[Cite as S.S. v. F.M., 2020-Ohio-3827.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

S.S. Court of Appeals No. L-19-1216 

 

 Appellant Trial Court No. JC 16254109 

v. 

F.M. DECISION AND JUDGMENT

Appellee Decided: July 24, 2020 

* * * * * 

 Angelina Wagner, for appellant. 

 Rebecca E. Shope, for appellee. 

* * * * * 

ZMUDA, P.J. 

I. Introduction 

{¶ 1} Appellant, S.S., appeals the judgment of the Lucas County Court of 

Common Pleas, Juvenile Division, vacating the magistrate’s decision issued in this child 

custody matter after finding well-taken the objections to the magistrate’s decision that 

were filed by appellee, F.M. Finding no error in the trial court’s determination that a 
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change of circumstances has not occurred in this case, and thus a modification of the 

preexisting custody arrangement is unwarranted, we affirm. 

A. Facts and Procedural Background 

{¶ 2} This matter originated on March 14, 2016, when appellant filed his 

complaint seeking the allocation of parental rights and responsibilities over his son, C.S. 

After the parties reached an agreement as to the issues raised in appellant’s complaint, the 

court issued its November 15, 2016 judgment entry approving the parties’ agreement and 

setting forth the parental rights and responsibilities embodied therein. Under the court’s 

entry, appellee remained C.S.’s primary residential parent and legal custodian, and 

appellant was awarded parenting time according to the Court Schedule that was attached 

to the court’s entry as an exhibit. 

{¶ 3} On May 25, 2018, appellant filed a motion to modify the court’s prior award 

of custody of his son, C.S. In his motion, appellant sought custody of C.S., based upon a 

substantial change in circumstances since the court issued its November 15, 2016 

judgment entry, namely that appellee was homeless, unemployed, abusing drugs, and 

neglecting C.S. Four days later, on May 29, 2018, appellee also filed a motion to modify 

the court’s prior custody award. In her motion, appellee asserted that appellant had 

“taken custody of the child, * * * and will not let me see or talk to him.” 

{¶ 4} After the parties filed their respective motions, the juvenile court set the 

matter for an emergency hearing. On May 30, 2018, the hearing was conducted, 
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culminating in the court’s order continuing the matter for an expedited hearing and 

naming appellant the residential parent with visitation of C.S. awarded to appellee. 

{¶ 5} On June 4, 2018, the parties appeared before the juvenile court for an 

expedited hearing on their motions. At the hearing, the parties agreed as to interim 

orders, and the court found that C.S.’s best interests were served by an award of 

temporary custody to appellant with supervised visitation awarded to appellee. At a 

subsequent hearing on August 30, 2018, the court modified its order, granting appellee 

unsupervised parenting time. 

{¶ 6} On January 10, 2019, appellee filed a motion for contempt, in which she 

asserted that appellant had violated the court’s orders concerning her visitation rights 

with C.S. by denying her access to C.S. “on multiple dates in December 2018 and 

January 2019 during [her] scheduled parenting time and during the minor child’s winter 

break.” In order to make up for her lost visitation time due to appellant’s alleged 

interference, appellee requested additional visitation time with C.S. A decision on 

appellee’s motion for contempt is not discernable from the record. 

{¶ 7} On April 22, 2019, this matter proceeded to trial before a magistrate. At the 

trial, appellant testified that the concerns that prompted his motion were resolved “in 

moderation.” Appellant went on to voice concerns regarding appellee. Specifically, 

appellant testified that, to his knowledge, appellee was unemployed and thus would be 

unable to support C.S. Appellant acknowledged that appellee could provide safe housing 

for C.S. However, appellant took issue with the school that C.S. would attend were he to 
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live with appellee, Ottawa River Elementary, because he believes C.S.’s cousins, who 

also attend Ottawa River Elementary, would be a distraction to C.S. 

{¶ 8} As to the custody arrangement set forth in the juvenile court’s November 15, 

2016 entry, appellant testified that C.S. was not doing well with splitting his time 

between appellant and appellee throughout the week. According to appellant, C.S. “gets 

so worked up, and it’s so hard to get him unworked up” when transferring him from one 

parent to another parent. Appellant went on to explain that C.S. usually calms down as 

soon as appellee walks away from the exchange. 

{¶ 9} On cross-examination, appellant explained that his indication of appellee’s 

alleged homelessness was due to the fact that he was unaware of appellee’s living 

arrangements at the time he filed his motion. Appellant acknowledged that appellee was 

currently living with her parents at the time of trial, and thus was not homeless. 

{¶ 10} In response to appellant’s claim that appellee was abusing drugs, appellee’s 

counsel asked appellant about the results of drug screens that he submitted during the 

pendency of these proceedings. Appellant admitted that he tested positive for marijuana. 

Further, appellant acknowledged that he had never observed appellee using drugs in front 

of C.S. 

{¶ 11} After appellant finished testifying, he called his wife, K.S., to the stand. 

During her testimony, K.S. stated her belief that appellant should be granted custody of 

C.S. K.S.’s position was based upon the fact that appellant was employed, had his own 

home, and lived in a school district that was “more beneficial to [C.S.] at this point.” On 
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cross-examination, K.S. acknowledged that she was not involved with C.S.’s prior 

schooling and therefore could not fairly compare C.S.’s performance in appellee’s school 

district to his performance in appellant’s school district. 

{¶ 12} Following K.S.’s testimony, appellant called N.P. to the stand. N.P. is the 

father of appellee’s children, with the exception of C.S. Like appellant, N.P. filed a 

motion seeking an award of custody of his children in May 2018. Ultimately, appellee 

and N.P. reached an agreement that left appellee’s custody of the children intact and 

increased N.P.’s visitation time, thereby resolving the issues that gave rise to N.P.’s filing 

of his motion. Despite the agreement, N.P. testified that he was not permitted to see his 

children due to a molestation complaint that was filed with children’s services. 

{¶ 13} For his fourth and final witness, appellant called his mother, K.H. K.H. 

testified that there was a one-year period of time during which appellee did not permit her 

to see C.S., having revoked such permission after K.H. took C.S. to see appellant prior to 

appellant undergoing surgery. According to K.H., she helped appellant file his request 

for visitation so that she could continue to see C.S. 

{¶ 14} At the conclusion of K.H.’s testimony, appellant rested. Thereafter, 

appellee took the stand. Appellee testified as to the allegations raised by appellant 

concerning her alleged homelessness, drug abuse, and lack of employment. 

{¶ 15} As to housing, appellee insisted that she has never been homeless, and she 

stated that she and C.S. currently reside at her parents’ home. In terms of the schooling 

issue appellant raised in his testimony regarding C.S.’s attendance at Ottawa River 
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Elementary, appellee stated that C.S. was “thriving” and C.S.’s teacher reported that 

C.S.’s cousins had a positive impact on his educational development. 

{¶ 16} Turning to appellant’s allegation of drug abuse, appellee testified that she 

has never used drugs in front of C.S. Appellee acknowledged that she submitted two 

diluted drug screens during the pendency of this case, but noted that her most recent drug 

screen was negative while appellant’s most recent drug screen was positive for 

marijuana. Appellee further committed to remaining drug-free moving forward. 

{¶ 17} Later on in appellee’s testimony, she admitted that she was presently 

unemployed. Nonetheless, appellee stated that her unemployment would not impact her 

ability to care for C.S. 

{¶ 18} Following appellee’s testimony, C.S.’s guardian ad litem, Michael Bryant, 

was called to the stand. In his report submitted to the trial court in this case, Bryant 

suggested that the court designate appellee the residential parent and award appellant 

parenting time according to the court’s local schedule. 

{¶ 19} At trial, Bryant testified as to the concerns raised by appellant in his 

motion. Bryant discussed the concerns with appellant, and learned that appellant was 

primarily troubled that appellee was not spending as much time with C.S. as she 

suggested. Bryant stated that appellant “made it clear that he didn’t think that [appellee] 

was a bad mom, that * * * she never did anything * * * to neglect [C.S.] or * * * harm 

him or anything like that.” Bryant also testified as to his discussions with C.S., noting 

that C.S. “made it clear that he * * * wanted to spend more time with mom. He loves 
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dad, wants to be with dad, * * * but he enjoys being with mom. Mom makes him feel 

more comfortable, he’s more comfortable at mom’s house.” 

{¶ 20} As her final witness, appellee called her mother, M.M., who corroborated 

appellee’s testimony that she has never been homeless. According to M.M., appellee has 

been living with her since moving out of N.P.’s home in May 2018. M.M. further stated 

that she has never observed appellee using drugs. 

{¶ 21} At the conclusion of M.M.’s testimony, the magistrate took the matter 

under advisement. Ultimately, the magistrate determined that a change of circumstances 

had taken place, justifying the modification of the preexisting custodial arrangement. In 

a decision journalized on May 7, 2019, the magistrate named appellant the residential 

parent of C.S., and granted appellee visitation “on an alternating week basis.” 

{¶ 22} On May 21, 2019, appellee filed objections to the magistrate’s decision, 

arguing that the magistrate erred by ignoring the guardian ad litem’s recommendation 

that she remain C.S.’s residential parent. 

{¶ 23} On September 12, 2019, the juvenile court issued its decision on appellee’s 

objections. In its decision, the court found that “the issues giving rise to the instant action 

(i.e., [appellant] alleging [appellee] is homeless, unemployed, abuses drugs and neglects 

the minor child; and, [appellee] alleging [appellant] is refusing visits with minor child) 

now appear to be resolved.” Consequently, the court went on to state that “there has not 

been a change of circumstances in the life of the custodian or the minor child that 
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would warrant a modification of custody at this time,” and found appellee’s objections 

well-taken. The result of the trial court’s decision was a dismissal of the parties’ motions 

to modify the allocation of parental rights and responsibilities, and a reversion “to the 

November 15, 2016 Judgement Entry, wherein the parties agreed [appellee] would be 

named residential parent and legal custodian.” 

{¶ 24} Following the trial court’s decision reversing the magistrate’s decision, 

appellant filed his timely notice of appeal. 

B. Assignments of Error 

{¶ 25} On appeal, appellant assigns the following assignments of error for our 

review: 

1. The Court’s determination that there was not a change in 

circumstances as required under R.C. 3109.04 to support a grant of Legal 

Custody to the Father was against the manifest weight of the evidence. 

2. The Court’s reversal of the Magistrate’s decision was an abuse of 

discretion. 

Because appellant’s assignments of error are interrelated, we will address them 

simultaneously. 

II. Analysis 

{¶ 26} In appellant’s assignments of error, he contends that the trial court erred in 

reversing the magistrate’s decision and retaining appellee’s status as residential parent of 

C.S. 
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{¶ 27} To justify a change of custody pursuant to R.C. 3109.04(E), the court must 

find that there has been a change of circumstances for the child, the child’s parent or 

parents, and that modification of parental rights and responsibilities is in the child’s best 

interests. Davis v. Flickinger, 77 Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997). In 

determining whether such a change is sufficient to warrant a custody change, the court 

must be afforded wide latitude. Id. at paragraphs one and two of the syllabus. 

{¶ 28} “A finding of a change of circumstances should not be disturbed absent an 

abuse of discretion.” L.W. v. L.B., 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 52. 

Moreover, we review the juvenile court’s decision reversing the magistrate’s decision for 

an abuse of discretion. See In re L.M.L., 11th Dist. Portage No. 2016-P-0069, 2017-

Ohio-7451, ¶ 20, quoting In re Wiley, 11th Dist. Portage No. 2008-P-0062, 2009-Ohio290, ¶ 20 (“‘In reviewing a trial court’s decision to adopt or reject a magistrate’s 

decision, an appellate court looks for abuse of discretion.’”). An abuse of discretion 

connotes that the court’s attitude was arbitrary, unreasonable or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶ 29} In its September 12, 2019 judgment entry, the trial court found that 

appellee had resolved the issues that prompted appellant to seek custody of C.S., namely 

that appellee was homeless, unemployed, abusing drugs, and neglecting C.S. 

Consequently, the trial court found that there was not a change of circumstances 

warranting a change in the custodial arrangement set forth in the court’s November 15, 

2016 entry. 
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{¶ 30} Our review of the record in this case supports the trial court’s finding of a 

lack of a change of circumstances. Indeed, by the time of trial, appellant acknowledged 

that his concerns were mostly resolved. Although appellee was unemployed, she 

insisted, and appellant admitted, that she could provide safe housing for C.S. Further, 

appellee had recently submitted a clean drug screen and M.M. testified that she had never 

observed appellee abusing drugs. Appellant voiced concerns with C.S.’s education, but 

there was substantial testimony presented by appellee to establish that C.S. was 

progressing well at Ottawa River Elementary. As to appellant’s allegation that appellee 

was neglectful in her parenting of C.S., appellant admitted to Bryant that appellee “never 

did anything * * * to neglect [C.S.].” 

{¶ 31} Given the record before us, we find that the trial court did not abuse its 

discretion when it found that appellant failed to establish a change of circumstances that 

would justify a modification of custody in this case. Absent a change of circumstances, 

the trial court properly reversed the magistrate’s decision modifying the preexisting 

custodial arrangement between the parties. 

{¶ 32} Accordingly, we find appellant’s assignments of error not well-taken. 

III. Conclusion 

{¶ 33} For the foregoing reasons, the judgment of the Lucas County Court of 

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of 

this appeal pursuant to App.R. 24. 

Judgment affirmed. 
11. 

 S.S. v. F.M. 

 C.A. No. L-19-1216 

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

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

Thomas J. Osowik, J. _______________________________ 

JUDGE 

Christine E. Mayle, J. 

 _______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

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

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

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

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