text:
    Ronald TALBOT, et al., Plaintiffs-Appellees, v. Ray R. WARD, et al., Defendants-Appellants.
    NO. 15 MO 0001
    Court of Appeals of Ohio, Seventh District, Monroe County.
    Dated: December 18, 2017
    Atty. Ethan Vessels, Fields, Dehmlow & Vessels, A Limited Liability Company, 309 Second Street, Marietta, Ohio 45750, For Plaintiffs-Appellees.
    Atty. Charles H. Bean, Thornburg & Bean, Post Office Box 96, 113 West Main Street, St. Clairsville, Ohio 43950, For Defendants-Appellants.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Intervenors-Appellants Katherine Haselberger, Charlotte McCoy and John L. Christman appeal the decision of Monroe County Common Pleas Court granting summary judgment for Plaintiffs-Appellees Ronald and Candace Talbot. This case involves the 1989 and 2006 versions of the Ohio Dormant Mineral Act (DMA) and interpretation of deeds transferring oil and gas royalty, bonus, and rental interests. Appellees are the surface owners and Appellants claim to be the holders of the oil and gas royalty, bonus, and rental interests underlying the surface. The trial court made two separate holdings in favor of Appellees. First, it found the 1989 version of the DMA was applicable and under that act, the oil and gas royalty, bonus, and rental interests were abandoned and vested with the surface. Second, it found Appellants did not demonstrate they were the holders of the oil and gas royalty, bonus, and rental interests. It found the deeds Appellants claimed gave them title to the oil and gas royalty, bonus, and rental interests did not transfer any interest to Appellants' predecessor.

{¶ 2} Three issues are raised in this appeal. The first issue is whether the trial court erred in applying the 1989 DMA. The second issue is whether the trial court erred in failing to consider the 1945 Deed from Ernest and Glena Ward to Nova A. Christman, Appellants' predecessor, selling Ward's "1/2 part of the royalty of all the oil and gas and the 1/2 of all rentals and bonuses in and under" the subject premises to Christman. The third issue is whether the trial court erred when it determined the deed from Dow and Mary Mellott to John and Minnie Tomolonis did not convey any oil and gas interest to John and Minnie Tomolonis, but rather the Mellotts retained the remaining 1/2 royalty of the oil and gas and 1/2 interest of all rentals and bonuses.

{¶ 3} For the reasons expressed below, the trial court's grant of summary judgement for Appellees is reversed and the matter is remanded with instructions for the trial court to enter summary judgment for Appellants. Appellants own the entire oil and gas royalty, rental, and bonus interests underlying the real property at issue.

Statement of the Case

{¶ 4} Appellees own 70.25 acres in Monroe County. This tract of land was part of a larger 117.33 acre tract of land owned by E.M. and Glena Ward in the early 1930s.

{¶ 5} In 1931, the Wards conveyed the 117.33 acres to Walter Ady. The deed contained a reservation for 3/4 of the oil and gas royalty, rental, and bonus interests. The deed also indicated the coal was excepted from the conveyance because it was already sold to Samuel W. Harper of Wheeling, West Virginia.

{¶ 6} In 1934 Ady conveyed the surface and unreserved interest back to E.M. Ward. He did not reserve any interest. The deed, however, did reference the prior exception of coal.

{¶ 7} In 1936, E.M. Ward conveyed the 117.33 acres to Dow Mellott. However, in doing so, Ward reserved 1/2 of the oil and gas royalty, rentals, and bonuses. This deed also indicated the coal was excepted from the conveyance because it was already sold. Ward's reserved 1/2 oil and gas royalty, rental, and bonus interests were sold to Nova A. Christman in 1945. In identifying the 1/2 interest underlying the 117.33 acres, the deed described the 117.33 acres in the same manner that it was described in previous deeds.

{¶ 8} In 1943, Mellott conveyed the 117.33 acres to Minnie Tomolonis. There was a reservation and exception in the deed stating, "Excepting and reserving the coal Known as the Pittsburgh or No. 8 vein, the same having been sold to Samuel W. Harper of Wheeling, W.Va. Also excepting 1/2 of the oil and gas royalty and 1/2 of all rentals and bonuses from the above grant."

{¶ 9} In 1949, John and Minnie Tomolonis conveyed the 117.33 acres to Martha Conway, Elizabeth Balzdorfer, Walter Dietrich, Rilla May Rose, and Silvia McDaniel (Conway, et al.). The reservation in the deed provided, "The grantors reserve and except unto themselves, their heirs and assigns, the one half of oil and gas, with the right to enter upon said premises for the purpose of producing the same. Also excepting and reserving the coal and mining rights and the oil and gas rights as heretofore reserved, excepted and conveyed by former owners of said premises."

{¶ 10} The Tomolonises sold their purported 1/2 oil and gas interest in all rental, royalty, and bonus interests underlying the 117.33 acres to Nova and Dollie Christman in 1967.

{¶ 11} Following the Tomolonises conveyance of the surface to Conway, et al., the surface was conveyed multiple times before Appellees purchased 70.23 acres of the 117.33 acres. All of those deeds contained an exception for any coal, oil, or gas that had previously been reserved.

{¶ 12} In November 2013, Appellees sought to have the surface estate reunited with the mineral estate under the 1989 DMA. They filed a complaint for declaratory judgment and quiet title. Appellees named Ray Ward, Denver Ward, Nellie Nutt, Marcelene Norris, Carol Pittman, Lulu Belle Pierce, Vera Given, Audrey Ward, Sheryl Clift, Shelia Ferguson, Terry Pierce, Francis Ward and unknown heirs of Walter Ady. The named defendants were the known heirs of Glena and Ernest Ward and the unknown heirs of Ady. Due to unknown heirs and not knowing some of the addresses of the known heirs, Appellees published notice of the suit. 1/9/14 Publication Notice.

{¶ 13} On December 31, 2013, Appellants, the Christman heirs, filed a motion to intervene claiming they were holders of 1/2 of the interest in the oil and gas royalty, bonus, and rental interests underlying Appellees' property. The motion to intervene was granted. 1/16/14 J.E.

{¶ 14} Appellants filed an Answer, Counterclaim, and Crossclaim. Their filing contained a recitation of the property transactions from Ward to Ady, Ady to Ward, Ward to Mellott, Mellott to Tomolonis, and so forth up to Appellees. In this recitation was the 1967 Tomolonis-Christman deed whereby Tomolonis conveyed his purported 1/2 interest in the oil and gas royalty, bonus, and rental interests to Christman. Appellants stated they filed an Affidavit/Claim/Notice to Preserve Mineral Interest in December 2013, which listed the Tomolonis-Christman 1967 conveyance of 1/2 of the oil and gas interest. Appellants also asserted the claims were governed by the 2006 DMA, not the 1989 DMA arguing the 2006 DMA superseded the 1989 DMA. Therefore, they asserted their claim to preserve prevented the oil and gas interests from being deemed abandoned. At this point, Appellants were not claiming to own the entire oil and gas interest.

{¶ 15} Appellees answered the counterclaim. They asserted the Tomolonis-Christman 1967 deed conveyed nothing to Christman because Tomolonis did not have anything to convey. They asserted Ward retained 1/2 interest and Mellott retained 1/2 interest. Therefore, when Mellott conveyed the 117.33 acres to Tomolonis, there was no conveyance of a mineral interest. Furthermore, they contended the 1989 DMA was not superseded by the 2006 DMA.

{¶ 16} Appellees filed their motion for summary judgment asserting the same claims set forth in the answer to the counterclaim. The summary judgment motion contained a chart of the property transactions. Appellees' assertion in the complaint that the prior mineral holders were the heirs of Ward and heirs of Ady, was altered by Appellants' motion to intervene and counterclaim. It appeared they were now asserting the heirs of Mellott and Ward were the holders of the mineral interest, but those interests were abandoned.

{¶ 17} Appellants filed their motion for summary judgment asserting they owned 1/2 of the oil and gas royalty, rental, and bonus interests. They asserted the Mellott-Tomolonis deed did not reserve a 1/2 interest to Mellott. Rather, they argued the exception language was notice of the reservation by Ward. Thus, Mellott's conveyance to Tomolonis conveyed all the interest Mellott owned, which was the surface and 1/2 the oil and gas royalty, bonus, and rental interests. They also asserted the 1989 DMA was superseded by the 2006 DMA. As such, their claim to preserve prevented the interests from being deemed abandoned.

{¶ 18} Approximately two weeks after their motion for summary judgment was filed, Appellants filed a supplement to the Summary Judgment Motion. For the first time, Appellants claimed they owned 100% of the oil and gas royalty, bonus, and rental interests. Appellants referenced and attached the 1945 Ward-Christman deed to support their claim. Appellants also cited a new case to support their position that the Mellott-Tomolonis deed did not reserve 1/2 oil and gas royalty, bonus, and rental interests to Mellott. It was a Texas case, Duhig v. Peavy-Moore Lumber Co. , 135 Texas 503, 144 S.W.2d 878 (1940). Attached to the supplement was a filed and recorded Corrective Affidavit/Claim/Notice to Preserve Mineral Interest, which listed the Tomolonis-Christman 1967 conveyance and the 1945 Ward-Christman conveyance. This affidavit purported to preserve the whole interest to the oil and gas royalty, bonus, and rental interests.

{¶ 19} Filed jointly with the supplemental summary judgment motion was a request for a new briefing schedule and permission to amend their answer, counterclaim, and cross claim. Despite Appellees' opposition to the motion, the trial court granted the request.

{¶ 20} Appellants then filed an Amended Answer and Counterclaim asserting they own 100% of the oil and gas royalty, bonus, and rental interests. They also once again argued the 1989 DMA was superseded by the 2006 DMA. Appellees answered the counterclaim.

{¶ 21} Appellants filed a Second Amended Motion for Summary Judgment and asserted all the same claims previously asserted in the first motion for summary judgment and the supplemental motion for summary judgment. They claimed to own 100% of the oil and gas royalty, bonus, and rental interests. One half of the interest was derived from the Tomolonises. They cited the Duhig case to support this position. The other half was derived from the 1945 Ward-Christman deed.

{¶ 22} The trial court entered summary judgment for Appellees. 2/11/15 J.E. The court found, under the 1989 DMA, the mineral interest at issue was abandoned and merged with the surface estate. 2/11/15 J.E. The court additionally stated the Tomolonises never possessed a half interest to convey to Christman. 2/11/15 J.E. Therefore, the Tomolonis-Christman deed did not transfer any interest. 2/11/15 J.E. In rendering its ruling, the trial court set forth a chart of the conveyances starting with Ward's conveyance to Ady and ending with Appellees acquiring the surface. 2/11/15 J.E. This chart does not reference the 1945 Ward-Christman oil and gas royalty, bonus, and rental interests deed, nor does it indicate why this 1945 deed was not considered. In fact, the judgment entry does not address the other half interest Appellants claimed to own.

{¶ 23} Appellants filed a timely appeal from the trial court's decision. Prior to briefing, the matter was stayed pending the Ohio Supreme Court's decision on whether the 1989 DMA was superseded by the 2006 DMA. After the Court rendered its decision in Corban v. Chesapeake Exploration, LLC , the stay was lifted.

Standard of Review

{¶ 24} A court properly grants summary judgment "when an examination of all relevant materials filed in the action reveals that 'there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C). An appellate court reviews the granting of summary judgment de novo. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

First, Fourth, and Fifth Assignments of Error Ohio Dormant Mineral Act

"The Court below erred in finding that the 1989 Dormant Mineral Act applied to this case which was filed after the effective date of the 2006 Dormant Mineral Act which took effect on March 30, 2006."

"The Court erred below in applying the 1989 Dormant Mineral Act and not the 2006 Dormant Mineral Act."

"The Court below erred in not finding title transactions in the pertinent 'look back period.' "

{¶ 25} These assignments of error address the trial court's decision to apply the 1989 version of the DMA to claims filed after the effective date of the 2006 version of the DMA.

{¶ 26} Recently, the Ohio Supreme Court in Corban explained the application of the 1989 DMA and the application of the 2006 DMA:

The 1989 Dormant Mineral Act was not self-executing and did not automatically transfer ownership of dormant mineral rights by operation of law; rather, the surface holder was required to bring a quiet title action seeking a decree that the mineral rights had been abandoned in order to merge those rights into the surface estate.
The 2006 amendment to the Dormant Mineral Act applies to claims asserted after its effective date and specifies the procedure that a surface holder is required to follow in order to have dormant mineral rights deemed abandoned and merged with the surface estate.

Corban v. Chesapeake Expl., L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 40-41. See also Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.3d 427, ¶ 16.

{¶ 27} Application of Corban indicates the trial court's conclusion that the oil and gas royalty, bonus, and rental interests were abandoned under the 1989 DMA was incorrect. The 1989 DMA was not self-executing and is inapplicable to claims asserted after the 2006 DMA's effective date. Corban . The claims in this case were asserted in 2013, which was after the effective date of the 2006 DMA. Therefore, the grant of summary judgment for Appellees on the basis of the 1989 DMA was incorrect. Appellees concede this point in their appellate brief.

{¶ 28} In order to have the mineral rights deemed abandoned and reunited with the surface, Appellees were required to follow the procedures set forth in the 2006 DMA. The 2006 DMA requires notice of abandonment to be provided to mineral holders and a filing of an affidavit of abandonment in the office of the county recorder. R.C. 5301.56(B) and (E) ; Albanese v. Batman , 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800, ¶ 21-22 (2016) (Surface owner's service of the notice and filing of the affidavit are required under the 2006 DMA, R.C. 5301.56(B) and (E) ). When the record is devoid of compliance with those provisions, the surface owners' challenge to the interpretation of the 1989 DMA is moot and the severed mineral rights remained with the holders. Albanese at ¶ 22.

{¶ 29} Here, the record is devoid of any compliance with R.C. 5301.56(B) and (E) as set forth in the 2006 DMA. There is no indication in the record an affidavit of abandonment was filed and recorded, or a notice of abandonment was provided to the mineral holders.

{¶ 30} Although Appellees did not pursue their abandonment claim under the 2006 DMA, Appellants filed a counterclaim and moved for summary judgment. Appellants contended under both the 1989 and 2006 DMA their mineral rights were not abandoned. Thus, they set forth specific arguments for each version of the act.

{¶ 31} As to the 1989 DMA they claimed 4 savings events. The first was the 1977 Notice of Preservation which preserved the whole interest in the oil and gas royalty, bonuses, and rentals. The second was a 1981 lease with Reliable Exploration & Drilling Company. The third was the 1988 certificate of transfer from the Dollie Christman estate transferring her interest to Nova Christman. The fourth was the 2007 certificate of transfer from Nova Christman's estate transferring the interest to Appellants.

{¶ 32} As to the 2006 DMA, Appellants' counterclaim specifically asked for Declaratory Judgment and Quiet Title under that version of the act. 9/23/14 Amended Counterclaim. Appellants claim to be the mineral holders and asserted their interest was preserved. In support of that position they referenced the Affidavits/Claims/Notices to Preserve Mineral Interest filed in December 2013 and August 2014. Those filings listed the Tomolonis-Christman 1967 conveyance and the 1945 Ward-Christman conveyance.

{¶ 33} While the 1989 version is inapplicable, Appellants' claim that their interest was not abandoned and was preserved under the 2006 DMA, is still a viable claim and was before the trial court in their counterclaim and in the summary judgment motion. In granting summary judgment for Appellees, the trial court disagreed with Appellants' claim to be holders of the oil and gas interest. The trial court specifically found the deeds through which they claimed to acquire interest did not transfer to them any interest. Whether or not the deeds Appellants referenced gave them the oil and gas royalty, bonus, and rental interests is the issue in the counterclaim, the summary judgment motions, and the trial court's ruling. The trial court essentially held Appellants were not holders and as such, their claims to preserve filed under the 2006 DMA had no effect.

{¶ 34} Consequently, although these assignments of error have merit and Appellees did not pursue the abandonment claim under the 2006 DMA, the resolution of these assignments does not mean the trial court's grant of summary judgment must be reversed and summary judgment entered for Appellants. The determination of whether summary judgment should have been granted for Appellants is addressed in the next two assignments of error.

Second Assignment of Error Ward-Christman Deed

"The Trial Court erred in failing to rule that the Ernest M. Ward, et ux, to Nova A. Christman deed conveyed to Nova A. Christman, the Appellants' father, '1/2 part of the royalty of all the oil and gas and 1/2 of all rentals and bonuses "under the subject premises".' "

{¶ 35} Appellants argue the undisputed evidence before the trial court demonstrated Ward conveyed his 1/2 interest of the oil and gas royalty, rentals, and bonuses to Nova Christman in 1945. Nothing presented to the trial court indicated Christman disposed of this property prior to his death. The undisputed evidence indicates the interest was transferred to Appellants upon Christman's death. The August 2014 Corrective Affidavit/Claim/Notice to Preserve Mineral Interest listed the 1945 Ward-Christman conveyance and preserved that interest.

{¶ 36} Appellees do not explicitly concede this assignment of error has merit. However, they do not present any arguments opposing this assignment of error in their appellate brief.

{¶ 37} The trial court did not reference the 1945 Ward-Christman deed in its judgment entry. Admittedly, Appellants did not claim this interest when they first filed their answer, counterclaim, and cross claim. This interest was not claimed until August 2014 in Appellants' Supplement to Summary Judgment. 8/25/14 Supplement. At that time, Appellants moved to amend their answer, counterclaim, and cross claim. 8/25/14 Request for New Briefing Schedule. Although Appellees opposed the request, the trial court granted it and permitted Appellants to file an amended answer, counterclaim, and cross claim. 9/9/14 Motion in Opposition; 9/9/14 J.E.; 9/23/14 Amended Answer, Counterclaim, and Cross Claim. Thus, the claimed 1/2 interest in oil and gas royalty, bonus, and rental interests from the Ward-Christman deed was before the trial court for consideration.

{¶ 38} As set forth above, in 1931, Ward conveyed the 117.33 acres to Ady. The deed contained a reservation for 3/4 interest of the oil and gas royalty, rentals, and bonuses. The deed also indicated the coal was excepted from the conveyance because it was already sold to Samuel W. Harper of Wheeling, West Virginia. In 1934, Ady conveyed the surface and oil and gas interest back to Ward. He did not reserve any interest. The deed, however, did reference the prior exception of coal. In 1936, Ward conveyed the 117.33 acres to Dow Mellott. However, in doing so, Ward reserved a 1/2 interest of the oil and gas royalty, rentals, and bonuses. This deed also indicated the coal was excepted from the conveyance because it was already sold.

{¶ 39} In 1945 Ward conveyed his reserved 1/2 oil and gas royalty, rental, and bonus interests in the 117.33 acres to Nova A. Christman. Defining the 1/2 interest, the deed described the 117.33 acres in the same manner it was described in previous deeds.

{¶ 40} In January 1977, Nova A. Christman and his wife Dollie Christman filed and recorded a notice of claim of interest in real estate. This document claimed the entire oil and gas royalty, rental, and bonus interests in the 117.33 acres. It listed the 1967 conveyance of 1/2 the interest from Tomolonis and the 1945 conveyance of the other 1/2 interest from the Wards.

{¶ 41} Dollie Christman died in 1985 and her real estate interest was transferred to Nova Christman by a Certificate of Transfer. This transfer included the interest underlying the 117.33 acres. The certificate of transfer was filed and recorded in August 1988.

{¶ 42} Nova Christman died 1992. His property was transferred to Appellants. Certificates of Transfer were filed and recorded in 2007 and 2012. The interest underlying the 117.33 acres was included in these transfers.

{¶ 43} Nothing in the record indicates Nova Christman disposed of the interest he acquired from Ward prior to his death. Therefore, given the above documents described and presented to the trial court, Appellants own 1/2 of the oil and gas interest through the Ward-Christman deed. The trial court erred in not holding as such.

{¶ 44} Appellants filed a Corrective Affidavit/Claim/Notice to Preserve Mineral Interest in August 2014. This notice listed the 1945 Ward-Christman oil and gas royalty, bonuses, and rentals conveyance. Accordingly, under the 2006 DMA, Appellants preserved this interest, and Appellants are entitled to summary judgment regarding this interest.

{¶ 45} This assignment of error has merit.

Third Assignment of Error Mellott-Tomolonis Deed

"The Court further erred in finding that the other 1/2 of the oil and gas interests and rights in this case were not obtained by Appellants' predecessor in title, Nova A. Christman; (A) Since, Ohio is an estoppel by warranty state; and/or (B) that the intent of the deed from Dow and Mary Mellott to John and Minnie Tomolonis, Nova A. Christman's predecessors in title, wherein the parent tract of 117.33 acres was conveyed subject to the exception and reservation of 1/2 of the oil and gas rights was merely a limitation of the Grantors, Dow and Mary Mellott's warranty clause in said deed."

{¶ 46} The arguments presented under this assignment of error primarily concern the 1936 Ward-Mellott deed and the 1943 Mellott-Tomolonis deed. However, a recitation of the transactions is necessary to understand the parties' positions.

{¶ 47} In 1936 Ward conveyed the 117.33 acres to Mellott, but reserved 1/2 of the oil and gas royalty, bonus, and rental interests. The reservations and exceptions in the warranty deed state:

Excepting and reserving the coal known as the Pittsburgh or No. 8 vein, the same having been sold to Samuel W. Harper of Wheeling, W.Va.
Also excepting 1/2 of the oil and gas royalty and 1/2 of all rentals and bonuses from the above grant.

1936 Deed.

{¶ 48} In 1943 Mellott conveyed the 117.33 acres to Tomolonis. That warranty deed has a provision that states:

Excepting and reserving the coal Known [sic] as the Pittsburgh or No. 8 vein, the same having been sold to Samuel W. Harper of Wheeling, W.Va. Also excepting 1/2 of all the oil and gas royalty and 1/2 of all rentals and bonuses from the above grant.

1943 Mellott-Tomolonis Deed.

{¶ 49} Five years later Tomolonis conveyed the surface to Conway, et al. That deed contains a provision that states:

The grantors reserve and except unto themselves, their heirs and assigns, the one half oil and gas, with the right to enter upon said premises for the purpose of producing the same. Also excepting and reserving the coal and mining rights and the oil and gas rights as herein reserved, excepted and conveyed by former owners of said premises.

1949 Tomolonis-Conway, et al. deed.

{¶ 50} In 1967 Tomolonis sold the 1/2 oil and gas interest to Nova and Dollie Christman. Tomolonis-Christman oil and gas deed.

{¶ 51} The question before us is whether the Mellott-Tomolonis deed conveyed the 1/2 interest of the oil and gas royalty, rentals, and bonuses to Tomonlonis, or did Mellott retain the 1/2 interest.

{¶ 52} Appellants assert the provision in the 1943 Mellott-Tomolonis deed was a recitation of the previous reservations by Ward; Mellott was not reserving 1/2 interest of the oil and gas royalty, rentals, and bonuses. Or in other words, the provision in the 1943 deed was a notice provision. Appellants contend it was Mellott's intent to sell the entire estate he owned. Appellants argue the intent can be derived from the subsequent deeds where Tomolonis reserved 1/2 of the minerals and then sold them to Christman. They also ask for this court to apply the Duhig rule to this case. The Duhig rule is a rule of estoppel; under the Duhig rule a grantor and his successors are estopped from claiming title in a reserved fractional mineral interest when to do so would, in effect, breach the grantor's warranty as to the title and interest purportedly conveyed to the grantee. Duhig v. Peavy-Moore Lumber Co. , 135 Tex. 503, 507-508, 144 S.W.2d 878, 880-881 (1940).

{¶ 53} Appellees argue the language of the Mellott-Tomolonis deed clearly reserves 1/2 interest of the oil and gas to Mellott. Thus, they contend we should not look at any previous or subsequent deeds. Further, they argue Duhig is not binding on this court, and should not be applied.

{¶ 54} The issue before us requires a review of the deed as a matter of law. Thus, our standard of review is de novo. Saunders v. Mortensen , 101 Ohio St.3d 86, 801 N.E.2d 452, 2004-Ohio-24. Under a de novo review, an appellate court may interpret the language of the written instruments, substituting its interpretation for that of the trial court. Children's Medical Center v. Ward , 87 Ohio App.3d 504, 622 N.E.2d 692 (2nd Dist.1993).

{¶ 55} Written instruments "are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. "The principles of deed construction dictate that a court presumes that a deed expresses the intentions of the grantor and grantee at the time of execution.* * *A court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous language of the deed." American Energy Corp. v. Datkuliak , 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463, ¶ 50 (7th Dist.). When determining the grantor's intent, a court must analyze the language used in the deed, "the question being not what the parties meant to say, but the meaning of what they did say, as courts cannot put words into an instrument which the parties themselves failed to do." Id. , quoting Larwill v. Farrelly , 8 Ohio App. 356, 360 (5th Dist. 1918).

{¶ 56} However, when the plain language of the written instruments is ambiguous, then a court can look to parol evidence to resolve the ambiguity and ascertain the parties' intent.

Illinois Controls, Inc. v. Langham , 70 Ohio St.3d 512, 521, 639 N.E.2d 771 (1994) ; City of Steubenville v. Jefferson Cty. , 7th Dist. No. 07JE51, 2008-Ohio-5053, 2008 WL 4416062, ¶ 22. This is a primary rule of contract construction. Envision Waste Services, LLC v. Cty. of Medina , 2017-Ohio-351, 83 N.E.3d 270, ¶ 15, quoting Michael A. Gerard, Inc. v. Haffke , 8th Dist. No. 98488, 2013-Ohio-168, 2013 WL 267296, ¶ 14.

{¶ 57} Terms in a contract are ambiguous if their meanings cannot be determined from reading the entire contract, or if they are reasonably susceptible to multiple interpretations. First Natl. Bank of Pennsylvania v. Nader , 2017-Ohio-1482, 89 N.E.3d 274, ¶ 25. Parol evidence is used only to interpret the terms, and not to contradict the terms. Id. , citing Blosser v. Enderlin , 113 Ohio St. 121, 134, 148 N.E. 393 (1925). "The decision as to whether a contract is ambiguous and thus requires extrinsic evidence to ascertain its meaning is one of law." Nader , quoting Ohio Historical Soc. v. Gen. Maintenance and Eng. Co. , 65 Ohio App.3d 139, 146, 583 N.E.2d 340 (10th Dist.1989).

{¶ 58} If parol evidence fails to clarify the meaning of the contract, then the contract is strictly construed against the drafter; interpreting the written instrument against the drafter is a secondary rule of contract construction. Envision Waste Services ; Cadle v. D'Amico, 2016-Ohio-4747, 66 N.E.3d 1184, ¶ 33 (7th Dist.) ("Construing a contract against the drafter is a secondary rule of contract construction, and is applicable when the primary rules of contract construction * * * fail to clarify the meaning of the contract."). "Applying this rule, an exception or reservation in a conveyance is construed in favor of the grantee rather than of the grantor.' " Galambos v. Estep , 5th Dist. No. 20016 AP 01 0004, 2016-Ohio-5615, 2016 WL 4591884, ¶ 15, quoting Pure Oil Co. v. Kindall , 116 Ohio St. 188, 202-203, 156 N.E. 119 (1927).

{¶ 59} Our analysis begins with the language used in the Mellott-Tomolonis deed. That deed states:

Excepting and reserving the coal Known [sic] as the Pittsburgh or No. 8 vein, the same having been sold to Samuel W. Harper of Wheeling, W.Va. Also excepting 1/2 of all the oil and gas royalty and 1/2 of all rentals and bonuses from the above grant.

1943 Mellott-Tomolonis Deed.

{¶ 60} We conclude the plain language of this deed indicates Tomolonis acquired 1/2 of the oil and gas royalty, rental and bonus interest. The Mellott-Tomolonis deed clearly indicates the conveyance does not include the coal because it was previously sold to Harper. The language also clearly indicates the conveyance does not include 1/2 of the oil and gas royalty, rental, and bonus interests. The language of the deed does not indicate who held the 1/2 oil and gas interests, rather it only indicates the 1/2 oil and gas interests were excepted from the deed. The language of the deed does not account for the other 1/2 interest. Since there is no accounting for the other 1/2 interest and the deed does not indicate the conveyance is for the surface only, the plain language of the Mellott-Tomolonis deed is that the surface and 1/2 of the oil and gas interests were conveyed to Tomolonis.

{¶ 61} In 1949, Tomolonis conveyed the surface to Conway, et al. In that deed Tomonlonis accounted for the entire oil and gas estate; Tomolonis specifically referenced the prior reservations and then reserved the 1/2 interest he acquired from Mellott. In 1967 Tomolonis sold the 1/2 oil and gas interest to Nova and Dollie Christman. Tomolonis-Christman oil and gas deed. In January 1977, Nova A. Christman filed and recorded a notice of claim of interest in the real estate. This document claimed the entire oil and gas royalty, rental, and bonus interest in the 117.33 acres. It listed the 1967 conveyance of 1/2 interest from Tomolonis, and the 1945 conveyance of the other 1/2 interest from Ward. Dollie Christman died in 1985 and her real estate interest was transferred to Nova Christman by a Certificate of Transfer. This transfer included the interest underlying the 117.33 acres. Nova Christman died 1992. His property was transferred to Appellants, which included the oil and gas royalty, bonus, and rental interests for the 117.33 acres. Accordingly, Appellants own the 1/2 oil and gas interest Tomolonis acquired from Mellott.

{¶ 62} Appellees insist the plain language of the deed indicates Mellott reserved 1/2 of oil and gas royalty, rental, and bonus interests and they have acquired this interest. We disagree. The use of the word except rather than reserve does not indicate Mellott was excepting the interest for himself. American Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463, ¶ 75 (7th Dist.), quoting Ricelli v. Atkinson , 99 Ohio App. 175, 132 N.E.2d 123 (1955) (Reservation and exception have two different meanings; an exception is a retention of an existing right, while a reservation is a creation of a new right or interest. However, over the years the two terms have often been used interchangeably and thus, a term's use does not by itself establish whether an exception or reservation has been created.). Furthermore, the language used to except the oil and gas royalty, rental, and bonus interests did not indicate who reserved or excepted that interest.

{¶ 63} The language does state the interest is excepted from "the above grant." This language could mean one of two things. It could mean the grantor was reserving or excepting the interest for himself. Or, it could mean the grantor was putting the grantee on notice of a previous reservation or exception because the sentence pertaining to the oil and gas interest is part of a two sentence paragraph where the first sentence is clearly a notice provision indicating the coal is not part of the conveyance as it was previously conveyed to Harper. Therefore, the second sentence indicating 1/2 of the oil and gas royalty, rental, and bonus interest are excepted from the conveyance could also be a notice provision of a prior exception by someone else in the chain of title. Therefore, as to whether or not Mellott excepted the 1/2 interest for himself is not clear. Rather, it is ambiguous.

{¶ 64} Since it is ambiguous we can look to parol evidence. Parol evidence in this instance is the chain of title-the deeds prior and subsequent to the Mellott-Tomolonis deed. The deed subsequent to the Mellott-Tomolonis deed is the Ward-Mellott deed. That deed indicates when Ward sold Mellott the surface, Ward excepted 1/2 oil and gas royalty, rental, and bonus interests. The Ward-Mellott deed refers to Ward's excepted 1/2 interest in a paragraph by itself. The paragraph preceding the exception is a notice provision of the previous conveyance of the coal interest to Harper. Thus, the Ward-Mellott deed uses separate paragraphs to distinguish between a notice of a prior conveyance/reservation/exception and new reservation/exception. If that reasoning is applied to the Mellott-Tomolonis deed then it leads to the conclusion that the clause at issue in this case is only a notice provision. It is not an indication Mellott was reserving 1/2 oil and gas royalty, rental, and bonus interests.

{¶ 65} Regardless, even if the two sentences were two separate paragraphs, we could not reach the conclusion Mellott reserved the 1/2 oil and gas royalty, rental, and bonus interests for himself. The chain of title clearly indicates Mellott did not own the entire oil and gas interest. Mellott only owned a 1/2 interest. The deed only accounted for a 1/2 interest. Thus, as stated above, the plain language of the deed conveyed the surface and the other 1/2 interest. Therefore, Mellott could not have retained 1/2 of the oil and gas royalty, bonus, and rental interests, and still convey 1/2 of the oil and gas royalty, bonus, and rental interests to Tomolonis.

{¶ 66} Furthermore, transactions following the Mellott-Tomolonis deed indicate it was Mellott and Tomolonis' intent for Tomolonis to acquire 1/2 the oil and gas royalty, bonus, and rental interests, not for Mellott to reserve the interest. When Tomolonis conveyed the surface to Conway, et al. in 1949, Tomolonis specifically referenced the prior reservations and then reserved the 1/2 interest he acquired from Mellott. In that deed Tomonlonis accounted for the entire oil and gas estate. Moreover, Tomolonis later sold the oil and gas interest to Christman. In January 1977, Nova A. Christman filed and recorded a notice of claim of interest in real estate. This document claimed the entire oil and gas royalty, rental, and bonus interest in the 117.33 acres. It listed the 1967 conveyance of 1/2 the interest from Tomolonis, and the 1945 conveyance of the other 1/2 interest from Ward. In 1981, Nova and Dollie Christman entered into a lease with Reliable Exploration and Drilling Company. This lease included the oil and gas interest in the 117.33 acres along with other parcels of land. Dollie Christman died in 1985 and her real estate interest was transferred to Nova Christman by a Certificate of Transfer. This transfer included the interest underlying the 117.33 acres. Nova Christman died 1992. His property was transferred to Appellants, which included the oil and gas royalty, bonus, and rental interests for the 117.33 acres. There was no evidence submitted that Mellott owned this interest.

{¶ 67} Therefore, the plain language of the 1943 deed indicates Tomolonis acquired 1/2 oil and gas royalty, bonus, and rental interests, and the chain of title indicates Mellott did not reserve 1/2 oil and gas royalty, bonus, and rental interests for himself.

{¶ 68} However, even if we are incorrect and Mellott did reserve or except his half interest, that reservation or exception fails because Mellott violated the warranty of title and Mellott and his successors in interest are estopped from claiming title to the reserved fractional interest. This conclusion is based on the ideology underlying the Duhig rule.

{¶ 69} The Duhig rule is a Texas rule that was created in 1940. It is a rule of estoppel; under the Duhig rule a grantor and his successors are estopped from claiming title in a reserved fractional mineral interest when to do so would, in effect, breach the grantor's warranty as to the title and interest purportedly conveyed to the grantee. Duhig , 135 Tex. 503, 144 S.W.2d 878. Recently, a Texas Appellate Court explained Duhig :

In Duhig , the granting clause purported to convey all of the land and minerals, and the reservation clause reserved a one-half mineral interest in the grantor, Duhig. Id. at 880. The warranty deed failed to mention that Duhig did not own all of the minerals and that a prior owner had also reserved a one-half interest. See Id. Thus, because the warranty deed did not mention the third-party interest in the minerals, the grantee expected that the conveyance included a one-half mineral interest. The Duhig court explained that in this situation, the grantor breaches his warranty in the warranty deed by appearing to convey more than he actually did. See Id. The court reasoned that because the grantor holds "the very interest, one-half of the minerals, required to remedy the breach," Duhig , 144 S.W.2d at 880, the grantor should be "estopped from asserting a claim to that ½ mineral interest because of the prior outstanding reservation and the deed's purported conveyance of all of the minerals less only a ½ interest." Gore Oil Co. v. Roosth , 158 S.W.3d 596, 601 (Tex.App.-Eastland 2005, no pet.) (discussing Duhig ).

Combest v. Mustang Minerals, LLC , 502 S.W.3d 173, 184 (Tex.App.2016).

{¶ 70} Appellees assert Duhig is distinguishable. We disagree. The Duhig deed contained a description by metes and bounds. Duhig, 135 Tex. at 506, 144 S.W.2d 878. After that description was an indication the tract of land was formerly owned by the Talbot-Duhig Lumber Company. Id. After the habendum and the clause of general warranty and constituting the last paragraph in the deed, was the reservation of an undivided one-half interest in and to all mineral in the described land. Id. Appellees contend in the matter at hand the warranty follows the granting clause which includes the Mellott's reservation. Therefore, Mellott was only warranting the surface interest. This logic, however, fails to acknowledge the deed when considered by itself does not account for the entire oil and gas estate and thus, it appears to convey to Tomonlonis 1/2 of the oil and gas estate not mentioned in the reservation. This is similar to Duhig where the entire estate was not explicitly accounted for in the deed.

{¶ 71} Furthermore, we note the Duhig rule has been accepted by the courts of at least seven states: Alabama, Colorado, Mississippi, North Dakota, Oklahoma, and Wyoming, and probably Louisiana. 1 H. Williams & C. Meyers, Oil and Gas Law , Section 311, 580.33 (2012). Likewise, other states have developed their own version of the Duhig rule. For instance, Arkansas, in determining the original grantor's reservation failed in a circumstance similar to the one before this court, did not adopt the Duhig rule, but explained:

Therefore, the proper procedure to follow in cases which do not involve the original grantor and his immediate grantee, as here, is to arrive at the meaning of the deed according to rules of objective construction, which we now hold to include application of the Duhig rule. Subjective considerations are not appropriate in such cases. Accordingly, with respect to such reservations contained in warranty deeds, a subsequent grantee is to receive that percentage of mineral interest in the land not reserved to the grantor, since the deed purports to deal with 100% of the minerals. If both the grant and reservation cannot thereby be given effect, the reservation must fail and the risk of title loss is on the grantor.

Peterson v. Simpson , 286 Ark. 177, 690 S.W.2d 720, 723 (1985) (stating it was not necessary to accept the Duhig analysis in order to accept the Duhig result).

{¶ 72} Our case is similar to Duhig and Peterson . The deeds involved are all warranty deeds. Mellott conveyed the surface and the language of the deed could mean he reserved 1/2 oil and gas royalty, bonus, and rental interests. The deed does not indicate the other 1/2 oil and gas royalty, bonus and rental interests had previously been reserved. Thus, without mentioning the other 1/2 oil and gas interest, it appears Mellott was conveying that interest to Tomolonis. However, from the chain of title, it is apparent Mellott only owned 1/2 the oil and gas interest. This Mellott-Tomolonis transaction occurred in 1943. Since that time the property has changed hands multiple times-Tomolonis sold the surface to Conway et al. and reserved the alleged 1/2 interest they received from Mellott, then Conway et al. sold the surface to Dietrich, who later sold the surface Urbanek, who later sold the surface to Stahl, who then sold a portion of the surface to Appellees. Tomolonis sold the purported 1/2 oil and gas interest they reserved to Christman in 1967. Thus, we are not dealing with the original grantor and grantee, which is similar to Peterson . In that case, the Arkansas Supreme Court found, "If both the grant and reservation cannot thereby be given effect, the reservation must fail and the risk of title loss is on the grantor." This is the same result the Duhig rule requires.

{¶ 73} Although Duhig is not precedent in Ohio and has not been applied or discussed by any Ohio Appellate Courts or the Ohio Supreme Court, we find its reasoning and the Peterson reasoning persuasive. Therefore, even if Mellott did reserve 1/2 oil and gas royalty, bonus, and rental interests in the 1943 Mellott-Tomolonis deed, the reservation fails. It fails because Mellott breached the title of warranty and because if the grant and the reservation both cannot be given effect, the reservation must fail.

{¶ 74} For the above stated reasons, this assignment of error has merit. Tomolonis acquired 1/2 oil and gas royalty, rental, and bonus interests from Mellott in 1943. That interest was later conveyed to Dollie and Nova Christman. Appellees inherited this interest when the Christmans died and as such now own this 1/2 interest. The trial court erred in granting Appellees' summary judgment motion as to this 1/2 oil and gas interest and erred in denying Appellants' motion for summary judgment as to this 1/2 oil and gas interest.

Conclusion

{¶ 75} All assignments of error have merit. The trial court's grant of summary judgment for Appellees is reversed and the matter is remanded. Upon remand the trial court is instructed to enter summary judgment in Appellants favor; Appellants own the entire oil and gas royalty, rental and bonus interest.

Donofrio, J., concurs.

Waite, J., concurs.

      These Defendants filed answers and multiple other filings in the trial court proceedings. However, they did not appeal the trial court's decision.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: T.M.M., DOB: 11/28/02, T.D.M., DOB: 6/15/04.
    NO. 17 CO 0025
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: December 21, 2017
    Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, Ohio 44484, For Plaintiff-Appellant
    Atty. Albert A. Palombaro, 4822 Market St., Youngstown, Ohio 44512, For Defendant-Appellee
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Appellant Brian McCormack ("the father") appeals the decision of the Columbiana County Common Pleas Court, Juvenile Division, denying his motion for shared parenting and his motion to hold Appellee Jennifer Lease ("the mother") in contempt for interfering with his parenting time. The father contends the court's failure to implement a remedy addressing his youngest child's refusal to visit him effectively deprived him of all parenting time with the child. He takes issue with various findings made by the court, including whether the mother should have been held in contempt and whether shared parenting was in the children's best interests. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} The parties have two children: Child A, born in 2002, and Child B, born in 2004. In 2007, the father filed a petition to recognize a parental relationship, establish parental rights and responsibilities, and formalize parenting time. An agreed entry established parenting time in an amount no less than the local standard schedule, which granted parenting time to the nonresidential parent every other weekend plus a midweek visit one week and two midweek visits the next week. (9/18/07 J.E.) The midweek visits were terminated during the school year by an agreed entry in 2009, and the standard schedule was reinstated in 2013. (6/15/06 J.E.); (9/13/13 J.E.) The midweek parenting time was reduced to one day a week in 2014. (8/5/14 J.E.)

{¶ 3} On August 5, 2016, the mother filed a motion to modify the father's parenting time. She sought to eliminate the midweek visit, claiming it interfered with school work and extracurricular activities, partly due to travel time from their house in Salem to the father's house in Poland. The mother also filed a motion to show cause against the father, alleging issues with summer parenting time and phone access.

{¶ 4} On the day the motions were to be heard, September 9, 2016, the father filed a "motion to modify the current allocation of parental rights and companionship" to shared parenting; he stated there were substantial changes of circumstances due to his new, less-demanding work schedule and described the current plan as disjointed. His proposed shared parenting plan sought alternating weeks of parenting time. He filed a motion to modify child support to reflect his desired additional time with the children. The father also filed a motion to show cause against the mother, alleging she manipulated the children's schedule to prevent his exercise of parenting time, interfered with communication, and refused to communicate with the father except by letter. As to Child B (who was twelve years old), the father also claimed the mother refused to require this child to visit with him.

{¶ 5} On the day the cross-motions were to be heard, in November 2016, the case was continued for the appointment of a guardian ad litem. The hearing proceeded before a magistrate on February 21, 2017. The mother testified she did not work as she was receiving permanent total workers' compensation for a back injury. The children live with her and her boyfriend, whom she described as fulfilling the role of a step-father for the children. The children have relatives living in the vicinity of her house. The mother acknowledged she and the father communicated poorly; she believed he did not listen when they talk and would not allow her to speak, even when she called about a simple issue. (Tr. 39). She used letters for most communication with the father.

{¶ 6} She did not consent to the father's shared parenting plan and opined it would be "too much of a hassle" for the children. For example, Child A stayed after school most days for weight-lifting, but the father's plan proposed he would pick up Child B from school during his week and wait until Child A was done with his activity. (Tr. 42). She believed even the midweek visit (during the school year) was hard on the children due to their schedules. (Tr. 11-12). Child A was about to begin baseball which would be followed by football. (Tr. 9-10, 13). Child B would have soccer in the summer and fall and talked about starting basketball thereafter. (Tr. 13). The mother pointed out that the father lives 40 to 45 minutes from the children's school. (Tr. 14). The father confirmed this estimate and said he would drop them off and pick them up at school on his way to and from work in Steubenville (from his home in Poland). Although the children live five minutes from their school, the father believed the children spent 30-35 minutes on the bus to school. (Tr. 62).

{¶ 7} The mother disclosed Child B began resisting visits with the father around Christmas of 2015. At that time, she said she spent three days talking Child B into spending the holidays with his father. She called the father to explain the delicate situation and lamented the father's refusal to listen to her while he complained about his own hurt feelings. (Tr. 32, 39). When the father was exercising two weeks of summer parenting time in June, the mother said the police assisted her in retrieving the children so she could exercise time with Child B on his birthday. Child B resisted returning to the father's house despite the mother's requests; however, her boyfriend was able to convince the child to return for the summer parenting time. (Tr. 26).

{¶ 8} When asked what she has done about Child B's refusal to visit, which began in July 2016, the mother said: "I have called the Sheriff's Department, nobody will get involved. They will not force the kid out of the car. I cannot get the kid to go. I have talked to him. I have pleaded with him. Nothing." (Tr. 36-37). The mother testified she never told the child he did not have to visit but rather encouraged him to visit his father. (Tr. 40-41). She said her boyfriend also tried to convince Child B to visit with the father. (Tr. 31). The mother testified the child has many reasons for his refusal that have "built up." She was unaware of some of the child's reasons, opining he is "holding in" some issues. (Tr. 41). She knew about other reasons, including: a threat to return the child's basketball hoop and keep his birthday money; money missing from the child's wallet; a threat to "bash his teeth in" after the child was disrespectful; the father said the mother failed to provide the child proper footwear in front of other parents; flea bites; animal waste in the child's bed; the girlfriend told the child about court proceedings involving her child's father; the girlfriend accused the mother of lying; they suggested they would put the mother in jail; the girlfriend's daughter scratched the child's neck; and the girlfriend's daughter threw a piece of wood at him causing a bruise on his back. (Tr. 32-33).

{¶ 9} The father lived with his girlfriend, who had shared parenting of her eleven-year-old daughter (one week on and one week off). They lived in a three bedroom, one bathroom rental house in Poland Village. His family did not live in the area. The father changed branches at his employment (from Pittsburgh to Steubenville) and stated his workload was reduced and can be partly performed at a local office or at home. (Tr. 110). The father and his girlfriend disputed knowledge of many of the issues outlined by the mother as to Child B. The father testified that he has been unable to exercise parenting time with Child B since he brought the child home on July 8, 2016.

{¶ 10} He explained an argument which occurred as they were leaving his house that day: the father's girlfriend asked why Child B appeared to be "hiding" outside; she demanded the child hand over his phone and his iPod as they were entering the vehicle; the child refused to relinquish his iPod; the father declared he would look at anything he wanted on the child's electronic devices; the father instructed the child not to bring the device back to the father's house; the father advised the child he would not be granted access to his phone when he returned; and the father indicated he would be returning the basketball hoop they just purchased with the child's birthday money. (Tr. 54-55).

{¶ 11} Although the father's visits with Child A (who was 14 years old) were uninterrupted, Child B refused to return and would hang up the phone if the father tried to call him. (Tr. 60). He noted Child A seemed to enjoy the individual time with him for the first several months after Child B stopped visiting. (Tr. 77).

{¶ 12} The father sought shared parenting as he wanted more time with the children and believed his plan would eliminate petty issues and provide stability. (Tr. 63, 76). He said the parents would not have to meet for transfer because one parent would get the children to school Monday morning and the other would pick them up at school Monday afternoon. (Tr. 76). As discussed further infra, the father mentioned counseling for him and Child B, acknowledging he did not file a motion seeking counseling. The father also stated the guardian ad litem tried to arrange for him to meet with Child B the prior week but the child refused. (Tr. 94, 97).

{¶ 13} The guardian ad litem testified she tried to resolve the situation with Child B, but he would not "budge" or discuss the situation. When she asked whom he would speak to about the situation, the child indicated he would talk to the judge. (Tr. 149). He repeated this when she tried to arrange dinner with the father, and she then explained to him it would be a magistrate. (Tr. 154). She did not believe the mother exercised undue influence over the child regarding the situation. (Tr. 150-151, 161, 163). After she explained the father's shared parenting plan to the children, they voiced they did not want to switch to shared parenting (as it would be "too much") but agreed with the current schedule (which included every other weekend and one midweek visit). (Tr. 155-157). The guardian ad litem recommended the current court-ordered schedule as well. (Tr. 156). The father's attorney asked if she believed counseling with the child and the father would be appropriate, and she responded in the affirmative. (Tr. 151). The magistrate then invited the attorneys to remain for the in camera interview with the children. (Tr. 165).

{¶ 14} On March 24, 2017, the magistrate's decision was released, setting forth various findings and conclusions. The court adopted the Magistrate's decision as its own entry the same day. The court denied the mother's motion to eliminate the father's midweek parenting time and the father's request for shared parenting. The court concluded the mother should remain the residential parent and found shared parenting and/or a designation of the father as residential parent was not in the children's best interests. The court also denied both parties' motions to hold the other in contempt. The court advised the parties to strictly comply with the prior parenting time order.

{¶ 15} The father filed timely objections. He contested: the mother's testimony that she "pleaded" with Child B to visit his father; the failure to make findings on what Child B said during the in camera interview as to why he refused to visit the father; the denial of the father's motion for contempt against the mother; the failure to implement a remedy such as reconciliation counseling; the finding that the mother is more likely to facilitate visitation; the failure to find changed circumstances due to the child's refusal to visit; the failure to find it would be in the children's best interests to change to shared parenting; and the cumulative claim that this all resulted in a de facto elimination of parenting time with Child B. On July 13, 2017, the trial court overruled the father's objections.

ASSIGNMENT OF ERROR

{¶ 16} The father sets forth one assignment of error:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN EFFECTIVELY TERMINATING APPELLANT'S PARENTAL RIGHTS CONTRARY TO LAW."

{¶ 17} In framing the issue presented, the father claims the court's decision maintains the status quo which in actuality means he will not be able to exercise parenting time with Child B because this child has refused to attend the visits. The father sets forth multiple arguments about the decision on his motions. The trial court denied two motions filed by the father: a motion to show cause asking to hold the mother in contempt and a motion to reallocate parenting time to shared parenting.

{¶ 18} The trial court's decision on contempt is not to be disturbed in the absence of an abuse of discretion. State ex rel. Celebrezze v. Gibbs , 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991). Likewise, a reviewing court will not overturn the trial court's decision on custody, whether an initial allocation or a modification, unless the trial court abused its discretion. Davis v. Flickinger , 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997) ; Pater v. Pater , 63 Ohio St.3d 393, 396, 588 N.E.2d 794, 797 (1992). An abuse of discretion exists if the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is unreasonable if it is unsupportable by any sound reasoning process. See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) (abuse of discretion review typically involves a determination of whether a decision was unreasonable). "When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court." In re Jane Doe 1 , 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

{¶ 19} We begin with the argument that the court erred in denying the father's motion for contempt against the mother based upon his allegation the mother willfully withheld or otherwise prevented parenting time between the father and Child B. He discounts the mother's testimony that she "pleaded" with Child B to visit the father.

{¶ 20} The mother's testimony on this topic was set forth supra: she expended great effort to change the child's mind when he first wanted to stop visiting the father; she failed a few months later when the child refused again; her boyfriend talked the child into returning for the father's summer parenting time after his birthday; when this parenting time concluded with an argument between the child and the father's girlfriend and between the child and the father, the child adamantly refused to visit the father; the mother said she pleaded with him; she said she did not discourage the child from visiting the father but rather encouraged him to accompany his brother on the visits; she unsuccessfully asked the police for help removing the child from her car; and her boyfriend tried to convince the child as well. Both parents have refrained from resorting to dragging the child from the mother's car to the father's car. The guardian ad litem opined the child's decision was not a result of improper influence on the mother's part. We also note Child A, who is two years older than Child B, attended all visits in satisfaction of the father's court-ordered parenting time.

{¶ 21} The mother's credibility was a matter within the province of the fact-finder. See Davis , 77 Ohio St.3d at 418-419, 674 N.E.2d 1159 ("This 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."). "[T]he trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Id. at 418, 674 N.E.2d 1159. The trier of fact "is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony" and the appellate court "should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court." Id. , quoting Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984). It was not unreasonable, unconscionable, or arbitrary to refuse to hold the mother in contempt for the twelve-year-old child's refusal to cooperate in the parenting time transfer.

{¶ 22} Next, we address the argument that the magistrate, after conducting the in camera interview of Child B and finding the child refused to visit his father, should have explained why Child B refused to visit the father. The statute applicable to the allocation of parental rights, whether initial or modification proceedings, provides:

In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.

R.C. 3109.04(B)(1). See also R.C. 3109.051(C) (in determining parenting time). If the court interviews a child: "The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child." R.C. 3109.04(B)(2)(a).

{¶ 23} "The interview shall be conducted in chambers, and no person other than the child, the child's attorney, the judge, any necessary court personnel, and, in the judge's discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview." R.C. 3109.04(B)(2)(c). See also R.C. 3109.04 (B)(3) ("No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child.")

{¶ 24} "If the court determines that it would be in the best interests of the child to determine the child's wishes and concerns with respect to the allocation, it shall proceed to make that determination." R.C. 3109.04(B)(2)(b). Compare this to the preceding sentence in R.C. 3109.04(B)(2)(b) : "If the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child's wishes and concerns with respect to the allocation, it shall not determine the child's wishes and concerns with respect to the allocation and shall enter its written findings of fact and opinion in the journal." From this, it has been concluded, a trial court is not required to issue findings of fact pertaining to an in camera interview unless the court decides not to determine the child's wishes and concerns with respect to the allocation. Donovan v. Donovan , 110 Ohio App.3d 615, 619, 674 N.E.2d 1252 (12th Dist.1996)

{¶ 25} The statutory best interest test for allocating parental rights includes the following factor: "If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court * * *." R.C. 3109.04(F)(1)(b). The next factor concerns the interaction and interrelationship with certain individuals. See R.C. 3109.04(F)(1)(c). Addressing this factor, the magistrate found Child B refuses to visit or be involved with the father. Elsewhere, the magistrate found the relationship between the father and Child B "is clearly estranged at this point." Referring to R.C. 3109.04(F)(1)(b), the magistrate determined, "Both children wished to continue to live with their mother under the current arrangement." The court thus made a determination of the child's wishes from what the magistrate learned at the in camera interview. The attorneys were invited to stay for the interview; whether they accepted the invitation is unknown.

{¶ 26} The in camera interview is considered confidential. As the father's brief points out, this confidentiality is bolstered by a local rule. Pursuant to Columbiana County Juvenile Court Rule 9.7, the record or transcript of the in camera interview "shall be sealed, to be opened only by the Court or upon order of the Court." The local rule also states: "Attorneys may have access to the transcript of the child's interview only upon written motion and judgment entry signed by the Court" and "The parents shall have no access to the report of the interview, even if the record has been transcribed for purposes of appeal or objections."

{¶ 27} If the trial court explained in detail the reasoning behind the child's wishes expressed at the interview, confidentiality could be negatively affected. The father is seeking any details the magistrate learned about why Child B refused to visit him. Citing confidentiality principles surrounding the in camera interview and the resulting transcript, the Fifth District overruled a party's argument that "the magistrate and the trial court erred and abused their discretion by failing to make specific findings of fact developed in the in-camera interview of the parties' minor children and in sealing the record of the proceeding * * * *." Lawson v. Lawson , 5th Dist. No. 13-CA-8, 2013-Ohio-4687, 2013 WL 5761520, ¶ 51-58. See also Myers v. Myers , 170 Ohio App.3d 436, 2007-Ohio-66, 867 N.E.2d 848, ¶ 46-55 (reviewing other districts). Similarly, the Twelfth District overruled an argument about a sealed in camera transcript where it was claimed "the parties were not put on notice of any accusations made" by the children during the in camera interview. Willis v. Willis , 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d 878, ¶ 15 (12th Dist.).

{¶ 28} Although the court may reveal the child's choice of residential parent, "all confidentiality from the in camera interview is not lost or illusory." Chapman v. Chapman , 2d Dist. No. 21652, 2007-Ohio-2968, 2007 WL 1721462, ¶ 28. See also Nentwick v. Nentwick , 7th Dist. No. 96-JE-27, 1998 WL 78663 (Feb. 18, 1998) (rejecting an argument about a sealed transcript of an in camera interview). The magistrate did not abuse its discretion in failing to detail what was learned from Child B during the in camera interview, besides his preference that he remain living with his mother under the current arrangement.

{¶ 29} The father's brief also suggests the trial court should have conducted its own in camera interview of the children, citing Schottenstein v. Schottenstein , 10th Dist. No. No. 00AP-1088, 2001 WL 1511949. An in camera interview is only mandatory upon request of a party. R.C. 3109.04(B). This requirement is satisfied when a magistrate conducts the interview; this is the nature of the magistrate's position. See Juv.R. 40(C)(1)-(2) (juvenile court magistrates are authorized to determine any motion in any case and to conduct the trial of any case that will not be tried to a jury {with the exception of a serious youthful offender case} and to do everything necessary for the efficient performance of those responsibilities). See also Civ.R. 53. The father's objections did not ask the trial court to subject his children to another in camera interview. Compare Schottenstein , 10th Dist. No. 00AP-1088 (where the children, who were named as parties, and the mother objected to the magistrate's custody decision and requested the trial judge to conduct his own interview of the children and where additional evidence arose after the magistrate's hearing).

{¶ 30} "Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification. A court may hear a previously-referred matter * * *." Juv.R. 40(D)(4)(b) (or return a matter to a magistrate or take additional evidence ). The decision to hear a previously-referred matter is discretionary with the court. See, e.g., Snyder v. Snyder , 8th Dist. No. 95421, 2011-Ohio-1372, 2011 WL 1048035, ¶ 39 ; Noe v. Noe , 5th Dist. No. 07-COA-047, 2008-Ohio-1700, 2008 WL 962876, ¶ 17. There is no indication a subsequent in camera interview was required or would have been useful in ruling on the objections presented in this case. Contrary to the father's argument, the trial court was not required to sua sponte hold its own in camera interview in this previously-referred matter.

{¶ 31} On his shared parenting request, the father asserts Child B's refusal to visit him for a continuous and extended period of time constituted a sufficient change of circumstances to justify a modification of parental rights. Initially, we observe the father's motion to modify the allocation of parental rights to shared parenting said the change of circumstances was his new flexibility in employment; nevertheless, the contempt request in the same motion alleged the mother was refusing to require the child to attend visitation, and there was testimony on the child's refusal to visit for many months.

{¶ 32} The court made the following notable statements: (1) "whether or not any change in circumstances can be found in the present case, which the Court does not find, the best interests of [the children] requires that the mother remain their residential parent and legal custodian and that the father's request for shared parenting be denied"; and (2) "Even if a change of circumstances can be found, which this Court does find, modification is not in the best interests of these children as demonstrated by analysis of the factors [referring to prior analysis] * * * In any event, shared parenting is not in the children's best interests." (3/24/17 J.E. at 10-11).

{¶ 33} First, we note the conflict between the two clauses as to whether the court found changed circumstances; one says "does not find" and one says "does find." Second, we note the court specifically made an alternative holding denying the father's request "whether or not any change in circumstances can be found" due to the court's decision on the children's best interests. If shared parenting is not in the children's best interests, then changed circumstances would not assist the father's cause. This leads to the father's next argument contesting the court's finding that shared parenting was not in the children's best interests and/or it was in the children's best interests to designate the mother as the residential parent.

{¶ 34} But first, we must point out the need to apply the changed circumstances test was also made as an alternative holding. Although the father proceeds as though this is a modification of parental rights subject to the stricter changed circumstances test, the trial court expressed uncertainty as to whether this proceeding would be considered a modification since there was no prior court order specifically allocating parental rights and responsibilities to the mother. As the court pointed out, the mother was the residential parent and legal custodian by operation of a statute, which provides: "An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian." R.C. 3109.042(A) (also stating, "A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.").

{¶ 35} Where the mother is the residential parent under this statute and no prior court order designates her as such, the father's request for allocation of parental rights is considered an initial request rather than a request for modification of a prior decree. In re J.K. , 7th Dist. No. 14 CA 899, 2014-Ohio-5502, 2014 WL 7142540, ¶ 26. Although prior entries provided the father visitation or companionship (now called parenting time), the entries did not specifically designate the mother as the residential parent. This court has previously concluded such a scenario (involving a prior court order granting the father's companionship request and a subsequent request by the father for "reallocation of parental rights") still qualifies as an initial allocation. See In re S.S.L.S. , 7th Dist. No. 12 CO 8, 2013-Ohio-3026, 2013 WL 3776319, ¶ 6, 15-16.

{¶ 36} In any event, as aforementioned, the trial court specifically made an alternative holding as to the children's best interests. The court ruled shared parenting was not in the children's best interest and the children's best interests require the mother remain the residential parent. The father contests the trial court's weighing of the best interest factors in reaching this conclusion. Specifically, he contends the court abused its discretion in finding the mother was "more likely to honor and facilitate parenting time rights or visitation and companionship rights." The father urges shared parenting would promote continuity and bonding. He complains the mother flatly rejected his proposed plan without articulating convincing reasons.

{¶ 37} "In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to" those listed in R.C. 3109.04(F)(1)(a)-(j). These factors must also be considered in considering shared parenting under R.C. 3109.04(F)(2), along with additional factors provided in division (F)(2). The court reviewed some of the testimony presented at the hearing. The court then made findings with regard to the statutory factors it found pertinent on the issue of the children's best interests.

{¶ 38} The court set forth the wishes of the parents regarding the children's care. See 3109.04(F)(1)(a). The court disclosed the children's wishes as to the allocation of parental rights and responsibilities, stating they both wished to continue to live with their mother under the current arrangement and they both "want to continue the current parenting and companionship arrangement." See 3109.04(F)(1)(b). As to the children's interaction and interrelationship with parents, siblings, and any other person who may significantly affect the children's best interests, the court found: Child A "enjoys a good relationship with both of his parents and their respective paramours and their extended families"; Child B "enjoys a good relationship with his mother and her paramour. However, [he] refuses to visit or be involved with his father"; and the children are "well bonded" and enjoy a good relationship with each other. See 3109.04(F)(1)(c). On this topic, the court noted the estranged relationship between the father and Child B weighs against the proposal for the child to live with the father every other week and it would be inappropriate to separate the children further (for instance, by granting shared parenting as to only Child A). The court found both children were well adjusted to their home, school, and community, noting the children's involvement in their school district socially and academically. See 3109.04(F)(1)(d). Mental and physical health was not "a significant issue when it comes to the ability to parent these children." See 3109.04(F)(1)(e).

{¶ 39} As criticized by the father, the court found the mother was the parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights. See 3109.04(F)(1)(f). Still, the court did not find a continuous and willful denial of court-ordered parenting time by either parent, characterizing many of the parenting time complaints as "petty squabbles." See 3109.04(F)(1) (other relevant factors can be considered), (F)(1)(i) (continuous and willful denial by the residential parent). Contrary to the father's contention, these two findings are not contradictory. In other words, the court was not required to state the father continuously and willfully denied the mother time in order to believe the mother was more likely to honor and facilitate court-approved parenting time.

{¶ 40} The court found the factor regarding failure to make required child support payments was inapplicable. See 3109.04(F)(1)(g). The next factor, involving certain conviction or adjudications, was also found to be inapplicable. See 3109.04(F)(1)(h). The court did not find either parent has established a residence, or is planning to establish a residence, outside this state. See 3109.04(F)(1)(j).

{¶ 41} As to the additional shared parenting best interest factors, the court pointed out the parents have no ability to communicate, cooperate, or make decisions jointly with respect to the children. See 3109.04(F)(2)(a). The court "doubt[ed]" the father's ability to encourage the sharing of love, affection, and contact between the child and the mother. See 3109.04(F)(2)(b). The court found inapplicable the factor regarding a history of abuse, domestic violence, or parental kidnapping. See 3109.04(F)(2)(c). The geographic proximity of the parents was considered impractical as it related to the proposed shared parenting plan due to the distance of the father's house to the school (45 minutes one way). See 3109.04(F)(2)(d). The court also pointed out the guardian ad litem did not recommend shared parenting. See 3109.04(F)(2)(e).

{¶ 42} There is no indication the court abused its discretion in denying the father's motion for shared parenting. The decision is not arbitrary or unconscionable; nor is it unsupportable by any sound reasoning process. See AAAA Ents. , 50 Ohio St.3d at 161, 553 N.E.2d 597. The credibility of the parties and other witnesses was a matter for the trier of fact as there may have been "much evidence in the parties' demeanor and attitude that does not translate to the record well." See Davis , 77 Ohio St.3d at 418-419, 674 N.E.2d 1159 (fact-finder had opportunity to view the witnesses and observe their demeanor, gestures and voice inflections and to use these observations in weighing credibility). The father's argument as to shared parenting is overruled.

{¶ 43} Finally, we reach what appears to be the father's main overarching argument. The father complains the court declined to implement a remedy to address the Child B's refusal to visit him and states the court's inaction permits a child to thwart a court order of parenting time. He asserts it was an abuse of discretion to not formulate some type of relief, such as an assessment of the child, counseling, reconciliation counseling with the father and the child, or supervised visitation. He characterizes the court's denial of his motion for shared parenting and his motion for contempt against the mother as maintaining the status quo (which involves Child B refusing to visit him). The father concludes the failure to order some relief effectively deprived him of his parenting time with Child B and could be viewed as the termination of his parental right to visitation.

{¶ 44} The father's brief then outlines the following law applicable when a court considers whether to terminate a parent's visitation: modification of visitation is within the discretion of the trial court upon considering the best interest factors in R.C. 3109.051(D) ; the nonresidential parent has a fundamental and natural right to visitation; the child has a fundamental right to visit with the nonresidential parent; the parent contesting visitation has the burden to show extraordinary circumstances by clear and convincing evidence; and the burden then shifts to the other parent to show visitation is still in the child's best interest. See Dubec v. Pochiro , 7th Dist. No. 09-MA-6, 2010-Ohio-1293, 2010 WL 1177465, ¶ 21-26. In Dubec , this court found the trial court effectively terminated visitation rights when it eliminated all visitation, even though the court provided some telephone contact. Id. at ¶ 29. We remanded and held: "when a trial court terminates a nonresidential parent's right of visitation the court must make a finding in its judgment entry that there was clear and convincing evidence of extraordinary circumstances justifying termination of those rights." Id. at ¶ 31.

{¶ 45} The father concludes the court was required to utilize this law in determining the motions before the court in this case. However, the mother did not ask the court to terminate his parenting time, and the court did not terminate his parenting time. In fact, the court denied the mother's motion to decrease his parenting time, wherein she asked to eliminate the mid-week visit (and keep the visit every other weekend and the additional summer weeks). The father filed a motion for shared parenting and a motion to hold the mother in contempt. Contrary to the allegations in his brief, the denial of these motions was not a denial of parenting time.

{¶ 46} The court denied shared parenting based upon the children's best interests and the refusal to hold the mother in contempt for Child B's failure to visit was apparently based upon the belief she did not improperly influence the child to refuse and she sufficiently encouraged him to visit. (The propriety of these decisions was addressed supra.) The denial of the father's motions was not an attempt to eliminate the father's right to visit with Child B. Furthermore, in denying the parties cross-motions for contempt, the court warned each party "to strictly comply with the Court's order of companionship as previously ordered." The prior order of companionship was every other weekend and every Wednesday for both children, with the other accoutrements of the local standard order.

{¶ 47} As to the failure to implement a plan (such as an evaluation or assessment and then counseling) to encourage Child B to visit the father, the mother's response brief contends the father cannot complain the court failed to enter an order where he did not file a motion seeking the order he now demands. She concludes the court fully addressed the motions filed and the father is seeking relief regardless of whether his motions were properly denied. She states the father can still seek counseling to facilitate his parenting time with Child B if he files a proper motion and the court finds the particular request is in the child's best interest.

{¶ 48} The father acknowledged his motion did not seek the type of remedy which he now suggests was required in order for the court to avoid abusing its discretion. His combined motion (for contempt and for shared parenting) did not seek an evaluation or counseling and he did not file a motion to modify his parenting time to occur at counseling (or under supervision as his brief also suggests). He underscores what he calls a "generic" request at the end of his motion for relief in the form of "[s]uch other and further Orders as are just." He also suggests counseling was mentioned at the final pretrial; however, the February 3, 2017 transcript of the pretrial contains no mention of a supplemental request for an evaluation or counseling.

{¶ 49} An assessment or evaluation is often used to ascertain the propriety, function, and scope of any future counseling. The statute governing the allocation of parental rights provides:

Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations. The report of the investigation and examinations shall be made available to either parent or the parent's counsel of record not less than five days before trial, upon written request. The report shall be signed by the investigator, and the investigator shall be subject to cross-examination by either parent concerning the contents of the report. The court may tax as costs all or any part of the expenses for each investigation.

R.C. 3109.04(C). This statutory language on ordering a psychological examination "is advisory and not mandatory in nature." Stone v. Stone , 9 Ohio App.3d 6, 11, 457 N.E.2d 919, 924 (12th Dist.1983). See also Weaver v. Weaver , 5th Dist. No. 2003CA00096, 2004-Ohio-4212, 2004 WL 1784595, ¶ 55-56 (finding the trial court did not abuse its discretion when it denied a party's motion under this division in part because the party waited until after the middle of the divorce hearing to file a request for psychological evaluations and also noting the children were already in counseling).

{¶ 50} In all the time the case was pending prior to the hearing (and throughout the continuances on the dates of the schedule hearings), no motion requesting an assessment or reconciliation counseling was filed. We emphasize the language "[p]rior to trial" in the above statute. The failure to order an evaluation prior to trial does not appear unreasonable, in this case, where no request was made for such an order. See, e.g., In re S.M.K. , 2d Dist. No. 2008 CA 17, 2008-Ohio-6733, 2008 WL 5273344, ¶ 15-21.

{¶ 51} As for the court's obligation to order an assessment and/or counseling after the hearing, the father emphasizes the portions of his testimony referring to counseling.

Notably, his first mention of counseling occurred while he was being cross-examined. He was asked whether he agreed with the mother's opinion on Child B having unvoiced issues concerning his refusal to visit. The father answered: "Yes I want counseling. I have already told my attorney I want counseling between me and [Child B] so we can work these problems out because obviously there is something going on." He added, "Well we didn't make a motion for that but I would definitely love to have that happen." (Tr. 94). On redirect examination, his attorney asked if he was willing to undergo counseling with the child, to which the father replied, "Absolutely. If that is what it would take. * * * I want to work on our issues." (Tr. 115). No details on counseling were discussed. The mother believed the child had unexpressed issues with the father; however, she was not asked about the topic of counseling for the child. The father's closing argument did not mention counseling.

{¶ 52} The trial court was not unreasonable in failing to order the mother to deliver the child to counseling where the filed motions before the court were all denied. The father did not file a written motion for counseling or for modified visitation (with a request for an order for the mother to bring the child to counseling). There was no evidence presented on the specifics of the counseling requested, and no evaluation had been conducted before trial. Under the circumstances in this case, we discern no abuse of discretion. Appellant's assignment of error is overruled, and the trial court's judgment is affirmed

Donofrio, J., concurs.

Waite, J., concurs.

      In ruling on objections, "the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate." Juv.R. 40(D)(4)(d).

      In a modification case, the court cannot change a prior decree allocating parental rights unless there are changed circumstances, the modification in the child's best interest, and the court finds: (i) the residential parent agrees or both parents under a shared parenting decree agree; (ii) the child, with the consent of the residential parent or both parents under a shared parenting decree, has been integrated into the family of the person seeking to become residential parent; or (iii) the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child. R.C. 3109.04(E)(1)(a). The court found none of these options apply here. (3/24/17 J.E. at 7).