Opinion
CASE NO. 14 CO 0026
06-13-2016
LARA LYNN LIPP PLAINTIFF-APPELLEE v. CARL L. LIPP DEFENDANT-APPELLANT
APPEARANCES: For Plaintiff-Appellee: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44113 For Defendant-Appellant: Atty. Dominic A. Frank Betras, Kopp & Harshman, LLC 1717 Lisbon Street East Liverpool, Ohio 43920
OPINION CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2008 DR 00248 JUDGMENT: Affirmed. APPEARANCES: For Plaintiff-Appellee: Atty. Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44113 For Defendant-Appellant: Atty. Dominic A. Frank
Betras, Kopp & Harshman, LLC
1717 Lisbon Street
East Liverpool, Ohio 43920 JUDGES: Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro WAITE, J.
{¶1} This appeal was filed from the trial court's orders regarding a number of motions relating to the parties' minor child. Carl Lee Lipp ("Appellant") and Lara Lynn Lipp nka Lara Lynn Zucco ("Appellee") were married on August 4, 2001 and were subsequently divorced pursuant to a decree dated May 21, 2010. The parties have one minor child whose date of birth is October 8, 2007. The parties have a contentious history. In the case sub judice, Appellant father appeals the trial court's denial of his motion to reallocate parental rights, order shared parenting, and motion for contempt against Appellee mother.
{¶2} Based on a thorough review of the extensive record in this matter, including transcripts from a hearing on the merits held over a two-day period, as well as multiple exhibits admitted into evidence relating to all matters, the trial court did not abuse its discretion and all three of Appellant's assignments of error are without merit and are overruled. The decision of the trial court is affirmed.
Factual History
{¶3} The parties were married on August 4, 2001. They have one minor child, a son born on October 8, 2007. A final divorce decree was entered on May 21, 2010. Pursuant to that decree, Appellee was designated residential parent and Appellant was given expanded standard visitation of every other weekend and overnight visitation each Wednesday to Thursday. The court's standard local order of companionship controlled parenting time on holidays, summer vacation, days of special meaning and telephone contact. The parties also agreed to a "Right of First Refusal" provision which is essentially a preferred babysitter clause providing that, should either party need assistance with childcare, the other party was to be contacted initially and provided the opportunity to spend time with the child.
{¶4} As a result of ongoing conflict, Appellant filed a motion for contempt on August 26, 2011, citing Appellee's failure to notify him prior to obtaining a babysitter for the child. On September 30, 2011, Appellee filed a motion to appear and show cause regarding Appellant's failure to file a qualified domestic relations order (QDRO) relative to his 401(k) account as well as his failure to pay case settlement monies to Appellee, both required pursuant to the final divorce decree.
{¶5} On March 7, 2012, Appellant filed a motion to reallocate parental rights, or, in the alternative, a motion for shared parenting. On April 11, 2012, Appellee, having remarried, filed a pro se notice of intent to relocate from Columbiana to Niles, Ohio. Appellant subsequently filed a motion for an emergency order preventing the removal of the child from Columbiana County. A magistrate's decision was issued on July 23, 2012, denying Appellant's emergency motion. The matter was set for a full hearing. On July 26, 2012 Appellee filed a motion seeking a psychological evaluation of Appellant. On July 31, 2012, the magistrate ordered both parties to undergo a psychological evaluation. Appellant filed objections to the magistrate's decision regarding the emergency motion and Appellee filed a response to Appellant's objections. On November 13, 2012, the trial court issued a judgment entry overruling Appellant's objections and affirming the magistrate's decision. A full trial on all issues was set for May 15, 2013. A number of witnesses were present and, as the matter was not concluded, a second day of trial was set for August 19, 2013. The magistrate heard testimony from both parties, the child's preschool director, Appellee's daughters from a previous marriage and Dr. Douglas Darnell, a psychologist. The record also reflects that Appellant has frequently recorded many aspects of his interactions relating to the child. The trial court indicated that Appellant, "made 1,468 recordings of: his discussions with the [Appellee], his discussions with the minor child, and doctor's appointments." The court indicated it was "seriously disturbed by the [Appellant's] recordings of most of his interactions with the minor child, and his inappropriate interrogation of the child during companionship periods." (10/28/13 Mag. Dec., p. 2.)
{¶6} At the conclusion of trial, the magistrate issued a lengthy decision detailing the evidence, finding no significant change in circumstances and denying Appellant's motion for reallocation of parental rights and responsibilities. The court also denied Appellant's motion for contempt, finding that the child did not want to speak for long periods of time on the telephone and that "[t]he 'Right of First Refusal' is being abused in this particular case." (10/28/13 Mag. Dec., p. 6.) Based on the parties' difficulties in communicating, the magistrate concluded that it was in the best interest of the child to make two minor changes to the existing custody agreement: (1) neither party would be permitted to exercise two weeks of uninterrupted time during the school year but only during their half of the summer parenting time, and (2) the "Right of First Refusal" clause was to be removed from the parenting schedule and neither party was required to contact the other for childcare.
{¶7} Appellant filed objections to the magistrate's decision, which were overruled by the trial court. The court entered judgment affirming the magistrate's decision.
{¶8} Appellant filed a timely notice of appeal and raises three assignments of error.
ASSIGNMENT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT-DEFENDANT IN FINDING THERE TO BE A "LACK OF CHANGE IN CIRCUMSTANCE" EFFECTIVELY ENDING THE COURT'S INQUIRY INTO THE BEST INSTEREST [SIC] OF THE CHILD STANDARD AND DENYING APPELLANT-DEFENDANT'S MOTION FOR THE REALLOCATION OF PARENTAL RIGHTS AND/OR SHARED PARENTING.
ASSIGNMENT OF ERROR NUMBER TWO
THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT-DEFENDANT WHEN IT DENIED SHARED PARENTING DUE TO A LACK OF CHANGE OF CIRCUMSTANCES.
{¶9} In his first and second assignments of error, Appellant argues the trial court abused its discretion in concluding there was no change in circumstances and denying Appellant's motion for reallocation of parental rights or, in the alternative, for shared parenting. Appellant presents the same arguments that he advanced at trial regarding the child's physical and dental health as evidence that a change of circumstances has occurred. He also argues that Appellee's violation of the right of first refusal, scheduling uninterrupted time during his parenting time and lack of telephone communication with the child are sufficient to warrant a modification to the custody order.
{¶10} Pursuant to R.C. 3109.04(E)(1)(a):
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree * * *, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶11} Thus, in evaluating a motion to reallocate parental rights and responsibilities and to make a change in the residential parent, a court is required to find: (1) a change in circumstances, (2) the modification is in the child's best interest, and (3) harm to the child from the modification is not outweighed by the benefits of the modification. Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604, 737 N.E.2d 551 (7th Dist.2000). Moreover, the record must adequately support each of these findings. Id. at 599. R.C. 3109.04(E)(1)(a) creates a rebuttable presumption that retaining the residential parent in the existing order is in the child's best interest. Id.
{¶12} In the instant case, the trial court specifically found that the parties have "vastly different parenting styles" and cannot agree on what the child eats, the child's weight or telephone contact and, perhaps most importantly, the court noted that the parties have not found any way to communicate with each other in an amicable fashion, a fact which has not changed since the parties' divorce. (10/28/13 Mag. Dec., p. 5.) The court further found that if the parties had started communicating and cooperating, that fact would constitute a change in circumstance. Id. As the court did not find a change in circumstances had occurred, we must determine whether the trial court abused its discretion in making that determination. Davis v. Flickinger, 77 Ohio St.3d 415, 417, 674 N.E.2d 1159, 1161-1162 (1997). A trial court's decision regarding child custody that is supported by competent, credible evidence will not be reversed absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus. An abuse of discretion connotes that the trial court's decision was arbitrary, unreasonable or unconscionable. Will v. Will, 113 Ohio App.3d 8, 680 N.E.2d 197 (1996); Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 197 (1983).
{¶13} Appellant contends that the evidence presented of the child's weight and dental health is significant enough to warrant finding a change of circumstances. Specifically, Appellant contends that Appellee is not doing a suitable job looking out for the child's health. Testimony at the hearing indicated that both parents were involved in selecting the child's physician and that the child attended regular doctor's visits. The court also noted Appellant incessantly records many aspects of the child's life including all doctor and dental visits. Appellant testified that although he was worried that Appellee was letting the child eat too much candy and other unhealthy foods, he never addressed the issue directly with Appellee but only with the child. Appellee testified that the child "is just a big kid" and "always has been." (Tr., p. 120.) The trial court indicated in its findings that a recording from a doctor's visit recorded by Appellant himself indicated that the child's doctor did not believe the child was overweight and that he would probably undergo a growth spurt and "grow out of it." (4/24/14 J.E., p. 2.)
{¶14} Appellant also asserts that Appellee is not adequately caring for the child's teeth, as evidenced by the extensive dental work undergone by the child. Both parties testified as to the possible causes of the child's dental issues. Appellant asserted it was from the child eating too many sweets and Appellee failing to follow up with dental appointments. Appellee testified that genetics and frequent use of a nebulizer as a toddler contributed to the enamel problems. She indicated that frequent rinsing after use of the nebulizer was required which was not always done. The subject of the child's physical health was carefully considered by the trial court:
The Defendant/Father further expressed concerns about [the child's] teeth and his weight. The Defendant contends that [the child's] teeth are literally "rotting out of his mouth." He further believes that [the child] is severely overweight. The child also suffers from asthma. He does not believe that the Plaintiff is attending to the child's health concerns. The Defendant attends all of [the child's] dental and medical appointments. [The child] required extensive dental procedures. He had several teeth pulled, several fillings, spacers installed, teeth ground down and crowns. The Defendant testified that he is concerned that Plaintiff permits the child to have sticky candy and gum, against the recommendation of the dentist. However, he acknowledges that he did not voice the concerns to the Plaintiff. Instead he discussed the matter with the child. The Defendant is also attempting to address what he perceives as the child's weight problem. He encourages [the child] to eat healthier and get more physical activity. He testified that the Plaintiff allows the child to eat unhealthy foods and sticky candy and gum, all of which is a problem for either his teeth or his weight. In
contradiction to the Defendant's insistence that the child is severely overweight, the Defendant's own recording of the child's appointment with the doctor verifies that the child is in the normal BMI range for his height and weight. The doctor can be heard to say, "He is just a big kid." The doctor further states, "if you have concerns, you can restrict sweets, eliminate fruit juice, eat more protein and fewer carbs." Additionally, the doctor states, "he'll probably have a growth spurt and grow out of it. I just don't see a problem with the child's weight." The minor child's asthma doctor indicated a correlation between excess weight and breathing difficulty (with or without asthma).(4/24/14 J.E., p. 2.)
{¶15} It is clear from the record that the trial court fully considered all evidence presented regarding the physical health of the child and did not agree with Appellant's assertions. The court also concluded that Appellant did not present evidence that the child had health concerns that Appellee was failing to address.
{¶16} Appellant contends that the trial court erred in failing to adequately consider Appellee's use of the two weeks of uninterrupted time as a tactic to prevent him from seeing the child for long periods of time. Both parties testified that there has been substantial disagreement on the subject of uninterrupted time with Appellant testifying that Appellee continually utilized it as a tool to delay his visits with the child. Appellee testified that Appellant never approved or agreed to the time she selected, including uninterrupted time to allow the child to attend her wedding on a cruise in March of 2012. The trial court ultimately concluded that neither party cooperated with the uninterrupted time provision of the agreement, which provided further evidence of their inability to communicate. The trial court ultimately ruled that the provision permitting two weeks of uninterrupted time with the child was to be removed from the parenting order and limited each parent's uninterrupted two-week period to use during their portion of the child's summer vacation.
{¶17} Appellant also contends that Appellee disregarded the right of first refusal provision in the agreement by having the child's half-sisters and step grandmother babysit him, rather than calling Appellant to see if he wanted to spend time with the child. Appellee testified that she rarely needed a babysitter because the child was in preschool and she generally did not work on the days that he was home. After hearing all of the evidence presented on the issue, the trial court concluded that the provision was never intended to be used whenever either parent left the home for a short period of time, but was intended as an alternative to daycare when the child would need care for longer periods of time. The court stated that because the parties cannot agree on the appropriate use of this provision, it should be removed from the parenting schedule to avoid placing the child in the middle of additional conflict.
{¶18} Lastly, Appellant argues that Appellee prevented him from communicating by telephone on a consistent basis with his son. He claims that this is evidence of Appellee's interference with his companionship with the child. Appellee testified that the child speaks with Appellant on the phone but that he has a short attention span and usually does not want to talk as long as Appellant would like. In its judgment entry, the trial court did not specifically address the issue other than to acknowledge Appellee's statement regarding the child's lack of attention span and the young age of the child at the time of hearing. The child was four at the time of the parties' hearing.
{¶19} The trial court also addressed the testimony of Dr. Douglas Darnall, who was called by Appellee to testify. Dr. Darnall met with Appellee to discuss her concerns and had reviewed some of Appellant's recordings of the child. Dr. Darnall testified that many of Appellant's interactions with the child are similar to interrogations and that Appellant was putting too much pressure on the child concerning Appellee's affairs. Dr. Darnall confirmed that the parties have vastly different parenting styles but did not make any recommendation regarding residential parent status or custody.
{¶20} This record reflects that the trial court's findings are clearly supported, in both the hearing testimony and evidence admitted. Further, the trial court correctly applied the legal principles in its change of circumstances analysis.
{¶21} As the trial court properly applied the law to the facts in the instant case, we now turn to a review of whether the trial court abused its discretion in its ruling. Appellant essentially contends that the trial court ignored the evidence presented regarding the child's physical health, the uninterrupted time and the right of first refusal. The record before us reveals that the trial court spent a great deal of time considering the evidence before it, including all testimony and Appellant's own recordings of doctor visits and documents admitted into evidence by the parties.
{¶22} Although Appellant may disagree with the trial court's decisions on the matter, credibility of witnesses is a matter generally left to the trier of fact, whether a jury or the judge: "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of facts." State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. It is clear from the trial court's lengthy and detailed analysis of witness testimony that the judge carefully reviewed the evidence before it and the determination was not unreasonable, arbitrary or unconscionable. Accordingly, Appellant's first and second assignments of error are without merit and are overruled.
ASSIGNMENT OF ERROR NUMBER THREE
THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT-DEFENDANT IN FAILING TO FIND THE APPELLEE-PLAINTIFF IN CONTEMPT DESPITE CLEAR EVIDENCE ESTABLISHING HER DISOBEDIENCE TO A COURT ORDER.
{¶23} In his third assignment of error Appellant asserts that the trial court abused its discretion in failing to find Appellee in contempt despite evidence that she disobeyed a court order in failing to adhere to the childcare right of first refusal contained in the parenting order.
{¶24} Contempt is defined as a disregard for or disobedience of an order or command of judicial authority. First Bank of Marietta v. Mascrete, Inc., 125 Ohio App.3d 257, 263, 708 N.E.2d 262 (1998). Failure to abide by a court order may be indirect contempt, as it occurs outside the presence of the court but demonstrates a lack of respect for the court. Byron v. Byron, 10th Dist. No. 03 AP 819, 2014-Ohio-2143 at ¶11. A trial court's determination as to whether contempt has occurred is reviewed for abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). As noted supra, an abuse of discretion connotes that the trial court's decision was arbitrary, unreasonable or unconscionable. Blakemore, supra.
{¶25} Appellant cites the testimony of Appellee's daughters that they provided babysitting for the child while Appellee was at work. He also provided video showing Appellee taking the child to a babysitter instead of contacting him, played an audio recording for the trial court in which Appellee stated she contacted a babysitter without first calling Appellant.
{¶26} While we also note the troubling nature of Appellant's numerous recordings of virtually all interactions relating to his son, the trial court's judgment entry is replete with findings revealing that both parties misunderstood the purpose of the right of first refusal. Rather than utilizing it to facilitate both parties spending quality time with the child, they have instead used the provision as a weapon against each other to the detriment of the child. "The parties do not understand the spirit of the provision. It is intended to provide the other parent with additional quality time with the child. It is a bonus, a gift. Instead, they have used it against each other, and as a constant source of stress for the minor child." (4/24/14 J.E., p. 4.)
{¶27} It is because of this inability of both parties to utilize the provision as it was intended that the court ordered the provision removed from the parenting schedule. In reviewing the trial court's findings, the transcript and exhibits, the trial court did not abuse its discretion in denying Appellant's motion for contempt where neither party adhered properly to the provision at issue. Therefore, Appellant's third assignment of error is overruled.
Conclusion
{¶28} Appellant presents three assignments of error on appeal. In the first and second assignments of error, Appellant asserts the trial court erred and abused its discretion in failing to find a change in circumstances warranting a reallocation of parental rights. The trial court's careful consideration of the evidence and witness credibility is well supported and its decision was not unreasonable, arbitrary or unconscionable. Therefore, assignments of error one and two are overruled. In Appellant's third assignment of error he contends the trial court erred in denying his motion for contempt against Appellee for failing to adhere to the right of first refusal provision in the parenting plan. The trial court's analysis supports its finding that both parties failed to utilize the provision appropriately. Therefore, a finding of contempt against Appellee was not warranted and the provision was ordered removed from the parenting agreement. Appellant's third assignment of error is likewise without merit and is overruled. Based on the foregoing, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed. Donofrio, P.J., concurs. DeGenaro, J., concurs.