Brown v. Brown , 2019 Ohio 2164 ( 2019 )

[Cite as Brown v. Brown, 2019-Ohio-2164.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
LEAH KATE BROWN, :
Appellee, : CASE NO. CA2018-08-064
: OPINION
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:
CLINTON BROWN, :
Appellant. :
APPEAL FROM CLERMONT COUNTY COMMON PLEAS COURT
DOMESTIC RELATIONS DIVISION
Case No. 2015DRC00545
Alexander, Wagner & Kinman, Christopher M. Alexander, 423 Reading Road, Mason, Ohio
45040 for appellee
Allen Law Firm, LLC, Mitchell W. Allen, 8469 Mason-Montgomery Road, Suite 2, Mason,
Ohio 45040 for appellant
HENDRICKSON, P.J.
{¶ 1} Clinton Brown ("Father") appeals the decision of the Clermont County Court of
Common Pleas, Domestic Relations Division, which terminated the shared parenting
agreement between Father and appellee, Leah Kate Brown ("Mother"), and which designated
Mother the sole residential parent and legal custodian of their two children. For the reasons
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described below, this court reverses and remands for the limited purpose of recalculating
child support, but otherwise affirms the domestic relation court's decision.
{¶ 2} Mother and Father married in 2004. In 2009, the marriage produced twin
children, a girl ("Daughter"), and a boy ("Son"). In 2015, Mother and Father jointly petitioned
the domestic relations court for dissolution and submitted a jointly proposed shared parenting
agreement. The domestic relations court subsequently entered a final decree of dissolution
and a decree of shared parenting. The shared parenting agreement named both parents
residential parents and legal custodians of the children. The agreement provided Father with
parenting time on Tuesday and Thursday evenings and every Saturday morning until Sunday
afternoon.
{¶ 3} Since the age of four, and before the marriage dissolved, Daughter had
participated in cheerleading ("cheer"). Daughter continued this activity after the dissolution.
As Daughter advanced in age and experience, cheer became more focused on tumbling
routines. Daughter enjoyed cheer and she would "light up" when she talked about tumbling.
Both Mother and Father supported Daughter in cheer, which required two weekday practices
and eight to ten weekend competitions per year.
{¶ 4} For several years Mother and Father successfully co-parented. However,
Father remarried in 2016. This event apparently caused tension in the co-parenting
relationship. In April 2017, Father informed Mother via e-mail that he would no longer
"support" Daughter's cheer, writing, "I am not going to support [cheer] any longer. I am not
going to continue to spend money to lose time with [Daughter]. If you choose for her to
continue in [cheer], I will also want to make up any lost parenting time as a result of weekend
competitions."
{¶ 5} Meanwhile, other conflicts in shared parenting began to develop. In April 2017,
Mother moved the domestic relations court to "enforce" certain aspects of the shared
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parenting agreement. Father responded by moving to terminate shared parenting and
requested the court name him sole residential parent and legal custodian of the children. The
domestic relations court appointed a guardian ad litem ("GAL") to investigate and make a
custody recommendation.
{¶ 6} Meanwhile, Mother signed Daughter up for her fourth season of cheer without
Father's agreement. Weekend competitions were set to begin in the last two weeks of
October 2017. Several weeks prior to the first event, and after the GAL had recommended
that Daughter be allowed to participate in cheer, Mother e-mailed Father with the complete
list of cheer competitions, beginning October 2017 through March 2018. Mother stated she
was "open to any suggestion about how/when to make up time if you do not decide to attend
the events, but we can handle each one as they come." Father responded, stating that he
and Mother were "still bound by the existing parenting agreement" and he was "not sure how
to proceed and will be contacting my attorney."
{¶ 7} Shortly after Mother sent this communication, Father began demanding,
through e-mail, that Mother promise to stop approaching him and speaking to him at their
children's events. Mother would not agree and stated that she thought it was in their
children's best interest that they put aside personal differences while attending their children's
events and that they should simply be polite to one another. Mother explained "I have no
desire to be around you, but I do believe it's healthy for two parents to share information
about their kids at the kids' events. I also believe that this whole situation is easier on the
kids if we are just simply polite to one another."
{¶ 8} Father then petitioned for a civil protection order, which he was granted ex
parte. This protection order was subsequently dismissed. However, the order of protection
was in place for multiple weeks before a hearing was conducted. Mother then moved to
terminate shared parenting.
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{¶ 9} Mother's counsel wrote to Father's counsel in advance of the first cheer
competitions in October to determine how Father wished to proceed given Father's lack of
support for cheer. Father failed to provide any substantive response until two days before
the first cheer competition. Father's counsel indicated that Father would not bring Daughter
to the event and would not agree to alter his parenting time to permit Daughter to participate.
Father explained that this decision was premised on Mother's "contempt of the Shared
Parenting Plan, her disregard of his requests" and "her continued emotional blackmail of
him."
{¶ 10} That Saturday, Mother did not deliver Daughter to Father for Father's parenting
time. Instead, Mother kept Daughter and took her to her cheer competition. In the ensuing
week, the GAL contacted the parties and attempted to mediate a temporary solution, relaying
to Father that the GAL believed that it was in Daughter's best interest to participate in the
next cheer competition and that Father should take her to the competition. Father would not
agree to do so. As a result, Mother did not deliver Daughter to Father for a second Saturday
and instead took the child to her cheer competition. During November and December 2017,
Mother withheld Daughter from Father's parenting time on two additional occasions to allow
Daughter to attend her cheer competitions.
{¶ 11} Between October and December 2017, Father filed three contempt motions,
alleging multiple instances of contempt, including each instance where Mother withheld
Daughter from his parenting time for cheer.
{¶ 12} In January 2018, a domestic relations court magistrate held a hearing on the
parents' competing motions to terminate shared parenting and Father's contempt motions.
At the beginning of the hearing, Father indicated that he was, in addition to moving to
terminate shared parenting, alternatively requesting that the court modify the shared
parenting agreement to provide him with additional parenting time.
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{¶ 13} Mother testified about Daughter's love for cheer, which Mother described as the
one consistent part of Daughter's life. Mother took Daughter to her weekday practices, which
always occurred during Mother's parenting time. Mother testified that she initially understood
Father's position on cheer was that she could enroll Daughter but would have to pay for the
activity herself – approximately $3,500 per season – and that she would have to give Father
makeup parenting time for any cheer competition that occurred during Father's weekend
parenting time.
{¶ 14} Father testified, conceding that he had not attended any of Daughter's cheer
competitions since the dispute began but had attended all of Son's football events. He
explained that he attended Son's events "because all of those were agreed to [with Mother]
prior * * *." Father acknowledged that his children probably would not view the issue the
same way he did and that "I know that it hurts [Daughter]." Father said he had talked to
Daughter about why he did not support her in cheer, and explained, "I hate that for her and I
know how much she likes it but to me as her father my time with her is more important."
Father testified that he would be willing to allow Daughter to participate in cheer and would
attend her events, but only if Mother or the domestic relations court gave him equal parenting
time. Father also softened his earlier refusal to speak with Mother and testified that he would
be willing to verbally communicate with Mother so long as they followed up the conversation
with a written confirmation of what was said.
{¶ 15} The GAL testified concerning her investigation. Initially, the GAL had
recommended that the parents attempt to work through their issues and continue shared
parenting, with Mother to be named the residential parent, Father to have alternating
weekend parenting time, and that Daughter be permitted to continue cheer. However, the
GAL eventually changed her recommendation to terminating the shared parenting agreement
because of the high level of conflict between the parents and because Father had indicated
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to the GAL that he did not want to speak to Mother under any circumstances. The GAL
described Father to the magistrate as "absolutely unreasonable" in terms of his willingness to
communicate with Mother.
{¶ 16} After hearing the evidence, the magistrate issued a decision recommending
that the court terminate the shared parenting agreement and name Mother sole residential
parent and legal custodian. The magistrate further recommended that Mother should have
sole decision-making authority with respect to the children's extracurriculars and medical
decisions. In so recommending, the magistrate noted Father's refusal to communicate with
Mother and found that Father had placed his own interests ahead of his children's best
interests.
{¶ 17} The magistrate further recommended that Father have parenting time with the
children one day during the week and on alternating weekends. The magistrate also issued
a new child support order based on exhibits and testimony regarding the parents' respective
incomes.
{¶ 18} With regard to Father's contempt motions, the magistrate recommended the
court find Mother guilty of contempt for certain violations of the shared parenting agreement,
including each time Mother withheld Daughter from Father during Father's parenting time.
The court found that Mother was a first offender of these violations and imposed a $100 fine,
ordered Mother to pay Father $500 in attorney fees, to pay Father's court costs, and awarded
Father makeup parenting time.
{¶ 19} Father objected to the magistrate's decision. The judge overruled the
objections and adopted the magistrate's decision. With respect to extracurriculars, the judge
added an order prohibiting Mother from enrolling the children in more than one extracurricular
activity per season that interfered with Father's parenting time.
{¶ 20} Father appeals, raising nine assignments of error.
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{¶ 21} Assignment of Error No. 1:
{¶ 22} THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING THE
SHARED PARENTING PLAN AS REQUESTED BY MS. BROWN RATHER THAN
MODIFYING THE EXISTING PLAN AS REQUESTED BY MR. BROWN.
{¶ 23} Father argues that the court abused its discretion in terminating the shared
parenting agreement and designating Mother sole residential parent and legal custodian.
Father contends the court should have modified the existing shared parenting agreement and
awarded him equal parenting time with the children.
{¶ 24} A domestic relations court has discretion in custody matters, and its decision in
such matters will not be reversed absent an abuse of that discretion. Davis v. Flickinger, 77
Ohio St. 3d 415 (1997), paragraph two of the syllabus. An abuse of discretion implies that the
court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983).
{¶ 25} Pursuant to R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting
decree entered pursuant to R.C. 3109.04(D)(1)(a)(i) "upon the request of one or both of the
parents or whenever it determines that shared parenting is not in the best interest of the
children." A shared parenting decree is entered pursuant to R.C. 3109.04(D)(1)(a)(i) where
"both parents jointly make the request [for shared parenting] in their pleadings or jointly file
the motion and also jointly file the plan."
{¶ 26} In this case, Mother and Father jointly entered a decree of shared parenting
pursuant to R.C. 3109.04(D)(1)(a)(i) and separately moved the court to terminate shared
parenting. Accordingly, the court was permitted to terminate the decree pursuant to R.C.
3109.04(E)(2)(c) and Father has not demonstrated an abuse of discretion. Moreover, and as
will be discussed in the following assignment of error, the domestic relations court could have
terminated the decree based upon its finding that shared parenting was not in the children's
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best interest. This court overrules Father's first assignment of error.
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MS. BROWN
SOLE CUSTODY OF THE MINOR CHILDREN FOR REASONS THAT WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 29} Father argues that the domestic relation court's findings relative to the
children's best interest were not supported by the evidence. Specifically, Father argues that
the court should have concluded that shared parenting, where Father received equal
parenting time, was in the children's best interest.
{¶ 30} This court reviews the domestic relations court's factual findings underpinning
its custody determination on a manifest weight of the evidence standard. In re Lamb, 12th
Dist. Butler No. CA95-01-006, 1996 Ohio App. LEXIS 422, *7 (Feb. 12, 1996). In reviewing
the manifest weight of the evidence, this court weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20.
{¶ 31} Following the termination of a shared parenting agreement pursuant to R.C.
3109.04(E)(2)(c), the domestic relations court is required to issue a decree allocating
parental rights and responsibilities "as if no decree for shared parenting had been granted
and as if no request for shared parenting ever had been made." R.C. 3109.04(E)(2)(d). In
determining how to allocate parental rights, the court must take into consideration the best
interest of the children. R.C. 3109.04(B)(1). The factors relevant to determining the best
interest of the children are set forth under R.C. 3109.04(F)(1). The factors relevant to
whether a shared parenting agreement would be in the children's best interest are set forth
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under R.C. 3109.04(F)(2).
{¶ 32} The relevant best interest factors considered by the domestic relations court
pursuant to R.C. 3109.04(F)(1) were:
(a) The wishes of the child's parents regarding the child's care;
***
(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly
affect the child's best interest;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
***
(i) Whether the residential parent or one of the parents subject to
a shared parenting decree has continuously and willfully denied
the other parent's right to parenting time in accordance with an
order of the court; * * *.
{¶ 33} Regarding R.C. 3109.04(F)(1)(a), the court noted that Mother and Father both
moved to terminate shared parenting and requested the court name each the children's sole
residential parent and legal custodian. The court also noted that Father moved for a
modification to the existing shared parenting decree.
{¶ 34} With respect to R.C. 3109.04(F)(1)(c), the court incorporated the findings of the
magistrate, which the court found were supported by the evidence. The GAL reported the
children as "very bonded" with both parents and the children were also bonded with Father's
new wife and her children.
{¶ 35} Concerning R.C. 3109.04(F)(1)(d), the court incorporated the finding of the
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magistrate, which the court found was supported by the evidence. The magistrate found that
the children were doing well in school.
{¶ 36} In regard to R.C. 3109.04(F)(1)(e), the court incorporated the findings of the
magistrate, which the court found were supported by the evidence. The magistrate found
that Son had been diagnosed with attention deficit hyperactivity disorder and oppositional
defiant disorder and had been prescribed medication. Both parents had been encouraged to
either attend an eight-session parent group, conduct research in books and websites, or
both, to better understand these conditions. Mother took the class. Father did not. Instead,
he chose to do research, which he explained consisted of talking to his wife and his wife's
sister, who had a child with attention deficit disorder and oppositional defiant disorder.
{¶ 37} With respect to R.C. 3109.04(F)(1)(f), the court found that Father failed to
exercise parenting time with Daughter during her cheer competitions in the 2017-2018
season. The court specifically noted the email communications in evidence that reflected
Mother's attempts to discuss and make arrangements concerning Daughter's upcoming
weekend cheer competitions. Father delayed responding and then ultimately relayed,
through counsel, that he would not allow Daughter to attend the cheer competition and would
not alter his parenting time to allow Daughter to participate. The court also noted that there
was no evidence that Father missed any parenting time with Son.
{¶ 38} Regarding R.C. 3109.04(F)(1)(i), the court noted that Father did not exercise his
scheduled parenting time during Daughter's cheer competitions during the 2017-2018
season.
{¶ 39} With respect to any other relevant factor considered by the court, the court
adopted the magistrate's findings. The magistrate found that Daughter was in her fourth
season of cheer and that this extracurricular activity had become a major source of conflict
between the parents. Cheer was the "most consistent" part of Daughter's life since age four.
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The GAL reported that the Daughter "lights up when she talks about her tumbling passes, her
friends on the team, and her coaches."
{¶ 40} After Daughter's third season of cheer, Father decided that he would no longer
support Daughter in cheer, and because his parenting time coincided with weekend cheer
events, Daughter would have to miss those events. The GAL reported that Daughter no
longer believed that Father thought she was a good cheerleader.
{¶ 41} Father would agree to take Daughter to cheer, but only if Mother or the
domestic relations court granted him equal parenting time. The magistrate found that Father
was putting his own interests ahead of Daughter.
{¶ 42} The magistrate also noted that Father had decided that he would not allow Son
to participate in basketball after initially agreeing to it at Mother's request a day prior. Father
explained he was attempting to be "fair" because he had decided not to allow Daughter to
participate in cheer.
{¶ 43} The magistrate further noted that Father did not want to have any interactions
with Mother at the children's extracurricular activities and had gone so far as to file a civil
protection order against Mother to ensure that she would not approach him at the children's
activities, which protection order was ultimately dismissed. Father told the GAL he wanted
Mother to "stay away from him." Based on the foregoing, the court determined that it was in
the children's best interest to designate Mother as sole residential parent and legal custodian.
{¶ 44} The domestic relations court also considered the following R.C. 3109.04(F)(2)
factors relevant to whether a shared parenting agreement would be in the children's best
interest:
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
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***
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared
parenting;
(e) The recommendation of the guardian ad litem of the child, if
the child has a guardian ad litem.
{¶ 45} With respect to R.C. 3109.04(F)(2)(a), the court found that the email
communications submitted at the hearing demonstrated that Mother and Father were no
longer able to cooperate and make decisions jointly. Furthermore, the court noted other
instances where both parents failed to act cooperatively in shared parenting. For example,
Father failed to inform Mother of Father's decision to punish Son by prohibiting his
involvement in a football event. In another instance, Mother rescheduled the children's
medical appointment without consulting Father although she told Father about the
rescheduled appointment after the fact. When Father learned of an earlier available medical
appointment he took the children to the appointment by himself and without informing
Mother. The court further noted Father's refusal to communicate with Mother.
{¶ 46} Concerning R.C. 3109.04(F)(2)(b), the court observed that both parents loved
their children but only supported the sharing of love between the children and the other
parent if they agreed with the other parent's actions. The court also found that both parents
had told the children too much about this dispute.
{¶ 47} Regarding R.C. 3109.04(F)(2)(d), the court noted that Mother lived in the
children's school district and Father lived 20 minutes away in a different school district.
{¶ 48} With respect to R.C. 3109.04(F)(2)(e), the court noted that the GAL initially
recommended shared parenting but had changed her recommendation. The GAL found that
Mother and Father were unable to communicate to the level required for shared parenting.
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The domestic relations court agreed with the GAL's assessment.
{¶ 49} After a thorough review of the record, this court concludes that the domestic
relations did not lose its way in allocating parental rights and responsibilities with Mother as
sole residential parent and legal custodian of the children. The evidence at the hearing
indicated that Father was aware of how important cheer was to Daughter yet took the
position that he would no longer support Daughter's participation because it interfered with
his parenting time. Moreover, Father was not amenable to working with Mother in any
respect to arrive at a solution to allow Daughter to participate. While Mother made attempts
to work with Father to allow Daughter to participate in cheer, Father refused and instead used
the conflict as a litigation strategy to acquire more parenting time. Most revealing in this
regard, Father testified that he would only support Daughter's participation in cheer if Mother
or the domestic relations court gave him what he wanted, i.e., additional parenting time.
{¶ 50} The evidence also supported the domestic relations court's decision that shared
parenting was not in the children's best interest. In written email correspondence introduced
at trial and Father's own statements to the GAL, Father was adamant he did not want Mother
to speak with him in person, even if it was just a simple matter concerning the children.
Although Father moderated his position on this issue at the hearing, the domestic relations
court could have found him less than credible on this subject due to his inconsistent
statements. Finally, Father's unwillingness to communicate with Mother culminated in his
filing a meritless petition for a civil protection order.
{¶ 51} Father argues that the court erred by not taking into consideration Mother's
violations of the shared parenting agreement. There is no dispute that Mother intentionally
withheld Daughter during Father's parenting time and this action was improper, However,
Mother's motivations in doing so were for purposes of ensuring that Daughter was able to
participate in an activity she enjoyed and for which Father withheld his permission for
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purposes that appear to be focused on generating conflict and promoting a litigation strategy.
Moreover, with respect to the contempt finding, the magistrate noted that this was a "close"
issue as Father's initial response to Mother on Daughter's participation in cheer could have
reasonably been interpreted as Father's acquiescence so long as he received makeup
parenting time.
{¶ 52} Father also argues that the court ignored that the GAL had at one time
recommended shared parenting. However, by the time of the hearing, the GAL had changed
her viewpoint on that subject because of Father's untenable position on communicating with
Mother. Consequently, this court concludes that the domestic relations court's decision to
terminate shared parenting and name Mother sole residential parent and legal custodian is
supported by the weight of the evidence. This court overrules Father's second assignment of
error.
{¶ 53} Assignment of Error No. 3:
{¶ 54} THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MS. BROWN
SOLE DECISION-MAKING AUTHORITY FOR ALL EXTRACURRICULAR ACTIVITES AND
MEDICAL DECISIONS.
{¶ 55} In his third assignment of error, Father argues that the domestic relations court
erred in granting Mother sole decision-making authority for extracurricular activities and
medical issues. Father argues that Mother should not be so empowered because she
"deliberately and consistently violated the [domestic relations court's] orders."
{¶ 56} Father's argument lacks merit. As discussed in the previous assignment of
error, Father's actions demonstrated he was not amenable to co-parenting. Under the
circumstances of this case, it was not an abuse of discretion to give decision-making
authority over extracurricular activities and medical decisions to Mother, the residential
parent.
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{¶ 57} Father also argues that he is now "at the mercy" of Mother who can schedule
the children's activities during his parenting time "with impunity." However, the court order
specifies that Mother can only sign the children up for one activity per season that interferes
with Father's parenting time. This court overrules Father's third assignment of error.
{¶ 58} Assignment of Error No. 4:
{¶ 59} THE TRIAL COURT ERRED BY NAMING MOTHER AS THE RESIDENTIAL
PARENT AND SOLE CUSTODIAN OF THE PARTIES' MINOR CHILDREN IN VIOLATION
OF O.R.C. §3109.04(E)(1)(A).
{¶ 60} Father argues that the court failed to make certain required "change of
circumstances" findings before terminating shared parenting. Father cites R.C.
3109.04(E)(1)(a), which provides in relevant part:
The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds *
* * that a change has occurred in the circumstances of the child *
* * and one of the following applies:
(i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to
a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated
into the family of the person seeking to become the residential
parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to
the child.
{¶ 61} At the hearing, the parties stipulated to a change of circumstances. However,
Father now argues that the domestic relations court failed to make one of the specific
findings set forth in R.C. 3109.04(E)(1)(a)(i)-(iii) and therefore could not terminate the shared
parenting decree.
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{¶ 62} The domestic relations court did not "modify" Mother and Father's prior decree
on parental rights and responsibilities. Pursuant to Mother's request, the domestic relations
court terminated the shared parenting decree. This court has consistently held that a motion
to terminate shared parenting is governed by R.C. 3109.04(E)(2)(c) and does not require a
showing of a change of circumstances under R.C. 3109.04(E)(1)(a). Manis v. Manis, 12th
Dist. Warren No. CA2014-05-070, 2014-Ohio-5086, ¶ 13; C.D. v. D.L., 12th Dist. Fayette No.
CA2006-09-037, 2007-Ohio-2559, ¶ 15-19; A.S. v. D.G., 12th Dist. Clinton No. CA2006-05-
017, 2007-Ohio-1556, ¶ 31; In re Wright, 12th Dist. Brown No. CA96-10-019, 1997 Ohio App.
LEXIS 2229, *7 (May 27, 1997); Zmyslo v. Zmyslo, 12th Dist. Warren No. CA96-02-016,
1996 Ohio App. LEXIS 5353, *8-9 (Dec. 2, 1996); Patton v. Patton, 12th Dist. Clinton No.
CA94-04-011, 1995 Ohio App. LEXIS 161, *7-8 (Jan. 23, 1995). Although the parties
stipulated to a change of circumstances, it was unnecessary to permit the court to terminate
the shared parenting agreement. Therefore, this court overrules Father's fourth assignment
of error.
{¶ 63} Assignment of Error No. 5:
{¶ 64} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING MS. BROWN TO
BE ONLY A FIRST OFFENDER OF CONTEMPT, AND SANCTIONING HER
PROPORTIONATELY, WHERE THE TRIAL COURT FOUND THAT SHE HAD VIOLATED
COURT ORDERS ON SEVEN SEPARATE OCCASIONS.
{¶ 65} Father argues that the court erred in finding Mother a "first offender" despite
multiple findings of contempt and that he should have been awarded $1500 in attorney fees,
i.e., $500 for each of the three contempt motions he filed. An appellate court reviews a lower
court's contempt findings, including the imposition of penalties, under the abuse of discretion
standard. Mackowiak v. Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-
3013, ¶ 45. Contempt of court is governed by R.C. 2705.05, which provides:
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(A) In all contempt proceedings, the court shall conduct a
hearing. At the hearing, the court shall investigate the charge
and hear any answer or testimony that the accused makes or
offers and shall determine whether the accused is guilty of the
contempt charge. If the accused is found guilty, the court may
impose any of the following penalties:
(1) For a first offense, a fine of not more than two hundred fifty
dollars, a definite term of imprisonment of not more than thirty
days in jail, or both;
(2) For a second offense, a fine of not more than five hundred
dollars, a definite term of imprisonment of not more than sixty
days in jail, or both;
(3) For a third or subsequent offense, a fine of not more than one
thousand dollars, a definite term of imprisonment of not more
than ninety days in jail, or both.
{¶ 66} Father filed three contempt motions, alleging nine violations of the shared
parenting agreement. After hearing the evidence, the court found Mother guilty of contempt
as a first offender for: (1) failing to resolve any parental dispute outside the children's
presence (Mother talked with Daughter about the GAL's custody recommendation), (2) failing
to provide Father with his right of first refusal to parenting time on one occasion, (3) for
enrolling Daughter in an activity (cheer) that would impact Father's parenting time without an
agreement to do so, and (4) withholding Daughter from Father's parenting on the four
weekend days for cheer.
{¶ 67} For these violations, the court imposed a $100 fine, ordered that Father receive
makeup parenting time, and ordered that Mother pay Father's court costs in the amount of
$495 (there was a $165 filing fee for each of the three contempt motions). With respect to
attorney fees, the court noted that Father failed to put on any evidence concerning his
attorney fees but still awarded him $500, the presumptive "reasonable" attorney fee pursuant
to the local rules of the court.
{¶ 68} Father argues that because Mother was found guilty of over three violations of
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the shared parenting agreement she should have been found to be a third-time offender.
This court does not find that the domestic relations court abused its discretion in finding
Mother to be a first-time offender because there was no evidence presented indicating that
Mother had been found guilty of any contempt offenses prior to the hearing. See State ex
rel. Clermont County Dept. of Human Servs. v. Walsson, 108 Ohio App. 3d 125 (12th
Dist.1995). See also Tippie v. Patnik, 11th Dist. Geauga No. 2005-G-2665, 2006-Ohio-6532,
¶ 9, fn.1.
{¶ 69} Father further argues that the court should have awarded him $500 in attorney
fees for each contempt motion filed. However, Father failed to present any evidence
concerning his attorney fees and thus cannot demonstrate that the domestic relations court
abused its discretion in awarding him the presumptive "reasonable" attorney fee. This court
overrules Father's fifth assignment of error.
{¶ 70} Assignment of Error No. 6:
{¶ 71} THE TRIAL COURT ERRED IN FAILING TO CONSIDER ALL MS. BROWN'S
INCOME FROM ALL SOURCES WHEN CALCULATING CHILD SUPPORT.
{¶ 72} Father argues that the court failed to consider income earned by Mother in
calculating the child support obligation of each party. A trial court has wide discretion
regarding domestic relations child support obligations, and the decision of the trial court will
not be disturbed unless an abuse of discretion has ocurred. Booth v. Booth, 44 Ohio St. 3d
142, 144 (1989).
{¶ 73} Initially, Mother argues that Father failed to raise this issue and has waived all
but civil plain error. However, the record indicates that Father did raise the issue in his
objections to the magistrate's decision. The juvenile court did not address this specific
objection in its order.
{¶ 74} An exhibit introduced by Mother indicates that she earned $3,517 from teaching
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aerobic classes in 2017. Mother testified that this amount did not reflect her expenses in
teaching the classes but did not testify concerning these expenses. The child support
worksheet does not appear to reflect this income.
{¶ 75} This court concludes that it must reverse and remand on this limited issue
because the domestic relations court did not rule on the objection and it otherwise does not
appear that the court accounted for this income in the child support worksheet. Failure to
rule on an objection is error. This court sustains Father's sixth assignment of error.
{¶ 76} Assignment of Error No. 7:
{¶ 77} THE TRIAL COURT ERRED IN AVERAGING MS. BROWN'S ONE BONUS
OVER THREE YEARS WHEN CALCULATING CHILD SUPPORT.
{¶ 78} Father argues that the court erred in computing Mother's annual income where
it failed to properly account for a work bonus she received in 2017.
{¶ 79} R.C. 3119.05(D) provides:
When the court or agency calculates the annual income of a
parent, it shall include the lesser of the following as income from
overtime and bonuses:
(1) The yearly average of all overtime, commissions, and
bonuses received during the three years immediately prior to the
time when the person's child support obligation is being
computed;
(2) The total overtime, commissions, and bonuses received
during the year immediately prior to the time when the person's
child support obligation is being computed.
{¶ 80} The evidence was that Mother's employer paid her a bonus of $17,500 in 2017.
However, Mother did not receive any bonuses in the two preceding years, i.e., 2015 and
2016. The court averaged the preceding two years receipt of no bonuses with the 2017
bonus and arrived at the figure of $5,833 as the lesser of the two statutory options available
under R.C. 3119.05(D).
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{¶ 81} Father argues that because Mother did not receive any bonuses in 2015 and
2016 and subsection one refers to "bonuses received during the three years" then the court
should not have included her non-receipt of bonuses in arriving at a three-year average. In
other words, Father believes that the average of bonuses received should have been
$17,500, the only bonus "received" during the prior three years.
{¶ 82} This court disagrees with Father's interpretation of the statue. The statute
operates to allow the obligor the lesser of either the average bonus received by the obligor
over three years or the preceding year's bonus. Therefore, if the object of the statue is to
provide a realistic yet conservative approximation of bonuses received over time, then it
would be logical to include in the average those years during which no bonuses were awared.
Father's interpretation of the statute would lead to an absurd result in a case such as this one
where an obligor received no bonuses in years one and two but a bonus in year three.
Father's interpretation also arbitrarily requires that an obligor must have received some
bonus each year – even if it was only a nominal amount – to be counted toward the average.
This court overrules Father's seventh assignment of error.
{¶ 83} Assignment of Error No. 8:
{¶ 84} THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING AND
CONSIDERING A GAL REPORT THAT WAS INADMISSIBLE UNDER THE RULES OF
EVIDENCE.
{¶ 85} Father argues that the court erred in admitting the GAL's written report.1 Father
contends that the report should not have been admitted because it contains summaries of
interviews and correspondence with various individuals, including the minor children, and that
these summaries and communications constitute inadmissible hearsay. "Decisions regarding
1. Father refers to "plain error" in his assignment of error. However, the record reflects that he did raise this
issue with the domestic relations court.
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the admission of evidence are within the sound discretion of the domestic relations court and
may not be reversed absent an abuse of discretion." Koehler v. Koehler, 12th Dist. Brown
Nos. CA2017-12-016 and CA2017-12-017, 2018-Ohio-4933, ¶ 45.
{¶ 86} This court does not find that the domestic relations court abused its discretion
in admitting the GAL's report. At the outset, Father fails to specifically address which
statements in the report constitute alleged inadmissible hearsay. In overruling Father's
objections, the domestic relations court noted that the out-of-court statements in the report
had not been considered for the truth of the matter asserted. This would suggest that the
statements were not hearsay. Regardless, even if the GAL's report contained hearsay, this
court cannot find prejudice when Father has failed to identify specific objectionable
statements. Additionally, the GAL testified concerning her investigation and was subject to
full cross-examination by Father. This court overrules Father's eighth assignment of error.
{¶ 87} Assignment of Error No. 9:
{¶ 88} THE TRIAL COURT ERRED IN ALLOWING THE GAL TO PARTICIPATE AS
AN ATTORNEY IN A CASE IN WHICH SHE WAS NOT APPOINTED AS AN ATTORNEY.
{¶ 89} Finally, Father contends that the domestic relations court erred in allowing the
GAL to participate in the hearing by examining witnesses. Father concedes that a local rule
of the domestic relations court specifically permitted the GAL to examine witnesses but
argues that the rule conflicts with various other procedural and substantive rules of law.
Specifically, Local Rule 29 of the Clermont County Common Pleas Court, Domestic Relations
Division, provides that "[i]n representing the best interest of the child/ren and providing the
Court with relevant information, the GAL may review all confidential records involving the
child/ren by request, subpoena, and deposition, subpoena and examine independent
witnesses, and cross examine all witnesses called by the parties to the case." Loc.R. DR
29(B)(4). Father argues that Loc.R. 29(B)(4) violates the Rules of Civil Procedure, the Rules
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of Evidence, the Rules of Superintendence, the Rules of Professional Conduct, and the
common law by permitting an individual functioning as a non-attorney to act as an attorney in
court.2
{¶ 90} Sup.R. 48(D) addresses the responsibilities of GALs and provides that "[a]
guardian ad litem shall appear and participate in any hearing for which the duties of a
guardian ad litem or any issues substantially within a guardian ad litem's duties and scope of
appointment are to be addressed." Loc.R. 29(B)(4) appears consistent with the objective of
Sup.R. 48, which is that a GAL participate "in assisting the court in its determination of a
child's best interest." Sup.R. 48(A).
{¶ 91} Father argues that Loc.R. 29(B)(4) violates Rule 3.7 of the Ohio Rules of
Professional Conduct, which addresses whether a lawyer may act as an advocate at a trial
where the lawyer may be a witness. However, a court of appeals is not the proper forum for
raising alleged professional conduct rule violations. In re Estate of Dye, 12th Dist. Fayette
Nos. CA2011-04-004, CA2011-04-005, and CA2011-04-006, 2012-Ohio-2570, ¶ 85. Father's
ninth assignment of error is meritless and is overruled.
{¶ 92} Judgment reversed as to the child support calculation as addressed in the
discussion of Father's sixth assignment of error, and remanded for further proceedings on
that issue, but otherwise affirmed in all respects.
S. POWELL and PIPER, JJ., concur.
2. In his assignment of error, Father only articulates how the local rule allegedly violates the Rules of
Superintendence and the Rules of Professional Conduct.
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