Swanson v. Swanson

[Cite as Swanson v. Swanson, 2020-Ohio-3754.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Steve Swanson Court of Appeals No. WD-20-005
Appellee Trial Court No. 2002 DR 0018
v.
Amanda Swanson DECISION AND JUDGMENT
Appellant Decided: July 17, 2020
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Amanda Swanson, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Amanda Swanson, appeals from the judgment of the Wood
County Court of Common Pleas, Domestic Relations Division, denying her motion to
show cause and for Civ.R. 11 sanctions. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} Appellant, and appellee, Steve Swanson, were divorced many years ago. On
February 9, 2010, they entered into a consent order whereby appellee agreed to pay child
support of $365.09 per month for their son, S.S. S.S. was born in 1996, and has
developmental disabilities that prevent him from fully caring for himself. The consent
agreement stated that child support shall continue for S.S. beyond the age of 19, but that
the obligation “will be reviewed on a regular basis.”
{¶ 3} In 2015, appellee moved to review or terminate child support for S.S.
Appellant did not appear for the hearing on this motion. After the hearing, the trial court
denied appellee’s motion to review or terminate child support for S.S., finding that
appellee was unable to present any information regarding S.S.’s current circumstances.
{¶ 4} Thereafter, on April 2, 2019, appellee again moved to terminate child
support for S.S. Appellant’s 2019 motion was premised on the grounds that S.S. was
then 23 years old, had graduated high school, was partially employed, and had the ability
to earn income or apply for disability assistance. Appellee’s motion was scheduled for a
hearing on August 14, 2019.
{¶ 5} The day before the hearing, on August 13, 2019, appellant filed a pro se
motion to show cause and for costs pursuant to R.C. 2323.51 and Civ.R. 11. In her
motion, appellant alleged that appellee’s filing of his 2019 motion to terminate child
support was frivolous because those issues had already been decided in 2015. Appellant
also alleged that appellee failed to comply with Wood County Court of Common Pleas
Local Rule 6.08 when he moved to terminate child support. In addition, appellant alleged
that appellee gave false financial information to the court and to the Wood County Child
Support Enforcement Agency, specifically referring to money that was taken from the
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children’s college savings accounts.1 Finally, appellant alleged that appellee has
repeatedly used the court to harass appellant by filing frivolous motions and putting forth
false information. In support of this last allegation, appellant cited four instances:
(1) appellee misled the court that he was unaware of S.S.’s condition; (2) in his 2015
motion to terminate child support, appellee falsely stated that S.S. had graduated from
high school in 2015; (3) in 2019, appellee incorrectly stated in a June 25, 2019 motion to
continue that the hearing was scheduled for June 26, 2019, when it was actually
scheduled for June 27, 2019, which confused appellant and caused her to show up to
court on the wrong date; and (4) appellee sent interrogatories in the wrong format, which
forced appellant to re-type the document in its entirety.
{¶ 6} On August 14, 2019, a hearing on appellee’s motion to terminate child
support was held before the magistrate. A transcript of that hearing has not been made
part of the record on appeal.
{¶ 7} Following the hearing, the magistrate ordered that appellee’s child support
obligation for S.S. be reduced by 50 percent, to $182.54 per month. In her decision, the
magistrate found that S.S. graduated high school in 2018, that he is considering attending
college on a part-time basis, that he was invited to participate in a five-week vocational
and independent living experience in March 2018, that he has been successfully working
at Jimmy John’s since 2017, earning $11,400 in 2018, and that as of January 2019, he
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Appellant and appellee had a total of three children together.
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was the owner of a house valued at approximately $240,000. The magistrate recognized
that although S.S. is not able to live independently, he has made great strides and is
contributing to his own support.
{¶ 8} Appellant did not timely appeal the magistrate’s decision, and it was
approved by the trial court on September 20, 2019.
{¶ 9} On October 4, 2019, appellee moved to dismiss appellant’s motion to show
cause, arguing that the motion largely appeared to be an answer to the motion to
terminate child support, which has since been litigated and decided. Regarding the
college funds, appellee asserted that there was nothing in the original divorce decree or
any subsequent rulings that required him to maintain those accounts.
{¶ 10} In appellant’s response to appellee’s motion to dismiss, appellant argued
that the magistrate specifically stated that the motion to show cause would not be heard
or litigated at the August 14, 2019 hearing. Further, she stated that appellee had taken
money from the college funds, but did not report that as income. Appellant also alleged
that appellee acknowledged that he had given false sworn testimony and submitted false
documents to the court about S.S.’s graduation in order to have child support reduced.
{¶ 11} On October 10, 2019, the magistrate issued her decision, denying
appellant’s motion to show cause and for sanctions. The magistrate found that while the
motion to show cause was not ripe for consideration on August 14, 2019, much of the
content in appellant’s motion to show cause related to the motion to terminate child
support, and in fact, appellee testified and cross-examined appellant using arguments
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contained in appellant’s motion to show cause. The magistrate further recognized that
the parties have been to court multiple times on the child support issue, but noted that the
court has continuing jurisdiction to review the child support order, and that either party
has the right to bring a motion to the court. Thus, the magistrate concluded that appellant
had not stated a cause of action for a potential finding of contempt or for Civ.R. 11
sanctions, and thereby denied appellant’s motion and vacated a hearing that had been
scheduled for November 1, 2019.
{¶ 12} On October 24, 2019, appellant timely filed her objections to the
magistrate’s decision. In her objections, appellant argued that the motion to show cause
was specifically not heard or litigated during the August 14, 2019 hearing. Appellant
also reasserted her argument that appellee withdrew approximately $45,000 in funds from
the children’s college savings accounts and did not report that as income for child support
calculation purposes, and her argument that appellee gave false testimony about S.S.’s
high school graduation date. Appellant concluded that her motion to show cause clearly
stated a cause of action for finding appellee in contempt.
{¶ 13} On December 27, 2019, the trial court entered its judgment, overruling
appellant’s objections, and adopting the October 10, 2019 magistrate’s decision. The
court reasoned that appellant failed to demonstrate contempt because she failed to
provide evidence that appellee has disobeyed a court order, and nothing in the record
indicates that appellee has failed to make a child support payment or that he is in arrears.
The court also noted that both parties had the opportunity to testify and cross-examine
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each other about all pertinent financial information during the August 14, 2019 hearing.
As to the request for Civ.R. 11 sanctions, the trial court found that it had continuing
jurisdiction to review the child support order, and that appellee’s conduct of filing a
meritorious motion to terminate child support based upon a substantial change in
circumstances for S.S. was not frivolous.
II. Assignment of Error
{¶ 14} Appellant has timely appealed the trial court’s December 27, 2019
judgment, and now asserts one assignment of error for our review:
1. The trial court committed a reversible error by including errors of
fact in the Judgment of December 27, 2019 and by not following the court’s
decision of December 10, 2015 concerning child support for son [S.S.], an
adult with a disability.
III. Analysis
{¶ 15} We review a trial court’s decision in a contempt proceeding for an abuse of
discretion. Siegel Seaman v. Sloan, 2016-Ohio-5432, 60 N.E.3d 1270, ¶ 12 (6th Dist.);
State ex rel. Delco Moraine Div., General Motors Corp. v. Indus. Comm. of Ohio, 48
Ohio St. 3d 43, 44, 549 N.E.2d 162 (1990). An abuse of discretion connotes that the trial
court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} In support of her appeal, appellant argues that the trial court’s
December 27, 2019 judgment contains two mistakes of fact. First, appellant argues that
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the court’s statement that “During the August 14, 2019 hearing, both parties had the
opportunity to testify and cross-examine each other on these issues,” was factually
incorrect because appellant was repeatedly warned during the hearing not to bring up the
issues raised in the motion to show cause. Second, she argues that the court’s statement
that “[S.S.] graduated from high school, participated in an independent living program,
obtained part-time employment at Jimmy Johns, and purchased his own home,” was
factually incorrect because S.S. obtained the employment with a job coach and
assistance, and because S.S. never purchased his own home and would be unable to do
so.
{¶ 17} With regard to whether the trial court’s statements were incorrect, we note
that those statements of fact are supported by the magistrate’s decision granting
appellee’s motion to terminate child support. Moreover, because a transcript of the
August 14, 2019 hearing was not provided, we cannot independently review what was
said at that hearing. “When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and thus,
as to those assigned errors, the court has no choice but to presume the validity of the
lower court’s proceedings.” Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199,
400 N.E.2d 384 (1980). Therefore, we find no merit to appellant’s argument that the trial
court’s judgment contained factual errors.
{¶ 18} In addition, although not contained in the argument section of appellant’s
brief, in the interest of justice we will consider appellant’s various other assertions.
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Appellant presents five arguments for why appellee should be held in contempt, which
we will address in turn: (1) appellee violated Wood County Court of Common Pleas
Local Rule 6.08, which sets forth certain requirements that must be met when filing a
motion to modify a prior domestic relations order; (2) appellee withdrew an estimated
$45,000 from their sons’ college accounts and did not report that amount as income;
(3) appellee gave false testimony that S.S. graduated from high school in 2015;
(4) appellee intentionally put the wrong dates on a June 25, 2019 motion to continue
which confused appellant and caused her to miss a hearing; and (5) appellee sent
interrogatories in the incorrect format, forcing appellant to re-type the entire document.
{¶ 19} “In general, contempt occurs when a party disobeys a court order.”
McDonald v. Rodriguez, 6th Dist. Sandusky No. S-16-042, 2017-Ohio-8509, ¶ 9, citing
State ex rel. Corn v. Russo, 90 Ohio St. 3d 551, 554, 740 N.E.2d 265 (2001). “To
establish contempt, the moving party must establish a valid court order, knowledge of the
order by the defendant, and a violation of the order.” Id., quoting Henry v. Henry, 9th
Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 12.
{¶ 20} In her first argument, appellant states that appellee violated Wood County
Court of Common Pleas Local Rule 6.08, in particular, the requirement that appellee’s
motion to terminate child support should have referred to the February 9, 2010 consent
decree and the denial of appellee’s 2015 motion to review or terminate child support.
Notably, Wood County Court of Common Pleas Local Rule 6.08(B) provides that failure
to comply “may be sufficient grounds to deny a motion for filing, or if filed, to be
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dismissed.” Because the rule is a procedural rule that does not even mandate dismissal of
the motion, and because appellee’s noncompliance had zero prejudicial impact on the
proceedings, we hold that the trial court did not abuse its discretion in failing to hold
appellee in contempt.
{¶ 21} Relatedly, appellant argues that appellant’s 2019 motion to terminate child
support was frivolous conduct under Civ.R. 11 because the issue had been decided in
2015. Like contempt, we review a trial court’s decision on a motion for Civ.R. 11
sanctions for an abuse of discretion. Bergman v. Genoa Banking Co., 6th Dist. Ottawa
No. OT-14-019, 2015-Ohio-2797, ¶ 34. Here, the February 9, 2010 consent order
specifically recognized that the issue would be reviewed “on a regular basis,” and the
trial court recognized that it had continuing jurisdiction to review the child support order.
Furthermore, the trial court found that there had been a substantial change in S.S.’s
circumstances, warranting a reduction in child support. Therefore, we hold that the trial
court did not abuse its discretion in determining that the 2019 motion to terminate child
support was not frivolous.
{¶ 22} Thus, appellant’s first argument is without merit.
{¶ 23} Second, appellant again raises the issue of appellee withdrawing funds
from the college savings accounts. We note that the only evidence in the record of this
occurring is a bank statement from a savings account showing a funds transfer of
$2,283.61 on March 6 of an unknown year. However, even assuming that appellant’s
allegations are true, appellant has not identified any court order that appellee violated,
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and the trial court found that there was no evidence that appellee had ever missed a child
support payment or that he is in arrears. Furthermore, the trial court found that much of
the allegations were related to appellee’s motion to terminate child support and both
parties had the opportunity to testify and cross-examine each other on those issues at the
August 14, 2019 hearing. As discussed above, because there is no transcript from the
August 14, 2019 hearing, we must presume the regularity of the proceedings. Therefore,
we find that the trial court’s attitude was not unreasonable, arbitrary, or unconscionable,
and we hold that the trial court did not abuse its discretion in failing to hold appellee in
contempt.
{¶ 24} Third, appellant argues that appellee gave false testimony in the hearing on
his 2015 motion to review or terminate child support, in that appellee testified that S.S.
graduated from high school in 2015, when he in fact did not graduate until 2018. On this
point, the magistrate’s decision following the 2015 hearing found that appellant testified
that he heard from S.S.’s brother that S.S. graduated from high school and is “doing
well,” but that appellant had not spoken to S.S. in over a year, and had no further
information about S.S.’s whereabouts, his capacity to work, or whether or not he was
employed. Thus, given appellant’s lack of knowledge about S.S.’s circumstances at the
time—which was the basis of the trial court’s denial of his motion to review or terminate
child support—it is not clear that appellant knowingly provided a false statement to the
court, and we hold that the trial court did not abuse its discretion for failing to hold him in
contempt.
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{¶ 25} Fourth, appellee argues that appellant intentionally put the wrong dates in a
June 25, 2019 motion to continue, which caused appellant to become confused and miss
the hearing date. In the motion, appellee requested a continuation of a June 26, 2019
hearing, when the hearing was actually scheduled for June 27, 2019. We find that the
trial court’s failure to hold appellee in contempt for this conduct was not an abuse of
discretion for three reasons. First, there is no evidence in the record to suggest that the
mistake in days was intentional. Second, the docket reflects that appellant was sent
notice of the June 27, 2019 hearing date by the court, and thus she had no reason to rely
on the date in appellee’s motion. Finally, the hearing was rescheduled to August 14,
2019, and appellant attended and participated in the hearing, thus she suffered no
prejudice. Therefore, we hold that appellant’s fourth argument is without merit.
{¶ 26} Fifth, and finally, appellant argues that appellee sent interrogatories in the
wrong format. In support, appellant quoted Civ.R. 33, but provided no further
information regarding this issue. Even assuming that the interrogatories were in an
incorrect format—which required appellant to re-type the entire document—we hold that
the trial court did not abuse its discretion in failing to hold appellee in contempt for what
amounts to a trivial inconvenience to appellant.
{¶ 27} Accordingly, having found no merit to appellant’s arguments, we find her
assignment of error is not well-taken.
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IV. Conclusion
{¶ 28} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Wood County Court of Common Pleas,
Domestic Relations Division, is affirmed. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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