D.C. v. M.M. ( 2021 )

[Cite as D.C. v. M.M., 2021-Ohio-3851.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
D.C. Court of Appeals No. H-21-004
Appellee Trial Court No. CIV 2015 00034
v.
M.M. DECISION AND JUDGMENT
Appellant Decided: October 29, 2021
*****
Michele A. Smith, for appellee.
Kenneth R. Bailey and Danielle Kulik, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, M.M., appeals the February 3, 2021 judgment of the Huron
County Court of Common Pleas, Juvenile Division, which terminated the parties’ shared
parenting plan, awarded residential custody to appellee, D.C., and found appellant in
contempt. For the reasons set forth herein, we affirm the juvenile court’s judgment.
Facts and Procedural Background
{¶ 2} In 2013, A.C. was born to unwed parents, mother-appellant, M.M., and
father-appellee, D.C. In 2015, a shared custody plan was implemented between the
parties and provided that each be designated residential parent and that custody be on
alternating full weeks from Sunday to Sunday.
{¶ 3} On April 28, 2016, appellee filed a motion to show cause. On May 25,
2016, appellant filed a motion to modify parenting time. On September 13, 2016, a
consent judgment entry was filed and the motions were dismissed. The shared parenting
order was continued.
{¶ 4} Nearly four years later, on July 27, 2020, appellant filed a motion for change
of parental rights and responsibilities requesting that the shared parenting plan be
terminated and that she be named residential parent and legal custodian. Appellant
claimed that shared parenting was no longer in A.C.’s best interests due to the parties’
continuing disagreements over parenting time, appellee’s alcohol use, appellee’s inability
to adhere to the parenting plan due to his not having a valid driver’s license, and
appellant’s May 20, 2020 act of withholding appellee’s weekly parenting time.
{¶ 5} On August 21, 2020, appellee filed a motion for contempt alleging that
appellant failed to inform him of, and allow A.C. to attend, a father-daughter dance, that
appellant withheld parenting time, and that she fails to communicate regarding significant
matters pertaining to A.C.
2.
{¶ 6} A hearing on the motions was held on January 13, 2021. Appellant and
appellee testified as well as appellant’s father and appellee’s cousin. The focus of the
testimony centered on the parties’ disagreements regarding A.C.’s school performance
and related attention issues and treatment options and appellee’s past and perceived
current alcohol misuse and resulting driver’s license suspension.
{¶ 7} In the trial court’s February 3, 2021 judgment entry, the court, after
summarizing the evidence presented during the hearing, concluded that shared parenting
was no longer in A.C.’s best interests. Reaching its decision, the court reviewed the
factors under R.C. 3109.04. The court first found that the parties lacked the ability to
cooperate and make joint decisions, R.C. 3109.04(F)(2)(a), and further determined that
appellant failed to encourage the sharing of love and affection between appellee and
A.C., R.C. 3109.04(F)(2)(b). The court then reviewed the factors under R.C.
3109.04(F)(1), as if no prior shared parenting plan had existed. R.C. 3109.04(E)(2)(d).
The court found that appellee had faithfully followed the shared parenting plan “even
when he believed that to do so would be unjust or unfair.” As to appellant, the court
stated that she unilaterally decided to deny appellee his court-ordered visitation in May
2020, based on her belief that appellee had been drinking and driving; a claim that
appellee denied. The court then found that appellee would be more likely to honor and
facilitate parenting time. R.C. 3109.04(F)(1)(f). The court ordered that appellee be
3.
residential parent and legal custodian and granted appellant parenting time by continuing
the alternating, Sunday to Sunday weekly parenting schedule.
{¶ 8} The court further found that appellant was in contempt of court for failing to
comply with the shared parenting plan and awarded appellee a compensatory additional
week of parenting time. Appellant was ordered to pay appellee’s attorney fees and the
costs relating to the contempt prosecution. This appeal followed.
Assignments of Error
1. The trial court erred in evaluating the facts admitted into
evidence, pursuant to R.C. 3109.04.
2. The trial court abused its discretion in failing to provide purge
conditions for contempt and punishing contempt by terminating the shared
parenting plan.
Analysis
{¶ 9} Appellant’s first assignment of error challenges the court’s decision to name
appellee A.C.’s residential parent and legal custodian. This court reviews a trial court’s
conclusion regarding whether a change in custody is in a child’s best interests for an
abuse of discretion. Jones v. Jones, 6th Dist. Lucas No. L-10-1044, 2012-Ohio- 2225, ¶
13, citing Sayre v. Hoelzle-Sayre, 100 Ohio App.3d 203, 210, 653 N.E.2d 712 (3d
Dist.1994).
4.
{¶ 10} Relevant under the present facts:
(c) The court may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under division (D)(1)(a)(i) of
this section 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.
The court may terminate a prior final shared parenting decree that includes
a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this
section if it determines, upon its own motion or upon the request of one or
both parents, that shared parenting is not in the best interest of the children.
If modification of the terms of the plan for shared parenting approved by
the court and incorporated by it into the final shared parenting decree is
attempted under division (E)(2)(a) of this section and the court rejects the
modifications, it may terminate the final shared parenting decree if it
determines that shared parenting is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting decree
under division (E)(2)(c) of this section, the court shall proceed and issue a
modified decree for the allocation of parental rights and responsibilities for
the care of the children under the standards applicable under divisions (A),
(B), and (C) of this section as if no decree for shared parenting had been
granted and as if no request for shared parenting ever had been made.
5.
R.C. 3109.04(E)(2).
{¶ 11} In determining whether to terminate a shared parenting decree, a court is
required to determine the best interest of the child as provided in R.C. 3109.04(F):
(1) In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and responsibilities
for the care of children or a modification of a decree allocating those rights
and responsibilities, the court shall consider all relevant factors, including,
but not limited to:
(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;
6.
(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 any criminal
offense involving any act that resulted in a child being an abused child or a
neglected child; whether either parent, in a case in which a child has been
adjudicated an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act that is the
basis of an adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or pleaded
guilty to a violation of section 2919.25 of the Revised Code or a sexually
oriented offense involving a victim who at the time of the commission of
the offense was a member of the family or household that is the subject of
the current proceeding; whether either parent or any member of the
household of either parent previously has been convicted of or pleaded
guilty to any offense involving a victim who at the time of the commission
of the offense was a member of the family or household that is the subject
7.
of the current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe that
either parent has acted in a manner resulting in a child being an abused
child or a neglected child;
(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.
(2) 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 division (F)(1) of this section, the
factors enumerated in section 3119.23 of the Revised Code, and all of the
following factors:
(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;
8.
(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.
{¶ 12} As set forth above, in terminating the shared parenting plan the trial court
specifically found that the parties were not able to communicate, cooperate, or make joint
decisions. R.C. 3109.04(F)(2)(a). The court then considered the factors under R.C.
3109.04(F)(1) in finding that appellee would be more likely to facilitate court-appointed
parenting time; the court noted appellant’s failure to comply with the court’s parenting
order. R.C. 3109.04(F)(1)(f). The court then concluded that it would be in A.C.’s best
interests to have appellee named residential parent and legal custodian.
{¶ 13} Appellant’s chief argument, is that the court gave too much weight to the
fact that appellant withheld visitation for a week due to her belief that appellee had been
drinking and driving with A.C. in his vehicle. Appellant contends that, had she been
afforded purge conditions, as will be further discussed below, the trial court may have
found sufficient evidence to make an alternate determination. Appellant further argues
that the court improperly considered R.C. 3109.04(F)(1)(i), in that she did not
“continuously and willfully” deny appellee parenting time.
9.
{¶ 14} The trial court’s judgment entry relevantly found:
6. The parent to more likely to honor and facilitate court-approved
parenting time rights. Mr. [C.] has faithfully honored the parenting time
schedule approved by the Court in the 2015 shared parenting decree, even
when he believed that to do so would be unjust or unfair. * * *. Although
compliant for a majority of the time since the initiation of the shared
parenting plan, Ms. [M.] unilaterally decided to prevent Mr. [C.] from
exercising his court-ordered parenting time in May 2020. * * *.
***
9. The parent more likely to honor and facilitate court-appointed
parenting time rights or visitation and companionship rights. As set forth in
Paragraph 6, Mr. [C.] has demonstrated an ability to honor and facilitate
Ms. [M.]’s parenting time, even when he believes it to be unjust or unfair.
Ms. [M.], on the other hand, will be found in contempt for her interference
with Mr. [C.]’s mandated parenting time in May 2020.
10. 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.
As described in detail in Paragraph 6, Ms. [M.] willfully denied Mr. [C.]’s
right to parenting time in accordance with an order of the court for one
10.
week in May 2020. There is no evidence, however, that she has continued
to interfere with his parenting time, and the parties have since observed the
parenting time schedule set forth in their shared parenting plan.
{¶ 15} The trial court’s numbered paragraphs generally follow the statutory
language of R.C. 3109.04(F)(1). Most notably, under paragraph 10, the trial court
properly considered R.C. 3109.04(F)(1)(i), and concluded that appellant had willfully—
but not continuously—denied appellee’s right to parenting time. Appellant implies that
the trial court was required to find that appellant had “continuously and willfully” denied
appellee parenting time before terminating the shared parenting plan. That is incorrect.
When determining whether shared parenting is in the child’s best interest under R.C.
3109.04(F)(2), the trial court was required to “consider” all relevant factors, including but
not limited to the factors of R.C. 3109.04(F)(1). That is exactly what the trial court did.
{¶ 16} After careful review of the proceedings below, we cannot find that the trial
court abused its discretion in terminating the shared parenting plan and awarding legal
custody to appellee. Importantly, the trial court had the advantage of observing and
assessing the credibility of the parties. Thus, appellant’s first assignment of error is not
well-taken.
{¶ 17} In her second assignment of error, appellant argues that the trial court erred
by finding her in contempt of the shared parenting order without affording purge
11.
conditions. Appellant also claims that she was “punished” for the contempt by the
court’s termination of the shared parenting plan.
{¶ 18} A court’s finding that a party is in contempt of a shared parenting order is
reviewed under an abuse of discretion standard. In re M.O.E.W., 6th Dist. Ottawa No.
OT-18-030, 2019-Ohio-5364, ¶ 9, citing State ex rel. Cincinnati Enquirer v. Hunter, 138
Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 21. Generally, a civil contemptor must
be provided the opportunity to purge the contempt. Id. at ¶ 14.
{¶ 19} Where a party fails to comply with a parenting time order, the following
also applies:
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 parenting time or visitation to the person whose right of
12.
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. Any compensatory parenting time or visitation awarded under this
division shall be included in an order issued by the court and, to the extent
possible, shall be governed by the same terms and conditions as was the
parenting time or visitation that was affected by the failure or interference.
R.C. 3109.051(K).
{¶ 20} Under the clear language of the above-quoted statute, the trial court was
required to assess attorney fees and costs related to the prosecution of the contempt action
to appellant; thus, the court did not err in failing to provide appellant the opportunity to
purge such fees and costs. See. Patterson v. Patterson, 5th Dist. Stark No.
2002CA00167, 2003-Ohio-517, ¶ 15; Hart v. Spenceley, 12th Dist. Butler No. CA2011-
08-165, 2013-Ohio-653. ¶ 21. Further, the award of compensatory parenting time is
similarly provided for in the statute and was within the court’s inherent authority. The
award did not require purge conditions. See Rapp v. Pride, 12th Dist. Butler No.
CA2009-12-311, 2010-Ohio-3138, ¶ 22-27. Purge conditions are generally offered in
instances where additional sanctions are imposed. See Goffstein v. Goffstein, 1st Dist.
Hamilton No. C-140010, 2014-Ohio-5060 (compensatory visitation as part of conditions
purging a nine-day incarceration order); Canty v. Canty, 10th Dist. Franklin No. 92AP-
13.
664, 1992 WL 344969, *1 (compensatory visitation ordered in lieu of a ten-day
incarceration order).
{¶ 21} We fail to see, and appellant does not explain, by what means she would
have purged herself of her failure to comply with the court-ordered shared parenting plan.
We further dismiss appellant’s assertion that the shared parenting plan was terminated as
a result of the contempt finding. Accordingly, we find that the trial court did not abuse
its discretion when it found appellant in contempt of the shared parenting plan and
ordered compensatory visitation and the payment of fees and costs without providing
purge conditions. Appellant’s second assignment of error is not well-taken.
Conclusion
{¶ 22} Based on the foregoing, we affirm the February 3, 2021 judgment of the
Huron Country Court of Common Pleas, Juvenile Division. Pursuant to App.R. 24,
appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
14.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.