Rich v. Rich , 2013 Ohio 2840 ( 2013 )

[Cite as Rich v. Rich, 2013-Ohio-2840.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
MICHELE R. RICH, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-T-0089
- vs - :
GARY R. RICH, :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 01 DR 0318.
Judgment: Reversed and remanded.
Carl Joseph King, 101 East Sixth Street, East Liverpool, OH 43920 (For Plaintiff-
Appellee).
Martin F. White, Martin F. White Co., L.P.A., 156 Park Avenue, N.E., P.O. Box 1150,
Warren, OH 44482 (For Defendant-Appellant).
Timothy R. Brookes, 631 Broadway, P.O. Box 15, East Liverpool, OH 43920 (Guardian
ad litem).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Gary Rich, appeals from the Judgment Entry of the
Trumbull County Court of Common Pleas, Domestic Relations Division, ordering him to
serve a 30-day jail term for contempt, but suspending the sentence based on certain
conditions. The issue to be determined in this case is whether a court may order a
party to serve a 30-day jail sentence for contempt, but suspend that sentence based on
conditions that the party obeys the law and promotes a loving relationship between his
children and their mother for a period of five years. For the following reasons, we
reverse the decision of the court below and remand for further proceedings consistent
with this opinion.
{¶2} On June 28, 2001, Michele Rich filed a Complaint for Divorce from Gary.
The parties have three children together. On November 29, 2001, a Judgment Entry
Decree of Divorce was filed, in which the divorce was granted and a Shared Parenting
Plan was adopted. On May 24, 2002, a Journal Entry vacated the prior Entry, but the
divorce remained in effect. On April 7, 2003, a Judgment Entry resolved the custody
issue, approving the parties’ Shared Parenting Plan.
{¶3} Subsequent litigation occurred as to various issues. On March 29, 2010,
a new Shared Parenting Plan was adopted by the court.
{¶4} On June 2, 2011, Michele filed a Motion to Cite for Willful Contempt. In
the Motion, she argued that Gary failed to comply with the Shared Parenting Plan by,
inter alia, denying her visitation, excluding her from the children’s medical appointments,
and not allowing her to have telephone communication with the children.
{¶5} The court found Gary in contempt of the existing Shared Parenting Plan in
a March 8, 2012 Judgment Entry, but withheld disposition pending further proceedings.
Although the Judgment Entry did not state the specific reasons supporting the finding of
contempt, a subsequent Judgment Entry on a Motion to Modify the Shared Parenting
Plan noted that Gary was found in contempt for “his infringement on the
Plaintiff/Mother’s parenting time.”
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{¶6} On October 5, 2012, the trial court issued a Judgment Entry, rendering its
sentence on the finding of contempt. The court ordered Gary to serve a 30-day jail
term, but suspended the sentence based on two conditions. The court required Gary to
obey all laws and court orders and to “utilize his best efforts to promote a solid and
loving relationship between his minor children and their mother” for a period of five
years. He was also ordered to pay the costs of the action, including attorney fees and
guardian ad litem fees.
{¶7} Gary timely appeals and raises the following assignment of error:1
{¶8} “The trial court abused its discretion and committed reversible error by
improperly conditioning the suspension of Appellant’s 30 day jail sentence for contempt
on the condition that he ‘obey all laws and Court Orders’ and ‘utilize his best efforts to
promote a solid and loving relationship between his minor children and their mother.’”
{¶9} In contempt proceedings, “a reviewing court must uphold the trial court’s
decision absent a showing that the court abused its discretion.” (Citations omitted.)
Cireddu v. Clough, 11th Dist. No. 2010-L-008, 2010-Ohio-5401, ¶ 41; State ex rel.
Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). This court has
described an abuse of discretion as a judgment “which does not comport with reason or
the record,” and one in which the court failed “to exercise sound, reasonable, and legal
decision-making.” (Citations omitted.) In re Beynenson, 11th Dist. No. 2012-G-3066,
2013-Ohio-341, ¶ 12.
{¶10} Gary initially explains that he is not appealing the lower court’s finding of
contempt, but that he is seeking to void the judgment ordering him to serve 30 days in
jail and suspending that sentence. He argues that the court erred by issuing a sanction
1. Michele did not file an appellee’s brief.
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for civil contempt that regulates his future conduct, and, in turn, does not afford him the
opportunity to purge his contempt.
{¶11} “Contempt is generally understood as a disregard for judicial authority. * *
* [C]ontempt proceedings may be either criminal or civil in nature. Criminal and civil
contempt serve different purposes in the judicial system and are governed by different
rules.” (Citations omitted.) In re Guardianship of Hards, 11th Dist. No. 2007-L-150,
2009-Ohio-1002, ¶ 23.
{¶12} Gary contends that the contempt in his case was civil. In order to
determine whether the trial court’s order for future conduct to be committed was proper
and whether the court was required to allow Gary to purge the contempt, we must first
consider whether the contempt finding was criminal or civil. Id. (“One charged and
found guilty of civil contempt must be allowed to purge him/herself of the contempt by
showing compliance with the court’s order he/she is charged with violating. * * *
However, in the case of criminal contempt, there is no requirement that the individual
charged be given the opportunity to purge the contempt.”).
{¶13} “Civil contempt is pursued for the benefit of a complainant and is therefore
remedial in nature. Alternatively, criminal contempt is usually characterized by
unconditional fines or prison sentences.” (Citations omitted.) In re A.K., 11th Dist. No.
2011-L-060, 2012-Ohio-221, ¶ 28; Brown v. Executive 200, Inc., 64 Ohio St.2d 250,
253, 416 N.E.2d 610 (1980) (“[p]unishment is remedial or coercive and for the benefit of
the complainant in civil contempt”). The distinction between civil and criminal contempt
is usually based on the “purpose to be served by the sanction.” State ex rel. Corn v.
Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001).
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{¶14} We note that Gary did not file the transcript of the contempt hearing. In
order to determine the purpose of the contempt sanction, an appellate court must
consider the entire record. State v. Kilbane, 61 Ohio St.2d 201, 206, 400 N.E.2d 386(1980). Since there is no transcript, we can only consider the evidence in the record
before this court, including the motion for contempt and the findings made by the court
in its Judgment Entry. Based on this record, we find that Gary was found to be in civil
contempt. The 30-day jail term imposed was conditional, as opposed to unconditional
jail terms ordered in criminal contempt, since imprisonment would not occur if Gary
complied with the conditions set forth by the court. In re Guardianship of Hards, 175
Ohio App.3d 168, 2008-Ohio-630, 885 N.E.2d 980 (11th Dist.) (“[o]ften, civil contempt is
characterized by conditional sanctions”) (citation omitted). Gary will not serve the
sentence unless he fails to follow certain conditions, which include obeying court orders
and fostering a relationship between his children and their mother for the next five
years. The fact that the sentence was suspended based on these conditions lends
support to a finding of civil contempt. See Zemla v. Zemla, 9th Dist. No. 11CA0010,
2012-Ohio-2829, ¶ 10, fn. 1 (where the contemnor’s full sentence was suspended, “the
court’s contempt order appears to have been intended primarily to coerce [her] into
compliance, a traditional civil contempt sanction”).
{¶15} In addition, the contempt order was based on claims, initially made by
Michele, that Gary was not allowing her to exercise certain parenting rights under the
Shared Parenting Plan, agreed to by both parties in 2010, including denying her
visitation with the children. This court has held that “civil contempts are those violations
which are on the surface offenses against the party for whose benefit the order was
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made.” In re Cox, 11th Dist. Nos. 98-G-2183 and 98-G-2184, 1999 Ohio App. LEXIS
6266, *10 (Dec. 23, 1999). The jail sentence was conditioned upon Gary facilitating a
relationship between Michele and the children, which implies that the contempt finding
was based on Gary’s failure to allow Michele to exercise her parenting rights and was
made for her benefit.
{¶16} Since the finding of contempt should be characterized as civil, the trial
court was required to give Gary a chance to purge the contempt. Kilbane at 206-207;
Stychno v. Stychno, 11th Dist. No. 2008-T-0117, 2009-Ohio-6858, ¶ 26 (“[b]efore the
imposition of a sentence for civil contempt, the trial court must afford the contemnor an
opportunity to purge himself of the contempt”).
{¶17} Various Ohio appellate districts have held that an order regulating future
conduct is improper and does not constitute a valid chance for a party to purge
contempt. See Tucker v. Tucker, 10 Ohio App.3d 251, 252, 461 N.E.2d 1337 (10th
Dist.1983) (an order that “purports to regulate future conduct” does not provide a “true
opportunity for purging” and is invalid); Solove v. Solove, 5th Dist. No. 2011-CAF-08-
0070, 2012-Ohio-1335, ¶ 12 (a court’s direction to comply with orders of the court in the
future was improper in a contempt case); In re M.H., 8th Dist. No. 97618, 2012-Ohio-
3371, ¶ 13, fn. 4.
{¶18} Where the court either does not make it clear that it is giving a party the
opportunity to purge contempt or regulates a party’s future conduct, the court has failed
to comply with the purge requirement for civil contempt and the contemnor must be
given a proper chance to purge. Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012,
967 N.E.2d 24, ¶ 17 (3rd Dist.) (when the trial court “did not use the word ‘purge,’ or
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otherwise characterize its decision in terms of an opportunity to purge” and ordered
future conduct to be regulated, the court erred in imposing the contempt sanctions,
since there was no clear opportunity to purge, and the matter was remanded for the
issuance of a proper purge order). Here, the court did not state that Gary had the
opportunity to purge and it did not set a purge hearing to determine whether Gary was
in compliance. It also attempted to regulate his future conduct by requiring him to follow
future court orders and facilitate a relationship between Michelle and the children for the
next five years.
{¶19} No specific order relating to the conduct that constituted the basis for the
contempt finding was given. There was no order requiring Gary to allow visitation on
certain dates, to make up missed visitation time, or ordering specific behavior based on
the violation that occurred. As discussed above, an order to comply with the law and
the shared parenting plan in the future does not satisfy the purge requirement. Solove
at ¶ 12 (“An order suspending punishment on the condition the [contemnor] comply in
the future with the court order does not allow for purging. Instead, it only regulates
future conduct.”).
{¶20} Based on this failure, the matter must be reversed and remanded for the
trial court to issue a valid purge order. This order must contain conditions that allow
appellant to remediate his specific contemptuous conduct. However, the 30-day jail
sentence itself was proper and should be maintained upon remand, with the court
allowing Gary to purge the sentence as described above.
{¶21} We recognize that this court has generally held that an order is not final if
it allows a party an opportunity to purge his contempt. Lundy v. Lundy, 11th Dist. No.
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2011-T-0110, 2012-Ohio-2007, ¶ 5 (where a party was given the opportunity to purge
the contempt but there has been no finding by the trial court that the contemnor has
failed to purge himself, the order appealed from was not final); Miller v. Miller, 11th Dist.
No. 2008-T-0076, 2009-Ohio-2092, ¶ 32. In the present matter, we do not find this
analysis to be applicable. Gary was not given an appropriate opportunity to purge in
this matter. Since there was no clear ability to purge, the foregoing cases are
distinguishable. See Burke v. Burke, 7th Dist. No. 11 MA 166, 2012-Ohio-6279, ¶ 32
(“[b]ecause the trial court’s order did not contain a valid purge condition,” the order was
final, since it “fails to present the jurisdictional quandary at issue” in cases dismissing for
lack of a final order); Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, 967 N.E.2d 24, at ¶
17 (finding that a final order existed in a case where the trial court failed to include a
proper opportunity to purge). It is also noteworthy that the trial court in this case did not
leave the matter open for a purge hearing or to take future action, which frequently
occurs in cases involving the lack of a final order.
{¶22} The sole assignment of error is with merit.
{¶23} Based on the foregoing, the Judgment Entry of the Trumbull County Court
of Common Pleas, Domestic Relations Division, sentencing Gary to 30 days in jail for
contempt and suspending that sentence, is reversed and the matter is remanded for
further proceedings consistent with this opinion. Costs to be taxed against appellee.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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