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Baker v. Baker

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

LA SHANDA E. BAKER Plaintiff-Appellant
v.
PORTIEA BAKER Defendant-Appellee

          Trial Court Case No. 2007-DR-370 (Domestic Relations Appeal)

          CHARLES W. SLICER, III, Atty. Attorney for Plaintiff-Appellant

          MARK A. FISHER, Atty. Attorney for Defendant-Appellee

          OPINION

          TUCKER, J.

         {¶ 1} Plaintiff-appellant La Shanda Baker appeals from an order of the Montgomery County Court of Common Pleas, Domestic Relations Division, which reallocated custody of her minor children to her ex-husband Portiea Baker. Ms. Baker contends that the custody modification is not supported by the record. She further contends that the trial court lacked subject matter jurisdiction over the matter.

         {¶ 2} We conclude that the trial court did have subject matter jurisdiction over this action and that the record supports the modification of custody. Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 3} La Shanda and Portiea Baker were married in 1991. They have two minor children as a result of their marriage.[1] Ms. Baker filed a complaint for divorce in March 2007. Mr. Baker filed an answer and counterclaim in which he sought paternity testing of the youngest child. Subsequent DNA testing confirmed that he is the father. A decree of divorce was filed by the Montgomery County Court of Common Pleas, Domestic Relations Division, in January 2008. Ms. Baker was designated as sole legal custodian and residential parent of both children. Mr. Baker was ordered to pay child support in the amount of $270 per month.

         {¶ 4} In February 2012, Ms. Baker, along with the children, moved to Texas for purposes of employment. In July 2012, the Montgomery County Department of Job & Family Services filed a motion seeking to hold Mr. Baker in contempt, alleging that he was over $14, 000 in arrears with regard to child support. Mr. Baker obtained counsel in October 2012. A finding of contempt was issued, and an agreed order was entered permitting Mr. Baker to purge the contempt by tendering immediate payment of $1, 000 and by remaining current on the support and arrearage payments.

         {¶ 5} In January 2013, Mr. Baker filed a motion to hold Ms. Baker in contempt, alleging that she had moved to Texas without informing him of the move. The motion was voluntarily dismissed in March 2013. In July 2013, he again filed a motion seeking to hold Ms. Baker in contempt. At the same time, he filed a motion seeking modification of custody and alleging that he had not seen his children since they moved to Texas. Mr. Baker voluntarily dismissed both motions in February 2014.

         {¶ 6} In November 2016, Mr. Baker again filed a motion for a modification of custody and to hold Ms. Baker in contempt. A hearing was conducted on August 1, 2017. Ms. Baker appeared pro se. At the end of the hearing, the magistrate interviewed both of the children in chambers.[2]

         {¶ 7} The magistrate issued a decision in which it was noted that, as of June 30, 2017, Mr. Baker's child support arrearage was $15, 465.79. The magistrate further found the following:

Defendant's concerns are plaintiff's unannounced and unilateral removal of the children to Texas. This has impacted defendant's contact and companionship with the children. It was uncontroverted that plaintiff neither contacted the Court nor defendant in writing about her relocation to Texas. It was disputed whether plaintiff "told" the defendant. Defendant was credible in his testimony of no notice.
Defendant did not see the children as a result of the relocation. Defendant was able to see the children in the summer of 2017 because of the pre-hearing order. Defendant had parenting time in 2016. Defendant has provided his son with a cell phone in order to maintain communication.
Plaintiff confirmed several incidents wherein defendant's access to the children was restricted by her. Defendant arranged airline travel for the children around Christmas and plaintiff would not allow the children to go because school had not yet recessed. Another incident involved defendant driving to Texas and not being able to take the children out of school for the visit. In both situations there was no testimony that the children had tests or other reason [sic] for not missing some school. Another incident involved the children coming [to Ohio] for a funeral. Defendant could not have the children as they were with "other" family.
Defendant's other concerns [sic] involve his son missing football participation because plaintiff did not obtain a physical. And defendant had concerns that when he sent his son a requested bicycle, no one in Texas would help him put it together or pump up the tires. Defendant sent his son tools and an air pump to accomplish this. Both of these incidents were confirmed by plaintiff but not adequately explained.
The children were interviewed as to their wishes and concerns. Both articulated that they wanted to stay with their father.
The report of the Family Relations Department Investigator confirms the difficulties in defendant having contact with the children due to the relocation. The report confirmed the children's inability to communicate with defendant. The parties are not able to communicate with each other but it appears that defendant has, at least, tried to improve communication with the children via the cell phone.
The Family Relations Department report also confirms that the children wish to live with the ...

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