[Cite as Cain v. Cain, 2019-Ohio-184.]




                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                         PORTAGE COUNTY, OHIO


 JULIE M. CAIN,                                    :      OPINION

                  Plaintiff-Appellee,              :
                                                          CASE NO. 2017-P-0084
         - vs -                                    :

 JOHN A. CAIN,                                     :

                  Defendant-Appellant.             :


 Appeal from the Portage County Court of Common Pleas, Domestic Relations Division,
 Case No. 2009 DR 00597.

 Judgment: Affirmed.


 Michael A. Noble, Lentz, Noble & Heavner, LLC, 228 West Main Street, Ravenna, OH
 44266 (For Plaintiff-Appellee).

 John A. Cain, pro se, 999 Renninger Road, Apt. 16, Akron, OH 44319 (Defendant-
 Appellant).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, John A. Cain, appeals the denial of two post-decree motions in

the underlying divorce action. We affirm.

        {¶2}      The parties were married for approximately three years and have a

daughter, E.C.        Before E.C.’s birth, the parties separated as appellant was having

psychological issues and was prone to abusive behavior. In May 2011, a stipulated final

divorce was issued naming appellee the residential parent and legal custodian. Appellant
was granted supervised visitation.

       {¶3}   Within two years of divorce, the parties became embroiled in a series of

disagreements pertaining to appellant’s visitation, his treatment of E.C., and the effect of

appellee’s new boyfriend on E.C. At some point, E.C. accused appellant of engaging in

sexual behavior with her. Thus, appellee unilaterally stopped appellant’s visitation. An

investigation revealed no evidence corroborating E.C.’s accusation, and appellee did not

move to terminate visitation. After appellant filed a contempt motion, supervised visitation

continued.

       {¶4}   Although appellee initially lived with her parents following the divorce, she

and E.C. subsequently resided with appellee’s boyfriend. At some point, appellee and

her boyfriend had a physical altercation resulting in a domestic violence charge against

him. As the altercation occurred in E.C.’s presence, appellant moved for change of

custody. The motion became moot when appellee agreed not to allow any further contact

between E.C. and her boyfriend.

       {¶5}   Approximately six months later, appellee violated the agreement as

evidenced in posted photographs on social media showing E.C. with appellee and her

boyfriend. Shortly thereafter, appellee married her boyfriend and took E.C. to again live

with him. In light of this, Lynne Benek, appellant’s mother and paternal grandmother, filed

an emergency motion for temporary legal custody of E.C., asserting that it was unsafe for

her to cohabitate with appellee and her husband. Following hearing, the trial court

granted Benek’s motion, and E.C. lived with Benek for nine months.

       {¶6}   Given her status as temporary legal custodian, Benek moved to intervene

in the divorce proceeding. After that motion was also granted, she moved for permanent

custody, maintaining that appellee was constantly denying appellant his visitation rights

                                             2
by asserting false accusations.       Before the permanent custody motion was heard,

appellee moved back to her parents’ home because of a second domestic violence

altercation with her husband. Accordingly, at the outset of the next hearing, she orally

moved for custody on the grounds that, since she planned to bring a separate divorce

action against her husband, E.C. would no longer be exposed to him.

       {¶7}   Finding that Benek did not prove that appellee was unfit, the trial court

overruled Benek’s motion for permanent custody and ordered legal custody of E.C. to

appellee, so long as she continues to reside with her parents. As to appellant, the court

reestablished his visitation provided Benek supervised. Benek appealed this judgment,

but we affirmed it in all respects. See Cain v. Cain, 11th Dist. Portage No. 2016-P-0011,

2017-Ohio-708.

       {¶8}   In April 2017, Benek again moved for permanent custody of E.C., alleging

appellee as unfit due to refusal to facilitate visitation. In support, Benek referenced a new

confrontation between the two families and events that the court had already considered

in deciding prior motions.

       {¶9}   Before the trial court heard Benek’s motion, appellant moved for contempt

on the grounds that appellee failed to comply with the trial court’s visitation order relating

to summer visitation and for a change of custody, due to appellee’s consistent

interference with his visitation rights. Alternatively, appellant requested unsupervised

visitation.

       {¶10} An evidentiary hearing on all pending motions was held during which the

trial court heard testimony from appellant, appellee, and Benek.            As to appellant’s

contempt motion, the court overruled it on the basis that, even though appellee had

“technically” failed to follow certain visitation orders, her conduct was not willful or wanton.

                                               3
As to the motions for change of custody, the court denied both on the basis that neither

appellant nor Benek established a change in circumstances. Appellant’s alternative

request for unsupervised visitation was granted.       Last, the court dismissed Benek as a

party.

         {¶11} Appellant appeals assigning the following as error:

         {¶12} “[1.] The trial court committed error in finding the contempt ‘not willful.’

There is an ongoing pattern of conduct on the issue that should have been considered

when weighing the best interest of the child.

         {¶13} “[2.] The trial court committed error in not making a change of custody for

the minor child, E.C. It is well established that when a parent engages in such a conduct

as to hinder the relationship with the other parent that it is detrimental to the child and is

grounds to be found unfit.

         {¶14} “[3.] Did the trial court commit error in not naming [appellant] as custodial

parent? There had not been a finding that makes him unfit or unsuitable by the court.”

         {¶15} Appellant’s first assignment pertains to the trial court’s denial of his motion

for contempt against appellee for not affording him visitation.

         {¶16} “‘A court’s authority to punish a party for contempt for failure to comply with

a prior order derives from both the court’s inherent authority and from statutory authority.

Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870; Hale v. State

(1896), 55 Ohio St. 210, 45 N.E. 199. Contempt is a disregard or, or disobedience to, the

orders or commands of judicial authority. State v. Flinn (1982), 7 Ohio App.3d 294, 7

OBR 377, 455 N.E.2d 691.          Indirect contempt may include the disobedience of, or

resistance to, a lawful order, judgment, or command of a court officer. See R.C. 2705.02.

Courts must make civil contempt findings based upon clear and convincing evidence.

                                               4
ConTex, Inc. v. Consol. Technologies, Inc. (1988), 40 Ohio App.3d 94, 531 N.E.2d 1353.’

(Footnote omitted). Dozer v. Dozer, 88 Ohio App.3d 296, 302, 6233 N.E.2d 1272 (4th

Dist.1993).

       {¶17} “A finding of contempt must be made even if the party did not intentionally

disregard a court order; i.e., the fact that a party acted innocently is not a valid defense

to a contempt claim. Pugh v. Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085 (1984),

quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971),

paragraph three of the syllabus.        In other words, ‘[p]]roof of purposeful, willing or

intentional violation of a court order is not a prerequisite to a finding of contempt. * * * “It

is irrelevant that the transgressing party does not intend to violate the court order. If the

dictates of the judicial decree are not followed, a contempt citation will result.”’ (Emphasis

sic). Id., quoting Pedone v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (1983).”

In the Matter of G.M., 11th Dist. Trumbull No. 2016-T-0092, 2017-Ohio-8145, 98 N.E.3d

790, ¶16-17.

       {¶18} During the evidentiary hearing, appellant maintained that appellee failed to

comply with two visitation orders. The first order, issued in September 2016 while Benek’s

prior appeal was pending, gave appellant an extra day of visitation each week. The

second order, issued in June 2017, granted appellant visitation in accordance with the

trial court’s standard parenting time schedule. Under that schedule, he was entitled to six

weeks of visitation during the summer.         Regarding each of these orders, appellant

testified that appellee did not take any steps to satisfy.

       {¶19} As part of her testimony, appellee ceded that the controlling visitation orders

were not followed, but asserted that the problems were attributable to appellant. As to

the “one day extra” order, she testified that he did not contact her and tell her which day

                                               5
of the week he wanted. Appellant admitted this on cross-examination. As to summer

visitation, appellee agreed that she received a letter from appellant proposing the weeks

he wanted for summer visitation. She also testified that in response, she and her attorney

made a counterproposal regarding the weeks for visitation and never heard back from

appellant.

       {¶20} The visitation order at issue for determining contempt grants appellee

visitation in accordance with the court’s Standard In-State Parenting Time Schedule

attached as Exhibit A. The exhibit, however, is not attached. The order, therefore,

provides no mandate as to when appellee was to get his extra day of visitation or summer

visitation.

       {¶21} In ruling upon a contempt motion, “the first step is to ‘look to the text of the

order to determine whether it is clear.’ [United States v. Saccoccia, 433 F.3d 19, 27 (1st

Cir.2005)]. ‘The test is whether the putative contemnor is “able to ascertain from the four

corners of the order precisely what acts are forbidden.”’ Goya Foods, Inc. v. Wallack

Mgmt. Co., 290 F.3d 63, 76 (1st Cir.2002) * * *. However, this is not an exercise in the

abstract; the ‘four corners’ rule grounds the analysis to determine whether ‘the words of

the court’s order have clearly and unambiguously forbidden the precise conduct on which

the contempt allegation is based.’ Saccoccia, 433 F.3d at 28 (emphasis in original) * * *.

‘The purpose of this “four corners” rule is to assist the potential contemnor by narrowly

cabining the circumstances in which contempt may be found.’ Id. at 28. It is because

‘[t]he consequences that attend the violation of a court order are potentially dire … [that]

courts must ‘read court decrees to mean rather precisely what they say.’            [Project

B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir.1991)].” UTGR, Inc. v. Mutuel/Gaming Clerks

Union of Rhode Island, D. Rhode Island No. CA09-046 S, 2010 WL 231122, *2 (Jan.12,

                                             6
2010).

         {¶22} Appellee’s obligations were limited to the express language contained in the

judgment itself. Under that judgment, appellee is required to afford appellant parenting

time with the child, and must drop off and pick-up the child at Lynne Benek’s residence.

There is no language, however, granting appellant schedule priority over appellee’s

schedule. Her counterproposal does not constitute contempt nor does appellant’s failure

to respond.

         {¶23} In challenging appellee’s credibility, appellant emphasizes that his mother,

Benek, testified that she sent appellee a text concerning the extra day of visitation, and

appellee did not respond. During her testimony, though, appellee denied receiving the

text, and Benek could not produce a written copy of the alleged text. Before this court,

appellant has submitted an affidavit from Benek in which she provides the content of a

“text” exchange she allegedly had with appellee about Christmas visitation to bolster

Benek’s trial testimony that she would text appellee in relation to visitation. However, that

affidavit was not before the trial court and, therefore, cannot be considered. See State v.

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.

         {¶24} “A reviewing court shall not assert its judgment over that of a trier of fact in

areas of credibility and veracity of evidence and witnesses.” Avakian v. Avakian, 11th

Dist. Portage No. 2014-P-0036, 2015-Ohio-2299, ¶28, citing Eastley v. Volkman, 132

Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. Appellee’s testimony does not have

inherent inconsistencies rendering it unbelievable. Therefore, appellant has not shown

that the trial court erred in finding her testimony more credible. Moreover, her testimony

supports the finding that the lack of compliance with the controlling visitation orders was

not due to her, but rater appellant’s failure to communicate.

                                               7
       {¶25} As previously noted, the trial court concluded that, appellee had

“technically” violated the prior court order. Appellee, however, did not violate the visitation

orders, technically or otherwise. The denial of the contempt motion is affirmed.

       {¶26} For this reason, appellant’s first assignment lacks merit.

       {¶27} Appellant’s last two assignments address related issues, and will be

considered together. Under the second assignment, appellant argues that the trial court

erred in finding no change of circumstances because appellee has engaged in a pattern

of behavior that is detrimental to his relationship with E.C. Under the third assignment,

he contends that the evidence supports a finding that he is psychologically fit to care for

E.C.

       {¶28} Regarding change of custody, R.C. 3109.04(E)(1)(a) provides:

       {¶29} “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 parenting

decree, unless a modification is in the best interest of the child and one of the following

applies:

       {¶30} “* * *

       {¶31} “(iii) The harm likely to be caused by a change of environment is outweighed

by the advantages of the change in environment to the child.”

       {¶32} “The statute sets forth a two-step process for deciding motions to modify

                                              8
child custody. The threshold issue/step is whether the circumstances of the child or the

residential parent have changed. * * * Given that the term ‘change of circumstances’ is

not statutorily defined, case law states that ‘the phrase is intended to represent an event,

occurrence, or situation which has a material and adverse effect upon a child.’ * * * To

constitute a proper basis for reallocating parental rights, the change of circumstances

cannot be slight or inconsequential, but must be of substance. * * *.” In the Matter of

G.M., 11th Dist. Trumbull No. 2016-T-0027, 2017-Ohio-8144, 98 N.E.3d 795 ¶19.

       {¶33} In maintaining that appellee was harming his relationship with E.C.,

appellant refers to two situations. The first involves visitation on E.C.’s birthday in 2017.

That year, her birthday fell on a Tuesday when appellant generally has visitation. The

order, however, specifically provides for appellee to have E.C. on her birthday in 2017.

Appellant believed he was, therefore, not entitled to visitation at all, but surmised that

appellee would take E.C. to the place of exchange in order to make E.C. believe he did

not want to see her. Appellant, therefore, sent his mother to the exchange location in

case appellee brought E.C. for exchange, and appellee was there waiting.

       {¶34} In response, appellee testified that, under her reading of the visitation order,

appellant was entitled to see E.C. for four hours on her birthday, even when it was

appellee’s turn to have E.C. for the majority of the day. As a result, appellee believed she

was complying with the visitation order in bringing E.C. to the exchange location. To this

extent, she was not trying to harm appellant’s relationship with E.C., and any

misunderstanding was due to the parties’ failure to communicate.

       {¶35} The second situation occurred when appellant was returning E.C. following

visitation. Appellant testified that, after E.C. got out of his car, she tried to open the back-

passenger door of appellee’s vehicle, but was unable to do so because the door was

                                               9
locked. Appellee’s father then exited the vehicle, escorted E.C. to the driver’s side, and

helped her into the back seat. Appellant further testified that this shows how petty

appellee is, in that she would not allow E.C. to get into the vehicle by herself.

       {¶36} Appellee testified that E.C. needed help getting into her vehicle because it

is higher off the ground than most automobiles. Nevertheless, appellant fails to explain

how this rises to the crest of a material adverse effect.

       {¶37} Last, appellant asserts that, in deciding whether he established change of

circumstances, this court should consider previous incidents that he cited in his prior

contempt motions. However, they were all known to the court before the prior decrees

were issued.

       {¶38} Appellant’s second assignment is without merit.

       {¶39} In light of this, appellant’s third assignment regarding fitness is moot.

       {¶40} The judgment of the Portage County Court of Common Pleas, Domestic

Relations Division, is affirmed.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                    ____________________




DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶41} I respectfully dissent and would reverse the decision of the lower court.

       {¶42} As the majority acknowledges, “[a] finding of contempt must be made even

if the party did not intentionally disregard a court order; i.e., the fact that a party acted



                                             10
innocently is not a valid defense to a contempt claim.” (Citations omitted.) In re G.M.,

11th Dist. Trumbull No. 2016-T-0092, 2017-Ohio-8145, ¶ 17; Pugh v. Pugh, 15 Ohio St.3d

136, 140, 472 N.E.2d 1085 (1984) (“proof of purposeful, willing or intentional violation of

a court order is not a prerequisite to a finding of contempt”); Windham Bank v.

Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph three of the syllabus

(“the fact that the contemnor acted innocently and not in intentional disregard of a court

order is not a defense to a charge of civil contempt”).

       {¶43} Contrary to this well-established tenet of contempt jurisprudence, the lower

court failed to hold the appellee (mother) in contempt, finding that, although she “may

have been in technical contempt regarding father’s summer companionship,” the

“contempt was neither willful nor wanton.” The majority circumvents the lower court’s

misapplication of a willful and wanton standard to contempt proceedings by concluding

that the appellee did not even violate the court’s visitation orders, “technically or

otherwise.” Supra at ¶ 25.

       {¶44} More than merely technical, the appellee’s violation of the court order

regarding the appellant’s (father’s) summer visitation was blatant and merited a finding

of contempt.

       {¶45} The uncontradicted testimony before the lower court was that the appellee

deprived the appellant of four weeks of court-ordered parenting time during the summer

of 2017. Appellant submitted his request for summer visitation pursuant to a Judgment

Entry for parenting time issued on June 19, 2017. The appellee admits that she, as well

as her attorney, received the request. Rather than allow the visitation, appellee, through

counsel, submitted “a different proposed schedule for the rest of the summer.”

       {¶46} Submitting different proposed schedules does not comply with the lower

                                            11
court’s visitation order, nor does it provide an adequate justification for denying the

appellant summer visitation. See Portage County Standard In-State Parenting Time

Schedule in re Summer Break (“[t]he nonresidential parent’s schedule shall have priority

over the residential parent’s schedule”). Appellee claimed that she tried to work it out,

but there was nothing to work out. Appellant was entitled to summer visitation and his

schedule had priority. Appellee’s obligation was to comply with the visitation order, yet

she admits appellant received no summer visitation. The suggestion that this duty was

suspended by the communication of a “counterproposal as regarding the weeks for

visitation” only encourages the abuse of an already much-abused process. The trial court

judge succinctly stated the situation: “The [appellee’s] testimony was he didn’t get any

summer visitation. There were five weeks left and he didn’t get any.”

       {¶47} The majority concludes not only that there was no contempt, but that there

was no visitation schedule. According to the majority, the appellee was only under

obligation “to afford appellant parenting time with the child.” Supra at ¶ 22. Since the

court’s Entry contained “no language” regarding what the schedule of parenting time was,

appellee could not be found to have violated the schedule. Such a position is violative of

both the court’s Entry and common sense. The Entry provides that the appellant “shall

have parenting time pursuant to this Court’s Standard In-State Parenting Time Schedule

attached hereto as Exhibit ‘A.’” The fact that this Schedule was not or is no longer

attached to the court’s Entry is immaterial. The Standard Parenting Time Schedule is

incorporated into the Local Rules for the domestic relations division and expressly

provides that the “nonresidential parent’s schedule shall have priority over the residential

parent’s schedule.” Local Rule 19(D); R.C. 3109.051(F)(2) (“[o]n or before July 1, 1991,

each court of common pleas, by rule, shall adopt standard parenting time guidelines”).

                                            12
These Rules are binding on the parties before the court. The court granted appellant

summer visitation and “he didn’t get any.”

       {¶48} Appellee’s conduct in disregarding court orders and denying appellant

visitation has been a pattern during the course of these proceedings and should not be

further indulged. See Cain v. Cain, 11th Dist. Portage No. 2016-P-0011, 2017-Ohio-708,

¶ 46 (Grendell, J., dissenting) (“[t]he evidence in the record demonstrates the mother has

disregarded the domestic relations court’s orders, violated the father’s visitation rights,

and exploited unsubstantiated abuse allegations in order to compromise the child’s

relationship with her father and her father’s family”).

       {¶49} For the foregoing reasons, I respectfully dissent and would reverse the

lower court’s ruling that appellee was not in contempt of court.




                                             13
