Schmoldt v. Schmoldt ( 2024 )

[Cite as Schmoldt v. Schmoldt, 2024-Ohio-513.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
DANIEL R. SCHMOLDT, CASE NO. 2023-G-0018
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
JILL SCHMOLDT,
Trial Court No. 2014 DC 000049
Defendant-Appellant.
OPINION
Decided: February 12, 2024
Judgment: Affirmed in part, reversed in part, and remanded
Vincent A. Stafford, Stafford Law Co., LPA, North Point Tower, 1001 Lakeside Avenue,
Suite 1300, Cleveland, OH 44114 (For Plaintiff-Appellee).
Carol A. Szczepanik, P.O. Box 214, 10808 Kinsman Road, Newbury, OH 44065 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Jill Schmoldt, appeals the May 4, 2023 judgment entry of the
Geauga County Court of Common Pleas adopting the magistrate’s decision. The trial
court denied appellee’s, Daniel Schmoldt’s, Motion to Modify Allocation of Parental Rights
and declined to terminate the parties’ March 28, 2018 Amended Shared Parenting Plan
(“SPP”); granted appellee’s September 22, 2021 Motion to Show Cause regarding
appellant’s failure to timely enroll one of their minor children in mental health treatment
as required by an August 18, 2021 Agreed Judgment Entry; and denied appellant’s
Motion to Show Cause regarding appellee’s failure to comply with the Amended Sharded
Parenting Plan by not properly notifying appellant of travel plans.
{¶2} Appellant has raised seven assignments of error arguing the following: (1)
the trial court erred by finding appellant failed to enroll the minor child Ca.S. in an intensive
outpatient treatment program (IOP) pursuant to the terms of the parties’ August 18, 2021
Agreed Judgment Entry; (2) the trial court abused its discretion by finding that appellant
admitted the minor child Mad.S. engaged in underage drinking while in appellant’s care;
(3) the trial court erred by not adopting the Guardian ad Litem’s (GAL) recommendation
to terminate the parties’ Amended Shared Parenting Plan; (4) the trial court erred by not
finding appellee in contempt for failing to timely notify appellant about travel plans with
two of the children; (5) the trial court erred by determining appellant had voluntarily
dismissed a portion of her Motion to Show Cause; (6) the trial court erred by finding
appellant in contempt; and (7) the trial court erred by ordering appellant to pay $2,500 for
appellee’s attorney fees.
{¶3} Having reviewed the record and the applicable caselaw, we find appellant’s
assignments of error have some merit. The trial court did not abuse its discretion in finding
appellant violated the parties’ August 18, 2021 Agreed Judgment Entry when appellant
decided to wait to enroll Ca.S. in the IOP until December 2021 and the court did not err
in finding her in contempt and ordering her to pay $2,500 in attorney fees. Next, the trial
court did not abuse its discretion in finding appellant did not present sufficient evidence
to prosecute her Motion to Show Cause for appellee’s failure to timely notify her about
travel plans with two of the children. Further, the trial court did not err in maintaining the
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Agreed Shared Parenting Plan where the court found doing so was in the best interest of
the minor children despite the parties’ communication issues.
{¶4} However, the trial court did err by failing to rule on a portion of appellant’s
Motion to Show Cause which she did not voluntarily dismiss. In addition, the trial court
erred in finding that appellant admitted to incidents involving Mad.S. engaging in
underage alcohol consumption under appellant’s care.
{¶5} Therefore, we affirm the judgment of the Geauga County Court of Common
Pleas in part, reverse in part, and remand with instructions for the trial court to rule on the
portion of appellant’s Motion to Show Cause relating to appellee’s failure to provide proof
of $7,500 support payment. Further, the trial court is instructed to correct its findings of
fact to reflect that appellant did not admit to any incidents involving Mad.S. engaging in
underage alcohol consumption under appellant’s care.
Substantive and Procedural History
{¶6} Appellant and appellee were married on November 24, 2002, and divorced
on July 11, 2014. The marriage produced four children, Mar.S. DOB 10-27-2003, Mad.S.
DOB 8-8-2005, Ca.S. DOB 11-12-2006, and Co.S. DOB 4-12-2009. At the time of the
divorce, the parties used a standard parenting time schedule. However, the parties later
entered into an Agreed Amended Shared Parenting Plan (“SPP”) on March 28, 2018. The
SPP was later modified through an Agreed Judgment Entry on August 18, 2021 (“MSPP”).
Mar.S. had been emancipated by the time the underlying motions in this case were before
the trial court.
{¶7} Relevant to this appeal, the SPP provided that a parent taking a child on
vacation must notify the other parent 14 days in advance of the dates the children will be
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on vacation and to also provide “information regarding any flights by which the children
will be traveling, and an address and phone number at which the children can be reached
during vacation.”
{¶8} Also relevant, the MSPP included a provision relating to Ca.S.’s counseling.
It provided that Ca.S. “shall immediately engage in an Intensive Outpatient Treatment
Program (IOP) at either The Cleveland Clinic Foundation or Highland Springs. * * * In the
event that [Ca.S.] is unable to immediately engage in an IOP, Dr. Fulchiero shall
recommend a counselor for [Ca.S.] and begin counseling as soon as possible.”
{¶9} On September 22, 2021, appellee filed a Motion to Modify Allocation of
Parental Rights and Responsibilities. He sought the modification because he claimed that
appellant was not facilitating possession of Ca.S. and had not complied with the
counseling requirements set forth in the MSPP. In addition, appellee filed a Motion to
Show Cause regarding appellant’s failure to comply with the terms of the MSPP. Appellee
requested that appellant pay the attorney fees associated with prosecuting the Motion.
{¶10} On March 22, 2022, appellant filed a Motion to Show Cause regarding
appellee’s failure to comply with several provisions of various judgment entries. Appellant
claimed that appellee had not made timely property settlement payments on the 15th of
each month, making such payments as late as the 26th day of the month. Second, she
claimed appellant failed to provide evidence of a $7,500 support payment appellee
claimed to have made in July 2017 as required by an April 16, 2018 judgment entry
pertaining to an overpayment of spousal support. Third, she claimed that appellee had
previously been ordered to pay appellant $1,750 in attorney fees within 30 days of a
March 6, 2020 judgment finding appellee had filed an unmeritorious motion to show cause
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against appellant. She said appellee had failed to make such payment. Fourth, appellant
claimed that appellee had not timely paid his share of extracurricular expenses for the
minor children within 30 days of receipt of the bill. Finally, appellant claimed appellee
violated the SPP by taking Mad.S. and Co.S. out of town on February 18, 2022 and that
she was not aware of the trip until one of the minor children informed her of it on February
16, 2022. She also said that appellee failed to provide flight information, incorrectly
informed appellant of the return time, and that the trip extended into her parenting time
by one-half day.
{¶11} On July 18 and 19, 2022, the trial court, through a magistrate, held a hearing
on the three pending post-divorce decree motions.
{¶12} Counsel for appellee first moved to dismiss the portion of appellant’s Motion
to Show Cause because the $1,750 appellee owed for attorney fees had been reduced
to a judgment and was in collection proceedings. He therefore argued the trial court
lacked jurisdiction to proceed. Appellant opposed the dismissal and the magistrate said it
would reserve ruling on the Motion to Dismiss. On day two of the hearing, appellee
tendered a check for $1,750 and appellant voluntarily dismissed that aspect of her Motion
to Show Cause. However, appellant maintained all other portions of her Motion to Show
Cause, including appellee’s failure to provide evidence of the $7,500 support payment.
{¶13} Appellee testified that he regularly sees all of his children except for Ca.S.
He explained that he has only seen Ca.S. three times in the preceding year. He further
said he regularly communicates with all of his children but that Ca.S. does not engage
with him or attend parenting time with him.
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{¶14} Ca.S. suffers from depression and other mental health issues. Appellee said
that he and appellant have had a disagreement about how to best address these
concerns. In particular, appellee opposed providing medications to Ca.S. However,
appellant provided anxiety medications to Ca.S. and appellee became aware of this
because Ca.S. was hospitalized for an overdose.
{¶15} He said that after the MSPP, he attempted to have Ca.S. immediately
enrolled in an IOP through Highland Springs. Both appellant and appellee attended an
initial intake meeting at Highland Springs in August. However, appellee said that appellant
“refused to enroll her because she said she was going to miss school. And I was more
concerned about, that, you know, all the events that had been taking place, and I thought
it was more important that she got counseling than school.” Appellee acknowledged that
Highland Springs needed to perform an assessment before determining what course of
treatment was appropriate for Ca.S. He denied that Highland Springs recommended an
outpatient treatment program at that time. Ca.S. did engage in an outpatient treatment
program beginning in December 2021.
{¶16} Appellant testified that Ca.S.’s school year had started by the time she and
appellee were able to have an intake meeting at Highland Springs. She further said that
Highland Springs did not offer inpatient treatment for Ca.S. and recommended a five-
week outpatient program that meets four days per week, with meetings starting at 1:00
p.m.
{¶17} Appellant said the program would “interrupt” Ca.S.'s “school day a lot, um,
so that was a major concern of mine. So I discussed it with Highland Springs and Dr.
Fulchiero and Rachel Croce what would be the best approach for getting her in that
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program. * * *[T]hey agreed that pulling her out of school would cause her more stress.”
Appellant denied that there was ever a suggestion to enroll Ca.S. in a three-month
inpatient program. At the August intake meeting, appellant said the earliest Highland
Springs could offer Ca.S. an IOP would be “the next month or two” September or October
at the earliest. Appellant said that she and Ca.S.’s healthcare providers felt she should
start an IOP that did not disturb her school schedule. Ca.S. started the outpatient program
in December during her school’s winter break.
{¶18} On cross-examination, appellant said she knew the legal requirements to
immediately enroll Ca.S. in the IOP and did not enroll her immediately, seek to modify the
court order, or provide documentation from Ca.S.’s healthcare providers to demonstrate
why a delay was necessary. She also admitted that Ca.S. improved after attending the
IOP in December, that she struggled between August and December, and would have
likely improved sooner had she attended the IOP sooner.
{¶19} Appellant recounted Ca.S.’s overdose incident. She said that Ca.S. had
some friends over at the house and discovered they were drinking alcohol and vaping.
Appellant confiscated the items and called the friends’ parents to pick them up. Later that
night Ca.S. woke appellant up to tell her she had taken all her anti-depressants, vomited,
but was worried she could still be overdosing. Appellant took her to the hospital for
treatment.
{¶20} Appellant also recounted two instances where Mad.S. became drunk. She
said Mad.S. was at appellee’s house and appellant found out she had been drinking.
Appellant went to appellee’s house to pick up Mad.S. and bring her to appellant’s house.
In a different incident, the school contacted appellant about Mad.S. When appellant
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arrived, she found Mad.S. “dehydrated and hung over.” She had been at appellee’s house
the night before. Appellant denied there were other incidents involving drinking.
{¶21} Appellant testified that appellee had failed to provide evidence of the $7,500
property settlement check as required by the April 16, 2018 Judgment Entry and that such
payment was still outstanding. The issue related to the amount of an overpayment of
support. As a result of the overpayment, appellant claimed she did not receive her July
2017 monthly $7,500 payment while appellee maintained that he had made the payment.
The April 16, 2018 Judgment Entry determined that appellant would repay $1,116.34 to
appellee as an overage. It further stated that appellant would “provide evidence of a
$7,500 payment * * * [made] in July 2017. The [appellant] will repay the [appellee] the
$7500 within seven days of receipt of such evidence.”
{¶22} Appellant next testified that appellee had failed to reimburse his share of
certain medical expenses and extracurricular activities. She also said that appellee
routinely made his monthly $7,500 property settlement payment late. She said he typically
sends the payment through the children and that the payments come late by a few days
to up to two weeks late.
{¶23} Finally, she testified that the children informed her on February 16, 2022,
that appellee was planning to take the children on a flight to Arizona on February 18,
2022. She received no response from appellee until February 18, after the flight had
departed. He said they would return on February 20 and provided a flight number, but no
flight time. Appellant said on February 20, she learned from Mad.S. that they were not
returning until February 21. However, Mad.S. decided to return early to attend softball
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tryouts and flew back by herself. Co.S. returned on February 21 with appellee. Appellant
said that February 21 was one of her parenting dates.
{¶24} The GAL, Denise Cook, testified about her report and evaluation of the
minor children. Cook recommended the termination of the parties’ Amended Shared
Parenting Plan because the parties were unable to communicate sufficiently to facilitate
shared parenting. However, Cook acknowledged all of the children, except Ca.S., were
doing well under the current plan. She also recommended that appellee’s parenting time
with Ca.S. “be reinstated at the discretion of a reunification counselor[.]”
{¶25} The magistrate issued findings of fact and conclusions of law on December
29, 2022. Relative to this appeal, the magistrate’s decision found appellant in contempt
of court by violating the terms of the MSPP by delaying Ca.S.’s enrollment in the Highland
Springs IOP. The decision also recommended that appellant pay $2,500 for appellee’s
attorney fees. The magistrate’s decision concluded appellant’s evidence was “insufficient
to support her claim” that appellee failed to provide adequate travel notice,
misrepresented travel dates, and deprived her of parenting time as a result of the travel
plans.
{¶26} The magistrate determined that appellant had dismissed the portion of her
show cause motion relating to appellee’s failure to pay $1,750 in attorney fees. The
magistrate said that “the remaining prongs of [appellant’s] Motion to Show Cause, with
exception of [appellee’s] alleged refusal” to provide travel itinerary and deprivation of
parenting time “were also voluntarily dismissed by [appellant], without prejudice.”
{¶27} The magistrate’s decision determined it was not in the minor children’s best
interest to terminate or modify the shared parenting plan. However, with respect to Ca.S.,
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the decision recommended that appellee’s parenting time be held in abeyance pending
Ca.S. and appellee attending individual and joint counseling time with the aim of
reunification. The decision also concluded that appellant admitted to “an incident(s)
involving [Mad.S.] and underage drinking while [Mad.S] was in her care.”
{¶28} On January 12, 2023, appellant filed objections to the magistrate’s decision,
and after filing the transcript of the hearing, filed supplemental objections to the
magistrate’s decision. Appellant’s objections were substantively the same as her
assignments of error on appeal.
{¶29} On May 4, 2023, the trial court adopted the magistrate’s decision in its
entirety.
{¶30} Appellant timely appealed, raising seven assignments of error. Appellee
has not filed an answer brief.
Assignments of Error and Analysis
{¶31} For ease of discussion, we address appellant’s assignments of error out of
order and at times in a consolidated fashion.
{¶32} Appellant’s third assignment of error states:
{¶33} “[3.] The trial court erred and abused its discretion in not adopting the
Guardian ad Litem’s recommendation that the Amended Shared Parenting Plan be
terminated and that the Defendant Jill Schmoldt be made the custodial and residential
parent of the three minor children.”
{¶34} “[D]ecisions involving the custody of children are accorded great deference
on review.” In re K.R., 11th Dist. Trumbull No. 2010-T-0050, 2011-Ohio-1454, ¶ 28. “Thus,
any judgment of the trial court involving the allocation of parental rights and
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responsibilities will not be disturbed absent a showing of an abuse of discretion.” Id.“When reviewing an appeal from a trial court’s adoption of a magistrate’s decision, an
appellate court must determine whether the trial court abused its discretion in adopting
the decision.” Huntington Natl. Bank v. Betteley, 11th Dist. Lake No. 2015-L057, 2015-
Ohio-5067, ¶ 17.
{¶35} “The term ‘abuse of discretion’ is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record.” State v. Underwood, 11th
Dist. Lake No. 2008-L-113, 2009-Ohio-208, ¶ 30, citing State v. Ferranto, 112 Ohio St.
667, 676-678 [148 N.E. 362] (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020,
2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure
to exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere
fact that the reviewing court would decide the issue differently is enough to find error[.] *
* * By contrast, where the issue on review has been confined to the discretion of the trial
court, the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error.’” Id., quoting Beechler at ¶ 67.
{¶36} “The highly deferential abuse-of-discretion standard is particularly
appropriate in child custody cases since the trial judge is in the best position to determine
the credibility of the witnesses and there ‘may be much that is evident in the parties’
demeanor and attitude that does not translate well to the record.’” In re K.R., supra, at ¶
30, quoting Wyatt v. Wyatt, 11th Dist. Portage No. 2004-P-0045, 2005-Ohio-2365, ¶ 13.
“In so doing, a reviewing court is not to weigh the evidence, ‘but must ascertain from the
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record whether there is some competent evidence to sustain the findings of the trial
court.’” Id., quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196, 638 N.E.2d 112 (3d
Dist.1994).
{¶37} R.C. 3109.04(E)(2)(c) provides, “[t]he court may terminate a prior final
shared parenting decree that includes a shared parenting plan * * * 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.” “In determining whether shared parenting is in the best
interest of the children, the court shall consider all relevant factors, including, but not
limited to, the factors enumerated in” R.C. 3109.04(F)(1) and (F)(2). R.C. 3109.04(F)(2).
{¶38} The factors in R.C. 3109.04(F)(1) are:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to division
(B) of this section regarding the child’s wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;
(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;
(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to [certain criminal
offenses] * * *;
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(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;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.”
{¶39} The factors in R.C. 3109.04(F)(2) are:
(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;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(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.” R.C. 3109.04(F)(2)(a)-(e).
{¶40} The trial court said that the evidence presented indicated that, with respect
to Mad.S. and Co.S., the parties have “functioned and operated effectively under the
terms of the Shared Parenting Plan and Amended Shared Parenting plan with respect to
their care and support.” Thus, the court did not consider termination of the Amended
Shared Parenting Plan to be in the best interest of Mad.S. or Co.S.
{¶41} However, the trial court said that appellant and appellee have “not” been
able to communicate effectively in their “attempt to parent” Ca.S. “This inability and failure
of both parties has, in turn, caused a severe disruption in appellee’s parenting time and
his relationship with [Ca.S.].” The court said: “Both parents share the blame here” noting
that appellant has made unilateral healthcare and treatment decisions, including “her
decision to delay [Ca.S.’s] entry into the IOP at Highland Springs until Winter, 2021.”
Conversely, the court found that appellee “has refused to acknowledge that [Ca.S.] faces
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mental health challenges * * *. [Appellee] seems unwilling or unable to accept the fact
that his * * * daughter is different from her siblings.” The court concluded: “Both parties’
attitudes and actions have caused a stalemate to ensue * * *.”
{¶42} The court decided the evidence it received did not support a change in
custody or termination in the Amended Shared Parenting Plan because “[b]oth parties’
opinions and points of view have served [Ca.S.] and the parties’ other children well in the
past and it is in [Ca.S.’s] best interest that joint decision-making be maintained.” The court
did determine that appellee’s parenting time with Ca.S. should be held in abeyance
pending Ca.S. and appellee attending reunification counseling sessions.
{¶43} In Thomas v. Thomas, 11th Dist. Trumbull No. 2023-T-0015, 2023-Ohio-
3941, we addressed a similar inability of the parents to cooperate and make decisions
jointly with respect to their children. Id. at ¶ 45. Although under R.C. 3109.04(F)(2)(a) this
factor constitutes grounds for terminating a shared parenting plan, we noted that
termination of a shared parenting plan “is not required whenever this factor is implicated.”
Id. at ¶ 45-46. In Thomas we affirmed the trial court’s decision to maintain a shared
parenting plan where the trial court found the “dynamic” between the parties was “working
for the benefit of” the children and that their “cooperation and communication problems
were not detrimental to the children.” Id. at ¶ 48.
{¶44} Here, the magistrate’s decision appropriately considered the applicable
factors in R.C. 3109.04(F)(1) and (F)(2) in determining the children's best interest, and its
findings are supported by competent, credible evidence in the record. The trial court did
not abuse its discretion in adopting the magistrate's decision.
{¶45} Accordingly, appellant’s third assignment of error is without merit.
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{¶46} Appellant’s first, sixth, and seventh assignments of error state:
{¶47} “[1.] The trial court erred and abused its discretion by finding that the
Defendant Jill Schmoldt failed to enroll [Ca.S.] in an IOP at Highland Springs pursuant to
the terms of the parties’ agreed judgment entry filed on August, 18, 2021.”
{¶48} “[6.] The trial court erred and abused its discretion in finding Defendant Jill
Schmoldt in contempt for a violation of the agreed judgment entry filed on August 18,
2021, because of her delay in enrolling [Ca.S.] in an IOP at Highland Springs.”
{¶49} “[7.] The trial court erred and abused its discretion in ordering that the
Defendant Jill Schmoldt pay $2,500 of the Plaintiff Daniel Schmoldt’s legal fees.”
{¶50} Appellant argues that the trial court abused its discretion by finding her in
contempt of court for failing to immediately enroll Ca.S. in the Highland Springs IOP. She
also challenges the order to pay appellee’s attorney fees in the amount of $2,500 on the
basis that the court erred in finding her in contempt.
{¶51} “‘Contempt is a disregard of, or disobedience to, the orders or commands
of judicial authority. Indirect contempt may include the disobedience of, or resistance to,
a lawful order, judgment, or command of a court officer.’” Miller v. Miller, 11th Dist.
Trumbull No. 2019-T-0048, 2020-Ohio-6914, ¶ 8, quoting Dozer v. Dozer, 88 Ohio App.3d
296, 623 N.E.2d 1272 (4th Dist.1993). “Where the contempt allegation is based on
violation of a court order, the order must be clear and definite with respect to the precise
conduct constituting disobedience.” Lanza v. Lanza, 11th Dist. Lake No. 2023-L-024,
2023-Ohio-3531, ¶ 7, citing Does v. Univ. Hosps. Health Sys., Inc., 2023-Ohio-2120, 218
N.E.3d 1082, ¶ 18-19 (11th Dist.); Cain v. Cain, 11th Dist. Portage No. 2017-P-0084,
2019-Ohio-184, ¶ 21.
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{¶52} The burden of proof for finding civil contempt is clear and convincing
evidence. Kolenic v. Kolenic, 2018-Ohio-1106, 109 N.E.3d 582, ¶ 18 (11th Dist.). “Clear
and convincing evidence is * * * evidence sufficient to produce in the mind of the trier of
fact a firm belief or conviction as to the facts sought to be established.” In re Janson, 11th
Dist. Geauga No. 2005-G-2656, 2005-Ohio-6712, ¶ 33. “A reviewing court ‘will not
reverse the decision of the court below in a contempt proceeding in the absence of a
showing of an abuse of discretion.’” Kolleda v. Kolleda, 11th Dist. Lake No. 2013-L-069,
2014-Ohio-2013, ¶ 42, citing State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417
N.E.2d 1249 (1981).
{¶53} A person charged with contempt of court for violating a court order may
defend the charge by proving it was not in the person’s power to obey the order. Stychno
v. Stychno, 11th Dist. Trumbull No. 2008-T-0117, 2009-Ohio-6858, ¶ 38, citing Courtney
v. Courtney, 16 Ohio App.3d 329, 334, 475 N.E.2d 1284 (3d Dist.1984). “Once a person
seeking contempt has demonstrated a defendant’s failure” to comply with the court order,
“the burden of proof shifts to the defendant to prove” the impossibility of compliance.
Smith v. Smith, 11th Dist. Geauga No. 2013-G-3126, 2013-Ohio-4101, ¶ 41 (Addressing
the inability to pay child support).
{¶54} Appellant argues that she was unable to immediately enroll Ca.S. in the
Highland Springs IOP. She asserts that she did not immediately enroll Ca.S. because
Ca.S. had already begun the school year by the time appellant and appellee had an intake
meeting at Highland Springs in August 2021. She argues that Highland Springs did not
offer an inpatient treatment program, and the outpatient treatment program did not have
any openings until September or October. Appellant also said that she and Ca.S.’s
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doctors felt it would be better for Ca.S. to wait until the winter school break to avoid missed
classes because “pulling her out of school would cause her more stress.” Therefore,
appellant did not enroll Ca.S. in the Highland Springs IOP until December 2021.
{¶55} Appellant admitted that she knew the legal requirements to immediately
enroll Ca.S. in the IOP and did not enroll her immediately, seek to modify the court order,
or provide documentation from Ca.S.’s healthcare providers to demonstrate why a delay
was necessary. She said that despite the court order, she “took into consideration * * *
[Ca.S.’s] medical issues.” Appellant said that she “along with Ca.S.’s medical providers
were “part of the decision” to delay enrolling Ca.S. in the IOP. Appellant said there was
an opening one or two months out, but that she “went with the medical advice” and chose
not to enroll Ca.S. until the winter break. She also admitted that Ca.S. improved after
attending the IOP in December, that she struggled between August and December, and
would have likely improved sooner had she attended the IOP sooner.
{¶56} The trial court concluded that appellant had provided an affirmative defense
and was not in contempt for withholding parenting time from appellee with regard to Ca.S.
refusing to spend time with him. However, the trial court said the “same conclusion is not
true with respect to the issue of [appellant’s] actions relating to her responsibility to” enroll
Ca.S. in the Highland Springs IOP. The court found that appellee proved a violation of the
terms of the August 18, 2021 Judgment Entry because appellant “waited to enroll [Ca.S]
for a program to occur during the Winter School Break, 2021-22.”
{¶57} We agree with the trial court. Appellant’s own testimony indicated that Ca.S.
could have been enrolled in the Highland Springs program by October at the latest and
that doing so would have inured to her benefit. However, appellant did not enroll Ca.S.
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until December based on her decision that it would be best for Ca.S. to avoid missing
afternoon classes. Although appellant came to this conclusion by discussing the matter
with Ca.S.’s medical providers, appellant did not seek a variance of the August 18, 2021
Judgment Entry, but instead decided, over appellee’s objections, to delay enrolling Ca.S.
in the IOP.
{¶58} The trial court did not abuse its discretion in adopting the magistrate’s
decision finding appellant failed to comply with the terms of the August 18, 2021 Judgment
Entry and finding her in contempt therefor. Further, the trial court did not err in ordering
appellant to pay $2,500 of appellee’s attorney fees incurred in prosecuting his Motion to
Show Cause.
{¶59} Accordingly, appellant’s first, sixth, and seventh assignments of error are
without merit.
{¶60} Appellant’s fourth assignment of error states:
{¶61} “[4.] The trial court erred and abused its discretion by finding that Daniel
Schmoldt should not be held in contempt for his travel with two of the minor children
immediately preceding the President’s Day weekend in February 2022.”
{¶62} Appellant next argues that the trial court abused its discretion by not finding
appellee in contempt of court in relation to his travel with Mad.S. and Co.S.
{¶63} The magistrate’s decision noted appellant’s testimony about the events
surrounding the trip and appellee’s alleged lack of communication about the trip, the
misrepresentation about the return flight, and Co.S. missing one-half day of parenting
time with appellant. However, the magistrate’s conclusion of law on this issue found that
appellant offered insufficient evidence to support her Motion to Show Cause.
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{¶64} We are mindful of the high degree of deference we are to exercise in
reviewing a trial court’s adoption of the magistrate’s decision with regard to contempt
proceedings. Our role is not to weigh the evidence but to ascertain from the record
whether there is some competent evidence to sustain the trial court’s decision. See In re
K.R., 2011-Ohio-1454, ¶ 30.
{¶65} The magistrate conducted a two-day hearing and heard testimony from
appellant and appellee on this issue. It is noteworthy that counsel for appellant did not
elicit any testimony from appellee himself about his alleged failure to provide timely flight
information, his misrepresentation of the return flight times, and Co.S. missing parenting
time with appellant.
{¶66} By way of contrast, appellee’s Motion to Show Cause in relation to Ca.S.’s
IOP included testimony from both appellee and appellant. Appellant herself offered her
reasoning as to why she chose to delay Ca.S.’s enrollment in the IOP, which the trial court
found was in violation of the August 18, 2021 Judgment Entry. With respect to appellant’s
claim that appellee did not provide notice for travel, appellant presented her Motion to
Show Cause solely through her own unsupported testimony. The trial court did not abuse
its discretion in determining that appellant did not provide clear and convincing evidence
of appellee’s failure to provide timely travel plans or cause appellant to miss one-half day
of parenting time.
{¶67} Accordingly, appellant’s fourth assignment of error is without merit.
{¶68} Appellant’s fifth assignment of error states:
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{¶69} “[5.] The trial court erred and abused its discretion in finding that the
contempt charge relating to the court order of April 16, 2018, had been voluntarily
dismissed by the Defendant Jill Schmoldt.”
{¶70} Appellant argues that the trial court abused its discretion in adopting the
magistrate’s finding of fact that she voluntarily dismissed the portion of her Motion to Show
Cause relating to the April 16, 2018 Judgment Entry with regard to appellee’s failure to
provide evidence of the $7,500 property settlement check.
{¶71} While it is true that appellant voluntarily dismissed the portion of her Motion
to Show Cause relating to the $1,750 payment for attorney fees, the magistrate recited
the remaining outstanding issues to be determined on the record and listed “the issue of
[appellee] providing evidence of payment to the * * * $7,500.00 property division payment
due in July of 2020” as one of the remaining issues to be determined.
{¶72} However, the magistrate’s decision incorrectly indicated that appellant had
also voluntarily dismissed this issue. Appellant properly raised this issue in her objections
to the magistrate’s decision. However, the trial court adopted the magistrate’s decision
and did not rule on this issue.
{¶73} Accordingly, appellant’s fifth assignment of error has merit.
{¶74} Appellant’s second assignment of error states:
{¶75} “[2.] The trial court erred and abused its discretion by finding that the minor
child [Mad.S.] engaged in underage drinking while in the care of the Defendant Jill
Schmoldt.”
{¶76} Appellant argues that the trial court abused its discretion in adopting the
magistrate’s finding of fact that she admitted to an incident involving Mad.S. engaging in
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underage alcohol consumption under her care. The trial court found “Jill admitted to an
incident(s) involving [Mad.S.] under underage drinking while [Mad.S.] was in her care.
Said incident had occurred at her residence in the Fall of 2021 and another in February,
2022, that caused [Mad.S.] to pass out.” Our review of the transcript indicates that
appellant acknowledged an incident that occurred under her care where Ca.S. consumed
alcohol and was vaping while friends visited, that appellant had the friends’ parents pick
them up, and that later that night, Ca.S. overdosed on medication.
{¶77} However, appellant did not admit to any incident involving Mad.S. and no
evidence supports such a conclusion. During the hearing, appellant testified that one of
Mad.S.’s friends contacted her about Mad.S. consuming alcohol while she was with
appellee. Appellant was unable to contact appellee and “made the decision to go over
and pick her up.” When appellant arrived, she found Mad.S. was “completely drunk.”
Appellant testified to a subsequent incident in February and said that she was contacted
to pick Mad.S. up from school because she had passed out in the hallway. Appellant said
that Mad.S. had spent the night at appellee’s house and had been drinking the night
before.
{¶78} In short, there was no evidence to indicate that Mad.S. consumed alcohol
while she was under appellant’s care. Appellant testified that Mad.S. had two incidents
involving alcohol consumption. However, she said these incidents occurred while Mad.S.
was under appellee’s care. Appellant denied that these incidents occurred under her care
and we find no evidence to indicate these incidents did in fact occur under appellant’s
care. Therefore, the trial court’s adopting the magistrate’s finding of fact that appellant
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“admitted to an incident(s) involving [Mad.S] and underage drinking while Mad.S. was in
her care” was an abuse of discretion.
{¶79} Accordingly, appellant’s second assignment of error has merit.
{¶80} For the foregoing reasons, the judgment of the Geauga County Court of
Common Pleas is affirmed in part, reversed in part, and remanded. On remand, the trial
court is instructed to rule on the portion of appellant’s Motion to Show Cause relating to
appellee’s failure to provide proof of $7,500 property settlement payment. Further, the
trial court is instructed to correct its findings of fact to reflect that appellant did not admit
to any incidents involving Mad.S. engaging in underage alcohol consumption under
appellant’s care.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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