2019 Ohio 184
Ohio Ct. App.2019Background
- John A. Cain (father/appellant) and Julie M. Cain (mother/appellee) divorced; appellee was designated residential parent and appellant had supervised visitation.
- Post-divorce disputes arose over visitation, allegations by the child of sexual behavior by father (unsubstantiated), and appellee’s boyfriend/husband who had domestic-violence incidents in the child’s presence.
- Paternal grandmother Lynne Benek obtained temporary legal custody after appellee moved the child in with her husband; Benek later sought permanent custody but the trial court denied it and returned legal custody to appellee (provided she reside with her parents).
- In 2017 Benek and appellant filed new motions: Benek for permanent custody; appellant for contempt (for alleged visitation violations), change of custody, and unsupervised visitation.
- After an evidentiary hearing the trial court: denied contempt (found violations not willful), denied change of custody (no material change of circumstances), granted appellant unsupervised visitation, and dismissed Benek as a party. This appeal follows; majority affirms, Judge Grendell dissents.
Issues
| Issue | Plaintiff's Argument (Appellant/Benek) | Defendant's Argument (Appellee) | Held |
|---|---|---|---|
| Whether appellee should be held in contempt for violating visitation orders | Appellant: appellee failed to follow specific visitation orders (extra weekly day; six weeks summer time) and was thus in contempt | Appellee: acknowledged failures but blamed communication gaps and appellant's nonresponse; disputed that order language prescribed precise scheduling | Affirmed denial of contempt — court found orders unclear as written (Exhibit A not attached), credited appellee's testimony and found noncompliance not willful or sufficient for contempt |
| Whether there was a change of circumstances warranting modification of custody | Appellant/Benek: appellee’s pattern of denying visitation and exposing child to unsafe persons materially harmed parent–child relationship and constitutes changed circumstances | Appellee: incidents relied on were known to the court previously or were isolated/misunderstandings; no material adverse effect shown | Affirmed denial of custody change — no substantial, material change of circumstances proven |
| Whether appellant should be named custodial parent (fitness) | Appellant: he is fit; no court finding that he is unfit — thus custody should change | Appellee: maintained fitness issues were previously considered; no new proof that father is superior residential parent | Moot (court’s custody decision affirmed; no change) |
Key Cases Cited
- Zakany v. Zakany, 9 Ohio St.3d 192 (Ohio 1984) (courts possess inherent and statutory contempt authority)
- Hale v. State, 55 Ohio St. 210 (Ohio 1896) (historical authority for court contempt power)
- Flinn, State v., 7 Ohio App.3d 294 (Ohio App. 1982) (definition of contempt as disobedience to judicial orders)
- ConTex, Inc. v. Consol. Technologies, Inc., 40 Ohio App.3d 94 (Ohio App. 1988) (civil contempt requires clear and convincing proof)
- Pugh v. Pugh, 15 Ohio St.3d 136 (Ohio 1984) (innocent or unintentional violation is not a defense to contempt)
- Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (Ohio 1971) (same principle regarding contempt)
- United States v. Saccoccia, 433 F.3d 19 (1st Cir. 2005) ("four corners" rule for clarity of orders when deciding contempt)
- Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63 (1st Cir. 2002) (contempt analysis requires order to unambiguously forbid the conduct)