[Cite as Steele v. Steele, 2013-Ohio-3655.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

CHARLES R. STEELE                                      :

        Plaintiff-Appellant                            : C.A. CASE NO.      25713

v.                                                     : T.C. NO.    05DR864

BOBBIE JO STEELE nka MALOCU                            :   (Civil appeal from Common
                                                            Pleas Court, Domestic Relations)
        Defendant-Appellee                             :

                                                       :

                                              ..........

                                              OPINION

                          Rendered on the       23rd       day of     August     , 2013.

                                              ..........

H. STEVEN HOBBS, Atty. Reg. No. 0018453, 119 North Commerce Street, Lewisburg,
Ohio 45338
      Attorney for Plaintiff-Appellant

BRIAN A. SOMMERS, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

                                              ..........

FROELICH, J.

                 {¶ 1} Charles Steele appeals from a judgment of the Montgomery County
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Court of Common Pleas, Domestic Relations Division, which vacated a magistrate’s finding

that his former wife Bobby Jo Steele (n.k.a. Malocu) had been in contempt for interfering

with his parenting time and his telephone contact with their daughter.

                    {¶ 2} For the reasons that follow, the judgment of the trial court will be

                    affirmed.

         {¶ 3}        Steele and Malocu were divorced in 2007 and entered into a shared

parenting plan with respect to their daughter, M.S. In 2010, the shared parenting plan was

terminated, and Malocu was designated as the residential parent; Steele continued to have

expanded visitation with M.S.

         {¶ 4}        In July 2011, Steele filed a motion to show cause why Malocu should not

be held in contempt for denial of parenting time; in October 2011, he filed an amended

motion in which he asserted that Malocu had also interfered with his telephone contact with

M.S.1 The alleged violations occurred during July 2011, shortly after an incident which led

Malocu to suspect and to initiate investigations of sexual abuse of M.S. by Steele.

         {¶ 5}        Steele’s motion to show cause was referred to a magistrate, who conducted

a hearing on April 6 and May 15, 2012. The evidence presented at the hearing established

the following.

         {¶ 6}        In late June 2011, M.S., age 6 or 7, reported to her mother that her

“privates” were irritated, a condition with which the child had dealt repeatedly. M.S. had

returned from a camping trip with Steele a day earlier, and she reported that Steele had


             1
               Steele’s motion contained other allegations of contempt, which were overruled by the magistrate and are not relevant
   to this appeal.
                                                                                         3

applied medication to the affected area.        M.S. had been uncomfortable with Steele’s

application of the medicine. Malocu became concerned about sexual abuse.

       {¶ 7}     Malocu took M.S. to Children’s Hospital, where she was examined.

Malocu testified that M.S. refused to allow a male physician to examine her. Vaginal

irritation was documented, but no signs of sexual abuse were observed. Malocu talked with

a social worker, who in turn consulted with the medical professionals who had examined

M.S. The social worker decided that no referral of the case to Children Services (“CSB”) or

the police was warranted, and she informed Malocu of this conclusion. The social worker

also informed Malocu that she (Malocu) could report the incident to CSB or the police

herself if she wanted to do so. Malocu did report her concern to CSB and to the West

Carrollton Police Department.

       {¶ 8}     Steele had been scheduled to have visitation with M.S. from July 3 through

10, 2011. Because the alleged inappropriate touching was being investigated during that

time, Malocu did not permit Steele to exercise his visitation. Rather, Malocu took M.S. on

vacation to South Carolina.

       {¶ 9}       CSB closed the case within a couple of weeks as “unsubstantiated.”

Malocu received the notice of CSB’s determination in mid-July 2011, and she resumed the

normal parenting schedule with Steele shortly thereafter.

       {¶ 10}    It is unclear what, if any, action the police took.

       {¶ 11}    At the hearing before the magistrate, the testimony of Malocu, Steele, the

hospital’s social worker, and a clinical psychologist who counseled M.S. and her mother

after the investigation, was presented. They testified about Malocu’s suspicion of sexual
                                                                                             4

abuse, M.S.’s behavior and history of vaginal irritation, and the events that transpired during

the investigation.   Steele also presented evidence that Malocu had not facilitated his

telephone contact with M.S.

       {¶ 12}    Based on this evidence, the magistrate concluded that Malocu had not acted

in good faith when she denied Steele’s visitation. In particular, the magistrate noted that 1)

none of the professionals who examined or talked with M.S. determined that there was any

evidence upon which to base Malocu’s subjective belief that abuse may have occurred, as

evidenced by their failure to refer the matter to CSB, 2) Malocu was “warned” by the social

worker and a police officer that she should not violate the court’s visitation order without

legal advice, 3) Malocu did not agree to or offer make-up parenting time to Steele, although

he raised the issue with her, 4) Malocu did not file a motion with the court in response to her

concerns, and 5) Malocu went on a vacation with M.S. during the disputed parenting time.

The trial court did not make any specific findings regarding Steele’s claims of interference

with telephone contact.

       {¶ 13}    The magistrate found Malocu in contempt for withholding visitation and

telephone contact, sentenced her to incarceration not to exceed five days, and ordered that

she could purge the contempt by allowing Steele an additional week of summer parenting

time in 2012 or 2013. The magistrate also ordered Malocu to pay “clerk administrative

fees” and $350 in attorney fees.

       {¶ 14} Malocu filed objections to the magistrate’s decision. In her objections, she

argued that allowing M.S. to visit with her father while he was being investigated by CSB

and the West Carrollton police would have violated her duty to protect her child (citing R.C.
                                                                                             5

2919.22) and that, under the circumstances, her denial of visitation for one week was

reasonable. She also argued that she had not interfered with Steele’s telephone contact,

because most of his communications had been text messages sent to her (not M.S.) and the

one phone call had been while M.S. was at summer school.

         {¶ 15} After “thoroughly and independently review[ing] the record,” the trial court

concluded that Malocu “acted in the best interest of [M.S.] when she denied parenting time

for a one week period while CSB and the West Carrollton Police Department were

conducting their respective investigations,” despite the fact that the allegations were

ultimately found to be unsubstantiated.        The court also noted that M.S.’s counseling

sessions (which occurred after the alleged incident) revealed that she had anxiety about

visiting Steele.

         {¶ 16}     The court also found that Steele failed to prove that Malocu had interfered

with his telephone contact with M.S. Most of the communications were by text, and Steele

“admitted that it was not practical to expect a 7 year old child to respond to a text message;”

the one alleged instance of missed telephone contact was at a time when the child was

“likely in summer school.”

         {¶ 17}     The trial court denied Steele’s motion for a finding of contempt “in its

entirety” and vacated the awards of administrative and attorney fees.

         {¶ 18}     Steele appeals from the trial court’s judgment, raising one assignment of

error.

         THE       TRIAL COURT        ERRED      BY   DISMISSING        APPELLANT’S

         CONTEMPT MOTION IN [ITS] ENTIRETY.
[Cite as Steele v. Steele, 2013-Ohio-3655.]
        {¶ 19}      Steele contends that the trial court “disregard[ed] key testimony” in finding

that Malocu had an affirmative defense to the finding of contempt and in rejecting the

conclusions of the magistrate, who “had the better opportunity to weigh the credibility of

each and every witness who testified.” Steele asserts that Malocu denied parenting time

because she wanted to take M.S. to South Carolina and that, in removing M.S. from the area,

Malocu delayed the investigations by precluding access of CSB and the police to the child.

Steele also argues that the trial court should not have relied on M.S.’s counselor’s

conclusion that M.S. had anxiety about visiting her father, because the counseling did not

begin until after the investigation was closed, and “[t]his bootstrap analysis” did not

demonstrate sound reasoning.

        {¶ 20}      Steele, as the movant in the motion to show cause, had the obligation to

prove by clear and convincing evidence that Malocu was in contempt by failing to comply

with the court’s orders. Rock v. Rock, 2d Dist. Montgomery No. 25311, 2013-Ohio-390, ¶

14; Jenkins v. Jenkins, 2d Dist. Clark No. 2011 CA 86, 2012-Ohio-4182, ¶ 12.                   A

residential parent may have a defense in a contempt proceeding for interference with

parenting time if he or she has a reasonable, good faith belief that he or she must deny

visitation to protect the safety of the child. See, e.g., Hensley v. Hensley, 6th Dist. Erie

No. E-08-026, 2009-Ohio-1738, ¶ 22; McClead v. McClead, 4th Dist. Washington No.

06CA67, 2007-Ohio-4624, ¶ 33; Buchanan v. Buchanan, 12th Dist. Clermont Nos.

CA98-10-085, CA98-10-091, 1993 WL 619049, * 2 (Aug. 16, 1999).

        {¶ 21}      Malocu does not dispute that Steele was entitled to five weeks of visitation

with M.S. in the summer of 2011, that one of those weeks was scheduled for the first week

of July, and that she refused to allow that visitation to occur. She argues, however, that she
                                                                                            7

should not be held in contempt because, in light of her concerns, which were still being

investigated at that time, she was justified in withholding visitation.

       {¶ 22}    In accordance with Civ.R. 53, the trial court must conduct an independent

review of the facts and conclusions contained in the magistrate’s report and enter its own

judgment. Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996).

Thus, the trial court's standard of review of a magistrate’s decision is de novo.

       {¶ 23}    An appellate court reviews the trial court’s decision to adopt a magistrate’s

decision under an abuse of discretion standard. Proctor v. Proctor, 48 Ohio App.3d 55,

60-61, 548 N.E.2d 287 ( 3rd Dist.1988). An abuse of discretion means that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983). Presumptions of validity and deference to a trial

court as an independent fact-finder are embodied in the abuse of discretion standard.

Juergens v. Strileckyj, 2d Dist. Clark No. 2010 CA 36, 2010-Ohio-5159, ¶ 21. When

applying the abuse of discretion standard, an appellate court may not merely substitute its

judgment for that of the trial court. Berk v. Mathews, 53 Ohio St.3d 161, 169, 559 N.E.2d

1301 (1990); Randall v. Randall, 2d Dist. Darke No. 1739, 2009-Ohio-2070, ¶ 8-10.

       {¶ 24}    Conflicting evidence as to the reasonableness of Malocu’s actions was

presented at the hearing. Some of the evidence suggested that Malocu quickly jumped to

the conclusion that Steele’s applying medicine to the child’s genitals (the use of which had

previously been discussed with a doctor) was sexually abusive, considering that M.S. was

known to have a problem with irritation in this area. The evidence also showed that Malocu

was initially reluctant to accept the opinions of the medical professionals who examined
                                                                                            8

M.S., who failed to find physical evidence indicating abuse. On the other hand, Malocu

testified that M.S. had been very upset and physically uncomfortable after her father’s

application of medicine to her genitals and had refused to allow a male doctor to examine

her at the hospital. She also testified that M.S. did not need cream at Malocu’s house, and

that M.S. was able to apply her own cream if it was needed.

       {¶ 25}     Suspicions of child sexual abuse evoke strong emotions and reactions, and

the trial court apparently concluded that Malocu’s suspicions justified her short-term refusal

to allow visitation, while the matter was being investigated. The magistrate’s concerns

about Malocu’s motives were not unfounded, but the trial court was entitled to weigh the

evidence independently when it conducted its review of the magistrate’s findings. We

cannot conclude that the trial court abused its discretion in finding that Malocu was not in

contempt for suspending visitation while the matter was investigated.

       {¶ 26}     Likewise, viewing the evidence regarding the alleged interference with

telephone contact, including texting, the trial court could have reasonably concluded that

Malocu’s conduct with respect to the telephone communications, including a single missed

phone call (during which the child may have been at summer school) and Steele’s reliance

on texting, which may not have been a reasonable manner of communicating with a

seven-year-old child, had not justified a finding of contempt. The trial court did not abuse

its discretion in reaching the conclusions that it did.

       {¶ 27}     The assignment of error is overruled

       {¶ 28}     The judgment of the trial court will be affirmed.

                                           ..........
                                      9

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

H. Steven Hobbs
Brian A. Sommers
Hon. Denise L. Cross
