[Cite as In re L.B., 2018-Ohio-1957.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

SANDUSKY COUNTY 

In re L.B. Court of Appeals No. S-17-028 

 

 Trial Court No. 21130108 

 

 

 

 DECISION AND JUDGMENT

 Decided: May 18, 2018 

* * * * * 

 Amanda A. Andrews, for appellant. 

* * * * * 

 PIETRYKOWSKI, J. 

{¶ 1} This is an appeal from the judgment of the Sandusky County Court of 

Common Pleas, Juvenile Division, which denied appellant-mother’s, T.B., motion to 

change custody of her minor child, L.B. For the reasons that follow, we affirm. 
2.

I. Facts and Procedural Background 

{¶ 2} This case began with a complaint in dependency and neglect filed by the 

Sandusky County Department of Job and Family Services (“the agency”). The complaint 

alleged that in the spring of 2011, appellant tried to commit suicide on a couple of 

occasions as she and appellee-father, B.B., were going through a divorce. In addition, the 

complaint alleged an occasion where appellee was drunk and became aggressive and 

violent. Appellee was arrested for domestic violence as a result of the incident, but 

ultimately was not convicted.

{¶ 3} The parties consented to a finding of dependency. On October 3, 2011, 

following a dispositional hearing, the trial court awarded temporary custody of L.B. to 

the paternal grandmother, J.R., under the protective supervision of the agency.1

 Effective 

July 24, 2012, protective supervision of L.B. was terminated, and appellee was awarded 

legal custody of L.B.

{¶ 4} On November 17, 2014, appellant filed the present motion for emergency 

and full custody. Appellant alleged that appellee contacted her and told her to come and 

get L.B. because he could not care for the child.

{¶ 5} A hearing on the motion was held on August 28, 2015. At the hearing, the 

guardian ad litem, appellant, and appellee testified.

 

1

 Temporary custody of appellant’s other child, J.B., was awarded to maternal aunt, B.G. 

J.B. is not the subject of these proceedings. 
3.

{¶ 6} The guardian ad litem testified that it was her recommendation that custody 

be awarded to appellant, with appellee to have liberal visitation. The guardian ad litem 

described appellant’s home as appropriate, and stated that there were no safety concerns 

regarding the housing. She also testified that L.B. would be sharing a room with his 

older brother, J.B., with whom there had been inappropriate interactions in the past. 

However, the guardian ad litem testified that J.B. has matured, and that the two now 

enjoy spending time together. Regarding appellant’s emotional stability, the guardian ad 

litem testified that based on her discussions with appellant, she feels that those issues 

have been resolved and would not prevent appellant from adequately caring for L.B. On 

cross-examination, the guardian ad litem admitted that she did not investigate what, if 

any, treatments or professional assistance appellant has engaged in to deal with her 

mental health issues.

{¶ 7} The guardian ad litem next expressed concern with appellee’s personal 

relationships, in that he has lived with, and had volatile relationships with, a number of 

women that resulted in him and L.B. having to move frequently. The guardian ad litem 

counted that appellee has moved six times in the last two to three years. L.B., however, 

has only attended two different schools. In kindergarten, he was in the Lakota School 

District, and in first and second grade, he has been in the Clyde School District. The 

guardian ad litem acknowledged that L.B. was well-adjusted to his school, and was 

performing well. If custody of L.B. were to be awarded to appellant, L.B. would then 
4.

attend school in the Port Clinton School District. The guardian ad litem also commented 

on appellee’s alcohol usage, noting that while appellee still drinks alcohol, it no longer 

prevents him from going to work, and there have been no legal issues involving the use 

of alcohol.

{¶ 8} The guardian ad litem concluded that it would be in L.B.’s best interest to 

live with appellant. The guardian ad litem described L.B. as a sensitive and very loving 

child, and she wished for him to be in a stress-free environment, without arguing and 

fighting, which she believed would be with appellant. The guardian ad litem did 

comment, however, that she could not predict the future, and both parents have a history 

of instability.

{¶ 9} Appellant testified next. She testified that the main reason the court should 

award her custody of L.B. is that her home is more stable. Appellant testified that she has 

a close, loving relationship with L.B., and she described the activities they enjoy doing 

together and L.B.’s interests. She also described that when he is with her, L.B. enjoys the 

fact that he knows what the agenda is and what the expectations are for each day. 

Appellant further explained that there is not any fighting at her house, and that any issues 

are discussed instead of argued with raised voices.

{¶ 10} In contrast, appellant testified that appellee has had six different residences 

since he has had custody of L.B., and she was not always certain where she would be 

dropping off or picking up L.B. In addition, appellant testified that L.B. would become 
5.

attached to the different women in appellee’s life, and it impacts L.B. when those 

relationships end. Appellant then testified that as recently as the prior summer, appellee 

has called her on several occasions when he was drunk, and asked her to come take care 

of L.B. because he could not take care of him.

{¶ 11} Concerning her own mental health, appellant testified that she attempted 

suicide four or five years ago, but she is no longer in that state of mind or suffering from 

mental instability. Appellant explained that, at the time, she was going through a messy 

divorce, her father was sick with two different kinds of cancer, and her family did not get 

along because of the divorce. She stated that none of those issues were currently present 

in her life.

{¶ 12} Finally, appellant called appellee as a witness as upon cross-examination. 

Appellee described that he has dated a number of women in the past few years, and has 

stayed with them on occasion, but he has also had a permanent address where he lived. 

Appellee listed five different places where he has lived since being married to appellant, 

each one lasting for less than a year. Appellee testified that regardless of where they 

were, L.B. has always had his own bed in which to sleep. Appellee agreed that it 

probably was not appropriate parenting to have six women in his minor child’s life in a 

two-year period.

{¶ 13} In addition, appellee testified regarding appellant’s scheduled phone calls 

with L.B. Appellee stated that while he does not always answer appellant’s calls because 
6.

he may be at work, he does not ignore appellant’s time to talk with L.B., and reschedules 

or works out a different arrangement for L.B. to talk with his mother.

{¶ 14} Appellee also acknowledged that he has called appellant and asked her to 

come pick up L.B. because he had been drinking. Appellee was not positive if he has 

done that on more than one occasion. He conceded that, at the time, it was probably not a 

stable environment for L.B. Relatedly, appellee testified that he had concerns that 

appellant may put L.B. in harm’s way given her past suicide attempt, which occurred 

while the child was in the home. Appellee explained that he was not aware of any steps 

that appellant has taken to address the problem, and that he still feels concern that it may 

happen again.

{¶ 15} Following appellee’s testimony on cross-examination, appellant moved to 

admit the guardian ad litem’s report, and then rested.

{¶ 16} Appellee then testified on his own behalf. Appellee described his current 

living arrangement as a five-bedroom house on an acre of land. Appellee explained that 

he works in the construction industry, and there are times when there is a lot of work, and 

times when there is not as much work. When things got tight, appellee testified that he 

would move in with family members or friends to make sure that he could still provide 

for L.B. Appellee noted that appellant has not consistently paid child support, and that 

she owes over $2,700.
7.

{¶ 17} Appellee also testified that he does not believe that appellant would follow 

court orders regarding parenting time if she were awarded legal custody of L.B. Appellee 

described a recent event where he was returning from vacation, and appellant refused to 

give L.B. back to him, and the police became involved. Appellee also testified to an 

event in November 2014, where appellant picked up L.B. from school in the middle of 

the day and did not return him for two days.

{¶ 18} Regarding appellant’s mental health, appellee testified that based on his 11 

years of being married to her, he observed that appellant would self-medicate with 

prescription drugs and recreational drugs when things were not going the way she wanted 

them to go. Appellee further testified that appellant had attempted to commit suicide on 

three occasions between 2011 and 2012, and that the children were present on two of 

those occasions. Appellee expressed his concern over whether appellant has received any 

treatment, or how she could now determine that she does not have any mental health 

issues.

{¶ 19} Appellee concluded that it would be in L.B.’s best interests not to modify 

custody. Appellee explained that L.B. was well-adjusted to his school and community, 

and is active in school and has friends there. Appellee testified that he would be willing, 

and it would be in L.B.’s best interests, to allow appellant to have visitation one week on 

and one week off, provided that L.B. could remain in the same school.
8.

{¶ 20} Thereafter, appellee moved to admit L.B.’s report cards, and appellant’s 

child support payment information. Appellee then rested.

{¶ 21} Following the hearing, the magistrate entered his decision on September 4, 

2015. The magistrate found that, under R.C. 3109.04, there had been no change in 

circumstances regarding appellee or L.B. Specifically, the magistrate found that moving 

residences alone was not sufficient to demonstrate a change in circumstances, and that 

there was no testimony of any other change in circumstances. Therefore, the magistrate 

denied appellant’s motion.

{¶ 22} On September 14, 2015, appellant objected to the magistrate’s decision, 

arguing that it was contrary to law, against the manifest weight of the evidence, and an 

abuse of discretion. Further, appellant moved for leave to supplement her objection once 

the transcript from the hearing was filed. The trial court granted the motion for an 

extension, and allowed appellant 30 days after the transcript was filed to supplement her 

objection.

{¶ 23} The transcript was filed on December 10, 2015. On January 12, 2016, 

appellant filed her revised objection to the magistrate’s decision, in which she argued that 

the magistrate’s decision failed to consider the guardian ad litem’s recommendation, 

incorrectly found that moving residences alone is not sufficient for a finding of change of 

circumstances, and erroneously concluded that there had been no change of 

circumstances.
9.

{¶ 24} On August 4, 2017, the trial court entered a judgment in response to 

appellant’s subsequent “Motion for Emergency Temporary Custody of the Minor Child 

During the Pendency of this Action.” Included in that judgment was a reference to 

appellant’s objection to the magistrate’s September 14, 2015 decision. The trial court 

stated that since the transcript was filed on December 10, 2015, appellant’s objection was 

due on January 9, 2016. Because appellant did not file her objection until January 12, 

2016, the objection was denied.2

 The trial court noted that it failed to document that 

decision in a standard fashion, and therefore clarified that “this Court does hereby 

formally deny the objection.”

II. Assignment of Error 

{¶ 25} Appellant has timely appealed the trial court’s judgment denying her 

objection to the magistrate’s decision, and now asserts one assignment of error for our 

review:

1. The trial court abused its discretion in denying appellant’s motion 

to modify the allocation of parental rights and responsibilities. 

 

2

 Appellee claims that she filed her supplemental objection on Monday, January 11, 2016, 

which would have been timely because January 9, 2016, was a Saturday. However, the 

fax filing that she sent to the clerk’s office was timestamped at 6:49 p.m., after the close 

of normal business hours. 
10.

III. Analysis

{¶ 26} Appellant and the trial court treated appellant’s November 17, 2014 

motion for emergency and full custody as arising under R.C. 3109.04, thus we will 

do the same. Pursuant to R.C. 3109.04(E)(1)(a), 

The court shall not modify a prior decree allocating parental rights 

and responsibilities for the care of the 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: 

 * * * 

(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. 

{¶ 27} Before analyzing whether a modification to the allocation of parental rights 

and responsibilities is in the child’s best interest, the court must first determine whether a 

change in circumstances has occurred. Perz v. Perz, 85 Ohio App.3d 374, 376, 619 
11.

N.E.2d 1094 (6th Dist.1993). “The clear intent of [this requirement] 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.” Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th 

Dist.1982). 

{¶ 28} The Supreme Court of Ohio has held that the change of circumstances 

“must be a change of substance, not a slight or inconsequential change.” Davis v. 

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Further, the phrase 

“change in circumstances,” generally denotes “an event occurrence, or situation which 

has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio 

App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000). “In determining whether a 

‘change’ has occurred * * * a trial judge must have wide latitude in considering all the 

evidence before him or her * * * and such a decision must not be reversed absent an 

abuse of discretion.” Flickinger at 418, citing Miller v. Miller, 37 Ohio St.3d 71, 523 

N.E.2d 846 (1988). 

{¶ 29} In support of her argument that there was a change of circumstances, 

appellant cites “[a]ppellee’s interference with parenting time, appellee’s deplorable living 

conditions, as well as numerous women in and out of the minor child’s life, appellee’s 

job instability, the child’s absence(s) and tardies from school,” as well as appellee’s 

“inability to financially care for the minor child,” “the constant moving of residences,” 
12.

appellee’s “failure to participate in any manner in the minor child’s life,” and the fact that 

appellee has contacted appellant on several occasions when he had been drinking to come 

and get the child. We will briefly address each contention in turn. 

{¶ 30} Appellant cites appellee’s interference with parenting time, however, 

appellee testified that although appellant’s calls with L.B. are sometimes missed, they are 

not ignored, and other arrangements are made. Further, there was no testimony that 

appellant’s physical visits with L.B. were frustrated by appellee. To the contrary, the 

testimony adduced at trial pertained to two occasions where appellant interfered with 

appellee’s parenting time. 

{¶ 31} Appellant next cites appellee’s “deplorable living conditions.” There is 

simply no evidence from the hearing to support this statement. Appellee testified that he 

is currently living in a five-bedroom house with plenty of room for L.B. To the extent 

that appellant is referencing appellee’s previous residences, appellee testified that while 

L.B. may have had to share a room sometimes, he always had his own bed. Additionally, 

there was no testimony that any of the residences were unsafe or unsanitary. 

{¶ 32} Regarding appellant’s contention of job instability and inability to 

financially care for L.B., the record shows that while appellee has had up and downs as 

far as his volume of work, he has always been employed. Further, he testified that he has 

been able to financially care for L.B. despite appellant failing to make her child support 

payments. 
13.

{¶ 33} Appellant also lists L.B.’s numerous absences and tardies from school as a 

change of circumstances. Again, the record does not support appellant’s position. L.B.’s 

school records show that in kindergarten he was absent three days and tardy zero days, in 

first grade he was absent five and one-half days and tardy two days, and in second grade 

he was absent four days and tardy four days. Relatedly, appellant cites appellee’s failure 

to participate in any manner in L.B.’s life. In support, appellant points to appellee’s 

failure to attend any parent-teacher conferences. Appellee testified, however, that he did 

not physically attend the conferences, but that he spoke with the school and teachers on 

the phone. 

{¶ 34} Finally, appellant cites appellee’s numerous relationships with women, the 

constant switching of residences, and the fact that appellee has contacted appellant to 

come and get the child when he had been drinking. Here, the record supports appellant’s 

assertions, as it is undisputed that appellee has had multiple relationships and has moved 

in and out of residences as those relationships have begun and ended. In addition, the 

guardian ad litem testified that the constant moving and conflict between appellee and 

these women have upset L.B. Finally, appellee admitted that, on at least one occasion, he 

has contacted appellant to come and pick up L.B. in the middle of the night because he 

had been drinking and could not take care of the child. 

{¶ 35} However, the trial court found that these facts alone did not amount to a 

sufficient change of circumstances to warrant reexamining the custody determination. 
14.

Ohio courts have routinely held that, “[A] relocation, by itself, does not constitute a 

change of circumstances.” E.g., Valentine v. Valentine, 12th Dist. Butler No. CA2004-

01-024, 2005-Ohio-2366, ¶ 44. “A proposed move along with a finding that the move 

will harm the welfare of the children involved, however, can constitute a change of 

circumstances.” Id. Here, the trial court did not find that the numerous moves materially 

affected L.B. Further, the trial court did not find that calling appellant to come and get 

the child on a couple of occasions constituted a change of circumstances. Given the wide 

latitude afforded to the trial court in these matters, we cannot say that the trial court’s 

determination was an abuse of discretion. 

{¶ 36} Accordingly, appellant’s assignment of error is not well-taken. 

IV. Conclusion

{¶ 37} For the foregoing reasons, we find that substantial justice has been done the 

party complaining, and the judgment of the Sandusky County Court of Common Pleas, 

Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal 

pursuant to App.R. 24. 

Judgment affirmed. 
15.

In re L.B. 

Case No. S-17-028 

 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. ____________________________ 

 JUDGE 

Arlene Singer, J. 

____________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

____________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.