[Cite as Steele v. Steele, 2013-Ohio-3655.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CHARLES R. STEELE :
Plaintiff-Appellant : C.A. CASE NO. 25713
v. : T.C. NO. 05DR864
BOBBIE JO STEELE nka MALOCU : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellee :
:
..........
OPINION
Rendered on the 23rd day of August , 2013.
H. STEVEN HOBBS, Atty. Reg. No. 0018453, 119 North Commerce Street, Lewisburg, Ohio 45338 Attorney for Plaintiff-Appellant
BRIAN A. SOMMERS, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Defendant-Appellee
FROELICH, J.
{¶ 1} Charles Steele appeals from a judgment of the Montgomery County 2
Court of Common Pleas, Domestic Relations Division, which vacated a magistrate’s finding
that his former wife Bobby Jo Steele (n.k.a. Malocu) had been in contempt for interfering
with his parenting time and his telephone contact with their daughter.
{¶ 2} For the reasons that follow, the judgment of the trial court will be
affirmed.
{¶ 3} Steele and Malocu were divorced in 2007 and entered into a shared
parenting plan with respect to their daughter, M.S. In 2010, the shared parenting plan was
terminated, and Malocu was designated as the residential parent; Steele continued to have
expanded visitation with M.S.
{¶ 4} In July 2011, Steele filed a motion to show cause why Malocu should not
be held in contempt for denial of parenting time; in October 2011, he filed an amended
motion in which he asserted that Malocu had also interfered with his telephone contact with
M.S.1 The alleged violations occurred during July 2011, shortly after an incident which led
Malocu to suspect and to initiate investigations of sexual abuse of M.S. by Steele.
{¶ 5} Steele’s motion to show cause was referred to a magistrate, who conducted
a hearing on April 6 and May 15, 2012. The evidence presented at the hearing established
the following.
{¶ 6} In late June 2011, M.S., age 6 or 7, reported to her mother that her
“privates” were irritated, a condition with which the child had dealt repeatedly. M.S. had
returned from a camping trip with Steele a day earlier, and she reported that Steele had
1 Steele’s motion contained other allegations of contempt, which were overruled by the magistrate and are not relevant to this appeal. 3
applied medication to the affected area. M.S. had been uncomfortable with Steele’s
application of the medicine. Malocu became concerned about sexual abuse.
{¶ 7} Malocu took M.S. to Children’s Hospital, where she was examined.
Malocu testified that M.S. refused to allow a male physician to examine her. Vaginal
irritation was documented, but no signs of sexual abuse were observed. Malocu talked with
a social worker, who in turn consulted with the medical professionals who had examined
M.S. The social worker decided that no referral of the case to Children Services (“CSB”) or
the police was warranted, and she informed Malocu of this conclusion. The social worker
also informed Malocu that she (Malocu) could report the incident to CSB or the police
herself if she wanted to do so. Malocu did report her concern to CSB and to the West
Carrollton Police Department.
{¶ 8} Steele had been scheduled to have visitation with M.S. from July 3 through
10, 2011. Because the alleged inappropriate touching was being investigated during that
time, Malocu did not permit Steele to exercise his visitation. Rather, Malocu took M.S. on
vacation to South Carolina.
{¶ 9} CSB closed the case within a couple of weeks as “unsubstantiated.”
Malocu received the notice of CSB’s determination in mid-July 2011, and she resumed the
normal parenting schedule with Steele shortly thereafter.
{¶ 10} It is unclear what, if any, action the police took.
{¶ 11} At the hearing before the magistrate, the testimony of Malocu, Steele, the
hospital’s social worker, and a clinical psychologist who counseled M.S. and her mother
after the investigation, was presented. They testified about Malocu’s suspicion of sexual 4
abuse, M.S.’s behavior and history of vaginal irritation, and the events that transpired during
the investigation. Steele also presented evidence that Malocu had not facilitated his
telephone contact with M.S.
{¶ 12} Based on this evidence, the magistrate concluded that Malocu had not acted
in good faith when she denied Steele’s visitation. In particular, the magistrate noted that 1)
none of the professionals who examined or talked with M.S. determined that there was any
evidence upon which to base Malocu’s subjective belief that abuse may have occurred, as
evidenced by their failure to refer the matter to CSB, 2) Malocu was “warned” by the social
worker and a police officer that she should not violate the court’s visitation order without
legal advice, 3) Malocu did not agree to or offer make-up parenting time to Steele, although
he raised the issue with her, 4) Malocu did not file a motion with the court in response to her
concerns, and 5) Malocu went on a vacation with M.S. during the disputed parenting time.
The trial court did not make any specific findings regarding Steele’s claims of interference
with telephone contact.
{¶ 13} The magistrate found Malocu in contempt for withholding visitation and
telephone contact, sentenced her to incarceration not to exceed five days, and ordered that
she could purge the contempt by allowing Steele an additional week of summer parenting
time in 2012 or 2013. The magistrate also ordered Malocu to pay “clerk administrative
fees” and $350 in attorney fees.
{¶ 14} Malocu filed objections to the magistrate’s decision. In her objections, she
argued that allowing M.S. to visit with her father while he was being investigated by CSB
and the West Carrollton police would have violated her duty to protect her child (citing R.C. 5
2919.22) and that, under the circumstances, her denial of visitation for one week was
reasonable. She also argued that she had not interfered with Steele’s telephone contact,
because most of his communications had been text messages sent to her (not M.S.) and the
one phone call had been while M.S. was at summer school.
{¶ 15} After “thoroughly and independently review[ing] the record,” the trial court
concluded that Malocu “acted in the best interest of [M.S.] when she denied parenting time
for a one week period while CSB and the West Carrollton Police Department were
conducting their respective investigations,” despite the fact that the allegations were
ultimately found to be unsubstantiated. The court also noted that M.S.’s counseling
sessions (which occurred after the alleged incident) revealed that she had anxiety about
visiting Steele.
{¶ 16} The court also found that Steele failed to prove that Malocu had interfered
with his telephone contact with M.S. Most of the communications were by text, and Steele
“admitted that it was not practical to expect a 7 year old child to respond to a text message;”
the one alleged instance of missed telephone contact was at a time when the child was
“likely in summer school.”
{¶ 17} The trial court denied Steele’s motion for a finding of contempt “in its
entirety” and vacated the awards of administrative and attorney fees.
{¶ 18} Steele appeals from the trial court’s judgment, raising one assignment of
error.
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[Cite as Steele v. Steele, 2013-Ohio-3655.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CHARLES R. STEELE :
Plaintiff-Appellant : C.A. CASE NO. 25713
v. : T.C. NO. 05DR864
BOBBIE JO STEELE nka MALOCU : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellee :
:
..........
OPINION
Rendered on the 23rd day of August , 2013.
H. STEVEN HOBBS, Atty. Reg. No. 0018453, 119 North Commerce Street, Lewisburg, Ohio 45338 Attorney for Plaintiff-Appellant
BRIAN A. SOMMERS, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Defendant-Appellee
FROELICH, J.
{¶ 1} Charles Steele appeals from a judgment of the Montgomery County 2
Court of Common Pleas, Domestic Relations Division, which vacated a magistrate’s finding
that his former wife Bobby Jo Steele (n.k.a. Malocu) had been in contempt for interfering
with his parenting time and his telephone contact with their daughter.
{¶ 2} For the reasons that follow, the judgment of the trial court will be
affirmed.
{¶ 3} Steele and Malocu were divorced in 2007 and entered into a shared
parenting plan with respect to their daughter, M.S. In 2010, the shared parenting plan was
terminated, and Malocu was designated as the residential parent; Steele continued to have
expanded visitation with M.S.
{¶ 4} In July 2011, Steele filed a motion to show cause why Malocu should not
be held in contempt for denial of parenting time; in October 2011, he filed an amended
motion in which he asserted that Malocu had also interfered with his telephone contact with
M.S.1 The alleged violations occurred during July 2011, shortly after an incident which led
Malocu to suspect and to initiate investigations of sexual abuse of M.S. by Steele.
{¶ 5} Steele’s motion to show cause was referred to a magistrate, who conducted
a hearing on April 6 and May 15, 2012. The evidence presented at the hearing established
the following.
{¶ 6} In late June 2011, M.S., age 6 or 7, reported to her mother that her
“privates” were irritated, a condition with which the child had dealt repeatedly. M.S. had
returned from a camping trip with Steele a day earlier, and she reported that Steele had
1 Steele’s motion contained other allegations of contempt, which were overruled by the magistrate and are not relevant to this appeal. 3
applied medication to the affected area. M.S. had been uncomfortable with Steele’s
application of the medicine. Malocu became concerned about sexual abuse.
{¶ 7} Malocu took M.S. to Children’s Hospital, where she was examined.
Malocu testified that M.S. refused to allow a male physician to examine her. Vaginal
irritation was documented, but no signs of sexual abuse were observed. Malocu talked with
a social worker, who in turn consulted with the medical professionals who had examined
M.S. The social worker decided that no referral of the case to Children Services (“CSB”) or
the police was warranted, and she informed Malocu of this conclusion. The social worker
also informed Malocu that she (Malocu) could report the incident to CSB or the police
herself if she wanted to do so. Malocu did report her concern to CSB and to the West
Carrollton Police Department.
{¶ 8} Steele had been scheduled to have visitation with M.S. from July 3 through
10, 2011. Because the alleged inappropriate touching was being investigated during that
time, Malocu did not permit Steele to exercise his visitation. Rather, Malocu took M.S. on
vacation to South Carolina.
{¶ 9} CSB closed the case within a couple of weeks as “unsubstantiated.”
Malocu received the notice of CSB’s determination in mid-July 2011, and she resumed the
normal parenting schedule with Steele shortly thereafter.
{¶ 10} It is unclear what, if any, action the police took.
{¶ 11} At the hearing before the magistrate, the testimony of Malocu, Steele, the
hospital’s social worker, and a clinical psychologist who counseled M.S. and her mother
after the investigation, was presented. They testified about Malocu’s suspicion of sexual 4
abuse, M.S.’s behavior and history of vaginal irritation, and the events that transpired during
the investigation. Steele also presented evidence that Malocu had not facilitated his
telephone contact with M.S.
{¶ 12} Based on this evidence, the magistrate concluded that Malocu had not acted
in good faith when she denied Steele’s visitation. In particular, the magistrate noted that 1)
none of the professionals who examined or talked with M.S. determined that there was any
evidence upon which to base Malocu’s subjective belief that abuse may have occurred, as
evidenced by their failure to refer the matter to CSB, 2) Malocu was “warned” by the social
worker and a police officer that she should not violate the court’s visitation order without
legal advice, 3) Malocu did not agree to or offer make-up parenting time to Steele, although
he raised the issue with her, 4) Malocu did not file a motion with the court in response to her
concerns, and 5) Malocu went on a vacation with M.S. during the disputed parenting time.
The trial court did not make any specific findings regarding Steele’s claims of interference
with telephone contact.
{¶ 13} The magistrate found Malocu in contempt for withholding visitation and
telephone contact, sentenced her to incarceration not to exceed five days, and ordered that
she could purge the contempt by allowing Steele an additional week of summer parenting
time in 2012 or 2013. The magistrate also ordered Malocu to pay “clerk administrative
fees” and $350 in attorney fees.
{¶ 14} Malocu filed objections to the magistrate’s decision. In her objections, she
argued that allowing M.S. to visit with her father while he was being investigated by CSB
and the West Carrollton police would have violated her duty to protect her child (citing R.C. 5
2919.22) and that, under the circumstances, her denial of visitation for one week was
reasonable. She also argued that she had not interfered with Steele’s telephone contact,
because most of his communications had been text messages sent to her (not M.S.) and the
one phone call had been while M.S. was at summer school.
{¶ 15} After “thoroughly and independently review[ing] the record,” the trial court
concluded that Malocu “acted in the best interest of [M.S.] when she denied parenting time
for a one week period while CSB and the West Carrollton Police Department were
conducting their respective investigations,” despite the fact that the allegations were
ultimately found to be unsubstantiated. The court also noted that M.S.’s counseling
sessions (which occurred after the alleged incident) revealed that she had anxiety about
visiting Steele.
{¶ 16} The court also found that Steele failed to prove that Malocu had interfered
with his telephone contact with M.S. Most of the communications were by text, and Steele
“admitted that it was not practical to expect a 7 year old child to respond to a text message;”
the one alleged instance of missed telephone contact was at a time when the child was
“likely in summer school.”
{¶ 17} The trial court denied Steele’s motion for a finding of contempt “in its
entirety” and vacated the awards of administrative and attorney fees.
{¶ 18} Steele appeals from the trial court’s judgment, raising one assignment of
error.
THE TRIAL COURT ERRED BY DISMISSING APPELLANT’S
CONTEMPT MOTION IN [ITS] ENTIRETY. [Cite as Steele v. Steele, 2013-Ohio-3655.] {¶ 19} Steele contends that the trial court “disregard[ed] key testimony” in finding
that Malocu had an affirmative defense to the finding of contempt and in rejecting the
conclusions of the magistrate, who “had the better opportunity to weigh the credibility of
each and every witness who testified.” Steele asserts that Malocu denied parenting time
because she wanted to take M.S. to South Carolina and that, in removing M.S. from the area,
Malocu delayed the investigations by precluding access of CSB and the police to the child.
Steele also argues that the trial court should not have relied on M.S.’s counselor’s
conclusion that M.S. had anxiety about visiting her father, because the counseling did not
begin until after the investigation was closed, and “[t]his bootstrap analysis” did not
demonstrate sound reasoning.
{¶ 20} Steele, as the movant in the motion to show cause, had the obligation to
prove by clear and convincing evidence that Malocu was in contempt by failing to comply
with the court’s orders. Rock v. Rock, 2d Dist. Montgomery No. 25311, 2013-Ohio-390, ¶
14; Jenkins v. Jenkins, 2d Dist. Clark No. 2011 CA 86, 2012-Ohio-4182, ¶ 12. A
residential parent may have a defense in a contempt proceeding for interference with
parenting time if he or she has a reasonable, good faith belief that he or she must deny
visitation to protect the safety of the child. See, e.g., Hensley v. Hensley, 6th Dist. Erie
No. E-08-026, 2009-Ohio-1738, ¶ 22; McClead v. McClead, 4th Dist. Washington No.
06CA67, 2007-Ohio-4624, ¶ 33; Buchanan v. Buchanan, 12th Dist. Clermont Nos.
CA98-10-085, CA98-10-091, 1993 WL 619049, * 2 (Aug. 16, 1999).
{¶ 21} Malocu does not dispute that Steele was entitled to five weeks of visitation
with M.S. in the summer of 2011, that one of those weeks was scheduled for the first week
of July, and that she refused to allow that visitation to occur. She argues, however, that she 7
should not be held in contempt because, in light of her concerns, which were still being
investigated at that time, she was justified in withholding visitation.
{¶ 22} In accordance with Civ.R. 53, the trial court must conduct an independent
review of the facts and conclusions contained in the magistrate’s report and enter its own
judgment. Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996).
Thus, the trial court's standard of review of a magistrate’s decision is de novo.
{¶ 23} An appellate court reviews the trial court’s decision to adopt a magistrate’s
decision under an abuse of discretion standard. Proctor v. Proctor, 48 Ohio App.3d 55,
60-61, 548 N.E.2d 287 ( 3rd Dist.1988). An abuse of discretion means that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983). Presumptions of validity and deference to a trial
court as an independent fact-finder are embodied in the abuse of discretion standard.
Juergens v. Strileckyj, 2d Dist. Clark No. 2010 CA 36, 2010-Ohio-5159, ¶ 21. When
applying the abuse of discretion standard, an appellate court may not merely substitute its
judgment for that of the trial court. Berk v. Mathews, 53 Ohio St.3d 161, 169, 559 N.E.2d
1301 (1990); Randall v. Randall, 2d Dist. Darke No. 1739, 2009-Ohio-2070, ¶ 8-10.
{¶ 24} Conflicting evidence as to the reasonableness of Malocu’s actions was
presented at the hearing. Some of the evidence suggested that Malocu quickly jumped to
the conclusion that Steele’s applying medicine to the child’s genitals (the use of which had
previously been discussed with a doctor) was sexually abusive, considering that M.S. was
known to have a problem with irritation in this area. The evidence also showed that Malocu
was initially reluctant to accept the opinions of the medical professionals who examined 8
M.S., who failed to find physical evidence indicating abuse. On the other hand, Malocu
testified that M.S. had been very upset and physically uncomfortable after her father’s
application of medicine to her genitals and had refused to allow a male doctor to examine
her at the hospital. She also testified that M.S. did not need cream at Malocu’s house, and
that M.S. was able to apply her own cream if it was needed.
{¶ 25} Suspicions of child sexual abuse evoke strong emotions and reactions, and
the trial court apparently concluded that Malocu’s suspicions justified her short-term refusal
to allow visitation, while the matter was being investigated. The magistrate’s concerns
about Malocu’s motives were not unfounded, but the trial court was entitled to weigh the
evidence independently when it conducted its review of the magistrate’s findings. We
cannot conclude that the trial court abused its discretion in finding that Malocu was not in
contempt for suspending visitation while the matter was investigated.
{¶ 26} Likewise, viewing the evidence regarding the alleged interference with
telephone contact, including texting, the trial court could have reasonably concluded that
Malocu’s conduct with respect to the telephone communications, including a single missed
phone call (during which the child may have been at summer school) and Steele’s reliance
on texting, which may not have been a reasonable manner of communicating with a
seven-year-old child, had not justified a finding of contempt. The trial court did not abuse
its discretion in reaching the conclusions that it did.
{¶ 27} The assignment of error is overruled
{¶ 28} The judgment of the trial court will be affirmed.
.......... 9
FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
H. Steven Hobbs Brian A. Sommers Hon. Denise L. Cross