[Cite as Barrett v. LeForge, 2012-Ohio-5865.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

DAVID W. BARRETT                                     C.A. No.       26381

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
WENDY LEFORGE                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2003-08-3047

                                 DECISION AND JOURNAL ENTRY

Dated: December 12, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}    David Barrett and Wendy LeForge have a son, J.B., who was born in 1998. In

2004, the trial court approved a shared parenting plan that named Mr. Barrett as the residential

parent. A few years later, it granted Mr. Barrett permission to move J.B. to Arizona. A couple

of years after that, a police officer stopped Mr. Barrett for speeding while J.B. was with him.

During the stop, the officer noticed that Mr. Barrett appeared intoxicated, and Mr. Barrett ended

up pleading guilty to driving under the influence and endangerment. After Ms. LeForge learned

about the convictions, she moved to reallocate the parties’ parental rights. Following a hearing, a

magistrate found that there had been a change in circumstances and determined that it was in

J.B.’s best interest to reside with Ms. LeForge. The trial court sustained Mr. Barrett’s objections

to the magistrate’s decision, however, concluding that it could not modify the shared parenting

plan because there had not been a substantial change in circumstances.            The court also
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determined that, even if there had been a change in circumstances, J.B. should remain with Mr.

Barrett. Ms. LeForge has appealed, assigning as error that the court incorrectly determined that

there had not been a change in circumstances and that it failed to consider J.B.’s wishes in

considering whether to modify the residential parent designation. We reverse because Mr.

Barrett’s conviction for driving under the influence while J.B. was in the vehicle constituted a

change in circumstances under Section 3109.04(F) of the Ohio Revised Code and the trial court

failed to consider all of the required factors in determining whether to modify the shared

parenting plan.

                                CHANGE IN CIRCUMSTANCES

       {¶2}       Ms. LeForge’s first assignment of error is that the trial court incorrectly

determined that she failed to establish that a change in circumstances had occurred that had a

substantial impact on J.B. Under Section 3109.04(E)(1)(a) of the Ohio Revised Code, “[t]he

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.” According to the Ohio Supreme Court, a change in circumstances “must be a change of

substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418

(1997). That is because “[t]he statute is intentionally designed . . . ‘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 child a better environment.’”

Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, ¶ 7 (quoting Davis, 77 Ohio St. 3d at
                                                3


418). The Ohio Supreme Court has also explained that a trial court must “have wide latitude in

considering all the evidence before [it] . . . .” Davis, 77 Ohio St. 3d at 418. Accordingly, the

court’s determination regarding whether a change of circumstances has occurred will not be

disturbed “absent an abuse of discretion.” Id. at paragraph one of the syllabus.

       {¶3}    Ms. LeForge has argued that the fact that Mr. Barrett was convicted for operating

a motor vehicle under the influence and that J.B. was a passenger in the vehicle at the time of the

offense constitutes a change in circumstances for purposes of Section 3109.04(E)(1)(a). She has

also argued that, since Mr. Barrett moved to Arizona, he has divorced his wife, moved multiple

times, and changed J.B.’s school.       According to Ms. LeForge, the magistrate correctly

determined that “[t]he changes are significant enough, especially when taken together,” to

constitute a change in circumstances.

       {¶4}    Mr. Barrett has argued that the trial court’s decision was correct. He has argued

that this Court can only look at whether there was a change in circumstances from the last time

the trial court evaluated who should be the residential parent, which was in March 2009.

According to Mr. Barrett, at the time of the last evaluation he was already divorced. He has also

argued that he and J.B. have only moved once since March 2009 and that it was to a new school

district that he and Ms. LeForge mutually selected. He has further argued that J.B. has not

suffered any negative effects from his convictions, noting that it has not caused J.B. to miss any

school or affected his grades.

       {¶5}    In Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, Jesse Oberlin

divorced Ashley Oberlin. The trial court named Mr. Oberlin as the residential parent of the

parties’ daughter even though he had been convicted of operating under the influence. At the

time the court issued its decree, it did not know that Mr. Oberlin had been arrested again for
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operating under the influence. When Ms. Oberlin learned about the second arrest, she moved to

modify the decree.      The trial court found that the second arrest constituted a change in

circumstances under Section 3109.04(E)(1)(a). Id. at ¶ 13. We concluded that its determination

was proper given the possibility that the parties’ daughter had been “negatively affected by the

information” and that the second arrest “was indicative of a larger problem.” Id. We also noted

that there was evidence that Mr. Oberlin’s work schedule was about to change, which was going

to affect the daughter’s daily schedule. Id. at ¶ 14.

       {¶6}    This Court has held that a criminal conviction can constitute a change in

circumstances under Section 3109.04(E)(1)(a) if the offense has had “a direct or probable effect

on the child.” Neighbor v. Jones, 9th Dist. No. 24032, 2008-Ohio-3637, ¶ 8 (concluding that the

trial court should have analyzed whether mother’s conviction for a sexually-oriented criminal

offense against a minor constituted a change in circumstances); see also Kirchhofer v.

Kirchhofer, 9th Dist. No. 09CA0061, 2010-Ohio-3797, ¶ 11-13 (upholding decision that

mother’s arrest for possession of marijuana and driving while under the influence constituted a

change in circumstances); Nagel v. Hogue, 12th Dist. No. CA2007-06-011, 2008-Ohio-3073, ¶

20 (concluding that father’s conviction for voyeurism constituted change in circumstances);

Bauer v. Bauer, 4th Dist. No. 06CA2, 2006-Ohio-7096, ¶ 25 (concluding that change of

circumstances had occurred as a result of mother’s arrest for recreational drug use). Upon

review of the record, we conclude that the trial court incorrectly determined that there had not

been a change of circumstances under Section 3109.04(E)(1)(a) of the Ohio Revised Code. Not

only was Mr. Barrett convicted of a criminal offense, the conduct that led to his conviction put

J.B.’s safety directly at risk. See Nagel, 2008-Ohio-3073 at ¶ 55 (noting that father’s criminal
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conduct raised “serious concerns regarding the safety of the parties’ children.”). Ms. LeForge’s

first assignment of error is sustained.

                                   BEST INTEREST OF CHILD

       {¶7}    Ms. LeForge’s second assignment of error is that the trial court’s determination

that it is not in J.B.’s best interest to modify the shared parenting plan was against the manifest

weight of the evidence. Her third assignment of error is that the court incorrectly failed to adopt

J.B.’s wishes when it evaluated whether it was in his best interest to make her the residential

parent. Because these assignments of error involve the same issues, we will consider them

together.

       {¶8}    There are ten factors that a court must consider when determining whether it is in

the best interest of a child to modify a decree allocating parental rights and responsibilities. R.C.

3109.04(F)(1). Those factors are “[t]he wishes of the child’s parents[,] . . . the wishes and

concerns of the child, . . . [t]he child’s interaction and interrelationship with the child’s parents,

siblings, and any other person who may significantly affect the child’s best interest[,] [t]he

child’s adjustment to the child’s home, school, and community[,] . . . [t]he mental and physical

health of all persons involved in the situation[,] . . . [t]he parent more likely to honor and

facilitate court-approved parenting time rights[,] . . . [w]hether either parent has failed to make

all child support payments, . . . [w]hether 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[,] . . . [w]hether 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[,] . . . [and] [w]hether either parent has
                                                  6


established a residence, or is planning to establish a residence, outside this state.”           R.C.

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

       {¶9}    Although concluding that there had not been a change in circumstances, the trial

court found that it was also in J.B.’s best interest for Mr. Barrett to remain the residential parent.

It found that designating Mr. Barrett as the residential parent had helped to curb J.B.’s

oppositional defiant disorder, that Ms. LeForge had been unable to hold J.B. accountable for his

actions, and that Mr. Barrett was “better suited to provide the accountability and consistency that

[J.B.] needs.” It also found that Ms. LeForge had refused to return J.B. to Arizona after her

summer parenting time in 2008. It decided that “[n]aming [Ms. LeForge] the residential parent

for school purposes would not be in [J.B.]’s best interest primarily because [he] is doing better in

school while he is with [Mr. Barrett] than he would if he were with [Ms. LeForge] and also

because [Mr. Barrett] is the parent who will foster [J.B.]’s relationship with the other parent.”

       {¶10} In determining whether it is in a child’s best interest to modify the allocation of

parental rights and responsibilities, the trial court “shall consider” all of the factors listed in

Section 3109.04(F)(1). R.C. 3109.04(F)(1). As Ms. LeForge has pointed out, there is no

indication in the trial court’s decision that it considered J.B.’s “wishes and concerns.” R.C.

3109.04(F)(1)(b). We, therefore, conclude that the court’s judgment must be vacated and this

matter remanded so that the trial court may determine, after consideration of all of the factors

enumerated in Section 3109.04(F)(1), whether it is in J.B.’s best interest to modify the shared

parenting plan. Ms. LeForge’s second and third assignments of error are sustained.

                                          CONCLUSION

       {¶11} The trial court incorrectly concluded that Mr. Barrett’s conviction for driving

under the influence while J.B. was in the vehicle did not constitute a change in circumstances
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under Section 3109.04(E)(1)(a) of the Ohio Revised Code. It also failed to consider all of the

required factors in determining whether it is in J.B.’s best interest to modify the shared parenting

plan. The judgment of the Summit County Common Pleas Court, Domestic Relations Division

is reversed, and this matter is remanded for further consideration of Ms. LeForge’s motion to

reallocate parental rights and responsibilities.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CLAIR E. DICKINSON
                                                       FOR THE COURT
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BELFANCE, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

RONALD L. CAPPELLAZZO, Attorney at Law, for Appellant.

LESLIE S. GRASKE, Attorney at Law, for Appellee.
