Strauss v. Strauss
Decision Date | 16 December 2010 |
Docket Number | No. 94129,94129 |
Citation | 2010 Ohio 6166 |
Parties | JULIE A. STRAUSS PLAINTIFF-APPELLEE v. MARC I. STRAUSS DEFENDANT-APPELLANT |
Court | Ohio Court of Appeals |
REVERSED, CONVICTION VACATED
ATTORNEYS FOR APPELLANT
Eric M. Levy
ATTORNEYS FOR APPELLEE
Joseph G. Stafford
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
MARK E. DOTTORE, RECEIVER
Richard A. Rabb
McCarthy, Lebit, Crystal & Liffman
GUARDIAN AD LITEM
John H. Lawson
{¶ 1} Appellant Marc I. Strauss ("Marc"), appeals the trial court's decision finding him guilty of criminal contempt of court. Having reviewed the arguments of the parties and the pertinent law, we hereby reverse the lower court and vacate the convictions.
{¶ 2} Marc and Julie Strauss ("Julie") were married on March 31, 2001. During the course of their marriage, the parties had a son, Parker, born October 13, 2002. On July 13, 2006, Julie filed a complaint for divorce with motion for restraining order attached. The trial court issued an ex parte order that restrained Marc from annoying, physically or mentally abusing, molesting, or harassing Julie in any manner. On August 14, 2006, Marc answered the complaint, counterclaimed for divorce, and sought various restraining orders against Julie. The trial court also granted the restraining orders Marc sought.
{¶ 3} Beginning in June 2007, and continuing through October 2009, Julie filed several motions to show cause why Marc should be held in contempt for disregarding the trial court's orders. Most pertinent to the instant appeal are the motions filed in July 2007. These generally involved Marc's alleged violations of parental rights regarding holidays and vacation schedule, harassment of Julie, such as appearing at her place of employment, and Marc's repeated failure to return the minor child to Julie in a timely manner.
{¶ 4} The trial court subsequently consolidated all the motions, and a hearing was conducted on October 20, 2009. After the hearing, the trial court issued a judgment entry, that stated in pertinent part as follows:
{¶ 5} The trial court sentenced Marc to concurrent prison terms of 30 days for each violation as detailed above, but suspended 25 days of each sentence. Thereafter, Marc filed a notice of appeal of the trial court's judgment finding him guilty of criminal contempt and also moved this court for a stay of execution of the trial court's order.
ASSIGNMENT OF ERRORS
{¶ 6} We will simultaneously address the first and second assigned errors because of their common basis in fact and law. The common thread running through both assigned errors is Marc's contention that the trial court erred in finding him guilty of criminal contempt.
{¶ 7} Generally, we will not reverse a trial court's decision in a contempt proceeding unless that court abused its discretion. Oak Hill Banks v. Ison, 4th Dist. No. 03CA5, 2003-Ohio-5547, citing State exrel. Ventrone v. Birkel (1981), 54 Ohio St.2d 461, 377 N.E.2d 780. An "abuse of discretion" connotes that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140; Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.
{¶ 8} Hueber v. Hueber, 12th Dist. Nos. CA2006-01-004, CA2006-02-019, CA2006-02-020, 2007-Ohio-913, ¶16, citing Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus.
{¶ 9} A court may find the offending party in contempt for either direct or indirect actions that constitute disobedience to an order. Pirtle v. Pirtle, 2nd Dist. No. 18613, 2001-Ohio-1539. While a direct contempt occurs within the court's presence or with the court's personal knowledge of facts relating to the act, indirect contempt is "misbehavior that occurs outside the actual or constructive presence of the court." Id. One accused of indirect contempt is entitled to a "hearing on the charge, at which the court must investigate the charge, hear any answer or testimony that the accused makes or offers, and then determine whether the accused is guilty." Id.
{¶ 10} Although punishment is inherent in contempt, courts will categorize the penalty as either civil or criminal based on the character and purpose of the punishment. In re J.M., 12th Dist. No. CA2008-01-004, 2008-Ohio-6763, citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416 N.E.2d 610. While criminal contempt is characterized by an unconditional prison sentence, civil contempt is marked by remedial or coercive punishment, doled out for the "benefit of the complainant." Id.
{¶ 11} Initially, we note that the trial court found Marc guilty of indirect criminal contempt. Because all the complained-of conduct occurred outside the actual presence of the court and was not something that the court knew of through its first-hand account, the contempt was indirect. The contempt was criminal in nature in that the prison sentence was imposed to operate as punishment for the completed acts of disobedience designed to vindicate the authority of the court. Brown, supra.
{¶ 12} In cases of criminal contempt, it must be shown that the contemptor intended to defy the court. In re Estate of Lanning, 7th Dist. No. 00 CA 110, 2003-Ohio-1438, citing Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio St.3d 121, 573 N.E.2d 98, paragraph two of the syllabus. In addition, the offending conduct must constitute an imminent threat to the administration of justice. Oakwood Village v. Brown, Cuyahoga App. Nos. 89135 and 89786, 2008-Ohio-3151, citing Cleveland v. Heben (1991), 74 Ohio App.3d 568, 599 N.E.2d 766.
{¶ 13} In the instant case, it is undisputed that Marc violated the trial court's order by engaging in conduct that formed the basis of the trial court's contempt findings. However, we conclude from our review of the record that it has not been proven beyond a reasonable doubt that in engaging in the complained-of conduct that Marc intended to defy or impugn the dignity so as to constitute indirect criminal contempt.
{¶ 14} At the hearing on the motion to show cause, after the trial court pronounced his findings of contempt, Marc stated in pertinent part as follows:
Tr. 163-164.
{¶ 15} As gleaned from the excerpt above, the findings of contempt involved conduct that occurred in 2006 and 2007. The hearing on Julie's consolidated motions to show cause was held in October 2009, approximately two to three years after the...
To continue reading
Request your trial