Riley v. Riley

2022 Ohio 67

• Court: Ohio Court of Appeals
• Decided: January 12, 2022
• Docket: 21 CA 00004
• Status: Published

Opinion

[Cite as Riley v. Riley, 2022-Ohio-67.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

DAVID L. RILEY JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 21 CA 00004 KAYLEIGH A. RILEY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 19 DV 00216

JUDGMENT: Afffirmed

DATE OF JUDGMENT ENTRY: January 12, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID L. RILEY DANAMARIE K. PANNELLA PRO SE HOLLAND AND MUIRDEN 6522 Stagecoach Road 1343 Sharon-Copley Road Rushville, Ohio 43150 P. O. Box 345 Sharon Center, Ohio 44274 Perry County, Case No. 21 CA 00004 2

Wise, John, J.

{¶1} Defendant-Appellant Kayleigh A. Riley appeals the March 4, 2021, decision

of the Perry County Court of Common Pleas, Domestic Relations Division, finding her in

contempt of court.

{¶2} Appellee has not filed a brief in this matter

STATEMENT OF THE FACTS AND CASE

{¶3} The undisputed facts as set forth by the trial court in its March 4, 2021,

Judgment Entry, are as follows:

{¶4} On September 9, 2020, the parties were divorced and a Shared Parenting

Decree was filed wherein the parties were ordered to fulfill all obligations imposed under

the shared parenting plan. The shared parenting plan contained a provision for the family

dog. The parties, who were both represented by Counsel, agreed that the issue was to

be determined by the Magistrate. The Magistrate filled in that provision in the Shared

Parenting Plan stating:

After taking testimony, the Court orders that the family dog Nellie

shall follow the minor children's schedule. The parties shall equally divide

all expenses for the family dog. Major veterinary decisions shall be made

by mother. If a licensed Veterinarian opines that the dog traveling is

detrimental to her health, then the dog shall live with mother.

{¶5} On September 18, 2020, Appellee filed a motion for contempt against

Appellant alleging that she had not complied with the Shared Parenting Decree because

she did not transfer Nellie with the minor children. Perry County, Case No. 21 CA 00004 3

{¶6} On October 5, 2020, Appellant filed a response to the motion, which

included a letter from licensed veterinarian Dr. Rhonda Masterson who stated that it would

be in the dog’s “best interest” to stay with Appellant full-time.

{¶7} On November 4, 2020, a contempt hearing was held before a magistrate.

At said hearing, the Magistrate noted that Appellant had attempted to file the letter from

the Veterinarian with the court along with other documentation and photographs but that

same were returned to Appellant because the case was closed and because it was not

presented in the form of a motion. (T. at 5-6, 27).

{¶8} On November 24, 2020, a Magistrate’s Decision and Order were filed in this

case wherein the Magistrate found Appellant in contempt for failing to send the dog,

Nellie, with the minor children during Appellee’s parenting time. In said Decision, the

Magistrate stated that after the September 9, 2020, Decision was announced, Appellant

… inquired of the Court as to whether she just needed to go to a

veterinarian to avoid Nellie having to travel in accordance with the Shared

Parenting Plan. The Court admonished [Appellant] and articulated that if

[Appellant] made efforts to manufacture a reason why Nellie could not travel

with the children to [Appellee’s] home. [sic] Further, the Court noted than an

outcome of such efforts could result in Nellie living exclusively with

[Appellee].

(11/24/2020 Magistrate’s Decision ¶2).

{¶9} The Magistrate went on to clarify

Further, the Court will note that it did not place any language in the

Shared Parenting Plan that would automatically allow Nellie to stay with Perry County, Case No. 21 CA 00004 4

[Appellant] if an opinion from a veterinarian was obtained. Instead, a Motion

to Modify the Shared Parenting Plan would need to be filed and an

evidentiary hearing would need to occur. Further, reports from the experts

providing their opinions would have to be distributed. Lastly, the individual

providing the expert testimony would have to be subpoenaed to Court to

testify and be qualified as an expert in accordance with the Ohio Rules of

Evidence.”

(11/24/2020 Magistrate’s Decision ¶3).

{¶10} The Magistrate found that Appellant had failed to send Nellie with the

children during any of Appellee’s parenting time, and that Appellant decided to “willfully

disregard the orders of the Court.” (11/24/2020 Magistrate’s Decision ¶4).

{¶11} The Magistrate found Appellant guilty of contempt and sentenced her to

thirty (30) days in jail and imposed a fine of $250.00. The fine and jail were stayed on

condition that Appellant ensured the dog is with the minor children during each and every

period of parenting time.

{¶12} On November 27, 2020, Appellant filed an Objection to Magistrate’s

Decision; Motion for Leave to Supplement Objections.

{¶13} On February 22, 2021, Appellant filed a Supplement to Objection to

Magistrate's Decision.

{¶14} At said hearing, Appellant submitted a letter from Dr. Masterson. The court

found that the letter was hearsay, but admitted it as evidence. The letter discusses

pictures of frozen water bowls and the dog being left out in the cold, which were issues Perry County, Case No. 21 CA 00004 5

from the divorce. These issues were not raised after the Decree of Divorce and Shared

Parenting Decree were filed.

{¶15} The trial court noted that neither party filed an appeal of the Shared

Parenting Decree ordering the family dog to follow the children's schedule. The court

further noted that Dr. Masterson’s letter states that Nellie is in good physical condition.

The court further noted that Dr. Masterson does not state that the dog traveling is

detrimental to her health.

{¶16} By Judgment Entry filed March 4, 2021, the trial court overruled Appellant’s

objections in part. The trial court found Appellant in contempt of court for failing to allow

the dog to follow the minor children's schedule, which the court found was the current

court order. The court found that the letter submitted by Appellant from the Veterinarian

did not specifically state that it is detrimental to the dog’s health to travel. The court

imposed a fine of $250.00, which was stayed on the condition that Appellant grant the

Appellee make-up time with Nellie for the times she should have been at his home from

the date of the decree on September 9, 2020, to the filing of the contempt order on

September 18, 2020. The trial court then ordered the make-up time to be completed within

thirty (30) days.

{¶17} Appellant now appeals, assigning the following sole error for review:

ASSIGNMENT OF ERROR

{¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DETERMINED THAT APPELLANT WAS IN CONTEMPT OF COURT FOR FAILING TO

TRANSFER POSSESSION OF HER DOG, NELLIE, ON THE SAME SCHEDULE AS Perry County, Case No. 21 CA 00004 6

HER CHILDREN'S SHARED PARENTING PLAN WHEN SHE RECEIVED A PRIOR

OPINION THAT TRAVELING WOULD BE DETRIMENTAL THE DOG.”

I.

{¶19} Appellant, in her sole assignment of error, argues that the trial court erred

in overruling her objections to the Magistrate’s Decision and finding her in contempt of

court. We disagree.

{¶20} When reviewing objections to a magistrate's decision, the trial court is not

required to follow or accept the findings or recommendations of its magistrate. In re

Anderson, 2d Dist. Montgomery No. 25367, 2013–Ohio–2012, ¶ 14. Civ.R. 53 instructs

the trial court to conduct an independent review of the facts and conclusions contained in

the magistrate's report and enter its own judgment. Kovacs v. Kovacs, 6th Dist. Erie No.

E–03–051, 2004–Ohio–2777, ¶ 6. Thus, the trial court's standard of review of a

magistrate's decision is de novo. Howard v. Wilson, 186 Ohio App.3d 521, 2010–Ohio–

1125, 928 N.E.2d 1180, ¶ 7.

{¶21} However, “[w]hen a court of appeals reviews the decision of a trial court

overruling objections to a magistrate's decision, the standard of review is abuse of

discretion.” Palmer v. Abraham, 6th Dist. Ottawa No. OT–12–029, 2013–Ohio–3062, ¶

10.

{¶22} This Court also reviews contempt findings under an abuse of discretion

standard. Wadian v. Wadian, 5th Dist. Stark No. 2007CA00125, 2008-Ohio-5009.

{¶23} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Perry County, Case No. 21 CA 00004 7

{¶24} “Civil contempt is defined as that which exists in failing to do something

ordered to be done by the court in a civil action for the benefit of the opposing party

therein.” Beach v. Beach (1955), 99 Ohio App. 428, 431, 130 N.E.2d 164, 134 N.E.2d

162. “It is irrelevant that the transgressing party does not intend to violate the court order.”

Pedone v. Pedone (1983), 11 Ohio App.3d 164, 165. “If the dictates of the judicial decree

are not followed, a contempt citation will result.” Id.

{¶25} The Ohio Supreme Court has explicitly held a party acting innocently and

not in intentional disregard of a court order could not use that innocence as a defense to

a charge of civil contempt. Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271

N.E.2d 815 [56 O.O.2d 31], paragraph three of the syllabus. “The absence of willfulness

does not relieve from civil contempt. * * * An act does not cease to be a violation of a law

and of a decree merely because it may have been done innocently.” McComb v.

Jacksonville Paper Co. (1949), 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599.

{¶26} “A court has authority both under R.C. 2705.02(A) and on the basis of its

inherent powers to punish the disobedience of its orders with contempt proceedings.”

Zakany v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984). “The purpose of sanctions

in a case of civil contempt is to compel the contemnor to comply with lawful orders of a

court, and the fact that the contemnor acted innocently and not in intentional disregard of

a court order is not a defense to a charge of civil contempt.” Windham Bank v.

Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971). “It is irrelevant that the

transgressing party does not intend to violate the court order. If the dictates of the judicial

decree are not followed, a contempt citation will result.” Pedone v. Pedone, 11 Ohio

App.3d 164, 463 N.E.2d 656 (8th Dist. 1983). Perry County, Case No. 21 CA 00004 8

{¶27} In a civil contempt proceeding, the movant bears the initial burden of

demonstrating by clear and convincing evidence that the other party violated an order of

the court. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980). “Clear

and convincing evidence” is evidence that will form a firm belief in the mind of the trier of

fact as to the facts sought to be established. Cincinnati Bar Assn. v. Massengale, 58 Ohio

St.3d 121, 568 N.E.2d 1222 (1991). Determination of clear and convincing evidence is

within the discretion of the trier of fact. Id.

{¶28} A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court. Geary v. Geary, 5th Dist. Delaware No. 14CAF050033, 2015-Ohio-

259.

{¶29} The record shows Appellee met his burden of demonstrating, by clear and

convincing evidence, that Appellant violated the September 9, 2020, order of the court by

not sending the family dog with the children during Appellee’s parenting time. Appellant

admitted she did not send the dog, but testified that she believed that she did not have to

because she had a letter from a veterinarian stating that the transfers would not be in the

dog’s best interest.

{¶30} Upon review, we find that the Court’s order that the dog was to follow

children according to the Shared Parenting schedule was and is the current order of the

court. The order has not been modified and at the time of the filing of this appeal, no

motion to modify the Shared Parenting Plan had been filed to change the order as it

applies to the dog. Further, as stated by the trial court, the veterinarian’s letter does not Perry County, Case No. 21 CA 00004 9

specifically state that traveling back and forth with the children between households would

be “detrimental” to Nellie’s health.

{¶31} The trial court, as the trier of fact, “is the sole judge of the weight of the

evidence and the credibility of the witnesses.” McKay Machine Co. v. Rodman, 11 Ohio

St.2d 77, 228 N.E.2d 304 (1967).

{¶32} Based on the record before us, we find the trial court did not abuse its

discretion in finding Appellant in contempt. We do not find the trial court's decision to be

arbitrary, unreasonable, or unconscionable.

{¶33} Appellant's sole assignment of error is overruled.

{¶34} Accordingly, the decision of the Court of Common Pleas, Domestic

Relations Division, Perry County, Ohio, is affirmed.

By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, J., concur.

JWW/kw 0110