Slosser v. Supance , 2023 Ohio 3437 ( 2023 )

[Cite as Slosser v. Supance, 2023-Ohio-3437.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anthony Slosser, :
Plaintiff-Appellant, :
No. 22AP-693
v. : (C.P.C. No. 13JU-12252)
Alicia C. Supance et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on September 26, 2023
On brief: Dougherty, Hanneman & Piccin, LLC, and
Douglas B. Dougherty, for appellant. Argued: Douglas B.
Dougherty.
On brief: Jessica M. Wood, for appellees. Argued:
Jessica M. Wood.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Anthony Slosser (“Father”), appeals from the October 12,
2022 decision and judgment entry of the Franklin County Court of Common Pleas, Division
of Domestic Relations, Juvenile Branch, which overruled in part and sustained in part
Father’s objections and adopted with modifications the magistrate’s January 18, 2022
decision. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Father and defendant-appellee, Alicia C. Supance (“Mother”), who never
married, are the parents of one minor child. On July 24, 2018, the parties filed a shared
No. 22AP-693 2
parenting plan (“SPP”) allocating their parental rights and responsibilities.1 In a “Shared
Parenting Decree” issued January 7, 2019 with an effective date of July 24, 2018, the trial
court adopted the SPP.
{¶ 3} On July 7, 2020, Mother filed a motion requesting appointment of a
parenting coordinator to assist with interpretation and implementation of the SPP. On
September 15, 2020 and March 26, 2021, Mother filed motions to show cause why Father
should not be held in contempt for failure to comply with various provisions of the SPP.
The September 15, 2020 motion alleged Father violated provisions related to summer
parenting time in August 2020, providing notice of summer vacation in April 2020, and
failure to pay 50 percent of outstanding medical expenses for 2015 and 2019. The
March 26, 2021 motion alleged Father failed to comply with SPP provisions regarding
parenting time during the 2020 Thanksgiving school break, and he failed to follow advice
provided by the child’s physician following an injury sustained by the child in March 2020.
{¶ 4} On October 14 and December 22, 2020, Father filed motions to show cause
why Mother should not be held in contempt for violating certain provisions of the SPP. The
October 14, 2020 motion alleged Mother breached provisions regarding parenting time in
late summer 2020, telephone communication with the child, and decision making
regarding the child’s medical appointments. The December 22, 2020 motion alleged
Mother violated provisions regarding parenting time in December 2020.
{¶ 5} In each of their contempt motions, the parties requested the opposing party
pay the attorney fees and court costs incurred in filing the motions. On April 8, 2021, Father
filed a motion requesting an award of attorney fees incurred in responding to Mother’s two
contempt motions. Subsequently, the parties’ attorneys filed affidavits in support of their
respective clients’ requests for attorney fees.
{¶ 6} A magistrate conducted a trial on the five motions on April 15 and
September 8, 2021. Both Father and Mother testified at the trial, and several exhibits were
entered into evidence; no other witnesses testified. At the magistrate’s direction, both
parties submitted written closing arguments. In a decision filed January 18, 2022, the
magistrate recommended the court deny all five motions filed by the parties, find each party
responsible for their own attorney fees, and assess costs equally to the parties. Pursuant to
1 The July 24, 2018 SPP replaced a previously filed SPP.
No. 22AP-693 3
Father’s request filed January 25, 2022, the magistrate issued additional findings of fact
and conclusions of law on March 17, 2022. The additional findings of fact and conclusions
of law more fully explained, but did not substantively alter, the magistrate’s January 18,
2022 decision.
{¶ 7} On January 27, 2022, Father filed seven objections to the magistrate’s
decision. In his first objection, Father argued the magistrate erred by failing to find Mother
in contempt for violating his parenting rights in late summer 2020. In his second and third
objections, Father contended the magistrate erred by failing to find Mother in contempt for
failing to consult with him regarding the child’s medical appointments. In his fourth
objection, Father maintained the magistrate erred by failing to find Mother in contempt for
violating his parenting time rights in December 2020. In his fifth objection, Father claimed
the magistrate erred by failing to grant his request for compensatory parenting time
resulting from Mother’s interference with his parenting time in late summer 2020 and
December 2020. In his sixth and seventh objections, Father asserted the magistrate erred
by failing to order Mother to pay attorney fees he incurred both in prosecuting Mother’s
contempt motions and in defending against Mother’s motions for contempt and for a
parenting coordinator. In addition to the objections, Father noted he would be ordering a
transcript of the trial before the magistrate and requested permission to file a supplemental
memorandum after he obtained the transcript.
{¶ 8} On February 9, 2022, Father filed a corrected version of his objections.2 On
February 24, 2022, he filed a transcript of the trial before the magistrate. On March 8,
2022, the trial court issued an agreed entry providing Father until March 23, 2022 to file a
supplemental memorandum in support of his objections. The agreed entry also set forth
deadlines for Mother to file a response to Father’s supplemental memorandum and for
Father to file a reply to any response filed by Mother. In accordance with the agreed entry,
Father, on March 23, 2022, filed a supplemental memorandum in support of his objections,
which included more extensive arguments and citations to the trial transcript.
{¶ 9} Mother filed a memorandum contra to Father’s objections on April 11, 2022.
Father replied to Mother’s memorandum contra on April 21, 2022. Also on April 21, 2022,
2 Father’s February 9, 2022 filing simply corrected a date included in paragraph one of his January 27, 2022
filing.
No. 22AP-693 4
Father filed his own affidavit in support of his request for attorney fees. Therein, Father
sought reimbursement from Mother for the entire cost of the transcript he filed in support
of his objections to the magistrate’s decision.
{¶ 10} The trial court held a non-evidentiary oral hearing on May 3, 2022, at which
Father appeared pro se and Mother appeared with counsel. Thereafter, on October 12,
2022, the trial court issued a decision and judgment entry which overruled in part and
sustained in part Father’s objections and adopted with modifications the magistrate’s
January 18, 2022 decision. The trial court sustained Father’s objections regarding Mother’s
interference with his parenting rights in late summer 2020 and the magistrate’s related
failure to grant him compensatory parenting time for that three-day period. The trial court
overruled the remainder of Father’s objections.
{¶ 11} Having found Mother in contempt for interfering with Father’s parenting
time rights in late summer 2020, the trial court sentenced Mother to 30 days in jail,
suspended on condition that she purge the contempt by: (1) providing Father with three
days of make-up parenting time before the end of 2022, (2) paying Father $1,500 in
attorney fees within 30 days of the filing of the court’s decision, and (3) paying Father
$1,000 in costs and expenses related to transcript preparation within 60 days of the court’s
decision.
II. Assignments of Error
{¶ 12} Father has filed a timely notice of appeal and assigns the following three
assignments of error for our review:
I. The trial court erred when it concluded that mother
presented sufficient evidence to establish the defense of
impossibility regarding her denial of father’s parenting time
on December 19 and 20 in 2020.
II. The trial court erred when it failed to hold mother in
contempt regarding mother’s denial of father’s parenting time
on December 19 and 20 in 2020.
III. The trial court erred when it failed to order mother to
reimburse father for the full cost of the transcript.
No. 22AP-693 5
III. Analysis
{¶ 13} Father’s first and second assignments of error are related and will be
discussed together. In them, Father contends the trial court abused its discretion by failing
to find Mother in contempt for violating the terms of the SPP pertaining to his weekend
parenting time rights on December 19 and 20, 2020 upon findings that Mother offered him
a reasonable alternative for exercising his parenting time and that she successfully
established the defense of impossibility.
{¶ 14} Generally, R.C. 2705.02(A) provides that a person may be punished by
contempt for “[d]isobedence of, or resistance to, a lawful writ, process, order, rule,
judgment, or command of a court or officer.” This court has defined contempt as “ ‘a
disregard of, or disobedience to, an order or command of judicial authority.’ ” Rife v. Rife,
10th Dist. No. 11AP-427, 2012-Ohio-949, ¶ 9, quoting Wesley v. Wesley, 10th Dist. No.
07AP-206, 2007-Ohio-7006, ¶ 10, citing Sansom v. Sansom, 10th Dist. No. 05AP-645,
2006-Ohio-3909.
{¶ 15} Specifically applicable here, R.C. 2705.031(B)(2) authorizes any person who
has rights under a parenting time or visitation order or decree to “initiate a contempt action
for a failure to comply with, or an interference with, the order or decree.” R.C. 2705.031(E)
provides that the court “shall have jurisdiction to make a finding of contempt for a failure
to comply with, or an interference with, a parenting time or visitation order or decree and
to impose the penalties set forth in [R.C. 2705.05] in all cases in which the failure or
interference is at issue even if the parenting time or visitation order or decree no longer is
in effect.” “Generally, contempt proceedings in domestic relations matters are civil in
nature as their purpose is to encourage compliance with the court’s orders.” Wehrle v.
Wehrle, 10th Dist. No. 12AP-386, 2013-Ohio-81, ¶ 55, citing Byron v. Byron, 10th Dist. No.
03AP-819, 2004-Ohio-2143, ¶ 12. We review a trial court’s decision whether to find a party
in contempt under an abuse of discretion standard. Williams v. Williams, 10th Dist. No.
15AP-739, 2016-Ohio-3344, ¶ 18, citing Williamson v. Cooke, 10th Dist. No. 05AP-936,
2007-Ohio-493. “The term abuse of discretion * * * implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” (Internal quotations and citations omitted.)
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
No. 22AP-693 6
{¶ 16} “ ‘[I]n a civil contempt proceeding, the movant bears the initial burden of
demonstrating by clear and convincing evidence that the other party has violated an order
of the court.’ ” Rife at ¶ 10, quoting Hopson v. Hopson, 10th Dist. No. 04AP-1349, 2005-
Ohio-6468, ¶ 19, citing Allen v. Allen, 10th Dist. No. 02AP-768, 2003-Ohio-954, ¶ 16.
“ ‘ “Clear and convincing evidence is that measure or degree of proof which is more than a
mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” ’ ” In re
P.P., 10th Dist. No. 13AP-140, 2013-Ohio-4988, ¶ 19, quoting Gueth v. Gueth, 10th Dist.
No. 09AP-426, 2009-Ohio-6666, ¶ 8, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶ 17} “Once the movant has met his or her burden, the burden shifts to the other
party to either rebut the showing of contempt or demonstrate an affirmative defense by a
preponderance of the evidence.” Wehrle at ¶ 56, citing Hopson at ¶ 19, citing Allen at ¶ 16,
citing Pugh v. Pugh, 15 Ohio St.3d 136, 140 (1984). “ ‘[G]enerally, impossibility of
performance is a valid defense against a contempt charge.’ ” P.P. at ¶ 21, quoting McDade
v. McDade, 10th Dist. No. 89AP-991 (Sept. 27, 1990). “Impossibility of performance occurs
when an unforeseen event arises that renders a party’s performance of an obligation
impossible.” Gauthier v. Gauthier, 12th Dist. No. CA2011-05-048, 2012-Ohio-3046, ¶ 33,
citing In re Guardianship of Hards, 11th Dist. No. 2007-L-150, 2009-Ohio-1002, ¶ 36.
“The performance of the obligation must have been rendered impossible without any fault
of the party asserting the defense.” Id., citing Hards at ¶ 36. “ ‘A party must take all
reasonable steps within [his or] her power to comply with the court’s order and, when
raising the defense of impossibility, must show “categorically and in detail” why [he or] she
is unable to comply with the court’s order.’ ” Robinson v. Rummelhoff, 10th Dist. No. 13AP-
410, 2014-Ohio-1461, ¶ 35, quoting Briggs v. Moelich, 8th Dist. No. 97001, 2012-Ohio-
1049, ¶ 15, citing Lahoud v. Tri-Monex, Inc., 8th Dist. No. 96118, 2011-Ohio-4120, ¶ 54.
The party seeking to raise impossibility of compliance must prove the defense by a
preponderance of the evidence. Rife at ¶ 10, citing Hopson at ¶ 20.
{¶ 18} Section 7 of the SPP governs the parties’ rights and responsibilities regarding
parenting time. As relevant here, Section 7 states:
No. 22AP-693 7
Mother shall have parenting time at all times that are not
Father’s parenting time. Father’s parenting time is as follows:
1. Weekends: Alternating weekends from Friday at 6 p.m.
until Sunday at 6 p.m. This alternating weekend rotation shall
not change, even when interrupted by holiday, birthday,
summer and/or vacation parenting time.
***
7. Transportation: Either parent may select a designee to
provide any or all of their transportation obligation for the
exchange of the child. The designee must be a licensed and
insured driver, must be well known to the child, and clearly
identified to the other parent in advance of the exchange.
Child Safety restraints must be used as required by law.
Unless agreed otherwise the parties shall divide the
transportation by transferring the child at the beginning and
end of all parenting time exchanges at an agreeable location
in Delaware, Ohio[.] If the parties cannot agree on a specific
location the exchange shall take place at the Wendy’s
Restaurant located at 185 South Sandusky Street, Delaware,
Ohio, 43015. If that location becomes unavailable, then they
shall exchange at the closest fast food location to the address
set forth herein.
(SPP at 5-6, 11.)
{¶ 19} Father provided the following testimony at the trial before the magistrate.
Father was scheduled to have his regular weekend parenting time from Friday,
December 18, 2020 at 6 p.m. until Sunday, December 20, 2020 at 6 p.m. in accordance
with Section 7.1 of the SPP. On Friday, December 11, 2020, Mother’s attorney sent an email
to Father’s attorney which advised, in part:
Given that [the child] has testified positive for COVID, a factor
your client [Father] was notified of just moments after my
client [Mother] was alerted, he is now under quarantine until
December 19. Per the regulations, and as detailed to my client
[Mother] in her discussions with the health department, your
client [Father] and his household should be under quarantine
until December 17 (ten days from last contact with [the
child]). Further, my client [Mother] and her household are
under quarantine until December 28. Given this, parenting
time will obviously need to be adjusted. As [the child’s]
quarantine period will be over but my client [Mother] will be
unable to transport him, as hers will not, if your client [Father]
No. 22AP-693 8
wishes to exercise a partial weekend from 9:00 a.m.,
December 19, to 6 p.m., December 20, he can do so by picking
[the child] up at my client’s [Mother’s] home and returning
him thereafter. The same will have to be arranged for the start
of his winter break parenting time, as my client [Mother] will
still be under quarantine. My client [Mother] wants to make
very clear that your client [Father] will need to pull into her
driveway for these exchanges for [the child’s] safety. As you
may be aware, there was a serious issue with your client
[Father] parking on the road and almost causing an accident
while crossing such due to his lack of caution. Due to such, my
client [Mother] made arrangements for the exchanges to
occur elsewhere to assure [the child’s] safety. In the interest
of allowing these exchanges, please assure your client [Father]
parks in the driveway.
(Sept. 8, 2021 Tr. Vol. II; Pltf.’s Ex. 25.)
{¶ 20} Father’s attorney forwarded the email to Father on December 13, 2020.
Father testified that Mother’s email did not expressly state that she had tested positive for
COVID-19; rather, it stated only that she was under quarantine until December 28, 2020.
Father further testified that the email essentially reduced his parenting time by one day and
set forth three conditions on the exercise of that limited parenting time: (1) he would be
responsible for 100 percent of the driving, (2) he had to drive from his home in Columbus
to Mother’s home in Findlay, and (3) he had to park in Mother’s driveway to facilitate the
exchange of the child. Regarding the third condition, Father noted that Mother’s husband
previously had informed him that parking in Mother’s driveway was forbidden and would
result in criminal trespass charges being filed against him. Father averred that no provision
of the SPP sanctioned Mother’s imposition of these three conditions.
{¶ 21} On Friday, December 18, 2020, Father sent an electronic message to Mother
through the Our Family Wizard website, which stated: “Per your request, I will delay my
parenting time this weekend to accommodate [the child’s] quarantine period. I will be in
Delaware to receive him tomorrow at 9 a.m.” (Sept. 8, 2021 Tr. Vol. II at 281-82.) Later
that same day, Mother responded through the Our Family Wizard website, averring: “Given
my extended quarantine, you will need to pick [the child] up at my home. If you choose not
to, you are willingly forfeiting your parenting time.” (Sept. 8, 2021 Tr. Vol. II at 283.)
Father testified that on December 19, 2020, in accordance with the terms of the SPP, he
No. 22AP-693 9
drove to the designated meeting place in Delaware to pick up the child; neither Mother nor
the child were there.
{¶ 22} Father further testified that Mother never told him that she had COVID-19 or
that she was too ill to drive to Delaware; indeed, she offered no explanation as to why she
could not drive the child there. After missing his parenting time on December 19 and 20,
2020, Father directed his attorney to file a motion for contempt against Mother on
December 22, 2020. After the contempt motion was filed, Mother notified Father that her
quarantine period had changed, and that she would adhere to the terms of the SPP for the
commencement of Father’s winter break parenting time on December 26, 2020.
{¶ 23} On cross-examination, Father acknowledged that Mother offered him a
means to exercise his parenting time on December 19 and 20, 2020 after the child’s
quarantine was lifted; however, he did not take that opportunity because he was not
required to do so under the terms of the SPP. Father took exception to Mother’s attorney’s
suggestion that he would rather forfeit his parenting time than travel to Findlay to
accommodate Mother’s Covid-19 quarantine period, stating he “did what the [SPP] requires
me to do” and that he “followed the [SPP].” (Sept. 8, 2021 Tr. Vol. II at 297.) Father
testified that Mother’s assertion in the email that she and her household were under
quarantine did not provide a reason for her failure to transport the child to Delaware in
accordance with the SPP. Father noted that Section 7.7 of the SPP permits either parent to
select a designee to transport the child to the exchange location.
{¶ 24} Father further acknowledged that despite having been informed by Mother
that she would not transport the child to Delaware on December 19, 2020, he made the 45
minute drive to Delaware, waited 15 minutes, and, when Mother and the child did not show
up, made the 45 minute drive back to Columbus. He asserted he was willing to make the
two-hour round-trip drive from Columbus to Delaware rather than make the four-hour
round-trip drive from Columbus to Findlay because he was “follow[ing] the [SPP].”
(Sept. 8, 2021 Tr. Vol. II at 302.)
{¶ 25} During his redirect examination, Father reiterated that the SPP does not
permit Mother to impose new conditions upon the exercise of his parenting time rights and
that Mother did not arrange for a third-party to transport the child as permitted by the SPP.
No. 22AP-693 10
{¶ 26} Mother testified at the trial before the magistrate as follows. When the child
was diagnosed with COVID-19, she spoke to health department personnel about quarantine
protocols, which, according to Mother, included a prohibition against leaving home.
Father objected to this testimony on grounds that Mother had failed to lay a foundation,
through testimony or documentary evidence, setting forth the details of the quarantine
protocols alleged to have been conveyed to Mother by the health department.
{¶ 27} Following a brief off-the-record pause for the court reporter to read back the
previous series of questions, Mother resumed her testimony. Mother averred she believed
the health department’s quarantine protocols prohibited her from leaving her home to
transport the child for the exchange with Father. According to Mother, following those
protocols was more important than transporting the child for the exchange. Mother
averred that everyone in her household had COVID-19 and she did not want to put anyone
else at risk of contracting it, including any potential designated driver. Mother further
testified that because she had tested positive for COVID-19 her quarantine period ended in
time for her to transport the child for the winter break exchange in accordance with the
SPP. Accordingly, she denied Father’s allegation that she shortened her quarantine period
only in response to his filing of the contempt motion on December 22, 2020.
{¶ 28} In response to Father’s testimony regarding Mother’s directive that he was
not to park in her driveway, Mother averred that she had advised Father that he was
permitted to park in her driveway and that she preferred he do so due to safety concerns
about traffic in the area. According to Mother, Father still refused to park in her driveway;
she accommodated Father’s refusal by suggesting they meet at another location close to her
home.
{¶ 29} On cross-examination, Mother was questioned about the source of the
quarantine protocol she claimed to have followed in refusing to transport the child to
Delaware on December 19, 2020. Mother averred she spoke with someone from the health
department via telephone, who advised her of the quarantine protocol. Mother explained
that when a person tests positive for COVID-19, the health department contacts that person
by telephone for purposes of contact tracing and to provide instructions about quarantine
protocols, which included not leaving home. Mother averred that she and her family strictly
observed the quarantine protocols; indeed, they did not leave the house for any reason
No. 22AP-693 11
during the quarantine period. When asked why she could not have quarantined in the car
in order to transport the child, Mother reiterated that she was not permitted to leave her
house; she also set forth various scenarios where she could have exposed another person to
COVID-19 if she were to drive the child to Delaware, such as if she had to take the child into
a public restroom or she was involved in an automobile accident.
{¶ 30} Mother acknowledged the health department could not change the
provisions of the SPP regarding Father’s parenting time rights. However, she stated she was
not willing to risk someone else’s life by exposing them to COVID-19. She also noted that
her request that Father drive to Findlay to retrieve the child would not be repeated, as such
request was due to the “once in a lifetime” pandemic. (Sept. 8, 2021 Tr. Vol. II at 411.)
{¶ 31} Mother admitted her husband had threatened to have Father arrested if he
parked in the driveway of their former home (in which Mother had no ownership interest);
however, because the couple currently lived in a different home (in which Mother had an
ownership interest), Father was free to park in the driveway without the threat of criminal
consequences.
{¶ 32} Upon this evidence, the magistrate determined Mother did not follow the
specified terms of the SPP regarding exchanging the child in Delaware on December 19,
2020; however, Mother established the defense of impossibility of compliance in that she
believed it was not appropriate and/or safe for her travel to the exchange location with the
child when she was under CDC-directed quarantine for COVID-19. The magistrate noted
Mother’s testimony that she did not feel comfortable asking anyone else to transport the
child given the serious risk of illness presented by COVID-19, and the restrictions placed on
her and members of her immediate household. Accordingly, the magistrate found there
were no other persons who could reasonably transport the child under the circumstances.
The magistrate further noted Father’s refusal to accept what the magistrate characterized
as Mother’s “reasonable alternative,” which involved him driving to and from Mother’s
home in Findlay, and Father’s decision to drive to Delaware despite Mother’s clear
advisement that she and the child would not be there. (Mag.’s Decision at 15.)
{¶ 33} At the May 3, 2022 hearing on Father’s objections, Father argued Mother
failed to establish it was impossible for her to comply with the SPP regarding Father’s
weekend parenting time on December 19 and 20, 2020. Specifically, Father asserted that
No. 22AP-693 12
although Mother testified about “a positive [COVID-19] test” and quarantine protocols
imposed by the health department, she provided no documentation confirming a positive
COVID-19 test or identifying the specific health department or the quarantine protocols
imposed by said health department. (May 3, 2022 Tr. at 11.) Father further maintained
Mother did not assert that she requested, but was refused, transportation help from family
or friends; rather, she testified she would not request transportation help from anyone.
Father argued the magistrate “fabricated [facts]” as to “a CDC imposed quarantine” and
that “there were no other people who could * * * reasonably provide [transportation of the
child] for * * * [M]other,” as no testimony supported these findings. (May 3, 2022 Tr. at 11-
12.)
{¶ 34} In response, Mother pointed to Father’s exhibit 25 (Mother’s December 11,
2020 email to Father) as evidence that Mother had tested positive for COVID-19 and was
under quarantine pursuant to health department protocols and that she had presented
Father a viable option for exercising his parenting time after the child’s quarantine period
expired, but he refused to do so. Mother also pointed to that same exhibit and her
testimony that she did not enlist anyone to transport the child because she did not want to
put them at risk of contracting COVID-19.
{¶ 35} Father argued in rebuttal that his exhibit 25 was self-serving and contained
no indication from any federal, county, or local health agency that Mother was under
quarantine following a positive COVID-19 test. Father acknowledged that exhibit 25
established that Mother offered him the option of retrieving the child from her home in
Findlay; however, he noted there were unreasonable conditions accompanying that offer.
{¶ 36} In its October 12, 2022 decision and entry, the trial court provided a detailed
recitation of the evidence contained in the record, concluded that Mother was not in
contempt for Father’s missed parenting time on December 19 and 20, 2020, and overruled
Father’s objection in that regard. The court stated:
Based on the record, the Court finds Mother had an inability
to effectuate an exchange of the child while she, the child, and
her household were in the middle of a positive Covid-19
outbreak. She did not completely refuse Father parenting time
as she offered an alternative for Father to pick up the child,
which he refused. While certainly not the ideal exchange
circumstances Father wanted, it was imperative for the parties
to be flexible during this unprecedented time in a pandemic.
No. 22AP-693 13
The child’s initial quarantine and Mother’s own quarantine
made it impossible for her to drive multiple hours to exchange
the child. Covid-19 has caused unprecedented times and
instances which the parties and the Court’s must continually
navigate. The Court also notes that during December 2020,
Franklin County and the State of Ohio were in constantly ever
evolving mandates, including work from home orders and
countless efforts trying to prevent the spread of the pandemic.
Mother’s asserted defense that she was under Covid-19
quarantine is well taken, therefore, the Court does not find her
in Contempt for Father’s missed parenting time in December
2020. Father’s Objection to this point is not well taken.
(Oct. 12, 2022 Decision & Jgmt. Entry at 10.)
{¶ 37} Father contends the trial court erred by failing to find Mother in contempt,
as her offer of an alternative means for Father to exercise his parenting time was
unnecessary and unreasonable, and she presented insufficient evidence to sustain her
burden of proving that it was impossible for her to transport the child to Delaware.
{¶ 38} As to Mother’s offer of alternative parenting time, Father maintains that such
did not change the fact that Mother violated the SPP. Father posits that court orders would
become unenforceable if parents could avoid contempt findings simply by offering the other
parent an alternative arrangement. Father further argues that the alternative was
unnecessary, as the “stay-at-home order” issued by the Director of the Ohio Department of
Health (“ODH”) on March 22, 2020 expressly authorized parents to transport children
pursuant to court orders.3 Father also contends the alternative was unreasonable, as it
required him to: (1) do all the driving, (2) make two four-hour round-trips to Findlay in a
31-hour period, and (3) park in Mother’s driveway, which could have subjected him to
criminal charges.
{¶ 39} Regarding Mother’s impossibility defense, Father first claims Mother
provided no evidence that she was legally prohibited from transporting the child. Father
maintains that Mother only testified she spoke to an unidentified individual at an
unidentified health department and, based on this interaction, believed she could not leave
3 The stay-at-home order mandated, among other things, that Ohio residents stay at home or at their place of
residence except for “[e]ssential [t]ravel,” which included “[t]ravel required by * * * court order, including to
transport children pursuant to a custody agreement.” See ODH’s Director’s Stay At Home Order at ¶ 14(e).
https://coronavirus.ohio.gov/static/publicorders/DirectorsOrderStayAtHome.pdf (accessed Sept. 26, 2023).
No. 22AP-693 14
her home due to COVID-19. Father notes that Mother submitted no evidence of any specific
protocol affirmatively stating that she could not leave her home. Father reiterates that the
ODH stay-at-home order expressly authorized parents to transport children in accordance
with court orders.
{¶ 40} Father further argues Mother presented no evidence that it was medically
impossible for her to personally transport the child. Father asserts Mother presented no
evidence that she was sick or even symptomatic due to COVID-19. He further maintains
that even if Mother believed she needed to quarantine, she could have done so in her car on
the drive to Delaware without exposing others to COVID-19.
{¶ 41} In addition, Father argues Mother presented no evidence that it was
impossible for a third-party to transport the child. Father notes the SPP permits the parties
to utilize a third-party for transportation purposes. Father asserts Mother admitted during
her testimony that she did not attempt to make transportation arrangements using a third-
party because she did not want to put anyone else at risk of contracting COVID-19. Father
claims that because the child’s quarantine had ended as of December 19, 2020, a third-
party transporter would not have been put at risk of contracting COVID-19.
{¶ 42} In support of his arguments, Father cites Lindsey v. Lindsey, 11th Dist. No.
2020-G-0275, 2021-Ohio-2060. In that case, the parties were subject to a shared parenting
decree which ordered 50/50 physical parenting time with their child. The decree stated the
allocation of parenting time was flexible and could be modified by mutual agreement of the
parties as warranted. In March 2020, at the outset of the COVID-19 pandemic, the mother
unilaterally determined that the father could not physically visit the child due to concerns
relating to the virus and its potential transmission. As an alternative, the mother provided
the father with “face-time” parenting time. Unsatisfied with that arrangement, the father
filed a contempt motion. Following a hearing, the magistrate recommended the mother be
held in contempt. The trial court overruled the mother’s objections to the magistrate’s
decision and adopted the magistrate’s recommendation.
{¶ 43} On appeal, the mother argued that the father failed to meet his burden of
establishing contempt. The mother claimed that regardless of her prima facie violation of
the parenting-time order, compliance with the order was impossible due to the COVID-19
pandemic. The court rejected the mother’s impossibility defense on multiple grounds.
No. 22AP-693 15
First, the court determined the mother could have, but did not, move to modify parenting
time on grounds that the pandemic justified such a modification. Second, the court rejected
the mother’s argument that compliance with the parenting-time order was unreasonable
due to her legitimate concerns relating to the pandemic and, specifically, her good-faith
belief that violation of the order would protect the safety of her child. In doing so, the court
noted that the March 22, 2020 stay-at-home order included an exception for transporting
children pursuant to custody orders. The court reasoned that if travel for such a purpose is
essential, it would reasonably follow that visitation and custody transfers are equally
essential. The court concluded that despite the mother’s assertion that her decision to
withhold father’s physical parenting time was due to her legitimate concern for the safety
of the child, her ultra vires actions were inconsistent with the stay-at-home order’s
directives. Finally, the court determined that although the evidence reflected that family
members with whom the mother and child lived took precautions to protect household
members from significant exposure to strangers, adherence to the parenting time schedule
would not have placed the child in the path of imminent harm, given other evidence that
the father lived alone, worked remotely, and had little contact with third parties.
{¶ 44} Here, Mother cites to a decision from another appellate district that took a
different approach to contempt proceedings in the COVID-19 era. In In re S.S., 9th Dist.
No. C.A. 21AP0022, 2023-Ohio-245, the parents of S.S. were found to be unsuitable. H.N.,
the child’s maternal grandmother, was awarded legal custody; S.C., the child’s paternal
grandmother, was granted visitation. In April 2020, S.C. filed a contempt motion asserting
that H.N. began refusing S.C.’s court-ordered visitation with the child in “February 2020”
due to the COVID-19 pandemic. Id. at ¶ 3. The trial court concluded that H.N. was justified
in taking steps necessary to protect the health and safety of S.S. from illness, as the evidence
demonstrated that H.N. withheld visitation for fear of violating ODH’s stay-at-home order
and to protect the child and her family. The trial court found H.N.’s actions to be reasonable
in light of the circumstances at the time and the competing orders for both court-ordered
visitation and to stay at home.
{¶ 45} On appeal, the court determined the trial court did not abuse its discretion in
denying S.C.’s motion for contempt. In so determining, the court noted its consistent
holdings that “if contempt proceedings are invoked solely by the person aggrieved by
No. 22AP-693 16
disobedience of the court’s order, a refusal to punish for contempt is largely within the
discretion of the trial court.” Id. at ¶ 16, citing SandiCare, L.L.C. v. Wilson, 9th Dist. No.
28306, 2017-Ohio-7596, ¶ 14. The court concluded that “[d]espite the fact that [H.N.]
denied [S.C.] some of her court-ordered visitation during the COVID-19 pandemic, the trial
court has discretion in determining issues of contempt, and it exercised that discretion in
this matter by declining to find [H.N.] in contempt.” Id., citing State ex rel. DeWine v.
Miller, 194 Ohio App.3d 86, 2011-Ohio-2107, ¶ 12 (4th Dist.).
{¶ 46} Both Lindsey and S.S. are factually distinguishable from the instant case, as
in neither of those cases was there evidence that either the caregiver or the child had tested
positive for COVID-19 or had been quarantined due to a positive COVID-19 test. Rather,
in Lindsey, the mother averred that she was simply concerned about the possibility of the
child contracting COVID-19 when visiting the father. In S.S., the maternal grandmother
withheld visitation to protect the child from contracting COVID-19 and to adhere to ODH’s
stay-at-home order. By contrast, in the instant case, the child had tested positive for
COVID-19, and, although the child’s quarantine period expired on December 19, 2020,
Mother and other members of her household had tested positive for COVID-19 and were
quarantining at home in accordance with health department directives Mother received.
We note that CDC guidelines during the time period at issue dictated a 14 to 7-day
No. 22AP-693 17
quarantine period due to COVID-19 exposure and depending on symptoms and test
results.4 See Kulpa v. Kulpa, 7th Dist. No. 22 BE 0010, 2023-Ohio-891, ¶ 29.5
{¶ 47} We find the approach employed by the S.S. court a more appropriate method
for assessing contempt in the context of COVID-19, an unprecedented global pandemic.
Here, the trial court found that Mother was unable to transport the child for the exchange
4 See except from Transcript of CDC Press Briefing, Wednesday, December 2, 2020:
OPERATOR: GOOD MORNING. WELCOME TO TODAY’S CONFERENCE CALL. AT THIS TIME
YOUR LINES HAVE BEEN PLACED ON LISTEN ONLY UNTIL THE QUESTION AND ANSWER
PORTION OF OUR CALL. AT WHICH TIME YOU WILL BE PROMPTED TO PRESS STAR ONE ON
YOUR TOUCHTONE PHONE. PLEASE ENSURE YOUR LINE IS UNMUTED AND RECORD YOUR
NAME AND AFFILIATION TO BE INTRODUCED TO ASK YOUR QUESTION. YOU WILL BE
LIMITED TO ONE QUESTION FOR TODAY’S CONFERENCE. THE CONFERENCE IS BEING
RECORDED. IF YOU HAVE ANY OBJECTIONS YOU MAY DISCONNECT AT THIS TIME. I WILL
TURN THE CONFERENCE OVER TO OUR HOST MR. BEN HAYNES. YOU MAY PROCEED.
HAYNES: THANK YOU, JILL. THANK YOU ALL FOR JOINING US TODAY FOR THIS BRIEFING
TO DISCUSS CHANGES TO CDC’S QUARANTINE GUIDANCE AND CONSIDERATIONS TO
DOMESTIC TRAVEL. TODAY WE ARE JOINED BY DR. HENRY WALKE, THE INCIDENT
MANAGER FOR CDC’S COVID-19 RESPONSE. HE IS THE CDC EXPERT CHARGED WITH
OVERSEEING THE DAY-TO-DAY MANAGEMENT OF THE COVID PANDEMIC. WE ARE ALSO
JOINED BY DR. JOHN BROOKS THE CHIEF MEDICAL OFFICER FOR CDC’S COVID-19
RESPONSE. AND FINALLY, DR. CINDY FRIEDMAN, LAST NAME F-R-I-E-D-M-A-N CHIEF OF
CDC’S TRAVEL BRANCH. DR. WALKE WILL PROVIDE OPENING REMARKS AND OUR
EXPERTS WILL BE HAPPY TO TAKE YOUR QUESTIONS. THIS IS AN ON THE RECORD
BRIEFING. AT THIS TIME I WILL TURN THE CALL OVER TO DR. WALKE.
WALKE: THANK YOU, BEN. CDC’S FOREMOST COMMITMENT TO OUR NATION IS TO
PROTECT THE HEALTH OF THE AMERICAN PUBLIC. WE DO THIS BY LEARNING ALL WE CAN
ABOUT EMERGING INFECTIOUS DISEASES AND APPLYING THAT KNOWLEDGE TO
REASONABLE, COMMON SENSE RECOMMENDATIONS. THIS IS ESPECIALLY TRUE IN
FACING THIS PANDEMIC. AS WE LEARN MORE ABOUT THE VIRUS THAT CAUSES COVID-19,
WE CONTINUE TO REFINE OUR GUIDANCE TO PREVENT TRANSMISSION AND PROTECT
AMERICANS. SINCE THE START OF THE PANDEMIC, CDC HAS RECOMMENDED THAT
THOSE WHO HAVE BEEN EXPOSED TO SOMEONE WITH COVID-19 QUARANTINE FOR 14
DAYS AFTER EXPOSURE. QUARANTINE HELPS PREVENT SPREAD OF DISEASE THAT CAN
OCCUR BEFORE A PERSON KNOWS THEY HAVE THE VIRUS. CDC CONTINUES TO
RECOMMEND QUARANTINING FOR 14 DAYS AS THE BEST WAY TO REDUCE THE RISK OF
SPREADING COVID-19.
ADDITIONALLY, AFTER REVIEWING AND ANALYZING NEW RESEARCH AND MODELING
DATA, CDC HAS IDENTIFIED TWO ACCEPTABLE ALTERNATIVE QUARANTINE PERIODS
THAT WE ARE ANNOUNCING TODAY. UNDER THESE OPTIONS, QUARANTINE CAN END
AFTER TEN DAYS WITHOUT A COVID-19 TEST IF THE PERSON HAS REPORTED NO
SYMPTOMS OR AFTER SEVEN DAYS WITH A NEGATIVE TEST RESULT IF THE PERSON HAS
REPORT[ED] NO[] SYMPTOMS.
(Emphasis added.) https://www.cdc.gov/media/releases/2020/t1202-covid-19-telebriefing.html (accessed
Sept. 26, 2023).
No. 22AP-693 18
due to her positive COVID-19 test. Mother’s testimony alone supported that finding, as she
stated she tested positive for COVID-19 and was directed by a health department official to
quarantine in her home. The trial court also found Mother did not completely refuse Father
parenting time, as she offered an alternative for Father to transport the child, which he
refused. Mother’s testimony alone supported that finding, as she stated she informed
Father that he could retrieve the child from, and return the child to, her home in Findlay
following expiration of the child’s quarantine period; however, Father refused to do so.
Although the trial court did not expressly address in its findings Mother’s testimony
regarding her unwillingness to place a third-party at risk of contracting COVID-19 while
transporting the child, the trial court implicitly did so in finding that Mother was unable to
effectuate an exchange of the child while she, the child, and her household were in the midst
of a positive COVID-19 outbreak.6
{¶ 48} Father presented the arguments he now makes on appeal at trial before the
magistrate, in his objections to the magistrate’s decision, and in oral argument before the
trial court on his objections to the magistrate’s decision. Neither the magistrate nor the
trial court were persuaded by any of Father’s arguments. Given the particular
circumstances of the instant case in light of the unprecedented nature of the COVID-19
pandemic and the uncertainty surrounding it, especially in December 2020, we conclude
that Mother’s actions were reasonable and the trial court did not abuse its discretion in so
finding. This court has held that “a trial court may decline to hold a party in contempt even
when one party is definitively aggrieved by the disobedience of another party of an order of
the court because contempt proceedings are primarily for the vindication of the dignity and
sovereignty of the state in the exercise of its judicial power.” Hopson at ¶ 12, citing Lentz v.
Lentz, 9 Ohio App. 329, 333 (10th Dist.1924).
5 In Kulpa, an infectious disease investigator with the Belmont County Health Department testified that CDC
guidelines in early December 2021 included a ten-day quarantine period from first symptoms, and, if no
symptoms were reported, a ten-day quarantine period would be from a positive test. Id. at ¶ 9. We
acknowledge that Kulpa involved allegations of contempt during a different time period than in the case before
us–nearly one year later–however, we note the Seventh District’s observance of evidence of the CDC
guidelines in effect at the time of the contempt allegations in Kulpa, as we have observed regarding the CDC
guidelines in effect at the time of the contempt allegations before us.
6 In its recitation of the facts, the trial court noted Mother’s testimony that her entire household had COVID-
19; accordingly, she was not going to put anyone else at risk of contracting the virus.
No. 22AP-693 19
{¶ 49} In light of the foregoing, we overrule Father’s first and second assignments of
error.
{¶ 50} In his third assignment of error, Father contends the trial court erred as a
matter of law, or, alternatively, that the trial court abused its discretion, by failing to order
Mother to reimburse him for the full cost of the trial transcript he ordered in prosecuting
his objections to the magistrate’s decision.
{¶ 51} In his April 21, 2022 affidavit in support of his request for attorney fees,
Father requested Mother reimburse him for the full cost of the trial transcript. Father
attached copies of receipts and statements from the court reporters establishing the total
cost of transcript preparation. In its decision and judgment entry, the trial court
acknowledged Father’s affidavit, including the $2,079.20 transcript preparation costs.
{¶ 52} The court cited to R.C. 3109.051(K), which states in part:
If any person is found in contempt of court for failing to
comply with or interfering with any order or decree granting
parenting time rights issued pursuant to this section or
section 3109.12 of the Revised Code or companionship or
visitation rights issued pursuant to this section, section
3109.11 or 3109.12 of the Revised Code, or any other provision
of the Revised Code, the court that makes the finding, in
addition to any other penalty or remedy imposed, shall assess
all court costs arising out of the contempt proceeding against
the person and require the person to pay any reasonable
attorney’s fees of any adverse party, as determined by the
court, that arose in relation to the act of contempt, and may
award reasonable compensatory time parenting time or
visitation to the person whose right of parenting time or
visitation was affected by the failure or interference if such
compensatory parenting time or visitation is in the best
interest of the child.
(Emphasis sic.) (Oct. 12, 2022 Decision & Jgmt. Entry at 14-15.)
{¶ 53} The court, emphasizing the italicized language, analyzed the evidence related
to Father’s request for attorney fees, including the itemized statement provided regarding
services rendered and time expended, the parties’ stipulation that the attorney fees were
reasonable, and the parties’ relatively equal income and assets. The court also noted
Father’s assertion that Mother was unsuccessful on all her motions for contempt and that
one full day of trial was dedicated to Mother’s motions. The court awarded attorney fees to
No. 22AP-693 20
Father for the prosecution of his successful contempt, i.e., his missed parenting time in
summer 2020 and then stated it would award court costs arising out of the contempt
proceeding relative to that motion. In its purge order, the court ordered Mother pay Father
$1,000 in costs and expenses related to transcript preparation.
{¶ 54} Father maintains that under the plain language of R.C. 3109.051(K), when a
party is found in contempt for failing to comply with or interfering with an order granting
parenting time rights, the court “shall assess all court costs arising out of the contempt
proceeding” against the contemnor. Thus, argues Father, because Mother was found in
contempt for violating Father’s parenting time rights in summer 2020, the trial court was
required by R.C. 3109.051(K) to assess against Mother the entire cost of transcribing the
trial before the magistrate, even though at trial the magistrate considered numerous
motions and multiple allegations of contempt made by both Mother and Father, and Father
only ultimately prevailed on one of the four allegations of contempt he made against
Mother.7
{¶ 55} R.C. 3109.051(K) does not address whether the term “court costs” includes
the costs of transcribing a transcript. Nevertheless, as the trial court assessed against
Mother in favor of Father $1,000 in costs and expenses “related to Transcript fees,” and
Mother did not appeal, for purposes of this discussion we assume that “court costs” includes
the costs of transcribing a transcript. (Emphasis sic.) (Oct. 12, 2022 Decision & Jgmt. Entry
at 16.) R.C. 3109.051(K). Such assumption would be consistent with R.C. 2303.21 which
states that “[w]hen it is necessary in an appeal, or other civil action to procure a transcript
of a judgment or proceeding, or exemplification of a record, as evidence in such action or
for any other purpose, the expense of procuring such transcript or exemplification shall be
taxed in the bill of costs and recovered as in other cases.” (Emphasis added.)
7 At the April 15 and September 8, 2021 hearings, the magistrate considered the following motions filed by
Mother: July 7, 2020 motion for appointment of parenting coordinator; September 15, 2020 motion for
contempt; and March 26, 2021 motion for contempt. The magistrate also considered the following motions
filed by Father: October 14, 2020 motion for contempt; December 22, 2020 motion for contempt; and April 8,
2021 motion for attorney fees. In the two motions for contempt which Father filed, he made four specific
allegations of contempt. The magistrate found Father did not prevail on any of the four specific allegations.
Father objected to the magistrate’s findings with regard to all four of the specific allegations. The trial court
sustained Father’s objections as to one of the four specific allegations. Mother did not object to the magistrate’s
findings that she did not prevail on any of the five specific contempt allegations which she made in her two
motions.
No. 22AP-693 21
{¶ 56} R.C. 3109.051(K) also does not address the definition of “all” when
considered in the context of the requirement, upon filing objections to a magistrate’s
decision, to provide a transcript of the trial before a magistrate. Civ.R. 53(D)(3)(b)(iii) and
Juv.R. 40(D)(3)(b)(iii) both provide that an objection to a magistrate’s factual finding,
whether or not specifically designated as a finding of fact, “shall be supported by a transcript
of all the evidence submitted to the magistrate relevant to that finding or an affidavit of
that evidence if a transcript is not available.” (Emphasis added.) Accordingly, here,
pursuant to Civ.R. 53(D)(3)(b)(iii) and Juv.R. 40(D)(3)(b)(iii), Father was required to
support his objections to the magistrate’s factual findings with a transcript of the evidence
presented at trial relevant to the factual findings made as to his four specific allegations of
contempt.
{¶ 57} Finally, Father fails to cite, and our independent research has not produced,
any Ohio case that has considered whether R.C. 3109.051(K) mandates assessment of the
cost of transcribing the transcript of an entire trial against a contemnor under the
circumstances presented in this case. Our independent research has, however, revealed
one case from the Fourth District Court of Appeals that addresses a trial court’s assessment
of costs to each party for their own witness fees and one-half of a guardian ad litem bill to
each party, circumstances somewhat similar to those in the present case. Although the type
of costs considered in Frick v. Howell, 4th Dist. No. 14CA19, 2015-Ohio-3639, differs from
the type of costs in the case before us we find the reasoning employed in Frick to be
persuasive. In Frick, the appellant contended the trial court erred by failing to order the
appellee to pay all of the court costs arising from contempt proceedings. The Fourth
District determined the trial court did not err in determining the allocation of court costs.
Id. at ¶ 49. The court first noted that R.C. 3109.051(K) “only mandates the assessments of
court costs ‘arising out of the contempt proceeding.’ ” Id., quoting R.C. 3109.051(K). The
court further noted that the appellee was “only found in contempt for denying visitation on
some of the dates listed in the show cause motions. Appellee was not found to be in
contempt for other alleged denials of visitation or for otherwise violating the court’s order.”
Id. The court concluded that the trial court “appropriately limited” its award of court costs
for the specific finding of contempt.” Id.
No. 22AP-693 22
{¶ 58} Therefore, taking all the above into consideration, in this case, as it relates to
the assessment of the cost of the transcript in the circumstances before us, we cannot say
the trial court erred in declining to order Mother to reimburse Father for the cost of the
transcript for the entire trial.
{¶ 59} Father argues that regardless of his lack of success on his objections as they
relate to the additional three specific allegations of contempt, as a practical matter, he had
no choice but to obtain the entire transcript of the two-day trial. Father correctly notes that
in its findings regarding Mother’s violation of Father’s summer 2020 parenting time rights,
the trial court cited to testimony and evidence provided during both days of the trial.
Nevertheless, as explained above, we cannot say the trial court abused its discretion in
limiting its award of court costs for transcript fees pursuant to R.C. 3109.051(K) to $1000.
We find such assessment of court costs for transcript fees was reasonable under the
circumstances given that only part of the transcript preparation cost was relevant to
Father’s objections and to the court’s specific contempt findings.
{¶ 60} For the foregoing reasons, Father’s third assignment of error is overruled.
IV. Conclusion
{¶ 61} Having overruled Father’s three assignments of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
LUPER SCHUSTER and EDELSTEIN, JJ., concur.