[Cite as In re C.L.W., 2024-Ohio-1519.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE:

C.L.W.

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:

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CASE NO. CA2023-07-048

O P I N I O N

4/22/2024

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

JUVENILE DIVISION

Case No. 2020 JG 25788

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for appellant.

Taft, Stettinius & Hollister LLP, and Aimee L. Keller, for appellee.

M. POWELL, J.

{¶ 1} Appellant ("Father") appeals a decision of the Clermont County Court of 

Common Pleas, Juvenile Division, continuing the shared parenting plan he entered into 

with appellee ("Mother") regarding their daughter.

{¶ 2} The parties are the biological parents of C.L.W. ("Chloe") who was born in 
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September 2012.1 Mother and Father were never married to each other. Parental rights 

and responsibilities for Chloe were allocated between the parties pursuant to a shared 

parenting plan ("SPP") filed in the Fairfield County Domestic Relations Court on 

November 5, 2014. At the time the SPP was originally filed, Mother was a Fairfield County 

resident and Father was a Ross County resident. Under the plan, Father had parenting 

time with Chloe on Wednesdays after school until 8:00 p.m., alternating weekends from 

Friday to Sunday, spring break on even-number years, and five weeks of extended 

summer parenting time. The plan provided that the parties jointly make decisions in 

Chloe's best interest and in the event of an impasse, Father was granted authority to 

make non-mental health medical decisions and Mother was granted authority to make 

school-related, extracurricular, and mental health decisions. By agreement of the parties, 

the case was transferred to the Clermont County Court of Common Pleas, Juvenile 

Division, on May 19, 2020, after Father moved to Clermont County. 

{¶ 3} Mother married her husband ("Stepfather") in November 2015, and they had 

a son together in 2017. Chloe enjoys a close and bonded relationship with Stepfather 

and her half-brother. Mother and her family moved to Indian Hill in August 2021. Chloe

has attended Cincinnati Country Day School since kindergarten. 

{¶ 4} Father married his wife ("Stepmother") in November 2020. Stepmother was 

a widow with three children. In the spring of 2020, Father, Stepmother, and her children 

moved to Clermont County, Ohio so that Father could be closer to Chloe. The parties 

now live within 15 minutes of each other. Chloe enjoys a close and bonded relationship 

with Stepmother and a good relationship with her step-siblings. The step-siblings also 

attend Cincinnati Country Day School. 

1. Chloe is a fictitious name for C.L.W. which we will use throughout the opinion for readability purposes.
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{¶ 5} Visitation problems arose in the spring of 2020 around the time Father 

moved to Clermont County. Consequently, the parties filed a flurry of motions. The 

motions pertinent to this appeal are the following: Father's August 10, 2020 motion to 

modify parenting time, or in the alternative, to terminate the SPP; Father's March 22, 2021 

motions for contempt and emergency custody; Father's November 16, 2021 motion for 

attorney fees; and Father's July 19, 2022 contempt motion. The motions were heard by 

the juvenile court over five days, beginning on October 18, 2021, and concluding on April 

6, 2023.2 The evidence at the hearing revealed the following.

{¶ 6} In 2018, when Chloe was five years old, Mother enrolled her in counselling 

with Jennifer Thornton in part due to relationship problems between Chloe and Father. 

This counselling continued for about two years until Thornton retired from practice in May 

2020. In March 2020, after Thornton advised Mother that the relationship problems 

between Chloe and Father were more than could be addressed in counselling, Mother

moved for the appointment of a guardian ad litem ("GAL") for Chloe and for suspension 

of Father's parenting time.

3

 Mother then denied Father parenting time, including 

telephone contact, from March 2020 until August 2020. Mother cited Chloe's behavior 

after visits with Father as the reason she denied Father parenting time for five months. 

For instance, there was an incident in 2019 when Chloe returned from a visit with Father, 

2. As noted in the juvenile court's June 30, 2023 order, the motions were heard on October 18, 2021, and 

continued in progress to October 20, 2021, December 6, 2022, December 7, 2022, and April 26, 2023. 

Notwithstanding a January 2023 entry by the juvenile court authorizing preparation of the transcripts for the 

hearings held on December 6-7, 2022, and an April 2023 notice of filing of transcript by Mother's counsel, 

there is no indication that the transcripts of the December 6-7, 2022 hearings were filed. Therefore, we will 

presume regularity of the proceedings and determine that the juvenile court properly weighed all available 

evidence submitted during the two December 2022 hearings before it issued its June 30, 2023 order ruling 

on Father's motions. In re J.M., 12th Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶ 36.

3. These motions were filed in the Fairfield County Domestic Relations Court where this case originated. 

Due to the COVID-19 shutdown, the Fairfield County Domestic Relations Court never considered these 

motions before the case was transferred to Clermont County. Following the transfer of the case, the 

Clermont County Juvenile Court appointed a GAL for Chloe on July 15, 2020. Mother's March 2020 motion 

to suspend Father's parenting time was never ruled upon.
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retreated to her bedroom, and repeatedly screamed, "Kill me." Mother also reported that 

Chloe was having emotional meltdown episodes about visitation with Father, especially 

when the visits were to be for an extended time, such as the 2020 spring break and the 

five-week extended summer visitation. 

{¶ 7} Having been denied his 2020 spring break parenting time, on March 1, 

2021, Father moved to exercise parenting time with Chloe during her 2021 spring break. 

Following a hearing and an in-camera interview with Chloe, the juvenile court granted 

Father's motion by order of March 9, 2021. Pursuant to the juvenile court's order, Father 

went to pick up Chloe at the exchange location. The attempt to transfer Chloe from 

Mother to Father failed as Chloe refused to get out of Mother's vehicle and go with Father

while repeatedly stating, "I don't want to go" or "I'm not going." Father ultimately left 

without Chloe. Mother and Stepfather had planned to go to Florida to visit Stepfather's 

relatives while Chloe spent spring break with Father. After Chloe refused to go with 

Father for spring break visitation, Chloe accompanied Mother to Florida. Mother neither 

obtained Father's consent for this trip nor notified him of it. However, upon Mother's return 

from Florida, she arranged for Chloe to visit with Father for five days of the remaining 

spring break. 

{¶ 8} On March 22, 2021, Father filed a contempt motion against Mother for 

violation of the juvenile court's March 9, 2021 order granting his motion for spring break 

parenting time. On April 5, 2021, the juvenile court found Mother in contempt for denying 

Father his 2021 spring break parenting time. The juvenile court sentenced Mother to 30 

days in jail and provided that she could purge the contempt finding and jail by providing 

Father with 14 days of uninterrupted parenting time on dates of his choosing. Mother 

obtained a stay of the order and appealed. We upheld the juvenile court's contempt 

finding. In re C.L.W., 12th Dist. Clermont No. CA2021-05-013, 2022-Ohio-1273. 
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Following our opinion, Father contacted Mother three times to schedule his make-up 

parenting time. Mother did not respond to Father's first two attempts and ultimately 

rejected his request for make-up parenting time. Pursuant to this finding of contempt, 

Father filed a motion for attorney fees on November 16, 2021. Mother has yet to purge 

herself of this contempt.

{¶ 9} As mentioned above, Chloe engaged in counselling with Thornton from the 

spring of 2018 until May 2020. Thornton believed Chloe was "torn" between her parents'

homes. Chloe expressed to Thornton that she did not want to spend as much time at 

Father's home as Father preferred. Chloe told Thornton that whenever she told Father 

anything positive about Mother or Stepfather, Father would get upset or sad, would tell 

Chloe that she did not love him, and that Mother was trying to take her away. Thornton 

reported that Chloe felt guilt and responsibility for Father's emotions. On one occasion, 

Thornton shared with Father that Chloe would like telephone contact with Mother during 

her visitations with Father. During Thornton's next counselling session, Chloe was angry 

with her because Father had told her that Thornton shared with him everything she and 

Thornton talked about during counselling. Thornton also reported that Chloe was 

resentful of Mother's efforts to facilitate visitation and communication between Chloe and 

Father. According to Thornton, Chloe told her, "mommy makes me go to the visits. 

Mommy makes me get on the phone." Chloe also told Thornton that Father had talked 

to her about the pending custody/parenting time proceedings.

{¶ 10} In July 2020, when Chloe was seven years old, she began counselling with 

Erin Prindiville. Mother listed Chloe's surname on the intake forms as including 

Stepfather's name. The record also indicates that Mother originally enrolled Chloe in 

kindergarten under Stepfather's surname; however, Chloe's surname was changed to her 

legal name after an internal audit conducted at the school. Prindiville testified that Chloe
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enjoys her time with both parents; is protective of both parents and does not want to hurt 

their feelings; is satisfied with the current parenting time arrangement; would like the 

option of staying overnight at Father's home on Wednesday evening visitations; and 

would like to spend half of her two-week spring break with each parent. Despite Mother 

having expressed she had denied Father's parenting time because of concerns with 

Chloe's behaviors after visiting Father, Prindiville had no concerns about Chloe's 

interaction with Father and observed no anxiety in Chloe.

{¶ 11} In response to Mother's November 2020 motion for a custody evaluation, 

the juvenile court appointed Dr. Edward Connor to conduct the evaluation. Dr. Connor 

filed a lengthy report in April 2021 and testified in October 2021. Dr. Connor testified that 

Chloe was a bright child, that she does not want to hurt either parent, and that she "has 

a sense" that Mother does not want her to have a close bond with Father. Dr. Connor 

expressed concern that Mother was giving Chloe authority to make parenting time 

decisions, stating that giving a young child that kind of power is "unhealthy" and

overwhelming and can lead to Chloe feeling more pressure and anxiety. Dr. Connor also 

expressed concern that Mother gave Chloe a safe word when she was at Father's house 

as that implied that Father was dangerous and a threat to Chloe. Dr. Connor noted 

Mother's repeated attempts to discredit Father in Chloe's view and expressed concern 

that Mother's refusal to permit Father to exercise parenting time with Chloe for five months 

in 2020 coincided with Father's move to Clermont County to live closer to Chloe. Dr. 

Connor believed Father to be the parent likely to be cooperative on parenting issues. Dr. 

Connor recommended that Father be awarded legal custody of Chloe with each parent 

having equal parenting time, and that Mother's parenting time be reduced to supervised 

parenting time if she continued to disparage Father. Dr. Connor strongly recommended 

that Mother engage in individual therapy, with the therapist having access to his report. 
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Mother accepted Dr. Connor's recommendation and began counselling with Angela 

Barber-Joyner in October 2021.

{¶ 12} Mother acknowledged she failed to advise Father of all of Chloe's medical 

appointments, claiming that she forgets to do so at times. The record also indicates that 

Mother failed to advise Father of all of Chloe's school and summer activities. Mother gave 

Chloe a cellphone in 2019 but did not believe that Father should be given the password 

or permitted to call Chloe on the phone as Mother and Stepfather had purchased the 

phone and paid for the service. Mother recorded Father's telephone calls with Chloe from 

February 2018 to June 2021. Mother claimed she did so because Chloe would be upset 

after the conversations. Chloe was unaware Mother was recording her telephone 

conversations with Father. Mother ceased recording the phone calls after Father learned 

of the practice and the GAL objected to it. 

{¶ 13} In October 2021, the parties enrolled in Our Family Wizard ("OFW"). 

Thereafter, Mother posted all of Chloe's medical appointments, school events, activities, 

and travel plans on OFW. School events are also available on Chloe's school's website. 

During Chloe's 2022 spring break, Mother stayed home so that Chloe would not have an 

excuse to refuse parenting time with Father. 

{¶ 14} On Wednesday, July 6, 2022, when Father arrived at Mother's home to 

exercise his scheduled parenting time, Mother refused to answer the door. Mother 

claimed that she refused Father's parenting time because it was her week of 

"uninterrupted time." However, she had failed to provide 28 days' notice of her intent to 

exercise "uninterrupted time" as required under the SPP. 

{¶ 15} Father was again denied parenting time on July 17, 2022, when Mother 

failed to appear with Chloe at the exchange location and then failed to respond to Father's 

OFW messages and telephone calls. Father was finally able to retrieve Chloe on July 18, 
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2022. Mother's July 2022 withholdings of Father's parenting time resulted in Father filing 

a second contempt motion against Mother on July 19, 2022. 

{¶ 16} Another incident occurred over Labor Day weekend 2022, a weekend that 

was designated as Father's parenting time. Stepfather's cousin was getting married that 

weekend and Chloe, who was close with the cousin, wanted to attend the wedding. 

Mother emailed Father on August 1, 2022, and requested that he trade a weekend with 

her so that Chloe could attend the wedding; Mother advised Father that the RSVP 

deadline was August 9, 2022. In his reply, Father advised Mother, "You are going to have 

to be willing to sacrifice if you expect us to." Although Father was willing to forego his 

parenting time to permit Chloe to attend the wedding, he would do so only if the make-up 

parenting time was agreed upon at the outset. The parties could not agree on make-up 

parenting time before the wedding RSVP date passed, and Chloe did not attend the 

wedding. 

{¶ 17} In the fall of 2022, Mother arranged for the parties to have lunch together 

after Chloe's orthodontist appointment. Around the same time, Chloe was given four 

tickets to a performance at the Children's Theater. Although Mother planned to take 

Chloe and two of her friends to the performance, she gave the tickets to Father upon 

realizing the performance fell during Father's weekend parenting time. Father, 

Stepmother, Chloe, and one of Chloe's friends went to the performance. Mother also 

invited Father to coach Chloe's flag football team with her.

{¶ 18} The GAL's testimony indicates that as of April 26, 2023, Mother was no 

longer withholding or interfering with Father's parenting time under the SPP; Chloe had 

modified her wishes, and wanted to spend more time with Mother than with Father 

because Father "hurts her emotionally"; and Mother continues to engage in counselling 

but Father did not because it was cost prohibitive. However, the GAL also expressed 
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serious concerns about the impact of Mother's conduct on Chloe. The GAL 

recommended that Father be designated residential parent and that Mother's parenting 

time be supervised if Mother did not modify her behavior. 

{¶ 19} On June 30, 2023, the juvenile court ruled upon the various pending 

motions. Regarding the SPP, the juvenile court found that there had been a substantial 

change in the circumstances of Mother and proceeded to consider and discuss the R.C. 

3109.04(F) best interest factors.4 The juvenile court observed that "Mother and Father 

each possess the emotional, intellectual, and financial resources to provide [Chloe] a 

childhood replete with stability, security, and happiness. Both parents have spouses that 

add to this positive environment in their homes." The juvenile court also observed that 

Mother had made positive strides during the extended duration of the case, noting that 

Mother had "heeded" Dr. Connor's testimony and had been actively engaged in therapy 

since October 2021. The juvenile court was also impressed by Mother's invitation to

Father to coach Chloe's flag football team with her. 

{¶ 20} Upon considering the applicable R.C. 3109.04(F) factors, the juvenile court 

found it was in Chloe's best interest to maintain the SPP. The juvenile court granted 

Father's motion to modify his parenting time and the SPP. However, the modifications 

were not substantial. The SPP was maintained but was modified to provide the parties

with parenting time with Chloe on alternating weeks during the summer; further, the 

parent who does not have parenting time with Chloe during a week has parenting time on 

Wednesday evening from 4:00 p.m. to 7:00 p.m. The juvenile court's order that the parties

exercise summer parenting time on an alternating week-to-week basis resulted in a 

reduction of the five weeks of extended summer parenting time to which Father was 

4. As we note below, a change of circumstances is not a predicate finding for the modification/termination 

of the SPP in this case.
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entitled under the original SPP. 

{¶ 21} Regarding its April 5, 2021 order finding Mother in contempt for denying 

Father parenting time during the 2021 spring break, the juvenile court noted the 

"unrefuted evidence that Father has yet to be provided with make-up parenting time 

pursuant to the purge language in the Order." Nonetheless, the juvenile court declined 

to impose a sentence, holding there would be "no productive purpose in imposing a 

sentence" because "[t]he 'power plays' and obstructionist conduct have been replaced 

with cooperation and flexibility." However, the juvenile court noted that this contempt 

finding, "as a first offense, was not purged; as such, any subsequent contempt actions 

could subject [Mother] to enhanced penalties as a second offender." 

{¶ 22} The juvenile court denied Father's November 16, 2021 motion for attorney 

fees, finding there was no evidence produced during the hearing as to the 

reasonableness of the fees. 

{¶ 23} The juvenile court granted Father's July 19, 2022 contempt motion, finding 

Mother in contempt for denying Father parenting time on July 6, 2022. The juvenile court 

found that Mother "demonstrated a full understanding of the terms of the [SPP]"

throughout the proceedings and "willfully, and without just cause, disregarded the Plan." 

The juvenile court provided that Mother may purge this contempt by providing Father with

an additional seven days of uninterrupted parenting time during Chloe's summer break. 

However, the juvenile court did not impose a sentence, noting "the tremendous strides 

that the parties have made over the course of the past year, resulting in a spirit of 

communication and cooperation for the best interest of the minor child." Nonetheless, 

the juvenile court noted that "this determination does result in the Mother being found in 

contempt as a second offender. As such, in the event of a subsequent contempt finding 

being made against her, she will be eligible for the more severe sanctions associated with 
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a third offense contempt."

{¶ 24} Father now appeals, raising four assignments of error.

{¶ 25} Assignment of Error No. 1:

{¶ 26} THE TRIAL COURT ABUSED ITS DISCRETION BY NOT FINDING THAT 

IT WAS IN THE CHILD'S BEST INTERESTS TO TERMINATE THE PARTIES' SHARED 

PARENTING PLAN AND DESIGNATE APPELLANT THE SOLE RESIDENTIAL AND 

LEGAL CUSTODIAN OF THE CHILD.

{¶ 27} Father argues the juvenile court abused its discretion by failing to terminate 

the SPP and designate him as the residential parent based upon the following evidence: 

Mother denied Father parenting time for five months in 2020, based upon Mother's claim 

that this is "what [Chloe] wants" despite evidence from Dr. Connor, the GAL, Father, 

Stepmother, and Chloe's therapists to the contrary; Mother's repeated denials of Father's 

parenting time despite Father's attempts to communicate with Mother concerning the 

issue and resulting in Mother being found in contempt twice; Mother's efforts to alienate 

Chloe from Father by recording Father's phone calls with Chloe, "reminding" Chloe on 

occasions that "Daddy made her sad," and disparaging Father as a sperm donor or as 

less than Stepfather; and scheduling medical and school appointments for and enrolling 

Chloe in extracurriculars activities without notifying Father.

{¶ 28} A juvenile court has broad discretion to modify a shared parenting 

agreement or terminate it altogether. In re A.C.F., 12th Dist. Warren No. CA2023-03-022, 

2023-Ohio-3296, ¶ 12. A juvenile court's determination that shared parenting continues 

to be or is no longer in the best interest of the parties' child will not be reversed absent an 

abuse of discretion. Id. 

{¶ 29} Because Father moved to terminate the SPP, his motion was governed by 

R.C. 3109.04(E)(2)(c), and a change-in-circumstances finding was not required. Bruns 
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v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, ¶ 20; In re D.M., 196 Ohio App.3d 50, 

2011-Ohio-3918, ¶ 26 (12th Dist.). Under R.C. 3109.04(E)(2)(c), a juvenile court may 

terminate a shared parenting plan if it determines that shared parenting is not in the best 

interest of the child. The juvenile court makes this determination by considering the 

factors set forth in R.C. 3109.04(F)(1) and (F)(2). In re A.C.F. at ¶ 14. As relevant here, 

these factors include the wishes of the child's parents regarding the child's care; 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; the child's adjustment to the 

child's home, school, and community; the parent more likely to honor and facilitate courtapproved parenting time rights or visitation and companionship rights; and 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. R.C. 3109.04(F)(1)(a),(c), (d), (f), and (i). These factors also 

include the ability of the parents to cooperate and make decisions jointly, with respect to 

the child; the ability of each parent to encourage the sharing of love, affection, and contact 

between the child and the other parent; and the recommendation of the child's guardian 

ad litem. R.C. 3109.04(F)(2)(a), (b), and (e).

{¶ 30} Upon a thorough review of the record, we find no abuse of discretion in the 

juvenile court's decision to continue the parties' SPP. In so holding, we stress that 

decisions concerning allocation of parental rights and responsibilities are guided by a 

child's best interest and should not be used as a cudgel to punish a misbehaving parent. 

The evidence supports the juvenile court's decision that it is in Chloe's best interest to 

maintain shared parenting.

{¶ 31} In addressing the best interest factors under R.C. 3109.04(F), the juvenile 

court found that Chloe (1) has a close, secure, and bonded relationship with both Father 
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and Mother, (2) enjoys a positive and healthy relationship with both Stepmother and 

Stepfather, (3) enjoys a normal sibling-like relationship with her step-siblings and a 

positive bond with her half-brother, (4) is fully integrated in both parents' homes, has been 

attending Cincinnati Day Country Day since kindergarten, a school attended by her stepsiblings, and is engaged in several extracurricular activities. The record supports the 

juvenile court's findings.

{¶ 32} The juvenile court also noted Mother's disregard for the parenting time 

schedule set forth in the SPP, Mother's decision to register Chloe in kindergarten under 

Stepfather's surname, and the serious misgivings expressed by Dr. Connor and the GAL 

about the impact of Mother's conduct on Chloe, prompting both Dr. Connor and the GAL 

to recommend supervised parenting time for Mother, with Father as the residential parent, 

if Mother did not modify her behavior. 

{¶ 33} In addressing Mother's conduct, the juvenile court placed great weight on 

Mother's efforts to do better. The court noted that Mother's motivation in enrolling Chloe

under Stepfather's surname was because there were no other children in her class whose 

parents were divorced, and thus, Chloe felt different. The court also found that the lengthy 

delay of proceedings caused by the COVID-19 pandemic benefitted Mother in that she 

heeded Dr. Connor's observations and evaluation, actively engaged in individual therapy

in October 2021, and subsequently changed her behavior and actions toward Father. 

The juvenile court specifically noted Mother's "compelling testimony" that she is "trying to 

create positivity around [Father] and his family [and] promote positive feelings about 

[Father] and his family," and that she shares with Chloe memories and stories of 

experiences Chloe and Father shared. The juvenile court also noted how, since July 

2022, "Mother has evolved from placing obstacles in the way of Father's parenting time

to that of cooperating and facilitating parenting time." The court cited Mother arranging 
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an impromptu lunch with Father and Chloe after Chloe's orthodontist appointment, Mother

giving Father tickets for the Children's Theater performance, Mother inviting Father to 

coach Chloe's flag football team together, and Mother's decision not to travel for the 2022 

spring break as examples of Mother's compelling change in behavior.

{¶ 34} The hearing on this matter and Father's various motions lasted five days 

between October 2021 and April 2023, with numerous witnesses, and, excluding the two 

December 2022 hearings for which transcripts were not filed, almost 700 pages of 

testimony. In particular, the juvenile court heard testimony from both Father and Mother 

and was consequently able to make its own credibility determinations in deciding what 

was in Chloe's best interest. Appellate courts are ill-suited to make decisions regarding 

the better overall environment for a child based on a cold record, whereas juvenile courts, 

where the evidence is presented and witnesses are evaluated, are more aptly suited to 

make them. In re A.B., 12th Dist. Butler No. CA2009-10-257, 2010-Ohio-2823, ¶ 35. The 

juvenile court's decision to maintain shared parenting is supported by the record, and we 

decline to second-guess the juvenile court in this matter. Thus, the juvenile court's refusal 

to terminate the SPP did not constitute an abuse of discretion. 

{¶ 35} Given Mother's two contempt findings and the concerns expressed by Dr. 

Connor, Chloe's therapists, and the GAL that Chloe feels torn between her parents' 

homes, it is worth stressing that "children have certain rights, including 'the right to love 

each parent, without feeling guilt, pressure, or rejection; the right not to choose sides; the 

right to have a positive and constructive on-going relationship with each parent; and most 

important * * * the right to not participate in the painful games parents play to hurt each 

other or to be put in the middle of their battles.'" In re D.M., 2011-Ohio-3918 at ¶ 30,

quoting In re Custody of Harris, 168 Ohio App.3d 1, 2006-Ohio-3649, ¶ 11. "In today's 

society that fully admits the need for parenting by both parents, each parent should have 
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full involvement in the child's life[.]" Davis v. Flickinger, 77 Ohio St.3d 415, 419, 1997-

Ohio-260.

{¶ 36} Father's first assignment of error is overruled.

{¶ 37} Assignment of Error No. 2:

{¶ 38} THE TRIAL COURT ABUSED ITS DISCRETION BY NOT MODIFYING 

THE PARTIES' SHARED PARENTING PLAN TO AWARD FATHER MORE PARENTING 

TIME WITH THE CHILD IN THE CHILD'S BEST INTERESTS.

{¶ 39} Father argues the juvenile court abused its discretion by failing to modify 

the SPP to provide him with additional parenting time and greater parenting rights. Father 

sought to terminate the SPP and be designated as Chloe's residential parent; Mother 

sought to continue shared parenting and SPP, but was amenable to some modifications 

to the parenting time schedule such as alternating weekly rotation during Chloe's summer 

break. Mother further wanted all decision-making authority.

{¶ 40} R.C. 3109.04(E)(2)(b) allows for the modification of the terms of a shared

parenting plan and authorizes the juvenile court—on its own initiative or at the request of 

one or both parents—to modify the terms of the shared parenting plan when modification 

is found to be in the best interest of the child. Bruns, 2020-Ohio-4787 at ¶ 11. 

"Modifications under this division may be made at any time. The court shall not make any 

modification to the plan under this division, unless the modification is in the best interest 

of the children." R.C. 3109.04(E)(2)(b). The juvenile court makes this determination by 

considering the factors set forth in R.C. 3109.04(F)(1). In re A.C.F., 2023-Ohio-3296 at 

¶ 19. No one factor is dispositive, and the court has discretion to weigh the factors as it 

sees fit. Leach v. Leach, 12th Dist. Butler No. CA2019-06-092, 2020-Ohio-1181, ¶ 9. An 

appellate court reviews a juvenile court's modification of a parties' shared parenting plan 

regarding parenting time for an abuse of discretion. Mack v. Mack, 12th Dist. Butler No. 
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CA2018-09-179, 2019-Ohio-2379, ¶ 39. 

{¶ 41} Under the original SPP, Father had parenting time with Chloe on 

Wednesdays after school until 8:00 p.m., alternating weekends from Friday to Sunday, 

spring break on even-number years, and five weeks of extended summer parenting time. 

The plan provided that the parties jointly make decisions in Chloe's best interest and, in 

the event of an impasse, Father was granted authority to make non-mental health medical 

decisions and Mother was granted authority to make school-related, extracurricular, and 

mental health decisions. The juvenile court's June 30, 2023 order (1) modified the 

summer parenting time schedule to provide that the parties exercise parenting time on 

alternating weeks and that the parent that does not have parenting time during a week is 

entitled to parenting time on Wednesday from 4:00 p.m. to 7:00 p.m., (2) granted Mother 

every Fourth of July and Father every Labor Day, (3) modified the exchange location, and 

(4) added a "mediation clause" requiring the parties to attend at least two mediation 

sessions in the event of future conflict between the parties relating to Chloe and prior to 

filing any pleadings with the court. The SPP and all of its other particulars, including 

parenting time during the school year, remained unchanged.

{¶ 42} Upon a thorough review of the record, we find no abuse of discretion in the 

juvenile court's modification of the SPP. The juvenile court considered the applicable 

best interest factors set forth in R.C. 3109.04(F)(1), noted Chloe's close and bonded 

relationship with both Father and Mother and their respective families, and found that 

Chloe is adjusted and integrated in both homes and at school. Regarding the parent 

more likely to honor and facilitate court-approved parenting time rights, the juvenile court

specifically noted Mother's disregard for the SPP's parenting time schedule and her prior 

interference with Father's parenting time but found that Mother's recent change of 

behavior mitigated such concern. The record shows that Chloe is satisfied with the 
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current parenting time arrangement and is doing well. If anything, the record indicates 

that Chloe would prefer to spend somewhat more time with Mother than Father. The 

juvenile court was in the best position to determine the credibility of the witnesses, 

including Mother. Leach, 2020-Ohio-1181 at ¶ 10. While a parent's wishes about the 

care of his or her child must be considered by the juvenile court, It is the child's best 

interest that controls, not the parents'. Mack, 2019-Ohio-2379 at ¶ 44, 45.

{¶ 43} We note that Mother and Father undoubtedly love Chloe and want what is 

best for her. Chloe also loves her parents. However, Chloe struggles with the 

interpersonal drama between her parents arising from their co-parenting arrangement. 

Unfortunately, both parents have exacerbated Chloe's struggles. Father has engaged in 

tactics to manipulate Chloe by guilting her about her relationship with Mother and 

Stepfather. Mother has engaged in conduct denigrating Father. Furthermore, rather than 

acting in her role as the parent in the situation, Mother has also given Chloe too much 

responsibility for when she will visit with Father than is appropriate for a child of Chloe's 

age. Mother bears more fault than Father for the resulting visitation problems as 

demonstrated by the two contempt findings against her. However, in crafting a parenting 

time arrangement, the goal is to promote Chloe's best interest, not to punish a parent for 

misbehavior of the sort described above. The evidence supports the juvenile court's 

finding that the SPP, as modified, is in Chloe's best interest.

{¶ 44} Father's second assignment of error is overruled.

{¶ 45} Assignment of Error No. 3:

{¶ 46} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO 

SANCTION APPELLEE FOR HER VIOLATIONS OF THE PARTIES' SHARED 

PARENTING PLAN AFTER FINDING HER IN CONTEMPT OF THE PLAN.

{¶ 47} Father argues the juvenile court abused its discretion by failing to sanction 
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Mother upon finding her in contempt twice.

{¶ 48} On April 5, 2021, Mother was found in contempt for denying Father his 2021 

spring break parenting time with Chloe in violation of the juvenile court's March 9, 2021 

order. We upheld the juvenile court's contempt finding and the purge condition that 

Mother provide Father with 14 days of uninterrupted parenting time on dates of his 

choosing. In re C.L.W., 2022-Ohio-1273. In its June 30, 2023 order, the juvenile court 

declined to impose a sentence, holding there would be "no productive purpose in 

imposing a sentence" because "[t]he 'power plays' and obstructionist conduct have been 

replaced with cooperation and flexibility." The juvenile court went on to observe that

Mother's "finding of contempt, as a first offense, was not purged; as such, any subsequent 

contempt actions could subject her to enhanced penalties as a second offender."

{¶ 49} On June 30, 2023, Mother was found in contempt a second time for denying 

Father parenting time on July 6, 2022. The juvenile court provided that Mother may purge 

this contempt by providing Father with an additional seven days of uninterrupted 

parenting time during Chloe's summer break. The juvenile court did not impose a 

sentence, noting "the tremendous strides that the parties have made over the course of 

the past year, resulting in a spirit of communication and cooperation for the best interest 

of the minor child." However, the juvenile court noted that "this determination does result 

in the Mother being found in contempt as a second offender. As such, in the event of a 

subsequent contempt finding being made against her, she will be eligible for the more 

severe sanctions associated with a third offense contempt." 

{¶ 50} This case 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. Mackowiak v. Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 

2011-Ohio-3013, ¶ 37. Although punishment is inherent in contempt, courts will 
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categorize the penalty as either civil or criminal based on the character and purpose of 

the punishment. In re J.M., 12th Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶ 

47. While criminal contempt is characterized by an unconditional prison sentence, civil 

contempt is marked by remedial or coercive punishment, doled out for the "benefit of the 

complainant." Id. "Another hallmark of civil contempt, incarceration as a punishment is 

conditional so that 'the contemnor is said to carry the keys of his prison in his own pocket.'" 

Id. Because a civil contempt sanction is coercive in nature, the contemnor must have the 

opportunity to purge his contempt; once compliance has been achieved, any sanctions 

are discontinued. Id.

{¶ 51} Once a party is found in contempt, a trial court "may impose" any of the 

penalties set forth in R.C. 2705.05(A)(1) thru (3), to wit:

(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;

(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;

(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.

{¶ 52} An appellate court reviews a finding of contempt, including a trial court's 

imposition of penalties, under an abuse of discretion standard. Mackowiak at ¶ 45. An 

abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or 

unconscionable. Blakemore, v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The vast 

majority of cases in which an abuse of discretion is asserted involve claims that the 

decision is unreasonable, that is, one that is not supported by a sound reasoning process. 

In re A.C.F., 2023-Ohio-3296 at ¶ 12. Abuse of discretion is a highly deferential standard 

of review that rests on the premise that the trial judge is in the best position to determine 
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the credibility of witnesses because he or she is able to observe their demeanor, gestures, 

and attitude. Mack, 2019-Ohio-2379 at ¶ 14. 

{¶ 53} Though the juvenile court found Mother in contempt twice for denying 

Father parenting time, the court declined to impose penalties, noting that "the lengthy 

delays in the proceedings have given Mother ample opportunity to modify her conduct, 

and she has availed herself of the opportunity," subsequently replacing her "'power plays' 

and obstructionist conduct" with cooperation and flexibility. The court further noted "the 

tremendous strides [that] the parties have made over the course of the past year, resulting 

in a spirit of communication and cooperation." R.C. 2705.05(A) does not require a trial 

court to impose a penalty upon finding a party in contempt. The juvenile court was in the 

best position to observe the parties' demeanor and attitude during the several hearings 

and weigh their credibility. In determining whether the juvenile court abused its discretion 

by imposing no penalties for Mother's contempt findings, it is not necessary that we agree 

with how the juvenile court construed and weighed the evidence. On the contrary, "if the 

record contains competent and credible evidence which supports the trial court's 

decision," then there is no abuse of discretion. In re W.P., 12th Dist. Fayette No. CA2023-

04-008, 2023-Ohio-4083, ¶ 15. The juvenile court referenced such evidence in its 

decisions not to impose contempt penalties. We decline to substitute our judgment for 

that of the juvenile court in this regard. And while we acknowledge our reservations with 

the juvenile court's decision not to sanction Mother for contempt, particularly for her denial 

of Father's 2021 spring break parenting time which she has yet to purge, the juvenile 

court was in a much better position than this court to gauge what impact a contempt 

sanction might have on implementing the modified SPP going forward. We decline to 

substitute our judgment for that of the juvenile court in this regard as well. That being 

said, the two contempt findings against Mother remain, subjecting her to severe sanctions 
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should she be found in contempt for a third or subsequent time.

{¶ 54} Father's third assignment of error is overruled.

{¶ 55} Assignment of Error No. 4:

{¶ 56} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD 

APPELLANT ATTORNEY FEES AFTER FINDING APPELLEE IN CONTEMPT OF THE 

PARTIES' SHARED PARENTING PLAN.

{¶ 57} On November 16, 2021, Father filed a motion for attorney fees relating to 

Mother having been found in contempt for withholding Father's 2021 spring break 

parenting time. Accompanying Father's motion was an affidavit executed by Father's 

counsel stating the number of work hours performed and counsel's hourly rate. The 

affidavit further stated that the attorney "fees charged are reasonable and necessary to 

represent [Father] in this action," and that the attorney regularly practices before the 

Clermont County Juvenile and Domestic Relations Courts. The juvenile court denied the 

motion, finding "there was no testimony at trial in support of this Motion" and "there was 

not the requisite testimony by a third party attorney as to the reasonableness of the fees, 

based upon local market hourly rates for the type of legal services rendered." Father's 

July 19, 2022 contempt motion also sought an award of attorney fees. Nothing 

accompanied that motion relating to his request for attorney fees. The juvenile court

granted Father's contempt motion but did not address his request for attorney fees, 

thereby implicitly denying it. Kostelnick v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 13 

(A motion not expressly decided by a trial court when the case is concluded is ordinarily

presumed to have been overruled). On appeal, Father argues the juvenile court abused 

its discretion by failing to award him reasonable attorney fees upon finding Mother in 

contempt twice. Father asserts the award of attorney fees is mandatory under R.C. 

3109.051(K). 
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{¶ 58} R.C. 3109.051(K) governs the issuance of attorney fees when a party is 

found in contempt of court for failing to comply with a parenting time order. The statute 

provides that the trial court "shall" award "reasonable" attorney fees and court costs 

"arising out of the contempt proceeding against the person" found in contempt. The 

award of attorney fees is therefore mandatory upon a finding of contempt under R.C. 

3109.051(K). Hart v. Spenceley, 12th Dist. Butler No. CA2011-08-165, 2013-Ohio-653, 

¶ 21. The award of attorney fees must also be "reasonable." Id. at ¶ 22; R.C. 

3109.051(K).

{¶ 59} Reasonableness for purposes of calculating attorney fees is a question of 

fact and the trial court must have evidence before it probative of that issue in order to 

make the finding. Rapp v. Pride, 12th Dist. Butler No. CA2009-12-311, 2010-Ohio-3138, 

¶ 32. Reasonable attorney fees must be based upon actual services performed by the 

attorney and upon the value of those services. Id. "A raw calculation of hours spent 

multiplied by the attorney's hourly rate is not sufficient to determine the reasonableness 

of the fees." M.A.B. v. B.L.R., 8th Dist. Cuyahoga No. 112600, 2024-Ohio-573, ¶ 36, 

citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991). We review the juvenile 

court's valuation of attorney fees for an abuse of discretion. Rapp at ¶ 32.

{¶ 60} Loc.R. 20(A) of the Clermont County Common Pleas Court, Juvenile 

Division, requires motions for attorney fees to be in writing. Loc.R. 20(B) governs 

reasonable attorney fees and provides

Absent formal evidence, as set forth in Section (C) herein, 

$500.00 shall be considered a reasonable attorney fee in 

contempt of court proceedings, unless otherwise determined 

by the Court. In determining the necessity for and the 

reasonableness of attorney fees, the Court may rely on its 

own knowledge and observations of the time and effort 

expended, tactics used, results obtained, discovery 

cooperation shown, settlement efforts made and compliance 

with Court orders demonstrated. The Court may also consider 
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the amount of attorney fees the opposing party has incurred 

in the same matter.

{¶ 61} In support of a motion/request for attorney fees, Loc.R. 20(C)(1) requires 

the attorney to present (a) "an itemized statement describing the services rendered, the 

time expended for such services, the requested hourly rate and the necessary expenses 

and costs for litigation," (b) testimony regarding complicating factors necessitating extra 

time spent on the case, (c) testimony regarding the attorney's years in practice and 

experience in juvenile court cases, and (d) evidence of the defending party's ability to pay 

and of the moving party's need for an award of attorney fees. Loc.R. 20(C)(2) provides 

that "[f]ailure to comply with the provisions of this rule shall result in the denial of a request 

for attorney fees in excess of $500.00 in contempt of court proceedings[.]" 

{¶ 62} We find that the juvenile court did not err in denying Father's request for 

attorney fees contained within his July 19, 2022 contempt motion. "Although the language 

in R.C. 3109.051 is mandatory, attorney fees must also be reasonable and based on the 

actual services performed by the attorney and the value of those services. It is axiomatic 

that a trial court cannot make a finding when there is no evidence in the record." Hart, 

2013-Ohio-653 at ¶ 25. Not only did Father fail to present documents in support of his 

request for attorney fees, he also did not specify the amount of attorney fees he incurred 

related to the contempt motion. Therefore, it was impossible for the court to determine 

an award of attorney fees. Id. 

{¶ 63} We find, however, that the juvenile court erred by failing to award $500 in 

attorney fees regarding Father's November 16, 2021 motion for attorney fees. Loc.R. 

20(B) provides that once the juvenile court finds a party in contempt, attorney fees of $500 

are considered reasonable and must be awarded, "unless otherwise determined by the 

Court." For reasonable attorney fees above $500 to be awarded pursuant to a contempt 
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finding, the moving party must present independent evidence to substantiate the award 

as reasonable. Vandeventer v. Vandeventer, 132 Ohio App.3d 762, 770 (12th Dist.1999). 

Father's motion complied with Loc.R. 20(C)(1)(a) in that counsel's affidavit presented her 

hourly rate and the number of hours spent and included an itemized statement. However, 

the motion did not comply with Loc.R. 20(C)(1)(b)-(d) as there was no testimony or 

documentation presented regarding factors complicating the case, counsel's experience

in juvenile court cases, Mother's ability to pay the attorney fees, and Father's need for 

attorney fees. The juvenile court's order denying Father's motion for attorney fees was 

not based upon a determination that $500 was an unreasonable attorney fee in the case 

but upon Father's failure to address the requirements for an award of attorney fees 

exceeding $500. The juvenile court, therefore, did not err in denying Father's November 

16, 2021 motion for attorney fees sought in excess of $500 but erred in failing to award 

Father $500 in attorney fees. Id.; Loc.R. 20(B) and (C). 

{¶ 64} Father's fourth assignment of error is sustained. Pursuant to App.R 12(B), 

we hereby enter an award of $500 in attorney fees to Father.

{¶ 65} Judgment affirmed as modified.

S. POWELL, P.J., and PIPER, J., concur.