In re M.O.E.W.
K.M. Appellant M.W. Appellee
Court No. 2007-JUV-000035 JUVG
Michael W. Sandwisch, for appellee.
Danielle C. Kulik, for appellant.
DECISION AND JUDGMENT
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
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
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.
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,
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
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
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
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 ...