[Cite as Jerkey v. Croxton, 2011-Ohio-688.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



DANA YERKEY                                       JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2010 CA 00103
BEAU CROXTON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Domestic Relations Division, Case
                                              No. 2007DR01339


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        February 14, 2011



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JEFFREY JAKMIDES                              DOUGLAS C. BOND
325 East Main Street                          MORELLO & BOND
Alliance, Ohio 44601                          700 Courtyard Centre
                                              116 Cleveland Avenue NW
                                              Canton, Ohio 44702
Stark County, Case No. 2010 CA 00103                                                        2

Wise, J.

          {¶1}    Appellant Beau Croxton appeals the decision of the Stark County Court of

    Common Pleas, Domestic Relations Division, which denied his request for modification

    of his child support obligation. Appellee Dana Yerkey is appellant’s former spouse and

    the child support obligee. The relevant facts leading to this appeal are as follows.

          {¶2}    Appellant and appellee were married in May 2007. One child has been

    born of the parties. Appellee filed a complaint for divorce on November 2, 2007. The

    trial court issued a final divorce decree on April 15, 2008. Among other things,

    appellant was ordered to pay child support of $500.00 per month.1

          {¶3}    On April 8, 2009, appellant filed a motion to modify child support, alleging

    that his income had recently decreased. On the same day, appellant filed a motion to

    show cause, alleging he was not being afforded his companionship rights with the

    child. Both issues proceeded to an evidentiary hearing on October 15, 2009. The

    magistrate took the matter under advisement, and then issued a written decision on

    November 12, 2009, denying appellant’s motion to modify child support and motion to

    show cause.

          {¶4}    Appellant thereupon filed an objection to the magistrate’s decision.

          {¶5}    On February 24, 2010, the trial court conducted a hearing on appellant’s

    objection under Civ.R. 53. On April 6, 2010, the trial court issued a judgment entry

    approving the decision of the magistrate.



1
   In our review of the trial court file, we note a proposed worksheet filed with appellee’s
original divorce complaint that initially asserted a guideline figure of $665.46 per month.
We have been unable to locate a financial affidavit from appellant in connection with his
answer to the divorce complaint, which should have set forth his asserted annual
income at the time.
Stark County, Case No. 2010 CA 00103                                                    3


      {¶6}   On May 5, 2010, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

      {¶7}   “I. IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL

COURT TO OVERRULE DEFENDANT/APPELLANT’S MOTION FOR MODIFICATION

OF CHILD SUPPORT AND REFUSE TO CONSIDER THE ONLY EVIDENCE

BEFORE THE COURT THAT A CHANGE OF CIRCUMSTANCES HAD OCCURRED.

      {¶8}   “II. IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL

COURT TO FAIL TO FIND PLAINTIFF/APPELLEE IN CONTEMPT OF THE COURT’S

PRIOR ORDER WHEN APPELLEE ADMITTED TO THE VIOLATION.”

                                            I.

      {¶9}   In his First Assignment of Error, appellant contends the trial court erred in

declining to modify his child support obligation. We disagree.

      {¶10} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio

Supreme Court determined that the abuse-of-discretion standard is the appropriate

standard of review in matters concerning child support. In order to find an abuse of

discretion, we must determine that the trial court's decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

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

appellate court, we are not the trier of fact. Our role is to determine whether there is

relevant, competent, and credible evidence upon which the factfinder could base his or

her judgment. Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-

Ohio-3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-

5758, 1982 WL 2911.
Stark County, Case No. 2010 CA 00103                                                        4

      {¶11} In DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 538, 679 N.E.2d 266,

the Ohio Supreme Court held that in a case where a support order already exists, the

test for determining whether child support shall be modified is the 10 percent threshold

set forth in R.C. 3113.215(B)(4) (now R.C. 3119.79).

      {¶12} In the case sub judice, the magistrate, after hearing the firsthand

testimony of appellant and appellee, “[did] not find either party to be credible as

witnesses.” Magistrate’s Decision at 2, paragraph 17, emphasis in original. Appellant

testified that he had recently started working for $7.35 an hour for Croxton Realty, an

entity affiliated with his parents, doing “maintenance [and] just various different things”.

Magistrate Hrg. Tr. at 14. Although appellant had brought forward the issue of

modification, he failed to produce any 2006, 2007, or 2008 tax returns for the hearing,

and he testified that he had forgotten to list several business interests on the financial

affidavit he filed with the motion to modify at issue. He also asserted that he was in

debt to his parents for “[h]undreds of thousands.” Tr. at 46. In turn, appellee testified

that she works as a bartender, but was unclear as to her annual cash tip income. See

Tr. at 69, 83.

      {¶13} Appellant chiefly contends that the trial court improperly rejected his

Croxton Realty pay stub, as it was “not subject to a test of credibility.” Appellant’s Brief

at 9. However, we are not persuaded that a finder of fact is bound to accept a pay stub

document as proof of total income when it has concluded within its discretion that a

child support obligor is not being forthright in toto as to his true financial situation. Upon

review, we find no abuse of discretion in this instance in the trial court finding no

demonstration of a change in circumstances warranting a modification of child support.
Stark County, Case No. 2010 CA 00103                                                     5


      {¶14} Appellant's First Assignment of Error is therefore overruled.

                                            II

      {¶15} In his Second Assignment of Error, appellant contends the trial court erred

in failing to find appellee in contempt of court. We disagree.

      {¶16} Contempt has been defined as the disregard for judicial authority. State v.

Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “It is conduct which brings the

administration of justice into disrespect, or which tends to embarrass, impede or

obstruct a court in the performance of its functions.” Windham Bank v. Tomaszczyk

(1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus. Our standard

of review regarding a finding of contempt is limited to a determination of whether the

trial court abused its discretion. Wadian v. Wadian, Stark App.No. 2007CA00125,

2008-Ohio-5009, ¶ 12, citing In re: Mittas (Aug. 6, 1994), Stark App.No. 1994 CA

00053.

      {¶17} Interference with visitation is typically redressed in family courts via civil

contempt. See, e.g., Montgomery v. Montgomery, Scioto App.Nos. 03CA2923,

03CA2925, 2004-Ohio-6926, ¶ 13, citing Mascorro v. Mascorro (Jun. 9, 2000),

Montgomery App. No. 17945. “A finding of civil contempt does not require proof of

purposeful, willing, or intentional violation of a trial court's prior order.” Townsend v.

Townsend, Lawrence App. No. 08CA9, 2008-Ohio-6701, ¶ 27, citing Pugh v. Pugh

(1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085.

      {¶18} In the case sub judice, the magistrate found that law enforcement officers

had to be contacted on at least one occasion because of appellee’s “alleged failure” to

make the parties’ child available for visitation. Magistrate’s Decision at 2, paragraph 15.
Stark County, Case No. 2010 CA 00103                                                      6


This relates to appellee’s admission at the hearing that she had left the child with her

mother one evening (rather than with appellant) while she worked at her bartending

job. See Tr. at 81. The magistrate also found that appellee had moved in with her

boyfriend and “allegedly did not inform [appellant] of where she and the child were

living.” Magistrate’s Decision at 2, paragraph 16.

      {¶19} The magistrate’s decision, which was approved by the trial court, was

based on her conclusion that there was no showing of “intentional denial” of visitation

time by appellee. Magistrate’s Decision at 5. Pursuant to Townsend and Pugh, supra,

the magistrate arguably overemphasized the aspect of intentionality. Nonetheless,

given the court’s credibility assessments of the parties and the limited instances of

visitation interference brought out in the record, we hold the trial court could have

properly found, within its discretion, that appellee’s actions had not risen to the level of

disrespect, embarrassment, or obstruction toward the court’s functioning so as to

warrant a contempt finding. Windham Bank, supra.

      {¶20} Appellant's Second Assignment of Error is therefore overruled.

      {¶21} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Stark County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.

                                             ___________________________________

                                             ___________________________________

                                             ___________________________________

                                                                  JUDGES
JWW/d 0201
Stark County, Case No. 2010 CA 00103                                           7


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




DANA YERKEY                             :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
BEAU CROXTON                            :
                                        :
       Defendant-Appellant              :        Case No. 2010 CA 00103




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Stark County,

Ohio, is affirmed.

       Costs assessed to appellant.




                                        ___________________________________


                                        ___________________________________


                                        ___________________________________

                                                          JUDGES
