[Cite as Syverson v. Syverson, 2012-Ohio-5569.]


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

HEIDI SYVERSON                                        C.A. No.       12CA010205

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KYLE SYVERSON                                         COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   07DU068461

                                 DECISION AND JOURNAL ENTRY

Dated: December 3, 2012



        WHITMORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Heidi Syverson (“Mother”), appeals from the judgment of the

Lorain County Court of Common Pleas, Domestic Relations Division. This Court reverses.

                                                  I

        {¶2}    Mother and Defendant-Appellee, Kyle Syverson (“Father”), divorced in 2008. At

that time, the trial court journalized a shared parenting plan for the care of their two children: a

girl (“Daughter”), born in 1994, and a boy (“Son”), born in 1999. Because only Father had filed

a shared parenting plan and the plan the court adopted was different than the plan Father had

filed, this Court reversed the trial court’s judgment on appeal and remanded the matter for further

proceedings. See Syverson v. Syverson, 9th Dist. No. 09CA009527, 2009-Ohio-6701. After this

Court’s remand, the parties mediated and signed an agreed upon entry, which the court later

adopted as its order.
                                                2


       {¶3}    The divorce decree named both Mother and Father as residential parents and legal

custodians of Daughter and Son. The parties agreed that if either intended to change residences

in the future he or she would file a notice of intent to relocate. They further agreed: “[t]he

residential parent for school enrollment purposes shall not change the residence of the children to

any County not contiguous to Lorain County without the prior written permission of the other

parent or the permission of the Court having been first duly obtained.” Mother was named the

residential parent for school enrollment purposes.

       {¶4}    On May 9, 2011, Mother filed a notice of her intent to relocate to Mother and

Father’s hometown of Williston, North Dakota. Father responded by filing a motion to modify

the allocation of the parties’ rights and responsibilities. The court conducted an in camera

hearing with Daughter and Son as well as a hearing on Mother’s motion to relocate. The court

concluded that Mother had failed to demonstrate a change in circumstances had occurred since

the adoption of the parties’ shared parenting plan and denied her motion. The court also refused

to modify the parties’ rights and responsibilities, as both parties agreed a modification would be

unnecessary if the court denied Mother’s motion.

       {¶5}    Mother now appeals from the trial court’s judgment and raises five assignments of

error for our review. For ease of analysis, we consolidate the assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT IN ERROR FOUND THAT THERE WAS NO CHANGE
       OF CIRCUMSTANCES BETWEEN THE PARTIES THAT ARE UNABLE TO
       COMMUNICATE, WHICH WAS NOT CONTEMPLATED PRIOR TO
       ENTERING INTO A SHARED PARENTING PLAN.
                                                 3


                               Assignment of Error Number Two

       THE TRIAL COURT IN ERROR FOUND THAT THERE WAS NO CHANGE
       OF CIRCUMSTANCES BETWEEN THE PARTIES WHEN THE MINOR
       CHILDREN OF THE PARTIES DESIRE TO RELOCATE, WHICH WAS NOT
       CONTEMPLATED PRIOR TO ENTERING INTO A SHARED PARENTING
       PLAN.

                               Assignment of Error Number Three

       THE TRIAL COURT IN ERROR FAILED TO PERMIT APPELLANT TO PUT
       ON EVIDENCE OF HER CHANGE OF CIRCUMSTANCES BETWEEN THE
       PARTIES WHEN MOTHER’S EMPLOYMENT CEASES TO GRANT
       INCREASES, REDUCES ITS EMPLOYEES, AND MOTHER FINDS
       EMPLOYMENT WHERE THE PARTIES ENTIRE EXTENDED FAMILY
       RESIDE.

                               Assignment of Error Number Four

       THE TRIAL COURT IN ERROR DENIED A NOTICE OF INTENT TO
       RELOCATE WHERE THERE IS NO OBJECTION TO THE RELOCATE
       TIMELY FILED BY THE OPPOSING PARENT.

                                Assignment of Error Number Five

       THE TRIAL COURT IN ERROR DENIED APPELLANT’S NOTICE OF
       INTENT TO RELOCATE WHERE THE ONLY EVIDENCE ON THE
       RECORD PRESENTS OTHERWISE.

       {¶6}    In her assignments of error, Mother argues that the trial court erred by denying

her motion to relocate because (1) the evidence supported the conclusion that she demonstrated

that a change in circumstances had occurred, and (2) Father never objected to Mother’s motion to

relocate.

       {¶7}    “It is well established that an appellate court will not disturb the custody decision

of a trial court absent a finding that the trial court abused its discretion.” Lempner v. Lempner,

9th Dist. No. 04CA008580, 2005-Ohio-4543, ¶ 7. “If * * * a litigant challenges a particular

factual finding of the trial court, this Court will review the trial court’s factual conclusion for

competent, credible evidence.” Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, ¶ 7.
                                                   4


Yet, the trial court’s ultimate “determination of ‘whether a change in circumstances has occurred

so as to warrant a change in custody’ is one that must be reviewed under an abuse of discretion

standard.” Id. at ¶ 7, quoting Davis v. Flickinger, 77 Ohio St.3d 415 (1997), paragraphs one and

two of the syllabus.       An abuse of discretion implies that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

          {¶8}   Initially, we note that although Mother filed a notice of her intent to relocate, R.C.

3109.051 does not apply to this case. The parties agreed that if either of them ever intended to

change residences in the future he or she would file a notice of intent to relocate. See R.C.

3109.051(G)(1). Yet, both parents were given custody of Daughter and Son. R.C. 3109.051

only applies when one parent has custody. See R.C. 3109.051. “Given the fact that both parents

are deemed to have custody in this case, * * * R.C. 3109.051 is not applicable.” Martin v.

Martin, 9th Dist. No. 20567, 2002 WL 388902, *2 (Mar. 13, 2002). Our understanding of the

parties’ agreement is that they meant to use a notice of intent to relocate as a triggering device to

alert a party of the other’s intention to move. Consequently, while Mother filed a notice of intent

to relocate, her notice is properly analyzed as a motion to modify under R.C. 3109.04. Id.

          {¶9}   The standard a court must apply to a parent’s motion to modify depends upon

whether the parent seeks to modify the allocation of parental rights and responsibilities or simply

a term of the shared parenting plan implementing the custodial arrangement.                 Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 26-27. A modification to the allocation of

parental rights and responsibilities requires proof of a change of circumstances as well as proof

that the modification is in the best interest of the child(ren). Id. at ¶ 33. See also R.C.

3109.04(E)(1)(a). Conversely, a modification of a term of shared parenting plan only requires
                                                  5


proof that the modification is in the best interest of the child(ren).          Id.   See also R.C.

3109.04(E)(2)(b).

       {¶10} “[W]hen a party requests modification of either the physical and/or legal control

of the child, that party is requesting a modification of a prior decree allocating parental rights and

responsibilities.” Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶

23. “[A] request for a change in parenting time is a request to alter the physical control of the

child and thus constitutes a request to modify the allocation of parental rights and

responsibilities.” Id. As such, the parent requesting the change must demonstrate both that a

change in circumstances has occurred and that the modification is in the best interests of the

child. Id. Accord Lempner, 2005-Ohio-4543, at ¶ 6-17 (change of circumstances and best

interest analyses applied to parent’s motion to relocate child in a shared parenting situation).

       {¶11} The change required to satisfy the change of circumstances prong of R.C.

3109.04(E)(1)(a) “must be a change of substance, not a slight or inconsequential change.”

Davis, 77 Ohio St.3d at 418. A parent’s mere “‘desire’ to leave the state does not on its own

constitute a substantial change in circumstances * * *.” Masters v. Masters, 69 Ohio St.3d 83,

86 (1994).

       However, the relocation of the child is certainly a factor the trial court should
       consider when determining if a change in circumstances has occurred. The
       attendant circumstances, as well as the impact the move will have on the child, the
       non-moving party, and other extended family members who have formed a bond
       with the child, can be considered by the trial court when determining whether or
       not a change in circumstances has occurred.

(Internal citations omitted.) Lempner at ¶ 10. “[T]he child’s age, coupled with his [or her]

expressed desire to live with a different parent,” can constitute a change in circumstances

depending on “all of the surrounding circumstances unique to [the] case.” Pryor v. Hooks, 9th

Dist. No. 25294, 2010-Ohio-6130, ¶ 10.          “A change of circumstances can also include a
                                                 6


breakdown in communication between the parents and their inability to communicate and

cooperate.” Sypherd v. Sypherd, 9th Dist. No. 25815, 2012-Ohio-2615, ¶ 20.

       {¶12} Mother presented evidence that she had an offer of full-time employment in North

Dakota. Michele Kroger, the office manager at Select Energy Services, testified that the offer to

Mother was for a salaried position that included a 401(k) plan as well as free employee housing,

if Mother wished to pursue that option. Mother wanted to relocate with the children to North

Dakota for several reasons. First, Mother testified that she feared for the stability of her current

employment with Key Bank. Although Mother was still employed with the bank and still had a

pension at the time of the hearing, Mother testified that Key Bank was currently downsizing and

that it was unclear whether it would be able to guarantee her pension in the future. Second,

Mother testified that her children had expressed to her a strong desire to move to North Dakota.

Daughter specifically approached Mother to ask about moving back to North Dakota, and Son

also wanted to move there. With regard to Son, Mother testified that he was “failing miserably”

in school and refused to “try anymore.” Third, Mother testified that there had been a breakdown

in communication between her and Father. Mother described a recent situation in which she told

Father that she would not be able to accommodate a change in his schedule. According to

Mother, Father:

       got angry with me and then changed the entire schedule. And said we would no
       longer vary on our schedule. It is what it is. And he was no longer willing to
       work with me on that.

The guardian ad litem for the children also informed the court that the litigation between Mother

and Father over the last few years had “basically decimated any type of relationship” between

them. The guardian ad litem told the court that the relationship between Mother and Father was
                                                 7


“definitely taking a toll on [the] kids.” The guardian ad litem also pointed to Mother and

Father’s “failure of interrelationship” as “the reason why [Son is] now struggling in school.”

       {¶13} The trial court wrote in its decision:

       [Mother] testified that she has not lost her employment with Key Bank and that
       she has a pending job offer in North Dakota where both she and [Husband] were
       born and raised. It is important to note that this job offer is a different job offer
       than the one she had when her motion to relocate was originally filed. This Court
       does not find a change of circumstances necessary to allow relocation at this time.

       Had [Mother] filed the Motion to Relocate if unemployed here in Ohio and while
       an offer was pending in North Dakota, this Court would have found a sufficient
       change in circumstances and would have reached the best interests of the children
       test.

The court also discussed ripeness extensively at the hearing, reasoning that Mother’s

employment situation would not rise to the level of a change in circumstances until she actually

lost her current job. Consequently, the trial court denied Mother’s motion on the basis that a

pending job offer does not demonstrate a change of circumstances when the parent who seeks to

relocate maintains his or her present employment. Because the court found that Mother had

failed to demonstrate a change of circumstances, it did not perform a best interest analysis.

       {¶14} Mother’s job offer was not the only evidence she offered to demonstrate a change

in circumstances.    There was also testimony that a breakdown in communication between

Mother and Father had occurred and, on at least one specific occasion, the parties had been

unable to come to an agreement about a scheduling change. See Sypherd, 2012-Ohio-2615, at ¶

20. Apart from Mother’s own testimony, the guardian ad litem informed the court that the

parties’ relationship had been “decimated” by litigation. Importantly, the guardian ad litem also

told the court that the relationship between Mother and Father was negatively affecting Daughter

and Son to the extent that he believed it was hampering Son’s academic performance. The court

also conducted an in camera hearing with both Daughter and Son and acknowledged that it was
                                                  8


the desire of both to move to North Dakota. Father did not produce any evidence at the hearing

on Mother’s motion.

        {¶15} Based on our review of the record, we must conclude that the trial court failed to

consider the totality of all the surrounding circumstances in this case in reaching a decision. See

Pryor, 2010-Ohio-6130, at ¶ 10. The record does not support the conclusion that Mother sought

to relocate simply because she desired to leave the state. Compare Masters, 69 Ohio St.3d at 86.

Nor is this a case where the children simply desired to live somewhere else, absent any other

evidence that a change had occurred. Compare Baxter v. Baxter, 9th Dist. No. 10CA009927,

2011-Ohio-4034, ¶ 11-12. Mother set forth evidence that “a change of substance” had occurred

since the parties’ rights and responsibilities had been allocated. Davis, 77 Ohio St.3d at 418.

Namely, there had been a breakdown in the relationship of the parties, Daughter and Son were

suffering as a result of the current relationship between the parties, and both children strongly

desired to move to North Dakota. The trial court abused its discretion when it concluded that no

change in circumstances had occurred simply because Mother was still currently employed in

Ohio.

        {¶16} Mother’s first, second, third, and fifth assignments of error are sustained on the

basis that the trial court abused its discretion by failing to find that a change in circumstances had

occurred. This Court will not address whether relocation would be in the best interests of

Daughter and Son, as the trial court must conduct that analysis in the first instance upon remand.

Based on our resolution of Mother’s other assignments of error, her fourth assignment of error is

moot and we decline to address it. See App.R. 12(A)(1)(c).
                                                 9


                                                III

       {¶17} Mother’s first, second, third, and fifth assignments of error are sustained, and her

fourth assignment of error is moot. The judgment of the Lorain County Court of Common Pleas,

Domestic Relations Division, is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                             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 Lorain, 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.




                                                      BETH WHITMORE
                                                      FOR THE COURT



CARR, J.
CONCURS.
                                                10



MOORE, J.
DISSENTING.

       {¶18} I respectfully dissent from the majority holding that the trial court abused its

discretion in failing to conclude that a change in circumstances had taken place that would

support wife’s motion to relocate. While I agree with the majority that there were other relevant

circumstances for the court to take into consideration, it is not clear to me from reviewing the

transcript of the hearing that the court failed to consider those factors. Further, could we say

definitively that the court ignored other factors, I am not convinced that a consideration of those

factors discussed in the majority opinion lead to the conclusion that a change of substance had

taken place.

       {¶19} The court correctly noted at the close of the hearing that “the Domestic Relations

Court has a tremendous amount of latitude in these cases” and “I’m not taking it lightly.” The

court also said, “One of the factors in changing and modifying the shared parenting is also

whether the parent intends to relocate [] or has relocated.” (Emphasis added.) There is nothing in

the record to indicate that the fact that wife’s job was still intact was the only factor the court

considered. In fact, throughout the course of the hearing, the court made note on several

occasions that it had interviewed the children in camera and was aware of the wishes they had

expressed. Also before the court was wife’s testimony that, while she had applied for more than

one position in North Dakota, she had not applied to any positions in Ohio. A fair reading of the

court’s ruling leads to the conclusion that the court focused on an analysis of wife’s request to

relocate based on a job offer because that was the substance of the testimony offered in the

hearing. There is nothing to suggest that the court ignored testimony regarding the children’s

interpersonal struggles or their parents’ difficulty in communicating.
                                               11


        {¶20} Given the fact that the court had the opportunity to consider the demeanor of the

witnesses that testified and make the appropriate credibility determinations, I cannot say the

court abused its discretion in overruling wife’s motion to relocate. Therefore, I would affirm the

decision of the trial court.


APPEARANCES:

TONY DALAYANIS, Attorney at Law, for Appellant.

DOUGLAS C. BLACKBURN, Attorney at Law, for Appellee.
