[Cite as Musgrove v. Musgrove,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

: ROBYN MUSGROVE, N.K.A. OWEN Plaintiff-Appellant : C.A. CASE NO. 24640

vs. : T.C. CASE NO. 2006 DM 88

: (Civil Appeal from ROBERT M. MUSGROVE Common Pleas Court, Defendant-Appellee : Domestic Relations Division)

. . . . . . . . .

O P I N I O N

Rendered on the 2nd day of September, 2011.

. . . . . . . . .

Brian A. Sommers, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton, OH 45402-1505 Attorney for Plaintiff-Appellant

Robert M. Musgrove, 551 North Fairfield Road, Beavercreek, OH 45430 Defendant-Appellee, Pro Se

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Plaintiff, Robyn Musgrove, n.k.a. Owen, appeals from a

final order overruling her motion to reallocate parental rights

and responsibilities. 2

{¶ 2} Robyn1 and Robert Musgrove were married on November 14,

1992. They have two minor children, Carson and Noah, who were born

during the marriage. In 2006, the parties sought dissolution of

their marriage. On March 30, 2006, the court entered a Decree of

Dissolution, which incorporated a Separation Agreement entered

into between the parties, and a Final Decree of Shared Parenting.

{¶ 3} On August 28, 2007, Robert filed a motion to terminate the

shared parenting plan. Following hearings, the magistrate found

that there had been a change in circumstances in the children since

the parties’ shared parenting decree was filed in 2006. Further,

the magistrate found that the children’s best interest would be

served by terminating the shared parenting decree and designating

Robert as the residential parent and legal custodian of the child.

Robyn filed objections to the magistrate’s decision. On July 20,

2009, the trial court overruled the objections, terminated the

shared parenting plan, and designated Robert the residential

parent of the two minor children. (Dkt. 143.)

{¶ 4} On December 11, 2009, Robyn filed a motion to modify the

July 20, 2009 final order, arguing that it would be in the best

interest of the children for her to be the residential parent and

legal custodian of the children. Following hearings, the

1 For clarity and convenience, the parties are identified by their first names. 3

magistrate overruled Robyn’s motion. Robyn filed objections to

the magistrate’s decision, which were overruled by the trial court

on April 25, 2011. Robyn filed a timely notice of appeal.

{¶ 5} On July 12, 2011, Robyn filed a motion to strike Robert’s

appellate brief because it “is improperly cited to the degree that

it creates confusion and vagueness that makes it impossible to

read.” While we agree that Robert’s brief is somewhat confusing

and vague, we decline to strike his brief. Robyn’s motion to

strike is overruled.

FIRST ASSIGNMENT OF ERROR

{¶ 6} “THE TRIAL COURT ACTED UNREASONABLY, ARBITRARILY, AND

UNCONSCIONABLY WHEN IT IGNORED THE INSTABILITY OF THE APPELLEE AND

FOCUSED ON THE HOME SCHOOLING OF THE CHILDREN.”

{¶ 7} The standard of review we apply to a trial court’s decision

concerning child custody is an abuse of discretion. “‘Abuse of

discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

(1985),

. It is to be expected that most

instances of abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable

or arbitrary.

{¶ 8} “A decision is unreasonable if there is no sound reasoning

process that would support that decision. It is not enough that 4

the reviewing court, were it deciding the issue de novo, would not

have found that reasoning process to be persuasive, perhaps in view

of countervailing reasoning processes that would support a

contrary result.” AAAA Enterprises, Inc v. River Place Community

Redevelopment (1990),

.

{¶ 9} The standard for reallocating parental rights and

responsibilities is set forth in R.C. 3109.04(E)(1)(a), which

provides:

{¶ 10} “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, the child’s 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. In applying

these standards, the court shall retain the residential parent

designated by the prior decree or the prior shared parenting

decree, unless a modification is in the best interest of the child

and one of the following applies:

{¶ 11} “* * *

{¶ 12} “(iii) The harm likely to be caused by a change of

environment is outweighed by the advantages of the change of 5

environment to the child.”

{¶ 13} Therefore, in order for the trial court to grant Robyn’s

motion to reallocate parental rights and responsibilities, the

trial court would have to find that (1) there has been a change

in the circumstances of the children or Robert, (2) the

modification is necessary to serve the best interest of the

children, and (3) the harm likely to be caused by a change of

environment is outweighed by the advantages of the change of

environment to the children. R.C. 3109.04(E)(1)(a).

{¶ 14} The magistrate found that Robyn failed to satisfy the

tests that R.C. 3109.4(E)(1)(a) imposes. The magistrate wrote:

{¶ 15} “Since the court last awarded custody in July 2008 [sic],

there have been changes in the children’s circumstances. Some of

the changes have been very positive. They are no longer home

schooled. They are thriving in the Beavercreek school system and

have been intergraded [sic] into that community. Other changes

are not so positive. The respondent’s living arrangements have

fluctuated due to marital discord between respondent and his wife.

The parties themselves have terrible communication and this has

lead to a number of problems. Respondent is reluctant to

communicate with the movant about the children. This leads to a

failure to facilitate contact between the movant and the children.

Respondent appears to believe that since he has custody of the 6

children he can make unilateral decisions about them without ever

consulting the movant or the court. These decisions include

changing the drop-off and pick-up of the children and refusal to

keep the movant informed about the children’s school activities

and medical needs. Continued behavior such as this by the

respondent will likely result in future court actions. However,

at the current time the children are doing exceptionally well in

the school district that they are in. They are thriving in the

respondent’s custody. Should custody be changed to the movant,

they would need to change school districts. At this time, the harm

likely to be caused by a change in environment is not outweighed

by the advantages of the change of environment to the child. It

is, therefore recommended that the movant’s motion to reallocate

parental rights and responsibilities be overruled.” (Dkt. 235,

p. 6.)

{¶ 16} Robyn filed objections to the magistrate’s decision,

arguing that the magistrate failed to take into consideration and

give proper weight to the following facts: Robert’s “lack of

stability,” the children witnessing violence in Robert’s home,

Robert’s attempts to alienate the children against Robyn, Robert’s

failure to communicate with Robyn regarding medical appointments

and school activities, and the positive changes Robyn is willing

to make. The trial court overruled these objections and stated: 7

{¶ 17} “The testimony reflects that Robert and his current wife,

Carrie Campbell, were having marital difficulties during the

pendency of this action. As a result, they have had verbal

arguments and he has left the marital residence on a number of

occasions. The alleged ‘lack of stability’ was directly

attributable to the marital disputes between Robert and his spouse.

There is no record in this matter that the children witnessed

violence. There is no indication that either Robert or Carrie had

pursued a domestic violence against the other. The Court finds

that Robyn’s objection that the magistrate failed to take proper

consideration for Robert’s lack of stability and that the children

had witnessed violence in the home is without merit and is

overruled.

{¶ 18} “Robyn alleges that Robert had failed to advise her of

medical appointments and school activities. A thorough review of

the evidence reflects that Robert provided ample notices of both

medical appointments and school activities. The Court further

notes that there is no court order that would preclude Robyn from

having direct contact with the medical providers or school

officials regarding the children’s appointments and schedules.

The Court finds no evidence to support a change of custody based

on a failure to communicate the medical and school activities.

{¶ 19} “The Court finds no evidence to support the claim of 8

alienation.

{¶ 20} “Robyn argues that the magistrate failed to take into

consideration the positive changes that she was willing to

undertake in order to gain custody of the minor children. The

magistrate acknowledged the changes that Robyn was considering to

improve her parenting skills. Robyn acknowledged a willingness

to enroll the children in a public school system rather than home

school them as she had in the past. The record reflects that the

children are doing very well in the Beavercreek school system.

Robert has taken measures to ensure that Carson receives speech

therapy and that Noah is receiving tutoring in math. Both children

have expressed a desire to remain in the Beavercreek school

district and are thriving in that environment.

{¶ 21} “The Court finds that the magistrate properly considered

all the evidence and properly evaluated the factors contained in

R.C. 3109.04 to determine the change of circumstances to address

the change of custody issue. The Court evaluated the factors to

determine whether such a change would be in the best interest of

the minor children. The Court finds that a change of custody is

not in the best interest of the minor children at this time.” (Dkt.

250, p. 3-4.)

{¶ 22} Robyn argues that “the trial court did not cite to or even

mention” the factors in R.C. 3109.04(F)(1) and therefore erred in 9

adopting the magistrate’s decision. R.C. 3109.04(F)(1) concerns

the best interest of a child and provides:

{¶ 23} “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:

{¶ 24} “(a) The wishes of the child’s parents regarding the

child’s care;

{¶ 25} “(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;

{¶ 26} “(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;

{¶ 27} “(d) The child’s adjustment to the child’s home, school,

and community;

{¶ 28} “(e) The mental and physical health of all persons

involved in the situation;

{¶ 29} “(f) The parent more likely to honor and facilitate 10

court-approved parenting time rights or visitation and

companionship rights;

{¶ 30} “(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;

{¶ 31} “* * *

{¶ 32} “(i) 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 an order of the court;

{¶ 33} “(j) Whether either parent has established a residence,

or is planning to establish a residence, outside this state.”

{¶ 34} The magistrate considered the relevant factors set forth

in R.C. 3109.04(F)(1) in determining that a change in residential

parent was not necessary to serve the best interest of the children.

Further, the trial court addressed the relevant factors in R.C.

3109.04(F)(1) in reviewing the magistrate’s decision and

overruling Robyn’s objections. The trial court’s decision is

supported by the evidence of record that the children have

flourished in and out of school since Robert became the residential

parent. Further, the guardian ad litem’s report and the interview

of the minor children support the trial court’s decision to 11

overrule Robyn’s motion. Although there have been some negatives

in Robert’s household, the magistrate and trial court found that

these negatives did not outweigh the many positives that have

occurred since Robert became the residential parent. Upon this

record, we cannot find that the trial court abused its discretion

in finding that a modification of its prior order was not necessary

to serve the best interest of the children, and the first assignment

of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 35} “THE TRIAL COURT ACTED UNREASONABLY, ARBITRARILY, AND

UNCONSCIONABLY WHEN IT FOUND THAT THE POTENTIAL HARM OUTWEIGHED

THE ADVANTAGES OF A NEW ENVIRONMENT.”

{¶ 36} The findings that R.C. 3109.04(E)(1)(a) requires the

court to make are conjunctive; that is, all three must be found

in order for the court to modify its prior order. Our

determination of the first assignment of error renders moot the

error advanced in this assignment. Therefore, we need not decide

the error. App.R. 12(A)(1)(c).

{¶ 37} The assignments of error are overruled. The judgment of

the trial court will be affirmed.

FAIN, J. and DONOVAN, J. concur. 12

Copies mailed to:

Brian A. Sommers, Esq. Robert M. Musgrove Hon. Denise L. Cross