HOLLI BROWN v. TROY BROWN
Appellate Case No. 2012-CA-40
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
August 9, 2013
[Cite as Brown v. Brown, 2013-Ohio-3456.]
Trial Court Case No. 2010-DR-136; (Civil Appeal from Common Pleas Court, Domestic Relations)
Rendered on the 9th day of August, 2013.
REBEKAH S. NEUHERZ, Atty. Reg. #0072093, Neuherz Law Offices, LLC, 121 South Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellant
RAYMOND A. GROGAN, JR., Atty. Reg. #0084002, 165 West Center Street, Suite 201, Marion, Ohio 43302
Attorney for Defendant-Appellee
HALL, J.,
{¶ 1} Holli Brown, the residential parent of the parties’ children, appeals the Champaign County Domestic Relations Court‘s order that if she moves to South Carolina, Troy Brown, the appellee, would be designated the residential parent. Finding no error, we affirm.
{¶ 2} The parties, Holli and Troy Brown, are the mother and father of three minor children. When the parties were divorced in 2011, Mother was designated the children‘s residential parent and Father was given parenting time. In 2012, Mother decided to move from her current home in Champaign County, Ohio, to South Carolina for a job opportunity and to be closer to her parents and sister. So she filed a notice of intent to relocate there with the children. Father objected and filed a motion asking the court to designate him the children‘s residential parent.
{¶ 3} In October 2012, after an evidentiary hearing, the trial court issued a written decision and order. The court found that the children‘s best interest is to remain where they are. Also, in addition to finding that the harm to the children from the move would outweigh the move‘s benefits to them, the court found that the move is a change in circumstances. The court concluded that these findings satisfy the requirements in the statutory provision that controls modifications to “a prior decree allocating parental rights and responsibilities,”
{¶ 4} Mother appealed.
II. Review of the Order
{¶ 5} Mother assigns three errors to the trial court‘s order. In the first assignment of error, she alleges that the court erred in finding that the move is a change in circumstances. In the second assignment of error, Mother alleges that the court erred in preventing her from moving
A. The Change-in-Circumstances Finding
{¶ 6}
{¶ 7}
{¶ 10} The first assignment of error is overruled.
{¶ 11} In the pretrial Journal Entry filed May 14, 2012 the trial court imposed a relocation restriction until the hearing on the prospective relocation. The Journal Entry of October 15, 2012 does not specifically state the same restriction, but the import of the order is of the same effect. Mother challenges, in the third assignment of error, the best-interest finding and, in the second assignment of error, the restriction itself.
{¶ 12} The abuse-of-discretion standard of review applies to the best-interest finding and to the imposition of the restriction. “The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988); see In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 14 (saying that “[a] trial court has broad discretion in proceedings involving the care and custody of children“). Under the abuse-of-discretion standard in a custody case, “disputes about the facts, the weight accorded the testimony, and the credibility of witnesses are left to the trial court.” Gartin v. Gartin, 2d Dist. Clark No. 2011-CA-74, 2012-Ohio-2232, ¶ 7, citing Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). “The question is whether evidence was presented that, if believed, supports the trial court‘s findings.” Id., citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414 N.E.2d 426 (1980).
{¶ 13} The trial court here found that the children have close bonds with their immediate and extended family. The court acknowledged that Mother has been the children‘s primary care giver and that they appear to have a very close bond with her. But the court also found that the children have close bond with Father and enjoy spending time with him. Both parents, said the
{¶ 14} But the trial court considered two factors to have overriding importance. The first is “how well the children are doing in their current environment.” (Journal Entry, 4 (Oct. 15, 2012)). The court found that they are “doing amazingly well in school,” are involved in lots of activities, “have lots of friends,” and “love their mom and dad and all of their extended family.” (Id.). A change in environment, found the court, “could negatively impact their lives.” (Id. at 5). The second factor is that a move of this distance would have a negative impact on their close relationship and bond with Father. The court found that “a move of this distance would severely limit []Father‘s parenting time with the children.” (Id.). The court found that “Father is a good father who loves his children, is extremely involved in their lives, and has a bond with them that every father should have.” (Id.). And “Father‘s children are the most important thing in his life right now.” (Id.). “Moving his children eleven (11) hours away,” the court found, “would negatively impact his parenting time with his children, even under the best case scenario.” (Id.). The court also found that, “except for extended sports seasons because of the warm weather,” there is not “any additional benefit for the children by moving.” (Id.). The court concluded by saying, “It is hard to believe they could do any better in school, be involved in any more activities or have any more friends.” (Id.).
{¶ 15} Based on the above findings, the trial court found that it is in the children‘s best interest to remain in Champaign County, where they are. The evidence in the record is sufficient
{¶ 16} Mother further contends that the relocation restriction violates her constitutional right to relocate. A residential parent “‘has a constitutional right to live anywhere in the country that she chooses and to relocate at will.‘” Quint v. Lomakoski, 2d Dist. Greene No. 2005-CA-38, 2005-Ohio-4603, ¶ 19, quoting Valentyne v. Ceccacci, 8th Dist. Cuyahoga No. 83725, 2004-Ohio-4240, ¶ 47. And “[a] court-ordered residency restriction unduly burdens a party‘s constitutional right to travel * * * if it restricts the ability of the party to live where he or she chooses.” Pennington v. Pennington, 2d Dist. Montgomery No. 19092, 2002 WL 1252173, *4 (June 7, 2002). But “if it is in the child‘s best interest to remain in a particular location, the residential parent‘s right to travel is not unduly burdened.” (Citation omitted.) Id. Given that the trial court here found that it is in the children‘s best interest to remain in Champaign County, the restriction that the court imposed does not violate Mother‘s constitutional right to relocate.
{¶ 17} Lastly, Mother contends that the trial court abused its discretion by imposing the restriction. We disagree. Given that the children‘s best interest is to remain in their current environment and that Mother intends to take them out of that environment, it appears that the trial court had no choice but to order as it did. We cannot say that the court abused its discretion by imposing the restriction. Compare Kelly v. Kelly, 1st Dist. Hamilton No. C-930337, 1994 WL 243961, *2 (June 8, 1994) (holding that “because the record contains a substantial amount of competent, credible evidence to support the trial court‘s decision that it is in the best interests of the children to remain in the current situation, where they have thrived and have a network composed of supportive maternal and paternal family members, the trial court did not abuse its discretion in denying appellant‘s motion to remove the children from Ohio to Texas“).
{¶ 19} The trial court‘s order is affirmed.
FAIN, P.J., and DONOVAN, J., concur.
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Rebekah S. Neuherz
Raymond A. Grogan, Jr.
Hon. Brett A. Gilbert