[Cite as Scarberry v. Scarberry, 2011-Ohio-2829.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
:
JULIE SCARBERRY
Plaintiff-Appellant : C.A. CASE NO. 10-CA-0091
vs. : T.C. CASE NO. 02-DR-0740
: (Civil Appeal from
KEVIN SCARBERRY Common Pleas Court)
Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of June, 2011.
. . . . . . . . .
Joseph M. Juergens, Atty. Reg. No. 0024912, 39 N. Fountain Avenue,
Springfield, OH 45502
Attorney for Plaintiff-Appellant
Linda Joanne Cushman, Atty. Reg. No. 0043543, 150 N. Limestone
Street, Suite 206, Springfield, OH 45501
Attorney for Defendant-Appellee
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This is an appeal from a final order modifying an order
entered in a divorce action allocating parental rights and
responsibilities.
{¶ 2} The marriage of Julie Scarberry Robinson and Kevin
Scarberry was terminated by a decree of divorce on January 9, 2003.
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Julie1 was designated the residential parent and legal custodian
of the parties’ two minor children. Kevin was awarded rights of
visitation.
{¶ 3} On March 10, 2010, Kevin filed a motion to modify the
prior custody order, asking that he be designated the residential
parent and legal custodian of the two children. After hearings
held over the course of four days, the court granted Kevin’s motion
on August 31, 2010, also awarding Julie rights of visitation.
(Dkt. 81.) Julie filed a timely notice of appeal from that order.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE COURT’S RELIANCE ON THE CHANGE OF CIRCUMSTANCES
SUGGESTED BY DEFENDANT TO MODIFY THE CUSTODIAL RESPONSIBILITIES
IN THIS MOTION WERE INSUFFICIENT, AS THEY DID NOT HAVE A CONTINUING
AND MATERIAL ADVERSE EFFECT ON THE CHILDREN, AND THEREFORE WAS
AN ABUSE OF THE COURT’S DISCRETION.”
{¶ 5} Once parental rights and responsibilities are allocated,
the focus is on stability for the child. Whaley v. Whaley (1978),
61 Ohio App.2d 111. To that end, R.C. 3109.04(E)(1)(a) provides:
{¶ 6} “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
1
For clarity and convenience, the parties are identified
by their first names.
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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:
{¶ 7} “(i) The residential parent agrees to a change in the
residential parent or both parents under a shared parenting decree
agree to a change in the designation of residential parent.
{¶ 8} “(ii) The child, with the consent of the residential
parent or of both parents under a shared parenting decree, has
been integrated into the family of the person seeking to become
the residential parent.
{¶ 9} “(iii) The harm likely to be caused by a change of
environment is outweighed by the advantages of the change of
environment to the child.”
{¶ 10} The prior decree to which R.C. 3109.04(E)(1)(a) refers
is the decree which last designated one of the parents the
residential parent and legal custodian of the parties’ minor child
or children. Bell v. Bell, Clark App. No. 94DR0986,
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2007-Ohio-6347, ¶33. The prior decree in the present case is the
January 9, 2003 decree of divorce.
{¶ 11} Any change of circumstances must be based on facts that
have arisen since the prior decree or that were unknown to the
court at the time of the prior decree. Bragg v. Hatfield, 152
Ohio App.3d 174, 2003-Ohio-1441. R.C. 3109.04(E)(1)(a) only
requires a finding of a change of circumstances, not a “substantial”
change. Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260.
Nevertheless, “to warrant a change of custody, . . . The change
must be a change of substance, not a slight or inconsequential
change.” Id., at 418.
{¶ 12} The domestic relations court found that since Julie was
designated the residential parent and legal custodian of the two
children in the decree of divorce, the children have experienced
educational difficulties and suffered from neglect of their health
and dental care needs. The court attributed these problems to
Julie’s inattention arising from her lack of concern and/or her
own health problems and the medications she is prescribed for those
problems. The court further found that the two children had faired
better in those respects when they were in Kevin’s care, pursuant
to temporary orders of the court entered since the decree of
divorce.
{¶ 13} A mere passage of time does not constitute a change of
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circumstances for purposes of R.C. 3109.04(E)(1)(a). However,
circumstances of the child or the child’s residential parent are
not excluded from consideration merely because they were manifested
over the period of time since the prior decree allocating parental
rights and responsibilities.
{¶ 14} The changes in circumstances which the domestic
relations court found are supported by the record, and their
existence is not disputed by Julie. Rather, she disputes their
significance or materiality in relation to the best interest of
the two children. We do not agree.
{¶ 15} The educational and health difficulties the children
have experienced since the prior decree detract from their positive
growth and development, and constitute a change of substance.
Davis. The domestic relations court did not abuse its discretion
when it found a change in the circumstances of the two children
sufficient to satisfy R.C. 3109.04(E)(1)(a).
{¶ 16} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 17} “THE COURT’S DECISION AND ORDER WAS AN ABUSE OF
DISCRETION AS THE EVIDENCE DID NOT SUBSTANTIATE THE FINAL ORDER
OF THE COURT TO MODIFY THE RESIDENTIAL PARENT, AND WAS NOT IN THE
BEST INTEREST OF THE CHILDREN.”
{¶ 18} In order to rebut the presumption in favor of retaining
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the prior custodial and residential parent, and in addition to
the required finding of a change of circumstances, R.C.
3109.04(E)(1)(a) requires a finding by the court that modification
is necessary to serve the best interest of the child or children.
In making that determination, the court must consider all of the
relevant factors in R.C. 3109.04(F)(1) governing an original
allocation of parental rights and responsibilities.
{¶ 19} R.C. 3109.04(F)(1)(h) requires consideration of whether
either parent has been convicted of or pleaded guilty to domestic
violence or another criminal offense involving any act that
resulted in the child being an abused or neglected child, “and
whether there is reason to believe that either parent has acted
in a manner resulting in a child being an abused child or neglected
child.”
{¶ 20} Julie complains that the court ignored the testimony
of two of her witnesses, who implicated Kevin and his current wife
in the sale of illegal drugs, and in the use of illegal drugs and
alcohol in ways that impaired their ability to care for the two
children. If believed, that evidence could support a finding that,
when they are in Kevin’s care, the children have been “neglected,”
in that they lack adequate parental care because of the faults
or habits of Kevin and his wife. R.C. 2151.03(A)(2).
{¶ 21} Julie also complains that the guardian ad litem the court
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appointed ignored that same information in making his report,
though he was made aware of it.
{¶ 22} Julie further complains that Kevin’s older step-son had
attacked or attempted to attack one of her two children, and that
the court failed to consider that evidence. Such a matter would
relate to the child’s interaction with a sibling, which the court
must also consider. R.C. 3109.04(F)(1)(c).
{¶ 23} Julie is correct that the domestic relations court did
not speak directly to these matters. However, the court did make
the following finding:
{¶ 24} “The Court has not been provided with sufficient evidence
to suggest that either of the parties have been convicted of an
act of domestic violence or abuse or neglect of a child or nor
have either of the children been adjudicated to be an abused or
neglected child; nor have either of the parties been convicted
of an act involving a sexually oriented offense, nor has the Court
had reason to believe that either of the parties have acted in
a manner resulting in a child being an abused or neglected child,
except as otherwise set forth herein.” (Dkt. 81, unnumbered page.)
{¶ 25} The court further found that, “from the totality of the
credible evidence, that both of the children have a far greater
opportunity to develop healthy relationships with friends,
relatives and others while residing with their father, all of which
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will assist them in their future development.” (Id. at unnumbered
page.)
{¶ 26} The court’s findings demonstrate that the court rejected
the evidence of Julie’s several witnesses alleging bad conduct
on the part of Kevin, his wife, and his step-son, for lack of
credibility. The credibility of witnesses is primarily a matter
for the trial court to decide. State v. DeHass (1967), 10 Ohio
St.2d 230. We see no basis to find an abuse of discretion.
{¶ 27} Finally, the court credited and adopted the
recommendation of the guardian ad litem that Kevin be designated
the residential and custodial parent of the two children. Whether
the guardian ad litem’s recommendation and report was flawed or
incomplete is a matter to be resolved by the trial court. The
court apparently resolved that question against the claims of
Julie’s witnesses.
{¶ 28} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 29} “THE DECISION OF THE COURT IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, AND DOES NOT SUPPORT THE COURT’S DECISION TO MODIFY
THE RESIDENTIAL PARENT OF THE PARTIES’ MINOR CHILDREN.”
{¶ 30} Having made the change of circumstances and best interest
findings that R.C. 3109.04(E)(1)(a) requires, the court further
found, pursuant to paragraph (iii) of that section, that “the harm
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likely to be caused by a change of environment is outweighed by
the advantages of the change of the environment to the child.”
{¶ 31} Julie argues that the trial court’s decision is against
the manifest weight of the evidence because the testimony of her
witnesses that Kevin and his wife were involved in the sale of
illegal drugs and the abuse of drugs and alcohol was credible
evidence. That evidence, if believed, would weigh against the
finding the court made.
{¶ 32} A judgment is not subject to reversal on the manifest
weight of the evidence standard because there is some evidence
that weighs against it. Reversal is mandated when there is no
competent, credible evidence that supports the court’s judgment.
C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d
279.
{¶ 33} The domestic relations court rejected the testimony of
Julie’s witnesses for lack of credibility, which the court was
entitled to do. We have declined to disturb that finding.
Therefore, we cannot find that the court abused its discretion
in finding that, on the weight of the evidence credited by the
court, the harm likely to be caused by a change in the child’s
environment resulting from a modification of the prior decree is
outweighed by the advantages of the change in environment to the
child. R.C. 3109.04(E)(1)(a)(iii).
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{¶ 34} The third assignment of error is overruled. The
judgment of the domestic relations court will be affirmed.
FAIN, J. and FROELICH, J. concur.
Copies mailed to:
Joseph M. Juergens, Esq.
Linda Joanne Cushman, Esq.
Hon. Thomas J. Capper
Scarberry v. Scarberry
Combined Opinion