[Cite as L.G. v. R.G., 2026-Ohio-258.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
L.G., :
Plaintiff-Appellant, : No. 115041 v. :
R.G., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 29, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-15-359284
Appearances:
Rosenthal | Lane, L.L.C., Scott S. Rosenthal, and Alarra S. Jordan, for appellant.
McCarthy, Lebit, Crystal & Liffman Co., L.P.A., Richard A. Rabb, and Jenna C. Sholk, for appellee.
MARY J. BOYLE, P.J.:
Plaintiff-appellant L.G. (“Mother”) appeals from the Cuyahoga
County Domestic Relations Court’s post-decree judgment adopting the magistrate’s decision modifying parental rights and responsibilities and support and ordering
Mother to pay defendant-appellee R.G.’s (“Father”) attorney fees. For the reasons
that follow, we affirm.
I. Facts and Procedural History
Mother and Father were married in Israel in May 2002 and had six
children together.1 In February 2017, the parties were divorced. At the time of their
divorce, they resided in University Heights, Ohio. In their final divorce decree,
Mother was designated sole custodian and residential parent of all six children with
visitation allotted to Father.
In 2019, the parenting order was modified because Father planned to
move to Texas. The parties entered into a shared parenting plan wherein custody of
the oldest child went to Father, and Mother had visitation, while the five younger
children remained with Mother and Father had visitation four weeks a year in the
city where Mother resided. The parties also agreed that Mother could relocate to
any location she desired, including to Israel, with 30 days advanced notice to Father.
(Agreed J.E., Nov. 18, 2019.)
Following the modification, Father had some visitation with his
children but no overnight visits. In early May 2022, Father contacted Mother to
schedule his end-of-June visitation with the minor children. Mother, however,
1 N.G. (emancipated in 2021), R.G. (emancipated in 2022), S.G. (emancipated in
2025, during these proceedings), R.G. (born in 2008), M.G. (born in 2012), and A.G. (born in 2016). The four youngest are the subject of this appeal and will be referred to as the “middle two children,” the “younger two children,” or collectively as the “minor children.” instructed Father to cancel his trip because it interfered with her trip to Israel with
the children. Mother did not advise Father when they were leaving on their trip.
Then on Tuesday, May 31, 2022, Father learned through an acquaintance that one
of his children told friends and school staff that she and her family were spending
the rest of the year in Israel. That same day, Father contacted Mother via Our Family
Wizard (“OFW”) to confirm her plans and inquire how he could contact the children
while they were out of the country.2 Because Mother did not respond in a timely
fashion, Father filed a motion for an ex parte temporary restraining order (“TRO”)
to prohibit Mother from leaving with the children. Additionally, he filed a motion
requesting the court to order Mother return the children to the United States. Both
motions were filed on Friday, June 3, 2022.
On Monday, June 6, 2022, the trial court granted the TRO restraining
Mother from removing the minor children from the jurisdiction of the court without
prior consent of Father. Mother, however, had already departed for Israel with the
children where they have remained throughout this litigation.
On August 15, 2022, despite the TRO being granted, Mother filed a
notice of intent to relocate the children to Israel effective August 27, 2022. Father
then filed on September 12, 2022, a motion to modify parental rights and
responsibilities, or in the alternative, motion to modify companionship schedule.
The motion was set for trial on October 21, 2022. Because the parties requested a
2 OFW is a coparenting platform used by parents in a divorce. guardian ad litem (“GAL”) be appointed for the minor children, the trial date was
rescheduled to June 2023.
Throughout the litigation, numerous motions were filed by both
parties, including Mother’s motion to show cause and motion for attorney fees,
alleging Father failed to comply with certain financial obligations, and Father’s
motion for attorney fees and motion to modify child support and terminate spousal
support.
The June trial date was again continued at the request of the parties
because the GAL was unable to obtain medical and academic records for the minor
children. On the rescheduled trial date, Mother filed a motion to dismiss Father’s
motion to modify custody alleging that the trial court lacked subject-matter
jurisdiction because none of the parties reside in Ohio. Thereafter, Father filed a
response and on August 28, 2023, the court held a hearing on Mother’s motion.
On September 18, 2023, the magistrate issued a decision denying
Mother’s motion to dismiss for lack of subject-matter jurisdiction. Mother filed
timely objections. Father filed a brief in opposition to Mother’s objections. The trial
court overruled Mother’s objections on November 22, 2023, and adopted the
magistrate’s decision on November 27, 2023.
The next day, trial ensued via Zoom before the magistrate on the
following motions: Father’s motion to return children to the United States, Father’s
motion to modify parental rights, Father’s motion for attorney fees, Father’s motion
to modify support, and Father’s motion to apportion GAL fees (filed June 22, 2023). In addition, the court heard Mother’s motion to apportion GAL fees (filed July 25,
2023) and Mother’s motion for attorney fees (filed July 28, 2023). However,
Mother’s motion to show cause and motion for attorney fees filed in November 2022
were not before the court.
At trial, Mother, Father, and the GAL testified. Additionally, the
parties’ attorneys testified as to their fees. At the outset we note that Mother’s
testimony was tedious and often nonsensical. The record also reflects that she was
deliberately evasive, rambled incessantly, feigned ignorance, and had to be
instructed repeatedly and continuously by the magistrate to answer the questions
posed. Also, when Father’s attorney complained about Mother’s theatrics
throughout trial, the court noted for the record that Mother, although muted, was
“chirping the entire time. . . . [I]t’s been going on the entire proceeding.” (Nov. 29,
2023, tr. 98.)
That being said, Mother testified that she departed for Israel with the
children on “May 31st. Maybe June 1[, 2022.]” (Nov. 28, 2023, tr. 29.) She
explained that they went to Israel for a family wedding and decided to stay for the
summer. She admitted that Father sent her messages via OFW on May 31, inquiring
as to whether she went to Israel, how long she planned to stay, and how he could
contact the children. She testified that she did not respond until June 7, 2022, when
she viewed the messages. She admitted that she did not answer any of his questions
and did not provide a way to contact the children. Nevertheless, she repeatedly
blamed Father for the lack of communication with the children. Mother also testified that she would only check OFW occasionally to
respond to Father’s messages. When questioned, she replied that she could not
remember if she contacted Father after the terrorist group Hamas attacked Israel on
October 7, 2023, to let Father know the children were safe. She stated that she
rarely, if ever, initiated contact with Father. Mother made it clear that she did not
think she should be required to facilitate a relationship between Father and the
children. In addition, Mother felt that Father could determine which Israeli schools
the children were enrolled in and contact the schools directly. She also felt Father
could ascertain which of the four medical carriers provided care for his children,
despite Father not having the children’s Israeli identification numbers.
When questioned about the minor children’s mental-health
diagnoses, Mother denied any of the children had mental-health challenges. In
addition, she did not feel follow-up treatment was necessary.
Regarding her notice of intent to relocate that was filed August 15,
2022, Mother testified that Father was aware in advance that she planned to relocate
to Israel with the children. However, she also testified that she did not make the
decision to remain in Israel until August or September when she was able to enroll
the minor children in an Israeli school. She asserted that “I would have loved to give
[Father] 30-day notice had it happened like that. And yes, it makes my court case
look bad. However, there’s truth here and there’s reality here.” (Nov. 28, 2023,
tr. 45.) Mother went on to explain that the middle two children had been expelled
from their orthodox school in Ohio and they were unable to find another orthodox school in Ohio that would enroll them. She claimed the middle two children were
expelled because Father failed to pay the tuition. The evidence, however, revealed
that they were expelled from school for excessive absences, tardies, and the failure
to complete assignments. To further that point, the evidence established that
Mother and the children departed for Israel two weeks before the school year ended.
When Father testified, he confirmed Mother’s testimony that they
had very little communication through OFW or otherwise. He testified that when
he attempted to exercise his weeks of visitation, Mother often thwarted his plans.
He explained that Mother prioritized the children’s extracurricular activities,
religious holidays, and her animosity towards Father over his relationship with the
children and the agreed visitation schedule. In a two-year period, Mother cancelled
Father’s visitation two out of eight times citing Jewish holidays and an aviation
award Mother was to receive. This did not include Mother’s cancellation of Father’s
summer 2022 visit because of her “trip” to Israel that is the subject of this appeal.
Father testified that on May 31, 2022, he was contacted by the
children’s school via email and was informed that the children were leaving school
that day and moving to Israel. He testified that he messaged Mother to inquire why
they were leaving before the end of the school year, when they would return, and
how he could contact the children in the interim. When Mother did not respond in
a timely fashion, he filed the TRO and motion to return the children. He testified
that when Mother finally responded on June 7, 2022, she informed him that she and
the children were in Israel for the summer. Mother did not provide any contact information for Father to speak with his children. He testified that she did offer to
pay the difference in flight prices in order for Father to visit the children in Israel.
Father testified that he declined Mother’s offer because Mother has a history of
calling the police on him and her new husband. He did not want to risk false
accusations in Israel.
Father also testified that he was unable to communicate with his
children from May 31, 2022, until June 2023 because Mother would not provide a
contact number for the children. He explained that he did not have a phone number
for Mother either, only her WhatsApp and OFW. He stated that communication
only resumed with his children because the magistrate got involved. Father also
testified that Mother would not provide him with information regarding the
children’s schooling or medical coverage. In fact, it was not until Mother testified
that Father learned which medical insurance company in Israel is providing care to
his children.
Father testified that the middle two children were expelled from
school because of their poor attendance and failure to complete assignments. He
explained that he made himself available to speak with the school on several
occasions before the expulsion, but Mother would never make herself available.
Father admitted that he was behind on tuition payments, but he testified that Jewish
schools have a policy that children will not be expelled for financial reasons.
Father explained that because of Mother’s actions, he has no
relationship with two of his children and a tenuous relationship with one of his other children. He stated that he has a decent relationship with the youngest two children
and they speak on a weekly basis. Father testified that it is in the youngest two
children’s best interest to live with him and his new wife. He asserted that he would
provide proper medical care and make certain the children are educated. He feared
that if the youngest two children remained with Mother, they would be uneducated
and completely alienated from Father like the other children. Father further
testified that because of the age of the middle two children and the severe alienation,
he felt that reunification therapy was required.
In addition, Father testified that, although Mother alienated the
eldest child from Father and the child could barely read or write when he obtained
custody, under his care, his eldest child graduated from high school and completed
online university. Notably, when Mother spoke of her oldest child she stated that
after she allowed the oldest child to have a two-week visitation with Father, the
oldest child no longer wanted to live with Mother. She lamented that their
relationship was damaged by that visitation.
The GAL recommended that the trial court modify the parenting
designations to shared parenting despite neither parent requesting such. He
recommended that Father’s parenting time take place initially in Ohio and then
eventually Texas after the relationship between Father and the minor children were
repaired. The GAL recommended that the children remain with Mother in Israel
and that Father travel to Israel for two visits a year. He recommended that Mother
facilitate a relationship between Father and the minor children. Nevertheless, he testified that “I’m very concerned about how things are presently. I’m very
concerned about how things were previously and I’m very concerned about whether
Mother can honor any agreement going forward in a way that would facilitate a
relationship between the children and their Father.” (Nov. 30, 2023, tr. 181-182.)
He stated that “it [is] pretty clear that it was not a priority for Mother to facilitate a
relationship with their Father.” (Nov. 30, 2023, tr. 182.)
After trial, the magistrate issued a decision on January 12, 2024,
granting Father’s (1) motion to return children to the United States, (2) motion to
modify parental rights and responsibilities, (3) motion for attorney fees, and (4)
motion to modify support; and denying (1) Father’s motion to apportion GAL fees,
(2) Mother’s motion to apportion GAL fees, and (3) Mother’s motion for attorney
fees. Mother filed timely objections. Father filed a brief in opposition to Mother’s
objections. The trial court overruled Mother’s 17 objections on May 23, 2024;
however, the trial court vacated the order requiring Mother to pay Father $26,000
for spousal support overpayment. Mother appealed. This court dismissed for lack
of final appealable order. Then on March 25, 2025, the trial court adopted the
magistrate’s decision as modified by separate entry. Mother now appeals, raising
the following assignments of error for review:
Assignment of Error I: The trial court lacked jurisdiction over the proceedings, and as such, its orders are void ab initio.
Assignment of Error II: The trial court erred and abused its discretion in modifying custody.
Assignment of Error III: The trial court erred and abused its discretion in modifying support. Assignment of Error IV: The trial court erred in ordering [Mother] to pay all of [Father’s] attorney fees, in the amount of $66,000.00.
II. Law and Analysis
Standards of Review
Generally, we review a trial court’s determinations in a domestic
relations case under an abuse-of-discretion standard. Booth v. Booth, 44 Ohio St.3d
142, 144 (1989). A trial court abuses its discretion when it exercises “its judgment,
in an unwarranted way, in regard to a matter over which it has discretionary
authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. When applying the abuse-
of-discretion standard, a reviewing court may not substitute its judgment for that of
the trial court. Vannucci v. Schneider, 2018-Ohio-1294, ¶ 22 (8th Dist.).
Furthermore, there is no abuse of discretion where the record contains competent,
credible evidence to support the trial court’s decision. A.E. v. J.E., 2024-Ohio-2644,
¶ 26 (8th Dist.). Nevertheless, whether a court has jurisdiction is a question of law
that we review de novo, and we afford no deference to the trial court’s decision.
Cleveland v. Kutash, 2013-Ohio-5124, ¶ 8 (8th Dist.).
Jurisdiction
In Mother’s first assigned error, she argues that the trial court lacked
subject-matter jurisdiction over the parties because the parties and the children do
not reside in Ohio, citing R.C. 3127.16. She contends that when the magistrate
determined that Mother and the children reside in Israel and Father resides in
Texas, the trial court no longer had jurisdiction over the proceedings. (Mag. Decision, Sept. 18, 2023, adopted by the trial court in J.E. Nov. 27, 2023.) We find
Mother’s argument unpersuasive.
R.C. 3127.16 states in pertinent part that
a court of this state that has made a child custody determination . . . has exclusive, continuing jurisdiction over the determination until the court or a court of another state determines that the child, the child’s parents . . . do not presently reside in this state.
(Emphasis added.)
In V.R.T. v. Celebrezze, 2019-Ohio-2339, ¶ 7 (8th Dist.), this court
addressed whether the trial court had jurisdiction under R.C. 3127.16 to entertain a
motion to modify visitation, which was filed in the underlying divorce case, when
the parties no longer resided in Ohio. This court held that “[o]nce Ohio has obtained
jurisdiction, it retains continuing jurisdiction, even if the parties no longer reside in
Ohio, as long as no other court has asserted jurisdiction over the parties.” Id. at ¶ 7.
Likewise, other districts have also concluded that Ohio retains
continuing jurisdiction under R.C. 3127.16, even if none of the parties live in Ohio,
so long as no other state has asserted jurisdiction. For example, in Mulatu v. Girsha,
2011-Ohio-6226 (12th Dist.), the Twelfth District explained that once jurisdiction is
vested in Ohio courts, “R.C. 3127.16 simply sets forth the terms under which Ohio
no longer has exclusive jurisdiction. In other words, R.C. 3127.16 sets forth the
proposition that it is possible that an Ohio court is not the only court/state with
jurisdiction. However, the statutory principle does not strip the Ohio trial court
from continuing jurisdiction[.]” (Emphasis added.) Id. at ¶ 45. Similarly in Johnson v. Kelly, 2015-Ohio-2666 (10th Dist.), the Tenth District stated that if none
of the parties reside in Ohio, and if “another court has not indicated an intent to take
jurisdiction, R.C. 3127.16 does not completely deprive an Ohio court of jurisdiction
but merely deprives it of ‘exclusive’ jurisdiction.” Id. at ¶ 16. Finally in Robinette v.
Bryant, 2013-Ohio-2889, ¶ 1 (4th Dist.), the Fourth District explained that “R.C.
3127.16 does not totally divest a trial court of jurisdiction if the parties move out of
state; rather the court only loses its claim to exclusive jurisdiction.”
Although none of the parties reside in Ohio in the case at bar, it is
undisputed that no other court has asserted jurisdiction over the parties. In fact, the
parties stipulated that no other court has asserted jurisdiction over the parties, and
as we stressed in V.R.T., “there must be a forum to determine the welfare of the
children.” V.R.T. at ¶ 7, citing Mulatu at ¶ 45. Therefore, after reviewing the record
and the relevant law, we find that the trial court has continuing jurisdiction to
address the matters at hand.
We turn now to Mother’s argument that the trial court did not have
jurisdiction to modify parental rights and responsibilities. She contends jurisdiction
was expressly limited to a modification of visitation schedule because Mother filed
her notice of intent to relocate pursuant to R.C. 3109.051(G)(1), which only gives the
trial court jurisdiction to modify visitation. R.C. 3109.051(G)(1) states:
If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. . . . [T]he court shall send a copy of the notice to the parent who is not the residential parent. Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child.
Mother cites numerous cases alleging that Ohio courts have held that
once Mother filed her notice to relocate, the trial court was essentially stripped of its
authority to modify parental rights and responsibilities and could only address
visitation. A review of the cases cited, however, does not support Mother’s
contention.3 Although courts have held that R.C. 3109.051(G)(1) does not grant the
court authority to prohibit relocation, none of the cases cited support Mother’s
assertion that the trial court may only address visitation when motions to modify
3 Zinnecker v. Zinnecker, 133 Ohio App.3d 378 (12th Dist. 1999)(reversing the
denial of mother’s motion to modify custody because relocation to another state with father, under the facts of this case, was a substantial change in circumstances that warranted a review of whether it was in the best interest of the child to modify custody); Valentine v. Valentine, 2012-Ohio-426 (12th Dist.)(finding that relocation alone was not a change of circumstances); In re Noble, 2001 Ohio App. LEXIS 1563 (11th Dist. Mar. 30, 2011)(The trial court denied father’s motion to modify custody but prohibited mother from moving. The appellate court held that R.C. 3109.051(G)(1) does not give the trial court the authority to prevent the residential parent from relocating.); Acus v. Acus, 2010- Ohio-856 (12th Dist.)(reversing the trial court’s denial of mother’s motion to relocate finding that R.C. 3109.o51(G)(1) does not grant the trial court authority to prevent mother from relocating absent a prior agreement stating otherwise); Randolph v. Britt, 2012- Ohio-4433 (9th Dist.)(reversing the denial of mother’s motion to relocate and modify visitation explaining that because the trial court denied father’s motion to modify custody the trial court must address whether a modification of the parenting schedule would serve the best interest of the child, and the trial court could not prohibit relocation); Kassavei v. Hosseinipour, 2001 Ohio App. LEXIS 2490 (11th Dist. June 1, 2001)(reversing the denial of mother’s notice to relocate and remanding for further proceedings to implement a visitation schedule); Spain v. Spain, 1995 Ohio App. LEXIS 2678 (3d Dist. June 21, 1995)(reversing the denial of mother’s motion to relocate and remanding the case to address the visitation schedule); Ross v. Ross, 2012-Ohio-2175 (9th Dist.)(affirming the trial court’s decision permitting mother to relocate and denying additional visitation to father explaining that the trial court did not have authority to prohibit relocation of the residential parent, only adjust the visitation schedule). parental rights and responsibilities are also pending before the court. In the instant
case, Father’s motion to modify parental rights and responsibilities, or in the
alternative, a motion to modify companionship schedule was in fact pending before
the court. Therefore, we find Mother’s argument regarding R.C. 3109.051(G)(1)
unpersuasive. We conclude that the trial court had jurisdiction to address Father’s
pending motion to modify parental rights and responsibilities.
Accordingly, Mother’s first assignment of error is overruled.
Modification of Parental Rights and Responsibilities
In Mother’s second assignment of error, she argues that it was an
abuse of discretion to modify parental rights and responsibilities because Father
failed to show a change of circumstances and that it was in the best interest of the
children to change custody. In addition, she argues he failed to overcome the
presumption that the harm likely caused by the change outweighed the advantages.
She also disagrees with the trial court’s findings that Mother absconded with the
children to Israel, obstructed the GAL’s investigation, engaged in parental
alienation, and failed to provide for the children’s health and education.4
R.C. 3109.04(E)(1)(a) governs the modification of a prior decree
allocating parental rights and responsibilities. It states, in pertinent part:
4 Mother’s argument that the visitation schedule is not practical will not be addressed in this appeal because Mother failed to raise the argument in the trial court. Indeed, it has long been held that “[a] party who fails to raise an argument in the court below waives his or her right to raise it [on appeal].” State ex rel. Zollner v. Indus. Comm. of Ohio, 66 Ohio St.3d 276, 278 (1993), citing State ex rel. Gibson v. Indus. Comm., 39 Ohio St.3d 319 (1988). 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:
...
(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.
R.C. 3109.04(E)(1)(a)(iii).
Accordingly, before reallocating parental rights and responsibilities,
the court must first consider whether a change of circumstances has occurred.
Although the statute does not define “change in circumstances,” it is generally held
that a change of circumstances is “an event, occurrence, or situation which has a
material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio
App.3d 599, 604-605 (7th Dist. 2000). The change of circumstances must be “one
of substance, not a slight or inconsequential change,” but the change need not be
substantial. Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).
Here, Mother contends that Father agreed she could relocate with the
children to Israel; therefore, he cannot use the move as a change of circumstances.
Furthermore, she argues that relocation alone is not sufficient to constitute a change
of circumstances citing Valentine, 2012-Ohio-426, ¶ 13 (12th Dist.). While we agree with Mother that relocation alone is not sufficient to constitute a change in
circumstances, relocation may be a factor in such a determination. Zinnecker, 133
Ohio App.3d at 384. Furthermore, in the instant case, Father argued that the
“relocation without notice appears sporadic and without thought and consideration
to the best interest of the children.” (Father’s Motion to Modify Parental Rights,
Sept. 12, 2022.) Additionally, Father argued that Mother had alienated the children
from Father. The trial court agreed that Mother had successfully alienated Father
from his children since the prior decree. In fact, the trial court did not even rely on
the relocation to Israel to establish a change of circumstances. The trial court stated
that
a change of circumstances has occurred since the November 15, 2019 Agreed Judgment Entry. The Magistrate found that [Mother] did not adequately address the children’s education and health needs. Further, the Magistrate found that [Mother] alienated the children from [Father]. As evidence, the Magistrate lists several examples from after November 15, 2019 of [Mother] failing to address the children’s mental health issues and of the children missing or being tardy to school. Finally, the Magistrate cited to the GAL’s investigation and report which found that [Mother] was inappropriately involving the children in issues between the parties.
(J.E. May 23, 2024.) Therefore, Mother’s argument regarding relocation
improperly being used as a change of circumstances is not supported by the record.
We turn now to Mother’s argument that the trial court’s findings of
alienation and failure to adequately care for the children’s health and education are
unfounded. She contends that because these findings are unfounded there is no evidence of a change of circumstances; therefore, the modification of parental rights
and responsibilities was an abuse of discretion.
Contrary to Mother’s assertion, the record contains competent,
credible evidence that she alienated the children from Father by repeatedly
cancelling Father’s scheduled visitation when they lived in Ohio. In addition, the
evidence established that Mother departed for Israel with the children without
informing Father and refused to provide contact information so Father could
communicate with his children. In fact, according to Father’s uncontested
testimony he was unable to speak with his children for over a year, and
communication only resumed when “the Magistrate got involved, and there was an
agreement that was reached.” (Nov. 29, 2023, tr.24.) Also, Mother refused to
inform Father regarding the children’s health and education instead expecting
Father to somehow ascertain which healthcare provider and schools the children
attended in Israel. Considering the foregoing, we find that the record supports the
trial court’s finding that Mother alienated the children from Father since the prior
decree in 2019.
We also find that the record contains competent, credible evidence
that Mother failed to adequately care for the children’s health and education. The
evidence established that two of the children have diagnosed mental-health
disorders that are not being treated properly, and one child needs a mental-health
assessment. In addition, two of the children have undiagnosed developmental
disabilities that are not being addressed. Finally, all four of the children have a shocking number of absences from school ranging from 25 days to 50 days in any
given year, which does not include the dozens of tardies each year. In fact, the trial
court found that Mother’s negligence concerning the middle two children’s
attendance solely contributed to the children being expelled from their orthodox
school in Ohio. Based on the foregoing, we find that the record supports the trial
court’s finding that Mother failed to adequately care for the children’s health and
education since the prior decree.
Because Mother alienated the children from Father and failed to
adequately care for the children’s health and education, we conclude that there is
competent, credible evidence of a change of circumstances since the prior decree in
2019. Accordingly, the trial court’s finding was not an abuse of discretion.
Having found Father proved a change of circumstances, we now
address Mother’s argument that Father failed to prove that a modification of
parental rights and responsibilities was in the children’s best interest. Mother
contends that the trial court erred in finding that Father was more likely to act in the
children’s best interest, complaining that she was unfairly expected to keep Father
informed of the children’s health and education. We find Mother’s arguments
unpersuasive.
R.C. 3109.04(F)(1) sets forth a nonexhaustive list of factors a trial
court must consider when determining the best interest of the children.
Importantly, the best-interest determination focuses on the children, not the
parents. In re N.B., 2015-Ohio-314, ¶ 59 (8th Dist.). Contrary to Mother’s assertion, the trial court considered the relevant
factors delineated in R.C. 3109.04(F)(1) when determining the best interest of the
children. Specifically, the judgment entry reflects that the trial court considered the
following factors:
(a) The wishes of the child[ren’s] parents regarding the child[ren’s] care;
(c) The child[ren’s] interaction and interrelationship with the child[ren’s] parents, siblings, and any other person who may significantly affect the child’s best interest;
(d) The child[ren’s] adjustment to the child[ren’s] home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
R.C. 3109.04(F)(1). (Mag. Decision, Jan. 12, 2024.)
After addressing the relevant factors, the trial court concluded that it
was in the best interest of the children to modify parental rights and responsibilities. The decision was primarily based on Mother’s continuous and willful conduct that
alienated the children from Father, as well as Mother’s complete failure to address
the children’s mental health and school attendance.
After reviewing the record, we find that it was not an abuse of
discretion for the trial court to conclude that it was in the children’s best interest to
modify parental rights and responsibilities. As previously stated, the evidence
clearly demonstrates that Mother alienated the children from Father and did not
adequately care for the children’s health and education. Moreover, we agree with
the trial court’s conclusion that “if the children remain with [Mother] the children
will suffer further developmental delays and will be further alienated from [Father].”
(J.E., May 23, 2024.) Additionally, Mother’s argument that she was unfairly
expected to keep Father updated regarding the children’s health and education is
irrational. Naturally, when Mother moved the children 6,000 miles away to another
country it is fair for Father to expect, and the court to conclude, that Mother should
have kept Father informed of the children’s health and education.
Mother also asserts that Father agrees that the middle two children
should remain with Mother. We disagree with Mother’s characterization of the
situation. It was only because of Mother’s actions, which resulted in the extreme
alienation of the middle two children against Father, that he requested custody of
the younger two children and a modification of the visitation schedule with the
middle two children to initiate reunification therapy. Nevertheless, the trial court
concluded that [d]espite the acrimony that [the middle two children] have toward Father, leaving them with Mother would only cause further developmental damage for [the middle two children]. . . . Add in Mother’s alienation of the children against Father and her purposeful withholding of basic, legally entitled information from Father and you produce four children who will grow up to be unprepared for life’s challenges and possess great difficulty at sustaining relationships in their own lives. . . . The Court entrusted Mother to look out for the best interest of the children, but Mother only focused instead on what was in her best interest.
(Mag. Decision, Jan. 12, 2024.) We agree with the trial court’s conclusion that
Mother’s conduct was so extreme and the risk to the children’s well-being so great
that it would be better for the middle two children to live with Father and their
siblings than to remain in Mother’s custody. As a result, we find that the trial court
did not abuse its discretion by finding that it was in the best interest of the children
to modify parental rights and responsibilities.
Next, Mother argues that the harm likely to be caused by the change
of environment is outweighed by the advantages of the change of environment for
the children. Ironically, the crux of Mother’s argument is that changing schools
would be detrimental to the children’s well-being, when Mother failed to prioritize
her children’s education in Ohio, as well as in Israel. After a thorough review of the
record, we conclude that the evidence clearly establishes that remaining in Mother’s
custody would be detrimental to the children’s education, mental health, and
relationship with Father. Therefore, the trial court did not abuse its discretion by
finding that the harm did not outweigh the advantages. Finally, Mother claims the trial court’s findings that she absconded
with the children and that she obstructed the GAL’s investigation are not supported
by the record. A thorough review of the record, however, clearly establishes that
Mother has been anything but cooperative and forthcoming with Father, the court,
or the GAL.
The evidence reflects that Mother departed for Israel with the
children prior to the end of the school year without notifying Father. Then when
Father learned through the children’s school that Mother planned to stay in Israel
with the children, he contacted Mother and she failed to respond. While awaiting a
response, Father was forced to file a TRO and a motion to return the children to the
United States. The trial court granted the TRO; however, Mother had already
absconded to Israel. To date, Mother has not returned with the children despite the
court order. Therefore, we find that there is competent, credible evidence to support
the finding that Mother absconded with the children.
Furthermore, the testimony of the GAL supports the trial court’s
finding that Mother obstructed the investigation. The GAL testified that over the
course of ten months there were over a dozen instances of noncompliance by
Mother. He indicated that Mother delayed providing the children’s contact
information, medical records, and school records, which are the foundations of his
investigation. In fact, the original trial date was rescheduled because Mother still
had not provided medical and academic records six months after the GAL’s request.
In addition, when Mother finally provided some of the information, it was on the eve of trial and in Hebrew. Therefore, we find that the trial court’s conclusion that
Mother obstructed the GAL’s investigation is well-founded.
Because Father established that there was a change of circumstances
since the November 15, 2019 A.J.E., that it was in the best interest of the children to
modify parental rights and responsibilities, and the advantages of the change
outweighed the harm, we find that the trial court did not abuse its discretion by
modifying parental rights and responsibilities.
Accordingly, Mother’s second assignment of error is overruled.
Modification of Support
In Mother’s third assignment of error, she argues that the trial court
erred in (1) terminating her spousal support, (2) imputing income to Mother, (3)
and ordering Mother to pay child support.5 We disagree.
Initially, Mother asserts that the trial court abused its discretion by
terminating spousal support when Father failed to pay for the children’s
extracurricular activities. She argues that her show-cause motion should have been
considered when terminating support. We note that she cites no law to support her
contention. Furthermore, Mother’s argument is nonsensical because her show-
cause motion was not before the trial court and the children’s extracurricular
activities are not covered under spousal support. Moreover, in the November 15,
2019 A.J.E. the parties agreed to extend Mother’s spousal support for 12 months at
5 Mother’s argument regarding the trial court’s order of a cash bond was not
properly raised below and will not be addressed on appeal. $2,000 a month, which was to expire on December 31, 2022. Father waited until
January 18, 2023, to file the motion to terminate spousal support, even though
Mother remarried in March 2022, which should have terminated spousal support
as stated in the original divorce decree. (J.E. Feb. 15, 2017). Based on the foregoing,
we find that the trial court did not abuse its discretion by terminating spousal
Next, Mother contends that she is not voluntarily unemployed or
underemployed because she is a stay-at-home mom; therefore, the trial court
wrongfully imputed a minimum wage income to her without considering her
circumstances. She contends that she should not owe child support for her children.
We find Mother’s arguments unpersuasive.
When issuing an order of child support, the trial court “shall calculate
the amount of the parents’ child support and cash medical support in accordance
with the basic child support schedule, the applicable worksheet, and the other
provisions of Chapter 3119.” R.C. 3119.02. To calculate the amount of child support
owed, the trial court must first determine the annual income of each parent. Ayers
v. Ayers, 2024-Ohio-1833, ¶ 13. “Income” is defined in R.C. 3119.01(C)(10) and
means either of the following:
(a) For a parent who is employed to full capacity, the gross income of the parent;
(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent. “Potential income” for a parent who is voluntarily unemployed or voluntarily
underemployed includes “[i]mputed income that the court . . . determines the parent
would have earned if fully employed.” R.C. 3119.01(C)(18)(a).
To determine the potential income for a parent who the court finds is
voluntarily unemployed or voluntarily underemployed, the court assesses the
(i) The parent’s prior employment experience;
(ii) The parent’s education;
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent resides;
(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
(viii) The age and special needs of the child for whom child support is being calculated under this section;
(ix) The parent’s increased earning capacity because of experience;
(x) The parent’s decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
R.C. 3119.01(C)(18)(a)(i)-(xi). Thus, when calculating a parent’s potential income,
the trial court must make two specific determinations. “First, the court must
determine that a parent’s unemployment or underemployment was voluntary.” Ayers at ¶ 14. “Second, the court must determine what the parent would have
earned if fully employed.” Id.
In the instant case, the record established that Mother is a stay-at-
home-mom and has not been employed outside the home since 2013 by choice. She
is remarried and receives financial assistance from her new spouse. In addition,
Mother testified that she was previously employed as a teacher in a Hebrew school
in Ohio, and prior to that, she managed approximately 250 workers at Olatex, a large
manufacturing company in Israel. She also testified that she obtained her pilot’s
license and finished her degree in psychology in 2019. “Further, [Mother] is a
healthy, 43-year-old woman who has the ability to earn a reasonable wage.” (J.E.
May 23, 2024.)
Based on the foregoing, we find that the trial court’s decision to
impute Mother’s income at minimum wage is hardly unconscionable in light of
Mother’s education and abilities. We further find that ordering Mother to pay a total
amount of $231.50 plus 2% processing charge in child support for her four children
is not an abuse of discretion because the trial calculated the child support in
accordance with the basic child support schedule and applicable worksheet. Indeed,
it must be remembered that the purpose of child support is to meet the needs of the
minor children, and the trial court has broad discretion when determining how to
meet those needs. Carnes v. Kemp, 2004-Ohio-7107, ¶ 10.
Accordingly, Mother’s third assignment of error is overruled. Attorney Fees
In Mother’s fourth assignment of error, she contends that the trial
court erred by ordering Mother to pay Father’s attorney fees without considering
Mother’s ability to pay. In addition, she contends that the award of $66,000 is so
high that it shocks the conscience. Finally, Mother asserts that the trial court
improperly relied on the belief that Mother absconded with the children to Israel
and obstructed the GAL’s investigation. Again, we find Mother’s arguments
In post-decree divorce proceedings, a court may award all or part of
reasonable attorney fees and litigation expenses to either party if the court finds the
award equitable. R.C. 3105.73(B); Allan v. Allan, 2019-Ohio-2111, ¶ 95 (8th Dist.).
In determining whether such an award is equitable, R.C. 3105.73(B) states that “the
court may consider the parties’ income, the conduct of the parties, and any other
relevant factors the court deems appropriate, but it may not consider the parties’
assets.” (Emphasis added.) The decision to award attorney fees under R.C. 3105.73
lies within the sound discretion of the trial court and will not be reversed absent an
abuse of that discretion. Allan at ¶ 95, citing Huffer v. Huffer, 2010-Ohio-1223, ¶ 19
(10th Dist.).
Contrary to Mother’s argument, R.C. 3105.73(B) does not require the
trial court to consider either party’s income when awarding attorney fees and an
award of attorney fees can be equitable without any such consideration. Coomes v.
Coomes, 2020-Ohio-3839, ¶ 14 (12th Dist.). Moreover, the statute permits the trial court to consider other relevant factors, including the conduct of the parties, when
ordering attorney fees. Here, the record is replete with instances of Mother’s
attempt to thwart and prolong the proceedings, including, but not limited to,
absconding to Israel, failing to return the children, filing an untimely notice to
relocate, failing to cooperate with the GAL’s investigation, and filing a motion to
dismiss for lack of jurisdiction on the eve of trial, not to mention Mother’s utter
disregard for the truth when testifying. We also note the restraint Father displayed
by not filing numerous motions to compel that were clearly warranted by Mother’s
behavior. Based on the foregoing, we cannot say the court abused its discretion
when ordering attorney fees.
Accordingly, Mother’s fourth assignment of error is overruled.
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 be sent to said court 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.
____________________________ MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and KATHLEEN ANN KEOUGH, J., CONCUR