[Cite as Baker v. Baker , 2021-Ohio-3442.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

DANA BAKER Appellant

v. CARL BAKER Appellee C.A. No. 20CA011663

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 17 DU 082461

DECISION AND JOURNAL ENTRY Dated: September 30, 2021

CARR, Presiding Judge. {¶1} Appellant Dana Baker (“Mother”) appeals the judgment of the Lor ain County Court of Common Pleas, Domestic R elations Division. This Court reverses and remands the matter for proceedings consistent with this decision.

I. {¶2} Mother and Appellee Carl Baker ( “Father”) were married July 16, 2011. They have one son together, C.B., born May 3, 2008. In January 2017 , Mother filed a complaint for divorce. Thereafter, Father file d an answer and counterclaim. Ultimately, the parties entered into a settlement agreement a nd shared parenting plan. The par ties were divorced May 25, 2018. {¶3} Mother was named the residential parent for school enrollment p urposes. With respect to parenting time, Mother and Father alternated weekend s. In addition, Father had parenting time Tuesday, Wednesda y, and Thursday after school un til 7:00 p.m. The shared parenting plan also outlined a summer and holiday schedule. It further provided that both2

parents reserved the right to re quest a hair follicle drug scre en during the first year of the agreement. A drug screen could be requested up to four times i n the calendar year. {¶4} In February 2019, Father filed a motion to modify the prior all ocation of parental rights. A hearing was held before a magistrate and an in camer a interview was conducted with C.B. The magistrate issued a decision granting Father’s motion . The magistrate found three changes of circumstances, and that taken together, there was a substantial change. Specifically, the magistrate found the following changes of circumstances: ( 1) Mother failed to provide a stable living environment for the child; (2) Mother failed to t ake two requested drug tests pursuant to the agreed shared parenting plan; and (3) Mother at tempted to pick up C.B. while Mother was intoxicated. The mag istrate found that a modificati on of the shared parenting plan was in the best interest of C.B. and that the harm likely to be caused, if any, was outweighed by the advantages of the cha nge in environment to C.B. {¶5} The magistrate named Father the residential parent for school p urposes and altered the parenting time such that Mother would have parentin g time alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Mother was also found to be the child support obligor, but the obliga tion was deviated to $0.00 based upon the disparity in the parties’ incomes. All aspects of the shared parenting plan not modified were to remain in effect. The trial court adopted t he magistrate’s decision and entered judgm ent the same day. {¶6} Mother filed objections to the ma gistrate’s decision. She asse rted that the magistrate erred in finding that there had been a significant c hange of circumstances, by awarding Father significantly more parenting time, by not prope rly weighing the factors in the statute, and by relying on facts not properly in the record. M other requested to amend and supplement the objections upon r eceipt of the transcript.3

{¶7} It was then discovered that Fa ther’s and Mother’s testimony was not recorded and so the parties and tr ial court agreed that that testimony only should be reheard by the magistrate. On the date of the rehearing, counsel for Mother filed a motion in limine requesting an admissibility decision as to Father’s January 2017 conviction f or domestic violence. Following the hearing, with leave of court, Mother filed supplemental obj ections. Therein, Mother objected to the magistrate’s finding of a change of circumstances, the f inding that the modification was in the best interest of C.B., the finding that the harm likely to be caused by the change was outweighed by the advantages to C.B., and the magistrate’s deci sion to limit the testimony at the rehearing and not permit testimony as to Father’s domestic viol ence conviction. {¶8} An objections hearing was then hel d; however, a transcript of t hat hearing is not

in this Court’s record. Thereaf ter, the trial court issued a j udgment entry overruling Mother’s objections. {¶9} Mother has appealed, raising three assignments of error for our review. Her arguments will be addressed out of sequence to facilitate our a nalysis.

II.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE MOTION TO MODIFY THE PRIOR ALLOCATION OF PARENTAL RIGHTS[.] {¶10} Mother argues in her third assignment of error that the trial c ourt failed to follow the law with respect to a change of circumstances analysis, fai led to address the best interest factors, failed to conduct an i ndependent analysis of the magis trate’s decision, and erred in not admitting Father’s domestic violence conviction into evidence. {¶11} R.C. 3109.04(E)(1)(a) states:4

The court shall not modify a pri or decree allocating parental r ights and responsibilities for the care of c hildren unless it finds, base d 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 o f the child, the child’s residential parent, or e ither of the parents subject to a shared parenting decree, and that the modification is necessary to serve the bes t interest of the child. In applying these standa rds, the court shall retain the residential parent designated by the prior decree or the prior shared parenting de cree, unless a modification is in the best interest of the child and one of th e following applies: (i) The residential parent agrees to a change in the residentia l parent or both parents under a shared parenting decree agree to a change in th e designation of residential parent. (ii) The child, with the consent of the residential parent or o f 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 i s outweighed by the advantages of the change of environment to the child. {¶12} R.C. 3109.04(F)(1) provides: In determining the best interest of a child pursuant to this se ction, whether on an original decree allocating pare ntal 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 n ot limited to: (a) The wishes of the child’s pa rents regarding the child’s car e; (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 th e allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expr essed to the court; (c) The child’s interaction and interrelationship with the chil d’s parents, siblings, and any other person who may signi ficantly affect the child’s b est interest; (d) The child’s adjustment to t he child’s home , school, and com munity; (e) The mental and physical hea lth of all persons involved in t he situation; (f) The parent more likely to honor and facilitate court-approv ed parenting time rights or visitation and c ompanionship 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 pare nt is an obligor;5

(h) Whether either parent or any member of the household of eit her parent previously has been convicted of or pleaded guilty to any crimi nal offense involving any act that resulted in a child being an abused chil d or a neglected child; whether either parent, in a case in which a child has be en adjudicated an abused child or a neglected child, previously has been determin ed to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any me mber of the household of either parent previously has been convicted of or pleaded guilty to a violation of secti on 2919.25 of the Revised Code or a sexually orien ted offense involving a victim who at the time of the commission of the offense was a member of the family or hou sehold 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 commissio n 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 commis sion of the offense; and whether there is reason to believe that either par ent has acted in a manner resulting in a child bei ng an abused child or a neglecte d child; (i) Whether the residential pare nt or one of the parents subjec t to a shared parenting decree has continuously and willfully denied the othe r parent's right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is pl anning to establish a residence, outside this state. {¶13} “Although a court does not have t o ‘explicitly re iterate its fi ndings with regard to [each] factor’ under Section 3109.04( F)(1), ‘the statute does m andate consideration of each factor by the trial court[.]’” Herron v. Herron , 9th Dist. Summit No. 29264, 2019-Ohio-5095, ¶ 8, quoting Matis v. Matis , 9th Dist. Medina No. 04CA0025-M, 2005-Ohio-72, ¶ 6. “‘[I]t m ust be apparent from the record that the trial court considered the be st interest factors in its decision.’”

Herron at ¶ 8, quoting Phillips v. Phillips , 9th Dist. Lorain No. 13CA010358, 2014-Ohio-248, ¶

8. {¶14} Here, in rendering a decision, neither the magistrate nor the t rial court mentioned R.C. 3109.04(F)(1) or referred to any of the statutory factors governing the analysis. See Herron at ¶ 9. Much of the focus of the magistrate’s decision, and th erefore the trial court’s entry adopting it, was the existence of a substantial change of circu mstances. The magistrate6

concluded that “[t]he changes ar e substantial. Accordingly, a modification of the shared parenting plan is warranted.” T his ignores the language in the statute which requires that the modification is necessary to serv e the best interest of the chi ld. R.C. 3109.04(E)(1)(a). In other words, a modification is only warranted if it is needed to serv e the best interest of the child; the

fact there is a substantial cha nge of circumstances does not ne cessitate the conclusion that a

modification will be in the best interest of the child. While the magistrate then did state that the

orders were in the best interest of the child and the harm caus ed by the change was outweighed by the advantages, there is little focus in the entry as to how or why the change would be in the

best interest of the child. {¶15} While undoubtedly there were troubling facts revealed at the he aring, including that Mother had housing issues f or several months following the divorce, that Mother attempted to pick up C.B. while intoxicated, and that Mother refused to t ake two drug tests requested by Father, there was also testimony that would indicate that C.B. was nonetheless doing well. Additionally, C.B. was interviewed in chambers, yet there is no indication in the judgment entry that his statements played any role in the best interest analys is. See R.C. 3109.04(F)(1)(b). Overall, it is not clear the magistrate and trial court conside red the factors in R.C. 3109.04(F)(1) in determining whether the modification was in the best interes t of C.B. {¶16} To the extent Mother has argued that the trial court failed to properly consider the factors in R.C. 3109.04(F)(1), we sustain her assignment of err or. The remaining arguments are not properly before this Court at this time and this Court take s no position on the allocation of parental rights and responsibilities at this time. While the initial determination to be made by the trial court is with respect to whether there is the statuto rily required change of circumstances,

see Harrison v. Lewis , 9th Dist. Summit No. 28114, 2017-Ohio-275, ¶ 10, if the trial court were7

to conclude on remand that the ch ild’s best interests were not supported by the modification, any error in concluding that there had been a substantial change of circumstances would be harmless

and/or moot. {¶17} Mother’s third assignment of erro r is sustained to the extent d iscussed above.

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S DECISION IN GRANTING THE MOTION TO MODIFY THE PRIOR ALLOCATION OF PARENTAL RIGHTS WAS AN ABUSE OF DISCRETION[.]

ASSIGNMENT OF ERROR II

THE TRIAL COURT’S DECISION IN GRANTING THE MOTION TO MODIFY THE PRIOR ALLOCATION OF PARENTAL RIGHTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.] {¶18} Mother argues in her first assignment of error that the trial c ourt’s decision to grant Father’s motion was an a buse of discretion. She asserts in her second assignment of error that the decision was against the manifest weight of the eviden ce. In light of our resolution of Mother’s third assignment of error, these arguments are not pro perly before us at this time and

will not be addressed.

III. {¶19} Mother’s third assignment of error is sustained to the extent d iscussed above. Her remaining arguments are not prope rly before us at this time. T he judgment of the Lorain County Court of Common Pleas, Domestic R elations Division, is reversed , and the matter is remanded for proceedings consistent with this decision. Judgment reversed, and cause remanded.8

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.

APPEARANCES: MICHAEL J. TONY, Attorney a t Law, for Appellant. DANIEL J. GIBBONS, Attorney at Law, for Appellee.