Solove v. Solove , 2012 Ohio 1335 ( 2012 )

[Cite as Solove v. Solove, 2012-Ohio-1335.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JEROME G. SOLOVE : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2011-CAF-08-0070
ALICE M. SOLOVE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Division of
Domestic Relations, Case No. 06DRA
02059
JUDGMENT: Affirmed in part and Vacated in part
DATE OF JUDGMENT ENTRY: March 26, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID J. GORDON ANTHONY M. HEALD
40 N. Sandusky Street 125 N. Sandusky Street
Delaware, OH 43015 Delaware, OH 43015
[Cite as Solove v. Solove, 2012-Ohio-1335.]
Gwin, P.J.
{1} Defendant-appellant Alice M. Solove appeals a judgment of the Court of
Common Pleas, Domestic Relations Division, of Delaware County, Ohio, which adopted
the decision of the magistrate finding appellant in contempt of court and ordering her to
provide health insurance for her two minor children under her employer’s family
insurance plan. Plaintiff-appellee Jerome G. Solove is her ex-husband and the father of
the children. Appellant assigns four errors to the trial court:
{2} “I. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND
ABUSED ITS DISCRETION IN FINDING APPELLANT IN CONTEMPT OF COURT,
PARTICULARY IN LIGHT OF THE FACT THAT NO MOTION FOR CONTEMPT WAS
PENDING.
{3} “II. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND
ABUSED ITS DISCRETION IN ORDERING HER TO OBTAIN HEALTH INSURANCE
FOR THE YOUNGER MINOR CHILDREN OF THE PARTIES.
{4} “III. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT
AND ABUSED ITS DISCRETION IN NOT ALLOWING REQUIRED COURT
PROCEEDURES IN THE HEARING IT CONDUCTED ON MAY 2, 2011.
{5} “IV. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT
AND ABUSED ITS DISCRETION IN REFUSING TO GRANT THE CONTINUANCE
SOUGHT.”
{6} The record shows the parties terminated their marriage by way of an
agreed judgment entry and decree of divorce on June 7, 2007. The parties’ shared
parenting plan provided in pertinent part:
Delaware County, Case No. 2011-CAF-08-0070 3
The Father shall provide health and medical insurance for the children *** should
the Mother later be able to obtain health insurance coverage for the children
which is available to her for reasonable cost through employment and if such
insurance is less costly or has better coverage than the Father’s current
insurance plan, then Mother shall provide health and medical insurance to the
children at that time.
{7} On February 23, 2011, appellee filed a motion to require appellant to cover
the children on her health insurance. Appellant responded with a pro se show cause
motion alleging appellee had failed to pay spousal support. On April 27, 2011, appellant
filed a motion to continue the hearing that had been set for May 2. The magistrate
overruled the motion and conducted a hearing on May 2. The magistrate swore both
parties in and after some discussion, appellant withdrew her motion for contempt.
{8} The magistrate found appellant in contempt and directed her to obtain and
maintain health insurance for the minor children. The trial court overruled appellant’s
objections, finding the evidence presented to the magistrate supported her decision.
I.
{9} In her first assignment of error, appellant argues the court abused its
discretion in finding her in contempt of court, particularly because no motion for
contempt was pending. At the hearing, both parties agreed there was no motion for
contempt of court filed against appellant, but only a motion to require her to add the
children to her health insurance coverage.
{10} Contempt has been defined as a disregard, or disobedience to, an order or
command of judicial authority. State v. Flinn, 7 Ohio App. 3d 294, 455 N.E. 2d 691Delaware County, Case No. 2011-CAF-08-0070 4
(1982). Contempt can be classified as civil or criminal, depending upon the character
and purpose of the punishment imposed. The punishment for civil contempt is remedial
or coercive in nature and for the benefit of the complainant. Pugh v. Pugh, 15 Ohio St.
3d 136, 472 N.E. 2d 1085 (1984). The purpose of the punishment for criminal
contempt, on the other hand, is punitive and not coercive and usually involves
unconditional fines or prison terms. Id. The burden of proof in a civil contempt action is
clear and convincing evidence, while in a criminal contempt action it is beyond a
reasonable doubt. Brown v. Executive 200, Inc., 64 Ohio St. 2d 250, 416 N.E. 2d 610(1980). Proof of purposeful, willing or intentional violation of a court’s priority is not
required in civil contempt. Pugh, supra. A court may sua sponte make a finding of
contempt.
{11} Our standard of review is the abuse of discretion standard. State ex rel.
Ventrone v. Brikel, 65 Ohio St. 2d 10, 417 N.E. 2d 1249 (1981). Abuse of discretion
connotes an attitude on the part of the trial court that is unreasonable, arbitrary or
unconscionable. Rock v. Cabral, 67 Ohio St. 3d 108, 616 N.E. 2d 218 (1993).
{12} A sanction for civil contempt must allow the contemptnor the opportunity to
purge himself or herself of the contempt. In Re: Purola, 73 Ohio App. 3d 306, 596 N.E.
2d 1140 (1991). An order suspending punishment on the condition the contemptnor
comply in the future with the court order does not allow for purging. Instead, it only
regulates future conduct, and is a reaffirmation of the court’s previous order. Tucker v.
Tucker, 10 Ohio App. 3d 251, 461 N.E. 2d 1337 (1983).
{13} Here, the order does not provide for any penalty or sanction for appellant’s
prior conduct. The order does not allow for her to purge herself of the contempt, but only
Delaware County, Case No. 2011-CAF-08-0070 5
directed her to comply in the future with the court order. We find the court erred in
finding appellant in contempt.
{14} The first assignment of error is sustained.
II.
{15} In her second assignment of error, appellant argues the court abused its
discretion in ordering her to obtain health insurance for the minor children. The parties’
agreement stated that appellee should provide the insurance unless appellant’s is “less
costly or has better coverage”. Appellant argues the evidence did not establish what
each party’s policy would cover or how much each party would pay to add the children
to the policy. Appellant concludes appellee did not meet his burden of proving
appellant’s policy was better or cheaper, and the court should not have ordered her to
provide health insurance for the children.
{16} Appellant filed pro se objections to the magistrate’s decision, arguing
appellee would maintain a family plan for insurance regardless of whether these
children were included, so the two minor children cost him nothing extra. By contrast,
her employment was soon to be cut to part-time and she would no longer be eligible for
insurance except under COBRA. She alleged adding the children to her health care
policy would cost more and provide less.
{17} The trial court addressed appellant’s objections in its judgment entry of
June 30, 2011. The court found it was limited in its review to the evidence the
magistrate had before her when she made her decision, and appellant had not
presented any documentation to show her employment would be cut from full-time to
part-time, and she would lose her medical insurance benefits. The court also noted that
Delaware County, Case No. 2011-CAF-08-0070 6
at the hearing appellant admitted she was not aware that she had to provide health
insurance if the cost was less to her because she did not look at the shared-parenting
plan. Appellee testified he had contacted her when she got her job to ask about insuring
the children.
{18} Appellant incorrectly asserts the magistrate based her decision solely upon
representations and statements made rather than on testimony presented. The
transcript of the hearing shows both parties were sworn in at the beginning of the
hearing, and while the magistrate conducted the hearing rather informally, nevertheless,
the testimony constituted evidence.
{19} The second assignment of error is overruled.
III.
{20} In her third assignment of error, appellant argues the magistrate
disregarded all the proper procedures in conducting the hearing. Appellant argues the
magistrate announced from the bench the motion to continue would not be granted, but
did not rule on it in any “proper fashion” prior to the date of the hearing. Appellant also
argues the magistrate did not require appellee, as the moving party, to present
evidence, but merely asked questions of her own and did not have the documents
marked as exhibits.
{21} At the hearing, appellant advised the court the basis of her motion to
continue was her expectation she could not afford to retain an attorney until June 1.
The court found the motion had been pending since February 23, and appellant had
ample opportunity to hire an attorney.
Delaware County, Case No. 2011-CAF-08-0070 7
{22} We find although the hearing before the magistrate was informal,
nevertheless, it was not procedurally flawed. Appellant was afforded notice of the
proceeding and was given the opportunity to present her case.
{23} The third assignment of error is overruled.
IV.
{24} In her fourth assignment of error, appellant argues the court abused its
discretion in not granting the continuance. Appellant failed to raise this argument by
bringing it to the trial court’s attention in her objections. Accordingly, appellant has not
preserved this matter for appeal. Civ. R. 53(E)(3)(d).
{25} The fourth assignment of error is overruled.
{26} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, of Delaware County, Ohio is affirmed in part, and the
finding of contempt is vacated.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0314
[Cite as Solove v. Solove, 2012-Ohio-1335.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JEROME G. SOLOVE :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ALICE M. SOLOVE :
:
:
Defendant-Appellant : CASE NO. 2011-CAF-08-0070
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Domestic Relations Division, of Delaware County, Ohio is
affirmed in part, and the finding of contempt is vacated. Costs to be split between the
parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER