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Brown v. Brown

Court of Appeals of Ohio, Second District

August 9, 2013

HOLLI BROWN Plaintiff-Appellant
v.
TROY BROWN Defendant-Appellee

Civil Appeal from Common Pleas (Court, Domestic Relations) Trial Court Case No. 2010-DR-136

REBEKAH S. NEUHERZ, Atty. Reg. #0072093, Neuherz Law Offices, LLC, Attorney for Plaintiff-Appellant.

RAYMOND A. GROGAN, JR., Atty. Reg. #0084002, Attorney for Defendant-Appellee.

OPINION

HALL, J.

(¶ 1} Holli Brown, the residential parent of the parties' children, appeals the Champaign County Domestic Relations Court's order that if she moves to South Carolina, Troy Brown, the appellee, would be designated the residential parent. Finding no error, we affirm.

I. The Relocation Restriction

(¶ 2} The parties, Holli and Troy Brown, are the mother and father of three minor children. When the parties were divorced in 2011, Mother was designated the children's residential parent and Father was given parenting time. In 2012, Mother decided to move from her current home in Champaign County, Ohio, to South Carolina for a job opportunity and to be closer to her parents and sister. So she filed a notice of intent to relocate there with the children. Father objected and filed a motion asking the court to designate him the children's residential parent.

(¶ 3} In October 2012, after an evidentiary hearing, the trial court issued a written decision and order. The court found that the children's best interest is to remain where they are. Also, in addition to finding that the harm to the children from the move would outweigh the move's benefits to them, the court found that the move is a change in circumstances. The court concluded that these findings satisfy the requirements in the statutory provision that controls modifications to "a prior decree allocating parental rights and responsibilities, " R.C. 3109.04(E)(1)(a). The court did not designate Father the residential parent but conditioned his designation on Mother's move. The court ordered that if Mother moves to South Carolina, it would change the children's residential parent to Father, but that if Mother remained in Champaign County, the prior orders would remain in effect.

(¶ 4} Mother appealed.

II. Review of the Order

(¶ 5} Mother assigns three errors to the trial court's order. In the first assignment of error, she alleges that the court erred in finding that the move is a change in circumstances. In the second assignment of error, Mother alleges that the court erred in preventing her from moving with the children. And in the third assignment of error, she alleges that the court erred in finding that the children's best interest is to remain where they are.

A. The Change-in-Circumstances Finding

(¶ 6} R.C. 3109.04(E)(1)(a) pertinently provides that, unless the court finds, among other things, that a change in the circumstances has occurred, "[t]he court shall not modify a prior decree allocating parental rights and responsibilities." The trial court found that the move to South Carolina is a change in circumstances; Mother challenges this finding; Father defends it. All assume that R.C. 3109.04(E)(1)(a) applies. We determine that with regard to the specific nature of the court's prospective and conditional court order, the statutory limitation does not apply.

(¶ 7} R.C. 3109.04 governs how a court allocates between the parties the rights and responsibilities for the care of their children. If the court does not order shared parenting, it must "allocate the parental rights and responsibilities" to one parent and "designate that parent as the residential parent and the legal custodian" of the children. R.C. 3109.04(A)(1). "[S]tability in the lives of children" is "a desirable component of their emotional and physical development." In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 28. So "'to spare children from a constant tug of war, '" the statute contains the provision in R.C. 3109.04(E)(1)(a) that controls changes to the residential parent. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997) (saying that this is the provision's "'clear intent'"), quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982). The provision "is designed to provide ...


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