Thompson v. Thompson

[Cite as Thompson v. Thompson, 2013-Ohio-2587.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

ROBERT THOMPSON : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JANEL THOMPSON NKA HUGHES : Case No. 2012CA00176
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 08 DR 848

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 17, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

LORI E. FUCHS JEFFREY JAKMIDES
P.O. Box 35787 325 East Main Street
Canton, OH 44735 Alliance, OH 44601
Delaney, J.

{¶1} Defendant-Appellant Janel Hughes, f.k.a. Janel Thompson (“Mother”),

appeals from the September 18, 2012 decision of the Stark County Court of Common

Pleas, Domestic Relations Division, approving the Motion to Modify the Shared

Parenting Plan of Plaintiff-Appellee Robert Thompson (“Father”).

FACTS AND PROCEDURAL HISTORY

{¶2} Mother and Father were married March 14, 2001, and three children

were born of the marriage: Robert III, born July 22, 2002; Samuel, born October 3,

2003; and Angel, born April 26, 2006. The parties’ marriage was terminated by a

Judgment Entry of Divorce filed March 31, 2009 in the Stark County Court of Common

Pleas, Domestic Relations Division. The entry approved a Shared Parenting Plan and

Mother was designated residential parent of the three children. Father was granted

companionship and ordered to pay child support.

{¶3} On July 29, 2010, Father filed a Motion to Modify Visits. Mother

responded with a Motion to Dismiss and Motion for Sanctions. Both parties’ motions

were overruled.

{¶4} On April 24, 2012, Mother filed a Notice of Intent to Relocate to

Columbus, Ohio. Father was not served with the Notice, but was aware of the

relocation. On June 4, 2012, Father filed a Motion to Modify Shared Parenting Plan,

requesting designation as residential parent for school purposes and termination of

child support.

{¶5} On June 14, 2012, Father filed a Motion for Ex-Parte Order seeking

designation as temporary custodian of the children and prohibiting Mother from having
any contact with them. The order was granted on June 14 and a guardian ad litem

was appointed on July 9, 2012. Mother filed a Motion to Rescind Ex Parte Order on

July 12, 2012 and a Motion to Show Cause. On August 9, 2012, the trial court

vacated the no-contact order and set all pending motions for trial on August 13, 2012.

Evidence Produced at Trial

{¶6} The following relevant facts are adduced from the testimony of Father,

Mother, and the guardian ad litem at trial.

{¶7} Through March, 2012, the parties cooperated in the custodial

arrangement. Both parties lived in Canton and although Mother was residential

parent, they lived near each other and Father would pick up the kids after school and

keep them until Mother was done with her workday.

{¶8} In late February, 2012, Father lost his employment with Marathon

Petroleum. As of the date of trial, he was still attempting to get him job back through

arbitration. In the meantime, he was self-employed as a musician.

{¶9} In April, 2012, Mother became aware of a job opportunity in Columbus,

which is also where her family is located. The parties agreed the children would stay

with Father to finish the school year.

{¶10} Father testified that he was motivated to file an Ex Parte Motion and

Order when his children told him they were being watched by “Mr. Mark” and maternal

grandmother when Mother is at work. Father was concerned because he doesn’t

know “Mr. Mark” and grandmother is off-limits for the children because Mother was

sexually assaulted by grandmother’s boyfriend, who still lives with her. The no-contact

order was granted and Father became temporary custodian of the children.
 {¶11} Father works Sunday through Thursday as a musician in local Stark

County-area bars and restaurants and occasionally on the weekends. His hours are

usually from around 8:00 p.m. until as late as 1:00 a.m., and a babysitter watches the

children while he is working. The babysitter told the guardian ad litem that Father is

away too much.

{¶12} When she lived in Canton, Mother was employed at Koyo Bearings

making around $40,000 per year with bonuses. She found another job in Columbus

making $45,000 per year, with the possibility of higher bonuses. Mother has lived in

five different residences in 18 months, all rentals. She had lived with her boyfriend,

Eric Lacey, who helped her with child care, in Canton, but upon moving to Columbus

moved in with Mark Bell whom she described as a “family friend.” Maternal

grandmother lives in the Columbus area with her boyfriend, who reportedly sexually

assaulted Mother and her sister although no criminal charges were filed. Paternal

grandfather served a prison term for drug possession. Mother enrolled the children in

a new school in Columbus.

{¶13} The guardian ad litem testified that he spoke to the children briefly, to the

parties, to Father’s designated babysitter, to maternal grandmother, and to Mark Bell.

The guardian ad litem recommended returning the children to Mother’s custody with

Father having court-ordered visitation.

{¶14} On September 18, 2012, the trial court issued a Judgment Entry

approving Father’s Motion to Modify the Shared Parenting Plan, designating him

residential parent for school purposes and granting Mother parenting time in

accordance with the Stark County Family Court Parenting Time Schedule.
 {¶15} Mother appeals from the trial court’s decision of September 18, 2012.

ASSIGNMENT OF ERROR

{¶16} Appellant raises one Assignment of Error:

{¶17} “I. THE TRIAL COURT’S DECISION TO DESIGNATE PLAINTIFF-

APPELLEE ROBERT THOMPSON RESIDENTIAL PARENT OF THE PARTIES’

THREE MINOR CHILDREN WAS UNREASONABLE, ARBITRARY, AND

UNCONSCIONABLE, ESPECIALLY GIVEN MR. THOMPSON’S FILING OF AN EX-

PARTE MOTION TO A JUDGE NOT ASSIGNED TO THE CASE AND BASED ON AN

AFFIDAVIT RIDDLED WITH FALSEHOODS, PREVENTING MS. HUGHES FROM

SEEING HER CHILDREN FOR SEVEN WEEKS.”

ANALYSIS

{¶18} Mother argues the trial court abused its discretion when it modified the

Shared Parenting Decree and Plan because it is in the children’s best interest to move

to Columbus with her.

Standard of Review: Modification of Shared Parenting Plan

{¶19} A trial court enjoys broad discretion in custody proceedings. Cossin v.

Holley, 5th Dist. No.2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v. Flickinger,

77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus. An

appellate court reviews the merits of a trial court's modification of the terms of the

Shared Parenting Plan through R.C. 3109.04(E)(2)(b) under an abuse of discretion

standard. Picciano v. Lowers, 4th Dist. No. 08CA38, 2009–Ohio–3780, ¶ 25. In order

to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶20} R.C. 3109.04(E) governs modification of a Shared Parenting Decree

and/or a Shared Parenting Plan. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–

Ohio–5589, 876 N.E.2d 546, ¶ 11. R.C. 3109.04(E)(1)(a) requires a court to find a

change in circumstances of the child, residential parent, or either parent subject to a

Shared Parenting Decree before modifying a decree allocating parental rights and

responsibilities. Pursuant to the statute, three elements must be met to change the

residential parent status: 1) there must be an initial showing of a change in

circumstances; 2) if circumstances have changed, the modification of custody must be

in the children’s best interest; and 3) any harm to the children from a modification must

be outweighed by the benefits of such modification. See In re Kelly, 7th Dist. No. 09

CA 863, 2011-Ohio-2642.

{¶21} The trial court is “best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Therefore, deferential review in a child custody

determination is especially crucial “where there may be much evident in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger,

77 Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.

{¶22} R.C. 3109.04(E)(1)(a), provides, in pertinent part,

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, [ or] his residential

parent, * * * and that the modification is necessary to serve the

best interest of the child.

Change of Circumstances

{¶23} R.C. 3109.04(E)(1)(a) requires the trial court find a change of

circumstances before it can modify the allocation of parental rights and

responsibilities. “Although R.C. 3109.04 does not provide a definition of the phrase

‘change in circumstances,’ Ohio courts have held that the phrase is intended to denote

‘an event, occurrence, or situation which has a material and adverse effect upon a

child.’” Lewis v. Lewis, 12th Dist. No. CA2001–09–209, 2002 WL 517991 (April 8,

2002), citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d

551 (7th Dist.2000). In order to warrant the abrupt disruption of the child's home life,

the change in circumstances must be one “of substance, not a slight or

inconsequential change.” Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. “The

purpose of requiring a finding of a change in circumstances is to prevent a constant

re-litigation of issues that have already been determined by the trial court. * * *

Therefore, the modification must be based upon some fact that has arisen since the

prior order or was unknown at the time of the prior order.” Brammer v. Brammer, 194

Ohio App.3d 240, 955 N.E.2d 453, 2011–Ohio–2610, ¶ 17 (3rd Dist.), citing R.C.

3109.04(E)(1)(a).
 {¶24} Moreover, and as stated by the Ohio Supreme Court, “a trial judge must

have wide latitude in considering all the evidence” when making a determination of

change of circumstances. Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. If a court

could not consider events as they continued to unfold once a custody motion is filed,

the trial court would be perpetually re-addressing new filings alleging a change in

circumstances due to the inevitable passage of time between the filing of the original

custody motion and the date of the hearing on the motion. This barrier is meant to

operate as the “domestic relations version of the doctrine of res judicata,” and is

meant to prevent the “constant relitigation of the same issues” adjudicated in prior

custody orders. Perz v. Perz, 85 Ohio App.3d 374, 376, 619 N.E.2d 1094(1993).

{¶25} We have previously held that relocation alone is not sufficient to

constitute a change in circumstances, but may be a factor in such determination.

Stein v. Anderson, 5th Dist. No. 2009 AP 08 0042, 2010-Ohio-18, ¶ 13.

{¶26} In the instant case, the trial court found the relocation of the children

from Canton to Columbus to constitute a change in circumstances because it will

make it difficult for Father to play a role in their daily lives, which he has been doing

since either August or October, 2011 when he took an active role in picking them up

from school, while the children resided with him during Mother’s initial weeks in

Columbus, and throughout their sports activities. The trial court also found the

instability of Mother’s lifestyle to be a factor in change of circumstances.

{¶27} Based upon our review of the record, we find the trial court’s decision

regarding change of circumstances does not constitute an abuse of discretion.
 Best Interest of the Children

{¶28} If a change of circumstances is established, the trial court must weigh

the best interest of the children before modifying a residential-parent designation.

R.C. 3109.04(F) sets forth the factors a trial court must consider in determining the

best interest of the child:

(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 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.

{¶29} The trial court examined each statutory factor in turn and the evidence

presented by the parties. We note here the factors that weighed most heavily in the

best-interest determination.

{¶30} Each parent wants the children to reside with him or her. Father lost his

job making $120,000 per year, and Mother indicated her reason for moving to

Columbus is to find a better job than her job at Koyo Bearings making $40,000 per

year. The job she found in Columbus will earn a projected annual income of

$45,002.00 per year, and as the trial court pointed out, there is no evidence she

looked for a job in the Canton area first.

{¶31} The trial court interviewed the children in camera pursuant to R.C.

3109.04(B)(1). We have reviewed the record of the interview, which shall remain
confidential. Willis v. Willis, 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d 878

(12th Dist.2002), ¶ 23. The interview was significant to the trial court and is significant

to our determination that the trial court did not abuse its discretion.

{¶32} Both parents have significant interaction with the children which has

ebbed and flowed over time due to the parents’ work schedules.

{¶33} An issue did arise, however, which potentially implicated the children’s

safety and which was given great significance by the trial court. When Father sought

the Ex-Parte Order resulting in the no-contact order, he alleged Mother was leaving

the children with her boyfriend whom they hardly knew and with her step-grandfather,

who sexually assaulted Mother and her sister when they were younger.

{¶34} These allegations were explored at trial. Mother explained that upon

initially relocating to Columbus, she needed a place to live and stayed with Mark Bell,

whom she referred to as a “family friend.” The children were around Bell during

Mother’s weekends for the 60 days she lived with Bell.

{¶35} It is unclear from the testimony at trial whether maternal grandmother is

married to the person who sexually assaulted Mother, but he is referred to as “step

grandfather” to make the relationship clear. It is evident from the testimony the step

grandfather still lives with maternal grandmother, although Mother denies that she

ever allowed the children to be at maternal grandmother’s home alone. Father insists

otherwise based upon what the children have told him. Either way, the trial court

found it “troubling that the maternal grandmother would stay with a man who sexually

assaulted two of her own children” and therefore “question[ed] the trustworthiness and

credibility of the maternal grandmother.”
 {¶36} Both parents have some issues with lifestyle instability. Father is

presently self-employed as a musician and there was conflicting testimony about how

often he is away from the children at night. Mother has moved five times in 18 months

and has now leased an apartment in Columbus.

{¶37} The children attended Clarendon elementary school for several years,

which is close to Father’s residence. When Mother broke up with her boyfriend, she

rented another home in Canton that required the children to be moved to Fairmont.

Mother’s Columbus apartment is five minutes away from the school she has selected

for the children there.

{¶38} Mother raised the issue at trial and on appeal that Father deprived her of

the children for seven weeks as a result of obtaining the ex parte no-contact order.

The trial court found Father’s concerns for the children’s safety to be reasonable, and

we agree with this determination.

{¶39} The trial court found the best interest of the children warrants that the

parties’ shared parenting plan should be modified, and based upon our review of the

record, we find the trial court did not abuse its discretion in making this determination.

Benefit of Modification Outweighs Harm

{¶40} Finally, the trial court found the harm likely to be caused to the children

by the modification is outweighed by it advantages, and we agree. The trial court did

not abuse its discretion in determining that overall, residing with Father in Canton,

where the children have strong school and athletic ties, along with “the safety and

stability that their [F]ather offers” is paramount in this case.
 {¶41} Upon review, we find no abuse of discretion in the trial court's

determination there was a change in circumstances and it was in the best interests of

the children to change the designation of the residential parent to Father. Mother’s

sole assignment of error is overruled.

CONCLUSION

{¶42} For the foregoing reasons, appellant’s sole assignment of error is

overruled and the judgment of the Stark County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.

Gwin, P.J. and

Baldwin, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. CRAIG R. BALDWIN

PAD:kgb/pm5113
 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

:
ROBERT THOMPSON :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
-vs- :
:
JANEL THOMPSON NKA HUGHES : Case No. 2012CA00176
:
Defendant - Appellant :
:
:

For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Domestic Relations Division is affirmed. Costs

assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. CRAIG R. BALDWIN