Smith v. Smith, Unpublished Decision (5-18-2001)
Smith v. Smith, Unpublished Decision (5-18-2001)
Opinion of the Court
OPINION
This is an appeal from a decision of the Perry County, Court of Common Pleas, sustaining a motion of Appellee for a change of custody and designation as sole residential parent. The marriage of Sabrina A. Smith, appellee, and John B. Smith, resulted in two children, Courtnie, born 12/8/90, and Helen, born 8/13/93. The parties to this appeal were divorced on May 3, 1996. Along with the divorce, appellant and appellee entered into a shared parenting plan. Various motions followed due to the inability of the parties to mutually resolve difficulties under such plan. Appellant, on December 12, 1997, filed a motion to be designated as residential parent. On November 20, 1998, the parties entered into an agreed modification of the shared parenting plan whereby the children would reside with appellant with established visitation at their mother's (appellee) residence. The decision on the motion of Appellee from which this appeal is taken was set for an evidentiary hearing on 9/16/99. Due to a mechanical malfunction, the record of such testimony was not available. Memoranda as to such hearing was requested of counsel. Appellant's response was the timely filed version which the Court considered along with notes taken. A further hearing was held on March 1, 2000, after which the motion was sustained. The Court found that a sufficient change of circumstances and the best interests of the children warranted designation of Appellee as residential parent with the standard Perry County visitation order applicable to Appellant. Appellant raises five Assignments of Error as follows:I THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT A CHANGE OF CIRCUMSTANCES OCCURRED TO WARRANT THE REVIEW OF THE MERITS OF THE CUSTODY MOTION.
II THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE HARM CAUSED BY THE CHANGE OF CUSTODY IS LESSER THAN THE ADVANTAGES OF MAKING A CUSTODY CHANGE.
III THE DECISION OF THE COURT IS NOT SUPPORTED BY THE FACTS AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
IV THE TRIAL COURT ABUSED ITS DISCRETION IN ONLY GRANTING STANDARD VISITATION TO THE APPELLANT WITHOUT SUPPORTING EVIDENCE.
V THE TRIAL COURT ABUSED ITS DISCRETION IN CONSIDERING WHAT IT BELIEVED THE INTENTIONS OF THE PARTIES WERE IN RECONSIDERING CUSTODY UPON STABILITY OF THE MOTHER WHEN THE JOURNAL ENTRY IS SILENT ON SUCH AN ASSERTION.
The first, second, fourth and fifth Assignments of Error assert an abuse of discretion by the trial court while the third Assignment is that the decision is against the manifest weight of the evidence. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983),
As to the manifest weight assertion of Assignment of Error III, this Court, from the available record must disagree. The decision of the trial court is affirmed.
___________ Boggins, J.
Hoffman, P.J. and Wise, J.
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