Phillips v. Phillips

[Cite as Phillips v. Phillips, 2014-Ohio-5439.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RENEE PHILLIPS NKA BLASHAK : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2014CA00090
:
ANTHONY PHILLIPS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County
Court of Common Pleas, Family
Court Division Case No.
2001DR00753
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 8, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
TYRONE HAURITZ JOSEPH A. KACYON
101 Central Plaza South 2745 Nesbitt Ave.
500 Chase Tower Akron, OH 44319
Canton, OH 44702
Stark County, Case No. 2014CA00090 2
Delaney, J.
{¶1} Defendant-appellant Anthony Phillips (“Anthony”) appeals from the
May 2, 2014 Judgment Entry of the Stark County Court of Common Pleas,
Family Court Division. Plaintiff-appellee is Renee Phillips nka Blashak (“Renee”).
FACTS AND PROCEDURAL HISTORY
{¶2} Anthony and Renee divorced on April 3, 2002. One child was born
of their marriage: Conner Phillips, born on June 9, 1992.
{¶3} The parties’ Shared Parenting Plan states the following regarding
payment for Conner’s college expenses: “The parents agree to equally share the
cost of any college expenses for Conner including, but not limited to, college
tuition, books, and housing. The parties further agree to deposit $50 per month
into the American Tuition Trust Fund for Conner’s college education.”
{¶4} In January 1998, while still married, Renee opened an account with
the American Tuition Trust Fund. Conner is the named beneficiary. Automatic
payments of $41 per month were deducted from Renee’s pay and deposited into
the account.1 Anthony admittedly did not make any payments into the account.
The account was closed in February 2005 and rolled into a College Advantage
529 Savings Plan.
{¶5} Conner enrolled at Kent State University in fall 2010. Both parties
attended orientation and were told bills would be sent to students only via the
1
The payments deducted at the time were $41, instead of the court-ordered $50,
because the American Tuition Trust was set up to allow parents to purchase
college credit hours at the rate of $41/hour.
Stark County, Case No. 2014CA00090 3
University’s “Flash” line. Parents could access the bills only with permission of
the student and would need a PIN number to do so.
{¶6} Fall 2010 expenses were covered by the amount in the tuition trust
fund. In spring 2011, Anthony paid $2397 toward school expenses and Renee
paid $7395. During the 2011-2012 school year, Renee paid $4706.80 and
Anthony paid zero. During the 2012-2013 school year, Renee paid $4880 and
Anthony paid zero. In addition to these amounts, Conner obtained student loans
and grants.
{¶7} Conner and Anthony argued in March 2012 with the end result that
Anthony said he would not pay toward Conner’s college expenses until Conner
apologized.
{¶8} Renee emailed Anthony and sent him a certified letter documenting
expenses paid as of March 4, 2013. Anthony responded he was not under any
obligation to pay toward the college expenses and would not do so.
{¶9} On October 1, 2013, Renee filed a Motion and Affidavit for
Contempt asserting Anthony was aware of the expenses from Fall 2010 through
Spring 2013 and failed to pay his 50-percent share. Renee stated she was owed
$7,292.40 “as of March 1, 2013 for expenses that she has paid on [Anthony’s]
behalf so that Conner can continue his education,” and Anthony owed
$10,043.00 representing 50 percent of the balance of Conner’s outstanding
student loans.
{¶10} Court-ordered meditation was terminated with no resolution of the
college-expenses issue.
Stark County, Case No. 2014CA00090 4
{¶11} A trial before a magistrate was held on Renee’s motion for
contempt on February 27, 2014. On March 4, 2014, the magistrate issued a
Decision concluding Anthony was in contempt for failure to comply with the
shared parenting agreement regarding college expenses; he was ordered to pay
Renee the sum of $5,232.40 toward college expenses plus $1,096 in partial
attorney fees and costs. He was also ordered to pay Renee’s attorney $1,830 for
the remainder of the attorney fees.
{¶12} Anthony objected to the magistrate’s decision and a hearing was
scheduled for April 28, 2014. On May 2, 2014 the trial court entered a Judgment
Entry approving and adopting the magistrate’s decision.
{¶13} Anthony now appeals from the May 2, 2014 decision of the trial
court.
{¶14} Anthony raises nine assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
FAILING TO REVIEW THE FACTS AND LAW FROM THE MAGISTRATE’S
DECISION DE NOVO.”
{¶16} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT
FOLLOWING THE PRECEDENT SENT (sic) BY HETTERICK V. HETTERICK,
2013-OHIO-15 (2013), WHICH REQUIRES NOTICE OF THE AMOUNTS DUE
AND TO WHOM THEY ARE TO BE PAID PRIOR TO AN ACTION FOR
CONTEMPT FOR NON-PAYMENT OF COLLEGE COSTS.”
Stark County, Case No. 2014CA00090 5
{¶17} “III. THE TRIAL COURT ERRED BY CONCLUDING THAT MR.
PHILLIPS HAD ACCESS TO THE COLLEGE EXPENSES THROUGH
FLASHLINE WHERE THE EVIDENCE SHOWED THAT FLASHLINE COULD
HAVE ONLY SHOWED HIM AMOUNTS DUE FOR TUITION, NOT ANY
ACTUAL BILLS AND NOT ANY HOUSING COSTS.”
{¶18} “IV. THE TRIAL COURT ERRED BY CONCLUDING THAT MR.
PHILLIPS WAS AT FAULT FOR NOT OBTAINING THE BILLS FROM
CONNOR, THE PARTIES’ ADULT SON, WHERE THE UNCONTROVERTED
EVIDENCE SHOWED THAT MR. PHILLIPS REQUESTED THE BILLS BUT
THAT CONNOR FAILED TO PROVIDE THEM.”
{¶19} “V. THE TRIAL COURT ERRED BY CONCLUDING THAT A
LETTER FROM MS. BLASHAK, WHICH DID NOT INCLUDE ANY BILLS OR
RECEIPTS, WAS SUFFICIENT NOTICE TO MR. PHILLIPS OF HIS
OBLIGATION DESPITE THE SELF-SERVING ERRORS CONTAINED IN THAT
LETTER.”
{¶20} “VI. THE TRIAL COURT ERRED IN CONCLUDING THAT A
CHECK MR. PHILLIPS GAVE TO CONNOR FOR HIS HOUSING EXPENSES
SHOULD NOT BE CREDITED TO MR. PHILLIPS BECAUSE IT WAS NOT
GIVEN TO THE LANDLORD DIRECTLY, WHERE THE EVIDENCE SHOWED
THAT MR. PHILLIPS DID NOT KNOW WHO THE LANDLORD WAS DESPITE
REQUESTING A COPY OF THE LEASE FROM CONNOR AND MS.
BLASHAK.”
Stark County, Case No. 2014CA00090 6
{¶21} “VII. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE
THAT MS. BLASHAK HAD GIVEN CONNOR MONEY WHICH SHE ADMITTED
WAS FOR PURPOSES OTHER THAN COLLEGE—INCLUDING FOOD,
PERSONAL ITEMS, FRATERNITY DUES, AND DANCE CLASSES.”
{¶22} “VIII. THE TRIAL COURT ERRED BY CONCLUDING THAT MS.
BLASHAK’S PAYMENT OF THOSE OUTSIDE ITEMS CONSTITUTED
EVIDENCE THAT MR. PHILLIPS’S $4,000.00 PAYMENT WAS FOR
SOMETHING OTHER THAN COLLEGE EXPENSES.”
{¶23} “IX. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE
CONCERNING THE AGREEMENT OF THE PARTIES CONCERNING THE TAX
EXEMPTION FOR CONNOR.”
ANALYSIS
I.
{¶24} In his first assignment of error, Anthony asserts the trial court erred
because its decision overruling his objection does not individually address each
of his eight objections. Anthony also infers the trial court applied the incorrect
standard of review. We disagree.
{¶25} The trial court is obliged to independently review the issues upon
objections to a magistrate’s ruling. Ohio Civ. R. 53(D)(4)(d) states in pertinent
part:
* * * *. In ruling on objections, the court shall undertake an
independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual
Stark County, Case No. 2014CA00090 7
issues and appropriately applied the law. Before so ruling,
the court may hear additional evidence but may refuse to do
so unless the objecting party demonstrates that the party
could not, with reasonable diligence, have produced that
evidence for consideration by the magistrate.
{¶26} The trial court does not sit in the position of a reviewing court when
reviewing the referee's report; rather, the trial court must conduct a de novo
review of the facts and conclusions contained in the report. Inman v. Inman, 101
Ohio App. 3d 115, 118, 655 N.E.2d 199 (2nd Dist.1995), citing DeSantis v.
Soller, 70 Ohio App. 3d 226, 232, 590 N.E.2d 886 (10th Dist.1990).
{¶27} Anthony does not point to any affirmative evidence in the record the
trial court did not apply the correct standard of review. “[W]hen independently
reviewing the magistrate's decision, and in the absence of an affirmative
demonstration the trial court applied an incorrect standard, given the presumption
[of] regularity, we presume the trial court applied the correct standard.” Rudduck
v. Rudduck, 5th Dist. Licking No. 98CA85, unreported, 1999 WL 436818, at *4
(Jun. 16, 1999). We note the trial court’s entry states in pertinent part, “The
Court, after having made on (sic) independent analysis of the facts and the
applicable law, hereby approves and adopts the magistrate’s decision and orders
it entered as a matter of record.” We therefore presume the trial court applied
the correct standard of review.
{¶28} We also presume the trial court overruled each of Anthony’s eight
objections despite its failure to set forth each objection individually in the entry.
Stark County, Case No. 2014CA00090 8
Anthony argues the trial court should have addressed each in turn. While the
trial court never expressly addressed each and every objection, it is presumed
that the trial court, sub silentio, overruled the objections when it proceeded to
enter judgment disposing of the objections. Shaffer v. Shaffer, 109 Ohio App. 3d
205, 212, 671 N.E.2d 1317, 1321 (3rd Dist.1996). “Where the court fails to rule
on an objection or motion, it will be presumed that the court overruled the
objection or motion.” Id., citing Solon v. Solon Baptist Temple, Inc., 8 Ohio
App.3d 347, 457 N.E.2d 858 (8th Dist.1982).
{¶29} Anthony’s first assignment of error is overruled.
II.
{¶30} In his second assignment of error, Anthony argues the trial court
erred in failing to follow the precedent of Hetterick v. Hetterick, 12th Dist. Brown
No. 2012-02-002, 2013-Ohio-15. We disagree.
{¶31} First, we note the magistrate specifically found the instant case
distinguishable from Hetterick, to wit:
* * * *. In [Hetterick], the father was required to pay colleges
(sic) expenses for his daughters. One daughter initiated
student loans on her own behalf and was the only signator
(sic) on the loans. The court found that these student loans
constituted college expenses that the father was responsible
to pay, however the court did not find that his failure to pay
amounted to contempt of court. The father did not have any
knowledge of the loan amounts or lending institutions
Stark County, Case No. 2014CA00090 9
involved, what payments were due or where to send the
payments. The court found that the father could not be held
in contempt of court because he was not presented with the
bills or given information necessary to pay them. However,
the court found that the father was in contempt of court for
failure to pay on another daughter’s student loan that was
co-signed by the mother. The facts demonstrated that the
father was aware of the loans, aware of the amounts due,
received several bills and had access to the loan
information. These two scenarios within the same case
highlight that the court’s focus should be on knowledge and
access to information. In this case, [Anthony] had
knowledge that Conner was utilizing Pell grants and
both subsidized and unsubsidized student loans to pay
for college. [Anthony] had access to tuition statements
by using the PIN number or by contacting Conner.
[Anthony] was aware that Conner was living in fraternity
housing and could obtain billing information from
Conner or from [Renee]. [Anthony] was not satisfied
with the outline of expenses sent to him by [Renee], yet
he knew he had to pay his share of the housing.
[Anthony] simply chose not to obtain the tuition or
housing details because he was angry with his son.
Stark County, Case No. 2014CA00090 10
(Emphasis added.)
{¶32} As Renee points out, decisions of other appellate districts are not
controlling authority for this Court. While we are bound by decisions of the Ohio
Supreme Court, we are not bound by appellate decisions from other districts
although we afford those decisions due consideration and respect. Hogan v.
Hogan, 29 Ohio App. 2d 69, 77, 278 N.E.2d 367 (8th Dist.1972); see also, State
v. Thompson, 193 Ohio App. 3d 44, 48, 2011-Ohio-1606, 950 N.E.2d 1022 (8th
Dist.), at ¶ 13.
{¶33} That being said, we find Hetterick instructive regarding payment for
college expenses in the context of contempt, and we agree with the magistrate’s
analysis supra. Hetterick concluded the appellant was required to pay valid
college expenses but could not be held in contempt for failure to do so when he
was not presented the opportunity to pay the bills or given the requisite
information necessary to pay them. Hetterick v. Hetterick, 12th Dist. Brown
No.DRA 2005 0543, 2013-Ohio-15, ¶ 43. In the instant case, however, Anthony
could have obtained the necessary information and chose not to do so, leading
the trial court to find him in contempt.
{¶34} Our review of a trial court's contempt finding is abuse of discretion.
Snider v. Snider, 5th Dist. Fairfield No. 11–CA–58, 2013–Ohio–1168, ¶ 6, citing
State ex rel. Celebrezze v. Gibbs, 60 Ohio St. 3d 69, 573 N.E.2d 62 (1991). We
will not reverse a finding of contempt unless the trial court's decision was
unreasonable, arbitrary, or unconscionable. Snider at ¶ 6, citing Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N .E.2d 1140 (1983). We look to the totality of
Stark County, Case No. 2014CA00090 11
the circumstances in determining whether the trial court's decision constitutes an
abuse of discretion. Ryder v. Ryder, 5th Dist. Stark No. 2001 CA00190, 2002–
Ohio–765, *2, citing In re: Brumfield, 5th Dist. Stark No.1998CA00326,
unreported, 1999 WL 744172 (Jun. 7, 1999). Our standard of review of a
contempt finding is “highly deferential.” See, In re Helfrich, 5th Dist. Licking No.
13CA20, 2014–Ohio–1933, ¶ 40, citing State ex rel. Cincinnati Enquirer v.
Hunter, 138 Ohio St. 3d 51, 2013–Ohio–5614, 3 N.E.3d 179, ¶ 29; Dobbins v.
Evans, 5th Dist. Stark No.2011 CA00171, 2012–Ohio–898, ¶ 12. We defer to the
trial court because the magistrate and trial court have heard the evidence and
are familiar with the terms of the parties' agreement.
{¶35} Our review of the record reveals the decision of the trial court,
incorporating that of the magistrate, is not unreasonable, arbitrary, or
unconscionable. We concur with the analysis of the court below; indeed, we are
foreclosed from any other result by Anthony’s admissions he refused to pay
toward the college expenses despite being provided with the amounts due as
discussed infra.
{¶36} We thus agree with the trial court’s position on the application of
Hetterick v. Hetterick and Anthony’s second assignment of error is overruled.
III., IV., V.
{¶37} Anthony’s third, fourth, and fifth assignments of error are related
and shall be considered together. Anthony asserts the evidence was insufficient
to establish he could have learned the amounts he owed for college expenses
and was at fault in failing to do so. We disagree.
Stark County, Case No. 2014CA00090 12
{¶38} Ohio courts have defined contempt of court as “conduct 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.
Tomaszczyk (1971), 27 Ohio St. 2d 55, 271 N.E.2d 815, paragraph one of the
syllabus. As noted supra in our discussion of Anthony’s second assignment of
error, our standard of review regarding a finding of contempt is limited to a
determination of whether the trial court abused its discretion. Wadian v. Wadian,
5th Dist. Stark No.2007CA00125, 2008–Ohio–5009, ¶ 12, citing In re Mittas, 5th
Dist. Stark No.1994 CA 00053 (Aug. 6, 1994). In order to find an abuse of
discretion, the reviewing court must determine that the trial court’s decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶39} The burden of proof in a civil contempt action is proof by clear and
convincing evidence. Jarvis v. Bright, 5th Dist. Richland No. 07CA72, 2008–
Ohio–2974 at ¶ 19, citing Brown v. Executive 200, Inc., 64 Ohio St. 2d 250, 416
N.E.2d 610 (1980). The determination of “clear and convincing evidence” is
within the discretion of the trier of fact. The trier of fact is in a far better position
to observe the witnesses' demeanor and weigh their credibility. See, e.g., Taralla
v. Taralla, 5th Dist. Tuscarawas No.2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,
citing State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967).
{¶40} Upon review of the record, we find no abuse of discretion by the
trial court. The trial court’s findings are supported by clear and convincing
Stark County, Case No. 2014CA00090 13
evidence. Anthony argues on one hand he was not sufficiently on notice of the
college expenses he was required to pay, yet argues Renee’s demand letter of
March 2013, which included a breakdown of expenses to that date, was
insufficient. Anthony wants to be excused for failing to inquire into the amounts
he admittedly knew he owed, but also asks to be excused from payment because
the expenses were not provided to him in a certain manner. Anthony knew
Conner was in college, accruing expenses; he had the same opportunity to
access the “Flash line” Renee had; and he admittedly refused to talk to his son to
get the information he needed to pay his share of the bills. Upon being contacted
by Renee, Anthony repeatedly disclaimed his obligation to pay half the expenses
in direct contravention of the court order. These facts support the finding of
contempt.
{¶41} In short, the findings of the trial court are supported by clear and
convincing evidence and the court’s finding of contempt is not unreasonable,
arbitrary, or unconscionable. Anthony’s third, fourth, and fifth assignments of
error are overruled.
VI., VIII.
{¶42} Anthony’s sixth and eighth assignments of error are related and will
be considered together. Anthony argues he should have been credited with
$4,000 for a check he gave to Connor and the check should have been credited
to him because the evidence does not support the check was for something other
than “college expenses.” We disagree.
Stark County, Case No. 2014CA00090 14
{¶43} Anthony directly gave Conner a check for $4000 during the 2011-
2012 school year and testified the check was for “college expenses.” (T. 61).
College expenses include tuition, books, and housing. Tuition at that time was
covered by Conner’s grants and loans. Conner was living off-campus but
Anthony made no provision for the check to be directed to the landlord. We are
unable to conclude Anthony gave the check to Conner directly in fulfillment of his
obligations under the Shared Parenting Plan.
{¶44} We further note the trial court highlighted the fact that both parents
gave Conner money attributed to needs other than the “college expenses” which
did not result in credit toward either party’s obligations under the Shared
Parenting Plan. We again point out “[a]s a general rule, appellate courts review
the propriety of a trial court's determination in a domestic relations case for an
abuse of discretion.” Carter v. Carter, 9th Dist. Summit No. 25981, 2012-Ohio-
2475, ¶ 17, citing Saari v. Saari, 195 Ohio App. 3d 444, 960 N.E.2d 539, 2011–
Ohio–4710, ¶ 8 (9th Dist.). “This is true because the domestic relations court, as
a court of equity, ‘must have discretion to do what is equitable upon the facts and
circumstances of each case.” Id.
{¶45} We find the trial court did not abuse its discretion in concluding
Anthony should not be credited with $4000.
VII., IX.
{¶46} In his seventh and ninth assignments of error, Anthony argues the
trial court erred in entering certain evidence and in excluding other evidence. We
disagree.
Stark County, Case No. 2014CA00090 15
{¶47} The admission or exclusion of relevant evidence is a matter left to
the sound discretion of the trial court. Absent an abuse of discretion resulting in
material prejudice, a reviewing court should be reluctant to interfere with a trial
court’s decision in this regard. State v. Hymore, 9 Ohio St. 2d 122, 128, 224
N.E.2d 126 (1967).
{¶48} First, Anthony argues the trial court should not have used the
$5,490 Renee paid in checks she gave Conner for non-college related expenses
in weighing whether his $4000 check should be credited. We disagree. In light
of our analysis of the trial court’s treatment of Renee’s $5,490 in assignments of
error six and eight, supra, we find no abuse of discretion in the trial court’s
rationale here. The trial court did not make an evidentiary error; instead, it simply
described the equity of the outcome.
{¶49} Finally, Anthony argues the trial court failed to address the issue of
the tax exemption for Conner. We note, however, as did the trial court at the
objection hearing, Anthony did not proffer the evidence he argues here regarding
the tax exemption. He has therefore waived this argument on appeal.
{¶50} Anthony’s seventh and ninth assignments of error are overruled.
Stark County, Case No. 2014CA00090 16
CONCLUSION
{¶51} The appellant’s nine assignments of error are overruled and the
judgment of the Stark County Court of Common Pleas, Family Court Division is
affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.