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Ryan v. Ryan

December 4, 2008

MARJORIE RYAN, PLAINTIFF-APPELLEE,
v.
WILLIAM RYAN, JR., DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Belmont County, Ohio Domestic Relations Division Case No. 04DR212.

The opinion of the court was delivered by: Donofrio, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.

{¶1} Defendant-appellant, William Ryan, Jr., appeals from a Belmont County Common Pleas Court judgment overruling his motion to modify a parenting schedule and ordering him to pay court costs as a sanction for filing a retaliatory contempt motion.

{¶2} Appellant and plaintiff-appellee, Marjorie Ryan, were married on December 29, 1994, and one child, Brendan (d.o.b. 7/29/99), was born as issue of the marriage. The parties were divorced on March 22, 2005.

{¶3} Per the parties' divorce decree, they are to have shared parenting of their son. The shared parenting schedule, as set out in the divorce decree, provides appellant's parenting time as follows: alternating weekends from Friday at 3:00 p.m. until Sunday at 6:00 p.m. and every week from 6:00 p.m. on Monday until 6:00 p.m. on Wednesday.

{¶4} Appellant asserts in his brief, however, that the parties agreed to a change in his parenting time. Per the agreed change, on appellant's alternating weekends, appellant's parenting time begins on Friday as set out in the shared parenting plan and continues until Wednesday at 6:00 p.m. Therefore, Brendan remains with appellant for one extra overnight on alternating Sundays. Appellant states that the parties operated under this schedule from the time of the divorce in 2005, through 2006, and into 2007.

{¶5} On June 15, 2007, appellee filed a motion to hold appellant in contempt for his alleged failure to comply with the terms of the shared parenting plan regarding vacations. On August 3, appellant filed a motion to modify the parenting schedule to reflect the agreement that the parties had been operating under giving him an extra overnight with his son on alternating weekends. He also requested that the court find appellee in contempt for failing to make sure that Brendan attended his extracurricular activities as set out in the shared parenting plan and for failing to use Brendan's prescribed orthotics in his shoes.

{¶6} According to appellant, just prior to the magistrate's hearing, appellee notified him that she no longer agreed to his extra overnight and would, from this point on, strictly operate by the parenting time set out in the shared parenting plan.

{¶7} A magistrate held a hearing on the parties' motions. The magistrate found that neither party was in contempt of the court's previous orders. The magistrate also found that appellant filed the contempt motion against appellee in retaliation for appellee filing a contempt motion against appellant. The magistrate further found that appellant failed to prove that it was in Brendan's best interest for the court to modify the shared parenting schedule to give him an extra Sunday overnight on alternating weekends. Because the magistrate found that appellant's contempt motion had no merit and was purely retaliatory, he determined that appellant should be responsible for all court costs.

{¶8} Appellant subsequently filed objections to the magistrate's decision arguing that the magistrate had no factual support for several findings and that he did show the magistrate that it was in Brendan's best interest to modify the shared parenting plan. Appellant also took issue with the magistrate's determination that he should pay all of the court costs.

{¶9} The trial court overruled appellant's objections, adopted the magistrate's decision, and entered judgment accordingly.

{¶10} Appellant filed a timely notice of appeal on November 21, 2007.

{ΒΆ11} Appellee has failed to file a brief in this matter. Therefore, this court may accept appellant's statement of the facts and issues as correct and reverse the judgment if appellant's ...


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