[Cite as Grimes v. Vaske, 2013-Ohio-4320.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
HAYLEIGH LYNN GRIMES,
PLAINTIFF-APPELLEE, CASE NO. 1-13-07
v.
JAMES RICHARD VASKE, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2006 JP 08620
Judgment Reversed and Cause Remanded
Date of Decision: September 30, 2013
APPEARANCES:
Aaron L. Bensinger for Appellant
Case No. 1-13-07
WILLAMOWSKI, J.
{¶1} Defendant-appellant James Vaske (“Vaske”) brings this appeal from
the judgment of the Court of Common Pleas of Allen County, Juvenile Division,
denying his Motion for Reallocation of Parental Rights and Responsibilities,
Shared Parenting Plan, and Modification of Support. For the reasons discussed
below, the judgment is reversed.
{¶2} This appeal concerns custody of Keira Joy Grimes (“Keira”), a minor
daughter of Vaske and Plaintiff-appellee Haleigh Lynn Grimes (“Grimes”), born
in March of 2006. The parties were not married. On August 2, 2006, the Juvenile
Division of the Court of Common Pleas of Allen County, Ohio, entered an Agreed
Judgment Establishing Paternity, Child Support and Healthcare Insurance, in
which Grimes was designated as the residential parent and legal custodian of
Keira. (Agreed J. Entry at 2, Grimes v. Vaske, Allen C.P. No. 2006 JP 08620,
Aug. 2, 2006.) The Judgment required Vaske to pay child support and entitled
him to visitation rights pursuant to Rule 6 of the Local Rules of Court, which
prescribes minimum parenting time and sets the parenting time schedule for the
non-residential parent. (Id.)
{¶3} On February 15, 2012, Vaske filed his Motion for Reallocation of
Parental Rights and Responsibilities, Shared Parenting Plan, and Modification of
Support, stating that there had been a significant change in circumstances in that
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Keira was spending approximately 50% of the time with her father and she was no
longer attending daycare. The magistrate of the trial court conducted a hearing on
June 5, 2012, and based on the submitted evidence determined that there had been
a change of circumstances warranting modification, a shared parenting plan was in
the best interest of the minor child, and the benefits resulting from the shared
parenting plan outweighed any harm associated with it.
{¶4} On July 24, 2012, Grimes objected to the magistrate’s determination,
arguing only that the shared parenting plan was not in Keira’s best interest, but not
challenging the magistrate’s remaining findings. Then, on January 2, 2013,
Grimes submitted her Motion to File Supplemental Objections Instanter,
accompanied by the supplemental objections in which she argued, for the first
time, that the magistrate’s finding of a change in circumstances was improper.
The trial court denied the motion to supplement, stating that it would “consider
only the initial objection filed by the Plaintiff on July 24, 2012, and not the
Supplement filed on January 2, 2013,” because the Supplement was untimely and
there was no excusable neglect for the untimely filing. (J. Entry, Grimes v. Vaske,
Allen C.P. No. 2006 JP 08620, at 1-2, Jan. 17, 2013.) Nevertheless, the trial court
rejected the magistrate’s finding that a change of circumstances had occurred,
although this finding had not been timely challenged by the initial objections.
While not addressing Grimes’s actual objection regarding the shared parenting
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plan being in Keira’s best interest, the trial court stated that “[Grimes’s] objections
to the decision of the magistrate are well taken, and [Vaske’s motion] is found not
to be well taken and the same is “DENIED.” (Id.) Vaske appeals from this
judgment raising the following assignment of error.
The Trial Court erred in determining there was not a change in
circumstances to warrant a redetermination of parental rights
and responsibilities pursuant to R.C. 3109.04(E)(1)(a), adoption
of a shared parenting plan and modification of support.
{¶5} Grimes has not filed a brief in the instant appeal and she has not
participated in the oral argument. Accordingly, pursuant to The Rules of
Appellate Procedure, in determining this appeal, “the court may accept the
appellant’s statement of the facts and issues as correct and reverse the judgment if
appellant’s brief reasonably appears to sustain such action.” App.R. 18.
{¶6} The determination of whether a prior court order allocating parental
rights and responsibilities should be modified is controlled by R.C.
3109.04(E)(1)(a), which provides:
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:
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(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.
(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.
(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.
{¶7} The finding of a change of circumstances is a necessary prerequisite to
the further inquiry of whether the modification would be in the best interest of the
child. Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344, ¶ 38.
Therefore, to modify the 2006 parenting decree, the trial court was required to first
find that a change of circumstances occurred and then determine that the shared
parenting plan, as proposed by Vaske, was in the best interest of the child. After
satisfying these two steps, the court would then proceed to decide whether one of
the elements (i)-(iii) enumerated above was present. The magistrate determined
that all of the above statutory requirements for a modification were satisfied, but
the trial court disagreed with the magistrate’s conclusion regarding the changed
circumstances. The trial court did not reject the magistrate’s findings as to the
facts underlying the claim. Rather, it disagreed with the conclusion that the
“change in circumstances” occurred, holding that the increased parenting time,
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maturing of the child, and the changes in the mother’s work schedule were
insufficient to satisfy the standard required by R.C. 3109.04.
{¶8} Accordingly, at issue in this appeal is the trial court’s application of
the standard for a “change in circumstances” rather than the findings of fact.
Indeed, the facts of this case are undisputed as Grimes did not file a brief and
Vaske’s brief reiterates the factual findings made by the magistrate and also
restated by the trial court. Consequently, the review of the trial court’s decision
must focus on whether the trial court committed an error of law because “[a]
finding of an error in law is a legitimate ground for reversal, [although] a
difference of opinion on credibility of witnesses and evidence is not.” Davis v.
Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997).
{¶9} The trial court found that Vaske has had “expansive parenting time
with the child, well beyond that which is called for in the court’s original Order”;
the parties have not strictly complied with the prior decree; “Father enjoys time
with the child essentially on any day that he is not working and every other
weekend,” which, due to the father’s alternating work schedule amounts to an
average of 50% of the time; “the child has aged from age 4 ½ months to age 6
since the prior decree”; and the mother was no longer in school and maintained a
different work schedule.” (J. Entry at 2.) These changes were insufficient
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according to the trial court because they did not have a “materially adverse effect”
upon Keira. (Id. at 4.) This reasoning by the trial court was an error in law.
{¶10} We have previously held that R.C. 3109.04(E) “does not require that
the child suffer adverse consequences,” and we continue to adhere to that holding
today.1 LaBute v. LaBute, 179 Ohio App.3d 696, 2008-Ohio-6190, 903 N.E.2d
652, ¶ 8 (3d Dist.). “R.C. 3109.04 requires only a finding of a ‘change in
circumstances’ before a trial court can determine the best interest of the child in
considering a change of custody.” Davis at 417. There is no requirement that a
1
We recognize that a former version of the statute did include an adverse effect analysis and many cases
have in the past turned upon that element. See Castle v. Castle, 3d Dist. Hardin No. 6-86-15, 1989 WL
10750, *5 (Feb. 9, 1989) (noting that many cases decided under the prior version of R.C. 3109.04 turned
upon failure to establish “an adverse impact upon the child” or “a present danger to the mental, moral or
emotional development of the child in his existing environment”). The legislature has since changed the
statutory language and the finding of the present environment endangering the child is no longer a part of
the prescribed analysis. Even under the former statutory provision, however, the finding of harm was
relevant to whether a modification should be granted but not to the threshold inquiry of whether a change
has occurred. See Wyss v. Wyss, 3 Ohio App.3d 412, 414, 445 N.E.2d 1153 (10th Dist.1982). See also In
re Rex, 3 Ohio App. 3d 198, 199, 444 N.E.2d 482 (3d Dist.1981):
R.C. 3109.04(B) reads as follows:
The court shall not modify a prior custody decree unless it finds, based on facts which
have arisen since the prior decree or which were unknown to the court at the time of the
prior decree, that a change has occurred in the circumstances of the child or his custodian,
and that the modification is necessary to serve the best interests of the child. In applying
these standards, the court shall retain the custodian designated by the prior decree, unless
one of the following applies:
(1) The custodian agrees to a change in custody.
(2) The child, with the consent of the custodian, has been integrated into the family of the
person seeking custody.
(3) The child’s present environment endangers significantly his physical health or his
mental, moral, or emotional development and the harm likely to be caused by a change of
environment is outweighed by the advantages of such change to the child.
We follow the current statute and the Ohio Supreme Court’s definition of “change in circumstances” and
those do not require that the “change” be adverse or harmful to the child.
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change must be adverse—neither the Supreme Court of Ohio nor the Revised
Code place such limitation on the finding of the “change.” While the Ohio
Supreme Court in Davis recognized that “[l]ower courts have varied widely in
their interpretation of the meaning of ‘change in circumstances,’” and quoted the
language of an unreported case requiring that the change must have an “adverse
effect upon the child,” the Supreme Court did not adopt this language. Davis at
417, quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th
Dist.1982)2, quoting Wedren v. Wedren, Franklin App. No. 74AP–103 (Aug. 27,
1974), unreported. Rather, the Supreme Court set up the standard as follows,
“Clearly, there must be a change of circumstances to warrant a change of custody,
and the change must be a change of substance, not a slight or inconsequential
change.” (Emphasis sic.) Id. at 418. The Supreme Court further warned, “we
must not make the threshold for change so high as to prevent a trial judge from
modifying custody if the court finds it is necessary for the best interest of the
child.” Id. at 420-421.
{¶11} While the trial court recognized that the passage of time and
maturing of the child may be sufficient to satisfy the finding of a change in
circumstances, it held that these changes, even “in conjunction with the other
2
Notably, Wyss was decided and turned upon one of the prior versions of the statute that included a
provision expressly authorizing the court to determine whether “[t]he child's present environment
endangers significantly his physical health or his mental, moral, or emotional development and the harm
likely to be caused by a change of environment is outweighed by the advantages of such change to the
child.” Wyss, 3 Ohio App.3d at 414, quoting R.C. 3109.04.
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factors identified by the Magistrate,” were insufficient to satisfy the “threshold
burden of establishing that there has been sufficient change in the circumstances of
either the child or the residential parent which has had a materially adverse effect
upon the child such as to justify a modification of the existing decree.” (Emphasis
added.) (J. Entry at 4.) Because we reject the requirement that the change must be
adverse, the remainder of the trial court’s analysis results in a conclusion that
Vaske has met his burden of establishing a change in the circumstances. This
conclusion was also reached by the magistrate, who viewed the witnesses and was
thus in the best position to judge credibility, and who determined that Vaske
proved a change in circumstances. This court agrees with the magistrate.
{¶12} We also note that a denial of a modification and allowing the parties
to now start following the minimum parenting schedule as provided for in the
2006 Order would constitute a change that would have a materially adverse effect
upon the child, thus satisfying the trial court’s requirement of adverse effect. In
fact, the trial court held that “the expansive parenting time permitted by the
residential parent is not itself a sufficient change of circumstances to meet the
threshold, but the interruption of the expansive pattern of parenting time beyond
that called for in the existing order could be sufficient”; “The Court would have no
difficulty in finding that any significant disruption to the current schedule would
constitute a substantive change in her circumstances under R.C.
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3109.04(E)(1)(a).” (Emphasis sic.) (J. Entry at 5.) Because a change forming a
basis for the statutory modification need not be adverse, the court does not need to
await an interruption of the current de facto parenting schedule in order to find a
change in circumstances and grant a modification of the prior decree.
{¶13} In denying Vaske’s motion, the trial court pointed out that it was
troubled by the possible implications of granting a modification when the
custodial parent “permit[s] generous and expansive parenting time beyond that
required under an existing order.” (J. Entry at 4.) Specifically, the trial court
expressed concern over custodial parents being discouraged from offering the
noncustodial parents any time beyond what is a minimum required of them under
an existing decree. While we hold that the circumstances of this case, when taken
as a whole, amounted to a sufficient change of circumstances, our ruling should
not be read as creating a precedent whereby expansion of a parenting time beyond
what is required under an existing order would always satisfy the statutory
requirement of “change.”
{¶14} Our holding here is limited to the unique facts of this case and is
additionally prompted by the fact that no proper objections were filed to the
magistrate’s determination that the change in circumstances was sufficient to
satisfy the first element of the statutory inquiry. In particular, in the only
objections to the magistrate’s decision timely filed and considered by the court,
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Grimes argued solely that the shared parenting plan is not in the best interest of the
child. Nevertheless, the trial court did not address this argument. Instead, the trial
court upheld the objection that was not properly raised and was not to be
considered, concerning the magistrate’s finding of the change in circumstances.
{¶15} Rejecting the magistrate’s finding of change in circumstances, the
trial court did not proceed to the second inquiry under R.C. 3109.04(E)(1)(a),
regarding the child’s best interests. The magistrate determined that the
modification of the prior order in favor of a shared parenting plan was appropriate
and in the best interest of Keira. (Magistrate’s decision at 23.) The magistrate
then examined the remaining requirements of the statute, finding that “the risk of
any harm to the minor child as a result of the ‘change of environment’ or
establishment of a shared parenting plan is extremely low or non-existent,”
because the parties have essentially followed a shared parenting plan for the
previous three years. (Id.) There is support in the record for these findings and it
appears that the trial court agreed when it recognized that the current “pattern of
contact between the child and her father * * * appears to be most beneficial to the
child” and that the current “pattern of involvement and those beneficial
relationships should not be disrupted or endangered.” (J. Entry at 4-5.)
Nevertheless, the trial court left the second element of the statutory inquiry
unanswered. We therefore remand the case for the trial court’s determination of
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whether “the modification is necessary to serve the best interest of the child” as
required by R.C. 3109.04(E)(1)(a).
{¶16} Appellant’s assignment of error is well-taken. Therefore, we reverse
the trial court’s judgment and remand this matter for further proceedings
consistent with this decision.
Judgment Reversed and
Cause Remanded
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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Grimes v. Vaske
Combined Opinion