[Cite as Brown v. Brown, 2013-Ohio-3456.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 CHAMPAIGN COUNTY

 HOLLI BROWN                                    :
                                                :     Appellate Case No. 2012-CA-40
         Plaintiff-Appellant                    :
                                                :     Trial Court Case No. 2010-DR-136
 v.                                             :
                                                :
 TROY BROWN                                     :     (Civil Appeal from Common Pleas
                                                :     (Court, Domestic Relations)
         Defendant-Appellee                     :
                                                :
                                            ...........

                                            OPINION

                             Rendered on the 9th day of August, 2013.

                                            ...........

REBEKAH S. NEUHERZ, Atty. Reg. #0072093, Neuherz Law Offices, LLC, 121 South Main
Street, Urbana, Ohio 43078
        Attorney for Plaintiff-Appellant

RAYMOND A. GROGAN, JR., Atty. Reg. #0084002, 165 West Center Street, Suite 201,
Marion, Ohio 43302
      Attorney for Defendant-Appellee

                                            .............

HALL, J.,

       {¶ 1}     Holli Brown, the residential parent of the parties’ children, appeals the

Champaign County Domestic Relations Court’s order that if she moves to South Carolina, Troy

Brown, the appellee, would be designated the residential parent. Finding no error, we affirm.
[Cite as Brown v. Brown, 2013-Ohio-3456.]
                                    I. The Relocation Restriction

          {¶ 2}   The parties, Holli and Troy Brown, are the mother and father of three minor

children. When the parties were divorced in 2011, Mother was designated the children’s

residential parent and Father was given parenting time. In 2012, Mother decided to move from

her current home in Champaign County, Ohio, to South Carolina for a job opportunity and to be

closer to her parents and sister. So she filed a notice of intent to relocate there with the children.

Father objected and filed a motion asking the court to designate him the children’s residential

parent.

          {¶ 3}   In October 2012, after an evidentiary hearing, the trial court issued a written

decision and order. The court found that the children’s best interest is to remain where they are.

Also, in addition to finding that the harm to the children from the move would outweigh the

move’s benefits to them, the court found that the move is a change in circumstances. The court

concluded that these findings satisfy the requirements in the statutory provision that controls

modifications to “a prior decree allocating parental rights and responsibilities,” R.C.

3109.04(E)(1)(a). The court did not designate Father the residential parent but conditioned his

designation on Mother’s move. The court ordered that if Mother moves to South Carolina, it

would change the children’s residential parent to Father, but that if Mother remained in

Champaign County, the prior orders would remain in effect.

          {¶ 4}   Mother appealed.

                                       II. Review of the Order

          {¶ 5}   Mother assigns three errors to the trial court’s order. In the first assignment of

error, she alleges that the court erred in finding that the move is a change in circumstances. In the

second assignment of error, Mother alleges that the court erred in preventing her from moving
                                                                                                     3


with the children. And in the third assignment of error, she alleges that the court erred in finding

that the children’s best interest is to remain where they are.

                           A. The Change-in-Circumstances Finding

         {¶ 6}   R.C. 3109.04(E)(1)(a) pertinently provides that, unless the court finds, among

other things, that a change in the circumstances has occurred, “[t]he court shall not modify a prior

decree allocating parental rights and responsibilities.” The trial court found that the move to

South Carolina is a change in circumstances; Mother challenges this finding; Father defends it.

All assume that R.C. 3109.04(E)(1)(a) applies. We determine that with regard to the specific

nature of the court’s prospective and conditional court order, the statutory limitation does not

apply.

         {¶ 7}   R.C. 3109.04 governs how a court allocates between the parties the rights and

responsibilities for the care of their children. If the court does not order shared parenting, it must

“allocate the parental rights and responsibilities” to one parent and “designate that parent as the

residential parent and the legal custodian” of the children. R.C. 3109.04(A)(1). “[S]tability in the

lives of children” is “a desirable component of their emotional and physical development.” In re

Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 28. So “‘to spare

children from a constant tug of war,’” the statute contains the provision in R.C. 3109.04(E)(1)(a)

that controls changes to the residential parent. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674

N.E.2d 1159 (1997) (saying that this is the provision’s “‘clear intent’”), quoting Wyss v. Wyss, 3

Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982). The provision “is designed to provide

stability in the life of a child,” In re Brayden James at ¶ 15, by “provid[ing] some stability to

the[ir] custodial status,” Davis at 418, quoting Wyss at 416.
                                                                                                                                            4


         {¶ 8}        “R.C. 3109.04(E)(1)(a) controls when a court modifies an order designating the

residential parent and legal custodian.” Fisher v. Hasenjager, 116 Ohio St.3d 53,

2007-Ohio-5589, 876 N.E.2d 546, ¶ 22. The modification provision refers to “a prior decree

allocating parental rights and responsibilities,” R.C. 3109.04(E)(1)(a). A decree is simply a

court’s parenting determination. See Former R.C. 3109.21(D) (defining “decree” as “a parenting

determination contained in a judicial decree or order * * *”). “[T]he residential parent and legal

custodian is the person with the primary allocation of parental rights and responsibilities.” Fisher

at ¶ 23. “When a court designates a residential parent and legal custodian, the court is allocating

parental rights and responsibilities.” Id.1




            1
            And vice versa, “[a]n allocation of parental rights and responsibilities is a designation of the residential parent and legal
 custodian.” Fisher at ¶ 26.
[Cite as Brown v. Brown, 2013-Ohio-3456.]
         {¶ 9}        The trial court here did not modify the order that designates Mother the

children’s residential parent–she remains in this role. The court order states, “[I]f

Plaintiff/Mother moves to South Carolina, Defendant/Father shall be named the legal custodian

and residential parent.* * * If Plaintiff/Mother remains in Champaign County * * * the current

parenting status designation and schedule will remain unchanged * * * *” Journal Entry, October

15, 2012 at 5. The order was in the alternative and conditional. 2 Consequently, R.C.

3109.04(E)(1)(a) does not apply, which means that no change-in-circumstances finding was

necessary. If mother does elect to move to South Carolina, then a change in circumstances would

be confirmed and the order of the court would be supported by a change in circumstances, i.e. an

out-of state move that was determined to have a significant detrimental effect on the children’s

welfare. At present, any error in the court’s change-in-circumstances finding is not grounds for

reversal.

         {¶ 10} The first assignment of error is overruled.

            2
               One could argue that the trial court’s prospective, conditional order is in the nature of an advisory opinion. We have found
 precedent however for a similar order. In Caserta v. Caserta, 5th Dist. Delaware No. 93CAF04015, 1993 WL 544307 (Dec. 13, 1993) the trial
 court ordered that custody of the parties’ minor children would remain with mother, provided that she returned with the children to Ohio
 from Michigan where she had moved. “If [mother] does not reestablish such a residence by September 1, 1993, then the change in custody to
 the [father will] be granted.” Id. Upon review, the court of appeals stated, “Appellant complains only of the prospective nature of the order.
 We find that the statutory language [concerning custody determinations] does not limit the trial court's discretion to make condition
 precedent orders which are prospective in nature.” Id. Moreover, prospective modification of parenting time resulting from a parental move is
 permitted under R.C.3109.051 (G)(1), which provides: “If the residential parent intends to move to a residence other than the residence
 specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the
 order or decree.” Then the court may schedule a hearing “ to determine whether it is in the best interest of the child to revise the parenting
 time schedule.” Indeed the statute does not specify that the court may also entertain a change of custody determination, but, as observed in
 Caserta, it doesn’t prohibit it either. Finally, given the nature of child custody, it is not unreasonable for a court to choose to inform custodial
 parents of the potential impact that a long distance out-of-state move will have on their parenting orders so that they may be guided
 accordingly.
                                                                                                   6


                    B. The Relocation Restriction and Best-Interest Finding

       {¶ 11} In the pretrial Journal Entry filed May 14, 2012 the trial court imposed a

relocation restriction until the hearing on the prospective relocation. The Journal Entry of

October 15, 2012 does not specifically state the same restriction, but the import of the order is of

the same effect. Mother challenges, in the third assignment of error, the best-interest finding and,

in the second assignment of error, the restriction itself.

       {¶ 12} The abuse-of-discretion standard of review applies to the best-interest finding

and to the imposition of the restriction. “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.” Miller v. Miller, 37

Ohio St.3d 71, 74, 523 N.E.2d 846 (1988); see In re Mullen, 129 Ohio St.3d 417,

2011-Ohio-3361, 953 N.E.2d 302, ¶ 14 (saying that “[a] trial court has broad discretion in

proceedings involving the care and custody of children”). Under the abuse-of-discretion standard

in a custody case, “disputes about the facts, the weight accorded the testimony, and the credibility

of witnesses are left to the trial court.” Gartin v. Gartin, 2d Dist. Clark No. 2011-CA-74,

2012-Ohio-2232, ¶ 7, citing Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159

(1997). “The question is whether evidence was presented that, if believed, supports the trial

court’s findings.” Id., citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414 N.E.2d 426 (1980).

       {¶ 13} The trial court here found that the children have close bonds with their immediate

and extended family. The court acknowledged that Mother has been the children’s primary care

giver and that they appear to have a very close bond with her. But the court also found that the

children have a close bond with Father and enjoy spending time with him. Both parents, said the
                                                                                                    7


court, are active in the children’s lives. The court further found that the children have close bonds

with both sets of grandparents, who are also very involved in the children’s lives. And the court

found that both extended families reported good relationships with the children and lots of

involvement.

       {¶ 14} But the trial court considered two factors to have overriding importance. The first

is “how well the children are doing in their current environment.” (Journal Entry, 4 (Oct. 15,

2012)). The court found that they are “doing amazingly well in school,” are involved in lots of

activities, “have lots of friends,” and “love their mom and dad and all of their extended family.”

(Id.). A change in environment, found the court, “could negatively impact their lives.” (Id. at 5).

The second factor is that a move of this distance would have a negative impact on their close

relationship and bond with Father. The court found that “a move of this distance would severely

limit []Father’s parenting time with the children.” (Id.). The court found that “Father is a good

father who loves his children, is extremely involved in their lives, and has a bond with them that

every father should have.” (Id.). And “Father’s children are the most important thing in his life

right now.” (Id.). “Moving his children eleven (11) hours away,” the court found, “would

negatively impact his parenting time with his children, even under the best case scenario.” (Id.).

The court also found that, “except for extended sports seasons because of the warm weather,”

there is not “any additional benefit for the children by moving.” (Id.). The court concluded by

saying, “It is hard to believe they could do any better in school, be involved in any more activities

or have any more friends.” (Id.).

       {¶ 15} Based on the above findings, the trial court found that it is in the children’s best

interest to remain in Champaign County, where they are. The evidence in the record is sufficient
                                                                                                     8


to support this finding, so the finding is not an abuse of the court’s discretion.

       {¶ 16} Mother further contends that the relocation restriction violates her constitutional

right to relocate. A residential parent “‘has a constitutional right to live anywhere in the country

that she chooses and to relocate at will.’” Quint v. Lomakoski, 2d Dist. Greene No. 2005-CA-38,

2005-Ohio-4603, ¶ 19, quoting Valentyne v. Ceccacci, 8th Dist. Cuyahoga No. 83725,

2004-Ohio-4240, ¶ 47. And “[a] court-ordered residency restriction unduly burdens a party’s

constitutional right to travel * * * if it restricts the ability of the party to live where he or she

chooses.” Pennington v. Pennington, 2d Dist. Montgomery No. 19092, 2002 WL 1252173, *4

(June 7, 2002). But “if it is in the child’s best interest to remain in a particular location, the

residential parent’s right to travel is not unduly burdened.” (Citation omitted.) Id. Given that the

trial court here found that it is in the children’s best interest to remain in Champaign County, the

restriction that the court imposed does not violate Mother’s constitutional right to relocate.

       {¶ 17} Lastly, Mother contends that the trial court abused its discretion by imposing the

restriction. We disagree. Given that the children’s best interest is to remain in their current

environment and that Mother intends to take them out of that environment, it appears that the

trial court had no choice but to order as it did. We cannot say that the court abused its discretion

by imposing the restriction. Compare Kelly v. Kelly, 1st Dist. Hamilton No. C-930337, 1994 WL

243961, *2 (June 8, 1994) (holding that “because the record contains a substantial amount of

competent, credible evidence to support the trial court’s decision that it is in the best interests of

the children to remain in the current situation, where they have thrived and have a network

composed of supportive maternal and paternal family members, the trial court did not abuse its

discretion in denying appellant’s motion to remove the children from Ohio to Texas”).
                                                                         9


       {¶ 18} The second and third assignments of error are overruled.

       {¶ 19} The trial court’s order is affirmed.

                                        .............

FAIN, P.J., and DONOVAN, J., concur.


Copies mailed to:

Rebekah S. Neuherz
Raymond A. Grogan, Jr.
Hon. Brett A. Gilbert
