Bentley v. Harper

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[Cite as Bentley v. Harper, 2019-Ohio-5420.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY JACOB R. BENTLEY : Plaintiff-Appellee, : v. : LORI A. HARPER Defendant-Appellant. Case No. 18CA3858 DECISION AND JUDGMENT ENTRY : : RELEASED 12/19/2019 APPEARANCES: Matthew F. Loesch, Portsmouth, Ohio, for appellant. Robert M. Johnson, Portsmouth, Ohio for appellee. Hess, J. {¶1} Appellant Lori A. Harper appeals the trial court’s decision denying her request to relocate to Wyoming with her child, L.H. Appellee Jacob R. Bentley is L.H.’s father and opposed the relocation request. Harper contends that the trial court’s decision was against the manifest weight of the evidence and was an abuse of discretion because the trial court failed to properly recognize the significant benefits of a move to Wyoming. Harper also argues that the trial court’s decision infringed upon her constitutional right to relocate with the child. {¶2} We find the trial court did not act unreasonably, unconscionably, or arbitrarily when it denied Harper’s request to relocate. The record contains some competent and credible evidence to support the trial court’s judgment. The trial court’s findings are supported by the guardian ad litem’s recommendations, witnesses’ testimony Scioto App. No. 18CA3858 2 and a number of exhibits containing communications between Harper and Bentley. We overrule Harper’s assignment of error and affirm the trial court’s judgment. I. FACTS {¶3} Lori Harper and Jacob Bentley are the parents of L.H. They were never married to each other. Lori Harper has been married to Frankie Harper since 2008. L.H. was born in September 2013 and resulted from Lori Harper’s extramarital affair with Bentley. Bentley filed a paternity suit in January 2014. Since August 2014, Harper and Bentley have provided for the care, custody, maintenance, and control of L.H. through a shared parenting plan. Harper is the residential parent for school purposes. In June 2015, Bentley filed a motion for emergency custody of L.H. because of concerns of physical abuse. The trial court granted an emergency order suspending Harper’s parenting time. The parties agreed to give Harper supervised visitation rights pending a final order on parenting time. Bentley ultimately dismissed his claim and the trial court vacated its temporary order granting custody to Bentley and reinstated the prior orders, including the shared parenting plan. {¶4} In May 2018, Harper filed a notice of intent to relocate to Cheyenne, Wyoming and requested a hearing to determine whether it was in the child’s best interest to revise the parenting time schedule. Bentley filed his objection to relocation and a motion to modify parental rights and responsibilities. Bentley asked to be designated the residential parent for school purposes and for a revised parenting time schedule. The parties agreed to an appointment of a guardian ad litem. The trial court held a hearing on the matter in October 2018 and issued a decision and judgment entry denying Harper’s Scioto App. No. 18CA3858 3 request to relocate, denying Bentley’s motion to modify parental rights and responsibilities, and ordering the shared parenting plan remain in effect. {¶5} Harper appealed. II. ASSIGNMENTS OF ERROR {¶6} Harper assigns the following error for our review: I. THE TRIAL COURT’S DECISION IN THE INSTANT CASE DENYING APPELLANT’S REQUEST TO RELOCATE CONSTITUTED AN ABUSE OF DISCRETION IN THAT ITS DECISION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. III. LAW AND ANALYSIS A. Standard of Review {¶7} Modifications to a shared parenting plan are reviewed under an abuse of discretion standard. Hall v. Hall, 4th Dist. Adams No. 16CA1030, 2017-Ohio-8968, ¶ 19. An abuse of discretion implies that the trial court acted unreasonably, unconscionably, or arbitrarily. Lauer v. Positron Energy Resources, Inc., 4th Dist. Washington No. 13CA39, 2014–Ohio–4850, ¶ 9. “[I]n applying the abuse of discretion standard, we may not substitute our judgment for that of the trial court.” Id. {¶8} “Further, * * * the judgment of a trial court should not be overturned as being against the manifest weight of the evidence if some competent and credible evidence supports that judgment.” Hall at ¶ 20, citing Yannitell v. Oaks, 4th Dist. Washington No. 07CA63, 2008–Ohio–6371, ¶ 9. When an appellate court reviews a trial court's judgment, it must generally defer to the fact-finder's weight of the evidence and credibility determinations. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984). Scioto App. No. 18CA3858 4 B. Intent to Relocate {¶9} Harper argues that the trial court abused its discretion when it denied her request to relocate L.H. to Wyoming because it failed to recognize the significant benefits of the move and it improperly deprived her of a constitutional right to relocate for the best interest of her child. She argues that before the trial court could modify the shared parenting plan, “there must be an initial threshold showing of a change in circumstance” and the court must find that modification is in the child’s best interest. {¶10} In Harper’s notice of intent to relocate, she gave her intentions to move to Wyoming and asked the trial court to determine whether it was in the child’s best interest “to revise the parenting time schedule.” In response, Bentley opposed the relocation and filed a separate motion “to modify the allocation of parental rights and responsibilities” on the ground that Harper’s intent to relocate 1,300 miles away, in conjunction with her history of attempting to alienate L.H. from him, constituted a change in circumstance warranting a change designating him as the residential parent for school purposes and ordering a new parenting time schedule, or alternatively designating him the residential and custodial parent. {¶11} In Hall v. Hall, supra, we explained the difference between a modification of “a prior decree allocating parental rights and responsibilities” and a modification or termination of a “shared parenting plan.” Hall v. Hall, 4th Dist. Adams No. 16CA1030, 2017-Ohio-8968, ¶ 21-27. R.C. 3109.04(E)(1)(a) governs “a prior decree allocating parental rights and responsibilities” and does not allow a trial court to modify it unless a change has occurred in the circumstances and the modification is needed to serve the best interest of the child. “Thus, ‘before a modification can be made pursuant to R.C. Scioto App. No. 18CA3858 5 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ ” Id. at ¶ 22, quoting Gunderman v. Gunderman, 9th Dist. Medina No. 08CA0067, 2009–Ohio–3787, ¶ 9, citing Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589, 876 N.E.2d 546, syllabus. “If a change of circumstances is demonstrated, the trial court must then determine whether the modification is in the best interest of the child.” Gunderman at ¶ 9. {¶12} However, a trial court may modify the terms of a “shared parenting plan” if the court determines the modifications are in the child’s best interest. R.C. 3109.04(E)(2)(b). There is no requirement that a threshold determination of a change in circumstances be met. Hall at ¶ 24. Likewise, the provisions governing the court’s termination of a shared parenting plan do not require the court find a change in circumstances. R.C. 3109.04(E)(2)(c) allows a trial court to terminate a final shared parenting decree that includes a shared parenting plan whenever it determines that shared parenting is not in the best interest of the child. If a trial court terminates a final shared parenting decree, it must issue a “modified decree for the allocation of parental rights and responsibilities” as if no shared parenting plan had been granted. R.C. 3109.(E)(2)(d). See Kougher v. Kougher, 194 Ohio App.3d 703, 2011-Ohio-3411, 957 N.E.2d 835 (7th Dist.). {¶13} Thus, the trial court may modify or terminate a shared parenting plan if it determines that a modification or termination is in the best interest of the child. R.C. 3109.04(E)(2)(b) and (c). The court is not required to make a threshold determination of a change in circumstance. See Picciano v. Lowers, 4th Dist. Washington No. 08CA38, 2009-Ohio-3780 (order determining that it would be in child's best interest to modify the Scioto App. No. 18CA3858 6 parties' shared parenting plan to have the children live with the father during the school year if mother chose to relocate out of state was not an abuse of discretion). {¶14} For that reason, we need only determine whether the trial court abused its discretion in determining that relocating L.H. to Wyoming would not be in the child’s best interest. In determining the best interest of the child under a shared parenting plan, the trial court must consider all relevant factors, including but not limited to the factors enumerated in R.C. 3109.04(F)(1), the factors enumerated in R.C. 3119.23 (factors considered in a deviation in child support), and all of the factors listed in R.C. 3109.04(F)(2)(a) – (e). See R.C. 3109.04(F)(2). {¶15} A summary of the factors in R.C. 3109.04(F) include: (1) The wishes of the child's parents regarding the child's care; (2) The child’s wishes, if age appropriate; (3) 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; (4) The child's adjustment to the child's home, school, and community; (5) The mental and physical health of all persons involved in the situation; (6) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (7) Parental failure to make all child support payments; (8) Whether either parent or any member of the household of 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 a neglected child or been previously determined to be a perpetrator of abuse/neglect/sexually oriented offense; (9) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with a court order; Scioto App. No. 18CA3858 7 (10) Whether either parent has established a residence, or is planning to establish a residence, outside this state; (11) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (12) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; (13) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent; (14) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; (15) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. (16) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent's financial status or condition. {¶16} Here the trial court enumerated the factors it considered,1 the testimony it considered and the guardian ad litem’s report and recommendations. The trial court found Bentley’s testimony “to be very credible” and afforded it “great weight.” The trial court also found Bentley’s mother and Harper’s husband’s testimony “very credible” and gave it “considerable weight.” However, it found Harper’s testimony “to be less credible” and gave her testimony “less weight.” As discussed above, the weight given to a witness’s testimony is an issue for the trier of fact; we do not substitute our judgment concerning credibility of the witness for that of the trial court. {¶17} The trial court found that Harper hates Bentley, regrets having an extramarital affair with him, blames him for her “lot in life” and for the legal complications The trial court did not address R.C. 3119.23 factors, but Harper has not raised this as an error. R.C. 3119.23 addresses extraordinary disparities in expenses or income between the parents or special and unusual needs of the child. 1 Scioto App. No. 18CA3858 8 surrounding the parenting of their child. Harper does not want Bentley “in the picture whatsoever” and routinely writes derogatory notes about Bentley. Bentley has multiple family members in Scioto County, lots of potential family support if he needs it, and L.H. has a great and close relationship with them. The trial court found that Harper does not have a close relationship with her family, and neither Harper nor her husband have any family in Wyoming. A relocation to Cheyenne, Wyoming would “put nearly 1,300 miles between child and father” and L.H. is well adjusted to her home, school, and community. Harper testified that she would not relocate to Wyoming if the court does not permit her to relocate with L.H. The trial court found that both Bentley and Harper were involved, protective and loving parents, and while they cannot always communicate in a friendly manner, “they have successfully communicated with one another so as to effectively perform the terms and conditions of their Shared Parenting Plan.” {¶18} The trial court found that Harper’s request to relocate L.H. to Wyoming would not be in the child’s best interest; the parties have used the shared parenting plan for years and the child has adapted well; the shared parenting plan continues to serve L.H.’s best interest; and the shared parenting plan shall remain unchanged so as to continue to promote L.H.’s best interest. The trial court denied Harper’s request to relocate, denied Bentley’s request for a modification of parenting rights and responsibilities, and ordered the prior orders to remain in force. {¶19} Harper contends that “the record is devoid of material evidence” that L.H. was thriving or that her support system would have been unduly compromised by a move. She argues that a move would have benefited the child, but she cites to only two places in the record for support: (1) her own testimony that her husband moved to Wyoming to Scioto App. No. 18CA3858 9 take “his dream job and he makes a lot more money” and his new job is safer than his previous job in a prison and (2) the guardian ad litem’s statements concerning Bentley’s maturity level and his belief that Bentley should move out of his grandmother’s home and establish his own residence. Harper argues that despite the opportunities a move to Wyoming would bring and Bentley’s shortcomings, the trial court denied her request to move. {¶20} However, Harper testified that any concerns she had about Bentley’s maturity level were not serious. Despite her views of his maturity level, she had agreed to a shared parenting plan that allowed L.H. to spend three days a week every week of the year with Bentley. Harper’s own testimony was that L.H. was a happy and healthy five-year-old child who was outgoing, intelligent, creative, unique, on track in school and doing well in Ohio. Harper testified that since her mother died, Harper does not have a relationship with any of her family, except one sister, but that sister is not available to help Harper care for L.H. in an emergency situation. Harper testified that family is important to L.H., it is important for L.H. to have a relationship with extended family members, L.H. has a good relationship with her paternal grandmother, and it would not be in L.H.’s best interest to remove her weekly contact with Bentley’s extended family. Harper testified that it would be best for L.H. to have both her and Bentley involved in her life. The Harpers have two children from their marriage that are two and four years older than L.H. and L.H. has a good relationship with her half-siblings. {¶21} The guardian ad litem, Justin Blume, recommended that L.H. not relocate to Wyoming as it was in the child’s best interest to remain in Ohio. Blume stated that he believed the Harpers decision to move to Wyoming was designed to remove Bentley from Scioto App. No. 18CA3858 10 their lives and give the Harpers’ marriage a fresh start, and that the move is not good for the child. {¶22} Bentley testified that he lives with and takes care of his grandmother, who is blind as a result of cancer and is a diabetic who suffers from diabetic foot ulcers. If Bentley found his own house and moved out, his grandmother would have to go to a nursing home. Bentley testified that he cares for L.H. Friday through Monday every week. L.H. also spends time with his mother and several times a month they visit cousins. Bentley also described L.H. as an intelligent, caring, well-behaved child. Bentley testified that he provides stability to L.H. because he has no plans to move out of state or transfer her to a different school. He testified that he approves of her school, he attended the same school as a child, and L.H. has cousins her age that attend school with her. Bentley testified that he believes a move to Wyoming would damage L.H.’s relationship with him and limit his ability to participate in her life. Bentley testified that Harper has attempted to prevent him from attending L.H.’s medical appointments and he believes Harper wants her husband, Frankie Harper, to serve as L.H.’s father. A typical response Bentley gets when he communicates with Harper about L.H. is “Fuck you, stop messaging me.” {¶23} Bentley testified about communications from Harper in which she told him that he has ruined her life and her family, took away her husband, and she wished that he would disappear. Harper communicated to Bentley that L.H. is better off not knowing Bentley and she and her husband could have raised L.H. just fine without Bentley in the picture, but Bentley continues to ruin everyone’s life. Harper texted Bentley, “U ruined a whole family. Frankie would of been her father and done a hell of a better job than u.” In messages to Bentley, Harper called him a “horrible human being,” a “dumbass,” “fatass,” Scioto App. No. 18CA3858 11 and “fucking fat whale,” and told him, “I fucking hate everything there is about you. And the best way to take care of [L.H.] is for you to fucking die a horrible death. . [.] then maybe I can get my life back.” Bentley testified that he believes the reason Harper is seeking to relocate to Wyoming is to cut him out of the picture and he is worried that if Harper moves L.H. to Wyoming, she will speak poorly of him to L.H. {¶24} Wendy Pendry, the paternal grandmother, testified that L.H. spends time with her and their extended family weekly, enjoys spending time with her cousins who are about the same age as L.H., and has formed strong bonds with Bentley’s extended family. Pendry testified that she believes a move to Wyoming would “tear [L.H.] up” because she is close to all of the extended family members and a move would mean she would lose those people all at once. {¶25} Harper testified that she and her husband have had marital problems in the past and she moved out of the home. However, Harper denied that her husband had been physically or emotionally abusive to her or has had extramarital affairs himself. She claimed her marriage was now stable and that messages she sent to Bentley in which she stated that her husband had beaten her and that he had returned to a relationship with a former girlfriend were lies. {¶26} We find the trial court did not act unreasonably, unconscionably, or arbitrarily when it denied Harper’s request to relocate. The record contains some competent and credible evidence to support the court’s judgment. The trial court’s findings are supported by the guardian ad litem’s report and recommendations, the testimony of Bentley, Harper, Bentley’s mother, Pendry, and a number of exhibits containing communications between Harper and Bentley. Scioto App. No. 18CA3858 12 {¶27} We also reject Harper’s argument that the trial court’s decision violated her constitutional right to relocate for the best interest of the child. First, Harper is not the sole “residential parent” but rather the shared parenting plan designates her as “the residential parent of the parties’ minor child for school purposes.” Under R.C. 3109.04(L)(6) & (7), both Bentley and Harper are the “residential parent”: (6) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child. (7) Unless the context clearly requires otherwise and except as otherwise provided in the order, a designation in the order of a parent as the residential parent for the purpose of determining the school the child attends, * * * does not affect the designation pursuant to division (L)(6) of this section of each parent as the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child. {¶28} Harper cites Quint v. Lomakoski, 2d Dist. Greene No. 2005-CA-38, 2005Ohio-4603, for her contention that she has a constitutional right to live where she wants and relocate at will. Quint did not involve a shared parenting plan – the mother was the sole residential and custodial parent. The relevant statute in Quint was R.C. 3109.051(G)(1), which allows a residential and custodial parent to give notice of a relocation and provides for a hearing on whether it is in the best interest of the child to revise the nonresidential parent’s parenting time schedule. Id. at ¶ 20-22. Quint is not applicable here. Harper also cites Pennington v. Pennington, 2d Dist. Montgomery No. 19092, 2002 WL 1252173 (June 7, 2002), for the same constitutional right to travel. Again Pennington did not involve a shared parenting plan, it involved a move by the sole residential and custodial parent and is not applicable. Scioto App. No. 18CA3858 13 {¶29} Furthermore, even a residential parent has no constitutional right to relocate the child. Although a trial court cannot prohibit a relocation by the residential parent, the court may find the move is “a change in circumstance” that triggers a change in the residential designation of the parent if the court finds the move is not in the best interest of the child. See Brown v. Brown, 2d Dist. Champaign No. 2012-CA-40, 2013-Ohio-3456 (when the mother who was the residential and custodial parent gave notice of intent to relocate to South Carolina and the father opposed and sought to be designated the residential and custodial parent, the court found that the move was a change in circumstance, the move would not be in the children’s best interest, and ordered that if the mother moved, the father would be designated residential parent so the children could remain in Ohio). {¶30} Here Bentley and Harper are each the residential parent under a shared parenting plan, which includes a relocation provision that provides “Neither party shall relocate permanently with the minor children outside of Scioto or contiguous counties without the prior written agreement of the parties or a final court order permitting the same.” The trial court found that it was not in the child’s best interest to relocate L.H. to Wyoming. Harper’s constitutional rights were not infringed – she has no constitutional right to relocate the child. The trial court's decision deals only with the relocation of L.H. and does not prohibit Harper from traveling from state to state or relocating. Harper is merely prohibited from taking L.H. with her if she decides to relocate to Wyoming. Thus, the trial court's decision does not violate Harper’s right to travel. See Alvari v. Alvari, 4th Dist. Lawrence No. 99CA05, 2000 WL 133849, *4 (Feb. 2, 2000), citing Marsala v. Marsala, 8th Dist. Cuyahoga No. 67301, 1995 WL 396360 (July 6, 1995) Scioto App. No. 18CA3858 14 and Hunter v. Hunter, 12th Dist. Madison App. Nos. CA91-10-031 & CA91-11-034, 1992 WL 193688 (Aug. 10, 1992). IV. CONCLUSION {¶31} We find the trial court did not abuse its discretion when it denied Harper’s request to relocate L.H. to Wyoming. We overrule Harper’s assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. Scioto App. No. 18CA3858 15 JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Abele, J.: Concur in Judgment and Opinion. For the Court BY: ________________________________ Michael D. Hess, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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