In re L.R.H.
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU 11104302
RELEASED AND JOURNALIZED: June 18, 2015
Anne S. Magyaros
Alex B. Carr
Law Offices of Anne S. Magyaros, L.L.C.
The Gallery Building
516 East Washington Street
Chagrin Falls, OH 44022
ATTORNEY FOR APPELLEE
For Mother, R.S.
Cheryl M. Wiltshire
Stanard & Corsi Co., L.P.A.
1370 Ontario Street, Suite 748
Cleveland, OH 44113
Guardian Ad Litem
Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road, Suite 320
Rocky River, OH 44116
{¶1} During a pretrial hearing in a custody dispute between plaintiff-appellee mother, R.S., and defendant-appellant father, G.H., the court became aware that the father had been secretly recording conversations between the parties and some therapists treating their child, L.R.H. The court enjoined the father from recording any future conversations and ordered him to give the mother any recordings in his possession. The father filed a motion to vacate the injunction, but the court denied the motion and later found him in contempt for not giving the mother all recordings as ordered. The contempt citation is the basis for this appeal.
{¶2} The injunction at the heart of this appeal was issued by the court following an unrecorded pretrial conference between the judge and counsel for the parties. That order states in relevant part:
It has come to the attention of the court that the father has been surreptitiously recording (video/audio) the activities of the parties, the child, associates of the parties and various therapists and evaluators involved in the case. The court has been further apprised that the father has been publishing matters on the Internet, which relate specifically to the parties and this case. In these regards [sic], the court finds such activities by the father to be contrary to the best interests of the child and in contravention of the orderly proceedings before this court.
Now, therеfore, the court hereby orders the father to cease and desist immediately from such further activities. The father is hereby enjoined from recording the conversations and activities of the parties, the child, any associates of the parties, the therapists and evaluators involved in the case and any other person associated with the case without the prior written authorization of this court.
It is further ordered that the father turn over within 14 days of the date hereof to both the mother‘s attorney and the child‘s guardian either the originals or copies of all recordings, both audio and video, heretofore made by the father of the parties, the child, the parties’ associates, the therapists and evaluators and of anyоne else associated with this case which have been made since the filing of the father‘s Complaint to Determine Custody on March 9, 2011.
{¶3} The father filed a motion to vacate the injunctive order on grounds that the court improperly granted injunctive relief with no motion before it and without affording the parties a hearing, with notice, as required by
{¶4} The father twice attempted to appeal from the denial of his motion to vacate. We consolidated both appeals and then dismissed them for want of a final order. See In re L.R.H., 8th Dist. Cuyahoga Nos. 100159 and 100292, Motion No. 471999 (Feb. 5, 2014).
{¶6} The court found that the father failed to turn over all audio and video recordings within 14 days as ordered and that the father “failed to demonstrate any justifiable excuse for his disobedience.” The court found the fаther in contempt and sentenced him to serve ten days in the county jail, but allowed him to purge the contempt citation by giving him 14 days in which to turn over copies of all audio and video tapes “in formats prescribed respectively in writing by both the mother‘s attorney and the child‘s guardian so that the same may be played on the audio and video equipment used by the mother‘s attоrney and guardian.” The court also ordered the father to pay the mother‘s attorney fees expended in prosecuting the motion to show cause.
{¶7} The father appealed. We stayed execution of the court‘s contempt citation after the father posted a supersedeas bond.
{¶9}
{¶11} In choosing not address any assignments of error relating to the issuance of the injunction, we note that there is no real prejudice to the father because nothing about the contempt citation derived from the injunction itself, so any error in the manner in which the court issued the injunctive order would have been harmless.
{¶12} It is important to understand that there were two components tо the court‘s order: the first enjoined the father from making any further recordings; the second ordered him to turn over to the mother any recordings he had made. The first part of the order truly was a “prohibitive injunction” because it enjoined the father from making further recordings, thus preserving the status quo between the parties. State ex rel. GMC v. Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 12 (“A prohibitory injunction preserves the status quo by enjoining a defеndant from performing the challenged acts in the future.“). We do not understand the father‘s position in this appeal to be that he had the right to surreptitiously record conversations, nor that he has the right to continue to make recordings in the future. Nothing in his argument indicates that he believes the court erred by enjoining him from recording events in the future.
{¶16} The father‘s argument is premised on the mother‘s attorney agreeing to grant him an extension of time in which to produce the recordings. The mother‘s attorney does not dispute that she agreed to extend the 14-day period, having stated in an affidavit she “granted” counsel for the father the additional time he requested. The problem here should be obvious: absent specific language in the order directly authorizing counsel for the mother to grant an extension of time to the father, the parties had no ability to extend the court‘s deadline for the production of the recordings. BAC Home Loans Servicing L.P. v. Komorowski, 8th Dist. Cuyahoga No. 96631, 2012-Ohio-1341, ¶ 21. No such language authorizing the parties to extend the deadline appeared in the order; to the contrary, the court‘s order was very clear in setting a deadline of “14 days of the date” of the order for compliance. If the father was having difficulty complying with that deadline, his application for an extension of time needed to be made to the court. The father‘s insistence that he had been given an extension of time has no merit because nothing in the record indicates that the court granted an extension of time.
{¶20} Finally, the father maintains he complied with the court‘s order to produce the recordings at the time thе court conducted the contempt hearing, thus rendering the motion to show cause moot. The difficulty with this argument is that compliance with the order to produce the recordings was dependent upon the court‘s deadline. The father was arguably in contempt when the deadline for producing the recordings passed without compliance. His “better late than never” compliance with the order did not render his contempt moot, Brown v. Kelly, S.D.N.Y. No. 05 Civ. 5442, 2007 U.S. Dist. LEXIS 39527 (May 31, 2007), fn. 57, although it may have been a factor in mitigation of punishment.
{¶21} After finding the father in contempt for failing to produce the recordings as ordered, the court set a new deadline for compliance and ordered that the recordings be “in formats prescribed respectively in writing by both the mother‘s аttorney and the child‘s guardian so that the same may be played on the audio and video equipment used by the mother‘s attorney and guardian.” The father argues that this order is “unclear, vague and impossible to understand” and improperly expands upon the court‘s initial order for production of the recordings.
{¶23} Finally, the father complains that the court abused its discretion by giving him only one day in which to comply with its orders.
{¶24} After finding the father in contempt, the court allowed him to purge the contempt under the following conditions: that he present to the mother‘s attorney and the guardian ad litem “not later than September 30, 2014, copies of all audio and video recordings described in the Judgment Entry of June 21, 2013[.]” The court journalized this order on September 25, 2014. The father maintains that he did not receive the order until Seрtember 29, 2014, which effectively gave him only a day in which to hand over the tape recordings.
{¶26} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court — juvenile division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR