[Cite as Kelley v. Kelley, 2022-Ohio-4306.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
KRISTIN J. KELLEY COURT OF APPEALS NO. {87}WD-21-078
APPELLEE TRIAL COURT NO. 2016 DR 0216
V.
GREGORY A. KELLEY
APPELLANT
DECISION AND JUDGMENT
Decided: December 2, 2022
***** {¶ 1} This is an appeal from judgments of the Wood County Court of Common
Pleas, Domestic Relations Division, which denied, after an evidentiary hearing, the
reciprocal show-cause motions of defendant-appellant father, Gregory A. Kelley, and of
plaintiff-appellee mother, Kristin J. Kelley,1 to find the other party in contempt of the
January 9, 2020 custody order, suspended appellant’s parenting time, and denied
1 Appellee did not appeal the denial of her show-cause motion. appellant’s oral motion to continue the show-cause hearing. For the reasons set forth below,
this court affirms the judgments of the trial court.
I. Background
{¶ 2} After nearly 18 months of litigation, the parties were granted a divorce on May
30, 2018, and appellee was designated the children’s residential parent and legal custodian.
Since then the parties have continuously litigated various matters relating to the custody of
their two minor children. This court has twice affirmed the prior custody decisions of the
trial court, including the subject January 9 order. Kelley v. Kelley, 6th Dist. No. WD-19-
073, 2020-Ohio-1535 and Kelley v. Kelley, 6th Dist. No. WD-20-010, 2020-Ohio-6778.
{¶ 3} On July 8, 2020, appellant filed a motion to show cause alleging three
parenting time violations by appellee in contempt of the trial court’s January 9 custody
order: (1) when appellee denied appellant three days, from June 30 to July 3, out of three
weeks of vacation, with the younger child; (2) when appellee denied appellant parenting
time for the younger child on July 5, and (3) the children are not punished when they refuse
to have parenting time with appellant. Appellant supplemented his allegations that he has
had only irregular parenting time with the older child since that child’s September 9 refusal
to be with appellant. In addition to seeking a court order of contempt by appellee, appellant
sought make-up parenting time and an award of attorney fees and costs.
{¶ 4} On July 28, 2020, and subsequently amended on September 10, appellee:
opposed appellant’s motion, moved to modify the trial court’s January 9 custody order, and
filed her own motion to show cause for appellant’s contempt on three occasions. On April
2. 2 and July 4, appellant used the court-ordered communication platform, Our Family
Wizard, to disparage appellee’s parenting. Then, on September 9, appellant upset both
children while at appellee’s residence such that both children unconditionally and clearly
refused further parenting time with him, as verified by a subsequent police report and
investigation. In opposing appellant’s show-cause motion, appellee argued the reason she
picked up the younger child three days early during appellant’s vacation time was due to
the younger child experiencing an emotional trauma, crying uncontrollably, and
demanding to leave appellant and return to appellee. The trial court had authorized the
younger child to express parenting time wishes per its August 22, 2019 order. Appellee
moved to modify the January 9 custody order to reconsider appellant’s parenting time
because appellant’s documented history of communication problems has resulted in the
younger child being angry towards, scared of, and feel unsafe with, appellant. In addition
to seeking a court order dismissing appellant’s motion and granting appellee’s motion,
appellee sought an award of attorney fees and costs.
{¶ 5} On October 1, 2020, the magistrate appointed a guardian ad litem (“GAL”),
finding those services “appropriate in this matter prior to proceeding herein.” On June 17,
2021, the GAL filed a report that recommended eight actions: (1) suspending appellant’s
parenting time under the January 9, 2020 custody order limiting his contact to during
“relationship repair counseling” with the children’s counselor; (2) the children’s counselor
to determine when it is appropriate to introduce appellant in the sessions with the children,
“taking the children’s wishes into consideration”; (3) appellant should continue with his
3. own counselor and authorize the sharing of information between therapists “to assist in
reunification”; (4) the parties to follow the recommendations of the counselors “and work
toward Father’s reunification with the children”; (5) the older child’s continued treatment
with a psychiatrist; (6) due to limiting appellant’s contact with the children to “a therapeutic
setting,” appellant to refrain from attending their extracurricular activities; (7) continued
use of Our Family Wizard for factual communications between the parties and refrain from
derogatory remarks; and (8) appellant to continue to have access to the children’s medical
and school records.
{¶ 6} The magistrate held a consolidated hearing on all pending motions on June
29, 2021. At the start of the hearing, appellant made an oral motion to continue the hearing
“to allow the treatment and the counseling that’s recommended in this matter [by the GAL]
to take its course a little bit and see if we can reconvene.” The magistrate responded, “Well,
I know you won’t be surprised that the Court is going to deny a continuance. I understand
a lot of these things do require time and patience, and that’s probably the best way to work
through them. Unfortunately, the Supreme Court timelines don’t allow that and things just
can’t linger in court forever, obviously. A lot of these things are best served outside of the
Court. But we are already over time and so the Court will deny the request for a
continuance.”
{¶ 7} The magistrate then heard testimony from five witnesses and admitted 11
exhibits into evidence. On August 16, the magistrate issued a decision with 47 findings of
fact and five conclusions of law. The magistrate decided: (1) to deny appellant’s July 8,
4. 2020 show-cause motion, (2) to deny appellee’s July 28, as amended, show-cause motion,
(3) to deny appellant’s October 27 proposed shared parenting plan,2 (4) to adopt the GAL’s
eight recommendations, (5) to order the parties equally divide court costs, (6) to order each
party pay their own attorney fees, and (7) to discharge the GAL’s services.
{¶ 8} Appellant timely objected, with supplement, to the magistrate’s decision for
four reasons: (1) failure to find appellee in contempt, (2) failure to award attorney fees, (3)
suspending his parenting time, and (4) alternatively failing to continue the hearing date
until commencement of reunification counseling. Appellee opposed appellant’s objections.
{¶ 9} On October 15, 2021, the trial court filed its judgment entry approving and
adopting the magistrate’s August 16 decision, after independently considering the record,
including appellant’s objections. The trial court specifically determined the magistrate’s
August 16 decision “properly reviewed the purpose of civil contempt” when evaluating
both parties’ separate show-cause motions; the magistrate “properly considered the
relevant factors of R.C. 3109.051(D) when evaluating parenting time”; and the magistrate
“properly considered the factors of R.C. 3109.04 when considering whether shared
parenting was appropriate.” The trial court determined, among other matters, to suspend
the January 9, 2020 parenting time order; to allow time for the children to engage in
relationship repair counseling with Ms. Palicki; for Ms. Palicki to take the children’s
wishes into consideration; to await Ms. Palicki’s determination of when it is appropriate
2 Appellant does not appeal the denial of his proposed shared parenting plan.
5. introduce appellant to the counseling sessions with the children; and for the parties to
equally divide court costs and pay their own attorney fees.
{¶ 10} Appellant timely appealed the trial court’s judgment setting forth four
assignments of error:
1. The trial court erred in failing to find the Plaintiff/Appellee in
contempt of court.
2. The trial court erred in not imposing reasonable purge conditions,
including an award of attorney fees.
3. The trial court erred in suspending the Defendant/Appellant’s
parenting time.
4. The trial court erred in not continuing the hearing for reunification
counseling.
II. Contempt of Court
{¶ 11} We will address appellant’s four assignments of error together as they arise
from appellant’s motion for contempt.
{¶ 12} Appellant argues for his first and second assignments of error the trial court
abused its discretion when it failed to find appellee in contempt of the trial court’s January
9, 2020 custody order for the alleged violations and for failing to sanction appellee.
{¶ 13} Appellant argues for his third assignment of error the trial court failed to
provide “the appropriate weight” to three of the 16 factors under R.C. 3109.051(D) before
suspending his parenting time as part of the contempt proceedings: the prior, positive
6. interactions and interrelationships of the children with appellant pursuant to R.C.
3109.051(D)(1), appellant’s relocation to be geographically closer to the children pursuant
to R.C. 3109.051(D)(2), and appellee’s failure to facilitate appellant’s parenting time rights
when the children refuse parenting time with appellant pursuant to R.C. 3109.051(D)(10).
{¶ 14} Appellant argues for his fourth assignment of error, the trial court abused its
discretion when it denied an oral motion to continue of the contempt hearing to allow time
for the GAL’s recommended therapeutic reunification counseling.
A. Standards of Review
{¶ 15} “Contempt of court is defined as disobedience of an order of a court. It is
conduct which brings the administration of justice into disrespect, or which tends to
embarrass, impede or obstruct a court in the performance of its functions.” Windham Bank
v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus;
R.C. 2705.02(A). The burden is on the moving party in a civil-contempt proceeding to
provide clear and convincing evidence that the alleged contemnor is in contempt of court.
State ex rel. Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637, 982 N.E.2d 664, ¶
3, citing Pugh v. Pugh, 15 Ohio St.3d 136, 139, 472 N.E.2d 1085 (1984). Appellate review
of the trial court’s decision in a civil-contempt proceeding is for an abuse of discretion.
State ex rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d
179, ¶ 21. Abuse of discretion “‘connotes more than an error of law or judgment; it implies
that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62
7. Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Because abuse of discretion review is highly
deferential, “we will not lightly substitute our interpretation for that of the issuing court.”
Hunter at ¶ 29.
{¶ 16} The trial court’s decision denying appellant’s motion for contempt was the
outcome of overruling appellant’s objections to the magistrate’s decision to deny
appellant’s motion for contempt. Appellate review of the trial court’s decision to overrule
objections to a magistrate’s decision is also for an abuse of discretion. Brancatto v.
Boersma, 6th Dist. Lucas No. L-12-1271, 2013-Ohio-3052, ¶ 9.
{¶ 17} We acknowledge that while the trial court must consider the relevant 16
factors under R.C. 3109.051(D) for suspending appellant’s parenting time, the trial court
shall determine in its sound discretion the parenting time that is in the best interests of the
children. Kelley, 6th Dist. Wood No. WD-20-010, 2020-Ohio-6778, at ¶ 7, citing Braatz v.
Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph two of the syllabus. In fact,
the trial court must consider any other factor in the children’s’ best interests. Id. at ¶ 8,
citing R.C. 3109.051(D)(16). We may look to the entire record to determine if all of the
necessary factors were considered. Id.
{¶ 18} Finally, we review the grant or denial of a continuance for an abuse of
discretion. In re Edward M., 6th Dist. Lucas Nos. L-04-1282, L-04-1304, 2005-Ohio-
3354, ¶ 21, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).
8. B. Analysis
{¶ 19} This appeal challenges the trial court’s decisions denying appellant’s motion
for contempt and suspending appellant’s parenting time, which were shown by the record
to be closely intertwined. The trial court conducted the required contempt hearing on June
29, 2021, at which, “the court shall investigate the charge and hear any answer or testimony
that the accused makes or offers and shall determine whether the accused is guilty of the
contempt charge.” R.C. 2705.05(A). The record contains the transcript, with admitted
exhibits, of the show-cause hearing, as well as the pleadings specifically reviewed by the
trial court, including appellant’s objections, as supplemented, to the magistrate’s decision.
Prior to reaching its decisions, the trial court specifically indicated that it “fully considered”
the entire record and “pertinent authorities.” Pursuant to Civ.R. 53(D)(4)(d), the trial court
conducted the necessary independent review and stated in its October 15, 2021 journalized
entry, in relevant part, “The Court, upon full consideration of the objections filed, and
having independently considered the August 16, 2021, Magistrate’s Decision and all
pertinent pleadings, memoranda, authorities, and information filed or provided to the
Court, and the court hearing transcripts and exhibits, finds that the Magistrate’s Decision
filed August 16, 2021 is approved.”
{¶ 20} As a result of its independent review, the trial court decided it is in the
children’s best interests to accept the following GAL recommendations to suspend
appellant’s parenting time, as relevant to this appeal:
9. a. Father’s current parenting time as provided in the January 9, 2020,
Order should be suspended and any contact between Father and the minor
children should occur in relationship repair counseling with Stacy Palicki.
b. The minor children should continue seeing Stacy Palicki and Stacy
Palicki shall make the determination when it is appropriate to introduce
Father in sessions with the minor children, taking the children’s wishes into
consideration.
***
d. The parties shall follow all recommendations of the counselors and
work toward Father’s reunification with the children.
f. At this time, Father should refrain from attending any extra-
curricular activities of the minor children since it is being recommended that
contact between Father and the minor children only occur in a therapeutic
setting.
{¶ 21} As discussed below, we do not find that appellant met his burden by
providing clear and convincing evidence that appellee is in contempt of court, nor do we
find the trial court abused its discretion when it reached its determinations. Consequently,
we do not find any trial court error for failing to impose contempt sanctions on appellee.
R.C. 2705.05(A); Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297,
¶ 30 (purge conditions, if any, only arise from a finding of contempt).
10. {¶ 22} First, appellee did not precipitate appellant’s loss of parenting time. We find
the magistrate’s August 16, 2021 decision, which the trial court adopted, addresses both
the contempt claim and applicable parenting time factors:
Although the current Order of the Court provided that the Father have
specified parenting time with the minor children, * * * [there is a] history *
* * involving the relationship between father and the minor children. * * *
As stated by the Guardian Ad Litem “there are other factors affecting the
minor children’s relationship with father and that if these issues were not
present, that the parties would both be capable of honoring and facilitating
court approved parenting time rights of visitation and companionship rights.”
* * * Unfortunately, Father’s relationship with the children is fragile at this
time, perhaps as a result of the children’s diagnoses and uncomfortable
situations with their father. Father clearly loves his children and wants to
repair this relationship, but his actions up to this point have backfired.
Father’s engagement in counseling along with the children’s counseling
should assist in repairing the relationship. * * * The children are both
teenagers and they are able to articulate their wishes and concerns. While
these wishes do not dictate the outcome of the case, they should be taken into
consideration while making a decision. * * * The children are engaged in
counseling to allow them to stay healthy and to work toward a healthy
relationship with their father. * * * Despite Father’s insistence that Mother
11. is denying him parenting time, the testimony indicates that the children’s
refusal to visit is not as a result of Mother’s actions. The last time [the
younger child] left Father, it was clearly initiated by him. The last time [the
older child] got in the car to spend time with Father, he ultimately left the car
and stopped all parenting time after Father repeatedly honked the horn in an
effort to get [the younger child] to come outside. Clearly Mother did not
precipitate that refusal. In fact, Mother testified that she encouraged [the
children] to see their father and that it was at her urging that [the children]
started seeing their father again in the spring of 2020 after a lapse of
approximately 9 months.
{¶ 23} Second, appellant’s focus on appellee’s failure to punish the children’s
disobedience is misplaced. The Wood County standard local parenting plan and
companionship schedule recognizes that when a child strongly opposes being with the
other parent, the first step is for the parents to calmly talk with the child as to the child’s
reasons and for the parents to work together to do what is in the child’s best interests in
consultation with a mental health professional for assistance. Appellee testified at the
hearing that after a child’s refusal to appellant’s parenting time, she discussed the situation
with the child and with each child’s mental health counselor. Appellee did not punish a
child’s refusal to have further parenting time with appellant upon the advice of the child’s
mental health counselor, who met with the child following each upsetting incident with
appellant. The record shows the trial court has repeatedly ordered to explicitly have the
12. children’s wishes for appellant’s parenting time given consideration, even substantial
consideration, in consultation with various professionals’ recommendations. The trial court
has again articulated that deference to the children and Miss Palicki rather than seek to
punish the children for opposing parenting time with appellant.
{¶ 24} Third, appellant’s suspended parenting time is tailored to the current
situation. The GAL recommended suspending appellant’s parenting time in order for the
family counseling process to occur in a therapeutic setting with the goal of reunification
and restoration of appellant’s parenting time. The GAL testified about her interview with
Ms. Palicki, whose role is very new. Ms. Palicki was recommended as “one of the top
counselors for high-conflict family situations.” The reunification process is in the early
stage, called the “pre-contemplation stage of change,” and the children are still not ready
to meet with appellant. Ms. Palicki’s first step will be to “bring the [children] in to work
with them on * * * coping skills needed to * * * reunify with their dad.” The guardian ad
litem also testified that Ms. Palicki “wanted dad to continue with his therapy so that once
the [children] are ready and * * * once father identifies with some of the behaviors that
have traumatized the [children] and gained insight into his thinking errors, she then wanted
to schedule a reunification counseling session between the [children] and their father.” Ms.
Palicki “absolutely believes that * * * this family needs to work towards [reunification.”
{¶ 25} The guardian ad litem testified that if appellant’s parenting time were not
suspended to allow the children to develop the necessary coping skills in response to
appellant’s upsetting behaviors, then his parenting time “would further sour the
13. relationship.” While R.C. 3109.051(D) does not prevent a trial court’s discretion to give
special weight to a particular factor, none of the three factors argued by appellant on appeal
compels the trial court to outweigh them in appellant’s favor. See Harrold v. Collier, 107
Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 43 (acknowledging the special weight
required by R.C. 3109.051(D)(15)).
{¶ 26} Fourth, at the time of appellant’s oral motion for a continuance at the start of
the evidentiary hearing, the trial court had not yet received evidence of the GAL’s
recommendations. Thus, appellant’s motion was made prior to the trial court receiving any
evidence supporting appellant’s motion for contempt, in response to which the GAL
prepared the specific recommendations. Appellant requires us to assume facts not in
evidence, and we decline to do so. Even if we did accept that assumption, our review of
the entire record does not indicate the trial court abused its discretion when it refused to
delay any further the contempt matter that appellant initiated and vigorously litigated.
{¶ 27} We reviewed the record and do not find that appellant met his burden by
providing clear and convincing evidence that appellee is in contempt of court, particularly
where there is no evidence that appellee caused the lost parenting time. We do not find the
trial court abused its discretion when it did not: delay the June 29, 2021 contempt hearing,
find appellee in contempt of court, sanction appellee, or accepted the GAL’s
recommendation to suspend appellant’s parenting time until the children’s reunification
counselor determined reunification was appropriate.
14. {¶ 28} Appellant’s first, second, third and fourth assignments of error are not well-
taken.
IV. Conclusion
{¶ 29} On consideration whereof, the judgments of the Wood County Court of
Common Pleas, Domestic Relations Division, are affirmed. Appellant is ordered to pay
the costs of this appeal pursuant to App.R. 24.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. [[Applied Signature]] JUDGE
Christine E. Mayle, J. [[Applied Signature 2]] JUDGE
Myron C. Duhart, P.J. [[Applied Signature 3]] CONCUR JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
15.