[Cite as Pendergraft v. Watts, 2011-Ohio-5649.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 93808


                       SANDRA L. PENDERGRAFT
                                                        PLAINTIFF

       [APPEAL BY STATE OF OHIO, CUYAHOGA
         SUPPORT ENFORCEMENT AGENCY]
                                                        APPELLANT

                                                  vs.

                       MICHAEL WILLIAM WATTS
                                                        DEFENDANT-APPELLEE



                               JUDGMENT:
                         REVERSED AND REMANDED

                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                              Domestic Relations Division
                                   Case No. D-282266

        BEFORE:           Rocco, J., S. Gallagher, P.J., and Blackmon, J.
                                2


     RELEASED AND JOURNALIZED:        November 3, 2011



                                -i-

ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Kestra Smith
Assistant County Prosecutor
C.S.E.A.
P.O. Box 93923
Cleveland, Ohio 44113

BY: Lawrence Rafalski
       Joseph C. Young
Assistant County Prosecutors
C.S.E.A.
P.O. Box 93894
Cleveland, Ohio 44101

BY: Mark R. Marshall
Assistant County Prosecutor
C.S.E.A.
P.O. Box 451146
Westlake, Ohio 44145

FOR APPELLEE

Michael William Watts, Pro Se
643 West Hopocan Avenue
Barberton, Ohio 44203
                                          3




KENNETH A. ROCCO, J.:

      {¶ 1} The state of Ohio, Cuyahoga Support Enforcement Agency

(“CSEA”), appeals from an order of the domestic relations division of the

common pleas court (“the DR court”) that partially granted CSEA’s motion to

show cause, and determined the arrearage due on a previous child support

order. The DR court found that the obligor, defendant-appellee Michael

William Watts, was in arrears in the amount of $5,060.74 and ordered him to

continue to make support payments of $60 per month as well as $40 per

month payments on the arrearage.

      {¶ 2} In CSEA’s original appeal from the foregoing order, relying on

Pula v. Pula-Branch, Cuyahoga App. No. 93460, 2010-Ohio-912, (authored by

Christine T. McMonagle, P.J.), this court held that the DR court lacks subject

matter jurisdiction over a UIFSA 1 petition, and therefore vacated the DR

court’s   order.       Pendergraft   v.   Watts,   Cuyahoga    App.    No.   93808,

2010-Ohio-3196 (“Pendergraft I”).         CSEA appealed this court’s decision in

Pendergraft I to the Ohio Supreme Court. On the authority of its decision in

Pula v. Pula-Branch, 129 Ohio St.3d 196, 2011-Ohio-2896, 951 N.E.2d 72, the


      1Uniform     Interstate Family Support Act. R.C. Chapter 3115.
                                     4

supreme court reversed this court’s decision in Pendergraft I and remanded

for consideration of the merits of CSEA’s appeal.

      {¶ 3} CSEA asserts in seven assignments of error that the DR court

abused its discretion when it adopted the magistrate’s decision, because the

magistrate acted improperly, both in failing to find Watts in contempt of court

and in finding him in substantial compliance with the support order. This

court agrees. Consequently, the DR court’s order is reversed, and this case is

remanded for further proceedings.

      {¶ 4} The underlying facts of this case were set forth in Pendergraft I,

at ¶2-6 as follows.

      {¶ 5} “Sandra L. Pendergraft petitioned the domestic relations division

of the common pleas court in September 2001 to register a North Carolina

child support order for enforcement. The voluntary support order attached

to the petition obligated Watts to pay $60 per month for the support of his

child; the petition indicated that $1,142 was past due pursuant to this order.

Watts did not object to the registration. On December 26, 2001, the domestic

relations court registered the North Carolina order and ordered Watts to pay

current support of $60 per month plus $40 per month toward the arrearage.

      {¶ 6} “In September 2005, CSEA filed a motion to show cause why

Watts should not be held in contempt for failure to comply with the support
                                    5

order. Watts failed to appear for the magistrate’s hearing on the motion.

The magistrate concluded, based upon an affidavit of arrears submitted by

North Carolina, that the arrearage due on the support order was $5,379.94 as

of November 9, 2005, and found Watts in contempt for failing to pay support

as ordered.   No objections to the magistrate’s report were filed.       The

domestic relations court adopted the magistrate’s recommendation and

sentenced Watts to 30 days in jail or, in the alternative, not less than 200

hours of community service, but gave him the opportunity to purge his

contempt by paying $500 within 30 days. The court further ordered Watts to

seek employment. After Watts failed to purge his contempt, the court issued a

capias for his arrest. One year later, Watts had not been apprehended and

the court dismissed the capias.

      {¶ 7} “In March 2009, CSEA filed another motion to show cause why

Watts should not be held in contempt for failing to pay support.         The

magistrate conducted a hearing on this motion on May 28, 2009, at which

Watts again failed to appear. CSEA submitted three exhibits to the court,

[viz.,] a payment receipt calculation, a payment record, and a certified

statement of arrears from North Carolina; the magistrate found these

exhibits to be true. The magistrate concluded that the arrearage reported by

North Carolina was less than the arrearage found in the domestic relations
                                      6

court’s 2005 order. The magistrate construed this fact to mean that Watts

had paid all current support due since the prior order. * * * [T]hese payments

were not made through CSEA, they were paid through North Carolina, so the

magistrate concluded that Watts was in substantial compliance with the

support order.   Therefore, the magistrate recommended that the domestic

relations court issue an order finding Watts in arrears in the amount of

$5,060.74 as of April 30, 2009, and order him to continue paying current

support of $60 per month plus $40 per month toward the arrearage.”

      {¶ 8} The magistrate thus decided CSEA’s motion to show cause was

“granted in part as to the arrearage amount,” but issued no contempt citation

against Watts.     No transcript was made of this hearing before the

magistrate.

      {¶ 9} CSEA filed objections to the magistrate’s report.   In support of

the objections, Lawrence Rafalski, the assistant county prosecutor assigned to

the case to represent CSEA, and who had been present at the hearing before

the magistrate, submitted his affidavit.

      {¶ 10} Rafalski averred that he provided to the magistrate, as the first

page of his exhibits, a document entitled, “Statement of fact for show-cause

[hearing] against Michael Watts, D-282266/UIFSA.” Rafalski averred that

the magistrate failed to attach this page to her decision, but the page had
                                      7

been filed; thus, it could be found in the court’s file. In pertinent part, this

page noted Watts had “paid nothing through CSEA as of April 30, 2009; and,

therefore, has violated * * * the Court’s last order to pay support.”

      {¶ 11} The DR court subsequently overruled CSEA’s objections and

adopted the magistrate’s decision. The DR court granted CSEA’s motion to

show cause “in part,” found Watts to be in arrears in the amount of $5,060.74

as of April 30, 2009, and ordered him to “continue” to pay current support

plus $40 per month toward the arrearage, or be held in “contempt of Court,

punishable by a fine and/or jail sentence.”

      {¶ 12} CSEA presents the following seven assignments of error for this

court’s review.

      {¶ 13} “I.    The trial court abused its discretion in refusing to

find Obligor in contempt of court for failure to comply with its order

to pay child support where the evidence shows Obligor failed to

comply with the court’s order for forty consecutive months, the court

made a specific finding that ‘the evidence shows Obligor made no

payments through CSEA...’, and, the Obligor did not even appear at

the hearing to offer any defense to the contempt charge.

      {¶ 14} “II.   As the finding of a ‘motion to show cause’ places the

burden on the Obligor cited for contempt to offer a defense to the
                                   8

charge of contempt, and as the Obligor herein failed to appear for

hearing on the motion, it was improper for the magistrate to have

‘constructed’ a defense for the benefit of the Obligor in his absence.

It was an abuse of discretion for the trial court to adopt the

magistrate’s decision, because the actions of the magistrate in

producing a defense on behalf of the Obligor may be seen as the

magistrate’s relinquishing of its [sic] responsibilities as a neutral

jurist, to become an advocate for the interests of the Obligor.

     {¶ 15} “III.   When the Obligor failed to attend a child-support

contempt hearing, the trial court abused its discretion in refusing to

find Obligor in contempt of court for failure to comply with the order

to pay child support, where the court’s order results from the

registration of an out-of-state support order for enforcement

purposes under Chapter 3115 of the Ohio Revised Code, and, the

court specifically finds the Obligor has not obeyed the Ohio order,

but, the statement of net arrears furnished by the originating

jurisdiction shows a reduction in the amount of net arrears since the

previous contempt finding, without disclosing the means by which

the originating jurisdiction obtained the monies applied to the

arrearage.
                                  9

     {¶ 16} “IV.   When the Obligor failed to attend a child-support

contempt hearing, the trial court abused its discretion in refusing to

find Obligor in contempt of court for failure to comply with its

registered interstate support order, and, the court made a specific

finding that the Obligor has not obeyed its order, but, that the

circumstance of a reduction in the net arrears amount since the

previous contempt finding by undisclosed assets attachment in the

originating jurisdiction is deemed to be ‘substantial compliance’ with

the trial court’s order.

     {¶ 17} “V.    Where   an   Obligor   under   a   UIFSA   interstate

registration of a support order for enforcement purposes fails to

attend his contempt hearing, and the unrefuted evidence shows that

the Obligor failed to comply with the court’s order to pay support for

forty consecutive months since the last prior contempt finding, it is

an abuse of discretion for the trial court to refuse to find Obligor in

contempt, and results in a denial of CSEA’s procedural due-process

rights, by requiring CSEA to perform the ‘vain act’ of continuing to

enforce the court’s support order in the face of the court’s refusal to

find Obligor in contempt despite a clear legal basis to do so.
                                  10

     {¶ 18} “VI.    Where an Obligor under a UIFSA interstate

registration of a support order for enforcement purposes fails to

attend his contempt hearing, and the unrefuted evidence shows that

the Obligor failed to comply with the court’s order to pay support for

forty consecutive months since the last prior contempt finding, a

contempt finding is the only result consistent with such evidence;

and, it is contrary to law for the trial court to consider any other

events occurring outside the court’s jurisdiction as consituting [sic]

‘substantial compliance’ with the order of the trial court to pay

support.

     {¶ 19} “VII.   Since the motion to show cause filed by CSEA on

March 19, 2009 sought only a finding of contempt, and not a

determination of arrears as its object, it was incorrect as a matter of

law for the court to deem its judgment that Obligor was not in

contempt of court to be a ‘partial’ grant of the motion to show cause.

A motion ‘to show cause’ is not considered ‘granted’ in the absence of

a resulting contempt finding, and, a ‘determination of arrears,’ by

itself, is not to be deemed a ‘partial’ finding of contempt.”

     {¶ 20} CSEA argues that the DR court abused its discretion in adopting

the magistrate’s report and recommendation, because the magistrate made
                                      11

several errors of law.2 CSEA asserts that since the evidence the magistrate

“found to be true” demonstrated Watts had not complied with the DR court’s

2005 order, the magistrate went beyond her prerogative in finding Watts was

in “substantial compliance” with that order. This court agrees.

      {¶ 21} Civ.R. 53(D)(4)(d) provides in pertinent part that if “objections to

a magistrate’s decision are timely filed, the court shall rule on those

objections. In ruling on objections, the court shall undertake an independent

review as to the objected matters to ascertain that the magistrate has

properly determined the factual issues and appropriately applied the law.”

(Emphasis added.)

      {¶ 22} Contempt is defined as a disregard or disobedience of an order or

command of judicial authority. State v. Flinn (1982), 7 Ohio App.3d 294, 455

N.E.2d 691.     With respect to a trial court’s decision on a motion to show

cause why a party should not be held in contempt, an appellate court cannot

reverse unless the trial court abused its discretion. State ex rel. Ventrone v.

Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249. An abuse of discretion

consists of more than an error of judgment; it connotes an attitude on the part

of the trial court that is unreasonable, unconscionable, or arbitrary. Rock v.


      2CSEA’s  appellate brief complies only minimally with the requirements of
App.R. 16(A)(7); therefore, pursuant to App.R. 12(A)(2), this court will consider
CSEA’s arguments generally.
                                      12

Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218. That standard is met in

this case.

      {¶ 23} In Strauss v. Strauss, Cuyahoga App. No. 94129, 2010-Ohio-6166,

¶9, this court recently noted as follows:

      {¶ 24} “A court may find the offending party in contempt for * * *

indirect actions that constitute disobedience to an order. Pirtle v. Pirtle, 2nd

Dist. No. 18613, 2001-Ohio-1539. * * * [I]ndirect contempt is ‘misbehavior

that occurs outside the actual or constructive presence of the court.’         Id.

One accused of indirect contempt is entitled to a ‘hearing on the charge, at

which the court must investigate the charge, hear any answer or testimony

that the accused makes or offers, and then determine whether the accused is

guilty.’ Id.” (Emphasis added.)

      {¶ 25} If the moving party establishes by clear and convincing evidence

that a valid court order existed, that the person had knowledge of the order,

and that the person violated the order, the trial court should make a

contempt finding so that the orderly administration of justice may proceed.

Hueber v. Hueber, Clermont App. Nos. CA2006-01-004, CA2006-02-019,

CA2006-02-020, 2007-Ohio-913.        “Clear and convincing evidence is that

which will produce in the mind of the trier of fact a firm belief or conviction as

to the facts sought to be established.” Id. at ¶16.
                                      13

      {¶ 26} The movant need not prove that the contemnor’s violation was

either purposeful, willing, or intentional. Pugh v. Pugh (1984), 15 Ohio St.3d

136, 472 N.E.2d 1085. Indeed, “it is irrelevant that the transgressing party

does not intend to violate the court order. If the dictates of the judicial decree

are not followed, a contempt violation will result.” Id. at 140, 472 N.E.2d

1085. (Emphasis added.) Once the movant establishes a prima facie case of

contempt, the burden then shifts to the contemnor to prove his inability to

comply with the court order. Keeley v. Keeley (July 21, 1997), Clermont App.

No. CA97-02-013.

      {¶ 27} “[If] contempt proceedings are invoked solely by the person

aggrieved by disobedience of the court’s order, a refusal to punish for

contempt is largely within the discretion of the trial court[.]” Akin v. Akin,

Summit App. Nos. 25524 and 25543, 2011-Ohio-2765, at ¶44, quoting

Thomarios v. Thomarios, Summit App. No. 14232. Thus, if the court decides

the accused is guilty, the court may or may not further decide to impose a

sanction for the misbehavior.         However, “punishment is inherent in

contempt.” Strauss, ¶10.

      {¶ 28} In this case, CSEA’s motion to show cause why Watts should not

be held in contempt alleged that Watts failed to comply with the DR court’s

December 2005 order. The record reflects the December 2005 order required
                                    14

Watts to make monthly payments, specifically stated that “[a]ll support shall

be paid through the Ohio Support Payment Central (OCSPC),” and

specifically further stated that, “[a]ny payments not made through OCSPC

shall not be considered as payment of support.” (Emphasis added.)

     {¶ 29} Watts did not appear at the show cause hearing, so Watts did not

present any evidence in his defense. CSEA’s exhibits demonstrated Watts

made no payments of the court-ordered amounts between December 1, 2005

through May 1, 2009.

     {¶ 30} Nevertheless, despite the language of the December 2005 order,

despite declaring that the exhibits offered by CSEA at the hearing were

“found to be true,” and despite Watts’s failure to appear and to present any

evidence on his own behalf, the magistrate determined that, since the North

Carolina statement of Watts’s arrears showed a $319.20 “reduction in the

arrearage amount” from the prior order, this fact meant “that all current

support due * * * has been paid.” In the very next sentence, the magistrate

stated that “[t]he evidence shows that Obligor made no payments through

CSEA.” (Emphasis added.)

     {¶ 31} Lacking evidence demonstrating that Watts’s arrearage reduction

was made through the OCSPC, the magistrate’s determination was contrary

to the DR court’s own previous order.      The evidence demonstrated Watts
                                    15

made no payments through any Ohio agency, so the magistrate’s order to him

to “[c]ontinue to pay” his child support made little sense. Moreover, Watts’s

failure even to appear at the hearing was an additional indication of the

disregard he had for the court. Yet, the magistrate failed to take any of this

into her consideration of CSEA’s motion.

     {¶ 32} The Ohio Supreme Court has defined contempt as conduct that

either brings the administration of justice into disrespect, or that 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. An order making a finding of civil contempt

is meant to coerce the offending party to comply with the court’s orders.

Oatey v. Oatey (Feb. 6, 1997), Cuyahoga App. No. 70630.

     {¶ 33} A sanction for civil contempt allows the contemnor to purge

himself of the contempt. Tucker v. Tucker (1983), 10 Ohio App.3d 251, 461

N.E.2d 1337.    Once the contemnor complies with the court’s order, the

purpose of the contempt sanction has been achieved and the sanction is

discontinued.   Cleveland v. Ramsey (1988), 56 Ohio App.3d 108, 110, 564

N.E.2d 1089.

     {¶ 34} Since the record of this case demonstrates Watts ignored the DR

court’s previous finding of contempt, disregarded its previous order to make
                                     16

support payments through the Ohio agency, and made no effort to appear to

explain any of his actions, the magistrate improperly determined both that he

was in “substantial compliance” and that his inaction did not warrant any

sanction.   Under these circumstances, the DR court’s adoption of the

magistrate’s decision constituted an abuse of discretion.

      {¶ 35} CSEA’s assignments of error are sustained.

      {¶ 36} The DR court’s order is reversed, and this case is remanded for

further proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.



      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



______________________________
KENNETH A. ROCCO, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
