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In re G.B.

Court of Appeals of Ohio, Second District, Montgomery

November 3, 2017


         Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. 2015-3161

          JAMES R. KIRKLAND, Atty. Reg. No. 0009731, Attorney for Appellant.

          ELLEN C. WEPRIN, Atty. Reg. No. 0042354, Attorney for Appellee.


          WELBAUM, J.

         {¶ 1} This case is before us on the appeal of Appellant, S.C., from a judgment overruling her motion for contempt against Appellee, G.B., Sr., ordering shared parenting, retaining G.B., Sr., as residential parent, and allowing S.C. parenting time in accordance with the court's standard order of parenting time.[1]

         {¶ 2} For the reasons discussed below, we conclude that the trial court did not abuse its discretion in overruling Mother's motion for contempt, or in ordering the parties to engage in shared parenting. In addition, the court did not abuse its discretion in retaining Father as the residential parent and ordering that Mother receive the standard order of parenting time rather than equal time. The evidence supported the court's decision, and the decision was based on sound reasoning. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 3} G.B., the minor child at issue in this appeal, was born in April 2008. On May 21, 2015, Mother filed a Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") petition with the Montgomery County Juvenile Court. According to certified documents attached to the petition, a judgment for custody and parenting time had been entered by the Oakland County, Michigan Circuit Court in January 2009. Subsequently, in June 2009, a consent judgment of support, custody, and parenting time provisions was filed. After that time, 167 pleadings and submissions were filed in the Michigan case.

         {¶ 4} In December 2012, Mother filed a motion to modify parenting time and G.B.'s primary residence. Father then filed a motion to modify physical custody and parenting time for G.B. Hearings were held on 10 days between February 21, 2013, and July 19, 2013, regarding these matters as well as issues pertaining to Mother's alleged contempt for violation of parenting time orders, and to attorney fees.

         {¶ 5} On December 12, 2013, the Oakland Circuit Court ordered that physical custody of G.B. would be placed with Father until G.B. reached 18 years of age.[2] Mother was given parenting time with G.B. on alternate weekends from 6:00 p.m. Friday to 6:00 p.m. on Sunday, and summer parenting time of three separate 14-day periods. The parties were also given alternating holidays. At the time, Mother was living in Michigan, and Father was living in Dayton, Ohio. As a result, Findlay, Ohio, was designated as the drop-off and pick-up location. The court further ordered Mother to pay $2, 000 to Father's counsel based on past violations of parenting time orders and violations that had been raised during the evidentiary hearings.

         {¶ 6} Findings and Recommendations of a referee were attached to the order. Concerning the parties' ability to give the child guidance and education, and to raise the child, Father was favored. In this regard, the referee stated that:

Reviewing the testimony in these hearings regarding the capacity of the parties to provide guidance, education and raising of this child, it is clear that defendant/father is favored. Plaintiff/mother's behavior with respect to her involvement in the child's life in Dayton[, ] the child's daycare facility, doctor's offices, pick-up and drop-off for parenting time, and plaintiff/mother's behavior during these hearings (threatening defense counsel, the family counselor at a Court hearing) all weigh heavily toward defendant/father being the more proper parent who can properly provide guidance, education, and proper raising of this child.

         December 12, 2013 Oakland Circuit Court Order Re: Custody and Parenting Time, Findings and Recommendations, pp. 1-2, attached to Plaintiffs UCCJEA and Verified Complaint and Petition to Register Foreign Orders and for Other Relief, Doc. #96.

         {¶ 7} As to a factor entitled "[t]he moral fitness of the parties involved, " the referee stated that:

As to this factor, defendant/father is favored. A review of the brief filed by defendant/father with respect to this factor is extremely instructive. Plaintiff/mother's scattered financial condition, her failure to disclose critical information in her bankruptcy pleadings, her failure to ever obey this Court's obligation to pay defendant/father's attorney, fees of $1, 000 which were earlier ordered, and most critically, her fabrications to the police that defendant/father committed an act of domestic violence against her all point in the direction of defendant/father being heavily favored on this factor.

Id. at p. 3.

         {¶ 8} Concerning the willingness of each parent to facilitate and encourage a close and continuing parent-relationship between the other parent and the child, the referee found as follows:

As to this factor, the parties are equal. As set forth extensively by defense counsel, plaintiff/mother has a long history of denying defendant/father his parenting time; numerous motions to show cause for violation of the parenting time have been filed by defendant/father with several findings that plaintiff/mother has been in violation of the Court's orders. In contrast, defendant/father has been too abrupt and closed off about his communication with plaintiff/mother. While some of defendant/father's reluctance to engage in phone conversation is understandable, given the prior history of allegations of domestic violence, a false allegation of child abuse perpetrated on the child by a neighbor of defendant/father's and other problems, it is clear that defendant father has to step up and be more engaged in communicating with plaintiff/mother.

Id. at pp. 3-4.

         {¶ 9} Concerning "any other factor, " the referee commented that:

As to this factor, defendant/father is favored. Plaintiff/mother has conducted herself poorly during the years when the parties have been attempting to work together and the child has had seven consecutive days in each parent's household. She is either late or does not appear for parenting time, pick-up and drop off, she has been rude, disruptive and hostile to Court staff, opposing counsel, childcare providers, the child's pediatrician, and virtually everyone on this case with whom she had a conflict.

         December 12, 2013 Oakland Circuit Court Order Re: Custody and Parenting Time, Findings and Recommendations, at p. 4.

         {¶ 10} In November 2014, Mother and her attorney appeared with the police at G.B.'s school in Dayton on a weekday in an attempt to obtain G.B. for the Thanksgiving holiday. This occurred on the day before the holiday, at which time Mother would not have been entitled to have the child under the December 12, 2013 court order. The police said they could not enforce the order, and the principal declined to let Mother take G.B. After being telephoned, Father refused to let Mother see G.B. Mother's attorney left after being at the school more than two hours.

         {¶ 11} In early March 2015, the Oakland Circuit Court filed an order requiring Mother to do three supervised visits, with a review from a parenting time supervisor, before her parenting time would be reinstated.[3] Mother was supposed to come back before the court in 45 days, after having completed the three supervised visits. The initial suggestion was that the parties use Erma's House, which was located in Dayton. However, that did not happen. There was a dispute as to the reason, with Mother contending that Father did not register with Erma's House in a timely fashion. On the other hand, Father stated that he had no choice in dates assigned for his intake interview with Erma's house, and took the appointment date that was given to him.

         {¶ 12} Due to a backlog at Erma's House, the parties had further negotiations about a potential visitation supervisor, but were unable to agree. On May 7, 2015, the Michigan court denied Mother's motion to reinstate parenting time and also denied her motion to remove the case to Ohio based on the claim that Michigan was an inconvenient forum. As was noted, Mother then filed her UCCJEA petition in the Montgomery County, Ohio, Juvenile Court on May 21, 2015. In the petition, Mother indicated that her current residence was located in Maryland; Father's address was listed as being in Dayton, Ohio.

         {¶ 13} On May 21, 2015, Mother also filed a motion for contempt and a request to modify the parties' shared parenting agreement. In the motion, Mother asked that she be designated the primary residential parent and legal custodian for G.B. At a hearing held on June 18, 2015, the parties agreed that Mother would have three hours of supervised parenting time beginning on June 20, 2015, and no time on June 27 and July 4, 2015, because the child would be on vacation with Father. After that point, the three-hour supervised parenting time would resume on July 11, 2015, and continue thereafter until further order.

         {¶ 14} On July 1, 2015, the trial court conducted an in-camera interview of G.B., and appointed a guardian ad litem ("GAL") for G.B. Subsequently, on July 9, 2015, Mother filed a motion to modify summer parenting time, and the parties then agreed that Mother would exercise unsupervised bi-weekly parenting time within the State of Ohio beginning Friday, August 14, 2015, and ending on a later permanent parenting schedule ordered by the court or agreed upon by the parties. The agreed parenting time was for Friday at 6:00 p.m. until Sunday at 6:00 p.m. on alternating weekends.

         {¶ 15} In September 2015, the GAL filed a report, recommending that custody remain with Father, and that an interim order of standard parenting time be issued with Mother, so long as she stayed in the Dayton area on days she exercised her parenting time. In addition, the GAL recommended an extended standard order of parenting time if Mother relocated to the Dayton area, to allow a more equal division of parenting time.

         {¶ 16} When Mother was interviewed by the GAL, she was staying in a hotel. Mother indicated that she was in the process of purchasing a home in Clayton, Ohio, and would be living there on a full-time basis within the next month. At the time of the custody hearings, however, Mother was living in an apartment in Fairborn, Ohio.

         {¶ 17} In November 2015, Mother filed a request for shared parenting and a shared parenting plan. She proposed that both parents would be residential parents and legal custodians, and that they would alternate having the child on a week-to-week basis. She also requested that her home be made G.B.'s address for school purposes.

         {¶ 18} A magistrate held hearings on December 17, 2015, March 8, 2016, and May 26, 2016. After hearing the evidence, the magistrate filed a decision on May 31, 2016, denying Mother's motion for contempt. The magistrate further held that the parties would have shared parenting, with Father being designated the residential parent for school purposes. Additionally, the magistrate held that Mother would have parenting time with G.B. pursuant to the court's standard order of parenting time, that the parents were to cooperate in enrolling G.B. in counseling, and that they would each follow the counselor's recommendations until further court order.

         {¶ 19} Mother asked for findings of fact and conclusions of law, and the magistrate filed findings of fact and conclusions of law on June 21, 2016. The magistrate again concluded that shared parenting and the court's standard order of parenting time for Mother were in G.B.'s best interest. Mother then objected to the magistrate's decision. On April 26, 2017, the trial court overruled Mother's objections to the magistrate's decision. This appeal followed.

         II. Alleged Error in Granting Mother Standard Parenting Time

         {¶ 20} Mother's First Assignment of Error states that:

The Judge and Magistrate Erred in Finding that Mother Shall Have Parenting Time in Accordance With the Standard Order of Parenting Time ...

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