Schutz v. Schutz , 2017 Ohio 695 ( 2017 )

[Cite as Schutz v. Schutz, 2017-Ohio-695.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
CRYSTAL SCHUTZ, nka MILLER :
:
Plaintiff-Appellant : Appellate Case No. 2016-CA-6
:
v. : Trial Court Case No. 10DIS857
:
ASHLEY SCHUTZ : (Appeal from Domestic Relations
: Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 24th day of February, 2017.
...........
CRYSTAL SCHUTZ, nka MILLER, 1417 East Market Street, Logansport, Indiana 46947
Plaintiff-Appellant-Pro Se
JEREMY M. TOMB, Atty. Reg. No. 0079554, 124 West Main Street, Troy, Ohio 45373
Attorney for Defendant-Appellee
.............
WELBAUM, J.
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{¶ 1} This case involves a pro se appeal from an order finding Appellant, Crystal
Schutz nka Miller (“Crystal”) in contempt and changing custody of the parties’ two minor
children, A.S. and E.S. from Crystal to Appellee, Ashley Schutz.1
{¶ 2} In support of her appeal, Crystal contends that the trial court abused its
discretion by finding a change of custody was in the children’s best interests and by
accepting the testimony and report of the Guardian ad Litem (“GAL”) when the GAL’s
report fell below minimum standards in Sup.R. 48(D)(13). In addition, Crystal argues
that the trial court erred by failing to find Ashley in contempt, by finding her in contempt,
and by ignoring the testimony of Crystal’s expert witness. Finally, Crystal contends that
the trial court erred by imputing income to her for purposes of child support and with
respect to interim orders that it entered.
{¶ 3} After reviewing the record, including the transcript of the two-day evidentiary
hearing, we conclude that Crystal’s assignments of error are without merit. Accordingly,
the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} The parties to this case separated in March 2010, and their divorce decree
was granted in January 2011. While the divorce was pending, Ashley and Crystal
parented the children on an equal-time basis. The separation agreement, which was
incorporated in the final decree, designated Crystal as legal custodian and residential
1 For convenience, we will refer to the parties by their first names, and for privacy will
refer to the parties’ minor sons by their initials.
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parent, but awarded no child support due to the fact that the parties were equally sharing
the children’s care. The agreement further provided that each party was entitled to
complete information/records from doctors and other providers, and to complete
information from any teachers, school officials and copies of all reports pertaining to the
children. Each party was also required to keep the other fully advised of all school
events/activities. At the time, both parties were residing in the same area, but the decree
also stated that if Crystal relocated outside Versailles, Ashley would be entitled to the
Darke County Standard Order of Visitation.
{¶ 5} The agreement also provided that the parties would discuss and cooperate
on matters relating to their children’s welfare, health, and education, “realizing that their
general welfare is of paramount importance. To that end, each party will encourage the
other to respect, honor, and love the other party.” Doc. #3, Separation Agreement, p.3.
{¶ 6} Crystal remarried about a month after the divorce decree was entered, and
then filed a notice of intent to relocate to Union, Indiana, in March 2011, based on her
new husband’s employment. This initial move was about an hour away from Ashley.
{¶ 7} In October 2012, Crystal filed another notice of intent to relocate to
Logansport, Indiana, again based on her husband’s employment. Shortly thereafter,
Ashley filed a motion for reallocation of parental rights and for temporary and permanent
custody of the children. The motion alleged that due to the distance, Ashley was unable
to exercise parenting time without a six-hour roundtrip with the children. There were also
concerns about Crystal’s removal of the children from school. The motion further alleged
that after Ashley had learned about the removal, he had convinced Crystal to place A.S.
back in public school. However, she refused to enroll E.S. in public school. At the time,
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the children were ages six and five, respectively.2
{¶ 8} Ashley expressed concern about E.S’s ability to develop social skills, and
about whether E.S. was receiving physical therapy, occupational therapy, and speech
therapy. In addition, Crystal allegedly had refused to provide Ashley with information
about the children’s schools, academic progress, or pediatric appointments.
{¶ 9} In July 2013, the parties filed an agreed entry maintaining Crystal as
residential parent and legal custodian. During the school year, Ashley was to have
parenting time pursuant to the county’s standard schedule, and during the summer, the
parties would exercise parenting on alternating weeks. Ashley was also ordered to pay
child support. The entry further provided that all prior orders would remain in effect
unless otherwise modified.
{¶ 10} Subsequently, on March 20, 2015, Ashley filed a motion for contempt
against Crystal, alleging that she had interfered with his visitation and had alienated his
parenting time without his consent. The same day, Ashley filed a motion for custody or
in the alternative, a motion to modify parenting time. In the motion, Ashley alleged that
the children were being home-schooled and that it was in their best interest to receive
educational training by professionally trained and certified educators, particularly since
E.S. had special needs. Ashley further alleged that E.S.’s therapy was currently
unknown, that he had reason to believe the children were not getting the care and
attention they needed, and that Crystal had been unilaterally altering his parenting time.
{¶ 11} The trial court set a hearing on the contempt motion and appointed the
2 A.S. was born in December 2007, and E.S. was born in June 2007. E.S. had been
diagnosed with autism.
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same GAL who had been appointed in connection with the parenting motion filed in 2012.
In July 2015, Crystal filed a motion to increase child support, and for contempt, based on
Ashley’s alleged failure to reimburse her for expenses. The trial court set a hearing for
October 13, 2015, and, after taking testimony, continued the hearing to November 2,
2015, where additional testimony was received. At the hearings, the magistrate heard
testimony from the following witnesses: Crystal; Cary Miller (Crystal’s husband); Ashley;
Danielle Schutz (Ashley’s wife); Melissa Johnson, the director of Engaging Minds (a
therapy center E.S. attended); and Camille Harlan, the GAL (who recommended that
custody of the children be granted to Ashley).
{¶ 12} In December 2015, the magistrate issued a decision and order
recommending that custody be changed to Ashley. Among other things, the magistrate
found that Crystal had not encouraged Ashley’s relationship with the children and had not
provided Ashley with basic information he needed as a parent, such as her decision to
home-school them and to change E.S.’s therapy providers without telling Ashley. The
magistrate additionally found that Crystal had failed to provide information to Ashley about
therapy so that both homes provided similar environments for E.S., and that this was not
in E.S’s best interest. Furthermore, the magistrate concluded that the children had not
adjusted to their school or community, were isolated in their mother’s home, and that all
their extended family (maternal and paternal) resided in Ohio.
{¶ 13} The magistrate also found Crystal in contempt for failure to permit parenting
time as ordered, but ordered no sanctions. Finally, the magistrate overruled Crystal’s
contempt motion.
{¶ 14} Crystal filed objections to the magistrate’s decision, and filed supplemental
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objections after the transcript was filed in May 2016. In the meantime, on February 2,
2016, the trial court granted Ashley’s motion to implement the magistrate’s order on an
interim basis. The trial court concluded that effective February 5, 2016, Ashley would be
designated as the residential and custodial parent. Ashley was directed to promptly
enroll the children in a traditional school setting and notify Crystal. He was also ordered
to promptly arrange for therapy as recommended by the school and other therapists, and
to notify Crystal. Crystal was given standard parenting time with certain extended
intervals in the summer, and was designated as the child support obligor. The parties
were also ordered to sign up for the Family Wizard software.
{¶ 15} On March 28, 2016, Crystal filed a motion to vacate the interim order, based
on the contention that it had expired. The trial court overruled the motion in April 2016,
stating that the court had anticipated the objection process would be completed more
expeditiously and had inadvertently not extended the interim order after 28 days. The
court concluded that it was not in the children’s interest to be moved back and forth
between their parents’ homes multiple times while objections were pending, and imposed
the same order as before. The court again extended the same order on its own motion
in May 2016.
{¶ 16} On June 28, 2016, the trial court overruled Crystal’s objections to the
magistrate’s decision, and adopted the magistrate’s decision as its order. Crystal then
appealed, pro se, from the trial court’s decision.
II. Change of Circumstances
{¶ 17} Crystal’s First Assignment of Error states that:
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The Trial Court Erred and Abused Its Power in Finding a Change of
Circumstance Warranting a Reallocation of Custody and Determining It Is
in the Best Interest of the Minor Children that Defendant Be Awarded
Custody.
{¶ 18} Under this assignment of error, Crystal contends that there was no change
of substance that would merit alteration of custody. As pertinent to this case, R.C.
3109.04(E)(1)(a) provides that:
The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on facts
that have arisen since the prior decree or that were unknown to the court at
the time of the prior decree, that a change has occurred in the
circumstances of the child, the child's residential parent, or either of the
parents subject to a shared parenting decree, and that the modification is
necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the
prior decree or the prior shared parenting decree, unless a modification is
in the best interest of the child and one of the following applies:
***
(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.
{¶ 19} The Supreme Court of Ohio has said that a substantial change of
circumstance is not required under this statute. Instead, “there must be a change of
circumstances to warrant a change of custody, and the change must be a change of
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substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St. 3d
415, 418, 674 N.E.2d 1159 (1997). The court further stressed that “[i]n determining
whether a ‘change’ has occurred, we are mindful that custody issues are some of the
most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge
must have wide latitude in considering all the evidence before him or her * * * and such a
decision must not be reversed absent an abuse of discretion.” (Citation omitted.) Id.
{¶ 20} “An abuse of discretion means that the trial court's decision is
unreasonable, arbitrary or unconscionable.” Miller v. Remusat, 2d Dist. Miami No. 07-
CA-20, 2008-Ohio-2558, ¶ 32, citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983).
{¶ 21} In reviewing trial court decisions, appellate courts must also give deference
to a trial court’s findings, because “ ‘the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.’ ” Davis at 418, quoting Seasons Coal
Co. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 22} Crystal argues that no change of substance occurred because the children
performed academically, were happy, maintained good relationships with siblings, and
had good relationships with their parents. The magistrate and trial court found a change
of circumstances based on the children’s change from public schooling to home
schooling; the change in E.S.’s autism counseling; A.S.’s changing mental health issues
and socialization circumstances; and “continuing and increasing relationship difficulties
between the parties which frustrate effective parenting.” Judgment Entry – Plaintiff’s
Objections to Magistrate’s Decision, Doc. #132, pp. 2-3. There is more than ample
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evidence in the record to support the trial court’s decision.
{¶ 23} When the parties were divorced in 2011, parenting time was on an
essentially equal distribution, but this was disrupted by Crystal’s move to Indiana. After
Crystal moved, a pattern of lack of communication and unilateral decision-making on her
part developed. When Ashley filed a motion about these matters in 2012, the GAL (who
was the same one appointed for the 2015 motion) recommended that the children
continue to stay with Crystal. The GAL testified at the 2015 hearing that her prior
recommendation was based on the fact that Crystal had recently moved to Logansport,
Indiana, had enrolled A.S. in public school, and was going to enroll E.S. in public school
when he was eligible. In addition, E.S. had not previously had therapy for his autism,
and had just begun therapy three days a week at Hopebridge. This was a provider
recommended by the Riley Child Development Center, Indiana University Hospitals,
where E.S. was evaluated and diagnosed as having an autistic spectrum disorder in
November 2012. Hopebridge was fully paid for through insurance and Medicaid.
{¶ 24} Consistent with the GAL’s recommendation, an agreed entry was filed in
July 2013 designating Crystal as the residential parent and legal custodian, and providing
Ashley with the county’s standard order of parenting time during the school year. After
that time, Crystal made many decisions that detrimentally affected the children without
consulting or even notifying Ashley, and the lack of communication about the children’s
educational and medical situations exacerbated. As one example, after the 2013
proceedings, Ashley agreed to follow a gluten-free, casein-free, no sugar, no red dye diet
for E.S. if he could speak to E.S.’s doctor. E.S. had been placed on this diet without
Ashley’s knowledge or consent. At the meeting with the doctor, Crystal became upset,
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called Ashley a “sperm donor,” and flipped him off. These actions took place while E.S.
and A.S. were present. Crystal also admitted that she may have called Ashley a “jerk”
at times in front of her children, although she said she did not “routinely” do so. In
addition, Crystal reported Ashley’s employer to the Better Business Bureau after a delay
in processing a child support payment, and this caused him problems at work.
{¶ 25} Furthermore, Crystal removed A.S. and E.S. from public school and placed
them in an online public school program that was conducted at home. Again, this
decision was made without Ashley’s knowledge or consent. The GAL noted that this
was done primarily to accommodate E.S.’s therapy and Crystal’s schedule. According
to the GAL, Crystal told her that she was overwhelmed by having A.S. in a regular public
school, by having E.S. on a split schedule between public school and therapy, and by
having two younger children, all with no support system.
{¶ 26} The GAL’s statements were buttressed by Crystal’s testimony, which
indicated that, prior to Crystal’s decision to begin home schooling, E.S. had begun public
school (in a brick and mortar setting), and was doing fine in school. At that time, Crystal
would send A.S. and E.S. to public school on the bus at 7:00 a.m. She would then pick
up E.S. at 11:00 a.m. to take him to Hopebridge, which was a half hour away, for therapy.
She would wait for E.S. to finish therapy and rush back to beat the bus home for A.S.
Crystal had two other small children from her second husband (a daughter born in
November 2011 and a son born in February 2014), who had to be transported to these
sessions. Crystal had no family support in the area.3
3 Both the paternal and maternal grandparents, as well as most other family relatives, live
in the area where Ashley lives, which is about three hours away from Crystal’s home in
Indiana.
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{¶ 27} In December 2014, Crystal also switched E.S. from Hopebridge to another
therapy provider, Engaging Minds (“EM”). EM was a facility that was not fully covered
by insurance and did not qualify for reimbursement from Medicaid. Crystal did not
discuss the change in providers with Ashley, nor did she notify him that it had occurred.
{¶ 28} Any information that Ashley was able to obtain about the children’s
schooling or medical situations required a process of applying to court for subpoenas or
learning after the fact about events from his children. For example, A.S. received a
severe burn while making breakfast for the children while Crystal was sleeping. Crystal
did not notify Ashley about this; he only learned of it when A.S. came for parenting time
and was panicked because he had forgotten his burn cream.
{¶ 29} The following exchange describes Crystal’s attitude toward providing
Ashley with any information about their children:
Q. Okay. Do you think that it’s in your children’s best interest for
you to forward information about their treatment and their education to their
father?
A. I believe I already answered that.
Q. What’s your answer.
A. My answer is that if he wants the information, he should obtain
it.
Q. Here’s where our disconnect is. The disconnect is I’m not
asking anything about your personal relationship. This Court is going to
make a decision solely based upon the best interest of your children not
based upon your communications, not based upon what he should do or
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what you should do.
So what I’m asking is in the best interest of your children, do you not
think that it would be beneficial for you to send that information to Ashley?
A. I don’t have an opinion one way or the other.
Transcript of Proceedings, Vol. II, p. 442.
{¶ 30} The record further indicates that the children were isolated in Crystal’s
home, were not enrolled in extra-curricular activities, and did not have friends with whom
they interacted at home. The GAL was particularly concerned about their isolation and
lack of socialization. Accordingly, the trial court’s finding of a change in circumstances
is supported by a great deal of evidence, as well as by the recommendation of the GAL,
who concluded that Ashley should have custody of the children.
{¶ 31} Under this assignment of error, Crystal further contends that even if the
“best interests” test in R.C. 3109.04(F) applies due to a finding of a change of
circumstances, the trial court erred by failing to consider the children’s relationship with
their half-siblings and the fact that Ashley was allegedly $1,800 in arrears in child support
when he filed the motion for custody in March 2015. Additionally, Crystal argues that the
trial court had no evidence that Ashley was the parent more likely to facilitate support,
and that the court’s finding that she was inconsistent and unreliable in medical decisions
was against the manifest weight of the evidence. Crystal further argues that the trial
court was precluded from considering her refusal to vaccinate E.S. and her two younger
children (and thereby exposing them to multiple childhood illnesses) because it was a
religious decision.
{¶ 32} As was noted, R.C. 3109.04(E)(1)(a) requires trial courts to find that
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modification of a prior decree allocating parental rights and responsibilities “is necessary
to serve the best interests of the child.” R.C. 3109.04(F) states that in determining the
best interest of a child, “the court shall consider all relevant factors, including but not
limited to” various factors set out in R.C. 3109.04(F)(1)(a)-(j). The factors potentially
pertinent to this case include:
(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;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent pursuant
to a child support order under which that parent is an obligor;
***
(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;
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(j) Whether either parent has established a residence, or is planning
to establish a residence, outside this state.
{¶ 33} In its decision, the trial court placed particular reliance on R.C.
3109.04(F)(1)(c), (d), and (f), noting that “the transcript is telling regarding the Plaintiff’s
frequent frustration of the Defendant’s parenting time and his relationship with the
children, such as (1) failing to honor parenting time orders; (2) failing to communicate the
children’s circumstances regarding school and counseling; and (3) unilateral decision-
making that reduced the Defendant’s ability to support and assist the children.”
Judgment Entry – Plaintiff’s Objections to Magistrate’s Decision, Doc. #132, p. 3. The
court also observed that Crystal had inconsistent medication and decision-making
processes. Id. There is substantial evidence in the record supporting these findings.
{¶ 34} R.C. 3109.04(F)(1)(c) pertains to interaction with parents, siblings, and
others who may affect the child’s best interests. The trial court did not specifically
mention the half-siblings, but the court was not required to explicitly detail a long list of
persons who may or may not interact with the children and address each one. The court
placed particular emphasis on the relationship of the children with their father, which
Crystal had attempted to hinder. Furthermore, the record indicates that Crystal and her
husband argue in front of the children and that this was a stressor for A.S., who brought
it up during a counseling session; that Ashley and his wife do not argue in front of the
children; that A.S. had expressed the belief that his younger sister received preferential
treatment in his mother’s home; that A.S. had expressed concern during counseling about
his stepfather’s anger; that there are no family members near Crystal; and that there are
numerous family members, both paternal and maternal, in the area where Ashley lives.
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Accordingly, the trial court’s decision that modification of custody is in the best interests
of the children is supported by more than ample evidence.
{¶ 35} In addition, the GAL noted that she had observed the children in both homes
and that there was a significant difference in how E.S. acted at Ashley’s home as opposed
to Crystal’s home. At Ashley’s home, E.S. showed a dramatic improvement in his play,
eye contact, and ability to communicate over when she had previously observed him.
Conversely, at Crystal’s home, E.S. displayed arm-flapping, lack of attention span, and
lack of eye contact. The difference was so marked that the GAL asked the court for a
continuance so she could again observe E.S. at his father’s house. During this visit,
which was much longer than the first visit to Ashley’s home, the GAL’s observations
confirmed what she had previously seen, i.e., that E.S. showed a dramatic improvement
at his father’s house, but not at his mother’s house.
{¶ 36} As to alleged child support arrearages or motions filed to that effect, the
record does not indicate any arrearages, and Crystal did not raise this issue at trial or in
objecting to the magistrate’s decision. With respect to issues about which parent is more
likely to facilitate visitation, the record is clear that Ashley was the parent who was more
likely to do so.
{¶ 37} Finally, Crystal contends that the trial court’s judgment was improperly
based on her refusal to vaccinate the children for religious reasons. As Crystal notes,
the Supreme Court of Ohio has issued a decision regarding a domestic relations court’s
consideration of religious doctrine. In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E.2d 794
(1992), the court said that “a domestic relations court may consider the religious practices
of the parents in order to protect the best interests of a child.” Id. at 395, citing Birch v.
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Birch, 11 Ohio St. 3d 85, 463 N.E.2d 1254 (1984). However, the court also stressed that
“the United States Constitution flatly prohibits a trial court from ever evaluating the merits
of religious doctrine or defining the contents of that doctrine.” (Citation omitted.) The
court, therefore, reversed a custody award that was based solely on a parent’s religious
beliefs. Id. at 395-396.
{¶ 38} The case before us does not involve such a situation. In Pater, the
mother’s religious practices were “the major issue” in the case. Id. at 393. In fact, the
trial court refused to allow the mother visitation rights if she were “going to teach the child
her religion [Jehovah’s Witnesses] or take the child to Kingdom Hall.” Id. at 395.
{¶ 39} In contrast to Pater, the trial court did not even mention the vaccination
issue in its decision. Furthermore, while the magistrate mentioned that Ashley was
concerned about the lack of vaccinations for E.S. and Crystal’s younger children, the
magistrate did not base her decision on this point. As was noted, Crystal’s actions
regarding medications were inconsistent, and any comments on this in the magistrate’s
decision were simply a recounting of the testimony and perhaps an indication of lack of
credibility – or inconsistency in medical decisions, not a ruling on religious preferences.
{¶ 40} Based on the preceding discussion, the First Assignment of Error is
overruled.
III. Alleged Error Regarding GAL
{¶ 41} Crystal’s Second Assignment of Error states that:
The Magistrate Erred and Abused Its Power by Accepting the
Testimony of Guardian Ad Litem and Adopting the GAL’s
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Recommendations as the Magistrate’s Order, as the Report Fell Far Below
the Minimum Standards Outlined in Sup.R. 48(D)(13).
{¶ 42} Under this assignment of error, Crystal argues that the GAL failed to comply
with Sup.R. 48(D)(13) by not meeting with Crystal and the children at Crystal’s residence;
by failing to contact school providers and therapists; and by failing to recommend testing
that night be necessary. Crystal also argues that the GAL was biased.
{¶ 43} Crystal did not object at trial to the GAL’s testimony, nor did she object to
the GAL’s alleged failure to comply with Sup.R. 48(D)(13) in her original or supplemental
objections to the magistrate’s decision.
{¶ 44} Civ.R. 53(D)(3)(b)(iv) states that “[e]xcept for a claim of plain error, a party
shall not assign as error on appeal the court's adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of fact or conclusion of law
under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Civ.R. 53(D)(3)(b).” In such situations, we review for plain error only. Crain
v. Crain, 2d Dist. Clark No. 2011-CA-92, 2012-Ohio-6180, ¶ 15. “The plain error doctrine
permits correction of judicial proceedings when error is clearly apparent on the face of the
record and is prejudicial to the appellant.” (Citation omitted.) Reichert v. Ingersoll, 18
Ohio St. 3d 220, 223, 480 N.E.2d 802 (1985). Accord In re C.N., 2d Dist. Montgomery
No. 27119, 2016-Ohio-7322, ¶ 55. However, use of this doctrine “is to be taken with
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Reichert at 223, citing State v. Long, 53 Ohio St. 2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 45} On review of the record, we find no error on the face of the record, nor do
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we find any exceptional circumstances. Contrary to Crystal’s contention, the GAL did
observe the children at Crystal’s home. In addition, the GAL visited Ashley’s home twice
only to verify the dramatic difference between E.S. at the two residences. The GAL also
was the same guardian ad litem who had previously recommended that custody be
maintained with Crystal for stability purposes when the children were enrolled in a
traditional public school. No bias appears in the record. Furthermore, even if the GAL
failed to meet and interview school personnel or medical and mental health providers as
indicated by Sup.R. 48(D)(13)(g), the rule states that the GAL is to do the matters outlined
in the rule “unless impracticable or inadvisable because of the age of the child or the
specific circumstances of a particular case * * *.” (Emphasis added.)
{¶ 46} In this case, the children’s providers were located approximately three hours
away from the court and the GAL, which would require a six-hour roundtrip for the GAL.
The GAL stated that she followed the procedures she normally does in any case, although
there was a little more involved in this case. In addition to the home visits, the GAL
reviewed the records provided by the attorneys, which included all discovery exchanged.
Moreover, the GAL sat in for the deposition of Melissa Johnson, E.S.’s behavioral
therapist from E M, and also sat through two days of trial, after which the GAL indicated
that her opinion as to appropriate custody of the children (with Ashley) had not changed.
The GAL’s testimony showed a high level of knowledge about the case, and we find no
exceptional circumstances or manifest injustice warranting the application of the plain
error doctrine. In fact, we find no error.
{¶ 47} Accordingly, the Second Assignment of Error is overruled.
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IV. Contempt Finding Against Crystal
{¶ 48} For purposes of convenience, we will address the Fourth Assignment out of
order. This assignment of error provides that:
The Trial Court Erred and Abused Its Power in Finding the Plaintiff in
Contempt for Violation of Orders Involving Parenting Time.
{¶ 49} Under this assignment of error, Crystal contends that the trial court’s finding
of contempt was an abuse of discretion because only one parenting time violation
occurred, and she did not willfully violate the court’s orders regarding parenting time.
{¶ 50} 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.
{¶ 51} “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 Ohio Op. 361, 120 N.E.2d 118.” (Citations
omitted.) Moraine v. Steger Motors, Inc., 111 Ohio App. 3d 265, 268, 675 N.E.2d 1345
(2d Dist.1996).
{¶ 52} 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
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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.
{¶ 53} After reviewing the record, we find that the trial court did not abuse its
discretion in finding Crystal in contempt. Crystal’s own testimony indicates that she
made a unilateral decision to deprive Ashley of visitation and failed to communicate with
him prior to making her decision to remove the children from the area. Crystal also failed
to return Ashley’s calls about the missed parenting time and did not permit him any
communication with the minor children during the time he was supposed to have them.
Crystal may have thought her reasons were justified, but as with many other situations,
this was not her unilateral decision to make. Ashley was available and could have taken
care of the children. In fact, this would have assisted Crystal and the children. Instead
of being with Ashley, the children were required, along with their younger brother and
sister, to travel several hours so that Crystal could care for her brother.
{¶ 54} As the trial court noted, “the transcript is telling regarding the Plaintiff’s
frequent frustration of the Defendant’s parenting time and his relationship with the children
* * *.” Judgment Entry – Plaintiff’s Objections to Magistrate’s Decision, Doc. #132, p. 3.
The denial for which Crystal was held in contempt is just one example of her unilateral
and arbitrary decision-making regarding the children. In addition, no sanction was
imposed against Crystal for the contempt.
{¶ 55} “We have previously emphasized, and stress once again, that children have
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certain rights, including ‘ “the right to love each parent, without feeling guilt, pressure, or
rejection; the right not to choose sides; the right to have a positive and constructive on-
going relationship with each parent; and most important * * * the right to not participate in
the painful games parents play to hurt each other or to be put in the middle of their
battles.” ’ ” Bell v. Bell, 2d Dist. Clark No. 97-CA-105, 1998 WL 288945, *1 (June 5,
1998), quoting Thomas v. Freeland, 2d Dist. Greene No. 97-CA-06, 1997 WL 624331,*3
(Oct. 10, 1997).
{¶ 56} Accordingly, the Fourth Assignment of Error is overruled.
V. Alleged Error in Failing to Find Ashley in Contempt.
{¶ 57} Crystal’s Third Assignment of Error states that:
The Trial Court Erred and Abused Its Power by Failing to Find the
Defendant in Contempt for Unpaid Medical Bills, Failure to Cooperate on
Matters Relating to the Children’s Welfare, Health, and Education, and Not
Taking the Minor Child, [E.S.], to Therapy.
{¶ 58} Under this assignment of error, Crystal contends that the trial court abused
its discretion by failing to find Ashley in contempt for failing to pay for therapy bills, for
failing to take E.S. to therapy as required, and for failing to follow doctor’s orders regarding
diet and medication administration.
{¶ 59} Again, we apply the standards recited above regarding contempt, including
that we review the trial court’s decision for abuse of discretion. Based on our review of
the record, this assignment of error has no merit. More importantly, the magistrate found
that Crystal did not come to court with clean hands. We agree.
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{¶ 60} We have noted that “ ‘[t]he clean hands doctrine is not a stranger in
domestic relations.’ ” (Citation omitted.) Gambill v. Gambill, 2d Dist. Miami No. 89-CA-
70, 1991 WL 10958, *2 (Jan. 31, 1991). “The unclean hands doctrine generally provides
that when a party takes the initiative to set in motion a judicial action in order to obtain
some remedy, the court will deny the remedy where the party seeking it has acted in bad
faith by his or her prior conduct.” (Citation omitted.) Gardner v. Bisciotti, 10th Dist.
Franklin No. 10AP-375, 2010-Ohio-5875, ¶ 15.
{¶ 61} As was noted, Crystal made many unilateral and arbitrary decisions about
the children without notifying Ashley or providing him an opportunity to express a position.
Crystal also attempted to obstruct Ashley’s access to information about the children, to
the point that he had to subpoena documents to find out anything.
{¶ 62} Crystal’s testimony at the hearing indicated that she had not yet paid any
therapy bills from EM, and there was a question whether payment would even be
required. Additionally, she unilaterally chose this provider, who was not covered by
Medicaid, without any input from Ashley. Crystal’s testimony also indicates that due to
issues with the therapy providers (not with Ashley’s willingness to schedule), compliance
with scheduling therapy in Ohio was impossible prior to the time that Ashley was given
custody. Basically, the Indiana and Ohio providers would not provide therapy if another
therapy provider was involved, and the Indiana therapist was the first one to render
services to E.S.
{¶ 63} Finally, with respect to diet and medication, the evidence indicated that
Crystal chose to place the children on a gluten-free, sugar-free diet, again without
consulting Ashley or without having medical indications that this was necessary. In
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addition, the undisputed testimony was that Crystal was not following the diet, having
permitted E.S. to eat candy, and A.S. to drink soda while in her care.
{¶ 64} It is true that Ashley had reservations about giving A.S. Strattera medication
for A.S.’s alleged ADHD. However, the GAL testified that she could find no evidence in
the record of a therapist having diagnosed A.S. with ADHD. The GAL recommended
that comprehensive testing should be done to verify what appeared to have been
Crystal’s own self-diagnosis of a condition that Ashley disputed. Again, Crystal’s choice
to keep Ashley in ignorance of the children’s medical providers and records was a
preceding factor. Ashley and his wife (who is a registered nurse), both testified that they
did not observe any signs of ADHD in A.S., and that they were reluctant to administer a
medication that appeared to cause seizures. Ashley also asked for a neurological
examination to verify a diagnosis, and Crystal had not complied with this request as of
trial. These concerns are documented in the record, and the trial court could properly
choose which party’s testimony to credit.
{¶ 65} In this context, we note Crystal’s recitation of the magistrate’s finding that
the parties’ separation agreement provided that they were to discuss and cooperate on
all matters relating to their children’s welfare, health, and education. Brief of Appellant,
p. 11. According to Crystal, “[a]s the appellant [Crystal] was the custodial parent, this
afforded her the rights to make the medical and educational decisions. The appellee
[Ashley] had no choice but to then cooperate on all matters per the agreement.” Id.
{¶ 66} This is an incorrect interpretation of the agreement. The agreement does
not give the residential and custodial parent the right to make unilateral decisions about
a child and then hold the other parent in contempt when that parent happens to disagree.
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A requirement to “discuss” is the antithesis of unilateral decision-making. “To cooperate
means ‘to act or work with another or others; to associate with another or others for mutual
benefit.’ ” Wiseman v. Wiseman, 9th Dist. Medina No. 13CA0009-M, 2014-Ohio-2002,
¶19, quoting Merriam–Webster's Collegiate Dictionary 275 (11th Ed.2003).
“[C]ooperation is a two-way street designed to arrive at a place that benefits both parties,
not merely one party at any cost to the other.” Id.
{¶ 67} Having failed to involve Ashley in any decision-making regarding the
children, Crystal does not come to court with “clean hands” to request that he be held in
contempt for his disagreement with her decisions.
{¶ 68} Accordingly, the trial court did not err in refusing to find Ashley in contempt,
and the Third Assignment of Error is overruled.
VI. Expert Testimony
{¶ 69} Crystal’s Fifth Assignment of Error states that:
The Trial Court Erred and Abused Its Power by Ignoring the
Testimony of the Expert Witness.
{¶ 70} Under this assignment of error, Crystal contends that the trial court erred in
failing to credit the testimony of her expert, Melissa Johnson, who had concerns about
E.S.’s participation in a traditional school environment. According to Crystal, the court
further erred in requiring the children to be enrolled in a traditional brick and mortar school
without considering Johnson’s testimony or without having any evidence that the change
to home-schooling was detrimental.
{¶ 71} Based on our discussion of the other assignments of error, there was ample
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evidence that the change to online home schooling was detrimental to the children.
Crystal testified that E.S. (the child with autism) had been enrolled in public school and
that he was doing fine there before she chose to remove him and A.S. to a home-school
environment. The change was made primarily to accommodate Crystal’s schedule and
to accommodate E.S.’s therapy schedule. Despite Crystal’s refusal to acknowledge that
A.S.’s grades suffered after he was removed from public school, a fair reading of the
evidence in the record indicates that his grades worsened. In addition, both boys were
isolated in their mother’s home, and the GAL expressed concern about their socialization
and how it was being stunted by the lack of socialization.
{¶ 72} Notably, the credibility of expert witnesses and the weight to be given to
their testimony are matters “for the trial court, as the trier of fact, to determine.” Vance
v. Vance, 151 Ohio App. 3d 391, 2003-Ohio-310, 784 N.E.2d 172, ¶ 100 (2d Dist.), citing
State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967). After considering the
record, we find nothing improper in the trial court’s decision.
{¶ 73} Melissa Johnson was certified in applied behavioral analysis (“ABA”), which
is a widely accepted technique used in dealing with individuals with autism. Johnson
acknowledged in her testimony that her certification and ABA were not education-related,
that she had no educational background, and that she had no opinion as to whether home
school or public school would be the best place for E.S. Transcript of Proceedings, Vol.
II, p. 309. Johnson did say that she thought E.S. would struggle if he were in a public
school setting and was unassisted. She stressed that what was most important was that
E.S. continue to receive ABA therapy.
{¶ 74} The GAL, who had observed E.S. over a number of years, expressed
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confidence that E.S. could attend public school and be mainstreamed. She also stated
that the Ohio school system in which E.S. would be enrolled followed the same ABA
techniques for autism that E.S.’s private provider in Indiana did. Transcript, Vol. II, at pp.
464-470. According to the GAL, the school system in Ashley’s locale would do an IEP
for E.S. and then make recommendations for physical therapy, occupational therapy, and
speech therapy. E.S. would be in a general classroom for part of the day and would be
outside the classroom for his therapies. The GAL agreed that E.S. would probably not
be able to succeed in public school without assistance; the GAL stressed, however, that
the type of assistance that Johnson mentioned was provided by the public school district
in Ohio where E.S. would be enrolled if Ashley were given custody.
{¶ 75} In view of the above testimony, the trial court did not err by failing to rely on
the expert testimony. The court’s decision was consistent with the evidence, which
indicated that E.S. would benefit from the socialization of a general public school
classroom, while receiving the ABA therapy that he needed.
{¶ 76} Accordingly, the Fifth Assignment of Error is overruled.
VII. Imputation of Income
{¶ 77} Crystal’s Sixth Assignment of Error states that:
The Trial Court Erred and Abused Its Power by Imputing Income to
the Plaintiff for Purposes of Calculating Child Support and Requiring Plaintiff
to Pay Child Support and by Not Using the Actual Income of the Defendant.
{¶ 78} Under this assignment of error, Crystal argues that the trial court erred in
imputing income to her because she allegedly submitted an affidavit indicating that she
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was receiving means-tested income. Crystal did not raise this issue in the trial court, and
again, we review only for plain error. Crain, 2d Dist. Clark No. 2011-CA-92, 2012-Ohio-
6180, at ¶ 15. As we noted, use of the plain error doctrine “is to be taken with utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Reichert, 18 Ohio St. 3d at 223, 480 N.E.2d 802.
{¶ 79} Our review of the record reveals no exceptional circumstances that would
warrant application of the plain error doctrine, nor have we found any error. In this
regard, R.C. 3119.05(I) provides that:
Unless it would be unjust or inappropriate and therefore not in the
best interests of the child, a court or agency shall not determine a parent to
be voluntarily unemployed or underemployed and shall not impute income
to that parent if either of the following conditions exist:
(1) The parent is receiving recurring monetary income from means-
tested public assistance benefits, including cash assistance payments
under the Ohio works first program established under Chapter 5107. of the
Revised Code, financial assistance under the disability financial assistance
program established under Chapter 5115. of the Revised Code,
supplemental security income, or means-tested veterans' benefits * * *.
{¶ 80} The record fails to indicate that Crystal has been receiving monetary
income from means-tested public assistance benefits or from any of the other programs
listed. Crystal did not mention this issue in the affidavit of income she filed when she
asked for an increase in child support, and the record indicates that her husband is
gainfully employed at an Indiana State hospital. Crystal had been previously employed,
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and there appears to be no reason why she could not work, other than her choice to stay
at home. Furthermore, Crystal’s husband testified that Crystal owns a property in
Versailles for which she receives rent. Although he claimed not to know the amount of
the rent, it is clear that Crystal receives some income from the rental, and again, no
evidence was submitted to indicate that she was receiving monetary income under any
programs mentioned in R.C. 3119.05(I). Given these facts, the trial court did not commit
plain error or any error in crediting Crystal with a minimal amount of income for child
support purposes. Specifically, Crystal was credited only with a minimum wage amount
and is paying only $210.30 total per month, plus 2% poundage, for her two children.
{¶ 81} Based on the preceding discussion, the Sixth Assignment of Error is
overruled.
VIII. Interim Orders
{¶ 82} Crystal’s Seventh Assignment of Error states that:
The Trial Court Erred and Abused Its Power by Extending the Interim
Order for an Indefinite Amount of Time After Its Expiration, Failing to Vacate
the Order and Issuing New Interim Orders Without Good Cause Shown.
{¶ 83} Under this assignment or error, Crystal contends that the trial court erred in
failing to comply with requirements for extending interim orders. In response, Ashley
argues that there may have been a technical violation, but that any technical delay is not
an abuse of discretion when the delay is caused by the complaining party’s failure to have
the transcript filed in the trial court. In addition, Ashley argues that once a final order is
entered, any error is harmless.
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{¶ 84} Civ.R. 53(D)(4)(e)(ii) provides that:
The court may enter an interim order on the basis of a magistrate's
decision without waiting for or ruling on timely objections by the parties
where immediate relief is justified. The timely filing of objections does not
stay the execution of an interim order, but an interim order shall not extend
more than twenty-eight days from the date of entry, subject to extension by
the court in increments of twenty-eight additional days for good cause
shown.
{¶ 85} The record indicates the delay in entering a second interim order was due
to the fact that the transcript was not filed as expeditiously as the trial court anticipated.
When the order’s expiration was brought to the court’s attention, it noted the delay, and
entered another order. Crystal did not thereafter object (the third interim order, which
the trial court entered on its own motion, was also entered more than 28 days after the
second order.)
{¶ 86} Courts have refused to address errors pertaining to the entry of interim
orders, finding any error moot, because such orders terminate when the trial court enters
final judgment. See Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736,
¶ 19; In re Guardianship of Smith, 2d Dist. Clark No. 2011-CA-09, 2011-Ohio-6496, ¶ 20;
Carter v. Carter, 3d Dist. Wyandot No. 16-99-02, 1999 WL 955909, *5 (Oct. 20, 1999).
We agree with the cited cases, and find that the Seventh Assignment of Error should be
overruled as moot.
IX. Conclusion
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{¶ 87} Six of Appellant’s assignments of error having been overruled, and the
Seventh Assignment of Error having been overruled as moot, the judgment of the trial
court is affirmed.
.............
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Crystal Miller
Jeremy M. Tomb
Hon. Jonathan P. Hein