[Cite as Vent v. Vent, 2012-Ohio-5946.]




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




MICHELLE L. VENT
NKA MICHELLE L. HICKS,                                    CASE NO. 16-12-05

   PLAINTIFF-APPELLANT,

  v.

WILLIAM J. VENT,                                          OPINION

   DEFENDANT-APPELLEE.



                Appeal from Wyandot County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 03-DR-0133

                                      Judgment Affirmed

                          Date of Decision: December 17, 2012



APPEARANCES:

        Kelle M. Saull for Appellant

        Agnes A. Pfeifer for Appellee
Case No. 16-12-05



WILLAMOWSKI, J.

       {¶1} Plaintiff-Appellant, Michelle Vent, nka Michelle Hicks (hereinafter,

“Mother”), appeals the judgment of the Wyandot County Court of Common Pleas,

Domestic Relations Division, denying her motion for reallocation of parental

rights and responsibilities in which she claimed that it was no longer in the best

interest of the children that they remain in the custody of Defendant-Appellee,

William Vent (“Father”). On appeal, Mother contends that the trial court erred

when it found that there was no change of circumstances warranting a

modification of custody; when it found that it was not in the best interest of the

children to modify custody; and when it did not increase Mother’s parenting time

or allow her the right of first refusal to spend time with the children. For the

reasons set forth below, the judgment is affirmed.

       {¶2} The parties were married in 1995, and two sons were born as issue of

their marriage, Wesley in 1999 and Mason in 2002. The parties were divorced on

March 3, 2004, and Mother was named the residential parent of the boys.

       {¶3} In 2009, when Wesley and Mason were 10 and 7 years old, Father

filed a motion to modify parental rights and responsibilities, requesting that he be

named the residential parent. The case proceeded to trial but, at its conclusion, the

parties informed the court that they had reached a mutual agreement. A consent

judgment entry was filed on July 21, 2009, agreeing that Father would be the


                                         -2-
Case No. 16-12-05


residential parent and legal custodian, with Mother having companionship every

other weekend, every Wednesday after school until 7:30 p.m., and alternating

weeks during the summer.

       {¶4} Since that modification, Mother claims that the children’s behavior

and their performance in school have “regressed.” On April 1, 2011, Mother filed

a motion to reallocate parental rights and responsibilities, asking that she again be

named the residential parent.

       {¶5} Mother claims that both boys’ grades have dropped considerably and

that they do not get appropriate help with their homework from Father. She

contends that they have exhibited numerous behavior problems, resulting in

detentions, visits to the vice principal’s office, and that they are considered

“disruptive” by teachers and the school bus driver.         Mother also expresses

concerns about the boys’ health and hygiene, claiming that they are not always

clean and that they have suffered from ringworm, acne, and athlete’s foot while

under their Father’s care.

       {¶6} Mother also believes that the children’s schedule contributes to their

problems in that they do not get enough sleep because they get up at 5:30 in the

morning to go to their grandmother’s house to catch the school bus. After school,

the children also go to their grandmother’s home with other cousins. She contends

that they “bounce from family member to family member” and are watched by

aunts or other extended family members. Mother believes that she can better

                                         -3-
Case No. 16-12-05


provide the stability and educational supervision that the children need because

she is a certified teacher. She only works part-time, as a substitute teacher, so she

claims she has more time and is better able to supervise the children.

          {¶7} Father maintains that the boys are happy, healthy and well-cared for.

He claims that they are doing all right in school and that the drop in their grades is

due to a difference between the grading scales used by the different school

systems and because the work has gotten harder now that the boys are in higher

grades.     He claims that the behavioral issues complained of by Mother are

exaggerated and blown out of proportion, and that the children are merely typical

boys who are generally well-behaved, well-liked, and demonstrate respect for

others.     The boys are active in sports, and Father is the coach of Wesley’s

basketball team.      The medical issues were common ailments that were not the

result of any neglect and they were appropriately treated. Father contends that the

boys live a typical lifestyle of children who live on a farm; they have farm animals

that they care for at their grandmother’s home; they are assigned daily chores;

they’re involved in sports and 4-H; and they have a great relationship with their

cousins and many extended family members, who all live nearby.

          {¶8} Louanne Hufford, who had served as CASA guardian ad litem

(“GAL”) for these children on two prior occasions, was appointed as GAL. The

trial court also granted Mother’s motion requesting the appointment of Randy



                                          -4-
Case No. 16-12-05


Hoffman as an attorney guardian ad litem (also, “GAL”). Both GALs submitted

reports to the trial court

       {¶9} A three-day trial was held before the court on March 6, 7, and 8, 2012.

The trial court heard testimony from Mother and Father; several of the children’s

grandparents, aunts, and uncles, including Father’s sister-in-law, Laurie Vent, who

was the principal of Mason’s school; the school’s head basketball coach; Mason’s

2nd grade and 4th grade teachers; Wesley’s 7th grade math, reading, and history

teachers; the assistant principal; the school guidance counselor; another counselor

who had been meeting with Mason; the school bus driver; and both GALs.

       {¶10} Ms. Hufford’s GAL investigations and report were very extensive

and detailed and concluded that “Wesley and Mason Vent are two well-loved

children by not only their parents but by relatives and friends as well, * * * [and

that the parents] “have raised two very bright, handsome, healthy, well respected

young men.” (Defendant’s Ex. V) Ms. Hufford noted that the children loved and

wanted to spend time with both parents, and that both parents were doing a good

job in raising the boys, even though they had different parenting styles. Ms.

Hufford strongly suggested that the parents try to work together more and improve

their communication so that the children could “have the best of the two worlds.”

In conclusion, she recommended that Father remain the residential parent. (Id.)

       {¶11} Mr. Hoffman’s GAL report was more abbreviated, and did not

recommend placement with one parent over the other. His report stated:

                                        -5-
Case No. 16-12-05


       It is unfortunate that two parents as involved in their children’s lives
       would be in the position of one “winning” and one “losing.” It is
       also unfortunate that two boys are so stressed at being in the middle
       of a battle between two parents of different ideals and approaches.

(Plaintiff’s Ex. 30) When questioned at trial, Mr. Hoffman stated that he believed

that, if the trial court found there had been a change in circumstances, it would be

in the best interests of the children to live with Mother, given her teacher training,

part-time work schedule, and the program she was following. (Tr. 612-613)

       {¶12} The trial court also interviewed the children in chambers

individually. Wesley and Mason were 13 and 10 years old respectively at the time

of the trial and the court found that both of the boys were competent and could

express a preference as to their residential parent. The trial court reported that:

       Each was adamant about remaining in the custody of their father. It
       is noted that each boy relayed the same sentiment to each of the
       Guardians Ad Litem * * *.

(3/21/12 J.E., p. 2)

       {¶13} After considering the extensive amount of testimony and evidence,

the trial court issued its opinion, giving a detailed analysis showing its

consideration of all of the evidence. The trial court found that Mother failed to

show that a change of circumstances of sufficient significance existed to modify

the designation of residential parent and overruled Mother’s motion for a change

of custody. And, although noting that it was not necessary to do so, the trial court




                                          -6-
Case No. 16-12-05


also found that it would not be in the best interests of the children to modify the

current residential parent status.

       The children are well liked, well-loved and happy, but for these
       proceedings. They are entrenched in a loving and supportive
       extended family. In addition to sports, the children are involved in
       4-H and very much enjoy this activity. They have responsibilities
       for animals that are kept at their grandmother’s home. At
       grandmother’s home they also have the opportunity to meet with
       many cousins and engage in activities such as walking trails,
       bicycling, camping, and riding in the tractor with dad. They do not
       want for food, clothing or attention. Father coaches his sons and
       Mother appears at events and cheers for her children. The biggest
       negative factor in these children’s lives at this point, is the fact that
       their parents refuse to communicate with one another, particularly
       when it involves the interest of their children.

(3/21/12 J.E., p. 8)

       {¶14} It is from this judgment that Mother now appeals, raising the

following three assignments of error for our review.

                             First Assignment of Error

       The Court’s finding that there was no change of circumstances
       was contrary to law and against the manifest weight of evidence.

                            Second Assignment of Error

       The Court’s finding that it was not in the best interest of the
       children to reallocate parental rights and responsibilities was
       contrary to law and against the manifest weight of evidence.

                            Third Assignment of Error

       The Court erred by not increasing [Mother’s] parenting time
       and/or allowing for a first right of refusal and same was
       contrary to law and against the manifest weight of evidence.


                                         -7-
Case No. 16-12-05


       {¶15} The modification of parental rights and responsibilities is controlled

by R.C. 3109.04(E). This statute creates a rebuttable presumption in favor of

retaining the residential parent. R.C. 3109.04(E)(1)(a); Rohrbaugh v. Rohrbaugh,

136 Ohio App.3d 599, 604 (7th Dist.2000). Therefore, a court shall not modify a

parenting decree allocating parental rights unless it finds that, based on facts that

have arisen since the decree, there has been a change in circumstances of the child

or the child’s residential parent and modification of the decree is necessary to

serve the child’s best interest. R.C. 3109.04(E)(1)(a). Additionally, the court

must find that one of the factors listed in R.C. 3109.04(E)(1)(a)(i), (ii), and (iii)

applies. R.C. 3109.04(F) provides a non-exclusive list of relevant factors to be

utilized in helping to determine what would be in a child’s best interest.

       {¶16} Custody issues are some of the most difficult decisions a trial judge

must make. Therefore, those decisions rest within the sound discretion of the trial

court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v.

Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of

custody is subject to reversal only upon a showing of an abuse of that discretion.

Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). 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. Bruce v. Bruce, 3d Dist. No.

9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–

Ohio–278, ¶ 17–18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.

                                         -8-
Case No. 16-12-05


“A reviewing court will not overturn a custody determination unless the trial court

has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v.

Pater, 63 Ohio St.3d 393 (1992).

       {¶17} The reason for this standard of review is that the trial judge is in the

best position to view the demeanor, attitude, and credibility of each witness and to

weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially

true in a child custody case, since there may be much that is evident in the parties’

demeanor and attitude that does not translate well to the record. Id. at 419.

       [I]t is inappropriate in most cases for a court of appeals to
       independently weigh evidence and grant a change of custody. The
       discretion which a trial court enjoys in custody matters should be
       accorded the utmost respect, given the nature of the proceeding and
       the impact the court’s determination will have on the lives of the
       parties concerned. The knowledge a trial court gains through
       observing the witnesses and the parties in a custody proceeding
       cannot be conveyed to a reviewing court by a printed record. * * *

(Citations omitted.) Miller, 37 Ohio St.3d at 74.

       {¶18} In applying an abuse of discretion standard, a reviewing court is not

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No.

10–10–10, 2010–Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128,

(1989). When reviewing a change of child custody proceedings, an appellate court

should be guided by the presumption that trial court’s findings were correct.

Miller at 74.




                                          -9-
Case No. 16-12-05


       {¶19} In her first assignment of error, Mother claims that the trial court’s

finding that there was no change of circumstances was contrary to law and against

the manifest weight of evidence. She argues that there was considerable evidence

that there has been a significant change of circumstances concerning the children

in that their grades had deteriorated, they were exhibiting behavioral problems,

and their schedule deprived them of sleep and stability.

       {¶20} In order for a trial court to modify a prior allocation of parental rights

and responsibilities, it must make a threshold finding that a change in

circumstances has occurred, and, if so, it must then determine that the

modification is in the best interest of the child. R.C. 3109.04(E)(1)(a); Wooten v.

Schwaderer, 3d Dist. No. 14-08-13, 2008-Ohio-3221, ¶3. The statute’s language

does not require a “substantial” change in order to warrant a change of custody,

but “the change must be a change of substance, not a slight or inconsequential

change.” Davis, 77 Ohio St.3d at 418; LaBute v. LaBute, 179 Ohio App.3d 696,

2008 -Ohio- 6190, ¶ 7 (3d Dist.).

       {¶21} The Ohio Supreme Court has consistently affirmed the reasoning and

intent behind this threshold requirement.

       The requirement that a parent seeking modification of a prior decree
       allocating parental rights and responsibilities show a change of
       circumstances is purposeful: “‘The clear intent of [R.C.
       3109.04(E)(1)(a)] 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 child a “better” environment. The statute is an attempt to

                                         -10-
Case No. 16-12-05


      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.’” Davis v. Flickinger (1997), 77
      Ohio St.3d 415, 418, 674 N.E.2d 1159, quoting Wyss v. Wyss
      (1982), 3 Ohio App.3d 412, 416, 3 OBR 479, 445 N.E.2d 1153.

Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 34.

      {¶22} Mother’s arguments are a classic example of the situation cited

above wherein she believes that she can provide the children with a “better

environment” by providing more competent help with the children’s homework

and establishing what she considers to be a better schedule and a more structured

environment.

      {¶23} On appeal, Mother provided numerous excerpts from the record

indicating that the children’s grades were poor and that the children had

disciplinary problems at school and on the bus. However, all of the examples

cited by Mother were taken out of context, or they were specifically picked to

support her position. Father cited just as many, if not more, examples from the

record where the teachers and others testified that the children were doing well,

that their problems were somewhat typical for boys of their age, and that their

issues were not nearly as problematic as Mother depicted them to be.

      {¶24} For example, the assistant principal testified that Wesley had

received a number of disciplinary referrals during the past two years. (Tr. 334)

However, in reviewing each of them, it turns out that many were for relatively

minor infractions, such as chewing gum, tardiness between classes, and staying in

                                      -11-
Case No. 16-12-05


the restroom too long. (Tr. 335) The assistant principal further testified that

Wesley was a polite child, he was “very respectful,” and that he had chosen

Wesley to be a lunch room helper because Wesley was considered a “quality”

student and was dependable. (Tr. 356-358)        The history teacher testified that

Wesley could sometimes be disruptive, but that it was normal for 7th grade boys

to be disruptive at times. (Tr. 176) And, although the school bus driver had

turned in a “conduct report” for Wesley, she stated that “he’s a typical boy and

they all get rambunctious,” and that she hasn’t had any trouble with him since the

report. (Tr. 204)

       {¶25} While it is important that the parents emphasize the necessity of

following all of the rules and behaving properly, the record certainly does not

indicate that the children are heading down the path to juvenile delinquency. In

fact, most witnesses testified that the children were usually very good, dependable,

trustworthy, friendly, and respectful. There was no evidence in the record that

Father was doing anything improper or that he failed to appropriately discipline

the boys, even though his parenting style and priorities may be different than

Mother’s.

       {¶26} Likewise, Mother’s issues regarding the children’s grades only tell

one side of the situation. While we can understand Mother’s concerns with some

of the poor grades that the boys received in some subjects and their unsatisfactory

homework history, there was also evidence in the record indicating that they had

                                       -12-
Case No. 16-12-05


demonstrated improvement in some areas and that their academic performance

when they were with Mother may not have been significantly different that when

they were with Father. Although it was problematic that the testimony indicated

that the boys were not always working up to their potential, their school

performance did not rise to a level of major concern to the educators who testified

or to the trial court. See Klein v. Botelho, 2d Dist. No. 24393, 2011-Ohio-4165, ¶

33-34 (finding that the children’s purported behavior problems and poor grades

did not constitute a change of circumstances sufficient to justify a change in

custody).   In fact, Mason’s current teacher read from her notes, stating that,

“Mason is a real pleasure to have in class” and that he has really improved in his

reading fluency and in doing his assignments. (Tr. 738)

       {¶27} The children’s teachers further testified that the boys came to school

well-groomed, clean and appropriately dressed. And, the record indicated that

Father made sure that the children were receiving necessary medical and dental

care. The trial court found that “Mother, it seems, is the only individual to have

concerns regarding the children’s hygiene and health and has failed to prove that

these concerns provide the necessary ‘change of circumstances’ requiring the

Court to consider a change of residential parent.” (3/21/12 J.E., p. 4)

       {¶28} Mother acknowledged that there had not been any changes in the

Father’s circumstances since 2009, and that the only changes in circumstances that



                                        -13-
Case No. 16-12-05


she was alleging regarded issues concerning Mason and Wesley.             (Tr. 510)

Mother testified:

       Q.    Wouldn’t you agree today that there’s been no change in
       circumstances regarding [Father] from 2009 forward?

       A.     Just him?

       Q.     Regarding [Father], true.

       A.     Not that I know of.

       Q.    So is it your allegation that the only change of circumstances
       that we’re dealing with regarding this hearing is issues regarding
       both Mason and Wesley?

       A.     Yes.

       ***

       Q.      And, isn’t it true that [Father] has done nothing that you
       didn’t anticipate nor were you aware of insofar as his situation as he
       sits here today?

       A.     Yes.

(Tr. 511)

       {¶29} We do not find that the trial court abused its discretion when it

determined that there was not sufficient evidence in the record to demonstrate a

change of circumstances that would require the trial court to consider changing the

residential parent. The trial court’s detailed decision was thoroughly documented

with references to the record in support of its position. The trial court has been

involved with these parties, and in making decisions concerning the best interest


                                          -14-
Case No. 16-12-05


of these children, since 2003. The trial court was in a superior position to evaluate

the weight of the evidence and judge the credibility, demeanor and motivation of

the various witnesses. See Malone v. Malone, 3d Dist. No. 13-10-39, 2011-Ohio-

2096, ¶ 14. It is not our position to weigh the evidence or substitute our judgment

for that of the trial court. See Miller, 37 Ohio St.3d at 74; Daniels v. Daniels, 3d

Dist. No. 11-08-10, 2009-Ohio-784, ¶ 15.

       {¶30} We find no abuse of discretion by the trial court. Therefore, the first

assignment of error is overruled.

       {¶31} In the second assignment of error, Mother asserts that the trial court’s

statement that it would not be in the best interest of the children to reallocate

parental rights and responsibilities was contrary to law and against the manifest

weight of the evidence. This argument is based on the assumption that there

would be the required preliminary finding of a change of circumstances, as

required by statute. See R.C. 3109.04(E)(1)(a). Having affirmed the trial court’s

threshold decision finding no change in circumstances, there is no need to examine

whether or not a change of custody would be in the children’s best interests.

Mother’s second assignment of error is overruled.

       {¶32} In the third assignment of error, Mother submits that the trial court

erred by not increasing her parenting time with the children and/or allowing for a

first right of refusal to enable her to watch the children when Father is not

available. Mother argues that it would be in the children’s best interest to have

                                        -15-
Case No. 16-12-05


increased parenting time with her, especially when she is available to spend time

with them before and after school, when they are being cared for by other

relatives.

       {¶33} Mother correctly stated that it was not necessary for a court to find

that there has been a change of circumstances in order to modify visitation rights,

citing to Braatz v. Braatz, 85 Ohio St.3d 40, 44-45, 1999-Ohio-203. However, as

also stated in Braatz v. Braatz, “‘visitation’ and ‘custody’ are related but distinct

legal concepts.” Id. at 44. Pursuant to Civ.R. 7(B), all motions are to state with

particularity the grounds and the relief sought.        Mother never requested a

modification of her visitation or to have the first right of refusal. Her only motion

sought sole custody of the children.

       {¶34} Mother claims that many of the factors set forth in R.C. 3109.051 are

applicable to demonstrate that it would be beneficial to the children to have

additional parenting time with her. We do not know what the trial court might

have found concerning R.C. 3109.051 because the issue of modifying visitation

was never before the trial court. However, we do know that the trial court and

both GALs emphatically stated that it would be in the children’s best interest if the

parties would communicate and cooperate more with each other, and if the

children were not repeatedly subjected to contentious court proceedings. Given

the ages of the children, their multiple activities, and their busy schedules, perhaps



                                        -16-
Case No. 16-12-05


this is an area where the parties can implement the recommendations of the trial

court and the GALs, on behalf of their children.

       {¶35} The trial court did not abuse its discretion by not sua sponte

addressing an issue that was never raised. Mother’s third assignment of error is

overruled.

       {¶36} 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.


SHAW, P.J. and ROGERS, J, concur.

/hlo




                                        -17-
