[Cite as Wallace v. Willoughby, 2013-Ohio-524.]




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




WILLIAM WALLACE, IV,

        PLAINTIFF-APPELLANT,                           CASE NO. 17-12-10

        v.

AMBER WILLOUGHBY, NKA
HERRON,                                                OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Shelby County Common Pleas Court
                                 Juvenile Division
                          Trial Court No. 2002 PAT 0002

                      Judgment Reversed and Cause Remanded

                          Date of Decision: February 19, 2013




APPEARANCES:

        Roberta S. Roberts for Appellant

        Jay M. Lopez for Appellee
Case No. 17-12-10


ROGERS, J.

       {¶1} Defendant-Appellant, William Wallace IV (“Wallace”), appeals the

judgment of the Court of Common Pleas of Shelby County, Juvenile Division,

granting custody of William Wallace V (“William”) to Plaintiff-Appellee, Amber

Willoughby nka Herron (“Amber”). On appeal, Wallace contends that the trial

court committed the following errors: (1) the trial court erred when it found that a

change in circumstances occurred with regard to William; (2) the trial court erred

when it found that placing William in Amber’s custody was in his best interest;

and (3) the trial court erred when it did not consider whether the harm likely to be

caused by a change in environment is outweighed by the advantages of the change

of environment to the child. Based on the following, we reverse the trial court’s

judgment.

       {¶2} Amber and Wallace, who never married, had two children together,

William, born in December 1997, and Seth, born in February 1999 (collectively

“the children”). In February 2003, Amber and Wallace filed a joint motion for

shared parenting of the children. In March 2002, the trial court issued a shared

parenting decree.

       {¶3} In March 2003, Amber filed a motion requesting termination of the

shared parenting plan and for designation as residential parent. In November

2003, the trial court issued a judgment entry modifying the parental rights and


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responsibilities, naming Amber as the children’s residential parent and legal

custodian. Subsequently, Amber married Fred Herron (“Herron”). Amber and

Herron have two children together, Levi, born in September 2006, and Roslyn,

born in October 2007.

       {¶4} In January 2010, Wallace filed a “Motion to Reallocate Parental

Rights and Responsibilities, or in the Alternative, Shared Parenting.” In February

2010, the magistrate conducted separate in camera interviews of William and

Seth. Seth, who was 11 years old at the time, expressed a strong preference to

reside with Wallace, whereas William, who was 12 years old at the time, did not

have an opinion on the matter.

       {¶5} In March 2010, the matter proceeded to a final hearing.          Upon

considering the testimony and evidence presented during the final hearing, as well

as the in camera interviews with William and Seth, the magistrate recommended

that Wallace be designated as the children’s residential parent.

       {¶6} In April 2010, Amber filed objections to the magistrate’s decision. In

May 2010, the trial court overruled Amber’s objections and designated Wallace as

the children’s residential parent. Amber subsequently appealed the trial court’s

decision to this court. In June 2011, we overruled Amber’s assignments of error

and affirmed the trial court’s decision. Wallace v. Willoughby, 3d Dist. No. 17-10-

15, 2011-Ohio-3008.


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      {¶7} In July 2011, Amber filed a “Motion to Reallocate Parental Rights and

Responsibilities” requesting that she be designated as the children’s residential

parent. On September 15, 2011, the case was transferred from the magistrate’s

docket to the judge’s docket. On September 28, 2011, the trial court appointed a

Guardian Ad Litem (“GAL”) to represent the children’s interests.

      {¶8} In November 2011, the GAL filed a report and recommendation. The

GAL recommended that Seth remain in Wallace’s custody, per his preference, and

that Amber be granted custody of William. The GAL’s recommendation stated

that it rarely recommends splitting up children into different households, but due

to William’s adamant preference to live with Amber and the ability to craft an

order that would allow the children to be together nearly every evening and

weekend, the GAL felt that it would be appropriate to split the children into

different households.

      {¶9} On February 9, 2012, the matter proceeded to a final hearing. Amber

called, Diane Vorhees (“Vorhees”), the assistant principal at Sidney Middle

School, as her first witness. Vorhees testified that Seth has several disciplinary

issues, but reported no such issues with William.

      {¶10} Next, Amber called Wallace as on cross-examination.          Wallace

testified that William does well in school and is involved in wrestling, football,

and track. Wallace acknowledged that the GAL’s report stated that William felt


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more comfortable with Amber, but testified that William is also comfortable with

him and has exhibited no signs of unhappiness.

          {¶11} Next, Amber testified that she filed the motion to reallocate parental

rights and responsibilities because the children were behaving differently and were

unhappy. Amber testified that since the prior custody decree William has become

“very clingy” with her during visitation, and cries at the conclusion of their

visitation. Hearing Tr., p. 45. In addition to being close with her, Amber testified

that William is also close to Herron. Amber further testified that she had moved to

Sidney in July 2011 to be closer to the children, and currently has a flexible work

schedule which allows her to spend more time with the children.

          {¶12} Amber called Herron as her final witness. Herron, a pastor at the

Ansonia United Methodist Church, testified that he has a good relationship with

the children, that Seth comes with him to church, and that William is very open

with him. Herron also testified that he thought Amber’s sadness over the prior

court decision weighs on the children.

          {¶13} After Herron testified, Amber entered her exhibits into evidence and

rested.

          {¶14} Wallace called Alisha Wallace (“Alisha”), his wife, as his first

witness. Alisha testified that the children have adjusted well to living with her and

Wallace since the prior custody decree, explaining that they are happy and doing


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well in school. Alisha testified that there have been several occasions where

visitation has been rescheduled due to the children’s extracurricular activities.

Alisha further testified that she has never witnessed any conflict during visitation

exchanges, but has noticed that William and Amber become emotional during the

exchanges.

       {¶15} Wallace testified that since the prior custody decree the children have

been happy and are doing well at home and school. Wallace acknowledged that

William and Amber occasionally become emotional during visitation exchanges.

William testified that he believed Amber influenced William’s preference to live

with her. William further testified that he strongly believes that it would be in the

children’s best interest to remain together because they have always resided

together and depend on each other.

       {¶16} After the hearing, the trial court, upon Amber’s request, conducted

separate in camera interviews of William and Seth.

       {¶17} On March 16, 2012, the trial court filed its entry granting Amber’s

motion for custody of William but denying Amber’s motion as it pertained to Seth.

The judgment entry provided, in relevant part, as follows:

       [T]he starting point for the Court is to determine whether or not
       Amber Herron has proven a change of circumstances as to William
       V and Seth. * * *

       In determining whether a change in circumstances has occurred as to
       Seth, the evidence is clear that Seth should continue to reside in the

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      custody of his father. Despite his struggle with school conduct, Seth
      is a happy and healthy child. He is a good student, involved in
      school and community activities and has a good relationship with
      both parents, step-parents and siblings. There is no doubt that Seth’s
      wishes, expressed to the guardian and the Court, to continue to
      reside with his father are self-determined. As such, Amber Herron
      has not succeeded in her burden (as to proving a change of
      circumstances) and no further analysis is necessary as it relates to
      Seth.

      As to William V, the issue is more complex. Previously, William V
      expressed (to the Court) no preference as to the parent with whom he
      wished to reside. However, that has changed and now William V is
      adamant on his wishes to reside with his mother. With his mother’s
      recent relocation to Sidney, the guardian ad litem agrees with
      William V’s wishes, and recommends modification. * * * But
      William V’s wishes, alone, do not constitute a change of
      circumstances to warrant the modification. (See generally, Moyer v.
      Moyer, 1996 Ohio App. LEXIS 5762).

      To this end the Court has examined the totality of the evidence and
      considers the following changes that have occurred and are now part
      of William V’s everyday life:

      His mother has relocated to Sidney;
      He has a significant relationship with Levi and Roslyn, his half
      brother and sister;
      His mothers [sic] flexible work schedule is beneficial to their
      relationship;
      Seth confirmed and supported William V’s wishes * * *; and
      William V’s relationship with his mother is closer now than before.

      These factors, together with William V’s wishes (to reside with his
      mother) convince the Court that a change in circumstances regarding
      William V has occurred. Accordingly, Amber Herron has met her
      burden as to the issue of change of circumstances and further
      analysis regarding modification is necessary. (Docket No. 211, p. 4-
      5).



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      {¶18} It is from this judgment that Wallace files this timely appeal,

presenting the following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED WHEN IT FOUND THAT A
      SUBSTANTIAL CHANGE IN CIRCUMSTANCES HAD
      OCCURRED WHEN THE ONLY CHANGE WAS WILLIAM
      V’S PRIOR NEUTRAL PREFERENCE CHANGED TO A
      PREFERENCE TO LIVE WITH HIS MOTHER.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED WHEN IT HELD IT WAS IN
      THE BEST INTEREST OF WILLIAM V FOR THE MOTHER
      TO BE NAMED RESIDENTIAL PARENT. THE TRIAL
      COURT HAS SEPARATED WILLIAM V FROM HIS
      BROTHER AND HAS CREATED A CONSTANT TUG OF
      WAR BETWEEN THE PARENTS.

                          Assignment of Error No. III

      THE TRIAL COURT ERRED WHEN IT DID NOT
      CONSIDER WHETHER THE HARM LIKELY TO BE
      CAUSED BY A CHANGE IN THE ENVIRONMENT BY A
      CHANGE IN THE RESIDENTIAL PARENT WAS
      OUTWEIGHED BY THE ADVANTAGE OF THE CHANGE
      OF ENVIRONMENT FOR THE PARTIES’ MINOR
      CHILDREN. SPECIFICALLY, THE HARMFUL EFFECTS
      CAUSED BY SEPARATING THE TWO BROTHERS.

                            Assignment of Error No. I

      {¶19} In his first assignment of error, Wallace contends that the trial court

abused its discretion when it found that a change in circumstances had occurred

with respect to William. Specifically, Wallace maintains that the only change that


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has occurred since the prior custody decree is William’s preference to reside with

Amber. Wallace argues that William’s preference alone is insufficient to establish

a change in circumstances. Conversely, Amber contends that the trial court did

not base its finding solely on William’s preference to reside with her, but instead

viewed that preference in light of the totality of the circumstances. As a result,

Amber argues that the trial court did not abuse its discretion when it found that a

change in circumstances had occurred with respect to William. We agree with

Wallace.

      {¶20} Decisions concerning child custody matters rest within the sound

discretion of the trial court.   Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

Custody determinations are some of the most difficult and agonizing decisions a

trial judge must make, and, therefore, appellate courts must grant wide latitude to

their consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418

(1997).    As such, a reviewing court will not reverse a trial court’s decision

regarding child custody absent an abuse of discretion. Masters v. Masters, 69

Ohio St.3d 83, 85 (1994).

      {¶21} A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 17-

18 (2d Dist.), citing Black’s Law Dictionary 11 (8th Ed.2004). When applying the


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abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

       {¶22} R.C. 3109.04(E)(1)(a) authorizes a trial court to modify or terminate

a prior decree allocating parental rights and responsibilities. The statute outlines

what a court must consider in its determination of whether a modification of a

prior custody decree is warranted. Specifically, R.C. 3109.04(E)(1)(a) states the

following regarding modification of a prior custody decree:

       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.

       (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.


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      {¶23} When a trial court is asked to modify a prior custody decree, it must

first determine whether a change in circumstances has occurred with respect to the

child or the residential parent since the prior decree. Wyss v. Wyss, 3 Ohio App.3d

412, 414 (10th Dist. 1982). This finding should be made prior to weighing the

child’s best interest.   The purpose of requiring a finding of a change in

circumstances is to prevent constant relitigation of issues that have already been

determined by the trial court. Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d

Dist. 1994). Therefore, the modification must be based upon some fact that has

arisen since the prior custody decree or was unknown at the time of the prior

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

      {¶24} In reviewing whether the evidence presented in this matter

demonstrates that a change in circumstances has occurred, we are mindful that the

change must be of substance, not slight or inconsequential. Davis, 77 Ohio St.3d

at 418. 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.” McLaughlin v. McLaughlin-

Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-1087, ¶ 16, citing Tolbert v.

McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377, ¶ 31.




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         {¶25} Initially, we note that the trial court did not find that a change in

circumstances occurred with respect to Wallace, the residential parent.1 Indeed,

review of the record reveals that the circumstances surrounding Wallace had not

changed since the prior decree. According to the trial court’s thorough analysis,

the only change in circumstances occurred with respect to William. Therefore, we

must determine whether the trial court abused its discretion when it found that a

change in circumstances occurred with respect to William.

         {¶26} Wallace correctly argues that “[a] child’s wishes regarding custody

standing alone is not enough to constitute a change in circumstances.”

McLaughlin at ¶ 28, citing Moyer v. Moyer, 10th Dist. No. 96APF05-659 (Dec.

17, 1996), citing Butland v. Butland, 10th Dist. No. 95APF09-1151 (June 27,

1996). However, “a change in the child’s wishes and concerns, depending on the

facts and circumstances which prompted the change, may form a sufficient basis

for finding the requisite change in circumstances.” (Emphasis sic.) Id.

         {¶27} In its judgment entry, the trial court correctly acknowledged that

“William’s * * * wishes, alone, do not constitute a change of circumstances to

warrant * * * modification.” (Emphasis sic.) (Docket No. 211, p. 4). Despite this

acknowledgment, the trial court found that a change in circumstances had occurred


1
  We also recognize that a change in circumstances may also occur if the circumstances of either parent
subject to a shared parenting decree change. R.C. 3109.04(E)(1)(a). Such a change in circumstances,
however, cannot be present in this case since the parties were not subject to a shared parenting decree when
Amber filed her motion to reallocate parental rights and responsibilities.

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with respect to William. In so finding, the trial court relied on the following facts:

(1) Amber relocated to Sidney where William resides with Wallace and attends

school; (2) William has a significant relationship with his step-siblings, Levi and

Roslyn; (3) Amber has a flexible work schedule that is beneficial to her and

William’s relationship; (4) Seth confirmed and supported William’s preference;

and (5) William’s relationship with his mother is closer now than before. These

facts, however, do not support the trial court’s finding that a change in

circumstances has occurred with respect to William.

       {¶28} First, the record reveals that the William’s relationship with his step-

siblings, Levi and Roslyn, as well as Seth’s support of William’s preference to live

with Amber is essentially unchanged since the prior decree.           As previously

discussed, a finding that a change in circumstances has occurred must be based

upon some fact or facts that have arisen since the prior custody decree or were

unknown to the trial court at the time of the prior custody decree.              R.C.

3109.04(E)(1)(a). Comparison of the evidence adduced in relation to the prior

decree and the evidence adduced in relation to the present decree reveals that

William’s relationship with Levi and Roslyn has always been close and positive.

       {¶29} As for Seth’s support of William’s preference to live with Amber, a

comparison of the evidence adduced in relation to the prior decree and the

evidence adduced in relation to the present decree reveals that Seth never


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expressed a preference that he and William reside with the same parent. Instead,

the record reveals that Seth has consistently been amenable to William residing

with Amber while he remains with Wallace. Given the foregoing, the trial court’s

reliance on William’s relationship with Levi and Roslyn and Seth’s support of

William’s preference to live with Amber was both unreasonable and contrary to

the dictates of R.C. 3109.04(E)(1)(a).

       {¶30} Next, Amber’s relocation to Sidney and her flexible work schedule

bear no significance in determining whether a change in circumstances has

occurred with respect to William.        A change in the non-residential parent’s

circumstances is generally irrelevant. Jones v. Jones, 4th Dist. No. 06CA25,

2007-Ohio-4255, ¶ 28, citing Morgan v. Morgan, 4th Dist. No. 06CA15, 2006-

Ohio-6615; R.C. 3109.04(E)(1)(a) (specifically limiting a change in circumstances

to situations involving the child, the residential parent, or either parent apart of a

shared parenting decree).     Under the circumstances of this matter, Amber’s

relocation and her flexible work schedule are irrelevant, as these facts provide no

insight into how William’s circumstances have changed. Accordingly, the trial

court’s reliance on Amber’s relocation to Sidney and her flexible work schedule

was both unreasonable and contrary to the dictates of R.C. 3109.04(E)(1)(a).

Barto v. Barto, 3d Dist. No. 5-08-14, 2008-Ohio-5538, ¶ 28 (affirming denial of

transfer of residential parent because “a change of residence of the non-residential


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parent is irrelevant * * * to * * * the change in circumstances requirement.”),

citing Jones, 2007-Ohio-4255, ¶ 29.

      {¶31} In light of the foregoing, the only relevant factor the trial court relied

upon, in addition to William’s preference to reside with Amber, is the close nature

of William’s and Amber’s relationship. The nature of their relationship, however,

is not enough, under the circumstances of this matter, to establish that a change in

circumstances has occurred with respect to William. The record reflects that

William and Amber have always shared a close relationship. Unsurprisingly, their

relationship has developed in the two years since the prior custody decree, which

has resulted in William’s preference to live with Amber.            But, aside from

William’s preference and the close nature of his relationship with Amber,

William’s circumstances are otherwise unchanged. In fact, the record reveals that

William is doing very well with Wallace. As a result, we find that the trial court

abused its discretion when it found that a change in circumstances had occurred

with respect to William.

      {¶32} Accordingly, we sustain Wallace’s first assignment of error.

                           Assignments of Error Nos. II & III

      {¶33} In his second and third assignments of error, Wallace contends that

the trial court erred when it found that it would be in William’s best interest to

reside with Amber and that the harm likely to be caused by designating Amber as


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William’s residential parent is outweighed by the advantages of designating

Amber as William’s residential parent. Since a change in circumstances must

exist before addressing the child’s best interest and balancing the harm and

advantages of a change in the child’s environment, Wallace’s second and third

assignments of error are moot and will not be addressed. R.C. 3109.04(E)(1)(a);

App.R. 12(A)(1)(c).

       {¶34} Having found error in the particulars assigned and argued in

Wallace’s first assignment of error we reverse the trial court’s judgment and

remand the matter for further proceedings consistent with this opinion.

                                                               Judgment Reversed
                                                             And Cause Remanded

WILLAMOWSKI, J., concurs.

/jlr


SHAW, J., DISSENTS

       {¶35} I respectfully dissent from the majority opinion in this case. The trial

court explicitly addressed the change in circumstance issue in its opinion, which

reads as follows:

       Accordingly, the starting point for the Court is to determine
       whether or not Amber Herron has proven a change of
       circumstances as to William V and Seth. * * *

       In determining whether a change in circumstances has occurred
       as to Seth, the evidence is clear that Seth should continue to

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      reside in the custody of his father. Despite his struggle with
      school conduct, Seth is a happy and healthy child. He is a good
      student, involved in school and community activities and has a
      good relationship with both parents, step-parents and siblings.
      There is no doubt that Seth’s wishes, expressed to the guardian
      and the Court, to continue to reside with his father are self-
      determined. As such, Amber Herron has not succeeded in her
      burden (as to proving a change of circumstances) and no further
      analysis is necessary as it relates to Seth.

      As to William V, the issue is more complex. Previously, William
      V expressed (to the court) no preference as to the parent with
      whom he wished to reside. However, that has changed and now
      William V is adamant on his wishes to reside with his mother.
      With his mother’s recent relocation to Sidney, the guardian ad
      litem agrees with William V’s wishes, and recommends
      modification. [Fn omitted]. But William V’s wishes, alone, do
      not constitute a change of circumstances to warrant the
      modification. (See generally, Moyer v. Moyer, 1996 Ohio App.
      LEXIS 5762).

      To this end the Court has examined the totality of the evidence
      and considers the following changes that have occurred and are
      now part of William V’s everyday life:

      -    His mother has relocated to Sidney;
      -    He has a significant relationship with Levi and Roslyn, his
      half brother and sister;
      -    His mothers [sic] flexible work schedule is beneficial to
      their relationship
      -    Seth confirmed and supported William V’s wishes; and
      -    William V’s relationship with his mother is closer now than
      before.

      These factors, together with William V’s wishes (to reside with
      his mother) convince the Court that a change in circumstances
      regarding William V has occurred. Accordingly, Amber Herron
      has met her burden as to the issue of change of circumstances
      and further analysis regarding modification is necessary.


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(Doc. 211).

           {¶36} As the preceding excerpt of the trial court’s judgment entry makes

clear, the trial court plainly acknowledged that William’s wishes alone were not

sufficient to constitute a change in circumstances, which is why the trial court then

went on to carefully consider and list all of the other factors, which taken together

with William's wishes, convinced the court that a change of circumstances had

occurred. In reaching this decision, the trial court conducted a full evidentiary

hearing which included an interview of William in camera.2

           {¶37} Nevertheless, despite the trial court being in the best position to

evaluate the witnesses and weigh the evidence, the majority simply disregards the

evidence cited by the trial court and effectively rules that a change in a parent's

circumstance as a matter of law, does not qualify as a change in the child's

circumstances even where the parent's new circumstances are found by the trial

court to have directly altered the relationships of a child with his siblings or with

that parent. There is no basis in law or in common sense for such a ruling.

           {¶38} As stated by the majority, a change does not “have to be

quantitatively large,” it just “must have a material effect on the child.”

McLaughlin v. McLaughlin-Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-1087, ¶

16, citing In re Tolbert v. Mcdonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377, ¶ 31.



2
    The trial court was also familiar with the case and the parties through the original custody determination.

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Individually, any single factor that the trial court cited might not have alone

supported a finding of changed circumstances. However, when taken together the

factors that the trial court did find to be persuasive are sufficient to establish that

there was nothing arbitrary or unreasonable about the trial court’s decision. It is

not the role of this Court to substitute its judgment for the trial court simply

because members of this Court might have made a different decision.

       {¶39} For the foregoing reasons I would overrule the assignment of error

presented, and address the remaining assignments of error.

/jlr




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