Opinion
2023CA0014
12-29-2023
BRANDON STURTZ Plaintiff-Appellee v. TIFFANY WISE-STINE Defendant-Appellant
For Plaintiff-Appellee WILLIAM TODD DROWN Drown Law Offices, Inc. For Defendant-Appellant DAN GUINN
CHARACTER OF PROCEEDINGS: Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case No. 21140071
For Plaintiff-Appellee WILLIAM TODD DROWN Drown Law Offices, Inc.
For Defendant-Appellant DAN GUINN
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
OPINION
HOFFMAN, P.J.
{¶1} Defendant-appellant Tiffany Wise-Stine ("Mother") appeals the March 30, 2023 Judgment Entry entered by the Coshocton County Court of Common Pleas, Juvenile Division, which overruled her objections to the magistrate's November 10, 2022 decision, and approved and adopted said decision with one modification. Plaintiff-appellee is Brandon Sturtz ("Father").
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father are the biological parents of the minor child ("the Child"). The parties were never married. The parties executed a shared parenting plan on April 26, 2013. Shortly thereafter, on January 31, 2014, Mother filed a motion to terminate the shared parenting plan and be named the sole residential and custodial parent of the Child. Father filed a motion to reallocate parental rights and responsibilities on February 18, 2014. The trial court conducted an evidentiary hearing on May 15, 2015. Thereafter, the trial court issued a new shared parenting plan on August 13, 2015. On November 28, 2016, an agreed judgment entry, which made minor modifications to the companionship schedule set forth in the August 13, 2015 shared parenting plan, was filed.
{¶3} On June 14, 2021, Mother filed a motion to terminate the shared parenting plan and to be named the legal custodian and residential parent of the Child. On the same day, Mother also filed a motion for the appointment of a guardian ad litem for the Child and a motion for an in-camera interview of the Child. Father filed a motion to show cause on June 22, 2021, alleging Mother had prevented his companionship with the Child on numerous occasions. The magistrate conducted a hearing on the motions on July 12, 2021.
{¶4} Via Order filed July 14, 2021, the magistrate granted Father supervised visitation with the Child at the Family PACT Center in Coshocton, Ohio, and ordered the parties to comply with any and all treatment recommendations made by the Child's team at Chrysalis Counseling Center. Mother withdrew her motion for the appointment of a guardian ad litem. The magistrate deferred ruling on Mother's motion for an in-camera interview of the Child.
{¶5} Father's supervised visitation was suspended after an incident during a visit at the PACT Center on August 31, 2021, during which Father and the Child were yelling and both were "inappropriate," resulting in the visit being ended. Father filed a motion for contempt on September 17, 2021, alleging Mother failed to keep him informed of the Child's doctor visits, school events, and extracurricular activities. The magistrate conducted a review hearing on September 22, 2021. The magistrate issued an order on October 1, 2021, recommencing Father's supervised visitation, ordering the parties to engage in high-conflict co-parenting counseling at Chrysalis Counseling Center and follow any recommendations, and ordering the Child engage in counseling at Chrysalis Counseling Center only after Mother had brought the Child to another counseling center without informing anyone of the arrangement.
{¶6} Via Order filed November 12, 2021, the magistrate scheduled a hearing on all pending motions for January 25, 2022. On December 1, 2021, Father filed a motion for modification of the magistrate's temporary orders. Mother filed a response in opposition on December 9, 2021. Via Order filed December 15, 2021, the magistrate granted Father's motion for modification and awarded him unsupervised visitation with the Child on December 26, 2021, and January 1, 2022. The magistrate specifically ordered the parties to exchange the Child at the Coshocton County Sheriff's Office; Father conduct his visitation in public; and Mother produce the Child for visitation or be found in contempt.
{¶7} Mother filed a motion for the appointment of a guardian ad litem for the Child on December 16, 2021, and a motion to modify child support on December 20, 2021. Mother filed a motion to show cause on December 29, 2021, alleging Father had violated the trial court's December 15, 2021 Order by taking the Child to a family event on December 26, 2021. On the same day, Mother filed a motion for supervised parenting time and a renewed motion for an in-camera interview of the Child. On January 4, 2022, Mother filed a second motion to show cause, alleging Father had violated the trial court's December 15, 2021 Order by taking the Child to his home on January 1, 2022, for a holiday event.
{¶8} On January 5, 2022, the magistrate granted Mother's motion for an in-camera interview of the Child and scheduled such for January 24, 2022. The magistrate conducted the in-camera interview on the scheduled date. The magistrate appointed Attorney Richard Hixson as guardian ad litem for the Child on January 25, 2022. On the same day, the magistrate conducted a hearing to review the temporary orders as well as a pre-hearing on the pending show cause motions. Counsel for the parties stipulated to reports from William Johnson, Director of the Family PACT Center, who monitored parenting time between Father and the Child; Chris Sand-Ashley, a marriage and family counselor, who provided high-conflict co-parenting therapy for Mother and Father; and Brian Bostic, a marriage and family counselor, who conducted fourteen sessions with the family. The parties presented no other witnesses or evidence. At the conclusion of the hearing, the magistrate modified the temporary orders, granting Father companionship with the Child during the week and providing Mother with visitation on the weekends with phone access during the week. The magistrate ordered the Child to leave the hearing with Father to begin the new companionship schedule.
{¶9} The magistrate conducted a hearing on June 2, 2022, at which time Brian Bostic testified. The hearing was continued until June 25, 2022. On that day, the magistrate heard testimony from the guardian ad litem, Mother, Father, and Father's wife.
{¶10} On July 4, 2022, the Child sustained a superficial burn from a sparkler, which did not require medical attention. Father explained what occurred, but Mother was not satisfied with his explanation. Mother inundated the Our Family Wizard communication system with questions and accusations. Father did not respond. On July 7, 2022, Mother filed a motion asking the trial court to order Father to respond to each inquiry by a date certain. Father filed a memorandum contra on July 8, 2022, to which Mother filed a rebuttal on July 15, 2022.
{¶11} The magistrate conducted a hearing on July 19, 2022. Via Order filed July 25, 2022, the magistrate modified its temporary orders and named Father the temporary residential and custodial parent of the Child and terminated the shared parenting plan.
{¶12} The magistrate issued a decision on November 10, 2022. Mother filed objections on November 21, 2022. Via Judgment Entry filed March 30, 2023, the trial court overruled Mother's objections to the magistrate's decision, and approved and adopted said decision as order of the court with one modification relative to Mother's midweek parenting time.
{¶13} It is from this judgment entry Mother appeals, raising the following assignments of error:
I. THE COURT ERRED IN NAMING THE APPELLEE AS THE LEGAL CUSTODIAN AND RESIDENTIAL PARENT OF THE CHILD.
II.THE COURT ERRED IN FIND THE APPELLANT IN CONTEMPT.
I
{¶14} In her first assignment of error, Mother contends the trial court erred in naming Father the legal custodian and residential parent of the Child.
{¶15} Our standard of review in assessing the disposition of child custody matters is an abuse of discretion. DiDonato v. DiDonato, 5th Dist. Tuscarawas, 2016-Ohio-1511, 63 N.E.3d 660, ¶ 44, quoting Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶16} Pursuant to R.C. 3109.04(E)(2)(c), a juvenile court may terminate a shared parenting decree upon request of one or both of the parents, or if the shared parenting plan is not in the best interest of the child. The juvenile court makes this determination by "considering and balancing of the factors set forth in R.C. 3109.04(F)(1) and (F)(2)." Ackley v. Haney, 12th Dist. Fayette No. CA2021-07-017, 2022-Ohio-2382, ¶ 14.
{¶17} To determine what is in the best interest of a child, R.C. 3109.04(F)(1) requires a trial court to consider all relevant factors. Bristow v. Bristow, 12th Dist. Butler No. CA2009-05-139, 2010-Ohio-3469, ¶ 8. These factors include, but are not limited to: (a) the wishes of the child's parents regarding the child's care; (b) the wishes or concerns of the child as expressed to the court; (c) the child's interaction and interrelationship with her parents and any other person who may significantly affect the child's best interest; (d) the child's adjustment to her home, school, and community; (e) the mental and physical health of all persons involved; (f) the parent more likely to honor and facilitate visitation and companionship rights approved by the court; (g) whether either parent has failed to make all child support payments; (h) whether either parent previously has been convicted of or pleaded guilty to certain criminal offenses or whether either parent has perpetrated child abuse or neglect; (i) whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation in accordance with an order of the court; and (j) whether either parent has established a residence, or is planning to establish a residence, outside this state. R.C. 3109.04(F)(2).
{¶18} "When determining whether shared parenting is in a child's best interest, the trial court must consider the additional factors set forth in R.C. 3109.04(F)(2)." Chaney v. Chaney, 12th Dist. Warren No. CA2021-09-087, 2022-Ohio-1442, ¶ 37, citing Adkins v. Adkins, 12th Dist. Butler No. CA2016-12-227, 2017-Ohio-8636, ¶ 11. These factors are (1) the ability of the parents to cooperate and make decisions jointly, with respect to the child; (2) the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; (3) any history or potential for abuse; (4) the geographic proximity of the parents to one another; (5) and the recommendation of the guardian ad litem, if the child has a guardian ad litem. R.C. 3109.04(F)(2)(a) thru (e). "While no factor in R.C. 3109.04(F)(2) is dispositive, effective communication and cooperation between the parties is paramount in successful shared parenting." Seng v. Seng, 12th Dist. Clermont No. CA2007-12-120, 2008-Ohio-6758, ¶ 21.
{¶19} Mother initially asserts the trial court should not have named Father the legal custodian and residential parent of the Child because Father neither filed a motion to terminate the shared parenting plan nor a motion requesting he be named the sole residential and custodial parent of the Child. Father acknowledges he did not file written motions, but submits he made an oral motion to terminate the shared parenting plan and be named sole residential and custodial parent.
{¶20} R.C. 3109.04(E) provides, in relevant part:
(2) In addition to a modification authorized under division (E)(1) of this section:
(c) 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.
R.C. 3109.04.
{¶21} Because R.C. 3109.04(E)(2) grants a trial court the authority to terminate a shared parenting plan "whenever it determines that shared parenting is not in the best interest of the children," Father's failure to file a written motion to terminate the shared parenting plan or a motion requesting he be named the sole residential and custodial parent of the Child did not prevent the trial court from doing so.
{¶22} Mother further argues, assuming arguendo, Father properly requested he be named legal custodian and residential parent, "there was insufficient evidence to show that it was in the child's best interests for the Father to be named the legal custodian and residential parent." Brief of Appellant at p. 21. We disagree.
{¶23} Chris Sand-Ashley, a marriage and family therapist with Chrysalis Counseling Center, provided high-conflict co-parenting therapy for Mother and Father as ordered by the trial court on December 9, and December 16, 2021. In a letter dated December 29, 2021, Sand-Ashley recommended Mother and Father engage in co-parenting therapy, but added, in her clinical assessment, such therapy would not be productive while the parties were in litigation. After meeting with Mother and Father, Sand-Ashley reported:
I am concerned about what I witnessed during the two sessions. I explained to the parents the purpose of the co-parenting; to establish some level of common ground for the sake of [the Child]. It appeared that the parents are at such a high level of conflict and contempt that they could not hear this, much less agree with it. [Father] exhibited some verbal aggression in session. Both appeared to be inflammatory in their language with each other in sessions.
Joint Exhibit A.
{¶24} Brian Bostic, a marriage and family therapist with Chrysalis Counseling Center, provided family counseling for Father, Mother, and the Child. Bostic originally began individual counseling with the Child. However, due to obvious "structural issues" within the family system, Parents voluntarily engaged in family counseling in an attempt to improve the Child's relationship with Father. Bostic found the Child's disruptive feelings toward Father, and life in general, were caused by both Mother and Father. During his sessions, Bostic witnessed Mother, Father, and the Child demeaning one another. Bostic noted Mother and Father historically spoke negatively about and demeaned the other in front of the Child, which was a significant source of damage to the Child.
{¶25} Bostic has had fourteen (14) sessions with the family from May 5, 2021, through the final hearing: six (6) with Father and the Child, two (2) with Mother and the Child, two (2) with Mother, Father, and the Child, and four (4) with the Child alone. Bostic believed there was potential for the Child and Father to develop a healthy relationship and did "not see anything that threatens the safety of [the Child] in [Father's] house."
{¶26} Bostic further testified, prior to January 25, 2022, the Child spoke as if she would never have to return to Father's home for parenting time or otherwise. Bostic believed another individual was telling the Child she would have no further contact with Father. The Child often told Bostic she wanted nothing to do with Father. Bostic was concerned Mother supported and encouraged the Child's statements and feelings. During their sessions, Bostic found the Child would often parrot, sometimes verbatim, what Mother had previously said to him when the Child was not present.
{¶27} Bostic stated the Child's behavior and attitude changed depending on which parent brought her to counseling. During a session with Father and the Child on January 27, 2022, two days after the trial court ordered the Child leave with Father and two days without contact with Mother in any form, the Child engaged directly with Father. In contrast, during the sessions prior to and including January 13, 2022, the Child continuously refused to speak to Father directly and launched accusations against Father via Bostic. Bostic found a correlation between the Child's behavior toward Father and Mother's presence or absence, noting the Child was more combative in sessions with Mother. The Child provided positive reports about Father when Mother was absent and negative reports when Mother was present.
{¶28} With regard to parenting styles, Bostic characterized Father as tending to be too firm while Mother has a friendship-like relationship with the Child. During sessions, Mother often spoke for the Child and elaborated on the Child's feelings while Father focused on the Child's grades, behaviors, and lying. Although Father focused too much on discipline and accountability, Mother consistently failed to correct the Child's behaviors which resulted in the Child's disrespect for Father. Mother did not correct the Child when the Child referred to Father as "Brandon" or when the Child signed her name "Wise-Stine" instead of "Wise-Sturtz" at school.
{¶29} By May 24, 2022, Bostic observed progress made by Mother and Father with regard to the Child. Father made a demonstrable effort to utilize therapeutic techniques to moderate his anger and frustration. Father also empathized and accepted the Child's experience. For her own part, Mother made strides in redirecting the Child when she spoke negatively about Father and reminded the Child of the therapeutic techniques she had learned. However, Bostic did not observe any improvement in the communications between Mother and Father, and noted such failure continued to hinder the Child.
{¶30} In his report filed January 23, 2022, William Johnson, the Director of the Family PACT Center, detailed two visits he monitored between Father and the Child on January 14, 2022, and January 21, 2022. Johnson noted the Child engaged in intentionally-obstructive behaviors during the visits. While the Child occasionally spoke directly to Father in response to his questions, her attitude was hostile and exasperating. Johnson described the Child as "very opinionated and argumentative. She has to be right even when she doesn't know a lot about the subject they may be discussing." Johnson added the Child would "over talk you to make her point even when she is wrong."
{¶31} Prior to the start of the January 14, 2021 visit, Mother advised Johnson the Child and Father had had two unsupervised visits which "did not go well." Mother told Johnson Father violated the court order and was not present for one of the supervised visits. Mother also shared with Johnson a recent counseling session between the Child and Father "did not go well." According to Mother, Father "laughed at [the Child] during the session so it was not productive." Despite Mother's warnings, Johnson remarked "this was probably the most productive visit that was had at Family PACT," and "the visit ended with positive conversations."
{¶32} The GAL conducted visits at both Mother and Father's homes, and found both home environments appropriate and safe for the Child. The GAL did not detect undue influence by Mother, and disagreed with Bostic's concerns. The GAL noted the Child consistently expressed a desire to reside with Mother. The GAL found the definitive conflict between Mother and Father was their parenting styles. On cross-examination, the GAL admitted the Child lies and, most frequently, those lies were about Father. The GAL further acknowledged the Child's behavior toward Father was extreme and likely caused by the way Mother spoke about Father in front of the Child.
{¶33} Throughout the in-camera interview with the magistrate, the Child referred to Father as "Brandon." The magistrate had just finished introducing herself and explaining the process when the Child, unprompted, commenced a litany of accusations against Father. Although the magistrate tried to redirect the Child, the Child was unrelenting. The Child sounded as if she had been coached on what information to provide. The Child was repeatedly dishonest, but would not alter her statements when the magistrate gave the Child the opportunity to do so. The Child interrupted the magistrate when she felt the magistrate was challenging her or not responding as the Child expected. The Child was asked what she disliked about being at Father's home. The Child responded Father yells at her. When asked for an example, the Child said Father yells at her about everything. When asked about what she liked about being at Mother's home, the Child provided very specific responses. The Child retracted her answer any time she made a positive comment about Father.
{¶34} The magistrate noted the Child exhibited significant signs of parental alienation from Father by Mother. The Child wanted Father to apologize and change his attitude toward her, but added she was not willing to engage with him because she simply "doesn't want to have to deal with it."
{¶35} Upon review of the entire record, including reading all of the transcripts, reviewing the exhibits, and listening to the in-camera interview of the Child, we find the trial court did not abuse its discretion in terminating the shared parenting plan and naming Father the residential and custodial parent of the Child.
{¶36} Mother's first assignment of error is overruled.
II
{¶37} In her second assignment of error, Mother argues the trial court erred in finding her in contempt.
{¶38} Our standard of review regarding a finding of contempt is limited to a determination of whether the trial court abused its discretion, which is set forth supra. Sloat v. James, 5th Dist. Stark No. 2008 CA 00048, 2009-Ohio-2849, 2009 WL 1677850, ¶ 19. The burden of proof in a civil contempt action is proof by clear and convincing evidence. ¶ 19 The determination of "clear and convincing evidence" is within the discretion of the trier of fact. Id. The trial court's decision should not be disturbed as against the manifest weight of the evidence if the decision is supported by some competent and credible evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidenced submitted before the trial court. Geary v. Geary, 5th Dist. Delaware, 2015-Ohio-259, 27 N.E.3d 877.
{¶39} During the course of the proceedings, Father filed two motions to show cause. In his first motion to show cause filed on June 22, 2021, Father alleged Mother had interfered with his parenting time from May 7, 2021, through June 22, 2021. In his second motion to show cause filed on September 17, 2021, Father asserted Mother failed to provide him with the Child's academic and medical records and also failed to inform him of the Child's schedule including doctor visits, school events, and extracurricular activities. The trial court found Mother guilty of contempt on both grounds.
{¶40} The evidence reveals Mother willfully violated Father's court ordered parenting time. Mother dropped off the Child to Father at the exchange location at 5:30 p.m. on April 22, 2021. Approximately two hours later, the Child called Mother and asked Mother to come pick her up from the visit. Thereafter, Mother refused to allow Father to have visits with the Child. During her cross-examination, Mother was asked if she withheld visits from Father. Mother responded, "Given the situation of how [the Child] was scared, I - yeah." Transcript of June 25, 2022 Proceedings at p. 182. Mother acknowledged she did not have court approval to withhold the visits. Id. at p. 183. Mother did not seek an order modifying the companionship schedule. Further, Mother admitted she withheld visits for several months and visits did not resume until the parties appeared before the trial court on October 1, 2021.
{¶41} Based upon the foregoing, we find the trial court did not abuse its discretion in finding Mother in contempt for interfering with Father's ordered parenting time. Mother's testimony alone provided clear and convincing evidence to support the trial court's decision. Father concedes "the basis for any finding of contempt could not be based on the Motion to Show Cause filed September 17, 2021." Brief of Appellee at p.34. Accordingly, we find the trial court abused its discretion in finding Mother in contempt for failing to provide Father with the Child's records and activity schedules based upon Father's second motion for contempt against Mother filed September 17, 2021.
{¶42} Mother's second assignment of error is overruled, in part, and sustained, in part.
{¶43} The judgment of the Coshocton County Court of Common Pleas, Juvenile Division, is affirmed, in part, and reversed, in part, and the finding of contempt relative to Father's September 17, 2021 motion to show cause is vacated.
Hoffman, P.J. Wise, J. and Baldwin, J. concur