IN RE: C.A.C.J., MINOR CHILD
Case No. 18 BE 0010
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY
November 2, 2018
[Cite as In re C.A.C.J., 2018-Ohio-4501.]
Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.
Civil Aрpeal from the Court of Common Pleas, Juvenile Division of Belmont County, Ohio Case No. 15 JG 479
BEFORE: Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.
JUDGMENT: Affirmed.
Atty. Joseph Vavra, 132 West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee
Atty. Steven A. Stickles, 500 Market Street; Suite #2, Steubenville, Ohio 43952, for Defendant-Appellant.
WAITE, J.
{¶1} Appellant-Father appeals the January 5, 2018 decision of the Belmont County Common Pleas Court, Juvenile Division granting custody of Appellant‘s minor
Factual and Procedural History
{¶2} The pаrties were never married. Appellant was 15 years old and Appellee was 18 years of age when the minor child was born on December 19, 2011. Both parents were still in high school. After the child‘s birth, Appellant exercised parenting time as agreed by the parties. Appellee was cooperative with parenting time with the exception of a single incident wherein she was concerned about placing the сhild in Appellant‘s care. (7/28/17 Tr., p. 123.) Shortly after that incident, Appellant filed a motion for reallocation of parental rights and responsibilities with the trial court. The parties subsequently entered into a parenting plan which was filed with the juvenile court on November 13, 2015. The terms of the parenting plan included, inter alia, that Appellant was to exercise parenting time with the minor child every weekend and that Appellee would exercise parenting time during the week. The parties also agreed that as Appellant was attending West Virginia University, no child support would be ordered and the parties would reevaluate the issue once Appellant graduated from college. On completion of his studies, Appellant was ordered to pay child support, effective April 1, 2016. On November 21, 2016, after graduation, Appellant filed a motion for reallocation of parental rights and responsibilities with the trial court. Appellee filed her own motion
{¶3} After a series of continuances, a hearing on the motions was held on July 28, 2017. A number of persons testified, including the parties, Appellant‘s wife, Appellant‘s college roommate, and Appеllee‘s father. Appellant testified that after graduation from college he accepted a position near Detroit, Michigan. He testified that he had moved there with his wife and that he exercised visitation with the minor child at his residence, which was approximately a six-hour drive from Appellee‘s home. Appellant also testified that while a position was potentially available to him in Pittsburgh, it offered a lоwer salary and fewer benefits than the Michigan job.
{¶4} Appellee testified that she denied Appellant visitation only once since the child was born, and that was prior to the existing decree. She testified that neither she nor her husband were presently working and that she had another child at home and was currently pregnant. Both parties provided testimony regarding their respective income, expenses, and standard of living. The matter was taken under advisement and a magistrate‘s decision was issued on November 28, 2017. In this decision, the magistrate concluded that: (1) although the parties contemplated Appellant‘s graduation from college, a substantial change in circumstances occurred pursuant to
{¶5} Appellant filed оbjections to the magistrate‘s decision on November 28, 2017. In a judgment entry dated January 5, 2018, the trial court concluded the magistrate‘s decision was supported by the evidence and testimony provided at the hearing and overruled Appellant‘s objections. Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
AS THE PARTIES HAD ALLOWED FOR A FINDING THAT A CHANGE OF CIRCUMSTANCES EXISTED UPON THE APPELLANT GRADUATING FROM COLLEGE, THE TRIAL COURT CORRECTLY FOUND THAT THERE WAS A CHANGE OF CIRCUMSTANCES HOWEVER THE COURT INCORRECTLY APPLIED O.R.C. 3109.04 AND SHOULD HAVE GRANTED THE APPELLANT‘S MOTION AND CHANGED THE ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES AS IT WAS IN THE BEST INTEREST OF THE MINOR CHILD.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT DID ABUSE ITS DISCRETION IN DENYING APPELLANT‘S OBJECTIONS TO THE MAGISTRATE‘S DECISION WHEN THE MAGISTRATE HAD INCORRECTLY APPLIED THE LAW OF THE STATE OF OHIO.
{¶6} In his first and second assignments of error Appellant agrees the trial court properly found that a change of circumstances occurred once Appellant graduated from
{¶7} A determination of legal custody by the juvenile court will only be reversed for an abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 421, 674 N.E.2d 1159 (1997); In re D.D.D., 7th Dist. No. 12 JE 7, 2012-Ohio-5254.
{¶8} When making a custody determination between parents, the juvenile court shall exercise its jurisdiction in child custody matters in accordance with
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 thе 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 а 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.
{¶9} Appellant argues that he and Appellee agree that Appellant‘s graduation from college constituted a change of circumstаnces. Hence, in making its custody determination the trial court was required only to consider the best interest of the child. Appellant asserts that the court erred in granting custody to Appellee after conducting its best interest analysis because the evidence demonstrates that all of the
{¶10} In its findings of fact, the magistrate recognized that the parties anticipated Appellant‘s college graduation:
The pаrties entered into a Parenting Plan, which has been referred to throughout the record as a Shared Parenting Plan. The parties acknowledged at the creation of the Plan that changes would be necessary when Father graduated from college. The entire Plan revolved around Father‘s college schedule. However, the plan clearly notes Mother is the “Custodial Parent” and Father is the “Non-Custodial Parent.”
(11/6/17 Magistrate‘s Decision, p. 3.)
{¶11} The magistrate also found that:
Pursuant to ORC §3109.04(E), modification of a prior decree allocating parental rights and responsibilities can only occur if specific elements are
met. Because both parties are seeking a termination of the prior Plan and said Plan has been considered in the nature of a shared parenting plan by the parties and the court, there has been a change in circumstance of one of the рarents subject to a shared parenting decree. Specifically, Father has graduated from college and is moving to Michigan. Further, the parties had agreed to reexamine the Plan upon Father‘s graduation.
(11/6/17 Magistrate‘s Decision, p. 4.)
{¶12} Although the parties agree that the trial court was not required to find a change in circumstance in this case, the record reflects that the trial court did conduct the two-part change of cirсumstances/best interest analysis. The trial court incorporated into its judgment entry the language of the parenting plan, which specifically anticipated the graduation of Appellant from college and set that event as the termination date for the agreement: ”Agreement Effective Date: 11/13/2015, until the Father‘s anticipated college graduation date. Whereupon a new agreement shall be written.” (11/13/15 J.E., p. 1 of Shared Parenting Plan.) This record reveals that the triggering event for the termination of the parties’ parenting plan was Appellant‘s college graduation. As this event is neither a fact that was unknown at the time of the original decree, nor was it a new event that arose after the entry of the prior decree, it falls completely outside of the statutory definition of “change in circumstances.” See
{¶13} Once the trial court determined a change of circumstance existed, it was then required to determine the best interest of the child. In conducting а best interest analysis, the trial court must utilize factors set forth in
{¶14} Appellant contends that in applying the statutory factors the trial court abused its discretion in determining that it was in the child‘s best interest to grant Appellee custody. Appellant raises the fact that Appellee had denied him parenting time in the past. However, the one instance in question occurred prior to the 2015
{¶15} Appellant next argues thаt while Appellee testified she would share transportation if she was granted custody, Appellee is unemployed. Since she testified that she has asked her father for gas money for her vehicle, she will most likely not be able to help with transportation. Appellant states that Appellee has elected not to pay her cell phone bill in the past due to financial constraints and has no landline, which сreates a safety issue for the child in the event of an emergency. Finally, Appellant asserts that because Appellee lives in subsidized housing and has lived with the child in three different residences within five years this fact “should be considered as a negative for maintaining custody.” (Appellant‘s Brf., p. 6.)
{¶16} Appellant acknowledges that the trial court was correct in stating that, pursuant to
{¶17}
In addition to the factors set forth above, the court has considered that Mother has been the primary caretaker and “Custodial Parent” of the minor child. Father has established a nice, safe home for the minor child. However, no testimony or evidence was presented that establishes Mother has not done the same. The child does share a room at Mother‘s
home and her resources are mоre limited, but there has been no testimony that her home is unsafe, unclean or the child is mistreated.
(11/6/17 Magistrate‘s Decision, p. 5.)
{¶18} This record does not reveal that Appellee‘s financial condition has had any impact on the child‘s health, safety or welfare. Nor does Appellant cite to any evidence. In fact, the record reflects the parties have had no disruption in the parenting agreement since its filing in 2015 and have cooрerated with family members to ensure transportation and communication between the parties. While Appellant may be commended for his dedication to his child, considering the extreme youth of both parents when the child was born, the disruption to the otherwise uneventful flow of the 2015 parenting plan has been created by Appellant. Appellant‘s relocation to another state has created the diffiсulty in this matter. While any parent must be encouraged to further their education and improve their economic condition, and we applaud Appellant for his accomplishments, one parent may not utilize those accomplishments against the parent who clearly has not had similar opportunities. No matter how he couches his argument, Appellant attempts to rely on solely financial factоrs when claiming that it is in the best interest of the child that he be granted custody.
{¶19} The trial court in this matter considered the parties’ circumstances in their entirety and concluded that it was in the minor child‘s best interest to grant Appellee custody. That conclusion is supported by the record. The trial court did not abuse its discretion in overruling Appellant‘s objections to the magistrate‘s decision. The court correctly determined that a change in circumstance had occurred and this record supports the determination that granting Appellee custody was in the child‘s best interest. Appellant‘s first and second assignmеnts are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT‘S DECISION TO DENY THE APPELLANT‘S MOTION FOR REALLOCATION OF PARENTAL RIGHTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} Appellant contends the trial court‘s decision to grant custody to Appellee was against the manifest weight of the evidence. “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’ ” (Emphasis deleted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. In considering a challenge to the manifest weight of the evidence, the reviewing court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. In re A.S., 7th Dist. No. 11 JE 29, 2012-Ohio-5468, ¶ 10.
{¶22} Appellant urges that the court‘s decision was not supported by the evidence and that without considering all of the other evidence in this case the trial court based its entire decision on the fact that Appellant had relocated to another state. Citing Silverman v. Silverman, 4th Dist. No. 03CA2, 2003-Ohio-3757, Appellant contends the trial court did not look at all of the factors before granting Appellee custody. In Silverman, the Fourth District conсluded that although the Appellant alleged the trial court had only looked at the parties’ financial status in making its custody determination and awarded custody to the more financially well-off parent, the record demonstrated that several factors, including issues with visitation and medical concerns of the children while under the appellant‘s care, were present in that case. Based on all of these fаctors, the court changed the children‘s custodial parent. Silverman has no application in this matter. The record here demonstrates that there were no concerns by any party related to the health and welfare of the child, visitation, or any other matter to demonstrate removing primary custody from the child‘s primary caretaker was in the child‘s best interest. Appellant‘s assertion is not supported by the record, or by the very
{¶23} After review of the record before us, the trial court‘s determination was not against the manifest weight of the evidence. Appellant‘s third assignment of error is without merit and is ovеrruled.
{¶24} Based on the foregoing, Appellant‘s assignments of error are without merit and the judgment of the trial court is affirmed.
Bartlett, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.