[Cite as Solove v. Solove, 2012-Ohio-1335.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
JEROME G. SOLOVE                               :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CAF-08-0070
ALICE M. SOLOVE                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Delaware County
                                                   Court of Common Pleas, Division of
                                                   Domestic Relations, Case No. 06DRA
                                                   02059


JUDGMENT:                                          Affirmed in part and Vacated in part


DATE OF JUDGMENT ENTRY:                            March 26, 2012



APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant

DAVID J. GORDON                                    ANTHONY M. HEALD
40 N. Sandusky Street                              125 N. Sandusky Street
Delaware, OH 43015                                 Delaware, OH 43015
[Cite as Solove v. Solove, 2012-Ohio-1335.]


Gwin, P.J.

        {1}     Defendant-appellant Alice M. Solove appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Delaware County, Ohio, which adopted

the decision of the magistrate finding appellant in contempt of court and ordering her to

provide health insurance for her two minor children under her employer’s family

insurance plan. Plaintiff-appellee Jerome G. Solove is her ex-husband and the father of

the children. Appellant assigns four errors to the trial court:

        {2}     “I. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND

ABUSED ITS DISCRETION IN FINDING APPELLANT IN CONTEMPT OF COURT,

PARTICULARY IN LIGHT OF THE FACT THAT NO MOTION FOR CONTEMPT WAS

PENDING.

        {3}     “II. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND

ABUSED ITS DISCRETION IN ORDERING HER TO OBTAIN HEALTH INSURANCE

FOR THE YOUNGER MINOR CHILDREN OF THE PARTIES.

        {4}     “III. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN NOT ALLOWING REQUIRED COURT

PROCEEDURES IN THE HEARING IT CONDUCTED ON MAY 2, 2011.

        {5}     “IV. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN REFUSING TO GRANT THE CONTINUANCE

SOUGHT.”

        {6}     The record shows the parties terminated their marriage by way of an

agreed judgment entry and decree of divorce on June 7, 2007. The parties’ shared

parenting plan provided in pertinent part:
Delaware County, Case No. 2011-CAF-08-0070                                             3


      The Father shall provide health and medical insurance for the children *** should

      the Mother later be able to obtain health insurance coverage for the children

      which is available to her for reasonable cost through employment and if such

      insurance is less costly or has better coverage than the Father’s current

      insurance plan, then Mother shall provide health and medical insurance to the

      children at that time.

      {7}   On February 23, 2011, appellee filed a motion to require appellant to cover

the children on her health insurance. Appellant responded with a pro se show cause

motion alleging appellee had failed to pay spousal support. On April 27, 2011, appellant

filed a motion to continue the hearing that had been set for May 2. The magistrate

overruled the motion and conducted a hearing on May 2. The magistrate swore both

parties in and after some discussion, appellant withdrew her motion for contempt.

      {8}   The magistrate found appellant in contempt and directed her to obtain and

maintain health insurance for the minor children. The trial court overruled appellant’s

objections, finding the evidence presented to the magistrate supported her decision.

                                              I.

      {9}   In her first assignment of error, appellant argues the court abused its

discretion in finding her in contempt of court, particularly because no motion for

contempt was pending. At the hearing, both parties agreed there was no motion for

contempt of court filed against appellant, but only a motion to require her to add the

children to her health insurance coverage.

      {10} Contempt has been defined as a disregard, or disobedience to, an order or

command of judicial authority. State v. Flinn, 7 Ohio App. 3d 294, 455 N.E. 2d 691
Delaware County, Case No. 2011-CAF-08-0070                                              4


(1982). Contempt can be classified as civil or criminal, depending upon the character

and purpose of the punishment imposed. The punishment for civil contempt is remedial

or coercive in nature and for the benefit of the complainant. Pugh v. Pugh, 15 Ohio St.

3d 136, 472 N.E. 2d 1085 (1984).         The purpose of the punishment for criminal

contempt, on the other hand, is punitive and not coercive and usually involves

unconditional fines or prison terms. Id. The burden of proof in a civil contempt action is

clear and convincing evidence, while in a criminal contempt action it is beyond a

reasonable doubt. Brown v. Executive 200, Inc., 64 Ohio St. 2d 250, 416 N.E. 2d 610

(1980). Proof of purposeful, willing or intentional violation of a court’s priority is not

required in civil contempt. Pugh, supra. A court may sua sponte make a finding of

contempt.

      {11} Our standard of review is the abuse of discretion standard. State ex rel.

Ventrone v. Brikel, 65 Ohio St. 2d 10, 417 N.E. 2d 1249 (1981). Abuse of discretion

connotes an attitude on the part of the trial court that is unreasonable, arbitrary or

unconscionable. Rock v. Cabral, 67 Ohio St. 3d 108, 616 N.E. 2d 218 (1993).

      {12} A sanction for civil contempt must allow the contemptnor the opportunity to

purge himself or herself of the contempt. In Re: Purola, 73 Ohio App. 3d 306, 596 N.E.

2d 1140 (1991). An order suspending punishment on the condition the contemptnor

comply in the future with the court order does not allow for purging. Instead, it only

regulates future conduct, and is a reaffirmation of the court’s previous order. Tucker v.

Tucker, 10 Ohio App. 3d 251, 461 N.E. 2d 1337 (1983).

      {13} Here, the order does not provide for any penalty or sanction for appellant’s

prior conduct. The order does not allow for her to purge herself of the contempt, but only
Delaware County, Case No. 2011-CAF-08-0070                                              5


directed her to comply in the future with the court order. We find the court erred in

finding appellant in contempt.

      {14} The first assignment of error is sustained.

                                               II.

      {15} In her second assignment of error, appellant argues the court abused its

discretion in ordering her to obtain health insurance for the minor children. The parties’

agreement stated that appellee should provide the insurance unless appellant’s is “less

costly or has better coverage”. Appellant argues the evidence did not establish what

each party’s policy would cover or how much each party would pay to add the children

to the policy.   Appellant concludes appellee did not meet his burden of proving

appellant’s policy was better or cheaper, and the court should not have ordered her to

provide health insurance for the children.

      {16} Appellant filed pro se objections to the magistrate’s decision, arguing

appellee would maintain a family plan for insurance regardless of whether these

children were included, so the two minor children cost him nothing extra. By contrast,

her employment was soon to be cut to part-time and she would no longer be eligible for

insurance except under COBRA. She alleged adding the children to her health care

policy would cost more and provide less.

      {17} The trial court addressed appellant’s objections in its judgment entry of

June 30, 2011.     The court found it was limited in its review to the evidence the

magistrate had before her when she made her decision, and appellant had not

presented any documentation to show her employment would be cut from full-time to

part-time, and she would lose her medical insurance benefits. The court also noted that
Delaware County, Case No. 2011-CAF-08-0070                                               6


at the hearing appellant admitted she was not aware that she had to provide health

insurance if the cost was less to her because she did not look at the shared-parenting

plan. Appellee testified he had contacted her when she got her job to ask about insuring

the children.

       {18} Appellant incorrectly asserts the magistrate based her decision solely upon

representations and statements made rather than on testimony presented.               The

transcript of the hearing shows both parties were sworn in at the beginning of the

hearing, and while the magistrate conducted the hearing rather informally, nevertheless,

the testimony constituted evidence.

       {19} The second assignment of error is overruled.

                                               III.

       {20} In her third assignment of error, appellant argues the magistrate

disregarded all the proper procedures in conducting the hearing. Appellant argues the

magistrate announced from the bench the motion to continue would not be granted, but

did not rule on it in any “proper fashion” prior to the date of the hearing. Appellant also

argues the magistrate did not require appellee, as the moving party, to present

evidence, but merely asked questions of her own and did not have the documents

marked as exhibits.

       {21} At the hearing, appellant advised the court the basis of her motion to

continue was her expectation she could not afford to retain an attorney until June 1.

The court found the motion had been pending since February 23, and appellant had

ample opportunity to hire an attorney.
Delaware County, Case No. 2011-CAF-08-0070                                                7


       {22} We find although the hearing before the magistrate was informal,

nevertheless, it was not procedurally flawed. Appellant was afforded notice of the

proceeding and was given the opportunity to present her case.

       {23} The third assignment of error is overruled.

                                                IV.

       {24} In her fourth assignment of error, appellant argues the court abused its

discretion in not granting the continuance. Appellant failed to raise this argument by

bringing it to the trial court’s attention in her objections. Accordingly, appellant has not

preserved this matter for appeal. Civ. R. 53(E)(3)(d).

       {25} The fourth assignment of error is overruled.

       {26} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Delaware County, Ohio is affirmed in part, and the

finding of contempt is vacated.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _________________________________
                                              HON. SHEILA G. FARMER
WSG:clw 0314
[Cite as Solove v. Solove, 2012-Ohio-1335.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


JEROME G. SOLOVE                                  :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ALICE M. SOLOVE                                   :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CAF-08-0070




   For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Domestic Relations Division, of Delaware County, Ohio is

affirmed in part, and the finding of contempt is vacated. Costs to be split between the

parties.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
