Enz v. Lewis , 2011 Ohio 1229 ( 2011 )

[Cite as Enz v. Lewis, 2011-Ohio-1229.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
BRETT ENZ, :
:
Plaintiff-Appellee, : Case No. 10CA3357
:
vs. : Released: March 9, 2011
:
AMANDA LEWIS nka YATES, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
____________________________________________________________
APPEARANCES:
Christen N. Finley, Richard M. Lewis, and Jennifer L. Routte, The Law
Firm of Richard M. Lewis, LLC, Jackson, Ohio, for Appellant.
Marcia I. Shedroff, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
Per Curiam:
{¶1} Appellant, Amanda Yates, appeals the decision of the Scioto
County Court of Common Pleas, Domestic Relations Division’s judgment
entry overruling her objections to the magistrate’s order and granting
Appellee, Brett Enz’s, motion to modify parental rights and responsibilities.
On appeal, Appellant raises multiple assignments of error, contending that 1)
the trial court lacked jurisdiction; 2) the trial court erred in failing to appoint
a guardian ad litem; 3) the trial court erred in changing custody when a
substantial change of circumstances had not occurred; 4) the trial court erred
Scioto App. No. 10CA3357 2
in failing to find or conclude that a change of custody was necessary to serve
the child’s best interests or how the change would serve the child’s best
interests; 5) the trial court erred in making findings of fact which were
against the manifest weight of the evidence to support its order requiring a
change in custody; 6) the trial court erred in relying on facts which occurred
prior to the initial custody order, which was filed on September 16, 2008, in
reaching its decision to change custody; 7) the court’s findings regarding
Appellant’s mental state (erratic behavior, lapses in judgment, and
adjustment to prescription antidepressants) were against the manifest weight
of the evidence; 8) the trial court erred in failing to require the parties and
their minor child to submit to mental and physical evaluations; 9) the trial
court erred in deeming Appellee’s request for admissions admitted; 10) the
trial court erred in failing to state what changes of circumstances occurred
which provided the threshold for its decision to grant Appellee’s motion to
modify custody; and 11) the trial court erred in determining child support.
{¶2} In light of our determination that the trial court properly
exercised jurisdiction over this matter, Appellant’s first assignment of error
is overruled. Further, in light of our findings that the trial court did not err
or abuse its discretion in failing to appoint a guardian ad litem or certify the
matter to the juvenile court, Appellant’s second assignment of error is
Scioto App. No. 10CA3357 3
overruled. As the trial court failed to find that a modification would serve
the child’s best interests, Appellant’s fourth assignment of is sustained and
this matter is reversed and remanded. As such, Appellant’s remaining
assignments of error have been rendered moot and we do not reach them.
FACTS
{¶3} On May 20, 2008, Plaintiff-Appellee, Brett Enz, filed a
complaint in the Scioto County Court of Common Pleas, Domestic Relations
Division, to establish a parent-child relationship against Defendant-
Appellant, Amanda Lewis nka Yates, with respect to minor child, Elle Enz,
born July 8, 2006. On September 16, 2008, an agreed judgment entry was
filed whereby the parties confirmed a parent-child relationship between Elle
Enz and Appellee, Appellant was designated the residential parent, and
Appellee was granted parenting time and was ordered to pay child support.
Subsequently, on December 8, 2008, Appellee filed a motion to modify
child support and motion to modify parenting time. The memorandum in
support of Appellee’s motion alleged that Appellant had not moved to
Chillicothe, as had been the understanding, and was instead living in Scioto
County with her new husband.
{¶4} The record further reflects that on February 9, 2009, Appellee
filed another motion in the domestic relations court entitled “Motion for
Scioto App. No. 10CA3357 4
Emergency Custody Order” and “Motion for Modification of Allocation of
Parental Rights and Responsibilities.” Attached to these motions were two
affidavits. The first affidavit, by Appellee, stated that Appellant was now
remarried to Bobby Yates, was living in Scioto County, and had a problem
with prescription drug abuse which affected her ability to care for the
parties’ minor child. The second affidavit, by Bobby Yates, described an
incident when Yates arrived home to find Elle and another child, both age
two, locked in a bathroom, naked, playing in the toilet, with a steak knife.
Yates further stated that Appellant, on this day and other occasions as well,
was sleeping deeply under the influence of xanax or other prescription
drugs. Also attached to these motions was a UCCJEA form wherein
Appellee stated that there was a pending “Custody/Neglect/Abuse” case in
the Scioto County Juvenile Court, Case No. 20930015 involving the minor
child. Appellee represented on the UCCJEA form that no orders or
judgments had been issued out of that court and that the matter was “to be
dismissed.”1
{¶5} On February 11, 2009, the domestic court issued an order
granting Appellee’s motion for emergency custody, thereby designating
Appellee the residential parent and setting the matter for a probable cause
1
As we will discuss in more detail under Appellant’s first assignment of error, the actual juvenile court
filings were not made a part of the record below and are not properly before us on appeal.
Scioto App. No. 10CA3357 5
hearing. On February 26, 2009, the parties entered into a memorandum of
agreement which was filed in the domestic court. In the memorandum,
Appellee waived probable cause, without admitting probable cause, agreed
that Appellee would remain the residential parent, and that Appellant would
be permitted parenting time provided she was not under the influence of
alcohol or drugs and that she was taking her prescription medications as
ordered by her physician. A judgment entry reflecting the memorandum of
agreement was filed by the domestic court on March 17, 2009, and the
matter was scheduled for a full hearing on May 13, 2009.
{¶6} Discovery ensued and a hearing was held on May 13, 2009;
however, the matter was unable to be concluded in one day, and as a result,
it was decided the hearing would be concluded on August 20, 2009. In the
interim, Appellee served Appellant with his first set of interrogatories,
request for admissions and production of documents. In response, Appellant
filed a motion for protective order, contending that the discovery requests
were inappropriate considering that they were midway into the hearing on
the matter. On July 24, 2009, a magistrate’s order was filed denying
Appellant’s motion for protective order and provided the parties ten days to
file a motion to set aside the order. Appellant filed a notice of compliance
with discovery, representing that she had complied with discovery as of
Scioto App. No. 10CA3357 6
August 12, 2009. However, on August 18, 2009, Appellee filed a “Motion
to Continue; Motion in Limine” asserting that Appellant had responded to
only 10 of the 30 discovery requests.2 Appellee requested that the matter be
continued in order that discovery could be completed, or in that alternative
that Appellant be prohibited from introducing evidence relating to the
discovery requests in which she had failed to respond. Ultimately, a
magistrate’s order was filed on August 19, 2009, ordering Appellee’s
counsel to prepare a judgment entry indicating the specific admissions that
were deemed to be admitted.3
{¶7} The final day of the hearing was held on August 20, 2009, post-
trial briefs were submitted for consideration and a magistrate’s decision was
filed on November 10, 2009. In the decision, the magistrate issued findings
of fact and conclusions of law and found that “several changes in
circumstances have occurred which necessitate re-evaluation of the
allocation of parental rights and responsibilities.” As such, the magistrate
granted Appellee’s motion to modify parental rights and responsibilities, and
set forth a schedule for Appellant’s parenting time. The magistrate further
ordered Appellant to pay child support to Appellee. Appellant objected to
2
In response, Appellant contended that the failure to provide the omitted responses was an office oversight
and that as soon as Appellee’s motion in limine was filed, the omitted discovery responses were provided.
3
After the final day of the hearing and pending the decision, on October 30, 2009, a judgment entry was
filed deeming nine different statements to be admitted.
Scioto App. No. 10CA3357 7
the magistrate’s decision on November 24, 2009, and thereafter
supplemented her objections once the hearing transcript was filed. Finally,
on April 15, 2010, a judgment entry was filed wherein the domestic court
judge overruled Appellant’s objections and confirmed the decision of the
magistrate.
{¶8} It is from this judgment entry that Appellant now brings her
timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT LACKED JURISDICTION.
II. THE TRIAL COURT ERRED IN FAILING TO APPOINT A
GUARDIAN AD LITEM.
III. THE TRIAL COURT ERRED IN CHANGING CUSTODY WHEN
A SUBSTANTIAL CHANGE OF CIRCUMSTANCES HAD NOT
OCCURRED.
IV. THE TRIAL COUR ERRED IN FAILING TO FIND OR
CONCLUDE THAT A CHANGE OF CUSTODY WAS
NECESSARY TO SERVE THE CHILD’S BEST INTERESTS OR
HOW THE CHANGE WOULD SERVE THE CHILD’S BEST
INTERESTS.
V. THE TRIAL COURT ERRED IN MAKING FINDINGS OF FACT
WHICH WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE TO SUPPORT ITS ORDER REQUIRING A CHANGE
IN CUSTODY.
VI. THE TRIAL COURT ERRED IN RELYING ON FACTS WHICH
OCCURRED PRIOR TO THE INITIAL CUSTODY ORDER,
WHICH WAS FILED ON SEPTEMBER 16, 2008, IN REACHING
ITS DECISION TO CHANGE CUSTODY.
Scioto App. No. 10CA3357 8
VII. THE TRIAL COURT’S FINDINGS REGARDING APPELLANT’S
MENTAL STATE (ERRATIC BEHAVIOR, LAPSES IN
JUDGMENT, AND ADJUSTMENT TO PRESCRIPTION
ANTIDEPRESSANTS) WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
VIII. THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE
PARTIES AND THEIR MINOR CHILD TO SUBMIT TO MENTAL
AND PHYSICAL EVALUATIONS.
IX. THE TRIAL COURT ERRED IN DEEMING APPELLEE’S
REQUEST FOR ADMISSIONS ADMITTED.
X. THE TRIAL COURT ERRED IN FAILING TO STATE WHAT
CHANGES OF CIRCUMSTANCES OCCURRED WHICH
PROVIDE THE THRESHOLD FOR ITS DECISION TO GRANT
APPELLEE’S MOTION TO MODIFY CUSTODY.
XI. THE TRIAL COURT ERRED IN DETERMINING CHILD
SUPPORT.”
ASSIGNMENT OF ERROR I
{¶9} In her first assignment of error, Appellant contends that the trial
court lacked jurisdiction to consider Appellee’s motion for emergency
custody, which she contends set forth allegations of abuse and neglect.
Appellant bases her argument on R.C. 2151.23, claiming that the juvenile
court has exclusive original jurisdiction over matters concerning abused and
neglected children. Appellant argues that Appellee’s filing of an emergency
custody petition in the juvenile court, prior to his filing in the domestic
relations court, provided the juvenile court with exclusive, original
Scioto App. No. 10CA3357 9
jurisdiction.4 In response, Appellee contends that the domestic court
possessed continuing jurisdiction over the matter by virtue of its prior
divorce decree, which allocated parental rights and responsibilities, citing
this Court’s prior reasoning in Heisler v. Heisler, Hocking App. No.
09CA12, 2010-Ohio-98, as well as the reasoning of the Supreme Court of
Ohio in In re Poling, 64 Ohio St. 3d 211, 1992-Ohio-144, 594 N.E.2d 589.
{¶10} We initially note that Appellant challenges the domestic court’s
subject matter jurisdiction for the first time on appeal. Subject matter
jurisdiction is defined as a court's power to hear and decide cases. State ex
rel. Tubbs Jones v. Suster, 84 Ohio St. 3d 70, 75, 1998-Ohio-275, 701
N.E.2d 1002. Subject matter jurisdiction may be raised at any time and it
may be raised sua sponte by the court. State ex rel. Bond v. Velotta Co., 91
Ohio St. 3d 418, 419, 2001-Ohio-91, 746 N.E.2d 1071. A motion to dismiss
for lack of subject matter jurisdiction raises a question of law, subject to the
de novo standard of review. Groza-Vance v. Vance, 162 Ohio App. 3d 510,
2005-Ohio-3815, 834 N.E.2d 15, at ¶ 13; see, also, State ex rel. Rothal v.
Smith, 151 Ohio App. 3d 289, 2002-Ohio-7328, 783 N.E.2d 1001, at ¶ 110.
{¶11} In Heisler, at issue was whether the Hocking County domestic
relations court, which had originally obtained jurisdiction by virtue of a
4
Appellant also claims that the juvenile court had “already begun to issue orders” and attaches several
documents to her appellate brief purporting to be juvenile court filings. However, as set forth above, these
filings were not made a part of the record below and are not properly before us on appeal.
Scioto App. No. 10CA3357 10
divorce decree, had continuing jurisdiction over the allocation of parental
rights and responsibilities after a subsequent truancy and delinquency
proceeding was instituted against the parties’ child in the Fairfield County
juvenile court. As we noted in Heisler, “[a] domestic relations court that
enters an order allocating parental rights and responsibilities retains
jurisdiction over those issues.” Heisler at ¶16; citing R.C. 3109.06.
However, in Heisler, we recognized the contradiction that arises under R.C.
2151.23(A)(1) and (2), which essentially provides that a juvenile court
obtains “exclusive original jurisdiction” concerning any child, not a ward of
another court, alleged to be delinquent, or at issue here, abused, neglected or
dependent.5 Relying on the reasoning of the Supreme Court of Ohio in In re
Poling, supra, we ultimately determined that the domestic relations court and
the juvenile court possessed concurrent jurisdiction over the issue of
custody, and that this fact did not divest the domestic relations court of its
ability to modify its existing divorce decree. Heisler at ¶20; relying on In re
Poling at 215 (where a domestic relations court has entered a decree
regarding the custody of the child and the child later comes under the
jurisdiction of the juvenile court, the courts share concurrent jurisdiction
over the custody of the child.).
5
At issue in Heisler was a pending delinquency allegation in juvenile court; however, delinquent, unruly,
abused, neglected and dependent children are all governed by R.C. 2151.23.
Scioto App. No. 10CA3357 11
{¶12} Taking our reasoning a step further, to address Appellant’s
“jurisdictional priority rule” argument, we again look to our prior reasoning
in Heisler, where we noted that “[w]here courts share concurrent
jurisdiction, the general rule is that the court where proceedings are first
properly initiated acquires the right to adjudicate the matter to the exclusion
of all other courts.” Heisler at ¶ 19; citing State ex rel. Phillips v. Polcar
(1977), 50 Ohio St. 2d 279, 364 N.E.2d 33, at syllabus and Miller v. Court of
Common Pleas (1944), 143 Ohio St. 68, 70, 54 N.E.2d 130. Thus, we
reasoned that “the domestic relations court, which first established
jurisdiction through the divorce decree, would retain exclusive jurisdiction
to entertain custody issues involving a child the subject of an earlier divorce
decree in that court.” Heisler at ¶ 19. In doing so, we also noted that the
Poling court indicated that “juvenile courts may nonetheless make
‘particularized determinations regarding the care and custody of children
subject to its jurisdiction, while respecting the continuing jurisdiction of the
domestic relations or common pleas court that makes a custody decision in a
divorce case.’ ” Id; citing In re Poling at 216.
{¶13} As such, and in light of the foregoing, we conclude that
although the juvenile court may have obtained jurisdiction over the issue of
custody upon Appellant’s alleged filing of a motion for emergency custody
Scioto App. No. 10CA3357 12
alleging abuse, neglect and dependency in that court, such jurisdiction was
concurrent with the jurisdiction of the domestic relations court. Further, the
juvenile court’s concurrent jurisdiction did not divest the domestic relations
court of the continuing jurisdiction it acquired as a result of the prior divorce
decree. See, Bland v. Bland, Summit App. No. 21228, 2003-Ohio-828 (trial
court and juvenile court have concurrent jurisdiction over matters relating to
custody); In the Matter of Pierce, Ross App. No. 03CA2712, 2003-Ohio-
3997 (probate court and juvenile court have concurrent jurisdiction over
child). Thus, Appellant’s first assignment of error is overruled and the
domestic relations court’s exercise of jurisdiction over this matter was
appropriate.
ASSIGNMENT OF ERROR II
{¶14} In her second assignment of error, Appellant contends that the
trial court erred and abused its discretion in failing to appoint a guardian ad
litem. Appellant primarily hinges her argument on her assertions in her first
assignment of error, that the juvenile court had exclusive, original
jurisdiction over this matter, rather than the domestic relations court. As
such, Appellant relies upon juvenile court statutes, rather than domestic
relations court statutes. Appellant further argues that the domestic relations
court erred in failing to certify this matter to the juvenile court in accordance
Scioto App. No. 10CA3357 13
with R.C. 3109.06. Appellant, in response, appropriately directs our
attention to R.C. 3109.04(B)(2)(a), which governs appointment of guardians
ad litem when modifying parental rights and responsibilities, and R.C.
3109.06, which governs certification to the juvenile court.
{¶15} With respect to Appellant’s contention that the trial court
abused its discretion in failing to appoint a guardian ad litem, we note that
R.C. 3109.04(B)(2)(a) provides that:
“If the court interviews any child pursuant to division (B)(1) of this section,
all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent,
shall appoint a guardian ad litem for the child.”
{¶16} Here, a review of the record reflects that the trial court did not
interview the child in chambers, nor did the parties request such an interview
or request appointment of a guardian ad litem. Thus, the matter being purely
within the discretion of the trial court, and absent a request by the parties or
an interview of the child, we cannot conclude that the trial court abused its
discretion in failing to appoint a guardian ad litem. See, In re Munnings,
Geauga App. No. 2005-G-2622, 2006-Ohio-3230 at ¶16 (noting that a trial
court is generally only required to appoint a guardian if such an appointment
is designated by statute or rule); Feltz v. Feltz, Mercer App. No. 10-04-04,
2004-Ohio-4160 at ¶ 5 (finding no requirement for appointment of guardian
Scioto App. No. 10CA3357 14
ad litem where trial court did not meet with children before entering
judgment). Accordingly, we overrule Appellant’s second assignment of
error with regard to the trial court’s decision not to appoint a guardian ad
litem.
{¶17} With respect to Appellant’s second contention, that the trial
court erred in failing to certify the matter to the juvenile court, we turn our
attention to R.C. 3109.06, which provides, in pertinent part, that any court,
other than a juvenile court:
“may, on its own motion or on motion of any interested party, with the
consent of the juvenile court, certify the record in the case or so much of the
record and such further information, in narrative form or otherwise, as the
court deems necessary or the juvenile court requests, to the juvenile court for
further proceedings; upon the certification, the juvenile court shall have
exclusive jurisdiction.”
Thus, based upon a plain reading of the above language, certification of a
matter over to the juvenile court is discretionary. Here, where we have
already determined that the domestic relations court properly exercised
jurisdiction over the custody issue herein, and where none of the parties even
requested certification, we cannot conclude that the trial court abused its
discretion in failing to certify the matter to the juvenile court. Accordingly,
we overrule Appellant’s second assignment of error with regard to the trial
court’s decision not to certify the matter to the juvenile court.
Scioto App. No. 10CA3357 15
ASSIGNMENT OF ERROR IV
{¶18} Because Appellant’s fourth assignment of error is dispositive of
the remaining issues, we will address it out of order. In her fourth
assignment of error, Appellant contends that the trial court erred in failing to
find or conclude that a change of custody was necessary to serve the child’s
best interests or how the change would serve the child’s best interests. In
response, Appellee simply offers that “by virtue of the nature of the change
in circumstances in this case, the lower court obviously concluded that the
modification was necessary to serve the child’s best interests.” Appellee
further contends that because Appellant did not request findings of fact or
conclusions of law, she cannot now challenge “lack of an explicit finding
concerning an issue.” For the following reasons, we reject Appellee’s
contentions and sustain Appellant’s fourth assignment of error.
{¶19} “Appellate courts typically review trial court decisions
regarding the modification of a prior allocation of parental rights and
responsibilities with the utmost deference.” Wilson v. Wilson, Lawrence
App. No. 09CA1, 2009-Ohio-4978, at ¶ 21, citing Davis v. Flickinger, 77
Ohio St. 3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159; Miller v. Miller
(1988), 37 Ohio St. 3d 71, 74, 523 N.E.2d 846. See, also, Posey v. Posey,
Ross App. No. 07CA2968, 2008-Ohio-536, at ¶ 10; Jones v. Jones,
Scioto App. No. 10CA3357 16
Highland App. No. 06CA25, 2007-Ohio-4255, at ¶ 33. Consequently, we
apply an abuse-of-discretion standard when reviewing a trial court's decision
regarding the modification of parental rights and responsibilities. See Wilson
at ¶ 21; Jones at ¶ 33; Posey at ¶ 10.
{¶20} “In Davis, the court defined the abuse of discretion standard
that applies in custody proceedings as follows: ‘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. ‘The reason for this standard of review is
that the trial judge has the best opportunity to view the demeanor, attitude,
and credibility of each witness, something that does not translate well on the
written page. * * * The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that the trial judge is best
able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the
proffered testimony. * * * 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. The determination of credibility
Scioto App. No. 10CA3357 17
of testimony and evidence must not be encroached upon by a reviewing
tribunal, especially to the extent where the appellate court relies on
unchallenged, excluded evidence in order to justify its reversal. * * * This is
even more crucial in a child custody case, where there may be much evident
in the parties' demeanor and attitude that does not translate to the record
well.’ ” Posey at ¶ 10, quoting Davis at 418-19, 674 N.E.2d 1159 (other
internal quotations omitted). See, also, Wilson at ¶ 21; Jones at ¶ 33.
{¶21} R.C. 3109.04(E)(1)(a), which governs the modification of a
prior decree allocating parental rights, provides: “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 prior shared parenting decree, unless a
modification is in the best interest of the child and one of the following
applies: * * *.”
Scioto App. No. 10CA3357 18
{¶22} “ ‘Only R.C. 3109.04(E)(1)(a) expressly authorizes a court to
modify a prior decree allocating parental rights and responsibilities.’ ” Posey
at ¶ 11, quoting Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589,
876 N.E.2d 546 at ¶ 21. “Thus, a trial court may modify an allocation of
parental rights and responsibilities only if the court finds (1) that a change in
circumstances has occurred since the last decree, (2) that modification is
necessary to serve the best interest of the child, and (3) that the advantages
of modification outweigh the potential harm.” Jones at ¶ 35, citing Beaver v.
Beaver, 143 Ohio App. 3d 1, 9, 2001-Ohio-2399, 757 N.E.2d 41.
{¶23} Appellant contends that the trial court failed to properly
conclude that a change of custody was necessary to serve the child’s best
interest. We agree. Although the trial court did find that since residing with
Appellee the minor child “has adjusted well over time,” this statement was
not made as part of a best interest analysis. Further, nowhere in the
magistrate’s decision or the trial court’s final judgment entry adopting the
magistrate’s decision do the words “best interests” appear. Further, although
Appellant did not request findings of fact and conclusions of law, the record
reveals that the magistrate provided them, Appellant objected to them on this
basis, and the trial court overruled Appellant’s objection. As such,
Appellant’s fourth assignment of error is sustained. Accordingly, the
Scioto App. No. 10CA3357 19
decision of the trial court is reversed and remanded for further findings
consistent with this opinion.
{¶24} In light of our disposition of Appellant’s fourth assignment
error, Appellant’s third, fifth and sixth through eleventh assignments of error
have been rendered moot. However, we do note, with regard to Appellant’s
third and tenth assignments of error, which challenge the trial court’s
findings with regard to a change in circumstance, that while the trial court
did find a change in circumstance had occurred, and evidence presented
arguably supports that finding, the trial court did not delineate what specific
change had occurred. Such a clarification would be beneficial upon remand.
JUDGMENT REVERSED AND
CAUSE REMANDED.
Scioto App. No. 10CA3357 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND THE
CAUSE REMANDED and that the Appellant recover of Appellee costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Court of Common Pleas, Domestic Relations Division, 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.
Exceptions.
Abele, J., Kline, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Peter B. Abele, Judge
BY: _________________________
Roger L. Kline, Judge
BY: _________________________
Matthew W. McFarland, 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.