[Cite as Freihofner v. Freihofner, 2020-Ohio-1409.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JENNIFER S. FREIHOFNER : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ANTON FREIHOFNER : Case No. 19 CAF 06 0038
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 17DRA030147
JUDGMENT: Judgment Vacated and Remanded
DATE OF JUDGMENT: April 10, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH J. MOLNAR LOUIS H. HERZOG
21 Middle Street 43 East Central Avenue
Galena, OH 43021 Delaware, OH 43015
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Anton Freihofner, appeals the May 10, 2019
judgment entry of the Court of Common Pleas of Delaware County, Ohio finding him in
contempt. Plaintiff-Appellee is Jennifer S. Freihofner.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 10, 2017, appellee filed a complaint for divorce. A final hearing
was completed on November 29, 2018. The parties were given until December 21, 2018
to file closing arguments.
{¶ 3} On January 14, 2019, prior to a final decision being issued, appellee filed a
motion for contempt, alleging appellant failed to pay the child care provider as ordered,
and permitted contact between the children and his attorney contrary to a prior order. A
hearing was scheduled for February 13, 2019; however, the hearing was conducted as a
management conference with counsel. According to appellant's statement of the case
and of the facts in his appellate brief, the trial court was to consider the amount due and
owing the child care provider and incorporate that amount into the final decision without
reaching a decision on the contempt. By judgment entry filed May 10, 2019, the trial court
found appellant in contempt for failure to pay his portion of the child care expense. The
trial court sentenced appellant to ten days in jail with the ability to purge the contempt
upon paying the outstanding amount and appellee's attorney fees.
{¶ 4} On June 5, 2019, appellant filed a motion to reconsider, arguing a hearing
was never held on the contempt motion per the agreement to include any monies due
and owing in the final decision. This motion was not ruled upon.
{¶ 5} On June 10, 2019, appellant filed a notice of appeal of the May 10, 2019
contempt finding. Because a transcript of the February 13, 2019 hearing was unavailable,
appellant filed a statement of evidence on August 28, 2019. This matter is now before
this court for consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL [COURT] ABUSED ITS DISCRETION AND PREJUDICED
THE RIGHTS OF THE APPELLANT BY ISSUING A FINDING OF CONTEMPT
WITHOUT HOLDING A HEARING OR TAKING EVIDENCE AS SPECIFICALLY
REQUESTED BY APPELLANT AND AS REQUIRED BY R.C. 2705.05(A)."
II
{¶ 7} "THE COURT COMMITTED PREJUDICIAL AND PLAIN ERROR AND
VIOLATED APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE AND
EQUAL PROTECTION CLAUSE OF THE UNITED STATES AND OHIO
CONSTITUTIONS BY ORDERING A FINDING OF CONTEMPT WITHOUT HOLDING A
HEARING."
I
{¶ 8} In his first assignment of error, appellant claims the trial court abused its
discretion in failing to hold a hearing before finding him in contempt. We agree.
{¶ 9} At the outset, we note a transcript of the February 13, 2019
hearing/management conference does not exist. See Certification of No Audio Transcript
(02/13/2019) filed August 29, 2019. Therefore, appellant filed a statement of evidence
with this court on August 28, 2019. The statement of evidence was served on appellee
and appellee did not file any objections or proposed amendments; however, appellant did
not submit the statement of evidence to the trial court for settlement and approval.
Therefore, we find appellant's statement of evidence does not comport with App.R. 9(C).
{¶ 10} Appellee did not file an appellate brief. Pursuant to App.R. 18(C), "in
determining the appeal, the court may accept the appellant's statement of the facts and
issues as correct and reverse the judgment if appellant's brief reasonably appears to
sustain such action."
{¶ 11} On January 14, 2019, appellee filed a motion for contempt against
appellant, alleging events that occurred after the final hearing. By judgment entry filed
January 18, 2019, the trial court set a hearing on the motion for February 13, 2019. By
judgment entry filed May 10, 2019, the trial court found appellant in contempt and
sentenced him to ten days in jail with the ability to purge the contempt upon paying the
outstanding amount ($370.00), appellee's attorney fees ($750.00), and the costs
associated with the motion. The trial court noted the scheduled hearing "was instead
conducted as a management conference with counsel." The August 29, 2019 certification
of no audio transcript indicates the contempt hearing went forth as a "Non-Oral
Hearing/Case Management Conference with Counsel."
{¶ 12} In his statement of the case and of the facts at 4-5, appellant states the
following:
Undersigned counsel did specifically clarify that there was no
agreement for any finding as to any specific violation of a court order in the
nature of contempt. Undersigned counsel further indicated an ability and
preparedness to go forward on the issue of contempt. However, the trial
court and counsel for Appellee agreed that the economics of the issue, as
minor as it was (less than $400), was such that trial expenses to resolve the
contempt issue was imprudent at that time since a full decision was
imminent. Accordingly, the hearing was converted to a "management
conference."
At that moment, undersigned Counsel further apprised the trial Court
that no contempt order would be issued without an actual hearing * * *.
Accordingly, the Trial Court advised that it would not address the specific
issue of Contempt, and would roll the other issues into the larger decision
to be issued on the trial completed in 2018.
{¶ 13} R.C. 2705.05(A) states in part: "In all contempt proceedings, the court shall
conduct a hearing. At the hearing, the court shall investigate the charge and hear any
answer or testimony that the accused makes or offers and shall determine whether the
accused is guilty of the contempt charge."
{¶ 14} We find the state of the record and appellant's brief reasonably appear to
support appellant's argument. A hearing on the contempt motion was not held.
{¶ 15} Upon review, we find the trial court abused its discretion in finding appellant
in contempt without holding a hearing.
{¶ 16} Assignment of Error I is granted.
II
{¶ 17} Based upon our decision in Assignment of Error I, this assignment of error
is moot.
{¶ 18} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby vacated, and the matter is remanded to said court to follow the agreement reached
during the management conference or hold a hearing on the contempt motion as
requested by appellant in his appellate brief at 8.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.
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