In re G.D.B.

[Cite as In re G.D.B., 2020-Ohio-5539.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

:
:
IN RE: G.D.B. : Appellate Case No. 28844
:
: Trial Court Case No. 2015-3161
:
: (Appeal from Common Pleas
: Court – Juvenile Division)
:
:

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OPINION

Rendered on the 4th day of December, 2020.

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JAMES KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio 45458
Attorney for Plaintiff-Appellant Mother

ELLEN WEPRIN, Atty. Reg. No. 0042354, 90 East Franklin Street, Bellbrook, Ohio 45305
Attorney for Defendant-Appellee Father

.............

DONOVAN, J.
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{¶ 1} Mother appeals from a judgment of the juvenile court that declined to hold

Father in contempt regarding her parenting time with the parties’ minor child, G.D.B., and

Fahter’s payment for counseling services and granted Father’s motion for child support.

We hereby affirm the judgment of the juvenile court. to hold Father in contempt and

granted Father’s motion for child support

{¶ 2} Previously, in ruling on the same motions for contempt and child support,

the juvenile court denied Mother’s motions without a hearing. Specifically, Mother’s

motions had asserted that: 1) Father failed to “pay his share of the minor child’s

counseling fees,” 2) Father denied Mother parenting time on April 12 and the weekend of

April 14-16, 2017 and “had the child for two weeks during the child’s spring break,” and

3) Father denied Mother parenting time on May 24, 2017, and over the Memorial Day

weekend of 2017. Mother appealed from the juvenile court’s judgment.

{¶ 3} On appeal, we held that the juvenile’s court had abused its discretion in ruling

on the parties’ motions without conducting an evidentiary hearing on any of them. In re

G.B., 2d Dist. Montgomery No. 27992, 2019-Ohio-236, ¶ 1.1 In that case, we described

the background of the case as follows:

Mother and Father's son, G.B., was born in 2008. The parents'

litigation has a complicated history, which we reviewed in In re G.B., 2d Dist.

Montgomery No. 27601, 2017-Ohio-8418. This court noted that a circuit

court in Oakland County, Michigan originally exercised jurisdiction over this

matter, when Mother lived in Michigan. Pursuant to a 2013 order of the

1 The same child is at issue in multiple cases, but the child was referred to in the previous
cases as “G.B.” Because the current case is captioned “G.D.B.,” we refer to the child by
those initials in this case.
 -3-

Michigan court, Father had custody of G.B. and Mother had parenting time.

In May 2015, Mother filed a petition to register a foreign order in the

Montgomery County, Ohio juvenile court pursuant to the Uniform Child

Custody Jurisdiction and Enforcement Act. By mid-2015, Mother had

moved to Ohio, and the Montgomery County juvenile court had accepted

jurisdiction over matters related to G.B.'s parenting. In the 2017 Opinion,

this court affirmed the juvenile court's April 26, 2017 judgment, which

overruled Mother's contempt motion, implemented shared parenting,

designated Father as the residential parent, and granted Mother visitation

with G.B. pursuant to the juvenile court's standard order of visitation.

Id. at ¶ 2.

{¶ 4} After we reversed and remanded the juvenile court’s prior judgment for its

failure to conduct a hearing, the juvenile court magistrate held a hearing on August 13,

2019 on Father’s motion for child support and Mother’s three motions to show cause why

Father should not be held in contempt.

{¶ 5} At the hearing, Father testified that he was G.D.B.’s residential parent and

Mother had visitation pursuant to the standard order, which was every Wednesday from

6:00 to 9:00 p.m. and every other weekend. Father stated that he had been employed

at Eli Lilly since September 17, 2018, as a sales representative, earned $92,500 a year,

with a quarterly bonus, and that his last bonus check was $3,500 in June 2019; his total

income was “anywhere from 100 and $105,000 for the year.”

{¶ 6} Mother testified that she worked for a research company, making $115,000

per year. She stated that, for a couple of years, she had exercised parenting time with
 -4-

G.D.B. on “Wednesday and Thursday nights and alternating weekends.” She

recognized that “[n]obody ordered it. It’s just been what we’ve been doing.” Mother also

testified that she had had G.D.B. for several weeks when Father went away for business.

Mother stated that she had another child who had recently graduated from college.

{¶ 7} Mother testified that she had started her current employment in November

2018. She stated that, at the time of the August 2019 hearing, she had recently been

diagnosed with “blood clots and edema” and was on a travel restriction. Mother testified

that she did not qualify for long term disability at work because she has not been at her

company for one year. Mother testified that she had not been terminated and did not

know when she would return to work. When the magistrate asked if she was still

employed by the company with an annual salary’s $115,000 a year, Mother responded,

“Yes.”

{¶ 8} Regarding her motions to show cause, Mother testified that her March 31,

2017 motion was addressed to the payment of counseling services for G.D.B. She

stated that she scheduled the counseling appointments, took her son to them, and paid

for the appointments through her insurance. Mother testified that she provided copies of

the bills to Father but that he had not reimbursed her.

{¶ 9} Regarding parenting time, Mother testified that January 6, 2017, was her first

weekend of parenting time of the year. Mother testified that she requested parenting

time the following weekend, January 13-14, 2017, as evidenced by a text message

exchange between her and Father (Exhibit 2) but Father replied that the weekend she

requested “was not [her] weekend for visitation.”

{¶ 10} Mother stated that her April 26, 2017 motion to show cause was addressed
 -5-

to the dates of April 12, 14, 15, and 16, 2017, when Father denied her parenting time; her

motion of June 22, 2017, was addressed to the dates of May 24, 26, 27, 28, and 29, 2017,

when she was also denied parenting time.2 Mother presented as Exhibit 3 a photo of a

Chic-fil-A receipt in her hand, which reflected a date of April 14, 2017 at 3:04:22 p.m.

and the digital clock in her car showing a time of 3:22; according to Mother, Exhibit 3

established that she was waiting at Chick-fil-A on that date and time for Father to bring

their son, and she “waited for 20 minutes.” Mother acknowledged that April 16, 2017

was Easter, and that it was Father’s holiday, but she stated that she was denied parenting

time on the previous Wednesday, Friday and Saturday. She testified that Chick-fil-A had

been the parties’ previous exchange location, but at the time of the hearing they made

the exchanges by picking the child up at the end of the school day.

{¶ 11} Mother testified that, pursuant to the standard order, she was supposed to

have G.D.B. on Memorial Day weekend 2017. She presented copies of text messages

that she testified she sent to Father on May 26, 2017, asking him to bring the child to her

at 3:00 p.m. the following day, and a message that she sent at 6:24 p.m. on May 27

indicating that she was still waiting for the child (Exhibit 4). Mother testified that Father

did not offer her any make-up parenting time for the missed holiday weekend.

{¶ 12} Mother identified email correspondence between her and Roslyn Prigg of

Healing Waters, who had provided counseling services to G.D.B. (Exhibit 5). The email

2
The record reflects that Mother filed an “Amended Motion to Show Cause” on January
10, 2018, subsequent to the filing of the prior appeal. The amended motion claimed that
Mother was denied parenting time on January 3, 2018, and January 5-7, 2018, that Father
failed to take the child to his extra-curricular activities as “per previous orders of the
Court,” and that Father continued “to be physical with the minor child” and failed to co-
parent as ordered by the court. However, the magistrate indicated that the August 13,
2019 hearing was only to address the issues on remand from this court.
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was dated January 18, 2017. Mother’s message stated:

Again, I apologize [G.D.B.] was not brought in for his most recent counseling

appointments.

Please advise me of your next available appointment for [G.D.B.]. He’s

with me tonight at 6pm if you can squeeze him in. Or Saturday & Sunday.

I can ensure he comes.

Additionally, has [Father] paid you or provided his insurance card since our

last meeting? If not, as you requested, I will pay the outstanding balance.

Please confirm if its $200 or has increased.

{¶ 13} Mother then requested that Prigg print the bill and attendance sheet.

Mother testified that she sent Father a text the day before and day of each appointment

with Prigg. Mother testified that she “had to pay cash for full sessions when [Father] no

showed” for G.D.B.’s appointments. Mother identified an email that Father sent to Prigg

December 6, 2016 stating that he “withdrew his participation from counseling” (Exhibit

16). Mother testified that Prigg subsequently “terminated us” as clients.

{¶ 14} Mother testified that she took G.D.B. to his basketball practices and games,

but Father did not, and that G.D.B. “was kicked off the basketball team” because Father

did not take him.

{¶ 15} Mother testified that she did not receive parenting time the first Wednesday

in January and the first weekend in January 2018. She identified Exhibit 13-A as an

email exchange between Father and her. In an email dated January 5, 2018, Mother

wrote: “The Holiday schedule ended 01Jan which returned us to the regular schedule.

You No-Showed my Wednesday and I’m waiting on you now for my Friday pick up. The
 -7-

time is 6:15.” Father responded as follows on January 6, 2018: “We know that the

holiday schedule is over on January 1st. You didn’t show up for your parenting time on

Wednesday, so you missed your parenting time. * * *.” Mother identified Exhibit 15 as a

January 5, 2018 Chick-fil-A receipt at 6:32.54, to document that she was there; she

testified that Father did not bring the child to the restaurant that day.

{¶ 16} Mother identified Exhibit 17 as a Dayton Early College Academy 2017- 2018

Calendar, which showed the school’s holiday schedule. Mother testified that G.D.B. was

not on spring break during the dates of April 14-16, 2017, and that spring break occurred

that year from March 19-April 4.

{¶ 17} Mother identified Exhibit 18-A as a printout of a counselor’s bill, directed to

Mother’s address, reflecting charges paid in the amount of $600. Mother stated that the

counselor did not take her insurance so she paid the balance in cash. Mother stated that

she told Father of the bill and did not receive money from him. She had requested $300.

{¶ 18} Mother identified Exhibit 20 as a patient account ledger from Prigg for

G.D.B.’s treatment from July 12, 2016 through May 16, 2017. It listed Mother’s name

and billing address. Finally, Mother identified Exhibit 21 as her analysis of Exhibit 20;

Exhibit 21 had columns entitled “Date,” “Description,” “Amount,” “Insurance/Adjustments,”

and “Missed Apts. by Father.” Mother testified that the total amount due to Prigg was

$2,297.25, of which insurance covered $1,178.95, leaving a balance of $1,118.30, which

she had paid. She testified that, of the amount she had to pay, $747.50 was attributable

to no-shows by Father, for which no insurance could be applied. Mother also testified

that $370.80 was supposed to be split between her and Father. According to Mother,

adding $747.50 for Father’s no shows and half of the “new total” of $370.80 ($185.40)
 -8-

totaled $932.90 that Father owed for counseling.

{¶ 19} On cross-examination, Mother testified that she kept G.D.B. overnight on

Wednesdays pursuant to an agreement with Father. She also stated that Prigg had

handed bills to Father “on the few days that he did show up before he quit.” When asked

about her billing address appearing on Exhibit 18, Mother responded, “[t]hat’s not the

billing information. This is the address of me signing him in.” Mother acknowledged

that her attorney’s staff created Exhibit 21. Mother testified that Father withdrew his

participation in counseling on December 6, 2016. When asked why Exhibit 21 reflected

missed appointments after that date, Mother responded, “[t]hey were still assigned to him”

and during his parenting time.

{¶ 20} On re-cross-examination, Mother stated that she did not know that Father

had stopped participating in counseling until the following March. Mother also stated that

she and Father signed a contract with Healing Waters, but that she did not bring a copy

of it to court.

{¶ 21} Father testified that Mother was not denied parenting time. He stated that

his understanding was that Mother had the child every Wednesday from 6:00 to 9:00 and

every other weekend. Father stated that he and Mother argued every year about when

her parenting time began each January. He stated that he had G.D.B. for spring break

in 2017. Father testified that Mother had G.D.B. on the 7th, 8th, and 9th of April 2017,

and that she took him to school on the 10th without returning him. He stated that he

picked the child up at school and had him the following weekend. Father testified that

he had the child April 12, 2017, until 6:00 p.m. and then gave the child to Mother. With

respect to the May 2017 dispute, Father stated that on May 24, 2017, Mother had G.D.B.
 -9-

and kept him overnight because there was a tornado warning in Fairborn where she lived;

Father picked the child up the next day at school, and the following weekend was his

weekend pursuant to the schedule. Father stated that Memorial Day 2017 was Mother’s

holiday from 9:00 a.m. to 9:00 p.m., and he dropped G.D.B. off for Mother’s visitation.

{¶ 22} Father stated that he had not received any invoices for counseling services;

Mother scheduled all of the appointments and text-messaged him the dates and times.

According to Father, “[i]t was usually a last minute communication” from Mother regarding

the day and time of the appointment. Father stated that, if he had G.D.B., he would take

him to the appointment, but sometimes he did not because of the last-minute nature of

the communication. “You know, you can’t schedule an appointment at 3:00 and text

somebody at 2:30, well, he’s got an appointment at 3:00.” Father testified that Prigg

never communicated with him directly about the day and time of an appointment and that

he did not discuss paying for the services with her. Father stated that he paid Prigg $80

one time when he took G.D.B. to an appointment. When asked why he refused to

participate in counseling, Father stated that he felt there was too much confusion in regard

to scheduling, it was often last minute, and “it was a frustrating situation.” Father stated

that he decided to “mitigate all the confusion” for Prigg and her practice by asking her to

schedule only times when Mother would be able to take G.D.B. Father testified that

Prigg had his address, but he never received a bill from her, and that he had had

insurance since September 17, 2018.

{¶ 23} On cross-examination, Father testified that G.D.B. had spring break in

March, which encompassed two of Mother’s weekends. He also stated that he did not

recall signing a contract with Prigg.
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{¶ 24} With respect to the child’s counseling bills, the magistrate observed that

Mother claimed to have provided Father with copies of invoices for the counseling, Father

denied that he had received any invoices, and Mother “produced no documentary

evidence to support her allegations.” The magistrate found that both Mother and Father

were credible, but “[t]herefore, Mother failed to meet her burden of proof.” The

magistrate found that Mother had presented no evidence that there was a “contractual

obligation” to pay for missed counseling sessions. The magistrate ordered Father to pay

Mother $185.40 for his share of the counseling expenses provided by Healing Waters

and $70.00 for his share of the counseling costs incurred through January 10, 2018, but

it did not hold him in contempt for failure to pay for counseling.

{¶ 25} With respect to parenting time, the magistrate made three findings. First,

the magistrate found that Mother had parenting time pursuant to the court’s standard

order of parenting time. In 2017, April 14 was a Friday, and pursuant to the standard

order, her parenting time did not start until 6:00 p.m. that day. Therefore, the magistrate

found that Father did not commit a contemptuous act on that day. Second, the

magistrate found that the standard order required the non-residential parent to provide

transportation of the child to and from that parent’s home for parenting time, but Mother

did not present any evidence that she arrived at Father’s home on Fridays at 6:00 p.m.

or every other Wednesday at 6:00 p.m. Rather, she merely alleged that she did not have

parenting time on certain dates. Mother presented no evidence that she went to Father’s

home to pick up G.D.B. to exercise her parenting time on those dates and that the child

either was not there or Father refused her parenting time. The magistrate noted that the

parties may have agreed to alter the terms and conditions of the court’s standard order
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concerning drop off and pick up, but it found that Father’s failure to comply with the parties’

separate agreement was not a violation of the court’s order. Third, the magistrate found

that Mother failed to present any evidence that Father had not taken G.D.B. to his

extracurricular activities. For these reasons, Mother’s motion to find Father in contempt

was denied.

{¶ 26} Mother filed objections to the magistrate’s decision on August 27, 2019.

She objected to the following: the calculation of the child support amount, because it did

not include Father’s bonuses; the amount Father was ordered to pay for counseling; the

magistrate’s failure to take into account “expenses as documented by the Mother in her

Affidavit of Income and Expenses,” including child care required for Mother to work and

expenses associated with Mother’s daughter who was a college student; the magistrate’s

failure to “adjust Mother’s income to 60% disability amount” based on her medical

conditions; and the magistrate’s findings with respect to parenting time. Mother

supplemented her objections on October 22, 2019.

{¶ 27} In addressing Mother’s objections, the juvenile court noted that Father’s

bonuses were not included in the child support calculation and stated that his gross

annual income should include his anticipated bonuses; child support was recalculated

accordingly. The court further found that, at the time of the hearing, Mother was still

employed and expected to earn $115,000 for 2019; Mother was not terminated by her

employer and had not had her salary reduced. As such, the court rejected Mother’s

claim that her income should have been adjusted “to a 60% disability amount.”

{¶ 28} Regarding the fees for counseling services, the court found that it seemed

that Mother has been solely responsible for scheduling appointments with Prigg and then
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communicating the appointment times to Father, but that some of the appointment times

were during Father’s parenting time and were scheduled without prior consultation with

him. The court noted that, on December 6, 2016, Father had requested that

appointments be scheduled only during Mother’s parenting time, but notwithstanding this

request, appointments “continued to be scheduled in the same manner for months

between Mother and the counselor, leading to more missed appointments, and more fees

associated with those missed appointments.” Although Mother argued that having to

pay for the missed counseling sessions was “manifestly unfair” to her, the court found

that these unnecessary fees could have been avoided by better communication about

scheduling and providing more advanced notice of the sessions to Father, both of which

were Mother’s responsibility.

{¶ 29} Finally, regarding Mother’s parenting time, the court determined as follows:

Pursuant to the Standard Order of Parenting Time, Mother was to

have visitation with the child on Memorial Day in 2017. Father testified that

Mother did have the child that day, while Mother states that she did not.

Mother also believes that she should have had the child the weekend

preceding Memorial Day from May 26th through May 28th, which Father

asserts was his weekend for parenting time. When alternating weekends

from April 7th, if the child’s spring break schedule was as Mother testified

to, and Mother received the child from April 7th through the 9th, as Father

testified to, the weekends of April 14, 2017 and May 26, 2017 would have

been Father’s for visitation.

In relation to the mid-week parenting time on April 12, 2017, May 24,
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2017 and January 3, 2018, the Court finds that Mother failed to present clear

and convincing evidence that she did not receive parenting time on those

dates. Mother testified that she did not receive her ordered visitation on

those dates. Father testified that Mother did have the child on those dates,

and also kept the child overnight on Wednesday, May 24, 2017. Mother

did not present any independent evidence to prove that she did not receive

the child on those dates.

According to the Standard Order, in an odd numbered year, Father

shall have the child from 9:00 a.m. the day after school recess * * * until

9:00 p.m. December 24 and Mother shall have the child from 9:00 p.m.

December 24 through 6:00 p.m. January 1. In 2017, it appears from

Plaintiff’s Exhibit 17 that the child was out of school from December 22,

2017 through January 8, 2018. Thus, Mother should have had the child

from December 24, 2017 through January 1, 2018. This would appear to

make January 5, 2018 through January 7, 2018 Father’s weekend for

visitation.

The Court finds that Mother failed to meet her burden of proof in

showing father to be in contempt of the prior Court ordered parenting time

by clear and convincing evidence. Mother failed to prove by clear and

convincing evidence that she was entitled to Court Ordered parenting time

during the dates alleged in her motions, and that Father refused said

parenting time. Additionally, it appears that the parties have significantly

deviated from the parenting time schedule outlined in the Court’s Standard
 -14-

Order of Parenting Time, particularly in relation to the pick up and drop off

times, as well as locations.

Further, although Mother testified that she never received any “make

up” visitation for purported missed visits, Mother’s own testimony suggests

that she has had the child well in excess of the time granted to her under

the Court’s standard order of parenting time. Mother testified that she

receives the child on Wednesdays and Thursdays and keeps the child

overnight on Wednesdays, despite the Standard Order granting her

visitation on Wednesdays only, from 6:00 pm to 9:00 pm. Mother also

testified that she keeps the child overnight on Sundays and brings him to

school on Monday following her weekend visitation, despite the Standard

Order dictating that Mother’s weekend visitation ends at 6:00 pm on

Sunday. Mother also indicated that she had the child for multiple weeks

straight on an occasion due to Father’s work. Thus, in addition to a lack of

clear and convincing evidence that Father denied her parenting time as

ordered, Mother’s own testimony suggests that she has exercised parenting

time that exceeds the time granted to her in the Court’s Standard Order of

Parenting Time.

{¶ 30} Mother appeals from the juvenile court’s judgment, raising four assignments

of error. Father did not file a brief in response.

{¶ 31} Mother’s first assignment of error states:

THE TRIAL COURT DID NOT ERR IN ORDERING THAT

FATHER’S TOTAL GROSS INCOME SHOULD BE RE-CALCULATED TO
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INCLUDE HIS ANTICIPATED BONUSES AND THAT THE SUPPORT

WORKSHEET SHOULD BE ADJUSTED ACCORDINGLY.

{¶ 32} Since Mother’s first assigned error does not direct our attention to any error

by the juvenile court, we need not address it.

{¶ 33} Mother’s second assignment of error states:

THE TRIAL COURT ERRED IN IGNORING FATHER’S

AFFIRMATIVE DUTY CREATED VIA COURT ORDER TO NOT ONLY PAY

HALF OF THE MINOR CHILD’S COUNSELING COSTS, BUT ALSO TO

ENSURE THAT HIS SON WAS ATTENDING HIS COURT-APPOINTED

COUNSELING SESSIONS.

{¶ 34} With respect to contempt, this Court has noted:

Courts have certain inherent powers to ensure “the orderly and

efficient exercise of justice * * *.” (Citations omitted). Zakany v. Zakany, 9

Ohio St.3d 192, 194, 459 N.E.2d 870 (1984). These powers include “the

authority to punish the disobedience of the court's orders with contempt

proceedings.” (Citations omitted.) Id.

“Civil contempt is a remedy whereby an aggrieved party to a lawsuit

can enforce a civil remedy and thereby protect its rights. * * * A finding of

civil contempt requires clear and convincing evidence that the alleged

contemnor has failed to comply with the court's prior orders. * * * In order to

be clear and convincing, evidence must leave the trier of fact with the firm

conviction or belief that the allegations involved are true. Cross v. Ledford,

(1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118.” (Citations omitted.)
 -16-

Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268, 675 N.E.2d 1345

(2d Dist.1996).

We review trial court orders in contempt cases for abuse of

discretion. State v. Chavez-Juarez, 185 Ohio App.3d 189, 2009-Ohio-

6130, 923 N.E.2d 670, ¶ 56 (2d Dist.). “A prima facie case of civil contempt

is made when the moving party proves both the existence of a court order

and the nonmoving party's noncompliance with the terms of that order.”

(Citations omitted.) Wolf v. Wolf, 1st Dist. Hamilton No. C-090587, 2010-

Ohio-2762, ¶ 4. Accord Hoagland v. Hoagland, 2d Dist. Miami No. 2014-

CA-30, 2015-Ohio-2426, ¶ 6. “The burden then shifts to the nonmoving

party to establish a defense for its noncompliance.” Wolf at ¶ 4.

Streidl v. Streidl, 2d Dist. Montgomery No. 27165, 2017-Ohio-403, ¶ 25-27.

{¶ 35} Mother directs our attention to the May 31, 2016 magistrate’s decision and

Judge’s Order, which stated in pertinent part that “Father and Mother shall cooperate[ ]

to enroll the child in counseling and shall each follow the recommendations of the

counselor until further Court Order. The parties shall equally divide the costs for the

counseling.” Mother argues that the juvenile court incorrectly based its decision on the

fact that Father “may not have been told by Mother when the child’s counseling sessions

were,” but the order did not state “that it was Mother’s duty to be the personal secretary

of the Father.” Mother argues that Father showed his disregard for the court’s order and

for his child’s mental health by sending an email to the counselor indicating his intention

to withdraw his participation in counseling; “Father outright withdrew from cooperating on

the court order.” Mother also asserts that it was “only fair and equitable” that Father pay
 -17-

for the no-show appointments caused by his carelessness.

{¶ 36} As noted above, Mother testified that Father “withdrew his participation from

counseling,” citing Exhibit 16, an email from Father to the counselor’s office. Consistent

with Father’s testimony, Exhibit 16 provided:

To avoid any confusion with [G.D.B.’s] mother, I would appreciate if you

would schedule [G.D.B.’s] appointments for Wednesday evenings around

6pm. This is the time allowed for [Mother] to have visitation with [G.D.B.]

per the court order which states her visitation time is from 6pm-9pm every

Wednesday. I do not want to cause any conflict or confusion for you and

your patients. Thanks for your understanding.

[Father]

{¶ 37} Mother’s Exhibit 21 (a chart of G.D.B.’s appointments) reflected seven

missed appointments and one no-show, two of which occurred before December 6, 2016.

Mother testified that she scheduled G.D.B.’s counseling, took him, and paid through her

insurance. Only Mother’s name and address appeared on the Healing Waters account

(Exhibit 20). Although Mother asserted that she and Father had both signed a contract

with Prigg, she failed to produce it. While Mother further asserts that Father failed to

cooperate as ordered by the court, she also failed to do so by scheduling the

appointments without first consulting Father and then expecting him to meet her schedule,

often at the last minute. To the extent that Mother asserts that Father failed to ensure

the child’s participation in counseling, Exhibit 16 reflects that he emailed the counselor

asking to schedule the appointments during Mother’s parenting time to avoid confusion,

since Mother alone scheduled the appointments. We conclude that the juvenile court
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reasonably required Father to pay his share of the services G.D.B. actually received, but

not for “no-show” appointments that were scheduled by Mother. Mother’s second

assignment of error is overruled.

{¶ 38} Mother’s third assignment of error states:

THE TRIAL COURT ERRED BY FAILING TO ADJUST MOTHER’S

INCOME TO SIXTY PERCENT DISABILITY AMOUNT DUE TO HER

MEDICAL ISSUES.

{¶ 39} This Court’s remand was limited to the issues raised in Father’s motion for

child support and Mother’s contempt motions of March 31, 2017; April 26, 2017; and June

22, 2017. Although Mother objected that the court’s failure to adjust her income to “60%

disability amount,” her medical issues and any adjustment to her income based on those

issues were not properly raised by Mother at the hearing and are not properly before this

Court. Mother’s third assignment of error is overruled.

{¶ 40} Mother’s fourth assignment of error states:

THE TRIAL COURT ERRED IN DENYING MOTHER’S MOTIONS

TO SHOW CAUSE REGARDING PARENTING TIME BECAUSE MOTHER

DID PRESENT CLEAR AND CONVINCING EVIDENCE, WHICH THE

MAGISTRATE IGNORED.

{¶ 41} Mother asserts that she provided clear and convincing evidence that Father

should be held in contempt for denying her parenting time on several separate occasions.

She argues that she provided clear and convincing evidence that Father had violated the

visitation outlined in the standard order of parenting time, which was unrelated to the

parties’ agreement to deviate from the standard order in other respects.
 -19-

{¶ 42} Mother asserts that, with respect to Wednesday April 12, 2017, she

presented evidence that she was at the set pick-up location (Chick-fil-A), and Father did

not show up. She argues that her first weekend of parenting time for the year began

January 6, 2017. She asserts that “Father’s lack of knowledge as to the provisions in

the Order is substantially interfering with Mother’s parenting time, causing unnecessary

problems.” Mother also asserts that she was entitled to have the child Memorial Day

weekend 2017, and that she missed additional parenting time in January 2018. As we

noted above, the remand and hearing were limited to Mother’s show cause motions filed

on March 31, 2017; April 26, 2017; and June 22, 2017, although the juvenile court

apparently considered the January 2018 parenting time.

{¶ 43} The Standard Order of Parenting Time provides:

Parents are encouraged to agree on a fair written parenting time schedule

that fits their circumstances and their children’s lives, with the following

serving as a schedule when the parents cannot agree. The parents may

change this schedule by agreement. * * * Each parent has a duty to facilitate

and encourage the other parent’s parenting time with the children.

1. WEEKENDS: The non-residential parent shall have parenting time on

alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. * * *

2. WEEKDAY: The non-residential parent shall have parenting time from

6:00 p.m. to 9:00 p.m. each Wednesday evening or another weekday

evening by agreement * * *.

3. HOLIDAYS: The father shall have the children on the holidays in

Column 1 in odd-numbered years and the holidays in Column 2 in the even-
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numbered years. The mother shall have the children on the holidays in

Column 1 in even-numbered years and the holidays in Column 2 in odd-

numbered years:

Column 1 Column 2

Martin Luther Kind, Jr. Day President’s Day

Easter Sunday Memorial Day

Fourth of July Labor Day

Beggar’s Night (6:00 to 9:00 p.m.) Thanksgiving Day

Parenting time shall be from 9:00 a.m. the day of the holiday until 9:00 p.m.

* * * When the holiday falls on a Monday immediately following a non-

residential parenting time weekend, the non-residential parent shall be

entitled to keep the children continuously from 6:00 p.m. Friday to 6:00 p.m.

Monday.

***

5. CHRISTMAS BREAK: In all even-numbered years, the mother shall

have the children from the day school recesses * * *, until 9:00 p.m.

December 24 and the father shall have the children from 9:00 p.m.

December 24 though 6:00 p.m. January 1. In all odd-numbered years the

reverse shall apply.

***

7. SPRING BREAK: In odd-numbered years the father shall have all the

children for the spring break from school, starting at 9:00 a.m. the day after

school recesses to 6:00 p.m. the Sunday before school resumes. The
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Mother shall have the children for spring break in the even-numbered years.

***

***

15. TRANSPORTATION: The non-residential parent has the

responsibility for transportation of the children to and from their home for

parenting time with them * * *.

(Emphasis added.)

{¶ 44} In 2016, (an even-numbered year), pursuant to the standard order, Father

should have had the child through January 1, 2017, supporting Mother’s assertion that

the weekend of January 6-7, 2017, was her first parenting weekend of the year.

Counting alternating weekends from there, Mother would have been entitled to parenting

time on the weekend of April 14-16, 2017, as well as the weekend of May 26-28, 2017,

including Memorial `Day. It is clear, however, that the parties did not follow the standard

order as written regarding visitation. Mother did not produce a written agreement

entered into by both parties separate from the standard order. The parties have altered

drop-off and pick-up locations repeatedly, as well as the lengths of Mother’s parenting

time. For example, Mother testified that she had the child “the entire span” of September

27-November 14, 2017, and that she kept the child overnight on Wednesdays.

Moreover, pursuant to the standard order, Mother was responsible for providing

transportation during her parenting time by picking up the child at Father’s home and

returning him there, and she did not present any evidence that she attempted to do so on

the occasions in question.

{¶ 45} As the juvenile court noted, Father’s failure to comply with any separate
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agreement between the parties was not a violation of the court’s standard order of

parenting time. The Chick-fil-A receipt merely established that Mother was at Chick-fil-

A in the afternoon on April 14, 2017, not that Father was required to drop the child off at

that time for her weekend visitation. Father testified that he had the child for spring break

in 2017, consistent with the standard order. Mother testified that spring break occurred

from March 19, 2017 (a Sunday) to April 4, 2017 (a Tuesday), which would have been an

unusual time period (17 days). Mother’s assertion in her brief that the parties’ deviation

from the standard order was not an issue herein, but that Father’s failure to comply with

the standard order was the issue, defies logic. Based upon the parties’ significant

deviations from the standard order with respect to Mother’s visitation, the juvenile court

did not abuse its discretion in concluding that she had not proven that Father was in

contempt. Mother’s fourth assignment of error is overruled.

{¶ 46} Having overruled Mother’s assigned errors, the judgment of the juvenile

court is affirmed.

.............

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

James Kirkland
Ellen Weprin
Hon. Helen Wallace