Court of Appeals of Ohio, Twelfth District, Clermont
FROM CLERMONT COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS
DIVISION Case No. 2010DRA00733
Stagnaro Hannigan Koop, Co., LPA, Michaela M. Stagnaro, for
Woliver, for appellant.
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
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
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
10} The second contempt motion was heard by the
court during an April 2018 hearing. Mother, Father, Bowman, and
the GAL testified. 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 ...