[Cite as Thompson v. Thompson, 2019-Ohio-274.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


 MELISSA THOMPSON                                :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                      :   Hon. Patricia A. Delaney, J.
                                                 :   Hon. Earle E. Wise, Jr., J.
 -vs-                                            :
                                                 :   Case No. 2018CA00074
                                                 :
 ERIC THOMPSON                                   :
                                                 :
                                                 :
        Defendant-Appellee                       :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Domestic Relations
                                                     Division Case No. 2009 DR 736



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              January 22, 2019




APPEARANCES:

 For Plaintiff-Appellant:                            For Defendant-Appellee:

 SUSAN J. LAX                                        GREGORY J. RUFO
 755 White Pond Dr., Suite 403                       600 Chase Tower
 Akron, OH 44320                                     101 Central Plaza S.
                                                     Canton, OH 44702
Stark County, Case No. 2018CA00074                                                    2

Delaney, J.

         {¶1} Plaintiff-appellant Melissa Thompson (“Mother”) appeals from the May 21,

2018 Judgment Entry of the Stark County Court of Common Pleas, Domestic Relations

Division. Defendant-appellee is Eric Thompson (“Father”).

                         FACTS AND PROCEDURAL HISTORY

         {¶2} Mother and Father were divorced in 2010; they have two children, D.T. and

G.T. D.T. is now emancipated and does not play a role in the instant proceedings. G.T.

is a minor. Pursuant to the separation agreement of 2010, Mother was named residential

parent and legal custodian for the children, with Father to receive reasonable

companionship by mutual agreement.

         {¶3} In February 2017, Mother filed a contempt action against Father asserting

nonpayment of medical expenses. This motion was later withdrawn.

         {¶4} On March 13, 2017, Father filed a motion to reallocate parental rights and

responsibilities, asserting G.T. wanted to live with Father.1 G.T. was born in December

2002 and was age 14 when the motion was filed. Father also averred that Mother had

numerous jobs; had moved the children four times in two different school districts; had

exposed the children to “numerous” paramours; had limited involvement in the children’s

extracurricular activities; exposed the children to a “mean” step-grandparent; has had

domestic disputes with the children; and does not have food available in the home.

         {¶5} A guardian ad litem (G.A.L.) was appointed on April 4, 2017. She submitted

reports dated June 15, 2017; August 21, 2017; December 8, 2017; and March 22, 2018.

Relevant here, the G.A.L.’s reports state G.T. said he wanted to live with Father.



1   D.T. was emancipated as of May 2017.
Stark County, Case No. 2018CA00074                                                       3


        {¶6} On August 28, 2017, the parties agreed G.T. would live with Father on an

interim basis, making Father residential parent for school purposes. This agreement was

filed on September 25, 2017. The immediate effect of the temporary orders was that G.T.

would attend Smithville schools (Father’s district) instead of Louisville schools (Mother’s

district).

        {¶7} After the move to Father’s house and the change of school district, the

G.A.L. reported that G.T. was doing well at Father’s house, making new friends, and

settling into school. The school’s intervention specialist reported to the G.A.L. that she

had no current concerns for G.T., although at one point he did have a problem turning in

assignments on time.

        {¶8} G.T.’s purported health issues are a source of dispute for Mother and

Father. Mother describes G.T. as “high-functioning autistic” requiring intervention at

school. She reports G.T. has ongoing bowel problems requiring periodic attention of

specialists. Father says Mother is unwilling to share information with him about G.T.’s

medical issues and treatment.      Father testified G.T. has not been diagnosed with

Aspergers and points out his school intervention is for writing only.

        {¶9} The matter proceeded to evidentiary hearing on April 6, 2018 and April 27,

2018. On May 21, 2018, the trial court issued a judgment entry granting Father’s motion

to reallocate parental rights and responsibilities. Father was named residential parent

and legal custodian of G.T.

        {¶10} The following evidence is adduced from the evidentiary hearing.

        {¶11} On Mother’s behalf, G.T. met several times with a counselor who described

him as high-functioning autistic. His problems are primarily with social interaction; the
Stark County, Case No. 2018CA00074                                                          4


counselor found G.T. to be “very quiet” and difficult to interact with. Counseling was

therefore limited to 9 sessions because it was not productive. G.T. had been in band at

Louisville but was not in the band at Smithville.2 G.T. plays Dungeons and Dragons,

facilitated by Mother, through which he meets other people with similar interests. The

counselor described G.T. as generally bright but immature. The counselor’s knowledge

of G.T.’s purported health issues, including asthma, allergies, and bowel issues, was

limited to those reported by Mother. The counselor opined that G.T. is capable of

expressing his own wishes regarding where he wants to live, but he can’t always make

good choices.

       {¶12} The G.A.L. testified that she spoke to G.T. twice before he moved to

Father’s and twice afterward. She reported G.T. is doing well in school at Smithville and

his grades are good, despite an issue earlier in the school year with turning in

assignments on time. She reported G.T. is happy living with Father and hopes to remain

there. The G.A.L. found G.T. to be quiet and hesitant to speak to her at first, although he

became more forthcoming as their contact continued. The G.A.L. found G.T. to be

interested in communicating about the custody dispute and fully capable of telling her his

wishes. At first G.T. said he wanted to stay with Mother but to see Father more often. In

later meetings, he unequivocally expressed that he wanted to live with Father.

       {¶13} The G.A.L. acknowledged Mother alleged Father influenced G.T.’s opinion

by paying him an unreasonable allowance, but G.T. and Father both denied this. G.T.




2 It became evident later in the hearing that G.T.’s non-participation in Smithville’s band
is not because of lack of interest on his part, or lack of follow-up by Father, but the simple
fact that G.T. missed Smithville’s summer band practices by the time he transferred and
was thus not allowed to participate.
Stark County, Case No. 2018CA00074                                                           5


said he would like to spend every other weekend with Mother because he wanted some

weekends to spend time with Father, who works midnights.

       {¶14} Ultimately the G.A.L. recommended shared parenting with Father as

residential parent for school purposes and Mother having three weekends per month,

splitting major school breaks and following Schedule A for holidays. Mid-week visits were

determined to be not feasible because of distance between Mother and Father’s

residences and G.T.’s school hours. The G.A.L. noted the parents’ communication is

poor and would have to improve for the recommendations to work. She recommended

use of the Family Wizard or similar program for communication between the parties.

       {¶15} Upon cross-examination, the G.A.L. acknowledged G.T. had issues with

getting homework done on time and had gained weight while living with Father. She

opined that G.T.’s autism or Aspergers does not prevent him from articulating where he

wants to live and does not make his opinions any less credible.3 He has ongoing medical

issues which both parents have handled appropriately. Regardless of whether Louisville

or Smithville is objectively the “better” school district, G.T. is doing well at Smithville, is

making friends, and is involved in activities such as foreign language club. She also noted

Mother has complained about G.T.’s time spent with Father’s wife (“Stepmother”), but the

G.A.L. has no concerns regarding Stepmother and G.T. has never stated he doesn’t like

her or has problems with her.4




3 At various points in the hearing, G.T.’s condition was described as autism, high-
functioning autism, and Aspergers.
4 An incident was alluded to by both sides at the hearing in which Mother reported Father

and/or Stepmother may have used marijuana to the Smithville police. The police visited
the residence but did not enter, and no further investigation was merited.
Stark County, Case No. 2018CA00074                                                        6


       {¶16} The intervention specialist from the Smithville school district testified that

G.T. does have an individualized education plan (I.E.P.) for writing only. Specifically, the

I.E.P. addresses writing goals including organization, capitalization, and editing. The

specialist saw no reason to update G.T.’s I.E.P. or to add anything to it. Although she

has not communicated with Mother regarding the I.E.P. and did not have Mother’s contact

information, there had been no need for contact because G.T. was progressing favorably.

The specialist further testified that G.T. is doing well in school, is somewhat introverted

and loves to read, and will not need any special accommodations to enable him to

someday go to college.

       {¶17} Father testified he lives in Smithville, has been married to Stepmother since

2010, and works at Timken as a heavy-equipment operator. He has worked at Timken

for 10 years, works midnights, and is a union steward. Father filed the motion to modify

custody because in 2016 G.T. asked if he could live with Father and Stepmother.

Although G.T. initiated the conversation about a change of custody, Father also noted

several concerns.     He cited Mother’s “frequent” job changes and/or periods of

unemployment; Mother moved several times, requiring G.T. to change schools; Mother’s

“numerous” paramours; problems with a “mean” maternal step-grandparent; problems

between G.T. and his older brother, who has special needs and lives with Mother; Mother

purportedly refused to pay G.T.’s band fee; and Mother failed to adequately provide lunch

money or food.

       {¶18} Father rebutted some of Mother’s allegations. Mother alluded to Father’s

mental health issues, but Father testified although he had a period of depression after the

divorce, he does not currently have mental health problems. Father denied that he gives
Stark County, Case No. 2018CA00074                                                      7


G.T. an extravagant allowance and said G.T. earns up to $30/week for doing chores

around the house. Father testified G.T. is a “normal child” and that he has not been

diagnosed with autism or Aspergers.

       {¶19} Mother has lived in Louisville for six years. She rents a home and each son

has his own room. Mother works for the Mahoning Educational Center as an early-

childhood specialist; she has worked for the same employer since 2016 but at different

locations. She earns $9.50/hour and supplements her income with side jobs such as

helping disabled adults. She acknowledged she had a brief period of unemployment in

2013; she forgot to pay a utility bill and the electricity was turned off. Mother rebutted

Father’s testimony that G.T. doesn’t get enough to eat because she receives food stamps

and free school lunches. Mother testified there is plenty of food available in the house

and at school, but G.T. wants “extras.”     Mother’s paramour lives in Virginia and is

sometimes at her house on weekends. She acknowledged her stepfather is “gruff” with

the grandchildren but is not abusive and loves G.T. G.T.’s older brother D.Y. has mental

health issues and Mother is his legal guardian. She testified the brothers have a loving

relationship.

       {¶20} Mother testified that in fact she paid half of the band fee Father complained

about. She agreed to let G.T. live at Father’s house temporarily because she was “under

pressure” and has regretted the agreement ever since. She has specific complaints about

Father as residential parent, including claims that G.T. is no longer on the honor roll,

cannot access honor-roll classes at Smithville, comes home from Father’s with significant

hygiene issues, and has gained 50 pounds in the time he has been in Father’s custody.

Furthermore, G.T.’s asthma is aggravated by the fact that Stepmother and Father smoke,
Stark County, Case No. 2018CA00074                                                       8


including in the car, around G.T. She said G.T. comes home covered in dog hair and

smelling of smoke, having not changed his clothes throughout the weekends he was with

Father.

       {¶21} Mother claimed G.T. is susceptible to manipulation and is asking to live with

Father because of the inflated allowance and promises of a car when he is 16 and

“sending him to Harvard.” Father has also failed to stay on top of G.T.’s medical issues.

Mother acknowledged she called the police to report Father and Stepmother’s alleged

marijuana use, and she subjected G.T. to a urine test to determine whether he was

affected by smoking in Father’s home.

       {¶22} Several witnesses testified on Mother’s behalf, including her mother, sister,

and boyfriend. They testified that G.T. is a loving and well-behaved child who has recently

begun to disrespect Mother.

       {¶23} On May 21, 2018, the trial court granted Father’s motion to modify the

current order as to parental rights and responsibilities, naming Father as residential

parent and legal custodian of G.T. Mother now appeals from the trial court’s order.

       {¶24} Mother raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶25} “THE TRIAL COURT’S DECISION NAMING [FATHER] AS THE

RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE MINOR CHILD WAS AN

ABUSE OF DISCRETION.”
Stark County, Case No. 2018CA00074                                                        9


                                        ANALYSIS

       {¶26} Mother asserts in her sole assignment of error that the trial court’s decision

naming Father residential parent and legal custodian of G.T. is an abuse of discretion.

We disagree.

       {¶27} Our standard of review in assessing the disposition of child custody matters

is that of abuse of discretion. DiDonato v. DiDonato, 5th Dist. Tuscarawas No. 2015 AP

07 0042, 2016-Ohio-1511, 63 N.E.3d 660, ¶ 44, citing Miller v. Miller, 37 Ohio St.3d 71,

523 N.E.2d 846 (1988). Furthermore, as an appellate court reviewing evidence in custody

matters, we do not function as fact finders; we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent,

and credible evidence upon which the fact finder could base his or her judgment. Id.,

citing Dinger v. Dinger, 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386, 2001 WL

1141268.

       {¶28} The trial court is “best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

461 N.E.2d 1273 (1984). Deferential review in a child custody determination is especially

crucial “where there may be much evidence by the parties' demeanor and attitude that

does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d

1159 (1997). We are mindful that 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, and the reviewing court should be guided by the presumption
Stark County, Case No. 2018CA00074                                                         10

that the trial court's findings were correct. See, Miller v. Miller, 37 Ohio St.3d 71, 74, 523

N.E.2d 846 (1988).

       {¶29} Three elements must exist in order for a trial court to modify a prior decree

allocating parental rights and responsibilities: (1) there must be an initial threshold

showing a change in circumstances; (2) if circumstances have changed, the modification

of custody must be in the children's best interests; and (3) any harm to the children from

a modification of the plan must be outweighed by the advantages of such modification.

R.C. 3109.04(E)(1)(a).

       {¶30} R.C. 3109.04(E)(1)(a) provides as follows:

                     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 * * * 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 * * *, 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 in

              environment is outweighed by the advantages of the change of

              environment to the child.

       {¶31} R.C. 3109.04 does not define the concept of “change in circumstances.”

However, Ohio courts have held the phrase is intended to denote “an event, occurrence,
Stark County, Case No. 2018CA00074                                                        11

or situation which has a material and adverse effect upon a child.” Wyss v. Wyss, 3 Ohio

App.3d 412, 445 N.E.2d 1153 (10th Dist.1982). A trial court “must carefully consider the

nature, circumstances, and effects of each purported change, such as growth and

improvement (excepting some mistakes along the way) should be fostered rather than

blindly chilled or penalized in the name of stability.” Murphy v. Murphy, 5th Dist.

Tuscarawas No. 2014 AP 01 0002, 2014-Ohio-4020, 2014 WL 4627809.

       {¶32} Additionally, the change of circumstances must be “one of substance, not a

slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d

1159 (1997). This prevents a constant re-litigation of the issues that have already been

determined by a trial court. Id. The change in circumstances “must be based upon some

fact that has arisen since the prior order or was unknown at the time of the prior order.”

Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453 (3rd Dist.).

Relocation alone is not sufficient to constitute a change in circumstances, but may be a

factor in such determination. Thompson v. Thompson, 5th Dist. Stark No. 2012CA00176,

2013-Ohio-2587, 2013 WL 3193541.

       {¶33} In this case, the trial court set forth several bases to support its finding a

change of circumstances: Mother has changed jobs several times; moved the children

several times; subjected the children to “at least three or four paramours;” and was

involved in domestic disputes with her older son D.T. The trial court further found that

G.T. does not enjoy a close relationship with D.T. and will suffer no ill effects from living

in a different household than his brother. Moreover, G.T. wants to live with Father and

his time living with Father has been successful in that he is doing well in school, making

new friends, and receives support from the school if he needs it. On Father’ behalf, the
Stark County, Case No. 2018CA00074                                                        12


trial court noted Father’s home environment has been more stable in terms of his

residence, long-term job, and relationship with Stepmother.            Finally, the G.A.L.

recommends Father as residential parent because he provides the consistent stability

G.T. needs.

       {¶34} Upon review, we find the trial court did not abuse its discretion in finding a

change in circumstances. As noted above, the trial court is “best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Our role is to determine whether

there is relevant, competent, and credible evidence upon which the fact finder could base

his or her judgment. Dinger v. Dinger, 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-

1386, 2001 WL 1141268. Thus, we defer to the trial court's interpretation of the evidence

as it observed first-hand witnesses and their demeanor. Wright v. Wright, 5th Dist. Stark

No. 2012CA00232, 2013-Ohio-4138, 2013 WL 5406795.

       {¶35} We find there is competent and credible evidence upon which the fact finder

could base the judgment as to a change in circumstances. The evidence supports the

trial court’s findings as noted above. While both parents are loving and want the best for

G.T., Father is better able to provide stability and structure at this point in time, and the

evidence does not support denying G.T.’s request to live with his father.

       {¶36} If a change of circumstances is established, the trial court must weigh the

best interest of the children before modifying a residential-parent designation. R.C.

3109.04(F), which sets forth the factors a trial court must consider in determining the best

interest of the child, provides:
Stark County, Case No. 2018CA00074                                                        13


                     In determining the best interest of a child pursuant to this

           section, whether on an original decree allocating parental rights and

           responsibilities for the care of children or a modification of a decree

           allocating those rights and responsibilities, the court shall consider

           all relevant factors, including, but not limited to:

                     (a) The wishes of the child's parents regarding the child's care;

                     (b) If the court has interviewed the child in chambers pursuant

           to division (B) of this section regarding the child's wishes and

           concerns as to the allocation of parental rights and responsibilities

           concerning the child, the wishes and concerns of the child, as

           expressed to the court;

                     (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 the child's home, school, 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, including all arrearages, that are required of that parent
Stark County, Case No. 2018CA00074                                                           14


              pursuant to a child support order under which that parent is an

              obligor;

                      (h) Whether either parent or any member of the household of

              either parent previously has been convicted of or pleaded guilty to

              any criminal offense involving any act that resulted in a child being

              an abused child or a neglected child;

                      (i) Whether the residential parent or one of the parents subject

              to a shared parenting decree has continuously and willfully denied

              the other parent's right to parenting time in accordance with an order

              of the court;

                      (j) Whether either parent has established a residence, or is

              planning to establish a residence, outside this state.

       {¶37} In this case, the trial court set forth each statutory factor and addressed the

evidence and testimony provided in the case. Mother’s argument on appeal is addressed

to (a), (b), (c), (d), (e), and (f), and she argues the trial court’s findings are not supported

by the evidence. Upon review of the record in this case, however, we find there is

competent and credible evidence to support the trial court's conclusions with regard to

these factors.

       {¶38} It is evident from both parents’ testimony and actions that they both wish to

be named custodial and residential parent for school purposes. Mother argues that the

G.A.L. recommended shared parenting and both parties were open to it. The trial court,

however, specifically stated shared parenting was unworkable given the parties’ failure to

communicate. The trial court pointed out the evident ill will the parties have for each
Stark County, Case No. 2018CA00074                                                         15


other, to the detriment of their son’s physical and emotional well-being. Upon our review

of the record, we find the trial court did not abuse its discretion in rejecting shared

parenting.

       {¶39} G.T. has expressed to the G.A.L. that he wants to continue to live with

Father. Contrary to Mother’s allegations, there is no evidence G.T. has been “bribed” or

coerced into stating his wish to live with Father. The wishes of the child constitute merely

one factor that a trial court must consider in determining the best interests of the child; it

is not the controlling factor and should not be the only factor upon which a trial court bases

its decision. Nusbaumer v. Cherry, 5th Dist. Stark No. 1998CA00243, unreported, 1999

WL 254489, *3. “In essence, a trial court should evaluate a child's wishes and concerns

regarding the allocation of parental rights and responsibilities from the standpoint of their

depth, sincerity, and the extent they reflect changed circumstances within the parent-child

relationship or relationship between the parties.” Butland v. Butland, 10th Dist. Franklin

No. 95APF09-1151, 1996 WL 362038, *4, appeal not allowed, 77 Ohio St.3d 1492, 673

N.E.2d 148 (1996). A trial court does not abuse its discretion in giving more weight to the

child’s wishes than it gave to his adjustment to his home, school and community where

the child had sufficient reasoning ability to express his wishes and concerns, and that

there were no special concerns that would lead the Court to conclude that it would not be

in the child's best interest to determine his wishes and concerns. In re Beekman, 4th Dist.

Pike No. 03CA710, 2004-Ohio-1066, ¶ 19; see also, Tomaszewski v. Tomaszewski, 8th

Dist. Cuyahoga No. 86976, 2006-Ohio-3357.

       {¶40} The trial court appropriately took the wishes and concerns of G.T. into

account in making its decision, and also analyzed the remaining factors of R.C.
Stark County, Case No. 2018CA00074                                                          16


3109.04(F)(1). Thus, the trial court's best interest decision was not arbitrary or

unreasonable. See, Forney v. Forney, 12th Dist. Clermont No. CA2011-08-057, 2012-

Ohio-3427.

       {¶41} G.T’s interaction and interrelationship with his parents, siblings, and other

relatives, and his adjustment to Father’s home, school, and community, were contested

by Mother and her relatives. On appeal, Mother cites the “change in personality” she and

her relatives noticed recently, with G.T. becoming disrespectful toward her. As the trial

court noted, the changes in G.T.’s personality could be attributed to the stress of the

ongoing custody battle. Any incidental impairment of G.T.’s relationship with D.T. due to

G.T. living with Father is outweighed by the benefits of G.T. staying where he wants to

be. Despite the testimony of Mother and her witnesses that G.T. has experienced hygiene

problems and a difficult adjustment to a new school, those allegations were not

corroborated by the G.A.L. or school personnel. The trial court noted G.T. needs a

structured agenda including chores, deadlines for homework, physical hygiene, and goals

to accomplish.

       {¶42} Mother argues Father has a “history of mental health issues” weighing

against his appointment as residential parent. We find, as did the trial court, that incidents

occurring in 2011 are remote and there is no evidence any similar incident might recur.

       {¶43} Finally, although Mother provided contrary testimony to several of the

statutory best-interest factors, we defer to the trial court's interpretation and weight of the

evidence as it observed first-hand witnesses and their demeanor. Wright v. Wright, 5th

Dist. Stark No. 2012CA00232, 2013-Ohio-4138, 2013 WL 5406795. We find no abuse of

discretion in the trial court's conclusion it was in the best interest of G.T. to name Father
Stark County, Case No. 2018CA00074                                                    17


the residential parent and legal custodian. The decision of the trial court thoroughly

analyzed the factors and the findings were supported by the record.

                                    CONCLUSION

       {¶44} Mother’s sole assignment of error is overruled and the judgment of the Stark

County Court of Common Pleas, Domestic Relations Division is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.
