In re R.T.A. , 2012 Ohio 5080 ( 2012 )

[Cite as In re R.T.A., 2012-Ohio-5080.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98498
IN RE: R.T.A.
[APPEAL BY CUYAHOGA SUPPORT
ENFORCEMENT AGENCY]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. PR 00700489
BEFORE: Cooney, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEYS FOR APPELLANT
For C.S.E.A., et al.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph C. Young
Assistant County Prosecutor
C.S.E.A.
P.O. Box 93894
Cleveland, OH 44101-5984
For Angela Adkins
Angela Adkins
3501 East 104th Street
Cleveland, OH 44105
FOR APPELLEE
Reginald Peck, pro se
2175 East 46th Street
Cleveland, OH 44103
COLLEEN CONWAY COONEY, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Plaintiff-appellant Cuyahoga Support Enforcement
Agency (“CSEA”) appeals the trial court’s sua sponte dismissal of its prior contempt
order finding defendant-appellee, Reginald Peck (“Peck”), in contempt for failure to pay
child support. We find merit to the appeal and reverse.
{¶2} CSEA filed a motion to show cause related to Peck’s failure to pay
court-ordered child support. The court conducted a hearing on the merits of the motion
in July 2011. Following the hearing, the magistrate issued a journal entry reciting Peck’s
lack of compliance with an existing support order, the appropriate purge requirements, the
amount of arrearages, and a monthly amount due to be applied toward arrearages. The
magistrate found Peck in contempt, imposed a suspended sentence with an opportunity to
purge, and set a purge review hearing for April 11, 2012. The court adopted and
approved the magistrate’s decision in an entry journalized August 16, 2011.
{¶3} On April 11, 2012, the court held the purge review hearing. Counsel for
CSEA informed the court that Peck had fulfilled the purge requirements, a wage
attachment was in place, and CSEA was receiving monthly payments from him. Based
on this information, the court indicated on the record that it would deem the “cases with
Mr. Peck purged.” Thereafter, the court issued a journal entry finding that Peck had
purged the contempt and dismissing CSEA’s motion to execute sentence with prejudice
and ordering that the journal entry of contempt dated August 16, 2011 be vacated. This
appeal followed, involving only the court’s vacating the prior contempt order.
{¶4} In its sole assignment of error, CSEA argues the trial court abused its
discretion by sua sponte vacating its prior contempt order based on its finding that the
obligor had satisfied the purge conditions. It contends the trial court lacked authority to
sua sponte vacate its own prior contempt order. No challenge is raised regarding Peck’s
purging the contempt.
{¶5} A trial court has no authority to sua sponte vacate its own final orders.
Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist. No. 96726, 2011-Ohio-6437, ¶ 7,
citing Rice v. Bethel Assoc., Inc., 35 Ohio App.3d 133, 520 N.E.2d 26 (9th Dist.1987).
Since the adoption of the Civil Rules, Civ.R. 60(B) provides the exclusive means for a
trial court to vacate a final judgment. Rice at 134. The Ohio Supreme Court recently
held that, absent statutory authority, a trial court is generally not empowered to modify a
criminal sentence by reconsidering its own final judgment. State v. Carlisle, 121 Ohio
St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671.
{¶6} A contempt ruling is a final order once there is a finding of contempt and
the imposition of a penalty or sanction such as a jail sentence or fine. Jacobson v.
Starkoff, 8th Dist. No. 80850, 2002-Ohio-7, ¶ 16, citing Chain Bike v. Spoke N’ Wheel,
Inc., 64 Ohio App.2d 62, 64, 410 N.E.2d 802 (8th Dist.1979). Although there is a
conflict among Ohio courts as to whether the imposition of the penalty renders the
contempt order a final appealable order where the penalty is suspended and the contemnor
has an opportunity to purge the contempt, we are bound by this court’s precedent that
holds that such an order is final and appealable. 1 McCrea. Therefore, because the
August 16, 2011 contempt order was a final appealable order, the trial court lacked
authority to sua sponte vacate it.
{¶7} Accordingly, the sole assignment of error is sustained.
{¶8} Judgment reversed and case remanded for reinstatement of the August 16,
2011 judgment entry.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, juvenile court division, to carry this judgment into execution.
The Fifth, Sixth, and Eighth Districts hold that a contempt order is a final appealable order
1
if it includes both a finding of contempt and the imposition of a penalty, even though the order
contains purge conditions. McCrea v. McCrea, 8th Dist. No. 51324, 1986 Ohio App. LEXIS 9138(Nov. 20, 1986); Strong v. Strong, 6th Dist. No. L-01-1464, 2002-Ohio-234; Peterson v. Peterson,
5th Dist. No. CT2003-0049, 2004-Ohio-4714.
However, the Eleventh District follows the proposition that where a contemnor still has an
opportunity to purge the contempt by performing the required act, a contempt judgment is not a final
appealable order. Cooke v. Cooke, 11th Dist. No. 2005-G-2631, 2005-Ohio-2262; Davis v. Davis,
11th Dist. No. 2004-G-2572, 2004-Ohio-4390, ¶ 2. The Sixth District noted this conflict in In re
J.Z., 6th Dist. No. H-11-003, 2012-Ohio-1105.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., BOTH CONCUR IN JUDGMENT ONLY