Davis v. Flickinger

• Decision Date: 12 February 1997
• Docket Number: No. 95-2208,95-2208
• Citation: 674 N.E.2d 1159,77 Ohio St.3d 415
• Parties: DAVIS, n.k.a. Baker, Appellee, v. FLICKINGER, Appellant.
• Court: Ohio Supreme Court

Page 415

77 Ohio St.3d 415

674 N.E.2d 1159

DAVIS, n.k.a. Baker, Appellee, v. FLICKINGER, Appellant.

No. 95-2208.

Supreme Court of Ohio.

Submitted Nov. 12, 1996.

Decided Feb. 12, 1997.

SYLLABUS BY THE COURT

1. R.C. 3109.04 requires a finding of a "change in circumstances." Such a determination when made by a trial judge should not be disturbed, absent an abuse of discretion.

2. 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.

Plaintiff-appellee Melissa Lin Davis, n.k.a. Melissa Lin Baker, and defendant-appellant Dwayne Kevin Flickinger met sometime in 1986 and dated for about five years. During that relationship, an out-of-wedlock son named Dylan Kevin Flickinger was born on April 26, 1989. Flickinger has always acknowledged paternity of Dylan. Flickinger and Davis have never resided together.

When Davis returned to work after Dylan was born, Flickinger kept and cared for Dylan during the day. This was still the arrangement up to the time of the August 1994 hearing. Flickinger had birthday parties for Dylan, took him skiing, sailing, swimming, and horseback riding, and to Sea World, the park, and the library. Flickinger also placed Dylan in a preschool program. When Dylan was in the care of Davis, she provided a similarly rich environment. Specifically, Davis took Dylan to parks, family reunions, and church. The family barbecued, went boating and fishing, and played baseball, soccer, and educational games.

When the romantic relationship between the parties waned, Davis filed a paternity action. Pursuant to Flickinger's acknowledgment, the trial court formally established paternity on June 1, 1992. On October 7, 1992, the trial court, over Flickinger's objection, named Davis the residential parent and legal custodian, and granted Flickinger liberal visitation. At first, communications and visitation remained flexible and satisfactory. However, when Davis married Rick Baker in November 1993, the relationship between the parties deteriorated, and Flickinger and Davis's husband had several confrontations. After the marriage, Davis permitted her new husband to increasingly handle visitation issues. Davis filed a motion to terminate visitation on December 22, 1993, three days before Christmas and within a month of her marriage to Rick Baker. In January 1994, Flickinger filed a motion to modify visitation. Eventually, Davis denied Flickinger visitation on Father's Day, Memorial Day, and other occasions in 1994. Dylan began kindergarten in August 1994, making compliance with the original schedule of visitation impossible.

The trial court held a three-day hearing, at which more than twenty witnesses testified. On October 24, 1994, the trial judge issued an eleven-page opinion denying Davis's motion to terminate visitation, granting Flickinger's motion to modify custody, and designating Flickinger as the residential parent. The trial court found that the new school schedule and the conflict that had developed between the parties constituted a change of circumstances sufficient to warrant an inquiry into whether the best interest of the child would be served by a change of custody. Further, the trial court found that the harm likely to be caused by a change of environment was outweighed by the advantages of the change of environment to the child. Accordingly, after examining the factors listed in R.C. 3109.04(F)(1), the court ordered a change of custody from Davis to Flickinger.

On September 19, 1995, the Court of Appeals for Tuscarawas County, in a split decision, reversed and remanded. The appellate court found that the testimony did not rise to the level of a substantial change of circumstances and that the trial court had abused its discretion and committed a mistake of law. Specifically, the appellate court found that the school schedule and the conflict between the parties did not constitute a substantial change of circumstances. This cause is now before this court pursuant to the allowance of a discretionary appeal.

Day, Ketterer, Raley, Wright & Rybolt, Raymond T. Bules and Jill Freshley Otto, Canton, for appellee.

Keith McNamara, Cincinnati, for appellant.

LUNDBERG STRATTON, Justice.

R.C. 3109.04 requires a finding of a "change in circumstances." Such a determination when made by a trial judge should not be disturbed, absent an abuse of discretion. 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, including a change in circumstances because of a child's age and consequent needs, as well as increased hostility by one parent (and that parent's spouse) which frustrates cooperation between the parties on visitation issues.

Because we find that the trial judge did not abuse his discretion in finding a change in circumstances sufficient to warrant a change of custody, we reverse the court of appeals and reinstate the order of the trial judge awarding custody to Dwayne Flickinger.

First, we must analyze the meaning and legislative intent of R.C. 3109.04 in requiring a "change in circumstances." R.C. 3109.04(E)(1)(a) 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, his 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." (Emphasis added.)

Lower courts have varied widely in their interpretation of the meaning of "change in circumstances," some requiring the change to be "substantial." Perz v. Perz (1993), 85 Ohio App.3d 374, 619 N.E.2d 1094. Chief Justice Moyer, while on the Tenth District Appellate Court, stated: " 'The changed conditions, we stress, must be substantiated, continuing, and have a materially adverse effect upon the child. The latter is the paramount issue.' " Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 OBR 479, 483, 445 N.E.2d 1153, 1157, quoting Wedren v. Wedren (Aug. 27, 1974), Franklin App. No. 74AP-103, unreported. The Wyss case required the change to be "substantiated" rather than "substantial." However, R.C. 3109.04 requires only a finding of a "change in circumstances" before a trial court can determine the best interest of the child in considering a change of custody. Nowhere in this statute does the word "substantial" appear.

In this case, the court of appeals clearly took an approach of requiring a "substantial" change. The term "substantial" appears repeatedly throughout its opinion and always in conjunction with "change." In doing so, the court of appeals appeared to require a higher burden of proof than required by statute. In reality, however, the court of appeals merely seems to substitute its judgment for that of the trial bench, rather than deciding the case on an abuse of discretion standard.

Clearly, there must be a change of circumstances to warrant a change of custody, and the change must be a change of substance, not a slight or inconsequential change. The nomenclature is not the key issue. As the Wyss court aptly stated:

"The clear intent of that statute 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 children 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." Wyss, 3 Ohio App.3d at 416, 3 OBR at 483, 445 N.E.2d at 1157.

In determining whether a "change" has occurred, we are mindful that custody issues are some of the most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must have wide latitude in considering all the evidence before him or her--including many of the factors in this case--and such a decision must not be reversed absent an abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846.

The standard for abuse of discretion was laid out in the leading case of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, but applied to custody cases in Bechtol v. Bechtol (1990), ...