Robinette v. Bryant

[Cite as Robinette v. Bryant, 2015-Ohio-119.]

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

IN THE MATTER OF: :

MICHAEL DAVID ROBINETTE, : Case No. 14CA28

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
TAMMY ANNETTE BRYANT, :

Defendant-Appellant. : RELEASED: 1/9/2015

APPEARANCES:

Tammy Annette Bryant, Fort Mitchell, Kentucky, pro se appellant.

Tyler B. Smith, Tyler Beckett Smith Law Firm, Huntington, West Virginia, for appellee.
Harsha, J.
{¶1} Tammy Annette Bryant appeals from a judgment that: 1) denied her

motion to find Michael David Robinette in contempt for failure to comply with a visitation

order, 2) granted Robinette’s motion to find Bryant in contempt for failing to return their

daughter to Robinette following visitation, and 3) denied Bryant’s motion to change

custody.

{¶2} In her second, third, and part of her first assignment of error Bryant

challenges a portion of the trial court’s April 2, 2014 judgment that dismissed her first

motion for contempt for lack of evidence. Because Bryant failed to file a timely appeal

from that judgment, we lack jurisdiction to consider the merits of these assignments and

dismiss them.

{¶3} In the portion of her first assignment of error that we do have jurisdiction to

consider, Bryant contends that the trial court erred in adopting two magistrate’s
Lawrence App. No. 14CA28 2

decisions before she could file her objections to those decisions. The trial court did not

err in entering judgment on the magistrate’s decisions before the fourteen-day period to

file objections had expired because it was authorized to do so by Juv.R. 40(D)(4)(e)(i),

which also protects Bryant’s right to subsequently object.

{¶4} In her fourth assignment of error Bryant claims that in the absence of a

finding of contempt, the trial court erred in suspending her parenting time in a temporary

order. Because this interim order was based on Robinette’s uncontroverted testimony

that Bryant had violated a court order by refusing to return the child to Robinette

following weekend visitation, the trial court did not err in issuing it.

{¶5} In her fifth assignment of error Bryant claims that in the absence of a

finding of contempt, the trial court erred in reinstating her visitation on a limited basis.

Bryant’s argument, however, contests a subsequent judgment, so we do not need to

address it. Moreover, based on the evidence submitted at the hearings, the trial court’s

limited reinstatement of visitation was appropriate.

{¶6} In her sixth assignment of error Bryant asserts that the trial court erred by

not including in its findings of fact the reasons Bryant had asserted for not returning their

daughter to Robinette following visitation. The trial court did not err in its omission

because the reasons Bryant gave for failing to comply with the court’s order did not

justify her acts of contempt. Bryant herself admitted that she intentionally violated the

court order and that her reasons for doing so did not excuse her actions.

{¶7} In her seventh assignment of error Bryant claims that the trial court erred

in denying her motion to find Robinette in contempt for showing up a half hour late for

her scheduled one-hour visitation with the child and not staying outside the restaurant
Lawrence App. No. 14CA28 3

during the visitation. Because this was a one-time incident that was immediately

corrected and there was no evidence that the noncompliance with the order was

intentional, the trial court did not abuse its discretion in determining that Robinette was

not in contempt.

{¶8} In her eighth assignment of error Bryant claims that the trial court erred by

failing to explain why the court omitted three findings in the magistrate’s report that she

objected to. However, the trial court did in fact implicitly sustain her objections and

found the omitted findings were either unsupported or irrelevant. The court’s

modification of the magistrate’s decision did not prejudice her.

{¶9} In her ninth and tenth assignments of error Bryant asserts that the trial

court erred by misrepresenting the communications between the parties and stating that

her actions bordered on stalking Robinette and his wife. However, the evidence

supports the trial court’s findings, e.g., Bryant’s history of harassing and threatening

Robinette and his wife.

{¶10} In her eleventh assignment of error Bryant contends that the trial court

erred in finding that Robinette is employed by the U.S. Army Corps of Engineers.

Bryant’s contention is meritless because the court’s finding is supported by Robinette’s

uncontroverted testimony that he worked there.

{¶11} In her twelfth assignment of error Bryant claims that the trial court erred in

ordering her to reimburse Robinette for his reasonable costs and attorney fees

associated with defending her motions, and the costs and fees associated with the

motions he filed to regain custody of the child. Because the trial court was authorized

by R.C. 3127.42(A) to do so, no error occurred.
Lawrence App. No. 14CA28 4

{¶12} In her thirteenth assignment of error Bryant asserts that the trial court

erred in entering judgment because the magistrate issued her May 15, 2014 decision

during the period when Bryant could have filed a motion for reconsideration in an earlier

appeal to the Supreme Court of Ohio. Because that appeal to the Supreme Court did

not involve the matters at issue in these proceedings and it had been resolved by the

time the magistrate issued her decision, the trial court did not err in entering judgment

denying Bryant’s objections to the magistrate’s decision.

{¶13} In her fourteenth assignment of error Bryant contends that the trial court

erred in failing to reinstate her parenting time after she voluntarily submitted to a mental

hygiene test, which showed her to be in the normal range. However, Bryant failed to

show remorse for her failure to abide by the trial court’s orders and did not suggest that

she would comply with those orders in the future. Therefore, the trial court did not

abuse its discretion by failing to reinstate her parenting time beyond what it ordered

after she failed to return the parties’ child from a weekend visitation.

{¶14} In her fifteenth assignment of error Bryant claims that the trial court erred

in ordering the parties to communicate through the Our Family Wizard website and

permitting attorneys, the judge, magistrate, and guardian ad litem to access the

communications. In her sixteenth assignment of error Bryant asserts that the trial court

erred by ordering the parties not to communicate by telephone, e-mail, or text

messages except for emergency matters concerning the child that require action in less

than 48 hours. Based on the parties’ lengthy history of significant problems in

communicating, the trial court did not abuse its discretion in issuing those orders.
Lawrence App. No. 14CA28 5

{¶15} The trial court did not abuse its discretion in denying Bryant’s motions to

modify custody of the parties’ child, to find Robinette in contempt, and to reinstate her

parenting time or in finding Bryant in contempt. We overrule Bryant’s assignments of

error and affirm the trial court judgment that is properly before us. We dismiss those

assignments of error that relate to Bryant’s untimely appeal.

I. FACTS

{¶16} This is the third appeal involving disputes over parental rights for the

parties’ minor daughter, Kailey, who was born in 2010. Robinette, who lived in West

Virginia, initiated the case by filing a petition in Lawrence County, where Bryant and the

child lived, to establish paternity and obtain a shared parenting order. An agreed

temporary order made Bryant the residential parent, granted Robinette weekly parenting

time, and ordered him to pay child support. After she was transferred for work to

Cincinnati, Bryant moved to Kentucky and sought to dismiss the Ohio case. The trial

court denied Bryant’s motion to dismiss, designated Robinette the residential parent and

legal custodian of the minor child, and granted Bryant parenting time, including two

weekends a month, and additional “liberal parenting time” as agreed by the parties. On

appeal we affirmed the judgment of the trial court. Robinette v. Bryant, 4th Dist.

Lawrence No. 12CA20, 2013-Ohio-2889. The Supreme Court of Ohio refused to accept

jurisdiction over Bryant’s appeal and denied her motion for reconsideration of that

decision. Robinette v. Bryant, 137 Ohio St.3d 1411, 2013-Ohio-5096, 998 N.E.2d 511;

Robinette v. Bryant, 137 Ohio St.3d 1478, 2014-Ohio-176, 2 N.E.3d 271.

{¶17} During the pendency of Bryant’s first appeal the parties disagreed about

the meaning of the “liberal parenting” provision, so the trial court clarified that the parties
Lawrence App. No. 14CA28 6

must both agree to any additional time beyond that previously scheduled. Bryant

appealed from the trial court’s clarification entry, and we affirmed. Robinette v. Bryant,

4th Dist. Lawrence No. 13CA9, 2013-Ohio-5887. The Supreme Court again declined

jurisdiction of Bryant’s appeal and also denied her motion for reconsideration of that

decision. Robinette v. Bryant, 138 Ohio St.3d 1494, 2014-Ohio-2021, 8 N.E.3d 964;

Robinette v. Bryant, 139 Ohio St.3d 1474, 2014-Ohio-3012, 11 N.E.3d 1195.

{¶18} In December 2013, Bryant filed a motion asking the trial court to find

Robinette in contempt for failing to comply with the court’s order to meet at the

designated place for a parenting exchange. Then in January 2014, Bryant refused to

return the child to Robinette after a holiday weekend visitation, so Robinette filed

motions to find Bryant in contempt. He also sought to have her undergo a mental

hygiene/psychological evaluation because of several disturbing e-mails Bryant sent to

Robinette and his wife. By agreement of the parties, the trial court set the motions for

hearing by the magistrate on January 29, 2014.

{¶19} When Bryant failed to appear at that hearing, her counsel indicated that

she did not have any evidence that she could present on the contempt motion without

Bryant’s testimony. Robinette provided uncontroverted testimony that after dropping off

the child with Bryant for a holiday weekend visitation on January 17, 2014, Bryant

refused to return the child on January 20. The court adopted the magistrate’s decision

on January 30, the same day it issued, and: 1) dismissed Bryant’s contempt motion for

lack of evidence, 2) ordered Bryant to immediately return the parties’ minor child to

Robinette with the assistance of law enforcement, and 3) temporarily suspended

Bryant’s parenting time. With the help of Kentucky police and without the assistance of
Lawrence App. No. 14CA28 7

Bryant, who still believed that she should retain custody, the child returned to Robinette

on January 31. Bryant then filed objections to the magistrate’s January 30, 2014

decision and a motion to reinstate her parenting schedule.

{¶20} Following a hearing in February 2014, the magistrate issued an interim

order on Bryant’s motion to reinstate parenting time. The order granted Bryant an hour

of visitation to take place at the McDonald’s restaurant in Proctorville, Ohio on the first

and third Saturdays of each month from 2:00 p.m. to 3:00 p.m., and instructed Robinette

to stay in his car during the parenting time. Bryant subsequently filed a motion to find

Robinette in contempt of this order because on February 22, 2014, he showed up at

2:30 p.m. instead of 2:00 p.m. and he remained in the restaurant during Bryant’s one-

hour visitation with the child.

{¶21} In late February 2014, Bryant filed a motion requesting a hearing on an

alleged change of circumstances concerning Robinette’s designation as residential

parent and legal custodian. Bryant claimed that Robinette was becoming increasingly ill

with his Hepatitis C condition so that he was no longer able to care for the child and that

the child was no longer primarily residing with him.

{¶22} On April 2, 2014, the trial court entered a judgment overruling Bryant’s

objections to the magistrate’s January 30, 2014 and February 2014 decisions and again

dismissed Bryant’s first motion for contempt for lack of evidence. The court also

adopted the magistrate’s interim order restricting Bryant’s parenting time. The court

specified that its dismissal of Bryant’s contempt motion constituted a final appealable

order. Bryant did not take a timely appeal from this judgment.
Lawrence App. No. 14CA28 8

{¶23} Meanwhile on March 27, 2014, just prior to the trial court’s April 2, 2014

judgment, the magistrate held a hearing on several of the pending motions. At the

hearing Bryant testified that on February 22, 2014, Robinette brought the child to the

McDonald’s in Proctorville a half hour late and stayed inside the restaurant instead of

outside in his car as previously ordered. Nevertheless, Bryant did receive one hour of

visitation with the child, and Bryant experienced no similar problems with visitation after

this one-time occurrence.

{¶24} Bryant admitted that she violated the trial court’s parenting order by not

returning the child to Robinette on January 20, 2014 following her weekend visitation.

Bryant claimed that she did so because of the trial court’s failure to set a hearing on her

first motion for contempt and Robinette’s alleged noncompliance with the parenting

order, but she admitted that these reasons did not excuse her noncompliance. Bryant

claimed she violated the parenting order to force the trial court to schedule a hearing on

her first motion for contempt.1 Bryant testified that her violation of the order was

intentional, that she had previously violated a court order based on unsubstantiated

allegations of sexual abuse, and that she did not regret her decision to violate the

parenting order.

{¶25} Bryant also testified that she had been trained by the federal government

how to track e-mail, that she had software with GPS capability that could tell where

Robinette opened her e-mail, that she tracked Robinette’s and his wife’s telephones,

and that she hired a private investigator to check on the child’s whereabouts when she

was picked up from school. Bryant sent Robinette e-mails claiming that he was in

different locations across the country receiving medical treatment or was moving their
1
However, when the court did schedule a hearing, she still refused to return her daughter to Robinette.
Lawrence App. No. 14CA28 9

child to several different places. As noted by Robinette, Bryant’s e-mails caused him

frustration and stress because they were not conducive to good communication

between the parties. The assistant principal at the child’s school testified that Bryant

sent e-mails to the school that were at times hostile and threatening.

{¶26} At the hearing, Bryant agreed to voluntarily have a mental health

evaluation.

{¶27} As a result of this hearing, the magistrate issued a decision on May 6,

2014 that recommended: 1) denying Bryant’s motion for contempt, 2) granting

Robinette’s motion for contempt, 3) ordering Bryant to reimburse Robinette for his

reasonable costs and attorney fees associated with defending her motions and the

motions to retrieve the child, 4) ordering Bryant to undergo a psychological examination

before any expansion of her parenting time, and 5) denying Bryant’s motion for change

of custody.

{¶28} After Bryant received a psychological evaluation that determined that her

mental health was normal (but did not express an opinion concerning her parenting), the

magistrate held a hearing on Bryant’s motion to reinstate her parenting time and

Robinette’s motion to restrict the parties’ communications. On May 15, 2014, the

magistrate issued a decision, which was again immediately adopted by the trial court,

ordering both Bryant’s parenting time to remain as previously determined and the

appointment of a guardian ad litem for the child to provide the court with guidance on

appropriate parenting orders. The court also ordered the parties to communicate

through the Our Family Wizard website and not to communicate by telephone, e-mail, or

text messages, except for emergency matters regarding the child that must be acted on
Lawrence App. No. 14CA28 10

in less than 48 hours. The court indicated that counsel, the judge, the magistrate, and

the GAL all would have access to the parties’ website communications.

{¶29} Bryant submitted objections to the magistrate’s May 6 and 15 decisions,

and following a hearing, the trial court entered a judgment adopting the magistrate’s

recommendations on August 4, 2014. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶30} Bryant assigns the following errors for our review:

1. The trial court erred and abused its discretion in adopting the January
30, 3014 and the May 15, 2014 Magistrate’s Decisions as they did not
allow the Defendant her 14 days to file objections to the Magistrate’s
Decision before the Judge signed off on the Magistrate’s Decision and
making this a Judgment.

2. The trial court erred and abused its discretion in adopting the January
30, 2014 Magistrate’s Decision and Judgment Entry regarding the
dismal [sic] of Defendant’s Motion for Rule of Contempt.

3. The trial court erred and abused its discretion in adopting the January
30, 2014 Magistrate’s Decision and Judgment Entry regarding the
court not scheduling a hearing after the Defendant timely filed her
Motion for Rule of Contempt.

4. The trial court erred and abused its discretion in adopting the January
30, 2013 Magistrate’s Decision and Judgment Entry regarding the
Defendant’s parenting time being temporarily suspended.

5. The trial court erred and abused its discretion in adopting the April 2,
2014 Magistrate’s Order and Judgment Entry regarding reinstatement
of the Defendant’s parenting time with her minor child on an extremely
limited basis and being supervised without the Defendant being found
in contempt.

6. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry in its finding of facts of the reason the Defendant
didn’t return the minor child after a visitation on January 20, 2014.

7. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry as to denying the Defendant’s Motion of
Lawrence App. No. 14CA28 11

Contempt as he admitted in his testimony to violating the temporary
orders of this court.

8. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry when the court failed to explain the following
items that were included in the Magistrate’s finding of facts, but were
not addressed by the Judge after review.

 The Magistrate’s access to the trial transcript and inclusion in
her decision prior to either party requesting a copy of said
transcript.

 The Magistrate’s statement that “when asked about anonymous
letters that were delivered to plaintiff, his wife, her ex-husband,
and others concerning plaintiff’s health – claiming him to be HIV
positive – defendant did not deny being the author of said
letters.”

 The Magistrate’s statement that “the step-mother’s children
attend the same school.”

9. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry as the court misinterpreted the facts of the
communications between the parties.

10. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry as the Magistrate’s statement “Defendant’s
actions border, if not cross the line, of stalking plaintiff and his wife.”
This is the opinion of the court and not a finding of fact as this is not a
matter that the Plaintiff offered as a formal motion.

11. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry as the Magistrate stated that the Plaintiff was
“still employed with the Corps of Engineers;” however, no proof was
offered by the defendant and the court disallowed the subpoena
request at the hearing on May 15, 2014.

12. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry as to its order “to reimburse plaintiff for is [sic]
his reasonable costs and attorney fees associated with defending the
motions filed by defendant and with the costs and attorney fees for
motions plaintiff had to file in order to retrieve the child (Cost and
attorney fees associated with the Ohio actions only.)”

13. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry for failure to allow the Defendant her required
Lawrence App. No. 14CA28 12

time period to request a Motion for Reconsideration to the Ohio
Supreme Court.

14. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry court admits that the Defendant voluntarily
submitted to a mental hygiene exam and then refused to return the
Defendant’s parenting time after the Defendant presented the results
of said exam and instead appointed a GAL James Payne (not part of
the May 6, 2014 Magistrate’s Decision).

15. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry that the parties shall only communicate via the
website www.ourfamilywizard.com and allowing attorney(s) of record,
the Judge, Magistrate and GAL assigned to view account.

16. The trial court erred and abused its discretion in adopting the August 4,
2014 Judgment Entry that “the parties shall not communicate by
telephone, email, or text messaging except regarding matters of an
emergency nature regarding the child that must be acted upon in less
than 48 hours.” This in effect cuts off all communication avenues
between parent and child.

III. STANDARD OF REVIEW

{¶31} Bryant contests the trial court’s judgment finding her in contempt of its

parenting order for refusing to return the child to Robinette on January 20, 2014, and

denying Bryant’s motion to find Robinette in contempt for showing up a half hour late

and staying inside the McDonald’s during her one-hour visitation on February 22, 2014.

Appellate review of a contempt order is under the highly deferential abuse-of-discretion

standard; therefore, we will not lightly substitute our judgment for that of the issuing

court. State v. Graham, 4th Dist. Highland No. 13CA11, 2014-Ohio-3149, ¶ 24, citing

State ex rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3

N.E.3d 179, ¶ 29. A trial court abuses its discretion when it is unreasonable, arbitrary,

or unconscionable. Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-

Ohio-4733, 999 N.E.2d 614, ¶ 19.
Lawrence App. No. 14CA28 13

{¶32} Bryant also challenges the trial court’s judgment that denied her motion to

change custody of the parties’ daughter and suspended/limited her visitation. Appellate

courts review decisions concerning the modification of parental rights, including

custody, with the utmost deference; a reviewing court will not reverse the trial court’s

decision absent an abuse of discretion. In the Matter of P.A.R., 4th Dist. Scioto No.

13CA3550, 2014-Ohio-802, ¶ 18 (custody); In the Matter of C.J., S.J., and J.J., 4th Dist.

Vinton No. 10CA681, 2011-Ohio-3366, ¶ 11 (visitation). This standard is warranted

because trial courts must have wide latitude in considering the evidence and assessing

the parties’ demeanor, attitude, and credibility. See Davis v. Flickinger, 77 Ohio St.3d

415, 418-419, 674 N.E.2d 1159 (1997). If there is some competent, credible evidence

to support the trial court’s determination, the trial court does not abuse its discretion.

See, e.g., Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998); In

re E.W., 4th Dist. Wash. Nos. 10CA18, 10CA19, and 10CA20, 2011-Ohio-2123, ¶ 1.

“[T]he decision to adopt, reject, or modify a magistrate’s decision will not be reversed on

appeal unless the decision amounts to an abuse of discretion.” In re S.H., 8th Dist.

Cuyahoga No. 10091, 2014-Ohio-4476, ¶ 7; In re K.R., 7th Dist. Jefferson No. 10 JE 9,

2010-Ohio-6582, ¶ 8.

IV. PRELIMINARY MATTER

{¶33} Before addressing the merits of Bryant’s assignments of error under the

required deferential standard of review, we first consider a preliminary issue. Bryant is

representing herself pro se, as she did during most of the pertinent proceedings below.

Under App.R. 16(A)(7), an appellant’s brief shall include “[a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for
Lawrence App. No. 14CA28 14

review and the reasons in support of the contentions, with citations to the authorities,

statutes, and parts of the record on which appellant relies.” (Emphasis added.)

Bryant’s appellate brief contains no citations to any authorities, statutes, or parts of the

record that support her assignments of error. It is within our discretion to disregard any

assignment of error that fails to present any citations to cases or statutes in support.

See State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 34, citing Fry

v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, ¶ 12; App.R.

12(A)(2); see also J&H Reinforcing & Structural Erectors, Inc. v. Ohio School Facilities

Comm., 10th Dist. Franklin No. 13AP-732, 2014-Ohio-1963, ¶ 7 (“Where a party fails to

cite authority in support of an assignment of error, the court may disregard the assigned

error under App.R. 16(A)(7) and 12(A)(2)”).

{¶34} Nevertheless, given the importance of the parental rights at issue and our

general practice of affording pro se litigants a degree of leniency, we will address

Bryant’s assignments of error in the interests of justice. See McKim v. Finley, 4th Dist.

Wash. No. 13CA5, 2014-Ohio-4012, ¶ 9. That said, our leniency in these

circumstances is not unlimited—we will not create arguments from assignments of error

that are incomprehensible; nor will we excuse pro se litigants from ignoring the pertinent

Rules of Civil Procedure. Id.

V. LAW AND ANALYSIS

A. Our Jurisdiction

{¶35} In her second, third, and part of her first assignment of error, Bryant

challenges the appealable portion of the trial court’s April 2, 2014 judgment that

dismissed her first motion for contempt because Bryant failed to appear and submit
Lawrence App. No. 14CA28 15

evidence at the January 2014 hearing. The dismissal of Bryant’s contempt motion

constituted a final appealable order. See State ex rel. DeWine v. C & D Disposal

Technologies, L.L.C., 7th Dist. Jefferson No. 11 JE 19, 2012-Ohio-3005, ¶ 16-17.

{¶36} “Generally, an appeal of a judgment or final order must be filed within 30

days from the entry of the judgment or order.” In re H.F., 120 Ohio St.3d 499, 2008-

Ohio-6810, 900 N.E.2d 607, ¶ 10. “ ‘If a party fails to file a notice of appeal within thirty

days as required by App.R. 4(A), we do not have jurisdiction to entertain the appeal.

The timely filing of a notice of appeal under this rule is a jurisdictional prerequisite to our

review.’ ” Chase Home Finance, L.L.C. v. Gersten, 4th Dist. Ross No. 12CA3314,

2013-Ohio-252, ¶ 11, quoting Hughes v. A & A Auto Sales, Inc., 4th Dist. Lawrence No.

08CA35, 2009-Ohio-2278, ¶ 7. The notice of appeal in this appeal bears a file stamp

date of August 29, 2014 and is clearly untimely. Therefore, we lack jurisdiction to

consider the merits of these assignments of error and dismiss this portion of Bryant’s

appeal.

B. Trial Court’s Adoption of Magistrate’s Decisions Before 14-Day
Period for Objections has Expired

{¶37} In her first assignment of error Bryant contends that the trial court erred by

adopting the magistrate’s January 30, 2014 and May 15, 2014 decisions before the

expiration of the 14-day period for objections.2 The trial court adopted the magistrate’s

decisions on the same dates they were issued.

{¶38} The trial court committed no error in entering judgment on the magistrate’s

decisions before the 14-day period to file objections had expired. Juv.R. 40(D)(4)(e)(i)

2
We have jurisdiction to review this portion of the first assignment of error and the subsequent
assignment of errors because the trial court’s final appealable order was not entered until August 4, 2014
and her notice of appeal was entered on August 29, 2014. Also, see Section C, that follows.
Lawrence App. No. 14CA28 16

expressly authorizes trial courts to “enter a judgment either during the fourteen days

permitted by Juv.R. 40(D)(3)(b)(i) for the filing of objections to a magistrate’s decision or

after the fourteen days have expired.” See also In re K.P.R., 197 Ohio App.3d 193,

2011-Ohio-6114, 966 N.E.2d 952, ¶ 8 (12th Dist.). “If the court enters a judgment

during the fourteen days permitted by Juv.R. 40(D)(3)(b)(i) for the filing of objections,

the timely filing of objections to the magistrate’s decision shall operate as an automatic

stay of execution of the judgment until the court disposes of those objections and

vacates, modifies, or adheres to the judgment previously entered.” Juv.R.

40(D)(4)(e)(i).

{¶39} Bryant incurred no prejudice by the trial court’s entry of judgment on these

magistrate’s decisions because she filed timely objections, which the trial court

subsequently considered and rejected. Therefore, we overrule that portion of Bryant’s

first assignment of error that is properly before us.

C. Trial Court’s Interim Suspension and Limited Reinstatement
of Bryant’s Parenting Time

{¶40} In Bryant’s fourth assignment of error she asserts that the trial court erred

in adopting the January 30 2014 magistrate’s decision, which temporarily suspended

her parenting time. In her fifth assignment of error Bryant contends that without finding

her in contempt the trial court erred in its April 2, 2014 judgment, which reinstated her

parenting time on an extremely limited basis.

{¶41} The trial court’s April 2, 2014 judgment overruled Bryant’s objections to: 1)

the magistrate’s January 30, 2014 decision temporarily suspending her parenting time

and 2) to the magistrate’s February 2014 interim decision reinstating Bryant’s parenting

time on a limited basis for one-hour Saturday visitations at McDonald’s twice a month.
Lawrence App. No. 14CA28 17

Unlike the portion of its April 2, 2014 judgment dismissing Bryant’s first contempt

motion, the trial court’s adoption of these temporary orders was not immediately

appealable. See, e.g., O’Brien v. O’Brien, 8th Dist. Cuyahoga No. 77788, 2001 WL

66238, *2 (interim visitation order does not constitute a final appealable order). Thus,

we have jurisdiction to review them now because they became final by virtue of the

August 4, 2014 order.

{¶42} The trial court did not abuse its discretion in temporarily suspending

Bryant’s visitation because Robinette’s uncontroverted testimony at the January 2014

hearing established that Bryant had violated the court’s parenting order by refusing to

return the child to Robinette on January 20, 2014 following weekend visitation. We

overrule Bryant’s fourth assignment of error.

{¶43} Bryant’s fifth assignment of error contests the trial court’s judgment

reinstating Bryant’s visitation on a limited basis. However, her argument concerns

matters that are not part of the April 2, 2014 judgment, but matters subsequent thereto

that are raised in some of her remaining assignments. See State v. Lamb, 4th Dist.

Highland No. 14CA3, 2014-Ohio-2960, ¶ 13, quoting State v. Harlow, 4th Dist.

Washington No. 13CA29, 2014–Ohio–864, ¶ 10 (“ ‘Appellate courts review assignments

of error—we sustain or overrule assignments of error and not mere arguments’ ”).

Moreover, given the evidence introduced in the January and February 2014

proceedings, the trial court did not abuse its broad discretion in determining that

Bryant’s failure to comply with the parenting order necessitated a limitation of her

parenting time pending a full hearing on Robinette’s motion for contempt. We overrule

Bryant’s fifth assignment of error.
Lawrence App. No. 14CA28 18

D. Contempt

{¶44} In her sixth assignment of error Bryant contends that the trial court erred

by not including in its findings of fact the reasons she had asserted for not returning the

child to Robinette on January 20, 2014. In her seventh assignment of error Bryant

contends that the trial court erred in denying her second motion for contempt because

Robinette admitted to violating the temporary visitation order by showing up a half-hour

late and not staying outside McDonald’s during Bryant’s one-hour visitation on February

22, 2014.

{¶45} Contempt is “conduct which brings the administration of justice into

disrespect, or which tends to embarrass, impede or obstruct a court in the performance

of its functions.” Windham Bank v. Tomasczyk, 27 Ohio St.2d 55, 271 N.E.2d 815

(1971), paragraph one of the syllabus; State v. Graham, 4th Dist. Highland No. 13CA11,

2014-Ohio-3149, ¶ 25. Contempt proceedings are classified as civil or criminal based

on the purpose to be served by the sanction. State ex rel. Corn v. Russo, 90 Ohio St.3d

551, 554-555, 740 N.E.2d 265 (2001). “Civil contempt sanctions are designed for

remedial or coercive purposes and are often employed to compel obedience to a court

order[;] [c]riminal contempt sanctions, however, are punitive in nature and are designed

to vindicate the authority of the court.” Id.at 555. Unlike civil contempt, criminal

contempt requires proof or a purposeful, willing, or intentional violation of a trial court’s

order. Delawder v. Dodson, 4th Dist. Lawrence No. 02CA27, 2003-Ohio-2092, ¶ 10.

Civil contempt must be established by clear and convincing evidence, whereas criminal

contempt requires proof beyond a reasonable doubt. Id.
Lawrence App. No. 14CA28 19

{¶46} The trial court did not err by failing to refer to the reasons Bryant had

asserted for not returning the parties’ child to Robinette on January 20, 2014 following

her weekend visitation. As Bryant herself testified, her reasons for not complying with

the trial court’s parenting order did not excuse her noncompliance. And she admitted

that she violated the parenting order intentionally and without regret. Under these

circumstances the evidence supported the trial court’s finding of contempt regardless of

whether it is considered to be criminal or civil contempt. The trial court did not abuse its

discretion by omitting any reference to Bryant’s unjustified reasons for her

contemptuous conduct. We overrule Bryant’s sixth assignment of error.

{¶47} In her seventh assignment of error Bryant asserts that the trial court

abused its discretion in failing to find Robinette in contempt of the court’s interim

visitation order for showing up a half hour late and not staying outside the McDonald’s

during her one-hour visitation. There was no indication that Robinette’s one-time failure

to strictly comply with the interim order was intentional or purposeful so as to support a

finding of criminal contempt. And because the purpose of a civil contempt motion is to

compel compliance with the court’s order rather than to punish disobedience, when

compliance becomes moot, the contempt proceeding is also moot. See Sheridan v.

Hagglund, 4th Dist. Meigs No. 13CA6, 2014-Ohio-4031, ¶ 22. Robinette’s failure to

strictly comply with the order came on the first afternoon visitation scheduled under the

interim plan; once he was apprised that his interpretation of the order was incorrect, no

further violations of the order occurred. Even on the date in question, Bryant received

one hour of visitation with the child, as contemplated by the interim order. Because the

evidence established that Robinette’s isolated noncompliance with the order was
Lawrence App. No. 14CA28 20

inadvertent and did not reoccur, the trial court did not abuse its discretion in declining to

find Robinette in civil contempt. We overrule Bryant’s seventh assignment of error.

E. Failure to Address Certain Magistrate Findings

{¶48} In her eighth assignment of error Bryant argues that the trial court abused

its discretion in its August 4, 2014 judgment by failing to explain why it left out three

findings from the magistrate’s May 6, 2014 decision after she objected to them. These

three statements concerned: 1) the magistrate’s access to the trial transcript before

either party requested a copy, 2) the fact that Bryant did not deny being the author of

anonymous letters delivered to Robinette, his wife, and others falsely claiming that

Robinette was HIV positive, and 3) the fact that Robinette’s wife’s children attended the

same school as the parties’ daughter.

{¶49} We need not address this argument because “ ‘in order for us to reverse

the trial court’s judgment, the error must be prejudicial.’ ” Chase Home Finance, L.L.C.

v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, ¶ 34, quoting Russell v.

Gallia Cty. Loc. School Bd., 80 Ohio App.3d 797, 800, 610 N.E.2d 1130 (4th Dist.

1992), citing Civ.R. 61 (“The court at every stage of the proceeding must disregard any

error or defect in the proceeding which does not affect the substantial rights of the

parties”). The trial court ultimately rejected the contested findings in its judgment.

Therefore, it implicitly sustained Bryant’s objections to them and it did not rely in them in

its judgment. Civ.R. 53 (D)(4)(b) allows the trial court to modify a magistrate’s decision,

which is what occurred here. Bryant has not established prejudicial error. We overrule

Bryant’s eighth assignment of error.

F. Communications between the Parties
Lawrence App. No. 14CA28 21

{¶50} In her ninth and tenth assignments of error Bryant contends that the trial

court erred by misrepresenting the communications between the parties and stating that

Bryant’s actions bordered on stalking Robinette and his wife. The trial court did not

abuse its discretion in its findings about the parties’ communications because these

findings are supported by competent, credible evidence. See Middendorf, 82 Ohio St.3d

at 401, 696 N.E.2d 575. Testimony established that Bryant tracked the locations where

Robinette and his wife opened her e-mail, that she tracked Robinette’s and his wife’s

telephones, and that she hired a private investigator to check on the child when she was

picked up from school. Testimony also establishes that the nature of the e-mails Bryant

sent to Robinette and the child’s school was at times threatening and harassing. We

overrule Bryant’s ninth and tenth assignments of error.

G. Robinette’s Employment

{¶51} In her eleventh assignment of error Bryant asserts that the trial court erred

in finding that Robinette is employed by the U.S. Corps of Army Engineers because

there was no evidence to support the finding. Again, Bryant is mistaken. Robinette

testified at the March 27, 2014 proceeding that he was working full time with the U.S.

Army Corps of Engineers. This evidence was uncontroverted. We overrule Bryant’s

eleventh assignment of error.

H. Costs and Attorney Fees

{¶52} In her twelfth assignment of error Bryant asserts that because the

magistrate addressed only attorney fees for the period from January 1, 2014 to March

27, 2014. The trial court erred in its August 4, 2014 judgment by ordering that she pay

all costs and attorney fees.
Lawrence App. No. 14CA28 22

{¶53} Bryant does not deny that the trial court is authorized to award attorney

fees and costs. See, e.g., R.C. 3127.42(A) (“A court shall award the prevailing party in

an action to enforce a child custody determination, including a state, necessary and

reasonable expenses incurred by or on behalf of the party, including costs * * * [and]

attorney fees * * *”) And as already noted, Civ. R. 53 (D)(4)(b) allows the trial court to

modify the magistrate’s decision, which it may have done even in the absence of an

objection.

{¶54} We overrule Bryant’s twelfth assignment of error.

I. Adoption of Magistrate’s May 15, 2014 Decision

{¶55} In her thirteenth assignment of error Bryant contends by adopting the

magistrate’s May 15, 2014 decision on the same day, the trial court denied her the right

to file objections within 14 days. As we indicated previously in rejecting the same

contention in her first assignment of error, the trial court was authorized by Juv.R.

40(D)(4)(e)(i) to enter a judgment adopting the magistrate’s decision before the 14-day

period expired. Bryant was not deprived of her right to due process because she filed

timely objections, which the court considered and overruled in its August 4, 2014

judgment.

{¶56} Bryant further claims that the trial court lacked jurisdiction to adopt the

magistrate’s decision on May 15, 2014 because she still had time to file a motion for

reconsideration in the Supreme Court from its decision not to accept jurisdiction in

Robinette’s second appeal. But the Supreme Court had already declined jurisdiction on

May 14 and that appeal involved the trial court’s clarification of its original parenting time
Lawrence App. No. 14CA28 23

order, which was not involved in the May 14 proceedings. We overrule Bryant’s

thirteenth assignment of error.

J. Reinstatement of Parenting Time

{¶57} In her fourteenth assignment of error Bryant asserts that the trial court

erred in failing to reinstate her parenting time after she voluntarily submitted to a

psychological evaluation, which showed her to be in the normal range. Bryant

misinterpreted the trial court’s order to mean that she would automatically have her full

parenting time reinstated if she passed a mental-health evaluation. Neither the trial

court nor the magistrate indicated this.

{¶58} Nor did the trial court abuse its discretion by failing to grant Bryant’s

request for full reinstatement of her parenting time; Bryant failed to show remorse for

her failure to abide by the trial court’s orders, including failing to return the child to

Robinette without a justifiable excuse. And she failed to indicate that she would comply

with those orders in the future. We overrule Bryant’s fourteenth assignment of error.

K. Communication Restrictions

{¶59} In her fifteenth assignment of error Bryant asserts that the trial court erred

in ordering the parties to communicate through the Our Family Wizard website and

permitting attorneys, the judge, magistrate, and guardian ad litem to access the

communications. In her sixteenth assignment of error Bryant claims that the trial court

erred by precluding the parties from communicating by telephone, e-mail, or text

messages, except for emergency matters regarding the child that require action in less

than 48 hours. Given Bryant’s documented history of using standard methods of

communication to harass and threaten Robinette and his wife, the trial court did not
Lawrence App. No. 14CA28 24

abuse its discretion in ordering the communication restrictions, which also permit the

court, guardian ad litem, and the parties to monitor them. See Wright v. Wright, 5th

Dist. Stark No. 2012CA00232, 2013-Ohio-4138, ¶ 23 (affirming the trial court’s

determination that mother’s actions in stopping use of court-ordered Our Family Wizard

computer program to aid the parties in communicating about their child constituted a

change of circumstances justifying the termination of a shared parenting plan and

change of custody to the father). We overrule Bryant’s fifteenth and sixteenth

assignments of error.

VI. CONCLUSION

{¶60} Bryant has not met her burden to establish that the trial court abused its

considerable discretion in finding her in contempt of the court’s parenting order,

declining to find Robinette in contempt of the court’s interim visitation order, denying her

motion to change custody, or in any of the other orders that she contests on appeal. On

her motion for change of custody, she failed to establish any change of circumstances,

which is the threshold determination. P.A.R., 4th Dist. Scioto No. 13CA3550, 2014-

Ohio-802, at ¶ 20.

{¶61} We overrule the portion of Bryant’s appeal that is properly before us and

dismiss the portion that challenges the trial court’s dismissal of his first contempt motion

for lack of jurisdiction.

JUDGMENT AFFIRMED IN PART
AND APPEAL DISMISSED IN PART.
Lawrence App. No. 14CA28 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND THE APPEAL IS
DISMISSED IN PART and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas, Probate/Juvenile Division, to carry this judgment into
execution.

Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
Lawrence App. No. 14CA28 26

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________
William H. Harsha, 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.