[Cite as Q.A.-E v. S.G, 2023-Ohio-4318.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

Q.A-E., :

Plaintiff-Appellant, :

No. 112616

v. :

S.G., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 30, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case No. FA-18-112728

Appearances:

Q.A-E, pro se. 

ANITA LASTER MAYS, A.J.:

Plaintiff-appellant Q.A-E. (“Mother”) appeals the trial court’s decision 

granting legal and residential custody of minor child, D.G., to defendant-appellee 

S.G. (“Father”). We affirm the trial court’s decision.
I. Facts and Procedural History

On October 16, 2018, Father filed a motion for shared parenting. At the 

time, Mother was incarcerated at the Cuyahoga County Corrections Center. A letter 

was mailed to Mother, advising her of the trial date. Mother alleged she never 

received the letter. However, the trial court determined that proper service was 

completed and issued a default judgment granting full custody to Father after 

Mother failed to appear. 

According to Mother, over the next three years, she filed several 

motions against Father in order to regain residential and physical custody of D.G. 

On July 29, 2022, Mother filed a motion to modify custody; on August 3, 2022, she 

filed a motion to show cause; and on August 26, 2022, she filed another motion to 

show cause regarding mental health and therapy. On February 27 and 28, 2023, 

the trial court held an evidentiary hearing. According to the judgment entry, 

Mother’s witnesses testified that Father was good about visitation or extra visits 

with Mother and her family when Mother was incarcerated. 

The trial court also noted that Mother and her husband filed 

numerous unfounded and unsubstantiated complaints for civil protection orders 

against Father, complaints with children services, and complaints with the police 

department. However, Mother was indicted and incarcerated for burglary, 

violation of a protection order, domestic violence, criminal endangering, and 
felonious assault. In 2021, Mother served two weeks in jail after pleading guilty to 

interference of custody. 

According to the trial court’s judgment entry, the guardian ad litem 

(“GAL”) observed the parents fighting all the time and determined that they were 

not good role models. The GAL also found that D.G. is not at risk of imminent 

danger and recommended that Mother have unsupervised parenting time every 

weekend. The GAL also suggested that the parents attend counseling to improve 

their communications and stop fighting for the betterment of D.G.

The trial court found that Mother did not show a change of 

circumstances or best interest under R.C. 3109.04(E)(1)(a) and (F)(1). The trial 

court ordered that Father remain the residential and legal parent and Mother shall 

have weekly parenting time. The trial court also ordered Mother, Father, and their 

significant others to engage in counseling or therapy to learn how to communicate 

to support D.G. The trial court stated that Mother’s motion to modify custody and 

both motions to show cause were not proved and were denied.

Mother filed this appeal assigning one error for our review:

1. The trial court erred and abused its discretion in determining 

custody for the minor child.

II. Law and Analysis

In Mother’s appeal, she did not file a transcript. “Pursuant to 

App.R. 9(B), the appellant has a duty to file the transcript from any lower court 
proceedings to the extent it is necessary for evaluation of the judgment being 

appealed.” Farmer v. Healthcare Bridge, 8th Dist. Cuyahoga No. 110469, 

2021-Ohio-3207, ¶ 6. “This court has consistently held that ‘[f]ailure to file the 

transcript prevents an appellate court from reviewing an appellant’s assigned errors. 

* * * Thus, absent a transcript or alternative record under App.R. 9(C) or (D), we 

must presume regularity in the proceedings below.’” Id., quoting Lakewood v. 

Collins, 8th Dist. Cuyahoga No. 102953, 2015-Ohio-4389, ¶ 9. 

Mother raised two issues under her assignment of error regarding 

custody of D.G. First, Mother argued that the trial court failed to ensure that 

proper service was completed regarding the 2019 custody case. Mother was 

incarcerated and contends that she was not properly served or notified about the 

hearing that granted Father residential and legal custody of D.G.

The trial court found that service requirements were met. “‘Where 

the plaintiff follows the civil rules governing service of process, courts presume that 

service is proper unless the defendant rebuts this presumption with sufficient 

evidence of nonservice.’” Hathaway Brown School v. Cummings, 8th Dist. 

Cuyahoga No. 111566, 2023-Ohio-374, ¶ 11, quoting Midland Funding, L.L.C. v. 

Cherrier, 8th Dist. Cuyahoga No. 108595, 2020-Ohio-3280, ¶ 12. 

Under App.R. 3(A) and 4(A)(1), Mother was required to file a notice 

of appeal within 30 days of the entry of the trial court’s judgment. “The failure to 

timely file a notice of appeal deprives an appellate court of jurisdiction to entertain 
the appeal.’” Earth Mobile, Inc. v. U.S. Bank, N.A., 8th Dist. Cuyahoga No. 111851, 

2023-Ohio-3354, ¶ 13, quoting State v. Hamberg, 2015-Ohio-5074, 53 N.E.3d 918, 

¶ 8 (1st Dist.), citing State ex rel. Curran v. Brookes, 142 Ohio St. 107, 50 N.E.2d 

995 (1943), paragraph seven of the syllabus. Accordingly, because Mother did not 

file a timely notice of appeal, this court is without jurisdiction to consider any of 

the trial court’s rulings regarding the decision of the trial court in the 2019 custody 

case. See id.

Therefore, Mother’s first issue is dismissed.

Second, Mother argues that the trial court abused its discretion in 

determining the custody of D.G. “We review a trial court’s order regarding legal 

custody of a child under an abuse of discretion standard.” In re C.D.Y., 8th Dist. 

Cuyahoga No. 108355, 2019-Ohio-4987, ¶ 8, citing In re S.E., 8th Dist. Cuyahoga 

No. 96031, 2011-Ohio-2042, ¶ 13. An abuse of discretion occurs when a court 

exercises “its judgment, in an unwarranted way, in regard to a matter over which 

it has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-

Ohio-3304, 187 N.E.3d 463, ¶ 35.

“Legal custody and permanent custody are alternative disposition 

choices. Compare R.C. 2151.011(B)(21) with R.C. 2151.011(B)(31).” In re C.D.Y. at 

¶ 10. “‘Although there is no specific test or set of criteria set forth in the statutory 

scheme [regarding legal custody cases], courts agree that the trial court must base 
its decision on the best interest of the child.’” Id., quoting In re N.P., 9th Dist. 

Summit No. 21707, 2004-Ohio-110, ¶ 23.

“A party must demonstrate the existence of changed circumstances; 

that modification is in the child’s best interest; and that the advantages of granting 

the modification outweigh any harm likely to be caused by the change.” In re A.Z., 

8th Dist. Cuyahoga No. 108627, 2020-Ohio-2941, ¶ 32, citing In re S.R.L., 8th Dist. 

Cuyahoga No. 98754, 2013-Ohio-3236, ¶ 19, citing R.C. 3109.04(E)(1)(a).

“R.C. 3109.04 ‘“creates a strong presumption in favor of retaining the 

residential parent.”’” Id. at ¶ 34, quoting Sites v. Sites, 4th Dist. Lawrence 

No. 09CA19, 2010-Ohio-2748, ¶ 17, quoting Alessio v. Alessio, 10th Dist. Franklin 

No. 05AP-988, 2006-Ohio-2447, ¶ 11. “‘The statute prohibits a trial court from 

modifying a prior allocation of parental rights and responsibilities unless the court 

makes a threshold finding that a change in circumstances has occurred.’” Id.,

quoting id. “‘Without this threshold change in circumstances finding, a court need 

not proceed with an analysis of the child’s best interests under R.C. 3109.04(E)(1) 

or with any of the factors outlined in R.C. 3109.04(E)(1)(a).’” Id., quoting id., citing 

Cowan v. Cowan, 4th Dist. Washington No. 04CA5, 2004-Ohio-6119, ¶ 16.

Additionally, 

[a] change in circumstances generally means that an event, occurrence, 

or situation has arisen since the prior decree that has materially and 

adversely affected the child. However, this change in circumstances 

cannot be slight or inconsequential. Rather, it must be substantive and 

significant. The requirement for finding a substantive and significant 
change in circumstances is to “‘spare children from a constant tug of 

war between their parents who would file a motion for change of 

custody each time the parent out of custody thought he or she could 

provide the children a “better” environment. [R.C. 3109.04(E)] is an 

attempt to provide some stability to the custodial status of the children, 

even though the parent out of custody may be able to prove that he or 

she can provide a better environment.’” Davis [v. Flickinger], 77 Ohio 

St.3d [415,] 418, [674 N.e.2d 1159 (1997)], quoting Wyss v Wyss, 3 Ohio 

App.3d 412, 416, 445 N.E.2d 1153 (1982).

Id. at ¶ 35.

Mother argues that the trial court did not fully consider the best 

interest of D.G. Mother’s assertions are misplaced. The trial court stated that 

Mother has not shown a change of circumstances in accordance with 

R.C. 3109.04(E)(1)(a), which provides: 

(a) 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:

(i) The residential parent agrees to a change in the residential parent or 

both parents under a shared parenting decree agree to a change in the 

designation of residential parent.

(ii) The child, with the consent of the residential parent or of both 

parents under a shared parenting decree, has been integrated into the 

family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is 

outweighed by the advantages of the change of environment to the 

child.

Commented [EM1]: Per OSC writing manual quotes 

must be attributed.
As previously stated, a court does not need to proceed with an analysis 

of the child’s best interest if it finds there is no change in circumstances. However, 

the trial court continued and did consider the best interest of the child, although not 

required. The trial court stated in its judgment entry that any modification must 

serve the best interest of the child in accordance with R.C. 3109.04(F)(1), which 

provides:

(1) 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:

(a) The wishes of the child’s parents regarding the child’s care;

(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;

(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;

(d) The child’s adjustment to the child’s home, school, and 

community;

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

situation;

(f) The parent more likely to honor and facilitate courtapproved parenting time rights or visitation and 

companionship rights;

(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 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; 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 or any 

member of the household of either parent previously has been 

convicted of or pleaded guilty to a violation of section 2919.25 

of the Revised Code or a sexually oriented offense 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; whether either parent or any member of 

the household of either parent previously has been convicted of 

or pleaded guilty to any offense 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 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 shared parenting decree has continuously and willfully 

denied the other parent’s right to parenting time in accordance 

with an order of the court;

(j) Whether either parent has established a residence, or is 

planning to establish a residence, outside this state.

The trial court found that Father is employed and provides a home, 

education, medical treatment, and subsistence. The trial court also determined that 

Father’s home is stable and an appropriate structure. The trial court determined 

that Mother continuously filed unsubstantiated complaints against Father, and 

mother was previously incarcerated for numerous incidents. Given the facts of this 
case, we determine that Mother has not demonstrated that the trial court abused its 

discretion. Mother’s second issue lacks merit.

Therefore, Mother’s assignment of error is overruled. 

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure.

______________________________________

ANITA LASTER MAYS, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and 

SEAN C. GALLAGHER, J., CONCUR