[Cite as Dobbins v. Evans, 2012-Ohio-898.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

RONNIE C. DOBBINS                                JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                      Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 2011CA00171
HEATHER EVANS

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Family Court Division,
                                              Case No. 2010JCV00171


JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                       March 5, 2012


APPEARANCES:


For Defendant-Appellee                        For Plaintiff-Appellant


RONALD SCOTT SPEARS                           JULIE A. SCHAFER
554 White Pond Drive, Suite D                 755 White Pond Drive, Suite 403
Akron, Ohio 44320                             Akron, Ohio 44320
Stark County, Case No. 2011CA00171                                                      2

Hoffman, J.


         (¶1)    Plaintiff-appellant Ronnie C. Dobbins appeals the July 8, 2011 Judgment

Entry entered by the Stark County Court of Common Pleas, Family Court Division,

which dismissed his motion to show cause, following a hearing. Defendant-appellee is

Heather Evans.1

                              STATEMENT OF THE CASE AND FACTS

         (¶2)    Appellant and Appellee are the unmarried parents of J.E. (DOB 7/29/08).

On February 16, 2010, Appellant filed a motion requesting visitation with the child. The

trial court scheduled the matter for hearing on April 5, 2010. The parties appeared for

the hearing on that day and ultimately entered into an Agreed Judgment Entry. The

Agreed Judgment Entry specifically provided: “Father shall have two weeks

companionship every two months, commencing August, 2010. * * * Both parties shall

meet halfway for visitation there and back on weekends.”           April 5, 2010 Agreed

Judgment Entry. The entry is signed by both parties, the magistrate, and the trial court.

         (¶3)    On April 7, 2011, Appellant filed a motion to show cause, requesting the

trial court order Appellee to appear and show cause why she should not be held in

contempt for violating the April 5, 2010 Agreed Judgment Entry.        In his affidavit in

support of his motion, Appellant averred he made repeated attempts to visit with J.E.,

but each time Appellee would prevent such from occurring. The parties appeared for

hearing on June 9, 2011. At that time, Appellee requested a continuance to obtain

counsel. The trial court rescheduled the matter for July 6, 2011. The trial court advised

Appellee to abide by the Agreed Judgment Entry regarding visitation.

1
    Appellee has not filed a brief in this matter.
Stark County, Case No. 2011CA00171                                                      3


       (¶4)   At the July 6, 2011 hearing, Appellant testified regarding the April 5, 2010

Agreed Judgment Entry, and the parenting time he was to receive pursuant thereto.

Appellant stated when he attempted to exercise his parenting time in August, 2010, the

conversation with Appellee ended in an argument.        Appellant subsequently learned

Appellee and the child had moved to North Carolina. Appellee did not notify Appellant

of her intentions to move and did not provide Appellant with an address. Sometime in

May, 2011, after he filed his motion for contempt, Appellant learned Appellee and the

child had returned to Ohio.

       (¶5)   Therefore, Appellant contacted Appellee to arrange his parenting time,

however, that conversation also ended in an argument. After the parties appeared

before the trial court on June 9, 2011, Appellee was ordered to provide Appellant with

his parenting time.    Appellant testified while he was placing J.E. in his car seat,

Appellee’s boyfriend and mother started yelling and cursing at him.         According to

Appellant, Appellee’s boyfriend grabbed him by the throat and threw him up against the

car.   Police were called to the scene and Appellant pressed charges.          On cross-

examination, Appellant stated at the time the parties entered into the April 5, 2010

Agreed Judgment Entry, Appellee lived in Alliance, Ohio, and Appellant lived in Mason,

Ohio. The parties had agreed to the longer length of the actual visit and the longer gap

between the visits because of the distance between them.

       (¶6)   Appellee testified as to the specifics of the parenting time under the April

5, 2010 Agreed Judgment Entry. Appellee stated Appellant was to start exercising his

parenting time on August 1, 2010. She indicated the visit did not occur, explaining

Appellant had cancelled because he could not get the time off from work. Appellee
Stark County, Case No. 2011CA00171                                                     4


moved to North Carolina in late April, 2010. Appellee claimed the parties came to the

agreement on the visitation because Appellant knew she was moving out of state.

Appellee testified she provided Appellant with her new address on April 5, 2010.

Appellee acknowledged she had told Appellant the only way he would be able to see

J.E. would be to travel all the way to North Carolina, but explained it was Christmastime

and she did not want to travel because of the weather.

        (¶7)   Appellee relocated to Ohio at the end of January, 2011. Appellee stated

she notified Appellant she had returned to Ohio and he could come see J.E. On cross-

examination, Appellee acknowledged the conversations between Appellant and herself

often became heated. She further conceded, due to the argumentative nature of the

conversations, much information did not get relayed.         Although Appellee agreed

Appellant had not had ten weeks of parenting time over the previous fourteen month

period, she had nonetheless offered him time to spend with J.E. Appellee noted she

had informed Appellant, while they were negotiating the April 5, 2010 Agreed Judgment

Entry, she was potentially moving to North Carolina. Appellee explained the move was

the reason for the time period set up in the visitation schedule.       Appellee added

Appellant knew at all times where she was, where his son was, and that his son was

safe.

        (¶8)   On re-direct examination, Appellee stated whenever she spoke with

Appellant about exercising his parenting time, Appellant would tell her he was

unavailable.   Appellee indicated she had willingly signed the April 5, 2010 Agreed

Judgment Entry, but acknowledged she had reneged on it. Appellee defended her
Stark County, Case No. 2011CA00171                                                      5


behavior, stating she had been willing to abide by the terms of the Agreed Judgment

Entry, except on one occasion.

      (¶9)   After hearing the testimony, the trial court found Appellant had not

established Appellee acted willfully. Via Judgment Entry filed July 8, 2011, the trial

court dismissed Appellant’s Motion for Contempt.

      (¶10) It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:

      (¶11) “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

APPELLEE WAS NOT IN CONTEMPT OF THE COURT’S PRIOR ORDERS AND WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                            I

      (¶12) An appellate court's standard of review of a trial court's contempt finding is

abuse of discretion. State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573

N.E.2d 62. In order to find an abuse of discretion, we must determine 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, 450 N.E.2d 1140.

      (¶13) While contempt can be direct or indirect, this matter clearly concerns

indirect contempt, which is defined as behavior which occurs outside the presence of

the court and demonstrates a lack of respect for the court or its lawful orders. Sansom

v. Sansom, 10th Dist. No. 05AP–645, 2006–Ohio–3909, ¶ 23.

      (¶14) Contempt may be classified as either criminal or civil in nature. Brown v.

Executive 200, Inc. (1980), 64 Ohio St.2d 250, 254, 416 N.E.2d 610. A civil contempt
Stark County, Case No. 2011CA00171                                                       6


citation is used to force compliance with a court order or judgment whereas a criminal

contempt citation is imposed solely for the purpose of punishment. Id.

       (¶15) Although both types of contempt contain an element of punishment, courts

distinguish criminal and civil contempt not on the basis of punishment, but rather, by the

character and purpose of the punishment. State v. Kilbane (1980), 61 Ohio St.2d 201,

205, 400 N.E.2d 386. “The purpose of civil contempt proceedings is to secure the

dignity of the courts and the uninterrupted and unimpeded administration of justice.”

Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 58, 271 N.E.2d 815.

Punishment is remedial or coercive and for the benefit of the complainant in civil

contempt. Brown, supra, at 253. Prison sentences are conditional. Id. The contemnor is

said to carry the keys of his prison in his own pocket, since he will be freed if he agrees

to do as ordered. Id. (Citation omitted). Contempt can only occur, however, “where the

contemnor has the power to perform the act listed in the court order but fails to do so.”

Schaefer v. Schaefer, 2d Dist. No.2004–CA–65, 2005–Ohio–3063, ¶ 13, citing Wilson v.

Columbia Cas. Co. (1928), 118 Ohio St. 319, 328–329, 160 N.E. 906.

       (¶16) Interference with visitation is typically redressed in family courts via civil

contempt. See, e.g., Montgomery v. Montgomery, 4th Dist. Nos. 03CA2923, 03CA2925,

2004–Ohio–6926, ¶ 13 (Citation omitted).

       (¶17) “A prima facie case of civil contempt is made when the moving party

proves both the existence of a court order and the nonmoving party's noncompliance

with the terms of that order.” Wolf v. Wolf, 1st Dist. No. C–090587, 2010–Ohio–2762, ¶

4. “Clear and convincing evidence is the standard of proof in civil contempt

proceedings.” Flowers v. Flowers, 10th Dist. No. 10AP–1176, 2011–Ohio–5972, ¶ 13.
Stark County, Case No. 2011CA00171                                                     7


      (¶18) In the instant action, the trial court found Appellant failed to prove

Appellee’s refusals were willful; therefore, negating a finding of contempt. We disagree

with the trial court’s rationale. Because the nature of the contempt is civil, “willful

disobedience” (i.e., intent) is not a necessary element. Pugh v. Pugh, 15 Ohio St.3d

136, 140, 472 N.E.2d 1085.

      (¶19) We find Appellant established a prima facie case of civil contempt.

Appellee acknowledged the existence of, and her agreement to, the April 5, 2010

Agreed Judgment Entry. She conceded she had refused to “meet halfway” in order for

visits between Appellant and J.E. to occur. Because Appellant established a prima facie

case of civil contempt, we find the trial court abused its discretion in finding Appellee

was not guilty of contempt.

      (¶20) Appellant’s sole assignment of error is sustained. The judgment of the

Stark County Court of Common Pleas is reversed and the matter remanded for further

proceedings consistent with this Opinion and the law.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
Stark County, Case No. 2011CA00171                                                8


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


RONNIE C. DOBBINS                          :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
HEATHER EVANS                              :
                                           :
       Defendant-Appellee                  :         Case No. 2011CA00171


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is reversed and the matter remanded for further

proceedings consistent with our Opinion and the law. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin_____________________
                                           HON. W. SCOTT GWIN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE
