No. 70-322 | Ohio | Jul 14, 1971
The motion to certify herein was allowed on the premise, as claimed by appellant, that the action of the Court of Appeals was a reversal solely on the weight of the evidence. It is the claim of appellant that under such circumstances the Court of Appeals could only remand for new trial, and that Section 3 (B)(1)(f), Article IV of the “modern courts” amendment of the Ohio Constitution does not broaden the authority of the Court of Appeals; that the Court of Appeals therefore erred in failing to remand for new trial. As to such question see Baxter v. Baxter (1971), 27 Ohio St. 2d 168" date_filed="1971-07-14" court="Ohio" case_name="Baxter v. Baxter">27 Ohio St. 2d 168, also decided this day.
In the instant case we conclude that no question as to the weight of the evidence is involved. A Common Pleas Court does not have an absolute discretion to change a previous award of custody of a minor child. Such a change must be based on a finding of a “change of conditions.” Dailey v. Dailey (1945), 146 Ohio St. 93" date_filed="1945-12-12" court="Ohio" case_name="Dailey v. Dailey">146 Ohio St. 93; Trickey v. Trickey (1952), 158 Ohio St. 9. Here the Court of Appeals found “no evidence” of such change. A finding of no evidence does not involve the weighing of evidence.
We affirm the Court of Appeals.
Judgment affirmed.