Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations Division, Case No. 2008 DR 390.
Deborah L Smith, Smith Law Firm, and Anthony G. Rossi, III, Guarnieri & Secrest, P.L.L., Warren, OH 44482 (For Plaintiff-Appellee).
John H. Chaney, III, Daniel Daniluk, L.L.C., (For Defendant-Appellant).
DIANE V. GRENDELL, J.
(¶1} Defendant-appellant, Jack Anthony Ferreri, Jr., appeals the decision of the Trumbull County Court of Common Pleas, Domestic Relations Division, overruling his Motion for Contempt Order, based on plaintiff-appellee, Christina Ferreri's, interference with his visitation rights. The issues before this court are whether a trial court errs by failing to consider a transcript of proceedings before a magistrate where the parties have stipulated to the factual record, and whether a trial court errs by refusing to hold a party in contempt, where the party refused to allow visitation with a child's grandparents in lieu of scheduled visitation with the child's father. For the following reasons, we affirm the decision of the court below as modified.
(¶2} On October 21, 2010, the Trumbull County Court of Common Pleas, Domestic Relations Division, issued a Decree of Divorce, terminating the marriage between Christina and Jack Ferreri. One child was born as issue of the marriage. With respect to the care and custody of the child, the parties stipulated to a Shared Parenting Plan, which provides in relevant part:
(¶3} Both Mother and Father shall be designed the Residential Parents of the minor child * * * under the Shared Parenting Plan, and each shall be designated the Residential Parent when the child is in the physical possession of the respective parent. The Mother shall be designated Residential Parent for school and medical purposes. The Mother and Father agree that the Mother shall be Residential Parent while she is in the possession of the minor child, and excepting the [specified] times when the Father will be in possession of the minor child. * * * In the event a parent is not available for the pick-up/drop-off to exchange the child for parenting time, a relative known to both parties shall provide transportation.
(¶4} On April 20, 2012, Jack filed a Motion to Show Cause and for Contempt Order. Jack claimed that Christina had denied him parenting time under the Shared Parenting Plan, which provided that he "shall enjoy parenting time with the child each Tuesday at 5:00 p.m. through the following Wednesday, at which time the Father shall return the child to the Mother at 8:15 p.m." According to the Motion to Show Cause, Christina denied Jack parenting time commencing on the following Tuesdays: January 31, 2012; February 28, 2012; March 6, 2012; and March 27, 2012.
(¶5} On October 30, 2012, an evidentiary hearing was held before a magistrate of the domestic relations court.
(¶6} On December 5, 2012, the following Magistrate's Decision was issued:
(¶7} The parties agree & stipulate that Defendant did not receive parenting time on the 4 occasions which he alleged in his Contempt Motion. They further agree & stipulate that Defendant was out of the State on each of the said 4 occasions and that he was unable to exercise his parenting time.
(¶8} Deft argues that since the [Shared Parenting] Plan provides that a 3rd party may pick-up and drop off the child for companionship purposes, that party (paternal grandparents) has the right to companionship with the child even when the Deft is not available.
(¶9} Plt argues that the shared parenting plan does not provide for 3rd party companionship to be exercised when the Deft-father is out of state & unavailable to exercise companionship. Therefore, [the plaintiff] cannot be found in contempt for allegedly violating the Shared Parenting Plan.
(¶10} On the same date, the domestic relations court approved the Magistrate's Decision and denied Jack's Motion for Contempt: "The parties['] shared parenting plan specifically provides Defendant/Father with liberal times when he can visit his child. Those times cannot be transferred to a third (3rd) party when Defendant is ...