[Cite as Sayre v. Furgeson, 2016-Ohio-3500.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

MARY ELIZABETH SAYRE, 

 CASE NO. 17-15-16 

 PLAINTIFF-APPELLANT, 

 v. 

THOMAS A. FURGESON, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Shelby County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 12FSO0001 

Judgment Affirmed 

Date of Decision: June 20, 2016 

 

APPEARANCES: 

James R. Kirkland for Appellant 

Roberta S. Fay for Appellee 

 
Case No. 17-15-16 

- 2 - 

WILLAMOWSKI, J. 

I. Introduction 

{¶1} Plaintiff-appellant, Mary Elizabeth Sayre (“Mary”), brings this appeal 

from the judgment of the Common Pleas Court of Shelby County, Ohio, which 

adopted the magistrate’s recommendations on the motion for change of custody 

filed by Defendant-appellee, Thomas Alan Furgeson (“Thomas”), and ordered that 

Thomas be named the residential parent and legal custodian of the parties’ minor 

child, C.F. For the reasons that follow, we affirm the trial court’s judgment. 

II. Factual and Procedural Background 

{¶2} The parties were married to each other in June 1997, in the state of 

Virginia. Two children were born to this marriage, C.F., a boy, and L.F., a girl. 

During the course of the marriage, the family moved to Albany County, 

Wyoming. On March 1, 2011, a Confidential Judgment Entry and Decree of 

Divorce was filed in the District Court, Second Judicial District, in and for Albany 

County, Wyoming, dissolving the parties’ marriage. The parties were awarded 

“joint legal custody” of the minor children, but Mary had the primary physical 

custody and control of the children, while Thomas had visitation rights. (R. at 1, 

Ex. A.) The divorce decree incorporated a document entitled, “Child Custody, 

Child Support and Property Settlement Agreement,” which was executed by the 

parties. (Id., Ex. A(1).) Among others, the document outlined the duties and 

responsibilities of the parties with respect to the child custody, visitation, and 
Case No. 17-15-16 

- 3 - 

support. The document restated that “the parties will share joint legal custody.” 

(Id.) On the same date, a Redacted Judgment and Decree of Divorce was filed, 

removing the children’s names from the order. Throughout this opinion we 

sometimes refer to both decrees jointly as “the Wyoming decree.” We will refer 

to the “Child Custody, Child Support and Property Settlement Agreement,” as “the 

Wyoming agreement.” 

{¶3} After the divorce became final, Thomas moved to the state of 

Washington, where he later remarried. Mary moved to Shelby County, Ohio. 

After their move out of the state of Wyoming, the parties entered a stipulation to 

modify the prior judgment and decree of divorce. (R. at 1, Ex. B.) Therefore, on 

March 9, 2012, the district court in Albany County, Wyoming, entered a 

“Confidential Stipulated Order Modifying Judgment and Decree of Divorce,” 

which stated that “[d]ue to the geographic distance between the parties, material 

changes of circumstance have occurred since entry of said Redacted/Confidential 

Judgment and Decree of Divorce which warrant modification of its visitation 

provisions in the best interest of the minor children of the parties.” (Emphasis 

sic.) (Id.) Although the order modified visitation rights of the parties, it left 

unchanged the portions of the prior order that awarded joint legal custody to the 

parties. 

{¶4} On April 9, 2012, Mary filed a “Petition for Registration of Foreign 

Judgment” in the Common Pleas Court of Shelby County, Ohio, requesting that 
Case No. 17-15-16 

- 4 - 

the prior orders of the district court from Albany County, Wyoming, be registered 

in Ohio. (R. at 1.) Mary specifically requested, however, that the matters of child 

support remain within the jurisdiction of the district court in Albany County, 

Wyoming. (R. at 16.) Thomas agreed to have the case transferred to Ohio, and 

the trial court entered a judgment registering the Wyoming decree of divorce, 

together with its modification, in the State of Ohio.1

 (R. at 18.) 

{¶5} Thomas maintained a relationship with his children after his move to 

Washington. As it relates to C.F., who is the subject of the dispute, Thomas talked 

to him on the phone several times per week; they exchanged emails, text 

messages, and communicated by Skype, FaceTime, and Instagram. C.F. spent 

some time with Thomas in Washington in the summer, during the holidays, and 

spring break. C.F. became involved in a creative theater camp, where he made a 

lot of friends. He became close with Thomas’s wife and her children, C.F.’s stepsiblings. At some point, C.F. started talking about wanting to live with his dad in 

Washington. Thomas was supportive of the idea but Mary objected to it. 

{¶6} On November 4, 2014, Thomas filed a “Motion to Terminate 

Parenting Plan; Motion to Modify Shared Plan; Motion for In Camera Interview,” 

in the Shelby County Court of Common Pleas. (R. at 23.) The pleading indicated 

that “the shared parenting plan is no longer in [C.F.’s] best interest”; C.F. “no 

 

1

 Although the document filed does not except the child support from the registration in Ohio, the parties 

agree that the district court in Albany County, Wyoming, retained jurisdiction over the child support issues. 

(App’t Br. at 2; App’ee Br. at 6.) We are not asked to review the child support issues or the trial court’s 

action registering the Wyoming decree in Ohio. Therefore, our comment herein has no effect on the 

resolution of the instant appeal. 
Case No. 17-15-16 

- 5 - 

longer wishes to reside with his Mother in Ohio”; and “it is in [C.F.’s] best interest 

to reside with Father.” (Id.) Therefore, Thomas requested that the trial court 

“modify the Shared Parenting Plan or in the alternative terminate[] the Shared 

Parenting Plan,” changing the residential status in the summer of 2015, to allow 

C.F. to start ninth grade in the state of Washington. (Id.) The motion made no 

requests with respect to the other minor child, L.F. 

{¶7} On February 23, 2015, Mary filed a “Motion Regarding Shared 

Parenting Plan and For Increase in Child Support.”2

 (R. at 63.) In this pleading, 

Mary opposed Thomas’s request to change C.F.’s residential arrangements and 

expressed her willingness “to continue the Shared Parenting Plan.” (Id.) In the 

alternative, Mary requested that “the Shared Parenting Plan be terminated” as not 

being in the children’s best interest. (Id.) Mary also filed a trial memorandum, in 

which she argued that a change in custody was not warranted due to a lack of 

change in circumstances. (R. at 83.) She further argued that a change in custody 

was not in the best interest of C.F. and that the harm that would result from the 

change outweighed the benefits of leaving in place the Wyoming decree. (Id.) 

Both parties filed additional pleadings in support of their respective positions. 

(See R. at 84, 86, 87, 90, 92.) 

 

2

 Since pursuant to Mary’s request, child support issues were retained by the State of Wyoming, they were 

not reviewed by the trial court. (See R. at 170, at 8.) Our discussion of these issues is limited to the 

necessary references herein. 
Case No. 17-15-16 

- 6 - 

{¶8} On March 6, 2015, the magistrate of the trial court conducted an incamera interviews with C.F. and L.F. Thereafter, on March 30, 2015, the parties 

appeared at a hearing and presented evidence on their positions with respect to the 

change in custody. On May 5, 2015, the magistrate issued his decision, with the 

findings of fact and conclusions of law, in which he recommended that the current 

parenting plan be terminated. (R. at 94.) The magistrate further recommended 

that Thomas be designated as the residential parent and legal custodian of C.F., 

while Mary be designated as the residential parent and legal custodian of L.F.3

 

(Id.) 

{¶9} Mary filed a “Request for Findings of Fact and Conclusions of Law,” 

and the magistrate filed an order denying the request on the basis that his decision 

“contain[ed] factual findings and conclusions of law.” (R. at 100, 102.) Mary 

moved to set aside this order, alleging that the findings in the magistrate’s May 5, 

2015 decision were not sufficiently explained or supported by law. (R. at 108.) 

The trial court denied the motion, concluding that the thirteen-page decision issued 

by the magistrate was sufficiently specific to satisfy the requirements of Civ.R. 

53(D)(3)(a)(ii) for findings of fact and conclusions of law. (R. at 114.) 

{¶10} On May 20, 2015, Mary filed her objections to the magistrate’s 

recommendations and requested permission to file supplemental objections upon 

 

3

 Upon concluding his recommendations as to the custody and visitation schedule, the magistrate added that 

“[i]f, after completing his freshman year in high school, [C.F.] decides that he is unhappy and wishes to 

return to Ohio, the parties should agree that [C.F.] may return, without the need for further litigation.” (Id.

at 13.) It does not appear that the trial court adopted this part of the magistrate’s recommendations. 
Case No. 17-15-16 

- 7 - 

the filing of the transcript. (R. at 107.) On August 13, 2015, the trial court issued 

an interim order by which it designated Thomas as the residential parent and legal 

custodian of C.F., and Mary as the residential parent and legal custodian of L.F. 

(R. at 121.) The order was to take effect immediately. Mary’s “objections” to this 

order, which the trial court treated as a motion for reconsideration, were denied. 

(See R. at 127, 132.) Mary filed supplemental objections to the magistrate’s 

recommendations on September 14, 2015. (R. at 159.) On October 7, 2015, the 

trial court overruled Mary’s objections to the magistrate’s recommendations and 

issued an order terminating the existing parenting plan, designating Thomas as the 

residential parent and legal custodian of C.F., and Mary as the residential parent 

and legal custodian of L.F. (R. at 170.) 

{¶11} Mary filed this timely appeal in which she raises five assignments of 

error, as quoted below. 

III. Assignments of Error 

1. Trial Court erred as a matter of law, abused its discretion and 

erred against the weight of the evidence by adopting the 

magistrate’s decision to terminate the existing Shared Parenting 

Plan, over the option of modification, and therefore terminating 

Plaintiff-Appellant, Mary Sayre’s existing residential care and 

allocated parental rights and responsibilities over the parties’ 

minor child, [C.F.]. 

2. Trial Court erred as a matter of law, abused its discretion and 

erred against the weight of the evidence by determining that there 

was a substantiated and sufficient change in circumstances 

pursuant to Ohio [R]evised [C]ode 3109.04(E)(1)(a) to modify 

the existing Shared Parenting Plan. 
Case No. 17-15-16 

- 8 - 

3. Trial Court erred as a matter of law, abused its discretion and 

erred against the weight of the evidence by determining 

Defendant-Appellee, Thomas Furgeson, as the residential parent 

of the parties’ minor child, [C.F.], was in the best interest of the 

child pursuant to 3109.04(F)(1) to modify the existing Shared 

Parenting Plan. 

4. Trial Court erred as a matter of law, abused its discretion and 

erred against the weight of the evidence by failing to determine, 

in addition to the third assignment of error, the requisite 

threshold in Ohio Revised Code Section 3109.04(E)(l)(a)(i)-(iii), 

to modify the existing Shared Parenting Plan. 

5. Trial Court erred as a matter of law, abused its discretion and 

erred against the weight of the evidence by adopting the 

magistrate’s decision refusing Plaintiff-Appellant, Mary Sayre’s 

request for findings and conclusion of law in accordance with 

civil rule 53D(3)(a)(ii). 

IV. Law and Analysis 

First Assignment of Error—Custody Modification Procedure 

{¶12} The first assignment of error concerns a dispute over the procedure 

that was used to modify the parties’ out-of-state custody determination. Because it 

is a question of law, we apply de novo standard of review. Warner v. Thomas, 3d 

Dist. Shelby No. 17-14-04, 2014-Ohio-3544, ¶ 8. But before we address the exact 

issue presented by Mary in her brief, we outline Ohio legal procedures used for 

modifications of parenting decrees, including parenting decrees that originate 

outside of Ohio. 

A. Ability to Change an Out-of-State Custody Determination 

{¶13} We start with recognizing that the trial court’s authority to change 

the decree of the district court from Albany County, Wyoming stems from the 
Case No. 17-15-16 

- 9 - 

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in 

Chapter 3127 of the Revised Code. R.C. 3127.17 states that a court of this state 

may “modify4

 a child custody determination made by a court of another state” 

only if two conditions are satisfied. The first condition requires that “the court of 

this state has jurisdiction to make an initial determination under division (A)(1) or 

(2) of section 3127.15 of the Revised Code.” R.C. 3127.17. The second condition 

is satisfied if one of the following applies: 

(A) The court of the other state determines that it no longer has 

exclusive, continuing jurisdiction under section 3127.16 of the 

Revised Code or a similar statute of the other state or that a court of 

this state would be a more convenient forum under section 3127.21 

of the Revised Code or a similar statute of the other state. 

(B) The court of this state or a court of the other state determines 

that the child, the child’s parents, and any person acting as a parent 

do not presently reside in the other state. 

Id. 

{¶14} Both conditions seem to have been satisfied in the instant case. C.F. 

and L.F. have lived in Ohio since August 2011. (See R. at 1; R. at 18.) Therefore, 

the Common Pleas Court of Shelby County, Ohio has jurisdiction to make an 

initial determination under division (A)(1) of R.C. 3127.15, which requires that 

Ohio “is the home state of the child on the date of the commencement of the 

proceeding.” Additionally, the Common Pleas Court of Shelby County 

 

4

 Within UCCJEA, “ ‘Modification’ means a child custody determination that changes, replaces, 

supersedes, or is otherwise made after a determination concerning the same child, whether or not it is made 

by the court that made the previous determination.” R.C. 3127.01(11). Therefore, we read the word 

“modify” herein to encompass any procedure that results in changes to an out-of-state custody 

determination, including a procedure terminating a prior parenting decree. 
Case No. 17-15-16 

- 10 - 

determined that neither the parties nor the children reside in Wyoming, thus 

satisfying R.C. 3127.17(B). (See R. at 18.) 

B. Use of R.C. 3109.04 for the Modification of the Wyoming Parenting Decree 

{¶15} When asking to modify or terminate the Wyoming decree, both 

parties relied on an Ohio statute for allocation of parental rights and 

responsibilities, R.C. 3109.04. The application of Ohio law to modify the custody 

determination seems to be consistent with the provisions of UCCJEA.5

 See R.C. 

3127.36(A) (providing for the use of “relief normally available under the law of 

this state to enforce a registered child custody determination made by a court of 

another state”); and R.C. 3127.36(B) (allowing for modification of a registered 

child custody determination of the court of another state “in accordance with 

sections 3127.15 to 3127.24 of the Revised Code”); see also R.C. 3127.51 (“In 

applying and construing sections 3127.01 to 3127.53 of the Revised Code, 

consideration shall be given to the need to promote uniformity of law with respect 

to its subject matter among states that enact a uniform child custody jurisdiction 

and enforcement act.”). 

{¶16} Although both parties agreed that R.C. 3109.04(E) should be used to 

resolve the case, they differed on which paragraph within that division controls. 

R.C. 3109.04(E) includes several methods for modifying prior arrangements that 

 

5

 While we note that the Wyoming agreement included a provision indicating that it should be construed 

under Wyoming law, we are not here construing or modifying the agreement but the entire custody decree. 

Furthermore, neither party demanded that Wyoming law be applied to the agreement. On the contrary, the 

parties chose to apply Ohio law to resolve the dispute. 
Case No. 17-15-16 

- 11 - 

allocate parental rights and responsibilities. The method of modification depends 

on the type of the parenting arrangement originally entered. We thus summarize 

these methods below. 

C. Standards for Custody Modification Proceedings in Ohio 

{¶17} To start with, R.C. 3109.04(E)(1)(a) provides a two-step procedure 

that is required for modification of any prior court-approved parenting decree, 

including a shared parenting decree. See Fisher v. Hasenjager, 116 Ohio St.3d 53, 

2007-Ohio-5589, 876 N.E.2d 546, ¶ 11. Under this standard, the court must first 

find 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.” 

Wooten v. Schwaderer, 3d Dist. Union No. 14-08-13, 2008-Ohio-3221, ¶ 3, 

quoting R.C. 3109.04(E)(1)(a). Second, the court must determine that “the 

modification is necessary to serve the best interest of the child.” Id. Under R.C. 

3109.04(E)(1)(a), the finding of a change of circumstances is a necessary 

prerequisite to the further inquiry of whether the modification would be in the best 

interest of the child. Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344, 

¶ 38. R.C. 3109.04(E)(1)(a) further prescribes that “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 subdivisions (i), (ii), or (iii) of R.C. 3109.04(E)(1)(a) applies. 
Case No. 17-15-16 

- 12 - 

{¶18} In contrast to the two-step procedure outlined above, different 

standards apply to modification of a shared parenting decree that includes a shared 

parenting plan. These standards are outlined in R.C. 3109.04(E)(2). See Kougher 

v. Kougher, 7th Dist. No. 10 MA 54, 194 Ohio App.3d 703, 2011-Ohio-3411, 957 

N.E.2d 835, ¶ 11 (“Although the language of R.C. 3109.04(E)(1)(a) appears, at 

first glance, to cover all situations dealing with any change to a shared parenting 

decree, the next section of the statute clearly provides an alternative review * * * 

.”); id. at ¶ 15 (“The wording of the statute leads to the inescapable conclusion that 

R.C. 3109.04(E)(2) and its subsections provide different procedures from those set 

forth in R.C. 3109.04(E)(1) and its subsections.”). These standards also 

distinguish between a shared parenting plan and a decree because, 

Within the custody statute, a “plan” is statutorily different from a 

“decree” or an “order.” A shared-parenting order is issued by a court 

when it allocates the parental rights and responsibilities for a child. 

R.C. 3109.04(A)(2). Similarly, a shared-parenting decree grants the 

parents shared parenting of a child. R.C. 3109.04(D)(1)(d). An order 

or decree is used by a court to grant parental rights and 

responsibilities to a parent or parents and to designate the parent or 

parents as residential parent and legal custodian. 

However, a plan includes provisions relevant to the care of a child, 

such as the child’s living arrangements, medical care, and school 

placement. R.C. 3109.04(G). A plan details the implementation of 

the court’s shared-parenting order. For example, a shared-parenting 

plan must list the holidays on which each parent is responsible for 

the child and include the amount a parent owes for child support. 

Fisher at ¶ 29-30. 
Case No. 17-15-16 

- 13 - 

{¶19} Under R.C. 3109.04(E)(2)(a) and (b), both parents may jointly 

modify the terms of a shared parenting plan, or the trial court may modify the 

terms of the plan. This action contemplates a continuance of the shared parenting 

decree, with changes to the terms of the shared parenting plan only. See Fisher at 

¶ 27, 29. But the designation of residential parent and legal custodian is not a term

of a shared parenting plan and thus, the designation of residential parent and legal 

custodian cannot be modified under the standards outlined in R.C. 

3109.04(E)(2)(a) and (b). Fisher at ¶ 27, 31. 

{¶20} Another action that changes a prior shared parenting arrangement is 

termination of the entire shared parenting decree under R.C. 3109.04(E)(2)(c). 

Here, depending on whether the original shared parenting plan was agreed upon 

by both parents or by one parent only, termination could occur upon request of one 

or both of the parents, or upon the trial court’s determination that shared parenting 

is not in the best interest of the child. R.C. 3109.04(E)(2)(c); Drees v. Drees, 3d 

Dist. Mercer No. 10-13-04, 2013-Ohio-5197, ¶ 11-12. 

{¶21} In summary, the statute directs that the two-step standard of R.C. 

3109.04(E)(1)(a) must be used in all situations except: (1) modifying a term of a 

shared parenting plan or (2) terminating a shared parenting decree that includes a 

shared parenting plan.6

 Of interest, modifying “the designation of residential 

 

6

 Although under the statutory language the trial court does not need to find a change in circumstances in 

order to terminate a shared parenting decree, we have noted that R.C. 3104.04(E)(2)(c) “impliedly 

contemplates that some significant change of circumstances has occurred for the shared parenting that was 

in the child’s best interest when implemented to be no longer in this child’s best interest.” Drees at ¶ 13, 
Case No. 17-15-16 

- 14 - 

parent and legal custodian of a child” in a shared parenting decree, without 

terminating the entire decree, requires the two-step procedure of R.C. 

3109.04(E)(1)(a), because the designation of residential parent and legal custodian 

is not a term of a shared parenting plan. Fisher, 116 Ohio St.3d 53, 2007-Ohio5589, 876 N.E.2d 546, at syllabus; see also R.C. 3109.04(K) and (L)(6) (providing 

that shared parenting could be specified in manners other than designating each 

parent the residential parent and legal custodian of the child). 

{¶22} Because of the difference in standards applicable to shared parenting 

decrees as opposed to other parenting decrees, it is important to determine whether 

the Wyoming decree is a shared parenting decree that includes a shared parenting 

plan as contemplated by R.C. 3109.04(E)(2). 

D. The Wyoming Parenting Decree under Ohio Law

{¶23} The Wyoming decree awarded Thomas and Mary joint legal 

custody.7

 We have previously recognized that under Ohio law the concept of 

shared parenting “refers to an agreement between parents concerning the care and 

custody of their children and was previously called ‘joint custody.’ ” Adams v. 

Sirmans, 3d Dist. Hancock No. 5-08-02, 2008-Ohio-5400, ¶ 6, quoting In re 

Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 17; see also 

Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 29 (holding that 

 

citing R.C. 3109.04(A)(2) and R.C. 3109.04(D) (requiring the court to determine that shared parenting is in 

the best interest of the children prior to approving the shared parenting plan and issuing a shared parenting 

order). 

7

 Our review of Wyoming Statutes indicates that they “do not define ‘joint custody’ ” and in fact, “such 

arrangements are not favored.” Testerman v. Testerman, 2008 WY 112, 193 P.3d 1141, ¶ 14-15 (Wyo.). 
Case No. 17-15-16 

- 15 - 

“a shared-parenting decree grants the parents shared parenting of a child”). Based 

on this definition and on the Ohio Supreme Court’s reasoning in Bonfield at ¶ 17, 

it would appear that the Wyoming decree granting Thomas and Mary joint custody 

over their children is analogous to an Ohio shared parenting decree. 

{¶24} Similarly, it would be proper to recognize the Wyoming agreement 

as akin to a shared parenting plan in Ohio.8

 The Ohio Supreme Court recognized 

the characteristics of a shared parenting plan as follows: 

a plan includes provisions relevant to the care of a child, such as the 

child’s living arrangements, medical care, and school placement. 

R.C. 3109.04(G). A plan details the implementation of the court’s 

shared-parenting order. For example, a shared-parenting plan must 

list the holidays on which each parent is responsible for the child and 

include the amount a parent owes for child support. 

Fisher at ¶ 30; see also R.C. 3109.04(G) (listing the provisions that shall be 

covered by a shared parenting plan). The Wyoming agreement includes 

provisions for visitation, medical support, child support, and residential 

arrangements. While school placement is not expressly mentioned in the 

Wyoming agreement and child support is not within the jurisdiction of Ohio, we 

see no reason to find these deficiencies controlling, where both parties, as well as 

the trial court, treated it like a shared parenting plan. To the extent that either 

party feels prejudiced by this conclusion, we note that on appeal both parties 

 

8

 It appears that Wyoming Statutes do not mention a parenting plan. Testerman at ¶ 11 (recognizing that 

“there is no mention of a ‘parenting plan’ or ‘parenting time’ ” in the Wyoming Statutes and that the 

Wyoming district court’s use of such terms in a Wyoming case was based on Arizona law). 
Case No. 17-15-16 

- 16 - 

continue to assert their positions under the assumption that the Wyoming 

agreement was a shared parenting plan. 

{¶25} Therefore, we hold that under the specific facts at issue, the 

Wyoming parenting decree should be treated like a shared parenting decree that 

includes a shared parenting plan for the purpose of resolving this case. 

E. The Trial Court’s Choice of Procedure to Terminate the Wyoming Shared 

Parenting Decree 

{¶26} Mary asserts that the trial court erred when it applied R.C. 

3109.04(E)(2)(c) instead of R.C. 3109.04(E)(1)(a) to this case. Although she does 

not dispute that the Wyoming decree was a shared parenting decree, she suggests 

that the instant case required review under the standard for modification rather 

than termination of a shared parenting decree. Mary relies on our prior 

recognition that in some situations, “a trial court’s action ‘terminating’ a shared 

parenting plan that effectively results in ‘a modification of the designation of 

residential parent and legal custodian of a child’ may require a two-step analysis.” 

Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 14, quoting Fisher,

116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, at ¶ 37. 

{¶27} In Drees, we distinguished the Fisher reclassification of the trial 

court’s action and pointed out the specific circumstances that caused that unique 

situation. We noted that in Fisher, the parties did not move to terminate the 

shared parenting plan, but only to change the designation of residential parent and 

legal custodian. Id.; see Fisher v. Hasenjager, 3d Dist. No. 10-05-14, 168 Ohio 
Case No. 17-15-16 

- 17 - 

App.3d 321, 2006-Ohio-4190, 859 N.E.2d 1022, ¶ 24 (recognizing that both 

parents “actually moved to be designated the sole residential parent and legal 

custodian of Demetra, not to terminate the shared-parenting plan”). The trial court 

attempted to modify the shared parenting by changing the designation of the 

residential parent and legal custodian of the child, but leaving “all other orders not 

in conflict with the [modifications it made] in full force and effect.” Drees at ¶ 

14, fn. 4. We recognized that this action did not fit within a termination provision 

of R.C. 3109.04(E)(2)(c), because termination requires that the trial court issue a 

new decree “ ‘as if no decree for shared parenting had been granted and as if no 

request for shared parenting ever had been made .’ ” Id. at ¶ 14, quoting R.C. 

3109.04(E)(2)(d). Therefore, the trial court’s action in Fisher had to be 

reclassified as an attempt to modify the shared parenting decree and was reviewed 

under R.C. 3109.04(E)(1)(a). Id. 

{¶28} Like Drees, this case is distinguishable from Fisher. The trial court 

herein did terminate the entire shared parenting decree9

 and did not preserve any 

 

9

 While the trial court’s order states that it is terminating the shared parenting plan, a review of the entire 

document makes it apparent that the order effectively terminated the parenting decree. (Compare R. at 

170, at 8, ¶ 1 (“The existing shared parenting plan is terminated.”), with id. at 8 (“this court finds that the 

previous shared parenting order/plan should be terminated”). As explained in Part (C) above, a “plan” is 

statutorily different from a “decree.” Fisher at ¶ 29. Therefore, the trial court’s order should state that the 

decree is terminated. There is no division in R.C. 3109.04(E) that provides for termination of a shared 

parenting plan without terminating the shared parenting decree. Although we feel the need to clarify the 

use of proper statutory terminology, we recognize that it has no practical effect on the action taken by the 

trial court, which was termination of the entire parenting decree. 
Case No. 17-15-16 

- 18 - 

part of the prior Wyoming agreement.10 The trial court made a new designation 

for residential parent and legal custodian for each of the children and issued a new 

visitation schedule. Despite the fact that Thomas asked for alternative remedies: 

either termination or modification, there is no confusion as to what action the trial 

court took. Therefore, the trial court did not err in reviewing the case under the 

provision for termination of shared parenting in R.C. 3109.04(E)(2)(c). 

{¶29} With this conclusion, we overrule the first assignment of error. 

Second and Fourth Assignments of Error—Alleged Errors in Applying R.C. 

3109.04(E)(1)(a)

{¶30} In the second and fourth assignments of error, Mary alleges that the 

statutory factors for modification under R.C. 3109.04(E)(1)(a) were not satisfied. 

But as we determined above, R.C. 3109.04(E)(1)(a) was not applicable to this 

case, because the trial court terminated the decree under the standard of R.C. 

3109.04(E)(2)(c). Therefore, it was not necessary to find the factors of R.C. 

3109.04(E)(1)(a) satisfied in order to resolve the case. For this reason, the second 

and fourth assignments of error lack merit and are overruled. 

Third Assignment of Error—Termination of Shared Parenting and the New 

Parenting Decree 

{¶31} In this assignment of error Mary challenges the trial court’s decision 

to change the prior parenting arrangement. She claims that the shared parenting 

 

10 The child support issues have been retained by the State of Wyoming and were not even reviewed by the 

trial court. This does not mean, however, that any part of the Wyoming decree has been preserved by the 

trial court. 
Case No. 17-15-16 

- 19 - 

decree should have remained in place and contests the trial court’s decision to 

designate Thomas as the residential parent and legal custodian of C.F. 

A. The Trial Court’s Decision to Terminate Shared Parenting 

{¶32} As explained in our summary of standards in the first assignment of 

error, R.C. 3109.04(E)(2)(c) allows the trial court to terminate a shared parenting 

decree, and the procedure depends upon the method in which the original shared 

parenting plan was approved. In particular, this division states that 

- if the original shared parenting plan was filed jointly by both parents and 

approved under R.C. 3109.04(D)(1)(a)(i), then the trial court can terminate 

the prior final shared parenting decree that includes such a plan “upon the 

request of one or both of the parents or whenever it determines that shared 

parenting is not in the best interest of the children”; 

- if the original shared parenting plan was filed by one parent, or if each 

parent filed a separate plan and the trial court approved the plan under R.C. 

3109.04(D)(1)(a)(ii) or (iii), then the trial court can terminate the plan only 

if it determines “that shared parenting is not in the best interest of the 

children.” R.C. 3109.04(E)(2)(c). 

{¶33} As can be seen, the statutory language of R.C. 3109.04(E)(2)(c) 

places a lot of weight on whether the original shared parenting plan was agreed 
Case No. 17-15-16 

- 20 - 

upon by both parents or by one parent only.11 If both parties agreed upon the 

shared parenting plan, a mere request by one or both of the parents is a sufficient 

basis for the trial court’s termination of a prior final shared parenting decree, even 

without the finding that shared parenting is not in the child’s best interest. See id.; 

Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 11, fn. 2; see also 

Fisher, 2007-Ohio-5589, ¶ 38, 56, 116 Ohio St.3d 53, 876 N.E.2d 546 (Pfeifer, J ., 

dissenting) (“That statute allows a court to terminate a final shared-parenting 

decree merely upon the request of one or both of the parents * * * such a request is 

sufficient for termination under R.C. 3109.04(E)(2)(c).”); In re J.L.F., 8th Dist. 

Cuyahoga No. 97405, 2012-Ohio-1748, ¶ 4 (“R.C.3109.04(E)(2)(c) * * * allows a 

court to terminate a final shared-parenting decree merely upon the request of one 

or both of the parents.”); Tomaszewski v. Tomaszewski, 8th Dist. Cuyahoga No. 

86976, 2006-Ohio-3357, ¶ 10 (“Pursuant to R.C. 3109.04(E)(2)(c), a domestic 

relations court may terminate a shared parenting order either upon the motion of 

either parent or simply whenever the court determines that shared parenting is no 

longer in the best interest of the children.”). 

{¶34} Here, both parents agreed to the original shared parenting plan. 

Therefore, under the statutory language, the trial court could terminate the shared 

 

11 While the language also talks about the plan being approved under the specified subdivision of R.C. 

3109.04(D)(1)(a), we are mindful of the fact that the Wyoming parenting plan did not get approved under 

any provision of the Ohio Statute. We are also mindful of the fact that the parties chose to litigate this case 

under the statutory provisions that are applicable to a shared parenting decree with a shared parenting plan, 

and of the mandate to promote uniformity of laws included in R.C. 3127.51. Therefore, we treat the 

Wyoming agreement between the parties as equivalent to a shared parenting plan approved under one of 

the subdivisions of R.C. 3109.04(D)(1)(a). 
Case No. 17-15-16 

- 21 - 

parenting decree “upon the request of one or both of the parents,” without any 

additional findings. R.C. 3109.04(E)(2)(c). One of the parents, Thomas, 

requested termination of the decree, and the trial court could thus terminate the 

decree upon his request alone. Nothing more was needed under the language of 

R.C. 3109.04(E)(2)(c). Therefore, the trial court did not err in terminating the 

shared parenting decree upon Thomas’s request in this case. 

B. Designating Thomas as the Residential Parent and Legal Custodian of C.F. 

{¶35} Having decided that termination of the Wyoming parenting decree 

was proper, we evaluate the action that the trial court took upon termination, 

which resulted in designating Thomas as the residential parent and legal custodian 

of C.F. The statute directs that “[a]fter termination, the court issues a modified 

decree allocating parental rights ‘as if no decree for shared parenting had been 

granted and as if no request for shared parenting ever had been made.’ ” Drees, 3d 

Dist. Mercer No. 10-13-04, 2013-Ohio-5197, at ¶ 12, quoting Curtis v. Curtis, 2d 

Dist. Montgomery No. 25211, 2012-Ohio-4855, ¶ 7, and R.C. 3109.04(E)(2)(d). 

In issuing this “modified decree,” the trial court is required to consider “the 

standards applicable under divisions (A), (B), and (C) of this section.” R.C. 

3109.04(E)(2)(d). These divisions direct the trial court to make decisions that are 

in the best interest of the child. 

{¶36} The factors that the trial court must consider when determining the 

best interest of the child are: 
Case No. 17-15-16 

- 22 - 

(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 court-approved 

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 
Case No. 17-15-16 

- 23 - 

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. 

R.C. 3109.04(F)(1). Any other “relevant factors” shall be considered as well. Id.; 

Drees at ¶ 19. 

{¶37} In this case, the trial court reviewed each of the factors of R.C. 

3109.04(F)(1) and found that almost all of them were “equally balanced.” (R. at 

170, at 8.) It then focused on the wishes of C.F. (factor (b)), finding that “the child 

is mature for his age and has expressed good, valid, and sufficient reasons to be 

placed with his father.” (Id.) This single factor was determinative of the outcome 

of the case. Mary agrees that many factors were equally balanced, but she 

specifically points to factors (c), (d), and (j), asserting that they should have 

weighed against designating Thomas as the residential parent and legal custodian 

of C.F. She also claims that the trial court put too much weight on C.F.’s wishes. 

{¶38} The trial court’s determination of what is in the best interest of the 

child will not be reversed absent an abuse of discretion. Lowery v. Ridgeway, 3d 

Dist. Hancock No. 5-15-20, 2015-Ohio-5051, ¶ 36. This standard requires that the 
Case No. 17-15-16 

- 24 - 

trial court’s reasoning not be disturbed unless it was “unreasonable, arbitrary or 

unconscionable,” because the trial judge is best equipped to determine and weigh 

the credibility of the proffered testimony. Davis v. Flickinger, 77 Ohio St. 3d 415, 

416, 418, 674 N.E.2d 1159 (1997); Blakemore v. Blakemore, 5 Ohio St. 3d 217, 

219, 450 N.E.2d 1140 (1983). Therefore, under the abuse of discretion standard, 

we cannot reverse the trial court simply because we may hold a different opinion 

as to the determination of the issues. Huffman v. Hair Surgeon, Inc., 19 Ohio 

St.3d 83, 87, 482 N.E.2d 1248 (1985); Conway v. Dravenstott, 3d Dist. Crawford 

No. 3-07-05, 2007-Ohio-4933, ¶ 12; In re Sullivan, 11th Dist. No. 2005-G-2641, 

167 Ohio App.3d 458, 462, 2006-Ohio-3206, 855 N.E.2d 554, 557, ¶ 12 (“An 

abuse of discretion connotes more than a difference in opinion in the application 

of the law to the facts.”). 

{¶39} With this standard in mind we review the trial court’s analysis of the 

factors challenged by Mary. 

Factor (c)—Interaction with Parents, Siblings, and Others

{¶40} When evaluating factor (c), the trial court found that 

[C.F.] has family and friends in Ohio and would have family, stepfamily, and friends in Washington. The evidence indicates that 

[C.F.] has good relations with his stepmother and stepsiblings in 

Washington. Although there is an older child of the stepmother who 

has had criminal and drug issues, according to the evidence that 

person resides outside the home and a significant distance away and 

is not part of the regular family involvement. 
Case No. 17-15-16 

- 25 - 

(R. at 170, at 6-7.) Mary points out that C.F. has a close relationship with his 

sister and his move to Washington would separate the siblings. She further asserts 

that the fact that Thomas had left his family and moved to the state of Washington 

after their divorce, should be used in the best interest analysis. 

{¶41} Mary cites Erwin v. Erwin, 3d Dist. Union No. 14-05-45, 2006-Ohio2661, in support of her position that these factors should have weighed against 

granting Thomas’s request. In Erwin, the trial court denied mother’s request for 

shared parenting. In reviewing the evidence, we noted that mother and father 

disagreed on the way to discipline the children; mother left the children with father 

when she went to live with her boyfriend whom she had only known for one night; 

mother introduced the children to her boyfriend the same week that she moved in 

with him; and father did not have mother’s address for six months after she had 

left. Id. at ¶ 27. Under the abuse of discretion review, we afforded deference to 

the trial court’s decision, which denied the mother’s request for shared parenting 

of the children under the totality of the circumstances analysis. Id. at ¶ 16-29. We 

noted that mother’s “abrupt abandonment of the children had an adverse effect on 

the children’s best interest.” Id. at ¶ 27. 

{¶42} Similarly, in this case we must afford deference to the trial court’s 

analysis of the facts of this case, which are distinguishable from Erwin. Here, 

there was no evidence of Thomas abruptly abandoning the children. Thomas did 

not move to the state of Washington until after the parties’ divorce became final, 
Case No. 17-15-16 

- 26 - 

and he continued his relationship with the children after that time. (Tr. of 

Proceedings, March 30, 2015, at 111.) Unlike in Erwin, there was no evidence 

here that Thomas’s move to Washington had an adverse effect on C.F.’s best 

interest. Instead, the evidence showed that C.F. enjoyed the new opportunities to 

which he was exposed in the state of Washington. 

{¶43} The record further shows that the trial court did not ignore C.F.’s 

relationship with his sister, recognizing that C.F. had “family and friends in Ohio 

and would have family, step-family, and friends in Washington.” (R. at 170, at 6.) 

The magistrate of the trial court reasoned that although he “does not generally like 

to ‘split up’ children,” there were many advantages to C.F. moving to Washington, 

including being able to live “with a positive male role model.” (R. at 94, at 11.) 

Based on the foregoing, we find no abuse of discretion in the trial court’s analysis 

of this factor. 

Factor (d)— Adjustment to the Home, School, and Community 

{¶44} The trial court recognized that C.F. was “well adjusted to his current 

home, school and community in Ohio,” but it also recognized “that when living in 

Washington during the summer he has established friends and relationships.” (R. 

at 170, at 7.) The trial court was conscious of the fact that “there will certainly be 

an adjustment necessary for him moving into a new school,” but it found C.F. to 

be “well situated to handle that.” (Id.) Mary does not dispute these findings, but 

she asks us to give more weight to the positive influence of the Ohio activities 
Case No. 17-15-16 

- 27 - 

upon C.F. In our review under the abuse of discretion standard, we cannot do that. 

See Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus 

(holding that “[w]here an award of custody is supported by a substantial amount of 

credible and competent evidence, such an award will not be reversed as being 

against the weight of the evidence by a reviewing court). 

Factor (j)—Move Out-of-State 

{¶45} As it pertains to factor (j), the trial court correctly noted that both 

parents moved from Wyoming, where the original parenting decree was entered. 

The trial court placed no significance on that factor. (R. at 170, at 16.) Mary 

claims that because Thomas moved first, it is against the best interest of C.F. to 

allow him to live with Thomas. This argument is repetitive of the claim made 

above, which we analyzed under factor (c). There is no evidence that the trial 

court abused its discretion in analyzing this factor. 

Factor (b)—C.F.’s Wishes 

{¶46} Lastly, with factor (b), Mary correctly points out that the child’s 

wishes should be considered as one of many factors in the best interest 

determination. See In Matter of Reid, 3d Dist. Paulding No. 11-98-3, 1998 WL 

409115, *2 (July 10, 1998) (“children’s wishes are not controlling upon the court, 

but are only one among several factors a court considers when determining what is 

in the children’s best interests”); Burks v. Burks, 3d Dist. Wyandot No. 16-96-2, 

1996 WL 518111, *2 (Sept. 12, 1996) (“the interview of the children is not 
Case No. 17-15-16 

- 28 - 

conclusive but is only one of the several relevant factors to be considered under 

R.C. 3109.04(F)(1)”). Here, the trial court did consider all factors and correctly 

determined that they were equally balanced. Therefore, the trial court had to make 

its allocation of parental rights and responsibilities based on the one factor that 

was not in balance.12 

{¶47} We recognize that “a child’s wishes are often transitory” and “[n]o 

court can permit a child constantly to effect change in his or her residential parent 

based on a simple change of mind in that regard.” Butland v. Butland, 10th Dist. 

Franklin No. 95APF09-1151, 1996 WL 362038, *4 (June 27, 1996). Instead, “a 

trial court should evaluate a child’s wishes and concerns regarding the allocation 

of parental rights and responsibilities from the standpoint of their depth, sincerity, 

and the extent they reflect changed circumstances within the parent-child 

relationship or relationship between the parties.” Id. 

{¶48} Here, the trial court noted that C.F.’s wishes and desires expressed 

during the in-camera interview appeared to be “well considered.” (R. at 170, at 6.) 

The magistrate and both parents agreed that C.F. was “bright, intelligent, articulate 

and mature for his age.” (Id.) C.F.’s desire to live with Thomas was not “a 

whim,” and it was not motivated by any disagreement with mom. (Id.) Rather, 

C.F. had been considering and discussing the possibility of living with his father 

 

12 This conclusion does not contradict our prior holding that “[a] child’s wishes regarding custody standing 

alone is not enough to constitute a change in circumstances.” McLaughlin v. McLaughlin-Breznenick, 3d 

Dist. Logan No. 8-06-06, 2007-Ohio-1087, ¶ 28. The threshold for a change in circumstances is different 

than a finding of what is in the best interest of the child. 
Case No. 17-15-16 

- 29 - 

for at least a couple of years. (Id.) His wishes were motivated by his belief that he 

would have a better violin opportunity, an opportunity to participate in a creative 

theater camp, and more educational opportunities. (R. at 94, at 9.) He also 

indicated that he needed a “guy” in the house. (Id.) Based on these findings, 

which are supported by the record, we find no abuse of discretion in the trial 

court’s finding that C.F.’s wishes align with his best interest, where both parents 

were found to be “suitable parents” and the “primary objection” that Mary had to 

the placement of C.F. with Thomas was “her desire to keep the family together.” 

(Id. at 5-6.) 

{¶49} The standard of review requires us to give deference to the trial 

court’s resolution of the issues and to the “determination made between competing 

considerations.” Huffman, 19 Ohio St.3d at 87, 482 N.E.2d 1248; Conway, 3d 

Dist. Crawford No. 3-07-05, 2007-Ohio-4933, at ¶ 12. Under this standard we 

hold that the trial court did not abuse its discretion in analyzing the factors of R.C. 

3109.05(F)(1) and determining that C.F.’s move to Washington to live with his 

father would be in his best interest. Accordingly, the trial court did not err in 

designating Thomas as the residential parent and legal custodian of C.F. after 

terminating the prior shared parenting decree. With this conclusion, we overrule 

the third assignment of error. 
Case No. 17-15-16 

- 30 - 

Fifth Assignment of Error—Findings of Fact and Conclusions of Law 

{¶50} Mary repeats her complaint made in the trial court, alleging that the 

magistrate’s decision was not specific enough to support the finding in favor of a 

change of custody. She thus asserts that the trial court erred in denying her request 

for findings of fact and conclusions of law in accordance with Civ.R. 

53(D)(3)(a)(ii). This rule states that 

[s]ubject to the terms of the relevant reference, a magistrate’s 

decision may be general unless findings of fact and conclusions of 

law are timely requested by a party or otherwise required by law. A 

request for findings of fact and conclusions of law shall be made 

before the entry of a magistrate’s decision or within seven days after 

the filing of a magistrate’s decision. If a request for findings of fact 

and conclusions of law is timely made, the magistrate may require 

any or all of the parties to submit proposed findings of fact and 

conclusions of law. 

Civ. R. 53. 

{¶51} Mary’s request filed under this rule was properly denied because the 

magistrate’s decision in this case was not a “general” decision under the rule. 

Indeed, the thirteen-page decision consisted of fourteen enumerated paragraphs. 

Each of these paragraphs dealt with different findings of fact (see, e.g., paragraphs 

1, 5, 6, 7, 8, 9, 10, 11), legal standards (see, e.g., paragraphs 2, 3, 4), and 

conclusions of law (see, e.g., paragraphs 10, 12). “Findings of fact and 

conclusions of law have a twofold purpose: they explain the factual and legal 

rationale for the trial court’s decision and, as a consequence, help make 

meaningful appellate review possible.” Brammer v. Brammer, 3d Dist. Marion 
Case No. 17-15-16 

- 31 - 

No. 9-12-57, 2013-Ohio-2843, ¶ 42. Both objectives are satisfied by the 

magistrate’s decision. 

{¶52} While Mary alleged that the magistrate’s decision did not sufficiently 

explain the magistrate’s findings, we have previously held: 

It is not realistic to expect a trial court to include a written analysis 

of each and every factual bit of information that was presented 

during a three-day hearing. Merely because the trial court chose to 

summarize its findings, and only list some of the pertinent facts that 

were instrumental in its decision, does not mean that it did not 

consider and weigh all of the evidence before it. 

Brammer at ¶ 43. 

{¶53} Based on the foregoing, we hold that the trial court did not err in 

denying Mary’s request for findings of fact and conclusions of law. We thus 

overrule the fifth assignment of error. 

V. Conclusion

{¶54} Having reviewed the arguments, the briefs, and the record in this 

case, we find no error prejudicial to Appellant in the particulars assigned and 

argued. The judgment of the Common Pleas Court of Shelby County, Ohio is 

therefore affirmed. 

Judgment Affirmed 

PRESTON, J., concurs 

ROGERS, J., concurs in Judgment Only. 

/hls