[Cite as In re Guardianship of Polete, 2018-Ohio-5275.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 IN THE MATTER OF THE                                     :
 GUARDIANSHIP OF BAILEY RHEE                              :
 POLETE                                                   :   Appellate Case No. 28003
                                                          :
                                                          :   Trial Court Case No. 2016-GRD-216
                                                          :
                                                          :   (Appeal from Common Pleas Court –
                                                          :   Probate Division)
                                                          :
                                                          :

                                               ...........

                                              OPINION

                          Rendered on the 28th day of December, 2018.

                                               ...........

ROBERT H. LYONS, Atty. Reg. No. 0001750, 8310 Princeton-Glendale Road, West
Chester, Ohio 45069
      Attorney for Appellant

JUSTINE Z. LARSEN, Atty. Reg. No. 0095525, 6 North Main Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Appellee

                                             .............




TUCKER, J.
                                                                                              -2-




       {¶ 1} Sean Polete appeals from the judgment of the Montgomery County Court of

Common Pleas, Probate Division, finding him in contempt. Mr. Polete contends that the

finding must be overturned because there was no evidence that he intended to defy the

court. He further contends that there was no probable cause to issue a show cause

order against him. Mr. Polete also claims that the finding must be overturned because

he was denied the right to a jury trial and because the court improperly shifted the burden

of proof to him. Finally, Mr. Polete contends that the court improperly charged him with

indirect, rather than direct, criminal contempt.

       {¶ 2} We conclude that the probate court did not abuse its discretion in finding Mr.

Polete in contempt of court. There was sufficient evidence in the record upon which a

reasonable trier of fact could conclude that Mr. Polete’s acts were intentional and that

they impeded the effective administration of justice. We further conclude that there was

no requirement for a jury trial or a showing of probable cause. Finally, we conclude that

the court did not shift the burden of proof and that it did not err in charging him with indirect

contempt. Accordingly, the judgment of the probate court is affirmed.



                              I. Facts and Procedural History

       {¶ 3} Sean and Carrie Polete are the parents of Bailey Polete, an adult child who

has numerous, significant medical and developmental disabilities that render her

incapable of caring for herself. In 2016, following Bailey’s 18th birthday, Mrs. Polete filed

an application to become Bailey’s guardian. Mr. Polete filed a consent and waiver of

notice with the probate court.        A hearing was scheduled for November 8, 2016.
                                                                                         -3-


However, before the hearing began, Mr. Polete expressed the desire to file an application

to become a co-guardian. It appears that the parties were having marital problems at

that time. The hearing was continued, and the matter was referred for mediation, which

was unsuccessful. Mrs. Polete filed for divorce in December 2016.

      {¶ 4} A guardian ad litem was appointed. The subsequently-filed report of the

guardian ad litem recommended that a neutral third-party be appointed as Bailey’s

guardian. In March 2017, both parties consented to the appointment of a third-party

guardian and withdrew their respective guardianship applications.              Mr. Polete

subsequently sought to withdraw his consent, but the probate court denied the request.

On April 7, 2017, the court appointed Melinda Poist, one of Bailey’s therapists, as

guardian.

      {¶ 5} In July 2017, Poist filed a motion to hold Mr. Polete in contempt, alleging that

he had engaged in repeated behavior that interfered with Bailey’s caregivers and which

also interfered with Poist’s ability to act as guardian. The motion was overruled based

upon the finding that the court had not issued any order directing or prohibiting Mr.

Polete’s actions. Thereafter, Mr. Polete filed a guardianship complaint against Poist. In

August 2017, Poist filed a motion seeking to resign as guardian, citing Mr. Polete’s

behavior, which she claimed rendered her unable to continue in the capacity of guardian.

      {¶ 6} On September 15, 2017, Mr. Polete attempted to file an application for

guardianship of Bailey. After reviewing the application, the court issued a show cause

order alleging that the form contained a forged signature. A hearing on the show cause

order was conducted on October 24, 2017. Danielle Cross, a clerk for the probate court,

testified that she interacted with Mr. Polete on September 15. She testified that he
                                                                                             -4-


attempted to file an application for guardianship, but that when she observed that the

application was a duplicate of a previously-filed application, she refused to accept the

form for filing. Cross testified that she printed a blank application and permitted Mr.

Polete to complete it while standing at her desk. Cross further testified that Mr. Polete

returned the completed form, and that as she was taking it to the court’s chambers she

noted that it had a signature purporting to be the signature of Mr. Polete’s attorney, Carol

Holm, despite the fact that only Mr. Polete had executed the form.1

       {¶ 7} Holm testified that Mr. Polete came to her office around 2:00 p.m. on

September 15, 2017. She testified that she signed a guardianship application in the

place designated for counsel’s signature. Holm further testified, upon examining the

second application that Mr. Polete attempted to file, that she had not executed the

signature purporting to be hers.

       {¶ 8} Mr. Polete also testified that he did bring his previously-filed application to his

meeting with Holm. He testified that she reviewed the form and signed it.2 Mr. Polete

testified that she then directed him to go to the courthouse to file the form. According to

Mr. Polete, it was approximately 3:00 p.m. when he left Holm’s office and walked across

the street to the courthouse. He testified that Cross declined the document and that she

provided him with a blank form to complete. Mr. Polete testified that he remained with


1
  Holm, who was Mr. Polete’s third attorney in this matter, subsequently withdrew as
counsel, and Mr. Polete hired new counsel. His fourth counsel represented him during
the hearing on the motion to show cause, following which Mr. Polete again engaged new
counsel.

2
  Mr. Polete’s original application was not signed by an attorney as he was not
represented by counsel at the time of its filing. Apparently Holm did not notice that the
application had a bar-code on it indicating its previous filing.
                                                                                       -5-


Cross while he completed the form. Mr. Polete testified that he merely “transcribed” the

information from the denied application onto the blank application, and that he “believed”

he had Holm’s implied consent to sign her name to the document because she had “just

signed it and [he] had not changed any information.”3 Tr. p. 35-36. Mr. Polete further

testified that he had “no intent to defraud the Court” or to “delay or impede the judicial

process.” Tr. p. 37. Although he insisted that by copying Holm’s signature onto the

form, he had merely been attempting to “transcribe” the material from one form to the

other, he did admit that he signed the name “Carol Holm” to the form without any

indication or acknowledgement that he was signing on her behalf.

        {¶ 9} Following the hearing, the magistrate entered a decision finding Mr. Polete

in indirect criminal contempt of court and ordering him to pay, as a sanction, the sum of

$500.    Mr. Polete filed objections which were overruled by the probate court.       The

probate court adopted the decision of the magistrate. Mr. Polete appeals.



                                      II. Contempt

        {¶ 10} Contempt of court is behavior that “embraces a despising of the authority,

justice or dignity of a court” and that “tends to bring the administration of the law into

disrepute and disregard or otherwise tends to impede, embarrass or obstruct the court in

the performance of its functions.” In re Green, 172 Ohio St. 269, 175 N.E.2d 59 (1961),

paragraph one of the syllabus, reversed on other grounds, 369 U.S. 689, 82 S.Ct. 1114,

8 L.Ed.2d 198 (1962). “The purpose of contempt proceedings is to secure the dignity of


3
  The record belies Mr. Polete’s claim that he did not change any information. However,
it appears that he changed only the addresses of both parties, which had changed since
the first application was filed.
                                                                                      -6-

the courts and the uninterrupted and unimpeded administration of justice.” Windham Bank

v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph two of the syllabus.

      {¶ 11} “Contempt may be characterized as either direct or indirect.” Sansom v.

Sansom, 10th Dist. Franklin No. 05AP-645, 2006-Ohio-3909, ¶ 23, citing Byron v. Byron,

10th Dist. Franklin No. 03AP-819, 2004-Ohio-2143, ¶ 12.             Direct contempt is

“misbehavior in the presence of or so near the court or judge as to obstruct the

administration of justice.” R.C. 2705.01. Indirect contempt involves behavior that occurs

outside the presence of the court and demonstrates a lack of respect for the court or its

lawful orders. Byron at ¶ 12, citing State v. Drake, 73 Ohio App.3d 640, 643, 598 N.E.2d

115 (8th Dist.1991). A person found to be in contempt of court is subject to punishment.

See R.C. 2705.05.     The character and purpose of the punishment defines whether

contempt is classified as civil or criminal. Brown v. Executive 200, Inc., 64 Ohio St.2d

250, 253, 416 N.E.2d 610 (1980). While civil contempt contemplates punishment that is

remedial or coercive and for the benefit of the complainant, criminal contempt is solely

punitive. Id. at 253-254.

      {¶ 12} Acts of direct contempt may be summarily punished. In re Davis, 77 Ohio

App.3d 257, 263, 602 N.E.2d 270 (2d Dist.1991). However, where “the acts or omissions

occur outside the presence of the court, and where confinement is a possible sanction,

an accused contemnor has ‘many of the significant constitutional safeguards required in

criminal trials.’ ” In re Estate of Carrier, 1st Dist. Hamilton No. C-030249, 2003-Ohio-

6919, ¶ 15, citing Brown at 212, quoting State v. Kilbane, 61 Ohio St.2d 201, 205, 400

N.E.2d 386 (1980). “These rights include reasonable notice before the hearing, the right

to reasonable time to prepare a defense, the right to counsel, the right to subpoena and
                                                                                        -7-


call witnesses, the right to invoke the privilege against self-incrimination (although the

contemnor may be called as a witness), the right to an impartial judge, and proof of guilt

beyond a reasonable doubt.” (Citation omitted) Id.       Further, “[i]n cases of criminal,

indirect contempt, it must be shown that the alleged contemnor intended to defy the court.”

Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 573 N.E.2d 98 (1991),

paragraph two of the syllabus.

      {¶ 13} A trial court's finding of contempt will not be disturbed on appeal absent an

abuse of discretion. State ex rel. Delco Moraine Div., Gen. Motors Corp. v. Indus.

Comm. of Ohio, 48 Ohio St.3d 43, 44, 549 N.E.2d 162 (1990), citing State ex rel. Ventrone

v. Birkel, 65 Ohio St.2d 10, 417 N.E.2d 1249 (1981). The term “abuse of discretion”

implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).



                      III. Contempt Elements Were Established

      {¶ 14} Mr. Polete’s first assignment of error states:

      THE TRIAL COURT ERRED IN CONCLUDING THAT ALL ELEMENTS OF

      INDIRECT CRIMINAL CONTEMPT WERE SATISFIED.

      {¶ 15} Mr. Polete contends that the finding of contempt was not supported by the

evidence because there was no showing of intent. He further appears to argue that the

finding of contempt was erroneous because his actions cannot be deemed to have

impeded the administration of justice.

      {¶ 16} We begin with the notion that submitting a document, containing a forged

signature, for filing in the court’s record cannot constitute indirect criminal contempt
                                                                                         -8-


because it does not impede the administration of justice. We agree that there was no

direct evidence presented that Mr. Polete’s actions impeded the administration of justice,

however, it would intuitively seem that forging a signature on a document required to be

filed in a guardianship action and then submitting it for filing with a court constitutes

misconduct. In Fidelity Fin. Co. v. Harris, 102 Ohio App. 497, 126 N.E.2d 812 (8th

Dist.1955), the court of appeals found that the falsification of documents which are a

required part of a judicial proceeding constitutes an obstruction of the administration of

justice that “embarrasses the court as well as brings it into disrespect,” and constitutes a

fraud upon the court. Id. at 501. See also Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477,

20 L.Ed.2d 522 (1968) (filing a fake will in probate court constitutes contempt).

       {¶ 17} We agree. Mr. Polete’s actions served to undermine the integrity of the

judicial system and demonstrated a lack of respect for the authority and dignity of the

courts. Thus, we conclude that his actions were properly considered in the nature of

contempt.

       {¶ 18} We now turn to Mr. Polete's claim that there was insufficient evidence to

support his conviction for contempt, and note that his argument also implicitly raises the

claim that the contempt finding was against the manifest weight of the evidence. When

reviewing the sufficiency of evidence, the relevant inquiry is whether any rational finder

of fact, viewing the evidence in a light most favorable to the state, could have found the

essential elements of the crime proven beyond a reasonable doubt. State v. Daly, 2d

Dist. Clark No. 2007 CA 26, 2007-Ohio-5170, ¶ 48, citing State v. Dennis, 79 Ohio St.3d

421, 683 N.E.2d 1096 (1997).

       {¶ 19} Mr. Polete argues that because he completed the form in Cross’s presence
                                                                                            -9-


without attempting to hide the signature, no reasonable person could find that he

intentionally forged the document or attempted to impede the administration of justice.

He further argues that he reasonably believed that he had Holm’s implied permission to

sign the form because she had just signed one identical thereto.

       {¶ 20} Cross testified that she did not notice the signature until after Mr. Polete had

handed her the completed application. Specifically, she testified that she was in the

process of taking the application to the judge’s chambers when she first noticed the

signature and realized that only Mr. Polete had been present during the completion of the

form. Further, the record demonstrates that the application did not require an attorney’s

signature. Thus, Cross would have had no reason to know that Mr. Polete was furnishing

one. Given that Mr. Polete’s first application for guardianship was completed prior to him

obtaining an attorney, and that he was the only person to sign the first application, it can

be inferred that he was aware that an attorney’s signature was not needed and that he

was aware that Cross would have no reason to think he was signing another’s name to

the form. Mr. Polete did not inform Cross that he had signed Holm’s name or that he

had permission to do so. Significantly, as noted by the magistrate, a review of the

signature on the application supports a finding that Mr. Polete tried to mimic Holm’s

signature from the other application, an action that would have been unnecessary had he

actually believed he had her permission to sign her name. The probate court, as the trier

of fact, was free to discredit Mr. Polete’s claim that he believed he had Holm’s implied

permission. Further, the court was within its rights to give little weight to the fact that Mr.

Polete was in Cross’s presence at the time he committed the forgery.

       {¶ 21} We conclude that there was sufficient evidence in the record to support a
                                                                                         -10-


finding of contempt. The first assignment of error is overruled.




                     IV. No Necessity of Probable Cause Affidavit

       {¶ 22} The second assignment of error asserted by Mr. Polete states;

       THE TRIAL COURT ERRED IN CONCLUDING THAT THE COURT HAD

       PROBABLE CAUSE TO INITIATE INDIRECT CRIMINAL CONTEMPT

       PROCEEDINGS.

       {¶ 23} In this assignment of error, Mr. Polete contends that the finding of contempt

must be set aside because the order to show cause was not supported by an affidavit or

other sworn document providing probable cause to charge him with contempt.                In

support, he cites Springfield City Bd. of Edn. v. Ohio Assn. of Public School Emps., 2d

Dist. Clark No. 1187, 1978 WL 216137 (May 26, 1978) for the proposition that a court

cannot issue an order to show cause alleging indirect criminal contempt absent the filing

of an affidavit showing probable cause.

       {¶ 24} The Springfield case is not applicable to the facts herein. In that case, the

court addressed the necessity of an affidavit only in the context of a contempt action filed

under R.C. 2727.12 for disobedience of an injunction or restraining order. Id. at *2.

Further, the opinion simply does not state that an affidavit establishing probable cause

must be filed before the court may issue a show cause order in a contempt action arising

under any other statute or common law.

       {¶ 25} As an aside, we note that Mr. Polete contends that the probate court erred

in finding that his contempt arose under the provisions or R.C. 2705.02. In support he
                                                                                           -11-


correctly argues that none of the acts listed in that statute are applicable to the facts of

his case. However, R.C. 2705.02, which enumerates certain acts constituting indirect

contempt, “is not exclusive and does not place any limitation on the court's power to

extend and expand the legislative rule to other acts of either a similar or a dissimilar

nature.” 17 Ohio Jurisprudence 3d, Contempt, Section 17 (2018).

        {¶ 26} We conclude that Mr. Polete’s arguments in this assignment of error lack

merit. Accordingly, the second assignment of error is overruled.



                                  V. No Right to a Jury Trial

        {¶ 27} Mr. Polete’s third assignment of error provides as follows:

        THE TRIAL COURT ERRED IN CONCLUDING THAT A JURY TRIAL IS

        NOT REQUIRED FOR DUE PROCESS IN A CHARGE OF INDIRECT

        CRIMINAL CONTEMPT.

        {¶ 28} Mr. Polete contends that, because a court may impose a prison term of

more than six months in a contempt proceeding, a person accused of criminal contempt

is entitled to a trial by jury.

        {¶ 29} Furthermore, in City of Cincinnati v. Cincinnati Dist. Council 51, Am. Fedn.

of State, Cty. and Mun. Emps., AFL-CIO, 35 Ohio St.2d 197, 202, 299 N.E.2d 686 (1973),

the Ohio Supreme Court held that there is no right to trial by jury in contempt proceedings,

except perhaps where lengthy jail sentences are likely. Likewise, the Supreme Court of

the United States has held that the constitutional guarantee of a right to a jury trial extends

to “serious” criminal contempts. Bloom, 391 U.S. 194, 211, 88 S.Ct. 1477, 20 L.Ed.2d

522. In Bloom, the court specifically noted that the contemnor was sentenced to a prison
                                                                                        -12-

term of two years.4 Id. In Mr. Polete’s case, there is no indication that the trial court

considered imposing a jail sentence, much less a lengthy one. Therefore, we cannot

conclude that he had a right to a jury trial in the contempt proceedings.

       {¶ 30} We find this argument lacks merit.       The third assignment of error is

overruled.



                      VI. Burden of Proof Not Improperly Shifted

       {¶ 31} The fourth assignment of error states as follows:

       THE TRIAL COURT ERRED BY IMPROPERLY SHIFTING THE BURDEN

       OF PROOF TO SEAN POLETE.

       {¶ 32} In this assignment of error, Mr. Polete claims that the finding of contempt

must be overturned because the magistrate incorrectly placed the burden of proof upon

him. In support, he notes that the magistrate stated that he had “the burden to establish

a valid excuse for the noncompliance,” and that he “failed to produce facts to support a

good faith excuse for his actions.” Magistrate’s Decision, Dkt. No. 127. He cites Arthur

Young & Co. v. Kelly, 68 Ohio App.3d 287, 588 N.E.2d 233 (10th Dist.1990) for the

proposition that, in a criminal contempt case, the burden of proof cannot be shifted to the

contemnor.

       {¶ 33} Mr. Polete is correct that the court in Arthur Young did state that “[t]he

burden of proof cannot shift to the defendant if the proceeding is criminal in nature.” Id.

at 300. However, the court went on to state that “an alleged contemnor bears the burden


4
  As an aside, we note that the Bloom decision appears to be limited to cases in which
the contemnor has made a demand for a jury trial. Id. at 198. Mr. Polete did not request
a jury trial.
                                                                                        -13-


of going forward and the burden of proof with respect to affirmative defenses such as

inability to comply with the order. Placing the burden of proving an affirmative defense

on a defendant in a criminal proceeding does not violate due process.” Id. at 300-301,

citing Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1986). Mr. Polete,

though, claims that he did not assert an affirmative defense, and thus, there was no need

to shift any burden of proof.

       {¶ 34} A review of the magistrate’s decision clearly demonstrates that, after

hearing the witnesses and reviewing the evidence, the magistrate found that Mr. Polete

intentionally signed Holm’s name, and that he attempted to mimic her signature, without

Holm’s permission. The magistrate further found that Polete intentionally presented the

application to the clerk, knowing it contained a forged signature, in an attempt to have it

filed in the guardianship action. The magistrate further found that Mr. Polete’s actions

constituted an attempted fraud on the court.      Based upon these findings alone, the

magistrate concluded that Mr. Polete was guilty of criminal contempt of court.

       {¶ 35} The magistrate’s decision then went on to correctly note that, upon a finding

of contempt, an alleged contemnor has the burden to establish a valid excuse for his

actions, and that Mr. Polete failed to do so. Specifically, Mr. Polete’s argument with

regard to the contempt charges was that he did not have the intent to defraud the court,

because he believed he had implied permission to sign Holm’s name. However, the

magistrate found these arguments lacked credibility.

       {¶ 36} We conclude that Mr. Polete’s argument misapprehends the magistrate’s

decision. We also conclude that the magistrate did not inappropriately shift the burden

of proof. Thus, the probate court did not abuse its discretion in concluding that this
                                                                                        -14-


argument lacked merit. Accordingly, the fourth assignment of error is overruled.



                         VII. Indirect Contempt Classification

      {¶ 37} Mr. Polete states the following for his fifth assignment of error:

      THE TRIAL COURT ERRED BY IMPROPERLY CHARGING SEAN

      POLETE WITH INDIRECT CRIMINAL CONTEMPT INSTEAD OF DIRECT

      CRIMINAL CONTEMPT.

      {¶ 38} Mr. Polete contends that the contempt finding should be reversed because

indirect criminal contempt requires that the behavior occur outside the court’s presence.

In support, he cites Fidelity Fin. Co., 102 Ohio App. 497, 501, 126 N.E.2d 812, for the

holding that “[t]he word ‘court’ in the field of law is a comprehensive term. It represents

the judicial department of government which operates by the method of establishing a

tribunal composed of one or more judges attended by proper officers and employees for

the public administration of justice. The judge does not constitute the court. The court,

in addition to the judge or judges, is composed of the jury, clerks, bailiffs and other

attaches, together with the court room and other rooms and halls used for the

conductance of the business of the court. When any part of the court is engaged in the

prosecution of the business of the court, in accordance with law, the court is there

present.” Id. at 501. Thus, Mr. Polete contends that the finding of contempt must fail

because his actions occurred in the presence of the court as defined by Fidelity, and

because he was thus charged with the incorrect type of contempt.

      {¶ 39} We conclude that this argument lacks merit.           Whether the contempt

occurred directly or indirectly constitutes a classification of the type of contempt rather
                                                                                        -15-


than an element of the offense. As previously noted, in a direct contempt, a trial court

may summarily punish the contemnor without the necessity of providing notice or a

hearing on the matter because the court has observed the behavior.           With indirect

contempt, which the court has not personally observed, the contemnor is entitled to a

certain level of due process. The sole purpose of the direct/indirect classification is to

determine where the conduct occurs, and thus, the level of due process to which an

alleged contemnor is entitled. Preston v. Shutway, 2013-Ohio-185, 986 N.E.2d 584, ¶

31, 34 (2d Dist.2013).

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



                                     VIII. Conclusion

       {¶ 41} All of Mr. Polete’s assignments of error being overruled, the judgment of the

probate court is affirmed.



                                     .............


DONOVAN, J., concurs in judgment only.

FROELICH, J., concurs.



Copies sent to:

Robert H. Lyons
Justine Z. Larsen
Jeremy Williams
Hon. Alice O. McCollum
