[Cite as Atkins v. Stevens, 2012-Ohio-6177.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               CLINTON COUNTY




RICHARD SCOTT ATKINS,                                :
                                                            CASE NO. CA2012-04-009
        Plaintiff-Appellee,                          :
                                                                 OPINION
                                                     :            12/28/2012
    - vs -
                                                     :

DIANDRA DEE STEVENS,                                 :

        Defendant-Appellant.                         :



         CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                            Case No. DRK 20030063



John S. Mengle, 42 East Silver Street, Lebanon, Ohio 45036-1804, for plaintiff-appellee

Michael J. Davis, 8567 Mason-Montgomery Road, P.O. Box 1025, Mason, Ohio 45040, for
defendant-appellant



        S. POWELL, P.J.

        {¶ 1} A mother challenges on appeal a custody change naming the children's father

residential parent and legal custodian of the couple's two minor children. We affirm the

judgment, finding the Clinton County Domestic Relations Court did not abuse its discretion in

making this difficult custody modification.

        {¶ 2} A review of the record reveals that mother, Diandra Dee Stevens, and father,
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Richard Scott Atkins, were divorced in 2004. The Clinton County Domestic Relations Court

named mother residential parent and legal custodian of the couple's two children, a son and

daughter, born in 1999 and 2001, respectively; father received parenting time.

       {¶ 3} In 2007, father moved to modify parental rights, requesting the court name him

residential parent and legal custodian. Mother also moved to modify custody, seeking to

reduce father's parenting time to every other weekend. Both parents alleged a change of

circumstances necessitated the modification—namely the mounting issues associated with

the significant developmental and behavioral concerns for the two minor children affected by

autism.

       {¶ 4} An evidentiary hearing on the parents' respective motions was not held until

July 2011. The trial court indicated on the record that, after the motions were filed, it ordered

family evaluations and repeatedly continued the case because the court was informed that

the parties were engaged in mediation, court-ordered counseling, or settlement negotiations.

To the dismay of the trial court – and this court – the lengthy delays resulted in no resolution

of the pertinent issues.

       {¶ 5} At the evidentiary hearing, the magistrate heard the testimony of or received

reports from numerous witnesses. The magistrate found that naming father residential

parent and legal custodian was in the children's best interests, and granted father's motion.

The trial court overruled mother's objections and adopted the magistrate's decision. In its

entry, the trial court also reiterated the parenting time schedule that granted mother parenting

time every week and every other weekend. Mother now appeals, raising a single assignment

of error for our review.

       {¶ 6} Assignment of Error:

       {¶ 7} THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS

DISCRETION IN GRANTING FATHER'S REQUEST TO REALLOCATE PARENTAL
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RIGHTS AND RESPONSIBILITIES OF THE PARTIES' MINOR CHILDREN AND IN

DESIGNATING FATHER THE RESIDENTIAL PARENT, AS SAME WAS NOT IN THE BEST

INTERESTS OF THE MINOR CHILDREN[.]

       {¶ 8} Mother argues the trial court's findings are not supported by the evidence and

the court failed to properly consider the harm and negative impact on the children from father

assuming custody and enrolling the son in a public school and changing the daughter's public

school.

       {¶ 9} In providing below a brief summation of the general stances of the mother and

father, we emphasize that we do not underestimate nor are we indifferent to the many

nuances in this complex case. At the evidentiary hearing, mother wanted to continue the

home-based services she initiated for the son years previously, with some in-house services

for her daughter, who is also attending a Clinton County school. Mother argued that some of

the funding for these home-based services would be lost if the son attended public school,

and she did not believe a public school could meet the son's needs.

       {¶ 10} Father claimed he did not have the same sort of difficulties as mother in

handing the son's behavioral issues and was concerned that the son is in a "rigid"

environment at mother's home and was not learning socialization skills. Father wanted to

send both children to a specific school with autism services in the district where he lives.

       {¶ 11} In determining whether a change of custody is warranted, a court must follow

R.C. 3109.04, which provides, in pertinent part, that 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 or his

residential parent, and that the modification is necessary to serve the best interest of the

child. R.C. 3109.04(E)(1)(a); Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589,
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syllabus; Valentine v. Valentine, 12th Dist. No. CA2004-12-314, 2005-Ohio-6163, ¶ 6.

       {¶ 12} In applying these standards, the court shall retain the residential parent

designated in the prior decree, unless a modification is in the child's best interest and, as

pertinent here, the harm likely to be caused by the change of environment is outweighed by

the advantages of the change. R.C. 3109.04(E)(1)(a)(iii); Valentine.

       {¶ 13} This court will not reverse a trial court's decision to allocate parental rights and

responsibilities where the record contains substantial credible and competent evidence to

support the trial court's decision. See Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).

       {¶ 14} Because custody issues are some of the "most difficult and agonizing decisions

a trial judge must make[,]" a trial court must have wide latitude in considering all the evidence

before it, and its decision must not be reversed absent an abuse of discretion. Valentine at ¶

5, quoting Flickinger at 418 (discretion trial court enjoys in custody matters should be

accorded utmost respect, given the nature of the proceeding and impact court's

determination has on the lives of the parties concerned); Kenney v. Kenney, 12th Dist. No.

CA2003-07-078, 2004-Ohio-3912, ¶ 6. The term abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

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

       {¶ 15} In the case at bar, the magistrate found a change of circumstances. This

finding focused on the diagnosis of autism for both children and the severity of the children's

conditions, including the daughter's behavior of harming herself and the son's three

hospitalizations for behavioral issues, which reportedly included aggression toward others,

and self-harm. It does not appear the change of circumstances determination is contested.

       {¶ 16} As previously noted, once a change in circumstances has been established, the

trial court can modify custody only if the modification is necessary to serve the best interest of

the child. In re R.A.S., 12th Dist. No. CA2011-09-102, 2012-Ohio-2260, ¶ 30.
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       {¶ 17} R.C. 3109.04(F)(1) contains a number of factors to assist the trial court in

determining the best interests of a child, including, but not limited to, such factors as the

wishes of the parents, the interaction and interrelationship with the child's parents, siblings,

and any other person who may significantly affect the child's best interest, the child's

adjustment to the child's home, school, and community; and the mental and physical health

of all persons involved.

       {¶ 18} The magistrate issued a 19-page decision that found a change of

circumstances, and found that the harm likely to be caused to the children by the change of

environment is outweighed by the advantages of the change. The magistrate specifically

outlined the R.C. 3109.04(F) best interest factors and made findings of fact related to each of

the factors the magistrate found applicable.

       {¶ 19} We have reviewed the record in this case, including the magistrate's decision

adopted by the trial court, the trial court's separate entry, the lengthy hearing transcript, and

the numerous exhibits offered at the hearing. We are mindful that we must defer to the

findings of the trial court because it was best able to view the witnesses and observe their

demeanor, and use these observations in weighing the credibility of the testimony.

Flickinger, 77 Ohio St. 3d at 418-419. An appellate court may not merely substitute its

judgment for that of the trial court. Baxter v. Baxter, 27 Ohio St. 2d 168, 172-73 (1971).

However, the discretion of the trial court is not unlimited and is subject to reversal upon the

basis of a showing of an abuse of discretion. Id.

       {¶ 20} The trial court in this case had a difficult, indeed, heartrending decision to

make. We find that substantial competent, credible evidence supports the trial court's

decision, and the trial court did not abuse its discretion in making its determination. Mother's

single assignment of error is overruled.

       {¶ 21} Judgment affirmed.
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RINGLAND and PIPER, JJ., concur.




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