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In re B.H.H.

Court of Appeals of Ohio, Twelfth District, Clermont

October 30, 2017

IN THE MATTER OF: B.H.H.

         APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2013 JH 20595

          Susan Zeller Dunn, for appellant.

          Jeffrey Hale, for appellee.

          OPINION

          M. POWELL, J.

         {¶ 1} Appellant, M.S.H. ("Father"), appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, denying his motion to modify a prior custody order.

         {¶ 2} Father and appellee, A.M.T. ("Mother"), are the parents of a ten-year-old son. The parties were never married. On November 12, 2014, the parties entered into a joint shared parenting plan pursuant to R.C. 3109.04(D)(1)(a)(i). By entry filed the same day, the juvenile court adopted the parties' shared parenting agreement as the order of the court. Both parents were designated as residential parents. Father was awarded parenting time from Thursday after school until Sunday at 4:00 p.m.; Mother was awarded parenting time from Sunday at 4:00 p.m. until Thursday morning when the child goes to school.

         {¶ 3} In July 2015, Father filed a Motion to Modify Order Regarding Custody and Allocation of Parenting Time. The motion alleged there "ha[d] been a change of circumstances regarding the care, custody and control of the minor child, and it is in the best interest of the minor child to grant Father sole custody." In an affidavit attached to the motion, Father asserted that Mother's relocation in violation of the shared parenting agreement and her failure to communicate with Father regarding the child's enrollment for the 2015-2016 school year constituted changes in circumstances for the child.

         {¶ 4} On March 28, 2016, Father filed a Motion to Modify Order Regarding Custody, Allocation of Parenting Time and Child Support. Once again, Father asserted there "ha[d] been a change of circumstances regarding the care, custody and control of the minor child, and it is in the best interest of the minor child to grant Father sole custody." Neither motion specifically sought termination of the shared parenting agreement.

         {¶ 5} Father's March 28, 2016 motion proceeded to an evidentiary hearing on August 29, 2016.[1] Father, the child's therapist, the child's teacher in first, second, and third grades, and the school principal testified on behalf of Father; Mother testified on her own behalf. Testimony at the hearing revealed that the child is very intelligent with behavioral issues. Specifically, the child is unwilling to complete his homework and will cry when asked to do so. He is very easily flustered and becomes "frustrated about really small things" and as a result, he hits and scratches himself at school and has had several toileting incidents while in school. The child started seeing the therapist in July 2015 and typically sees her on a weekly basis during Father's parenting time. The therapist has diagnosed the child with selective mutism, a form of anxiety disorder. At the time of the hearing, the child was almost nine years old and had just started third grade.

         {¶ 6} Testimony at the hearing further revealed that Father is married to a woman who has two children and who lives in Florence, Kentucky. Father has maintained his residence in Mt. Orab, Ohio and divides his time between the two residences. Mother relocated to West Union, Ohio and lives with her boyfriend. Mother's relocation was anticipated at the time the parties entered into the shared parenting agreement on November 12, 2014, and occurred mere weeks later. The parties agreed that in return for Mother's relocation, the child would remain in his current school and Father's child support obligation would be reduced.

         {¶ 7} In an order filed on September 14, 2016, the juvenile court treated Father's motion as one to modify a prior custody decree pursuant to R.C. 3109.04(E)(1)(a), thereby requiring the court to first find a change in circumstances before considering whether the modification was in the child's best interest. The juvenile court found that the change in circumstances "must have arisen subsequent to the Shared Parenting Plan, or [was] unknown to the Court at the time, " and "must be as to the minor child or the residential parent, which is in this case the Mother."

         {¶ 8} The juvenile court found that Father had failed to establish a change in circumstances as required under R.C. 3109.04(E)(1)(a) and denied Father's motion as follows:

In the instant cause, there are only two changes in the parties' and the minor child's circumstances: (1) The Mother relocated to West Union, Ohio; however, this was anticipated at the time of the execution of the parties' Shared Parenting Plan, the Father agreed to a downward deviation of child support in return for this relocation, and it happened mere weeks after the execution of the Plan in 2014; and (2) The Father remarried and currently divides his time between his home in Mt. Orab and his wife's residence in Florence, Kentucky.
All other circumstances regarding the child's behavioral challenges, his toileting issues, his dental problems, as well as the parties' inability to communicate effectively other than by text or e-mail, were in existence prior to, and at the time of, the ...

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