[Cite as In re Contempt of J.A.P.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE CONTEMPT OF J.A.P. : No. 110591 :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 3, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PR-11705902

Appearances:

J.A.P., pro se appellant.

KATHLEEN ANN KEOUGH, J.:

Appellant, J.A.P. (hereinafter “Mother”), appeals the trial court’s

decision finding her in contempt of court by failing to abide by the Shared Parenting

Agreement (“Agreement”). For the reasons that follow, this court reverses the

juvenile court’s judgment and remands to vacate the finding of contempt.

On July 26, 2011, Mother and appellee, A.B. (hereinafter “Father”),

entered into the Agreement regarding their three minor children. In August 2015,

the parties modified the Agreement to include a provision regarding counseling and to clarify other provisions in the original Agreement involving extracurricular

activities, parenting time, schooling, taxes, and communication (“Modification”).

Relevant to this appeal, the Agreement provided that during even-

numbered years, Father would have the children for the Easter holiday. The

Agreement specifically provided that

[s]hould the school-age children’s spring vacation occur in the week after Easter, the Easter visitation shall extend to Wednesday at 7:00 p.m. If spring vacation occurs during another time, the parent having Easter shall have the first three weekdays of the spring vacation.

Regarding “vacation,” the Agreement provided that vacations “are to be

arranged by each parent with not less than thirty (30) days advance notice to the

other parent.” Additionally, the Agreement requires each parent to give the other

parent “destination times or arrival and departure, and method of travel if the

vacation will be outside the parent’s community.” Finally, the Agreement

authorized the parties to file a motion with the court if unresolved scheduling

conflicts occurred regarding vacation.

The record reveals that in 2019, the parties orally agreed to modify the

Agreement by allowing Father to exercise visitation during the entire spring break

period. The parties dispute the reason why this change occurred.

On February 11, 2020, Mother notified Father via text message that she

was taking their children on spring break vacation from March 17-29, 2020. Father

responded that their daughter had a basketball game during that time, and

reminded Mother that because Easter was his holiday in 2020, the agreement provided that he would have the first three weekdays of spring break. According to

Father, the planned vacation would have interfered with his parenting time

pursuant to the Agreement. In her response message, Mother told Father that he

knew about the vacation because their daughter told him and Father had the

children during the entire 2019 spring break vacation. The parties exchanged

additional text messages that are not relevant to the appeal, but clearly display the

tension and bitterness between them.

On February 27, 2020, Father filed a motion to show cause why Mother

should not be held in contempt for violating the Agreement. The motion alleged

that Mother was “denying [him] parenting time for spring break; failure to provide

vacation destination times and method of travel; uses children to communicate;

failure to attend counseling; failure to pay for children’s extracurricular activities.”

In April 2020, the juvenile court scheduled a pretrial hearing, which

was canceled due to the COVID-19 pandemic. A telephonic pretrial occurred in July,

and a magistrate conducted an in-person evidentiary hearing on Father’s motion in

September 2020.

At the hearing, Mother and Father both provided sworn narratives and

testimony regarding the circumstances surrounding Father’s motion. Father stated

that Mother violated the Agreement because she planned a vacation over the

children’s spring break, which according to the Agreement would deprive him of his

scheduled parenting time. Additionally, Father advised the court that Mother failed

to provide him details about the vacation, despite the Agreement requiring her to do so. Father stated that Mother also violated the Modification by refusing to attend

counseling and pay her portion of the children’s extracurricular activities.

Mother admitted that she scheduled a vacation during the children’s

spring break period, but said she believed that she and Father were switching years

because Father had the children during spring break in 2019. She further admitted

that she did not provide Father with details about the vacation because she thought

their daughter had already provided those details to Father. Mother stated that the

vacation was canceled, however, due to the COVID-19 pandemic. She stated that

she attended one counseling session but the counselor advised her there was a

“conflict of interest” because of a prior protection order. Finally, Mother stated that

she had paid her portion of the agreed-upon extracurricular activity fees. According

to Mother, the Modification requires the parties to mutually agree on any additional

activities, and the fees Father requested were not for activities that she agreed to.

The parties did not dispute that Mother’s planned vacation never

occurred due to the COVID-19 pandemic. Nevertheless, the magistrate found that

competent and credible evidence existed that Mother “violated the Court’s order

regarding the Spring Break schedule.” Accordingly, the magistrate granted Father’s

motion and found Mother in contempt for the violation. The magistrate ordered a

suspended sentence of a $250 fine and 30 days in jail. The order provided that

Mother “could be purged” from the suspended sentence by “committing no

violations of the court’s order for the next nine months.” Mother timely objected to the magistrate’s decision, contending that

the vacation was canceled due to the COVID-19 pandemic and Father was not

deprived of his parenting time pursuant to the Agreement. Accordingly, Mother

stated that she did not violate the Agreement.

The trial court overruled Mother’s objections and adopted the

magistrate’s decision.

Mother now appeals, raising as her sole assignment of error that the

trial court erred and abused its discretion by finding her in contempt for violating

the Agreement.

When reviewing a finding of contempt, including a trial court’s

imposition of penalties, an appellate court applies an abuse-of-discretion standard.

In re Contempt of Morris,

,

(8th

Dist. 1996), citing Dozer v. Dozer,

,

(4th

Dist. 1993).

A juvenile court has authority to issue a contempt order for the failure

to comply with a visitation order pursuant to R.C. 2151.21 and 2705.031(A).

“Contempt is ‘a disregard of, or disobedience to, an order or command of judicial

authority.’” Phelps v. Saffian, 8th Dist. Cuyahoga No. 106475,

, quoting Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 96910,

. To establish contempt, a party must prove the existence of a valid court order,

that the respondent had knowledge of the order, and a violation of the order. In re

K.B., 8th Dist. Cuyahoga No. 97991,

. Civil contempt must be established by clear and convincing evidence, i.e., the trier of fact must have a firm

conviction or belief that the facts alleged are true. Hissa v. Hissa, 8th Dist.

Cuyahoga Nos. 99498 and 100229,

.

In this case, the juvenile court held Mother in contempt because she

“violated the Court’s order regarding the Spring Break schedule.” This finding is

unsupported by the record because there was no violation of the Agreement.

When Father filed his motion to show cause, Mother’s vacation with

the children, although scheduled, had yet to occur. Additionally, when the court

held the hearing on Father’s motion, the vacation had been canceled and thus never

happened. “It has been stated that ‘[t]here is, in our jurisprudence, no doctrine of

“anticipatory contempt,”’ and that ‘an adjudication of contempt should relate to past

conduct, not prospective conduct.’” Board of Edn. of the Brunswick City School

Dist. v. Brunswick Edn. Assn.,

,

(1980),

quoting United States v. Bryan,

,

,

(1950); and Wright v. Wright,

(Fla. App. 1976). Father’s motion

to show cause merely anticipated a breach of the Agreement, but it never occurred.

Accordingly, although Mother may have scheduled a vacation in contravention of

the written Agreement, this action did not interfere with Father’s parenting time and

thus, there was no violation of the Agreement. Accordingly, the juvenile court

abused its discretion in finding Mother in contempt. The assignment of error is

sustained. Although the juvenile court abused its discretion in finding Mother in

contempt, we agree with the court’s finding that “there is animosity between the

mother and father, and the hatred between the two of them is almost juvenile[,

which is] fostering a toxic environment for the child[ren].” Clearly, this animosity

is causing unnecessary legal intervention, which is detrimental to all parties,

including the children.

Judgment reversed and remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to the

trial court to vacate the order of contempt.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EMANUELLA D. GROVES, J., CONCUR