Veach v. Adams , 2022 Ohio 4031 ( 2022 )

[Cite as Veach v. Adams, 2022-Ohio-4031.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TIFFANY L. VEACH, : APPEAL NO. C-220072
TRIAL NO. DR-1402299
Plaintiff-Appellee, :
vs. : O P I N I O N.
AARON J. ADAMS, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
The Lampe Law Office, LLC, and Vicki L. Richmond, for Plaintiff-Appellee,
Alex van der Zee, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Aaron J. Adams (“father”) appeals the judgment
of the Hamilton County Court of Common Pleas, Domestic Relations Division, which
modified the terms of his parenting time. Appellant’s appeal is focused on one
sentence of the court’s order that states, “No child shall be forced to attend parenting
time with Father and the Court will not entertain any motion for contempt for the
refusal of a child to attend parenting time when that child has vehemently protested
going to Father’s home.” For the reasons that follow, we affirm the judgment of the
trial court.
I. Factual and Procedural History
{¶2} The parties were divorced via a decree of divorce entered by the court
on July 29, 2016. Five children—O.A., C.A., I.A., M.A., and L.A.—were born issue of
the marriage.1 Plaintiff-appellee Tiffany L. Veach (“mother”) was designated the
residential parent and legal custodian of the children and an order was issued for
father to have parenting time. Mother filed a motion to modify or restrict father’s
parenting time on August 28, 2020, asserting that father was recently terminated from
his employment under allegations that were concerning. Father filed his own motion
to modify parenting time on January 4, 2022, asserting that mother had “blocked” his
parenting time on numerous occasions and requesting that the court order him more
time with the children. Father filed an amended motion the following day with no
relevant changes. A hearing was held on all motions on February 10, 2022.
{¶3} At the hearing, mother entered as evidence records from father’s
previous employer, Proclean, which asserted that father was fired for sexual
1O.A. reached 18 years of age during the pendency of this case and is therefore not the subject of
this appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
harassment of two minor employees and making inappropriate sexual comments to
other employees. Father testified that he was shocked when he saw these records as
he was only told that the owner wanted to part ways. Father denied that the allegations
in the records were true. The general manager of Proclean testified that father—who
was the regional manager at Proclean—would engage in “inappropriate talk” about sex
at work and said that father was fired after this was brought to the owner’s attention.
The general manager also testified that he distanced himself from father because
father’s behavior made him feel “sick and uncomfortable.” Father admitted in his
testimony that he was also fired from Amazon due to allegations of sexual harassment.
{¶4} Mother also entered as evidence a photo of a camera that was found in
the closet of M.A. and I.A.’s room at father’s house. Father testified that the camera
was removed about a year ago. He said that the camera was placed there to watch his
two-year-old daughter, who was born issue of his current marriage. He claimed that
he and his wife would place the two-year-old in the room with a baby gate across the
door and the camera would allow his wife to watch the child while he was at work. He
said that he only became aware that the camera made M.A. and I.A. (“the girls”)
uncomfortable when his attorney told him, and that is when he took the camera down.
He denied ever recording the girls in their bedroom or ever accessing the camera. He
testified that he also had a camera in the two-year-old’s room. Mother testified that
she found out about the camera from O.A.
{¶5} Both parties testified regarding an incident that occurred with M.A.
during father’s parenting time the weekend of February 12, 2021. Mother testified that
she texted father before his parenting time to let him know that M.A. was not feeling
well. Father testified that M.A. had a “slight fever” and he gave her medicine and
Gatorade to keep her hydrated. He said that M.A. was crying and said that she didn’t
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OHIO FIRST DISTRICT COURT OF APPEALS
feel well and her stomach hurt, so he gave her medicine and her stomach stopped
hurting. He claimed that it was “just like a typical flu,” and MA. was feeling better on
Sunday before she left. Mother testified that, when M.A. got out of the car at the
parenting exchange at the end of the weekend, M.A. looked pale and “so sick.” She
took M.A. to the emergency room and was told that M.A. was in “complicated shock.”
She said that M.A.’s blood pressure was extremely low and her heart rate was
extremely fast, and she was in so much pain from her stomach that the medical staff
gave her fentanyl several times. M.A. was in the hospital for four days and was
diagnosed with MIS-C, which is a condition that children develop after COVID that is
extremely rare but severe. Mother described this experience as having a traumatic
effect on all the children.
{¶6} Testimony was presented regarding the children’s behavior leading up
to and during parenting exchanges. Mother’s husband testified that the girls would
start “acting out” on the Thursday prior to their visits with father. He described “acting
out” as screaming, hollering, fighting and just “being bad” in general. He said that the
girls would fight and cry and “stuff like that” on the way to and from parenting
exchanges and said that it usually took them a few days to get back to normal. He
denied that C.A. or L.A. (“the boys”) acted any differently before father’s parenting
time. Mother testified that M.A. would cry and “go to herself,” while I.A. would be
kicking and screaming on the floor. She said that this behavior happened all the time,
but also said that the “crying and stuff” had “eased up” since I.A. had gotten older.
Regarding the boys, mother testified that they were “okay.” Father denied that the girls
ever made him aware that they did not want to come to his house and said that he only
heard about it from mother. He claimed that the girls told their mother one thing and
him another.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Mother testified that the girls’ changes in behavior, the camera in their
bedroom at father’s house, and the fact that father was terminated from his
employment for sexual harassment caused her to have a “bad feeling.” She said that
she just wanted the children to be safe and protected and said, “I think there’s a lot of
mental abuse happening, and I am concerned about the kids honestly.”
{¶8} Father testified that he did not believe that mother would follow any
“open-ended” parenting-time order and said that he felt like mother would not answer
his call or text him back if he asked for more time with the children. He submitted a
list of missed parenting-time dates where no make-up time was given or offered.
Mother agreed that father had missed those parenting times. She testified that one of
the times was when the girls were crying and screaming in the road at the parenting
exchange and M.A. “physically climbed in the back seat to hide,” so she did not send
the children to father’s house.
{¶9} After the hearing, the trial court entered a decision on February 11,
2022, granting all motions. The court expressly considered the factors under R.C.
3109.051(D) and ordered that there was to be no change in father’s parenting time
except for a few slight changes not relevant to this appeal. As stated above, this appeal
concerns one sentence of the court’s order that says, “No child shall be forced to attend
parenting time with Father and the Court will not entertain any motion for contempt
for the refusal of a child to attend parenting time when that child has vehemently
protested going to Father’s home.”
II. Law and Analysis
A. Discretion of a Child to Attend Parenting Time
{¶10} In his first assignment of error, father asserts that the trial court erred
by giving the children discretion not to attend parenting time. “We review the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court’s judgment on modifications to parenting time for an abuse of discretion.”
Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-
2398, ¶ 27, citing Souders v. Souders, 1st Dist. Hamilton No. C-210469, 2022-Ohio-
1953, ¶ 6. “An abuse of discretion ‘implies that the trial court’s decision was
unreasonable or arbitrary.’ ” Id. at ¶ 14, citing Kane v. Hardin, 1st Dist. Hamilton No.
C-180525, 2019-Ohio-4362, ¶ 6. The trial court has broad discretion in modifying
parenting time. Id. at ¶ 27, citing In re Ross, 154 Ohio App.3d 1, 2003-Ohio-4419, 796
N.E.2d 6, ¶ 5 (1st Dist.).
{¶11} Where one parent is the legal custodian of the children, modifications
to parenting time are governed by R.C. 3109.051. Id. at ¶ 28, citing Hartman v.
Hartman, 8th Dist. Cuyahoga No. 107251, 2019-Ohio-1637, ¶ 16, and Braatz v. Braatz,
85 Ohio St.3d 40, 43, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. “In
determining whether to modify parenting time, a change in circumstances is not
required.” Id. at ¶ 30, citing Braatz at paragraph two of the syllabus. “Rather, the court
must determine whether the modification is in the child’s best interest, considering
the best-interest factors set forth in R.C. 3109.051(D).” Id., citing Ross at ¶ 5. The best-
interest factors include, in relevant part, the prior interaction and interrelationships
of the child with the child’s parents, the age of the child, the health and safety of the
child, the mental and physical health of all parties, and any other factor in the best
interest of the child. R.C. 3109.051(D)(1), (4), (7), (9), (16). “Whenever possible, the
order or decree permitting the parenting time shall ensure the opportunity for both
parents to have frequent and continuing contact with the child, unless frequent and
continuing contact by either parent with the child would not be in the best interest of
the child.” R.C. 3109.051(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} “A trial court has the discretion to limit or restrict visitation rights.”
Hagan v. Hagan, 5th Dist. Delaware No. 18 CAF 03 0030, 2019-Ohio-51, ¶ 44, citing
Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239, 2000 Ohio App. LEXIS 2116,
*3 (May 12, 2000). “ ‘This includes the power to restrict the time and place of
visitation, to determine the conditions under which visitation will take place and to
deny visitation rights altogether if visitation would not be in the best interests of the
child.’ ” Id., quoting Janneti; accord Lumley v. Lumley, 10th Dist. Franklin No. 09AP-
556, 2009-Ohio-6992, ¶ 17. The best interest of the child is the paramount
consideration when granting visitation rights and a parent’s right to visit a child is
subservient to the welfare of the children. Id. at ¶ 49.
{¶13} “[A]n affirmative and independent decision by a child to not visit a
parent plays a pivotal role in whether the visitation should be compelled.” Id., citing
Smith v. Smith, 70 Ohio App.2d 87, 89-90, 434 N.E.2d 749 (10th Dist.1996). Courts
have upheld a trial court’s decision to allow parenting time to be at a child’s discretion
where the trial court’s determination that such discretion was in the best interest of
the child was supported by the record. See, e.g., Hagan at ¶ 46-47, 51; Wilson v.
Redmond, 12th Dist. Madison No. CA2003-09-033, 2004-Ohio-3910, ¶ 7-8, 12-13;
Kelley v. Kelley, 6th Dist. Wood No. WD-19-073, 2020-Ohio-1535, ¶ 42-43.
{¶14} Here, the trial court left participation in parenting time within the
discretion of each child only to the extent that no child would be forced to attend
parenting time. Father argues that the trial court’s order will allow mother to
manipulate the children into not exercising any parenting time with him. However,
such concerns are not supported by the record. The record shows that M.A. and I.A.
have a history of acting out in anticipation of their parenting time with father and, in
some circumstances, have even expressed their desire not to attend parenting time
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OHIO FIRST DISTRICT COURT OF APPEALS
with father by crying, screaming, lying on the ground, or hiding in mother’s car.
Notably, the protests from the children occurred on the way to the parenting exchange
or at the exchange. There was no evidence of any manipulation by mother to cause the
children to avoid parenting time. In fact, the evidence indicated that the protest
occurred while mother was trying to cause the children to attend parenting time. We
recognize that the evidence reflects that only the girls have protested parenting time.
However, the trial court’s order would only become relevant to the boys if they
exhibited similar protests to attending parenting time. When looking at what was in
the best interest of the children, the trial court expressly considered all the best-
interest factors and determined that it was in the best interest of the children not to be
forced to attend parenting time. Based on the evidence presented in this case, we
cannot say that such a determination was unreasonable or arbitrary. Therefore, we
hold that the trial court did not abuse its discretion in ordering that no child shall be
forced to attend parenting time, and we overrule this assignment of error.
B. Conduct Constituting Contempt
{¶15} In his second assignment of error, father asserts that the trial court
erred when it ordered that it would not entertain any motion for contempt for the
refusal of a child to attend parenting time. Father argues that the trial court’s order
prevents him from “exercising his right to hold mother in contempt for interfering with
his parenting time.” However, father’s reading of the court’s order is too broad. “The
trial court is empowered to ‘determine the kind and the character of conduct that
constitutes contempt.’ ” Bohannon, 1st Dist. Hamilton Nos. C-210316 and C-210332,
2022-Ohio-2398, at ¶ 47, quoting Fisher v. Fisher, 7th Dist. Harrison No. 17 HA 0008,
2018-Ohio-2477, ¶ 25. In essence, by saying that the court would not entertain a
motion for contempt in the narrow circumstance where a child had “vehemently”
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OHIO FIRST DISTRICT COURT OF APPEALS
protested attending parenting time, the court was establishing that mother’s conduct
in not forcing the child to attend under these circumstances would not constitute
contempt. Courts have upheld a trial court’s decision not to hold a residential parent
in contempt where, despite encouragement, a child of suitable age had refused to
engage in parenting time. See, e.g., K.M.M. v. A.J.T., 8th Dist. Cuyahoga No. 109815,
2021-Ohio-2452, ¶ 26-28.
{¶16} Based on the record, it is apparent that the court’s order was assuming
a situation in which a child’s protest was obvious, such as when M.A. was crying and
screaming and hiding in the back of the van to avoid going with father. If the children
exhibit this type of behavior at an exchange, there would be little question that the
children were “vehemently” protesting going with father. Therefore, the court’s order
would not encompass a situation such as the one father is envisioning where mother
manipulates the children into saying they did not want to attend parenting time.
Should father feel that mother is attempting to influence the children in this way,
nothing about the court’s order would prevent him filing a motion for contempt.
Therefore, we overrule this assignment of error.
IV. Conclusion
{¶17} Having overruled both assignments of error, we affirm the judgment of
the trial court.
Judgment affirmed.
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry this date.
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