Wilson v. Jones

[Cite as Wilson v. Jones, 2013-Ohio-4638.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

AMY WILSON,

PLAINTIFF-APPELLANT, CASE NO. 13-13-06

v.

WILLIAM JONES, OPINION

DEFENDANT-APPELLEE.

Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 20270036

Judgment Affirmed

Date of Decision: October 21, 2013

APPEARANCES:

Shane M. Leuthold for Appellant

William Jones, Appellee
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PRESTON, P.J.

{¶1} Plaintiff-appellant, Amy Wilson, appeals the judgment of the Seneca

County Court of Common Pleas, Juvenile Division finding her in contempt. For

the reasons that follow, we affirm.

{¶2} Wilson and William Jones have a minor child together. (Dec. 9, 2002

JE, Doc. No. 26). The parties entered an agreement on the record designating

Wilson as the minor child’s residential parent and providing Jones with specified

visitation periods and other visitation periods as provided by Local Rules. (Id.);

(June 11, 2003 JE, Doc. No. 38).

{¶3} On July 26, 2011, Jones filed a motion for contempt on the basis that

Wilson interfered with his court-ordered visitation, removed the minor child from

the “country,” and changed the minor child’s religion without consulting him.

(Doc. No. 48).

{¶4} On October 18, 2011, the motion came on for hearing before a

magistrate, and the magistrate found Wilson in contempt for denying Jones

visitation. (Oct. 26, 2011 JE, Doc. No. 63). The magistrate recommended that the

trial court impose a ten-day jail sentence suspended upon conditions that: (1)

Wilson make-up the missed visitation time; and, (2) Wilson reimburse Jones $163,

the cost of filing the contempt motion, payable to the Court within 30 days of the

file-stamped date of the entry. (Id.). The magistrate notified Wilson that if any of

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the conditions were not met, the trial court would impose the suspended jail

sentence. (Id.). The magistrate further notified Wilson that she could purge the

contempt by paying $250 by November 23, 2011, which sum would be forwarded

to Jones. (Id.). On October 26, 2011, the magistrate’s decision was filed, and the

trial court adopted it as its judgment that same day. (Id.).

{¶5} On January 24, 2013, Jones filed a second motion for contempt

alleging that Wilson failed to comply with the court’s October 26, 2011 orders,

Wilson interrupted his visitation time, and Wilson removed the minor child from

the state without his prior consent. (Doc. No. 65).

{¶6} On February 15 and March 4, 2013, the motion came on for hearing

before the trial court. (Mar. 15, 2013 JE, Doc. No. 77). The trial court found

Wilson in contempt and imposed three of its previously ten suspended jail days.

(Id.). The trial court fined Wilson $250 but gave her credit for the same for the

$250 she recently paid to purge the prior contempt. (Id.). The trial court

sentenced Wilson to 30 days in jail but suspended the time on conditions that

Wilson: (1) comply with all court orders; and (2) reimburse Jones his $163 filing

fee for the contempt action by April 12, 2013. (Id.). The trial court notified

Wilson that she could purge the contempt by paying $750 by April 12, 2013,

which sum would be forwarded to Jones. (Id.). The trial court filed its judgment

entry in contempt on March 15, 2013. (Id.).

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{¶7} On March 18, 2013, Wilson filed a motion to stay the sentence

pending appeal and a notice of appeal. (Doc. Nos. 78-79). On March 19, 2013,

the trial court granted Wilson’s motion to stay its sentence. (Doc. No. 85).

{¶8} Wilson now appeals raising five assignments of error for review. We

elect to address some of Wilson’s assignments of error out of the order presented

in her brief, combining them where appropriate.

{¶9} Before proceeding with the merits, we note that Jones has failed to file

an appellee’s brief in this case. Under those circumstances, App.R. 18(C)

provides that we “may accept the appellant’s statement of the facts and issues as

correct and reverse the judgment if the appellant’s brief reasonably appears to

sustain such action.” Nevertheless, upon review of appellant’s brief and the record

herein, we are not persuaded that a reversal is warranted in this case.

Assignment of Error No. III

The court erred by finding appellant was in contempt of the
prior judgment of June 11, 2003.

{¶10} In her third assignment of error, Wilson argues that the trial court

erred by finding her in contempt of the court’s prior orders. In particular, Wilson

argues that she did not interfere with Jones’ parenting time on December 28, 2012

since she was merely mistaken about the trial court’s visitation schedule. She

argues that she did not deny Jones his weekend visitation on January 18, 2013

since she had previously informed him that they would be out of state on a trip,

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and Jones did not voice any objection. Wilson argues that Jones merely withdrew

his consent for the out-of-state trip after the December 28, 2012 confrontation.

{¶11} We will not reverse a finding of contempt by a trial court absent an

abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11 (1981)

(per curiam). An abuse of discretion consists of more than an error of judgment;

rather, it connotes an attitude on the part of the trial court that is unreasonable,

unconscionable, or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying the abuse-of-discretion standard of review, an appellate

court may not merely substitute its judgment for that of the trial court. In re Jane

Doe I, 57 Ohio St.3d 135, 137-138 (1991), citing Berk v. Matthews, 53 Ohio St.3d

161, 169 (1990).

{¶12} Factual findings underpinning the trial court’s contempt judgment

will not be reversed if they are supported by some competent, credible evidence.

See Sec. Pacific Natl. Bank. v. Roulette, 24 Ohio St.3d 17, 20 (1986). See also

Kerchenfaut v. Kerchenfaut, 3d Dist. Allen No. 1-03-49, 2004-Ohio-810, ¶ 13.

The trial court is in the best position to judge the credibility of testimony because

it is in the best position to observe the witness’ gestures and voice inflections.

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984); Johnson v. Johnson,

71 Ohio App.3d 713, 718 (11th Dist.1991).

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{¶13} Kelly Jones, the wife of the complainant and stepmother to the minor

child, testified that they had custody of the minor child on December 28, 2012 as

part of Jones’ Christmas holiday visitation. (Feb. 15, 2013 Tr. at 10, 14). Kelly

testified that, around 8:15 p.m. that night, Wilson called Jones wondering the

whereabouts of the minor child. (Id. at 14-15). Kelly testified that Jones indicated

to Wilson that the minor child was still with him since it was his Christmas

visitation time per the court order. (Id. at 15-16). Kelly testified that Wilson did

not agree with Jones keeping the minor child so, a few minutes later, Wilson

arrived in her vehicle to pick up the minor child. (Id. at 16). According to Kelly,

Wilson told Jones that it was her weekend and she wanted custody of the minor

child, and that if the child did not come with her, then she was going to take the

child out of state for two weekends in January and she was “not f’ing gonna make

it up.” (Id. at 16-17). Kelly testified that this was the first time they heard of

Wilson’s out-of-state trip. (Id. at 18).

{¶14} Kelly testified that, when Jones refused to let the minor child leave

with Wilson, Wilson began to beep her car horn and yell for the minor child to

come out of the home. (Id. at 19). Kelly testified that Wilson was so disruptive

that Kelly called the police, which is not something she has a habit of doing. (Id.).

Kelly identified defense exhibit two as a recording of the conversation Jones had

with Wilson the night of December 28, 2012, which was played for the trial court.

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(Id. at 22-23). Kelly testified that Wilson continued yelling and beeping her horn

for several minutes after the end of the recording (D’s Ex. 2), until Kelly called the

police, at which point Wilson “backed to the end of [the] driveway and when the

police car drove by she peeled out of [the] driveway.” (Id. at 26). Kelly testified

that Wilson appeared to be confused about her holiday visitation, and Wilson was

interrupting Jones’ holiday visitation. (Id. at 25).

{¶15} Kelly also identified defense exhibit four as a text message

conversation Jones had with Wilson on January 13, 2013 regarding Wilson’s out-

of-state trip with the minor child. (Id. at 34). Kelly testified that this text message

conversation was the first time Jones and she learned the specific dates for

Wilson’s out-of-state trip with the minor child, five days prior to Jones’ normal

weekend visitation. (Mar. 4, 2013 Tr. at 15). Kelly testified that Jones and she

went to Wilson’s house to pick up the minor child on Friday evening, January 18,

2013 for a regular weekend visitation, and the minor child was not home. (Id. at

12). Kelly testified that Jones called Wilson to find out where the minor child

was, and Kelly identified defense exhibit five as an accurate recording of the

phone conversation. (Id. at 13-14).

{¶16} Tiffin Police Officer Rachel Nye testified that she reported to Jones’

house the night of December 28, 2012 for a subject (Wilson) causing a

disturbance. (Id. at 7-8). Officer Nye identified defendant’s exhibit three as a

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copy of the police report from the incident. (Id. at 8). Officer Nye testified that

she eventually contacted Wilson and informed her of the complaint, but Wilson

indicated that she should not be calling her regarding custody issues. (Id. at 9-10).

Officer Nye testified that Wilson admitted to disorderly conduct but attempted to

minimize her behavior and did not have much interest in listening to her. (Id. at

10). Officer Nye testified that she did not issue a citation but merely warned

Wilson. (Id. at 10-11).

{¶17} Natalie Jones, the complainant’s sister, testified that, on the night of

December 28, 2012, her sister, Colleen, and she drove over to Jones’ house to see

Kelly and the minor child. (Id. at 20). Natalie testified that, before she left her

house, Kelly called her and she could hear in the background “yelling and

beeping, screaming AND beeping, a lot of ruckus.” (Id. at 21) (emphasis in

original). Natalie further testified that, as they were coming to Jones’ house, a

police cruiser was driving in front of them, and, as they approached the house, she

saw Wilson’s car peel out backwards from Jones’ driveway. (Id.). Natalie

testified that she saw Kelly and Jones standing in the driveway; Kelly had a

telephone, and Jones had paperwork in his hands. (Id. at 22).

{¶18} Wilson testified that she went to Jones’ home on December 28, 2012

to retrieve the minor child, because she accidentally read the rules regarding

extended visitation as opposed to local visitation. (Id. at 34). Wilson admitted

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that Jones and she had a heated conversation in the driveway concerning the

court’s visitation orders. (Id. at 35). Wilson testified that her friend, Jess, found

the court paperwork and told her that she had misread the paperwork, so she left

Jones’ house. (Id. at 36). Wilson testified that she was not aware that the police

had been called, and she denied peeling out of the driveway. (Id. at 36-37).

Wilson testified that she did not recall seeing Jones’ sister, Natalie, that night. (Id.

at 37). Concerning the January 18, 2013 visitation date, Wilson testified that,

when Jones picked up the minor child for his Christmas visitation, she informed

Jones that she was taking the minor child out-of-state around the third week of

January. (Id. at 37). Wilson testified that the travel dates were not finalized until

January 13, 2013, at which point she informed Jones during a texting

conversation. (Id. at 37-38). She identified plaintiff’s exhibit A as screen shots of

her i-Phone depicting the January 13th texting conversation. (Id. at 40-41).

Wilson testified that she offered to make up the time that Jones would have

normally had with the minor child on January 26th, the day they returned plus an

additional day, or another weekend. (Id. at 38). Wilson testified that she did state

that she was taking the minor child out-of-state during the December 28, 2012

argument, though she admitted she was angry and yelling. (Id. at 39-40).

{¶19} Jessica Jeanette, Wilson’s friend and roommate, testified that she was

in the living room of their home when Jones came to pick up the minor child on

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Christmas day (2012). (Id. at 69-70). Jessica testified that she overheard Wilson

and Jones talking at the front door of the house, and Wilson told Jones that she

was planning a trip around the third week of January. (Id. at 71). Jessica testified

that Wilson asked Jones if he had any issues with the trip, and Jones indicated

“okay.” (Id. at 71-72). Jessica testified that, the weekend of December 28, 2012,

Wilson thought it was her time for visitation, but Wilson read the document

incorrectly. (Id. at 73, 81).

{¶20} On rebuttal, Kelly Jones testified that she was with Jones when he

picked up the minor child on Christmas day 2012, and she did not observe Jones

have any conversation with anyone at the house, except the minor child. (Id. at

89). Kelly testified that she did not see Jessica or Wilson that day. (Id. at 90). On

cross-examination, Kelly testified that she was waiting for Jones in their vehicle

which was parked very close to the front door of the house. (Id.). Kelly testified

that her windows were cracked, and she could hear Jones tell the minor child he

would wait for her in the car, and the minor child stated she would be just a

minute. (Id. at 91).

{¶21} Reviewing the testimony, the trial court concluded that the only

notice Jones was given concerning the out-of-state trip was on December 28, 2012

when Wilson, during a profanity-laced rant, told Jones, “I am letting you know

right now there is a weekend in January you’re not getting her cause were [sic]

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going to be out of State so go ahead and fucking keep her and were [sic] going to

be gone two weekends in a row (in January) and you are not making it up.” (Mar.

15, 2012 JE, Doc. No. 77). The trial court also found that Wilson and Jessica were

not credible when they testified that Wilson informed Jones that the minor child

and she were going out of state on December 25, 2012. (Id.). Consequently, the

trial court concluded that Wilson denied Jones his regular visitation for the

weekend of January 18, 2013 through January 20, 2013. (Id.). The record

supports the trial court’s factual findings. In particular, the recording of the

December 28, 2012 confrontation supports the trial court’s findings concerning the

statements Wilson made and ultimately its finding that Wilson had not previously

obtained Jones’ consent for the out-of-state trip scheduled during his normal

weekend visitation time. We will also not second-guess the trial court’s credibility

determination.

{¶22} The trial court’s finding that Wilson interrupted Jones’ holiday

visitation on December 28, 2012 is also supported by the testimony and recording

in this case. Kelly testified that Wilson was so disruptive that she called the

police, which was not a habit of hers. Furthermore, Officer Nye testified that once

she contacted Wilson, Wilson admitted but minimized her behaviors and exhibited

an attitude during the phone conversation. Despite the evidence in this case,

Wilson argues that she should not be held in contempt for the December 28th

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incident because she did not intend to violate the court’s order. Intent to violate

the court’s order is not a necessary element of civil contempt. Windham Bank v.

Tomaszczyk, 27 Ohio St.2d 55, 58 (1971); Pugh v. Pugh, 15 Ohio St.3d 136

(1984), paragraph one of the syllabus.

{¶23} Wilson’s third assignment of error is, therefore, overruled.

Assignment of Error No. IV

The Court erred by finding the appellant in contempt without
stating that any type of burden of proof was met by the appellee.

{¶24} In her fourth assignment of error, Wilson argues that the trial court

imposed criminal and civil contempt sanctions—the former requiring proof

beyond a reasonable doubt, and the latter requiring clear and convincing

evidence—and yet, the trial court failed to state that the applicable burdens of

proof had been met for each sanction.

{¶25} “Proceedings in contempt are sui generis in the law. They bear some

resemblance to suits in equity, to criminal proceedings and to ordinary civil

actions; but they are none of these.” Cincinnati v. Cincinnati Dist. Council 51, 35

Ohio St.2d 197, 201-202 (1973). Although often unclear, the distinction between

civil and criminal contempt is important. Liming v. Damos, 133 Ohio St.3d 509,

2012-Ohio-4783, ¶ 11, citing Internatl. Union, United Mine Workers of Am. v.

Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552 (1994). Of particular relevance here,

the burden of proof for criminal contempt is proof beyond a reasonable doubt;

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whereas, the burden of proof for civil contempt is clear and convincing evidence.

Liming at ¶ 11; Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253 (1980).

{¶26} The distinction between civil and criminal contempt is typically

based on the sanction’s purpose. State ex rel. Corn v. Russo, 90 Ohio St.3d 551,

554 (2001). Civil contempt involves sanctions that are remedial or coercive for

the benefit of the complainant rather than the court. Brown, 64 Ohio St.2d at 253.

Civil contempt is often characterized by conditional sanctions, i.e., the contemnor

is jailed until he complies with the court order. Id. Criminal contempt, on the

other hand, usually involves unconditional prison terms or fines. Id. at 253-254.

Sanctions in criminal contempt serve to punish the contemnor and to vindicate the

authority of the court. Id. at 254. To determine the court’s purpose in imposing

contempt sanctions, the entire record must be reviewed. Liming at ¶ 12, citing

State v. Kilbane, 61 Ohio St.2d 201, 206 (1980).

{¶27} The trial court imposed three days of jail it had previously suspended

for Wilson’s previous contempt. (Mar. 15, 2012 JE, Doc. No. 77). The trial court

also imposed a $250 fine, which the trial court found paid in full because Wilson

had already deposited $250 from the previous contempt. (Id.). The trial court

further sentenced Wilson to 30 days in jail, but suspended the time upon

conditions that she comply with the court’s orders and reimburse Jones his $163

filing fee for the present contempt action. (Id.). The trial court also gave Wilson

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an opportunity to purge the contempt upon payment of $750 before the end of the

day on April 12, 2013. (Id.).

{¶28} Upon review, we conclude that these sanctions were conditional,

remedial, and designed for the benefit of Jones, the complainant. Brown, 64 Ohio

St.2d at 253. Therefore, the trial court was proceeding on a civil contempt for

which clear and convincing evidence was required. Brown, 64 Ohio St.2d at 250.

While the trial court’s judgment entry does not indicate what burden of proof it

required, we must presume regularity absent evidence that it failed to employ the

correct standard. Rudduck v. Rudduck, 5th Dist. Licking No. 98CA85, 1999 WL

436818, *4 (June 16, 1999).

{¶29} Wilson’s fourth assignment of error is, therefore, overruled.

Assignment of Error No. I

The Court abused its discretion by imposing a three (3) day jail
sentence for failing to timely pay $163.

Assignment of Error No. V

The Court abused its discretion by imposing a $750.00 fine on
the appellant knowing that she was already determined to be
indigent.

{¶30} In her first assignment of error, Wilson argues that the trial court

abused its discretion by finding her in contempt for failing to timely pay the $163

for Jones’ filing costs for the previous contempt motion. She argues that, in

November 2011, a friend wrote a check for $163 on her behalf payable to the

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court, but the check was never cashed; and therefore, she did not willfully disobey

the court’s order.

{¶31} In her fifth assignment of error, Wilson argues that the trial court

abused its discretion by imposing a $750 fine payable by April 12, 2013 knowing

she was indigent and the residential parent of the minor child. Wilson argues that

the trial court imposed financial purge conditions that she could not possibly pay

subjecting her to another 30-day jail term.

{¶32} Like the trial court’s contempt finding itself, the trial court’s

imposition of penalties for contempt is reviewed for an abuse of discretion.

Whitman v. Whitman, 3d Dist. Hancock No. 5-11-20, 2012-Ohio-405, ¶ 52

(citations omitted).

{¶33} To begin, we disagree with Wilson’s characterization that the trial

court’s imposition of jail time was only for the untimely payment of the $163

filing fee reimbursement. The record in this case demonstrates that this was the

second contempt filing concerning Wilson’s denial of Jones’ visitation time. The

Court’s October 26, 2011 Order placed Wilson on notice that jail time would be

imposed if she failed to satisfy the conditions set forth in the order, including

timely payment of the $163 filing fee. (Doc. No. 63). The trial court also

admonished Wilson at that time that she was required to abide by the court’s

visitation orders and could not change a court order without seeking modification

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from the trial court. (Id.). After Wilson failed to reimburse Jones the filing fee for

well over a year after the due date and Wilson continued to interfere with Jones’

court-ordered visitation, Jones filed the second contempt motion asking the trial

court to enforce its prior contempt order. (Doc. No. 65). Consequently, the trial

court’s imposition of jail time was for more than just failing to timely pay the

$163 filing fee reimbursement as Wilson contends.

{¶34} Wilson’s argument that the trial court ignored her efforts to timely

pay the filing fee reimbursement and purge condition are meritless. The trial court

specifically found that Wilson’s and Jessica’s testimony concerning the attempted

timely payment of the filing fee was not credible. (Mar. 15, 2013 JE, Doc. No.

77). In light of the totality of the circumstances, including the fact that this was

Wilson’s second contempt finding for similar conduct, we cannot conclude that

the trial court abused its discretion by imposing three days of jail.

{¶35} Similarly, we cannot conclude that the trial court’s imposition of a

$750 purge condition constituted an abuse of its discretion. Wilson’s blatant

disregard for the trial court’s visitation orders was apparent from the record, and

this was Wilson’s second contempt for similar actions. Whether or not the trial

court will impose the 30-day jail sentence if Wilson fails to timely pay the full

amount remains to be seen, and we will not speculate on this issue. Wilson can

certainly make payments in a good-faith effort to pay the purge condition.

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Notably, the trial court stayed its order pending appeal, so Wilson has had over six

months to prepare the payment prior to this Court’s decision. (Doc. No. 85).

{¶36} Wilson’s first and fifth assignments of error are, therefore, overruled.

Assignment of Error No. II

The trial court errored [sic] by imposing jail for unpaid court
costs.

{¶37} In her second assignment of error, Wilson argues that the trial court

erred by imposing jail time for failing to pay filing fees. In particular, Wilson

argues that Section 15, Article I of the Ohio Constitution prohibits imprisonment

for debts in civil actions.

{¶38} “No person shall be imprisoned for debt in any civil action, on mesne

or final process, unless in cases of fraud.” Section 15, Article I of the Ohio

Constitution. The phrase “debt in any civil action” in Section 15, Article I of the

Ohio Constitution includes court costs. Strattman v. Studt, 20 Ohio St.2d 95

(1969), paragraphs six and seven of the syllabus.

{¶39} Wilson’s argument in this assignment of error is based upon the same

faulty premise that underpins her first assignment of error—that the trial court

imposed its previously suspended jail time for Wilson’s failure to reimburse Jones

his filing fees alone. The trial court’s judgment entry clearly indicates three

additional, independent grounds for finding Wilson in contempt: (1) she interfered

with Jones’ visitation time on December 28, 2012; (2) she denied Jones his regular

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weekend visitation on the weekend of January 18, 2013; and, (3) she improperly

removed the child from the state. (Mar. 15, 2013 JE, Doc. No. 77). In its previous

entry, the trial court ordered Wilson to continue to obey the prior court orders,

including the June 11, 2003 judgment regarding the allocation of parental rights

and responsibilities, which Wilson failed to do. (Oct. 26, 2011 JE, Doc. No. 63).

Therefore, contrary to Wilson’s representations, she was not jailed for failing to

timely pay the filing fee alone; and therefore, we find no error with the trial court’s

imposition of jail time.

{¶40} Wilson’s second assignment of error is, therefore, overruled.

{¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr

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