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85 Ohio App. 3d 374

619 N.E.2d 1094

Perz v. Perz

Ohio Court of Appeals

Decided March 19, 1993

This page is marked noindex.

Ohio Court of Appeals · decided 1993-03-19

Key passage — most relied on by later courts

““In matters of child custody, the best interest of the child has long been the overriding consideration. * * * 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 interest 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 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. * * * What becomes for us the gravamen of the situation concerns the extent of the change that must be shown through the passage of time. A literal application of the statute would lead to the conclusion that any change in the child’s age would allow the court to in”

quoted by 4 later decisions, including 107 Ohio App. 3d 633 - Butler v. Butler, Weisberg v. Sampson, Unpublished Decision (7-14-2006)

“"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) The wishes of the child's parents regarding the child's care; (b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest; (d) The child's adjustment to the child's home, school, and community; (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court — approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; (h) Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or”

quoted by 3 later decisions, including In Re Custody of M.B., Unpublished Decision (7-21-2006), N.E. v. J.E.

Relies on Miller v. Miller · Superior's Brand Meats, Inc. v. Lindley · 146 Ohio St. 93 - Dailey v. Dailey

Good law ✅— No negative treatment on recordhow we know

Decided 1993-03-19

How this case has been cited

Cited by 54 later decisions — most recently September 2025 · most notably Davis v. Flickinger (1997), In re James (2007)

54 state decisions

2001993200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

*375 Sherck, Judge.

¶1 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 of the children, we reverse and remand.

¶2 Appellant, Richard Perz, Jr., married appellee Kathleen Worden, f.k.a. Kathleen Perz, in 1977. They had two children: Richard III, born in 1978, and 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.

¶3 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.”

¶4 R.C. 3109.04(E)(1)(a) provides that:

“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.”

¶5 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 *376 its discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846. 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.

¶6 In matters of child custody, the best interest 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 interest of the child should be real, but not insurmountable.

¶7 In this case, appellant argues that the passage of time is a sufficient change of circumstances 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 App.3d 342, 584 N.E.2d 41 (discussing “tender years doctrine”). What becomes for us the gravamen of the situation concerns the extent of the change that must be shown through the passage of time. A literal application of the statute would lead to the conclusion that any change in the child’s age would allow the court to inquire further. A child ages with each passing minute, yet to allow a court to intervene in the life of a family merely because of the passage of an instant would be to remove all meaning from the relevant clause of the statute. In short, such an application would lead to absurd results, and generally courts do not construe statutes to that end. See Superior’s Brand v. Lindley (1980), 62 Ohio St.2d 133, 136, 16 O.O.3d 150, 152, 403 N.E.2d 996, 999. Therefore, we must conclude that the legislature intended something more reasonable — a significant passage of time. 1

¶8*377 Here, the children had progressed from infancy to a distinct and considerably different phase of their development. A child’s needs change over such a period of time. The type of supervision necessary also changes. A child will change in physical, mental and moral development as the child leaves infancy and enters more advanced stages of life. We find that the passage of such a period of time is a sufficient change of circumstances to warrant a further inquiry into the best interest of the children.

¶9 In applying this concept to the case before us, we have determined that the trial court’s findings should have led the trial court to conclude that the change-of-circumstances barrier had been overcome. The passage of the children from infancy to early adolescence is a sufficient change of circumstance to warrant an inquiry into the question of whether the interest of the children would best be served by their remaining with appellee, or by a change in custody. Therefore, we find that the trial court abused its discretion by unreasonably faffing to conclude that a change in circumstances existed and by refusing to examine the ultimate custody question. Accordingly, appellant’s assignment of error is well taken.

¶10 On consideration whereof, the court finds that substantial justice has not been done the party complaining. The judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, is reversed and this cause is remanded for further proceedings not inconsistent with this opinion. It is ordered that appellee pay the court costs.

¶11 Judgment reversed.

Handwork and Melvin L. Resnick, JJ., concur.
1

¶12 . In Dailey v. Dailey (1945), 146 Ohio St. 93, 32 O.O. 29, 64 N.E.2d 246, the court ruled that there has been an adequate change of circumstances when a child reaches the age where, under the law in effect at that time, the child could choose the custodial parent. R.C. 3109.04(B), in effect at the time of the instant custody hearing, states that the wishes of a child with "sufficient reasoning ability to express his wishes” are not dispositive, but are a substantial factor in the court's allocation of parental rights and responsibilities. In applying the reasoning of Dailey to the statute in effect at the time of the hearing, we conclude that a child’s attainment of "sufficient reasoning ability” would be a substantial change in a material *377 circumstance such as would justify a further inquiry into the best interest of the child. However, in this case, the court did not make any findings concerning the effect of the passage of time on the children's reasoning ability.

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