In re Dissolution of Marriage of Kelly
2011 Ohio 2642
Ohio Ct. App.2011Background
- Kyde Kelly and Robert Kelly divorced; Nathan was ordered in 2005 to reside with Kyde with liberal visitation for Robert.
- Kyde began a long-distance relationship with Craig Jones and announced a planned relocation to Wyoming with Nathan.
- The parties sought a conditional judgment preserving custody if Kyde stayed; the court denied a conditional judgment, treating trial as all-or-nothing.
- Kyde remarried Craig Jones in Wyoming; she leased housing there and selected a Wyoming school but did not enroll Nathan.
- Robert opposed relocation, arguing it would disrupt Nathan’s support network; he moved to modify custody claiming a change in circumstances due to Kyde’s relocation plans.
- Trial court granted Robert relocation and designated him residential parent; Kyde appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did a change in circumstances occur to warrant a custody modification? | Kyde: no actual relocation yet; no change in circumstances. | Robert: intent to relocate plus anticipated move constitutes change in circumstances. | No change in circumstances; modification reversed. |
| Was the testimony of Terry Dehamer admissible/expert-related testimony appropriate? | Kyde: trial court allowed expert testimony on long-term relocation effects. | Robert: testimony admissible as part of custody evidence. | Issues moot after reversal; no substantive ruling on admissibility needed. |
| Should the court have entered a conditional judgment preserving custody if Kyde did not relocate? | Kyde: conditional judgment would preserve status quo pending relocation decision. | Robert: conditional judgment would prejudge the case. | Moot because custody modification reversed; conditional judgment entry not required. |
Key Cases Cited
- Masters v. Masters, 69 Ohio St.3d 83 (1994) (filing to relocate alone not a change in circumstances)
- Campana v. Campana, 2009-Ohio-796 (7th Dist. 2009) (notice to relocate with motion to modify visitation not a change in circumstances)
- DeVall v. Schooley, 2007-Ohio-2582 (5th Dist. 2007) (marriage and actual relocation can support change in circumstances)
- Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599 (Seventh Dist. 2000) (change in circumstances needed for modification; rebuttable presumption in best interest)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (wide latitude to consider evidence supporting change in custody)
- Booth v. Booth, 44 Ohio St.3d 142 (1989) (custody determinations afforded broad discretion)
- Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990) (custody discretion not absolute; must follow statute)
- Miller v. Miller, 37 Ohio St.3d 71 (1988) (deference to trial court's findings in custody cases)