[Cite as In re M.P., 2012-Ohio-2334.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

                                               :

                                               :    C.A. CASE NO. 2011 CA 71
IN THE MATTER OF: M.P.
                                               :    T.C. CASE NO. C41808

                                               :    (Civil Appeal from
                                                    Common Pleas Court,
                                               :    Juvenile Division)

                                           .........

                                         OPINION

                             Rendered on the 24th day of May, 2012.

                                           .........

David S. Peterson, Atty. Reg. No. 0007836, 87 S. Progress Dr. Xenia, OH 45385
      Attorney for Plaintiff-Appellee

Mark Edward Stone, Atty. Reg. No. 0024486, Brian A. Kruse, Atty. Reg. No. 0087411,
3836 Dayton-Xenia Road, Beavercreek, OH 45432
      Attorneys for Defendant-Appellant

                                           .........

GRADY, P.J.:

        {¶ 1} Pamela P. appeals from a final order modifying an allocation of parental rights

and responsibilities.

        {¶ 2} Pamela and Rodney P. are the parents of M.P., a minor child. In December of

2009, Rodney filed a complaint for allocation of parental rights and responsibilities. On
                                                                                               2

March 8, 2010, the juvenile court journalized an agreed order designating Pamela the

residential parent of M.P. and awarding parenting time to Rodney. (Dkt. 10.)

         {¶ 3} Page two of the March 8, 2010 agreed judgment and order that allocated

parental rights and responsibilities provided, in part:

                Relocation Notice.      If the residential parent intends to move to a

         residence other than the residence specified in the parenting time order or

         decree of the court, the parent shall file a notice of intent to relocate with the

         court that issued the order or decree. Except as provided in divisions (G)(2),

         (3), and (4) of this section, the court shall send a copy of the notice to the

         parent who is not the residential parent. Upon receipt of the notice, the court,

         on its own motion or the motion of the parent who is not the residential parent,

         may schedule a hearing with notice to both parents to determine whether it is in

         the best interest of the child to revise the parenting time schedule for the child.

         {¶ 4} On April 1, 2011, Pamela filed a Notice of Intent to Relocate from Xenia, Ohio

to Punta Gorda, Florida in June of 2011. (Dkt. 25.) Rodney filed a Complaint for Custody

of M.P. A Guardian ad Litem was appointed.

         {¶ 5} On August 11, 2011, a magistrate issued a decision finding that it is in the best

interest of M.P. for Pamela to retain custody of M.P. and “to allow the current parenting time

to remain in effect.” (Dkt. 44.) The Guardian Ad Litem had recommended that Pamela

remain M.P.’s residential parent. Rodney filed objections to the magistrate’s decision.

         {¶ 6} Following a hearing, the juvenile court sustained Rodney’s objections, and

found:
                                                                                            3

               that there has been a change in conditions for the child since the

       issuance of the prior decree of custody. The circumstances in this case were

       more significant than the filing of the notice of intent to move. For all intents

       and purposes, Pamela had moved to Florida and, thus, altered [M.P.’s] living

       situation, which included his contact and relationship with friends and

       relatives.

       {¶ 7} The court also found that a change in custody was in the best interests of M.P.,

and that the harm likely to be caused by placing M.P. with Rodney is outweighed by the

advantages of awarding custody to Rodney and maintaining M.P.’s ties to his community in

Ohio. (Dkt. 62.) The court modified its March 8, 2010 allocation of parental rights and

responsibilities and designated Rodney the residential parent of M.P. R.C. 3109.04(E)(1)(a).

Pamela filed a timely notice of appeal.

       {¶ 8} First Assignment of Error:

       {¶ 9} “THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT A

CHANGE OF CIRCUMSTANCES HAD OCCURRED.”

       {¶ 10} In AAAA Enterprises, Inc v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), the Supreme Court held:

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

       (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is

       to be expected that most instances of abuse of discretion will result in decisions

       that are simply unreasonable, rather than decisions that are unconscionable or
                                                                                              4

        arbitrary.

                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.

        {¶ 11} R.C. 3109.04(E)(1)(a) governs the modification of an existing decree

allocating parental rights and responsibilities. R.C. 3109.04(E)(1)(a) provides, in pertinent

part:

                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.
                                                                                            5

       (Emphasis added.)

       {¶ 12} In Masters v. Masters, 69 Ohio St.3d 83, 630 N.E.2d 665 (1994), a mother who

had been designated the residential parent of a child filed a motion with the common pleas

court, as required by the court’s local rules, requesting permission to remove her daughter’s

residence from the State of Ohio. In response, the father of the child filed a motion for

modification of custody. The court granted the father’s motion, stating, at 84:

               Based upon the independent review, this Court concludes that Monica

       Masters does intend to leave Ohio and relocate in Tennessee. She states the

       same in her motion.      To now argue that no such move is imminent is

       ludicrous. The removal of the child from Ohio to Tennessee is a significant

       change of circumstances to permit this Court to consider a modification of

       custody.

       {¶ 13} On appeal, the Supreme Court found that the trial court abused its discretion

when it granted the father’s motion to modify custody. The Court stated, at 86:

               We hold that it is an abuse of discretion for a court to use a document

       filed in compliance with a local rule as the only evidence to remove the child

       from the mother’s custody. The filing of a motion to remove the child from

       Ohio that merely reflects the mother’s “desire” to leave the state does not on its

       own constitute a substantial change in circumstances under former R.C.

       3109.04.

               To hold to the contrary would produce an unconscionable result. A

       custodial parent contemplating the possibility of moving from the state would
                                                                                              6

       be deterred from complying with the local rule, because, by complying with the

       rule, she would be immediately jeopardizing her custodial rights with her child

       - - whether or not the motion is granted. This absurd result was not intended

       by the General Assembly when it specifically delineated in former R.C.

       3109.04(A) those circumstances which warrant a modification of custody.

               The trial court abused its discretion because we hold it is

       unconscionable for a trial court to modify custody when the only evidence

       supporting its conclusion is the filing of a motion to remove the child from the

       state, which reflects a desire to leave the state and which must be filed

       according to local rule. The record reveals no defensible reason to modify the

       custody of Meredith Masters.

       {¶ 14} Masters involved a notice of relocation required by a local rule of court. In

the present case, the notice is required by the terms of the divorce decree. There is no

functional difference between the two requirements. Further, the ultimate issue Masters

addresses is not the genesis of a notice requirement but whether the notice, when given,

constitutes a change of circumstances for purposes of R.C. 3109.04(E)(1)(a).

       {¶ 15} We read Masters to require more than an intention or desire on the part of a

custodial parent to leave the state in order for a trial court to find a change of circumstances

necessary to modify a prior order allocating parental rights and responsibilities. Rather, in

order to modify a prior order allocating parental rights and responsibilities, R.C.

3109.04(E)(1)(a) requires proof that a change in circumstances has occurred. The use of the

past tense by the General Assembly means that a modification may be ordered only after a
                                                                                               7

move from the state has already occurred. A contemplated move out of state, however

“imminent,” cannot constitute a change of circumstances pursuant to R.C. 3109.04(E)(1)(a),

because such a move has not yet occurred.

       {¶ 16} The holding in Masters and the plain language of R.C. 3109.04(E)(1)(a) ensure

that when a court applies the best interest factors in R.C. 3109.04(F)(1), the court will have

before it the actual evidence relative to the factors applicable to a modification after the

change in circumstances has occurred. That evidence is reasonably needed to rebut the

presumption established by R.C. 3109.04(E)(1)(a) in favor of retaining the residential parent

designated in the decree or prior order.

       {¶ 17} We note that, as the notice of relocation requirement is established in the

decree of divorce, its expressed purpose is to permit the court “to determine whether it is in

the best interest of the child to revise the parenting time schedule for the child.” Unlike in

Masters, which limited the required notice to relocation from Ohio to another state, the notice

in the decree in the present case applies to any “move to a residence other than the residence

specified in the parenting time order.” A revised parenting time order is certainly appropriate

when a move creates a substantially greater distance factor, as a move to Florida would.

However, the desirability of establishing a revised schedule conditioned on a contemplated

move is of a different order of significance from a change of circumstances necessary to

modify a prior designation of a child’s residential parent and legal custodian.

       {¶ 18} The trial court abused its discretion in finding a change in circumstances had

occurred based on Pamela’s intent to move to Florida. In that connection, we note that

Pamela testified that she would not relocate if it resulted in a loss of the custody of her child
                                                                                              8

she was previously awarded. The first assignment of error is sustained.

       {¶ 19} Second Assignment of Error:

       {¶ 20} “THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT AWARDING CUSTODY TO RODNEY IS IN M.P.’S BEST INTEREST.”

       {¶ 21} Third Assignment of Error:

       {¶ 22} “THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THE HARM LIKELY CAUSED BY AWARDING CUSTODY TO RODNEY IS

OUTWEIGHED BY ITS BENEFITS.”

       {¶ 23} Our disposition of the first assignment of error makes it unnecessary to address

the second and third assignments of error. Therefore, the second and third assignments of

error are overruled. App.R. 12(A).

       {¶ 24} Fourth Assignment of Error:

       {¶ 25} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

PAMELA’S NOTICE OF INTENT TO RELOCATE.”

       {¶ 26} Pamela filed a notice of intent to relocate to Florida. The trial court did not

directly address the notice in its order modifying the allocation of parental rights and

responsibilities. Rather, the trial court modified the prior allocation of parental rights and

responsibilities by designating Rodney the residential parent, which rendered the notice of

intent to relocate moot.

       {¶ 27} In our disposition of the first assignment of error we found that the trial court

abused its discretion by modifying the prior allocation of parental rights and responsibilities.

The trial court did not grant or deny any relief with regard to Pamela’s notice of intent to
                                                                                              9

relocate to Florida. The fourth assignment of error is overruled.

       {¶ 28} Having sustained the first assignment of error, we will reverse the judgment of

the trial court and remand the cause for further proceedings consistent with this Opinion.

DONOVAN, J. concurs.

HALL, J., concurring:

       {¶ 29} I agree with the result reached by the majority. However, I am concerned about

the terminology in paragraph 15, which indicates that “[a] contemplated move out of state,

however ‘imminent,’ cannot constitute a change of circumstances * * *” required for a change

of custody of children. In my view, an imminent relocation, coupled with substantial steps in

furtherance of that relocation, can be sufficient to find a change of circumstances. DeVall v

Schooley, 5th Dist No. CT 2006-0062, 2007-Ohio-2582. “A proposed move along with a

finding that the move will harm the welfare of the children involved or cause a disruption of

ongoing relationships with extended family can constitute a change of circumstances.”

Valentine v. Valentine, 12th Dist. Butler No. CA2010-12-320, 2012-Ohio-426. I therefore

disagree with the language of paragraph 15 of the lead opinion.

       {¶ 30} Nevertheless, the problem in this case is that the mother testified that she

would not move to Florida without her child. (Magistrate’s Finding of Fact #6 and Conclusion

of Law #7). That makes this case, for analytical purposes, almost identical to In re Dissolution

of Marriage of Kelly, 7th Dist. No. 09 CA 863, 2011-Ohio-2642. There, the mother desired to

move to Wyoming but had testified from the beginning that she would not move without her

child. The trial court found a change of circumstances, but the court of appeals reversed,

stating: “Considering that no actual relocation had taken place and that [mother] testified she
                                                                                            10

would not move to Wyoming without [her child], the trial court abused its discretion in

finding a change in circumstances in this case.” Id. at ¶40. That is the situation here. If the

move were imminent, substantial steps had been taken, and the mother stated she was going to

move, there would be a change of circumstances. But because she testified she would not

leave without her child, I believe the trial court abused its discretion in finding a change of

circumstances. Accordingly, I agree that the matter should be remanded to the trial court for

further proceedings.

                                          .........

Copies mailed to:

David S. Peterson, Esq.
Mark Edward Stone, Esq.
Brian A. Kruse, Esq.
Hon. Robert W. Hutcheson
