[Cite as Schutz v. Schutz, 2017-Ohio-695.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 CRYSTAL SCHUTZ, nka MILLER                        :
                                                   :
         Plaintiff-Appellant                       :   Appellate Case No. 2016-CA-6
                                                   :
 v.                                                :   Trial Court Case No. 10DIS857
                                                   :
 ASHLEY SCHUTZ                                     :   (Appeal from Domestic Relations
                                                   :   Court)
         Defendant-Appellee                        :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 24th day of February, 2017.

                                              ...........

CRYSTAL SCHUTZ, nka MILLER, 1417 East Market Street, Logansport, Indiana 46947
    Plaintiff-Appellant-Pro Se

JEREMY M. TOMB, Atty. Reg. No. 0079554, 124 West Main Street, Troy, Ohio 45373
     Attorney for Defendant-Appellee

                                             .............




WELBAUM, J.
                                                                                             -2-




       {¶ 1} This case involves a pro se appeal from an order finding Appellant, Crystal

Schutz nka Miller (“Crystal”) in contempt and changing custody of the parties’ two minor

children, A.S. and E.S. from Crystal to Appellee, Ashley Schutz.1

       {¶ 2} In support of her appeal, Crystal contends that the trial court abused its

discretion by finding a change of custody was in the children’s best interests and by

accepting the testimony and report of the Guardian ad Litem (“GAL”) when the GAL’s

report fell below minimum standards in Sup.R. 48(D)(13). In addition, Crystal argues

that the trial court erred by failing to find Ashley in contempt, by finding her in contempt,

and by ignoring the testimony of Crystal’s expert witness. Finally, Crystal contends that

the trial court erred by imputing income to her for purposes of child support and with

respect to interim orders that it entered.

       {¶ 3} After reviewing the record, including the transcript of the two-day evidentiary

hearing, we conclude that Crystal’s assignments of error are without merit. Accordingly,

the judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 4} The parties to this case separated in March 2010, and their divorce decree

was granted in January 2011.        While the divorce was pending, Ashley and Crystal

parented the children on an equal-time basis. The separation agreement, which was

incorporated in the final decree, designated Crystal as legal custodian and residential



1 For convenience, we will refer to the parties by their first names, and for privacy will
refer to the parties’ minor sons by their initials.
                                                                                          -3-


parent, but awarded no child support due to the fact that the parties were equally sharing

the children’s care. The agreement further provided that each party was entitled to

complete information/records from doctors and other providers, and to complete

information from any teachers, school officials and copies of all reports pertaining to the

children. Each party was also required to keep the other fully advised of all school

events/activities. At the time, both parties were residing in the same area, but the decree

also stated that if Crystal relocated outside Versailles, Ashley would be entitled to the

Darke County Standard Order of Visitation.

       {¶ 5} The agreement also provided that the parties would discuss and cooperate

on matters relating to their children’s welfare, health, and education, “realizing that their

general welfare is of paramount importance. To that end, each party will encourage the

other to respect, honor, and love the other party.” Doc. #3, Separation Agreement, p.3.

       {¶ 6} Crystal remarried about a month after the divorce decree was entered, and

then filed a notice of intent to relocate to Union, Indiana, in March 2011, based on her

new husband’s employment. This initial move was about an hour away from Ashley.

       {¶ 7} In October 2012, Crystal filed another notice of intent to relocate to

Logansport, Indiana, again based on her husband’s employment. Shortly thereafter,

Ashley filed a motion for reallocation of parental rights and for temporary and permanent

custody of the children. The motion alleged that due to the distance, Ashley was unable

to exercise parenting time without a six-hour roundtrip with the children. There were also

concerns about Crystal’s removal of the children from school. The motion further alleged

that after Ashley had learned about the removal, he had convinced Crystal to place A.S.

back in public school. However, she refused to enroll E.S. in public school. At the time,
                                                                                        -4-


the children were ages six and five, respectively.2

       {¶ 8} Ashley expressed concern about E.S’s ability to develop social skills, and

about whether E.S. was receiving physical therapy, occupational therapy, and speech

therapy. In addition, Crystal allegedly had refused to provide Ashley with information

about the children’s schools, academic progress, or pediatric appointments.

       {¶ 9} In July 2013, the parties filed an agreed entry maintaining Crystal as

residential parent and legal custodian. During the school year, Ashley was to have

parenting time pursuant to the county’s standard schedule, and during the summer, the

parties would exercise parenting on alternating weeks. Ashley was also ordered to pay

child support. The entry further provided that all prior orders would remain in effect

unless otherwise modified.

       {¶ 10} Subsequently, on March 20, 2015, Ashley filed a motion for contempt

against Crystal, alleging that she had interfered with his visitation and had alienated his

parenting time without his consent. The same day, Ashley filed a motion for custody or

in the alternative, a motion to modify parenting time. In the motion, Ashley alleged that

the children were being home-schooled and that it was in their best interest to receive

educational training by professionally trained and certified educators, particularly since

E.S. had special needs.      Ashley further alleged that E.S.’s therapy was currently

unknown, that he had reason to believe the children were not getting the care and

attention they needed, and that Crystal had been unilaterally altering his parenting time.

       {¶ 11} The trial court set a hearing on the contempt motion and appointed the



2 A.S. was born in December 2007, and E.S. was born in June 2007. E.S. had been
diagnosed with autism.
                                                                                         -5-


same GAL who had been appointed in connection with the parenting motion filed in 2012.

In July 2015, Crystal filed a motion to increase child support, and for contempt, based on

Ashley’s alleged failure to reimburse her for expenses. The trial court set a hearing for

October 13, 2015, and, after taking testimony, continued the hearing to November 2,

2015, where additional testimony was received. At the hearings, the magistrate heard

testimony from the following witnesses: Crystal; Cary Miller (Crystal’s husband); Ashley;

Danielle Schutz (Ashley’s wife); Melissa Johnson, the director of Engaging Minds (a

therapy center E.S. attended); and Camille Harlan, the GAL (who recommended that

custody of the children be granted to Ashley).

       {¶ 12} In December 2015, the magistrate issued a decision and order

recommending that custody be changed to Ashley. Among other things, the magistrate

found that Crystal had not encouraged Ashley’s relationship with the children and had not

provided Ashley with basic information he needed as a parent, such as her decision to

home-school them and to change E.S.’s therapy providers without telling Ashley. The

magistrate additionally found that Crystal had failed to provide information to Ashley about

therapy so that both homes provided similar environments for E.S., and that this was not

in E.S’s best interest. Furthermore, the magistrate concluded that the children had not

adjusted to their school or community, were isolated in their mother’s home, and that all

their extended family (maternal and paternal) resided in Ohio.

       {¶ 13} The magistrate also found Crystal in contempt for failure to permit parenting

time as ordered, but ordered no sanctions. Finally, the magistrate overruled Crystal’s

contempt motion.

       {¶ 14} Crystal filed objections to the magistrate’s decision, and filed supplemental
                                                                                        -6-


objections after the transcript was filed in May 2016. In the meantime, on February 2,

2016, the trial court granted Ashley’s motion to implement the magistrate’s order on an

interim basis. The trial court concluded that effective February 5, 2016, Ashley would be

designated as the residential and custodial parent. Ashley was directed to promptly

enroll the children in a traditional school setting and notify Crystal. He was also ordered

to promptly arrange for therapy as recommended by the school and other therapists, and

to notify Crystal.   Crystal was given standard parenting time with certain extended

intervals in the summer, and was designated as the child support obligor. The parties

were also ordered to sign up for the Family Wizard software.

       {¶ 15} On March 28, 2016, Crystal filed a motion to vacate the interim order, based

on the contention that it had expired. The trial court overruled the motion in April 2016,

stating that the court had anticipated the objection process would be completed more

expeditiously and had inadvertently not extended the interim order after 28 days. The

court concluded that it was not in the children’s interest to be moved back and forth

between their parents’ homes multiple times while objections were pending, and imposed

the same order as before. The court again extended the same order on its own motion

in May 2016.

       {¶ 16} On June 28, 2016, the trial court overruled Crystal’s objections to the

magistrate’s decision, and adopted the magistrate’s decision as its order. Crystal then

appealed, pro se, from the trial court’s decision.



                                  II. Change of Circumstances

       {¶ 17} Crystal’s First Assignment of Error states that:
                                                                                      -7-


             The Trial Court Erred and Abused Its Power in Finding a Change of

      Circumstance Warranting a Reallocation of Custody and Determining It Is

      in the Best Interest of the Minor Children that Defendant Be Awarded

      Custody.

      {¶ 18} Under this assignment of error, Crystal contends that there was no change

of substance that would merit alteration of custody. As pertinent to this case, R.C.

3109.04(E)(1)(a) provides that:

             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:

             ***

             (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.

      {¶ 19} The Supreme Court of Ohio has said that a substantial change of

circumstance is not required under this statute. Instead, “there must be a change of

circumstances to warrant a change of custody, and the change must be a change of
                                                                                           -8-

substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d

415, 418, 674 N.E.2d 1159 (1997). The court further stressed that “[i]n determining

whether a ‘change’ has occurred, we are mindful that custody issues are some of the

most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge

must have wide latitude in considering all the evidence before him or her * * * and such a

decision must not be reversed absent an abuse of discretion.” (Citation omitted.) Id.

       {¶ 20} “An abuse of discretion means that the trial court's decision is

unreasonable, arbitrary or unconscionable.” Miller v. Remusat, 2d Dist. Miami No. 07-

CA-20, 2008-Ohio-2558, ¶ 32, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 21} In reviewing trial court decisions, appellate courts must also give deference

to a trial court’s findings, because “ ‘the trial judge is best able to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’ ” Davis at 418, quoting Seasons Coal

Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶ 22} Crystal argues that no change of substance occurred because the children

performed academically, were happy, maintained good relationships with siblings, and

had good relationships with their parents. The magistrate and trial court found a change

of circumstances based on the children’s change from public schooling to home

schooling; the change in E.S.’s autism counseling; A.S.’s changing mental health issues

and socialization circumstances; and “continuing and increasing relationship difficulties

between the parties which frustrate effective parenting.” Judgment Entry – Plaintiff’s

Objections to Magistrate’s Decision, Doc. #132, pp. 2-3. There is more than ample
                                                                                       -9-


evidence in the record to support the trial court’s decision.

       {¶ 23} When the parties were divorced in 2011, parenting time was on an

essentially equal distribution, but this was disrupted by Crystal’s move to Indiana. After

Crystal moved, a pattern of lack of communication and unilateral decision-making on her

part developed. When Ashley filed a motion about these matters in 2012, the GAL (who

was the same one appointed for the 2015 motion) recommended that the children

continue to stay with Crystal.    The GAL testified at the 2015 hearing that her prior

recommendation was based on the fact that Crystal had recently moved to Logansport,

Indiana, had enrolled A.S. in public school, and was going to enroll E.S. in public school

when he was eligible. In addition, E.S. had not previously had therapy for his autism,

and had just begun therapy three days a week at Hopebridge. This was a provider

recommended by the Riley Child Development Center, Indiana University Hospitals,

where E.S. was evaluated and diagnosed as having an autistic spectrum disorder in

November 2012. Hopebridge was fully paid for through insurance and Medicaid.

       {¶ 24} Consistent with the GAL’s recommendation, an agreed entry was filed in

July 2013 designating Crystal as the residential parent and legal custodian, and providing

Ashley with the county’s standard order of parenting time during the school year. After

that time, Crystal made many decisions that detrimentally affected the children without

consulting or even notifying Ashley, and the lack of communication about the children’s

educational and medical situations exacerbated.         As one example, after the 2013

proceedings, Ashley agreed to follow a gluten-free, casein-free, no sugar, no red dye diet

for E.S. if he could speak to E.S.’s doctor. E.S. had been placed on this diet without

Ashley’s knowledge or consent. At the meeting with the doctor, Crystal became upset,
                                                                                        -10-


called Ashley a “sperm donor,” and flipped him off. These actions took place while E.S.

and A.S. were present. Crystal also admitted that she may have called Ashley a “jerk”

at times in front of her children, although she said she did not “routinely” do so. In

addition, Crystal reported Ashley’s employer to the Better Business Bureau after a delay

in processing a child support payment, and this caused him problems at work.

      {¶ 25} Furthermore, Crystal removed A.S. and E.S. from public school and placed

them in an online public school program that was conducted at home.            Again, this

decision was made without Ashley’s knowledge or consent. The GAL noted that this

was done primarily to accommodate E.S.’s therapy and Crystal’s schedule. According

to the GAL, Crystal told her that she was overwhelmed by having A.S. in a regular public

school, by having E.S. on a split schedule between public school and therapy, and by

having two younger children, all with no support system.

      {¶ 26} The GAL’s statements were buttressed by Crystal’s testimony, which

indicated that, prior to Crystal’s decision to begin home schooling, E.S. had begun public

school (in a brick and mortar setting), and was doing fine in school. At that time, Crystal

would send A.S. and E.S. to public school on the bus at 7:00 a.m.     She would then pick

up E.S. at 11:00 a.m. to take him to Hopebridge, which was a half hour away, for therapy.

She would wait for E.S. to finish therapy and rush back to beat the bus home for A.S.

Crystal had two other small children from her second husband (a daughter born in

November 2011 and a son born in February 2014), who had to be transported to these

sessions. Crystal had no family support in the area.3


3 Both the paternal and maternal grandparents, as well as most other family relatives, live
in the area where Ashley lives, which is about three hours away from Crystal’s home in
Indiana.
                                                                                       -11-


      {¶ 27} In December 2014, Crystal also switched E.S. from Hopebridge to another

therapy provider, Engaging Minds (“EM”). EM was a facility that was not fully covered

by insurance and did not qualify for reimbursement from Medicaid.         Crystal did not

discuss the change in providers with Ashley, nor did she notify him that it had occurred.

      {¶ 28} Any information that Ashley was able to obtain about the children’s

schooling or medical situations required a process of applying to court for subpoenas or

learning after the fact about events from his children. For example, A.S. received a

severe burn while making breakfast for the children while Crystal was sleeping. Crystal

did not notify Ashley about this; he only learned of it when A.S. came for parenting time

and was panicked because he had forgotten his burn cream.

      {¶ 29} The following exchange describes Crystal’s attitude toward providing

Ashley with any information about their children:

             Q. Okay. Do you think that it’s in your children’s best interest for

      you to forward information about their treatment and their education to their

      father?

             A. I believe I already answered that.

             Q. What’s your answer.

             A. My answer is that if he wants the information, he should obtain

      it.

             Q.   Here’s where our disconnect is.      The disconnect is I’m not

      asking anything about your personal relationship. This Court is going to

      make a decision solely based upon the best interest of your children not

      based upon your communications, not based upon what he should do or
                                                                                          -12-


       what you should do.

              So what I’m asking is in the best interest of your children, do you not

       think that it would be beneficial for you to send that information to Ashley?

              A. I don’t have an opinion one way or the other.

Transcript of Proceedings, Vol. II, p. 442.

       {¶ 30} The record further indicates that the children were isolated in Crystal’s

home, were not enrolled in extra-curricular activities, and did not have friends with whom

they interacted at home. The GAL was particularly concerned about their isolation and

lack of socialization. Accordingly, the trial court’s finding of a change in circumstances

is supported by a great deal of evidence, as well as by the recommendation of the GAL,

who concluded that Ashley should have custody of the children.

       {¶ 31} Under this assignment of error, Crystal further contends that even if the

“best interests” test in R.C. 3109.04(F) applies due to a finding of a change of

circumstances, the trial court erred by failing to consider the children’s relationship with

their half-siblings and the fact that Ashley was allegedly $1,800 in arrears in child support

when he filed the motion for custody in March 2015. Additionally, Crystal argues that the

trial court had no evidence that Ashley was the parent more likely to facilitate support,

and that the court’s finding that she was inconsistent and unreliable in medical decisions

was against the manifest weight of the evidence. Crystal further argues that the trial

court was precluded from considering her refusal to vaccinate E.S. and her two younger

children (and thereby exposing them to multiple childhood illnesses) because it was a

religious decision.

       {¶ 32} As was noted, R.C. 3109.04(E)(1)(a) requires trial courts to find that
                                                                                         -13-


modification of a prior decree allocating parental rights and responsibilities “is necessary

to serve the best interests of the child.” R.C. 3109.04(F) states that in determining the

best interest of a child, “the court shall consider all relevant factors, including but not

limited to” various factors set out in R.C. 3109.04(F)(1)(a)-(j). The factors potentially

pertinent to this case include:

              (a) The wishes of the child's parents regarding the child's care;

              ***

              (c) The child's interaction and interrelationship with the child's

       parents, siblings, and any other person who may significantly affect the

       child's best interest;

              (d) The child's adjustment to the child's home, school, and

       community;

              (e) The mental and physical health of all persons involved in the

       situation;

              (f) The parent more likely to honor and facilitate court-approved

       parenting time rights or visitation and companionship rights;

              (g) Whether either parent has failed to make all child support

       payments, including all arrearages, that are required of that parent pursuant

       to a child support order under which that parent is an obligor;

              ***

              (i) Whether the residential parent or one of the parents subject to a

       shared parenting decree has continuously and willfully denied the other

       parent's right to parenting time in accordance with an order of the court;
                                                                                            -14-


              (j) Whether either parent has established a residence, or is planning

       to establish a residence, outside this state.

       {¶ 33} In its decision, the trial court placed particular reliance on R.C.

3109.04(F)(1)(c), (d), and (f), noting that “the transcript is telling regarding the Plaintiff’s

frequent frustration of the Defendant’s parenting time and his relationship with the

children, such as (1) failing to honor parenting time orders; (2) failing to communicate the

children’s circumstances regarding school and counseling; and (3) unilateral decision-

making that reduced the Defendant’s ability to support and assist the children.”

Judgment Entry – Plaintiff’s Objections to Magistrate’s Decision, Doc. #132, p. 3. The

court also observed that Crystal had inconsistent medication and decision-making

processes. Id. There is substantial evidence in the record supporting these findings.

       {¶ 34} R.C. 3109.04(F)(1)(c) pertains to interaction with parents, siblings, and

others who may affect the child’s best interests.        The trial court did not specifically

mention the half-siblings, but the court was not required to explicitly detail a long list of

persons who may or may not interact with the children and address each one. The court

placed particular emphasis on the relationship of the children with their father, which

Crystal had attempted to hinder. Furthermore, the record indicates that Crystal and her

husband argue in front of the children and that this was a stressor for A.S., who brought

it up during a counseling session; that Ashley and his wife do not argue in front of the

children; that A.S. had expressed the belief that his younger sister received preferential

treatment in his mother’s home; that A.S. had expressed concern during counseling about

his stepfather’s anger; that there are no family members near Crystal; and that there are

numerous family members, both paternal and maternal, in the area where Ashley lives.
                                                                                          -15-


Accordingly, the trial court’s decision that modification of custody is in the best interests

of the children is supported by more than ample evidence.

       {¶ 35} In addition, the GAL noted that she had observed the children in both homes

and that there was a significant difference in how E.S. acted at Ashley’s home as opposed

to Crystal’s home. At Ashley’s home, E.S. showed a dramatic improvement in his play,

eye contact, and ability to communicate over when she had previously observed him.

Conversely, at Crystal’s home, E.S. displayed arm-flapping, lack of attention span, and

lack of eye contact. The difference was so marked that the GAL asked the court for a

continuance so she could again observe E.S. at his father’s house. During this visit,

which was much longer than the first visit to Ashley’s home, the GAL’s observations

confirmed what she had previously seen, i.e., that E.S. showed a dramatic improvement

at his father’s house, but not at his mother’s house.

       {¶ 36} As to alleged child support arrearages or motions filed to that effect, the

record does not indicate any arrearages, and Crystal did not raise this issue at trial or in

objecting to the magistrate’s decision. With respect to issues about which parent is more

likely to facilitate visitation, the record is clear that Ashley was the parent who was more

likely to do so.

       {¶ 37} Finally, Crystal contends that the trial court’s judgment was improperly

based on her refusal to vaccinate the children for religious reasons. As Crystal notes,

the Supreme Court of Ohio has issued a decision regarding a domestic relations court’s

consideration of religious doctrine. In Pater v. Pater, 63 Ohio St.3d 393, 588 N.E.2d 794

(1992), the court said that “a domestic relations court may consider the religious practices

of the parents in order to protect the best interests of a child.” Id. at 395, citing Birch v.
                                                                                           -16-

Birch, 11 Ohio St.3d 85, 463 N.E.2d 1254 (1984). However, the court also stressed that

“the United States Constitution flatly prohibits a trial court from ever evaluating the merits

of religious doctrine or defining the contents of that doctrine.” (Citation omitted.) The

court, therefore, reversed a custody award that was based solely on a parent’s religious

beliefs. Id. at 395-396.

       {¶ 38} The case before us does not involve such a situation.             In Pater, the

mother’s religious practices were “the major issue” in the case. Id. at 393. In fact, the

trial court refused to allow the mother visitation rights if she were “going to teach the child

her religion [Jehovah’s Witnesses] or take the child to Kingdom Hall.” Id. at 395.

       {¶ 39} In contrast to Pater, the trial court did not even mention the vaccination

issue in its decision. Furthermore, while the magistrate mentioned that Ashley was

concerned about the lack of vaccinations for E.S. and Crystal’s younger children, the

magistrate did not base her decision on this point. As was noted, Crystal’s actions

regarding medications were inconsistent, and any comments on this in the magistrate’s

decision were simply a recounting of the testimony and perhaps an indication of lack of

credibility – or inconsistency in medical decisions, not a ruling on religious preferences.

       {¶ 40} Based on the preceding discussion, the First Assignment of Error is

overruled.



                                III. Alleged Error Regarding GAL

       {¶ 41} Crystal’s Second Assignment of Error states that:

              The Magistrate Erred and Abused Its Power by Accepting the

       Testimony     of    Guardian    Ad    Litem    and    Adopting     the    GAL’s
                                                                                          -17-


       Recommendations as the Magistrate’s Order, as the Report Fell Far Below

       the Minimum Standards Outlined in Sup.R. 48(D)(13).

       {¶ 42} Under this assignment of error, Crystal argues that the GAL failed to comply

with Sup.R. 48(D)(13) by not meeting with Crystal and the children at Crystal’s residence;

by failing to contact school providers and therapists; and by failing to recommend testing

that night be necessary. Crystal also argues that the GAL was biased.

       {¶ 43} Crystal did not object at trial to the GAL’s testimony, nor did she object to

the GAL’s alleged failure to comply with Sup.R. 48(D)(13) in her original or supplemental

objections to the magistrate’s decision.

       {¶ 44} Civ.R. 53(D)(3)(b)(iv) states that “[e]xcept for a claim of plain error, a party

shall not assign as error on appeal the court's adoption of any factual finding or legal

conclusion, whether or not specifically designated as a finding of fact or conclusion of law

under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as

required by Civ.R. 53(D)(3)(b).” In such situations, we review for plain error only. Crain

v. Crain, 2d Dist. Clark No. 2011-CA-92, 2012-Ohio-6180, ¶ 15. “The plain error doctrine

permits correction of judicial proceedings when error is clearly apparent on the face of the

record and is prejudicial to the appellant.” (Citation omitted.) Reichert v. Ingersoll, 18

Ohio St.3d 220, 223, 480 N.E.2d 802 (1985). Accord In re C.N., 2d Dist. Montgomery

No. 27119, 2016-Ohio-7322, ¶ 55. However, use of this doctrine “is to be taken with

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Reichert at 223, citing State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶ 45} On review of the record, we find no error on the face of the record, nor do
                                                                                         -18-


we find any exceptional circumstances. Contrary to Crystal’s contention, the GAL did

observe the children at Crystal’s home. In addition, the GAL visited Ashley’s home twice

only to verify the dramatic difference between E.S. at the two residences. The GAL also

was the same guardian ad litem who had previously recommended that custody be

maintained with Crystal for stability purposes when the children were enrolled in a

traditional public school. No bias appears in the record. Furthermore, even if the GAL

failed to meet and interview school personnel or medical and mental health providers as

indicated by Sup.R. 48(D)(13)(g), the rule states that the GAL is to do the matters outlined

in the rule “unless impracticable or inadvisable because of the age of the child or the

specific circumstances of a particular case * * *.” (Emphasis added.)

       {¶ 46} In this case, the children’s providers were located approximately three hours

away from the court and the GAL, which would require a six-hour roundtrip for the GAL.

The GAL stated that she followed the procedures she normally does in any case, although

there was a little more involved in this case. In addition to the home visits, the GAL

reviewed the records provided by the attorneys, which included all discovery exchanged.

Moreover, the GAL sat in for the deposition of Melissa Johnson, E.S.’s behavioral

therapist from E M, and also sat through two days of trial, after which the GAL indicated

that her opinion as to appropriate custody of the children (with Ashley) had not changed.

The GAL’s testimony showed a high level of knowledge about the case, and we find no

exceptional circumstances or manifest injustice warranting the application of the plain

error doctrine. In fact, we find no error.

       {¶ 47} Accordingly, the Second Assignment of Error is overruled.
                                                                                           -19-


                             IV. Contempt Finding Against Crystal

       {¶ 48} For purposes of convenience, we will address the Fourth Assignment out of

order. This assignment of error provides that:

              The Trial Court Erred and Abused Its Power in Finding the Plaintiff in

       Contempt for Violation of Orders Involving Parenting Time.

       {¶ 49} Under this assignment of error, Crystal contends that the trial court’s finding

of contempt was an abuse of discretion because only one parenting time violation

occurred, and she did not willfully violate the court’s orders regarding parenting time.

       {¶ 50} Courts have certain inherent powers to ensure “the orderly and efficient

exercise of justice * * *.” (Citations omitted). Zakany v. Zakany, 9 Ohio St.3d 192, 194,

459 N.E.2d 870 (1984). These powers include “the authority to punish the disobedience

of the court's orders with contempt proceedings.” (Citations omitted.) Id.

       {¶ 51} “Civil contempt is a remedy whereby an aggrieved party to a lawsuit can

enforce a civil remedy and thereby protect its rights. * * * A finding of civil contempt

requires clear and convincing evidence that the alleged contemnor has failed to comply

with the court's prior orders. * * * In order to be clear and convincing, evidence must leave

the trier of fact with the firm conviction or belief that the allegations involved are true.

Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118.” (Citations

omitted.) Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268, 675 N.E.2d 1345

(2d Dist.1996).

       {¶ 52} We review trial court orders in contempt cases for abuse of discretion.

State v. Chavez-Juarez, 185 Ohio App.3d 189, 2009-Ohio-6130, 923 N.E.2d 670, ¶ 56

(2d Dist.). “A prima facie case of civil contempt is made when the moving party proves
                                                                                            -20-


both the existence of a court order and the nonmoving party's noncompliance with the

terms of that order.” (Citations omitted.) Wolf v. Wolf, 1st Dist. Hamilton No. C-090587,

2010-Ohio-2762, ¶ 4. Accord Hoagland v. Hoagland, 2d Dist. Miami No. 2014-CA-30,

2015-Ohio-2426, ¶ 6. “The burden then shifts to the nonmoving party to establish a

defense for its noncompliance.” Wolf at ¶ 4.

          {¶ 53} After reviewing the record, we find that the trial court did not abuse its

discretion in finding Crystal in contempt. Crystal’s own testimony indicates that she

made a unilateral decision to deprive Ashley of visitation and failed to communicate with

him prior to making her decision to remove the children from the area. Crystal also failed

to return Ashley’s calls about the missed parenting time and did not permit him any

communication with the minor children during the time he was supposed to have them.

Crystal may have thought her reasons were justified, but as with many other situations,

this was not her unilateral decision to make. Ashley was available and could have taken

care of the children. In fact, this would have assisted Crystal and the children. Instead

of being with Ashley, the children were required, along with their younger brother and

sister, to travel several hours so that Crystal could care for her brother.

          {¶ 54} As the trial court noted, “the transcript is telling regarding the Plaintiff’s

frequent frustration of the Defendant’s parenting time and his relationship with the children

* * *.”    Judgment Entry – Plaintiff’s Objections to Magistrate’s Decision, Doc. #132, p. 3.

The denial for which Crystal was held in contempt is just one example of her unilateral

and arbitrary decision-making regarding the children.          In addition, no sanction was

imposed against Crystal for the contempt.

          {¶ 55} “We have previously emphasized, and stress once again, that children have
                                                                                            -21-


certain rights, including ‘ “the right to love each parent, without feeling guilt, pressure, or

rejection; the right not to choose sides; the right to have a positive and constructive on-

going relationship with each parent; and most important * * * the right to not participate in

the painful games parents play to hurt each other or to be put in the middle of their

battles.” ’ ” Bell v. Bell, 2d Dist. Clark No. 97-CA-105, 1998 WL 288945, *1 (June 5,

1998), quoting Thomas v. Freeland, 2d Dist. Greene No. 97-CA-06, 1997 WL 624331,*3

(Oct. 10, 1997).

       {¶ 56} Accordingly, the Fourth Assignment of Error is overruled.



                     V. Alleged Error in Failing to Find Ashley in Contempt.

       {¶ 57} Crystal’s Third Assignment of Error states that:

              The Trial Court Erred and Abused Its Power by Failing to Find the

       Defendant in Contempt for Unpaid Medical Bills, Failure to Cooperate on

       Matters Relating to the Children’s Welfare, Health, and Education, and Not

       Taking the Minor Child, [E.S.], to Therapy.

       {¶ 58} Under this assignment of error, Crystal contends that the trial court abused

its discretion by failing to find Ashley in contempt for failing to pay for therapy bills, for

failing to take E.S. to therapy as required, and for failing to follow doctor’s orders regarding

diet and medication administration.

       {¶ 59} Again, we apply the standards recited above regarding contempt, including

that we review the trial court’s decision for abuse of discretion. Based on our review of

the record, this assignment of error has no merit. More importantly, the magistrate found

that Crystal did not come to court with clean hands. We agree.
                                                                                         -22-


       {¶ 60} We have noted that “ ‘[t]he clean hands doctrine is not a stranger in

domestic relations.’ ” (Citation omitted.) Gambill v. Gambill, 2d Dist. Miami No. 89-CA-

70, 1991 WL 10958, *2 (Jan. 31, 1991). “The unclean hands doctrine generally provides

that when a party takes the initiative to set in motion a judicial action in order to obtain

some remedy, the court will deny the remedy where the party seeking it has acted in bad

faith by his or her prior conduct.” (Citation omitted.) Gardner v. Bisciotti, 10th Dist.

Franklin No. 10AP-375, 2010-Ohio-5875, ¶ 15.

       {¶ 61} As was noted, Crystal made many unilateral and arbitrary decisions about

the children without notifying Ashley or providing him an opportunity to express a position.

Crystal also attempted to obstruct Ashley’s access to information about the children, to

the point that he had to subpoena documents to find out anything.

       {¶ 62} Crystal’s testimony at the hearing indicated that she had not yet paid any

therapy bills from EM, and there was a question whether payment would even be

required. Additionally, she unilaterally chose this provider, who was not covered by

Medicaid, without any input from Ashley. Crystal’s testimony also indicates that due to

issues with the therapy providers (not with Ashley’s willingness to schedule), compliance

with scheduling therapy in Ohio was impossible prior to the time that Ashley was given

custody. Basically, the Indiana and Ohio providers would not provide therapy if another

therapy provider was involved, and the Indiana therapist was the first one to render

services to E.S.

       {¶ 63} Finally, with respect to diet and medication, the evidence indicated that

Crystal chose to place the children on a gluten-free, sugar-free diet, again without

consulting Ashley or without having medical indications that this was necessary. In
                                                                                         -23-


addition, the undisputed testimony was that Crystal was not following the diet, having

permitted E.S. to eat candy, and A.S. to drink soda while in her care.

       {¶ 64} It is true that Ashley had reservations about giving A.S. Strattera medication

for A.S.’s alleged ADHD. However, the GAL testified that she could find no evidence in

the record of a therapist having diagnosed A.S. with ADHD. The GAL recommended

that comprehensive testing should be done to verify what appeared to have been

Crystal’s own self-diagnosis of a condition that Ashley disputed. Again, Crystal’s choice

to keep Ashley in ignorance of the children’s medical providers and records was a

preceding factor. Ashley and his wife (who is a registered nurse), both testified that they

did not observe any signs of ADHD in A.S., and that they were reluctant to administer a

medication that appeared to cause seizures.        Ashley also asked for a neurological

examination to verify a diagnosis, and Crystal had not complied with this request as of

trial. These concerns are documented in the record, and the trial court could properly

choose which party’s testimony to credit.

       {¶ 65} In this context, we note Crystal’s recitation of the magistrate’s finding that

the parties’ separation agreement provided that they were to discuss and cooperate on

all matters relating to their children’s welfare, health, and education. Brief of Appellant,

p. 11. According to Crystal, “[a]s the appellant [Crystal] was the custodial parent, this

afforded her the rights to make the medical and educational decisions. The appellee

[Ashley] had no choice but to then cooperate on all matters per the agreement.” Id.

       {¶ 66} This is an incorrect interpretation of the agreement. The agreement does

not give the residential and custodial parent the right to make unilateral decisions about

a child and then hold the other parent in contempt when that parent happens to disagree.
                                                                                           -24-


A requirement to “discuss” is the antithesis of unilateral decision-making. “To cooperate

means ‘to act or work with another or others; to associate with another or others for mutual

benefit.’ ”   Wiseman v. Wiseman, 9th Dist. Medina No. 13CA0009-M, 2014-Ohio-2002,

¶19,    quoting   Merriam–Webster's       Collegiate   Dictionary    275    (11th   Ed.2003).

“[C]ooperation is a two-way street designed to arrive at a place that benefits both parties,

not merely one party at any cost to the other.” Id.

       {¶ 67} Having failed to involve Ashley in any decision-making regarding the

children, Crystal does not come to court with “clean hands” to request that he be held in

contempt for his disagreement with her decisions.

       {¶ 68} Accordingly, the trial court did not err in refusing to find Ashley in contempt,

and the Third Assignment of Error is overruled.



                                       VI. Expert Testimony

       {¶ 69} Crystal’s Fifth Assignment of Error states that:

               The Trial Court Erred and Abused Its Power by Ignoring the

       Testimony of the Expert Witness.

       {¶ 70} Under this assignment of error, Crystal contends that the trial court erred in

failing to credit the testimony of her expert, Melissa Johnson, who had concerns about

E.S.’s participation in a traditional school environment. According to Crystal, the court

further erred in requiring the children to be enrolled in a traditional brick and mortar school

without considering Johnson’s testimony or without having any evidence that the change

to home-schooling was detrimental.

       {¶ 71} Based on our discussion of the other assignments of error, there was ample
                                                                                         -25-


evidence that the change to online home schooling was detrimental to the children.

Crystal testified that E.S. (the child with autism) had been enrolled in public school and

that he was doing fine there before she chose to remove him and A.S. to a home-school

environment. The change was made primarily to accommodate Crystal’s schedule and

to accommodate E.S.’s therapy schedule. Despite Crystal’s refusal to acknowledge that

A.S.’s grades suffered after he was removed from public school, a fair reading of the

evidence in the record indicates that his grades worsened. In addition, both boys were

isolated in their mother’s home, and the GAL expressed concern about their socialization

and how it was being stunted by the lack of socialization.

       {¶ 72} Notably, the credibility of expert witnesses and the weight to be given to

their testimony are matters “for the trial court, as the trier of fact, to determine.” Vance

v. Vance, 151 Ohio App.3d 391, 2003-Ohio-310, 784 N.E.2d 172, ¶ 100 (2d Dist.), citing

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). After considering the

record, we find nothing improper in the trial court’s decision.

       {¶ 73} Melissa Johnson was certified in applied behavioral analysis (“ABA”), which

is a widely accepted technique used in dealing with individuals with autism. Johnson

acknowledged in her testimony that her certification and ABA were not education-related,

that she had no educational background, and that she had no opinion as to whether home

school or public school would be the best place for E.S. Transcript of Proceedings, Vol.

II, p. 309. Johnson did say that she thought E.S. would struggle if he were in a public

school setting and was unassisted. She stressed that what was most important was that

E.S. continue to receive ABA therapy.

       {¶ 74} The GAL, who had observed E.S. over a number of years, expressed
                                                                                           -26-


confidence that E.S. could attend public school and be mainstreamed. She also stated

that the Ohio school system in which E.S. would be enrolled followed the same ABA

techniques for autism that E.S.’s private provider in Indiana did. Transcript, Vol. II, at pp.

464-470. According to the GAL, the school system in Ashley’s locale would do an IEP

for E.S. and then make recommendations for physical therapy, occupational therapy, and

speech therapy. E.S. would be in a general classroom for part of the day and would be

outside the classroom for his therapies. The GAL agreed that E.S. would probably not

be able to succeed in public school without assistance; the GAL stressed, however, that

the type of assistance that Johnson mentioned was provided by the public school district

in Ohio where E.S. would be enrolled if Ashley were given custody.

       {¶ 75} In view of the above testimony, the trial court did not err by failing to rely on

the expert testimony. The court’s decision was consistent with the evidence, which

indicated that E.S. would benefit from the socialization of a general public school

classroom, while receiving the ABA therapy that he needed.

       {¶ 76} Accordingly, the Fifth Assignment of Error is overruled.



                                    VII. Imputation of Income

       {¶ 77} Crystal’s Sixth Assignment of Error states that:

              The Trial Court Erred and Abused Its Power by Imputing Income to

       the Plaintiff for Purposes of Calculating Child Support and Requiring Plaintiff

       to Pay Child Support and by Not Using the Actual Income of the Defendant.

       {¶ 78} Under this assignment of error, Crystal argues that the trial court erred in

imputing income to her because she allegedly submitted an affidavit indicating that she
                                                                                        -27-


was receiving means-tested income. Crystal did not raise this issue in the trial court, and

again, we review only for plain error. Crain, 2d Dist. Clark No. 2011-CA-92, 2012-Ohio-

6180, at ¶ 15. As we noted, use of the plain error doctrine “is to be taken with utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Reichert, 18 Ohio St.3d at 223, 480 N.E.2d 802.

       {¶ 79} Our review of the record reveals no exceptional circumstances that would

warrant application of the plain error doctrine, nor have we found any error. In this

regard, R.C. 3119.05(I) provides that:

              Unless it would be unjust or inappropriate and therefore not in the

       best interests of the child, a court or agency shall not determine a parent to

       be voluntarily unemployed or underemployed and shall not impute income

       to that parent if either of the following conditions exist:

              (1) The parent is receiving recurring monetary income from means-

       tested public assistance benefits, including cash assistance payments

       under the Ohio works first program established under Chapter 5107. of the

       Revised Code, financial assistance under the disability financial assistance

       program established under Chapter 5115. of the Revised Code,

       supplemental security income, or means-tested veterans' benefits * * *.

       {¶ 80} The record fails to indicate that Crystal has been receiving monetary

income from means-tested public assistance benefits or from any of the other programs

listed. Crystal did not mention this issue in the affidavit of income she filed when she

asked for an increase in child support, and the record indicates that her husband is

gainfully employed at an Indiana State hospital. Crystal had been previously employed,
                                                                                          -28-


and there appears to be no reason why she could not work, other than her choice to stay

at home.     Furthermore, Crystal’s husband testified that Crystal owns a property in

Versailles for which she receives rent. Although he claimed not to know the amount of

the rent, it is clear that Crystal receives some income from the rental, and again, no

evidence was submitted to indicate that she was receiving monetary income under any

programs mentioned in R.C. 3119.05(I). Given these facts, the trial court did not commit

plain error or any error in crediting Crystal with a minimal amount of income for child

support purposes. Specifically, Crystal was credited only with a minimum wage amount

and is paying only $210.30 total per month, plus 2% poundage, for her two children.

       {¶ 81} Based on the preceding discussion, the Sixth Assignment of Error is

overruled.



                                       VIII. Interim Orders

       {¶ 82} Crystal’s Seventh Assignment of Error states that:

              The Trial Court Erred and Abused Its Power by Extending the Interim

       Order for an Indefinite Amount of Time After Its Expiration, Failing to Vacate

       the Order and Issuing New Interim Orders Without Good Cause Shown.

       {¶ 83} Under this assignment or error, Crystal contends that the trial court erred in

failing to comply with requirements for extending interim orders. In response, Ashley

argues that there may have been a technical violation, but that any technical delay is not

an abuse of discretion when the delay is caused by the complaining party’s failure to have

the transcript filed in the trial court. In addition, Ashley argues that once a final order is

entered, any error is harmless.
                                                                                           -29-


       {¶ 84} Civ.R. 53(D)(4)(e)(ii) provides that:

              The court may enter an interim order on the basis of a magistrate's

       decision without waiting for or ruling on timely objections by the parties

       where immediate relief is justified. The timely filing of objections does not

       stay the execution of an interim order, but an interim order shall not extend

       more than twenty-eight days from the date of entry, subject to extension by

       the court in increments of twenty-eight additional days for good cause

       shown.

       {¶ 85} The record indicates the delay in entering a second interim order was due

to the fact that the transcript was not filed as expeditiously as the trial court anticipated.

When the order’s expiration was brought to the court’s attention, it noted the delay, and

entered another order. Crystal did not thereafter object (the third interim order, which

the trial court entered on its own motion, was also entered more than 28 days after the

second order.)

       {¶ 86} Courts have refused to address errors pertaining to the entry of interim

orders, finding any error moot, because such orders terminate when the trial court enters

final judgment. See Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736,

¶ 19; In re Guardianship of Smith, 2d Dist. Clark No. 2011-CA-09, 2011-Ohio-6496, ¶ 20;

Carter v. Carter, 3d Dist. Wyandot No. 16-99-02, 1999 WL 955909, *5 (Oct. 20, 1999).

We agree with the cited cases, and find that the Seventh Assignment of Error should be

overruled as moot.



                                          IX. Conclusion
                                                                                 -30-


       {¶ 87} Six of Appellant’s assignments of error having been overruled, and the

Seventh Assignment of Error having been overruled as moot, the judgment of the trial

court is affirmed.




                                  .............



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Crystal Miller
Jeremy M. Tomb
Hon. Jonathan P. Hein
