G.P. v. L.P.

[Cite as G.P. v. L.P., 2022-Ohio-1373.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
G.P. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
L.P (KNA N.M.M) : Case Nos. 2021 CA 0011
: 2021 CA 0013
: 2021 CA 0014
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2014 JUCST 74
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 25, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ANTHONY W. GRECO PRIYA D. TAMILARASAN
SUSAN M. SURIANO 175 S. Third Street
4945 Bradenton Avenue Suite 200
Suite 100 Columbus, OH 43215
Dublin, OH 43017
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 2
Wise, Earle, P.J.
{¶ 1} This matter includes three consolidated cases. Plaintiff-Appellant G.P.
appeals the August 23, 2021, September 7, 2021, and September 23, 2021 judgment
entries of the Morrow County Court of Common Pleas, Juvenile Division. Defendant-
Appellee is L.M., kna N.M.M.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The history of this matter is extensive as the parties have been involved in
constant litigation since 2015. This case began as a parentage action. G.P. ("Father") and
N.M.M. ("Mother") are the parents of four minor children, the first born in August 2005 and
the last born in March 2013. Mother and Father were never legally married.
{¶ 3} Mother is originally from Ohio. In 2004, Mother and Father lived in Tennessee
where Father is from, and lived close to Father's family. All of the minor children were
born in Tennessee.
{¶ 4} In August, 2013, Mother and Father moved their family to Hawaii so Father
could start Island Metals, his metal-roof manufacturing business. In January 2014,
following an alleged incident of physical abuse against Mother by Father, Mother left
Hawaii with the children and moved in with her parents in Morrow County, Ohio.
{¶ 5} Some litigation followed surrounding the proper venue for the matters of
allocation of parental rights and responsibilities and child support. In March and April of
2015, a trial was held in in the Morrow County Court of Common Pleas Juvenile Division.
On June 12, 2015, the magistrate issued an opinion finding in part that Morrow County
was the proper venue for the matter and further finding Father should pay $198.58 in child
support per child, per month. Father filed objections to the magistrate's decision and the
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 3
trial court adopted the magistrate's decision. Father appealed and on November 17, 2016,
this court affirmed. G.P. v. L.M. 5th Dist. No. 16CA0005, 2016-Ohio-7955.
{¶ 6} On October 23, 2018, Mother and Father filed an Agreed Entry as to the
reallocation of parental rights and responsibilities wherein Mother was named the
residential and custodial parent. The parties were unable to reach an agreement as to
child support.
{¶ 7} On October 10, 2018, a hearing was held on mother's motion to modify child
support. At that time, Father's child support obligation was $13,714.83 in arrears. The
magistrate issued a decision on December 11, 2018 finding Father was earning
substantially more than he was in 2014 and setting his gross income at $285,467.66.
Father was ordered to pay a monthly total of $4,964.71 for child support. Father objected,
but on March 14, 2019 the trial court confirmed the magistrate's decision. Father did not
appeal.
{¶ 8} Before the trial court confirmed the magistrate's decision, Father filed a
motion on December 21, 2018 for contempt alleging Mother was in violation of the agreed-
upon orders filed on October 23, 2018. His complaints centered on his alleged inability to
communicate with the children when they were with mother.
{¶ 9} On April 12, 2019, upon agreement of the parties the magistrate issued an
order finding Mother in contempt for failure to comply with the October 23, 2018 orders
concerning Father's contact with the children. Mother was given the opportunity to purge
her contempt by complying with the conditions set forth in the April 12, 2019 order or face
a fine and up to 30 days in jail. The magistrate set a purge hearing for May 31, 2019, but
due to a clerical error, counsel for Father appeared but counsel for Mother did not. The
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 4
matter was reset for July 29, 2019 but there is no indication in the record that this hearing
took place. Instead, it was addressed at a September 2020 trial.
{¶ 10} On July 12, 2019, Mother filed a Motion to Show Cause against Father for
failure to pay child support as ordered and failing to allow the children telephone contact
with Mother when they were in Father's care. At that point Father's child support obligation
was $81,014.21 in arrears.
{¶ 11} On July 15, 2019, Father filed a motion to reallocate parental rights and
responsibilities including parenting time and further requesting modification of child
support. In his motion Father stated he was selling his business in Hawaii, moving to
Ohio, and that his income would be decreasing significantly. Around the same time,
Father, his wife L.P, and their child moved from Hawaii to Clintonville Ohio, close to
mother's residence.
{¶ 12} On July 25, 2019 Mother filed three motions. The first requested a temporary
restraining order restraining Father from liquidating any assets, including selling his
business. Mother also filed a Motion to Dismiss arguing Father's relocation was not
sufficient cause to allow reallocation of parental rights. Finally, Mother filed a Motion to
Appoint Expert requesting the appointment of a financial forensic expert to examine
Father's finances at Father's expense to determine if Father possessed the funds to
satisfy his child support arrearage.
{¶ 13} On July 31, 2019, following a pretrial/status hearing, the magistrate declined
to enjoin Father from selling his business, but ordered the parties to brief their respective
positions on the issue. The magistrate also appointed a new Guardian Ad Litem (herein
GAL) at the request of the parties.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 5
{¶ 14} A pretrial/status hearing was held on September 19, 2019. The day before,
Father made an arrearage payment of $70,000. His arrearage was therefore reduced to
$17,049.39 as of September 19, 2019. Matters remaining before the court were Mother's
motion for contempt filed July 12, 2019 against Father for failure to pay child support as
ordered, Father's July 15, 2019 motion for reallocation of parental rights and modification
of child support, Mother's motion for appointment of an expert, and her motion for a
temporary restraining order to prevent Father's sale of Island Metals. The parties agreed
to continue the hearing on Mother's motion for contempt for failure to pay child support in
order to give Father the opportunity to pay all arrears and establish consistent child
support payments as ordered. Further, because Father relocated to Ohio, the magistrate
issued temporary orders regarding Father's companionship time.
{¶ 15} On September 20, 2019, the magistrate was advised by the Office of Child
Support that the $70,000 payment made by Father was returned for insufficient funds.
Father was therefore still in arrears in excess of $87,000.
{¶ 16} On October 4, 2019, a pretrial was held and the magistrate issued
supplemental visitation orders.
{¶ 17} On November 26, 2019, Father, through new counsel, filed a Motion to
Enforce Sentence requesting Mother be incarcerated for a period of 30 days and fined
$250.00 for failure to comply with the court's April 12, 2019 orders. Father had purchased
a phone for the children pursuant to the April 12, 2019 orders of the court. He alleged
Mother prevented the children from using the phone to communicate with him while the
children were in her care. Father further alleged Mother had failed to provide a complete
list of medical providers to Father as ordered.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 6
{¶ 18} Also on November 26, 2019, Father filed a motion for a custody evaluation.
The motion requested all parties submit to a psychological testing for purposes of the
evaluation. Father alleged because he was now living in Ohio, minutes away from
Mother's residence, a new evaluation was appropriate.
{¶ 19} In December 2019, Father, his wife, and their child moved to Marengo, Ohio
where they had purchased a home.
{¶ 20} On December 6, 2019, the magistrate ordered the GAL to review Father's
motions and make a recommendation as to modification of the temporary orders.
{¶ 21} On December 12, 2019, Father filed a motion for contempt against Mother
for failing to permit visitation earlier in the month.
{¶ 22} On January 2, 2020 a pretrial was held. Mother's motion to prevent Father
from selling Island Metals was rendered moot as Father had already sold the business.
The magistrate denied Mother's motion for valuation of the business because there had
been testimony less than one year prior as to the value of the company. The magistrate
also issued temporary orders setting limits on discovery and addressing visitation,
exchange of the children for visitation, and conduct of the parties during the children's
extracurricular activities.
{¶ 23} On March 20, 2020 Father filed a Motion for Shared Parenting with a
proposed shared parenting plan and a Motion for an In-Camera Interview of the three
oldest children. On March 26, 2020 Father filed a motion for make-up parenting time. This
motion was denied in temporary orders issued March 30, 2020.
{¶ 24} On May 22, 2020 Mother filed a Motion for In-Camera Interview of Minor
Child, specifically the youngest child. The child was later interviewed by the magistrate
and the GAL.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 7
{¶ 25} On July 15, 2020 Father filed a motion for appointment of separate counsel
for the children due to a potential conflict between the recommendations of the GAL and
the children's wishes.
{¶ 26} An in-camera interview with the trial court, the GAL and the children took
place on July 24, 2020. The magistrate observed the children appeared stressed and
uneasy, with the oldest being visibly upset. The children had just returned from spending
time with Father and expressed a desire to spend more time with Father. Because the
wishes of the children were at odds with the GAL's findings and preliminary
recommendations, the magistrate appointed Attorney William Leber as counsel for the
children and ordered Father to post a sum of $1,600.00 to Leber's office on or before
August 15, 2020. Leber later spoke with the children individually.
{¶ 27} In August 2020 Father's relationship with his two oldest children changed
dramatically when Father served both stepfather T.M. and his oldest child through Mother
with subpoenas at one of the children’s soccer games in front of the children's peers. The
children attend a very small private school where everyone knows everyone else. The
oldest child was so mortified by her Father's choice and its impact she refused to go to
school the following day. T.M. was angered by Father's decision to serve them at the
game as well, approached Father at the game and had words with him.
{¶ 28} Leading up to trial, Father deposed Mother on September 1, 2020 and
Mother deposed Father on September 4, 2020.
September 2020 Trial
{¶ 29} The matter then came before the magistrate for trial on September 24 and
25, 2020. While the parties had filed the above noted barrage of motions, many had been
settled or otherwise disposed of before trial. Five matters remained pending before the
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 8
court for trial, one motion of Mother's and four of Father's, specifically: (1) Mother's July
12, 2019 motion for contempt against Father for failing to pay child support as ordered;
(2) Father's July 15, 2019 motion to reallocate of parental rights and responsibilities; (3)
Father's request to modify child support contained in the same motion; (4) Father's
December 12, 2019 motion for contempt against Mother for failing to permit
visitation/contact in early December 2019 and Father's November 26, 2019 motion to
enforce sentence against Mother for failing to meet her contempt purge conditions; and
(5) Father's March 20, 2020 motion for shared parenting.
Evidence Pertaining to Mother's Motion for Contempt Against Father for Failure to
Pay Child Support as Ordered, and Father's Motion to Modify Child Support
{¶ 30} Matthew Hellman, Administrator of the Morrow County Job and Family
Services Child Support Agency testified that as of the day of trial, Father's child support
order was $4,964.71 per month. As of the same date, Father was $46,773.13 in arrears.
Between January 2020 and August 2020, Father made a single child support payment of
$1,900.00. On September 8, 2020, father made a $950.00 payment.
{¶ 31} When the magistrate questioned Father about his finances, counsel for
Father intervened and stated Father's wife E.P. tended to their financial affairs and
would be testifying. Yet outside of home expenses, E.P. seemed to know very little
about their finances. According to testimony of Father, E.P., and exhibits contained in
the record, Father sold his business in Hawaii for approximately $700,000. As of
September 20, 2019 Father's U.S. Bank account had a balance of $347,442.50. In
November 2019 another $69,199 was deposited into the account for a total of $416,641
in deposits. But in February 2020, the account had a balance of $2,297. Bank records
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 9
submitted by Father were largely redacted making it impossible to determine where the
funds went.
{¶ 32} Father formed a new business in Ohio, Barns and Metal, Inc. E.P. stated
she is not a signatory on the Barns and Metal account, does not balance the checkbook
and does not maintain a profit and loss statement. Instead she testified their accountant
handles these matters. Upon their move to Ohio in July 2019, Father paid $140,000 cash
for a home in Morrow County, spent at least $90,000 renovating the home and hired two
shifts of workers to help. According to E.P. the home was initially in her name only, but
Father's name was later added to the deed. Father then took out a $220,000 mortgage
against the home. None of Father's bank records show where this money went, but E.P.
testified that in April 2020, she invested $120,000.00 in a new business, Dutch Tech, Inc.
E.P. stated she is a 60% owner of Dutch Tech and also the owner of its umbrella company
Brighter Holdings. She further testified Father had nothing to do with Dutch Tech, Inc.,
and that a friend owns the other 40%. She testified she used the $120,000 to buy product.
{¶ 33} Asked where the remaining $100,000.00 from the mortgage went E.P.
claimed closing costs, personal expenses, and attorney fees. E.P. testified Father's gross
income from January to September 22, 2020 was $58,227.46 and his net income was
$13,811.72. She stated they paid roughly $60,000.00 in attorney's fees in this matter and
Father's parents also paid a portion of their attorney's fees. E.P. testified they paid
$80,000 in taxes in 2019. She stated Father's income for 2019 was $3,400 because he
worked very little. Father did not submit 2018 or 2019 individual tax returns.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 10
Evidence Pertaining to Father's Motion for Reallocation of Parental Rights and
Shared Parenting
{¶ 34} Father presented little evidence regarding any changes for the children or
Mother. While Mother did marry and she and the children moved into her husband's
home, the children still attend the same school, participate in the same activities with the
same peers, and reside in the same geographic area. Father did present evidence
regarding change in his own circumstances, specifically his move to Ohio, his marriage
to E.P., and the birth of their daughter. As of the date of trial, Father testified he had no
intention to move back to Tennessee, yet he and his wife maintain a residence in
Tennessee, have Tennessee driver's licenses, and maintain a warehouse for E.P.'s
business in Tennessee.
{¶ 35} The three children old enough to voice an opinion to their attorney and the
GAL as to who they wished to live with stated they desired to stay with Mother. Abundant
evidence was presented regarding the inability of Mother and Father to get along,
communicate, or interact in any constructive way.
Evidence Pertaining to Father's Motion for Contempt Against Mother for Failure to
Permit Visitation or Contact in Early December 2019 and Motion to Enforce
Sentence for Mother's Failure to Meet Purge Conditions
{¶ 36} Per the magistrate's April 12, 2019 order, Mother needed to meet four
conditions in order to purge her contempt. Specifically: (1) provide Father with a schedule
of the children's activities; (2) provide Father with a list of the children's medical providers
and all non-emergency appointments; (3) use Our Family Wizard (OFW), a family
communication application for communication between the parties, and (4) permit
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 11
communication between the children and Father via use of a cell phone provided to the
children by Father.
{¶ 37} Father presented exhibit 12, which contains OFW messages from Father
that Mother never opened or responded to. Mother stipulated to the same. But the exhibit
contained only a fraction of the total communications exchanged in OFW.
{¶ 38} Mother stated the children's extracurricular activities are posted in another
application, TeamSnap, and that Father has accesses to the application. Mother's
exhibit's J and K contain OFW messages giving Father the names of the children's
pediatrician and dentist. Mother further testified the children have unrestricted access to
the telephone provided by Father.
{¶ 39} Father also presented evidence alleging Mother denied him visitation in
December 2019, February 2020, and spring break 2020.
{¶ 40} Mother testified that in December, 2019, one of the children alleged Father
choked him, apparently as a form of discipline. While an investigation took place, Father's
visits were suspended.
{¶ 41} As for February 2020, Mother testified the parties were operating under
temporary orders contained in Mother's exhibit G which required Father to present proof
of mold remediation in his home before overnight visits would resume. Father was to
provide evidence of mold remediation on or before February 7, 2020 and failed to do so.
{¶ 42} Finally, as to spring break 2020, Mother admitted there had been some
confusion on her part as to whose weekend it was and she gave Father makeup visitation
time.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 12
Other Matters Relevant to this Appeal
{¶ 43} Father called his process server, Stephanie Fike, to testify at trial and
counsel for Mother objected to Fike's testimony as not relevant. Counsel for Father
proffered that the evidence would show it was not the service that drove a wedge between
Father and his children, but rather stepfather T.M.'s response to the service. The trial
court sustained Mother's objection to Fike's testimony, finding it irrelevant to any issue
before the court.
Magistrate's November 2020 Decision
{¶ 44} On November 16, 2020, the magistrate issued a 34-page decision finding:
(1) Father failed to demonstrate a change in circumstances which would warrant a change
of residential parent and even if Father had, a change in custody would be contrary to the
best interests of the children; (2) the parties have demonstrated they would be incapable
of executing a shared parenting plan; (3) given the history of the case, Mother's denial of
visitation, while concerning, was not contemptuous as reasonable explanations were
provided and were justified; (4) while Mother should have replied to the OFW messages
presented by Father, most of the messages Mother failed to read or respond to were
unnecessary communications from Father which included attempts to defy court orders
as to the procedure for exchange of the children for visitation, demands for information
Mother previously provided, and demands to send certain clothing with the children
despite the fact Father was not providing financial support for the children; (5) Mother met
the 2019 purge conditions and even if that were not true, it would be inequitable and not
within the children's best interests for Mother to serve time in jail; (6) Father presented no
evidence demonstrating he was unable to make child support payments as ordered and
was therefore in contempt for failing to pay child support as ordered; (7) Father provided
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 13
no real evidence of his income, appeared to be voluntarily underemployed, failed to
provide enough information for the magistrate to estimate Father's potential income in
Ohio if fully employed and therefore his motion to modify child support was denied; (8)
Father was found in contempt for failing to pay child support as ordered.
{¶ 45} The magistrate ordered Father to make full monthly payments for his child
support for November and December of 2020 and January 2021, pay all child support
arrears by January 31, 2121, and establish a bank account from which child support could
be withdrawn. A purge hearing for Father was set for February 22, 2021. The magistrate
further set a visitation schedule per recommendation of the GAL which included a phased-
in return to Local Rule 2 visitation. Per the judgment entry "[p]rogress from one phase to
the next would be determined by the success of the previous month and per interaction
with the children with the GAL or some other court-appointed advocate." The magistrate
ordered the GAL to remain involved in the case to facilitate visitation and ordered Father
to bring the bill for the GAL current. The magistrate further ordered neither party could file
any additional motions without first making a good-faith attempt at mediation with the
court mediator.
History Following Trial
{¶ 46} On November 23, 2020, seven days after the magistrate issued her decision
Father filed a motion for contempt against mother for failing to provide Father parenting
time on October 16, 17, and 18, 2020, and November 13, 14, and 15. On November 30,
2020, Father voluntarily withdrew the motion.
{¶ 47} Also on November 30, 2020, Father filed 22 initial objections to the
magistrate's November 16, 2020 decision and a motion to modify child support pursuant
to R.C. 3119.79.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 14
{¶ 48} On February 1, 2021, Father filed supplemental objections to the
magistrate's decision filed November 16, 2020, outlining an additional 23 objections.
Mother filed her response to Father's objections on March 15, 2021.
{¶ 49} On March 15, 2021, Mother filed a motion to modify temporary orders
because Father relocated to Tennessee and had become increasingly hostile toward the
children and the GAL visitation supervisor. A hearing was set for June 18, 2021 to address
the matter of Father's relocation.
{¶ 50} On May 7, 2021, Father filed a notice of relocation and provided his new
address in Tennessee. He also filed a motion to modify the temporary orders regarding
parenting time in light of his relocation. On May 10, 2021, the trial court set a hearing on
Father's motion to modify for the same day as Mother's motion to modify, June 18, 2021.
{¶ 51} On June 11, 2021, Father filed a motion for contempt against the GAL and
a motion to remove the GAL. In his motion for contempt, Father alleged the GAL was in
violation of Morrow County Local Rule 13.07(10) in that she had failed to provide Father
with a billing statement. Father also alleged the GAL had refused to facilitate visitation
until her fees were paid by Father as ordered. Father paid the GAL's fees through January
2021 and supervised Zoom calls resumed until March 18, 2021. Thereafter, the GAL
advised the magistrate in an email that Father was becoming increasingly hostile towards
her during calls with the children and with both her and Mother in emails, text messages,
OFW, and in demanding and menacing voice mails. The GAL further advised the
magistrate she was unwilling to supervise any further Zoom calls as she did not believe
they were in the children's best interests. Father requested a hearing on the matter. In his
motion to remove the GAL, Father cited the same grounds and argued the GAL's refusal
to facilitate Zoom visitation until she was paid is unacceptable, and her emails to the court
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 15
and counsel regarding lack of payment and Father's hostility reflected her inability to
remain independent and objective.
{¶ 52} Directly before the June 18, 2021 hearing the magistrate conducted an in-
camera interview with three of the four children as one was away at camp. Also present
for the in-camera hearing were the GAL and Attorney Leber. The GAL requested the in-
camera interview in an attempt to move visitation forward.
{¶ 53} Father has failed to include a transcript of the June 18, 2021 hearing.
According to the subsequent judgment entry filed June 18, 2021, however, as of the day
of the hearing, Father's objections to the magistrate's November 16, 2020 decision were
before the Judge, but the matter had been remanded to the magistrate to determine
Father's current residence. Present at the hearing were the parties and the GAL. Father
was given the opportunity to present evidence on his motions to remove the GAL and his
motion to hold the GAL in contempt, but counsel for Father indicted he was unprepared
to do so. Upon its review of the motions and information provided by the parties at the
hearing the magistrate indicated she would rule on the motions without a formal hearing.
{¶ 54} In the June 18, 2021 judgment entry, the magistrate found: (1) Father had
relocated to Tennessee and was living with his wife and two children; (2) Father would
have supervised visitation with the children that same day; (3) future facilitation of
visitation was a possibility; (4) Father's motions to remove the GAL and further find the
GAL in contempt were found to be frivolous and were denied.
{¶ 55} On July 12, 2021, Father served the GAL with a subpoena for her records
in this matter; information that is confidential per the Ohio Rules of Superintendence.
{¶ 56} On July 23, 2021, Father filed objections to the magistrate's June 18, 2021
decision.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 16
{¶ 57} On July 26, 2021, the trial court quashed Father's subpoena for the GAL's
records.
{¶ 58} On August 23, 2021 the trial court ruled on Father's objections to the
magistrate's November 16, 2020 decision. This is the first judgment entry Father appeals
from. The trial court overruled all of Father's objections with the exception of objections
1, 2, and 7. Objections 1 and 2 pertained to the magistrate's finding that a change in the
child support law was not a change which warranted a modification of child support. The
court found R.C. 3109.02, enacted before Father filed his motion for modification of child
support, applied to Father's motion, and modified his support order to $3432 per
month/$858 per child, as of August 1, 2020. Objection 7 pertained to the amount of
Father's child support arrearage which also changed due to the court's findings on
objections 1 and 2. The court remanded the matter to the magistrate to redetermine
Father's arrearages.
{¶ 59} On September 13, 2021, Father filed a motion to stay execution of judgment
pending appeal regarding child support issues only.
{¶ 60} On September 2, 2021, Father filed supplemental objections to the
magistrate's June 18, 2021 decision.
{¶ 61} On September 7, 2021, the trial court overruled Father's objections to the
magistrate's June 18, 2021 decision denying removal of the GAL and denying Father's
motion to hold the GAL in contempt. The trial court noted Father's motions were frivolous
and further appeared to be an attempt to intimidate the GAL. This is the second judgment
entry Father appeals from.
{¶ 62} On September 13, 2021, Father filed a Motion to Modify Parenting Time and
a request for hearing. In support of his motion Father indicated he had relocated to
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 17
Tennessee. Father additionally stated that while he was filing a simultaneous appeal of
the August 23, 2021 judgement entry, he sought a stay on the issue of his child support
obligation and arrearages only and not issues of parenting time. He filed the motion to
stay the same day as well as his notice of appeal of the magistrate's August 23, 2021
decision.
{¶ 63} Also on September 13, 2021, without a hearing, the trial court issued a
judgment entry modifying Father's child support obligation as per his motion to modify
filed November 30, 2020. The trial court reduced Father's child support obligation to
$709.41 per month per child plus a 2% processing fee and cash medical support of
$116.94 plus a 2% processing fee effective November 30, 2020. Father's obligation was
reduced in light of the fact that Father and E.P. now have two children of their own. This
is the third judgment entry Father appeals from.
{¶ 64} On October 4, 2021, Father filed a notice of appeal of the September 7,
2021 judgement entry overruling Father's objections to the magistrate's June 18, 2021
decision denying removal of the GAL and denying Father's motion to hold the GAL in
contempt. On the same day Father filed a notice of appeal of the trial court's September
13, 2021 judgment entry modifying his child support obligations.
{¶ 65} On October 14, 2021 Father filed a motion to stay the September 13, 2021
judgment pending appeal regarding child support issues only. On the same day Father
filed a motion to modify child support.
{¶ 66} On October 21, 2021 a hearing was held before the magistrate upon remand
from the trial court to determine the amount of arrearage owed by Father, to determine
purge conditions, and to address his request for a stay of child support issues pending
appeal. There is no transcript of this hearing included in the record. Per the confirmation
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 18
of the magistrate's decision filed October 22, 2021, following a hand audit by the Morrow
County Child Support Agency it was determined Father was $76,863.13 in arrears in child
support to Mother and $4,646.70 in arrears for administrative fees owed to the Agency.
The magistrate noted Father's monthly obligation had been reduced from $4,338.44 for
all four children to $2837.64 per month for all four children, and that he had not met the
purge conditions set on August 23, 2021. The magistrate found new purge conditions
needed to be created, but that Father had requested a stay of child support issues
pending appeal. The magistrate granted Father's request for stay on all issues except
payment of current child support. Father was ordered to post bond in the amount of the
child support arrears which may be forfeited to pay the child support arrears if this court
did not further modify Father's child support obligation.
{¶ 67} The matter is now before this court for consideration. Father raises five
assignments of error for our consideration as follow:
I
{¶ 68} "THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
OF LAW WHEN IT IMPUTED APPELLANT TO AN ANNUAL INCOME OF $285,467.00
FOR PURPOSES OF CALCULATING CHILD SUPPORT."
II
{¶ 69} "THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
OF LAW WHEN IT RULED UPON APPELLANT'S MOTION TO MODIFY CHILD
SUPPORT, FILED NOVEMBER 30, 2020 WITHOUT A HEARING"
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 19
III
{¶ 70} "THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
OF LAW WHEN IT DENIED APPELLANT'S MOTION FOR THE REALLOCATION OF
PARENTAL RIGHTS AND RESPONSIBILITIES."
IV
{¶ 71} "THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
OF LAW WHEN IT DENIED APPELLANT'S MOTION TO ENFORCE A PRIOR
SENTENCE FOR CONTEMPT OF APPELLEE'S FAILURE TO PURGE."
V
{¶ 72} "THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
OF LAW WHEN IT DENIED APPELLANT'S MOTION FOR CONTEMPT AS AGAINST
THE GUARDIAN AD LITEM."
I
{¶ 73} In his first assignment of error, Father challenges the trial court's imputation
of his income at $285,467 for purposes of child support, the trial court's mention of
historical facts of the case, and alleged consideration of facts outside the record in its
review of Father's objections to the magistrate's decision. We disagree.
Standard of Review
{¶ 74} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio
Supreme Court determined that abuse of discretion is the appropriate standard of review
in matters concerning child support. In order to find an abuse of discretion, we must
determine that the trial court's decision was unreasonable, arbitrary, or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). Further, as an appellate court, we are not the trier of fact.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 20
Our role is to determine whether there is relevant, competent, and credible evidence upon
which the factfinder could base his or her judgment. Tennant v. Martin-Auer, 188 Ohio
App.3d 768, 2010-Ohio-3489, 936 N.E.2d 1013, ¶ 16 (5th Dist.), citing Cross Truck v.
Jeffries, Stark App. No. CA-5758, 1982 WL 2911 (Feb. 10, 1982).
Child Support Calculation With Voluntary Underemployment or Unemployment
Analysis
{¶ 75} Before addressing Father's arguments under this assignment of error, we
note that within this assignment of error as well as at oral argument, counsel for Father
alleged Mother had the burden of prove Father was voluntarily underemployed or
unemployed because the motion was Mother's. This is inaccurate. Only one motion of
Mother's was before the court on September 24-25, 2020 and that was Mother's July 12,
2019 motion for contempt against Father for failing to pay child support as ordered on
December 11, 2018. In that motion and the attached affidavit, Mother never alleged
Father was voluntarily under or unemployed before or after that date. Father, on the other
hand had filed a motion to modify his child support obligation. The burden, therefore, was
on Father to demonstrate a substantial change in circumstances warranting modification
of the previous child support order.
{¶ 76} We address Father's arguments under his first assignment of error out of
order for ease of discussion.
Trial Court's Determination of Father's Current Income
{¶ 77} Father argues the trial court abused its discretion by arbitrarily using
outdated financial information to determine Father's current income and ignoring
information presented by Father regarding his income at the September 24-25, 2020 trial.
We disagree.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 21
{¶ 78} In regard to child support, "income" consists of the sum of the gross income
of the person and any "potential income" of the person if voluntarily underemployed. R.C.
3119.01(C)(9)(b). A trial court is permitted to impute income to a parent when the parent
is voluntarily unemployed or voluntarily underemployed. R.C. 3119.01(C)(9)(b). This
Court stated in Farrell v. Farrell, 5th Dist. Licking No. 2008-CA-0080, 009-Ohio-1341, ¶
20: "In deciding if an individual is voluntarily under employed or unemployed, the court
must determine not only whether the change was voluntary, but also whether it was made
with due regard to obligor's income-producing abilities and his or her duty to provide for
the continuing needs of the child. Woloch v. Foster, 98 Ohio App.3d 86, 649 N.E.2d 918(1994). A trial court does so by weighing the circumstances of each particular case. Rock
v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993)."
{¶ 79} Pursuant to R.C. 3119.01(C)(17)(a), imputed income is determined from the
following criteria:
(i) The parent's prior employment experience;
(ii) The parent's education;
(iii) The parent's physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which
the parent resides;
(v) The prevailing wage and salary levels in the geographic area in
which the parent resides;
(vi) The parent's special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn
the imputed income;
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 22
(viii) The age and special needs of the child for whom child support
is being calculated under this section;
(ix) The parent's increased earning capacity because of experience;
(x) The parent's decreased earning capacity because of a felony
conviction;
(xi) Any other relevant factor.
{¶ 80} Whether a person is voluntarily underemployed and the amount of income
to be imputed "are matters to be determined by the trial court based upon the facts and
circumstances of each case." Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993),
paragraph one of the syllabus. A determination with respect to these matters will only be
reversed upon a showing of abuse of discretion. Id.Evidence of Father's Income
{¶ 81} Father testified he did not work for a while. Transcript of September 224-25,
2020 Trial (T). 199. Father also voluntarily sold his business in Hawaii in July 2019 and
moved to Ohio. T. 192-193. Father's wife E.P. testified Father wasn't working at that time.
T. 437. E.P testified Father's income from Island Metals for 2019 was $3,400 because
"he didn't work much." T. 518.
{¶ 82} Father provided evidence that he had started a new business while in
Ohio, Barns and Metal, LLC. But he also stated he would not take jobs more than 15
minutes away from his home. T. 202. Father presented Exhibit 63, a profit and loss
sheet for Island Metals for January through November 2019 showing an "approximate
net total" profit/income plus wages of $340,588.84; Exhibit 64, a profit and loss sheet for
Barns and Metal for January through November 2020 showing net income of
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 23
$13,811.72; and Exhibit 65, which consisted of U.S. Bank statements for the Barns and
Metal business checking account for April, May, June, July and August 2020. Father
notably did not provide his tax records for 2018 and 2019. While Father alleged he paid
a substantial amount of tax following the sale of Island Metals, he provided no tax
documents to support his claims. T. 200. Father additionally did not provide evidence of
his potential earning capabilities in Morrow County, however that information at this
point would be moot as Father has since moved to Tennessee.
{¶ 83} Father had $347,442 in his U.S. Bank account as of September 20, 2019.
T. 387, Mother's Exhibit M. Another $69,199 was deposited into the account in November
2019, bringing the total to $416,641. Id. But as of February 2020, the balance on the
account was $2,297.
{¶ 84} The statements for the account are heavily redacted,1 and therefore it is
impossible to tell where the money went. E.P. testified they bought a house for $140,000
cash and spent $90,000 on renovations. T. 532. Thereafter they took a $220,000
mortgage out against the house. They later sold the house for $375,000. E.P. further
testified contrary to the Barns and Metal profit and loss statement stating no one in their
household earned income in 2020. Rather, they were living off the proceeds of the sale
of Island Metals. T. 533.
{¶ 85} R.C. 3119.01(C)(7) states as follows regarding gross income for purposes
of child support calculations:
1
While Father alleges in his brief that a request to present unredacted copies was denied, the trial court
specifically stated this was false; it never directed Father to redact his statements. T. 407-408.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 24
"Gross income" means, except as excluded in division (C)(7) of this
section, the total of all earned and unearned income from all sources
during a calendar year, whether or not the income is taxable, and
includes income from salaries, wages, overtime pay, and bonuses to
the extent described in division (D) of section 3119.05 of the Revised
Code; commissions; royalties; tips; rents; dividends; severance pay;
pensions; interest; trust income; annuities; social security benefits,
including retirement, disability, and survivor benefits that are not
means-tested; workers' compensation benefits; unemployment
insurance benefits; disability insurance benefits; benefits that are not
means-tested and that are received by and in the possession of the
veteran who is the beneficiary for any service-connected disability
under a program or law administered by the United States
department of veterans' affairs or veterans' administration; spousal
support actually received; and all other sources of income. * * *."
{¶ 86} We have recognized that "[t]he definitions of income under R.C. 3119.01
are broad and expansive to protect the child's best interests." Cooper v. Cooper, 5th Dist.
Licking No. 14 CA 100, 2015-Ohio-4048, ¶ 30 quoting Vonderhaar–Ketron v. Ketron, 5th
Dist. Fairfield No. 10 CA 22, 2010-Ohio-6593, ¶ 48, citing Bishop v. Bishop, 4th Dist.
Scioto No. 03CA2908, 2004-Ohio-4643, ¶ 16 (additional citation omitted).
{¶ 87} There is no question that Father was voluntarily unemployed or
underemployed in 2019 and 2020. Both Father and E.P. testified they did not work, or
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 25
worked very little. We therefore find no abuse of discretion in the trial court's determination
of the same.
{¶ 88} We also find no abuse of discretion on the trial court's determination of
Father's income. The trial court found that in 2019 and 2020, Father had access to more
than $626,000 in cash either in wages, cash from the sale of his business, or from profit
on his labor on the home he purchased and resold in Ohio. The trial court further found it
would be highly prejudicial to Mother to reward Father for not working for two years
leading up to his modification of child support hearing. In so finding, it left Father's
previously determined income of $285,476.66 unchanged. Confirmation of Magistrate's
Decision, August 23, 2021 at 6, 10. We find the trial court did not abuse its discretion in
leaving Father's income determination unchanged.
"Judicial Notice" of Historical Facts
{¶ 89} Father next argues that because the relevant time period for the trial court's
consideration of child support was March 14, 2019 (date of last judgment entry concerning
child support) to September 24-25, 2020 (the date of trial), the trial court erred in
considering testimony and exhibits from a hearing held in 2018 in its August 23, 2021
confirmation of the magistrate's decision, specifically income previously imputed to
Father. We disagree.
{¶ 90} First, in support of his argument, Father cites Kuntz v. Ferrato, 9th Dist.
Medina No. 11CA0102M, 2012-Ohio-4873 and In re LoDico, 5th Dist. Stark No. 2003-
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 26
CA-00446, 2005-Ohio-172. Neither of these cases are on point or of any assistance to
Father's position.
{¶ 91} In Kuntz, the magistrate ordered appellant Kuntz to submit to regular drug
testing and have the results submitted to the GAL and the court's confidential file. Kuntz
at ¶ 4. When upon objections by Ferrato the trial court considered Kuntz's drug testing
results, Kuntz argued on appeal that trial court abused its discretion in considering facts
not within the trial transcript in reaching its decision. In rejecting this argument, the Ninth
District Court of Appeals concluded:
There are other documents in the record, including magistrate's
orders, which support the statements made by the trial court. Mr.
Kuntz has not explained why the trial court should not be able to rely
on this information when reciting the history of the case, when
determining whether prior orders have been complied with, or when
determining whether a party's story has changed. See In re J.C., 186
Ohio App.3d 243, 927 N.E.2d 69, 2010-Ohio-637, ¶ 14 (9th Dist.),
quoting In re LoDico, 5th Dist. No.2003-CA-00446, 2005-Ohio-172,
¶ 94 ("A trial court 'may only take judicial notice of prior proceedings
in the immediate case.' "). We note that Mr. Kuntz has not asserted
that the trial court's statements are inaccurate. Further, Mr. Kuntz
has not asserted on appeal that he should have been given the
opportunity to be heard on this issue, see Evid.R. 201(E), nor did he
attempt to raise the issue below.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 27
{¶ 92} Father also relies on In re LoDico, 5th Dist. Stark No. 2003-CA-00446, 2005-
Ohio-172 for the premise that the trial court could not look to the history of the case in
establishing Father's income. The portion of LoDico relied upon by Father involved a
finding of contempt wherein the trial court relied on "other acts" of contempt by the
appellant which did not occur in the presence of the trial court judge, and which were not
made part of the court's record. Nothing similar took place in this matter. What is more,
in that matter we concluded other acts committed before the same tribunal in the past by
the same person could have been considered:
As previously noted, to constitute direct contempt subject to a
summary finding and disposition, the offending conduct must occur
in the presence of the court and must pose an "imminent threat to
the administration of justice." Acts occurring in the past, under
different circumstances, and before a different tribunal would not be
germane to whether the accused's conduct in this case, before this
judge constituted a direct, summary contempt. However if the past
acts had occurred in the presence of the same judge consideration
of those past transgressions would not be foreclosed.
{¶ 93} In re LoDico, 5th Dist. Stark No. 2003-CA-00446, 2005-Ohio-172, ¶ 95.
{¶ 94} We have reviewed the portions of the August 23, 2020 judgment entry cited
by Father, specifically findings 10 and 11. In these findings, the trial court was merely
setting forth the history of the case. Like the appellant in Kuntz, Father fails to explain why
the trial court may not rely on other documents contained in the record when reciting the
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 28
history of the case. He further does not argue the statements are inaccurate. We question
whether the trial court even took "judicial notice" of anything in this matter. Rather, the
court recited the history of a case that has been in ongoing litigation since 2015.
{¶ 95} Father also has not been denied an opportunity to be heard. The last time
the court determined Father's income was in 2018. At that time, the trial court set his
annual income at $285,467 a year, a decision that Father did not appeal. In the instant
matter Father asked the court to modify his child support obligation because he claimed
to be earning less money. The issue placed before the court by Father required an
analysis of Father's income past and present to determine if Father demonstrated
warranting modification of the previous child support order. We find no error in the trial
court's consideration of the history of the case including Father's previously determined
income.
Testimony Outside the Record
{¶ 96} Finally, Father argues the trial court's August 23, 2021 judgment entry
considered testimony outside the record of the September 24-25, 2020 trial. Specifically,
the fact that Father had moved to Tennessee and sold his home in Ohio that had a
$220,000 mortgage on it for $375,000. But before issuing its August 23, 2021 judgment
entry, the trial court remanded the matter to the magistrate specifically for this information.
A hearing was held before the magistrate on June 18, 2020, in part to address that matter.
As noted in our statement of facts, Father has failed to include a transcript of the June 18,
2020 hearing. When portions of the transcript necessary to resolve issues are not part of
the record, the court of appeals must presume regularity in the proceedings below and
affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N.E.2d 384. We
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 29
therefore presume the regularity of that hearing and find no error in the trial court's
consideration of this information.
{¶ 97} The first assignment of error is overruled.
II
{¶ 98} In his second assignment of error, Father argues the trial court erred in ruling
on his November 30, 2020 motion to modify child support without a hearing. We disagree.
{¶ 99} "The due process rights to notice and hearing prior to a civil judgment are
subject to waiver." Matter of A.H., 11th Dist. No. 2019-G-0222, 2021-Ohio-4055, ¶ 14,
citing D. H. Overmyer Co., Inc., of Ohio v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 31
L.Ed.2d 124 (1972). Generally, the decision to conduct an evidentiary hearing is a matter
within the discretion of the trial court. Id. at ¶ 15 citing Kalbaugh v. Kalbaugh, 9th Dist.
Summit Nos. 29184, 29185, 29219, and Summit Nos. 29328, 2020-Ohio-3873, ¶ 24.
Moreover, the failure to hold an evidentiary hearing may be deemed harmless error when
the complaining party is not prejudiced. Id. citing Brown v. Brown, 2014-Ohio-2402, 14
N.E.3d 404, ¶ 51 (8th Dist.) (the "failure to conduct the hearing [before modifying a support
obligation] does not constitute reversible error, unless the appellant demonstrates
prejudice").
{¶ 100} In his brief Father argues he was deprived the opportunity to present
evidence "which would have included his current income information." But Father's
income had been determined just 14 days earlier in the magistrate's decision issued
following the September 24-25, 2020 trial. Moreover, Father has not argued he suffered
prejudice. In fact, Father's child support order was lowered in response to his motion.
Thus even if it was error for the trial court to forgo a hearing on the matter, the error was
harmless.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 30
{¶ 101} The second assignment of error is overruled.
III
{¶ 102} In his third assignment of error, Father makes four separate arguments
alleging the trial court abused its discretion and made an error of law in denying his motion
for reallocation of parental rights and responsibilities.
{¶ 103} Father first argues he was unable to present testimony and video evidence
of his process server serving Mother's husband T.M. at the children's soccer game which
he argues would have changed the recommendation of the GAL as to his visitation
schedule. Father next argues the trial court abused its discretion in analyzing his motion
by referencing evidence outside the record, specifically future hearings, evidence, and
events in its August 23, 2021 judgment entry. Third, Father argues the trial court erred
and abused its discretion in finding he failed to meet his burden to show a change of
circumstances. Finally, Father argues the trial court abused its discretion in its
implementation of a phased return to reestablishing father's visitation with the GAL or
some other court-appointed advocate determining when progression to the next phase
would occur. According to Father, this role is the trial court's alone.
Process Server Testimony and Video
{¶ 104} Evidentiary rulings lie within the broad discretion of the trial court.
Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991). Evid.R. 103(A)(2)
addresses an erroneous ruling on the exclusion of evidence and states: "Error may not
be predicated upon a ruling which * * * excludes evidence unless a substantial right of the
party is affected, and * * * the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked. Offer of
proof is not necessary if evidence is excluded during cross-examination." If the party
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 31
claiming error is unable to establish that the trial court's ruling affects a substantial right,
the error is deemed harmless; if the party is unable to proffer the substance of the
excluded evidence, the error is deemed waived. Campbell v. Johnson, 87 Ohio App.3d
543, 551, 622 N.E.2d 717 (1993).
{¶ 105} There was considerable drama surrounding the matter of Father serving
subpoenas upon T.M. and his oldest daughter through Mother. Father subpoenaed his
daughter to testify regarding her diary when in fact the diary was inadmissible pursuant
to R.C. 3109.04(B)(3), and additionally if Father wanted any input from any of his children,
the appropriate route was an in-camera hearing with the children, the court, the GAL and
counsel for the children. Service upon T.M. and daughter through Mother occurred at the
children's soccer game. Father sought to call his process server to testify regarding T.M.'s
reaction to being served in that environment and further to admit his video of the same.
T. 177-178. Counsel for Mother objected to the testimony and video evidence as
irrelevant and the trial court sustained the objection. T. 176, 181. Counsel for Father then
proffered that the process server's testimony would prove it was T.M.'s aggressive
behavior in reaction to being served at the soccer game that caused ill will between the
children and Father rather than Father's decision to serve them at a school function.
Counsel further argued T.M.'s aggressive behavior was relevant to the best interests
factors. T. 177-180.
{¶ 106} We find no error in the trial court's exclusion of the testimony of the process
server or the video of service. First, while Father argues "[t]his is not a case where 13
witnesses had already testified to the same issue * * *" the record reflects that three
witnesses did. Father, T.M., and E.P. all testified regarding the circumstances regarding
the service of process. T. 259-275, 321-327, 483-489. Second while Father argues he
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 32
was prejudiced in his ability to fully present his case because the GAL's recommendation
for visitation changed based upon the service issues, testimony regarding the incidences
was admitted. We therefore find Father was able to present the testimony he sought even
without testimony of the process server or videos of the service. We find no abuse of
discretion and reject Father's arguments.
Father Did Not Meet His Burden to Demonstrate a Change of Circimstances
{¶ 107} A trial court reviews a motion to reallocate parental rights and
responsibilities under R.C . 3109.04(E)(1)(a) which states as follows:
(E)(1)(a) The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds,
based on facts that have arisen since the prior decree or that were
unknown to the court at the time of the prior decree, that a change
has occurred in the circumstances of the child, the child's residential
parent, or either of the parents subject to a shared parenting decree,
and that the modification is necessary to serve the best interest of
the child. In applying these standards, the court shall retain the
residential parent designated by the prior decree or the prior shared
parenting decree, unless a modification is in the best interest of the
child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change
in the designation of residential parent.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 33
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into
the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
{¶ 108} Therefore, in determining whether to make a modification, a trial court must
consider (1) whether a change in circumstances has occurred, (2) whether a modification
is in the child's best interest, and (3) whether the benefits that result from the change of
environment outweigh any harm. As explained by this court in Oyler v. Lancaster, 5th
Dist. Stark No. 2019CA00130, 2020-Ohio-758, ¶ 24:
R.C. 3109.04 does not define the concept of “change in
circumstances.” However, Ohio courts have held the phrase is
intended to denote "an event, occurrence, or situation which has a
material and adverse effect upon a child." Wyss v. Wyss, 3 Ohio
App.3d 412, 445 N.E.2d 1153 (10th Dist.1982). Additionally, the
change of circumstances must be "one of substance, not a slight or
inconsequential change." Davis v. Flickinger, 77 Ohio St.3d 415, 674
N.E.2d 1159 (1997).
{¶ 109} "In determining whether a 'change' has occurred, a trial judge must have
wide latitude in considering all the evidence, and the court's decision must not be reversed
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 34
absent an abuse of discretion." In re A.P., 2d Dist. Montgomery No. 28023, 2019-Ohio-
139, ¶ 23. In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 110} Father argues the change in circumstances include Mother's refusal to
comply with court orders. Specifically, Father lists denying Father parenting time,
withholding information regarding dental appointments, and failing to read OFW
messages.
{¶ 111} Mother stipulated she did not open or respond to the OFW messages
contained in Father's Exhibit 12. T. 111. Father neither explains why this constitutes a
change in circumstance, nor provides any authority to support such a finding, and we
decline to find that it does.
{¶ 112} The same is true of Mother withholding information regarding dental
appointments and her delay in advising Father of minor injuries sustained by the children.
The only instance we find in the record of Mother failing to advise Father of dental
appointments is Mother failing to advise Father that the children had a consult with an
orthodontist. Mother explained because the treatment would be expensive she was
undecided as to whether or not to move forward and therefore did not see the need share
the fact of the consult with Father. T. 571-573. Similarly, Father was advised one of the
children broke their wrist shortly after the incident took place. T. 570, Mother's Exhibit L,
pages 64 and 63. Another child sustained a cut on his head that required staples. Mother
did not advise Father of this injury. T. 140-144. However, nothing about any of these
instances constitutes a change in circumstances pursuant to R.C. 3109.04.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 35
{¶ 113} As for Father being denied parenting time, Father specifies he was denied
parenting time on December 18 and 21, 2019 and spring break 2020. Our examination of
the record reveals Father's visitation was suspended pending investigation in December
2019 due to an allegation by one of the children that Father had choked them during a
visit. T. 567-570. As for spring break, Mother admitted there was confusion on her part
regarding whose weekend it was and she had given Father the following weekend or two
to make up for her error. T. 566-567. Again, nothing about these incidences demonstrates
a change of circumstances under R.C. 3109.04.
{¶ 114} While Father argues the trial court modified his parenting time and
therefore there must have been a change in circumstances, his parenting time was not
modified due to a change in circumstances for the children. Rather, Father's parenting
time was modified first because Father voluntarily agreed to suspend visitation before the
September 24-25, 2020 trial because the oldest child was so upset with Father's decision
to serve her through Mother as well as T.M at a soccer game in front of her peers. Second,
the three oldest children advised their attorney before trial they desired to spend less time
with Father due to Father's behavior. T. 40-43. Father's visitation was therefore to be
reinstated slowly and under supervision and eventually return to Local Rule 2 visitation
except for summer which would be one week per month.
{¶ 115} In summary, while Father presented evidence demonstrating a change in
his own circumstances, he failed to meet his burden to show an event, occurrence, or
situation which has a material and adverse effect upon the children which would warrant
a change of circumstances. We therefore reject Father's arguments.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 36
Phased-In Return to Visitation Monitored by the GAL
{¶ 116} Finally, Father argues the trial court abused its discretion by allocating
authority to the GAL to implement the phased-in return to visitation and to determine the
success or failure of each phase. According to Father, this role belongs to the trial court
alone.
{¶ 117} In support of his argument, Father cites Morrow v. Becker, 2018-Ohio-
3316, 118 N.E.3d 1077 (9th Dist.) In that matter, the trial court ordered reunification
counseling through an independent agency. Father's parenting time was to be expanded
as recommended by the reunification counselor, but there was no provision for periodic
reviews. Id. ¶ 27. In the instant matter, there was no outside professional employed to
facilitate Father's phased-in return to parenting time, but rather a GAL.
{¶ 118} As Father notes, the trial court's role is to determine the best interests of
the children and fashion a parenting time order that reflects the same. R.C. 3109.12(B).
A GAL is an individual appointed to assist a court in that determination. In performing this
duty a GAL is an officer of the court, acting as an arm of the court. Lovejoy v. Cuyahoga
Cty. Dept. of Human Serv., 76 Ohio App.3d 514, 517, 602 N.E.2d 405 (1991), citing Penn
v. McMonagle, 60 Ohio App.3d 149, 573 N.E.2d 1234 (1990). Father's reliance on Morrow
is therefore misplaced.
{¶ 119} What is more, while Father argues no provision was made for periodic
review, a GAL is required to, "[i]f necessary, request timely court reviews and judicial
intervention in writing with notice to the parties or affected agencies[.]" Sup.R.
48.03(A)(6). The record reflects the GAL complied with this mandate by emailing the court
and counsel for the parties when supervised Zoom visits with Father deteriorated due to
Father's poor behavior, and Father's failure to pay the GAL's fees as ordered. Father's
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 37
Motion to Remove Guardian Ad Litem, June 11, 2021, R. 388, exhibits 1 and 2. While
Father takes issue with email communication from the GAL to the court and counsel,
email communications were appropriate here as the GAL in this matter is not an attorney
and may not therefore file motions. Father's arguments are without merit.
{¶ 120} The third assignment of error is overruled.
IV
{¶ 121} Father next argues the trial court abused its discretion when it denied his
motion to enforce sentence upon Mother for failure to purge her contempt. We disagree.
{¶ 122} A trial court's decision in a contempt proceeding is reviewed for an abuse
of discretion. In re A.N., 8th Dist. Cuyahoga No. 99744, 2013-Ohio-3816, at ¶ 8, citing
State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). An abuse
of discretion implies the trial court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 123} Father first mentions the apparent confusion regarding the time for the May
31, 2019 purge hearing discussed in our statement of facts, wherein counsel for the
respective parties had different times for the hearing in their calendars. Any confusion or
subsequent delay in holding the purge hearing, however, is of no consequence as the
matter was ultimately addressed at the September 24-25, 2020 trial. So too Father's
mention of whether or not the magistrate could enforce sentence at all due to the fact that
the trial court never adopted the magistrate's finding of contempt is of no consequence
as the magistrate ultimately concluded mother had met the purge conditions. Judgment
Entry November 16, 2020.
{¶ 124} According to the magistrate's order issued April 12, 2019, in order to purge
her contempt, Mother was required to (1) provide Father with a schedule of the children's
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 38
activities; (2) provide Father with the names of the children's medical providers and all
non-emergency appointments; (3) use OFW for communication between the parties; and
(4) permit the children unrestricted use of the cell phone purchased by Father for
communication between him and the children.
{¶ 125} Mother testified both parties use TeamSnap, an application containing the
children's sports activities schedule and any changes to that schedule. Mother did not feel
the need to duplicate those notifications through OFW. T. 558-559. We further note the
order of April 12, 2019 did not require Mother to communicate the children's activities
through OFW, but rather merely to provide Father with a schedule.
{¶ 126} Mother's exhibits J and K are OFW messages which provide Father with
the names of the children's medical providers. T. 559-560.
{¶ 127} Mother testified the children have access to the cell phone provided by
Father and she does not restrict that access. T. 561. While Father argued at trial that he
felt the phone was often turned off or low on battery, even it that were true, the children
had access to the phone as ordered.
{¶ 128} Father's most strenuous arguments centered on Mother's alleged failure to
use OFW for communication between the parties. Father's exhibit 12 contained OFW
messages that Mother neither opened nor responded to. Mother stipulated to that fact. T.
111. These messages, however, represented approximately one-third of the total
messages exchanged, the other two-thirds of which Mother opened and or responded to.
T. 556, Mother's exhibit L.
{¶ 129} We have reviewed the entire record in this matter including the OFW
messages admitted at trial. We agree with the magistrate's assessment that Mother's
decisions cannot be viewed in a vacuum and that many of the messages sent by Father
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 39
through OFW were unnecessary. These messages included attempts by Father to get
Mother to defy court orders as to the exchange procedures when dropping off or picking
up the children, requests for information regarding the children's activities that Father
already had, and demands for Mother to provide certain clothing for the children for visits
with Father when Father was not supporting his children financially. Mother's exhibit L.
{¶ 130} As Father notes, the trial court summarily overruled Father's objection to
the magistrate's decision to deny Father's motion to enforce sentence against Mother
without analysis. The trial court did however note the parties have been in constant
litigation since 2015, the children have grown weary of the constant battle, father's
behavior is not demonstrative of a parent who has his children's best interests in mind,
and neither is that of his counsel. In fact the trial court concluded any change in
circumstances which have had a material and adverse effect upon the children has been
wrought by Father. Judgment Entry August 23, 2021 at Record 400. Moreover, as noted
by the magistrate, it would be inequitable and not in the children's best interests to
incarcerate Mother. Id. We therefore find the trial court did not abuse its discretion in
denying Father's motion to enforce sentence for contempt for Mother's failure to purge.
{¶ 131} The fourth assignment of error is overruled.
IV
{¶ 132} In his final assignment of error Father argues the trial court abused its
discretion by denying his motion for contempt against the GAL. We disagree.
Morrow County, Case Nos. 2021 CA 0011, 2021 CA 0013, 2021 CA 0014 40
{¶ 133} As noted above, Father has failed to provide a transcript of the June 18,
2021 hearing which addressed this matter. We therefore presume the regularity of that
hearing and overrule Father's final assignment of error.
{¶ 134} The Judgment of the Morrow County Court of Common Pleas Juvenile
Division is affirmed.
By Wise, Earle, P.J.
Wise, J., J. and
Delaney, J. concur.
EEW/rw
[Cite as G.P. v. L.P., 2022-Ohio-1373.]