Masters v. Masters

• Decision Date: 27 April 1994
• Docket Number: No. 92-668,92-668
• Citation: 630 N.E.2d 665,69 Ohio St.3d 83
• Parties: MASTERS, Appellant, v. MASTERS, Appellee.
• Court: Ohio Supreme Court

Page 83

69 Ohio St.3d 83

630 N.E.2d 665

MASTERS, Appellant, v. MASTERS, Appellee.

No. 92-668.

Supreme Court of Ohio.

Submitted Feb. 1, 1994.

Decided April 27, 1994.

Monica L. Masters ("Monica"), appellant, and Shawn M. Masters ("Shawn"), appellee, were married on February 6, 1987. On May 24, 1987, Meredith Masters was born into this marriage. On June 1, 1989, this marriage was dissolved by an entry of dissolution which included a separation agreement. In this document, Monica was designated as Meredith's custodial parent, and Shawn was entitled to visit the child.

On July 26, 1990, Monica filed a motion with the Common Pleas Court of Allen County requesting permission to remove Meredith from the state of Ohio as required by Loc.R. 23(H) of the Standard Visitation Guidelines of the Court of Common Pleas of Allen County. In the motion, Monica declared:

"In support of her motion, movant states that she has recently remarried and desires to relocate to Etowah, Tennessee. Movant's husband, Scott Seymour, has relatives in Tennessee and the family now desires to live in Etowah, Tennessee. In addition, the movant states that she is employed at Pearl Vision Express in Lima, Ohio and that she anticipates moving into a management position with Pearl Vision Express in the Tennessee area. Movant avers that her career/employment plans require her relocation to Tennessee."

On August 13, 1990, Shawn filed a memorandum in opposition to Monica's motion and a Motion for Modification of Custody. In this motion, Shawn asked to be designated as Meredith's custodial parent.

After hearing two days of testimony, Referee Richard E. Cheney issued a report recommending that Monica's motion to leave the state should be overruled. In the report, the referee declined to decide the merits of Shawn's motion to modify custody until Meredith was removed from the state.

The trial court rejected the referee's first report and remanded the case to the referee so that the merits of Shawn's motion to modify custody could be determined. The referee then issued a supplemental report which found that:

"[T]he Referee cannot find a change of circumstances to warrant a modification of custody except for the removal of the child from this area."

The supplemental report also stated:

"Now that the Referee has been Ordered to make a decision, the Referee therefor [sic ] presumes that the Plaintiff [Monica] fully intends to move from this area even though she does not have a job in Tennessee at this time and therefore the Referee finds a substantial change of circumstances and that there can be possible emotional harm to the chid [sic ]."

The referee then recommended that Shawn's motion to modify custody be sustained.

The trial court affirmed the referee's initial and supplemental reports. It also overruled Monica's objections to the reports. When addressing Monica's objection which contested the referee's presumption that Monica intended to leave the state, the trial court noted:

"Based upon the independent review, this Court concludes that Monica Masters does intend to leave Ohio and relocate in Tennessee. She states the same in her motion. To now argue that no such move is imminent is ludicrous. The removal of the child from Ohio to Tennessee is a significant change of circumstance to permit this Court to consider a modification of custody."

The Court of Appeals for Allen County affirmed the trial court's decision.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Clayton P. Osting, Delphos, for appellant.

Daley, Balyeat, Balyeat & Leahy and Andrew C. Balyeat, Lima, for appellee.

PFEIFER, Justice.

It has long been a recognized rule of law that for a reviewing court to overturn a trial court's determination of custody, the appellate court must find that the trial court abused its discretion. The abuse of discretion standard has been defined as " ' "more than an error at law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." ' " Miller v. Miller (1988), 37 Ohio St.3d 71, 73-74, 523 N.E.2d 846, 849.

We find that when the trial court sustained Shawn's motion to modify custody, it abused its discretion.

Courts are not permitted to modify custodial arrangements on a whim. Instead, former R.C. 3109.04(B)(1) ¹ requires:

"Except as provided in division (B)(2) of this section, the court shall not modify a prior custody decree unless it finds that the custodial parent or one of the joint custodial parents continuously and willfully has denied the other parent his right to visitation in accordance with an order of the court, or 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, his...