COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59197 SUSAN McGANN, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION REGIS E. McGANN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations : Division : Case No. D-148,517 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Susan McGann, Pro Se 310 Canterbury Road Bay Village, Ohio 44140 For defendant-appellant: Brian M. Fallon CSANK & CSANK CO., L.P.A. 55 Public Square, Suite 1700 Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant Regis E. McGann appeals from the trial court's denial of his motions arising out of Susan McGann's alleged denial of visitation with their three children. For the reasons set forth below, we affirm. Regis and Susan McGann were divorced pursuant to an order entered June 10, 1985. Susan McGann was awarded custody. The court's findings stated that Regis McGann should be granted visitation as follows: ...reasonable and liberal visitation, including alternating weekends (Friday at 5:00 p.m. through Sunday at 8:00 p.m.), two (2) evenings during each week from 5:00 p.m. to 8:00 p.m. (Tuesday and Thursday unless otherwise agreed by the parties), four (4) weeks in summer (visitation to be reversed during said period unless Defendant and minor children are on vacation out of town) upon 60 days advance notice specifying dates, alternating holidays and birthdays, and other times as agreed by the parties. The court's order omitted some of the details of visitation set forth above, including the specification of Tuesday and Thursday for weeknight visitation. On December 29, 1988, appellant filed a motion to show cause, alleging that appellee Susan McGann denied him visitation. At a subsequent hearing on the motion, appellant indicated that visitation was denied on three Wednesday evenings in November, because appellee had "grounded" the couples' son. Appellant also claimed that visitation was denied over Christmas weekend, 1988. He claimed that appellee was supposed to drop the children off on Friday evening December 23rd, and that he would have returned -3- them on December 25th. The evidence indicated that this plan was never directly communicated to appellee; that appellant usually provided transportation; that the plan was contrary to visitation arrangements for past Christmases and was not what the children wanted. Appellant took the deposition of appellee on February 28, 1989. Appellee was not represented by counsel at that deposition. Appellee refused to answer questions about her babysitting arrangements on the basis of relevance, but answered all other questions. Appellant subsequently filed motions to compel and for fees arising out of appellee's refusal to answer questions at her deposition. A hearing on the motions regarding contempt, to compel deposition answers, and for fees was conducted on June 28, 1989 before a referee. Appellant elected to go forward on the contempt motion first. Appellee answered the babysitting questions at the hearing. The referee issued a report which was filed October 30, 1989. The referee recommended denial of appellant's motion, and recommended that the court's prior order granting visitation be modified. Appellant filed objections to the report, which were overruled. The trial court approved the referee's report, and adopted the referee's proposed modifications to the prior visitation order as follows: On the Court's own motion and for good cause shown, the prior order of this Court granting Defendant -4- visitation with the parties' minor children is modified as follows: 1. Every other weekend from Friday 5:00 p.m. to Sunday at 8:00 p.m., and two (2) evenings during each week from 5:00 p.m. to 8:00 p.m. to be Tuesday and Thursday. 2. Alternating holidays from 10:00 a.m. to 8:00 p.m. Holidays for purposes of this order shall be as follows: Christmas Eve Christmas Day New Year's Day Memorial Day Independence Day Labor Day Veteran's Day Thanksgiving Day Easter Sunday 3. Father shall have visitation on Father's Day from 10:00 a.m. to 8:00 p.m. Mother shall have possession of the children on Mother's Day. 4. Holidays, Father's Day and Mother's Day schedules shall take precedence over weekend visitation. 5. Defendant shall provide transportation to and from all visitations. 6. Defendant shall provide Plaintiff with 48 hours notice in the event he will not exercise any given visitation. 7. Defendant has the responsibility on visitations to take the children to their reasonably scheduled activities. 8. In the event the children are ill and unable to go on scheduled visitation, Plaintiff shall notify Defendant as soon as is reasonably possible. Illness sufficient to excuse the children shall be such as can be supported by a physician's letter to the effect that the children are too ill to visit. -5- 9. Defendant shall have additional visitation during the children's summer school vacation for a period of 4 continuous weeks, and defendant shall provide Plaintiff with written notice of the dates upon which he intends to exercise visitation, said notice to be provided no later than May 31st of each year. Plaintiff shall have the same visitation granted Defendant in paragraph #1 unless Defendant and the children are out of town. 10. At all times the children shall be allowed reasonable, free and private phone contact with either parent. 11. Defendant shall have such additional or alternate visitation as the parties may agree to in writing signed by both parties. Appellant brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED BY APPROVING THE REPORT OF THE REFEREE OVERRULING THE MOTION TO SHOW CAUSE. Disobedience of court orders may be punished by contempt. R.C. 2705.02(A). The decision of a court in a contempt proceeding will not be reversed absent an abuse of discretion. See, e.g., State, ex rel. Delco Moraine Div., General Motors Corp., v. Indus. Comm. (1990), 48 Ohio St. 3d 43, 44. Appellant claimed that appellee should have been held in contempt for denying visitation on three Wednesday evenings and over Christmas in 1988. The parties indicated at the hearing that they had established a pattern of Wednesday evening visitation between appellant and his son, Marty. They also indicated that appellee refused to allow visitation on two or -6- three Wednesdays in November because Marty had been grounded. Appellee stated that Marty was never grounded for a full week at a time, and that appellant made no effort to have visitation on other evenings during those weeks. As for Christmas, 1988, the parties indicated that they never communicated directly about their plans for visitation, apparently because appellant refused to speak with appellee. As a result, they intended to make their plans through the children. Past Christmases had been scheduled so that the children celebrated with appellee on Christmas Eve until late. They stayed overnight with appellant until noon of Christmas Day. Both parties stated that appellant usually provided transportation. In 1988, December 25 was a Sunday, and fell on appellant's weekend for visitation. Appellee stated that she told the children to work out a plan with their father and that she would go along with it. As of the middle of December, appellee knew that the children did not want to spend the entire weekend with their father. She understood that visitation would begin Friday evening December 23; that appellant would return the children Saturday December 24 in the afternoon for their Christmas celebration with appellee's family; and that appellant would pick the children up at 9:00 or 10:00 December 25 to spend the day with appellant's family. Appellant testified that he knew that the children did not want to spend the entire weekend with him. He also stated that -7- he did not intend to give up his weekend visitation, and that the Christmas visitation schedule was still unresolved as of December 22 or 23. On the morning of December 23, appellant apparently told his son that he would not pick the children up until 6:00 p.m. on December 25 instead of early morning. Appellee stated that her son was very upset about the change in plans, and that she immediately made plans to invite her family in on Christmas Day so that the children would not be alone. Appellant stated that he called fourteen-year-old Katie after speaking with Marty. He stated that he told Katie that he wanted the children from Friday until Sunday and that he wanted appellee to drop them off. Appellee did not drop them off. Appellant did not attempt to communicate with appellee or the children until the following evening, December 24, when he drove to the house. No one was home. Appellant talked to the children on Christmas Day and reminded them of his family party that day, but stated that "they never came over". Appellee stated that she did not take them to appellant because she had invited her family in and did not want to leave the party, and because appellant "chose not to be with them". As for Wednesday, December 28, appellee stated that Marty had already made plans to go to a birthday party and did not want to go with his father. The trial court did not abuse its discretion in refusing to hold appellee in contempt of court. The court's original order -8- did not specify whether Christmas constituted one or two holidays, or whether holidays preempted the normal weekend visitation schedule. We agree with appellant that appellee is not entitled to deny visitation for disciplinary reasons. However, the evidence indicated that appellant's lack of visitation resulted not solely from appellee's willful disobedience of specific court orders, but also from lack of communication and inability of the parties to agree on the details of visitation not provided in the original order. Appellant's first assignment of error is without merit. II. Appellant's second assignment of error reads as follows: THE TRIAL COURT ERRED WHEN IT APPROVED THE REFEREE'S REPORT MODIFYING THE VISITATION ORDER. Domestic relations courts are authorized to make visitation orders on a continuing basis pursuant to R.C. 3109.05. Civ. R. 75(I) provides in part that "[t]he continuing jurisdiction of the court shall be by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under Rule 4 through Rule 4.6." The courts of this state have held that visitation may not be modified in violation of Civ. R. 75(I), or where the court's jurisdiction has been invoked in a contempt proceeding. See Andrulis v. Andrulis (1985), 26 Ohio App. 3d 164, paragraph one of the syllabus; Moyer v. Moyer (Nov. 16, 1988), Geauga App. No. 1451, unreported. -9- However, in both of these cases, the court attempted to increase or restrict visitation rights as a punishment for contempt. Appellant claims that the trial court impermissibly modified his visitation rights when it adopted the referee's proposed order. Although the referee described his proposed order as a modification of the prior order, in fact it did not change the visitation rights set forth in the original order. The new order retained the identical visitation schedule set forth originally. The new order merely added details omitted from the first order, apparently made under the assumption that the parties would be able to work out those details. It identifies holidays; states that holidays preempt visitation weekends; that appellant shall provide transportation; that appellant shall take the children to their scheduled activities during visitation; includes notice provisions for illness and for summer vacations; stated that the children shall always be allowed phone contact with both parents; and that changes to visitation must be made in writing. Since appellant's visitation rights were not changed, but the mechanics of visitation were merely clarified, his second assignment of error is overruled. III. Appellant's third assignment of error reads as follows: THE TRIAL COURT ERRED IN FINDING THE APPELLANT'S MOTION TO COMPEL MOOT. Appellant's motion to compel sought answers to deposition questions. The deposition related to appellee's alleged denial -10- of visitation. Appellee was not represented by counsel at the deposition, and refused to answer questions regarding her babysitting arrangements on the basis of relevance. At the hearing on both the motion to show cause and the motion to compel deposition answers, both of which were accompanied by motions for fees, appellant elected to go forward on the motion to show cause first. In the course of questioning appellee regarding the contempt issues, appellee provided the discovery sought by the motion to compel. The regulation of the discovery process is committed to the discretion of the trial court. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, paragraph one of the syllabus; Smith v. Klein (1985), 23 Ohio App. 3d 146, paragraph four of the syllabus. The trial court found that appellant's motion to compel was moot because the appellant went forward with the hearing. We disagree. Appellant did not waive his motion to compel by going forward with a hearing on that and other motions. However, the record indicates that appellee was unrepresented by counsel when she refused to answer deposition questions; that the discovery sought by appellant was provided at the hearing; and that appellant was not prejudiced by the delay. Although the court dismissed appellant's motion to compel for the wrong reason, dismissal was not in error. See Taylor v. Yale & Towne Mfg. Co. (1987), 36 Ohio App. 3d 62, paragraph one of the -11- syllabus. Appellant's third assignment of error is without merit. Affirmed. Affirmed. It is ordered that appellee recover of appellant her 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 -- Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .