In re Contempt of Feng
2011 Ohio 4810
Ohio Ct. App.2011Background
- Feng was subject to a domestic violence petition and a shared parenting plan in the DR court case DV-333284 tied to the divorce case D-279920/D-333284.
- The DR court found Feng in contempt for failing to ensure the minor son appeared at a CPO hearing and for noncompliance with prior orders.
- Berger, the ex-h husband, sought orders and police-purported emergency measures for the son's return and for protective relief.
- A magistrate issued a decision in 2010; subsequent assignments and counsel changes occurred, including a guardians ad litem/son counsel.
- Feng was sentenced to jail for three days with an opportunity to purge by producing the son; the record shows the son was later located and returned to Berger.
- Feng appealed the contempt finding, challenging the assignment, due process, sufficiency of the evidence, evidentiary rulings, and the purge condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the contempt order voidable due to improper assignment? | Feng argues improper DR court assignment breached rules. | Berger contends proper assignment complied with local rules and no defect. | Assignment valid; no voidable judgment. |
| Did Feng receive a proper opportunity to present a defense? | Feng claims lack of defense opportunity for contempt. | Court found direct, civil contempt and did not require a defense hearing. | No due process violation; direct civil contempt allowed summary handling. |
| Was the evidence sufficient to support contempt (and was it against weight)? | Evidence insufficient or weight questionable on contumacious conduct. | Evidence clear and convincing; credibility for Feng supported the finding. | Clear and convincing evidence supports contempt; not against weight. |
| Did the court abuse its discretion in evidentiary rulings affecting due process? | Rulings deprived Feng of defense evidence. | Evidence rulings related to the contempt issue; no due process violation. | Rulings did not constitute reversible error; due process not violated. |
| Was the purge condition unreasonable or impossible to comply with? | Producing the son was impossible given lack of knowledge of his whereabouts. | Purging by producing the son was a proper coercive remedy. | Purge condition not an abuse of discretion; purge by producing the son proper. |
Key Cases Cited
- State v. Flinn, 7 Ohio App.3d 294 (1982) (definitions of contempt and standard of review)
- In re Purola, 75 Ohio App.3d 306 (1991) (direct vs indirect contempt distinctions)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (1980) (civil contempt as remedial coercive punishment)
- Offenberg v. Offenberg, 2003-Ohio-269 (Ohio) (standard for contempt penalties and purgeability)
- Montgomery v. Montgomery, 2004-Ohio-6926 (Ohio) (credibility and appellate deference in abuse of discretion)
- Cincinnati v. Cincinnati Dist. Council 51, Am. Fedn. of State, Cty. & Mun. Employees, 35 Ohio St.2d 197 (1973) (due process in contempt and notice requirements)
- State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10 (1981) (due process standards in contempt)
- Strauss v. Strauss, 2010-Ohio-6166 (Ohio) (distinction between direct and indirect contempt)