[Cite as In re K.M., 2011-Ohio-3276.]




           IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

                                                :

                                                :   C.A. CASE NO. 2010-CA-35
IN RE:
K.M. AND B.M.                                   :   T.C. CASE NOS. 2004-JH-149
                                                                   2004-JH-150
                                                :
                                                    (Civil Appeal from
                                                :   Common Pleas Court,
                                                    Juvenile Division)
                                        . . . . . . . . .

                                         O P I N I O N

                    Rendered on the 30th day of June, 2011.

                                        . . . . . . . . .

Stacey Robert Pavlatos, Atty. Reg. No. 0012392, 700 East High
Street, Springfield, OH 45505
     Attorney for Plaintiff-Appellant

Cathy J. Weithman, Atty. Reg. No. 0020889, 201 West Court Street,
Urbana, OH 43078
     Attorney for Defendant-Appellee

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a final order of the domestic

relations - juvenile - probate division of the court of common

pleas that granted a father’s motion to modify a prior decree

allocating the parental rights and responsibilities for care of

his     two     minor       children       to   their   maternal   grandmother,   by
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designating the grandmother the legal custodian of the two

children, to now award those rights to the father instead.

     {¶ 2} The two children were born on June 30, 2004, to Emily

Propst and Joshua M. Moore.       The parents never married.   Emily

Propst died on November 6, 2006.      Thereafter, her mother, Karen

Sue Propst, moved for custody of the two children.        On October

10, 2007, with the agreement of Joshua Moore, the court designated

Karen Sue Propst the legal custodian of the two children.

     {¶ 3} On July 17, 2009, Joshua Moore moved for modification

of the order of October 10, 2007, asking the court to designate

him the residential parent and legal custodian of his two children.

 Following evidentiary hearings, the court granted Joshua Moore’s

motion   on   December   6,   2010.   Concerning   the   modification

provisions of R.C. 3109.04(E)(1)(a), the court found that a change

had occurred in the circumstances of Joshua Moore, in that he was

now more stable.    The court also found that the best interest of

the children would be served if Moore was their residential parent

and legal custodian.

     {¶ 4} Karen Sue Propst filed a notice of appeal from the order

allocating parental rights and responsibilities for the children

to Joshua Moore.

     FIRST ASSIGNMENT OF ERROR

     {¶ 5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
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AND AS A MATTER OF LAW WHEN, BEFORE MODIFYING THE OCTOBER 10, 2007

CUSTODY ORDER, IT FAILED TO FIND ANY CHANGE IN THE CIRCUMSTANCES

OF EITHER THE TWINS OR THE APPELLANT.”

     {¶ 6} Joshua Moore and the mother of the two children, Emily

Propst, were not married.      Jurisdiction to determine custody of

their   children   is    therefore   in   the   juvenile   court.     R.C.

2151.23(F)(1) provides that the juvenile court shall exercise that

jurisdiction in accordance with R.C. 3109.04.

     {¶ 7} The court in a domestic relations proceeding must

allocate the parental rights and responsibilities for care of the

minor children of the marriage.           R.C. 3109.04(A).     If shared

parenting   is     not    requested,      the   parental     rights    and

responsibilities must be allocated primarily to one of the parents,

who is designated the residential parent and legal custodian of

the child or children.      R.C. 3109.04(A)(1).

     {¶ 8} R.C. 3109.04(E)(1)(a) prohibits modification of a prior

decree allocating parental rights and responsibilities for the

care of children unless the court 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
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of the child.”

     {¶ 9} The juvenile court found that the October 10, 2007 order

designating Karen Sue Propst the legal custodian of the two children

was a prior decree allocating parental rights and responsibilities

for their care, and therefore that the relief Joshua Moore requested

is subject to the requirements of R.C. 3109.04(E)(1)(a).    The court

granted that relief, modifying its prior decree, but without

finding that a change had occurred in the circumstances of either

the children or Karen Sue Propst.     The court instead proceeded

on a finding that a change had occurred in the circumstances of

Joshua Moore.

     {¶ 10} The juvenile court noted that “in custody disputes

between parents and grandparents, the general rule in original

custody awards is that parents, who are suitable persons, have

a paramount right to the custody of their minor children.   However,

once an original custody award has been made the general rule is

that such award will not be modified unless necessary to serve

the best interests of the child.    Massito v. Massito (1986), 27

Ohio St.3d 63 at 65.”

     {¶ 11} The general rule of parental suitability to which the

court referred is set out in In re Perales (1977), 52 Ohio St.2d

89, at the Syllabus:

     {¶ 12} “In an R.C. 2151.23(A)(2) child custody proceeding
                                                                        5

between a parent and a nonparent, the hearing officer may not award

custody to the nonparent without first making a finding of parental

unsuitability-that      is,    without   first     determining   that   a

preponderance of the evidence shows that the parent abandoned the

child, that the parent contractually relinquished custody of the

child, that the parent has become totally incapable of supporting

or caring for the child, or that an award of custody to the parent

would be detrimental to the child.”         (Emphasis supplied.)

     {¶ 13} The court appears to have reasoned that the October 10,

2007 order designating Karen Sue Propst the legal custodian of

the two children could only have been made on a finding that Joshua

Moore was an unsuitable parent and, therefore, because of a parent’s

paramount right, the focus of the court’s current inquiry for

purposes of R.C. 3109.04(E)(1)(a) should be whether circumstances

have changed which now make Moore a suitable parent.

     {¶ 14} R.C. 3109.04(E)(1)(a) requires a finding that a change

has occurred, not in the circumstances of the nonresidential

parent, but in the circumstances of the child or the residential

parent and legal custodian.      That requirement applies even if the

noncustodial party is a parent and the custodial party is a

nonparent.      Bragg     v.    Hatfield,    152    Ohio   App.3d   174,

2003-Ohio-1441.   The trial court erred when it misapplied the

change of circumstances requirement in R.C. 3109.04(E)(1)(a) as
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the court did.

     {¶ 15} The record on appeal, which commences with a complaint

for custody that Joshua Moore filed on July 23, 2009, [Dkt. 1.],

fails to demonstrate that Joshua Moore had previously been found

unsuitable, an assumption the trial court made.    Neither does the

record show that Moore had contractually relinquished custody of

the two children, which Karen Sue Propst argues on appeal.        On

remand, the court must determine whether either or both of those

predicate events occurred, prior to applying R.C. 3109.04 (E)(1)(a)

to the motion for custody that Joshua Moore filed.       If neither

predicate event occurred, R.C. 3109.04(E)(1)(a) does not apply

to the motion for custody of his two children that Joshua Moore

filed.

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

     SECOND ASSIGNMENT OF ERROR

     {¶ 17} “THE FINDING BY THE TRIAL COURT THAT JOSHUA M. MOORE’S

STABILITY WAS A CHANGE IN CIRCUMSTANCES WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

     {¶ 18} This assignment of error is rendered moot by our decision

sustaining the first assignment of error, and we therefore decline

to decide the error assigned.     App.R. 12(A)(1)(c).

     {¶ 19} The judgment of the trial court will be reversed and

the cause is remanded for further proceedings consistent with this
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opinion.



FAIN, J. and FROELICH, J. concur.



Copies mailed to:

Stacey Robert Pavlatos, Esq.
Cathy J. Weithman, Esq.
Hon. Brett A. Gilbert
