Mackowiak v. Mackowiak
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[Cite as Mackowiak v. Mackowiak, 2011-Ohio-3013.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY SARAH WYATT MACKOWIAK, : Plaintiff-Appellant, : CASE NO. CA2010-04-009 : OPINION 6/20/2011 - vs : BRADY LEE MACKOWIAK, : Defendant-Appellee. : CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. G20004088 Andrea R. Yagoda, 2000 Henderson Road, Suite 250, Columbus, Ohio 43220, for plaintiff-appellant Diane Kappeler DePascale, Liberty Tower, 120 West Second Street, Suite 1406, Dayton, Ohio 45402, for defendant-appellee Renae Zabloudil, 58 East High Street, Suite B, London, Ohio 43140 Mary Elizabeth King, 153 East Court Street, Washington C.H., Ohio 43160, Guardian Ad Litem POWELL, P.J. {¶1} A mother appeals the decisions of the Fayette County Juvenile Court twice finding her in contempt and granting custody of her son to the boy's father living Fayette CA2010-04-009 in Idaho. We uphold the custody decision based on a change of circumstances and the best interests of the child. We reverse the first contempt finding. The second contempt finding is affirmed in part, reversed in part, and remanded for further proceedings related to the sanctions imposed. {¶2} Sarah Wyatt Mackowiak and Brady Lee Mackowiak were divorced in Idaho in 1998, while mother was pregnant. Their son, M.M., was born December 30, 1998 in Ohio. Paternity was established in Idaho; custody matters were transferred from Idaho to Fayette County Juvenile Court; mother was named legal custodian and residential parent. {¶3} Since that time, it appears from the voluminous record that the parties have been able to resolve few issues without legal intervention. In May 2008, the then sitting judge hearing juvenile matters in Fayette County recused herself, and a visiting judge was assigned to the case. {¶4} The issues of this appeal center on events surrounding an October 2008 planned weekend parenting time by father, who traveled to Ohio from Idaho for the visit. The record indicates that father's parenting time was slated to start after school on Thursday, October 16. Instead, mother, who was called to the child's school because the child was upset, took the child to the emergency department of Children's Hospital in Cincinnati and another facility. Father moved for contempt on Friday, the next day, alleging that mother failed to deliver the child to the visitation center on Thursday as outlined in a September 16, 2008 "corrected" order of the juvenile court. {¶5} Father's motion also requested "[a]ny further/additional Orders the Court may find to be in the child's best interest." Father's attorney certified that she -2- Fayette CA2010-04-009 faxed the motion to mother's counsel and the child's guardian ad litem (GAL). {¶6} The court issued an entry on Friday morning. The entry ordered mother to "immediately" deliver the child to the visitation center and "immediately" appear in court to answer father's motion that she be held in contempt for violating the court's order to bring the child to the visitation center on Thursday. The juvenile court's order, which was prepared by father's counsel, did not include the request for any further or additional orders in the child's best interest. The sheriff's return indicates that mother was personally served with the order on Friday, October 17. {¶7} According to the record, mother delivered the child to the visitation center and appeared with counsel in juvenile court. The hearing transcript reveals that father opened the proceedings by requesting a contempt finding and telling the court that the parties agreed to extend the weekend visit through Monday to make up for the loss of Thursday. Father also asked the court for "an order of emergency temporary custody of this child due to what we allege is mother's repeated pattern of mental, emotional, and psychological abuse of this child * * *." {¶8} The juvenile court heard testimony from mother, father, mother's sister, and the director of the visitation center. The court found mother in contempt on the weekend visitation issue, and stated that it would "stay any sentence at this time." The juvenile court also granted father temporary custody. The entry reflecting this decision was filed November 5. 2008. {¶9} In its November 5 entry, the juvenile court granted mother the parenting time previously awarded to father and made provisions for health insurance, terminated father's child support obligation, and ordered the parties to provide the necessary information to determine mother's child support obligation, such obligation -3- Fayette CA2010-04-009 to be effective October 17, 2008. The court stated it would set the issues for review for a time after Father's Day at the end of the school year. {¶10} The record indicates that additional entries were filed subsequent to that hearing that determined such issues as child support and the child's health insurance coverage. Motions were filed by the parties, including additional contempt motions. {¶11} The current GAL became the child's attorney when it was determined that a conflict existed between the wishes of the child and the GAL's recommendations. A new GAL was appointed for the child. An attempt to have the visiting judge disqualified was unsuccessful. Further evidentiary hearings on custody were held in 2009. By entry filed March 24, 2010, the juvenile court found a change of circumstances justified placing M.M. in his father's custody and named father legal custodian and residential parent and granted mother parenting time. The juvenile court again indicated that mother was in contempt for the denial of visitation from October 16, 2008, and finally imposed the sanction a fine of $100 and costs, suspending the fine. {¶12} Mother filed this appeal, presenting five assignments of error for our review. We will address the assignments of error out of order so that we can review the issues related to contempt before the custody issues. {¶13} Assignment of Error No. 1: {¶14} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT HER SUBSTANTIVE DUE PROCESS RIGHTS IN FINDING HER IN CONTEMPT ON NOVEMBER 5, 2008 AND ON MARCH 24, 2010." {¶15} Mother argues that she was denied due process of law for the October -4- Fayette CA2010-04-009 2008 contempt finding and March 24, 2010 sanction on that finding because a summons required by R.C. 2705.031 was not filed and served on her, and she was not afforded adequate notice and reasonable time to prepare her defense. {¶16} Procedural due process is guaranteed in contempt proceedings and where shared parenting plans are terminated, parental rights are modified, and child support payments are ordered. Whitman v. Whitman, Hancock App. No. 5-05-36, 2007-Ohio-4231, ¶16. {¶17} R.C. 2705.031(B)(1) states, in part, that: "Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support." {¶18} R.C. 2705.031(B)(2), as applicable here, states: "Any parent who is granted parenting time rights under a parenting time order or decree * * * or any other person who is subject to any parenting time or visitation order or decree, may initiate a contempt action for a failure to comply with, or an interference with, the order or decree." {¶19} According to R.C. 2705.031(C): "In any contempt action initiated pursuant to division (B) of this section, the accused shall appear upon the summons and order to appear that is issued by the court. The summons shall include all of the following: {¶20} "(1) Notice that failure to appear may result in the issuance of an order of arrest, and in cases involving alleged failure to pay support, the issuance of an order for the payment of support by withholding an amount from the personal earnings of the accused or by withholding or deducting an amount from some other asset of the accused; -5- Fayette CA2010-04-009 {¶21} "(2) Notice that the accused has a right to counsel, and that if indigent, the accused must apply for a public defender or court appointed counsel within three business days after receipt of the summons; {¶22} "(3) Notice that the court may refuse to grant a continuance at the time of the hearing for the purpose of the accused obtaining counsel, if the accused fails to make a good faith effort to retain counsel or to obtain a public defender; {¶23} "(4) Notice of the potential penalties that could be imposed upon the accused, if the accused is found guilty of contempt for failure to pay support or for a failure to comply with, or an interference with, a parenting time or visitation order or decree." {¶24} Courts have determined that the failure of the trial court to follow the mandate of the procedural statute is prejudicial error. In re Yeauger (1992), 83 Ohio App.3d 493, 498-499; see, also Benjamin v. Benjamin (Dec. 30, 1997), Franklin App. No. 97APF07-875, 1997 WL 799471. When the legislature mandates specific notice requirements, the courts are required to substantially comply with the statute. In re Yeauger at 498-499 [citations omitted]. Additionally, even if no penalty was imposed for the finding of contempt, the finding itself has prejudicial collateral consequences as R.C. 2705.05 imposes enhanced fines and potentially longer jail terms for subsequent contempt convictions. Martin v. Martin (June 30, 2000), Jefferson App. No. 97-JE-11, 2000 WL 875392. {¶25} In the instant case, mother's trial counsel did not contest the absence of a summons, but focused her inability to fully defend against a motion filed that same day. According to the record, mother's counsel told the court that they were prepared to provide mother's testimony "as far as what happened yesterday but we would -6- Fayette CA2010-04-009 certainly ask that this --- we are unable to bring in other witnesses at this time regarding what happened based on the short notice of this hearing, and certainly other witnesses that would support mother's testimony regarding what happened yesterday. But based upon the necessity for this hearing at this time we will certainly go forward with what we have." {¶26} It is clear that no summons purporting to provide the notification contained in R.C. 2705.031 is found in the record. Under the specific facts of this case, we find the absence of the summons, coupled with the order compelling mother to respond to and defend the contempt motion on the same day it was served, was prejudicial error. The October 17, 2008 contempt finding and the sanction issued for this finding on March 24, 2010 is reversed. See Poptic v. Poptic, Butler App. No. CA2005-06-145, 2006-Ohio-2713, ¶3-11; see, also, R.C. Chapter 2705. {¶27} Mother's first assignment of error is sustained. {¶28} Assignment of Error No. 2: {¶29} "THE CONTEMPT FINDING OF NOVEMBER 5, 2008 AND MARCH 24, 2010 WAS AN ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW." {¶30} Based upon our determination under mother's first assignment of error, this assignment of error is rendered moot. {¶31} Assignment of Error No. 5: {¶32} "THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT IN CONTEMPT ON JULY 1, 2010 AND THE PURGE ORDER WAS AN ABUSE OF DISCRETION, AND AGAINST THE MANIFEST WEIGHT OF THE -7- Fayette CA2010-04-009 EVIDENCE AND THE FINDING THAT APPELLEE OVERPAID SUPPORT WAS CONTRARY TO LAW AND ABUSE OF DISCRETION." [SIC] {¶33} The record indicates that father filed a contempt motion against mother in July 2009 and mother moved for a contempt finding against father in October 2009. The juvenile court told the parties that the contempt motions would be heard separately from the custody evidentiary hearings that were held in 2009. The hearing on the contempt motions was held June 22, 2010. {¶34} First, we note that mother raised objections to service of the contempt motion, arguing that she received the motion, but did not receive the summons. The juvenile court overruled her objections finding that the certified mail service was completed, according to the clerk. We note that the record appears to indicate that neither mother nor father received the other parties' summons sent to them, as both were returned to the court in their certified mail envelopes after unsuccessful service attempts in 2009. {¶35} Contempt motions in this case have certainly proven procedurally problematic. Both parties appeared to be aware of the nature and substance of the 2009 contempt motions and were given an opportunity to prepare and defend in 2010. Therefore, we find that mother was not prejudiced by any notice deficiencies for the contempt findings at issue in this assignment of error. Cf. Sansom v. Sansom, Franklin App. No. 05AP-645, 2006-Ohio-3909, ¶31 (record fails to demonstrate that the insufficient notice prejudiced defendant). {¶36} The contempt motion against father concerned his payment of his portion of the child's uncovered medical expenses; father's contempt allegations against mother alleged violation of court orders pertaining to support, medical bills -8- Fayette CA2010-04-009 and insurance, and an order that the parties communicate with each other to attempt to resolve parenting time issues. {¶37} While contempt can be direct or indirect, this matter clearly concerns indirect contempt, which is defined as behavior that occurs outside the presence of the court and demonstrates a lack of respect for the court or its lawful orders. Sansom at ¶23. {¶38} Although punishment is inherent in contempt, courts will categorize the penalty as either civil or criminal. In re J.M., Warren App. No. CA2008-01-004, 2008Ohio-6763, ¶47. The distinction between civil and criminal contempt depends upon the character and purpose of the sanctions imposed. Id.; State ex rel. Johnson v. Perry Cty. Court (1986), 25 Ohio St.3d 53, 55, superseded on other grounds (never been a clear demarcation between criminal and civil contempt). {¶39} If the sanctions are primarily for reasons benefiting the complainant and are remedial and coercive in nature, the contempt is civil in nature. Devonchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16. In the context of a civil contempt proceeding, prison sentences are conditionally imposed. Id. The "contemnor is said to carry the keys of his prison in his own pocket," and the sentence will be suspended or terminated if the contemnor complies with the court's order. In re J.M. at ¶47; see also McComb v. Jacksonville Paper Co. (1949), 336 U.S. 187, 191, 69 S.Ct. 497 (civil contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained because of noncompliance). {¶40} A key aspect of a civil contempt as opposed to one that is purely criminal, is the opportunity for the contemnor to purge herself of the contempt -9- Fayette CA2010-04-009 sanction, and the discontinuation of the sanction once compliance is achieved. In re Purola (1991), 73 Ohio App.3d 306, 311-312. Whereas criminal contempt is usually characterized by unconditional fines or prison sentences, one found guilty of civil contempt must be allowed to purge herself of the contempt by showing compliance with the court's order she is charged with violating. Id.; see, also, Edminister v. Edminister, Summit App. No. 25428, 2011-Ohio-1899, ¶9. {¶41} R.C. 2705.05(A) states, in pertinent part, that: "In all contempt proceedings, the court shall conduct a hearing. At the hearing, the court shall investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge. If the accused is found guilty, the court may impose any of the following penalties: {¶42} "(1) For a first offense, a fine of not more than two hundred fifty dollars, a definite term of imprisonment of not more than thirty days in jail, or both; {¶43} "(2) For a second offense, a fine of not more than five hundred dollars, a definite term of imprisonment of not more than sixty days in jail, or both; {¶44} "(3) For a third or subsequent offense, a fine of not more than one thousand dollars, a definite term of imprisonment of not more than ninety days in jail, or both." {¶45} When reviewing a finding of contempt, including a trial court's imposition of penalties, an appellate court applies an abuse of discretion standard. Fidler v. Fidler, Franklin App. No. 08AP-284, 2008-Ohio-4688, ¶12. {¶46} Father withdrew his allegation that mother was in contempt for failing to repay an amount of child support he alleged he overpaid. Father argued that he overpaid the support when the child was in mother's custody because the Fayette - 10 - Fayette CA2010-04-009 County Child Support Enforcement Agency (CSEA) collected processing fees on the support order but forwarded that amount to mother with the support. Instead of including the "overpayment" as a contempt issue, father asked the court to order mother to pay him the "overpayment." The juvenile court ordered mother to pay father $633.70 within 30 days of the filing of the entry. {¶47} The juvenile court made no contempt finding against father on mother's motion. The court found mother in contempt for failing to give father the password to access the child's health insurance so father could communicate with the insurance company. The court imposed a $100 fine, costs, and ten days in jail. The jail time was "stayed," fine and costs to be paid within 30 days of the filing of the entry. Mother was also found in contempt for failing to pay 50 percent of uncovered medical expenses for the child. The sanction was a $100 fine, costs, and ten days in jail. {¶48} The court said mother could purge herself of contempt for the uncovered medical expenses by paying directly to father $127.14, which was her 50 percent share of the uncovered medicals, "$677.70" [sic] to reimburse father for his "over-payment" of child support when CSEA did not retain the processing fees, and $1,134, which was the entire amount of child support arrearage mother owed "by July 30, 2010." The court stated that "[u]pon plaintiff filing proof of the above payments with the Court the 10 days in jail will be automatically stayed indefinitely." [sic] {¶49} We cannot say the juvenile court abused its discretion when it found mother in contempt for failing to provide the password and for failure to pay her portion of the child's uncovered medical expenses. See Rapp v. Pride, Butler App. No. CA2009-12-311, 2010-Ohio-3138, ¶17 (court must make civil contempt finding based on clear and convincing evidence). However, as we will discuss more fully - 11 - Fayette CA2010-04-009 below, most of the sanctions or punishments imposed cannot stand. {¶50} Prison sentences are conditional in cases of civil contempt and because a civil contempt sanction is coercive in nature, the contemnor must be afforded the opportunity to purge his contempt. U.S. Bank Natl. Assn. v. Golf Course Mgt., Inc., Clermont App. No. CA2008-08-078, 2009-Ohio-2807, ¶16. {¶51} A trial court abuses its discretion when it orders conditions for purging that are unreasonable or impossible for the contemnor to meet. Pavlic v. Barium & Chemicals, Inc., Jefferson App. No. 02 JE 33, 2004-Ohio-1726, ¶71. The determination of whether a particular purge condition is unreasonable or impossible varies on a case-by-case basis and the contemnor must present sufficient evidence at the contempt hearing that the trial court's purge conditions are unreasonable or impossible for the contemnor to meet. Id. {¶52} We find no abuse of discretion with the purge condition that mother pay $127.14, which the court determined was her share of the child's uncovered medical expenses. Mother was found in contempt for failing to pay this amount. {¶53} However, we find unreasonable the purge conditions that accelerated payment of the support arrearage and imposed a similar 30-day deadline on mother for payment of father's "overpayment" of support, which mother was not previously ordered to pay. {¶54} The arrearage accumulated from the time the juvenile court ordered mother to support the child at the change of custody until the support order was filed. According to the record, mother was paying on the child support arrearage. Father wanted the arrearage payments accelerated. The juvenile court stated in its decision that it would order the arrearages paid within 30 days of the order based on the - 12 - Fayette CA2010-04-009 "refunds received by plaintiff." We assume the "refunds" to which the juvenile court is referring is the $4,596.94 it mentioned mother received from a medical provider once father's insurance company processed and paid its portion of the medical claims for the child. {¶55} Mother said she paid the medical bills mostly by credit card. The $4,596.94 reimburses mother for the payments, i.e., the debt incurred by her. This is not a windfall from which the arrearage could be accelerated. In addition, mother was not found in contempt on this issue. This purge condition is not reasonable and not directly related to the contempt finding. Cf. Offenberg v. Offenberg, Cuyahoga App. Nos. 78885, 78886, 79425, 79426, 2003-Ohio-269, ¶78 (appeals court upheld purge order, finding it was directly related to the contempt and clearly directed toward compelling appellant to obey the court order). {¶56} We further find that the juvenile court abused its discretion in ordering mother to pay father's overpayment of support (when CSEA did not keep the processing fee it collected) as a purge condition. First, portions of the juvenile court's decision and the exhibits admitted at the hearing indicate that the "overpayment" was $633.70, not $677.70. As previously noted, mother was not ordered to pay these funds to father before the contempt hearing. Mother was not found in contempt on this issue. This attempts to regulate future conduct. Orders that purport to regulate future conduct do not provide the party with a true opportunity to purge and can have no effect because any effort to punish a future violation would require a new notice, hearing, and determination. See Ryder v. Ryder, Stark App. No. 2001CA00190, 2002-Ohio-765; cf. Offenberg at ¶78. {¶57} Further, the sanction for this contempt must also be addressed by the - 13 - Fayette CA2010-04-009 juvenile court under the authority of Pugh v. Pugh (1984), 15 Ohio St.3d 136. In Pugh, the Ohio Supreme Court stated that when two or more violations are brought in a single contempt action and during one hearing, the person found guilty of contempt cannot be punished for each violation. Id. at 142-143; O'Neill v. Bowers (Nov. 29 1990), Franklin App. No. 90AP-130, 1990 WL 189897. Therefore, mother could only receive one sentence for the July 1, 2010 contempt finding. The first finding in the July 1, 2010 entry regarding the failure to provide the health insurance password contained no purge order. The second finding concerning the unpaid medical expenses contained unreasonable purge orders. This matter must be reversed and remanded to the juvenile court for further proceedings. {¶58} Mother also challenges the juvenile court's award of $750 in attorney fees to father. We have reviewed the record with regard to the award of attorney fees and cannot say the court abused its discretion in that regard. See R.C. 2151.23; see, also, R.C. 3109.051; see Tener v. Tener-Tucker, Warren App. No. CA2004-05061, 2005-Ohio-3892, ¶37. {¶59} Mother's fifth assignment of error is overruled in part and sustained in part. {¶60} Assignment of Error No. 3: {¶61} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY MODIFYING THE RESIDENTIAL PARENT WHEN APPELLEE HAD FAILED TO COMPLY WITH THE MANDATORY PROCEDURAL REQUIREMENTS OF THE JUVENILE RULES OF PROCEDURE." [SIC] {¶62} Mother argues that father failed to file a motion to modify the child's residential parent, and his temporary custody expired after one year when father did - 14 - Fayette CA2010-04-009 not file a custody motion. She also avers that the decision by the juvenile court to give father temporary custody in 2008 was punishment for the contempt finding against mother. {¶63} As we previously noted, a party must have notice of the hearing and an opportunity to be heard to satisfy due process. Whitman, 2007-Ohio-4231 at ¶16. Father states that mother received sufficient notice of the custody matters and an opportunity to be heard when father's October 17, 2008 motion asked for any other order deemed in the best interest of the child, father made an oral motion for temporary custody at the beginning of the October 17 hearing, and evidentiary hearings were held with mother's participation. {¶64} While we are uneasy with the manner in which custody was originally awarded to father in October 2008, the record of the entire custody proceedings in juvenile court indicates that mother was not denied her due process rights. Further, a review of the record does not support the assertion that custody was used as a contempt sanction or that Juv.R. 14, regarding the expiration of temporary custody, was applicable in this case. {¶65} Mother's third assignment of error is overruled. {¶66} Assignment of Error No. 4: {¶67} "THE TRIAL COURT DENIED APPELLANT A FAIR TRIAL, ABUSED ITS DISCRETION IN EVIDENTIARY RULINGS, AND THE MODIFICATION OF CUSTODY WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." [SIC] {¶68} Mother asserts that the juvenile court committed close to 20 separate errors with regard to the custody determination. Some of these errors include issues - 15 - Fayette CA2010-04-009 related to depositions, the admission of hearsay and privileged testimony, alleged coaching of witnesses, and having the subpoena of mother's previous trial counsel quashed. {¶69} The juvenile court has broad discretion in the admission and exclusion of evidence and unless it has clearly abused its discretion and the appellant has been materially prejudiced thereby, the appeals court should be slow to interfere. See State v. Hymore (1967), 9 Ohio St.2d 122, 128. {¶70} We have reviewed the record before this court in consideration of all of the evidentiary issues offered by mother. We find either no error occurred or no error prejudicial to mother that would warrant reversal. See Evid.R. 103; Evid.R. 802; Evid.R. 803; Evid.R. 901; R.C. 2317.02; see In re Jones, 99 Ohio St.3d 203, 2003Ohio-3182; see State v Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906. {¶71} Mother also argues error in the juvenile court's limitation on the second GAL and the failure to allow cross-examination of the second GAL after she submitted her report. {¶72} According to the record, the second GAL submitted a report for the November 2009 evidentiary hearings, but told the court she needed additional time to investigate matters and supplemented the report in January 2010. Mother requested the opportunity to cross-examine the GAL either at a hearing or by deposition. The juvenile court implicitly denied the request in its March 24, 2010 decision. The court said in its decision that it had spent a lot of time hearing the testimony and "[t]he Court will decide from the evidence what to believe not from the statements of the GAL in the supplemental report which states her belief as to the factors required by the Ohio Revised Code 3109.04" [sic] * * * "The Court is of the opinion that there is - 16 - Fayette CA2010-04-009 enough in the record to make a decision and to grant additional hearings would only be to delay this matter further." {¶73} It does not appear from the record that the juvenile court limited the GAL's investigation to mother's prejudice. We note that the two GALs presented dissimilar recommendations to the juvenile court. The original GAL recommended custody to father. Now as the child's attorney, the original GAL indicated that her client wanted to live with his mother. The second GAL recommended that the child reside with mother. {¶74} The second GAL told the juvenile court in her reports that: father had not followed the recommendations of the child's psychiatrist and hadn't enrolled the child in counseling; father moved "several times since the change of custody; father works long hours, leaving the child in the care of the stepmother; she believed father changed the child's school in Idaho because he disagreed with the individualized education program (IEP) from the previous Idaho school. {¶75} The GAL noted that mother "seems to antagonize [the child] and encourages his bad behavior," and neither parent facilitates visitations nor can they agree about the child's medical and educational needs. However, both parties are actively involved in M.M.'s life and neither parent, according the GAL, is "a harm to the child." {¶76} The Ohio Supreme Court case of In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, stated in its syllabus that in "a permanent custody proceeding in which the guardian ad litem's report will be a factor in the trial court's decision, parties to the proceeding have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody recommendation." - 17 - Fayette CA2010-04-009 {¶77} We are aware that the Eleventh District in Allen v. Allen, Trumbull App. No. 2009-T-0070, 2010-Ohio-475, ¶34-40, stated that Hoffman should be applied to cases that do not pertain to permanent custody, noting that it was a due process issue to "be given the opportunity to cross-examine persons who prepare investigative reports for the court's consideration." Id., citing Hoffman. {¶78} However, the record in the case at bar indicates that while the juvenile court noted portions of the GAL report, it appeared to rely very little on the GAL's recommendations. We cannot say that the juvenile court's failure to permit mother to cross-examine the GAL was prejudicial to mother because the reports were more favorable to mother and the juvenile court appeared to consider the GAL's report as one factor of many it should consider in the custody determination. See Marsh v. Marsh (July 30, 2001), Butler App. No. CA2000-07-138, 2001 WL 848171; see In re Sydney J. (Sept. 30, 1999), Ottawa App. No. OT-99-026, 1999 WL 769571 (it is the trial court's responsibility to determine the GAL's credibility and the weight to be given to the report). {¶79} We turn now to the custody decision itself. Mother argues that the decision to change custody was an abuse of discretion, contrary to law, and against the manifest weight of the evidence. {¶80} According to the version of R.C. 3109.04 (B)(1) applicable to this case, * * * "in any proceeding for modification of a prior order of the court making the allocation of parental rights and responsibilities, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in - 18 - Fayette CA2010-04-009 chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation." {¶81} The applicable portions of R.C. 3109.04(E)(1)(a) states that a 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 or 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. The court shall retain the residential parent designated by the prior decree unless a modification is in the best interest of the child and one of the following applies: {¶82} "* * * (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." {¶83} According to R.C. 3109.04(F)(1): "In determining the best interest of a child pursuant to this section, * * * the court shall consider all relevant factors, including, but not limited to: {¶84} "(a) The wishes of the child's parents regarding the child's care; {¶85} "(b) If the court has interviewed the child in chambers * * *, the wishes and concerns of the child, as expressed to the court; {¶86} "(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; {¶87} "(d) The child's adjustment to the child's home, school, and community; {¶88} "(e) The mental and physical health of all persons involved in the situation; - 19 - Fayette CA2010-04-009 {¶89} "(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; {¶90} "(g) Whether either parent has failed to make all child support payments, including all arrearages, * * *; {¶91} "(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child * * *; {¶92} "(i) Whether the residential parent * * * has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court; {¶93} "(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state." {¶94} In determining whether a change of circumstances has occurred to warrant a change in custody, a trial judge, as the trier of fact, must be given wide latitude to consider all issues which support such a change. Davis v. Flickinger, 77 Ohio St.3d 415, 416, 1997-Ohio-260. The change of circumstances "must be a change of substance, not a slight or inconsequential change." Id. at 418. However, the change need not be "substantial." Id. at 417-418. {¶95} A highly deferential abuse of discretion standard is particularly appropriate in child custody cases, since the trial judge is in the best position to determine the credibility of the witnesses and there "may be much that is evident in the parties' demeanor and attitude that does not translate well to the record." Wyatt v. Wyatt, Portage App. No. 2004-P-0045, 2005-Ohio-2365, at ¶13. In so doing, a - 20 - Fayette CA2010-04-009 reviewing court is not to weigh the evidence, "but must ascertain from the record whether there is some competent evidence to sustain the findings of the trial court." Clyborn v. Clyborn (1994), 93 Ohio App.3d 192, 196. {¶96} The record indicates that the juvenile court was familiar with the circumstances of the child in mother's custody and the extended visits with father. The court found there were distinct differences between mother and father in their interactions with the child and the impact of those interactions on the child's behavior. {¶97} The court found that the child's health, demeanor, and general presentation had improved while in the father's custody. "The change of environment has benefitted [the child]." The court found that mother was "overly concerned" about everything the child was experiencing during the exchanges between the parents. According to the court, "It is clear that the separation anxiety for which [the child] was being treated was more the mothers own separation anxiety." [sic]. {¶98} The court found father's behavior regarding his son's health was more than adequate. While neither parent is a harm to the child, the court found that mother used doctors, counselors, and other people's advice to medicate or treat the child's bad behavior. "The father seems to handle [the child's] behavior like a normal parent." {¶99} The juvenile court found that mother "never effectively facilitated visitation by [the child] with his father in the past and there is nothing in the record to indicate that this would change in the future except a bare statement by the mother that in the future she will do better at encouraging visits." {¶100} The court, therefore, found that the differences between the parents in relation to the child are "a substantial change of conditions which warranted the - 21 - Fayette CA2010-04-009 change in temporary custody in October 2008, and in changing the legal custodian and residential parent of [the child] now." {¶101} The court also outlined its findings for the best interest of the child, looking at the wishes of the child, the in-camera interviews with the child, the child's interaction and interrelationships, specifically mentioning those in Idaho, the child's improved language skills with father, that briefly "regressed" after a visit to Ohio, the child's health and demeanor, the child's adjustment to the move to Idaho, and the facilitation of visitation or lack thereof. The court noted that father had always lived in Idaho and had not moved there during the case, and that any child support issues were "a wash" and benefitted neither party. {¶102} Custody cases present extremely difficult matters to address and this one is certainly no exception. We have carefully reviewed the record and all of the arguments set forth by mother. We cannot say the juvenile court abused its discretion or that the custody decision was contrary to law or against the manifest weight of the evidence. {¶103} Mother also argues that the juvenile court erred when it failed to consider the factors of R.C. 3109.051(D), in reference to the award of parenting time to mother. The juvenile court stated that mother should have the parenting time father was awarded when mother had custody. Mother argues that she deserved more custody because the child spent the first nine years of his life with her and her family. {¶104} R.C. 3109.051(D) states, in part, as applicable here, that: "In determining whether to grant parenting time to a parent pursuant to this section or [other sections], * * * in establishing a specific parenting time or visitation schedule, - 22 - Fayette CA2010-04-009 the court shall consider all of the following factors: prior interrelationships with parents and relatives; the geographical distance between parents; the available time of both the child and parent(s); age of the child; child's adjustment to home, school and community; wishes and concerns of the child; health and safety of the child; child's time with other siblings; mental and physical health of all parties; each parent's willingness to reschedule missed parenting time; whether the residential parent has denied the other parent's rights to parenting time; whether either parent is establishing a residence outside the state; and any other factor in the best interest of the child." {¶105} This court has previously said that when a trial court is ordering a modification of parenting time or visitation, the court must consider the enumerated factors in R.C. 3109.051(D) as well as any other factor in the child's best interest. Shafor v. Shafor, Warren App. No. CA2008-01-015, 2009-Ohio-191, ¶8. While it is always preferable for the trial court to mention R.C. 3109.051 and its factors, the court need not specifically refer to the statute, but the trial court's findings or the record should indicate that the court considered the statute and its factors when it rendered its decision. Id. {¶106} This case involved a battle over custody and whether custody should be changed; a modification of parenting time or visitation was not first and foremost at issue. The juvenile court considered issues related to many of the factors enumerated in R.C. 3109.051 and focused its determination on the best interests of the child. {¶107} While the trial court did not explicitly link the considerations to the factors found in R.C. 3109.051(D), it does appear that the trial court contemplated the - 23 - Fayette CA2010-04-009 same underlying concepts, and therefore, the trial court's failure to explicitly cite to the R.C. 3109.051(D) factors does not appear unreasonable, arbitrary, or unconscionable and thus does not constitute an abuse of discretion. See Evangelista v. Horton, Mahoning App. No. 08 MA 244, 2011-Ohio-1472, ¶ 47. {¶108} Mother's fourth assignment of error is overruled. {¶109} To the extent that appellant has raised other arguments under any of the five assignments of error, we have considered them and find them to be without merit. {¶110} Mother's December 17, 2010 motion to strike the June 22, 2007 trial transcript from the appellate record is not well taken and denied, but we note that the transcript was not considered by this court for purposes of this appeal. {¶111} Judgment reversed as to the November 5, 2008 and March 24, 2010 contempt orders against mother. {¶112} Judgment affirmed as to the award of custody to father. {¶113} Judgment affirmed in part as to the July 1, 2010 finding that mother was in contempt for failing to provide the password for access to her health insurance for the child and for failing to pay $127.14 as her portion of uncovered medical expenses. The July 1, 2010 contempt judgment is reversed in part as to the imposition of sentence as only one sentence is proper for the contempt and improper purge sanctions were used in reference to ordering mother, within 30 days of the entry, to pay both her child support arrearage of $1,134 and a support overpayment of $633.70 to father, and remanded for further proceedings. In addition to the remand for resentencing on the July 1, 2010 contempt, mother's child support arrearages and payment of $633.70 are also remanded to the juvenile court so that - 24 - Fayette CA2010-04-009 periodic payments of both amounts can be accurately determined as orders of the court. RINGLAND and HENDRICKSON, JJ., concur. - 25 -
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