Simkins v. PerezSimkins v. Perez
For Plaintiff-Appellant: Atty. Matthew C. Giannini 10404 South Commons Place Suite 200 Youngstown, Ohio 44514
For Defendant-Appellee: Atty. Robert J. Rohrbaugh, II Robert J. Rohrbaugh, II, LLC 4800 Market Street, Suite A Boardman, Ohio 44512
{¶1} This appeal presents an issue regarding a change in custody of the parties’ minor child. Appellant argues that the trial court failed to properly apply the change in circumstances requirement of
FACTUAL AND PROCEDURAL HISTORY
{¶2} Appellant Wendy Simkins and Appellee Daniel Perez had a child, M.S., in 2004. The parties were never married. Appellee‘s parentage was established in an administrative action confirmed by the juvenile court, and support was ordered. In 2005 Appellee filed a complaint for custody, and Appellant filed a competing motion to allocate parental rights. A guardian ad litem was appointed and litigation continued into the following year. Relations between the parties became increasingly acrimonious; additional motions were filed, counsel for Appellant was replaced several times, and in the following year a new guardian ad litem was appointed and Appellee filed a third motion seeking custody. The custody issue was ultimately
{¶3} On May 4, 2009, a year after the agreed entry, Appellee filed a motion seeking to reallocate parenting rights, child support, and the dependant child tax exemption due to a substantial change in circumstances. A guardian ad litem was appointed. Appellant failed to appear at the initial pre-trial in August because she was working in New Jersey and was delayed there with car trouble. She was unaware a guardian ad litem had been appointed. On September 2, 2009, in violation of the requirement that she provide sixty (60) days’ notice, Appellant filed a notice of intent to relocate indicating that she would move to Lexington, Kentucky, effective October 1, 2009, allegedly in furtherance of a new, higher paying job. Appellee filed his objections to the notice of intent on September 9, 2009, citing the child‘s substantial family contacts in Mahoning County. In November a long distance visitation schedule was ordered, and Appellee‘s visitation was reduced to alternate
{¶4} Testimony shows that Appellee married in April 2008 and was living in Youngstown with his wife and their newborn in a three bedroom house Appellee owned for three years at the time of trial. Both M.S. and the newborn have their own rooms. M.S.‘s room is set up for her exclusive use, and is not a guest room. During the same period, Appellant moved at least three times and lived at four different addresses in the area before moving to Kentucky. Although she was entitled to claim M.S. as her dependant and made more than $12,000.00 each year of the relevant time period, Appellant did not file tax returns in tax years 2008 and 2009, and could not remember if she had filed in 2006 or 2007. At trial she was unsure where her W-2 forms were and never subsequently produced them. By the last day of trial,
{¶5} Appellant admitted during her testimony that she did not discuss her move with Appellee, even though she had decided in August, or earlier, that she would move and therefore did not enroll M.S. in kindergarten in Ohio. Appellant further admitted that although her notice of relocation reflects as the reason for the move that she was taking a new job with better opportunities for herself and M.S., she was actually going to be working from home for Precision Marketing, the same company she was working for in Ohio, and that the position did not require her to move out of state. Although she appears to have planned to work from home in Kentucky, by the last day of trial she testified that she had not worked since October 2009, the date of her move.
{¶7} Appellee testified that beginning in November 2008, several months after the agreed entry granting him approximately twelve (12) days a month in parenting time, he was instead his child‘s primary caregiver for 20 to 29 days a month, due to Appellant‘s work schedule. He continued to be the primary caregiver until October 2009, when Appellant moved to Kentucky. (Tr., Vol. I, pp. 12-16.) It was due to this drastic increase in the time the child was spending with him because of Appellant‘s change in employment that Appellee initially filed his motion for custody. Appellee and his wife had discussed his desire for custody and planned the working arrangements they would make to ensure child care for both children. Although the custody motion was pending and Appellant was required to give sixty (60) days notice of an intent to relocate, Appellee was not informed by Appellant of the date of her move to Kentucky. On October 5, 2009, when he arrived to pick up M.S. he discovered that no one was home.
{¶9} The guardian ad litem testified that he met with the child four times: twice in his office, once in Appellant‘s home and once in Appellee‘s home. He examined both houses and the schooling options available in both locations. He felt both locations were suitable and both parents loved M.S. and provided clothing and toys for her generously. He found that although they both cared for their daughter very much, they were unable to get along with one another. The guardian nevertheless believed that due to Appellant‘s stability issues and due to the presence of both maternal and fraternal grandparents and other family in the Youngstown area, the move to Kentucky limited M.S.‘s access to her family and vice versa. For these
{¶10} A magistrate‘s decision and a journal entry adopting the magistrate‘s decision were filed on February 28, 2011. Both included extensive findings of fact and conclusions of law and granted Appellee‘s motion for custody. Appellant filed timely objections to the magistrate‘s decision. On April 29, 2011 the trial court issued a judgment entry including both findings of fact and conclusions of law. The trial court found that multiple changes in circumstance occurred, including the initial change in visitation between December 2008 and October 2009 when M.S. was spending the majority of the daylight hours every week with Appellee, which is the grounds for the change in custody identified in Appellee‘s motion. The court also found that a change in circumstances occurred when Appellant undertook what the court characterized as her self-serving move to Kentucky, which substantially changed the time M.S. was able to spend with her father. The move occurred after both the initial change in circumstances and after the filing of Appellee‘s motion seeking a change of custody. The move was, however prior to the date of trial and was known by the court when it ruled on the motion for change of custody. The court, after finding that there was a change in circumstance, proceeded to apply
Argument and Law
ASSIGNMENT OF ERROR
{¶11} THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH OHIO STATUTE IN ITS ORDER MODIFYING CUSTODY TO THE APPELLEE/FATHER.
{¶12} Appellant argues four issues under her single assignment of error: (1) the trial court did not have jurisdiction to modify the prior custody decree because the only change in circumstances occurred after Appellee filed his motion seeking a change in custody on other grounds; (2) the change in circumstances was not sufficient to trigger the continuing jurisdiction of the trial court; (3) a trial court‘s finding of a change in circumstances cannot be dependant on the agreement or stipulation of the parties; and (4) the evidence presented did not support a finding that it was in the child‘s best interest to reallocate custody. Appellant‘s arguments mischaracterize both the applicable law and the substance of the trial court‘s decision.
{¶14} 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: {¶15} (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.
{¶16} (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.
{¶17} (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.
{¶18} Due to the significance of custody determinations in the life of the child, both the Supreme Court and the legislature have placed conditions and burdens on the deciding court designed to ensure the greatest measure of stability practicable under the circumstances. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶34-36, see also In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶28. It is also due to the desire for stability that courts are given discretion to consider any facts that arise post-decree as well as any facts not known to the court at the time of the initial decree when determining whether
{¶19} The Fisher court acknowledged that the burden to show a “change” is a high one. Id., ¶33; see also Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997) (“there must be a change of circumstances to warrant a change of custody, and the change must be a change of substance, not a slight or inconsequential change.“) (Emphasis deleted.) Nevertheless,
{¶20} the trier of fact, must be given wide latitude to consider all issues which support such a change, including a change in circumstances because of the child‘s age and consequent needs, as well as increased hostility by one parent (and that parent‘s spouse) which frustrates cooperation between the parties on visitation issues. Id. at 416-417.
{¶21} A trial court‘s custody determination will not be disturbed on review unless it involves an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990). A court abuses its discretion when its decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1982). Without such an abuse of discretion, a custody decision will not be reversed when it is supported by a substantial amount of competent and credible evidence. Bechtol at 23.
{¶23} Both the magistrate and the trial court in this instance issued thorough decisions specifically identifying the findings of fact and conclusions of law driving those decisions. The Mahoning County Juvenile Court had jurisdiction over the custody matter because it arose out of the paternity suit. Although Appellant argues that the trial court had no jurisdiction to consider an additional post-motion fact when deciding whether there was a change in circumstances, there is no defect in the court‘s jurisdiction over the matter. The actual issue Appellant attempts to raise is whether it was an abuse of discretion for the court to consider facts that arose post-motion but prejudgment.
{¶24} The statute governing the modification of custody decrees restricts the court from revisiting facts concerning circumstances that occurred prior to its existing custody determination where these facts were known to the court before issuing its ruling.
{¶25} This matter appears to be analogous to Davis v. Flickinger, supra, in which the Supreme Court noted that the trial court “must be given wide latitude to
{¶26} Although in the matter at bar Appellant has not moved to terminate visitation, her move to Kentucky has become in many ways the functional equivalent. The trial court made thirty-three specific findings of fact concerning the relationship between the parties, outlining a situation where the parties had mutually modified their initial parenting arrangements to the point of reversing their roles, followed by the unilateral decision of Appellant to all but terminate the relationship between M.S. and Appellee.
{¶27} Contrary to Appellant‘s argument, the trial court does not rely solely on her move to Kentucky to base a finding of a change in circumstances, nor does the trial court rely on her stipulation that the move to Kentucky was a change in circumstances. Instead, the trial court looked at the circumstances that existed
{¶28} Once the trial court established that a change in circumstances occurred, it was required to look to the best interests of the child. Again, the court looked to Appellant‘s failure to allow visitation or communication with the child. The trial court found Appellant‘s attitude toward Appellee‘s request to take M.S. to his family reunion particularly telling: “mother acknowledged that by not agreeing to her terms, father ‘lost his chance.’ Extra visitation was hers to dictate because she ‘held all the cards.’ It is readily apparent to this Court that mother is not likely to facilitate visitation.” (2/28/11 J.E., p. 4.) Certainly the trial court looked at Appellant‘s reason for her out of state move and found that she had been less than credible to the court. Not only was she not required to leave the state in order to find a better job, she stopped working altogether as a result of the move. The court weighed the presence of maternal and paternal relatives in the Youngstown area, the relative stability of the two households, the strain long distance visitation was placing on M.S., Appellant‘s willingness to move to Columbus, Ohio, and her “pointless and self-serving relocation to Kentucky.” (2/28/11 J.E., p. 4.) The court concluded that both parents genuinely cared for M.S. and were as individuals, good parents to her, but that it was nevertheless in her best interests to reside in Appellee‘s stable home among her
Conclusion
{¶29} Appellant‘s sole assignment of error is without merit. The trial court properly considered the record before it, applied the controlling statute, and made a ruling supported by the evidence. The trial court did not abuse its discretion in its decision. Accordingly, Appellant‘s assignment of error is overruled and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.