[Cite as Helton v. Helton, 2012-Ohio-1854.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

AARON HELTON, JR.                                         :

        Plaintiff-Appellant                               :       C.A. CASE NO.     24734

v.                                                        :       T.C. NO.   04DR986

KAY L. HELTON                                             :       (Civil appeal from Common
                                                                  Pleas Court, Domestic Relations)
        Defendant-Appellee                     :

                                                          :

                                              ..........

                                              OPINION

                         Rendered on the           27th       day of     April      , 2012.

                                              ..........

CHERYL R. WASHINGTON, Atty. Reg. No. 0038012, 450 First National Plaza, 130 West
Second Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

KAY L. HELTON, 5533 Autumn Woods Drive, Apt. 4, Trotwood, Ohio 45426
     Defendant-Appellee

                                              ..........

DONOVAN, J.

                {¶ 1} This matter is before the Court on the Notice of Appeal of Aaron

                Helton, filed
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July 18, 2011. Aaron appeals from the trial court’s decision of June 24, 2011, which

vacated the Magistrate’s decision of October 5, 2010, in which the Magistrate found Kay

Helton, Aaron’s ex-wife and mother of his son, in contempt of court for interfering with

Aaron’s parenting time, and which also ordered her to pay Aaron $3,300.00 as replacement

value for a grandfather clock. We hereby affirm the judgment of the trial court.

        {¶ 2}   The parties’ Final Judgment and Decree of Divorce was filed on April 6,

2005, and an amended decree was filed April 28, 2005. At the time of the divorce, Kay

resided in Delaware and Aaron was in the military. One son was born of the marriage, and

his date of birth is August 30, 1993. Kay was granted custody of the child, and Aaron was

ordered to pay child support.      Pursuant to the amended decree, Aaron was awarded

parenting time with his son according to the court’s standard order, “when he is in the area,

provided he gives Mom 48 hours advanced notice, and such other times as agreed by the

parties.”   The amended decree further provided that Aaron “shall be entitled to the

grandfather clock.    Wife shall cooperate with Husband in making arrangements for

Husband to get these items.”

        {¶ 3}   On October 4, 2007, Aaron filed a motion to show cause, which provided as

follows:

                Now comes Plaintiff, by and through counsel, and hereby moves the

        Court for an Order directing the Defendant, Kay Helton, to appear and show

        cause on why she should not be held in Contempt of Court for failure to

        adhere to the Amended Final Judgment and Decree of Divorce (Nunc Pro

        Tunc), to wit the following: (1) “Husband shall be entitled to the grandfather
                                                                                             3

       clock.   Wife shall cooperate with Husband in making arrangements for

       Husband to get these items.”; (2) “Plaintiff is awarded the Standard Order of

       Parenting Time, when he is in the area, provided he gives Mom 48 hours

       advanced notice, and such other times as agreed by the parties.” Plaintiff has

       not received the grandfather clock as directed and has not been afforded the

       opportunity to see his son.

       {¶ 4}    On January 31, 2008, after a hearing, the Magistrate issued a Decision that

found Kay in contempt for failing to provide parenting time and for failing to give Aaron the

grandfather clock. The Magistrate set a specific parenting time schedule governing the

periods of summer, Thanksgiving and spring break, and also governing the child’s

transportation between the parties. Regarding the grandfather clock, the Magistrate noted

that Kay had sold the clock, and she ordered her to reimburse Aaron for the value of the

clock or to provide a clock of like or similar value. She ordered the parties to exchange

receipts and/or appraisals to ascertain the value of the original clock. The Magistrate further

assessed costs of the action against Kay. The Decision concludes, “If no objections are filed

the Magistrate Decision is the Permanent Order of the Court,” and it is signed by the trial

court. No objections were filed.

       {¶ 5}    On January 15, 2010, Aaron filed a Motion to Show Cause identical in its

entirety to his motion of October 4, 2007, quoted above. On October 5, 2010, after a

hearing, the Magistrate issued a Decision finding Kay in contempt for parenting time

violations and ordering her to pay Aaron replacement value for the grandfather clock in the

amount of $3,300.00, to be paid in monthly installments of $100.00 for 33 months. In her
                                                                                            4

Decision, the Magistrate noted that at the hearing, Kay made an oral motion to dismiss the

Motion to Show Cause because it did not refer to the Magistrate’s most recent order

regarding parenting time and the grandfather clock, but rather referred to the parties’

amended final decree. The Magistrate overruled the oral motion and found “the defendant

was placed on notice that the plaintiff was pursuing contempt on parenting time and failure

to provide the [g]randfather [c]lock. These were the same issues as addressed in the last

motion to show cause. The defendant had notice of the issues and an opportunity to prepare

a defense.”

       {¶ 6}   Kay filed objections to the Magistrate’s Decision on October 19, 2010,

addressed to the issues of parenting time, the grandfather clock and the assessment of costs

against her.

       {¶ 7}   In its Decision vacating the Decision of the Magistrate, the trial court relied

upon Mont. D.R. Rule 4.42 and found in relevant part as follows:

               * * * The issues raised in the October 4, 2007 show cause motion

       were disposed of by the Magistrate[’s] Decision and Permanent Order filed

       January 31, 2008. Any subsequent show cause motion must clearly state the

       date of the “prior order” and “facts regarding the claim of non-compliance.”

       The motion must be supported by the parties’ affidavit.

               The Court finds plaintiff’s motion to show cause filed January 15,

       2010 does not comply with the rule. The motion makes no reference to the

       most recent “prior order” of January 31, 2008 which established a specific

       long distance parenting time schedule for plaintiff that did not exist at the
                                                                                              5

       time of the amended Final Judgment and Decree of Divorce. Further, no

       facts were contained in the motion as to the events that occurred since the

       January 31, 2008 order regarding the claim of non-compliance. Finally,

       plaintiff failed to support his motion with an affidavit as required by rule.

               The Court finds, as a matter of law, that plaintiff failed to provide

       defendant with adequate notice to prepare a defense to the allegations of

       interference with parenting time since the prior order of January 31, 2008.

       Having found plaintiff’s motion to show cause (January 15, 2010) defective,

       the Court hereby dismisses the motion without prejudice.

       {¶ 8}    Aaron asserts one assignment of error as follows:

       “THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT HAD

RECEIVED INADEQUATE NOTICE AND DISMISSING PLAINTIFF’S MOTION TO

SHOW CAUSE.”

       {¶ 9}    According to Aaron, although “the language of the Amended Divorce

Decree, rather than the Court’s Order, was cited in the Show Cause Motion, the Motion was

sufficient to place Defendant on notice of the issues and to enable her to present a defense.”

We note that Kay did not file a responsive brief.

       {¶ 10} “Clearly, an individual subject to contempt proceedings is entitled to

adequate notice as well as an opportunity to be heard. See R.C. 2705.03. Where the notice

is sufficient to apprise a party of the charges against her, thereby enabling her to prepare her

defense, such notice generally will withstand objections as to content.” McGill v. McGill,

3 Ohio App.3d 455, 445 N.E.2d 1163 (2d Dist.1982).
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       {¶ 11}      Mont. D.R. Rule 4.42 governs motions to show cause and provides:

                (A) Content of Motion. Any motion to show cause shall clearly

       state:

                (1) Each provision of a prior court order with which the party has

       failed to comply;

                (2) The date of the prior order; and

                (3) The facts regarding the claim of non-compliance; and

                (4) The motion shall be supported by an affidavit signed by the party.

       (Emphasis added).

       {¶ 12} As the trial court found, Aaron’s motion does not state any provision of the

“prior court order” of January 31, 2008, with which Kay allegedly failed to comply. It does

not identify the “prior court order” by date. It sets forth no facts regarding Aaron’s claims

of non-compliance with the order of January 31, 2008. Finally, it is not supported by an

affidavit signed by Aaron. In other words, as the trial court correctly determined, as a

matter of law, Aaron’s motion failed to provide Kay with adequate notice to prepare a

defense.

       {¶ 13} Finally, we note that Aaron’s reliance upon DeHart v. Aetna Life Insurance

Co., 69 Ohio St.2d 189, 192-93, 431 N.E.2d 644 (1982), is misplaced, as the matter herein is

distinguishable.    In DeHart, following disposition by summary judgment, counsel for

appellant initiated an appeal and “mistakenly marked that part of the praecipe which signaled

the Court of Appeals that a transcript of proceedings would be forthcoming.” Id., 646.

Pursuant to local rule, the failure to file transcripts was grounds for dismissal of the appeal,
                                                                                             7

and the “failure of the Court of Appeals to receive a transcript of proceedings necessarily

triggered the automatic dismissal mechanism” of the local rule. Id. The Court of Appeals

further overruled appellant’s motion for reconsideration and leave to file an amended

praecipe, and the Supreme Court of Ohio held as follows:

                A court of appeals abuses its discretion when, after dismissing a case,

         sua sponte, for a minor, technical, correctable, inadvertent violation of a local

         rule, it refuses to reinstate the case when: (1) the mistake was made in good

         faith and not as part of a continuing course of conduct for the purpose of

         delay, (2) neither the opposing party nor the court is prejudiced by the error,

         (3) dismissal is a sanction that is disproportionate to the mistake, (4) the

         client will be unfairly punished for the fault of his counsel, and (5) dismissal

         frustrates the prevailing policy of deciding cases on the merits.         Id., at

         syllabus.

         {¶ 14} The DeHart Court also made the following observation regarding local

rules:

                * * * local appellate rules are needed in order to achieve the prompt

         and efficient dispatch of justice. This is a two-pronged objective - the local

         rules must encourage promptness and efficiency, on the one hand, and

         fairness and justice on the other. Fairness and justice are best served when a

         court disposes of a case on the merits. Only a flagrant, substantial disregard

         for the court rules can justify a dismissal on procedural grounds. Local rules,

         at any level of our state system, should not be used as a judicial mine field,
                                                                                               8

       with disaster lurking at every step along the way. Id., 647.

       {¶ 15} Unlike in Dehart, the failure to comply with Mont.               D.R. Rule 4.42

prejudiced Kay’s ability to prepare a defense, and the failure is not a minor, technical,

inadvertent violation. Accordingly, vacation of the Magistrate’s Decision finding Kay in

contempt and dismissal of Aaron’s motion is not disproportionate to the nature of the

mistake.   Finally, the trial court’s decision does not frustrate the prevailing policy of

deciding cases on their merits, at the expense of fairness and justice; the trial court dismissed

Aaron’s motion without prejudice.

       {¶ 16} Aaron’s sole assigned error is overruled, and the judgment of the trial court

is affirmed.

                                          ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Cheryl R. Washington
Kay L. Helton
Hon. Denise L. Cross
