[Cite as Freihofner v. Freihofner, 2020-Ohio-1409.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JENNIFER S. FREIHOFNER                            :   JUDGES:
                                                  :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                        :   Hon. Patricia A. Delaney, J.
                                                  :   Hon. Earle E. Wise, Jr., J.
-vs-                                              :
                                                  :
ANTON FREIHOFNER                                  :   Case No. 19 CAF 06 0038
                                                  :
        Defendant-Appellant                       :   OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 17DRA030147




JUDGMENT:                                             Judgment Vacated and Remanded




DATE OF JUDGMENT:                                     April 10, 2020




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

KENNETH J. MOLNAR                                     LOUIS H. HERZOG
21 Middle Street                                      43 East Central Avenue
Galena, OH 43021                                      Delaware, OH 43015
Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Anton Freihofner, appeals the May 10, 2019

judgment entry of the Court of Common Pleas of Delaware County, Ohio finding him in

contempt. Plaintiff-Appellee is Jennifer S. Freihofner.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On March 10, 2017, appellee filed a complaint for divorce. A final hearing

was completed on November 29, 2018. The parties were given until December 21, 2018

to file closing arguments.

       {¶ 3} On January 14, 2019, prior to a final decision being issued, appellee filed a

motion for contempt, alleging appellant failed to pay the child care provider as ordered,

and permitted contact between the children and his attorney contrary to a prior order. A

hearing was scheduled for February 13, 2019; however, the hearing was conducted as a

management conference with counsel. According to appellant's statement of the case

and of the facts in his appellate brief, the trial court was to consider the amount due and

owing the child care provider and incorporate that amount into the final decision without

reaching a decision on the contempt. By judgment entry filed May 10, 2019, the trial court

found appellant in contempt for failure to pay his portion of the child care expense. The

trial court sentenced appellant to ten days in jail with the ability to purge the contempt

upon paying the outstanding amount and appellee's attorney fees.

       {¶ 4} On June 5, 2019, appellant filed a motion to reconsider, arguing a hearing

was never held on the contempt motion per the agreement to include any monies due

and owing in the final decision. This motion was not ruled upon.

       {¶ 5} On June 10, 2019, appellant filed a notice of appeal of the May 10, 2019

contempt finding. Because a transcript of the February 13, 2019 hearing was unavailable,
appellant filed a statement of evidence on August 28, 2019. This matter is now before

this court for consideration. Assignments of error are as follows:

                                             I

      {¶ 6} "THE TRIAL [COURT] ABUSED ITS DISCRETION AND PREJUDICED

THE RIGHTS OF THE APPELLANT BY ISSUING A FINDING OF CONTEMPT

WITHOUT HOLDING A HEARING OR TAKING EVIDENCE AS SPECIFICALLY

REQUESTED BY APPELLANT AND AS REQUIRED BY R.C. 2705.05(A)."

                                             II

      {¶ 7} "THE COURT COMMITTED PREJUDICIAL AND PLAIN ERROR AND

VIOLATED APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE AND

EQUAL     PROTECTION        CLAUSE      OF        THE   UNITED   STATES     AND     OHIO

CONSTITUTIONS BY ORDERING A FINDING OF CONTEMPT WITHOUT HOLDING A

HEARING."

                                             I

      {¶ 8} In his first assignment of error, appellant claims the trial court abused its

discretion in failing to hold a hearing before finding him in contempt. We agree.

      {¶ 9} At the outset, we note a transcript of the February 13, 2019

hearing/management conference does not exist. See Certification of No Audio Transcript

(02/13/2019) filed August 29, 2019. Therefore, appellant filed a statement of evidence

with this court on August 28, 2019. The statement of evidence was served on appellee

and appellee did not file any objections or proposed amendments; however, appellant did

not submit the statement of evidence to the trial court for settlement and approval.

Therefore, we find appellant's statement of evidence does not comport with App.R. 9(C).
       {¶ 10} Appellee did not file an appellate brief. Pursuant to App.R. 18(C), "in

determining the appeal, the court may accept the appellant's statement of the facts and

issues as correct and reverse the judgment if appellant's brief reasonably appears to

sustain such action."

       {¶ 11} On January 14, 2019, appellee filed a motion for contempt against

appellant, alleging events that occurred after the final hearing. By judgment entry filed

January 18, 2019, the trial court set a hearing on the motion for February 13, 2019. By

judgment entry filed May 10, 2019, the trial court found appellant in contempt and

sentenced him to ten days in jail with the ability to purge the contempt upon paying the

outstanding amount ($370.00), appellee's attorney fees ($750.00), and the costs

associated with the motion. The trial court noted the scheduled hearing "was instead

conducted as a management conference with counsel." The August 29, 2019 certification

of no audio transcript indicates the contempt hearing went forth as a "Non-Oral

Hearing/Case Management Conference with Counsel."

       {¶ 12} In his statement of the case and of the facts at 4-5, appellant states the

following:



              Undersigned counsel did specifically clarify that there was no

       agreement for any finding as to any specific violation of a court order in the

       nature of contempt. Undersigned counsel further indicated an ability and

       preparedness to go forward on the issue of contempt. However, the trial

       court and counsel for Appellee agreed that the economics of the issue, as

       minor as it was (less than $400), was such that trial expenses to resolve the

       contempt issue was imprudent at that time since a full decision was
       imminent.   Accordingly, the hearing was converted to a "management

       conference."

              At that moment, undersigned Counsel further apprised the trial Court

       that no contempt order would be issued without an actual hearing * * *.

       Accordingly, the Trial Court advised that it would not address the specific

       issue of Contempt, and would roll the other issues into the larger decision

       to be issued on the trial completed in 2018.



       {¶ 13} R.C. 2705.05(A) states in part: "In all contempt proceedings, the court shall

conduct a hearing. At the hearing, the court shall investigate the charge and hear any

answer or testimony that the accused makes or offers and shall determine whether the

accused is guilty of the contempt charge."

       {¶ 14} We find the state of the record and appellant's brief reasonably appear to

support appellant's argument. A hearing on the contempt motion was not held.

       {¶ 15} Upon review, we find the trial court abused its discretion in finding appellant

in contempt without holding a hearing.

       {¶ 16} Assignment of Error I is granted.

                                             II

       {¶ 17} Based upon our decision in Assignment of Error I, this assignment of error

is moot.

       {¶ 18} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby vacated, and the matter is remanded to said court to follow the agreement reached

during the management conference or hold a hearing on the contempt motion as

requested by appellant in his appellate brief at 8.
By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.




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