441 N.E.2d 822 | Ohio Ct. App. | 1981
Defendant-appellant, Tracy G. Spence, appeals from an order of the Court of Common Pleas of Franklin County, Division of Domestic Relations, granting custody of the parties' minor child to plaintiff-appellee, Peggy S. Spence, and raises five assignments of error as follows:
"1. The trial court erred in changing the custody of the parties' minor child from defendant-appellant to plaintiff-appellee absent a specific finding that at least one of the mandatory requirements of [R.C.] Sec.
"2. The trial court erred in that in changing custody of the parties' minor child from defendant-appellant to plaintiff-appellee, the trial court abused its discretion in such matters.
"3. The trial court erred in that its decision to change custody of the parties' *281 minor child from defendant-appellant to plaintiff-appellee is contrary to law.
"4. The trial court erred in that its decision to change custody of the parties' minor child from defendant-appellant to plaintiff-appellee is against the manifest weight of the evidence.
"5. The trial court erred in finding that plaintiff-appellee did not have the burden of proof on the question of whether, due to the change of circumstances, the change of custody was necessary to serve the best interests of the minor child."
Defendant did not separately argue the five assignments of error but, rather, consolidated his argument, and the court similarly will treat the five assignments of error as a unit.
Defendant's basic thesis is that the trial court entered a change of custody order contrary to the provisions of R.C.
During the pendency of this action, by interlocutory orders, defendant was granted temporary custody of the parties' minor child. The decree of divorce, however, the provisions of which apparently were agreed to by the parties, provides as follows with respect to custody:
"In lieu of a final determination on the issue of custody, the Court ordered that interim physical custody of the child, Brian Gene Spence, shall remain with the Defendant until further order of the Court. It is further ordered that the parties shall appear on the 20th day of October, 1980 at 9:30 a.m. for a final hearing on the issue of custody. In the interim, the Court shall order a follow-up home investigation by the Court Investigator."
In addition, the decree provided for visitation and child support.
In the final order determining custody, the court stated in pertinent part as follows:
"* * * The Court, having considered the evidence and all other relevant factors, including those enumerated in R.C.
"IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff, Peggy Sue Spence, be awarded custody of the parties' minor child, Brian Gene Spence."
It is from this order that this appeal is taken. Since this is an initial custody order upon the granting of the divorce, it is controlled by R.C.
"Upon hearing the testimony of either or both parents and in accordance with sections
This the trial court did, and its determination is supported by evidence, even assuming that the evidence would also have supported an award of custody to defendant. The finding that it is in the best interest of the child that custody be awarded to plaintiff is supported by the evidence.
R.C.
Interlocutory orders respecting custody made pursuant to Civ. R. 75(M) are by their very nature temporary. Civ. R. 75(M)(1) states that: "* * * the court * * * may make a temporary order regarding the custody * * * of minor children * * * during the pendency of the action for divorce * * *." In other words, an order respecting custody made pursuant to Civ. R. 75(M) by its very nature is temporary and is subject to modification upon the entering of the final decree. R.C.
For the foregoing reasons, all five assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
REILLY and MCCORMAC, JJ., concur.