[Cite as Akroyd v. Akroyd,
2024-Ohio-4631.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
JAMES STEWARD AKROYD,
CASE NO. 5-24-09
PLAINTIFF-APPELLEE,
v.
GENNIFER LYNN AKROYD
(NKA HESSELING), OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Domestic Relations Division
Trial Court No. 2016 DR 00182
Judgment Affirmed
Date of Decision: September 23, 2024
APPEARANCES:
Kevin J. Stotts for Appellant
James E. Haughn II for Appellee
Case No. 5-24-09
WALDICK, J.
{¶1} Mother-appellant, Gennifer Akroyd nka Hesseling (“Mother”), brings
this appeal from the January 23, 2024 judgment of the Hancock County Common
Pleas Court, Domestic Relations Division, modifying the parenting time between
Mother and father-appellee, James Akroyd (“Father”). On appeal, Mother argues
that the trial court erred by modifying the parental rights and responsibilities of the
parties without providing proper notice. For the reasons that follow, we affirm the
judgment of the trial court.
Background
{¶2} The parties were married on December 24, 2005. They had two children
together: C.G.A., born in May of 2009, and C.S.A., born in February of 2012.
{¶3} In June of 2016, the parties filed for divorce. On August 11, 2017, the
parties reached an agreement on the issues of parental rights and responsibilities,
with the exception of child support, spousal support, and the division of debts and
assets. Pursuant to the agreement, Mother was designated residential parent, and
Father was designated non-residential parent. Father was awarded parenting time
on alternate weekends from 5:00 p.m. Friday to 5:00 p.m. on Sunday. He was also
awarded mid-week visitation on Monday and Wednesday from 4-8 p.m. The parties’
agreement was entered as part of the trial court’s final judgment, which was
rendered April 30, 2018.
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{¶4} Beginning in the year following the divorce decree, the parties engaged
in nearly constant litigation related to parenting time. Between October of 2019 and
January of 2023, Father filed five show-cause motions, alleging that Mother was in
contempt for denying him a significant amount of parenting time. By April of 2021,
Father alleged that he had calculated 540 days of lost parenting time. Father alleged,
and Mother did not deny, that Father had not engaged in meaningful parenting time
with the children after October 21, 2019. Notably, Allen County Children’s Services
became involved with the children in October 2019 following an allegation that one
child had been abused; however, that case was closed in the spring of 2020 with no
adjudication being made.
{¶5} As a result of the parties’ litigation and the surrounding circumstances,
the magistrate and the trial court amended parenting time between the parties and
the children in seven orders from 2019 to 2021.1 Father’s contempt motions were
held in abeyance while the parties and the children attended counseling to support
reconciliation; however, counseling did not resolve the issues and Father was still
not receiving parenting time in early 2023.
{¶6} Because he was still not receiving parenting time, Father pressed his
earlier-filed show-cause motions. Mother filed a Motion for Sanctions, arguing that
Father’s filings were frivolous.
1
In one odd modification that was agreed to by the parties, Father exercised parenting time twice per week
but he was required to remain outdoors with the children and Mother was permitted to watch from a distance.
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{¶7} A hearing was held before a magistrate on March 27, 2023, and May
31, 2023. At the hearing, Father presented the testimony of a therapist specializing
in reunification of families. He opined that the prior therapist had the wrong
approach to reunification.
{¶8} Mother testified at the final hearing that she was compliant with court
orders until further orders were issued, and she was concerned with the allegation
of abuse against Father by one of the children. Mother testified that she would let
the children decide if they wanted to visit their father.
{¶9} Father testified that his last meaningful, non-therapy visit with his
children was October 22, 2019. After hearing all of the testimony, the magistrate
indicated it would consider all of the pending motions and issue a ruling. The
magistrate noted it needed to do what was in the best interest of the children.
{¶10} On July 31, 2023, the magistrate issued a decision summarizing the
history of the case and the pending motions. Ultimately the magistrate determined
that Mother had established sufficient defenses to the accusations of contempt, and
that Father’s filings were not frivolous. Thus the magistrate recommended that all
of those motions be denied.
{¶11} However, the magistrate continued by indicating that it faced “an
equitable dilemma: neither parenting time nor family counseling is occurring. The
investigation of the ACCSB has been closed without any significant findings,
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charges being brought or resolution for this family.” (Doc. No 572). The magistrate
then stated:
Neither a finding of contempt (with its remedies of fines and
incarceration) nor the lack of a finding of contempt repairs the rift
between the children and Plaintiff in this case. The circumstances
have changed such that a simple return, on paper, to the parenting time
orders contained in the Decree of Divorce is unlikely to resolve the
issues. Only an equitable order by this Court to restore parenting time
will prevent the present rift between parent and child from becoming
a self-fulfilling prophecy that continues until these children
emancipate from this Court’s jurisdiction.
(Id.)
{¶12} The magistrate then determined that it was necessary, just, equitable,
and in the best interests of the children that parenting time be modified. Thus the
magistrate determined that a change in circumstances had occurred and it was in the
best interests of the children to modify the then-existing visitation order, which was
largely premised on recommendations of the family therapist, and nobody in the
family was seeing the family therapist. Father was awarded parenting time on
alternating weekends from Saturday at 12 p.m. until Sunday at 12 p.m. He was also
awarded visitation mid-week on Wednesdays. The parenting time was to begin the
first Saturday following issuance of a final judgment entry by the trial court.
{¶13} Mother filed multiple objections to the magistrate’s decision. She
argued, inter alia, that the magistrate modified a parenting order without a pending
motion in violation of her right to due process. After transcripts were filed, the trial
court filed an entry addressing Mother’s objection as follows:
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Case No. 5-24-09
Defendant first objects by claiming that the Magistrate’s Decision
essentially modifies the parties existing parental rights and
responsibilities without a pending motion or application to do so. The
Magistrate acknowledged the long history of parenting orders in this
case. (Magistrate’s Decision, pp. 2-5). Defendant outlines many of
these orders as well.
Defendant argues that, without a pending motion that seeks
modification of the current parenting order, the Magistrate is without
power to modify it. In one citation, Defendant refers to a case in which
the court sua sponte granted summary judgment in order to support
her claim. . . . The logic utilized by that Court is inapplicable here in
multiple respects. Not only did that case concern a summary
judgment, but it was decided only on trial briefs without any apparent
consent by the parties to do so, and upon the court’s decision to sua
sponte treat the briefs as a dispositive motion.
That is not the case here. In this case, the parties have filed multiple
motions, many of which directly or indirectly concern issues of
parenting time and the best interests of the children. The defendant
directs this Court to no other authority purporting to limit or prevent
the use of equitable powers, pursuant to R.C. § 3105.011, in this
fashion.
Defendant’s arguments are without merit because of the Magistrate’s
inherent equitable powers and the unique circumstances of this case.
The Magistrate recognized the prior parenting orders on multiple
occasions, and further elucidated the failures on both sides to follow
those orders. The Magistrate also fully considered the reasons for
those failures, many of which were both within and outside the control
of either party.
The Magistrate specifically recognized that her parenting time orders
in this Decision arise in equity and that she faced an “equitable
dilemma: neither parenting time nor family counseling is occurring.”
(Magistrate’s Decision, p. 8). The Magistrate outlined the efforts and
failures of both parties, the counselor, and even the children in
deciding that revisions were necessary. She also carefully considered
the Revised Code’s general favor towards children’s contact with their
parents, and recognized that the current parenting schedule does not
facilitate these important goals.
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Case No. 5-24-09
Despite a lack of a specific request for modification, the Magistrate is
fully within her power to make modifications to the parenting orders.
R.C. § 3105.011 states that courts of common pleas handling domestic
relations matters have “full equitable powers and jurisdiction
appropriate to the determination of all domestic relations matters. This
section is not a determination by the general assembly that such
equitable powers and jurisdiction do not exist with respect to any such
matter.” R.C. § 3105.011(A). “Domestic relations matters” is then
defined to include the “allocation of parental rights and
responsibilities, including the enforcement and modification of such
orders.” R.C. § 3105.011(B)(1) (emphasis added [by trial court]). The
Court “has the superseding obligation . . . to properly dispose of issues
regarding the children of the divorcing parents” specifically including
the application of R.C. § 3105.011. In re Staats, 2007-Ohio-111 [(3d
Dist.).] . . . The Magistrate specifically indicated that she was acting
in equity and utilized those powers appropriately.
This Court independently agrees with her analysis and finds them
appropriate. She further found that the circumstances have changed
and that the revised parenting time is in the best interests of the
children as a result of the need to correct the “present rift between
parent and child[.]” (Id. p. 9).
(Doc. No 585).
{¶14} Following its denial of Mother’s objections to the magistrate’s
decision, the trial court issued a final judgment entry “modifying parenting time”
on January 23, 2024. It is from this judgment that Mother appeals, asserting the
following assignment of error for our review.
Assignment of Error
The Common Pleas Court of Hancock County, Ohio erred as a
matter of law and to the prejudice of Appellant by modifying the
parental rights and responsibilities of the parties’ minor children
without providing Appellant proper notice as guaranteed by [the]
Due Process Clause of Law of the Fourteenth Amendment to the
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United States Constitution and Section 16, Article I of the Ohio
Constitution.
{¶15} In her assignment of error, Mother argues that the trial court erred by
modifying the parties’ parental rights and responsibilities without providing her
with proper notice in violation of her right to due process.
Analysis
{¶16} Revised Code 3105.011 governs equitable powers in domestic
relations matters. It reads as follows:
(A) The court of common pleas including divisions of courts of
domestic relations, has full equitable powers and jurisdiction
appropriate to the determination of all domestic relations matters. This
section is not a determination by the general assembly that such
equitable powers and jurisdiction do not exist with respect to any such
matter.
(B) For purposes of this section, “domestic relations matters” means
both of the following:
(1) Any matter committed to the jurisdiction of the division of
domestic relations of common pleas courts under section 2301.03 of
the Revised Code, as well as a complaint for child support and
allocation of parental rights and responsibilities, including the
enforcement and modification of such orders;
(2) Actions and proceedings under Chapters 3105., 3109., 3111.,
3113., 3115., 3119., 3121., 3123., 3125., and 3127. of the Revised
Code, actions pursuant to section 2151.231 of the Revised Code, all
actions removed from the jurisdiction of the juvenile court pursuant
to section 2151.233 of the Revised Code, and all matters transferred
by the juvenile court pursuant to section 2151.235 of the Revised
Code.
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{¶17} In addition to R.C. 3105.011, Civil Rule 75(J) indicates that “The
continuing jurisdiction of the court shall be invoked by motion filed in the original
action.” Courts have held that, “A postdecree show-cause motion filed by a party
invokes both the inherent power of a domestic relations court to enforce its own
orders and the court’s continuing jurisdiction[.]” State ex rel. Resnick v. Russo, 2000
WL 10204, * 2-3 (8th Dist.).
{¶18} Here, Father filed numerous show-cause motions to enforce the
court’s parenting time orders, and Mother filed a motion for sanctions, both
invoking the continuing jurisdiction of the domestic relations court under R.C.
3105.011 and Civil Rule 75(J). The trial court held hearings on all pending motions
over two days, and heard testimony from the parties in addition to others. After
hearing all the testimony and considering the evidence presented, the magistrate and
the trial court determined that although the contempt motions and motion for
sanctions should not be granted, the most recent parenting time order was not
effective because Father was still not receiving his parenting time.2
{¶19} The magistrate and the trial court then invoked equitable authority
under R.C. 3105.011 in an attempt to fix the very broken visitation issues between
the parents. In altering the parenting schedule, the magistrate indicated that there
had been a significant change in circumstances, and that it was in the children’s best
2
The most recent order had the parties following the recommendation of a therapist; however, there were no
scheduled appointments with the therapist and thus no movement toward Father receiving parenting time. In
fact, the therapist was on extended leave as of December of 2022.
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Case No. 5-24-09
interests that the most recent parenting-time order be altered. The trial court agreed
with those findings. Notably, Mother has not appealed the trial court’s findings with
regard to a change in circumstances or with regard to the best interest findings. Thus
those issues are outside our scope of review.
{¶20} Generally, “a trial court has broad discretion regarding the
modification of parenting time.” Souders v. Souders, 2022-Ohio-1953, ¶ 13 (1st
Dist.). However, Mother argues that the trial court did not have any discretion to
modify parenting time here because there was no “motion for modification of
parenting time” filed. Mother’s argument ignores the fact that numerous motions
were filed invoking the continuing jurisdiction of the domestic relations court in
order to enforce parenting time orders previously issued.
{¶21} Here, the trial court had years of filings and multiple hearings wherein
both parents testified, then made a determination that it was equitable to modify
parenting time because Father was receiving none.3 Moreover, although Mother
argues that she was not provided proper notice, she had full notice of the hearings
that occurred and she was entirely aware that the subject of the hearings was her
denial of Father’s parenting time. Thus Mother was apprised of the types of issues
that were being considered.
{¶22} Moreover, Mother cites no authority in her brief indicating that the
trial court may not utilize its equitable powers under R.C. 3105.011 to alter
3
The amount of parenting time Father ultimately received was still less than the original divorce decree.
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visitation as it was done in this case. Her primary support comes from an older case
from this Court, Potts v. Courter, 1992 WL 323811 (3d Dist.), wherein a
grandparent intervener filed a motion for contempt against Mother when Mother did
not permit the grandparent to have Christmas visitation with the child. The trial
court found Mother in contempt, and modified the visitation order to increase
grandmother’s visitation rights. This Court reversed both the contempt finding and
the modification, determining that a trial court errs by modifying visitation and
support payments as a sanction for contempt. Here, the modification was not a
sanction for contempt; rather, the modification was based on a change in
circumstances and the best interests of the children. Thus Potts is distinguishable.
{¶23} The other cases cited by Mother, Forrester v. Forrester, 2005-Ohio-
5230 (2d Dist.), and In re A.G., 2014-Ohio-2597, are also readily distinguishable
and do not compel a different outcome here. For example, Forrester concerned only
a mother being found in contempt for interfering with visitation of a child’s father.
A.G. dealt with issues related to whether a child’s due process rights were violated
by her exclusion from a hearing and has no direct bearing on this case.
{¶24} In sum, the parties’ filings invoked the continuing jurisdiction of the
trial court pursuant to Civ.R. 75 and R.C. 3105.011. Mother was fully aware of the
nature of the pending motions and purpose of the hearing. The trial court heard
evidence and considered all of the information before it and modified parenting time
to an amount that was still less than the original final decree, making the requisite
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findings to do so. The trial court specifically indicated that it was invoking its
equitable powers, and given the circumstances of this case, where Father had no
meaningful visitation with his children since 2019, we can find no error with the
trial court’s decision. Nor do we find a violation of Mother’s due process rights.
Therefore, Mother’s sole assignment of error is overruled.
Conclusion
{¶25} Having found no error prejudicial to Mother in the particulars assigned
and argued, her assignment of error is overruled and the judgment of the Hancock
County Common Pleas Court, Domestic Relations Division, is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlm
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