Brown v. Brown , 2019 Ohio 3619 ( 2019 )

[Cite as Brown v. Brown, 2019-Ohio-3619.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
LEAH KATE BROWN, :
Appellee, : CASE NO. CA2019-01-007
: OPINION
- vs - 9/9/2019
:
CLINTON BROWN, :
Appellant. :
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2015DRC00545
Alexander, Wagner & Kinman, Christopher M. Alexander, 423 Reading Road, Mason, Ohio
45040, for appellee
Allen Law Firm, LLC, Mitchell W. Allen, 8469 Mason-Montgomery Road, Suite 2, Mason,
Ohio 45040, for appellant
S. POWELL, P.J.
{¶ 1} Appellant, Clinton Brown ("Father"), appeals the decision of the Clermont
County Court of Common Pleas, Domestic Relations Division, finding appellee, Leah Kate
Brown ("Mother"), "in contempt as a second offender" after she was found in civil contempt
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for violating the parties' shared parenting agreement. Father also appeals the domestic
relations court's decision ordering Mother to pay him $500 in attorney fees stemming from
that civil contempt finding. For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} Mother and Father were divorced in the summer of 2015. Following their
divorce, Mother and Father were parties to a shared parenting agreement regarding their
two children, twins born on September 23, 2009. Approximately two years after their
divorce, on November 6, 2017, December 11, 2017, and December 21, 2017, Father filed
three separate motions for contempt against Mother. The three motions alleged that
Mother had committed nine violations of the parties' shared parenting agreement; the
November 6, 2017 motion alleging five violations, the December 11, 2017 motion alleging
one violation, and the December 21, 2017 motion alleging three violations. Although
brought in three separate motions, Father numbered the alleged violations consecutively
one through nine. The nine violations alleged by Father in those three motions were as
follows.
November 6, 2017 Motion for Contempt
(1) Violation of Article I, Section K, due to Mother discussing the
case with the children;
(2) Violation of Article I, Section I, due to Mother's failure to give
Father his right of first refusal for parenting time on July 24,
2017;
(3) Violation of Article V, Section B, for Mother enrolling their
daughter in an activity that impacted Father's parenting time;
(4) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on October 21, 2017 rather
than allowing Father to exercise his parenting time; and
(5) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on October 28, 2017 rather
than allowing Father to exercise his parenting time.
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December 11, 2017 Motion for Contempt
(6) Violation of Article 1, Section C, for Mother taking their
daughter to a cheerleading event on November 18, 2017 rather
than allowing Father to exercise his parenting time.
December 21, 2017 Motion for Contempt
(7) Violation of Article I, Section I, due to Mother's failure to give
Father his right of first refusal for parenting time on December
8, 2017;
(8) Violation of Article I, Section K, due to Mother again
discussing the case with the children; and
(9) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on December 16, 2017 rather
than allowing Father to exercise his parenting time.
{¶ 3} On January 23, 2018, a single hearing on Father's three motions for contempt
was held before a domestic relations court magistrate. Shortly thereafter, on March 8, 2018,
the magistrate issued a decision finding Mother in contempt for committing seven of the
nine violations Father alleged in his three motions; violations (1) thru (5) set forth in Father's
November 6, 2017 motion, violation (6) set forth in Father's December 11, 2017 motion,
and violation (9) set forth in Father's December 21, 2017 motion. Due to these seven
violations, the magistrate issued a purge order that required Mother, as a "first offender," to
pay a $100 fine and provide Father with makeup parenting time. The magistrate also
ordered Mother to reimburse Father $495 in court costs ($165 for each of the three motions
for contempt he filed) and to pay Father $500 in attorney fees. The magistrate reached this
decision by rejecting Father's claim that he was actually entitled to $1,500 in attorney fees,
i.e., $500 for each of the three motions for contempt he filed and from which Mother was
sanctioned.
{¶ 4} In so holding, the magistrate noted that Father's attorney "did not testify with
respect to his attorney fees." This, as the magistrate found, was a necessary prerequisite
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for a party seeking attorney fees in excess of the presumptively "reasonable" $500 fee set
forth in the domestic relations court's local rules; specifically, Loc.R. DR 45(B). Pursuant to
that rule, "[u]nless otherwise determined by the Court and absent formal evidence, $500 is
a reasonable attorney fee." What constitutes "formal evidence" is set forth in the domestic
relations court's Loc.R. DR 45(C), which provides that "[i]f a party is seeking an award for
attorney fees in excess of $500," the attorney must present the following evidence:
(1) An itemized statement describing the services rendered, the
time for such services, the requested hourly rate, and necessary
expenses and cost for litigation;
(2) Testimony as to whether the case was complicated by any
factor which necessitated extra time being spent on the case;
(3) Testimony regarding the attorney's years in practice and
experience in domestic relations cases; and
(4) Evidence of the defending party's ability to pay, and of the
moving party's need for an award of attorney fees.
{¶ 5} On March 8, 2018, Father filed objections to the magistrate's decision. As
part of his objections, Father argued the magistrate erred by finding Mother was just a "first
offender" despite the magistrate determining Mother had committed seven violations of the
parties' shared parenting agreement. Father also argued the magistrate erred by ordering
Mother to pay him only $500 in attorney fees.
{¶ 6} On August 21, 2018, the domestic relations court issued a decision overruling
Father's objections. In so holding, the domestic relations court found an award of $500 in
attorney fees was a "reasonable fee in this case." This was because, according to the
domestic relations court, "[i]t is for one proceeding not for each individual motion or violation
addressed in that proceeding." The domestic relations court also found that an award of
$500 in attorney fees was proper since Father had "failed to present any formal evidence
that he incurred reasonable attorney fees in excess of $500."
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{¶ 7} On August 31, 2018, Father appealed the domestic relations court's decision.
Similar to the two objections outlined above, Father challenged the domestic relations
court's decision finding Mother was just a "first offender" despite the magistrate determining
Mother had committed seven violations of the parties' shared parenting agreement. Father
also challenged the domestic relations court's decision ordering Mother to pay him only
$500 in attorney fees. Finding no merit to any of his arguments raised therein, this court
affirmed the domestic relations court's decision in Brown v. Brown, 12th Dist. Clermont No.
CA2018-08-064, 2019-Ohio-2164 ("Brown I").
{¶ 8} Specifically, as this court stated when overruling Father's argument
challenging the domestic relations court's "first offender" finding:
Father argues that because Mother was found guilty of over
three violations of the shared parenting agreement she should
have been found to be a third-time offender. This court does
not find that the domestic relations court abused its discretion in
finding Mother to be a first-time offender because there was no
evidence presented indicating that Mother had been found guilty
of any contempt offenses prior to the hearing.
Id. at ¶ 68.
{¶ 9} Thereafter, when overruling Father's argument challenging the domestic
relations court's award of attorney fees, this court stated:
Father further argues that the court should have awarded him
$500 in attorney fees for each contempt motion filed. However,
Father failed to present any evidence concerning his attorney
fees and thus cannot demonstrate that the domestic relations
court abused its discretion in awarding him the presumptive
"reasonable" attorney fee.
Id. at ¶ 69.
{¶ 10} While Father's appeal in Brown I was pending, Father filed an additional nine
motions for contempt against Mother; three on April 4, 2018, one on May 1, 2018, four on
May 23, 2018, and one additional motion on June 8, 2018. Each of Father's nine motions
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alleged a single violation of the parties' shared parenting agreement. The nine violations
alleged by Father in those nine motions were as follows.
April 4, 2018 Motions for Contempt
(1) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on February 3 and 4, 2018
rather than allowing Father to exercise his parenting time;
(2) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on February 24 and 25, 2018
rather than allowing Father to exercise his parenting time; and
(3) Violation of Article 1, Section C, for Mother taking their
daughter to a cheerleading event on March 17 and 18, 2018
rather than allowing Father to exercise his parenting time.
May 1, 2018 Motion for Contempt
(1) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on April 7 and 8, 2018 rather
than allowing Father to exercise his parenting time.
May 23, 2018 Motions for Contempt
(1) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on May 3, 2018 rather than
allowing Father to exercise his parenting time;
(2) Violation of Article I, Section C, for Mother taking their
daughter to a cheerleading event on May 5 and 6, 2018 rather
than allowing Father to exercise his parenting time;
(3) Violation of Article V, Section B, for Mother enrolling their son
in an activity that impacted Father's parenting time; and
(4) Violation of Article V, Section B, for Mother enrolling their son
in another activity that impacted Father's parenting time.
June 8, 2018 Motion for Contempt
(1) Violation of Article I, Section A, and Article X, for Mother
interfering with Father's access to their children's school, and
thus Father's parenting time, as well as Mother interfering with
Father's access to their children's records.
{¶ 11} On August 24, 2018, the magistrate held a single hearing on Father's motions.
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Father did not object to the magistrate holding a single hearing to address each of his nine
motions. Rather, as part of the magistrate's scheduling order, the magistrate specifically
stated that "[c]ounsel further agreed that it would be easier to try all the Motions at one
time." Both Mother and Father appeared at this hearing represented by counsel. Although
a transcript of this hearing was not made a part of the record, the record nevertheless
reveals that both Mother and Father also testified at this hearing.
{¶ 12} On October 16, 2018, the magistrate issued a decision sanctioning Mother on
four of the nine alleged violations set forth in Father's nine motions for contempt; violations
(2) and (3) alleged in Father's four motions filed on April 4, 2018, as well as the single
violations alleged in Father's motions filed on May 1, 2018 and June 8, 2018. Due to these
four violations, the magistrate found Mother "in contempt as a second offender" and
sentenced Mother to a 60-day jail term. Mother, however, was notified that she could purge
the contempt by providing Father with makeup parenting time and by writing an apology
letter to their daughter's soccer facility. The magistrate also ordered Mother to reimburse
Father $660 in court costs "representing court costs for the four Motions for which the Court
is making a finding of contempt ($165 each)," as well as pay Father $500 in attorney fees.
The magistrate reached this decision by again rejecting Father's claim that he was actually
entitled to $2,000 in attorney fees, i.e., $500 for each of the four motions for contempt he
filed and from which Mother was sanctioned.
{¶ 13} On October 29, 2018, Father filed objections to the magistrate's decision.
Father's objections contained the same basic arguments Father advanced in Brown I.
Specifically, Father argued that the magistrate erred by (1) finding Mother was just a
"second offender" despite the magistrate sanctioning Mother on four violations of the
parties' shared parenting agreement and by (2) ordering Mother to pay him only $500 in
attorney fees.
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{¶ 14} On December 12, 2018, the domestic relations court issued a decision
overruling Father's objections. In so holding, the domestic relations court determined the
magistrate did not err by finding Mother was just a "second offender." This was because,
according to the domestic relations court, "[b]y combining the findings of contempt in one
finding of contempt as a second offender serves both the purpose of the proceedings and
the purpose of sanctions." The domestic relations court also determined the magistrate did
not err by ordering Mother to pay Father only $500 in attorney fees. In reaching this
decision, the domestic relations court stated:
[Father's] attorney failed to present any formal evidence as to
this motion for attorney fees. This court determined that $500
is a reasonable attorney fee in this case. The award of attorney
fees is not a sanction but a reimbursement for actual time
expended as determined reasonable by the court absent formal
evidence.
Appeal
{¶ 15} Father now appeals the domestic relations court's decision, raising a single
assignment of error for review. In his assignment of error, Father argues the domestic
relations court erred by finding Mother was just a "second offender" despite the domestic
relations court sanctioning Mother for committing four violations of the parties' shared
parenting agreement. Father also argues the domestic relations court erred by ordering
Mother to pay him only $500 in attorney fees. We find no merit to either of Father's claims.
Domestic Relations Court's "Second Offender" Finding
{¶ 16} Just as it had done in Brown I, the domestic relations court found Mother in
civil contempt for her failure to comply with the parties' shared parenting agreement. A
finding of civil contempt is proper where the sanctions imposed by the domestic relations
court are primarily for reasons benefiting the complainant and are remedial and coercive in
nature. Ganaway v. Ganaway, 12th Dist. Warren No. CA2016-05-039, 2017-Ohio-1009, ¶
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24. A domestic relations court's finding of civil contempt will not be disturbed on appeal
absent an abuse of discretion. Dimitriou v. Dimitriou, 12th Dist. Warren No. CA2011-11-
119, 2012-Ohio-4773, ¶ 13. This includes the imposition of penalties. Mackowiak v.
Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-3013, ¶ 45, discretionary
appeal not allowed, 130 Ohio St.3d 1437, 2011-Ohio-5883, citing Fidler v. Fidler, 10th Dist.
Franklin No. 08AP-284, 2008-Ohio-4688, ¶ 12.
{¶ 17} R.C. 2705.03 "governs contempt hearings and provides that the accused
must be given the opportunity to be heard." Pulled From The Pits Rescue & Sanctuary v.
Dabernig, 9th Dist. Wayne No. 15AP0061, 2016-Ohio-7255, ¶ 9. To that end, pursuant to
R.C. 2705.05(A), in all contempt proceedings, "the court shall conduct a hearing." At that
contempt hearing, R.C. 2705.05(A) mandates the court to "investigate the charge and hear
any answer or testimony that the accused makes or offers and shall determine whether the
accused is guilty of the contempt charge." Thereafter, if the accused is found in contempt,
"the court may impose" any of the penalties set forth in R.C. 2705.05(A)(1) thru (3). Those
penalties are:
(1) For a first offense, a fine of not more than two hundred fifty
dollars, a definite term of imprisonment of not more than thirty
days in jail, or both;
(2) For a second offense, a fine of not more than five hundred
dollars, a definite term of imprisonment of not more than sixty
days in jail, or both;
(3) For a third or subsequent offense, a fine of not more than
one thousand dollars, a definite term of imprisonment of not
more than ninety days in jail, or both.
{¶ 18} Although there can be no dispute that Mother had been found in contempt
previously, see Brown I, the domestic relations court did not abuse its discretion by finding
Mother was just a "second offender" rather than a third offender, fourth offender, and fifth
offender as Father suggests. This is true despite the fact that the domestic relations court
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sanctioned Mother for committing four separate violations of the parties' shared parenting
agreement.
{¶ 19} By arguing Mother should have been considered a higher tiered offender for
each violation, Father is misapplying the Ohio Supreme Court's holding in Pugh v. Pugh,
15 Ohio St.3d 136 (1984), the Tenth District Court of Appeals' holding in Bowers v. Bowers,
10th Dist. Franklin No. 90AP-130, 1990 Ohio App. LEXIS 5223 (Nov. 29, 1990), and this
court's holding in Mackowiak, 2011-Ohio-3013. Specifically, as this court held in Mackowiak
when discussing Pugh, "when two or more violations are brought in a single contempt action
and during one hearing, the person found guilty of contempt cannot be punished for each
violation." Mackowiak at ¶ 57, citing Pugh at 142-143; and Bowers.
{¶ 20} Father argues that because he filed nine separate motions for contempt each
alleging a single violation of the parties' shared parenting agreement that his nine motions
were not "brought in a single contempt action during one hearing." This, according to
Father, required the domestic relations court to designate Mother a higher tiered offender
for each of Mother's four violations. However, contrary to Father's claim, incentivizing a
complainant to file separate motions for contempt for each alleged violation of the parties'
shared parenting agreement was not the Ohio Supreme Court's intent behind its holding in
Pugh, the Tenth District's holding in Bowers, or this court's holding in Mackowiak. This
court should not, and will not, permit Father to misapply the principles outlined in Pugh,
Bowers, and Mackowiak in order to reach his desired result; namely, punishing Mother to
the harshest extent possible.
{¶ 21} This is the same basic holding advanced by this court in Brown I. Again, as
part of Father's prior appeal, Father argued that "because Mother was found guilty of over
three violations of the shared parenting agreement she should have been found to be a
third-time offender." Id., 2019-Ohio-2164 at ¶ 68. This court disagreed and found the
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domestic relations court did not err "in finding Mother to be a first-time offender because
there was no evidence presented indicating that Mother had been found guilty of any
contempt offenses prior to the hearing." Id. But, had this court held the opposite, that
holding would have required this court to find Mother was, at the very least, a "third
offender." This is because, as noted above, the domestic relations court found Mother had
violated a portion of each of Father's three motions for contempt.
{¶ 22} Because Mother was found to have violated a portion of each of Father's three
motions, our holding in Brown I would not have been dependent on the fact Mother had not
been found in contempt previously. Mother would have instead been found to be a "first
offender" for violating at least one of the alleged violations set forth in Father's November
6, 2017 motion, a "second offender" for committing the alleged violation set forth in Father's
December 11, 2017 motion, and a "third offender" for committing one of the alleged
violations set forth in Father's December 21, 2017 motion. This court rejected that argument
in Brown I and similarly rejects that argument here.
{¶ 23} In reaching this decision, we find it necessary to discuss the underlying facts
set forth by the Ohio Supreme Court in Pugh and the Tenth District in Bowers, the two
decisions this court relied on in Mackowiak to hold that "when two or more violations are
brought in a single contempt action and during one hearing, the person found guilty of
contempt cannot be punished for each violation." Mackowiak, 2011-Ohio-3013 at ¶ 57,
citing Pugh, 15 Ohio St.3d at 142-143; and Bowers, 1990 Ohio App. LEXIS 5223.
{¶ 24} In Pugh, appellee filed two motions for contempt against the appellant; one
on March 15, 1983 and the other on April 15, 1983. In her first motion, appellee alleged
that appellant had violated the terms of their separation agreement by failing to timely pay
a lump sum property settlement. Id. at 137. Similarly, in her second motion, appellee
alleged that appellant had violated the terms of their separation agreement since "the title
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to the Jaguar had not been transferred, that the snowmobile had not been transferred, and
that the appellant was behind in his periodic payments and child support." Id.
{¶ 25} On May 5, 1983, the domestic relations court held a single hearing on
appellee's two motions for contempt. During this hearing, evidence was presented
indicating appellant had committed both violations alleged in each of appellee's two
motions. Upon finding appellant in contempt on each of the two violations set forth in
appellee's two motions for contempt, the domestic relations court ordered appellant to serve
two consecutive ten-day jail terms; one ten-day jail term for failing to timely pay the lump
sum property settlement and another ten-day jail term for "for not transferring the title to the
Jaguar, for willfully failing to pay his child support obligation, and for willfully failing to make
his periodic payments." Id. at 138.
{¶ 26} Appellant appealed the domestic relations court's decision. As part of his
appeal, appellant argued that it was improper for the domestic relations court to order him
to serve two consecutive ten-day jail terms "for violating two different terms of the separation
agreement" when "both violations were brought out in one action for contempt." (Emphasis
added.) Id. at 142. Relying on R.C. 2705.05, the Ohio Supreme Court agreed and found
that even though appellee had filed two motions for contempt, "appellant may only be
imprisoned for a maximum of ten days if he is found guilty of contempt. He cannot be
imprisoned for each violation which composes the contempt charge." Id. at 143.1
{¶ 27} Similar to the facts in Pugh, in Bowers, appellee also filed two motions for
contempt against the appellant; one on October 10, 1989 and one on November 2, 1989.
Bowers, 1990 Ohio App. LEXIS 5223 at *2. The first motion alleged that appellant had
1. We note that although appellant could not be imprisoned for each violation in Pugh, the Ohio Supreme
Court nevertheless found its holding "[did] not limit the number of contempt actions which may be brought."
Id., 15 Ohio St.3d at 143. That is to say "[i]f appellant refuses to obey the orders of the court after serving his
sentence, additional contempt proceedings can be initiated which list the appellant's violations." Id.
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violated the parties' divorce decree by "refusing to comply with the visitation order and for
refusing to allow telephone contact with his daughter." Id. On the other hand, the second
motion alleged that appellant had violated the parties' divorce decree by failing "to divide
the funds on deposit at BancOhio National Bank pursuant to the terms of the decree of
divorce." Id.
{¶ 28} On December 18, 1989, the domestic relations court held a single hearing on
appellee's two motions for contempt. Id. Following this hearing, the domestic relations
court found appellant in contempt for denying appellee visitation time with their daughter.
Id. The domestic relations court also found appellant in contempt for "her willful failure and
refusal to divide the proceeds of the BancOhio account[.]" Id. Upon finding appellant in
contempt on each of the two violations set forth in appellee's two motions for contempt, the
domestic relations court ordered appellant to pay a $1,000 fine; one $500 fine for denying
appellee visitation time with their daughter and another $500 fine for failing to divide the
proceeds of the BancOhio account. Id.
{¶ 29} Appellant appealed the domestic relations court's decision. As part of her
appeal, appellant argued the domestic relations court "erred in imposing more than one fine
on her, and in imposing an excessive fine on her." Id. at *8. Just like in Pugh, the Tenth
District agreed and held that even though appellee had filed two separate motions for
contempt that "the two violations were brought in a single action and during one hearing."
(Emphasis added.) Id. Therefore, because the two motions for contempt were brought in
a "single action and during one hearing," the Tenth District found that once the appellant
was found in contempt that she could not be fined for "each violation which composes the
contempt charges." Id. Accordingly, citing to the Ohio Supreme Court's decision in Pugh,
the Tenth District held "the trial court erred in imposing a fine on appellant on each of the
contempt charges and in fining appellant more than the maximum amount permitted by
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statute." Id., 1990 Ohio App. LEXIS 5223 at *8.
{¶ 30} As noted above, Father argues that because he filed nine separate motions
for contempt each alleging a single violation of the parties' shared parenting agreement that
the nine motions were not "brought in a single contempt action and during one hearing."
However, based on the Ohio Supreme Court's decision in Pugh and the Tenth District's
holding in Bowers, Father's understanding of what it means be "brought in a single contempt
action" is misplaced. Rather, in accordance with Pugh and Bowers, an action in contempt
may be classified as a single contempt action even when the alleged violations are brought
in two or more motions for contempt. This is true so long as each of those motions are
addressed during one contempt hearing.2 Therefore, contrary to Father's claim, the
holdings set forth in Pugh, Bowers, and Mackowiak applies only when allegations of
contempt are brought in a single contempt action and during one hearing not when the
allegations of contempt are brought in separate contempt motions and during one hearing.
{¶ 31} In reaching this decision, we note Father's references to the fact that he has
"no control" over the domestic relations court's docket and scheduling office. Therefore,
according to Father, he should not be penalized for the magistrate "set[ting] all the matters
for [a single hearing] on the same day, presumably as a matter of judicial economy."
However, as noted above, Father did not object to the magistrate holding a single hearing
to address his nine motions for contempt. Rather, as part of the magistrate's scheduling
order, the magistrate specifically stated that "[c]ounsel further agreed that it would be easier
to try all the Motions at one time." Because Father agreed that all nine of his motions should
be heard at a single hearing, Father invited any error that may have occurred and cannot
2. The facts in Pugh and Bowers are analogous to the facts and circumstances here, i.e., a domestic relations
court holding one hearing to address the appellees' two motions for contempt filed against the appellants.
The fact that Pugh and Bowers dealt with only two motions for contempt while this case deals with nine
separate motions is a difference without a distinction.
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now claim any resulting prejudice therefrom. See State ex rel. Bitter v. Missig, 72 Ohio
St.3d 249, 254 (1995) (a party is not "permitted to take advantage of an error which he
himself invited or induced the trial court to make").
{¶ 32} We also note Father's references to the generally well-established principle
that contempt proceedings must necessarily involve some form of punishment. See In re
J.M., 12th Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶ 47 ("punishment is
inherent in contempt"). However, although serving as a form of punishment, "[t]he penalties
imposed for civil contempt are designed to coerce compliance with a court order for the
benefit of the complainant." Castanias v. Castanias, 12th Dist. Warren No. CA2009-04-
036, 2009-Ohio-6171, ¶ 11. In other words, as the Ohio Supreme Court stated in Pugh,
sanctions imposed for civil contempt are used "'to enforce compliance with an order of the
court or to compensate for losses or damages sustained by reason of noncompliance.'" Id.,15 Ohio St.3d at 140, quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69
S.Ct. 497 (1949). A complainant filing successive motions for contempt each alleging a
single violation of a shared parenting agreement in hopes that the contemnor would be
punished more severely for each violation does not serve this purpose.
{¶ 33} For example, applying Father's argument set forth above, a complainant
would be rewarded for filing 14 separate motions for contempt after the contemnor
prohibited the complainant from exercising his or her parenting time over a consecutive two-
week period. This is because, according to Father's argument, the domestic relations court
would be required to find the contemnor in contempt as a "14th offender," thereby subjecting
the contemnor to the maximum penalties set forth in R.C. 2705.05(A)(3) for each of the 14
violations: a fine of not more than one thousand dollars, a definite term of imprisonment of
not more than 90 days in jail, or both. Or, in this example, a $14,000 fine and a definite
term of imprisonment of 1,260 days in jail.
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{¶ 34} This, also according to Father's argument, would require the domestic
relations court to order the contemnor to reimburse the complainant $2,310 in court costs
and pay the complainant $7,000 in attorney fees, i.e., $165 in court costs and $500 in
attorney fees for each of the 14 contempt motions upon which the complainant filed and for
which the contemnor was sanctioned. This would hold true even though it was likely only
the date had changed on 13 of those motions. While Father may disagree, we find such a
holding improper in that it would both (1) unduly penalize the contemnor to an extent not
contemplated by the General Assembly through the passage of R.C. 2705.05(A)(1) thru (3),
and (2) result a windfall to the complainant and the complainant's attorney through an award
of attorney fees above and beyond anything that could be considered reasonable. Again,
just as the domestic relations court found, "[t]he award of attorney fees is not a sanction but
a reimbursement for actual time expended as determined reasonable by the court absent
formal evidence." (Emphasis added.)
{¶ 35} The domestic relations court also found that "[b]y combining the findings of
contempt in one finding of contempt as a second offender serves both the purpose of the
proceedings and the purpose of sanctions." We agree. This is because, as noted above,
incentivizing a complainant to file separate motions for contempt for each alleged violation
was not the Ohio Supreme Court's intention by its holding in Pugh, the Tenth District's
holding in Bowers, or this court's holding in Mackowiak. Once more, rather than punishing
the contemnor to the harshest extent possible, the purpose of civil contempt is to "coerce
compliance with a court order for the benefit of the complainant." Castanias, 2009-Ohio-
6171 at ¶ 11. This can be achieved without placing an unnecessary burden on the domestic
relations court to process nearly identical, repetitive, and duplicitous motions for contempt
in hopes that the contemnor would be punished more severely as a higher tiered offender
for each alleged violation.
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{¶ 36} This court's holding is further supported by the discretionary nature of R.C.
2705.05(A). As noted above, that statute specifically provides that if the accused is found
guilty of contempt, "the court may impose" any of the penalties set forth in R.C.
2705.05(A)(1) thru (3). (Emphasis added.) Therefore, contrary to Father's claim, even if
the domestic relations court had designated Mother a higher tiered offender, the domestic
relations court was under no obligation to sanction Mother to any harsher punishment than
it did. This is because the statute at issue, R.C. 2705.05(A), contains the discretionary term
may rather than mandatory term shall. See State v. Recinos, 5th Dist. Richland No. 14CA9,
2014-Ohio-3021, ¶ 34 ("[t]he word 'shall' is usually interpreted to make the provision in
which it is contained mandatory" whereas "the use of the word 'may' is generally construed
to make the provision in which it is contained optional, permissive, or discretionary"), citing
Dorrian v. Scioto Conservancy District, 27 Ohio St. 2d 102, 107 (1971).
{¶ 37} The penalties that should be imposed upon the contemnor is left to the sound
discretion of the domestic relations court, not the complainant. Mackowiak, 2011-Ohio-
3013 at ¶ 45. The penalties imposed on Mother by the domestic relations court in this case
– sentencing Mother to a 60-day jail term that could be purged by Mother providing Father
with makeup parenting time and by writing an apology letter to their daughter's soccer
facility – was not an abuse of discretion. See, e.g., Kolenic v. Kolenic, 11th Dist. Geauga
No. 2017-G-0117, 2018-Ohio-1106, ¶ 34 (domestic relations court did not abuse its
discretion by imposing a sanction that was statutorily permissible). The penalties instead
served as both a punishment for Mother's past indiscretions and a tool to coerce Mother to
comply with the parties' shared parenting agreement going forward. Therefore, because
we find no abuse of discretion in the domestic relations court's decision, Father's argument
challenging the domestic relation court's decision finding Mother was just a "second
offender" lacks merit.
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Domestic Relations Court's Order of Attorney Fees
{¶ 38} Father also argues the domestic relations court erred by ordering Mother to
pay him only $500 in attorney fees. Father instead argues the domestic relations court
should have ordered Mother to pay him $2,000, i.e., $500 for each of the four motions for
contempt upon which he filed and for which Mother was sanctioned. However, just as the
domestic relations court found, Father failed to present any evidence concerning his
attorney fees at the contempt hearing. This was the same problem Father faced in Brown
I. Id., 2019-Ohio-2164 at ¶ 69. Therefore, because Father failed to present any evidence
concerning his attorney fees, Father cannot demonstrate that the domestic relations court
abused its discretion by awarding him the presumptively "reasonable" $500 fee set forth in
the domestic relations court's Loc.R. DR 45(B).3 Accordingly, because we find no error in
the domestic relations court's decision, Father's argument challenging the domestic
relations court's decision ordering Mother to pay him only $500 in attorney fees also lacks
merit.
Conclusion
{¶ 39} The domestic relations court did not err by finding Mother was a "second
offender" despite the domestic relations court finding Mother committed four violations of
the parties' shared parenting agreement. Such a holding was proper in light of the Ohio
Supreme Court's decision in Pugh, the Tenth District's decision in Bowers, and this court's
holding in Mackowiak. The domestic relations court also did not err by ordering Mother to
pay Father only $500 in attorney fees. This was because, as noted above, Father failed to
present any evidence concerning his attorney fees as required by the domestic relations
3. Although not argued by Father as part of his appellate brief, we note that this holding fully complies with
the requirements set forth in R.C. 3109.051(K), a statute that requires the domestic relations court to order
the contemnor to pay the complainant's "reasonable attorney fees" that "arose in relation to" the contemnor
failing to comply with the complainant's parenting time rights.
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Clermont CA2019-01-007
court's local rules when seeking fees in excess of the presumptively "reasonable" $500 fee.
Therefore, finding no merit to any of the arguments raised herein, Father's single
assignment of error lacks merit and is overruled.
{¶ 40} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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