COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71892 CHERYL L. RICHTER : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ROBERT J. CASPER, JR. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 18, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-225,435 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: RICHARD S. KOBLENTZ Attorney at Law 75 Public Square #1025 Cleveland, Ohio 44113 For defendant-appellee: ROBERT J. CASPER Attorney at Law 5902 Westerbrook Drive Brook Park, Ohio 44142 TIMOTHY E. McMONAGLE, J.: -2- Plaintiff-appellant Cheryl L. Richter appeals from the decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, wherein the court overruled appellant's motion to show cause and sua sponte modified appellee's visitation rights with his minor son. For the reasons stated below, we reverse the decision of the trial court that modified the agreed visitation schedule of the parties. The record reflects that the parties were divorced on September 15, 1994. Appellant was granted sole custody of the parties' only child, with appellee granted visitation rights on alternating weekends and alternating holidays. On January 10, 1996, appellant filed a request for modification of visitation. On April 24, 1996, the motion for modification of visitation was settled and dismissed in an agreed judgment entry except to the extent that the court retained the authority to modify weekday visitation following an in camera interview with the minor child. On July 18, 1996, appellant filed a motion to show cause relating to visitation, complaining that appellee unilaterally changed visitation times. On December 13, 1996, a hearing was held on appellant's motion to show cause. On December 18, 1996, the trial court issued its decision on the matter, finding in favor of appellee and dismissing appellant's motion to show cause and modifying appellee's visitation rights. Appellant timely appeals and presents two interrelated assignments of error for our review, each challenging the court's modification of visitation. ASSIGNMENT OF ERROR NO. I -3- THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT MODIFIED THE VISITATION RIGHTS OF APPELLEE- FATHER AS A RESULT OF A CONTEMPT HEARING WHEN THERE WAS NO NOTICE THAT THE RESULTS OF THE HEARING MAY BE SUCH A MODIFICATION AND WHEN THE TRIAL COURT HAD NO JURISDICTION TO MODIFY VISITATION. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED THE VISITATION RIGHTS OF APPELLEE- FATHER WHEN NO EVIDENCE WAS PROVIDED DEMONSTRATING A SIGNIFICANT CHANGE OF CIRCUMSTANCES MAKING A MODIFICATION IN THE BEST INTEREST OF THE MINOR CHILD. Appellant, in her first assigned error, complains that the trial court lacked jurisdiction to modify visitation, asserting that modification of visitation may only be accomplished after notice and a hearing on the motion. We agree. The preliminary question presented for our review is whether the trial court had jurisdiction to modify the visitation schedule. A court from which a visitation order has been issued has continuing jurisdiction over the visitation of the minor child, and the continuing jurisdiction shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under rules 4 to 4.6 ***. Civ.R. 75(I). Failure to comply with the service requirements of Civ.R. 75(I) precludes a court from exercising jurisdiction in an action for modification of child support. Satava v. Gerhard (1990), 66 Ohio App.3d 598. Modification of visitation or support may be accomplished only after notice and a hearing on such motion. Andrulis v. Andrulis (1985), 26 Ohio App.3d 164; McGann v. McGann (Oct. 24, 1991), Cuyahoga App. No. 59197, unreported. -4- Further, once a court has jurisdiction to modify visitation, R.C. 3109.04 governs such modification of parental visitation orders. Jacobs v. Jacobs (1995), 102 Ohio App.3d 568. Pursuant to 3109.04(E)(1)(a), a court cannot modify a prior decree that allocates parental rights and responsibilities for the care of a child, including parental rights to continuing contact with that child, unless it finds, first, that a change in circumstances has occurred and, then, that the modification is necessary to serve the best interest of the child. Id. Once a determination has been made that a specific visitation plan is in the best interest of a child, a rule that requires a change of circumstances before the plan can be modified appeases the need for permanency, continuity and stability in an otherwise volatile situation. Id. at 576. With these standards in mind, we review the actions of the trial court. The record reflects that the agreed visitation order signed April 24, 1996 indicates that the appellee/father shall have visitation on alternate weekends from Fri. 6:00 to Sun. 6:00 and every Wed. from 5:00 to 8:00 *** with Wed. evening visitation subject to further order of the court after an in camera interview is conducted with the judge wherein he will interview the child in chambers with only counsel present. The judge thereafter will make a ruling solely limited to weeknight visitation which the parties will abide by. No additional motion to modify visitation was filed in this matter; however, appellant filed a motion to show cause, alleging that appellee violated the agreed visitation order -5- by unilaterally altering the visitation times when he picked up his son at school at dismissal on Wednesdays and Fridays, which is earlier than the times designated in the agreed judgment entry. At the hearing held on appellant's motion to show cause, both parties testified that appellee did, in fact, pick the child up at school at the end of the school day, which was earlier than the designated visitation times stated in the agreement. Despite appellee's admission that he unilaterally changed the times of visitation as designated by agreement, the court found in his favor, dismissed appellant's motion to show cause and, over appellant's objection, based upon the evidence which he heard, ordered a modification of visitation allowing appellee to pick the child up at school at 3:15 p.m. with drop-off at 9:30 p.m. whenever he had visitation. When we apply the law as stated above to the facts of the matter before us, we find that where no motion to modify visitation was filed with the court and properly served upon the parties invoking the jurisdiction of the court, then the trial court exceeded its authority when it modified the visitation agreement without the jurisdiction to do so. While we find that the request of the appellee for the 3:15 pick-up at school may well be reasonable, the court had no jurisdiction; therefore, we find appellant's first assignment of error well taken. In her second assigned error, appellant contends that the trial court abused its discretion when it modified visitation rights without demonstrating a significant change of circumstance -6- making the modification in the best interest of the child. The record reflects that no evidence was presented to support a claim of change of circumstance and no finding was made that a change in circumstance warranted a review of the visitation agreement. The prior agreement having been made to satisfy the best interest of the child, without a change in circumstance, the visitation plan may not be modified. [A] change in circumstances is a statutory prerequisite to modification of all orders allocating parental rights and responsibilities ***. Jacobs, supra, 577. However, consistent with our determination that appellant's first assigned error is well taken and the court was without jurisdiction to modify the visitation order, we need not reach the question of whether such modifications are supported by a change in circumstance or whether such modifications were in the best interest of the child. We find, under these circumstances, appellant's second assigned error to be moot. Accordingly, we find appellant's first assigned error is well taken and the modification of visitation ordered by the court is vacated. The agreed judgment entry regarding the visitation schedule remains in full force and effect to the extent that it may be modified after the court conducts an in camera interview with the child as was contemplated in the entry. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her 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. DAVID T. MATIA, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .