[Cite as Knauss v. Unverferth, 2020-Ohio-848.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
LACEY MANKIN NKA KNAUSS, CASE NO. 13-19-12 PLAINTIFF-APPELLEE,
v.
JOHNATHAN UNVERFERTH, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court Juvenile Division Trial Court No. 20970006
Judgment Affirmed
Date of Decision: March 9, 2020
APPEARANCES:
Kurt A. Dauterman for Appellant
Drew J. Mihalik for Appellee Case No. 13-19-12
WILLAMOWSKI, J.
{¶1} Defendant-appellant Johnathan Unverferth (“Unverferth”) brings this
appeal from the judgment of the Court of Common Pleas of Seneca County, Juvenile
Division, denying Unverferth’s motion to modify the parental rights and
responsibilities of the parties. Unverferth claims on appeal that the trial court erred
by not finding a change of circumstances and by finding the modification to not be
in the best interests of the child. For the reasons set forth below, the judgment is
affirmed.
Factual and Procedural Background
{¶2} In 2007, J.M. was born to Unverferth and plaintiff-appellee Lacey
Mankin nka Lacey Knauss (“Knauss”). Doc. 91. In 2014, the parties agreed to a
shared parenting plan. Id. However, on September 28, 2015, that plan was found
to no longer be in the best interests of the child and was modified to name Knauss
as the residential parent. Id. and Doc. 92. On August 31, 2017, Unverferth filed a
motion for contempt alleging that Knauss was not complying with the visitation
order. Doc. 129. On that same day Unverferth filed a motion to modify custody
and support requesting that he be named the residential parent. Doc. 133.
Unverferth claimed that Knauss had engaged in activities designed to undermine his
relationship with J.M. and in violation of the prior court order. Id. The trial court
appointed a guardian ad litem (“GAL”) on September 7, 2017. Doc. 135.
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{¶3} On March 21, 2018, a hearing was held on the contempt motion. Doc.
179. The parties had reached an agreement in which Knauss admitted to the
violation of the order. Id. As a consequence, Unverferth was granted additional
parenting time during the 2018 summer. Id.
{¶4} The GAL filed his report on July 20, 2018. Doc. 190. In the report, the
GAL noted that J.M. had lied about some things and as a result, her summer
parenting time in 2017 did not occur. Id. at 1. The GAL noted that J.M. lied
frequently about many different things and, as a result, was sent to counseling upon
the recommendation of the GAL. Id. at 2. The GAL noted that the counseling was
helping J.M. deal with her struggle to make both parents happy. Id. The GAL also
noted that both parents attempted to influence J.M.’s opinion of the other, but that
both were good with her when they focused on J.M. and not the other parent. Id.
Regarding the home visits, the GAL indicated that Unverferth’s home was
appropriate and that J.M.’s needs were met. Id. The GAL also indicated that after
J.M. had spent part of the summer at Unverferth’s house, she was comfortable and
bonded with her father, stepmother, and half siblings. Id. The GAL noted that
during one of the visits, Unverferth was not present and J.M. was only there with
her stepmother, Leann Unverferth (“Leann”). Id. The GAL described J.M. as
relaxed during that visit. Id. When the GAL mentioned this to J.M., the response
was that J.M. liked Leann and had no issues with her, which was in sharp contrast
to the previous summer. Id. at 3.
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{¶5} The GAL also visited J.M. at Knauss’ home. Id. The GAL noted that
Knauss’ home was appropriate and J.M.’s needs were met. Id. The GAL found
J.M. to be happy and very bonded with Knauss during the first visit. Id. However
during the second visit, J.M. was very emotional and crying. Id. The GAL noted
the following.
[J.M.] clearly loves her Mother and is very bonded with her. It must be noted at Father’s home without him being there, this GAL learned that [J.M.] claims she was told to lie to Children Services about her father and was threatened by Mother if that didn’t happen. This GAL is unsure what to believe because she had never said this before not even at school when she was at a neutral location. It must be noted though, that both parents acknowledge that her lying has improved. If this is true, then this causes the GAL concerns. The entire Children Services investigation was based on [J.M.] making statements that she later recanted.
This entire case has involved [J.M.] telling lies. Therefore, it is very hard for this GAL to know what to believe from [J.M.]. This GAL explained to her early on about the boy who cried wolf and now here we are in the same situation as the children’s story. What can this GAL believe from her. This GAL is certain both parents love [J.M.]. This GAL is sure that when the parents focus on [J.M.] they are good parents. Further, this GAL believes that both environments are safe for [J.M.]. With all that being said, this GAL believes that either parent if granted custody will in front of the child utilize that distinction to show the other and the child that they have power. This is evidenced [from] the statements made to this GAL and to others the GAL interviewed. This is really unfortunate as the only one hurt in this matter is [J.M.]. [J.M.] has expressed to this GAL on multiple occasions that both parents will fight over custody, power, decisions, etc. This GAL believes that where [J.M.] is located determines what she thinks and how she responds. This is why this GAL believes that to have both parents neutralized will be in [J.M.’s] best interest. The recommendation is unorthodox and strange but
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albeit this GAL’s job is to seek the best interest for [J.M.] and the Guardian’s plan accomplishes this objective.
Id. at 3-4. The GAL then recommended that the parties have shared parenting with
J.M. switching homes every Sunday at 7:00 pm. Id. at 4. The GAL noted that J.M.
had indicated she wished to live with both parents and wanted the GAL to decide
for her. Id. According to the GAL, J.M. is “clearly bonded” with both parents, but
the past history indicated that J.M.’s lying behavior was influenced by Knauss. Id.
at 4-5.
{¶6} Hearings were held on the various outstanding motions on July 26,
September 10, and October 15, 2018.1 Doc. 204. At the hearings, the following
pertinent evidence was presented. The GAL testified that if the trial court chose not
to order shared parenting as he recommended in his report, he would recommend
that Unverferth be named the residential parent. Tr. 8. The GAL spoke with J.M.’s
prior teacher, the principal and a school aide. Tr. 12. Those people contacted the
GAL to come speak to them with J.M. present. Id. The issue raised was an
allegation that Knauss was “deliberately taking the tri-fold homework out of the
bookbag before it went over to [Unverferth’s] house for the overnight that was set
up because she was trying to sabotage the relationship between [Unverferth] and
J.M..” Id. This turned out not to be true and J.M. had been removing the folder
1 Besides the modification of custody motion, there were outstanding contempt citations filed by both Knauss and Unverferth. All were denied. Doc. 200-203.
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because she did not want to do the homework and had lied about it. Tr. 13. When
the GAL asked J.M. why she had lied about her stepmother in 2017, she told the
GAL that Knauss had pushed her to tell the lie. Tr. 14. However, both parents had
indicated prior to the hearing that J.M. was no longer lying. Tr. 18. The GAL felt
that counseling was a part of this change. Id. Unverferth requested the counseling,
but Knauss made the appointment when the GAL presented the idea to her. Id.
{¶7} In the Spring of 2018, J.M. had lied and said that Unverferth had been
driving after drinking and Knauss told the GAL about it when a children’s services
investigation was opened. Tr. 21. The GAL spoke with the investigator and told
her about J.M.’s habit of lying and the investigator went to Knauss’ home to speak
with J.M.. Tr. 22. At that time, J.M. admitted that it had not happened. Id. Since
then, the GAL has seen J.M. develop a strong bond with Unverferth. Tr. 24.
{¶8} J.M. has struggled in her language arts, science, and math classes. Tr.
29. Unverferth had mentioned his concern with J.M.’s grades from the beginning
of the GAL’s involvement with the case. Id. The GAL also testified that
Unverferth’s home had more structure and that J.M. was very comfortable with
Leann. Tr. 33. J.M. was very bonded with her father and very comfortable in the
home. Tr. 33-34. J.M. was also very bonded with her mother. Tr. 48. Right before
the hearing, J.M. had told her counselor and the GAL separately that she wanted to
live with her father and attend Cory Rawson schools. Tr. 16. The GAL indicated
that both homes were appropriate for J.M. and that he had no concerns about
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Unverferth’s driving while intoxicated conviction from a few years ago because
everyone he spoke with indicated that Unverferth did not drink any more. Tr. 19.
J.M.’s answer about where she wants to live has consistently changed throughout
the case depending on where she is staying, but she is more relaxed at Unverferth’s
home. Tr. 20. When he last visited at Knauss’ home, J.M. was emotional and cried.
Tr. 21.
{¶9} Tecky Rusk (“Rusk”) testified that she is a mental health counselor in
Findlay and provided services to J.M.. Tr. 51-53. J.M. had been diagnosed with
adjustment disorder with a mixed disturbance of emotions. Tr. 53. J.M. “was
overwhelmed and she had behavioral issues, emotional regulation problems.” Tr.
54. The current treatment plan was developed with the input of both Knauss and
Unverferth. Tr. 61. Unverferth has indicated that he would like to do family
counseling involving both parents and step-parents. Tr. 56. At the session
immediately preceding the hearing, J.M. stated that she wanted “to live with dad
and go to Cory Rawson.” Tr. 57. She also still wanted to see Knauss. Id. J.M. has
a strong bond with both parents and did not want to hurt either one, which caused
her to be tearful in the session while discussing her preferences. Id.
{¶10} In the June 4 session, J.M. told Rusk that J.M. had lied about
Unverferth driving drunk while she was in the car and that her “mother had been
forcing her to make things up about her father to cause problems with the custody
battle.” Tr. 58. Previously J.M. had told her that Unverferth was driving drunk
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while J.M. was in the car, which resulted in Rusk reporting it to Children’s Services.
Tr. 59-60. Rusk testified that she had notified Knauss about the allegation of
Unverferth driving while intoxicated and Knauss told her that Unverferth had a
history with drinking. Tr. 63. After J.M. told Rusk she had lied about that incident,
they discussed how the lying affects relationships and the trust they have. Tr. 60.
{¶11} Jessica Ottney (“Ottney”) identified Exhibit B as a copy of J.M.’s last
grade card. Tr. 71. J.M. had perfect attendance, but had issues with math. Tr. 71-
72. At the beginning of the school year, Ottney only had contact with Knauss, then
started to have contact with both parents. Tr. 72. Her grades in both math and
science ranged from Ds to a B. Tr. 75-76. They improved over the year. Tr. 76.
Ottney held a conference with both parents present and it was stressful. Id. Both
parents then requested that future conferences be held separately. Tr. 77. Ottney
did not notice any difference in homework completion between the homes. Tr. 84.
{¶12} Knauss testified as on cross-examination that the prior shared
parenting agreement was terminated in 2014. Tr. 93. She was not sure how she
learned that J.M. had been lying about Leann regarding the July 2017 incident. Tr.
107. J.M. never told Knauss that it was a lie. Tr. 108. Knauss testified that she had
spoken to J.M. about how the lying was bad. Id. The first indication that J.M. was
telling “big” lies was the lie about Leann. Tr. 110. Outside of that lie, J.M.’s lies
were little ones about household chores or completing homework. Tr. 111. Knauss
only became aware of the lie about the homework being complete when the GAL
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informed her. Id. Knauss just assumed that J.M. had completed it, but failed to turn
it in to the teacher. Id. Knauss did not ask J.M. about the missing assignments. Id.
{¶13} Knauss admitted that although she had a protection order against the
stepmother which did not include Unverferth, she still withheld visitation. Tr. 109.
Knauss was unsure whether she ever communicated with Unverferth about the
denial of the visitations. Id. Knauss admitted that she refused to communicate
directly with Unverferth about the visits throughout the summer of 2017, not even
if the message was sent via text or email. Tr. 110. Knauss admitted that J.M. likes
spending time with her father, but denied that she is close to Leann. Id. Knauss
also admitted that she “used to” have animosity towards Unverferth and Leann. Tr.
112. Knauss admitted that J.M. likes her summer visitation with her father and
Leann, including the trips to Michigan to visit Leann’s family. Tr. 114. Once the
CPO against Leann was filed, Knauss filed a motion to modify custody to reduce
Unverferth’s visitation. Tr. 115. The motion was denied at the end of July, but
Knauss still did not allow any visitation until August 23. Tr. 115-16. Knauss
admitted that Unverferth was the first to suggest counseling and it was started in
October of 2017. Tr. 116-17.
{¶14} Knauss acknowledged that Unverferth had requested his extended
summer visit to start on July 18, 2017. Tr. 126. Knauss filed the CPO request on
July 6, 2017. Id. Knauss admitted that although Unverferth had requested visitation
after the trial court denied her motion to modify visitation, she still refused to allow
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it. Tr. 129. According to Knauss she told J.M. that if she wanted to live with her
father, she just needed to tell everybody. Tr. 131. Knauss testified that she was not
upset about J.M.’s statement to the GAL that she wished to live with Unverferth.
Tr. 137. Knauss admitted that she did not tell the counselor that J.M.’s lying was a
big problem that needed to be addressed when counseling started. Tr. 138. Knauss
also admitted that she shares custody of another child with her ex-husband and they
change every other week, but has not considered it for J.M.. Tr. 162. Over her five
years in school, J.M. has attended four different schools. Tr. 167. She is an active
child who easily makes friends. Id.
{¶15} On examination by her own counsel, Knauss indicated that her
preference would be for J.M. to remain in her household and continue school at
Fostoria. Tr. 140. In addition to J.M., Knauss has an eight year old and twin one
year olds. Tr. 147. The children are bonded with each other and J.M. is also bonded
with Knauss’ husband. Tr. 148. Knauss also testified that she facilitates visitation
between J.M. and her paternal grandmother. Tr. 151. Knauss testified that she
would like to see J.M. stop lying and wants her to continue with counseling. Tr.
156. Knauss indicated that she thought J.M. needs a counselor who is “a little bit
better.” Id. Knauss testified that J.M. was very attached to her friends in the
community and attends church there. Tr. 157. Knauss believes that as J.M. gets
older she should be with her mother so they can talk about issues that will arise as
she gets older. Tr. 158.
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{¶16} Daniel Vekaryasz (“Daniel”) testified that he is Leann’s father, so J.M.
would be his step-granddaughter. Daniel testified that he is familiar with J.M. and
her two half-siblings because they come over to swim in his pool with Unverferth
and Leann during the summer. Tr. 175-76. From 2014 until 2018, J.M. seemed
uneasy around the family, but this year she became comfortable. Tr. 177-79. Since
J.M. was caught lying about Leann, there had been a change in her attitude towards
Unverferth and Leann. Tr. 183. J.M. is more affectionate and does not hesitate to
speak to either of them about anything. Id. Additionally, J.M. has opened up to
Daniel and his wife and they now have a great relationship. Tr. 183-84.
{¶17} Eileen Vekaryasz (“Eileen”) testified that she is Leann’s mother and
J.M. is her step-granddaughter. Tr. 186-87. Eileen testified that in 2017, J.M. was
not happy around her father and would hesitate to answer questions as if she was
waiting for someone to tell her the answer. Tr. 187. When Eileen would ask J.M.
what she wanted about anything, such as what she wanted to eat, J.M. would hesitate
as if waiting for someone to tell her because she did not know. Tr. 187-88. Eileen
sees J.M. almost every time she is with Unverferth. Tr. 188. J.M. makes friends
easily and enjoys playing with the other kids around Eileen’s home. Tr. 189.
Throughout the time Eileen has known J.M., J.M. has told lies. Tr. 190. In the
summer of 2018, Eileen noticed that J.M. seems happier and more confident, she is
excited, and appears more comfortable with herself. Id. J.M. appeared to be content
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when she is at Unverferth’s home. Tr. 191. Also in the last year, Eileen has noticed
that J.M.’s lying is getting better and J.M. is trying to be honest now. Tr. 194.
{¶18} Leann testified that she is J.M.’s stepmother. Tr. 203. When she first
started dating Unverferth in 2013, he and Knauss shared custody of J.M. with them
switching every week. Tr. 204. At that time, J.M. was a typical child with no issues,
but over the next couple of years, J.M.’s lying and attitude became progressively
worse. Tr. 205. She started with lying about simple things and then began lying
about “major things.” Id. The lying reached its peak in 2017. Tr. 206. At that
time, J.M. appeared very withdrawn and did not want to participate in the household.
Id. The worst lie J.M. told was when she told Knauss that Leann had choked her.
Tr. 207. Knauss then obtained an ex parte CPO against Leann on July 6, 2017, but
it was subsequently denied on August 9, 2017, after a full hearing. Tr. 208.
Unverferth’s summer vacation with J.M. was set to begin on July 18, 2017. Tr. 209.
However, Knauss would not allow Unverferth to see J.M. until late August of 2017.
Tr. 209-210. When J.M.’s visits resumed, she continued to lie and be withdrawn.
Tr. 210. J.M. told Leann she had lied to get the CPO soon after the visits resumed.
Tr. 212.
{¶19} Since Spring of 2018, J.M. has done a complete “turnaround” and is
less withdrawn. Tr. 215. J.M. is a much happier child and is now willing to open
up. Tr. 218. The lying has been reduced and she does not have any behavioral
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issues. Id. Leann testified that she now has a “really good relationship” with J.M.
now and that J.M. asks to do things with her. Tr. 219-20.
{¶20} Unverferth testified that since September of 2017, Knauss does not
respond to attempts at communication. Tr. 249. Knauss keeps the texts very
minimal and refuses to meet to discuss being co-parents of J.M.. Id. When
Unverferth picks up J.M., he is required to park at the end of the driveway, sound
the horn, and wait for J.M. to come to the car. Tr. 250. Knauss does not come out
to speak with him. If Unverferth calls Knauss’ phone, J.M. will answer or Knauss
does not answer it. Tr. 253-54.
{¶21} Unverferth testified that he has contacted some of J.M.’s doctors only
to be refused information because he is not listed as the father on her records. Tr.
254-55. Unverferth identified Exhibit E as a report from J.M.’s eye doctor and the
report listed the father as Ben Knauss, J.M.’s stepfather. Tr. 258-59.
{¶22} During the time the CPO was in effect against Leann, Knauss did not
let J.M. come to visits and refused to allow Unverferth to speak with her on the
phone. Tr. 264-65. Despite the fact that the trial court denied the CPO at the
beginning of August 2017, Knauss did not allow visitation to resume until the end
of August 2017, which was after Unverferth had filed a motion to show cause for
denial of visitation. Tr. 268-69. After the CPO was denied, Unverferth attempted
to call and text Knauss about visitation, but received no response. Tr. 269. He also
went to the house to pick up J.M. on his scheduled visitation days, but she never
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came out of the home when he sounded the horn. Id. He would wait for “about 30
minutes” to see if she would come to the car. Id. In addition to sounding the horn,
he would also send Knauss a text that he was there. Tr. 270.
{¶23} On September 10, 2017, Unverferth was scheduled to have J.M. for a
visitation. Tr. 272. Unverferth was the best man in a wedding that day, so he
arranged with Knauss to switch weekends with the following weekend. Id. When
he arrived to pick her up on September 17, 2017, J.M. was not allowed to go. Id.
Similarly for Halloween of 2015, he was supposed to have J.M., but she was not
permitted to go with him. Tr. 273. Knauss did not allow him the scheduled
visitation because Fostoria’s Halloween celebration fell on the same day as the one
in his town. Id. Knauss took this position despite the local Court Rule stating that
it was his year to have J.M. for Halloween. Id. For Halloween 2017, Knauss was
again attempting to refuse his visitation, but the GAL became involved and J.M.
went with Unverferth. Tr. 274.
{¶24} In February of 2018, J.M. alleged that Unverferth had been drinking
and then driving her around. Tr. 274-75. Unverferth received a call from Child
Protective Services, but the claim was eventually dismissed as unsubstantiated. Id.
Prior to the GAL getting involved, J.M. never brought homework to Unverferth’s
home. Tr. 275. J.M. said it was because she was not allowed to bring her book bag
to Unverferth’s home. Tr. 276. During the first quarter of the 2017-2018 school
year, J.M.’s grades were not very good as she was getting Ds in a few subjects. Tr.
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278. Unverferth testified that the GAL got involved and Unverferth was given his
midweek overnight visit which allowed him to help J.M. with her homework. Id.
After the GAL and Unverferth got involved, J.M.’s grades improved. Tr. 279.
Unverferth obtained copies of J.M.’s grade cards from her teacher because Knauss
did not provide them even after he asked. Tr. 280.
{¶25} Unverferth testified that prior to July 6, 2017, J.M.’s behavior with
him and Leann was “spotty”, that J.M. “would be involved one day and then kind
of the next day she wasn’t.” Tr. 288. During summer visitations prior to 2017, the
visits had been “awesome” and enjoyable. Id. Then he did not have summer
visitation in 2017 because Knauss filed the CPO. Id. The visits did not resume until
after the motion to modify parenting was filed. Id. When the visits did resume,
J.M. was “very timid and just kind of timid.” Tr. 289. J.M. did apologize to
Unverferth for the lies which led to the CPO being filed. Tr. 267. J.M.’s behavior
turned around when the GAL became involved and J.M. became like “a different
person”. Tr. 289. Since September of 2017, Unverferth and J.M. have a “great”
relationship. Tr. 290. Over the summer Unverferth enrolled J.M. in cheerleading,
which has six games and practice every Tuesday. Tr. 292. Since school started,
J.M. has not been able to attend a practice because she is with Knauss on Tuesday.
Id. Unverferth testified that he asked to switch his Wednesday visitation to Tuesday
so that he could take J.M. on his time, but Knauss has not responded. Tr. 293. J.M.
only gets to cheer on the games that occur during his visitation. Id. Unverferth
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testified that the custody order provides that parents will take children to extra
curricular activities regardless of when the activity is occurring. Id. According to
Unverferth, J.M. and her half brothers in his home have a good relationship. Tr.
294. Since Spring 2018, J.M. has been trying very hard in school and wants to do
better. Tr. 295
{¶26} Unverferth testified that if J.M. were to live with him, the worst result
would be that she would not see Knauss as much. Tr. 295. J.M. has many friends
around his house and enjoys spending time with them. Tr. 295-96. Unverferth
testified that he pushed for J.M. to be in counseling for a long time, but Knauss did
not agree until the GAL became involved. Tr. 296-97.
{¶27} On cross-examination, Unverferth admitted that he did not know that
Knauss had blocked him from getting information from the school, just presumed
such. Tr. 303. However, he testified that he knew that Knauss had listed her
husband, not him, as J.M.’s father at the doctor’s office. Tr. 304. Unverferth
admitted that he did not ask Knauss for her consent before enrolling J.M. into
cheerleading that had practice on Tuesday nights. Id. Unverferth also admitted that
he had an arrearage in child support due to a change in jobs, but claimed to be
making it up. Tr. 305. According to Unverferth, Knauss allows him two phone
calls with J.M. a week and they last five to ten minutes. Tr. 306. When J.M. is with
him for summer visitation, Knauss gets two phone calls a week for 15 minutes each.
Tr. 307. Unverferth claimed that Knauss restricts his phone calls with J.M.. Id.
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When asked what homework Unverferth helped J.M. with, he could only
specifically recall mathematics. Tr. 309-11. Unverferth admitted that he had not
received a bill for J.M.’s counseling, but did not know if Knauss was paying for it.
Tr. 316
{¶28} During redirect examination, Unverferth testified that Knauss does not
communicate with him about J.M.’s school work, activities, medical issues, or
anything else. Tr. 320-21. Unverferth indicated that he has not had a drink in
approximately three years. Tr. 321. Additionally, he had never been the subject of
allegations of abuse, neglect, or endangering a child. Tr. 322. As to homework,
Unverferth indicated that he did not memorize what J.M.’s homework was, but he
would help her when she had a question. Id. After she completed the homework,
he would check her work. Tr. 323.
{¶29} Knauss testified on direct that J.M. had been attending Fostoria
Intermediate Elementary School. Tr. 342. Although J.M. was having problems
taking tests, Knauss and the teacher were working with J.M. to improve. Tr. 343.
Knauss testified that she loved working with J.M. and loved the educational
program that J.M. attended. Tr. 345. At the school, J.M. has “quite a few friends.”
Tr. 346. J.M. likes to “hang out” with them and they have “sleep overs” a couple
times a year. Id. Knauss testified that J.M. is involved in band and cross-country
at school. Tr. 348. Knauss testified that when she receives the notices of meets, she
shares them with Unverferth, but he has only come to one meet in three years. Tr.
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348-49. J.M. has gone to most meets unless Knauss determined that the weather
was not good for J.M. to be running. Tr. 349. J.M. missed her last meet because
she was with Unverferth and he did not transport her to the meet. Id. For band,
J.M. plays the clarinet. Id. Additionally, J.M. participates in the choir at church.
Tr. 351. J.M. is also hoping to play softball in the spring. Tr. 351-52. She has a
provisional spot on the team. Tr. 352.
{¶30} Knauss admitted that she did not permit visitation with Unverferth
after she obtained the CPO on J.M.’s behalf against Leann. Tr. 353-54. She testified
that it was her intention to protect J.M.. Tr. 354. Knauss testified that she would
follow the orders of the court. Tr. 354-55. Knauss indicated that she was happy
with the local visitation rules and wished to continue as the residential parent. Tr.
355. Knauss testified that after the GAL became involved, she agreed to give
Unverferth additional time that was not ordered by the court. Id. According to
Knauss, Unverferth unilaterally switched the visits back from overnight to just from
five to nine on Wednesday nights because he could not take J.M. to school the next
morning. Tr. 356. Knauss testified that J.M. is okay with the visits as they are. Tr.
357. Additionally, Knauss gives visitation to Cathlene Bugner (“Bugner”), who is
Unverferth’s mother. Tr. 357. Knauss and Bugner get along, so Knauss is fine with
her having visitation with J.M.. Id. J.M. seems to enjoy her time with Bugner, so
Knauss would like it to continue. Tr. 359-60.
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{¶31} Knauss testified that J.M. routinely sees her doctor, her dentist, an eye
doctor, and her allergist. Tr. 360-362. The bills are paid by Medicaid. Tr. 362.
Knauss has no prior convictions for domestic abuse or drug or alcohol abuse. Id.
J.M. started counseling around August of 2017 and has seen three different
counselors. Tr. 366. Knauss testified that she did not specifically consent to Rusk
treating J.M.. Tr. 365-66. Knauss does not wish to continue counseling with Rusk
and is researching other options. Tr. 367. Knauss testified that she did not feel that
Rusk was focused on “what J.M. has as far as issues are concerned.” Id. According
to Knauss, J.M. has issues with stress, anxiety, and lying. Tr. 369. Knauss wants
the lying to stop and does not believe that Rusk focuses on that. Id. Knauss testified
that J.M. and her husband have a bond. Tr. 371. There is also a bond between J.M.
and her brothers. Tr. 372-73.
{¶32} On cross-examination Knauss testified that Unverferth was not a party
to the CPO. Tr. 376. She also admitted that she did not speak to Unverferth about
what happened. Id. Knauss testified that after filing for the CPO, she asked the trial
court to modify the visitation so that Unverferth would not have any visitation with
J.M., but the trial court denied that motion. Tr. 377. Despite the trial court’s denial
of her motion, Knauss still chose to deny visitation as she felt it was necessary to
protect J.M.. Id. Knauss indicated that at her house, she had not seen any
improvement in J.M.’s lying. Id. J.M. usually still lies about her room being clean
or where she left her school laptop. Id. According to Knauss, J.M. began counseling
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before the GAL became involved, but she relied upon the counselor to notify
Unverferth. Tr. 381. The first counselor was Marcia and she met with her twice.
Id. Knauss did not know the second counselor and had never met with that person.
Id. Knauss has only met Rusk one time. Knauss testified that she has tried to contact
Rusk two times, but has not heard anything from her. Id. Knauss indicated that she
only had Rusk’s cell phone number, but no email account. Tr. 381-82.
{¶33} Knauss testified that J.M.’s homework does not go to Unverferth’s
home because it is finished before she leaves. Tr. 383. If J.M. does not get it
finished before she goes, she completes it when she gets back. Id. Knauss admitted
that she never communicates with Leann about anything, and only communicates
with Unverferth because she must. Tr. 384. She admitted that she does not tell him
about unfinished homework or projects when J.M. goes to his home for the
weekend. Id. Knauss testified that she did not give Unverferth the cross-country
schedule because she did not have one until they were both emailed it by the coach.
Tr. 385. Before receiving the schedule from the coach, she did not tell Unverferth
about meets because she did not have a week’s notice. Tr. 388. Knauss admitted
that Unverferth sent her the cheerleading schedule for the activity in Rawson and
admitted that Unverferth attempted to change the weeknight visits to Tuesday as
J.M. had an activity in Rawson on Tuesday and an activity in Fostoria on
Wednesday. Tr. 390-91. No switch occurred. Tr. 391. Knauss admitted that she
did not respond to Unverferth’s request and did not contact him about the activities.
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Tr. 392. Knauss also admitted that she had never gone to watch J.M. cheer. Tr.
395.
{¶34} As to J.M.’s lying, Knauss testified that she could not pinpoint a date
that J.M. started lying on a regular basis. Tr. 409. “It started out small, her saying
that her room is not clean or, you know, what little kids do.” Id. The consequence
of lying was that J.M. would be grounded and lose her electronics. Id. Knauss
testified that J.M. began lying about her homework in the fall of 2017. Tr. 410. The
big lie about Leann occurred in July of 2017. Tr. 411. Before the summer of 2017,
the lying was not as “big” with the lie about Leann being the “biggest one” J.M. had
ever told. Id. Before then, the lies were only little lies. Tr. 412. Knauss testified
that even after she found out J.M. had told such a “big lie”, she did not ground J.M.
or give her any consequence. Id.
{¶35} Bugner testified that Unverferth is her son. Tr. 415. Bugner described
J.M. as her sweet granddaughter and said they have a very close relationship. Tr.
416. When Knauss and Unverferth were together and when they had shared
parenting, Bugner had unrestricted access to J.M.. Tr. 418. Eventually, though,
Bugner had to file for visitation with J.M. because Unverferth would not allow her
visitation during his time. Tr. 419. Bugner testified that Knauss never kept J.M.
away from her and has encouraged their relationship. Tr. 420. Bugner indicated
that she sees J.M. at Knauss’ home and J.M. is comfortable there. Tr. 421.
According to Bugner, Knauss is very truthful and Unverferth is not. Tr. 423, 425.
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Bugner admitted that she told the GAL that she thought shared parenting was best
for J.M.. Tr. 432. Bugner also admitted that she has visitation with J.M. during
Knauss’ time because Knauss agreed to it in a consent entry before the court. Tr.
433. Bugner indicated that the last time she had spoken to Unverferth or seen him
with J.M. was in March of 2017. Tr. 434.
{¶36} In reaching a decision, the magistrate noted that the GAL testified that
in the two weeks prior to the July hearing date, J.M. had informed him that she
wished to live with Unverferth. Doc. 204. After reviewing all of the evidence, the
magistrate determined that there was no change of circumstance that was of
consequence regarding J.M.’s welfare. Id. The magistrate found that the evidence
presented that Knauss had coerced J.M. to lie was not credible and there was no
evidence that J.M. “did not have a penchant for lying in September 28, 2015 when
the original Order was issued.” Id. The magistrate also noted that the change in
J.M.’s wishes alone was insufficient to find a change of circumstances. Id. The
trial court adopted the decision of the magistrate on October 25, 2018, the same day
it was filed by the magistrate. Doc. 205. On November 6, 2018, Unverferth filed
his notice of objections to the magistrate’s decision and requested a transcript. Doc.
206. The objections to the decision were filed on January 29, 2019. Doc. 216.
Unverferth claimed that the magistrate used the wrong standard of review by
requiring the change of circumstances to be substantial or significant, not material
and substantiated. Id. Unverferth noted that Knauss’ denial of visitation was
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grounds for a change of circumstances. Id. Unverferth argues that even after the
trial court denied Knauss’ motion to suspend visitation on August 6, 2017, Knauss
continued to deny Unverferth visits with J.M. until August 23, 2018. Id. Knauss
filed her response to the objections on February 11, 2019. Doc. 217. On February
20, 2019, the trial court overruled the objections of Unverferth. Doc. 219.
Unverferth filed a timely notice of appeal from this judgment and on appeal raises
the following assignments of error. Doc. 220.
First Assignment of Error
The court denied [Unverferth’s] motion for a change of circumstances to warrant a modification of custody pursuant to [R.C. 3109.04(D)(1)(a)].
Second Assignment of Error
Decision was an abuse of discretion and against the manifest weight of the evidence supporting a change of circumstance and a change of custody to Father to protect and serve the best interests of the minor child.
Third Assignment of Error
The benefit from change of custody to Father as residential parent exceeds the low likelihood of harm.
Change of Circumstance
{¶37} In the first assignment of error, Unverferth claims that the trial court
erred by requiring a “significant” change of circumstances rather than one which is
“substantiated, continuing, and [has] a materially adverse effect upon the child.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.
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Modification of a prior decree allocating parental rights is governed by R.C.
3109.04(E)(1)(a), which provides in pertinent part as follows.
(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, the child's 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.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
“Under R.C. 3109.04, a trial court, in determining whether a modification of a
decree allocating parental rights and responsibilities is appropriate, must go through
a two-step analysis.” Southern v Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-
1440, ¶ 17. The first step is to determine whether a change in circumstances has
occurred since the prior decree was issued. Fisher v. Hasenjager, 116 Ohio St.3d
53, 2007–Ohio–5589, 876 N.E.2d 546, ¶ 33, 36. Such a change must be one of
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substance and have a material effect on the child. Southern, supra at ¶ 17. This
does not mean that the change is “substantial” or “quantitatively large”. Brammer
v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453, (3d Dist.).
The second step occurs only after the trial court has found a qualifying change of
circumstances. Southern, supra. at 18. In that case, the trial court then considers
whether modification of the prior decree is in the best interest of the child. Id. When
reviewing a ruling pertaining to the allocation of parental rights, an appellate court
will grant great deference to the decision of the trial court. Id.
{¶38} Here, Unverferth claims that the trial court used the wrong standard of
review when the magistrate required the change to be “significant.” The word
significant does not have a specific legal meaning, but it is commonly defined as
meaningful or notable. The American Heritage Dictionary 1139 (2d Ed. 1985).
Some synonyms of significant include “relevant”, “important”, and “material”.
Since the trial court is required to find that any change is one of substance and has
a material effect on the child, the use of the word significant, as occurred in this
case, was not an error. The magistrate did not alter the standard of review, but rather
just used an equivalent word to express the correct standard of review. For this
reason, the first assignment of error is overruled.
Abuse of Discretion and Manifest Weight of the Evidence
{¶39} Unverferth claims in the second assignment of error that the trial
court’s determination was an abuse of discretion and was against the manifest
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weight of the evidence. “When a trial court’s decision concerning allocation of
parental rights and responsibilities is supported by a substantial amount of credible
and competent evidence, such a decision will not be reversed as being against the
weight of the evidence by a reviewing court.” Malone v. Malone, 3d Dist. Seneca
No. 13-10-39, 2011-Ohio-2096, ¶ 32. “The trial court’s discretion in determining
parental rights must remain within the confines of the relevant statutory provisions.”
Id. “This court will not substitute its judgment for that of the trier of fact when there
is evidence in the record to support the trial court's decision.” Clyborn v. Clyborn,
93 Ohio App.3d 192, 196, 638 N.E.2d 112 (3d Dist. 1994).
{¶40} In this case, the trial court determined that there was no qualifying
change of circumstances. Unverferth argues that the evidence shows there was a
change based upon 1) Knauss’ inconsistent and self-serving testimony, 2) J.M.’s
lying, 3) the denial of visitation; 4) poor academic performance by J.M., and 5)
J.M.’s statement that she wished to live with her father. The trial court reviewed
the findings of the magistrate de novo and the transcript and determined that there
was not a change of circumstances significant enough to warrant a change of
custody. Doc. 219. Specifically, the trial court noted that J.M.’s lying was not a
new factor and was one they knew of at the last hearing. Id. The trial court also
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found that J.M.’s academic performance was more a result of J.M. than of Knauss.2
Id. The trial court determined that the denial of visitation was not sufficient to
justify a change of circumstances. Id. Finally, the trial court noted that the
magistrate was in a better position to judge credibility, and found “no basis not to
trust the trier of fact on matters of credibility and demeanor.” Id. Some credible
evidence was found on each of these issues on both sides of the argument. Since
there was some credible evidence that supported the trial court’s determination, this
court cannot substitute its judgment for that of the trial court. For that reason, we
do not find the trial court’s judgment to be an abuse of discretion or against the
manifest weight of the evidence. The second assignment of error is overruled.
Best Interest of the Child
{¶41} Finally, Unverferth claims that the trial court should have found that
the benefit of a change of custody exceeded the low likelihood of harm. To reach
this argument, the trial court would have first made a preliminary finding of a
change of circumstances per R.C. 3109.04(E)(1)(a). Vent v. Vent, 3d Dist. Wyandot
No. 16-12-05, 2012-Ohio-5946, ¶ 31. “Having affirmed the trial court’s threshold
decision finding no change in circumstances, there is no need to examine whether
2 Although the statute does provide that a change in the circumstances of the child may be the basis for finding a change of circumstance, the change must still be a material change. The trial court did not find that Jordyn’s struggles in school were a material change.
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or not a change of custody would be in the [child’s] best interests.” Id. Thus, the
third assignment of error is overruled.
{¶42} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Seneca County, Juvenile
Division, is affirmed.
SHAW, P.J. and PRESTON, J., concur.
/hls
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