Respondent Tamara Lynn Hickey appeals a judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, which awarded the custody of her minor son, Quentin Paulik, to the child's natural father, Respondent-appellee, John Paulik. Appellant assigns four errors to the trial court:

ASSIGNMENTS OF ERROR FIRST ASSIGNMENT OF ERROR

THAT THE TRIAL COURT ERRED IN REACHING ITS DECISION AND JUDGMENT WITHOUT FIRST OBTAINING A FINAL REPORT AND RECOMMENDATION FROM THE GUARDIAN AD LITEM APPOINTED IN THIS CASE.

THAT THE DECISION OF THE TRIAL COURT WAS IN ERROR BECAUSE THE SAME WAS TAINTED AND FLAWED BY VIRTUE OF THE INITIAL ISSUANCE OF AN EX PARTE ORDER BASED UPON MATERIALLY INACCURATE INFORMATION, WHICH RESULTED IN A STATUS QUO OF TEMPORARY PLACEMENT IN JOHN PAULIK, WHICH MATERIALLY AND PREJUDICIALLY AFFECTED THE OUTCOME OF THIS CASE.

THE TRIAL COURT ERRED TO THE APPELLANT'S SUBSTANTIAL PREJUDICE BY ADMITTING INTO EVIDENCE AND GIVING CONSIDERATION AND WEIGHT TO SEVERAL MUNICIPAL COURT MISDEMEANOR CONVICTIONS ARISING FROM NO CONTEST PLEAS AND ALSO BY ADMITTING INTO EVIDENCE AND GIVING CONSIDERATION AND WEIGHT TO A NUMBER OF UNSUBSTANTIATED HEARSAY REPORTS.

father was granted an ex parte order of placement. Several weeks later, appellee John Paulik moved with Quentin from the child's original residence, leaving appellee grandmother in the home. In September of 1996, appellee Paulik picked up Quentin from the grandmother's residence following a visit, and was charged with DUI. Appellant arrived on the scene shortly thereafter, and was eventually charged with obstruction of official business. Appellee John Paulik was convicted of DUI and incarcerated for several months, during which time Quentin lived with his mother, the appellant.

The magistrate found appellant, appellee John Paulik, and appellee Delores Wietz's fiancee Ralph Harsh all have multiple DUI convictions. Appellant has been through outpatient drug treatment and continues to abuse alcoholic beverages. Between January 27, 1997 and April 9, 1997, police were called approximately 21 times, to appellant's home primarily by the neighbors for loud music. Appellant mother is in a relationship with a man whom both appellees believe is a negative influence on the minor child. The court found Quentin is a healthy ten year old who enjoys sports and maintains above average grades in school. His school attendance and deportment is excellent and he wishes to reside with both parents.

The magistrate found, citing In Re: Perales (1977), 52 Ohio St.2d 89, that both parents are suitable parents, and for this reason, appellee Delores Wietz may not receive custody of Quentin. The court cited R.C. 3109.04, and found based upon the factors cited in that statute, that it is in the best interest of Quentin for John Paulik to be the residential parent and legal custodian of Quentin. Both appellant and appellee Delores Wietz have companionship rights.

because appellant does not assert the magistrate's findings of fact are actually incorrect, this court is unable to find error here. Appellant's assertion is that incorrect information furnished by both appellees resulted in the securing of anex parte order which ultimately affected the outcome of the action. Appellant cannot demonstrate, and this court refuses to infer, that the ex parte order in favor of the father influenced the court's ultimate decision regarding the best interest of the child, particularly when the magistrate's findings correctly identify appellant as the primary caregiver.

The second assignment of error is overruled.

Again, appellant has not furnished either the trial court or this court with a transcript of the evidence, and Civ. R. 53 (E) prohibits a party from assigning as error on appeal the court's adoption of a finding of fact and conclusion of law unless the party has objected to the finding and conclusion under the Rule.

We find appellant has failed to preserve this error.

The third assignment of error is overruled.

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate visitation and companionship rights approved by the court;

(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 a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2929.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is a reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a share parenting decree has continuously and willfully denied the other parent his or her right to visitation in accordance with an order of the court;

(j) Whether either parent has established a residence, or in planning to establish a residence, outside this state.

(Emphasis added)

The Revised Code provides regardless of whether the court is making an original decree allocating parental rights and responsibilities or modifying a decree which allocated those rights and responsibilities, the court shall use the best interest of the child's standard, and consider the same factors.

I fully concur in the majority's analysis and disposition of appellant's first, second and third assignments of error. I write separately only because I believe the majority has failed to address the issue raised by appellant in her fourth assignment of error.

The majority properly notes the best interest test found in R.C. 33109.04(F), which test applies whether the case involves an original decree allocating parental rights and responsibilities, or a modification thereof. However, the majority ignores the preceding subsection upon which appellant bases her argument. R.C. 3109.04(E)(1)(a) provides, in pertinent part:

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 of 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.

(Emphasis added).

If, as appellant argues, the earlier paternity order was a prior decree allocating parental rights and responsibilities, the trial court must make a finding regarding both change of circumstances and best interests of the child. The trial court did not make a finding of change of circumstances in this case.

Because the evidence in the case sub judice established the child lived with both his parents most of his life, I agree with the trial court the initial parenting decree and support order in Case No. JU94436 was not a decree allocating parental rights and the trial court properly considered the Complaint for Custody as an initial custody determination.

-------------------------- JUDGE WILLIAM B. HOFFMAN

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed. Costs to appellant.

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Hon. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. Sheila G. Farmer, J., JUDGES.