Babcock v. Babcock

[Cite as Babcock v. Babcock, 2021-Ohio-914.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SUSAN BABCOCK : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ROBERT BABCOCK : Case No. 2020 CA 0011
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 20740168
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 22, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SUSAN BABCOCK, PRO SE DIANA E. DUDGEON
2500 Glenview Way 201 North Main Street
Apt. 2500 P.O. Box 272
Coshocton, OH 43812 Urichsville, OH 44683
Coshocton County, Case No. 2020 CA 0011 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Robert Babcock, appeals the August 14, 2020
judgment entry nunc pro tunc of the Court of Common Pleas of Coshocton County,
Ohio, finding him in contempt for violating parenting time orders. Plaintiff-Appellee is
Susan Babcock.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties are parents of a child born in 2007. Appellant is the custodial
parent of the child and appellee has court-ordered parenting time. On October 2, 2019,
the trial court found appellant in contempt for violating prior visitation orders. The trial
court imposed fines and jail time, suspended upon appellant's strict compliance with the
purge conditions. The conditions required appellant to allow appellee eight make-up
visitations to be exercised on a Saturday or Sunday for 4 hours per session, at times,
dates, and locations of her choosing, and appellant was responsible to transport the
child to and from the visits.
{¶ 3} On January 3, 2020, appellee filed a motion to show cause for contempt,
alleging appellant failed to abide by the October purge conditions. A hearing was held
on July 17, 2020. By judgment entry nunc pro tunc filed August 14, 2020, the trial court
found appellant in contempt for failing to allow appellee her visitation time on November
10, 2019. The trial court imposed fines and jail time, suspended upon appellant's strict
compliance with the purge conditions. The conditions required appellant to not commit
any further acts of contempt and to strictly comply with all orders of the court.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Coshocton County, Case No. 2020 CA 0011 3
I
{¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT IN CONTEMPT OF THE COURT'S PARENTING TIME ORDERS WHEN
APPELLANT DEMONSTRATED THE IMPOSSIBILITY OF HIS COMPLIANCE WITH
THE COURT'S PURGE TERMS."
I
{¶ 6} In his sole assignment of error, appellant claims the trial court abused its
discretion in finding him in contempt of parenting time orders when it was impossible for
him to purge his contempt. We disagree.
{¶ 7} "A court has authority both under R.C. 2705.02(A) and on the basis of its
inherent powers to punish the disobedience of its orders with contempt proceedings."
Zakany. v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984). "The purpose of
sanctions in a case of civil contempt is to compel the contemnor to comply with lawful
orders of a court, and the fact that the contemnor acted innocently and not in intentional
disregard of a court order is not a defense to a charge of civil contempt." Windham
Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph three of the
syllabus. "It is irrelevant that the transgressing party does not intend to violate the court
order. If the dictates of the judicial decree are not followed, a contempt citation will
result." Pedone v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (8th Dist.1983).
{¶ 8} We review a contempt finding under an abuse of discretion standard.
Wadian v. Wadian, 5th Dist. Stark No. 2007CA00125, 2008-Ohio-5009, ¶ 12. In order
to find an abuse of discretion, we must determine 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, 450 N.E.2d 1140 (1983).
Coshocton County, Case No. 2020 CA 0011 4
{¶ 9} Per the October 2, 2019 trial court orders, appellant was responsible to
transport the child to and from the visits. Appellant admits he missed the November 10,
2019 visit, but argues he presented an impossibility defense and the trial court did not
carefully consider it.
{¶ 10} As explained by our colleagues from the Tenth District in Rife v. Rife, 10th
Dist. Franklin No. 11AP-427, 2012-Ohio-949, ¶ 10:
"Additionally, in a civil contempt proceeding, the movant bears the
initial burden of demonstrating by clear and convincing evidence that the
other party has violated an order of the court." Hopson [v. Hopson, 10th
Dist. Franklin No. 04AP-1349, 2005-Ohio-6468] at ¶ 19, citing Allen v.
Allen, 10th Dist. No. 02AP768, 2003-Ohio-954, ¶ 16. However, "[o]nce
the movant has met her burden, the burden shifts to the other party to
either rebut the showing of contempt or demonstrate an affirmative
defense by a preponderance of the evidence." Hopson, citing Pugh v.
Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085 (1984). Therefore, while
"[i]mpossibility is a defense to a contempt of court order, * * * it is
incumbent upon the party seeking to raise impossibility of compliance to
prove the defense by a preponderance of the evidence." Hopson at *5,
citing State ex rel. Cook v. Cook, 66 Ohio St. 566, 570, 64 N.E. 567(1902).
{¶ 11} "Preponderance of the evidence" is "evidence which is of greater weight or
more convincing than the evidence which is offered in opposition to it; that is, evidence
Coshocton County, Case No. 2020 CA 0011 5
which as a whole shows that the fact sought to be proved is more probable than not."
Black's Law Dictionary 1182 (6th Ed.1990).
{¶ 12} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552
N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶ 13} Appellant testified he was transporting the child to the scheduled visit
when the transmission to his vehicle "just quit." July 17, 2020 T. at 41. It happened
about fifteen minutes before the scheduled transfer and within a mile of the transfer
point. Id. at 42. Appellant did not expect to have any issues with his vehicle. Id. at 51.
He called a tow truck company and then called appellee and told her to come and pick
up the child because he was waiting on the tow truck. Id. at 42. Appellant testified
appellee did not believe him and called him a liar. Id. Appellee testified she never
received a phone call. Id. at 29-31. Appellant presented his Visa card statement
showing a charge from Prince's Wrecker Service with a transaction date of November
15, 2019, and a posting date of November 18, 2019. Id. at 43; Defendant's Exhibit A.
When questioned by the trial court on the discrepancies regarding the date of the towing
service in relation to the November 10, 2019 missed visitation, appellant agreed the
exhibit indicates he called the tow truck company, but does not indicate it happened on
the 10th. Id. at 52-54. Appellant could not find his towing receipt. Id. at 43. He
admitted his proof about having his vehicle towed on the 10th was his testimony. Id. at
54. He did not have the vehicle repaired as of the hearing date in July 2020. Id. at 46.
When questioned by the trial court as to why he did not walk the one mile to the transfer
Coshocton County, Case No. 2020 CA 0011 6
point, appellant stated it was cold, about 35 degrees, and raining. Id. at 57, 63. He told
the trial court he could walk a mile, "but it's not very easy for me. I'm 67 years old." Id.
at 59. Appellant made up for the missed visitation the very next weekend and provided
transportation. Id. at 47. Appellee could not remember if she received a make-up time
for the missed visit of November 10th. Id. at 35.
{¶ 14} In its August 14, 2020 judgment entry nunc pro tunc, the trial court found
appellant in contempt, stating: "The Father is found to have willfully violated the Court's
parenting time order on November 10, 2019 in failing to allow the Mother her time. The
Court finds that the Father's efforts on that date to transport the child to the visit were
insufficient." The trial court noted this was appellant's second contempt.
{¶ 15} In the October 2, 2019 order, the trial court found appellant in contempt for
willfully violating its orders on eight different occasions. The trial court imposed fines
and jail time which were suspended "upon Father's strict compliance with the purge
conditions." (Emphasis added.) The conditions required appellant to allow appellee
eight make-up visitations at times, dates, and locations of her choosing, and appellant
was responsible to transport the child to and from the visits. Another condition was that
appellant "shall commit no further acts of contempt"; yet he committed an act of
contempt one month later by failing to transport the child to the transfer point for
appellee's visitation. Although appellant argued the impossibility defense because his
vehicle had broken down, the trial court found his efforts to be insufficient.
{¶ 16} Based on the standards of review as cited above and the evidence
presented, we cannot say the trial court abused its discretion in finding appellant in
contempt. The trial court was in the best position to view the demeanor and attitude of
Coshocton County, Case No. 2020 CA 0011 7
the witnesses and determine their credibility. We cannot say appellant proved his
impossibility defense by a preponderance of the evidence.
{¶ 17} Upon review, we find the trial court did not err in finding appellant in
contempt.
{¶ 18} The sole assignment of error is denied.
{¶ 19} The judgment of the Court of Common Pleas of Coshocton County, Ohio
is hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
J. Wise, J. concur.
EEW/db