In Re Marriage of Barber

457 N.E.2d 360, 8 Ohio App. 3d 372, 8 Ohio B. 485, 1983 Ohio App. LEXIS 10971
CourtOhio Court of Appeals
DecidedJanuary 27, 1983
Docket44793
StatusPublished
Cited by8 cases

This text of 457 N.E.2d 360 (In Re Marriage of Barber) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Barber, 457 N.E.2d 360, 8 Ohio App. 3d 372, 8 Ohio B. 485, 1983 Ohio App. LEXIS 10971 (Ohio Ct. App. 1983).

Opinion

Brogan, J.

Appellant, David Barber, and the appellee, Sharon Barber, obtained a dissolution of their marriage, by a judgment entered in the Court of Common Pleas of Cuyahoga County, and dated September 5, 1979.

Pursuant to the decree of dissolution, the trial court granted custody of the parties’ minor chilld, Brian David, to the ap-pellee with the stipulation that appellee “shall remain in the Cleveland area with said minor child and will only move from the Cleveland area with the husband’s approval.”

On May 21,1981, the appellee moved to modify the initial decree of dissolution so as to allow her to take the minor child out of the Cleveland area to Toronto, Canada. On August 6, 1981, the matter came on for hearing before a referee on the request for a change in the custody order as well as the terms of visitation specified in the prior decree.

The referee made certain specific findings of fact, to wit:

(1) Ever since the marriage of the parties was dissolved, the minor child, born April 27, 1978, has lived exclusively with the wife, subject to the husband’s visitation.

(2) The husband has moved to Wyoming, Michigan near Grand Rapids, Michigan which is approximately three hundred fifty miles from Cleveland, Ohio where he has since married.

(3) The husband has recently returned to Cleveland and is living with his mother and plans to go back to school.

(4) The husband is unemployed and his educational plans have not been finalized.

(5) The wife is engaged to be married and her future husband lives in a suburb of Toronto, Canada. The wife’s fiance testified and impressed the court as a stable individual who is gainfully employed. He has lived his whole life in the Toronto area and is employed as a shop manager of a printing company.

(6)The wife has applied for a visa for herself and her son from the Canadian authorities.

Based on those findings of fact and the conclusions of law drawn therefrom, the referee recommended that appellee be granted the right to remove her minor son from the jurisdiction of the court to live with her and her new husband in the Toronto area. This right is however conditioned upon the appellee certifying to this court that she has made an appearance before the Ontario Provincial Court in Toronto wherein she agrees to abide by any order of this court and agrees to give the Ontario court the right to enforce this court’s orders.

The referee further recommended that because of the age of the parties’ minor child (three years), appellant have visitation at least one week per year at Christmas and two weeks during the summer, and appellee bear the expenses of transporting the child to Cleveland and the return.

The appellant filed objections to the referee’s report alleging that the referee abused his discretion in granting the ap-pellee the right to remove his child from the Cleveland area against the clear provisions of the decree of dissolution. Appellant also contended the evidence was clear the appellant vigorously opposed the removal of the child by the appellee. Appellant also contended in his objections that the order violates the contractual rights of the appellant and the order unnecessarily makes communication with his son difficult and visitation costly and beyond his financial means. Lastly, the appellant objected to the referee’s recommendations asserting that the visitation schedule was inadequate, unfair, and harsh.

*374 On November 30,1981, the trial court adopted the referee’s report in its entirety and granted a judgment for appellee. From that judgment, the appellant has timely appealed, alleging two assignments of error:

“I. The trial court abused its discretion as a matter of law under Sections 3109.04(B) and 3109.04(C) Revised Code by modifying the original custody and visitation decree and allowing appellee to remove the minor child from the Cleveland area without appellant’s approval.
“II. The trial court committed error by modifying the original custody and visitation decree providing for inadequate and harsh visitation arrangements upon .appellant in violation of Sections 3109.04 and 3905.05 [sic] Revised Code.”

R.C. 3109.04 at the time relevant herein stated in pertinent part:

“(B) The court shall not modify a prior custody decree unless it finds, based on facts which have arisen since the prior decree or which 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 interests of the child. * * *
“* * *
“(C) In determining the best interests of a child pursuant to this section, whether on an original award of custody or modification of custody, the court shall consider all relevant factors, including:
“(1) The wishes of the child’s parents regarding his custody;
“(2) The wishes of the child regarding his custody if he is eleven years of age or older;
“(3) The child’s interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child’s best interests;
“(4) The child’s adjustment to his home, school, and community;
“(5) The mental and physical health of all persons involved in the situation.” (Emphasis added.)

Appellant does not wish custody of his minor child, but only that the original custody decree be enforced limiting the appellee to not removing the minor child from the Cleveland area without his approval. Appellant contends the parties entered into a separation agreement wherein the terms under which the wife would receive custody of the minor child were agreed upon, and the court having incorporated the agreement into the dissolution decree, it cannot modify that custody award where such modification is not in the best interests of the child.

At the time of the dissolution, the parties apparently felt they would both continue to live in the Cleveland area. However, one’s residence in today’s society is often a dynamic and changing one. Indeed, in the matter sub judice, the appellant after the dissolution moved to Wyoming, Michigan to secure employment. The appellee became romantically involved with an individual who lived and worked in Toronto, Canada, and indeed became engaged to him.

If the custody decree is enforced, the appellee is obligated to remain in the Cleveland area and hope that her fiance will be willing to leave his long standing job and relocate in Cleveland. We believe this is wholly unrealistic. The trial court’s first obligation in the modification of custody decrees is the best interests of the child. Bastian v. Bastian (App. 1959), 13 O.O. 2d 267. Here, the appellee is attempting to put her life together after a dissolution and has found an individual who is willing to fill the role of her new husband and stepfather.

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Bluebook (online)
457 N.E.2d 360, 8 Ohio App. 3d 372, 8 Ohio B. 485, 1983 Ohio App. LEXIS 10971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-barber-ohioctapp-1983.