Koehler v. Koehler

[Cite as Koehler v. Koehler, 2018-Ohio-4933.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

MICHELLE KOEHLER, :
CASE NOS. CA2017-12-016
Plaintiff-Appellant/Cross-Appellee, : CA2017-12-017

: OPINION
- vs - 12/10/2018
:

MARTIN KOEHLER, :

Defendant-Appellee/Cross-Appellant. :

APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2012-0058

T. David Burgess Co., L.P.A., T. David Burgess, Kristopher Burgess, 110 North Third Street,
Williamsburg, Ohio 45176-1322, for appellant/cross-appellee

Timothy J. Morris, 4030 Mt. Carmel Tobasco Road, #316, Cincinnati, Ohio 45255, for
appellee/cross-appellant

PIPER, J.

{¶ 1} Michelle Koehler ("Mother") appeals from the decisions of the Brown County

Court of Common Pleas, Domestic Relations Division, which found Martin Koehler ("Father")

in contempt for failing to honor the former married couple's parenting time agreement and

awarded Mother attorney fees. Father cross-appeals. For the reasons described below, this

court affirms the decisions of the domestic relations court.
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{¶ 2} Mother and Father married in 2001. Three children were born of the marriage.

In 2012, Mother filed for divorce. In 2013, the court issued the parties a divorce decree,

which incorporated the terms of a shared parenting agreement. Under the agreement,

Mother and Father enjoyed equal parenting time.

{¶ 3} In September 2014, Father moved to reallocate parental rights and

responsibilities and sought sole custody of the children. Father alleged that Mother was

abusing alcohol and that the children were no longer safe in her care.

{¶ 4} The court appointed the children a guardian ad litem ("GAL") to investigate

Father's allegations. The matter was eventually scheduled for hearing in August 2015.

However, the parties reached a compromise.

{¶ 5} On August 18, 2015, the court issued an agreed entry modifying parental rights

and responsibilities. Father became sole custodial parent of the children and Mother

received parenting time every other weekend and every other Wednesday. Mother agreed to

refrain from consuming alcohol 24 hours prior to and during her parenting time.

{¶ 6} Following the agreement, Mother's first parenting time occurred on the weekend

consisting of August 21, 22, and 23, 2015. On Saturday, August 22, the eldest child

allegedly witnessed Mother drinking an alcoholic beverage. The child reported this

observation to Father. Father sent an electronic message to Mother warning her that he

would withhold the children if he learned of future violations of the agreed entry.

{¶ 7} Following the weekend visit, Mother's next parenting time with the children was

to occur on Wednesday August 26, 2015. However, prior to the exchange, Father informed

Mother that he would not deliver the children for her parenting time and would be seeking

court intervention.

{¶ 8} On August 27, 2015, Father moved for a contempt finding and asked the court

to modify the agreed entry and suspend Mother's parenting time. Father alleged that Mother
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violated the agreed entry by consuming alcohol during her parenting time and that Father had

learned of an earlier possible attempt to commit suicide by Mother. Father thereafter

withheld the children from parenting time with Mother. Father did not seek any domestic

relations emergency or interim orders.

{¶ 9} Due to Father's request to modify the agreed entry, the domestic relations court

re-appointed the GAL to investigate and issue a written recommendation. The court also

appointed a psychologist, Dr. Charles Handel, to interview the family and produce a custody

recommendation.

{¶ 10} In December 2015 the GAL produced his first report to the court. The GAL

had concerns with Mother's alcoholism. However, it appeared that Mother had been

receiving treatment and was compliant with her treatment program.

{¶ 11} Additionally, the GAL was concerned about an apparent attempted suicide,

which occurred shortly after Father informed Mother that he would not deliver the children for

Mother's August 26, 2015 parenting time. Mother informed the GAL that she attempted

suicide on August 27 by taking over-the-counter sleeping aids. She immediately contacted

her boyfriend, Tim Watson, a police officer, to report the attempt.

{¶ 12} Watson contacted local police, who transported Mother to the hospital where

she remained for six days in a psychiatric ward. Mother explained that she was under

tremendous stress and the suspension of her parenting time was "too much for her to deal

with." Mother acknowledged that her actions were foolish. The GAL characterized Mother's

actions as a "cry for help" rather than a true attempt at suicide as the number of pills she

consumed would not have caused her death and she immediately contacted Watson.

{¶ 13} The GAL also stated that he was concerned with perceived changes in the

behavior of the children since the denial of Mother's parenting time. The children's attitudes

toward their Mother had shifted negatively and the children could not provide a reasonable
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explanation for the change.

{¶ 14} Ultimately, the GAL recommended that the children undergo a psychological

evaluation and that regular visits with Mother be resumed. The GAL then moved the court to

order parenting time with Mother.

{¶ 15} In February 2016, Mother moved for contempt for Father's continued refusal to

honor her parenting time. Mother's filing noted that Father testified at a deposition that he

intended to continue to deny Mother her parenting time until Dr. Handel produced his report.

{¶ 16} In April 2016, by agreement of the parties, Mother had some parenting time

with the children. The visitations were agreed to be supervised by Tim Watson.

{¶ 17} In May 2016, Father moved for contempt a second time, alleging that Mother

violated an agreed entry on parenting time by not having Tim Watson supervise the children

at all times.

{¶ 18} In May 2016, Dr. Handel produced a written report and custody evaluation.

The report consisted of psychological evaluations and interviews with both parents and

sessions with the children. Dr. Handel opined that the children, as a group, had become

alienated from Mother during the time Father denied Mother's parenting time. And all three

children provided Dr. Handel with the exact same response concerning their own desire with

respect to the custody arrangement. Interestingly, the children's responses happened to be

identical to Father's proposal for the ongoing custody arrangement.

{¶ 19} Dr. Handel recommended that the children re-establish their relationship with

Mother as soon as possible, in a manner in which the children were comfortable. Dr. Handel

noted the family would need the assistance of a therapist given the level of alienation present

between the children and Mother. Following Dr. Handel's report, Father continued to deny

Mother parenting time.

{¶ 20} In July 2016, the GAL filed a supplemental report. The GAL recommended
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that the court designate Father primary residential parent because of concerns over Mother's

inability to fully acknowledge her alcoholism. However, the GAL stated that he found Father's

actions of unilaterally denying Mother any contact with the children improper and had caused

the children to become alienated from Mother.

{¶ 21} The GAL opined that Father's initial decision to withhold Mother's parenting

time was reasonable, but his continued denial of parenting time was unjustified and that

Father was "uncompromising and unreasonable" during the GAL's attempts to mediate

parenting time with Mother. The GAL suggested that the children were learning to distrust

their Mother because of the way Father treated Mother. Ultimately, the GAL recommended

that the court enforce the original parenting order and order that Mother and the children

enter counseling.

{¶ 22} Prior to the hearing on the various motions, Mother filed a liminal motion

asking the court to exclude from evidence Mother's conduct known by Father prior to the date

of the agreed entry, i.e., August 18, 2015. Mother reasoned that Father's denial of parenting

time was allegedly for conduct occurring after August 18, 2015. A magistrate sustained

Mother's motion, excluding from evidence all facts prior to August 18, 2015, with the

exception of facts occurring prior to August 18, 2015 which were newly discovered.

{¶ 23} At the hearing, Father called the couple's elder daughter to testify. She was 13

years old at the time she allegedly witnessed Mother consuming an alcoholic beverage. The

daughter was sitting next to her Mother in a vehicle driven by her uncle on August 22, 2015.

They were driving to her younger sibling's soccer game. Her Mother asked her uncle's

girlfriend to pass her a beer. She watched as the girlfriend passed Mother a Bud Light can.

Her Mother consumed two Bud Lights during the drive.

{¶ 24} The daughter could not recall when she told Father about this incident. The

daughter also testified concerning an event when she was being driven by Mother and had
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an argument about Mother's smoking habit. Mother left her on the side of the road and drove

away. She was alone for a few minutes before Mother returned. It was not clear from the

daughter's testimony when this alleged event occurred, but it likely occurred prior to Mother's

parenting time in August 2015. The daughter testified that she told her Father about this

incident but was not certain when she told him.

{¶ 25} Father testified that he received a text message from his daughter stating that

Mother drank beer on the way to a soccer game. Over objection, the court allowed Father to

testify that, subsequent to August 18, 2015, the daughter and his son told him about the

alleged incident where Mother left the daughter on the side of the road. Father further

testified that on August 23, 2015, his son told him that Mother said she was going to kill the

children and told them the specific order in which they would die. Father testified that he

became aware, sometime after he denied Mother's parenting time on August 26, that Mother

had attempted suicide again.

{¶ 26} During Mother's case-in-chief, the GAL testified about his investigation and

recommendations. He opined that Mother had an alcohol problem and the children feared

her when she drank. However, Mother had successfully participated in alcohol treatment.

{¶ 27} Tim Watson testified that he was currently married to Mother but had been her

boyfriend at the time of the alleged alcohol consumption incident. Watson was a police

officer with the Cincinnati Police Department and had training related to persons impaired by

alcohol. He met with Mother at the soccer game, embraced and kissed her, and did not

detect that she had consumed an alcoholic beverage. Watson agreed that Mother had

previously had an alcohol problem. She had been in a full day alcohol treatment program for

three to four months. But she had not consumed alcohol, to his knowledge, since July 2015.

{¶ 28} Watson admitted that he had not supervised the children on one weekend that

Mother had parenting time. He had to work an overnight shift and the following morning he
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had to go to church.

{¶ 29} Mother testified and denied consuming alcohol in the vehicle. She had quit

drinking alcoholic beverages. Mother admitted that after Father informed her that he was

going to withhold the children she took some sleeping pills and wrote a note. She could not

recall what she wrote. She subsequently spent six days in the hospital, which included a

three-day psychiatric hold. She explained that this was an attempt to get someone to listen to

her because of how she felt about Father's decision to keep the children away from her and

that she did not intend to commit suicide.

{¶ 30} A magistrate issued a decision recommending that the court continue the

custody arrangement as set forth in the August 2015 agreed entry. The magistrate further

recommended that the court find Father in contempt for failing to allow Mother parenting time

after May 2016. The magistrate explained that by May 2016 both the GAL and Dr. Handel

had recommended that Mother receive parenting time and Father's refusal to abide by these

recommendations and the agreed entry was "completely unreasonable."

{¶ 31} The magistrate further recommended that Mother not be found in contempt.

The court reasoned that Tim Watson had supervised the children, except for a few times

when he could not because of other obligations, and there was substantial compliance with

the court's order. The magistrate's decision further provided that each party would be

responsible for their own attorney fees and share court costs equally.

{¶ 32} Mother objected to the magistrate's decision.1 The court overruled Mother's

objections and adopted the magistrate's decision except with respect to attorney fees and

court costs. The court remanded the matter to the magistrate to reconsider the imposition of

attorney fees, various expenses, and court costs for the time the court found Father in

1. Father filed objections but later withdrew them.
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contempt of court.

{¶ 33} The magistrate then issued a decision recommending that the court order

Father to pay Mother $5,728.80 or 25 percent of her attorney fees associated with the matter.

{¶ 34} Mother again objected to the magistrate's decision. The court modified the

decision with respect to the attorney fee award and found that the parties should split their

attorney fees equally. Accordingly, the court ordered Father to pay Mother $2,990.39, which

would equalize the fees spent by the parties.

{¶ 35} Mother raises two assignments of error in her appeal. Father raises three

assignments of error in his cross-appeal.

{¶ 36} Mother's Assignment of Error No. 1:

{¶ 37} THE TRIAL COURT ERRED, AND ABUSED ITS DISCRETION IN NOT

FINDING APPELLEE IN CONTEMPT CONCERNING ALL DENIALS OF PARENTING TIME

TO APPELLANT BETWEEN AUGUST 23, 2015 AND MAY 17, 2016.

{¶ 38} Mother argues that the court erred in finding that Father was not in contempt

for denying her parenting time between August 2015 and May 2016. Mother argues that the

court erroneously concluded that Father's failure to abide by the agreed entry was

reasonable, that the court's decision was premised on inadmissible hearsay evidence, and

that the court improperly excluded relevant evidence. Mother further contends that the court

abused its discretion because the allegations against her did not justify Father's denial of her

parenting time.

{¶ 39} "Disobedience to court orders may be punished by contempt." Cottrell v.

Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 11. To support a

contempt finding, the moving party must establish by clear and convincing evidence that a

valid court order exists, that the offending party had knowledge of the order, and that the

offending party violated such order. Maloney v. Maloney, 12th Dist. Warren No. CA2015-10-
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098, 2016-Ohio-7837, ¶ 13. A trial court's decision in a contempt proceeding will not be

reversed on appeal absent an abuse of discretion. Id. at ¶ 14. An abuse of discretion

implies that the court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

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

{¶ 40} After a thorough review of the record, this court does not find that the domestic

relations court abused its discretion. The domestic relations court found that Father failed to

prove the allegations against Mother by clear and convincing evidence. However, the court

found that while Father could not prove his allegations by the requisite standard of proof,

Father believed they occurred. This belief was reasonable when coupled with Father's

knowledge of Mother's contemporaneous suicide attempt.

{¶ 41} The record supports the decision. The evidence that Mother engaged in any

of the allegations was uncorroborated. The only witness who provided direct evidence was

the elder daughter, whose testimony differed from her interview with Dr. Handel. However,

the communications between the parties would support the conclusion that Father learned of

the allegations at the time he claimed and thereafter made the decision to withhold parenting

time for the children's safety. Mother thereafter was hospitalized following a possible suicide

attempt, which Father learned of, and which provided him with additional reason to withhold

parenting time.

{¶ 42} Mother argues that the allegations against her, and specifically, the allegation

of consuming an alcoholic beverage, were not sufficiently extraordinary to justify the denial of

her parenting time. This court has held that the right of visitation should be denied only

under extraordinary circumstances "such as the unfitness of the non-custodial parent or a

showing that the visitation would cause harm." Ware v. Ware, 12th Dist. Warren No.

CA2001-10-089, 2002 Ohio App. LEXIS 887, *5 (Mar. 4, 2002).

{¶ 43} The evidence in this case reflects that Mother had previously struggled with
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alcoholism and the children had been negatively affected by Mother's alcoholism. The issue

was so serious that the parties specifically agreed that Mother would refrain from consuming

alcohol within 24 hours and during her parenting time with the children.

{¶ 44} If the allegation was true that Mother was consuming alcoholic beverages and

doing so during her parenting time, the domestic relations court could find that Father was

justified in refusing parenting time on an emergency basis. Moreover, it is undisputed that

Mother was placed under a psychiatric hold for a suicide attempt. Under these

circumstances, this court does not find that the domestic relations court abused its discretion

in finding that Father's concerns and resulting actions were justified. Moreover, after

withholding the children from Mother's parenting time, Father immediately filed motions

bringing the matter to the court's attention. This court finds nothing that could be construed

as unreasonable, arbitrary, or unconscionable in the court's decision-making progress.

{¶ 45} Mother next argues that the court improperly considered hearsay evidence in

rendering its decision. Decisions regarding the admission of evidence are within the sound

discretion of the domestic relations court and may not be reversed absent an abuse of

discretion. Proctor v. NJR Properties, L.L.C., 175 Ohio App.3d 378, 2008-Ohio-745, ¶ 14

(12th Dist.).

{¶ 46} Mother objected on hearsay grounds to Father's testimony regarding

statements made by the children concerning the allegations against Mother. The court

overruled the objection on the basis that the children were physically present in the

courthouse, and presumably available to testify.

{¶ 47} Hearsay is "a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R.

801(C). The alleged statements by the children to Father were not raised while the children

were testifying at the hearing. Thus, the statements were presumptively hearsay and
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inadmissible if offered to prove that Mother engaged in the alleged behavior. Evid.R. 802.

Regardless, this court finds that there was no prejudice resulting from the testimony. The

lower court specifically found that Father did not prove the allegations. Moreover, it appears

that the court considered the statements for a permissible reason, i.e., not for the truth of the

matter asserted but to establish Father's explanation for denying Mother's parenting time.

{¶ 48} Next, Mother argues that the court improperly considered evidence of her

conduct prior to August 18, 2015, despite ruling in her favor on her motion in limine.

Specifically, Mother contends that the court allowed into evidence Father's testimony

concerning the allegations relayed by the children and Mother's attempted suicide. However,

the children's statements to Father allegedly occurred after August 18, 2015. The suicide

attempt was approximately a week after the agreed entry. Thus, this evidence was not

implicated by the liminal ruling. We further note that a motion in limine is strictly a tentative,

preliminary, or presumptive ruling and the admission or exclusion of evidence is ultimately

determined at the time evidence is presented. Wilhoite v. Kast, 12th Dist. Warren No.

CA2001-01-001, 2001-Ohio-8621. Accordingly, this court overrules Mother's first assignment

of error.

{¶ 49} Mother's Assignment of Error No. 2:

{¶ 50} THE COURT ERRED BY NOT AWARDING THE APPELLANT FULL

ATTORNEYS' FEES AND ADDITIONAL PARENTING TIME PURSUANT TO R.C. 3109.051.

{¶ 51} Mother argues that the court erred in ordering that she and Father share

equally in attorney fees. Mother also argues that the court should have awarded her

additional compensatory parenting time.

{¶ 52} According to R.C. 3109.051(K), "if any person is found in contempt of court for

failing to comply with or interfering with any order or decree granting parenting time rights, * *

* the court that makes the finding * * * shall assess all court costs arising out of the contempt
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proceeding against the person and require the person to pay any reasonable attorney's fees

of any adverse party, as determined by the court, that arose in relation to the act of

contempt."

{¶ 53} The parties stipulated to the reasonableness of the attorney fees charged by

counsel on both sides. However, Mother argues that the court's determination of the fee split

was inequitable and failed to take into consideration the relative income of the parties as well

as the conduct of the parties.

{¶ 54} The domestic relations court found that the parties did not submit evidence on

income. Mother seemingly acknowledges this point as the only evidence she refers to are

documents incorporated into the divorce decree and the affidavits of income initially filed in

the case. However, these documents were four and five years old respectively. There is no

indication that Mother referred the court to these documents as accurate estimates of the

current income of the parties at the hearing.

{¶ 55} With regard to the conduct of the parties, the court did not cite any specific

conduct underlying its finding that an equal split of fees was equitable. However, the court

stated that it had considered the transcripts of the original trial proceedings in rendering its

decision on Mother's objections. This court does not find the domestic relations court's

decision to equalize attorney fees between the parties was unreasonable, arbitrary, or

unconscionable.

{¶ 56} With respect to compensatory parenting time, a court may award such

parenting time to the party who's parenting rights were interfered with by the other party if

such an award is in the children's best interest. R.C. 3109.051(K). The court's decision

concerning compensatory visitation will not be disturbed absent an abuse of discretion. Rapp

v. Pride, 12th Dist. Butler No. CA2009-12-311, 2010-Ohio-3138, ¶ 23.

{¶ 57} The court ordered Mother to receive compensatory parenting time consisting
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of multiple weeks of extended visits in the summers of 2017 through 2019. Mother argues

that the compensatory time awarded was "not enough" and she should have been awarded

additional time so that she could repair the alienation caused by Father's decision to refuse

her parenting time. Mother does not specify what amount of additional parenting time would

be sufficient.

{¶ 58} This court does not find an abuse of discretion. The domestic relations court's

decision considered the length of time Mother was denied her parenting time and thoughtfully

set forth a reasonably paced schedule of additional parenting time over three summers

permitting Mother significant and meaningful time with her children. The court overrules

Mother's second assignment of error.

{¶ 59} Father's Assignment of Error No. 1:

{¶ 60} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING

THAT APPELLEE WAS IN CONTEMPT FOR WITHHOLDING PARENTING TIME.

{¶ 61} Father argues that the court erred in finding him in contempt for his continued

denial of Mother's parenting time after May 2016. Father essentially argues that he remained

justified in withholding visitation given Mother's issues with alcoholism, her mental health, and

the new allegations the children relayed to him concerning Mother's behavior.

{¶ 62} Father did not object to the magistrate's decision. Therefore, this court's

review is "extremely deferential" to the trial court and Father has waived all but "plain error."

Capano & Assocs., L.L.C. v. On Assignment, Inc., 12th Dist. Butler No. CA2015-08-153,

2016-Ohio-998, ¶ 13; Holden v. Holden, 12th Dist. Brown No. CA2015-07-016, 2016-Ohio-

5557, ¶ 25. Civ.R. 53(D)(3)(b)(iv) provides:

[e]xcept for a claim of plain error, a party shall not assign as error
on appeal the court's adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of
fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by
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Civ.R. 53(D)(3)(b).

{¶ 63} The Ohio Supreme Court has articulated the civil plain error standard as

follows:

reviewing courts must proceed with the utmost caution, limiting
the doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a
manifest miscarriage of justice, and where the error complained
of, if left uncorrected, would have a material adverse effect on
the character of, and public confidence in, judicial proceedings.

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997).

{¶ 64} For this court to find plain error, Father must establish (1) a deviation from a

legal rule, (2) that the error was obvious, and (3) that the error affected the basic fairness,

integrity, or public reputation of the judicial process, and therefore challenged the legitimacy

of the underlying judicial process. Aviation Publishing Corp. v. Morgan, 12th Dist. Warren

No. CA2017-12-169, 2018-Ohio-3224, ¶ 12.

{¶ 65} The domestic relations court's decision to find Father in contempt for his

refusal to honor Mother's parenting time after May 2016 does not constitute plain error.

There is no dispute that Father knowingly denied Mother's court-ordered parenting time.

Instead, Father merely argues that he was justified in ignoring the court order. However, all

of Father's concerns with Mother relate to his initial concerns in August 2015.

{¶ 66} The GAL and Dr. Handel agreed that Mother was not a safety concern and

that parenting time needed to resume as soon as possible because the children were

displaying signs of alienation. Father's continued denial of Mother's parenting time reflected

the GAL's description of Father as "uncompromising and unreasonable." In this case, it

appears that Father was inflexible in working with others and his actions merited a contempt

finding. This court overrules Father's first assignment of error.

{¶ 67} Father's Assignment of Error No. 2:

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{¶ 68} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING

THAT APPELLANT WAS NOT IN CONTEMPT.

{¶ 69} Father argues that the court erred in denying his contempt motions against

Mother. Father contends that the evidence demonstrated that Mother violated the agreed

entry by consuming an alcoholic beverage during her parenting time and that she violated a

subsequent entry on parenting time when she did not ensure that Tim Watson was present to

supervise an overnight visit. Again, Father did not object to the magistrate's decision and is

limited to demonstrating plain error.

{¶ 70} With respect to Mother's alleged consumption of alcohol, the domestic

relations court found that Father failed to prove this allegation by clear and convincing

evidence. As discussed previously, competent and credible evidence in the record supports

the domestic relations court's determination. The only witness who testified to observing

Mother consume alcohol that day was the elder daughter. Her version of events and the

level of detail she provided at trial differed in some respects from the details she provided the

GAL and Dr. Handel. Tim Watson, who interacted with Mother immediately following her

alleged consumption of beer, testified that there was no indication that Mother had consumed

an alcoholic beverage.

{¶ 71} Father essentially argues that the court's finding was against the manifest

weight of the evidence because the GAL testified that he had no reason to doubt the

daughter's veracity. However, the lower court could have found the daughter's testimony

credible yet still concluded that Father failed to establish the allegations by the level of clear

and convincing evidence. This court finds no plain error.

{¶ 72} Next, Father claims that the court should have found Mother in contempt for

failing to ensure that Tim Watson supervised the children during her parenting time. The

domestic relations court dismissed Father's argument, finding substantial compliance with its
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order. Substantial compliance with a court order can be a defense to a contempt charge.

Ossai-Charles v. Charles, 12th Dist. Warren Nos. CA2010-12-129 and CA2011-01-007,

2011-Ohio-3766, ¶ 34. Here, the evidence indicated that Tim Watson left Mother with the

children on one overnight while he worked a third shift and again the following morning when

he went to church. Watson testified that he gave the children the option to attend church

with him or stay at home with Mother and they chose to stay home with Mother. This court

finds no plain error. In this case, Watson's absence from supervision was a de minimis

violation of the agreement between the parties and the domestic relations court's

determination the circumstances constituted substantial compliance was not an abuse of

discretion nor is it plain error. Accordingly, this court overrules Father's second assignment

of error.

{¶ 73} Father's Assignment of Error No. 3:

{¶ 74} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT

ALLOWING FACTS AND EVIDENCE TO BE SUBMITTED TO THE COURT TO

DETERMINE WHETHER FATHER WAS JUSTIFIED IN HIS ACTIONS.

{¶ 75} Father argues that the court erred in granting Mother's motion in limine and

excluding evidence of her conduct prior to August 2015. Father contends that this evidence

was relevant to show that he was justified in denying Mother's parenting time beyond May

2016 and because it would help explain the children's wishes with respect to parenting time

with Mother.

{¶ 76} The domestic relations court has broad discretion in the admission or

exclusion of evidence. Theurer v. Foster-Theurer, 12th Dist. Warren Nos. CA2008-06-074

and CA2008-06-083, 2009-Ohio-1457, ¶ 24. Mother's conduct prior to August 2015 is of

limited probative value considering all the evidence submitted and the issues before the

court. Father would lack reasonable justification for his continued denial of Mother's
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parenting time regardless of the additional testimony he sought to admit.

{¶ 77} The GAL and Dr. Handel both made their recommendation with knowledge of

Mother's history prior to August 2015. By May 2016, neither professional found Mother to be

a safety concern and both felt Father's continued refusal of Mother's parenting time was

detrimental to the family. Father was aware of these opinions but continued to defy the court

order. Consequently, this court finds no plain error and overrules Father's third assignment

of error.

{¶ 78} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.

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