Jourdan v. Jourdan

[Cite as Jourdan v. Jourdan, 2023-Ohio-1826.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
SUSAN JOURDAN nka TETER- : Hon. W. Scott Gwin, P.J.
GILLIAM : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
Plaintiff-Appellant/Cross-Appellee :
:
-vs- : Case No. 22-CA-00004
:
JOHN JOURDAN :
: OPINION
Defendant-Appellee/Cross-Appellant
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 08-DV-00300
JUDGMENT: Affirmed in part; Reversed and Remanded
in part
DATE OF JUDGMENT ENTRY: May 31, 2023
APPEARANCES:
For – Father For - Mother
ANDREW T. LIPP PHILIP L. PROCTOR
123 S. Broad St., P.O. Box 4803
Suite 309 Newark, OH 43058
Lancaster, OH 43130
Perry County, Case No. 22-CA-00004 2
Gwin, P.J.
{¶1} Both Mother and Father appeal the April 8, 2022 judgment entry of the Perry
County Court of Common Pleas.
Facts & Procedural History
{¶2} Susan Jourdan, nka Susan Teter-Gilliam (“Mother”) and John Jourdan
(“Father”) were married in 2004. They have one minor child, A.J., who was born on
August 5, 2005, and will soon reach the age of majority. A final judgment entry of divorce
was issued in 2009.
{¶3} There have been numerous motions and judgment entries filed in this case.
In April of 2020, Father filed a motion for reallocation of parental rights and
responsibilities. In May of 2020, Mother filed a motion to remove travel restrictions, stating
she wanted to move to Texas with her fiancée and A.J.
{¶4} On December 4, 2020, the magistrate held an all-day hearing on the
pending motions in the case, including Father’s motion for reallocation of parental rights,
Father’s motion for shared parenting, Mother’s motion to remove travel restrictions, a
motion to modify parenting time, and several contempt motions. The following facts are
adduced from the hearing on December 4, 2020.
{¶5} Prior to March 14, 2020, Father was exercising his parenting time every
other week-end. An incident occurred on March 14, 2020. Mother called Father and told
Father A.J. wanted to come stay with him. Father testified Mother found a cell phone in
A.J.’s possession that did not belong to anyone in the household and A.J. would not tell
Mother who it belonged to, or give her the password. While Father was at work, A.J. told
him she had a urinary tract infection and needed to go the emergency room. Father told
Perry County, Case No. 22-CA-00004 3
her he would take her after school. When Father arrived home, A.J. had left the home
without permission, stated she did not want to go to the emergency room, and asked to
return to Mother’s house. Father agreed.
{¶6} In the car on the way to Mother’s house, Father confronted A.J. about lying.
Father pulled down the visor so A.J. could see the mirror, and stated that the person in
the mirror was causing the problems, not Mother or Father. A.J. took her hand and
slapped Father across the face while he was driving approximately 30-35 miles per hour.
Father’s right hand went up and held A.J. so she could not hit him again. Father drove to
the police station.
{¶7} Officer Wiseman (“Wiseman”) testified about the incident. He stated that
Father brought A.J. into the police station because A.J. struck Father while he was driving.
Wiseman was not concerned about Father’s actions because Father did not initiate the
physical violence, Father was just trying to stop the violence against him. Mother filed a
civil protection order against Father after this incident, but it was denied and dismissed.
{¶8} After the parties took away the child’s phone, Father permitted A.J. to use
his iPod, with his and Mother’s supervision. When A.J. came for her next visit, Father
found A.J. had signed up for dating sites, messaging apps, and Father found
inappropriate messages to A.J. from an older man.
{¶9} Father returned to the police station with concerns about the messages A.J.
was receiving on her phone. Officer Wiseman heard Father call Mother on
speakerphone. Mother hung up on Father, and when Father called back, Mother would
not answer the phone. Officer Wiseman testified Father was not screaming or yelling, he
Perry County, Case No. 22-CA-00004 4
was just worried. Father stated he was very concerned about these messages because
the child previously had inappropriate messages on her phone in both 2017 and 2019.
{¶10} Father and A.J. were referred to family counseling with Lisa Harper
(“Harper”) in 2019. Harper stated the parties initially came to counseling to 2019,
participated well, and they did not need to work together very long before they resolved
their issues and agreed to move forward. Father and A.J. re-engaged in counseling in
2020 after the March incident. They did not immediately start counseling because Mother
delayed in signing the releases required for A.J. to participate in the counseling, and
Mother delayed in signing the releases for Harper to speak to A.J.’s personal counselor.
When the counseling began again in 2020, Harper held approximately twelve sessions
with Father and A.J. Harper stated the sessions were pleasant and appropriate, with both
Father and A.J. cooperating. A.J. was less willing to participate in the sessions as the
end of the year came closer, and A.J. stated in a session that she did not want to come
up with a goal for treatment because it may hinder her ability to move to Texas.
{¶11} A.J. never told Harper that she felt physically or emotionally abused at
Father’s house, and never expressed to either Harper or her assistant that she was
uncomfortable at Father’s house. Harper contacted A.J.’s personal counselor to inquire
as to whether any part of the therapeutic family sessions was upsetting to A.J., and A.J.’s
personal counselor had no concerns about the family counseling. Harper testified she
does not believe A.J. is in danger around Father.
{¶12} Harper asked Mother not to sit in the waiting room during sessions,
because, after the first session, Mother was upset when the session lasted longer than
Mother thought it should have, and Mother placed her chair in the hallway next to Harper’s
Perry County, Case No. 22-CA-00004 5
office door. Harper also asked Mother not to sit in the driveway during the sessions
because it made it easier for A.J. to leave. While Mother did not return to the waiting
room, she did sit in her car outside the office and sat in the driveway when the sessions
were moved to Father’s home. Mother testified she sat in the driveway at Father’s house
because she had nowhere else to go. Mother also stated Harper’s testimony was
untruthful.
{¶13} Crystal Jourdan, the child’s paternal grandmother, lives with Father. She
has never seen Father be violent with A.J.
{¶14} Father believes it is in A.J.’s best interest for shared parenting to be granted,
and does not believe a move to Texas is in A.J.’s best interest. Father’s concerns are as
follows: the child is doing very poorly in school with multiple F’s for grades; the daily
attendance portal shows the child has missed many days with unexcused absences; the
child has had a consistent lack of stability in school districts while living with Mother; this
lack of stability has had a negative impact on A.J.’s grades and her ability to make friends;
and Mother has previously moved out-of-state to Indiana without court approval and he
believes she will do it again. Father believes A.J. would do better in his school district,
where she could stay at the same school until high school graduation. Father
understands A.J. wants to live in Texas; however, he believes this is due to Mother’s
actions. Further, while he agrees A.J. should have the right to express her opinion to the
court, Father stated the child has made very poor decisions in the last few years. Father
denied having anger issues and stated he never physically or emotionally abused A.J.
{¶15} Mother testified A.J. wants to live with her. Mother does not believe Father
is an appropriate parent, as evidenced by the March 14th incident. Mother has a fiancée.
Perry County, Case No. 22-CA-00004 6
She started dating him in 2019. Mother’s fiancée works fourteen days in Texas, and then
is off for 14 days. On cross-examination, Mother testified her fiancée is currently married
to someone else. Mother’s current lease in Ohio was up in August, but she was able to
get it extended. Mother has a rental house in Texas, and testified she intends to move
there. Mother stated she has witnessed Father be verbally abusive “to a lot of people,”
including A.J. Mother believes Father has anger issues.
{¶16} The Guardian ad litem, Sonya Marshall (“Marshall” or “GAL”), submitted a
detailed report, and also offered extensive testimony. Marshall was originally appointed
as the GAL in the case in 2017, and was re-appointed in 2019. Marshall recommends
the child not move to Texas. Accordingly, if Mother chooses to move to Texas, Marshall
believes Father should be designated the residential parent and custodian of the child,
with Mother having long-distance visitation. If Mother was not moving, she would
recommend shared parenting with Father as the residential parent for school purposes
so A.J. can remain in the same school district until graduation. Marshall bases this
conclusion on everything she has known about the family since 2017. Marshall agrees
this is not an ideal situation since A.J. has not lived with Father previously, but Marshall
has to make this recommendation since the parents will live so far apart.
{¶17} Marshall testified about several concerns she has about A.J. These include:
what A.J. is sending and receiving on her phone; promiscuity on A.J.’s cell phone; her
attendance at school; the child’s grades, particularly last year and this year; and the
constant changing of school districts.
{¶18} When asked why A.J. going to Texas would be a problem, Marshall stated
she has concerns about Mother’s ability in general because, ever since Marshall has been
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involved in the case, it has been an issue with Mother changing residences and changing
the child’s school district. Marshall testified to a pattern by Mother of moving to be with a
new significant other, and moving again when that relationship does not work out.
Marshall testified, “this is the history and this is the pattern.” Marshall stated that, as of
2019, A.J. attended seven different school districts. Marshall’s goal is to give A.J. stability.
Marshall does not believe it is in A.J.’s best interest to relocate to Texas. Marshall testified
that if A.J. moves to Texas, A.J.’s relationship with Father will not survive, and this is not
in the child’s best interest. Further, Marshall testified that she has “no faith, absolutely
none, that if Mother moves to Texas,” the child would finish at the same school she starts
at in Texas. Further, Marshall stated that, since 2017, she consistently recommended
the child not change school districts. However, Mother continues to change A.J.’s school
district. When asked if it was reasonable for Mother to live so far from her fiancée,
Marshall testified it is her job to determine what is in the best interest of the child, not what
is in the best interest of Mother and her relationship. Marshall believes what is in A.J.’s
best interest is stability. Marshall believes Mother is not making A.J. a priority, and this
has been an issue with both Father and Mother throughout the case.
{¶19} Marshall acknowledged that A.J. wants to move to Texas. Marshall testified
that simply because a child is fifteen years old does mean the child makes good decisions.
Further, that A.J.’s wishes are only one factor Marshall takes into consideration when she
is making a recommendation as to the best interest of the child. While what an older child
wants is a larger piece of the puzzle than what a younger child wants, Marshall still looks
at everything in the case and surrounding circumstances before making her
recommendation. Marshall believe she has a good understanding of what is going on
Perry County, Case No. 22-CA-00004 8
between A.J. and Father, and has taken that into consideration with her recommendation.
While A.J. articulates herself well, ultimately her wishes are different from what Marshall
believes is in her best interest.
{¶20} On December 7, 2020, the magistrate ordered Mother, Father, and the
attorney for the child to submit written closing arguments and findings of fact and
conclusions of law within fourteen days.
{¶21} On January 22, 2021, Father filed a motion for contempt and ex parte relief,
stating that Mother had absconded with A.J. to Texas in violation of a court order. The
motion stated Mother removed A.J. from Granville schools on December 18, 2020, and
enrolled A.J. at a school in Texas, without notifying Father. On the same day, Mother
filed a notice of change of address that contained an address in Texas. The trial court
granted the ex parte order and granted Father temporary custody of the child. The trial
court ordered Mother to immediately return the child to Ohio.
{¶22} The magistrate held hearings on February 4, 2021 and February 8, 2021.
Father testified he found out via an email from the school that Mother moved A.J. to Texas
and enrolled her in a new school. Father called Mother on January 8, 2021 to discuss
delaying his visit with A.J. due to a family member of Father’s testing positive for COVID.
Mother never told him during this phone conversation that she and the child moved to
Texas. When Mother sent A.J. back to Ohio after the court order, she did not tell Father
she was sending the child back, and A.J. appeared at his door. When A.J. returned,
Father enrolled her in school and counseling.
{¶23} Mother does not believe she misled the court at the previous hearing. She
testified she could not stay with her parents or her other daughter in Licking County
Perry County, Case No. 22-CA-00004 9
because they have animals that do not get along with her animals. Mother stated she
had no other option but to move to Texas and enroll the child there. Mother testified that
when she took the child to Texas, she knew there was a court order stating she was not
to relocate the child out of the state of Ohio, but she did not intend to violate the court
order. Mother did not notify Father when she moved the child to Texas on January 15,
2020. Mother considered her testimony at the December 4th hearing to be sufficient
notification. Mother did not notify Father that she took the child out of Granville schools
on December 18, but considered her testimony at the December 4th hearing to be
sufficient notification. Mother admits she did not give Father or the court her exact
address in Texas until January of 2021, but believes her testimony at the December
hearing was sufficient notice for both Father and the court.
{¶24} When Mother received the order from the court, she sent the child back to
Ohio the next day. The child’s maternal grandmother picked her up from the airport on
January 23, 2021. The child’s maternal grandmother did not notify Father she had the
child on the 23rd, but dropped the child off at Father’s house on January 25, 2021.
{¶25} The parties described an incident in January where Father asked A.J. to
see her school schedule and, when she refused, Father grabbed the paper out of A.J.’s
hand. A.J. then hit Father in the chest and scratched his face. Father grabbed A.J.’s arm
so she could not hit him anymore. A.J. requested to go to her maternal grandparents’
house, which Father allowed.
{¶26} The magistrate issued a detailed and thorough decision and order on April
28, 2021. The magistrate made detailed findings of fact. The magistrate reviewed the
concerns and cited the recommendations of Marshall. The magistrate first noted that
Perry County, Case No. 22-CA-00004 10
Mother has moved a significant number of times since the divorce in 2008. In 2010,
Father initiated a motion after Mother moved the child to Indiana. The child attended
three different schools while in Indiana. Mother and A.J. then returned home to Ohio,
where A.J. attended Riverview School District. Mother then moved A.J. from Riverview
to Tri-Valley, and then enrolled A.J. in Granville two days before high school started.
Further, Mother attempted to obtain a court order to allow A.J. to attend a private military
academy in Texas. The magistrate found the change of school districts was driven by
Mother’s life and relationship choices, and this has set the example for the child that all
your need to do to fix your problems is move, which has created major adjustment issues
for A.J.
{¶27} The magistrate acknowledged A.J.’s desire to move to Texas. As to the
testimony provided by A.J. during the in-camera interview, the magistrate found the minor
child “seemed coached” and articulated the same wishes and concerns about Father as
when she was younger. The magistrate found A.J.’s statements were similar to Mother’s
testimony. The magistrate stated, “while the minor child is a bright, pleasant child, the
court does not find her wishes and concerns to be authentic and cannot solely rely on her
wishes to determine whether a move is in her best interest.”
{¶28} The magistrate found Mother deliberately misled the court as to her plans
to move. While her testimony was that she could not remain in her rental home in
Granville after December 31, 2020, Mother has several other family members in Licking
County. The magistrate found Mother’s contention that she had no other choice but to
move twenty hours away in violation of a court order not credible. Additionally, the court
noted that, when Mother received the court order to return the child to Ohio, she did not
Perry County, Case No. 22-CA-00004 11
contact Father, but instead put the child on a plane, had her family pick up the child, and
drop off the child at Father’s house without notice.
{¶29} As to both parents, the magistrate found both Mother and Father
inappropriately involved law enforcement too often in this case, and both have
communication issues. Further, that Mother has engaged in a pattern of conduct (her
decisions to move or attempt to move) that has fueled most of the litigation in this matter.
The magistrate found the testimony was uncontroverted that, even with Mother having
custody and spending the bulk of the amount of time with A.J., the child is not doing well
emotionally, mentally, or academically. Despite this, Mother blames any problems that
occur on Father. Further, that Mother does not facilitate a positive relationship between
A.J. and Father because she used her best efforts to interfere with counseling.
{¶30} The magistrate found that while Father does have a temper, he and A.J.
were doing well in counseling. Father has an appropriate residence, with no plans to
move. The magistrate noted Marshall’s testimony that Father is not a danger to the child.
{¶31} The court found that, based upon the testimony and evidence as reflected
in the findings of fact, there is a change of circumstances, most notably the move, but
also Mother’s actions and inactions, and the family dynamic. Further, that the harm likely
to be caused by the change in environment is outweighed by the advantage to the minor
child.
{¶32} The magistrate then reviewed each best interest factor in detail, as follows:
(a) Mother wishes to retain custody and move the child to Texas, while Father wishes to
have custody or shared parenting and allow the child to have stability; (b) the court
interviewed the child multiple times and the child expresses an interest in moving to
Perry County, Case No. 22-CA-00004 12
Texas, however, the court cannot put weight on her wishes because she is heavily
influenced by Mother, creating doubt that the child’s wishes are authentic; (c) the child is
bonded to Mother and her family in Ohio; though the child has had issues with Father,
there is a bond between them; (d) the child has no ties to Texas, and has not been given
a meaningful opportunity to adjust to her home, school, and community due to frequent
home, school, and community changes; the child’s behavior declined and her grades
suffered; (e) Father may have anger issues, but he has been continued to be provoked
by Mother and Mother’s corruption of the child; Father has participated in counseling;
Mother’s defiant behavior causes the court to be concerned about her mental health and
how it is negatively impacting the child; (f) Father is the parent more willing to facilitate
visitation; there has been an extended power struggle between both parents, which is
harmful to the child; (i) Mother’s compliance is selective in honoring the visitation
schedule; and (j) Mother moved to Texas.
{¶33} The magistrate concluded it is not in A.J.’s best interest to move to Texas.
The magistrate stated the testimony at the hearing reflected these key points: under
Mother’s care, the minor child is academically in a downhill spiral; Mother’s intent at the
time of the hearing was that, even living in Texas, she would be ten hours away from her
fiancée’s worksite; and Mother’s fiancée is still married to another woman.
{¶34} The magistrate attached a child support worksheet and ordered Mother to
pay child support effective January 23, 2021. The magistrate ordered a 50% deviation
based upon in-kind contributions associated with travel expenses and ordered financial
contributions for the support and care of the minor child.
Perry County, Case No. 22-CA-00004 13
{¶35} The magistrate found Mother in contempt for willfully interfering in Father
and A.J.’s counseling and for her willful defiance of the court’s order not to change the
minor child’s school without a specific order from the court. The magistrate denied the
remainder of Father’s contempt motions. The magistrate sentenced Mother to thirty days
in jail and a fine of $250, but suspended both the sentence and the fine on the condition
that there are no further violations of the court order by Mother and Mother pays Father’s
attorney fees incurred as a result of pursuing the contempt motions. The court ordered
counsel for Father to submit invoices and an affidavit from counsel demonstrating the
fees are reasonable and customary.
{¶36} The magistrate ordered the GAL fees to be equally divided and ordered
Mother to pay for the fees for the attorney for the child.
{¶37} On May 10, 2021, Mother filed a motion for extension of time to file
objections. The trial court granted the motion. On May 14, 2021, Father filed initial
objections. On May 17, 2021, the magistrate issued a decision ordering Mother to pay
$7,825 in attorney fees for the contempt motions. Both Mother and Father filed
supplemental objections.
{¶38} The trial court issued a judgment entry on April 8, 2022. The trial court
found Father’s objections were not timely, and denied them as being out of rule.
{¶39} The court then ruled on Mother’s objections. First, the court determined
Mother failed to establish that Father abused the minor child, and cited the testimony from
Harper that A.J. is not in danger around Father and her testimony that the child never
stated that she was uncomfortable around Father due to physical or psychological abuse.
While Mother focused on the March 14th incident, Father put his arm out to hold A.J. from
Perry County, Case No. 22-CA-00004 14
hitting him again, which caused minor injury to A.J. During the other incident Mother
cited, when A.J. refused to show Father her school schedule, Father attempted to grab
the schedule and A.J. hit him in the chest and scratched his face.
{¶40} The court affirmed the magistrate’s finding of a change in circumstances,
citing the following: A.J. has been in seven different school districts; Mother has been
unable to provide a stable life for A.J.; A.J. doing poorly in school when residing with
Mother; the number of unexcused absences from school when A.J. was with Mother; and
the fact that A.J. is not doing well emotionally, mentally, or academically in Mother’s care,
despite the fact that Mother blames all of A.J.’s problems on Father. The court found the
harm likely to be caused by any change is outweighed by the advantages of change in
environment because Father can provide the stability Mother has been unable to provide.
As to Mother’s objections to the contempt findings, the court found Mother’s argument
that she was not served is without merit, as Mother and her counsel appeared and fully
participated in the hearings which included testimony about the contempt, and Mother did
not object to service at the hearing. Rather than objecting to service at the hearing,
Mother participated in the hearing and set forth her arguments against the contempt. The
court cited the November 1, 2019 order of the court not to move the minor child without
an order of the court and found there was no “emergency” causing Mother to move.
Further, that Mother interfered with counseling by delaying in signing releases, and
parking in Father’s driveway during counseling sessions, which allowed A.J. to leave
before the sessions were over. The trial court sustained Mother’s objection to the award
of attorney fees for the contempt motions. The court found Father’s affidavit stating the
fees were reasonable and customary was not sufficient to demonstrate what fees were
Perry County, Case No. 22-CA-00004 15
reasonable and customary. The court suggested an affidavit from an attorney would be
a more appropriate way in which to demonstrate reasonable and customary fees.
{¶41} The trial court ordered Mother to pay the fees for A.J.’s appointed attorney
because Mother filed the motion to appoint the attorney and Father objected to the
appointment as being an unnecessary expense. The court additionally found the
magistrate gave A.J.’s attorney the opportunity to submit a closing argument, but she did
not do so.
{¶42} Both Mother and Father appeal the April 8, 2022 judgment entry of the Perry
County Court of Common Pleas.
{¶43} Mother assigns the following as error:
{¶44} “I. THE TRIAL COURT ERRED BY GRANTING CUSTODY TO THE
FATHER AGAINST THE CHILD’S WISHES AND REFUSED TO COMPLY WITH
STATUTORY AND CASE LAW THAT WHERE THE CHILD IS AT AN AGE, MATURITY
LEVEL, AND REASONING ABILITY AND SHE HAS BEEN ABUSED BY A PARENT,
THE COURT MUST COMPLY WITH THE CHILD’S CHOICE TO LIVE WITH THE
PARENT WHO IS NOT ABUSING HER AND NO OTHER FACTORS CAN TRUMP HER
CHOICE UNDER SUCH A CIRCUMSTANCE.
{¶45} “II. THE TRIAL COURT ERRED IN GRANTING CUSTODY TO THE
FATHER, WHERE THERE HAS NOT BEEN PROOF OF A SUBSTANTIAL CHANGE IN
CIRCUMSTANCES, CHANGE IN CIRCUMSTANCES MUST ATTACH AS OF THE
DATE THE MOTION IS FILED (ABSENT ANOTHER MOTION BEING FILED), AND
MOTHER’S MOVE TO TEXAS IS NOT A CHANGE IN CIRCUMSTANCES IN ITSELF.
Perry County, Case No. 22-CA-00004 16
{¶46} “III. THE TRIAL COURT ERRED BY FINDING [MOTHER] IN CONTEMPT
FOR THE MOVE TO TEXAS DUE TO THE ‘EMERGENCY’ LANGUAGE IN THE
NOVEMBER 1, 2019 ENTRY, BECAUSE THERE WAS NO SHOWING OF AN
INTENTIONAL DISOBEDIANCE OF A COURT ORDER, AND BECAUSE SHE WAS
NOT SERVED WITH THE MOTION FOR CONTEMPT.
{¶47} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING AN
ATTORNEY ADVOCATE FOR THE CHILD, BUT NOT ALLOWING THE CHILD’S
ATTORNEY TO FILE A REPORT, ISSUE FINDINGS AND CONCLUSIONS, A WRITTEN
CLOSING ARGUMENT, OR TO TESTIFY ON BEHALF OF THE CHILD.
{¶48} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
[MOTHER] TO PAY BOTH THE GAL FEES AND ALL OF THE FEES FOR THE CHILD’S
ATTORNEY.
{¶49} “VI. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING,
AFTER THE HEARINGS, TO HAVE THE PARTIES HAVE A MENTAL HEALTH
EVALUATION AND TO FILE THE RESULTS ONTO THE PUBLIC RECORD IN
VIOLATION OF MEDICAL PRIVILEGE; AND TO HAVE THE PARTIES ATTEND
COPARENTING COUNSELING FOR A CHILD THAT IS ALMOST EIGHTEEN AND
WHERE THERE IS A HISTORY OF DOMESTIC VIOLENCE BY [FATHER].”
{¶50} Father assigns the following as error:
{¶51} “I. THE TRIAL COURT ERRED BY CONSIDERING [MOTHER’S]
OBJECTIONS TO THE MAGISTRATE’S DECISION FILED APRIL 28, 2021 AND THE
MAGISTRATE’S DECISION FILED MAY 17, 2021 AS [MOTHER] FAILED TO TIMELY
FILE HER OBJECTIONS PURSUANT TO OHIO CIVIL RULE 53(D)(3)(b); THEREFORE
Perry County, Case No. 22-CA-00004 17
[MOTHER’S] OBJECTIONS TO BOTH MAGISTRATE’S DECISIONS SHOULD HAVE
BEEN OVERRULED.
{¶52} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER
[FATHER’S] OBJECTIONS TO THE MAGISTRATE’S DECISION ON THE BASIS THAT
[FATHER’S] OBJECTIONS WERE NOT TIMELY FILED PURSUANT TO OHIO CIVIL
RULE 53(D)(3)(b); AND THEREFORE, THE TRIAL COURT SHOULD HAVE
CONSIDERED [FATHER’S] OBJECTIONS AND RULED ON SUCH, AS SUCH WERE
TIMELY FILED IN ACCORDANCE WITH OHIO CIVIL RULE 53(D)(3)(b).
{¶53} “III. THE TRIAL COURT ERRED WHEN IT RULED THAT [FATHER’S]
AWARD FOR ATTORNEY FEES WOULD NOT BE ALLOWED ON THE BASIS THAT
APPELLEE WAS NOT QUALIFIED TO ATTEST TO THE REASONABLENESS OF THE
ATTORNEY FEES TO BE AWARDED, AND INSTEAD INDICATED THAT THE PROPER
PROCEDURE REQUIRED THE TESTIMONY OF AN ATTORNEY REGARDING THE
REASONBLENESS OF ATTORNEY FEES; AND, THEREFORE, NOT ORDERING AN
AWARD OF ATTORNEY FEES UPON THE FINDING OF CONTEMPT AS REQUIRED
BY SECTION 3109.051(K) OF THE OHIO REVISED CODE.
{¶54} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD [FATHER]
ATTORNEY FEES UPON THE FINDING OF CONTEMPT AS REQUIRED BY SECTION
3109.051(K) OF THE OHIO REVISED CODE.
{¶55} “V. THE TRIAL COURT ERRED IN FAILING TO CORRECT CLEAR
MISTAKES IN THE CHILD SUPPORT ORDER UPON ITS DE NOVO REVIEW DESPITE
ITS RULING THAT [FATHER] FAILED TO TIMELY FILE HIS OBJECTIONS TO THE
MAGISTRATE’S DECISION.”
Perry County, Case No. 22-CA-00004 18
Standard of Review
{¶56} Our standard of review in assessing the disposition of child custody matters
is that of abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988).
Furthermore, as an appellate court reviewing evidence in custody matters, we do not
function as fact finders; we neither weigh the evidence nor judge the credibility of the
witnesses. Id. Our role is to determine whether there is relevant, competent, and credible
evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger,
5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386. The trial court “is best able to view
the witnesses and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proferred testimony.” Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review in a child
custody determination is especially crucial “where there may be much evidence by the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
Mother’s Assignments of Error
I.
{¶57} In her first assignment of error, Mother argues the trial court committed error
in refusing to honor A.J.’s wishes to live with Mother in Texas.
{¶58} Mother first contends that R.C. 3109.04(B)(2)(2) requires that, if there is a
child interview and the trial court determines the child is mature enough, the trial court
must comply with the child’s wishes absent “special circumstances.” We disagree with
Mother’s interpretation of the statute. R.C. 3109.04(B)(1) provides that in any proceeding
for modification of a prior order of the court making an allocation of parental rights, the
Perry County, Case No. 22-CA-00004 19
“court shall take into account that which would be in the best interest of the child.” Further,
that, “in determining the child’s best interest * * * the court * * * shall interview in chambers
any or all of the involved children regarding their wishes and concerns with respect to the
allocation.” R.C. 3109.04(B)(2) states that, if the court interviews the child for best interest
purposes, section (B)(2)(b) applies. R.C. 3109.04(B)(2)(b) provides as follows:
The court first shall determine the reasoning ability of the child. If the court
determines that the child does not have sufficient reasoning ability to
express the child’s wishes and concern with respect to the allocation of
parental rights and responsibilities for the care of the child, it shall not
determine the child’s wishes and concerns with respect to the allocation. If
the court determines that the child has sufficient reasoning ability to express
the child’s wishes or concerns with respect to the allocation, it then shall
determine whether, because of special circumstances, it would not be in the
best interest of the child to determine the child’s wishes and concerns with
respect to the allocation. If the court determines that, because of special
circumstances, it would not be in the best interest of the child to determine
the child’s wishes and concerns with respect to the allocation, it shall not
determine the child’s wishes and concerns with respect to the allocation and
shall enter its written findings of fact and opinion in the journal. If the court
determines that it would be in the best interests of the child to determine the
child’s wishes and concerns with respect to the allocation, it shall proceed
to make that determination.
Perry County, Case No. 22-CA-00004 20
{¶59} Pursuant to the plain language of the statute, the “special circumstances”
language clearly applies to a situation where, despite a child having sufficient reasoning
ability to express his or her wishes, due to “special circumstances,” it would not be in the
best interest of the child to determine the child’s wishes. Here, the magistrate and trial
court held multiple interviews with the child, and determined her wishes were to move to
Texas with Mother. However, simply because R.C. 3109.04(B)(2)(b) states the trial court
must determine the child’s wishes does not mean that is the end of the inquiry. There is
a clear distinction in the statute between determining the wishes and concerns of the child
and following the wishes and concerns of the child. Schottenstein v. Schottenstein, 2001-
Ohio-3987, 10th Dist. Franklin Nos. 00AP-1088, 01AP-94, 00AP-1284, 01AP-95, 01AP-
36, 01AP-227, appeal dismissed, 98 Ohio St.3d 1210, 2003-Ohio-1088, 784 N.E.2d 1182;
In the Matter of Haley, 3rd Dist. Hancock No. 5-92-5, 1992 WL 209309 (a child is not the
sole determiner of who he lives with; the trial court must determine the child’s wishes and
concerns in conjunction with the child’s best interest; a trial court can deny the wishes of
the child when conditions indicate it is not in the best interest of the child); In re R.L.S.,
12th Dist. Warren No. CA2013-12-117, 2014-Ohio-3294 (even if a child is competent, a
child’s wishes and concerns is one factor among a number of factors in determining
custody and is not dispositive of a custody determination).
{¶60} Rather, the trial court must determine what is in the best interest of the child,
as R.C. 3109.04(E) requires the court to find a change in circumstances, to find the
advantages outweigh the harm, and to find that modification is necessary to serve the
best interest of the child. That is precisely what the magistrate and trial court did in this
case. Thompson v. Thompson, 5th Dist. Stark No. 2018CA00074, 2019-Ohio-274 (if a
Perry County, Case No. 22-CA-00004 21
change in circumstances is established, the trial court must weigh the best interest of the
child pursuant to the factors in R.C. 3109.04(F) before modifying a residential-parent
designation). The magistrate and trial court did not place as much weight as Mother
contends they should have on the child’s wishes. However, the magistrate and trial court
specifically explained their reasoning for this, i.e., because the child’s wishes did not seem
authentic and the child seemed coached by Mother. As this Court has stated, the wishes
of the child are merely one factor in the best interest of the child determination and “clearly
it is not the controlling factor and should not be the only factor upon which a trial court
bases its decision.” B.S. v. M.M., 5th Dist. Stark No. 2020 CA 00111, 2021-Ohio-176.
{¶61} Mother also argues that R.C. 3109.04(B)(2)(b) specifically applies in
situations where there is abuse. There is no language in R.C. 3109.04(B)(2)(b) regarding
abuse. Further, we find no abuse of discretion in the trial court’s determination that
Mother failed to establish Father abused the child. Harper testified that A.J. is not in
danger around Father. Officer Wiseman is not concerned about Father’s actions. The
paternal grandmother, who resides with Father, has never seen Father be physically or
emotionally violent with the child. The GAL has no concerns about the child in Father’s
care, and testified it is in the child’s best interest for him to be named the residential parent
for school purposes. As noted by the trial court, the incidents cited by Mother are
incidents during which Father’s actions were the result of the child slapping him in the
face while driving and the child hitting Father in the chest and scratching his face.
{¶62} Mother contends that this Court has “consistently and recently held” where
a child is of sufficient age and reasoning ability, the child’s wishes are sufficient to
determine custody. We disagree. In the first case cited by Mother, B.S. v. M.M., we
Perry County, Case No. 22-CA-00004 22
specifically stated that the wishes of the child are merely one factor in the best interest of
the child determination and “clearly it is not the controlling factor and should not be the
only factor upon which a trial court bases its decision.” B.S. v. M.M., 5th Dist. Stark No.
2020 CA 00111, 2021-Ohio-176. Similarly, in the other cases cited by Mother, we held
that the wishes of the child constitute merely one factor that a trial court must consider in
determining the best interest of the child. Thompson v. Thompson, 5th Dist. Stark No.
2018-CA-00074, 2019-Ohio-274; B.C. v. S.D., 5th Dist. Licking No. 2021-CA-00027,
2021-Ohio-2963.
{¶63} Upon review, we find the magistrate set forth each factor contained in R.C.
3109.04(F) and analyzed each of the factors with regard to the evidence and testimony
provided in the case. We find there is competent and credible evidence to support the
magistrate’s conclusions with regard to these factors. Although Mother provided contrary
testimony to several of the statutory best-interests factors, we defer to the trial court’s
interpretation and weight of the evidence, as it observed first-hand witnesses and their
demeanor. Wright v. Wright, 5th Dist. Stark No. 2012CA00232, 2013-Ohio-4138. No one
factor is dispositive of the child’s best interest and the court has discretion to weigh the
factors. B.S. v. M.M., 5th Dist. Stark No. 2020 CA 00111, 2021-Ohio-176.
{¶64} We find no abuse of discretion in the trial court’s conclusion it was in the
best interest of the child to grant shared parenting to Mother and Father, with both parents
being designated residential parents and legal custodians of the minor child, and Father
being designated the school placement parent for the child. Mother’s first assignment of
error is overruled.
Perry County, Case No. 22-CA-00004 23
II.
{¶65} In her second assignment of error, Mother argues the trial court committed
error in finding a change in circumstances because a move alone is not sufficient to
demonstrate a change in circumstances.
{¶66} The statute creates a strong presumption in favor of retaining the residential
parent designation. Accordingly, a court must find all of the following when modifying a
prior parental rights and responsibilities decree pursuant to R.C. 3109.04(E)(1): (1) an
initial threshold showing a change in circumstances; (2) if circumstances have changed,
the modification of custody must be in the child’s best interest; and (3) any harm to the
child from a modification of the plan must be outweighed by the advantage of such
modification. R.C. 3109.04(E)(a)(1).
{¶67} “The purpose of requiring a finding of a change in circumstances is to
prevent a constant re-litigation of issues that have already been determined by the trial
court.” Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453(3rd Dist.). 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). 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). However, the change need not be substantial. Id.{¶68} Relocation alone is not sufficient to constitute a change in circumstances,
but may be a factor in such determination. Thompson v. Thompson, 5th Dist. Stark No.
2012CA00176, 2013-Ohio-2587. Despite Mother’s assertion, Mother’s relocation was not
Perry County, Case No. 22-CA-00004 24
the only reason the trial court found a change in circumstances. Rather, the trial court
set forth several bases to support its finding, as follows: Mother’s relocation to Texas, the
number of school districts A.J. attended (seven by the time she entered high school), lack
of stability, multiple unexcused absences at school while Mother was the residential
parent, and poor grades the past two years while Mother was the residential parent.
{¶69} Upon review, we find the trial court did not abuse its discretion in finding a
change in circumstances. As noted above, the trial court is “best able to view the
witnesses and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proferred testimony.” Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Our role is to determine whether
there is relevant, competent, and credible evidence upon which the fact finder could base
his or her judgment. Dinger v. Dinger, 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-
1386.
{¶70} We find there is competent and credible evidence upon which the fact finder
could base her judgment as to a change in circumstances. Father and the GAL both
testified, and the exhibits demonstrated, that A.J.’s grades the last several years were
poor. Both Father and the GAL testified to A.J.’s excessive unexcused absences.
Further, there is no dispute that A.J. attended seven different school districts as of the
date she entered high school. While Mother does not believe this harmed the child in any
way, Father testified this lack of stability has impacted A.J. Further, the GAL testified that
A.J. needs stability in her life, which Mother cannot provide. The GAL specifically asked
Mother to stop moving school districts, to no avail.
Perry County, Case No. 22-CA-00004 25
{¶71} Taking into consideration the various circumstances, including the poor
attendance of the child at school, the child’s poor grades, the lack of stability due to
constant changing of school districts, and Mother’s relocation to Texas, we find there is
no abuse of discretion in the trial court’s determination of a change in circumstances.
{¶72} Mother contends that since she did not move until after Father filed his
motion for reallocation, the move cannot be considered in the change of circumstances
decision. We disagree. We have held that, “in general courts review motions to modify
orders based upon the circumstance as it existed at the time of the filing of the motion * *
* however, if necessary, in determining a change of circumstances, a domestic relations
court may consider developments that occurred after the motion was filed.” Sims v.
Durant, 5th Dist. Fairfield No. 2008-CA-27, 2008-Ohio-6442; Hagan v. Hagan, 5th Dist.
Delaware No. 18 CAF 03 0030, 2019-Ohio-51; Dyer v. Gomez, 7th Dist. Noble No. 21
NO 0484, 2022-Ohio-1127. We rationalized that, “if a court could not consider events as
they continued to unfold once a custody motion is filed, the trial court would be perpetually
re-addressing new filings alleging a change in circumstances due to the inevitable
passage of time between the filing of the original custody motion and the date of the
hearing on the motion.” Hagan v. Hagan, 5th Dist. Delaware No. 18 CAF 03 0030, 2019-
Ohio-51. We find no abuse in the discretion in the trial court taking into consideration
Mother’s move, particularly since Mother moved the child’s school district in violation of a
court order, between the time the hearing was held and the magistrate’s decision was
issued, with no notice to Father or the court until after the moved was completed. The
move was thoroughly discussed and argued at the December hearing, and was again
argued at the February hearings. Mother’s second assignment of error is overruled.
Perry County, Case No. 22-CA-00004 26
III.
{¶73} Father filed several motions for contempt during the pendency of this case.
The trial court found Mother in contempt for moving to Texas in violation of a court order
and in willfully interfering with Father and A.J.’s counseling. In her third assignment of
error, Mother argues the trial court committed error in finding her in contempt.
{¶74} Our standard of review regarding a finding of contempt is limited to a
determination of whether the trial court abused its discretion. Sloat v. James, 5th Dist.
Stark No. 2008 CA 00048, 2009-Ohio-2849. In order to find an abuse of discretion, we
must determine the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). The burden of proof
in a civil contempt action is proof by clear and convincing evidence. Sloat v. James, 5th
Dist. Stark No. 2008 CA 00048, 2009-Ohio-2849. The determination of “clear and
convincing evidence” is within the discretion of the trier of fact. Id. The trial court’s
decision should not be disturbed as against the manifest weight of the evidence if the
decision is supported by some competent and credible evidence. C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the credibility of
the witnesses and evidenced submitted before the trial court. Geary v. Geary, 5th Dist.
Delaware No. 14CAF050033, 2015-Ohio-259.
{¶75} Mother contends the trial court abused its discretion in finding her in
contempt for the move to Texas, as Mother believes the move was an “emergency”
pursuant to the court’s previous order. The court order at issue is dated November 1,
2019, and states, “the minor child shall remain in Granville School District. The minor
Perry County, Case No. 22-CA-00004 27
child shall not move to any alternative school district absent a specific order of the court.
Absent an emergency, any motion to change school district shall be filed by May 1. The
Court finds that if Mother facilitates a change without a court order it shall be grounds for
Father to be deemed residential parent for school placement purposes.”
{¶76} We find the trial court did not abuse its discretion in finding Mother in
contempt. After considering Mother’s testimony, the trial court did not find her explanation
for her non-compliance with the court’s order to qualify as an emergency. The trial court
noted that Mother had several family members with homes in Licking County, and that
Mother did not testify to what efforts she made to remain in Ohio pending the decision of
the magistrate, but instead had made up her mind to move to Texas and created the
“emergency.” The trial court, as the trier of fact, “is the sole judge of the weight of the
evidence and the credibility of the witnesses.” McKay Machine Co. v. Rodman, 11 Ohio
St.2d 77, 228 N.E.2d 304 (1967). We do not find the trial court’s decision to be arbitrary,
unconscionable, or unreasonable.
{¶77} Mother additionally argues the contempt is an abuse of discretion because
she was not served with the motion for contempt for the move to Texas. Mother suggests
that since the return certified mail form was signed by an “agent,” the service was not
sufficient. Mother cites no legal authority for this proposition.
{¶78} The Ohio Civil Rules regarding notice apply when the contempt is civil in
nature. Bierce v. Howell, 5th Dist. Delaware No. 06 CAF 05 0032, 2007-Ohio-3050. Civil
Rule 75(J) provides for the continuing jurisdiction of a court in divorce cases, and
provides, “notice of which shall be served in the manner provided for the service of
process under Civ. R. 4 to 4.6.” Civil Rule 4.3 provides the clerk may serve an individual
Perry County, Case No. 22-CA-00004 28
out-of-state in the same manner as provided in Civil Rule 4.1(A)(1) through Civil Rule
4.1(A)(3). Pursuant to Civil Rule 4.1(A), service of process via certified mail is “evidenced
by return receipt signed by any person.” The certified mail return receipt is signed in this
case and was delivered to the address Mother provided in her notice of change of
address. Civil Rule 4.1(A) “does not require that delivery is restricted to the defendant or
to a person authorized to receive service of process on the defendant’s behalf. When
service is attempted by certified mail, a signed receipt returned to the sender establishes
a prima facie case of delivery to the addressee.” TCC Mgt., Inc. v. Clapp, 10th Dist.
Franklin No. 05AP-42, 2005-Ohio-4357. Further, “valid service of process is presumed
when any person at the defendant’s address received the certified mail envelope.” Id.;
Progressive Direct Ins. Co. v Williams, 3rd Dist. Marion No. 9-21-26, 2022-Ohio-887.
{¶79} “Courts will presume service to be proper in cases where the civil rules are
followed unless the defendant rebuts the presumption by sufficient evidence.” State ex
rel. Fairfield County CSEA v. Landis, 5th Dist. Fairfield No. 2002 CA 00014, 2002-Ohio-
5432. The certified mail return receipt creates a rebuttable presumption that proper
service was perfected. Upon this record, we find Mother has offered no evidence, other
than the arguments in her brief, to rebut the presumption that service of the motion was
perfected.
{¶80} Additionally, assuming arguendo there was an issue with the service of the
contempt motion, we find Mother waived this issue. At the hearings on February 4 and
February 8, Mother made no objection to the contempt motion based on a lack of personal
service. Counsel for Mother elicited her testimony about the contempt motion on direct
examination, and specifically asked her whether she intended to violate the November
Perry County, Case No. 22-CA-00004 29
2019 court order. Further, she presented her defense to the motion for contempt at the
hearing, i.e. that the move to Texas was an emergency. Counsel for Father cross-
examined her on the issue. Mother answered questions on both direct and cross-
examination regarding the contempt issue without objecting as to the lack of service.
“Where a party appears in court, fails to object to proper service pursuant to Civil Rule
75(J), and defends on the merits of the case, that party will be deemed to have waived
the issue of improper service.” Smith v. Smith, 4th Dist. Hocking No. 18CA11, 2019-Ohio-
899; Donlon v. Lineback, 12th Dist. Warren Nos. CA2016-03-015, CA2016-03-016, 2016-
Ohio-7739 (parties litigated contempt motion without raising lack of service, so waived
insufficient service argument); Shankle v. Egner, 5th Dist. Stark Nos. 2011 CA 00121,
2011 CA 00143, 2012-Ohio-2027 (evidence in case that appellant received summons
and complaint because she telephoned counsel upon receipt). Mother failed to object to
proper service and actually defended on the contempt issue; accordingly, we find the trial
court did not commit error in finding Mother in contempt.
{¶81} Mother makes a cursory argument about the contempt issued for her
interference with counseling, arguing only that, “it is requested that the court reverse the
court’s finding of contempt regarding her alleged interference with visitation for waiting for
[A.J.] in the car.” We find no abuse of discretion in finding Mother in contempt for
interference with counseling. Mother’s counsel asked her on direct examination about
contempt with regard to counseling and Mother denied any contempt. However, Harper
described how Mother would sit in the driveway during the child’s counseling sessions
with Father, allowing the child to leave the sessions early, despite Harper asking Mother
not to. Further, Mother delayed in signing the initial release and delayed in signing the
Perry County, Case No. 22-CA-00004 30
release for Harper to speak to A.J.’s individual counselor. The trial court, as the trier of
fact, “is the sole judge of the weight of the evidence and the credibility of the witnesses.”
McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 228 N.E.2d 304 (1967). We do not
find the trial court’s decision to be arbitrary, unconscionable, or unreasonable.
{¶82} Mother’s third assignment of error is overruled.
IV.
{¶83} In her fourth assignment of error, Mother contends the trial court abused its
discretion in not allowing the child’s attorney to file a report, issue findings of fact and
conclusions of law, submit a written closing argument, or testify on behalf of the child.
Attorney Stacy Jewell was appointed as independent counsel for the child at Mother’s
request.
{¶84} We first note that we question whether Mother has standing to present this
argument, as Attorney Jewell was appointed to represent the child, not Mother, and
Attorney Jewell has not appealed the trial court’s order.
{¶85} However, even if Mother has standing to make this argument, we find the
trial court did not abuse its discretion. Despite Mother’s claims, the magistrate did permit
Attorney Jewell to file a written closing argument, findings of fact and conclusions of law,
and a proposed long-distance visitation schedule. In a December 7, 2020 magistrate’s
order, the magistrate stated, “Plaintiff, Defendant, and the Attorney for the minor child
shall prepare the following within 14 days of this Magistrate’s Order * * * written closing
arguments not to exceed 5 pages; proposed findings of fact and conclusions of law; [and]
a proposed long-distance visitation schedule.” Attorney Jewell chose not to submit these
Perry County, Case No. 22-CA-00004 31
items, perhaps as a cost-saving measure. She was not precluded from doing so by the
magistrate or the trial court as Mother suggests.
{¶86} Mother next contends Attorney Jewell should have been permitted to file a
report like a guardian ad litem. We first note that Attorney Jewell did not ask to file a
report. Further, Mother cites no authority for the proposition that independent counsel
should, or is permitted to, file a report with recommendations. A guardian ad litem is
specifically tasked with filing a report with recommendations by Ohio Rules of
Superintendence 48.06 and 48.03. No such rule exists for independent counsel
appointed for a child, as a guardian ad litem and an attorney for the child serve two
different roles.
{¶87} Finally, Mother argues the trial court abused its discretion in not permitting
Attorney Jewell from testifying. Mother cites no authority for her argument. Attorney
Jewell did not ask to testify and Mother did not call Attorney Jewell as a witness.
Additionally, as noted by the trial court, it is not the role of an attorney to provide testimony
to the court. This ruling complies with Ohio Professional Rule of Conduct 3.7(a).
{¶88} During the hearing on December 4, 2020, and the hearings on February 4
and February 8, 2021, Attorney Jewell attended the hearings, and cross-examined each
witness. Attorney Jewell made it clear through her cross-examination of each witness
what the child’s position was, i.e., that she wanted to move to Texas, and advocated in
accordance with the child’s wishes. Further, Attorney Jewell attended the in-camera
interview the court held with the child, and made sure A.J.’s wishes were known to the
court during the interview. See In re Spears, 5th Dist. Fairfield Nos. 05CA7, 05CA8,
05CA9, 05CA10, 2005-Ohio-4498. Mother’s fourth assignment of error is overruled.
Perry County, Case No. 22-CA-00004 32
V.
{¶89} In her fifth assignment of error, Mother contends the trial court abused its
discretion in ordering Mother to pay half of the GAL fees and all of the fees for A.J.’s
independent counsel. We disagree.
{¶90} Civil Rule 75(B)(2) states, “* * * the court may * * * appoint a guardian ad
litem and legal counsel, if necessary, for the child and tax the costs.” The trial court has
discretion over the amount of GAL fees, as well as the allocation to either or both of the
parties. Karales v. Karales, 10th Dist. Franklin No. 05AP-856, 2006-Ohio-2964. We
review an award of GAL fees and other litigation expenses under an abuse of discretion
standard. In re S.B., 11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162.
{¶91} Mother suggests that because the GAL was “acting on behalf” of Father,
Father should have to pay all of the GAL fees. We disagree with Mother’s assertion that
the GAL was “acting on behalf” of Father. Rather, the GAL compiled a thorough report
and gave detailed testimony. Simply because the GAL did not give the recommendation
Mother wanted does not mean the GAL was not impartial or not in compliance with her
duties pursuant to the Ohio Rules of Superintendence. The lack of the GAL’s bias is
evident from the fact that in both her 2017 and 2019 reports, the GAL recommended
Mother remain the residential parent, and the fact that the GAL recommended shared
parenting if Mother remained in Ohio. The GAL complied with Ohio Rules of
Superintendence, including providing the court a recommendation of the best interest of
the child, maintaining objectivity and fairness, acting with respect and courtesy, and
attending hearings. The Ohio Rules of Superintendence specifically recognize that,
“recommendations of the best interest of the child may be inconsistent with the wishes of
Perry County, Case No. 22-CA-00004 33
the child whose interest the guardian ad litem represents or other parties.” Rule
48.03(A)(1). We find no abuse of discretion in the trial court dividing the GAL fees equally
in this case.
{¶92} We further find the trial court did not abuse its discretion in ordering Mother
to pay 100% of the fees for A.J.’s independent counsel. On September 8, 2020, Mother
made a motion to appoint an attorney advocate for A.J. Father opposed the motion, citing
the extra expense since the parties involved were aware of A.J.’s opinion and desire to
move to Texas. The court granted Mother’s motion and appointed Attorney Jewell.
Attorney Jewell attended the hearings, cross-examined each witness, and made
appropriate motions. She made sure A.J. was allowed to express her clear preference
to move to Texas with Mother.
{¶93} Mother’s fifth assignment of error is overruled.
VI.
{¶94} In her sixth assignment of error, Mother argues the trial court abused its
discretion in ordering the parties to have a mental health evaluation and in ordering the
parties to engage in counseling. Subsequently, Mother filed a notice to dismiss the first
portion of her argument because the trial court sustained her objection as to the mental
health evaluation and found the parties did not have to undergo a mental health
evaluation.
{¶95} Accordingly, the only issue remaining in Mother’s sixth assignment of error
is the order for the parties to participate in co-parenting counseling. We review matters
relating to the allocation of parental rights and responsibilities for an abuse of discretion.
Mother fails to demonstrate how the trial court acted in an unreasonable, unconscionable,
Perry County, Case No. 22-CA-00004 34
and arbitrary manner in ordering the parties to attend co-parenting counseling. It is clear
from the record that Mother and Father have serious difficulty in communicating with each
other regarding A.J., despite the necessity to do so because of the distance between
them. This is reinforced by the GAL’s testimony.
{¶96} In his brief, Father states he does not oppose Mother’s request, and asks
this Court to issue an order terminating the counseling. We decline to do so, as our role
as an appellate court is only to review whether the trial court’s order for counseling is an
abuse of discretion. The trial court specifically stated in its judgment entry that the parties
could mutually agree to discontinue the counseling. The parties should file a notice with
the trial court that they have mutually agreed to discontinue the co-parenting counseling.
Mother’s sixth assignment of error is overruled.
Father’s Appeal
I.
{¶97} In his first assignment of error, Father argues the trial court committed error
in considering Mother’s objections to the magistrate’s opinion. Father contends that a
party cannot file a motion for extension of time to file objections, but instead has to file
objections and supplement them later. We disagree.
{¶98} Civil Rule 53(D)(3)(b)(i) provides, “a party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision.” However, Civil
Rule 53(D)(3)(b)(5) provides, “for good cause shown, the court shall allow a reasonable
extension of time for a party to file * * * objections to a magistrate’s decision. ‘Good cause’
includes, but is not limited to, a failure by the clerk to timely serve the party seeking the
extension with the magistrate’s order or decision.” Civil Rule 53(D)(5) does not define
Perry County, Case No. 22-CA-00004 35
“good cause,” other than stating it includes, but is not limited to, where the clerk fails to
timely serve a party. The determination of what constitutes good cause is determined on
a case-by-case basis. White v. Grange Ins. Co. 2nd Dist. Montgomery No. 29151, 2022-
Ohio-497; Churchill v. Churchill, 6th Dist. Erie No. E-21-023, 2022-Ohio-1530. A trial
court has discretion to determine whether to grant a motion for extension of time, and this
Court will not reverse that decision absent an abuse of discretion. Id.{¶99} Father cites this Court’s case of Falvey v. Falvey in support of his argument.
However, in that case, we did not issue a bright-line rule that a party cannot file, and a
trial court cannot grant, a motion for extension to file objections. 5th Dist. Fairfield No.
09-CA-0061, 2010-Ohio-2144. Rather, we held that while Civil Rule 53(D)(5) provides
for an extension to file objections for “good cause,” the trial court in the Falvey case did
not abuse its discretion in finding the appellant did not demonstrate good cause as to why
objections could not be filed within the fourteen-day time period.
{¶100} We find the trial court did not abuse its discretion in granting Mother’s
motion for extension to file objections, and in considering her objections to the
magistrate’s decision in this case. See Greene v. Greene, 5th Dist. Licking No. 07 CA
87, 2008-Ohio-2829 (trial court acted within the parameters of its authority and granting
two extensions to file objections). Father’s first assignment of error is overruled.
II. & V.
{¶101} In Father’s second assignment of error, he contends the trial court
committed error in finding his objections untimely. In Father’s fifth assignment of error,
he argues that, even if his objections were untimely, the trial court committed error
because there were several clear errors in the child support calculation.
Perry County, Case No. 22-CA-00004 36
{¶102} In support of his second assignment of error, Father cites Civil Rule
53(D)(3)(b)(i), which provides, “if any party timely files objections, any other party may
also file objections not later than ten days after the first objections are filed.” Father
reasons that Mother’s motion for extension of time to file objections permitted him to file
objections until ten days after that date. We have previously held that, when a party timely
files objections within the fourteen-day period, the other party has ten days after that date
to file objections. Canton Asphalt Co. v. Fosnaught, 5th Dist. Stark Nos. 2010 CA 00201,
2010 CA 00202, 2011-Ohio-1329; In the Matter of K.D., 5th Dist. Licking No. 18 CA 0026,
2018-Ohio-3454. However, the facts in this case are distinguishable because the issue
in this case is whether Mother’s motion for extension qualifies as a “timely objection”
pursuant to Civil Rule 53(D)(3)(b)(i). Father cites no authority other than the language
contained in Civil Rule 53(D) for his argument that he is entitled to file his objections ten
days from a motion for extension, and it appears this Court has not previously ruled on
the issue.
{¶103} However, we find it is not necessary to decide whether a motion for
extension or a granting of a motion for extension qualifies as a “timely objection,” because
the three errors Father cites in his brief are defects evident on the face of the magistrate’s
decision which prohibit the adoption of the magistrate’s decision on that issue, even in
the absence of objections, pursuant to Civil Rule 53(D)(3)(b)(iv). Mott v. Morgan, 5th Dist.
Delaware No. 21 CAG 02 0011, 2021-Ohio-3026.
{¶104} First, on the child support worksheet, Mother is credited with having a minor
child other than A.J., which reduced her income for child support purposes. However,
during the December hearing, counsel for Mother stipulated that “there’s no other minor
Perry County, Case No. 22-CA-00004 37
children and no daycare” (T. at p. 241). Additionally, in Mother’s “information for child
support worksheet,” filed on December 21, 2020, Mother states, “Plaintiff has no other
minor children.” Second, pursuant to the shared parenting plan adopted by the trial court,
Mother has parenting time for Spring Break, six weeks in the summer, three days at
Thanksgiving, and one week at Christmas. It is clear this is less than 90 overnights per
year. However, on the child support worksheet, the trial court gave Mother a 10%
reduction on the basis that Mother had the child ninety or more overnights per year. Third,
the magistrate listed Mother’s annual gross income at $28,464 per year. However, the
paystubs attached to Mother’s information for child support filed on December 21, 2020
show that Mother earned $18 per year and worked from 36 to 40 hours per week. At the
February hearing, Mother testified she works 40 hours a week at $16 per hour. At the
lowest of these undisputed figures, Mother’s gross yearly income is $33,280, not $28,464
in the worksheet prepared by the magistrate.
{¶105} Based on the undisputed evidence, we find the trial court committed error
in these three lines of the child support worksheet. Father’s second and fifth assignments
of error are sustained in part.
III.
{¶106} In his third assignment of error, Father contends the trial court committed
error and requests this Court reinstate the attorney fee award issued by the magistrate.
Father contends that his affidavit and/or the inherent knowledge of the court was sufficient
to determine the reasonableness of the fees.
{¶107} Pursuant to R.C. 3109.73(B) and/or R.C. 2705.02, an award of attorney fees
is in within the sound discretion of the trial court. “While the trial court has discretion in
Perry County, Case No. 22-CA-00004 38
determining the amount of attorney fees, the court must base its decision on evidence
showing the reasonableness of the time spent on the matter and the hourly rate.”
Almasoodi v. J. Harris Constr., Inc., 5th Dist. Delaware No. 22 CAE 06 0053, 2023-Ohio-
895.
{¶108} Father cites our holding that, “where the amount of an attorney’s time and
work is evident to the trier of fact, an award of attorney fees, even in the absence of
specific evidence to support the amount, is not an abuse of discretion,” in support of his
argument. Hawk v. Hawk, 5th Dist. Tuscarawas No. 2002AP040024, 2002-Ohio-4384;
Bosch v. Bosch, 5th Dist. Fairfield No. 21 CA 3, 2021-Ohio-2649; Dotts v. Schaefer, 5th
Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-782. He contends that the amount
of his attorney’s time and work should have been evident to the trier of fact, and that the
trial court abused its discretion in not accepting Father’s affidavit. While this Court has
held that a court may rely upon its own knowledge in the determination of attorney fees,
we have not mandated that a trial court do so. It is within the trial court’s discretion. We
find the trial court did not abuse its discretion in this case when it determined it was more
appropriate to require more than its own knowledge to determine the reasonableness of
the attorney fees. The line of cases cited by Father do not mandate that a trial court utilize
its own knowledge and experience to determine the reasonableness of attorney fees.
Rather, they are cases in which we held it was not an abuse of the court’s discretion to
do so in those particular factual situations.
{¶109} As to Father’s argument about his own affidavit, Father asserts the line of
cases as cited above holds that a court must accept the testimony or affidavit of the client
as to the reasonableness of attorney fees. However, we have not issued such a bright-
Perry County, Case No. 22-CA-00004 39
line rule. Rather, we held that a trial court may, in its discretion, accept a client’s testimony
or affidavit concerning the reasonableness of the fees. We have not held that a trial court
is required to accept a client’s testimony or affidavit as to the reasonableness of the fees.
Ultimately, the trier of fact has (1) the discretion to award attorney fees or not award
attorney fees and (2) the discretion to decide on evidence showing the reasonableness
of the time spent on the matter and the hourly rate. A trial court may believe all, part, or
none of the testimony of any witness who appears before it. Rogers v. Hill, 124 Ohio
App.3d 468, 706 N.E.2d 438 (4th Dist. 1998).
{¶110} We find no abuse of the trial court’s determination that Father’s affidavit was
insufficient to demonstrate the reasonableness of the attorney fees in this case,
particularly where Mother was not given the opportunity to challenge the affidavit prior to
the magistrate issuing her decision and where Father averred that attorney fees of over
$7,500 was reasonable for two contempt motions.
{¶111} Finally, Father argues since he complied with the request of the magistrate
at the conclusion of trial, his assignment of error should be sustained. However, the
magistrate specifically requested that Father’s counsel submit a supporting affidavit. The
only affidavit filed was that of Father, not his counsel.
{¶112} In this assignment of error, Father also argues the trial court committed error
in denying attorney fees due to the language of R.C. 3109.051(K). Because Father has
also assigned this as a separate assignment of error, we review this argument in Father’s
Fourth Assignment of Error.
{¶113} Father’s third assignment of error is overruled.
Perry County, Case No. 22-CA-00004 40
IV.
{¶114} In Father’s fourth assignment of error, he contends the trial court abused its
discretion in denying him attorney fees for Mother’s contempt because R.C. 3109.051(K)
mandates an award of attorney fees.
{¶115} While we agree with Father that R.C. 3109.051(K) requires an award of
reasonable attorney fees due to the use of the word “shall,” we find there is no indication
the trial court utilized R.C. 3109.051(K) in its contempt determination. The trial court
found Mother in contempt for a violation of its previous order and for interfering with
counseling. In the motions Father filed for contempt with regard to these two issues, he
does not cite R.C. 3109.051(K). Additionally, R.C. 3109.051(K) specifically applies to
orders granting parenting time rights, i.e., parenting time or visitation, and Mother was not
found in contempt for issues regarding Father’s parenting time or visitation, as the child
was returned to Ohio by the time Father’s next visit was to occur. Finally, the only revised
code section cited by either the magistrate or trial court with regard to attorney fees is
R.C. 2705. “A trial court has authority both under R.C. 2705.02(A) and on the basis of its
inherent powers to punish the disobedience of its orders with contempt proceedings.”
Zakany v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984). In those situations, and
when a trial court awards attorney fees pursuant to R.C. 3105.73(B), the award of attorney
fees is in the trial court’s discretion.
{¶116} Accordingly, we find the trial court did not abuse its discretion in declining
to award fees pursuant to R.C. 3109.051(K) because that statute was not at issue in this
case. Father’s fourth assignment of error is overruled.
Perry County, Case No. 22-CA-00004 41
{¶117} Based on the foregoing, Mother’s assignments of error are overruled.
Father’s first, third, and fourth assignments of error are overruled. Father’s second and
fifth assignments of error are sustained in part.
{¶118} The April 8, 2022 judgment entry of the Perry County Court of Common
Pleas is affirmed in part and reversed and remanded in part to correct the three errors
contained in the child support worksheet as to Mother’s income, the overnights per year,
and Mother being given credit for an additional minor child.
By Gwin, P.J.,
Delaney, J., and
King, J., concur