Masters v. Masters

             OPINIONS OF THE SUPREME COURT OF OHIO
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Masters, Appellant, v. Masters, Appellee.
[Cite as Masters v. Masters (1994),     Ohio St. 3d     .]
Domestic relations -- Custody -- Trial court abuses its
     discretion when it uses a document filed in compliance
     with a local rule as the only evidence to remove a child
     from the mother's custody -- Filing of a motion to remove
     child from Ohio that merely reflects mother's desire to
     leave the state does not on its own constitute a
     "substantial change" in circumstances under R.C. 3109.04.
     (No. 92-668 -- Submitted February 1, 1994 -- Decided April
27, 1994.)
     Appeal from the Court of Appeals for Allen County, No.
1-91-23.
     Monica L. Masters ("Monica"), appellant, and Shawn M.
Masters ("Shawn"), appellee, were married on February 6, 1987.
On May 24, 1987, Meredith Masters was born into this marriage.
On June 1, 1989, this marriage was dissolved by an entry of
dissolution which included a separation agreement. In this
document, Monica was designated as Meredith's custodial parent,
and Shawn was entitled to visit the child.
     On July 26, 1990, Monica filed a motion with the Common
Pleas Court of Allen County requesting permission to remove
Meredith from the state of Ohio as required by Loc. R. 23(H) of
the Standard Visitation Guidelines of the Court of Common Pleas
of Allen County. In the motion, Monica declared:
     "In support of her motion, movant states that she has
recently remarried and desires to relocate to Etowah,
Tennessee. Movant's husband, Scott Seymour, has relatives in
Tennessee and the family now desires to live in Etowah,
Tennessee. In addition, the movant states that she is employed
at Pearl Vision Express in Lima, Ohio and that she anticipates
moving into a management position with Pearl Vision Express in
the Tennessee area. Movant avers that her career/employment
plans require her relocation to Tennessee."
     On August 13, 1990, Shawn filed a memorandum in opposition
to Monica's motion and a Motion for Modification of Custody.
In this motion, Shawn asked to be designated as Meredith's
custodial parent.
     After hearing two days of testimony, Referee Richard E.
Cheney issued a report recommending that Monica's motion to
leave the state should be overruled. In the report, the
referee declined to decide the merits of Shawn's motion to
modify custody until Meredith was removed from the state.
     The trial court rejected the referee's first report and
remanded the case to the referee so that the merits of Shawn's
motion to modify custody could be determined. The referee then
issued a supplemental report which found that:
     "[T]he Referee cannot find a change of circumstances to
warrant a modification of custody except for the removal of the
child from this area."
     The supplemental report also stated:
     "Now that the Referee has been Ordered to make a decision,
the Referee therefor [sic] presumes that the Plaintiff [Monica]
fully intends to move from this area even though she does not
have a job in Tennessee at this time and therefore the Referee
finds a substantial change of circumstances and that there can
be possible emotional harm to the chid [sic]."
     The referee then recommended that Shawn's motion to modify
custody be sustained.
     The trial court affirmed the referee's initial and
supplemental reports. It also overruled Monica's objections to
the reports. When addressing Monica's objection which
contested the referee's presumption that Monica intended to
leave the state, the trial court noted:
     "Based upon the independent review, this Court concludes
that Monica Masters does intend to leave Ohio and relocate in
Tennessee. She states the same in her motion. To now argue
that no such move is imminent is ludicrous. The removal of the
child from Ohio to Tennessee is a significant change of
circumstance to permit this Court to consider a modification of
custody."
     The Court of Appeals for Allen County affirmed the trial
court's decision.
     This cause is now before this court pursuant to the
allowance of a motion to certify the record.

     Clayton P. Osting, for appellant.
     Daley, Balyeat, Balyeat & Leahy and Andrew C. Balyeat, for
appellee.

     Pfeifer, J.     It has long been a recognized rule of law
that for a reviewing court to overturn a trial court's
determination of custody, the appellate court must find that
the trial court abused its discretion. The abuse of discretion
standard has been defined as "'"more than an error at law or
judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable."'" Miller v. Miller (1988), 

, 

.
     We find that when the trial court sustained Shawn's motion
to modify custody, it abused its discretion.
     Courts are not permitted to modify custodial arrangements
on a whim. Instead, former R.C. 3109.04(B)(1)1 requires:
     "Except as provided in division (B)(2) of this section,
the court shall not modify a prior custody decree unless it
finds that the custodial parent or one of the joint custodial
parents continuously and willfully has denied the other parent
his right to visitation in accordance with an order of the
court, or 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 interest of the child. In applying these standards, the
court shall retain the custodian or both of the joint
custodians designated by the prior decree, unless one of the
following applies:
     "(a) The custodian or both joint custodians agree to a
change in custody.
     "(b) The child, with the consent of the custodian or of
both joint custodians, has been integrated into the family of
the person seeking custody.
     "(c) The harm likely to be caused by a change of
environment is outweighed by the advantages of the change of
environment to the child.
     "(d) The custodial parent or one of the joint custodial
parents continuously and willfully has denied the other parent
his or her right to visitation in accordance with an order of
the court."
     Although it might be possible to reverse the trial court
because its finding that the intention of one parent to leave
the state does by itself empower a court to modify custody
pursuant to former R.C. 3109.04(A), we instead focus on the
court's determination that Monica intended to leave Ohio.
     In oral argument, appellee's counsel conceded that the
only reason why the trial court modified custody was it
determined that Monica intended to move from the state. In its
opinion, the trial court cites Monica's motion to remove
Meredith from the state as the only evidence to support its
conclusion that Monica intended to leave the state.
     We hold that it is an abuse of discretion for a court to
use a document filed in compliance with a local rule as the
only evidence to remove the child from the mother's custody.
The filing of a motion to remove the child from Ohio that
merely reflects the mother's "desire" to leave the state does
not on its own constitute a substantial change in circumstances
under former R.C. 3109.04.
     To hold to the contrary would produce an unconscionable
result. A custodial parent contemplating the possibility of
moving from the state would be deterred from complying with the
local rule, because, by complying with the rule, she would be
immediately jeopardizing her custodial rights with her child --
whether or not the motion is granted. This absurd result was
not intended by the General Assembly when it specifically
delineated in former R.C. 3109.04(A) those circumstances which
warrant a modification of custody.
     The trial court abused its discretion because we hold it
is unconscionable for a trial court to modify custody when the
only evidence supporting its conclusion is the filing of a
motion to remove the child from the state, which reflects a
desire to leave the state and which must be filed according to
local rule. The record reveals no defensible reason to modify
the custody of Meredith Masters.
     Accordingly, the judgment of the court of appeals is
reversed.
                                 Judgment reversed.
     A.W. Sweeney, Douglas, Young, Resnick and F.E. Sweeney,
JJ., concur.
     Moyer, C.J., concurs in judgment only.
     Frederick N. Young, J., of the Second Appellate District,
sitting for Wright, J.
FOOTNOTES:
1    This version of R.C. 3109.04 was in effect at the time
that Shawn filed his motion to modify custody. See 143 Ohio
Laws, Part IV, 5957, 5965.