[Cite as Welch v. Schudel, 2010-Ohio-715.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




EARNEST P. WELCH,

        PLAINTIFF-APPELLANT,                             CASE NO. 15-09-13

        v.

JULIE A. SCHUDEL,                                        OPINION

        DEFENDANT-APPELLEE.




               Appeal from Van Wert County Common Pleas Court
                          Domestic Relations Division
                         Trial Court No. DR 01-06-111

                                     Judgment Affirmed

                            Date of Decision:   March 1, 2010




APPEARANCES:

        Andrew B. King for Appellant

        Martin D. Burchfield for Appellee
Case No. 15-09-13


PRESTON, J.

          {¶1} Plaintiff-appellant, Ernest P. Welch (hereinafter “Ernest”), appeals

the Van Wert County Court of Common Pleas’ judgment denying his motion for a

reallocation of parental rights and responsibilities. For the reasons that follow, we

affirm.

          {¶2} Ernest and the defendant-appellee, Julie A. Schudel (formerly

Welch) (hereinafter “Julie”), were divorced on July 24, 2002 and awarded shared

parental rights for their minor child, Trinity A. Welch (d.o.b. 4/24/00) (hereinafter

“Trinity”), who was born as issue of the marriage. (Doc. No. 18). The shared

parenting agreement provided, in pertinent part, that Earnest would have physical

custody of Trinity every other week Thursday through the following Tuesday.

(Doc. No. 17). After Trinity enrolled in Kindergarten in the school district where

Julie resided, however, the shared parenting agreement provided Ernest visitation

on weekends in accordance with local rules. (Doc. No. 18).

          {¶3} On September 16, 2004, Earnest filed a motion to modify or

terminate the shared parenting plan and to reallocate parental rights and

responsibilities. (Doc. No. 24). On February 25, 2005, the magistrate issued a

decision recommending that the shared parenting plan be amended to provide

Earnest with more parenting time, but that the plan be continued as amended.




                                         -2-
Case No. 15-09-13


(Doc. No. 40).        On May 31, 2005, the trial court adopted and approved the

magistrate’s decision. (Doc. No. 43).

        {¶4} Thereafter, on July 2, 2008, Earnest filed a second motion for

reallocation of parental rights and responsibilities, which is the subject of this

present appeal. (Doc. No. 45). The matter proceeded to a hearing on January 15,

2009. (Doc. No. 53). Earnest was represented by counsel at the hearing, but Julie

appeared and proceeded pro se. (Jan. 15, 2009 Tr. at 2-3). Thereafter, on February

4, 2009, the trial court held an in-camera interview of the parties’ minor child,

Trinity. (Doc. No. 56).1           On May 8, 2009, the magistrate issued a decision

recommending that: Earnest be named Trinity’s residential parent with Julie being

afforded visitation pursuant to local rule; and Julie be ordered to pay child support

to Earnest in the amount of $190.96 per month. (Doc. No. 61).

        {¶5} On May 19, 2009, Attorney Martin D. Burchfield entered an

appearance as counsel for Julie. (Doc. No. 62). On May 21, 2009, Julie filed a

motion seeking an extension of time to file her objections to the magistrate’s

decision, and for findings of fact and conclusions of law. (Doc. No. 63). On May

22, 2009, the magistrate granted Julie fourteen (14) days from the filing of the

transcript to file her objections. (Doc. No. 65).



1
 We note that this Court has not been provided with a transcript of the magistrate’s in-camera interview
with Trinity.



                                                  -3-
Case No. 15-09-13


       {¶6} On July 27, 2009, Julie filed her objections to the magistrate’s

decision, arguing that an absence of a change in circumstances precluded the

magistrate from modifying the parental rights of the parties. (Doc. No. 68). On

August 21, 2009, the trial court sustained Julie’s objections, overruled the

magistrate’s decision, and reinstated all previous orders of the court. (Doc. No.

70).

       {¶7} On September 9, 2009, Earnest filed a notice of appeal from the trial

court’s August 21, 2009 judgment. Earnest now appeals raising one assignment of

error for our review.

                          ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN FINDING THAT NO
       CHANGE IN CIRCUMSTANCES HAD OCCURRED
       RELATIVE TO THE PARTIES OR THEIR MINOR CHILD
       SINCE THE ISSUANCE OF THE PRIOR PARENTING
       DECREE AND THAT THE COURT WAS PRECLUDED
       FROM   MODIFYING    PARENTAL    RIGHTS  AND
       RESPONSIBILITIES.

       {¶8} In his sole assignment of error, Earnest argues that the trial court

erred by failing to find a change in circumstances upon which the magistrate could

reallocate parental rights and responsibilities. Earnest points to several facts that

he alleges are changes in circumstances, including: (1) the child’s age and the fact

that the child expressed her wishes and concerns to the magistrate during an in-

camera interview; (2) Julie has moved twice without proper notice being provided



                                         -4-
Case No. 15-09-13


to the court or to him; (3) that Julie has lived with one boyfriend for a year and is

currently involved with another man who stays at her home most evenings but has

another residence where Julie and Trinity sometimes stay even on school nights;

(4) Julie’s mother cares for Trinity every day after school and helps her with all of

her homework due to Julie’s current work schedule; (5) Trinity is unable to

participate in extracurricular activities due, in part, to Julie’s work schedule; (6)

Julie is often asleep in the mornings so that Trinity has to prepare herself for

school, which has resulted in Trinity being late several times; (7) at least once,

Trinity waited outside for the school bus for two hours since school was delayed;

(8) Julie has failed to provide Trinity with necessary medications for her asthma

and allergies, failed to attend doctor’s appointments, and, generally, failed to take

responsibility for Trinity’s healthcare; (9) as a result of Julie’s failure to ensure

that Trinity has taken her medication, Trinity’s lung capacity deteriorates while in

Julie’s care; whereas, her lung capacity showed signs of improvement when she

was with Earnest over the summers; (10) Julie fails to pay for Trinity’s school

supplies and provide Trinity with lunch money, which Earnest provides in addition

to his monthly child support and medical expenses; (11) Earnest has since

remarried, is self-employed and working from home, which would allow him to be

home in the mornings prior to school and in the evenings after school for Trinity.

       {¶9} R.C. 3109.04 provides, in pertinent part:



                                         -5-
Case No. 15-09-13


      (E)(1)(a) 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 * * *

On the one hand, a change in circumstances must be “a change of substance, not a

slight or inconsequential change.” Davis v. Flickinger (1997), 77 Ohio St.3d 415,

418, 674 N.E.2d 1159. As the Court in Davis stated, “‘[t]he changed conditions *

* * must be substantiated, continuing, and have a materially adverse effect upon

the child. The latter is the paramount issue.’” 77 Ohio St.3d at 417, quoting Wyss

v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153. See, also,

Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d 599, 604-05, 737 N.E.2d 551;

Lindman v. Geissler, 171 Ohio App.3d 650, 2007-Ohio-2003, 872 N.E.2d 356,

¶33. On the other hand, R.C. 3109.04(E)(1)(a) does not require that the change be

“substantial,” nor does “‘the change * * * have to be quantitatively large, but

rather, must have a material effect on the child.’” Davis, 77 Ohio St.3d at 417-18;

McLaughlin v. McLaughlin-Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-1087,

¶16, citing In Re Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377,

¶31, citing Green v. Green, 3d Dist. No. 14-03-29, 2004-Ohio-185, ¶7.

      {¶10} As the Court in Davis noted, R.C. 3109.04(E)(1)(a)’s “change of

circumstances” requirement furthers the statute’s:



                                        -6-
Case No. 15-09-13


       * * * clear intent * * * to spare children from a constant tug of
       war between their parents who would file a motion for change of
       custody each time the parent out of custody thought he or she
       could provide the children a ‘better’ environment. The statute is
       an attempt to provide some stability to the custodial status of the
       children, even though the parent out of custody may be able to
       prove that he or she can provide a better environment.

77 Ohio St.3d at 418, quoting Wyss, 3 Ohio App.3d at 416. Likewise, it has been

noted that “‘[t]he purpose of requiring a finding of a change in circumstances is to

prevent a constant relitigation of issues that have already been determined by the

trial court.’” Saal v. Saal (2001), 146 Ohio App.3d 579, 582, 767 N.E.2d 750,

quoting Zinnecker v. Zinnecker (1999), 133 Ohio App.3d 378, 383, 728 N.E.2d 38.

       {¶11} In determining whether a “change” in circumstance has occurred, “a

trial judge must have wide latitude in considering all the evidence before him or

her * * * and such a decision must not be reversed absent an abuse of discretion.”

Davis, 77 Ohio St.3d at 418, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 523

N.E.2d 846.    Applying this standard of review, “an award of custody * * *

supported by a substantial amount of credible and competent evidence * * * will

not be reversed as being against the weight of the evidence by a reviewing court.”

Davis, 77 Ohio St.3d at 418, quoting Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,

550 N.E.2d 178, syllabus.       Though a trial court’s discretion in a custody

proceeding is broad, it is not absolute, and the trial court must follow the

procedure described in the applicable statute. Miller, 37 Ohio St.3d at 74.



                                        -7-
Case No. 15-09-13


         {¶12} The trial court sub judice concluded that Earnest had failed to

establish a change in circumstances under R.C. 3109.04(E)(1)(a), which precluded

the court from modifying the parental rights and responsibilities of the parties.

(Doc. No. 68). The trial court stated as follows:

         Certainly, the plaintiff correctly cites that the defendant has
         changed residences, has changed jobs, and has changed
         boyfriends.    He also argues that Trinity (Welch), d.o.b.
         4/24/2000, is now more mature since the issuance of the prior
         decree. However, these examples of “change” are all within the
         natural contemplation and anticipation of the parties, (or
         reasonably should have been), when the prior parenting decree
         was issued. The magnitude of “change” as envisioned by statute
         cannot be “mere” change, such as would naturally be
         anticipated by a reasonable person. Otherwise natural “change
         “would result in constant efforts by parents to seek
         modifications, further resulting in placement disruptions to the
         child.[”] Further review of the transcript, by the court, does not
         reveal any other such “change in circumstances” that would
         otherwise warrant a modification from the prior decree.

(Id.).

         {¶13} Applying the foregoing rules of law here, we cannot conclude that

the trial court abused its discretion by finding that the record does not contain any

change in circumstances under R.C. 3109.04(E)(1)(a) warranting a modification

from the prior decree.      Earnest’s alleged changes of circumstances do not

constitute “a change of substance” sufficient to warrant a change of custody

determination. Davis, 77 Ohio St.3d at 418. Earnest’s arguments that he is now

married, works from home, and would be present when Trinity gets ready for



                                        -8-
Case No. 15-09-13


school and returns from school; and that Trinity cannot be involved in

extracurricular activities due, in part, to Julie’s work schedule are essentially

arguments that Trinity would be better off with him because he could provide her

with a better environment. Evidence that a child would be better off is not

sufficient to support a change of custody. Well v. Well (1990), 70 Ohio App.3d

606, 591 N.E.2d 843. Likewise, “custody of a child will not be changed merely on

a showing by the nonresidential parent that he can provide a better environment

than the residential parent.” Allgood v. Allgood (Oct. 25, 1999), 12th Dist. No.

CA98-12-156, at *7, citing Wyss, 3 Ohio App.3d 412; Saal, 146 Ohio App.3d at

583. The Court in Hayes v. Hayes rejected a father’s arguments that he had the

ability to spend more time with his son than before and that he had recently built a

“gated-community” home in an “excellent” school district where his son could

play hockey constituted changes in circumstances under the statute. 11th Dist. No.

2005-L-138, 2006-Ohio-6538, ¶22. The Court in Hayes agreed with the trial court

that the father’s arguments were essentially that he could provide a “better” home

environment, which is insufficient to find a change in circumstances. Id.

       {¶14} Likewise, the Court in Andrews v. Andrews found that a father’s

allegations that his former wife failed to provide their daughter with sufficient

medical attention; that his former wife moved from Ohio without notifying the

court; that his former wife quit her job in Ohio and took a job in Virginia; that the



                                         -9-
Case No. 15-09-13


children were removed from their school systems; that his former wife filed

bankruptcy; and that five years have gone by since the original divorce decree did

not constitute a change in circumstances. 11th Dist. No. 2005-T-0121, 2006-Ohio-

4942, ¶¶28-41. Like the father in Andrews, who raised similar purported changes

in circumstances, Earnest has failed to show that the changes have had a materially

adverse effect upon Trinity. Davis, 77 Ohio St.3d at 418, quoting Wyss, 3 Ohio

App.3d at 416; Rohrbaugh, 136 Ohio App.3d at 604-05; Lindman, 2007-Ohio-

2003, at ¶33; McLaughlin, 2007-Ohio-1087, at ¶16, citing In Re Tolbert, 2006-

Ohio-2377, at ¶31, citing Green, 2004-Ohio-185, at ¶7.

       {¶15} The evidence at the hearing demonstrated that Julie moved to a

house that was a half-mile down the road from Julie’s parents. (Jan. 15, Tr. at

114). Julie admitted that she neglected to inform the court that she had moved, but

Julie testified that she gave Earnest’s wife, Molly, actual notice of the move. (Id.).

Furthermore, there is nothing in the record to indicate that this move had a

materially adverse effect upon Trinity; in fact, the record contains competent,

credible evidence from which the trial court could have concluded that the move

benefited Trinity because it allowed her to be closer to her grandmother, Patricia

Ann Schudel. (Id.); (Id. at 82-83). In fact, Patricia testified that she is able to be at

Julie’s house when the school bus drops Trinity and Trinity’s cousin, Devin, off at

the house. (Id. at 90). Patricia then takes Trinity to her home where she does her



                                          -10-
Case No. 15-09-13


homework until Julie is finished with work. (Id. at 89). According to Earnest’s

own testimony, Trinity was excelling academically and considered gifted. (Id. at

15-16).

       {¶16} Furthermore, Julie’s new boyfriend, Eric Langenberfer, testified that

Trinity has her own bedroom in Julie’s house, and that his girls slept on a couch

that pulls out into a bed when they stay the night at Julie’s. (Id. at 101).

Langenberfer also testified that he could not recall a time when Trinity stood

outside for two hours in the fog while waiting for the school bus. (Id. at 102).

Trinity’s grandmother, Patricia, also could not remember such an incident, and

testified that Trinity has her own room, and that Langenberfer’s daughters sleep on

the couch when the stay at Julie’s. (Id. at 83, 99-100). Julie also refuted Earnest’s

allegations that Trinity had to get ready for school by herself. (Id. at 115). Julie

entered into evidence a copy of Trinity’s progress report, which showed that

Trinity had only two (2) absences. (Defendant’s Ex. A).

       {¶17} With regard to Trinity’s medical issues, Julie testified that she went

to several doctor’s appointments in the beginning, but that her (Julie’s) school

schedule changed so she could not attend the appointments. (Id. at 114).

Thereafter, Earnest stopped informing her of Trinity’s appointments and even took

Trinity from school for the appointments without informing Julie. (Id. at 114-15).

With regard to Trinity being involved in extracurricular activities, Julie testified



                                        -11-
Case No. 15-09-13


that Trinity was a girl scout for a while but did not want to continue it, and that

Trinity could not be in most other activities because they involved weekends when

Trinity was with her father who lives out of town. (Id. at 14, 116). Trinity is

involved in choir at school. (Id. at 117).

       {¶18} After reviewing the record herein, we can conclude that there was

competent, credible evidence from which the trial court could have concluded that

Trinity was not adversely affected from any of the purported changes in

circumstances. Davis, 77 Ohio St.3d at 418, quoting Bechtol, 49 Ohio St.3d 21,

syllabus. As such, the trial court did not abuse its discretion in finding no change

in circumstances under R.C. 3109.04(E)(1)(a).             Without a change in

circumstances, the trial court could not reallocate the parental rights and

responsibilities of the parties herein. R.C. 3109.04(E)(1)(a); Davis, 77 Ohio St.3d

416. Furthermore, since the trial court found no change in circumstances, it was

not required to conduct a best interest analysis under R.C. 3109.04(E)(1)(a),

(F)(1). See, e.g., Wooten v. Schwaderer, 3d Dist. No. 14-08-13, 2008-Ohio-3221,

¶4, citing Fox v. Fox, 3d Dist. No. 5-03-42, 2004-Ohio-3344, ¶38 (change in

circumstances is a threshold inquiry before determining whether the modification

would be in the child’s best interests); Markley v. Markley, 9th Dist. No.

06CA0043, 2007-Ohio-886, ¶12, quoting Cowan v. Cowan, 4th Dist. No. 04CA5,

2004-Ohio-6119, ¶16. (“If no change in circumstances occurred, the requirements



                                         -12-
Case No. 15-09-13


for a change of custody cannot be satisfied, and a reviewing court need not

examine the court’s determination of the child’s best interests.”).

       {¶19} Earnest’s sole assignment of error is, therefore, overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




                                        -13-
