[Cite as Allen v. Allen, 2017-Ohio-505.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


KEVIN ALLEN,                                         :          OPINION

                 Plaintiff-Appellee,                 :
                                                                CASE NO. 2016-T-0015
        - vs -                                       :

DEBRA L. ALLEN,                                      :

                 Defendant-Appellant.                :


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2004 DR 141.

Judgment: Affirmed.


Roklyn M. DePerro Turner, 3685 Stutz Drive, #100, Canfield, OH 44406 (For Plaintiff-
Appellee).

Christopher A. Maruca, The Maruca Law Firm, LLC, 201 E. Commerce St., #316,
Youngstown, OH 44503 (For Defendant-Appellant).

Robert W. Price, Richard G. Zellers & Associates, 3810 Starrs Centre Drive, Canfield,
OH 44406 (Guardian ad Litem).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Deborah Allen1, appeals the denial of her Motion for

the Reallocation of Parental Rights & Responsibilities by the Trumbull County Court of

Common Pleas, Division of Domestic Relations. The issue before this court is whether

ongoing concerns about a minor child’s grades and chronic medical condition

1. Although the pleadings and filings in the case identify the defendant-appellant variously as Debra and
Deborah, the defendant-appellant has signed her name as Deborah and will be referred to accordingly
herein.
necessarily constitute a substantial change in circumstances so as to justify a change in

custody of the child. For the following reasons, we affirm the decision of the court

below.

         {¶2}   Deborah and plaintiff-appellee, Kevin Allen, were married in Warren, Ohio,

on October 23, 2002. One child was born as issue of the marriage: Nicole D. Allen (dob

July 15, 2003).

         {¶3}   On February 2, 2005, Deborah and Kevin were granted a divorce by the

Trumbull County Court of Common Pleas, Division of Domestic Relations.

         {¶4}   On July 10, 2008, Kevin was designated Nicole’s residential parent.

         {¶5}   On September 8, 2014, Deborah filed a Motion for the Reallocation of

Parental Rights & Responsibilities, alleging that “[t]here has been a substantial change

of circumstances since the last Court Order [April 15, 2014] due to current actions of

Plaintiff/Father.”

         {¶6}   On October 15, 2014, Attorney Robert Price was appointed Guardian ad

Litem for Nicole by Agreed Judgment Entry.

         {¶7}   On September 18, 2015, the Report of the Guardian ad Litem was filed

with the domestic relations court.

         {¶8}   On September 24, 2015, a hearing was held before a magistrate at which

Kevin, Deborah, and Price testified. The testimony focused on Nicole’s grades and

medical issues.

         {¶9}   According to a first quarter progress report, Nicole was receiving a D in

math, an F in science, a C in world history, a B in language arts, and an A in performing

arts. Kevin works a shift from 10:30 a.m. to 6:30 p.m. and is not at home when Nicole




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returns from school, although his mother is there. Nicole is tutored by members of

Kevin’s family. Price reported that Nicole’s guidance counselor and principal believe

that she is an average student who should be able to maintain a C average.

       {¶10} Nicole is seen regularly by a pediatrician, a psychiatrist, and a

gastroenterologist.

       {¶11} Nicole was referred to the gastroenterologist in August 2013 by her

pediatrician for periodic constipation.    Since that time, she has been prescribed

MiraLAX for constipation.    Kevin believes the doctor’s order was that the MiraLAX

should be given as needed and reported “no serious problems” with Nicole since April

2014 (the date of the domestic relations court’s last custodial order). Deborah believes

the doctor intended MiraLAX to be administered daily and testified that Nicole was

seriously impacted for several months between November 2014 and February 2015.

       {¶12} Price spoke with Nicole’s pediatrician and confirmed Kevin’s interpretation

of the gastroenterologist’s order. Price also testified that the pediatrician described

Nicole as healthy and not suffering from any severe medical problems. Price reported

that the continuing litigation over her custody causes Nicole great stress which,

according to her doctors, could contribute to her constipation.

       {¶13} Price recommended that Kevin retain custody of Nicole. Price did not

believe that there had been any significant change in circumstances since the previous

custody order, noting that Deborah’s complaints about Kevin’s parenting and Nicole’s

grades and medical issues have remained the same over several years of litigation.

       {¶14} Following the hearing, the magistrate conducted an in camera interview

with Nicole.




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      {¶15} On October 30, 2015, a Magistrate’s Decision was issued finding that “a

change in circumstances has not occurred within the past year which would warrant a

change in custody” and, therefore, Deborah’s Motion for the Reallocation of Parental

Rights & Responsibilities must be denied. The domestic relations court adopted the

Decision on the same date.

      {¶16} On November 12, 2015, Deborah filed Objections to the Magistrate’s

Decision.

      {¶17} On January 15, 2016, Deborah filed Supplemental Objections.

      {¶18} On January 21, 2016, the domestic relations court issued a Judgment

Order, overruling the Objections.

      {¶19} On February 18, 2016, Deborah filed a Notice of Appeal. On appeal, she

raises the following assignment of error:

      {¶20} “[1.] The trial court and the magistrate abused their discretion by failing to

find that a change in circumstances had occurred despite the overwhelming weight of

the evidence which would have then required the court to make a best interest analysis

as to who would have custody of the minor child.”

      {¶21} “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.” R.C. 3109.04(E)(1)(a);

Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, syllabus; In




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re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, paragraph two of the

syllabus (“[t]he provisions of R.C. 3109.04(E)(1)(a) promote stability in the development

of children”).

       {¶22} It has been the consistent position of this court that a change in

circumstances sufficient to warrant the modification of a custody decree “is intended to

denote an event, occurrence, or situation which has a material and adverse effect upon

a child.” (Citation omitted.) Cireddu v. Clough, 11th Dist. Lake No. 2012-L-103, 2013-

Ohio-2042, ¶ 29 (cases cited). Moreover, “the change must be a change of substance,

not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 418,

674 N.E.2d 1159 (1997).

       {¶23} “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.” Id. at paragraph two of the

syllabus. “Such a determination when made by a trial judge should not be disturbed,

absent an abuse of discretion.” Id. at paragraph one of the syllabus.

       {¶24} Deborah argues the domestic relations court erred in not finding a change

in circumstances had occurred. She contends that any of the following circumstances

were sufficient to justify a modification of custody: “(1) that the Minor Child’s grades had

plummeted since the previous order, and the Minor Child was receiving multiple C, D,

and F letter grades in her classes * * *; (2) that new medical issues had appeared

relating to the Minor Child’s internal health; and (3) that since the previous order was

put into place, Appellee/Father’s work hours had changed, resulting in work hours from

10:30 A.M. to 6:30 P.M., and the Minor Child now being released from school three (3)




                                             5
hours before Appellee/Father’s work finishes, as opposed to the night hours he worked

at the time of the previous order * * *.” Appellant’s brief at 8.

        {¶25} On the contrary, none of the circumstances cited by Deborah, either singly

or collectively, were such that the domestic relations court was compelled, in the

exercise of its discretion, to find a change in circumstances sufficient to justify a

modification of custody.

        {¶26} With respect to grades, it is generally held that “a change in a child’s

academic performance does not demonstrate a change in circumstances under R.C.

3109.04(E)(1)(a), unless the change materially affects the child’s overall academic

progress,” i.e., “temporary and minor grade fluctuations ordinarily do not show a change

in circumstances.” Hobbs v. Hobbs, 2015-Ohio-1963, 36 N.E.3d 665, ¶ 56 (4th Dist.).

“[T]he parent seeking to reallocate parental rights and responsibilities must show that a

child’s academic performance has actually changed.”            Id.   “Showing that a child’s

academic progress has remained stagnant or that the child’s grades have always been

‘lackluster’ is not sufficient.” Id.

        {¶27} In the present case, there is no evidence demonstrating that Nicole’s

present grades represent a change in her overall academic progress or what her grades

have been historically.       Rather, the evidence suggests that she has consistently

performed as an average or mediocre student. Moreover, there is no evidence linking

Nicole’s present academic performance with the change in Kevin’s work schedule. The

failure to maintain a C average in all subjects was ascribed to lack of effort on Nicole’s

part.




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      {¶28} With respect to Nicole’s medical issue, the evidence similarly fails to

demonstrate substantive change over time. Nicole’s diagnoses and prescribed regimen

for managing her constipation have not changed since 2013. Kevin’s treatment of her

condition by administering MiraLAX as needed is consistent with her pediatrician’s

recommendation.     Deborah’s estimation of Nicole’s health in light of her medical

condition was not consistent with other evidence in the record. Compare In re S.B.,

11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162, ¶ 88 (no change of

circumstances found where the child’s serious medical condition had largely been

monitored and controlled, despite exacerbating tensions between the parents); Lewis v

Lewis, 12th Dist. Butler No. CA2001-09-209, 2002 WL 517991, 2 (Apr. 8, 2002) (child’s

medical condition is “not a circumstance which has arisen subsequent to the previous

order allocating parental rights and responsibilities, and accordingly does not establish a

change in circumstances,” although “the parties are unable to agree as to the

appropriate way in which to handle this issue”).

      {¶29} Deborah’s sole assignment of error is without merit.

      {¶30} For the foregoing reasons, the denial of Deborah’s Motion for the

Reallocation of Parental Rights & Responsibilities by the Trumbull County Court of

Common Pleas, Division of Domestic Relations, is affirmed. Costs to be taxed against

appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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