[Cite as Scarberry v. Scarberry, 2011-Ohio-2829.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

                                                    :
JULIE SCARBERRY
     Plaintiff-Appellant                            :   C.A. CASE NO. 10-CA-0091

vs.                                                 :   T.C. CASE NO. 02-DR-0740

                                                    :   (Civil Appeal from
KEVIN SCARBERRY                                         Common Pleas Court)
     Defendant-Appellee                             :

                                       . . . . . . . . .

                                          O P I N I O N

                     Rendered on the 10th day of June, 2011.

                                       . . . . . . . . .

Joseph M. Juergens, Atty. Reg. No. 0024912, 39 N. Fountain Avenue,
Springfield, OH 45502
     Attorney for Plaintiff-Appellant

Linda Joanne Cushman, Atty. Reg. No. 0043543, 150 N. Limestone
Street, Suite 206, Springfield, OH 45501
     Attorney for Defendant-Appellee

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a final order modifying an order

entered in a divorce action allocating parental rights and

responsibilities.

        {¶ 2} The marriage of Julie Scarberry Robinson and Kevin

Scarberry was terminated by a decree of divorce on January 9, 2003.
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 Julie1 was designated the residential parent and legal custodian

of the parties’ two minor children.     Kevin was awarded rights of

visitation.

     {¶ 3} On March 10, 2010, Kevin filed a motion to modify the

prior custody order, asking that he be designated the residential

parent and legal custodian of the two children.      After hearings

held over the course of four days, the court granted Kevin’s motion

on August 31, 2010, also awarding Julie rights of visitation.

(Dkt. 81.)    Julie filed a timely notice of appeal from that order.

     FIRST ASSIGNMENT OF ERROR

     {¶ 4} “THE COURT’S RELIANCE ON THE CHANGE OF CIRCUMSTANCES

SUGGESTED BY DEFENDANT TO MODIFY THE CUSTODIAL RESPONSIBILITIES

IN THIS MOTION WERE INSUFFICIENT, AS THEY DID NOT HAVE A CONTINUING

AND MATERIAL ADVERSE EFFECT ON THE CHILDREN, AND THEREFORE WAS

AN ABUSE OF THE COURT’S DISCRETION.”

     {¶ 5} Once parental rights and responsibilities are allocated,

the focus is on stability for the child.   Whaley v. Whaley (1978),

61 Ohio App.2d 111.   To that end, R.C. 3109.04(E)(1)(a) provides:

     {¶ 6} “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


        1
          For clarity and convenience, the parties are identified
   by their first names.
                                                                      3

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:

     {¶ 7} “(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.

     {¶ 8} “(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.

     {¶ 9} “(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.”

     {¶ 10} The prior decree to which R.C. 3109.04(E)(1)(a) refers

is the decree which last designated one of the parents the

residential parent and legal custodian of the parties’ minor child

or   children.     Bell   v.   Bell,   Clark   App.   No.    94DR0986,
                                                                    4

2007-Ohio-6347, ¶33.    The prior decree in the present case is the

January 9, 2003 decree of divorce.

     {¶ 11} Any change of circumstances must be based on facts that

have arisen since the prior decree or that were unknown to the

court at the time of the prior decree.       Bragg v. Hatfield, 152

Ohio App.3d 174, 2003-Ohio-1441.        R.C. 3109.04(E)(1)(a) only

requires a finding of a change of circumstances, not a “substantial”

change.    Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260.

 Nevertheless, “to warrant a change of custody, . . .     The change

must be a change of substance, not a slight or inconsequential

change.”    Id., at 418.

     {¶ 12} The domestic relations court found that since Julie was

designated the residential parent and legal custodian of the two

children in the decree of divorce, the children have experienced

educational difficulties and suffered from neglect of their health

and dental care needs.     The court attributed these problems to

Julie’s inattention arising from her lack of concern and/or her

own health problems and the medications she is prescribed for those

problems.    The court further found that the two children had faired

better in those respects when they were in Kevin’s care, pursuant

to temporary orders of the court entered since the decree of

divorce.

     {¶ 13} A mere passage of time does not constitute a change of
                                                                           5

circumstances for purposes of R.C. 3109.04(E)(1)(a).              However,

circumstances of the child or the child’s residential parent are

not excluded from consideration merely because they were manifested

over the period of time since the prior decree allocating parental

rights and responsibilities.

     {¶ 14} The    changes   in   circumstances   which     the   domestic

relations court found are supported by the record, and their

existence is not disputed by Julie.        Rather, she disputes their

significance or materiality in relation to the best interest of

the two children.      We do not agree.

     {¶ 15} The educational and health difficulties the children

have experienced since the prior decree detract from their positive

growth and development, and constitute a change of substance.

Davis.   The domestic relations court did not abuse its discretion

when it found a change in the circumstances of the two children

sufficient to satisfy R.C. 3109.04(E)(1)(a).

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

     SECOND ASSIGNMENT OF ERROR

     {¶ 17} “THE   COURT’S   DECISION   AND   ORDER   WAS   AN    ABUSE   OF

DISCRETION AS THE EVIDENCE DID NOT SUBSTANTIATE THE FINAL ORDER

OF THE COURT TO MODIFY THE RESIDENTIAL PARENT, AND WAS NOT IN THE

BEST INTEREST OF THE CHILDREN.”

     {¶ 18} In order to rebut the presumption in favor of retaining
                                                                      6

the prior custodial and residential parent, and in addition to

the   required   finding   of   a   change   of   circumstances,   R.C.

3109.04(E)(1)(a) requires a finding by the court that modification

is necessary to serve the best interest of the child or children.

 In making that determination, the court must consider all of the

relevant factors in R.C. 3109.04(F)(1) governing an original

allocation of parental rights and responsibilities.

      {¶ 19} R.C. 3109.04(F)(1)(h) requires consideration of whether

either parent has been convicted of or pleaded guilty to domestic

violence or another criminal offense involving any act that

resulted in the child being an abused or neglected child, “and

whether there is reason to believe that either parent has acted

in a manner resulting in a child being an abused child or neglected

child.”

      {¶ 20} Julie complains that the court ignored the testimony

of two of her witnesses, who implicated Kevin and his current wife

in the sale of illegal drugs, and in the use of illegal drugs and

alcohol in ways that impaired their ability to care for the two

children.   If believed, that evidence could support a finding that,

when they are in Kevin’s care, the children have been “neglected,”

in that they lack adequate parental care because of the faults

or habits of Kevin and his wife.       R.C. 2151.03(A)(2).

      {¶ 21} Julie also complains that the guardian ad litem the court
                                                                     7

appointed ignored that same information in making his report,

though he was made aware of it.

     {¶ 22} Julie further complains that Kevin’s older step-son had

attacked or attempted to attack one of her two children, and that

the court failed to consider that evidence.      Such a matter would

relate to the child’s interaction with a sibling, which the court

must also consider.    R.C. 3109.04(F)(1)(c).

     {¶ 23} Julie is correct that the domestic relations court did

not speak directly to these matters.     However, the court did make

the following finding:

     {¶ 24} “The Court has not been provided with sufficient evidence

to suggest that either of the parties have been convicted of an

act of domestic violence or abuse or neglect of a child or nor

have either of the children been adjudicated to be an abused or

neglected child; nor have either of the parties been convicted

of an act involving a sexually oriented offense, nor has the Court

had reason to believe that either of the parties have acted in

a manner resulting in a child being an abused or neglected child,

except as otherwise set forth herein.”    (Dkt. 81, unnumbered page.)

     {¶ 25} The court further found that, “from the totality of the

credible evidence, that both of the children have a far greater

opportunity   to   develop   healthy   relationships   with   friends,

relatives and others while residing with their father, all of which
                                                                    8

will assist them in their future development.”     (Id. at unnumbered

page.)

     {¶ 26} The court’s findings demonstrate that the court rejected

the evidence of Julie’s several witnesses alleging bad conduct

on the part of Kevin, his wife, and his step-son, for lack of

credibility.    The credibility of witnesses is primarily a matter

for the trial court to decide.       State v. DeHass (1967), 10 Ohio

St.2d 230.     We see no basis to find an abuse of discretion.

     {¶ 27} Finally,   the   court     credited   and   adopted   the

recommendation of the guardian ad litem that Kevin be designated

the residential and custodial parent of the two children.    Whether

the guardian ad litem’s recommendation and report was flawed or

incomplete is a matter to be resolved by the trial court.         The

court apparently resolved that question against the claims of

Julie’s witnesses.

     {¶ 28} The second assignment of error is overruled.

     THIRD ASSIGNMENT OF ERROR

     {¶ 29} “THE DECISION OF THE COURT IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE, AND DOES NOT SUPPORT THE COURT’S DECISION TO MODIFY

THE RESIDENTIAL PARENT OF THE PARTIES’ MINOR CHILDREN.”

     {¶ 30} Having made the change of circumstances and best interest

findings that R.C. 3109.04(E)(1)(a) requires, the court further

found, pursuant to paragraph (iii) of that section, that “the harm
                                                                    9

likely to be caused by a change of environment is outweighed by

the advantages of the change of the environment to the child.”

       {¶ 31} Julie argues that the trial court’s decision is against

the manifest weight of the evidence because the testimony of her

witnesses that Kevin and his wife were involved in the sale of

illegal drugs and the abuse of drugs and alcohol was credible

evidence.    That evidence, if believed, would weigh against the

finding the court made.

       {¶ 32} A judgment is not subject to reversal on the manifest

weight of the evidence standard because there is some evidence

that weighs against it.     Reversal is mandated when there is no

competent, credible evidence that supports the court’s judgment.

 C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d

279.

       {¶ 33} The domestic relations court rejected the testimony of

Julie’s witnesses for lack of credibility, which the court was

entitled to do.      We have declined to disturb that finding.

Therefore, we cannot find that the court abused its discretion

in finding that, on the weight of the evidence credited by the

court, the harm likely to be caused by a change in the child’s

environment resulting from a modification of the prior decree is

outweighed by the advantages of the change in environment to the

child.    R.C. 3109.04(E)(1)(a)(iii).
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    {¶ 34} The third assignment of error is overruled.       The

judgment of the domestic relations court will be affirmed.



FAIN, J. and FROELICH, J. concur.



Copies mailed to:

Joseph M. Juergens, Esq.
Linda Joanne Cushman, Esq.
Hon. Thomas J. Capper
