APPEAL FROM COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION
Defendant-appellant, Cathy Doerman, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, settling custody and property issues in a divorce action.
¶2 Cathy Doerman and plaintiff-appellee, David Doerman, began dating in 1989 and were married in 1994. Mrs. Doerman had two children, Heather and Michael, from a previous marriage. At the time the parties began dating, the children were two and four years old, respectively. In August 1995, Mr. Doerman adopted both children. After experiencing difficulties in their marriage, the parties separated in February 1998. Attempts to obtain a dissolution failed. In November 1998, Mrs. Doerman moved from Butler County to Summit County, taking the children with her. Mr. Doerman filed for divorce on November 19, 1998. Pursuant to Local Rules, Mrs. Doerman was designated residential parent and legal custodian of the children during the pendency of the proceeding. Mr. Doerman was to have "Schedule B" visitation with the children.
¶3 The events that followed degenerated the situation into what quickly became a contentious custody proceeding. Mrs. Doerman and the children began seeing counselors to whom she made allegations that Mr. Doerman had abused the children. In late December 1998, she told Summit County Children's Services that Mr. Doerman was abusing the children. Mrs. Doerman obtained an ex parte civil protection order from the Summit County Domestic Relations Court on December 23, 1998. However, when a hearing was held on the civil protection order request, the court denied the petition and terminated the ex parte order. The Summit County court found that the request appeared to be precipitated by the divorce action filed by Mr. Doerman and that the request was "merely an attempt to thwart a visitation order issued by Butler County."
¶4 The trial court held a scheduling conference and hearing on a motion to restrict visitation filed by Mrs. Doerman. The parties reached an agreement that Mr. Doerman would have restricted visitation that would be reviewed in a month. On review, the court modified the visitation to unsupervised and set forth a specific visitation schedule. The parties reached an agreement on summer visitation on May 25, 1999 and an agreed entry was filed.
¶5 On June 21, 1999, Mr. Doerman filed a motion for contempt against Mrs. Doerman alleging that she failed to follow the visitation schedule. A hearing was held on the motion July 23, 1999. Mr. Doerman testified that he had not had visitation with Heather since before Memorial Day weekend. He stated that Mrs. Doerman would bring the children to the designated meeting place and Michael would get out of the car, but Heather would not. He also testified that he did not have all of the scheduled visitations with Michael. He stated that on these instances, he got messages from the children saying they didn't want to come, wanted to spend time with their mother, or that they didn't support "what was going on in the situation" and weren't going to come on visitation. Mr. Doerman also alleged that when he requested information about an All-Star soccer game his daughter was playing in, Mrs. Doerman refused to give him the information and responded that Heather would have to invite him. He stated that he received this type of response on multiple occasions and in multiple situations.
¶6 Mr. Doerman also asked the court for a specific counseling order so that he could continue counseling with his children. The children were attending counseling sessions with Dr. Janet Dix, a psychologist who deals primarily with children, adolescents and families. Mr. Doerman attended one session with the counselor and scheduled a series of sessions on Thursdays, during his visitation time, so that he and Heather could work together on their relationship. According to Mr. Doerman, Mrs. Doerman cancelled the sessions, telling him he was not the residential custodian and could not make appointments for the children.
¶7 Mrs. Doerman testified that she tried to talk the children into visiting their father, but that it was their choice and she would not force them to go. The court interviewed the children in camera. At the hearing, there was discussion regarding concern by the children because their father was "fighting for custody." Counsel for Mr. Doerman reiterated that she had repeatedly told opposing counsel and the guardian ad litem that Mr. Doerman was not asking for sole custody and was only asking for shared parenting.
¶8 On July 23, 1999, based on the evidence at the hearing, the trial court found Mrs. Doerman in contempt for violating the court's visitation order, but stayed a 30-day sentence. The trial court stated that the children did not have a choice, that they would go to visitation with their father and that Mrs. Doerman would order them to go in the same manner she would order them to go to school if they did not want to go. The trial court also ordered that counseling sessions were to be on Thursdays or Mondays when Mr. Doerman had visitation and was residing in Summit County. *fn1 The court also ordered that Mr. Doerman was to receive all information regarding the children's activities.
¶9 From August through October, Mr. Doerman and Heather met with Dr. Dix on a weekly to biweekly basis. According to Dr. Dix, during this time, visitation went smoothly. On October 24, 1999, an incident occurred which caused the parties to file opposing motions. Mr. Doerman was taking a friend of Heather's home and Heather wanted to stay with her friend. Her father denied the request because she had already spent the majority of the weekend with the friend. Heather began cursing at her father, using vulgarities such as "fuck you" and "you're an asshole." According to Heather, her father hit her on the knee after she swore at him. Mr. Doerman denied that he hit Heather. After returning to Mr. Doerman's, Heather went to another friend's house and refused to come back. The police were called and Heather was charged as an unruly child. After this incident, Heather refused to visit her father.
¶10 The court found insufficient evidence that Mrs. Doerman willfully refused to allow visitation and denied Mr. Doerman's motion for contempt. The court further found that the incident was the result of Heather throwing a temper tantrum and there was no credible evidence that Mr. Doerman would harm her. Thus, Mrs. Doerman's motion to terminate visitation was denied. The court again ordered Mrs. Doerman to force Heather to attend visitation and counseling with her father.
¶11 Thereafter, Mr. Doerman filed several motions for contempt alleging that Mrs. Doerman failed to provide visitation on various occasions. The motions in contempt were scheduled for a hearing on March 9, 2000, but the parties requested a continuance of the hearing in order to try to amicably resolve the issues. The court entered an order continuing the hearing and stating that the parties had agreed that Mr. Doerman's contact with Heather would be determined on the basis of psychologist, Dr. Roger Fisher's, recommendations. *fn2
¶12 In April 2000, Mr. Doerman filed further motions for contempt for failing to provide visitation and counseling with regard to Heather. On April 18, 2000, the court held a hearing on the previously filed contempt motions that the parties had attempted to settle. The court found Mrs. Doerman in contempt on three instances, but stayed each 30day jail sentence. The court ordered Mrs. Doerman to serve the previously imposed 30-day sentence for contempt, and ordered that Mr. Doerman be named the temporary residential parent of the children while Mrs. Doerman served the sentence for contempt. Discussions on the record indicate that Heather refused to go with her father, attacked him in the presence of law enforcement officials, and was arrested for domestic violence.
¶13 On April 24, 2000, the trial court granted Mrs. Doerman's motion for early release. On April 28, 2000, the trial court heard evidence on the issue of temporary custody pending the final hearing. The trial court took the matter under advisement, and issued a temporary order granting legal custody of Heather to Mr. Doerman and physical custody to Mrs. Doerman. Mr. Doerman retained temporary custody of Michael and Mrs. Doerman received "Schedule B" visitation. The parties were to continue counseling with Dr. Fisher.
¶14 On May 26, 2000, the trial court issued a decision on the issue of temporary allocation of parental rights and responsibilities pending the final hearing. After briefly reviewing the events occurring up until the hearing date, the trial court found that "Mrs. Doerman has thwarted, directly and indirectly, all attempts of the Court to ensure the parties' minor child, Heather, has significant and meaningful contact with Mr. Doerman." The court further found that "Ms. Doerman has also, from time to time, failed to provide Mr. Doerman with significant and meaningful contact with Michael." The court found that Mrs. Doerman had continually attempted to control visitation and that it was in the children's best interest to have significant and meaningful contact with Mr. Doerman. The court found that every time counseling with Heather was ordered by the court, Mrs. Doerman terminated counseling or cancelled sessions. The court found this continued pattern of sabotaging counseling disconcerting.
¶15 The court found that based on Mrs. Doerman's actions, it had two choices: to return the children to Mrs. Doerman and let the pattern of conduct continue, or to take another approach. The court determined that, if it were to adopt the first approach, it could not foresee any meaningful contact occurring between Heather and Mr. Doerman and, based on previous history, any meaningful progress would be soon destroyed.
¶16 The court found Mrs. Doerman's arguments regarding Mr. Doerman's ability to parent the children baseless. The court further found that, throughout the entire case, Mr. Doerman "has demonstrated a genuine concern and feelings for the children" and "has continually maintained and complied with the orders of the Court." The court reviewed the statutory factors and ordered that Mr. Doerman be named legal custodian of Heather with Mrs. Doerman retaining physical custody. Mr. Doerman was to have contact with Heather one hour per week for lunch or dinner. Mr. Doerman was named residential parent of Michael with Mrs. Doerman receiving visitation. The parties were ordered to continue counseling with Dr. Fisher, and Mrs. Doerman was ordered to facilitate counseling with Heather.
¶17 Final hearings occurred on several dates, including July 17, 18, 20, 24 and 25, 2000, September 7, 2000, and January 4, 2001. After the final hearings, but prior to any decision, Mrs. Doerman filed a motion for reallocation of temporary custody, and Mr. Doerman filed a motion in contempt. The motions were heard at an emergency hearing. Evidence presented at the hearing established that Mr. Doerman and Michael discussed the possibility of moving to Butler County and, in the process, looked at housing opportunities, reestablished contacts with Michael's friends, and contacted schools regarding academics and sports opportunities. In a counseling session, Dr. Fisher spoke with Michael about the move. Dr. Fisher testified that Michael was looking forward to the move. Although apprehensive about his mother's reaction, Michael believed Mrs. Doerman would be angry at first, but in the end would work it out.
¶18 Shortly before the move, Mr. Doerman took Michael for visitation with Mrs. Doerman. While with his mother, Michael called the guardian ad litem and told him he did not want to move to Butler County and wanted to live with his mother. The guardian stated that the call sounded like it was made on a car phone with Mrs. Doerman in the background. Based on his therapy with the family, Dr. Fisher testified that ...