Gardini v. Moyer

575 N.E.2d 423, 61 Ohio St. 3d 479, 1991 Ohio LEXIS 2086

• Court: Ohio Supreme Court
• Decided: August 21, 1991
• Docket: No. 90-764
• Status: Published

Opinions

Holmes, J.

The central issues presented in this case are whether former R.C. 3109.04(B)(1)(c) (now found in R.C. 3109.04[E][l][a][iii]) provides for a modification of custody where the child’s physical health or his mental, moral, or emotional development will be endangered by an environmental condition presented by the custodial parent. Second, we must determine, upon all facts and circumstances presented to the trial court in this matter, whether or not the trial court abused its discretion in its order changing the custody of these children. For the reasons that follow, we answer the first query in the affirmative and the second in the negative.

Appellant asserts that to warrant a change of custody, former R.C. 3109.-04(B)(1)(c) does not require actual present harm inflicted upon a child from his present environment. We agree.

Former R.C. 3109.04(B) provided in pertinent part:

“(1) * * * [T]he court shall not modify a prior custody decree 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] his custodian * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian * * * designated by the prior decree, unless one of the following applies:

<< * * *

“(c) The child’s present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”³

In construing R.C. 3109.04, this court has previously stated with respect to a modification of custody that “[t]here is no question that the paramount and overriding concern of the * * * statute is the best interests of the child, or in this case children, and that it is the court’s function to see that the children’s best interests are protected.” Birch v. Birch (1984), 11 Ohio St.3d 85, 87, 11 OBR 327, 330, 463 N.E.2d 1254, 1257; see, also, Boyer v. Boyer (1976), 46 Ohio St.2d 83, 87, 75 O.O.2d 156, 158, 346 N.E.2d 286, 288. Consistent with the foregoing approach and a reasonable construction of the statute, we do not read former R.C. 3109.04(B)(1)(c) so narrowly as to require an actual present danger to the child (or children) in his or her present environment in order to establish grounds for a modification of custody. Instead, all that is required is a showing made by the party seeking a modification of custody that some action by the custodial parent presently endangers the child or, with a reasonable degree of certainty, will manifest itself and endanger the child in the future if the child is not removed from his or her present environment immediately. It would be illogical to require the noncustodial party to prove an actual present danger to the child where it is beyond speculation that the child’s physical health, mental, moral, or emotional development will be adversely affected in the future by the present actions of the custodial parent.

In our inquiry in this case we are cognizant that “[i]n proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by [the] printed record.” Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 O.O. 481, 483, 106 N.E.2d 772, 774. Moreover, it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses. Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 17 O.O.3d 58, 406 N.E.2d 1121. Thus, “[w]here 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.” Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus.

In the case sub judice, our careful review of the record reveals that there was a substantial amount of credible and competent evidence to show that the children are endangered both by their present environment and the inevitable effects of their present environment upon their future development. Therefore, we find that there was a sufficient quantum of evidence to support the trial court’s award of custody to appellant.

We wish to make it clear that we need not address, and do not address, the merits of the parties’ arguments as to the propriety of home schooling. Rather, we let stand the decision of the trial court that, under the circumstances of this case, it was inappropriate to place the Moyer children in a home schooling program.

Accordingly, for the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the trial court’s decision.

Judgment reversed.

Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ., concur. Wright, J., dissents.

3 . Effective April 12, 1990, former R.C. 3109.04(B)(1)(c) was amended and the clause containing the term “present environment” was deleted. As amended and renumbered, R.C. 3109.-04(E)(l)(a)(iii) provides: “The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”