BRANDY M. HOBBS (nka BASHAM) v. BRENT A. HOBBS
Case No. 14CA3635
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
DATE JOURNALIZED: 5-6-15
2015-Ohio-1963
ABELE, J.
[Cite as Hobbs v. Hobbs, 2015-Ohio-1963.] CIVIL CASE FROM COMMON PLEAS COURT
DECISION AND JUDGMENT ENTRY
APPEARANCES:
COUNSEL FOR APPELLANT: Robert M. Johnson, 611 Court Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: Robert R. Dever, 325 Masonic Building, P.O. Box 1384, Portsmouth, Ohio 45662
{¶ 1} This is an appeal from a Scioto County Common Pleas Court, Domestic Relations Division, judgment that modified the prior allocation of parental rights and responsibilities in the divorce proceedings between Brandy M. Hobbs (nka Basham), plaintiff below and appellee herein, and Brent A. Hobbs, defendant below and appellant herein.
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S MOTION TO EXTEND THE INTERIM
ORDER IN ITS MARCH 21, 2014, JUDGMENT ENTRY WHEN THERE WAS NO INTERIM ORDER IN EXISTENCE AND IMMEDIATE RELIEF WAS NOT JUSTIFIED, PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 53(D)(4)(e) .
SECOND ASSIGNMENT OF ERROR:
THE TRIAL COURT FAILED TO GIVE PROPER SCRUTINY IN REVIEW OF DEFENDANT-APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S DECISION, SPECIFICALLY IN REGARD TO THE MAGISTRATE’S FINDINGS OF FACT, AS REQUIRED BY
OHIO RULE OF CIVIL PROCEDURE 53(D)(4)(d) .
THIRD ASSIGNMENT OF ERROR:
THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE UNSUPPORTED BY COMPETENT EVIDENCE ON THE RECORD.
FOURTH ASSIGNMENT OF ERROR:
THE TRIAL COURT’S JUDGMENT ENTRY OF MAY 27, 2014, FAILED TO PROPERLY ANALYZE THE CHANGE OF CIRCUMSTANCES STANDARD PROMULGATED BY
O.R.C. 3109.04(E)(1)(a) , AND AS SUCH WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
FIFTH ASSIGNMENT OF ERROR:
THE TRIAL COURT’S JUDGMENT ENTRY OF MAY 27, 2014, FAILED TO PROPERLY ANALYZE THE BEST INTEREST STANDARD PROMULGATED BY
O.R.C. 3109.04(F)(1) USED TO DETERMINE THE CHILDREN’S BEST INTERESTS IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBLY, AND AS SUCH WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
SIXTH ASSIGNMENT OF ERROR:
THE TRIAL COURT’S JUDGMENT ENTRY OF MAY 27, 2014, FAILED TO PROPERLY ANALYZE
O.R.C. 3109.04(E)(1)(a)(iii) IN DETERMINING WHETHER THE HARM LIKELY TO BE CAUSED BY A CHANGE OFENVIRONMENT IS OUTWEIGHED BY THE ADVANTAGES OF THE CHANGE OF ENVIRONMENT TO THE CHILDREN, AND AS SUCH WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
I
BACKGROUND
{¶ 3} The parties married in 2001 and later had two children, B.H. and E.H., now ages eleven and twelve respectively. In May 2012, the parties divorced. The trial court designated appellant the children’s residential parent and legal custodian.
{¶ 4} Between September 2012 and June 2013, appellee filed two motions to find appellant in contempt, one ex parte motion for emergency custody, and a motion to modify the prior allocation of parental rights and responsibilities. Appellee’s contempt motions alleged that appellant (1) failed to provide clothing for the children when they stayed with her, (2) failed to provide school documents, (3) failed to notify appellee of the children’s sports schedules, and (4) failed to allow telephone contact. Appellee sought emergency custody of the children because she believed that the children slept in the same bed with appellant and appellant did not wear clothing. In her motion to modify, appellee generally alleged that circumstances had changed.
{¶ 5} The trial court denied appellee’s motion for emergency custody. The parties resolved the remaining issues, and the court dismissed all pending motions.
{¶ 6} In June and July 2013, appellee filed two more contempt motions. These motions alleged that appellant (1) failed to provide appellee companionship time with the children while appellant was at work, (2) failed to provide clothing for the children when they
{¶ 7} On October 1, 2013, appellee filed a motion to modify the prior allocation of parental rights and responsibilities. She generally asserted that there had been a change of circumstances in appellant’s home that warranted a modification, but did not specify what circumstances had changed.
{¶ 8} On November 15, 2013, appellee filed another contempt motion. She alleged that appellant failed to provide visitation with the children and failed to provide clothing for their visit.
{¶ 9} On January 8, 2014, the trial court denied appellee’s June and November contempt motions, but granted appellee’s July motion and found appellant in contempt for failing to provide parenting time to appellee. The court determined that this was appellant’s first offense.
{¶ 10} On December 23, 2013, appellee filed another motion to find appellant in contempt for failing to provide parenting time.
{¶ 11} On January 22, 2014, the magistrate held a hearing to consider appellee’s motion to modify and her December 2013 contempt motion.1 Although the motion to modify did not specify any particular changed circumstances, she alleged at the hearing that the children’s most recent report cards showed that their grades had dropped and claimed that
{¶ 12} At the hearing, the parties introduced the children’s school records, which included the children’s (1) 2013-2014 first quarter progress reports, (2) 2013-2014 first and second quarter interim reports, (3) 2013-2014 first and second quarter subject reports showing their individual scores on homework, classwork, tests, and quizzes; and (4) the children’s 2012-2013 final progress reports.
A
B.H.’S SCHOOL RECORD
1
2012-2013 School Year
{¶ 13} B.H.’s 2012-2013 report card does not contain letter grades. Instead, in the 2012-2013 school year, B.H.’s grades were evaluated under the following criteria: (1) pluses for [e]xceed[ing] the Standard, (2) checkmarks for [m]eet[ing] the Standard, (3) I for [i]mproving, but not yet meeting the Standard, and (4) N for not meet[ing] the Standard. B.H. received mostly checkmarks throughout the 2012-2013 school year, with some pluses and Is scattered here and there. The 2012-2013 report card also contains his teacher’s comments that state (1) he is doing well and the teacher hope[s] he continues to improve; (2) he is working hard and the teacher hope[s he] continues to grow; (3) he has room for improvement; and (4) the teacher hope[s] he will work to strive for his best.
{¶ 14} A May 24, 2013 Life Skills Report indicates whether B.H. needs improvement in any of the following areas: thinking and reasoning; self-regulation; life
2
2013-2014 School Year
{¶ 15} Appellee submitted B.H.’s September 17, 2013 grade reports from reading, religion, math, science, health, and spelling. Each subject has an individual grade report that shows the date of the assignment, what the assignment was, how many points were possible, and how many points he received. After listing all of the individual scores, the grade report averages the scores received on tests, homework, quizzes, classwork, and any extra credit. In reading, B.H.’s average scores were as follows: (1) 75.7% for tests; (2) 80.9% for homework; (3) 81% for quizzes; (4) 100% for classwork; and (5) a cumulative average of 77.6%. In religion, B.H.’s average scores were as follows: (1) 73.5% for tests; (2) 91.7% for homework; (3) 100% for quizzes; (4) 73.3% for classwork; and (5) a cumulative average of 79.8%. In math, B.H.’s average scores were as follows: (1) 85.9% for homework; (2) 85% for quizzes; (3) 100% for classwork; and (4) a cumulative average of 85.4% (there are no test scores listed for math). In science, B.H. received an average score of 70% for his homework assignments. No other scores were reported. Thus, his cumulative average in science was 70%. In health, B.H.’s average homework score was 100%. He also received some extra credit, which raised
{¶ 16} For each subject, appellee highlighted the scores B.H. received on the dates he stayed with her. She testified that his individual grades are higher when he stays with her than when he stays with appellant. Appellee testified that his scores average as follows: (1) in reading, 80 when staying with her and 70 when staying with appellant; (2) in religion, 94 when staying with her and 76 when staying with appellant; (3) in math, 90 when staying with her and 79 when staying with appellant; (4) in science, 70 when staying with her and 58 when staying with appellant; (5) in spelling, 98 when staying with her and 81 when staying with appellant.
{¶ 17} A September 19, 2013 interim report shows that B.H. received an F in history and a D in science (it does not contain grades in other subjects). The teacher’s comments state: inconsistent work and effort in and outside of class, and I know [B.H.] can do better. His behavior and attitude are dragging him down!
{¶ 18} Appellee also submitted B.H.’s October 13, 2013 grade reports from religion, math, and science. In religion, B.H.’s average scores were as follows: (1) 78.8% for tests; (2) 91.7% for homework; (3) 86.7% for quizzes; (4) 88.3% for classwork; and (5) a cumulative average of 82.5%. In math, B.H.’s average scores were as follows: (1) 87% for tests; (2) 83.1% for homework; (3) 84.3% for quizzes; (4) 100% for classwork; and (5) a cumulative average of 85.3%. In science, B.H.’s average scores were as follows: (1) 48% for homework; (2) 71.8% for classwork; and (3) a cumulative average of 63.9%. Appellee did not testify whether B.H.’s October 2013 individual scores averaged higher when he stayed with her as opposed to when he stayed with appellant.
{¶ 20} The first quarter progress report assigned letter grades and also evaluated B.H.’s progress using pluses, checkmarks, Is, and Ns, as described above. During the first quarter, B.H. received Cs in religion, English, math, and health and Fs in social studies and science.2 He received mostly checkmarks and Is, along with two Ns.
{¶ 21} B.H.’s interim report dated December 6, 2013 shows that his interim grades improved from his first quarter report card as follows: (1) an F to a C in social studies; (2) an F to a B in science; and (3) a C to a B in reading. He received the same grade in math–a C–and his religion grade dropped from a C to a D. The report also contained teachers’ comments. One teacher wrote that B.H.’s behavior and cooperation improved but stated that his homework is still a problem. Another teacher stated that B.H. could improve his grade if he completed his work and studied for tests.
B
E.H.’S SCHOOL REPORTS
2012-2013 School Year
{¶ 22} E.H.’s 2012-2013 final progress reports show the letter grade she received in her subjects and also contain the plus, checkmark, I, and N evaluations. In the first quarter of 2012-2013, E.H. received all Cs. In the second quarter, she received five Cs and a D. In the third quarter, she received two Ds, two Bs, and two Cs. In the fourth quarter, she received one B, one C, three Ds, and one F. Throughout the school year, E.H. received a number Is, some Ns, some checkmarks, and a few pluses.
2
2013-2014 School Year
{¶ 23} In the first quarter of the 2013-2014 year, E.H. received two Bs, two Cs, and one D. She received mostly checkmarks, along with some Is, two Ns, and a few pluses.
{¶ 24} Appellee presented only one individual grade report that contained E.H.’s social studies scores. Appellee did not present any of E.H.’s other individual grade reports, as she did for B.H. E.H.’s social studies report shows five projects and lists the points that E.H. received, along with the points possible. The report states that E.H. received 340 points out of a possible 500, for a cumulative average of 68%. Appellee stated that E.H.’s individual scores reveal that her scores were higher when E.H. stayed with her. Appellee testified that E.H.’s average score was 74 when staying with her and 62 when staying with appellant.
C
APPELLEE’S TESTIMONY
{¶ 26} Appellee stated that she believed the counseling helped the children. She testified that she noticed a difference in [B.H.]’s attitude and his behavior. She explained:
He was * * * getting a chance to talk about why he was behaving like he was and he was getting held accountable for what he was doing as well which made him, I think, think about it more and realize the situation he was in and how he could change it. He didn’t have to take his anger out on the other kids, he could talk to somebody.
{¶ 27} Appellee further claimed that B.H. improved his grades and behavior while undergoing counseling. She also stated that B.H.’s grades are better when he stays with her. She testified that she make[s] him make an effort. If there’s a test the next day we sit down together and we study together.
{¶ 28} Appellee stated that she and appellant nearly equally divide their time between the children, but she believes that it is a lot of back-and-forth for the children. Appellee opined that the children would benefit from a more consistent schedule.
{¶ 30} Appellee also stated that she has experienced problems exercising her parenting time with the children. She testified that appellant sometimes arrives late to exchanges or completely fails to arrive. Other times, he picks up the children from school when it is her scheduled time. Appellant further stated that when she calls appellant’s home to speak to the children, appellant does not answer. She further alleged that appellant failed to allow her to exercise her parenting time scheduled for December 20, 21, 22, 2013.
D
APPELLANT’S TESTIMONY
{¶ 31} Appellant testified that he is involved in the children’s school. He volunteers at the school, he coaches B.H.’s basketball team, and he speaks with the children’s teachers almost every day.
{¶ 32} Appellant stated that on a typical day when the children are with him, they do their homework shortly after they return home from school. He denied appellee’s allegation that he feeds the children fast food every night. Appellant stated that he and the children have home-cooked meals.
{¶ 33} Appellant explained that he did not want the children undergoing counseling at the school because the children were embarrassed. He spoke with the counselor, and the counselor informed him that there was no reason for the children to be involved in
E
MAGISTRATE’S RECOMMENDATION
{¶ 34} On February 20, 2014, the magistrate recommended that the trial court grant appellee’s motion to modify the prior allocation of parental rights and responsibilities. The magistrate found that (1) both children have struggled academically while in the care and custody of the Father, (2) appellee is currently able to provide a more stable environment for the children and seems genuinely concerned about improving the academics of these children, and (3) the children’s poor academic performance * * * constitutes a substantial change of circumstances. The magistrate specifically [found] that the academic performance of both children has suffered while in the care and custody of the Father. The magistrate additionally determined that appellant had been found in contempt for failing to provide parenting time to appellee and that appellant has not complied with prior parenting time orders. The trial court adopted the magistrate’s decision the very same day.
F
APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S DECISION
{¶ 35} On February 27, 2014, appellant filed a notice of objections to the magistrate’s decision, a motion for extension of time to file specific objections, and a motion to admit new
{¶ 36} On March 19, 2014, appellee filed a motion to extend the interim order. On March 21, 2014, the trial court granted appellee’s motion and ordered that she remain the children’s residential parent and legal custodian. On March 26, 2014, appellant filed a motion to vacate the court’s March 21 entry. On March 28, 2014, the court overruled appellant’s motion without explanation.
{¶ 37} On May 14, 2014, the trial court held a hearing to consider the children’s second quarter progress reports, which were unavailable at the time of the magistrate’s January 22, 2014 hearing and which were finalized before the children were placed in appellee’s custody. The second quarter progress report shows that B.H. improved his religion grade from a C to an A, his English grade from a C to a B, his social studies and science grades from Fs to Cs, and maintained Cs in math and health. B.H. received mostly checkmarks in the second quarter with a few Is. His January 17, 2014 Life Skills Report states that he is improving in the following areas: (1) showing a positive attitude; and (2) working without disturbing others. The teacher’s comment states that B.H. has been working hard on self-control this quarter and has made great progress. I am so proud of his accomplishments.
{¶ 38} In the second quarter, E.H. received three Bs and two Cs. She received mostly checkmarks and a couple pluses. Her teacher’s comment states: If [E.H.] works as hard this next quarter as she finished the last quarter she will be on the Honor Roll. I was very impressed with the way she works.
{¶ 40} Appellant testified that between the first and second quarters, he made sure that B.H. spent more time studying and completing his homework.
{¶ 41} The children’s counselor testified that he met with the children four times between October and November 2013. The counselor believed that the children suffered from adjustment disorder as a result of the divorce, but he told appellant that he did not feel there was anything major going on.
{¶ 42} On May 27, 2014, the trial court overruled appellant’s objections to the magistrate’s decision and designated appellee the children’s residential parent and legal custodian. The court noted that it had interviewed the children and gave great weight to their statements. The court also determined appellee’s testimony to be more credible than appellant’s. The court found that: (1) both children have struggled academically while in the care and custody of [appellant]; (2) [t]he grade reports submitted were not stellar; (3) the children’s most recent report cards show improvement; (4) appellee’s actions contributed to the slight improvement and/or maintenance of the children’s grades; (5) appellee appropriately disciplines the children; (6) appellee is currently able to provide a more stable and structured environment for the children and seems genuinely concerned about improving the academics of the children; (7) appellee is the parent most likely to promote, encourage, and facilitate parenting time; (8) appellant failed to provide the children with a
{¶ 43} The trial court thus determined that the foregoing facts demonstrated a change in the children’s and residential parent’s circumstances. The court explained its reasoning as follows: [I]t is not the first glance at poor or below-average grades that denotes a change in circumstances, [but] rather, it is the actions and/or inactions taken by the custodial parent that constitutes a change in circumstances.
{¶ 44} The court additionally found that the parties had issues regarding the denial of parenting times and that the court previously found appellant in contempt for failing to provide parenting time to appellee.
{¶ 45} The trial court determined that the above changes when bundled together, produce a change in circumstances that can have an adverse effect upon the children. The court explained: [T]he children’s lack of academic potential, coupled with [appellant]’s lackadaisical approach to structured parenting are, indeed, substantial–not slight or inconsequential.
{¶ 46} The trial court further found that modifying custody would serve the children’s best interests, that awarding appellee custody would be advantageous, and that the advantages outweighed any harm. The court thus granted appellee’s motion to modify the prior allocation
II
ASSIGNMENTS OF ERROR
{¶ 47} We find appellant’s fourth assignment of error dispositive of this appeal. In his fourth assignment of error, appellant contends that the trial court’s finding that a change in circumstances occurred is against the manifest weight of the evidence. He asserts that the evidence fails to show that the children’s grades have changed in a consequential manner, but instead, shows that the children experienced, at most, a temporary drop in their grades that does not affect their overall academic performance. Appellant further contends that the evidence fails to show that he continuously or systemically interfered with appellee’s parenting time rights so as to deprive her of a meaningful relationship with the children. He thus argues that the court’s one contempt finding does not support a change in circumstances finding.
A
STANDARD OF REVIEW GOVERNING CHILD CUSTODY DECISIONS
{¶ 48} Appellate courts generally review trial court decisions regarding the modification of a prior allocation of parental rights and responsibilities with the utmost deference. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997); Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Consequently, absent an abuse of discretion, we will not disturb a trial court’s decision to modify parental rights and responsibilities. Davis, 77 Ohio St.3d at 418. Abuse of discretion has been defined as an
{¶ 49} In Davis, the court more specifically defined the standard of review that applies in custody proceedings as follows:
Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O. 481, 106 N.E.2d 772, approved and followed.) [Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus]. The reason for this standard of review is that the 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. As we stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80–81, 10 OBR 408, 410–412, 461 N.E.2d 1273, 1276–1277:
The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge 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. * * * * * * * * A reviewing 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. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility of testimony and evidence must not be encroached upon by a reviewing tribunal, especially to the extent where the appellate court relies on unchallenged, excluded evidence in order to justify its reversal.
{¶ 50} Additionally, deferring to the trial court on matters of credibility is 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. Id. at 419. Furthermore, custody issues are some of the
In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.
{¶ 51} Thus, this standard of review does not permit us to reverse the trial court’s decision if we simply disagree with it. We may, however, reverse a trial court’s custody decision if the court made an error of law, if its decision is unreasonable, arbitrary, or unconscionable, or if substantial competent and credible evidence fails to support it. Davis, 77 Ohio St.3d at 418-419, 421 (explaining abuse of discretion standard and stating that courts will not reverse custody decisions as against the manifest weight of the evidence if substantial competent and credible evidence supports it, courts must defer to fact-finder, courts may reverse upon error of law, and trial court has broad discretion in custody matters).
B
LEGAL STANDARD GOVERNING CUSTODY MODIFICATION
{¶ 52}
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting
decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies: (I) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(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.
{¶ 53} The statute thus creates a strong presumption in favor of retaining the residual parent and precludes a trial court from modifying a prior parental rights and responsibilities decree unless the court finds all of the following: (1) a change occurred in the circumstances of the child, the child’s residential parent, or a parent subject to a shared-parenting decree, (2) the change in circumstances is based upon facts that arose since the court entered the prior decree or that were unknown to the court at the time of the prior decree; (3) the child’s best interest necessitates modifying the prior custody decree; and (4) one of the circumstances specified in
C
CHANGE IN CIRCUMSTANCES
{¶ 55} Because a child needs stability, parents should not “view final orders allocating parental rights and responsibilities as subject to easy revision as the child’s life develops.” Averill v. Bradley, 2nd Dist. Montgomery No. 18939, 2001 WL 1597881, *5 (Dec. 14, 2001). Easy revision of final orders allocating parental rights and responsibilities conflicts “with the principle of finality that attaches to all final orders, even those that may be modified.” Id. Furthermore, “[i]t perpetuates instability into the child’s life” and “promotes antagonisms between the child’s parents.” Id. It also “treats the court as a kind of supernumerary third parent that is available to resolve disputes which the parties should resolve themselves.” Id. Thus, a party seeking to reallocate parental rights and responsibilities carries a significant burden to show that a change in circumstance has occurred. See Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶33 (explaining that change in circumstance standard is “high”). Appellate courts must not, however, “make the threshold for change so high as to prevent a trial judge from modifying custody if the court finds it necessary for the best interest of the child.” Davis, 77 Ohio St.3d at 420–421. Accordingly, the change need not be “substantial,” but it must be more than “slight or inconsequential.” Id. at 417–418;
{¶ 56} Generally, a change in a child’s academic performance does not demonstrate a change in circumstances under
{¶ 57} We believe that the facts in Vent are similar to those in the case at bar and aptly illustrate when a change in academic performance does not constitute a change in circumstances under
{¶ 58} The mother appealed, and the appellate court upheld the trial court’s decision. The court rejected the mother’s argument that the children’s declining grades, behavioral issues, and lack of stability constituted a significant change in circumstance and explained: “Mother’s arguments are a classic example of the situation [referred to in Davis] wherein she believes that she can provide the children with a ‘better environment’ by providing more competent help with the children’s homework and establishing what she considers to be a better schedule and a more structured environment.” Id. at ¶22.
{¶ 59} The court further noted that even though the mother “provided numerous excerpts from the record indicating that the children’s grades were poor and that the children had disciplinary problems at school and on the bus,” all of the mother’s examples “were taken out of context, or they were specifically picked to support her position.” Id. at ¶23. The court observed that the father “cited just as many, if not more, examples from the record where the teachers and others testified that the children were doing well, that their problems were somewhat typical for boys of their age, and that their issues were not nearly as problematic as Mother depicted them to be.” Id. at ¶23. More specifically, the appellate court stated:
“* * * Mother’s issues regarding the children’s grades only tell one side of the situation. While we can understand Mother’s concerns with some of the poor grades that the boys received in some subjects and their unsatisfactory homework history, there was also evidence in the record indicating that they had demonstrated improvement in some areas and that their academic performance when they were with Mother may not have been significantly different than when they were with Father. Although it was problematic that the testimony indicated that the boys were not always working up to their potential, their school performance did not rise to a level of major concern to the educators who testified or to the trial court. In fact, [one of the child’s] current teacher[s] read from her notes, stating that, ‘[the child] is a real pleasure to have in class’ and that he has really improved in his reading fluency and in doing his assignments.”
Id. at ¶26 (citation omitted). The court further noted that the evidence failed to show that the father did “anything improper or that he failed to appropriately discipline the boys, even though his parenting style and priorities may be different than Mother’s.” Id. at ¶25. The court additionally observed that “the record certainly does not indicate that the children are heading down the path to juvenile delinquency.” Id.
{¶ 60} The appellate court also recognized that the same trial court judge had been involved with the parties since 2003, when the divorce proceedings began. The court thus gave great deference to the trial court’s decision and concluded that the trial court did not abuse its discretion by determining that the mother failed to demonstrate a change in circumstances sufficient to reallocate parental rights and responsibilities. Id. at ¶29.
{¶ 61} In Williams v. Evans, supra, the court likewise determined that the trial court did not abuse its discretion by rejecting the mother’s argument that a change in circumstances had occurred. In Williams, the mother alleged that the child’s excessive school absences and tardiness, coupled with the possibility that the child may need to repeat kindergarten,
“In this case, although [the child] missed 16 days and was late 73 times during his first year of kindergarten, these facts, alone, do not rise to the level of a material and adverse effect upon the child without a clear showing that these absences were harmful. Although the child’s continuous late arrival at school affected his daily kindergarten routine, [the child] was still able to move up to the first grade and there is no evidence in the record that the absences and tardiness have continued. Further, [the child]’s behavioral problems appear to stem from his diagnosis of attention deficit hyperactivity disorder rather than his absences from kindergarten.”
Id. at ¶13 (citation omitted).
{¶ 62} Likewise, in Rowe the court concluded that the trial court did not abuse its discretion by determining that the father failed to establish that a reallocation of parental rights was warranted based upon an allegation of poor academic performance. The father asserted that the child could be a better student if the father was the residential parent. The appellate court disagreed and noted that the evidence showed that the child’s “academic performance was lackluster from the start.” The court further observed that the evidence suggested that the child “simply did not have the innate intellectual ability to be a B student and, therefore, was performing as well in school as could reasonably be expected.”
{¶ 63} In Harter, the court upheld the trial court’s finding that the father failed to establish a change in circumstance. In Harter, the father alleged that the children’s erratic grades and school attendance, along with his daughter’s pregnancy, established that a change in circumstance had occurred. The court disagreed and explained:
“The record indicates that [the daughter’s] grades have generally been inconsistent since the parties were divorced in 1991. [The father] argues that during one grading period, while [the daughter] stayed with him for six weeks,
[her] grades overall improved. However, [the father] conceded he promised [the daughter] he would purchase her a car if she improved her grades while residing with him. Upon returning to her mother’s new home, [the daughter] received no such enticements and her grades began to fluctuate once again.”
{¶ 64} Courts have, however, found a change in circumstances due to a child’s academic performance when the child’s overall academic progress was “dismal” and when other changes occurred in the child’s life. In C.D., 7th Dist. Harrison No. 11HA5, 2012-Ohio-4494, for instance, the court determined that the trial court did not abuse its discretion by finding that the father demonstrated that a change in circumstances occurred when the evidence showed, among other things, that the child had repeated kindergarten and was in danger of failing first grade. In C.D., the father claimed that a change in circumstance had occurred because the mother had numerous men moving in and out of her home, the child’s grades were dismal, and the child lacked proper hygiene. The evidence showed that during the child’s second year of kindergarten, she was absent twenty times and had been tardy twice. During first grade, the child’s received 2 Fs, 4 Ds, and one B. The child’s first grade teacher stated that the child is in danger of failing and that the mother has been unresponsive to the school’s expressed concerns. The teacher explained that she recommended that the mother take the child to be evaluated for Attention Deficit Disorder, but the mother did not. The teacher stated that both the father and his wife have been responsive to the child’s needs and have shown an interest in helping the child. The evidence further revealed that the child received multiple write-ups for behavioral issues. The trial court determined that the foregoing facts established a change in circumstance that warranted a reallocation of parental rights and responsibilities.
{¶ 65} On appeal, the court affirmed the trial court’s decision. The court noted that the evidence showed that the child had extensive educational issues that the mother failed to address. The court additionally recognized that the father and his wife assisted the child with her homework, purchased study aids, and volunteered at the school. The court thus determined that the trial court did not abuse its discretion by finding that a change in circumstance had occurred.
{¶ 66} In Kurfess, the court likewise determined that the trial court did not abuse its discretion by reallocating parental rights and responsibilities. In Kurfess, the father alleged that the mother had not complied with the parties’ parenting agreement and had interfered with his ability to have a relationship with the child by not facilitating telephone calls, shutting off the phone until one minute before 8:00 p.m., refusing to provide educational information regarding the child, and speaking ill of the father in front of the child. The father further alleged that when he finally accessed the child’s educational information, he discovered that the child had an excessive truancy and absenteeism rate. The father later asserted that the mother withdrew the child from the child’s current school and enrolled the child in a new school without notifying the father, despite the child’s ongoing attendance and socialization issues. The appellate court concluded that the trial court did not abuse its discretion by determining that the foregoing circumstances demonstrated a change in circumstance.
{¶ 67} In Wallace, the court similarly determined that the trial court did not abuse its discretion by finding that the father established that a change in circumstances occurred. The court observed that the following facts supported the trial court’s finding of a change in circumstances: (1) the mother moved thirty miles away from the only place where the parties’
{¶ 68} In Harley, we held that the trial court did not abuse its discretion by determining that a change in circumstance had occurred when the evidence showed that the child fell behind in her academic skills, the mother moved and changed care-providers frequently, and the mother failed to promote the father’s involvement in the child’s life. More specifically, we explained:
“[The evidence] indicate[s] that [the child] has fallen behind in her academic skills, and that the stable environment provided by [the father] is likely to help her overcome those delays. The record further reveals that [the mother’s] frequent changes of residence and of care providers for [the child] has resulted in abruptly discontinued relationships with caregivers and friends in [the child’s] life.”
{¶ 69} As all of the foregoing cases make clear, to show that a change in a child’s school performance constitutes a change in circumstances under
{¶ 70} We believe that the facts in the case sub judice more closely mirror the facts in Vent, Williams, Rowe, and Harter, than those in C.D., Wallace, and Harley. Appellee, like the
{¶ 71} Furthermore, appellee’s concerns over the children’s first-quarter grades are similar to the mother’s concerns in Vent. Appellee apparently became concerned when she saw the children’s first-quarter report cards. She analyzed the children’s homework, test, classwork, and quiz scores–with a special emphasis on B.H.’s scores–and believed the children received higher homework scores when staying with her. Appellee’s evidence regarding the children’s individual grade reports, however, provides only a snapshot of the children’s academic progress, and she obviously selected the reports that place her in the best light. We understand appellee’s concerns that the children may not always perform to their potential and have no doubt that appellee wants only the best for her children. The evidence shows, however, that the children’s overall academic performance was not of concern to the children’s principal. The principal testified that the children’s academic performance does not place them in any danger of failing and does not carry any negative consequences.
{¶ 72} Additionally, just as in Vent, the evidence in the case at bar fails to show that appellant did “anything improper or that he failed to appropriately [discipline] the [children], even though his parenting style and priorities may be different than [appellee]’s.” Id. at ¶25. Moreover, the evidence “certainly does not indicate that the children are heading down the path to juvenile delinquency.”4 Id.
{¶ 73} Unlike C.D., Kurfess, and Wallace, where the courts determined a change in circumstances occurred, the evidence in the case sub judice does not show that (1) the children are in danger of failing their current grade level, (3) the children lack proper hygiene, (4) they have poor school attendance, (5) the children’s educators expressed any concerns to appellant that he failed to address, (6) appellant withdrew the children from their current school and enrolled them in a new school without notifying appellee, (7) appellant frequently changed residences, (8) appellant began having difficulties controlling the children, or (9) appellant had a strained relationship with either child.
{¶ 74} Moreover, the evidence in the case sub judice shows that the children’s overall academic progress has remained relatively unchanged since the parties’ divorce. The 2012 guardian ad litem report states: “Throughout [E.H.’s] school years, school work has not come easily * * *. She has struggled with school work and especially homework.” To the extent the trial court believed E.H.’s grades were “not stellar,” the evidence reveals that her grades were “not stellar” from the start. See Rowe, supra (observing child’s “academic performance
{¶ 75} B.H.’s overall academic progress also is relatively unchanged. His May 2013 and October 2013 “Life Skills Reports” both indicate that he needed to improve his skills in the following areas: (1) obeying school and classroom rules; (2) showing self-control; (3) displaying a positive attitude; and (4) working without disturbing others. The only difference between the May 2013 and October 2013 reports is that the October report deleted taking ownership of actions and added two new areas in which B.H. needed to improve: (1) listening attentively; and (2) respecting others.
{¶ 76} During the 2012-2013 school year when B.H. was in third grade, he did not receive letter grades on his progress report. Instead, his academic progress was evaluated using pluses, checkmarks, Is, and Ns. The final progress report shows that he received mostly checkmarks, which indicated that he met the standards, along with some pluses and Is.
{¶ 77} B.H.’s first quarter 2013-2014 progress report used letter grades and plus-checkmark-I-N evaluations. He received a combination of checkmarks and Is with a few Ns. For his letter grades, B.H. received two Fs and three Cs. Certainly, most reasonable parents would be distressed to see two Fs on a child’s report card and would want to take immediate action to improve those grades. A parent’s immediate action should not, however, be to file a motion to modify parental rights and responsibilities the first time a child brings home a report card with an F, unless other consequential changes have occurred. Two Fs on a fourth-grader’s first quarter report card are indeed cause for concern. Nevertheless, instead of
{¶ 78} In sum, we are unable to find any evidence in the record that leads to a logical conclusion that the children’s academic performance changed in a consequential manner since the parties’ divorce. Indeed, the trial court found that the children’s academic progress had been “stagnant,” until the 2013-2014 second quarter progress reports, which the court found showed “slight improvement and/or maintenance.” Thus, by the court’s own factual findings, the children’s academic progress has remained relatively unchanged, except for some slight improvement.
{¶ 79} Furthermore, to the extent that the children’s academic progress declined during the first quarter of the school year, the decline does not appear to be of any consequence whatsoever, as the children’s principal stated. Neither children is in danger of failing, and the children’s second quarter progress reports–which were issued before the court designated appellee the residential parent–show that the children’s grades improved from the first quarter of the school year.
{¶ 80} Although appellee presented evidence that the children receive higher grades on individual homework assignments when they are staying with her, we do not believe that the legislature intended the change in circumstances standard to focus upon an examination of a
{¶ 81} While we recognize that courts must not make the change in circumstances standard so high as to prevent a trial court from reallocating parental rights when clearly necessary for the child’s best interest, the standard cannot be so low that parents are encouraged to file a motion to modify every time a child brings home a failing grade or report card. We believe that reallocating parental rights and responsibilities every time a child experiences a grade fluctuation carries “baleful implications.” See Wholf v. Wholf, 11th Dist. Geauga No. 2003-G-2501, 2004-Ohio-3931, ¶38 (stating that modifying custody every time a child starts a new school carries “baleful implications”).
“‘We doubt the legislature intended for any [academic grade] change to constitute a change of circumstances in the child warranting a change of custody. Were it so, any nonresidential parent would seek custody based solely upon [even the slightest change in a child’s grades]. Granting a change of custody solely upon those grounds would foster rather than prevent a constant relitigation of the issues already determined by the trial court in its prior custody order.’”
Id., quoting Allgood v. Allgood, 12th Dist. No. CA98-12-156 (Oct. 25, 1999).
{¶ 82} We find it unlikely that the legislature intended every grade fluctuation to constitute a change in circumstances warranting a custody modification. Grade fluctuations
{¶ 83} We recognize that the trial court indicated that it did not rely upon the children’s grades to find a change in circumstance but instead relied upon the father’s failure to provide an environment that encourages the children’s academic progress. The court did, however, give much thought to the children’s academic progress or lack thereof. Moreover, to the extent the court relied upon the father’s “inactions” and “lackadaisical” parenting style, nothing in the record shows that appellant’s actions, inactions, or parenting style have changed since the prior allocation. As
{¶ 84} The evidence in the case sub judice fails to show that appellant’s “lackadaisical” parenting style was unknown or not in existence at the time of the prior allocation. The filings from the divorce proceedings show that the trial court, at the time of the prior allocation, viewed appellant as “the less strict parent.”5 Nothing in the record shows that appellant became even less strict or wholly uninvolved in the children’s lives since the prior decree.
{¶ 85} Moreover, the court found that appellant “has been lackadaisical in shoring up
{¶ 86} In the case at bar, we do not believe that the trial court appropriately focused upon whether a change actually occurred. Instead, the court appears to have primarily evaluated whether the children’s academic performances coupled with the appellant’s parenting style significantly affected them. The trial court stated that “the children’s lack of academic potential, coupled with [appellant]’s lackadaisical approach to structured parenting are, indeed, substantial–not slight or inconsequential.” Even if we agree with the court that these circumstances are “substantial” and significantly affected the children, the court’s decision fails to specify how these circumstances are any different from the circumstances that existed at the time of the prior allocation. We have thoroughly reviewed the record in an attempt to uphold the trial court’s judgment, but we are unable to find any evidence in the record to show that the children’s overall academic performance or appellant’s parenting style materially changed since the prior allocation.
{¶ 87} The trial court also cited appellant’s recent contempt as evidence supporting a change in circumstances. When a “parent begins to cut out another parent,” a “child is materially affected.” Davis, 77 Ohio St.3d at 419. “[P]reventing a child from spending time with a caring and loving parent, as well as the hostility and friction generated by the disputes that arise over such issues,” may affect a child’s welfare. Thus, a residential parent’s interference with the nonresidential parent’s relationship and parenting time with a child may “may be considered as part of a ‘change in circumstances’ which would allow for modification of custody.” Holm v. Smilowitz, 83 Ohio App.3d 757, 773, 615 N.E.2d 1047 (4th Dist., 1992). For the residential parent’s interference to constitute a change in circumstances, however, the interference must be “systematic” or “continuous and willful.” Hinton v. Hinton, 4th Dist. Washington No. 02CA54, 2003–Ohio–2785, ¶29. Thus, “frequent conflicts, misunderstandings, defects and defaults in literal visitation compliance [are not] sufficient prima facie grounds to demonstrate a sufficient change of circumstances as to allow modification.” Venuto v. Pochiro, 7th Dist. Mahoning No. 02CA225, 2004–Ohio–2631, ¶49.
{¶ 88} In the case at bar, the evidence fails to show continuous, willful, or systemic interference with appellee’s relationship or parenting time with the children. Since the divorce, appellee filed seven contempt motions. The trial court expressly overruled two, granted one, and the parties mutually resolved the others.7 None of the motions indicate that appellant continuously, willfully, or systemically interfered with appellee’s parenting time so as to significantly affect her relationship with the children, and the trial court made no such
{¶ 89} Although we are hesitant to find that the trial court abused its discretion by finding a change in circumstances and while we recognize that our decision will once again uproot the children,8 we are unable to find evidence to support the court’s decision that the children’s alleged drop in grades during the first quarter of the year, coupled with appellant’s unchanged parenting style and the parties’ frequent conflicts, constitute a change in circumstances sufficient to reallocate parental rights and responsibilities. Again, we note that the trial court indicated it did not rely upon the supposed first quarter decline in grades. The children’s academic performance, however, was the primary focus of the hearing. Moreover, there is absolutely no evidence that appellant’s parenting style has changed. Simply stated, the children’s supposed temporary decline in grades, appellant’s unchanged parenting style, and the parties’ frequent arguments do not add up to a significant change in circumstances.
{¶ 90} Additionally, little else has significantly changed in the children’s or appellant’s circumstances. Appellee remarried, but she lived with this same person at the time of the prior
{¶ 91} Furthermore, at the time of the prior allocation, appellee and appellant did not “cooperate in school matters and each blame[d] the other for [E.H.’s] academic struggles and issues with homework.” They “placed the best light on their own behavior while placing the worst light on the other.” These are essentially the same arguments the parties raised during the modification hearing.
{¶ 92} We can find nothing in the record to show a change of substance in either the children’s or appellant’s lives. The record does not contain substantial competent and credible evidence to show that a change in circumstances occurred. Consequently, we believe that the trial court abused its discretion by determining that appellee established a change in circumstances sufficient to warrant a reallocation of the parental rights and responsibilities set forth in the prior decree.
{¶ 93} Accordingly, based upon the foregoing reasons, we hereby sustain appellant’s fourth assignment of error and reverse the trial court’s judgment.
JUDGMENT REVERSED.
It is ordered that the judgment be reversed and that appellant shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Domestic Relations Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J.: Concurs in Judgment & Opinion
Harsha, J.: Dissents
For the Court
BY: ______________________________
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.