[Cite as Musgrove v. Helms, 2011-Ohio-1614.]




             IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

TINA M. MUSGROVE                               :

        Plaintiff-Appellant                    :   C.A. CASE NOS.08CA96,
                                                                 09CA76
vs.                                            :   T.C. CASE NO. 04DR0178

DAVID LEE HELMS                                :   (Civil Appeal from Common
                                                    Pleas Court, Domestic
        Defendant-Appellee                     :    Relations Division)

                                     . . . . . . . . .

                                        O P I N I O N

                    Rendered on the 1st day of April, 2011.

                                     . . . . . . . . .

Tina M. Musgrove, 219 S. Delmar Avenue, Dayton, OH 45403
     Plaintiff-Appellant, Pro se

Ann Catherine Harvey, Atty. Reg, No. 0054585, 2310 Far Hills Avenue,
Suite 3, Dayton, OH 45419
     Attorney for Defendant-Appellant

                                     . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This        appeal       consolidates     two   appeals   taken   from

post-decree orders entered by the domestic relations court in a

divorce action.           We find that the court did not abuse its discretion

when it held Plaintiff-Appellant, Tina M. Musgrove, in contempt

for failure to pay court-ordered child support in the amount of
                                                                   2

fifty dollars per month.   However, we find that the court abused

its discretion when it also increased Plaintiff-Appellant’s child

support obligation to $341 per month, and when it subsequently

dismissed several motions Plaintiff-Appellant had filed for her

failure to prosecute.

     {¶ 2} The marriage of David Lee Helms and Tina M. Musgrove

was terminated by a decree of divorce on September 28, 2005.    The

court granted the parties’ motion for shared parenting of their

minor child.    Subsequently on May 1, 2007, on David’s 1 motion,

the court terminated its shared parenting order and designated

David the residential parent and legal custodian of the minor child.

 Tina was granted rights of visitation, which was to be supervised

visitation.    The court also ordered Tina to pay child support at

the statutory minimum rate of fifty dollars per month.

                           Case No. 2008CA96

     {¶ 3} On August 7, 2007, David filed a motion pursuant to R.C.

2705.031(B), asking the court to find Tina in contempt for failure

to pay the child support the court had ordered.    David also asked

the court to order an increase in Tina’s child support obligation

due to a change in her financial circumstances.

     {¶ 4} David’s motion and other motions the parties filed came


        1
         For clarity and convenience, the parties are identified
   by their first names.
                                                                        3

on   for   hearing   on    February   11,   2008,    following   several

continuances.    David appeared, represented by counsel.            Tina

failed to appear.    The court denied a motion requesting another

continuance Tina filed on that morning, and proceeded to take

evidence David offered.

     {¶ 5} On March 26, 2008, the court held Tina in contempt for

her failure to pay court-ordered child support of fifty dollars

per month.   The court continued Tina’s sentencing on the contempt

finding to a later date.      The court also increased Tina’s child

support obligation from fifty dollars per month to $341 per month.

     {¶ 6} The court held a hearing on October 22, 2008 to determine

the sentence it would impose for Tina’s contempt.              The court

sentenced Tina to thirty days in jail, but alternatively ordered

that she could purge her contempt and avoid the jail sentence by

paying the full child support arrearage due.        The court journalized

its judgment on November 12, 2008.

     {¶ 7} On November 18, 2008, Tina filed a notice of appeal from

the final order imposing her sentence, and from five orders denying

motions Tina had filed subsequent to the finding of contempt.

That appeal was docketed as Case No. 2008CA96.         Tina filed a brief

in that appeal on June 8, 2009, assigning seven errors for our

review.

                          FIRST ASSIGNMENT OF ERROR
                                                                      4

     {¶ 8} “THE TRIAL COURT’S FINDING OF CONTEMPT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                         SECOND ASSIGNMENT OF ERROR

     {¶ 9} “THE TRIAL COURT’S FINDING OF CONTEMPT WAS BASED ON

UN-CREDIBLE, INSUFFICIENT EVIDENCE.”

     {¶ 10} “Judgments    supported   by   some   competent,   credible

evidence going to all the essential elements of the case will not

be reversed by a reviewing court as being against the manifest

weight of the evidence.”     C.E. Morris Co. V. Foley Construction

Co. (1978), 54 Ohio St.2d 279, Syllabus by the Court.

     {¶ 11} David testified at the hearing on February 11, 2008 that,

following the court’s order requiring Tina to pay child support

of fifty dollars per month, he had never received any support.

(Tr. 7).     The court could reasonably infer from that testimony

that Tina had paid no support.        Tina does not contend that she

paid any support or that David’s testimony is incorrect in that

respect.

     {¶ 12} David’s testimony is neither uncredible nor insufficient

to support the court’s finding of contempt.         David qualifies as

a person with knowledge of the matter to which he testified, which

is sufficient authentication of his competence to admit that

testimony.     Evid.R. 901(B)(1).      Whether David was a credible

witness was, in the first instance, for the trial court to decide.
                                                                       5

 State v. DeHass (1967), 10 Ohio St.2d 230.      The court apparently

found David credible, and we find no abuse of discretion in that

determination.

     {¶ 13} The first and second assignments of error are overruled.

                        THIRD ASSIGNMENT OF ERROR

     {¶ 14} “THE TRIAL COURT ABUSED ITS DISCRETION BY TRYING TINA

IN ABSENTIA.”

     {¶ 15} Tina argues that the court’s decision to proceed with

the February 11, 2008 hearing without her presence or participation

was “the equivalent of a criminal court trying a defendant in

absentia,   against   which   the   U.S.   Constitution   guarantees   a

protection.”    Tina cites In re Contemnor Caron (2000), 110 Ohio

Misc. 58, and R.C. 2705.05(C)(1) in support of her contention.

     {¶ 16} The constitutional rights which Caron explained are

those guaranteed by the Sixth Amendment to the Constitution of

the United States and Section 10, Article I of the Ohio Constitution

that apply to trials of criminal defendants.       The proceedings in

contempt David brought against Tina pursuant to R.C. 2705.031(B)

for failure to pay child support were not criminal, notwithstanding

the jail term the court imposed pursuant to R.C. 2705.05.         That

sentence was remedial, in that it was imposed for the purpose of

terminating a continuing contempt: Tina could purge her contempt,

and avoid the jail term, by bringing her child support obligation
                                                                  6

current.   The proceeding that found Tina in contempt was therefore

civil, In re Davis (1991), 77 Ohio App.3d 257, and the rights of

criminal defendants on which Tina relies have no application.

     {¶ 17} The third assignment of error is overruled.

                      FOURTH ASSIGNMENT OF ERROR

     {¶ 18} “THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING

TINA’S MOTION FOR IN-CAMERA REVIEW OF THE C.S.E.A. FILE WHERE THE

MOTION AND AFFIDAVIT SHOWED PROBABLE CAUSE TO BELIEVE THAT ITS

CONTENTS MAY HAVE EXONERATED HER; THE COURT ACKNOWLEDGED PROOF

OF TINA’S DISABILITY AND APPLICATION FOR SOCIAL SECURITY AND EVA

PURDY’S TESTIMONY FURTHER PROVED TINA’S CLAIM.”

     {¶ 19} Following its finding of contempt, but before the court

imposed Tina’s sentence, Tina filed a Motion for In Camera Review

(Dkt. 228), asking the court to review the files of the Greene

County Child Support Enforcement Agency in order to consider the

information therein concerning her disability, in relation to the

court’s finding that Tina willfully failed to pay child support.

     {¶ 20} Tina does not explain how the contents of the CSEA file

may have exonerated her.    In any event, the transcript of the

October 22, 2008 sentencing hearing shows that Tina was permitted

to present the testimony of Eva Purdy, an employee of CSEA,

concerning those matters.

     {¶ 21} The fourth assignment of error is overruled.
                                                                   7

                       FIFTH ASSIGNMENT OF ERROR

     {¶ 22} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

TINA TO INCARCERATION FOR FAILURE TO PAY SUPPORT WHERE TINA WAS

UNABLE TO PROVIDE HERSELF AND HER CHILDREN WITH THE NECESSITIES

OF LIFE, SUCH AS FOOD, CLOTHING AND SHELTER.”

     {¶ 23} App.R. 16(A)(7) provides that an appellant shall include

in its brief “[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for

review and the reasons in support of the contentions, with citations

to the . . . parts of the record on which appellant relies.”

     {¶ 24} Tina’s argument in support of this assignment of error

states, in its entirety:    “Evidence and testimony demonstrated

that fact.”   Tina’s brief fails to comply with App.R. 16(A)(7),

such that we are unable to determine the error she assigns.’

     {¶ 25} The fifth assignment of error is overruled.

                       SIXTH ASSIGNMENT OF ERROR

     {¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

TINA TO INCARCERATION WHERE SUCH A SENTENCE ARE CONTRADICTORY TO

COURT ORDERS ALREADY IN PLACE IN ITS AND ANOTHER JURISDICTION.”

     {¶ 27} Tina argues that serving the jail term the court imposed

would interfere with the rights of residential parent and custodian

of a daughter from her union with another man, which she was awarded

in another jurisdiction.     Incarceration curtails a subject’s
                                                                     8

liberty interests and the rights associated with them, including

the party’s exercise of custodial rights to children a court

awarded.     If serving her term of incarceration leaves Tina no ready

alternative of her own for her daughter’s care, she may seek the

assistance of the children’s services agency of the child’s county

of residence to arrange for her daughter’s care while Tina is

incarcerated.

        {¶ 28} The sixth assignment of error is overruled.

                        SEVENTH ASSIGNMENT OF ERROR

     {¶ 29} “THE TRIAL COURT’S OVERRULING OF TINA’S MOTION FOR RELIEF

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONSTITUTES

AN ABUSE OF DISCRETION.”

     {¶ 30} On September 9, 2008, Tina filed a form of application

styled “Motion For Relief From Judgment and Request For A New

Hearing,” Tina argued that she was prejudiced by the court’s finding

of contempt following its February 11, 2008 hearing because

“inaccurate and incomplete information (was) offered by Defendant

Helms . . . regarding Plaintiff’s income and ability to pay, among

other    fraudulent   allegations..   .”    The   court   subsequently

overruled Tina’s motion.

     {¶ 31} Tina argues that the court should have considered her

disabilities and other life difficulties in relation to the charges

in contempt, which alleged that she failed to pay any part of the
                                                                    9

fifty dollar minimum child support the court had ordered.      Tina

failed to appear at the February 11, 2008 hearing, at which she

could have offered evidence on those matters.      That failure is

chargeable to Tina, to the extent that she was prejudiced as a

result.    We are not persuaded that the trial court abused its

discretion in denying Tina’s motion for relief from the judgment

finding her in contempt.

     {¶ 32} Tina also argues that the court’s reliance on inaccurate

and incomplete information David offered caused the court to abuse

its discretion when the court increased Tina’s child support

obligation to $341.91 per month.   The transcript of the February

11, 2008 hearing reveals that the court relied on two articles

of evidence David offered.

     {¶ 33} In his testimony at the February 11, 2008 hearing, David

acknowledged as correct his attorney’s suggestion that during the

past year Tina has “been filing things against you . . . in various

courts.”   David stated that Tina “says she’s poverty-stricken.

That’s all I know.   I don’t know that for certain.”     (Tr. 8).

     {¶ 34} His counsel then asked David whether a document she

showed him was “an affidavit of income filed by Tina Pauer in one

of those cases against her ex-husband.”      David replied: “Yes.

It certainly appears to be.”    David also acknowledged counsel’s

suggestion that the document bears the file-stamped date of
                                                                         10

February 21, 2006, and states that Tina is employed and earns

$29,000 per year as a freelance writer.         (Tr. 9-10).      However,

David denied any personal knowledge of Tina’s income.            (Tr. 10).

 The document David was shown was not introduced in evidence and

is not a part of the record before us.

     {¶ 35} The court reminded counsel that Tina had filed an

affidavit of income and expenses with the court dated July 25,

2007.    The   court   noted   that   the   affidavit   states    Tina   is

unemployed,    “although   seeking,     apparently      Social   Security

Disability, although she had $643 a month rejected award amount.”

 The court added that Tina’s affidavit “indicate(s) she has $705

of housing expense and another $260 to $270 in monthly expenses,

but no indication of where she covers them from.”           (Tr. 12).

     {¶ 36} The other article of evidence on which the court relied

was evidence proffered by David’s counsel purporting to be “Tina

Pauer-Helms-Musgrove’s MySpace account” (Tr. 12), in the form of

a video counsel called up on her computer.        David identified the

information presented therein concerning Tina’s job experience

as “what she used to espouse.”        (Id.)   Counsel also pointed out

that the account states that Tina’s income is “less than $30,000,”

a figure which David agreed is consistent with the income of $29,000

in Tina’s 2007 affidavit.      (Tr. 14).

     {¶ 37} The trial court found that Tina had an income of $30,000
                                                                        11

per year, and that she should be paying $400 per month in child

support.     (Tr. 37).       We find that the trial court abused its

discretion in relying on the two articles of evidence David offered

to reach that result.

     {¶ 38} Evid.R. 901 states:

     {¶ 39} “The requirement of authentication or identification

as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is

what its proponent claims.”

     {¶ 40} “Authentication and identification are terms which apply

to the process of laying a foundation for the admission of such

nontestimonial        evidence     as    documents     and     objects.”

Weissenberger’s       Ohio   Evidence   Treatise   (2010    Ed.)   §901.1.

Otherwise,    such     evidence    is   hearsay.      Id.      Professor

Weissenberger points out that the requirement is actually a rule

of relevance connecting the evidence offered to the facts of the

case.   “For example, a writing purportedly signed by a party to

an action is of no relevance and consequently of no significance

to the case unless evidence is offered that it was actually

authorized or signed by that person.”        Id.

     {¶ 41} Evid.R.      901(B) sets out a number of illustrative

“examples of authentication or identification conforming with the

requirements” of the rule.         The most commonly employed is at
                                                                          12

Evid.R.       901(B)(1):   “Testimony   of   a   witness   with   knowledge.

Testimony that a matter is what it is claimed to be.”               Evid.R.

901(B)(1) provides that “any competent witness who has knowledge

that a matter is what its proponent claims may testify to such

pertinent facts, thereby establishing, in whole or in part, the

foundation        for   identification.”           Weissenberger     §901.2.

Conclusive evidence is not required, but the witness’s testimony

must be sufficient to satisfy the requirement of Evid.R. 602 that

“[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has

personal knowledge of the matter.”           Id.

     {¶ 42} When asked whether the affidavit he was shown was one

that Tina had filed in an action in Montgomery County “against

her ex-husband,” David replied: “yes, it certainly appears to be.”

 David’s acknowledgment of what the affidavit appears on its face

to be, in response to counsel’s suggestion, is insufficient to

demonstrate his personal knowledge of the matter.             Evid.R. 602.

 Perhaps he was the “ex-husband” named in the Montgomery County

action, 2 but that was not made clear.             Greater specificity is

necessary to establish personal knowledge.

     {¶ 43} The second article of evidence on which the court relied

was the evidence of Tina’s MySpace account that David’s counsel


          2
              Tina was also formerly married to Shawn Musgrove.
                                                                   13

proffered, which demonstrates that Tina therein claimed an annual

income of $29,000.   Such Internet evidence may be authenticated

per Evid.R. 901(B)(10) when it satisfies an exception to the rule

against hearsay, Evid.R. 802.   Hess v. Ridel-Hess, 153 Ohio App.3d

337, 2003-Ohio-3912, ¶25.    In Hess, the court relied on Evid.R.

803(17), which excludes from the rule against hearsay “[m]arket

quotations, tabulations, lists, directories, or other published

compilations, generally used and relied upon by the public or by

persons in particular occupations,” to admit evidence from the

National Automobile Dealer Association (“NADA”) concerning the

value of a vehicle in a divorce action.

     {¶ 44} The only exception to the rule against hearsay that might

apply to Tina’s statement on her MySpace account that she earns

$29,000 per year is Evid.R. 804(B)(3).   The rule permits admission

of an out-of-court statement against the unavailable declarant’s

interest.   Traditionally, such statements had to be found to be

contrary to the declarant’s pecuniary interest when they were made.

 Application of the rule has since been relaxed, especially with

respect to money matters, but the declaration must still be, in

its substance, adverse to the unavailable declarant’s personal

interest.   Weissenberger, §804.36.

     {¶ 45} Tina’s statement on her MySpace account that she earns

$29,000 per year may be used in a way adverse to her interest,
                                                                   14

as the court used it here to increase Tina’s spousal support

obligation, but as a declaration it is not adverse to her interest

because it is not an assertion of fact which is by its nature

contrary to her interest.    Therefore, the Evid.R. 804(3) exception

would not apply.    We are aware of no other hearsay exception that

would apply.

     {¶ 46} As against those two articles of evidence, the court

had before it an affidavit Tina filed in the action before the

court on July 25, 2007.     (Dkt. 132).   The court acknowledged that

affidavit, which reports monthly expenses of $270 and a “projected”

monthly income of $643.     It appears that the projected income was

a Social Security benefit for which Tina had then applied.       The

affidavit’s date is subsequent to that of the document David was

shown indicating a $29,000 monthly income for Tina.      The MySpace

account was presumably current when it was created, but when that

was done is not indicated.

     {¶ 47} The trial court abused its discretion when it imposed

a monthly child support obligation for Tina of $341, based on the

court’s finding on February 11, 2008, that Tina has an annual income

of $30,000.    That portion of the domestic relations court’s March

26, 2008 order will be reversed.

     {¶ 48} The seventh assignment of error is sustained, in part.

                             Case No. 2009CA76
                                                                   15

     {¶ 49} While Tina’s appeal in Case No. 2008CA96 was pending,

Tina filed three motions on February 24, 2009, asking the court

to reinstate her parenting time, to show cause why David should

not be found in contempt, and to modify her child support

obligation.    Following several continuances, the motions were

set for hearing on September 21, 2009.       Tina moved for another

continuance.   The court denied the requested continuance and, when

Tina failed to appear at the hearing, dismissed Tina’s pending

motions pursuant to Civ.R. 41(B)(1) for failure to prosecute.

Tina filed a notice of appeal from the court’s order of September

28, 2009.   The appeal was docketed as Case No. 2009CA76.

     {¶ 50} Tina filed two briefs in Case No. 2009CA76, one on March

1, 2010 and another on July 26, 2010.     Each brief sets out three

assignments of error for our review.    In each, Tina complains that

the domestic relations court abused its discretion when it

dismissed Tina’s three motions for Tina’s failure to prosecute.

     {¶ 51} The court cited Civ.R. 41(B)(1) as a basis for dismissing

Tina’s motions.   Civ.R. 41(B)(1) states:

     {¶ 52} “Failure to prosecute.     Where the plaintiff fails to

prosecute, or comply with these rules or any court order, the court

upon motion of a defendant or on its own motion may, after notice

to the plaintiff’s counsel dismiss an action or claim.”

     {¶ 53} A dismissal for failure to prosecute operates as an
                                                                   16

adjudication on the merits unless the court, in its order of

dismissal, otherwise specifies.   Westlake v. Rice (1995), 100 Ohio

App.3d 438.    The purpose of requiring notice is to provide the

party in default the opportunity to explain why the case should

not be dismissed with prejudice. Logsdon v. Nichols, 72 Ohio St.3d

124, 1995-Ohio-225.    Therefore, notice of a possible dismissal

must be given to the affected party prior to a Civ.R. 41(B)

dismissal.    Perotti v. Ferguson (1983), 7 Ohio St.3d 1.

     {¶ 54} Written formal notice is not necessary for compliance

with Civ.R. 41(B)(1), but the court must provide sufficient notice

to allow the plaintiff an opportunity to comply with a court order

or explain why the plaintiff has not proceeded to litigate the

case.   Carr v. Green (1992), 78 Ohio App.3d 487.   Notice of a trial

date, alone, does not satisfy the notice requirement.            Id.

However, dismissal for failure to prosecute when the plaintiff

fails to appear at a hearing without explanation is not an abuse

of discretion.   Pembaur v. Leis (1982), 1 Ohio St.3d 89.

     {¶ 55} The court made the following statement at the September

21, 2009 hearing:

     {¶ 56} “The Court: Alright we’re on the record for Case Number

2004DR178, originally Tina Pauer-Helms verses David Lee Helms.

The matter before us today is scheduled for a hearing on the Motion

to Reinstate Plaintiff’s Parenting Time filed on February 24th,
                                                                     17

09, Show Cause Motion filed by the Plaintiff on February 24th, 09

and the Motion to Modify Child Support filed on February 24th of

09.   The matter was set for 1:30, it’s now 1:39 and the Defendant

and his attorney are present.      The Plaintiff has chosen not to

show up.

      {¶ 57} “She sent in for the record motion to continue this matter

today, which I have not yet caused to be file-stamped but I will.

 But I also want the record to reflect that I informed Ms. Musgrove,

I guess she is going by now, I was not granting that and she should

be here.    At which time she attempted to fax some additional

information with some sort of medical excuse not be here.          And

my staff once again told her that she needed to be here.       And the

medical thing that she sent was some sort of statement from Urgent

Care dated yesterday that indicated ‘please call your family doctor

for a follow up visit.’     And so, I’m prepared to dismiss all of

the motions that the Plaintiff has filed and at the same time I

believe that Ms. Musgrove has some time in jail she’s supposed

to be spending.”    (Tr., pp 2-3).

      {¶ 58} The order from which this appeal was taken, in which

the court dismissed the motions Tina filed, was journalized on

September 28, 2009.     The order indicates that on September 15,

2009, Tina requested a continuance because one of her witnesses

would be unavailable on the hearing date.      When the court denied
                                                                  18

that request, because the alternative of a testimonial deposition

was available, Tina argued that health problems prevented her

appearance.   The court rejected those grounds, citing supporting

documentation merely showing that an appointment with her doctor

had been recommended to Tina.    The court concluded:

     {¶ 59} “Upon being informed by the Court staff that the hearing

would go forward as scheduled at 1:30 p.m. on Monday, September

21, 2009 the Plaintiff then attempted an (sic) new tactic to delay

the hearing by faxing to the Court a hand written statement that

she now had a medical appointment she needed to be at.          The

supporting document (copy attached) was simply a report that

indicated she should follow up her visit to St. E’s Urgent Care.

 The Plaintiff failed to show any evidence that she in fact had

any follow up appointment with her family doctor.         Both the

plaintiff and Defendant had been granted a previous request to

continue the case.

     {¶ 60} “The Court finds this was an attempt by the Plaintiff

to delay the proceedings and that the Defendant was entitled to

have the matter heard as he continues to incur attorney fees and

probably time off his work to attend the hearings.    The Plaintiff

was once again informed the hearing would go forward and she needed

to be in Court to prosecute her motions.

     {¶ 61} “Therefore the Court hereby denies the request to
                                                                  19

continue the case.   The Court further orders all of the Plaintiff’s

motions filed February 24, 2009 are dismissed pursuant to Civ.R.

41(B)(1) for the failure of the Plaintiff to appear and go forward

an (sic) present her case.”    (Dkt. 294).

     {¶ 62} Tina’s failure to appear was not without explanation.

 She had put reasons of health before the court in her motion for

a continuance.   The court rejected those reasons, finding the

grounds Tina submitted were insufficient to justify the continuance

she requested, which the court found to be “an attempt by the

Plaintiff to delay the hearings.”   (Dkt. 294).   We cannot conclude

that the court abused its discretion in so finding.

     {¶ 63} However, the court could also order a dismissal pursuant

to Civ.R. 41(B)(1) for Tina’s resulting failure to prosecute her

motions only after prior notice to Tina of the court’s intention

to do that, also allowing Tina sufficient time to explain her

reasons or correct her failure.     The court’s statement that its

staff had “told [Tina] she needed to be here” does not demonstrate

Tina was notified that her failure to appear could result in

dismissal of her motions.    An examination of the record fails to

demonstrate that any of the court’s orders scheduling a hearing

on Tina’s motions contained any form of warning that her motions

could be dismissed should Tina fail to appear.     The court abused

its discretion in dismissing Tina’s motions, absent that prior
                                                                  20

notice.

     {¶ 64} The three assignments of error in the brief Tina filed

on March 1, 2010, and the first, second, and third assignments

of error in the brief Tina filed on July 26, 2010, are sustained.

     {¶ 65} The brief Tina filed on July 26, 2010, contains a fourth

assignment of error, which states:

     {¶ 66} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING

ADDITIONAL REQUIREMENTS ON TINA BEFORE ACCEPTING ANY FURTHER

PLEADINGS FOLLOWING THE SEPTEMBER 21, 2009 HEARING.”

     {¶ 67} The order from which the appeal in Case No. 2009CA76

was taken prohibits Tina from filing additional motions or

pleadings unless she first pays any remaining court costs due and

owing by her in the action.    Tina argues that the court’s order

unreasonably limits her constitutional right of access to the

courts.

     {¶ 68} Article I, §16 of the Ohio Constitution states: “All

courts shall be open, and every person, for an injury done hin

in his land, goods, person, or reputation, shall have remedy by

due course of law and shall have justice administered without denial

or delay.”

     {¶ 69} Having sustained the prior assignments of error, we will

reverse and vacate the judgment from which the appeal was taken,

including the court’s order concerning Tina’s obligation to pay
                                                                  21

court costs.   We are unaware of any provision in the law or rules

of procedure that authorizes a court to prohibit a party from filing

motions in an action until obligations to pay costs that have been

imposed on the party are satisfied.

     {¶ 70} R.C. 2303.08 authorizes the clerk of courts to “refuse

to accept for filing any pleading or paper submitted for filing

by a person who has been found to be a vexatious litigator under

section 2323.52 of the Revised Code and who has failed to obtain

leave to proceed under that section.”   The record does not reflect

that the domestic relations court made a finding pursuant to R.C.

2323.52.   The court may not impose a like limitation as a method

of collecting unpaid court costs.

     {¶ 71} The fourth assignment of error is sustained.

                               Conclusion

     {¶ 72} The domestic relations court’s order of March 26, 2008,

is Reversed, to the extent that it increased Tina’s child support

obligation to $341 per month from fifty dollars per month, but

is Affirmed with respect to the finding of contempt made therein

for Tina’s failure to comply with that prior support obligation.

 The court’s order of November 12, 2008, imposing a sentence upon

that finding of contempt is likewise Affirmed.

     {¶ 73} The domestic relations court’s order of September 28,

2009, dismissing the three motions Tina filed, is also Reversed.
                                                              22

The case is remanded to the domestic relations court for further

proceedings, consistent with this opinion.



FAIN, J. And DONOVAN, J., concur.

Copies mailed to:

Tina M. Musgrove
Anne Catherine Harvey, Esq.
Hon. Steven L. Hurley
