Robinette v. Bryant , 2016 Ohio 5956 ( 2016 )

[Cite as Robinette v. Bryant, 2016-Ohio-5956.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
MICHAEL DAVID ROBINETTE, : Case No. 16CA21
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
TAMMY ANNETTE BRYANT, :
RELEASED 09/19/2016
Defendant-Appellant. :
APPEARANCES:
Tammy Annette Bryant, Fort Mitchell, Kentucky, pro se appellant.
J. Roger Smith, II, Law Offices of J. Roger Smith II, Huntington, West Virginia, for
appellee.
______________________________________________________________________
Harsha, J.
{¶1} Tammy Annette Bryant appeals from an order that: (1) found her in
contempt for failure to comply with the trial court’s prior order proscribing terms and
conditions on the parties’ communications with each other, but not sanctioning her for
the contempt; (2) found her not in contempt for failing to have paid attorney fees for
Michael David Robinette’s former attorney, but ordered her to pay them within 90 days;
(3) found her not in contempt for failing or refusing to submit to a previously ordered
forensic parenting evaluation, but ordered her to obtain a new evaluation; (4) deferred
ruling on Robinette’s motion for attorney fees for his current attorney; (5) denied
Robinette’s motion to suspend Bryant’s visitation, but placed restrictions on Bryant’s
rights to obtain certain records; and (6) ordered each party to pay 50% of the guardian
ad litem (“GAL”) fees upon submission of the GAL’s invoice.
Lawrence App. No. 16CA21 2
{¶2} Because the trial court’s order did not meet the requirements of both R.C.
2505.02 and Civ.R. 54(B), it was not final and appealable. Because we lack jurisdiction
to address the merits, we dismiss the appeal.
I. FACTS
{¶3} This is the fourth appeal involving disputes between the parties over
parental rights for their minor daughter. As we have unfortunately noted in other
protracted matters, this case has a long and tortured history beginning in 2010. Thus, in
the interests of readability and sanity, we jump straight to the facts that form the crux of
the current dispute.
{¶4} In October 2015, Robinette filed motions to find Bryant in contempt, for
attorney fees, and to suspend Bryant’s visitation with the parties’ daughter. In his
contempt motion Robinette requested that Bryant be held in contempt for: (1) her
failure to pay court ordered attorney fees; (2) her failure to comply with the court order
that she use the Our Family Wizard website to communicate with Robinette; (3) her
failure to submit to a forensic parenting evaluation; and (4) her conduct in driving around
Robinette’s residence after her visitation with the child had ended. In his motion for
attorney fees Robinette requested an award of attorney fees for his current counsel
based on Bryant’s “history” of being a “vexatious litigant.” In his motion to suspend
visitation Robinette asked the court to suspend Bryant’s twice-monthly, hour-long
visitation with the parties’ daughter at McDonald’s because, among other reasons,
Bryant had sent improper and false communications to their daughter’s school that
could potentially jeopardize her ability to stay there.
Lawrence App. No. 16CA21 3
{¶5} After a hearing on Robinette’s motions the magistrate issued a decision.
In response to Bryant’s objections, the trial court entered the following order: (1) Bryant
was not in contempt of the court’s August 4, 2014 order to pay Robinette’s reasonable
costs and attorney fees because she had not been specifically advised how much or
when she was to pay the fees. But after finding the amount reasonable and Bryant’s
concession that she had the ability to pay, the court ordered that within 90 days Bryant
pay $4,305 in attorney fees that Robinette testified he had paid to his former counsel;
(2) Bryant was in contempt of the court’s prior order that the parties use the Our Family
Wizard website to communicate with each other regarding their child, and Bryant could
purge herself of the contempt “by signing up for, paying for and utilizing the ‘Our Family
Wizard’ website”; (3) Bryant was not in contempt of any prior court order by sometimes
driving around Robinette’s residence in Huntington, West Virginia after the end of her
scheduled visitation time and the court did not have jurisdiction to prohibit Bryant from
driving around Robinette’s residence in West Virginia; and (4) Bryant was not in
contempt of the court’s prior order that she submit herself to a forensic parenting
evaluation because there may have been some confusion about whether she or the
GAL was required to schedule the evaluation. But now that the GAL had set up an
evaluation and given an informational packet to Bryant, the court ordered Bryant to have
a forensic psychological evaluation, which must specifically include a parenting fitness
evaluation component.
{¶6} Addressing Robinette’s motion for attorney fees for his current attorney,
the court deferred the matter “pending counsel’s submission to the Court of any
authority he may find that the Court may Order payment of the same.”
Lawrence App. No. 16CA21 4
{¶7} On Robinette’s motion to suspend Bryant’s visitation with their daughter,
the trial court found that Bryant had sent improper and false communications to their
daughter’s school and that her conduct in doing so will potentially jeopardize the child’s
ability to stay at the grade school. The court ordered that Bryant’s rights to educational
and medical records from providers be “retracted,” but that Robinette must provide
educational and medical records and information to Bryant through the Our Family
Wizard website. Nevertheless, the trial court determined that although it was “very
much concerned” by Bryant’s conduct, it was “unwilling to reduce or suspend” Bryant’s
existing limited visitation time. The court further ordered that each party pay half of the
GAL fees incurred in the case upon submission of the GAL’s invoice to the court for his
time spent on the case on behalf of the child.
{¶8} Although the trial court stated that its decision on Robinette’s motions
constituted a final appealable order, the court did not make an express determination
that there was no just reason for delay under Civ.R. 54(B).
{¶9} This pro se appeal by Bryant followed.
III. ASSIGNMENTS OF ERROR
{¶10} Bryant assigns the following errors for our review:
1. THE JUDGE ERRED IN STATING THAT “…THE COURT FINDS THE
DEFENDANT HAS NOT BEEN SPECIFICALLY ADVISED HOW
MUCH OR WHEN SHE WAS TO PAY SAID ATTORNEY FEES TO
THE PLAINTIFF…WHICH THE DEFENDANT INDICATED ON THE
RECORD SHE HAD THE ABILITY TO SO DO.”
2. THE JUDGE ERRED WHEN STATING “…THAT THE DEFENDANT
HAS WILLFULLY AND INTENTIONALLY IGNORED THE PRIOR
ORDER(S) OF THE COURT THAT THE PARTIES UTILIZE THE
“OUR FAMILY WIZARD” WEBSITE…THE DEFENDANT CONTINUES
TO IGNORE THIS BASIC ORDER OF THE COURT AND INSTEAD
CONTINUES TO SEND INAPPROPRIATE, THERATENING AND/OR
Lawrence App. No. 16CA21 5
HARASSING TEXT MESSAGE AND E-MAILS DIRECTLY TO THE
PLAINTIFF…”
3. THE JUDGE ERRED IN STATING THAT “BASED UPON THE
ALLEGATION OF THE PLAINTIFF AND THE TESTIMONY OF THE
PLAINTIFF, THE DEFENDANT DOES SOMETIMES DRIVE AROUND
THE PLAINTIFF’S RESIDENCE IN HUNTINGTON, WEST VIRGINIA
AT THE END OF HER SCHEDULED VISITATION TIME…”
4. THE JUDGE ERRED IN STATING THAT “…THE DEFENDANT HAS
FAILED OR OTHERWISE REFUSED TO SUBMIT HERSELF TO A
FORENSIC PARENTING EVALUATION AS PREVIOUSLY ORDERED
BY THE COURT.”
5. THE JUDGE ERRED WHEN HE STATED THAT “THE COURT FINDS
IN ITS REVIEW OF THE COURT FILE AND THE TESTIMONY OF
THE DEFENDANT THAT THERE MAY BE SOME CONFUSION AS
TO WHETHER THE DEFENDANT OR THE G.A.L. WAS TO
SCHEDULE SAID EVALUATION FOR THE DEFENDANT.”
6. THE JUDGE ERRED IN NOT DENYING THE PLAINTIFF
ADDITIONAL ATTORNEY FEES.
7. THE JUDGE ERRORED IN REMOVING THE RIGHTS OF THE
DEFENDANT’S ACCESS TO THE MINOR CHILD’S EDUCATIONAL
AND MEDICAL RECRDS.
8. THE JUDGE ERRORED IN STATING “…THE COURT DOES
FURTHER ORDER EACH PARTY TO PAY 50% OF THE G.A.L.
FEES IN THE CASE UPON SUBMISSION OF MR. PAYNE’S
INVOICE TO THE COURT FOR HIS TIME SPENT ON THIS CASE
ON BEHALF OF [THE CHILD] WITH COPIES FORWARDED TO
EACH PARTY.”
III. LAW AND ANALYSIS
A. Jurisdiction: General Considerations
{¶11} Before addressing the merits of Bryant’s assignments of error, we must
determine whether we have jurisdiction to entertain it. “ ‘An appellate court can review
only final orders, and without a final order, an appellate court has no jurisdiction.’ ”
State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 28, quoting
Lawrence App. No. 16CA21 6
Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St .3d 23,
2013–Ohio–2410, 997 N.E.2d 490, ¶ 10. An order of a court is a final appealable order
only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989),
syllabus; Pinkerton v. Salyers, 4th Dist. Ross No. 13CA3388, 2015-Ohio-377, ¶ 20.
With these standards in mind, we turn to the specific orders she has appealed.
B. Contempt Motion
{¶12} In order for there to be a final appealable order in contempt proceedings,
there must generally be both a finding of contempt and the imposition of a sanction.
See generally Purdy v. Purdy, 4th Dist. Scioto No. 12CA3490, 2013-Ohio-280, ¶ 10;
Metcalf v. Kilzer, 2014-Ohio-4713, 22 N.E.3d 198, ¶ 3 (4th Dist.); Yonkings v.
Wilikinson, 86 Ohio St.3d 225, 229, 714 N.E.2d 394 (1999), citing Chain Bike Corp. v.
Spoke 'N Wheel, Inc., 64 Ohio App.2d 62, 64, 410 N.E.2d 802 (8th Dist. 1979)
(“Appellant also argues that the case should be dismissed because a ruling on a
contempt motion is not a final appealable order unless there is a finding of contempt
and a sanction or penalty has been imposed”).1
{¶13} However, a contempt order finding a party in contempt and imposing a
sentence conditioned on the failure to purge is a final appealable order. Docks Venture,
1Because R.C. 2705.09 specifies that “[t]he judgment and orders of a court * * * made in cases of
contempt may be reviewed on appeal,” it arguably provides for an immediate appeal to which Civ.R.
54(B) is inapplicable as long as the finding of contempt is paired with the imposition of a sanction. See,
e.g., Carow v. Girton, 4th Dist. Athens No. 13CA13, 2014-Ohio-570, ¶ 24-25 (Harsha, J., concurring);
compare Mynes v. Brooks, 124 Ohio St.3d 13, 2009-Ohio-5946, 918 N.E.2d 511, syllabus (“R.C.
2711.02(C) permits a party to appeal a trial court order that grants or denies a stay of trial pending
arbitration, even when the order makes no determination pursuant to Civ.R. 54(B)”).
Lawrence App. No. 16CA21 7
L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d
1035, ¶ 23.
{¶14} But there is no right of appeal from the dismissal or denial of a contempt
motion when the party taking the appeal is not prejudiced by the dismissal or the denial.
See State ex rel. Hillman v. Holbrook, 127 Ohio St.3d 1529, 2011-Ohio-376, 940 N.E.2d
983, citing Denovchek v. Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 520 N.E.2d
1362 (1988), syllabus; Briggs v. GLA Water Mgt., 6th Dist. Wood Nos. WD-12-062 and
WD-12-063, 2014-Ohio-2214, ¶ 9.
{¶15} In Bryant’s first five assignments of error she contests various parts of the
trial court’s rulings on Robinette’s contempt motion. But the trial court did not find
Bryant to be in contempt of any prior order for her failure to pay attorney fees, driving
near Robinette’s West Virginia residence after visitation with their daughter had
concluded, or failing to submit herself to a forensic parenting evaluation. And although
it did find Bryant to be in contempt of its order that the parties communicate with each
other regarding their child through the Our Family Wizard website, the trial court did not
impose any sanction on her, but instead merely stated that she could purge the
contempt finding by signing up, paying for, and using the website for future
communications between the parties concerning their daughter. The orders did not
result in any additional prejudice to Bryant beyond what had been previously ordered by
the trial court.
{¶16} Therefore, the trial court’s contempt rulings did not constitute final
appealable orders because they did not include both a finding of contempt and a
Lawrence App. No. 16CA21 8
sanction that prejudiced Bryant. We lack jurisdiction to address these assignments of
error.
C. Motion for Attorney Fees
{¶17} Robinette also filed a motion requesting attorney fees for his current
counsel. Bryant’s sixth assignment of error contests the trial court’s failure to deny
Robinette’s motion for additional attorney fees.
{¶18} The trial court neither granted nor denied Robinette’s motion. Instead, it
deferred the matter for later resolution pending Robinette’s provision of supporting
authority for the award. By not deciding the merits of the motion, the trial court failed to
enter a final appealable order as defined by R.C. 2505.02. See, e.g., Fagan v. Boggs,
4th Dist. Washington No. 08CA45, 2009-Ohio-6601, ¶ 11 (order that fails to resolve
attorney-fee claim raised by a party is not a final appealable order).
{¶19} We thus lack jurisdiction to address Robinette’s challenge to the court’s
order deferring its ruling on Robinette’s motion for additional attorney fees.
D. Motion to Suspend Visitation
{¶20} Bryant’s seventh and eighth assignments of error contest the trial court’s
ruling concerning Robinette’s motion to suspend Bryant’s visitation with their daughter.
But the trial court denied the motion and retained the previously ordered visitation for
Bryant. Bryant was not prejudiced by the denial of the motion to suspend her visitation
with their daughter.
{¶21} A parentage proceeding is a special proceeding for purposes of the final-
order analysis in R.C. 2505.02(B)(2), see, e.g., Sexton v. Conley, 4th Dist. Scioto No.
99 CA 2655, 2000 WL 1137463, *2 (Aug. 7, 2000) (a parentage action is a “special
Lawrence App. No. 16CA21 9
proceeding” for purposes of R.C. 2505.02). However, it is questionable whether the trial
court’s decision to “retract”2 Bryant’s rights to educational and medical records from
providers impacted a substantial right because the court simultaneously imposed a duty
on Robinette to provide educational and medical records and information concerning
their daughter to Bryant through the Our Family Wizard website. See R.C.
2505.02(A)(1), which defines “[s]ubstantial right” as “a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect.”
{¶22} Moreover, although a court order that the parties pay guardian ad litem
fees could constitute a final order under R.C. 2505.02, see Taphorn v. Caudill-Taphorn,
5th Dist. Knox No. 13CA18, 2014-Ohio-587, ¶ 20, there still must be compliance with
Civ.R. 54(B) in order to make the order appealable. See Bayus v. Bayus, 11th Dist.
Trumbull No. 2011-T-0062, 2012-Ohio-1462, ¶ 14 (applying Civ.R. 54(B) to a judgment
ordering parties to pay guardian ad litem fees in a legal separation case, but
determining it to be inapplicable because both post-decree motions had been withdrawn
so no other claims remained pending when the trial court entered its judgment); see
also Gen. Acc. Ins. Co. v. Ins. Co. of North America, 44 Ohio St.3d 17, 21-23, 540
N.E.2d 266 (1989) (applying Civ.R. 54(B) in a case in which the order was final under
R.C. 2505.02 because it affected a substantial right made in a special proceeding).
{¶23} In this case, even assuming that the trial court’s rulings concerning
Robinette’s motion to suspend visitation constituted a final order because they impacted
2Black’s Law Dictionary 1318 (7 Ed. 1999) defines “retraction” to mean: “[t]he act of taking or drawing
back.” However, we are not sure what the trial court intended by “retracted,” i.e. suspended, or
alternatively, terminated.
Lawrence App. No. 16CA21 10
Bryant’s substantial rights in a special proceeding, they were not appealable. The
claims raised in Robinette’s other pending motions, including his motion requesting
attorney fees, were not completely resolved and the trial court did not make an express
determination that there is no just reason for delay in accordance with Civ.R. 54(B).
Therefore, we lack jurisdiction to address the assignments of error contesting these
rulings.
IV. CONCLUSION
{¶24} Because the trial court’s order did not constitute a final appealable order
since the requirements of R.C. 2505.02 and Civ.R. 54(B) were not met, we lack
jurisdiction over Bryant’s appeal and dismiss it.
APPEAL DISMISSED.
Lawrence App. No. 16CA21 11
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.