[Cite as In re S.B., 2012-Ohio-1228.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                               :

                                               :    C.A. CASE NO. 24856
IN RE: S.B. AND A.B.
                                               :    T.C. CASE NOS. JC 96-6142
                                                                   JC 96-6143
                                               :
                                                    (Civil Appeal from
                                                :   Common Pleas Court,
                                                    Juvenile Division)
                                        . . . . . . . . .

                                          O P I N I O N

                    Rendered on the 23rd day of March, 2012.

                                        . . . . . . . . .

Kevin D. Hughes, Atty. Reg. No. 0065620, 20 South Main Street,
Springboro, OH 45066
     Attorney for Appellant

David M. McNamee, Atty. Reg. No. 0068582, 42 Woodcroft Trail, Suite
D, Beavercreek, OH 45430
     Attorney for Appellee

                                        . . . . . . . . .

GRADY, P.J.:

                                          Introduction

        {¶ 1} This is an appeal from a final order of the juvenile court that found the father

of two minor children in contempt for failing to pay his share of the children’s uninsured

medical expenses and determining the amount he owes. We reverse the finding of contempt
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because the court previously relieved Father of a duty to pay such expenses absent his

agreement to the amount he owes or the court’s prior determination of the amount of those

expenses, neither of which had occurred. We affirm the determination of the amount Father

owes as not against the manifest weight of the evidence.

                          Statement of Facts and Procedural History

       {¶ 2}    On October 23, 1996, the juvenile court entered an agreed judgment that

provided, among other things, that Plaintiff Mother and Defendant Father are the biological

parents of two minor children, S.B. and A.B., that Mother shall be the residential parent and

legal custodian of the two children, and that Father shall pay monthly child support to Mother.

 The agreed order further provided that:

               [Mother] shall maintain and be responsible for the total cost of health

       insurance for the minor child until such time that medical insurance for the

       minor child becomes available to [Father] at a reasonable cost. Any ordinary

       medical, dental and optical expenses for the child which are not covered by

       insurance, ordinary being defined as those totalling not more than $100 per

       year, are the responsibility of [Mother]. Any extraordinary medical, dental,

       optical and psychological expenses for the minor child which are not covered

       by insurance, are to be shared by the parties as follows: 80% by [Father] and

       20% by Mother.

       {¶ 3} The juvenile court entered a subsequent order on November 16, 2006, which

               ORDERED that [Mother] shall be responsible for the first $100

       incurred per child per calendar year of uninsured medical, dental and optical
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       expenses for the minor child(ren), and that [Father] and [Mother] shall share

       liability for the cost of the remaining medical, dental, optical and all

       psychological expenses (1) in amounts equal to their percentage of total

       income found on Line 16 of the Child Support Computation Worksheet as

       follows: [Father] 33% and [Mother] 67%; or (other agreement or order).

       {¶ 4} On May 8, 2009, Mother filed a motion to increase child support and a motion

to find Father in contempt for failing to pay his portion of the out of pocket medical expenses

as ordered by the court. Both parties subsequently filed additional motions.

       {¶ 5} After a series of continuances, the parties reached an agreement regarding the

outstanding motions.     On June 16, 2010, the court adopted a magistrate’s decision that

incorporated the parties’ agreement. The juvenile court’s order provided, in pertinent part:

                The parties and their attorneys have submitted an agreed entry. The

       Court has reviewed the agreed entry attached hereto and finds it equitable and

       in the children’s best interest. The Court therefore incorporates and adopts the

       agreed entry as a Court order.

                ***

                The parties further agreed that the father will provide health insurance

       now available through his wife and that the parties will cooperate with

       obtaining that insurance. Uninsured medical, dental, vision, or psychological

       expenses will be paid by the parties according to Line 16 of the computation

       sheet attached to the agreed entry.1 * * *


            1
                Line 16 of the computation sheet sets out the percentages
                                                                                              4

               The parties further agree that the father will pay his portion of any

        pending uninsured medical, dental, vision, or psychological expenses, if any,

        through counsel, within 30 days of the agreement.

        Page 6 of the agreed entry referred to in the June

                                      16,   2010    order

                                      provides, in part:



               EXISTING MOTIONS FOR UNINSURED EXPENSES:

               The parties shall endeavor to agree upon a dollar amount for the

        uninsured medical expenses owed by Father to Mother. The parties agree that

        Father shall pay to Mother the agreed upon sum within thirty days of reaching

        the agreement or in the event that an agreement is not reached and a Motion is

        filed with the court, within thirty days of the Court issuing an Order as the

        amount owed.

        {¶ 6} On July 13, 2010, Mother filed a motion to find Father in contempt of court for

failing to pay child support, failing to pay his portion of the medical expenses, and failing to

provide health insurance for the minor children, as ordered in the June 16, 2010 order. A

hearing on Mother’s motion was held before a magistrate on January 4, 2011.

        {¶ 7} On January 25, 2011, the magistrate issued her decision, finding in pertinent

part:


    of each parent’s income, Father’s being 48.5% and Mother’s being
    51.5%, of the two parents’ total income. It does not identify
    a dollar amount that either is obligated to pay.
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               The court finds [Father] to be in contempt of Court because evidence

       shows by clear and convincing evidence that [Father] was ordered to pay his

       portion of the medical expenses of the children not paid by insurance minus the

       first $100.00 per calendar year, that he was ordered to pay a certain percentage

       of different years which was noted by [Mother] and accounted for on the bills,

       that there were outstanding bills which were presented to him, that he received

       the notices of the bills in the form he required which were the EOB’s

       (explanation of benefits), and that he did not pay his portion within the 30 days

       required in the parties agreement which was filed as Court decision of June 16,

       2010. * * * [Father] owes $10,835.13 for uninsured medical expenses from

       2002 through 2010 minus $207.00 he paid in 2009 and $623.00 he paid in

       2010, which brings his medical arrearage to $10,005.13. This amount shall be

       added to [Father’s] child support arrearage * * *. [Father] shall pay attorney

       fees in the amount of $350.00 to counsel for [Mother] * * * within 30 days of

       the date of this decision and the Court therefore orders that the said [Father] is

       sentenced to thirty (30) days in the Montgomery County Jail. The Court

       further orders that the said sentence is suspended on the condition that the

       defendant pays a $1000.00 arrearage within 90 days of the time-stamped date

       of this decision as purge.

       {¶ 8} Father filed objections to the magistrate’s decision, which the trial court

overruled on September 19, 2011. Father filed a timely notice of appeal from the trial court’s

order, raising the following assignment of error:
                                                                                              6

       “THE TRIAL COURT ERRED IN FINDING FATHER IN CONTEMPT AS THERE

WAS NOT COMPETENT AND CREDIBLE EVIDENCE SUBMITTED WARRANTING A

FINDING OF CONTEMPT OR ADDING $10,005.13 TO FATHER’S CHILD SUPPORT

ARREARS.”

       {¶ 9} A person may be punished for contempt for “[d]isobedience of, or resistance

to, a lawful writ, process, order, rule, judgment, or command of a court or officer[.]” R.C.

2705.02(A). Father argues that the trial court erred in finding him in contempt for failing to

pay Plaintiff for uninsured medical expenses from 2002 to 2010.

                                         Legal Analysis

       {¶ 10} “A finding of civil contempt requires clear and convincing evidence that the

alleged contemnor has failed to comply with the court’s prior orders.” (Citation omitted.)

Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268, 675 N.E.2d 1345 (1996). In

Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 331, 708 N.E.2d 193 (1999), the Ohio

Supreme Court defined “clear and convincing evidence” as:

       that measure or degree of proof which is more than a mere “preponderance of

       the evidence,” but not to the extent of such certainty as is required “beyond a

       reasonable doubt” in criminal cases, and which will produce in the mind of the

       trier of facts a firm belief or conviction as to the facts sought to be established.

       {¶ 11} We review the juvenile court’s contempt finding for an abuse of discretion. In

AAAA Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990), the Supreme Court set forth the following test to determine

whether the trial court had abused its discretion:
                                                                                            7

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

       (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is

       to be expected that most instances of abuse of discretion will result in decisions

       that are simply unreasonable, rather than decisions that are unconscionable or

       arbitrary.

               A decision is unreasonable if there is no sound reasoning process that

       would support that decision. It is not enough that the reviewing court, were it

       deciding the issue de novo, would not have found that reasoning process to be

       persuasive, perhaps in view of countervailing reasoning processes that would

       support a contrary result.

       {¶ 12} On January 25, 2011, the magistrate found Father in contempt on a finding that

Father had failed to pay his portion of the medical expenses “within the 30 days required in

the parties agreement which was filed as Court decision of June 16, 2010.” The agreement

referenced in the juvenile court’s June 16, 2010 order is the “AGREED ORDER AND

ENTRY” that was submitted to the juvenile court by Mother and Father. The agreement

provided that Mother and Father would “endeavor to agree upon a dollar amount for the

uninsured medical expenses owed by Father to Mother.” If Mother and Father came to an

agreement, then Father had 30 days from the date on which agreement was reached to pay

Mother the agreed upon amount. In the event the parties could not come to an agreement,

however, Father had 30 days to pay the amount owed to Mother from the date on which the

juvenile court determined the amount Father owes.
                                                                                            8

       {¶ 13} A judgment performs its main function when it adjudicates the existence or

nonexistence of the liability sought to be established. Symons v. Eichelberger, 110 Ohio St.

224, 114 N.E. 279 (1924). Liability is “[t]he quality or state of being legally obligated or

accountable; legal responsibility to another or to society, enforceable by civil remedy or

criminal punishment.”     Black’s Law Dictionary 925 (7th Ed. 1999).         The “AGREED

ORDER AND ENTRY” of June 16, 2010 imposed no liability on either party. It was nothing

more than the court’s approval of the parties’ mutual promises to consult, and agree if

possible, on the amount Father owes for his share of uninsured medical expenses, and

imposing an obligation on Father to pay that undetermined amount or an amount the court

subsequently determines he owes.

       {¶ 14} It is undisputed that Mother and Father were unable to come to an agreement

on the amount of money Father owed for medical expenses. Therefore, pursuant to the terms

of the June 16, 2010 order and the “AGREED ORDER AND ENTRY,” Father would have to

pay Mother an undetermined amount for uninsured medical expenses within 30 days after the

date on which the juvenile court issued an order determining the amount owed. The juvenile

court did not issue such an order prior to the contempt hearing. Rather, the first time the

juvenile court made a finding as to the amount owed by Father for medical expenses incurred

from 2002 to 2010 was in the juvenile court’s September 19, 2011 judgment, which overruled

Father’s objections to the magistrate’s January 25, 2011 decision and adopted that decision as

the court’s order, finding Father in contempt.

       {¶ 15} Based on the record before us, we conclude that the juvenile court abused its

discretion when it found Father in contempt of the court’s June 16, 2010 order, because Father
                                                                                            9

had not resisted or disobeyed any requirement to pay an amount of uninsured medical

expenses that order required him to pay. Therefore, that portion of Father’s assignment of

error is sustained and the juvenile court’s judgment finding Father in contempt will be

reversed and vacated. Further, the award of $350.00 in attorney fees to Mother’s counsel will

be reversed and vacated as that award was based on the juvenile court’s finding of contempt.

R.C. 3105.21(C).

       {¶ 16} Father also argues that the juvenile court’s finding that Father owed $10,005.13

for unpaid medical expenses from 2002 to 2010 is against the manifest weight of the

evidence. “Judgments supported by some competent, credible evidence going to all the

essential elements of the case will not be reversed by a reviewing court as being against the

manifest weight of the evidence.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279,

376 N.E.2d 578 (1978), syllabus.

       {¶ 17} At the contempt hearing, Mother presented detailed records that she kept

concerning medical expenses that were incurred for the years of 2002 through 2010. In

addition, Mother presented Explanation of Benefits from insurance companies that detailed

what medical services were performed. Further, Mother’s testimony at the hearing supports

the accuracy of her documentation.     That evidence is competent, credible evidence that

supports the juvenile court’s finding that Father owes Mother $10,0005.13 for unpaid medical

expenses.

       {¶ 18} Father argues that the juvenile court’s finding, based on Mother’s

documentation and testimony, is against the manifest weight of the evidence because Father

testified that he had paid more money to Mother than is reflected in her records. The juvenile
                                                                                              10

court clearly decided to credit Mother’s testimony over Father’s testimony. The credibility of

the witnesses and the weight to be given to their testimony are matters for the trier of facts to

resolve. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). In State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997), we observed:

               Because the factfinder * * * has the opportunity to see and hear the

       witnesses, the cautious exercise of the discretionary power of a court of appeals

       to find that a judgment is against the manifest weight of the evidence requires

       that substantial deference be extended to the factfinder’s determinations of

       credibility. The decision whether, and to what extent, to credit the testimony

       of particular witnesses is within the peculiar competence of the factfinder, who

       has seen and heard the witness.

       {¶ 19} The testimony and supporting documentation presented at the hearing by

Mother is competent, credible evidence that supports the juvenile court’s finding. Therefore,

the juvenile court’s determination that Father owes $10,0005.13 for unpaid medical expenses

and creating an arrearage in that amount, is not against the manifest weight of the evidence.

That portion of Father’s assignment of error is overruled.



                                          Conclusion

       {¶ 20} The assignment of error is sustained, in part, and overruled, in part. That part

of the judgment of the juvenile court finding Father in contempt and awarding attorney fees to

Mother’s counsel will be reversed, and that part of the judgment finding Father owes Mother

$10,005.13 for unpaid medical expenses will be affirmed.
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DONOVAN, J., And HALL, J., concur.



Copies mailed to:

Kevin D. Hughes, Esq.
David M. McNamee, Esq.
Hon. Anthony Capizzi
