[Cite as Cordy v. Schwaderer, 2015-Ohio-3393.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Pamela Cordy                                         Court of Appeals No. OT-14-046

        Appellant                                    Trial Court No. 08-DR-071

v.

Keith Schwaderer                                     DECISION AND JUDGMENT

        Appellee                                     Decided: August 21, 2015

                                                 *****

        Pamela J. Cordy, pro se.

                                                 *****

        JENSEN, J.

        {¶ 1} Plaintiff-appellant, Pamela J. Cordy, appeals the November 20, 2014

judgment of the Ottawa County Court of Common Pleas which granted a week of “make-

up visitation” to Cordy’s ex-husband, defendant-appellee, Keith Schwaderer. For the

reasons that follow, we affirm the trial court’s judgment.
                                      I. Background

       {¶ 2} Cordy and Schwaderer divorced in 2009. Since then, they have been

battling each other over visitation time with their two children. Cordy was awarded legal

custody of the children and Schwaderer was permitted visitation every other weekend

from Friday at 6:00 p.m. until Monday at 7:30 a.m., overnight visitation on Wednesdays,

and four weeks of visitation in the summer, taken in two-week increments.

       {¶ 3} Schwaderer moved the trial court for a modification of visitation, seeking an

even 50/50 split in time with the children. In an order dated July 29, 2013, the trial court

adopted a magistrate’s decision dated June 13, 2013, which denied Schwaderer’s request,

but expanded his summer visitation to six weeks, to be taken in two three-week

increments.

       {¶ 4} Cordy’s attorney concluded that Schwaderer’s additional two weeks of

summer visitation would begin in the summer of 2014. This is because Ottawa County

Local Rule DR-3(4) requires summer visitation to be arranged by May 1. Because the

children would be back in school in late August, and because the court’s order did not

indicate that DR-3(4) would not apply, it was Cordy and her attorney’s view that the

impracticability of complying with the May 1 notice requirement meant that the

additional weeks of visitation granted by the court would not take effect until the

following summer. Cordy, therefore, prevented Schwaderer from exercising his two

extra weeks of visitation during the summer of 2013.




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       {¶ 5} On August 6, 2013, Schwaderer filed a motion to show cause why Cordy

should not be held in contempt of court for violating the July 29, 2013 order, and

requested an ex parte order to enforce the July 29, 2013 judgment. The motion was set

for an October 18, 2013 hearing. The parties apparently failed to appear for that hearing,

and Schwaderer filed an amended motion on October 20, 2013, to request that he be

allowed to make up the visitation time even in the event that the trial court were to deny

his motion for contempt. The court set the matter for a November 22, 2013 hearing.

       {¶ 6} Before the November 22, 2013 hearing, the parties reached a partial

settlement and Cordy allowed Schwaderer an extra week with the children during their

Christmas break at the end of 2013. Schwaderer persisted in seeking the second week of

visitation that Cordy denied him. A hearing on Schwaderer’s motion took place on

May 23, 2014, before a magistrate.

       {¶ 7} Following the hearing, the magistrate issued a decision declining to find

Cordy in contempt, but ordering that Schwaderer be permitted an extra week with the

children in August of 2014, tacked on to his regular three-week visit. It observed that

nothing in the prior order required a notice period for the two extra visitation weeks.

       {¶ 8} Schwaderer filed objections to the decision because in addition to tacking

the additional week on to the August visit, the decision appeared to have altered the

parties’ pre-existing visitation arrangement by specifying that Schwaderer’s first three-

week visitation would begin on the first Saturday of June and the second would begin the




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first Saturday of August. The parties’ prior arrangement did not set forth these particular

dates.

         {¶ 9} Cordy also filed objections both as to the decision to tack on a fourth week

of visitation to Schwaderer’s August visitation, and to the court’s conclusion that no

advance notice was required by the order. Cordy claimed that the notice provision was

required by the local rules and that if the court intended for the notice period to be

dispensed with, it should have been specified in its order.

         {¶ 10} In a November 20, 2014 decision, the court overruled the parties’

objections to the magistrate’s decision and found Schwaderer’s motion to show cause not

well-taken. The trial court adopted the magistrate’s decision in a judgment entry dated

December 2, 2014. In the November 20, 2014 judgment—which is the only order at

issue on appeal—the court stated that the additional week of visitation could take place

either during Christmas of 2014 or Summer Break of 2015. In her appeal of the

November 20, 2014 judgment, Cordy assigns the following errors for our review:

                1. The trial court’s judgment entry ordering the extra week of

         visitation must be supported by either a finding of contempt or a best

         interest analysis, neither of which are present in the November 20, 2014

         Judgment Entry.

                2. The Magistrate’s Decision of June 13, 2013 and adopted by the

         trial court without objection on July 29, 2013 was ambiguous or




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       incomplete, and is not a proper basis for an extra week of “makeup

       visitation.”

                                   II. Law and Analysis

       {¶ 11} Cordy challenges the trial court’s decision which awarded an additional

week of make-up visitation to Schwaderer. She claims (1) that the July 29, 2013

judgment which expanded Schwaderer’s summer visitation was ambiguous as to when

that expanded visitation would begin; and (2) by declining to find Cordy in contempt for

violating the July 29, 2013 order, the court was without authority to award make-up

visitation to Schwaderer.

       {¶ 12} “[I]t is well-settled in Ohio law that an appellate court’s proper role in

domestic relations issues is to review the trial court’s decision for an abuse of discretion.”

Rapp v. Pride, 12th Dist. Butler No. CA2009-12-311, 2010-Ohio-3138, ¶ 28. We may

not substitute our judgment for that of the trial court, and we will reverse the trial court’s

judgment only where the court has abused its discretion. Id. at ¶ 27. “Abuse of

discretion” connotes that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 13} R.C. 3109.051(K), provides, in pertinent part:

              If any person is found in contempt of court for failing to comply

       with or interfering with any order or decree granting parenting time rights

       * * * the court that makes the finding may award reasonable compensatory




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       parenting time or visitation to the person whose right of parenting time or

       visitation was affected by the failure or interference if such compensatory

       parenting time or visitation is in the best interest of the child.

       {¶ 14} According to Cordy, this statute requires a finding of contempt or a finding

that additional parenting time is in the best interest of the child before a trial court is

authorized to order make-up visitation. We conclude, however, that the trial court acted

within its discretion and we find support for the trial court’s action in other Ohio cases.

       {¶ 15} For instance, in Detling v. Stottler, 7th Dist. Belmont No. 96-BA-15, 1999

WL 771069, *2 (Sept. 22, 1999), the trial court declined to find the appellant-mother in

contempt for violating a previous visitation order, but nonetheless granted make-up

visitation to the appellee-father. Appellant claimed on appeal that the trial court’s

decision allowing make-up visitation was against the manifest weight of the evidence

because there had been no finding of contempt. Id. The appeals court clarified that the

standard of review of a trial court’s order respecting visitation is abuse of discretion, and

it explained that “it is axiomatic that a trial court must have discretion to do what is

equitable upon the facts and circumstances of each case.” Id. It ultimately held that the

trial court acted within its discretion in granting make-up visitation to the appellee. Id.

       {¶ 16} Similarly, in Wooten v. Schwaderer, 3d Dist. Union No. 14-08-13, 2008-

Ohio-3221, ¶ 6, the father, who was the child’s residential parent, planned a spring break

trip with the child despite the fact that the parents’ custody arrangement provided that the

mother would have visitation during that time. The mother moved for a contempt order.




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Id. The trial court overruled the motion for contempt, but awarded compensatory

parenting time to the mother nevertheless. Id. The court deemed that by granting the

additional week of visitation, the trial court acted within its discretion and made the

mother whole.

       {¶ 17} We reach the same conclusion here. Regardless of whether the July 29,

2013 order granting expanded visitation to Schwaderer was ambiguous as Cordy claims,

the trial court determined that Cordy violated that order. It nevertheless declined to find

Cordy in contempt for violating the order, in large part, because she acted on the advice

of her counsel, but ordered that Schwaderer was entitled to make up the week that Cordy

denied to him. In doing so, the trial court properly exercised its discretion to reach an

equitable outcome. We find nothing to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable.

       {¶ 18} We find both of Cordy’s assignments of error not well-taken.

                                      III. Conclusion

       {¶ 19} For the foregoing reasons, we affirm the November 20, 2014 judgment of

the Ottawa County Court of Common Pleas. The costs of this appeal are assessed to

Cordy under App.R. 24.


                                                                         Judgment affirmed.




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                                                               Cordy v. Schwaderer
                                                               C.A. No. OT-14-046




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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