[Cite as In re Dissolution of Marriage of Kelly, 2011-Ohio-2642.]

 STATE OF OHIO, CARROLL COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

IN THE MATTER OF ) 

THE DISSOLUTION OF THE ) CASE NO. 09 CA 863 

MARRIAGE OF: ) 

 ) 

ROBERT T. KELLY ) 

 ) 

 PETITIONER-APPELLEE, ) 

 ) 

 AND ) OPINION 

 ) 

KYDE L. KELLY, ) 

 ) 

 PETITIONER-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 05 DRC 24457. 

JUDGMENT: Reversed. 

APPEARANCES: 

For Petitioner-Appellee: Attorney Emanula Agresta 

100 N. Fourth Street 

Suite 300 

Steubenville, OH 43952 

For Petitioner-Appellant: Attorney Christopher A. Maruca 

Attorney Daniel P. Osman 

The Maruca Law Firm 

201 E. Commerce St., Suite 316 

Youngstown, OH 44503 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 
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Hon. Gene Donofrio 

Dated: May 27, 2011 

DeGenaro, J. 

{¶1} Petitioner-Appellant, Kyde L. Kelly (nka Jones) appeals the decision of the 

Carroll County Court of Common Pleas modifying her parental rights with regard to the 

parties' minor child, Nathan Kelly, following Kyde's notice of intent to relocate from Ohio to 

Wyoming and Petitioner-Appellee Robert T. Kelly's motion to modify parental rights. On 

appeal, Kyde first argues the trial court abused its discretion by permitting a witness to 

testify as an expert about the long-term ramifications of Nathan relocating. Second, she 

argues the trial court abused its discretion by granting Robert's motion to modify parental 

rights. Third and alternatively, she argues the trial court abused its discretion by failing to 

enter a conditional judgment entry which would have allowed her to maintain custody as 

long as she did not relocate out of state. 

{¶2} Upon review, the court abused its discretion in granting Robert's motion to 

modify parental rights because a mere intention or desire to relocate does not constitute 

the requisite change in circumstances. As our resolution of this issue is dispositive of the 

appeal, Kyde's remaining assignments of error are moot. Thus, the judgment of the trial 

court is reversed. 

Facts and Procedural History 

{¶3} Kyde and Robert were married on May 3, 2003. Nathan was born as issue 

of the marriage on September 4, 2004. Both parties reside in East Liverpool where 

Nathan has resided since birth. Kyde works as a prosecuting attorney in Lisbon. Robert 

works as a mortgage loan officer in Pittsburgh. The parties filed a petition for dissolution 

of marriage, and the decree of dissolution issued on December 16, 2005, designated 

Kyde as the residential/custodial parent. The decree did not place any restrictions upon 

the residential parent's ability to relocate. Further, Robert was granted liberal parenting 

time and he agreed to pay child support. As both Kyde and Robert were employed full-
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time, they relied on their parents to provide child care during the workday. As such, 

Nathan formed close relationships with both sets of grandparents. 

{¶4} Following their dissolution, the parties made some attempts at 

reconciliation. Inasmuch as the parties were together more often, sometimes overnight, 

Robert's parenting time with Nathan was more liberal. However, by August 2008 

attempts at a permanent reconciliation failed, as Robert chose to pursue a relationship 

with Tammy Bauer. 

{¶5} Because Nathan would be enrolled in preschool, the trial court issued an 

agreed judgment entry modifying parental rights on September 29, 2008. Kyde remained 

the residential/custodial parent, and Robert's parenting time and child support obligation 

were modified accordingly. 

{¶6} At the time the parties' attempts to reconcile failed, Kyde began a longdistance relationship during the fall of 2008 with Craig Jones, a prosecuting attorney in 

Wyoming. Between January 2009 and August 2009, Craig visited Kyde in Ohio several 

times for a total of about 30 days. Craig spent time with Nathan during these visits. Kyde 

also took Nathan to meet Craig's mother in Indiana. Craig and Kyde were engaged in 

March 2009. 

{¶7} Kyde filed a notice of intent to relocate, stating she intended to relocate to 

Cheyenne, Wyoming around August 1, 2009 and planned to take Nathan with her. 

Although Kyde later filed a "Proposed Long-Distance Companionship Order," she never 

formally moved the court to modify Robert's parenting time rights pursuant to R.C. 

3109.051(C). In response, Robert filed a motion for reallocation of parental rights and 

responsibilities, requesting that he be designated the residential/custodial parent. He 

stated that the change in circumstances was Kyde's intent to relocate with Nathan to 

Wyoming, along with Nathan's reactions to the impending move. He claimed it would not 

be in Nathan's best interest to be taken away from his support network of family and 

friends. 

{¶8} On July 23, 2009, Kyde and Craig married in Wyoming in a private, civil 

ceremony. Kyde did not bring Nathan to the wedding because she did not have 
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permission from the court to take him out of state during the pendency of the 

proceedings. Craig and Kyde entered into a lease agreement for a house in Wyoming. 

Kyde chose a school for Nathan there but did not enroll him. 

{¶9} During two days of evidentiary hearings, both parties put on extensive 

evidence. At the beginning of the hearing, the parties jointly requested that the trial court 

enter a conditional judgment entry that would allow Kyde to maintain custody in the event 

she decided not to move to Wyoming. In other words, they requested that in the event 

the court determined that the relocation, coupled with other circumstances, necessitated 

a change in custody, that the court issue a conditional ruling maintaining the status quo in 

the event Kyde chose not to move. The court denied this request out of concerns that it 

would be "prejudging the case." The court further stated that it viewed the trial as "an all 

or nothing situation," and that therefore it would not issue a conditional ruling. 

{¶10} In support of his case, Robert presented the following witnesses: himself; 

Kyde; his neighbor and friend Anson Wiegard; his live-in girlfriend Tammy Bauer; his 

father, Bob Kelly; and Terry Dehamer, a licensed counselor and social worker. Kyde 

presented the following witnesses: herself; her new husband Craig Jones; her co-worker, 

Tammy Riley-Jones (no relation to Craig); and her pastor Eric Edwards. 

{¶11} Relevant to the issues on appeal, Kyde testified about her courtship with 

Craig and subsequent marriage. Kyde stated that she was still serving as a prosecutor 

and that she did not have a job in Wyoming. She intended to be a stay-at-home mom, at 

least until February 2010 when she could apply for admission by motion to the Wyoming 

bar. She said Craig's current income could support them, and that Craig was also being 

considered for a judgeship, which is merit-based in Wyoming. She said that in the event 

that she did return to work, she would want a job that would allow her to take Nathan to 

school and pick him up each day. For example, she could continue to do part-time 

bankruptcy work, as she does now, from home in Wyoming. 

{¶12} Further, Kyde testified that Craig sought positions with offices in surrounding 

counties, but did not receive any favorable responses. Craig has no children of his own, 

is recently divorced and has no family in Wyoming. His family is from Indiana and Kyde 
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and Nathan visited them in May 2008. 

{¶13} Kyde testified that she had chosen a parochial school for Nathan to attend 

in Wyoming, but had not enrolled him. She also found doctors and a dentist for Nathan. 

In July 2008, Kyde and Craig entered into a lease with purchase option for a house in 

Wyoming. However, Kyde stated that the landlord understood the situation, and would 

allow them to get out of the lease by forfeiting the security deposit. 

{¶14} Kyde said that if she maintains custody and moves to Wyoming she would 

facilitate communication between Robert and Nathan via Skype. She testified she would 

foster Nathan's relationships with his family back in Ohio. 

{¶15} Craig Jones testified, similar to Kyde, about his background, career, income 

and rental home. His first plan had been to move to Ohio to be with Kyde and Nathan but 

he could not find a job because the area was much more "economically challenged" than 

the Cheyenne, Wyoming area. Craig believed he had bonded with Nathan. He said he 

was confident that if Kyde relocated with Nathan she would continue to facilitate 

visitations between Nathan, Robert and his extended family. 

{¶16} Robert then testified. He said that if granted custody he would continue to 

foster relationships between Nathan and his extended family, including Kyde's family. He 

confirmed that both sets of grandparents played significant roles in the care-taking of 

Nathan. Robert commutes 100 miles roundtrip to Pittsburgh each day for work. Even 

though it would have been easier for him to relocate there, he has not because he wants 

to stay close to Nathan. If granted custody, he said he had no plans to locate outside the 

area as he wished for Nathan to grow up surrounded by extended family. He discussed 

his work schedule and said he talked to his company and could have a more flexible 

schedule if he got custody of Nathan. 

{¶17} Exhibits were presented in furtherance of each side's position. Both parties 

submitted proposed findings of fact and conclusions of law, pursuant to the court's 

directive at trial. 

{¶18} On November 6, 2009, the trial court issued a judgment entry including 

findings of fact and conclusions of law designating Robert the residential parent and legal 
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custodian of Nathan and granting Kyde long-distance visitation. Kyde filed a notice of 

appeal as well as a motion to stay the judgment pending appeal. In support, she stated 

she still resides in Columbiana County and had no intention of leaving without Nathan. 

The trial court granted the stay for that reason.

Modification of Parental Rights 

{¶19} Because resolution of Kyde's second assignment of error is dispositive of 

this appeal, we will address it first. Kyde asserts: 

{¶20} "The trial court's judgment granting the motion to modify parental rights was 

an abuse of discretion." 

{¶21} A trial court has broad discretion in its determination of parental custody 

rights since it has the authority to make an equitable decision based upon the facts and 

circumstances in each case. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 

1028. Therefore, a trial court's custody determination should not be disturbed unless it 

constitutes an abuse of discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 

N.E.2d 178. 

{¶22} "The discretion which a trial court enjoys in custody matters should be 

accorded 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. In this regard, the reviewing 

court in such proceedings should be guided by the presumption that the trial court's 

findings were indeed correct." Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 

846, 849. 

{¶23} That said, although a trial court's discretion in a custody modification 

proceeding is broad, it is not absolute, and must be guided by the language set forth in 

R.C. 3109.04. Id. 

{¶24} R.C. 3109.04(E)(1)(a) governs the modification of an existing decree 

allocating parental rights and responsibilities, and states, in pertinent part: 

{¶25} "The court shall not modify a prior decree allocating parental rights and 
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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, 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: 

{¶26} "* * * 

{¶27} "(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." R.C. 3109.04(E)(1)(a)(iii). 

{¶28} Accordingly, three elements must be proven to change the residential 

parent status from one parent to the other: (1) there must be an initial showing of a 

change in circumstances, (2) if circumstances have changed, the modification of custody 

must be in the children's best interests, and, (3) any harm to the children from a 

modification of the plan must be outweighed by the benefits of such a modification. 

"Additionally, R.C. 3109.04(E)(1)(a) creates a rebuttable presumption that retaining the 

residential parent designated by the prior decree is in the child's best interest." 

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

District). 

{¶29} In modifying custody to Robert, the court discussed in detail each of the 

elements and concluded that Robert had proven each one. Kyde challenges each of 

these determinations. Her first argument, that there has not been a change in 

circumstances, is meritorious and therefore dispositive of this appeal. 

{¶30} This court has previously noted that [a]lthough R.C. 3109.04 does not set 

forth a definition of the phrase "change in circumstances", Ohio courts have generally 

held that the phrase is intended to denote "an event occurrence, or situation which has a 

material and adverse effect upon a child." Rohrbaugh at 604, quoting Wyss v. Wyss

(1982), 3 Ohio App.3d 412, 3 OBR 479, 445 N.E.2d 1153. 
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{¶31} A mere desire or intent to relocate does not constitute the requisite change 

in circumstances. Rather, there must be an actual relocation, Masters v. Masters (1994), 

69 Ohio St.3d 83, 630 N.E.2d 665; Campana v. Campana, 7th Dist. No. 08 MA 88, 2009-

Ohio-796, or in at least one case, substantial steps taken in furtherance of an imminent 

relocation. DeVall v. Schooley, 5th Dist. No. CT2006-0062, 2007-Ohio-2582. 

{¶32} In Masters, the Ohio Supreme Court held that the trial court abused its 

discretion by changing the custodial parent from mother to father where the only evidence 

supporting its conclusion was the mother's filing of a motion to remove the child from the 

state. Masters, 69 Ohio St.3d at 85. The court reached this conclusion because filing the 

motion to relocate merely reflected the mother's desire to leave the state and did not on 

its own constitute a change in circumstances. Id. at 86. 

{¶33} In Campana, the father sought a change in custody due to the mother's 

contemplation of remarriage and relocation. The mother had filed a notice of intent to 

relocate with an accompanying motion to modify the father's parenting time to the court's 

standard long distance visitation order. The father objected to the relocation and the 

modification of parenting time and filed a motion to reallocate parental rights so that he 

would be designated the residential parent. The trial court denied the father's motion for 

reallocation of parental rights. On appeal, this court affirmed, concluding there was no 

change in circumstances which would warrant the change in custody. 

{¶34} "The father did not allege that [the mother] will move even in the absence of 

court modification of his visitation, and he does not seek a custody change on any basis 

other than his opinion that his son should not move to Wyoming. As the Supreme Court 

held in Masters, the mother's mere filing of the notice for the court's input is not a 

changed circumstance that the father can use for a change of residential parent status." 

Campana at ¶34. 

{¶35} On the other hand, in DeVall, although the mother claimed she was still "in 

the process of moving," the court of appeals affirmed a change in circumstances based 

upon the relocation: 

{¶36} "We recognize, in the case sub judice, that appellant testified she was still in 
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the 'process of moving' at the time of the evidentiary hearing. Tr. at 25-27. Some of her 

furniture, including her bed, remained in Morgantown. Tr. at 26. Appellant further stated 

that she had not yet commenced her new job at a retail store in King George. Tr. at 16. 

Appellant also indicated she had yet to decide on a doctor or dentist for the child. Tr. at 

25. However, she had already enrolled Susan in school in Virginia for the upcoming fall, 

and, as the trial court noted, had withdrawn the child from her current school, telling the 

administrators Susan would not return in the fall. Tr. at 25, 44; Judgment Entry at 2. 

Moreover, the trial judge specified that he had reviewed evidentiary exhibits consisting of 

photographs of appellant's new house in Virginia and of Susan standing in said house in 

her furnished bedroom. Judgment Entry at 2. 

{¶37} "Upon review of the record, we are not inclined to substitute our judgment 

for that of the trial court on the issue of the status of appellant's relocation. We therefore 

hold that the trial court acted within its discretion in finding that the 'marriage and 

relocation' in this matter was a fait accompli, thus distinguishing this case from the 

scenario addressed by the Ohio Supreme Court in Masters." DeVall at ¶16. 

{¶38} This case is more akin to Campana and Masters than to DeVall. Kyde 

testified from the very beginning of trial that she would not move to Wyoming without 

Nathan. She had not quit her job with the prosecutor's office, and had not moved out of 

her house or moved any of her personal belongings to Wyoming. She did choose a 

school for Nathan in Wyoming, however, she had not enrolled him there. And although 

she and Craig did enter into a lease agreement for a house in Wyoming, they testified 

that the landlord would let them break the lease without significant financial 

consequences beyond forfeiting the security deposit. 

{¶39} Tellingly, the trial court's findings of fact are fraught with conditional 

language about the move: "Mother offered testimony that if allowed to relocate * * *." 

"Kyde Kelly's proposed move to Wyoming * * *." 

{¶40} Considering that no actual relocation had taken place and that Kyde testified 

she would not move to Wyoming without Nathan, the trial court abused its discretion in 

finding a change in circumstances in this case. Kyde's second assignment of error is 
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meritorious. 

{¶41} The lack of a change in circumstances ends our inquiry. Thus, we do not 

reach the other two R.C. 3109.04(E)(1)(a)(iii) elements, analyzing the best interests of the 

child, and determining whether the advantages from the change outweigh the harm. This 

analysis need not be undertaken because we have concluded that there was not a 

change in circumstances. See, e.g., Adams v. Adams, 4th Dist. No. 05CA2, 2005-Ohio4588, at ¶15 ("[B]ecause a change in circumstances has not occurred, we need not 

address appellant's arguments that granting his motion to modify the prior allocation of 

parental rights and responsibilities would serve the child's best interests and that the 

benefits of modifying custody outweighs any harm.") 

Mootness 

{¶42} Kyde's first and third assignments of error assert respectively: 

{¶43} "The trial court abused its discretion in permitting Terry Dehamer to testify." 

{¶44} "The trial court abused its discretion by failing to enter a conditional 

judgment entry which would allow Appellant to maintain custody as long as she did not 

relocate to Wyoming." 

{¶45} Our favorable resolution of the second assignment of error renders these 

remaining assignments of error moot and dispenses with our need to address them. See 

App.R. 12(A)(1)(c). 

{¶46} The trial court abused its discretion by modifying parental rights in this 

case. Robert did not prove the required change in circumstances since Kyde had not 

actually relocated and maintained she would not relocate without Nathan. The remaining 

assignments of error are rendered moot based upon our determination that the trial 

court's reallocation of parental rights was improper. Accordingly, the judgment of the trial 

court is reversed. 

Waite, P.J., dissents. See dissenting opinion. 

Donofrio, J., concurs. 

Waite, P.J., dissenting. 
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{¶47} I must dissent in this matter because I believe it should be decided using the 

usual standard of review instead of what appears to be a de novo standard applied by the 

majority opinion. As courts of appeal judges, we routinely affirm decisions that may not 

be identical to the decisions we would have made had we been in the shoes of the trial 

court judge. Given our normal deference to the findings of the trier of fact, there is ample 

evidence of record here to support the conclusion reached by the trial court that a change 

of circumstances occurred. This is not a case wherein one parent sought to prove that a 

change in circumstances occurred based on a mere request to plan a move by the other 

parent. Appellant has in fact remarried a prosecuting attorney who lives in Wyoming and 

they have started a new life together in Wyoming. Although it is possible to “cherry pick” 

certain facts from the record in order to come to a different conclusion than the trial court, 

this is not how we traditionally review child custody decisions. The majority appears 

inclined to usurp the role of the trier of fact and virtually ignore the evidence supporting 

the trial court’s decision. Thus, I dissent because there is substantial evidence in the 

record supporting the conclusions reached by the trial court pursuant to our normal 

standard of review. 

{¶48} The standard of review in this case is correctly cited in the majority opinion. 

The trial court has broad discretion in making child custody determinations. Booth v. 

Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. “[I]t is inappropriate in most 

cases for a court of appeals to independently weigh evidence * * *. The discretion which 

a trial court enjoys in custody matters should be accorded the utmost respect, given the 
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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.” Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. 

{¶49} It is also true that the trial court’s discretion is not absolute in child custody 

matters. Pursuant to R.C. 3109.04(E)(1), in order to modify a decree allocating parental 

rights and responsibilities the trial court must find that a change in circumstances has 

taken place since the issuance of the prior decree and only then proceed to determine 

whether modification is in the best interests of the child. The Ohio Supreme Court, in the 

syllabus of Davis v. Flickinger (1997), 77 Ohio St.3d 415, 674 N.E.2d 1159, held: 

{¶50} “1. R.C. 3109.04 requires a finding of a ‘change in circumstances.’ Such a 

determination when made by a trial judge should not be disturbed, absent an abuse of 

discretion. 

{¶51} “2. In determining whether a change in circumstances has occurred so as 

to warrant a change in custody, a trial judge, as the trier of fact, must be given wide 

latitude to consider all issues which support such a change.” 

{¶52} Although the majority opinion cites the correct standard of review, in the 

majority’s analysis, the facts that support the trial court’s judgment are either ignored or 

discounted. 

{¶53} The majority concludes that this case is directly analogous to Campana v. 

Campana, 7th Dist. No. 08 MA 88, 2009-Ohio-796, which (coincidentally) involved a 

mother’s attempt to relocate to Wyoming with her child, as in the instant appeal. In 
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Campana, the mother, who was the child's residential parent, filed a notice of intent to 

relocate with the child to Wyoming, along with a motion to modify the father's visitation. 

She intended to marry a man from Wyoming if the court allowed her to relocate with her 

son. The father filed a motion to reallocate parental rights, seeking to be designated as 

the child's residential parent. The father argued that the mother’s intent to relocate along 

with the request to modify visitation constituted sufficient change in circumstances to 

allow him to be automatically designated the residential parent. The trial court denied the 

father's motion and ultimately allowed the mother to relocate with the child. This 

judgment was upheld on appeal. We held that the filing of a notice to relocate and a 

request for modification of visitation did not constitute, by themselves, a change in 

circumstances that could support a reallocation of parental rights. Id. at ¶31-35, citing 

Masters v. Masters (1994), 69 Ohio St.3d 83, 630 N.E.2d 665. 

{¶54} Although many aspects of Campana are certainly useful in analyzing the 

instant appeal, it is completely distinguishable from the instant appeal in one very 

important respect. In Campana, the trial court found no change in circumstances 

occurred and denied the father’s motion to reallocate parental rights. This is the decision 

that was affirmed on appeal. We accepted the facts that supported the trial court’s 

judgment and deferred to that judgment. In the instant appeal, the trial court ruled in 

favor of the father, finding that there was a change in circumstances based on the facts 

presented. Hence, we are called on to accept, if reasonable, the facts that support the 

trial court’s conclusion that a change of circumstances has taken place if the evidence of 

record supports that conclusion. The majority does not accept the facts as found by the 
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trial court. Hence, it is important to recognize that Campana should also be distinguished 

on factual grounds. In Campana, the mother had not yet remarried when the motion to 

reallocate parental rights was heard. In this case, Appellant has already remarried. 

Importantly, in Campana the only facts that the father relied on to support reallocation of 

parental rights were the mere filing of the notice of intent to relocate and the motion to 

modify visitation. In this appeal, there are numerous other facts, including that Appellant 

had substantially already begun her move to Wyoming and had gone beyond merely 

requesting permission for such a move on the part of her child. 

{¶55} Again, absent some abuse of discretion, we are bound to accept the facts 

as found by the trial court in deciding whether that court erred in finding a change in 

circumstances. So long as the record reasonably supports the trial court’s determination, 

we should affirm that decision. Unlike in the Campana opinion, where the trial court held 

that no change in circumstances had already occurred and this decision was found to be 

supported by the record and affirmed, the majority opinion here reverses the trial court’s 

conclusion that there was a change in circumstances, relying for the most part on their 

own review and reweighing of facts using only those facts that undermine or discredit the 

trial court’s findings. For example, the majority emphasizes the importance of Appellant’s 

testimony that she was not going to move to Wyoming without her son, even though she 

clearly contradicted this testimony in another part of the transcript. The majority notes 

that she did not actually purchase a house in Wyoming, had not yet quit her job as 

prosecutor in Ohio, and had not actually enrolled her child in a new school. These are 

certainly interesting parts of the record, but the trial court heard other testimony that could 
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easily have outweighed, to that court, the facts cited by the majority. First, Appellant 

actually remarried an attorney, Craig Jones, who lives in Wyoming, and this fact is not in 

dispute. The wedding itself took place in Wyoming. Although remarriage alone is not 

normally sufficient to support a change in circumstances, it is always an important 

consideration when reviewing whether a change in circumstances has occurred. See, 

e.g., Wilson v. Wilson, 4th Dist. No. 09CA1, 2009-Ohio-4978, ¶26; Weisgarber v. 

Weisgarber, 5th Dist. No. 2008CA0067, 2009-Ohio-20, ¶45; Bracy v. Bracy, 3d Dist. No. 

1-08-15, 2008-Ohio-3888, ¶15. 

{¶56} Second, because Appellant has remarried she and her new husband have 

many reasons for making Wyoming their home instead of Ohio. The record reflects that 

Attorney Craig Jones is a career prosecutor who has lived in Wyoming for fifteen years 

and is being considered for an appointed judgeship there. Attorney Jones earns 

substantially more in Wyoming than Appellant does in Ohio. Attorney Jones testified that 

he would lose some of his retirement benefits if he quit his job in Wyoming at this time. 

(Tr., p. 267.) Attorney Jones looked for work in Ohio but received no interviews or job 

offers. Thus, it is difficult to credit Appellant’s statements that she has not and will not 

move to Wyoming when her husband is firmly entrenched in a successful career in 

Wyoming and admittedly has no job prospects in Ohio. 

{¶57} All of the facts relied on by the majority are undermined by other facts in the 

record. It is true that Appellant has not purchased a new home in Wyoming, but she and 

her new husband have leased a house there, with an option to buy. They have not 

enrolled her son in a new school, but they have found a new school for her son in 
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Wyoming and Appellant decided not to enroll him for kindergarten in Ohio. Appellant had 

not yet left her job as prosecutor, but it appears that she quit her teaching position as a 

professor at Kent State University. Appellant had been a faculty member since 2005, but 

she testified that she turned down her latest course assignment. (Tr., p. 67.) The fact 

that Appellant does not yet have a new job in Wyoming is explained by the fact that she 

cannot become licensed immediately in Wyoming due to procedural issues in the bar 

application process there. (Tr., pp. 69-71.) Appellant testified that she looked for legal 

work in Wyoming and had a job offer, but it fell through based on her inability to become 

immediately admitted to the bar in Wyoming. Although Appellant currently does not have 

a job in Wyoming, she did testify that it was in her family’s best economic interest to go to 

Wyoming. (Tr., p. 75.) 

{¶58} While Appellant’s testimony contains many factual assertions that could 

have been interpreted by the trial court to mean that she had not fully or substantially 

moved to Wyoming, normally we must presume that the trial court did not believe or rely 

on testimony that contradicts the final judgment of the court. In other words, we 

traditionally leave matters of credibility to the trier of fact. In this case we have more than 

a presumption to rely on, because the trial judge actually states that he did not believe 

some of Appellant’s testimony. For example, on page 7 of the court’s final judgment entry 

it states: “The Court was not convinced * * * that Kyde L. Kelly would be a ‘stay at home’ 

mom as she testified she would be.” (11/6/09 J.E., p. 7.) The court did not find this part 

of Appellant’s testimony to be credible, hence it is not difficult to infer that the trial judge 

may have had credibility issues with other parts of her testimony. 
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{¶59} The majority particularly emphasizes Appellant’s testimony that she would 

not move to Wyoming unless her son was able to come with her. Yet, in a different part 

of the trial transcript, Appellant gave quite a different response to the same question: 

{¶60} “THE COURT: * * * are you telling me that you won’t leave this area if your 

son doesn’t go? 

{¶61} “MRS. KELLY-JONES: No. No. I’m telling you that I’ve been the 

residential parent for my son his whole entire life. I don’t see why there should be any 

change of that status. * * *” (8/26/09 Tr., p. 13.) 

{¶62} It is certainly possible that the trial court discredited Appellant’s assertion 

that she would not complete her move to or stay in Wyoming without her son when she 

herself gave conflicting testimony on the subject. 

{¶63} Appellant also disputes the trial court’s conclusion that the change of 

circumstances was harmful to the child. Appellant contends that there is no basis for this 

conclusion, but the record contains evidence to the contrary. The trial court concluded 

that the 1,300 mile distance between Wyoming and Ohio would “destroy the minor child’s 

life as it was before the move.” (11/6/09 J.E., p. 4.) The court also noted that because 

both parents work, both sets of grandparents are intimately involved in the boy’s life and 

help raise him, and this support would obviously disappear if he moved to Wyoming. The 

court clearly stated that “Nathan has had at least six if not seven, de facto parent figures 

in his life during the past six years” and most of these would disappear if he moved from 

Ohio to Wyoming. (11/6/09 J.E., p. 6.) The loss of the support network was a major part 

of the court’s decision and is fully supported by the record. 
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{¶64} Although the majority likens this case to Campana v. Campana, cited 

earlier, it is much more closely related to DeVall v. Schooley, 5th Dist. No. CT2006-0062, 

2007-Ohio-2582. In DeVall, the mother had been designated as the residential parent. 

She was living in Morgantown, West Virginia, but filed a motion to relocate to King 

George, Virginia. The father subsequently filed a motion to modify parental rights so that 

he would be named as the residential parent. Upon hearing the matter, the court 

determined that the mother had actually remarried, moved some of her furniture to 

Virginia, prepared a furnished bedroom for the child in the new house, enrolled the child 

in school in Virginia for the upcoming fall, and had withdrawn the child from his current 

school in Morgantown. The trial court determined that these factors outweighed the fact 

that the mother had not yet found a new job in Virginia. The trial court found that a 

change in circumstances had taken place and that it was in the child’s best interest for the 

father to become the residential parent. This judgment was upheld on appeal. The Fifth 

District held that “the trial court acted within its discretion in finding that the ‘marriage and 

relocation’ in this matter was a fait accompli * * *.” Id. at ¶16. 

{¶65} As in the DeVall case, we are called up to review a judgment in which the 

trial court found that a change in circumstances had occurred, and there are ample facts 

in the record that support the judgment of the trial court. In both cases, there are many 

facts supporting a change in circumstances beyond the mere filing of an intent to relocate 

or a motion to modify visitation. While there are certainly facts which may lead to a 

contrary determination and from which may have, ourselves, reached a contrary 

determination, we should follow the type of analysis that occurred in DeVall and every 
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other case of this nature and affirm the judgment of the trial court based on the 

substantial evidence in the record supporting that judgment. For all these reasons, I must 

dissent from the opinion reached by the majority.