Braatz v. Braatz

706 N.E.2d 1218, 85 Ohio St. 3d 40

• Court: Ohio Supreme Court
• Decided: March 24, 1999
• Docket: No. 97-2566
• Status: Published

Opinions

Alice Robie Resnick, J.

The questions that have been certified for our consideration are (1) “Whether a moving party must demonstrate a change of circumstances for a trial court to modify its prior judgment regarding visitation? * * * At issue is whether R.C. 3109.04 or R.C. 3109.051 is applicable to a modification of visitation,” and (2) “Whether a trial court is required to set forth findings of fact and conclusions of law upon timely request in proceedings involving a modification of visitation.”

R.C. 3109.04 provides in pertinent part:

“(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, his 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.

“(F)(1) 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 list of factors to be considered].” (Emphasis added.)

R.C. 3109.051 provides in pertinent part:

“(A) If a divorce, dissolution, legal separation, or annulment proceeding involves a child and if the court has not issued a shared parenting decree, the court shall consider any mediation report filed pursuant to section 3109.052 of the Revised Code and, in accordance with division (C) of this section, shall make a just and reasonable order or decree permitting each parent who is not the residential parent to visit the child at the time and under the conditions that the court directs, unless the court determines that it would not be in the best interest of the child to permit that parent to visit the child and includes in the journal its findings of fact and conclusions of law. Whenever possible, the order or decree permitting the visitation shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child. * * * ” (Emphasis added.)

In 1986, this court held that “[mjodification of visitation rights is governed by R. C. 3109.05 and the specific rules for determining when a court may modify a custody decree are not equally applicable to modification of visitation rights.” Appleby v. Appleby (1986), 24 Ohio St.3d 39, 24 OBR 81, 492 N.E.2d 831, syllabus. The court explained that “R.C. 3109.04 provides specific guidelines for a trial court to follow in determining whether a prior custody decree should be modified. That section is silent as to rights of visitation. R.C. 3109.05 governs visitation rights.” Id. at 40, 24 OBR at 82, 492 N.E.2d at 833.

Since Appleby was decided, the General Assembly has substantially amended both statutes, but the reasoning used by this court in Appleby still applies. In 1990, the General Assembly, inter alia, amended R.C. 3109.04(B)(1) to add language allowing a trial court to modify a custody decree if it finds that the custodial parent has been denying the other parent access to the children. 143 Ohio Laws, Part IV, 5965 (Am.Sub.H.B. No. 591). In 1991, the General Assembly removed the mention of alimony in R.C. 3109.04(A) and inserted the term “legal separation.” 143 Ohio Laws, Part III, 5461 (Am.Sub.H.B. No. 514). Also, in 1991, the General Assembly overhauled R.C. 3109.04, which included the filing of “shared parenting” plans and the change of the terms “custody and control” to “parental rights and responsibilities.” 143 Ohio Laws, Part I, 111-126 (Am.Sub. S. B. No. 3). In 1993, Am.Sub.S.B. No. 115 amended R.C. 3109.04(D)(1) to refer to plural “parents.” 145 Ohio Laws, Part I, 1045. And in 1994, the General Assembly, inter alia, made changes to the language of R.C. 3109.04(E) governing the modification of shared parenting plans. 145 Ohio Laws, Part III, 5988-5989 (Am.Sub.H.B. No. 415). Although the language used in the statute has changed since this court decided Appleby, the statute continues to govern custody rights, now referred to as “parental rights and responsibilities.” Division (A) sets out the procedures and standards to be used by the trial court when allocating the care of the children. Visitation rights are not addressed in R.C. 3109.04, except as to determining the best interest of the child in order to allocate parental rights and responsibilities.¹ Cf. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, 1162 (The intent of R.C. 3109.04 is “ ‘to provide some stability to the custodial status of the children,’ ” quoting Wyss v. Wyss [1982], 3 Ohio App.3d 412, 416, 3 OBR 479, 483, 445 N.E.2d 1153, 1157.).

R.C. 3109.051, on the other hand, clearly governs decisions as to visitation. In 1990, the General Assembly eliminated any mention of visitation in R.C. 3109.05 and adopted R.C. 3109.051, which specifically and in detail addresses the granting of parental visitation rights. 143 Ohio Laws, Part II, 1964-1970 (Am.Sub.H.B. No. 15). In the following year, the General Assembly substantially amended R.C. 3109.051, and in particular division (A), to add the text regarding mediation reports and that the “order or decree permitting the visitation shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child.” 143 Ohio Laws, Part I, 128-129 (Am.Sub.S.B. No. 3). Thus, since 1990, R.C. 3109.051 is the applicable statute for determining visitation.

In In re Gibson (1991), 61 Ohio St.3d 168, 171, 573 N.E.2d 1074, 1076, we explained the difference between custody and visitation:

“ ‘Visitation’ and ‘custody’ are related but distinct legal concepts. ‘Custody’ resides in the party or parties who have the right to ultimate legal and physical control of a child. ‘Visitation’ resides in a noncustodial party and encompasses that party’s right to visit the child. See former R.C. 3109.05(B) (court may allow ‘parent who is deprived of the care, custody, and control of the children to visit them * * *’). In other words, ‘visitation’ is granted to someone who does not have ‘custody.’ Although a party exercising visitation rights might gain temporary physical control over the child for that purpose, such control does not constitute ‘custody’ because the legal authority to make fundamental decisions about the child’s welfare remains with the custodial party and because the child eventually must be returned to the more permanent setting provided by that party. See Patrick v. Patrick (1962), 17 Wis.2d 434, 438, 117 N.W.2d 256, 259 (party having visitation does ‘not have custody during * * * visits, but only such obligation and authority as are practical necessities during such visits.’); Westrate v. Westrate (App.1985), 124 Wis.2d 244, 248, 369 N.W.2d 165, 168 (‘visitation differs from custody because the noncustodial parent and child do not live together as a single family unit’). * * * ”

R.C. 3109.04 governs agreements allocating “parental rights and responsibilities,” or as we stated in Gibson, “the right to ultimate legal and physical control of a child.” The section, except as noted above, remains silent as to rights of visitation, or “temporary physical control.” (Emphasis added.) Gibson at 171, 573 N.E.2d at 1076. R.C. 3109.051 governs visitation rights. Thus, the rationale of Appleby applies to the statutes today. We hold that modification of visitation rights is governed by R.C. 3109.051, and that the specific rules for determining when a court may modify a custody decree as set forth in R.C. 3109.04 are not equally applicable to modification of visitation rights. Accord Appleby. Moreover, appellee need make no showing that there has been a change in circumstances in order for the court to revise his rights to visitation. Pursuant to R.C. 3109.051(D), however, the trial court shall consider the fifteen factors enumerated therein, and in its sound discretion determine visitation that is in the best interest of the child. See, generally, Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028, 1030; In re Whitaker (1988), 36 Ohio St.3d 213, 217, 522 N.E.2d 563, 568; Appleby, 24 Ohio St.3d at 41, 24 OBR at 82, 492 N.E.2d at 832.

In its order reinstating the visitation schedule as set forth in the original divorce decree, the trial court, without explanation, stated that it found appellee’s objections to the magistrate’s recommended decision to be without merit and appellant’s objections to be well taken. Without further explanation, we must assume that the trial court agreed with the argument that appellant put forth in her objections, which was that appellee did not meet his burden of proving that changing the existing visitation schedule was “in the best interest of the child.” As we held above, when a party requests a change in visitation, the trial court must consider the factors set forth in R.C. 3109.051(D) and then determine visitation that is in the best interest of the child. There is no evidence in the record below to suggest that the trial court did so when it reviewed the magistrate’s proposed decision.

The better practice, as required by R.C. 3109.051(F)(1),² is for the trial court, upon request by a party, to file findings of fact and conclusions of law. We thus affirm the decision of the court of appeals and adopt its order.

Upon remand, the trial court should enter its findings of fact and conclusions of the law as to its decision. These findings and conclusions should take into account the factors set forth in R.C. 3109.051(D). Alternatively, we hereby order that the trial court may vacate its previous order of November 30, 1995, and order a new hearing as to appellee’s motion for a change in visitation.

Judgment affirmed.

Douglas, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., and Cook, J., concur in part and dissent in part.

1 . One factor the court shall consider when determining the best interest of a child is whether “[t]he parent [is] more likely to honor and facilitate visitation and companionship rights approved by the court.” R.C. 3109.04(F)(1)(f).

2 . R.C. 3109.051(F)(1) states:

“If the court, pursuant to division (A) of this section, denies visitation to a parent who is not the residential parent or denies a motion for reasonable companionship or visitation rights filed under division (B) of this section and the parent or movant files a written request for findings of fact and conclusions of law, the court shall state in writing its findings of fact and conclusions of law in accordance with Civil Rule 52.”