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In re M.O.E.W.

Court of Appeals of Ohio, Sixth District, Ottawa

December 27, 2019

In re M.O.E.W.
v.
K.M. Appellant M.W. Appellee

          Trial Court No. 2007-JUV-000035 JUVG

          Michael W. Sandwisch, for appellee.

          Danielle C. Kulik, for appellant.

          DECISION AND JUDGMENT

          OSOWIK, J.

         {¶ 1} This is an appeal from a judgment of the Ottawa County Court of Common Pleas, Juvenile Division, which found defendant-appellant mother, K.M., in contempt for violating two court orders: (1) plaintiff-appellee father's, M.W., parenting time schedule with the minor child, M.O.E.W., and (2) relocating her residence with M.O.E.W. without prior notice to the court. For the reasons set forth below, this court affirms the judgment of the juvenile court.

         {¶ 2} On July 12, 2007, appellee filed with the juvenile court a petition for parental rights over the child, who was then 15 months old. On September 13, 2007, the juvenile court filed a judgment entry ordering a shared parenting plan to which both parties, who never married, agreed. However, for the next 11 years the parties disputed the shared parenting plan, among other matters. During this period, effective on November 20, 2013, with consent of the parties, the juvenile court terminated the September 13, 2007 shared parenting plan, designated appellant as the residential parent and legal custodian to the child, and granted appellee unsupervised visitation and companionship pursuant to the juvenile court's standard "Companionship Schedule," known by local rule as "JC-3." Specifically, the order stated, "IT IS FURTHER ORDERED that Father shall have regular unsupervised parenting time pursuant to this Court's local rule known as JC-3 as attached and that all other provisions included in the attached JC-3 shall apply including all statutory notices." (Emphasis sic.) The juvenile court's judgment entry was journalized on November 27, 2013.

         {¶ 3} In the course of the litigation, this court affirmed the juvenile court's decision to deny appellee's motion for reallocation of parental rights and responsibilities and termination of the November 27, 2013 parenting time order. In re M.O.E. W., 6th Dist. Ottawa No. OT-17-022, 2018-Ohio-3512.

         {¶ 4} Disputes between the parties continued. On April 20, 2018, appellee filed a motion to show cause for contempt. He alleged four violations by appellant of the November 27, 2013 judgment entry: (1) denied Labor Day 2017 parenting time, (2) denied Christmas Holiday 2017 parenting time, (3) moving with M.O.E.W. without prior court approval and out of the child's school district, and (4) removal of M.O.E.W.'s telephone to deny telephone communications with appellee.

         {¶ 5} The contempt hearing was held on July 16, 2018, at which appellant pled not guilty. At the hearing, the juvenile court received testimony from appellant and from one of her ex-boyfriends, and accepted into evidence a number of exhibits. The transcript of the hearing is in the record.

         {¶ 6} On July 19, 2018, the juvenile court filed its judgment entry finding appellant in civil contempt for two of the four alleged violations of the November 27, 2013 judgment entry. Then on August 15, 2018, after the parties briefed the issues of sanctions and purge conditions, the juvenile court ordered sanctions for appellant's contempt, in addition to the conditions by which appellant may purge her civil contempt.

         {¶ 7} Appellant timely appealed the juvenile court's August 15, 2018 judgment setting forth two assignments of error:

I. [Appellant] was found in contempt for failing to allow [appellee] his parenting time on Labor Day against the evidence adduced at trial and against the case law.
II. [Appellant] was found in contempt for failing to provide notice before relocating against the evidence adduced at trial and against the case law.

         I. Law and Standard of Review

         {¶ 8} According to R.C. 2705.031(B)(2), "any person who is subject to any parenting time or visitation order or decree, may initiate a contempt action for failure to comply with, or an interference with, the order or decree." For the purposes of the matters in this appeal, we found the terms "parenting time," companionship," "visitation," and "custody" were used interchangeably in the record.

         {¶ 9} "[A] court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue [of] whether the party is in contempt of court." Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 23. The final judgment and orders made in cases of contempt may be reviewed on appeal. R.C. 2705.09. Appellate review of the juvenile court's decision in a civil-contempt proceeding is for an abuse of discretion. State ex rel Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 21. 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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Because abuse of discretion review is highly deferential, "we will not lightly substitute our interpretation for that of the issuing court." Hunter at ¶ 29.

         {¶ 10} The burden is on the moving party in a civil-contempt proceeding to provide clear and convincing evidence that the alleged contemnor is in contempt of court. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980); State ex rel Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637, 982 N.E.2d 664, ¶ 3, citing Pugh v. Pugh, 15 Ohio St.3d 136, 139, 472 N.E.2d 1085 (1984).

         {¶ 11} Contempt is defined by statute. "A person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer; * * *." R.C. 2705.02(A). "Contempt of court is defined as disobedience of an order of a court." Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus. "Compliance with existing court orders is not optional or subject to negotiation." Walton v. Walton, 6th Dist. Wood No. WD-05-002, 2005-Ohio-5734, ¶ 13.

         {¶ 12} "Clear and convincing evidence is 'that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19, quoting Cross v. Ledford, 161 Ohio St. 469, 471, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

         {¶ 13} "[P]roof of purposeful, willing or intentional violation of a court order is not a prerequisite to a finding of contempt." (Emphasis sic.) Pugh at 140. Nor is such proof required for imposing sanctions. "A court has authority both under R.C. 2705.02(A) and on the basis of its inherent powers to punish the disobedience of its orders with contempt proceedings." Zakany v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984), syllabus. "The purpose of sanctions in a case of civil contempt is to compel the contemnor to comply with lawful orders of a court, and the fact that the contemnor acted innocently and not in intentional disregard of a court order is not a defense to a charge of civil contempt." Windham Bank at paragraph three of the syllabus; State v. Kilbane, 61 Ohio St.2d 201, 205, 400 N.E.2d 386 (1980), quoting State v. Local Union 5760, United Steelworkers of America, 172 Ohio St. 75, 83, 173 N.E.2d 331 (1961) ("'[T]he purpose of sanctions in a case of civil contempt is to coerce the contemnor in order to obtain compliance with the lawful orders of the court.'").

         {¶ 14} In a civil-contempt proceeding, the appropriate standard of appellate review for the sanctions imposed is the primary purpose which the trial court sought to achieve. State v. Sandlin, 11 Ohio App.3d 84, 87, 463 N.E.2d 85 (6th Dist.1983). The sanction in a civil-contempt proceeding must give the contemnor an opportunity to purge the contempt, and after successfully purged, the purpose of the contempt sanction has been achieved and the sanction is discontinued. Id. at 87-88.

         {¶ 15} "Contempt may be classified as either direct or indirect. Direct contempt, which is statutorily defined as 'misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice,' may be punished summarily by the trial court. R.C. 2705.01. Indirect contempt is defined by R.C. 2705.02 * * * [and] takes place outside the presence of the court, which is usually unaware that it has occurred." Ginsburg v. Haddad, 6th Dist. Erie No. E-95-001, 1995 WL 571409, *3-4 (Sep. 29, 1995), citing Cleveland v. Ramsey, 56 Ohio App.3d 108, 109, 564 N.E.2d 1089 (8th Dist.1988)

         {¶ 16} The Ohio Supreme Court has held that, "'the fact that [R.C. 2705.02] inferentially classifies an act of resistance to a lawful court process or order as an act of indirect contempt does not limit the power of a court to determine, in its sound discretion, whether such an act constitutes direct or indirect contempt.'" Kilbane at 204, quoting Local Union 5760 at 81.

         {¶ 17} "Courts, in their sound discretion, have the power to determine the kind and character of conduct which constitutes direct contempt of court. In imposing punishment for acts of direct contempt, courts are not limited by legislation but have the power to impose a penalty reasonably commensurate with the gravity of the offense." Id. at paragraph one of the syllabus, citing Local Union 5760 at paragraph four of the syllabus.

         {¶ 18} After the hearing on contempt, the range of sanctions for a first offense by a contemnor found guilty is stated in RC 2705.05(A)(1).

In all contempt proceedings, the court shall conduct a hearing. At the hearing, the court shall investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge. If the accused is found guilty, the court may impose any of the following penalties: (1) For a first offense, a fine of not more than two ...

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