemns; or

he has failed to consider it to be of such importance so as to speak out until now."

{157} Domestic Violence Allegations

{558} Fifth, Mrs. Meaney alleges that the trial court failed to consider the

domestic violence charges that were pending against Mr. Meaney that arose during an

12

altercation shortly after Mrs. Meaney's motion for in-camera interviews of the children

was granted. The magistrate found allegations of domestic violence against the

children and possible child abuse simply inapplicable because both parties were

"positioning" domestic violence since that altercation. While the magistrate was

concerned that Mr. Meaney may have some anger issues directed at the wife, he

specifically found that "the evidence does not raise this factor or consideration to the

same weight as to some of those other factors as discussed above." In addition and

most fundamentally, those were simply charges, and Mr. Meaney has not been

convicted of domestic violence in the past.

{¶59} Residence Out of State

{¶60} Finally, Mrs. Meaney contends the magistrate wrongly considered her

intentions to take the children to Florida for a'classical" education at a school she

investigated. The judgment entry, however, reveals otherwise, as the entry explicitly

states the magistrate did not find that Mrs. Meaney "had every intention of moving to

Florida ***." The magistrate found, rather, that Mrs. Meaney did testify that she sought

to take the children to a school in Florida and investigated the school personally, but

that she "testified that she no longer has this interest." The entry goes on to state that

"[t]he wife testified that she no longer has this interest," and that "[t]here is no reason not

to believe her * *.°

{161} A review of the transcript reveals there was testimony from both parties

and their witnesses that Mrs. Meaney considered moving, as well as contradictory

testimony that her intent was to actually open a similar classical school in Ohio. At the

time she initially proposed moving, neither party had filed for divorce. Mrs. Meaney

13

testified that that it would not hurt Mr. Meaney's parenting time as "she felt there was

not a marriage," and he could commute on weekends in order to see the children or

relocate.

{1[62} It is clear from our review of the record that there is nothing to support

Mrs. Meaney's assertion that the order of the trial court in naming Mr. Meaney the

residential parent and legal custodian was unreasonable, arbitrary, or unconscionable.

The trial court considered all of the factors pursuant to R.C. 3109.04(F)(1) in

determining the best interests of the children, and their need for stability and continuity.

{¶63} Moreover, the record demonstrates Mrs. Meaney continually disobeyed

court orders. At the time of the divorce decree she still had not attended court-ordered

parental education, and was further found in contempt for her failure to follow the court's

order to keep their youngest son in school while the divorce was pending. The court

was explicit in its final judgment that it was not determining the merits of homeschooling

or ordering the children to attend a certain school. That choice remains with the

parents, so long as continuity and stability, as well as consistent attendance, are

assured.

{1164} Thus, we cannot agree with Mrs. Meaney's contention that her desire to

homeschool the children was a deciding factor in this case. Rather, the linchpin in the

trial court's decision was a determination as to which parent was more likely to honor

and facilitate court-approved parenting time. The totality of the evidence supported the

court's finding in favor of Mr. Meaney as Mr. Meaney testified that he wanted Mrs.

Meaney to have at least 50% of the parenting time, which Mrs. Meaney did not

reciprocate. Additionally, there was evidence that Mrs. Meaney made many decisions

14

without consulting Mr. Meaney. The trial court found that a reasonable inference can be

drawn that Mrs. Meaney will continue to disobey court orders and deny visitation as she

already failed to abide by the court's specific order that all the children attend

Cornerstone for the 2007-2008 school year. Indeed, the court found that Mrs. Meaney

failed to appreciate the seriousness of the custody issue before the court as she came

to trial without even considering the possibility she would not receive sole custody of the

children.

{¶65} Therefore, Mrs. Meaney's sole assignment of error is without merit, and

the judgment of the Lake County Court of Common Pleas, Domestic Relations Division,

is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.

15

STATE OF OHIO)SS.

IN THE COURT OF APPEALS

COUNTY OF LAKE ) ELEVENTH DISTRICT

KEVIN M. MEANEY, JUDGMENT ENTRY

Plaintiff-Appellee,

- vs -

STACY MEANEY,

Defendant-Appella t.

F!COURT OF APPEAW

4sMAUREEN G. KE4UYCLERK OF GQIU^hT .

LAKE CO.I^JN`TY,O:MEjO_

For the reasons stated in the opinion of this court, appellant's assignment

of error is without merit. It is the judgment and order of this court that the

judgment of the Lake County Court of Common Pleas, Domestic Relations

Division is affirmed.

Costs to be taxed against appellant.

FOR THE COURT

page 1page 2page 3page 4page 5page 6page 7page 8page 9page 10page 11page 12page 13page 14page 15page 16page 17page 18page 19page 20page 21page 22page 23page 24page 25page 26page 27page 28