[Cite as Polhamus v. Robinson, 2017-Ohio-39.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY



EMILY POLHAMUS,

        PETITIONER-APPELLEE,                            CASE NO. 8-16-11

        v.

VIOLET M. ROBINSON,

        RESPONDENT-APPELLEE,
        -and-                                           OPINION

OLIVER M. GUTIERREZ,

        RESPONDENT-APPELLANT.



                 Appeal from Logan County Common Pleas Court
                         Family Court - Juvenile Division
                           Trial Court No. 10 AD 109

                                    Judgment Affirmed

                           Date of Decision: January 9, 2017




APPEARANCES:

        Miranda A. Warren for Appellant

        Natalie J. Bahan for Appellee, Emily Polhamus
Case No. 8-16-11


PRESTON, P.J.

       {¶1} Respondent-appellant, Oliver M. Gutierrez (“Oliver”), appeals the May

11, 2016 decision of the Logan County Court of Common Pleas, Family Court—

Juvenile Division, denying his motion requesting the trial court to award him legal

and residential custody of his daughter, M.G. For the reasons that follow, we affirm.

       {¶2} This case stems from a shared-custody agreement executed between

Oliver, respondent-appellee, Violet M. Robinson (“Violet”), M.G.’s mother, and

petitioner-appellee, Emily Polhamus (“Emily”), M.G.’s maternal aunt, in which

they agreed to share legal custody of M.G. with Emily having residential custody of

M.G. M.G. was born in 2004 to Oliver and Violet during their marriage. (Doc. No.

1). In 2007, Violet, who had previously separated from Oliver, was diagnosed with

Crohn’s disease. (June 5, 2015 Tr. at 7). Because of Violet’s illness and financial

instability, Emily offered to care for M.G. (Id. at 8). Violet and Emily could not

initially locate Oliver but eventually found him living and working under an

assumed alias. (Id. at 83, 89, 127). Emily consulted an attorney who advised her

that the parties could privately execute a shared-custody agreement to reflect the

parties’ agreement regarding the care and custody of M.G. (Id. at 83-84, 126). The

parties executed a shared-custody agreement (the “shared-custody agreement”)

reflecting that Oliver, Violet, and Emily would share legal custody of M.G. with




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Emily having residential custody of M.G.1 (See id. at 10, 17, 83); (Feb. 24, 2015

Tr. at 9-10).

         {¶3} Emily filed with the Russell County, Virginia Juvenile and Domestic

Relations Court the out-of-court-shared-custody agreement executed by the parties,

and that court issued on March 2, 2007 an agreed order reflecting the shared-custody

agreement of the parties. (See Doc. Nos. 1, 3). (See also June 5, 2015 Tr. at 83).

         {¶4} On June 15, 2010, Emily filed with the Logan County Court of

Common Pleas, Family Court—Juvenile Division, a “Petition to Register Foreign

Custody Decree.” (Doc. No. 1). On November 15, 2010, the trial court granted

Emily’s petition and registered the foreign custody decree. (Doc. No. 12).

         {¶5} On June 20, 2011, Oliver filed a “Notice of Submission of Order” and

submitted to the trial court a September 7, 2010 order of the Russell County court

modifying the March 2, 2007 order regarding Violet’s visitation time. (Doc. No.

14).

         {¶6} On July 13, 2011, Oliver filed a motion to modify Violet’s visitation

time with M.G. (Doc. No. 15). In that motion, Oliver did “not seek to modify the

rights of [Emily] and believe[d] she is a stable and positive influence on [M.G.]”




1
  The shared-custody agreement was executed in Russell County, Virginia where Oliver and Violet were
residing at that time. (June 5, 2015 Tr. at 9, 12). At the time the parties executed that agreement, Emily was
living in Bellefontaine, Ohio. (Id. at 10, 82).

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(Id.). Violet filed on August 11, 2011 an “Objection” to Oliver’s motion. (Doc.

No. 27).

       {¶7} On August 22, 2012, the parties entered an “Agreed Judgment Entry”

(the “agreed-custody entry”) in which, in part, they agreed to continue to share legal

custody of M.G. with Emily continuing to have residential custody of M.G. (Doc.

No. 62).

       {¶8} On January 27, 2014, Oliver filed a “Motion for Reallocation of

Parental Rights and Responsibilities” asking that the trial court grant him legal and

residential custody of M.G. (Doc. No. 65). On February 21, 2014, Emily filed a

memorandum in opposition to Oliver’s motion. (Doc. No. 79). On February 27,

2014, Violet filed an “Answer and Objection” to Oliver’s motion. (Doc. No. 81).

       {¶9} On June 4, 2014, the trial court appointed a guardian ad litem (“GAL”)

for M.G. (Doc. No. 109). The GAL filed his report on February 12, 2015. (Doc.

No. 126).

       {¶10} On July 31, 2014, Oliver filed an addendum to his motion, clarifying

that he was “requesting that custody of [M.G.] be allocated, not reallocated.” (Doc.

No. 113).

       {¶11} After hearings on February 24, 2015 and June 5, 2015, the magistrate

issued his decision on December 17, 2015, concluding that Oliver and Violet

forfeited their paramount right to custody of M.G; that no change of circumstances


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occurred; and that it is in M.G.’s best interest that Emily be M.G.’s “primary

caretaker” if Emily can legally fill that role. (Doc. Nos. 137, 142).

       {¶12} On March 21, 2016, Oliver filed his objections to the magistrate’s

decision. (Doc. No. 143). On May 11, 2016, the trial court overruled Oliver’s

objections to the magistrate’s decision and adopted the magistrate’s decision—

namely, that Oliver and Violet forfeited their paramount right to custody of M.G.

and that no change in circumstances occurred necessitating a modification of the

agreed-custody entry. (Doc. No. 144).

       {¶13} Oliver filed his notice of appeal on June 6, 2016. (Doc. No. 145). He

raises three assignments of error for our review. For ease of our discussion, we first

address together Oliver’s first and second assignments of error, then his third

assignment error.

                            Assignment of Error No. I

       It was an Abuse of Discretion and Against the Manifest Weight of
       the Evidence When the Trial Court Found that the Appellant
       Forfeited His Paramount Right of Custody of Their [sic] Child by
       Contract (Physical Custody) and by Abandonment (Legal
       Custody).

                           Assignment of Error No. II

       It was an Abuse of Discretion and Against the Manifest Weight of
       the Evidence When the Trial Court Failed to Apply All Criteria
       of In Re Perales and Denied Custody of the Minor Child to the
       Appellant.



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       {¶14} In his first and second assignments of error, Oliver argues that the trial

court abused its discretion by concluding that he forfeited his paramount right to

custody of M.G. Stated differently, Oliver challenges the trial court’s parental-

suitability conclusion.   In particular, he argues that the trial court abused its

discretion by concluding that he is an unsuitable parent because he forfeited his

paramount right to custody of M.G. by executing the shared-custody agreement and

by abandoning M.G. Oliver further argues that the trial court failed to apply the In

re Perales criteria in its parental-suitability determination. 52 Ohio St.2d 89 (1977).

       {¶15} As an initial matter, we note that “the juvenile court has exclusive

original jurisdiction to determine the custody of a child who is not a ward of another

Ohio court.” Redmond v. Davis, 7th Dist. Columbiana No. 14 CO 37, 2015-Ohio-

1198, ¶ 33, citing R.C. 2151.23(A)(2). See also Rowell v. Smith, 10th Dist. Franklin

No. 12AP-802, 2013-Ohio-2216, ¶ 57. A juvenile court is to exercise its jurisdiction

in a child-custody matter in accordance with R.C. 3109.04. R.C. 2151.23(F)(1).

       {¶16} “‘Decisions concerning child custody matters rest within the sound

discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-

Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-

Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an

award of custody is supported by a substantial amount of credible and competent


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evidence, such an award will not be reversed as being against the weight of the

evidence by a reviewing court.”’” Id., quoting Walker at ¶ 46, quoting Barto v.

Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol,

49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion must be

found in order to reverse the trial court’s award of child custody.’” Id., quoting

Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85

(1994). “‘An abuse of discretion suggests the trial court’s decision is unreasonable

or unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-

43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

       {¶17} In this case, Oliver, M.G.’s parent, disputes the trial court’s decision

granting Emily, a nonparent, custody of M.G. “It is without question that parents

have a constitutionally protected due process right to make decisions concerning the

care, custody, and control of their children, and the parents’ right to custody of their

children is paramount to any custodial interest in the children asserted by

nonparents.” Rowell at ¶ 27, citing In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-

3361, ¶ 11, citing Troxel v. Granville, 530 U.S. 57, 66 (2000), and citing In re

Murray, 52 Ohio St.3d 155, 157 (1990) and Clark v. Bayer, 32 Ohio St. 299, 310

(1877). “[A] ‘suitable’ parent has a ‘paramount right’ to the custody of their minor

child ‘unless they forfeit that right by contract, abandonment, or by becoming totally


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unable to care for and support those children.’” Redmond at ¶ 34, quoting In re

Perales, 52 Ohio St.2d at 97, citing Clark at 310, and citing Masitto v. Masitto, 22

Ohio St.3d 63, 65 (1986).

       {¶18} “Equally well-settled under Ohio law is the principle that a parent may

voluntarily share with a nonparent the care, custody, and control of his or her child

through a valid shared-custody agreement.” Rowell at ¶ 27, citing Mullen at ¶ 11,

citing In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, ¶ 50 and R.C.

2151.23(A)(2), and citing State ex rel. M.L.G. v. Montgomery, 10th Dist. Franklin

No. 12AP-13, 2012-Ohio-3591, ¶ 21. “The essence of a voluntary shared custody

agreement between a parent and nonparent is the purposeful relinquishment of some

portion of the parent’s right to exclusive custody of the child.” Id., citing Mullen at

¶ 11. “‘A shared-custody agreement recognizes the general principle that a parent

can grant custody rights to a nonparent and will be bound by the agreement.’” Id.,

quoting Mullen at ¶ 11, citing Bonfield at ¶ 48, citing Masitto at 65, and citing Clark

at paragraphs two and three of the syllabus (recognizing that a parent’s grant of

custody to a nonparent through an agreement is lawful and enforceable).

       {¶19} In his first two assignments of error, Oliver argues that the trial court

abused its discretion by concluding that he forfeited his paramount right to custody

of M.G. “Whether a parent has voluntarily relinquished the right to custody is a

factual question to be proven by a preponderance of the evidence.” Id. at ¶ 30, citing


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Mullen at ¶ 14, citing In re Perales at syllabus and Reynolds v. Goll, 75 Ohio St.3d

121, 123 (1996), and citing Penna v. Rowe, 11th Dist. Portage No. 2012-P-0026,

2012-Ohio-5442, ¶ 20 (in an R.C. 2151.23(A)(2) custody proceeding between a

parent and a nonparent, unsuitability is determined by a preponderance of the

evidence). “The determination of whether a ‘“parent relinquishes rights to custody

is a question of fact which, once determined, will be upheld on appeal if there is

some reliable, credible evidence to support the finding.”’” Id., quoting Mullen at ¶

15, quoting Masitto at 66, and citing Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990),

syllabus (“[w]here an award of custody is supported by a substantial amount of

credible and competent evidence, such an award will not be reversed as being

against the weight of the evidence by a reviewing court”). “Likewise, whether a

parent, through words and conduct, has agreed to share legal custody with a

nonparent is also a question of fact.” Id., citing Mullen at ¶ 14. A parent does not

surrender his or her paramount right to custody of the child to a nonparent unless he

or she surrenders that right knowingly and intelligently. Zahler v. Batchelor, 3d

Dist. Hancock No. 5-97-16, 1997 WL 461348, *2 (Aug. 13, 1997), quoting In re

Custody of Carpenter, 41 Ohio App.3d 182, 185 (2d Dist.1987).

       {¶20} “‘A valid shared-custody agreement is reviewed by the juvenile court

and is an enforceable contract subject only to the court’s determinations that the

custodian is a “proper person to assume the care, training, and education of the


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child” and that the shared legal-custody arrangement is in the best interests of the

child.’” Rowell at ¶ 30, quoting Mullen at ¶ 11, quoting Bonfield at ¶ 48, 50.

       {¶21} Although the trial court applied the parental-unsuitability test in

addressing whether Oliver forfeited his paramount right to custody of M.G., the

parental-unsuitability test is not the applicable test in this case. Instead, “the

applicable test in further custody proceedings between [a parent and a nonparent is]

the child’s best interests.” Redmond, 2015-Ohio-1198, at ¶ 62. Here, the trial court

was not faced with an original award of custody between a parent and a nonparent;

rather, the trial court was to address a modification of an original award of custody.

See id. at ¶ 51 (“Where there is a prior order granting shared custody to a non-parent

by incorporating that agreement, the parent does not have a paramount right to

custody. A finding of parental unsuitability is not required in order to refuse the

parent’s later request for sole custody.”), citing In re DeLucia v. West, 7th Dist.

Mahoning No. 05-MA-5, 2005-Ohio-6933, ¶ 32.

       {¶22} Indeed, the parties executed in 2007 a written shared-custody

agreement, and the parties requested a juvenile court in Virginia to issue an agreed-

judgment entry reflecting the parties’ written shared-custody agreement. (See Doc.

No. 1). In 2010, Emily filed with the trial court the 2007 agreed-judgment entry of

the Virginia juvenile court, which the trial court registered. (Doc. No. 12). Prior to

the trial court’s registration of the Virginia juvenile court’s 2007 agreed-judgment


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entry, the Virginia juvenile court modified the shared-custody agreement by

amending Violet’s visitation with M.G. (See Doc. No. 14). The Virginia juvenile

court did not modify the shared-custody agreement between the parties as to Emily

sharing legal custody of M.G. with Oliver and Violet or as to Emily having

residential custody of M.G. (See id.). Again, in 2012, the parties requested that the

trial court issue an agreed-judgment entry, which maintained the terms of the

original shared-custody agreement as to legal and residential custody. (Doc. No.

62).

       {¶23} As such, the record reflects that Oliver agreed to an original award of

custody, which was adopted by the trial court in not fewer than three judgment

entries. Stated differently, Oliver previously relinquished his paramount right to

custody of M.G. See Redmond at ¶ 1, 51. Because Oliver previously relinquished

his paramount right to sole custody of M.G., the trial court did not need to consider

Oliver’s unsuitability in the underlying modification proceeding. See id.; Purvis v.

Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, ¶ 10 (4th Dist.) (“Thus, once a

nonparent has acquired custody, the court need not apply the Perales unfitness

standard to a later request for custody modification.”), citing In re Kovaleski, 4th

Dist. Washington No. 05CA12, 2006-Ohio-317, ¶ 21, citing Bragg v. Hatfield, 152

Ohio App.3d 174, 2003-Ohio-1441, ¶ 17-19 (4th Dist.) (concluding that the

parental-suitability standard applies only in original-custody determinations, not in


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later applications to regain custody of a child after the “parent contracts away rights

for his minor child” and that contract is codified in an agreed entry), citing Masitto,

22 Ohio St.3d at 68. See also In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208,

¶ 38 (“A parent should be given only one unsuitability determination, which should

come at the time of the legal custody hearing. After such a determination has

established, or taken away, a parent’s fundamental custodial rights, the focus must

shift from the rights of the parents to the rights of the child. A child’s rights are

effectuated through the use of the best-interest-of-the-child standard for subsequent

custodial modification requests.”).

       {¶24} Accordingly, we need not address Oliver’s arguments under his first

and second assignments of error pertaining to the trial court’s parental-unsuitability

determination because it was not necessary for the trial court to address that issue

in this case. See Redmond at ¶ 1, 62 (concluding that “the applicable test in further

custody proceedings between the parties was the child’s best interests” when a

parent contractually relinquishes their paramount right in a shared-custody

agreement adopted by the juvenile court). Oliver’s first and second assignments of

error are overruled.

                           Assignment of Error No. III

       It was an Abuse of Discretion and Against the Manifest Weight of
       the Evidence When the Trial Court Found that the Appellant
       Failed to Show that a Change in Circumstances of the Child Had
       Occurred in the Circumstances of the Child or the Custodian

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         Since the Last Decree or that a Modification is Necessary to Serve
         the Best Interest of the Child.

         {¶25} In his third assignment of error, Oliver argues that the trial court

abused its discretion by concluding that Oliver failed to demonstrate a change in

circumstances necessitating a modification of the agreed-custody entry. He also

argues that the trial court’s conclusion that there was no change in circumstances of

the child or the custodian since the agreed-custody entry is against the manifest

weight of the evidence. Oliver further argues under this assignment of error that the

trial court abused its discretion by concluding that there was no change in

circumstances necessitating modification of the agreed-custody entry to serve

M.G.’s best interest.

         {¶26} As an initial matter, we note that Oliver argues that the change-in-

circumstances test under R.C. 3109.04(E)(1)(a) does not apply in a custody dispute

between a parent and nonparent.2 Oliver is wrong. The Supreme Court of Ohio

squarely addressed this argument in In re Brayden James. 113 Ohio St.3d 420,

2007-Ohio-2335. See also Thomas v. Moothart, 3d Dist. Hancock No. 5-02-56,

2003-Ohio-3724, ¶ 11 (“Once an original custody award has been made, the general

rule is that the award will not be modified unless, pursuant to R.C. 3109.04(E)(1)(a),



2
  The majority of Oliver’s argument stems from his erroneous assumption that this case involves an original-
custody determination. In an original-custody-determination case, Oliver is correct that the change-of-
circumstances test under R.C. 3109.04 is inapplicable. Instead, in that instance, as we addressed in Oliver’s
first and second assignments of error, the trial court applies the parental-unsuitability test. See In re Perales,
52 Ohio St.2d at 97.

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a change of circumstances is demonstrated.”), citing Masitto, 22 Ohio St.3d at 68.

Because we determined in Oliver’s first and second assignments of error that this

case does not involve an original-custody determination, the trial court properly

considered the change-of-circumstances test under R.C. 3109.04(E)(1)(a).

      {¶27} R.C. 3109.04(E)(1)(a) provides:

      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.




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      (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.

R.C. 3109.04(E)(1)(a).

      The statute creates a strong presumption in favor of retaining the

      residential parent designation and precludes a trial court from

      modifying a prior parental rights and responsibilities decree unless the

      court finds all of the following:           (1) a change occurred in the

      circumstances of the child, the child’s residential parent, or a parent

      subject to a shared-parenting decree; (2) the change in circumstances

      is based upon facts that arose since the court entered the prior decree

      or that were unknown to the court at the time of the prior decree; (3)

      the child’s best interest necessitates modifying the prior custody

      decree; and (4) one of the circumstances specified in R.C.

      3109.04(E)(1)(a)(i)-(iii) applies.




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Rohrbach v. Rohrbach, 3d Dist. Seneca No. 13-15-14, 2015-Ohio-4728, ¶ 15, citing

In re Brayden James at ¶ 14.3 As such, the threshold question in a custody-

modification case involving a parent and a nonparent is whether a change occurred

in the circumstances of the child or the child’s residential custodian. See In re

Brayden James at ¶ 14 (applying the R.C. 3109.04(E)(1)(a) framework to a parental-

rights-and-responsibility-modification case and noting that the threshold question in

that type of case is whether a change in circumstances occurred).

         {¶28} “‘In determining whether a change in circumstances has occurred so

as to warrant a change in custody, a trial judge, as the trier of fact, must be given

wide latitude to consider all issues which support such a change.’” Rohrbach at ¶

16, quoting Davis v. Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the

syllabus.      Where the trial court’s change-in-circumstances determination is

supported by competent, credible evidence, its decision will not be reversed on

appeal as being against the manifest weight of the evidence. Bracy v. Bracy, 3d

Dist. Allen No. 1-08-15, 2008-Ohio-3888, ¶ 9, citing Duer v. Moonshower, 3d Dist.

Van Wert No. 15-03-15, 2004-Ohio-4025, ¶ 15, citing Hoitt v. Siefer, 105 Ohio

App.3d 104, 107 (3d Dist.1995). “‘Additionally, in custody modification cases, an

appellate court must give the trial court the “utmost respect” because it has the best


3
  “Ohio does not recognize a parent’s attempt to enter into a statutory ‘shared parenting’ arrangement with a
nonparent * * * because the nonparent does not fall within the definition of ‘parent’ under the current
statutes.” In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 11. Here, we have a shared-custody
agreement.

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opportunity to gauge the credibility, attitude, and demeanor of each witness.’” Id.,

quoting Duer at ¶ 15, citing Miller, 37 Ohio St.3d at 74 and Davis at 418. As such,

a trial court’s change-in-circumstances determination under R.C. 3109.04 “‘should

not be disturbed, absent an abuse of discretion.’” Rohrbach at ¶ 15, quoting Davis

at paragraph one of the syllabus. As we noted above, an abuse of discretion suggests

the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore,

5 Ohio St.3d at 219.

       {¶29} In this case, the parties last executed a custody decree in 2012 when

they executed the agreed-custody entry.        As such, Oliver was required to

demonstrate that a change in M.G.’s or Emily’s circumstances occurred from the

time of the agreed-custody entry by way of facts that arose since that entry, or by

way of facts that were unknown to the trial court at the time of the agreed-custody

entry. The magistrate concluded, “Neither party showed that a change has occurred

in the circumstances of the child or the custodian since the last decree or that a

modification is necessary to serve the best interests of the child.” (Doc. No. 137).

More specifically, the magistrate found that “no change in the circumstances of

[M.G.], Emily, Violet or Oliver, has changed since the previous Entry was filed” in

2012. (Id.). After independently reviewing the case in light of Oliver’s objections

to the magistrate’s decision, the trial court overruled Oliver’s objections and

adopted the magistrate’s decision. (Doc. No. 144).


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       {¶30} On appeal, Oliver argues that the trial court abused its discretion by

concluding that there was no change in circumstances necessitating a modification

of the agreed-custody entry. In particular, he argues that the trial court’s conclusion

that there was no change in circumstances necessitating a modification of the

agreed-custody entry is against the manifest weight of the evidence because (1) the

record reflects a communication breakdown between Emily and Oliver necessitating

a modification of the agreed-custody entry; (2) Emily “has threatened to withhold

the agreed upon visitation with the minor child”; and (3) Emily recanted “on the

oral agreement between the parties that the minor child be transitioned back to her

parents’ custody.” (Appellant’s Brief at 16).

       {¶31} A change in circumstances can include a breakdown in

communication between the parents—or in this case a parent and a nonparent

custodian—and their inability to communicate and cooperate.              Eatherton v.

Behringer, 3d Dist. Seneca No. 13-12-23, 2012-Ohio-5229, ¶ 43, citing Milner v.

Milner, 10th Dist. Franklin No. 99AP-13, 1999 WL 1139965, *3 (Dec. 14, 1999).

Also, “[a] custodial parent’s interference with a child’s visitation by the

noncustodial parent may be considered in determining whether a change of

circumstances has occurred.” McLaughlin v. McLaughlin-Breznenick, 3d Dist.

Logan No. 8-06-06, 2007-Ohio-1087, ¶ 31, citing Clark v. Smith, 130 Ohio App.3d

648, 654 (3d Dist.1998), citing Holm v. Smilowitz, 83 Ohio App.3d 757, 773 (4th


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Dist.1992), and citing Mitchell v. Mitchell, 126 Ohio App.3d 500, 505 (2d

Dist.1998).

       {¶32} However, “[i]n reviewing whether the evidence presented in this case

demonstrates that a change in circumstances occurred, we are reminded that the

change must be of substance, not slight or inconsequential.” Eatherton at ¶ 40,

citing Davis at 415. “In addition, R.C. 3109.04(E)(1)(a) does not require that the

change be ‘substantial,’ nor does ‘the change * * * have to be quantitatively large,

but rather, must have a material effect on the child.’” Id., quoting McLaughlin at ¶

16, citing Tolbert v. McDonald, 3d Dist. Allen No. 1-05-47, 2006-Ohio-2377, ¶ 31.

       {¶33} In his decision, regarding the parties’ communication issues, the

magistrate found:

              Oliver believes that he and Emily used to co-parent very well

       together, but since he filed for custody things have not gone as well.

       He testified that there is a lot of tension between Brittany [Gutierrez,

       Oliver’s current wife,] and Emily. In October 2013 Brittany was upset

       with both he [sic] and Emily because they made a deal about

       additional visitation, but they forgot to tell her.

       ***

              Brittany acknowledged that she once told Oliver that he needed

       to deal with Emily himself. She admitted being upset because Oliver


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      and Emily came to an agreement about visitation with [M.G.] but did

      not tell her.

      ***

            Emily believes that Oliver and Brittany don’t always act in

      [M.G.’s] best interest. After visitations with Violet, if [M.G.] returns

      with clothing or other items from Violet’s residence, Brittany

      immediately throws these items away. On one occasion, Oliver and

      Brittany objected when Emily gave Violet a little extra visitation time.

      They objected and said that they needed to approve any changes in

      [M.G.’s] schedule. On another occasion Violet wanted to switch

      summer visitation so [M.G.] could attend a horse camp. Oliver and

      Brittany refused. Additionally, Brittany and Oliver always claim they

      have plans if she or Violet want to switch visitation periods.

      ***

            For example, on one weekend there was 10 inches of snow in

      Kentucky, and Oliver and Brittany refused to reschedule Violet’s

      companionship week and because they had “prior plans” to clean

      house that weekend.

(Doc. No. 137). The magistrate’s decision was reviewed and adopted by the trial

court. (Doc. No. 144).


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       {¶34} There is competent, credible evidence supporting the trial court’s

findings. The purpose of the change-in-circumstances test is to “provide stability in

the life of a child” and “‘spare children from a constant tug of war.’” In re Brayden

James, 2007-Ohio-2335, at ¶ 15, quoting Davis, 77 Ohio St.3d at 418. In this case,

the trial court executed the agreed-custody entry in 2012. Less than two years after

that entry, Oliver filed his motion requesting a modification of the prior custody

order. Because the trial court was in the best position to assess the credibility,

attitude, and demeanor of the witnesses, this court will defer to the trial court’s

conclusions when they are supported by competent, credible evidence. In re S.B.,

11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162, ¶ 92 (“It is not this court’s

role to construe the facts de novo and render an independent judgment. We must

defer to the juvenile court’s conclusions where, as here, they are fairly based on the

evidence and record before the court.”), citing Hinton v. Hinton, 4th Dist.

Washington No. 02CA54, 2003-Ohio-2785, at ¶ 14-29.

       {¶35} Contrary to Oliver’s argument on appeal, there is competent, credible

evidence that Oliver and Brittany instigated the communication breakdown. Indeed,

the record reflects an incident in October 2013 in which Brittany became upset

regarding an agreement between Oliver and Emily about visitation, which incited

the communication breakdown between the parties. (See Feb. 24, 2015 Tr. at 14-

15, 47-48, 91); (June 5, 2015 Tr. at 96-99). Shortly after that incident, Oliver filed


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his motion requesting the custody modification in January 2014. (Id. at 99). Emily

testified that she was hopeful that the parties could resolve the issues through

mediation; however, Oliver and Brittany cancelled a scheduled mediation session

between the parties. (Id. at 116). A party cannot rush into court and request a

change in custody based on a change in circumstance resulting from a situation of

their own creation. In re S.B. at ¶ 89 (“A juvenile court does not abuse its discretion

in failing to find a change in circumstances where the moving party has helped to

create or is responsible for the allegedly changed circumstances on which the

motion to change custody is based.”). Accordingly, we conclude that the trial court

did not abuse its discretion by concluding that no change in circumstances occurred

based on a communication breakdown between the parties. See Kager v. Kager, 5th

Dist. Stark No. 2001CA00316, 2002 WL 1343266, *2 (June 17, 2002) (concluding

that the trial court did not abuse its discretion by concluding that no change had

occurred in the circumstances of the children despite the father-appellant’s

“examples of a general breakdown of communication between the parents”).

       {¶36} Yet, Oliver points to portions of Emily’s testimony that he argues

demonstrates a breakdown in communication between the parties and their inability

to communicate and cooperate warranting a modification. However, when read in

context, the portions of the record to which Oliver directs us do not reflect conduct

constituting a change in circumstances. Indeed, the portions of the record to which


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Oliver directs us reflect the struggle between three parties sharing legal custody of

a minor child—namely, their attempts to schedule vacation and visitation time to

accommodate the schedules of all of the parties. (See June 5, 2015 Tr. at 111, 115,

121, 138, 165). Illustrative of the tenuous situation between the parties is Emily’s

response to her trial counsel’s prompt to “talk a little bit about this go-between

situation you have been put in”:

            Yeah. I, since Brittany came into the relationship, honestly,

       Oliver and Violet, to my knowledge have never really communicated

       the best. I have kind of played the go between, between the two of

       them. I am not saying it’s the greatest position to be put in. But for

       the sake of [M.G.], I have tried to make where I am coming from

       known to both parties. She deserves a relationship with her father.

       She deserves a relationship with her mother. There’s been plenty

       instances [sic] they have not agreed. I have had to make a decision.

       They still not agreed [sic].

            But even as recently as a month ago, I am trying to get questions

       answered that Violet had sent to Oliver. He is not responding. I like,

       a couple of times said, Hey, can you answer this? I would say since

       last year, even air [sic] communication has broke down. So I have

       only been dealing with Oliver. Brittany has not communicated with


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       me at all. But even then, Oliver is not wanting to communicate as

       well. If he does, it’s like, You are threatening me. You are being a

       bully.

            And I am just trying to honestly mediate between them and say

       this is what she is asking for. Can this work out? And it’s just…I

       been [sic] playing mediator for a year.

(Emphasis sic.) (Id. at 115-116). (See also id. at 150-151).

       {¶37} Second, Oliver argues that the trial court’s conclusion that there was

no change in circumstances necessitating a modification of the agreed-custody entry

is against the manifest weight of the evidence because the record reflects that Emily

interfered with or withheld visitation time. Oliver directs us to Emily’s testimony

regarding hiring a babysitter that he argues demonstrates a change in circumstances.

The magistrate found that Emily “began using a babysitter instead of calling [Oliver

and Brittany] for child care duties.” (Doc. No. 137). Emily testified that she hires

a babysitter instead of asking Oliver and Brittany to care for M.G. because Oliver

“is not available during those times,” and it provides M.G. the opportunity to spend

time with Emily’s children, whom Emily considers to be M.G.’s siblings. (June 5,

2015 Tr. at 165). Notwithstanding Oliver’s argument that Emily has interfered with

or withheld visitation time, we conclude that the record demonstrates that Emily

encouraged M.G.’s relationship with Oliver. See McLaughlin, 2007-Ohio-1087, at


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¶ 35 (concluding that there was “insufficient evidence to find a change of

circumstances based upon interference with visitation, interference with

communication, or a parent negatively discussing the nonresidential parent”).

Indeed, Emily testified, for instance, that she does not prohibit M.G. from

communicating with Oliver and Brittany and that she tries to accommodate

additional visitation time between Oliver and M.G. (See id. at 140-142, 146, 149-

150, 164).

      {¶38} Third, Oliver argues that the trial court’s conclusion that there was no

change in circumstances necessitating a modification of the agreed-custody entry is

against the manifest weight of the evidence because the record reflects that Emily

“recanted” the parties’ “oral agreement” to transition M.G. “back into her parents’

custody.” (Appellant’s Brief at 16). Based on our discussion in Oliver’s first and

second assignments of error regarding the shared-custody agreement executed by

the parties, which was executed by the trial court not fewer than three times,

including the agreed-custody entry issued in 2012, Oliver’s argument is erroneous.

Oliver agreed to the 2012 entry reflecting the shared-custody agreement between

the parties because it was convenient for him at the time. Advancing his argument

about an oral agreement between the parties now is not only self-serving but also

flies in the face of the intent of a judicially recognized shared-custody agreement

and the purpose of the change-in-circumstances test under R.C. 3109.04(E), which,


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as we noted above, is to “provide stability in the life of a child” and “‘spare children

from a constant tug of war.’” In re Brayden James, 2007-Ohio-2335, at ¶ 15,

quoting Davis, 77 Ohio St.3d at 418.

       {¶39} For these reasons, we conclude that the trial court’s conclusion that

there was no change in circumstances necessitating a custody modification is

supported by competent, credible evidence and is not against the manifest weight of

the evidence. As such, the trial court did not abuse its discretion by concluding

there was no change in circumstances necessitating a custody modification.

McLaughlin, 2007-Ohio-1087, at ¶ 38. (“After reviewing the entire record, we hold

that the trial court did not abuse its discretion in finding no change of circumstances

had occurred. The facts and circumstances in this case, even when considered

together, do not constitute a change of circumstances to warrant [a modification of

the custody order.”).

       {¶40} Because the trial court concluded that there was no change in

circumstances, it did not need to inquire into M.G.’s best interest. Kenney v.

Kenney, 12th Dist. Warren No. CA2003-07-078, 2004-Ohio-3912, ¶ 22, citing

Bauer v. Bauer, 12th Dist. Clermont No. CA2002-10-083, 2003-Ohio-2552, ¶ 27

and Wilburn v. Wilburn, 144 Ohio App.3d 279, 288 (2d Dist.2001). See also

Eatherton, 2012-Ohio-5229, at ¶ 39 (noting that the change-in-circumstances

“finding should be made prior to weighing the child’s best interest”). As such, we


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decline to address any argument Oliver advances regarding M.G.’s best interest

under his third assignment of error. Oliver’s third assignment of error is overruled.

       {¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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