DAVID W. BARRETT v. WENDY LEFORGE
C.A. No. 26381
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
December 12, 2012
[Cite as Barrett v. LeForge, 2012-Ohio-5865.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2003-08-3047
INTRODUCTION
{¶1} David Barrett and Wendy LeForge have a son, J.B., who was born in 1998. In 2004, the trial court approved a shared parenting plan that named Mr. Barrett as the residential parent. A few years later, it granted Mr. Barrett permission to move J.B. to Arizona. A couple of years after that, a police officer stopped Mr. Barrett for speeding while J.B. was with him. During the stop, the officer noticed that Mr. Barrett appeared intoxicated, and Mr. Barrett ended up pleading guilty to driving under the influence and endangerment. After Ms. LeForge learned about the convictions, she moved to reallocate the parties’ parental rights. Following a hearing, a magistrate found that there had been a change in circumstances and determined that it was in J.B.’s best interest to reside with Ms. LeForge. The trial court sustained Mr. Barrett’s objections to the magistrate’s decision, however, concluding that it could not modify the shared parenting plan because there had not been a substantial change in circumstances. The court also
CHANGE IN CIRCUMSTANCES
{¶2} Ms. LeForge’s first assignment of error is that the trial court incorrectly determined that she failed to establish that a change in circumstances had occurred that had a substantial impact on J.B. Under
{¶3} Ms. LeForge has argued that the fact that Mr. Barrett was convicted for operating a motor vehicle under the influence and that J.B. was a passenger in the vehicle at the time of the offense constitutes a change in circumstances for purposes of
{¶4} Mr. Barrett has argued that the trial court’s decision was correct. He has argued that this Court can only look at whether there was a change in circumstances from the last time the trial court evaluated who should be the residential parent, which was in March 2009. According to Mr. Barrett, at the time of the last evaluation he was already divorced. He has also argued that he and J.B. have only moved once since March 2009 and that it was to a new school district that he and Ms. LeForge mutually selected. He has further argued that J.B. has not suffered any negative effects from his convictions, noting that it has not caused J.B. to miss any school or affected his grades.
{¶5} In Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, Jesse Oberlin divorced Ashley Oberlin. The trial court named Mr. Oberlin as the residential parent of the parties’ daughter even though he had been convicted of operating under the influence. At the time the court issued its decree, it did not know that Mr. Oberlin had been arrested again for
{¶6} This Court has held that a criminal conviction can constitute a change in circumstances under
BEST INTEREST OF CHILD
{¶7} Ms. LeForge’s second assignment of error is that the trial court’s determination that it is not in J.B.’s best interest to modify the shared parenting plan was against the manifest weight of the evidence. Her third assignment of error is that the court incorrectly failed to adopt J.B.’s wishes when it evaluated whether it was in his best interest to make her the residential parent. Because these assignments of error involve the same issues, we will consider them together.
{¶8} There are ten factors that a court must consider when determining whether it is in the best interest of a child to modify a decree allocating parental rights and responsibilities.
{¶9} Although concluding that there had not been a change in circumstances, the trial court found that it was also in J.B.’s best interest for Mr. Barrett to remain the residential parent. It found that designating Mr. Barrett as the residential parent had helped to curb J.B.’s oppositional defiant disorder, that Ms. LeForge had been unable to hold J.B. accountable for his actions, and that Mr. Barrett was “better suited to provide the accountability and consistency that [J.B.] needs.” It also found that Ms. LeForge had refused to return J.B. to Arizona after her summer parenting time in 2008. It decided that “[n]aming [Ms. LeForge] the residential parent for school purposes would not be in [J.B.]’s best interest primarily because [he] is doing better in school while he is with [Mr. Barrett] than he would if he were with [Ms. LeForge] and also because [Mr. Barrett] is the parent who will foster [J.B.]’s relationship with the other parent.”
{¶10} In determining whether it is in a child’s best interest to modify the allocation of parental rights and responsibilities, the trial court “shall consider” all of the factors listed in
CONCLUSION
{¶11} The trial court incorrectly concluded that Mr. Barrett’s conviction for driving under the influence while J.B. was in the vehicle did not constitute a change in circumstances
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P. J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RONALD L. CAPPELLAZZO, Attorney at Law, for Appellant.
LESLIE S. GRASKE, Attorney at Law, for Appellee.