Long v. Long

[Cite as Long v. Long, 2010-Ohio-4817.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY

SARA LONG,
NKA SARA SCHOONOVER,

PLAINTIFF-APPELLANT, CASE NO. 14-10-01

v.

BENJAMIN LONG, OPINION

DEFENDANT-APPELLEE.

Appeal from Union County Common Pleas Court
Domestic Relations Division
Trial Court No. 06-DR-0198

Judgment Affirmed

Date of Decision: October 4, 2010

APPEARANCES:

Mark M. Feinstein for Appellant

Dorothy Liggett-Pelanda for Appellee
Case No. 14-10-01

SHAW, J.

{¶1} Plaintiff-Appellant Sara Long nka Schoonover (“Sara”) appeals the

November 5, 2009 judgment of the Union County Court of Common Pleas

designating Defendant-Appellee Benjamin Long (“Ben”) the residential parent and

legal guardian of their child and modifying the parties’ parental rights and

responsibilities as originally stated in their divorce decree.

{¶2} The parties divorce was finalized on March 7, 2007 in Union

County, Ohio. The marriage produced one child, Jacob, born in 2002. As part of

the divorce decree, the court issued an order allocating the parties’ parental rights

and responsibilities of Jacob. Sara was designated Jacob’s legal guardian and

residential parent. Ben was granted parenting time with Jacob which comprised of

overnight-stays every Wednesday and every weekend from Friday evenings to

Sunday mornings. The parties’ divorce decree also granted Ben, as the non-

residential parent, six consecutive weeks of parenting time each year during the

summer vacation allotted by Jacob’s school district.

{¶3} After the divorce, the parties continued to live within the same local

vicinity which facilitated Ben’s exercise of his parenting time according to the

order in the divorce decree. Ben testified that he diligently exercised his parenting

time with Jacob until June 2, 2009. Ben testified that on that date Sara refused to

allow Ben to exercise his parenting time. Sara subsequently severed all contact

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between Ben and Jacob and did not disclose Jacob’s whereabouts to Ben and his

family.

{¶4} On June 15, 2009, Sara filed a notice of relocation informing the

court that she planned to move Jacob to East Lansing, Michigan—where Sara’s

new husband was working on his Ph.D. in Philosophy. On June 23, 2009, Ben

filed a “Motion to Modify Parenting Time” asserting that a substantial change in

circumstances had occurred and that it would be in Jacob’s best interest to modify

the parenting time of each party.

{¶5} On July 31, 2009, a hearing was held before a magistrate on Ben’s

motion to modify parenting time. Sara appeared pro se. On the stand, Sara

admitted to preventing Ben from exercising his parenting time with Jacob since

June 2, 2009. She justified her actions by stating that Ben had become

increasingly argumentative with her in front of Jacob by making disparaging

remarks about Sara and her new husband. However, during this time Sara had

also informed Ben that she intended to move out of state and it would be necessary

to reduce Ben’s parenting time with Jacob to every weekend.

{¶6} Ben testified that when he did not agree to Sara’s new arrangement,

Sara refused to allow him to exercise his parenting time with Jacob. Sara also

admitted that she never filed any documents with the court to effectuate the

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proposed change in Ben’s parenting time—she simply made the unilateral decision

to suspend Ben’s parenting time when he refused to “cooperate” with her plans.

{¶7} At the close of the hearing, the magistrate admonished both parties

for arguing their differences in front of their child. However, the magistrate

specifically scolded Sara for electing to use self-help rather than using the

appropriate mechanisms in place within the court system to modify the existing

order allocating parenting time. The magistrate then issued a temporary order

permitting Ben to exercise his six-week summer visitation with Jacob because

Sara’s actions had prevented Ben from previously spending this time with his son.

The magistrate suggested Sara retain an attorney and ordered a final hearing to be

held on the motion. The magistrate’s order was subsequently journalized in its

August 4, 2009 Entry.

{¶8} On August 10, 2009, Ben filed a “Motion for Custody” requesting

the court to grant him custody of Jacob. On September 10, 2009, Sara filed a

“Motion for Shared Parenting” which requested the court to maintain the order

allocating the parties’ parental rights and responsibilities as stated in the divorce

decree.

{¶9} On September 10, 2009, the final hearing was conducted by the

magistrate. On the record, Ben’s counsel orally withdrew his prior motion for

modification of parenting time and affirmed that Ben wished to proceed on his

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motion for custody pending before the court. Several witnesses testified including

both Sara and Ben and members of their respective families.

{¶10} Based on the testimony elicited at the hearing, the magistrate

rendered his decision. On September 14, 2009, the magistrate found that there had

been a change of circumstances within the meaning of R.C. 3109.04(E)(1)(a) and

that it was in Jacob’s best interest to reallocate the parental rights of the parties.

The court designated Ben as Jacob’s residential parent and legal guardian. Sara

was granted parenting time pursuant to the standard order of visitation and upon

any agreement of the parties. Sara filed objections to the magistrate’s order with

the Court of Common Pleas which subsequently overruled Sara’s objections by

approving and adopting the magistrate’s decision via its November 5, 2009

Judgment Entry.

{¶11} Sara now appeals, asserting two assignments of error.

ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED ON AUGUST 4, 2009, BY
ESSENTIALLY AWARDING TEMPORARY CUSTODY OF
THE MINOR CHILD TO THE DEFENDANT-APPELLEE
WHEN NO MOTION FOR SUCH REMEDY WAS PENDING.

ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION ON
SEPTEMBER 14, 2009 BY FINDING THAT
REALLOCATION OF THE PARENTAL RIGHTS AND
RESPONSIBILITIES WAS APPROPRIATE UNDER [R.C.] §
3109.04(E).

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The First Assignment of Error

{¶12} In her first assignment of error, Sara argues that the magistrate erred

when he permitted Ben to exercise his six-week summer visitation with Jacob at

the July 31, 2009 pre-trial hearing. As basis for the assignment of error, Sara

argues that magistrate erroneously granted Ben temporary custody of Jacob when

no motion for temporary custody was pending before the court.

{¶13} As an initial matter, we observe that although Sara challenges the

temporary orders issued by the magistrate on August 4, 2009, she did not raise this

issue with the trial court in the context of her objections. Civil Rule

53(D)(3)(b)(ii) governs the filing of objections to a magistrate’s decision and

provides that “[a]n objection to a magistrate’s decision shall be specific and state

with particularity all grounds for objection.” Except for a claim of plain error, a

party is prohibited from assigning as error on appeal the trial court’s adoption of

any finding of fact or legal conclusion, unless that party has objected to that

finding or conclusion to the trial court. Civ.R. 53(D)(3)(b)(iv).

{¶14} We further note that the plain error doctrine is not favored in civil

appeals, and “may be applied only in the extremely rare case involving

exceptional circumstances where error, to which no objection was made at the trial

court, seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial

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process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1997-

Ohio-401, syllabus. After reviewing the record before us we do not find such

exceptional circumstances in this instance affecting the fairness or integrity of the

judicial process.

{¶15} Moreover, even assuming arguendo that Sara properly raised this

issue in her objections to the trial court, the magistrate’s temporary order does not

constitute a final appealable order. Section 3(B)(2), Article IV of the Ohio

Constitution limits this Court’s appellate jurisdiction to reviewing a lower court’s

final judgment.

{¶16} A temporary order allocating custody between parents is not a final

judgment, but rather is an interlocutory order. See, e.g., State ex rel. Thompson v.

Spon (1998), 83 Ohio St.3d 551, 554, 700 N.E.2d 1281; State ex rel. Wallacy v.

Smith (1997), 78 Ohio St.3d 47, 50-51, 676 N.E.2d 109; In re Devlin (1992), 78

Ohio App.3d 543, 605 N.E.2d 467. “In a domestic relations action, interlocutory

orders are merged within the final decree, and the right to enforce such

interlocutory orders does not extend beyond the decree, unless they have been

reduced to a separate judgment or they have been considered by the trial court and

specifically referred to within the decree.” Colom v. Colom (1979), 58 Ohio St.2d

245, 389 N.E.2d 856. Thus, the court’s final order supercedes the temporary

orders and corrects any error. Wyss v. Wyss (1982), 3 Ohio App.3d 412, 413, 445

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N.E.2d 1153. Therefore, the magistrate’s temporary orders permitting Ben to

exercise the parenting time entitled to him by the parties’ divorce decree was

merely interlocutory and merged with the court’s final order reallocating the

parties’ parental rights and responsibilities.

{¶17} Based on the foregoing reasons, Sara’s first assignment of error is

overruled.

The Second Assignment of Error

{¶18} In her second assignment of error, Sara contends that the trial court

abused its discretion when it determined that a reallocation of the parties’ parental

rights and responsibilities to designate Ben as Jacob’s residential parent was

appropriate in this case.

{¶19} In rendering a decision on whether to modify an existing decree

allocating parental rights, a trial judge must have wide latitude in considering all

the evidence before the court and such a decision must not be reversed absent an

abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846.

The Supreme Court of Ohio further elaborated on our standard of review in

custody cases in Davis v. Flickinger, 1997-Ohio-260, 77 Ohio St.3d 415, 418, 674

N.E.2d 1159:

The standard for abuse of discretion was laid out in the leading
case of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio
St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, but applied to custody

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cases in Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d
178, syllabus:

‘Where an award of custody is supported by a substantial
amount of credible and competent evidence, such an award will
not be reversed as being against the weight of the evidence by a
reviewing court. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47
O.O. 481, 106 N.E.2d 772, approved and followed.)’

The reason for this standard of review is that the trial judge has
the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well
on the written page.

{¶20} The trial court’s discretion in determining parental rights must

remain within the confines of the relevant statutory provisions. Miller, 37 Ohio

St.3d at 74, 523 N.E.2d 846. Section 3109.04(E)(1) of the Revised Code governs

a court’s authority to modify a prior decree allocating parental rights. This section

sets out in great detail the court’s duties and responsibilities in dealing with these

issues. Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450, 698 N.E.2d 84.

{¶21} Specifically, R.C. 3109.04(E)(1)(a) expressly authorizes a court to

modify an existing decree allocating parental right and responsibilities. See Fisher

v. Hasenjager, 116 Ohio St.3d 53, 57, 2007-Ohio-5589, ¶ 21, 876 N.E.2d 546

(interpreting the statute). The relevant statutory provision states, in part:

(a) 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

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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:

***

(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.

R.C. 3109.04(E)(1)(a). (Emphasis added).

{¶22} In the instant case, the testimony before the magistrate revealed

several issues pertinent to the inquiries of whether a “change in circumstance” had

occurred since the trial court issued the decree allocating parental rights and

whether a modification of the prior decree was necessary to serve Jacob’s best

interest.

{¶23} As previously mentioned, Sara testified, admitting that she willfully

interfered with Ben’s parenting time entitled to him by the divorce decree. Sara

contended that Ben had become more argumentative with her in front of Jacob and

had refused to reduce his parenting time with Jacob to accommodate Sara’s plans

to move to Michigan.

{¶24} However, she also testified that she never filed the appropriate

documents with the court to modify Ben’s parenting time. Instead, Sara remarried

and moved out of state with Jacob without notifying Ben of his son’s location.

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Almost two months passed before Ben again had contact with Jacob. This

occurred when the court intervened by issuing temporary orders permitting Ben to

exercise his summer visitation with Jacob.

{¶25} Further testimony demonstrated that Jacob had forged strong bonds

with his family in Ohio and that a move to Michigan—which required a round trip

car ride of eight hours—would disrupt those relationships. Ben testified that Jacob

had considerable ties with numerous family members who reside in the Marysville

area—many of whom had been an integral part of Jacob’s life since his birth.

{¶26} At the time of the hearing, seven-year-old Jacob had finished his

third week into the new academic year at the school he also attended the previous

year. By all accounts Jacob appeared to excel in school. Ben testified that Jacob

attended school with two of his cousins who were in the same grade as Jacob and

who saw Jacob everyday because they reside three miles from Ben’s residence.

Ben also testified that his home—where Jacob had been living—was on the same

parcel of land as his parents, Jacob’s paternal grandparents, and that Sara’s mother

and grandmother, Jacob’s maternal grandmother and great-grandmother, as well as

several aunts, uncles and cousins lived in very close proximity to Ben’s home.

Overall, the testimony elicited from various family members at the hearing

revealed that Jacob had an intricate network of family members located in the

Marysville, Ohio area.

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{¶27} On the other hand, the testimony about regarding Jacob’s

relationships in Michigan was limited. Sara confirmed that she and her new

husband had relocated to East Lansing, Michigan. Sara moved Jacob to Michigan

a few months prior the hearing around the time she remarried. Sara testified that,

in addition to herself, Jacob’s new step-father and new step-brother were the only

other members of Jacob’s family who resided in Michigan. Sara further testified

that Jacob had only known his step-father and step-brother for a couple months

before she moved him to Michigan. Sara acknowledged that most of Jacob’s

relatives from both his maternal and paternal family lived in the Marysville area.

{¶28} Sara further testified that she only intended to stay in Michigan for

two years while her husband finished his degree. They then planned to return to

Ohio to search for employment. However, neither Sara nor her husband could

state with any certainty where they would reside in two years and thus could only

speculate about their Ohio employment prospects. Sara also stated that she

intended to make the eight-hour drive from Michigan to Marysville and back each

weekend so that Jacob could visit with Ben.

{¶29} In reviewing whether the evidence presented in this case

demonstrated that a change in circumstance had occurred, we are reminded that

the change must be of substance, not slight or inconsequential. Davis v. Flickinger

(1997), 77 Ohio St.3d 415, 1997-Ohio-260, 674 N.E.2d 1159. Furthermore, the

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mere possibility of a change in circumstances in the future will not ordinarily

suffice to support modification of a child custody decree. Waggoner v. Waggoner

(1996), 111 Ohio App.3d 1, 675 N.E.2d 541, dismissed, appeal not allowed, 77

Ohio St.3d 1445, 671 N.E.2d 1284.

{¶30} In rendering his decision, the magistrate acknowledged the line of

cases decided by this Court which hold that the relocation of the residential parent

alone is not sufficient to constitute a change in circumstances. Eaches v. Eaches,

3rd Dist No. 8-97-05; Thatcher v. Thatcher, 3rd Dist. No. 10-97-08; Heitkamp v.

Heitkamp, 3rd Dist. No. 10-01-03. However, the magistrate also highlighted that

“[i]t is well settled that a custodial parent’s interference with visitation by a

noncustodial parent may be considered a ‘change of circumstances’ which would

allow for a modification of custody.” Wilburn v. Wilburn (2001), 144 Ohio

App.3d 279, 760 N.E.2d 7, quoting Mitchell v. Mitchell (1998), 126 Ohio App.3d

500, 710 N.E.2d 793.

{¶31} In the present case, Sara admitted to denying Ben access to Jacob for

a period of two months, clearly interfering with Ben’s visitation with Jacob.

Moreover, Ben expressed serious concern that Sara would again deny him access

to Jacob in the future.

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{¶32} In addition, the magistrate also noted that Sara’s relocation would

disrupt the familial relationships that seven-year-old Jacob had cultivated since his

birth in the following excerpt from the decision:

In the present case the child has had on-going and close
relationship with his father, grandparents and extended family
that cannot be maintained without extraordinary effort while
living in Michigan. It requires 8 hours of traveling by car each
weekend which certainly would interfere with the ordinary
activities of a boy at this stage in his life.
Mother has married Mr. Schoonover who, although he may be
an outstanding individual, is substantially unknown to the child
until May of this year. As noted, Mr. Schoonover has custody of
a son who resides with him and Mother. These facts certainly
constitute a change in circumstance of the residential parent and
the child.

(J.E. Sept. 14, 2009 at 4-5).

{¶33} After reviewing the record before us, we find that there is a

substantial amount of credible, competent evidence to support the magistrate’s

finding that there had been a change of circumstance. Therefore, we cannot find

that the magistrate abused its discretion in determining that a change in

circumstances had occurred since the prior decree and consequently we cannot

find that the trial court abused its discretion in adopting the magistrates order to

that extent.

{¶34} Once the trial court has made the threshold finding that there has

been a change in circumstances, the court must then make a finding as to the best

interest of the child. In making this determination, R.C. 3109.04(F)(1) directs the

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court to consider all relevant factors, including those factors set forth in R.C.

3109.04(F)(1)(a)-(j) listed below.

(F)(1) 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:

(a) The wishes of the child's parents regarding the child's care;

(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;

(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;

(d) The child's adjustment to the child's home, school, and
community;

(e) The mental and physical health of all persons involved in
the situation;

(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;

(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;

(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty

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to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child * * *

(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;

(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.

R.C. 3109.04(F).

{¶35} In conducting the best interest analysis, the magistrate specifically

addressed each of these factors to determine whether a modification of the prior

order allocating parental rights and responsibilities served Jacob’s best interest.

The magistrate adduced the following findings as they corresponded to relevant

the R.C. 3109.04(F)(1) factors:

(a) the parents do not agree on allocation of parental rights;

(b) the child was not interviewed;

(c) the child has an on-going and wholesome relationship with
numerous family and friends in the Marysville area, including
maternal relatives and grandparents. No substantive evidence
was presented on the child’s relationship with his step-brother
or step-father;

(d) the child is integrated into Father and Grandparent’s home
in Marysville. No evidence was presented regarding his
adjustment to Michigan;

(e) there is no evidence of metal [sic] or physical health of any
person being a factor;

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(f) Mother has unilaterally and without justification withheld
the child from Father and his family for an extended period of
time in an effort to compel Father’s compliance with Mother’s
will. Mother appears to believe that Father has parental rights
only at her sufferance;

(g) Father is in arrears on his child support payments,
however, that the [sic] arrearage maybe [sic] incidental to his
injury and inability to work;

(h) Neither parent has been convicted of an offense of the
nature set forth in R.C. 3109.04[(F)(a)(1)(h)] involving a family
member who is part of the current proceedings;

(i) Mother willfully denied parenting time to the Father in
breach of this court’s order; and

(j) Although it is said to be for a period of two years, Mother
has established a residence in Michigan.

(J.E. Sept. 14, 2009 at 6-5)

{¶36} After reviewing the record, it is apparent that the magistrate’s best

interest findings were substantially based upon testimony provided by Sara and

Ben discussed above. Based on the testimony elicited at the hearing, we find that

there is a substantial amount of competent, credible evidence to support the

magistrate’s finding that granting custody to Ben was in Jacob’s best interest.

{¶37} Finally, we note that after finding that a change in circumstance has

occurred and that Jacob’s best interests would be served by a modification of

custody in this case, the magistrate may not modify the custody order unless it is

determined that the harm likely to be caused by the change of environment is

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outweighed by the benefits of the change of environment. See R.C.

3109.04(E)(1)(a)(iii).

{¶38} With regard to this inquiry, the magistrate focused on Jacob’s

integration with his extended family and Jacob’s acclimation to his current school

in Marysville. The magistrate also assessed the potential harm caused to Jacob by

a weekly eight-hour car trip. The magistrate found that these factors established

that the harm likely to be caused by the change of environment is outweighed by

the benefits of the change of environment. The magistrate further concluded that

“[b]ecause of the previous living arrangement of the parties and [Ben]’s extended

parenting, a reallocation of parental rights at this time actually preserves continuity

to a greater [degree than not] changing custody.” (J.E. Sept. 14, 2009, at 7.)

{¶39} We acknowledge that both Sara and Ben love Jacob and are fully

capable of providing a home for him. However, based on the record before us, we

find that the magistrate’s decision is supported by a substantial amount of

competent, credible evidence and does not constitute an abuse of discretion.

Accordingly, we cannot find that the trial court abused its discretion in adopting

the magistrate’s decision and as such Sara’s second assignment of error is

overruled.

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{¶40} For all these reasons, the November 5, 2009 judgment of the Union

County Court of Common Pleas adopting the magistrate’s decision to reallocate

the parties’ parental rights is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J., and ROGERS, J., concur.

/jlr

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