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In re A.S.

Court of Appeals of Ohio, Ninth District

September 25, 2013

IN RE: A.S., JR.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 09-10-0823

DEREK CEK, Attorney at Law, for Appellant.

LINDA SELL, Attorney at Law, for Appellee.

PHILLIP HERBAUGH, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

CARLA MOORE, Judge.

(¶1} Petitioner-Appellant, Arvis S., Sr. ("Father"), appeals from the November 21, 2012 judgment entry of the Summit County Court of Common Pleas, Juvenile Division. We affirm.

I.

(¶2} A.S., Jr., was born to Stephanie W. ("Mother") and Father on September 4, 2008. In 2009, A.S., Jr. was adjudicated dependent, and the juvenile court granted temporary custody to Summit County Children Services Board. After a brief time in foster care, A.S., Jr. was placed with Mother's aunt and uncle, Mary and Carl P. ("Relatives"). The juvenile court later granted Relatives legal custody, Father appealed, and this Court reversed and remanded to the court for further proceedings. See In re A.S., 9th Dist. Summit No. 26462, 2013-Ohio-1975.

(¶3} Father also filed a motion for contempt against Relatives alleging that he was being denied visitation with A.S., Jr.

(¶4} A magistrate of the trial court denied Father's motion, Father objected, and the trial court adopted the magistrate's decision. In adopting the magistrate's decision, the trial court held that Father failed to present sufficient evidence that Relatives refused him visitation with A.S., Jr. Rather, the trial court found that the evidence established that Father failed to exercise his visitation with A.S., Jr., during the specified time period.

(¶5} Father appealed, raising one assignment of error for our consideration.

II.

ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATE'S DECISION DENYING FATHER'S MOTION FOR CONTEMPT.

(¶6} In his sole assignment of error, Father argues that the trial court erred in adopting the magistrate's decision that denied his motion for contempt. Specifically, Father argues that the trial court demonstrated an arbitrary and unreasonable attitude in ignoring his undisputed testimony that Relatives rebuffed his efforts to visit A.S., Jr.

(¶7} "This Court generally reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion." Melick v. Melick , 9th Dist. Summit No. 26488, 2013-Ohio-1418, 5, quoting Young v. Young, 9th Dist. Summit No. 25640, 2011-Ohio-4489, ¶ 5. An abuse of discretion "implies that the [trial] court's attitude [was] unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "Although the trial court has discretion when finding facts and applying those facts to the law, the trial court commits an error of law if it does not follow the law." Foster v. Foster, 9th Dist. Wayne No. 09CA0058, 2010-Ohio-4655, ¶ 6. "Issues of law are reviewed de novo." Melick at ¶ 5, citing Butler v. Butler, 9th Dist. Summit No. 22087, 2004-Ohio-7164, ¶ 11.

(¶8} "Contempt of court may be defined as disobedience of a court order or conduct that brings the administration of justice into disrespect or impedes a court's ability to perform its functions." Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036, 2007-Ohio-6400, ¶ 45, quoting Willis & Linnen Co., L.P.A. v. Linnen, 9th Dist. Summit No. 22452, 2005-Ohio-4934, ¶ 17. "Civil contempt is designed to benefit the complainant and is remedial in nature * * * [through the use of] fines or prison sentences which are conditioned upon performing some act." (Internal citations omitted.) Schaffter v. Rush, 9th Dist. Medina No. 04CA0028-M, 2004-Ohio-6542, ¶ 22. "This [C]ourt will not overturn a lower court's determination in a contempt proceeding absent an abuse of discretion." Malson v. Berger, 9th Dist. Summit No. 22800, 2005-Ohio-6987, at ¶ 6.

(¶9} Here, Father testified that he was to have visitation with A.S., Jr. every other weekend and on Wednesdays. However, in September of 2011, Father and Mary P. had a verbal altercation about Father allegedly keeping A.S., Jr. longer than his court ordered time. After the altercation, Father claimed that Relatives denied him visitation with A.S., Jr. until January of 2012.

(¶10} Father testified on direct examination as follows:

Q. Okay. Was - when you say an altercation, what are we talking about, a verbal argument?
A. A verbal argument, right.
Q. Okay. Who was present when this altercation took place?
A. [Mary P.] was present. Me and her had the conversation. Stephanie ...

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