[Cite as Welch v. Schudel, 2010-Ohio-715.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

VAN WERT COUNTY 

 

EARNEST P. WELCH, 

 PLAINTIFF-APPELLANT, CASE NO. 15-09-13 

 v. 

JULIE A. SCHUDEL, O P I N I O N 

 

 DEFENDANT-APPELLEE. 

 

Appeal from Van Wert County Common Pleas Court 

Domestic Relations Division 

Trial Court No. DR 01-06-111 

Judgment Affirmed 

Date of Decision: March 1, 2010 

 

APPEARANCES: 

Andrew B. King for Appellant 

Martin D. Burchfield for Appellee 
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PRESTON, J. 

{¶1} Plaintiff-appellant, Ernest P. Welch (hereinafter “Ernest”), appeals 

the Van Wert County Court of Common Pleas’ judgment denying his motion for a 

reallocation of parental rights and responsibilities. For the reasons that follow, we 

affirm. 

{¶2} Ernest and the defendant-appellee, Julie A. Schudel (formerly 

Welch) (hereinafter “Julie”), were divorced on July 24, 2002 and awarded shared 

parental rights for their minor child, Trinity A. Welch (d.o.b. 4/24/00) (hereinafter 

“Trinity”), who was born as issue of the marriage. (Doc. No. 18). The shared 

parenting agreement provided, in pertinent part, that Earnest would have physical 

custody of Trinity every other week Thursday through the following Tuesday. 

(Doc. No. 17). After Trinity enrolled in Kindergarten in the school district where 

Julie resided, however, the shared parenting agreement provided Ernest visitation 

on weekends in accordance with local rules. (Doc. No. 18). 

{¶3} On September 16, 2004, Earnest filed a motion to modify or 

terminate the shared parenting plan and to reallocate parental rights and 

responsibilities. (Doc. No. 24). On February 25, 2005, the magistrate issued a 

decision recommending that the shared parenting plan be amended to provide 

Earnest with more parenting time, but that the plan be continued as amended. 
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(Doc. No. 40). On May 31, 2005, the trial court adopted and approved the 

magistrate’s decision. (Doc. No. 43). 

{¶4} Thereafter, on July 2, 2008, Earnest filed a second motion for 

reallocation of parental rights and responsibilities, which is the subject of this 

present appeal. (Doc. No. 45). The matter proceeded to a hearing on January 15, 

2009. (Doc. No. 53). Earnest was represented by counsel at the hearing, but Julie 

appeared and proceeded pro se. (Jan. 15, 2009 Tr. at 2-3). Thereafter, on February 

4, 2009, the trial court held an in-camera interview of the parties’ minor child, 

Trinity. (Doc. No. 56).1

 On May 8, 2009, the magistrate issued a decision 

recommending that: Earnest be named Trinity’s residential parent with Julie being 

afforded visitation pursuant to local rule; and Julie be ordered to pay child support 

to Earnest in the amount of $190.96 per month. (Doc. No. 61). 

{¶5} On May 19, 2009, Attorney Martin D. Burchfield entered an 

appearance as counsel for Julie. (Doc. No. 62). On May 21, 2009, Julie filed a 

motion seeking an extension of time to file her objections to the magistrate’s 

decision, and for findings of fact and conclusions of law. (Doc. No. 63). On May 

22, 2009, the magistrate granted Julie fourteen (14) days from the filing of the 

transcript to file her objections. (Doc. No. 65). 

 

1

 We note that this Court has not been provided with a transcript of the magistrate’s in-camera interview 

with Trinity. 
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{¶6} On July 27, 2009, Julie filed her objections to the magistrate’s 

decision, arguing that an absence of a change in circumstances precluded the 

magistrate from modifying the parental rights of the parties. (Doc. No. 68). On 

August 21, 2009, the trial court sustained Julie’s objections, overruled the 

magistrate’s decision, and reinstated all previous orders of the court. (Doc. No. 

70). 

{¶7} On September 9, 2009, Earnest filed a notice of appeal from the trial 

court’s August 21, 2009 judgment. Earnest now appeals raising one assignment of 

error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN FINDING THAT NO 

CHANGE IN CIRCUMSTANCES HAD OCCURRED 

RELATIVE TO THE PARTIES OR THEIR MINOR CHILD 

SINCE THE ISSUANCE OF THE PRIOR PARENTING 

DECREE AND THAT THE COURT WAS PRECLUDED 

FROM MODIFYING PARENTAL RIGHTS AND 

RESPONSIBILITIES. 

{¶8} In his sole assignment of error, Earnest argues that the trial court 

erred by failing to find a change in circumstances upon which the magistrate could 

reallocate parental rights and responsibilities. Earnest points to several facts that 

he alleges are changes in circumstances, including: (1) the child’s age and the fact 

that the child expressed her wishes and concerns to the magistrate during an incamera interview; (2) Julie has moved twice without proper notice being provided 
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to the court or to him; (3) that Julie has lived with one boyfriend for a year and is 

currently involved with another man who stays at her home most evenings but has 

another residence where Julie and Trinity sometimes stay even on school nights; 

(4) Julie’s mother cares for Trinity every day after school and helps her with all of 

her homework due to Julie’s current work schedule; (5) Trinity is unable to 

participate in extracurricular activities due, in part, to Julie’s work schedule; (6) 

Julie is often asleep in the mornings so that Trinity has to prepare herself for 

school, which has resulted in Trinity being late several times; (7) at least once, 

Trinity waited outside for the school bus for two hours since school was delayed; 

(8) Julie has failed to provide Trinity with necessary medications for her asthma 

and allergies, failed to attend doctor’s appointments, and, generally, failed to take 

responsibility for Trinity’s healthcare; (9) as a result of Julie’s failure to ensure 

that Trinity has taken her medication, Trinity’s lung capacity deteriorates while in 

Julie’s care; whereas, her lung capacity showed signs of improvement when she 

was with Earnest over the summers; (10) Julie fails to pay for Trinity’s school 

supplies and provide Trinity with lunch money, which Earnest provides in addition 

to his monthly child support and medical expenses; (11) Earnest has since 

remarried, is self-employed and working from home, which would allow him to be 

home in the mornings prior to school and in the evenings after school for Trinity. 

{¶9} R.C. 3109.04 provides, in pertinent part: 
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(E)(1)(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 * * * 

On the one hand, a change in circumstances must be “a change of substance, not a 

slight or inconsequential change.” Davis v. Flickinger (1997), 77 Ohio St.3d 415, 

418, 674 N.E.2d 1159. As the Court in Davis stated, “‘[t]he changed conditions * 

* * must be substantiated, continuing, and have a materially adverse effect upon 

the child. The latter is the paramount issue.’” 77 Ohio St.3d at 417, quoting Wyss 

v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153. See, also, 

Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d 599, 604-05, 737 N.E.2d 551; 

Lindman v. Geissler, 171 Ohio App.3d 650, 2007-Ohio-2003, 872 N.E.2d 356, 

¶33. On the other hand, R.C. 3109.04(E)(1)(a) does not require that the change be 

“substantial,” nor does “‘the change * * * have to be quantitatively large, but 

rather, must have a material effect on the child.’” Davis, 77 Ohio St.3d at 417-18; 

McLaughlin v. McLaughlin-Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-1087, 

¶16, citing In Re Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377, 

¶31, citing Green v. Green, 3d Dist. No. 14-03-29, 2004-Ohio-185, ¶7. 

{¶10} As the Court in Davis noted, R.C. 3109.04(E)(1)(a)’s “change of 

circumstances” requirement furthers the statute’s: 
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* * * clear intent * * * 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. The statute 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. 

77 Ohio St.3d at 418, quoting Wyss, 3 Ohio App.3d at 416. Likewise, it has been 

noted that “‘[t]he purpose of requiring a finding of a change in circumstances is to 

prevent a constant relitigation of issues that have already been determined by the 

trial court.’” Saal v. Saal (2001), 146 Ohio App.3d 579, 582, 767 N.E.2d 750, 

quoting Zinnecker v. Zinnecker (1999), 133 Ohio App.3d 378, 383, 728 N.E.2d 38. 

{¶11} In determining whether a “change” in circumstance 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.” 

Davis, 77 Ohio St.3d at 418, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 523 

N.E.2d 846. Applying this standard of review, “an award of custody * * * 

supported by a substantial amount of credible and competent evidence * * * will 

not be reversed as being against the weight of the evidence by a reviewing court.” 

Davis, 77 Ohio St.3d at 418, quoting Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 

550 N.E.2d 178, syllabus. Though a trial court’s discretion in a custody 

proceeding is broad, it is not absolute, and the trial court must follow the 

procedure described in the applicable statute. Miller, 37 Ohio St.3d at 74. 
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{¶12} The trial court sub judice concluded that Earnest had failed to 

establish a change in circumstances under R.C. 3109.04(E)(1)(a), which precluded 

the court from modifying the parental rights and responsibilities of the parties. 

(Doc. No. 68). The trial court stated as follows: 

Certainly, the plaintiff correctly cites that the defendant has 

changed residences, has changed jobs, and has changed 

boyfriends. He also argues that Trinity (Welch), d.o.b. 

4/24/2000, is now more mature since the issuance of the prior 

decree. However, these examples of “change” are all within the 

natural contemplation and anticipation of the parties, (or 

reasonably should have been), when the prior parenting decree 

was issued. The magnitude of “change” as envisioned by statute 

cannot be “mere” change, such as would naturally be 

anticipated by a reasonable person. Otherwise natural “change 

“would result in constant efforts by parents to seek 

modifications, further resulting in placement disruptions to the 

child.[”] Further review of the transcript, by the court, does not 

reveal any other such “change in circumstances” that would 

otherwise warrant a modification from the prior decree. 

(Id.). 

{¶13} Applying the foregoing rules of law here, we cannot conclude that 

the trial court abused its discretion by finding that the record does not contain any 

change in circumstances under R.C. 3109.04(E)(1)(a) warranting a modification 

from the prior decree. Earnest’s alleged changes of circumstances do not 

constitute “a change of substance” sufficient to warrant a change of custody 

determination. Davis, 77 Ohio St.3d at 418. Earnest’s arguments that he is now 

married, works from home, and would be present when Trinity gets ready for 
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school and returns from school; and that Trinity cannot be involved in 

extracurricular activities due, in part, to Julie’s work schedule are essentially 

arguments that Trinity would be better off with him because he could provide her 

with a better environment. Evidence that a child would be better off is not 

sufficient to support a change of custody. Well v. Well (1990), 70 Ohio App.3d 

606, 591 N.E.2d 843. Likewise, “custody of a child will not be changed merely on 

a showing by the nonresidential parent that he can provide a better environment 

than the residential parent.” Allgood v. Allgood (Oct. 25, 1999), 12th Dist. No. 

CA98-12-156, at *7, citing Wyss, 3 Ohio App.3d 412; Saal, 146 Ohio App.3d at 

583. The Court in Hayes v. Hayes rejected a father’s arguments that he had the 

ability to spend more time with his son than before and that he had recently built a 

“gated-community” home in an “excellent” school district where his son could 

play hockey constituted changes in circumstances under the statute. 11th Dist. No. 

2005-L-138, 2006-Ohio-6538, ¶22. The Court in Hayes agreed with the trial court 

that the father’s arguments were essentially that he could provide a “better” home 

environment, which is insufficient to find a change in circumstances. Id. 

{¶14} Likewise, the Court in Andrews v. Andrews found that a father’s 

allegations that his former wife failed to provide their daughter with sufficient 

medical attention; that his former wife moved from Ohio without notifying the 

court; that his former wife quit her job in Ohio and took a job in Virginia; that the 
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children were removed from their school systems; that his former wife filed 

bankruptcy; and that five years have gone by since the original divorce decree did 

not constitute a change in circumstances. 11th Dist. No. 2005-T-0121, 2006-Ohio4942, ¶¶28-41. Like the father in Andrews, who raised similar purported changes 

in circumstances, Earnest has failed to show that the changes have had a materially 

adverse effect upon Trinity. Davis, 77 Ohio St.3d at 418, quoting Wyss, 3 Ohio 

App.3d at 416; Rohrbaugh, 136 Ohio App.3d at 604-05; Lindman, 2007-Ohio2003, at ¶33; McLaughlin, 2007-Ohio-1087, at ¶16, citing In Re Tolbert, 2006-

Ohio-2377, at ¶31, citing Green, 2004-Ohio-185, at ¶7. 

{¶15} The evidence at the hearing demonstrated that Julie moved to a 

house that was a half-mile down the road from Julie’s parents. (Jan. 15, Tr. at 

114). Julie admitted that she neglected to inform the court that she had moved, but 

Julie testified that she gave Earnest’s wife, Molly, actual notice of the move. (Id.). 

Furthermore, there is nothing in the record to indicate that this move had a 

materially adverse effect upon Trinity; in fact, the record contains competent, 

credible evidence from which the trial court could have concluded that the move 

benefited Trinity because it allowed her to be closer to her grandmother, Patricia 

Ann Schudel. (Id.); (Id. at 82-83). In fact, Patricia testified that she is able to be at 

Julie’s house when the school bus drops Trinity and Trinity’s cousin, Devin, off at 

the house. (Id. at 90). Patricia then takes Trinity to her home where she does her 
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homework until Julie is finished with work. (Id. at 89). According to Earnest’s 

own testimony, Trinity was excelling academically and considered gifted. (Id. at 

15-16). 

{¶16} Furthermore, Julie’s new boyfriend, Eric Langenberfer, testified that 

Trinity has her own bedroom in Julie’s house, and that his girls slept on a couch 

that pulls out into a bed when they stay the night at Julie’s. (Id. at 101). 

Langenberfer also testified that he could not recall a time when Trinity stood 

outside for two hours in the fog while waiting for the school bus. (Id. at 102). 

Trinity’s grandmother, Patricia, also could not remember such an incident, and 

testified that Trinity has her own room, and that Langenberfer’s daughters sleep on 

the couch when the stay at Julie’s. (Id. at 83, 99-100). Julie also refuted Earnest’s 

allegations that Trinity had to get ready for school by herself. (Id. at 115). Julie 

entered into evidence a copy of Trinity’s progress report, which showed that 

Trinity had only two (2) absences. (Defendant’s Ex. A). 

{¶17} With regard to Trinity’s medical issues, Julie testified that she went 

to several doctor’s appointments in the beginning, but that her (Julie’s) school 

schedule changed so she could not attend the appointments. (Id. at 114). 

Thereafter, Earnest stopped informing her of Trinity’s appointments and even took 

Trinity from school for the appointments without informing Julie. (Id. at 114-15). 

With regard to Trinity being involved in extracurricular activities, Julie testified 
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that Trinity was a girl scout for a while but did not want to continue it, and that 

Trinity could not be in most other activities because they involved weekends when 

Trinity was with her father who lives out of town. (Id. at 14, 116). Trinity is 

involved in choir at school. (Id. at 117). 

{¶18} After reviewing the record herein, we can conclude that there was 

competent, credible evidence from which the trial court could have concluded that 

Trinity was not adversely affected from any of the purported changes in 

circumstances. Davis, 77 Ohio St.3d at 418, quoting Bechtol, 49 Ohio St.3d 21, 

syllabus. As such, the trial court did not abuse its discretion in finding no change 

in circumstances under R.C. 3109.04(E)(1)(a). Without a change in 

circumstances, the trial court could not reallocate the parental rights and 

responsibilities of the parties herein. R.C. 3109.04(E)(1)(a); Davis, 77 Ohio St.3d 

416. Furthermore, since the trial court found no change in circumstances, it was 

not required to conduct a best interest analysis under R.C. 3109.04(E)(1)(a), 

(F)(1). See, e.g., Wooten v. Schwaderer, 3d Dist. No. 14-08-13, 2008-Ohio-3221, 

¶4, citing Fox v. Fox, 3d Dist. No. 5-03-42, 2004-Ohio-3344, ¶38 (change in 

circumstances is a threshold inquiry before determining whether the modification 

would be in the child’s best interests); Markley v. Markley, 9th Dist. No. 

06CA0043, 2007-Ohio-886, ¶12, quoting Cowan v. Cowan, 4th Dist. No. 04CA5, 

2004-Ohio-6119, ¶16. (“If no change in circumstances occurred, the requirements 
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for a change of custody cannot be satisfied, and a reviewing court need not 

examine the court’s determination of the child’s best interests.”). 

{¶19} Earnest’s sole assignment of error is, therefore, overruled. 

{¶20} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and SHAW, J., concur. 

/jlr