Braatz v. Braatz

• Decision Date: 24 March 1999
• Docket Number: No. 97-2566,97-2566
• Citation: 85 Ohio St.3d 40,706 N.E.2d 1218
• Parties: BRAATZ, Appellee, v. BRAATZ, Appellant.
• Court: Ohio Supreme Court

Page 40

85 Ohio St.3d 40

706 N.E.2d 1218

BRAATZ, Appellee, v. BRAATZ, Appellant.

No. 97-2566.

Supreme Court of Ohio.

Submitted Dec. 1, 1998.

Decided March 24, 1999.

SYLLABUS BY THE COURT

1. Modification of visitation rights is governed by R.C. 3109.051.

2. The party requesting a change in visitation rights need make no showing that there has been a change in circumstances in order for the court to modify those rights. Pursuant to R.C. 3109.051(D), the trial court shall consider the fifteen factors enumerated therein, and in its sound discretion shall determine visitation that is in the best interest of the child.

On July 22, 1994, appellee, Roy Herman Braatz, and appellant, Marsha Lynn Braatz, were divorced. The court designated appellant as the residential parent of the single minor child, Tyler Michael Tsangaris Braatz, born March 26, 1994. The court granted appellee visitation each Wednesday evening from 6:00 p.m. to 8:00 p.m., and each Saturday morning from 9:00 a.m. to 12:00 noon at appellant's home.

On September 28, 1994, appellee moved the court to modify the visitation to that of the court's standard order of companionship. On April 14, 1995, the magistrate held a hearing on the motion. On May 2, 1995, the magistrate filed his report, making findings of fact and recommending that appellee's visitation be extended "to alternate weekends (but not overnight at the present time) beginning at 9:00 A.M. and continuing until 5:00 P.M. on both Saturday and Sunday * * *."

We note that even though on December 21, 1995, appellee filed a request for the preparation of a transcript, no transcript was filed in either the court of appeals or in this court. Lacking a transcript of proceedings and findings of fact by the trial judge, we will rely upon the magistrate's report. In his findings of fact, the magistrate noted that appellee testified to the following facts. Since the divorce, appellee has visited with the child in appellant's home on each scheduled Wednesday evening and Saturday morning. Appellee testified that because of the constant presence of appellant and appellant's mother, he was never alone with the child and was not able to adequately bond with the child. Appellee testified that he now lives in an apartment and has all the necessary facilities to care for the child. He stated that he wishes to play with the child, read to him, and do all the normal and usual things a father would do for his child.

The magistrate also noted the testimony of appellee's mother, Mrs. Betty J. Braatz, who stated that she accompanies appellee to visit the child and that because of the tension in the room, she can tolerate only about forty-five minutes of the visit. According to the magistrate's report, she also testified that she is willing and able to help care for the child if the court grants appellee greater companionship rights.

The magistrate noted that the court originally granted appellee limited companionship rights because of the very young age of the child at the time of the divorce but that now the child is over one-year-old, and appellee testified that the child is physically strong. The magistrate also noted that appellee indicated that he knows how to care for a child of tender years and is able to take on the "additional obligation attendant to longer companionship periods."

On May 12, 1995, appellant filed objections to the magistrate's report, and the trial court adopted the magistrate's findings and recommendations, effective May 17, 1995. On June 7, 1995, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B), and on June 20, 1995, the court ordered the matter to be reheard by the magistrate.

On August 15, 1995, the magistrate held a hearing and filed his decision on September 7, 1995. In his decision, the magistrate noted many of the same findings that he made in his report. In addition, the magistrate noted that appellant testified that she believes that appellee has or had a gambling problem, which appellant believed could pose a danger to the child, and that appellee did not become actively involved with the child when he visited.

Based on these facts, the magistrate recommended that appellee's companionship be "lengthened to alternate weekends (but not overnight at the present time) beginning at 9:00 A.M. and continuing until 3:00 P.M. on both Saturday and Sunday beginning on Saturday, September 9, 1995. The father shall provide transportation both to and from each companionship period. Companionship shall occur at the home of the paternal grandparents."

Both parties filed objections to the magistrate's decision, and on November 30, 1995, the trial court reinstated the visitation rights as set forth in the original divorce decree. Appellee appealed to the court of appeals and on August 12, 1997, the court of appeals reversed and remanded the cause, holding that "the modification of visitation is governed by R.C. 3109.051 and that, upon a request by a non-residential parent for a modification of visitation, the trial court must take into account the factors set forth in R.C. 3109.051(D)." The court of appeals, finding its judgment to be in conflict with the judgment of the Ninth Appellate District Court of Appeals in Jacobs v. Jacobs (1995), 102 Ohio App.3d 568, 657 N.E.2d 580, entered an order certifying a conflict, and we determined that a conflict existed.

Marc E. Dann, Youngstown, for appellee.

Louis E. Katz, Poland, for appellant.

ALICE ROBIE RESNICK, Justice.

The questions that have been certified for our consideration are (1) "Whether a moving party must demonstrate a change of circumstances for a trial court to modify its prior judgment regarding visitation? * * * At issue is whether R.C. 3109.04 or R.C. 3109.051 is applicable to a modification of visitation," and (2) "Whether a trial court is required to set forth findings of fact and conclusions of law upon timely request in proceedings involving a modification of visitation."

R.C. 3109.04 provides in pertinent part:

"(E)(1)(a) 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.

" * * *

"(F)(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to: [a list of factors to be considered]." (Emphasis added.)

R.C. 3109.051 provides in pertinent part:

"(A) If a divorce, dissolution, legal separation, or annulment proceeding involves a child and if the court has not issued a shared parenting decree, the court shall consider any mediation report filed pursuant to section 3109.052 of the Revised Code and, in accordance with division (C) of this section, shall make a just and reasonable order or decree permitting each parent who is not the residential parent to visit the child at the time and under the conditions that the court directs, unless the court determines that it would not be in the best interest of the child to permit that parent to visit the child and includes in the journal its findings of fact and conclusions of law. Whenever possible, the order or decree permitting the visitation shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child. * * * " (Emphasis added.)

In 1986, this court held that "[m]odification of visitation rights is governed by R.C. 3109.05 and the specific rules for determining when a court may modify a custody decree are not equally applicable to modification of visitation rights." Appleby v. Appleby (1986), 24 Ohio St.3d 39, 24 OBR 81, 492 N.E.2d 831, syllabus. The court explained that "R.C. 3109.04 provides specific guidelines for a trial court to follow in determining whether a prior custody decree should be modified. That section is silent as to rights of visitation. R.C. 3109.05 governs visitation rights." Id. at 40, 24 OBR at 82, 492 N.E.2d at 833.

Since Appleby was decided, the General Assembly has substantially amended both statutes, but the reasoning used by this court in Appleby still applies. In 1990, the General Assembly, inter alia, amended R.C. 3109.04(B)(1) to add language allowing a trial court to modify a custody decree if it finds that the custodial parent has been denying the other parent access to the children. 143 Ohio Laws, Part IV, 5965 (Am.Sub.H.B. No. 591). In 1991, the General Assembly removed the mention of alimony in R.C. 3109.04(A) and inserted the term "legal separation." 143 Ohio Laws, Part III, 5461 (Am.Sub.H.B. No. 514). Also, in 1991, the General Assembly overhauled R.C. 3109.04, which included the filing of "shared parenting" plans and the change of the terms "custody and control" to "parental rights and responsibilities." 143 Ohio Laws, Part I, 111-126 (Am.Sub.S.B. No. 3). In 1993, Am.Sub.S.B. No. 115 amended R.C. 3109.04(D)(1) to refer to plural "parents." 145 Ohio Laws, Part I, 1045. And in 1994, the General Assembly, inter alia, made changes to the language of R.C. 3109.04(E) governing the modification of shared parenting plans. 145 Ohio Laws, Part III, 5988-5989 (Am.Sub.H.B. No. 415). Although the language used in the statute has changed since this court decided Appleby, the statute continues to govern custody rights, now referred to as "parental rights and...