[Cite as Martin v. Martin, 2015-Ohio-4803.]




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



RICK MARTIN,
                                                         CASE NO. 12-14-12
       PLAINTIFF-APPELLEE,

      v.

JENNIFER MARTIN,                                         OPINION

       DEFENDANT-APPELLANT.


                 Appeal from Putnam County Common Pleas Court
                           Trial Court No. 2011-DIV-140

                                     Judgment Affirmed

                          Date of Decision: November 23, 2015



APPEARANCES:

        N. Shannon Bartels for Appellant
Case No. 12-14-12


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jennifer Martin (“Jennifer”) brings this appeal

from the judgment of the Court of Common Pleas of Putnam County denying her

motion to modify parental rights and responsibilities.        Jennifer claims that the

trial court erred in finding that there had been no change of circumstances and

determining that it would be in the best interest of the children to remain in the

custody of plaintiff-appellee Rick Martin (“Rick”).      For the reasons set forth

below, the judgment is affirmed.

                             Procedural Background

       {¶2} Rick and Jennifer were married on March 27, 1998. Doc. 1. During

the marriage, five children were born: Makhayla (2002), Tyler (2004), Kaidan

(2006), Emily (2007), and Ronald (2008).        On June 27, 2011, Rick filed a

complaint for divorce. The trial court granted the divorce on November 17, 2011.

Doc. 22. The decree of divorce incorporated the separation agreement of the

parties as part of its order. Id. Part of the agreement was a shared parenting plan.

Pursuant to the plan, the children stayed with Rick from Friday until Tuesday and

with Jennifer from Tuesday until Friday. Id. The agreement also provided for

holiday parenting time and summer vacation time. Id. The agreement stated that

the children would attend school in the Columbus Grove School District. Id.

Additionally, the parties each waived child support due to the time spent with the

children and the in kind contributions of each of them. Id.

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      {¶3} On August 23, 2013, Jennifer filed a motion to modify parental rights

and responsibilities. Doc. 29. The motion was based upon the fact that Rick had

moved to Lima and she has moved to Toledo, that Rick was unemployed, that

Rick, his girlfriend, Ashley Morales (“Ashley”), and another couple were living

along with the children in a two bedroom apartment, that Rick was allowing

underage drinking parties to occur at his residence, and that he has allowed the

children to get second degree sunburns while in North Carolina.           Id.   On

September 12, 2013, Rick filed a motion for an emergency ex parte order

requiring Jennifer to return the children to him from Toledo so they could go to

school in the Columbus Grove School District. Doc. 33. The trial court granted

Rick’s motion on September 16, 2013. Doc. 39.

      {¶4} On September 17, 2013, the trial court appointed Kim Affholder

(“Affholder”) as the Guardian Ad Litem of the children. Doc. 41. A hearing was

held on October 31, 2013, on Jennifer’s motion. Doc. 50. The parties entered an

agreed entry which was approved by the trial court.         Id.   Pursuant to the

agreement, Rick was designated the residential parent of the children. Id. Jennifer

was granted companionship time at her mother’s home “until such time as

[Jennifer] either no longer lives with Eric Rivera [(“Rivera”)]or moves to a

separate home of her own or until such time as [Rivera] is cleared via the Children

Services investigation and [Affholder] has the opportunity to go and view the



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home of the parties and make sure it is appropriate and [Affholder] approves the

home as appropriate for the children.” Id. at 2.

       {¶5} On July 16, 2014, Jennifer filed a second motion to modify parental

rights and responsibilities. Doc. 55. The basis for the motion included that Rick

had “basically” relocated to North Carolina in May of 2014 without court

permission, that he left the children with Ashley’s sister, Sonya Morales (“Sonya”)

or Sonya’s 13 year old daughter who was responsible for watching six other

children while the adults were working, that he did not bring the children back to

Ohio with him on his trips home, that he would not give Jennifer an address or

telephone number of where they were staying, that Rick was refusing to give her

visitations by not bringing the children back from North Carolina, by refusing to

let the children talk to her on the phone, or by only bringing three of the children

for the visits when he does come back to Ohio. Jennifer also claimed that Rick

was neglecting the children’s medical needs by failing to get their eyes checked

and obtain the glasses required. Jennifer claimed that Rick was not caring for the

children and getting them to school on time, that he is allowing his girlfriend to

use corporal punishment on the children in opposition of the court order, and by

allowing the children to ride in the car without wearing seatbelts, which resulted in

injuries to the children when they were in an automobile accident. As a result of

the above, Jennifer alleged that Rick’s care has affected the mental health of the

children negatively.    On August 18, 2014, the trial court again appointed

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Affholder as the guardian ad litem for the children. Doc. 70. On September 2,

2014, Rick notified the trial court of his intent to move to Fort Jennings, Ohio

from his last known address in Bluffton, Ohio. Doc. 73. On October 2, 2014,

Jennifer filed her notice of intent to relocate from Toledo, Ohio to Columbus

Grove, Ohio. Doc. 79. A hearing was held on Jennifer’s motion to modify

parental rights and responsibilities on October 9, 2014. Doc. 86. The trial court

ruled that there was no change of circumstances for the children and that

remaining in the custody of Rick was in the children’s best interests. Id. Jennifer

appeals from this judgment and raises the following assignment of error.

          The trial court erred in finding that no change in circumstance
          had occurred relative to the parties or their minor children since
          the issuance of the prior parenting decree and finding that it is
          in the best interests of the minor children that they remain in the
          care and custody of [Rick].

          {¶6} The sole compound assignment of error questions whether the trial

court erred in denying the motion to modify the designation of the residential

parent.      The modification of a prior decree allocating parental rights and

responsibilities is governed by R.C. 3109.04.

          (E)(1)(a) The court shall not modify a prior decree allocating
          parental rights and responsibilities for the care of children
          unless it finds, based on facts that have arisen since the prior
          decree or that were unknown to the court at the time of the prior
          decree, that a change has occurred in the circumstances of the
          child, the child’s residential parent, or either of the parents
          subject to a shared parenting decree, 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

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       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:

       (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.


R.C. 3109.04. Jennifer alleges that the evidence showed that there was a change

of circumstance in the children’s living conditions and that it would be in the

children’s best interests to name her the residential parent.

                             Change of Circumstances

       {¶7} The first question before the trial court was whether there was a

change of circumstances since the last hearing date. Brammer v. Brammer, 194

Ohio App.3d 240, 2011-Ohio-2610, ¶17, 955 N.E.2d 453 (3d Dist). This finding

must be made before the trial court determines what is in the best interest of the

children. Id. Additionally, the change must be one of substance, not one that is

slight or inconsequential. Id. at ¶18. The change must have a material effect on

the child. Id.



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      {¶8} The last decree allocating parental rights and responsibilities, filed

prior to the motion to modify that decree, was filed on January 17, 2014, and was

an agreed entry. Doc. 50. At that time, Rick and the children resided with his

mother. Tr. 21. The motion to modify that decree was filed on July 16, 2014,

alleged that Rick had generally relocated the children to North Carolina without

notice to the court, that he was leaving the children without adult supervision

during the day, and that Rick would not provide Jennifer with an address or phone

number where the children were staying. Jennifer also alleged that Rick was

interfering with her visitation and that Ashley was using corporal punishment on

the children although such punishment was prohibited by the prior decree.

      {¶9} At the hearing on the motion before this court, Rick testified that he

and the children had moved out of his mother’s home after a disagreement with his

mother concerning his relationship with Ashley. Tr. 23. He did not have housing

at that time and bounced between staying with Sonya in North Carolina and living

in a tent in a friend’s backyard. Tr. 13-18. Once the children began school, they

stayed with another of Ashley’s sisters, Alyssa, during the week, while he and

Ashley remained in the tent. Tr. 13, This testimony was substantiated by the

testimony of Alyssa, who testified that she volunteered to take the children during

the week because she did not think it was appropriate for them to be living in a

tent without running water. Tr. 46. Alyssa also testified that the children hated

living in the tent, came to her home wearing dirty clothing, and stayed with her

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until they went to be with Jennifer on the weekend. Tr. 46-48. During the time

the children were with Alyssa, Rick did not contribute anything towards their

support and did not offer to pay for the school supplies that Alyssa bought for the

children. Tr. 45-49.

       {¶10} By the hearing date, Rick had begun a new job and had moved

himself, Ashley, and the children into a two bedroom trailer that was placed on

land owned by a relative. Tr. 7-11. This housing occurred in September of 2014,

so occurred less than a month before the hearing.

       {¶11} Rick also admitted that since the last hearing, he had not tended to

the medical needs of the children. Since the last hearing, Rick had taken the

children to a clinic in Lima, but not to their regular pediatrician.          Tr. 31.

Additionally, the children had not been to the dentist or eye doctor. Tr. 31.

Although Tyler’s glasses were broken, Rick had him wear Makhayla’s glasses

instead of getting them repaired or replacing them, and Makhayla went without

glasses. Tr. 31. Thus, neither child was wearing the glasses prescribed to them by

the doctor. Tr. 151.

       {¶12} As set forth above, a change of circumstances exists if, since the last

hearing, there has been a change in the life of the residential parent or the children

that has negatively affected the children. The evidence in this case shows that

there was a change of circumstances. Since the last hearing, the children had been

moved out of their grandmother’s home without having a new residence, spent the

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summer in North Carolina living with Sonya, returned to Ohio to live in a tent, and

then lived with Alyssa on school days while Rick stayed in a tent without running

water. On the weekends, the children were either with Jennifer, or stayed in the

tent with Rick and Ashley. During most of this time, Rick was unemployed and

had little to no income. Although the homelessness and unemployment was

remedied before the current hearing, the effect of the instability of being homeless

had already occurred. Additionally, Rick admitted that all children had been

without necessary medical care and that at least two of the children were

negatively affected by this. The evidence clearly shows that the circumstances

were different from the last hearing. Thus, the trial court erred by determining that

there was no change of circumstances.

                            Best Interests of the Children

       {¶13} Once a substantial change of circumstances that materially affects the

children is found, the next issue for the trial court is to determine what is in the

best interest of the children. Id.

       (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.

       (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

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      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;

      ***

      (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. “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.” Davis v. Flickinger, 77

Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

      {¶14} The evidence in this case shows that although there were changes of

circumstance, Rick had either remedied or was in the process of remedying the

issues. Affholder indicated in her report that children’s services had been to


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Rick’s new residence and “had no issue with the Martin children living” in that

mobile home. Doc. 86. The Putnam County investigator indicated to Affholder

that the agency would be providing beds for all of the children as well as a

propane tank filled with propane.     The report also indicated that the Putnam

County investigator believed that the investigation into the allegation that Rivera

had sexually abused a child by Children’s Services in Allen and Lucas County

showed that the abuse was “indicated”, but that it could not be confirmed because

Rivera denied the allegations and “was never able to meet with law enforcement.”

GAL Report, 4.

      {¶15} Affholder testified that she had been unable to visit Jennifer’s home

in Toledo because Jennifer did not arrange it. As a result that home was never

approved for the children to visit. Affholder continued to be concerned that

although the case against Rivera against was closed, the conclusion of a case

worker was that abuse was indicated and Jennifer was continuing her relationship

with Rivera. Affholder also had concerns that Jennifer had no desire to remain in

the area, but instead would soon choose to return to Toledo. Tr. 195. Affholder

recommended that it would be in the best interest of the children to remain in

Rick’s custody. Doc. 86 at 7.

      {¶16} Jennifer admitted at the hearing that she had willfully violated the

trial court’s orders on multiple occasions by taking the children to her home in

Toledo, even though the home had not been approved by Affholder and the court

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order required visits to occur at her mother’s home. 131-134. Jennifer also

admitted that the children had been in contact with Rivera even though the contact

was forbidden by the court order. Tr. 132. When Jennifer went to North Carolina

to pick up the children, Rivera went with her. Tr. 98. On cross-examination

Jennifer admitted that she would prefer to work in Toledo rather than in Putnam

County because there were better career opportunities there. Tr. 111. Although

Jennifer had leased a home in Columbus Grove for one year, Affholder had not

been able to have a home visit with Jennifer present. Tr. 142. Additionally,

Jennifer was between jobs at the time of the hearing. Tr. 95-96

       {¶17} In this case, the question of what is in the best interest of the children

is of paramount consideration because both parties have violated court orders and

acted in an immature manner that places their children in the middle of their

disputes.   Testimony was presented that both parents had interfered with the

parental relationships by interfering with communication, taking the children out

of town and/or state, failing to notify the other parent of new addresses, failing to

tell the other parent where the children will be, and generally behaving

disrespectfully and sometimes maliciously towards the other parent. This is clear

from the fact that the trial court considered referring the matter to the juvenile

court because neither home seemed to be suitable. However, the matter was

reviewed by the guardian ad litem and she recommended that the children remain

with Rick. Her report indicated Makhayla wished to live with Rick because of

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Jennifer’s relationship with Rivera. Tyler indicated to the guardian ad litem that

he did not wish to choose between his parents and that he wishes for them to get

back together. Tyler wanted a return to the shared parenting plan so that he could

see more of Jennifer and did not wish to change schools. Kaiden also indicated

that he wished to live with both parents equally and not to change schools. Emily

indicated that she liked living in the trailer with Rick better than staying with

Alyssa, but that she wanted to spend time with Jennifer in Columbus Grove.

Ronald initially told the guardian ad litem that he wanted to live with Rick, but

later changed his mind and said he would prefer to live with Jennifer if she

remained in Columbus Grove.

       {¶18} The trial court spoke with the children and determined that Makhayla

wished to remain in the custody of Rick. Tyler indicated to the trial court that he

wished to remain in the Columbus Grove School District.             The trial court

determined that the remaining children were too immature to express their wishes.

The decision of the trial court indicates that it still had concerns regarding the

contact between the children and Rivera and Jennifer’s willingness to comply with

court orders. Despite orders to the contrary, Jennifer continued to expose the

children to a man who was accused of sexually abusing a minor without first

getting clearance from the trial court. Jennifer also indicated that she did not wish

to remain in Columbus Grove and would like to move the children to Toledo. At

the time of the hearing, Rick was no longer homeless and was working with Job

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and Family Services to obtain the necessary services for the children. Rick also

testified that he was again employed and intended to remain in Columbus Grove.

Considering all the testimony before it and the statutory factors set forth in R.C.

3109.04(F), the trial court determined that it would be in the best interest of the

children to remain in the custody of Rick. This determination is supported by

competent, credible evidence.

         {¶19} Although this court found a substantial change of circumstances that

materially affected the children, the error of the trial court in not finding a change

of circumstance was harmless because the trial court did continue with the analysis

to consider the best interests of the children. R.C. 3109.04(E)(1)(a) mandates that

a court shall not modify a prior decree of parental rights and responsibilities

without a finding that there is a change of circumstance and that the change of

parental rights and responsibilities is in the best interests of the child. The trial

court stated that it “also finds that it is in the best interests of the minor children

that they remain in the care and custody of [Rick].” Doc. 86 at 4. Given the

evidence before it, the trial court’s decision is supported by the record and the trial

court did not abuse its discretion by denying the motion to modify the parental

rights and responsibilities.1 The assignment of error is overruled.




1
 Since the trial court found that it was not in the best interests of the children to modify the parental rights
and responsibilities at this time, the trial court did not need to address whether the benefits of the
modification would outweigh the harm caused by the modification.

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

assigned and argued, the judgment of the Court of Common Pleas of Putnam

County is affirmed.

                                                           Judgment Affirmed

SHAW and PRESTON, J.J., concur in Judgment Only.

/hlo




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