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S.H.B. v. M.W.L.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 25, 2019

S.H.B., Plaintiff-Appellee,
v.
M.W.L., Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DV-14-352429

          Rosenthal Thurman, L.L.C., and Adam J. Thurman, for appellant.

          Zagrans Law Firm L.L.C., and Eric H. Zagrans, for appellee.

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, JUDGE.

         {¶ 1} Respondent-appellant M.W.L. appeals from the trial court's order imposing a 30-day jail sentence as a result of his failure to purge his contempt. Because we find the record reflects that M.W.L. has failed to purge his contempt, we cannot find the trial court abused its discretion in ordering the imposition of sentence. We therefore affirm.

         Procedural History and Substantive Facts

         {¶ 2} On June 9, 2014, petitioner-appellee S.H.B. filed a petition for a domestic violence civil protection order ("CPO") against her then-husband, respondent-appellant M.W.L. S.H.B. sought protection for herself and her son. A magistrate issued an ex parte temporary CPO in S.H.B.'s favor, effective until June 8, 2015. Approximately one year later, on June 4, 2015, the trial court magistrate held a hearing on S.H.B.'s motions to show cause and found M.W.L. in contempt.

         {¶ 3} In its June 2015 contempt order, the magistrate specifically stated that M.W.L. admitted at trial that he placed a GPS tracking device on S.H.B.'s vehicle, where it remained after service upon M.W.L. of the ex parte CPO, and he did in fact continue to track S.H.B. on his computer after being served with the ex parte CPO. The magistrate found these actions constituted "following, stalking, bothering, harassing, and annoying the petitioner" and are prohibited by and in violation of the ex parte CPO. The magistrate also found that M.W.L. had several conversations with S.H.B. in which he orchestrated the dates, times, and location the calls would be placed, which the magistrate concluded demonstrated "continued control over [p]etitioner and her fragile mental and emotional state," in violation of the CPO's provision that M.W.L. not "initiate or have any contact with the protected persons * * * even with the permission of the protected person."

         {¶ 4} In finding M.W.L. in contempt on two separate occasions, the magistrate stated as follows:

Respondent is hereby sentenced to be incarcerated for a period of thirty (30) days in jail on each of the two (2) findings of contempt, or in lieu of incarceration, to perform not less than 200 hours of community service for each finding of contempt, or until the contempt is purged, whichever occurs first. The [r]espondent's sentence will be purged provided that within sixty (15) [sic] days of the issuance of a judgment [e]ntry herein [r]espondent submits to the [c]ourt's Community Service Liaison a confirmation of enrollment in the Batterers' Intervention Program from the Family Guidance Center and, upon the completion of the ten (10) week program, proof of same, along with a report from a psychiatrist or licensed clinical psychologist, which verifies that the [r]espondent is in compliance with any recommendations made by the mental health professional after a psychological assessment of [r]espondent and review of this court's June 9, 2014 ex parte [CPO], a copy of the [m]otions to show cause filed by the [p]etitioner and a copy of this [o]rder.

         {¶ 5} Following the hearing, the court issued a full CPO for the protection of S.H.B. and her son, effective until March 26, 2020. Thereafter, both parties filed numerous documents with the court. S.H.B. filed several motions to show cause for M.W.L.'s alleged continued refusal to comply with court orders, including the June 2015 contempt order, as well as a motion for imposition. And M.W.L., who has been represented by counsel at all times relevant to these proceedings, filed several motions, objections, and appeals to the Eighth District Court of Appeals.[1]

         {¶ 6} On July 2, 2015, M.W.L. filed a motion for a new trial and/or motion for relief from judgment, arguing that the magistrate's order wrongfully sentenced him to 60 days in jail or 400 hours of community service. On April 1, 2016, the trial court denied M.W.L.'s motion for a new trial and it granted M.W.L.'s motion for relief from judgment, in part, finding that "when two or more violations of a court order are brought out in one action for contempt, the court cannot punish the contemnor for each violation." Accordingly, the trial court modified the magistrate's order as follows:

[T]he magistrate's order of June 4, 2015 shall be corrected to apply a sentence of [r]espondent to be incarcerated for a period of thirty (30) days in jail for the two (2) findings of contempt, or in lieu of incarceration, to perform not less than 200 hours of community service for the two (2) findings of contempt, or until the contempt is purged, whichever occurs first instead of the sentence being applied to each of the findings of contempt.

         {¶ 7} The court stated that the remainder of the magistrate's June 2015 contempt order shall remain "in full force and effect." M.W.L. did not appeal the trial court's modified order.

         {¶ 8} Over two years later, on May 21, 2018, the court held a hearing on S.H.B.'s motion for imposition of the jail sentence, as well as her two motions to show cause. M.W.L., a medical physician and nonpracticing licensed attorney, testified. At the hearing, M.W.L. conceded that he had previously been held in contempt for violating the CPO on two separate occasions, he was aware of the court's orders (both the June 2015 order and the April 2016 modified order), and the court's orders were "clear" concerning M.W.L.'s obligations. Yet, M.W.L. denied that he intentionally failed to comply for years with the court's orders.

         {¶ 9} M.W.L. admitted that he has had the opportunity to perform 200 hours of community service but he did not complete the 200 hours of community service; he had not enrolled in the Batterers' Intervention Program; and he had not completed a psychological evaluation, as ordered by the court. M.W.L. testified, however, that he believed the court's contempt orders provided that he had a choice regarding his contempt: (1) serve 30 days of incarceration; (2) perform 200 hours of community service; or (3) purge his sentence. And according to M.W.L., he "decided to do community service," which he commenced in 2017 and 2018. M.W.L. testified that he had been performing community service with his synagogue, but he did not report his service to the court because he was unaware of any reporting requirement. He also testified that he had no intention to violate the court's orders; he believed that by performing community service he was complying with the court's orders; and he was still in the process of performing community service, nearly three years after the issuance of the initial contempt order.

         {¶ 10} On May 30, 2018, the trial court found that M.W.L. had not purged his contempt and ordered him to be incarcerated for 30 days for his failure to comply with the court's order. In its order, the court found that M.W.L. was previously found in contempt on June 4, 2015, and it made the following findings regarding the ...


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