[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.
Clyburn v. Gregg
Combined Opinion