In re Mallory-Nichols
| Docket Number | 112746 |
| Decision Date | 02 November 2023 |
| Citation | 2023 Ohio 3982 |
| Parties | IN RE CONTEMPT OF CARL MALLORY-NICHOLS [Appeal by Carl Mallory-Nichols in the matter styled In Re M.S.] |
| Court | Ohio Court of Appeals |
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jake A. Elliott, Assistant Prosecuting Attorney, for appellant.
JOURNAL ENTRY AND OPINION
{¶1} Appellant-Carl Mallory-Nichols ("Mallory-Nichols") appeals the trial court's judgment finding him in contempt, raising the following single assignment of error for review:
Assignment of Error: The trial court erred in denying the motion to set aside the magistrate's order.
{¶ 2} For the reasons set forth below, we vacate the contempt finding and the fine.
{¶ 3} This appeal involves an underlying juvenile case where a magistrate found Cuyahoga County Division of Children and Family Services ("CCDCFS") case worker Mallory-Nichols in contempt of court for allowing Mother two unsupervised visits with the minor child, who was at a behavioral hospital in Youngstown, Ohio at the time.
{¶ 4} In September 2022, the magistrate in the juvenile case held a hearing upon the annual review of the child's temporary custody. The magistrate ordered that temporary custody was to continue "in effect until April 7, 2023." (Journal Entry, 09/15/22.) The magistrate also lifted the prior no-contact order and permitted Mother to "have supervised contact with the child" who was residing at a children's behavioral hospital in Youngstown, Ohio. (Journal Entry, 09/15/22.)
{¶5} In December 2022, the matter came before the magistrate on the child's attorney's motion to withdraw as counsel. Counsel requested to withdraw after learning that the court's orders were not being followed. At that attorney conference, the magistrate learned that Mother had two unsupervised visits with the child - one day pass for 8 hours and another pass for 12 hours. Mother's counsel indicated that he was aware of one of the visits but did not disclose the violation to the court, citing to attorney-client privilege. CCDCFS counsel acknowledged that he was aware of the visits but did not disclose the violation, opining that the behavioral hospital granted the visits. The magistrate found these visits to be a violation of a direct order of the court and set a hearing to show cause why Mother, Mallory-Nichols, or CCDCFS should not be held in direct contempt of court for violating the court's orders.
{¶ 6} At the hearing in January 2023, the testimony was undisputed that Mother and child had two unsupervised visits in late November 2022 and that Mallory-Nichols gave the go ahead to the hospital for those visits to occur. Charlene Milano ("Milano"), the residential unit director at the hospital, testified that on November 16, 2022, the hospital case manager emailed Mallory-Nichols after speaking with the therapist, who recommended the passes, and asked if there could be a six-hour pass for the weekend. The next day, Mallory-Nichols "responded that that was perfect." (01/17/23, tr. 14.) Then on November 18, 2022, Mallory-Nichols provided verbal consent to the second pass via Zoom. Milano further testified that on November 29, 2022, Mallory-Nichols contacted them, advising to not issue the day passes. Milano stated that the visits with Mother were "good for [the child]" and that the child was "more motivated] for treatment when she returned." (01/17/23, tr. 19.)
{¶ 7} Corey Carlo ("Carlo"), Mallory-Nichols's supervisor, testified that he became aware of the unsupervised visits on November 29, 2022. Carlo testified that he spoke to Mallory-Nichols after the error was discovered and learned that the visits were the result of "a less than thorough reading of a journal entry." (01/17/23, tr. 30.) He stated that "there was no intention to violate any type of Court orders." (01/17/23, tr. 30.) Carlo believed that "it was an oversight, * * * once all the parties were clear, the visits ceased, they stopped." (01/17/23, tr. 34.)
{¶ 8} Mallory-Nichols testified that he has been assigned to this case since May 2022 and was present for the September 2022 hearing. He testified that he authorized the visits and that he "made a mistake on [his] end of not having carefully read the journal entry from the Court." (01/17/23, tr. 37.) He learned that the visits should not have taken place when he was notified by CCDCFS counsel on November 29, 2022. Once he realized that he made a mistake, he notified the hospital case manager and the child's guardian ad litem of his mistake - he "had authorized a pass and that the visits were in fact supposed to be supervised and that moving forward all further visits needed to be supervised from then forward." (01/17/23, tr. 38.) When asked if he intended to violate the court's September 14, 2022 order, Mallory-Nichols stated, "Absolutely not." (01/17/23, tr. 38.)
{¶9} Mallory-Nichols further testified that he did recall the court lifting the no-contact order at the September 2022 hearing. Mallory-Nichols acknowledged that he understood that part of the court order, but did not read the whole sentence. He testified, (01/17/23, tr. 41-42.)
{¶10} After the hearing, the Mallory-Nichols submitted a post-hearing brief, arguing that the unsupervised visits were an oversight and he did not intend to violate the court's order. Once he realized this error, he notified the hospital and no further unsupervised visits occurred. Mallory-Nichols further argued that the sanction was criminal in nature. In March 2023, the magistrate found Mallory-Nichols in "[c]ivil indirect contempt" of the court's September 15, 2022 order, stating that Mallory-Nichols failed to show a "lack of knowledge of the order" because he was present at the hearing and received a copy of the order. The magistrate also found that Mallory-Nichols's testimony that he "got ahead of himself was contrary to his contention that he did not have knowledge of the supervision requirement. The magistrate sentenced Mallory-Nichols to a $50 fine that would be purged if Mallory-Nichols "adher[ed] to all court orders without violation in the instant case [with] a review to be held in six months to determine compliance." (Journal Entry, 03/08/23.)
{¶11} In response, Mallory-Nichols filed a motion to set aside the magistrate's order, arguing that the magistrate improperly found him in indirect civil contempt because the fine imposed constituted punishment for allowing the unsupervised visits to occur, which made the contempt finding criminal and not civil. The trial court denied Mallory-Nichols's motion, stating that the "[m]otion is not well taken." Mallory-Nichols now appeals the court's order.
{¶12} The question at the crux of this appeal is whether the magistrate's contempt finding was civil or criminal. Mallory-Nichols argument is three-fold. He argues that (1) the magistrate incorrectly characterized her contempt finding as an indirect civil contempt; (2) a purge condition regulating future conduct is defective as a matter of law; and (3) there was no evidence in the record to support a finding that he intended to violate the court's order.
{¶13} Generally when analyzing the propriety of a contempt proceedings, the contempt must be reviewed on two levels. State v. Kilbane, 61 Ohio St.2d 201, 203, 400 N.E.2d 386 (1980), citing Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 202, 299 N.E.2d 686 (1973). Id.; see also Cleveland v. Bright, 2020-Ohio-5180, 162 N.E.3d 153, ¶ 19 (8th Dist.), citing Kilbane.
{¶14} We begin our discussion with criminal and civil contempts. The Ohio Supreme Court has explained:
Although there has never been a clear line of demarcation between criminal and civil contempts, it is usually said that offenses against the dignity or process of the court are criminal contempts, whereas violations which are on their surface offenses against the party for whose benefit the order was made are civil contempts.
State v. Local Union 5760, United Steelworkers of Am., 172 Ohio St. 75, 82, 173 N.E.2d 331 (1961), overruled on other grounds, Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980), citing O'Brien v. People, ex rel, 216 Ill. 354, 368, 75 N.E. 108 (1905).
{¶15} "The distinction is usually based on the purpose to be served by the sanction." State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001), citing Dan D. Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 235 (1971). "Thus, in determining whether a contempt is civil or criminal, the pertinent test is 'what does the court primarily seek to accomplish by imposing sentence?'" Id. at 554-555, quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).
{¶16} Criminal contempt sentences are "punitive in nature and are designed to vindicate the authority of the court." Local Union at 82-83, citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); United States...
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