[Cite as Musgrove v. Musgrove, 2011-Ohio-4460.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
ROBYN MUSGROVE, N.K.A. OWEN
Plaintiff-Appellant : C.A. CASE NO. 24640
vs. : T.C. CASE NO. 2006 DM 88
: (Civil Appeal from
ROBERT M. MUSGROVE Common Pleas
Court,
Defendant-Appellee : Domestic Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 2nd day of September, 2011.
. . . . . . . . .
Brian A. Sommers, Atty. Reg. No. 0072821, 130 W. Second Street,
Suite 840, Dayton, OH 45402-1505
Attorney for Plaintiff-Appellant
Robert M. Musgrove, 551 North Fairfield Road, Beavercreek, OH 45430
Defendant-Appellee, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Plaintiff, Robyn Musgrove, n.k.a. Owen, appeals from a
final order overruling her motion to reallocate parental rights
and responsibilities.
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{¶ 2} Robyn1 and Robert Musgrove were married on November 14,
1992. They have two minor children, Carson and Noah, who were born
during the marriage. In 2006, the parties sought dissolution of
their marriage. On March 30, 2006, the court entered a Decree of
Dissolution, which incorporated a Separation Agreement entered
into between the parties, and a Final Decree of Shared Parenting.
{¶ 3} On August 28, 2007, Robert filed a motion to terminate the
shared parenting plan. Following hearings, the magistrate found
that there had been a change in circumstances in the children since
the parties’ shared parenting decree was filed in 2006. Further,
the magistrate found that the children’s best interest would be
served by terminating the shared parenting decree and designating
Robert as the residential parent and legal custodian of the child.
Robyn filed objections to the magistrate’s decision. On July 20,
2009, the trial court overruled the objections, terminated the
shared parenting plan, and designated Robert the residential
parent of the two minor children. (Dkt. 143.)
{¶ 4} On December 11, 2009, Robyn filed a motion to modify the
July 20, 2009 final order, arguing that it would be in the best
interest of the children for her to be the residential parent and
legal custodian of the children. Following hearings, the
1
For clarity and convenience, the parties are identified
by their first names.
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magistrate overruled Robyn’s motion. Robyn filed objections to
the magistrate’s decision, which were overruled by the trial court
on April 25, 2011. Robyn filed a timely notice of appeal.
{¶ 5} On July 12, 2011, Robyn filed a motion to strike Robert’s
appellate brief because it “is improperly cited to the degree that
it creates confusion and vagueness that makes it impossible to
read.” While we agree that Robert’s brief is somewhat confusing
and vague, we decline to strike his brief. Robyn’s motion to
strike is overruled.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ACTED UNREASONABLY, ARBITRARILY, AND
UNCONSCIONABLY WHEN IT IGNORED THE INSTABILITY OF THE APPELLEE AND
FOCUSED ON THE HOME SCHOOLING OF THE CHILDREN.”
{¶ 7} The standard of review we apply to a trial court’s decision
concerning child custody is an abuse of discretion. “‘Abuse of
discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87. It is to be expected that most
instances of abuse of discretion will result in decisions that are
simply unreasonable, rather than decisions that are unconscionable
or arbitrary.
{¶ 8} “A decision is unreasonable if there is no sound reasoning
process that would support that decision. It is not enough that
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the reviewing court, were it deciding the issue de novo, would not
have found that reasoning process to be persuasive, perhaps in view
of countervailing reasoning processes that would support a
contrary result.” AAAA Enterprises, Inc v. River Place Community
Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 9} The standard for reallocating parental rights and
responsibilities is set forth in R.C. 3109.04(E)(1)(a), which
provides:
{¶ 10} “The court shall not modify a prior decree allocating
parental rights and responsibilities for the care of children
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, the child’s residential parent, or either of the parents
subject to a shared parenting decree, and that the modification
is necessary to serve the best interest of the child. In applying
these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting
decree, unless a modification is in the best interest of the child
and one of the following applies:
{¶ 11} “* * *
{¶ 12} “(iii) The harm likely to be caused by a change of
environment is outweighed by the advantages of the change of
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environment to the child.”
{¶ 13} Therefore, in order for the trial court to grant Robyn’s
motion to reallocate parental rights and responsibilities, the
trial court would have to find that (1) there has been a change
in the circumstances of the children or Robert, (2) the
modification is necessary to serve the best interest of the
children, and (3) the harm likely to be caused by a change of
environment is outweighed by the advantages of the change of
environment to the children. R.C. 3109.04(E)(1)(a).
{¶ 14} The magistrate found that Robyn failed to satisfy the
tests that R.C. 3109.4(E)(1)(a) imposes. The magistrate wrote:
{¶ 15} “Since the court last awarded custody in July 2008 [sic],
there have been changes in the children’s circumstances. Some of
the changes have been very positive. They are no longer home
schooled. They are thriving in the Beavercreek school system and
have been intergraded [sic] into that community. Other changes
are not so positive. The respondent’s living arrangements have
fluctuated due to marital discord between respondent and his wife.
The parties themselves have terrible communication and this has
lead to a number of problems. Respondent is reluctant to
communicate with the movant about the children. This leads to a
failure to facilitate contact between the movant and the children.
Respondent appears to believe that since he has custody of the
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children he can make unilateral decisions about them without ever
consulting the movant or the court. These decisions include
changing the drop-off and pick-up of the children and refusal to
keep the movant informed about the children’s school activities
and medical needs. Continued behavior such as this by the
respondent will likely result in future court actions. However,
at the current time the children are doing exceptionally well in
the school district that they are in. They are thriving in the
respondent’s custody. Should custody be changed to the movant,
they would need to change school districts. At this time, the harm
likely to be caused by a change in environment is not outweighed
by the advantages of the change of environment to the child. It
is, therefore recommended that the movant’s motion to reallocate
parental rights and responsibilities be overruled.” (Dkt. 235,
p. 6.)
{¶ 16} Robyn filed objections to the magistrate’s decision,
arguing that the magistrate failed to take into consideration and
give proper weight to the following facts: Robert’s “lack of
stability,” the children witnessing violence in Robert’s home,
Robert’s attempts to alienate the children against Robyn, Robert’s
failure to communicate with Robyn regarding medical appointments
and school activities, and the positive changes Robyn is willing
to make. The trial court overruled these objections and stated:
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{¶ 17} “The testimony reflects that Robert and his current wife,
Carrie Campbell, were having marital difficulties during the
pendency of this action. As a result, they have had verbal
arguments and he has left the marital residence on a number of
occasions. The alleged ‘lack of stability’ was directly
attributable to the marital disputes between Robert and his spouse.
There is no record in this matter that the children witnessed
violence. There is no indication that either Robert or Carrie had
pursued a domestic violence against the other. The Court finds
that Robyn’s objection that the magistrate failed to take proper
consideration for Robert’s lack of stability and that the children
had witnessed violence in the home is without merit and is
overruled.
{¶ 18} “Robyn alleges that Robert had failed to advise her of
medical appointments and school activities. A thorough review of
the evidence reflects that Robert provided ample notices of both
medical appointments and school activities. The Court further
notes that there is no court order that would preclude Robyn from
having direct contact with the medical providers or school
officials regarding the children’s appointments and schedules.
The Court finds no evidence to support a change of custody based
on a failure to communicate the medical and school activities.
{¶ 19} “The Court finds no evidence to support the claim of
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alienation.
{¶ 20} “Robyn argues that the magistrate failed to take into
consideration the positive changes that she was willing to
undertake in order to gain custody of the minor children. The
magistrate acknowledged the changes that Robyn was considering to
improve her parenting skills. Robyn acknowledged a willingness
to enroll the children in a public school system rather than home
school them as she had in the past. The record reflects that the
children are doing very well in the Beavercreek school system.
Robert has taken measures to ensure that Carson receives speech
therapy and that Noah is receiving tutoring in math. Both children
have expressed a desire to remain in the Beavercreek school
district and are thriving in that environment.
{¶ 21} “The Court finds that the magistrate properly considered
all the evidence and properly evaluated the factors contained in
R.C. 3109.04 to determine the change of circumstances to address
the change of custody issue. The Court evaluated the factors to
determine whether such a change would be in the best interest of
the minor children. The Court finds that a change of custody is
not in the best interest of the minor children at this time.” (Dkt.
250, p. 3-4.)
{¶ 22} Robyn argues that “the trial court did not cite to or even
mention” the factors in R.C. 3109.04(F)(1) and therefore erred in
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adopting the magistrate’s decision. R.C. 3109.04(F)(1) concerns
the best interest of a child and provides:
{¶ 23} “In determining the best interest of a child pursuant to
this section, whether on an original decree allocating parental
rights and responsibilities for the care of children or a
modification of a decree allocating those rights and
responsibilities, the court shall consider all relevant factors,
including, but not limited to:
{¶ 24} “(a) The wishes of the child’s parents regarding the
child’s care;
{¶ 25} “(b) If the court has interviewed the child in chambers
pursuant to division (B) of this section regarding the child’s
wishes and concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of
the child, as expressed to the court;
{¶ 26} “(c) The child’s interaction and interrelationship with
the child’s parents, siblings, and any other person who may
significantly affect the child’s best interest;
{¶ 27} “(d) The child’s adjustment to the child’s home, school,
and community;
{¶ 28} “(e) The mental and physical health of all persons
involved in the situation;
{¶ 29} “(f) The parent more likely to honor and facilitate
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court-approved parenting time rights or visitation and
companionship rights;
{¶ 30} “(g) Whether either parent has failed to make all child
support payments, including all arrearages, that are required of
that parent pursuant to a child support order under which that
parent is an obligor;
{¶ 31} “* * *
{¶ 32} “(i) Whether the residential parent or one of the parents
subject to a shared parenting decree has continuously and willfully
denied the other parent’s right to parenting time in accordance
with an order of the court;
{¶ 33} “(j) Whether either parent has established a residence,
or is planning to establish a residence, outside this state.”
{¶ 34} The magistrate considered the relevant factors set forth
in R.C. 3109.04(F)(1) in determining that a change in residential
parent was not necessary to serve the best interest of the children.
Further, the trial court addressed the relevant factors in R.C.
3109.04(F)(1) in reviewing the magistrate’s decision and
overruling Robyn’s objections. The trial court’s decision is
supported by the evidence of record that the children have
flourished in and out of school since Robert became the residential
parent. Further, the guardian ad litem’s report and the interview
of the minor children support the trial court’s decision to
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overrule Robyn’s motion. Although there have been some negatives
in Robert’s household, the magistrate and trial court found that
these negatives did not outweigh the many positives that have
occurred since Robert became the residential parent. Upon this
record, we cannot find that the trial court abused its discretion
in finding that a modification of its prior order was not necessary
to serve the best interest of the children, and the first assignment
of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 35} “THE TRIAL COURT ACTED UNREASONABLY, ARBITRARILY, AND
UNCONSCIONABLY WHEN IT FOUND THAT THE POTENTIAL HARM OUTWEIGHED
THE ADVANTAGES OF A NEW ENVIRONMENT.”
{¶ 36} The findings that R.C. 3109.04(E)(1)(a) requires the
court to make are conjunctive; that is, all three must be found
in order for the court to modify its prior order. Our
determination of the first assignment of error renders moot the
error advanced in this assignment. Therefore, we need not decide
the error. App.R. 12(A)(1)(c).
{¶ 37} The assignments of error are overruled. The judgment of
the trial court will be affirmed.
FAIN, J. and DONOVAN, J. concur.
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Copies mailed to:
Brian A. Sommers, Esq.
Robert M. Musgrove
Hon. Denise L. Cross