2017 All-Ohio Legal Forum. Video Replay Contempt in Domestic Relations Court

Transcription

1 2017 All-Ohio Legal Forum Video Replay Contempt in Domestic Relations Court 1.0 General CLE Hour August 23 August 25, 2017 Cleveland

2 Speaker Biographies Stephen W. Daulton Stephen W. Daulton & Associates LPA Columbus, Ohio Mr. Daulton received his BA from The University of Akron and his JD from The University of Akron School of Law. His professional memberships include the Ohio Association for Justice (Chair, Family Law Section), Columbus Bar Association, Ohio State Bar Association, and American Bar Association. Mr. Daulton has been in private practice since 1980, primarily practicing in the area of domestic relations. He is a frequent lecturer on domestic relations and professionalism.

3 Pitfalls and How to Avoid Reversal on Contempt: Techniques to Avoid Having to Use Contempt Stephen W. Daulton Stephen W. Daulton & Associates LPA Columbus, Ohio Table of Contents Categories of Contempt Defined... 1 Criminal Contempt... 1 Civil Contempt... 2 Direct Contempt... 2 Indirect Contempt Compared to Direct Contempt... 3 Criminal Direct... 4 Criminal Indirect... 4 Civil Indirect Contempt... 5 Civil Direct Contempt... 6 General Legal Environment of Contempt Cases... 6 Punishment and the Power Struggle between the Court and Legislature... 6 Rules of Evidence Does Not Apply in Direct Contempt... 8 Direct Contempt in Front of Magistrates and Ohio Civil Rule Right to Counsel... 9 Avoiding Direct Contempt Citations Through Ethics Violation Complaints... 9 Avoiding Direct Contempt with Sanction Through Attorney Fees Avoiding Reversals in Direct Contempt Cases Reasonableness of Punishment Direct Contempt, Be Prepared Keep Calm Keep a Cool Head Misunderstanding the Phrase "In the Presence of' in Direct Contempt Pitfalls and How to Avoid Reversal on Contempt i

4 Confusing Personal Affront with Obstruction of Administration of Justice Lawyers Are Allowed to Do Their Job Court Should Warn Participants with Clear Rules of Conduct Avoiding Reversals in Indirect Contempt Cases Indirect Contempt Notice Service and Summons Defenses Indirect Contempt Cases Inability Laches Emancipation Indirect Civil Contempt After Judgment Courts Holding Judgments Are Not Enforceable by Contempt Courts Holding Judgments Are Enforceable by Contempt Protection of the Children Court May Refuse to Find a Person Guilty of Contempt Even If the Facts Support Such Finding Court Must Make a Reasonable Purge Order Purge After filing Motion but Before Trial Prevents a Finding of Contempt Attorney Fees Modification of the Existing Order Appendix Attorney Fees Ethics and Professionalism Contempt ii Contempt in Domestic Relations Court

5 Pitfalls and How to Avoid Reversal on Contempt iii

6 Pitfalls and How to A void Reversal on Contempt Techniques to Avoid Having to Use Contempt "Since, however, the question seems to resolve itself into this, whether you shall bend to the law, or the law shall bend to you, it is our duty to determine that the former shall be the case." 1 A respected legal system is our vanguard against anarchy. It serves as the foundation of social order and the structure of our economy. Therefore, respect for judicial authority is necessary to our civilization. The primary purpose of contempt of court is preservation of judicial authority. Prosecution of contempt of court is not to vindicate an individual judge, but to safeguard the proper administration of justice. Categories of Contempt Defined The distinction between direct, indirect, civil and criminal contempt is important because these classifications affect important procedural and substantive rights. There are different standards of proof and different procedural rights with respect to notice and hearings. Many of the reversals in contempt cases occurred when the court was confused as to the specific type of contempt as supported by the facts, i.e. direct contempt, indirect contempt, criminal contempt or civil contempt. Criminal Contempt Criminal contempt proceedings vindicate the authority of the legal system and punish the party who offends the court. See Scherer v. Scherer (1991), 72 Ohio App.3d 211, 594 N.E.2d 150. A criminal contempt must be proven beyond a reasonable doubt. The punishment for criminal contempt is usually characterized by an unconditional jail sentence. Such 1 Chief Justice M'Kean of the Supreme Court of Pennsylvania responded to a defendant who refused to answer interrogatories (Respublica v. Oswald (1788), 1 U.S. (Dall.) 319,329, 1 L.Ed. 155, 160. Cited in Cramerv. Petrie 10 Ohio St. 3d 131; 1994 Ohio 404; 637 N.E.2d 882; 1994 Ohio LEXIS 1842) Pitfalls and How to Avoid Reversal on Contempt 1

7 imprisonment operates not as a remedy coercive in its nature, but as punishment for the completed act of disobedience and to vindicate the authority of the law and the court. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, d 446, 416 N.E.2d 610; James v. James 1999 Ohio App. LEXIS 1876 Civil Contempt Civil contempt occurs when a party fails to do something as ordered by the court in a civil action for the benefit of the opposing party. Sanctions in civil contempt are employed for two reasons: to coerce the offender into compliance with the court's order, and to compensate the losses sustained by the other party. Sha((er v. Shafer 1993 Ohio App. LEXIS 5955; James v. James 1999 Ohio App. LEXIS In fact the best way to classify a contempt action as civil or criminal is to focus on the remedy desired. In civil contempt actions the punishment is remedial or coercive in nature. In criminal contempt actions the punishment is purely punitive. See Stapleton v. Holstein 1998 Ohio App. LEXIS Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, d 446, 416 N.E.2d 610. Direct Contempt Direct contempt applies in situations where a lawyer or any other person present in or in the immediate vicinity of the courtroom or chambers acts or misbehaves so as to obstruct the process of the court. The statute governing direct contempt is Ohio Revised Code Section which provides: A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. In direct contempt, the court may summarily punish a party without a hearing or notice as long as the court informs then contemnor that he has been found in contempt. 2 Contempt in Domestic Relations Court

8 Indirect Contempt Compared to Direct Contempt Ohio Revised Code Section defines the behaviors that the court can punish through its contempt powers via indirect contempt. Ohio Revised Code Section governs the due process required for indirect contempt actions. By definition, indirect contempt is always committed outside the presence of the court. Therefore in indirect contempt, the court issues a citation which puts the offender on notice that there is reason to believe that he or she is in contempt of court. The order requires the offender to be present at a hearing on the matter and to show cause as to why that person should not be punished for contempt of court. Of course, the offender may offer a defense to the contempt at the subsequent hearing. Attorneys not appearing for hearings or appearing late therefor are examples of indirect, criminal contempt. Most often the contumacious act of indirect contempt is both harm to the opposing party and offense to the dignity of the court. Therefore the fundamental distinction between direct contempt and indirect contempt lies in the location of the act of contempt--whether it takes place within the presence of the judge, or elsewhere. The significance of the location is directly related to the issue of whether the judge has personal knowledge of the contumacious act. Of course direct and indirect contempt, whether criminal or civil can occur in every possible combination and permutation. Adding to the confusion is the very different procedural rules concerning burden of proof, standard of proof, and notice Figure I requirements. The law treats direct and indirect Pitfalls and How to Avoid Reversal on Contempt 3

9 contempt very differently. Because many direct contempts are filed in a fit of anger or frustration, often these contempts are reversed on the differing technical grounds for each classification. Therefore an example of each possible combination of direct and indirect, criminal and civil contempt will be provided. The dark shaded areas in Figure 1 show how civil contempt and criminal contempt can also be direct and indirect contempt. Criminal Direct Most direct criminal contempts are filed against overzealous attorneys trying to ignore the court's orders during a trial. Often these attorneys are ordered in chambers or admonished on the record to behave in a certain way. In a stubborn or perhaps obsessive mood, these attorneys disobey a direct order of the Court. This often results in a mistrial. In the case of In Re Kafantaris, 2009 Ohio 4814; 2009 Ohio App. LEXIS 4063 the Court, throughout the week-long trial, admonished the lawyer repeatedly about things such as asking irrelevant questions, making speeches and giving commentary, and moving at a very slow pace. The court warned Kafantaris that the failure to heed its warnings would result in a contempt finding against him. The court found him guilty of criminal direct contempt and sentenced him to 10 days on each count. Criminal Indirect In In Re: Paul Lee 1989 Ohio App. LEXIS 2344 an attorney failed to show up at a hearing. He did not call the court to inform the judge that he was scheduled to appear at the same time in another court. Most practitioners from time to time are faced with this problem. With proper communication, this problem is typically easily resolved. The trial court in Lee was upset that he was left in the dark about why Mr. Lee was not in his court room. The Court found 4 Contempt in Domestic Relations Court

10 the lawyer guilty of direct contempt. The Appellate Court held that the trial court lacked personal knowledge of the alleged act of contempt because the commission of the act occurred outside the physical presence of the court. Therefore, the alleged act was properly classified as indirect contempt. The Appeals Court further held that the finding of contempt and sentence was intended to be of a criminal character. The purpose ofthe contempt sanction against Mr. Lee was punitive for his past failure to timely appear before the court and was not meant to be coercive. The trial court was therefor reversed. Civil Indirect Contempt The chief distinction between direct contempt and indirect contempt is that indirect contempt occurs outside the presence of the court. The significance of the location is directly related to the issue is whether the judge has personal knowledge of the contumacious act. By far most indirect civil contempts involve enforcing orders of the court that benefit the moving party to the motion for contempt. An example of civil indirect contempt is illustrated by Sansom v. Sansom 2006 Ohio 3909; 2006 Ohio App. LEXIS 38690n May 17,2004. In this case, the husband filed a motion for contempt for non-payment of child support. The mother did not appear and a capias was issued. The mother was arrested and brought before the court. The court found the mother guilty of civil indirect contempt for failing to pay the child support. The magistrate imposed a 30-day jail sentence but suspended the sentence on the condition that defendant liquidate the$ 11, arrearage at the rate of$ per month plus processing charge. In addition, the Mother was found guilty of criminal indirect contempt for failure to appear and was sentenced to 25 days in jail. Thus, this is an example of indirect criminal and indirect civil contempt. The chief difference is that the civil contempt has a purge order and the criminal contempt sentence is absolute and unconditional and is merely punishment. Pitfalls and How to Avoid Reversal on Contempt 5

11 Civil Direct Contempt Direct contempt generally is a contumacious act primarily directed at the court rather than primarily the opposing party. Civil contempt is one in which the court imposes a remedial sanction until the contemnor purges himself by performing the act ordered by the court. The sanction may be immediate or deferred pending compliance. One purpose of civil direct contempt is remedial to coerce the contemnor to perform for the benefit of the opposing party. Although more rare, direct civil contempt usually involves individuals that disobey a direct order while in the presence of the court to divulge information or to perform an act that benefits the opposing party. Roberts v. Sheriff175 Ohio St. 123; 191 N.E.2d 816; 1963 Ohio LEXIS 573; 23 Ohio Op. 2d 410 illustrates direct civil contempt. In this case, the husband removed securities from his safe deposit box in violation of a restraining order. He then converted the securities into cash and deposited the cash proceeds in a bank or banks. Upon being questioned as a witness in open court, he refused to divulge the names and locations of the banks where such deposits were made. On August 13, 1962, after being ordered by the Court to divulge whereabouts of the funds, the Court found him in direct civil contempt of court and ordered him to jail until he divulged the whereabouts of the funds. The Supreme Court on July 3, 1963, held that this was a proper exercise of the Court's direct civil contempt powers. This case is direct contempt because of the husband refusal to comply with a legal direct order of the court and because the party was obstructing the business of the Court. With respect to direct civil contempt, the witness is being coerced to purge himself of contempt by answering the question propounded in open court. General Legal Environment of Contempt Cases Punishment and the Power Struggle between the Court and Legislature Although American courts possess the inherent constitutional common law power of 6 Contempt in Domestic Relations Court

12 contempt, the court's contempt power is derived from the common law. However, the legislature has enacted procedures and enhancements to the court's inherent power of contempt. The Supreme Court held in Cincinnati v. Cincinnati Dist. Council 51 (1973), 35 Ohio St.2d 197, , 299 N.E.2d 686 that in an effort to preserve judicial independence from the legislature, the legislature can prescribe procedure in contempt cases, However, the power to punish for contempt is inherent in the courts. The Cincinnati Court pronounced, "it is, however, highly doubtful that the General Assembly may properly limit the power of a court to punish for contempt. Although it is conceded that the General Assembly may prescribe procedure in indirect contempt cases, the power to punish for contempt has traditionally been regarded as inherent in the courts and not subject to legislative control." Id. Under such holding, courts have allowed greater jail sentences and greater fines than those mentioned in Ohio Revised Code Section See also, Byron v. Byron. loth Dist. No. 03AP-819, 2004 Ohio 2143; Caldwell v. Caldwell, 4th Dist. No. 02CA17, 2003 Ohio 1752; Latson v. Chrysler Corp. (June 14, 2000), 9th Dist. No ,2000 Ohio App. LEXIS Olivito. 7th Dist. No. 04-MA-42, at P If a trial court wishes to exceed the statutory maximum of Ohio Revised Code Section , the question will always remain unanswered as to whether an appellate court would reverse the trial court for sentencing more time than that provided in Ohio Revised Code Section Of course, the statute which appears to restrict the court's authority to punish for contempt is typically more than adequate in most situations. The relevant section Ohio Revised Code Section provides: (A) In all contempt proceedings, the court shall conduct a hearing. At the hearing, the court shall investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge. If the accused is found guilty, the court may impose any of the following penalties: Pitfalls and How to Avoid Reversal on Contempt 7

13 (I) For a first offense, a fine of not more than two hundred fifty dollars, a definite term of imprisonment of not more than thirty days in jail, or both; (2) For a second offense, a fine of not more than five hundred dollars, a definite term of imprisonment of not more than sixty days in jail, or both; (3) For a third or subsequent offense, a fine of not more than one thousand dollars, a definite term of imprisonment of not more than ninety days in jail, or both The tension between the appellate courts and the legislature leave trial courts in a dilemma. Entering a sentence greater than that enumerated in Ohio Revised Code could be reversed by the court of appeals as inappropriate. On the other hand, case law is clear that such sentences are authorized. Rules of Evidence Does Not Apply In Direct Contempt The rules of evidence do not apply in direct contempt cases. Ohio Rule of Evidence 101 states: *** (C) Exceptions. These rules (other than with respect to privileges) do not apply in the following situations:*** ( 4) Contempt. Contempt proceedings in which the court may act summarily. *** Direct Contempt In Front of Magistrates and Ohio Civil Rule 53 Ohio Civil Rule 53 places an extra layer of review when magistrates find individuals in direct contempt. The Rule says: *** Civ. R. 53(C)(2)(f) Imposing, subject to Civ. R. 53(D)(8), appropriate sanctions for civil or criminal contempt committed in the presence of the magistrate.*** Civ. R. 53(D)(8) Contempt in the presence of a magistrate. (a) Contempt order. Contempt sanctions under Civ. R. 53(C)(2)(/) may be imposed only by a written order that recites the facts and certifies that the magistrate saw or heard the conduct constituting contempt. (b) Filing and provision of copies of contempt order. A contempt order shall 8 Contempt in Domestic Relations Court

14 be filed and copies provided forthwith by the clerk to the appropriate judge of the court and to the subject of the order. (c) Review of contempt order by court; bail. The subject of a contempt order may by motion obtain immediate review by a judge. A judge or the magistrate entering the contempt order may set bail pending judicial review of the order.*** Right to Counsel The legislature in 1988, enacted Ohio Revised Code Section which requires the court to issue a notice in the summons that an accused is entitled to request counsel if he believes that he is indigent and cannot afford legal representation. This legislation put to rest a longstanding controversy concerning whether an accused contemnor in criminal and civil contempt cases has the due process right to counsel, including court-appointed counsel if indigent where incarceration is a possible sanction. This right to counsel has been further extended to the right to appellate counsel. Walters v. Walters 2004 Ohio 6456; 2004 Ohio App. LEXIS Avoiding Direct Contempt Citations Through Ethics Violation Complaints Most lawyers when faced with the choice between being found guilty of direct contempt and an ethics violation would gladly choose the direct contempt. Paying a fine and serving some jail time in a direct contempt is faster and cheaper than litigating with Disciplinary Counsel. Paying a fine of a few hundred dollars and spending some time in jail is much cheaper than maintaining fixed overhead in your office during a period of suspension. Even the cost of spending 30 days in jail is favorable compared to the cost of representation in front of the Disciplinary Board. Disciplinary reprimands are published on the Internet for the world to view. The more powerful deterrent to a practicing lawyer is the threat of a magistrate referring the matter to the Disciplinary Counsel. Additionally, another reason exists as to why a judge or magistrate may want to pursue an Pitfalls and How to Avoid Reversal on Contempt 9

15 ethical complaint over a direct contempt. The conduct described in Ohio Revised Code Section is more narrow than the various provisions of the Disciplinary Rules. Ohio Revised Code Section says: A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. Many direct contempts against attorneys are dismissed because the behavior may insult the judge, but the behavior does not obstruct the administration of justice. The direct contempt statute sets out a two-pronged test. First, the person must misbehave in a way that demeans or shows disrespect to the court. Second, this misbehavior must obstruct the administration of justice. Many times judges incensed at the lawyer's behavior and language rush to judgment while they are angry and feel insulted without considering whether the behavior obstructed the administration of justice. 1. In Thompson v. Thompson 2001 Ohio App. LEXIS 3666 the reviewing court found that while the actions and language used during the court recess may have been disrespectful to the magistrate, such actions did not rise to the level necessary to immediately imperil the wheels of justice. 2. In Re Rossman 82 Ohio App. 3d 730; 613 N.E.2d 241; 1992 Ohio App. LEXIS Displays of ill-mannered conduct are not summarily punishable under the law of direct contempt unless they pose an imminent threat to the administration of justice. 3. In In Re Little U.S. Supreme Court (1972) 404 U.S. 553, L. Ed. 2d 708, S. Ct. 659 the U. S. Supreme Court said quoting In Re McConnell 370 U.S "The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil the administration of justice. The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice." 10 Contempt in Domestic Relations Court

16 On the other hand, the Disciplinary Rules present a much larger target. The conduct proscribed in these rules is much broader in scope with regard to intended behavior and is designed to protect the dignity of the court. The rule does not mention the obstruction of justice. If the above cited direct contempts that were dismissed were prosecuted under Disciplinary Rule 3.5, the results probably would have been different. Disciplinary Rule 3.5 states: (a) A lawyer shall not do any of the following:*** (5) engage in conduct intended to disrupt a tribunal; ( 6) engage in undignified or discourteous conduct that is degrading to a tribunal. *** In the cases below these individual were found guilty of direct contempt. However, the court carefully observed that the behavior was also unethical under the former Disciplinary Rules. I. Cuyahoga County Bar Association v. Gonzalez. 89 Ohio St. 3d 470; 2000 Ohio 221; 733 N.E.2d 587; 2000 Ohio LEXIS 2006 During a heated discussion, respondent Gonzalez called respondent Stafford "a piece of shit," and Stafford responded by calling Gonzalez "a total asshole." Respondent Gonzalez and respondent Stafford publicly reprimanded. 2. The State of Ohio, v. Wilson et al.; Davis, appellant 30 Ohio St. 2d 312;285 N.E.2d 38;1972 Ohio LEXIS 428; 59 Ohio Op. 2d 379 Lawyer was ordered to sit down more than six times. This was a contempt but the court cited disciplinary rules. Below are factually similar cases where the behavior was dealt with as a disciplinary action instead of a contempt action and was upheld by the reviewing court. 1. Disciplinary Counsel v. Lodico. Ohio LEXIS 2062 Lawyer made inappropriate, loud, and rude statements that wrongly impugned the integrity of a prospective juror during voir dire. He was cautioned about his conduct in the courtroom early in the trial proceedings. He repeatedly ignored admonishments about sanctions for continued violations of Judge's orders. Rather than curtailing his misconduct, however, respondent continued his behavior, at one point throwing money and credit cards on Pitfalls and How to Avoid Reversal on Contempt 11

17 the bench in anticipation of a sanction and telling the judge, Go ahead and fine me. 2. Office of Disciplinary Counsel v. Gardner 99 Ohio St. 3d 416; 2003 Ohio 4048; 793 N.E.2d 425; 2003 Ohio LEXIS 2123 The lawyer stated that the panel had issued an opinion so "result driven" that 11 any fair-minded judge would have been 11 ashamed to attach his/her name to it. He then added that the panel did not give "a damn about how wrong, disingenuous, and biased its opinion is. Throughout the several pages that followed, respondent inveighed against the panel, contrasting it with 11 fair-minded Ohio appellate districts.. and stating that 11 no matter how bad the panel wants to skew or ignore the facts, 11 it could only conclude that his client had been improperly charged. He lamented that "honesty and truth were damned" in the panel's opinion and that the panel's "desire to be 'tough on crime had blinded it to basic law and fairness. 3. Bar Association of Greater Cleveland v. Milano 9 Ohio St. 3d 86; 459 N.E.2d 496; 1984 Ohio LEXIS 1011; 9 Ohio B. Rep.315 Lawyer said "I want to say a little more before you start with your show for your television." Lawyer said "Go and fuck yourself. It's going into the record." Court ordered one year suspension. 4. Office of Disciplinary Counsel v. Nicholson 80 Ohio St. 3d 275; 1997 Ohio 317; 685 N.E.2d 1234; 1997 Ohio LEXIS In this case Nicholson frequently argued about the court's rulings, always attempting to have the 11 last word"; he accused the judge of continually making an obscene gesture with his finger during respondent's presentations and questioning; and that Nicholson was disrespectful to the court and opposing counsel. He reportedly said in court that he would not let his client, go down the tubes because Prosecutor was scared, wimpy little girl lawyer, the prosecutor was female. The judge questioned the jury and found that none of them believed he was making an obscene gesture. The judge later removed Nicholson as defense counsel. The panel also found that Nicholson remains unwilling to discharge his professional duty of zealous representation without resort to arrogant, discourteous, and disrespectful behavior directed at those he apparently perceives, and certainly treats, as enemies in battle. Disciplinary Rule 3.1 prohibits a lawyer from arguing frivolous claims. The language of Rule 2.1 is almost identical to the definition of frivolous conduct as defined in Ohio Revised Code Section Disciplinary Rule 3.1 provides: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law and fact for doing so that is not 12 Contempt in Domestic Relations Court

18 frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. The Disciplinary Rules also addresses the obstruction of justice just as the direct contempt statute, Ohio Revised Code Disciplinary Rule 8.4 provides: *** It is professional misconduct for a lawyer to do any of the following: (d) engage in conduct that is prejudicial to the administration of justice;*** of justice. Lawyers have been disciplined for obstructing discovery and general obstruction 1. Disciplinary Counsel v. Stafford 128 Ohio St. 3d 446; 2011 Ohio 1484; 2011 Ohio LEXIS 803. Stafford obstructed discovery, displayed a pervasive lack of candor. The Court ordered 18-month suspension with six months stay. Avoiding Direct Contempt With Sanction Through Attorney Fees Another tool in the hands of the court to sanction bad behavior is the assessment of attorney fees. Generally, Ohio follows the so-called "American rule" that requires each party to pay their own attorney fees at the conclusion of the litigation. In effect this rule requires specific statutory authority to award attorney fees incurred during litigation. One exception to this rule is when a party acts in bad faith, vexatiously, wantonly and for oppressive reasons. However, attorney's fees can be awarded for frivolous conduct pursuant to Ohio Revised Section or in bad faith under Ohio Civil Rule 11 or a specific statutory provision such as in domestic relations cases under Ohio Revised Code Section Below are examples of attorney fees awarded under these exceptions to the "American" rule. 1. As to the exercise of the common law exception to the American rule, see In Lisath v. Cochran 1994 Ohio App. LEXIS 34 The court exercised its inherent Pitfalls and How to Avoid Reversal on Contempt 13

19 authority to award attorney fees because the court found that the offending party acted in bad faith, vexatiously, wantonly, and for oppressive reasons. See also Ginsburg v. Haddad 1995 Ohio App. LEXIS As to the use of Ohio Civil Rule 11 see Bruggman vs. Bruggman 2000 Ohio App. LEXIS In this case the attorney sent subpoena to opponent's paramour and his questions were not relevant to the issues at hand. Grounds were admitted to in the pleadings. No other relevant questions were asked. Court ordered $425 in attorney fees for violation of Ohio Civil Rule 11. The signature of the lawyer on the subpoena was an affirmation to the court that the pleading, motion, or paper is not a sham, vexatious, or frivolous. 3. Matyas vs Matyas 1985 Ohio App. LEXIS 5477 Persistent misconduct and lack of cooperation were responsible for the substantial legal fees associated with the instant divorce case. In essence, the trial court-ordered Matyas to pay the expenses which were the direct result of his own unjustifiable behavior. As such, this Court is unable to find an abuse of discretion in the determination by the trial court. This award was an award of spousal support under Ohio Revised Code Section Today it would have been attorney fees under Ohio Revised Code Section Avoiding Reversals in Direct Contempt Cases Reasonableness of Punishment Many cases are reversed because the sentence is too harsh. It is difficult to create a rule of thumb from the case law. Below are four trial court decisions which were reversed because the punishment was too severe. Perhaps the judges in these cases permitted their anger or frustration to cloud their judgment. Or perhaps the record was incomplete or tainted by comments made by the judge. When judges are under the influence of extreme emotions, mistakes are made. The following cases punishments were upheld as reasonable: 1. In Re Maloney and Gilbert 1993 Ohio App. LEXIS 5999 $1,000 Gilbert was sentenced to five days in jail. 2. In Re Contempt ofgonzo/ez 70 Ohio App. 3d 752; 591 N.E.2d 1371; 1990 Ohio App. LEXIS 5483 for ten days in the Cuyahoga County Jail and fined $ In Re Kafantaris 2009 Ohio Ohio App. LEXIS 4063 Court sentenced lawyer to ten days in jail on each contempt to be served consecutively affirmed 14 Contempt in Domestic Relations Court

20 4. Roberts v. Sheriff 175 Ohio St. 123; 191 N.E.2d 816; 1963 Ohio LEXIS 573; 23 Ohio Op. 2d 41 0 In this case an indeterminate sentence affirmed. The contemnor had served over a year in jail. The following cases were reversed as unreasonable sentences: 1. In Re Kemper 1994 Ohio App. LEXIS 619 victim relative yelled out in court and was found guilty sentenced to 30 days in jail. Appeals court reduced to two days in jail 2. Clevelandv. Heben 14 Ohio App. 3d 568; 599 N.E.2d 766; 1991 Ohio App. LEXIS 2790 Attorney claimed he was sick his doctor backed him up the fine of$ 250 was affirmed but reduced thirty days' imprisonment as excessive and unreasonable in light circumstances. 3. In Re 0/ivito 2005 Ohio 2701; 2005 Ohio App. LEXIS 2548 An attorney failed to appear for hearing and the trial judge found him in contempt. Olivito was sentenced to thirty days in jail. Court of appeals reversed said sentence was not supported by the record. Direct Contempt, Be Prepared Keep Calm Keep a Cool Head For both judges and magistrates the legislature has enacted guidelines concerning when direct contempt is indicated. Ohio Revised Code Section Describes summary punishment for contempt: A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. For such a short concise statement of law, these thirty-two words have generated thousands of words trying to interpret, distinguish and define this single sentence. For the most part, reversals occur because the judge or magistrate acted without any preparation or deliberation. In order to avoid this pitfall the judge or magistrate should prepare boilerplate orders for contempt. The Orders should recite the statutory elements, the required burden of proof, facts supporting the finding and the sentence. If these documents are prepared with a cool Pitfalls and How to Avoid Reversal on Contempt 15

21 and thoughtful head before they are needed, there is less likelihood for reversal. In addition orders should be prepared determining the amount of the supersedeas bond. In the alternative orders should be prepared in keeping with Ohio Revised Code Section This statute permits the substitution of a supersedeas bond with property deposited at the clerks' office. Magistrates should discuss with judges the behaviors that are believed to be direct contempt of court. Magistrates should prepare the necessary documents to comply with Ohio Civil Rule 53 with regard to direct contempts in the presence of the magistrate. Most reversals of direct contempt spring from an angry judge or magistrate that spontaneously and thoughtlessly fmds a person in contempt. Later the record and paperwork are legally justified in retrospect. Of course a reversal of the direct contempt finding causes even more disrespect for the process those persons that lacked respect in the first place. Order of direct contempt must itself contain a complete and clear statement of the facts upon which the conviction is based. Most summary contempt cases, primarily involving lawyers, are reversed, for failure of the trial court to fully, clearly and specifically enumerate the facts supporting the contempt in its judgment or order. The guilt of a person accused of contempt must be shown affirmatively in the record. In Re Lodico 2005 Ohio 172; 2005 Ohio App. LEXIS 165. The entry should also recite the standard of proof, beyond reasonable doubt for criminal contempt Brown v. Executive Ohio St. 2d 250; 416 N.E.2d 610; 1980 Ohio LEXIS 873; 18 Ohio Op. 3d 446. Misunderstanding the Phrase "In the Presence of' in Direct Contempt In In Matter of Phillip G Ohio App. LEXIS 2884 a juvenile flipped his mother "the bird" after hearing. The Court found him in direct contempt. The court of appeals indicated that the judge was not present and since the hearing was over, the incident did not result in an 16 Contempt in Domestic Relations Court

22 obstruction of the administration of justice. There are numerous cases involving lawyers for being late for hearings or not showing up at all. The judges that were reversed on these direct contempts had mistaken these cases as direct criminal contempt. They are in fact indirect criminal contempt. See In Re Paul Lee 1989 Ohio App. LEXIS 2344; In Re Olivito 2005 Ohio 2701; 2005 Ohio App. LEXIS Confusing Personal Affront witlt Obstruction of Administration of Justice In In Re Little, (1972) 404 U.S. 553, L. Ed. 2d 708, 711; 92 S. Ct. 659., the U.S. Supreme Court stated: The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice In general, when the alleged contemptuous conduct constitutes a personal affront to the judge, the judge should refer the contempt charge to another judge since the original judge's objectivity may be questioned. Lawyers Are Allowed To Do Their Job Lawyers are not obstructing justice by making a record and protecting the interests of their client. Lawyers act to make a record, and they object in order to protect the interests of the client. These acts alone may not alone form the basis for a contempt of court. Thompson v. Thompson 2001 Ohio App. LEXIS 3666; State v. Fortson 2002 Ohio 1; 2002 Ohio App. LEXIS 65 In Re Rossman 82 Ohio App. 3d 730; 613 N.E.2d 241; 1992 Ohio App. LEXIS 4355; State v. Conliff61 Ohio App. 2d 185; 401 N.E.2d 469; 1978 Ohio App. LEXIS 7673; 15 Ohio Op. 3d Pitfalls and How to Avoid Reversal on Contempt 17

23 309. In Re Contempt of Daniel Morris 110 Ohio App. 3d 475; 674 N.E.2d 761; 1996 Ohio App. LEXIS 1475 Court Should Warn Participants With Clear Rules of Conduct The court must make a record and use the court reporter in chambers and in open court to make a record of the contemptuous conduct. Without a record that supports the contempt finding the court of appeals will reverse. In many cases the judge makes a finding of contempt with no record or clear statements of the rules that were broken. See In Re Maloney and Gilbert 1993 Ohio App. LEXIS 5999 Camburn v. Camburn 2005 Ohio 6502; 2005 Ohio App. LEXIS Avoiding Reversals in Indirect Contempt Cases Indirect Contempt Notice Service and Summons A note of caution about notice on indirect contempts is necessary. In general indirect contempts under Ohio Revised Code Section require only actual notice and not formal service and summons. However, in child support, spousal support and visitation cases strict compliance with Ohio Revised Code Section is required. This statute requires that the special notice and summons be served. The following cases demonstrate this important distinction: 1. Rose V. Rose 1997 Ohio App. LEXIS 1235 Husband was not served with notice of the contempt proceeding. The contempt was for his failure to produce his tax returns. He claimed that services upon counsel is insufficient and that, absent direct service on him personally, the trial court lacked jurisdiction to find him in contempt. After successfully obtaining a continuance of the hearing, counsel appeared at the rescheduled hearing and admitted that husband was aware of the contempt hearing and that he had refused to submit his tax returns. Court held that husband received actual notice of the charge asserted against him and of the hearing on the matter. He had an opportunity to be heard and was represented by counsel. Due process and the statutory provisions of Ohio Revised Code Section require that an individual accused of indirect contempt be given adequate notice, time to prepare any defense and an opportunity to be heard. See also.cole v. Cole 2001 Ohio 2486; 2001 Ohio App. LEXIS Contempt in Domestic Relations Court

24 2. Wolfordv. Wolford2009 Ohio 5459; 2009 Ohio App. LEXIS Here, the trial court held the contempt hearing based on a motion and a notice of hearing served on father's attorney. Ohio Revised Code Section requires the court in spousal support, child support and visitation cases to issue a summons and order, and further requires that the summons shall include a series of cautionary statements explaining the accuseds rights. The statute prescribes a mandatory process to begin contempt proceedings on failure to pay child support, and a trial court's failure to follow this process deprives the accused of due process of law. Reversed. Defenses Indirect Contempt Cases Inability In a contempt proceeding for failure to pay court orders, the movant for contempt must establish by clear and convincing evidence that the obligor is in contempt for failure to pay support. Pugh v. Pugh (1984), 15 Ohio St. 3d 136,472 N.E.2d The burden then shifts to the obligor to establish inability to pay by a preponderance of the evidence. This shift is necessitated by the fact that the order in effect imparts a finding by the trial court that the obligor possesses the ability to pay. Rinehart v. Rinehart (1993), 87 Ohio App. 3d 325, 622 N.E.2d 359. The practical application of these principles requires that the movant prove that the order exists, the date it became effective, the substance of its terms, amount due and that the order was not followed. The burden of the "inability" defense falls upon the obligor and has been restricted to those instances in which the alleged contemnor is without fault in the creation of the circumstances that result in his or her inability to comply. See Brockmeier v. Brockmeier 91 Ohio App. 3d 689; 633 N.E.2d 584; 1993 Ohio App. LEXIS 5317; Faubel v. Faube/2006 Ohio 4679; 2006 Ohio App. LEXIS 4602; Neff v. Neff 1989 Ohio App. LEXIS 484. Cases demonstrating inability to comply are rare. In the case of Lawrence v. Lawrence 1993 Ohio App. LEXIS 2070 the court found that the obligor was not able to comply with the order and that his failure to comply was not wilful. Pitfalls and How to Avoid Reversal on Contempt 19

25 Laches Laches is an equitable defense based upon the principle that an unreasonably lengthy delay in seeking a remedy has materially prejudiced the person against whom the remedy is sought and, therefore, the contempt remedy should be denied. With respect to contempt actions for nonpayment of child support, it is virtually impossible to provide sufficient proof to establish the laches defense. This is d~e primarily to the court's long-standing position that any delay in enforcing court ordered child support is a benefit, rather than a detriment, to the obligor. The courts have been clear in stating that a child support obligor cannot be materially prejudiced by the delay in enforcing court ordered support because the obligor knew all along that the obligation existed and because he or she had the full use of the money during the time that the order wasn't being enforced. See Smith v. Smith (1959), 168 Ohio St. 447 and Crinion v. Bailey (1984) 15 Ohio St. 3d 33. Emancipation For years there was a split among the districts as to whether an obligation to pay child support after the emancipation of the child is a debt within the meaning of Section 15, Article I of the Ohio Constitution. Since Section 15 of Article I prohibits imprisoned for debt, the argument was that the court could not use it's contempt powers to enforce the obligation. This controversy was finally put to rest by the Supreme Court of Ohio in Cramer v. Petrie 10 Ohio St. 3d 131; 1994 Ohio 404; 637 N.E.2d 882; 1994 Ohio LEXIS The Cramer Court held that an obligation to pay child support arises by operation of law and is a personal duty owed to the former spouse, the child, and society in general. It does not arise out of any business transaction or contractual agreement, as does an ordinary debt. Thus, child support obligations of emancipated children are not debts in the ordinary sense of that word and under Section 15 of 20 Contempt in Domestic Relations Court

26 Article I of the Ohio Constitution. Indirect Civil Contempt After Judgment The issue of whether a court can enforce judgments through its contempt powers has its roots in the common law. In the common law a judgment was a legal remedy and contempt was an equitable remedy. In the common law, a litigant had to choose between an equitable remedy or the legal one. The distinction was more obvious when in the old English common law the courts of equity and law were in separate buildings and under the control of separate governments. Under this election of remedies theory, once a litigant certifies a lump sum judgment to the law court, his/her equitable remedies were abandoned. The U.S. Constitution has combined the courts of law and equity and therefore, in this country, the distinction between legal and equitable remedies has had less meaning. Recently, the courts have abandoned the concept of election between legal and equitable remedies. See Welch v. Welch 2006 Ohio 7013; 2006 Ohio App. LEXIS 6969 McKay v. McKay 2010 Ohio 3348; 2010 Ohio App. LEXIS The districts are split as to whether the court can imprison an obligor for a debt that has been reduced to a lump sum judgment. Courts Holding Judgments Are Not Enforceable by Contempt 1. Sizemore v. Sizemore 2010 Ohio 1525; 2010 Ohio App. LEXIS 1266 the Twelfth District Court of Appeals said that once child support arrearages have been reduced to a lump sum judgment, contempt has no place in enforcing the outstanding obligation. After a child has attained the age of majority and child-support money yet unpaid is reduced to a lump-sum judgment during a civil proceeding, the judgment becomes a debt, and imprisonment for that debt is precluded under Section 15, Article I of the Ohio Constitution. 2. Young v. Young the Second Appellate District 1994 Ohio App. LEXIS A lump sum judgment for arrearage is merely a civil judgment representing money owed to one parent by another, i.e., a debt, which is squarely within the contemplation of the constitutional prohibition against imprisonment for debt in a civil action. Hence, the trial court may not Pitfalls and How to Avoid Reversal on Contempt 21

27 compel payment of a lump sum judgment by use of its contempt power. Courts Holding Judgments Are Enforceable by Contempt The following courts held that the distinctions between legal and equitable remedies are an archaic tradition and have no place in modem jurisprudence. The following courts have refused to abide by the doctrine of election of remedies: 1. Miller v. Miller, 2001 Ohio App. LEXIS 2744 In this case, Mrs Miller unsuccessfully attempted to collect the property judgment by garnishment. Court said that she was not precluded from pursuing alternative remedies, including a contempt action. It is not an abuse its discretion to find Mr. Miller in contempt for his failure to pay the property judgment 2. Heller v. Heller, Eighth Appellate District 1978 Ohio App. LEXIS The court found the Father in contempt for nonpayment of the lump sum judgment, as well as for nonpayment of installments due. The mere fact that the Mother obtained a lump sum judgment on which she could execute but did not, does not preclude contempt proceedings for contempt under R.C for the appellant's disobedience of the lump sum judgment. Contempt is not exclusively a matter of disobeying an order of the court but also includes resistance to a judgment of the court. 3. Robinson v. Robinson, Eleventh Appellate District 1996 Ohio App. LEXIS 3481 avoided the issue since a portion of arrearage was not reduced to judgment so the contempt could apply to the arrearage not reduced to judgment. Protection of the children Lawyers often tell their clients that they are powerless when the courthouse is closed. Even when the clerk of courts is open for business and the judge and magistrate in his or her chambers, there are procedural, ethical and practical barriers to gaining access to the court when parenting time orders require an emergency modification. Clients expect answers and advice about the safety of their children notwithstanding these legal realities. Clients are always asking 22 Contempt in Domestic Relations Court

28 their lawyers for advice not to follow an order referencing some perceived or real present danger to the children. No matter the client's feelings, lawyers should never advise their client not to comply with a valid existing court order. In Shafer v. Shafer 1993 Ohio App. LEXIS 5955, the client felt that the present visitation order put his child in danger. The lawyer advised his client not to follow a visitation order. The court noted that the lawyers conduct was "very disturbing." The court noted that lawyers are officers of the court and, as such, should not be advising their clients that they are free to disregard a court order. The need to protect the children from harm may be a defense to contempt for failure to comply with an order for visitation. However, only the court can determine that the alleged contemnor's belief that the children were in danger was a reasonable belief. Following advice of a lawyer is not a defense to contempt. The test the courts employ is whether the parent's concern for the child's best interest was genuine. Parents that refuse to follow established court orders on their beliefs do so at their peril. Below are cases where the parent's refused to permit visitation arguing that the children's best interest were at stake and were nevertheless found guilty of contempt. 1. Bailey v. Bailey, 1994 Ohio App. LEXIS Father was ordered to attend counseling and was ordered parenting time. The father attended one session and requested parenting time. The mother believed that on session was not the intended condition precedent for parenting time to begin. She withheld parenting time. The court found her guilty of contempt. The court said, "We are not unsympathetic to the plight of parents who fear their children may be abused during visitation. Understandably, those parents want to take immediate action to ensure that the suspected abuse does not occur. Those parents, however, must go through the courts. A party is not permitted to defy a standing visitation order even on advice of counsel." 2. Stapleton v. Holstein, 1998 Ohio App. LEXIS 5971 Mother argued that because the visitation order is silent as to the mode of transporting the child from Texas to Ohio that refusing to send a six-year-old alone on a plane trip is a reasonable interpretation of the court's prior order. The Pitfalls and How to Avoid Reversal on Contempt 23

29 Court order that Mother prevent her current husband from interfering with the order is abuse of discretion. Although the Court understands that any parent who fears that harm will imminently come to his or her child will invariably take whatever action they feel is reasonably necessary to protect their offspring. However, if upon judicial review of that conduct a court finds it to be unreasonable and in violation of a prior court order, the parent risks subjecting him or herself to the contempt powers of the court. Thus, prior redress is always preferable. 3. Holm v. Smilowitz, 83 Ohio App. 3d 757; 615 N.E.2d 1047; 1992 Ohio App. LEXIS The mother violated visitation after her relocation court admitted that after move order was impractical. The fact that a judgment may appear impracticable, in retrospect, does not sanction a party's defiance_ of a standing visitation order. 4. Kurincic v. Alojzkurincic, 2000 Ohio App. LEXIS 674Before court order was issued there was an allegation of child abuse against father. Social worker testified that she advised mother and felt that it was in child's best interest to keep away from father because of allegations that father abused child. If a parent fears that a child may be abused during visitation, the parent should seek redress through the courts. If the parent denies visitation, he or she risks subjecting him or herself to the contempt powers of the court. The trial court may or may not find that the parent had a good faith belief that he or she was acting in the best interests of the child, and was justified in not following the trial court's order. The court upheld the contempt finding. 5. James v. James, 1999 Ohio App. LEXIS The trial court held Father (custodial parent) in contempt because he disregarded an existing court order by denying visitation even though abuse social worker advised him not to permit visitation during the abuse investigation. Father's intentions may have be laudable, good intentions do not negate the fact that he disregarded a court order by withholding visitation. Although elements of the sanction imposed were designed to coerce future compliance with the court's order, the primary emphasis of the contempt order was to punish Father for his past refusal to permit visitation. As such, the contempt proceeding was predominantly criminal in nature. Since the primary emphasis of the contempt order was to punishment for his past refusal to permit visitation. Therefore finding must be beyond reasonable doubt. Court May Refuse to Find a Person Guilty of Contempt Even if the Facts Support such Finding The court may refuse to find a party guilty of contempt even if the facts support such finding. Even when one party is definitively aggrieved by the disobedience, the court is not 24 Contempt in Domestic Relations Court