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Lindholm v. Lindholm

Court of Appeals of Ohio, Twelfth District, Warren

May 15, 2017

ERIC A. LINDHOLM, Plaintiff-Appellee/Cross-Appellant,
v.
CHERYL L. LINDHOLM, Defendant-Appellant/Cross-Appellee.

         APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 11DR35150

          Rollman, Handorf & Conyers LLC, Jeffrey M. Rollman, for appellee/cross-appellant.

          Andrea G. Ostrowski, for appellant/cross-appellee.

          OPINION

          RINGLAND, J.

         {¶ 1} Cross-appellant, Eric Lindholm (Father), appeals a decision of the Warren County Court of Common Pleas, Domestic Relations Division, finding him in contempt.[1] For the reasons detailed below, we reverse the decision of the trial court and remand for further proceedings.

         {¶ 2} Father and Cheryl Lindholm ("Mother") were married with four children. In 2012, the parties divorced and entered into a shared parenting plan. The parties have since filed numerous post-decree motions.

         {¶ 3} In March 2015, the children's counselor voiced concerns to Father about Mother. As a result, Father decided to keep the children from Mother during her scheduled parenting week and, significantly, kept the children out of school for concern that Mother would attempt to retrieve the children from school. Father also filed a motion for emergency relief, but did not wait for a court ruling before resorting to self-help. Father's concerns were never substantiated by law enforcement or by children's services. Parenting time between the parties was ultimately re-established, but the record reveals that Mother missed several days of parenting time during the week of March 16 because of Father's actions.

         {¶ 4} Following a hearing, the magistrate found Father in contempt for violating the trial court's order regarding parenting time and ordered three days of jail, suspended on condition that he "comply with future orders regarding parenting time." Father filed an objection to the magistrate's decision, which was overruled. Father now appeals the decision of the trial court, raising a single assignment of error for review:

         {¶ 5} THE TRIAL COURT ERRED BY NOT GIVING THE PLAINTIFF A CHANCE TO PURGE THE CONTEMPT.

         {¶ 6} In his sole assignment of error, Father argues that the trial court erred by not providing him an opportunity to purge his contempt. We agree.

         {¶ 7} Contempt is classified as civil or criminal depending upon the character and purpose of the punishment. In re W.F., 12th Dist. Fayette No. CA2010-10-029, 2011-Ohio-3012, ¶ 12. Criminal contempt sanctions are punitive in nature, and such sanctions are designed to punish past affronts to the court and to vindicate the authority of the law and the court. In re A.A.J., 12th Dist. Warren No. CA2014-10-130, 2015-Ohio-2222, ¶ 43. Criminal contempt is usually characterized by an unconditional prison sentence, and the contemnor is not afforded an opportunity to purge himself or herself of the contempt. Id. Conversely, civil contempt renders punishment that is remedial or coercive and for the benefit of the complainant, and prison sentences are conditional. Id. A contemnor is said to "carry the keys of his prison in his own pocket" because the contemnor must be afforded the opportunity to purge his civil contempt. Id.; Marden v. Marden, 108 Ohio App.3d 568, 571 (12th Dist.1996) (sanction for civil contempt must give the contemnor an opportunity to purge himself of the contempt).

         {¶ 8} The trial court suspended Father's sentence on condition that he "comply with future orders regarding parenting time." The trial court, citing In re A.A.J., overruled Father's objections on the following basis:

The Court cannot create a proper remedy in the form of a purge order that undoes Father's conduct that resulted in the contempt finding. Without the power to turn back time, the Court is therefore limited in its options to fashion a remedy. As such, the Court is satisfied with the purge order requiring future compliance.

         {¶ 9} Based on our review, we find the trial court erred by not providing Father with an opportunity to purge his contempt. The reliance on In re A.A.J. was misplaced because the present situation is factually distinguishable. In that case, a father decided that he would no longer take his child to softball practices or games during his parenting time. Id. at ¶ 5. The father was found in contempt for violating the terms of the court's order regarding extracurricular activities and the parties' duty to facilitate the child's participation. Id. at ΒΆ 6. The trial court found the father ...


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