[Cite as Reese v. Siwierka, 2013-Ohio-2830.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


MATTHEW REESE,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2012-P-0053
        - vs -                                 :

STACEY SIWIERKA,                               :

                 Defendant-Appellant.          :


Civil Appeal from the Portage County Court of Common Pleas, Juvenile Division.
Case No. 2009 JPI 00011.

Judgment: Affirmed.


Lyle Ray Jones, P.O. Box 592, Medina, OH 44258 (For Plaintiff-Appellee).

Eric R. Fink, 217 North Water Street, Kent, OH 44240; and Jill K. Fankhauser, 231
South Chestnut Street, P.O. Box 489, Ravenna, OH 44266 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant Stacey Siwierka, appeals the judgment of the Portage County

Court of Common Pleas, Juvenile Division, finding a change of circumstances that it

was in the best interest of her minor child, G.R., born December 30, 2007, to have

custody reallocated from appellant to G.R.’s father, Appellee Matthew Reese. For the

following reasons, we affirm the decision of the court below.

        {¶2}     Appellant and appellee are the unmarried parents of G.R.   After their

relationship ended, the parties entered into an agreement, dated November 9, 2009,
whereby appellant was designated the legal custodian. On February 12, 2010, the

parties entered into a subsequent agreement modifying appellee’s visitation schedule

due to his seasonal work schedule. This agreement again designated appellant as the

residential parent and legal custodian of G.R. The agreement was modified on July 12,

2010, and May 2, 2011, allowing appellee to have extended companionship time with

G.R.

        {¶3}   On August 26, 2011, appellant filed a notice of intent to relocate and a

request for an out-of-state visitation order. A hearing was scheduled for October 5,

2011.    On that date, appellee filed a motion to modify child support, custody, and

parenting time.    In his motion, appellee requested that he be named as the legal

custodian and residential parent of G.R.        The parties then reached an agreement

modifying visitation time, and appellee withdrew his motion to modify custody. This

agreement was read into the record on October 5, 2011. Appellee’s attorney was to

memorialize the agreement within 14 days.

        {¶4}   Prior to the agreement being journalized, appellee, through new counsel,

filed a “motion for oral hearing on plaintiff’s motion for custody/accord not

reached/objections to magistrate’s decision.”      Appellee noted that the parties had

reached an agreement on parenting time; however, it was not in the best interest of

G.R., and there had been a change in circumstances. Appellee attached an affidavit

averring that he has had continuous parenting time with G.R. since May 2009; that at

the October 5, 2011 hearing, he was told by his former attorney that if he did not take

the “visitation/parenting agreement” he would only have standard out-of-state parenting;

that he was nervous he would not have parenting time with G.R.; that he does not think




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it is in G.R.’s best interest to move to Maryland; and that there is a change of

circumstances because G.R. will be living six hours away.

       {¶5}   On October 17, 2011, appellee’s previous counsel filed a motion to

withdraw as counsel. The magistrate ordered that upon submission of the memorialized

entry counsel agreed to prepare, the motion to withdraw would be considered.

       {¶6}   On October 24, 2011, the memorialized journal entry was filed with the

court, and the motion to withdraw as counsel was granted.

       {¶7}   On October 27, 2011, appellee filed a motion to modify custody and

objections to the magistrate’s decision.

       {¶8}   The trial court held a hearing on appellee’s “motion for oral hearing on

plaintiff’s motion for custody/accord not reached/objections to magistrate’s decision.”

This hearing was held on November 1, 2011. In a November 2, 2011 decision, the

magistrate decided that the joint agreement entered into in open court on October 5,

2011, is binding on the parties. The magistrate granted appellee leave to amend the

motion to modify custody filed on October 27, 2011. The magistrate’s decision was

adopted by the trial court on the same day.

       {¶9}   Since appellee’s objections to the magistrate’s decision filed October 27,

2011, was still outstanding, appellant filed a motion for interim order on November 3,

2011. In that motion, appellant requested that the out-of-state visitation schedule be

utilized. The trial court filed the interim order on November 7, 2011, terminating the

parties’ in-state visitation schedule and granting appellee out-of-state visitation rights.

       {¶10} A hearing was held on December 7, 2011, on appellee’s objections to the

magistrate’s decision of October 24, 2011, adopting the agreed settlement entry of the




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parties and the magistrate’s decision of November 2, 2011. In a December 9, 2011

entry, the trial court again determined the joint agreement of October 5, 2011, is binding

on the parties. The trial court further modified the agreement to reflect that appellant

shall be responsible for transporting G.R. to and from appellee’s parenting time, and

that once G.R. reached school age, appellee shall exercise visitation for extended

summer months. The interim order of visitation was vacated and visitations were to be

conducted in conformance with the magistrate’s decision of October 24, 2011. Appellee

filed an amended motion to modify parent rights and responsibilities on December 29,

2011. In his motion, appellee noted that “there are circumstances which were either

unknown to the court or have occurred since original designation of custodial parent

which give rise to change of circumstances and best interests, warranting modification.”

       {¶11} A hearing was held on March 28, 2012. The magistrate determined the

following:

       {¶12} [S]ince February 12, 2010, a change has occurred in the

             circumstances of [G.R.] and/or Mother. This finding of a change of

             circumstances is based not only upon the move out of state and the

             resulting impact on [G.R.’s] relationship with Father and all of

             [G.R.’s] relatives, but also upon Mother’s conduct regarding

             Father’s parenting time, including the deprivation of Father’s

             parenting time and interference with telephone calls[.]

       {¶13} Appellee was designated the residential parent and legal custodian of

G.R. Further, appellant was entitled to parenting time with G.R. pursuant to the October




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24, 2011 magistrate’s decision, with the designation of the term “Mother” and “Father”

being inverted.

       {¶14} Neither the trial court nor this court granted appellant’s request to stay.

Thereafter, appellant filed a timely notice of appeal.

       {¶15} As her first assignment of error, appellant alleges:

       {¶16} “The Trial Court erred by finding a substantial change of circumstances

had occurred in the child and/or Mother.”

       {¶17} At the outset, we note that a trial court has broad discretion in its

determination of parental custody rights.        Booth v. Booth, 44 Ohio St.3d 142, 144

(1989).   A trial court’s custody determination should not be disturbed unless it

constitutes an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23 (1990). An

abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal

decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶61-62,

quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶18} The Ohio Supreme Court has stated the following with regard to a

reviewing court’s duty of deference to the trial court when making a custody

determination:

       {¶19} The discretion which a trial court enjoys in custody matters should

              be accorded the utmost respect, given the nature of the proceeding

              and the impact the court’s determination will have on the lives of

              the parties concerned. The knowledge a trial court gains through

              observing the witnesses and the parties in a custody proceeding

              cannot be conveyed to a reviewing court by a printed record. In




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                this regard, the reviewing court in such proceedings should be

                guided by the presumption that the trial court’s findings were indeed

                correct. (Internal citation omitted.) Miller v. Miller, 37 Ohio St.3d

                71, 74 (1988).

          {¶20} Under this assigned error, appellant first maintains the trial court erred in

selecting the date of February 12, 2010—the last time the court specifically named

appellant as the residential parent and legal custodian of G.R.—as the “look back” date

for determining whether a change of circumstances had occurred. Appellant argues

that the trial court should have instead chosen the “look back” date of October 5,

2011—the date appellee filed a motion to reallocate custody of G.R. Further, appellant

argues that this court has established precedent that the “look back” date can be any

prior decree that substantially impacts the child’s living arrangements.

          {¶21} R.C. 3109.04(E)(1)(a), which addresses modification of a prior “decree,”

states:

          {¶22} 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




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             prior shared parenting decree, unless a modification is in the best

             interest of the child and one of the following applies:

      {¶23} (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.

      {¶24} (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.

      {¶25} (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.

      {¶26} We find appellant’s argument that the trial court should have utilized the

October 5, 2011 judgment entry as the “look back” date to be without merit. That date

only modified the parties’ parenting-time rights.       The Ohio Supreme Court has

recognized that, although related, visitation and custody are “distinct legal concepts.”

“Custody” resides in the party or parties who have the right to ultimate legal and

physical control over a child.      “Visitation” resides in a noncustodial party and

encompasses that party’s right to visit the child.” Braatz v. Braatz, 85 Ohio St.3d 40, 44

(1999), citing In re Gibson, 61 Ohio St.3d 168, 171 (1991).

      {¶27} The plain language of R.C. 3109.04(E)(1)(a), governing whether a court

may modify custody, states, in pertinent part, that “[t]he court shall not modify a prior

decree allocating parental rights and responsibilities for the care of children.” “Parental

rights and responsibilities” as defined by the Ohio Supreme Court is “‘the right to




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ultimate legal and physical control of a child.’” Id., quoting Gibson, supra. Therefore,

the trial court did not err in looking back to February 12, 2010, to determine whether a

change of circumstances had occurred.

       {¶28} Next, appellant argues that testimony at trial did not support a finding of a

change in circumstances. However, based on our standard of review, we cannot say

the trial court erred in finding a change of circumstances.

       {¶29} A change in custody analysis normally creates a rebuttable presumption in

favor of the custodial parent retaining custody unless the change is one that would have

a “material and adverse effect upon the child.” Rohrbaugh v. Rohrbaugh, 136 Ohio

App.3d 599, 604-605 (7th Dist.2000).

       {¶30} Therefore, it necessarily follows that the burden is on the party

              seeking a change in custody to demonstrate sufficient indicia of

              these three factors [change of circumstances, best interest of the

              child, and the harm likely to be caused by a change of environment

              is outweighed by the advantages of the change of environment to

              the child] to rebut this presumption and justify a modification.

              Salisbury v. Salisbury, 11th Dist. Nos. 2005-P-0010 & 2005-P-

              0084, 2006-Ohio-3543, ¶91.

       {¶31} We note that a change in circumstances may include “a custodial parent’s

interference with visitation by a noncustodial parent” and “a breakdown in

communication between the parents and their inability to communicate and cooperate.”

Headley v. Headley, 11th Dist. No. 99-A-0049, 2000 Ohio App. LEXIS 4556 (Sept. 29,

2000), *12; Sypherd v. Sypherd, 9th Dist. No. 25815, 2012-Ohio-2615, ¶20.




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       {¶32} The record is replete with instances, and the parties acknowledged, that

they are unable to effectively communicate with each other. Further, appellant was

found in contempt for her failure to provide appellee with Sunday parenting time on nine

separate occasions, which she purged by providing appellee the opportunity for

compensatory parenting time.       Regardless of whether appellant purged herself of

contempt, this conduct demonstrates that appellant, as the custodial parent, interfered

with appellee’s visitation.   Further, the evidence at trial indicated that all of G.R.’s

telephone calls with appellee are monitored and that appellant did not provide appellee

access to G.R.’s medical records without court intervention. There also was evidence

that G.R. was hesitant and resistant in interacting with appellee’s family during their

monthly gatherings.

       {¶33} In her brief, appellant maintains that she would not have moved to

Maryland if doing so would threaten her custody, companionship, and time with G.R.

Appellant states that she did not move to Maryland until after the parties reached an

agreement, which was approved by the trial court. Here, as evidenced by the trial

court’s judgment entry, appellant’s move, standing alone, was not a change of

circumstances. In its judgment entry, the trial court acknowledges that after appellant

filed a notice of intent to relocate and requested modification of parental visitation, the

parties subsequently reached an agreement with respect to parenting time.             This

agreement was approved by the trial court; however, appellee modified his change of

custody motion after appellant moved with G.R., and the hearing explored whether a

change of circumstances had occurred since the February 12, 2010 order designating

appellant as the residential parent and legal custodian of G.R.




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       {¶34} After a thorough review of the record, we cannot conclude that the trial

court abused its discretion by finding that a change of circumstances had occurred

since February 12, 2010. It is true that appellant’s move to Maryland was in some

respect approved by appellee due to his initial agreement with that arrangement. One

could envision a situation where a party would agree to such a move, and then use it as

the basis for objection. The trial court should be quite wary of the possibility of one

party setting up another party for failure. It is clear, however, that the trial court was

aware of that possibility, and we must presume it was factored in accordingly. In light of

the foregoing, the trial court acted within its sound discretion in concluding that a

change of circumstances had occurred. Consequently, appellant’s first assignment of

error is overruled.

       {¶35} As her second assignment of error, appellant alleges:

       {¶36} “The Trial Court erred by finding that it was in the child’s best interests to

reallocate custody to Father.”

       {¶37} Under this assigned error, appellant maintains that although the trial court

engaged in the best interest analysis, it drew improper conclusions and failed to

acknowledge that the presumption exists to retain the custodial parent. To reiterate,

this court reviews custody determinations under an abuse of discretion standard.

       {¶38} The custody modification statute, R.C. 3109.04(F)(1), sets forth a list of

the following factors to consider in determining the child’s best interests: (a) the wishes

of the child’s parents; (b) the child’s wishes, if applicable; (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; (d) the child’s adjustment to home, school,




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and community; (e) the mental and physical health of all persons involved in the

situation; (f) the parent more likely to honor and facilitate court-approved parenting time

rights or visitation and companionship rights; (g) whether either parent has failed to

make all child support payments; (h) whether either parent or any member of the

household of either parent previously has been convicted of certain criminal acts; (i)

whether the residential parent has continuously and willfully denied parenting time

rights; (j) whether either parent has established a residence, or is planning to establish a

residence, outside the state.

       {¶39} In its judgment entry, the court specifically made findings regarding the

best interest factors enumerated in (a), (c), (d), (e), (f), (i), and (j). The trial court found

that both parties properly care for G.R.; both parties have a strong relationship with

G.R.; neither party has medical or mental health concerns; appellant was found in

contempt of court for failing to comply with parenting time; appellant moved out of state;

and if G.R. returns to live with appellee, he will return to the environment in which he

was raised.

       {¶40} Based on a review of the evidence and the trial court’s judgment entry, we

cannot say the trial court abused its discretion in finding that it was in the best interest of

G.R. to reallocate custody to appellee.

       {¶41} Appellant’s second assignment of error is without merit.

       {¶42} Appellant’s third assignment of error states:

       {¶43} “The Trial Court Erred by failing to properly weigh the harm of a change in

custody would bring to the child [sic].”




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       {¶44} Appellant maintains the reallocation of custody from appellant to appellee

does not contemplate the harm caused to G.R. Further, appellant argues that G.R. has

lived primarily with her his entire life and is thriving in his environment.

       {¶45} In its entry, the trial court specifically found that the harm likely caused by

the change in environment would be outweighed by the advantages of the change in the

environment of G.R. R.C. 3109.04(E)(1)(a)(iii). The trial court found that G.R. would

return to an area and environment where he had been raised his entire life, and G.R.

thrived in this environment. Additionally, G.R. will have a meaningful relationship with

his extended family, and appellee has played an active and consistent role in the caring

for and raising of G.R.

       {¶46} In making this finding, we cannot say the trial court abused its discretion.

       {¶47} Appellant’s third assignment of error is without merit.

       {¶48} The judgment of the Portage County Court of Common Pleas, Juvenile

Division, is hereby affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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