Polk v. Polk
2012 Ohio 2968
Ohio Ct. App.2012Background
- Mary Beth Polk (McIntosh) and Dean Polk divorced in 2003; McIntosh was named residential parent.
- Summer visitation was governed by Montgomery County’s Standard Order: five weeks (35 days), in increments of 1–2 weeks, with written notice March 1–April 1 and priority of dates if notice is proper.
- Two agreed parenting-time orders (Dec 2007, Apr 2008) allowed adjustments for extracurriculars and transportation arrangements.
- Spring 2010: Polk proposed weeks including Aug 2–16; a conflicting diving competition arose for the older daughter in Florida, prompting proposed rescheduling.
- Ms. McIntosh scheduled her own July and August time and did not approve Polk’s preferred makeup week; communications about scheduling were contentious.
- Trial court found McIntosh in contempt for failing to provide additional summer parenting time and ordered jail time (purge by making up the time) and $350 in attorney fees to McIntosh; Polk cross-appealed on the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McIntosh’s conduct violated the visitation order | McIntosh failed to provide make-up time despite opportunities to reschedule. | No violation of the order; absence of make-up time was not a willful disobedience of a specific directive. | Contempt affirmed; failure to provide make-up time supported. |
| Who bears attorney fees under DR Rule 4.27(B) for the contempt motion | Polk should be awarded the fees as the moving party under the rule. | McIntosh, as the respondent found in contempt, should pay the fees. | Cross-appeal sustained; fee award reversed and remanded to correct who pays. |
Key Cases Cited
- Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971) (contempt standard requires knowledge of a valid order and a violation)
- Fischer v. Fischer, 2012-Ohio-2102 (2d Dist. Clark No. 11 CA 81) (clear and convincing standard for contempt; relevant to burden of proof)
- Underleider v. Underleider, 2011-Ohio-2600 (12th Dist. Clermont Nos. CA2010-09-069, CA2010-09-074) (substantial compliance does not automatically preclude contempt)
- Geiser Durst v. Durst, 2003-Ohio-2029 (3d Dist. Seneca No. 13-02-38) (reasonable steps to comply; substantial compliance not enough)
- Celebreeze v. Gibbs, 60 Ohio St.3d 69 (1991) (substantial evidence standard for contempt findings)
- Willis v. Willis, 149 Ohio App.3d 50 (2002) (appellate review of contempt not reversed absent abuse of discretion)
- Ventrone v. Birkel, 65 Ohio St.2d 10 (1981) (contempt framework and appellate standard of review)