Court of Appeals of Ohio, Fourth District, Scioto
JACOB R. BENTLEY Plaintiff-Appellee,
LORI A. HARPER Defendant-Appellant.
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
M. Johnson, Portsmouth, Ohio for appellee.
DECISION AND JUDGMENT ENTRY
Michael D. Hess, Judge.
Appellant Lori A. Harper appeals the trial court's
decision denying her request to relocate to Wyoming with her
child, L.H. Appellee Jacob R. Bentley is LH.'s father and
opposed the relocation request. Harper contends that the
trial court's decision was against the manifest weight of
the evidence and was an abuse of discretion because the trial
court failed to properly recognize the significant benefits
of a move to Wyoming. Harper also argues that the trial
court's decision infringed upon her constitutional right
to relocate with the child.
We find the trial court did not act unreasonably,
unconscionably, or arbitrarily when it denied Harper's
request to relocate. The record contains some competent and
credible evidence to support the trial court's judgment.
The trial court's findings are supported by the guardian
ad litem's recommendations, witnesses' testimony and
a number of exhibits containing communications between Harper
and Bentley. We overrule Harper's assignment of error and
affirm the trial court's judgment.
Lori Harper and Jacob Bentley are the parents of LH. They
were never married to each other. Lori Harper has been
married to Frankie Harper since 2008. L.H. was born in
September 2013 and resulted from Lori Harper's
extramarital affair with Bentley. Bentley filed a paternity
suit in January 2014. Since August 2014, Harper and Bentley
have provided for the care, custody, maintenance, and control
of L.H. through a shared parenting plan. Harper is the
residential parent for school purposes. In June 2015, Bentley
filed a motion for emergency custody of L.H. because of
concerns of physical abuse. The trial court granted an
emergency order suspending Harper's parenting time. The
parties agreed to give Harper supervised visitation rights
pending a final order on parenting time. Bentley ultimately
dismissed his claim and the trial court vacated its temporary
order granting custody to Bentley and reinstated the prior
orders, including the shared parenting plan.
In May 2018, Harper filed a notice of intent to relocate to
Cheyenne, Wyoming and requested a hearing to determine
whether it was in the child's best interest to revise the
parenting time schedule. Bentley filed his objection to
relocation and a motion to modify parental rights and
responsibilities. Bentley asked to be designated the
residential parent for school purposes and for a revised
parenting time schedule. The parties agreed to an appointment
of a guardian ad litem. The trial court held a hearing on the
matter in October 2018 and issued a decision and judgment
entry denying Harper's request to relocate, denying
Bentley's motion to modify parental rights and
responsibilities, and ordering the shared parenting plan
remain in effect.
ASSIGNMENTS OF ERROR
Harper assigns the following error for our review:
I. THE TRIAL COURTS DECISION IN THE INSTANT CASE DENYING
APPELLANTS REQUEST TO RELOCATE CONSTITUTED AN ABUSE OF
DISCRETION IN THAT ITS DECISION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
LAW AND ANALYSIS
Standard of Review
Modifications to a shared parenting plan are reviewed under
an abuse of discretion standard. Hall v. Hall, 4th
Dist. Adams No. 16CA1030, 2017-Ohio-8968, ¶ 19. An abuse
of discretion implies that the trial court acted
unreasonably, unconscionably, or arbitrarily. Lauer v.
Positron Energy Resources, Inc., 4th Dist. Washington
No. 13CA39, 2014-Ohio-4850, ¶ 9. "[I]n applying the
abuse of discretion standard, we may not substitute our
judgment for that of the trial court." Id.
"Further, * * * the judgment of a trial court should not
be overturned as being against the manifest weight of the
evidence if some competent and credible evidence supports
that judgment." Hall at ¶ 20, citing
Yannitell v. Oaks, 4th Dist. Washington No. 07CA63,
2008-Ohio-6371, ¶ 9. When an appellate court reviews a
trial court's judgment, it must generally defer to the
fact-finder's weight of the evidence and credibility
determinations. Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).
Intent to Relocate
Harper argues that the trial court abused its discretion when
it denied her request to relocate L.H. to Wyoming because it
failed to recognize the significant benefits of the move and
it improperly deprived her of a constitutional right to
relocate for the best interest of her child. She argues that
before the trial court could modify the shared parenting
plan, "there must be an initial threshold showing of a
change in circumstance" and the court must find that
modification is in the child's best interest.
In Harper's notice of intent to relocate, she gave her
intentions to move to Wyoming and asked the trial court to
determine whether it was in the child's best interest
"to revise the parenting time schedule." In
response, Bentley opposed the relocation and filed a separate
motion "to modify the allocation of parental rights and
responsibilities" on the ground that Harper's intent
to relocate 1, 300 miles away, in conjunction with her
history of attempting to alienate L.H. from him, constituted
a change in circumstance warranting a change designating him
as the residential parent for school purposes and ordering a
new parenting time schedule, or alternatively designating him
the residential and custodial parent.
In Hall v. Hall, supra, we explained the difference
between a modification of "a prior decree allocating
parental rights and responsibilities" and a modification
or termination of a "shared parenting plan."
Hall v. Hall, 4th Dist. Adams No. 16CA1030,
2017-Ohio-8968, ¶ 21-27. R.C. 3109.04(E)(1)(a) governs
"a prior decree allocating parental rights and
responsibilities" and does not allow a trial court to
modify it unless a change has occurred in the circumstances
and the modification is needed to serve the best interest of
the child. "Thus, 'before a modification can be made
pursuant to R.C. 3109.04(E)(1)(a), the trial court must make
a threshold determination that a change in circumstances has
occurred.'" Id. at ¶ 22, quoting
Gunderman v. Gunderman, 9th Dist. Medina No.
08CA0067, 2009-Ohio-3787, ¶ 9, citing Fisher v.
Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876
N.E.2d 546, syllabus. "If a change of circumstances is
demonstrated, the trial court must then determine whether the
modification is in the best interest of the child."
Gunderman at ¶ 9.
However, a trial court may modify the terms of a "shared
parenting plan" if the court determines the
modifications are in the child's best interest. R.C.
3109.04(E)(2)(b). There is no requirement that a threshold
determination of a change in circumstances be met.
Hall at ¶ 24. Likewise, the provisions
governing the court's termination of a shared parenting
plan do not require the court find a change in circumstances.
R.C. 3109.04(E)(2)(c) allows a trial court to terminate a
final shared parenting decree that includes a shared
parenting plan whenever it determines that shared parenting
is not in the best interest of the child. If a trial court
terminates a final shared parenting decree, it must issue a
"modified decree for the allocation of parental ...