E.T.P. v. H.R.P.

Opinion

[Cite as E.T.P. v. H.R.P., 2026-Ohio-2816.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

E.T.P., :

Appellant, :

v. : No. 115466

H.R.P., :

Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 23, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division Case No. DR-15-359951

Appearances:

Stafford Cruz Law Company and Kelley R. Tauring, for appellant.

Nejame Law and Ryan J. Vescio, for appellee.

ANITA LASTER MAYS, J.:

Plaintiff-appellant E.T.P. (“Father”) appeals from the judgment of the

Cuyahoga County Court of Common Pleas, Domestic Relations Division, that

overruled his objections to the magistrate’s decision, granted the motion of defendant-appellee H.R.P. (“Mother”) to modify the allocation of parental rights

and responsibilities, and designated Mother the residential parent and legal

custodian of the parties’ minor child. Father raises three assignments of error,

challenging the trial court’s subject-matter jurisdiction, its refusal to disqualify

Mother’s counsel, and its modification of the prior custody decree. For the reasons

that follow, we affirm the judgment.

I. Factual and Procedural History

Father and Mother were married on December 12, 2010, and one

child was born of the marriage in 2011. The parties were divorced by a judgment

entry of divorce journalized May 25, 2016, which adopted a shared-parenting plan

and designated Mother the residential parent for school-placement purposes.

The parties’ post-decree litigation has been protracted and

continuous. In 2017 and 2018, Mother filed successive motions to terminate the

shared-parenting plan and to relocate the child to Florida. Those motions were tried

before a magistrate over 11 days between October 2018 and February 2019. On

April 10, 2019, the magistrate issued a decision terminating the shared-parenting

plan, denying Mother’s request to be designated residential parent, and

recommending that Father be designated the residential parent and legal custodian.

By judgment entry journalized December 13, 2019, the trial court overruled

Mother’s objections in relevant part and designated Father as residential parent and

legal custodian (the “2019 decree”). Mother appealed. This court affirmed the 2019 decree, holding that

the trial court did not abuse its discretion in designating Father the sole residential

parent and legal custodian or in terminating the shared-parenting plan. See Perrin

v. Perrin, 2021-Ohio-2581 (8th Dist.) (the “prior appeal”).

Mother filed a motion to modify on November 29, 2021, that she

voluntarily dismissed on March 23, 2022. On July 13, 2022, the parties entered an

agreed judgment entry that adjusted the child’s summer, holiday, communication,

and exchange schedule (the “2022 AJE”). The 2022 AJE did not disturb Father’s

designation as residential parent and legal custodian.

Attorney Ryan J. Vescio (“Vescio”), Mother’s husband and the child’s

stepfather, first appeared on his own behalf in January 2022 in connection with a

subpoena and filed an amended notice of appearance as co-counsel for Mother on

June 7, 2022. He thereafter filed numerous pleadings and appeared at numerous

hearings on Mother’s behalf.

On March 29, 2024, Mother filed the motion to modify the parenting

order that underlies this appeal, alleging, among other things, that the child’s needs

had evolved as he matured and that Father had become increasingly unable to meet

the child’s emotional needs. Mother did not file a parenting-proceeding affidavit

under R.C. 3127.23 with the motion. The trial court appointed a guardian ad litem

(“GAL”) on May 23, 2024.

On November 27, 2024, the business day before trial, Father moved

to disqualify Vescio as Mother’s counsel, asserting a conflict of interest under Prof.Cond.R. 1.7 and Vescio’s status as a necessary fact witness under

Prof.Cond.R. 3.7. The trial court denied the motion by entry dated December 3,

2024.

Trial proceeded before the magistrate on December 3 and 5, 2024. At

the outset, Father orally moved to dismiss for lack of subject-matter jurisdiction

based on Mother’s failure to file the R.C. 3127.23 affidavit. The magistrate denied

the motion, observing that the court had presided over the matter for many years

and knew where the child had resided. The magistrate heard testimony from Father,

Mother, the GAL, and other witnesses.

The magistrate issued a decision on April 4, 2025, granting Mother’s

motion, designating Mother the residential parent and legal custodian, and

awarding Father the visitation schedule previously allocated to Mother. Father filed

objections and supplemental objections. By judgment entry journalized July 25,

2025, the trial court overruled Father’s objections and adopted the magistrate’s

decision in full. Father timely appealed and assigned the following assignments of

error:

1. The trial court committed reversible error when it denied E.P.’s Motion to Dismiss, granted H.V.’s Motion to Modify, and overruled the father’s objections, absent subject-matter jurisdiction.

2. The trial court erred and abused its discretion by failing to disqualify H.V.’s husband from representing her as Counsel of Record under the Rules of Professional Conduct.

3. The trial court erred as a matter of law and abused its discretion by modifying the allocation of parental rights and responsibilities and designating H.V. as the residential parent and legal custodian. II. Law and Analysis

A. Continuing Subject-Matter Jurisdiction

In his first assignment of error, Father contends that Mother’s failure

to file the parenting-proceeding affidavit required by R.C. 3127.23 deprived the trial

court of subject-matter jurisdiction, rendering the July 25, 2025 judgment void ab

initio.

Whether a court possesses subject-matter jurisdiction is a question of

law that we review de novo. Martindale v. Martindale, 2016-Ohio-524, ¶ 27 (4th

Dist.). Under that standard, we afford no deference to the trial court’s determination

and independently review the record to determine whether the judgment is

appropriate. Klarfeld v. Vestige Group, L.L.C., 2025-Ohio-2678, ¶ 9 (8th Dist.).

The Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”), codified in R.C. Ch. 3127, defines a court’s subject-matter jurisdiction

to make a child-custody determination. Mireles v. Veronie, 2020-Ohio-3078, ¶ 6

(9th Dist.). The UCCJEA sets up clear rules regarding subject-matter jurisdiction to

determine child custody and visitation matters. Dorazio v. Dorazio, 2016-Ohio-713,

¶ 10 (8th Dist.). R.C. 3127.15 furnishes the exclusive jurisdictional basis for an Ohio

court to make such a determination. In re M.R.J., 2019-Ohio-2755, ¶ 17 (4th Dist.);

R.C. 3127.15(B). The parenting-proceeding affidavit in R.C. 3127.23 is the

mechanism for putting the jurisdictional facts (residences, other proceedings, etc.)

before the court so it can decide if R.C. 3127.15 is satisfied. R.C. 3127.23(A) provides: Each party in a child custody proceeding, in the party’s first pleading or in an affidavit attached to that pleading, shall give information if reasonably ascertainable under oath as to the child’s present address or whereabouts, the places where the child has lived within the last five years, and the name and present address of each person with whom the child has lived during that period.

Father correctly observes that the word “shall” is ordinarily construed

as mandatory. Gilreath v. Dept. of Job & Family Servs., 2024-Ohio-103, ¶ 43. He

conflates, however, two distinct requirements. R.C. 3127.15 confers jurisdiction;

R.C. 3127.23 prescribes the affidavit by which a movant ordinarily demonstrates the

jurisdictional facts. The failure to file that affidavit does not, alone, divest a court of

jurisdiction it otherwise possesses under R.C. 3127.15. “It is only when the trial

court lacks subject-matter jurisdiction that its judgment is void; lack of jurisdiction

over the particular case merely renders the judgment voidable.” In re K.K., 2022-

Ohio-3888, ¶ 9. Because the domestic relations court’s subject-matter jurisdiction

over custody proceedings derives from R.C. 3127.15 — and that jurisdiction is

undisputed here — any deficiency in the R.C. 3127.23 affidavit goes, at most, to the

court’s exercise of jurisdiction over this particular case and does not render the

judgment void ab initio as Father contends.

The Supreme Court of Ohio has long refused to treat the affidavit

requirement as a rigid, mechanical rule. In In re Complaint for Writ of Habeas

Corpus for Goeller, 2004-Ohio-5579, the Court explained that the requirement that

the affidavit accompany a party’s first pleading “has been relaxed to allow amended

pleadings or subsequent filings to include the affidavit information,” and cautioned that a mechanistic interpretation could render the State’s custody statutes a nullity.

Id. at ¶ 10-12, citing In re Palmer, 12 Ohio St.3d 194 (1984).

This court applied that principle in In re K.B., 2015-Ohio-4088 (8th

Dist.). There, as here, the parties had previously been before the court, which was

“well aware of where and with whom the child had been living” and aware of the

prior proceedings. Id. at ¶ 18. We held that, even without the affidavit, the trial

court was able to ascertain that it had jurisdiction and that the absence of the

affidavit did not divest the domestic relations court of jurisdiction. Id.; see also

Sumerford v. Sumerford, 2012-Ohio-1842, ¶ 16 (10th Dist.).

The record here presents an even stronger case for jurisdiction than

In re K.B. The same court has presided over this family’s custody litigation

continuously since 2017, conducting numerous hearings, an 11-day trial, and a prior

round of appellate-tested proceedings concerning this very child. The court was

intimately familiar with the child’s residential history and with the absence of any

competing proceeding in another jurisdiction. The purpose the R.C. 3127.23

affidavit serves, to apprise the court of facts bearing on home-state jurisdiction and

the existence of competing proceedings was, therefore, fully satisfied here, and the

record demonstrated the court’s continuing jurisdiction under R.C. 3127.16.

Father’s reliance on Frew v. Frew, 2008-Ohio-4203 (5th Dist.), is

misplaced. Frew affirmed the dismissal of an initial dissolution proceeding where

the parties failed to file the required affidavits within a reasonable time after being

notified of the deficiency. Id. at ¶ 12. It did not hold that the affidavit is an independent jurisdictional prerequisite that no other record can satisfy; it addressed

a want-of-prosecution dismissal in a newly filed action in which the court had no

independent familiarity with the child’s circumstances. The present case is

inapposite. Father’s argument that the trial court improperly shifted the burden of

proof likewise fails. The court did not require Father to disprove jurisdiction;

rather, R.C. 3127.23(B), independently authorized the court to confirm subject-

matter jurisdiction through an alternative method to the affidavit.

Because the trial court possessed subject-matter jurisdiction under

R.C. 3127.15, notwithstanding the absence of an R.C. 3127.23 affidavit, the July 25,

2025 judgment is not void.

Accordingly, Father’s first assignment of error is overruled.

B. Motion to Disqualify Counsel

Father next contends that the trial court abused its discretion by

declining to disqualify Vescio under Prof.Cond.R. 1.7 and 3.7.

We review a trial court’s ruling on a motion to disqualify counsel for

an abuse of discretion. Sholar v. Sholar, 2025-Ohio-4883, ¶ 14 (2d Dist.). An abuse

of discretion occurs where a court applies the wrong legal standard, misapplies the

correct standard, or relies on clearly erroneous findings of fact. R.E.S. v. M.J.M.,

2025-Ohio-546, ¶ 18 (8th Dist.). Disqualification is a drastic measure that should

not be imposed unless necessary, and it interferes with a party’s right to counsel of

choice. Quiros v. Morales, 2007-Ohio-5442, ¶ 15 (8th Dist.); Kala v. Aluminum

Smelting & Refining Co., 1998-Ohio-439. The trial court denied the motion on two independent grounds: it was

untimely and Father failed to show that Vescio was a necessary witness whose

testimony was unobtainable from other sources. Either ground, if sustainable,

supports the court’s exercise of discretion.

As to timeliness, a motion to disqualify should be raised soon after the

onset of litigation, or at least within a reasonable time once the facts are known, and

undue delay may operate as a waiver where it results in serious prejudice or

substantial hardship to the opposing party. Stanley v. Bobeck, 2009-Ohio-5696,

¶ 9-10 (8th Dist.). Vescio appeared as co-counsel in June 2022 and thereafter filed

numerous pleadings and appeared at numerous hearings, all while Father was

represented by a succession of counsel. Father did not move to disqualify until the

business day before trial, more than two years later. The trial court reasonably

determined that disqualifying counsel on the eve of trial would have imposed

substantial hardship and created delays inconsistent with the child’s best interest in

a prompt resolution.

As to necessity, Prof.Cond.R. 3.7 prohibits a lawyer from acting as an

advocate at a trial in which the lawyer is likely to be a necessary witness, subject to

enumerated exceptions. A “necessary witness” is one whose testimony is both

admissible and unobtainable through other trial witnesses; testimony that is merely

relevant, or even highly useful, is not necessarily “necessary.” Gonzalez-Estrada v.

Glancy, 2017-Ohio-538, ¶ 12 (8th Dist.); Goebel v. Hopkins, 2024-Ohio-194, ¶ 18

(12th Dist.). A party’s mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification, even if counsel could give

relevant testimony. Gonzalez-Estrada at ¶ 12.

Father did not carry that burden. Although he asserted that Vescio

possessed firsthand knowledge of the child’s circumstances in Mother’s home and

listed Vescio as a potential witness, neither his motion nor his brief identified any

admissible testimony obtainable only from Vescio. As the trial court observed, the

same matters were available from Mother, the GAL, and the parenting coordinator.

That Vescio testified in the 2018-2019 proceedings does not alter the analysis; no

such testimony was offered or admitted at the 2024 trial.

Father’s argument under Prof.Cond.R. 1.7 fares no better. The

conflict he describes that Vescio’s marital and financial interests prevent him from

rendering detached advice, is, in the first instance, a conflict personal to the client

whom the rule protects. Mother, the affected client, did not seek Vescio’s removal.

Although the trial court retains inherent authority to disqualify counsel to protect

the integrity of its proceedings, the trial court reasonably determined that no such

intervention was warranted here, particularly given the availability of the relevant

testimony from other witnesses and the untimeliness of the motion.

On this record, we cannot say the trial court applied an incorrect legal

standard or relied on clearly erroneous findings of fact.

The second assignment of error is overruled. C. Modification of the Allocation of Parental Rights and Responsibilities

In his final assignment of error, Father contends that the trial court

abused its discretion in modifying custody because the record establishes no change

in circumstances and because the court failed to make the findings required by

R.C. 3109.04(E)(1)(a).

We review a custody-modification decision for an abuse of discretion.

T.H. v. N.H., 2021-Ohio-217, ¶ 46 (10th Dist.). An abuse of discretion connotes an

attitude that is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). This deferential standard is especially

appropriate in custody matters, where the trial court is best positioned to weigh the

evidence and judge the credibility of the witnesses. Davis v. Flickinger, 77 Ohio

St.3d 415 (1997).

R.C. 3109.04(E)(1)(a) provides that a court shall not modify a prior

decree allocating parental rights 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 or a parent, and that

modification is necessary to serve the child’s best interest. Where, as here, neither

a residential parent’s agreement nor integration with consent applies, the court

must further find that “[t]he 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)(iii). A modification thus requires findings that (1) a change

in circumstances has occurred; (2) modification serves the child’s best interest; and (3) the benefits of the change outweigh any harm, and the record must adequately

support each. In re N.J.V., 2025-Ohio-375, ¶ 22 (8th Dist.); Craig v. Athey, 2025-

Ohio-336, ¶ 18 (7th Dist.).

A threshold dispute concerns the proper baseline against which

change is measured. Father urges that the relevant baseline is the July 2022 AJE;

on that premise, he argues, the child’s wish to relocate to Florida cannot be a

“change” because it predates the 2022 AJE. We reject the premise. For purposes of

R.C. 3109.04(E)(1), the “prior decree” is the decree that actually allocated parental

rights. In re J.C., 2019-Ohio-107, ¶ 20, 28 (8th Dist.). The 2022 AJE adjusted only

parenting-time logistics and did not reallocate residential-parent status, and

Mother’s November 2021 motion was voluntarily dismissed under Civ.R. 41(A)

without any adjudication on the merits. The decree that allocated parental rights,

and thus the baseline, is the 2019 decree.

Measured against the 2019 decree, the record supports the trial

court’s finding of a change in circumstances. At the time of the 2019 proceedings,

the child was seven and the then GAL and a forensic evaluator reported that the

child did not want to move to Florida. By the 2024 trial, the child was 13 and,

according to the GAL’s testimony, consistently and emphatically expressed a

preference to live with Mother in Florida, where he felt more supported and

connected. This court has recognized that a child’s maturation from early childhood

into adolescence may itself constitute a sufficient change of circumstances, In re J.C.

at ¶ 28, citing Perz v. Perz, 85 Ohio App.3d 374 (6th Dist. 1985), and the Supreme Court has observed that even a modest change in age, combined with deterioration

in the parent-child relationship, may suffice. Davis, 77 Ohio St.3d at 416-417. The

record reflects both.

Father places great weight on the GAL’s affirmative answer on cross-

examination that what had “changed” since 2022 was the child’s “age.” Read in

context, that testimony does not undermine the existence of a change in

circumstances; it pinpoints what is driving it. The GAL elaborated that the child’s

needs had evolved with adolescence, that the issues facing a 13-year-old differ

substantially from those facing a ten-year-old, and that the child’s emotional needs

were not being met in Father’s home. The trial court was entitled to credit that

testimony and the corroborating testimony of Mother and another witness. That

Father offered a markedly different account of his relationship with the child

presented a credibility question for the trier of fact, not a basis for reversal. Davis

at 418.

Father contends that, even assuming a change in circumstances, the

trial court failed to make the finding required by R.C. 3109.04(E)(1)(a)(iii) — that

the harm of changing the child’s environment is outweighed by its advantages. The

statute requires that finding, and an entry devoid of any such determination would

be deficient. In re N.J.V. at ¶ 22. On this record, however, we cannot say the

requisite determination is absent. The trial court adopted in full a magistrate’s

decision rendered after a two-day trial. Change of Circumstances

The record reflects that circumstances had materially changed since

the 2019 decree. At the time of the earlier proceedings, the child did not want to

move to Florida, whereas by the time of the present motion the child had entered

adolescence, started middle school, turned 13, and developed new emotional and

social needs. The child had become increasingly isolated and distant from Father,

whose testimony describing the nature of his relationship with the child was the

opposite of the child’s disclosures to the GAL and the child’s mental-health

providers. Moreover, the GAL’s recommendation had changed to support the

child’s relocation and placement with Mother. These circumstances reflect a

materially different situation from the one considered in 2019.

Best Interest of the Child

In assessing best interest, the trial court credited evidence that the

child was experiencing loneliness, emotional isolation, and a lack of meaningful

support in Ohio. It contrasted those circumstances with the child’s stronger sense

of belonging, emotional support, and connection with Mother and her family in

Florida. The court also gave weight to the GAL’s updated recommendation and the

child’s expressed wishes, concluding that the child’s best interests would be served

by granting the motion to modify custody.

Harm Outweighed by Benefit of Change

The record supports a finding that the benefits of a change in custody

outweighed any harm associated with changing the child’s residential parent and environment. Although a custody change would necessarily involve disruption, the

advantages of placing the child in a more supportive and emotionally appropriate

environment with Mother exceeded the likely harm from the transition. In reaching

that conclusion, the court relied on the child’s developmental needs, his

deteriorating emotional condition in Ohio, and the GAL’s revised recommendation

in favor of modification.

Because the record supports the trial court’s findings, we cannot say

that the court’s decision was unreasonable, arbitrary, or unconscionable.

Accordingly, Father’s third assignment of error is overruled.

III. Conclusion

We note that the record does not contain an R.C. 3127.23(A)

parenting-proceeding affidavit filed in connection with Mother’s motion to modify

custody. As discussed above, this omission does not divest the domestic relations

court of subject-matter jurisdiction it otherwise possesses under R.C. 3127.15 and

the court’s extensive familiarity with this family independently satisfies the

informational purpose of the affidavit.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, domestic relations division, to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

__________________________ ANITA LASTER MAYS, JUDGE

MICHELLE J. SHEEHAN, A.J., and DEENA R. CALABRESE, J., CONCUR