[Cite as Hartley v. Hartley, 2017-Ohio-8494.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 JENNIFER LYNNE HARTLEY                               :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 27646
                                                      :
 v.                                                   :   Trial Court Case No. 02-DR-1816
                                                      :
 SHAWN HARTLEY                                        :   (Domestic Relations Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                OPINION

                           Rendered on the 9th day of November, 2017.

                                                 ...........

BRIAN A. KRUSE, Atty. Reg. No. 0087411, 10532 Success Lane, Dayton, Ohio 45458
     Attorney for Plaintiff-Appellee

JEREMY M. TOMB, Atty. Reg. No. 0079664, 124 West Main Street, Troy, Ohio 45373
     Attorney for Defendant-Appellant

                                                .............

HALL, P.J.
                                                                                           -2-




       {¶ 1} Shawn Hartley appeals from the trial court’s decision and judgment entry

overruling his objections to a magistrate’s decision and sustaining plaintiff-appellee

Jennifer Hartley’s motion for a change of custody regarding their minor child.

       {¶ 2} Shawn advances six assignments of error. In his first and second

assignments of error, Shawn challenges the trial court’s finding of a “change in

circumstances” sufficient to justify reallocating custody to Jennifer as being against the

weight of the evidence and an abuse of discretion. In his third and fourth assignments of

error, Shawn claims the trial court’s finding that reallocating custody to Jennifer was in

the child’s best interest is against the weight of the evidence and is an abuse of discretion.

In his fifth and sixth assignments of error, Shawn contends the trial court’s dismissal of

his motion to modify child support, as moot, is against the weight of the evidence and is

an abuse of discretion.

       {¶ 3} The record reflects that Shawn and Jennifer divorced in 2003 after having

two children together—S.H., who was born in 1998, and M.H., who was born in 2000.

Jennifer originally was designated the residential parent of both children. In February

2014, Jennifer was designated the residential parent and legal custodian of S.H, and

Shawn was designated the residential parent and legal custodian of M.H. In May 2016,

eighteen-year-old S.H. was emancipated. In August 2016, Jennifer moved for legal

custody of M.H. The matter proceeded to a hearing before a magistrate in December

2016. Shawn and Jennifer both testified at the hearing and presented exhibits. In

connection with Jennifer’s custody motion, the magistrate also interviewed sixteen-year-

old M.H. in camera.
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       {¶ 4} On March 10, 2017, the magistrate filed a decision sustaining Jennifer’s

motion for legal custody of M.H. In support, the magistrate found that Shawn repeatedly,

and over an extended period of time, had failed to facilitate court-ordered parenting time

between M.H. and Jennifer. The magistrate concluded that Shawn had “done nothing” to

ensure M.H.’s compliance with parenting-time orders. It also concluded that Jennifer

would “not have access to [M.H.] so long as defendant has custody.” The magistrate

additionally found that Shawn had refused to comply with a counseling order for the child.

The magistrate held that Shawn’s failure to facilitate court-ordered parenting time

between M.H. and Jennifer constituted a substantial change in circumstances justifying

an award of custody to Jennifer. The magistrate also held that the benefit from a change

of custody, namely “continuation of the parental relationship between mother and child,”

outweighed any detriment caused by the change. On this issue, the magistrate noted:

“The child will not have to change schools and her employment schedule * * * may be

impacted slightly. There was no evidence that plaintiff having custody would harm the

child—the child may be slightly inconvenienced by having to live under her mother’s set

of rules.” Finally, the magistrate stated: “After considering the R.C. 3109.04(F) factors and

all other relevant factors, it is found to be in the child’s best interests that plaintiff be

designated the child’s residential parent and legal custodian.” In support of this finding,

the magistrate reasoned:

              As noted before, the change of custody is the only option to

       effectuate plaintiff’s continued and consistent contact and companionship

       with [M.H.]. All other attempts have failed. Defendant has evidenced a

       refusal to encourage or facilitate parenting time. The child will be residing
                                                                                        -4-


       with her mother and emancipated sister. The child will continue in the same

       school.

(Doc. #408 at 5).

       {¶ 5} Shawn filed objections and supplemental objections to the magistrate’s

decision. The trial court overruled the objections in a June 13, 2017 decision and

judgment entry. Among other things, Shawn objected to the magistrate’s finding that he

had failed to comply with a counseling order for M.H., that he had not encouraged or

facilitated parenting time between M.H. and Jennifer, and that a change of custody was

the only way Jennifer would be able to exercise parenting time with M.H.

       {¶ 6} The trial court addressed and rejected each of Shawn’s arguments. It also

independently reviewed the record and found that Shawn’s repeated failure to facilitate

and honor court-ordered parenting time between Jennifer and M.H. constituted a

substantial change in circumstances, that awarding Jennifer legal custody of M.H. was in

the child’s best interest because it would “provide the opportunity for a mother-daughter

relationship,” and that “[t]he benefit of this change outweighs any negligible risk of harm

to the child, as her school, work, and extracurricular activity will remain unchanged, and

she will be able to maintain a relationship with her father pursuant to a modified Standard

Order of Parenting Time.” (Doc. #439 at 9). Finally, the trial court overruled an objection

concerning child support, finding a prior motion by Shawn to establish child support moot

because Jennifer now would have custody of M.H. (Id. at 11). This appeal followed.

       {¶ 7} In his first two assignments of error, which he briefs and argues together,

Shawn challenges the trial court’s finding of a change in circumstances sufficient to

warrant a change of custody. We begin our analysis with the applicable statute, R.C.
                                                                                           -5-


3109.04(E)(1)(a), which prohibits a court from modifying custody “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]

the child’s residential parent.” On appeal, Shawn contends the applicable “prior decree”

was an August 8, 2016 decision and judgment (Doc. # 390) or a March 15, 2016 agreed

order (Doc. #372). He argues that any issues involving him not cooperating with

counseling for M.H. or not facilitating Jennifer’s visitation with M.H. predated both of these

dates. Therefore, he contends no change in circumstances has occurred since the “prior

decree.”

       {¶ 8} We find Shawn’s argument to be unpersuasive. The August 8, 2016 decision

and judgment he cites disposed of contempt, parenting-time, and child-support issues. It

also set a hearing on a motion for modification of custody. Significantly, however, the

August 8, 2016 decision and judgment did not reallocate parental rights. Similarly, the

March 15, 2016 agreed order he cites also addressed contempt, parenting-time, and child

support issues. Although it referenced a motion by Jennifer to reallocate parental rights,

that motion was dismissed. (Doc. #372 at 2).

       {¶ 9} For purposes of R.C. 3109.04(E)(1)(a), the reference to the “prior decree”

means the last decree that actually allocated parental rights. In re M.B., 2d Dist.

Champaign No. 2006-CA-6, 2006-Ohio-3756, ¶ 10. “[T]he relevant time frame for

determining whether a change in circumstances exists is not the period between a non-

custodial parent’s prior unsuccessful motion for a change of custody and the filing of a

new motion. This is so because an unsuccessful motion for a change of custody does not

result in a decree that allocates parental rights.” Id. “As a result, when a non-custodial
                                                                                           -6-


parent files a second or successive motion for a change of custody after previously having

failed on a similar motion, the starting point for determining whether a change in

circumstances exists remains the date of the decree that actually allocated parental

rights.” Id., citing Gaines v. Pelzl, 2d Dist. Greene No. 2003-CA-60, 2004-Ohio-2043, ¶ 6;

see also Pathan v. Pathan, 2d Dist. Montgomery No. 18254, 2000 WL 1299529, *3 (Sept.

15, 2000) (recognizing that continued interference with a non-custodial parent’s visitation

can constitute a change in circumstances even if the interference was raised in

connection with a prior unsuccessful custody motion).

       {¶ 10} Here the last decree that actually allocated parental rights with regard to

M.H. was a February 13, 2014 agreed order that designated Shawn the child’s residential

parent and legal custodian. (Doc. #239). Therefore, any change in circumstances

occurring after that date constituted potential grounds for a change in custody. Shawn’s

alleged failure to cooperate with counseling and failure to facilitate visitation between

Jennifer and M.H occurred after he obtained legal custody of the child. Consequently, the

trial court did not err in considering those issues when determining whether a change in

circumstances had occurred. We note too that “[f]rustration of and interference with

visitation are factors which support a finding of a change of circumstances.” Pellettiere v.

Pellettiere, 2d Dist. Montgomery No. 23141, 2009-Ohio-5407, ¶ 16. This is so because “

‘[w]hen a court makes a custodial decision, it makes a presumption that the

circumstances are such that the residential parent will promote both maternal and

paternal affection.’ ” Id., quoting Beekman v. Beekman, 96 Ohio App.3d 783, 789, 645

N.E.2d 1332 (4th Dist.1994).

       {¶ 11} Shawn contends he did not interfere with or fail to facilitate Jennifer’s court-
                                                                                           -7-


ordered visitation. He argues that M.H. simply did not want to visit her mother and that he

did not, and realistically could not, force the child to do so. Shawn cites his testimony that

M.H. felt “mistreated” over an incident that involved Jennifer grabbing a cell phone, that

M.H. wanted an apology for the incident, and that Jennifer had refused to comply. The

trial court’s decision demonstrates, however, that it perceived the visitation problem more

broadly, and that it believed Shawn had failed to comply, over an extended period of time,

with his obligation to promote visitation between Jennifer and M.H. Citing hearing

testimony, the trial court explained:

              Jennifer testified that since February 2014, she has seen [M.H.] for

       approximately 35 days of her scheduled visitation. Transcript, at 6. Pursuant

       to a November 19, 2014 Magistrate Decision and Permanent Order,

       Jennifer was to have mid-week parenting time with [M.H.] on Wednesdays

       from after school until 8:00 p.m. [M.H.] was to take the bus to Jennifer’s

       home, and then Jennifer was to return [M.H.] to Shawn at the Friendly’s

       parking lot. This parenting time never occurred. Transcript at 15-16. Instead

       of riding the bus, Shawn drove [M.H.] to Jennifer’s house, but [M.H.] did not

       get out of the car. Id. at 16. Jennifer testified that there were instances where

       Shawn came to her house, without her permission, and removed [M.H.]

       from the home, during Jennifer’s parenting time. Id. at 17-18. On President’s

       Day, 2015, Jennifer was supposed to have parenting time with the minor

       children beginning at 9:00 a.m. pursuant to the order in place at that time.

       Because the holiday fell at the end of Shawn’s weekend of parenting time,

       he refused Jennifer’s parenting time, instead returning [M.H.] at 9:00 p.m.
                                                                                  -8-


on Monday. Id. at 19. After June of 2015, Jennifer had no parenting time

with [M.H.], until the four scheduled days provided pursuant to the March

15, 2016 Agreed Order. Id. at 20.

        Jennifer testified that the Agreed Order filed March 15, 2016, which

was subsequent to an in camera interview of [M.H.] by the magistrate,

provided for parenting time between Jennifer and [M.H.], which she

exercised. Transcript at 8-10. Jennifer testified that, although the Magistrate

Order filed May 3, 2016, subsequent to another in camera interview with

[M.H.], provided that Jennifer was to have additional parenting time with

[M.H.], that she did not have any parenting time after that order. Transcript

at 8.

        Shawn testified that he has made “multiple attempts” to facilitate

parenting time with Jennifer and [M.H.], but could provide no specific

instances or dates related thereto. Transcript at 69-70, 97. Shawn

acknowledged that he would not make [M.H.] go to parenting time with her

mother. Transcript at 71-72. Shawn has taken away [M.H.’s] phone for

refusing to visit with her mother. Transcript at 72. Shawn has not taken away

[M.H.’s] car or grounded her, nor has he provided any incentives, to

encourage [M.H.] to participate in parenting time with her mother.

Transcript, at 74-76.

        Shawn contends that [M.H.] wants an apology from her mother, and

that he will not force her to spend time with her mother because [M.H.] would

run away. It appears to the Court that Shawn should understand that [M.H.]
                                                                                           -9-


       could benefit from some counseling to work through these issues.

       Nonetheless, Shawn refused to cooperate in the counseling order.

              The Court finds that Jennifer was denied parenting time by Shawn,

       and there has been an absence of parenting time with [M.H.] for a significant

       period of time. This constitutes a change in circumstances warranting a

       change in custody within the meaning of R.C. 3109.04.

(Doc. #439 at 7-9).

       {¶ 12} Although Shawn denies failing to facilitate Jennifer’s parenting time, the trial

court was best positioned to determine whether he tried hard enough to get M.H. to visit

with Jennifer, whether he reasonably should have done more, and whether he impeded

visitation. Resolution of these issues was within the province of the trial court as the trier

of fact. We cannot say the trial court abused its discretion in reaching the conclusion that

it did. Nor is the trial court’s finding of a change in circumstances against the manifest

weight of the evidence. Accordingly, the first two assignments of error are overruled.

       {¶ 13} In his third and fourth assignments of error, which he briefs and argues

together, Shawn contends the trial court erred in finding that reallocating custody to

Jennifer was in M.H.’s best interest. He claims this finding is an abuse of discretion and

is against the weight of the evidence. In support, Shawn cites his own testimony about

M.H. not wanting to reside with Jennifer and about M.H. purportedly threatening to run

away if forced to do so. Shawn also cites his testimony that M.H. had threatened to

graduate from high school early if compelled to live with Jennifer. Shawn additionally

suggests that changing custody to Jennifer might interfere with M.H.’s attendance at a

community college, where she is taking classes early, or her part-time work schedule at
                                                                                           -10-


a fast-food restaurant. Finally, Shawn contends the statutory best-interest factors do not

favor awarding Jennifer custody and that the benefits from a change of custody do not

outweigh the harm.

       {¶ 14} We review the trial court’s best-interest determination for an abuse of

discretion. Thompson v. Thompson, 2d Dist. Montgomery No. 27394, 2017-Ohio-8192, ¶

14-15. We see no abuse of discretion here. The hearing transcript reflects that M.H. (who

is now seventeen years old) is an excellent student who maintains a busy schedule with

work, school, and extracurricular activities. While several of the statutory best-interest

factors appear to be neutral in this case, the trial court appears to have been motivated

primarily by findings that Shawn had impeded Jennifer’s parenting time, that “provid[ing]

the opportunity for a mother-daughter relationship” was in M.H.’s best interest, and that

changing custody was “the only way to ensure parenting time for Jennifer with [M.H.]”.

(Doc. # 439 at 9). Upon review of the entire record, including a sealed transcript of the

magistrate’s in camera interview with M.H., we conclude that the record contains

evidence to support the foregoing findings, which are not an abuse of discretion.

       {¶ 15} We also see no evidence in the record establishing that awarding Jennifer

custody of M.H. will interfere with the child’s school attendance, her ability to work part

time, or her extracurricular activities. Although Shawn speculates that M.H. may have

transportation problems if she resides with Jennifer, the evidence does not support his

claim. Finally, we see no abuse of discretion in the trial court’s finding that the benefits of

the change of custody outweigh any harm likely to be caused by the change. We note

that both parents reside locally and that the trial court awarded Shawn parenting time in

excess of the standard order. Shawn’s third and fourth assignments of error are overruled.
                                                                                        -11-


       {¶ 16} In his fifth and sixth assignments of error, which he briefs and argues

together, Shawn challenges the trial court’s dismissal of his motion to modify child

support, as moot. These assignments of error concern a February 17, 2016 motion

Shawn filed addressing child support. The parties’ above-referenced March 2016 agreed

entry stated that the motion would be “reset” following the emancipation of S.H., the

parties’ other child. S.H. subsequently was emancipated in May 2016. Thereafter, the trial

court filed its June 13, 2017 decision and judgment entry awarding Jennifer legal custody

of M.H. The trial court made the custody change effective March 31, 2017, the date

chosen by the magistrate. In the course of its ruling, the trial court found Shawn’s child-

support motion moot.

       {¶ 17} On appeal, Shawn contends the motion was not moot despite the change

in custody. He asserts that his motion sought child support from Jennifer for his support

of M.H. Although he plainly would not be entitled to child support for M.H. after the March

31, 2017 effective date of the change in custody to Jennifer, Shawn claims an issue

remains as to his entitlement to child support from the date of his motion until the change

in custody.

       {¶ 18} Upon review, we find Shawn’s argument to be unpersuasive. In February

2014, Jennifer was designated the residential parent and legal custodian of S.H, and

Shawn was designated the residential parent and legal custodian of M.H. At that time,

neither party paid child support. Thereafter, Shawn moved for child support for M.H. In

May 2015, the magistrate awarded him child support of $281 per month based on a split-

custody worksheet. (Doc. #336 at 4-6). On February 17, 2016, Shawn filed his motion to

modify child support. (Doc. #368). In its entirety, the motion states:
                                                                                        -12-


             Now comes Defendant, Shawn Hartley, by and through counsel, and

      hereby moves this Court for an Order modifying the child support obligation

      for the minor child, [S.H.], dob: * * *. Said request is based upon

      emancipation of the minor child.

             WHEREFORE, Defendant, Shawn Hartley, respectfully requests that

      this Court issue an Order modifying the child support obligation paid by

      Defendant.

      {¶ 19} On its face, this motion addressed a non-existent child support obligation

for S.H. based on the child’s upcoming emancipation. It also requested an order modifying

a child support obligation “paid by” Shawn, the defendant, despite the fact that he paid no

child support. Inferentially, the motion conceivably also could be construed to mean what

Shawn now suggests—that Jennifer’s $281 child-support obligation for M.H. should

increase following S.H.’s emancipation. But the motion does not actually say that. In its

June 13, 2017 judgment addressing the issue, the trial court reasoned:

             The parties had split custody of the minor children since 2014. A

      Magistrate Decision filed May 15, 2015, pursuant to Shawn’s motion to

      establish child support, determined that Jennifer shall pay child support, for

      the support of [M.H.], who was in Shawn’s custody, in the amount of

      $281.00 per month per child, for one child. No order of child support was

      made with regard to [S.H.], whose custodial parent was Jennifer. Shawn

      filed a Motion to Modify Child Support Obligation on February 17, 2016,

      based upon emancipation of the elder child, [S.H.]. That matter was set for

      hearing on March 15, 2016. The Agreed Order filed Mar[ch] 15, 2016
                                                                                        -13-


       indicates that the parties agreed that this matter would be reset until after

       [S.H.] was emancipated. [S.H.] was emancipated on May 2, 2016. That

       emancipation order indicates that no child support was being paid by Shawn

       for the support of [S.H.] (whose custodial parent was Jennifer). Child

       support, as it relates to [M.H.], was reevaluated at the current hearing.

       Because custody is awarded to Jennifer, Shawn has a child support

       obligation for the support of [M.H.]. Accordingly, this issue is moot.

       (Doc. # 439 at 11).

       {¶ 20} Based on the nature of Shawn’s child-support motion and the custodial

history set forth by the trial court, we cannot say it abused its discretion in finding his

motion moot. As noted, his motion expressly requested modification of his non-existent

obligation to pay Jennifer child support for S.H., who recently had been emancipated.

Even if we construe his motion as containing an implicit request for an increase of

Jennifer’s then-existing $281 monthly support obligation for M.H., the trial court, in the

exercise of its discretion, reasonably could have declined to award Shawn increased

support during the pendency of his motion prior to legal custody of M.H. switching to

Jennifer, an event that did make his support request moot prospectively. Accordingly, the

fifth and sixth assignments of error are overruled.

       {¶ 21} The judgment of the Montgomery County Common Pleas Court, Domestic

Relations Division, is affirmed.

                                      .............



WELBAUM, J. and TUCKER, J., concur.
                       -14-




Copies mailed to:

Brian A. Kruse
Jeremy M. Tomb
Hon. Denise L. Cross
