In re P.P.
2013 Ohio 4988
Ohio Ct. App.2013Background
- After the child's mother died, the maternal grandparents and other maternal relatives sought and obtained an agreed visitation order (Apr. 21, 2011) with the child P.P.; the father (appellant) was the child's custodian.
- Maternal relatives later moved for contempt alleging the father failed to facilitate court-ordered visits; an agreed entry in July 2011 resolved some missed visits by scheduling makeups.
- New contempt motion filed Feb. 24, 2012 proceeded to a magistrate trial (June 4, 2012); father admitted missed visits and blamed his wife S.P., the child’s stepparent and later adoptive parent.
- Magistrate found father in civil contempt; jail sentence suspended if he facilitated makeup visits. Father requested findings under Civ.R. 53, which magistrate denied; trial court later issued written findings after the parties agreed the court would do so.
- Trial court affirmed the contempt finding, concluding father had knowledge of the order, could have complied, and that S.P.’s later adoption did not nullify the visitation order. Father appealed; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether magistrate was required to issue findings of fact and conclusions of law | Father: magistrate must issue findings under Civ.R. 53 on request | Court/Maternal relatives: parties agreed trial court would issue findings; father waived error | Waived by father via agreed entry; assignment overruled |
| Whether trial court erred by not holding de novo evidentiary hearing on father's ability to comply | Father: trial court should have reweighed evidence and held new hearing on impossibility/ability to comply | Maternal relatives: father did not request de novo hearing at trial; issues not preserved | Not preserved for appeal; assignment overruled |
| Whether S.P. (stepparent/adoptive parent) should have been made a party and that her adoption relieved father of obligation | Father: S.P.’s refusal made compliance impossible and probate adoption conflicts with domestic relations order | Maternal relatives: adoption does not terminate visitation rights granted under R.C. 3109.11; father remained responsible | Adoption does not void or conflict with visitation order; father remained bound |
| Whether impossibility/impaired ability (due to S.P.) is a defense to contempt | Father: impossibility because wife prevented visits; thus cannot be held in contempt | Maternal relatives: impossibility is a defense only if not self-created; father voluntarily ceded authority to wife and previously complied while married | Father failed to prove impossibility; voluntary relinquishment not a defense; contempt affirmed |
Key Cases Cited
- State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69 (abuse-of-discretion standard for contempt review)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (definition of abuse of discretion)
- Cross v. Ledford, 161 Ohio St. 469 (definition of clear and convincing evidence)
- Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287 (elements required for contempt finding)