Geary v. Geary

[Cite as Geary v. Geary, 2015-Ohio-259.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
JANELLE GEARY : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
First Petitioner-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 14CAF050033
SHAWN GEARY :
:
Second Petitioner-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No. 10 DS C 03
0136

JUDGMENT: Affirmed in part; Reversed and Remanded
in part

DATE OF JUDGMENT ENTRY: January 16, 2015

APPEARANCES:

For First Petitioner-Appellant For Second Petitioner-Appellee

LISA MEIER ROBERT OWENS
ANTHONY GRECO 46 North Sandusky St., Ste. 202
6810 Caine Road Delaware, OH 43015
Columbus, OH 43235
[Cite as Geary v. Geary, 2015-Ohio-259.]

Gwin, J.

{¶1} Appellant appeals the April 17, 2014 judgment entries of the Delaware

County Common Pleas Court, Domestic Relations Division.

Facts & Procedural History

{¶2} In May of 2010, appellant Janelle Geary and appellee Shawn Geary filed a

separation agreement, agreed judgment entry, and decree of dissolution that

established the responsibilities of the parties, including child support and visitation. The

parties have three children, S.G., born on June 13, 1992, J.G., born on June 27, 1997,

and J.G., born on May 20, 1999. In the separation agreement, the parties provided for

specific parenting time with appellee. In July of 2010, appellant filed a motion for

modification and reallocation of parental rights and responsibilities. In August of 2010,

appellee filed a motion for reallocation of parental rights and responsibilities. Appellee

also filed a motion for contempt against appellant alleging she moved without informing

appellee. In August of 2010, Pamela Lammon (“Lammon”) was appointed as guardian

ad litem (“GAL”) in the case. Appellant filed a motion for contempt in February of 2011.

{¶3} Lammon filed her first report in February of 2011. She recommended

appellant remain as the residential parent, expanded visitation for appellee, and an

order from the trial court that Toby Caudill (“Caudill”), appellant’s ex-fiancée, could have

no contact with the children. In April of 2011, Lammon filed an update to her report and

indicated she wished to speak with the children, but neither parent would bring them to

her office.

{¶4} While the motions were pending in this case, appellant filed a petition for

civil protection order (“CPO”) against appellee in Perry County on April 25, 2011, and
Delaware County, Case No. 14CAF050033 3

listed the children as “protected parties” on the petition. The magistrate in Perry County

initially granted the CPO against appellee; however, after appellee filed objections to the

decision, the trial court in Perry County vacated the CPO against appellee in February

of 2013. The magistrate in the instant case held a hearing on the parties’ motions to

modify on April 27, 2011, but appellant did not inform the magistrate of the pending

CPO petition.

{¶5} On May 2, 2011, the magistrate issued a decision denying appellee’s

motion for modification, granting appellee extended visitation, denying appellant’s

motion for contempt in part with regards to the failure to pay federal taxes, and granting

appellant’s motion for contempt in part with regards to the failure of appellee to pay

Ohio state taxes or set up a payment plan. The magistrate also ordered that Caudill

was to have no contact with the minor children. Neither party objected to the

magistrate’s decision and the trial court approved and adopted the decision on June 9,

2011. On June 6, 2011, appellee filed a motion for emergency change of custody. On

June 21, 2011, Lammon filed a Second Update to her GAL Report. In her update,

Lammon stated that appellant did not tell Lammon or the magistrate about the CPO she

filed against appellee that listed the children as protected parties. Further, that this is

the “strongest case of parental alienation” Lammon has seen in nineteen years of

practice as appellant will not follow court orders and is less than truthful. On June 29,

2011, the magistrate denied appellee’s motion for change of custody, finding no change

of circumstances. The trial court approved and adopted the magistrate’s decision on

July 21, 2011, as no objections were filed by either party. Appellant filed a motion to

terminate Lammon as the GAL in August of 2011, which was denied by the trial court.
Delaware County, Case No. 14CAF050033 4

{¶6} On March 26, 2012, appellee filed a motion for reallocation of parental

rights and responsibilities and motion to reappoint GAL. On April 24, 2012, appellee

filed a motion for modification of child support to reduce the amount of child support due

to the fact that S.G. was no longer enrolled in college on a part-time or full-time basis.

On May 14, 2012, appellant filed a second petition for civil protection order in Perry

County which contained allegations of phone and text threats from appellee. The Perry

County magistrate granted the CPO against appellee until May 14, 2013. However, on

August 23, 2012, appellant dismissed the action against appellee. As a result of

appellant’s allegations in the CPO petition, criminal charges were filed against appellee.

To defend appellee against the criminal charges, appellee hired a communications

expert. In the expert’s report, the cell tower data contradicted appellant’s assertion that

she received threats on May 8, 2012 in Perry County. Accordingly, the criminal charges

against appellee were dismissed.

{¶7} On June 15, 2012, appellee filed a motion for emergency change of

custody. Appellant filed a motion to dismiss appellee’s motion for emergency change of

custody or continue the matter until the CPO was concluded. On August 8, 2012, the

magistrate denied appellee’s motion for emergency relief, and also denied appellant’s

motion to dismiss. In October of 2012, the trial court appointed Louis Herzog (“Herzog”)

as GAL.

{¶8} On June 7, 2013, appellee filed a motion to show cause and for contempt

against appellant. Appellee included three prongs to his contempt motion: (1) appellant

failed to comply with regard to her duty to report when S.G. was no longer continuously

enrolled in college; (2) appellant failed to comply with the order of May 2, 2011 as she
Delaware County, Case No. 14CAF050033 5

willfully interfered with appellee’s visitation and caused parental alienation; and (3)

appellant failed to comply with the May 2, 2011 order that prohibited contact between

Caudill and the children. On August 29, 2013, appellant filed a motion for in-camera

interview of the children. On September 20, 2013, appellant filed a motion to show

cause against appellee for the failure to pay back federal taxes.

{¶9} The trial court held a hearing on August 30, 2013. Lammon testified that

she personally attended the CPO hearing in Perry County and observed the child testify

against appellee. Lammon confirmed her report that, based upon her investigation and

observations including talking to the children, talking to both parents, and home visits,

this is the strongest case of parental alienation she has seen in 19 years. Lammon

stated that she has not been involved in the case since 2011.

{¶10} Attorney Carrie Varner (“Varner”) testified as to the reasonableness and

necessity of appellee’s attorney fees. Ezekiel Keesbury (“Keesbury”), a case manager

at Delaware County Child Support Enforcement Agency, testified that appellant did not

inform the agency that S.G. withdrew from college in 2011. However, the agency

received documentation from appellee in April of 2013 that S.G. withdrew from college

in 2011.

{¶11} Appellant testified that, at the May 2, 2011 hearing, she did not tell the

magistrate or the GAL she had filed a CPO against appellee on April 25. Appellant

stated she never notified child support that S.G. was no longer in college. However,

she was under the impression that child support knew he was no longer in college.

Appellant testified on direct examination that the allegations in the CPO petition she

filed against appellee were true and accurate. However, on cross-examination,
Delaware County, Case No. 14CAF050033 6

appellant testified that she lied under oath as she was in Reynoldsburg, Ohio on May 8,

2012, when in previous sworn testimony and in the CPO petition, she testified she was

in Perry County at that date and time. Appellant stated she lied to protect herself and

her children. Appellant testified that she was very concerned about appellee visiting the

children because of previous incidents he was involved in. However, appellant could

not explain why this was never mentioned by the children in interviews with the GAL or

the magistrate.

{¶12} Appellee testified that the criminal charges filed against him in Perry

County were dismissed after he obtained an expert report regarding appellant’s cell

phone activity. Appellee stated he filed numerous motions to receive visitation with the

children and his attorney sent certified letters to appellant and her attorney requesting

visitation. Appellee never called the children or sent them cards or gifts because he

was afraid he would be in violation of the CPO order and he would be arrested.

{¶13} The trial court continued the hearing until October 11, 2013. At the

October 11th hearing, appellant testified that when she filed her personal tax return for

2012, her refund was applied to back taxes from the 2007 year in the amount of

$4,225.11. Appellee testified that he made a payment arrangement with the IRS in

2010 and monthly payments of $250 - $260 per month are automatically deducted from

his checking account. Further, that when he contacted the IRS, he was informed that

he owed nothing for 2005, 2006, or 2007. Appellee does not know why the IRS took a

portion of appellant’s refund as his payment plan is still in place and he received no

notice that the IRS was retaining any of appellant’s funds.
Delaware County, Case No. 14CAF050033 7

{¶14} On April 17, 2014, the trial court issued multiple judgment entries. In the

judgment entry on appellant’s motion for contempt against appellee for back taxes, the

trial court denied the motion and found no clear and convincing evidence of contempt by

appellee with regards to paying federal back taxes. In the judgment entry on attorney

fees, the trial court noted that though appellee was seeking $91,323.79 in attorney fees,

some of the acts appellee requested fees for were collateral in nature and not related to

the contempt charge. The trial court awarded appellee $2,850 in attorney fees for the

first prong of appellee’s contempt motion, $17,500 in attorney fees for the second prong

of appellee’s contempt motion, and $1,450 in attorney fees for the third prong of

appellee’s contempt motion. The trial court denied appellant’s motion for in-camera

interview of the children, finding that appellant alienated the children so much that an

interview would have no value and would not assist the trial court in a determination as

to appellant’s potential contempt.

{¶15} The trial court found appellant in contempt with regards to the first prong

of appellee’s motion for contempt and awarded appellee attorney fees. The trial court

found appellant’s testimony regarding notifying CSEA of S.G.’s withdrawal from college

was not credible and that appellee demonstrated, by clear and convincing evidence,

that appellant willfully failed to notify CSEA that S.G. withdrew from college. The trial

court sentenced appellant to thirty days in jail and a fine of $250. However, the jail

sentence was suspended upon appellant’s compliance with a payment plan.

{¶16} The trial court also found appellant in both civil and criminal contempt with

regards to the second prong of appellee’s motion for contempt and awarded appellee

attorney fees. The trial court found that, as a result of appellant’s actions, appellee had
Delaware County, Case No. 14CAF050033 8

no meaningful parenting time with the children since 2011. The trial court found that the

overall testimony of appellant established serious doubt upon her character because

when she was confronted with discrepancies, her efforts to explain her actions

undermined her credibility so badly that her testimony was worthless. The trial court

stated appellant lied under oath in an effort to prohibit appellee from having parenting

time with the children. Further, that appellant willfully and purposely interfered with

appellee’s visitation and also alienated the children towards appellee. The trial court

sentenced appellant to thirty days (30) in jail and $250 for the criminal contempt.

{¶17} With regards to the third prong of appellee’s motion for contempt, the trial

court found that while appellee presented compelling evidence with respect to Caudill

having contact with the children after 2011 and has shown by a preponderance of the

evidence that appellant was negligent in creating violations, there is not clear and

convincing evidence of the children’s contact with Caudill. However, in light of the

overall circumstances, the trial court assessed attorney fees to appellant.

{¶18} The trial court also issued a judgment entry with regards to child support.

The trial court found appellant went to such lengths to alienate the children from

appellee that it would be inappropriate for appellee to continue to pay child support.

The trial court terminated appellee’s child support obligation effective June 11, 2013 and

eliminated any existing arrearage of appellee.

{¶19} Appellant appeals the April 17, 2014 judgment entries and assigns the

following as error:
Delaware County, Case No. 14CAF050033 9

{¶20} “I. THE COURT ERRED AS A MATTER OF LAW WHEN IT

PERMANENTLY TERMINATED APPELLEE-FATHER’S CHILD SUPPORT

OBLIGATION.

{¶21} "II. THE TRIAL COURT LACKED SUFFICIENT EVIDENCE TO FIND

APPELLANT-MOTHER IN CONTEMPT.

{¶22} "III. THE COURT ERRED BY HOLDING APPELLANT-MOTHER IN

CRIMINAL CONTEMPT.

{¶23} "IV. THE COURT DENIED APPELLANT-MOTHER HER DUE PROCESS

RIGHT TO RECEIVE ADEQUATE NOTICE OF THE CONTEMPT CHARGES

AGAINST HER AND HER RIGHT TO CALL WITNESSES, AND ABUSED ITS

DISCRETION AND ERRED AS A MATTER OF LAW IN FINDING TWO CHARGES OF

CONTEMPT AND SENTENCING HER SEPARATELY FOR EACH WHEN THERE

WAS ONLY ONE MOTION PENDING.

{¶24} "V. APPELLEE-FATHER WAS BARRED BY COLLATERAL ESTOPPEL

FROM RE-LITIGATING THE CIVIL PROTECTION ORDERS ISSUED BY A

DIFFERENT COUNTY COURT.

{¶25} "VI. THE COURT ERRED AS A MATTER OF LAW BY ADMITTING AND

CONSIDERING EVIDENCE CONCERNING ALIENATION IN DETERMINING

APPELLANT-MOTHER COMMITTED CONTEMPT.

{¶26} "VII. THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING

FORMER GAL TO TESTIFY AS TO HEARSAY, MATERIALLY PREJUDICING

APPELLANT-MOTHER AS THE COURT RELIED ON SAID TESTIMONY.
Delaware County, Case No. 14CAF050033 10

{¶27} "VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ASSIGNING AND DETERMINING THE ATTORNEY FEES AWARD.

{¶28} "IX. THE COURT ERRED AND ABUSED ITS DISCRETION BY NOT

FINDING APPELLEE-FATHER IN CONTEMPT FOR REPAYMENT OF IRS FEES."

I.

{¶29} In her first assignment of error, appellant argues the trial court erred as a

matter of law when it terminated appellee’s child support obligation. Appellant argues

R.C. 3109.05(D) prohibits such termination when the custodial parent denies or

interferes with the noncustodial parent’s parenting time.

{¶30} Appellant is correct in her assertion that child support and parenting time

are separate issues. Davis v. Davis, 55 Ohio App.3d 196, 563 N.E.2d 320 (8th Dist.

1998); Spencer v. Gatten, 8th Dist. Cuyahoga No. 89398, 2007-Ohio-4071. However,

that does not mean the trial court could not modify or terminate the child support

obligations of appellee if the court determines a modification or termination is warranted

pursuant to the statutory requirements contained in R.C. 3119.79 or R.C. 3119.88.

{¶31} The issue in this case is whether the parties had adequate notice of the

issue of child support modification as to J.G. and J.G. “Regardless of the means by

which the issue of modification is brought before the court, due process requires that

the defending party receive adequate notice of the motion and the opportunity to

present evidence in opposition.” Bellamy v. Bellamy, 110 Ohio App.3d 576, 674 N.E.2d

1227 (6th Dist. 1996). In this case, appellee filed a motion for modification of child

support in April of 2012 that was still pending at the time of the 2013 hearing. However,

this motion requested a modification as to the oldest child, S.G. only, and made no
Delaware County, Case No. 14CAF050033 11

mention of a modification for the other two children. Further, the notice of hearing

issued by the trial court on July 11, 2013, stated the hearing would concern appellant’s

alleged contempt. There is nothing in the record to reflect that any party had notice that

the hearing would be concerned with a proposal to modify or terminate child support as

to the two minor children.

{¶32} The trial court’s sua sponte modification of child support as to J.G. and

J.G. fails to meet the due process requirements of notice and opportunity to defend as

no motion for modification or termination as to J.G. and J.G., either written or verbal,

was before the trial court. See Civ.R. 75(I); McNeeley v. Ortiz, 5th Dist. Stark No. 2010-

CA-00012, 2010-Ohio-4650. Appellant’s first assignment of error is sustained.

II., III., IV.

{¶33} In her next three assignments of error, appellant argues the trial court

erred in finding appellant in civil and criminal contempt. An appellate court’s standard of

review of a trial court’s finding of contempt is abuse of discretion. State ex. rel.

Celebreeze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991).

Civil Contempt

{¶34} The burden of proof for civil contempt is clear and convincing evidence.

Flowers v. Flowers, 10th Dist. No. 10AP-1176, 2011-Ohio-5972. The determination of

clear and convincing evidence is within the discretion of the trier of fact. Clear and

convincing evidence is that measure or degree of proof which will produce in the mind

of the trier of facts a firm belief or conviction as to the allegations sought to be

established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). We will not

disturb the trial court’s decision as against the manifest weight of the evidence if the
Delaware County, Case No. 14CAF050033 12

decision is supported by some competent, credible, evidence supporting the movant’s

burden of proof. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d

578 (1978). A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court. A finding of an error in law is a legitimate ground for reversal, but

a difference of opinion on credibility of witnesses and evidence is not. Flowers v.

Flowers, 10th Dist. Franklin No. 10AP-1176, 2011-Ohio-5972.

{¶35} The purpose of civil contempt is to render punishment that is remedial or

coercive and for the benefit of the complainant. Brown v. Executive 200, Inc., 64 Ohio

St.2d 250, 416 N.E.2d 610 (1980). Normally, contempt proceedings in domestic

relations cases are indirect and civil in nature because their purpose is to coerce or

encourage future compliance with the court’s orders and their concern of behavior that

occurs outside the presence of the court. Flowers v. Flowers, 10th Dist. Franklin No.

10AP-1176, 2011-Ohio-5972.

First Prong of Contempt Motion – Civil Contempt

{¶36} Appellant argues the trial court lack sufficient evidence to find appellant in

civil contempt with regards to failing to notify CSEA that S.G. had withdrawn from

college, which was a reason for terminating support for him per the terms of the

separation agreement.

{¶37} Article D of the parties’ separation agreement, which was attached to and

incorporated into the decree of dissolution, states that “child support shall continue [after

emancipation] as long as the child(ren) continuously attend(s), on a full time or part time

basis any recognized college or school.” Appellant does not challenge the trial court’s
Delaware County, Case No. 14CAF050033 13

finding that she willfully failed to make this notification. Instead, appellant claims the

trial court erred in finding her in contempt because she had no legal duty to notify CSEA

of S.G.’s withdrawal from college.

{¶38} We first note that appellant failed to raise the issue of her legal duty to

notify before the trial court and instead argued substantial notification or compliance

with the notice requirements since the CSEA retroactively adjusted the child support

obligation with regards to S.G. “It is well established that a party cannot raise new

issues or legal theories for the first time on appeal.” Dolan v. Dolan, 11th Dist. Nos.

2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, citing Stores Realty Co. v. Cleveland,

41 Ohio St.2d 41, 322 N.E.2d 629 (1975). Failure to raise this issue before the trial

court operates as a waiver of appellant’s right to assert such for the first time on appeal.

State ex. rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 611 N.E.2d 830 (1993).

{¶39} However, even if we consider appellant’s argument, we find that appellant

was under a statutory duty to notify the CSEA of S.G.’s withdrawal from school. R.C.

3119.87 requires:

the parent who is the residential parent and legal custodian of a child for

whom a support order is issued or the person who otherwise has custody

of a child for which a child support order is issued immediately shall notify

* * * the child support enforcement agency administering the child support

order of any reason for which the child support order should terminate.

With respect to a court child support order, a willful failure to notify the

child support enforcement agency as required by this division is contempt

of court.
Delaware County, Case No. 14CAF050033 14

{¶40} Under the decree, S.G.’s withdrawal from school was a reason to

terminate the child support order. Appellant listed S.G. as a protected person in her

CPO petition in both April of 2011 and May of 2012 as he was residing with her.

Further, on the CPO petition in May of 2012, appellant provided that the two minor

children lived with S.G. and appellant at the address listed on the CPO petition from

August 2010 – present (May 14, 2012). Thus, appellant was S.G.’s residential parent

having care, custody, and control of S.G. until at least May of 2012 and had the

statutory duty to notify CSEA of any reason for which the child support order should

terminate. Appellant admitted in her request for admission that S.G. had not been

continuously enrolled in college since he left Hocking College on February 8, 2011 and

the CSEA case manager testified that the case file indicated no contact from either

party about S.G. quitting school until the agency received information from appellee in

April of 2013 that S.G. quit school in February of 2011. Accordingly, the trial court did

not err in finding appellant in civil contempt with regards to the first prong of appellee’s

motion.

Second Prong of the Contempt Motion – Civil Contempt

{¶41} The trial court found appellant in civil contempt for the deliberate and

willful of deprivation of parenting time. Appellant contends the trial court erred in finding

her in civil contempt for interference with parental rights because there is insufficient

evidence in the record to demonstrate that she was in contempt of the trial court’s

orders. According to appellant, appellee’s lack of parenting time occurred because he

chose not to exercise visitation, not because appellant interfered with it. In support of
Delaware County, Case No. 14CAF050033 15

her argument, appellant points to appellee’s testimony that he made no attempt to call

his children, did not send them cards, and did not send them gifts.

{¶42} However, appellee testified that, due to the CPO’s being filed by appellant,

he did not contact the children because the CPO had been granted against him and he

was afraid that he would be arrested for violating the order if he attempted contact.

Appellee stated he went through the legal channels he knew of to gain visitation,

including filing two motions for change in custody and having his attorney send letters to

appellant’s counsel and the GAL requesting visitation. The trial court found appellant’s

conflicting statements “undermined her credibility so badly that much, if not nearly all, of

her testimony is essentially worthless” and that “in her effort to prohibit the Father any

parenting times or any meaningful relationship with the children, she has abused both

the civil protection statutes and the criminal states by perpetrating a fraud on the courts

by lying under oath without any impunity.” Given the trial court’s characterization of

appellant’s behavior, it is clear that the court did not find appellant to be credible in her

assertion that she complied with the visitation schedule as set forth in the magistrate’s

decision of May 2, 2011 and approved by the trial court on June 9, 2011. The trial court

is in the best position to determine the credibility of the witnesses and there is nothing to

indicate the trial court erred in its credibility determination in this case. In view of the

conflicting testimony and the trial court’s credibility determination, the trial court’s civil

contempt finding with respect to the second prong of appellee’s motion for contempt is

not against the manifest weight of the evidence.
Delaware County, Case No. 14CAF050033 16

Second Prong of the Contempt Motion - Criminal Contempt

{¶43} In addition to finding appellant in civil contempt on the second prong of

appellee’s motion for contempt, the trial court also found appellant in criminal contempt

with regards to the second prong of appellee’s motion for contempt. Appellant argues

the trial court erred in finding her in criminal contempt because the proceeding instituted

was civil in nature, because she did not receive adequate notice of the contempt

charges, and could not call witnesses on her own behalf. Appellee argues the trial court

found appellant in criminal contempt not for the denial of parenting time, but for lying

under oath. Appellee contends that lying under oath constitutes direct contempt and

summary punishment was appropriate. Thus, due process did not require that appellant

be given the opportunity to present witnesses or notice of the pending criminal sanction.

{¶44} The burden of proof for criminal contempt is proof beyond a reasonable

doubt. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980). The

purpose of criminal sanctions is to vindicate the authority of the court and punish past

acts of disobedience and thus penalties for criminal contempt are unconditional and

“may take the shape of an absolute fine for a specific amount or a determinate period of

confinement.” Id.

{¶45} Direct contempt occurs in the presence of the court and obstructs the

administration of justice. R.C. 2705.01. “Since direct contempt interferes with the

judicial process, the court may summarily deal with it in order to secure the

uninterrupted and unimpeded administration of justice.” Sansom v. Sansom, 10th Dist.

Franklin No. 05AP-645, 2006-Ohio-3909. To justify the imposition of a summary

contempt, the act must pose a threat that requires immediate sanction to preserve the
Delaware County, Case No. 14CAF050033 17

dignity and authority of the court and designed to fill “the need for immediate penal

vindication of the dignity of the court.” Cooke v. United States, 267 U.S. 517, 45 S.Ct.

390, 69 L.Ed. 767 (1925). The rule that a court may summarily find one in contempt is

to be applied cautiously because the accused is not afforded the due process

protections ordinarily afforded a criminal defendant. In re Lodico, 5th Dist. Stark No.

2003-CA-00446, 2005-Ohio-172. Further, a summary proceeding is not authorized

simply because the conduct constitutes a direct contempt and even if the facts are clear

because they took place in the presence of a judge, the effect of the contemptuous

conduct must create a “need for speed” to immediately suppress the court-disrupting

misbehavior and restore order to the proceeding. Id. Absent that need, an evidentiary

hearing is required even though the contempt is direct. Id.

{¶46} We first note that the trial court’s judgment entry regarding the criminal

contempt does not specifically indicate, as appellee suggests, that appellant was found

in criminal contempt for lying under oath. While the trial court states, in its findings of

fact, that appellant lied under oath, it is not clear in the judgment entry that this was the

basis for the finding of criminal contempt. Further, even if the trial court’s finding that

appellant lied under oath is the basis for the criminal contempt, the actions in the case

at bar do not rise to the level of a serious threat to orderly proceedings. Although

appellant’s conduct of lying under oath was arguably improper, it did not pose an

imminent threat to the administration of justice sufficient to warrant the imposition of

summary punishment without notice, a hearing, and the opportunity for appellant to

present witnesses on her behalf as it relates to the criminal contempt charge. There

was no “need for speed” to immediately suppress the behavior or restore order to the
Delaware County, Case No. 14CAF050033 18

proceeding, as evidenced by the fact that the trial court did not find appellant in criminal

contempt during the contempt hearing. While the absence of this “imminent threat”

does not preclude the finding of criminal direct contempt, it does preclude the imposition

of summary punishment without notice and an evidentiary hearing on the charge. We

find the trial court erred in summarily imposing criminal contempt sanctions on appellant

without notice and a hearing.

{¶47} Based on the foregoing, appellant’s second, third, and fourth assignments

of errors are sustained in part and overruled in part. The trial court did not err in finding

appellant in civil contempt for the first and second prongs of appellee’s motion for

contempt. However, the trial court erred in summarily punishing appellant for criminal

contempt without notice and an opportunity for a hearing.

V.

{¶48} Appellant argues that the trial court erred as collateral estoppel prevents

the re-litigating of the civil protection orders by the Perry County court.

{¶49} Collateral estoppel precludes re-litigation of any “issue that has been

actually and necessarily litigated and determined in a prior action.” Fort Frye Teachers

Assn v. State Emp. Rels. Bd., 81 Ohio St.3d 392, 395 692 N.E.2d 140 (1998). In order

for collateral estoppel to apply, it must be shown that the fact or issue “(1) was actually

and directly litigated in the prior action, (2) was passed upon and determined by a court

of competent jurisdiction and (3) when the party against whom collateral estoppel is

asserted was a party in privity with a party to the prior action.” New Winchester

Gardens, Ltd. v. Franklin Co. Bd. of Revision, 80 Ohio St.3d 36, 1997-Ohio-360, 684

N.E.2d 312.
Delaware County, Case No. 14CAF050033 19

{¶50} In this case, we find the civil protection orders were not “re-litigated” in this

action. Appellee’s motion for contempt claimed that appellant violated his parental

rights. Pertinent to this claim was the fact that appellant filed two civil protection orders

that included the children and that appellant admitted she was lying with regards to at

least some of the underlying facts from the civil protection order. The facts surrounding

the civil protection orders that included the children and their termination are relevant

and probative on the issues in this case as appellant herself continued to assert, as a

defense to the motion for contempt, the existence of the civil protection orders. Further,

evidence of appellant’s truthfulness in previous court proceedings is probative and

relevant to her credibility in this case. The fact or issue as to appellant’s contempt of

court for violating appellee’s parental rights was not actually and directly litigated in the

prior civil protection order proceedings. Accordingly, collateral estoppel does not apply.

Appellant’s fifth assignment of error is overruled.

VI.

{¶51} In her sixth assignment of error, appellant argues the trial court erred by

admitting and considering evidence on parental alienation because the word “alienation”

is not included in R.C. 2705.031(B), the statute which authorizes a party to file a

contempt motion for the failure to pay support, failure to comply with visitation order, or

interference with visitation order. R.C. 2705.031(B)(2) provides that, “Any parent who is

granted parenting time rights under a parenting time order or decree * * * any person

who is granted visitation rights under a visitation order or decree * * * may initiate a

contempt action for a failure to comply with, or an interference with, the order or

decree.”
Delaware County, Case No. 14CAF050033 20

{¶52} In this case, appellee filed a motion for contempt alleging “persistent

denial of and willful interference with father’s visitation and parental alienation for two

years.” The trial court found appellant in contempt for willfully and purposely denying

parenting times, which is sufficient to cite appellant for contempt pursuant to R.C.

2705.031(B)(2). The trial court made an additional finding that appellant willfully and

purposely alienated the children towards appellee. This additional finding does not alter

the finding of contempt for willfully and purposely denying parenting time and is not

improper simply because R.C. 2705.031(B)(2) does not include the word “alienation.”

See, e.g. Flowers v. Flowers, 10th Dist. Franklin No. 10AP-1176. Appellant’s sixth

assignment of error is overruled.

VII.

{¶53} Appellant argues the trial court abused its discretion by allowing Lammon

to testify as to hearsay. Appellant contends Lammon’s statements contained in her

reports are hearsay because she has had no contact with the children since 2011 and

were thus not based on personal knowledge. Further, that Lammon’s testimony

regarding the children’s presence and testimony at the CPO hearing was impermissible

hearsay.

{¶54} Evidentiary rulings lie within the broad discretion of the trial court. Such

rulings will not be reversed on appeal absent an abuse of discretion which amounts to

prejudicial error. State v. Lundy, 41 Ohio App.3d 163, 535 N.E.2d 664 (1st Dist. 1987).

An abuse of discretion connotes more than an error of law or judgment; it implies that

the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Delaware County, Case No. 14CAF050033 21

{¶55} Hearsay is an out-of-court statement offered for the truth of the matter

asserted and is generally not admissible at trial. Evid.R. 801(C). A statement is not

hearsay when offered for a purpose other than to prove the truth of the matter asserted.

State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588.

{¶56} Appellant argues that Lammon’s entire testimony was hearsay as it lacked

personal knowledge because she had no contact with the children, appellant, or

appellee since 2011 and her statements were based upon her previous report to the

court. We disagree. Lammon testified that although her duties as GAL in the case

ended in June of 2011, she remained as GAL until all outstanding motions were

resolved in February of 2012. Lammon testified concerning her report and her

supplemental reports to the court that she authored throughout the case. Lammon

explained her conclusions were based upon her investigation over the course of the

case, including talking with the children, talking with their counselor, reviewing criminal

and civil records, attending depositions, talking with the prosecuting attorney,

conducting home visits with each parent, and talking to the extended family members of

each parent. Ohio courts have defined “personal knowledge” as “knowledge gained

through firsthand observation or experience, as distinguished from a belief based upon

what someone else has said.” Zeedyk v. Agricultural Soc. of Defiance Cty., 3rd Dist.

Defiance No. 4–04–08, 2004–Ohio–6187, quoting Bonacorsi v. Wheeling & Lake Erie

Railway Co., 95 Ohio St.3d 314, 320, 767 N.E.2d (2002); Black's Law Dictionary (7th

Ed. Rev.1999) 875. Lammon’s testimony, reports, and supplemental reports were

gained through her firsthand observation and experience, not from a belief based upon
Delaware County, Case No. 14CAF050033 22

what someone else said. Accordingly, her testimony was based upon personal

knowledge.

{¶57} Appellant also argues Lammon’s testimony regarding the testimony of the

children at the hearing on the civil protection order petition in Perry County was

inadmissible hearsay. We disagree. When Lammon testified regarding her finding that

appellant interfered with appellee’s parental rights, one of the bases for this finding was

that, prior to the CPO hearing, one child stated that she witnessed appellant engaging in

improper sexual conduct, but that at the CPO hearing a different child testified she

witnessed that conduct. “Given the guardian’s role and the requirements that she

explain her investigation and the basis for her recommendation, her report and

testimony may necessarily include information about what other people told her.”

Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615. These “out-of-court

statements do not become inadmissible ‘hearsay,’ however, unless they are offered in

evidence to prove the truth of the matter asserted * * * an out-of-court statement offered

simply to prove that the statement was made is not hearsay.” Id. In this case,

Lammon’s statements regarding the previous testimony of the child were not presented

to prove the truth of what the child testified about, but were offered simply to prove that

the statement was made and her conclusion that the children flip-flopped their story was

relevant to her recommendations and findings.

{¶58} Appellant finally argues Lammon was not qualified as an expert and thus

could not testify regarding parental alienation. We first note that appellant failed to

object to counsel for appellee’s question to Lammon regarding her opinion of appellant.

Further, “the trial court, as the fact finder, is free to believe, all, part, or none of the
Delaware County, Case No. 14CAF050033 23

testimony of each witness.” Hrabovsky v. Axley, 5th Dist. Stark No. 2013CA00156,

2014-Ohio-1168. The testimony of Lammon alone did not establish parental alienation.

The trial court specifically noted it was making a finding of parental alienation based on

the “totality of the evidence,” including the testimony of appellant and appellee.

{¶59} Moreover, even assuming, arguendo, that her statements were improperly

admitted hearsay, their admission was harmless error. Pursuant to Criminal Rule 52(A),

“any error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.” With regards to the CPO issue, although the trial court’s judgment

entry notes that it found Lammon attended the full hearing on the CPO and listened to

testimony, the trial court did not make any express findings about the statements made

at that hearing by parties that did not testify in this action. See State v. Sorrels, 71 Ohio

App.3d 162, 593 N.E.2d 313 (1st Dist. 1991). Further, the trial court based its finding of

contempt regarding visitation on the totality of the evidence, including the testimony of

appellant, the testimony of appellee, and the documents submitted into evidence, not

simply the testimony of Lammon. The trial court placed particular emphasis on the

testimony of appellant with her conflicting statements and her admission that she lied

under oath. Accordingly, assuming arguendo the testimony of Lammon was improperly

admitted, this error does not affect appellant’s substantial rights. Appellant’s seventh

assignment of error is overruled.

VIII.

{¶60} Appellant contends the trial court erred and abused its discretion in

assigning and determining the attorney fees award. Appellant argues that attorney fees

cannot be assessed for the third prong of appellee’s contempt motion since the trial
Delaware County, Case No. 14CAF050033 24

court did not find appellant in contempt on that charge, that parental alienation is not a

valid basis for finding appellant in contempt and thus the attorney fees associated with

such finding are inappropriate, and that attorney fees awarded extend beyond the

contempt actions.

{¶61} “An award of attorney’s fees in a domestic relations action is committed to

the sound discretion of the trial court.” Flowers v. Flowers, 10th Dist. Franklin No.

10AP1176, 2011-Ohio-5972. This Court will not reverse an award of attorney fees

absent a finding that the trial court abused its discretion. Id.

{¶62} Appellant contends that since parental alienation is not an appropriate

basis for a finding of contempt, the trial court cannot assess attorney fees for the

second prong of appellee’s contempt motion. We disagree. As discussed above, in

finding appellant in contempt, the trial court made a contempt finding based upon the

denial of parenting time and then made an additional finding on parental alienation. In

assessing attorney fees for the civil contempt regarding the denial of parenting time, the

trial court stated there was “extensive discovery and preparation to prove the Mother’s

intent to purposely violate court orders with respect to Father’s parenting times.” The

trial court then made an additional finding with respect to parental alienation. This

additional finding does not alter the finding of contempt for willfully and purposely

denying parenting time and is not improper simply because R.C. 2705.031(B)(2) does

not include the word “alienation.” See, e.g. Flowers v. Flowers, 10th Dist. Franklin No.

10AP-1176, 2011-Ohio-5972. R.C. 3109.051(K) requires that a trial court award

contempt-related costs and reasonable attorney’s fees if it finds a party in contempt.

The trial court properly awarded appellee attorney fees with regard to the denial of
Delaware County, Case No. 14CAF050033 25

parenting time pursuant to this statute. Further, our reversal of the criminal contempt

finding and sanctions against appellant do not alter the award of attorney fees with

regards to the second prong of appellee’s contempt motion, as the trial court also found

appellant in civil contempt for appellant’s denial of appellee’s parenting times and can

properly assess attorney fees based on that civil contempt finding.

{¶63} Appellant argues the trial court erred in awarding attorney fees on the third

prong of appellee’s motion when the trial court did not find appellant in contempt for that

prong. We disagree. R.C. 3105.73(B) provides as follows:

In any post-decree motion or proceeding that arises out of an action for

divorce, dissolution * * * the court may award all or part of reasonable

attorney’s fees and litigation expenses to either party if the court finds the

award equitable. In determining whether an award is equitable, the court

may consider the parties’ income, the conduct of the parties, and any

other relevant factors the court deems appropriate, but it may not consider

the parties’ assets.

{¶64} This case is a post-decree action that arises from a dissolution, thus, R.C.

3105.73 applies. In this case, although the judgment does not include an express

finding that the award of attorney fees and costs with regards to the third prong of the

motion for contempt was equitable, it indicates that the trial court relied on equitable

considerations in the award of attorney fees. The trial court’s decision specifically cites

appellant’s conduct in awarding appellee attorney fees, as allowed for in R.C.

3105.73(B). Although the trial court found appellee had not met the clear and

convincing burden of proof on this third claim, the trial court did find appellee had shown
Delaware County, Case No. 14CAF050033 26

that fact by a preponderance of the evidence. The trial court found an award of

attorney’s fees on the third claim was appropriate given the totality of the circumstances

and the conduct of appellant. Therefore, the trial court did not abuse its discretion in

finding the award of attorney’s fees for the third prong of the contempt motion was

equitable.

{¶65} Appellant finally argues the trial court erred in awarding attorney fees

beyond the scope of the contempt action. We disagree. In this case, appellee asked

for attorney’s fees in excess of $90,000 and specifically requested attorney’s fees for

actions collateral to the contempt motion, including fees for appellee’s defense against

the civil protection orders ($58,481.37) and fees for the defense of appellee against the

criminal charges in Fairfield and Perry counties as a result of reports by appellant

($8,257.50). Appellee requested $24,584.92 in attorney fees for post decree actions in

the instant case. Appellee argued the entire amount was necessary to establish

appellant’s course of conduct of committing acts in violation of the trial court’s orders

concerning parenting times for appellee. However, the trial court determined that the

attorney fees for the other cases were collateral and in nature and cannot be assessed

as an award of attorney fees with respect to the contempt charges.

{¶66} The trial court then examined the exhibits and billing statements in support

of the request for attorney fees and, together with the testimony of the expert witness,

determined the charges that could be reasonably associated with pursuing evidence in

support of the three contempt charges totaled $21,800. On the first prong of the motion

for contempt, the trial court found that appellee had to expend attorney fees to obtain

evidence of the withdrawal from one college and non-attendance records at a second
Delaware County, Case No. 14CAF050033 27

college. On the second prong of the motion for contempt, the trial court determined that

in order for appellee to gather the necessary evidence to establish the willful effort to

deny parenting time appellee had to conduct a large discovery effort. Further, the trial

court specifically stated on the second prong that the fees assessed were only those

fees closely associated with the contempt charge. Thus, any fees that pre-dated the

motion for contempt were those the trial court found specifically were necessary for

appellee to meet his burden with regards to the motion for contempt. Accordingly, the

trial court did not abuse its discretion in awarding appellee $21,800 in attorney fees for

the post-decree motion for contempt.

{¶67} Appellant’s eighth assignment of error is overruled.

IX.

{¶68} Appellant argues the trial court erred and abused its discretion by

determining appellee was not in contempt for the failure to repay IRS fees. The

separation agreement dated March 12, 2010 provides that, “any and all back taxes up

to this date will be paid by husband.”

{¶69} Appellant testified that when she filed her personal tax return for 2012, a

portion of her 2012 tax refund ($4,225.11) was retained by the IRS for liabilities incurred

in 2007. Appellant asked the court to find appellee in contempt for failing to pay the

2007 taxes as required by the separation agreement.

{¶70} Appellee testified that he established a repayment plan with the IRS in

2010 and is currently making monthly payments of approximately $250 per month to the

IRS that are automatically deducted from his checking accounts. Appellee presented

bank records showing automatic withdrawals from the IRS starting in January of 2011.
Delaware County, Case No. 14CAF050033 28

Appellee stated the information he received from the IRS was that he had a zero

balance for 2005, 2006, and 2007. Appellee testified that he has no idea why the IRS

took appellant’s refund as his payment agreement with the IRS rolls all of the previous

years back taxes into one account and he pays one lump sum payment on that

agreement every month until it is paid off. Further, that his repayment agreement was

supposed to stop all collection efforts by the IRS. Appellee testified that there has been

no indication from the IRS that they were no longer going to accept his repayment plan

and the IRS continues to process his payments each month.

{¶71} The trial court found that appellant failed to prove that appellee was not in

compliance with the separation agreement. We find the trial court did not abuse its

discretion in this determination as the IRS’ seizure of the funds was not the result of

noncompliance with the decree by appellee. Appellee testified that he entered into a

repayment program with the IRS to pay the 2007 tax liability and he presented bank

records showing monthly automatic drafts from his account to make the required

payments. Appellee testified that his repayment agreement was supposed to stop

collection efforts by the IRS, that the IRS is still taking money each month from his bank

account, and that he had no indication from the IRS that they were no longer going to

accept the repayment plan they established with him. As noted above, the trial court, as

the fact finder, is free to believe all, part, or none of the testimony of each witness.

State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Appellant’s

ninth assignment of error is overruled.

{¶72} Based on the foregoing, we overrule appellant’s assignments of error V,

VI, VII, VIII, and IX. Further, we sustain appellant’s assignments of error II, III, and IV
Delaware County, Case No. 14CAF050033 29

as to criminal contempt only and overrule the remainder of assignments of error II, III,

and IV as to civil contempt. Appellant’s first assignment of error is sustained. The

judgment entries of the Delaware County Common Pleas Court, Domestic Relations

Division, are affirmed in part and reversed and remanded in part.

By Gwin, J., and

Wise, J., concur;

Hoffman, P.J., concurs in part;

dissents in part

Hoffman, P.J. concurring in part and dissenting in part

{¶73} I concur in the majority's analysis and disposition of Appellant's

assignments of error numbers II, III, IV, V, VI, VIII and IX.
Delaware County, Case No. 14CAF050033 30

{¶74} I further concur in the majority's general analysis and disposition of

Appellant's assignment of error number VII. I write separately as to that assignment of

error only to note I do not believe all evidentiary rulings by a trial court are subject to an

abuse of discretion standard of review.1

{¶75} Finally, while I concur in the majority's decision to sustain Appellant's first

assignment of error, I disagree with its reason for doing so and dissent from its decision

not to sustain the assignment of error on its merits.

{¶76} While I do not disagree with the majority's due process analysis, Appellant

did not raise said claim in her brief to this Court. Appellant presented her argument

strictly as error as a matter of law. I would sustain this assignment as a matter of law

based upon the clear language of R.C. 3109.05(D). Accordingly, I would reverse

outright the trial court's order terminating child support.

1
For a fuller analysis, see my concurring opinion in State v. Baughman, 5th Dist.
Fairfield App. No. 13-CA-49, 2014-Ohio-1821.
[Cite as Geary v. Geary, 2015-Ohio-259.]