Craig v. Gilchrist

[Cite as Craig v. Gilchrist, 2022-Ohio-4477.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Simone Craig, :
No. 22AP-52
Plaintiff-Appellee, : (Case No. 17JU-4732)
&
v. : No. 22AP-55
(Case No. 17JU-4732)
Terrence Gilchrist, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 13, 2022
On brief: Kyle B. Keener, Franklin County CSEA, for
appellee.1
On brief: Terrence E. Gilchrist, pro se, for appellant.
Argued: Terrence E. Gilchrist.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
MENTEL, J.
{¶ 1} Defendant-appellant, Terrence Gilchrist, pro se, appeals from a December 21,
2021 judgment entry sentencing him to 12 days in the Franklin County Jail for contempt of
court and a January 19, 2022 entry denying his motion for release as moot. For the reasons
that follow, we find appellant's appeal is moot as he has already served the 12-day sentence
imposed by the trial court.
1 Counsel for appellee waived its right to appear for oral hearing. (July 26, 2022 Notice.)
Nos. 22AP-52 and 22AP-55 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This court set forth the facts and procedural history of this matter in Craig v.
Gilchrist, 10th Dist. No. 19AP-804, 2021-Ohio-2199 ("Craig I") writing:
Appellant was obligated to pay $204 weekly, plus $50 per
week, pursuant to a child support order issued in New Jersey
for support of his minor child.2 Because appellant resides in the
state of Ohio, the support order was forwarded to Ohio to be
registered for purposes of enforcement. On May 3, 2017,
appellant filed a "notice of contest of registration" ("contest").
The magistrate held a hearing on appellant's contest on
October 31, 2017. Ultimately, in a judgment entry issued
November 6, 2017, the magistrate determined appellant's due
process rights were not violated for lack of service and further
that appellant failed to meet his burden of proof so as to defeat
the registration of the child support order in Ohio. The
magistrate overruled appellant's contest and ordered the New
Jersey child support order registered in Ohio for enforcement.
The trial court adopted the magistrate's decision the same day.
Despite having argued at the hearing that his due process rights
were violated due to insufficient service, appellant neither filed
an objection to the magistrate's decision nor an appeal of the
November 6, 2017 judgment entry.
Appellant failed to make any payments of child support and, on
September 11, 2018, plaintiff-appellee, Franklin County Child
Support Enforcement Agency ("FCCSEA"), filed a motion to
have appellant found in contempt for failure to comply with the
child support order and to determine and liquidate appellant's
child support arrearage. Appellant was personally served by
process server with FCCSEA's motion on October 9, 2018.
Counsel for appellant filed a request for discovery.
On November 29, 2018, the magistrate held a hearing on
FCCSEA's motion. Appellant appeared along with his counsel.
Appellant did not testify nor did he raise argument related to
service of the registration of the New Jersey order. On
December 20, 2018, the magistrate issued a decision finding
appellant in contempt and sentencing him to 30 days in the
2 According to a registration statement certified on March 23, 2017 by a records custodian reflected in the
registration of foreign order request, appellant's child support obligation is stated to be $204 per week, plus
"$50 p/w," which this court will assume means "per week" when comparing the statement to a cost of living
adjustment order dated December 15, 2014 that provides appellant is ordered to pay $203 per week, effective
December 17, 2014, plus $50 weekly for arrears payback. The record reflects that New Jersey increased
appellant's child support obligation in accord with a cost of living adjustment from $203 per week to $204
per week. However, the magistrate stated in findings regarding the contempt proceedings that appellant's
weekly obligation was $203 per week as child support.
Nos. 22AP-52 and 22AP-55 3
Franklin County Jail. The magistrate recommended
suspending the entire sentence on the condition that appellant
purge the contempt by liquidating the support arrearage of
$48,246.60 (as of June 30, 2018) at the rate of $50.00 per
month, plus processing charge, until arrears are fully
liquidated. The magistrate's decision also maintained the order
to appear and show cause. The magistrate continued the matter
until January 24, 2019 for a review of the purge order before
the trial court.3 The trial court adopted the magistrate's
decision the same day. Appellant filed neither an objection to
the magistrate's decision nor an appeal of the December 20,
2018 judgment entry.
The record reflects 11 review hearings were held before the trial
court for review of appellant's compliance with the purge order
found in the December 20, 2018 judgment entry. The record
also reflects appellant was placed with the Compass Program
("Compass") to assist him with finding employment.
On June 27, 2019, appellant appeared for a review hearing
before the trial court. At the conclusion of the hearing the trial
court issued an entry sentencing appellant to serve 3 days and
suspending 27 days of the 30-day sentence. The matter was
continued for further review before the trial court. No appeal
was filed by appellant.
Appellant again appeared before the trial court on August 8,
2019 for a review hearing that concluded with the trial court
issuing an entry ordering appellant to serve 5 additional days
of the suspended sentence and suspending 22 days of the 30-
day sentence. The matter was continued for further review
before the trial court. Once again, no appeal was filed by
appellant.
Appellant was scheduled to appear for a review hearing before
the trial court on October 24, 2019. The record reflects that
although the hearing was scheduled for 9:00 a.m., as of 11:00
a.m. appellant had not appeared. The trial court went on the
record in the matter at 11:00 a.m. and counsel for FCCSEA
requested issuance of a capias to secure appellant's presence.
In response, counsel for appellant informed the trial court her
client had a medical procedure and was trying to appear. The
trial court noted appellant had a habit of appearing at 1:30 p.m.
and held the matter open until the afternoon docket in the
event he appeared.
3 Appellant signed a waiver of service of summons and notice of hearing for the January 24, 2019 hearing.
Nos. 22AP-52 and 22AP-55 4
Appellant did appear with counsel the same afternoon for the
review hearing. According to counsel for FCCSEA, appellant
had not made a single payment to FCCSEA and, as of the date
of the hearing, arrears totaled $61,056.60. Counsel for
appellant stated two payments had been made by appellant
since September 17, 2019, one for $10.00 and a second for
$50.00; however, both were paid in New Jersey and not the
matter at bar. Counsel for appellant suggested there may be
confusion on appellant's part as to where his obligation should
be paid. Counsel for FCCSEA did not dispute appellant made a
$10.00 payment, however, maintained appellant had not made
a single payment in Ohio through FCCSEA.
Counsel for FCCSEA also noted appellant was placed in the
Compass and several review hearings were held regarding
appellant's participation in the program. Transcripts from
prior hearings indicate appellant did not work with Compass
providers and did not comply with orders from Compass. The
trial court inquired as to why appellant was not fully employed
despite numerous referrals and an application filed with a
temporary agency at the court. Appellant's counsel noted
appellant had become a substitute teacher with the Columbus
Diocese, but that appellant relied on public transportation
which interfered with his ability to work on weekends. The trial
court's statements during the hearing reflect the trial court was
well acquainted with appellant's case and defenses as to why
appellant was not yet gainfully employed were not well taken.
Counsel for FCCSEA also stated appellant filed an erroneous
entry on September 9, 2019 that had to be vacated by Judge
Hawkins.
Ultimately, the trial court issued a judgment entry ordering
appellant to serve 10 additional days of the suspended sentence
and suspending the remaining 12 days of the 30-day sentence.
Craig I at ¶ 2-11
{¶ 3} In Craig I, appellant asserted three assignments of error regarding the trial
court's initial entry ordering him to serve 10 days in the Franklin County Jail. On June 29,
2021, this court found that appellant's arguments as to sufficiency of service and lack of
jurisdiction were without merit, and appellant's remaining arguments on appeal were moot
as he had already served the 10-day sentence imposed by the trial court. Id. at ¶ 12, 23.
Appellant filed an appeal with the Supreme Court of Ohio, which was not accepted for
review. C.S. v. G.T., 165 Ohio St.3d 1456, 2021-Ohio-4033 (Nov. 23, 2021).
Nos. 22AP-52 and 22AP-55 5
{¶ 4} The trial court set review hearings on October 22, 2020, November 19, 2020,
February 2, 2021, June 1, 2021, October 5, 2021, and December 21, 2021. At the
December 21, 2021 review hearing, the trial court ordered appellant to serve an additional
12 days in the Franklin County Jail.4 On December 27, 2021, appellant filed a motion for
release. On January 19, 2022, the trial court issued a decision and judgment entry denying
appellant's motion as moot as he had already served the 12-day term of incarceration.
{¶ 5} On January 19, 2022, appellant filed a notice of appeal from the December 21,
2021 entry that ordered him to serve 12 days in jail for contempt of court. Appellant also
filed a notice of appeal from the trial court's January 19, 2022 final judgment entry denying
his motion for release as moot. These matters were consolidated on appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following as trial court error:
I. As an evasive recurring matter of public importance, the trial
court denied the federally mandated due process and equal
procedural protection under Title IV-D of the Social Security
Act, 45 C.F.R. 303.6(c)(4-5) and O.A.C. 5101:12-50-50(D), in
violation of the Due Process and Equal Protection Clauses of
the Ohio and U.S. Constitutions.
II. As an evasive recurring matter of public importance, the
trial court abused discretion by swerving from the federally
mandated procedural due process protections for Title IV-D
civil contempt proceedings, under 45 C.F.R. 303.6(c)(4-5) and
O.A.C. 5101:12-50-50(D), in violation of the Due Process
Clauses of the Ohio and U.S. Constitutions.
III. As a live matter, the trial court committed an
unconstitutional partial taking from the child with the
imposition of the suspended civil sentence upon the
noncustodial parent.
IV. As a live matter, the trial court was without subject matter
jurisdiction to infringe upon the fundamental rights of the child
and noncustodial parent by interfering with custody with the
imposition of the suspended civil sentence, R., 186.
V. The determination of non-compliance with the civil purge
conditions was plain reversible error when the proffered
evidence revealed compliance.
4We note that appellant was given five days of jail time credit from July 30, 2021 to August 3, 2021 when he
was picked up for a capias in this matter. (Dec. 21, 2021 Jgmt. Entry.)
Nos. 22AP-52 and 22AP-55 6
VI. The purge condition of the continuance order was void, in
part, for enjoining future conduct, permitted under the Full
Faith and Credit for Child Support Orders Act and 45 C.F.R.
VII. The trial court was divested of jurisdiction while a
discretionary appeal regarding the same Title IV-D matter of
re-imposing a civil contempt sentence remained before the
Supreme Court of Ohio.
VIII. In violation of due process, plain error is evident from the
timestamp of electronic filing of the judgment entry and the
unverified timestamp of the purge hearing.
IX. Cumulative error by the trial court has prejudiced the
Appellant's substantive rights as well as deprived Appellant of
fundamentally fair proceedings, from the following errors:
defective and imperfect service of process, disability under the
Americans with Disabilities Act, 42 U.S.C. 12132 et seq.,
erroneous adverse inference, denial of full faith and credit of
appellate proceedings, improper vacating of a valid order,
failure of lifting a capias.
(Sic passim.)
III. LEGAL ANALYSIS
A. Appellant's First through Ninth Assignments of Error
{¶ 7} Appellant appeals from the trial court's December 21, 2021 entry ordering
him to serve 12 days in jail as well as its January 19, 2022 judgment entry denying his
motion for release as moot. In Craig I, we set forth the law regarding contempt in Ohio
writing:
" 'Contempt is a disregard of, or disobedience to, an order or
command of judicial authority.' " Epitropoulos v.
Epitropoulos, 10th Dist. No. 10AP-877, 2011-Ohio-3701, ¶ 33,
quoting Wesley v. Wesley, 10th Dist. No. 07AP-206, 2007-
Ohio-7006, ¶ 10, citing Sansom v. Sansom, 10th Dist. No.
05AP-645, 2006-Ohio-3909. "In a case of civil contempt, '[t]he
purpose of sanctions, including punishment, is not for the
purpose of punishment, but rather for the purpose of
encouraging or coercing a party in violation of the decree to
comply with the violated provision of the decree for the benefit
of the other party.' " Id., quoting Williamson v. Cooke, 10th
Dist. No. 05AP-936, 2007-Ohio-493, ¶ 11, citing Pugh v. Pugh,
15 Ohio St.3d 136, 139, 15 Ohio B. 285, 472 N.E.2d 1085 (1984).
" 'Moreover, a sanction for civil contempt must allow the
contemptnor [sic] the opportunity to purge himself of the
contempt prior to imposition of any punishment.' " (Emphasis
Nos. 22AP-52 and 22AP-55 7
sic.) Id., quoting Williamson, citing O'Brien v. O'Brien, 5th
Dist. No. 2003CA12069, 2004-Ohio-5881. Therefore, so long
as the contemnor obeys the trial court's order, "prison
sentences are conditional." Id., citing Brown v. Executive 200,
Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980). When a
defendant has made a payment or otherwise purged
the contempt, an appeal from the contempt charge is moot. Id.
at ¶ 34.
Craig I at ¶ 21.5
{¶ 8} As an initial matter, we must address whether appellant's appeals are moot.
The mootness doctrine is rooted the "case" or "controversy" language in Section 2, Article
III of the United States Constitution and in the general notion of judicial restraint. Everhart
v. Coschocton Cty. Mem. Hospital, 10th Dist. No. 21AP-74, 2022-Ohio-629, ¶ 53, citing
Bradley v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 10AP-567, 2011-Ohio-1388,
¶ 11, quoting James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791 (10th Dist.1991). A
case is deemed moot if " 'they are or have become fictitious, colorable, hypothetical,
academic or dead. The distinguishing characteristic of such issues is that they involve no
actual genuine, live controversy, the decision of which can definitely affect existing legal
relations.' " (Internal quotations and citations omitted.) Everhart at ¶ 53, quoting Doran
v. Heartland Bank, 10th Dist. No. 16AP-586, 2018-Ohio-1811, ¶ 12. It is not the purpose of
an appellate court to address purely academic or abstract questions. Id. at ¶ 13, citing
James A. Keller, Inc. at 791. We must dismiss an appeal that is moot if it no longer presents
5In Craig I, we set forth the standard of review for a reviewing court when examining a trial court's finding of
contempt stating:
"An appellate court will not reverse a trial court's finding of contempt, including the
imposition of penalties, absent an abuse of discretion." Sansom at ¶ 30, citing Byron v.
Byron, 10th Dist. No. 03AP-819, 2004-Ohio-2143, ¶ 15. "An abuse of discretion is more than
an error of law or judgment; it implies an attitude on the part of the trial court that is
unreasonable, unconscionable, or arbitrary." Id., citing State v. Myers, 97 Ohio St.3d 335,
2002-Ohio-6658, ¶ 75, 780 N.E.2d 186, citing State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980). "Furthermore, when applying this standard of review, an appellate court
may not substitute its judgment for that of the trial court." Id., citing In re Jane Doe I, 57
Ohio St.3d 135, 137-38, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53 Ohio St.3d 161,
169, 559 N.E.2d 1301 (1990). " '[T]he primary interest involved in a contempt proceeding is
the authority and proper functioning of the court, [and therefore] great reliance should be
placed upon the discretion of the [court].' " State ex rel. Cincinnati Enquirer v. Hunter, 138
Ohio St.3d 51, 2013-Ohio-5614, ¶ 29, 3 N.E.3d 179, quoting Denovchek v. Trumbull Cty. Bd.
of Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988).
Craig I at fn. 7.
Nos. 22AP-52 and 22AP-55 8
a justiciable controversy. Grove City v. Clark, 10th Dist. No. 01AP-1369, 2002-Ohio-4549,
¶ 11.
{¶ 9} In the case sub judice, appellant has appealed from an entry ordering him to
serve 12 days in jail as well as from an entry denying his motion for release from jail. There
is no dispute that appellant has served the entirety of the 12-day term of incarceration.
Because appellant has served the entirety of his sentence, we find appellant's appeal is
moot.
{¶ 10} Appellant contends that this matter meets the available exceptions to the
mootness doctrine. We disagree. This court has recognized two established exceptions to
the mootness doctrine, " '(1) an issue that is capable of repetition, yet evades review, or (2)
a debatable constitutional question yet to be resolved or issues concerning a matter of great
public or general interest.' " Craig I, quoting Rithy Props., Inc. v. Cheeseman, 10th Dist.
No. 15AP-641, 2016-Ohio-1602, ¶ 20, citing In re L.W., 168 Ohio App.3d 613, 2006-Ohio-
644, ¶ 12 (10th Dist.). Regarding the first exception, the Supreme Court recently wrote,
"[t]he mootness exception for cases that are capable of repetition, yet evading review
applies only in exceptional circumstances, when these two factors are both present: (1) the
challenged action is too short in its duration to be fully litigated before its cessation or
expiration and (2) there is a reasonable expectation that the same complaining party will
be subject to the same action again." (Internal citations omitted.) State ex rel. Burkons v.
Beachwood, __Ohio St.3d__, 2022-Ohio-748, ¶ 17. Upon review, we are not persuaded
that appellant's arguments meet the first exception to the mootness doctrine. As was the
case in Craig I, "[s]hould appellant be subject to the imposition of more jail time on the
remaining days of his suspended 30-day sentence, the circumstances and facts on which a
new sentence may be imposed would be different than those forming the basis of
appellant's imposed sentence from which he appeals here." Craig I at ¶ 27. See also Id.,quoting Catudal v. Catudal, 10th Dist. No. 12AP-951, 2013-Ohio-2748, ¶ 25 ("the exception
for 'capable of repetition, yet evading review' does not apply here because any new stay will
necessarily involve a different set of circumstances and determinations than those forming
the basis of the first stay"). While appellant received a new sentence, it was based on
different facts and circumstances from Craig I. Accordingly, we find appellant's argument
Nos. 22AP-52 and 22AP-55 9
as to the applicability of the "capable of repetition, yet evades review" exception
unpersuasive.
{¶ 11} We are also not persuaded that the second exception regarding matters of
"great public or general interest" applies in this case. This court has stated that any
circumstance that involves the application of the "general public or general interest"
exception tends to fall within the purview of the Supreme Court rather than for an
intermediate court such as this one. Ashley v. Kevin O'Brien & Assoc. Co., L.P.A., 10th Dist.
No. 20AP-354, 2022-Ohio-24, ¶ 35, citing Doe v. Upper Arlington Bd. of Edn., 10th Dist.
No. 21AP-31, 2021-Ohio-3805, ¶ 8. As such, we decline to apply the "great public or general
interest" exception in this case. Appellant has also put forth a series of constitutional
arguments. As these arguments concern the purge conditions from the December 21
hearing, we find these arguments are moot as appellant has served the entirety of his 12-
day sentence in the Franklin County Jail. Arguendo, even if these claims were not moot,
appellant failed to raise these arguments before the trial court at the December 21, 2021
hearing or in his December 27, 2021 motion for release. "In general, an appellate court will
not consider any error that an appealing party could have called, but did not call, to the trial
court's attention at a time when the trial court could have avoided or corrected the error."
State v. Harris, 10th Dist. No. 08AP-723, 2009-Ohio-1188, ¶ 3, citing State v. Childs, 14
Ohio St.2d 56, paragraph three of the syllabus (1968). As such, appellant is raising these
arguments for the first time on appeal. State v. Trewartha, 10th Dist. No. 05AP-513, 2006-
Ohio-5040, ¶ 28, citing State v. Awan, 22 Ohio St.3d 120 (1986), paragraph three of the
syllabus. As was the case in Craig I, appellant's constitutional arguments were not
preserved as they were first asserted on appeal, and we decline to address them at this time.
Id. at ¶ 27.6
6We note that appellant's constitutional arguments are nearly identical to the arguments asserted in Craig I.
Compare, supra, at ¶ 7 with:
I. The Imposition of the Suspended Sentence Has Adverse Collateral Effects That Are Violative
of the Takings Clause of the Fifth Amendment of the United States Constitution and That
Impair the Fundamental Rights of the Child and Parent to the Care and Support of the Child
as well as Infringe Upon the Right of Freedom from State Action That Jeopardizes That Care
and Support under the Due Process Clauses of the Fourteenth Amendment to the U.S.
Constitution and Article I, Section 16, of the Ohio Constitution as well as under the Ninth
Amendment of the United States Constitution and Article I, Section 20 of the Ohio
Constitution.
Nos. 22AP-52 and 22AP-55 10
{¶ 12} Appellant has also argued the trial court lacks personal jurisdiction in this
case. We rejected an analogous argument in Craig I writing:
Here, after holding the October 31, 2017 evidentiary hearing, at
which appellant testified, the magistrate rejected appellant's
argument that the registration was invalid. The magistrate
found appellant's due process rights had not been violated. The
magistrate specifically held "[r]espondent did not prove any of
the offenses that are listed in [R.C.] 3115.607(A), that would
justify not registering New Jersey's child support order for
enforcement in the State of Ohio." (Nov. 6, 2017 Mag.'s
Decision at 1.) The magistrate's decision reflects her decision to
issue an order to "[r]egister New Jersey's child support order
in Ohio for enforcement." (Nov. 6, 2017 Mag.'s Decision at 1.)
The same day, the trial court adopted the magistrate's decision.
Appellant did not file objections to the magistrate's decision.
Appellant also did not appeal the trial court's decision adopting
the same. R.C. 3115.608 states: "[c]onfirmation of a registered
support order, whether by operation of law or after notice and
hearing, precludes further contest of the order with respect to
any matter that could have been asserted at the time of
registration." The New Jersey registered child support order
has been confirmed and appellant is now precluded from
further contest of the order.
A. Substantive Due Process Affords Heightened Protection Against State Action That Infringes
Upon Fundamental Rights Secured by the Constitution of the United States.
B. The Rights of the Child and Noncustodial Parent Have Protection under Due Process.
C. The Child Has a Right to the Care and Support from the Noncustodial Parent as well as a
Right of Freedom from State Action That Jeopardizes That Care and Support.
D. The Imposition of the Suspended Sentence Had an Adverse Collateral Effect Upon a Source
of Income for the Child without Compensation to the Child.
E. The Imposition of the Suspended Sentence Infringed upon Joint Legal Custody and
Interfered with Interstate Travel.
F. Fundamental Parental Rights Are Afforded Protection under the Ninth Amendment of the
United States Constitution as well as under the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution.
II. With Applying the Wrong Legal Standard, the Trial Court Erred as a Matter of Law in
Imposing the Suspended Sentence When the Defendant Had Substantially Complied with
the Purge Conditions Adopted 12/20/2018 and revised 09/09/2019.
A. By Preponderance of the Evidence, There Was Compliance with the Purge Conditions.
B. As a Matter of Law, the Judge Applied the Wrong Standard for the Burden of Proof.
C. The Never-Journalized Oral Order Was Not a Valid Purge Condition.
D. This Is a Live Matter, with a Constitutional Question, Capable of Repetition that Evades
Review.
III. Cumulative Error by the Trial Court Infringed Upon Substantive Rights and Prejudiced the
Proceedings Thereby Denying Fundamentally Fair Hearings.
(Sic passim.) (Sept. 10, 2020 Appellant's Brief.)
Nos. 22AP-52 and 22AP-55 11
***
If we were to analyze the procedural history and facts within
the framework appellant urges, we would find the contest filed
by appellant on May 3, 2017 did not present any specific
affirmative defenses, including insufficiency of service of
process or lack of personal jurisdiction, contrary to the
mandates of Civ.R. 12(B). Therefore, appellant waived the
defense of insufficient service and lack of personal jurisdiction.
Civ.R. 12(H). Moreover, appellant filed his contest to defend
against the ROFO and had the opportunity to participate in the
October 31, 2017 proceedings regarding his contest of the
ROFO; therefore, appellant was not deprived of procedural due
process by the trial court in registering the ROFO. See Kvinta
at ¶ 62.
Appellant acknowledges the potential for waiver but asserts his
participation in the October 31, 2017 hearing was not a waiver
of the defense of insufficiency of service of process. Even
assuming, arguendo, it was not, we have held: " 'a defendant is
considered to have waived his defense of lack of personal
jurisdiction when his conduct does not reflect a continuing
objection to the power of the court to act over the defendant's
person.' " (Emphasis added.) Harris at ¶ 10, citing Nichols,
Rogers & Knipper LLP v. Warren, 2d Dist. No. 18917, 2002-
Ohio-107 (Jan. 11, 2002). Appellant did not assert affirmative
defenses in accord with Civ.R. 12 when he filed his contest, nor
did he continue objections, if any, to sufficiency of service after
the magistrate registered the ROFO by filing an objection to the
November 6, 2017 magistrate's decision or appealing the trial
court's adoption of the same. See Loc.R. 32(C) of the Court of
Common Pleas of Franklin County, Domestic Relations
Division and Juvenile Branch, Civ.R. 12(B)(2) and (B)(5), and
53(D)(3)(b); See also Lundeen v. Turner, __ Ohio St.3d __,
2021-Ohio-1533, ¶ 22. Thereafter, appellant, through counsel,
requested discovery related to FCCSEA's contempt filing,
appeared before the trial court for a hearing on FCCSEA's
contempt proceeding and appeared before the trial court in
numerous review hearings. Not once during appellant's
participation in the aforementioned trial court proceedings did
he raise argument related to insufficiency of service of process.
Craig I at ¶ 19, fn. 6.
{¶ 13} Upon review, even after our ruling in Craig I, appellant failed to raise these
jurisdictional arguments at any of the review hearings. Accordingly, on the authority of
Craig I, we find appellant's personal jurisdiction argument without merit.
Nos. 22AP-52 and 22AP-55 12
{¶ 14} Appellant contends that because he filed an appeal to the Supreme Court, the
trial court did not have jurisdiction to order him to serve an additional 12 days in the
Franklin County Jail.
{¶ 15} Simultaneous with the filing of a notice of appeal, "an appellant may seek an
emergency motion for a stay of execution of the contempt punishment." State ex rel.
Hassink v. McFaul, 8th Dist. No. 77400, 1999 Ohio App. LEXIS 6357 (Dec. 21, 1999),
citing R.C. 2705.09; App.R. 7. App.R. 7(A) requires that a request for a stay must be first
made with the trial court unless there is a justifiable reason for not doing so. Moreover,
R.C. 2705.09 states "[a]ppeal proceedings shall not suspend execution of the order or
judgment until the person in contempt files a bond in the court rendering the judgment, or
in the court or before the officer making the order, payable to the state, with sureties to the
acceptance of the clerk of that court, in an amount fixed by the reviewing court, or a judge
thereof, conditioned that if judgment is rendered against such person he will abide by and
perform the order or judgment." In the instant case, we rendered our decision in Craig I
on June 29, 2021. Appellant filed an appeal to the Supreme Court on September 7, 2021.
On November 23, 2021, the Supreme Court declined to hear appellant's appeal in the case.
See C.S. v. G.T., 165 Ohio St.3d 1456, 2021-Ohio-4033 (Nov. 23, 2021)7. Appellant failed to
file a motion to stay with any court of the underlying order. While the trial court "lacks
jurisdiction to execute a judgment or contempt proceedings regarding the judgment if there
is a stay of the judgment pending appeal," there was no stay of the judgment in this case.
State ex rel. State Fire Marshal v. Curl, 87 Ohio St.3d 568, 570, 2000-Ohio-248 (2000),
citing In re Kessler, 90 Ohio App.3d 231 (6th Dist.1993); see also Curl, citing Oatey v.
Oatey, 83 Ohio App.3d 251, 257 (8th Dist.1992) ("the mere filing of a notice of appeal from
the order * * * does not divest the * * * court of jurisdiction to enforce an interlocutory or
final order pending appeal unless the party is granted a stay of execution of the order."
(Emphasis removed.) Absent such a stay, the trial court retains jurisdiction to enforce its
orders. Moreover, regardless of whether a stay was in place for the order at issue in Craig
I, this case concerns two separate orders based on difference facts and circumstances.
Accordingly, appellant's argument regarding lack of jurisdiction is without merit.
7 The Supreme Court denied appellant's motion for reconsideration on February 1, 2022.
Nos. 22AP-52 and 22AP-55 13
{¶ 16} Appellant argues that by filing his motion for release he demonstrated that
he had "no intention to acquiesce to imposed civil sentence and preserved the same matters
for appellate review." (Appellant's Brief at 65.) Appellant also argues that, during the
December 21, 2021 hearing, appellant "requested a stay by asking the Judge for a delay of
enforcement while Appellant persisted with seeking employment at the Catholic high
school in Jersey City, New Jersey." (Appellant's Brief at 65-66.) We disagree. Appellant
failed to file a motion to stay of the trial court proceeding. A vague request to delay
reporting in anticipation of a call from a potential employer is not equivalent to filing a
motion to stay pending appeal.8
IV. CONCLUSION
{¶ 17} Having overruled deemed appellant's jurisdiction argument and appellant's
appeal to be moot, this appeal is dismissed.
Appeal dismissed.
KLATT, and SADLER, JJ., concur.
_____________
8 Appellant contends that this court lacks subject matter jurisdiction to interfere with the New Jersey court’s
reunification therapy. R.C. 2151.23 defines the subject matter jurisdiction of juvenile courts in Ohio. Upon
review, we find that this court has jurisdiction on the child support order. While appellant now claims on
appeal that New Jersey has exclusive jurisdiction in this matter, counsel for appellant conceded at the October
22, 2020 hearing that "[appellant's] order is enforced here, it's not modifiable by this Court, so he had to
pursue modification back in New Jersey, which he did." (Oct. 22, 2020 Hearing at 4.) In Craig I, we explained:
Here, the New Jersey court is the "issuing tribunal," and the state of Ohio, Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is the "registering
tribunal." Pursuant to R.C. 3115.603(A), once the New Jersey child support order to which
appellant was subject was filed in the Ohio trial court, it was registered. R.C. 3115.605(A)
states in relevant part that "[w]hen a support order or income-withholding order issued in
another state or a foreign support order is registered, the registering tribunal of this state
shall notify the nonregistering party. The notice must be accompanied by a copy of the
registered order and the documents and relevant information accompanying the order."
(Emphasis added.) Therefore, once the New Jersey child support order was registered with
the trial court, the trial court was required to notify appellant, the non-registering party. As
noted above, the record reveals the trial court notified appellant.
Craig I at ¶ 18.