Brammer v. Brammer

[Cite as Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
BRAMMER,
APPELLANT, CASE NO. 9-10-49
v.
BRAMMER, OPINION
APPELLEE.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 06 DR 119
Judgment Reversed and Cause Remanded
Date of Decision: May 31, 2011
APPEARANCES:
Ted I. Coulter, for appellant.
Kevin P. Collins, for appellee.
Case No. 9-10-49
SHAW, Judge.
{¶1} Appellant, Vance Brammer, appeals the August 19, 2010 judgment of
the Marion County Court of Common Pleas, Family Division, modifying the
parties’ shared-parenting plan to designate appellee, Shannon Brammer, as
residential parent of the parties’ children for school purposes.
{¶2} The parties were married on August 28, 1998, and had two children
together: Hayden, born in October 2000 and Keegan, born in June 2003. The
parties divorced in 2006, and a joint shared-parenting plan was put into effect in
which both parents exercised equal parenting time. Pursuant to the shared-
parenting plan, each parent was designated the residential and custodial parent of
the children during their individual periods of parenting time. The shared-
parenting plan also specified that the children attend school in the River Valley
School District unless the parties agreed to change school districts by mutual
consent.
{¶3} On January 19, 2010, Shannon filed a motion to modify parental
rights and responsibilities. In support of her motion, Shannon asserted that a
change in circumstances had occurred because she recently received a job
promotion and intended to relocate to Tennessee, where her fiancé and his
children resided.
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{¶4} On February 12, 2010, the trial court referred the matter to the family-
services coordinators pursuant to R.C. 3109.04(C) and Civ.R. 75(D) and ordered a
review of the case to be conducted and a report issued.
{¶5} On February 23, 2010, Vance filed a motion to modify parental rights
and responsibilities, asserting that it is in the best interests of the children to
remain in Ohio.
{¶6} On May 14, 2010, the family-services coordinator assigned to the
case, Ken Warren, submitted his report to the trial court. Warren met with
Shannon, Vance, and both children while conducting his review. In his report,
Warren stated that both parents are “capable and are in fact providing good homes
for their children.” Warren further noted that a primary contention between the
parties was whether their youngest, Keegan, would receive adequate attention for
his special-education needs in River Valley schools.1 Specifically, Vance
indicated that if he were to be named the residential parent for school purposes, he
would keep the children in River Valley schools, where they had begun to develop
strategies from multiple resources to assist Keegan with his special-education
needs. Shannon, on the other hand, expressed to Warren that she intended to place
1
Keegan was diagnosed earlier that year with Tourette ’s syndrome.
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the children in an elementary school in Brentwood, Tennessee, where she believed
the children would be better served educationally.
{¶7} Ultimately, Warren recommended that it is in the children’s best
interest to remain in Marion and to designate Vance as the children’s residential
parent for school purposes, noting that the children seemed well connected to their
school, neighborhood, and extended family—particularly to the children’s paternal
uncles and cousins and maternal grandmother, all of whom reside in the Marion
area.
{¶8} On May 24, 2010, the trial court heard testimony from several
witnesses including friends, neighbors, co-workers, and family members of each
party. In addition, Vance offered the testimony of the principal of Heritage
Elementary School, where the children attended school in Marion at the time of
the hearing, as well as each child’s current teacher at Heritage Elementary.
During this hearing, the report submitted by the family-services coordinator was
admitted into evidence as the trial court’s sole exhibit.
{¶9} On August 9, 2010, the proceedings continued, and both parties
offered their testimony concerning the modification of the shared-parenting plan.
At the end of the testimony, several exhibits were admitted into evidence,
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including a “504 accommodation plan” for Keegan prepared by Heritage
Elementary and the medical records of both children.
{¶10} On August 19, 2010, the trial court issued its decision on the matter.
The trial court determined that the requisite change in circumstances had occurred
in order to consider modification of the parties’ prior decree. The trial court then
evaluated the statutory factors listed in R.C. 3109.04(F)(1) to determine whether a
modification of the parties’ parental rights and responsibilities is in the children’s
best interest. Ultimately, the trial court concluded that it is in the best interest of
the children for Shannon to be named residential parent for school purposes and
found that the harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the children. Accordingly, the
trial court granted Shannon’s motion and modified the parties’ shared-parenting
plan.
{¶11} The trial court ordered Shannon to have the children for the majority
of the school year, while Vance was given parenting time during the children’s
summer school break with an exception of two weeks, which were reserved for
Shannon so that she could take the children on a family vacation. Vance was also
granted parenting time every fall school break, Thanksgiving, and spring break in
odd years. The trial court apportioned Christmas break so that both Vance and
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Shannon would receive time with the children during part of the break and would
alternate spending Christmas Day with the children every other year. The
remaining holidays were allocated pursuant to Loc.R. 32. The parties were also
ordered to share equally the cost of transportation for parenting time. Notably,
Vance and Shannon each remained the residential parent and legal custodian of the
children when exercising his or her individual parenting time as stated in the
original decree.
{¶12} Shannon and the children subsequently moved to Tennessee. Vance
filed a motion to stay the execution of the August 19, 2010 judgment entry
pending this appeal, which was denied by the trial court.
{¶13} Vance now asserts the following assignments of error on appeal.
Assignment of Error No. I
In support of the modification of the prior parental rights and
responsibilities for the minor children, the trial court erred as a
matter of law and abused its discretion by determining there was a
substantiated and sufficient “change in circumstances” pursuant of
[sic] Ohio Revised Code 3109.04(E)(1)(a).
Assignment of Error No. II
In support of the modification of the prior parenting rights and
responsibilities for the minor children and pursuant of [sic] Ohio
Revised Code 3109.04(E)(1)(a) and 3109.04(F)(1), the trial court
erred against the weight of the evidence and abused its discretion in
determining “that a modification is necessary to serve the best
interest of the child.”
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Assignment of Error No. III
In support of the modification of the prior parental rights and
responsibilities for the minor children and pursuant of [sic] Ohio
Revised Code 3109.04(E)(1)(a)(iii), the trial court erred and abused
its discretion in determining that “the harm likely to be caused by a
change of environment is outweighed by the advantages that a
change of environment would have on the minor child.”
{¶14} Because Vance’s assignments of error are interrelated, we elect to
address them together.
{¶15} Initially, we observe that child-custody determinations are some of
the most difficult and agonizing decisions a trial court must make. Therefore, a
trial court must have wide latitude in its consideration of the evidence. Davis v.
Flickinger (1997), 77 Ohio St.3d 415, 674 N.E.2d 1159. Generally, when
reviewing a ruling pertaining to the allocation of parental rights, the trial court is
to be afforded great deference. Miller v. Miller (1988), 37 Ohio St.3d 71, 523
N.E.2d 846. Thus, we will not reverse a child-custody decision that is supported
by a substantial amount of competent, credible evidence absent an abuse of
discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus.
The term “abuse of discretion” connotes more than an error of judgment; it implies
that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
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{¶16} R.C. 3109.04(E)(1)(a) authorizes a trial court to modify or terminate
a prior decree allocating parental rights and responsibilities. The statute outlines
the elements that the trial court must consider in its determination of whether a
modification of the prior decree is warranted. Specifically, R.C. 3109.04(E)(1)(a)
states the following regarding a modification of a prior custody decree:
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.
(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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{¶17} When a court is asked to modify a custody decree, the initial
determination to be made by the trial court is whether there has been a change in
circumstances of the child or the residential parent since the prior court order.
Wyss v. Wyss (1982), 3 Ohio App.3d 412, 414, 445 N.E.2d 1153. This finding
should be made prior to weighing the child’s best interest. The purpose of
requiring a finding of a change in circumstances is to prevent a constant
relitigation of issues that have already been determined by the trial court. Clyborn
v. Clyborn (1994), 93 Ohio App.3d 192, 196, 638 N.E.2d 112. Therefore, the
modification must be based upon some fact that has arisen since the prior order or
was unknown at the time of the prior order. R.C. 3109.04(E)(1)(a).
{¶18} In reviewing whether the evidence presented in this case
demonstrated that a change in circumstances has occurred, we are reminded that
the change must be of substance, not slight or inconsequential. Flickinger, 77
Ohio St.3d 415, 674 N.E.2d 1159. In addition, R.C. 3109.04(E)(1)(a) does not
require that the change be “substantial,” nor does “ the change * * * have to be
quantitatively large, but rather, must have a material effect on the child.”
McLaughlin v. McLaughlin-Breznenick, 3d Dist. No. 8-06-06, 2007 -Ohio- 1087, ¶
16, citing Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377, ¶ 31.
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{¶19} In the instant case, the trial court found “that mother’s relocation out
of the State of Ohio is a change in circumstances that will necessitate a
modification of the parental rights and responsibilities for the minor children.” On
appeal, Vance contends that Shannon’s mere “desire” to relocate out of state,
standing alone, is insufficient to constitute a change in circumstances and directs
our review to a series of cases that he asserts reiterates this conclusion. After
reviewing the jurisprudence on this issue, we observe that Vance oversimplifies
the relevant case law.
{¶20} It is settled that the relocation of the residential parent, in and of
itself, does not constitute a change in circumstances as to support a motion for
change of custody. See, e.g., Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d
599, 604, 737 N.E.2d 551; Vincenzo v. Vincenzo (1982), 2 Ohio App.3d 307, 308-
309, 441 N.E.2d 1139. However, it is equally settled that a court may consider
any attendant circumstances surrounding a residential parent’s relocation that
affect the child’s welfare in determining whether a change in circumstances has
occurred. See Zinnecker v. Zinnecker (1999), 133 Ohio App.3d 378, 383-385, 728
N.E.2d 38, citing Green v. Green (Mar. 31, 1998), 11th Dist. No. 96-L-145. In
particular, “a court may consider the fact that a relocation of the child would
remove him or her from a supportive network of family and friends as a factor in
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finding that a change of circumstances has occurred after the custodial parent
expresses a desire to move to another state.” In re Longwell (Aug. 30, 1995), 9th
Dist. No. 94CA006006. Indeed, “a move may constitute a change of
circumstances when coupled with evidence of other adverse effects, such as a
disruption in ongoing relationships with extended family.” In re D.M., 8th Dist.
No. 87723, 2006-Ohio-6191, at ¶ 36. In addition, it may be necessary for a trial
court to distinguish between contemplated relocations and those that have already
been accomplished. See DeVall v. Schooley, 5th Dist. No. CT2006-0062, 2007-
Ohio-2582, ¶ 16.
{¶21} The testimony before the trial court demonstrates that due to an
internal restructuring of Shannon’s employer, the position she held while living in
Marion was “being assumed by other groups” because the company intended to
eliminate the position in June 2010. Shannon accepted a promotion within the
same company, which required her to relocate to Tennessee — seven hours by car
from Marion. The testimony also reveals that Shannon intended to move in with
her fiancé, who also worked for Shannon’s employer as a vice president and
resided with his children in the Nashville area. However, Shannon maintained that
her relocation to Tennessee was based upon her promotion and asserted that the
move would have occurred regardless of her personal relationship.
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{¶22} Shannon testified that during the past few years, the children had
visited Tennessee five or six times and appeared comfortable with the location.
However, the evidence demonstrates that none of the children’s relatives or friends
live in Tennessee and that the boys had several relatives and friends in the Marion
area, where they had lived since their births. Moreover, due to the nature of the
parties’ prior custody decree and the fact that both parents live in close proximity,
the children had spent a considerable amount of time with both Shannon and
Vance since their divorce in 2006. Shannon’s impending relocation required that
the children would not see one of their parents for an extended period of time.
{¶23} Based on these attendant circumstances, it is apparent that the
shared-parenting plan in place was no longer feasible given Shannon’s plans to
relocate to Tennessee. Moreover, regardless of who would ultimately be named
the residential parent for school purposes, the children’s lives were going to be
dramatically altered because they would no longer be able spend an equal amount
of time with both parents. Accordingly, we find that the trial court did not err in
finding that Shannon’s impending relocation is a substantial change having a
material effect on the children and constitutes a change in circumstances
contemplated by R.C. 3109.04(E)(1)(a). Therefore, to this extent, Vance’s first
assignment of error is overruled.
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{¶24} Having concluded that the trial court properly found that the requisite
change in circumstances had occurred, we next turn to the trial court’s
determination that a modification of the prior custody decree is in the children’s
best interest. R.C. 3109.04(F)(1) provides a list of nonexclusive factors for the
trial court to consider in determining the best interest of the children. These
factors include:
(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 * * *,
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 companionship 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; * * *
(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.
{¶25} In addressing each of the statutory factors relevant to the instant case,
the evidence establishes that both Shannon and Vance wished to be named their
children’s residential parent for school purposes. Moreover, each parent expressed
significant concerns with the children’s residing with the other for the school year.
{¶26} Shannon’s testimony reveals that her concerns focused primarily on
education and medical issues, particularly with regard to the youngest, Keegan.
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Shannon expressed that she was not satisfied with the way Heritage Elementary in
Marion approached Keegan’s education challenges since his diagnosis with
Tourette’s syndrome. Shannon disapproved of the interventions that the school
had put in place to assist Keegan and the 504 accommodation plan developed
specifically for Keegan and what she viewed as the school’s reluctance to put an
individualized education program (“IEP”) in place for Keegan. Shannon touted
that the school in Brentwood Tennessee, Sunset Elementary—where her fiancé’s
children attended—had many “more resources” and “more money” than Heritage
and thus could better accommodate Keegan by immediately developing an
education plan suited to him. Shannon feared that Keegan would simply fall
through the cracks if he remained in the Marion area schools. However, there was
no evidence presented, aside from Shannon’s mere conjectures, to substantiate that
the school in Tennessee would better serve her children than the school in Marion.
{¶27} Another major concern for Shannon was obtaining medical treatment
for Keegan’s Tourette’s syndrome. Shannon testified that she and Vance first
noticed Keegan’s ticks in kindergarten, and they got progressively worse.
Shannon explained that as a registered nurse, she is more educated to handle
Keegan’s neurological issues and took the lead in this regard. Shannon expressed
her dissatisfaction with the doctors in Marion and that it took months before she
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could get Keegan an appointment with a neurologist at Nationwide Children’s
Hospital in Columbus. Throughout her testimony, Shannon asserted that the
community resources available to her in Tennessee were far superior to Marion.
However, the majority of Shannon’s testimony on this point was based on her own
speculation and not on any concrete or independent evidence.
{¶28} Finally, Shannon expressed her doubts that Vance would adequately
step up and take the lead in attending to the children’s school and medical matters
if he were named residential parent for school purposes. However, there was no
evidence presented demonstrating that Vance was incapable of stepping into this
role.
{¶29} Vance maintained that he has always been involved with the
children’s education and is more than capable of being the primary parent to
handle his children’s education matters. Vance admitted that Shannon took the
lead in making doctor’s appointments for the boys, but this was due to the fact that
she worked from home and had a more flexible schedule during the day. Vance
indicated that he would have no problem making doctor appointments for the
children if he were named residential parent for school purposes.
{¶30} Vance testified that he was satisfied with the way Heritage
Elementary approached Keegan’s Tourette’s syndrome. He stated that the 504
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accommodation plan was not requested for Keegan until January 2010, that it took
only a few months to develop, and that it would be in place for the next academic
year to be monitored for its effectiveness and modified accordingly.
{¶31} Vance’s primary concern with Shannon’s intentions to move the
children out of state was that they would be uprooted from the only family and
community they have ever known. Vance testified to the strong relationships that
the children had built with his two brothers and their families, who all reside in the
Marion area, in addition to childhood friends that they have known for years.
Vance expressed his concern with the children’s moving to Tennessee, where none
of their friends or relatives live. The only people the children were familiar with
in Tennessee were Shannon’s fiancé and his children, who are older than Hayden
and Keegan. Vance worried that if the children moved to Tennessee, their father-
son relationships would greatly suffer.
{¶32} With regard to the statutory factor R.C. 3109.04(F)(1)(b), we note
that neither party requested that the trial court conduct an in camera interview with
the children, nor did the court apparently find it necessary to do so. However, Ken
Warren, the family services coordinator, interviewed both children and included
his assessment of the children in his report submitted to the trial court.
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{¶33} Warren’s report indicates that Hayden was in the third grade at
Heritage Elementary School at the time Warren met with him. Warren noted that
Hayden expressed that he was “doing pretty good at school,; that he had “a lot of
friends at school and a few at each parent’s home,; and that “both parents help him
with his homework about equally.” Warren also made the following assessment,
“Hayden seems to be well bonded to both parents and to his brother. He enjoys
having equal time with both parents. He seems to be well adjusted to his school
and has some trepidation about leaving his familiar environment.”
{¶34} The younger child, Keegan, told Warren that he was in the first grade
at Heritage Elementary and that he was doing well in school. Keegan indicated
that Shannon helps him with his homework at her house, and Vance helps him
with his homework at his house if he says he needs help. Keegan also told Warren
that he played basketball and flag football and that his father went to his games
and that his mother was there sometimes. Warren noted that “Keegan seems to be
well bonded to both parents but perhaps more so to his mother. Keegan said that
they were going to get a computer and could talk to their father on the computer.”
{¶35} The evidence before the trial court regarding the next statutory factor
pertaining to the children’s interaction and interrelationship with their parents,
siblings, and any other person who may significantly affect their best interest
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indicates that the vast majority of these relationships were established and
cultivated in the Marion area.
{¶36} Shannon testified that she is very involved with the children, taking
them to classes at the YMCA and attending swimming classes. Shannon
participated in their school as a room mother and accompanied the children on
school field trips as a chaperone. Testimony before the court also demonstrates
that Keegan is extremely close to his mother. Shannon also presented testimony
that Keegan preferred to be in her care and would sometimes hide when Vance
came to take the children for his visitation. However, there was also testimony
before the trial court from Shannon’s mother that Keegan also hid from Shannon
when she came to pick up the children. Shannon’s mother explained that the
parties’ back-and-forth custody arrangement in the shared-parenting plan was very
difficult on Keegan.
{¶37} Vance testified that the boys were active in sports. Vance stated that
he and his brother, Vince, helped coach Hayden’s football team. Hayden played
on the same team as Vince’s son, Hayden’s cousin, who was the same age as
Hayden. Each year, Vance helped Hayden build a pinewood-derby car for the
Scouts’ pinewood derby race. Vance also coached Keegan’s soccer team for two
years and helped as a substitute coach for his T-ball team. Vance testified that he
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and the boys went fishing with his brothers and their kids, who are all around the
same ages. Vance recalled that they had already been on several fishing trips that
summer when he provided his testimony in August 2010.
{¶38} Vince Brammer, Vance’s brother, testified that he lived in the
Marion area with his family. Vince stated that he and his wife built a house down
the street from Shannon and Vance so that their families could be close to one
another. Vince testified that even though Shannon and Vance moved out of the
neighborhood after they divorced, Hayden and Keegan remained very close to his
children. Vince explained that in addition to playing sports and fishing together,
the cousins often have sleepovers at each other’s houses along with Vance and
Vince’s other brother, Victor, who also lives in Marion and has children around
the same age. Vince expressed his concern that if the children moved to
Tennessee, it would break the bonds between the cousins. Vince described his
relationship with his family and both his brothers’ families as a “support system”
that will fill in to help with the children when needed. Vince testified that in the
past, they have helped Vance get the children to and from school and had assisted
them with their homework when Vance was unable to do so.
{¶39} Shannon’s mother, Shirley West, also lives in the Marion area and
for several years played a significant caretaker role in the children’s lives, seeing
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them at least once a week. Shirley’s testimony reveals that she was the only
grandparent in the children’s lives. Shirley explained that she filled in as a
babysitter for both Shannon and Vance when needed and that she developed a
close relationship with her grandsons. However, she recently started a new
company and was no longer able to spend the same amount of time with the
children because she traveled often with her job. As a result, she now saw the
children only once or twice a month.
{¶40} Further testimony before the trial court indicates that Shannon has a
sister in Cleveland whom she and children see every three months, but that they
have not seen Shannon’s other sister and brother, who resided in Michigan, for a
couple of years.
{¶41} The only person residing in Tennessee who testified at the hearing
was Shannon’s fiancé, Mark Rappe. Mark testified that Hayden and Keegan had
visited his home in Brentwood, Tennessee, where Shannon intended to reside once
she relocated, three to five times within the past two years. Most of these visits
occurred over the span of a weekend. Mark explained that he has two children, a
14-year-old daughter and a 12-year-old son. Mark recalled that Hayden and
Keegan have been on vacations with his family to Florida. Mark stated that his
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children have bonded well with Hayden and Keegan and are excited for the boys
to join their family.
{¶42} The next factor to be considered by the court addresses the children’s
adjustment to their home, school, and community. As previously stated, much of
the testimony before the court demonstrates that the children had forged strong
bonds with family and friends in the Marion community where they have lived
their entire lives. However, a major point of contention between the parties
focused on the adequacy of River Valley schools in educating their children.
{¶43} Vance presented the testimony of Craig Lautenslager, the principal
of Heritage Elementary, as well as the testimony of Jennifer Miley and Sally
Dean, who were Hayden’s and Keegan’s teachers at Heritage Elementary.
{¶44} Principal Lautenslager testified that River Valley schools are ranked
as excellent in the state-wide rankings. He further testified that third-grader
Hayden is well adjusted to the River Valley school system. Principal Lautenslager
reviewed Hayden’s current report card and testified that overall, Hayden is having
“a very successful time at Heritage” and that he was on par with other students in
meeting the grade-level standard.
{¶45} Principal Lautenslager then reviewed Keegan’s records and testified
that first-grader Keegan was also well adjusted to the school. Principal
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Lautenslager testified that the school brought Keegan into the intervention
assistance team (“IAT”), which is “a general education initiative * * * that
happens when either the parent or the teacher thinks that a child might need some
additional work or strengths or some areas to receive some additional
intervention.” Principal Lautenslager testified that in Keegan’s case, the IAT was
initiated due to his Tourette’s syndrome and his teacher’s concern that his reading
level was below the target level for his grade. Principal Lautenslager explained
that the IAT had met twice regarding Keegan. According to Lautenslager, the first
meeting took place on April 14, 2010, and included Vance, the special-education-
intervention teacher, Keegan’s classroom teacher, and himself. The second
meeting, on May 19, 2010, had occurred one week before Lautenslager gave his
testimony to the court and included Vance and Shannon, the special-education-
intervention teacher, the classroom teacher, the school psychologist, and himself.
{¶46} At this second meeting, the team discussed whether the interventions
and accommodations put in place since the first meeting were successful.
Principal Lautenslager reviewed his notes from the meeting and noted that Keegan
had made process with his reading level. The team also discussed adjusting
certain interventions and accommodations that appeared not to be working well
for Keegan. After assessing this data and determining that some of the
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accommodations were successful, the team concluded that a 504 accommodation
plan, rather than an individualized education plan (“IEP”),2 would be more
appropriate for Keegan due to its flexibility and the fact that Keegan is very bright,
does not exhibit any signs of a learning disability, and does not like to be isolated.
{¶47} Principal Lautenslager explained that a 504 accommodation plan “is
a general [education] initiative where we put accommodations that will follow
Keegan wherever he goes.” Principal Lautenslager further described the
accommodations appropriate for Keegan: “[T]he accommodations we’re going to
give him are that he needs prompt redirections, he needs sentence starters, he
needs clarifications, he needs a quiet environment, extended time, silent reading,
and reading alone without an audience.” Principal Lautenslager explained that
these accommodations will also be in place when Keegan takes a statewide test or
a diagnostic-level test and will follow him as he advances to the next grade level.
{¶48} Keegan’s teacher, Sally Dean, also provided testimony regarding
Keegan’s performance in school. Dean remarked that Keegan is a very happy
child who is right on target with his math, social studies, and science skills. Dean
acknowledged that there is some concern that Keegan’s reading skills are slightly
2
According to Principal Lautenslager, an IEP would require that Keegan be given special
instruction.
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Case No. 9-10-49
behind the target level. However, Dean confirmed that a 504 plan is being
developed to assist Keegan in that regard. In addition, Dean commented on the
speed in which Heritage acted to address Keegan’s special needs: “Moving to a
504 [plan] for Keegan in two months is exceptional. I’ve never seen an IAT
process go as quickly as I have with Keegan. And I do at least four IAT’s a year
on children.”
{¶49} Dean testified that beginning in November 2009, she had several
meetings with both Shannon and Vance concerning Keegan’s reading level and his
involuntary muscle movements, which were later diagnosed as ticks caused by
Tourette’s syndrome. Dean explained that some special accommodations had
been developed to assist Keegan, and he was making progress as a result. Dean
testified that she kept a log counting the number of ticks Keegan had during class
so the neurologist could understand when the ticks occurred. She further testified
that Keegan’s ticks had significantly improved and that she was pleased with the
progress Keegan has made with his reading skills since the beginning of the school
year.
{¶50} Hayden’s teacher, Jennifer Miley, also provided testimony. Miley
testified that Hayden does best in science and social studies and with hands-on
activities and that she was very proud of his accomplishments in reading. Miley
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testified that both parents were involved with Hayden’s schooling and that Vance
helped chaperone one of the class field trips during the year.
{¶51} With regard to the statutory factor concerning the mental and
physical health of all persons involved in the situation, the evidence reveals that no
one involved suffered from any physical-health restraints and that the only health
concern is monitoring Keegan’s Tourette’s syndrome as it relates to school and
social matters.
{¶52} The evidence before the trial court also indicates that Vance and
Shannon operated effectively under the shared-parenting plan for four years. Both
were cordial with each other in handling custody matters and accommodated each
other when scheduling issues arose. There was also no child support ordered as
part of the original decree and no indication that one parent willfully or
continuously denied the other parent’s right to parenting time.
{¶53} With regard to the last statutory factor considering a parent’s plans to
move out of state, the evidence before the court clearly demonstrates that Shannon
intended to move to Tennessee, where she planned to establish her permanent
residence.
{¶54} In its judgment entry modifying the parties’ shared-parenting plan,
the trial court stated that it considered the best-interest factors enumerated above
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in determining whether the evidence warranted a modification of the prior custody
decree. The trial court determined that it is in the children’s best interest to
modify the prior decree. However, despite the majority of the evidence discussed
above supporting keeping the children in Marion and naming Vance the residential
parent for school purposes, the trial court concluded that it is in the children’s best
interest to designate Shannon as the residential parent for school purposes.
{¶55} In reviewing the trial court’s rationale for its conclusion, we note that
the trial court appears to focus on the testimony presented that the children would
receive a better education in Tennessee than if they remained in Marion, and that
Shannon is the parent better equipped to address Keegan’s medical needs.
Specifically, the trial court concluded:
The area in which [Shannon] will be residing in
Nolensville, Tennessee is reported to have high ratings
for their scholastic and academic achievements. Upon
investigation of the schools Mother reports and
believes Keegan will be better served, due to his
learning difficulties, through the school in Nolensville,
Tennessee. She believes that the Nolensville,
Tennessee schools will offer both children a better
education than the schools in Marion, Ohio. Mother is
very educationally driven for the children.
***
Mother has been, as agreed by all parties, the
primary parent to address the medical issues for the
children. Keegan’s situation, although not critical, is
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going to require close medical attention. Mother is a
registered nurse and has educated herself on Tourette’s
syndrome and its treatment. Both parties are
committed to insuring that the child has the
appropriate medical care; however, mother is in the
most advantageous position to advocate for the child’s
proper medical treatment as well as educational
supports.
{¶56} Initially, we observe that in contrast to the considerable testimony
regarding the specific programs offered by Heritage Elementary, there is virtually
no actual evidence to support the trial court’s conclusion that the children will
actually be better served by the Tennessee school. The limited testimony
concerning the school in Tennessee was presented by Shannon, her fiancé, and a
good friend of the couple who used to substitute teach at the school and admitted
that it was difficult to compare schools state-by-state because of the different
ranking systems used. Most of the testimony presented by Shannon was simply
based on her belief that the school would be better for Keegan, without any
independent evidence corroborating her opinions on the matter. Furthermore,
despite Shannon’s dissatisfaction with Heritage Elementary, the evidence supports
that the school has used every resource available to develop accommodations for
Keegan and that he was making progress as a result of these efforts.
{¶57} In addition, even though the evidence indicates that Shannon took the
lead in handling the children’s education and medical issues, there is no indication
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in the record that Vance is incapable of assuming this role. To the contrary,
Vance’s testimony demonstrates that his involvement with the children’s
education and medical matters has been substantial and that he would be willing to
continue to ensure that the children’s needs are met if he were named residential
parent for school purposes.
{¶58} We also observe that the trial court’s conclusion appears to focus
almost entirely on the youngest child, Keegan, who suffers from Tourette’s
syndrome, with which he was diagnosed only months prior to the trial court’s
decision. The trial court seems to completely overlook uncontroverted testimony
indicating that the older child, Hayden, is extremely well adjusted to the school
and community in Marion and is reluctant to move out of state.
{¶59} Notwithstanding these observations, we note that none of the best-
interest factors contained in R.C. 3109.04(F)(1) address the school or community
the child will experience if the custody decree is modified. Rather, the factors
almost exclusively focus on the child’s current environment at the time the court
considered a modification of the prior decree. In this respect, the evidence before
the trial court overwhelmingly reveals that the children have developed strong ties
to the Marion community, where the majority of their extended family lives.
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{¶60} In reviewing the testimony presented to the trial court within the
framework of the statutory factors, we conclude that the evidence heavily favors a
decision to keep the children in Marion, where the children are well adjusted and
established in a supportive family and community network. Nevertheless, despite
this substantial amount of evidence and the recommendation of the family-services
coordinator supporting a decision to designate Vance the children’s residential
parent for school purposes, the trial court concluded otherwise. However, we
cannot find evidence in the record that supports uprooting the children from an
environment where they are surrounded by family and friends simply to place
them in a new state where the only people known to them are their mother, her
fiancé and his children, with whom they have had only intermittent contact during
the past two years. Moreover, we do not find that Shannon’s belief regarding a
potential advantage that the youngest child may receive in the Tennessee school is
strong enough to outweigh the evidence from teachers and a school principal
substantiating actual educational advantages that both children have received
while residing in Marion. Therefore, we do not find that the evidence supports the
trial court’s decision that it is in the best interest of the children to designate
Shannon as residential parent for schools purposes.
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{¶61} We are mindful that the trial court is typically afforded wide latitude
in determining custody matters; however, when the trial court’s determination is
not supported by a substantial amount of competent, credible evidence, we have
no choice but to conclude that the decision constitutes an abuse of discretion.
Furthermore, we are also reminded that “ ‘[t]he clear intent of [R.C.
3109.04(E)(1)(a) ] is to spare children from a constant tug of war between their
parents who would file a motion for change of custody each time the parent out of
custody thought he or she could provide the child a “better” environment. The
statute is an attempt to provide some stability to the custodial status of the
children, even though the parent out of custody may be able to prove that he or she
can provide a better environment.’ ” Flickinger, 77 Ohio St.3d 415, 418, 674
N.E.2d 1159, quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 OBR 479,
445 N.E.2d 1153.
{¶62} Accordingly, we must conclude that the trial court abused its
discretion in determining on this evidence that it is in the children’s best interest to
designate Shannon the residential parent for school purposes. As a result, it is our
determination that the trial court’s judgment was not supported by a substantial
amount of competent, credible evidence and is in fact against the weight of the
evidence.
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{¶63} Based on the reasons above, Vance’s second and third assignments
of error are sustained, the judgment is reversed, and the cause is remanded for
further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
ROGERS, P.J., and WILLAMOWSKI, J., concur.
/jlr
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