WILLIAM SCOTT KING, Plaintiff-Appellee, v. BRITTNEY T. KING, N/K/A BRITTNEY T. SCOTT, Defendant-Appellant.
Case No. 13CA8
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
RELEASED: 12/29/2014
[Cite as King v. King, 2014-Ohio-5837.]
Brittney Scott, Tiffin, Ohio, pro se Appellant.
William King, Wellston, Ohio, pro se Appellee.
Harsha, J.
{¶1} Brittney King, n/k/a Brittney Scott, appeals from the trial court‘s judgment reallocating the parties’ parental rights and designating William King as the residential and custodial parent of their two youngest children. Initially she contends that the court erred under
{¶2} Next Scott argues that the trial court abused its discretion by failing to appoint a guardian ad litem (GAL) and interview the children pursuant to
{¶3} Scott also claims that the trial court abused its discretion by failing to issue a summons compelling King to respond to and defend her motions for contempt. Because King appeared to contest the contempts, Scott cannot show she suffered any prejudice from the court‘s purported failure to issue subpoenas. Moreover, Scott lacks standing to raise a purported denial of her opponent‘s due process rights.
{¶4} Because she retained custody of their oldest son and King was already in arrears, Scott argues that the trial court abused its discretion by granting King‘s motion to suspend child support after the court continued his temporary custody of their two youngest children. However, after suspending its previous child support order, the trial court recalculated the support based on Scott having custody of one child and King having custody of two children and ordered him to pay an additional sum towards his arrears each month. The court‘s order was retroactive to the day King filed his motion to modify support and thus there was no suspended period of time that King was not required to pay support. So, we reject Scott‘s argument.
{¶5} Scott also claims that the trial court erred by failing to include a child support worksheet in the record. However, the Jackson County Child Support Enforcement Agency (CSEA) filed a notice with the court of the recalculated child support and attached a completed child support computation worksheet based on split parental rights and responsibilities. The magistrate adopted CSEA‘s notification and thus the completed worksheet became part of the record.
{¶6} Scott argues that the trial court abused its discretion by failing to hold a hearing before ruling on five of the contempt motions that she filed after the final hearing date. In its September 30, 2013 entry the court specifically identified three contempt motions she filed before the final hearing date. However, Scott claims that because the five motions she filed after the hearing were still pending when the court filed its entry, its conclusory statement “the contempt motions are denied,” also referred to these motions. We disagree. In a later entry the court specifically addressed several of the contempt motions that Scott identifies and scheduled a hearing on the motions. This directly contradicts her argument that the court overruled her motions in its September 30 judgment entry and we find her argument meritless.
{¶7} Scott also attacks the merits of the trial court‘s judgment and argues that the court abused its discretion by modifying its previous decree and designating King as the residential parent and legal custodian of their two youngest children. The trial court followed the mandates of
{¶8} The trial court also considered whether it was in the children‘s best interests to reallocate the parties’ parental rights and responsibilities. Scott argues that the court abused its discretion in making its best interests determinations by failing to
{¶9} Finally, Scott contends the trial court abused its discretion by failing to find “the child‘s present environment endangers significantly his physical health or his mental, moral, or environmental development.” However, to support her argument she points to an outdated version of the statute. And because the current statutory provision contains no such requirement, we reject her argument.
I. FACTS
{¶10} Scott appeals from the trial court‘s judgment reallocating the parties’ parental rights and responsibilities for her two youngest children. In the divorce decree the trial court found it was in the children‘s best interests to designate Scott as their residential parent and legal custodian. Subsequently, she pleaded guilty to misdemeanor charges of aiding and abetting and receiving stolen property and received a 20-day jail sentence.
{¶11} As a result of Scott‘s incarceration King filed an ex parte motion to modify allocation of parental rights and custody. He asked the court to modify its previous order and designate him as the residential parent and legal custodian of the parties’ three minor children. The trial court granted King‘s ex parte motion and designated him as the temporary residential parent and legal custodian of the children. Scott filed a motion objecting to the trial court‘s temporary order and requested an evidentiary hearing.
{¶12} Subsequently both parties filed numerous motions, including motions for contempt; the court held a hearing on King‘s motion to reallocate the parties’ parental rights and responsibilities and Scott‘s pending motions for contempt. After both parties testified the court found that Scott failed to prove her charges of contempt and denied the motions. In addition it found that a substantial change of circumstances had occurred under
II. ASSIGNMENTS OF ERROR
{¶13} Scott raises eight assignments of error for our review:
- TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S TIMELY REQUEST FOR FINDINGS OF FACT AND CONCLUSION[SIC] OF LAW ON THE APRIL 29, 2013 JUDGMENT ENTRY.
- TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO APPOINT A GUARDIAN AD LITEM AND FAILED TO INTERVIEW THE PARTIES’ SON, AFTER APPELLANT AND THE PARTIES’ SON BOTH REQUESTED A GUARDIAN AD LITEM AND TO BE INTERVIEWED.
- TRIAL COURT ABUSED ITS DISCRETION WHEN IT SUSPENDED APPELLEE WILLIAM KING‘S CHILD SUPPORT ORDER AND VIOLATED APPELLANT‘S DUE PROCESS.
TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO COMPLY WITH THE MANDATE OF R.C. 2705.031(C) AND ISSUE A SUMMONS OF APPELLANT‘S CONTEMPT MOTIONS AND INSTEAD DENIED EACH OF APPELLANT‘S CONTEMPT MOTIONS AGAINST APPELLEE.- TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ENSURE A COMPLETED CHILD SUPPORT WORKSHEET WAS INCLUDED IN THE RECORD WHEN THE TRIAL COURT MODIFIED CUSTODY.
- TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONDUCT A CONTEMPT HEARING BEFORE DENYING APPELLANT‘S CONTEMPT MOTIONS WHEN APPELLEE STOPPED APPELLANT‘S VISITATION FOR (2) MONTHS AND INSTEAD ENTERED A SEPARATE ENTRY ORDERING APPELLEE TO JUST OBEY ALL COURT ORDERS AND NOT DENY APPELLANT VISITATIONS WITHOUT A COURT ORDER.
- TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO COMPLY WITH
R.C. 3109.04 AND MODIFIED CUSTODY FROM APPELLANT TO APPELLEE. - TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER THE BEST INTEREST OF THE CHILDREN DURING ANY TIME OF THE PROCEEDINGS.
III. LAW AND ANALYSIS
A. Findings of Fact & Conclusions of Law
{¶14} In her first assignment of error Scott claims that the trial court abused its discretion by denying her request for findings of fact and conclusions of law for its April 29, 2013 entry continuing King‘s temporary custody of their two youngest children. Specifically, she asserts that under
{¶15}
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to
Civ.R. 58 , or not later than seven days after the party filing the request has been given notice of the court‘s announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.***
{¶16} “[A] trial court has a mandatory duty under
{¶17} “Judgment,” as defined by
B. Request for GAL & In-camera Interview
{¶18} In her second assignment of error Scott argues that the trial court abused its discretion by failing to appoint a GAL and interview the children pursuant to
{¶19} To support her assignment of error Scott points to the motions she filed on March 15, 2013, and March 22, 2013, and claims she requested a GAL in each filing. However her March 15, 2013 motion only addressed objections to the court‘s ex parte order designating King as the temporary residential parent and legal custodian of the children. Thus, we focus on her March 22, 2013 “motion for a guardian ad litem.”
{¶20} Scott made her request for a GAL in the March 22 motion “pursuant to [
{¶21}
(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best
interest of the children. In determining the child‘s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation. (2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.
***
{¶22}
{¶23} Our review of the record shows that the court did not interview the children before entering its final judgment, nor did Scott request such an interview in her March 22, 2013 motion.1 Accordingly, the court was not required under
(although appellant requested a GAL, the court was not required to appoint
{¶24} Before taking evidence at July 8, 2013 hearing, the court acknowledged Scott‘s request to appoint a GAL and stated that due to its inability to assure payment it would not appoint a GAL. The trial court had earlier found that both parties still owed payment to the original GAL from their divorce proceeding and ordered them to “pay all outstanding GAL fees within 30 days, or as agreed to with the GAL.” Despite this, Scott points to no evidence that she ever made any payment to the GAL following the court‘s order. In its September 30, 2013 entry the court confirmed that the GAL fees from the original action remained unpaid. Due to these financial concerns, it was not unreasonable, arbitrary or unconscionable for the court to deny her request.
{¶25} Scott also argues that because the parties’ oldest son filed a letter asking to speak with the court and for the appointment of a GAL for himself and his two younger siblings, the court was required to comply with
C. Summons Requirement in Contempt Action
{¶27} Under
{¶28} It is not clear from her brief whether Scott is attempting to raise her own due process claim or that belonging to King. We look initially at whether Scott suffered a denial of due process due to the court‘s purported failure to issue subpoenas to King and bring him properly before the court to answer for Scott‘s claims of contempt. In making our analysis we assume for purposes of argument that the court failed to issue a proper summons and order to show cause to King. However, the record clearly reflects King was present and subject to examination by Scott and the court. Accordingly, any purported error in the court‘s procedure could only be harmless in light of King‘s appearance and submission to examination.
{¶29} Scott also seemingly argues that the trial court failed to provide King with the required notice of her allegations of contempt and violated his due process rights. However, we decline to address the merits of her claims. Even assuming, arguendo, this to be true she cannot establish standing to raise King‘s right to due process or how
D. Child Support
{¶30} In her third assignment of error Scott argues that the trial court abused its discretion by granting King‘s motion to suspend child support after awarding him temporary custody of the children. Specifically, she contends that because their oldest son remained in her custody and King was “thousand[s] of dollars in arrears,” the court should have denied his motion. In her fifth assignment of error Scott contends that the trial court abused its discretion by failing to include a child support worksheet in the record as required by
{¶31} Appellate courts generally review a trial court‘s decision involving a modification of child support under an abuse of discretion standard. Harless v. Lambert, 4th Dist. Meigs No. 06CA6, 2007-Ohio-2207, ¶ 10. Motions for modification of child support are frequently filed when a party wants to reduce or suspend his or her obligation based on a change in circumstances. In re Marriage of Heidnik, 11th Dist. Lake No. 2012-L-031, 2013-Ohio-1289, ¶ 30.
{¶32} Although Scott cites
In any action in which a court child support order is issued or modified, in any other proceeding in which the court determines the amount of child support that will be ordered to be paid pursuant to a child support order, or when a child support enforcement agency determines the amount of child support that will be paid pursuant to an administrative child support order, the court or agency shall calculate the amount of the obligor‘s child support obligation in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of sections
3119.02 to3119.24 of the Revised Code. The court or agency shall specify the support obligation as a monthly amount due and shall order the support obligation to be paid in periodic increments as it determines to be in the best interest of the children. In performing its duties under this section, the court or agency is not required to accept any calculations in a worksheet prepared by any party to the action or proceeding.
Thus a trial court must calculate child support using the statutory child support worksheet. State ex rel. Athens Cty. Child Support Enforcement Agency v. Patel, 4th Dist. Athens No. 05CA20, 2006-Ohio-2951, ¶ 8. In addition,
{¶33} On March 11, 2013, King filed a motion to modify child support requesting that the trial court “reduce or suspend child support,” for the two minor children that were in his temporary custody. In his motion he acknowledged that, against his wishes, their oldest son wanted to remain in Scott‘s home. On March 25, 2013, the trial court suspended its previous order requiring King to pay child support effective March 11, 2013. Scott filed a motion to vacate the entry and asserted that King was still required to pay support for their oldest son in her custody and his arrears. However, following the hearing on the ex parte order of custody, the court continued King‘s temporary custody of the parties’ two youngest children and designated Scott as the residential and custodial parent of their oldest son. The court also ordered the CSEA to recalculate child support based on King “having custody of two children” and Scott “having custody of one child,” and clarified “[t]he redetermination shall be effective March 11, 2013.”
{¶34} Thereafter on May 7, 2013, CSEA filed a notice with the court of its recalculation of child support based on King having custody of two children and Scott having custody of one child. Under this custody arrangement and “the factors using a split custody worksheet,” CSEA recommended that King pay $68.51 per month when health insurance is provided and $124.37 per month when health insurance is not provided effective March 11, 2013. The recommendation also addressed King‘s arrears and attached a “child support computation worksheet split parental rights and responsibilities.” The magistrate adopted CSEA‘s Administrative Adjustment Review Notification, and made the same findings of child support based on CSEA‘s recommendation. The magistrate also notified the parties that they may file objections
{¶35} The court‘s order clearly contradicts Scott‘s claim that the parties’ oldest son “went seven months without support.” Because the order was retroactive to the date of King‘s motion for modification, there was no suspended period of time where he was not required to pay support or arrears as Scott contends. Accordingly, we cannot say its decision to grant King‘s motion was unreasonable, arbitrary or unconscionable and we reject her argument.
{¶36} Likewise, we find her contention that the trial court failed to include a completed child support worksheet in the record meritless. CSEA filed a completed worksheet as part of its recommendation. This recommendation was journalized as part of the record and the magistrate explicitly adopted CSEA‘s notification in his decision. See Sullivan v. Howard, 11th Dist. Lake No. 2010-L-102, 2011-Ohio-2329, ¶ 25 (adopting worksheet prepared by CSEA is an acceptable method of fulfilling the requirement to have a completed worksheet made part of the record). However, Scott acknowledges none of these filings in her argument. Based on the magistrate‘s adoption of the CSEA‘s recommendation, which contained a completed child support worksheet, we find her assignment of error meritless.
E. Hearing on Scott‘s Contempt Motions
{¶37} In her sixth assignment of error Scott argues that the trial court abused its discretion by failing to hold a hearing before ruling on her motions for contempt.
{¶38} Contempt sanctions arising from one parent‘s failure to honor a court-ordered visitation schedule usually constitute civil contempt because the finding is designed to coerce future compliance with the court order. As we have already noted,
{¶39} Based on King‘s alleged denial of her scheduled parenting time and taking the children out of the state without a court order, Scott points to five contempt motions that she filed after the final hearing, but before the trial court entered its judgment.2 In its September 30, 2103 entry the court specifically denied three of Scott‘s contempt motions she filed before the July 8, 2013 hearing date. However, she claims that because the five motions she filed after the hearing date were still pending when the court issued its entry on September 30, 2013, its conclusory statement “the contempt motions are denied,” also referred to these motions. We disagree.
F. Reallocation of Parental Rights & Responsibilities
{¶41} Scott also attacks the merits of the trial court‘s judgment and in her seventh and eighth assignments of error, argues that the court abused its discretion by modifying its previous custody order and designating King as the residential parent and legal custodian of their two youngest children. Specifically, she argues that her change in circumstances had no adverse effect on the children as required by
{¶42} Generally, decisions concerning child custody matters rest within the trial court‘s sound discretion. In re C.D.M., 4th Dist. Hocking No. 13CA1, 2013-Ohio-3792, ¶ 12. “‘Custody determinations are some of the most difficult and agonizing decisions a trial judge must make, and, therefore, appellate courts must grant wide latitude to their
{¶43} The reason for this deferential 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. Davis at 418. “This is even more 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.
{¶44} In exercising this discretion to modify parental rights and responsibilities, courts are guided by
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:
* * *
(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.
{¶45} Thus, before the trial court could modify the allocation of parental rights and responsibilities it must find: 1.) that a change in circumstances of the children or Scott has occurred since the last decree; 2.) that modification is necessary to serve the best interest of the children; and 3.) that the advantages of modification outweigh the potential harm. Enz, 4th Dist. Scioto No. 10CA3357, 2011-Ohio-1229, at ¶ 22.
1. Change in Circumstances
{¶46} “A change in circumstances is the threshold requirement intended to provide some stability to the custodial status of the child.” Jones v. Jones, 4th Dist. Highland No. 06CA25, 2007-Ohio-4255, ¶ 36, citing In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 15. “This is a high standard, as a ‘change’ must have occurred in the life of the child or the parent before the court will consider whether the current designation of residential parent and legal custodian should be altered.” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 33.
{¶47} “The requirement that a parent seeking modification of a prior decree allocating parental rights and responsibilities show a change of circumstances is purposeful.” Id. at ¶ 34. “‘The clear intent of [
{¶48} However, appellate courts “must not 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 interests of the child.” Davis, 77 Ohio St.3d at 420-421. Because of the need for stability in the child‘s life, any change in circumstances “must be a change of substance, not a slight or inconsequential change.” Id. at 418.
{¶49} Here, Scott argues in her seventh assignment of error that the trial court “failed to satisfy”
{¶50} In its entry, the trial court stated:
The Court earlier found and confirms its findings that there was a substantial change of circumstances as required by Revised Code 3109.04(E)(1) and that a modification of the prior decree of custody is necessary to serve the best interests of [the children]. Specifically [Scott] was incarcerated as a result of a conviction in the Tiffin Municipal Court on February, 14, 2013. At the time of the filing of the Judgment Entry and
Decree of Divorce on January 3, 2012 the Court found both Plaintiff and Defendant to be capable, loving parents. Either could name[sic] been designated the residential parent. For the reasons set forth in the decree, the Court determined it was in the best interests of the children to designate Defendant-Mother as the residential parent. There was however a substantial change in circumstances as to Defendant-Mother on February 14, 2013. On that date she entered a plea of guilty and was found guilty of a violation of Revised Code 2923.03(A)(2) Aiding & Abetting. * * * She was ordered to pay a fine and was sentenced to 180 days in jail, with 160 days conditionally suspended. On February 14, 2013 Defendant also entered a plea of guilty and was found guilty of a violation of Revised Code 2913.51(A) Retaining Property. She was ordered to pay a fine and was sentenced to 180 days in jail, with 160 conditionally suspended. Jail time was to be served concurrently. (The Court confirmed that she was in jail prior to issuing the ex parte order changing custody on March 6, 2013). Defendant urged at hearing that incarceration itself is not enough to constitute a change in circumstances and that is relevant only to any adverse impact. There is however more than the fact of criminal conviction and incarceration. Defendant has previously been convicted in federal court and served a prison term. She should therefore be more aware of her conduct and possible consequences of her conduct that otherwise would be the case. Additionally, the incidents which led to her convictions in the Tiffin Municipal Court involved her children. Plaintiff‘s Exhibit “G” details * * * the parties’ 16 year old son, and Haley‘s involvement, the parties’ adult daughter. The adverse effects on the children are obvious. Perhaps they were subject to criminal sanctions. More importantly, what is the lesson the children learned from their involvement in the criminal conduct. The Court notes this incident did not directly involve the two younger boys subject to this custody motion. Their mother however went to jail. She made arrangements for their care but did not advise Plaintiff-Father she was going to jail. He found out by looking at the Court‘s online docket. The Court should not and will not overlook Defendant‘s conduct. Going to jail under these circumstances is a substantial change in circumstances of the mother.
{¶51} We have recognized that the incarceration of a custodial parent may constitute a “change of circumstances.” Hubbard v. Anderson, 4th Dist. Scioto No. 96CA2440, 1998 WL 34150, *4 (Jan. 21, 1998). In this case, it was not an abuse of discretion for the trial court to determine that Scott‘s incarceration and convictions constituted a change of circumstances. Although she admits that her crimes involved the parties’ daughter and oldest son, who was a minor at the time, Scott claims that
2. Best Interests
{¶52} After finding that a change of circumstances exists, the trial court next must consider whether a modification of parental rights and responsibilities is in the child‘s best interests.
(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
(d) The child‘s adjustment to the child‘s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child * * *;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{¶53} In her eighth assignment of error, Scott argues that the trial court abused its discretion by failing to consider King‘s actions in deciding whether a modification of parental rights and responsibilities was in the children‘s best interests. She does not point to a specific factor to support her argument, but rather contends that
{¶54} The trial court found:
There is substantial evidence as to the best interests of the minor children. The Court finds Plaintiff has a large extended family in the Jackson County area where he resides that provides opportunity for the children to interact with others. The Court finds the children have adjusted to school well, are excelling in their academics and are involved in the community. Plaintiff‘s Exhibit ‘A’ shows the children are doing better in school now than in their previous school. Exhibit ‘C’ reflects various activities of the children. Exhibit ‘D’ shows the children are in good health.
The Court therefore finds by clear and convincing evidence that modification of parental rights and responsibilities is in the best interests of the minor children, and that the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶55} Scott did not request findings of fact and conclusions of law pursuant to
{¶56} Here, nothing in the record suggests that the court failed to consider all the evidence presented before making its best interest determination. At the hearing, Tod Scott testified about his relationship with the parties’ children and denied abusing them. He described his relationship with the parties’ youngest two children as “great,” and stated neither is afraid of him. Scott questioned King about his relationship with their oldest son and removing the younger children from school without a court order. Both parties testified about their visitation issues and Scott questioned King about the specific instances she alleged he denied her scheduled parenting time with the children.
{¶57} In its entry the court found that based on the evidence the children had adjusted well to their father‘s home and new school. As the trial court pointed out, their grades had improved and they were involved in several community activities. The court also noted that King has a large extended family in the Jackson County area. We cannot say that the trial court abused its discretion by determining a modification of parental rights and responsibilities would serve the children‘s best interests.
3. Harm
{¶58} In the final step of the court‘s analysis, it must determine whether the advantages of modification outweigh the likely harm.
{¶59} To support her argument, Scott cites
(1) * * * [T]he court shall not modify a prior custody decree 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, [or] his custodian * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian * * * designated by the prior decree, unless one of the following applies:
* * *
(c) The child‘s present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”
{¶60} However, the current statutory provision regarding a modification of a prior allocation of parental rights and responsibilities does not contain the same language regarding the child‘s present environment. Jones at ¶ 48. “Effective April 12, 1990, former
IV. CONCLUSION
{¶61} In conclusion, the trial court complied with
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
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.