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In re M.P.

Court of Appeals of Ohio, Second District

September 13, 2013


Juvenile Appeal from Common Pleas Court Trial Court Case No. C41808

DAVID S. PETERSON, Atty. Reg. #0007836, and ROBERT HENDRIX, Atty. Reg. #0037351, Peterson and Peterson, Attorneys for Plaintiff-Appellee

MARK EDWARD STONE, Atty. Reg. #0024486, and BRIAN A. KRUSE, Atty. Reg. #0087411, Attorney for Defendant-Appellant



(¶ 1} Pamela P. appeals the trial court's decision to change custody of her minor son Johnny[1] from her to Rodney P., Johnny's father and the appellee, after she moved with Johnny from Ohio to Florida. Because the trial court's decision is supported by competent and credible evidence, we affirm.


(¶ 2} In 2010, the trial court entered an agreed judgment and order that designated Pamela Johnny's custodial parent. In 2011, Pamela filed a notice that she intended to relocate from Xenia, Ohio, to Punta Gorda, Florida. Rodney responded by filing a complaint for custody. The matter was referred to a magistrate who concluded that the custodial parent could not be changed because Pamela's mere intent to move did not satisfy the statutory change-in-circumstances requirement, R.C. 3109.04(E)(1)(a), which must be satisfied before an existing custody order can be modified. Rodney and Pamela each filed objections to the magistrate's decision.

(¶ 3} In November 2011, the trial court sustained Rodney's objections. The court found that Pamela had all but moved to Florida and that this is sufficient to satisfy the change-in-circumstances requirement. Consequently, the court modified the 2010 custody order and designated Rodney the custodial parent. Pamela appealed, and we reversed. See In The Matter of M.P., 2d Dist. Greene No. 2011 CA 71, 2012-Ohio-2334. We concluded that Pamela's mere intent to move to Florida was not sufficient to satisfy the change-in-circumstances requirement, and we remanded the case for further proceedings.

(¶ 4} In June 2012, on remand, the trial court entered an order modifying Rodney's parenting-time schedule in light of Pamela's move to Florida. The following month, Rodney filed a motion for custody. In February 2013, after a hearing, the trial court sustained the motion. The court found that Pamela had moved with Johnny to Florida to live with a man named Tracy Y. Pamela and Johnny had been living in Ohio with Tracy, when he moved to Florida and invited them both to move with him. The court found that a volatile atmosphere surrounded Tracy. An altercation with his daughter's husband resulted in Tracy being convicted of attempted assault and criminal damaging. The court also found that all of Johnny's friends and family lived in Ohio and that he had no connection to Florida. The court modified the 2010 agreed order, designating Johnny's custodial parent as Rodney.

(¶ 5} Pamela appealed.


(¶ 6} "[C]ustody issues are some of the most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must have wide latitude in considering all the evidence before him or her * * * and such a decision must not be reversed absent an abuse of discretion." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). The trial court must be permitted to determine the credibility of witnesses and their testimony. Id. at 419. "'A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not.'" Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984). In custody cases, the abuse-of-discretion standard is this: "'Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court.'" Id. at 418, quoting Bechtol v. Bechtol 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.

(¶ 7} R.C. 3109.04(E)(1)(a) restricts a court's authority to change a child's custodial parent. "[B]efore a trial court modifies an existing order of custody, it is * * * required to find, based on facts that have arisen since the prior decree or that were unknown to it at that time, that a change has occurred in the circumstances of the child [or] the child's residential parent * * * [and] that the modification is necessary to serve the best interest of the child." In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 19, citing R.C. 3109.04(E)(1)(a). The court also is required to find that one of the three circumstances in R.C. 3109.04(E)(1)(a)(i)-(iii) applies. The third is pertinent here: "The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child." R.C. 3109.04(E)(1)(a)(iii). Pamela assigns three errors to the trial court's custody decision. Each challenges one of these required findings made by the court.

(¶ 8} We first address, though, two fundamental misconceptions that underlie many of Pamela's arguments. Both misconceptions concern the June 2012 order modifying Rodney's parenting-time schedule. Pamela asserts that in this order the trial court approved her move to Florida with Johnny. We disagree. This order does not at all evaluate the merits of Pamela's move. When a residential parent files a notice of intent to relocate, the court may "determine whether it is in the best interest of the child to revise the parenting time schedule for the child." R.C. 3109.051(G)(1). That is exactly what the trial court here did. Also, Pamela asserts that the June 2012 order is the existing custody order modified by the trial court. This too is incorrect. The order assumes custody and ...

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