[Cite as Baker v. Baker, 2018-Ohio-3065.]




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

 LA SHANDA E. BAKER                               :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 27850
                                                  :
 v.                                               :   Trial Court Case No. 2007-DR-370
                                                  :
 PORTIEA BAKER                                    :   (Domestic Relations Appeal)
                                                  :
         Defendant-Appellee                       :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 3rd day of August, 2018.

                                             ...........

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
      Attorney for Plaintiff-Appellant

MARK A. FISHER, Atty. Reg. No. 0066939, 5613 Brandt Pike, Huber Heights, Ohio
45424
      Attorney for Defendant-Appellee

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




TUCKER, J.
                                                                                           -2-




         {¶ 1} Plaintiff-appellant La Shanda Baker appeals from an order of the

Montgomery County Court of Common Pleas, Domestic Relations Division, which

reallocated custody of her minor children to her ex-husband Portiea Baker. Ms. Baker

contends that the custody modification is not supported by the record.           She further

contends that the trial court lacked subject matter jurisdiction over the matter.

         {¶ 2} We conclude that the trial court did have subject matter jurisdiction over this

action and that the record supports the modification of custody.            Accordingly, the

judgment of the trial court is affirmed.



                              I. Facts and Procedural History

         {¶ 3} La Shanda and Portiea Baker were married in 1991. They have two minor

children as a result of their marriage.1 Ms. Baker filed a complaint for divorce in March

2007. Mr. Baker filed an answer and counterclaim in which he sought paternity testing

of the youngest child. Subsequent DNA testing confirmed that he is the father. A

decree of divorce was filed by the Montgomery County Court of Common Pleas, Domestic

Relations Division, in January 2008. Ms. Baker was designated as sole legal custodian

and residential parent of both children. Mr. Baker was ordered to pay child support in

the amount of $270 per month.

         {¶ 4} In February 2012, Ms. Baker, along with the children, moved to Texas for

purposes of employment. In July 2012, the Montgomery County Department of Job &

Family Services filed a motion seeking to hold Mr. Baker in contempt, alleging that he


1
    The Bakers’ third, and eldest, child was emancipated in 2010.
                                                                                        -3-


was over $14,000 in arrears with regard to child support. Mr. Baker obtained counsel in

October 2012. A finding of contempt was issued, and an agreed order was entered

permitting Mr. Baker to purge the contempt by tendering immediate payment of $1,000

and by remaining current on the support and arrearage payments.

         {¶ 5} In January 2013, Mr. Baker filed a motion to hold Ms. Baker in contempt,

alleging that she had moved to Texas without informing him of the move. The motion

was voluntarily dismissed in March 2013. In July 2013, he again filed a motion seeking

to hold Ms. Baker in contempt. At the same time, he filed a motion seeking modification

of custody and alleging that he had not seen his children since they moved to Texas. Mr.

Baker voluntarily dismissed both motions in February 2014.

         {¶ 6} In November 2016, Mr. Baker again filed a motion for a modification of

custody and to hold Ms. Baker in contempt. A hearing was conducted on August 1, 2017.

Ms. Baker appeared pro se. At the end of the hearing, the magistrate interviewed both

of the children in chambers.2

         {¶ 7} The magistrate issued a decision in which it was noted that, as of June 30,

2017, Mr. Baker’s child support arrearage was $15,465.79. The magistrate further found

the following:

                 Defendant’s concerns are plaintiff’s unannounced and unilateral

         removal of the children to Texas. This has impacted defendant’s contact

         and companionship with the children. It was uncontroverted that plaintiff

         neither contacted the Court nor defendant in writing about her relocation to

         Texas. It was disputed whether plaintiff “told” the defendant. Defendant


2
    There is no indication that the interview with the children was recorded.
                                                                                -4-


was credible in his testimony of no notice.

       Defendant did not see the children as a result of the relocation.

Defendant was able to see the children in the summer of 2017 because of

the pre-hearing order. Defendant had parenting time in 2016. Defendant

has provided his son with a cell phone in order to maintain communication.

       Plaintiff confirmed several incidents wherein defendant’s access to

the children was restricted by her. Defendant arranged airline travel for the

children around Christmas and plaintiff would not allow the children to go

because school had not yet recessed.             Another incident involved

defendant driving to Texas and not being able to take the children out of

school for the visit. In both situations there was no testimony that the

children had tests or other reason [sic] for not missing some school.

Another incident involved the children coming [to Ohio] for a funeral.

Defendant could not have the children as they were with “other” family.

       Defendant’s other concerns [sic] involve his son missing football

participation because plaintiff did not obtain a physical. And defendant had

concerns that when he sent his son a requested bicycle, no one in Texas

would help him put it together or pump up the tires. Defendant sent his son

tools and an air pump to accomplish this. Both of these incidents were

confirmed by plaintiff but not adequately explained.

       The children were interviewed as to their wishes and concerns.

Both articulated that they wanted to stay with their father.

       The report of the Family Relations Department Investigator confirms
                                                                                         -5-


       the difficulties in defendant having contact with the children due to the

       relocation. The report confirmed the children’s inability to communicate

       with defendant. The parties are not able to communicate with each other

       but it appears that defendant has, at least, tried to improve communication

       with the children via the cell phone.

              The Family Relations Department report also confirms that the

       children wish to live with the defendant, their father.

              ***

              Plaintiff has not taken any initiative in facilitating continued contact

       and companionship with their father. She alleges that defendant doesn’t

       visit but then acknowledged the previously confirmed incidents wherein she

       restricted the access.    Plaintiff takes no responsibility in assisting with

       defendant’s access or communications with the children.

       {¶ 8} The magistrate further found a substantial change of circumstances caused

by Ms. Baker’s relocation and denial of parenting time, which the magistrate found to have

detrimentally impacted the children’s ability to have a relationship with their father. The

magistrate also found that a change in custody would be in the best interest of the children

and that any harm caused by the change would be outweighed by the advantages of such

a change. Ms. Baker was awarded parenting time and was ordered to pay child support.3

       {¶ 9} Ms. Baker filed objections to the magistrate’s decision.        The trial court

overruled the objections. Ms. Baker appeals.



3
 Her child support obligation, which was set at $224.00 per month, was ordered offset
by Mr. Baker’s arrearage.
                                                                                            -6-




                               II. Change In Circumstances

       {¶ 10} Ms. Baker’s first assignment of error states as follows:

       THE RECORD DOES NOT SUPPORT THE COURT’S FINDING THAT A

       CHANGE OF CIRCUMSTANCES HAS OCCURRED AND [THE COURT]

       ERRED IN ORDERING A CHANGE OF CUSTODY.

       {¶ 11} Ms. Baker contends that the decision of the trial court is not supported by

the evidence.

       {¶ 12} “We review a trial court's ruling on a motion for reallocation of parental rights

for an abuse of discretion.” Chaney v. Chaney, 2d Dist. Montgomery No. 24880, 2012–

Ohio–626, ¶ 9, citing Musgrove v. Musgrove, 2d Dist. Montgomery No. 24640, 2011–

Ohio–4460, ¶ 7. The term “abuse of discretion” is used to indicate that a trial court's

decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983). In most instances, an abuse of discretion “will

result in a decision that is simply unreasonable, rather than unconscionable or arbitrary.”

Chaney at ¶ 9. “ ‘A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it deciding

the issue de novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would support a contrary

result.’ ”   Id., quoting Musgrove at ¶ 8, quoting AAAA Ents., Inc. v. River Place

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 13} The change of custody analysis begins with R.C. 3109.04(E)(1)(a), which

states, in pertinent part, as follows:
                                                                                          -7-


      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 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:

      ***

      (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.

      {¶ 14} “Although R.C. 3109.04 does not provide a definition of the phrase ‘change

in circumstances,’ Ohio courts have held that the phrase is intended to denote ‘an event,

occurrence, or situation which has a material and adverse effect upon a child.’ ” Lewis

v. Lewis, 12th Dist. Butler No. CA2001–09–209, 2002 WL 517991, *2 (April 8, 2002),

citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d 551 (7th Dist.

2000). In order to warrant the abrupt disruption of the child's home life, the change in

circumstances must be one “of substance, not a slight or inconsequential change.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159; Travis v. Travis, 2d Dist.

Clark No. 2006 CA 39, 2007–Ohio–4077, ¶ 23. “Further, R.C. 3109.04(E)(1)(a) creates

a rebuttable presumption that retaining the residential parent designated by the prior
                                                                                         -8-

decree is in the child's best interest.” Madden v. Madden, 2d Dist. Montgomery No.

15576, 1996 WL 339941, * 1. The statute creates this presumption in order to “provide

stability to the children's custodial status.”     Pennington v. Pennington, 2d Dist.

Montgomery No. 19092, 2002 WL 1252173, * 3. Moreover, as a general rule, relocation

alone is not enough to trigger a change of circumstances, unless the move also brings

with it an adverse or negative impact upon the child's welfare. Id., citing Vincenzo v.

Vincenzo, 2 Ohio App.3d 307, 441 N.E.2d 1139 (11th Dist. 1982), paragraph two of the

syllabus.

       {¶ 15} As noted, the magistrate’s decision was based upon the finding that Ms.

Baker’s relocation and the denial of parenting time to Mr. Baker constitute a change in

circumstances. We disagree and note that the record does not support the magistrate’s

finding that Ms. Baker denied parenting time to Mr. Baker.

       {¶ 16} The magistrate focused on three specific instances for the finding that Ms.

Baker was at fault with regard to the lack of visitation. The magistrate found that Ms.

Baker denied parenting with regard to one Christmas when Mr. Baker purchased the

children airline tickets so that they could visit with him over the Christmas school break.

The magistrate also found that, on one occasion, Mr. Baker drove to Texas to visit the

children but was not able to take them out of school for a visit. Finally, the magistrate

found that Ms. Baker denied visitation when she and the children returned to Ohio for a

family funeral.

       {¶ 17} We first note that with regard to an unspecified Christmas visitation, Mr.

Baker purchased plane tickets for the children to fly to Ohio. It appears that because he

failed to confer with Ms. Baker as to the dates of the children’s Christmas break, the plane
                                                                                             -9-


tickets were for a flight on a date that the children were still in school. But there is nothing

in this record to support a finding that the children did not spend that Christmas break

with Mr. Baker. At most, one might surmise that the plane tickets had to be exchanged

for a different date. Neither party testified that the children did not actually use the

subject tickets, nor was there any testimony that the visitation was denied.

       {¶ 18} We next address the occasion when Mr. Baker drove to Texas. It is not

apparent from the testimony whether the children were in school at the time and, if so,

whether they missed school for the visitation. But the magistrate assumed that the

attempted visitation occurred during the school term, and that Ms. Baker thus denied the

visitation. The magistrate appears to rebuke Ms. Baker for not letting the children miss

school.   However, the record demonstrates that Mr. Baker did have time with the

children. In fact, he and the children stayed in a hotel for the duration of the visit.

       {¶ 19} With regard to the visitation during the return to Ohio for a funeral, we note

that there is evidence that the children spent time with Mr. Baker. He testified that he

visited with them on someone’s porch for ten to fifteen minutes, and he further indicated

that, at some other point, the children were with him and that he had to return them to Ms.

Baker at 7:30 a.m. for the return trip home.

       {¶ 20} These three incidents were the only claimed denials of parenting time.

And, the magistrate’s findings regarding the alleged missed visitation are not supported

by the record. Thus, we conclude that the record reveals no basis for the magistrate’s

finding that Ms. Baker denied parenting time.

       {¶ 21} Further, while Mr. Baker testified that he did not see the children from the

time of the move in February 2012 until the summer of 2014 when the maternal
                                                                                         -10-


grandmother brought the children to Ohio for a visit, he did not testify that the lack of

visitation during this time period was caused by Ms. Baker acting to deny him time with

the children.4 The report of the Family Investigator states that the children informed the

investigator that they did spend summers with Mr. Baker. The testimony of Ms. Baker’s

mother also corroborates the claim that the children spent the summers with Mr. Baker.

Finally, the record is devoid of any other testimony that would indicate Mr. Baker has

missed any other planned parenting time.

      {¶ 22} As noted above, case law indicates relocation alone is not enough to

constitute a change of circumstances as any relocation will have some impact upon

parenting time for the non-custodial parent. We cannot conclude, from this record, that

Mr. Baker missed any more parenting time than any non-custodial parent affected by a

relocation would. From a review of the record, we cannot say that there was evidence

to support a finding that Ms. Baker denied parenting time so as to constitute a change of

circumstances.

      {¶ 23} This, however, does not end the discussion.          A child’s advancing age

coupled with a stated desire to reside with the non-custodial parent and related

considerations may constitute a change in circumstances. Ashbridge v. Berry, 2d Dist.

Greene No. 2009-CA-83, 2010-Ohio-2914, ¶ 10, citing In re James, 113 Ohio St.3d 420,

2007-Ohio-2335, ¶ 18; accord Moyer v. Moyer, 10th Dist. Franklin No. 96APF05-659,

1996 WL 729859 (Dec. 17, 1996).

      {¶ 24} In this case, the children resided with their mother for their entire lives. The


4
 The magistrate’s decision, for some reason, does not mention the month-long 2014
parenting time which occurred after the maternal grandmother brought the children to
Ohio.
                                                                                          -11-


children were interviewed by the magistrate and the Family Investigator. Both children,

who were ages thirteen and nine at the time of the hearing, clearly indicated that they

now wish to reside with their father. They further indicated that Ms. Baker does not

facilitate their ability to communicate with Mr. Baker when they are in Texas.          The

magistrate considered these factors, as well as the best interests of the children. The

court further found that any harm caused by a modification would be outweighed by the

advantages resulting from modification. We cannot say that this constitutes an abuse of

discretion as there is competent, credible evidence supporting the decision.

       {¶ 25} Accordingly, the first assignment of error is overruled.



                                   III. Court’s Jurisdiction

       {¶ 26} The second assignment of error asserted by Ms. Baker states:

       THE COURT WAS WITHOUT JURISDICTION TO DECIDE APPELLEE’S

       MOTIONS AND TO ORDER A CHANGE OF CUSTODY.

       {¶ 27} Ms. Baker claims that the trial court did not have jurisdiction to determine

this case as the children have resided in Texas since February 2012. She further claims

that, since subject matter jurisdiction can never be waived, we can review the issue

regardless of her failure to raise it prior to, or during, the hearing. In support, she cites

to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which she

claims acts to deprive the trial court of jurisdiction.

       {¶ 28} The UCCJEA acts to avoid jurisdictional conflicts and competition between

different states with regard to child custody litigation. The intent of the UCCJEA is to

ensure that a state court will not exercise jurisdiction over a child custody proceeding if a
                                                                                           -12-


court in another state is already exercising jurisdiction over the child in a pending custody

proceeding. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008–Ohio–853, ¶ 20–21. In

Ohio, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is codified

in R.C. Chapter 3127.

        {¶ 29} Consistent with the UCCJEA, R.C. 3127.15(A)(1) provides criteria for the

initial vesting of jurisdiction in an Ohio court over child custody disputes, and provides, in

part:

        Except as otherwise provided in section 3127.183 of the Revised Code, a

        court of this state has jurisdiction to make an initial determination in a child

        custody proceeding * * * if * * * [t]his state is the home state of the child on

        the date of the commencement of the proceeding.

        {¶ 30} “Home state” for purposes of R.C. Chapter 3127 is defined in R.C.

3127.01(B)(7) as follows:

        “Home state” means the state in which a child lived with a parent or a person

        acting as a parent for at least six consecutive months immediately

        preceding the commencement of a child custody proceeding and, if a child

        is less than six months old, the state in which the child lived from birth with

        any of them. A period of temporary absence of any of them is counted as

        part of the six-month or other period.

        {¶ 31} In this case, the divorce proceedings were initiated in Montgomery County

when Ms. Baker filed her initial complaint seeking a divorce and custody of the children.

Neither party disputes that both parents and the children lived in Ohio at that time.

Therefore, Ohio was the children's “home state” for purposes of the initial vesting of
                                                                                          -13-


jurisdiction over matters concerning their custody. Once initial jurisdiction is established,

R.C. 3127.16 provides that “* * * a court of this state that has made a child custody

determination consistent with section 3127.15 or 3127.17 of the Revised Code has

exclusive, continuing jurisdiction over the determination until the court or a court of

another state determines that the child [and] the child's parents * * * do not presently

reside in this state.” Since Mr. Baker continues to reside in Ohio, the Montgomery

County Domestic Relations Court retains continuing jurisdiction over the matter.

Accordingly, this case does not present a question of subject matter jurisdiction. The

issue, instead, is whether the trial court properly exercised that jurisdiction.

       {¶ 32} R.C. 3127.21(A) provides that “[a] court of this state that has jurisdiction

under this chapter to make a child custody determination may decline to exercise its

jurisdiction at any time if it determines that it is an inconvenient forum under the

circumstances and that a court of another state is a more convenient forum. The issue

of inconvenient forum may be raised upon motion of a party, the court's own motion, or

at the request of another court.” R.C. 3127.21(B) sets forth factors to be considered in

determining whether another state is the more appropriate forum.

       {¶ 33} Clearly, since the children lived in Texas from February 2012 until the

August 2017 hearing, there was a legitimate issue before the trial court concerning

whether Texas was the more appropriate forum. However, neither party raised the issue

with the magistrate, nor did the magistrate raise the issue on its own motion. Further,

there is no showing that Ms. Baker attempted to file any action in Texas. Ms. Baker did,

however, make a general allegation in her objections to the magistrate’s decision that the

trial court lacked subject matter jurisdiction.
                                                                                          -14-


        {¶ 34} Before we can resolve this issue, we must address what is the appropriate

standard of review. An appellate court conducts a de novo review of a trial court's

determination regarding the existence of subject matter jurisdiction, whether the trial court

has or lacks jurisdiction in the first place, because such determination is a matter of law.

Mulatu v. Girsha, 12th Dist. Clermont No. CA2011–07–051, 2011–Ohio–6226, ¶ 26. In

contrast, because the language of R.C. 3127.21 is permissive, an appellate court reviews

a trial court's decision to exercise or decline to exercise that jurisdiction on the basis of

inconvenient forum under an abuse of discretion standard. Witt v. Walker, 2d Dist. Clark

No. 2012-CA-58, 2013-Ohio-714, ¶ 28, citing Walter v. Liu, 193 Ohio App. 3d 185, 951

N.E.2d 457, ¶ 12 (8th Dist.), citing In re D.H., 8th Dist. Cuyahoga No. 89219, 2007-Ohio-

4069.

        {¶ 35} Clearly, there was continuing jurisdiction which the court elected to

exercise. Further, Ms. Baker did not raise the issue of jurisdiction until she objected to

the magistrate’s decision. And then, she did not make an inconvenient forum argument,

but rather argued that the court lacked subject matter jurisdiction. Thus, we cannot say

that the trial court abused its discretion in denying the objection regarding jurisdiction

since the court actually had subject matter jurisdiction, and since no one raised the

inconvenient forum argument.

        {¶ 36} Accordingly, the second assignment of error is overruled.



                                      IV. Conclusion

        {¶ 37} Both of Ms. Baker’s assignments of error being overruled, the judgment of

the trial court is affirmed.
                                                 -15-




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



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Charles W. Slicer, III
Mark A. Fisher
Hon. Timothy D. Wood
