Williamson v. Williamson , 2017 Ohio 1082 ( 2017 )

[Cite as Williamson v. Williamson, 2017-Ohio-1082.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STACEY ANNE WILLIAMSON, ) CASE NO. 16 JE 0022
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
MARK ALAN WILLIAMSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Domestic Relations Appeal from the
Court of Common Pleas of Jefferson
County, Ohio
Case No. 11 DR 031
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane Hanlin
P.O. Box 1506
100 N. Fourth Street, l0th Floor
Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Lynsey Lyle-Opalenik
991 Main Street
Wellsville, Ohio 43968
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 22, 2017
[Cite as Williamson v. Williamson, 2017-Ohio-1082.]
ROBB, P.J.
{¶1} Defendant-Appellant Mark Alan Williamson appeals the decision of
Jefferson County Common Pleas Court denying his motion for reallocation of
parental rights and responsibilities. For the reasons expressed below, the trial court
did not abuse its discretion in denying his motion for reallocation of parental rights
and responsibilities. The trial court’s decision is affirmed.
Statement of the Facts and Case
{¶2} Appellant and Plaintiff-Appellee Stacey Anne Williamson were married
in December 2004 and divorced in August 2012. The parties have two minor
children. In the divorce decree, Appellee was named the residential parent and
Appellant was granted parenting time above the standard visitation schedule.
8/27/12 Divorce Decree. The parenting time followed the Parenting Time Guidelines
except Appellant was granted additional mid-week parenting every Wednesday
beginning at 5:00 p.m. and continuing until Thursday when the children would return
to school or, if there was no school, at 9:00 a.m. 8/27/12 Divorce Decree. The
divorce decree did not contain a restriction on Appellee relocating. 8/27/12 Divorce
Decree.
{¶3} In June 2014, Appellant filed a motion for shared parenting and a
change of the companionship schedule. The following month the parties reached a
settlement and Appellant withdrew his motion. 7/28/14 J.E. As part of the
settlement, Appellant was granted additional parenting time; on the weeks he did not
have weekend visitation his parenting time would begin on Wednesday at 5:00 p.m.
and would continue through Friday morning. 7/28/14 J.E.
{¶4} On March 30, 2016, Appellee filed a notice of intent to relocate; she
was moving to Sterling, Michigan on June 1, 2016. 3/30/16 Notice. In response,
Appellant filed objections to the notice of intent to relocate and moved for custody of
both minor children. 4/14/16 combined objection and motion.
{¶5} A hearing on the notice, objections, and motion for custody was held
before the magistrate. Both parties, Appellant’s father, brother, and cousin testified.
It is undisputed both parents are good parents and Appellant has always played an
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active role in parenting. At the time of the hearing, both parties lived in Richmond,
Ohio in the Edison Local School District and the children attended elementary school
in that district.
{¶6} Appellant’s family lives in close proximity, and the children have a
relationship with their paternal grandparents, uncles, and cousins. Appellee is
originally from Sterling, Michigan where her family still resides. Sterling, Michigan is
approximately 400 miles from Richmond, Ohio and it takes about six to seven hours
to drive from Richmond to Sterling.
{¶7} Appellee decided to relocate to Sterling, Michigan when her job ended,
and she was not able to acquire another job. Appellee is a nurse practitioner and
earned $90,000 per year working for Dr. Ybanez-Morano at Trinity Medical Center.
The doctor closed her office. Appellee looked for equivalent positions, meaning one
with 8:00 a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m. work hours and no on call hours,
in the Steubenville, Weirton, and Wheeling areas; however, she could not find one.
She did not look or accept a position from cities outside that area because the
commute time would not make it possible to manage the children’s bussing and
extracurricular schedules. She has secured a position at Saint Mary’s of Michigan
Standish Hospital, where her hours would correspond with the children’s school day
and there would be no on call hours. She will be making $90,000 a year.
{¶8} Appellant and his witnesses testified if Appellee is permitted to relocate
to Michigan with the children, the relationship with their father and the paternal side of
the family will be greatly diminished. Appellant testified his visitation will be greatly
diminished and he will not be able to have as much involvement in their
extracurricular activities as he does now; he coaches for one child and goes to the
other child’s practices and games. He admitted the children have mixed emotions
about moving; they are excited, but do not want to move. He asked the court to
prevent the children from moving or to grant him custody.
{¶9} The children also have a relationship with the maternal side of the
family; they go on yearly camping trips and often visit that side of the family. The
house Appellee has a contingency contract to buy is within minutes of her parent’s
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house. One of Appellant’s brothers lives about an hour to ninety minutes from
Sterling, Michigan. Appellee testified she would not prevent Appellant from seeing
the children and would permit him extra visitation time. She stated the children are
excited about moving, but indicated she would not move if moving would cause her to
lose custody.
{¶10} Both children are involved in extracurricular activities – softball and tee
ball. Both children do well in school. The youngest child has hearing issues and the
Edison Local School District purchased equipment to help in the child’s learning.
This child sees a specialist in Akron. Appellee testified she contacted the school
system in Michigan and the child’s services for his hearing would continue after an
evaluation from that school. She also stated the school has a contract with Central
Michigan University, which has an audiologist and a team of doctors of audiology
students that go to the school to work with the students who have speech and
hearing issues.
{¶11} Although noting the strong presumption in favor of retaining the present
residential parent, the magistrate determined there was a change in circumstances
and reallocation of parental rights was in the best interest of the children if Appellee
moved to Michigan:
In this case the Plaintiff’s planned move is severe and it will definitely
have an adverse impact on the children. The court must therefore look
at what is in the best interest of the children.
In deciding what is in the best interest of the children, the court must
consider all of the facts and factors listed in Section 3109.04. The
courts have approved a move when the residential parent is remarrying,
being transferred, or seeking more stable employment. See Rohrbaugh
v. Rohrbaugh, 97 CA 183 (Seventh District 2000). In this case none of
these factors apply. The Court places a high priority on parenting by
both parents. The Plaintiff’s proposed move disregards this factor. A
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separation from a parent can cause a great deal of stress for children of
this age. The fear of losing a parent is very real.
Second, the Plaintiff’s move is not based upon economic necessity.
She is in a highly trained specialty that is in great demand at hospitals
and doctor’s offices. She has not made an adequate search for local
employment. She has simply used her current situation as an excuse
to return home even though she has lived here for over ten (10) years.
Her decision is self-centered and does not take the feeling and needs of
the children into consideration.
Her new employment is at the same income level as her prior job and,
therefore will not produce an improvement in the children’s standard of
living. It will only produce anxiety and heartache for the kids and the
Defendant. Therefore the Court finds that a reallocation of parental
rights is in the best interest of the children and any harm resulting will
not be outweighed by any advantage if Plaintiff is to leave with the
children. In the event that Plaintiff moves to Michigan, the children shall
remain in Jefferson County, Ohio in the custody of the Defendant, who
shall be designated the residential parent. The Plaintiff shall be
designated the nonresidential parent.
6/21/16 Magistrate Decision.
{¶12} Appellee filed objections and supplemental objections to the decision
arguing the magistrate did not apply the change in circumstances test correctly.
6/21/16 Objections; 7/22/16 Supplemental Objections. Appellant filed replies asking
the trial court to overrule the objections and adopt the magistrate’s decision. 7/1/16
Reply; 8/5/16 Reply to Supplemental Objections.
{¶13} The trial court held a hearing on the objections. 8/22/16 Trial Court
Hearing. At this hearing, the parties presented their arguments. No additional
evidence was taken; rather, the trial court conducted an independent analysis after
reviewing the transcript of the magistrate’s hearing. 8/22/16 Trial Court Hearing. The
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trial court sustained the objections and denied Appellant’s request for reallocation of
parental rights and responsibilities. The trial court held the magistrate erred in its
decision and there was insufficient evidence to show actual harm has occurred to the
children. Since there was no harm, the court found there was no change in
circumstances. In an abundance of caution, the trial court also provided a best
interest analysis in case the decision was appealed. It concluded it was not in the
best interest of the children for custody to be change from Appellee to Appellant.
9/7/16 J.E.
{¶14} Appellant filed a notice of appeal from that decision and requested a
stay pending appeal. The trial court and this court denied the requests for stay.
9/22/16 Tr. Ct. J.E.; 12/5/16 COA J.E.
Assignments of Error
{¶15} Appellant sets forth two assignments of error and addresses them
together. These assignments provide:
“The trial court’s decision to find no change of circumstances and, therefore,
no basis to change custody of the minor children from that of Appellee to Appellant
was against the manifest weight of the evidence.”
“The trial court abused its discretion to the prejudice of Appellant in sustaining
Appellee’s objections to the Magistrate’s Decision wherein the Magistrate had applied
the test utilized in determining a change of custody petition and thereby changed
custody from Appellant to Appellee.”
{¶16} The trial court made two findings in its September 7, 2016 judgment
entry. First, it found there was no change in circumstances; no actual harm was
shown. Second, it found even if there was a change in circumstances, it was against
the best interest of the children to change custody.
{¶17} The trial court’s decisions are reviewed for an abuse of discretion.
Davis v. Flickinger, 77 Ohio St. 3d 415, 418-419, 421, 674 N.E.2d 1159 (1997)
(custody, change in circumstances). A trial court’s determination regarding child
custody matters that is supported by competent and credible evidence will not be
reversed absent an abuse of discretion. In re Dissolution of Marriage of Early v.
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Early, 7th Dist. No. 15 CO 0015, 2016-Ohio-8413, ¶ 17 (denial of request for
modification of shared parenting plan), citing Bechtol v. Bechtol, 49 Ohio St. 3d 21,
550 N.E.2d 178 (1990), syllabus. An abuse of discretion is more than a mere error of
law or judgment; it requires a finding that the trial court's decision was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983).
{¶18} In cases where both parents are loving and bonded to the children, a
custody decision is “difficult and agonizing” for the fact-finder. Id. at 418. These
types of cases are also distressing to reviewing judges as well. Garrett-Long v.
Garrett, 7th Dist. No. 15 MA 0221, 2016-Ohio-7041, ¶ 50. However, a reviewing
court cannot substitute its judgment for the trial court's broad discretion. Davis at
418–419, 421.
{¶19} Appellant agrees we review the trial court’s decision for an abuse of
discretion. However, he additionally contends the magistrate was in the best position
to view the witnesses and make a determination as to their credibility. Since the trial
court did not view the witnesses, Appellant asserts the trial court and by extension
this court should give deference to the magistrate’s decision.
{¶20} In a case procedurally similar to the one before us where a similar
argument was made, the Fifth District disagreed. Davis v. Davis, 5th Dist. No. 2016
AP 05 0031, 2016-Ohio-7205, ¶ 33-34 (Nonresidential parent filed motion for change
of custody based on residential parent’s relocation to another state and remarriage.
Magistrate found change of circumstances and it was in the best interest of children
for nonresidential parent to be granted custody. Residential parent objected. Trial
court sustained the objections and reversed the magistrate’s decision.). It explained:
We have generally recognized a trial court enjoys broad discretion in
determining whether to sustain or overrule an objection to a
magistrate's decision. Hrabovsky v. Axley, 5th Dist. Stark
No.2013CA00156, 2014–Ohio–1168; Ford v. Ford, 5th Dist.
Tuscarawas No.2012 AP 03 0025, 2012–Ohio–5454. Moreover,
magistrates are arms of their appointing courts, “which remain
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responsible to critically review and verify the work of the magistrates
they appoint.” Quick v. Kwiatkowski, 2nd Dist. Montgomery No. 18620,
2001 WL 871406 (Aug. 3, 2001), citing Normandy Place Associates v.
Beyer, 2 Ohio St. 3d 102, 443 N.E.2d 161 (1982). While the magistrate
is the “initial fact finder and issue resolver,” the trial court remains the
“ultimate fact finder and issue resolver.” See Dayton v. Whiting, 110
Ohio App. 3d 115, 673 N.E.2d 671 (2nd Dist.1996). Thus, we find our
essential role in determining whether there is relevant, competent and
credible evidence upon which the fact finder could base its judgment is
not altered simply because the trial court overruled the magistrate's
decision.
Id. at ¶ 34.
{¶21} Consequently, the fact that the magistrate and not the trial court heard
the witnesses testify does not change our review.
{¶22} R.C. 3109.04(E) governs when a court may modify a prior decree
allocating parental rights and responsibilities. It provides:
(E)(1)(a) The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds, based
on facts that have arisen since the prior decree or that were unknown to
the court at the time of the prior decree, that a change has occurred in
the circumstances of the child, the child's residential parent, or either of
the parents subject to a shared parenting decree, and that the
modification is necessary to serve the best interest of the child. In
applying these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting decree,
unless a modification is in the best interest of the child and one of the
following applies:
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(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.
R.C. 3109.04(E)(1)(a).
{¶23} Appellee is the residential parent, Appellant is the nonresidential parent,
and neither the divorce decree, nor any subsequent agreement between the parties
limited Appellee’s ability to relocate with the children to another state. Thus pursuant
to R.C. 3109.04(E)(1)(a), in order for the trial court to grant Appellant’s motion for
reallocation of parental rights and responsibilities it was required to find a change has
occurred in the circumstances of the children or a change has occurred in the
circumstances of Appellee, the children’s residential parent. If there is a change in
circumstances, then the trial court must engage in a best interest analysis and
determine if one of the three subsections in R.C. 3109.04(E)(1)(a) is applicable. Only
if there is a change in circumstances, if it is in the best interest of the children for the
parental rights and responsibilities to be reallocated to the nonresidential parent, and
if one of the three subsections in R.C. 3109.04(E)(1)(a) are found is reallocation of
parental rights and responsibilities warranted.
{¶24} Pursuant to the statute, the initial focus is on the change in
circumstances element. Stein v. Anderson, 5th Dist. No. 2009 AP 08 0042, 2010-
Ohio-18, ¶ 13. R.C. 3109.04 does not define the concept. Id. The Ohio Supreme
Court has indicated that in order for a change to qualify as a change in
circumstances, “the change must be a change of substance, not a slight or
inconsequential change.” Davis, 77 Ohio St. 3d at 418. However, the change need
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not be “substantial.” Id. at 417–418. We have held the phrase change in
circumstances “is intended to denote an event occurrence, or situation which has a
material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio
App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000), citing Wyss v. Wyss, 3 Ohio
App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982). See also Brammer v. Brammer,
194 Ohio App. 3d 240, 2011–Ohio–2610, ¶ 18, 955 N.E.2d 453 (3d Dist.) (change
must have a material effect on the child).
{¶25} Courts have concluded relocation, by itself, is not sufficient to be
considered a change in circumstances, but it is a factor in such a determination.
Stein, 2010–Ohio–18; Rohrbaugh, 136 Ohio App. 3d at 604-605; Schiavone v.
Antonellii, 11th Dist. No. 92–T–4794, 1993 WL 548034 (Dec. 10, 1993). The
Eleventh District aptly explained, “since a child is almost always going to be harmed
to some extent by being moved, the non-custodial parent should not be able to
satisfy his or her burden simply by showing that some harm will result; the amount of
harm must transcend the normal and expected problems of adjustment.” Schiavone.
Likewise, a notice of intent to relocate outside the State of Ohio is not a sufficient
change in circumstances. Garrett-Long, 2016-Ohio-7041 at ¶ 35, citing Masters v.
Masters, 69 Ohio St. 3d 83, 86, 630 N.E.2d 665 (1994) (where the mother had a
“desire” to move to Tennessee due to remarriage and a new job) and Campana v.
Campana, 7th Dist. No. 08 MA 88, 2009–Ohio–796, ¶ 33 (noting the mother filed a
notice of intent to relocate to see if the father would object and to see if the court
would find modification of parenting time to the long distance schedule was in the
child's best interests); In re Dissolution of Marriage of Kelly, 7th Dist. No. 09 Ca 963,
2011-Ohio-2642 (mere desire to relocate without substantial steps taken alone does
not constitute change in circumstances).
{¶26} Appellant acknowledges the above law, but contends the change is not
just relocation, but removal of the children from Appellant, his family, the children’s
school and extra-curricular activities. He contends the change will have an adverse
impact on the children thereby resulting in actual harm. In addition to asserting the
children are harmed by the move, he argues Appellee is attempting to limit his
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visitation by moving. He cites our decision in Rohrbaugh to support his position. In
that case, we favorably cited the Schiavone reasoning that a change in
circumstances finding would be “justifiable if it were established that the primary
motive for the move was to restrict the non-custodial parent's ability to visit the
children.” Rohrbaugh, 136 Ohio App. 3d at 606, quoting Schiavone, 1993 WL
548034.
{¶27} Appellant argues Appellee’s desire to limit his visitation is apparent
when considering her testimony about summer visitation at the hearing before the
magistrate. When asked about summer vacation and a visitation schedule, Appellee
suggested she would have the children for two weeks and then Appellant would have
the children for two weeks and they would rotate back and forth in that manner for the
entire summer. Appellant contends if she was not attempting to limit his visitation
she would have suggested a more favorable visitation schedule for him in the
summer to make up for the diminished visitation during the school year. Also,
Appellee did not want to be responsible for additional transportation time, such as
driving the entire way to Jefferson County when it was Appellant’s visitation. The
transportation argument was raised in the reply to magistrate’s objections.
{¶28} On the basis of his assertions, Appellant concludes Appellee’s intent to
relocate greatly impacts the children and is an intent to hinder his visitation.
Therefore, he contends this case is more than a relocation case.
{¶29} Despite Appellant’s attempt to characterize this case as more than a
relocation or desire to relocate case, it is not. Obviously, the relocation will affect the
children’s parenting schedule with Appellant and by extension with his family. It is
clear Appellant is very active in his children’s lives; he exercises and has parenting
time above the standard visitation schedule. Of course any alteration to the
parenting schedule and/or a move beyond a couple hours away from Jefferson
County, Ohio will have an impact on the children. However, in order for a change in
circumstances to be found, the amount of harm must “transcend the normal and
expected problems” of adjustment to relocation and by extension a new visitation
schedule. Schiavone, 1993 WL 548034. The record indicates the children
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sometimes express a desire to not move, but at other times they are excited about
the move. As the trial court noted, this is a normal reaction for children relocating to
a new school or state. There is nothing in the record to suggest the children are
having more than the normal issues with the anticipated move. For instance, the
record does not reveal the children are psychologically in distress about the move
and that distress is manifesting itself physically. There is no testimony from a
psychologist or counselor indicating an adverse impact on the children as a result of
the move.
{¶30} Although we acknowledge case law supporting the conclusion that
relocation for the purpose of hindering visitation and the parent-child relationship may
constitute a change in circumstances, the record does not support the insinuation
Appellee is moving to limit Appellant’s visitation. Reese v. Siwierka, 11th Dist. No.
2012-P-0053, 2013-Ohio-2830, ¶ 31 (“[A] change in circumstances may include ‘a
custodial parent's interference with visitation by a noncustodial parent’ and ‘a
breakdown in communication between the parents and their inability to communicate
and cooperate.’”); Sypherd v. Sypherd, 9th Dist. No. 25815, 2012–Ohio–2615, ¶ 20
(same); Rohrbaugh, 136 Ohio App. 3d at 606. Admittedly, Appellee’s suggested
summer visitation schedule to the magistrate did not provide Appellant with any more
summer visitation to make up for the diminished school year visitation and she
indicated an unwillingness to provide all the transportation for Appellant to exercise
his visitation. However, that does not necessarily indicate she was moving in an
attempt to limit his visitation. Nothing in the record indicates Appellee ever acted in a
way to hinder Appellant’s visitation. There are no contempt motions concerning
Appellee preventing Appellant from exercising visitation. In fact, the record indicates
the parties agreed for Appellant to have extended parenting time in the original
divorce decree and later agreed to permit him additional extended parenting time.
Furthermore, when the trial court awarded Appellant all but three weeks of summer
vacation and ordered Appellee to reimburse Appellant for mileage when he elects to
exercise his parenting time in Jefferson County, Appellee did not object or argue
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against that decision. Consequently, her actions do not indicate the move was an
attempt to limit his visitation.
{¶31} As we have previously noted, these types of cases are not only difficult
for trial courts, but are also difficult for reviewing courts. This is especially the case
when, as here, the evidence overwhelmingly demonstrates both parents love the
children and are actively involved in their lives. In this instance, we conclude the trial
court did not abuse its discretion in finding no change in circumstances. The
evidence supports the conclusion the children will not be harmed by the move; there
is competent, credible evidence indicating the impact the move will have on the
children is the normal and expected problems of adjustment when moving to another
state. Furthermore, competent, credible evidence supports the conclusion Appellee
did not relocate to limit Appellant’s visitation.
{¶32} Since we conclude no change of circumstances occurred, further
analysis is not required under R.C. 3109.04(A)(1). However, in this case, the trial
court also engaged in a best interest analysis in anticipation of an appeal. It found
even if its conclusion regarding no change in circumstances was incorrect, it was not
in the best interest of the children for there to be a change of custody.
{¶33} In reaching such conclusion, the trial court considered the appropriate
factors enumerated in R.C. 3109.04(F) and its reasoning is supported by competent,
credible evidence in the record. At the hearing, Appellee indicated she was looking
for a nurse practitioner position with regular hours and no on call hours to
accommodate the children’s bussing and extracurricular activities schedule. 6/9/16
Tr. 65-67, 69-70, 72-75. Her testimony also indicates the Michigan school would
accept the youngest child’s 504 plan and doctors and student doctors from a local
university with a specialty in hearing and speech issues would come to the school to
provide necessary services. 6/9/16 Tr. 53-54. Likewise, her testimony also
established the children were bonded with both the paternal and maternal sides of
the family. 6/9/16 Tr. 47-49, 60, 76. Consequently, as there was evidence
supporting its decision, we conclude the trial court did not abuse its discretion in
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finding it was not in the best interest of the children to alter custody. We agree with
the trial court’s findings regarding the best interest test.
{¶34} For the above stated reasons, the assignments of error are overruled.
The trial court did not abuse its discretion in denying Appellant’s motion for
reallocation of parental rights and responsibilities.
Conclusion
{¶35} In conclusion, the assignments of error are without merit. The trial
court’s decision is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.