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Wiest v. Carmosino

Court of Appeals of Ohio, Twelfth District, Clermont

September 3, 2019

DEBRA WIEST, Appellee,
v.
RICHARD CARMOSINO, Appellant.

          APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 2010DRA00733

          Stagnaro Hannigan Koop, Co., LPA, Michaela M. Stagnaro, for appellee.

          John Woliver, for appellant.

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Richard Carmosino appeals from the decision of the Clermont County Court of Common Pleas, Domestic Relations Division, which denied his motion for contempt against his former spouse, Debra Wiest. For the reasons discussed below, this court affirms the domestic relations court's decision.

         {¶ 2} Carmosino ("Father") and Wiest ("Mother") married in 1991. Their first child, born in 1995, is now an adult, and their second child, C.C., was born in 2006. Father and Mother divorced in 2011.

         {¶ 3} The divorce was highly contentious. Ultimately, the court named Mother residential parent and legal custodian of C.C. and awarded Father parenting time on one weekday overnight and on alternating weekends.

         {¶ 4} Much of the acrimony between the parties can be traced to Father's romantic relationship with Brittnye Bowman, a relationship which began prior to the divorce. Mother and the children apparently blamed Bowman for the divorce. By the time of the events of this case, Father and Bowman had been in a relationship for approximately eight years and were living together.

         {¶ 5} In early 2017, C.C., then 10 years old, began refusing to go visit Father during Father's parenting time. C.C. wished to visit with his Father but did not want to interact with Bowman because her behavior was causing him anxiety. Mother did not force C.C. to visit with Father, allegedly on the advice of C.C.'s counselor.

         {¶ 6} In June 2017, Father moved for a contempt order against Mother for failing to honor his parenting time from March 2017 to June 2017. A magistrate held a hearing on that motion in August 2017, at which Father, Mother, and the counselor testified. Later, the magistrate issued a decision recommending the domestic relations court find Mother in contempt for failing to honor Father's parenting time.

         {¶ 7} Mother objected to the magistrate's decision, and the objections were overruled by the domestic relations court. The court concluded that Mother had failed to prove she was justified in her decision not to force C.C. to visit with Father during his parenting time. Specifically, the court found that the counselor's testimony - indicating he recommended Mother not to force C.C. to visit - carried little weight, given that the counselor also testified that he would never advise a parent to force a child to spend time with the other parent due to potential malpractice concerns. Additionally, the court found that the evidence did not support a finding that C.C.'s anxiety rose to the level that parenting time with Father would cause C.C. physical or mental harm.

         {¶ 8} Mother appealed. Carmosino v. Carmosino, 12th Dist. Clermont No. CA2018-01-002, 2018-Ohio-3010. Mother argued that she was justified in not forcing C.C. to visit Father because of evidence in the record that C.C. would suffer physical or mental harm. This court rejected that argument and affirmed the domestic relation court's decision, concluding that, while the record contained some evidence that C.C. could suffer harm (mostly through Mother's own testimony), the domestic relations court had given this evidence little weight and this court would not reverse a contempt action on the basis of a difference of opinion on questions of credibility or the weight of the evidence. Id. at ¶ 17.

         {¶ 9} In September 2017, the court appointed a guardian ad litem ("GAL") for C.C. and ordered the GAL to investigate and make a written custody recommendation. In November 2017, Father filed a second contempt motion which alleged that Mother had denied Father parenting time with C.C. between June and November 2017. In December 2017, the GAL submitted a written custody recommendation ("GAL report"), which recommended that Father have parenting time with C.C. but exercise the parenting time without Bowman present.

         {¶ 10} The second contempt motion was heard by the court during an April 2018 hearing.[1] Mother, Father, Bowman, and the GAL testified.[2] Following the hearing, the magistrate interviewed C.C. in camera.

         {¶ 11} The magistrate issued a decision recommending that the domestic relations court find that Mother violated a court order by not facilitating Father's parenting time, but that she should not be held in contempt. The decision explained that Father failed to "create an environment where [C.C.] would feel comfortable spending time with his father. This is an important distinction between the evidence presented at the hearing on April 17, 2018, and the evidence presented at the hearing on August 25, 2017."

         {¶ 12} Father objected, arguing that the magistrate had created an "unworkable" and "unlawful" standard for excusing a violation of a court order. Father argued that a finding that he created a situation that was "uncomfortable" for C.C. was not sufficient justification for Mother's failure to honor his parenting time by forcing C.C. to visit. Father argued that there must be evidence of a threat of or actual physical ...


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