Rozborski v. Rozborski

Plaintiff-appellant, Nancy Rozborski, appeals the trial court's decision approving the referee's report and thus denying her motion to relocate the minor children. For the following reasons, we affirm this decision.

Plaintiff and defendant-appellee, John Rozborski, were married in 1985. Two children were born during this marriage: Michael John, d.o.b. March 1, 1987, and Thomas John, d.o.b. October 5, 1988. The parties were granted a divorce in June 1992. As part of the separation agreement, the parties entered into a shared parenting program whereby neither parent would relocate the children from Cuyahoga County without either the other parent's permission or a court order.

Plaintiff worked for Westinghouse Corporation in Cuyahoga County for nearly ten years. Defendant is self-employed as a jewelry salesman.

In February 1993, plaintiff filed a motion to terminate shared parenting, which motion was granted pursuant to an agreed judgment entry. According to this agreement, plaintiff was granted legal and residential custody of the two children. The agreement also contained a residency restriction as follows:

"The parties further agree that plaintiff shall not change the permanent residence of the minor children from Cuyahoga County without first obtaining the written consent of Defendant or without first obtaining an Order of Court of competent jurisdiction."

After pursuing a job opportunity with Westinghouse in Pittsburgh, plaintiff, on May 4, 1994, was offered a position in Pittsburgh, which she accepted one day later. Plaintiff did not attempt to explore other job opportunities in Cuyahoga County. On May 9, 1994, plaintiff filed an emergency motion to relocate and notice of intent to relocate. Defendant filed a motion in opposition to motion to relocate, along with a motion for psychological evaluation of the parties and minor children.

Appellant has testified that her employment in Pittsburgh began on July 5, 1994, and that her former position with Westinghouse in Cleveland has been terminated.

Pursuant to defendant's motion, the children and parents were examined by Dr. Mark Lovinger, a clinical psychologist familiar with the family because he previously performed the custody evaluation at the time of the divorce. Both parties stipulated that Dr. Lovinger would testify as an expert on this matter. Dr. Lovinger concluded that it was in the best interest of the two children to have them stay in Cuyahoga County.

A hearing was held in front of a referee, after which the referee issued a report recommending that plaintiff's motion to relocate be denied. Plaintiff filed objections to the report. The trial court, in an order dated November 16, 1994, overruled the objections to the referee's report and adopted it, thus denying plaintiff's motion to relocate. On December 15, 1994, plaintiff timely appealed to this court and raised the following assignments of error:

"I. The trial court abused its discretion when it denied appellant's emergency motion to relocate from the state of Ohio to the state of Pennsylvania with the parties' minor children."

Whether a motion to relocate will be granted turns on whether the relocation is in the best interest of the children.¹Powe v. Powe (1987), 38 Ohio Misc.2d 5, 525 N.E.2d 845. The Ohio legislature has set forth the factors that determine the best interest of the child. R.C. 3109.04. This court has stated that the moving party bears the burden of establishing whether the requested relocation is in the best interest of the child.Hauck v. Hauck (Mar. 31, 1983), Cuyahoga App. No. 44908, unreported, 1983 WL 5881.

A review of the evidence presented reveals that plaintiff has failed to satisfy her burden of proof. When plaintiff agreed to terminate shared parenting, plaintiff specifically agreed not to relocate the children without consent of the other parent or a court order. Defendant testified that he agreed to the plan only because of the relocation restriction. Moreover, the referee was persuaded by the testimony of Dr. Lovinger, a clinical psychologist, who stated that the relocation of the children was not in their best interest. The referee stated as follows:

"Lovinger points out several reasons to focus on avoiding the children's move. He finds staying in Cleveland clearly the better choice. The primary reason for his opinion is the accessibility of day to day contact with people who are significant to the children in a variety of situations. To move them would affect their relationships here (the father, Brenda, their half brother) all of which are positive as far as is known. The father has played a significant roll in the boys' activities, attends all of their games, probably half of their practices, and has even pitched in from time to time assisting the soccer coach. He works a moderately flexible schedule as a self-employed jewelry salesman and adjusts it primarily around the boys. Unchallenged testimony established that the boys share an excellent relationship with Brenda and her son Todd and truly love the time they spend with their half brother.

"Lovinger expressed serious reservations about the way Plaintiff approached the Pittsburgh promotion without involving Defendant in discussions until essentially after she'd made her decision. Knowing she had to decide quickly, he still believes it would have been better to at least make the attempt to communicate. * * * He found problematic the fact that Plaintiff only began exploring jobs locally after realizing there was to be a fight. His problem with Plaintiff's approach to her career advancement opportunity is that he found it reflective of a larger issue affecting the children. ``It's not just a mistake.' ``It shows a certain degree of unawareness of the impact that this kind of process has on children.'

"Over and over, in compelling testimony, Dr. Lovinger underscored fear of disrupting what is clearly working well for the children."

Plaintiff has failed to present any evidence to rebut this expert's conclusion, let alone satisfy her burden to prove affirmatively that it is in the best interest of the children to relocate them. Plaintiff's first assignment of error is overruled.

"II. The trial court's decision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution."

Plaintiff claims that the lower court exhibited a gender bias in making its decision. There is no evidence to support plaintiff's equal protection argument. The detailed referee's report, which was adopted by the trial court, centered specifically on the best interest of the children. Plaintiff has failed to point to any evidence of gender bias and failed to raise this issue below. This assignment of error is overruled.

"III. The trial court's refusal to permit appellant to move out of state with her children was an unconstitutional infringement upon her freedom to travel and live where she chooses."

Plaintiff argues that the trial court's denial of her motion to relocate constitutes an unconstitutional infringement on her right to travel. This argument is without merit. Plaintiff was never ordered to stay in this county. On the contrary, plaintiff agreed to stay here as part of the shared parenting plan.

This court has previously held that a shared parenting order concerns the residence and visitation of the child and does not prohibit either party from travelling. Marsala v. Marsala (July 6, 1995), Cuyahoga App. No. 67301, unreported, at 6, 1995 WL 396360; Hunter v. Hunter (Aug. 12, 1992), Madison App. Nos. CA91-10-031 and CA91-11-034, unreported, at 8, 1992 WL 193688. The case cited by plaintiff, Smeltzer v. Smeltzer (Nov. 24, 1993), Columbiana App. No. 92-C-50, unreported, 1993 WL 488235, is inapplicable because that case involved a court-ordered residency restriction. Therefore, plaintiff's third assignment of error is overruled.

Judgment affirmed.

JAMES D. SWEENEY, P.J., concurs.

HARPER, J., concurs separately.

¹ Both parties agree on this point.