COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70937 DONALD G. WILLIS : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CLARA WILLIS, n.k.a. : CLARA RUDOLPH : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations No. D-200654 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN V. HEUTSCHE John V. Heutsche Co., L.P.A. 500 Courthouse Square 310 Lakeside Avenue, West Cleveland, Ohio 44113-1021 For Defendant-Appellee: VINCENT A. STAFFORD Stafford and Associates 380 Lakeside Place 323 Lakeside Avenue, West Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Donald G. Willis appeals from the June 12, 1996 judgment of the Domestic Relations Division of Common Pleas Court denying his post-decree motion to award him custody of his eleven-year-old son, Malcolm, and limiting his award of attorney fees to only One Thousand Dollars ($1,000), where the parties had stipulated to the reasonableness of his itemized $8,185 attorney fee statement. The record reflects the parties, Willis and Clara Rudolph, were married in 1984, conceived one child, Malcolm, and have lived separate and apart during a considerable portion of their marriage. When they divorced in 1990, the court awarded custody of Malcolm to Clara, and visitation rights to Willis. The record before us is replete with motions for enforcement of visitation rights, change of custody and attorney fees. After conducting a hearing on the latest series of these motions, the magistrate left the court's employment without rendering a recommendation to the court. The trial court afforded the parties the opportunity to either retry all matters de novo or submit the matter to the court by stipulation. The parties chose the latter option and stipulated the matter to the court, "upon the transcript of the hearing before the Magistrate." The trial court then denied the motion to modify custody, found Rudolph in contempt, and ordered her to pay $1,000 toward - 3 - Willis' attorney fees. Willis now appeals and raises three assignments of errors for our review. The first assignment of error states: I. THE COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD PLAINTIFF/APPELLANT CUSTODY OF MALCOLM WHEN THE EVIDENCE WAS UNCONTROVERTED. Willis argues here that since his uncontradicted testimony regarding Rudolph's continual interference with his visitation rights established a change of circumstances, the domestic relations court erred in not modifying the custody decree. Rudolph, on the other hand, asserts that the trial court did not err in denying the motions to modify custody because Willis failed to demonstrate a change of circumstances sufficient to warrant a modification of custody. The issue for our consideration concerns whether the trial court properly followed the statutory directives regarding allocation of parental rights when it denied Willis' request to modify its previous order awarding custody of Malcolm to Rudolph. R.C. 3109.04 concerns the allocation of parental rights and states in pertinent part as to a modification of such rights: (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***that a change has occurred in the circumstances of the child, his residential parent, or either of the parents subject to a shared parenting decree, and that the modification - 4 - is necessary to serve the best interests of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree***unless a modification is in the best interest of the child and one of the following applies: (i) The residential parent agrees to change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent. (ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent. (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. Since the facts in this case reflect that subsections(i) and (ii) do not apply, the court should not modify an existing decree unless it finds a change in the circumstances of the child, that modification of custody is in the best interest of the child, and that any harm likely to be caused by the change of environment is outweighed by the advantages of the change to the child. The Ohio Supreme Court in Davis v. Flickinger (1997), 77 Ohio St.3d 415, after noting that various lower courts have interpreted the meaning of "change in circumstances" as requiring a substantial change, concluded that "*** R.C. 3109.04 requires only a finding of a 'change of circumstances' before a trial court can determine the best interest of the child in considering a change of custody. Nowhere in this statute does the word 'substantial' appear." - 5 - In its order in this case, the trial court stated: The Court finds, based on its conclusions reached above, that Plaintiff has not established the necessary substantial change of circumstances required to determine that it would be in the best interest of Malcolm to grant Plaintiff a modification of custody as required by Ohio Revised Code 3109.04. (Emphasis added.) Since the trial court based its finding upon a substantial change of circumstances, we are obligated to remand the matter for a reconsideration in conformity with Davis v. Flickinger, supra. Accordingly, this assignment of error is well taken. The second assignment of error states: II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT CONSIDERED MATTERS OUTSIDE OF THE EVIDENCE AND OUTSIDE OF THE PARTIES' STIPULATION. Appellant urges that the trial court erred when it considered matters contained in the court record, but which were outside the confines of the stipulation under which the matter was submitted to the trial court for a decision after the trial magistrate had heard the evidence, but left the court's employ without rendering a decision. The appellee urges, however, that a presumption of validity attends the actions of the trial court in rendering a verdict. Our court then is here asked to consider the propriety of the action of the trial court in its consideration of evidence properly found in the court record, but which was not part of the - 6 - transcript of the hearing before the trial magistrate. Stated differently, we are asked to consider whether in this case, the parties properly controlled or limited the evidence upon which the court could render its decision. The issue is one of general interest because the matters relied upon by the court in rendering its decision were not raised during the hearing and hence were not subject to cross-examination by appellant's counsel. We recognize that any court has inherent power to review matters properly contained in the file of a pending case. It is generally conceded that the parties cannot by stipulation interfere with the court's discharge of its duty to consider the best interest of the child in rendering its judgment. A trial court must weigh all the statutory factors and all other relevant factors in determining the child's best interest. In re Whitaker (1988), 36 Ohio St.3d 213. Matters of child custody may only be decided by the trial court regardless of any agreement entered into by parties. Pulfer v. Pulfer (1996), 110 Ohio App.3d 90. A trial court commits prejudicial error when it fails to consider all relevant circumstances of the parties at the time of the custody determination. Van Hook v. Van Hook (1985), 26 Ohio App.3d 188. Hence, the court had a duty to consider all relevant evidence including the case history in determining the best interest of the child. Accordingly, this assignment of error is not well taken. - 7 - The third assignment of error states: - 8 - III. THE COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD PLAINTIFF/APPELLANT ALL OF THE ATTORNEY FEES WHICH HE REQUESTED. Willis argues the trial court abused its discretion by only awarding a portion of the requested amount of attorney fees when Rudolph stipulated that his itemized fee statement was "quite reasonable." Rudolph submits that since a trial court cannot rely upon a stipulation by a party of an attorney fee statement in awarding such fees in an action, the court here did not abuse its discretion by not awarding the full amount requested. The issue is whether the trial court abused its discretion in only awarding a portion of the stipulated amount of attorney fees. "An award of attorney fees is within the discretion of the trial court. (Citations omitted.)" Nori v. Nori (1989), 58 Ohio App.3d 69, 75. "An appellate court will not disturb the judgment of a trial court as to a discretionary matter absent an abuse of discretion." Tanner v. Tom Harrigan Chrysler Plymouth, Inc. (1992), 82 Ohio App.3d 767, 769. "The term abuse of discretion connotes more than an error of law or judgment: it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157. In Nori, supra, the court affirmed a domestic relations court's decision to award only $625 of a $937.50 request for - 9 - attorney fees even though the parties had stipulated to the reasonableness of the full amount. The court in Nori, determined that despite the fact that the parties may have agreed to the reasonableness of the fees, "***the amount of the award is still within the discretion of the trial court." Id. at 75. Further, the court concluded that "the simple fact, without more, that the trial court did not award the amount stipulated [did] not amount to an abuse of discretion." Here, however, although Rudolph stipulated the $8,185 fee was reasonable, the trial court awarded only $1,000, "*** in con- sidering the parties' ability to pay attorney fees and equities of this case ***." Since this statement of the court is not supported by evidence in the record, we believe the matter should be remanded for a hearing on the parties' ability to pay. Accordingly, this assignment of error is also well taken. In accordance then, with the foregoing analysis, the judgment of the trial court is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion. - 10 - This cause is reversed and remanded to the lower court for further 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. PORTER, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also .