Delawder v. Dodson

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[Cite as Delawder v. Dodson, 2003-Ohio-2092.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY IN THE MATTER OF: KIMBERLY D. DELAWDER, : : Plaintiff-Appellee, : Case No. 02CA27 : vs. : : KEITH DODSON, : : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : : Released 4/17/03 ___________________________________________________________ APPEARANCES: David Reid Dillon, Ironton, Ohio, for Appellant. Philip J. Heald, Ironton, Ohio, for Appellee Kimberly D. Delawder. J.B. Collier, Jr., Prosecuting Attorney, and Kevin J. Waldo, Assistant Prosecuting Attorney, for Appellee State of Ohio. Craig A. Allen, Ironton, Ohio, for Appellee Lawrence County Child Support Enforcement Agency. ___________________________________________________________ Harsha, J. {¶1} Keith Dodson appeals from his thirty-day commitment following the trial court s finding that he was in contempt of court. him in support, civil which Dodson argues the trial court found contempt requires because he failed to that the court allow opportunity to purge his contempt. pay child him an However, our review of 2 Lawrence App. No. 02CA27 the record reveals the trial court found Dodson in contempt for failure to appear for a scheduled hearing, which is criminal contempt. In criminal contempt proceedings, trial courts are not required to offer defendants an opportunity to purge contempt before imposing sentence. Thus, we affirm Dodson's thirty-day commitment. {¶2} In October 2000, the Lawrence County Common Pleas Court, Juvenile Division held a hearing to fix the amount of Keith Dodson's child support arreage. failed to appear for the hearing. issued a Magistrate's Decision However, Dodson Nevertheless, the court finding him $2,991.30 arrears of his obligation to pay child support. in Later that month, the trial court approved the Magistrate's Decision. Dodson has not appealed that decision. {¶3} In February 2001, the Lawrence County Child Support Enforcement Agency (CSEA) filed a motion with the trial court to hold Dodson in contempt of court for failure to pay child support. Dodson replied by filing a Civ.R. 60(B) motion for relief of judgment because, he argued, the trial court failed to serve him with notice of the October 2000 hearing, which set the amount of arreage. hearing before a magistrate, the court Following a denied Dodson's Civ.R. 60(B) motion and set October 9, 2001, as the date to hear the CSEA's motion for contempt for failure to pay 3 Lawrence App. No. 02CA27 child support. Later, the trial court approved this decision and Dodson did not appeal it. However, Dodson failed to appear for the October {¶4} 9, 2001 hearing. As a result, the court issued a capias for his arrest and re-scheduled the CSEA's contempt hearing for October 26, 2001. court actually appeared But, on October 10, 2001, before the issued before the the capias, court. At Dodson that voluntarily time, the court demanded that Dodson show cause why it should not hold him in contempt for failure to appear for the October 9, 2001 hearing. The transcript from this hearing indicates the trial court found Dodson in contempt of court for failing to appear at the October 9, 2001 hearing, and set October 26, 2001, as the hearing date to determine his penalty for this issue contempt. a Unfortunately, judgment hearing. entry the following trial the court October did 10, not 2001 But, the court's judgment entry following the October 26, 2001 hearing, stated: "[t]his motion came to be heard on the 26th day of October 2001, upon an order of the Court to penalty phase contempt on determine as a October the result 10, Defendant, Keith being Dodson's, of the party found 2001 for non-compliance with in a previous court order and to speak to a matter of Child 4 Lawrence App. No. 02CA27 Support Arreage, as filed by the Lawrence County Child Support Enforcement Agency." {¶5} judgment The remainder entry found of that the court's Dodson was October now 26, 2001 $5,963.54 in arrears for child support and set-up a repayment schedule for him. The court also scheduled a review hearing for December 3, 2001, "for compliance with the aforementioned court orders." However, the judgment entry does not reveal that the court found Dodson in contempt for failure to pay child support October 10, December 3, and 2001, December 13, 2001. not set the contempt 2001 did for failure the court penalty to continued for Dodson's appear.1 the case On until The court's judgment entry following the December 3, 2001 hearing indicated that it continued the hearing "to allow the defendant comply with all court orders." two more weeks to The court's December 13, 2001 judgment entry states, "[t]he Court after reviewing the evidence, found that child support payments must be made. The Court will impose the thirty day jail sentence in regards to the contempt, but delay the commitment and review in approximately 45-60 days." 1 The transcript from the October 26, 2001 hearing indicates that the court found Dodson in contempt for failure to pay child support. However, the court never replicated this finding in a judgment entry. 5 Lawrence App. No. 02CA27 {¶6} The court held the review hearing on March 11, 2002, but Dodson failed to appear for it and the court again issued a capias for his arrest. The court re- scheduled the hearing for April 16, 2002, but, once again, Dodson failed to appear. As a result, in its judgment entry, the court continued the capias it originally ordered for Dodson's hearing. failure to appear at the March 11, 2002 On July 18, 2002, the Lawrence County Sheriff's Office executed the capias and brought Dodson before the court. issue The court continued the case "for hearing on the of whether Keith Dodson be held in contempt for violation of a Court Order and on the previous Court Order for imposition commitment." of The contempt sentence court scheduled September 10, its with a delayed next hearing hearing, the for September 10, 2002. {¶7} At the 2002 court found Dodson in contempt for failure to appear at the March 11, 2002 hearing. In addition, the court stated: "[i]n regards to Mr. Dodson's serving of the commitment ordered on December 13, 2001, the Court orders the commitment to begin immediately and remands Mr. Dodson into the hands of the Sheriff. The court finds the thirty day [sic] commitment was ordered to be served as a consequence of a previous contempt finding.: Following this judgment entry, 6 Lawrence App. No. 02CA27 Dodson appealed, assigning the following error: "The trial court sentencing erred appellant and Keith abused Dodson its to discretion jail in without giving him an opportunity to purge himself of contempt." {¶8} Contempt is a disregard of, or disobedience to, an order or command of judicial authority. First Bank of Marietta v. Mascrete, Inc. (1998), 125 Ohio App.3d 257, 263, 708 N.E.2d 262. contempt by a discretion. trial We will not reverse a finding of court unless that court abused its State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 75, 573 N.E.2d 62. An abuse of discretion consists of more than an error of judgment; it connotes an attitude on the part of the trial court unreasonable, unconscionable, or arbitrary. (1992), applying 62 Ohio this St.3d 521, standard of 527, 584 review, N.E.2d we are that is State v. Xie 715. not When free substitute our judgment for that of the trial court. to In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-38, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301. This deferential standard of review is the necessary because trial court is in the best position to judge the credibility of testimony due to its ability to observe the witness' demeanor, gestures and 7 Lawrence App. No. 02CA27 voice inflections. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. {¶9} Courts indirect. may classify contempt direct or Direct contempt occurs in the presence of the court in its judicial function. contempt as constitutes those R.C. 2705.01. acts occurring Indirect outside the presence of the court that show a lack of respect for the court or its lawful orders. App.3d 640, classify 643, contempt 598 as State v. Drake (1991), 73 Ohio N.E.2d civil or 115. Further, criminal. courts State ex may rel. Johnson v. Perry Cty. Court (1986), 25 Ohio St.3d 53, 55, 495 N.E.2d 16. This classification depends upon character and purpose of the punishment imposed. the Courts impose civil contempt when it will benefit the complainant, thus, the punishment is remedial or coercive in nature. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139, 472 N.E.2d 1085; Carroll v. Detty (1996), 113 Ohio App.3d 708, 711, 681 N.E.2d 1383. Courts impose criminal contempt in order to punish the contemnor, thus, courts characterize it by an unconditional prison term or fine. Id. {¶10} Civil and criminal contempt also vary in a number of other respects. For example, the burden of proof for civil contempt is clear and convincing evidence. 113 Ohio App.3d at 711. Carroll, However, the burden of proof for 8 Lawrence App. No. 02CA27 criminal contempt is beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416 N.E.2d 610, syllabus. Moreover, unlike criminal contempt, before a trial court may impose a sentence for civil contempt, it must allow the contemnor an opportunity to purge him or Carroll, 113 Ohio App.3d at 712. herself of the contempt. Finally, unlike civil contempt, criminal contempt requires proof of a purposeful, willing, or intentional violation of a trial court s order. Id. at 711. {¶11} It is often difficult to find a clear line of distinction between criminal and civil contempt. rel. Johnson, 25 Ohio St.3d at 55. whether contempt necessary Brown, 64 to is civil determine Ohio St.2d or the at In order to determine criminal purpose 254. State ex in nature, behind Normally, the it is sanction. courts view contempt proceedings in domestic cases as civil in nature because their purpose is to coerce compliance with the court's orders. App. No. 00CA17, 2001-Ohio-2486. or encourage future Evans v. Cole, Jackson However, courts view contempt proceedings for failure to appear as criminal in nature because their purpose is to vindicate the authority of court. In re Schisler (Dec. 15, 1997), Scioto App. No. 97CA2485. Moreover, since the failure to pay child support and the failure to appear occur outside the presence of 9 Lawrence App. No. 02CA27 court and they show a lack of respect for the court, courts view them as indirect contempt. In re Purola (1991), 73 Ohio App.3d 306, 310-11, 596 N.E.2d 1140. {¶12} Here, all of the parties contend the trial court found Dodson in civil contempt for failure to pay child support. However, the only item in the record that supports this assertion is the transcript from the October 26, 2001 hearing. This is not enough to find Dodson in contempt for failure to pay child support because courts of record in Ohio speak only through their judgment entries, not by oral pronouncement. State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163, 1995-Ohio-278, 656 N.E.2d 1288. Thus, since the trial court did not reduce its contempt finding to a judgment entry, it has never found Dodson in contempt for failure to pay child support. {¶13} But, the trial court did find Dodson in contempt for failure to appear. In its judgment entry following the October 26, 2001 hearing, the trial court stated that it found Dodson in contempt on October 10, 2001. While the court's judgment entry did not specify why it found Dodson in contempt, the transcript from the October 10, 2001 hearing reveals the court found him in contempt for failure to appear on October 9, 2001. Therefore, the trial court properly found Dodson in contempt because it spoke through 10 Lawrence App. No. 02CA27 its October 26, 2001 judgment entry. Thus, on December 13, 2001, when the court ordered a thirty-day commitment as the penalty phase for Dodson s contempt for failing to contempt, appear at he the was only October 9, in 2001 hearing. {¶14} In his assignment of error, Dodson argues the trial court abused its discretion in not allowing him an opportunity contempt to for purge failure himself to of appear contempt. is But, indirect since criminal contempt, the court was not required to allow Dodson the opportunity to purge himself of the contempt. Moreover, the fact that the court suspended the commitment in order to allow Dodson additional time to pay child support does not change the contempt from criminal to civil. The purpose of the contempt continued to be to punish Dodson for his failure to appear. However, intertwined with this purpose, was the court s awareness that the most important and immediate concern remained the payment of the child support. Dodson s Dodson to Thus, we cannot read the court s suspension of thirty-day pay his commitment child as support. an attempt Rather, to the coerce court s suspension evidences its realization that Dodson could not possibly pay child support while behind bars for thirty days. Thus, it is clear to us that the court suspended 11 Lawrence App. No. 02CA27 Dodson s thirty-day commitment so that he could catch up on his child support obligation before it would impose its punishment for failure to appear. {¶15} The transcript from the October 10, 2001 hearing bolsters this belief. There, the court continued the case to determine Dodson s penalty for failure to appear and stated, I would encourage [sic] that we re going to find some activities in regards to child support. * * * That s not to imply how that may impact the final decisions or orders of the court on the two issues that are before us."2 Thus, the transcript reveals the trial court s intention to allow Dodson to catch up on his child support obligation, rather than contempt. allowing him an opportunity to purge his If the court meant for its contempt finding to be civil, it would have allowed Dodson an opportunity to purge his contempt by clearly indicating that it would lift the contempt sanction if he paid child support as ordered. {¶16} Since the trial court found Dodson in contempt for failure to appear, which is indirect criminal contempt, it was not required to allow him an opportunity to purge himself of the contempt. Thus, our inquiry ends and Dodson s assignment of error is overruled because he does 2 The two issues before the court were the penalty phase for the October 10, 2001, contempt for failure to appear and the hearing on whether Dodson was in contempt for failure to pay child support. 12 Lawrence App. No. 02CA27 not argue, and the record does not reflect, that the court abused its discretion in finding him in contempt for failure to appear. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court, Probate-Juvenile Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Evans, P.J. & Abele, J: Concur in Judgment & Opinion. For the Court BY: _______________________ William H. Harsha, Judge 13 Lawrence App. No. 02CA27 NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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