Opinion
E-21-055
06-30-2023
In re D.T.
H.T., Pro se.
Trial Court No. 2011-JB-074
H.T., Pro se.
DECISION AND JUDGMENT
ZMUDA, J.
{¶ 1} Appellant, H.T., appeals from the judgment of the Erie County Court of Common Pleas, Juvenile Division, denying appellant's motion for contempt and motion for custody of D.J.B.T., and awarding custody of D.J.B.T. to appellee, J.B. Finding no error, we affirm.
I. Background and Procedural History
{¶ 2} Appellant and appellee are parents of D.J.B.T. (d.o.b. 10/25/05). The parties were never married. Appellant's paternity was established by administrative order on August 8, 2011, and appellant filed a complaint for custody on September 25, 2011. The matter was resolved by a shared parenting decree, filed by the parties on September 27, 2011. The decree designated both appellant and appellee as "residential parent" and split parenting time equally, with a schedule to be used if appellant and appellee disagreed. In October 2011, D.J.B.T.'s name was legally changed, giving him appellant's surname.
{¶ 3} On May 23, 2016, appellant filed a motion for change of custody, which the trial court construed as seeking a modification of a custody order pursuant to R.C. 3109.04(E)(1)(a).
{¶ 4} On November 2, 2016, appellant filed a motion for contempt, alleging appellee interfered with his parenting time.
{¶ 5} On December 5, 2016, the trial court conducted an in camera hearing with D.J.B.T. before a magistrate.
{¶ 6} On January 30, 2017, the trial court held a hearing/trial on the motion for contempt and for change of custody before a magistrate.
{¶ 7} On June 5, 2017, the trial court held continued hearing/trial on the motion for change of custody before a magistrate.
{¶ 8} On August 14, 2017, the magistrate's rulings on the pending motions were filed with the court. As to the motion for contempt, the magistrate's decision recommended denial of the motion, finding a lack of evidence that appellee willfully violated the order regarding parenting time. Appellee acknowledged she violated the order by keeping D.J.B.T., but indicated she mistakenly believed that Halloween was a holiday.
{¶ 9} As to custody, the magistrate's decision recommended terminating the shared parenting plan entered in 2011, and naming appellee the sole custodian of D.J.B.T., finding an award of custody to appellee was in the best interests of the child. Appellant would be permitted visitation according the parties' agreement, or pursuant to the Standard Schedule for Parenting Time. The decision further directed appellee to submit forms for purposes of calculating an award of child support, "should [appellee] be so inclined[.]"
{¶ 10} The trial court granted appellant's motion for the recording of proceedings on August 18, 2017, as requested under Erie Juv.R.11.4. Pursuant to the local rule, the recording could be used "for the sole purpose of filing objections to a Magistrate's Decision." Appellant expressly requested the recording of proceedings for the hearings on January 30 and June 5, 2017, and did not request a recording of the in-camera hearing with D.J.B.T. held December 5, 2016.
{¶ 11} On August 28, 2017, appellant filed his objections to the magistrate's decision and motion to set aside, along with a "Transcript of Trial," purporting to be the record of proceedings on January 30 and June 5, 2017. Appellant's objections challenged several of the magistrate's factual findings.
{¶ 12} Appellant challenged the magistrate's narrative, indicating appellant isolated himself from his family and eschewed friendships, as lacking a factual basis. Appellant provided details of his relationships with family and friends. Appellant also argued that the magistrate failed to consider D.J.B.T.'s wishes in making a determination of the best interests of the child. Appellant challenged some of the magistrate's factual findings as mischaracterizations of the evidence. He specifically argued he was the reason for D.J.B.T.'s academic achievement, that he had no communication issues with appellee and never took D.J.B.T. out of state without appellee's knowledge, and that he understood a child's need for play in proportion to academics. Appellant also challenged the magistrate's factual findings as incomplete, providing his own proposed factual findings, and disputed the finding that appellee facilitated a relationship between D.J.B.T. and his paternal relatives or that Sandusky schools would sufficiently prepare D.J.B.T. for a potential ivy league education after high school.
{¶ 13} Appellee filed no response to the objections or appellant's "Transcript of Trial," and there was no further activity in the case until late 2021.
{¶ 14} On November 8, 2021, the trial court entered judgment on appellant's objections to the magistrate's decision. As an initial matter, the trial court noted that appellant's "Transcript of Trial" contained no certification of a court reporter and concluded appellant, himself, prepared the transcript. The trial court did not strike the "Transcript of Trial" for lack of certification, but instead, considered this filing and compared it to the recordings of the hearings.
{¶ 15} In a detailed decision, the trial court indicated it reviewed the "Transcript of Trial," the recording of the proceedings on January 30 and June 5, 2017, and the in-camera interview of D.J.B.T. on December 5, 2016, and determined appellant's objections lacked merit. The trial court addressed appellant's objections in turn and found the record supported the magistrate's decision. Thus, after an independent review, the trial court denied appellant's motion for contempt, overruled appellant's objections, terminated the parties' shared parenting plan, and designated appellee as the residential parent of D.J.B.T. The trial court further ordered appellee to "tender a completed IV-D application (JFS Form 7076) to Erie County CSEA for child support services within 10 days of the filing of this Judgment Entry."
{¶ 16} Appellant filed a notice of appeal from this judgment, through counsel, on December 7, 2021. Appellant requested a transcript of the hearings in the praecipe, but failed to complete the praecipe in accordance with 6th Dist.Loc.App.R. 3(B), omitting the "court reporter's certification." We ordered appellant to file an amended praecipe with the certification, but no amended praecipe was filed.
{¶ 17} On December 21, 2021, we determined the November 8, 2021 judgment was not a final order, based on the lack of determination regarding child support. We remanded the matter for a final judgment addressing child support.
{¶ 18} On January 14, 2022, the trial court held an evidentiary hearing to determine an award of child support. On January 26, 2022, the trial court entered its award of child support in favor of appellee.
{¶ 19} On February 1, 2022, we noted entry of the January 26, 2022 order, and granted appellant leave to file an amended notice of appeal within 14 days. Appellant did not file an amended notice of appeal and does not challenge the award of child support on appeal.
{¶ 20} On March 30, 2022, the clerk filed the record, and issued a notice to appellant's counsel pursuant to App.R. 11(B), identifying the record as:
INCLUDING: Original Trial Court Documents and JEs [No transcripts submitted at time of filing record, but exhibits were submitted: Child Support Hearing - January 14, 2022 (Mother's Exhibits 1-8 & Father's Exhibits A-D), Evidentiary Hearing - January 30, 2017 & June 5, 2017 (Mother Exhibits A-D & Father's Exhibits 1-19)].[Emphasis sic.].
{¶ 21} On April 18, 2022, appellant requested an extension to file his appellant brief, and also an extension to supplement the record with transcripts, including the transcript for the child support hearing. We denied the motion on August 26, 2022.
{¶ 22} On September 16, 2022, appellant filed a second request for extension, indicating his counsel had withdrawn from the case. On October 3, 2022, we granted appellant an extension to file his appellant's brief.
{¶ 23} On March 14, 2023, after counsel failed to file a motion to withdraw in the case, we sua sponte entered an order, removing appellant's counsel, with appellant proceeding pro se in the matter.
{¶ 24} On March 15, 2023, appellant filed his appellant's brief.
{¶ 25} Appellee has not appeared or filed a brief in this matter.
II. Assignments of Error
{¶ 26} Appellant assigns numerous issues as error, relative to the November 8, 2021 judgment, as follows:
1.The trial court erred when it did not allow the reviewing court access to the transcripts of the hearings in front of Magistrate McGory.
2.The trial court erred by not allowing the reviewing court access to the transcript of the hearing on January 14, 2022 in front of Judge DeLamatre.
3.The trial court erred when it failed to provide the reviewing court with a transcript of D.J.B.T.'s in camera interview.
4.The trial court erred when it did not allow the reviewing court access to the Appellant's Trial Brief and Appellant's written Declaration which were filed as part of the trial documents.
5.The trial court erred when it failed to consider the wishes of D.J.B.T.
6.The court erred in holding that sole custody with Appellee was in D.J.B.T.'s best interest.
7.The trial court erred when it failed to find Appellee in contempt of court when she willfully kept D.J.B.T. from Appellant for days without agreement of an alternative to the court ordered schedule, and the facts of the matter were not in dispute by any party.
8.The trial court erred when it waited more than four years to provide a judgment entry on the case.
III. Analysis
{¶ 27} For ease of discussion, we address appellant's assignments of error out of order, addressing the procedural issues first. As to procedural issues, appellant challenges the delay in the trial court between the filing of his objections and the trial court's decision, and also attributes the lack of trial transcripts in the appellate record as trial court error.
A. The trial court's delay was not actionable under Sup.R. 40, as the Rules of Superintendence created no rights in appellant.
{¶ 28} In his eighth assignment of error, appellant argues that the trial court violated a duty to timely rule on his objections to the magistrate's decision, requiring dismissal of the case. In support he cites Sup.R. 40(A)(1), which provides:
Each trial judge shall review, or cause to be reviewed, all cases assigned to the judge. Cases that have been on the docket for six months without any proceedings taken in the case, except cases awaiting trial assignment, shall be dismissed, after notice to counsel of record, for want of prosecution, unless good cause be shown to the contrary.
{¶ 29} The error based on a delay in rendering judgment is not clearly articulated in appellant's brief, as he appears to suggest the trial court should have dismissed the entire case and does not raise issues relative to the decision challenged on appeal. Despite this lack of clarity, we have previously addressed Sup.R. 40 in similar circumstances, and found Sup.R. 40 created no rights in litigants.
{¶ 30} In State ex rel. Newman v. Gretick, 155 Ohio App.3d 696, 2004-Ohio-222, 803 N.E.2d 883 (6th Dist), the relator sought a writ of procedendo, relying on Sup.R. 40 as authority to compel the respondent judge to proceed to judgment in her action for divorce. Id. at ¶ 1. We noted Ohio Supreme Court precedent that held "the Ohio Rules of Superintendence do not create rights in litigants for the purpose of extraordinary writs." Id. at ¶ 5. We determined in Gretick that "reliance on Sup.R. 40 for the creation of such a right is misplaced." Id. Instead, we found a writ of procedendo was appropriate based solely on the lengthy delay and failure to issue a judgment. Id.
{¶ 31} In the present case, considering the delay between appellant's objections and the trial court's judgment, four years later, appellant could have filed a writ of procedendo, which "is appropriate when a court has either refused to render a judgment or has unnecessarily delayed in proceeding to judgment." Gretick at ¶ 5, citing State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996). "In fact, an 'inferior court's refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.'" State ex rel. Rodak v. Betleski, 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d 703, ¶ 16, quoting State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994).
{¶ 32} Appellant did not pursue a writ of procedendo, and the record fails to demonstrate any attempt, by appellant, to move the case along during the four years he awaited a decision on his objections. Instead, the record demonstrates a lengthy period of inaction, and contrary to appellant's claim on appeal, appellant had no right to a dismissal of the case in the trial court based on Sup.R. 40.
{¶ 33} Accordingly, appellant's eighth assignment of error is not well-taken.
B. An appellant, and not the trial court, bears responsibility for ensuring transcripts are included in the appellate record.
{¶ 34} In his first, second, third, and fourth assignments of error, appellant argues the trial court erred in limiting or preventing "the reviewing court's" access to transcripts and documents proffered by appellant at trial. Appellant appears to argue that the trial court failed to include the transcript of hearings in transferring the record pursuant to App.R. 10. The other materials, claimed missing from the record by appellant, are included in the record on appeal. The exhibits admitted at the evidentiary and child support hearings were included with the record, and appellant's filings, captioned "Plaintiffs Trial Brief and "Declaration of Heath Tutlow," were filed in the trial court on January 23, 2017 and are part of the record on appeal. Therefore, we focus on the trial transcripts as the only item - referenced by appellant - and not included in the appellate record.
{¶ 35} The record on appeal, as provided by App.R. 9, consists of "[t]he original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court[.]" App.R. 9(A)(1). The record filed in the present case included the trial court filings and exhibits from the hearings, with a note that there were no official transcripts submitted in the trial court.
{¶ 36} Appellant bears the duty of ensuring "that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App.R. 9(B)(6)." App.R. 9(B)(1). As noted, the record contained appellant's trial brief and declaration, filed by appellant on January 23, 2017, and also the exhibits, admitted at the time of hearing. Appellant's "Transcript of Trial," filed August 28, 2017, is also in the record. There were no official transcripts or affidavit filed in the record, however, as required by Juv.R. 40(D)(3)(b)(iii) for objection to the magistrate's factual findings.
{¶ 37} The record, here, demonstrates the trial court did not have an official court reporter, but instead, used an audio-recording system to keep the official record. However, the trial court granted appellant's motion to access some of the recordings in 2017, and it appears he obtained the recordings for the hearings in January and June for filing objections to the magistrate's decision. Appellant filed his "Transcript of Trial" which the trial court ostensibly accepted as appellant's statement of the evidence.
While the trial court commented and questioned the accuracy of the "Transcript of Trial" filed by appellant, the court did not strike the filing and reviewed it, along with the court's independent review of the official record, in ruling on the objections.
{¶ 38} At the time he filed his notice of appeal and praecipe on December 7, 2021, appellant indicated only that he had not yet secured a court reporter, with no assertion he filed a motion with the trial court, which the trial court denied. Appellant's praecipe, filed with his notice of appeal, lacked the "court reporter's certification" required by 6th Dist.Loc.R. 3(B). Noting the deficiency, we ordered appellant to file an amended praecipe with a "court reporter's certification." No amended praecipe was filed, and on March 30, 2022, the record was filed without transcripts. The record did include the hearing exhibits for the evidentiary hearings of January 30, 2017 and June 5, 2017 and the child support hearing on January 14, 2022. Appellant's "Transcript of Trial" is also part of the record on appeal.
{¶ 39} On April 18, 2022, appellant requested an extension to supplement the record with transcripts, which we denied. On appeal, we are limited to reviewing the record that was before the trial court, precluding appellant's attempt to supplement the record with transcripts never provided to the trial court. See Kormanik, Guardian v. HSBC Mtge, 10th Dist. Franklin No. 12AP-18, 2012-Ohio-5975, ¶ 13; Halliwell v. Halliwell, 6th Dist. Erie No. E-19-057, 2020-Ohio-5548, ¶ 12, citing State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995).
{¶ 40} Appellant had the burden of providing the transcript to the trial court along with his objections. Halliwell at ¶ 10, citing Civ.R. 53(D)(3)(b)(iii); see also Juv.R. 40(D)(3)(b)(iii). It is also an appellant's burden of ensuring a transcript is included in the record on appeal, consistent with the procedural rules. Baker v. Tarsha, 6th Dist. Lucas No. L-04-1040, 2004-Ohio-6315, ¶ 5, citing App.R. 9(B) and App.R. 10(A); Burrell v. Kassicieh, 128 Ohio App.3d 226, 232, 714 N.E.2d 442 (3rd Dist. 1998), citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Thus, it is not a trial court's error, should transcripts fail to be included in the record.
{¶ 41} Accordingly, considering it was appellant's obligation to ensure the transcripts were included in the record, and other documents are included in the record, we find no error by the trial court and appellant's first, second, third, and fourth assignments of error are not well-taken.
{¶ 42} We next address the substantive issues raised by appellant in his remaining assignments of error.
C. The trial court did not abuse its discretion in determining sole custody with appellee was in the best interests of D.J.B.T.
{¶ 43} In his fifth and sixth assignments of error, appellant argues the trial court failed to consider D.J.B.T.'s wishes and erred in determining an award of custody to appellee was in D.J.B.T.'s best interests.
{¶ 44} We review the trial court's decision regarding an award of child custody for an abuse of discretion. A.L. v. K.T., 6th Dist. Fulton Nos. F-15-002, F-15-003, 2016-Ohio-2865, ¶ 10, citing In re Brown, 142 Ohio App.3d 193, 198, 755 N.E.2d 365 (12th Dist.2001). Applying this standard, we will not reverse the judgment of the trial court for an error of law; we must also determine the judgment resulted from an unreasonable, arbitrary, or unconscionable attitude by the trial court. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 45} A trial court's broad discretion "must be guided by the language set forth in R.C. 3109.04." Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988), citing Baxter v. Baxter, 27 Ohio St.2d 168, 271 N.E.2d 873 (1971) (additional citations omitted.). Pertinent to this appeal, "in order to terminate a shared parenting plan, the court must follow the framework of R.C. 3109.04(E)(2)(c)." J.H. v. J.F., 6th Dist. Lucas No. L-20-1077, 2021-Ohio-24, ¶ 29, citing Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396, ¶ 12. R.C. 3109.04(E)(2)(c) provides,
The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
{¶ 46} Once a shared parenting decree has been terminated, "the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of [R.C. 3109.04] as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made." Under R.C. 3109.04(B)(1), a court, in allocating the parental rights and responsibilities for the care of the children, "shall take into account that which would be in the best interest of the children."
{¶ 47} In determining the best interests of the child, a court must consider the statutory factors in R.C. 3109.04(F)(1), as follows:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(d) The child's adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of 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 child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented 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; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any 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 either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) 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;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.R.C. 3109.04(F)(1)(a)-(j). The trial court must consider the statutory factors, but is not required to address each factor in the judgment entry, "so long as the judgment entry is supported by some competent, credible evidence." Meyers-Decator at ¶ 31, citing Bunten v. Bunten, 126 Ohio App.3d 443, 447, 710 N.E.2d 757 (3d Dist.1998), citing Masitto v. Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d 857 (1986).
{¶ 48} In this case, the parties appeared to agree that shared parenting is not in the best interests of the child, and appellant does not challenge this finding on appeal. Rather, the issue on appeal is whether the trial court considered the statutory factors in determining that a change of custody was in the best interests of D.J.B.T. Appellant argues that the trial court failed to consider D.J.B.T.'s wishes, and that the facts, specifically the superior schools in appellant's school district and the amount of time D.J.B.T. (a gifted child) spent with appellant (a similarly gifted individual) prior to the change of custody, weighed in favor of an award of custody to appellant rather than appellee. In support, appellant relies, in part, on the transcript of the in-camera hearing with D.J.B.T., not part of the record on appeal.
{¶ 49} As to D.J.B.T.'s in-camera hearing, the lack of a transcript forecloses a consideration of this fact-based challenge to the trial court's determination. "No transcript of the in-camera interview by the court was included in the record, so we must presume that the [child's] disclosures supported the court's determination." Abbott v. Abbott, 6th Dist. Fulton No. F-06-020, 2007-Ohio-5308, ¶ 25. While the trial court indicated review of the recording in ruling on the objections, we have no transcript of the in-camera hearing on appeal. "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶ 50} Appellant's fifth assignment of error, accordingly, is not well-taken.
{¶ 51} As to the remaining challenge, appellant again asserts a fact-based challenge, arguing D.J.B.T. resided primarily with him and would benefit from the superior schools in appellant's school district, as well as appellant's guidance of D.J.B.T. in his studies. The trial court specifically addressed these issues, including D.J.B.T.'s wishes, noting the wishes of the child "are not controlling."
{¶ 52} The magistrate acknowledged D.J.B.T.'s desire to live with appellant, but after addressing each of the statutory factors, found the interactions with family and others more favorable at appellee's home, noting appellant did not maintain friendships and was estranged from his family, with D.J.B.T.'s contact with appellant's family facilitated by appellee. Additionally, while the schools might be better at appellant's home, the magistrate concluded D.J.B.T. was receiving a good education in his current school system, with outstanding grades, and had the added benefit of extracurricular activities and experiences at appellee's home, noting "virtually all of D.J.B.T.'s time in [father's place of residence] is spent with little interaction with others."
{¶ 53} In adopting the magistrate's decision, the trial court noted:
In supplement to the findings in the Magistrate's Decision, the Court finds that [appellant] is correct that Avon Schools are ranked statistically better than Sandusky Schools, but [D.J.B.T.] had already completed over 5 years of school at Sandusky City Schools without any problems. [D.J.B.T.] has access to education for gifted children in his current school placement and is doing well. As to the child's wishes, the Court would not have found the same as the Magistrate. After review of the in camera interview the Court would find the child not sufficiently mature enough to express his
wishes. Unlike the Magistrate, the Court would not have considered [D.J.B.T.'s] wishes. For instance, despite being gifted in math, [D.J.B.T.] did not know his Mother or Father's actual street address despite those addresses being the same for over 5 years. He also was unable to identify any friends at [appellant's] home or any of the numerous activities that [appellant] alleges he involves him in, despite prompting to do so. Ultimately, this difference is without effect because the outcome remains the same whether his wishes are considered or not. This is because granting [appellant's] request would mean [D.J.B.T.] being isolated from other family based on the evidence presented at trial. In fact, granting [appellant's] request would apparently result in [D.J.B.T.] being isolated from [appellant's] own family because [appellant] is estranged from his family according to the evidence presented.
{¶ 54} Having considered the record on appeal, we find the trial court did not abuse its discretion in awarding custody to appellee. While appellant stresses the wishes of D.J.B.T. and the educational opportunities available in appellant's school district, it is clear the trial court carefully considered all the factors under R.C. 3109.04(E), and not just the issue of D.J.B.T.'s education. The trial court's findings, moreover, are supported by the record.
{¶ 55} Appellant's sixth assignment of error, therefore, is not well-taken.
D. The record supported the trial court's denial of the motion for contempt.
{¶ 56} In his seventh assignment of error, appellant argues the trial court erred in not finding appellee in contempt of court "when she willfully kept [D.T.] from appellant." Appellant argues that "the facts of contempt were not in dispute by any party." The trial court declined to hold appellee in contempt, finding her conduct resulted from an honest mistake regarding whether Halloween was a holiday under the parenting plan.
{¶ 57} We review a juvenile court's decision in a civil-contempt proceeding is for an abuse of discretion. In re M.O.E.W., 6th Dist. Ottawa No. OT-18-030, 2019-Ohio- 5364, ¶ 9, citing State ex rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013- Ohio-5614, 3 N.E.3d 179, ¶ 21. An abuse of discretion "connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." [Citation omitted] Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 58} Appellant sought to hold appellee in contempt of court pursuant to R.C. 2705.031(B)(2), which provides:
Any parent who is granted parenting time rights under a parenting time order or decree issued pursuant to section 3109.051 or 3109.12 of the Revised Code, any person who is granted visitation rights under a visitation order or decree issued pursuant to section 3109.051, 3109.11, or 3109.12 of
the Revised Code or pursuant to any other provision of the Revised Code, or any other person who is subject to any parenting time or visitation order or decree, may initiate a contempt action for a failure to comply with, or an interference with, the order or decree.
{¶ 59} "Contempt of court is defined as disobedience of an order of a court." In re M.O.E.W. at ¶ 11, quoting Windham Bank v. Tomaszcyzyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus. Furthermore, "since the primary interest involved in a contempt proceeding is the authority and proper functioning of the court, great reliance should be placed upon the discretion of the trial judge." Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988), citing United States v. United Mine Workers of America, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947).
{¶ 60} The moving party has the burden of demonstrating, by clear and convincing evidence, that a person is guilty of contempt of court. Id. at ¶ 10, citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980) (additional citations omitted.). The moving party, however, need not prove a willful or intentional violation of a court order as a prerequisite for finding contempt or imposing sanctions, as a court has authority to "punish the disobedience of its orders with contempt proceedings." Id. at ¶ 13, quoting Zakany v. Kakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984), syllabus.
{¶ 61} In addition to the magistrate's findings of fact, the record includes appellant's statement of the evidence within his "Transcript of Trial" and the exhibits admitted by both parties at hearing. Based on this record, appellant arrived to pick up D.T. on the evening of October 31, 2016, but appellee had already taken D.T. trick-or-treating. Appellant left without D.T., and alleged no other violation of the shared parenting plan by appellee, indicating instead that D.T. spent more than half the time with appellant despite the 50/50 split within the plan. Appellant's Exhibit 3 meticulously tracked the number of hours spent with each parent over several years, with appellant's calculation showing the following split:
| With Appellant | With Appellee |
| 2016 61% | 39% |
| 2015 58% | 42% |
| 2014 56% | 44% |
| 2013 55% | 45% |
| 2012 57% | 43% |
| 2011 58% | 42% |
{¶ 62} In addressing the matter, the magistrate found that there was some uncertainty where October 31 fit in to the four-week rotation, but resolved that uncertainty in appellant's favor. However, the magistrate also noted that appellant acknowledged appellee otherwise abided by the shared parenting plan, with "no evidence that [appellee] regularly denied [appellant's parenting time[.]" Rather, appellee testified that she made a mistake, and that appellant did not ask for another day to make up for his lost time. Based on these facts, the magistrate recommended the motion for contempt be denied.
{¶ 63} Considering the record, we do not find the trial court abused its discretion in declining to find appellee in contempt of court for interfering with appellant's parenting time pursuant to the shared parenting agreement. We therefore find appellant's seventh assignment of error not well-taken.
IV. Conclusion
{¶ 64} Based on the foregoing, we affirm the judgment of the Erie County Court of Common Pleas, Juvenile Division. Appellant is ordered to pay the costs of the appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J., Myron C. Duhart, P.J., Charles E. Sulek, J. Concur.
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/.