Davis v. Flickinger

674 N.E.2d 1159, 77 Ohio St. 3d 415
Ohio Supreme Court·Decided February 12, 1997·No. No. 95-2208·Published·Cited by 1,539 cases

Opinion

Lundberg Stratton, J.

R.C. 3109.04 requires a finding of a “change in circumstances.” Such a determination when made by a trial judge should not be disturbed, absent an abuse of discretion. In determining whether a change in circumstances has occurred so as to warrant a change in custody, a trial judge, as the trier of fact, must be given wide latitude to consider all issues which support such a change, including a change in circumstances because of a child’s age and [417] consequent needs, as well as increased hostility by one parent (and that parent’s spouse) which frustrates cooperation between the parties on visitation issues.

Because we find that the trial judge did not abuse his discretion in finding a change in circumstances sufficient to warrant a change of custody, we reverse the court of appeals and reinstate the order of the trial judge awarding custody to Dwayne Flickinger.

First, we must analyze the meaning and legislative intent of R.C. 3109.04 in requiring a “change in circumstances.” R.C. 3109.04(E)(1)(a) provides:

“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. 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.

“(in) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.” (Emphasis added.)

Lower courts have varied widely in their interpretation of the meaning of “change in circumstances,” some requiring the change to be “substantial.” Perz v. Perz (1993), 85 Ohio App.3d 374, 619 N.E.2d 1094. Chief Justice Moyer, while on the Tenth District Appellate Court, stated: “ ‘The changed conditions, we stress, must be substantiated, continuing, and have a materially adverse effect upon the child. The latter is the paramount issue.’ ” Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 OBR 479, 483, 445 N.E.2d 1153, 1157, quoting Wedren v. Wedren (Aug. 27, 1974), Franklin App. No. 74AP-103, unreported. The Wyss case required the change to be “substantiated” rather than “substantial.” However, R.C. 3109.04 requires only a finding of a “change in circumstances” before a trial court can determine the best interest of the child in considering a change of custody. Nowhere in this statute does the word “substantial” appear.

In this case, the court of appeals clearly took an approach of requiring a “substantial” change. The term “substantial” appears repeatedly throughout its [418] opinion and always in conjunction with “change.” In doing so, the court of appeals appeared to require a higher burden of proof than required by statute. In reality, however, the court of appeals merely seems to substitute its judgment for that of the trial bench, rather than deciding the case on an abuse of discretion standard.

Clearly, there must be a change of circumstances to warrant a change of custody, and the change must be a change of substance, not a slight or inconsequential change. The nomenclature is not the key issue. As the Wyss court aptly stated:

“The clear intent of that statute 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 children 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.” Wyss, 3 Ohio App.3d at 416, 3 OBR at 483, 445 N.E.2d at 1157.

In determining whether a “change” has occurred, we are mindful that custody issues are some of the most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must have wide latitude in considering all the evidence before him or her — including many of the factors in this case — and such a decision must not be reversed absent an abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846.

The standard for abuse of discretion was laid out in the leading case of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, but applied to custody cases in Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus:

“Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O. 481,106 N.E.2d 772, approved and followed.)”

The reason for this standard of review is that the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page. As we stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81, 10 OBR 408, 410-412, 461 N.E.2d 1273, 1276-1277:

“The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge 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. * * *

[419] ii * * *

“ * * * A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility of testimony and evidence must not be encroached upon by a reviewing tribunal, especially to the extent where the appellate court relies on unchallenged, excluded evidence in order to justify its reversal.”

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

674 N.E.2d 1159 (Davis v. Flickinger) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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