[Cite as Schmoldt v. Schmoldt , 2024

- Ohio

- 513.]



## IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY

DANIEL R. SCHMOLDT,

Plaintiff

- Appellee,

- vs

-

JILL SCHMOLDT,

Defendant

- Appellant. CASE NO. 2023

- G

- 0018

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2014 DC 000049

O P I N I O N

Decided: February 12, 2024

Judgment: Affirmed in part, reversed in part, and remanded

Vincent A. Stafford

, Stafford Law Co., LPA, North Point Tower, 1001 Lakeside Avenue,

Suite 1300, Cleveland, OH 44114 (For Plaintiff

- Appellee).

Carol A. Szczepanik

, P.O. Box 214, 10808 Kinsman Road, Newbury, OH 44065 (For

Defendant

- Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Jill Schmoldt, appeals the May 4, 2023 judgment entry of the

Geauga County Court of Common Pleas adopting the magistrate’s decision. The trial

court denied appellee’s, Daniel Schmoldt ’s , Motion to Modify Allocation of Parental Rights

and declined to terminate the parties’ March 28, 2018 Amended Shared Parenting Plan

(“SPP”) ; granted appellee’s September 22, 2021 Motion to Show Cause regarding

appellant’s failure to timely enroll one of their minor children in mental health treatment

as required by a n August 18, 2021 Agreed J udgment Entry; and denied appellant’s2

Case No. 2023

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- 0018 Motion to Show Cause regarding appellee’s failure to comply with the Amended Sharded

Parenting Plan by not properly notifying appellant of travel plans.

{¶2} Appellant has raised seven assignments of error arguing the following: (1)

the trial court erred by finding appellant failed to enroll the minor child C a .S. in an intensive

outpatient treatment program (IOP) pursuant to the terms of the parties’ August 18, 2021

Agreed Judgment Entry; (2) the trial court abused its discretion by finding that appellant

admitted the minor child M a d .S. engaged in underage drinking while in appellant’s care;

(3) the trial court erred by not adopting the Guardian ad Litem’s (GAL) recommendation

to terminate the parties’ Amended Shared Parenting Plan; (4) the trial court erred by not

finding appellee in contempt for failing to timely notify appellant about travel plans with

two of the children ; (5) the trial court erred by determining appellant had voluntarily

dismissed a portion of her Motion to Show Cause; (6) the trial court erred by finding

appellant in contempt; and (7) the trial court erred by ordering appellant to pay $2,500 for

appellee ’s attorney fees.

{¶3} Having reviewed the record and the applicable caselaw, we find appellant’s

assignment s of error have some merit. The trial court did not abuse its discretion in finding

appellant violated the parties’ August 18, 2021 Agreed Judgment Entry when appellant

decided to wait to enroll Ca.S. in the IOP until December 2021 and the court did not err

in findi ng her in contempt and ordering her to pay $2,500 in attorney fees. Next, the trial

court did not abuse its discretion in finding appellant did not present suffi cient evidence

to prosecute her M otion to Show Cause for appel l ee’s failure to timely notify her about

travel plans with two of the children. Further, the trial court did not err in maintaining the3

Case No. 2023

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- 0018 Agreed Shared Parenting Plan where the court found doing so was in the best interest of

the minor children despite the parties’ communication issues.

{¶4} However, the trial court did err by failing to rule on a portion of appellant’s

Motion to Show Cause which she did not voluntarily dismiss. In addition, the trial court

erred in finding that appellant admitted to incidents involving Ma d .S

. engaging in

underage alcohol consumption under appellant’s care.

{¶5} Therefore, we affirm the judgment of the Geauga County Court of Common

Pleas in part, reverse in part, and remand with instructions for the trial court to rule on the

portion of appellant’s Motion to Show Cause relating to appellee’s failure to provide proof

of $7,500 support payment. Further, the trial court is instructed to correct its findings of

fact to reflect t hat appellant did not admit to any incidents involving Ma d .S. engaging in

underage alcohol consumption under appellant’s care.

Substantive and Procedural History

{¶6} Appellant and appellee were married on November 24, 2002

, and divorced

on July 11, 2014. The marriage produced four children, Mar.S. DOB 10

- 27

- 2003, Mad.S.

DOB 8

- 8

- 2005, Ca.S. DOB 11

- 12

- 2006, and Co.S

. DOB 4

- 12

- 2009. At the time of the

divorce, the parties used a standard parenting time schedule. However, the parties later

entered into an Agreed Amended Shared Parenting Plan (“SPP”) on March 28 , 2018. The

SPP was later modified through an Agreed Judgment Entry on August 18, 2021 (“MSPP” )

.

Mar.S. had been em ancipated by the time the underlying motions in this case were before

the trial court.

{¶7} Relevant to this appeal, the SPP provided that a parent taking a child on

vacation must notify the other parent 14 days in advance of the dates the children will be4

Case No. 2023

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- 0018 on vacation and to also provide “information regarding any flights by which the children

will be traveling, and an address and phone number at which the children can be reached

during vacation.”

{¶8} Also relevant, t he MSPP includ ed a provision relating to Ca.S.’s counseling.

It provided that C a .S. “shall immediately engage in an I ntensive Outpatient Treatment

Program (IOP) at either The Cleveland Clinic Foundation or Highland Springs. * * * In the

event that [Ca.S.] is unable to immediately engage in an IOP, Dr. Fulchiero shall

recommend a counsel or for [Ca.S.] and begin counseling as soon as possible.”

{¶9} On September 22, 2021, appellee filed a Motion to Modify Allocation of

Parental Rights and Responsibilities. He sought the modification because he claimed that

appellant was not facilitating possession of Ca.S. and had not complied with the

counseling requirements set forth in the MSPP

. In addition, appellee filed a Motion to

Show Cause regarding appellant’s failure to comply with the terms of the MSPP

. A ppellee

requested that appellant pay the attorney fees associated with prosecuting the Motion.

{¶10} On March 22, 2022, appellant filed a Motion to Show Cause regarding

appellee’s failure to comply with several provisions of various judgment entries. Appellant

claimed that appellee had not made timely property settlement payments on the 15th of

each month, making such payments as late as the 26th day of the month. Second, she

claimed appellant failed to provide evidence of a $7,500 support payment appellee

claimed to have made in July 2017 as required by an April 16, 2018 judgment entry

pertaining to an ov erpayment of spousal support

. Third, s he claimed that appellee had

previously been ordered to pay appellant $1,750 in attorney fees within 30 days of a

March 6, 2020 judgment finding appellee had filed an unmeritorious motion to show cause5

Case No. 2023

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- 0018 against appellant. She said appellee had failed to make such payment. Fourth

, appellant

claimed that appellee had not timely paid his share of extracurricular expenses for the

minor children within 30 days of receipt of the bill. Finally, appellant claimed appellee

violated the SPP by taking Mad.S. and Co.S. o ut of town on February 18, 2022 and that

she was not aware of the trip until one of the minor children informed her of it on February

1 6

, 2022. She also said that appellee failed to provide flight info rmation, incorrectly

informed appellant of the return time, and that the trip extended into her parenting time

by one

- half day.

{¶11} On July 18 and 19

, 2022, the trial court, through a magistrate, held a hearing

on the three pending post

- divorce decree motions.

{¶12} Counsel for appellee first moved to dismiss the portion of appellant’s Motion

to Show Cause because the $1,750 appellee owed for attorney fees had been reduced

to a judgment and was in collection proceedings. He therefore argued the trial court

lacked jurisdiction to proceed. Appellant opposed the dismissal and the magistrate said it

would reserve ruling on the Motion to Dismiss. On day two of the hearing, appellee

tendered a check for $1,750 and appellant voluntarily dismissed that aspect of her Motion

to Show Cause. However, appellant maintained all other portions of her Motion to Show

Cause, including appellee’s failure to provide evidence of the $7,500 support payment.

{¶13} Appellee testified that he regularly sees all of his children except for Ca.S.

He explained that he has only seen Ca.S. three times in the preceding year. He further

said he regularly communicates with all of his children but that Ca.S. does not engage

with him or attend parenting time with him.6

Case No. 2023

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- 0018 {¶14} Ca.S. suffers from depression and other mental health issues. Appellee said

that he and appellant have had a disagreement about how to best address these

concerns. In particular, appellee opposed providing medications to Ca.S. However,

appellant provided anxiety medications to Ca.S. and a ppellee became aware of this

because Ca.S. was hospitalized for an overdose

.

{¶15} He said that after the MSPP

, he attempted to have Ca.S

. immediately

enrolled in an IOP through Highland Springs. Both appellant and appellee attended an

initial intake meeting at Highland Springs in August. However, appellee said that appellant

“refused to enroll her because she said she was going to miss school. And I was more

concerned about, that, you know, all the events that had been taking place, and I thought

it was more important that she got counseling than school.” Appellee acknowledged that

Highland Springs needed to perform an assessment before determining what course of

treatment was appropriate for Ca.S. He denied that Highland Springs recommended an

outpatient treatment program at that time. Ca.S. did engage in an outpatient treatment

program beginning in December 2021.

{¶16} Appellant testified that Ca.S.’s school year had started by the time she and

appellee were able to have an intake meeting at Highland Springs. She further said that

Highland S prings did not offer inpatient treatment for Ca.S. and recommended a five

week outpatient program that meets four days per week, with meetings starting at 1:00

p

. m.

{¶17} Appellant said the program would “interrupt” Ca.S.'s “school day a lot, um,

so that was a major concern of mine. So I discussed it with Highland Springs and Dr.

Fulchiero and Rachel Croce what would be the best approach for getting her in that7

Case No. 2023

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- 0018 program. * * *[T]hey agreed that pulling her out of school would cause her more stress.”

Appellant denied that there was ever a suggestion to enroll Ca.S. in a three

- month

inpatient program. At the A ugust intake meeting, appellan t said the earliest Highland

Springs could offer Ca.S. an IOP would be “the next month or two” September or October

at the earliest. Appellant said that she and Ca.S. ’s healthcare providers felt she should

start an IOP that did not disturb her school schedule. Ca.S. started the outp atient program

in December during her school’s winter break

.

{¶18} On cross

- examination, appellant said she knew the legal requirements to

immediately enroll Ca.S. in the IOP and did not enroll her immediately, seek to modify the

court order, or provide documentation from Ca.S.’s healthcare providers to demonstrate

why a delay was necessary. She also admitted that Ca.S. improved after attending the

IOP in December, that she struggled between August and December, and would have

likely improved sooner had she attended the IOP sooner.

{¶19} Appellant recounted Ca.S.’s overdose incident. She said that Ca.S. had

some friends over at the house and discovered they were drinking alcohol and vaping.

Appellant confiscated the items and call ed the friends’ parents to pick them up. Later that

night Ca.S. woke appellant up to tell her she had taken all her anti

- depressants, vomited,

but was worried she could still be overdosing. Appellant took her to the hospital for

treatment.

{¶20} Appellant also recounted two instances where Ma d .S. became drunk. She

said Ma d .S. was at appellee’s house and appellant found out she had been drinking.

Appellant went to appellee’s house to pick up Ma d .S. and bring her to appellant’s house.

In a different incident, the school contacted appellant about Ma d .S. When appellant8

Case No. 2023

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- 0018 arrived, she found Ma d .S. “dehydrated and hung over.” S he had been at appellee’s house

the night before. Appellant denied there were other incidents involving drinking.

{¶21} Appellant testified that appellee had failed to provide evidence of the $7,500

property settlement check as required by the April 16, 2018 Judgment Entry and that such

payment was still outstanding. The issue related to the amount of an overpayment of

support. As a result of the overpayment, appellant claimed she did not receive her July

2017 monthly $7,500 payment while appellee maintained that he had made the payment.

The April 16, 2018 Judgment Entry determined that appellant would repay $1,116.34 to

appellee as an overage. It further stated that appellant would “provide evi dence of a

$7,500 payment * * * [made] in July 2017. The [appellant] will repay the [appellee] the

$7500 within seven days of receipt of such evidence.”

{¶22} Appellant next testified that appellee had failed to reimburse his share of

certain medical expenses and extracurricular activities. She also said that appellee

routinely made his monthly $7,500 property settlement payment late. She said he typically

sends the payment through the children and that the payments come late by a few days

to up to two weeks late.

{¶23} Finally, she testified that the children informed her on February 16, 2022,

that appellee was planning to take the children on a flight to Arizona on February 18,

2022. She received no response from appellee until February 1 8, after the flight had

departed. He said they would return on February 20 and provided a flight number, but no

flight time. Appellant said on February 20, she learned from Ma d .S. that they were not

returning until February 21. However, Ma d .S. decided to return early to attend softball9

Case No. 2023

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- 0018 tryouts and flew back by herself. Co.S. returned on February 21 with appellee. Appellant

said that February 21 was one of her parenting dates.

{¶24} The GAL

, Denise Cook

, testified about her report and evaluation of the

minor children. Cook recommended the termination of the parties’ Amended Shared

Parenting Plan because the parties were unable to communicate sufficiently to facilitate

shared parenting

. However, Cook acknowledged all of the children

, except Ca.S.

, were

doing well under the current plan. She also recommended that appellee’s parenting time

with Ca.S. “ be reinstated at the discretion of a reunification counselor[.]”

{¶25} T he magistrate issued findings of fact and conclusions of law on December

29, 2022. Relative to this appeal, the magistrate’s decision found appellant in contempt

of court by violating the terms of the MSPP by delaying Ca.S.’s enrollment in the Highland

Springs IOP. The decision also recommended that appellant pay $2,500 for appellee’s

attorney fees. The magistrate’s decision concluded appellant’s evidence was “insufficient

to support her claim” that appellee failed to provide adequate travel notice,

misrep resented travel dates, and deprived her of parenting time as a result of the travel

plans.

{¶26} The magistrate determined that appellant had dismissed the portion of her

show cause motion relating to appellee’s failure to pay $1,750 in attorney fees

. The

magistrate said that “the remaining prongs of [appellant’s] Motion to Show Cause, with

exception of [appellee’s] alleged refusal” to provide travel itinerary and deprivation of

parenting time “were also voluntarily dismissed by [appellant], without prejudice.”

{¶27} The magistrate’s decision determined it was not in the minor children’s best

interest to terminate or modify the shared parenting plan. However, with respect to Ca.S.,10

Case No. 2023

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- 0018 the decision recommended that appellee’s parenting time be held in abeyance pending

Ca.S. and appellee attend ing individual and joint counseling time with the aim of

reunification. The decision also concluded that appellant admitted to “an incident(s)

involving [Ma d .S.] and underage drinking while [Ma d .S] was in her care.”

{¶28} On January 12, 2023, appellant filed objections to the magistrate’s decision,

and after filing the transcript of the hearing, filed supplemental objections to the

magistrate’s decision. Appellant’s objections were substantively the same as her

assignments of error on appeal.

{¶29} On May 4, 2023, the trial court adopted the magistrate’s decision in its

entirety.

{¶30} Appellant timely appealed, raising seven assignments of error. Appellee

has not filed an answer brief.

Assignments of Error and Analysis

{¶31} For ease of discussion

, we address appellant’s assignments of error out of

order and at time s in a consolidated fashion.

{¶32} Appellant’s third assignment of error states:

{¶33} “[3.] The trial court erred and abused its discretion in not adopting the

Guardian ad Litem’s recommendation that the Amended Shared Parenting Plan be

terminated and that the Defendant Jill Schmoldt be made the custodial and residential

parent of the three minor children.”

{¶34} “[D]ecisions involving the custody of children are accorded great deference

on review.” In re K.R., 11th Dist. Trumbull No. 2010

- T

- 0050, 2011

- Ohio

- 1454, ¶ 28. “Thus,

any judgment of the trial court involving the allocation of parental rights and11

Case No. 2023

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- 0018 responsibilities will not be disturbed absent a showing of an abuse of discretion.” Id.

“When reviewing an appeal from a trial court’s adoption of a magistrate’s decision, an

appellate court must determine whether the trial court abused its discretion in adopting

the decision.” Huntington Natl. Bank v. Betteley , 11th Dist. Lake No. 2015

- L057, 2015

-

Ohio

- 5067, ¶ 17.

{¶35} “The term ‘abuse of discretion’ is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record.” State v. Underwood , 11th

Dist. Lake No. 2008

- L

- 113, 2009

- Ohio

- 208, ¶ 30, citing State v. Ferranto , 112 Ohio St.

667, 676

- 678 [148 N.E. 362] (1925).” State v. Raia , 11th Dist. Portage No. 2013

- P

- 0020,

2014

- Ohio

- 2707, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure

to exercise sound, reasonable, and legal decision

- making.’” Id. , quoting Stat e v. Beechler

,

2d Dist. Clark No. 09

- CA

- 54, 2010

- Ohio

- 1900, ¶ 62, quoting Black’s Law Dictionary 11

(8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere

fact that the reviewing court would decide the issue differently is enough to find error[.] *

* * By contrast, where the issue on review has been confined to the di scretion of the trial

court, the mere fact that the reviewing court would have reached a different result is not

enough, without more, to find error.’” Id. , quo ting Beechler at ¶ 67.

{¶36} “The 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’

demea nor and attitude that does not translate well to the record.’” In re K.R.

, supra

, at ¶

30, quoting Wyatt v. Wyatt , 11th Dist. Portage No. 2004

- P

- 0045, 2005

- Ohio

- 2365, ¶ 13.

“In so doing, a reviewing court is not to weigh the evidence, ‘but must ascertain f rom the12

Case No. 2023

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- 0018 record whether there is some competent evidence to sustain the findings of the trial

court.’” Id

., quoting Clyborn v. Clyborn , 93 Ohio App.3d 192, 196, 638 N.E.2d 112 (3d

Dist.1994).

{¶37} R.C. 3109.04(E)(2)(c) provides, “ [t] he court may terminate a prior final

shared parenting decree that includes a shared parenting plan * * * upon the request of

one or both of the parents or whenever it determines that shared parenting is not in the

best interest of the children.” “In determ ining whether shared parenting is in the best

interest of the children, the court shall consider all relevant factors, including, but not

limited to, the factors enumerated in” R.C. 3109.04(F)(1) and (F)(2). R.C. 3109.04 (F)(2).

{¶38} The factors in R.C. 3109.04(F)(1) are:

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

(b) If the court has interviewed the child in chambers pursuant to division

(B) of this section regarding the child’s wishes and concerns as to the

allocation of parental rights and responsibilities concerning the child, the

wishes and concerns of the chil d, as expressed to the court;

(c) The child’s interaction and interrelationship with the child’s parents,

siblings, and any other person who may significantly affect the child’s best

interest;

(d) The child’s adjustment to the child’s home, school, and community;

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

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

- approved parenting

time rights or visitation and companionship rights;

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

including all arrearages, that are required of that parent pursuant to a child

support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent

previously has been convicted of or pleaded guilty to [certain criminal

offenses] * * *;13

Case No. 2023

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- 0018 (i) Whether the residential parent or one of the parents subject to a shared

parenting decree has continuously and willfully denied the other parent’s

right to parenting time in accordance with an order of the court;

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

establish a residence, outside this state.”

{¶39} The factors in R.C. 3109.04(F)(2) are :

(a) The ability of the parents to cooperate and make decisions jointly, with

respect to the children;

(b) The ability of each parent to encourage the sharing of love, affection,

and contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse, other

domestic violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the proximity

relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, if the child

has a guardian ad litem.” R.C. 3109.04(F)(2)(a)

- (e).

{¶40} The trial court said that the evidence presented indicated that, with respect

to Ma d .S. and Co.S., the parties have “functioned and operated effectively under the

terms of the Shared Parenting Plan and Amended Shared Parenting plan with respect to

their care and support.” Thus, the court did not consider termination of the Amended

Shared P arenting P lan to be in the best interest of Ma d .S. or Co.S.

{¶41} However, the trial court said that appellant and appellee have “ not ” been

able to communicate effectively in their “attempt to parent” Ca.S. “This inability and failure

of both parties has, in turn, caused a severe disruption in appellee’s parenting time and

his relationship with [Ca.S.].” The court said: “Both parents sh are the blame here” noting

that appellant has made unilateral healthcare and treatment decisions , including “her

decision to delay [Ca.S.’s] entry into the IOP at Highland Springs until Win ter, 2021.”

Conversely, the court found that appellee “has refused to acknowledge that [Ca.S.] faces14

Case No. 2023

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- 0018 mental health challenges * * *. [Appellee] seems unwilling or unable to accept the fact

that his * * * daughter is different from her siblings.” The court concluded: “Both parties’

attitudes and actions have caused a stalemate to ensue * * *.”

{¶42} The court decided the evidence it received did not support a change in

custody or termination in the Amended Shared Parenting Plan because “[b]oth parties’

opinions and points of view have served [Ca.S.] and the parties’ other children well in the

past and it is in [Ca.S.’s] best interest that joint decision

- making be maintained.” The court

did determine that appellee’s parenting time with Ca.S. should be held in abeyance

pending Ca.S. and appellee attending reunification counseling sessions.

{¶43} In Thomas v. Thomas , 11th Dist. Trumbull No. 2023

- T

- 0015, 2023

- Ohio

3941

, we addressed a similar inability of the parents to cooperate and make decisions

jointly with respect to their children. Id. at ¶ 45. Although under R.C. 3109.04(F)(2)(a) this

factor constitutes grounds for terminating a shared parenting plan, we noted that

termination of a shared parenting plan “is not required whenever this factor is implicated.”

Id. at ¶ 45

- 46. In Thomas we affirmed the trial court’s decision to maintain a shared

p arenting plan where the trial court found the “dynamic” between the parties was “working

for the benefit of” the children and that their “cooperation and communication problems

were not detrimental to the children.” Id. at ¶ 48.

{¶44} Here, the magistrate’s decision appropriately considered the applicable

factors in R.C. 3109.04(F)(1) and (F)(2) in determining the children's best interest, and its

findings are supported by competent, credible evidence in the record. T he trial court did

not abuse its discretion in adopting the magistrate's decision.

{¶45} Accordingly, appellant’s third assignment of error is without merit.15

Case No. 2023

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- 0018 {¶46} Appellant’s first , sixth, and seventh assignment s of error state:

{¶47} “[1.] The trial court erred and abused its discretion by finding that the

Defendant Jill Schmoldt failed to enroll [Ca.S.] in an IOP at Highland Springs pursuant to

the terms of the parties’ agreed judgment entry filed on A ugust, 18, 2021.”

{¶48} “[6.] The trial court erred and abused its discretion in finding Defendant Jill

Schmoldt in contempt for a violation of the agreed judgment entry filed on A ugust 18,

2021, because of her delay in enrolling [Ca.S.] in an IOP at Highland Springs.”

{¶49} “[7.] The trial court erred and abused its discretion in order ing that the

Defendant Jill Schmoldt pay $2,500 of the Plaintiff Daniel Schmoldt’s legal fees.”

{¶50} Appellant argues that the trial court abused its discretion by finding her in

contempt of court for failing to immediately enroll Ca.S. in the Highland Springs IOP. She

also challenges the order to pay appellee’s attorney fees in the amount of $2,500 on th e

basis that the court erred in finding her in contempt.

{¶51} “‘Contempt is a disregard of, or disobedience to, the orders or commands

of judicial authority. Indirect contempt may include the disobedience of, or resistance to,

a lawful order, judgment, or command of a court officer.’” Miller v. Miller , 11th Dist.

Trumbull No. 2019

- T

- 0048, 2020

- Ohio

- 6914, ¶ 8, quoting Dozer v. Dozer

, 88 Ohio App.3d

296, 623 N.E.2d 1272 (4th Dist.1993) . “ Where the contempt allegation is based on

violation of a court order, the order must be clear and definite with respect to the precise

conduct constituting disobedience.” Lanza v. Lanza , 11th Dist. Lake No. 2023

- L

- 024,

2023

- Ohio

- 3531, ¶ 7, citing Does v. Univ. Hosps. Health Sys ., Inc., 2023

- Ohio

- 2120, 218

N.E.3d 1082, ¶ 18

- 19 (11th Dist.); Cain v. Cain , 11th Dist. Portage No. 2017

- P

- 0084,

2019

- Ohio

- 184, ¶ 21.16

Case No. 2023

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- 0018 {¶52} The burden of proof for finding civil contempt is clear and convincing

evidence. Kolenic v. Kolenic , 2018

- Ohio

- 1106, 109 N.E.3d 582, ¶ 18 (11th Dist.)

. “Clear

and convincing evidence is * * * evidence sufficient to produce in the mind of the trier of

fact a firm belief or conviction as to the facts sought to be established.” In re Janson

, 11th

Dist. Geauga No. 2005

- G

- 2656, 2005

- Ohio

- 6712, ¶ 33

. “A reviewing court ‘will not

reverse the decision of the court below in a contempt proceeding in the absence of a

showing of an abuse of discretion.’” Kolleda v. Kolleda

, 11th Dist. Lake No. 2013

- L

- 069,

2014

- Ohio

- 2013, ¶ 42 , citing State ex rel. Ventrone v. Birkel

, 65 Ohio St.2d 10, 11, 417

N.E.2d 1249 (1981)

.

{¶53} A person charged with contempt of court for violating a court order may

defend the charge by proving it was not in the person’s power to obey the order. Stychno

v. Stychno

, 11th Dist. Trumbull No. 2008

- T

- 0117, 2009

- Ohio

- 6858, ¶ 38 , citing Courtney

v. Courtney

, 16 Ohio App.3d 329, 334, 475 N.E.2d 1284 (3d Dist.1984) . “Once a person

seeking contempt has demonstrated a defendant’s failure” to comply with the court order,

“the burden of proof shifts to the defendant to prove” the impossibility of compliance.

Smith v. Smith

, 11th Dist. Geauga No. 2013

- G

- 3126, 2013

- Ohio

- 4101, ¶ 41 (Addressing

the inability to pay child support).

{¶54} Appellant argues that she was unable to immediately enroll Ca.S. in the

Highland Springs IOP. She asserts that she did not immediately enroll Ca.S. because

Ca.S. had already begun the school year by the time appellant and appellee had an intake

meeting at Highland Springs i n August 2021. She argues that Highland Springs did not

offer an inpatient treatment program, and the outpatient treatment program did not have

any openings until September or October. Appellant also said that she and Ca.S.’s17

Case No. 2023

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- 0018 doctors felt it would be better for Ca.S. to wait until the winter school break to avoid missed

classes because “ pulling her out of school would cause her more stress.” Therefore,

appellant did not enroll Ca.S. in the Highland Springs IOP until December 2021.

{¶55} Appellant admitted that she knew the legal requirements to immediately

enroll Ca.S. in the IOP and did not enroll her immediately, seek to modify the court order,

or provide documentation from Ca.S.’s healthcare providers to demonstrate why a delay

was necessary. She said that despite the court order, she “took into consideration * * *

[Ca.S.’s] medical issues.” Appellant said that she “ along with Ca.S.’s medical providers

were “part of the decision” to delay enrolling Ca.S. in the IOP. Appellant said there was

an op en ing one or two months out, but that she “went with the medical advice” and chose

not to enroll Ca.S. until the winter break. She also admitted that Ca.S. improved after

attending the IOP in December, that she struggled between August and December, and

would have likely improved sooner had she attended the IOP sooner.

{¶56} The trial court concluded that appellant had provided an affirmative defense

and was not in contempt for withholding parenting time from appellee with regard to Ca.S.

refusing to spend time with him. However, the trial court said the “same conclusion is not

true with respect to the issue of [appellant’s] actions relating to her responsibility to” enroll

Ca.S. in the Highland Springs IOP. The court found that appellee proved a violation of the

terms of the August 18, 2021 Judgment Entry because appellant “wai ted to enroll [Ca.S]

for a program to occur during the Winter School Break, 2021

- 22.”

{¶57} We agree with the trial court. Appellant’s own testimony indicated that Ca.S.

could have been enrolled in the Highland Springs program by October at the latest and

that doing so would have inured to her benefit

. However, appellant did not enroll Ca.S.18

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- 0018 until December based on her decision that it would be best for Ca.S. to avoid missing

afternoon classes. A lthough a ppellant came to this conclusion by discussing the matter

with Ca.S.’s medical providers, appellant did not seek a variance of the August 18, 2021

Judgment Entry, but instead decided, over appellee’s objections, to delay enrolling Ca.S.

in the IOP.

{¶58} The trial court did not abuse its discretion in adopting the magistrate’s

decision finding appellant failed to comply with the terms of the August 18, 2021 Judgment

Entry and finding her in contempt therefor. Further, the trial court did not err in orderin g

appellant to pay $2,500 of appellee’s attorney fees incurred in prosecuting his Motion to

Show Cause.

{¶59} Accordingly, appellant’s first , sixth, and seventh assignment s of error are

without merit

.

{¶60} Appellant’s fourth assignment of error states:

{¶61} “[4.] The trial court erred and abused its discretion by finding that Daniel

Schmoldt should not be held in contempt for his travel with two of the minor children

immediately preceding the President’s Day weekend in February 2022.”

{¶62} Appellant next argues that the trial court abused its discretion by not finding

appellee in contempt of court in relation to his travel with Ma d .S. and Co.S.

{¶63} The magistrate’s decision noted appellant’s testimony about the events

surrounding the trip and appellee’s alleged lack of communication about the trip, the

misrepresentation about the return flight, and Co.S. missing one

- half day of parenting

time with ap pellant. However, the magistrate’s conclusion of law on this issue found that

appellant offered insufficient evidence to support her Motion to Show Cause.19

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- 0018 {¶64} We are mindful of the high degree of deference we are to exercise in

reviewing a trial court’s adoption of the magistrate’s decision with regard to contempt

proceedings. Our role is not to weigh the evidence but to ascertain from the record

whether there i s some competent evidence to sustain the trial court’s decision. See In re

K.R.

, 2011

- Ohio

- 1454 , ¶ 30.

{¶65} The magistrate conducted a two

- day hearing and heard testimony from

appellant and appellee on this issue. It is noteworthy that counsel for appellant did not

elicit any testimony from appellee himself about his alleged failure to provide timely flight

information, his misrepresentation of the return flight times, and Co.S. missing parenting

time with appellant

.

{¶66} By way of contrast, appellee’s Motion to Show Cause in relation to C a .S.’s

IOP included testimony from both appellee and appellant . A ppellant herself offered her

reasoning as to why she chose to delay Ca.S.’s enrollment in the IOP , which the trial court

found was in violation of the August 18, 2021 Judgment Entry . With respect to appellant’s

claim that appellee did not provide notic e for travel, appellant presented her Motion to

Show Cause solely through her own unsupported testimony. The trial court did no t abuse

its discretion in determining that appellant did not provide clear and convincing evidence

of appellee’s failure to provide timely travel plans or cause appellant to miss one

- half day

of parenting time.

{¶67} Accordingly, appellant’s fourth assignment of error is without merit.

{¶68} Appellant’s fifth assignment of error states:20

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- 0018 {¶69} “[5.] The trial court erred and abused its discretion in finding that the

contempt charge relating to the court order of April 16, 2018, had been voluntarily

dismissed by the Defendant Jill Schmoldt.”

{¶70} A ppellant argues that the trial court abused its discretion in adopting the

magistrate’s finding of fact that she voluntarily dismissed the portion of her Motion to Show

Cause relating to the April 16, 2018 Judgment Entry with regard to appellee’s failure to

provide evidence of the $7,500 property settlement check.

{¶71} While it is true that appellant voluntarily dismissed the portion of her Motion

to Show Cause relating to the $1,750 payment for attorney fees, the magistrate recited

the remaining outstanding issues to be determined on the record and listed “the issue of

[appellee] providing evidence of payment to the * * * $7,500.00 property division payment

due in July of 2020” as one of the remaining issues to be determined.

{¶72} However, the magistrate’s decision incorrectly indicated that appellant had

also voluntarily dismissed this issue. Appellant properly raised this issue in her objections

to the magistrate’s decision . However, the trial court adopted the magistrate’s decision

and did not rule on this issue.

{¶73} Accordingly, appellant’s fifth assignment of error has merit.

{¶74} Appellant’s second assignment of error states:

{¶75} “[2.] T he trial court erred and abused its discretion by finding that the minor

child [Mad.S.] engaged in underage drinking while in the care of the Defendant Jill

Schmoldt.”

{¶76} Appellant argues that the trial court abused its discretion in adopting the

magistrate’s finding of fact that she admitted to an incident involving Mad.S. engaging in21

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- 0018 underage alcohol consumption under her care. The trial court found “Jill admitted to an

incident(s) involving [Mad.S.] under underage drinking while [Mad.S.] was in her care.

Said incident had occurred at her residence in the Fall of 2021 and another in February,

2022, that caused [Mad.S.] to pass ou t.” Our review of the transcript indicates that

appellant acknowledged an incident that occurred under her care where Ca.S. consumed

alcohol and was vaping while friends visited , that appellant had the friends ’ parents pick

them up, and that later that night, Ca.S. overdosed on medication

.

{¶77} However, appellant did not admit to any incident involving Mad.S. and no

evidence supports such a conclusion. During the hearing, appellant testified that one of

Mad.S.’s friends contacted her about Mad.S. consuming alcohol while she was with

appellee. Appellant was unable to contact appellee and “made the decision to go over

and pick her up.” When appellant arrived, she found Mad.S. was “completely drunk.”

Appellant testified to a subsequent incident in February and said that she was contacted

to pick Mad. S. up from school because she had passed out in the hallway. Appellant said

that Mad.S. had spent the night at appellee’s house and had been drinking the night

before.

{¶78} In short, there was no evidence to indicate that Ma d .S. consumed alcohol

while she was under appellant’s care. Appellant testified that Mad.S. had two incidents

involving alcohol consumption. However, she said these incidents occurred while Ma d .S.

was under appellee’s care . Appellant denied that these incidents occurred under her care

and we find no evidence to indicate these incidents did in fact occur under appellant’s

care. Therefore, the trial court ’s adopting t he magistrate’s finding of fact that appel lant22

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- 0018 “admitted to an incident(s) involving [Ma d .S] and underage drinking while Ma d .S. was in

her care” was an abuse of discretion.

{¶79} Accordingly, appellant’s second assignment of error has merit.

{¶80} For the foregoing reasons, the judgment of the Geauga County Court of

Common Pleas is affirmed in part, reversed in part, and remanded

. On remand, the trial

court is instructed to rule on the portion of appellant’s Motion to Show Cause relating to

appellee’s failure to provide proof of $7,500 property settlement payment. Further, the

trial court is instructed to correct its findings of fact to reflect that appellant did not admit

to any incidents involving Ma d .S. engaging in underage alcohol consumption und er

appellant’s care.

MARY JANE TRAPP, J.

,

MATT LYNCH, J.

,

concur.