       [Cite as N.E. v. J.E., 2017-Ohio-6917.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                     WOOD COUNTY


N.E.                                                  Court of Appeals No. WD-17-002

       Appellant                                      Trial Court No. 2011JH0392

v.

J.E.                                                  DECISION AND JUDGMENT

       Appellee                                       Decided: July 21, 2017

                                                 *****

       James A. Hammer, for appellant.

       Richard H. Wallace and Aaron D. Lowe, for appellee.


                                                  *****

       JENSEN, P.J.

                                            I. Introduction

       {¶ 1} Appellant, N.E. (“father”), appeals the judgment of the Wood County Court

of Common Pleas, Juvenile Division, denying his motion to modify parental rights and

responsibilities, thereby preserving appellee’s, J.E. (“mother”), status as residential
parent, and reducing father’s visitation time with the parties’ daughter, A.E., from an

alternating week schedule to one weekend every other week during the school year.

                          A. Facts and Procedural Background

       {¶ 2} On May 16, 2011, the trial court issued an order in which it designated

mother as A.E.’s residential parent. A.E. was approximately five months old at the time

of the court’s order. Two years later, mother filed a motion with the trial court, asking

the court to grant her custody and to allocate parental rights and responsibilities. The

motion came before a magistrate, who issued his decision on January 30, 2014.

       {¶ 3} In his decision, the magistrate determined that the motion for custody was

moot because mother was already designated as the residential parent. Further, the

magistrate granted father visitation with A.E. “pursuant to the alternating week parenting

schedule the parties [had] been utilizing since December 2012.”1 The magistrate went on

to indicate that the foregoing visitation schedule would continue until A.E. began

compulsory school attendance. On February 12, 2014, father filed timely objections to

the magistrate’s decision, which were supplemented on May 8, 2014. In his objections,

father took issue with, inter alia, the magistrate’s refusal to allow father to submit a

shared parenting plan consistent with the recommendations of the guardian ad litem.

       {¶ 4} Upon consideration of father’s objections, the trial court issued its decision

on June 9, 2014, in which it found no merit to father’s objection concerning the



       1
       Father resides in Wood County. Mother resides in Port Jefferson, Ohio,
approximately two hours south of Wood County.

       2.
magistrate’s refusal to allow father to submit a shared parenting plan. As such, the trial

court adopted the magistrate’s decision with respect to father’s alternating week visitation

rights and mother’s status as residential parent. The court also stated: “Once compulsory

school attendance age is reached, if the parties are unable to reach an agreement as to

time sharing, they may file the appropriate pleadings with the Court for determination.”

       {¶ 5} The foregoing visitation schedule remained in place for the duration of these

proceedings. However, on April 11, 2016, father filed a “motion to modify and to

determine school district and other parental rights and responsibilities,” in which he

asked the court to determine which school district A.E. should attend during the 2016-

2017 school year. Additionally, father requested that the court “make such other orders

as may be found to be proper and in the best interests of the minor child.” Father

subsequently filed an amended motion, seeking to be designated A.E.’s residential parent

and legal custodian for school purposes.

       {¶ 6} In her memorandum in opposition to father’s motion, mother argued that

A.E. should attend the Christian Academy of Sidney, which was within the same district

as A.E.’s preschool.2 Further, mother asserted that father could not demonstrate that a

change of circumstances had occurred that would warrant a modification of the court’s

previous orders.




       2
         Notably, the magistrate found that A.E. attended preschool at the Sidney-Shelby
County YMCA during the weeks spent with mother, but attended Jack & Jill Child Care
for preschool during the weeks spent with father.

       3.
       {¶ 7} A hearing on father’s motion took place on July 20, 2016. At the hearing,

father and mother both testified, as did others on behalf of each parent. Additionally, the

court conducted an in-camera interview of A.E. According to the transcript, A.E. was

extremely apprehensive during the interview. However, when asked which school she

preferred to attend, A.E. indicated that “[d]addy’s school” (Bowling Green Christian

Academy) was her favorite. When pressed further as to why she preferred Bowling

Green Christian Academy over the Christian Academy of Sidney, A.E. remained silent.

       {¶ 8} Following the hearing and in-camera interview, the magistrate issued his

decision on father’s motion on August 2, 2016. In his decision, the magistrate found that

father and mother are “great parents.” The magistrate further noted that the parties

conceded that A.E. would receive a quality education regardless of which school she

attended. In that vein, the guardian ad litem reported that the schools that the parties

selected were “essentially identical to each other” and that A.E. would do well in either

school. The guardian ad litem also found that both parents were involved in A.E.’s life

and took an active role in her development and education. Thus, the guardian ad litem

concluded that A.E.’s best interests would be served at either school, provided that the

court retain an alternating week visitation schedule between the parents during the

summer.

       {¶ 9} Upon consideration of the evidence presented at the hearing, the magistrate

concluded that A.E.’s impending school attendance and its impact on the manner in

which she spends time with her parents constituted a change of circumstances sufficient



       4.
to justify a modification of the prior decree allocating parental rights and responsibilities.

The magistrate went on to weigh the best interest factors under R.C. 3109.04(F)(1), and

found that attendance at Bowling Green Christian Academy under father’s care would be

in A.E.’s best interest. Consequently, the magistrate granted father’s motion, thereby

designating father as the residential parent, and awarded visitation to mother every other

weekend during the school year and on an alternating week basis during the summer.

       {¶ 10} Thereafter, mother filed timely objections to the magistrate’s decision. In

her memorandum in support of the objections, mother asserted that the magistrate erred

in relying upon the statements made by A.E. during the in-camera interview as support

for his decision. Mother also argued that the magistrate failed to comply with R.C.

3109.04(E)(1)(a)(iii) when he designated father as A.E.’s residential parent.

       {¶ 11} Upon receipt of father’s response to mother’s objections, the trial court

issued its decision on January 3, 2017. In its decision, the court noted that the magistrate

“gave significant – if not determinative weight to – [A.E.’s] stated wishes as to her school

of choice.” The court found that it was proper for the magistrate to conduct the in-

camera interview of A.E. However, the court noted that A.E. was “clearly emotional and

at times distraught during the interview.” The court went on to describe A.E.’s condition

as “tenuous and weak.” Given A.E.’s condition, the court concluded that the magistrate

should not have relied so heavily on A.E.’s statements. Rather, the court viewed A.E.’s

stated wish to attend school in Bowling Green as a “non-controlling factor in this matter.”




       5.
       {¶ 12} As to mother’s contention that the magistrate failed to comply with R.C.

3109.04(E)(1)(a)(iii) when he designated father as A.E.’s residential parent, the trial court

found that the magistrate properly concluded that a change of circumstances had taken

place. However, the court found that father failed to establish, and the magistrate failed

to find, that the harm likely to be caused by a change in A.E.’s environment was

outweighed by the advantages of the change of environment. According to the court, the

evidence in this case depicts a “nearly even scenario” between father and mother. In so

finding, the court noted that the proposed schools were equivalent, as is A.E.’s interaction

with father and mother and their respective relatives. Further, the court noted the

guardian ad litem’s position that A.E.’s best interest would be served if either parent was

designated as the residential parent. Given this evidence, the court found that any

differences between mother and father were “relatively minor” and did not support a

change in the prior residential parent designation under R.C. 3109.04(E)(1)(a). Thus, the

court concluded that mother should remain the residential parent, thereby denying

father’s motion. Additionally, the court adopted the guardian ad litem’s visitation

recommendations and reduced father’s visitation time to every other weekend during the

school year. The court maintained the preexisting alternating week schedule during the

summer when A.E. was not enrolled in school.

       {¶ 13} Following the trial court’s decision, father filed his timely notice of appeal.

On January 24, 2017, this appeal was placed on the accelerated calendar.




       6.
                                  B. Assignments of Error

         {¶ 14} Father has timely appealed the trial court’s decision, assigning the

following errors for our review:

                Assignment of Error No. 1: The Trial Court erred in assigning

         reduced weight to the results on an in-camera interview conducted by the

         Magistrate.

                Assignment of Error No. 2: The Trial Court erred in its analysis of

         O.R.C. Section 3109.04(E)(1)(a) and in recognizing a presumption in favor

         of Appellee/Mother under the particular facts and circumstances of the

         instant case.

                Assignment of Error No. 3: The Trial Court erred in failing to adopt

         the Magistrate’s Decision which named Appellant as residential parent of

         the minor child for school purposes.

         {¶ 15} For ease of discussion, we will address father’s assignments of error out of

order.

                                         II. Analysis

         {¶ 16} In domestic relations matters, a “trial court must have discretion to do what

is equitable under the facts and circumstances of each case.” Booth v. Booth, 44 Ohio

St.3d 142, 144, 541 N.E.2d 1028 (1989). A trial court’s judgment on custody is subject

to review on appeal under an abuse of discretion standard. Miller v. Miller, 37 Ohio

St.3d 71, 74, 523 N.E.2d 846 (1988).



         7.
       {¶ 17} As noted by the trial court, child custody matters such as the one at issue

here are to be guided by the terms of R.C. 3109.04. Id. at 74-75. R.C. 3109.04(E)(1)

provides, in relevant part:

              (a) 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.

       {¶ 18} Before analyzing whether a modification to the allocation of parental rights

and responsibilities is in the child’s best interest, the court must first determine whether a

change in circumstances has occurred. Perz v. Perz, 85 Ohio App.3d 374, 376, 619

N.E.2d 1094 (6th Dist.1993). “The clear intent of [this requirement] is to spare children

from a constant tug of war between their parents who would file a motion for change of



       8.
custody each time the parent out of custody thought he or she could provide the children

a ‘better’ environment.” Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th

Dist.1982).

          {¶ 19} Here, the trial court found that A.E.’s entrance into school constituted a

change of circumstances sufficient to satisfy R.C. 3109.04(E)(1)(a). Father does not

contest this finding. The trial court further found that father failed to demonstrate that the

harm likely to be caused by a change in A.E.’s environment was outweighed by the

advantages of the change of environment under R.C. 3109.04(E)(1)(a)(iii).3 Based upon

that finding, the trial court maintained mother’s status as the residential parent, the

designation of which was previously set forth in its June 9, 2014 decree allocating

parental rights and responsibilities.

          {¶ 20} In his second assignment of error, father challenges the trial court’s

application of R.C. 3109.04(E)(1)(a)(iii). Specifically, father contends that mother was

not actually A.E.’s residential parent because A.E. spent just as much time with him as he

did with mother under the preexisting alternating week visitation schedule. We reject this

argument in light of the trial court’s express designation of mother as the residential

parent.

          {¶ 21} Further, father argues that the trial court’s June 9, 2014 designation was

defective insofar as it limited mother’s legal control and authority by stating that “once



          3
         The parties acknowledge that R.C. 3109.04(E)(1)(a)(i) and (ii) are inapplicable in
this case.

          9.
compulsory school attendance age is reached, if the parties are unable to reach an

agreement as to time sharing, they may file the appropriate pleadings with the Court for

determination.” We find no merit to father’s contention that this language limited

mother’s legal authority. Rather, we interpret the court’s order to state the obvious:

namely, that mother and father were encouraged to amicably resolve differences

concerning visitation time, but were free to seek the court’s intervention in an attempt to

resolve any such disputes that might arise upon A.E.’s enrollment in school.

       {¶ 22} Because mother was expressly designated the residential parent in the trial

court’s prior decree, we find that the court properly retained mother’s status as the

residential parent as required under R.C. 3109.04(E)(1)(a)(iii). Accordingly, father’s

second assignment of error is not well-taken.

       {¶ 23} In his first assignment of error, father argues that the trial court erred in

assigning reduced weight to the results of the magistrate’s in-camera interview of A.E.

       {¶ 24} In its decision rejecting the magistrate’s recommendations and denying

father’s motion, the trial court found that A.E. was emotional and distraught during the

in-camera interview. Consequently, the court concluded that A.E.’s statements were

unreliable and were not controlling in this case.

       {¶ 25} Notably, appellant acknowledges that A.E., who was only five years old at

the time of the interview, was “not very verbal” during the interview. However, he

contends that A.E.’s non-verbal actions supported her statement that she preferred to

attend Bowling Green Christian Academy. Of course, such non-verbal cues are not



       10.
contained in the transcript and therefore impossible for us to review on appeal.

Moreover, A.E. was not able to express why she preferred Bowling Green Christian

Academy over the Christian Academy of Sidney. Given A.E.’s age, her apparent

apprehension during the interview, and her lack of explanation as to why she preferred

one school over the other, we cannot say that the trial court abused its discretion in

discounting the weight given to A.E.’s statements.

       {¶ 26} Accordingly, father’s first assignment of error is not well-taken.

       {¶ 27} In his third assignment of error, father advances two arguments. First, he

argues that the trial court was without authority to reduce his visitation time in favor of

mother where mother had not filed a motion seeking such relief.

       {¶ 28} Regarding a trial court’s authority to sua sponte modify parental visitation,

“Ohio courts have held that where an issue related to minor children is before the trial

court, even if not in the form of a motion to modify visitation or custody, the trial court is

bound by statute to consider the best interests of the children before making any

determination.” Morrow v. Becker, 9th Dist. Medina No. 07CA0054-M, 2008-Ohio-155,

¶ 9, citing Braden v. Braden, 5th Dist. Portage No. 2006-P-0028, 2006-Ohio-6878, ¶ 13

(finding that the trial court’s sua sponte modification of father’s visitation did not

constitute an abuse of discretion where father’s motion for custody and to show cause

was before the court); Bouffard v. Bouffard, 7th Dist. Mahoning Nos. 00-CA-59 and 00-

CA-44, 2001 Ohio App. LEXIS 690, *2 (Feb. 14, 2001) (holding that father’s contempt




       11.
motion and mother’s motion to modify visitation permitted the trial court to sua sponte

modify custody in accordance with the best interests of the child).

       {¶ 29} In light of the foregoing, we hold that the trial court did not err in

exercising jurisdiction over the visitation issue, which was properly before the court as a

result of father’s filing of his “motion to modify and to determine school district and

other parental rights and responsibilities.” Indeed, upon the filing of such a motion, and

without regard to which party files it, the trial court is statutorily required to render a

decision that is in accord with the best interest of the child, even if that decision results in

the granting of relief to the nonmoving party. See Becker at ¶ 9 (concluding that “the trial

court is required to consider the best interests of the children whenever an issue related to

the children is before the court”).

       {¶ 30} Second, father argues that the trial court abused its discretion by

mischaracterizing the amount of evidence he offered in support of his motion seeking

modification. According to father, he presented “abundant” and “multifaceted” evidence

“confirming his very deep and loving relationship with [A.E.],” while mother only

presented the testimony of herself and her husband, S.E.

       {¶ 31} Having reviewed the evidence in its entirety, we find that the trial court’s

characterization of the evidence was not an abuse of discretion. While it is true that

father presented the testimony of four individuals and mother only presented the

testimony of herself and S.E., the quantity of evidence presented is not the issue here.

Rather, the question before the trial court centered on the best interests of the child under



       12.
R.C. 3109.04(E) and (F).4 In that regard, the evidence presented at the hearing depicts

mother and father as excellent parents who are both bonded with A.E. Further, the

schools proposed by each parent are equivalent in terms of the quality and nature of the

education A.E. is likely to receive. Moreover, the guardian ad litem’s report, which

recommends either parent be designated the residential parent, supports the trial court’s

finding that the evidence in this case depicts a “nearly even scenario” between father and

mother. We agree with the trial court that any differences between father and mother that

are borne out by the evidence are inconsequential, and that the best interest factors

contained in R.C. 3109.04(F) are not slanted in father’s favor. Moreover, we find that the

trial court properly concluded that modification of father’s visitation schedule was in

A.E.’s best interest in light of the practical reality that A.E. would be unable to attend

school from father’s home during the week because the school was two hours away.

       {¶ 32} Accordingly, father’s third assignment of error is not well-taken.




       4
         Father contends that the trial court erred in failing to make the required findings
under R.C. 3109.051(D), which sets forth the best interest factors to be considered by the
trial court when determining whether to grant parenting time to a parent pursuant to R.C.
3109.051 or 3109.12. Father’s argument is misplaced, however, as the trial court
specifically stated in its entry that it considered the best interest factors under R.C.
3109.051(D) and 3109.04(E). Furthermore, father’s motion sought a modification of
parental rights and responsibilities under R.C. 3109.04(E), which requires the trial court
to consider the best interest factors contained in R.C. 3109.04(F).

       13.
                                     III. Conclusion

       {¶ 33} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas, Juvenile Division, is affirmed. Father is ordered to pay the costs of this

appeal pursuant to App.R. 24.

                                                                      Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




       14.
