In re R.T.A. ( 2012 )


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  • [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