[Cite as Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610.]




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




BRAMMER,

       APPELLANT,                                              CASE NO. 9-10-49

       v.

BRAMMER,                                                       OPINION

       APPELLEE.




                Appeal from Marion County Common Pleas Court
                                Family Division
                           Trial Court No. 06 DR 119

                     Judgment Reversed and Cause Remanded

                            Date of Decision: May 31, 2011




APPEARANCES:

       Ted I. Coulter, for appellant.

       Kevin P. Collins, for appellee.
Case No. 9-10-49




SHAW, Judge.

       {¶1} Appellant, Vance Brammer, appeals the August 19, 2010 judgment of

the Marion County Court of Common Pleas, Family Division, modifying the

parties’ shared-parenting plan to designate appellee, Shannon Brammer, as

residential parent of the parties’ children for school purposes.

       {¶2} The parties were married on August 28, 1998, and had two children

together: Hayden, born in October 2000 and Keegan, born in June 2003. The

parties divorced in 2006, and a joint shared-parenting plan was put into effect in

which both parents exercised equal parenting time.          Pursuant to the shared-

parenting plan, each parent was designated the residential and custodial parent of

the children during their individual periods of parenting time.        The shared-

parenting plan also specified that the children attend school in the River Valley

School District unless the parties agreed to change school districts by mutual

consent.

       {¶3} On January 19, 2010, Shannon filed a motion to modify parental

rights and responsibilities. In support of her motion, Shannon asserted that a

change in circumstances had occurred because she recently received a job

promotion and intended to relocate to Tennessee, where her fiancé and his

children resided.

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           {¶4} On February 12, 2010, the trial court referred the matter to the family-

services coordinators pursuant to R.C. 3109.04(C) and Civ.R. 75(D) and ordered a

review of the case to be conducted and a report issued.

           {¶5} On February 23, 2010, Vance filed a motion to modify parental rights

and responsibilities, asserting that it is in the best interests of the children to

remain in Ohio.

           {¶6} On May 14, 2010, the family-services coordinator assigned to the

case, Ken Warren, submitted his report to the trial court.                Warren met with

Shannon, Vance, and both children while conducting his review. In his report,

Warren stated that both parents are “capable and are in fact providing good homes

for their children.” Warren further noted that a primary contention between the

parties was whether their youngest, Keegan, would receive adequate attention for

his special-education needs in River Valley schools.1                   Specifically, Vance

indicated that if he were to be named the residential parent for school purposes, he

would keep the children in River Valley schools, where they had begun to develop

strategies from multiple resources to assist Keegan with his special-education

needs. Shannon, on the other hand, expressed to Warren that she intended to place



1
    Keegan was diagnosed earlier that year with Tourette ’s syndrome.

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the children in an elementary school in Brentwood, Tennessee, where she believed

the children would be better served educationally.

         {¶7} Ultimately, Warren recommended that it is in the children’s best

interest to remain in Marion and to designate Vance as the children’s residential

parent for school purposes, noting that the children seemed well connected to their

school, neighborhood, and extended family—particularly to the children’s paternal

uncles and cousins and maternal grandmother, all of whom reside in the Marion

area.

         {¶8} On May 24, 2010, the trial court heard testimony from several

witnesses including friends, neighbors, co-workers, and family members of each

party.    In addition, Vance offered the testimony of the principal of Heritage

Elementary School, where the children attended school in Marion at the time of

the hearing, as well as each child’s current teacher at Heritage Elementary.

During this hearing, the report submitted by the family-services coordinator was

admitted into evidence as the trial court’s sole exhibit.

         {¶9} On August 9, 2010, the proceedings continued, and both parties

offered their testimony concerning the modification of the shared-parenting plan.

At the end of the testimony, several exhibits were admitted into evidence,



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including a “504 accommodation plan” for Keegan prepared by Heritage

Elementary and the medical records of both children.

        {¶10} On August 19, 2010, the trial court issued its decision on the matter.

The trial court determined that the requisite change in circumstances had occurred

in order to consider modification of the parties’ prior decree. The trial court then

evaluated the statutory factors listed in R.C. 3109.04(F)(1) to determine whether a

modification of the parties’ parental rights and responsibilities is in the children’s

best interest. Ultimately, the trial court concluded that it is in the best interest of

the children for Shannon to be named residential parent for school purposes and

found that the harm likely to be caused by a change of environment is outweighed

by the advantages of the change of environment to the children. Accordingly, the

trial court granted Shannon’s motion and modified the parties’ shared-parenting

plan.

        {¶11} The trial court ordered Shannon to have the children for the majority

of the school year, while Vance was given parenting time during the children’s

summer school break with an exception of two weeks, which were reserved for

Shannon so that she could take the children on a family vacation. Vance was also

granted parenting time every fall school break, Thanksgiving, and spring break in

odd years. The trial court apportioned Christmas break so that both Vance and

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Shannon would receive time with the children during part of the break and would

alternate spending Christmas Day with the children every other year.           The

remaining holidays were allocated pursuant to Loc.R. 32. The parties were also

ordered to share equally the cost of transportation for parenting time. Notably,

Vance and Shannon each remained the residential parent and legal custodian of the

children when exercising his or her individual parenting time as stated in the

original decree.

       {¶12} Shannon and the children subsequently moved to Tennessee. Vance

filed a motion to stay the execution of the August 19, 2010 judgment entry

pending this appeal, which was denied by the trial court.

       {¶13} Vance now asserts the following assignments of error on appeal.

                            Assignment of Error No. I

       In support of the modification of the prior parental rights and
       responsibilities for the minor children, the trial court erred as a
       matter of law and abused its discretion by determining there was a
       substantiated and sufficient “change in circumstances” pursuant of
       [sic] Ohio Revised Code 3109.04(E)(1)(a).

                            Assignment of Error No. II

       In support of the modification of the prior parenting rights and
       responsibilities for the minor children and pursuant of [sic] Ohio
       Revised Code 3109.04(E)(1)(a) and 3109.04(F)(1), the trial court
       erred against the weight of the evidence and abused its discretion in
       determining “that a modification is necessary to serve the best
       interest of the child.”
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                            Assignment of Error No. III

       In support of the modification of the prior parental rights and
       responsibilities for the minor children and pursuant of [sic] Ohio
       Revised Code 3109.04(E)(1)(a)(iii), the trial court erred and abused
       its discretion in determining that “the harm likely to be caused by a
       change of environment is outweighed by the advantages that a
       change of environment would have on the minor child.”

       {¶14} Because Vance’s assignments of error are interrelated, we elect to

address them together.

       {¶15} Initially, we observe that child-custody determinations are some of

the most difficult and agonizing decisions a trial court must make. Therefore, a

trial court must have wide latitude in its consideration of the evidence. Davis v.

Flickinger (1997), 77 Ohio St.3d 415, 674 N.E.2d 1159.              Generally, when

reviewing a ruling pertaining to the allocation of parental rights, the trial court is

to be afforded great deference. Miller v. Miller (1988), 37 Ohio St.3d 71, 523

N.E.2d 846. Thus, we will not reverse a child-custody decision that is supported

by a substantial amount of competent, credible evidence absent an abuse of

discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus.

The term “abuse of discretion” connotes more than an error of judgment; it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

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       {¶16} R.C. 3109.04(E)(1)(a) authorizes a trial court to modify or terminate

a prior decree allocating parental rights and responsibilities. The statute outlines

the elements that the trial court must consider in its determination of whether a

modification of the prior decree is warranted. Specifically, R.C. 3109.04(E)(1)(a)

states the following regarding a modification of a prior custody decree:

                     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.

                   (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.


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      {¶17} When a court is asked to modify a custody decree, the initial

determination to be made by the trial court is whether there has been a change in

circumstances of the child or the residential parent since the prior court order.

Wyss v. Wyss (1982), 3 Ohio App.3d 412, 414, 445 N.E.2d 1153. This finding

should be made prior to weighing the child’s best interest.        The purpose of

requiring a finding of a change in circumstances is to prevent a constant

relitigation of issues that have already been determined by the trial court. Clyborn

v. Clyborn (1994), 93 Ohio App.3d 192, 196, 638 N.E.2d 112. Therefore, the

modification must be based upon some fact that has arisen since the prior order or

was unknown at the time of the prior order. R.C. 3109.04(E)(1)(a).

      {¶18} In reviewing whether the evidence presented in this case

demonstrated that a change in circumstances has occurred, we are reminded that

the change must be of substance, not slight or inconsequential. Flickinger, 77

Ohio St.3d 415, 674 N.E.2d 1159. In addition, R.C. 3109.04(E)(1)(a) does not

require that the change be “substantial,” nor does “ the change * * * have to be

quantitatively large, but rather, must have a material effect on the child.”

McLaughlin v. McLaughlin-Breznenick, 3d Dist. No. 8-06-06, 2007 -Ohio- 1087, ¶

16, citing Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377, ¶ 31.



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       {¶19} In the instant case, the trial court found “that mother’s relocation out

of the State of Ohio is a change in circumstances that will necessitate a

modification of the parental rights and responsibilities for the minor children.” On

appeal, Vance contends that Shannon’s mere “desire” to relocate out of state,

standing alone, is insufficient to constitute a change in circumstances and directs

our review to a series of cases that he asserts reiterates this conclusion. After

reviewing the jurisprudence on this issue, we observe that Vance oversimplifies

the relevant case law.

       {¶20} It is settled that the relocation of the residential parent, in and of

itself, does not constitute a change in circumstances as to support a motion for

change of custody. See, e.g., Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d

599, 604, 737 N.E.2d 551; Vincenzo v. Vincenzo (1982), 2 Ohio App.3d 307, 308-

309, 441 N.E.2d 1139. However, it is equally settled that a court may consider

any attendant circumstances surrounding a residential parent’s relocation that

affect the child’s welfare in determining whether a change in circumstances has

occurred. See Zinnecker v. Zinnecker (1999), 133 Ohio App.3d 378, 383-385, 728

N.E.2d 38, citing Green v. Green (Mar. 31, 1998), 11th Dist. No. 96-L-145. In

particular, “a court may consider the fact that a relocation of the child would

remove him or her from a supportive network of family and friends as a factor in

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finding that a change of circumstances has occurred after the custodial parent

expresses a desire to move to another state.” In re Longwell (Aug. 30, 1995), 9th

Dist. No. 94CA006006.         Indeed, “a move may constitute a change of

circumstances when coupled with evidence of other adverse effects, such as a

disruption in ongoing relationships with extended family.” In re D.M., 8th Dist.

No. 87723, 2006-Ohio-6191, at ¶ 36. In addition, it may be necessary for a trial

court to distinguish between contemplated relocations and those that have already

been accomplished. See DeVall v. Schooley, 5th Dist. No. CT2006-0062, 2007-

Ohio-2582, ¶ 16.

      {¶21} The testimony before the trial court demonstrates that due to an

internal restructuring of Shannon’s employer, the position she held while living in

Marion was “being assumed by other groups” because the company intended to

eliminate the position in June 2010. Shannon accepted a promotion within the

same company, which required her to relocate to Tennessee — seven hours by car

from Marion. The testimony also reveals that Shannon intended to move in with

her fiancé, who also worked for Shannon’s employer as a vice president and

resided with his children in the Nashville area. However, Shannon maintained that

her relocation to Tennessee was based upon her promotion and asserted that the

move would have occurred regardless of her personal relationship.

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       {¶22} Shannon testified that during the past few years, the children had

visited Tennessee five or six times and appeared comfortable with the location.

However, the evidence demonstrates that none of the children’s relatives or friends

live in Tennessee and that the boys had several relatives and friends in the Marion

area, where they had lived since their births. Moreover, due to the nature of the

parties’ prior custody decree and the fact that both parents live in close proximity,

the children had spent a considerable amount of time with both Shannon and

Vance since their divorce in 2006. Shannon’s impending relocation required that

the children would not see one of their parents for an extended period of time.

       {¶23} Based on these attendant circumstances, it is apparent that the

shared-parenting plan in place was no longer feasible given Shannon’s plans to

relocate to Tennessee. Moreover, regardless of who would ultimately be named

the residential parent for school purposes, the children’s lives were going to be

dramatically altered because they would no longer be able spend an equal amount

of time with both parents. Accordingly, we find that the trial court did not err in

finding that Shannon’s impending relocation is a substantial change having a

material effect on the children and constitutes a change in circumstances

contemplated by R.C. 3109.04(E)(1)(a). Therefore, to this extent, Vance’s first

assignment of error is overruled.

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       {¶24} Having concluded that the trial court properly found that the requisite

change in circumstances had occurred, we next turn to the trial court’s

determination that a modification of the prior custody decree is in the children’s

best interest. R.C. 3109.04(F)(1) provides a list of nonexclusive factors for the

trial court to consider in determining the best interest of the children. These

factors include:

                            (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 * * *,
                     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;

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                            (g)    Whether either parent has failed to make
                     all child support payments, including all arrearages,
                     that are required of that parent 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.

       {¶25} In addressing each of the statutory factors relevant to the instant case,

the evidence establishes that both Shannon and Vance wished to be named their

children’s residential parent for school purposes. Moreover, each parent expressed

significant concerns with the children’s residing with the other for the school year.

       {¶26} Shannon’s testimony reveals that her concerns focused primarily on

education and medical issues, particularly with regard to the youngest, Keegan.


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Shannon expressed that she was not satisfied with the way Heritage Elementary in

Marion approached Keegan’s education challenges since his diagnosis with

Tourette’s syndrome. Shannon disapproved of the interventions that the school

had put in place to assist Keegan and the 504 accommodation plan developed

specifically for Keegan and what she viewed as the school’s reluctance to put an

individualized education program (“IEP”) in place for Keegan. Shannon touted

that the school in Brentwood Tennessee, Sunset Elementary—where her fiancé’s

children attended—had many “more resources” and “more money” than Heritage

and thus could better accommodate Keegan by immediately developing an

education plan suited to him. Shannon feared that Keegan would simply fall

through the cracks if he remained in the Marion area schools. However, there was

no evidence presented, aside from Shannon’s mere conjectures, to substantiate that

the school in Tennessee would better serve her children than the school in Marion.

      {¶27} Another major concern for Shannon was obtaining medical treatment

for Keegan’s Tourette’s syndrome. Shannon testified that she and Vance first

noticed Keegan’s ticks in kindergarten, and they got progressively worse.

Shannon explained that as a registered nurse, she is more educated to handle

Keegan’s neurological issues and took the lead in this regard. Shannon expressed

her dissatisfaction with the doctors in Marion and that it took months before she

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could get Keegan an appointment with a neurologist at Nationwide Children’s

Hospital in Columbus.     Throughout her testimony, Shannon asserted that the

community resources available to her in Tennessee were far superior to Marion.

However, the majority of Shannon’s testimony on this point was based on her own

speculation and not on any concrete or independent evidence.

        {¶28} Finally, Shannon expressed her doubts that Vance would adequately

step up and take the lead in attending to the children’s school and medical matters

if he were named residential parent for school purposes. However, there was no

evidence presented demonstrating that Vance was incapable of stepping into this

role.

        {¶29} Vance maintained that he has always been involved with the

children’s education and is more than capable of being the primary parent to

handle his children’s education matters. Vance admitted that Shannon took the

lead in making doctor’s appointments for the boys, but this was due to the fact that

she worked from home and had a more flexible schedule during the day. Vance

indicated that he would have no problem making doctor appointments for the

children if he were named residential parent for school purposes.

        {¶30} Vance testified that he was satisfied with the way Heritage

Elementary approached Keegan’s Tourette’s syndrome. He stated that the 504

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accommodation plan was not requested for Keegan until January 2010, that it took

only a few months to develop, and that it would be in place for the next academic

year to be monitored for its effectiveness and modified accordingly.

       {¶31} Vance’s primary concern with Shannon’s intentions to move the

children out of state was that they would be uprooted from the only family and

community they have ever known. Vance testified to the strong relationships that

the children had built with his two brothers and their families, who all reside in the

Marion area, in addition to childhood friends that they have known for years.

Vance expressed his concern with the children’s moving to Tennessee, where none

of their friends or relatives live. The only people the children were familiar with

in Tennessee were Shannon’s fiancé and his children, who are older than Hayden

and Keegan. Vance worried that if the children moved to Tennessee, their father-

son relationships would greatly suffer.

       {¶32} With regard to the statutory factor R.C. 3109.04(F)(1)(b), we note

that neither party requested that the trial court conduct an in camera interview with

the children, nor did the court apparently find it necessary to do so. However, Ken

Warren, the family services coordinator, interviewed both children and included

his assessment of the children in his report submitted to the trial court.



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      {¶33} Warren’s report indicates that Hayden was in the third grade at

Heritage Elementary School at the time Warren met with him. Warren noted that

Hayden expressed that he was “doing pretty good at school,; that he had “a lot of

friends at school and a few at each parent’s home,; and that “both parents help him

with his homework about equally.” Warren also made the following assessment,

“Hayden seems to be well bonded to both parents and to his brother. He enjoys

having equal time with both parents. He seems to be well adjusted to his school

and has some trepidation about leaving his familiar environment.”

      {¶34} The younger child, Keegan, told Warren that he was in the first grade

at Heritage Elementary and that he was doing well in school. Keegan indicated

that Shannon helps him with his homework at her house, and Vance helps him

with his homework at his house if he says he needs help. Keegan also told Warren

that he played basketball and flag football and that his father went to his games

and that his mother was there sometimes. Warren noted that “Keegan seems to be

well bonded to both parents but perhaps more so to his mother. Keegan said that

they were going to get a computer and could talk to their father on the computer.”

      {¶35} The evidence before the trial court regarding the next statutory factor

pertaining to the children’s interaction and interrelationship with their parents,

siblings, and any other person who may significantly affect their best interest

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indicates that the vast majority of these relationships were established and

cultivated in the Marion area.

       {¶36} Shannon testified that she is very involved with the children, taking

them to classes at the YMCA and attending swimming classes.               Shannon

participated in their school as a room mother and accompanied the children on

school field trips as a chaperone. Testimony before the court also demonstrates

that Keegan is extremely close to his mother. Shannon also presented testimony

that Keegan preferred to be in her care and would sometimes hide when Vance

came to take the children for his visitation. However, there was also testimony

before the trial court from Shannon’s mother that Keegan also hid from Shannon

when she came to pick up the children. Shannon’s mother explained that the

parties’ back-and-forth custody arrangement in the shared-parenting plan was very

difficult on Keegan.

       {¶37} Vance testified that the boys were active in sports. Vance stated that

he and his brother, Vince, helped coach Hayden’s football team. Hayden played

on the same team as Vince’s son, Hayden’s cousin, who was the same age as

Hayden. Each year, Vance helped Hayden build a pinewood-derby car for the

Scouts’ pinewood derby race. Vance also coached Keegan’s soccer team for two

years and helped as a substitute coach for his T-ball team. Vance testified that he

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and the boys went fishing with his brothers and their kids, who are all around the

same ages. Vance recalled that they had already been on several fishing trips that

summer when he provided his testimony in August 2010.

       {¶38} Vince Brammer, Vance’s brother, testified that he lived in the

Marion area with his family. Vince stated that he and his wife built a house down

the street from Shannon and Vance so that their families could be close to one

another. Vince testified that even though Shannon and Vance moved out of the

neighborhood after they divorced, Hayden and Keegan remained very close to his

children. Vince explained that in addition to playing sports and fishing together,

the cousins often have sleepovers at each other’s houses along with Vance and

Vince’s other brother, Victor, who also lives in Marion and has children around

the same age.      Vince expressed his concern that if the children moved to

Tennessee, it would break the bonds between the cousins. Vince described his

relationship with his family and both his brothers’ families as a “support system”

that will fill in to help with the children when needed. Vince testified that in the

past, they have helped Vance get the children to and from school and had assisted

them with their homework when Vance was unable to do so.

       {¶39} Shannon’s mother, Shirley West, also lives in the Marion area and

for several years played a significant caretaker role in the children’s lives, seeing

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them at least once a week. Shirley’s testimony reveals that she was the only

grandparent in the children’s lives.   Shirley explained that she filled in as a

babysitter for both Shannon and Vance when needed and that she developed a

close relationship with her grandsons.    However, she recently started a new

company and was no longer able to spend the same amount of time with the

children because she traveled often with her job. As a result, she now saw the

children only once or twice a month.

      {¶40} Further testimony before the trial court indicates that Shannon has a

sister in Cleveland whom she and children see every three months, but that they

have not seen Shannon’s other sister and brother, who resided in Michigan, for a

couple of years.

      {¶41} The only person residing in Tennessee who testified at the hearing

was Shannon’s fiancé, Mark Rappe. Mark testified that Hayden and Keegan had

visited his home in Brentwood, Tennessee, where Shannon intended to reside once

she relocated, three to five times within the past two years. Most of these visits

occurred over the span of a weekend. Mark explained that he has two children, a

14-year-old daughter and a 12-year-old son. Mark recalled that Hayden and

Keegan have been on vacations with his family to Florida. Mark stated that his



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children have bonded well with Hayden and Keegan and are excited for the boys

to join their family.

       {¶42} The next factor to be considered by the court addresses the children’s

adjustment to their home, school, and community. As previously stated, much of

the testimony before the court demonstrates that the children had forged strong

bonds with family and friends in the Marion community where they have lived

their entire lives. However, a major point of contention between the parties

focused on the adequacy of River Valley schools in educating their children.

       {¶43} Vance presented the testimony of Craig Lautenslager, the principal

of Heritage Elementary, as well as the testimony of Jennifer Miley and Sally

Dean, who were Hayden’s and Keegan’s teachers at Heritage Elementary.

       {¶44} Principal Lautenslager testified that River Valley schools are ranked

as excellent in the state-wide rankings.      He further testified that third-grader

Hayden is well adjusted to the River Valley school system. Principal Lautenslager

reviewed Hayden’s current report card and testified that overall, Hayden is having

“a very successful time at Heritage” and that he was on par with other students in

meeting the grade-level standard.

       {¶45} Principal Lautenslager then reviewed Keegan’s records and testified

that first-grader Keegan was also well adjusted to the school.             Principal

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Lautenslager testified that the school brought Keegan into the intervention

assistance team (“IAT”), which is “a general education initiative * * * that

happens when either the parent or the teacher thinks that a child might need some

additional work or strengths or some areas to receive some additional

intervention.” Principal Lautenslager testified that in Keegan’s case, the IAT was

initiated due to his Tourette’s syndrome and his teacher’s concern that his reading

level was below the target level for his grade. Principal Lautenslager explained

that the IAT had met twice regarding Keegan. According to Lautenslager, the first

meeting took place on April 14, 2010, and included Vance, the special-education-

intervention teacher, Keegan’s classroom teacher, and himself.         The second

meeting, on May 19, 2010, had occurred one week before Lautenslager gave his

testimony to the court and included Vance and Shannon, the special-education-

intervention teacher, the classroom teacher, the school psychologist, and himself.

      {¶46} At this second meeting, the team discussed whether the interventions

and accommodations put in place since the first meeting were successful.

Principal Lautenslager reviewed his notes from the meeting and noted that Keegan

had made process with his reading level. The team also discussed adjusting

certain interventions and accommodations that appeared not to be working well

for Keegan.     After assessing this data and determining that some of the

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accommodations were successful, the team concluded that a 504 accommodation

plan, rather than an individualized education plan (“IEP”),2 would be more

appropriate for Keegan due to its flexibility and the fact that Keegan is very bright,

does not exhibit any signs of a learning disability, and does not like to be isolated.

       {¶47} Principal Lautenslager explained that a 504 accommodation plan “is

a general [education] initiative where we put accommodations that will follow

Keegan wherever he goes.”           Principal Lautenslager further described the

accommodations appropriate for Keegan: “[T]he accommodations we’re going to

give him are that he needs prompt redirections, he needs sentence starters, he

needs clarifications, he needs a quiet environment, extended time, silent reading,

and reading alone without an audience.” Principal Lautenslager explained that

these accommodations will also be in place when Keegan takes a statewide test or

a diagnostic-level test and will follow him as he advances to the next grade level.

       {¶48} Keegan’s teacher, Sally Dean, also provided testimony regarding

Keegan’s performance in school. Dean remarked that Keegan is a very happy

child who is right on target with his math, social studies, and science skills. Dean

acknowledged that there is some concern that Keegan’s reading skills are slightly


2
 According to Principal Lautenslager, an IEP would require that Keegan be given special
instruction.

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Case No. 9-10-49




behind the target level.   However, Dean confirmed that a 504 plan is being

developed to assist Keegan in that regard. In addition, Dean commented on the

speed in which Heritage acted to address Keegan’s special needs: “Moving to a

504 [plan] for Keegan in two months is exceptional. I’ve never seen an IAT

process go as quickly as I have with Keegan. And I do at least four IAT’s a year

on children.”

        {¶49} Dean testified that beginning in November 2009, she had several

meetings with both Shannon and Vance concerning Keegan’s reading level and his

involuntary muscle movements, which were later diagnosed as ticks caused by

Tourette’s syndrome. Dean explained that some special accommodations had

been developed to assist Keegan, and he was making progress as a result. Dean

testified that she kept a log counting the number of ticks Keegan had during class

so the neurologist could understand when the ticks occurred. She further testified

that Keegan’s ticks had significantly improved and that she was pleased with the

progress Keegan has made with his reading skills since the beginning of the school

year.

        {¶50} Hayden’s teacher, Jennifer Miley, also provided testimony. Miley

testified that Hayden does best in science and social studies and with hands-on

activities and that she was very proud of his accomplishments in reading. Miley

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testified that both parents were involved with Hayden’s schooling and that Vance

helped chaperone one of the class field trips during the year.

       {¶51} With regard to the statutory factor concerning the mental and

physical health of all persons involved in the situation, the evidence reveals that no

one involved suffered from any physical-health restraints and that the only health

concern is monitoring Keegan’s Tourette’s syndrome as it relates to school and

social matters.

       {¶52} The evidence before the trial court also indicates that Vance and

Shannon operated effectively under the shared-parenting plan for four years. Both

were cordial with each other in handling custody matters and accommodated each

other when scheduling issues arose. There was also no child support ordered as

part of the original decree and no indication that one parent willfully or

continuously denied the other parent’s right to parenting time.

       {¶53} With regard to the last statutory factor considering a parent’s plans to

move out of state, the evidence before the court clearly demonstrates that Shannon

intended to move to Tennessee, where she planned to establish her permanent

residence.

       {¶54} In its judgment entry modifying the parties’ shared-parenting plan,

the trial court stated that it considered the best-interest factors enumerated above

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in determining whether the evidence warranted a modification of the prior custody

decree. The trial court determined that it is in the children’s best interest to

modify the prior decree. However, despite the majority of the evidence discussed

above supporting keeping the children in Marion and naming Vance the residential

parent for school purposes, the trial court concluded that it is in the children’s best

interest to designate Shannon as the residential parent for school purposes.

       {¶55} In reviewing the trial court’s rationale for its conclusion, we note that

the trial court appears to focus on the testimony presented that the children would

receive a better education in Tennessee than if they remained in Marion, and that

Shannon is the parent better equipped to address Keegan’s medical needs.

Specifically, the trial court concluded:

                            The area in which [Shannon] will be residing in
                     Nolensville, Tennessee is reported to have high ratings
                     for their scholastic and academic achievements. Upon
                     investigation of the schools Mother reports and
                     believes Keegan will be better served, due to his
                     learning difficulties, through the school in Nolensville,
                     Tennessee.      She believes that the Nolensville,
                     Tennessee schools will offer both children a better
                     education than the schools in Marion, Ohio. Mother is
                     very educationally driven for the children.

                             ***

                            Mother has been, as agreed by all parties, the
                     primary parent to address the medical issues for the
                     children. Keegan’s situation, although not critical, is
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Case No. 9-10-49




                     going to require close medical attention. Mother is a
                     registered nurse and has educated herself on Tourette’s
                     syndrome and its treatment.         Both parties are
                     committed to insuring that the child has the
                     appropriate medical care; however, mother is in the
                     most advantageous position to advocate for the child’s
                     proper medical treatment as well as educational
                     supports.

       {¶56} Initially, we observe that in contrast to the considerable testimony

regarding the specific programs offered by Heritage Elementary, there is virtually

no actual evidence to support the trial court’s conclusion that the children will

actually be better served by the Tennessee school.         The limited testimony

concerning the school in Tennessee was presented by Shannon, her fiancé, and a

good friend of the couple who used to substitute teach at the school and admitted

that it was difficult to compare schools state-by-state because of the different

ranking systems used. Most of the testimony presented by Shannon was simply

based on her belief that the school would be better for Keegan, without any

independent evidence corroborating her opinions on the matter. Furthermore,

despite Shannon’s dissatisfaction with Heritage Elementary, the evidence supports

that the school has used every resource available to develop accommodations for

Keegan and that he was making progress as a result of these efforts.

       {¶57} In addition, even though the evidence indicates that Shannon took the

lead in handling the children’s education and medical issues, there is no indication
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Case No. 9-10-49




in the record that Vance is incapable of assuming this role. To the contrary,

Vance’s testimony demonstrates that his involvement with the children’s

education and medical matters has been substantial and that he would be willing to

continue to ensure that the children’s needs are met if he were named residential

parent for school purposes.

      {¶58} We also observe that the trial court’s conclusion appears to focus

almost entirely on the youngest child, Keegan, who suffers from Tourette’s

syndrome, with which he was diagnosed only months prior to the trial court’s

decision. The trial court seems to completely overlook uncontroverted testimony

indicating that the older child, Hayden, is extremely well adjusted to the school

and community in Marion and is reluctant to move out of state.

      {¶59} Notwithstanding these observations, we note that none of the best-

interest factors contained in R.C. 3109.04(F)(1) address the school or community

the child will experience if the custody decree is modified. Rather, the factors

almost exclusively focus on the child’s current environment at the time the court

considered a modification of the prior decree. In this respect, the evidence before

the trial court overwhelmingly reveals that the children have developed strong ties

to the Marion community, where the majority of their extended family lives.



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      {¶60} In reviewing the testimony presented to the trial court within the

framework of the statutory factors, we conclude that the evidence heavily favors a

decision to keep the children in Marion, where the children are well adjusted and

established in a supportive family and community network. Nevertheless, despite

this substantial amount of evidence and the recommendation of the family-services

coordinator supporting a decision to designate Vance the children’s residential

parent for school purposes, the trial court concluded otherwise. However, we

cannot find evidence in the record that supports uprooting the children from an

environment where they are surrounded by family and friends simply to place

them in a new state where the only people known to them are their mother, her

fiancé and his children, with whom they have had only intermittent contact during

the past two years. Moreover, we do not find that Shannon’s belief regarding a

potential advantage that the youngest child may receive in the Tennessee school is

strong enough to outweigh the evidence from teachers and a school principal

substantiating actual educational advantages that both children have received

while residing in Marion. Therefore, we do not find that the evidence supports the

trial court’s decision that it is in the best interest of the children to designate

Shannon as residential parent for schools purposes.



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Case No. 9-10-49




       {¶61} We are mindful that the trial court is typically afforded wide latitude

in determining custody matters; however, when the trial court’s determination is

not supported by a substantial amount of competent, credible evidence, we have

no choice but to conclude that the decision constitutes an abuse of discretion.

Furthermore, we are also reminded that “ ‘[t]he clear intent of [R.C.

3109.04(E)(1)(a) ] is to spare children from a constant tug of war between their

parents who would file a motion for change of custody each time the parent out of

custody thought he or she could provide the child a “better” environment. The

statute is an attempt to provide some stability to the custodial status of the

children, even though the parent out of custody may be able to prove that he or she

can provide a better environment.’ ” Flickinger, 77 Ohio St.3d 415, 418, 674

N.E.2d 1159, quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 OBR 479,

445 N.E.2d 1153.

       {¶62} Accordingly, we must conclude that the trial court abused its

discretion in determining on this evidence that it is in the children’s best interest to

designate Shannon the residential parent for school purposes. As a result, it is our

determination that the trial court’s judgment was not supported by a substantial

amount of competent, credible evidence and is in fact against the weight of the

evidence.

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       {¶63} Based on the reasons above, Vance’s second and third assignments

of error are sustained, the judgment is reversed, and the cause is remanded for

further proceedings consistent with this opinion.

                                                             Judgment reversed
                                                           and cause remanded.

ROGERS, P.J., and WILLAMOWSKI, J., concur.

/jlr




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