[Cite as Myers v. Wade, 2017-Ohio-8833.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Walter Myers, : 

 Plaintiff-Appellant, : 

 No. 16AP-667 

v. : (C.P.C. No. 13JU-4556)

LaTonia Wade, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on December 5, 2017 

 

On brief: Cynthia Roy, for appellant. Argued: Cynthia Roy.

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations, Juvenile Branch 

BRUNNER, J. 

{¶ 1} Plaintiff-appellant, Walter Myers, appeals from a final judgment of the 

Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, 

that overruled his objections to a decision and entry adopting a magistrate's decision 

granting the motion for modification of parental rights and responsibilities of defendantappellee, LaTonia Wade. For the following reasons, we affirm the judgment of the trial 

court. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Myers and Wade are the parents of three minor children. The parties were 

never married but lived together periodically for 13 years. In 2013, the parties filed a shared 

parenting plan, which named mother as residential parent for school placement purposes, 

and father had parenting time every other weekend from 9:00 a.m. Saturday to 8:00 p.m. 

Sunday, and every Wednesday from 5:00 p.m. until 8:30 p.m. (Dec. 13, 2013 Plan for 

Shared Parenting.) 
No. 16AP-667 2 

{¶ 3} On June 18, 2014, Wade filed a relocation notice that she was moving to 

Arizona. On June 23, 2014, Myers filed a motion for reallocation of parental rights and 

responsibilities, which he later withdrew on April 10, 2015. On September 2, 2014, Wade 

filed a motion for reallocation of parental rights and responsibilities. On March 24, 2015, 

Myers filed a motion to modify visitation. 

{¶ 4} The basis for both motions to modify was Wade's relocation to Arizona for 

health reasons in April 2015. She received a diagnosis of lupus in 2012 and she testified 

that the Arizona climate is better for her health. The parties filed a temporary agreed entry 

designating Myers as school placement parent and terminating his child support obligation 

until further order of the court. From April 2015 until the final order of the court in August 

2016, the children lived with Myers in Ohio and Wade lived in Arizona. 

{¶ 5} The matter proceeded to trial on August 12 and 13, 2015. The magistrate filed 

a decision on September 16, 2015. The magistrate's decision ordered continued shared 

parenting, with Wade remaining as residential parent for school placement purposes and 

modified parenting time for Myers based on Wade's move to Arizona. 

{¶ 6} Myers filed a request for findings of fact and conclusions of law on September 

21, 2015, along with objections to the magistrate's decision. On June 8, 2016, the 

magistrate filed a decision that included findings of fact. The trial court provided Myers an 

opportunity to supplement his objections. Myers did so on July 25, 2016. On August 22, 

2016, the trial court overruled Myers's objections and found it to be in the children's best 

interest to maintain the current plan for shared parenting with Wade as residential parent 

for school placement purposes. Myers filed a timely notice of appeal. 

II. ASSIGNMENTS OF ERROR 

{¶ 7} Myers argues two assignments of error for our review: 

[1.] The trial court erred and abused its discretion in 

designating appellee school placement parent after her 

relocation to Arizona and said designation is against the 

manifest weight of the evidence. 

[2.] The trial court's decision to name appellee school 

placement parent after relocation is contrary to law and not in 

the best interest of the minor children. 
No. 16AP-667 3 

III. DISCUSSION 

A. Second Assignment of Error 

{¶ 8} For clarity and ease of discussion, we address Myers's second assignment of 

error first. In his second assignment of error, Myers argues that the trial court's decision is 

contrary to law and not in the best interest of the minor children for naming Wade school 

placement parent. More specifically, Myers argues that the trial court failed to apply R.C. 

3109.04(E)(1)(a) properly because any likely harm caused by a change in circumstances of 

the move to Arizona is not outweighed by the advantages of the change. The trial court 

stated that the magistrate was not required to consider R.C. 3109.04(E)(1)(a)(iii) in this 

case based upon Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589. The question 

of whether a trial court correctly interpreted and applied a statute is a question of law, and 

we review it de novo. State v. Willig, 10th Dist. No. 09AP-925, 2010-Ohio-2560, ¶ 14. 

{¶ 9} R.C. 3109.04(E) governs post-decree modification of parental rights and 

responsibilities. Under R.C. 3109.04(E)(1)(a), the trial court shall not modify a prior decree 

allocating parental rights and responsibilities for the care of children unless it finds: 

[B]ased 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

* * *. 

(Emphasis added.) R.C. 3109.04(E)(1)(a). See also In re James, 113 Ohio St.3d 420, 2007-

Ohio-2335, paragraph one of the syllabus. 

{¶ 10} In addition to determining whether modification of a prior decree allocating 

parental rights is in the best interest of the child, one of the following must apply: (1) both 

parents under a shared parenting plan agree to a modification, (2) with consent of the 

parents, the child has become integrated into the family of the person seeking to become 

the residential parent, or (3) the harm likely to be caused by a change of environment is 

outweighed by the advantages of the change of environment to the child. And the court on 

its own motion and at any time "may modify the terms of the plan for shared parenting 
No. 16AP-667 4 

approved by the court and incorporated by it into the shared parenting decree" if the court 

determines that "the modifications are in the best interest of the children or upon the 

request of one or both of the parents under the decree." R.C. 3109.04(E)(2)(b). But under 

this section the court "shall not make any modification to the plan under this division, 

unless the modification is in the best interest of the children." Id. The legislature, through 

R.C. 3109.04, concerning the allocation of parental rights and responsibilities for the care 

of children, or "shared parenting," seems to instruct that once allocation is established, 

whether by decree (declaring that shared parenting shall occur) or according to a plan 

(implementing the decree or order), changing it is presumed to be ill-advised unless it can 

be established foremost that the change will be in the best interest of the children. 

{¶ 11} In Fisher, the Supreme Court of Ohio considered the meaning of "parental 

rights and responsibilities" as used in R.C. 3109.04. The Supreme Court determined that 

"parental rights and responsibilities reside in the party or parties who have the right to the 

ultimate legal and physical control of a child." Fisher at ¶ 22. When a trial "court designates 

a residential parent and legal custodian, the court is allocating parental rights and 

responsibilities" and must follow R.C. 3109.04(E)(1)(a). Fisher at ¶ 23. 

{¶ 12} The Fisher court further explained the distinctions between modifying a 

shared parenting "plan" and a shared parenting "order" noting that the "designation of 

residential parent and legal custodian can be modified under R.C. 3109.04(E)(1)(a)," but 

modifying terms of a shared parenting plan is pursuant to R.C. 3109.04(E)(2)(b). Fisher at 

¶ 27. A "plan" provides for the implementation of the court's shared parenting order and 

includes 

"provisions covering all factors that are relevant to the care of 

the children, including, but not limited to, provisions covering 

factors such as physical living arrangements, child support 

obligations, provision for the children's medical and dental 

care, school placement, and the parent with which the children 

will be physically located during legal holidays, school holidays, 

and other days of special importance." 

Fisher at ¶ 28, quoting R.C. 3109.04(G). Under Fisher, the designation of school placement 

parent is a term of and determined by a shared parenting "plan" and pursuant to R.C. 

3109.04(E)(2). Thus it does not require a finding that the harm likely to be caused by a 

change of environment is outweighed by the advantages of the change of environment to 
No. 16AP-667 5 

the children which would be a factor for consideration required pursuant to R.C. 

3109.04(E)(1)(a) were a party to seek modification of a decree or order. 

{¶ 13} Also, this Court considered the application of R.C. 3109.04(E)(1)(a) to the 

modification of the amount of parenting time between the parents to a shared parenting 

plan in Ramsey v. Ramsey, 10th Dist. No. 13AP-840, 2014-Ohio-1921. In Ramsey, we 

determined that the modification to the amount of parenting time divided between the 

parents was a modification to the terms of a shared parenting plan and required the trial 

court to do so pursuant to R.C. 3109.04(E)(2), not 3109.04(E)(1)(a). Based on the authority 

of Fisher and Ramsey, the trial court did not err in finding that the magistrate was not 

required to consider R.C. 3109.04(E)(1)(a)(iii) and the trial court did not err in refusing to 

do so. See Fisher; Ramsey. Accordingly, we overrule Myers's second assignment of error. 

B. First Assignment of Error 

{¶ 14} In his first assignment of error, Myers argues that the trial court's decision 

resulted from an abuse of discretion and was against the manifest weight of the evidence 

when it continued to designate Wade as school placement parent after her relocation to 

Arizona. Myers's basis for argument is that the trial court's decision is not in the best 

interest of the minor children.

{¶ 15} A trial court must follow R.C. 3109.04 when deciding child custody matters 

but it has broad discretion when determining what is the appropriate allocation of parental 

rights and responsibilities. Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110, ¶ 

23. An appellate court must accord a trial court's determinations regarding parental rights 

and responsibilities the " 'utmost respect, given the nature of the proceeding and the impact 

the court's determination will have on the lives of the parties concerned. The knowledge a 

trial court gains through observing the witnesses and the parties in a custody proceeding 

cannot be conveyed to a reviewing court by a printed record.' " Pater v. Pater, 63 Ohio 

St.3d 393, 396 (1992), quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Therefore, an 

appellate court will only reverse a trial court's custody determination if the trial court 

abused its discretion. Miller at 74; Parker at ¶ 23. "The term 'abuse of discretion' connotes 

more than an error of law or judgment; it implies that the court's attitude is unreasonable, 

arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 16} When determining the best interest of the child, a trial court must consider 

multiple factors, including factors enumerated in R.C. 3109.04(F):
No. 16AP-667 6 

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

(b) If the court has interviewed the child in chambers 

pursuant to division (B) of this section regarding the child's 

wishes and concerns as to the allocation of parental rights and 

responsibilities concerning the child, the wishes and concerns 

of the child, as expressed to the court; 

(c) The child's interaction and interrelationship with the 

child's parents, siblings, and any other person who may 

significantly affect the child's best interest; 

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

community; 

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

the situation; 

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

companionship rights; 

(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that 

parent pursuant to a child support order under which 

that parent is an obligor; 

(h) Whether either parent or any member of the household of 

either parent previously has been convicted of or pleaded guilty 

to any criminal offense involving any act that resulted in a child 

being an abused child or a neglected child; whether either 

parent, in a case in which a child has been adjudicated an 

abused child or a neglected child, previously has been 

determined to be the perpetrator of the abusive or neglectful 

act that is the basis of an adjudication; whether either parent 

or any member of the household of either parent previously has 

been convicted of or pleaded guilty to a violation of section 

2919.25 of the Revised Code or a sexually oriented offense 

involving a victim who at the time of the commission of the 

offense was a member of the family or household that is the 

subject of the current proceeding; whether either parent or any 

member of the household of either parent previously has been 

convicted of or pleaded guilty to any offense involving a victim 

who at the time of the commission of the offense was a member 

of the family or household that is the subject of the current 

proceeding and caused physical harm to the victim in the 

commission of the offense; and whether there is reason to 
No. 16AP-667 7 

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)(a) through (j). 

{¶ 17} The magistrate examined the factors set forth in R.C. 3109.04(F). In his 

supplemental objections, Myers argued that the magistrate's findings of fact were not based 

on facts in evidence. The trial court compared the factual issues Myers raised to the 

evidence in the transcript. It determined that the magistrate's conclusions of fact that 

Myers alleged to be inapposite to the evidence were subject to interpretation by the trier of 

fact. The trial court found that the magistrate's findings of fact were not so divergent from 

the transcript as to make the magistrate's findings of fact invalid. The trial court 

determined that the magistrate properly applied the best interest factors in R.C. 

3109.04(F)(1), (F)(2), and (F)(3) to his factual findings and that his decision was not against 

the manifest weight of the evidence. The decision of a domestic relations court's parental 

rights allocation findings is subject to review for abuse of discretion, which we have already 

discussed. Here, Myers argues in addition that the trial court's decision on reallocation was 

against the manifest weight of the evidence, or not supported by some competent, credible 

evidence going to all the essential elements of the case. " '[J]udgments supported by some 

competent, credible evidence going to all the essential elements of the case will not be 

reversed by a reviewing court as being against the manifest weight of the evidence.' C.E. 

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus." 

Butland v. Butland, 10th Dist. No. 95APF09-1151, 1996 Ohio App. LEXIS 2773, *21 (June 

27, 1996). 

{¶ 18} Myers argues that the best interest factors in R.C. 3109.04(F) favor him as 

the school placement parent. Both parents requested the designation as school placement 

parent, almost all of the parties' families live in central Ohio and the children had adjusted 

to Myers's house at the time of trial. Wade's physical health is the impetus of her move to 
No. 16AP-667 8 

Arizona. The parties disagreed as to the parenting time and exchanges of the children with 

Myers testifying Wade interfered with his parenting time and Wade testifying that Myers 

was often late and forfeited his parenting time. 

{¶ 19} Myers argues that Wade cannot provide for the children in Arizona. Her 

family is here is central Ohio. She is unable to work due to her health issues. She receives 

long-term disability of $1,480 per month, but the rent on her apartment is $935.13 per 

month. (Tr. Vol. I at 89, 93.) The children had not visited her in Arizona but the guardian 

ad litem testified that all three children consistently expressed a desire to move to Arizona 

and live with Wade there. (Tr. Vol. II at 317.) 

{¶ 20} The trial court reviewed the parties' plans for shared parenting, the 

transcript, the evidence and the pleadings, and it arrived at the same conclusion as the 

magistrate, finding it to be in the minor children's best interest to maintain the current plan 

for shared parenting with Wade as residential parent for school placement purposes. 

{¶ 21} Wade has been the primary caretaker of the children for their entire lives. 

Wade reported a significant improvement in her health in Arizona. Wade found a church 

affiliated with the family's current church and investigated the schools. The magistrate 

believed Wade's testimony that Myers has not been cooperative in maintaining contact with 

her and did not timely respond to her requests to Skype. The magistrate also found that 

Myers's lack of cooperation regarding parenting time has made shared parenting a difficult 

and stressful venture. Therefore, the magistrate found Wade was more likely to honor the 

court-ordered terms of parenting time than Myers. 

{¶ 22} Myers also argues that the guardian ad litem failed to perform her duties in 

accordance with the Rules of Superintendence for the Courts of Ohio, specifically, Sup.R. 

48(D)(13).1 Alleged violations of the Rules of Superintendence are not a basis for reversal. 

 

1 Ohio Rules of Superintendence of the Courts of Ohio, Rule 48(D)(13) requires: 

A guardian ad litem shall make reasonable efforts to become informed 

about the facts of the case and to contact all parties. In order to provide 

the court with relevant information and an informed recommendation 

as to the child's best interest, a guardian ad litem shall, at a minimum, 

do the following, unless impracticable or inadvisable because of the age 

of the child or the specific circumstances of a particular case:

(a) Meet with and interview the child and observe the child with each 

parent, foster parent, guardian or physical custodian and conduct at least 

one interview with the child where none of these individuals is present; 
No. 16AP-667 9 

The "Rules of Superintendence are designed (1) to expedite the 

disposition of both criminal and civil cases in the trial courts of 

this state, while at the same time safeguarding the inalienable 

rights of litigants to the just processing of their causes; and (2) 

to serve that public interest which mandates the prompt 

disposition of all cases before the courts." State v. Singer

(1977), 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216. "They are 

not the equivalent of rules of procedure and have no force 

equivalent to a statute. They are purely internal housekeeping 

rules which are of concern to the judges of the several courts 

but create no rights in individual defendants." State v. Gettys

(1976), 49 Ohio App.2d 241, 243, 360 N.E.2d 735. Accord State 

v. Navedo, 11th Dist. No. 2007-L-094, 2008-Ohio-2324, at ¶ 

18, citing State v. Kowalski, 11th Dist. No. 93-P-0057, 1995 

Ohio App. LEXIS 1089, at *16-*17. 

Allen v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, ¶ 31. 

{¶ 23} The trial court as the factfinder may choose to believe or disbelieve any 

witness, and "the court is free to accept or reject, in whole or in part, the testimony or 

opinions of any witness, whether accepted as an expert or not and determine the weight 

 (b) Visit the child at his or her residence in accordance with any standards 

established by the court in which the guardian ad litem is appointed; 

(c) Ascertain the wishes of the child; 

(d) Meet with and interview the parties, foster parents and other 

significant individuals who may have relevant knowledge regarding the 

issues of the case; 

(e) Review pleadings and other relevant court documents in the case in 

which the guardian ad litem is appointed; 

(f) Review criminal, civil, educational and administrative records 

pertaining to the child and, if appropriate, to the child's family or to other 

parties in the case; 

(g) Interview school personnel, medical and mental health providers, child 

protective services workers and relevant court personnel and obtain copies 

of relevant records; 

(h) Recommend that the court order psychological evaluations, mental 

health and/or substance abuse assessments, or other evaluations or tests 

of the parties as the guardian ad litem deems necessary or helpful to the 

court; and 

(i) Perform any other investigation necessary to make an informed 

recommendation regarding the best interest of the child. 
No. 16AP-667 10 

and credibility to be given thereto." Jackson v. Jackson, 5th Dist. No. 03-CA-17, 2004-

Ohio-816, ¶ 21, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the 

syllabus ("[T]he weight to be given the evidence and the credibility of the witnesses are 

primarily for the trier of facts."). 

{¶ 24} Most of Myers's argument centers around his disagreement with the trial 

court's determination on parental rights allocation supported by the trial court's believing 

both Wade's and the guardian ad litem's testimony. The trial court reviewed the evidence, 

the pleadings, and the best interest factors and determined that it is in the minor children's 

best interest that Wade remain designated the residential parent for school placement 

purposes under the parties' shared parenting plan. We find no abuse of discretion in that 

determination. Nor can we find that the trial court's determination is against the manifest 

weight of the evidence. 

{¶ 25} Accordingly, Myers's first and second assignments of error are overruled and 

the judgment of the trial court is affirmed. 

IV. CONCLUSION 

{¶ 26} For the foregoing reasons, Myers's two assignments of error are overruled 

and we affirm the judgment of the Franklin County Court of Common Pleas, Division of 

Domestic Relations, Juvenile Branch. 

Judgment affirmed. 

KLATT and HORTON, JJ., concur.