Inscoe v. Inscoe , 121 Ohio App. 3d 396 ( 1997 )

Initially, I note that appellant has not complied with App. R. 12 (A)(2) and 16 (A)(7). The latter requires a separate argument for each assignment of error set forth in the brief, while the former provides that an appellate court may disregard any assignment of error for which an appellant fails to make a separate argument. See Park v. Ambrose (1993), 85 Ohio App.3d 179,186, 619 N.E.2d 469, 474; State v. Newberry (1991), 77 Ohio App.3d 818,820, 603 N.E.2d 1086, 1087-1088; and Vaughters v.Vaughters (May 1, 1997), Scioto App. No. 96CA2412, unreported, 1997 WL 224891. Appellant's failure to comply with the Appellate Rules could, by itself, justify affirming the trial court. Id. Nonetheless, I believe the interests of justice require us to consider the merits.

Appellant's first assignment of error contends that the trial court lacked jurisdiction even to entertain the motion for a modification of parental rights and responsibilities. While the majority agrees, I cannot. R.C. 3109.04 (E)(1)(a) is not so restrictive as appellant would have us believe. The change-of-circumstances test does not focus solely on new conduct or relationships. The focus more properly is upon the then current effect of both new actions and any change in effect upon the child by previously existing conditions. For instance, if the residential parent had a drinking problem at the time of initial determination, but it was not adversely affecting the child, surely a court would not be required to ignore the same drinking problem if it were to later manifest itself in an adverse impact upon the child. The statute speaks in terms of "change * * * in the circumstances of the child * * *." R.C. 3109.04 (E)(1)(a). Just as importantly, while appellant's sexual orientation may have remained the same, the personal relationship in which he is involved has not. The record implies that he now has a different partner.

In my mind, either of these changes, i.e., the change in impact of his orientation or the new interpersonal relationship is sufficient to vest jurisdiction with the trial court.

In all other regards, I concur in the judgment and opinion.