[Cite as Eatherton v. Behringer, 2012-Ohio-1584.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




DEE ANN EATHERTON,

        PLAINTIFF-APPELLANT,                           CASE NO. 13-11-12

        v.

JOEL DEAN BEHRINGER,                                   OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Seneca County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 20470086

                       Judgment Reversed and Cause Remanded

                              Date of Decision: April 9, 2012




APPEARANCES:

        John M. Kahler, II for Appellant

        Karen S. Behm for Appellee
Case No. 13-11-12



ROGERS, J.

       {¶1} Plaintiff-Appellant, Dee Ann Eatherton (“Eatherton”), appeals the

judgment of the Court of Common Pleas of Seneca County, Juvenile Division,

granting Defendant-Appellee, Joel Dean Behringer (“Behringer”), residential

parent status of their child, Adam Andrew Eatherton-Behringer (“Adam”). On

appeal, Eatherton contends that the trial court erred in finding that a change in

Adam’s circumstances had occurred; that the trial court erred in finding that it is in

Adam’s best interest that Behringer be designated the residential parent; that the

trial court erred in finding that she had interfered with Behringer’s parenting time;

that the trial court erred in considering her phone messages as such evidence was

outside the record; that the trial court erred in considering her strained relationship

with her father; that the trial court erred in finding that she failed to complete the

mandated counseling program; and, that the trial court erred when it failed to

follow the clinical psychologist’s recommendation for shared parenting. Based on

the following, we reverse the judgment of the trial court.

       {¶2} Eatherton and Behringer, who never married, had a child together,

Adam, in July 2003.

       {¶3} In July 2004, Eatherton filed a complaint, in which she declared that

Behringer was Adam’s biological father and requested that she be designated

Adam’s residential parent. In August 2004, Behringer filed an answer admitting

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to each of the allegations contained in Eatherton’s complaint and requesting the

trial court to allocate parental rights and responsibilities. In August 2005, the trial

court filed a consent judgment entry, in which it found the following: Eatherton

and Behringer agreed that Behringer was Adam’s biological father; the two parties

agreed, in pertinent part, that Eatherton will be Adam’s residential parent;

Behringer shall have visitation with Adam on Tuesday evenings each week from

6:00 p.m. to 9:00 p.m.; the visitation schedule shall follow the local visitation

rules; and, that if Eatherton hinders Behringer’s visitation with Adam, Behringer

shall pick the date to makeup his visitation. Docket Entry No. 26.

       {¶4} Between January and June 2008 Behringer filed four motions for

contempt against Eatherton. During the same period, Eatherton filed two motions

for contempt, a motion to modify custody, a motion to prohibit Behringer from

interfering with her telephone contact with Adam, a motion to modify child

support, a motion concerning Adam’s health insurance, and a motion to modify

parenting time. A hearing on the foregoing motions was held on September 11,

2008. In November 2008, the magistrate filed a decision addressing each motion.

The magistrate made the following pertinent findings and recommendations:

Eatherton shall be granted her summer vacation with Adam for the last week in

August 2008; Behringer’s motions for contempt against Eatherton are well-taken;

and, Eatherton’s motions for contempt against Behringer are not well-taken.

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Docket Entry No. 100. In December 2008, the trial court adopted the magistrate’s

decision as its own.

       {¶5} In March 2009, Behringer filed two motions for contempt against

Eatherton and a motion for reallocation of parental rights and responsibilities,

requesting the trial court to designate him as Adam’s residential parent. Behringer

also filed a motion to appoint a guardian ad litem (“GAL”), which the trial court

granted.

       {¶6} In June 2009, the trial court filed a consent order, ordering Eatherton

and Behringer to participate in a full custody evaluation with Dr. Thomas Hustak

(“Dr. Hustak”) and that “[e]ach party shall comply with any and all requests of Dr.

Hustak.” Docket Entry No. 146. In December 2009, Dr. Hustak filed his report

with the trial court. In relevant part, Dr. Hustak’s report recommended that Adam

“have access to both parents in shared a parenting plan,” that Eatherton

“immediately [seek] out her own personal counseling and psychotherapy,” and if

Eatherton does not seek out such counseling “within a reasonable amount of time

* * *, then it would be [his] opinion that Adam’s * * * best interest would be

advanced by having * * * Behringer assigned as the sole custodian, and * * *

Eatherton limited to visitation.” Dr. Hustak’s Report, pp. 77-78.




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       {¶7} In August 2009, after a hearing, the magistrate filed a decision

concerning Behringer’s March 2009 motions for contempt. Docket Entry No. 160.

The magistrate found both motions to be well-taken.

       {¶8} In March 2010, both Eatherton and Behringer filed proposed shared

parenting plans with the trial court. In the same month, the GAL filed its report

and recommendations with the trial court. The GAL recommended that “Adam

Andrew be placed in the residential custody of father, Joel Behringer, because

Adam needs a positive role model as opposed to mother’s negative role model.”

GAL’s Report and Recommendations, p. 7.

       {¶9} On March 18 and 19, 2010, the magistrate held a hearing on

Behringer’s motion for reallocation of parental rights and responsibilities. The

hearing was continued to June 10, 2010. In the interim, the magistrate issued

temporary orders, which included, in relevant part, an order requiring Eatherton to

immediately enroll in personal counseling and psychotherapy. Docket Entry No.

179.

       {¶10} In July 2010, the magistrate issued its decision, recommending that

the trial court designate Behringer as Adam’s residential parent. Docket Entry No.

189. Later that month, Eatherton filed her objections to the magistrate’s decision.

Docket Entry No. 191. On February 4, 2011, the trial court filed an entry denying

each of Eatherton’s objections and adopted the magistrate’s decision as its own.

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Docket Entry No. 222.       Eatherton appealed the entry to this Court, which

remanded the matter to the trial court with instructions to issue a judgment entry in

compliance with Civ.R. 53(D)(3)(e). Docket Entry No. 229. On March 22, 2011,

the trial court, pursuant to this Court’s ruling, filed its judgment entry, which now

comports with the requirements set forth in Civ.R. 53(D)(3)(e). Docket Entry No.

231.

       {¶11} It is from this judgment Eatherton appeals, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT AND THE MAGISTRATE ERRED IN
       FINDING THAT 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 OR THE CHILD’S
       RESIDENTIAL PARENT.

                            Assignment of Error No. II

       THE TRIAL COURT AND THE MAGISTRATE ERRED IN
       FINDING THAT A MODIFICATION IS NECESSARY TO
       SERVE THE BEST INTEREST OF THE PARTIES’ MINOR
       CHILD. THE MAGISTRATE ERRED IN FINDING THAT A
       CHANGE IN CUSTODY IS IN THE BEST INTEREST OF
       THE PARTIES’ MINOR CHILD.    THE MAGISTRATE
       ERRED IN FINDING THAT THE HARM LIKELY TO BE
       CAUSED BY A CHANGE OF ENVIRONMENT IS
       OUTWEIGHED BY THE ADVANTAGES OF THE CHANGE
       OF ENVIRONMENT TO THE CHILD.


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                    Assignment of Error No. III

      THE TRIAL COURT AND THE MAGISTRATE ERRED IN
      FINDING THAT MOTHER HAS INTERFERED WITH
      FATHER’S PARENTING TIME.

                    Assignment of Error No. IV

      THE TRIAL COURT AND THE MAGISTRATE ERRED BY
      CONSIDERING EVIDENCE OUTSIDE THE RECORD,
      SPECIFICALLY, EVIDENCE OF MOTHER’S PHONE CALL
      MESSAGES PRESENTED AT A HEARING HELD ON
      SEPTEMBER 11, 2008. (PARAGRAPH 45 OF THE
      MAGISTRATE’S DECISION).

                    Assignment of Error No. V

      THE TRIAL COURT AND THE MAGISTRATE ERRED IN
      CONSIDERING MOTHER’S STRAINED RELATIONSHIP
      WITH HER OWN FATHER AND USING THAT STRAINED
      RELATIONSHIP AGAINST HER IN DECIDING THE ISSUE
      OF CHANGE OF CUSTODY. (PARAGRAPH 48 OF THE
      MAGISTRATE’S DECISION). THE MAGISTRATE ERRED
      BY ADMITTING IRRELEVANT EVIDENCE OVER THE
      OBJECTION OF THE PLAINTIFF.

                    Assignment of Error No. VI

      THE TRIAL COURT AND THE MAGISTRATE ERRED BY
      FINDING THAT PLAINTIFF ANN EATHERTON FAILED
      TO COMPLETE HER COUNSELING PROGRAM.

                    Assignment of Error No. VII

      THE TRIAL COURT AND THE MAGISTRATE ERRED BY
      FAILING    TO    FOLLOW     DR.    HUSTAK’S
      RECOMMENDATION OF SHARED PARENTING.


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                             Assignment of Error No. I

       {¶12} In her first assignment of error, Eatherton contends that the trial court

erred in finding that a change in circumstances had occurred.          Based on the

following, we find that the trial court erred as a matter of law in determining that a

change in circumstances had occurred.

       {¶13} Decisions concerning child custody matters rest within the sound

discretion of the trial court.   Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

Custody determinations are some of the most difficult and agonizing decisions a

trial judge must make, and, therefore, appellate courts must grant wide latitude to

their consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418

(1997). Therefore, a reviewing court will not reverse a trial court’s decision

regarding child custody absent an abuse of discretion. Masters v. Masters, 69

Ohio St.3d 83, 85 (1994).

       {¶14} “While a trial court’s discretion in a custody modification proceeding

is broad, it is not absolute, and must be guided by the language set forth in R.C.

3109.04.” Miller at 74. Since Behringer seeks to modify a prior decree allocating

parental rights and responsibilities the trial court’s analysis must be guided by the

language set forth in R.C. 3109.04(E)(1)(a), which provides, in relevant part:

       The court shall not modify a prior decree allocating parental rights
       and responsibilities for the care of children unless it finds, based on

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         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 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:

         ***

         (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.

Explaining R.C. 3109.04(E)(1)(a), this Court stated:

         When deciding whether a modification of custody is appropriate, the
         court must determine three things. (1) Has there been a change in
         circumstances? (2) Is this modification in the best interest of the
         child? (3) Will the harm that will result from the change be
         outweighed by the benefits that will result from the change?1
         (Emphasis added.) Clark v. Smith, 130 Ohio App.3d 648, 653 (3d
         Dist. 1998).

Based on this Court’s explanation in Clark, we find that the trial court must

independently determine each step within R.C. 3109.04(E)(1)(a). Procedurally,

the trial court must first determine whether there has been a change in

circumstances. See Loudermilk v. Lynch, 11th Dist. Nos. 2002-A-0044, 2002-A-

1
  We note that the third step may also be satisfied if “[t]he residential parent agrees to a change in the
residential parent or both parents under a shared parenting decree to a change in the designation of
residential parent” or “[t]he child, with 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.” R.C. 3109.04(E)(1)(a)(i-ii). While the existence of (i) or (ii) may satisfy the third step of R.C.
3109.04(E)(1)(a), that was not the case in Clark nor is it the case here.


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0045, 2004-Ohio-5299, ¶ 19 (the trial court must consider each of the three steps

in R.C. 3109.04(E)(1)(a) in the order listed), and Springer v. Booth, 6th Dist. No.

E-99-022 (March 17, 2000). Without this initial finding the trial court has no

reason to proceed to the next two issues of whether modification is in the child’s

best interest, and whether the harm that will result from the change of environment

is outweighed by the advantages that will result from the change of environment.

See Loudermilk at ¶ 21 (when a trial court has failed to consider this initial,

threshold question, the decision must be reversed and remanded for the proper

application of the requirements of R.C. 3109.04(E)(1)(a)).

      {¶15} Here, the magistrate did not independently determine whether there

had been a change in circumstances.           After reciting the language of R.C.

3109.04(E)(1)(a), the magistrate made the following findings:

      22. The undersigned finds that O.R.C. Section 3109.04(E)(1)(a)(i)
      and (ii) do not apply. The residential parent, Mother, does not agree
      with a change of residential parent and Adam has not been integrated
      into the family of Father with Mother’s consent.

      23. The undersigned finds that O.R.C. Section 3109.04(E)(1)(a)(iii)
      does apply. The Child Custody Evaluation set forth shared parenting
      was the best thing for Adam if Mother completed four months of
      personal counseling and psychotherapy. Further, the Child Custody
      Evaluation further set forth that “[i]f she cannot do this within a
      reasonable amount of time (four months or less), then it would be
      my opinion that Adam’s * * * best interest would be advanced by
      having * * * Behringer assigned as the sole custodian, with * * *
      Eatherton, limited to visitation.” The undersigned finds that this
      recommendation makes it clear that the harm likely to be caused by

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       a change of environment is outweighed by the advantages of the
       change of environment to the child.

       24. The undersigned finds that at least one of the three factors exists
       under O.R.C. 3109.04(E)(1)(a) and therefore there is a change in
       circumstances and that more analysis is needed to determine the
       change of custody and the best interest for Adam as set forth in
       O.R.C. Section 3109.04(F)(1). (Emphasis added.) See Magistrate’s
       Decision, p. 16.

Given the foregoing, it is clear that the magistrate determined that the first step

(i.e. a change in circumstances) existed simply because the third step (i.e. the harm

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

the change of environment) existed. This was improper. The first and third steps

of R.C. 3109.04(E)(1)(a) are wholly distinct from one another. Therefore, the

existence or satisfaction of one does not automatically equate to the existence or

satisfaction of the other. Accordingly, we find that the magistrate erred as a matter

of law when it summarily found that the there was a change in circumstances

because the harm likely to be caused by a change of environment is outweighed by

the advantages of the change of environment.

       {¶16} Because the magistrate did not independently consider the first step

of R.C. 3109.04(E)(1)(a), we are unable to conduct meaningful appellate review of

Eatherton’s first assignment of error. After further consideration, the trial court

may be able to articulate why a finding of a change of circumstances is warranted.



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However, it has not yet done so, and it is not within the purview of this reviewing

court do so. As the Twelfth District aptly stated:

       Given the deference we are to afford the trial court, its written
       opinion takes on additional significance because through it, the trial
       court provides us with the information and reasoning it deemed
       integral when determining custody matters. However, when that
       analysis and clear reasoning is absent from the trial court’s written
       opinion, it is impossible to review the decision without supplanting
       the trial court’s judgment with our own. As doing so is not
       permitted in an abuse of discretion review, we are forced to ask the
       trial court to clearly enumerate its reasoning and to follow statutory
       precepts before we can review its decision * * *. Preece v. Stern,
       12th Dist. Nos. CA2008-09-024, CA2008-12-029, 2009-Ohio-2519,
       ¶ 14.

Accordingly, it is the responsibility of the trial court to follow the applicable

statutes, apply the law to the evidence that has been presented, and articulate its

reasoning sufficiently so that a reviewing court may make a meaningful review of

its orders.

       {¶17} Accordingly, we sustain Eatherton’s first assignment of error.

       {¶18} Having sustained Eatherton’s first assignment of error we find her

second, third, fourth, fifth, sixth, and seventh assignments of error to be moot and

we decline to address them. App.R. 12(A)(1)(c).

       {¶19} Having found error prejudicial to Eatherton herein, in the particulars

assigned and argued in her first assignment of error, we reverse the judgment of




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the trial court, and remand the matter for proper application of the requirements of

R.C. 3109.04(E)(1)(a).

                                                           Judgment Reversed and
                                                                Cause Remanded

PRESTON, J., concurs.
SHAW, P.J., concurs in Judgment Only

/jlr




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