[Cite as Suwareh v. Nwankwo, 2020-Ohio-6899.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
LAMIN SUWAREH, :
Appellant, : CASE NO. CA2020-01-003
: OPINION
- vs - 12/28/2020
:
CHINELO NWANKWO, :
Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR14080831
Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio
45036, for appellant
Patricia A. Baas, 1831 W. Galbraith Road, Cincinnati, Ohio 45239, for appellee
HENDRICKSON, P.J.
¶1 Appellant, Lamin Suwareh ("father"), appeals from a decision of the Butler
County Court of Common Pleas, Domestic Relations Division, granting father additional
parenting time to observe religious holidays that would otherwise conflict with his ex-wife's,
Chinelo Nwankwo ("mother"), scheduled parenting time. For the reasons discussed below
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we affirm the decision of the trial court.
¶2 The parties have two minor children from their marriage. They were granted
a divorce in 2015. Father is a practicing Muslim, while mother is a practicing Christian. As
part of the decree of divorce, father and mother agreed to a shared parenting plan and the
trial court adopted the shared parenting plan. The shared parenting plan designated both
mother and father as residential parents with legal custody and set forth an alternating
schedule for parenting time. Mother's address was selected as the primary residence for
the children. The plan further specified that mother and father will alternate holidays and
that, regardless of schedule, mother will receive parenting time preference for Christian
holidays and father will receive parenting time preference for Muslim holidays.
¶3 After their divorce, the parties brought numerous post-decree motions
concerning child support obligations, mother's relocation to the Columbus, Ohio area, and
various modifications to parenting time. Relevant to this appeal, the magistrate entered an
order in June 2017 that modified the shared parenting schedule as it related to
transportation arrangements and telephone contact created by mother's relocation away
from father. Father objected to the magistrate's decision and the trial court held a hearing
on the objections. In November 2017, the trial court issued its decision adopting the
magistrate's order but modifying the parenting schedule to address the youngest child
entering kindergarten. The trial court ordered that religious holiday parenting time would
remain the same as in earlier orders but provided that the children shall not miss school for
parenting time. Appellant appealed the trial court's decision to this court.
¶4 On appeal, this court affirmed in part and reversed in part. Suwareh v.
Nwankwo, 12th Dist. Butler No. CA2017-12-174, 2018-Ohio-3737, ¶ 31 ("Suwareh I"). This
court determined that the trial court's order regarding the exercise of parenting time during
religious holidays was unclear. We reversed and remanded to the trial court for an order
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that "clearly delineates the religious holidays to which each parent is entitled to exercise his
or her parenting time and addresses the parties' ability to remove the children from school
to exercise said holiday parenting time."
Id. at
¶ 30.
¶5
Following the remand, a hearing was held before a magistrate in October
2018.1 The magistrate issued its decision in August 2019. In the decision, the magistrate
designated two Christian holidays, Christmas and Easter, that mother would receive special
parenting time to celebrate. The magistrate also designated two Islamic holidays, Eid al-
Fitr and Eid al-Adha, that father would receive for special parenting time. The magistrate
found that Islamic holidays follow a lunar calendar, therefore the date of observance
changes each year. Based on the projected dates of observance for the upcoming year,
the magistrate provided a schedule for the parents to use in the following year. In setting
forth religious holiday time for father, the magistrate ordered that father could not remove
the children from school if a holiday happened to occur during the school year. Instead, on
the day of the holiday, father would have the time after school until 8pm and then have
make-up time during the weekend following the holiday.
¶6 Father objected to the magistrate's decision. As part of the objection, father
filed a motion to use the electronic recording from the magistrate's hearing in lieu of a paper
transcript or alternatively waive the transcript. The trial court entered an order waiving the
transcript requirement but allowing for the review of the "physical evidence" from the
magistrate's hearing.
¶7 The trial court held a hearing on the objections in September 2019 and
entered its decision in December 2019. The trial court adopted the magistrate's decision
1. The hearing also involved other issues concerning post-decree motions not relevant to this appeal.
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as it related to mother's religious holidays.2 The trial court then found that based on the
evidence submitted by father, none of the Muslim holidays he identified were designated as
non-working holidays. Also, father did not present any evidence as to whether Muslim
schools close on the particular holidays. Therefore, the trial court determined that there
was no reason to "preempt" the children's regular school schedule.
¶8 Nevertheless, the trial court expanded upon the magistrate's decision by
providing father with the ability to select six holidays out of the eight different holidays he
identified to the court. The trial court ruled that when zero of the Muslim holidays occurred
during father's normal parenting schedule, he would be able to choose six holidays to
exercise holiday parenting time with the children to observe and celebrate the event. If all
of the holidays occurred within father's normal parenting time, father would not be given
additional parenting time. Finally, if some holidays fell on his normal parenting time
schedule but others did not, father would be granted the difference in days to have special
parenting time to observe religious holidays with the children.3 Father would have to notify
mother in writing 90 days in advance to exercise the religious holiday time.
¶9 The trial court imposed some limitations on Father in exercising his religious
holiday time with the children. Father could not remove the children from school but would
be permitted to see the children in the evening after school and return them to mother by
8:30 pm. Father would be limited to the area around mother's residence and would only be
able to attend a mosque within a 30-mile radius of mother's residence, unless the following
day the children did not have school. In that instance, father could take the children to his
2. Mother would be given a total of five days to celebrate her religious holidays: Christmas Eve day, Christmas
day, and Good Friday through Easter Sunday.
3. For example, if four religious holidays fell on father's normally scheduled parenting time, father could then
select two days for his religious holiday parenting time that would otherwise be mother's scheduled parenting
time.
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home for the night and return them to mother by 5:00 p.m. the next day. The trial court also
gave specific Muslim holidays preference over Memorial Day, Labor Day, and the children's
birthdays should those days occur at the same time as father's religious holidays and the
parenting schedule provided mother parenting time on those days. The trial court further
permitted father to have parenting time with the children in mother's town for a day visit,
except during school hours, at any time should he provide 24-hour advance notice to mother
about the visit. The trial court left unchanged father's parenting time during the summer
months.
¶10 Father now appeals the trial court's decision, raising one assignment of error
for review:
¶11 THE TRIAL COURT ERRED IN DETERMINATION OF THE TERMS OF
EXERCISE OF RELIGIOUS OBSERVATIONS.
¶12 In his sole assignment of error, father presents two issues for review. First,
father argues that the trial court violated his constitutional and statutory rights to practice
religion because the trial court promoted the children's school attendance above father's
religious observances in what father describes as a "blanket prohibition of religious
observances in favor of regular school attendance." Second, father argues that the trial
court exceeded the scope of this court's remand because it added time, notice, location,
and transportation restrictions on father's religious holiday parenting time.
¶13 An appellate court reviews a trial court's decision on the allocation of parental
rights and responsibilities for an abuse of discretion. Whitaker v. Whitaker, 12th Dist.
Fayette Nos. CA2019-05-008 and CA2019-05-009, 2020-Ohio-2774, ¶ 17. This court has
previously explained that "the power of the trial court to exercise discretion is peculiarly
important in proceedings involving the custody and welfare of children." Kenney v. Kenney,
12th Dist. Warren No. CA2003-07-078, 2004-Ohio-3912, ¶ 6. An abuse of discretion is
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more than an error of law or judgment, it is an attitude of the court that is unreasonable,
arbitrary, or unconscionable. Blakemore v Blakemore,
5 Ohio St. 3d 217
, 219 (1983).
¶14 Father presents his first issue in the context that the trial court's order violated
his constitutional right to practice his religion with his children because the order promoted
the children's school attendance above father's religious observances. The Ohio Supreme
Court has held that where the "court refuses to award custody to a parent because of her
religious beliefs, the court burdens [a parent's] choice of a religion in violation of the Free
Exercise Clause of the United States Constitution." Pater v. Pater,
63 Ohio St. 3d 393
, 396-
397 (1992). The trial court's decision does not violate father's free exercise of religion. The
order does not prevent father from exercising his religious beliefs. He is free to attend any
or all of the recognized Muslim holidays of his choosing. Neither does the trial court's
decision burden father's choice of religion as in Pater because father was granted parenting
time with his children. As we have previously explained, where the parent is "free to instruct
the children on his religious beliefs and to teach them as he sees fit" then there is no
infringement on the free exercise of religion. Willis v. Willis,
149 Ohio App. 3d 50
, 2002-
Ohio-3716, ¶ 54 (12th Dist). That is the case here.
¶15 Although father cites Davidovics v. Shore,
135 Ohio App. 3d 374
(8th
Dist.1999), to support his claim that the trial court violated his free exercise of religion, his
reliance is misplaced. Unlike in Davidovics, the trial court's order in this case did not
promote one parent's faith over the other, nor did it deny father the opportunity to pass on
his religious traditions. The trial court specifically sought an even distribution of time for
each parent to observe their religious holidays.
¶16 Likewise, father's argument that R.C. 3313.60 and 3321.04 support his claim
lacks merit. R.C. 3313.60 only sets forth the required curriculum for schools and R.C.
3321.04 merely provides for Ohio's compulsory education requirements. While R.C.
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3321.04 authorizes the state board of education or local school board to create rules by
which a child may be excused from school attendance, the statute does not specifically
provide any religious exception. To the extent that Ohio Adm.Code 3301-69-02(B)(2)(f)
permits absences from school for religious observance be excused, we find that this was
just another factor to be used by the trial court in determining the children's best interest for
the parenting time as will be discussed below.
¶17 As we explained in Suwareh I,
"[p]arents have a fundamental right to educate their children,
including the right to communicate their moral and religious
values * * * [and] 'direct the religious upbringing of their
children.'" Pater v. Pater,
63 Ohio St. 3d 393
, 397 (1992),
quoting Emp. Div., Dept. of Human Resources of Oregon v.
Smith,
494 U.S. 872
, 881, fn. 1,
110 S. Ct. 1595
(1990). See also
Wisconsin v. Yoder,
406 U.S. 205
,
92 S. Ct. 1526
(1972); Pierce
v. Society of Sisters,
268 U.S. 510
,
45 S. Ct. 571
(1925). "In a
custody dispute, the parents' rights must be balanced against
the state's need to determine the best interests of the child."
Pater at 397. "[A] domestic relations court may consider the
religious practices of the parents in order to protect the best
interests of a child."
Id. at
395.
However, a court may not restrict
a parent's right to expose his or her child to religious beliefs,
"unless the conflict between the parents' religious beliefs is
affecting the child's general welfare."
Id. at
paragraph two of the
syllabus.
2018-Ohio-3737 at ¶ 29. Pursuant to R.C. 3109.04(E)(2)(b), the trial court must consider
the best interests of the children when modifying the terms of the shared parenting plan.
Hall v. Hall, 12th Dist. Butler No. CA2018-05-091, 2019-Ohio-81, ¶ 21.
¶18 Since the trial court's order, to some extent, places restrictions on father's
ability to engage in his religious practices with his children during school hours, we realize
that this could impact father's ability to share his religious beliefs with his children when
school is in session. Therefore, we will address father's first issue within this context.
¶19 On remand, the trial court was required to consider the children's best interest
when balancing the competing factors of father's fundamental right to communicate his
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religious beliefs and direct his children's upbringing with both mother's and the state's
interest in providing an education to the children. Unfortunately, neither the magistrate's
nor the trial court's decisions specifically address their reasoning for their balancing of the
children's school attendance with father's religious practices. As we noted above, the trial
court was faced with a difficult procedural posture which made the task of balancing the
competing interests challenging. Father alternatively requested the trial court review the
audio recording of the magistrate's hearing or waive the transcript requirement and consider
the documentary exhibits admitted at the hearing. The trial court decided not to review the
audio recording and waived the transcript requirement but otherwise agreed to consider
some of the relevant documentary exhibits admitted at the hearing. Consequently, the trial
court did not have a transcript to review as part of its consideration of father's objections.
Ultimately, because father did not request further findings of fact and proceeded without the
transcript of the hearing, the trial court was faced with a very limited factual record.
¶20 Although father attempts to frame this as a purely legal issue, the best-interest
analysis involves a question of fact. See Hopkins v. Hopkins, 4th Dist. Scioto No.
14CA3597, 2014-Ohio-5850, ¶ 28. When considering the children's best interests there
must be a factual record for the trial court to consider. The "failure to submit a transcript or
affidavit restricts the scope of review at both the trial court and appellate levels and 'renders
any review of the magistrate's factual findings impossible because the reviewing court does
not have before it the evidence the magistrate relied on to make the factual findings.'" Smith
v. Smith, 12th Dist. Madison No. CA2018-02-004, 2018-Ohio-4179, ¶ 19, quoting Bonn v.
Bonn, 10th Dist. Franklin No. 14AP-967, 2015-Ohio-3642, ¶ 25. Therefore, "when an
objecting party fails to timely file a transcript or affidavit, a trial court's independent review
of the record is limited to an examination of the magistrate's conclusions of law and
recommendations in light of any accompanying findings of fact." Levy v. Seiber, 12th Dist.
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Butler Nos. CA2015-02-019, CA2015-02-021, and CA2015-02-030, 2016-Ohio-68 ¶ 18;
accord Herbert v. Herbert, 12th Dist. Butler No. CA2011-07-132, 2012-Ohio-2147, ¶ 14 (the
trial court is limited to examining only the magistrate's conclusions of law and
recommendations and has the discretion to adopt the factual findings of the magistrate).
¶21 Because the trial court ultimately agreed to waive the transcript requirement,
we are limited to considering "whether the trial court correctly applied the law to the facts
as set forth in the magistrate's decision." Smith at ¶ 20. The magistrate's decision states
that her findings of fact are based on "the evidence presented." Thus, we presume that the
evidence before the magistrate demonstrated the children's need to attend school
outweighed father's interest in directing their religious upbringing. To the extent that the
trial court reviewed evidence in the record in addition to the magistrate's findings, the trial
court found that father did not identify any Muslim holidays as "non-working" holidays and
failed to provide any evidence that Muslim schools close in observance of Muslim holidays.
In applying the law to the facts, we find that the trial court's decision was in the best interest
of the children. The evidence presented by father demonstrated that many of the Muslim
holidays are commemorated in the evening with prayers and feasting to celebrate the event.
As such, the trial court properly afforded father additional time in the evening to celebrate
his religious holidays with his children. Furthermore, father will enjoy the benefit of school
break periods should his religious holidays occur during those periods. The children are
not released from school for Christian holidays unless those holidays fall within the normally
scheduled school break periods.4 Accordingly, we find the prohibition on removing the
children from school did not impinge on father's fundamental right to raise his children as
4. Father's abbreviated argument concerning a violation of his rights under the Equal Protection Clause of
the 14th Amendment to the United States Constitution is undercut by the impartial and secular nature of school
breaks. Father will benefit from those breaks should his religious holidays fall during that time.
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he sees fit. Based on the record before us, the trial court's decision was not unreasonable,
arbitrary, or unconscionable. It was not an abuse of discretion for the trial court to limit
father's religious holiday parenting time as it did.
¶22 Having resolved the first issue raised by father, we turn to the second issue.
Father argues that the trial court exceeded the scope of this court's remand order by
imposing limitations on the exercise of his religious holiday parenting time. Father contends
that the trial court was limited to only "delineating" the parents' religious holidays. We
disagree.
¶23 In the absence of extraordinary circumstances, such as an intervening
decision by the Ohio Supreme Court, a lower court has no discretion to disregard the
mandate of a superior court in a prior appeal in the same case. Otten v. Tuttle, 12th Dist.
Clermont No. CA2009-09-055, 2010-Ohio-5424, ¶ 29. After remand, the lower court does
not have the authority to extend or vary the mandate.
Id.
¶24
In Suraweh I, this court determined that the trial court's orders were "unclear"
on how father was to exercise parenting time during religious holidays. 2018-Ohio-3737 at
¶ 30. This is because the trial court had "failed to identify those holidays or feasts or the
timing or duration of Father's parenting time on said holidays." (Emphasis added.)
Id.
Therefore, this court
reversed and remanded for the trial court to delineate the religious
holidays for parenting time.
Id. On remand the
trial court specifically addressed the timing
and duration of father's holiday parenting time. This court's remand required the trial court
to clarify the parameters of father's religious holiday parenting time such as the time, notice,
location, and transportation aspects involved in exercising that parenting time. The physical
distance between mother and father and the litigious nature of the parties made it necessary
for the trial court to consider and implement practical requirements on the use of religious
holiday parenting time. Consequently, the trial court was within the scope of the remand
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when it imposed time, notice, location, and transportation restrictions on the parenting time
for the delineated religious holidays.
¶25 In light of the forgoing, father's sole assignment of error is overruled.
¶26 Judgment affirmed.
RINGLAND and M. POWELL, JJ., concur.
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