Lawson v. Lawson

[Cite as Lawson v. Lawson, 2013-Ohio-4687.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

BRIAN D. LAWSON JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13-CA-8
PATRICIA A. LAWSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Domestic Relations
Division, Case No. 06-DR-00087

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 21, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL J. DELLIGATTI RICHARD F. SWOPE
500 South Front Street, Suite 1150 Swope and Swope - Attorneys at Law
Columbus, Ohio 43215 6480 East Main Street, Suite 102
Reynoldsburg, Ohio 43068

Guardian ad Litem

ROBERT MORRIS
138 East Main St., P.O. Box 658
Hebron, Ohio 43025-0658
Licking County, Case No. 13-CA-8 2

Hoffman, P.J.

{¶1} Defendant-appellant Patricia A. Lawson appeals the March 19, 2012

Opinion entered by the Licking County Court of Common Pleas, Domestic Relations

Division, which overruled her objections to the magistrate’s May 19, 2011 decision, and

approved and adopted said decision as order of the court. Plaintiff-appellee is Brian D.

Lawson.

STATEMENT OF THE CASE AND FACTS

{¶2} Appellee and Appellant were married on September 18, 1993, in

Columbus, Ohio. Two children were born as a result of the marriage, Garrett (born

10/19/1998) and Gabriel (born 3/14/2003). Via Judgment Entry Decree of Divorce filed

February 1, 2008, the trial court granted the parties a divorce on the grounds of

incompatibility; awarded custody of the two children to Appellee; ordered Appellant to

pay child support; fixed companionship; and divided the property.

{¶3} During the divorce proceedings, Appellant resided in the marital residence

in Pataskala, Ohio. Appellee was residing in a temporary residence. Pursuant to the

divorce decree, the marital residence was sold. Appellee purchased a residence in

Galloway, Franklin County, Ohio, where he and the children continue to reside.

Appellee notified the trial court and Appellant of the change of address. Appellee’s

moving was discussed during the divorce proceedings. As a result of the move, the

parties’ children changed school districts. Appellant moved to Grove City, Ohio, to be

closer to the children. Due to Appellee’s work schedule, his parents transport the

children to and from school and also provide morning and afterschool care as well as
Licking County, Case No. 13-CA-8 3

summer care. The children spend approximately 3 hours per day with their

grandparents during the school year.

{¶4} Post-decree, the parties filed the following motions:

{¶5} Appellant’s motion to modify child support and for counseling, filed April

28, 2008;

{¶6} Appellant’s motion for contempt, filed July 30, 2008;

{¶7} Appellee’s motion for citation in contempt, to enforce property settlement

payments and attorney fees, filed August 11, 2008;

{¶8} Appellee’s motion for attorney fees, filed July 22, 2009;

{¶9} Appellant’s motion to change custody, filed December 19, 2009.

{¶10} Appellee’s motion for citation in contempt for non-payment of child

support, filed May 26, 2010; and

{¶11} Appellant’s motion to reduce arrearages to judgment, filed June 16, 2010.

{¶12} Appellant filed for bankruptcy, which stayed the matter. The motions were

ultimately heard by the magistrate over the course of four days, December 20, 21, 22,

and 23, 2010. The magistrate issued his decision on May 19, 2011. The magistrate

recommended the trial court deny all of Appellant’s motions. Appellant filed objections

to the magistrate’s decision. Via Opinion filed March 19, 2012, the trial court overruled

all of Appellant’s objections to the magistrate’s decision, and approved and adopted

said decision as order of the court.

{¶13} It is from the March 19, 2012 Opinion Appellant appeals, raising the

following as error:
Licking County, Case No. 13-CA-8 4

{¶14} “I. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN OVERRULING OBJECTIONS TO ADMISSION OF

DOCUMENTS RELATING TO MOTIONS FOR NEW TRIAL, APPEAL, MOTION TO

CHANGE VENUE AND CIVIL PROTECTION ORDER, PERMITTING CROSS-

EXAMINATION ON SUCH MATTERS AND ALLOWING THE GUARDIAN AD LITEM

TO EXPRESS OPINIONS WHICH HE WAS NOT QUALIFIED TO EXPRESS.

{¶15} “II. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION BY NOT MAKING SPECIFIC FINDINGS OF FACT DEVELOPED

IN THE IN-CAMERA INTERVIEW OF THE TWO MINOR CHILDREN AND IN SEALING

THE RECORD OF THE PROCEEDING, DENYING DEFENDANT-APPELLANT VITAL

FACTS NECESSARY TO PRESENT OBJECTIONS AND VIOLATING DEFENDANT-

APPELLANT’S RIGHT TO DUE PROCESS CONTRARY TO THE 5TH AND 14TH

AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I,

SECTION 16 OF THE OHIO CONSTITUTION.

{¶16} “III. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN FINDING THE BENEFIT OF THE CHANGE OF CUSTODY

WOULD NOT OVERRIDE THE DAMAGE CAUSED BY THE CHANGE OF CUSTODY

AND IN NOT SUSTAINING THE MOTION TO CHANGE CUSTODY.

{¶17} “IV. THE MAGISTRATE AND THE TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN NOT MODIFYING THE COMPANIONSHIP SCHEDULE TO

PROVIDE DEFENDANT-APPELLANT WITH MORE TIME WITH THE CHILDREN.

{¶18} “V. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN FINDING PLAINTIFF-APPELLEE HAD ADEQUATELY
Licking County, Case No. 13-CA-8 5

MANAGED AND ASSESSED THE CARE FOR CHRONIC HEALTH CONDITIONS OF

THE CHILDREN.

{¶19} “VI. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN FINDING PLAINTIFF-APPELLEE HAS ADEQUATELY

MANAGED THE CHILDREN’S SCHOOL AND EDUCATION RELATED NEEDS AND

ACTIVITIES, THEREBY DENYING CHANGE OF CUSTODY.

{¶20} “VII. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN FINDING THE ORDER TO PAY SUMS ON THE FIRST AND

SECOND MORTGAGES AND MAINTENANCE WERE NOT IN THE WAY OF AND IN

LIEU OF CHILD SUPPORT, THIS COURT HAVING ONLY DETERMINED A

CONTEMPT FOR NON-PAYMENT, NOT THE NATURE OF THE ORDER.

{¶21} “VIII. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN NOT FINDING PLAINTIFF–APPELLEE’S ARRANGEMENT,

MAKING GRANDPARENTS RESPONSIBLE FOR MORNING AND EVENING CARE

WHILE PLAINTIFF-APPELLEE GOES TO AND FROM WORK AND DURING

SUMMER BREAK, IS A DETRIMENT TO THE CHILDREN, SINCE DEFENDANT-

APPELLANT, A YOUNG CAPABLE MOTHER, IS AVAILABLE MORNINGS,

EVENINGS AND MUCH OF THE SUMMER, TO CARE FOR THE CHILDREN, ALL OF

WHICH MANDATE A CHANGE OF CUSTODY.

{¶22} “IX. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN RULING THE USE OF SPANKING A PROPER HUMANE

METHOD OF DISCIPLINE, IT BEING UNREASONABLE TO STRIKE A MINOR CHILD
Licking County, Case No. 13-CA-8 6

OF THE AGE AND CONDITION OF THE CHILDREN IN THIS CASE, ALL OF WHICH

REQUIRE A CHANGE OF CUSTODY.

{¶23} “X. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN FINDING PLAINTIFF-APPELLEE WAS MORE LIKELY TO

FACILITATE COMPANIONSHIP BASED ON AN OUTDATED, UNAUTHENTICATED,

ALLEGED EXCHANGE BETWEEN PARENTS, THERE BEING NO EVIDENCE

DEFENDANT-APPELLANT HAD INTERFERED WITH COMPANIONSHIP.

{¶24} “XI. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN DENYING DEFENDANT-APPELLANT’S MOTION TO

REDUCE CHILD SUPPORT WHEN THE FACTS WARRANTED A DEVIATION FROM

A STANDARD CHILD SUPPORT WORKSHEET ORDER OF CHILD SUPPORT AND

IN DENYING DEFENDANT-APPELLANT ADDITIONAL TIME WITH HER CHILDREN.

{¶25} “XII. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN DENYING A REQUEST FOR ADDITIONAL COUNSELING

FOR THE CHILDREN.

{¶26} “XIII. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN ORDERING DEFENDANT-APPELLANT TO PAY 60% OF

THE GUARDIAN AD LITEM’S FEES, DEFENDANT-APPELLANT HAVING

CONSISTENTLY OPPOSED APPOINTMENT BASED ON A LACK OF NEED FOR A

GUARDIAN AD LITEM.

{¶27} “XIV. THE MAGISTRATE AND TRIAL COURT ERRED AND ABUSED

THEIR DISCRETION IN RECOMMENDING A PURGE ORDER THAT WAS BEYOND

DEFENDANT-APPELLANT’S FINANCIAL ABILITY TO MEET.
Licking County, Case No. 13-CA-8 7

{¶28} “XV. THE MAGISTRATE’S AND TRIAL COURT’S DECISIONS ARE

CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶29} Any other relevant facts necessary for the disposition of Appellant’s

assignments of error shall be contained therein.

I

{¶30} In her first assignment of error, Appellant contends the magistrate and the

trial court erred and abused their discretion in overruling objections to admission of

documents relating to motions for new trial, appeal, motion to change venue and civil

protection order, permitting cross-examination on such matters and allowing the

guardian ad litem to express opinions which he was not qualified to express.

{¶31} Under this assignment of error, Appellant raises seven sub-assignments

of error:

{¶32} a). The Magistrate and Trial Court abused their discretion in overruling

objection to cross-examining witnesses about a Civil Protection Order filed in Franklin

County;

{¶33} b). The Magistrate and Trial Court erred and abused their discretion in

overruling objection to questioning the Guardian ad Litem as to determination of issues

of effect of a change of custody;

{¶34} c). The Magistrate and Trial Court erred and abused their discretion in

overruling an objection to an improper questioning [sic], asking the Guardian ad Litem to

give an opinion which he was not qualified to give and which was the ultimate issue

reserved to the Court;
Licking County, Case No. 13-CA-8 8

{¶35} d). The Magistrate and Trial Court erred and abused their discretion in

allowing Plaintiff-Appellee to utilize court rulings on motion for new trial, removal motion,

protective orders and appeals;

{¶36} e). The Magistrate and the Trial Court erred and abused their discretion in

admitting Plaintiff-Appellee’s Exhibits C-3, C-4 and C-5;

{¶37} f). The Magistrate and Trial Court erred and abused their discretion in

admitting Plaintiff-Appellee’s Exhibit F-2 containing e-mails;

{¶38} g). The Magistrate and Trial Court erred and abused their discretion in

excluding Defendant-Appellant’s Exhibit 2.

{¶39} 1. Admission of Evdience – Subassignments 1(a), 1(d), and 1(f)1

{¶40} The trial court has broad discretion in the admission and exclusion of

evidence. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). The trial

court's decision on whether to admit or exclude evidence will be upheld absent an

abuse of discretion. Shull v. Itani, 11th Dist. No.2002-L-163, 2004-Ohio-1155, at ¶ 39.

“The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A judgment

will not be reversed on appeal unless the trial court has abused its discretion and a

party has been materially prejudiced. Davis v. Killing, 171 Ohio App.3d 400, 870 N.E.2d

1209, 2007-Ohio-2303, at ¶ 11. (Citation omitted.) Therefore, we must first make a

determination as to whether the trial court abused its discretion when it allowed the

introduction of evidence at trial. If we determine that the trial court did abuse its

1
It appears Appellant meant for this to be subassignment 1(e).
Licking County, Case No. 13-CA-8 9

discretion, we must resolve whether the substantial rights of Appellant were undermined

by the admission of such evidence.

{¶41} Appellant submits the evidence admitted by the trial court, which is the

subject of subassignments of error 1(a), 1(d), and 1(f), dealt with previous judicial

matters which were not relevant to a determination of the issues before the trial court.

Appellant contends Appellee introduced this evidence for the sole purpose of attacking

her character. Appellee counters the evidence of the previous judicial matters was not

only necessary to prove or disprove the issues in this case, but also to support and

substantiate Appellant’s pattern of conduct throughout the divorce proceeding.

{¶42} Assuming, arguendo, the trial court’s admission of the evidence was an

abuse of discretion, we find Appellant has failed to establish how she was prejudiced by

the admission of the evidence in light of the totality of the otherwise admissible evidence

presented.

{¶43} 2. Opinion of Guardian ad Litem – Subassignments 1(b) and 1(c)

{¶44} Appellant argues the trial court permitted the guardian ad litem to answer

questions relative to the mental state and effects of the custody arrangement on the

children, and such opinions were beyond the guardian’s area of expertise.

{¶45} Initially, counsel for Appellee asked the guardian, “Okay. Now when

investigating this, do you believe the boys are thriving in their current living

arrangements with [Appellee]?” The trial court overruled Appellant’s objection to the

question. When instructed to answer the question, the guardian stated, “Don’t know

your definition of thriving.” Counsel for Appellee rephrased the question, “Do you

believe the boys are not being properly cared for when they’re with [Appellee] under the
Licking County, Case No. 13-CA-8 10

current orders of the Court as they’re set forth in the decree?” Appellant did not object,

and the guardian answered the question. Counsel for Appellee subsequently asked the

guardian, “Did you receive in your investigation or in any of your investigation process

information, depositions, interviews with the parties, any information that would cause

you to determine the harm caused by a change of the children’s current environment is

outweighed by the advantage of a change in environment; that would be custody going

to [Appellant]?” Again, Appellant did not object to this question.

{¶46} We find error, if any, in the trial court’s admission of the testimony of the

guardian ad litem was waived as Appellant failed to object to guardian ad litem's

testimony or to the introduction of his report.

{¶47} 3. Admission of E-mails – Subassignment 1(f)2

{¶48} Appellant asserts the trial court erred in admitting e-mails she sent to

Appellee as such evidence was not properly authenticated pursuant to Evid. R. 901.

Appellant explains when Appellee questioned her about the e-mails, she could not recall

writing or receiving them; therefore, the evidence was not properly authenticated.

{¶49} Upon review of the record, we find Appellant’s argument to be

disingenuous. Appellant introduced certain e-mails she sent to Appellee and testified

Appellee received all of those e-mails. However, when Appellee presented e-mails he

received from Appellant, she could not recall writing or sending these e-mails.

Appellant’s e-mail address was the same on both groups of documents.

{¶50} Appellant’s first assignment of error is overruled.

2
Appellant never addressed subassignment 1(g).
Licking County, Case No. 13-CA-8 11

II

{¶51} In her second assignment of error, Appellant submits the magistrate and

the trial court erred and abused their discretion by failing to make specific findings of

fact developed in the in-camera interview of the parties’ minor children, and in sealing

the record of the proceeding which denied Appellant vital facts necessary to present

objections, and violated her right to due process.

{¶52} R.C. 3109.04, which addresses in-camera interviews, provides:

(2) If the court interviews any child pursuant to division (B)(1) of this

section, all of the following apply: * * *

(c) The interview shall be conducted in chambers, and no person

other than the child, the child's attorney, and judge, any necessary court

personnel, and, in the judge's discretion, the attorney of each parent shall

be permitted to be present in the chambers during the interview.

(3) No person shall obtain or attempt to obtain from a child a written

or recorded statement or affidavit setting forth the child's wishes and

concerns regarding the allocation of parental rights and responsibilities

concerning the child. No court, in determining the child's best interest for

purposes of making its allocation of the parental rights and responsibilities

for the care of the child or for purposes of resolving any issues related to

the making of the allocation, shall accept or consider a written or recorded

statement or affidavit that purports to set forth the child's wishes and

concerns regarding those matters.
Licking County, Case No. 13-CA-8 12

{¶53} This Court has interpreted sections (2)(c) and (3) of R.C. 3109.04 to mean

in-camera interviews are to remain confidential. Myers v. Myers, 170 Ohio App.3d. 436,

2007-Ohio-66; Linger v. Linger (June 30, 1993), Licking App. 92–CA–120, 1993 WL

274318 .

{¶54} In Myers, we explained:

This reasoning is in conformity with the general proposition that the

overriding concern of courts in custody cases must be the best interests of

the child, which may, at times, conflict with the due-process rights of the

parents. However, due process is a flexible concept and only requires the

procedural protection that a particular situation warrants. Mathews v.

Eldridge (1976), 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18. The due-

process rights of the parents must, therefore, be balanced against the best

interests of the child.

The requirement that the in camera interviews be recorded is

designed to protect the due-process rights of the parents. The due-

process protection is achieved in this context by sealing the transcript of

the in camera interview and making it available only to the courts for

review. This process allows appellate courts to review the in camera

interview proceedings and ascertain their reasonableness, while still

allowing the child to “feel safe and comfortable in expressing his opinions

openly and honestly, without subjecting the child to any additional

psychological trauma or loyalty conflicts.” See House, Considering the
Licking County, Case No. 13-CA-8 13

Child's Preference in Determining Custody: Is It Really in the Child's Best

Interest?, 19 J.Juv.L. 176 (1998), 186. Id. at para. 49 - 50.

{¶55} The trial court granted Appellant’s request for an in-camera interview of

the children. Both parties submitted questions to be posed to the children. Prior to the

interview, the trial court explained the procedure in open court to Appellant and

Appellee as well as the guardian ad litem. The trial court informed the parties and the

guardian ad litem it would not divulge the specific conversation between the court and

the children. Appellant did not object to any aspect of the procedure. The guardian ad

litem was present during the interview. Neither the parties nor their attorneys were

permitted to be present during the interview. The trial court ordered the record of the

interview be sealed.

{¶56} We find Appellant has failed to demonstrate how her due process rights

were violated or how she was prejudiced from the information elicited during the in-

camera interview. This Court's review of the in-camera interview of the children protects

Appellant’s rights while at the same time ensures the children's statements made during

the interview remain confidential. We find the trial court’s decision to maintain the status

quo with respect to Appellee remaining the residential parent is supported by the record.

{¶57} Furthermore, we find the interviews of the children were conducted

pursuant to R.C. 3109.05; therefore, are confidential and are not to be disclosed to the

parents. Appellant does not have the right of access to the sealed transcript of the in-

camera interview between the children and the trial court. Beil v. Bridges (July 13,

2000), Licking App. No. 99CA00135, 2000 WL 977221 (holding the sealing of
Licking County, Case No. 13-CA-8 14

transcripts of children's in-camera interviews did not violate the parents' due process

rights).

{¶58} Appellant’s second assignment of error is overruled.

III

{¶59} In her third assignment of error, Appellant argues the magistrate and the

trial court erred and abused their discretion in finding the benefit of the change of

custody would not override the damage caused by the change of custody.

{¶60} The power of a court to modify an existing custody decree is provided in

R.C. 3109.04(E)(1)(a), which states, in pertinent part:

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 or that were unknown to the court

at the time of the prior decree, that a change has occurred in the

circumstances of the child, the child's residential parent, or either of the

parents subject to a shared parenting decree, and that the modification is

necessary to serve the best interest of the child. In applying these

standards, the court shall retain the residential parent designated by the

prior decree or the prior shared parenting decree, unless a modification is

in the best interest of the child and one of the following applies: * * *

(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.

{¶61} A trial court's decision to modify custody pursuant to this statute will not be

disturbed on appeal absent an abuse of discretion. This standard of review is applied
Licking County, Case No. 13-CA-8 15

because it is imperative trial courts are given wide latitude in these cases. Davis v.

Flickinger, 77 Ohio St.3d 415 (1997).

{¶62} The trial court found Appellee’s relocation with the children to Galloway,

Ohio, in western Franklin County from Pataskala, in western Licking County, constitutes

a change of circumstances. The trial court further found “the impact of the relocation

has not been as acutely detrimental to the children as has been characterized by

[Appellant]. The evidence admitted into the record in fact established that the relocation

has been a positive change.” Magistrate’s May 19, 2011 Decision.

{¶63} In her Brief to this Court, Appellant essentially blames Appellee’s

relocation for Garrett’s educational struggles. Appellant states she would be able “to

provide not only constant aid, but to engage Sylvan and deal with Garrett’s problems.”

Appellant’s Brief at 12. Additionally, she insists she can provide more to Gabriel to

meet the challenges he faces because of his attention deficit disorder.

{¶64} After reviewing the record, we find the trial court did not abuse its

discretion in denying Appellant’s motion for change of custody. Garrett’s educational

difficulties did not result from the move. The parties were addressing his issues prior to

the divorce. Garrett had an IEP through his new school, but had also had one at his

school in Licking County. At the hearing, Appellant conceded Garrett is currently doing

better with his studies than he has in the past. Likewise, Gabriel’s issues did not result

from the move. Appellant did not present any evidence to establish how the best

interests of the children would be served by changing custody.

{¶65} Appellant’s third assignment of error is overruled.
Licking County, Case No. 13-CA-8 16

IV

{¶66} In her fourth assignment of error, Appellant asserts the magistrate and the

trial court erred and abused their discretion in failing to modify the companionship

schedule to provide Appellant with more time with the children. Specifically, Appellant

submits because the trial court did not modify the custody order, she should have been

given additional visitation with the children.

{¶67} It is well established that the trial court has broad discretion in determining

matters related to visitation. See Appleby v. Appleby (1986), 24 Ohio St.3d 39, 24 OBR

81, 492 N.E.2d 831. In modifying visitation, the trial court is granted discretion limited

only by the child's best interest. Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 713,

588 N.E.2d 200. An appellate court reviews a trial court's determination of visitation

rights under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142,

144, 541 N.E.2d 1028. Furthermore, if a trial court's determination is supported by

competent, credible evidence, it will not be reversed by a reviewing court as being

against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co.

(1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, and Seasons Coal Co. v.

Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273.

{¶68} A review of the record reveals Appellant never requested additional

companionship as an alternative to her motion for change of custody. We find the trial

court did not abuse its discretion in failing to sua sponte increase her companionship

schedule.

{¶69} Appellant’s fourth assignment of error is overruled.
Licking County, Case No. 13-CA-8 17

V

{¶70} In her fifth assignment of error, Appellant maintains the magistrate and the

trial court erred and abused their discretion in finding Appellee adequately managed

and assessed the care of the children’s chronic health conditions.

{¶71} Appellant failed to present any evidence Appellee did not adequately

manage or assess the children’s health conditions. In fact, the record reveals the

opposite. Dr. Ro’s deposition testimony, as well as the children’s health care records,

establish Appellee is diligent in ensuring the children attend scheduled appointments,

and is compliant in following health care orders and recommendations.

{¶72} Appellant’s fifth assignment of error is overruled.

VI

{¶73} In her sixth assignment of error, Appellant submits the magistrate and the

trial court erred and abused their discretion in finding Appellee adequately managed the

children’s school and educational needs and activities.

{¶74} A review of the record belies Appellant’s assertion. While Garrett’s grades

were initially lower after the relocation, Appellee worked with school officials and Garrett

was placed on an IEP, Independent Education Plan. Appellee complied with all the

recommendations and acted in accordance with the suggestions of the school officials.

{¶75} Appellant’s sixth assignment of error is overruled.

VII

{¶76} In her seventh assignment of error, Appellant contends the magistrate and

the trial court erred and abused their discretion in finding the order to pay sums on the

first and second mortgages and maintenance were not in the way of and in lieu of child
Licking County, Case No. 13-CA-8 18

support, this Court having only determined a contempt for non-payment, not the nature

of the order in Lawson v. Lawson, Licking App. No. 08-CA-37, 2009-Ohio-248.

{¶77} Appellant argues she was left with a deficit of over $10,000.00 as the

result of Appellee’s failure to follow the temporary orders. Appellant adds the

Bankruptcy Court looked at the order to determine whether it was an order of support,

thereby affecting whether it could be discharged. Appellee contends this Court’s

decision in Lawson, supra, spoke to both the nature of the order and the contempt for

the non-payment. Appellee adds Appellant’s failure to seek further appeal of this

Court’s decision regarding the nature of the order renders her argument moot as

untimely.

{¶78} In her appeal from the trial court’s February 1, 2008 Judgment

Entry/Decree of Divorce, Appellant argued “the trial court abused its discretion when it

did not find Appellee to be in contempt for failing to pay 40 percent of the mortgage

payments and expenses, even though he admitted to nonpayment from April to

October, 2007.” Appellant filed a second contempt motion on this issue while the

appeal was pending.

{¶79} In Lawson, we found:

The record reflects that Appellee did not pay the 40 percent of the

mortgage payments pursuant to Temporary Orders issued on May 24,

2006, due to an agreement reached between the parties at a status

conference. Appellee testified that when this agreement was later reduced

to writing, Appellant refused to sign the agreement. Appellant testified and

denied the existence of an agreement modifying the temporary orders
Licking County, Case No. 13-CA-8 19

relieving Appellee of his responsibility to pay the mortgage payment and

also denied any knowledge of a written agreed entry modifying the

temporary orders regarding the mortgage payment. Id. at para. 59.

{¶80} We concluded the trial court did not abuse its discretion in denying

Appellant’s contempt motion, noting “the trial court was in the best position to judge the

credibility of the parties and to determine whether Appellee violated a court order.” Id.

at para. 60. In light of this decision, the trial court found Appellant presented “an

insufficient amount and quality of evidence . . . to establish the merit” of her second

motion.

{¶81} Based upon the record and our prior decision in Lawson, supra, we cannot

find that the court abused its discretion in dismissing Appellant's second motion for

contempt on the same issue.

{¶82} Appellant’s seventh assignment of error is overruled.

VIII

{¶83} In her eighth assignment of error, Appellant argues the magistrate and the

trial court erred and abused their discretion in not finding Appellee’s arrangement of

having his parents provide before and after school care as well as summer care was

detrimental to the children in light of the fact she is a young, capable mother who is

available mornings and evenings and much of the summer to care for her children.

{¶84} Appellant has failed to point to any evidence which establishes the amount

of time the children spend with their paternal grandparents was not in their best

interests or has, in any way, negatively impacted their lives.

{¶85} Appellant’s eighth assignment of error is overruled.
Licking County, Case No. 13-CA-8 20

IX

{¶86} In her ninth assignment of error, Appellant asserts the magistrate and the

trial court erred and abused their discretion in ruling the use of spanking a proper

humane method of discipline, it being unreasonable to strike a minor child of the age

and condition of the children in this case, all of which require a change of custody.

{¶87} Appellee admitted one of the methods he uses for disciplining the children

is to paddle their behinds with his hand, and such occurs no more than once a week.

Appellee employs this method “when they’re not doing what they’ve been told to do or

when they’re not paying attention or especially when they’re doing something that’s—

that’s dangerous. * * * an attention getter.”

{¶88} Appellant explains one of the boys “sees a psychologist for Attention

Deficit Disorder which results in the kind of conduct that brings about spanking.” Brief of

Appellant at 21. Appellant has failed to present any evidence to support her position.

Further, Appellant has failed to present any evidence Appellee’s spanking the children

has a detrimental effect on the boys’ health conditions.

{¶89} Appellant’s ninth assignment of error is overruled.

X

{¶90} In her tenth assignment of error, Appellant maintains the magistrate and

the trial court erred and abused their discretion in finding Appellee was more likely to

facilitate companionship based on an outdated, unauthenticated, alleged exchange

between the parties, there being no evidence Appellant interfered with Appellee’s

companionship.
Licking County, Case No. 13-CA-8 21

{¶91} Appellant takes issue with the trial court’s reference to a January, 2009 e-

mail which she sent to Appellee subsequent to the filing of the divorce decree. Therein,

Appellant revealed her goal was to see Appellee did not receive “one day of visitation

with either child.” Appellant claims this “outdated” e-mail should not be the basis for the

trial court’s decision.

{¶92} We find nothing in the record from which we could reach the conclusion

the trial court used the aforementioned e-mail as the basis for its decision. The trial

court made this and numerous other findings as its reasons for finding a change of

custody was not warranted. Furthermore, throughout the history of this case, Appellant

interfered with Appellee’s companionship time. This finding was neither unfair nor

unjustified.

{¶93} Appellant’s tenth assignment of error is overruled.

XI

{¶94} In her eleventh assignment of error, Appellant submits the magistrate and

the trial court erred and abused their discretion in denying Appellant’s motion to reduce

child support when the facts warranted a deviation from a standard child support

worksheet order of child support and in denying Appellant additional time with her

children.

{¶95} R.C. 3119.79(A) states, in relevant part, as follows:

If an obligor or obligee under a child support order requests that the

court modify the amount of support required to be paid pursuant to the child

support order, the court shall recalculate the amount of support that would

be required to be paid under the child support order in accordance with the
Licking County, Case No. 13-CA-8 22

schedule and the applicable worksheet through the line establishing the

actual annual obligation. If that amount as recalculated is more than ten per

cent greater than or more than ten per cent less than the amount of child

support required to be paid pursuant to the existing child support order, the

deviation from the recalculated amount that would be required to be paid

under the schedule and the applicable worksheet shall be considered by the

court as a change of circumstance substantial enough to require a

modification of the child support amount.

{¶96} After recalculating the child support worksheet utilizing the parties’ most

recent income figures, the trial court found the change did not exceed ten percent;

therefore, did not constitute a change of circumstances which warranted a modification

of the original support order. We agree and find the trial court did not abuse its

discretion in denying Appellant’s request for modification of child support.

{¶97} Within this assignment of error, Appellant also argues the trial court

abused its discretion in failing to increase her parenting time. This argument was

addressed in Assignment of Error IV, supra.

{¶98} Appellant’s eleventh assignment of error is overruled.

XII

{¶99} In her twelfth assignment of error, Appellant contends the magistrate and

the trial court erred and abused its discretion in denying her request for additional

counseling for the children. Appellant explains the struggles the children are having in

school alone justify an order of counseling. Appellant adds, at the very least, the trial

court should have order evaluations of the children. Appellant also notes Gabriel’s
Licking County, Case No. 13-CA-8 23

psychologist denied access of the child’s records to all parties including the guardian ad

litem.

{¶100} Upon review of the record, we find Appellant failed to present any

evidence relative to the children’s need for additional counseling. Appellee presented

evidence of the counseling the children had had and were continuing to receive.

{¶101} Appellant’s twelfth assignment of error is overruled.

XIII

{¶102} In her thirteenth assignment of error, Appellant argues the magistrate and

the trial court erred and abused its discretion in ordering her to pay 60% of the guardian

ad litem fees when Appellant consistently opposed the appointment of the guardian as

unnecessary.

{¶103} The trial court found the guardian ad litem fees, which totaled $4,700.00,

were reasonable and necessary for the services performed. The trial court ordered

Appellee to be responsible for 40% of the fees, and Appellant responsible for the

remaining 60%. A trial court has broad discretion when ordering the apportionment of

guardian ad litem fees between the parties. Davis v. Davis (1988), 55 Ohio App.3d 196.

{¶104} In light of the significant difference between the parties’ incomes, we find

the trial court did not abuse its discretion in its apportionment of the guardian ad litem

fees.

{¶105} Appellant’s thirteenth assignment of error is overruled.
Licking County, Case No. 13-CA-8 24

XIV

{¶106} In her fourteenth assignment of error, Appellant asserts the magistrate

and the trial court erred and abused its discretion in recommending a purge order which

was beyond her financial ability to meet.

{¶107} Contempt may be classified as either criminal or civil in nature. Brown v.

Executive 200, Inc. (1980), 64 Ohio St.2d 250, 254, 416 N.E.2d 610. A civil contempt

citation is used to force compliance with a court order or judgment whereas a criminal

contempt citation is imposed solely for the purpose of punishment. Id.

{¶108} Although both types of contempt contain an element of punishment, courts

distinguish criminal and civil contempt not on the basis of punishment, but rather, by the

character and purpose of the punishment. State v. Kilbane (1980), 61 Ohio St.2d 201,

205, 400 N.E.2d 386. “The purpose of civil contempt proceedings is to secure the

dignity of the courts and the uninterrupted and unimpeded administration of justice.”

Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 58, 271 N.E.2d 815.

Punishment is remedial or coercive and for the benefit of the complainant in civil

contempt. Brown, supra, at 253, 416 N.E.2d 610. Prison sentences are conditional. Id.

The contemnor is said to carry the keys of his prison in his own pocket, since he will be

freed if he agrees to do as ordered. Id. (Citation omitted). Contempt can only occur,

however, “where the contemnor has the power to perform the act listed in the court

order but fails to do so.” Schaefer v. Schaefer, 2d Dist. No.2004–CA–65, 2005–Ohio–

3063, ¶ 13, citing Wilson v. Columbia Cas. Co. (1928), 118 Ohio St. 319, 328–329, 160

N.E. 906.
Licking County, Case No. 13-CA-8 25

{¶109} Failure to pay court-ordered child support constitutes civil contempt. R.C.

2705.031; Herold v. Herold, 10th Dist. No. 04AP-206, 2004-Ohio-6727, at ¶ 25.

{¶110} “A prima facie case of civil contempt is made when the moving party

proves both the existence of a court order and the nonmoving party's noncompliance

with the terms of that order.” Wolf v. Wolf, 1st Dist. No. C–090587, 2010–Ohio–2762, ¶

4. “Clear and convincing evidence is the standard of proof in civil contempt

proceedings.” Flowers v. Flowers, 10th Dist. No. 10AP–1176, 2011–Ohio–5972, ¶ 13.

{¶111} Here, Appellant does not dispute the existence of a court order requiring

her to pay child support. Appellant argues she is financially strapped, and the purge

order is “punishment since [she] could not meet this obligation.”

{¶112} Appellant earned between $90,000 and $100,000/year. Appellant did not

present any evidence to substantiate her claim she is financially strapped. Based upon

the evidence in the record, we find the trial court did not abuse its discretion in adopting

the magistrate’s recommended purge order.

{¶113} Appellant’s fourteenth assignment of error is overruled.

XV

{¶114} In her final assignment of error, Appellant maintains the magistrate’s and

the trial court’s decisions to deny her request for change of custody are contrary to law

and against the manifest weight of the evidence.

{¶115} For the reasons set forth in our analyses of Appellant’s assignments of

error I –XIV, we find the trial court’s denial of Appellant’s request for change of custody

was neither contrary to law nor against the manifest weight of the evidence.

{¶116} Appellant’s fifteenth assignment of error is overruled.
Licking County, Case No. 13-CA-8 26

{¶117} The judgment of the Licking County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

___________________________________
HON. WILLIAM B. HOFFMAN

___________________________________
HON. JOHN W. WISE

___________________________________
HON. PATRICIA A. DELANEY
Licking County, Case No. 13-CA-8 27

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

BRIAN D. LAWSON :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PATRICIA A. LAWSON :
:
Defendant-Appellant : Case No. 13-CA-8

For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs

assessed to Appellant.

___________________________________
HON. WILLIAM B. HOFFMAN

___________________________________
HON. JOHN W. WISE

___________________________________
HON. PATRICIA A. DELANEY