Polk v. Polk

[Cite as Polk v. Polk, 2012-Ohio-2968.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
DEAN R. POLK :
Plaintiff-Appellee/ : C.A. CASE NO. 24882
Cross-Appellant
v. : T.C. NO. 02DR159
MARY BETH POLK (McIntosh) : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellant/ :
Cross-Appellee
:
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OPINION
Rendered on the 29th day of June , 2012.
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STEPHEN E. KLEIN, Atty. Reg. No. 0014351, 240 Bohanan Drive, Vandalia, Ohio 45377
Attorney for Plaintiff-Appellee/Cross-Appellant
JENNIFER L. BROGAN, Atty. Reg. No. 0075558, 400 PNC Center, 6 N. Main Street,
Dayton, Ohio 45402
Attorney for Defendant-Appellant/Cross-Appellee
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FROELICH, J.
{¶ 1} Mary Beth Polk, now known as Mary Beth McIntosh, appeals from a
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judgment of the Montgomery County Court of Common Pleas, Domestic Relations Division,
which found her in contempt for failure to provide parenting time in the summer of 2010 to
her former husband, Dean Polk, as ordered by the court. Mr. Polk filed a cross-appeal,
arguing that the trial court mistakenly ordered him to pay Mrs. Polk’s attorney fees in the
amount of $350 in connection with the motion for contempt, when a local rule requires that
the movant be awarded such fees.
{¶ 2} We conclude that the trial court did not abuse its discretion in finding Ms.
McIntosh in contempt, and that it mistakenly ordered Mr. Polk to pay attorney fees to Ms.
McIntosh.
Facts and Procedural History
{¶ 3} The parties were divorced in 2003, and Ms. McIntosh was named the
residential parent of their children. During the summer, Mr. Polk’s parenting time was to
be in accordance with Montgomery County’s Standard Order of Parenting Time, which
provides that “[t]he non-residential parent shall have parenting time for five weeks (35 days)
each summer,” to be taken in increments of not more than two weeks and not less than one
week. The Standard Order further provides that the non-residential parent “shall give the
residential parent written notice of summer parenting time plans between March 1 and April
1 each year.” Further, the non-residential parent “has priority of choice of summer
parenting time dates if notice is given as required,” unless a particular exception applies,
which is not at issue in this case.
{¶ 4} The parties also filed two agreed orders related to parenting time that are
relevant to this appeal. In December 2007, they filed an agreed order that required Mr. Polk
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to “get the children to all future [extracurricular] activities timely,” in exchange for which
Ms. McIntosh agreed to withdraw a motion for contempt based on his failure to get the
children to such activities. In April 2008, the parties entered into another agreed entry,
which provided that Ms. McIntosh would provide Mr. Polk with a schedule of the
children’s practices and games and that, if the children were involved in extracurricular
activities outside a fifty-mile radius of Dayton, Mr. Polk “may opt out of transporting the
children” to those activities, and Ms. McIntosh “may transport the children to said events.”
{¶ 5} In the spring of 2010, Mr. Polk informed Ms. McIntosh of the five weeks
during which he intended to exercise visitation with the children that summer, as required by
the standard order; these times included August 2 through August 16, 2010. Shortly after
he made this request, the parties’ older daughter informed her father that she was going to
Florida for a diving competition during the week of August 2. In response, in early May
2010, Mr. Polk sent a letter to Ms. McIntosh requesting that his visitation time be
rescheduled from the week of August 2 to the week of July 26 through August 1. Mr. Polk
later indicated that the third week of August could also serve as his makeup time.
Meanwhile, Ms. McIntosh sent a letter to Mr. Polk, through their attorneys, advising that she
would exercise her two weeks of summer parenting time from July 19 through July 26 and
August 16 though August 23, 2010.
{¶ 6} Mr. Polk learned on July 25, from his daughter, and on July 28, from Ms.
McIntosh’s attorney, that the week of July 26 was not acceptable to Ms. McIntosh for Mr.
Polk’s parenting time with the children, because Ms. McIntosh had family visiting from
Alaska during that time. Ms. McIntosh had scheduled her own vacation during the third
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week of August (the other alternate week proposed by Mr. Polk). Ms. McIntosh took the
older daughter to Florida for the competition during the week of August 2, and Mr. Polk
visited with his other daughter during that time. Mr. Polk did not get a fifth week of
visitation with the older daughter during the summer of 2010.
{¶ 7} The trial court found that Ms. McIntosh was in contempt of its visitation
order for failing to provide Mr. Polk with an additional week of visitation with their older
daughter in the summer of 2010. It sentenced Ms. McIntosh to three days in jail, which
could be purged if Ms. McIntosh provided Mr. Polk “with make-up parenting time of one
week in the summer of 2012.” The court also ordered Mr. Polk to pay attorney fees in the
amount of $350 to Ms. McIntosh.
{¶ 8} Ms. McIntosh raises one assignment of error on appeal, and Mr. Polk raises
one assignment on cross-appeal. Ms. McIntosh’s assignment states:
The Domestic Relations Court erred when, in the absence of a court
order requiring make up parenting time, it held Mary Polk (nka
McIntosh) in contempt of court for failure to provide Dean parenting
time.
{¶ 9} Ms. McIntosh claims that the trial court erred in finding her in contempt
because her actions did not violate the express language of the court’s order.
Applicable Law and Standard of Review
{¶ 10} Contempt of court is defined as “disobedience of an order of a court * * *
which brings the administration of justice into disrespect, or which tends to embarrass,
impede or obstruct a court in the performance of its functions.” Windham Bank v.
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Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus;
Fischer v. Fischer, 2d Dist. Clark No. 11 CA 81, 2012-Ohio-2102, ¶ 10. To support a
finding of contempt, the moving party must establish by clear and convincing evidence that a
valid court order exists, that the offending party had knowledge of the order, and that the
offending party violated such order. Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287,
295, 299, 588 N.E.2d 233 (10th Dist.1990); Underleider v. Underleider, 12th Dist. Clermont
Nos. CA2010-09-069, CA2010-09-074, 2011-Ohio-2600. ¶ 36. “Clear and convincing
evidence” is “that measure or degree of proof which is more than a mere ‘preponderance of
the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Ohio State Bar Assn. v. Reid, 85
Ohio St.3d 327, 331, 708 N.E.2d 193 (1999).
{¶ 11} R.C. 2705.031(B)(2) permits a trial court to punish a residential parent for
any act which interferes with the court’s visitation order. Depending on the facts of the case,
contempt may be excused with actual or substantial compliance, but the Supreme Court of
Ohio has rejected the argument that substantial compliance with a court order automatically
precludes a finding of contempt. Geiser Durst v. Durst, 3d Dist. Seneca No. 13-02-38,
2003-Ohio-2029, ¶ 18, citing State ex rel Celebreeze v. Gibbs, 60 Ohio St.3d 69, 75, 573
N.E.2d 62 (1991). “Substantial compliance will not shield a disobedient party who is able
to comply with a court’s order from contempt sanctions.” Id. “A party must take all
reasonable steps within [his or] her power to comply with the court’s order.” Briggs v.
Moelich, 8th Dist. Cuyahoga No. 97001, 2012-Ohio-1049, ¶ 15, citing LaHoud v.
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Tri-Monex, Inc., 8th Dist. Cuyahoga No. 96118, 2011-Ohio-4120, ¶ 54.
{¶ 12} An appellate court will not reverse a trial court’s finding of contempt absent
an abuse of discretion. Willis v. Willis, 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d
878, ¶ 59, citing State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249(1981). A trial court abuses its discretion when its attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Finding of Contempt
{¶ 13} Ms. McIntosh claims that, reading the court’s visitation order in
conjunction with the parties’ agreed orders, there was no basis for the trial court to conclude
that she violated the court’s order and that she should not have been found in contempt.
{¶ 14} In finding Ms. McIntosh in contempt, the trial court observed that the
agreed entry which allowed Mr. Polk to “opt out of transporting the children” to
extracurricular activities more than fifty miles from Dayton “did not give Ms. McIntosh the
ability to waive that parenting time.” The court also observed that, although Mr. Polk had
contacted Ms. McIntosh in the spring about the conflict between their daughter’s diving
competition and his summer visitation weeks, suggesting the week of July 26 as an
alternative, Ms. McIntosh did not respond to this request until July 28. The court also
questioned Ms. McIntosh’s “defense for her inability to provide make-up parenting time”
due to having relatives visiting from out-of-state, because she acknowledged that those
relatives had arrived in the middle of the month, so they had a week to see the children
before the proposed visitation would have begun.
{¶ 15} Ms. McIntosh essentially asserts that, if Mr. Polk opts out of transporting a
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child to an extracurricular activity that occurs during his parenting time, she may take the
child to the activity and, in doing so, Mr. Polk waives his parenting time. We find no
support for this interpretation in the parties’ agreements or the court’s order. Although Mrs.
McIntosh correctly asserts that the agreements and order also do not provide for make-up
parenting time, the trial court reasonably concluded that Ms. McIntosh’s unwillingness to
cooperate or show flexibility in allowing Mr. Polk to reschedule his summer visitation in
light of the out-of-state diving competition, and poor communication violated the spirit of
the court’s order. Moreover, it did a disservice to Mr. Polk and to their daughter. The
trial court did not abuse its discretion in finding Ms. McIntosh in contempt and in ordering
her to provide Mr. Polk with an additional week of visitation with their older daughter in
order to purge the contempt.
{¶ 16} Ms. McIntosh’s assignment of error is overruled.
{¶ 17} Mr. Polk’s assignment on cross-appeal states:
The trial court erred in awarding attorney fees to Defendant and not to
Plaintiff.
{¶ 18} Mr. Polk asserts that, pursuant to Montgomery D.R.Rule 4.27(B), Ms.
McIntosh should have been ordered to pay attorney fees related to the motion for contempt;
he contends that the court erred in its order, which required “Defendant,” Mr. Polk, to pay
attorney fees. Ms. McIntosh has not responded to this argument.
{¶ 19} Montgomery D.R.Rule 4.27(B) provides:
The court may award attorney fees, costs, and other expenses of suit
to a successful moving party in any enforcement action, regardless of the
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moving party’s own ability to pay such expenses. Such an award is
mandatory in any contempt action involving child support, parenting time, or
spousal support. [Internal citations omitted.]
{¶ 20} Pursuant to this rule, Ms. McIntosh, the respondent and the party found in
contempt, should have been ordered to pay attorney fees. It appears that the trial court
inadvertently named the incorrect party; we will reverse this portion of the judgment and
remand to the trial court for it to correct this portion of its decision.
{¶ 21} Mr. Polk’s assignment of error on cross-appeal is sustained.
{¶ 22} The trial court’s finding of contempt will by affirmed. Its award of
attorney fees to Ms. McIntosh will be reversed, and the matter will be remanded to the trial
court for it to correct the order related to payment of attorney fees.
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FAIN, J. and CANNON, J., concur.
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Stephen E. Klein
Jennifer L. Brogan
Hon. Timothy D. Wood