Opinion
No. 85-1420
Decided May 21, 1986.
Domestic relations — Modification of visitation rights governed by R.C. 3109.05 — Rules governing modification of custody not equally applicable, when.
O.Jur 3d Family Law § 1198.
Modification of visitation rights is governed by R.C. 3109.05 and the specific rules for determining when a court may modify a custody decree are not equally applicable to modification of visitation rights.
APPEAL from the Court of Appeals for Summit County.
George and Cynthia A. Appleby, appellant and appellee, respectively, were married on June 24, 1977. The marriage was dissolved on February 2, 1984. Two children were born of that marriage. A separation agreement and amendment thereto executed by the Applebys, outlining custody, visitation rights and child support, was incorporated in the dissolution decree. The separation agreement as amended provided Cynthia Appleby with sole custody of the minor children and George Appleby with extensive visitation rights.
The amended separation agreement provides in pertinent part:
"5. The parties agree that the Wife shall have custody of the minor children of the parties, namely Michelle[,] age 5 and David[,] age 3. The Husband shall be entitled to exercise visitation with said children as follows:
"A. Alternate weekends.
"B. One (1) day during the week to be agreed upon between the parties.
"C. Alternate holidays and alternate children's birthdays.
"D. One (1) week at Christmas time.
"E. One (1) week at spring school break.
"F. Two (2) months each summer, to be agreed upon between the parties and during which period, the Wife shall be entitled to exercise visitation in accordance with this schedule as applicable."
On May 22, 1984, Cynthia filed a motion requesting that the trial court order George to show cause why he should not be held in contempt for failure to pay child support as per the decree. George then filed a motion to modify the support order because he was unemployed. He also filed a motion seeking to have Cynthia held in contempt for failure to comply with the visitation provisions. On August 15, 1984, Cynthia asked the court to modify George's visitation rights by substituting the trial court's "Standard Order of Visitation" for the visitation terms of the separation agreement. The parties' motions were heard by a referee who granted Cynthia's motion for modification of visitation and overruled both motions for contempt. George then filed a timely objection to the report of the referee, which was overruled by the trial court. On November 29, 1984, the report of the referee was incorporated into a judgment entry of the trial court.
Upon appeal the trial court's judgment was affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Vasko, Howard Morris Co., L.P.A., and C. Donald Morris, for appellee.
Quine Davis and John R. Quine, for appellant.
The issue presented in this cause is whether the trial court erred in modifying appellant's visitation rights. We hold that appellant's visitation rights were properly modified by the trial court and affirm the decision of the court of appeals.
Appellant avers that the lower courts erred because any modification of his visitation rights should be governed by R.C. 3109.04 and that the rules for determining when a court may modify a custody decree are equally applicable to modification of visitation rights. We do not agree. Modification of visitation rights is governed by R.C. 3109.05 and the specific rules for determining when a court may modify a custody decree are not equally applicable to modification of visitation rights.
R.C. 3109.04 provides specific guidelines for a trial court to follow in determining whether a prior custody decree should be modified. That section is silent as to rights of visitation. R.C. 3109.05 governs visitation rights. That section provides in pertinent part:
"(B) The court may make any just and reasonable order or decree permitting any parent who is deprived of the care, custody, and control of the children to visit them at the time and under the conditions that the court directs. * * *"
Therefore, parental rights of visitation are within the sound discretion of the trial court. This court has previously recognized that discretion and distinguished it from the trial court's discretion with regard to custody. "* * * While custody and visitation are obviously related, a court's discretion regarding visitation is broader. See R.C. 3109.05." State, ex rel. Scordato, v. George (1981), 65 Ohio St.2d 128 [19 O.O.3d 318].
The trial court is to make a "just and reasonable order or decree" concerning visitation rights in accord with R.C. 3109.05. In the case sub judice, we find the trial court's order modifying appellant's visitation rights is just and reasonable. While the visitation rights in the "Standard Order of Visitation" are not as extensive as the visitation rights provided appellant in the amended separation agreement, this does not make the trial court's order unjust and unreasonable. The referee held a hearing on the motions of the parties and made appropriate recommendations to the trial court. The recommendations were properly reviewed by the trial court and incorporated into its judgment entry. The court of appeals held that the order was reasonable and found no abuse of discretion by the trial court. Upon independent review of the record and order, we find no abuse of discretion.
The "Standard Order of Visitation" modifies or excludes visitations (B) through (F) provided in the amended separation agreement. (See fn. 1.)
Accordingly, we hold that appellant's visitation rights were properly modified by the trial court and affirm the decision of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., PARRINO, HOLMES, C. BROWN and WRIGHT, JJ., concur.
DOUGLAS, J., dissents.
PARRINO, J., of the Eighth Appellate District, sitting for SWEENEY, J.