Clyburn v. Gregg

[Cite as Clyburn v. Gregg, 2011-Ohio-5239.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

Mark P. Clyburn, :
:
Plaintiff-Appellee, :
: Case No. 11CA3211
v. :
: DECISION AND
Heidi Jo Gregg, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: October 7, 2011
________________________________________________________________

APPEARANCES:

Jennifer L. Ater, Ater, Schmidt & Wissler, LLP, Chillicothe, Ohio, for Appellant.

Robert J. Judkins, Judkins & Hayes, LLC, Greenfield, Ohio, for Appellee.
________________________________________________________________

Kline, J.:

{¶1} Heidi Jo Gregg (hereinafter the “Mother”) appeals the judgment of the Ross

County Court of Common Pleas, Juvenile Division. Mother contends that the trial court

erred by finding Mother in contempt of court. Because no penalty has been imposed

against Mother for her contempt citation, there is no final appealable order. Thus, we

lack jurisdiction to consider Mother’s assignment of error challenging her contempt

citation. Next, Mother contends that the trial court erred (1) by terminating the Shared

Parenting Plan that governed the parental rights concerning Mother’s and Mark

Clyburn’s (hereinafter the “Father”) minor child and (2) by designating Father as the

child’s residential parent. Because the trial court did not abuse its discretion when it

determined that it was in the child’s best interest to terminate the Shared Parenting Plan

and designate Father as the child’s residential parent, we disagree. Mother next
Ross App. No. 11CA3211 2

contends that the trial court erred when it failed to award Mother parenting time in

excess of the trial court’s standard companionship schedule. Because the evidence

demonstrates that the trial court did not abuse its broad discretion in making custody

determinations, we disagree. Next, Mother contends that the trial court erred when it

failed to find Father in contempt of court. Because the evidence was insufficient to find

that Father disobeyed any of the trial court’s orders, we disagree.

I.

{¶2} Mother and Father are the parents of a minor child (hereinafter the “Child”).

Child was born on October 14, 2005. Mother and Father have never been married. On

November 9, 2006, the juvenile court approved a Shared Parenting Plan for Mother and

Father regarding Child’s care. Under the plan, Child resided primarily with Mother, and

Mother was designated the primary parent for pre-school and school placement

purposes. Child resided with Father on alternate weekends plus a three-hour visitation

one day a week. After Child reached eighteen months of age, Child’s three-hour

visitation increased to twice a week. The plan also called for Father to have

consecutive-week visitations beginning in Summer 2007. Over time, the communication

between Mother and Father steadily deteriorated. As a result, the parties have engaged

in extensive litigation regarding the care and custody of Child.

{¶3} As indicated, the Shared Parenting Plan governed, among other things,

Father’s visitation with Child for Summer 2007. The plan entitled Father to three

consecutive weeks with Child. And “said weeks [were] to be agreed upon by the parties

no later than May 13, 2007, making every reasonable effort to accommodate each
Ross App. No. 11CA3211 3

other’s work/school/vacation schedules and to be exercised around Mother’s and

Father’s Birthdays.” Article V, Section E, of the Shared Parenting Plan.

{¶4} Mother and Father did not agree on Father’s summer 2007 visitation with

Child by May 13, 2007. So on May 16, 2007, Father provided Mother written notice of

the three weeks he intended to have Child for the summer. Mother informed Father

that, because there had not been an agreement regarding summer visitation by May 13,

Mother was denying Father his entire three-week summer visitation.

{¶5} After this dispute, Father and Mother began filing a series of motions against

each other. On July 18, 2007, Father filed a contempt motion against Mother regarding

the denial of his summer visitation. And Mother filed a Motion for Ex Parte Relief and a

Motion to Terminate Shared Parenting and Allocate Parental Rights on October 11,

2007. The basis for Mother’s ex parte motion was that, allegedly, Father was physically

abusing Child. (A magistrate held hearings on this matter in March 2008 and

determined that there was insufficient evidence of the alleged abuse.)

{¶6} On October 22, 2007, Father filed a Motion to Review and Modify the Shared

Parenting Plan and a Motion for Psychological Examination of the Parties. And on

November 28, 2007, Father filed a supplemental contempt motion, which related to

alleged additional instances where Mother denied Father visitation with Child. Mother

then filed a contempt motion against Father on December 4, 2007, for Father’s alleged

failure to pay his share of Mother’s medical bills and to provide Child with health

insurance. And on April 2, 2008, Father filed a Motion to Terminate the Shared

Parenting Decree and Designate Father as Residential Parent.
Ross App. No. 11CA3211 4

{¶7} In addition to the disputes regarding visitation, Mother and Father disagreed

about Child’s developmental delays. When Child was nearly two years old, Father

expressed to Mother his concern that Child’s speech development was delayed.

Mother disagreed and asserted that Child had a vocabulary of about seventy-five words.

Father was unconvinced, and he eventually enrolled Child in the Highland County Help

Me Grow program when Child was about two-and-a-half years old. Child tested below

average or well below average in many developmental categories. Father instructed

the Help Me Grow staff not to inform Mother of Child’s participation in the program.

Father testified that he did this because he feared Mother would disrupt Child’s

participation.

{¶8} In her recommendation to the trial court, the guardian ad litem noted that

Child appeared to benefit from his participation in the Help Me Grow program. The

guardian indicated that Child did not speak at all when she first met Child, but his

communication improved after Father enrolled Child in the Help Me Grow program. The

guardian also noted that she believed that Mother’s “exclusion [from the Help Me Grow

program] was warranted.” Guardian ad litem’s Recommendation at 5. The guardian

noted that, upon learning of Child’s participation in the program, Mother quickly

attempted to transfer Child from the Highland County Help Me Grow program to a

program in Ross County.

{¶9} A magistrate held hearings on the pending motions over three days during

June and July 2008. Following the hearings, the guardian ad litem recommended

termination of the Shared Parenting Plan and that Father be designated as Child’s

residential parent with “liberal” visitation awarded to Mother.
Ross App. No. 11CA3211 5

{¶10} On October 29, 2008, the magistrate issued an order, which found Mother in

contempt for failing to comply with the summer visitation provisions of the Shared

Parenting Plan. And on March 12, 2009, the magistrate issued findings of fact and

conclusions of law pertaining to the remaining issues in the case. The magistrate’s

order ruled that the Shared Parenting Plan should be “vacated” and that Father be

designated the residential parent. The order also determined that Father was not in

contempt as Mother had alleged. Mother objected to the magistrate’s order. The trial

court adopted the magistrate’s order and supplemented one of the magistrate’s

conclusions of law. Mother appealed the trial court’s order, but we remanded because

the trial court’s entry was not a final appealable order.

{¶11} On August 20, 2009, the trial court issued another entry, and Mother timely

appealed. We concluded that the trial court’s entry was void for vagueness because it

was unclear whether the trial court was terminating or modifying the parties’ Shared

Parenting Plan. Thus, we dismissed the appeal for lack of a final appealable order.

See Clyburn v. Gregg, Ross App. No. 09CA3115, 2010-Ohio-4508 (hereinafter “Clyburn

I”).

{¶12} In response to our decision in Clyburn I, the magistrate issued another order

on December 6, 2010, in which he made findings of fact and conclusions of law. Mother

timely filed objections and amended objections to the magistrate’s order. And on

January 14, 2011, the trial court issued a judgment entry in which it adopted and

supplemented the magistrate’s order. The trial court ruled that the Shared Parenting

Plan be terminated, and the court designated Father as Child’s residential parent. The

trial court also granted Mother companionship pursuant to the court’s standard
Ross App. No. 11CA3211 6

companionship schedule. Finally, the trial court ruled that there was not sufficient

evidence to find Father in contempt of court.

{¶13} Mother appeals and asserts the following assignments of error: I. “The trial

court erred and abused its discretion to the prejudice of Appellant by approving the

magistrate’s decision which terminated the parties’ Shared Parenting Plan and

designated Appellee as the custodial parent of the parties’ minor child, as such was an

error of law and against the manifest weight of the evidence and an abuse of

discretion.” II. “The trial court erred and abused its discretion to the prejudice of

Appellant by approving the magistrate’s decision which failed to award Appellant

parenting time with the parties’ minor child in excess of the court’s standard

companionship schedule, as such was against the manifest weight of the evidence and

an abuse of discretion.” III. “The trial court erred and abused its discretion to the

prejudice of Appellant in failing to find Appellee in contempt of court.” And, IV. “The

trial Court [sic] erred and abused its discretion to the prejudice of Appellant in finding

Appellant in contempt of court.”

II.

{¶14} We consider Mother’s assignments of error out of order, and we begin with

her fourth assignment of error. In her fourth assignment of error, Mother argues that the

trial court abused its discretion when it found her in contempt of court.

{¶15} “In order for there to be a final order in contempt of court proceedings, there

must be both a finding of contempt and the imposition of a sanction or penalty. The

mere adjudication of contempt of court is not a final appealable order until a sanction or

penalty is also imposed.” Cooper v. Cooper (1984), 14 Ohio App.3d 327, at paragraph
Ross App. No. 11CA3211 7

one of the syllabus. See, also, Clyburn I at ¶18; Slone v. Slone, Pike App. No.

01CA665, 2002-Ohio-687 (“Until a court issues a penalty or sanction [in a contempt

case], no final appealable order exists.”).

{¶16} On October 29, 2008, the magistrate found Mother in contempt of court based

on her denial of Father’s summer 2007 visitation. That same order set the matter for

sentencing before the common pleas judge on November 6, 2008. The court eventually

continued this hearing until June 18, 2009, the same date Mother filed her notice of

appeal in Clyburn I.

{¶17} Upon review of the record, the trial court has not imposed any penalty against

Mother based on the magistrate’s ruling that Mother was in contempt. As such, there is

no final appealable order with respect to Mother’s contempt citation. Thus, we are

without jurisdiction to consider Mother’s fourth assignment of error, and we accordingly

dismiss it.

{¶18} Nevertheless, “an appeal raising issues other than the finding of contempt

may proceed according to rule as to those assignments of error not involving the trial

court’s finding of contempt.” Lalli v. Lalli (Mar. 16, 2001), Ashtabula App. No. 98-A-

0096.

III.

{¶19} In her first assignment of error, Mother contends that the trial court abused its

discretion (1) by terminating the Shared Parenting Plan because there was not a

significant change in circumstances to justify terminating the plan and (2) by designating

Father as Child’s residential parent.
Ross App. No. 11CA3211 8

{¶20} “Although a trial court must follow the dictates of R.C. 3109.04 in deciding

child-custody matters, it enjoys broad discretion when determining the appropriate

allocation of parental rights and responsibilities.” H.R. v. L.R., 181 Ohio App.3d 837,

2009-Ohio-1665, at ¶13, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74; Parker v.

Parker, Franklin App. No. 05AP-1171, 2006-Ohio-4110, at ¶23. “An appellate court

must afford a trial court’s child custody determinations the utmost respect, ‘given the

nature of the proceeding[,] the impact the court’s determination will have on the lives of

the parties concerned[, and the fact that] [t]he knowledge a trial court gains through

observing the witnesses and the parties in a custody proceeding cannot be conveyed to

a reviewing court by a printed record.’” H.R. at ¶13, quoting Pater v. Pater (1992), 63

Ohio St.3d 393, 396 (alterations sic) (other internal quotation omitted).

{¶21} Thus, we review “a trial court’s decision to terminate a shared parenting plan

under an abuse of discretion standard.” In re J.L.R., Washington App. No. 08CA17,

2009-Ohio-5812, at ¶30. An abuse of discretion connotes more than a mere error of

judgment; it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶22} Mother argues that there was not a sufficient change in circumstances to

justify the trial court’s termination of the Shared Parenting Plan. A trial court can

terminate a shared parenting plan under R.C. 3109.04(E)(2)(c), which provides: “The

court may terminate a prior final shared parenting decree that includes a shared

parenting plan approved under division (D)(1)(a)(i) of this section upon the request of

one or both of the parents or whenever it determines that shared parenting is not in the

best interest of the children. The court may terminate a prior final shared parenting
Ross App. No. 11CA3211 9

decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii)

of this section if it determines, upon its own motion or upon the request of one or both

parents, that shared parenting is not in the best interest of the children.”

{¶23} Despite Mother’s arguments, a trial court does not need to find that there was

a “change in circumstances” in order to terminate a shared parenting plan. In re J.L.R.

at ¶28 (“[T]he trial court explicitly stated that it terminated the parties’ prior shared

parenting plan under R.C. 3109.04(E)(2)(c), which does not require a change in

circumstance finding.”); see, also, Cochran v. Cochran, Lawrence App. No. 10CA15,

2011-Ohio-1644, at ¶4, fn.1; Francis v. McDermott, Darke App. No. 1753, 2009-Ohio-

4323, at ¶10; Beismann v. Beismann, Montgomery App. No. 22323, 2008-Ohio-984, at

¶8, quoting Goetze v. Goetze (Mar. 27, 1998), Montgomery App. No. 16491

(“Significantly, nothing in R.C. 3109.04(E)(2)(c) requires the trial court to find a change

in circumstances in order to terminate a shared parenting agreement.”). But, see, Sims

v. Durant, Fairfield App. No. 2008-CA-27, 2008-Ohio-6442, at ¶10.

{¶24} R.C. 3109.04(E)(2)(c) requires only that shared parenting not be in the child’s

best interest to justify a trial court’s termination of a shared parenting plan. See In re

J.L.R. at ¶31. Under R.C. 3109.04(F)(2), the factors a court must consider when

determining whether shared parenting is in the best interest of a child are as follows:

“(a) The ability of the parents to cooperate and make decisions jointly, with respect to

the children; (b) The ability of each parent to encourage the sharing of love, affection,

and contact between the child and the other parent; (c) Any history of, or potential for,

child abuse, spouse abuse, other domestic violence, or parental kidnapping by either

parent; (d) The geographic proximity of the parents to each other, as the proximity
Ross App. No. 11CA3211 10

relates to the practical considerations of shared parenting; (e) The recommendation of

the guardian ad litem of the child, if the child has a guardian ad litem.”

{¶25} R.C. 3109.04(F)(2) also directs a trial court to consider the factors

enumerated in R.C. 3109.04(F)(1) when deciding whether to terminate a shared

parenting plan. The factors from R.C. 3109.04(F)(1) relevant to the evidence presented

at trial are: “(a) The wishes of the child’s parents regarding the child’s care; * * * (c) The

child’s interaction and interrelationship with the child’s parents, siblings, and any other

person who may significantly affect the child’s best interest; (d) The child’s adjustment

to the child’s home, school, and community; (e) The mental and physical health of all

persons involved in the situation; (f) The parent more likely to honor and facilitate court-

approved parenting time rights or visitation and companionship rights; * * * (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[.]”

{¶26} (Additionally, R.C. 3109.04(F)(2) also directs trial courts to consider the

factors enumerated in R.C. 3119.23. We note, however, that the factors listed in that

statute are not pertinent to the issues presented in this appeal.)

{¶27} Mother presents several arguments in support of her claim that the trial court

abused its discretion when it terminated the Shared Parenting Plan and designated

Father as Child’s residential parent. Mother asserts that she had been Child’s primary

caregiver. She claims that she ensures that Child has a close relationship with her and

Father’s family. Mother also states that Child has become well adjusted to her home

and that she has been flexible in re-arranging parenting time for Father. Consequently,
Ross App. No. 11CA3211 11

Mother argues that “[i]t is clear that the trial court failed to consider any of [the statutory

factors from R.C. 3109.04(F)] in its custody ruling, and failed to consider the physical

abuse of the child by [Father.]” Appellant’s Brief at 14.

{¶28} The record, however, demonstrates that the trial court did consider the

statutory factors from R.C. 3109.04(F). See Judgment Entry at 6 (noting that the trial

court “considered the factors set forth in R.C. 3109.04(F)”). And after considering those

factors, the trial court determined that it was in Child’s best interest (1) to terminate the

Shared Parenting Plan and (2) to designate Father as Child’s residential parent.

{¶29} First, with regard to Mother’s allegations of child abuse against Father, the

magistrate held a separate hearing on the matter. At the conclusion of the hearing, the

magistrate determined that there was insufficient evidence to support Mother’s

accusations.

{¶30} Regarding Mother’s other assertions, there is indeed evidence to support her

arguments. The evidence shows that Mother had been Child’s primary caregiver.

Additionally, there is evidence that Mother made efforts to foster a relationship with her

family as well as with members of Father’s family. And at times, Mother had been

flexible regarding re-arranging parenting time with Father.

{¶31} The trial court’s judgment entry, however, makes clear that the court

considered a multitude of factors to reach its decision. The trial court specifically ruled

that “the evidence establishes that [Father] is able to provide a stable home for [Child]

and that [Child] has a loving relationship with [Father], [Child’s] step-mother and his

step-brother, * * * and is well adjusted in [Father’s] home. The evidence further
Ross App. No. 11CA3211 12

indicates that [Mother’s] behavior and actions have not always been in [Child’s] best

interest.” Judgment Entry at 4.

{¶32} The determination that Mother’s “behavior and actions have not always been

in [Child’s] best interest” centers around (1) Mother’s denial of some of Father’s

visitation rights and (2) Mother’s response to Child’s developmental delays. The Shared

Parenting Plan granted Father three consecutive weeks of visitation with Child during

the summer. And the plan called for the parties to agree on a summer visitation

schedule no later than May 13. In 2007, the parties were unable to agree on a

schedule, so Father notified Mother on May 16 the three weeks of visitation he intended

to take. Mother denied Father his three weeks of summer visitation for 2007, and she

based her decision on Father’s failure to notify Mother of his summer visitation plans by

May 13. While the Shared Parenting Plan does state that the parties are to agree on a

summer visitation schedule no later than May 13, there is no provision stating that

Father forfeits his summer visitation if the parties fail to agree on a schedule by that

date.

{¶33} The evidence also shows that, on another occasion, Mother denied Father a

visit with Child because Father was allegedly over a half hour late to pick Child up.

Father, however, testified that he attempted to call Mother several times to notify her

that he was running late. Mother and her grandmother, who were both caring for Child

at the time, claimed that they did not answer the phone because they were each too ill.

(Neither Mother nor her grandmother had a persuasive explanation for why it was better

for Child to remain with them, even though they were apparently too ill to answer the

phone.)
Ross App. No. 11CA3211 13

{¶34} In addition to Mother’s denial of Father’s visitation rights, the evidence

demonstrates that Mother’s response to Child’s developmental delays was not in Child’s

best interest. Father expressed concern regarding Child’s delayed speech

development, but Mother insisted that Child’s speech was not delayed. Mother claimed

Child had a seventy-five-word vocabulary. Despite Mother’s assertion, Father enrolled

Child in the Highland County Help Me Grow program when Child was about two-and-a-

half years old. And Child tested below average or well below average in many

developmental categories. In her recommendation to the trial court, the guardian ad

litem noted that Child appeared to benefit from his participation in the Help Me Grow

program. The guardian indicated that Child did not speak at all when she first met

Child, but his communication improved after Father enrolled Child in the Help Me Grow

program.

{¶35} Father instructed the Help Me Grow staff not to inform Mother of Child’s

participation in the program because he feared Mother would disrupt Child’s

participation. And the guardian ad litem stated that she believed that Mother’s

“exclusion was warranted.” Guardian ad litem’s Recommendation at 5. The guardian

noted that, upon learning of Child’s participation in the program, Mother quickly

attempted to transfer Child from the Highland County Help Me Grow program to a

program in Ross County.

{¶36} Thus, the evidence supports the trial court’s conclusion that Mother’s

“behavior and actions have not always been in [Child’s] best interest.” The evidence

shows that Mother, at times, prevented Father from exercising his visitation rights. And
Ross App. No. 11CA3211 14

the record demonstrates that Mother’s response to Child’s developmental delays was

not “always” in Child’s best interest.

{¶37} Finally, the guardian ad litem recommended termination of the Shared

Parenting Plan and that the court designate Father as Child’s legal custodian. The

Guardian stated: “[B]ecause [Father] seems to have put [Child’s] best interests first and

because he has taken actions to foster [Child’s] development, it is my recommendation

that the Shared Parenting Plan be terminated and that [Father] be ordered the legal

custodian of [Child.]” Guardian ad litem’s Recommendation at 7.

{¶38} The record shows that the trial court considered the factors from R.C.

3109.04(F) in reaching its decision to terminate the Shared Parenting Plan and

designate Father as Child’s residential parent. Furthermore, we are mindful of our

standard of review. Under the abuse-of-discretion standard, “a reviewing court may not

merely substitute its judgment for that of the trial court.” Melvin v. Martin, Lawrence

App. No. 05CA44, 2006-Ohio-5473, at ¶7, citing In re Jane Doe I (1991), 57 Ohio St.3d

135, 137–38. The evidence supports the trial court’s conclusions. Therefore, the trial

court did not abuse its discretion by terminating the Shared Parenting Plan and

designating Father as Child’s residential parent. Accordingly, we overrule Mother’s first

assignment of error.

IV.

{¶39} In her second assignment of error, Mother argues that the trial court abused

its discretion when it failed to award parenting time to Mother in excess of the court’s

Standard Companionship Schedule.
Ross App. No. 11CA3211 15

{¶40} As stated above, the trial court “enjoys broad discretion when determining the

appropriate allocation of parental rights and responsibilities.” H.R. at ¶13 (citations

omitted). This broad discretion also applies to custody proceedings. In re J.C., Scioto

App. No. 09CA3334, 2010-Ohio-4086, at ¶9.

{¶41} “Upon the termination of a prior final shared parenting decree under [R.C.

3109.04(E)(2)(c)], the court shall proceed and issue a modified decree for the allocation

of parental rights and responsibilities for the care of the children under the standards

applicable under divisions (A), (B), and (C) of [R.C. 3109.04] as if no decree for shared

parenting had been granted and as if no request for shared parenting ever had been

made.” R.C. 3109.04(E)(2)(d).

{¶42} “When making the allocation of the parental rights and responsibilities for the

care of the children under this section in an original proceeding or in any proceeding for

modification of a prior order of the court making the allocation, the court shall take into

account that which would be in the best interest of the children.” R.C. 3109.04(B)(1).

When determining the best interest of the children for purposes of allocating parental

rights and responsibilities, a trial court must consider the factors enumerated in R.C.

3109.04(F)(1). See In re J.L.R. at ¶33.

{¶43} (The best-interest-of-the-child factors from R.C. 3109.04(F)(1), which are

relevant to the evidence presented in this case, are listed above in our analysis of

Mother’s first assignment of error.)

{¶44} The trial court designated Father as Child’s residential parent, and the court

granted Mother companionship pursuant to the court’s “standard order.” Judgment

Entry at 6. According to the trial court’s companionship schedule, Mother’s visitation is
Ross App. No. 11CA3211 16

alternate weekends, one or two three-hour visitations during the week from 6:00 p.m. to

9:00 p.m., holidays, and one-half of the summer. Mother argues that, considering that

Child is not yet in school and she works less hours than Father, “no plausible reason

exists to not let [Mother] have more ‘liberal’ parenting time, as recommended by the

Guardian [ad litem].” Appellant’s brief at 16.

{¶45} As noted in assignment of error one, the trial court considered the “best

interest of the children” factors from R.C. 3109.04(F). SeeJudgment Entry at 6 (noting

that the trial court “considered the factors set forth in R.C. 3109.04(F)”). Additionally,

the evidence demonstrates that Child has a good relationship with Father. Child also

has a good relationship with his stepmother and stepbrother. And Child is well adjusted

to Father’s home. See Judgment Entry at 4.

{¶46} Mother cites Davis v. Flickinger, 77 Ohio St.3d 415, 419, 1997-Ohio-260, for

the proposition that “[w]hen one parent begins to cut out another parent, especially one

that has been fully involved in that child’s life, the best interest of the child is materially

affected.” We note, however, that the trial court’s standard companionship schedule

does not cut Mother out of Child’s life. And the evidence demonstrates that, in the past,

Mother had “willfully denied [Father’s] right to parenting time.” See R.C.

3109.04(F)(1)(i); see, also, Judgment Entry at 2 (noting that “[Mother’s] own testimony

and the exhibits received into evidence establish the fact that [Mother] deliberately

denied [Father’s 2007] summer companionship because of the late notification”).

Consequently, Mother’s reliance on Flickinger does not show that the trial court’s

adoption of its standard companionship schedule is not in Child’s best interest.
Ross App. No. 11CA3211 17

{¶47} The guardian ad litem did recommend that Mother be awarded “liberal

visitation.” Guardian ad litem Recommendation at 7. But, even assuming that the

court’s standard schedule does not amount to “liberal visitation” as recommended by

the guardian, the trial court is not required to follow a guardian ad litem’s

recommendation. See In re Keaton, Ross App. Nos. 04CA2785 & 04CA2788, 2004-

Ohio-6210, at ¶54; Wine v. Wine, Delaware App. No. 04 CA F 10 068, 2005-Ohio-975,

at ¶75 (stating that “a trial court has discretion to follow or reject the recommendation of

a guardian ad litem”).

{¶48} As stated above, under the abuse-of-discretion standard, “a reviewing court

may not merely substitute its judgment for that of the trial court.” Melvin at ¶ 7. There is

evidence that supports the trial court’s decision to award Mother visitation pursuant to

the trial court’s standard companionship schedule. Consequently, we cannot say that

the trial court’s decision constituted an abuse of discretion. Accordingly, we overrule

Mother’s second assignment of error.

V.

{¶49} In her third assignment of error, Mother contends that the trial court abused

its discretion by failing to find Father in contempt of court.

{¶50} Contempt may be classified as either civil or criminal depending on the court’s

underlying rationale and the penalty imposed. Denovchek v. Bd. of Trumbull Cty.

Commrs. (1988), 36 Ohio St.3d 14, 16. Civil contempt orders seek to coerce

compliance with the court’s orders while criminal orders punish the party who offends

the court. See id.; Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253-54. “A

finding of civil contempt does not require proof of purposeful, willing, or intentional
Ross App. No. 11CA3211 18

violation of a trial court’s prior order.” Townsend v. Townsend, Lawrence App. No.

08CA9, 2008-Ohio-6701, at ¶27, citing Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140.

“[U]nlike civil contempt, criminal contempt requires proof of a purposeful, willing, or

intentional violation of a trial court’s order.” Delawder v. Dodson, Lawrence App. No.

02CA27, 2003-Ohio-2092, at ¶10, citing Carroll v. Detty (1996), 113 Ohio App.3d 708,

711. In addition, the burdens of proof differ for the two different types of contempt. For

civil contempt, a trial court needs to find that an alleged contemnor has violated a court

order by clear and convincing evidence, but the trial court needs to be convinced

beyond a reasonable doubt to convict a contemnor of criminal contempt. Delawder at

¶10.

{¶51} The trial court adopted the magistrate’s decision, which found “by clear and

convincing evidence” that “[t]here is not sufficient evidence to support a finding that

[Father] has failed to obey any order of this Court.” Magistrate’s Conclusion of Law 4.

Because the trial court resolved Father’s alleged contempt under a “clear and

convincing” evidentiary standard, we construe this as a civil contempt.

{¶52} “This court reviews a finding of civil contempt under the abuse of discretion

standard.” Lindsey v. Lindsey, Scioto App. No. 06CA3113, 2007-Ohio-3803, at ¶18.

See, also, State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 75; State ex rel.

Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 11; McCleese v. Clemons, Scioto App.

05CA3016, 2006-Ohio-3011, at ¶15.

{¶53} Mother argues that the trial court should have found Father in contempt of

court for the following reasons: (1) he was “habitually late” for Child’s visitation

exchanges, and (2) he failed to pay his share of Mother’s pre-natal and birthing
Ross App. No. 11CA3211 19

expenses. Mother testified regarding Father’s alleged habitual tardiness. However,

based on Mother’s testimony, Father’s average tardiness was about four minutes. And

on the occasion when Father was over a half-hour late, Mother denied Father his visit

with Child. Additionally, as mentioned above, on that occasion, Father attempted to

contact Mother and her grandmother several times. Mother and her grandmother,

however, claimed that neither of them answered the phone because they were each too

ill to do so at the time. Considering the evidence presented, the trial court did not abuse

its discretion when it determined that Father was not in contempt based on his alleged

habitual tardiness during Child’s visitation exchanges.

{¶54} Regarding the allegation of unpaid medical expenses, Article VII of the

Shared Parenting Plan does require Father and Mother to share equally Mother’s pre-

natal and birthing expenses. Mother and Father dispute whether Mother had provided

Father with the bills related to Mother’s pre-natal and birthing expenses. Mother

claimed that she provided Father’s former attorney with the bills. Father, however,

claimed that he had never received them. Father also claimed that, had he received

any bills related to Mother’s pre-natal and birthing expenses, he would have paid them.

Given this evidentiary dispute, we cannot say that the trial court abused its discretion

when it determined that there was not clear and convincing evidence to find Father in

contempt of court regarding Mother’s pre-natal and birthing expenses. (Mother’s

allegation that Father’s failure to provide Child with medical insurance constituted

contempt was not raised on appeal.)
Ross App. No. 11CA3211 20

{¶55} We conclude that the trial court did not abuse its discretion when it

determined that Father was not in contempt of court. Accordingly, we overrule Mother’s

third assignment of error.

V.

{¶56} In conclusion, we dismiss Mother’s fourth assignment of error for lack of a

final appealable order. And we overrule Mother’s first, second, and third assignments of

error.

JUDGMENT AFFIRMED, IN PART, AND APPEAL DISMISSED, IN PART.
Ross App. No. 11CA3211 21

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED, IN PART, AND APPEAL BE
DISMISSED, IN PART. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas, Juvenile Division, 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. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________
Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.