Waggoner v. Waggoner

675 N.E.2d 541, 111 Ohio App. 3d 1
CourtOhio Court of Appeals
DecidedMay 8, 1996
DocketNo. 95CA0040.
StatusPublished
Cited by15 cases

This text of 675 N.E.2d 541 (Waggoner v. Waggoner) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waggoner v. Waggoner, 675 N.E.2d 541, 111 Ohio App. 3d 1 (Ohio Ct. App. 1996).

Opinion

Slaby, Judge.

Cindy L. Waggoner, now known as Cindy L. Selan, appeals from the Wayne County Court of Common Pleas’ denial of her motion to reallocate parental rights and responsibilities. We affirm.

Cindy and Kevin Waggoner’s twelve-year marriage was dissolved in August 1989. The decree adopted the shared parenting plan submitted by the parties in which Cindy was named the residential parent of the three youngest children, Michelle, Amy and Victoria, and Kevin was named the residential parent of the three oldest children, Anita, Jessica, and Kevin, Jr. Contrary to the agreement, Cindy left the three youngest children with Kevin soon after the dissolution.

Kevin eventually moved for and, in January 1991, was granted temporary custody of all six children. In response, Cindy sought to reinstate the provisions of the original decree to permit the three youngest children to live with her. A home study was conducted, a guardian ad litem appointed, and a hearing was held. In August 1991, the court granted residential status to Kevin and ordered Cindy to pay child support in the amount of $5 per child per week.

In May 1992, Cindy moved to reallocate parental rights of all the children, but actually sought a change only for Anita, the oldest child. The court denied the motion. In March 1992, Kevin was forced to seek a court order to cause Cindy to return Jessica, the second oldest child, to his custody. Cindy concurrently filed a motion to have custody of Jessica granted to her because of alleged sexual abuse; finding no credible evidence of abuse, the court denied that motion. Although Cindy had not paid any child support to Kevin under the 1991 order, at about this time the court also denied a motion that Cindy be held in contempt because she had medical problems that prevented her from working.

*4 Finally, in July 1994, Cindy again sought to obtain custody of all six children, but then limited her request to only the girls. Finding that there had been “no change of circumstances to warrant [Cindy’s] request to modify,” the referee reported and recommended that her motion be denied. The court agreed with the referee and, over Cindy’s objections, adopted the report and recommendation in October 1994. It is from this last order that Cindy’s appeal is taken. She raises two related assignments of error, which we address in reverse order, but consider together.

Assignments of Error

“[II.] The trial court erred by placing a higher evidentary [sic ] burden for the change of parental rights upon [Cindy] than required by statute in that it required [Cindy] to present evidence that showed that there was a substantial change of circumstances instead of just a change of circumstances.”

“[I.] The trial court erred when it denied the motion of [Cindy] to change the residential parent’s status from [Kevin] to [Cindy] and the trial court’s reasoning for said denial is unreasonable, arbitrary, unconscionable, and manifestly against the weight of evidence.”

Cindy contends that the referee impermissibly increased her burden of proof by requiring her to demonstrate a “substantial change of circumstances” rather than a “change of circumstances” under R.C. 3109.04(E)(1)(a). Further, she contends that the referee incorrectly applied the law by resting his decision on the absence of proof that Cindy’s circumstances had changed. She argues that the referee ignored “key evidence” of changed circumstances. We find no merit in any of her arguments.

The standard of review to be applied by an appellate court on review of an order concerning modification of parental rights is “abuse of discretion.” Masters v. Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665, 666. To overrule the trial court’s decision, the court must have made “ ‘more than an error at law or judgment; [abuse of discretion] implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ ” Id., quoting Miller v. Miller (1988), 37 Ohio St.3d 71, 73-74, 523 N.E.2d 846, 848-49. Thus, the discretion afforded the trial court must be given the “utmost respect”; we presume, unless the record shows otherwise, that the court’s findings were correct. Id. at 74, 523 N.E.2d at 849.

Although extensive, the trial court’s discretion in domestic proceedings is not unlimited, but must be employed within the confines of the relevant statutory law. Id. Modification of a custody decree is governed by R.C. 3109.04(E)(1)(a), which states:

*5 “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 * * * that a change has occurred in the circumstances of the child, [or] his residential parent * * *, 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 * * *, unless a modification is in the best interest of the child and one of the following applies:
U ij; ;¡: *
“ * * * The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”

Pursuant to the statute, the court cannot order modification without evidence that a change in circumstances has occurred and that the child’s best interest is served by the modification. The change-in-circumstances requirement fosters continuity and stability in the child’s life. Jacobs v. Jacobs (1995), 102 Ohio App.3d 568, 576, 657 N.E.2d 580, 585-586. It also serves the court’s interest by discouraging relitigation of the same issues. Perz v. Perz (1993), 85 Ohio App.3d 374, 376, 619 N.E.2d 1094, 1096.

Unless modification is sought from a shared parenting order, the change in circumstances relates to the circumstances of the child or the residential parent. Clyborn v. Clyborn (1994), 93 Ohio App.3d 192, 195, 638 N.E.2d 112, 114-15. Moreover, the mere possibility of a change in the future will not ordinarily suffice to support modification. See, generally, Masters, 69 Ohio St.3d at 86, 630 N.E.2d at 667. Finally, in deciding whether the change in circumstances exists, the statute requires the court to weigh the harm against the advantages that would likely result from the change. Implicit in this balancing test is the recognition that disruption in a child’s regular residence and care is harmful; to balance that harm, a court must be able to justify the risk in part through the change-in-circumstances requirement. Thus, the courts have described the extent of the change that must be shown as “significant,” “substantial” and simply “sufficient” or “enough” to warrant modification. See, e.g., id.; Perz, 85 Ohio App.3d at 376, 619 N.E.2d at 1096.

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Cite This Page — Counsel Stack

Bluebook (online)
675 N.E.2d 541, 111 Ohio App. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waggoner-v-waggoner-ohioctapp-1996.