Cichanowicz v. Cichanowicz
2013 Ohio 5657
Ohio Ct. App.2013Background
- Phil and Lisa divorced in 1999; Lisa was designated sole residential parent of three children. Phil repeatedly moved to modify custody/parenting time and filed multiple contempt motions (June 2009–July 2012) alleging Lisa denied court-ordered parenting time and violated other orders.
- The trial court appointed guardians ad litem (GALs) to protect the children’s interests and received GAL reports recommending counseling and limited restoration of contact between Phil and the youngest child, Sarah.
- The court found Lisa in contempt on several occasions, imposed suspended jail sanctions and ordered payment of some attorney, GAL, and court costs; several discrete orders (July 26, 2010 and Jan. 27, 2011) became final and were not timely appealed by Phil.
- After hearings, the trial court adopted a November 18, 2010 interim parenting-time order as the final parenting-time order effective Sept. 28, 2012, concluding it was in Sarah’s best interest given case history, GAL testimony, counseling progress, and Sarah’s wishes.
- The trial court found Lisa in contempt on Phil’s sixth–tenth contempt motions and awarded Phil $3,000 in attorneys’ fees and costs only for the sixth and tenth motions; the court declined additional fee awards based on equitable considerations and allocated GAL fees by agreement.
- Phil appealed, challenging (1) the appointment/involvement of GALs and the adoption of the modified parenting schedule, and (2) the trial court’s allocation of attorney fees, GAL fees, and court costs under R.C. 3105.73(B) and R.C. 3109.051(K).
Issues
| Issue | Plaintiff's Argument (Lisa) | Defendant's Argument (Phil) | Held |
|---|---|---|---|
| Appointment of GAL | Appointment was essential to protect children and was supported by the court’s finding. | Appointment was premature while contempt motions were pending and unnecessary. | Trial court did not abuse discretion in appointing GAL under Civ.R.75(B)(2). |
| Adoption of modified parenting-time order | Modified schedule (Nov. 18, 2010) was based on R.C.3109.051(D) factors, GAL input, in‑camera interview, and child’s best interest. | Court should have reinstated earlier March 2, 2007 schedule or promptly enforced it after contempt findings. | Court did not abuse discretion; record shows consideration of statutory factors and child’s best interest; appellant’s omitted transcript portions preclude reversal. |
| Sequencing: adjudicate contempt before modification | N/A (court proceeded jointly) | Court erred by resolving modification while contempt motions were pending and delayed adjudication of contempt. | Trial court has docket control; considering contempt and modification concurrently was within its discretion; delay not an abuse. |
| Award of fees/costs and GAL fees under R.C.3109.051(K) and R.C.3105.73(B) | Where contempt found, awarding fees/costs is subject to trial-court discretion and equity (R.C.3105.73) and GAL fees are allocable as litigation expenses. | R.C.3109.051(K) mandates award of court costs and reasonable attorney’s fees for each contempt finding; GAL fees should be awarded as court costs tied to contempt; bankruptcy-related fees should be recoverable. | Court erred as a matter of law by failing to award court costs and reasonable attorney’s fees under R.C.3109.051(K) for Phil’s seventh, eighth, and ninth contempt motions (court found Lisa in contempt on them). Court properly exercised discretion (and did not err) in allocating GAL fees and in declining to award bankruptcy-related fees. Remanded to award costs and reasonable fees for those three contempt motions. |
Key Cases Cited
- Braatz v. Braatz, 85 Ohio St.3d 40 (Ohio 1999) (governing statutory standard for modification of parenting-time schedules and required factors to consider)
- Appleby v. Appleby, 24 Ohio St.3d 39 (Ohio 1986) (visitation/parenting-time determinations rest within trial court discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion review)
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S. 1962) (principle that a client is bound by acts of counsel)
- McAuliffe v. W. States Import Co., Inc., 72 Ohio St.3d 534 (Ohio 1995) (principle that a specific statutory provision controls over a more general one)