[Cite as Merriman v. Merriman, 2016-Ohio-3385.]




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




JACOB J. MERRIMAN,

        PLAINTIFF-APPELLEE,                             CASE NO. 11-15-10

        v.

KATELYN A. MERRIMAN n.k.a. MAAG,                        OPINION

        DEFENDANT-APPELLANT.




               Appeal from Paulding County Common Pleas Court
                          Domestic Relations Division
                          Trial Court No. DIS12-223

                                    Judgment Affirmed

                            Date of Decision: June 13, 2016




APPEARANCES:

        Jennifer N. Brown for Appellant

        Matthew A. Cunningham for Appellee
Case No. 11-15-10


PRESTON, J.

       {¶1} Plaintiff-appellant, Katelyn A. Merriman, n.k.a. Katelyn A. Maag,

(“Katelyn”), appeals the December 15, 2015 decision of the Paulding County

Court of Common Pleas, Domestic Relations Division, reallocating Katelyn’s and

defendant-appellee’s, Jacob J. Merriman (“Jacob”), parental rights and

responsibilities. For the reasons that follow, we affirm.

       {¶2} Jacob and Katelyn were married on August 17, 2010. (Doc. No. 1).

Jacob and Katelyn filed a petition for dissolution of their marriage on October 26,

2012. (Id.). One child, (“K.M.”), was born as issue of this marriage. (Id.). The

trial court issued its final dissolution decree on February 26, 2013. (Doc. No. 9).

In that, the trial court adopted the parties’ separation agreement, which provided,

with respect to K.M.:

       [Jacob] and [Katelyn] mutually agree no * * * child support shall be

       paid to or by either party. [Jacob] shall be designated residential

       parent of [K.M.]. [Katelyn] shall have parenting time as follows:

            First Friday of each month at 6 p.m. until the following

       Monday at 6 p.m. and on the following Wednesday at 6 p.m. until

       the following Friday at 6 p.m. and continuing on alternating 48 hour

       periods.    [Jacob] shall have parenting time on the opposite

       alternasting [sic] 48 hour periods in conformity with the above.


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         [K.M.] shall remain in the Wayne Trace School District. [Katelyn]

         shall carry medical insurance on [K.M.] and the parties shall pay

         equally any amounts uncovered by insurance. The parties shall pay

         equally all amounts for school activities, fees, etc. [Jacob] shall pay

         all day care expenses for [K.M.].

(Id.).

         {¶3} On August 15, 2014, Katelyn filed a motion for reallocation of

parental rights and responsibilities.     (Doc. No. 10).     In her motion, Katelyn

requested that the trial court conclude that it is in K.M.’s best interests that

Katelyn “be designated as the residential parent and legal custodian of [K.M.]”

and that her residence determine which school district K.M. is to attend. (Id.).

         {¶4} On August 20, 2014, Jacob filed a motion requesting that the trial

court appoint a guardian ad litem (“GAL”) to represent K.M.’s best interest. (Doc.

No. 17).     The trial court granted Jacob’s motion and appointed a GAL on

September 2, 2014. (Doc. No. 18).

         {¶5} On September 29, 2014, the trial court ordered the parties to continue

the “parenting plan” as ordered in the final dissolution decree. (Doc. No. 21).

         {¶6} On July 30, 2015, the GAL filed her confidential report. (Confidential

GAL Report). (See also Doc. No. 39).




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      {¶7} The trial court held a bench trial on August 11, 2015. (Aug. 11 and

14, 2015 Tr. at 1, 4). The trial court issued an oral decision on August 14, 2015.

(Aug. 11 and 14, 2015 Tr. at 1, 216).

      {¶8} On August 20, 2015, Katelyn filed a motion requesting findings of

fact and conclusions of law, which the trial court issued on September 24, 2015.

(Doc. Nos. 42, 46). The trial court filed its judgment entry on December 15, 2015.

(Doc. No. 49).

      {¶9} Katelyn filed her notice of appeal on December 28, 2015. (Doc. No.

50). She raises one assignment of error for our review.

                              Assignment of Error

      The Paulding County Court of Common Pleas Abused its
      Discretion in Designating Appellee the Residential Parent for
      School Purposes and Primarily Awarding Appellee Parenting
      Time During the School Year Without Consideration or
      Addressing in its Ruling That the Guardian Ad Litem’s
      Recommendations Were in Direct Conflict to the Court’s
      Decision.

      {¶10} In her assignment of error, Katelyn argues that the trial court abused

its discretion in reallocating parental rights and responsibilities. In particular,

Katelyn argues that the trial court abused its discretion because it failed “to

consider anywhere in its decision and anywhere in its discussion of the [R.C.

3109.04(F)(1) factors] any of the Guardian Ad Litem recommendations, especially




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considering the Guardian Ad Litem recommendations were polar opposite of the

trial court’s ruling.” (Appellant’s Brief at 9-10).

       {¶11} “Revised Code 3109.04 governs the trial court’s award of parental

rights and responsibilities.” August v. August, 3d Dist. Hancock No. 5-13-26,

2014-Ohio-3986, ¶ 22, citing King v. King, 3d Dist. Union No. 14-11-23, 2012-

Ohio-1586, ¶ 8. R.C. 3109.04(E)(1)(a) governs modification of a prior decree

allocating parental rights and responsibilities and provides:

       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, 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:




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      (i)   The residential parent agrees to a change in the residential

      parent or both parents under a shared parenting decree agree to a

      change in the designation of residential parent.

      (ii) The child, with the 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.

      (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.

      The statute creates a strong presumption in favor of retaining the

      residential parent designation and precludes a trial court from

      modifying a prior parental rights and responsibilities decree unless

      the court finds all of the following: (1) a change occurred in the

      circumstances of the child, the child’s residential parent, or a parent

      subject to a shared-parenting decree; (2) the change in circumstances

      is based upon facts that arose since the court entered the prior decree

      or that were unknown to the court at the time of the prior decree; (3)

      the child’s best interest necessitates modifying the prior custody

      decree; and (4) one of the circumstances specified in R.C.

      3109.04(E)(1)(a)(i)-(iii) applies.


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Rohrbach v. Rohrbach, 3d Dist. Seneca No. 13-15-14, 2015-Ohio-4728, ¶ 15,

citing In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 14. “Thus,

the threshold question in a parental rights and responsibilities modification case is

whether a change in circumstances has occurred.” Id.

       {¶12} “‘In determining whether a change in circumstances has occurred so

as to warrant a change in custody, a trial judge, as the trier of fact, must be given

wide latitude to consider all issues which support such a change.’” Id. at ¶ 16,

quoting Davis v. Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the

syllabus. “The determination that a change in circumstances has occurred for the

purposes of R.C. 3109.04 ‘should not be disturbed, absent an abuse of

discretion.’” Id., quoting Davis at paragraph one of the syllabus. “‘An abuse of

discretion suggests the trial court’s decision is unreasonable or unconscionable.’”

Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 26, 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). “However, the trial

court’s discretion is not absolute, and it must abide by R.C. 3109.04 in making

decisions concerning custody.” Rohrbach at ¶ 16, citing Erwin v. Erwin, 3d Dist.

Union No. 14-04-37, 2005-Ohio-1603, ¶ 7, citing Miller v. Miller, 37 Ohio St.3d

71, 74 (1988).




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       {¶13} “The statute requires that in allocating the parental rights and

responsibilities, the court ‘shall take into account that which would be in the best

interest of the child[].’” August, 2014-Ohio-3986, at ¶ 22, citing Self v. Turner, 3d

Dist. Mercer No. 10-06-07, 2006-Ohio-6197, ¶ 6, quoting R.C. 3109.04(B)(1).

R.C. 3109.04(F)(1) describes ten factors that the trial court shall consider to

determine the best interest of the child and provides:

       In determining the best interest of a child [under R.C. 3109.04],

       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;

       (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;


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      (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


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      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 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.

R.C. 3109.04(F)(1)(a)-(j). “Any additional relevant factors shall be considered as

well.” August at ¶ 23, citing R.C. 3109.04(F)(1) and (2).




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       {¶14} Decisions concerning child-custody matters also rest within the

sound discretion of the trial court. Krill, 2014-Ohio-2577, at ¶ 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, 37

Ohio St.3d at 74. “‘“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.

“‘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, citing Barto at ¶ 25

and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994).

       {¶15} “The trial court ‘has discretion in determining which factors are

relevant,’ and ‘each factor may not necessarily carry the same weight or have the

same relevance, depending upon the facts before the trial court.’” Id. at ¶ 29,

quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶

41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51.

“Although the trial court must consider all relevant factors, there is no requirement

that the trial court set out an analysis for each of the factors in its judgment entry,

so long as the judgment entry is supported by some competent, credible evidence.”


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Id., citing Meachem, 2011-Ohio-519, at ¶ 30, citing Portentoso v. Portentoso, 3d

Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22. “‘[A]bsent evidence to the

contrary, an appellate court will presume the trial court considered all of the

relevant “best interest” factors listed in R.C. 3109.04(F)(1).’” Meachem at ¶ 32,

citing Goodman v. Goodman, 3d Dist. Marion No. 9-04-37, 2005-Ohio-1091, ¶ 18.

      {¶16} “Additionally, we note that the trier of fact is in the best position to

observe the witnesses, weigh evidence, and evaluate testimony.”          Walton v.

Walton, 3d Dist. Union No. 14-10-21, 2011-Ohio-2847, ¶ 20, citing Clark v.

Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 23, citing In re Brown, 98

Ohio App.3d 337 (3d Dist.1994). “Therefore, ‘“[a] reviewing court should not

reverse a decision simply because it holds a different opinion concerning the

credibility of the witnesses and evidence submitted before the trial court. A

finding of an error in law is a legitimate ground for reversal, but a difference of

opinion on credibility of witnesses and evidence is not.”’” Id., quoting Clark at ¶

23, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81 (1984).

      {¶17} The parties do not dispute that the trial court made the appropriate

change-of-circumstances findings; rather, the parties dispute only whether the trial

court abused its discretion in designating Jacob as K.M.’s residential parent for

school purposes without discussing why it was disagreeing with the GAL’s

recommendation.     Accordingly, we will address only whether the trial court


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abused its discretion by not specifically addressing in its best-interest analysis why

it was not following the GAL’s recommendation.

       {¶18} As an initial matter, Katelyn failed to cite any authority in support of

her argument other than loosely referring to Rule 48 of the Rules of

Superintendence.       “[W]e     have   previously   held   that   ‘[t]he   Rules   of

Superintendence “do not have the same force as a statute or case law, but are

rather purely internal housekeeping rules which do not create substantive rights in

individuals or procedural law.”’” Castanien v. Castanien, 3d Dist. Wyandot No.

16-12-08, 2013-Ohio-1393, ¶ 25, quoting Heilman v. Heilman, 3d Dist. Hardin

No. 6-12-08, 2012-Ohio-5133, ¶ 33, quoting Elson v. Plokhooy, 3d Dist. Shelby

No. 17-10-24, 2011-Ohio-3009, ¶ 40. Therefore, Katelyn’s “reliance on the Rules

of Superintendence under our own case law is misplaced as the rules do not create

rights.” Id. This court overruled assignments of error for relying solely on the

Rules of Superintendence. Id., citing Heilman ¶ 33-34 and Elson ¶ 40-41. As

such, Katelyn’s assignment of error fails to raise any reversible error of law. See

id.; Heilman ¶ 33; Elson ¶ 40.

       {¶19} Even were we to consider Katelyn’s argument in the interest of

justice, we would conclude that her argument is meritless. “‘[A] trial court is not

bound to follow a guardian ad litem’s recommendation.’” Bomberger-Cronin v.

Cronin, 2d Dist. Greene, No. 2014-CA-4, 2014-Ohio-2302, ¶ 27, quoting Lumley


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v. Lumley, 10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, ¶ 46. See also

Castanien at ¶ 26. “‘The function of a guardian ad litem is to consider the best

interests of a child and to make a recommendation to the court, but the ultimate

decision in any proceeding is for the judge, and the trial court does not err in

making an order contrary to the recommendation of the guardian ad litem.’”

Koller v. Koller, 2d Dist. Montgomery No. 22328, 2008-Ohio-758, ¶ 24, quoting

In re D.W. and D.W., 2d Dist. Montgomery No. 21630, 2007-Ohio-431, ¶ 24 .

       “As the fact finder, the trial court determines the guardian ad litem’s

       credibility and the weight to be given to the guardian ad litem’s

       recommendation. Because assessment of the credibility and weight

       of the evidence is reserved for the trial court, we will not second

       guess the court’s decision to disregard the guardian ad litem’s

       recommendation.”

Cronin at ¶ 27, quoting Lumley at ¶ 46, citing Davis, 77 Ohio St.3d at 419.

Katelyn concedes in her reply brief that the trial court is free to disagree with the

GAL’s recommendation. (Appellant’s Reply Brief at 4). Yet she argues that the

trial court abused its discretion by disagreeing with the GAL’s recommendation

“without at least some explanation and rationalization.” (Id.).

       {¶20} Despite Katelyn’s argument, the trial court explicitly addressed its

best-interest findings. See Krill, 2014-Ohio-2577, at ¶ 29. Indeed, the trial court


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considered the GAL’s report, as well as the testimony and evidence presented at

the August 11, 2015 hearing, and weighed that evidence with the R.C. 3109.04

factors. (Aug. 11 and 14, 2015 Tr. at 217); (Doc. Nos. 46, 49). Therefore, the trial

court did not abuse its discretion in designating Jacob as K.M.’s residential parent

for school purposes.

       {¶21} To the extent that Katelyn argues that the trial court abused its

discretion by disagreeing with the GAL’s recommendation, her argument is also

meritless. The GAL recommended in her July 30, 2015 written report, and at the

August 11, 2015 hearing, that Katelyn be designated as K.M.’s residential parent

for school purposes. (Confidential GAL Report); (Aug. 11 and 14, 2015 Tr. at

26). The parties had the opportunity to cross-examine the GAL at the hearing.

See In re Z.B., 2d Dist. Champaign No. 09-CA-42, 2010-Ohio-3335, ¶ 36. The

trial court apparently found the GAL’s report and testimony less credible than the

evidence that Jacob should be designated as K.M.’s residential parent for school

purposes, which it was free to do. See Matter of Oard, 3d Dist. Putnam No. 12-

82-4, 1983 WL 4546, *4 (Dec. 28, 1983) (“the ultimate decision was for the trial

court [and] the trial court did not err in arriving at a decision other than that

recommended by the guardian ad litem”).

       {¶22} Notwithstanding the GAL’s recommendation, the trial court

concluded that it is in K.M.’s best interest to designate Jacob as K.M.’s residential


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parent for school purposes. In particular, the trial court found the following R.C.

3109.04(F)(1) factors relevant to its decision: R.C. 3109.04(F)(1)(a), Jacob and

Katelyn both expressed a desire to be K.M.’s residential parent for school

purposes; R.C. 3109.04(F)(1)(c), K.M. has healthy relationships with Jacob and

Katelyn and a “significant relationship with her paternal grandparents”; R.C.

3109.04(F)(1)(d), K.M. has been exclusively raised in Payne, Ohio and attended

pre-school in the Wayne Trace School District; R.C. 3109.04(F)(1)(h), Jacob and

his girlfriend have a history of domestic violence, but that incident did not involve

K.M., and K.M. was not present during the altercation; R.C. 3109.04(F)(1)(j),

while neither parent presented evidence that they intended to move outside the

state, the trial court considered Katelyn’s move to Ottawa, Ohio as the reason for

her motion requesting the reallocation of parental rights and responsibilities

regarding the school district that K.M. is to attend. (Doc. No. 46). The trial court

concluded that R.C. 3109.04(b), (e), (f), (g), and (i) are inconsequential to its best-

interest analysis. (Id.). The trial court further found that Katelyn’s move to

Ottawa, Ohio “appears to be only a temporary move until she moves onto her next

relationship” and that “[k]eeping [K.M.] within the Wayne Trace School system is

the most stable alternative at this time [since K.M.] attended pre-school within the

Wayne Trace School system.” (Id.).




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       {¶23} Nevertheless, Katelyn appears to further argue, without citation to

authorities, that the trial court abused its discretion by designating Jacob as K.M.’s

residential parent for school purposes by essentially permitting K.M.’s paternal

grandparents to assert “their rights via a back door” because evidence was

presented at the August 11, 2015 hearing that K.M.’s paternal grandparents “were

acting for their son as ‘parents’ during his parenting time.” (Appellant’s Brief at

19). Katelyn’s argument is misplaced.

       {¶24} One of the best-interest factors that the trial court is to consider is

“[t]he child’s interaction and interrelationship with * * * any other person who

may significantly affect the child’s best interest.” R.C. 3109.04(F)(1)(c). Indeed,

the trial court found that Jacob and Katelyn both played a role in the significant

relationship that K.M. has with her paternal grandparents. (Doc. No. 46). In

particular, the trial court found that Katelyn used K.M.’s paternal grandparents for

child care to provide Katelyn time without K.M. to pursue her own interests. (Id.).

Katelyn appears to further challenge the trial court’s decision by arguing that the

trial court placed too much weight on K.M.’s relationship with her paternal

grandparents. However, it is within the trial court’s discretion to determine which

factors are relevant and the weight each factor carries based on the facts before it.

Krill, 2014-Ohio-2577, at ¶ 29. Accordingly, it was not an abuse of discretion for

the trial court to consider K.M.’s relationship with her paternal grandparents in its


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best-interest analysis and decision to designate Jacob as K.M.’s residential parent

for school purposes. See Heilman, 2012-Ohio-5133, at ¶ 29 (considering the close

bond the child formed with his great-grandparents, who cared for him while his

mother was working, in the trial court’s best-interest analysis); August, 2014-

Ohio-3986, at ¶ 24 (considering the child’s “strong and continuing relationship

with his paternal grandparents” in the trial court’s best-interest analysis).

       {¶25} Therefore, the trial court did not abuse its discretion in designating

Jacob as K.M.’s residential parent for school purposes.

       {¶26} Katelyn’s assignment of error is overruled.

       {¶27} 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., concurs.



ROGERS, J., Concurring Separately.

       {¶28} I concur with the result reached by the majority on the specific issue

contained in Appellant’s sole assignment of error. I write separately to address an

apparent oversight by the trial court.

       {¶29} The motion before the court was the reallocation of parental rights

and responsibilities. As noted by the majority, a change of residential parent


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requires a finding of a change of circumstances. Nowhere in the trial court’s

judgment entry or its findings of fact and conclusions of law is any mention made

of a change of circumstances.       This omission is immaterial to the specific

assignment of error because the trial court retained the same residential parent for

school purposes as was designated in the original shared parenting order.

        {¶30} However, the trial court did change the designation of primary

residential parent from father only to each parent being the residential parent when

the child is in their care. Such a change would require a finding of a change of

circumstances, as well as other findings pursuant to R.C. 3109.04(E)(1)(a).

Absent the required findings, the change of designation of primary residential

parent is error.

        {¶31} However, the lack of the necessary findings was not raised by either

party, and the Appellee failed to file a cross-appeal, so that issue has become

moot.

/jlr




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