[Cite as In re A.N., 2011-Ohio-2422.]




            IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

IN THE MATTER OF: A.N.                     :

                                                         :        C.A. CASE NOS. 2010 CA
                                                                  83
                                                                            2011 CA 7
                                                         :
                                                                  T.C. NO. C 38401
                                                         :
                                                                   (Civil appeal from Common
                                                         :        Pleas      Court,     Juvenile
                                                                  Division)

                                                         :

                                        ..........

                                        OPINION
                                                    th
                         Rendered on the       20            day of     May       , 2011.

                                        ..........

MARK J. DONATELLI, Atty. Reg. No. 0019461, 77 West Main Street, Xenia, Ohio
45385
      Attorney for Appellee

DAVID M. McNAMEE, Atty. Reg. No. 0068582, 42 Woodcroft Trail, Suite D,
Beavercreek, Ohio 45430
     Attorney for Appellant

                                        ..........

FROELICH, J.

        {¶ 1} Plaintiff-appellant Chad Newdigate appeals from a judgment of the

Greene County Court of Common Pleas, Juvenile Division, which denied his motion

for custody of his daughter, A.N. For the following reasons, the judgment of the
                                                                                    2

trial court will be Affirmed.

                                              I

       {¶ 2} Newdigate and Sharon Wagner were unmarried and living together

when their daughter, A.N., was born on July 27, 2000. The parties separated the

following year, and through a Civil Protection Order issued on April 25, 2001, by the

Greene County Court of Common Pleas, Domestic Relations Division, custody of

A.N. was awarded to Wagner, with Newdigate being granted visitation (Case No.

2001-DV-59). Upon the expiration of that order in 2006, Newdigate moved in the

Juvenile Division for custody of A.N., and several months later, he filed a motion

seeking shared parenting (Case No. C38401).

       {¶ 3} An Agreed Order and Entry was filed on March 1, 2007. The entry

did not specifically identify Wagner as the residential parent, but the parties agreed

that “[t]he Father shall have parenting time with the minor child in accordance with

the Standard Order of Parenting Time,” with minor modifications. Nor did the entry

address the issue of child support. However, on August 1, 2007, Newdigate was

ordered to continue to pay $300/month in child support, as had been established as

part of the protection order.

       {¶ 4} On December 22, 2008, Newdigate filed a “Complaint for Custody” of

A.N. He alleged that there had been a change of circumstances since the last

order and that it would be in A.N.’s best interest for him to be awarded custody. A

hearing was held before a magistrate, and in March, the magistrate issued a

decision denying Newdigate’s motion.       Newdigate objected to the magistrate’s

decision, and Wagner responded. At the trial court’s request, the parties briefed
                                                                                    3

the issue of who was A.N.’s legal custodian at the time of the filing of the complaint

for custody, as the issue had not been directly addressed in the previous Agreed

Entry.

         {¶ 5} On November 22, 2010, the trial court found that the March 1, 2007,

Agreed Entry constituted a de facto designation of Wagner as A.N.’s residential

parent and legal custodian. Newdigate appealed from this finding under Case No.

2010 CA 83. On January 3, 2011, the trial court overruled Newdigate’s objections

to the magistrate’s decision, and denied Newdigate’s request for custody.

Newdigate appealed from that decision under Case No. 2011-CA-7.             We have

consolidated the two cases.

                                             II

         {¶ 6} Newdigate’s First Assignment of Error:

         {¶ 7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DETERMINING A PRIOR ORDER OF THE COURT ON VISITATION WAS A

DETERMINATION          OF   CUSTODY,      THUS     REQUIRING      A    CHANGE      IN

CIRCUMSTANCES TO AWARD APPELLANT CUSTODY OF THE MINOR CHILD.”

         {¶ 8} The threshold issue before us is whether R.C. 3109.04(E)(1)(a) was

applicable in the instant case. R.C. 3109.04(E)(1)(a) states: “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 chid, the child’s residential parent...and that

the modification is necessary to serve the best interest of the child. In applying
                                                                                    4

these standards, the court shall retain the residential parent designated by the prior

decree..., unless a modification is in the best interest of the child....” We must

specifically decide whether there had been a “prior decree allocating parental rights

and responsibilities” prior to Newdigate’s December 22, 2008, complaint for

custody.

       {¶ 9} Newdigate argues that because no order of custody had previously

been made in regard to his daughter, the trial court should not have required him to

demonstrate a change in circumstances as set forth in R.C. 3109.04(E)(1)(a).

Instead, he contends that the matter was an original custody action in which the

trial court should only have considered what was in the child’s best interest in

accordance with R.C. 3109.04(B)(1), which provides: “When making the allocation

of the parental rights and responsibilities for the care of the children under this

section in an original proceeding * * *, the court shall take into account that which

would be in the best interest of the children.”

       {¶ 10} Wagner, on the other hand, insists that the trial court correctly

concluded that the March 1, 2007, Agreed Order constituted a de facto designation

of Wagner as the custodial parent of A.N., and that a change of circumstances was

required before the legal custodian could be changed.

       {¶ 11} R.C. 3109.042 states that “[a]n 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.” Pursuant to this statute, upon A.N.’s birth to Wagner

as an unmarried woman, Wagner was statutorily presumed to be the residential
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parent and the child’s legal custodian. When a trial court simply recognizes this

statutory presumption, there has been no “prior decree allocating parental rights

and responsibilities” that would trigger the applicability of R.C. 3109.04(E)(1)(a).

DeWitt v. Myers, Clark App. No. 08-CA-86, 2009-Ohio-807, ¶16.

       {¶ 12} When Wagner and Newdigate separated, the trial court issued a Civil

Protection Order, which temporarily awarded custody of A.N. to Wagner.

However, a protection order “is not regarded as a custody proceeding. Rather, * *

* [it] is only a temporary order that lasts until the issue is litigated in domestic

relations or juvenile court.”    Tabler v. Myers, Noble App. No. 07-NO-339,

2007-Ohio-6219, ¶14. Thus, the protection order did not constitute a “prior decree

allocating parental rights and responsibilities” that would trigger the application of

R.C. 3109.04(E)(1)(a).

       {¶ 13} Nevertheless, appellate courts have recognized a trial court’s

discretion to determine the de facto relationships between parents and children

when specific language is lacking in written orders. See, e.g., Lucas v. Estes (Feb.

13, 1989), Montgomery App. No. 10970; In re Frederickson (May 2, 1985), Franklin

App. No. 84AP-683. The trial court is “in the best position to determine the nature

of its prior order.” In re P.T.P., Greene App. No. 2005 CA 148, 2006-Ohio-2911,

¶18.

       {¶ 14} Here, the trial court concluded that, although the March 1, 2007,

Agreed Entry did not specifically designate Wagner as the custodial parent, the

entry amounted to a de facto designation of Wagner as the custodial parent. The

focus of the entry was upon the details of Newdigate’s “parenting time” with A.N.
                                                                                   6

Custody and visitation, or parenting time, are related but distinct legal concepts.

State ex rel. Mosier v. Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, ¶6, citing Braatz

v. Braatz (1999), 85 Ohio St.3d 40, 44. “‘Custody’ refers to the right to ultimate

legal and physical control over a child, while ‘parenting time rights’ grant a parent

the power of temporary physical control for the purpose of visitation.” Id., quoting

Williamson v. Cooke, Franklin App. No. 09AP-222, 2009-Ohio-6842, ¶22, in turn

citing Braatz, supra, at 44.

       {¶ 15} The facts of this case support the trial court’s finding of a de facto

designation. Although Newdigate had enjoyed liberal visitation with A.N., the child

continued to live with her mother after her parents separated in 2001.

Furthermore, the trial court pointed out that “both parties, the child’s Guardian ad

Litem and the magistrate treated Mr. Newdigate’s 12/22/08 Complaint as an action

to modify a prior decree of custody.” For example, in his complaint for custody,

Newdigate alleged both a change in circumstances and that a change in custody

would be in A.N.’s best interest, the standards which a trial court is required to

apply pursuant to R.C. 3109.04(E)(1)(a), when determining whether a prior decree

should be modified. The trial court also pointed out that “all evidence submitted to

the Magistrate was presented in the context of this standard.”

       {¶ 16} Under these circumstances, we find no fault with the trial court’s

conclusion that the agreed entry constituted a de facto designation of Wagner as

the custodial parent and its holding that it should apply R.C. 3109.04(E)(1)(a).

Newdigate’s first assignment of error is overruled.

                                             III
                                                                                    7

       {¶ 17} Newdigate’s Second Assignment of Error:

       {¶ 18} “EVEN IF THE LEGAL STANDARD SET FORTH IN O.R.C.

§3109.04(E)(1)(a) IS FOUND TO BE THE PROPER STANDARD, THE TRIAL

COURT STILL ERRED AND ABUSED ITS DISCRETION BY NOT FINDING A

CHANGE OF CIRCUMSTANCES.”

       {¶ 19} Newdisgate’s Third Assignment of Error:

       {¶ 20} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

NOT FINDING IT IN THE MINOR CHILD’S BEST INTEREST TO AWARD

CUSTODY OF THE MINOR CHILD TO APPELLANT.”

       {¶ 21} In his second and third assignments of error, Newdigate maintains

that the trial court erred in refusing to grant him custody. A trial court’s finding

regarding whether or not a change in circumstances has occurred so as to warrant

a change in custody pursuant to R.C. 3109.04 should not be reversed absent an

abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260. “The

abuse of discretion standard is defined as ‘[a]n appellate court’s standard for

reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal,

or unsupported by the evidence.’” State v. Boles, Montgomery App. No. 23037,

2010-Ohio-278, ¶18, quoting Black’s Law Dictionary, Eighth Edition (2004), at 11.

       {¶ 22} When there has been a “prior decree allocating parental rights and

responsibilities,”   R.C. 3109.04(E)(1)(a) allows for a change in custodial parent

only upon finding “that a change has occurred in the circumstances” and “that the

modification is necessary to serve the best interest of the child.” See, e.g., In re

James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶14.         Only if there has been a
                                                                                     8

change in circumstances must the court consider whether a change would be in the

best interest of the child. See, e.g., Clark v. Clark (April 19, 1993), Preble App. No.

CA92-01-001, citing Holtzclaw v. Holtzclaw (Dec. 12, 1992), Clermont App. No.

CA92-04-036.

       {¶ 23} Not every change in circumstances is sufficient to warrant

modification of a custody order. Instead, any such change “must be a change of

substance, not a slight or inconsequential change.” Davis, supra, at 418. “‘The

clear intent of that statute is to spare children from a constant tug of war between

their parents who would file a motion for change of custody each time the parent

out of custody thought he or she could provide the children a ‘better’ environment.

The statute is an attempt to provide some stability to the custodial status of the

children, even though the parent out of custody may be able to prove that he or she

can provide a better environment.’” Id., quoting Wyss v. Wyss (1982), 3 Ohio

App.3d 412, 416.

       {¶ 24} Newdigate maintains that both Wagner’s work schedule, which

causes her to be unavailable to care for A.N. much of the time, and her move from

Fairborn to Huber Heights, which resulted in a change of school districts,

constituted a change of circumstances, which should have resulted in a finding that

a change of custody would be in A.N.’s best interest.

       {¶ 25} Newdigate compares the present case to Rutherford v. Rutherford,

Portage App. No. 2009-P-0086, 2010-Ohio-4195.           However, we see significant

differences between the two cases. In Rutherford, no objections were filed to the

magistrate’s decision, which means that the appellate court applied a plain-error
                                                                                      9

review, rather than the abuse-of-discretion standard that we must apply. Noting

that the mother’s work schedule, which changed frequently and which often

involved overtime, prevented her from being available to the children and that the

mother had moved four times in two years, each time causing a change in the

children’s school, the Rutherford court concluded that there had been a change of

circumstances and that granting custody to the father would be in the children’s

best interest.

       {¶ 26} Here, on the other hand, Wagner is available to care for A.N. most of

the time.    Wagner testified that she consistently works third shift, essentially

working while A.N. is asleep and sleeping while A.N. is at school. Wagner usually

only works overtime on weekends when A.N. is visiting her father. Wagner gets

A.N. ready for school and usually takes her to the bus stop each morning. Wagner

is awake when A.N. gets home from school and does not have to leave for work

until A.N.’s bedtime, at which time A.N.’s maternal grandmother comes to the

house to spend the night with her. Wagner’s mother is also available to care for

A.N. during school breaks when Wagner must work.

       {¶ 27} Additionally, “‘relocation alone [is] not * * * sufficient to qualify as a

change of circumstances.’” Hanley v. Hanley (May 22, 1998), Pickaway App. No.

97CA35, quoting Moore v. Moore (March 27, 1998), Portage App. No. 97-P-0008;

additional citations omitted.   In this case, Wagner moved and changed A.N.’s

school only once.      After being laid off from General Motors, Wagner was

unemployed for a number of months.            Wagner decided to move to a less

expensive home, which is just two houses away from her mother, who helps to care
                                                                              10

for A.N.   In addition to the monetary savings and the convenience, the Huber

Heights home is somewhat larger and nicer than the Fairborn home. Both parents

and the Guardian ad Litem agreed that A.N. had adjusted to the change in home

and schools well, making new friends and maintaining good grades.

       {¶ 28} For these reasons, the trial court concluded that there had been no

change in circumstances that would warrant a change in custody and overruled

Newdigate’s objections to the magistrate’s decision. We conclude that the trial

court did not abuse its discretion in denying Newdigate’s complaint for custody.

Newdigate’s second and third assignments of error are overruled.

                                             III

       {¶ 29} Newdigate’s three assignments of error having been overruled, the

judgment of the trial court is Affirmed.

                                      ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Mark J. Donatelli
David M. McNamee
Hon. Robert W. Hutcheson
