Colagiovanni v. Hayden , 2018 Ohio 4951 ( 2018 )

[Cite as Colagiovanni v. Hayden, 2018-Ohio-4951.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
TONI COLAGIOVANNI, : OPINION
Plaintiff-Appellant, :
CASE NO. 2018-L-034
- vs - :
DUCAL L. HAYDEN, :
Defendant-Appellee. :
Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division.
Case No. 2015 CV 01615.
Judgment: Affirmed.
David N. Patterson and Karen L. Hummel, 30432 Euclid Avenue, Suite 101, Wickliffe,
OH 44092 (For Plaintiff-Appellant).
Jon D. Axelrod and Rochelle M. Hellier, Axelrod Law Office, 36615 Vine Street, Suite
102, Willoughby, OH 44094 (For Defendant-Appellee).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Toni Colagiovanni, appeals from the February 8, 2018
judgment of the Lake County Court of Common Pleas, Juvenile Division. The trial court
adopted the December 4, 2017 magistrate’s decision that found appellant in contempt
of the trial court’s June 21, 2016 order and imposed a sentence conditioned on
appellant’s failure to purge. On appeal, appellant takes issue with the finding of
contempt and the purge conditions. The trial court’s judgment is affirmed for the
following reasons.
{¶2} Appellant and appellee, Ducal L. Hayden, are the parents of A.H. (d.o.b.
02/16/11). Appellant resides in Ohio, and appellee resides in Florida.
{¶3} On October 29, 2015, appellant filed a complaint in the Lake County Court
of Common Pleas, Juvenile Division, requesting to be designated the legal custodian of
A.H. Subsequently, appellant filed a motion to establish child support, and appellee
filed a motion for a shared parenting plan with a proposed parenting plan attached.
{¶4} A trial to the magistrate was scheduled to address appellant’s complaint
and the motions filed by the parties. However, in lieu of a trial, the parties reached an
agreement that they would follow a shared parenting plan pursuant to which both
parents were designated as legal custodian of A.H. Appellant was designated as the
residential parent, and the parties agreed A.H. would travel to Florida several times a
year to spend time with appellee. The shared parenting plan states, in pertinent part:
Unless the parties otherwise agree, Father shall have parenting
time with the minor child as follows:
 June 12 or the nearest weekend until two weeks prior to the
start of the school year every summer.
 Spring break even-numbered calendar year.
 Winter break from school in even numbered calendar years[.]
The parties may modify the dates and times of the above parenting
schedule as they can mutually agree in writing.
The parties shall meet at a central meeting point, the Cracker
Barrel restaurant at 2300 Legrand Road in Columbia, SC, for all
parenting time exchanges unless the parties agree otherwise.
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Transportation: The parties shall agree to a meeting place for all
parenting time exchanges approximately halfway between their
respective residences. If the parties cannot agree then the meeting
place will be the Cracker Barrel restaurant at 2300 Legrand Road in
Columbia, SC. Each parent shall be responsible for ensuring that
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only licensed drivers transport the child and that no person under
the influence of drugs or alcohol transports the child. If the parties
agree to fly the child they will share equally in the cost to do so, and
agree upon the most appropriate airport.
Regarding child support, the magistrate’s decision states: “The parties acknowledge
that mother receives child support through the U.S. Coast Guard. If necessary, she
may apply for child support through [the Lake County Department of Job & Family
Services] in the future.” The shared parenting plan was adopted by the trial court as a
court order on June 21, 2016.
{¶5} On June 21, 2017, appellee filed a contempt motion and a motion for
attorney fees. Appellee alleged appellant failed to allow him his parenting time pursuant
to the court’s order of June 21, 2016. Appellant filed a “Motion to terminate and/or
modify shared [p]arenting plan” on August 8, 2017.
{¶6} After a trial to the magistrate, a magistrate’s decision that included findings
of fact and conclusions of law was filed on December 4, 2017. Appellant’s motion to
modify or terminate the shared parenting plan was denied. The magistrate found
appellant to be in contempt of the court’s June 21, 2016 order. Appellant was
sentenced to “serve thirty (30) days in the Lake County Jail and is ordered to pay a
$250.00 fine.” Execution of the sentence was conditioned on appellant’s failure to meet
certain purge conditions.
{¶7} Appellant filed a transcript and objections to the magistrate’s decision.
Appellant argued appellee failed to prove by clear and convincing evidence that
appellant was in contempt. Appellant further raised the defense of substantial
compliance, arguing that she “substantially complied to the very best of her reasonable
ability * * * with the summer visitation in Florida in light of the best interest of the minor
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child, the Plaintiff’s concerns and financial difficulties, motor vehicle difficulties, and the
unsafe conditions of requiring a six-year-old child to fly unaccompanied from Ohio to
Florida.” Appellant also argued the purge conditions were unreasonable.
{¶8} With leave of court, appellant filed supplemental objections on January 30,
2018. Appellant did not raise any new objections but provided further analysis to the
objections previously raised.
{¶9} The trial court overruled the objections and supplemental objections on
February 6, 2018. Further, on February 8, 2018, the trial court entered judgment
adopting the magistrate’s decision of December 4, 2017. The judgment entry states:
The Court, having independently reviewed the matter and
considered the Decision and the law, finds the Decision to be
proper in all respects and adopts it in full.
It is therefore ordered:
 Father’s Motion to Show Cause and Motion for Attorneys Fees
filed June 21, 2017 is well-taken. Mother, Antoinette “Toni”
Colagiovanni is hereby found to be in contempt of the June 21,
2016 Order.
 Mother is hereby sentenced to serve thirty (30) days in the Lake
County Jail and is ordered to pay a $250.00 fine. That sentence
is suspended based upon Mother complying with the following
purge order:
 Father, Ducal Hayden, shall exercise compensatory parenting
time with [A.H.] during the 2017 and 2019 winter breaks from
school (for no less than ten days) and the 2019 Spring Break.1
 Mother is responsible for attorneys fees in the amount of
$900.00, payable in full to Mr. Axelrod within ninety (90) days
unless another payment arrangement is agreed to by Mr.
Axelrod.
1. At oral argument both parties agreed that the compensatory parenting time had already been
exercised. Although the parties did not specify, we presume only the time for the 2017 winter break was
satisfied. We note that, accordingly, any issues related to the purge condition ordering that father spend
compensatory time with A.H. for the 2017 winter break is rendered moot. See Marx v. Marx, 8th Dist.
Cuyahoga No. 82021, 2003-Ohio-3536, ¶28; Holeski v. Holeski, 11th Dist. Portage No. 2009-P-0007,
2009-Ohio-6036, ¶41.
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 Mother’s Motion to Terminate and/or Modify Shared Parenting
Plan filed August 18, 2017 is not well-taken and is hereby
denied.
 All prior [orders], unless expressly modified herein are still in
effect.
 The cost of this action is assessed to Plaintiff * * * and shall be
paid within 14 days. Any outstanding costs, fines and/or fees
shall be paid as previously ordered. Failure to pay as ordered
shall result in this matter being scheduled for Hearing on Failure
to Pay Court Costs.
{¶10} Appellant noticed a timely appeal. On appeal, she raises two assignments
of error.
{¶11} Appellant’s first assignment of error states:
{¶12} “The trial court abused its discretion in finding Appellant in contempt of
court.”
{¶13} Contempt is generally understood as a disregard for judicial authority and
“may include the disobedience of, or resistance to, a lawful order, judgment, or
command of a court officer.” In re G.M., 11th Dist. Trumbull No. 2016-T-0092, 2017-
Ohio-8145, ¶16, citing R.C. 2705.02; see also In re Guardianship of Hards, 11th Dist.
Lake No. 2007-L-150, 2009-Ohio-1002, ¶23 (citations omitted).
{¶14} Contempt proceedings can either be criminal or civil. See Docks Venture,
L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, ¶13, citing
State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554-555 (2001) (citation omitted). The
type of proceeding can be determined by looking at the purpose to be served by the
sanction. Id. Criminal contempt sanctions are designed to vindicate the authority of the
court and are unconditional and punitive in nature. Id. at ¶14 (citations omitted).
“Sanctions for civil contempt involve a conditional penalty with remedial or coercive
purposes and intent to compel compliance with a court order or compensate the other
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party for losses; where the contemnor has the opportunity to purge a sanction, the
contempt is considered civil.” Manley v. Manley, 7th Dist. Columbiana No. 17 CO 0006,
2018-Ohio-255, ¶12, citing Docks Venture, supra, at ¶15.
{¶15} To prove civil contempt, the moving party must establish by clear and
convincing evidence the existence of a court order and the nonmoving party’s
noncompliance with the terms of the order. In re G.M., supra, at ¶16; Abernethy v.
Abernethy, 8th Dist. Cuyahoga No. 92708, 2010-Ohio-435, ¶27, citing Morford v.
Morford, 85 Ohio App.3d 50, 55 (4th Dist.1993). If the moving party establishes a prima
facie case of contempt, the burden then shifts to the nonmoving party to establish a
defense by a preponderance of the evidence. Ferguson v. Boron, 7th Dist. Columbiana
No. 15 CO 0030, 2018-Ohio-69, ¶14, citing Morford, supra, at 55, and Jeffers v. Jeffers,
7th Dist. Belmont No. 07 BE 36, 2008-Ohio-3339, ¶15.
{¶16} A trial court’s finding of contempt will not be disturbed on appeal absent an
abuse of discretion. In re G.M., supra, at ¶18. We also review the trial court’s adoption
of a magistrate’s decision for abuse of discretion. Carson v. Holmes, 11th Dist. Portage
No. 2010-P-0007, 2010-Ohio-4199, ¶23 (citations omitted). “‘Abuse of discretion’ is a
term of art, describing a judgment neither comporting with the record, nor reason.” Id.,citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). “Further, an abuse of
discretion may be found when the trial court ‘applies the wrong legal standard,
misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’”
Id., quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th
Dist.).
{¶17} Appellant argues the trial court abused its discretion when it found her in
contempt because she substantially complied with the visitation order. In support, she
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cites to McCree v. McCree, 7th Dist. Mahoning No. 08 MA 109, 2009-Ohio-2639 and In
re Lane, 4th Dist. Washington No. 03CA35, 2004-Ohio-412. Both of those cases
indicate that substantial compliance with a court order can be a defense to the charge of
contempt. McCree, supra, at ¶27; In re Lane, supra, at ¶8. Appellant, however, fails to
explain how she substantially complied with the order.
{¶18} The magistrate found that appellee suggested A.H. fly to Florida as an
unaccompanied minor, but appellant objected because she did not think A.H. would feel
comfortable flying alone. Appellant suggested that appellee fly to Ohio and then fly
back to Florida with A.H. Appellee did not agree to that arrangement because he had
other children he needed to pick up on the way to South Carolina. The magistrate
further found: “Mother testified that she did not make [A.H.] available to Father for his
2017 summer parenting time, as she had unexpected expenses, [including] trouble with
her car.” However, the magistrate determined that although appellant made attempts to
plan the visitation, she did not substantially comply with the visitation order because she
failed to deliver A.H. to Florida or the designated meeting spot in South Carolina.
Appellant does not dispute that she failed to deliver A.H. for visitation. Because the
magistrate’s findings are supported by the record, and appellant has failed to
demonstrate how she substantially complied with the trial court’s June 21, 2016 order,
her argument is not well taken.
{¶19} Appellant also argues she was justified in violating the trial court’s order
because of her concern for A.H.’s well-being. Appellant maintains it was not in A.H.’s
best interest to fly to Florida as an unaccompanied minor. In support, appellant directs
us to the Fourth Appellate District’s opinion in McClead v. McClead, 4th Dist.
Washington No. 06CA67, 2007-Ohio-4624. In that case, the father of a minor child filed
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a motion for contempt against the child’s mother after she violated the parties’ visitation
order. The trial court declined to hold the mother in contempt. The father appealed. Id.
at ¶1. On appeal, the Fourth District Court of Appeals determined it could not conclude
the trial court abused its discretion in declining to hold appellee in contempt because
“[t]he trial court essentially determined that [mother] had justifiable reasons for
disobeying the visitation order. It concluded [mother] believed that the child was being
subjected to some type of sexual abuse and violated the order to protect the child.” Id.
at ¶34.
{¶20} In upholding the trial court’s decision to not find the mother in contempt,
the Fourth District emphasized that it was within the trial court’s discretion whether to
issue the finding of contempt and that the exercise of discretion could only be overruled
upon a showing of abuse. Id. at ¶33-34; see also Morehart v. Snider, 9th Dist. Summit
No. 24640, 2009-Ohio-5674, ¶38.
{¶21} The present case is distinguishable from McClead. Appellant has failed to
establish by a preponderance of the evidence that visitation with appellee is not in
A.H.’s best interest. Further, although it may not have been in A.H.’s best interest to fly
to Florida as an unaccompanied minor, there were other modes of transportation by
which appellant could have transported A.H. to Florida or to the designated meeting
point in South Carolina. The magistrate recognized that appellee declined to fly to Ohio
to pick up A.H. and then fly back to Florida and that appellant “incurred expenses in
2017 relative to her automobile and her home” which created barriers to transporting
A.H. to South Carolina. However, the magistrate concluded “it was nevertheless
incumbent upon Mother to make [A.H.] available to Father during Father’s designated
parenting time periods.” At the magistrate’s hearing, appellant argued she was unable
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to send A.H. to Florida for the summer visitation because she was having financial
issues. Appellant testified regarding expenses for her house and car, and
documentation of those expenses was entered into evidence. Appellant, however,
failed to testify regarding her income or to provide any other evidence of her financial
situation to support that she was financially precluded from making A.H. available for
the visitation. Appellant’s argument is not well taken.
{¶22} The evidence indicates appellant failed to comply with the trial court’s
June 21, 2016 order. Appellant has failed to demonstrate a valid defense for her failure
to comply. Accordingly, we cannot determine the trial court abused its discretion in
adopting the magistrate’s decision that found appellant in contempt of the trial court’s
June 21, 2016 order.
{¶23} Appellant’s first assignment of error is without merit.
{¶24} In her second assignment of error, appellant takes issue with the purge
order. The assignment of error states:
{¶25} “The trial court abused its discretion in ordering Appellant to pay
Appellee’s attorney fees and court costs.”
{¶26} Appellant argues that “the Magistrate’s conclusion that Mother should be
responsible for Appellee’s attorney fees in the amount of $900 was a clear abuse of
discretion and against the manifest weight of the evidence.” Appellant argues she is
unable to comply with the purge condition due to her inability to pay.
{¶27} This court has upheld the imposition of attorney fees as a condition of
purging contempt. Brandenburg v. Brandenburg, 11th Dist. Lake No. 2004-L-085,
2005-Ohio-6417, ¶10; see also R.C. 3109.051(K) (If any person is found in contempt of
court for failing to comply with or interfering with any order or decree granting parenting
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time rights issued pursuant to this section * * * the court that makes the finding * * * shall
* * * require the person to pay any reasonable attorney’s fees of any adverse party, as
determined by the court that arose in relation to the act of contempt[.]”). Appellant
bears the burden to establish her inability to pay the attorney fees. See Liming v.
Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, ¶20.
{¶28} As stated above, evidence was presented at the magistrate’s hearing
related to appellant’s expenses for her house and her car. Appellant also indicated that
appellee was in arrears of $2,000.00 for child support from “four months back in 2015.”
Appellant affirmed that appellee paid child support “willingly through his work.” This
arrangement is reflected in the trial court’s June 21, 2016 order, which states that child
support “is currently being handled through the U.S. Coast Guard in the State of Florida.
If it becomes necessary, Mother, * * * shall make an application through the Lake
County Child Support enforcement agency for support.” Appellant did not provide
evidence of her income or employment. Further, no documentation was provided to
support that appellee was in arrears of the support agreement, and the arrears
appellant alleges for unpaid support are from prior to the agreement memorialized in the
June 21, 2016 order. Accordingly, appellant has failed to establish her inability to pay
the purge order with sufficient evidence.
{¶29} Appellant’s second assignment of error is without merit.
{¶30} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas, Juvenile Division, is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.
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