Bohannon v. Bohannon

[Cite as Bohannon v. Bohannon, 2020-Ohio-1255.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

TIMOTHY J. BOHANNON C.A. No. 29320

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
LYNN M. BOHANNON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. DR-2008-01-0086

DECISION AND JOURNAL ENTRY

Dated: April 1, 2020

CARR, Judge.

{¶1} Appellant, Timothy Bohannon, appeals the judgment of the Summit County Court

of Common Pleas, Domestic Relations Division. This Court affirms.

I.

{¶2} Timothy Bohannon (“Father”) and Lynn Bohannon (“Mother”) were divorced in

2010. Thereafter, Father and Mother became embroiled in a dispute regarding parental rights and

responsibilities.

{¶3} Many of the relevant procedural facts in this matter were set forth in a prior decision

of this Court rendered on July 25, 2018. Bohannon v. Bohannon, 9th Dist. Summit No. 28906,

2018-Ohio-2919 (“Bohannon I”). The facts, as set forth in Bohannon I, are as follows:

Father and Mother were divorced in 2010, at which time they had three
unemancipated children. Mother was named the residential parent, and Father
received a combination of both supervised and unsupervised parenting time with
the children. In addition, Father was ordered to pay child support. After various
post-decree issues arose, Father and Mother entered into an agreed judgment entry
on April 24, 2014, wherein Father was to receive parenting time with the two
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remaining unemancipated children for one-half of the summers and school breaks,
Wednesday overnight visitation with the youngest child, K., and telephone contact
with both children twice a week.

Over the course of time, [the Child Support Enforcement Agency (“CSEA”)]
recommended increases in the amount of Father’s child support obligation after
conducting administrative review hearings. Father filed objections with the
domestic relations court after every administrative review recommendation. The
most recent objection * * * was filed on November 22, 2016. By that time, only K.
remained unemancipated and the subject of a child support order. That objection
requested a downward deviation of child support based on an adjustment for
Father’s cost of living.

In addition, Father filed three post-decree motions for Mother to show cause why
she should not be held in contempt for violating parenting time orders. In the first,
filed June 16, 2016, Father alleged that Mother prevented him from exercising
parenting time with K. for the one-half of the summer to which he was entitled. In
the second, filed October 6, 2016, he alleged that Mother interfered with his ability
to have telephone contact with K., as well as Wednesday and every other weekend
visits with the child. In the third motion to show cause, filed March 2, 2017, Father
alleged that Mother continued to deny him his ordered parenting time.

Although the trial court issued multiple notices for hearings on the motions and
objections to occur on October 12, 2016, December 15, 2016, February 10, 2017,
and May 9, 2017, the matters were not actually heard until the May 2017 date. In
all instances, the notices of hearings noted the starting time for the hearing, but did
not identify the length of time allotted for the hearing. The May 9, 2017 hearing
was scheduled to begin at 1 p.m. Both parties filed witness and exhibit lists in
advance of the hearing. Father notified the court and Mother that he intended to
present 18 exhibits and four witnesses, while Mother notified the court and Father
that she intended to present nine exhibits and six witnesses. In addition, the
domestic relations court had appointed a guardian ad litem for K. Based on the
guardian’s time log filed with the court, she spent over 14 hours investigating issues
relevant to the pending motions, one hour in court during the May 9, 2017 hearing,
and approximately six hours preparing a report.

At the beginning of the hearing on Father’s objections to the CSEA administrative
recommendation and three contempt motions, the magistrate informed the parties
that they would have a total of one hour in which to present evidence. The
magistrate gave each party ten minutes to address the issue of the CSEA
recommendation and Father’s request for a downward deviation of his child support
obligation, and twenty minutes each to address all three contempt motions. When
Father indicated that he would need more time, the magistrate reiterated that she
had scheduled the hearing for one hour and that neither party had moved the court
for additional time in advance.
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The magistrate set a timer on her computer and held the parties to their allotted
times. Only Father and Mother testified. None of the listed witnesses on either
party’s witness list testified. Neither did the guardian ad litem, whose time log
indicated she was present for the hearing, render a report.

The magistrate subsequently issued a one-and-a-half page decision in which she
denied Father’s three contempt motions “for lack of evidence” and overruled his
objections to the CSEA administrative review recommendation. Father filed timely
objections, which he supplemented after the filing of the transcript. In addition to
challenging the magistrate’s factual findings, Father argued that the magistrate
unreasonably limited his ability to present evidence in support of his motions and
objections by imposing arbitrary time restrictions without prior notice at the
hearing. Mother responded in opposition. The domestic relations court issued a
judgment in which it denied Father’s objections to the magistrate's decision, denied
his three contempt motions, and overruled his objections to the CSEA
recommendation and request for a downward deviation of his child support
obligation. * * *.

Bohannon I at ¶ 2-8.

{¶4} Father appealed from the trial court’s decision and raised three assignments of error.

Most notably, Father argued that the trial court abused its discretion when it limited the time he

had to present evidence on his three contempt motions as well as his objections to the CSEA

recommendation. Id. at ¶ 9. This Court ultimately reversed the trial court’s judgment on the basis

that “the domestic relations court abused its discretion when it unreasonably limited the time for

hearing on the four pending motions/objections, summarily overruled Father’s objection to the

time limitation, and then denied Father’s contempt motions ‘for lack of evidence.’” Id. at ¶ 20.

This Court declined to address Father’s remaining assignments of error as they were rendered

moot. Id. at ¶ 21.

{¶5} On remand, the trial court held a pretrial conference and then set the matter for trial.

A two-day trial commenced on January 9, 2019. On January 23, 2019, the trial court issued a

journal entry overruling Father’s three contempt motions and denying his objections to the CSEA
 4

recommendation. The trial court also granted a motion to reallocate parental rights and

responsibilities filed by Mother and denied a motion to increase parenting time filed by Father.

{¶6} On appeal, Bohannon raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING
TO ADHERE TO THE MANDATE OF THIS HONORABLE COURT ISSUED
IN CASE NUMBER CA-28906 ON JULY 25, 2018.

{¶7} In his first assignment of error, Bohannon contends that the trial court disregarded

the mandate of this Court’s decision issued on July 25, 2018.

{¶8} “It is not within the discretion of an inferior court ‘to disregard the mandate of a

superior court in a prior appeal in the same case.’” Marquez v. Jackson, 9th Dist. Lorain No.

16CA011049, 2018-Ohio-346, ¶ 14, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). “The

purpose of this doctrine, which is more of a rule of practice than a ‘binding substantive rule of

law,’ is to ensure consistency within a case, ‘to avoid endless litigation by settling the issues, and

to preserve the structure of superior and inferior courts as designed by the Ohio Constitution.’”

Marquez at ¶ 14, quoting Nolan at 3. “Thus, where at a rehearing following remand a trial court

is confronted with substantially the same facts and issues as were involved in the prior appeal, the

court is bound to adhere to the appellate court’s determination of the applicable law.” Marquez at

¶ 14, quoting Nolan at 3.

{¶9} In support of his contention that the trial court disregarded a mandate from this

Court, Father points to the following passage from this Court’s decision in Bohannon I:

In Brewer v. Brewer, 5th Dist. Licking No. 08 CA 0400, 2009-Ohio-249, our sister
district concluded that the appellant had been “afforded ample opportunity to
present his arguments to the trial court as evidenced by the numerous decisions
issued by the Magistrate in this case.” Id. at ¶ 31. In the instant case, however, not
 5

only were Father’s issues not addressed on prior occasions, but his multiple
contempt motions had been pending for a significant amount of time. In fact, his
first contempt motion had been pending for approximately 11 months before it
finally came before the trial court. Given the fact that there is no way to go back in
time and restore missed parenting time, the best a parent can hope for is that he or
she will be awarded future substitute time and incentives to deter the other parent
from further interference. When the child at issue is a teenager, as here, timely and
full consideration of the issues is even more critical.

Bohannon I, 2018-Ohio-2919, at ¶ 15.

{¶10} Father argues that the trial court disregarded the mandate from this Court when it

“cut [F]ather’s companionship time virtually to zero and made it contingent upon initiation by a

now sixteen year old who had ignored the agreed-upon companionship schedule for the past four

years without consequence.”

{¶11} Father’s argument is without merit. In sustaining Father’s first assignment of error

in Bohannon I, this Court concluded that the trial court abused its discretion when it limited the

time for presenting evidence on Father’s motions and objections and then overruled those same

motions and objections based on a lack of evidence. Bohannon I at ¶ 20. While this Court

expressed concern with various delays that occurred in the trial court proceedings, it took no

position on the merits of the substantive issues raised by Father before the trial court. On remand,

the trial court promptly conducted a two-day trial where the parties were provided ample

opportunity to present evidence. Following trial, the trial court issued a journal entry ruling on all

outstanding issues before the court. Under these circumstances, we cannot say that the trial court

disregarded the mandate of Bohannon I.

{¶12} Father’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING
TO GRANT FATHER’S THREE CONTEMPT MOTIONS[.]
 6

{¶13} In his second assignment of error, Father contends that the trial court erred and

abused its discretion when it denied the three motions for contempt that he filed in this matter.

This Court disagrees.

{¶14} “This Court reviews contempt proceedings for an abuse of discretion.” Zemla v.

Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829, ¶ 8. “The term ‘abuse of discretion’

connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying an abuse of discretion standard, a reviewing court is precluded from simply substituting

its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

{¶15} “To establish contempt, the moving party must ‘establish a valid court order,

knowledge of the order by the defendant, and a violation of the order.’” Henry v. Henry, 9th Dist.

Summit No. 27696, 2015-Ohio-4350, ¶ 12, quoting State v. Komadina, 9th Dist. Lorain No.

03CA008325, 2004-Ohio-4962, ¶ 11. “In civil contempt proceedings, a finding of contempt must

be premised on clear and convincing evidence.” Zemla at ¶ 11, citing Romans v. Romans, 9th Dist.

Summit No. 23181, 2006-Ohio-6554, ¶ 9. The party seeking to hold the other in contempt bears

the burden of proving the other’s failure to comply with an order of the court. Zemla at ¶ 11, citing

Rossen v. Rossen, 2 Ohio App.2d 381, 383-384 (9th Dist.1964). “Once the movant proves his [or

her] prima facie case, the contemnor must present evidence of [his or] her inability to comply with

the order or any other available defense.” Zemla at ¶ 11, citing Rossen at 384.

{¶16} Father and Mother initially entered into an agreement allocating parental rights and

responsibilities on January 21, 2010. On April 24, 2014, the trial court issued an agreed entry

modifying Mother and Father’s agreement with respect to parenting time. Subsequently, Father
 7

filed three separate contempt motions arguing that Mother had failed to comply with the terms of

the parenting time agreement. All three motions were denied by the trial court in its January 23,

2019 journal entry.

{¶17} On June 16, 2016, Father filed a motion to show cause as to why Mother should

not be held in contempt for failing to comply with the trial court’s April 24, 2014 order with respect

to parenting time during K.’s summer vacation. The April 24, 2014 agreed entry stated that the

parties were each entitled to parenting time equal to half of summer vacation. The trial court

denied this motion for contempt on the basis that Mother offered to split parenting time on a “week-

on/week-off schedule[]” and Father would not agree.

{¶18} On October 6, 2016, Father filed a second motion for contempt arguing that Mother

had obstructed and refused to facilitate telephone contact between Father and K. and that Mother

had further interfered with Father’s parenting time on Wednesdays and alternating weekends. The

April 24, 2014 agreed entry stated that Father would have Wednesday visitation and that he would

pick up K. after school on Wednesdays and bring her to school the following morning. The agreed

entry further stated that Father was entitled to telephone contact with K. twice per week and Mother

was to refrain from interfering with that right. The trial court denied this motion for contempt on

the basis that “Father had agreed to not visit on Wednesdays because of his employment in

Columbus, Ohio.” The trial court further found that Mother had used her best efforts to encourage

K. to spend time with Father and that K. requested limited contact on her own.

{¶19} In his final contempt motion, filed on March 2, 2017, Father again argued that

Mother had interfered with phone time and the visitation schedule. The trial court denied this

motion on the same grounds that it denied the October 6, 2016 motion.
 8

{¶20} On appeal, Father contends Mother should have been held in contempt because she

failed to comply with the parties’ parenting time agreement. Father cites a number of cases for the

proposition that a custodial parent must do more than merely encourage minor children to visit the

non-custodial parent and instead must adhere to a visitation schedule. Father concludes that the

trial court should have found Mother in contempt and ordered that the missed parenting time be

made up.

{¶21} A review of the evidence presented at trial reveals that Father’s argument is without

merit. Mother testified that she made a consistent effort to support Father’s parenting time. The

Guardian ad Litem (“GAL”) concurred with this sentiment and testified that Mother sought to

comply with the companionship order. The GAL explained that Mother ensured that “[K.] had to

be available at the time set for the start of the companionship time unless [M]other was informed

that maybe [K.] and [F]ather had worked out some other arrangement.” When K. did not want to

see Father at the scheduled times, “[M]other [would] tell[] [K.] she had to go regardless[.]” In

response, K. would agree to visit with Father “[s]ometimes [but] [n]ot all the time.” Father

disputed this narrative during his testimony and insisted that Mother has sought to interfere with

his relationship with K. This Court is mindful that the trier of fact is in the best position to resolve

credibility issues during a contempt proceeding and a difference of opinion with respect to the trial

court’s determination in that regard does not constitute legitimate grounds for reversal. Geary v.

Geary, 5th Dist. Delaware No. 14CAF050033, 2015-Ohio-259, ¶ 34

{¶22} Additional evidence presented at the hearing largely showed that Father’s missed

parenting time resulted from rising tensions in the relationship between Father and K. According

to the GAL, K. suggested that her relationship with Father began to decline in 2016 when, during

a spring break trip to Washington, D.C., Father initiated a conversation with K. about her uncle’s
 9

suicide that K. found disturbing. The GAL noted that Father disputed the assertion that the

conversation was handled inappropriately. Around that time, Father’s work schedule resulted in

the cancelation of certain scheduled visitations and K. expressed a desire to see Father less

frequently.1 At the recommendation of the GAL, Father and K. began joint counseling but the

sessions did not result in any meaningful progress. K. became upset when Father requested notes

from K.’s individual counselor. Father also filed a complaint against K.’s counselor to the State

board. The GAL further testified that K. felt she was being “cyber bullied” by Father during text

conversations. Father called the police after K. took measures to avoid scheduled visitations, such

as taking the bus home from school instead of meeting Father. Father filed “unruly” charges

against K. when she refused to take part in parenting time. The GAL explained that K. no longer

wanted to visit with Father due to the deterioration in their relationship.

{¶23} With respect to the summer visitation schedule, the evidence presented at the

hearing showed that Mother offered to split time evenly but Father was not agreeable. Mother

testified that the parties had used a “one week on and one week off” schedule in the summer of

2015. Mother did not agree with Father’s parenting time proposal for the summer of 2016

“[b]ecause it did not follow the cadence of the time that we had been following the summer

before.” Mother explained, “Our 2011 order and starting I believe it was [20]14 and [20]15, we

had one week on and one week off. It was a seven-day period, and [Father’s proposal] did not line

up with that at all.” When Mother offered to continue to split summer parenting time on a week

on/week off basis, Father rejected the offer and filed an emergency motion to enforce parenting

time, which was denied. In regard to weekly visitation and telephone time during the school year,

1
While Father maintains a residence in Stow, Ohio, his primary residence is in Muncie, Indiana.
Father also maintained a residence in Columbus, Ohio, at times relevant to these proceedings but
he no longer maintains that residence.
 10

Mother sought to comply with the agreement by ensuring that K. was available at the scheduled

times and by not allowing K. to engage in alternate social activities when she did not want to see

Father. Mother testified that the expectation was that “[K.] had to be available and that she was to

go.” Under these circumstances, where Father failed to demonstrate that Mother failed to comply

with the parenting time order, Father cannot prevail on his assignment of error.

{¶24} The second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS
MODIFICATION OF THE PARENTING TIME FOR FATHER[.]

{¶25} In his final assignment of error, Father contends that the trial court abused its

discretion in modifying Father’s parenting time. This Court disagrees.

{¶26} Trial courts are generally afforded broad discretion in determining whether a

modification of parenting rights and responsibilities is necessary. See David v. Flickinger, 77 Ohio

St.3d 415 (1997), paragraphs one and two of the syllabus.

{¶27} On July 15, 2016, Mother filed a motion to reallocate parental rights and

responsibilities wherein she requested that parenting time for Father be reduced. Thereafter, on

October 5, 2016, Father filed his own motion to modify parental rights and responsibilities wherein

he requested an increase in parenting time on the basis that Mother had consistently interfered with

the existing parenting time agreement.

{¶28} In its January 23, 2019 journal entry, the trial court granted Mother’s motion and

denied Father’s motion. In support of its decision, the trial court identified a number of troubling

actions that Father had taken toward K., including “calling the police, threatening to take her to a

mental hospital, undermining or sabotaging [K.’s] counseling and refusing to accept [K.’s] request

for limited contact, especially texts.” The trial court indicated that Father’s behavior had caused a
 11

change in circumstances in the relationship between Father and K. and that, under the relevant

statutory factors, a change in parental rights was in K.’s best interest. Accordingly, the trial court

ordered that “[e]ffective January 16, 2019, Father will have time with [K.] as agreed between [K.]

and Father. Father may contact [K.] by telephone, text, or social media one time per week.”

{¶29} On appeal, Father challenges the trial court’s modification of parenting time on the

basis that it effectively awarded “no companionship” to him because K. has “the right to veto any

companionship.” Father asserts that the trial court took this course of action without making a best

interest determination or any findings regarding his fitness as a parent. Father also cites to Loc.R.

31 of the Summit County Court of Common Pleas, Domestic Relations Division, in support of his

contention that “[t]he nonvisitation order issued by the trial court is a far cry from the expansive

‘default’ companionship set by court rule.”

{¶30} Father’s contentions are not supported by the record. Contrary to Father’s primary

assertion, the trial court did not eliminate parenting time. Given that Father’s relationship with K.

had become incredibly strained due to growing communication issues, the trial court ordered that

Father may contact K. once a week by phone, text, or social media in order to set up an agreed

visitation time. The trial court’s action was not tantamount to terminating his visitation rights.

While Father contends that the trial court failed to make a best interest determination or asses his

fitness as a parent, the trial court found that there had been a change in circumstances because

Father’s actions had caused his relationship with K. to deteriorate. The trial court further noted

that it had considered the statutory best interest factors in determining whether a modification of

parenting time was in K.’s best interest. Finally, Father’s reliance on Loc.R. 31 of the Summit

County Court of Common Pleas, Domestic Relations Division, is misplaced as that rule sets forth

a default visitation schedule for parenting time in the absence of an agreement by the parties or a
 12

court order with other provisions. Here, the trial court’s modified parenting time order in its

January 23, 2019 journal entry departed from the default order in light of the trial court’s

consideration of the evolving circumstances in this case. Accordingly, we cannot say that the trial

court’s decision to modify parenting time in this case was unreasonable, arbitrary or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

{¶31} Father’s final assignment of error is overruled.

III.

{¶32} Father’s assignments of error are overruled. The judgment of the Summit County

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

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
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Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT

CALLAHAN, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

JOYCE E. BARRETT and JAMES P. REDDY, Attorneys at Law, for Appellant.

ROBERT ROE FOX, Attorney at Law, for Appellee.