[Cite as Trudell v. Trudell, 2012-Ohio-5023.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
LISA J. TRUDELL, NKA, LISA J. RETTIG, CASE NO. 5-11-47 PLAINTIFF-APPELLEE,
v.
JAMES J. TRUDELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court Domestic Relations Division Trial Court No. 2005-DR-351
Judgment Affirmed
Date of Decision: October 29, 2012
APPEARANCES:
William E. Clark for Appellant
Bret A Spaeth for Appellee Case No. 5-11-47
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, James J. Trudell (“Father”), appeals the
judgment of the Hancock County Court of Common Pleas, Domestic Relations
Division, denying his motion to reallocate parental rights and responsibilities, and
finding that Lisa J. Trudell, nka Lisa J. Rettig (“Mother”), should remain the
primary residential parent. On appeal, the Father contends that the trial court
abused its discretion when it found that he failed to meet his burden of proving
that the proposed change would be in the children’s best interests and that the
advantage caused by the change would outweigh the harm. For the reasons set
forth below, the judgment is affirmed.
{¶2} The parties were married in 1994, and two children were born as issue
of the marriage: CJ in early 2000 and Rachel in late 2001. They were divorced on
December 18, 2006, when the children were approximately 5 and 7 years old. The
parties had agreed upon a Shared Parenting Plan which deemed each parent would
be the “residential parent” when the children were in their possession, and the plan
further outlined the time of “possession” during the school year, for vacations,
holidays, etc. During the school year, the children were to attend school in the
school district of the Mother’s residence and the Father would have parenting time
on alternating weekends, from Friday afternoon to Sunday afternoon. During the
summer school recess, the Father’s alternating weekend time was longer, from
Thursday afternoons to Monday afternoons. The Shared Parenting Plan also
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provided that “the residence of the children shall be in either Franklin, Hancock,
Lucas, or Wood counties and that the children will not be moved out of any of
those four (4) counties except by permission of the parent or the Court.” (Dec. 18,
2006 J.E.)
{¶3} At the time of the divorce, the children primarily resided with the
Mother in Columbus, Ohio, in Franklin County, where they had lived since the
spring of 2006. Two years later, in the spring of 2008, the Mother married James
Rettig (“Rettig” or “Step-Father”), and they moved to a new residence about a
mile away.
{¶4} On May 15, 2009, the Mother filed a notice of intent to relocate
herself and the children to Tampa, Florida, when Rettig had an opportunity to take
over his father’s financial management business, providing a substantial increase
in the family income. (Aug. 17, 2010 Amended J.E.) The Father did not consent
to the relocation, and the parties were unable to resolve the issue in mediation. On
September 15, 2009, the Mother filed for reallocation of parental rights and
responsibilities, requesting that she be named the residential parent; that the
children be permitted to move with her to Florida; and, that the Father be granted
companionship rights under Appendix K of the Hancock County Local Rules.
The Father also filed a motion, requesting the court to terminate the Shared
Parenting Plan and designate himself as the residential parent. Hearings were held
in July 2010. On August 17, 2010, the trial court granted the Mother’s motion,
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designating her as the residential parent and allowing the children to move to
Tampa, Florida. (Id.)
{¶5} In June of 2011, the Mother informed the Father that she, Rettig, and
the children were moving from their leased residence in North Tampa to another
residence in South Tampa, about 26 miles away. They were moving because there
was uncertainty as to whether the property owners had been paying the mortgage
and they were concerned that the home might be foreclosed upon. The move was
within the same county and the same Hillsborough County School District, but
Rachael would have to attend a different elementary school. CJ was going to be
changing schools anyway because he was going into junior high, so he would now
attend a junior high in the new neighborhood.
{¶6} On July 15, 2011, the Father filed another motion to reallocate custody
because he was concerned that the children were again “being uprooted from their
residence and school.” (Jul. 15, 2011 Motion, p. 2) The Father asserted that the
children have substantial ties in Ohio with him, with extended family members,
and many friends in the Toledo area. After spending summer visitation with him,
the Father represents that the children expressed that they did not wish to return to
Florida. The Father contends that the circumstances which caused the court to
originally allow the children to move to Florida have now changed. The trial court
had found that “the strength of the Florida-based school system the children would
attend and the overall receptiveness of the neighborhood in which they would
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live” were reasons to permit the children to move to Florida. (Aug. 17, 2010 J.E.,
p. 13) Rachael was diagnosed with ADHD and required special attention, and
now she will no longer be attending the same school. The Father also claimed that
the Mother “travels extensively” for her job and often spends time away from the
children. (Jul. 15, 2011 Motion, p. 2)
{¶7} The Mother’s response and her testimony at trial asserted that the
children did very well academically in the new Florida school system and that
their new schools were still within the same system and were also highly rated.
The Mother testified that the children were engaged in extra-curricular activities
and had made many friends in Florida. She only traveled overnight for her job
about eight nights in a year.
{¶8} The trial court appointed the same Guardian Ad Litem (“GAL”) that
had previously worked with the family. The court also held an in camera
interview with the children on August 17, 2011, and reviewed the transcript from
the July 2010 in camera interview.
{¶9} A hearing was held on October 5, 2011, and the trial court heard
testimony from: the Mother and Rettig; the Father and his fiancé; the Father’s
mother and sister; the children’s former guidance counselor; and Rachael’s
optometrist and her vision therapist.1 After considering all of the evidence, the
trial court found that there was a change of circumstances as to Rachael that was
1 Rachael had some vision problems which impacted her reading ability.
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sufficient to meet the threshold level necessary before a modification of custody
may be considered. See R.C. 39109.04(E)(1)(a). The trial court found that the
move would have a relatively minor impact on CJ, as he would have had to change
schools regardless. However, the trial court found that the move represented a
“substantial change” for Rachael, requiring her to once again change schools.2
(Nov. 29, 2011 J.E., p. 9)
{¶10} Having found that the first prong of the statutory requirement was
met, the trial court then reviewed the facts to determine whether modification of
parental rights would be in the best interests of the children and whether one of the
three factors in R.C. 3109.04(E)(1)(a) was applicable. After doing a detailed
analysis of all the facts and statutory factors, the trial court found that “the
advantages likely to be caused by a change in environment do not outweigh the
harm likely to be caused by such a change in environment, as set forth in R.C.
3109.04(E)(1)(a)(iii). As such [the Father] has failed to meet his burden of
proving the proposed change as to the allocation of parental rights and
responsibilities is in the children’s best interest.” (Nov. 29, 2011 J.E., p. 13) On
November 29, 2011, the trial court denied the Father’s motion to reallocate
parental rights and held that the previous judgment entry of the court was to
remain in effect. 2 The trial court found that Rachael’s academic performance improved significantly during her time at Pride Elementary in Florida (as compared to her previous Ohio school), despite her having some trouble initially adjusting to the new setting. It also stated that there was no testimony that Rachel was having any problems at her new school since the move, but noted that a child did not have to suffer any adverse consequences in order for a court to find a change of circumstances has occurred. (Nov. 29, 2011 J.E., p. 9, citing LaBute v. LaBute, 179 Ohio App.3d 696, 2008-Ohio-6190, ¶ 8 (3d.Dist).
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{¶11} It is from this judgment that the Father timely appeals, raising the
following two assignments of error for our review.
First Assignment of Error
The trial court erred and abused its discretion when it ignored probative evidence and held that [Father] failed to meet his burden of proof.
Second Assignment of Error
The trial court erred and abused its discretion when it held that [Father] failed to prove by a preponderance of the evidence that the advantage likely to be caused by naming him residential parent outweighs the harm likely to be caused by such a change in environment.
{¶12} In addition to her reply to the above assignments of error, the Mother
has also raised a cross assignment of error, pursuant to R.C. 2505.22:
Cross Assignment of Error
The trial court erred and abused its discretion in finding there to be a change in circumstances.
Law and Standard of Review
{¶13} The modification of parental rights and responsibilities is controlled
by R.C. 3109.04(E). This statute creates a rebuttable presumption in favor of
retaining the residential parent. R.C. 3109.04(E)(1)(a); Rohrbaugh v. Rohrbaugh,
136 Ohio App.3d 599, 604 (7th Dist.2000). Therefore, a court shall not modify a
parenting decree allocating parental rights unless it finds that, based on facts that
have arisen since the decree, there has been a change in circumstances of the child
or the child’s residential parent and modification of the decree is necessary to
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serve the child’s best interest. R.C. 3109.04(E)(1)(a). Additionally, the court
must find that one of the factors listed in R.C. 3109.04(E)(1)(a)(i), (ii), and (iii)
applies. R.C. 3109.04(F) provides a non-exclusive list of relevant factors to be
utilized in helping to determining what would be in a child’s best interest.
{¶14} Custody issues are some of the most difficult decisions a trial judge
must make. Therefore, those decisions rest within the sound discretion of the trial
court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v.
Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of
custody is subject to reversal only upon a showing of an abuse of that discretion.
Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found
to have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No.
9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–
Ohio–278, ¶ 17–18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.
“A reviewing court will not overturn a custody determination unless the trial court
has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v.
Pater, 63 Ohio St.3d 393 (1992).
{¶15} The reason for this standard of review is that the trial judge is in the
best position to view the demeanor, attitude, and credibility of each witness and to
weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially
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true in a child custody case, since there may be much that is evident in the parties’
demeanor and attitude that does not translate well to the record. Id. at 419.
[I]t is inappropriate in most cases for a court of appeals to independently weigh evidence and grant a change of custody. The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court’s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. * * *
(Citations omitted.) Miller, 37 Ohio St.3d at 74.
{¶16} In applying an abuse of discretion standard, a reviewing court is not
free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No.
10–10–10, 2010–Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128,
(1989). When reviewing a change of child custody proceedings, an appellate court
should be guided by the presumption that trial court’s findings were correct.
Miller at 74.
Father’s Assignments of Error
{¶17} In both of his assignments of error, the Father contends that the trial
court abused its discretion when it failed to find that the evidence supported his
motion for a change in parental rights and responsibilities. In the first assignment
of error, the Father claims that the trial court improperly considered certain facts,
and that it ignored evidence that it would be in the children’s best interest to live
with him in Toledo. In the second assignment of error, the Father asserts that the
trial court’s decision was against the manifest weight of the evidence because it
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failed to place appropriate weight on the factors that would show the benefit in
moving to Toledo would outweigh the harm caused by a change in environment
and custody.
{¶18} Our review of the record shows that both parents had concerns about
the other parent’s ability to provide the kind of parenting and environment that he
or she felt would be best for the children. For example, the Mother was concerned
that the Father would enroll CJ in a Catholic school, in contravention of their
agreement that he would be raised in the Protestant religion. The Mother also
believed that the Father was too lenient with the children and that he was not
diligent in insisting that school work was properly completed. The Father had
concerns that the children were moving too often, that the Mother sometimes
traveled overnight for business, and that the children were having issues in
adjusting to living with their new stepfather. However, none of the issues that
either parent raised indicated that the children’s health, safety, and well-being
were not being appropriately taken care of by both of the parents. (Tr. pp. 17, 30 –
counselor affirming that there was no evidence of abuse or any reason to contact
children’s services)
{¶19} This case was replete with positive evidence that both parents love
the children very much, want to provide the best care and upbringing possible, and
that either parent would be a competent, capable, and caring residential parent.
The evidence showed numerous benefits that the children would have with each
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parent. There would be some advantages and some disadvantages for the children,
regardless of which parent was designated the residential parent. The trial court
found that the evidence was not sufficient to overcome the presumption in favor of
retaining the current residential parent. See Rohrbaugh, 136 Ohio App.3d at 604.
{¶20} The record demonstrates that the trial court carefully considered all
of the relevant evidence and applicable statutory factors and took the
responsibility of its decision very seriously. The trial court spent a considerable
amount of time talking to the children during two in camera interviews in 2010
and 2011. It analyzed all of the evidence and factors in a detailed fourteen-page
decision. “Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as being
against the weight of the evidence by a reviewing court.” Bechtol v. Bechtol, 49
Ohio St.3d 21 (1990), at the syllabus.
{¶21} The trial court has been involved with these parties, and in making
decisions concerning the best interests of these children since 2005. The trial
court was in a superior position to evaluate the weight of the evidence and judge
the credibility, demeanor and motivation of the various witnesses. See Malone v.
Malone, 3d Dist. No. 13-10-39, 2011-Ohio-2096, ¶ 14. This is especially true in a
child custody case, since there may be much that is evident in the parties'
demeanor and attitude that does not translate well to the record. Id.; Davis, 77
Ohio St.3d at 419. It is not our position to weigh the evidence or substitute our
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judgment for that of the trial court. See Miller, 37 Ohio St.3d at 74; Daniels v.
Daniels, 3d Dist. No. 11-08-10, 2009-Ohio-784, ¶ 14.
{¶22} Based on the above, we find that there was ample competent and
credible evidence in the record to support the trial court’s decision. We find no
abuse of discretion in denying the Father’s motion to modify parental rights and
responsibilities. The Father’s first and second assignments of error are overruled.
Mother’s Cross-Assignment of Error
{¶23} In her cross assignment of error, the Mother contends that the trial
court erred when it found that a “change of circumstances” of a child or the
residential parent had occurred since the prior order went into effect on November
16, 2010. See R.C. 3109.04. The Mother asserts that the Father failed to meet his
burden of proving this threshold requirement by a preponderance of the evidence,
and therefore, the trial court erred in even considering a change in parental rights
within less than a year of its previous order.
{¶24} Based upon our disposition of the Father’s assignments of error,
resulting in an affirmance of the trial court’s decision, this defensive assignment of
error is moot and need not be considered. See Glidden Co. v. Lumbermens Mut.
Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, ¶¶ 31-32; Parton v. Weilnau, 169
Ohio St. 145, 158 N.E.2d 719, (1959) paragraph seven of the syllabus (We may
consider an appellee's cross-assignment of error “only when necessary to prevent a
reversal of the judgment under review.”)
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{¶25} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW, P.J. concurs.
ROGERS J., Concurring separately.
{¶26} I concur with the result reached by the majority, but for different
reasons. I would sustain Father’s assignments of error because the trial court
analyzed the issues in an improper manner. The consequence of sustaining
Father’s assignments would be reversal of the trial court’s judgment. However,
because I would sustain the cross-assignment of error, which argues that the trial
court erred in finding that there was a change of circumstances, I concur in
affirming the judgment.
{¶27} Procedurally, it is necessary to consider Father’s assignments of error
first, as the cross-assignment need only be considered for the purpose of
preventing a reversal of the appealed judgment. See App.R. 3(C)(2).
R.C. 3109.04 reads, 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
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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.
{¶28} The last sentence of (E)(1)(a) requires that “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” and then lists three additional (and alternative) criteria.
Therefore, if the trial court finds a change of circumstances, it must next consider
the best interests of the child. If the best interest requirement is met, then, and
only then, will the trial court need to consider whether the “harm likely to be
caused by a change of environment is outweighed by the advantages of the change
of environment to the child.”
This court has previously stated:
When deciding whether a modification of custody is appropriate, the court must determine three things. (1) Has there been a change in circumstances? (2) Is this modification in the best interest of the child? (3) Will the harm that will result from the change be outweighed by the benefits that will result from the change? (Emphasis added.) Clark v. Smith, 130 Ohio App.3d 648, 653 (3d Dist. 1998).
14 Case No. 5-11-47
{¶29} In this case, after finding that a change of circumstances existed, the
trial court found that “the advantages likely to be caused by such a change in
environment do not outweigh the harm likely to be caused by such a change * * *.
As such [the father] has failed to meet his burden of proving the proposed change
* * * is in the children’s best interest.” Nov. 29, 2011 Judgment Entry, p. 13.
Apparently the trial court reasoned that a failure to meet a test of harm versus
advantages defeats the best interest issue, when logically the trial court was
required to first determine best interests before getting to the harm versus
advantages issue. See Eatherton v. Behringer, 3d Dist. No. 13-11-12, 2012-Ohio-
1584, ¶ 14, citing Loudermilk v. Lynch, 11th Dist. Nos. 2002-A-0044, 2002-A-
0045, 2004-Ohio-5299, ¶ 19 (the trial court must consider each of the three steps
in R.C. 3109.04(E)(1)(a) in the order listed).
{¶30} Therefore, the trial court improperly applied the statute in this case.
{¶31} Furthermore, it is logical that once the movant has demonstrated a
change of circumstances, and satisfied the trial court as to best interests of the
child, then the burden of going forward would shift to the current residential
parent to demonstrate that the harm caused by the change would outweigh the
advantages of the change of environment to the child.3 Because the statute reads
“harm likely to be caused * * * is outweighed by the advantages * * * to the child”
it would seem illogical to require the movant to prove the harm, and one would 3 The reference here is limited to the consideration required by R.C. 3109.04(E)(1)(a)(iii) because (a)(i) and (a)(ii) are inapplicable to this case.
15 Case No. 5-11-47
think that having proven best interests, the advantages are already in evidence,
although further evidence on the issue should not be excluded. Here, the trial
court improperly placed the burden on the movant/Father.
{¶32} Therefore, I would sustain Father’s assignments of error, which then
opens the door to consideration of Mother’s cross-assignment of error pursuant to
App.R. 3(C)(2).
The Ohio Supreme Court has stated:
The clear intent of that statute is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the children a ‘better’ environment. The statute is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment. Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997), quoting Wyss v. Wyss, 3 Ohio App. 3d 412, 416 (10th Dist. 1982).
{¶33} Further, the Supreme Court has stated that: “[c]learly, there must be a
change of circumstances to warrant a change of custody, and the change must be a
change of substance, not a slight or inconsequential change.” (Emphasis sic.)
Flickinger at 418.
{¶34} The facts of this case do not warrant a finding of a change of
substance. The trial court’s minuscule statement as to a change of circumstances
was limited to Rachel’s “once again” having to change schools. Apparently the
trial court was concerned that moving 26 miles within the same city and remaining
in the same school district was more traumatic to Rachel than moving from Ohio
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to Florida and away from her friends and father had been one year earlier. This
conclusion of a change of circumstances comes in the same breath where the trial
court finds no change affecting C.J. The logic escapes me.
{¶35} It is also remarkable that the trial court made reference to the fact
that if Father was named the residential parent he might enroll the children in a
Catholic school contrary to the original shared parenting order which provided
“that the children be raised in the Protestant/Reformation church.” Nov. 29, 2011
Judgment Entry, p. 7. However, that same shared parenting order also provided
that the children continue to reside in the state of Ohio, but just one year earlier
that proviso was of no consequence to the trial court. If there was some logic
behind the trial court’s reference to the shared parenting order in this case when it
is no longer in effect, but to ignoring it in the prior hearing a year earlier when it
was still in effect, I have failed to find it in the trial court’s decision.
{¶36} Although I disagree with the majority’s disposition of Father’s
assignments of error, I would sustain Mother’s cross-assignment of error and
affirm the judgment of the trial court.
/hlo