[Cite as Lee v. Whitney, 2020-Ohio-978.]




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




KATHRYN M. LEE (nka TERRELL),

        PLAINTIFF-APPELLANT,                             CASE NO. 15-19-06

        v.

MITCHELL H. WHITNEY,                                     OPINION

        DEFENDANT-APPELLEE.




               Appeal from Van Wert County Common Pleas Court
                               Juvenile Division
                           Trial Court No. 21030098

                                     Judgment Affirmed

                            Date of Decision: March 16, 2020




APPEARANCES:

        Scott R. Gordon for Appellant

        Richard W. Miller, III for Appellee
Case No. 15-19-06



ZIMMERMAN, J.

        {¶1} Plaintiff-appellant, Kathryn M. Lee nka Kathryn M. Terrell

(“Kathryn”), appeals the August 16, 2019 judgment entry of the Van Wert County

Court of Common Pleas—Juvenile Division, granting the defendant-appellee,

Mitchell H. Whitney’s (“Mitchell”) motion for modification of parental rights and

responsibilities. For the reasons that follow, we affirm.

        {¶2} In 2004, the parties, who were never married to each other, had a son,

N.L., who is later referred to in the record as N.W. 1 (See Doc. No. 3, 4).

        {¶3} Kathryn filed a complaint on August 23, 2010 requesting the trial court

establish a parent-child relationship between Mitchell and N.L. as well as child- and

medical-support orders.2 (Doc. No. 1). On February 14, 2011, the trial court issued

a judgment entry finding Mitchell to be N.W.’s natural and biological father and

established child- and medical-support orders. (Doc. No. 21).

        {¶4} Mitchell filed a motion to establish visitation with N.W. on May 23,

2011. (Doc. No. 27). On November 8, 2011, the trial court journalized an order

reciting the agreement of the parties as to visitation. (Doc. No. 33). On May 11,

2015 and by agreement of the parties, the trial court issued an order modifying the


1
  The record is silent as to N.L.’s surname change; however, from the parentage-judgment entry forward the
trial court and the parties reference N.L. as N.W. (See Doc. No. 21).
2
  At all times relevant to this proceeding, Mitchell resided in Havelock, North Carolina and Kathryn in Van
Wert, Ohio. (Doc. No. 1). A child support enforcement agency administrative order establishing a parent-
child relationship between Mitchell and N.L. dated November 4, 2005 and a copy of genetic-test report were
attached to Kathryn’s complaint. (Doc. Nos. 3, 4).

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tax-dependency exemption for N.W. for the years 2013 and 2016, the summer

visitation schedule for N.W. for the years 2015 and 2016, granting Mitchell access

N.W.’s medical and educational records, regulating the phone-call schedule for the

parent who has physical custody of N.W., and implementing Mitchell’s visitation

with N.W. for Christmas 2015. (Doc. No. 45).

         {¶5} On August 4, 2015, Kathryn filed a motion for immediate order which

the trial court granted and a motion for contempt.                          (Doc. Nos. 49, 52, 53).

Subsequently and on August 6, 2015, Mitchell filed a motion for modification of

parental rights and responsibilities and for ex parte temporary orders.3 (Doc. Nos.

60, 69).      Ultimately, the trial court concluded that there was no change in

circumstances denying Mitchell’s motion and further found Mitchell in contempt

for interference with Kathryn’s custodial rights. (Doc. Nos. 60, 69, 126, 129).

         {¶6} Mitchell filed a second motion for modification of parental rights and

responsibilities, a motion for temporary custody, and a motion for in camera

interview of N.W. on June 14, 2018. (Doc. Nos. 132, 135, 154).                            After a hearing

on December 11, 2018, the magistrate issued his decision on December 28, 2018

concluding that a change in circumstances had occurred and that it was in N.W.’s



3
  Mitchell obtained an ex parte emergency temporary custody order of N.W. from the General Court of
Justice, District Court Division in Craven County, North Carolina. (Doc. No. 75). The trial court determined
under R.C. 3127.15 (titled Jurisdictional basis for initial custody determination) that the trial court had no
jurisdiction to make a determination in this proceeding pursuant to division (A)(1). (Doc. Nos. 91, 92).
Notably, R.C. 3127.15(A) provides “* * *a court of this state has jurisdiction to make an initial determination
in a child custody proceeding * * *”. (Emphasis added.) R.C. 3127.15(A).

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best interest that Mitchell be named residential parent and legal custodian of N.W.

subject to the parenting time set forth in the decision.4 (Doc. No. 181). Kathryn

objected to the magistrate’s decision and requested the preparation of a transcript

on January 10, 2019. (Doc. Nos. 197, 220). The trial court ordered the transcript

be prepared at Kathryn’s expense. (Doc. Nos. 221, 229, 233). Mitchell replied to

Kathryn’s objections to the magistrate’s decision on January 18, 2019. (Doc. No.

222).

         {¶7} On July 19, 2019, the trial court filed its judgment entry overruling

Kathryn’s objections to the magistrate’s decision without modification and ordering

the preparation of a judgment entry consistent with the magistrate’s decision. (Doc.

No. 282). Subsequently, the trial court journalized that judgment entry on August

16, 2019. (Doc. No. 290).

         {¶8} Kathryn filed her notice of appeal on September 16, 2019. (Doc. No.

301). She raises three assignments of error for our review. For ease of our

discussion, we will address them together.

                                    Assignment of Error No. I

         The Trial Court erred as a matter of law in finding that there had
         been a change in circumstances warranting modification of
         custody.
4
  In addition to the other determinations listed above, the magistrate’s decision established a current-child-
support order against Kathryn, terminated Mitchell’s current-child-support order, ordered Mitchell to
continue to pay child-support arrearages due and owing to Kathryn, granted Kathryn the tax-dependency
allocation for 2018 and even years thereafter and Mitchell for 2019 and odd years thereafter, and finally
allocated uncovered-medical expenses with Mitchell responsible for 80% of those expenses and Kathryn
20%. (Doc. No. 181).

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                            Assignment of Error No. II

       The Trial Court erred in finding that it is in the best interest of
       the minor child to grant custody to the Appellee.

                           Assignment of Error No. III

       The Trial Court erred as a matter of law in finding that the harm
       caused by the change of environment was outweighed by the
       advantages of the change of environment to the minor child.

       {¶9} In her assignments of error, Kathryn argues that the trial court abused

its discretion in modifying parental rights and responsibilities and naming Mitchell

as the residential parent and legal custodian. Specifically, in her first assignment of

error, she argues that there was no change in circumstances. She argues in her third

assignment of error that the trial court erred in finding that the harm caused by the

change of circumstances was outweighed by the advantages to N.W. And finally,

in her second assignment of error that the trial court erred in its application of the

best-interest factors under R.C. 3109.04(F)(1).

                                 Standard of Review

       {¶10} “[T]he juvenile court has exclusive original jurisdiction to determine

the custody of a child who is not a ward of another Ohio court.” Redmond v. Davis,

7th Dist. Columbiana No. 14 CO 37, 2015-Ohio-1198, ¶ 33, citing R.C.

2151.23(A)(2). See also Rowell v. Smith, 10th Dist. Franklin No. 12AP-802, 2013-




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Ohio-2216, ¶ 57. A juvenile court is to exercise its jurisdiction in a child-custody

matter in accordance with R.C. 3109.04. R.C. 2151.23(F)(1).

       {¶11} “‘Decisions concerning child custody matters rest within the sound

discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-

Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-

Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an

award of custody is supported by a substantial amount of credible and competent

evidence, such an award will not be reversed as being against the weight of the

evidence by a reviewing court.”’” Id., quoting Walker at ¶ 46, quoting Barto v.

Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol,

49 Ohio St.3d 21 (1990), syllabus, citing Trickey v. Trickey, 158 Ohio St. 9 (1952).

“‘“Accordingly, an abuse of discretion must be found in order to reverse the trial

court’s award of child custody.”’” Id., quoting Walker at ¶ 46, quoting Barto at ¶

25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “‘An abuse of discretion

suggests the trial court’s decision is unreasonable or unconscionable.’” Id., quoting

Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶12} Here, we observe that through her appellate brief, Kathryn

mischaracterizes the trial court’s August 16, 2019 judgment entry as a


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“modification” of an existing decree allocating Kathryn’s and Mitchell’s parental

rights. (E.g., Appellant’s Brief at 4-10) (“There was no a change in circumstances

in the child’s life sufficient to warrant a modification, and the trial court erred in

finding accordingly.”). We conclude that the trial court’s August 16, 2019 judgment

entry amounted to an original proceeding allocating parental rights and

responsibilities and not a proceeding for modification of a prior order of the court

making the allocation. (See Doc. Nos. 1, 21, 33, 45, 282, 290).

                                      Analysis

       {¶13} At the outset we note, that Kathryn has always been N.W.’s sole-

residential parent and legal custodian (by operation of law under R.C. 3109.042)

until the issuance of the judgment entry by the trial court on August 16, 2019. (See

Doc. No. 1, 21, 181, 282, 290). Because N.W. was born out of wedlock, custody of

N.W. was controlled by R.C. 3109.042 at the time Mitchell filed his second motion

for modification of parental rights and responsibilities on June 14, 2018. (See Doc.

Nos. 1, 21, 132). R.C. 3109.042 provides, in its pertinent part:

       (A) An unmarried female who gives birth to a child is the sole
       residential parent and legal custodian of the child until a court of
       competent jurisdiction issues an order designating another person as
       the residential parent and legal custodian. A court designating the
       residential parent and legal custodian of a child described in this
       section shall treat the mother and father as standing upon an equality
       when making the designation.

(Emphasis added.) R.C. 3109.042(A).


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         {¶14} Prior to the trial court’s entry of August 16, 2019, no court had issued

an order designating either Kathryn or Mitchell the residential parent and legal

custodian of N.W. 5 Thus, until the August 16, 2019 judgment entry, Kathryn served

as N.W.’s sole-residential parent and legal custodian by operation of law. See id.

Severns v. Foster, 3d Dist. Marion No. 9-18-21, 2019-Ohio-909, ¶ 16, citing In re

J.K., 7th Dist. Carroll No. 14 CA 899, 2014-Ohio-5502, ¶ 26, citing In re S.S.L.S.,

7th Dist. Columbiana No. 12 CO 8, 2013-Ohio-3026, ¶ 16, Maine v. Jones, 7th Dist.

Mahoning No. 06 MA 191, 2007-Ohio-5043, ¶ 55, 57, Francis v. Westfall, 7th Dist.

Jefferson Nos. 03-JE-20 and 03-JE-21, 2004-Ohio-4543, ¶ 15, and DeWitt v. Myers,

2d Dist. Clark No. 08-CA-86, 2009-Ohio-807, ¶ 14-16. Since Kathryn had custody

of N.W. by operation of law, the statutory scheme creates no presumption in her

favor when seeking an original order of custody. In re J.K. at 25-27, citing In re

S.S.L.S. at ¶ 16, (concluding “Even though the mother [of J.K.] may have had

custody via operation of law, there is no presumption in her favor when an original



5
  Supposing it may have been permissible for the trial court to recognize the January 4, 2016 judgment entry
denying Mitchell’s first motion for modification of parental rights and responsibilities as a ratification of a
de facto-custody order awarding custody to Kathryn because “[t]he trial court is in the best position to
determine [] its prior order[s]”, we decline to reach such a conclusion on the basis the November 8, 2011
order is problematic under Civ.R. 53 and it would undermine R.C. 3109.042 which expressly places the
mother and father on equal footing when the trial court makes the initial designation. (See Doc. Nos. 33,
129). In re S.W.-S., 2d Dist. Miami No. 2013 CA 17, 2013-Ohio-4823, *3. Compare In re A.N., 2d Dist.
Greene No. 2010 CA 83 and 2011 CA 7, 2011-Ohio-2422, ¶ 13, (concluding the trial court did not err in
finding the agreed entry constituted a de facto designation), and Self v. Turner, 3d Dist. Mercer No. 10-06-
07, 2006-Ohio-6197, ¶ 18 (Bryant, P.J., concurring in part and dissenting in part), (determining that
“[a]lthough there is no prior decree directly naming the residential parent” that the parents had a de facto-
custody arrangement which was ratified by the trial court’s prior order of child support identifying the obligee
as the residential parent and therefore the panel should have addressed whether there was a change in
circumstances under R.C. 3109.04(1)(a)(iii)).

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order of custody is sought.”). Compare Self v. Turner, 3d Dist. Mercer No. 10-06-

07, 2006-Ohio-6197, ¶ 8, citing R.C. 3109.04 and In re Knight, 11th Dist. Trumball

No. 2002-T-0158, 2003-Ohio-7222, ¶ 17, (differentiating R.C. 3109.04’s strong

presumption in favor of retaining the present-residential parent from R.C.

3109.042’s requirement to treat each parent as standing upon equal footing). Thus,

we conclude that when a mother acquires custody by operation of law under R.C.

3109.042 that such custody is analogous to a temporary order of custody. See In re

J.K. at ¶ 27, citing Civ.R. 75(N)(1).

       {¶15} Modifications of custody under R.C. 3109.04(E) are not applicable to

temporary orders. Id., citing Gomez v. Gomez, 7th Dist. No. 06 NO 330, 2007-Ohio-

1559, ¶ 13-16, Schmidli v. Schmidli, 7th Dist. No. 02 BE 63, 2003-Ohio-3274, ¶ 21-

22, and State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 554-555 (1998).         In

accordance, the trial court’s August 16, 2019 judgment entry is not a “modification”

within the meaning of R.C. 3109.04(E), but rather the product of an original

proceeding to allocate the parental rights and responsibilities of N.W.’s parents. See

Severns at ¶ 16.     Consequently, the required demonstration of a change in

circumstances under R.C. 3109.04(E)(1)(a) is not germane to the facts before us. In

re J.K. at ¶ 29. Accordingly, it is our conclusion that a change in circumstances is

not required under the facts presented, and thus Kathryn’s first and third

assignments of error are rendered moot. Self at ¶ 16. See App.R. 12(A)(1)(c).


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       {¶16} We now analyze the trial court’s decree allocating parental rights and

responsibilities in an original proceeding. Under these circumstances, the trial court

need only base its determination on what was in N.W.’s best interest under R.C.

3109.04(B)(1). Following R.C. 3109.04(B)(1), the trial court must apply the best-

interest test under R.C. 3109.04(F) and consequently the factors listed under

division (F)(1). Therefore, we will address Kathryn’s second assignment of error

related to the trial court’s application of the best-interest factors.

       {¶17} As an initial matter, Mitchell filed a motion for in camera interview of

N.W which the trial court granted. (Doc. No. 90). (See Doc. No. 181). Because

the trial court interviewed N.W. under division (B)(1), division (B)(2) required the

trial court to consider (B)(2)(a)-(c) in addition to R.C. 3109.04(F)(1).            R.C.

3109.04(B)(1), (B)(2)(a)-(c).

       R.C. 3109.04(B)(2) states:

       (a) The court, in its discretion, may and, upon the motion of either
       parent, shall appoint a guardian ad litem for the child.

       (b) The court first shall determine the reasoning ability of the child.
       If the court determines that the child does not have sufficient
       reasoning ability to express the child’s wishes and concern with
       respect to the allocation of parental rights and responsibilities for the
       care of the child, it shall not determine the child’s wishes and concerns
       with respect to the allocation. If the court determines that the child has
       sufficient reasoning ability to express the child’s wishes or concerns
       with respect to the allocation, it then shall determine whether, because
       of special circumstances, it would not be in the best interest of the
       child to determine the child’s wishes and concerns with respect to the
       allocation. If the court determines that, because of special

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          circumstances, it would not be in the best interest of the child to
          determine the child’s wishes and concerns with respect to the
          allocation, it shall not determine the child's wishes and concerns with
          respect to the allocation and shall enter its written findings of fact and
          opinion in the journal. If the court determines that it would be in the
          best interests of the child to determine the child’s wishes and concerns
          with respect to the allocation, it shall proceed to make that
          determination.

          (c) The interview shall be conducted in chambers, and no person
          other than the child, the child’s attorney, the judge, any necessary
          court personnel, and, in the judge’s discretion, the attorney of each
          parent shall be permitted to be present in the chambers during the
          interview.

R.C. 3109.04(B)(2)(a)-(c). In addressing division (B)(2)(a), the trial court did not

sua sponte appoint a guardian ad litem (“GAL”) nor did Kathryn or Mitchell request

the appointment of a GAL. Our review of the record confirms that in conducting

its interview of N.W., the trial court considered divisions (B)(2)(b) and (c). (Dec.

11, 2018 Tr. at 1-2). (See Doc. No. 181, 182, 183, 184).

          {¶18} Next, we turn to the trial court’s consideration of the best-interest

factors found in R.C. 3109.04(F)(1) when it designated Mitchell N.W.’s residential

parent.

          R.C. 3109.04(F)(1) provides that:

          (F)(1) In determining the best interest of a child pursuant to this
          section, whether on an original decree allocating parental rights and
          responsibilities for the care of children or a modification of a decree
          allocating those rights and responsibilities, the court shall consider all
          relevant factors, including, but not limited to:

          (a) The wishes of the child’s parents regarding the child’s care;

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      (b) If the court has interviewed the child in chambers pursuant to
      division (B) of this section regarding the child’s wishes and concerns
      as to the allocation of parental rights and responsibilities concerning
      the child, the wishes and concerns of the child, as expressed to the
      court;

      (c) The child’s interaction and interrelationship with the child’s
      parents, siblings, and any other person who may significantly affect
      the child’s best interest;

      (d) The child’s adjustment to the child’s home, school, and
      community;

      (e) The mental and physical health of all persons involved in the
      situation;

      (f) The parent more likely to honor and facilitate court-approved
      parenting time rights or visitation and companionship rights;

      (g) Whether either parent has failed to make all child support
      payments, including all arrearages, that are required of that parent
      pursuant to a child support order under which that parent is an obligor;

      (h) Whether either parent or any member of the household of either
      parent previously has been convicted of or pleaded guilty to any
      criminal offense involving any act that resulted in a child being an
      abused child or a neglected child; whether either parent, in a case in
      which a child has been adjudicated an abused child or a neglected
      child, previously has been determined to be the perpetrator of the
      abusive or neglectful act that is the basis of an adjudication; whether
      either parent or any member of the household of either parent
      previously has been convicted of or pleaded guilty to a violation of
      section 2919.25 of the Revised Code or a sexually oriented offense
      involving a victim who at the time of the commission of the offense
      was a member of the family or household that is the subject of the
      current proceeding; whether either parent or any member of the
      household of either parent previously has been convicted of or
      pleaded guilty to any offense involving a victim who at the time of the
      commission of the offense was a member of the family or household

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       that is the subject of the current proceeding and caused physical harm
       to the victim in the commission of the offense; and whether there is
       reason to believe that either parent has acted in a manner resulting in
       a child being an abused child or a neglected child;

       (i) Whether the residential parent or one of the parents subject to a
       shared parenting decree has continuously and willfully denied the
       other parent's right to parenting time in accordance with an order of
       the court;

       (j) Whether either parent has established a residence, or is planning
       to establish a residence, outside this state.

(Emphasis added.) R.C. 3109.04(F)(1).

       {¶19} In consideration of the relevant-statutory factors, the record supports

that the magistrate considered R.C. 3109.04(E)(1)(a) and R.C. 3109.051(D) but not

R.C. 3109.04(F)(1). (Doc. No. 187). However, the trial judge in conducting an

independent review, made specific findings under R.C. 3109.04(F)(1)(a)-(e), and (j)

and found that divisions (f), (g), (h), and (i) were not applicable to the contested

issues before the trial court. (Doc. Nos. 286, 287, 288). From our review of the

record from the motion hearing held on December 11, 2019, we conclude that the

trial court did not err in establishing Mitchell as the sole-residential parent and legal

custodian of N.W.

       {¶20} A trial court’s determination of what is in the best interest of the child

will not be reversed absent an abuse of discretion. Errington v. Errington, 3d Dist.

Wyandot No. 16-01-17, 2002-Ohio-1419, *2. This standard requires that the trial

court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or

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unconscionable,” because the trial judge is best equipped to determine and weigh

the credibility of the proffered testimony. Davis v. Flickinger, 77 Ohio St.3d 415,

416-418 (1997); Blakemore, 5 Ohio St.3d at 219.

       {¶21} In deciding whether to grant Mitchell’s motion for modification of

parental rights and responsibilities, the trial court considered whether such a request

was appropriate and in N.W.’s best interest by weighing all of the relevant factors.

See R.C. 3109.04(F)(1)(a)-(j). The trial court noted the competing wishes of each

parent regarding N.W.’s care. (Doc. No. 288). See R.C. 3109.04(F)(1)(a). The trial

court found that N.W. (after two in camera interviews) was “adamant” regarding his

desire to live with Mitchell and his family in North Carolina. (Doc. No. 288). See

R.C. 3109.04(F)(1)(b). The trial court determined that N.W. has strong bonds,

loving relationships, and is well integrated in both parent’s households which

includes other positive relationships with a paternal-sister-in-law and step-brother.

(Doc. No. 288). See R.C. 3109.01(F)(1)(c). Next, the trial court considered that

N.W. was acclimated to both parent’s homes and communities. (Doc. No. 288).

See R.C. 3109.01(F)(1)(d). Significantly, N.W.’s principal testified that N.W. was

capable of making the “transition to a new school”; despite residing in Van Wert,

Ohio his entire life.         (Doc. No. 288).          See R.C. 3109.01(F)(1)(d).

Finally, the trial court considered that the father resides in North Carolina. (Id.).

See R.C. 3109.01(F)(1)(j).


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       {¶22} After a review of the record, we cannot say that the trial court’s

balancing of the relevant-statutory factors was arbitrary, unreasonable, or

unconscionable. Accordingly, we find that there is competent, credible evidence to

support the trial court’s findings and therefore the trial court did not abuse its

discretion in determining that Mitchell should be named as the sole-residential

parent and legal custody of his son, N.W.

       {¶23} For these reasons, Kathryn’s second assignment of error is overruled.

       {¶24} 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

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

/jlr




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