Orians v. Orians, Unpublished Decision (3-13-2006)
Orians v. Orians, Unpublished Decision (3-13-2006)
Opinion of the Court
{¶ 2} Kinshaw and Orians were married on December 8, 1984. During the course of the marriage, three children were born. On November 21, 2003, a petition for a dissolution was filed. Two of the three children were still minors at that time. Orians was granted residential parent status of Reece A. Orians, born May 21, 1988. Kinshaw was granted residential parent status of William L. Orians, born February 11, 1998.
{¶ 3} On March 9, 2005, Kinshaw filed a notice, pursuant to R.C.
The court abused its discretion in finding that a change incircumstances had occurred, as said finding in unreasonable inlight of the evidence presented.
The court abused its discretion by failing to make a findingthat the harm caused by a change in custody is outweighed by thebenefits resulting from said change as required by [R.C.
{¶ 4} R.C.
(E)(1)(a) The court shall not modify a prior decree allocatingparental rights and responsibilities for the care of childrenunless if finds, based on facts that have arisen since the priordecree or that were unknown to the court at the time of the priordecree, that a change has occurred in the circumstances of thechild, the child's residential parent, or either of the parentssubject to a shared parenting decree, and that the modificationis necessary to serve the best interest of the child. In applyingthese standards, the court shall retain the residential parentdesignated by the prior decree or the prior shared parentingdecree, unless a modification is in the best interest of thechild and one of the following applies:
* * *
(iii) The harm likely to be caused by a change of environmentis outweighed by the advantages of the change of environment tothe child.
R.C.
{¶ 5} In the first assignment of error, Kinshaw claims that the trial court erred in finding a change of circumstances has occurred. Specifically, the trial court found by adopting the magistrate's opinion that the following changes of circumstances had occurred.
The Respondent is wishing to relocate to the State of Floridafor reasons other than employment. The Respondent is gettingremarried to a gentleman who has a child of his own living withhim. The Respondent has changed the minor child's educationsituation in that since October of 2004 he is not permitted toparticipate in certain activities at school due to Respondent'sreligious beliefs. Respondent has allowed the minor child to callher fiancé "Dad". In addition the parents have become lesslikely to agree in that Respondent has refused parenting time atthe request of Movant and stated the minor child shall remainwith a caregiver rather than his Father. Further Respondent nolonger feels it is in the minor child William's best interest tospend time with his older brother Reece, as is stated in theJudgment Entry Decree of Dissolution Separation Agreement. Inthat document it specifically states the parents wishes were thatthe two minor boys spend every weekend together. Respondenttestified she no longer believes this. She further testified thatshe did not believe this at the time the Dissolution was granted,but in her words "it was negotiated". The Court can only look atthe documents as filed in the case, and not the allegednegotiations. The documents states the minor children shall spendevery weekend together and Respondent does not believe this to bein the child's best interest. Further Respondent testified shehas no employment in Florida, her fiancé is on worker'scompensation disability, and said disability payments will betheir only source of income. The minor child has three sets ofGrandparents, numerous Aunts, Uncles and Cousins in the WyandotCounty area. Respondent also testified that she is moving toFlorida and "they will be a family there". All of these combinedis a sufficient change in circumstance to allow the Court tofurther look at the best interest of the child and whether theharm in the change is outweighed by the advantages of the change.
{¶ 6} Magistrate's Decision, June 7, 2005, 2-3. A review of the record finds that these findings are supported by the record. These findings are changes in the circumstances of the life of the residential parent and/or the child that occurred after the prior decree as required by R.C.
{¶ 7} Next, Kinshaw alleges that the trial court erred by failing to make a finding that the harm caused by a change in custody is outweighed by the benefits resulting from the change as required by R.C.
{¶ 8} The judgment of the Court of Common Pleas of Wyandot County, Domestic Relations Division is reversed and the matter is remanded for further proceedings.
Judgment reversed and cause remanded. Rogers and Shaw, JJ., concur.
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