Davidovics v. Shore (135 Ohio App. 3d 374, 1999)

Patricia Ann Blackmon, Judge.

The issue in this case is whether an original shared parenting plan made as part of a divorce decree can continue when the mother has moved to New York and intends to teach and instruct the minor child in Orthodox Judaism over the father’s objections. The trial court found that geography dictated a different plan and that on the subject of religious schooling, the parents had already agreed by court order that the child would receive a Jewish education. The court recognized that the only division was over the extent of the teaching. The father argues the court has wrongly shown a preference for Orthodox Judaism by its order and that he should be granted support and should be the sole determiner of the child’s education and religious upbringing. He assigns the following errors for our review:

“I. The trial court erred by ordering changes to the school selection provision of the prior order.

“II. The trial court erred by imposing a companionship schedule that deprives the father of the opportunity to celebrate any religious or secular holidays with his child.

“III. The trial court’s decision violates the Establishment and Free Exercise Clauses of the United States and Ohio Constitutions by impermissibly infringing on the father’s constitutional rights.

“IV. The trial court erred by deviating from the child support guidelines and by failing to award child support to the father.

“V. The trial court erred when it modified the shared parenting plan after the evidence demonstrated that the parties were unable to cooperate regarding their child.”

Having reviewed the record and the legal arguments of the parties, we affirm the judgment of the trial court in part and reverse and remand it in part. We reverse on assignment of error two as it relates to the unreasonableness of giving the mother all of the holidays and vacations. Consequently, we reverse and remand to reconsider that issue consistent with this opinion. The apposite facts follow.

Three years after his birth, Nathan Shore’s parents divorced and agreed to shared parenting. Among other things, the shared parenting gave the father alternating weekends and holidays, two midweek evenings, and two weeks during summer to increase as the child aged. The court ordered the father to pay $260 support. The parties agreed to restrict their residences to Cuyahoga, Lake, and Geauga Counties unless they agreed otherwise, or by court order. The parties also agreed that Nathan would receive a Jewish religious education and upbringing. However, they agreed to mutually agree on the extent of the Jewish education, upbringing, and lifestyle. The shared parenting agreement was incorporated into the divorce decree.

On August 9,1995, the father moved to change the shared parenting order and restrain the mother from moving Nathan to Brooklyn, New York, where she planned to move. The court granted his restraining order. The court also appointed Janet Kronenberg as the guardian ad litem and ordered various psychological evaluations.

Therefore, the mother filed a motion to relocate and for psychological evaluations. She permanently moved to New York in November 1995, and married Yankel Davidovics. After an eight-day trial on various days in May and June 1996, the magistrate issued his order to continue the shared parenting, but to modify it to take into account the geographical changes occasioned by the mother’s move. The magistrate also recognized that the mother’s embrace of Orthodox Judaism had strained the ability of these two parents to find the common ground for Nathan’s well being that they once shared without restraint. The magistrate recognized that the father is admittedly opposed to Orthodox Judaism whereas the mother is an Orthodox Jew. This, the magistrate recognized, has made for a difficult situation.

Thus, the court granted the father primary possession of the child during the school year; however, the mother would continue to enjoy liberal weekend access if she chose to remain in the state of Ohio. If the mother did not remain in Ohio, the court would grant alternating weekends to the mother with primary consideration given to Nathan’s school schedule. The court then ordered the mother possession during the holidays, vacations, and most of the summer.

Additionally, the mother was allowed to select three schools that would provide Nathan with a Jewish religious education. The father was to select one out of the three. If he did not select one, the mother was to choose. The mother was held responsible for the tuition and related expenses. The father’s child support order was terminated. Given the cost to the mother for Nathan to travel, and her responsibility for the cost of education, the mother was not ordered to pay child support. The other provisions of the shared parenting plan remained unchanged. On August 30, 1996, the parties agreed to enroll Nathan in Jewish Day Nursery, a conservative Jewish Day School in Beachwood, Ohio.

The father filed his objections to the magistrate’s decision on January 20,1998, having had a continuance granted. On October 26, 1998, the trial court sustained the father’s objections in part and denied them in part. It adopted the magistrate’s decision with some changes in the possession schedule and gave the father the right to claim Nathan on his income taxes. The father filed this appeal on November 24, 1998.

Before we address the assigned errors in this case, this court is greatly concerned that the magistrate’s report was issued on June 12, 1997, and a final ruling was not made for over a year on October 26, 1998. The delay was largely due to the trial court’s granting numerous continuances to the mother and the father. While this court cannot tell a trial court how to run its docket, we do want to note that this time period is unreasonable and without good justification.

Additionally, this court is mindful that the father believes that this case turns on a religious preference. However, we are not so persuaded. In fact, this case is more about geography than religion. We reach this conclusion because the decision to change the shared parenting agreement came as a result of the mother’s move to New York. The issue over whether Nathan would receive a Jewish education had already been decided by the parties in the original divorce. Both parties agreed that he would receive a Jewish education. To have the mother recommend schools for Nathan is simply a continuation of what the parties had initially agreed to in the original divorce.

Both assigned errors one and three will be discussed together. The father argues that the trial court erred in changing the school selection provision under the prior order. He maintains that it was improper to permit the mother to select a Jewish religious school. His third assignment of error argues that the trial court’s decision regarding Nathan’s schooling infringes upon his constitutional rights under the Establishment and Free Exercise Clauses of the United States and Ohio Constitutions.

The order states:

“Prior to the commencement of the school year, mother shall provide father with the choice of three schools she would like Nathan to attend. Father shall have the option of selecting one of the three schools chosen by the mother. If father chooses not to exercise this option, then mother shall make the selection. The tuition and related educational expenses shall be paid by the mother.

“The parties further agree that the child shall have a Jewish religious education and upbringing, and that the parties shall consult one another and mutually agree upon the extent of such Jewish education, upbringing and lifestyle and other matters of similar importance affecting the child, whose well-being, education and development shall, at all times, be of paramount consideration to both father and mother. Father shall respect the right of mother, if requested, to allow the child to attend religious courses or schooling during the summer while in the possession of mother.”

Nathan’s father agreed to religious school training for Nathan in the original shared parenting agreement. The Ohio Supreme Court has reasoned that provisions that have been agreed upon by the parties in divorce agreements are enforceable by a court. Rand v. Rand (1985), 18 Ohio St.3d 356, 358, 481 N.E.2d 609, 611. It chose not to treat one for the selection of a religious school differently. In Rand, a father agreed in a separation agreement, which was incorporated into the divorce decree, to pay for his son’s religious school training. The Ohio Supreme Court stated:

“[AJppellant herein agreed, of his own free will, to reimburse his wife for his son’s religious education. Such a consensual agreement ordinarily does not fall within the ambit of the Establishment Clause of the federal or state Constitution. The language in Section 7, Article I of the Ohio Constitution, that ‘[n]o person shall be compelled to * * * support any place of worship * * * against his consent,’ in part dispels appellant’s argument. Moreover, appellant’s averred rights would be counterbalanced by appellee’s right to freely exercise her religion and her right, as the custodial parent, to formulate and implement the child’s religious education.” Rand, id., citing In re Landis (1982), 5 Ohio App.3d 22, 5 OBR 24, 448 N.E.2d 845.

The father argues that courts have ruled that a trial court cannot impose a parochial school requirement upon a residential parent. For this proposition, he cites Caner v. Caner (Feb. 6, 1979), Franklin App. No. 78AP-581, unreported. However, we believe Caner is easily distinguished from the case at bar. The parents in Caner had not made a provision in their original separation agreement for the religious training of the children. The court merely pointed out that the children’s religious school training had not been dealt with and it could not order the children to receive religious training if the parents had not previously agreed to do so. Id. at 5-6. However, enforcing a prior agreement that a child will attend a religious school is within the trial court’s discretion and therefore not in violation of the father’s constitutional rights.

The magistrate’s decision did not alter the type of school the parties selected in the original agreement. On the contrary, to order Nathan to attend public school would deviate from the original agreement. The magistrate’s decision only modified the original agreement to the extent that the mother is given the right to select three religious schools from which the father may choose. The father cites no objections to the schools from which he was allowed to choose. In fact, both parents selected and enrolled Nathan in a conservative Jewish preschool in 1996.

The father argues the trial court failed to determine the modification was in Nathan’s best interests. “[T]he discretion of the trial court is not unlimited,. but is subject to reversal upon the basis of a showing of abuse of discretion.” Baxter v. Baxter (1971), 27 Ohio St.2d 168, 172-173, 56 O.O.2d 104, 107, 271 N.E.2d 873, 876. The law in Ohio is that a trial court abuses its discretion when it fails to consider the best interests of the child. Birch v. Birch (1984), 11 Ohio St.3d 85, 87-88, 11 OBR 327, 329-330, 463 N.E.2d 1254, 1256-1258. A trial court is obligated to consider a number of factors when considering the best interests of a child. R.C. 3109.04(F)(1)(c). These are:

“The child’s interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child’s best interest;

“The child’s adjustment to his home, school, and community;

“The mental and physical health of all persons involved in the situation.” Pater v. Pater (1992), 63 Ohio St.3d 393, 396, 588 N.E.2d 794, 797.

In the case sub judice, before delivering its order the magistrate made these findings:

“Nathan interacts and relates with each of his parents very well.

“Both parents show an intense interest in Nathan’s physical and spiritual upbringing.

“The Magistrate further finds both parents have appeared rigid and intolerant at times.

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“The fact that one parent practices their faith to a stronger degree is not something that would adversely effect [sic] a minor child.