Sypherd v. Sypherd , 2012 Ohio 2615 ( 2012 )

[Cite as Sypherd v. Sypherd, 2012-Ohio-2615.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
KELI M. SYPHERD C.A. No. 25815
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARK B. SYPHERD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2007-10-3306
DECISION AND JOURNAL ENTRY
Dated: June 13, 2012
BELFANCE, Presiding Judge.
{¶1} Appellant, Mark Sypherd (“Father”), appeals from a judgment of the Summit
County Court of Common Pleas, Domestic Relations Division. Although Father also challenges
the trial court’s finding of contempt for violating the vacation provision of the original divorce
decree, that issue is now moot because Father has since purged himself of the contempt. For the
reasons that follow, we affirm.
I.
{¶2} Father was married to Keli Sypherd (“Mother”) from May 22, 1999, until they
were granted a divorce on December 5, 2008. The trial court incorporated the parties’ separation
agreement and a shared parenting plan into the divorce decree. The shared parenting plan
allocated parenting time between the parents for their twins born in 2001 and a younger daughter
born in 2005. The plan provided that the children would reside with Father from Monday
evening until Wednesday evening, with Mother for the remainder of the weekdays, and would
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alternate weekends between the parents. The parenting plan also included a standard parenting
time schedule for holidays and vacations. Mother was designated the residential parent while the
children resided with her and Father was the residential parent while the children resided with
him.
{¶3} In September 2009, Mother filed a motion to terminate the shared parenting plan
and to reallocate parental rights and responsibilities. As Mother later elaborated at the hearing,
her motion was based on allegations that there had been a significant breakdown in the parties’
communication and cooperation about the children during the prior school year. Mother asserted
that the midweek transitions between the parents’ homes during the prior school year had
become too disruptive for their young children and, as a result, the children were suffering
emotionally and academically. In addition, Mother described increasing conflict and volatility
when interacting with Father some of which occurred in front of the children. Consequently,
Mother argued it was in the children’s best interests to modify Father’s midweek parenting time.
{¶4} Following an evidentiary hearing, the magistrate concluded that the children were
adversely impacted in part due to the midweek transitions between their parents’ homes. The
magistrate specifically emphasized the communication problems between the parents, Father’s
sometimes “dictatorial” attitude, and Father’s practice of confiscating the children’s clothing
when he decided it was unsuitable rather than communicating with Mother to resolve the
problem. The magistrate declined to terminate shared parenting but found that the shared
parenting plan should be modified so as to eliminate the school-week overnight companionship
with Father. Accordingly, the magistrate recommended that the children would reside with
Mother throughout the school week and Father would have parenting time two evenings a week
and on alternating weekends.
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{¶5} Although there were numerous contempt allegations by Mother and Father, the
only contempt finding now at issue is Mother’s claim that Father violated the vacation provision
of the divorce decree by keeping the children for the week beginning August 23, 2010. The
magistrate found that Father had violated the terms of the decree because he did not give Mother
the requisite 30 days’ notice for a one-week vacation and because the school year began that
week and the decree did not permit vacation time with the children during the school year.
{¶6} Father timely objected to the magistrate’s decision. The trial court ultimately
overruled his objections and ordered that the shared parenting plan be modified as the magistrate
recommended. The trial court found that there had been a change in the children’s circumstances
and that a reduction in Father’s midweek parenting time was necessitated by the children’s best
interests.
{¶7} The trial court also found Father in contempt for violating the vacation provision
of the decree and ordered him to serve three days in jail. The trial court further ordered that
Father could purge himself of the contempt by forfeiting two weekends of parenting time with
the children and by paying a portion of Mother’s attorney fees. Father appeals and raises four
assignments of error.
ASSIGNMENT OF ERROR I
THE COURT ABUSED ITS DISCRETION BY FINDING A CHANGE IN THE
CIRCUMSTANCES OF THE CHILDREN PURSUANT TO [R.C. 3109.04]
BASED PRIMARILY, IF NOT SOLELY, ON THE INADMISSIBLE
HEARSAY AS CONTAINED IN THE GUARDIAN AD LITEM’S REPORT
AND/OR IN FINDING THAT A MODIFICATION OF THE PARENTING
TIME SCHEDULE WAS IN THE CHILDREN’S BEST INTEREST AND/OR
IN FINDING THAT THE HARM FROM CHANGING THE SCHEDULE WAS
OUTWEIGHED BY THE ADVANTAGES OF THE CHANGE, AS EACH OF
THESE INDIVIDUAL FINDINGS WERE CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE[,] WHICH DICTATED THAT THE
CHILDREN WERE WELL ADJUSTED TO THEIR WEEKLY PARENTING
TIME SCHEDULE AND THERE WAS NO CHANGE IN CIRCUMSTANCE
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TO WARRANT A MODIFICATION OF THE PARENTING TIME SCHEDULE
AND THAT ANY CHANGE WAS NOT IN THE CHILDREN’S BEST
INTEREST.
{¶8} In his first assignment of error, Father raises several arguments. First, he argues
that the trial court erred in basing its finding that there had been a change in the children’s
circumstances on hearsay evidence that was presented through the testimony and report of the
guardian ad litem, who had no first-hand knowledge of the facts she relayed to the court.
Alternatively, he asserts that the evidence did not support the trial court’s findings that there had
been a change in the children’s circumstances, and/or that the reduction in Father’s parenting
time was necessary to serve the children’s best interests. We will address each argument in turn.
Change in Circumstances and Hearsay Evidence
{¶9} Father first argues that the trial court erred in basing its finding that there had
been a change in the children’s circumstances on inadmissible hearsay evidence. The parties do
not dispute that, before the trial court could modify Father’s parenting time with his children, it
was required to find that there had been a change in the circumstances of the children or either
parent. See R.C. 3109.04(E)(1)(a); Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M,
2009-Ohio-3787, ¶ 23 (holding that, when shared parenting continues but there is a significant
modification in the allocation of parenting time between the parents, the modification must
comply with the requirements of R.C. 3109.04(E)(1)(a)). A sufficient change in circumstances
“must be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger, 77
Ohio St.3d 415, 418 (1997). R.C. 3019.04(E)(1) also “implies more than changes which
typically occur with the passage of time.” Averill v. Bradley, 2d Dist. No. 18939, 2001 WL
1597881, *3 (Dec. 14, 2001).
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{¶10} Over Father’s objections, Mother presented evidence through the testimony and
report of the guardian ad litem about what the twins, their teachers, and their school counselor
had told the guardian about the twins’ stress and difficulties they had experienced during the
prior school year, that the twins and school personnel attributed to the midweek transitions
between their parents’ homes. Father argues that the trial court erred in admitting these out-of-
court statements of the children and school personnel because the trial court did not interview the
children in camera, nor did the teachers or other school personnel testify at the hearing. Instead,
the statements were offered through the report and testimony of the guardian ad litem. Father
asserts that the admission of this evidence was reversible error because he had no opportunity to
seek elaboration or explanation of the out-of-court statements or to challenge their credibility.
{¶11} We agree with Father that a trial court may not rely on hearsay evidence as the
factual basis upon which to find a change of circumstances. See In re O.H., 9th Dist. No. 25761,
2011-Ohio-5632, ¶ 24-25 (holding that, although out of court statements in the guardian’s report
may be admitted to explain the course of her investigation and basis for her recommendation,
they cannot be admitted to prove the truth of the matter asserted in those statements). Sup.R. 48
explicitly provides that the role of the guardian ad litem is to “assist a court in its determination
of a child’s best interest” by providing the court with relevant information and “an informed
recommendation” about the children’s best interest. Sup.R. 48(B) and (F). See also R.C.
3109.04(F)(2)(e) (the role of the guardian ad litem is to provide the court with a
“recommendation” about the children’s best interests); Loc.R. 34.03 of the Court of Common
Pleas of Summit County, Domestic Relations Division (the guardian ad litem’s role is to “assist”
the court “in determining the best interest of the child(ren)” by making a “comprehensive
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assessment of the parenting issues related to the allocation of parental rights and
responsibilities.”).
{¶12} We recognize that, given the role of the guardian ad litem, her report and
testimony could at times include out-of-courts statements of people that she interviewed. The
guardian ad litem is required by Sup.R. 48(D)(13) to interview the parties, the children, and
school personnel and to include relevant information in her report1, which may include some of
the information that she learned from those people. See also R.C. 3109.04(F); Loc.R. 34.03 of
the Court of Common Pleas of Summit County, Domestic Relations Division. The intended
purpose of the guardian ad litem gathering that information, however, is not to offer evidence to
the court of the facts that she gathered but to explain the basis for her recommendation. In other
words, when a guardian ad litem relays what a person told her, it is not for the purpose of
establishing the truth of the matters relayed. Rather, it is for the purpose of describing the
investigatory process of the guardian ad litem and the matters which may have influenced her
opinion as to the best interests of a child.
{¶13} Given the guardian’s role and the requirements that she explain her investigation
and the basis for her recommendation, her report and testimony may necessarily include
information about what other people told her. Those out-of-court statements do not become
inadmissible “hearsay,” however, unless they are “offered in evidence to prove the truth of the
matter asserted.” Evid.R. 801(C). For example, an out-of-court statement offered simply to
prove that the statement was made is not hearsay. State v. Gillespie, 2d Dist. No. 24456, 2012-
1
For ease of discussion and because the guardian ad litem was a female in this case, we
refer to the guardian ad litem in the feminine.
7
Ohio-1656, ¶ 54. Likewise, the statements do not constitute hearsay if they fall within a
recognized exception to the hearsay rule. Evid.R. 801(D), 803, and 804(B); McPherson v.
Goodyear Tire and Rubber Co., 9th Dist. No. 21499, 2003-Ohio-7190, ¶ 12. See also State v.
McRae, 8th Dist. No. 96253, 2011-Ohio-6157, ¶ 18; State v. McGrapth, 10th Dist. No. 11AP-
117, 2011-Ohio-6130, ¶ 8-9 (Out-of-court statements offered by police officers and other
investigators that simply explain the course of their investigation, such as why they decided to
investigate a particular suspect, also fall outside the hearsay rule.). Similarly, a guardian ad litem
is permitted to testify about out-of-court statements to explain the course of her investigation or
explain why she reached her ultimate conclusion about the best interests of the children. In re
O.H., 2011-Ohio-5632, at ¶ 24. However, this Court is unaware of any legal authority that
permits the guardian ad litem to offer evidence of “facts” about which she has no first-hand
knowledge. In fact, Evid. R. 602 explicitly requires that a witness testify only to matters about
which she has first-hand knowledge. Moreover, unlike R.C. 2151.414(D)(1)(b), which
authorizes the guardian ad litem in a juvenile permanent custody hearing to give hearsay
testimony about the children’s wishes, R.C. 3109.04(F) does not similarly authorize the guardian
ad litem in domestic cases to testify about the children’s wishes. Instead, R.C. 3109.04(F)(1)(b)
provides that the court will ascertain the children’s wishes by questioning them directly in
camera.
{¶14} We are mindful that the unique role of a guardian ad litem places the parties in a
position where a trial court is exposed to potential hearsay. Thus, it is critical that the trial court
distinguish between what may be viewed as an established fact as opposed to information which
is merely a narrative explanation that provides a foundation for a guardian ad litem’s opinion. In
this case, although the guardian ad litem was permitted to testify about information that she
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received from other people that merely explained her investigation and the basis of her best
interest recommendation, her testimony about those statements was not admissible to prove “the
truth of the matter asserted.” Id.; Evid.R. 801(C). Thus, although the guardian ad litem could
properly discuss the course of her investigation, none of the persons with whom she spoke were
present at the hearing and she had no firsthand knowledge of the matters that were relayed to her.
Consequently, reliance upon the report or testimony as establishing these things as fact would be
improper. In re O.H. at ¶ 25, quoting State v. Richcreek, 196 Ohio App.3d 505, 2011–Ohio–
4686, ¶ 22 (6th Dist.) (“‘[w]here the facts to be proven at trial and the substantive content of an
out-of-court statement coincide, it can be presumed that the proponent is offering the statement
for its truth.’”); In re Sypher, 7th Dist. No. 01–BA–36, 2002 WL 378333, *3 (Mar. 11, 2002)
(the trial judge, as fact finder, commits error by relying on inadmissible hearsay statements to
make factual findings or reach the ultimate conclusion in the case).
{¶15} Here, Mother was seeking to admit the out-of-court statements of the twins, their
teachers, and the school counselor for the purpose of proving the truth of what they said, i.e., that
the children’s school performance was suffering and they were experiencing stress because they
were residing with Father for part of the school week. However, the teacher and school
counselors were not witnesses and the guardian ad litem did not witness the events that were
related to her by these individuals.
{¶16} Although hearsay was admitted at the hearing, we disagree with Father’s
suggestion that the trial court relied upon the hearsay in determining that there was a change in
circumstances. We note that Father did not specifically object to the magistrate’s decision on the
basis that the change of circumstances evidence was established through hearsay. Instead, he
argued that a change of circumstances finding was against the manifest weight of the evidence.
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In overruling Father’s objection to the weight of the evidence supporting the change in
circumstances, the trial court merely stated:
Father’s ninth Objection is overruled. There has been a change in the children’s
circumstances and the Court has considered the relevant statutory factors and
determines that a change in parenting time is in the children’s best interest.
Gunderman v. Gunderman., 2009-Ohio-3787.
{¶17} Thus, there is no clear demonstration in the court’s consideration of Father’s
change of circumstances objection that the trial court did, in fact, base its conclusion that there
had been a change in circumstances on the hearsay evidence.
{¶18} However, we acknowledge that the trial court may have suggested elsewhere in
its judgment that the hearsay evidence was properly considered by the magistrate, as it noted in
its statement of facts that the magistrate’s finding of a change in circumstances was based on
evidence in the guardian’s report that the midweek transitions between the parents’ homes “was
creating some difficulties for the children particularly with respect to school.” The guardian had
not testified about any of her own observations of the children, but only about what others had
told her about the twins’ problems at school. In addition, the trial court overruled Father’s more
general objection to the admission of the hearsay evidence.
{¶19} Nevertheless, even if the trial court may have considered hearsay evidence, we
conclude that the outcome of the case was not affected because there were sufficient facts
adduced at the trial, through properly admitted evidence, to establish that a change in
circumstances had occurred.
Admissible Evidence of Change in Circumstances
{¶20} Although R.C. 3109.04(E)(1) does not enumerate the types of “circumstances”
that the trial court may consider, “[o]bviously, [those circumstances] may include any of the
particular circumstances identified in paragraph (F)(1)(a)-(j) of that section.” Averill, 2001 WL
101597881, *3. Those circumstances explicitly include the children’s interaction with their
parents; their adjustment to home, school, and community; and each parent’s facilitation of, or
interference with, the other’s parenting time. R.C. 3109.04(F)(1)(c), (d), and (f) and (i). A
change of circumstances can also include a breakdown in communication between the parents
and their inability to communicate and cooperate. See, e.g., Milner v. Milner, 10th Dist. No.
99AP-13, 1999 WL 1139965, *3 (Dec. 14, 1999) * 3 (affirming trial court’s finding of a
sufficient change of substance based on “‘the parties’ behavior and unwillingness to comply with
the terms and spirit of the shared parenting plan[.]”); Gomez v. Gomez, 7th Dist. No. 08 NO 356,
2009-Ohio-4809, ¶ 21-34 (citing refusal of mother to communicate with father and extreme
volatility requiring police intervention); Headley v. Headley, 11th Dist. No. 99-A-0049, 2000
WL 1458961, *5 (Sept. 29, 2000) (holding that the requisite change was demonstrated by the
mother’s hostile and controlling behavior that interfered with the father’s visitation rights).
{¶21} In this matter, the record contains non-hearsay testimony from which the trial
court could properly conclude that a change of circumstances existed. Both parties testified as to
their own observations of the difficulties that children were experiencing due to the midweek
moves between their parents’ homes. Both parties also described circumstances which indicated
increasing volatility between them including a number of instances where police were called. In
addition, there was admissible evidence reflecting a breakdown in the parents’ communication
and cooperation regarding the children and that the children were suffering because of it.
{¶22} According to Mother, the conflict and breakdown in communication became a
problem for the children during the 2009-2010 school year. Mother filed her motion at the end
of September, one month after Father had allegedly violated the vacation provision of the decree
by keeping the children for one week at the beginning of the school year without giving her any
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notice. By the time of the hearing the following summer, each parent had filed numerous
contempt motions, alleging that the other had violated various terms of the decree. Each parent
had also called the police due to the heightened conflict between them during exchanges of the
children. In fact, the conflict had become so problematic during exchanges that Mother obtained
a civil protection order after Father allegedly had threatened and grabbed her.
{¶23} According to Mother, her face-to-face communications with Father had become
antagonistic. She attempted to communicate in writing; however, Father never responded to her.
Father conceded that he did not communicate with Mother or with the twins’ school. He
assumed that they would contact him if they needed to. Moreover, there was also ample
evidence that the children were suffering as a result of this breakdown in communication
between the parents. In addition to conflicts occurring in front of the children, Mother related
that the children’s homework assignments often fell through the cracks because they would
receive assignments at the beginning of the week, but Father would not communicate with
Mother or send projects that had been started at his house to be completed later in the week at
Mother’s home.
{¶24} There was considerable testimony concerning intense conflict that had developed
with respect to the children’s clothing when the children were going back and forth from the
parties’ respective homes. The parties offered testimony concerning several incidents that
happened in the children’s presence. It was not disputed that Father often disapproved of the
clothing that Mother provided for the children, claiming that some of the clothing was ill-fitting
or not age-appropriate. Rather than communicating his concerns to Mother to attempt to resolve
the issue, or simply providing different clothing for the children to wear while they resided with
him, Father would confiscate the clothing he found objectionable and refuse to return it. At the
12
time of the hearing, Father admitted that he had shoes and clothing in the basement of his home
that, according to him, did not fit the children. He had admittedly sent the children to school
and/or back to Mother’s house without clothing items that included gym shoes, winter coats, and
a t-shirt for which the twin daughter had particular affection.
{¶25} Father’s behavior concerning the children’s clothing had once necessitated police
involvement and occurred while Mother was picking the children up from Father’s home.
Mother testified that Father would not allow her to take the children home in the clothing that
they were wearing, because it did not fit properly. He would not release the children to her until
she went back to her home and brought different clothing to his home. Mother refused to go
back home to get more clothing and ultimately police were called.
{¶26} Significantly, the ongoing conflict was causing the children anxiety, as the
children feared that any clothing item worn to Father’s home could be confiscated. Mother
further testified that Father had inappropriately expressed his disapproval of the clothing in the
children’s presence, and that he had made disparaging remarks to one of them about her weight.
{¶27} Mother described Father as rigid and controlling and unwilling to cooperate with
her about the children. She gave numerous examples of how everything had to be his way and
that he often made unilateral decisions about the children. Assuming the trial court found her
testimony to be credible, there was additional evidence which corroborated some of Mother’s
claims. The guardian ad litem and the family court services evaluator also testified about their
observations of Father. Both suggested that he was rigid and tended to focus on what he wanted
for his children, not necessarily what was reasonable, or in their best interests. Father admitted
during his own testimony that he did not communicate with Mother and that he made unilateral
decisions without her involvement. Father acknowledged that he had kept the children’s clothing
13
but that there was no point in returning it to Mother because it did not fit. It was further
apparent from his testimony that he was not willing to work with Mother to resolve these
problems, unless the resolution was accomplished on his terms.
{¶28} Consequently, after reviewing only the evidence that was properly before the trial
court, there was more than ample admissible evidence demonstrating a sufficient change in the
children’s circumstances that arose since the parties’ divorce.
Best Interests of the Children
{¶29} Finally, Father argues that the trial court’s best interest finding was not supported
by the evidence presented at the hearing. Father essentially reiterates his arguments that there
was no change of circumstances, disputing the evidence that the midweek moves between the
homes of Mother and Father were negatively affecting the children emotionally and
academically.
{¶30} The trial court explicitly indicated in its judgment that it considered all of the best
interest factors set forth in R.C. 3109.04(F)(1). Of particular relevance here, those factors
included the children’s interaction with their parents, their adjustment to home, school, and
community, and each parent’s facilitation of, or interference with, parenting time with the other
parent. R.C. 3109.04(F)(1)(c), (d), and (f) and (i). As explained already, the trial court had
substantial admissible evidence before it to support its conclusion that moving back and forth
between the parents’ homes during the school week was too disruptive to the children’s lives.
The evidence further demonstrated that those problems were exacerbated by Father’s refusal to
communicate and cooperate with Mother regarding the children. There was also evidence before
the court to support a conclusion that the children’s stress about their problems with missing
homework and Father confiscating their clothing could be eliminated if they resided with Mother
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during the school week and went to school from her home each day. Father has failed to
demonstrate that the trial court’s best interest finding was against the manifest weight of the
evidence.
{¶31} Because there was substantial testimony from first-hand observations of the
witnesses to demonstrate that there had been the requisite change in the circumstances of the
children and that it was in the children’s best interest to reside with Mother during the school
week, Father’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT
REMOVING THE GUARDIAN AD LITEM AND REMANDING THE CASE
FOR FURTHER HEARING WITH THE APPOINTMENT OF A NEW
GUARDIAN AD LITEM THAT WOULD BE FAIR TO BOTH PARENTS AND
THAT WOULD PROPERLY REPRESENT THE CHILDREN’S WISHES AND
BEST INTEREST AS HER RECOMMENDATIONS AND TESTIMONY
PRESENTED WERE UNFAIRLY BIASED AGAINST [FATHER] AND/OR
THE TRIAL COURT ABUSED ITS DISCRETION [BY] NOT HOLDING AN
IN CAMERA HEARING SO THAT THE CHILDREN COULD GIVE THEIR
TRUE WISHES AS SAME WERE NOT REPRESENTED BY THE
GUARDIAN AD LITEM AT TRIAL.
{¶32} Through his second assignment of error, Father contends that the trial court erred
by failing to remove the guardian ad litem and/or by failing to conduct an in camera interview of
the children. However, Father did not seek removal of the guardian ad litem in the trial court,
nor did he request that the trial court conduct an in camera interview of the children. He also
failed to raise either of these issues through his objections to the magistrate’s decision, but raises
them for the first time on appeal.
{¶33} Civ.R. 53 (D)(3)(b)(iv) provides:
Except for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Civ.R.
15
53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Civ.R. 53(D)(3)(b).
Because Father did not raise these issues during or prior to the hearing or through his objections
to the magistrate’s decision and he does not argue plain error on appeal, his second assignment
of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING FATHER IN
CONTEMPT FOR VIOLATING THE PARENTING TIME SCHEDULE AS HE
GAVE THE PROPER NOTICE OF THE TIME HE WISHED TO SPEND WITH
HIS CHILDREN AND FATHER DID NOT TRAVEL WITH THE CHILDREN
AS THEY WERE TO SCHOOL EVERYDAY IN A TIMELY FASHION AND
HIS REQUEST WAS CONSISTENT WITH THE PARTIES’ PAST
PRACTICES AND MOTHER OBJECTED TO THE FATHER HAVING THIS
VACATION PARENTING TIME SOLELY TO WITHHOLD SUCH
VACATION TIME FROM FATHER AS THE PAST PRACTICES OF
FATHER’S EMPLOYMENT AND SCHEDULE PROVIDE THAT HE WOULD
HAVE THE CHILDREN FOR VACATION TIME THE FIRST AND LAST
WEEK OF AUGUST.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING PURGE
CONDITIONS ON FATHER THAT HE LOSE TWO WEEKENDS OF
PARENTING TIME WITH THE CHILDREN, OR ESSENTIALLY ONE
MONTH OF WEEKEND TIME, AS THE EVIDENCE AT TRIAL PROVIDED
THAT FATHER KEPT THE CHILDREN FOR TWO DAYS AND THAT HE
PAY THE WIFE’S ATTORNEY’S FEES AND COSTS AS SAID FEES WERE
NOT REASONABLE.
{¶34} This Court will combine Father’s third and fourth assignments of error because he
argues them jointly. Both of these assigned errors pertain to the trial court finding Father in
contempt for violating the vacation provision of the parties’ 2008 shared parenting plan because
Father failed to give Mother the requisite 30-day notice to keep the children for a one-week
vacation and because the vacation did not occur while the children were on recess from school.
{¶35} The trial court ordered Father to serve three days in jail. The trial court further
ordered that Father could purge himself of the contempt by making up Mother’s lost parenting
16
time by forfeiting two weekends with his children and by paying a portion of Mother’s attorney
fees.
{¶36} The trial court imposed a civil contempt sanction because its primary purpose was
not to punish Father but to compensate Mother for her additional attorney fees and time lost with
the children due to Father’s violation of the divorce decree. See Forrer v. Buckeye Speedway,
Inc., 9th Dist. No. 07CA0027, 2008-Ohio-4770, ¶ 15.
{¶37} A challenge on appeal from a civil contempt finding becomes moot when a party
purges himself of the contempt. Nagel v. Nagel, 9th Dist. No. 09CA009704, 2010-Ohio-3942, ¶
28. Mother asserts that the contempt issue is now moot.
{¶38} During the pendency of this appeal, Mother supplemented the record with
evidence that Father had purged himself of the contempt by forfeiting the two weekends with the
children and paying the attorney fees. Father does not dispute that he has purged the contempt
citation, but contends that the issue is not moot because the trial court’s civil contempt finding
could subject him to more severe sanctions in any future contempt proceedings. Father cites no
legal authority to support his argument, however, and has failed to demonstrate that this Court
should depart from its prior precedent in Nagel. Because Mother has provided this Court with
undisputed evidence that Father has purged himself of the contempt citation by surrendering the
two weekends with his children and paying the attorney fees, the contempt issue is moot and this
Court may not review it. See id. Consequently, this Court will not address Father’s third and
fourth assignments of error.
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III.
{¶39} Father’s first and second assignments of error are overruled and his remaining
assignments of error were not addressed because they are moot. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
MOORE, J.
CONCUR.
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APPEARANCES:
RONALD T. GATTS, Attorney at Law, for Appellant.
LESLIE S. GRASKE, Attorney at Law, for Appellee.
CINDY ZANIN, Guardian ad Litem.