[Cite as Ferreri v. Ferreri, 2013-Ohio-4314.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


CHRISTINA FERRERI,                              :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2013-T-0006
        - vs -                                  :

JACK ANTHONY FERRERI, JR.,                      :

                 Defendant-Appellant.           :


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2008 DR 390.

Judgment: Affirmed as modified.


Deborah L. Smith, Smith Law Firm, 109 North Diamond Street, Mercer, PA 16137, and
Anthony G. Rossi, III, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box
4270, Warren, OH 44482 (For Plaintiff-Appellee).

John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren,
OH 44484 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Jack Anthony Ferreri, Jr., appeals the decision of the

Trumbull County Court of Common Pleas, Domestic Relations Division, overruling his

Motion for Contempt Order, based on plaintiff-appellee, Christina Ferreri’s, interference

with his visitation rights. The issues before this court are whether a trial court errs by

failing to consider a transcript of proceedings before a magistrate where the parties

have stipulated to the factual record, and whether a trial court errs by refusing to hold a
party in contempt, where the party refused to allow visitation with a child’s grandparents

in lieu of scheduled visitation with the child’s father. For the following reasons, we affirm

the decision of the court below as modified.

       {¶2}   On October 21, 2010, the Trumbull County Court of Common Pleas,

Domestic Relations Division, issued a Decree of Divorce, terminating the marriage

between Christina and Jack Ferreri. One child was born as issue of the marriage. With

respect to the care and custody of the child, the parties stipulated to a Shared Parenting

Plan, which provides in relevant part:

       {¶3}   Both Mother and Father shall be designed the Residential Parents

              of the minor child * * * under the Shared Parenting Plan, and each

              shall be designated the Residential Parent when the child is in the

              physical possession of the respective parent. The Mother shall be

              designated Residential Parent for school and medical purposes.

              The Mother and Father agree that the Mother shall be Residential

              Parent while she is in the possession of the minor child, and

              excepting the [specified] times when the Father will be in

              possession of the minor child. * * * In the event a parent is not

              available for the pick-up/drop-off to exchange the child for parenting

              time, a relative known to both parties shall provide transportation.

       {¶4}   On April 20, 2012, Jack filed a Motion to Show Cause and for Contempt

Order. Jack claimed that Christina had denied him parenting time under the Shared

Parenting Plan, which provided that he “shall enjoy parenting time with the child each

Tuesday at 5:00 p.m. through the following Wednesday, at which time the Father shall




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return the child to the Mother at 8:15 p.m.” According to the Motion to Show Cause,

Christina denied Jack parenting time commencing on the following Tuesdays: January

31, 2012; February 28, 2012; March 6, 2012; and March 27, 2012.

       {¶5}   On October 30, 2012, an evidentiary hearing was held before a magistrate

of the domestic relations court.

       {¶6}   On December 5, 2012, the following Magistrate’s Decision was issued:

       {¶7}   The parties agree & stipulate that Defendant did not receive

              parenting time on the 4 occasions which he alleged in his Contempt

              Motion. They further agree & stipulate that Defendant was out of

              the State on each of the said 4 occasions and that he was unable

              to exercise his parenting time.

       {¶8}   Deft argues that since the [Shared Parenting] Plan provides that a

              3rd party may pick-up and drop off the child for companionship

              purposes, that party (paternal grandparents) has the right to

              companionship with the child even when the Deft is not available.

       {¶9}   Plt argues that the shared parenting plan does not provide for 3rd

              party companionship to be exercised when the Deft-father is out of

              state & unavailable to exercise companionship.      Therefore, [the

              plaintiff] cannot be found in contempt for allegedly violating the

              Shared Parenting Plan.

       {¶10} On the same date, the domestic relations court approved the Magistrate’s

Decision and denied Jack’s Motion for Contempt: “The parties[’] shared parenting plan

specifically provides Defendant/Father with liberal times when he can visit his child.




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Those times cannot be transferred to a third (3rd) party when Defendant is out of town

without an agreement of the parties or Court Order.”

       {¶11} On December 18, 2012, Jack filed Objections to the Magistrate’s Decision.

Jack raised two arguments. The first was that, under the Parenting Plan, “each [party]

shall be designated the Residential Parent when the child is in the physical possession

of the respective parent.” Jack asserted that, as a residential parent, he could direct

who has possession of the child during his parenting time. The second argument was

that the magistrate “failed to acknowledge the fact that Plaintiff denied Defendant’s

parenting time without even knowing for sure whether Defendant would be present.”

       {¶12} On December 26, 2012, the domestic relations court issued a Judgment

Order, stating that (1) “[t]he Objections are overruled on the Merits,” and (2) “the

objecting party has failed to file the transcript or affidavit with the court within thirty (30)

days after filing objections.”     The court also reiterated its prior ruling that Jack’s

parenting time could not be transferred to a third party if he is unavailable to take

possession of the child.

       {¶13} On January 15, 2013, the domestic relations court issued an Amended

Judgment Order, correcting the date of the Magistrate’s Decision which was misstated

in the December 26 Order.

       {¶14} On January 17, 2013, Jack filed a Notice of Filing Transcript, stating that

the transcript of the October 30, 2012 hearing before the magistrate is timely filed, “as it

is being made on January 17, 2013.”

       {¶15} On January 18, 2013, the transcript of the October 30, 2012 hearing

before the magistrate was filed in the domestic relations court.




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       {¶16} On January 25, 2013, Jack filed a Notice of Appeal. On appeal, Jack

raises the following assignments of error:

       {¶17} “[1.] The trial court erred to the prejudice of Appellant by denying his

Objections to the Magistrate’s Decision based upon the alleged failure of Appellant to

file timely a transcript of proceedings, when such transcript was filed in a timely manner

and was available for review by the trial court.”

       {¶18} “[2.] The trial court erred to the prejudice of Appellant by failing to

acknowledge his parental rights and refusing to find Appellee in contempt, where

Appellee willfully and intentionally denied physical possession and parenting time to

Appellant.”

       {¶19} Decisions in contempt proceedings are within a court’s discretion and will

not be reversed by a reviewing court absent an abuse of that discretion. State ex rel.

Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981); Denovchek v. Bd. of

Commrs. of Trumbull Cty., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988) (“since the

primary interest involved in a contempt proceeding is the authority and proper

functioning of the court, great reliance should be placed upon the discretion of the trial

judge”).

       {¶20} In the first assignment of error, Jack argues the domestic relations court

erred by ruling on his objections before the thirty-day period for filing the transcript in

support of his objections had lapsed and by basing its ruling on the failure to file timely

objections. We find no reversible error.




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       {¶21} The Civil Rules provide that objections to a magistrate’s factual findings

“shall be supported by a transcript of all the evidence submitted to the magistrate * * *

within thirty days after filing objections.” Civ.R. 53(D)(3)(b)(iii).

       {¶22} In the present case, the only factual findings made at the hearing on

Jack’s Motion for Contempt were the two stipulations agreed to by the parties, i.e., that

on four occasions Christina did not allow Jack parenting time and that, on each of these

occasions, Jack was not present in Ohio. Beyond these stipulated facts, no evidence or

testimony was presented at the hearing. The hearing transcript consists solely of the

stipulated facts and argument by counsel.

       {¶23} In his Objections, Jack argued that the magistrate failed to consider

Christina’s uncertainty as to whether Jack was available to exercise his parenting time.

However, this was not a factual finding of the magistrate and, as indicated, no testimony

was received on this (or any other) issue.

       {¶24} Since the magistrate made no factual findings, a transcript of the evidence

was not necessary for the domestic relations court to rule on Jack’s Objections.

       {¶25} Jack argues that the domestic relations court improperly overruled the

Objections based on his failure to timely file a transcript. Jack misrepresents the court’s

Order, which unequivocally stated that the “Objections are overruled on the Merits,” and

further explained that, under the Shared Parenting Plan, parenting time could not be

exercised by a third party without the parties’ agreement or a court order. This decision

is fully supported by the stipulated facts and the terms of the Shared Parenting Plan.

       {¶26} Jack is also incorrect that the transcript was timely filed.      Although a

Notice of Filing was filed on January 17, 2013, the transcript itself is time-stamped




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January 18, 2013, which is outside the thirty-day period provided by Civil Rule 53. The

filing date of January 18, 2013, is further corroborated by the domestic relations court’s

docket.

       {¶27} Although the trial court overruled Jack’s Objections prior to the expiration

of the thirty-day period and prematurely noted that the transcript was not timely filed,

these errors did not prejudice Jack and do not constitute grounds for reversing the

court’s decision.

       {¶28} The first assignment of error is without merit.

       {¶29} In the second assignment of error, Jack argues that the terms of the

Shared Parenting Plan provide that he “will have possession of the minor child” each

Tuesday and that Christina willfully denied him such parenting time on four occasions.

Jack further argues that, as the residential parent during his parenting time, he “is

responsible for making parenting decisions * * * regarding who will spend time with the

minor child when and if [he] is unavailable for any reason.” Thus, the domestic relations

court was obligated to hold Christina in contempt. We agree.

       {¶30} Under Ohio law, “‘shared parenting’ means that the parents share, in the

manner set forth in the plan for shared parenting * * *, all or some of the aspects of

physical and legal care of their children.” R.C. 3109.04(K). “[I]f an order is issued by a

court pursuant to this section and the order provides for shared parenting of a child,

both parents have ‘custody of the child’ or ‘care, custody, and control of the child’ under

the order, to the extent and in the manner specified in the order.” R.C. 3109.04(L)(5).




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       {¶31} The Shared Parenting Plan provides that Christina and Jack “share

parental responsibility and shall retain full parental rights and responsibilities with

respect to the minor child”:

       {¶32} Flexibility in child-care responsibilities and involvement are to be

              encouraged and the terms of this plan are to be liberally interpreted

              to allow the child the maximum benefit to be derived from the love,

              concern, and care of both parents. * * * [E]ach [parent] shall be

              designated the Residential Parent when the child is in the physical

              possession of the respective parent. * * * The Father shall * * *

              enjoy parenting time with the child each Tuesday at 5:00 p.m.

              through the following Wednesday, at which time the Father shall

              return the child to the Mother at 8:15 a.m. * * * In the event a

              parent is not available for the pick-up/drop-off to exchange the child

              for parenting time, a relative known to both parties shall provide

              transportation.

       {¶33} In the present case, the domestic relations court interpreted the Shared

Parenting Plan in a manner contrary to Ohio law and the terms of the Plan. According

to the Revised Code and the Shared Parenting Plan, Jack retains full parental rights

regardless of whether the minor child is in his physical possession. That includes the

right to entrust the temporary custody of the minor child to third parties, such as, in the

present case, the paternal grandparents. There is no difference between this situation

and the situation where the minor child attends school or spends the night at a friend’s

house during one of the parties’ parenting time. Jack’s right to exercise his parenting




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time as he determines best does not depend upon his physical possession of the child.

Rather, it is expressly conferred by the terms of the Shared Parenting Plan itself.

       {¶34} The domestic relations court and Christina would deny Jack parenting

time when he is not physically present to take possession of the child. This position has

no foundation in the Shared Parenting Plan. The Plan provides that Jack is designated

residential parent when he has physical possession of the child and that a third-party

may take possession when a parent is not available.             Possession is commonly

understood as the “right under which one may exercise control over something.”

Black’s Law Dictionary 1201 (8th Ed.2004); see Bechara v. Essad, 7th Dist. Mahoning

No. 03 MA 34, 2004-Ohio-3042, ¶ 76-77 (the situation could not be explained “any

better” than by stating: “when either party exercises parenting time, that parent is free to

determine the third party child care for the child”).     By providing for his parents to

exercise his parenting time, this is exactly what Jack was seeking to accomplish. To

hold that each parent has to have physical possession to exercise parenting time would

mean that a court order would be necessary every time the child was away for such

activities as camp or a sleepover.

       {¶35} Finally, the domestic relations court’s interpretation of the Shared

Parenting Plan encourages parents to attempt to manipulate the situation, rather than

foster flexibility and cooperation between parents, i.e., “the maximum benefit to be

derived from the love, concern, and care of both parents.” This is inconsistent with the

purpose of a Shared Parenting Plan as it relates to the best interest of the child, given

that a factor to be considered in adopting such a plan is “[t]he ability of the parents to

cooperate and make decisions jointly, with respect to the children.”                   R.C.




                                             9
3109.04(F)(2)(a). In the present case, Christina was aware that Jack was not present in

Ohio to directly exercise his parenting time.    Rather than seeking to accommodate

Jack’s situation, Christina completely denied him parenting time.         Such behavior

provides a parent in Jack’s situation no incentive to be forthcoming or open about the

way in which he or she intends to exercise his or her parenting time.

       {¶36} Although we find that the domestic relations court erred in interpreting the

Shared Parenting Plan to allow Christina to deny Jack parenting time, the court was

nevertheless within its discretion to not to find her in contempt. “[T]he primary purpose

of contempt proceedings is to preserve the authority and proper functioning of the

court.” Tippie v. Patnik, 11th Dist. Geauga No. 2005-G-2665, 2006-Ohio-6532, ¶ 32. In

the present case, Christina’s conduct was consistent with the lower court’s erroneous

interpretation of the Shared Parenting Plan and did not undermine the court’s authority.

Moreover, until challenged, there was no occasion to interpret the Shared Parenting

Plan on this issue.

       {¶37} The second assignment of error is without merit.

       {¶38} For the foregoing reasons, the decision of the Trumbull County Court of

Common Pleas, Domestic Relations Division, overruling Jack’s Motion for Contempt, is

modified to allow either parent to transfer custody of the minor child to a third-party

when that parent is out of town. In all other respects, the judgment of the lower court is

affirmed. Costs to be taxed against the parties equally.



THOMAS R. WRIGHT, J., concurs,

CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a
Concurring/Dissenting Opinion.



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                              _________________________



CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a
Concurring/Dissenting Opinion.

       {¶39} While I agree with the majority that the two assignments of error lack merit

and the trial court did not err in overruling Appellant’s Motion for Contempt, I find the

majority’s proposed modification of the trial court’s order improper. I therefore

respectfully concur in part and dissent in part from the majority opinion.

       {¶40} The majority’s conclusion that the trial court erred in interpreting the

Shared Parenting Plan is a substitution of its interpretation for that of the trial court. The

decision to modify the Trumbull County Domestic Court’s entry overruling appellant’s

Motion for Contempt is a usurpation of the trial court’s authority.           The proposed

modification is a modification of the Shared Parenting Plan, not the contempt decision.

       {¶41} We review contempt decisions under an abuse of discretion standard.

Hague v. Hague, 11th Dist. Ashtabula No. 2008-A-0069, 2009-Ohio-6509, ¶23. The

Shared Parenting Plan at issue did not specifically provide for the transfer of parenting

time to a third party when the parent entitled to the parenting time was unavailable.

Both parties stipulated that appellant was unavailable. The trial court was acting within

its discretion in denying appellant’s motion for contempt under the facts before it.

       {¶42} As the Shared Parenting Plan at issue did not have a right of first refusal

for additional parenting time if the other party is unavailable, the trial court’s conclusion

that appellant’s parenting time could not be transferred to a third party when appellant is

out of town on business was essentially an award of additional parenting time to



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appellee.    Cavagnaro v. Cavagnaro, 12th Dist. Warren No. CA2012-02-012, 2012-

Ohio-4024.     The majority finds the trial court erred in reaching its decision on the

contempt by improperly granting appellee additional parenting time. I believe this issue

is outside the scope of the contempt motion. It is another matter for the trial court to

decide, but it is not an issue before this court under the current appeal.

       {¶43} When ordering a modification of parenting time, the court must consider

the enumerated factors in R.C. 3109.051(D), which include any other factor in the

child’s best interest. R.C. 3109.051(D)(16). An appellate court is not in a position to

analyze these factors, and it is an abuse of our authority to modify a contempt decision

to interpret and modify a Shared Parenting Plan. Therefore, I respectfully dissent as to

the proposed modification.




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