[Cite as Ganaway v. Ganaway, 2017-Ohio-1009.]



                                  IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                        WARREN COUNTY




KARYN M. GANAWAY,                               :
                                                       CASE NO. CA2016-05-039
       Plaintiff-Appellee,                      :
                                                              OPINION
                                                :              3/20/2017
   - vs -
                                                :

MICHAEL D. GANAWAY,                             :

       Defendant-Appellant.                     :



            APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                       DOMESTIC RELATIONS DIVISION
                            Case No. 01DR25721



Andrea N. Hicks, 224 Reading Road, Mason, Ohio 45040, for plaintiff-appellee

Engel & Martin, LLC, Mary K. Martin, 5181 Natorp Boulevard, Mason, Ohio 45040, for
defendant-appellant



       M. POWELL, J.

       {¶ 1} Defendant-appellant, Michael Ganaway ("Father"), appeals a decision of the

Warren County Court of Common Pleas, Domestic Relations Division, finding him in

contempt for failing to pay one-half of his daughter's college-related expenses in accordance

with the terms of a joint shared parenting plan.

       {¶ 2} The parties are the parents of two daughters, Meghan born in 1996, and
                                                                    Warren CA2016-05-039

Allyson born in 1998. The parties were divorced in 2001; parental rights and responsibilities

were allocated pursuant to a joint shared parenting plan incorporated into the divorce decree.

On November 3, 2003, with consent of the parties, the trial court modified the joint shared

parenting plan as follows:

               The parties further agree to equally divide the college expenses
               for both children, such expenses to include tuition, books, room
               and board, and transportation expense, through an
               undergraduate degree, at any post high school institution.

       {¶ 3} Twelve years later, Meghan enrolled as a freshman at the University of

Alabama for the 2015-2016 school year. On July 27, 2015, Father moved for a declaratory

judgment, seeking a judgment he was no longer required to pay one-half of Meghan's college

expenses because of his filing for bankruptcy in 2011. Father argued his bankruptcy

discharge extinguished his obligation to equally pay for the children's college expenses. The

magistrate denied Father's motion, finding that his obligation to pay for college expenses was

a support obligation and therefore not dischargeable in bankruptcy.

       {¶ 4} On August 12, 2015, plaintiff-appellee, Karyn Ganaway ("Mother"), filed a

motion for contempt against Father, alleging Father had not paid one-half of Meghan's

college expenses as required by the 2003 amended joint shared parenting plan.              In

preparation for a hearing on her motion, and anticipating Father's inability-to-pay defense,

Mother served Father's counsel with discovery requests. The requests for discovery were

ignored. Mother's counsel sought to resolve the discovery dispute informally with Father's

counsel.   Despite several emails and telephone calls, discovery responses were not

forthcoming.

       {¶ 5} On January 11, 2016, Mother filed a motion to compel discovery. Following a

telephone conference with the magistrate, Father provided partial responses to the discovery

requests. However, Father did not provide all the requested documents, failed to answer all


                                             -2-
                                                                     Warren CA2016-05-039

of the interrogatories by responding several times with "n/a," did not include a verified

signature page, and provided no explanation for his failure to comply with the discovery

requests. Father's failures further included the failure to identify the persons he anticipated

calling as witnesses at the hearing on Mother's contempt motion. Consequently, Mother filed

a second motion to compel discovery, requesting that Father be barred from asserting any

defense to her contempt motion and from introducing evidence in support of his inability-to-

pay defense.

       {¶ 6} On January 28, 2016, the magistrate issued a "Decision Regarding Discovery"

(the "discovery ruling"). Finding Mother's proposed sanction to be a drastic remedy to

Father's discovery noncompliance, the magistrate instead barred Father from introducing any

documents not provided to Mother's counsel prior to January 25, 2016 (the date of Mother's

second motion to compel), and from calling any witnesses. The magistrate also ordered

Father to pay $1,724.97 for Mother's attorney fees. Father did not challenge the magistrate's

discovery ruling. The trial court subsequently adopted the magistrate's ruling.

       {¶ 7} A hearing on Mother's contempt motion was held in February 2016. Consistent

with the magistrate's discovery ruling, Father was not allowed to call witnesses or present

documents not identified in his discovery responses prior to January 25, 2016. Mother

testified that Father owed $3,601.75 for his share of Meghan's freshman fall semester tuition

and that he had not contributed at all to Meghan's freshman spring semester tuition. Father

testified as to his annual income and monthly expenses, admitted he did not fully pay his

one-half share of Meghan's freshman college expenses, and asserted he was financially

unable to comply with the 2003 amended joint shared parenting plan.

       {¶ 8} On March 1, 2016, the magistrate issued a decision finding Father in contempt.

The magistrate found that Father failed to demonstrate he was unable to pay for Meghan's

college expenses:
                                              -3-
                                                                              Warren CA2016-05-039

                Clearly Father has not even attempted to decrease his expenses
                in order to pay for college. Father voluntarily entered into the
                agreement to pay for college back in 2003 and has done little or
                nothing to prepare himself to execute his share of the college
                expenses. Knowing that he had executed the 2003 agreement,
                Father should have been saving all along for the college
                expenses.

The magistrate further found that while Meghan was a high school senior and preparing to

attend college, Father chose instead to purchase two new Volkswagen vehicles and

contributed over $7,000 to his 401K plan.

        {¶ 9} The magistrate sentenced Father to ten days in jail. The magistrate further

provided Father the opportunity to purge the contempt charge by (1) making a $5,000 lump

sum payment to the University of Alabama toward Meghan's tuition bill before May 19, 2016,

the date scheduled for the final sentencing and purge hearing, (2) paying Mother's previously

ordered attorney fees of $1,727.94 prior to the sentencing and purge hearing, and (3)

effective May 1, 2016, contributing $1,200 a month to the University of Alabama for Meghan's

tuition until Father's one-half share of Meghan's college expenses is paid in full.1

        {¶ 10} Father filed objections to the magistrate's decision both by and through his

counsel and pro se. In response to the trial court's inquiry, Father indicated he wanted the

trial court to proceed on his pro se objections only. On April 29, 2016, the trial court

overruled Father's objections and adopted the magistrate's contempt decision. The trial court

found that

                [t]here is nothing so dire about Father's situation that makes him
                patently unable to pay for his daughter's college expenses. * * *
                [I]t is Father who needs to adjust his cost of living in order to
                provide for his daughter's college expenses. There is nothing
                unreasonable about the expenses that Father owes. Father
                agreed to this obligation in a 2003 Entry. Father had many years
                to plan and save accordingly. Nothing in the record indicates
                that any substantial changes have occurred to significantly

1. We note that with regard to the amount of Mother's attorney fees, there is an unexplained $3 discrepancy
between the magistrate's discovery ruling and her contempt decision.
                                                   -4-
                                                                      Warren CA2016-05-039

              impact Father's financial situation negatively.

       {¶ 11} Father now appeals, raising four assignments of error. The second and third

assignments of error will be addressed together.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE TRIAL COURT ERRED BY DENYING APPELLANT THE RIGHT TO CALL

WITNESSES AND PRESENT EVIDENCE.

       {¶ 14} Father challenges the magistrate's January 28, 2016 discovery ruling, arguing it

improperly denied him the opportunity to call witnesses and present evidence of his inability

to pay Meghan's college expenses at the contempt hearing.

       {¶ 15} The parties disagree over the proper characterization of the magistrate's

discovery ruling.   Mother asserts that consistent with the caption of the ruling, namely

"Magistrate's Decision Regarding Discovery," the discovery ruling was a magistrate's decision

subject to Civ.R. 53(D)(3), and that because Father never filed objections to the decision, he

is precluded from raising this issue on appeal pursuant to Civ.R. 53(D)(3)(b)(iv). By contrast,

Father asserts the discovery ruling is a magistrate's order subject to Civ.R. 53(D)(2), "and

thus, this is the proper time to appeal."

       {¶ 16} Magistrates have the authority to "enter orders without judicial approval if

necessary to regulate the proceedings and if not dispositive of a claim or defense of a party."

Civ.R. 53(D)(2)(a)(i). "Orders regulating discovery * * * clearly fall under the purview of this

rule." J&B Fleet Indus. Supply, Inc. v. Miller, 7th Dist. Mahoning No. 09 MA 173, 2011-Ohio-

3165, ¶ 30. See also Crawford v. Hawes, 2d Dist. Montgomery No. 23209, 2010-Ohio-952,

¶25; Staff Notes to the 2006 Amendments to Civ.R. 53(D). Father is therefore correct that

the magistrate's January 28, 2016 discovery ruling is a magistrate's order, notwithstanding

the caption of the ruling.

       {¶ 17} Civ.R. 53(D)(2)(b) provides in relevant part that "any party may file a motion
                                              -5-
                                                                       Warren CA2016-05-039

with the court to set aside a magistrate's order. The motion shall state the moving party's

reasons with particularity and shall be filed not later than ten days after the magistrate's order

is filed." See Spier v. Spier, 7th Dist. Mahoning No. 05 MA 26, 2006-Ohio-1289 (a party

unsatisfied with a magistrate's order may move to set the order aside). Ohio courts, including

this court, have held that if a party does not move to set aside a magistrate's order, that party

has waived a challenge to that order on appeal. Miller, 2011-Ohio-3165 at ¶ 32; Crawford,

2010-Ohio-952 at ¶ 25; Laser v. Laser, 6th Dist. Lucas No. L-12-1263, 2013-Ohio-3853, ¶ 9;

Nettle v. Nettle, 9th Dist. Summit No. 25001, 2010-Ohio-4638, ¶ 13; and In re A.S., 183 Ohio

App.3d 697, 2009-Ohio-3932, ¶ 63 (12th Dist.).

       {¶ 18} Here, Father failed to file a motion to set aside the magistrate's January 28,

2016 discovery ruling as required under Civ.R. 53(D)(2)(b), and his failure to do so results in

a forfeiture of this issue on appeal. See In re A.S. Father's first assignment of error is

overruled.

       {¶ 19} Assignment of Error No. 2:

       {¶ 20} THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS.

       {¶ 21} Assignment of Error No. 3:

       {¶ 22} THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT

APPELLANT FAILED TO PROVE HIS INABILITY TO PAY.

       {¶ 23} Father challenges the magistrate's March 1, 2016 decision finding him in

contempt for failing to pay Meghan's college freshman year expenses. Specifically, in his

second assignment of error, Father argues his due process rights were violated because the

contempt hearing and the magistrate's decision both addressed Meghan's college expenses

for her entire freshman year, rather than his unpaid share of the fall semester expenses. In

his third assignment of error, Father argues the trial court abused its discretion in finding

Father failed to prove his inability to pay his share of Meghan's college freshman year
                                               -6-
                                                                      Warren CA2016-05-039

expenses.

       {¶ 24} As an initial matter, we note that Father was found to be in civil contempt for his

failure to pay his support obligations. "The distinction between civil and criminal contempt

depends upon the character and purpose of the sanctions imposed."                Mackowiak v.

Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-3013, ¶ 38. Where the

sanctions imposed are primarily for reasons benefiting the complainant and are remedial and

coercive in nature, the contempt is civil in nature. Id. at ¶ 39. "Prison sentences imposed as

punishment for civil contempt are conditional, and the contemnor is said to carry the keys of

his prison in his own pocket due to the fact that his compliance with the court order secures

his freedom." Whittington v. Whittington, 12th Dist. Warren No. CA2011-06-065, 2012-Ohio-

1682, ¶ 23. A trial court's finding of civil contempt will not be disturbed on appeal absent an

abuse of discretion. Dimitriou v. Dimitriou, 12th Dist. Warren No. CA2011-11-119, 2012-

Ohio-4773, ¶ 13.

       {¶ 25} The record reveals that Father complied with the trial court's purge conditions

and purged himself of the contempt charge. On May 19, 2016, the trial court issued the

following entry: "The Defendant was found in contempt in the Magistrate's Decision dated

March 1, 2016. This matter is set for a Final Sentencing and Purge hearing on May 19, 2016

at 9:00 a.m. The Defendant, Michael Ganaway, has completed everything necessary to

purge his contempt. The hearing on May 19, 2016 at 9:00 a.m. is hereby vacated."

(Emphasis added.)

       {¶ 26} An appeal from a finding of contempt becomes moot when the offender either

purges himself of the contempt or serves the sentence. Dreisilker v. Carrelli, 12th Dist.

Warren No. CA2015-06-052, 2016-Ohio-342, ¶ 15; see also Docks Venture, L.L.C. v.

Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, ¶ 22 (if Dashing Pacific

had avoided the sanction by purging the contempt, then it would have rendered its appeal
                                              -7-
                                                                    Warren CA2016-05-039

moot). Such a holding stems from the general rule that satisfaction of a judgment strips a

party of the right to appeal. Grundey v. Grundey, 10th Dist. Franklin No. 13AP-224, 2014-

Ohio-91, ¶ 20. Because an appellate court must decide only actual controversies, it may not

decide contempt appeals once the contemnor has purged the contempt. Id.

      {¶ 27} Because Father complied with the trial court's purge conditions, thereby purging

himself of the contempt charge, we find that Father's appeal of the magistrate's contempt

finding is moot. Consequently, Father's second and third assignments of error are moot and

we need not address the issues on their merits. Pagliaro v. Pagliaro, 12th Dist. Clermont No.

CA93-02-014, 1993 Ohio App. LEXIS 4074, *6-7 (Aug. 23, 1993).

      {¶ 28} Assignment of Error No. 4:

      {¶ 29} THE DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF

COUNSEL.

      {¶ 30} Father argues he received ineffective assistance of counsel because trial

counsel should have "called to the [trial] court's attention that it was an error to call the

[magistrate's discovery] ruling a decision" and not an order, "should have been more diligent

in getting opposing counsel discovery," and failed to file "any substantial objection and

requesting transcript for the Magistrate's March 1, 2016 [contempt] decision."

      {¶ 31} Given our resolution of Father's second and third assignments of error, his

fourth assignment of error is moot and we decline to address it. See App.R. 12(A)(1)(c).

      {¶ 32} Appeal dismissed.


      HENDRICKSON, P.J. and RINGLAND, J., concur.




                                             -8-
