COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71834 LINDA NEWHOUSE : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION DAVID TOLER : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 20, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-175,811 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: MARY V. G. WALSH Attorney at Law 449 The Arcade Cleveland, Ohio 44114 For defendant-appellee MITCHELL L. ALPERIN David Toler : Attorney at Law Two Commerce Park Square 23200 Chagrin Boulevard, #360 Beachwood, Ohio 44122 (Cont.) APPEARANCES: (Continued) Guardian ad litem: RENEE HELLER Attorney at Law 2 23775 Commerce Park Boulevard Cleveland, Ohio 44122 3 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Linda Newhouse appeals from the decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, in which she was found in contempt of the court's prior visitation orders, which require her minor children to visit with their father, defendant-appellee David Toler. For the reasons stated below, we affirm the decision of the trial court. The record reflects that the parties were divorced in June 1987 and appellant was awarded custody of their two minor children (Kelley, d.o.b. 9/15/79, and Nicholas, d.o.b. 8/27/81). Appellee was provided with regular visitation every other weekend from 4:00 p.m. Saturday until 7:30 p.m. Sunday and alternate Wednesdays from 4:00 p.m. to 7:30 p.m. Regular visitation was had until one day in January 1995, when appellant gave appellee a hand-written letter from his children when he arrived to pick them up for visitation stating that they found it best to not come and see him due to social activities, babysitting jobs, and his daughter's prospective attendance at drivers' ed. classes. At that point, all visitation ceased. On February 14, 1995, appellee moved the court to compel visitation; the following week appellant moved the court for modifications of both visitation and support. On May 9, 1995, a hearing was held and visitation was modified by agreement to Wednesday visits only and the family was referred to Family Conciliation Services for visitation conciliation and evaluation. 4 Pursuant to the agreement, on May 10th, the children visited their father, but no further visitation occurred after that date. On June 7, 1995, appellee moved the court to issue a contempt order against appellant for her failure to provide him with the agreed court-ordered visitation. During June and July, the family met with a social worker in the Family Conciliation Service, who submitted his recommendation to the court on August 4, 1995. Subsequently, the court recommended counseling and mediation and appointed a guardian ad litem for the children. Over the next few months, appellee met with his children at the office of the psychologist for counseling. On January 3, 1996, the parties entered into a four-week interim order limiting visitation to Tuesday afternoons. In that order, the court served notice to appellant that if visitation does not proceed as scheduled and it appears to the court that the mother has contributed in part, she might be sanctioned as the court deemed appropriate. Visitation only occurred one time. On March 5, 1996, the matter went to hearing before the magistrate on appellee's outstanding motion for contempt and appellant's motions for modification of both visitation and support. Testimony was taken from appellant, appellee, appellee's wife and the guardian ad litem. Appellant was called to testify as if on cross-examination and confirmed that the visitation schedule worked from 1987 until January 1995 when the children told her that they did not want to go. Appellant stated that she cannot force the children to visit. On the advice of her attorney, she had the 5 children put their reasons in writing. Although she acknowledged that the May 9th interim agreement required visitation, she testified that the children went once and refused to go again. Despite the recommendation of the social worker that the visitation should continue, she said that she believed that it was in the best interest of the children not visit with their father because they do not want to go. Next, appellee testified that he had visitation with his children from 1987 until it abruptly stopped in January, 1995. He said that after the May 9th Agreed Interim Order was issued, only one visit was accomplished. Appellee said that since January, he had seen his children only during visits with Family Conciliation Services where it was determined that visitation would be beneficial to all involved and, then, during visitation with a therapist twice a week for two or three months. Appellee's wife (the children's step-mother) testified that they had regular visitation with the children from 1988 until January, 1995. Finally, Renee Heller, Guardian Ad Litem for the children, testified that the children no longer wanted to see their father and that they believed they were old enough to make the decision regarding visitation. The guardian was aware that only one visitation had occurred from January, 1995 until October, 1995 because the children did not want to visit and the mother no longer forced them to abide by visitation. The guardian participated in eight supervised visitations which, although she noted were strained in the beginning, seemed normal under the circumstances. 6 The guardian found no reason to believe that visitation would be harmful to the children, although she testified that she did not believe the children could be forced to visit. The guardian opined that visitation should be continued and suggested that they work with appellant so that she would provide encouragement to the children to foster visitation. The guardian concluded that it would benefit the children to have a relationship with their father and, although she does not see benefit in forcing them to go on visitation, she would recommend that the children go. Appellant, to make her case, essentially testified that there is nothing more she can do to make her children visit with their father. At the conclusion of the hearing, the court accepted into evidence the exhibits offered by appellant and appellee and further entered as joint exhibits the report and recommendation of the Guardian Ad Litem, the recommendations of the psychologist and the opinion of the Family Conciliation Services. On May 30, 1996, because the magistrate left the employ of the court before issuing his opinion, the parties and the court agreed to have the court make a decision based upon the transcript and evidence submitted in the matter. On December 3, 1996, the judge issued his decision in which he found appellant in contempt of the court's prior visitation orders and sentenced her to perform forty hours of community service. The judge granted the motion to modify visitation in part, finding it to be in the best interest of Kelley to award reasonable visitation to appellee as determined by 7 Kelley, herself and, further, ordered the parties and Nicholas to undergo counseling to avoid future difficulties in abiding by the current visitation with Nicholas and, finally, found appellant's motion to modify support moot. Appellant timely appeals the decision of the trial court, challenging the court's finding her in contempt of the visitation order and the court's imposition of counseling upon the parties and the minor child Nicholas, and she advances two interrelated assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING APPELLANT IN CONTEMPT OF COURT FOR NOT SUFFICIENTLY ENCOURAGING HER TEENAGE CHILDREN TO VISIT WITH THEIR FATHER WHEN THEY INDEPENDENTLY MADE THE DECISION NOT TO VISIT AND WHEN FORCING THEM TO VISIT WAS NOT IN THEIR BEST INTERESTS. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING A RULING, BASED SOLELY ON A TRANSCRIPT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Quite simply, appellant argues that the trial court erred in holding her in contempt of court where she claims that she was not in contempt of the visitation order because the children chose not to visit their father. Appellant contends that it was error for the trial court to require counseling to facilitate visitation where forcing her children to visit their father is not in the children's best interest. Further, appellant argues that the totality of the testimony leads only to the conclusion that the 8 children in this case made an independent decision not to visit with their father and she could do nothing to change their minds; consequently,it was an abuse of discretion for the trial court to hold her in contempt and order visitation and counseling for the parties and minor child, Nicholas, because such determination is against the manifest weight of the evidence. We do not agree. Disobedience to court orders may be punished by contempt. R.C. 2705.02(A). In State ex rel Delco Moraine Division of General Motors Corp. v. Industrial Commission (1990), 48 Ohio St.3d 43, the supreme court held that the decision of a court in a contempt proceeding should not be reversed absent abuse of discretion. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1985), 5 Ohio St.3d 217. Further, judgments supported by some competent credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C. E. Morris Co. v. Foley Construction Co. (1984), 54 Ohio St.3d 279. With these standards in mind, we review the matter before us. In the matter before us, the trial court held a full hearing and found that appellant did not satisfy her duty to provide visitation based upon the history of the case, the testimony and report of the guardian ad litem. The record reflects that the evidence before the court included the testimonial evidence of appellant (mother), appellee 9 (father), step-mother, and guardian ad litem and the written reports and recommendations of the guardian ad litem, the social worker, and the psychologist, all of whom interviewed each of the family members. Appellant testified that she has told her children that they should go to visit their father, but they are old enough to make up their minds and she cannot force them to visit. However, appellant admitted that she told the children that they had to go to the court-ordered counseling with the psychologist. They honored the court order even though they did not want to go. The testimony of the guardian ad litem indicated that there is no legitimate reason for visitation to have stopped. The children have not expressed any negatives of the visitation to her, other than the conclusion that they do not want to have visitation. The guardian testified that appellant is sending an unhealthy message to the children that they can do what they want with respect to the visitation order. The guardian believes that visitation would be beneficial to the children, although she agreed that a forced visitation would not be beneficial. Consequently, she would recommend working with appellant to encourage the children to participate in visitation. The report of the guardian ad litem confirms that appellant gives lip service at best to her pronouncements that she wishes the children could better interact with their father. The report indicates that the children have a desire to disassociate themselves from their father and have therefore been deprived of 10 their right to have two quality participating parents. She further recommended that the mother owes the children her best efforts to reunite them with their father. The report of the social worker of the Family Conciliation Services states that the interviews with the children reflect much of their mother's thinking and statements which makes one wonder how much of the situation is being discussed at their home with them in an effort to alienate them from their father. The report concludes with the recommendation that visitation resume through the mediation of a family therapist to ease back into the relationship that they enjoyed prior to this disruption. The report of the psychologist, based upon six sessions with father and children, recommends that the children participate in at least monthly meetings with their father to maintain some openness of communication. The report further indicates that the intensity of the children's hate and hostility does not seem to relate to a patterned chain of events in their childhood, rather the list of six reported incidents which continue to be reiterated. This intensity may be due in part to the increasing discomfort felt by the children as a result of their mother's strong negativity towards Mr. Toler. *** [I]t is suggested that the children be scheduled for gradual visitation with their father. *** It may be that these visits would be more productive if each child visited separately. Nicholas still seems more open to the possibility of re-establishing some connection with his father. *** 11 We acknowledge that the right of visitation should be denied only under extraordinary circumstances, such as the unfitness of the non-custodial parent or a showing that the visitation would cause harm. Foster v. Foster (1974), 40 Ohio App.2d 257. If a court establishes a visitation schedule concerning the minor children of the parties, in the absence of proof showing that visitation with the non-custodial parent would cause physical or mental harm to the children or a showing of some justification for preventing visitation, the custodial parent must do more than merely encourage the minor children to visit the non-custodial parent. Smith v. Smith (1980), 70 Ohio App.2d 87. The burden of proof is on the party contesting the visitation privileges, and absent a showing of extraordinary circumstances, the trial court may fashion any just and reasonable visitation schedule. Pettry v. Pettry (1984), 20 Ohio App.3d 350,352. To support her position, appellant relies on Pettry, supra, for the proposition that if a child is actually unwilling to see the non-custodial parent and no useful purpose would be served by forcing visitation, visitation privileges may be denied. We find such reliance on Pettry to be misplaced. In Pettry, the children each had indicated to the psychologist that the father was mean and had previously beaten their mother and the older brother; they feared the father and did not want to visit him. The psychologist recommended that the children not visit if they so chose. The trial court concluded that visitation would not be in the best interests of the children and denied the father the right to 12 visitation. However, even though the factual circumstances of Pettry are more compelling that the case before us, the court of appeals reversed, finding that the trial court erred when it denied the father his visitation rights, holding that [t]here was no showing that appellant was unfit or that visitation would cause harm to his children. *** [A] supervised or other limited visitation should be ordered. A total severance between appellant and his younger sons should be the last resort. Id. at 353. (Emphasis added.) The Pettry court reasoned that until a child can affirmatively and independently decide not to have any visitation with the noncustodial parent, the relationship between a child and the noncustodial parent should not be totally severed ***. Id. at 352-353; see, also, Smith v. Smith (1980), 70 Ohio App.2d 87. With the evidence in record before us, we find competent, credible evidence exists upon which the court could conclude that appellant was in contempt of court for failure to comply with the visitation orders and, further, competent, credible evidence exists to support the conclusion that visitation with appellee was in the best interest of the minor child Nicholas. Accordingly, we find that the decision of the trial court was not against the manifest weight of the evidence and the trial court did not abuse its discretion in finding appellant in contempt of the court's previous orders. Appellant's assignments of error are not well taken. The decision of the trial court is affirmed. 13 It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas, 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. DAVID T. MATIA, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .