Well v. Well

591 N.E.2d 843, 70 Ohio App. 3d 606, 1990 Ohio App. LEXIS 5945

• Court: Ohio Court of Appeals
• Decided: December 13, 1990
• Docket: No. 1614.
• Status: Published

Opinions

Grey, Judge.

This is an appeal from a judgment of the Ross County Common Pleas Court granting Michael Well’s motion to modify custody by awarding him custody of the minor children, Michael (“Mick”) and Jacob (“Jake”). We reverse.

The record reveals the following facts. On July 30, 1986, the parties were divorced by a decree of divorce granted to Kendra. Pursuant to the decree, Kendra received custody of the minor children, Mick and Jake. After the divorce, Kendra and the children lived with Kendra’s parents while she worked in Chillicothe.

In November 1987, Kendra began working in Columbus. Around the same time, she moved out of her parents’ home, due to illnesses, and eventually moved in with her sister and brother-in-law, Vicki and Rick Stafford, in Bainbridge, Ohio. Because her job required her to work late hours, Kendra often stayed in Columbus overnight.

On March 4, 1988, Michael filed a motion for a change of custody. Prior to a hearing on the matter, the trial court ordered a psychological evaluation of all of the parties involved. This report was submitted and considered by the court.

The matter came on for hearing on March 23 and 24, 1989. David Tennenbaum, the psychologist who performed the evaluation, testified, as did family members and friends of both parties.

There was conflicting testimony concerning the amount of time Kendra spent in Columbus as well as the amount of care and time she gave to Mick and Jake. There was no evidence presented that the minor children’s present environment was not suitable or that the children were “endangered” by their present living situation.

On June 21, 1989, the trial court filed its entry granting Michael Well’s motion for change of custody. On September 12, 1989, the trial court stayed its change of custody order pending appeal to this court.

Kendra Well appeals and assigns four errors, which we will treat jointly.

“FIRST ASSIGNMENT OF ERROR

“The trial court abused its discretion in finding that the environment of the custodial parent endangers the minor children, and erred as a matter of law in changing the custody of the minor children when there were insufficient facts to make a determination that the children’s present environment significantly endangers the children physically, morally, or emotionally.

“SECOND ASSIGNMENT OF ERROR

“The trial court erred as a matter of law in changing the custody of the minor children when there was no finding by the trial court that the harm likely to be caused by the change of environment is outweighed by the advantages of the change of environment to the children.

“THIRD ASSIGNMENT OF ERROR

“The trial court erred as a matter of law in changing the custody of the minor children when there was no finding by the trial court that a change was in the best interest of the minor children in accordance with Section 3109.-04(C), Ohio Revised Code.

“FOURTH ASSIGNMENT OF ERROR

“The trial court abused its discretion in finding that there has been a change of circumstances sufficient to support a change of custody.”

Appellant’s basic assertion in her four assignments of error is that the trial court erred in granting Michael Well’s motion because there was insufficient evidence to support a change of custody pursuant to the relevant statutory sections. We agree.

R.C. 3109.04(B)(1)(c) provides in pertinent part:

“[T]he court shall not modify a prior custody decree 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, his custodian, or either joint custodian, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian or both of the joint custodians designated by the prior decree, unless one of the following applies:

(( * * *

“(c) The child’s present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”

Thus, in order to modify a custody decree, there must be a finding by the court that the child’s present environment endangers the child and that the harm likely to be caused by a change of custody is outweighed by the advantage resulting from a change of custody.

Below, there was conflicting evidence presented as to the amount of time Kendra Well spent with her children. However, no one, not even the psychologist in his report or in his testimony, could state that the children were endangered by their present living situation. However, despite the lack of such evidence, the trial court found that the children, Mick and Jake, were suffering emotional harm from an unstable home situation. The record does not, however, support this finding.

In sum, the evidence in this case establishes only that appellant’s situation was typical of a working divorced mother, i.e., that she relied on her family to help care for her children while she worked. Appellee’s evidence, in sum, was that the children would be better off with him. “Better off” is not a statutory standard for a change of custody.

Judgments supported by some competent credible evidence going to all the essential elements of a case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Masitto v. Masitto (1986), 22 Ohio St.3d 63, 22 OBR 81, 488 N.E.2d 857. Here, there is no evidence in the record that Mick and Jake Well are endangered either physically, mentally, or emotionally by the present living arrangements with the Staffords. Thus, pursuant to Masitto, supra, the trial court’s judgment was against the manifest weight of the evidence. Kendra Well’s assignments of error are well taken and are sustained.

The judgment is reversed and the cause is remanded with orders to overrule Michael Well’s motion for change of custody.

Judgment reversed.

Homer E. Abele, P.J., concurs. Harsha, J., dissents.