[Cite as E.T.P. v. H.R.P., 2026-Ohio-2816.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
E.T.P., :
Appellant, :
v. : No. 115466
H.R.P., :
Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 23, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas,
Domestic Relations Division
Case No. DR-15-359951
Appearances:
Stafford Cruz Law Company and Kelley R. Tauring, for
appellant.
Nejame Law and Ryan J. Vescio, for appellee.
ANITA LASTER MAYS, J.:
Plaintiff-appellant E.T.P. (“Father”) appeals from the judgment of the
Cuyahoga County Court of Common Pleas, Domestic Relations Division, that
overruled his objections to the magistrate’s decision, granted the motion of defendant-appellee H.R.P. (“Mother”) to modify the allocation of parental rights
and responsibilities, and designated Mother the residential parent and legal
custodian of the parties’ minor child. Father raises three assignments of error,
challenging the trial court’s subject-matter jurisdiction, its refusal to disqualify
Mother’s counsel, and its modification of the prior custody decree. For the reasons
that follow, we affirm the judgment.
I. Factual and Procedural History
Father and Mother were married on December 12, 2010, and one
child was born of the marriage in 2011. The parties were divorced by a judgment
entry of divorce journalized May 25, 2016, which adopted a shared-parenting plan
and designated Mother the residential parent for school-placement purposes.
The parties’ post-decree litigation has been protracted and
continuous. In 2017 and 2018, Mother filed successive motions to terminate the
shared-parenting plan and to relocate the child to Florida. Those motions were tried
before a magistrate over 11 days between October 2018 and February 2019. On
April 10, 2019, the magistrate issued a decision terminating the shared-parenting
plan, denying Mother’s request to be designated residential parent, and
recommending that Father be designated the residential parent and legal custodian.
By judgment entry journalized December 13, 2019, the trial court overruled
Mother’s objections in relevant part and designated Father as residential parent and
legal custodian (the “2019 decree”).
Mother appealed. This court affirmed the 2019 decree, holding that
the trial court did not abuse its discretion in designating Father the sole residential
parent and legal custodian or in terminating the shared-parenting plan. See Perrin
v. Perrin, 2021-Ohio-2581 (8th Dist.) (the “prior appeal”).
Mother filed a motion to modify on November 29, 2021, that she
voluntarily dismissed on March 23, 2022. On July 13, 2022, the parties entered an
agreed judgment entry that adjusted the child’s summer, holiday, communication,
and exchange schedule (the “2022 AJE”). The 2022 AJE did not disturb Father’s
designation as residential parent and legal custodian.
Attorney Ryan J. Vescio (“Vescio”), Mother’s husband and the child’s
stepfather, first appeared on his own behalf in January 2022 in connection with a
subpoena and filed an amended notice of appearance as co-counsel for Mother on
June 7, 2022. He thereafter filed numerous pleadings and appeared at numerous
hearings on Mother’s behalf.
On March 29, 2024, Mother filed the motion to modify the parenting
order that underlies this appeal, alleging, among other things, that the child’s needs
had evolved as he matured and that Father had become increasingly unable to meet
the child’s emotional needs. Mother did not file a parenting-proceeding affidavit
under R.C. 3127.23 with the motion. The trial court appointed a guardian ad litem
(“GAL”) on May 23, 2024.
On November 27, 2024, the business day before trial, Father moved
to disqualify Vescio as Mother’s counsel, asserting a conflict of interest under Prof.Cond.R. 1.7 and Vescio’s status as a necessary fact witness under
Prof.Cond.R. 3.7. The trial court denied the motion by entry dated December 3,
2024.
Trial proceeded before the magistrate on December 3 and 5, 2024. At
the outset, Father orally moved to dismiss for lack of subject-matter jurisdiction
based on Mother’s failure to file the R.C. 3127.23 affidavit. The magistrate denied
the motion, observing that the court had presided over the matter for many years
and knew where the child had resided. The magistrate heard testimony from Father,
Mother, the GAL, and other witnesses.
The magistrate issued a decision on April 4, 2025, granting Mother’s
motion, designating Mother the residential parent and legal custodian, and
awarding Father the visitation schedule previously allocated to Mother. Father filed
objections and supplemental objections. By judgment entry journalized July 25,
2025, the trial court overruled Father’s objections and adopted the magistrate’s
decision in full. Father timely appealed and assigned the following assignments of
error:
1. The trial court committed reversible error when it denied E.P.’s
Motion to Dismiss, granted H.V.’s Motion to Modify, and overruled the
father’s objections, absent subject-matter jurisdiction.
2. The trial court erred and abused its discretion by failing to disqualify
H.V.’s husband from representing her as Counsel of Record under the
Rules of Professional Conduct.
3. The trial court erred as a matter of law and abused its discretion by
modifying the allocation of parental rights and responsibilities and
designating H.V. as the residential parent and legal custodian.
II. Law and Analysis
A. Continuing Subject-Matter Jurisdiction
In his first assignment of error, Father contends that Mother’s failure
to file the parenting-proceeding affidavit required by R.C. 3127.23 deprived the trial
court of subject-matter jurisdiction, rendering the July 25, 2025 judgment void ab
initio.
Whether a court possesses subject-matter jurisdiction is a question of
law that we review de novo. Martindale v. Martindale, 2016-Ohio-524, ¶ 27 (4th
Dist.). Under that standard, we afford no deference to the trial court’s determination
and independently review the record to determine whether the judgment is
appropriate. Klarfeld v. Vestige Group, L.L.C., 2025-Ohio-2678, ¶ 9 (8th Dist.).
The Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), codified in R.C. Ch. 3127, defines a court’s subject-matter jurisdiction
to make a child-custody determination. Mireles v. Veronie, 2020-Ohio-3078, ¶ 6
(9th Dist.). The UCCJEA sets up clear rules regarding subject-matter jurisdiction to
determine child custody and visitation matters. Dorazio v. Dorazio, 2016-Ohio-713,
¶ 10 (8th Dist.). R.C. 3127.15 furnishes the exclusive jurisdictional basis for an Ohio
court to make such a determination. In re M.R.J., 2019-Ohio-2755, ¶ 17 (4th Dist.);
R.C. 3127.15(B). The parenting-proceeding affidavit in R.C. 3127.23 is the
mechanism for putting the jurisdictional facts (residences, other proceedings, etc.)
before the court so it can decide if R.C. 3127.15 is satisfied. R.C. 3127.23(A) provides:
Each party in a child custody proceeding, in the party’s first pleading or
in an affidavit attached to that pleading, shall give information if
reasonably ascertainable under oath as to the child’s present address or
whereabouts, the places where the child has lived within the last five
years, and the name and present address of each person with whom the
child has lived during that period.
Father correctly observes that the word “shall” is ordinarily construed
as mandatory. Gilreath v. Dept. of Job & Family Servs., 2024-Ohio-103, ¶ 43. He
conflates, however, two distinct requirements. R.C. 3127.15 confers jurisdiction;
R.C. 3127.23 prescribes the affidavit by which a movant ordinarily demonstrates the
jurisdictional facts. The failure to file that affidavit does not, alone, divest a court of
jurisdiction it otherwise possesses under R.C. 3127.15. “It is only when the trial
court lacks subject-matter jurisdiction that its judgment is void; lack of jurisdiction
over the particular case merely renders the judgment voidable.” In re K.K., 2022-Ohio-3888, ¶ 9. Because the domestic relations court’s subject-matter jurisdiction
over custody proceedings derives from R.C. 3127.15 — and that jurisdiction is
undisputed here — any deficiency in the R.C. 3127.23 affidavit goes, at most, to the
court’s exercise of jurisdiction over this particular case and does not render the
judgment void ab initio as Father contends.
The Supreme Court of Ohio has long refused to treat the affidavit
requirement as a rigid, mechanical rule. In In re Complaint for Writ of Habeas
Corpus for Goeller, 2004-Ohio-5579, the Court explained that the requirement that
the affidavit accompany a party’s first pleading “has been relaxed to allow amended
pleadings or subsequent filings to include the affidavit information,” and cautioned that a mechanistic interpretation could render the State’s custody statutes a nullity.
Id. at ¶ 10-12, citing In re Palmer, 12 Ohio St.3d 194 (1984).
This court applied that principle in In re K.B., 2015-Ohio-4088 (8th
Dist.). There, as here, the parties had previously been before the court, which was
“well aware of where and with whom the child had been living” and aware of the
prior proceedings. Id. at ¶ 18. We held that, even without the affidavit, the trial
court was able to ascertain that it had jurisdiction and that the absence of the
affidavit did not divest the domestic relations court of jurisdiction. Id.; see also
Sumerford v. Sumerford, 2012-Ohio-1842, ¶ 16 (10th Dist.).
The record here presents an even stronger case for jurisdiction than
In re K.B. The same court has presided over this family’s custody litigation
continuously since 2017, conducting numerous hearings, an 11-day trial, and a prior
round of appellate-tested proceedings concerning this very child. The court was
intimately familiar with the child’s residential history and with the absence of any
competing proceeding in another jurisdiction. The purpose the R.C. 3127.23
affidavit serves, to apprise the court of facts bearing on home-state jurisdiction and
the existence of competing proceedings was, therefore, fully satisfied here, and the
record demonstrated the court’s continuing jurisdiction under R.C. 3127.16.
Father’s reliance on Frew v. Frew, 2008-Ohio-4203 (5th Dist.), is
misplaced. Frew affirmed the dismissal of an initial dissolution proceeding where
the parties failed to file the required affidavits within a reasonable time after being
notified of the deficiency. Id. at ¶ 12. It did not hold that the affidavit is an independent jurisdictional prerequisite that no other record can satisfy; it addressed
a want-of-prosecution dismissal in a newly filed action in which the court had no
independent familiarity with the child’s circumstances. The present case is
inapposite. Father’s argument that the trial court improperly shifted the burden of
proof likewise fails. The court did not require Father to disprove jurisdiction;
rather, R.C. 3127.23(B), independently authorized the court to confirm subjectmatter jurisdiction through an alternative method to the affidavit.
Because the trial court possessed subject-matter jurisdiction under
R.C. 3127.15, notwithstanding the absence of an R.C. 3127.23 affidavit, the July 25,
2025 judgment is not void.
Accordingly, Father’s first assignment of error is overruled.
B. Motion to Disqualify Counsel
Father next contends that the trial court abused its discretion by
declining to disqualify Vescio under Prof.Cond.R. 1.7 and 3.7.
We review a trial court’s ruling on a motion to disqualify counsel for
an abuse of discretion. Sholar v. Sholar, 2025-Ohio-4883, ¶ 14 (2d Dist.). An abuse
of discretion occurs where a court applies the wrong legal standard, misapplies the
correct standard, or relies on clearly erroneous findings of fact. R.E.S. v. M.J.M.,
2025-Ohio-546, ¶ 18 (8th Dist.). Disqualification is a drastic measure that should
not be imposed unless necessary, and it interferes with a party’s right to counsel of
choice. Quiros v. Morales, 2007-Ohio-5442, ¶ 15 (8th Dist.); Kala v. Aluminum
Smelting & Refining Co., 1998-Ohio-439.
The trial court denied the motion on two independent grounds: it was
untimely and Father failed to show that Vescio was a necessary witness whose
testimony was unobtainable from other sources. Either ground, if sustainable,
supports the court’s exercise of discretion.
As to timeliness, a motion to disqualify should be raised soon after the
onset of litigation, or at least within a reasonable time once the facts are known, and
undue delay may operate as a waiver where it results in serious prejudice or
substantial hardship to the opposing party. Stanley v. Bobeck, 2009-Ohio-5696,
¶ 9-10 (8th Dist.). Vescio appeared as co-counsel in June 2022 and thereafter filed
numerous pleadings and appeared at numerous hearings, all while Father was
represented by a succession of counsel. Father did not move to disqualify until the
business day before trial, more than two years later. The trial court reasonably
determined that disqualifying counsel on the eve of trial would have imposed
substantial hardship and created delays inconsistent with the child’s best interest in
a prompt resolution.
As to necessity, Prof.Cond.R. 3.7 prohibits a lawyer from acting as an
advocate at a trial in which the lawyer is likely to be a necessary witness, subject to
enumerated exceptions. A “necessary witness” is one whose testimony is both
admissible and unobtainable through other trial witnesses; testimony that is merely
relevant, or even highly useful, is not necessarily “necessary.” Gonzalez-Estrada v.
Glancy, 2017-Ohio-538, ¶ 12 (8th Dist.); Goebel v. Hopkins, 2024-Ohio-194, ¶ 18
(12th Dist.). A party’s mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification, even if counsel could give
relevant testimony. Gonzalez-Estrada at ¶ 12.
Father did not carry that burden. Although he asserted that Vescio
possessed firsthand knowledge of the child’s circumstances in Mother’s home and
listed Vescio as a potential witness, neither his motion nor his brief identified any
admissible testimony obtainable only from Vescio. As the trial court observed, the
same matters were available from Mother, the GAL, and the parenting coordinator.
That Vescio testified in the 2018-2019 proceedings does not alter the analysis; no
such testimony was offered or admitted at the 2024 trial.
Father’s argument under Prof.Cond.R. 1.7 fares no better. The
conflict he describes that Vescio’s marital and financial interests prevent him from
rendering detached advice, is, in the first instance, a conflict personal to the client
whom the rule protects. Mother, the affected client, did not seek Vescio’s removal.
Although the trial court retains inherent authority to disqualify counsel to protect
the integrity of its proceedings, the trial court reasonably determined that no such
intervention was warranted here, particularly given the availability of the relevant
testimony from other witnesses and the untimeliness of the motion.
On this record, we cannot say the trial court applied an incorrect legal
standard or relied on clearly erroneous findings of fact.
The second assignment of error is overruled.
C. Modification of the Allocation of Parental Rights and Responsibilities
In his final assignment of error, Father contends that the trial court
abused its discretion in modifying custody because the record establishes no change
in circumstances and because the court failed to make the findings required by
R.C. 3109.04(E)(1)(a).
We review a custody-modification decision for an abuse of discretion.
T.H. v. N.H., 2021-Ohio-217, ¶ 46 (10th Dist.). An abuse of discretion connotes an
attitude that is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). This deferential standard is especially
appropriate in custody matters, where the trial court is best positioned to weigh the
evidence and judge the credibility of the witnesses. Davis v. Flickinger, 77 Ohio
St.3d 415 (1997).
R.C. 3109.04(E)(1)(a) provides that a court shall not modify a prior
decree allocating parental rights 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 or a parent, and that
modification is necessary to serve the child’s best interest. Where, as here, neither
a residential parent’s agreement nor integration with consent applies, the court
must further find that “[t]he harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child.”
R.C. 3109.04(E)(1)(a)(iii). A modification thus requires findings that (1) a change
in circumstances has occurred; (2) modification serves the child’s best interest; and (3) the benefits of the change outweigh any harm, and the record must adequately
support each. In re N.J.V., 2025-Ohio-375, ¶ 22 (8th Dist.); Craig v. Athey, 2025-Ohio-336, ¶ 18 (7th Dist.).
A threshold dispute concerns the proper baseline against which
change is measured. Father urges that the relevant baseline is the July 2022 AJE;
on that premise, he argues, the child’s wish to relocate to Florida cannot be a
“change” because it predates the 2022 AJE. We reject the premise. For purposes of
R.C. 3109.04(E)(1), the “prior decree” is the decree that actually allocated parental
rights. In re J.C., 2019-Ohio-107, ¶ 20, 28 (8th Dist.). The 2022 AJE adjusted only
parenting-time logistics and did not reallocate residential-parent status, and
Mother’s November 2021 motion was voluntarily dismissed under Civ.R. 41(A)
without any adjudication on the merits. The decree that allocated parental rights,
and thus the baseline, is the 2019 decree.
Measured against the 2019 decree, the record supports the trial
court’s finding of a change in circumstances. At the time of the 2019 proceedings,
the child was seven and the then GAL and a forensic evaluator reported that the
child did not want to move to Florida. By the 2024 trial, the child was 13 and,
according to the GAL’s testimony, consistently and emphatically expressed a
preference to live with Mother in Florida, where he felt more supported and
connected. This court has recognized that a child’s maturation from early childhood
into adolescence may itself constitute a sufficient change of circumstances, In re J.C.
at ¶ 28, citing Perz v. Perz, 85 Ohio App.3d 374 (6th Dist. 1985), and the Supreme Court has observed that even a modest change in age, combined with deterioration
in the parent-child relationship, may suffice. Davis, 77 Ohio St.3d at 416-417. The
record reflects both.
Father places great weight on the GAL’s affirmative answer on crossexamination that what had “changed” since 2022 was the child’s “age.” Read in
context, that testimony does not undermine the existence of a change in
circumstances; it pinpoints what is driving it. The GAL elaborated that the child’s
needs had evolved with adolescence, that the issues facing a 13-year-old differ
substantially from those facing a ten-year-old, and that the child’s emotional needs
were not being met in Father’s home. The trial court was entitled to credit that
testimony and the corroborating testimony of Mother and another witness. That
Father offered a markedly different account of his relationship with the child
presented a credibility question for the trier of fact, not a basis for reversal. Davis
at 418.
Father contends that, even assuming a change in circumstances, the
trial court failed to make the finding required by R.C. 3109.04(E)(1)(a)(iii) — that
the harm of changing the child’s environment is outweighed by its advantages. The
statute requires that finding, and an entry devoid of any such determination would
be deficient. In re N.J.V. at ¶ 22. On this record, however, we cannot say the
requisite determination is absent. The trial court adopted in full a magistrate’s
decision rendered after a two-day trial.
Change of Circumstances
The record reflects that circumstances had materially changed since
the 2019 decree. At the time of the earlier proceedings, the child did not want to
move to Florida, whereas by the time of the present motion the child had entered
adolescence, started middle school, turned 13, and developed new emotional and
social needs. The child had become increasingly isolated and distant from Father,
whose testimony describing the nature of his relationship with the child was the
opposite of the child’s disclosures to the GAL and the child’s mental-health
providers. Moreover, the GAL’s recommendation had changed to support the
child’s relocation and placement with Mother. These circumstances reflect a
materially different situation from the one considered in 2019.
Best Interest of the Child
In assessing best interest, the trial court credited evidence that the
child was experiencing loneliness, emotional isolation, and a lack of meaningful
support in Ohio. It contrasted those circumstances with the child’s stronger sense
of belonging, emotional support, and connection with Mother and her family in
Florida. The court also gave weight to the GAL’s updated recommendation and the
child’s expressed wishes, concluding that the child’s best interests would be served
by granting the motion to modify custody.
Harm Outweighed by Benefit of Change
The record supports a finding that the benefits of a change in custody
outweighed any harm associated with changing the child’s residential parent and environment. Although a custody change would necessarily involve disruption, the
advantages of placing the child in a more supportive and emotionally appropriate
environment with Mother exceeded the likely harm from the transition. In reaching
that conclusion, the court relied on the child’s developmental needs, his
deteriorating emotional condition in Ohio, and the GAL’s revised recommendation
in favor of modification.
Because the record supports the trial court’s findings, we cannot say
that the court’s decision was unreasonable, arbitrary, or unconscionable.
Accordingly, Father’s third assignment of error is overruled.
III. Conclusion
We note that the record does not contain an R.C. 3127.23(A)
parenting-proceeding affidavit filed in connection with Mother’s motion to modify
custody. As discussed above, this omission does not divest the domestic relations
court of subject-matter jurisdiction it otherwise possesses under R.C. 3127.15 and
the court’s extensive familiarity with this family independently satisfies the
informational purpose of the affidavit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, A.J., and
DEENA R. CALABRESE, J., CONCUR