Jones v. Jones, 2007 Ohio 4255 (Ohio App. 8/14/2007)
| Decision Date | 14 August 2007 |
| Docket Number | No. 06CA25.,06CA25. |
| Citation | 2007 Ohio 4255 |
| Parties | Jerilyn K. Jones, Plaintiff-Appellee, v. Jeffrey D. Jones, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Jon C. Hapner, Hillsboro, Ohio, for Appellant.
Jessica A. Little, West Union, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Jeffrey Jones appeals the trial court's decision modifying the parties' prior allocation of parental rights and responsibilities. He contends that in finding a change in circumstances occurred, the trial court improperly considered his relocation and remarriage, which arose after Jerilyn Jones filed her motion to modify. However, Mr. Jones failed to object initially when the court indicated it would explore these issues. He also presented evidence regarding the subsequent events and proceeded as if they were at issue. Therefore, he has waived the right to appeal the court's consideration of them.
{¶2} Mr. Jones additionally asserts that Ms. Jones failed to set forth a sufficient change in circumstances in her motion to modify and answers to interrogatories. Even if we assume Ms. Jones failed to allege a sufficient change in circumstances in her motion and answers, the evidence presented at the hearing supports the trial court's change in circumstances finding, i.e., the evidence shows that Mr. Jones relocated to Washington Courthouse, away from the children's family support system.
{¶3} Next, Mr. Jones argues that the magistrate erred by overruling his motion to dismiss, which he made following Ms. Jones's presentation of evidence. Because Mr. Jones's oral motion was very general in nature and because he subsequently failed to specifically object to the magistrate's decision on this basis, he has waived the issue on appeal.
{¶4} Mr. Jones also contends that the trial court's decision is against the manifest weight of the evidence and contrary to law. We do not review a trial court's parental rights and responsibilities modification decision under the manifest weight of the evidence standard. Instead, we review these judgments for an abuse of discretion, which means we defer to rational decisions. The trial court could have reasonably determined that Mr. Jones's relocation and remarriage constituted a change in circumstances. Mr. Jones's decision to relocate caused the children to be removed from the area of their parents' former marital home, where at least the older child had attended school, had engaged in extracurricular activities, and had forged friendships. The children also shared a close relationship with extended family in the area. The trial court also could have rationally concluded that the modification would serve the children's best interests by preserving stability. Mr. Jones's assertion that the trial court was required to find an adverse affect upon the children before modifying the parental rights and responsibilities is meritless, because he bases this argument upon an outdated version of the statute.
{¶5} Nor did the trial court abuse its discretion by determining that the advantages of modification outweighed any potential harm. The modification preserves the children's stability by ensuring that they will attend school in the same general area and by maintaining their close contact with extended family.
{¶6} Accordingly, we overrule all the assignments of error and affirm the trial court's judgment.
{¶7} The parties were married and had two children. They later divorced and the court allocated parental rights to Mr. Jones and awarded Ms. Jones "Option 2" parenting time. She subsequently filed a motion to modify the "shared parenting plan" even though one did not exist. After Mr. Jones filed a motion to strike because there was no shared parenting plan, Ms. Jones filed a "Motion for a Change of Custody." She later filed another motion to modify "custody" and a proposed shared parenting plan. She alleged that a change in circumstances had occurred to warrant a modification.
{¶8} Mr. Jones served interrogatories upon Ms. Jones asking her to specify the change in circumstances. She answered that the following facts constituted a change in circumstances:
{¶9} At a hearing before a magistrate, Ms. Jones also pointed out that Mr. Jones had subsequently relocated with the children to Washington Courthouse to live with his new wife and her two step-children. There was no objection to this testimony. The Washington Courthouse area daycare provider testified that she watched the children for a total of about five or six days since Mr. Jones's move to the area. She stated that the children seemed happy and well-adjusted with their new step-family.
{¶10} Ms. Jones testified that after her divorce, she moved from the Columbus area to Winchester, Ohio. Before she and Mr. Jones divorced, they lived in Lynchburg, Peebles, and Lebanon. Her oldest child attended kindergarten at Peebles Elementary School, where he made several friends. He also played tee-ball in Peebles. She stated that he seemed happy with the school. Her mother lives across the street and cares for the children when she works.
{¶11} On direct examination by Mr. Jones's counsel, Mr. Jones's new wife, Beverly Jones, testified that his children and her children interact like siblings and that they play well together. She stated that the children have adjusted well to their new home in response to questions posed by counsel concerning the marriage and Mr. Jones's relocation.
{¶12} Mr. Jones testified that he moved to Washington Courthouse primarily because of the child care situation. He stated that his new wife had used the Washington Courthouse area child care provider for five years with her own children and felt very comfortable with her. He testified that his children get along well with his new wife's children and seem happy in Washington Courthouse.
{¶13} After the parties completed presenting evidence, Mr. Jones's counsel argued that Ms. Jones failed to show any change in circumstances and she failed to show that either the relocation or remarriage has negatively affected the children. He did not mention or object to the evidence introduced concerning the remarriage and relocation.
{¶14} The magistrate subsequently found that a change in circumstances had occurred, that modifying the prior allocation would serve the children's best interests, and that the advantages of the modification outweighed any harm. She recommended that the court adopt Ms. Jones's proposed shared parenting plan.
{¶15} Mr. Jones objected to the magistrate's decision. He argued, in part, that the evidence does not support the magistrate's change in circumstances or best interests findings, or her finding that the advantages of the modification outweigh the potential harm. He further asserted that (1) Ms. Jones failed to allege valid grounds for modifying the parental rights and responsibilities, (2) his remarriage and relocation did not merit a modification, and (3) the magistrate improperly considered his remarriage and relocation because these facts arose after Ms. Jones filed her motion to modify.
{¶16} The trial court overruled Mr. Jones's objections relating to the magistrate's modification of the parental rights and responsibilities. The court found a sufficient change in circumstances: (1) Ms. Jones moved back to the area where she was involved with her children; (2) she participated in field trips with the children and attended their sporting events; (3) she lived within minutes of Mr. Jones, and her mother lived across the street and was willing to provide child care; (4) the original decree stated that Mr. Jones would provide parenting time to Ms. Jones if he was working and she was not, but the evidence indicates he would deny her this parenting time; and (5) Mr. Jones married and moved to Fayette County away from Ms. Jones and all other support from his family and claims that he moved primarily because of child care reasons.
{¶17} The court found that Ms. Jones supplemented her motion with answers to interrogatories, which alleged grounds for a change in circumstances. The court additionally noted that it set the matter for a hearing on Mr. Jones's objections to the magistrate's decision, but Ms. Jones and her counsel chose not to attend.
{¶18} The court further found that modifying the parental rights and responsibilities would serve the children's best interests and that the advantages of modification outweighed the potential harm. The court adopted Ms. Jones's shared parenting plan.
{¶19} Mr. Jones assigns the following errors:
First Assignment of Error:
The trial court abused its discretion in modifying the custody of the minor children, in that it did not frame the issues to the pleadings that were filed, the evidence failed to establish any change of circumstances to justify the change of custody. [sic]
Second Assignment of Error:
The trial court erred in failing to dismiss the motions at the close of the plaintiff's evidence.
Third Assignment of Error:
The trial court erred in considering the move to Fayette County, Ohio which took place 20 days before the hearing.
Fourth Assignment of Error:
The decision of the trial court is against the manifest weight of the evidence and contrary to law.
{¶20} In his first assignment of error, Mr. Jones asserts that the trial court erred by considering his relocation to Washington Courthouse and his remarriage as a...
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