COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69768 GEORGE FILIPPAKIS, : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BETTY FILIPPAKIS, : : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Domestic Relations Division Court Case No. D-223644 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: S. ROBERT E. LAZZARO JOHN W. HICKEY, Esq. Costanzo & Lazzaro 3794 Pearl Road 13317 Madison Avenue Cleveland, Ohio 44109 Lakewood, Ohio 44107 Guardian Ad Litem: MARTHA V. KIM 400 Terminal Tower Cleveland, Ohio 44113 - 2 - PER CURIAM: Betty Filippakis appeals from an October 3, 1995 order of the Domestic Relations Court which removed her as custodian of her nine year old son, Michael, and designated George Filippakis, as the residential parent and legal custodian. On February 8, 1994, when the parties divorced, the court designated appellant as residential parent. Four months later, on June 15, 1994, appellee filed a motion to modify the parenting award alleging a change in the circumstances of the child due to the fact he had moved to his grandmother's home. A court referee conducted hearings on this matter on both March 17 and August 18, 1995, and then issued an interim order and report designating George Filippakis as the residential parent and legal custodian of the minor child which caused an immediate transfer of parental rights and responsibilities and changed Michael's place of residence from his mother's house to his father's house. Appellant objected to the referee's report and, on October 3, 1995, the court overruled those objections and made the interim order of the referee a final judgment of the court and designated Michael's father as his residential parent and legal custodian. From the court's order, appellant now appeals and assigns three errors for our review. The first assignment of error states: - 3 - I. THE TRIAL COURT ERRED IN ENTERING AN ORDER MODIFYING CUSTODY WHERE THE PLAINTIFF-FATHER FAILED TO FILE THE MANDATORY PARENTING PROCEEDING AFFIDAVIT AS REQUIRED PURSUANT TO O.R.C. 3109.27 TO INVOKE THE JURISDICTION OF THE COURT. Appellant argues that the court erred in designating appellee as the residential parent and legal custodian in this case because appellee failed to file a parenting affidavit as required by statute and therefore the court lacked jurisdiction to hear this matter. Appellee contends the court had jurisdiction to act because the required affidavit was filed with the motion to modify and further, appellant failed to raise this objection at trial and thus waived this claim. Thus, the issues for our review are whether, in the absence of a parenting affidavit, the trial court had jurisdiction to hear this motion and whether the appellant waived her objection by not raising this issue in the trial court. At the outset, we note a question of fact exists whether appellee filed a parenting affidavit in compliance with R.C. 3109.27. R.C. 3109.27 requires a child custody affidavit to be filed in all parenting proceedings involving children setting forth the child's present address, the child's residences for the last five years and the names and addresses of all persons with whom the child has lived during that period. It further requires - 4 - information pertaining to any custody proceedings concerning the child in Ohio or another state and whether the affiant has ever been involved in any criminal child abuse proceedings, or a neglect or dependency action. Loc. R. 17(E)(1) of the Cuyahoga County Common Pleas Court, Domestic Relations Division requires that all requests for modification of an existing parenting order be supported by two affidavits, one which contains the specific facts upon which the motion is based, and the other, a R.C. 3109.27 parenting affidavit. Here, despite appellee's contention, the affidavit appended to his motion does not disclose the child's five year history of residences, reference other custody actions involving the child, nor address involvement in any abuse, neglect or dependency proceedings. Purportedly, however, it fulfills the requirements of Loc. R. 17(E)(1). Appellee's apparent failure to comply with R.C. 3109.27, notwithstanding, we conclude this assignment of error is not well taken for two reasons: first, the Ohio Supreme Court has held that the child custody affidavit is not jurisdictional and, second, appellant has waived her right to raise the issue on appeal. Stating that the purpose of R.C. 3109.27 is to avoid competing and conflicting jurisdictions in matters involving children, the court held that a failure to file an affidavit - 5 - pursuant to R.C. 3019.27 did not nullify the jurisdiction of the court to modify a prior parenting award. See In re Palmer (1984), 12 Ohio St.3d 194 at 197: If we were to deny subject-matter jurisdiction by a mechanistic interpretation of R.C. 3109.27, it would be possible for any party to completely obstruct a custody proceeding by willfully failing to file an R.C. 3109.27 affidavit or pleading. Such a result would not only contravene the clear intent of R.C. 3109.27 but could potentially render the custody statutes of this state a nullity. Moreover, such a result would hamstring our long-established rule that ultimately the issue must be what is in the best interest of the child. In re Cunningham (1979), 59 Ohio St.2d 100 (13 O.O.3d 78). Under the present circumstances a rigid interpretation of R.C. 3109.27 would only serve to prolong the agony of the children herein. Accordingly, we conclude that the absence of a R.C. 3109.27 child custody affidavit in this case did not divest the trial court of jurisdiction to hear this matter. Finally, we note that appellant raised this issue for the first time on this appeal. Our court, in Cuyahoga Metro. Hous. Auth. v. Younger (1994), 93 Ohio App.3d 819, discussed the treatment of an assigned error which an appellant had not raised in the trial court and stated at 824: Errors not brought to the attention of the trial court are waived for the purposes of appeal when the error could have been avoided or corrected by the court. See State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364; First Fed. S. & L. Assn. of Akron v. Cheton & Rabe (1989),57 Ohio App.3d 137, 567 N.E.2d 298. Thus, we also conclude that appellant's failure to raise this objection in the trial court, constitutes a waiver of the right - 6 - to raise this issue on appeal. For these reasons, this assignment of error is overruled. Appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN ENTERING AN ORDER MODIFYING CUSTODY WHERE THE COURT FAILED TO FIND A THRESHOLD CHANGE OF CIRCUMSTANCES UPON WHICH TO PREDICATE ITS EXAMINATION OF THE ISSUE OF BEST INTEREST OF THE CHILD. Appellant asserts that the court erred in modifying the allocation of parental rights because the referee failed to find a change in circumstances, address the best interest of the child, or determine that the advantages of the change in environment outweigh the harm of such change. Appellee maintains that both the referee and the trial court found a change in circumstances since the date of the parties' divorce which necessitated an examination of the best interest of the child in this matter. The issue presented for review then is whether the court complied with the mandated statutory directives prior to ordering a change in an allocation of parental rights. We begin our analysis by observing that R.C. 3109.04(E)(1)(a) contains a presumption of retention of the court-designated residential parent. The statute directs that a court shall not modify a prior decree allocating parental rights - 7 - unless it finds a change in circumstances of the child or the residential parent and, that modification is necessary to serve the best interest of the child. It further affirmatively mandates that the court shall retain the residential parent unless a modification is in the best interest of the child and either the parties consent to the change or the harm likely to be caused by a change of environment is outweighed by the advantages of the change to the child. In its order in this case, the trial court overruled the appellant's objections, made the interim order of the referee a final judgment of the court, and then designated appellee as residential parent and legal custodian. However, because the referee made no findings regarding the child's best interest or whether the advantages of the change of environment outweigh the harm to the child, the record before us does not contain the judicial findings mandated by R.C. 3109.04 (E)(1)(a). Therefore, we conclude that the trial court erred in modifying the allocation of parental rights and responsibilities in this case because it failed to make the specific findings mandated by statute. Accordingly, this assignment of error is well taken, the judgment of the trial court is reversed, Betty Filippakis is reinstated as residential parent, and George Filippakis is ordered to return Michael to her forthwith. Appellant's third assignment of error states: - 8 - III. THE MANIFEST WEIGHT OF THE EVIDENCE FAILS TO SUBSTANTIATE THAT THE MODIFICATION WAS NECESSARY TO SERVE THE BEST INTEREST OF THE CHILD. Pursuant to App. R. 12, this assignment of error is rendered moot by the conclusions reached in our analysis of the second assignment of error and therefore we are not required to decide or rule upon it. In accordance then, with the foregoing analysis, the judgment of the trial court is reversed. Betty Filippakis is hereby reinstated as the residential parent and legal custodian of the minor child, Michael, and George Filippakis is ordered to return him to her forthwith. This matter is remanded to the trial court for any necessary proceedings consistent with this opinion. Judgment reversed and remanded. - 9 - This cause is reversed and remanded to the lower court for any necessary proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court 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. TERRENCE O'DONNELL, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .