Starr v. Statler-Houchin ( 2024 )

[Cite as Starr v. Statler-Houchin, 2024-Ohio-4628.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
JACK B. STARR,
CASE NO. 4-23-18
PETITIONER-APPELLEE,
v.
BRENAH STATLER-HOUCHIN, OPINION
PETITIONER-APPELLANT.
Appeal from Defiance County Common Pleas Court
Juvenile Division
Trial Court No. 34374
Judgment Affirmed
Date of Decision: September 23, 2024
APPEARANCES:
Timothy C. Holtsberry for Appellant
Laurel A. Kendall for Appellee
Case No. 4-23-18
ZIMMERMAN, J.
{¶1} Petitioner-appellant, Brenah Statler-Houchin (“Statler-Houchin”),
appeals the November 9, 2022 and January 19, 2023 (interlocutory) decisions of the
Defiance County Court of Common Pleas, Juvenile Division, denying her motions
to dismiss and the trial court’s October 12, 2023 decision reallocating parental rights
and responsibilities and designating petitioner-appellee, Jack B. Starr (“Starr”), as
the residential parent and legal custodian of the parties’ minor child. For the reasons
that follow, we affirm.
{¶2} Starr and Statler-Houchin, who were never married, had one child, J.S.
(born in 2019), during their relationship. On June 12, 2020, Starr and Statler-
Houchin filed a joint petition to establish their parental rights and responsibilities of
J.S. Starr and Statler-Houchin entered into a shared-parenting plan by consent entry
on July 1, 2020. Correspondingly, the trial court issued a shared-parenting decree
in which it ordered Starr and Statler-Houchin to share legal and residential custody
of J.S.
{¶3} However, on March 8, 2022, Starr filed a motion to reallocate their
parental rights and responsibilities in which he requested the trial court to designate
him as the residential parent and legal custodian of J.S. That same day, Starr filed
a motion requesting that the trial court cite Statler-Houchin into court to show cause
why she should not be found in contempt for violating the parties’ shared-parenting
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plan. Starr also filed a motion requesting that the trial court appoint a guardian ad
litem (“GAL”). The trial court’s magistrate appointed a GAL.
{¶4} On May 20, 2022, Statler-Houchin filed a motion to dismiss, arguing
that the trial court “lacks jurisdiction as the mother and child have been residents of
the State of Indiana since before and at the initiation of this case.” (Doc. No. 23).
Starr filed a memorandum in opposition to Statler-Houchin’s motion to dismiss on
June 8, 2022. Following a hearing on June 16, 2022, the trial court’s magistrate
denied Statler-Houchin’s motion to dismiss after concluding that J.S. “lived in
Defiance, Ohio within six months prior to commencement of legal proceedings and
Ohio had home state jurisdiction pursuant to R.C. 3127.15 and the [Uniform Child
Custody Jurisdiction and Enforcement Act (”UCCJEA”)].” (Doc. No. 28). The trial
court’s magistrate further reasoned that Statler-Houchin “never initiated any legal
proceedings in the State of Indiana . . . and did not object to jurisdiction in this
matter until [Starr] re-opened the case requesting modification of custody.” (Id.).
{¶5} Statler-Houchin filed her objections to the magistrate’s decision on June
30, 2022. Starr filed a memorandum in opposition to Statler-Houchin’s objections
to the magistrate’s decision on October 6, 2022. On October 14, 2022, Statler-
Houchin filed her reply to Starr’s memorandum in opposition to her objections to
the magistrate’s decision. On November 9, 2022, the trial court overruled Statler-
Houchin’s objections to the magistrate’s decision denying her motion to dismiss.
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{¶6} Statler-Houchin filed a notice of appeal from the trial court’s decision
overruling her objections to the magistrate’s decision denying her motion to dismiss
on November 29, 2022. On December 15, 2022, this court dismissed Statler-
Houchin’s appeal after concluding that we lacked jurisdiction to consider it for lack
of a final, appealable order.
{¶7} On December 22, 2022, Starr dismissed (without prejudice) his
contempt citation against Statler-Houchin for violating the parties’ shared-parenting
plan.
{¶8} On January 9, 2023, Statler-Houchin once again filed her motion to
dismiss in which she again argued that the trial court “lacks jurisdiction as the
mother and child have been residents of the State of Indiana since before and at the
initiation of this case.” (Doc. No. 55). After reasoning that her “motion essentially
raises the same issues as were previously addressed by [the] Court in the Judgment
Entry filed on November 9, 2022,” the trial court denied Statler-Houchin’s motion
to dismiss. (Doc. No. 56).
{¶9} The GAL filed a report on June 30, 2023 in which he recommended that
Starr “be named residential parent and legal custodian of [J.S.].” (Doc. No. 65).
{¶10} After a hearing on July 12, 2023, the trial court’s magistrate on August
14, 2023 concluded that, “because the parents live an hour away from each other
and [J.S.] will begin attending preschool,” it is in J.S.’s best interest that Starr “be
named the residential parent of [J.S.] for school enrollment and attendance
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purposes.” (Doc. No. 71). Even though the trial court issued a decision adopting
the magistrate’s decision on August 28, 2023, Statler-Houchin filed her objections
to the magistrate’s decision that same day. After being granted leave, Starr filed
(instanter) a memorandum in opposition to Statler-Houchin’s objections to the
magistrate’s decision on September 18, 2023. Nevertheless, because Statler-
Houchin failed to file a transcript of the July 12, 2023 proceedings before the
magistrate with the trial court, the trial court, in its independent review of the matter,
overruled Statler-Houchin’s objections to the magistrate’s decision on October 12,
2023. (Doc. No. 86).
{¶11} Statler-Houchin filed her notice of appeal on November 7, 2023. She
raises three assignments of error for our review.
First Assignment of Error
An Ohio Juvenile Court Cannot Acquire Jurisdiction Of A Child
Custody Case Through Waiver Or Consent When The Mother
And Child Are Residents Of Another State
Second Assignment of Error
Evidence Was Insufficient To Find That The Trial Court Has
Jurisdiction Over A Child Custody Case When The Subject Child
And Its Mother Have Been Residents Of The State Of Indiana For
The Child’s Entire Life
{¶12} In her first and second assignments of error, Statler-Houchin
challenges the jurisdiction of the trial court to consider this case. Specifically,
Statler-Houchin argues that the trial court did not have subject-matter jurisdiction
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over this case since she and J.S. “had been exclusively living in Indiana for
approximately two months when the consent judgment entry was filed in July
2020.” (Appellant’s Reply Brief at 4).
Standard of Review
{¶13} Generally, “[a]n appellate court conducts a de novo review of a trial
court’s determination regarding the existence of subject matter jurisdiction, whether
the trial court has or lacks jurisdiction in the first place, because such determination
is a matter of law.” Plaza v. Kind, 2018-Ohio-5215, ¶ 20 (3d Dist.). “De novo
review is independent and without deference to the trial court’s determination.”
ISHA, Inc. v. Risser, 2013-Ohio-2149, ¶ 25 (3d Dist.).
{¶14} However, even though “a de novo standard of review is applied when
determining the issue of the trial court’s subject matter jurisdiction, once the subject
matter jurisdiction is established, a trial court’s decision as to whether to exercise
its jurisdiction pursuant to the UCCJEA should only be reversed if the court
committed an abuse of discretion.” Martindale v. Martindale, 2016-Ohio-524, ¶ 35
(4th Dist.). See also R.C. 3217.21 (granting Ohio courts the discretion to decline
jurisdiction when the court determines that a court of another state is a more
convenient forum). An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
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Analysis
{¶15} “Subject-matter jurisdiction is the power of a court to entertain and
adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 2014-Ohio-
4275, ¶ 19. “‘Because subject-matter jurisdiction goes to the power of the court to
adjudicate the merits of a case, it can never be waived and may be challenged at any
time.’” In re R.M., 2013-Ohio-3588, ¶ 77 (4th Dist.), quoting Pratts v. Hurley,
2004-Ohio-1980, ¶ 11.
{¶16} “R.C. 2151.23(A)(2) provides that the juvenile court has exclusive
original jurisdiction to determine custody of a child who is not a ward of a court of
this state.” Id. at ¶ 78. “R.C. 2151.23(F)(1) further provides, however, that a
juvenile court must exercise that jurisdiction in accordance with R.C. Chapter
3127,” the UCCJEA. Id., citing Rosen v. Celebrezze, 2008-Ohio-853, ¶ 46
(explaining that, even though Ohio’s statutory scheme provides a juvenile court with
“basic statutory jurisdiction to determine custody matters[,] a more specific statute
like R.C. 3127.15 [may] patently and unambiguously divest[ ] the court of such
jurisdiction”).
{¶17} “The UCCJEA defines a trial court’s subject-matter jurisdiction to
issue a child custody determination.” Id. at ¶ 79, citing Rosen at ¶ 44 (stating that
an erroneous exercise of jurisdiction under the UCCJEA “is not a mere error in the
exercise of jurisdiction; it is a defect in the Ohio court’s subject-matter
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jurisdiction”). “Thus, claimed errors in exercising jurisdiction under the UCCJEA
‘cannot be waived.’” Id., quoting Rosen at ¶ 45.
{¶18} R.C. 3127.15(A) sets forth “the exclusive jurisdictional basis for
making a child custody determination by a court of this state.” R.C. 3127.15(B).
The statute provides, in its relevant part, as follows:
(A) Except as otherwise provided in section 3127.18 of the Revised
Code, a court of this state has jurisdiction to make an initial
determination in a child custody proceeding only if one of the
following applies:
(1) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and
the child is absent from this state but a parent or person acting as a
parent continues to live in this state.
(2) A court of another state does not have jurisdiction under division
(A)(1) of this section or a court of the home state of the child has
declined to exercise jurisdiction on the basis that this state is the more
appropriate forum under section 3127.21 or 3127.22 of the Revised
Code, or a similar statute of the other state, and both of the following
are the case:
(a) The child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction under division (A)(1) or (2) of this
section have declined to exercise jurisdiction on the ground that a
court of this state is the more appropriate forum to determine the
custody of the child under section 3127.21 or 3127.22 of the Revised
Code or a similar statute enacted by another state.
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(4) No court of any other state would have jurisdiction under the
criteria specified in division (A)(1), (2), or (3) of this section.
R.C. 3127.15(A).1
{¶19} “R.C. 3127.15(A) thus provides a court with four types of jurisdiction
to make the initial determination in a child custody proceeding: (1) home-state
jurisdiction, (2) significant-connection jurisdiction, (3) jurisdiction because of
declination of jurisdiction, and (4) default jurisdiction.” In re R.M. at ¶ 81. “The
primary purpose of the UCCJEA is ‘“to avoid jurisdictional competition and conflict
with courts of other jurisdictions” in custody matters.’” Plaza, 2018-Ohio-5215, at
¶ 17 (3d Dist.), quoting Rosen at ¶ 20, quoting In re Palmer, 12 Ohio St.3d 194, 196
(1984). Therefore, the home state is given jurisdictional priority and exclusive
continuing jurisdiction under the UCCJEA. In re R.M. at ¶ 81.
{¶20} Based on our review of the record, we conclude that the trial court did
not abuse its discretion by electing to exercise jurisdiction in this case because it had
subject-matter jurisdiction under the UCCJEA. That is, the trial court possessed
home-state jurisdiction under R.C. 3127.15(A)(1) since Starr and Statler-Houchin
asserted that Ohio was J.S.’s home state “for more than six (6) months immediately
preceding the filing” of this case when they filed their initial petition to establish
parental rights and responsibilities. (Doc. No. 1).
1
A “‘[c]hild custody proceeding’ means a proceeding in which legal custody, physical custody, parenting
time, or visitation with respect to a child is an issue. [It] may include a proceeding for * * * neglect, abuse,
[or] dependency * * * .” R.C. 3217.01(A)(3).
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{¶21} “While parties to a case may concede facts that, if believed, grant a
trial court jurisdiction, they cannot create subject-matter jurisdiction by any such
concession, and a court cannot be bound by ‘any agreement, stipulation, or
concession from the parties as to what the law requires.’” Hignight v. Knepp, 2024-
Ohio-1708, ¶ 18 (6th Dist.), quoting State ex rel. Steffen v. Myers, 2015-Ohio-2005,
¶ 16. See also Mullinix v. Mullinix, 2023-Ohio-1053, ¶ 20 (10th Dist.)
(acknowledging that “[p]arties to an action may not confer jurisdiction on a court
by mutual consent” but may “stipulate to facts that are sufficient to confer
jurisdiction on the court”).
Under, R.C. 3127.01(B)(1) defines “home state” as
the state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately preceding the
commencement of a child custody proceeding and, if a child is less
than six months old, the state in which the child lived from birth with
any of them. A period of temporary absence of any of them is counted
as part of the six-month or other period.
The determination of whether Ohio is a child’s home state requires the trial “court
to decide whether the facts presented by the parties fit the definition of ‘home state’
in R.C. 3127.01(B)(7) . . . .” Hignight at ¶ 19. Importantly, such determination “is
a legal issue that the court must decide—not a factual issue” to which the parties
can stipulate. Id.{¶22} Likewise, the doctrine of “‘[j]udicial estoppel precludes a party from
taking a position inconsistent with a position that it successfully and unequivocally
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asserted in a prior judicial proceeding.’” Id. at ¶ 20, quoting Independence v. Office
of the Cuyahoga Cty. Executive, 2014-Ohio-4650, ¶ 29. “It is intended to prevent a
party ‘“from abusing the judicial process through cynical gamesmanship, achieving
success on one position, then arguing the opposing to suit an exigency of the
moment.”’” Id., quoting Greer-Burger v. Temesi, 2007-Ohio-6442, ¶ 25, quoting
Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998). The doctrine
of judicial estoppel “is an equitable doctrine that a court has discretion to invoke.”
Id., citing Independence at ¶ 29.
{¶23} Here, Statler-Houchin is judicially estopped from raising her
jurisdictional argument since she conceded the facts underlying the legal conclusion
that Ohio was J.S.’s home state at the time she and Starr commenced this matter.
That is, since Statler-Houchin conceded that J.S. lived in Ohio for at least six months
immediately preceding the commencement of this case—a fact underlying the legal
conclusion that Ohio is the home state—Statler-Houchin cannot allege that the trial
court was without jurisdiction to consider the matter. Id. at ¶ 19 (distinguishing that
the concession to “a legal conclusion (i.e., that Ohio was the home state), which is
not binding on [the trial court,] cannot, by itself, give [the trial court] jurisdiction
that does not otherwise exist” but that a concession “that the child[] lived in Ohio at
the time of filing” will resolve any jurisdictional dispute).
{¶24} Indeed, it is evident that the trial court relied on Starr and Statler-
Houchin’s representation regarding J.S.’s residency at the time they filed their joint
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petition to establish their parental rights and responsibilities of J.S. Compare id. at
¶ 21 (analyzing that there was “no evidence that Hignight’s former attorney told the
juvenile court that Ohio was the children’s home state with some nefarious intent,
or that [the trial court] relied on the former attorney’s representation to determine
that [it] had jurisdiction”). Therefore, the trial court possessed home-state
jurisdiction under R.C. 3127.15(A)(1). Accordingly, the trial court did not abuse its
discretion by exercising its jurisdiction under the UCCJEA.
{¶25} Furthermore, to the extent that Statler-Houchin challenges the trial
court’s continuing jurisdiction to resolve Starr’s motion to reallocate their parental
rights and responsibilities, we likewise reject that argument. Importantly, the
parties’ shared-parenting plan was adopted under R.C. 3109.04(D)(1)(a)(i), which
relates to situations in which “both parents jointly make the request in their pleading
or jointly file the motion and also jointly file the plan.” At the same time, the trial
court issued a shared-parenting decree awarding residential and legal custody to
Starr and Statler-Houchin. Again, it is uncontroverted that Statler-Houchin
consented to the trial court’s initial shared-parenting plan and decree. See LaCourse
v. LaCourse, 2023-Ohio-972, ¶ 15 (6th Dist.).
{¶26} Thereafter, Starr filed a motion requesting that the trial court modify
that custody order by issuing an “an Order modifying, suspending, or supervising
the parenting time for [Statler-Houchin] until recommendations can be made about
further contact, as such a change is in the minor child’s best interest.” (Emphasis
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added.) (Doc. No. 6). Importantly, “[a]fter the court has journalized an initial
decree allocating parental rights and responsibilities, the court retains jurisdiction to
modify the decree.” Hanna v. Hanna, 2008-Ohio-3523, ¶ 10 (10th Dist.).
Therefore, since Starr was seeking modification of the initial shared-parenting
decree, Statler-Houchin’s argument challenging the continuing jurisdiction of the
trial court is specious.
{¶27} Statler-Houchin’s first and second assignments of error are overruled.
Third Assignment of Error
Splitting Of Siblings Is Not Favored By Ohio Law
{¶28} In her third assignment of error, Statler-Houchin challenges the trial
court’s reallocation of parental rights and responsibilities. In particular, Statler-
Houchin argues that the trial court abused its discretion by designating Starr as the
residential parent and legal custodian of J.S. because such designation resulted in
“splitting” J.S. from attending school with his half-sister. (Appellant’s Brief at 11).
Standard of Review
{¶29} “‘Decisions concerning child custody matters rest within the sound
discretion of the trial court.’” Krill v. Krill, 2014-Ohio-2577, ¶ 26 (3d Dist.),
quoting Walker v. Walker, 2013-Ohio-1496, ¶ 46 (3d Dist.). “‘“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.”’” Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 2008-Ohio-
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5538, ¶ 25 (3d Dist.) and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus.
“‘Accordingly, an abuse of discretion must be found in order to reverse the trial
court’s award of child custody.’” Id., quoting Walker at ¶ 46. An abuse of discretion
suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶30} A juvenile court is to exercise its jurisdiction in a child-custody matter
in accordance with R.C. 3109.04. R.C. 2151.23(F)(1). “R.C. 3109.04 establishes
the process for allocating parental rights and responsibilities between the parents of
a minor child.” Bruns v. Green, 2020-Ohio-4787, ¶ 8. See also Fisher v.
Hasenjager, 2007-Ohio-5589, ¶ 24 (noting that a court “allocates parental rights and
responsibilities when it issues a shared-parenting order”). That statute “provides for
options available to the trial court when allocating parental rights and
responsibilities: ‘primarily to one of the parents’ (R.C. 3109.04(A)(1)), or ‘to both
parents’ (R.C. 3109.04(A)(2)).” Id. When considering the parental rights and
responsibilities of unmarried parents, the statute directs that
[a]n unmarried female who gives birth to a child is the sole residential
parent and legal custodian of the child until a court of competent
jurisdiction issues an order designating another person as the
residential parent and legal custodian. A court designating the
residential parent and legal custodian of a child described in this
section shall treat the mother and father as standing upon an equality
when making the designation.
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R.C. 3109.042(A). “In custody disputes between unmarried parents, ‘the court must
determine custody based on the best interests of the child pursuant to R.C.
3109.04(B)(1).’” In re Fair, 2009-Ohio-683, ¶ 39 (11th Dist.), quoting In re Knight,
2003-Ohio-7222, ¶ 16 (11th Dist.).
{¶31} “R.C. 3109.04 also sets forth the procedures to be followed in the
event that either a parent or the trial court finds it necessary to make changes to a
shared-parenting decree or plan.” Bruns at ¶ 9. See also Fisher at ¶ 11 (addressing
that “[o]nce a shared-parenting decree has issued, R.C. 3109.04(E) governs
modification of the decree”). “Under R.C. 3109.04(E)(1)(a), a trial court may
modify a decree that allocates parental rights and responsibilities for the care of
children, including shared-parenting decrees.” Bruns at ¶ 10. That statute provides,
in its relevant part that
[t]he 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.
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R.C. 3109.04(E)(1)(a).
{¶32} When “allocating the parental rights and responsibilities, the court
‘shall take into account that which would be in the best interest of the child[ ].’”
August v. August, 2014-Ohio-3986, ¶ 22 (3d Dist.), quoting R.C. 3109.04(B)(1).
R.C. 3109.04(F)(1) “spell[s] out ten factors that the court shall consider to determine
the best interest of the child . . . .” Id. at ¶ 23.
In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns
as to the allocation of parental rights and responsibilities concerning
the child, the wishes and concerns of the child, as expressed to the
court;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect
the child’s best interest;
(d) The child’s adjustment to the child’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 companion rights;
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(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;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case in
which a child has been adjudicated an abused or a neglected child,
previously has been determined to be the perpetrator of the abusive or
neglectful act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of the
Revised Code or a sexually oriented offense involving a victim who
at the time of the commission of the offense was a member of the
family or household that is the subject of the current proceeding;
whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe that
either parent has acted in a manner resulting in a child being an abused
child or a neglected child;
(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). “Additionally, when determining whether shared parenting is
in the best interest of the child, the trial court must consider R.C. 3109.04(F)(2) . . .
.” Suever v. Schmidt, 2022-Ohio-4451, ¶ 20 (3d Dist.). R.C. 3109.04(F)(2) provides
that
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the court shall consider all relevant factors, including, but not limited
to the factors enumerated in [R.C. 3109.04(F)(1)], and all of the
following factors:
(a) The ability of the parents to cooperate and make decisions jointly,
with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
{¶33} “The trial court ‘has discretion in determining which factors are
relevant,’ and ‘each factor may not necessarily carry the same weight or have the
same relevance, depending upon the facts before the trial court.’” Krill, 2014-Ohio-
2577, at ¶ 29 (3d Dist.), quoting Brammer v. Brammer, 2013-Ohio-2843, ¶ 41 (3d
Dist.). “A trial court is not limited to the listed factors in R.C. 3109.04(F), but may
consider any other relevant factors in making a determination of child custody.”
Brammer at ¶ 41. “Although the trial court must consider all relevant factors, there
is no requirement that the trial court set out an analysis for each of the factors in its
judgment entry, so long as the judgment entry is supported by some competent,
credible evidence.” Krill at ¶ 29. “‘[A]bsent evidence to the contrary, an appellate
court will presume the trial court considered all of the relevant “best interest” factors
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listed in R.C. 3109.04(F)(1).’” Brammer v. Meachem, 2011-Ohio-519, ¶ 32 (3d
Dist.).
{¶34} “Additionally, we note that the trier of fact is in the best position to
observe the witnesses, weigh evidence, and evaluate testimony.” Walton v. Walton,
2011-Ohio-2847, ¶ 20 (3d Dist.). “Therefore, ‘“[a] reviewing court should not
reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and evidence submitted before the trial court. A finding
of an error in law is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not.”’” Id., quoting Clark v. Clark, 2007-
Ohio-5771, ¶ 23 (3d Dist.), quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 81 (1984). Importantly, “[t]he best interest determination focuses on the
child, not the parent.” B.S. v. M.M., 2021-Ohio-176, ¶ 29 (5th Dist.).
{¶35} In this case, Statler-Houchin argues that the trial court abused its
discretion by modifying the shared-parenting decree and by concluding that it is in
J.S.’s best interest for Starr to have residential and legal custody of J.S. Essentially,
Statler-Houchin asserts that the trial court’s custody decision (based on the factors
under R.C. 3109.04(F)) is not supported by a substantial amount of competent,
credible evidence. However, for the reasons that follow, we conclude that the trial
court did not abuse its discretion by modifying Starr and Statler-Houchin’s shared-
parenting decree and by designating Starr as the residential parent and legal
custodian of J.S.
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{¶36} Relevantly, the Supreme Court of Ohio distinguished that “R.C.
3109.04(E)(1)(a) allows for modification of a shared-parenting decree,” while
“R.C. 3109.04(E)(2)(a) and (b) allow for the modification of the terms of a shared-
parenting plan.” (Emphasis in original.) Bruns, 2020-Ohio-4787, at ¶ 11. See also
Fisher, 2007-Ohio-5589, at ¶ 31 (noting that “[a] plan is not used by a court to
designate the residential parent or legal custodian; that designation is made by the
court in an order or decree”). In particular, the court highlighted that R.C.
3109.04(E)(2)(a) “provides that when both parents subject to a shared-parenting
decree have jointly agreed on certain modifications to the terms of the shared-
parenting plan, the court may make those modifications if it determines that they
are in the best interest of the child.” Bruns at ¶ 11. It further highlighted that R.C.
3109.04(E)(2)(b) “authorizes the trial court—on its own initiative or at the request
of one or both parents—to modify the terms of the shared-parenting plan when
modification is found to be in the best interest of the child.” Id.{¶37} “In contrast to subsection (E)(1)(a), which outlines how to modify a
custody decree, and subsections (E)(2)(a) and (b), which outline how to modify the
terms of a shared-parenting plan, subsection (E)(2)(c) provides the procedures for
terminating a shared-parenting decree that includes a shared-parenting plan.”
(Emphasis in original.) Id. at ¶ 12. See also Fisher at ¶ 31 (stressing that “the
designation of residential parent or legal custodian cannot be a term of shared-
parenting plan, and thus cannot be modified pursuant to R.C. 3109.04(E)(2)(b)”).
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R.C. 3109.04(E)(2)(c) provides that the trial court “may terminate a prior final
shared parenting decree that includes a shared parenting plan . . . upon the request
of one or both of the parents or whenever it determines that shared parenting is not
in the best interest of the children.” In the event that the trial court terminates a
shared-parenting decree, R.C. 3109.04(E)(2)(d) provides:
“Upon the termination of a prior final shared parenting decree under
division (E)(2)(c) of this section, the court shall proceed and issue a
modified decree for the allocation of parental rights and
responsibilities for the care of the children under the standards
applicable under divisions (A), (B), and (C) of this section as if no
decree for shared parenting had been granted and as if no request for
shared parenting ever had been made.”
R.C. 3109.04(E)(2)(d).
{¶38} Since Starr sought to modify the shared-parenting decree, such
modification
may only be made “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 shared
parenting decree, and that the modification is necessary to serve the
best interest of the child.”
Fisher at ¶ 33, quoting R.C. 3109.04(E)(1)(a). See also Bruns at ¶ 19 (stressing that
a “modification of the designation of residential parent and legal custodian in a
shared-parenting plan is a modification of the decree allocating parental rights and
responsibilities . . . requires a change-in-circumstances finding under R.C.
3109.04(E)(1)(a)). “This is a high standard, as a ‘change’ must have occurred in the
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life of the child or the parent before the court will consider whether the current
designation of residential parent and legal custodian should be altered.” Fisher at ¶
33.
{¶39} In this case, the trial court’s magistrate reallocated the parties’ rights
and responsibilities by modifying the shared-parenting decree and designating Starr
as “the residential parent for school enrollment and attendance purposes.” (Doc.
No. 71). In reaching its determination, the trial court’s magistrate analyzed that,
under “R.C. 3109.04(E)(2)(b), the Court may modify the terms of the plan for shared
parenting approved by the court and incorporated by it into the shared parenting
decree [so long as] the modification is in the best interest of the children.” (Id.).
Thus, in reaching the conclusion that it is in J.S.’s best interest that Starr have
residential custody of J.S., the trial court’s magistrate considered the factors under
R.C. 3109.04.
{¶40} In addressing the best-interest factors under R.C. 3109.04(F)(1), the
trial court’s magistrate found: R.C. 3109.04(F)(1)(a), “both parents are requesting
to be named the residential parent for school district and enrollment purposes of the
minor child”; R.C. 3109.04(F)(1)(b), no in camera interview was conducted; R.C.
3109.04(F)(1)(c), J.S. “has a loving relationship with both parents,” is “well
supported in the Defiance area” due to “an appropriate and bonded relationship with
[Starr’s] girlfriend and his parents [as well as Starr’s] siblings that reside in the area
[so J.S.] has contact with several other children on a regular basis,” and has “a
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normal and appropriate relationship with his half-sister” that resides with Statler-
Houchin; R.C. 3109.04(F)(1)(d), J.S. “has adjusted well to the Defiance
community” and has “a stable and secure home in Defiance,” while Statler-
Houchin’s “living situation . . . could change at any time which could force [her] to
move to a new residence and children to a new school”; R.C. 3109.04(F)(1)(e),
Statler-Houchin “is undergoing counseling” for “PTSD, anxiety, and depression,”
while Starr does not suffer from a mental or physical disorder; R.C.
3109.04(F)(1)(f), “both parties have been following court orders regarding
parenting time”; R.C. 3109.04(F)(1)(g), there is no child-support order; R.C.
3109.04(F)(1)(h), neither party has been convicted of any crime listed in the statute;
R.C. 3109.04(F)(1)(i), while there was evidence presented “that there was some
time when [Statler-Houchin] prevented [Starr] from exercising his parenting time
initially due to allegations of concern about his girlfriend’s mental health, and after
that she told [Starr] that she did not have to follow the court order,” there was no
evidence “presented that [Starr] had ever withheld parenting time from [Statler-
Houchin]”; and R.C. 3109.04(F)(1)(j), Statler-Houchin currently resides in Fort
Wayne, Indiana and [Starr] lives in Defiance, Ohio.” (Id.).
{¶41} Moreover, the trial court’s magistrate considered the factors under
R.C. 3109.04(F)(2) in its conclusion that it is in J.S.’s best interest for Starr to have
residential custody of J.S. Specifically, the trial court’s magistrate found that the
geographic proximity of the parents to each other presented impediments and that
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the GAL recommended that Starr “be named the residential parent for school
purposes.” (Id.). See R.C. 3109.04(F)(2)(d), (e).
{¶42} In its August 28, 2023 independent review of the magistrate’s
decision, the trial court adopted the magistrate’s decision designating Starr as J.S.’s
residential parent and legal custodian after determining that it is “in the best interest
of [J.S.]” (Doc. No. 72).
{¶43} Even though the trial court did not explicitly address whether a change
in circumstances occurred, we are able to discern from the record that a change in
circumstances occurred as required by R.C. 3109.04(E)(1)(a). See Haldy v. Hoeffel,
2020-Ohio-975, ¶ 16 (3d Dist.). Specifically, the trial court’s magistrate assessed
that the purpose of the modification was for J.S.’s enrollment in school. To that
finding, this court has concluded that a child’s enrollment in school can constitute a
change in circumstances under R.C. 3109.04(E)(1)(a). Accord In re Slavey, 1998
WL 546580, *2 (3d Dist. Aug. 21, 1998). See also Haldy at ¶ 16. Therefore, we
conclude that the trial court satisfied the change-in-circumstances finding under
R.C. 3109.04(E)(1)(a).
{¶44} Moreover, we conclude that the trial court properly considered the
best-interest factors. Challenging the trial court’s best-interest determination,
Statler-Houchin argues that the trial court should have designated her as J.S.’s
residential parent and legal custodian so that J.S. could attend school with his half
sibling. “While it is true that split-sibling custody awards are not favored, neither
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are they barred.” Shull v. Shull, 1990 WL 115983, *2 (2d Dist. July 31, 1990).
Instead, “[t]he decision to award the custody of siblings to different parents must,
like all custody determinations, be based upon the best interests of the child. R.C.
3109.04.” Id.{¶45} Based on our review of the record that is properly before this court,
we conclude that the trial court did not abuse its discretion by concluding that it is
in J.S.’s best interest for Starr to have residential and legal custody of J.S. Typically,
“[w]hen reviewing a trial court’s best interests analysis, we need only address two
items: ‘(1) [whether] the trial court considered all of the necessary factors listed in
R.C. 3109.04(F)(1); and (2) [whether] there is competent, credible evidence
supporting the trial court’s conclusion that it was in the children’s best interest to
designate [the other parent] as residential parent.’” Brammer, 2013-Ohio-2843, at
¶ 47 (3d Dist.), quoting Heiser v. Heiser, 2007-Ohio-5487, ¶ 27 (3d Dist.).
{¶46} However, we are unable to review whether there is competent,
credible evidence supporting the trial court’s determination that it is in J.S.’s best
interest for Starr to be designated his residential parent and legal custodian.
Critically, Statler-Houchin failed to timely file a transcript for the trial court’s
consideration in response to her objections to the magistrate’s decision.
Consequently, this court is precluded from considering whether the trial court’s
magistrate’s best-interest findings are supported by a substantial amount of
competent, credible evidence. Accord In re K.R.J.C., 2024-Ohio-632, ¶ 26 (11th
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Dist.) (concluding that the “failure to timely procure the transcript for the trial
court’s consideration in ruling on objections precludes [the appellate] court from
considering whether the magistrate’s factual findings were supported”). See also
Hewitt v. Hewitt, 2009-Ohio-6525, ¶ 47 (3d Dist.) (affirming that “any error with
regards to the sufficiency of the magistrate’s findings was technically waived” since
“a transcript of the proceeding was not provided to the trial court”). “Thus, although
the record contains a transcript of the evidentiary hearing before the magistrate, the
transcript was not filed until after the objections were ruled upon and cannot be
considered on appeal.” In re K.R.J.C. at ¶ 26, citing In re D.S.R., 2012-Ohio-5823,
¶ 17 (11th Dist.).
{¶47} As a result, Statler-Houchin’s third assignment of error is overruled.
{¶48} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/hls
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