Geary v. Geary

[Cite as Geary v. Geary, 2015-Ohio-259.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JANELLE GEARY : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
First Petitioner-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 14CAF050033
SHAWN GEARY :
:
Second Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No. 10 DS C 03
0136
JUDGMENT: Affirmed in part; Reversed and Remanded
in part
DATE OF JUDGMENT ENTRY: January 16, 2015
APPEARANCES:
For First Petitioner-Appellant For Second Petitioner-Appellee
LISA MEIER ROBERT OWENS
ANTHONY GRECO 46 North Sandusky St., Ste. 202
6810 Caine Road Delaware, OH 43015
Columbus, OH 43235
[Cite as Geary v. Geary, 2015-Ohio-259.]
Gwin, J.
{¶1} Appellant appeals the April 17, 2014 judgment entries of the Delaware
County Common Pleas Court, Domestic Relations Division.
Facts & Procedural History
{¶2} In May of 2010, appellant Janelle Geary and appellee Shawn Geary filed a
separation agreement, agreed judgment entry, and decree of dissolution that
established the responsibilities of the parties, including child support and visitation. The
parties have three children, S.G., born on June 13, 1992, J.G., born on June 27, 1997,
and J.G., born on May 20, 1999. In the separation agreement, the parties provided for
specific parenting time with appellee. In July of 2010, appellant filed a motion for
modification and reallocation of parental rights and responsibilities. In August of 2010,
appellee filed a motion for reallocation of parental rights and responsibilities. Appellee
also filed a motion for contempt against appellant alleging she moved without informing
appellee. In August of 2010, Pamela Lammon (“Lammon”) was appointed as guardian
ad litem (“GAL”) in the case. Appellant filed a motion for contempt in February of 2011.
{¶3} Lammon filed her first report in February of 2011. She recommended
appellant remain as the residential parent, expanded visitation for appellee, and an
order from the trial court that Toby Caudill (“Caudill”), appellant’s ex-fiancée, could have
no contact with the children. In April of 2011, Lammon filed an update to her report and
indicated she wished to speak with the children, but neither parent would bring them to
her office.
{¶4} While the motions were pending in this case, appellant filed a petition for
civil protection order (“CPO”) against appellee in Perry County on April 25, 2011, and
Delaware County, Case No. 14CAF050033 3
listed the children as “protected parties” on the petition. The magistrate in Perry County
initially granted the CPO against appellee; however, after appellee filed objections to the
decision, the trial court in Perry County vacated the CPO against appellee in February
of 2013. The magistrate in the instant case held a hearing on the parties’ motions to
modify on April 27, 2011, but appellant did not inform the magistrate of the pending
CPO petition.
{¶5} On May 2, 2011, the magistrate issued a decision denying appellee’s
motion for modification, granting appellee extended visitation, denying appellant’s
motion for contempt in part with regards to the failure to pay federal taxes, and granting
appellant’s motion for contempt in part with regards to the failure of appellee to pay
Ohio state taxes or set up a payment plan. The magistrate also ordered that Caudill
was to have no contact with the minor children. Neither party objected to the
magistrate’s decision and the trial court approved and adopted the decision on June 9,
2011. On June 6, 2011, appellee filed a motion for emergency change of custody. On
June 21, 2011, Lammon filed a Second Update to her GAL Report. In her update,
Lammon stated that appellant did not tell Lammon or the magistrate about the CPO she
filed against appellee that listed the children as protected parties. Further, that this is
the “strongest case of parental alienation” Lammon has seen in nineteen years of
practice as appellant will not follow court orders and is less than truthful. On June 29,
2011, the magistrate denied appellee’s motion for change of custody, finding no change
of circumstances. The trial court approved and adopted the magistrate’s decision on
July 21, 2011, as no objections were filed by either party. Appellant filed a motion to
terminate Lammon as the GAL in August of 2011, which was denied by the trial court.
Delaware County, Case No. 14CAF050033 4
{¶6} On March 26, 2012, appellee filed a motion for reallocation of parental
rights and responsibilities and motion to reappoint GAL. On April 24, 2012, appellee
filed a motion for modification of child support to reduce the amount of child support due
to the fact that S.G. was no longer enrolled in college on a part-time or full-time basis.
On May 14, 2012, appellant filed a second petition for civil protection order in Perry
County which contained allegations of phone and text threats from appellee. The Perry
County magistrate granted the CPO against appellee until May 14, 2013. However, on
August 23, 2012, appellant dismissed the action against appellee. As a result of
appellant’s allegations in the CPO petition, criminal charges were filed against appellee.
To defend appellee against the criminal charges, appellee hired a communications
expert. In the expert’s report, the cell tower data contradicted appellant’s assertion that
she received threats on May 8, 2012 in Perry County. Accordingly, the criminal charges
against appellee were dismissed.
{¶7} On June 15, 2012, appellee filed a motion for emergency change of
custody. Appellant filed a motion to dismiss appellee’s motion for emergency change of
custody or continue the matter until the CPO was concluded. On August 8, 2012, the
magistrate denied appellee’s motion for emergency relief, and also denied appellant’s
motion to dismiss. In October of 2012, the trial court appointed Louis Herzog (“Herzog”)
as GAL.
{¶8} On June 7, 2013, appellee filed a motion to show cause and for contempt
against appellant. Appellee included three prongs to his contempt motion: (1) appellant
failed to comply with regard to her duty to report when S.G. was no longer continuously
enrolled in college; (2) appellant failed to comply with the order of May 2, 2011 as she
Delaware County, Case No. 14CAF050033 5
willfully interfered with appellee’s visitation and caused parental alienation; and (3)
appellant failed to comply with the May 2, 2011 order that prohibited contact between
Caudill and the children. On August 29, 2013, appellant filed a motion for in-camera
interview of the children. On September 20, 2013, appellant filed a motion to show
cause against appellee for the failure to pay back federal taxes.
{¶9} The trial court held a hearing on August 30, 2013. Lammon testified that
she personally attended the CPO hearing in Perry County and observed the child testify
against appellee. Lammon confirmed her report that, based upon her investigation and
observations including talking to the children, talking to both parents, and home visits,
this is the strongest case of parental alienation she has seen in 19 years. Lammon
stated that she has not been involved in the case since 2011.
{¶10} Attorney Carrie Varner (“Varner”) testified as to the reasonableness and
necessity of appellee’s attorney fees. Ezekiel Keesbury (“Keesbury”), a case manager
at Delaware County Child Support Enforcement Agency, testified that appellant did not
inform the agency that S.G. withdrew from college in 2011. However, the agency
received documentation from appellee in April of 2013 that S.G. withdrew from college
in 2011.
{¶11} Appellant testified that, at the May 2, 2011 hearing, she did not tell the
magistrate or the GAL she had filed a CPO against appellee on April 25. Appellant
stated she never notified child support that S.G. was no longer in college. However,
she was under the impression that child support knew he was no longer in college.
Appellant testified on direct examination that the allegations in the CPO petition she
filed against appellee were true and accurate. However, on cross-examination,
Delaware County, Case No. 14CAF050033 6
appellant testified that she lied under oath as she was in Reynoldsburg, Ohio on May 8,
2012, when in previous sworn testimony and in the CPO petition, she testified she was
in Perry County at that date and time. Appellant stated she lied to protect herself and
her children. Appellant testified that she was very concerned about appellee visiting the
children because of previous incidents he was involved in. However, appellant could
not explain why this was never mentioned by the children in interviews with the GAL or
the magistrate.
{¶12} Appellee testified that the criminal charges filed against him in Perry
County were dismissed after he obtained an expert report regarding appellant’s cell
phone activity. Appellee stated he filed numerous motions to receive visitation with the
children and his attorney sent certified letters to appellant and her attorney requesting
visitation. Appellee never called the children or sent them cards or gifts because he
was afraid he would be in violation of the CPO order and he would be arrested.
{¶13} The trial court continued the hearing until October 11, 2013. At the
October 11th hearing, appellant testified that when she filed her personal tax return for
2012, her refund was applied to back taxes from the 2007 year in the amount of
$4,225.11. Appellee testified that he made a payment arrangement with the IRS in
2010 and monthly payments of $250 - $260 per month are automatically deducted from
his checking account. Further, that when he contacted the IRS, he was informed that
he owed nothing for 2005, 2006, or 2007. Appellee does not know why the IRS took a
portion of appellant’s refund as his payment plan is still in place and he received no
notice that the IRS was retaining any of appellant’s funds.
Delaware County, Case No. 14CAF050033 7
{¶14} On April 17, 2014, the trial court issued multiple judgment entries. In the
judgment entry on appellant’s motion for contempt against appellee for back taxes, the
trial court denied the motion and found no clear and convincing evidence of contempt by
appellee with regards to paying federal back taxes. In the judgment entry on attorney
fees, the trial court noted that though appellee was seeking $91,323.79 in attorney fees,
some of the acts appellee requested fees for were collateral in nature and not related to
the contempt charge. The trial court awarded appellee $2,850 in attorney fees for the
first prong of appellee’s contempt motion, $17,500 in attorney fees for the second prong
of appellee’s contempt motion, and $1,450 in attorney fees for the third prong of
appellee’s contempt motion. The trial court denied appellant’s motion for in-camera
interview of the children, finding that appellant alienated the children so much that an
interview would have no value and would not assist the trial court in a determination as
to appellant’s potential contempt.
{¶15} The trial court found appellant in contempt with regards to the first prong
of appellee’s motion for contempt and awarded appellee attorney fees. The trial court
found appellant’s testimony regarding notifying CSEA of S.G.’s withdrawal from college
was not credible and that appellee demonstrated, by clear and convincing evidence,
that appellant willfully failed to notify CSEA that S.G. withdrew from college. The trial
court sentenced appellant to thirty days in jail and a fine of $250. However, the jail
sentence was suspended upon appellant’s compliance with a payment plan.
{¶16} The trial court also found appellant in both civil and criminal contempt with
regards to the second prong of appellee’s motion for contempt and awarded appellee
attorney fees. The trial court found that, as a result of appellant’s actions, appellee had
Delaware County, Case No. 14CAF050033 8
no meaningful parenting time with the children since 2011. The trial court found that the
overall testimony of appellant established serious doubt upon her character because
when she was confronted with discrepancies, her efforts to explain her actions
undermined her credibility so badly that her testimony was worthless. The trial court
stated appellant lied under oath in an effort to prohibit appellee from having parenting
time with the children. Further, that appellant willfully and purposely interfered with
appellee’s visitation and also alienated the children towards appellee. The trial court
sentenced appellant to thirty days (30) in jail and $250 for the criminal contempt.
{¶17} With regards to the third prong of appellee’s motion for contempt, the trial
court found that while appellee presented compelling evidence with respect to Caudill
having contact with the children after 2011 and has shown by a preponderance of the
evidence that appellant was negligent in creating violations, there is not clear and
convincing evidence of the children’s contact with Caudill. However, in light of the
overall circumstances, the trial court assessed attorney fees to appellant.
{¶18} The trial court also issued a judgment entry with regards to child support.
The trial court found appellant went to such lengths to alienate the children from
appellee that it would be inappropriate for appellee to continue to pay child support.
The trial court terminated appellee’s child support obligation effective June 11, 2013 and
eliminated any existing arrearage of appellee.
{¶19} Appellant appeals the April 17, 2014 judgment entries and assigns the
following as error:
Delaware County, Case No. 14CAF050033 9
{¶20} “I. THE COURT ERRED AS A MATTER OF LAW WHEN IT
PERMANENTLY TERMINATED APPELLEE-FATHER’S CHILD SUPPORT
OBLIGATION.
{¶21} "II. THE TRIAL COURT LACKED SUFFICIENT EVIDENCE TO FIND
APPELLANT-MOTHER IN CONTEMPT.
{¶22} "III. THE COURT ERRED BY HOLDING APPELLANT-MOTHER IN
CRIMINAL CONTEMPT.
{¶23} "IV. THE COURT DENIED APPELLANT-MOTHER HER DUE PROCESS
RIGHT TO RECEIVE ADEQUATE NOTICE OF THE CONTEMPT CHARGES
AGAINST HER AND HER RIGHT TO CALL WITNESSES, AND ABUSED ITS
DISCRETION AND ERRED AS A MATTER OF LAW IN FINDING TWO CHARGES OF
CONTEMPT AND SENTENCING HER SEPARATELY FOR EACH WHEN THERE
WAS ONLY ONE MOTION PENDING.
{¶24} "V. APPELLEE-FATHER WAS BARRED BY COLLATERAL ESTOPPEL
FROM RE-LITIGATING THE CIVIL PROTECTION ORDERS ISSUED BY A
DIFFERENT COUNTY COURT.
{¶25} "VI. THE COURT ERRED AS A MATTER OF LAW BY ADMITTING AND
CONSIDERING EVIDENCE CONCERNING ALIENATION IN DETERMINING
APPELLANT-MOTHER COMMITTED CONTEMPT.
{¶26} "VII. THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING
FORMER GAL TO TESTIFY AS TO HEARSAY, MATERIALLY PREJUDICING
APPELLANT-MOTHER AS THE COURT RELIED ON SAID TESTIMONY.
Delaware County, Case No. 14CAF050033 10
{¶27} "VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ASSIGNING AND DETERMINING THE ATTORNEY FEES AWARD.
{¶28} "IX. THE COURT ERRED AND ABUSED ITS DISCRETION BY NOT
FINDING APPELLEE-FATHER IN CONTEMPT FOR REPAYMENT OF IRS FEES."
I.
{¶29} In her first assignment of error, appellant argues the trial court erred as a
matter of law when it terminated appellee’s child support obligation. Appellant argues
R.C. 3109.05(D) prohibits such termination when the custodial parent denies or
interferes with the noncustodial parent’s parenting time.
{¶30} Appellant is correct in her assertion that child support and parenting time
are separate issues. Davis v. Davis, 55 Ohio App. 3d 196, 563 N.E.2d 320 (8th Dist.
1998); Spencer v. Gatten, 8th Dist. Cuyahoga No. 89398, 2007-Ohio-4071. However,
that does not mean the trial court could not modify or terminate the child support
obligations of appellee if the court determines a modification or termination is warranted
pursuant to the statutory requirements contained in R.C. 3119.79 or R.C. 3119.88.
{¶31} The issue in this case is whether the parties had adequate notice of the
issue of child support modification as to J.G. and J.G. “Regardless of the means by
which the issue of modification is brought before the court, due process requires that
the defending party receive adequate notice of the motion and the opportunity to
present evidence in opposition.” Bellamy v. Bellamy, 110 Ohio App. 3d 576, 674 N.E.2d
1227 (6th Dist. 1996). In this case, appellee filed a motion for modification of child
support in April of 2012 that was still pending at the time of the 2013 hearing. However,
this motion requested a modification as to the oldest child, S.G. only, and made no
Delaware County, Case No. 14CAF050033 11
mention of a modification for the other two children. Further, the notice of hearing
issued by the trial court on July 11, 2013, stated the hearing would concern appellant’s
alleged contempt. There is nothing in the record to reflect that any party had notice that
the hearing would be concerned with a proposal to modify or terminate child support as
to the two minor children.
{¶32} The trial court’s sua sponte modification of child support as to J.G. and
J.G. fails to meet the due process requirements of notice and opportunity to defend as
no motion for modification or termination as to J.G. and J.G., either written or verbal,
was before the trial court. See Civ.R. 75(I); McNeeley v. Ortiz, 5th Dist. Stark No. 2010-
CA-00012, 2010-Ohio-4650. Appellant’s first assignment of error is sustained.
II., III., IV.
{¶33} In her next three assignments of error, appellant argues the trial court
erred in finding appellant in civil and criminal contempt. An appellate court’s standard of
review of a trial court’s finding of contempt is abuse of discretion. State ex. rel.
Celebreeze v. Gibbs, 60 Ohio St. 3d 69, 573 N.E.2d 62 (1991).
Civil Contempt
{¶34} The burden of proof for civil contempt is clear and convincing evidence.
Flowers v. Flowers, 10th Dist. No. 10AP-1176, 2011-Ohio-5972. The determination of
clear and convincing evidence is within the discretion of the trier of fact. Clear and
convincing evidence is that measure or degree of proof which will produce in the mind
of the trier of facts a firm belief or conviction as to the allegations sought to be
established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). We will not
disturb the trial court’s decision as against the manifest weight of the evidence if the
Delaware County, Case No. 14CAF050033 12
decision is supported by some competent, credible, evidence supporting the movant’s
burden of proof. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d 279, 376 N.E.2d
578 (1978). A reviewing court should not reverse a decision simply because it holds a
different opinion concerning the credibility of the witnesses and evidence submitted
before the trial court. A finding of an error in law is a legitimate ground for reversal, but
a difference of opinion on credibility of witnesses and evidence is not. Flowers v.
Flowers, 10th Dist. Franklin No. 10AP-1176, 2011-Ohio-5972.
{¶35} The purpose of civil contempt is to render punishment that is remedial or
coercive and for the benefit of the complainant. Brown v. Executive 200, Inc., 64 Ohio
St.2d 250, 416 N.E.2d 610 (1980). Normally, contempt proceedings in domestic
relations cases are indirect and civil in nature because their purpose is to coerce or
encourage future compliance with the court’s orders and their concern of behavior that
occurs outside the presence of the court. Flowers v. Flowers, 10th Dist. Franklin No.
10AP-1176, 2011-Ohio-5972.
First Prong of Contempt Motion – Civil Contempt
{¶36} Appellant argues the trial court lack sufficient evidence to find appellant in
civil contempt with regards to failing to notify CSEA that S.G. had withdrawn from
college, which was a reason for terminating support for him per the terms of the
separation agreement.
{¶37} Article D of the parties’ separation agreement, which was attached to and
incorporated into the decree of dissolution, states that “child support shall continue [after
emancipation] as long as the child(ren) continuously attend(s), on a full time or part time
basis any recognized college or school.” Appellant does not challenge the trial court’s
Delaware County, Case No. 14CAF050033 13
finding that she willfully failed to make this notification. Instead, appellant claims the
trial court erred in finding her in contempt because she had no legal duty to notify CSEA
of S.G.’s withdrawal from college.
{¶38} We first note that appellant failed to raise the issue of her legal duty to
notify before the trial court and instead argued substantial notification or compliance
with the notice requirements since the CSEA retroactively adjusted the child support
obligation with regards to S.G. “It is well established that a party cannot raise new
issues or legal theories for the first time on appeal.” Dolan v. Dolan, 11th Dist. Nos.
2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, citing Stores Realty Co. v. Cleveland,
41 Ohio St. 2d 41, 322 N.E.2d 629 (1975). Failure to raise this issue before the trial
court operates as a waiver of appellant’s right to assert such for the first time on appeal.
State ex. rel. Zollner v. Indus. Comm., 66 Ohio St. 3d 276, 611 N.E.2d 830 (1993).
{¶39} However, even if we consider appellant’s argument, we find that appellant
was under a statutory duty to notify the CSEA of S.G.’s withdrawal from school. R.C.
3119.87 requires:
the parent who is the residential parent and legal custodian of a child for
whom a support order is issued or the person who otherwise has custody
of a child for which a child support order is issued immediately shall notify
* * * the child support enforcement agency administering the child support
order of any reason for which the child support order should terminate.
With respect to a court child support order, a willful failure to notify the
child support enforcement agency as required by this division is contempt
of court.
Delaware County, Case No. 14CAF050033 14
{¶40} Under the decree, S.G.’s withdrawal from school was a reason to
terminate the child support order. Appellant listed S.G. as a protected person in her
CPO petition in both April of 2011 and May of 2012 as he was residing with her.
Further, on the CPO petition in May of 2012, appellant provided that the two minor
children lived with S.G. and appellant at the address listed on the CPO petition from
August 2010 – present (May 14, 2012). Thus, appellant was S.G.’s residential parent
having care, custody, and control of S.G. until at least May of 2012 and had the
statutory duty to notify CSEA of any reason for which the child support order should
terminate. Appellant admitted in her request for admission that S.G. had not been
continuously enrolled in college since he left Hocking College on February 8, 2011 and
the CSEA case manager testified that the case file indicated no contact from either
party about S.G. quitting school until the agency received information from appellee in
April of 2013 that S.G. quit school in February of 2011. Accordingly, the trial court did
not err in finding appellant in civil contempt with regards to the first prong of appellee’s
motion.
Second Prong of the Contempt Motion – Civil Contempt
{¶41} The trial court found appellant in civil contempt for the deliberate and
willful of deprivation of parenting time. Appellant contends the trial court erred in finding
her in civil contempt for interference with parental rights because there is insufficient
evidence in the record to demonstrate that she was in contempt of the trial court’s
orders. According to appellant, appellee’s lack of parenting time occurred because he
chose not to exercise visitation, not because appellant interfered with it. In support of
Delaware County, Case No. 14CAF050033 15
her argument, appellant points to appellee’s testimony that he made no attempt to call
his children, did not send them cards, and did not send them gifts.
{¶42} However, appellee testified that, due to the CPO’s being filed by appellant,
he did not contact the children because the CPO had been granted against him and he
was afraid that he would be arrested for violating the order if he attempted contact.
Appellee stated he went through the legal channels he knew of to gain visitation,
including filing two motions for change in custody and having his attorney send letters to
appellant’s counsel and the GAL requesting visitation. The trial court found appellant’s
conflicting statements “undermined her credibility so badly that much, if not nearly all, of
her testimony is essentially worthless” and that “in her effort to prohibit the Father any
parenting times or any meaningful relationship with the children, she has abused both
the civil protection statutes and the criminal states by perpetrating a fraud on the courts
by lying under oath without any impunity.” Given the trial court’s characterization of
appellant’s behavior, it is clear that the court did not find appellant to be credible in her
assertion that she complied with the visitation schedule as set forth in the magistrate’s
decision of May 2, 2011 and approved by the trial court on June 9, 2011. The trial court
is in the best position to determine the credibility of the witnesses and there is nothing to
indicate the trial court erred in its credibility determination in this case. In view of the
conflicting testimony and the trial court’s credibility determination, the trial court’s civil
contempt finding with respect to the second prong of appellee’s motion for contempt is
not against the manifest weight of the evidence.
Delaware County, Case No. 14CAF050033 16
Second Prong of the Contempt Motion - Criminal Contempt
{¶43} In addition to finding appellant in civil contempt on the second prong of
appellee’s motion for contempt, the trial court also found appellant in criminal contempt
with regards to the second prong of appellee’s motion for contempt. Appellant argues
the trial court erred in finding her in criminal contempt because the proceeding instituted
was civil in nature, because she did not receive adequate notice of the contempt
charges, and could not call witnesses on her own behalf. Appellee argues the trial court
found appellant in criminal contempt not for the denial of parenting time, but for lying
under oath. Appellee contends that lying under oath constitutes direct contempt and
summary punishment was appropriate. Thus, due process did not require that appellant
be given the opportunity to present witnesses or notice of the pending criminal sanction.
{¶44} The burden of proof for criminal contempt is proof beyond a reasonable
doubt. Brown v. Executive 200, Inc., 64 Ohio St. 2d 250, 416 N.E.2d 610 (1980). The
purpose of criminal sanctions is to vindicate the authority of the court and punish past
acts of disobedience and thus penalties for criminal contempt are unconditional and
“may take the shape of an absolute fine for a specific amount or a determinate period of
confinement.” Id.
{¶45} Direct contempt occurs in the presence of the court and obstructs the
administration of justice. R.C. 2705.01. “Since direct contempt interferes with the
judicial process, the court may summarily deal with it in order to secure the
uninterrupted and unimpeded administration of justice.” Sansom v. Sansom, 10th Dist.
Franklin No. 05AP-645, 2006-Ohio-3909. To justify the imposition of a summary
contempt, the act must pose a threat that requires immediate sanction to preserve the
Delaware County, Case No. 14CAF050033 17
dignity and authority of the court and designed to fill “the need for immediate penal
vindication of the dignity of the court.” Cooke v. United States, 267 U.S. 517, 45 S. Ct.
390, 69 L. Ed. 767 (1925). The rule that a court may summarily find one in contempt is
to be applied cautiously because the accused is not afforded the due process
protections ordinarily afforded a criminal defendant. In re Lodico, 5th Dist. Stark No.
2003-CA-00446, 2005-Ohio-172. Further, a summary proceeding is not authorized
simply because the conduct constitutes a direct contempt and even if the facts are clear
because they took place in the presence of a judge, the effect of the contemptuous
conduct must create a “need for speed” to immediately suppress the court-disrupting
misbehavior and restore order to the proceeding. Id. Absent that need, an evidentiary
hearing is required even though the contempt is direct. Id.
{¶46} We first note that the trial court’s judgment entry regarding the criminal
contempt does not specifically indicate, as appellee suggests, that appellant was found
in criminal contempt for lying under oath. While the trial court states, in its findings of
fact, that appellant lied under oath, it is not clear in the judgment entry that this was the
basis for the finding of criminal contempt. Further, even if the trial court’s finding that
appellant lied under oath is the basis for the criminal contempt, the actions in the case
at bar do not rise to the level of a serious threat to orderly proceedings. Although
appellant’s conduct of lying under oath was arguably improper, it did not pose an
imminent threat to the administration of justice sufficient to warrant the imposition of
summary punishment without notice, a hearing, and the opportunity for appellant to
present witnesses on her behalf as it relates to the criminal contempt charge. There
was no “need for speed” to immediately suppress the behavior or restore order to the
Delaware County, Case No. 14CAF050033 18
proceeding, as evidenced by the fact that the trial court did not find appellant in criminal
contempt during the contempt hearing. While the absence of this “imminent threat”
does not preclude the finding of criminal direct contempt, it does preclude the imposition
of summary punishment without notice and an evidentiary hearing on the charge. We
find the trial court erred in summarily imposing criminal contempt sanctions on appellant
without notice and a hearing.
{¶47} Based on the foregoing, appellant’s second, third, and fourth assignments
of errors are sustained in part and overruled in part. The trial court did not err in finding
appellant in civil contempt for the first and second prongs of appellee’s motion for
contempt. However, the trial court erred in summarily punishing appellant for criminal
contempt without notice and an opportunity for a hearing.
V.
{¶48} Appellant argues that the trial court erred as collateral estoppel prevents
the re-litigating of the civil protection orders by the Perry County court.
{¶49} Collateral estoppel precludes re-litigation of any “issue that has been
actually and necessarily litigated and determined in a prior action.” Fort Frye Teachers
Assn v. State Emp. Rels. Bd., 81 Ohio St. 3d 392, 395 692 N.E.2d 140 (1998). In order
for collateral estoppel to apply, it must be shown that the fact or issue “(1) was actually
and directly litigated in the prior action, (2) was passed upon and determined by a court
of competent jurisdiction and (3) when the party against whom collateral estoppel is
asserted was a party in privity with a party to the prior action.” New Winchester
Gardens, Ltd. v. Franklin Co. Bd. of Revision, 80 Ohio St. 3d 36, 1997-Ohio-360, 684
N.E.2d 312.
Delaware County, Case No. 14CAF050033 19
{¶50} In this case, we find the civil protection orders were not “re-litigated” in this
action. Appellee’s motion for contempt claimed that appellant violated his parental
rights. Pertinent to this claim was the fact that appellant filed two civil protection orders
that included the children and that appellant admitted she was lying with regards to at
least some of the underlying facts from the civil protection order. The facts surrounding
the civil protection orders that included the children and their termination are relevant
and probative on the issues in this case as appellant herself continued to assert, as a
defense to the motion for contempt, the existence of the civil protection orders. Further,
evidence of appellant’s truthfulness in previous court proceedings is probative and
relevant to her credibility in this case. The fact or issue as to appellant’s contempt of
court for violating appellee’s parental rights was not actually and directly litigated in the
prior civil protection order proceedings. Accordingly, collateral estoppel does not apply.
Appellant’s fifth assignment of error is overruled.
VI.
{¶51} In her sixth assignment of error, appellant argues the trial court erred by
admitting and considering evidence on parental alienation because the word “alienation”
is not included in R.C. 2705.031(B), the statute which authorizes a party to file a
contempt motion for the failure to pay support, failure to comply with visitation order, or
interference with visitation order. R.C. 2705.031(B)(2) provides that, “Any parent who is
granted parenting time rights under a parenting time order or decree * * * any person
who is granted visitation rights under a visitation order or decree * * * may initiate a
contempt action for a failure to comply with, or an interference with, the order or
decree.”
Delaware County, Case No. 14CAF050033 20
{¶52} In this case, appellee filed a motion for contempt alleging “persistent
denial of and willful interference with father’s visitation and parental alienation for two
years.” The trial court found appellant in contempt for willfully and purposely denying
parenting times, which is sufficient to cite appellant for contempt pursuant to R.C.
2705.031(B)(2). The trial court made an additional finding that appellant willfully and
purposely alienated the children towards appellee. This additional finding does not alter
the finding of contempt for willfully and purposely denying parenting time and is not
improper simply because R.C. 2705.031(B)(2) does not include the word “alienation.”
See, e.g. Flowers v. Flowers, 10th Dist. Franklin No. 10AP-1176. Appellant’s sixth
assignment of error is overruled.
VII.
{¶53} Appellant argues the trial court abused its discretion by allowing Lammon
to testify as to hearsay. Appellant contends Lammon’s statements contained in her
reports are hearsay because she has had no contact with the children since 2011 and
were thus not based on personal knowledge. Further, that Lammon’s testimony
regarding the children’s presence and testimony at the CPO hearing was impermissible
hearsay.
{¶54} Evidentiary rulings lie within the broad discretion of the trial court. Such
rulings will not be reversed on appeal absent an abuse of discretion which amounts to
prejudicial error. State v. Lundy, 41 Ohio App. 3d 163, 535 N.E.2d 664 (1st Dist. 1987).
An abuse of discretion connotes more than an error of law or judgment; it implies that
the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
Delaware County, Case No. 14CAF050033 21
{¶55} Hearsay is an out-of-court statement offered for the truth of the matter
asserted and is generally not admissible at trial. Evid.R. 801(C). A statement is not
hearsay when offered for a purpose other than to prove the truth of the matter asserted.
State v. Osie, 140 Ohio St. 3d 131, 2014-Ohio-2966, 16 N.E.3d 588.
{¶56} Appellant argues that Lammon’s entire testimony was hearsay as it lacked
personal knowledge because she had no contact with the children, appellant, or
appellee since 2011 and her statements were based upon her previous report to the
court. We disagree. Lammon testified that although her duties as GAL in the case
ended in June of 2011, she remained as GAL until all outstanding motions were
resolved in February of 2012. Lammon testified concerning her report and her
supplemental reports to the court that she authored throughout the case. Lammon
explained her conclusions were based upon her investigation over the course of the
case, including talking with the children, talking with their counselor, reviewing criminal
and civil records, attending depositions, talking with the prosecuting attorney,
conducting home visits with each parent, and talking to the extended family members of
each parent. Ohio courts have defined “personal knowledge” as “knowledge gained
through firsthand observation or experience, as distinguished from a belief based upon
what someone else has said.” Zeedyk v. Agricultural Soc. of Defiance Cty., 3rd Dist.
Defiance No. 4–04–08, 2004–Ohio–6187, quoting Bonacorsi v. Wheeling & Lake Erie
Railway Co., 95 Ohio St. 3d 314, 320, 767 N.E.2d (2002); Black's Law Dictionary (7th
Ed. Rev.1999) 875. Lammon’s testimony, reports, and supplemental reports were
gained through her firsthand observation and experience, not from a belief based upon
Delaware County, Case No. 14CAF050033 22
what someone else said. Accordingly, her testimony was based upon personal
knowledge.
{¶57} Appellant also argues Lammon’s testimony regarding the testimony of the
children at the hearing on the civil protection order petition in Perry County was
inadmissible hearsay. We disagree. When Lammon testified regarding her finding that
appellant interfered with appellee’s parental rights, one of the bases for this finding was
that, prior to the CPO hearing, one child stated that she witnessed appellant engaging in
improper sexual conduct, but that at the CPO hearing a different child testified she
witnessed that conduct. “Given the guardian’s role and the requirements that she
explain her investigation and the basis for her recommendation, her report and
testimony may necessarily include information about what other people told her.”
Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615. These “out-of-court
statements do not become inadmissible ‘hearsay,’ however, unless they are offered in
evidence to prove the truth of the matter asserted * * * an out-of-court statement offered
simply to prove that the statement was made is not hearsay.” Id. In this case,
Lammon’s statements regarding the previous testimony of the child were not presented
to prove the truth of what the child testified about, but were offered simply to prove that
the statement was made and her conclusion that the children flip-flopped their story was
relevant to her recommendations and findings.
{¶58} Appellant finally argues Lammon was not qualified as an expert and thus
could not testify regarding parental alienation. We first note that appellant failed to
object to counsel for appellee’s question to Lammon regarding her opinion of appellant.
Further, “the trial court, as the fact finder, is free to believe, all, part, or none of the
Delaware County, Case No. 14CAF050033 23
testimony of each witness.” Hrabovsky v. Axley, 5th Dist. Stark No. 2013CA00156,
2014-Ohio-1168. The testimony of Lammon alone did not establish parental alienation.
The trial court specifically noted it was making a finding of parental alienation based on
the “totality of the evidence,” including the testimony of appellant and appellee.
{¶59} Moreover, even assuming, arguendo, that her statements were improperly
admitted hearsay, their admission was harmless error. Pursuant to Criminal Rule 52(A),
“any error, defect, irregularity, or variance which does not affect substantial rights shall
be disregarded.” With regards to the CPO issue, although the trial court’s judgment
entry notes that it found Lammon attended the full hearing on the CPO and listened to
testimony, the trial court did not make any express findings about the statements made
at that hearing by parties that did not testify in this action. See State v. Sorrels, 71 Ohio
App.3d 162, 593 N.E.2d 313 (1st Dist. 1991). Further, the trial court based its finding of
contempt regarding visitation on the totality of the evidence, including the testimony of
appellant, the testimony of appellee, and the documents submitted into evidence, not
simply the testimony of Lammon. The trial court placed particular emphasis on the
testimony of appellant with her conflicting statements and her admission that she lied
under oath. Accordingly, assuming arguendo the testimony of Lammon was improperly
admitted, this error does not affect appellant’s substantial rights. Appellant’s seventh
assignment of error is overruled.
VIII.
{¶60} Appellant contends the trial court erred and abused its discretion in
assigning and determining the attorney fees award. Appellant argues that attorney fees
cannot be assessed for the third prong of appellee’s contempt motion since the trial
Delaware County, Case No. 14CAF050033 24
court did not find appellant in contempt on that charge, that parental alienation is not a
valid basis for finding appellant in contempt and thus the attorney fees associated with
such finding are inappropriate, and that attorney fees awarded extend beyond the
contempt actions.
{¶61} “An award of attorney’s fees in a domestic relations action is committed to
the sound discretion of the trial court.” Flowers v. Flowers, 10th Dist. Franklin No.
10AP1176, 2011-Ohio-5972. This Court will not reverse an award of attorney fees
absent a finding that the trial court abused its discretion. Id.
{¶62} Appellant contends that since parental alienation is not an appropriate
basis for a finding of contempt, the trial court cannot assess attorney fees for the
second prong of appellee’s contempt motion. We disagree. As discussed above, in
finding appellant in contempt, the trial court made a contempt finding based upon the
denial of parenting time and then made an additional finding on parental alienation. In
assessing attorney fees for the civil contempt regarding the denial of parenting time, the
trial court stated there was “extensive discovery and preparation to prove the Mother’s
intent to purposely violate court orders with respect to Father’s parenting times.” The
trial court then made an additional finding with respect to parental alienation. This
additional finding does not alter the finding of contempt for willfully and purposely
denying parenting time and is not improper simply because R.C. 2705.031(B)(2) does
not include the word “alienation.” See, e.g. Flowers v. Flowers, 10th Dist. Franklin No.
10AP-1176, 2011-Ohio-5972. R.C. 3109.051(K) requires that a trial court award
contempt-related costs and reasonable attorney’s fees if it finds a party in contempt.
The trial court properly awarded appellee attorney fees with regard to the denial of
Delaware County, Case No. 14CAF050033 25
parenting time pursuant to this statute. Further, our reversal of the criminal contempt
finding and sanctions against appellant do not alter the award of attorney fees with
regards to the second prong of appellee’s contempt motion, as the trial court also found
appellant in civil contempt for appellant’s denial of appellee’s parenting times and can
properly assess attorney fees based on that civil contempt finding.
{¶63} Appellant argues the trial court erred in awarding attorney fees on the third
prong of appellee’s motion when the trial court did not find appellant in contempt for that
prong. We disagree. R.C. 3105.73(B) provides as follows:
In any post-decree motion or proceeding that arises out of an action for
divorce, dissolution * * * the court may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds the
award equitable. In determining whether an award is equitable, the court
may consider the parties’ income, the conduct of the parties, and any
other relevant factors the court deems appropriate, but it may not consider
the parties’ assets.
{¶64} This case is a post-decree action that arises from a dissolution, thus, R.C.
3105.73 applies. In this case, although the judgment does not include an express
finding that the award of attorney fees and costs with regards to the third prong of the
motion for contempt was equitable, it indicates that the trial court relied on equitable
considerations in the award of attorney fees. The trial court’s decision specifically cites
appellant’s conduct in awarding appellee attorney fees, as allowed for in R.C.
3105.73(B). Although the trial court found appellee had not met the clear and
convincing burden of proof on this third claim, the trial court did find appellee had shown
Delaware County, Case No. 14CAF050033 26
that fact by a preponderance of the evidence. The trial court found an award of
attorney’s fees on the third claim was appropriate given the totality of the circumstances
and the conduct of appellant. Therefore, the trial court did not abuse its discretion in
finding the award of attorney’s fees for the third prong of the contempt motion was
equitable.
{¶65} Appellant finally argues the trial court erred in awarding attorney fees
beyond the scope of the contempt action. We disagree. In this case, appellee asked
for attorney’s fees in excess of $90,000 and specifically requested attorney’s fees for
actions collateral to the contempt motion, including fees for appellee’s defense against
the civil protection orders ($58,481.37) and fees for the defense of appellee against the
criminal charges in Fairfield and Perry counties as a result of reports by appellant
($8,257.50). Appellee requested $24,584.92 in attorney fees for post decree actions in
the instant case. Appellee argued the entire amount was necessary to establish
appellant’s course of conduct of committing acts in violation of the trial court’s orders
concerning parenting times for appellee. However, the trial court determined that the
attorney fees for the other cases were collateral and in nature and cannot be assessed
as an award of attorney fees with respect to the contempt charges.
{¶66} The trial court then examined the exhibits and billing statements in support
of the request for attorney fees and, together with the testimony of the expert witness,
determined the charges that could be reasonably associated with pursuing evidence in
support of the three contempt charges totaled $21,800. On the first prong of the motion
for contempt, the trial court found that appellee had to expend attorney fees to obtain
evidence of the withdrawal from one college and non-attendance records at a second
Delaware County, Case No. 14CAF050033 27
college. On the second prong of the motion for contempt, the trial court determined that
in order for appellee to gather the necessary evidence to establish the willful effort to
deny parenting time appellee had to conduct a large discovery effort. Further, the trial
court specifically stated on the second prong that the fees assessed were only those
fees closely associated with the contempt charge. Thus, any fees that pre-dated the
motion for contempt were those the trial court found specifically were necessary for
appellee to meet his burden with regards to the motion for contempt. Accordingly, the
trial court did not abuse its discretion in awarding appellee $21,800 in attorney fees for
the post-decree motion for contempt.
{¶67} Appellant’s eighth assignment of error is overruled.
IX.
{¶68} Appellant argues the trial court erred and abused its discretion by
determining appellee was not in contempt for the failure to repay IRS fees. The
separation agreement dated March 12, 2010 provides that, “any and all back taxes up
to this date will be paid by husband.”
{¶69} Appellant testified that when she filed her personal tax return for 2012, a
portion of her 2012 tax refund ($4,225.11) was retained by the IRS for liabilities incurred
in 2007. Appellant asked the court to find appellee in contempt for failing to pay the
2007 taxes as required by the separation agreement.
{¶70} Appellee testified that he established a repayment plan with the IRS in
2010 and is currently making monthly payments of approximately $250 per month to the
IRS that are automatically deducted from his checking accounts. Appellee presented
bank records showing automatic withdrawals from the IRS starting in January of 2011.
Delaware County, Case No. 14CAF050033 28
Appellee stated the information he received from the IRS was that he had a zero
balance for 2005, 2006, and 2007. Appellee testified that he has no idea why the IRS
took appellant’s refund as his payment agreement with the IRS rolls all of the previous
years back taxes into one account and he pays one lump sum payment on that
agreement every month until it is paid off. Further, that his repayment agreement was
supposed to stop all collection efforts by the IRS. Appellee testified that there has been
no indication from the IRS that they were no longer going to accept his repayment plan
and the IRS continues to process his payments each month.
{¶71} The trial court found that appellant failed to prove that appellee was not in
compliance with the separation agreement. We find the trial court did not abuse its
discretion in this determination as the IRS’ seizure of the funds was not the result of
noncompliance with the decree by appellee. Appellee testified that he entered into a
repayment program with the IRS to pay the 2007 tax liability and he presented bank
records showing monthly automatic drafts from his account to make the required
payments. Appellee testified that his repayment agreement was supposed to stop
collection efforts by the IRS, that the IRS is still taking money each month from his bank
account, and that he had no indication from the IRS that they were no longer going to
accept the repayment plan they established with him. As noted above, the trial court, as
the fact finder, is free to believe all, part, or none of the testimony of each witness.
State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Appellant’s
ninth assignment of error is overruled.
{¶72} Based on the foregoing, we overrule appellant’s assignments of error V,
VI, VII, VIII, and IX. Further, we sustain appellant’s assignments of error II, III, and IV
Delaware County, Case No. 14CAF050033 29
as to criminal contempt only and overrule the remainder of assignments of error II, III,
and IV as to civil contempt. Appellant’s first assignment of error is sustained. The
judgment entries of the Delaware County Common Pleas Court, Domestic Relations
Division, are affirmed in part and reversed and remanded in part.
By Gwin, J., and
Wise, J., concur;
Hoffman, P.J., concurs in part;
dissents in part
Hoffman, P.J. concurring in part and dissenting in part
{¶73} I concur in the majority's analysis and disposition of Appellant's
assignments of error numbers II, III, IV, V, VI, VIII and IX.
Delaware County, Case No. 14CAF050033 30
{¶74} I further concur in the majority's general analysis and disposition of
Appellant's assignment of error number VII. I write separately as to that assignment of
error only to note I do not believe all evidentiary rulings by a trial court are subject to an
abuse of discretion standard of review.1
{¶75} Finally, while I concur in the majority's decision to sustain Appellant's first
assignment of error, I disagree with its reason for doing so and dissent from its decision
not to sustain the assignment of error on its merits.
{¶76} While I do not disagree with the majority's due process analysis, Appellant
did not raise said claim in her brief to this Court. Appellant presented her argument
strictly as error as a matter of law. I would sustain this assignment as a matter of law
based upon the clear language of R.C. 3109.05(D). Accordingly, I would reverse
outright the trial court's order terminating child support.
1
For a fuller analysis, see my concurring opinion in State v. Baughman, 5th Dist.
Fairfield App. No. 13-CA-49, 2014-Ohio-1821.
[Cite as Geary v. Geary, 2015-Ohio-259.]