McClintock v. Gould

2013 Ohio 5117

• Court: Ohio Court of Appeals
• Decided: November 6, 2013
• Docket: 12CA23
• Status: Published

Opinion

[Cite as McClintock v. Gould , 2013-Ohio-5117.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

REBEKAH MCCLINTOCK, : Case No. 12CA23 : Plaintiff-Appellant, : : DECISION AND v. : JUDGMENT ENTRY : ERIC F. GOULD, : : RELEASED: 11/6/13 Defendant-Appellee. : ______________________________________________________________________ APPEARANCES:1

Jason P. Smith, Proctorville, Ohio, for appellant.

Randall Lambert, Ironton, Ohio, for third-party petitioner-appellee Deborah Schrader. ______________________________________________________________________ Harsha, J.2

{¶1} Rebekah McClintock appeals the trial court’s decision to grant Deborah

Schrader, the paternal grandmother of two of McClintock’s children, companionship

rights. McClintock contends the court could not consider the motion for companionship

because Schrader waited to file her motion until after divorce proceedings between

McClintock and the children’s father ended, and circumstances in the case had not

changed since the issuance of the divorce decree. Schrader argues that McClintock

misinterprets the statute at issue, and the change in circumstances provision does not

apply to the companionship motion.

{¶2} R.C. 3109.051(B)(2) is ambiguous because its language is susceptible to

more than one reasonable interpretation. Applying rules of statutory interpretation, we

conclude the change in circumstances requirement in the statute does not apply if a

1 Eric Gould has not entered an appearance or otherwise participated in this appeal. 2 This case was reassigned to Judge Harsha on August 8, 2013. Lawrence App. No. 12CA23 2

non-parent files a R.C. 3109.051(B)(1) motion for visitation or companionship rights for

the first time after a court issues a decree or final order in the divorce or other statutorily

enumerated proceeding. Therefore, the trial court could consider Schrader’s motion on

its merits.

{¶3} Next, McClintock complains the court did not find companionship time was

in the best interest of the children. But this finding is implicit because the court

considered the requisite statutory factors before it awarded Schrader companionship

rights. McClintock also argues the court could not find companionship time to be in the

children’s best interest because it goes against her wishes and the children did not have

an “extraordinary” relationship with Schrader. However, the court gave the requisite

“special weight” to McClintock’s desires but ultimately found the best interest of the

children favored companionship and that interest outweighed her desires. The court did

not have to find Schrader had an “extraordinary” relationship with the children to reach

this conclusion. Moreover, the court took great pains to alleviate McClintock’s primary

concern that Schrader would talk to the children about their father’s incarceration.

McClintock failed to demonstrate anything unreasonable, arbitrary, or unconscionable

about the court’s decision to award companionship time.

I. Facts

{¶4} McClintock and Eric Gould married in 2004 and had two children together,

R.G. and A.G. In August 2008, McClintock filed a complaint for divorce because she

believed Gould had engaged in sexual conduct with her then nine-year-old daughter

from a previous marriage. Gould pleaded guilty to two counts of gross sexual

imposition and went to prison. See State v. Gould, Lawrence C.P. No 08CR276 (Jan. 7, Lawrence App. No. 12CA23 3

2010). The trial court issued a divorce decree on May 5, 2010, and the court

designated McClintock as the “primary custodial and residential parent” of R.G. and

A.G. The court awarded Gould no visitation time as he was incarcerated and not

scheduled for release until 2018.

{¶5} On May 27, 2010, Schrader filed a Motion to Join Necessary Party and a

Motion for Companionship Time. In the companionship motion, she alleged that prior to

Gould’s arrest in August 2008, she had a good relationship with R.G. and A.G. and that

it would be beneficial for her and the children to continue that relationship. McClintock

opposed the motions. After a hearing, a magistrate issued a decision granting Schrader

companionship time once a month with R.G. and A.G. McClintock filed objections and

the trial court remanded the matter for appointment of a guardian ad litem (GAL) to

investigate and report to the court on the criteria in R.C. 3109.051. The court also

instructed the magistrate to enter findings of fact and conclusions of law that addressed

“all the criteria set forth under O.R.C. 3109.051 specifically.”

{¶6} Subsequently, the GAL filed a report and recommended that Schrader

receive companionship time. The magistrate conducted another hearing, took

additional evidence, and again issued a decision granting companionship time.

McClintock again filed objections. She argued in part that Schrader did not “timely” file

her companionship motion under R.C. 3109.051(B)(2) because Schrader filed the

motion after the court issued the divorce decree and the circumstances in the case had

not changed since then. McClintock also claimed the magistrate did not afford special

weight to her wishes. The trial court noted that McClintock never paid for (and thus

never filed) a transcript of the proceedings. Therefore, the court accepted the Lawrence App. No. 12CA23 4

magistrate’s findings of fact. Nonetheless, the court stated that it reviewed the “legal

issues” raised by her objections and overruled them. The trial court granted Schrader

supervised visitation with the children once a month, for two hours, at a public location

near the children’s residence. This appeal followed.

II. Assignments of Error

{¶7} McClintock assigns the following errors for our review:

1. THE COURT BELOW ERRED IN ALLOWING THE PETITIONER- APPELLEE TO INTERVENE IN THIS CASE DUE TO THE FACT THAT HER PETITION WAS NOT TIMELY FILED IN ACCORDANCE WITH O.R.C. 3109.05(B)(2).

2. THE COURT BELOW ERRED IN ORDERING THAT THE PLAINTIFF- APPELLANT’S MINOR CHILDREN HAVE COMPANIONSHIP TIME WITH THE PETITIONER-APPELLEE WITHOUT MAKING A SPECIFIC FINDING THAT SUCH COMPANIONSHIP TIME WAS IN THE BEST INTEREST OF SAID CHILDREN AS REQUIRED BY O.R.C. 3109.051(B)(1)(c) AND WITHOUT A BASIS FOR SUCH A FINDING UPON CONSIDERATION OF THE FACTORS SET FORTH IN O.R.C. 3109.051(D).

III. R.C. 3109.051(B)(2)’s Change in Circumstances Requirement Does Not Apply

{¶8} In her first assignment of error, McClintock contends the trial court erred

when it allowed Schrader to “intervene” because the motion for companionship was

“untimely” under R.C. 3109.05(B)(2). In reality McClintock argues that because

Schrader filed her motion after the divorce proceedings ended, under R.C.

3109.051(B)(2) the court could not consider the motion as the circumstances in the

case had not changed since the court issued the divorce decree. Schrader argues

McClintock misinterprets the statute, and the change in circumstances requirement

does not apply to her because this is her first companionship motion.

{¶9} R.C. 3109.051(B) states: Lawrence App. No. 12CA23 5

(1) In a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child, the court may grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity or affinity, or any other person other than a parent, if all of the following apply:

(a) The grandparent, relative, or other person files a motion with the court seeking companionship or visitation rights.

(b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child.

(c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child.

(2) A motion may be filed under division (B)(1) of this section during the pendency of the divorce, dissolution of marriage, legal separation, annulment, or child support proceeding or, if a motion was not filed at that time or was filed at that time and the circumstances in the case have changed, at any time after a decree or final order is issued in the case. (Emphasis added.)

{¶10} The parties have competing interpretations of the italicized portion of R.C.

3109.051(B)(2). Their dispute centers on statutory interpretation, which presents a legal

issue we review de novo. Denuit v. Ohio State Bd. of Pharmacy, 2013-Ohio-2484, 994

N.E.2d 15 (4th Dist.), ¶ 30. “The primary goal of statutory construction is to ascertain

and give effect to the legislature’s intent in enacting the statute.” State v. Lowe, 112

Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. “If the meaning of a statute is

unambiguous and definite, it must be applied as written and no further interpretation is

necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio

St.3d 543, 545, 660 N.E.2d 463 (1996). But if a statute is ambiguous, “further

interpretation is necessary.” State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio–5991,

939 N.E.2d 1234, ¶ 16. A statute is ambiguous if its language is susceptible to more

than one reasonable interpretation. See State ex rel. Toledo Edison Co. v. Clyde, Lawrence App. No. 12CA23 6

76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996).

{¶11} The phrase “or, if a motion was not filed at that time or was filed at that

time and the circumstances in the case have changed, at any time after a decree or

final order is issued in the case” in R.C. 3109.051(B)(2) is ambiguous as it is susceptible

to more than one reasonable interpretation. As McClintock argues, the statute could

reasonably be interpreted to mean that any time a non-parent files a companionship

motion after the court issues a decree or final order in one of the enumerated

proceedings, the motion cannot proceed unless the circumstances in the case have

changed. But as Schrader argues, the statute could also reasonably be interpreted to

mean the change in circumstances requirement only applies to a post-decree or final

order motion if the non-parent previously filed a motion during the proceedings (and the

court presumably denied it).

{¶12} Because the statute is ambiguous, we must interpret it. R.C. 1.49

provides that if a statute is ambiguous, in determining the intention of the legislature, we

“may consider among other matters: (A) The object sought to be attained; (B) The

circumstances under which the statute was enacted; (C) The legislative history; (D) The

common law or former statutory provisions, including laws upon the same or similar

subjects; (E) The consequences of a particular construction; (F) The administrative

construction of the statute.” Under R.C. 1.42, we must read words and phrases in

context and construe them according to the rules of grammar and common usage

unless they have acquired a technical or particular meaning. In addition, R.C. 1.47(B)

provides that: “In enacting a statute, it is presumed that * * * [t]he entire statute is

intended to be effective[.]” In other words, we must presume the legislature intended Lawrence App. No. 12CA23 7

that every word in a statute have some legal effect. See State ex rel. McQueen v. Court

of Common Pleas of Cuyahoga Cty., 135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d

925, ¶ 12, quoting State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn.,

131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18 (“ ‘Venerable principles of

statutory construction require that in construing statutes, we must give effect to every

word and clause in the statute.’ ”)

{¶13} McClintock cites a Supreme Court of Ohio case, In re Gibson, 61 Ohio

St.3d 168, 573 N.E.2d 1074 (1991), for the proposition that: “When a motion for non-

parental visitation is filed under O.R.C. 3109.051 (B)(2) [sic], and is not filed during the

pendency of the case, the statute contemplates the occurrence of a disruptive,

precipitating event prior to the filing.” (Appellant’s Br. 8). Gibson does not stand for this

proposition. The Gibson Court never interpreted R.C. 3109.051(B)(2) or determined

when the change in circumstances requirement applied. In fact, the Court stated R.C.

3109.051 had no effect on the outcome of the case before it. Gibson at 170. Therefore,

we find Gibson does not control our statutory analysis.

{¶14} Much of the grammar in R.C. 3109.051(B)(2) is confusing, to say the least.

First, the legislature wrote it using the passive voice, which frequently leads to ambiguity

and uncertainty. Second, the legislature’s use of a complex sentence leaves the reader

guessing as to the legislature’s true intent. The placement and structure of the

subordinate clauses, combined with passive voice and comma placement relative to the

use of conjunctions, results in hopeless confusion.

{¶15} Accordingly, we resort primarily to the rule of construction that presumes

there is no “surplusage” in the statutory language, i.e., all the words used have an Lawrence App. No. 12CA23 8

intended meaning. Doing so, we conclude the change in circumstances requirement

only applies to those non-parents who actually filed unsuccessful motions for visitation

or companionship during the pendency of the divorce or other proceeding.

{¶16} In order to give R.C. 3109.051(B)(2) a “plain language” interpretation and

to ensure that all words in the statute have meaning, we interpret the statute to state

that a non-parent may file a motion for visitation or companionship: (1) during the legal

proceeding (divorce, dissolution, etc.), or (2) after a decree or final order is issued in the

case if (a) the non-parent did not file such a motion during the proceeding, or (b) the

non-parent did file such a motion during the proceeding and the circumstances in the

case have changed subsequently. If we were to apply the clause “and the

circumstances in the case have changed” to the “if a motion was not filed at [the time of

the proceeding]” portion of the statute, the entire clause “if a motion was not filed at that

time or was filed at that time” would be surplusage and could be eliminated from the

statute. This is true because the clause would state that if one thing happens or its

opposite happens, one must still have a change in circumstances. Similar to a double

negative, that language would in effect cancel itself out. If the legislature had intended

for the change in circumstances requirement to apply to all post-decree motions, it

simply could have said that the motion may be filed: (1) during the legal proceeding, or

(2) after the decree or final order is issued if the circumstances in the case have

changed. The only logical way to give both clauses – “not filed” and “filed” – meaning is

to apply the change in circumstances language to the latter but not the former.

{¶17} We do not accept that our interpretation undermines the finality of cases

and creates protracted litigation. In enacting the statute the legislature did clearly intend Lawrence App. No. 12CA23 9

to give non-parents the ability to re-open divorce and other proceedings on the limited

issue of visitation and companionship rights. The statute explicitly permits non-parents

to file post-decree or final order motions for these rights. All our decision does is

determine when such a motion must meet the threshold change in circumstances

requirement before the court proceeds to the remainder of the analysis, i.e., whether the

non-parent has an interest in the welfare of the child and the granting of the

companionship or visitation rights is in the best interest of the child. Our interpretation

simply permits non-parents who file a visitation or companionship motion for the first

time post-decree to proceed even if the circumstances in the case have not changed.

The court must still determine that the non-parent has an interest in the child’s welfare

and that visitation or companionship is in the best interest of the child before the non-

parent can obtain any visitation or companionship rights. And although we are sensitive

to the need to discourage protracted litigation, we do not view our decision as

encouraging that result. Domestic relations cases are often protracted by virtue of their

very nature, as well as the conduct of the parties and counsel.

{¶18} The lack of a comma between the clause “was not filed at that time” and

the clause “or was filed at that time and the circumstances in the case have changed”

does not give us reason to suppose the absence is intentional. We are not aware of

any authority for the proposition that in interpreting a statute, we must presume the

absence of punctuation is intentional and has meaning. As we already explained, our

interpretation of R.C. 3109.051(B)(2) comports with the rule of construction that requires

us to give legal effect to all the words actually used in a statute. To interpret the statute

otherwise would give effect to what the legislature did not put in the statute instead of Lawrence App. No. 12CA23 10

what it did.

IV. The Best Interest of the Children

{¶19} In her second assignment of error, McClintock initially contends that the

court erred because in its final judgment entry, it did not make a finding that

companionship rights were in the best interest of the children. Again, R.C.

3109.051(B)(1) states that before a court may grant reasonable visitation or

companionship rights to a non-parent, the court must among other things “determine[ ]

that the granting of the companionship or visitation rights is in the best interest of the

child.” R.C. 3109.051(C) states that: “When determining whether * * * to grant

companionship or visitation rights to a grandparent, relative, or other person pursuant to

this section * * *, the court * * * shall consider * * * all of the factors listed in division (D)

of this section.” R.C. 3109.051(D) sets forth 16 factors.

{¶20} We agree the trial court failed to make an explicit finding in its September

10, 2012 judgment entry that granting Schrader companionship rights was in the best

interest of the children. However, although R.C. 3109.051(B)(1) requires that the court

“determine[ ]” such rights are in the children’s best interest, the statute does not require

that the determination be in the form of an explicit finding. Obviously, it would be

preferable for courts to explicitly make their best interest finding. However, in this case

the trial court noted that non-parent visitation statutes allowed it to consider “the best

interest of the child and balance[ ] that interest against the parent’s desires.” The court

explicitly made findings on all of the relevant R.C. 3109.051(D) factors. Then the court

granted Schrader companionship time “after balancing the * * * factors, and giving the

parental wishes special weight * * *.” The court’s “best interest” finding is implicit in this Lawrence App. No. 12CA23 11

decision. Therefore, we reject McClintock’s argument. See Brammer v. Brammer, 5th

Dist. Delaware No. 05 CAF 05 0028, 2006-Ohio-3318, ¶ 20-26 (rejecting argument that

court erred when it awarded visitation to a non-parent under R.C. 3109.051(B)(1)

without first finding visitation rights were in the children’s best interest because such a

finding was implicit in the court’s decision).

{¶21} Next, McClintock contends a review of the evidence on the R.C.

3109.051(D) factors does not support the court's finding that companionship time was in

the children’s best interest. “The trial court has broad discretion as to visitation issues,

and its decision will not be reversed absent an abuse of discretion, i.e., the decision is

unreasonable, arbitrary or unconscionable.” In re S.K.G., 12th Dist. Clermont No.

CA2008-11-105, 2009-Ohio-4673, ¶ 21.

{¶22} The crux of McClintock’s argument is that the court had to give “special

weight” to her desire for Schrader to not have companionship rights based on the

United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct.

2054, 147 L.Ed.2d 49 (2000). McClintock argues that as the parent, her wishes must

prevail unless there is something “extraordinary” about the relationship between

Schrader and the children, and there is not.

{¶23} In Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d

1165, ¶ 11, quoting Troxel at 70, the Supreme Court of Ohio explained that a plurality of

the Troxel court “stated that if a fit parent’s decision regarding nonparental visitation

becomes subject to judicial review, ‘the court must accord at least some special weight

to the parent’s own determination.’ ” (Emphasis sic.). The Supreme Court of Ohio

adopted the plurality view and found that “Ohio courts are obligated to afford some Lawrence App. No. 12CA23 12

special weight to the wishes of parents of minor children when considering petitions for

nonparental visitation made pursuant to R.C. 3109.11 or 3109.12.” Harrold at ¶ 12.

The Harrold Court did not address motions for non-parental visitation and

companionship rights under R.C. 3109.051(B). However, we believe the “special

weight” rule would also apply to those motions.

{¶24} The Harrold court analyzed the R.C. 3109.051(D) factors in relationship to

the “special weight” rule. The court found that “special weight is required by R.C.

3109.051(D)(15), since the statute explicitly identifies the parents’ wishes regarding the

requested visitation or companionship as a factor that must be considered when making

[a] ‘best interest of the child’ evaluation.” Id. at ¶ 43. The court explained that this

requirement “is not minimized simply because Ohio has chosen to enumerate 15 other

factors that must be considered by the trial court in determining a child’s best interest in

the visitation context. Ohio’s nonparental-visitation statutes not only allow the trial court

to afford parental decisions the requisite special weight, but they also allow the court to

take into consideration the best interest of the child and balance that interest against the

parent’s desires.” Id.

{¶25} However, there is no requirement that a non-parent have an

“extraordinary” relationship with a child to obtain companionship or visitation rights

under R.C. 3109.051(B) against the parents’ wishes. And it is clear that the trial court

afforded McClintock’s wishes the requisite special weight. But ultimately, the court

implicitly concluded that granting Schrader companionship rights was in the best

interest of the children and that interest outweighed McClintock’s desires.

{¶26} In its judgment entry, the trial court explicitly stated that it was “well aware Lawrence App. No. 12CA23 13

that a parent’s wishes are to be afforded ‘special weight.’ ” The court noted that the

“primary objection” McClintock had to companionship time was that Schrader would

discuss her son’s incarceration and the facts of the case with the children. On appeal,

McClintock again emphasizes this objection to companionship time. McClintock also

states that she objects to companionship time because Schrader made a “conscious

choice” to fund Gould’s legal defense. (Appellant’s Br. 13). The court did not mention

this reason in its entry.

{¶27} However, the court did find that all the parties agreed Gould’s

incarceration should not be discussed with the children. The court specifically ordered

Schrader not to “talk about, or engage in any discussion in regards to her son, Eric

Gould, and shall not discuss any of the circumstances surrounding his incarceration.”

The court also stated that McClintock or her representative could be present at the

companionship times. Thus, it is clear the court took great pains to alleviate

McClintock’s concern about the children’s exposure to information about their father.

{¶28} McClintock also objected to companionship rights because of Schrader’s

lack of contact with her and her children after Gould’s criminal prosecution began. The

court acknowledged Schrader had not seen the children for approximately 27 months

prior to the initial hearing. But the court noted there was conflicting testimony about the

reason for this – Schrader claimed she did attempt to contact McClintock, but

McClintock described Schrader’s efforts as “lax.” However, according to the court even

McClintock agreed Schrader had a “good relationship” with the children that “continued

shortly after Mr. Gould was charged with GSI.” And McClintock agreed it was a “normal

grandparent relationship” taking into consideration the distance between McClintock’s Lawrence App. No. 12CA23 14

and Schrader’s homes. McClintock has not demonstrated that the court’s implicit

decision that it was in the children’s best interest to rekindle that good relationship by

way of two hours of visitation per month, which she or her representative can supervise,

was unreasonable, arbitrary or unconscionable. Accordingly, we overrule the second

assignment of error.

V. Conclusion

{¶29} Having overruled both assignments of error, we affirm the judgment

below.

JUDGMENT AFFIRMED. Lawrence App. No. 12CA23 15

Hoover, J., dissenting:

{¶30} I respectfully dissent from the principal opinion on assignment of error I;

and therefore, I would reverse the judgment of the trial court. I agree that R.C.

3109.051(B) is ambiguous; however, I would conclude that the change in circumstances

requirement does apply when a non-parent files a R.C. 3109.051(B)(1) motion for

visitation or companionship rights for the first time after a court issues a decree or final

order in the divorce or other statutorily enumerated proceeding.

{¶31} The primary goal of statutory interpretation, as set forth by the principal

opinion, is to give effect to the legislature’s intent. We do this by considering, among

other matters, the circumstances under which the statute was enacted, the legislative

history, and the consequences of a particular construction. See R.C. 1.49. R.C.

3109.051 was enacted by the legislature on May 31, 1990, “to specifically permit

grandparents and other relatives to receive reasonable companionship or visitation

rights with respect to certain types of children.” In re Adoption of Ridenour, 61 Ohio

St.3d 319, 326, 574 N.E.2d 1055 (1991), fn. 5; see also Jacobs v. Jacobs, 102 Ohio

App.3d 568, 573, 657 N.E.2d 580 (9th Dist.1995), abrogated on other grounds, (“On

May 31, 1990, R.C. 3109.051 was enacted specifically to allow grandparents and other

relatives to have visitation rights and generally ‘to make other changes in the child

visitation law.’ Title, Am.Sub.H.B. No. 15, 143 Ohio Laws, Part II, 1964.”). The key

word mentioned above is “reasonable.” The legislature apparently wanted to give

grandparents and other relatives an avenue to obtain reasonable companionship or

visitation rights. Lawrence App. No. 12CA23 16

{¶32} Under R.C. 1.42, we must read words and phrases in context and

construe them according to the rules of grammar and common usage. Here, had the

legislature intended the change of circumstances language to apply only when a motion

had been filed during the pendency of the divorce, and not when a motion had not been

previously filed, the legislators simply could have inserted a comma between the clause

“was not filed at that time” and the clause “or was filed at that time and the

circumstances in the case have changed.” However, no such comma exists in the

statutory language; and in interpreting the statute, the court should suppose the

absence is intentional. Thus, I believe Ms. McClintock's interpretation of the statute

more closely resembles the intention of the legislature; and I would conclude that a non-

parent must prove a change in circumstances if he or she is filing a motion for visitation

or companionship pursuant to R.C. 3109.051(B)(1) for the first time after a court issues

a decree or final order in the divorce or other statutorily enumerated proceeding.

{¶33} In addition, finality of cases may be undermined by the principal opinion's

interpretation of the statute. The principal opinion’s interpretation allows a non-parent to

file a request for companionship rights at any time so long as he or she has never filed a

pleading before and has been denied. For the parties, the children, and the courts,

when a non-parent is permitted to file at any time without proof of a change in

circumstances, litigation may be protracted as it was in this case.

{¶34} In this case, the trial court proceedings lasted for approximately four

years. The divorce was filed in August 2008. It took one year and nine months to

finalize the divorce, which occurred on May 5, 2010. Before the month was over, on

May 27, 2010, Schrader then filed her Motion for Companionship Time. This motion Lawrence App. No. 12CA23 17

was not decided until September 2012. No evidence of a change in circumstances

between May 5, 2010 and May 27, 2010 was presented. Schrader could easily have

filed her motion for companionship while the divorce case was pending. Instead, she

waited twenty-two days after the divorce was final to file her motion for companionship.

{¶35} When considering the sentence structure of the statute, it would appear

that a change of circumstances should be proven. In addition, I do not believe that

protracted litigation is what the legislature sought when it enacted the statute. Because

appellee had failed to demonstrate a change in circumstances in support of her post

divorce decree motion for companionship, I would sustain appellant’s first assignment of

error and reverse the decision of the trial court. Lawrence App. No. 12CA23 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

McFarland, P.J.: Concurs in Judgment Only. Hoover, J.: Dissents with Dissenting Opinion.

For the Court

BY: ____________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.