Flowers v. FlowersFlowers v. Flowers
Rendered on November 17, 2011
Jack L. Moser, Jr., for appellant.
Gerrity & Burrier, Ltd., and Timothy D. Gerrity, for appellee.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
SADLER, J.
{¶1} Plaintiff-appellant, Kelly Vandenberge, f.k.a. Flowers, appeals from the November 22, 2010 decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, finding her in contempt of court. For the reasons that follow, we affirm.
{¶3} On August 6, 2007, the trial court adopted the parties’ Agreed Shared Parenting Plan (“SPP“) via a Shared Parenting Decree. The SPP provided that while appellant would be the residential parent for school placement purposes, each party would be considered the residential parent and legal custodian of the child at the times they had physical custody of him pursuant to the parenting schedule. A few months after the SPP was adopted by the court, appellant filed, on February 20, 2008, a motion to terminate or, alternatively, to modify the SPP. This motion was followed by appellant‘s May 21, 2008 motions for reallocation of parental rights and responsibilities and suspension of appellee‘s summer parenting time. After involvement from the trial court, the issues pertaining to appellee‘s summer visitation were resolved.
{¶4} On July 7, 2010, appellee filed a motion for contempt, alleging appellant‘s failure to comply with previous orders of the court concerning visitation. Appellee‘s July 7, 2010 contempt motion came before the trial court for hearing on July 30 and August 4 and 5, 2010. In addition to the contempt motion, the trial court also considered the motion
{¶5} This appeal followed, and appellant brings the following five assignments of error for our review:
- [1.] TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN IT FOUND APPELLANT KELLY (FLOWERS) VANDENBERGE IN CONTEMPT OF COURT.
- [2.] THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN IT ORDERED APPELLANT KELLY (FLOWERS) VANDENBERGE TO PAY APPELLEE JAMES FLOWERS THE SUM OF $15,000.00 AS AND FOR ATTORNEY FEES.
[3.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ALLOCATED THE PAYMENT OF GUARDIAN AD LITEM FEES, ORDERING APPELLANT TO PAY 80% AND APPELLEE TO PAY ONLY 20% OF THE FEES. - [4.] TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLEE JAMES FLOWERS “LIBERAL” TELEPHONE PARENTING TIME AND REQUIRING APPELLANT KELLY (FLOWERS) VANDENBERGE TO “FACILITATE” SAID PARENTING TIME BETWEEN 5 P.M. AND 7 P.M. ON NON-POSSESSORY DAYS.
- [5.] TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED THAT APPELLANT KELLY (FLOWERS) VANDENBERGE “SHALL PROVIDE” NON-STOP AIRFARE FOR THE CHILD, INCLUDING ANY REQUIRED UNACCOMPANIED MINOR FEES, TO THE AIRPORT CLOSEST TO RESIDENCE OF APPELLEE JAMES FLOWERS.
{¶6} Appellant‘s five assignments of error arise out of the trial court‘s November 22, 2010 decision that addressed the GAL‘s oral motion for fees and appellee‘s July 7, 2010 motion for contempt.
{¶7} Contempt results when a party before a court disregards or disobeys an order or command of judicial authority. Fidler v. Fidler, 10th Dist. No. 08AP-284, 2008-Ohio-4688, ¶10, citing First Bank of Marietta v. Mascrete, Inc. (1998), 125 Ohio App.3d 257, 263. Contempt of court may also involve an act or omission substantially disrupting the judicial process in a particular case. Fidler at ¶10, citing In re Davis (1991), 77 Ohio App.3d 257, 262. The law surrounding contempt was created to uphold and ensure the effective administration of justice, secure the dignity of the court, and affirm the supremacy of law. Fidler at ¶10, citing Cramer v. Petrie, 70 Ohio St.3d 131, 133, 1994-Ohio-404.
{¶9} Courts may further classify contempt as civil or criminal, depending upon the character and purpose of the contempt sanctions. Sansom at ¶24. Civil contempt is remedial or coercive in nature and will be imposed to benefit the complainant. Id., citing Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139. The burden of proof for civil contempt is clear and convincing evidence. Sansom at ¶24. A sanction for civil contempt must provide the contemnor the opportunity to purge himself or herself of the contempt. Id. ” ‘The contemnor is said to carry the keys of his prison in his own pocket * * * since he will be freed if he agrees to do as so ordered.’ ” Id., quoting Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253.
{¶10} In contrast, criminal contempt sanctions are not coercive, but punitive in nature. Sansom at ¶25, citing State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 2001-Ohio-15. Such sanctions are designed to punish past affronts to the court and to vindicate the authority of the law and the court. Sansom at ¶25. Criminal contempt is usually characterized by an unconditional prison sentence, and the contemnor is not afforded an opportunity to purge himself or herself of the contempt. Id., citing Brown at
{¶11} When reviewing a finding of contempt, including a trial court‘s imposition of penalties, an appellate court applies an abuse of discretion standard. Fidler at ¶12, citing In re Contempt of Morris (1996), 110 Ohio App.3d 475, 479, citing Dozer v. Dozer (1993), 88 Ohio App.3d 296; Arthur Young & Co. v. Kelly (1990), 68 Ohio App.3d 287, 294. An abuse of discretion connotes more than an error of law or judgment; it implies the trial court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶12} Here, the trial court‘s order sentenced appellant to five days in jail, but suspended that sentence so that appellant could purge the contempt. The trial court‘s purpose clearly being coercive, we characterize the November 22, 2010 decision as an indirect civil contempt order.
{¶13} In her first assignment of error, appellant challenges the weight of the evidence upon which the trial court relied. Therefore, appellant ” ‘must demonstrate that the judgment is contrary to the greater weight of the credible evidence.’ ” Fidler at ¶14, quoting Calhoun v. Calhoun, 2d Dist. No. 21923, 2008-Ohio-405, ¶13. While appellant is
{¶14} “The determination of ‘clear and convincing evidence’ is within the discretion of the trier of fact. We will not disturb the trial court‘s decision as against the manifest weight of the evidence if the decision is supported by some competent, credible evidence” supporting the movant‘s burden of proof. Fidler at ¶14, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. As the court explained in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶24, citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, “[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.”
{¶15} Appellant contends 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 it, not because appellant interfered with it. In support, appellant directs us to portions of the transcript in which the parties testified about visits that appellant voluntarily missed and an email in which appellee wrote in an apparently emotional correspondence to appellant that he “[would not] be exercising visitation henceforth.” In contrast, appellee contends
{¶16} We first note that in the November 22, 2010 decision, the trial court indicated its familiarity with this case by noting that “unfortunately, the parties are becoming ‘break-time regulars’ at Franklin County DRJ Court due to [appellant‘s] active coaching of and enabling the parties’ minor child to violate [appellee‘s] parenting time rights.” (Decision at 1.) Additionally, the court referenced appellant‘s concession that she voluntarily entered into the SPP filed on August 6, 2007, and her acknowledgement that Dr. Smalldon was of the opinion that shared parenting is in the child‘s best interest.
{¶17} Though recognizing that appellant blamed appellee for failing to utilize all of his available parenting time and maintaining only sporadic telephone contact with the child, the court concluded that appellant‘s “actions belie her words.” (Decision at 6.) As examples, the court cited appellant‘s selling her home and moving in with her mother without informing appellee, as well as the phone logs submitted by appellee demonstrating his efforts to contact the child via telephone. The court found appellant‘s “deliberate attempts” to deny appellee parenting time were “despicable,” and further characterized appellant‘s behavior as “especially egregious.” (Decision at 11.)
{¶18} In support of her position that the trial court‘s decision is against the manifest weight of the evidence, appellant points primarily to her testimony and an email from appellee in which appellee stated he would not be exercising visitation “henceforth.” In doing so, appellant ignores the testimony and evidence presented by appellee. Appellee testified to his need for the court‘s involvement in 2008 so that he could exercise his summer parenting time. Although appellee explained that the 2009 summer parenting
{¶19} 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 has done everything in her power to comply with the current visitation orders. 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, we do not find that the trial court‘s contempt finding is against the manifest weight of the evidence.
{¶20} Accordingly, we overrule appellant‘s first assignment of error.
{¶22} The essence of appellant‘s argument is that instead of awarding fees pursuant to
If any person is found in contempt of court for failing to comply with or interfering with any order or decree granting parenting time rights issued pursuant to this section or
section 3109.12 of the Revised Code or companionship or visitation rights issued pursuant to this section,section 3109.11 or3109.12 of the Revised Code, or any other provision of the Revised Code, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and require the person to pay any reasonable attorney‘s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.
{¶23} Instead of awarding fees pursuant to
In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, 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.
{¶24} The trial court stated that appellee provided credible testimony that, in total, he has expended more than $100,000 in attorney‘s fees trying to secure an equitable share of parenting time with the child, and that for “filings and hearings in spring/summer 2010 alone, he proffered an attorney fee bill in excess of $13,945, not including the instant hearing.” (Decision at 10.) The court also noted appellee‘s evidence of room and board expenses incident to multiple days of attempting to coax the child to return to Florida with him.
{¶25} The parties stipulated that the fees incurred by appellee were reasonable and necessary. As noted previously, in finding appellant in contempt and ordering her to pay attorney‘s fees in the amount of $15,000, the trial court found appellant‘s behavior “especially egregious” and “despicable.” Additionally, while under
{¶26} For these reasons, we cannot discern that, pursuant to
{¶27} In her third assignment of error, appellant contends the trial court abused its discretion in requiring appellant to pay 80 percent of the GAL fees. According to appellant, the 80/20 allocation is “inequitable, unreasonable, and unconscionable” due to the other financial obligations for which she is responsible.
{¶28} The trial court has discretion over the amount of GAL fees, as well as the allocation to either or both of the parties. Karales v. Karales, 10th Dist. No. 05AP-856, 2006-Ohio-2963, ¶21, citing Davis v. Davis (1988), 55 Ohio App.3d 196, 200; Robbins v. Ginese (1994), 93 Ohio App.3d 370. Fees may be allocated based on the parties’ litigation success and the parties’ economic status. Karales. Moreover, it is proper to allocate GAL fees based upon which party caused the work of the GAL. Karales, citing Jarvis v. Witter, 8th Dist. No. 84128, 2004-Ohio-6628, ¶100, citing Marsala v. Marsala (July 6, 1995), 8th Dist. No. 67301.
{¶29} In the present case, the parties stipulated that the GAL “worked and generated fees” during the case. (Tr. 300.) Additionally, the parties submitted memoranda to the court regarding allocation. Appellee requested that appellant be responsible for 100 percent of the fees. In contrast, appellant requested that GAL interaction necessitated by a third party or the child should be allocated 50/50 between the parties, while in all other instances, the party initiating contact with the GAL should
{¶30} Upon review of the record, we do not find an abuse of discretion in the trial court‘s allocation of GAL fees, and, accordingly, we overrule appellant‘s third assignment of error.
{¶31} In her fourth assignment of error, appellant contends the trial court abused its discretion in granting “liberal” telephone parenting time to appellee and requiring appellant to “facilitate” the same between 5 p.m. and 7 p.m. on non-possessory days.
{¶32} If a party‘s visitation rights are contemptuously interfered with, a court may award compensatory parenting time or visitation to that party.
{¶34} In fashioning the make-up periods of visitation, the trial court stated, “[m]oreover, [appellee] shall be granted LIBERAL telephone parenting time with [the child], and [appellant] is expected to FACILITATE that exercise of [appellee‘s] parenting time. He may initiate calls to her home telephone number or to the child‘s mobile phone number between the hours of 5 pm and 7 pm on non-possessory days.” (Decision at 7.)
{¶35} According to appellant, the trial court‘s November 22, 2010 decision requires that the child be available for telephone calls from appellee between 5 p.m. and 7 p.m. every evening while with her. Appellant contends such an order interferes with the child‘s “after-school homework, sports, and extracurricular activities.” (Appellant‘s brief, 17.) However, we find no evidence in the record to support this broad and conclusory assertion, nor does appellant direct us to any such evidence. Thus, we do not find this portion of the trial court‘s order to be unreasonable, arbitrary or unconscionable.
{¶37} In her final assignment of error, appellant contends the trial court erred in ordering her to pay the child‘s airfare for specified visits to appellee. We are cognizant that the parties’ SPP provides that appellee is responsible for transportation of the child, including all expenses, with the exception of the child‘s transportation to and from Port Columbus International Airport at the beginning and end portions of his parenting times. Additionally, appellee is required to notify appellant at least 96 hours in advance of any travel arrangements made on the child‘s behalf. Because the SPP requires appellee to assume the cost of the child‘s transportation, appellant asserts the portion of the November 22, 2010 decision requiring her to pay airfare and unaccompanied minor fees is unreasonable, arbitrary, and unconscionable. We disagree.
{¶38} The portion of the trial court‘s decision with which appellant takes issue requires appellant to pay the child‘s airfare for the ordered compensatory visitation. Specifically, the decision states that as a remedy for appellant‘s contemptuous interference with appellee‘s parenting time, “[appellee] shall enjoy the entirety of Christmas/winter break in 2010 and spring break 2011 – unless the parties are able to otherwise mutually negotiate and execute an alternate make-up schedule consisting of a minimum of 3 weeks. This shall be in addition to his normal allotment of parenting time with [the child]. For these make-up periods, [appellant] shall provide non-stop airfare for the child, including the required unaccompanied minor fees, to the airport closest to [appellee‘s] residence.” (Decision at 6; emphasis added.)
{¶39} Hence, appellant is being ordered to bear the cost only of the nonstop airfare for the compensatory visitation that the court ordered to make up for the periods of
{¶40} Based on the record, we do not find an abuse of the trial court‘s discretion in ordering appellant to pay the airfare costs associated with the ordered compensatory visitation. Accordingly, we overrule appellant‘s fifth assignment of error.
{¶41} For the foregoing reasons, appellant‘s five assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is hereby affirmed.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.