[Cite as Klingensmith v. Klingensmith, 2026-Ohio-3078.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
PATRICK F. KLINGENSMITH, JR.,
Plaintiff-Appellee,
v.
HOLLY J. KLINGENSMITH NKA TOTTEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 26 MA 0009
Civil Appeal from the
Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio
Case No. 2019 DR 00382
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Katelyn Dickey, Judges.
JUDGMENT:
Affirmed.
Atty. Mark A. DeVicchio and Atty. Tallie R. Orengia, Betras Kopp, LLC, for PlaintiffAppellee
Atty. Rhys B. Cartwright-Jones, for Defendant-Appellant
Dated: August 7, 2026
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WAITE, P.J.
{¶1} Appellant Holly J. Klingensmith nka Holly Totten appeals the decision of the
Mahoning County Court of Common Pleas, Domestic Relations Division, granting
Appellee Patrick F. Klingensmith, Jr.’s motion for custody. The parties were married and
had two children together, but were divorced on June 30, 2021. Appellant mother was
granted custody of both children in a shared parenting agreement. Appellee father’s
motion for custody, at issue in this appeal, was heard in a two-part trial in November of
2025 and January of 2026. As a result, Appellee was designated as residential parent
and legal guardian of the younger child, C.K. Appellant retained custody of the older
child, L.K.
{¶2} On appeal, Appellant argues that there was insufficient evidence of a
change in circumstances, required to justify a reallocation of parental rights, and that it
was not in the best interests of C.K. for parental rights to be changed. The record contains
evidence of a sharp increase in hostility between the parties since the prior decree,
resulting in Appellant’s refusal to comply with court orders, her repeated interference with
Appellee’s contact rights, and the failure of reunification counseling. The evidence
supports both that a change of circumstances occurred and that the change of custody
was in the best interests of the children.
{¶3} Hence, none of Appellant's assignments of error have merit and the
judgment of the trial court is affirmed.
Facts and Procedural History
{¶4} The matter began in a divorce complaint filed August 1, 2019. The parties
were divorced on June 30, 2021, and entered into a shared parenting plan for their two
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minor children, L.K. (d.o.b. 5/28/2010) and C.K. (d.o.b. 7/1/2015). Appellant mother was
designated the residential parent, and Appellee father was to have supervised parenting
time at the Solace Center.
{¶5} This case has generated a great deal of litigation following the divorce
decree. The docket contains over 650 line items. On August 19, 2021 Appellee filed a
motion to reallocate parental rights. Between that date and the date of trial on the motion,
the parties filed over a dozen additional motions, including contempt motions, motions to
modify visitation, a motion for physical and mental health evaluations, motions to stay
execution and set aside a magistrate’s order, a motion for a new judge, a motion to
compel reunification counseling, a motion for an in camera interview of the children, and
a motion to suspend parenting time. A visiting judge was appointed to the case. (See
9/8/23 J.E.) After an eight-day trial, the court issued its ruling on February 5, 2024,
denying the motion to reallocate.
{¶6} In its entry and as part of its decision, however, the court ordered the parties
to begin reunification counseling with Jill Thompson. The court also ordered parenting
classes, and ordered Appellee father to attend a batterer’s intervention class. While the
contempt motions were also denied, Appellant was ordered to take the children to a
psychiatrist or psychologist as discussed at trial, and to provide Appellee with all up-todate contact information, including information about counselors and psychologists,
within 30 days. The court denied Appellant’s motion to modify Appellee’s companionship
with the children, and instead ordered that until Appellee and the children attended a
reconciliation appointment, Appellee would continue to meet once a week with them as
well as engage in court-ordered FaceTime video chats. Appellant was ordered to
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facilitate reunification appointments. After the first meeting with the reconciliation
counselor, further meetings would be at the discretion of the counselor. The parties were
ordered not to discuss parenting issues in the presence of the children. Both parties were
to have full access to the children’s medical and scholastic records and neither party was
to interfere with this access.
{¶7} Further litigation continued after the February 5, 2024 ruling. On June 4,
2024 Appellee filed a motion to show cause, alleging that the court-ordered reunification
counseling had not taken place and that Appellant had canceled all appointments. The
motion also alleged that Appellant had failed to provide contact information for the
children’s counselor, as ordered.
{¶8} On October 15, 2024 Appellant filed a motion to modify Appellee’s parenting
time and to have the court conduct an in camera interview of the children. The motion
also sought to terminate counseling or have a different counselor appointed.
{¶9} On January 7, 2025 Appellant filed a motion to compel. On January 29,
2025 Appellee filed a motion for an in camera inspection of video recordings he had made
of the parties. A status hearing was held on May 12, 2025. Appellant appeared without
counsel and requested court-appointed counsel, and was given information on applying
for court-appointed counsel. The parties agreed to meet with another counselor, Dr.
Sarah Macovitz, on June 9, 2025. After the meeting, Dr. Macovitz recommended that
she and the judge conduct an in camera interview of the children and that any parenting
time schedule be set after the interview.
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{¶10} On June 20, 2025 Appellant filed a motion for court-appointed counsel.
However, as she failed to include any financial information on the affidavit of income and
expenses, counsel was not appointed.
{¶11} On July 9, 2025 a hearing was held following an in camera interview of the
children. Appellant appeared without counsel. The court determined that it was no longer
in the best interest of L.K. to be pressured to have contact with Appellee. The court
determined, however, that C.K. expressed an interest in having a relationship with
Appellee, and the court considered it in the child’s best interest to pursue this interest.
The court ordered that Appellee was to meet C.K. at a Dairy Queen that had previously
been used as a meeting point, and that Appellee was to have telephone contact with C.K.
on Sundays at 3:30 p.m.
{¶12} On August 6, 2025, Appellee again filed a motion for custody. This motion
is the focus of the instant appeal. Appellee argued that Appellant was engaging in acts
of parental alienation and child abuse by intentionally manipulating the children in order
to destroy their relationship with Appellee. He also argued that Appellant failed to comply
with the court’s order that Appellee be permitted telephone contact once per week, and
that Appellant agreed in court to provide him with the cell phone numbers of the children,
but she had not.
{¶13} A status hearing was held on September 17, 2025. Appellant appeared
without counsel. Dr. Macovitz appeared at the hearing. Appellant admitted that she
terminated the cell phone accounts of the two boys after the court ordered that Appellee
was to have telephone contact every Sunday. Hence, the court ordered Appellee to
purchase pre-paid cell phones for the boys and for Appellee to contact Appellant and
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arrange a time and place to give the phones to the boys. Appellee was granted voice or
text contact with the boys, without interference from Appellant. Appellee was advised to
contact Appellant if the boys failed to respond to his calls, and she was to encourage
them to respond.
{¶14} Trial dates for the motion for custody were set for November of 2025 and
January of 2026.
{¶15} On October 15, 2025 Appellee filed a motion to show cause, alleging that
Appellant failed to deliver the phones he had purchased to the boys, as ordered, instead
returning the phones to Appellee.
{¶16} Trial on the motion for custody began on November 19, 2025 and continued
on January 7, 2026. Appellant appeared without counsel. The trial was conducted by
visiting Judge Pamela Rintala. Appellee’s counsel called Appellant to testify. Appellee
also testified. Appellant separately testified on her own behalf. The court found that as
a result of the prior hearing regarding parental rights, the parties were ordered to attend
reunification counseling, with the goal that Appellee would obtain standard parenting time
with his children. The plan as ordered was that Appellant would enter the building with
the boys, get settled in, and Appellee would arrive a few minutes later. In reality, although
Appellant would sometimes appear in the parking lot of the session, she would enter the
building alone, leaving the children in the car. She would then exit the building and leave
with the children. Appellee had been granted the right to have dinner once per week with
the children, but Appellant prevented it. On the few occasions he did have direct contact
with his children, Appellant would be present, would answer for them and not let them
speak, and would keep Appellant at a distance from the children. Appellee was permitted
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by court order to have phone contact with the children, but Appellant usually prevented it.
Appellant testified that she only allowed contact if the children specifically stated that they
wanted contact. The court ordered Appellant to allow Appellee to deliver two cell phones
to the children so they could communicate directly with Appellee. She claimed that the
children received the phones, but no calls were made on them, so she later returned the
phones. Appellant was also ordered to obtain counseling with the children and to give
Appellee the contact information of the psychiatrist or psychologist. Appellant did not
provide Appellee with any contact information, and there was no evidence that any
sessions ever took place.
{¶17} Appellee testified that he had been given no face-to-face contact with C.K.
since July of 2025. Appellee appeared for visits, but C.K. was either not there or did not
exit Appellant’s car. Appellee could only contact C.K. by calling Appellant’s phone, but
those conversations were short and not fruitful.
{¶18} Appellee testified that he had followed all court orders. Appellee said that
L.K. had been struggling in school since the previous court order and C.K. was getting B
and C grades. If he were granted custody, Appellee testified he would move them to a
new school district, but had no plans on relocating his home. He testified he had no health
concerns for himself, while Appellant complained about her own health. Appellee said he
contacts the school to keep up to date with how his children are doing. L.K. plays football
at school, and Appellee attends all the games. Appellee testified he would facilitate
visitation between the children and Appellant if he were given custody. He feared,
however, that he would be able to have no relationship at all with his boys if Appellant
retained custody.
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{¶19} Appellant testified that she does not feel safe around Appellee. During one
visit, she yelled at Appellee while the children were with her and said that Appellee was
invading her personal space. She has told the children that Appellee made bad personal
choices, and that he calls people terrible names. When asked whether she complied with
court orders regarding Appellee’s right to contact and communication, she answered that
it was up to the children to decide if they want to have contact with Appellee. She testified
a number of times that she was not sure what the court orders actually required.
(11/19/25 Tr., pp. 292, 293, 325.) Appellant said the children do not respect Appellee
and have nothing to say to him. She testified that it had been years since the children
were alone with Appellee, and then it was only for a few minutes. She testified that
visitation, as ordered by the court, had not taken place for five-and-one-half years.
(11/19/25 Tr., p. 309.) She agreed the court had ordered Appellee had the right to
consistently spend time with the children, and that she was ordered to vacate the area
during his visitation, but admitted that she had not facilitated any visitation. (11/19/25 Tr.,
p. 312.)
{¶20} She testified that she did not want the phones Appellee provided because
she feared they contained tracking devices, and that she cancelled the cell phones she
had provided and was paying for because she needed money for other things. She said
she had appeared at some counseling sessions, but the children did not get out of the
car, and that she cancelled some sessions. She specifically admitted she did not obey
the order to take the children to Dr. Jill Thompson, walk them in, and leave after 15
minutes. She was asked about a prior statement she made that the children were seeing
a psychiatrist or psychologist, and she admitted they were not.
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{¶21} The court filed its judgment entry on January 28, 2026. After making
extensive findings of fact and applying the law, the court determined that there had been
a change in circumstances, and that it was in the best interest of C.K. that Appellee be
designated residential parent and legal custodian. Appellee’s motion for custody of L.K.
was denied. L.K. was encouraged, but not ordered, to spend weekends with C.K. on the
weekends C.K. was with Appellee. Appellant was granted standard visitation, with one
mid-week visit. The court also set forth orders regarding its expectation that Appellant
and Appellee would cooperate with child care. The court denied all other pending
motions. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND A
SUFFICIENT POST-DECREE CHANGE IN CIRCUMSTANCES UNDER
R.C. 3109.04(E)(1)(A) TO JUSTIFY A TRANSFER OF C.K.’S
RESIDENTIAL PLACEMENT.
{¶22} Appellant correctly argues that a trial court must find a change in
circumstances has occurred before deciding whether a reallocation of parental rights is
in the best interests of the child, pursuant to R.C. 3109.04(E)(1)(a). Appellant is also
correct that the change of circumstances must be significant, and that “the change must
be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger,
77 Ohio St.3d 415, 418 (1997). Appellant also correctly observes the change of
circumstances must result from facts that have arisen after the most recent decree
regarding the allocation of parental rights and responsibilities. Lipp v. Lipp, 2023-OhioCase No. 26 MA 0009
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4741, ¶ 13 (7th Dist.); R.C. 3109.04(E)(1)(a). Appellant contends that the trial court erred
in finding a change of circumstances occurred in this matter, and urges that the judgment
should be reversed on this basis.
{¶23} Decisions regarding child custody are within the sound discretion of the trial
court and will only be reversed on appeal for abuse of that discretion. Reynolds v. Goll,
75 Ohio St.3d 121, 124 (1996). An abuse of discretion connotes that the trial court's
decision was arbitrary, unreasonable, or unconscionable. Rohrbaugh v. Rohrbaugh, 136
Ohio App.3d 599, 603 (7th Dist. 2000). “The term ‘abuse of discretion’ means an error in
judgment involving a decision that is unreasonable based upon the record; that the
appellate court merely may have reached a different result is not enough.” In re S.S.L.S.,
2013-Ohio-3026, ¶ 22 (7th Dist.). The abuse of discretion standard applies to both the
finding of a change of circumstances and the best interests ruling of the trial court. Davis
at 418; Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
{¶24} Under R.C. 3109.04(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.
Thus, finding a change in circumstances has occurred is the first step in this process.
Case No. 26 MA 0009
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{¶25} Appellant contends that there was insufficient evidence to support the
conclusion that a change of circumstances had taken place. Normally, a review for abuse
of discretion subsumes the more particular review of the sufficiency or weight of the
evidence in child custody cases. See, e.g., M.K. v. A.K., 2017-Ohio-8458 (5th Dist.)
(manifest weight and sufficiency challenges ignored under abuse of discretion review).
Nevertheless, even under an abuse of discretion review, the reviewing court must
examine whether the evidence supports the trial court decision. “[T]he reviewing court in
such proceedings should be guided by the presumption that the trial court's findings were
indeed correct.” Miller at 74. “Where the trial court's change-in-circumstances
determination is supported by competent, credible evidence, its decision will not be
reversed on appeal as being against the manifest weight of the evidence.” Polhamus v.
Robinson, 2017-Ohio-39, ¶ 28 (3d Dist.)
{¶26} Appellant cites three Seventh District cases she contends support her
position. Appellant contends that Craig v. Athey, 2025-Ohio-336 (7th Dist.) supports her
argument that no change of circumstances can be found when the facts merely describe
a continuation of the status quo. In Craig, the appellant tried to overturn a decision
denying a motion for reallocation of parental rights where the court found no change in
circumstances. This is the opposite position from the decision in the current appeal. In
Craig, we deferred to the findings and discretion of the trial court, as we are required in
these cases. The issue in Craig was not whether the facts showed merely a continuation
of the status quo, but rather, whether the mother’s move to a location 45 miles away
should be treated as a change in circumstances. The evidence showed no detrimental
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effect on the child and some positive effect. Thus, there was no abuse of discretion in
the trial court’s decision there was no change in circumstances arising from the move.
{¶27} Appellant argues that Chick v. Chick, 2020-Ohio-4431 (7th Dist.) supports
her position because no change of circumstances was found in an anticipated school
change, coupled with ongoing problems with the child related to communication and
education. Once again, Chick involves a challenge to the denial of a motion to reallocate
parental rights. We again deferred to the trial court’s discretion in the matter. The
communication issues and the expectation that a school change was probable existed
prior to the custody decree, and so could not be considered as “new.” Additionally, the
evidence contradicted the mother’s argument that the child was having educational
difficulties. Nothing in Chick supports Appellant’s arguments, here.
{¶28} Finally, Appellant cites Depascale v. Finocchi, 2010-Ohio-4869 (7th Dist.)
in support. She argues that in Depascale we refused to treat friction, hostility, and
communication failures as a basis for a change in circumstances. Once again, Depascale
involved an appeal of the denial of a motion to modify parental rights. The appellant in
Depascale relied on facts that existed prior to their most recent parental rights decree to
support a change in circumstances had occurred. Thus, the facts did not support a
change in circumstances following that decree. There was an argument that the mother
moved to a location a few miles away, but there was no evidence of a detrimental effect
on the child from the move. Once again, the facts of Depascale and the deference we
must accord the trial court findings do not support Appellant’s argument in this appeal.
We noted in Depascale that: “In this court's recent history, we have found that a
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combination of factors must be considered to amount to a change in circumstances.” Id.
at ¶ 35. We also held that:
The specific and unique circumstances of the parties will always
frame the issue, and the occurrence of certain events may or may not
constitute a change in circumstances depending on the context in which
they occurred, and depending on the surrounding totality of the
circumstances.
Id. at ¶ 38.
{¶29} No one particular fact must clearly demonstrate a change in circumstances,
but rather “the trial court may consider the total effect of the facts alleged to have resulted
in a change of circumstances.” Hoying v. Hoying, 2022-Ohio-2515, ¶ 67 (2d Dist.).
{¶30} Failure to follow through with counseling, alone, is a basis for finding a
change in circumstances has occurred. In re Wright, 2003-Ohio-546, ¶ 30 (5th Dist.).
{¶31} “It is beyond question that a custodial parent's interference with visitation by
a noncustodial parent may be considered a change of circumstances that would allow for
a modification of custody.” In re S.M.T., 2012-Ohio-1745, ¶ 7 (8th Dist.).
{¶32} Willful violation of orders regarding the facilitation of the relationship of the
child with the non-custodial parent can be a basis for finding a change of circumstances.
In re R.T., 2025-Ohio-1829, ¶ 80 (8th Dist.).
{¶33} Hence, the record in this case contains many instances showing that
circumstances had changed since the prior decree on February 5, 2024. The children
had stopped seeing their counselor. The court had determined that it was no longer in
Case No. 26 MA 0009
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L.K.’s best interest to continue to be forced into a relationship with Appellant. The court
ordered Appellant to provide Appellee phone time with the children once per week, which
Appellant disobeyed, initially by canceling the children’s cell phones. She testified that
she stopped paying for their cell phones because she was trying to save money to buy
L.K. a car and some personal items. (Tr., p. 321.) When the court issued remedial orders
for Appellee to deliver pre-paid cell phones to the children and for Appellant to insure that
the children received the phones and used them to contact Appellee, although Appellant
gave the phones to the children she later disobeyed the order by returning the phones to
Appellee, unused. The court ordered Appellant to provide Appellee with all contact
information within 30 days, particularly regarding counseling. She admitted she did not.
(Tr., p. 327.) Appellant interfered with visitation by leaving it solely up to the children
whether they would attend court-ordered meetings or have any interaction or parenting
time with Appellee. Appellant also disobeyed the order for reunification counseling, again
stating that she left the decision up to the children. According to Appellant, since the
children did not wish to take part, she discontinued taking them.
{¶34} Any combination of these changes provided the necessary proof of change
of circumstances allowing for a modification of custody. In addition, the sheer
accumulation of missed visits, phone calls, and counseling sessions that had amassed
since the prior custody order (even though this had also been going on earlier to some
degree) provides strong evidence of a change in circumstances. Both parties agreed that
it had been five-and-one-half years since Appellee was permitted to have companionship
in the manner ordered by the court.
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{¶35} Appellant contends that the trial court gave only two reasons for deciding
there was a change of circumstances: the passage of time, and Appellant’s violation of
court orders. Appellant complains these two reasons, by themselves, are not sufficient
to support a change of circumstances. Appellant is mistaken in her belief the court
provided only two reasons for its decision, here. Even if Appellant’s characterization of
the court’s ruling was correct, those two reasons are enough to support a finding of a
change of circumstances. The passage of time, combined with other pertinent factors,
has been sufficient to support a change of circumstances. B.C. v. S.D., 2021-Ohio-2963,
¶ 18 (5th Dist.). In this case, the court determined that L.K. was old enough to be able to
decide that he did not want further forced contact with Appellee. C.K., on the other hand,
was willing to reestablish a bond with Appellee. The maturation of the children informed
the court’s decision regarding a change in circumstances. Combined with all the other
circumstances that changed, as mentioned above, the record in this case fully supports
the court’s decision, here.
{¶36} In Appellant’s brief she spends a great deal of time discussing the fact that
she was not represented by counsel at the hearings on November 19, 2025 and January
7, 2026. Although this is true, the record shows that Appellant had been represented by
counsel for much of the litigation in this case. She was represented at various times by
at least nine attorneys throughout these proceedings. On June 20, 2025, Appellant filed
a request for appointed counsel. As Appellant filed a blank affidavit of income and
expenses, counsel could not be, and was not, appointed. The court gave Appellant
opportunities to file the necessary paperwork in order to be considered eligible for courtappointed counsel, but at the January 7, 2026 hearing she told the judge that she just
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forgot to file her paperwork. (1/7/26 Tr., p. 133.) The hearing then proceeded with
Appellant acting pro se. There is nothing in the record to indicate that Appellant should
have had counsel appointed or that the court hindered Appellant from obtaining counsel.
Appellant clearly chose to represent herself in this litigation after March of 2025, and thus
does not provide a basis for error.
{¶37} Appellant’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CONCLUDED
THAT CHANGING C.K.’S RESIDENTIAL PLACEMENT TO FATHER
SERVED C.K.’S BEST INTEREST AND THAT THE ADVANTAGES OF
THE CHANGE OUTWEIGHED ITS LIKELY HARM.
{¶38} In Appellant’s second assignment of error she attacks the court’s conclusion
that a change of custody was in the child’s best interests. After the court has found a
change in circumstances has occurred it must then determine whether a reallocation of
parental rights and responsibilities is in the child’s best interests. R.C. 3109.04(E)(1)(a).
The court must retain the current residential arrangement unless a change is both in the
best interests of the child, and one of the three conditions of R.C. 3109.04(E)(1)(a)(i)-(iii)
is met. In this case, the court relied on condition (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.
{¶39} As mentioned earlier, a trial court’s ruling on the best interest of the child is
reviewed for abuse of discretion. Miller at 74; Smarrella v. Smarrella, 2015-Ohio-837,
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¶ 11 (7th Dist.). “[T]he reviewing court in such proceedings should be guided by the
presumption that the trial court's findings were indeed correct.” Miller at 74.
{¶40} The factors in R.C. 3109.04(F)(1) guides the court in making a best interests
ruling when a change of custody is being considered. In re C.D., 2012-Ohio-4494, ¶ 66
(7th Dist.). There is a “presumption of correctness that adheres to a trial court's decision”
in child custody matters. Ketchum v. Ketchum, 2003-Ohio-2559, ¶ 23 (7th Dist.).
Nevertheless, the record must show that the court at least considered R.C. 3109.04(F)(1)
in its decision. In re Jeffreys, 2002-Ohio-703 (7th Dist.). The court is not required to
discuss irrelevant factors. Smarrella at ¶ 33. Additionally, the court “shall consider all
relevant factors, including, but not limited to” the specifically enumerated factors. R.C.
3109.04(F)(1).
{¶41} Of particular interest in this case are R.C. 3109.04(F)(1)(f) (“The parent
more likely to honor and facilitate court-approved parenting time rights or visitation and
companionship rights[.]”) and (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[.]”). These two
factors can be crucial, or even overriding, in a best interests analysis. Ensell v. Ensell,
2010-Ohio-5942, ¶ 34 (7th Dist.). These factors are of primary importance when the
record shows, as is true in the instant case, that the residential parent violates courts
orders because he or she has allowed the children to decide by themselves whether they
want to take part in visitation, companionship, communication, counseling, or any other
court-ordered activity. Smarrella at ¶ 31; Ensell at ¶ 34.
Case No. 26 MA 0009
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{¶42} The trial court reviewed the factors of RC 3109.04 (F)(1) to determine
whether it was in the best interests of the children to designate Appellee as the residential
parent:
{¶43} A. 3109.04(F)(1)(a) – wishes of parents. In this case, both parents wanted
to be designated as the residential parent. The court found that Appellee would facilitate
communication and visitation between Appellant and C.K., whereas Appellant sought to
further limit Appellee’s contact with the children. This factor weighs heavily in favor of
changing custody.
{¶44} B. 3109.04(F)(1)(b) – wishes of children. The children were interviewed incamera. L.K. did not desire to have forced contact with Appellee. C.K. was willing to
have limited contact. Because Appellant is unwilling for Appellee to have any contact
with C.K., this factor weighs in favor of a change of custody.
{¶45} C. 3109.04(F)(1)(c) – children's interaction with parents, siblings and
others. The children are attached to Appellant, and have almost no interaction with
Appellee, mainly due to Appellant’s actions. Appellant is overprotective, and struggles to
maintain control over the lives of the children. There was no evidence of interaction with
other family members on Appellant’s side of the family. The children have had no
opportunity for contact with Appellee’s family. Although it is not guaranteed that a change
of custody would overcome all the detrimental aspects of the current situation, it would at
least give C.K. a chance to develop a more normal relationship with both parents, and
weighs in favor of a change in custody.
Case No. 26 MA 0009
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{¶46} D. 3109.04(F)(1)(d) – children's adjustment to home, school, and
community. The children struggle in school, particularly L.K. Appellee testified that he
would likely send the boys to a different school. This factor appears to favor neither party.
{¶47} E. 3109.04(F)(1)(e) – mental and physical health of all parties. Appellee
has no mental or physical health issues and is in good health. Appellant has high blood
pressure, but no other issues that would impact her ability to care for the children.
Although not mentioned by the court, it is clear that the parents and the children required
counseling. Appellant was not willing to participate in, or facilitate, any such counseling.
Appellee, on the other hand, understood that counseling would be good for the boys and
was willing to facilitate it. This factor weighs in favor of change in custody.
{¶48} F. 3109.04(F)(1)(f) – facilitation of parenting time and visitation. Appellee
assured the court that he would honor parenting time with Appellant. Appellant did not
make a similar assurance and repeatedly stated that she would not cooperate with
visitation and the children’s contact with Appellee if the children did not want it. Appellant
failed to cooperate with telephone time, scheduled visits with Appellee, counseling visits,
and any interaction that Appellee was permitted to have with the children regardless of
whether that interaction was ordered by the court. This factor weighs very heavily in favor
of a change in custody.
{¶49} G. 3109.04(F)(1)(g) – child support. Child support is current.
{¶50} H. 3109.04(F)(1)(h) – convictions for child abuse or domestic violence. The
court determined this factor was not applicable.
{¶51} I. 3109.04(F)(1)(i) – denial of parenting time. Appellant has willfully denied
Appellee parenting time related to visitation, FaceTime chats, visits for dinner, and
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counseling. Most of the testimony Appellant gave at the change of custody hearing
involved the many ways in which she denied Appellee parenting time. This factor also
weighs very heavily in favor of the change of custody.
{¶52} J. 3109.04(F)(1)(j) – relocation. Neither parent has immediate relocation
plans.
{¶53} Clearly, the majority of the factors cited above weigh either partially or
heavily in favor of the change of custody. The court may consider factors in addition to
those specifically listed in R.C. 3109.04(F)(1)(a)-(j). Bonar v. Boggs, 2002-Ohio-7173, ¶
30 (7th Dist.). “R.C. 3109.04(F)(1) sets forth a nonexclusive list of factors that the trial
court must consider in evaluating the best interests of the children[.]” Myers v. Myers,
2003-Ohio-3552, ¶ 44 (7th Dist.). The court determined that the hostility between the
parents had increased in amount and intensity since the prior order, and has become
more disruptive, largely due to Appellant’s behavior. This behavior completely interfered
with Appellee’s ability to have any type of parenting time. It has impacted the emotional
well-being of the children in a negative manner. The court determined that it was
necessary for the well-being of the children that they have some contact with Appellee.
“The Court feels very strongly that Plaintiff needs to be involved” in the children’s lives,
and “the only way this is going to happen is to grant a modification in parental rights.”
(1/28/26 J.E., p. 16.) Given that the current custody situation was detrimental to the
children, the best interests of the children required a change of custody. The court
specifically found that the change of custody was in the best interests of the children and
that harm from the change in custody did not outweigh the benefits of retaining Appellant
as residential parent.
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{¶54} It is apparent from the record that the change of custody was the trial court’s
attempt to break the cycle of discord and disruptive behavior, predominantly caused by
Appellant, that has existed in this case since the divorce. The primary concern regarding
this issue is that it was in the children’s best interest to have consistent, meaningful,
positive interaction with both parents, which was not occurring and would not occur if
Appellant remained as the sole custodial parent.
{¶55} Appellant contends there was no evidence that lesser remedies, other than
a change of custody, would fail, but she has not cited to any rule or court case in which
lesser remedies are required before the court reallocates parental rights. Appellant cites
Depascale, supra, because in that case, while the trial court did not order a change in
custody the court found it was reasonable to apply less disruptive changes. Id. at ¶ 65.
In Depascale, though, the court held there was no change of circumstances, so the court
did not reach the best interests of the children test. Additionally, Depascale is silent as
to whether lesser remedies must be considered by the trial court before reallocating the
custodial parent. It is clear in the instant appeal that the trial court attempted several
lesser remedies, but Appellant refused to facilitate Appellee’s companionship under any
of the court’s many orders.
{¶56} Appellant also argues that the record repeatedly shows how little contact
Appellee has with the children, making it unreasonable that he should become the
residential parent. The record and the analysis of the trial court show Appellant is at fault
in Appellee’s lack of contact with the children. Thus, this fact cannot be used as a reason
to avoid a change of custody. This is obviously a difficult case, particularly when it will
result in one child residing with mother and one with father. Simply because a case is
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difficult, though, does not reflect that the court abused its discretion in arriving at the
outcome.
{¶57} Appellant’s second assignment of error is without merit and is overruled.
Conclusion
{¶58} Appellant appeals the trial court’s decision to grant Appellee’s motion for
custody of his younger child C.K. Appellant argues that there was no change in
circumstances to allow the court to reallocate parental rights, and that granting Appellee
custody of C.K. was not in the child’s best interest. The record fully supports the trial
court’s judgment, here. There was a change in circumstances, in that Appellant
completely denied any type of companionship or contact between Appellee and the
children, and she repeatedly refused to obey numerous court orders involving Appellee’s
contact with the children, among other facts. The court thoroughly reviewed the best
interest factors of R.C. 3109.04(F)(1) and determined that Appellee must have
companionship with his children and the only way to facilitate this is through naming
Appellee as the residential parent of C.K. Appellant's assignments of error have no merit
and the judgment of the trial court is affirmed.
Robb, J. concurs.
Dickey, J. concurs.
Case No. 26 MA 0009
[Cite as Klingensmith v. Klingensmith, 2026-Ohio-3078.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio,
is affirmed. Costs to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.