Kathleen Perz v. Richard Perz, 93-LW-1138
| Decision Date | 01 March 1993 |
| Docket Number | L-92-183,93-LW-1138 |
| Parties | Kathleen Perz, Appellee v. Richard Perz, Jr., Appellant Court of Appeals |
| Court | United States Court of Appeals (Ohio) |
Arnold Gottlieb, for appellee.
Martin Holmes, for appellant.
This is an appeal from the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, which denied a motion for a change in the custody of minor children. Because we find that the trial court abused its discretion in concluding that there had been no change of circumstances in the children, we reverse and remand.
Appellant, Richard Perz, Jr., married appellee Kathleen Worden, f.k.a. Kathleen Perz, in 1977. They had two children Richard III, born in 1978; Kelly, born in 1979. The parties divorced in 1980 when Richard was a toddler and Kelly was an infant. Appellee was awarded custody of both children, and appellant was granted liberal visitation rights.
In 1990, appellant filed a motion seeking to gain custody over both children. In September 1991, a referee conducted the first part of a bifurcated hearing which dealt only with the issue of "changed circumstances." At the time of the hearing, Richard Perz III was thirteen and Kelly Perz was twelve years old. Following the completion of the hearing the referee filed a report recommending denial of the motion on the grounds that appellant had failed to demonstrate any change of circumstances which would warrant a further hearing into the question of whether the best interests of the children would be served by a change of custody. Appellant filed his objections to this report. The trial court overruled those objections, approved the report and denied the motion for change of custody. Appellant then sought review in this court offering as his sole assignment of error:
"THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT A CHANGE HAD NOT OCCURRED IN THE CIRCUMSTANCES OF THE CHILDREN AND THEIR CUSTODIAN AND THAT MODIFICATION OF THE PRIOR CUSTODY DECREE WAS NOT NECESSARY TO SERVE THE BEST INTERESTS OF THE CHILDREN."
R.C 3109.04 provides that:
"The court shall not modify a prior custody decree 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 custodian, or either joint custodian, and that the modification is necessary to serve the best interests of the child."
Appellant argues that the trial court abused its discretion when it concluded that there has been no change in circumstances warranting a further inquiry into the best interests of the children. Decisions concerning the change of custody of minor children will not be reversed absent a showing that the trial court abused its discretion. Miller v. Miller (1988), 37 Ohio St.3d 71. In order for us to determine whether the trial court's actions were unreasonable and thus an abuse of discretion, we must examine the statutory meaning of what circumstances must be changed and to what degree those circumstances must change.
In matters of child custody, the best interests of the child has long been the overriding consideration. Gishwiler v. Dodez (1855), 4 Ohio St. 615. However, the legislature has seen fit in change of custody actions to erect a barrier that must be hurdled before inquiry can be made on those issues affecting the best interest of the child. That barrier is the initial requirement that there must be a change in the circumstances of the child. This obstacle can best be viewed as the domestic relations version of the doctrine of res judicata. That is, there cannot be a constant relitigation of the same issues. There must be some substantial change of a circumstance that is significant to the question of custody before reexamination of the issues is appropriate. The barrier to inquiry into the best interests of the child should be real, but not insurmountable.
In this case, appellant argues that the passage of time is a sufficient change of circumstances so as to allow an inquiry into the best interest of the children. Certainly, a child's age would be a "circumstance" that would have had a substantial impact on the court's formulation of the original custody order, as the age of the child is a factor that must be considered when making an original custody order. Seibert v. Seibert (1990) 66 Ohio...
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Re v. K.M.
...in the child's best interest, the court must first determine whether a change in circumstances has occurred. Perz v. Perz, 85 Ohio App.3d 374, 376, 619 N.E.2d 1094 (6th Dist. 1993). "The clear intent of [this requirement] is to spare children from a constant tug of war between their parents......