Opinion
No. 70-322
Decided July 14, 1971.
Divorce and alimony — Custody of minor child — Change of custody order — Appeal.
APPEAL from the Court of Appeals for Geauga County.
The parties herein were divorced in Geauga County on March 12, 1966. At the time of the divorce there were two adopted children, Lyn and Sharyn. The decree granting a divorce to the father incorporated a separation agreement giving the custody of the children to the mother.
The children have been residing with the mother in Milwaukee, visiting the father during the summer vacation and at Christmas. On December 27, 1968, the mother filed a motion in the Geauga County Common Pleas Court seeking to have the father declared guilty of contempt for alleged arrearages in support payments and for failing to pay a bill for alleged extraordinary medical services rendered to Sharyn. On January 13, 1969, the father filed a motion for change of custody of both children.
The motion for change of custody of Lyn, now aged 15, was withdrawn by the father at the time of trial on August 13, 1969. The Common Pleas Court granted the motion of the father to change the custody of Sharyn, now aged 13.
The mother appealed the change of custody order to the Court of Appeals, which reversed.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Davis Young and Mr. Robert L. Baker, for appellant.
Mr. John M. Drain, for appellee.
The motion to certify herein was allowed on the premise, as claimed by appellant, that the action of the Court of Appeals was a reversal solely on the weight of the evidence. It is the claim of appellant that under such circumstances the Court of Appeals could only remand for new trial, and that Section 3 (B)(1)(f), Article IV of the "modern courts" amendment of the Ohio Constitution does not broaden the authority of the Court of Appeals; that the Court of Appeals therefore erred in failing to remand for new trial. As to such question see Baxter v. Baxter (1971), 27 Ohio St.2d 168, also decided this day.
In the instant case we conclude that no question as to the weight of the evidence is involved. A Common Pleas Court does not have an absolute discretion to change a previous award of custody of a minor child. Such a change must be based on a finding of a "change of conditions." Dailey v. Dailey (1945), 146 Ohio St. 93; Trickey v. Trickey (1952), 158 Ohio St. 9. Here the Court of Appeals found "no evidence" of such change. A finding of no evidence does not involve the weighing of evidence.
We affirm the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.