[Cite as Eberly v. Eberly, 2013-Ohio-1650.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

TIMOTHY C. EBERLY                                 JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 2012CA00161
TANJA EBERLY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas Court, Domestic Relations
                                               Division, Case No. 2005DR01212


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 22, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


ROSEMARY G. RUBIN                              L. RAY JONES
The Victorian Professional Building            P.O. Box 592
1435 Market Avenue, North                      Medina, Ohio 44258
Canton, Ohio 44714
Stark County, Case No. 2012CA00161                                                        2

Hoffman, J.


         {¶1}   Defendant-appellant Tanja Eberly ("Mother") appeals the August 9, 2012

Judgment Entry entered by the Stark County Court of Common Pleas, Domestic

Relations Division, which overruled her objections to the magistrate's June 7, 2012

decision, and approved and adopted said decision as order of the court.           Plaintiff-

appellee is Timothy C. Eberly ("Father").

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   The parties were married on January 4, 1994. One child was born as

issue of said union, to wit: Mason (DOB 9/17/01). Throughout the marriage, Mother

visited Germany several times a year for several weeks at a time. On June 18, 2005,

Mason accompanied Mother to Germany to visit Mother’s mother.1 However, Mother

refused to return Mason from this visit.

         {¶3}   Father filed a Complaint for Divorce on September 22, 2005. Mother was

served with the Complaint in Germany. The magistrate issued temporary orders on

November 22, 2005, designating Father as the temporary residential parent and legal

custodian of Mason, and ordering Mother to “immediately return” the child to Stark

County. Mother filed a custody proceeding in Germany. The German trial court found

the United States was the proper forum.

         {¶4}   The trial court scheduled the matter for trial on June 20, 2006. Mother did

not appear for the trial. Via Final Decree of Divorce filed June 29, 2006, the trial court

granted Father a divorce from Mother, and designated Father as the residential parent

and legal custodian of Mason.

1
    Mother has dual citizenship in Germany and the United States.
Stark County, Case No. 2012CA00161                                                          3


      {¶5}   After two years of litigation in Germany, Mother and Mason returned to the

United States in February, 2008. Mother filed a Motion to Modify Allocation of Parental

Rights and Responsibilities/Motion to Designate [Mother] as Residential Parent and

Legal Custodian of Minor Child on April 11, 2008. Father filed a motion to dismiss. The

matter was scheduled for a two day hearing before the magistrate. On August 7, 2008,

Mother filed a notice of voluntary dismissal without prejudice pursuant to Civ. R. 41(A).

      {¶6}   On October 31, 2008, Mother filed a Motion to Modify Allocation of

Parental Rights and Responsibilities/Motion to Designate [Mother] as Residential Parent

and Legal Custodian of Minor Child/Motion for Reappointment of Guardian Ad

Litem/Motion to Establish Parenting Time/Alternative Motion to Modify Parenting

Time/Motion to Require Counseling. Father filed a motion to dismiss. Mother filed a

notice of voluntary dismissal without prejudice pursuant to Civ. R. 41(A) on June 3,

2009. On the same day, the parties entered into an Agreed Judgment Entry, which

established Mother’s parenting time with Mason.

      {¶7}   Mother filed a Motion to Modify Allocation of Parental Rights and

Responsibilities/Motion to Designate [Mother] as Residential Parent and Legal

Custodian of the Parties’ Minor Children on November 9, 2011. Father filed a motion to

dismiss. The magistrate ordered the parties to brief their respective positions on the

issue of change of circumstances.      In her brief, Mother stated the original custody

decision entered on June 29, 2006, had been revoked based upon an agreement the

parties reached in the German litigation in February, 2008. Mother asserted, based

upon this agreement, the current motion to modify should be treated as an initial

custody determination. The magistrate then ordered the parties to brief their respective
Stark County, Case No. 2012CA00161                                                     4


positions on the issue of the 2008 document as it relates to the change of

circumstances issue.

      {¶8}     Via decision filed June 7, 2012, the magistrate found the 2008 agreement

reached by the parties had no legal effect, and the 2006 custody determination

remained in effect. The magistrate noted the 2008 agreement had not been submitted

to or approved by the court, and had not been introduced during the 2009 litigation;

therefore, was barred from consideration by res judicata. The magistrate concluded

Mother had the burden to show a substantial change of circumstances as a threshold

requirement.     Additionally, the magistrate found the child’s maturity, standing alone,

was not a sufficient reason to support a modification. The magistrate also found no

substantial change of circumstances had occurred in either Mason's or Father's lives

which would require the court to move to a best interest determination.

      {¶9}     Mother filed objections to the magistrate's decision. Via Judgment Entry

filed August 9, 2012, the trial court overruled Mother's objections, and approved and

adopted the magistrate's decision as order of the court.

      {¶10} It is from this judgment entry Mother appeals, raising the following

assignment of error:

      {¶11} THE TRIAL COURT ABUSED ITS' DISCRETION ERRED IN ITS'

FINDINGS OF RES JUDICATA; FINDING THAT ELECTION WAS NOT SUFFICIENT

REASON TO SUPPORT CHANGE, WHEN AT NO POINT IN TIME DID APPELLANT

ADVANCE SUCH A SOLITARY THEORY, THEREFORE THE FINDING BY THE TRIAL

COURT, THAT THE "DEFENDANT'S POSITION REGARDING THE ADVANCING AGE

OF THE CHILD, TOGETHER WITH THE STATING OF THE CHILD'S WISHES, IS
Stark County, Case No. 2012CA00161                                                     5


TANTAMOUNT TO THE COURT GRANTING THE CHILD AN ELECTION, WHICH NO

LONGER EXISTS.         THE EVIDENCE DOES NOT MERIT REALLOCATION OF

PARENTAL RIGHTS AND RESPONSIBILITIES;" SUCH WHERE EVIDENTIARY

FINDING IS BASED UPON DIFFERING THE MATERIAL FACTS CONTAINED IN THE

PARTIES MEMORANDUMS.

      {¶12} THE TRIAL COURT ERRED IN NOT CONDUCTING AN IN CAMERA

INTERVIEW AS SUCH IS REQUIRED BY RC 3109.04(B)(1); AND SUMMARILY

RULED, ALTHOUGH THE COURT HAD REQUESTED MEMORANDUMS WHICH

CONTAINED DIFFERENT MATERIAL FACTS.

                                               I

      {¶13} At the core of Mother’s assignment of error is her disagreement with the

trial court’s dismissal of her motion to modify allocation of parental rights.   Mother

argues the trial court erred as a matter of law in finding her June 3, 2009 Civ. R. 41(A)

dismissal without prejudice "made res judicata the issue of whether or not that the

evidence in the case at the time of the instant case would have been one of best

interest, as opposed to a first required finding of change of circumstances." Mother

adds the trial court's finding of res judicata was erroneous because the dismissal was

without prejudice; therefore, the dismissal of her motion to modify on this basis was,

likewise, erroneous.

      {¶14} We agree with the trial court the 2008 agreement was barred from

consideration by res judicata.

      {¶15} Civ. R. 41(A) provides, in relevant part:
Stark County, Case No. 2012CA00161                                                       6


         {¶16} Unless otherwise stated in the notice of dismissal or stipulation, the

dismissal is without prejudice, except that a notice of dismissal operates as an

adjudication upon the merits of any claim that the plaintiff has once dismissed in any

court.

         {¶17} Mother dismissed her first two motions to modify.         Mother’s voluntary

dismissal of the second motion, based upon the same allegations and facts, constituted

a final, valid decision on the merits. Accordingly, the dismissal of the second motion

has res judicata effect as to Appellant’s reliance on the 2008 agreement in support

thereof.

         {¶18} We also find the 2008 agreement which purported to revoke the 2006

custody determination was not binding on the trial court as such document was never

submitted to or approved by the trial court at the time it was entered into. We find such

agreement does not render the trial court’s original custody determination of no

consequence. Accordingly, we hold Mother cannot utilize the 2008 agreement as a

means to circumvent the change of circumstances hurdle.

         {¶19} We now turn to the trial court’s finding Mother failed to meet her burden of

establishing a substantial change of circumstances.

         {¶20} The power of a court to modify an existing custody decree is provided in

R.C. 3109.04(E)(1)(a), which states, in pertinent part:

               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
Stark County, Case No. 2012CA00161                                                       7


      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.

      {¶21} A trial court's decision to modify custody pursuant to this statute will not be

disturbed on appeal absent an abuse of discretion. This standard of review is applied

because it is imperative trial courts are given wide latitude in these cases. Davis v.

Flickinger, 77 Ohio St. 3d 415 (1997).

      {¶22} Mother contends the evidence supported a finding of change of

circumstances requiring further inquiry by the trial court. Mother points to the passage

of time during which Mason experienced significant development as well as the child’s

expressed desire to live with Mother.
Stark County, Case No. 2012CA00161                                                        8


       {¶23} A review of the record reveals Mason returned to the United States in

February, 2008, approximately 2 ½ years after Mother and Mason went to Germany.

Mason was 6 ½ years when he was returned to Father’s custody, and was 10 years old

at the time of the filing of Mother’s most recent motion to modify. We do not find this

passage of time, alone, sufficient to find a change of circumstance. See, e.g., Boone v.

Kaser, 5th Dist. No. 2001AP050050, 2001 WL 1011453 (August 28, 2001). Rather, the

passage of time during a significant developmental portion of a child's life must be

combined with other pertinent factors. Id. We find such factors are not present in the

case sub judice. Mother failed to present evidence of any significant development in

Mason’s life during this time other than his actual aging. Mason had adjusted well to his

school and was doing well academically.        We find the trial court did not abuse its

discretion in finding no change of circumstances existed.

       {¶24} Although Mason did wish to be with Mother, a child's wishes regarding

allocation of parental rights is only one factor in considering the child’s best interest.

However, the trial court did not reach the best interest determination as Mother did not

meet the threshold issue of change of circumstances.

       {¶25} Mother also contends the trial court erred in not conducting an in camera

interview of Mason despite her request for such. Because the trial court never reached

the best interest portion of the hearing, we find the trial court's failure to conduct an in

camera interview was not error given the failure of Appellant to meet the change of

circumstances threshold.
Stark County, Case No. 2012CA00161                                                 9


      {¶26} Mother’s sole assignment of error is overruled. The judgment of the Stark

County Court of Common Pleas, Domestic Relations Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
Stark County, Case No. 2012CA00161                                               10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


TIMOTHY C. EBERLY                         :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
TANJA EBERLY                              :
                                          :
       Defendant-Appellant                :        Case No. 2012CA00161


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs to

Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
