Rohrbach v. Rohrbach ( 2015 )

[Cite as Rohrbach v. Rohrbach, 2015-Ohio-4728.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
MICHAEL ROBERT ROHRBACH,
PLAINTIFF-APPELLANT, CASE NO. 13-15-14
v.
STEPHANIE ANN ROHRBACH, OPINION
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court
Domestic Relations Division
Trial Court No. 2012 DR 0005
Judgment Reversed and Cause Remanded
Date of Decision: November 16, 2015
APPEARANCES:
John C. Filkins for Appellant
Case No. 13-15-14
{¶1} Plaintiff-appellant, Michael R. Rohrbach (“Michael”), appeals the
March 31, 2015 judgment of the Seneca County Court of Common Pleas
overruling his objections to the magistrate’s decision and granting the motion to
modify custody filed by defendant-appellee, Stephanie A. Rohrbach
(“Stephanie”). On appeal, Michael argues that the trial court erred in finding a
change in circumstances warranting the modification of the court’s prior custody
decree.
{¶2} The parties were divorced on August 31, 2012. At that time, the
parties entered into a shared parenting plan regarding the custody of their two
minor children. The shared parenting plan stated the following regarding the
children’s living arrangements.
3. LIVING ARRANGEMENTS
Both parties shall be designated the residential parent and legal
custodian of the minor children. First and foremost the
children’s living arrangements shall be as the parties can agree.
In the event the parties cannot agree then the living
arrangements shall be as follows:
Mother shall have parenting time with the minor children as set
forth in Local Court Rule 40 and additional time when Father is
absent from the home for more than four hours. Mother and
Father agree to give deference to the needs and desires of the
children as it pertains to the exercise of parenting time.
(Doc. No. 76 at 2).
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{¶3} Michael was named the child support obligor for purposes of the
shared parenting plan and was determined to have an annual child support
obligation of $2,410.54. However, the parties agreed to deviate child support to
zero dollars. Michael also agreed to pay seventy percent of the children’s school
fees, school expenses, and fees and expenses for extracurricular activities. The
shared parenting plan stated that Michael was to provide health insurance for the
children and that each party shall provide a reasonable amount of clothing for the
children.
{¶4} In 2013, the parties’ oldest child graduated high school and was
emancipated.
{¶5} On August 12, 2014, Stephanie filed a “Motion for Modification of
Shared Parenting Plan and Motion for Child Support.” In this motion, Stephanie
alleged that a change in circumstances had occurred since the prior parenting
decree pertaining to their youngest child, Kali, who was sixteen-years-old at the
time of the filing. Specifically, Stephanie claimed that Kali had changed her
living arrangements and now resided in Stephanie’s home full-time, whereas
before Kali was primarily living with Michael. Stephanie asserted that Michael
refused to pay for Kali’s basic necessities and other obligations which in turn had
created a financial hardship on her. Stephanie also maintained that modification
of the prior custody order was in Kali’s best interest. Stephanie requested that the
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trial court designate her as Kali’s residential parent and issue an order obligating
Michael to pay her child support.
{¶6} On December 15, 2014, the magistrate conducted an evidentiary
hearing on Stephanie’s motion for modification where each party provided
testimony and submitted exhibits relating to their incomes and financial positions.
The testimony revealed that up until June of 2014 the parties had exercised their
parenting time with Kali as follows. During the week Kali resided with Michael.
Specifically, Michael drove Kali to school in the morning and Stephanie picked
her up from school or her extracurricular activities in the afternoon. Stephanie
spent time with Kali until 8:00 p.m. or 9:00 p.m. at which time she returned Kali
to Michael’s residence for the night. One of the primary reasons for implementing
this schedule was that Stephanie worked from 5:00 a.m. to 1:00 p.m. and could not
take Kali to school in the morning. Therefore, Kali stayed overnight with Michael
during the week so that he could provide her with transportation to school. The
parties then exercised their respective parenting time with Kali on alternating
weekends.
{¶7} This schedule changed in June of 2014 when Kali finished the school
year and when she turned sixteen-years-old and received her operator’s license.
Kali purchased her own vehicle and drove herself to her summer job. Kali also
started primarily residing with Stephanie, but still visited Michael several times a
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week. Once the 2014-2015 school year began, Kali no longer needed Michael to
take her to school and continued to reside primarily with Stephanie.
{¶8} Stephanie testified at the hearing that she had asked Michael to pay for
some of Kali’s expenses, such as clothing and school supplies, but he refused. She
stated that she paid for Kali’s car insurance and maintained that Michael failed to
provide his share of financial support for Kali’s day to day and incidental
expenses. Michael disputed this contention. He testified that he paid for Kali’s
cell phone bill and had paid for her school expenses and clothing when asked. He
also claimed to give Kali spending money multiple times a week ranging from
$10.00 to $40.00 and provided Kali with meals when she visited him. As for
Kali’s medical expenses, the testimony at the hearing indicated that Michael was
no longer employed at the job he had when the prior custody decree was issued
and his current employer did not provide private health insurance. Due to neither
party being able to afford private health insurance, Kali was insured under the
“Buckeye Card.”
{¶9} Michael testified that in July of 2014, approximately two weeks after
Kali began consistently residing overnight at Stephanie’s house, Stephanie called
him and demanded that he give her money to meet the increased daily cost to
support Kali. A month later, Stephanie filed this motion to modify the prior
custody order. Michael maintained that there was no disagreement between the
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parties regarding either the shared parenting plan or with whom Kali would reside.
He also stated that he continued to have a good relationship with Kali and she
visited him every other day for a few hours. He acknowledged that Kali spent
more time with Stephanie since the summer of 2014, but also stated that up until
that point Kali had primarily resided with him since the divorce in 2012. The
record also indicates that Kali continued to perform well academically after she
decided to change her living arrangements and did not appear to be adversely
affected by the new custody schedule.
{¶10} On December 23, 2014, the magistrate issued his decision on the
matter. The magistrate noted in his decision that he had conducted an in-camera
interview with Kali in which she had expressed her wish “to continue living full-
time with her mother, and to see her father as she desires.” (Doc. No. 117 at 3).
The magistrate concluded that a change in circumstances had occurred based on
Kali’s decision to change her living arrangements and recommended that
Stephanie be designated the residential parent and Michael be designated the non-
residential parent. The magistrate also recommended that a child support order be
issued obligating Michael to provide Stephanie with a monthly child support
payment.
{¶11} On January 6, 2015, Michael filed preliminary objections to the
magistrate’s decision, which were later supplemented with the filing of the hearing
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transcript. Michael argued Stephanie “failed to establish that a change of
circumstances of sufficient significance to warrant a modification of the prior
shared parenting plan” had occurred. (Doc. No. 128 at 3). The trial court
subsequently overruled Michael’s objections and in its March 31, 2015 judgment
entry adopted the magistrate’s decision and issued orders in accordance with that
decision. The trial court granted Stephanie’s motion for modification of the
shared parenting plan and motion for child support and ordered the following:
The Plan should be modified. Defendant should be designated
the Child’s primary residential parent, and Plaintiff should be
designated the non-residential parent. Parenting time under the
Plan should be as the parties can agree, and if they cannot agree,
then in accordance with the Seneca County Local Rules of
Court, with Defendant be allotted the time designated for the
residential parent, and Plaintiff be allotted the time designated
to the non-residential parent.
(Doc. No. 130 at 4). The trial court ordered that Michael be responsible for a
monthly child support obligation of $343.33 when private health insurance is
being provided, and a monthly child support obligation of $310.95 plus $80.00 in
cash medical support when private health insurance is not being provided.
{¶12} Michael subsequently filed this appeal, asserting the following
assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
MODIFYING THE PARTIES’ SHARED PARENTING PLAN
AND ORDERING THE APPELLANT TO PAY CHILD
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SUPPORT WHEN THERE HAD BEEN NO CHANGE IN
CIRCUMSTANCES WHICH WERE NOT CONTEMPLATED
AT THE TIME OF THE ISSUANCE OF THE SHARED
PARENTING PLAN.
{¶13} On appeal, Michael argues that the evidence at the hearing was
insufficient to establish that a change in circumstances had occurred in order to
modify the parties’ shared parenting plan approved by the trial court in their 2012
divorce decree.
{¶14} Section 3109.04(E)(1)(a) of the Revised Code governs the
modification of a prior custody decree and states:
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:
(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.
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(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.
{¶15} The statute creates a strong presumption in favor of retaining the
residential parent designation and precludes a trial court from modifying a prior
parental rights and responsibilities decree unless the court finds all of the
following: (1) a change occurred in the circumstances of the child, the child’s
residential parent, or a parent subject to a shared-parenting decree, (2) the change
in circumstances is based upon facts that arose since the court entered the prior
decree or that were unknown to the court at the time of the prior decree; (3) the
child’s best interest necessitates modifying the prior custody decree; and (4) one of
the circumstances specified in R.C. 3109.04(E)(1)(a)(i)-(iii) applies. In re
Brayden James, 113 Ohio St.3d 420, 2007–Ohio–2335, ¶ 14. Thus, the threshold
question in a parental rights and responsibilities modification case is whether a
change in circumstances has occurred.
{¶16} “In determining whether a change in circumstances has occurred so
as to warrant a change in custody, a trial judge, as the trier of fact, must be given
wide latitude to consider all issues which support such a change.” Davis v.
Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the syllabus. The
determination that a change in circumstances has occurred for the purposes of R.C.
3109.04 “should not be disturbed, absent an abuse of discretion.” Id. at paragraph
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one of the syllabus. “Abuse of discretion” implies that the decision rendered was
arbitrary or unreasonable. Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
However, the trial court’s discretion is not absolute, and it must abide by R.C.
3109.04 in making decisions concerning custody. Erwin v. Erwin, 3d Dist. Union
No. 14-04-37, 2005-Ohio-1603, at ¶ 7, citing Miller at 74.
{¶17} With these parameters in mind, we turn to the instant case to review
whether the record establishes that a change in circumstances occurred within the
meaning of the statute to warrant a modification of the parties’ shared parenting
plan. The trial court made the following finding relative to the change in
circumstances inquiry:
Based upon the testimony and evidence received, the Court finds
that, based upon facts that have arisen since the filing of the
Decree, namely that the Child resides with Defendant, and does
not regularly exercise parenting time with Plaintiff for visits any
more than 2 to 3 hours in length, that a change in circumstances
has occurred, and that it is in the best interest of the Child that
the prior Plan be modified. Any negative effects of a
modification of the Plan are outweighed by benefits to the Child.
(Doc. No. 130 at 3).
{¶18} The only “change in circumstances” identified by the trial court in its
judgment entry was Kali’s decision to modify her living arrangements.
Specifically, Kali’s choice to reside in Stephanie’s home full-time instead of in
Michael’s, where she had been primarily living since the prior custody decree. At
the outset, we note it is generally recognized that a child’s wishes regarding
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custody standing alone are not enough to constitute a change in circumstances.
See McLaughlin v. McLaughlin—Breznenick, 3d Dist. Logan No. 8-06-06, 2007-
Ohio-1087, ¶ 28, citing Moyer v. Moyer, 10th Dist. Franklin No. 96APF05-659
(Dec. 17, 1996); see also Pryor v. Hooks, 9th Dist. Summit No. 25294, 2010-
Ohio-6130, at ¶ 10 (rejecting the argument that a change in age coupled with a
desire to live with a different parent, absent any other factors bearing on the
circumstances of the child or the child’s residential parent, constitutes a per se
change in circumstances). The reason for this is that “a child’s wishes are often
transitory; to allow a change in a child’s wishes automatically to serve as a change
of circumstances for purposes of R.C. 3109.04(E)(1)(a) might cause the constant
relitigation of issues which the ‘change in circumstances’ requirement is designed
to avoid.” Butland v. Butland, 10th Dist. Franklin No. 95APF09-1151 (June 27,
1996). This is all the more applicable in the present case, where Kali’s age,
complete mobility, and good relationship with both parents could readily enable
her to change her living circumstances between the two parents at any time.
{¶19} Moreover, even though R.C. 3109.04 does not provide a definition of
the phrase “change in circumstances,” Ohio courts have held that the phrase is
intended to denote “an event, occurrence, or situation which has a material and
adverse effect upon a child.” See e.g., Haskett v. Haskett, 11th Dist. Lake No.
2011–L–155, 2013-Ohio-145, ¶ 35, citing Wyss v. Wyss, 3 Ohio App.3d 412 (10th
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Dist.1982). To this end, the change in circumstances necessary to justify a
modification of a prior decree “must be a change of substance, not a slight or
inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).
Here, the record does not demonstrate nor does the trial court indicate that a
change of substance occurred with respect to Kali’s circumstances which had a
material and adverse effect on her. To the contrary, the evidence at the hearing
suggests that Kali continued to perform well academically and maintained good
relationships with both her parents after she decided in the summer of 2014 to live
full-time in Stephanie’s home.
{¶20} Arguably, the only indication of any change of substance or any
situation having a material and adverse effect, which was not relied upon by the
trial court, was the change in Michael’s and Stephanie’s finances. The evidence at
the hearing showed that Michael had changed jobs since the prior parenting decree
and now earned significantly less than he did before and no longer obtained
private health insurance through his employment. For her part, Stephanie claimed
to have suffered a financial hardship since Kali decided to regularly live with her.
However, we note that there was a lack of evidence at the hearing sufficiently
quantifying the increased financial need Stephanie experienced as a result of
Kali’s decision to change her living arrangements and, notably, less than two
months had transpired between the time Kali decided to change her living
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arrangements and Stephanie’s filing of her motion to modify the prior custody
order. Nevertheless, while the record may suggest that both parents suffered
financial obstacles since the prior custody decree, the evidence simply does not
support that Kali had been negatively impacted by this “change” in anyway, which
is the clearly the pertinent inquiry under the statute.
{¶21} The record also fails to support that the trial court’s “change in
circumstances” finding satisfied the second element of the statute which requires
the “change” to be based upon facts that have arisen or that were unknown to the
court at the time of the prior decree. The Supreme Court of Ohio has expressed
that “[t]his is a high standard, as a ‘change’ must have occurred in the 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 v. Hasenjager,
116 Ohio St. 3d 53, 59-60, 2007-Ohio-5589, ¶ 33.
{¶22} Here, the parties’ prior shared parenting plan contemplated the two
events which formed the basis for the trial court’s conclusion that a “change in
circumstances” had occurred. First, the parties’ prior custody decree specified that
“[f]irst and foremost the children’s living arrangements shall be as the parties can
agree.” The decree then explicitly provided for the custody arrangements “[i]n the
event the parties cannot agree.” (Doc. No. 76 at 2). Second, the prior custody
decree stated that “Mother and Father agree to give deference to the needs and
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desires of the children as it pertains to the exercise of parenting time.” (Id.) Thus,
the parties’ prior custody decree clearly anticipated the circumstances identified by
the trial court as its “change in circumstances” finding—i.e., Kali’s decision to
live with one parent over the other—and incorporated the appropriate flexibility
into the exercise of parenting time to prevent future litigation if the situation arose.
We also note that only two years had passed since the trial court issued the prior
decree when Stephanie filed her motion for modification. Thus, the parties were
not so far removed from the previous order to suggest that the intent to address the
specific circumstances foreseen in that order had somehow been affected by the
passage of time.
{¶23} In sum, R.C. 3109.04(E)(1)(a) precludes a trial court from modifying
a prior custody decree unless it finds that a change based upon facts that have
arisen or that were unknown to the trial court since the time the court entered the
prior decree has occurred in the circumstances of the child or the parents subject to
a shared parenting decree. We conclude that the record in this case simply does
not support the trial court’s determination that a change in circumstances had
occurred based solely upon the child’s desire to live with one parent over the
other, especially when such an event was specifically contemplated by the prior
shared parenting plan, and absent any other evidence that there was a change of
substance which had a material and adverse effect on the child.
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{¶24} Accordingly, we find that the trial court erred in finding that a
change in circumstances within the meaning of the statute had occurred in this
case sufficient to warrant the modification of the parties’ prior custody decree.
Therefore we sustain the assignment of error and the judgment of the trial court is
reversed and the cause remanded for further proceedings consistent with this
opinion.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. and PRESTON, J., concur.
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