Gessner v. Gessner

[Cite as Gessner v. Gessner, 2017-Ohio-7514.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY

PHILIP GESSNER :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-6
:
v. : Trial Court Case No. 2012-DR-375
:
KELLY GESSNER nka THOMAS : (Domestic Relations Appeal)
:
Defendant-Appellant :
:

...........

OPINION

Rendered on the 8th day of September, 2017.

...........

JOHN A. HERNDON, Atty. Reg. No. 0067284, 121 South Market Street, Troy, Ohio
45373
Attorney for Plaintiff-Appellee

JAY M. LOPEZ, Atty. Reg. No. 0080819, 18 East Water Street, Troy, Ohio 45373
Attorney for Defendant-Appellant

.............

WELBAUM, J.
 -2-

{¶ 1} Defendant-Appellant, Kelly Gessner nka Thomas appeals from a judgment

amending the shared parenting plan entered into by Thomas and her ex-husband,

Plaintiff-Appellee, Phillip Gessner. According to Thomas, the trial court erred in finding

that there had been a change of circumstances since the prior order. Thomas also

contends that the trial court erred in finding that a modification to the prior order was in

the best interest of the parties’ children.

{¶ 2} We conclude that trial courts do not need to find a change of circumstances

in considering modification of parenting time under R.C. 3109.04(E)(2)(b). However,

even if a change of circumstances were required, the trial court did not abuse its discretion

in finding that a change of substance occurred. Finally, the trial court did not abuse its

discretion in concluding that the increase in Gessner’s parenting time was in the children’s

best interest. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In October 2012, the trial court filed a judgment decree of dissolution and

judgment decree of shared parenting, approving a shared parenting plan entered into by

Thomas and Gessner for the care of their two minor children, B.G. and D.G. When the

decree was filed, B.G. was four years old, and D.G. was six years old. The plan provided

that both parents would share the permanent custody, care, maintenance and control of

their minor children, and would have equal rights and responsibilities. Both parents were

also designated as residential parents for purposes of school placement.

{¶ 4} Gessner was given parenting time on Tuesdays and Thursdays from 3:00
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p.m. to 8:00 p.m., and on alternating weekends beginning on Friday at 5:00 p.m. and

ending on Sunday at 5:00 p.m. Gessner was also given other parenting time as the

parties mutually agreed. The parenting plan additionally provided for summer vacation

parenting time and for specific holiday parenting time.

{¶ 5} At the time, the parties had nearly identical incomes, and no spousal support

was awarded. In addition, a deviation was made in child support, with no child support

obligation being designated. This was based on the equal amount of time Gessner

would spend with the children and his payment of one-half of the child-related expenses

set forth in the parenting plan. These expenses included sports fees, school fees,

band/chorus fees, employment-related child care, and various other expenses.

{¶ 6} The parenting plan contained a somewhat unusual payment system in which

the parties were required to exchange a detailed accounting of expenses and supporting

documentation each month on the 5th day of the month. After documentation was

exchanged, the party who had paid less expenses would be required to reimburse the

other party on or before the 12th of the month. The plan further stated that:

Prior to either party incurring expenses for the parties’ children, each

parent shall consult the other in order to mutually agree and set financial

boundaries and expectations. Each parent acknowledges that one

parent’s monthly budget may not be as flexible as the other parent’s monthly

budget and the parent’s [sic] shall communicate with the other prior to

certain expenses being incurred for their children. In the event the parties

cannot mutually agree on certain expenditures for their children, the best

interest of the children shall be given consideration.
 -4-

Doc. # 4, p. 9.

{¶ 7} Subsequently, in January 2016, an attorney for the Miami County Child

Support Enforcement Agency (MCCSEA) submitted the matter to the trial court for review

of a recommendation for administrative modification of a child support order issued by

MCCSEA. The review was requested by Gessner, who had been ordered to pay a total

of $676.76 per month, plus a 2% processing fee, for child support when health insurance

was being provided. According to the paperwork, Gessner’s yearly income was $49,

121, and Thomas’s income was $61,671.

{¶ 8} The trial court set a hearing for March 15, 2016, and then continued the

hearing to May 10, 2016. On May 6, 2016, Gessner filed a motion to amend the

parenting plan and consolidate this motion with the child support issue. Gessner

proposed that he be allowed the following parenting times: every Tuesday beginning at

3:00 p.m. and concluding on Wednesday morning at 8:00 a.m.; every Thursday beginning

at 3:00 p.m. and ending on Friday morning at 8:00 a.m.; alternating weekends beginning

on Friday at 5:00 p.m. and ending on Monday at 8:00 a.m. In addition to the above time,

Gessner asked for increased parenting time during the summer.

{¶ 9} The trial court appointed a guardian ad litem (GAL) for the children on May

16, 2016, and subsequently set a final hearing for September 16, 2016. At the hearing,

which was before a magistrate, the parties presented testimony from the GAL, Thomas,

and Gessner. The GAL had also previously filed a report on August 1, 2016.

{¶ 10} After hearing the testimony, the magistrate issued a decision finding a

change in circumstances and also concluding that modification of the parenting plan was

in the children’s best interest. The magistrate recommended that Gessner have
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parenting time during the school year on Tuesdays from 4 to 8:00 p.m., on Thursdays

from 4:00 p.m. to Friday at 8:00 a.m., and from Thursday at 4:00 p.m. to Sunday at 6:00

p.m. on alternate weekends. During summer break, Gessner would be entitled to

parenting time on Tuesday at 4:00 p.m. to Wednesday at 8:00 a.m., on Thursday at 4:00

p.m. to Friday at 8:00 a.m., and on alternating weekends from Thursday at 4:00 p.m. to

Monday at 8:00 a.m.

{¶ 11} The magistrate further recommended that Gessner pay $717.36 in child

support, and that Thomas would now be responsible for school fees and expenses, as

well as expenses related to sports, school, and community activities.

{¶ 12} Both parties objected to the magistrate’s decision, and filed supplemental

memoranda after the hearing transcript was filed. The magistrate also filed an amended

decision. Subsequently, on February 21, 2017, the trial court issued a decision adopting

in part and modifying in part the amended magistrate’s decision. Specifically, the court

overruled Thomas’s objections to the modification of parenting time, and decreased

Gessner’s child support obligation to $606.90 per month, plus a 2% processing fee.

{¶ 13} A judgment entry reflecting the court’s decision was filed on March 24, 2017,

and Thomas timely appealed from the judgment. Gessner did not appeal.

II. Did the Trial Court Err in Finding a Change of Circumstances?

{¶ 14} Thomas’s First Assignment of Error states that:

The Trial Court Erred in Finding There Has Been a Change of

Circumstance Since the Prior Order.

{¶ 15} Under this assignment of error, Thomas contends that there was no change
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in circumstances other than an increase in the children’s ages, which is insufficient to

justify modifying the parenting plan. Notably, the case before us does not involve a

change in custody; instead, it concerns only minor adjustment of parenting time.

{¶ 16} R.C. 3109.04(E) contains various provisions pertaining to modification of

shared parenting plans. R.C. 3109.04(E)(1)(a) states that:

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:

(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.
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{¶ 17} This statute also provides other ways to change an existing decree. For

example, R.C. 3109.04(E)(1)(b) allows a prior decree allocating parental rights to be

changed to a shared parenting plan upon the motion of one or both parents, where the

court finds that modification is authorized under R.C. 3109.04(E)(1)(a).

{¶ 18} R.C. 3109.04(E)(2) contains two additional methods that can be used to

modify shared parenting plans. The first method is found in R.C. 3109.04(E)(2)(a) and

allows modification by agreement of both parents. The second method is found in R.C.

3109.04(E)(2)(b).

{¶ 19} This second method provides, in pertinent part, that:

In addition to a modification authorized under division (E)(1) of this

section:

***

(b) The court may modify the terms of the plan for shared parenting

approved by the court and incorporated by it into the shared parenting

decree upon its own motion at any time if the court determines that the

modifications are in the best interest of the children or upon the request of

one or both of the parents under the decree. Modifications under this

division may be made at any time. The court shall not make any

modification to the plan under this division, unless the modification is in the

best interest of the children.

(Emphasis added.) R.C. 3109.04(E)(2)(b).

{¶ 20} As a result, modifications under R.C. 3109.04(E)(1)(a) require both a

change in circumstances and a best interest evaluation, while modifications under R.C.
 -8-

3109.04(E)(2)(b) require only an assessment of the children’s best interest.

{¶ 21} In 2007, the Supreme Court of Ohio issued a decision in Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546. Since that time, Ohio

appellate districts have been divided on the question of whether modification of parenting

time requires a showing of a change in circumstances.

{¶ 22} Fisher considered a certified conflict concerning whether “ ‘a change in the

designation of residential parent and legal custodian of children [is] a “term” of a court

approved shared parenting decree, allowing the designation to be modified solely on a

finding that the modification is in the best interest of the children pursuant to R.C.

3109.04(E)(2)(b) and without a determination that a “change in circumstances” has

occurred pursuant to R.C. 3109.04(E)(1)(a).’ ” Id. at ¶ 2, quoting the question certified

by the Third District Court of Appeals.

{¶ 23} In Fisher, the parties had originally entered into a shared parenting

agreement providing shared custody and equal sharing of parental rights and

responsibilities. After both parties moved to become sole residential parent and legal

custodian of their child, the trial court terminated the shared parenting plan and

designated the mother as the residential parent and legal custodian. Id. at ¶ 3. In doing

so, the trial court used a best interest analysis, but did not analyze whether a substantive

change in circumstances had occurred. Id. at ¶ 4.

{¶ 24} After the father appealed, the Third District Court of Appeals noted varying

approaches to whether modifications should be analyzed under R.C. 3109.04(E)(1)(a) or

R.C. 3109.04(E)(2)(b), and concluded that courts could modify terms of shared parenting

plans under R.C. 3109.04(E)(2)(a) on their own motions or at a party’s request, as long
 -9-

as the modification was in a child’s best interest. Id. at ¶ 8. The Third District then

“examined the definition of ‘terms’ in R.C. 3109.04(E)(2)(b) to determine whether a

change in the residential parent and legal custodian of a child qualified as a ‘term’ of a

shared-parenting plan.” Id. at ¶ 9.

{¶ 25} Ultimately, the Third District concluded that “ ‘the General Assembly's use

of the word “terms” in R.C. 3109.04(E)(2)(b) shows its intent to allow trial courts to modify

all provisions incorporated in a shared parenting plan.’ ” Fisher, 116 Ohio St.3d 53,

2007-Ohio-5589, 876 N.E.2d 546, at ¶ 9, quoting Fisher v. Hasenjager, 168 Ohio App.3d

321, 2006-Ohio-4190, 859 N.E.2d 1022, ¶ 36 (3d Dist.). The court of appeals, therefore,

held that “the trial court was permitted to modify the shared-parenting plan with respect

to the residential parent and legal custodian of the child under R.C. 3109.04(E)(2)(b) * *

*.” Id.

{¶ 26} When the Supreme Court of Ohio considered the certified question, it

disagreed. After analyzing the pertinent statutes, the court stated that:

In summary, R.C. 3109.04(E)(1)(a) expressly provides for the

modification of parental rights and responsibilities in a decree. An

allocation of parental rights and responsibilities is a designation of the

residential parent and legal custodian. Therefore, R.C. 3109.04(E)(1)(a)

controls when a court modifies an order designating the residential parent

and legal custodian.

While the designation of residential parent and legal custodian can

be modified under R.C. 3109.04(E)(1)(a), that designation cannot be

modified under R.C. 3109.04(E)(2)(b), which allows only for the modification
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of the terms of a shared-parenting plan.

Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 26-27.

{¶ 27} After making these statements, the court considered the distinction between

a “ ‘plan’ ” and a “ ‘decree.’ ” Id. at ¶ 29-30. In this regard, the court noted that “[w]ithin

the custody statute, a ‘plan’ is statutorily different from a ‘decree’ or an ‘order.’ ” Id. at

¶ 29. The court then stated that:

An order or decree is used by a court to grant parental rights and

responsibilities to a parent or parents and to designate the parent or parents

as residential parent and legal custodian.

However, a plan includes provisions relevant to the care of a child,

such as the child's living arrangements, medical care, and school

placement. R.C. 3109.04(G). A plan details the implementation of the

court's shared-parenting order. For example, a shared-parenting plan

must list the holidays on which each parent is responsible for the child and

include the amount a parent owes for child support.

A plan is not used by a court to designate the residential parent or

legal custodian; that designation is made by the court in an order or decree.

Therefore, the designation of residential parent or legal custodian cannot

be a term of shared-parenting plan, and thus cannot be modified pursuant

to R.C. 3109.04(E)(2)(b).

Fisher at ¶ 29-31.

{¶ 28} After making these observations, the court focused on the difference in

standards used in R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b). In this regard, the
 -11-

court stressed that:

To read both sections, with different standards, to apply to a court's analysis

modifying the decree modifying a child's residential parent and legal

custodian would create inconsistency in the statute. Two different standards

cannot be applied to the same situation.

Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a),

may only be made “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 shared parenting decree, and that

the modification is necessary to serve the best interest of the child.” This

is a high standard, as a “change” must have occurred in the life of the child

or the parent before the court will consider whether the current designation

of residential parent and legal custodian should be altered. Conversely,

R.C. 3109.04(E)(2)(b) requires only that the modification of the shared-

parenting plan be in the best interest of the child.

(Emphasis added.) Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at

¶ 32-33.

{¶ 29} Finally, the court commented that:

The standard in R.C. 3109.04(E)(2)(b) for modification of a shared-

parenting plan is lower because the factors contained in a shared-parenting

plan are not as critical to the life of a child as the designation of the child's

residential parent and legal custodian. The individual or individuals
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designated the residential parent and legal custodian of a child will have far

greater influence over the child's life than decisions as to which school the

child will attend or the physical location of the child during holidays.

Further, factors such as the physical location of a child during a particular

weekend or holiday or provisions of a child's medical care are more likely to

require change over time than the status of the child's residential parent and

legal custodian.

(Emphasis added.) Fisher at ¶ 36.

{¶ 30} As was noted, after Fisher was decided, appellate districts have disagreed

about whether changes in amounts of parenting time are terms of a shared parenting plan

subject to modification under the lesser “best interest” standard used in R.C.

3109.04(E)(2)(b), rather than the “change of circumstances” standard in R.C.

3109.04(E)(1)(a). See Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-

Ohio-1921, ¶ 32-40. Ramsey rejected the view of the Ninth District in Gunderman v.

Gunderman, 9th Dist. Medina No. 08CA0067-M, 2009-Ohio-3787, and agreed with the

decisions of the Third and Fourth Districts in Picciano v. Lowers, 4th Dist. Washington

No. 08CA38, 2009-Ohio-3780, and Sanders-Bechtol v. Bechtol, 3d Dist. Hancock No. 5-

08-08, 2009-Ohio-186. Ramsey at ¶ 37-40. The Tenth District, therefore, agreed that

“the best interest standard in R.C. 3109.04(E)(2)(b) controls the analysis of the change in

parenting time, not the change in circumstances requirement of R.C. 3109.04(E)(1)(a).”

Ramsey at ¶ 38, citing Picciano at ¶ 24.

{¶ 31} In Gunderman, the Ninth District Court of Appeals concluded, conversely,

that “a request for a change in parenting time is a request to alter the physical control of
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the child and thus constitutes a request to modify the allocation of parental rights and

responsibilities.” Gunderman at ¶ 23. Consequently, “when a party files a motion to

modify parenting time under a shared parenting plan, the party is seeking a reallocation

of parental rights and responsibilities issued under a prior order or decree as opposed to

a change in a term of the parties’ shared parenting plan” and “the motion must be

considered under R.C. 3109.04(E)(1)(a).” Id.

{¶ 32} Other appellate districts have adopted positions consistent with the Third,

Fourth, and Tenth District Courts of Appeal. See Lake v. Lake, 11th Dist. Portage No.

2009-P-0015, 2010-Ohio-588, ¶ 70 (“ ‘allocation of parenting time is a ‘term’ of a shared

parenting plan, which is modifiable if the change is in the children's best interests.’ ”);

Murphy v. Murphy, 1st Dist. Hamilton No. C-130229, 2014-Ohio-656, ¶ 38 (under Fisher,

“child support is among the many terms of a shared-parenting plan, and may be modified

by the court sua sponte under R.C. 3109.04(E)(2)(b) upon a finding that the modifications

are in the best interest of the children”); Kovach v. Lewis, 5th Dist. Ashland No. 11-COA-

018, 2012-Ohio-1512, ¶ 26 (same holding as Lake); Fritsch v. Fritsch, 1st Dist. Hamilton

No. C-140163, 2014-Ohio-5357, ¶ 20-21 (following Picciano and concluding that the trial

court properly applied the best interest test in R.C. 3109.04(E)(2)(b) “to modify the

designation of the residential parent for school purposes”); and In re E.L.C., 12th Dist.

Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 42-45 (modification of residential parent

for school purposes is evaluated only under “best interest” test).1

1 The Eighth District has used a somewhat hybrid approach, finding that R.C.
3109.04(E)(1)(a) applies where a “modification involves a substantial change in parental
rights * * *,” but that R.C. 3109.04(E)(2)(b) applies where the modification is not
substantial. Berger v. Feng, 8th Dist. Cuyahoga No. 96513, 2012-Ohio-1041, ¶ 30.
However, Berger cited a pre-Fisher case and did not mention Fisher. This approach is
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{¶ 33} Research indicates that we have not considered this specific point after

Fisher was issued. We did mention Fisher in a case involving a modification of

residential parent status, where the parents lived in separate states, but we did not

discuss Fisher in detail, nor did we consider whether parenting time is a “term” of a

parenting plan under Fisher. We simply noted Fisher’s holding “that a court may not

modify the designation of a residential parent and legal custodian of a child in a shared-

parenting decree without first determining that a ‘change in circumstances’ has occurred

and that the modification is in the best interest of the child.” Sutton v. Sutton, 2d Dist.

Montgomery No. 24108, 2011-Ohio-1439, ¶ 14.

{¶ 34} Likewise, we have cited either Sutton or Fisher, or both, in a number of

cases relating to a “change of circumstances” analysis, but have never engaged in the

analysis of parenting as a “term.” See Montei v. Montei, 2d Dist. Clark No. 2013-CA-24,

2013-Ohio-5343, ¶ 21 and 26 (citing both Sutton and Fisher in case involving motion to

modify shared parenting plan and cross-motion to terminate parenting plan and obtain

sole custody of child ); Walton v. Walton, 2d Dist. Montgomery No. 26841, 2016-Ohio-

436, ¶ 10 (citing Sutton only and not mentioning Fisher in case involving request to modify

school district, health care costs, and provision of health care insurance); In re A.P., 2d

Dist. Champaign No. 2012-CA-18, 2012-Ohio-4965, ¶ 7 (in case involving motion to

change designation of residential parent, citing Sutton but not Fisher, for the proposition

that “a court may not modify the designation of a residential parent for school purposes

under a shared-parenting plan without finding that a change in circumstances has

occurred and that such modification is in the best interest of the child”); Gillum v. Gillum,

inconsistent with the analysis in Fisher.
 -15-

2d Dist. Montgomery No. 24401, 2011-Ohio-2558, ¶ 8 (applying both Sutton and Fisher

in case involving motion for change of custody); In re Z.B., 2d Dist. Champaign No. 09-

CA-42, 2010-Ohio-3335, ¶ 31 (citing Fisher and “change of circumstances” in case

involving motion to change residential parent and legal custody); Sheppeard v. Brown, 2d

Dist. Clark No. 2007-CA-43, 2008-Ohio-203, ¶ 1 (citing Fisher in case involving motion to

change custody); Bell v. Bell, 2d Dist. Clark No. 2007-CA-9, 2007-Ohio-6347, ¶ 12 and

27 (citing Fisher in case involving motion for change of custody); Thomas v. Thomas, 2d

Dist. Clark No. 2009-CA-88, 2011-Ohio-2977, ¶ 29 (citing Fisher in case involving change

of custody).

{¶ 35} In short, we have never analyzed Fisher in connection with the appropriate

statutory basis for considering a motion for modification of parenting time. On

consideration, we agree with the majority of appellate districts that modification of

parenting time, as opposed to modification of residential parent and legal custodian,

should be evaluated under R.C. 3109.04(E)(2)(b), and a showing of “change in

circumstances” under R.C. 3109.04(E)(1)(a) is not required. Our decision is based on

several factors.

{¶ 36} First, Fisher clearly indicates that R.C. 3109.04(E)(1)(a) applies to motions

to change the designation of residential parent and legal custodian. Typically, this arises

when a parent wishes to change legal custody or become the sole residential parent and

legal custodian rather than sharing custody. Applying a higher standard in such

situations makes sense, because changes in custody are significant and can greatly

affect children. They should be subjected to a high standard.

{¶ 37} As an additional matter, when Fisher discussed the distinction between
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legal custody (part of a “decree”) and matters like parenting time (part of a parenting

“plan”), the court referred to R.C. 3109.04(G). See Fisher, 116 Ohio St.3d 53, 2007-

Ohio-5589, 876 N.E.2d 546, at ¶ 30 (noting that “a plan includes provisions relevant to

the care of a child, such as the child's living arrangements, medical care, and school

placement. R.C. 3109.04(G). A plan details the implementation of the court's shared-

parenting order.”) In Gunderman, the Ninth District Court of Appeals did not mention this

part of R.C. 3109.04.

{¶ 38} R.C. 3109.04(G) states that:

A plan for shared parenting shall include provisions covering all

factors that are relevant to the care of the children, including, but not limited

to, provisions covering factors such as physical living arrangements, child

support obligations, provision for the children's medical and dental care,

school placement, and the parent with which the children will be physically

located during legal holidays, school holidays, and other days of special

importance.

(Emphasis added.)

{¶ 39} The amount of time a child spends with each parent is encompassed within

the meaning of a “physical living arrangement,” and is, therefore, a provision or term in a

plan for shared parenting under R.C. 3109.04(G).

{¶ 40} Finally, R.C. 3109.04(E)(2) provides two additional ways in which shared

parenting plans may be modified. Specifically, R.C. 3109.04(E)(2) begins with the

phrase “[i]n addition to a modification authorized under division (E)(1) of this section [R.C.

3109.04] * * *.” (Emphasis added.) If the standards in R.C. 3109.04(E)(1)(a) were
 -17-

intended to apply to all motions to modify shared parenting plans, there would have been

no need to authorize “additional” methods of modification in R.C. 3109.04(E)(2)(b), nor

would there have been a reason to include a less stringent standard for evaluating these

types of requests.

{¶ 41} The circumstances of the present case illustrate why a lesser standard is

appropriate. Gessner’s motion did not request a change in custody or legal status;

instead, he asked for minimal increases in his parenting time. Gessner already had

parenting time two nights a week from 3:30 p.m. to 8:00 p.m., and simply asked to keep

his children overnight those evenings and take them to school or to their mother’s home

at 8:00 a.m. the following morning. Gessner also already had parenting time from Friday

night to Sunday evening; again, he asked only to keep the children overnight on Sunday

night and take them to school or to their mother’s home at 8:00 a.m. Monday mornings.

{¶ 42} The final proposed change was for additional time during the summer

(basically weeknights from 5:00 to 9:00), which was, in fact, a schedule the parties had

followed on their own volition during the summer of 2013 or 2014.2

{¶ 43} While a change in circumstances does not have to be “substantial,” it “must

be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). “ ‘The clear intent of [R.C. 3109.04]

is to spare children from a constant tug of war between their parents who would file a

motion for change of custody each time the parent out of custody thought he or she could

provide the children a “better” environment. The statute is an attempt to provide some

2The testimony was not clear about the year. The GAL stated that the summer deviation
occurred in 2014, while Thomas stated that it was 2013. In any event, Thomas
unilaterally decided to end the increased summer parenting time.
 -18-

stability to the custodial status of the children, even though the parent out of custody may

be able to prove that he or she can provide a better environment.’ ” Id., quoting Wyss v.

Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982).

{¶ 44} A significant difference exists between motions for change of custody and

requests for additional parenting time. Accordingly, the trial court was not required to

consider whether a change in circumstances had occurred.

{¶ 45} However, even if the trial court were required to consider the point, we find

no error. We review parenting decisions for abuse of discretion. See, e.g., Blessing v.

Blessing, 2d Dist. Montgomery No. 27353, 2017-Ohio-2878, ¶ 18. “ ‘Abuse of discretion’

has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.”

(Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The Supreme

Court of Ohio has stressed that “most instances of abuse of discretion will result in

decisions that are simply unreasonable.” Id. Furthermore, the court has said decisions

are unreasonable if they are not supported by a “sound reasoning process * * *.” Id.

{¶ 46} In the case before us, the trial court found a change in circumstances based

on the following factors: the children had matured and had become more independent in

the four years since the parenting plan was implemented; both boys shared Gessner’s

interest in certain activities, like camping, hunting, and fishing; Gessner had exercised

additional parenting time with Thomas’s consent; and both boys had told the GAL and

Gessner that they wanted to spend more time with their father.

{¶ 47} According to Thomas, there has been no change in circumstances, and the

current parenting schedule works well for the children. She further contends that the trial
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court mischaracterized the children’s wishes because the youngest child, at times, did not

want to visit his father.

{¶ 48} We have reviewed the entire record, including the GAL’s report, and the

record supports the trial court’s decision. At the time of the original decree, the boys

were four and six years old. When the hearing on modification occurred, they were eight

and ten years old. We agree that “[a] mere passage of time does not constitute a change

of circumstances * * *.” Scarberry v. Scarberry, 2d Dist. Clark No. 10-CA-0091, 2011-

Ohio-2829, ¶ 13. However, the passage of time is sufficient when combined with other

relevant factors, including a child’s expressed wishes. (Citation omitted.) Pellettiere v.

Pellettiere, 2d Dist. Montgomery No. 23141, 2009-Ohio-5407, ¶ 19.

{¶ 49} The children, particularly B.G., were quite young at the time of the original

decree. When the children were interviewed by the GAL four years later, they both said

they wanted to spend more time with their father. They told their father that, as well.

Gessner also testified that the boys were getting more mature since the dissolution, and

that he and the boys had many similar interests, including athletics, the outdoors, fishing,

and hunting. In concluding that circumstances had changed, the magistrate noted these

facts. Magistrate’s Decision and Permanent Order/Judgment Entry, Doc. #37, p. 3.

After reviewing the record, the trial court agreed with the magistrate.

{¶ 50} We defer to trial court findings because a “ ‘trial judge 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.’ ” Davis, 77 Ohio

St.3d at 418, 674 N.E.2d 1159, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984).
 -20-

{¶ 51} Both parties indicated that initially, B.G. gravitated more toward his mother,

but even Thomas admitted that B.G. was currently a lot more willing to spend time with

his father and brother. And, as noted, B.G. told the GAL that he wanted to spend more

time with his father. These factors indicate a change of substance since the original

decree.

{¶ 52} Accordingly, the trial court did not abuse its discretion in concluding that a

change in circumstances had occurred. The First Assignment of Error, therefore, is

overruled.

III. Was Modification of Parenting Time in the Children’s Best Interest?

{¶ 53} Thomas’s Second Assignment of Error states that:

The Trial Court Erred in Finding that a Modification to the Parenting

Time Schedule Was in the Best Interest of the Minor Child.

{¶ 54} Under this assignment of error, Thomas contends that the trial court erred

in concluding that modification was in the children’s best interest. Thomas focuses on

the fact that the children were doing well, on her own fears that the children might not get

sufficient sleep at Gessner’s home, on B.G.’s alleged lack of desire to go with his father,

and on Thomas’s testimony that there were times when homework had not been done

while the children were at Gessner’s home.

{¶ 55} R.C. 3109.04(F)(1) provides a non-exhaustive list of factors that trial courts

are to use in deciding a child’s best interest. As pertinent to this case, the factors include:

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

***
 -21-

(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 * * *.

{¶ 56} The magistrate carefully reviewed these factors and found that “[q]uite

clearly, it is in [the children’s] best interest to modify the shared parenting plan to provide

more parenting time for Phillip * * *.” Magistrate's Decision and Permanent

Order/Judgment Entry, Doc. #37, p. 7. The trial court agreed when it overruled

Thomas’s objections. Again, we review decisions on “best interest” for abuse of

discretion. (Citations omitted.) Brown v. Brown, 2d Dist. Champaign No. 2012-CA-40,

2013-Ohio-3456, ¶ 12. After reviewing the record, we find no abuse of discretion.

{¶ 57} The record indicates that Gessner wants to spend additional time with the

children, and Thomas is opposed to any change in the schedule. Additionally, the

testimony and GAL report reveals that the children have close relationships to both

parents and have a good relationship with their stepfather. The children are well-
 -22-

adjusted to their community. Notably, while the parents live fairly near each other,

Gessner lives only a few blocks from the children’s school. There are no significant

issues with the children. Despite Thomas’s concern about whether schoolwork is being

done at Gessner’s home, both boys have maintained very good grades, and they are

involved in a number of sports activities.

{¶ 58} The magistrate noted that no one had chronic mental health or physical

problems that would impact parenting time. This conclusion is supported by the record,

which indicates that the only mental health issue involved minor counseling for D.G., to

address emotions related to the end of his parents’ marriage. D.G. did tell the GAL that

he wished his parents would stop fighting.

{¶ 59} The parental conflict primarily appears to have been over finances, which

should be resolved by the trial court’s decision to award a sum certain for child support

and end the vast majority of sharing expenses for the children, which necessitated

monthly exchanges of expenses and receipts. However, Thomas did have a tendency

to make unilateral decisions about the children, such as deciding to restrict Gessner’s

summer visitation after allowing him additional time previously, or enrolling the children in

an expensive sports activity without getting Gessner’s agreement. On the other hand,

Thomas complained about instances in which Gessner had been disrespectful to her in

front of the children.3 The parties are reminded that using “ ‘children as pawns in a war

between divorced and embittered parents * * * has no victors and the ultimate casualties

are the children, who stand to suffer deeply and permanently unless their parents can

learn to control their hostility and anger towards each other.’ ” Greenlee v. Greenlee, 2d

3 Thomas did not mention anything like this to the GAL, however.
 -23-

Dist. Montgomery No. 26059, 2014-Ohio-2306, ¶ 36, quoting Bell v. Bell, 2d Dist. Clark

No. 97-CA-105, 1998 WL 288945, *1 (June 5, 1998). (Other citation omitted.)

{¶ 60} The most important factor is the wishes of the children. While the

magistrate did not interview the children, the GAL did, and stated that both children

wanted additional time with their father.

{¶ 61} From this perspective, we note that the trial court only minimally increased

Gessner’s parenting time. Gessner was given an additional overnight stay for the

children during the school year on Thursdays, but only on alternate weekends when he

had the children for the weekend. He was also given an occasional extension of

parenting time on Sunday evenings to Monday mornings, when the Monday following his

weekend was a day off from school not designated in the plan’s holiday schedule. The

court also gave Gessner additional minimal time during summers, when he was permitted

to have the children from Thursday evening to Monday morning on alternate weeks.

{¶ 62} These minimal increases address Thomas’s stated concerns about

homework and getting the children to bed on time on school nights. Specifically,

Gessner would have the children overnight on school nights only a few times per month.

Under the circumstances, we cannot conclude that the trial court’s decision was

unreasonable, arbitrary, or capricious.

{¶ 63} The remaining pertinent factor addresses child support payments. No

child support was previously ordered. As was noted, the parties experienced conflict

over shared expenses, and neither party was completely blameless. However, this issue

was addressed by removing the sources of conflict.

{¶ 64} After reviewing the entire record, we conclude that the trial court did not
 -24-

abuse its discretion by finding that a modification of parenting time was in the children’s

best interest. Accordingly, the Second Assignment of Error is overruled.

IV. Conclusion

{¶ 65} All of Thomas’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

HALL, P.J. and DONOVAN, J., concur.

Copies mailed to:

John A. Herndon
Jay M. Lopez
Hon. Christopher Gee