Court of Appeals of Ohio, Second District, Montgomery
Relations Appeal from Common Pleas Court Trial Court Case No.
A. KRUSE, Atty. Reg. No. 0087411, 10532 Success Lane, Dayton,
Ohio 45458 Attorney for Plaintiff-Appellee
M. TOMB, Atty. Reg. No. 0079664, 124 West Main Street, Troy,
Ohio 45373 Attorney for Defendant-Appellant
1} Shawn Hartley appeals from the trial court's
decision and judgment entry overruling his objections to a
magistrate's decision and sustaining plaintiff-appellee
Jennifer Hartley's motion for a change of custody
regarding their minor child.
2} Shawn advances six assignments of error. In his
first and second assignments of error, Shawn challenges the
trial court's finding of a "change in
circumstances" sufficient to justify reallocating
custody to Jennifer as being against the weight of the
evidence and an abuse of discretion. In his third and fourth
assignments of error, Shawn claims the trial court's
finding that reallocating custody to Jennifer was in the
child's best interest is against the weight of the
evidence and is an abuse of discretion. In his fifth and
sixth assignments of error, Shawn contends the trial
court's dismissal of his motion to modify child support,
as moot, is against the weight of the evidence and is an
abuse of discretion.
3} The record reflects that Shawn and Jennifer
divorced in 2003 after having two children together-S.H., who
was born in 1998, and M.H., who was born in 2000. Jennifer
originally was designated the residential parent of both
children. In February 2014, Jennifer was designated the
residential parent and legal custodian of S.H, and Shawn was
designated the residential parent and legal custodian of M.H.
In May 2016, eighteen-year-old S.H. was emancipated. In
August 2016, Jennifer moved for legal custody of M.H. The
matter proceeded to a hearing before a magistrate in December
2016. Shawn and Jennifer both testified at the hearing and
presented exhibits. In connection with Jennifer's custody
motion, the magistrate also interviewed sixteen-year-old M.H.
4} On March 10, 2017, the magistrate filed a
decision sustaining Jennifer's motion for legal custody
of M.H. In support, the magistrate found that Shawn
repeatedly, and over an extended period of time, had failed
to facilitate court-ordered parenting time between M.H. and
Jennifer. The magistrate concluded that Shawn had "done
nothing" to ensure M.H.'s compliance with
parenting-time orders. It also concluded that Jennifer would
"not have access to [M.H.] so long as defendant has
custody." The magistrate additionally found that Shawn
had refused to comply with a counseling order for the child.
The magistrate held that Shawn's failure to facilitate
court-ordered parenting time between M.H. and Jennifer
constituted a substantial change in circumstances justifying
an award of custody to Jennifer. The magistrate also held
that the benefit from a change of custody, namely
"continuation of the parental relationship between
mother and child, " outweighed any detriment caused by
the change. On this issue, the magistrate noted: "The
child will not have to change schools and her employment
schedule * * * may be impacted slightly. There was no
evidence that plaintiff having custody would harm the
child-the child may be slightly inconvenienced by having to
live under her mother's set of rules." Finally, the
magistrate stated: "After considering the R.C.
3109.04(F) factors and all other relevant factors, it is
found to be in the child's best interests that plaintiff
be designated the child's residential parent and legal
custodian." In support of this finding, the magistrate
As noted before, the change of custody is the only option to
effectuate plaintiff's continued and consistent contact
and companionship with [M.H.]. All other attempts have
failed. Defendant has evidenced a refusal to encourage or
facilitate parenting time. The child will be residing with
her mother and emancipated sister. The child will continue in
the same school. (Doc. #408 at 5).
5} Shawn filed objections and supplemental
objections to the magistrate's decision. The trial court
overruled the objections in a June 13, 2017 decision and
judgment entry. Among other things, Shawn objected to the
magistrate's finding that he had failed to comply with a
counseling order for M.H., that he had not encouraged or
facilitated parenting time between M.H. and Jennifer, and
that a change of custody was the only way Jennifer would be
able to exercise parenting time with M.H.
6} The trial court addressed and rejected each of
Shawn's arguments. It also independently reviewed the
record and found that Shawn's repeated failure to
facilitate and honor court-ordered parenting time between
Jennifer and M.H. constituted a substantial change in
circumstances, that awarding Jennifer legal custody of M.H.
was in the child's best interest because it would
"provide the opportunity for a mother-daughter
relationship, " and that "[t]he benefit of this
change outweighs any negligible risk of harm to the child, as
her school, work, and extracurricular activity will remain
unchanged, and she will be able to maintain a relationship
with her father pursuant to a modified Standard Order of
Parenting Time." (Doc. #439 at 9). Finally, the trial
court overruled an objection concerning child support,
finding a prior motion by Shawn to establish child support
moot because Jennifer now would have custody of M.H.
(Id. at 11). This appeal followed.
7} In his first two assignments of error, which he
briefs and argues together, Shawn challenges the trial
court's finding of a change in circumstances sufficient
to warrant a change of custody. We begin our analysis with
the applicable statute, R.C. 3109.04(E)(1)(a), which
prohibits a court from modifying custody "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] the child's residential parent." On
appeal, Shawn contends the applicable "prior
decree" was an August 8, 2016 decision and judgment
(Doc. # 390) or a March 15, 2016 agreed order (Doc. #372). He
argues that any issues involving him not cooperating with
counseling for M.H. or not facilitating Jennifer's
visitation with M.H. predated both of these dates. Therefore,
he contends no change in circumstances has occurred since the
8} We find Shawn's argument to be unpersuasive.
The August 8, 2016 decision and judgment he cites disposed of
contempt, parenting-time, and child-support issues. It also
set a hearing on a motion for modification of custody.
Significantly, however, the August 8, 2016 decision and
judgment did not reallocate parental rights. Similarly, the
March 15, 2016 agreed order he cites also addressed contempt,
parenting-time, and child support issues. Although it
referenced a motion by Jennifer to reallocate parental
rights, that motion was dismissed. (Doc. #372 at 2).
9} For purposes of R.C. 3109.04(E)(1)(a), the
reference to the "prior decree" means the last
decree that actually allocated parental rights. In re
MB., 2d Dist. Champaign No. 2006-CA-6, 2006-Ohio-3756,
¶ 10. "[T]he relevant time frame for determining
whether a change in circumstances exists is not the period
between a noncustodial parent's prior unsuccessful motion
for a change of custody and the filing of a new motion. This
is so because an unsuccessful motion for a change of custody
does not result in a decree that allocates parental
rights." Id. "As a result, when a
non-custodial parent files a second or successive motion for
a change of custody after previously having failed on a
similar motion, the starting point for determining whether a
change in circumstances exists remains the date of the decree
that actually allocated parental rights." Id.,
citing Gaines v. Pelzl, 2d Dist. Greene No.
2003-CA-60, 2004-Ohio-2043, ¶ 6; see also Pathan v.
Pathan, 2d Dist. Montgomery No. 18254, 2000 WL ...