In re G.M. ( 2017 )

[Cite as In re G.M., 2017-Ohio-8145.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
IN THE MATTER OF: G.M. : OPINION
:
CASE NO. 2016-T-0092
Appeal from the Trumbull County Court of Common Pleas, Juvenile Division, Case No.
2009 JP 00064.
Judgment: Affirmed.
Daniel G. Keating, Keating, Keating & Kuzman, 170 Monroe Street, N.W., Warren, OH
44483 (For Appellant).
Christopher A. Maruca, The Maruca Law Firm, LLC, 201 E. Commerce Street, Suite
#316, Youngstown, OH 44503 (For Appellee).
Roklyn M. DePerro Turner, 3685 Stutz Drive, Suite #100, Canfield, OH 44406
(Guardian ad litem).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Heather Morgan, appeals the trial court’s decision finding her in
contempt for failing to comply with the pending visitation order. She contends that, as a
result of her status as the custodial parent, she had the authority to change the visitation
schedule to conform to her child’s preschool schedule. We affirm.
{¶2} G.M. was born on February 5, 2009. Appellant is the child’s mother, and
appellee, Benjamin Ward, is her father.
{¶3} Early in the proceedings, the parties filed motions for the initial allocation
of parental rights, but were ultimately able to resolve all issues. In an agreed judgment
entry, appellant was designated as the child’s residential parent and legal custodian. As
to visitation, the parties agreed that, every other week, appellee would have G.M. from
Thursday at 6:00 p.m. through the following Tuesday at 3:30 p.m.
{¶4} In August 2013, appellant informed appellee that she would be enrolling
G.M. in a preschool program. According to appellant, G.M. needed preschool to
prepare her for kindergarten, improve her speech, and develop her social skills. She
also told appellee that, since G.M. would be attending preschool five days a week, it
would be necessary to alter his visitation to every other weekend. She asked him to
sign a modification, prepared by her attorney, acknowledging that he could no longer
have visitation on school days.
{¶5} Appellee refused to sign, arguing that G.M. did not need the preschool
program and his visitation rights should remain the same until she began kindergarten.
He went to appellant’s home on the first Thursday after Labor Day, expecting to pick up
G.M. for their five-day visit. Appellant and G.M. were not there and appellant did not
return any of his phone calls over the following days. He was unable to see G.M.
throughout the entire five-day period.
{¶6} Over the next three months, that pattern continued: appellee would try to
pick up G.M. every other Thursday, and appellant would refuse to allow visitation. Early
on, appellee motioned the trial court to find appellant in contempt for interfering with
visitation. He also moved for the reallocation of parental rights, requesting that he be
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named residential parent and legal custodian.
{¶7} The initial hearing on the motions was scheduled for October 30, 2013,
but due to service issues, postponed until December 17, 2013. On that date, a court
magistrate appointed a guardian ad litem to investigate the “parenting time” problems
and ordered the parties to follow the existing visitation order until a final ruling was
issued. In light of the latter order, appellant immediately moved the trial court to modify
appellee’s visitation so that G.M. could continue to attend preschool five days a week.
{¶8} An evidentiary hearing on the pending motions was held on February 5,
2015 and June 11, 2015. The magistrate also conducted an in camera interview of the
child on September 16, 2015. After receiving the final report of the guardian ad litem,
the magistrate rendered his decision on November 23, 2015, recommending that
appellee’s motion for contempt and reallocation be denied. The magistrate concluded,
however, that the child’s best interest dictated that appellee’s visitation rights be
modified so that, during the school year, he would have custody of her two weekends
each month.
{¶9} The same day, the trial court issued its judgment approving and adopting
the magistrate’s rulings. Two weeks later, appellee filed objections to the entire
decision. As to the contempt ruling, he asserted appellant’s testimony showed that she
violated the existing visitation order for a three-month period when she refused to permit
visitation as ordered. As to his reallocation request, he argued the evidence did not
support the magistrate’s finding that there had been no change of circumstances.
{¶10} After a transcript of the evidentiary hearing was filed, the trial court issued
a judgment overruling appellee’s objection concerning his request for reallocation of
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parental rights. However, as to contempt, the trial court found the objections to be well
taken, noting that appellant admitted during her testimony that she did not follow the
existing visitation order during the three-month period. This matter was therefore
remanded to the magistrate for further consideration.
{¶11} On remand, the matter went forward on the parties’ written briefs. The
magistrate found appellant in contempt as to visitation and imposed thirty days in the
county jail. The magistrate further ordered that appellant could purge and avoid jail
providing appellee with thirty-eight days of “make-up” visitation with the child.
{¶12} Appellant objected to the decision, contending that there could be no
finding of contempt when she offered to let appellee have visitation every other
weekend while G.M. was attending preschool, but he refused and demanded that the
existing visitation order be followed. In the appealed judgment, the trial court overruled
the objection, again found her in contempt, and approved the sanction recommended by
the magistrate.
{¶13} Appellant raises one assignment of error for review:
{¶14} “The trial court erred to the prejudice of appellant in finding her in
contempt of court.”
{¶15} Appellant does not contest that there was considerable evidence before
the magistrate showing that, after G.M. started preschool, she refused to permit
appellee to exercise his visitation rights under the existing order. Despite this, appellant
maintains she cannot be found guilty of contempt because, as the child’s residential
parent, she has sole authority to make decisions regarding the child’s schooling. She
also notes that she continued to give appellee the opportunity to have the child, but he
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who would not agree to alternative weekend visitation.
{¶16} “A court’s authority to punish a party for contempt for failure to comply with
a prior order derives from both the court’s inherent authority and from statutory
authority. Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870;
Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199. Contempt is a disregard of, or
disobedience to, the orders or commands of judicial authority. State v. Flinn (1982), 7
Ohio App.3d 294, 7 OBR 377, 455 N.E.2d 691. Indirect contempt may include the
disobedience of, or resistance to, a lawful order, judgment, or command of a court
officer. See R.C. 2705.02. Courts must make civil contempt findings based upon clear
and convincing evidence. ConTex, Inc. v. Consol. Technologies, Inc. (1988), 40 Ohio
App.3d 94, 531 N.E.2d 1353.” (Footnote omitted). Dozer v. Dozer, 88 Ohio App.3d
296, 302, 623 N.E.2d 1272 (4th Dist.1993).
{¶17} A finding of contempt must be made even if the party did not intentionally
disregard a court order; i.e., the fact that a party acted innocently is not a valid defense
to a contempt claim. Pugh v. Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085 (1984),
quoting Windham Bank v. Tomaszczyk. 27 Ohio St.2d 55, 271 N.E.2d 815 (1971),
paragraph three of the syllabus. In other words, “[p]roof of purposeful, willing or
intentional violation of a court order is not a prerequisite to a finding of contempt. * * * ‘It
is irrelevant that the transgressing party does not intend to violate the court order. If the
dictates of the judicial decree are not followed, a contempt citation will result.’”
(Emphasis sic). Id., quoting Pedone v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d
656 (1983).
{¶18} A trial court’s finding of contempt will be upheld on appeal in the absence
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of an abuse of discretion. Tretola v. Tretola, 3rd Dist. Logan No. 8-14-12, 2014-Ohio-
5484, ¶62. An abuse of discretion takes place when a trial court fails to employ sound,
reasonable and legal decision-making. In re Guardianship of Spagnola, 195 Ohio
App.3d 719, 2011-Ohio-5602, 961 N.E.2d 730, ¶62. Under this standard, the appellate
court cannot substitute its judgment for that of the trial court. Dozer, 88 Ohio App.3d at
302.
{¶19} The resolution of this matter does not require a manifest weight analysis.
As part of her testimony, appellant admitted that once she decided to enroll G.M. in the
preschool program, she stopped allowing appellee to take custody of G.M. for his five-
day visitation.
{¶20} Notwithstanding the foregoing, appellant argues that she cannot be held in
contempt because, in deciding to enroll the child in preschool, she was merely
exercising her right as the custodial parent to provide for the child’s education. While
the right to make decisions regarding a child’s schooling lies solely with the custodial
parent because trial courts cannot force parents to reach agreements on the issue, see
Walker v. Walker, 2d Dist. Montgomery No. 9449, 1985 WL 4539, *2-3 (Dec. 12, 1985),
this does not allow the custodial parent to unilaterally modify the non-custodial parent’s
visitation rights. That authority lies solely with the trial court.
{¶21} Although appellant may have had G.M.’s best interest in mind in enrolling
the child in preschool, she still willfully disregarded a pending court order. In addition,
she could have avoided the ensuing litigation over the contempt and reallocation issues
by simply moving the trial court to modify visitation. The trial court did not abuse its
discretion in finding appellant in contempt. Accordingly, appellant’s sole assignment of
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error lacks merit.
{¶22} The judgment of the Trumbull County Court of Common Pleas, Juvenile
Division, is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶23} I respectfully dissent.
{¶24} Parenting plans, companionship orders or standard visitation orders have
multiple conditions and requirements, all of which are designed to document the various
rights and responsibilities of the parents. Parenting time is an important part of the
parenting plan. The custodial parent is charged with balancing school, medical
appointments, social activities and developmental matters under the plan. Parents are
charged with acting in good faith to coordinate with each other.
{¶25} R.C. 2705.02(A), regarding contempt, describes it as “[d]isobedience of, or
resistance to, a lawful writ, process, order, rule, judgment, or command of a court or
officer[.]” Further, it is well-settled that custody includes the right to make decisions
regarding a child’s schooling. Walker v. Walker, 2d Dist. Montgomery No. 9449, 1985
WL 4539, *2 (Dec. 12, 1985).
{¶26} Appellant’s good faith offer of an alternative time for appellee’s parenting
time so the child could attend pre-school was consistent with the requirements of
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cooperation contained in the parenting plan and does not amount to contempt. Further,
appellee chose not to take this reasonable compromise, and preferred losing several
months of parenting time rather than compromise.
{¶27} I dissent.
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