[Cite as Campbell v. Campbell, 2023-Ohio-3896.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
MOLLIE CAMPBELL, :
Plaintiff-Appellant, : CASE NO. 22CA3992
v. :
JOSHUA CAMPBELL, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
________________________________________________________________ APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for Appellant.
Joshua Campbell, pro se1. ________________________________________________________________ CIVIL CASE FROM COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION DATE JOURNALIZED:10-19-23 ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court, Domestic Relations Division, judgment that found Mollie
Campbell, plaintiff below and appellant herein, in contempt.
Appellant assigns three errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT FOUND MOTHER IN CONTEMPT.”
SECOND ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT MODIFIED THE
1 Appellee did not file a brief and did not participate in this appeal. 2 SCIOTO, 22CA3992
PARTIES’ PARENTING TIME SCHEDULE.”
THIRD ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT ESTABLISHED CHILD SUPPORT AND FAILED TO FIND FATHER IN CONTEMPT FOR NON-PAYMENT OF SUPPORT.”
{¶2} This appeal arises from a contentious divorce
proceeding that the parties have litigated for over seven years.
The parties married in 2011 and are the parents of two children,
M.C. (DOB March 1, 2012) and K.C. (DOB September 21, 2013). On
April 29, 2016, appellant filed a complaint for divorce against
appellee, Joshua Campbell.
{¶3} On May 11, 2016, pursuant to the parties’ agreement,
the trial court: (1) designated appellant the residential parent
for the minor children, (2) granted appellee parenting time on
alternating weekends and every Wednesday, (3) granted equal time
for holidays and two weeks for summer vacations, (4) designated
one child to each party as a dependent for tax purposes, (5)
ordered appellee to maintain medical insurance, and (6) ordered
appellee to pay appellant “pursuant to the agreement of the
parties and downward deviation in the amount of $800.00/month
plus 2% processing charges to the Scioto County Child Support
Enforcement Agency (CSEA) by wage withholding order effective
April 29, 2016.” The trial court’s final decree incorporated, 3 SCIOTO, 22CA3992
approved, and adopted the parties’ agreement.
{¶4} On February 10, 2017, appellee, through counsel, filed
a motion to modify the residential parent designation and a
motion for money judgment. On April 19, 2017, appellee filed a
contempt motion for denial of visitation and another motion to
modify the residential parent designation.
{¶5} On June 27, 2017, the parties entered into a
Memorandum of Agreement that designated appellant the custodial
parent and established parenting time. In addition, the
parties, inter alia, agreed to: (1) terminate child support on
September 1, 2017, (2) have appellee open a college savings
account and contribute $200 per month per child, and (3) have
appellee deposit $200 per month per child into a checking
account for the children’s benefit. The trial court’s July 13,
2017 judgment recognized that the parties agreed to resolve all
matters and adopted the June 27, 2017 agreement.
{¶6} On March 26, 2020, appellant filed: (1) a motion to
modify the prior court order and alleged that appellee relocated
to Florida, failed to provide notice to her or to the court, and
visited the children sporadically, (2) a motion for contempt of
court and alleged that appellee failed to pay into the college
savings account and the checking account in violation of the 4 SCIOTO, 22CA3992
July 13, 2017 order, and (3) a motion to modify child support.
{¶7} On May 1, 2020, appellee filed: (1) a pro se motion to
modify parental rights and responsibilities, (2) a proposed
shared parenting plan, (3) a motion for contempt for
interference with parenting time, (4) a motion to modify
parenting time, and (5) a motion to modify child support,
medical support, tax exemption and other child-related expenses.
On May 6, 2020, appellee filed another pro se motion for
contempt and alleged interference with parenting time. On May
26, 2020, appellee filed another contempt motion and alleged
interference with parenting time.
{¶8} At the June 11, 2020 hearing, appellee appeared pro
se. Because appellee failed to provide his witness list and
exhibits in a timely manner pursuant to both the Civil Rules and
Local Rules of Procedure, the court offered to either continue
the hearing to provide appellant and her counsel the opportunity
to review the exhibits, or to allow appellee to proceed without
referencing the exhibits. Appellee chose to proceed.
{¶9} The trial court indicated that, because appellant’s
contempt motion jeopardized appellee’s liberty, appellee is
entitled to appointed counsel. Consequently, the court
bifurcated the proceedings and only addressed appellant’s other 5 SCIOTO, 22CA3992
March 26, 2020 motions to modify a prior court order, child
support, and appellee’s contempt motions.
{¶10} Appellant testified that the July 13, 2017 order
established, inter alia, parenting time, and explained that in
the summers of 2017-2019 appellee exercised the week-on-week-off
summer schedule as per the agreement. However, in January 2020
appellee relocated to Florida without notice. Appellant argued
that the move necessitated a change in the parenting schedule
because appellee’s parenting time had been sporadic after his
relocation. Appellant requested that appellee have the children
three non-consecutive weeks in the summer, follow local rules
for major holidays (but with 14-day notice appellee could visit
the children in Ohio), and appellee be responsible for travel
expenses. Appellant further testified that appellee owes
$13,200 in the agreed payments and requested a conventional CSEA
child support order.
{¶11} The trial court noted that none of appellee’s three
contempt motions (May 1, May 6, or May 26) listed specific
incidents or time frames. Appellee attempted to cross-examine
appellant about the contempt motions, but did not reference the
specific motion or the specific dates that, he alleged,
appellant interfered with his visitation. The court then issued 6 SCIOTO, 22CA3992
a summer visitation schedule and continued other issues until
appellee retained counsel.
{¶12} On July 9, 2020, the trial court entered an interim
order that states that at the June 11, 2020 hearing, appellant
presented her case-in-chief and rested. When appellee requested
a continuance to seek counsel, the court granted the motion and
stated that the matter would begin at the point where the June
11, 2020 hearing ended.
{¶13} At the September 3, 2020 hearing, the trial court
indicated that “when we adjourned the last time we were here
which was on the 6th of June of this year, Mollie Campbell had
just finished her case-in-chief * * * [and] we are at the point
for Mr. Campbell’s case to be presented.” Appellee, now
represented, testified that he lived in Ohio at the time of the
divorce, but moved to Florida after a work-related injury and
because his new father-in-law offered appellee’s wife employment
in Florida. Appellee earned $65,000 when he last worked in
2018, but had no income since then. Because of his lack of
income, appellee explained he is in arrears in his payments.
However, appellee still provided insurance for the children
because his former employer granted a two-year grace period, to 7 SCIOTO, 22CA3992
expire on January 1, 2021. Appellee requested appellant insure
the children after January 1, 2021, and, if not possible, the
parties equally divide health coverage costs. Appellee
requested the court terminate the college account and the
checking account payments as requested in the previous order and
instead calculate traditional child support. In addition,
appellee requested shared parenting. Appellee also sought
additional time in the summer with the children and offered to
pay transportation costs. Appellee testified that appellant
does not provide advance notice regarding medical situations and
does not permit him to exercise parenting time, when appellant
refuses to comply with the parenting time allocation, appellee
stated he filed contempt motions because he does not have shared
parenting. In addition, appellee (1) explained he and his wife
plan to return to Ohio when he obtains “medical clearance,” and
(2) requested the court order the parties to communicate via the
Family Wizard app and offered to pay the fee. On cross-
examination, appellee conceded he owed $4,600 as of June, and no
accounting of the college savings accounts had occurred.
{¶14} On October 27, 2020, the trial court denied appellee’s
motion for shared parenting. The court determined that none of
the best interest factors applied, or were properly before the 8 SCIOTO, 22CA3992
court, because of “no change in circumstances of the residential
parent or the children, and this was not a shared parenting
case.” The court retained appellant as the residential parent
and indicated that appellee could have parenting time one week
during the school year, as well as half of the Thanksgiving and
Christmas breaks from school and the entire spring break.
Further, the court ordered parenting time on Father’s Day, two
weeks in June, two weeks in July, one week in August, and
ordered that appellee could have weekend time in Ohio when he is
in Ohio “provided he has a safe place for them to visit, with 14
days advance notice.” The court also ordered the parties to use
Family Wizard to communicate. Because appellee is unemployed
due to an injury, the court terminated the previous support
order, did not find appellee in contempt for nonpayment due to
his inability to work, but did, however, find appellant in
contempt for her “willful and repeated denial of [appellee’s]
parenting time.”
{¶15} November 6, 2020, appellee filed a motion for contempt
and alleged that appellant failed to share equally in the fees
for the Family Wizard program and failed to use the program for
communications as ordered. Appellant filed a motion for
findings of fact and conclusions of law and a motion for stay of 9 SCIOTO, 22CA3992
final judgment. The trial court granted the stay, ordered both
parties to submit proposed findings of fact and conclusions of
law, and stated that the court would hear the contempt motion at
a later date.
{¶16} On April 14, 2021, appellee filed a pro se motion for
contempt and alleged that appellant denied visitation and
violated the trial court’s June 27, 2017 final divorce decree.
On April 20, 2021, appellee filed a pro se motion to show cause
why appellant should not be held in contempt for a violation of
the court’s June 27, 2017 final divorce decree.
{¶17} On May 28, 2021, appellee, represented by counsel,
filed a motion for contempt and alleged that appellant willfully
denied parenting time from May 30, 2021 through June 6, 2021 in
violation of the court’s July 13, 2017 order. On June 1, 2021,
appellee, represented by counsel, filed another motion for
contempt and alleged that appellant willfully denied parenting
time from May 30, 2021 through June 6, 2021, in violation of the
court’s July 13, 2017 order.
{¶18} At the June 3, 2021 hearing, appellee testified that
since 2018, appellant denied him 61 days of parenting time.
Appellee explained that he paid for tickets to return to Florida
with both children after the hearing and requested $750 in 10 SCIOTO, 22CA3992
attorney fees, $50 in fuel, and $547.17 in airline tickets.
Appellee further testified that the parties did not divide all
holidays, appellee did not receive the children from 8:00 p.m.
Christmas Eve to 11:00 a.m. Christmas morning in odd-numbered
years, and appellee did not receive parenting time for
vacations, even though he provided appellant 30 days notice.
Appellee also requested the court lift the stay on the court’s
previous order for two weeks in June, two weeks in July, and one
week in August.
{¶19} Appellant testified that she has been more than
accommodating and tried to minimize school absences. Appellant
also acknowledged she failed to obtain passports for the
children as per the order four years prior. The trial court’s
June 16, 2021 entry states that after the hearing, the parties
agreed to parenting time for June, July, and August 2021.
{¶20} On June 30, 2021, the trial court (1) denied
appellant’s motion for contempt, and (2) found appellant in
contempt for her “blatant interference with [appellee’s]
parenting time but agrees with [appellant] that the court’s
order of 2017 must be modified.” The court thus adopted
appellee’s conclusions of law, ordered appellant to continue as
the residential parent and set forth a parenting schedule. The 11 SCIOTO, 22CA3992
court terminated the child support order and stated it is
“particularly concerned about the poor communication between the
parties and considers the behavior between them not only
contemptuous but simply childish.”
{¶21} On October 13, 2021, the trial court journalized a
memorandum of agreement. On October 25, 2021, the court entered
an agreed judgment that: (1) appellee shall withdraw all pending
motions without prejudice, (2) the attached findings of fact and
conclusions of law shall be incorporated in the judgment entry
that adopts this memorandum of agreement, (3) scheduled
appellant’s sentencing for contempt on December 9, 2021, and (4)
equally divided court costs.
{¶22} On April 7, 2022, appellee, through counsel, filed a
motion in limine and a motion to impose penalties. At the April
8, 2022 hearing on the motion in limine and motion to impose
penalties, the parties discussed that appellant had been found
in contempt on October 27, 2020. Appellee’s counsel, in fact,
argued that the court had found appellant in contempt three
times, but did not issue a sanction. To purge the contempt,
appellee requested 33 days of parenting time (proposed in
December 2021), travel expenses of $99.47, and attorney fees.
Appellant argued, however, that the April 14, 2021 hearing did 12 SCIOTO, 22CA3992
not conclude and appellant had no opportunity to submit
testimony and evidence.
{¶23} On April 18, 2022, the trial court sentenced appellant
to serve ten days in jail and pay a $250 fine. Appellant could,
however, purge the contempt if she: (1) provides 33 days of
make-up parenting time to be exercised prior to September 1,
2022, (2) complies with the current parenting time schedule as
set forth in the October 25, 2021 entry, and (3) pays $1,034.47
for appellee’s transportation and transcript costs. On May 5,
2022, appellant requested a stay of the July 6, 2021, October
25, 2021, and April 8, 2022 judgments pending appeal. On May 9,
2022, appellee filed a motion contra and a request to schedule
dates of parenting time.
{¶24} At this juncture, appellee’s counsel withdrew. On
June 24, 2022, appellee filed a pro se motion for emergency ex
parte order for post-judgment temporary custody and parenting
time under R.C. 3127.18. Appellee’s motion claimed that he and
the children “are in immediate danger. I have received death
threats and I have been repeatedly stalked by Mollie Williams *
* * Mollie’s domestic violence towards me keeps progressing and
is not only dangerous to the children physically, but mentally
and emotionally as well.” Appellee attached text messages to 13 SCIOTO, 22CA3992
his motion.
{¶25} On June 10, 2022, appellee filed for an injunction for
protection against cyber stalking/violence against appellant in
the Circuit Court of the Fifteenth Judicial Circuit in Florida.
The Florida court, however, denied the petition in view of
Ohio’s original jurisdiction. In addition, on June 24, 2022
appellant filed an ex parte motion to modify parenting time. On
June 29, 2022, appellee filed a motion for an emergency ex parte
order for summer parenting time.
{¶26} On May 5, 2022, appellant filed a notice of appeal of
the judgments entered on April 18, 2022 (sentenced appellant on
contempt from October 27, 2020, June 30, 2021, and October 25,
2021), on October 25, 2021 (agreed entry indicated appellee to
withdraw all pending motions without prejudice, attached
Findings of Fact and Conclusions of Law to be incorporated into
the judgment, costs divided equally, and setting sentencing for
contempt), and on July 6, 2021 (found appellant in contempt “for
her blatant interference with [appellee’s] parenting time”).
I.
{¶27} In her first assignment of error, appellant asserts 14 SCIOTO, 22CA3992
the trial court erred when it found her in contempt2. In
particular, appellant contends that the court denied her due
process when it found her in contempt related to three pro se
motions that failed to state with particularity the grounds for
the motions. See Civ.R. 7(B)(1).
{¶28} “Contempt of court” is defined as the disobedience or
disregard of a court order or a command of judicial authority.
Montgomery v. Montgomery, 4th Dist. Scioto No. 03CA2923,
03CA2925, 2004-Ohio-6926, ¶ 11; R.C. 2705.02(A). It involves
conduct that engenders disrespect for the administration of
justice or which tends to embarrass, impede or disturb a court
in the performance of its function. Denovchek v. Trumbull Cty.
Bd. of Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988).
Civil contempt exists when a party fails to do something ordered
by the court to benefit an opposing party. Montgomery, supra.
Usually, contempt proceedings in domestic relations cases are
indirect and civil in nature because they aim to coerce or
encourage future compliance with the court’s orders and their
2 In the case at bar, appellee did not file a brief. Under such circumstances, this Court may choose to accept appellant's statement of facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. App.R. 18(C). We, however, will review the merits of this appeal. 15 SCIOTO, 22CA3992
concern centers on behavior that occurs outside the court’s
presence. Flowers v. Flowers, 10th Dist. Franklin No. 10AP-
1176, 2011-Ohio-5972. Interference with visitation is typically
punished by civil contempt, id.; Mascorro v. Mascorro, 2d Dist.
Montgomery No. 17945, 2000 WL 731751 (Jun.9, 2000), as is the
failure to pay child support. Dressler v. Dressler, 12th Dist.
Warren Nos. CA2002-08-085 & CA2002-11-128, 2003-Ohio-5115, ¶ 14.
{¶29} “A prima facie case of civil contempt is made when the
moving party proves both the existence of a court order and the
nonmoving party’s noncompliance with the terms of the order.”
Jenkins v. Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶ 12 (2d
Dist.), quoting Wolf v. Wolf, 1st Dist. Hamilton No. C-090587,
2010-Ohio-2762, ¶ 13. Clear and convincing evidence must
support a civil contempt finding. See Brown v. Executive 200,
Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610. Clear and
convincing evidence is the level of proof that would “cause a
trier of fact to develop a firm belief or conviction as to the
facts sought to be proven.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus. Once
the plaintiff establishes a violation, the defendant bears the
burden to prove an inability to comply, and absent that proof, a
contempt finding is appropriate. Burks v. Burks, 2d Dist. 16 SCIOTO, 22CA3992
Montgomery No. 28349, 2019-Ohio-4292, ¶ 22.
{¶30} Generally, a trial court possesses broad discretion
when it considers a contempt motion. Burchett v. Burchett, 4th
Dist. Scioto No. 16CA3784, 2017-Ohio-8124, ¶ 19, Jones v. Jones,
4th Dist. Highland No. 20CA3, 2021-Ohio-1498, ¶ 28; State ex
rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-
Ohio-5614, 3 N.E.3d 179, ¶ 29. Thus, absent an abuse of
discretion, an appellate court will ordinarily uphold a trial
court’s contempt decision. E.g., Burchett at ¶ 19; Welch v.
Muir, 4th Dist. Washington No. 08CA32, 2009-Ohio-3575, ¶ 10. An
abuse of discretion is “‘an unreasonable, arbitrary or
unconscionable use of discretion * * *.’” State v. Kirkland,
140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting
State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d
671, ¶ 23.
{¶31} In the case sub judice, appellant asserts that the
trial court denied her due process when it found her in contempt
that related to three pro se motions that did not provide her
with sufficient notice of her alleged transgressions. In
particular, appellant argues that the motions failed to state
the grounds with sufficient particularity. Civ.R. 7(B)(1).
Appellant points out that all three pro se motions (May 1, 2020, 17 SCIOTO, 22CA3992
May 6, 2020, and May 26, 2020) used the Supreme Court of Ohio
Uniform Domestic Relations Form 21, but only state that
appellant should be held in contempt for “interference with
parenting time or other parenting time orders filed on June 27,
2017.” The forms did not provide information regarding the
specific dates or times that appellant allegedly interfered with
appellee’s parenting time. In fact, at the June 11, 2020
hearing on the contempt motions, the trial court stated, “the
Supreme Court forms that I personally very much dislike cause it
* * * doesn’t give you a reason to state for contempt. It just
says the other person’s in contempt I think.”
{¶32} Appellant also points out that, at the June 11, 2020
hearing, the trial court ruled that appellee could not submit
exhibits or call witnesses because he failed to provide
discovery in a timely manner. Appellant points out that because
the trial court did not make a specific finding of the acts
appellant committed that formed the basis of the contempt
ruling, she requested findings of fact and conclusions of law.
The same day, November 6, 2020, appellee filed yet another
motion for contempt that the court did not hear. Appellant,
however, alleges that the court simply adopted appellee’s
proposed conclusions of law that did not identify specific dates 18 SCIOTO, 22CA3992
or acts.
{¶33} Appellant further argues that, before the trial court
issued a final ruling regarding the 2020 motions, in 2021
appellee filed two additional contempt motions. Appellant
contends that the trial court referenced the 2021 hearings in
its entry, but suggests that the court considered testimony from
the still-in-progress June 3, 2021 hearing. Moreover, at the
October 2021 hearing, appellee withdrew his 2021 contempt
motions. Thus, at the April 2022 hearing appellant’s counsel
argued, “there was nothing in the record to find her in contempt
on. There were no dates permitted to be testified about. The
motions were not permitted to be testified about.” The court,
nonetheless, sentenced appellant to serve a suspended ten-day
jail sentence, pay a $250 fine, and pay appellee’s
transportation costs and transcript fees.
{¶34} Appellant further asserts that, although the October
27, 2020 judgment states that appellant could avoid a sanction
if the court is satisfied that appellant provided appellee
“sufficient” make-up parenting time, appellant’s counsel points
out appellant was “without clear direction on how many days that
she needed to purge,” and “with the confusion of this case,
we’re really unclear as to what parenting time order exists.” 19 SCIOTO, 22CA3992
The trial court determined that appellant could provide appellee
with 33 make-up days to purge the contempt finding, but
appellant argues that the court did not permit her to testify
regarding the dates that the court provided to appellee to
purge, then calculated the number of days to purge from
appellee’s withdrawn April 14, 2021 motion. Consequently,
appellant argues that the court did not have the authority to
find appellant in contempt for acts alleged to have occurred in
2021.
{¶35} We recognize that, although it does appear that both
parties have struggled to abide by court orders, after our
review we believe that the trial court’s finding of contempt on
this very confusing and ever changing record is unreasonable.
Although we greatly sympathize with the court’s unenviable task
of sorting through the multitude of motions, confusing testimony
and arguments, many of which appear to be repetitive and filed
for no specific purpose, courts must afford due process to
individuals accused of contempt. McCall v. Cunard, 6th Dist.
Sandusky No. S-07-013, 2008-Ohio-378, ¶ 20. Due process for
contempt proceedings includes providing the alleged contemnor
with notice of the allegations and an opportunity to be heard on
those allegations. State v. Hochhausler, 76 Ohio St.3d 455, 20 SCIOTO, 22CA3992
459, 668 N.E.2d 457 (1996); R.C. 2705.03. During a contempt
hearing, a court must consider the charge, hear the testimony,
the answer, and any explanation the accused offers, then
determine whether violations have occurred. In re J.M., 12th
Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶ 49.
{¶36} Although R.C. 2705.02 does not specify the form of
notice an alleged contemnor must receive, “to comply with due
process requirements, [the notice] must be given sufficiently in
advance of scheduled court proceeding so that the [contemnor]
has reasonable opportunity to prepare for the specific issues
presented.” Sassya v. Morgan, 11th Dist. Trumbull No. 2018-T-
0013, 2019-Ohio-1301, ¶ 28 (emphasis added). See also State ex
rel. Johnson v. County Court of Perry County, 25 Ohio St.3d 53,
495 N.E.2d 16 (1986). More significantly, for notice to comply
with due process requirements, it must “set forth the alleged
misconduct with particularity.” Sassya at ¶ 28.
{¶37} Turning to the case sub judice, we believe that
appellee’s May 1, 2020, May 6, 2020, and May 26, 2020 contempt
motions failed to provide sufficient notice so that appellant
could formulate a defense. After our review, we also agree with
appellant’s assessment that the trial court may have permitted 21 SCIOTO, 22CA3992
testimony concerning parenting time disputes for purposes other
than contempt, but used that testimony to support a contempt
finding, including, it appears, some allegations from a motion
that the court noted appeared to be still pending in 2021, then
later withdrawn. Moreover, we agree with appellant that the
trial court did not permit appellant to be adequately heard
regarding her efforts to comply with the court’s prior orders.
However, we again sympathize with the trial court in this matter
having been placed in an unenviable position with multiple
motions and responses that tend to confuse the issues rather
than to provide clarity.
Therefore, after our review we conclude that the trial
court acted unreasonably when it found appellant in contempt
related to appellee’s pro se motions. Accordingly, we sustain
appellant’s first assignment of error and reverse the trial
court’s judgment.
II.
{¶38} In her second assignment of error, appellant asserts
that the trial court erred when it modified the parties’
parenting time schedule. In particular, appellant notes that 22 SCIOTO, 22CA3992
the trial court did not refer to R.C. 3109.051, which governs
parenting time when there is no shared parenting decree, or the
R.C. 3109.051 best interest factors.
{¶39} A post-decree motion to modify parenting time, when no
shared parenting plan exists, is governed by R.C. 3109.051. As
appellant asserts, although a trial court is not required to
explicitly refer to all the best interest factors, it must be
apparent from the record that the court considered those
factors. Todd v. Todd, 4th Dist. Athens No. 18CA26, 2019-Ohio-
1466, ¶ 14, quoting Sarchione-Tookey v. Tookey, 4th Dist. Athens
No. 17CA41, 2018-Ohio-2716, ¶ 32. R.C. 3109.051(D) provides:
(D) In determining whether to grant parenting time to a parent pursuant to this section or section 3109.12 of the Revised Code or companionship or visitation rights to a grandparent, relative, or other person pursuant to this section or section 3109.11 or 3109.12 of the Revised Code, in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters under this section or section 3109.12 of the Revised Code or visitation matters under this section or section 3109.11 or 3109.12 of the Revised Code, the court shall consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the child's parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance between those residences, and if 23 SCIOTO, 22CA3992
the person is not a parent, the geographical location of that person's residence and the distance between that person's residence and the child's residence;
(3) The child's and parents' available time, including, but not limited to, each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting time and to facilitate the other parent's parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected 24 SCIOTO, 22CA3992
child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;
(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child's parents, as expressed by them to the court; 25 SCIOTO, 22CA3992
(16) Any other factor in the best interest of the child.
{¶40} In the case at bar, other than the trial court’s
reference to appellee moving far from his previous residence and
the parties’ contentious relationship, our review reveals that
the trial court may not have sufficiently considered the
appropriate statutory factors. Once again, however, we
recognize that the trial court had an unenviable task to attempt
to navigate through this contentious proceeding.
{¶41} Accordingly, based upon the foregoing reasons, we
sustain appellant’s second assignment of error.
III.
{¶42} In her final assignment of error, appellant asserts
that the trial court erred when it established child support and
failed to find appellee in contempt for non-payment of support.
{¶43} An appellate court must use the abuse of discretion
standard when reviewing matters related to child support. Booth
v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). Once
again, the abuse of discretion standard implies that a court's
attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). See, also, Masters v. Masters, 69 Ohio St.3d 83, 85, 26 SCIOTO, 22CA3992
630 N.E.2d 665 (1994).
{¶44} “It is well established in the law of Ohio * * * that
a person charged with contempt for the violation of a court
order may defend by proving that it was not in his power to obey
the order.” Stychno v. Stychno, 11th Dist. Trumbull No. 2008-T-
0117, 2009-Ohio-6858, ¶ 38, citing Courtney v. Courtney, 16 Ohio
App.3d 329, 334, 475 N.E.2d 1284 (3d Dist.1984). “Once a person
seeking contempt has demonstrated a defendant's failure to pay
child support, the burden of proof shifts to the defendant to
prove his or her inability to pay.” Smith v. Smith, 11th Dist.
Geauga No. 2013-G-3126, 2013-Ohio-4101, ¶ 41; see State ex rel.
Cook v. Cook, 66 Ohio St. 566, 64 N.E. 567 (1902), paragraph one
of the syllabus (“In a proceeding in contempt against a party
who has refused to comply with a money decree for alimony, it is
not essential that the complaint allege that the party is able
to pay the money. The decree imports a finding of the court
that he is able to pay, and the burden is on him by allegation
and proof to establish his inability.”); Liming v. Damos, 133
Ohio St.3d 509,2012-Ohio-4783, 979 N.E.2d 297, ¶ 20.
{¶45} In the case sub judice, appellant contends that
appellee did not provide documentation of his inability to pay,
testified at varying points during the hearing that he had no 27 SCIOTO, 22CA3992
income and he could not afford counsel, but later stated he is
enrolled in online college classes and agreed to pay expenses
for the children to travel to and from his Florida home.
Appellant further argues that the court (1) did not make
findings about appellant’s future ability to work, and (2)
should have requested documentation before it imputed minimum
wage to him for child support purposes.
{¶46} Initially, we recognize that the trial court ordered
child support, but the parties later agreed to a nonconventional
child support process. In particular, the parties agreed that
appellee must: (1) open a 529 college savings account for each
child, (2) deposit $200 per month per child into that account,
and (3) contribute $200 per month per child into a checking
account for their benefit. At the June 11, 2020 hearing,
appellee appeared pro se, testified that he was behind in these
payments, and asked the court to terminate their prior agreement
and calculate traditional CSEA child support. Appellee also
testified that he could not work due to a work-related injury
and provided no income documentation.
{¶47} We recognize that appellee provided somewhat
inconsistent testimony that he could not pay child support, but
could pay for college classes and transportation costs for the 28 SCIOTO, 22CA3992
children. Moreover, much of appellee’s testimony is not
supported by any documentation concerning financial status.
Consequently, we believe that the trial court acted unreasonably
and should have fully considered the parties’ financial
positions before it rendered judgment on this issue.
{¶48} Accordingly, based upon the foregoing reasons, we
reverse the trial court’s judgment and remand for further
proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be reversed and the cause remanded for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed. SCIOTO, 22CA3992
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Domestic Relations Division, to carry these judgments into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.