Dreisilker v. Carrelli

[Cite as Dreisilker v. Carrelli, 2016-Ohio-342.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
MICHELLE DREISILKER, :
CASE NO. CA2015-06-052
Plaintiff-Appellee, :
OPINION
: 2/1/2016
- vs -
:
CHRISTOPHER CARRELLI, :
Defendant-Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 10-S03490
Michelle Dreisilker, 5251 Venetian Way, Morrow, Ohio 45152, plaintiff-appellee, pro se
Dever Law Firm, Scott Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069,
for defendant-appellant, Christopher Carrelli
David P. Fornshell, Warren County Prosecuting Attorney, 520 Justice Drive, Lebanon, Ohio
45036, for Warren County CSEA
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Christopher Carrelli, appeals from the decision of the
Warren County Court of Common Pleas, Juvenile Division, finding him in contempt for failing
to pay his court ordered child support obligations to plaintiff-appellee, Michelle Dreisilker. For
the reasons outlined below, this appeal is dismissed.
Warren CA2015-06-052
{¶ 2} Carrelli and Dreisilker are the biological parents of L.D., born August 21, 2009.
On February 19, 2010, the trial court issued a child support order requiring Carrelli to pay
monthly child support to Dreisilker, as well as 53 percent of any additional uninsured medical
expenses above the first $100 that their son may incur. The trial court's child support order
also provided, in pertinent part:
The individual who is to be reimbursed for out-of-pocket medical
* * * expenses paid for the parties' minor children is the person
who incurred the expense. Absent unusual circumstances, or
court order to the contrary, request for reimbursement of health
care expenses should be made within 30 days of the date when
payment is made or due. Reimbursement should be made with
30 days of the request.
{¶ 3} On September 12, 2013, Dreisilker filed a motion for contempt against Carrelli
alleging Carrelli had not paid his portion of their son's medical expenses. Thereafter, on
October 3, 2013, Dreisilker filed an amended motion for contempt and a motion to compel
discovery. A hearing on Dreisilker's motions was then held before a magistrate on December
9, 2013, during which the parties agreed that Carrelli would pay $400 to reimburse Dreisilker
for her attorney fees in exchange for her various motions being dismissed. The magistrate
accepted the parties' agreement and issued a decision on the matter later that day. Carrelli
subsequently mailed $399.76 in one dollar bills, quarters, and other change to Dreisilker.
{¶ 4} On May 5, 2014, Dreisilker filed a renewed motion for contempt alleging Carrelli
had still not paid his portion of their son's medical expenses, a motion she later amended on
June 4, 2014. A hearing was then held before a magistrate on October 28, 2014. At the
hearing, the magistrate heard testimony from both Dreisilker and Carrelli, which included
uncontroverted testimony that Carrelli had not paid his portion of their son's medical
expenses and that he now owed child support arrearages in the amount of $11,821.54.
{¶ 5} On November 6, 2014, the magistrate issued a decision finding Carrelli in
contempt for failing to pay his child support obligations. Carrelli then filed objections to the
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magistrate's decision, which the trial court denied on February 18, 2015. In so holding, the
trial court found Carrelli had not made a timely child support payment to Dreisilker in over a
year. In addition, as it relates to Carrelli's failure to pay his portion of his son's medical
expenses, the trial court found:
Since [Carrelli] received [L.D.'s] medical bills he has been given
ample time to reimburse [Dreisilker] but he has chosen not to.
Instead, [Carrelli] alleges that [Dreisilker] never provided him with
the actual bills. [Carrelli] also claims he should not have to pay
because [Dreisilker] did not request reimbursement in a timely
manner.
While the Court recognizes that not all the bills were presented to
[Carrelli] within thirty days of payment as the court order
provides, nothing precludes the Court from finding [Carrelli]
accountable for a portion of these expenses. [Dreisilker] is
simply requesting that [Carrelli] assist in the paying for [their
son's] routine medical costs that her insurance does not cover.
Additionally, the Court finds that there were unusual
circumstances that prevented [Dreisilker] from contacting
[Carrelli]. The parties were eventually ordered to only
communicate via Family Wizard, a program which facilities the
exchange of information regarding the minor child. [Carrelli]
failed to register for said program.
The trial court also found it clear that Carrelli's previous $400 payment to Dreisilker following
the December 9, 2013 motion hearing was for "attorney fees" and that the "record even
explains that [Carrelli] has outstanding medical expenses he owes [Dreisilker] that could be
the subject of future litigation."
{¶ 6} After finding Carrelli in contempt, the trial court recommended Carrelli be
sentenced to ten days in jail. The trial court further determined that Carrelli could purge the
contempt charge by (1) making all his child support payments in full and on time, (2) paying
an additional $1,000 towards his child support arrearages, and by (3) providing Dreisilker
with $1,210.62 to reimburse her for her attorney fees and his portion of their son's medical
expenses. A final sentencing and purge hearing was scheduled for May 28, 2015. However,
rather than filing a timely notice of appeal from the trial court's decision finding him in
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contempt, Carrelli appeared at the May 28, 2015 hearing and purged himself of the contempt
charge. The next day, May 29, 2015, Carrelli filed a notice of appeal from the trial court's
decision finding him in contempt, raising the following two assignments of error for review.
{¶ 7} Assignment of Error No. 1:
{¶ 8} IN A CHILD SUPPORT MATTER, THE TRIAL COURT ERRED IN ADOPTING
THE DECISION OF THE MAGISTRATE FINDING CLEAR AND CONVINCING EVIDENCE
TO HOLD FATHER IN CONTEMPT FOR NON-PAYMENT OF MEDICAL BILLS.
{¶ 9} Assignment of Error No. 2:
{¶ 10} IN A CHILD SUPPORT CONTEMPT MATTER, THE TRIAL COURT ERRED IN
FAILING TO CONSIDER THE CHANGE IN FINANCIAL CIRCUMSTANCES OF THE
FATHER.
{¶ 11} In his first assignment of error, Carrelli argues the trial court erred by finding
him in contempt for failing to pay his portion of his son's medical expenses. Carrelli also
argues the trial court erred by not providing him with a $400 credit on his son's medical
expenses he claims he already paid to Dreisilker following the December 9, 2013 motion
hearing. Thereafter, in his second assignment of error, Carrelli argues the trial court erred by
failing to consider his decreased income prior to finding him in contempt.
{¶ 12} "Disobedience to court orders may be punished by contempt." Cottrell v.
Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 11; R.C. 2705.02(A). To
support a contempt finding, 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. Hetterick v. Hetterick, 12th Dist. Brown No.
CA2012-02-002, 2013-Ohio-15, ¶ 35. In reviewing a trial court's finding of contempt, an
appellate court will not reverse such a finding absent an abuse of discretion. Grow v. Grow,
12th Dist. Butler Nos. CA2010-08-209, CA2010-08-218, and CA2010-11-301, 2012-Ohio-
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1680, ¶ 73. An abuse of discretion means more than an error of judgment; it implies that the
trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 13} At the outset, and in an effort to avoid any future confusion as to the proper
time to file an appeal from a trial court's contempt order, we note that "a court order finding a
party in contempt and imposing a sentence conditioned on the failure to purge is a final,
appealable order on the issue of whether the party is in contempt of court." Docks Venture,
L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, ¶ 23. Pursuant
to App.R. 4(A), "a party who wishes to appeal from an order that is final upon its entry shall
file the notice of appeal required by App.R. 3 within 30 days of that entry." However, a
separate right of appeal may exist where a contemnor wishes to challenge "whether the
purge conditions have been met following execution of sentence on the failure to purge."
Docks Venture.
{¶ 14} In this case, Carrelli was found in contempt on February 18, 2015. The trial
court imposed a conditional sentence and offered Carrelli an opportunity to purge the
contempt charge. A final, appealable order was therefore issued. Id. at ¶ 21-23. Carrelli
could have, and should have, appealed the February 18, 2015 order if he wished to
challenge the trial court's underlying finding of contempt. He did not do so. Rather, Carrelli
waited to appeal the finding of contempt until after the final purge hearing was held on May
28, 2015. Therefore, by failing to timely appeal from the trial court's February 18 entry
finding him in contempt, Carrelli "waived his right to dispute the propriety of the contempt
order, as well as the purge conditions ordered by the court." Bostick v. Bostick, 2d Dist.
Champaign No. 2014-CA-22, 2015-Ohio-455, ¶ 13.
{¶ 15} Moreover, as the record reveals, Carrelli complied with the trial court's purge
conditions and purged himself of the contempt charge. "An appeal from a finding of
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contempt becomes moot when the offender either purges himself of the contempt or serves
the sentence." Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-
782, ¶ 21; Columbus v. Cicero, 10th Dist. Franklin No. 12AP-407, 2013-Ohio-3010, ¶12;
Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 37; see also Docks
Venture, 2014-Ohio-4254 at ¶ 22 ("if Dashing Pacific had avoided the sanction by purging
the contempt, then it would have rendered its appeal moot"). Therefore, because Carrelli
complied with the trial court's purge conditions, thereby purging himself of the contempt
charge, we find this matter has also been rendered moot.
{¶ 16} Nevertheless, even if this matter was properly before this court, and should this
matter arise again, we would still find no merit to Carrelli's claims. For instance, Carrelli
argues the trial court erred by finding him in contempt for failing to pay his portion of his son's
medical expenses since Dreisilker never told him that any of his son's medical expenses had
become due. However, as the record reveals, Carrelli failed to pay any portion of his son's
medical expenses even after Dreisilker provided him with notice of those expenses,
something which the trial court found he had "ample time" to do.
{¶ 17} Furthermore, just like the trial court before us, we would find unusual
circumstances prevented Dreisilker from contacting Carrelli in order to request
reimbursement from him. This includes undisputed evidence that Carrelli never registered
for Family Wizard as specifically instructed by the trial court. As Dreisilker testified:
[DREISILKER'S TRIAL COUNSEL]: And there was an Order
down that the only way for you to communicate [with Carrelli]
was through the Family Wizard back in 2012, correct?
MS. DREISILKER.: Yes.
[DREISILKER'S TRIAL COUNSEL]: And he never signed up for
the Family Wizard?
MS. DREISILKER: Right.
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[DREISILKER'S TRIAL COUNSEL]: And so you never had an
opportunity to provide him with any medical bills?
MS. DREISILKER: Correct.
[DREISILKER'S TRIAL COUNSEL]: And that's how they were
supposed to be exchanged?
MS. DREISILKER: Yes.
Therefore, Carrelli's first argument would lack merit.
{¶ 18} Next, as it relates to Carrelli's claim the trial court erred by not providing him
with a $400 credit on his son's medical expenses following the December 9, 2013 motion
hearing, the record plainly shows that the $400 payment made by Carrelli to Dreisilker was to
reimburse Dreisilker for her attorney fees. Again, just as the trial court found, this fact was
explained to Carrelli on the record at that hearing. Therefore, Carrelli's second argument
would also lack merit.
{¶ 19} Finally, Carrelli argues the trial court erred by failing to consider his decreased
income prior to finding him in contempt. However, except for his own bare assertion claiming
his income had "pretty much gone down the tubes," Carrelli did not provide the trial court
with any evidence that he was unable to obtain any additional employment in order to meet
his child support obligations, nor did he provide any other evidence indicating his inability to
pay. See Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, ¶ 22. In fact, when
specifically asked if he had sought other employment opportunities, Carrelli testified "Um,
no." As the trial court correctly found, "[d]ue process does not allow the Court to modify
[Carrelli's] child support order in a pending contempt or objection proceeding." Therefore,
Carrelli's final argument would likewise lack merit.
{¶ 20} Appeal dismissed.
RINGLAND and HENDRICKSON, JJ., concur.
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