[Cite as Knauss v. Unverferth, 2020-Ohio-848.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

LACEY MANKIN NKA KNAUSS, 

 CASE NO. 13-19-12 

 PLAINTIFF-APPELLEE, 

 v. 

JOHNATHAN UNVERFERTH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Juvenile Division 

Trial Court No. 20970006 

Judgment Affirmed 

Date of Decision: March 9, 2020 

 

APPEARANCES: 

Kurt A. Dauterman for Appellant 

Drew J. Mihalik for Appellee 

 
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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Johnathan Unverferth (“Unverferth”) brings this 

appeal from the judgment of the Court of Common Pleas of Seneca County, Juvenile 

Division, denying Unverferth’s motion to modify the parental rights and 

responsibilities of the parties. Unverferth claims on appeal that the trial court erred 

by not finding a change of circumstances and by finding the modification to not be 

in the best interests of the child. For the reasons set forth below, the judgment is 

affirmed. 

Factual and Procedural Background

{¶2} In 2007, J.M. was born to Unverferth and plaintiff-appellee Lacey 

Mankin nka Lacey Knauss (“Knauss”). Doc. 91. In 2014, the parties agreed to a 

shared parenting plan. Id. However, on September 28, 2015, that plan was found 

to no longer be in the best interests of the child and was modified to name Knauss 

as the residential parent. Id. and Doc. 92. On August 31, 2017, Unverferth filed a 

motion for contempt alleging that Knauss was not complying with the visitation 

order. Doc. 129. On that same day Unverferth filed a motion to modify custody 

and support requesting that he be named the residential parent. Doc. 133. 

Unverferth claimed that Knauss had engaged in activities designed to undermine his 

relationship with J.M. and in violation of the prior court order. Id. The trial court 

appointed a guardian ad litem (“GAL”) on September 7, 2017. Doc. 135. 
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{¶3} On March 21, 2018, a hearing was held on the contempt motion. Doc. 

179. The parties had reached an agreement in which Knauss admitted to the 

violation of the order. Id. As a consequence, Unverferth was granted additional 

parenting time during the 2018 summer. Id. 

{¶4} The GAL filed his report on July 20, 2018. Doc. 190. In the report, the 

GAL noted that J.M. had lied about some things and as a result, her summer 

parenting time in 2017 did not occur. Id. at 1. The GAL noted that J.M. lied 

frequently about many different things and, as a result, was sent to counseling upon 

the recommendation of the GAL. Id. at 2. The GAL noted that the counseling was 

helping J.M. deal with her struggle to make both parents happy. Id. The GAL also 

noted that both parents attempted to influence J.M.’s opinion of the other, but that 

both were good with her when they focused on J.M. and not the other parent. Id. 

Regarding the home visits, the GAL indicated that Unverferth’s home was 

appropriate and that J.M.’s needs were met. Id. The GAL also indicated that after 

J.M. had spent part of the summer at Unverferth’s house, she was comfortable and 

bonded with her father, stepmother, and half siblings. Id. The GAL noted that 

during one of the visits, Unverferth was not present and J.M. was only there with 

her stepmother, Leann Unverferth (“Leann”). Id. The GAL described J.M. as 

relaxed during that visit. Id. When the GAL mentioned this to J.M., the response 

was that J.M. liked Leann and had no issues with her, which was in sharp contrast 

to the previous summer. Id. at 3. 
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{¶5} The GAL also visited J.M. at Knauss’ home. Id. The GAL noted that 

Knauss’ home was appropriate and J.M.’s needs were met. Id. The GAL found 

J.M. to be happy and very bonded with Knauss during the first visit. Id. However 

during the second visit, J.M. was very emotional and crying. Id. The GAL noted 

the following. 

[J.M.] clearly loves her Mother and is very bonded with her. It 

must be noted at Father’s home without him being there, this 

GAL learned that [J.M.] claims she was told to lie to Children 

Services about her father and was threatened by Mother if that 

didn’t happen. This GAL is unsure what to believe because she 

had never said this before not even at school when she was at a

neutral location. It must be noted though, that both parents 

acknowledge that her lying has improved. If this is true, then this 

causes the GAL concerns. The entire Children Services 

investigation was based on [J.M.] making statements that she 

later recanted. 

This entire case has involved [J.M.] telling lies. Therefore, it is 

very hard for this GAL to know what to believe from [J.M.]. This 

GAL explained to her early on about the boy who cried wolf and 

now here we are in the same situation as the children’s story. 

What can this GAL believe from her. This GAL is certain both 

parents love [J.M.]. This GAL is sure that when the parents focus 

on [J.M.] they are good parents. Further, this GAL believes that 

both environments are safe for [J.M.]. With all that being said, 

this GAL believes that either parent if granted custody will in

front of the child utilize that distinction to show the other and the 

child that they have power. This is evidenced [from] the 

statements made to this GAL and to others the GAL interviewed. 

This is really unfortunate as the only one hurt in this matter is 

[J.M.]. [J.M.] has expressed to this GAL on multiple occasions

that both parents will fight over custody, power, decisions, etc. 

This GAL believes that where [J.M.] is located determines what 

she thinks and how she responds. This is why this GAL believes 

that to have both parents neutralized will be in [J.M.’s] best 

interest. The recommendation is unorthodox and strange but 
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albeit this GAL’s job is to seek the best interest for [J.M.] and the 

Guardian’s plan accomplishes this objective. 

Id. at 3-4. The GAL then recommended that the parties have shared parenting with 

J.M. switching homes every Sunday at 7:00 pm. Id. at 4. The GAL noted that J.M. 

had indicated she wished to live with both parents and wanted the GAL to decide 

for her. Id. According to the GAL, J.M. is “clearly bonded” with both parents, but 

the past history indicated that J.M.’s lying behavior was influenced by Knauss. Id. 

at 4-5. 

{¶6} Hearings were held on the various outstanding motions on July 26, 

September 10, and October 15, 2018.1 Doc. 204. At the hearings, the following 

pertinent evidence was presented. The GAL testified that if the trial court chose not 

to order shared parenting as he recommended in his report, he would recommend 

that Unverferth be named the residential parent. Tr. 8. The GAL spoke with J.M.’s 

prior teacher, the principal and a school aide. Tr. 12. Those people contacted the 

GAL to come speak to them with J.M. present. Id. The issue raised was an 

allegation that Knauss was “deliberately taking the tri-fold homework out of the 

bookbag before it went over to [Unverferth’s] house for the overnight that was set 

up because she was trying to sabotage the relationship between [Unverferth] and 

J.M..” Id. This turned out not to be true and J.M. had been removing the folder 

 

1

 Besides the modification of custody motion, there were outstanding contempt citations filed by both Knauss 

and Unverferth. All were denied. Doc. 200-203. 
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because she did not want to do the homework and had lied about it. Tr. 13. When 

the GAL asked J.M. why she had lied about her stepmother in 2017, she told the 

GAL that Knauss had pushed her to tell the lie. Tr. 14. However, both parents had 

indicated prior to the hearing that J.M. was no longer lying. Tr. 18. The GAL felt 

that counseling was a part of this change. Id. Unverferth requested the counseling, 

but Knauss made the appointment when the GAL presented the idea to her. Id. 

{¶7} In the Spring of 2018, J.M. had lied and said that Unverferth had been 

driving after drinking and Knauss told the GAL about it when a children’s services 

investigation was opened. Tr. 21. The GAL spoke with the investigator and told 

her about J.M.’s habit of lying and the investigator went to Knauss’ home to speak 

with J.M.. Tr. 22. At that time, J.M. admitted that it had not happened. Id. Since 

then, the GAL has seen J.M. develop a strong bond with Unverferth. Tr. 24. 

{¶8} J.M. has struggled in her language arts, science, and math classes. Tr. 

29. Unverferth had mentioned his concern with J.M.’s grades from the beginning 

of the GAL’s involvement with the case. Id. The GAL also testified that 

Unverferth’s home had more structure and that J.M. was very comfortable with 

Leann. Tr. 33. J.M. was very bonded with her father and very comfortable in the 

home. Tr. 33-34. J.M. was also very bonded with her mother. Tr. 48. Right before 

the hearing, J.M. had told her counselor and the GAL separately that she wanted to 

live with her father and attend Cory Rawson schools. Tr. 16. The GAL indicated 

that both homes were appropriate for J.M. and that he had no concerns about 
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Unverferth’s driving while intoxicated conviction from a few years ago because 

everyone he spoke with indicated that Unverferth did not drink any more. Tr. 19. 

J.M.’s answer about where she wants to live has consistently changed throughout 

the case depending on where she is staying, but she is more relaxed at Unverferth’s 

home. Tr. 20. When he last visited at Knauss’ home, J.M. was emotional and cried. 

Tr. 21. 

{¶9} Tecky Rusk (“Rusk”) testified that she is a mental health counselor in 

Findlay and provided services to J.M.. Tr. 51-53. J.M. had been diagnosed with 

adjustment disorder with a mixed disturbance of emotions. Tr. 53. J.M. “was 

overwhelmed and she had behavioral issues, emotional regulation problems.” Tr. 

54. The current treatment plan was developed with the input of both Knauss and 

Unverferth. Tr. 61. Unverferth has indicated that he would like to do family 

counseling involving both parents and step-parents. Tr. 56. At the session 

immediately preceding the hearing, J.M. stated that she wanted “to live with dad 

and go to Cory Rawson.” Tr. 57. She also still wanted to see Knauss. Id. J.M. has 

a strong bond with both parents and did not want to hurt either one, which caused 

her to be tearful in the session while discussing her preferences. Id. 

{¶10} In the June 4 session, J.M. told Rusk that J.M. had lied about 

Unverferth driving drunk while she was in the car and that her “mother had been 

forcing her to make things up about her father to cause problems with the custody 

battle.” Tr. 58. Previously J.M. had told her that Unverferth was driving drunk 
Case No. 13-19-12 

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while J.M. was in the car, which resulted in Rusk reporting it to Children’s Services. 

Tr. 59-60. Rusk testified that she had notified Knauss about the allegation of 

Unverferth driving while intoxicated and Knauss told her that Unverferth had a 

history with drinking. Tr. 63. After J.M. told Rusk she had lied about that incident, 

they discussed how the lying affects relationships and the trust they have. Tr. 60. 

{¶11} Jessica Ottney (“Ottney”) identified Exhibit B as a copy of J.M.’s last 

grade card. Tr. 71. J.M. had perfect attendance, but had issues with math. Tr. 71-

72. At the beginning of the school year, Ottney only had contact with Knauss, then 

started to have contact with both parents. Tr. 72. Her grades in both math and 

science ranged from Ds to a B. Tr. 75-76. They improved over the year. Tr. 76. 

Ottney held a conference with both parents present and it was stressful. Id. Both 

parents then requested that future conferences be held separately. Tr. 77. Ottney 

did not notice any difference in homework completion between the homes. Tr. 84. 

{¶12} Knauss testified as on cross-examination that the prior shared 

parenting agreement was terminated in 2014. Tr. 93. She was not sure how she 

learned that J.M. had been lying about Leann regarding the July 2017 incident. Tr. 

107. J.M. never told Knauss that it was a lie. Tr. 108. Knauss testified that she had 

spoken to J.M. about how the lying was bad. Id. The first indication that J.M. was 

telling “big” lies was the lie about Leann. Tr. 110. Outside of that lie, J.M.’s lies 

were little ones about household chores or completing homework. Tr. 111. Knauss 

only became aware of the lie about the homework being complete when the GAL 
Case No. 13-19-12 

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informed her. Id. Knauss just assumed that J.M. had completed it, but failed to turn 

it in to the teacher. Id. Knauss did not ask J.M. about the missing assignments. Id. 

{¶13} Knauss admitted that although she had a protection order against the 

stepmother which did not include Unverferth, she still withheld visitation. Tr. 109. 

Knauss was unsure whether she ever communicated with Unverferth about the 

denial of the visitations. Id. Knauss admitted that she refused to communicate 

directly with Unverferth about the visits throughout the summer of 2017, not even 

if the message was sent via text or email. Tr. 110. Knauss admitted that J.M. likes 

spending time with her father, but denied that she is close to Leann. Id. Knauss 

also admitted that she “used to” have animosity towards Unverferth and Leann. Tr. 

112. Knauss admitted that J.M. likes her summer visitation with her father and 

Leann, including the trips to Michigan to visit Leann’s family. Tr. 114. Once the 

CPO against Leann was filed, Knauss filed a motion to modify custody to reduce 

Unverferth’s visitation. Tr. 115. The motion was denied at the end of July, but 

Knauss still did not allow any visitation until August 23. Tr. 115-16. Knauss 

admitted that Unverferth was the first to suggest counseling and it was started in 

October of 2017. Tr. 116-17. 

{¶14} Knauss acknowledged that Unverferth had requested his extended 

summer visit to start on July 18, 2017. Tr. 126. Knauss filed the CPO request on 

July 6, 2017. Id. Knauss admitted that although Unverferth had requested visitation 

after the trial court denied her motion to modify visitation, she still refused to allow 
Case No. 13-19-12 

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it. Tr. 129. According to Knauss she told J.M. that if she wanted to live with her 

father, she just needed to tell everybody. Tr. 131. Knauss testified that she was not 

upset about J.M.’s statement to the GAL that she wished to live with Unverferth. 

Tr. 137. Knauss admitted that she did not tell the counselor that J.M.’s lying was a 

big problem that needed to be addressed when counseling started. Tr. 138. Knauss 

also admitted that she shares custody of another child with her ex-husband and they 

change every other week, but has not considered it for J.M.. Tr. 162. Over her five 

years in school, J.M. has attended four different schools. Tr. 167. She is an active 

child who easily makes friends. Id. 

{¶15} On examination by her own counsel, Knauss indicated that her 

preference would be for J.M. to remain in her household and continue school at 

Fostoria. Tr. 140. In addition to J.M., Knauss has an eight year old and twin one 

year olds. Tr. 147. The children are bonded with each other and J.M. is also bonded 

with Knauss’ husband. Tr. 148. Knauss also testified that she facilitates visitation 

between J.M. and her paternal grandmother. Tr. 151. Knauss testified that she 

would like to see J.M. stop lying and wants her to continue with counseling. Tr. 

156. Knauss indicated that she thought J.M. needs a counselor who is “a little bit 

better.” Id. Knauss testified that J.M. was very attached to her friends in the 

community and attends church there. Tr. 157. Knauss believes that as J.M. gets 

older she should be with her mother so they can talk about issues that will arise as 

she gets older. Tr. 158. 
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{¶16} Daniel Vekaryasz (“Daniel”) testified that he is Leann’s father, so J.M. 

would be his step-granddaughter. Daniel testified that he is familiar with J.M. and 

her two half-siblings because they come over to swim in his pool with Unverferth 

and Leann during the summer. Tr. 175-76. From 2014 until 2018, J.M. seemed 

uneasy around the family, but this year she became comfortable. Tr. 177-79. Since 

J.M. was caught lying about Leann, there had been a change in her attitude towards 

Unverferth and Leann. Tr. 183. J.M. is more affectionate and does not hesitate to 

speak to either of them about anything. Id. Additionally, J.M. has opened up to 

Daniel and his wife and they now have a great relationship. Tr. 183-84. 

{¶17} Eileen Vekaryasz (“Eileen”) testified that she is Leann’s mother and 

J.M. is her step-granddaughter. Tr. 186-87. Eileen testified that in 2017, J.M. was 

not happy around her father and would hesitate to answer questions as if she was 

waiting for someone to tell her the answer. Tr. 187. When Eileen would ask J.M. 

what she wanted about anything, such as what she wanted to eat, J.M. would hesitate 

as if waiting for someone to tell her because she did not know. Tr. 187-88. Eileen 

sees J.M. almost every time she is with Unverferth. Tr. 188. J.M. makes friends 

easily and enjoys playing with the other kids around Eileen’s home. Tr. 189. 

Throughout the time Eileen has known J.M., J.M. has told lies. Tr. 190. In the 

summer of 2018, Eileen noticed that J.M. seems happier and more confident, she is 

excited, and appears more comfortable with herself. Id. J.M. appeared to be content 
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when she is at Unverferth’s home. Tr. 191. Also in the last year, Eileen has noticed 

that J.M.’s lying is getting better and J.M. is trying to be honest now. Tr. 194. 

{¶18} Leann testified that she is J.M.’s stepmother. Tr. 203. When she first 

started dating Unverferth in 2013, he and Knauss shared custody of J.M. with them 

switching every week. Tr. 204. At that time, J.M. was a typical child with no issues, 

but over the next couple of years, J.M.’s lying and attitude became progressively 

worse. Tr. 205. She started with lying about simple things and then began lying 

about “major things.” Id. The lying reached its peak in 2017. Tr. 206. At that 

time, J.M. appeared very withdrawn and did not want to participate in the household. 

Id. The worst lie J.M. told was when she told Knauss that Leann had choked her. 

Tr. 207. Knauss then obtained an ex parte CPO against Leann on July 6, 2017, but 

it was subsequently denied on August 9, 2017, after a full hearing. Tr. 208. 

Unverferth’s summer vacation with J.M. was set to begin on July 18, 2017. Tr. 209. 

However, Knauss would not allow Unverferth to see J.M. until late August of 2017. 

Tr. 209-210. When J.M.’s visits resumed, she continued to lie and be withdrawn. 

Tr. 210. J.M. told Leann she had lied to get the CPO soon after the visits resumed. 

Tr. 212. 

{¶19} Since Spring of 2018, J.M. has done a complete “turnaround” and is 

less withdrawn. Tr. 215. J.M. is a much happier child and is now willing to open 

up. Tr. 218. The lying has been reduced and she does not have any behavioral 
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issues. Id. Leann testified that she now has a “really good relationship” with J.M. 

now and that J.M. asks to do things with her. Tr. 219-20. 

{¶20} Unverferth testified that since September of 2017, Knauss does not 

respond to attempts at communication. Tr. 249. Knauss keeps the texts very 

minimal and refuses to meet to discuss being co-parents of J.M.. Id. When 

Unverferth picks up J.M., he is required to park at the end of the driveway, sound 

the horn, and wait for J.M. to come to the car. Tr. 250. Knauss does not come out 

to speak with him. If Unverferth calls Knauss’ phone, J.M. will answer or Knauss 

does not answer it. Tr. 253-54. 

{¶21} Unverferth testified that he has contacted some of J.M.’s doctors only 

to be refused information because he is not listed as the father on her records. Tr. 

254-55. Unverferth identified Exhibit E as a report from J.M.’s eye doctor and the 

report listed the father as Ben Knauss, J.M.’s stepfather. Tr. 258-59. 

{¶22} During the time the CPO was in effect against Leann, Knauss did not 

let J.M. come to visits and refused to allow Unverferth to speak with her on the 

phone. Tr. 264-65. Despite the fact that the trial court denied the CPO at the 

beginning of August 2017, Knauss did not allow visitation to resume until the end 

of August 2017, which was after Unverferth had filed a motion to show cause for 

denial of visitation. Tr. 268-69. After the CPO was denied, Unverferth attempted 

to call and text Knauss about visitation, but received no response. Tr. 269. He also 

went to the house to pick up J.M. on his scheduled visitation days, but she never 
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came out of the home when he sounded the horn. Id. He would wait for “about 30 

minutes” to see if she would come to the car. Id. In addition to sounding the horn, 

he would also send Knauss a text that he was there. Tr. 270. 

{¶23} On September 10, 2017, Unverferth was scheduled to have J.M. for a 

visitation. Tr. 272. Unverferth was the best man in a wedding that day, so he 

arranged with Knauss to switch weekends with the following weekend. Id. When 

he arrived to pick her up on September 17, 2017, J.M. was not allowed to go. Id. 

Similarly for Halloween of 2015, he was supposed to have J.M., but she was not 

permitted to go with him. Tr. 273. Knauss did not allow him the scheduled 

visitation because Fostoria’s Halloween celebration fell on the same day as the one 

in his town. Id. Knauss took this position despite the local Court Rule stating that 

it was his year to have J.M. for Halloween. Id. For Halloween 2017, Knauss was 

again attempting to refuse his visitation, but the GAL became involved and J.M. 

went with Unverferth. Tr. 274. 

{¶24} In February of 2018, J.M. alleged that Unverferth had been drinking 

and then driving her around. Tr. 274-75. Unverferth received a call from Child 

Protective Services, but the claim was eventually dismissed as unsubstantiated. Id. 

Prior to the GAL getting involved, J.M. never brought homework to Unverferth’s 

home. Tr. 275. J.M. said it was because she was not allowed to bring her book bag 

to Unverferth’s home. Tr. 276. During the first quarter of the 2017-2018 school 

year, J.M.’s grades were not very good as she was getting Ds in a few subjects. Tr. 
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278. Unverferth testified that the GAL got involved and Unverferth was given his 

midweek overnight visit which allowed him to help J.M. with her homework. Id. 

After the GAL and Unverferth got involved, J.M.’s grades improved. Tr. 279. 

Unverferth obtained copies of J.M.’s grade cards from her teacher because Knauss 

did not provide them even after he asked. Tr. 280. 

{¶25} Unverferth testified that prior to July 6, 2017, J.M.’s behavior with 

him and Leann was “spotty”, that J.M. “would be involved one day and then kind 

of the next day she wasn’t.” Tr. 288. During summer visitations prior to 2017, the 

visits had been “awesome” and enjoyable. Id. Then he did not have summer 

visitation in 2017 because Knauss filed the CPO. Id. The visits did not resume until 

after the motion to modify parenting was filed. Id. When the visits did resume, 

J.M. was “very timid and just kind of timid.” Tr. 289. J.M. did apologize to 

Unverferth for the lies which led to the CPO being filed. Tr. 267. J.M.’s behavior 

turned around when the GAL became involved and J.M. became like “a different 

person”. Tr. 289. Since September of 2017, Unverferth and J.M. have a “great” 

relationship. Tr. 290. Over the summer Unverferth enrolled J.M. in cheerleading, 

which has six games and practice every Tuesday. Tr. 292. Since school started, 

J.M. has not been able to attend a practice because she is with Knauss on Tuesday. 

Id. Unverferth testified that he asked to switch his Wednesday visitation to Tuesday 

so that he could take J.M. on his time, but Knauss has not responded. Tr. 293. J.M. 

only gets to cheer on the games that occur during his visitation. Id. Unverferth 
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testified that the custody order provides that parents will take children to extra 

curricular activities regardless of when the activity is occurring. Id. According to 

Unverferth, J.M. and her half brothers in his home have a good relationship. Tr. 

294. Since Spring 2018, J.M. has been trying very hard in school and wants to do 

better. Tr. 295 

{¶26} Unverferth testified that if J.M. were to live with him, the worst result 

would be that she would not see Knauss as much. Tr. 295. J.M. has many friends 

around his house and enjoys spending time with them. Tr. 295-96. Unverferth 

testified that he pushed for J.M. to be in counseling for a long time, but Knauss did 

not agree until the GAL became involved. Tr. 296-97. 

{¶27} On cross-examination, Unverferth admitted that he did not know that 

Knauss had blocked him from getting information from the school, just presumed 

such. Tr. 303. However, he testified that he knew that Knauss had listed her 

husband, not him, as J.M.’s father at the doctor’s office. Tr. 304. Unverferth 

admitted that he did not ask Knauss for her consent before enrolling J.M. into 

cheerleading that had practice on Tuesday nights. Id. Unverferth also admitted that 

he had an arrearage in child support due to a change in jobs, but claimed to be 

making it up. Tr. 305. According to Unverferth, Knauss allows him two phone 

calls with J.M. a week and they last five to ten minutes. Tr. 306. When J.M. is with 

him for summer visitation, Knauss gets two phone calls a week for 15 minutes each. 

Tr. 307. Unverferth claimed that Knauss restricts his phone calls with J.M.. Id. 
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When asked what homework Unverferth helped J.M. with, he could only 

specifically recall mathematics. Tr. 309-11. Unverferth admitted that he had not 

received a bill for J.M.’s counseling, but did not know if Knauss was paying for it. 

Tr. 316 

{¶28} During redirect examination, Unverferth testified that Knauss does not 

communicate with him about J.M.’s school work, activities, medical issues, or 

anything else. Tr. 320-21. Unverferth indicated that he has not had a drink in 

approximately three years. Tr. 321. Additionally, he had never been the subject of 

allegations of abuse, neglect, or endangering a child. Tr. 322. As to homework, 

Unverferth indicated that he did not memorize what J.M.’s homework was, but he 

would help her when she had a question. Id. After she completed the homework, 

he would check her work. Tr. 323. 

{¶29} Knauss testified on direct that J.M. had been attending Fostoria 

Intermediate Elementary School. Tr. 342. Although J.M. was having problems 

taking tests, Knauss and the teacher were working with J.M. to improve. Tr. 343. 

Knauss testified that she loved working with J.M. and loved the educational 

program that J.M. attended. Tr. 345. At the school, J.M. has “quite a few friends.” 

Tr. 346. J.M. likes to “hang out” with them and they have “sleep overs” a couple 

times a year. Id. Knauss testified that J.M. is involved in band and cross-country 

at school. Tr. 348. Knauss testified that when she receives the notices of meets, she 

shares them with Unverferth, but he has only come to one meet in three years. Tr. 
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348-49. J.M. has gone to most meets unless Knauss determined that the weather 

was not good for J.M. to be running. Tr. 349. J.M. missed her last meet because 

she was with Unverferth and he did not transport her to the meet. Id. For band, 

J.M. plays the clarinet. Id. Additionally, J.M. participates in the choir at church. 

Tr. 351. J.M. is also hoping to play softball in the spring. Tr. 351-52. She has a 

provisional spot on the team. Tr. 352. 

{¶30} Knauss admitted that she did not permit visitation with Unverferth 

after she obtained the CPO on J.M.’s behalf against Leann. Tr. 353-54. She testified 

that it was her intention to protect J.M.. Tr. 354. Knauss testified that she would 

follow the orders of the court. Tr. 354-55. Knauss indicated that she was happy 

with the local visitation rules and wished to continue as the residential parent. Tr. 

355. Knauss testified that after the GAL became involved, she agreed to give 

Unverferth additional time that was not ordered by the court. Id. According to 

Knauss, Unverferth unilaterally switched the visits back from overnight to just from 

five to nine on Wednesday nights because he could not take J.M. to school the next 

morning. Tr. 356. Knauss testified that J.M. is okay with the visits as they are. Tr. 

357. Additionally, Knauss gives visitation to Cathlene Bugner (“Bugner”), who is 

Unverferth’s mother. Tr. 357. Knauss and Bugner get along, so Knauss is fine with 

her having visitation with J.M.. Id. J.M. seems to enjoy her time with Bugner, so 

Knauss would like it to continue. Tr. 359-60. 
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{¶31} Knauss testified that J.M. routinely sees her doctor, her dentist, an eye 

doctor, and her allergist. Tr. 360-362. The bills are paid by Medicaid. Tr. 362. 

Knauss has no prior convictions for domestic abuse or drug or alcohol abuse. Id. 

J.M. started counseling around August of 2017 and has seen three different 

counselors. Tr. 366. Knauss testified that she did not specifically consent to Rusk 

treating J.M.. Tr. 365-66. Knauss does not wish to continue counseling with Rusk 

and is researching other options. Tr. 367. Knauss testified that she did not feel that 

Rusk was focused on “what J.M. has as far as issues are concerned.” Id. According 

to Knauss, J.M. has issues with stress, anxiety, and lying. Tr. 369. Knauss wants 

the lying to stop and does not believe that Rusk focuses on that. Id. Knauss testified 

that J.M. and her husband have a bond. Tr. 371. There is also a bond between J.M. 

and her brothers. Tr. 372-73. 

{¶32} On cross-examination Knauss testified that Unverferth was not a party 

to the CPO. Tr. 376. She also admitted that she did not speak to Unverferth about 

what happened. Id. Knauss testified that after filing for the CPO, she asked the trial 

court to modify the visitation so that Unverferth would not have any visitation with 

J.M., but the trial court denied that motion. Tr. 377. Despite the trial court’s denial 

of her motion, Knauss still chose to deny visitation as she felt it was necessary to 

protect J.M.. Id. Knauss indicated that at her house, she had not seen any 

improvement in J.M.’s lying. Id. J.M. usually still lies about her room being clean 

or where she left her school laptop. Id. According to Knauss, J.M. began counseling 
Case No. 13-19-12 

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before the GAL became involved, but she relied upon the counselor to notify 

Unverferth. Tr. 381. The first counselor was Marcia and she met with her twice. 

Id. Knauss did not know the second counselor and had never met with that person. 

Id. Knauss has only met Rusk one time. Knauss testified that she has tried to contact 

Rusk two times, but has not heard anything from her. Id. Knauss indicated that she 

only had Rusk’s cell phone number, but no email account. Tr. 381-82. 

{¶33} Knauss testified that J.M.’s homework does not go to Unverferth’s 

home because it is finished before she leaves. Tr. 383. If J.M. does not get it 

finished before she goes, she completes it when she gets back. Id. Knauss admitted 

that she never communicates with Leann about anything, and only communicates 

with Unverferth because she must. Tr. 384. She admitted that she does not tell him 

about unfinished homework or projects when J.M. goes to his home for the 

weekend. Id. Knauss testified that she did not give Unverferth the cross-country 

schedule because she did not have one until they were both emailed it by the coach. 

Tr. 385. Before receiving the schedule from the coach, she did not tell Unverferth 

about meets because she did not have a week’s notice. Tr. 388. Knauss admitted 

that Unverferth sent her the cheerleading schedule for the activity in Rawson and 

admitted that Unverferth attempted to change the weeknight visits to Tuesday as 

J.M. had an activity in Rawson on Tuesday and an activity in Fostoria on 

Wednesday. Tr. 390-91. No switch occurred. Tr. 391. Knauss admitted that she 

did not respond to Unverferth’s request and did not contact him about the activities. 
Case No. 13-19-12 

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Tr. 392. Knauss also admitted that she had never gone to watch J.M. cheer. Tr. 

395. 

{¶34} As to J.M.’s lying, Knauss testified that she could not pinpoint a date 

that J.M. started lying on a regular basis. Tr. 409. “It started out small, her saying 

that her room is not clean or, you know, what little kids do.” Id. The consequence 

of lying was that J.M. would be grounded and lose her electronics. Id. Knauss 

testified that J.M. began lying about her homework in the fall of 2017. Tr. 410. The 

big lie about Leann occurred in July of 2017. Tr. 411. Before the summer of 2017, 

the lying was not as “big” with the lie about Leann being the “biggest one” J.M. had 

ever told. Id. Before then, the lies were only little lies. Tr. 412. Knauss testified 

that even after she found out J.M. had told such a “big lie”, she did not ground J.M. 

or give her any consequence. Id. 

{¶35} Bugner testified that Unverferth is her son. Tr. 415. Bugner described 

J.M. as her sweet granddaughter and said they have a very close relationship. Tr. 

416. When Knauss and Unverferth were together and when they had shared 

parenting, Bugner had unrestricted access to J.M.. Tr. 418. Eventually, though, 

Bugner had to file for visitation with J.M. because Unverferth would not allow her 

visitation during his time. Tr. 419. Bugner testified that Knauss never kept J.M. 

away from her and has encouraged their relationship. Tr. 420. Bugner indicated 

that she sees J.M. at Knauss’ home and J.M. is comfortable there. Tr. 421. 

According to Bugner, Knauss is very truthful and Unverferth is not. Tr. 423, 425. 
Case No. 13-19-12 

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Bugner admitted that she told the GAL that she thought shared parenting was best 

for J.M.. Tr. 432. Bugner also admitted that she has visitation with J.M. during 

Knauss’ time because Knauss agreed to it in a consent entry before the court. Tr. 

433. Bugner indicated that the last time she had spoken to Unverferth or seen him 

with J.M. was in March of 2017. Tr. 434. 

{¶36} In reaching a decision, the magistrate noted that the GAL testified that 

in the two weeks prior to the July hearing date, J.M. had informed him that she 

wished to live with Unverferth. Doc. 204. After reviewing all of the evidence, the 

magistrate determined that there was no change of circumstance that was of 

consequence regarding J.M.’s welfare. Id. The magistrate found that the evidence 

presented that Knauss had coerced J.M. to lie was not credible and there was no 

evidence that J.M. “did not have a penchant for lying in September 28, 2015 when 

the original Order was issued.” Id. The magistrate also noted that the change in 

J.M.’s wishes alone was insufficient to find a change of circumstances. Id. The 

trial court adopted the decision of the magistrate on October 25, 2018, the same day 

it was filed by the magistrate. Doc. 205. On November 6, 2018, Unverferth filed 

his notice of objections to the magistrate’s decision and requested a transcript. Doc. 

206. The objections to the decision were filed on January 29, 2019. Doc. 216. 

Unverferth claimed that the magistrate used the wrong standard of review by 

requiring the change of circumstances to be substantial or significant, not material 

and substantiated. Id. Unverferth noted that Knauss’ denial of visitation was 
Case No. 13-19-12 

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grounds for a change of circumstances. Id. Unverferth argues that even after the 

trial court denied Knauss’ motion to suspend visitation on August 6, 2017, Knauss 

continued to deny Unverferth visits with J.M. until August 23, 2018. Id. Knauss 

filed her response to the objections on February 11, 2019. Doc. 217. On February 

20, 2019, the trial court overruled the objections of Unverferth. Doc. 219. 

Unverferth filed a timely notice of appeal from this judgment and on appeal raises 

the following assignments of error. Doc. 220. 

First Assignment of Error 

The court denied [Unverferth’s] motion for a change of 

circumstances to warrant a modification of custody pursuant to 

[R.C. 3109.04(D)(1)(a)]. 

Second Assignment of Error 

Decision was an abuse of discretion and against the manifest 

weight of the evidence supporting a change of circumstance and a 

change of custody to Father to protect and serve the best interests 

of the minor child. 

Third Assignment of Error 

The benefit from change of custody to Father as residential parent 

exceeds the low likelihood of harm.

Change of Circumstance

{¶37} In the first assignment of error, Unverferth claims that the trial court 

erred by requiring a “significant” change of circumstances rather than one which is 

“substantiated, continuing, and [has] a materially adverse effect upon the child.” 

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159. 
Case No. 13-19-12 

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Modification of a prior decree allocating parental rights is governed by R.C. 

3109.04(E)(1)(a), which provides in pertinent part as follows. 

(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, 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: 

(i) The residential parent agrees to a change in the residential 

parent or both parents under a shared parenting decree agree to

a change in the designation of residential parent. 

(ii) The child, with the consent of the residential parent or of both 

parents under a shared parenting decree, has been integrated into 

the family of the person seeking to become the residential parent. 

(iii) The harm likely to be caused by a change of environment is 

outweighed by the advantages of the change of environment to the 

child. 

“Under R.C. 3109.04, a trial court, in determining whether a modification of a 

decree allocating parental rights and responsibilities is appropriate, must go through 

a two-step analysis.” Southern v Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio1440, ¶ 17. The first step is to determine whether a change in circumstances has 

occurred since the prior decree was issued. Fisher v. Hasenjager, 116 Ohio St.3d 

53, 2007–Ohio–5589, 876 N.E.2d 546, ¶ 33, 36. Such a change must be one of 
Case No. 13-19-12 

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substance and have a material effect on the child. Southern, supra at ¶ 17. This 

does not mean that the change is “substantial” or “quantitatively large”. Brammer 

v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453, (3d Dist.). 

The second step occurs only after the trial court has found a qualifying change of 

circumstances. Southern, supra. at 18. In that case, the trial court then considers 

whether modification of the prior decree is in the best interest of the child. Id. When 

reviewing a ruling pertaining to the allocation of parental rights, an appellate court 

will grant great deference to the decision of the trial court. Id. 

{¶38} Here, Unverferth claims that the trial court used the wrong standard of 

review when the magistrate required the change to be “significant.” The word 

significant does not have a specific legal meaning, but it is commonly defined as 

meaningful or notable. The American Heritage Dictionary 1139 (2d Ed. 1985). 

Some synonyms of significant include “relevant”, “important”, and “material”. 

Since the trial court is required to find that any change is one of substance and has 

a material effect on the child, the use of the word significant, as occurred in this 

case, was not an error. The magistrate did not alter the standard of review, but rather 

just used an equivalent word to express the correct standard of review. For this 

reason, the first assignment of error is overruled. 

Abuse of Discretion and Manifest Weight of the Evidence

{¶39} Unverferth claims in the second assignment of error that the trial 

court’s determination was an abuse of discretion and was against the manifest 
Case No. 13-19-12 

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weight of the evidence. “When a trial court’s decision concerning allocation of 

parental rights and responsibilities is supported by a substantial amount of credible 

and competent evidence, such a decision will not be reversed as being against the 

weight of the evidence by a reviewing court.” Malone v. Malone, 3d Dist. Seneca 

No. 13-10-39, 2011-Ohio-2096, ¶ 32. “The trial court’s discretion in determining 

parental rights must remain within the confines of the relevant statutory provisions.” 

Id. “This court will not substitute its judgment for that of the trier of fact when there 

is evidence in the record to support the trial court's decision.” Clyborn v. Clyborn, 

93 Ohio App.3d 192, 196, 638 N.E.2d 112 (3d Dist. 1994). 

{¶40} In this case, the trial court determined that there was no qualifying 

change of circumstances. Unverferth argues that the evidence shows there was a 

change based upon 1) Knauss’ inconsistent and self-serving testimony, 2) J.M.’s 

lying, 3) the denial of visitation; 4) poor academic performance by J.M., and 5) 

J.M.’s statement that she wished to live with her father. The trial court reviewed 

the findings of the magistrate de novo and the transcript and determined that there 

was not a change of circumstances significant enough to warrant a change of 

custody. Doc. 219. Specifically, the trial court noted that J.M.’s lying was not a 

new factor and was one they knew of at the last hearing. Id. The trial court also 
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found that J.M.’s academic performance was more a result of J.M. than of Knauss.2 

Id. The trial court determined that the denial of visitation was not sufficient to 

justify a change of circumstances. Id. Finally, the trial court noted that the 

magistrate was in a better position to judge credibility, and found “no basis not to 

trust the trier of fact on matters of credibility and demeanor.” Id. Some credible 

evidence was found on each of these issues on both sides of the argument. Since 

there was some credible evidence that supported the trial court’s determination, this 

court cannot substitute its judgment for that of the trial court. For that reason, we 

do not find the trial court’s judgment to be an abuse of discretion or against the 

manifest weight of the evidence. The second assignment of error is overruled. 

Best Interest of the Child

{¶41} Finally, Unverferth claims that the trial court should have found that 

the benefit of a change of custody exceeded the low likelihood of harm. To reach 

this argument, the trial court would have first made a preliminary finding of a 

change of circumstances per R.C. 3109.04(E)(1)(a). Vent v. Vent, 3d Dist. Wyandot 

No. 16-12-05, 2012-Ohio-5946, ¶ 31. “Having affirmed the trial court’s threshold 

decision finding no change in circumstances, there is no need to examine whether 

 

2

 Although the statute does provide that a change in the circumstances of the child may be the basis for finding 

a change of circumstance, the change must still be a material change. The trial court did not find that Jordyn’s 

struggles in school were a material change. 
Case No. 13-19-12 

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or not a change of custody would be in the [child’s] best interests.” Id. Thus, the 

third assignment of error is overruled. 

{¶42} Having found no prejudicial error in the particulars assigned and 

argued, the judgment of the Court of Common Pleas of Seneca County, Juvenile 

Division, is affirmed. 

Judgment Affirmed 

SHAW, P.J. and PRESTON, J., concur. 

/hls