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Fisher v. Fisher

Court of Appeals of Ohio, Seventh District, Harrison

June 22, 2018

JENNIFER D. FISHER, NKA BARDALL, Plaintiff, Appellee,
v.
DAVID C. FISHER, Defendant-Appellant.

          Civil Appeal from the Court of Domestic Relations of Harrison County, Ohio Case No. DRA-2011-0043.

          Atty. Michael Johnson, Johnson, Urban & Range Co., LPA, 117 South Broadway, New Philadelphia, Ohio 44663, for Plaintiff-Appellee.

          Atty. Joseph Kacyon and Atty. Rachel Smick, Hoover Kacyon, LLC, 527 Portage Trail, Cuyahoga Falls, Ohio 44221, for Defendant-Appellant.

          BEFORE Gene Donofrio, Carol Ann Robb, Kathleen Bartlett, Judges.

          OPINION AND JUDGMENT ENTRY

          Donofrio, J.

         {¶1} Defendant-appellant, David Fisher, appeals from a Harrison County Common Pleas Court judgment denying his motions to hold plaintiff-appellee, Jennifer Bardall, in contempt and denying his motion to reallocate parental rights and responsibilities.

         {¶2} The parties in this case were divorced on May 9, 2013. They share three children, G.F. (born in 2000), Z.F. (born in 2001), and H.F. (born in 2003). At the time of the divorce, the trial court designated appellee the residential parent. Appellant was to have supervised visitation with the goal of gradually moving to an unsupervised visitation schedule in conjunction with counseling and an increased relationship between appellant and the children. The children's guardian ad litem (GAL) agreed with this schedule.

         {¶3} Over the next few years, appellant's visits changed to unsupervised and the duration of the visits increased. On February 12, 2016, in addressing appellant's motion to modify his parenting time to the court's standard visitation schedule, the trial court set out a new visitation schedule for the parties as follows. In March 2016, appellant was to have visitation for five hours once per weekend. In April 2016, the weekly visits were to increase to seven hours duration. In May 2016, the visits were to increase to nine hours duration from 9:00 a.m. until 6:00 p.m. every Sunday. In June 2016, the visits were to increase to 9:00 a.m. until 6:00 p.m. every Saturday and every other Sunday. Beginning July 30, 2016, the visits were to be from 9:00 a.m. on Saturday until noon on Sunday every other weekend. In addition to this schedule, the court's order stated that the children were not to communicate with appellee during appellant's visits except in the case of personal danger or injury. It also stated that the children were not to use their cell phones to record their visits.

         {¶4} On May 27, 2016, appellee filed a multi-branch motion requesting, in part, a court order that appellant refrain from stalking her and the children.

         {¶5} On June 3, 2016, appellant filed a motion to have appellee held in contempt of the court's February 12, 2016 order. Appellant alleged that appellee violated the court's visitation order by denying him visitation the weekend of April 9-10, 2016, and denying him visitation on May 15, 22, and 29, 2016. Appellee responded by stating that while she encouraged the children to attend visits with appellant, the children were now teenagers and she could not physically force them to go.

         {¶6} The court re-appointed the children's GAL to investigate the matter.

         {¶7} On October 6, 2016, appellant filed another motion to have appellee held in contempt. In this motion appellant reiterated his previous allegations and further alleged that appellee denied him visitation time on June 4, 5, 18, and 19, 2016; July 2, 3, 23, and 24, 2016; August 13 and 27, 2016; and September 10 and 24, 2016. Appellee asserted again that she encouraged the children to visit with appellant but that appellant's conduct was causing the children to refuse to go.

         {¶8} Next, appellant filed a motion for the release of all GAL reports. Pursuant to court order, the GAL reports were kept confidential. Appellant stated in his motion that he had retained an expert witness to conduct a "forensic psychological evaluation" and the GAL reports would give the expert a better understanding of the underlying issues in this case. Both appellee and the GAL objected to the release of the GAL reports. The trial court denied this motion.

         {¶9} Appellant also served a subpoena on Caldwell Visitation Services (Caldwell), which is the agency that had monitored the supervised visits between appellant and the children years earlier, requesting all records from his visits with the children. When Caldwell did not comply with the subpoena, appellant filed a motion to compel Caldwell's compliance. The trial court denied this motion.

         {¶10} Appellee then filed a motion to limit visits between appellant and the children to two dinner dates per month until the children felt more comfortable with appellant, as recommended by the GAL.

         {¶11} Next, appellant filed a motion to reallocate parental rights and responsibilities to name both parties as the legal custodians and residential parents of the children.

         {¶12} The trial court held a hearing on June 26, 2017, to address all pending motions. The court heard testimony from both parties, the GAL, appellee's husband, and appellant's neighbor. The court also interviewed the children in chambers.

          {¶13} The trial court ultimately adopted appellee's proposed findings of fact and conclusions of law. The court then entered the following dispositions of the pending motions. First, the court found that "[b]oth parties, by their prior actions, have put the children in the middle." Therefore, it found there would be no finding of contempt and no finding of stalking. Next, the court found there was insufficient evidence for a modification of parental rights and responsibilities. Finally, the court stated that pursuant to the GAL's recommendation and its interviews with the children, it was modifying appellant's visitation to (1) a dinner date with the children every other Saturday and (2) one additional five-hour visit per month with each individual child.

         {¶14} Appellant filed a timely notice of appeal on September 8, 2017. He now raises five assignments of error.

         {¶15} Appellant addresses his first two assignments of error together. Appellant's first assignment of error states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT GRANTING DEFENDANT-APPELLANTS JUNE 3RD, 2016 CONTEMPT MOTION.

{¶16} Appellant's second assignment of error states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT GRANTING DEFENDANT-APPELLANT'S OCTOBER 6TH, ...

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