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Bentley v. Harper

Court of Appeals of Ohio, Fourth District, Scioto

December 19, 2019

JACOB R. BENTLEY Plaintiff-Appellee,
v.
LORI A. HARPER Defendant-Appellant.

          Matthew F. Loesch, Portsmouth, Ohio, for appellant.

          Robert M. Johnson, Portsmouth, Ohio for appellee.

          DECISION AND JUDGMENT ENTRY

          Michael D. Hess, Judge.

         {¶1} 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.

         {¶2} 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.

         I. FACTS

         {¶3} 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.

         {¶4} 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.

         {¶5} Harper appealed.

         II. ASSIGNMENTS OF ERROR

         {¶6} 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.

         III. LAW AND ANALYSIS

         A. Standard of Review

         {¶7} 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.

         {¶8} "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).

         B. Intent to Relocate

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 ΒΆ 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 ...


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