Wyss v. Wyss

• Decision Date: 01 April 1982
• Citation: 445 N.E.2d 1153,3 OBR 479,3 Ohio App.3d 412
• Parties: , 3 O.B.R. 479 WYSS, Appellant, v. WYSS, Appellee.
• Court: Ohio Court of Appeals

Page 412

3 Ohio App.3d 412

445 N.E.2d 1153, 3 O.B.R. 479

WYSS, Appellant, v. WYSS, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 1, 1982.

Syllabus by the Court

1. Custody of a child will not be changed under R.C. 3109.04(B) (now R.C. 3109.04[B] ) merely on a showing by the moving party that he or she can provide a better environment than that provided by the parent with custody.

2. Under R.C. 3109.04(B) (now R.C. 3109.04[B] ) facts "unknown to the court at the time of the prior decree" may include facts which were known to the adverse party, but not the court, at the time of the prior decree.

3. Change of custody cannot properly be used as a penalty for past misconduct where the misconduct is not continuing and not shown to materially adversely affect the child.

4. Immoral conduct or cohabitation of a custodial parent with a non-spouse may not be the basis for a change of custody without the showing of a material adverse effect on the child.

Dustin J. Redmond, Jr., Galion, and Laborers' Local 423 Legal Service, for appellant.

David T. Bainter, Columbus, for appellee.

MOYER, Judge.

This matter is before us on the appeal of Julia D. Wyss (Julia) from a judgment of the Domestic Relations Division of the Court of Common Pleas of Franklin County sustaining the motion of the appellee, William M. Wyss (William), for a change of custody of the parties' two minor children.

The Wysses dissolved their marriage in August 1980 by a decree that gave Julia custody of the parties' two minor children. On January 23, 1981, William filed a motion to change custody to him. Attached to the motion was an affidavit executed by Julia's brother and an affidavit executed by her father. The affidavits state that Julia has "slept with her male friend, Mike Rosser, on various occasions in an abode shared by the two minor children." The affidavits also state that Julia has no permanent address and that the children, ages eight and three years, have slept in their mother's automobile on various occasions. The affidavit of Julia's father also states that the older child has not attended school since January 12, 1981, due to a lack of a permanent address, and that Julia and Rosser have been traveling between various points in Ohio.

The trial court, on January 23, 1981, entered an ex parte order granting William temporary possession of the two minor children until the date of the hearing scheduled for March 31, 1981. However, a hearing was not held by a referee of the trial court until May 28, 1981.

The trial court, after overruling Julia's objections to the report of the referee, adopted the recommendation of the referee and awarded custody of the children to William with the provision that the children remain with William's parents in Bucyrus until he was able to relocate there. The appellant, Julia Wyss, raises the following four assignments of error in support of her appeal:

"1. The judgment is against the manifest weight of the evidence.

"2. The conclusions of the court below are insufficient as a matter of law.

"3. The post-decree ex parte temporary custody order is contrary to law.

"4. The court below committed prejudicial error in considering affidavits not in evidence."

We will dispose of the third assignment of error first. The issue raised by the third assignment of error is moot because the order of the trial court granting William temporary possession of the minor children merged with the final judgment of the trial court, and the question of whether the trial court had the authority to enter such an order is, therefore, moot at this time.

The first and second assignments of error are interrelated and are considered together. The Ohio General Assembly has established statutory guidelines to be used by the trial court in determining whether to modify a custody order. At the time of the hearing in this case, these guidelines were found in R.C. 3109.04(B) and (C). ¹ It is clear from a close reading of division (B) of R.C. 3109.04 (now R.C. 3109.04[B] ) that modification of a custody order is to be granted only where changed circumstances or circumstances not known to the trial court at the time of the original order cause the trial court to conclude that a modified custody order is in the best interest of the child.

R.C. 3109.04(B) then provides that the parent in custody shall retain custody unless one of the conditions set out in subdivisions (1) through (3) (now R.C. 3109.04[B][a], [b] and [c] ) is found to exist by the trier of fact. Such a test places upon the party seeking a modification the burden of showing that (1) the custodian agrees to a change in custody, (2) the child, with the consent of the custodian, has been integrated into the family of the person seeking custody, or, (3) as under the facts of this case, the environment provided by the parent with custody significantly endangers the child's physical health or his mental, moral or emotional development. It is not sufficient for the moving party to merely show that he can provide a better environment than the environment provided by the parent with custody.

The first finding to be made by the court is whether facts that have arisen since the prior decree, or facts which were unknown to the court at the time of the prior decree, indicate that a change in circumstances has occurred. With the exception of Julia's live-in arrangement with Rosser at the time of the issuance of the decree, all the facts in the record before us appear to have occurred after said decree was issued. Reference has been made to the fact that William knew at the time of the issuance of the decree that his wife, Julia, was living with Rosser and that such conduct cannot, therefore, be considered a fact that has occurred since the issuance of the decree. Such an argument misinterprets the following phrase contained in R.C. 3109.04(B). " * * * which were unknown to the court at the time of the prior decree * * *." It is the court's knowledge, or lack thereof, of circumstances at the time of the issuance of the decree that is important in determining whether facts have arisen which were unknown prior to the issuance of the decree. The fact that the adverse party knew of such circumstances is not relevant. Young v. Young (March 22, 1979), Franklin App. No. 78AP-677, unreported. See, also, Stellfox v. Stellfox (July 24, 1979), Franklin App. No. 79AP-69, unreported.

There is no indication in the record before us that the trial court was aware of Julia's live-in arrangement with Rosser at the time the decree was entered. However, while a custodial parent's living arrangement with another person may be a basis upon which that parent loses custody of children, that is not the result where, at the time of the hearing, such activity has ceased and, in fact, as in this case, the custodial parent is married to the person with whom she had previously lived. Change of custody cannot properly be used as a penalty for past misconduct where the misconduct is not continuing and not shown to materially adversely affect the child. Wedren v. Wedren (Aug. 27, 1974), Franklin App. No. 74AP-103, unreported. There is no evidence in the record before us that the children were exposed to any sexual conduct by Julia and Rosser or that they were in any way materially affected by the paramour relationship, other than the residential instability caused, in part, by Julia and Rosser's desire to be together.

R.C. 3109.04(B)(3) (now R.C. 3109.04[B][c] ) is the statutory provision that directly relates to the circumstances in this case. It permits a change of custody if:

"The child's present environment endangers significantly...