[Cite as Luburgh v. Luburgh, 2011-Ohio-5754.]


                                      COURT OF APPEALS
                                  MUSKINGUM COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

LAYNE A. LUBURGH                                   JUDGES:
NKA PALADINO,                                      Hon. William B. Hoffman, P.J.
                                                   Hon. Sheila G. Farmer, J.
        Plaintiff-Appellant,                       Hon. Julie A. Edwards, J.

v.-                                                Case No. CT11-0017

MATTHEW W. LUBURGH,
                                                   OPINION
        Defendant-Appellee.




CHARACTER OF PROCEEDING:                        Appeal from the Muskingum County
                                                Common Pleas Court, Domestic Relations
                                                Division, Case No. DA97-0262


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         November 3, 2011


APPEARANCES:


For Plaintiff-Appellant                         For Defendant-Appellee


SUSAN N. HAYES                                  MICHAEL A. NORTHRUP
J.C. Deboard & Co., L.P.A.                      Micheli, Baldwin, Northrup LLP
5878 North High Street                          3808 James Court, Suite 2
Worthington, Ohio 43085                         Zanesville, Ohio 43701
Muskingum County, Case No. CT11-0017                                                    2

Hoffman, P.J.


       {¶ 1} Plaintiff-appellant Layne A. Luburgh, nka Paladino, appeals the March 23,

2011 Judgment Entry entered by the Muskingum County Court of Common Pleas,

Domestic Relations Division, designating Defendant-appellee Matthew W. Luburgh

residential parent and legal custodian of the parties’ minor child.

                                  STATEMENT OF THE CASE

       {¶ 2} In 1998, the parties’ marriage was terminated, and the trial court allocated

parental rights and responsibilities for the parties’ three minor children: P.L. - DOB

3/23/90; H.L. - DOB 2/5/1992; and S.L. - DOB 8/17/95, pursuant to a shared parenting.

       {¶ 3} Following a contested hearing, the trial court terminated the shared

parenting decree by Judgment Entry of April 7, 2005, designated Layne Luburgh

(“Mother”) as residential parent and legal custodian, and granted Matthew Luburgh

(“Father”) visitation. At the time, Mother was married to Kyle Paladino, with whom she

shares one minor child, E.P.

       {¶ 4} On March 1, 2008, Kyle Paladino allegedly committed an act of domestic

violence against Mother. Mother subsequently filed for divorce shortly thereafter, and

she and Paladino were divorced on October 20, 2008.

       {¶ 5} S.L. attends school in the Tri-Valley School District, where Mother’s home

is located.   Father’s home is in another school district; however, Tri-Valley School

District currently has open enrollment affording S.L. the opportunity to attend Tri-Valley

regardless of whether he lives with Mother or Father.

       {¶ 6} Father married his present spouse in 2007, and she has two minor

children from a previous relationship.
Muskingum County, Case No. CT11-0017                                                    3


      {¶ 7} By informal agreement of the parties, the children have stayed with either

party one-half the time since the spring of 2009.

      {¶ 8} On July 16, 2009 Father moved the trial court to modify the allocations of

parental rights and responsibilities for the parties’ children.1 On September 18, 2009,

Mother moved the trial court to modify child support and the allocation of dependency

exemptions.

      {¶ 9} The matter came before the magistrate on January 11, 2010, upon

Father’s motion to modify the allocation of parental rights and responsibilities and

Mother’s motion to modify child support and allocate dependency exemptions. The

magistrate conducted an in camera interview with the parties’ minor child, S.L.

      {¶ 10} Following the hearing and the in camera interview, the magistrate issued a

Magistrate’s Decision on May 14, 2010, designating Father the residential parent and

legal custodian of S.L.    The trial court adopted the decision of the magistrate via

Judgment Entry of April 26, 2011.

      {¶ 11} Mother filed objections to the magistrate decision. Via Judgment Entry of

March 23, 2011, the trial court overruled the objections, and again adopted and

approved the magistrate’s decision as the order of the court.

      {¶ 12} Mother now appeals, assigning as error:

      {¶ 13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING,

AGAINST THE WEIGHT OF THE EVIDENCE, THAT IT WAS IN THE BEST INTEREST




1
 P.L. is emancipated. H.L. reached the age of majority on February 5, 2010.
Accordingly, the trial court found Father’s motion to modify allocation of parental rights
and responsibilities for H.L. moot.
Muskingum County, Case No. CT11-0017                                                       4


OF THE CHILD TO MAKE A CHANGE IN RESIDENTIAL PARENT AND LEGAL

CUSTODIAN.

       {¶ 14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING,

AGAINST THE WEIGHT OF THE EVIDENCE, THAT ANY OF THE FACTORS OF R.C.

3109.04(E)(1)(a)(i), (ii) OR (iii) APPLIED.”

                                               I & II

       {¶ 15} Mother’s assigned errors raise common and interrelated issues; therefore,

we will address the arguments together.

       {¶ 16} Mother maintains the trial court abused its discretion in designating Father

the residential parent and legal custodian of S.L.

       {¶ 17} In the case of In the Matter of McLaughlin Children, Stark App. No.2002-

CA-00316, 2003-Ohio-761, this court held a trial court has broad discretion in matters

concerning the allocation of parental rights and responsibilities and we will not disturb its

decision on appeal absent an abuse of discretion. Masters v. Masters (1994), 69 Ohio

St.3d 83, 85, 630 N.E.2d 655. Abuse of discretion connotes more than an error of law or

judgment; it implies that the court's attitude was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140. The trial court has discretion to evaluate the credibility of witnesses, and an

appellate court may not substitute its judgment for that of the finder of fact, see State v.

Awan (1986), 22 Ohio St.3d 121.

       {¶ 18} Ohio Revised Code Section 3109.04(E)(1)(a) states,

       {¶ 19} “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
Muskingum County, Case No. CT11-0017                                                      5


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:

       {¶ 20} “(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.

       {¶ 21} “(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.

       {¶ 22} “(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.”

       {¶ 23} In Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d 599, the Seventh

District held,

       {¶ 24} “Thus, three elements must have existed in order for the trial court in this

case to have properly modified the existing shared parenting plan to grant appellant

sole residential parent status: (1) there must be an initial threshold showing of a change

in circumstances, (2) if circumstances have changed, the modification of custody must

be in the children's best interests, and, (3) any harm to the children from a modification

of the plan must be outweighed by the advantages of such a modification. Clark v.
Muskingum County, Case No. CT11-0017                                                      6

Smith (1998), 130 Ohio App.3d 648, 653, 720 N.E.2d 973, 976. The record must

support each of these findings or the modification of child custody is contrary to law.

Davis v. Flickinger (1997), 77 Ohio St.3d 415, 417, 674 N.E.2d 1159, 1161-1162.

Additionally, R.C. 3109.04(E)(1)(a) creates a rebuttable presumption that retaining the

residential parent designated by the prior decree is in the child's best interest. Meyer v.

Anderson (April 18, 1997), Miami Co. App. No. 96CA32, unreported, 1997 WL 189383.”

       {¶ 25} Revised Code Section 3109.04(F)(1) states,

       {¶ 26} “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:

       {¶ 27} “(a) The wishes of the child's parents regarding the child's care;

       {¶ 28} “(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;

       {¶ 29} “(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;

       {¶ 30} “(d) The child's adjustment to the child's home, school, and community;

       {¶ 31} “(e) The mental and physical health of all persons involved in the situation;

       {¶ 32} “(f) The parent more likely to honor and facilitate court-approved parenting

time rights or visitation and companionship rights;
Muskingum County, Case No. CT11-0017                                                   7


      {¶ 33} “(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;

      {¶ 34} “(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 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;

      {¶ 35} “(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;
Muskingum County, Case No. CT11-0017                                                     8


       {¶ 36} “(j) Whether either parent has established a residence, or is planning to

establish a residence, outside this state.”

       {¶ 37} Mother asserts the trial court abused its discretion in designating Father

the residential parent and legal custodian of S.L. as the facts in this case do not support

a change being in S.L.’s best interest, and the harm caused by the change outweighs

the advantages for the child. Specifically, Mother argues it is in S.L.’s best interest to

have visitations coordinated with his half sibling E.P. in order to preserve their

relationship. Further, Mother maintains she lives in the school district S.L. attends, and

he is well adjusted to both homes.

       {¶ 38} The magistrate herein specifically found S.L. enjoys a good relationship

with both parents, his stepmother, and stepsisters residing with Father. The magistrate

found the child had been integrated into Father’s home due to extended visitation with

Father. The magistrate found the child well-adjusted to the home of each parent, and

considered the effect a change of custody would have on the minor child’s schooling,

finding no effect on his ability to maintain attendance at his current school due to open

enrollment and if necessary, Father’s payment of tuition.

       {¶ 39} Upon review of the record, we find the trial court properly considered the

factors set forth in R.C. 3109.04(E)(1) and (F)(1). We conclude the trial court did not

abuse its discretion in finding a change of circumstances since the last parenting order,

and in designating Father the residential parent and legal custodian of the parties’ minor

child, S.L.
Muskingum County, Case No. CT11-0017                                            9


      {¶ 40} The March 23, 2011 Judgment Entry of the Muskingum County Court of

Common Pleas, Domestic Relations Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
Muskingum County, Case No. CT11-0017                                              10


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


LAYNE A. LUBURGH                             :
NKA PALADINO,                                :
                                             :
      Plaintiff-Appellant,                   :
                                             :
v.                                           :         JUDGMENT ENTRY
                                             :
MATTHEW W. LUBURGH,                          :
                                             :
      Defendant-Appellee.                    :         Case No. CT11-0017


      For the reasons stated in our accompanying Opinion, the March 23, 2011

Judgment Entry entered by the Muskingum County Court of Common Pleas, Domestic

Relations Division, is affirmed. Costs to Appellant.




                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER


                                             s/ Julie A. Edwards___________________
                                             HON. JULIE A. EDWARDS
