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Hartley v. Hartley

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

JENNIFER LYNNE HARTLEY Plaintiff-Appellee
v.
SHAWN HARTLEY Defendant-Appellant

         Domestic Relations Appeal from Common Pleas Court Trial Court Case No. 02-DR-1816

          BRIAN A. KRUSE, Atty. Reg. No. 0087411, 10532 Success Lane, Dayton, Ohio 45458 Attorney for Plaintiff-Appellee

          JEREMY M. TOMB, Atty. Reg. No. 0079664, 124 West Main Street, Troy, Ohio 45373 Attorney for Defendant-Appellant

          OPINION

          HALL, P.J.

         {¶ 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. in camera.

         {¶ 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 reasoned:

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 "prior decree."

         {¶ 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 ...


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