Bourquin v. Freudeman ( 2011 )

[Cite as Bourquin v. Freudeman, 2011-Ohio-1073.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
CHRISTOPHER BOURQUIN : Julie A. Edwards, P. J.
: Sheila G. Farmer, J.
Plaintiff-Appellant : John W. Wise, J.
:
-vs- : Case No. 2010CA00086
:
:
SABRINA FREUDEMAN : OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas, Family
Court Division, Case No. JU-132077
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN JUERGENSEN ARNOLD GLANTZ, ESQ.
John L. Juergensen Co., LPA 4883 Dressler Road, N.W.
6545 Market Avenue, North Canton, Ohio 44718
North Canton, Ohio 44721
[Cite as Bourquin v. Freudeman, 2011-Ohio-1073.]
Edwards, P.J.
{¶1} Plaintiff-appellant, Christopher Bourquin, appeals from the April 15, 2010,
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Christopher Bourquin and appellee Sabrina Freudeman, who
were never married, are the biological parents of a daughter (DOB 1/27/04). The parties
entered into a shared parenting plan in March of 2005.
{¶3} On January 14, 2009, appellee filed a motion for reallocation of parental
rights, seeking termination of the shared parenting plan and sole custody of the parties’
daughter. On March 9, 2009, appellee filed an ex parte motion to suspend appellant’s
visitation with the minor child. Pursuant to an Order filed on the same day, such motion
was granted and appellant’s visitation rights were suspended until further order.
{¶4} Thereafter, on March 11, 2009, appellant filed an ex parte motion for
reinstatement of his court ordered visitation rights. As memorialized in a Judgment Entry
filed on March 13, 2009, the March 9, 2009 order suspending visitation rights was
vacated and a Guardian Ad Litem was appointed for the minor child. As memorialized
in an Order filed on April 16, 2009, both parties were ordered to submit to a hair follicle
test within 14 days.
{¶5} On May 8, 2009, the Guardian Ad Litem filed a motion asking that
appellant’s visits with the minor child be suspended because appellant had failed to
comply with court-ordered follicle testing and because of concerns over alcohol abuse.
Pursuant to an Order filed on May 11, 2009, appellant’s visitation rights were
suspended until further hearing.
Stark County App. Case No. 2010CA00086 3
{¶6} Subsequently, at a hearing held on September 3, 2009, and as
memorialized in a Judgment Entry filed on September 8, 2009, the parties agreed that
appellee would have residential placement and custody of the minor child and that
appellant “shall receive no visitation with the minor child pursuant to the Guardian Ad
Litem’s Recommendation filed herein.”
{¶7} Thereafter, on September 10, 2009, appellee filed a motion seeking child
support and for an order requiring appellant to seek gainful employment. Appellant, on
December 4, 2009, filed an ex parte motion seeking reinstatement of his parental
visitation and companionship rights. A pretrial was scheduled for February 17, 2010,
before a Magistrate. The Magistrate, pursuant to an Order filed on February 18, 2010,
ordered appellant to seek work at 20 places a month and to provide proof of the same
to the Guardian Ad Litem and to provide the Guardian Ad Litem with proof of long term
alcohol treatment by March 12, 2010. A pretrial was scheduled for April 21, 2010.
{¶8} On March 17, 2010, the Guardian Ad Litem filed a Notice with the trial
court stating that as of March 17, 2010, appellant had failed to provide the Guardian Ad
Litem with “evidence of compliance with the Court’s seek work order” and with proof of
long term alcohol treatment. Appellee, on March 24, 2010, filed a Motion to Show
Cause asking for an order requiring appellant to appear and show cause why he should
not be sentenced for contempt of court. A hearing on such motion was scheduled for
April 15, 2010. The March 24, 2010, Judgment Entry, scheduling such hearing stated, in
relevant part, as follows:
Stark County App. Case No. 2010CA00086 4
{¶9} “If you are found guilty of contempt for failure to abide by the Court’s
Orders regarding employment and alcohol treatment, the Court may impose the
following penalties:
{¶10} “(a) For a first offense - a fine of not more than Two Hundred Fifty Dollars
($250.00), a definite term of imprisonment of not more than thirty (30) days in jail, or
both.
{¶11} “(b) For a second offense – a fine of not more than Five Hundred Dollars
($500.00), a definite term of imprisonment of not more than sixty (60) days in jail, or
both.
{¶12} “(c) For a third or subsequent offense - a fine of not more than One
Thousand Dollars ($1,000.00), a definite term of imprisonment of not more than ninety
(90) days in jail, or both.
{¶13} “(d) In addition to the above, you will be Ordered to pay court costs and
reasonable attorney fees of the adverse party when you are found in contempt for failing
to pay support.”
{¶14} Via a Judgment Entry filed on April 15, 2010, the trial court found appellant
in contempt of the trial court’s order for failing to provide the Guardian Ad Litem with
proof of his work seeking efforts and with proof of long term alcohol treatment. The trial
court sentenced appellant to thirty (30) days in jail as “punishment for violating the
Court’s Order.”
{¶15} Appellant now raises the following assignments of error on appeal:
Stark County App. Case No. 2010CA00086 5
{¶16} “I. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS WHEN IT WENT FORWARD WITH HIS REQUESTED EVIDENTIARY
HEARING ON THE DAY THAT IT WAS REQUESTED.
{¶17} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN IT FAILED TO PERMIT APPELLANT THE OPPORTUNITY
TO PURGE HIS CONTEMPT BEFORE SENTENCING HIM TO JAIL.”
I
{¶18} Appellant, in his first assignment of error, argues that the trial court
violated appellant’s due process rights when it went forward with the April 15, 2010,
hearing on the Motion to Show Cause.
{¶19} Due process must be observed in both civil and criminal contempt
proceedings. Turner v. Turner (May 18, 1999), Franklin App. No. 98AP-999, 1998 WL
356279; Mosler, Inc. v. United Automobile, Aerospace & Agricultural Implement
Workers of America, Local 1862 (1993), 91 Ohio App.3d 840, 843, 633 N.E.2d 1193.
More particularly, due process requires that the alleged contemnor has the right to
notice of the charges against him or her, a reasonable opportunity to defend against or
explain such charges, representation by counsel, and the opportunity to testify and to
call other witnesses, either by way of defense or explanation. Id., citing Courtney v.
Courtney (1984), 16 Ohio App.3d 329, 332, 475 N.E.2d 1284.
{¶20} As is stated above, in the case sub judice, the Guardian Ad Litem, on
March 17, 2010, filed a Notice with the trial court stating that as of March 17, 2010,
appellant had failed to provide the Guardian Ad Litem with “evidence of compliance with
the Court’s seek work order” and with proof of long term alcohol treatment. After
Stark County App. Case No. 2010CA00086 6
appellee, on March 24, 2010, filed a Motion to Show Cause asking for an order
requiring appellant to appear and show cause why he should not be sentenced for
contempt of court, a hearing on such motion was scheduled for April 15, 2010. The
March 24, 2010, Judgment Entry scheduling such hearing advised appellant that, if
found guilty of contempt, he could be fined or jailed or both.
{¶21} At the April 15, 2010, hearing, appellant’s counsel requested an
evidentiary hearing “on all these issues so that the defendant (sic)1 is required to prove
these allegations.” Transcript at 5. The trial court then proceeded with the April 15, 2010
hearing and, as memorialized in a Judgment Entry filed on April 15, 2010, found
appellant in contempt.
{¶22} Appellant now maintains that he was denied due process of law because
he was not prepared to go forward with the evidentiary hearing on April 15, 2010,
because “standard procedure in the Family Court Division is for the court to schedule a
pre-trial for all matters that are set for evidence. Not only should there have been a
subsequent hearing for evidence but there should have been an intermittent pre-trial.”
{¶23} We find, however that appellant’s due process rights were not violated.
The trial court’s March 24, 2010, Judgment Entry specifically set a hearing for April 15,
2010, on the Motion to Show Cause and ordered appellant to appear on such date and
show cause why he should not be held in contempt for failing to seek work and furnish
proof of his efforts to do so to the Guardian Ad Litem and for failing to furnish the
Guardian Ad Litem with proof of long term alcohol treatment. The Judgment Entry
further advised appellant that he could be sent to jail if found in contempt. Thus,
appellant had notice of the allegations against him.
1
Counsel clearly meant to refer to appellee.
Stark County App. Case No. 2010CA00086 7
{¶24} Furthermore, appellant had the opportunity to be heard. At issue was
whether or not appellant provided the required proof to the Guardian Ad Litem. The
Guardian Ad Litem was present at the April 15, 2010, hearing and was available for
cross-examination. As noted by appellee’s counsel at the April 15, 2010, hearing, “I
can’t imagine what else needs to be done other that [the Guardian Ad Litem] testifying
to things that he has not received. “ Transcript at 5. We note that appellant, who himself
testified at the April 15, 2010, hearing,2 does not argue that he provided the required
proof to the Guardian Ad Litem.
{¶25} Based on the foregoing, appellant’s first assignment of error is overruled.
II
{¶26} Appellant, in his second assignment of error, argues that the trial court
abused its discretion when it failed to permit appellant to purge his contempt before
sentencing him to jail.
{¶27} An appellate court's standard of review of a trial court's contempt finding is
abuse of discretion. State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573
N.E.2d 62. In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶28} A contempt finding may be civil or criminal in nature. In Brown v.
Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610, the Supreme
Court of Ohio discussed the distinction between civil and criminal contempt as follows:
{¶29} “While both types of contempt contain an element of punishment, courts
distinguish criminal and civil contempt not on the basis of punishment, but rather, by the
2
We note that appellant’s testimony was not transcribed.
Stark County App. Case No. 2010CA00086 8
character and purpose of the punishment. * * * Punishment is remedial or coercive and
for the benefit of the complainant in civil contempt. Prison sentences are conditional.
The contemnor is said to carry the keys of his prison in his own pocket* * *since he will
be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually
characterized by an unconditional prison sentence. Such imprisonment operates not as
a remedy coercive in its nature but as punishment for the completed act of
disobedience, and to vindicate the authority of the law and the court. * * *” (Citations
omitted.)
{¶30} The sanction for a civil contempt must give the contemnor an opportunity
to purge himself of the contempt. Tucker v. Tucker (1983), 10 Ohio App.3d 251, 461
N.E.2d 1337.
{¶31} We find that the contempt in this case was criminal in nature. The trial
court, in its March 24, 2010, Judgment Entry, advised appellant that if he was found in
contempt for failing to abide by the trial court’s order regarding employment and alcohol
treatment, he could be sentenced to jail or fined or both. Subsequently, the trial court, in
its April 15, 2010, Judgment Entry, found appellant in contempt and committed him to
jail for thirty (30) days “as punishment for violating the Court’s order.” Because the
purpose was to punish appellant, the contempt was criminal in nature and the trial court
was not required to give appellant an opportunity to purge his contempt.
Stark County App. Case No. 2010CA00086 9
{¶32} Appellant’s second assignment of error is, therefore, overruled.
{¶33} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division, is affirmed.
By: Edwards, P.J.
Farmer, J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1202
[Cite as Bourquin v. Freudeman, 2011-Ohio-1073.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTOPHER BOURQUIN :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
SABRINA FREUDEMAN :
:
Defendant-Appellee : CASE NO. 2010CA00086
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Family Court Division, is
affirmed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES