Vogel v. Mestemaker
2016 Ohio 7244
| Ohio Ct. App. | 2016Background
- Parents divorced in 2006; custody initially to Christy, Richard became residential parent in 2010. Christy moved to Tennessee in 2012.
- Christy moved in 2014 to reallocate parental rights; she ultimately sought residential custody of the younger child only. A magistrate recommended granting her motion after a December 2014 hearing; guardian ad litem supported reallocation and the 12‑year‑old child expressed a wish to live with Christy.
- Both parties filed objections; Richard later filed (and supplemented) a motion to appoint counsel for the younger child attaching a post‑hearing letter in which the child stated a change of heart.
- Trial court excluded the child’s written letter under R.C. 3109.04(B)(3), denied appointment of counsel, conducted an independent review, and adopted the magistrate’s decision in a September 4, 2015 judgment designating Christy residential parent of the younger child.
- Multiple contested summer‑2015 parenting exchanges led to cross show‑cause motions. At a September 4, 2015 hearing the court found both parents in civil contempt and imposed conditional sanctions; both appealed.
Issues
| Issue | Vogel's Argument | Mestemaker's Argument | Held |
|---|---|---|---|
| Whether trial court failed to independently review magistrate’s decision under Civ.R. 53 | Vogel: trial court performed independent review and addressed objections | Mestemaker: court didn’t expressly resolve objections and thus failed required review | Affirmed: court conducted independent review; failure to itemize each objection not reversible error |
| Whether trial court erred by considering Mestemaker’s later motion to appoint counsel and child’s letter when adopting magistrate’s decision | Vogel: the appointment motion and letter were supplemental pleadings; court could consider/segregate them | Mestemaker: those filings were unrelated and made court confused, undermining Civ.R. 53 review | Affirmed: court properly treated motion separately and later addressed it before final judgment |
| Whether trial court should have excluded child’s written statement and declined appointment of counsel for child | Vogel: exclusion proper under R.C. 3109.04(B)(3); no conflict requiring counsel | Mestemaker: letter showed child changed wishes and conflicted with guardian ad litem, so counsel should be appointed | Affirmed exclusion and denial of counsel (trial court discretion preserved) |
| Whether both parents were properly held in civil contempt for parenting‑time violations | Vogel: Richard’s motion focused on Tennessee TPO; she lacked notice of other contempt claims; court lacked jurisdiction over TPO; she denied disobeying orders | Mestemaker: Christy withheld communication, failed exchanges, obtained TPO to obstruct his parenting time; both engaged in willful noncompliance | Mixed: contempt against Richard affirmed; contempt against Christy reversed (trial court relied on anticipatory/uncharged conduct for her contempt finding) |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Kirk v. Kirk, 172 Ohio App.3d 404 (Ohio Ct. App. 2007) (contempt must relate to past conduct; no anticipatory contempt)