Echols v. EcholsEchols v. Echols
KERI E. FARLEY, Atty. Reg. No. 0076881, 2689 Commons Boulevard, Suite 100, Dayton, Ohio 45431 Attorney for Plaintiff-Appellee
REGINA R. RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana, Ohio 43078 Attorney for Defendant-Appellant
OPINION
{¶ 2} Echols and Gray were married in West Jordan, Utah on December 20, 2001. The parties are the parents of four children, and they divorced in 2017. By the terms of divorce decree, Echols was designated sole custodian and residential parent of the minor children, and Gray was awarded visitation with the children on alternating weeks from Thursday afternoon at 3:00 p.m. until the following Monday morning at 8:00 a.m.
{¶ 3} During the divorce proceedings, Gray had objected to the magistrate‘s decision to award sole custody of the children to Echols and to the division of the parties’ property. The trial court overruled Gray‘s objections and adopted the magistrate‘s decision in its entirety. Gray appealed, but she subsequently filed a motion to voluntarily dismiss of her appeal, which we granted in June 2018.
{¶ 4} Shortly after the appeal as dismissed, on June 27, 2018, Gray filed a motion for change of custody, alleging that a change in circumstances had occurred which required that she be awarded sole custody of the children. Additionally, on March 15, 2019, Gray filed a motion for contempt against Echols in which she alleged “interference with her visitation and access to daycare.” A hearing was held before the trial court over several days with respect to Gray‘s motions on January 15, March 22, April 12, and October 21 and 29, 2019, and on May 11 and 18, 2020. The trial court conducted in camera interviews with the eldest minor child on January 15, 2019, and with the younger children on July 13, 2020.
{¶ 6} Gray appeals.
{¶ 7} Gray‘s first assignment of error is as follows:
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT NOT TO FIND PLAINTIFF IN CONTEMPT WHEN HE INTERFERED WITH DEFENDANT‘S COURT-ORDERED VISITATION AFTER THANKSGIVING 2017 AT 9:00 P.M. TO THE FOLLOWING FRIDAY AT 3:00 P.M. AND HER DAYCARE ACCESS TO THE YOUNGEST CHILD ON 4 APRIL 2018 ABSENT ANY COURT-ORDERED OR STATUTORY RESTRICTIONS.
{¶ 8} Gray contends that the trial court abused its discretion when it failed to hold Echols in contempt for allegedly interfering with her court-ordered visitation on Thanksgiving weekend 2017 and limited her access to their youngest child while the child was attending daycare.
{¶ 9} With respect to the Thanksgiving holiday, the parties’ divorce decree stated “that the Thanksgiving parenting time is in accordance with the Standard Order of
2. The non-residential parent shall have visitation from 9:00 a.m. to 9:00 p.m. on the following holidays in the left column in even years, and shall have visitation from 9:00 a.m. to 9:00 p.m. in the right column in odd years.
January 1 | Memorial Day
July 4 | Labor Day
Thanksgiving
{¶ 10} In November 2017, the parties disagreed regarding with whom the children would be staying overnight on Thanksgiving night and the following day. Gray believed that by the terms of the divorce decree and standard order of visitation, since it was an odd-numbered year, Echols had the children on Thanksgiving and she was entitled to parenting time beginning at 9:00 p.m. on Thanksgiving night through the following day until 3:00 p.m., depending on which parent was to have parenting time that weekend.
{¶ 11} Conversely, Echols testified that he had believed that he was to have the children for the entirety of the Thanksgiving holiday and that the standard order allocated a portion of that day to each parent depending on whether it was an odd- or even-numbered year. As it was 2017, Echols testified that it was his year to have the children on Thanksgiving, and that any time not specifically allotted to Gray by the standard order belonged to him.
{¶ 12} Gray called the police to Echols‘s residence on Thanksgiving night 2017. One of the officers who arrived, Deputy Nicholas Moody, testified that he read the provisions of the documents that the parties were referring to, namely the divorce decree
{¶ 13} A trial court has inherent authority to enforce its prior orders through contempt. Dozer v. Dozer, 88 Ohio App.3d 296, 302, 623 N.E.2d 1272 (4th Dist.1993). See also
{¶ 14} This court will not reverse a ruling on a contempt motion absent an abuse of discretion by the trial court. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). An abuse of discretion suggests the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 15} “A party cannot be found in contempt if the contempt charge is premised on a party‘s failure to obey an order of the court and the order is not clear, definite, and unambiguous and is subject to dual interpretations.” Contos v. Monroe Cty., 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380, ¶ 15, citing Chilcote v. Gleason Constr. Co., 5th Dist. Ashland No. 01COA01397, 2002 WL 205851, *2 (Feb. 6, 2002), Smith v. Smith, 10th Dist. Franklin No. 93AP-958, 1994 WL 9055, *3 (Jan. 13, 1994), and In re Contempt of Gilbert, 8th Dist. Cuyahoga Nos. 64299 and 64300, 1993 WL 526788, *2 (Dec. 16, 1993). However, “[a]n order is not ambiguous merely because a party misunderstands the order and a misunderstanding of an unambiguous order is not a defense to a contempt proceeding.” Id., citing Chilcote at *2 and Gilbert at *7. “To be ambiguous, the order must be unclear or indefinite and subject to dual interpretations.” Id., citing Chilcote at *2 and Gilbert at *8.
{¶ 16} Although the trial court eventually stated that Gray‘s interpretation of the disputed provisions of the divorce decree and standard order was correct, the documents did not specifically state that Gray was entitled to parenting time with the children on
{¶ 17} Gray next argues that the trial court abused its discretion when it failed to find Echols in contempt for allegedly limiting her access to the youngest child while the child was in daycare. This child attended daycare from the time of the divorce until she began attending kindergarten. During this time, Gray began arriving unannounced at the daycare in order to visit with the child. The daycare teacher found Gray‘s visits to be disruptive to the rest of the class and complained to the daycare director, Becky Ortiz. Ortiz then contacted the daycare‘s owner, John Whitacre. Ortiz and Whitacre both testified at the hearing (Whitacre via deposition).
{¶ 18} Ortiz testified that the child would be in a good mood until Gray arrived, and then the child would become upset. Ortiz further testified that, after Gray left, the child‘s mood would improve. Ortiz testified that Echols did not instruct the daycare to limit Gray‘s access to the child; rather, Ortiz testified that the daycare had a policy that prohibited unfettered access to any of the children while they were attending the daycare.
{¶ 19} Significantly, the guardian ad litem (GAL) discussed the situation with Ortiz and stated the following in the GAL Report filed on November 9, 2019:
Ms. Ortiz feels that Mother was just considering what Mother wanted and
what was best for Mother as opposed to considering what was best for the child as well as the other children in the classroom. Ms. Ortiz could not understand why Mother did not understand the “disruption” since Mother herself is a teacher.
{¶ 20} Additionally, in his deposition testimony, Whitacre testified that Echols did not direct any daycare employees to limit Gray‘s access to the child. Whitacre testified that Gray was simply asked to refrain from arriving at the daycare while class was being held because she was disruptive and because Whitacre believed that Gray‘s visits presented issues with the daycare‘s licensing requirements. Whitacre testified that this request would apply to anyone and was not directed solely at Gray. Notably, aside from her own testimony that Echols had attempted to limit her daycare access, Gray presented no other evidence that Echols engaged in that behavior. Based on the evidence, the trial court did not abuse its discretion when it failed to find Echols in contempt.
{¶ 21} Gray‘s first assignment of error is overruled.
{¶ 22} Because they are interrelated, we will discuss Gray‘s second and third assignments of error together:
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT NOT TO FIND A CHANGE OF CIRCUMSTANCES WAS SUBSTANTIAL, SUBSTANTIATED, OR OF SUBSTANCE WHERE PLAINTIFF‘S CONTINUING CONDUCT OF DENYING COURT-ORDERED VISITATION, DAYCARE/SCHOOL ACCESS, TELEPHONE AND PHYSICAL CONTACT ON EASTER AND AT CHURCH SERVICES, AND REASONABLE RESPONSES TO HER REQUESTS FOR INFORMATION
HAD A MATERIALLY ADVERSE EFFECT ON THE CHILDREN. IT WAS AN ABUSE OF DISCRETION TO NOT FIND THAT PLAINTIFF‘S RECORDING OF THE MINOR CHILDREN IN THE RESIDENCE AS A SUBSTITUTE FOR CHILDCARE, AND OF DEFENDANT AT PARENTAL EXCHANGES OR OTHER INTERACTIONS, AND OF THE PARTIES DURING THE COURT‘S RECOMMENDED COUNSELING SESSIONS WAS NOT A SUBSTANTIATED, CONTINUING CHANGE THAT HAD A MATERIALLY ADVERSE EFFECT UPON THE CHILDREN - SIGNIFICANTLY THE ELDEST DAUGHTER WHO PROVIDED THE MAJORITY OF CHILDCARE AFTER THE DECREE UNTIL PLAINTIFF [sic] FILED FOR REALLOCATION.
{¶ 23} Gray argues that the trial court abused its discretion when it found that no change in circumstances had occurred warranting a change of custody.
{¶ 24} “The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record.’ A reviewing court will not overturn a custody determination unless the trial court has acted in a manner that is arbitrary, unreasonable, or capricious.” Haynes v. Haynes, 2d Dist. Montgomery No. 16992, 1998 WL 865040, *2 (Nov. 13, 1998). “It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable.” Jones v. Jones, 2019-Ohio-2355, 138 N.E.3d 634, ¶ 16 (2d Dist.)
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶ 26} The threshold question in this case is whether Gray demonstrated a change in circumstances. Although
{¶ 27} “The clear intent of that statute is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the children a ‘better’ environment. The statute is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.” Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982).
{¶ 28} The trial court reasonably concluded that Gray had failed to establish that a change in circumstance had occurred which warranted a change of custody. Initially, we note that any issues regarding Echols‘s alleged attempts to deny Gray her court-ordered parenting time or access to the child in daycare were addressed in our analysis of the first assignment of error. We also note that the parties divorce decree did not address Easter in regard to parenting time, so Gray cannot establish that Echols deprived her of any parenting time she was supposed to have regarding Easter. The record also did not establish that Echols prevented Gray from speaking to the children on Easter; although Gray attempted to call, no one answered, and when Gray texted with the oldest child later, the child indicated that they had been watching a movie at the time of the missed call.
{¶ 29} The record established that Echols has allowed Gray additional parenting time not required by the divorce decree on snow days and when he traveled for work. The children were also allowed to call Gray from Echols‘s house phone after school.
{¶ 30} Gray argues that Echols restricted her access to the children when they were at church during his parenting time. As a member of the Church of Jesus Christ of Latter Day Saints, Echols testified during the hearing that when he brings the children to church during his parenting time, he teaches them to practice reverence during services by sitting still and paying attention. Echols testified that Gray, who is also a member of the church, has at times come it sit near him and the children during services during his parenting time and, in doing so, undermined his ability to teach them “a reasonable degree of respect for a religious ceremony.” Appellee‘s Brief, p. 12. Echols testified that Gray does not require the same level of respect from the children during church services, and he simply wants her to sit somewhere else when they are at church during his parenting time. Echols testified that he does not try to sit next to the children or distract them at church during Gray‘s visitation time.
{¶ 31} Gray also contends that Echols uses the security cameras that he installed at his residence to spy on the children and as a substitute for hiring a babysitter. The evidence adduced during the hearings established that Echols had installed several security cameras that were only trained on the exterior entry/exit points of his residence in order to detect any unauthorized entry into his home. Echols testified that, with the
{¶ 32} In her third assignment, Gray argues that the children were somehow harmed by Echols‘s decision to record his and Gray‘s interactions during parenting time exchanges and during the court-mandated counseling sessions; however, Gray failed to show that the children had been harmed. There was no evidence that Echols used the cameras to spy on his children or to record them.
{¶ 33} In fact, the record before us establishes that during the pendency of the divorce and thereafter, the children were excelling in school, were involved in extracurricular activities, and maintained friendships outside the family unit. After interviewing the parents, the children, and other interested parties, the GAL reported that the children were “thriving” and recommended that the existing custody order stay in place. We agree with the trial court‘s conclusion that the evidence presented was insufficient to establish that change in circumstance had occurred requiring a modification of the custody arrangement.
{¶ 35} Gray‘s fourth assignment of error is:
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT NOT TO PROCEED TO A DETERMINATION OF BEST INTERESTS FOR THE ELDEST DAUGHTER WHEN SHE REPORTED TO THE GAL AND THE TRIAL COURT THAT SHE WANTED TO LIVE WITH HER MOTHER AND WAS AT AN AGE OF MATURITY THAT DEMONSTRATED A SUFFICIENT REASONING ABILITY AND NEED FOR PRIVACY, BOTH OF WHICH PLAINTIFF DISREGARDED.
{¶ 36} Gray argues that the trial court abused its discretion when it failed to consider the desire of the oldest child, S.E., to live with Gray. Gray seems to be arguing here that S.E.‘s wish to live with Gray, standing alone, constituted a change in circumstance requiring a modification of the custody order.
{¶ 37} The Ohio Supreme Court has explained that a child‘s maturing may constitute a change in circumstances. Davis v. Flickinger, 77 Ohio St.3d 415, 420, 674 N.E.2d 1159 (1997). However, the court held that age alone was not a sufficient factor. Id. Although a child‘s wishes regarding custody, standing alone, are generally not enough to constitute a change in circumstances, the child‘s wishes are nevertheless relevant to the analysis. See Rohrbach v. Rohrbach, 3d Dist. Seneca No. 13-15-14, 2015-Ohio-4728, ¶ 18; see also McLaughlin v. McLaughlin-Breznenick, 3d Dist. Logan No. 8-06-06, 2007-Ohio-1087, ¶ 28, citing Moyer v. Moyer, 10th Dist. Franklin No. 96APF05-659, 1996 WL 729859 (Dec. 17, 1996). Furthermore, in Baxter v. Baxter, 9th Dist. Lorain No. 10CA009927, 2011-Ohio-4034, the Ninth District Court of Appeals explained the
[C]onsideration of a child‘s desire to live with one parent over another typically goes to a determination of what is in the child‘s best interest, not whether there was a change in circumstances. See
R.C. 3109.04(B)(1) ;3109.04(F)(1)(a) . See, also, Doerfler v. Doerfler, 9th Dist. No. 06CA0021, 2006-Ohio-6960, at ¶ 34-36 (considering children‘s wishes to remain with mother under the best interest prong ofR.C. 3109.04(E)(1)(a) ).
{¶ 38} In Ashbridge v. Berry, 2d Dist. Greene No. 2009-CA-83, 2010-Ohio-2914, we identified the proper analysis in determining a child‘s best interest:
In determining a child‘s best interest, section 3109.04 instructs courts to consider all relevant factors, including those factors enumerated in subdivision (F)(1) of the section. See
R.C. 3109.04(F) . The relevant statutory factors are: the wishes of the parents regarding care; if the court interviewed the child, the child‘s wishes expressed to the court; the child‘s relations with his parents and others who might significantly affect his best interest; the child‘s adjustment to his home, school, and community; the mental and physical health of the child and his parents; the parent more likely to facilitate parenting time and visitation; child-support payment issues; and whether one parent lives, or plans to live, outside Ohio.R.C. 3109.04(F)(1) .
(Emphasis added.) Id. at ¶ 15.
{¶ 39} It is undisputed that S.E. indicated to the GAL and to the trial court that she wished to live with Gray. We note that other than S.E.‘s wishes, Gray states that Echols‘s
{¶ 40} Additionally, the record established that throughout the divorce and subsequent proceedings, Gray had sought to undermine Echols‘s relationship with S.E. through inappropriate remarks such as Gray‘s telling S.E. that she wanted to pick her up but Echols would not allow it. The GAL specifically noted in her reports that Gray had undermined Echols‘s relationship with S.E. On another occasion, Gray told S.E. that she would take Echols to court over where S.E. attended high school and that Echols was trying to keep S.E. away from Gray. Gray also told S.E. that: regardless of what the children‘s dentist said, Gray would continue to give the children candy and that Echols
{¶ 41} The trial did not err when it refused to find a change in circumstances based on S.E.‘s expressed desire to live with Gray. None of the allegations made by Gray in her brief established Echols‘s alleged “hostility” towards Gray. While it is apparent that Echols and Gray do not get along with one another and have different ideas regarding the parenting of their children, Gray failed to establish that it would be in the best interest of S.E. for the trial court to find that a change in circumstances has occurred requiring modification of the current custody order.
{¶ 42} Gray‘s fourth assignment of error is overruled.
{¶ 43} Gray‘s fifth assignment of error is as follows:
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT NOT TO PUT A CONFLICT ON THE RECORD AND EITHER APPOINT OR ALLOW THE ELDEST CHILD SEPARATE COUNSEL FROM THE GAL WHEN SHE STATED A WISH TO LIVE WITH HER MOTHER TO THE GAL IN 2018 AND CONFIRMED HER PREFERENCE TO THE TRIAL COURT ON 15 JANUARY 2019.
{¶ 44} In her final assignment, Gray argues that the trial court erred when it declined to add S.E. as a third party in the proceedings and to appoint her counsel after S.E. expressed a desire to live with Gray.
{¶ 45}
{¶ 46}
“Sup.R. 48 does not have the force of law.” Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736, ¶ 26. Rather, the rule, like all Superintendence Rules, is an administrative directive. See Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶ 12 (saying that the rules are “administrative directives only, and are not intended to function as rules of practice and procedure“). This means that the rule does not create any individual rights. See id. (saying that the rules “are purely internal housekeeping rules which are of concern to the judges of the several courts but create no rights in individual defendants“); Nolan at ¶ 26 (“Ohio appellate courts have indicated that the Rules of Superintendence are general guidelines for the conduct of the courts and do not create substantive rights in individuals or procedural law.“). Accordingly, whether to consider the report of a GAL when the GAL did not fully comply with Sup.R. 48(D) is within a trial court‘s discretion. * * *
Corey v. Corey, 2d Dist. Greene No. 2013-CA-73, 2014-Ohio-3258, ¶ 9.
{¶ 48} Here, based upon Sup.R. 48(D)(8), Gray argues that the GAL should have filed a report with the trial court informing it of a conflict between the GAL‘s
{¶ 49} Gray‘s fifth assignment of error is overruled.
{¶ 50} All of Gray‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
HALL, J. and WELBAUM, J., concur.
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Keri E. Farley Regina R. Richards Hon. Katrine Lancaster