Morford v. Morford , 85 Ohio App. 3d 50 ( 1993 )

I concur in the majority judgment and in the principal opinion insofar as its analysis of, and reversal on, appellant's sixth assignment of error. The record indicates that current counsel for CSEA had previously represented appellant on these matters when the divorce decree was entered in March 1989. However, beginning the following July and continuing through October 1989 and October 1991, counsel has gone after his former client for violating the very order which counsel helped negotiate on his behalf. As aptly noted by Judge Grey, standards must be maintained and I am simply too uncomfortable with the course of these events to allow them to stand. That being said, I would disregard the remaining assignments of error pursuant to App.R. 12(A)(1)(c) and dispose of the case on this issue alone.

The principal opinion, however, goes on to address several other matters raised by appellant. While these matters are not particularly pertinent to the judgment of reversal, our decision to remand this case for further proceedings compels me to express certain reservations with respect to the contempt issue(s). The principal opinion declines to characterize the contempt in the cause sub judice as either civil or criminal but then goes on to hold that, in any event, appellant was given sufficient opportunity to purge the said contempt. I am not persuaded that this was the case.

To begin, contempt proceedings for failure to pay child support are generally civil in nature as any potential jail sentence is designed merely to encourage payment. See Baldwin, Ohio Domestic Relations Law (1987) 398-400, Section 39.03(A); 48 Ohio Jurisprudence 3d (1983) 445, Family Law, Section 1226; 17 Ohio Jurisprudence 3d (1980) 324, Contempt, Section 6; see, also, 24 American Jurisprudence 2d (1983) 1052, Divorce and Separation, Section 1067. Punishment imposed upon an adjudication of civil contempt must afford the contemnor an opportunity to purge himself of contempt. Fry v. Fry (1989),64 Ohio App.3d 519, 523, 582 N.E.2d 11, 13; Nardone v. Nardone (1989), 63 Ohio App.3d 798, 801, 580 N.E.2d 448, 449; see, also,Cleveland v. Ramsey (1988), 56 Ohio App.3d 108, 110,564 N.E.2d 1089, 1091. The judgment of contempt entered below does not afford appellant such an opportunity and, therefore, would appear deficient. As aforesaid, the principal opinion concludes that appellant was given "ample opportunity to purge himself" prior to the third contempt motion. I disagree. The lower court's ruling on these prior motions never adjudicated appellant in contempt and, thus, there was nothing to purge. Appellant was held in contempt of court only after the judgment entered on November 22, 1991, and at that time should have been afforded the opportunity to purge himself of such contempt.