[Cite as Mansbery v. Bach, 2011-Ohio-6627.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96471



                                  DAVID MANSBERY
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                    REBECCA BACH

                                                      DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                  Domestic Relations Division
                                     Case No. D-324151

        BEFORE:          Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     December 22, 2011
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ATTORNEY FOR APPELLANT

Anne C. Fantelli
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Andrew A. Zashin
Christopher R. Reynolds
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} Defendant-appellant, Rebecca Bach, appeals the trial court’s judgment

dismissing her motion to modify parental rights and responsibilities. She raises two

assignments of error for our review:

       {¶ 2} “[1.] The trial court erred and abused its discretion by dismissing the

appellant’s motion to modify parental rights and responsibilities.

       {¶ 3} “[2.] The trial court erred and abused its discretion by dismissing the

appellant’s motion to modify parental rights and responsibilities without holding a

hearing.”
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       {¶ 4} Finding no merit to her appeal, we affirm.

                          Procedural History and Factual Background

       {¶ 5} Bach and plaintiff-appellee, David Mansbery, were married in August 2005,

in Phoenix, Arizona.   They had two children born as issue of their marriage — a girl in

October 2006, and a boy in October 2007.         They lived in California after they were

married, but moved to Brecksville, Ohio, in the summer of 2008. In December 2008,

Mansbery filed a complaint for legal separation after Bach “dramatically” returned her

wedding ring to him and told him that she was moving back to California. Mansbery

later amended his complaint for legal separation to a complaint for divorce.

       {¶ 6} After a three-day hearing before a magistrate in September 2009, Mansbery

was awarded temporary parental rights and responsibilities of the parties’ two minor

children. At that time, Bach was living in California, and the magistrate found that Bach

had “no plans to move anywhere else even if to do so would place her closer to the

children.”    Based on the magistrate’s recommendation, the trial court set forth a

temporary visitation schedule where the children would be shuffled back and forth

between Cleveland and California every few weeks, with Mansbery being responsible for

all travel costs.

       {¶ 7} The magistrate held a final seven-day divorce trial on all issues in

December 2009 and January 2010, issuing his decision in April 2010. The magistrate

found that the court’s expert, Dr. Deborah Koricke, Ph.D., opined that Mansbery
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continued to “offer the most stable atmosphere for the children,” but that she would

“consider a shared-parenting recommendation if [Bach] would commit to establishing an

Ohio residence near the children.”     Dr. Koricke further stated that Bach’s “decision to

live in California, farther from her children, was a questionable personal choice.”       The

magistrate recommended that Mansbery be named the children’s residential parent, and

that visitation continue in the final order as it was set forth in the temporary order. In its

“findings   and   recommendations       regarding   allocation   of   parental   rights   and

responsibilities,” the magistrate stated that “if [Bach] chooses to reside near the children,

this should constitute a change in circumstances that would weigh heavily towards the

adoption of a shared parenting arrangement.”

       {¶ 8} On May 17, 2010, the parties entered into an agreed judgment entry that

incorporated the magistrate’s decision as the court’s own findings and conclusions of law,

and the trial court entered judgment accordingly.      The trial court granted the parties a

divorce on the grounds of incompatibility and designated Mansbery as the residential

parent and legal custodian of the children.         It set forth a visitation schedule in

accordance with the court’s October 2009 temporary orders.       It further ordered that Bach

was entitled to a lump sum of $920,000 pursuant to the parties’ prenuptial agreement and

ordered that Mansbery be responsible for $75,000 of Bach’s attorney fees.

       {¶ 9} On August 26, 2010, Bach moved the court to modify parental rights and

responsibilities, as well as attorney fees. Through her motion, she informed the court
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there had been a change in circumstances because she had moved from California to Ohio

on July 31, and was building a home in Seven Hills, Ohio. She cited to the magistrate’s

decision where he noted that if she moved to Ohio, that factor “would weigh heavily

towards the adoption of a shared parenting agreement.”     She further requested that her

parenting time be significantly increased and averred that a modification would be in the

children’s best interest because she was unemployed, and therefore, would be able to care

for the children on a daily basis.

       {¶ 10} Mansbery opposed Bach’s motion and moved to dismiss it, claiming that

Bach failed to meet the requisite standard under R.C. 3109.04(E)(1)(a), namely, that there

had been a change in the children’s circumstances or his as the children’s residential

parent. In her brief opposing Mansbery’s motion to dismiss, Bach disagreed, asserting

that there had been a change in the children’s circumstances because her move to Ohio

would provide the children with greater access to her; she would have more involvement

in their education and would be available to care for them when Mansbery could not.

       {¶ 11} In October 2010, the parties entered into an agreed interim visitation

schedule where Bach had increased visitation with the children during the pendency of

her motion before the court.

       {¶ 12} A magistrate issued a decision on Bach’s motion to modify parental rights

and responsibilities in December 2010, recommending that it be dismissed.             The

magistrate found that all of Bach’s stated reasons for a change in circumstances “were
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brought about by her decision to move from California to [Ohio]”; they were “not in the

children’s and not in the plaintiff’s.”   The magistrate stated, “there is no question that

the defendant’s sole basis for seeking a modification of parental rights and

responsibilities is the change in her circumstances, not a change in either the

circumstances of the children or the plaintiff who is the residential parent and legal

custodian of these children.”   The magistrate concluded that Bach’s stated reasons “do

not meet the criteria the Legislature mandated in Section 3109.04(E)(1)(a) as a condition

precedent to modifying the present custodial scheme.”

       {¶ 13} As for the magistrate’s previous observance that if Bach moved closer to

the children, it “should constitute a change in circumstances that would weigh heavily

toward the adoption of a shared parenting agreement,” the magistrate found that the

language was “extraneous to the specific issue that was before the court at the time and,

therefore, not entitled to any weight whatsoever.”

       {¶ 14} Overruling Bach’s objections to the magistrate’s decision, the trial court

adopted the magistrate’s decision in its entirety, and granted Mansbery’s motion to

dismiss. It is from this judgment that Bach appeals.

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

       {¶ 15} In her first assignment of error, Bach argues that the trial court erred when

it adopted the magistrate’s decision recommending that it dismiss Bach’s motion to

modify parental rights and responsibilities.         The magistrate relied upon R.C.
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3109.04(E)(1)(a) to recommend dismissing Bach’s motion, finding that Bach’s relocation

to Ohio was merely a change in her circumstances and not a change in the children’s or

Mansbery’s circumstances. This statute provides:

       {¶ 16} “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:

       {¶ 17} “(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.

       {¶ 18} “(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.

       {¶ 19} “(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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       {¶ 20} A change in circumstances is a threshold requirement intended to provide

some stability to the custodial status of the child. See In re James, 113 Ohio St.3d 420,

2007-Ohio-2335, 866 N.E.2d 467. To warrant an inquiry into whether the best interest

of a child would be served by a change of parental rights and responsibilities, the court

need not find that a “substantial change has occurred,” but the “change must be a change

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

415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

       {¶ 21} “The clear intent of that statute 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 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 (1982), 3 Ohio App.3d 412, 416, 445

N.E.2d 1153.

                                       Standard of Review

       {¶ 22} “[I]n 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.” Id. at 416-417. Accordingly, the

trial court’s determination on such issue should not be disturbed, absent an abuse of

discretion. Id.
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                                          “Agreement”

       {¶ 23} Bach first argues that the trial court erred when it adopted the magistrate’s

decision because “the parties entered into an Agreed Judgment Entry of Divorce which

contained an express provision that [Bach’s] relocation to Ohio should constitute a

change in circumstances that would weigh heavily towards the adoption of a shared

parenting arrangement.”    She maintains that “the parties’ agreement as memorialized in

the Agreed Judgment Entry of Divorce controls the issue[,]” not R.C. 3109.04(E)(1)(a)

because “under Ohio law, it is established that when parties make mutual promises which

are integrated into an unambiguous written contract, courts will give effect to the parties’

express intentions.”

       {¶ 24} We disagree.     Although the parties’ divorce decree is titled “Agreed

Judgment Entry of Divorce,” this court cannot determine what, after a seven-day, highly

contested trial, if anything, the parties agreed to. And even if there was some provision

the parties agreed to — that we cannot determine from the record — the trial court still

made clear in the “Agreed Judgment Entry of Divorce” that the magistrate’s decision was

incorporated into the agreed judgment entry “as the court’s own findings.”

       {¶ 25} Further, the magistrate’s finding that Bach relies upon so heavily here (that

if she “chooses to reside near the children, this should constitute a change in

circumstances that would weigh heavily towards the adoption of a shared parenting

arrangement”) was just that — a finding.          Although the trial court adopted the
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magistrate’s decision in its entirety, it did not order, adjudge, or decree the relocation

provision into the court’s order. And for good reason — it would have erred if it had

done so (as we discuss in the following section).

          {¶ 26} Therefore, we must determine under R.C. 3109.04(E)(1)(a) if the trial court

abused its discretion when it dismissed Bach’s motion to modify parental rights and

responsibilities after finding that Bach’s relocation to Ohio was merely a change in her

circumstances and not a change in the children’s or Mansbery’s circumstances.

                                                Analysis

          {¶ 27} In support of its decision dismissing Bach’s motion, the trial court relied on

a Second District case, Buckingham v. Buckingham, 2d Dist. No. 1626, 2004-Ohio-1942.

In Buckingham, like the instant case, the father had been named the child’s residential

parent.     The father lived in Ohio and the mother lived in Arizona.        When the mother

moved to Ohio, she filed a motion to modify visitation, but later amended it to a motion

for “increased companionship time.”         Id. at ¶8.   The trial court modified the father’s

primary parental rights and responsibilities to a shared parenting plan, with equal

parenting time to the mother and father, finding that it was in the child’s best interest.

          {¶ 28} The Second District reversed, finding that the trial court erred in doing so.

The appellate court explained that in modifying parental rights and responsibilities, the

trial court needed to first determine if there had been a “change of substance” in the

circumstances of the child or the residential parent.          Id. at ¶19.   Since the “only
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change” at issue was the mother’s move from Arizona to Ohio, the threshold

determination had not been met.      Id. at ¶20.   The Second District noted that “the [trial]

court did not make a finding that either [the child’s] or [the father’s] circumstances had

changed,” and explained that the mother’s move was “not a pertinent [change] in

circumstance for purposes of R.C. 3109.04(E)(1).”       Id. at ¶19, 21.

       {¶ 29} This court agrees with the Second District’s decision in Buckingham.

Thus, we also agree with the trial court that Bach’s move to Ohio was a change in her

circumstances, not a change in the children’s or Mansbery’s.      Accordingly, the trial court

did not abuse its discretion when it dismissed Bach’s motion to modify parental rights and

responsibilities.

       {¶ 30} Bach’s first assignment of error is overruled.

                                        Evidentiary Hearing

       {¶ 31} In her second assignment of error, Bach maintains the trial court erred by

dismissing her motion without a hearing. We disagree.

       {¶ 32} R.C. 3109.04(A) provides that “in any proceeding pertaining to the

allocation of parental rights and responsibilities for the care of a child, upon hearing the

testimony of either or both parents *** the court shall allocate the parental rights and

responsibilities for the care of the minor children of the marriage.”       Thus, this statute

clearly indicates that the trial court will hold an evidentiary hearing on the matter.
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       {¶ 33} Nonetheless, we conclude that an evidentiary hearing was not required in

this case.   As the Fourth District explained in In re Schwendeman, 4th Dist. No.

06CA33, 2007-Ohio-815, ¶26:

       {¶ 34} “The trial court need not hold a hearing every time a parent moves for

modification of custody. Where the motion does not include allegations that meet the

threshold legal requirements that permit the court to consider the modification, the

allocation of parental rights and responsibilities is not truly ‘contested,’ and the hearing

requirement *** is not triggered.       See, e.g., Wysong v. Wysong, 12th Dist. No.

CA2001-06-011, 2002-Ohio-562 (‘Because appellant failed to allege a change of

circumstances which would permit a modification of parental rights and responsibilities

under R.C. 3109.04, we find that the trial court did not abuse its discretion by finding no

change of circumstances and denying an evidentiary hearing on the matter.’); see also

Bebout v. Vittling (Nov. 19, 2000), 5th Dist. No. 2001 CA00169 (finding no abuse of

discretion in denying an evidentiary hearing when trial court found that the movant’s

allegations were similar to those litigated during the previous custody hearings).”

       {¶ 35} Accordingly, we find no error on the part of the trial court for not holding

an evidentiary hearing since Bach did not meet the threshold requirement of change in

circumstances.

       {¶ 36} Bach’s second assignment of error is overruled.

       Judgment affirmed.
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      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
