[Cite as Rohrbach v. Rohrbach, 2015-Ohio-4728.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              SENECA COUNTY




MICHAEL ROBERT ROHRBACH,

        PLAINTIFF-APPELLANT,                         CASE NO. 13-15-14

        v.

STEPHANIE ANN ROHRBACH,                              OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Seneca County Common Pleas Court
                           Domestic Relations Division
                          Trial Court No. 2012 DR 0005

                      Judgment Reversed and Cause Remanded

                        Date of Decision: November 16, 2015




APPEARANCES:

        John C. Filkins for Appellant
Case No. 13-15-14


       {¶1} Plaintiff-appellant, Michael R. Rohrbach (“Michael”), appeals the

March 31, 2015 judgment of the Seneca County Court of Common Pleas

overruling his objections to the magistrate’s decision and granting the motion to

modify    custody     filed   by   defendant-appellee,   Stephanie   A.   Rohrbach

(“Stephanie”). On appeal, Michael argues that the trial court erred in finding a

change in circumstances warranting the modification of the court’s prior custody

decree.

       {¶2} The parties were divorced on August 31, 2012. At that time, the

parties entered into a shared parenting plan regarding the custody of their two

minor children. The shared parenting plan stated the following regarding the

children’s living arrangements.

       3. LIVING ARRANGEMENTS

       Both parties shall be designated the residential parent and legal
       custodian of the minor children. First and foremost the
       children’s living arrangements shall be as the parties can agree.
       In the event the parties cannot agree then the living
       arrangements shall be as follows:

       Mother shall have parenting time with the minor children as set
       forth in Local Court Rule 40 and additional time when Father is
       absent from the home for more than four hours. Mother and
       Father agree to give deference to the needs and desires of the
       children as it pertains to the exercise of parenting time.

(Doc. No. 76 at 2).




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       {¶3} Michael was named the child support obligor for purposes of the

shared parenting plan and was determined to have an annual child support

obligation of $2,410.54. However, the parties agreed to deviate child support to

zero dollars. Michael also agreed to pay seventy percent of the children’s school

fees, school expenses, and fees and expenses for extracurricular activities. The

shared parenting plan stated that Michael was to provide health insurance for the

children and that each party shall provide a reasonable amount of clothing for the

children.

       {¶4} In 2013, the parties’ oldest child graduated high school and was

emancipated.

       {¶5} On August 12, 2014, Stephanie filed a “Motion for Modification of

Shared Parenting Plan and Motion for Child Support.” In this motion, Stephanie

alleged that a change in circumstances had occurred since the prior parenting

decree pertaining to their youngest child, Kali, who was sixteen-years-old at the

time of the filing. Specifically, Stephanie claimed that Kali had changed her

living arrangements and now resided in Stephanie’s home full-time, whereas

before Kali was primarily living with Michael. Stephanie asserted that Michael

refused to pay for Kali’s basic necessities and other obligations which in turn had

created a financial hardship on her. Stephanie also maintained that modification

of the prior custody order was in Kali’s best interest. Stephanie requested that the


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trial court designate her as Kali’s residential parent and issue an order obligating

Michael to pay her child support.

       {¶6} On December 15, 2014, the magistrate conducted an evidentiary

hearing on Stephanie’s motion for modification where each party provided

testimony and submitted exhibits relating to their incomes and financial positions.

The testimony revealed that up until June of 2014 the parties had exercised their

parenting time with Kali as follows. During the week Kali resided with Michael.

Specifically, Michael drove Kali to school in the morning and Stephanie picked

her up from school or her extracurricular activities in the afternoon. Stephanie

spent time with Kali until 8:00 p.m. or 9:00 p.m. at which time she returned Kali

to Michael’s residence for the night. One of the primary reasons for implementing

this schedule was that Stephanie worked from 5:00 a.m. to 1:00 p.m. and could not

take Kali to school in the morning. Therefore, Kali stayed overnight with Michael

during the week so that he could provide her with transportation to school. The

parties then exercised their respective parenting time with Kali on alternating

weekends.

       {¶7} This schedule changed in June of 2014 when Kali finished the school

year and when she turned sixteen-years-old and received her operator’s license.

Kali purchased her own vehicle and drove herself to her summer job. Kali also

started primarily residing with Stephanie, but still visited Michael several times a


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week. Once the 2014-2015 school year began, Kali no longer needed Michael to

take her to school and continued to reside primarily with Stephanie.

      {¶8} Stephanie testified at the hearing that she had asked Michael to pay for

some of Kali’s expenses, such as clothing and school supplies, but he refused. She

stated that she paid for Kali’s car insurance and maintained that Michael failed to

provide his share of financial support for Kali’s day to day and incidental

expenses. Michael disputed this contention. He testified that he paid for Kali’s

cell phone bill and had paid for her school expenses and clothing when asked. He

also claimed to give Kali spending money multiple times a week ranging from

$10.00 to $40.00 and provided Kali with meals when she visited him. As for

Kali’s medical expenses, the testimony at the hearing indicated that Michael was

no longer employed at the job he had when the prior custody decree was issued

and his current employer did not provide private health insurance. Due to neither

party being able to afford private health insurance, Kali was insured under the

“Buckeye Card.”

      {¶9} Michael testified that in July of 2014, approximately two weeks after

Kali began consistently residing overnight at Stephanie’s house, Stephanie called

him and demanded that he give her money to meet the increased daily cost to

support Kali. A month later, Stephanie filed this motion to modify the prior

custody order. Michael maintained that there was no disagreement between the


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parties regarding either the shared parenting plan or with whom Kali would reside.

He also stated that he continued to have a good relationship with Kali and she

visited him every other day for a few hours. He acknowledged that Kali spent

more time with Stephanie since the summer of 2014, but also stated that up until

that point Kali had primarily resided with him since the divorce in 2012. The

record also indicates that Kali continued to perform well academically after she

decided to change her living arrangements and did not appear to be adversely

affected by the new custody schedule.

      {¶10} On December 23, 2014, the magistrate issued his decision on the

matter. The magistrate noted in his decision that he had conducted an in-camera

interview with Kali in which she had expressed her wish “to continue living full-

time with her mother, and to see her father as she desires.” (Doc. No. 117 at 3).

The magistrate concluded that a change in circumstances had occurred based on

Kali’s decision to change her living arrangements and recommended that

Stephanie be designated the residential parent and Michael be designated the non-

residential parent. The magistrate also recommended that a child support order be

issued obligating Michael to provide Stephanie with a monthly child support

payment.

      {¶11} On January 6, 2015, Michael filed preliminary objections to the

magistrate’s decision, which were later supplemented with the filing of the hearing


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transcript.    Michael argued Stephanie “failed to establish that a change of

circumstances of sufficient significance to warrant a modification of the prior

shared parenting plan” had occurred.      (Doc. No. 128 at 3).    The trial court

subsequently overruled Michael’s objections and in its March 31, 2015 judgment

entry adopted the magistrate’s decision and issued orders in accordance with that

decision.     The trial court granted Stephanie’s motion for modification of the

shared parenting plan and motion for child support and ordered the following:

       The Plan should be modified. Defendant should be designated
       the Child’s primary residential parent, and Plaintiff should be
       designated the non-residential parent. Parenting time under the
       Plan should be as the parties can agree, and if they cannot agree,
       then in accordance with the Seneca County Local Rules of
       Court, with Defendant be allotted the time designated for the
       residential parent, and Plaintiff be allotted the time designated
       to the non-residential parent.

(Doc. No. 130 at 4). The trial court ordered that Michael be responsible for a

monthly child support obligation of $343.33 when private health insurance is

being provided, and a monthly child support obligation of $310.95 plus $80.00 in

cash medical support when private health insurance is not being provided.

       {¶12} Michael subsequently filed this appeal, asserting the following

assignment of error.

                           ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN
       MODIFYING THE PARTIES’ SHARED PARENTING PLAN
       AND ORDERING THE APPELLANT TO PAY CHILD

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       SUPPORT WHEN THERE HAD BEEN NO CHANGE IN
       CIRCUMSTANCES WHICH WERE NOT CONTEMPLATED
       AT THE TIME OF THE ISSUANCE OF THE SHARED
       PARENTING PLAN.

       {¶13} On appeal, Michael argues that the evidence at the hearing was

insufficient to establish that a change in circumstances had occurred in order to

modify the parties’ shared parenting plan approved by the trial court in their 2012

divorce decree.

       {¶14} Section 3109.04(E)(1)(a) of the Revised Code governs the

modification of a prior custody decree and states:

       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:

      (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.

      (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.



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      (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.

       {¶15} The statute creates a strong presumption in favor of retaining the

residential parent designation and precludes a trial court from modifying a prior

parental rights and responsibilities decree unless the court finds all of the

following: (1) a change occurred in the circumstances of the child, the child’s

residential parent, or a parent subject to a shared-parenting decree, (2) the change

in circumstances is based upon facts that arose since the court entered the prior

decree or that were unknown to the court at the time of the prior decree; (3) the

child’s best interest necessitates modifying the prior custody decree; and (4) one of

the circumstances specified in R.C. 3109.04(E)(1)(a)(i)-(iii) applies.         In re

Brayden James, 113 Ohio St.3d 420, 2007–Ohio–2335, ¶ 14. Thus, the threshold

question in a parental rights and responsibilities modification case is whether a

change in circumstances has occurred.

       {¶16} “In determining whether a change in circumstances has occurred so

as to warrant a change in custody, a trial judge, as the trier of fact, must be given

wide latitude to consider all issues which support such a change.” Davis v.

Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the syllabus.             The

determination that a change in circumstances has occurred for the purposes of R.C.

3109.04 “should not be disturbed, absent an abuse of discretion.” Id. at paragraph


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one of the syllabus. “Abuse of discretion” implies that the decision rendered was

arbitrary or unreasonable.     Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

However, the trial court’s discretion is not absolute, and it must abide by R.C.

3109.04 in making decisions concerning custody. Erwin v. Erwin, 3d Dist. Union

No. 14-04-37, 2005-Ohio-1603, at ¶ 7, citing Miller at 74.

        {¶17} With these parameters in mind, we turn to the instant case to review

whether the record establishes that a change in circumstances occurred within the

meaning of the statute to warrant a modification of the parties’ shared parenting

plan.   The trial court made the following finding relative to the change in

circumstances inquiry:

        Based upon the testimony and evidence received, the Court finds
        that, based upon facts that have arisen since the filing of the
        Decree, namely that the Child resides with Defendant, and does
        not regularly exercise parenting time with Plaintiff for visits any
        more than 2 to 3 hours in length, that a change in circumstances
        has occurred, and that it is in the best interest of the Child that
        the prior Plan be modified.          Any negative effects of a
        modification of the Plan are outweighed by benefits to the Child.

(Doc. No. 130 at 3).

        {¶18} The only “change in circumstances” identified by the trial court in its

judgment entry was Kali’s decision to modify her living arrangements.

Specifically, Kali’s choice to reside in Stephanie’s home full-time instead of in

Michael’s, where she had been primarily living since the prior custody decree. At

the outset, we note it is generally recognized that a child’s wishes regarding

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custody standing alone are not enough to constitute a change in circumstances.

See McLaughlin v. McLaughlin—Breznenick, 3d Dist. Logan No. 8-06-06, 2007-

Ohio-1087, ¶ 28, citing Moyer v. Moyer, 10th Dist. Franklin No. 96APF05-659

(Dec. 17, 1996); see also Pryor v. Hooks, 9th Dist. Summit No. 25294, 2010-

Ohio-6130, at ¶ 10 (rejecting the argument that a change in age coupled with a

desire to live with a different parent, absent any other factors bearing on the

circumstances of the child or the child’s residential parent, constitutes a per se

change in circumstances). The reason for this is that “a child’s wishes are often

transitory; to allow a change in a child’s wishes automatically to serve as a change

of circumstances for purposes of R.C. 3109.04(E)(1)(a) might cause the constant

relitigation of issues which the ‘change in circumstances’ requirement is designed

to avoid.” Butland v. Butland, 10th Dist. Franklin No. 95APF09-1151 (June 27,

1996). This is all the more applicable in the present case, where Kali’s age,

complete mobility, and good relationship with both parents could readily enable

her to change her living circumstances between the two parents at any time.

       {¶19} Moreover, even though 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.” See e.g., Haskett v. Haskett, 11th Dist. Lake No.

2011–L–155, 2013-Ohio-145, ¶ 35, citing Wyss v. Wyss, 3 Ohio App.3d 412 (10th


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Dist.1982).   To this end, the change in circumstances necessary to justify a

modification of a prior decree “must be a change of substance, not a slight or

inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).

Here, the record does not demonstrate nor does the trial court indicate that a

change of substance occurred with respect to Kali’s circumstances which had a

material and adverse effect on her. To the contrary, the evidence at the hearing

suggests that Kali continued to perform well academically and maintained good

relationships with both her parents after she decided in the summer of 2014 to live

full-time in Stephanie’s home.

       {¶20} Arguably, the only indication of any change of substance or any

situation having a material and adverse effect, which was not relied upon by the

trial court, was the change in Michael’s and Stephanie’s finances. The evidence at

the hearing showed that Michael had changed jobs since the prior parenting decree

and now earned significantly less than he did before and no longer obtained

private health insurance through his employment. For her part, Stephanie claimed

to have suffered a financial hardship since Kali decided to regularly live with her.

However, we note that there was a lack of evidence at the hearing sufficiently

quantifying the increased financial need Stephanie experienced as a result of

Kali’s decision to change her living arrangements and, notably, less than two

months had transpired between the time Kali decided to change her living


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arrangements and Stephanie’s filing of her motion to modify the prior custody

order. Nevertheless, while the record may suggest that both parents suffered

financial obstacles since the prior custody decree, the evidence simply does not

support that Kali had been negatively impacted by this “change” in anyway, which

is the clearly the pertinent inquiry under the statute.

       {¶21} The record also fails to support that the trial court’s “change in

circumstances” finding satisfied the second element of the statute which requires

the “change” to be based upon facts that have arisen or that were unknown to the

court at the time of the prior decree. The Supreme Court of Ohio has expressed

that “[t]his is a high standard, as a ‘change’ must have occurred in the life of the

child or the parent before the court will consider whether the current designation

of residential parent and legal custodian should be altered.” Fisher v. Hasenjager,

116 Ohio St. 3d 53, 59-60, 2007-Ohio-5589, ¶ 33.

       {¶22} Here, the parties’ prior shared parenting plan contemplated the two

events which formed the basis for the trial court’s conclusion that a “change in

circumstances” had occurred. First, the parties’ prior custody decree specified that

“[f]irst and foremost the children’s living arrangements shall be as the parties can

agree.” The decree then explicitly provided for the custody arrangements “[i]n the

event the parties cannot agree.” (Doc. No. 76 at 2). Second, the prior custody

decree stated that “Mother and Father agree to give deference to the needs and


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desires of the children as it pertains to the exercise of parenting time.” (Id.) Thus,

the parties’ prior custody decree clearly anticipated the circumstances identified by

the trial court as its “change in circumstances” finding—i.e., Kali’s decision to

live with one parent over the other—and incorporated the appropriate flexibility

into the exercise of parenting time to prevent future litigation if the situation arose.

We also note that only two years had passed since the trial court issued the prior

decree when Stephanie filed her motion for modification. Thus, the parties were

not so far removed from the previous order to suggest that the intent to address the

specific circumstances foreseen in that order had somehow been affected by the

passage of time.

       {¶23} In sum, R.C. 3109.04(E)(1)(a) precludes a trial court from modifying

a prior custody decree unless it finds that a change based upon facts that have

arisen or that were unknown to the trial court since the time the court entered the

prior decree has occurred in the circumstances of the child or the parents subject to

a shared parenting decree. We conclude that the record in this case simply does

not support the trial court’s determination that a change in circumstances had

occurred based solely upon the child’s desire to live with one parent over the

other, especially when such an event was specifically contemplated by the prior

shared parenting plan, and absent any other evidence that there was a change of

substance which had a material and adverse effect on the child.


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       {¶24} Accordingly, we find that the trial court erred in finding that a

 change in circumstances within the meaning of the statute had occurred in this

 case sufficient to warrant the modification of the parties’ prior custody decree.

 Therefore we sustain the assignment of error and the judgment of the trial court is

 reversed and the cause remanded for further proceedings consistent with this

 opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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