[Cite as Sejka v. Sejka, 195 Ohio App.3d 335, 2011-Ohio-4711.]




STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )



SEJKA,                                                    C.A. No.   10CA0133-M

        Appellee,

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
SEJKA,                                                    COURT OF COMMON PLEAS
                                                          COUNTY OF MEDINA, OHIO
        Appellant.                                        CASE No.   06 DR 0097


                                DECISION AND JOURNAL ENTRY

        Steve C. Bailey, for appellee.

        Dean S. Hoover, for appellant.


        Dated: September 19, 2011



        WHITMORE, Judge.

        {¶ 1} Defendant-appellant, Michael Sejka (“Father”), appeals from the judgment of the

Medina County Court of Common Pleas, Domestic Relations Division, modifying the parental

rights and responsibilities established between him and plaintiff-appellee, Cynthia Sejka

(“Mother”). This court reverses.

                                                      I

        {¶ 2} Mother and Father married in August 1996 and had a daughter together in February

2002. In February 2006, Mother filed for divorce, and Father filed a counterclaim for the same.

The parties reached a resolution on matters pertaining to the division of marital property and
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parenting terms for their daughter, all of which were set forth in a settlement agreement that was

incorporated by reference into the terms of their divorce decree. Under those terms, the parties

had agreed that Mother was the residential parent and legal custodian of their daughter and

Father was responsible for the payment of child and spousal support.         Father agreed to a

companionship schedule that resulted in nearly equal parenting time, as they established a

“week-on, week-off” arrangement, with a mid-week visitation by the parent not in possession of

their daughter. They further agreed at the time that “[a]ll major decisions involving [their child

would] be discussed and decided jointly.”

       {¶ 3} Though the parties were divorced in April 2007 pursuant to the foregoing

agreement, they continued to engage in what the court termed a pattern of “high conflict between

themselves,” focused largely around how the parents would share parental rights and

responsibilities for their only daughter.     Over time, both parties filed multiple motions

challenging the initial terms of their divorce decree. These challenges ultimately culminated in a

five-day trial in August 2009, centered on issues of child support, spousal support, parenting

time, and the decision-making abilities of each parent with respect to their daughter’s care and

education. On November 23, 2009, the trial court entered judgment on the foregoing issues, thus

resolving all ten of the parties’ outstanding motions. In doing so, it noted that the parties had

stipulated that the companionship schedule would remain essentially the same, but that they had

agreed to specific and detailed terms surrounding decision-making responsibilities related to

schooling and medical care; vacation and holiday arrangements; transportation terms; and the

time and means of communication with their daughter, as well as with one another.

       {¶ 4} Just over two months later, on January 26, 2010, Mother filed a “Motion to

Terminate Shared Parenting Plan.” In her motion, she alleged that recent email communications
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from Father had “made it impossible for [Mother] to co-parent with [Father].” In September

2010, the trial court held a hearing on the matter at which Mother and the child’s psychologist

testified.

        {¶ 5} On November 22, 2010, the trial court modified the terms of the parties’ decree,

specifically concluding that Mother was deemed “the sole residential and custodial parent” of

their child and awarding her “sole and complete authority in determining all matters pertaining to

the child’s health, education, religious training, extra-curricular activities, and all other matters in

which a parent’s decision or authority is required.” The court further held that Father “is

enjoined from interfering in any manner whatsoever with [Mother’s] authority herein” and

cautioned that “further interference with the parenting of the parties’ daughter may result in

diminution of [Father’s] parenting time.”

        {¶ 6} Father has timely appealed from the trial court’s order, asserting three assignments

of error for our review.

                                                   II

                                 Assignment of Error Number One

                The trial court abused it (sic) discretion by terminating a shared parenting
         decree when there was no showing of a “change of circumstances,” no showing
         that the proposed change of custody was “necessary to serve the best interest of
         the child,” and no showing that the “harm likely to be caused by a change of
         environment is outweighed by the advantages of the change of environment to
         the child.”

        {¶ 7} In his first assignment of error, Father argues that the trial court abused its

discretion because there was an absence of any evidence to support its decision. Specifically, he

asserts that the trial court erred when it failed to make the requisite finding that there was a

change in circumstances and, further, that there was no evidence demonstrating that a change in

circumstances had occurred since the parties’ decree was issued. He also asserts that there was a
                                                  4


lack of evidence demonstrating that it was in their daughter’s best interest to modify the existing

shared-parenting plan or that the harm by any change to the parenting plan would be outweighed

by the advantages that change would have on their daughter. Additionally, he asserts that the

trial court relied on matters not even in evidence, in that it found that his testimony “lack[ed]

credibility” when, in fact, he had not testified. We agree.

       {¶ 8} Initially, we note that though Mother captioned her motion as a “Motion to

Terminate Shared Parenting Plan” and Father, too, challenges the changes to their shared-

parenting plan, the record reveals that the parties did not, in fact, ever enter into such a plan.

Instead, the record reveals that Mother was named the custodial and residential parent in the

parties’ initial decree, while Father was awarded companionship time, though they agreed to

allocate that time on a nearly equal basis. Though Mother and Father agreed between themselves

to split parenting time on a 50-50 basis, such an agreement does not translate into a shared-

parenting plan under the law. See Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, at

¶ 22-25 (contrasting the situation where one parent is named the residential parent and legal

custodian with circumstances where shared parenting is ordered and the decree either names both

parents as the residential parent and legal custodian or is silent on that issue). See also id. at ¶ 55

(Pfeifer, J., dissenting) (dissenting on other grounds, but noting that pursuant to R.C.

3109.04(A)(1), “[t]he designation of one parent as the residential parent and legal custodian

occurs only in cases where shared parenting is rejected”).           Rather, the parties’ separation

agreement set forth how they had agreed to allocate their parental rights and responsibilities, and

notably, provided that “[a]ll major decisions involving [their child would] be discussed and

decided jointly.” The designation of Mother as custodial parent remained intact following the

parties’ August 2009 trial on issues related to their parental rights and responsibilities, child
                                                 5


support, and spousal support. Because the issue of schooling was one of the contested matters at

the time, the trial court specifically reiterated that Mother was the residential parent for purposes

of schooling in its November 2009 order as well. Thus, it is clear that when Mother filed her

“Motion to Terminate Shared Parenting Plan,” there was not a shared-parenting plan in place.

More importantly, it is clear that since the parties’ divorce decree was entered, Mother has been

the sole custodial and residential parent over the parties’ daughter. It is further apparent from the

content of Mother’s motion that she sought only to modify the allocation of parental rights,

namely the requirement that she consult with Father on parenting decisions related to their

daughter, not her designation as the residential and custodial parent.

       {¶ 9} In light of the foregoing clarifications, we next consider the trial court’s decision in

this matter.   Trial courts have broad discretion in their allocation of parental rights and

responsibilities. Graves v. Graves, 9th Dist. No. 3242-M, 2002-Ohio-3740, at ¶ 31, citing Miller

v. Miller (1988), 37 Ohio St.3d 71, 74. Accordingly, this court will not overturn a trial court’s

decision in such matters unless we conclude that the trial court abused its discretion. An abuse

of discretion implies that “ ‘the court’s attitude is unreasonable, arbitrary or unconscionable.’ ”

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980, 62 Ohio

St.2d 151, 157. A trial court abuses its discretion if its factual findings are not supported by

competent, credible evidence. Maxwell v. Maxwell, 9th Dist. No. 07CA0047, 2008-Ohio-1324,

at ¶ 6. A trial court errs as a matter of law, however, when it misapplies a statute. Bentley v.

Rojas, 9th Dist. No. 10CA009776, 2010-Ohio-6243, at ¶13.

       {¶ 10} Pursuant to R.C. 3109.04(E)(1)(a), a trial court cannot modify an existing

allocation of parenting rights and responsibilities “[U]nless 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,
                                                 6


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.” Also, “ ‘before a modification can be made pursuant to

R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in

circumstances has occurred.’ ” Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009-Ohio-6909,

at ¶ 11, quoting Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶ 9,

citing Fisher 116 Ohio St.3d 53, 2007-Ohio-5589, at syllabus. The Ohio Supreme Court has

held that the requisite change of circumstances “must be a change of substance, not a slight or

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

       {¶ 11} As stated above, there is not a shared-parenting plan, and hence, no shared-

parenting decree, involved in this case. Thus, the change in circumstance required by statute in

order to modify the parties’ allocation of parental rights must necessarily relate to a change in the

circumstances of the child or of Mother, as she is the child’s residential parent. See R.C.

3109.04(E)(1)(a).    At the hearing, Mother and the child’s treating psychologist testified.

Additionally, Mother and Father both introduced e-mail communications exchanged between

them at various points between the trial court’s November 2009 journal entry and the filing of

Mother’s motion in January 2010.

       {¶ 12} Based on this evidence, the trial court found that “[t]he parties have an extensive

history of high conflict” and that since the most recent hearing just two months prior to the filing

of Mother’s motion, they “have continued their pattern of behavior resulting in nasty conflict.”

The court went on to note that the conflict between the parties “[was] having a deleterious effect

upon the child.” The trial court pointed to e-mail communications admitted at the hearing in

which Father was “verbally abusive and cruel” to Mother and concluded that “co-parenting
                                                 7


between the parties [is] untenable.” The court further concluded, based on the testimony of the

child’s psychologist, that the child is “too aware of the parents’ continuing conflict and that the

conflict is detrimental to the child.” The trial court did not, however, ever conclude that any of

the testimony or exhibits adduced at the hearing, demonstrating the continuing discord between

the parties, constituted a change in the circumstances of the child or Mother, the child’s

residential parent. See id. See also Buttolph, 2009-Ohio-6909, at ¶ 12 (reversing the trial court’s

decision to modify a shared-parenting plan where “neither the magistrate nor the trial judge made

the requisite finding in either entry that there was a change of circumstances”).

       {¶ 13} To the extent that the trial court’s conclusion that the parties’ continued

hostility toward one another was having a “deleterious effect” on their child could be

considered a finding that there had been a change in the circumstances of the child, the

evidence adduced at the hearing does not support that conclusion. Instead, the child’s

treating psychologist agreed with Father that he has improved in his willingness to work

with Mother on parenting issues and that his e-mail communications with Mother are

“[g]enerally * * * appropriate.” She further noted that the messages from Father that

were “[o]ccasionally * * * more inflammatory” have decreased over time and that

“eventually it appears that [Mother and Father] do get to a solution with each other.” The

psychologist testified that the child is “aware that there[ is] a level of tension between her

parents, but * * * that she is, in general, less preoccupied with it.” The psychologist

concluded, “In general, there have not been any major conflicts between [the child’s]

parents that have had an impact on [the child’s] emotional status” and that her condition

since November 2009 “has improved.” To the extent that the trial court relied upon the
                                                8


psychologist’s testimony to conclude that the child was “too aware of the parents’

continuing conflict,” the transcript reveals that the psychologist made such a statement,

but when further questioned on that point, stated she was “[n]ot particularly” aware of

who provides the child with such information.

       {¶ 14} The record is devoid of any testimony that Mother has experienced a change in

circumstances sufficient to warrant a modification to the parties’ allocation of parental rights.

The bulk of Mother’s testimony surrounded her difficulties in working with Father around

vacation times and medical appointments. Her testimony centered little on what, if any, change

in circumstances, had occurred with either her or the child in the two months since the parties

had last modified their allocation of parental rights. Instead, Mother’s testimony supports a

finding quite the opposite of the statutory requirement of R.C. 3109.04(E)(1)(a) – that the

circumstances of the parties have remained disharmonious.

       {¶ 15} While this court neither condones nor endorses the manner in which Father has

conducted himself with Mother in the course of their e-mail communications, we cannot

conclude based on the evidence contained in the record that there has been a substantial change

in the circumstances of the child or Mother since the court last addressed this issue in November

2009. Davis, 77 Ohio St.3d at 418. The framework of R.C. 3109.04 is designed to prevent

precisely what Mother is attempting to accomplish through her motion, as the statute requires

that a party demonstrate that there has been a significant change in circumstances in order to

modify the allocation of parental rights set forth under the terms of a decree. Fisher, 116 Ohio

St.3d 53, 2007-Ohio-5589, at ¶ 32-34. See also Davis, 77 Ohio St.3d at 418.

       {¶ 16} To the extent that the trial court failed to make the requisite finding that there was

a change in circumstances pursuant to R.C. 3109.04, it erred as a matter of law in proceeding to
                                                 9


modify the parties’ allocation of parental rights. To the extent that the trial court intended its

finding related to the daughter to demonstrate a change in circumstances, the trial court abused

its discretion in doing so, as that finding is not supported by the evidence adduced at trial.

Accordingly, Father’s first assignment of error is sustained.

                                         Assignment of Error Number Two

               The trial court erred as a matter of law and violated father’s fundamental
       constitutional parental right to educate the parties’ child in father’s religious
       values by granting mother ‘complete authority’ to determine the child’s “religious
       training.”

                                       Assignment of Error Number Three

               The trial court erred as a matter of law and violated father’s fundamental
       constitutional parental right to visitation with the parties’ child by entering its
       order that father may be subjected to a “diminution of his parenting time” as a
       penalty for father’s “interference with the parenting time of the parties’ daughter.”

       {¶ 17} In light of our disposition of Father’s first assignment of error, we decline to

address his second and third assignments of error, as they are moot. App.R. (12)(A)(1)(c).

                                                III

       {¶ 18} Father’s first assignment of error is sustained. His remaining assignments of error

are moot. The judgment of the Medina County Court of Common Pleas, Domestic Relations

Division, is reversed, and the cause is remanded for further proceedings consistent with this

opinion.

                                                                                Judgment reversed

                                                                              and cause remanded.




CARR, P.J., and DICKINSON, J., concur.
                                                 10


       DICKINSON, J., concurring.

       {¶ 19} I concur in the majority’s judgment and most of its opinion. I do not, however,

concur in the statement in paragraph 16 that “[t]o the extent that the trial court intended its

finding related to the daughter to demonstrate a change in circumstances, the trial court abused

its discretion in doing so, as that finding is not supported by the evidence adduced at trial.” This

court reviews whether a finding is supported by sufficient evidence de novo. See, e.g., State v.

Mima, 9th Dist. No. 25540, 2011-Ohio-3798, at ¶ 11.            If it is not supported by sufficient

evidence, it must be reversed. A trial court does not have discretion to make a finding that is not

supported by sufficient evidence, and to say that the trial court abused its discretion in doing so is

to confuse two very different standards of review.
