[Cite as Dibble v. Dibble, 2011-Ohio-5803.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
NANCY DIBBLE,                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                        Plaintiff-Appellant,   :       Hon. Patricia A. Delaney, J.
                                               :
v.                                             :
                                               :       Case No. 2011-CA-00072
DANIEL DIBBLE,                                 :
                                               :
                     Defendant-Appellee.       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 07DR00291

JUDGMENT:                                          Affirmed in part; Reversed in part and
                                                   Remanded



DATE OF JUDGMENT ENTRY:                            November 7, 2011



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

STEPHEN P. HANUDEL                                 SUSAN PUCCI
326 North Court Street                             4429 Fulton Drive N.W., Ste. 100
Medina, OH 44256                                   Canton, OH 44718
[Cite as Dibble v. Dibble, 2011-Ohio-5803.]


Gwin, P.J.

        {¶ 1} Plaintiff-appellant Nancy Dibble appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Stark County, Ohio, which sustained

the motion of defendant-appellee Daniel Dibble to dismiss her motions for change of

custody and to modify visitation. The court also modified child and spousal support.

Appellant assigns three errors to the trial court:

        {¶ 2} “I.    THE      TRIAL      COURT   ABUSED   ITS   DISCRETION   WHEN    IT

DETERMINED CHILD SUPPORT AND SPOUSAL SUPPORT WITHOUT HOLDING AN

EVIDENTIARY HEARING.

        {¶ 3} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW WHEN IT DISMISSED APPELLANT’S MOTION FOR CUSTODY

AND MOTION TO RESTORE VISITATION OF HER CHILDREN.

        {¶ 4} “III. THE TRIAL COURT’S DETERMINATION OF CHILD SUPPORT AND

SPOUSAL SUPPORT WITHOUT AN EVIDENTIARY HEARING AND DISMISSALS OF

APPELLANT’S MOTION FOR CUSTODY AND MOTION TO RESTORE VISITATION

VIOLATED APPELLANT’S DUE PROCESS RIGHTS UNDER THE UNITED STATES

CONSTITUTION AND OHIO CONSTITUTION.”

        {¶ 5} The record indicates the parties were divorced in June of 2008, and

appellee was named residential parent of the parties’ three children, then age 16 ½, 13,

and 7½. The eldest has subsequently turned 18 and graduated high school; this appeal

involves only the two younger children.

        {¶ 6} On October 21, 2009, appellant filed a motion captioned: “Motion for

Further Orders”. It asked the court to restore visitation, which had been modified as to
Stark County, Case No. 2011-CA-00072                                                  3


the youngest child and terminated as to the two older children. It asked the court to

restore spousal support, which had been terminated because appellee was on disability.

The motion raised other issues not relevant to this appeal. In November 2009, the

parties agreed to a visitation schedule with the youngest child.

      {¶ 7} In January of 2010, appellant moved the court to conduct an in-camera

interview with each child, separately, to address the issues stated in her Motion for

Further Orders. The court overruled the motion, stating the matter had been set for

hearing. Appellant filed a motion to reconsider, which was also denied.

      {¶ 8} In March of 2010, the Stark County Child Support Enforcement Agency

entered an administrative order requiring appellant to pay child support of $445.86 plus

medical insurance or $311.19 plus $73.75 cash medical support if insurance was not

available. Appellee then filed a motion for relief from his obligation to pay spousal

support.

      {¶ 9} On August 9, 2010, a magistrate reviewed and ruled on various issues, but

found the financial issues were not ripe, because of appellee’s problems with P.E.R.S.

over his disability payments.

      {¶ 10} On November 17, 2010, the magistrate entered a decision finding all the

necessary child support worksheets had been filed. The magistrate directed appellant

to present evidence regarding spousal support within seven days of the order, and

thereafter, appellee would have seven days to respond. In December 2010, the

magistrate reduced the amount of spousal support appellant was to receive and

increased her child support obligation. The following day, appellant moved for a change

of custody.
Stark County, Case No. 2011-CA-00072                                                      4


       {¶ 11} Appellee moved to dismiss the motion for custody, and the matter was

heard by a magistrate who found the children’s counselor had not yet filed a report. No

decision was made on the change of custody and visitation pending receipt of the

counselor’s report. One of appellee’s objections to the magistrate’s decision was the

failure of the magistrate to rule on his motion to dismiss.

       {¶ 12} On March 9, 2011, the trial court dismissed appellant’s motions for change

of custody and for modification of visitation, finding it did not have jurisdiction over the

matter. The court also found that appellant had not shown a change in circumstances

since the prior order had been entered. Appellant’s objections to the magistrate’s

decision regarding spousal support and child support requested a de novo hearing. The

court adopted the magistrate’s decision regarding spousal and child support without

conducting a hearing, and appellant filed her appeal.

                                             I, II, & III

       {¶ 13} Because appellant’s assignments of error are interconnected, we will

address them together. In her first assignment of error, appellant argues the court

abused its discretion in determining child and spousal support without holding an

evidentiary hearing. A portion of her Assignment of Error III also challenges the court’s

decision on Due Process grounds. We find the court did not err in declining to conduct a

hearing on the issues of spousal and child support, and proceeding instead on the

documentary evidence presented to the magistrate.

       {¶ 14} Appellant’s original motion for modification of child and spousal support

requested a hearing, but appellant did not renew her request when the magistrate

ordered the parties to submit written arguments and documents. Her objections to the
Stark County, Case No. 2011-CA-00072                                                  5


magistrate’s decision asserted there were discrepancies in the evidence the parties

submitted, and she asked the court to conduct a de novo hearing to resolve the

conflicts. Appellant also attached additional documents about appellee’s employment to

her objections.

      {¶ 15} Civ. R. 53(D)(3)(b)(ii) requires parties to state with specificity and

particularity all grounds for an objection to the magistrate’s decision. Assuming,

arguendo, that appellant’s objections met this standard, Civ. R. 53(D)(4)(b) permits the

court to conduct a hearing, to take additional evidence, or to remand the matter to the

magistrate. Subsection (d) provides the court may refuse to take further evidence

unless the objecting party demonstrates the party could not, with reasonable diligence,

have produced the evidence for the magistrate’s consideration.

      {¶ 16} Appellant’s objections assert if the court conducted a de novo hearing, she

would present testimony which would demonstrate why appellee was no longer

employed. The documents she attached to the objections outline these circumstances.

Essentially, appellant argued appellee was voluntarily unemployed, despite the fact he

was on PERS disability.

      {¶ 17} We find appellant did not demonstrate she could not have presented this

evidence to the magistrate, and the evidence she presented to the magistrate did

include appellant’s allegations and documents regarding appellee’s employment status.

We conclude the court did not err in declining to conduct a de novo hearing on the

issues of child and spousal support.

      {¶ 18} We find the court did err in failing to conduct evidentiary hearings on the

motions for custody and to modify visitation. Appellant requested an evidentiary hearing
Stark County, Case No. 2011-CA-00072                                                      6


on her motions for custody and visitation. The court found because she did not file an

affidavit pursuant to RC. 3127.23, it lacked jurisdiction over the matters, and dismissed

the motions.

         {¶ 19} In the recent case of Dole v. Dole, Holmes App. No. 10-CA-013, 2011-

Ohio-1314, this court cited the case of In Re: Complaint for Writ of Habeas Corpus for

Goeller: Moore v. Goeller, 103 Ohio St.3d 427, 2004–Ohio–5579, 816 N.E.2d 594,

wherein the Ohio Supreme Court held the failure of a party to file a UCCJA affidavit did

not divest a juvenile court of subject matter jurisdiction to determine custody of a minor

child.

         {¶ 20} In Goeller, the Supreme Court found the requirement that the affidavit

must be filed in the first pleading has been “relaxed” by numerous courts of appeals to

allow amended pleadings or subsequent filings to include the required affidavit. Goeller

at paragraphs 9–11, citations deleted. The Court found the purpose of the UCCJA is to

avoid jurisdictional competition and conflict with courts of other jurisdictions. Goeller at

paragraph 12, citing In re: Palmer (1984), 12 Ohio St.3d at 196, 12 OBR 259, 465

N.E.2d 1312. The Supreme Court advised us that Palmer stood for the proposition that

a mechanistic interpretation of the statute would not only contravene the clear intent of

the legislature but could potentially render Ohio’s custody statutes a nullity. Dole at

paragraph nine.

         {¶ 21} We conclude the court erred in finding it lacked jurisdiction over these

motions.
Stark County, Case No. 2011-CA-00072                                                     7


       {¶ 22} Despite finding it lacked jurisdiction over the matter, the trial court did

review the motion, and found appellant had failed to set forth facts constituting a change

in circumstances since the prior order. We do not agree.

       {¶ 23} R.C. 3109.04 requires a showing change in circumstances before a court

may modify custody. In Davis v. Flickinger, 77 Ohio St. 3d 415, 1997-Ohio-260, 674

N.E.2d 1159, the Ohio Supreme Court discussed what the phrase “change in

circumstances” involved. The Court warned the change must not be slight or

inconsequential, because the legislature’s intent was to spare children from being

entangled in a “tug of war” between parents, and requiring a change in circumstances

provides some stability for the children. Id. at p. 418, citation deleted. For this reason,

an appellate court should not reverse a trial court’s decision unless we find the court

abused its discretion. Id.

       {¶ 24} The Davis Court listed facts which, taken individually, may or may not

constitute a substantial change in circumstances, but should be considered. The factors

in Davis included remarriage of the residential parent, the maturing of the child over

time, and which parent would facilitate visitation or if there is hostility and resentment

over visitation. The trial court must also consider whether the harm likely to be caused

by a change of environment is outweighed by the advantages of such a change. The

Court reminded us the goal must always be to promote the best interest of the child. Id

at 420.

       {¶ 25} The order naming appellee the residential parent was entered in June,

2008, and it is against this order we must compare the allegations of change in

circumstances. Appellant’s affidavit in support of her motion states that most recently
Stark County, Case No. 2011-CA-00072                                                        8


the younger child’s teachers have noted problems with hygiene and failure to complete

work. Appellant alleges the teachers expressed worry about his future performance as

the concepts in his studies build and layer upon one another.             Although this has

apparently been of some concern throughout the case, nevertheless as the child

becomes older, his schooling takes on added complexity and importance.

       {¶ 26} Appellant alleges appellee and the children live with appellee’s girlfriend

and her two teenage children, which has a detrimental effect on the youngest child, who

is considerably younger than all the others. The record does not show when appellee’s

girlfriend and her children became members of the household. The guardian ad litem

reports submitted to the court in October, 2008, mentions the girlfriend and her sons,

but states they have independent housing.

       {¶ 27} In her July, 2010 report the guardian ad litem stated appellee rented a

four bedroom house in August 2009. The report mentions the girlfriend and her two

sons, aged 16 and 17, presently live with appellee and his family, but does not indicate

when they first moved into appellee’s home. The counselor who was working with the

children first refers to the girlfriend and her children living with appellee in her letter of

January 4, 2011. Thus, it appears the girlfriend and her sons did not reside in the same

house as appellee and his children at the time of the original custody order.

       {¶ 28} The addition of other persons to the home and/or a change in the structure

or dynamics of the family is a consideration, and may evolve over time as the children

become older. We find appellant has alleged a change in circumstances in this regard.

       {¶ 29} Additionally the trial court overruled appellant’s request to interview the

children. In Oyler v. Oyler, Stark App. No. 2011-CA-00065, 2011-Ohio-4390, this court
Stark County, Case No. 2011-CA-00072                                                       9


found R.C. 3109.04 requires a court to conduct an interview in chambers with any or all

the children if requested by either party. Even though the court had reports from the

counselor and the guardian ad litem, it should not have refused to interview the children

in camera.

       {¶ 30} We find appellant’s motion meets the threshold requirement of

demonstrating there has been a change in circumstances, sufficient for the court to

review the custody and visitation issues. We find the trial court erred in dismissing the

matters without conducting a hearing and particularly without interviewing the children in

camera. We stress that our opinion is only that the court should have conducted a

hearing and interviews with the children, and we do not address whether there was in

fact a change in circumstances sufficient to satisfy the Davis standard. We have not

reviewed the merits of the motions.

       {¶ 31} Finally, appellant argues the court violated her due process rights by

failing to conduct a hearing on her motions for modification of custody and visitation.

“The fundamental requirement of procedural due process is notice and hearing, that is,

an opportunity to be heard.” Korn v. Ohio State Medical Board (1988), 61 Ohio App.3d

677, 684, 573 N.E.2d 1100, citing Luff v. State (1927), 117 Ohio St. 102, 157 N.E. 388.

Here the court stated it dismissed the matters for lack of jurisdiction, but it also reviewed

the motions, finding they did not state a change in circumstances. On the facts of this

case, we cannot find the court’s failure to conduct a hearing rises to the level of a

violation of appellant’s constitutional rights.

       {¶ 32} In conclusion, the first assignment of error is overruled. The second

assignment of error is sustained, and the third assignment of error is sustained as it
Stark County, Case No. 2011-CA-00072                                                    10


relates to the motion for custody and to restore visitation, and overruled as it relates to

the issues of child and spousal support.

       {¶ 33} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Stark County, Ohio, is affirmed in part and reversed in

part and the cause is remanded to the court for further proceedings in accord with law

and consistent with this opinion.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur


                                              _________________________________
                                              HON. W. SCOTT GWIN

                                              _________________________________
                                              HON. SHEILA G. FARMER

                                              _________________________________
                                              HON. PATRICIA A. DELANEY
[Cite as Dibble v. Dibble, 2011-Ohio-5803.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


NANCY DIBBLE,                                     :
                                                  :
                           Plaintiff-Appellant,   :
                                                  :
                                                  :
v.                                                :       JUDGMENT ENTRY
                                                  :
DANIEL DIBBLE,                                    :
                                                  :
                                                  :
                        Defendant-Appellee.       :       CASE NO. 2011-CA-00072




     For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Domestic Relations Division, of Stark County, Ohio, is

affirmed in part and reversed in part and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.          Costs to be split

between the parties.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER

                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
