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In re G.J.A.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 19, 2018

IN RE: G.J.A. A Minor Child [Appeal by D.A., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 03105235

          ATTORNEY FOR APPELLANT Leslie A. Weiss Halberg & Associates Co., L.P.A.

          ATTORNEYS FOR APPELLEE Stephen E. S. Daray

          GUARDIAN AD LITEM Thomas Kozel

          BEFORE: Kilbane, J., E.A. Gallagher, A.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, JUDGE.

         {¶1} Defendant-appellant D.A. ("Mother"), appeals from the juvenile court's order adopting the magistrate's decision granting plaintiff-appellee P.B.'s ("Father") motion for a purge order related to Mother's nearly three-year-old contempt of the parties' shared parenting plan.[1] For the reasons set forth below, we affirm.

         {¶2} In December 2009, the juvenile court approved a shared parenting plan and designated both Mother and Father as residential parents of G.J.A., a minor. The juvenile court ordered Mother and Father to adhere to the parenting time schedule outlined in the parties' shared parenting plan.

         {¶3} In January 2014, the juvenile court issued an order finding Mother in contempt of court for violating the parties' shared parenting plan by "repeatedly and continuously withholding court ordered parenting time between Father and [G.J.A., ] without just cause, that resulted in [Father's] loss of approximately 69 days of parenting time." The juvenile court sentenced Mother to seven days in county jail and ordered her to pay a $500 fine. The court suspended this sentence, and further ordered Mother to purge her contempt. Specifically, the court ordered that

Mother * * * shall follow the court's orders regarding the shared parenting plan[, ] shall follow the orders made in this decision which specify a transition schedule for parenting time between [Father and G.J.A., and] shall follow the schedule for making up missed visitation * * * [of] 69 days.

         {¶4} The contempt order further explained "[i]f, at the six month review, [Mother] has purged her contempt[, ] the sentence will be dismissed. If, at the sixth month review [Mother] has not purged her contempt[, ] the sentence, both the jail time and fine, will be executed into effect." The juvenile court ordered the parties to each file a proposed makeup schedule before the next attorney conference scheduled at the end of January 2014.

         {¶5} The record demonstrates that the January 2014 attorney conference was not held. The record reflects that, at that time, the juvenile court had not yet ruled upon Mother's objections to the magistrate's December 2013 decision underlying the January 2014 contempt order.

         {¶6} In September 2014, Father moved to dismiss Mother's objections to the December 2013 magistrate's decision for want of prosecution. Father argued that Mother had failed to order a transcript of the proceedings underlying the magistrate's decision and file supplemental objections, despite her requests for additional time to do so.

         {¶7} The juvenile court granted Father's motion, finding that "[Mother] has failed to timely file the required transcript or support her objections with factual findings by referencing the transcript." The juvenile court further ordered that "the [January 2014] order that approved and confirmed the [December 2013 magistrate's decision] remains in full force and effect."

         {¶8} In October 2014, the parties both filed proposed purge orders and submitted proposed schedules for makeup visitation. In March 2015, Father filed his second proposed purge order, arguing he had only received 18 days of makeup time, and that he and Mother disputed the scheduling of 13 days of proposed time.[2]

         {¶9} In May 2015, the magistrate issued an order explaining that

[t]he initial purge order required compliance with the Court order that 69 days missed visitation be made up.
The Court finds that there was no deadline for completing the 69 days as the completion of the missed time would take more than the six months of a purge order. Furthermore, although there was no definition of a missed day, for instance a missed mid-week visit would certainly not be construed as a make up visit of 24 hours, the parties are expected to be reasonable[, ] which includes reciprocal compromise and flexibility in negotiation of what a day is and the specific days.

         {¶10} The magistrate's order further explained that the court declines to "pick a [proposed] schedule or interpret how many days have been made up to date" as requested by the parties because "[t]he topic is the subject of the future purge review hearing and the Court is reluctant to prematurely involve and entangle itself in a manner that is better suited for resolution by a parenting coordinator"

         {¶11} The magistrate stated:

If the parties cannot agree on the thirteen disputed dates or how to schedule future dates then they shall hire a parenting coordinator.
It is therefore ordered that the previous [January 2014] purge order remains in full force and effect. The purge review hearing will be scheduled where it will be Mother's burden to prove compliance with the purge order. If she fails to meet her burden of proof the jail sentence and fine will be executed into effect. If she meets her burden of proof the sentence is dismissed.

         {¶12} The magistrate ordered the parties to communicate through "our Family Wizard," or another similar service, starting within 30 days.

         {¶13} In November 2016, Father filed a third motion requesting a purge order, arguing he had not "received any [additional] makeup days" since May 2015. He noted that the magistrate's May 2015 order did not detail who would pay for the parenting coordinator or "our Family Wizard." Father argued he should not have to incur a financial obligation to get the court-ordered makeup visitation. He explained that he "'[took] exception' to the fact that the juvenile court had not issued a purge order in the almost two years since the contempt finding."[3]

         {¶14} On December 12, 2016, the magistrate issued a decision granting Father's motion, finding it "well taken and without opposition." The magistrate ordered:

1. As agreed or if no agreement then Father shall have at minimum an additional 69 days more than the current order for the remaining three years of the child's majority.
2. Per month visitation guidelines: As agreed or if no agreement then Father shall have no less than two additional days per month.
3. Per year visitation guidelines: As agreed or if no agreement then Father shall have no less than 23 ...

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