concurring. I concur with the majority in its judgment of reversal. I write separately, however, to make three points.
First, I am at a loss to determine what this court would have the trial judge do upon remand. That court has already awarded custody to appellant and that, in effect, is what the majority opinion herein holds. Obviously the majority would have the trial judge direct the referee to write a more “temperate” opinion. That is easy enough to say if you have not had to sit through one of these proceedings and watch opposing parties literally attempt to tear each other apart. It just could be that the trial judge was moderate in his comments given what he received, both orally and in writing, from the referee.
Be that as it may, the majority has remanded this case to the trial court for “* * * further proceedings in accordance with this opinion.” What further proceedings? The same traumatic parade of hostile venom — only updated? The same ultimate finding (custody to appellant) with the exception that the finding be accompanied by a more “moderate” opinion reciting all the usual domestic relations and psychological contradictions that often *76are, by necessity, found in such opinions, thereby passing appellate muster? It seems obvious from the majority opinion that if the trial judge proceeds in such a manner, then his decision will be approved. But at what price? Such a “proceeding” seems like such an unnecessary charade unless the trial court can just review its previous record and write its new opinion. Unfortunately, the majority opinion gives no direction in this regard. I am grateful that I am not the trial judge who has to determine what this court has mandated his next step to be. Frankly, I would not know.
My second point concerns R.C. 3105.21(A). I recognize there has been nothing previously announced on this point which could have guided the trial judge in this case. I regret that we have not taken the opportunity to do so. R.C. 3105.21(A) states:
“Upon satisfactory proof of the causes in the complaint for divorce, annulment, or alimony, the court of common pleas shall make an order for the disposition, care, and maintenance of the children of the marriage, as is in their best interests, and in accordance with section 3109.04 of the Revised Code.” (Emphasis added.)
It is my judgment that the trial judge in this case did have the authority and jurisdiction to make a custody determination because a divorce was involved. Had he done so, then any subsequent move by appellee to change custody would have been governed by R.C. 3109.04(B)(1), which is my third point.
R.C. 3109.04(B)(1) states:
“Except as provided in division (B)(2) of this section, the court shall not modify a prior custody decree 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 custodian, * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian * * * designated by the prior decree, unless one of the following applies:
“(a) The custodian * * * agree[s] to a change in custody.
“(b) The child, with the consent of the custodian * * * has been integrated into the family of the person seeking custody.
“(c) 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 the change of environment to the child.”
Thus, there is a higher standard to be applied and applying that standard, appellee, on the record before us, could not make her case.
With the foregoing comments, I concur in the reversal of the judgment of the court of appeals.