[Cite as Barton v. Porter, 2017-Ohio-1134.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CONNIE L. BARTON, 

 PLAINTIFF-APPELLANT, 

V. 

PATRICK SHAWN PORTER, 

 DEFENDANT-APPELLEE. 

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CASE NO. 16 BE 0016 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas, Juvenile Division of Belmont 

County, Ohio 

Case No. 09 JH 688 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellant Attorney Michael J. Shaheen 

128 S. Marietta Street 

P.O. Box 579 

St. Clairsville, Ohio 43950 

For Defendant-Appellee Attorney Rebecca Bench 

23 Driggs Lane 

Bridgeport, Ohio 43912 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: March 23, 2017 
[Cite as Barton v. Porter, 2017-Ohio-1134.]

DONOFRIO, P.J. 

{¶1} Appellant, Connie B., appeals from a Belmont County Juvenile Court 

judgment naming appellee, Patrick P., as the residential parent of the parties’ minor 

daughter. 

{¶2} C.P. was born to appellant on December 28, 2005. Two years later, it 

was determined that appellee was C.P.’s father. From that time on, appellee was 

active in C.P.’s life. 

{¶3} In 2009, appellant filed a complaint for child support. The court ordered 

appellee to pay support in an amount to be determined by the Belmont County 

Department of Job and Family Services. On January 8, 2010, the court put on an 

order establishing the amount of support. Appellant subsequently waived any 

arrearages owed by appellee and informed the Child Support Enforcement Agency 

that she no longer required their services, in effect waiving child support. 

{¶4} The parties cooperated in parenting C.P. without any court orders for 

many years. During this time, appellant resided in Belmont County and appellee 

resided in nearby West Virginia. C.P. lived with appellant and generally spent two to 

three days a week with appellee. 

{¶5} In May 2015, appellee learned that appellant was planning on moving 

to Florida with her fiancé and C.P. Upon learning about appellant’s planned move, 

appellee filed an action in West Virginia to stop appellant’s relocation. It was 

determined that Ohio, not West Virginia had jurisdiction of this matter. 

{¶6} On June 8, 2015, appellant filed a petition in the trial court to establish 

child support. Two days later appellee filed a motion in the trial court to prohibit 

appellant from relocating to Florida with C.P. He also filed a petition to establish 

parental rights and responsibilities. In the motion appellee stated the parties had 

always cooperated as to parenting C.P. so there had been no need for a court order. 

But he recently learned that appellant was planning to move to Florida with her fiancé 

and to take C.P. with them. Appellee requested temporary and permanent custody of 

C.P. or, in the alternative, shared parenting. The trial court entered temporary orders 

setting up a visitation schedule. Appellant subsequently filed a formal notice of her 
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intent to relocate to Florida. 

{¶7} A magistrate held a hearing on appellee’s motion to establish parental 

rights and responsibilities and appellant’s notice of intent to relocate. The magistrate 

heard testimony from both parties and several other witnesses and interviewed C.P. 

She then entered detailed findings of fact and conclusions of law. She concluded it 

was in C.P.’s best interest to name appellee as her residential parent. The 

magistrate also set a visitation schedule. Additionally, the magistrate sustained 

appellant’s motion for child support effective for one month from July 1, 2015, through 

August 1, 2015. 

{¶8} Appellant filed objections to the magistrate’s decision. She asserted 

the magistrate’s decision was against the weight of the evidence, the court should 

have appointed a guardian ad litem for C.P., the discovery deadline precluded certain 

issues from being raised, the child support order was improper, the parties did not 

waive any potential conflict in writing, and the court erred in finding this to be an 

allocation of parental rights and responsibilities as opposed to a reallocation. 

{¶9} The trial court overruled appellant’s objections and entered a judgment 

making the magistrate’s decision the order of the court. 

{¶10} Appellant filed a timely notice of appeal on April 15, 2016. She now 

raises three assignments of error. 

{¶11} Appellant’s first assignment of error states: 

THE TRIAL COURT ERRED BY CHARACTERIZING THE CASE 

AS AN “ALLOCATION OF PARENTAL RIGHTS AND 

RESPONSIBILITIES” AS OPPOSED TO A “REALLOCATION OF 

PARENTAL RIGHTS AND RESPONSIBILITIES” AND THEREBY 

FAILED TO CONSIDER THE FACTORS REQUIRED BY R.C. 3109.04. 

{¶12} Appellant asserts that by operation of statute, she was C.P.’s sole 

residential parent at the time of her birth. Additionally, she claims that the trial court 

confirmed she was C.P.’s legal custodian in a January 6, 2010 judgment entry 
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dealing with child support. Because appellant argues she was established as the 

residential parent, she contends the trial court erred in finding this was an initial 

allocation of parental rights as opposed to a reallocation. She points out that in 

making an initial allocation of parental rights, the court need only apply the best 

interest test. On the other hand, in making a reallocation of parental rights, the court 

must first find a change in circumstances and also find a modification is in the child’s 

best interest. Thus, appellant argues the trial court in this case was required to, and 

failed to, find a change in circumstances before moving on to consider the best 

interest of the child. 

{¶13} Pursuant to R.C. 3109.042(A), “[a]n unmarried female who gives birth 

to a child is the sole residential parent and legal custodian of the child until a court of 

competent jurisdiction issues an order designating another person as the residential 

parent and legal custodian.” Thus, by operation of statute, appellant was C.P.’s sole 

residential parent and legal custodian from the time of her birth. 

{¶14} Appellant claims the court made a custody ruling in 2010, when it 

entered a child support order. But case law indicates otherwise. 

{¶15} In In re B.J.M., 7th Dist. No. 12 JE 12, 2013-Ohio-2505, mother and 

father were never married. In an administrative paternity determination, father was 

identified as the natural father and ordered to pay child support. No visitation 

schedule or parenting agreement was ever put in place. The child resided with 

mother but both parents were actively involved in the child’s life. After mother 

married, father learned she planned to move to Virginia with her husband and the 

child. Father filed a motion to allocate custody and prevent mother from relocating 

with the child. The trial court granted custody to father and set a visitation schedule. 

Mother appealed. 

{¶16} On appeal, we noted that the parties conceded there had been no prior 

custody decree and mother was the sole custodial parent by operation of statute. Id.

at ¶ 10. We then noted that because this was an initial custody determination, as 

opposed to a reallocation, the trial court was not required to find a change in 
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circumstances but was only required to apply the best interest test. Id. 

{¶17} Similarly, in In re S.S.L.S., 7th Dist. No. 12 CO 8, 2013-Ohio-3026, 

mother and father were never married. Mother was the sole custodian of the child by 

operation of statute. The case was first brought to juvenile court by the Child Support 

Enforcement Agency, seeking acknowledgement of its administrative paternity 

finding. The court adopted the paternity determination and child support and ordered 

father to pay child support to mother. On father's motion, the court granted him 

companionship with the child. Approximately five months later, father filed a motion 

for reallocation of parental rights requesting the court grant him custody of the child. 

The trial court denied father’s motion and he appealed. 

{¶18} On appeal, we pointed out that the trial court was unclear as to whether 

it applied the best interest test for initial custody determinations or the change of 

circumstance/best interest test for custody modifications. Id. at ¶ 13-14. We found 

that the change in circumstances/best interest test was not applicable. Id. at ¶ 15. 

We noted the parents had never been married and there had been no prior 

adjudication or dispute between the parents regarding custody. Id. We pointed out 

that mother was the sole custodian simply by operation of statute. Id. We then 

found the case presented an original custody determination, not a modification, and 

therefore the best interest test applied. Id. at ¶ 16. Because it was unclear if the trial 

court applied the correct test, we reversed the trial court’s judgment and remanded 

with instruction for a redetermination of custody under the correct test. Id. at ¶ 32. 

{¶19} Thus, in cases factually similar to the case at bar, this court has found 

the facts to dictate an initial allocation of custody, which requires application of the 

best interest test, as opposed to a reallocation, which requires application of the 

change in circumstances/best interest test. There is no reason to treat this case any 

differently. 

{¶20} Moreover, it is significant to point out that in a motion to set aside a 

judgment entry filed June 24, 2015, appellant stated: 

Father has never sought parenting time with the child in a court of this 
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State, and NO PARENTING ORDER HAS EVER BEEN PUT INTO 

PLACE WHICH TRIGGERS ANY PARENTING SCHEDULE MUCH 

LESS TRIGGER THE NOTICE OF RELOCATION PROVISIONS. 

(Emphasis sic.) 

{¶21} And in appellant’s response to a motion to adopt foreign ex parte order 

and response to a motion to prohibit relocation of minor child filed June 25, 2015, 

appellant similarly stated: 

 NO PARENTING ORDER HAS EVER BEEN PUT INTO PLACE 

WHICH TRIGGERS ANY PARENTING SCHEDULE MUCH LESS 

TRIGGERS THE NOTICE OF RELOCATION PROVISIONS or ANY 

LEGAL BASIS TO PREVENT MOTHER FROM MOVING ANYWHERE 

SHE SO DESIRES. 

(Emphasis sic.) 

{¶22} These statements in her motions contradict appellant’s current position 

on appeal. 

{¶23} In sum, the trial court properly treated this case as an initial allocation of 

parental rights and responsibilities. 

{¶24} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶25} Appellant’s second assignment of error states: 

THE TRIAL COURT ABUSED ITS DISCRETION AND 

COMMITTED REVERSIBLE ERROR. 

{¶26} Appellant raises four arguments in this assignment of error. 

{¶27} First, appellant argues the trial court’s decision was against the weight 

of the evidence. She contends the court failed to give proper weight to the statutory 

factors. Appellant makes several specific arguments regarding this issue that we will 
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address in context below. 

{¶28} We will not reverse a trial court's decision regarding the custody of a 

child which is supported by competent and credible evidence. Bechtol v. Bechtol, 49 

Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus; Rohrbaugh v. Rohrbaugh, 136 Ohio 

App.3d 599, 603, 737 N.E.2d 551 (7th Dist.2000). The trial court’s discretion should 

be accorded the utmost respect by a reviewing court in light of the gravity of the 

proceedings and the impact that a custody determination has on the parties involved. 

Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). An abuse of discretion 

connotes an attitude on the part of the court that is arbitrary, unreasonable, or 

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

(1983). 

{¶29} In determining the child’s best interest either on an original decree 

allocating parental rights and responsibilities or on a modification of such a decree, 

the court shall consider all relevant factors, including, but not limited to: 

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

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

division (B) of this section regarding the child's wishes and concerns as 

to the allocation of parental rights and responsibilities concerning the 

child, the wishes and concerns of the child, as expressed to the court; 

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

parents, siblings, and any other person who may significantly affect the 

child's best interest; 

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

community; 

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

situation; 

(f) The parent more likely to honor and facilitate court-approved 

parenting time rights or visitation and companionship rights; 

(g) Whether either parent has failed to make all child support 
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payments, including all arrearages, that are required of that parent 

pursuant to a child support order under which that parent is an obligor; 

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

either parent previously has [ever been convicted of certain offenses or 

had a child adjudicated abused or neglected]; 

(i) Whether the residential parent or one of the parents subject to 

a shared parenting decree has continuously and willfully denied the 

other parent's right to parenting time in accordance with an order of the 

court; 

(j) Whether either parent has established a residence, or is 

planning to establish a residence, outside this state. 

R.C. 3109.04(F)(1). 

{¶30} The trial court made numerous findings as to the statutory factors in 

rendering its decision as follows. 

{¶31} Appellee seeks to be named C.P.’s residential parent, or in the 

alternative, seeks shared parenting. Appellant is opposed to both. (R.C. 

3109.04(F)(1)(a)). 

{¶32} The court interviewed C.P. in chambers. She expressed her desire to 

move to Florida with appellant. Although C.P. was able to express her desires, the 

court gave little weight to them because it questioned whether she truly understood 

the difference between visiting Florida and living in Florida. The court noted that her 

desire to move to Florida was based on starting a new school, seeing dolphins, going 

to the aquarium, and attending Taylor Swift and Carrie Underwood concerts. (R.C. 

3109.04(F)(1)(b)). 

{¶33} C.P. has a good relationship with both appellant and appellee. 

Appellant has been her primary caregiver. Appellee’s contact has been more limited. 

C.P. has four-month-old twin sisters, whom she loves, and is also close to her sixyear-old nephew. Appellant’s fiancé is very involved with C.P. and they have a close 

relationship. (R.C. 3109.04(F)(1)(c)). 
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{¶34} C.P. is well-adjusted to her home, school, and community. She has 

always attended the same school. She participates in girl scouts and guitar lessons. 

She attends church regularly with appellee. (R.C. 3109.04(F)(1)(d)). 

{¶35} No evidence was presented as to C.P.’s or appellee’s health. Appellant 

is fully recovered from a difficult pregnancy. Appellant’s fiancé described his health 

as “bad,” as he has suffered through cancer and a serious car accident that resulted 

in brain damage that leaves him forgetful. (R.C. 3109.04(F)(1)(e)). 

{¶36} Both parents are likely to honor and facilitate visitation. Until June 

2015, the parties worked out visitation without a court order. (R.C. 3109.04(F)(1)(f)). 

{¶37} There was no child support order in effect at the time of the hearing. 

(R.C. 3109.04(F)(1)(g)). 

{¶38} Neither parent has been convicted of any offense involving a child or 

domestic violence. Appellant’s fiancé was convicted of domestic violence and 

attempted interference with custody over ten years ago. (R.C. 3109.04(F)(1)(h)). 

{¶39} Neither parent has willfully denied the other court-ordered parenting 

time. But there has never been a court-ordered visitation schedule. (R.C. 

3109.04(F)(1)(i)). 

{¶40} Appellant has filed an intent to relocate to West Chapel, Florida with 

C.P. They would live in her fiancé’s home. Appellant has no family in Florida, has 

never lived in Florida, and is not moving for employment purposes. Appellant claims 

a move to Florida would not interfere with C.P.’s relationship with appellee, but 

appellant’s actions do not support her claim. Appellant’s fiancé took C.P. to Florida 

to buy a house before appellant told appellee she was moving. Appellant took C.P. 

to tour her new school while this matter was pending and has built up C.P.’s 

excitement about moving. Appellant has proposed multiple visits but appellee does 

not have the resources to make multiple yearly trips to Florida. (R.C. 

3109.04(F)(1)(j)). 

{¶41} In addition to the above best interest factors, the court took several 

other factors into consideration. It found that C.P. would start a new school 
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regardless of who it named her residential parent. Additionally, C.P.’s closest 

relative, other than her parents, is her nephew who is moving to Dublin, Ohio. 

Moreover, appellee has given thought as to issues he and C.P. may face if he is 

named residential parent and is prepared to seek counseling for C.P. if needed. 

Finally, the court considered appellant’s testimony that she will not leave if C.P. 

cannot move to Florida with her. 

{¶42} The evidence was as follows. 

{¶43} Appellee testified that he began taking part in C.P.’s life in 2007, when 

a paternity test established that he was her father. (Tr. 15). When C.P. was two and 

three years old, appellee and appellant worked different shifts and appellee watched 

C.P. four days a week while appellant was at work. (Tr. 15-16). When appellee got a 

new job and his schedule changed, he and appellant worked out a schedule of 

visitation. (Tr. 16-17). He picked C.P. up from preschool and kept her until appellant 

was done working. (Tr. 18). Appellee testified that he and appellant had no 

communication problems at that time and he even took C.P. on vacation. (Tr. 22). 

From 2012 to 2013, appellee stated that he picked C.P. up either from school or 

appellant’s house three days a week to visit with her. (Tr. 24). Appellee stated that 

he regularly picked C.P. up from school and took her to guitar lessons, the park, the 

movies, or just stayed at his house. (Tr. 27). They also attend church together every 

Sunday. (Tr. 66). In 2015, appellant had a difficult pregnancy with twins. (Tr. 30). 

During this time, appellee became even more involved in caring for C.P. (Tr. 30-31). 

He took her to school, picked her up, and did homework with her. (Tr. 31-33). 

Appellee’s girlfriend also helped C.P. with reading and homework. (Tr. 33). 

{¶44} Appellee stated he has lived in the same house for four years and has 

been at the same job for ten years. (Tr. 55). His girlfriend Randi has resided with 

him for the past two-and-a half years and she gets along well with C.P. (Tr. 28). He 

stated that if the court granted him custody, he would be able to financially support 

C.P. (Tr. 55). 

{¶45} Appellee testified that there were no problems until May 2015, when 
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appellant told him that C.P. was in Florida with appellant’s fiancé Don looking at 

houses and going to Disney World. (Tr. 34). Appellee testified that he was shocked 

by this news. (Tr. 34). He further testified he was upset appellant let Don take C.P. 

by himself to Florida and that appellant would not even tell him Don’s last name. (Tr. 

38). Appellee stated he became concerned after learning that Don had convictions 

for interference with custody and vehicular manslaughter. (Tr. 63-64). 

{¶46} Appellee testified that if the court granted his motion, he would assure 

that C.P. was happy and safe. (Tr. 60). He stated he would get her a counselor if 

she needed to talk to someone about her feelings. (Tr. 60). Appellee testified he 

believed it was in C.P.’s best interest to stay in Ohio or West Virginia. (Tr. 66). 

{¶47} On cross-examination, appellee testified about child support. In 2009, a 

child support case was initiated. (Tr. 17). But appellee admitted he has never paid 

child support. (Tr. 71). He stated that appellant agreed he did not have to pay 

support as long as he kept C.P. on his insurance. (Tr. 70). Appellee also admitted 

that appellant has been C.P.’s primary caregiver. (Tr. 75). And appellee stated that 

he has 13 dogs at his house. (Tr. 89). He admitted there was an incident once 

where C.P. got a flea in her socks. (Tr. 91). 

{¶48} Appellant’s fiancé Don testified next. Don stated that but for one breakup, he and appellant have been in a relationship for six years. (Tr. 105). However, 

he is not the father of appellant’s twins. (Tr. 109). Don characterized his health as 

“bad.” (Tr. 110). He stated that he and appellant are engaged but they do not yet 

have a wedding date. (Tr. 111). Counsel then went over Don’s criminal history. He 

admitted to convictions for vehicular homicide, disorderly conduct, attempted 

interference with custody, and complicity to domestic violence. (Tr. 119-123). 

{¶49} C.P.’s paternal grandmother, Patricia, testified next. Patricia stated she 

has been available to help with C.P. when needed but she really does not see her 

very frequently. (Tr. 161-163). She stated that C.P. has cousins who live nearby. 

(Tr. 163, 166-167). She also testified that appellee takes C.P. to church every 

Sunday and she sometimes attends with them. (Tr. 165). 
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{¶50} Appellee’s girlfriend Randi was the next witness. Randi stated she has 

lived with appellee for the past two years and has observed appellee with C.P. (Tr. 

186-187). She stated C.P. generally spends two to three days a week with them. 

(Tr. 187). She stated she spends time with C.P. drawing, riding bikes, and going to 

the park. (Tr. 191). 

{¶51} Appellant’s daughter Kayla testified next. Kayla has lived with appellant 

and C.P. and has a six-year-old son of her own. (Tr. 216, 228). She spoke highly of 

Don’s and appellant’s relationship. 

{¶52} Appellant testified last. She stated that Don and C.P. are best friends. 

(Tr. 255). She stated she has never seen Don act violently. (Tr. 255). Appellant 

agreed as to appellee’s testimony regarding the amount of time appellee spends with 

C.P. (Tr. 259-260). As to her own health, appellant testified as to some health 

issues she had while she was pregnant in 2015, but stated she is healthy now other 

than her asthma. (Tr. 261). 

{¶53} As to child support, appellant stated she agreed not to pursue child 

support. (Tr. 264-265). She stated appellee told her he would help as much as he 

could but he has not really contributed to C.P.’s expenses. (Tr. 265-266). Appellant 

also agreed that she and appellee never went to court to establish parenting time but 

they were able to communicate and work it out. (Tr. 266). 

{¶54} Appellant testified C.P. loves her baby sisters and interacts with them. 

(Tr. 267). She also testified that her relationship with C.P. is fabulous. (Tr. 267). 

She stated they sing and dance, color pictures, play soccer, and talk about their 

days. (Tr. 267). 

{¶55} Appellant stated that she and Don decided to move to West Chapel, 

Florida, which she described as Belmont County in Florida. (Tr. 270-271). She 

testified about the new school C.P. would attend, which is only three minutes from 

her new house. (Tr. 272). Appellant stated that she had already enrolled C.P. in 

school and C.P. was excited about it. (Tr. 274, 281). Appellant stated that she does 

not currently work and instead stays with her four-month-old twins. (Tr. 278-279). 
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Appellant opined it was in C.P.’s best interest to move to Florida with her because 

there were more opportunities there and she could have a better life there. (Tr. 287). 

{¶56} Appellant testified that if the court ordered that C.P. could not move to 

Florida, she would not move. (Tr. 287-288). But appellant stated it would tear her 

family unit apart. (Tr. 288). She also testified she would help appellee with travel 

expenses to visit C.P. (Tr. 288). 

{¶57} On cross-examination, appellant also testified about a brief relationship 

she had with a man named Joe while she and Don were broken up. (Tr. 311). 

Appellant stated that Joe moved into her house in the fall of 2014. (Tr. 311). She 

stated he had a drug problem. (Tr. 311). Joe is the father of appellant’s twins. 

{¶58} Appellant stated that she first told appellee she was moving to Florida in 

May 2015, when Don took C.P. to Florida to look for houses. (Tr. 317). She also 

stated that her name is not on the deed of the house in Florida; it is titled only in 

Don’s name. (Tr. 322). 

{¶59} This evidence demonstrates that both parties love C.P. and would 

make suitable residential parents. Both parties have some pros and cons in favor of 

awarding them custody but neither appears to significantly outweigh the other. 

{¶60} As to appellee, he enjoys a close relationship with C.P. He has been 

actively involved in C.P.’s life since he learned he was her father in 2007. He 

regularly takes her to guitar lessons and church. His girlfriend of two-and-a-half 

years also enjoys a good relationship with C.P. Appellee has a stable job and home 

and is in good health. Appellee has never paid child support, although there is no 

arrearage because appellant never pursued child support. He does provide health 

insurance for C.P. There was testimony about a flea problem with appellee’s dogs at 

one point. 

{¶61} As to appellant, she too has a close relationship with C.P. She has 

always been C.P.’s primary caregiver and enjoys many activities with her. Her fiancé 

also has a close relationship with C.P. Appellant is now in good health after a difficult 

pregnancy. Appellant has infant twins to whom C.P. is very attached. Appellant 
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made the decision to move to Florida without consulting with appellee. She has no 

job or family there and only Don’s name is on the deed to the house in Florida. 

{¶62} Neither parent has denied parenting time to the other. In fact, the 

parties cooperated for approximately eight years without a court order. Likewise, 

neither parent has ever been convicted of any crimes involving children nor have they 

ever had a child adjudicated abused or neglected. 

{¶63} As to appellant’s specific arguments, first she claims the court failed to 

consider that appellee never testified that he wanted full custody of C.P. But 

appellee filed a motion for custody of C.P. Therefore, he was clearly seeking 

custody. Additionally, throughout his testimony appellee discussed his plans for if he 

had full custody of C.P. Therefore, the fact that his counsel never specifically asked 

him “do you want full custody?” is inconsequential. 

{¶64} Appellant next asserts the court failed to consider her wishes and her 

statement that she would not move to Florida without C.P. and also failed to consider 

C.P.’s wishes. She asserts the trial court abused its discretion by unfairly weighing 

her notice of intent to relocate. Appellant is correct here. 

{¶65} In its judgment entry, the trial court placed great emphasis on 

appellant’s desire to move to Florida. It noted that she had filed an intent to relocate. 

It pointed out that appellant has no family in Florida but that appellant and appellee 

both have family locally (Ohio/West Virginia area). The court noted that appellant 

was not moving for employment purposes and that neither she nor C.P. had ever 

lived in Florida. The court went on to observe that C.P. went to Florida with Don to 

purchase a house before appellant advised appellee she was moving. And it pointed 

out that appellant had taken C.P. to tour her new school in Florida while this matter 

was pending. The court found that appellant had built up C.P.’s excitement about 

moving to Florida to the point that if it granted custody to appellee, he would have to 

reconcile his relationship with C.P. Finally, the court found that a move to Florida 

would alienate C.P.’s relationship with appellee. 

{¶66} After making all of the above findings, the court then stated it 
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considered appellant’s testimony that she would not leave if C.P. could not move to 

Florida with her. 

{¶67} Despite the trial court’s statement that it considered appellant’s 

testimony that she would not leave Ohio without C.P., the court failed to weigh the 

testimony in light of this fact. This was an abuse of discretion. 

{¶68} All other factors were fairly equal in this case. The court found that C.P. 

has a good relationship with both parents and both parents are involved in her life. It 

noted that appellant has been C.P.’s primary caregiver and C.P. wished to remain in 

appellant’s custody. The court found that C.P. is well-adjusted to her home, school, 

and community. It found that both parents are likely to honor and facilitate courtordered visitation and that neither parent has ever denied the other parenting time. 

And it found that neither parent has ever been convicted of an offense involving a 

child or domestic violence. The court noted that appellant’s fiancé had been 

convicted of domestic violence and attempted interference with custody, but it noted 

that both convictions were over ten years ago. 

{¶69} The court also placed emphasis on the fact that appellant filed an intent 

to relocate to Florida with C.P. The court noted they would live in Don’s home. It 

observed that appellant has no family in Florida, has never lived in Florida, and is not 

moving for employment purposes. The court found although appellant claimed a 

move to Florida would not interfere with C.P.’s relationship with appellee, her actions 

do not support her claim. The court noted that Don took C.P. to Florida to buy a 

house before appellant told appellee she was moving. And appellant took C.P. to 

tour her new school while this matter was pending and built up C.P.’s excitement 

about moving. Additionally, the court found appellee does not have the resources to 

make multiple yearly trips to Florida to visit C.P. 

{¶70} In viewing the evidence and the court’s findings, it becomes clear that 

the trial court based its decision in this case on appellant’s plan to move to Florida. 

The court failed to consider that appellant testified unequivocally that she would not 

move to Florida without C.P. While appellant clearly would like to move to Florida, 
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she made clear that if the court did not allow her to take C.P. with her, she would not 

go. At the time of the hearing, appellant still resided in Ohio. Therefore, her plans to 

move to Florida were only plans. If the court ordered that she could not remove C.P. 

from Ohio, then appellant would remain in Ohio and the factors the court relied on in 

naming appellee the residential parent would cease to exist. 

{¶71} Moreover, the trial court found that if appellant did not relocate, the 

parties were encouraged to reconsider a shared parenting plan where appellant 

would be named the residential parent for school purposes so that C.P. could 

continue to attend her current school. This order is contradictory to the court’s order 

naming appellee the residential parent. 

{¶72} In sum, the court failed to consider appellant’s testimony that she would 

not move to Florida without C.P. The court also improperly relied on appellant living 

in Florida as support for its judgment awarding custody to appellee. Finally, the court 

added language in its judgment that is contradictory to its award of custody regarding 

shared parenting and naming appellant as the residential parent. Given these 

circumstances, we find that the trial court abused its discretion in granting custody of 

C.P. to appellee. 

{¶73} Third, appellant asserts the court abused its discretion by failing to 

appoint a guardian ad litem (GAL) for C.P. 

{¶74} Neither party in this case requested the court to appoint a GAL for C.P. 

It is well settled that a party’s failure to raise an argument in the trial court waives the 

issue on appeal. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio3626, 912 N.E.2d 595, ¶ 34. Because appellant failed to request a GAL for C.P. or 

otherwise raise this issue in the trial court, she has now waived it on appeal. 

{¶75} Fourth, appellant argues the child support order is improper. She 

asserts the order precludes her from collecting child support beyond a one-month 

period. She notes that the parties are to have equal time with C.P., yet appellee is 

the only party who can collect child support. She points out that appellee is 

employed but she stays home with infant twins. 
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{¶76} Given our resolution of appellant’s previous argument, the trial court will 

also have to revisit the issue of child support on remand. 

{¶77} Accordingly, appellant’s second assignment of error has merit and is 

sustained. 

{¶78} Appellant’s third assignment of error states: 

THE PARTIES, THROUGH COUNSEL, DID NOT WAIVE ANY 

POTENTIAL CONFLICT IN WRITING PRIOR TO THE COURT 

HEARING THE CASE. 

{¶79} In a July 9, 2015 judgment entry, the court stated that counsel was to 

advise it in writing whether they were waiving any conflict with the magistrate or the 

court by the next day. The court appears to have done so because the magistrate 

had acted as a guardian ad litem in a custody case involving appellant’s fiancé. The 

record does not reflect any signed waivers. 

{¶80} In her final assignment of error, appellant argues such waivers were 

necessary since much of the testimony revolved around her fiancé and his criminal 

history. 

{¶81} It is a general rule that an appellate court will not consider an error that 

a party could have called, but did not call, to the trial court's attention at a time when 

the error could have been avoided or corrected. Anderson v. Holskey, 7th Dist. No. 

08 BE 37, 2009-Ohio-3053, ¶ 18, citing State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 

545 (1968), paragraph three of the syllabus. 

{¶82} Appellant failed to raise this issue in the trial court when it could have 

easily been addressed. She did raise it in her objections, but appellant should have 

raised any issues she had with the magistrate before, or at the very latest at, the 

custody hearing. At no time during the two-day hearing or the magistrate’s interview 

of C.P. did appellant voice an objection regarding the magistrate or ask for the 

magistrate to recuse herself. Had she done so prior to, or even at, the hearing, the 

issue could have been addressed before the magistrate presided over the entire 
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custody proceeding. By waiting until after the magistrate presided over a two-day 

hearing to raise this issue, appellant has now waived it on appeal. 

{¶83} Accordingly, appellant’s third assignment of error is waived. 

{¶84} For the reasons stated above, the trial court’s judgment is hereby 

reversed and the matter is remanded. On remand, the trial court shall weigh the best 

interest factors given the fact that appellant will not relocate without C.P. After doing 

so, the trial court shall also revisit its child support order. 

Waite, J., concurs in judgment only. 

Robb, P.J., concurs.