[Cite as Gibson v. Gibson,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: MARY GIBSON : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00186 JERRY GIBSON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 1994DR00254

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 19, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ALICIA BOYLE CRISTIN ROUSH P.O. Box 21337 Stark County Public Defender's Office Canton, OH 44701 200 W. Tuscarawas St., Ste. 200 Canton, OH 44702 [Cite as Gibson v. Gibson,

.]

Gwin, P.J.

{1} Defendant-appellant Jerry Gibson appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Stark County, Ohio, which found him in

contempt of court for failing to pay child support. Appellee is plaintiff Mary Gibson, and

plaintiff-intervenor is Stark County Child Support Enforcement Agency. Appellant

assigns two errors to the trial court:

{2} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION

TO DISMISS APPELLEE’S MOTION TO SHOW CAUSE BECAUSE APPELLANT’S

ARREARAGE WAS A CIVIL DEBT.

{3} “II. THE TRIAL COURT ERRED BY FINDING APPELLANT IN WILLFUL

CONTEMPT OF COURT BECAUSE APPELLANT HAD A VALID DEFENSE THAT HE

WAS UNAWARE THAT HE REMAINED UNDER A COURT ORDER TO PAY CHILD

SUPPORT AFTER 2007.”

{4} Contempt results when a party disregards or disobeys an order of judicial

authority. First Bank of Marietta v. Mascrete, Inc.,

,

(1998). Contempt of court may also involve an act or omission substantially

disrupting the judicial process in a particular case. In re Davis,

,

(1991). The law regarding contempt was created to uphold and

ensure the effective administration of justice, secure the dignity of the court, and affirm

the supremacy of law. Cramer v. Petrie,

,

, 1994–

Ohio–404.

{5} Courts may classify contempt as civil or criminal, depending upon the

character and purpose of the contempt sanctions. Civil contempt is remedial or coercive Stark County, Case No. 2011-CA-00186 3

in nature and will be imposed to benefit the complainant. Pugh v. Pugh,

,

(1984). The burden of proof for civil contempt is clear and

convincing evidence. By contrast, criminal contempt sanctions are not coercive, but

punitive in nature. State ex rel. Corn v. Russo,

, 555,

,

2001–Ohio–15. Criminal contempt is usually characterized by an unconditional prison

sentence, and the contemnor is not afforded an opportunity to purge the contempt.

Brown v. Executive 200,

,

(1980). The burden of

proof for criminal contempt is beyond a reasonable doubt.

.

{6} To show contempt, it is necessary to establish a valid court order,

knowledge of the order, and violation of it. Arthur Young & Co. v. Kelly (1990),

,

. “In civil contempt, intent to violate the order need not

be proved.”

However, intent to violate the order is an essential element of criminal

contempt. State v. Chavez–Juarez,

, 2009–Ohio–6130,

, appeal not allowed by

, 2010–Ohio–799,

. The intent required to prove criminal contempt may be reckless or indifferent

disregard of the trial court's order. See E. Cleveland v. Reed,

,

151–152,

(1977).

{7} A reviewing court applies an abuse of discretion standard to its review of

a trial court's decision in a contempt proceeding and, absent an abuse of discretion, we

must affirm. An abuse of discretion is more than an error of law or judgment but, rather,

entails an action of the trial court that is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore,

,

(1983). Stark County, Case No. 2011-CA-00186 4

{8} The order appealed from states appellant is in contempt for failure to pay

child support but does not set conditions by which appellant can purge. It appears on its

face to be a criminal contempt, but for the reasons that follow, it makes no practical

difference whether it is civil or criminal.

{9} The record indicates the parties were married in 1977, and produced two

children, both of whom are emancipated. The parties dissolved their marriage in 1994,

and appellant was ordered to pay child support in the amount of $606.31 per month for

two children. Appellant failed to pay the child support as ordered and stipulated to a

finding of contempt on June 9, 1999. The court sentenced him to 30 days in jail with 20

suspended.

{10} In 2007, CSEA filed a Motion to Impose, asserting 20 days of the prior

sentence had been stayed conditioned on appellant’s compliance with all orders of the

court. CSEA alleged appellant had failed to do so.

{11} At the April 18, 2007 hearing on the Motion to Impose, appellant

requested the court to reduce the arrearages to a lump sum. Appellant stated this would

be in the best interest of the children, one of whom had testified the children did not

wish to see their father jailed for nonsupport. Appellant argued if the court reduced the

judgment to a lump sum both CSEA and appellee would have avenues to execute the

judgment but could no longer have him jailed. CSEA responded:

I would um oppose any request for a judgment, Your Honor,

because then it takes it out of child support enforcement. And a

substantial portion of these monies are due the State of Ohio, which would

require us to put a judgment and monitor that judgment every five years. Stark County, Case No. 2011-CA-00186 5

And as evidenced by this case, we’re not doing our best on this case. So,

Your Honor, we ask that it not be reduced to judgment and if you feel

inclined to reduce it to a judgment, will you assess interest as required by

the Ohio Revised Code because that would be here. Thank you.

Transcript of the Hearing on April 18, 2007, at pages 38-39.

{12} On June 6, 2011, the court entered a judgment stating in its entirety:

The Deft. having been found guilty of contempt, is found to be in

arrears as of February 28, 2007 in the amount of $25,251.67. Judgment

is awarded to the plaintiff against the defendant in the amount of

$14,736.32 plus statutory interest. Judgment awarded to the State of

Ohio in the amount of $10,565.00 plus $950.35 processing fees together

with interest. Motion to impose sentence denied.

{13} The judgment does not include an order setting a repayment schedule,

with dates for periodic payments or for repayment of the arrearage in a lump sum

payment. The judgment does not impose any jail time.

{14} Appellant apparently made one payment thereafter, and CSEA filed a

show cause motion on September 27, 2011. Attached to appellee’s Motion to Show

Cause is an affidavit alleging appellant failed to pay court ordered support in the amount

of $306.00 per month and has accumulated an arrearage of $25,704.67. The motion

also alleged appellant had failed to comply with the court’s January 14, 2010 order to

seek work. It appears the $306 payment was ordered in 1999.

{15} Appellant moved the court to dismiss the show cause motion, arguing the

2007 judgment was a lump sum judgment and he could not be found in contempt and Stark County, Case No. 2011-CA-00186 6

jailed because of a civil debt. The magistrate to whom the matter was referred found the

mere addition of interest did not create a lump sum judgment and because the order did

not contain language expressly referring to a lump sum, the magistrate overruled

appellant’s motion to dismiss.

{16} At the objection hearing, CSEA conceded the judgment was a lump sum

but argued that did not make it a civil debt. CSEA argued reducing arrearages to a lump

sum does not change the character of a child support order, and a court can find a

defendant in contempt for failing to pay the arrearage. The court overruled the Motion to

Dismiss, and the matter was set for trial on the contempt.

{17} At the trial on the contempt charge, appellant testified he was not aware

that he had to continue efforts to make monthly payments on the arrearage after 2007.

CSEA argued the seek work order should have been sufficient to put appellant on

notice he still had to make payments. The court found appellant in contempt and

imposed a ninety day sentence, stayed pending appeal.

I & II

{18} In his first assignment of error appellant argues the court erred in finding

him in contempt because the arrearage on which the contempt is based is a lump sum

judgment rather than a continuing order of child support. In his second assignment of

error, appellant argues he was not in willful contempt of court because he was unaware

he remained under a court order to pay child support after 2007. These assignments of

error are interrelated and will be addressed together. Stark County, Case No. 2011-CA-00186 7

{19} Both parties cite us to the two leading cases from the Supreme Court:

Cramer v. Petrie,

,

,

, and Young v.

Young,

,

,

.

{20} In Cramer, supra, the Supreme Court reviewed a case different from the

one at bar. In Cramer, the obligor agreed to execute a wage assignment and pay child

support of twenty dollars per week, plus poundage. He failed to comply with the agreed

terms and the court found him in contempt. The obligor appealed, raising the issue of

whether the common pleas court had the authority to hold him in contempt after the

child was emancipated. He maintained his legal obligation to support the child ended

with the child’s emancipation.

{21} The Supreme Court found courts have inherent authority to compel

obedience to their lawfully issued orders. The court found more than the mere duty to

support was involved in the case. An independent interest was “the court’s strong

interest in seeing, as a general matter, that its orders are not disobeyed with impuny.”

Id. at 133.

{22} The Supreme Court went on to hold an obligation to pay child support is

not a debt. “An obligation to pay support arises by operation of law and is a personal

duty owed to the former spouse, the child, and society in general.” The Court found it

had consistently held support obligations are not debts in the ordinary sense of the

word. Id.

{23} We emphasize that in Cramer, the obligor was under a continuing order to

pay the arrearages in weekly installments of a set amount. Stark County, Case No. 2011-CA-00186 8

{24} In Young, the Supreme Court reversed a holding of the Second District

Court of Appeals which found a trial court lacked authority to use contempt to enforce

payment of lump sum judgment and to enforce child support arrearages due after the

children’s emancipation but not reduced to a lump sum. The Supreme Court reversed

Young on the authority of Cramer without elaborating.

{25} Subsequently, appellate courts have interpreted the Supreme Court’s

holdings in different ways. Appellee cites us to several appellate court cases including

Bacharowski v. Bacharowski, Eighth District No. 71164, 1997WL570952; Beckelhymer

v. Beckelhymer, Twelfth District No. CA91-02-012, 1991 WL254638; and Stychno v.

Stychno, Eleventh District No. 2008-T-0117,

. The above cases stand

for the proposition a trial court may enforce a child support order by finding an obligor in

contempt for failing to pay child support arrearages which had been reduced to a lump-

sum judgment.

{26} Appellant urges us to follow the case of Sizemore v. Sizemore, 12th Dist.

No. CA2009-04-045,

. In Sizemore, the Court of Appeals for Warren

County reviewed Cramer, supra, and Young, supra, and found Cramer did not address

a lump-sum judgment. The court also found because Young was based solely on the

authority of Cramer it was not instructive.

{27} The Sizemore court cited Robinson v. Robinson, 11th Dist. No. 94-L-088,

(August 16, 1996). The Robinson court found, and the Sizemore court

agreed, continuing orders to pay child support arrearages, which are not debts pursuant

to Cramer, are different from lump sum judgments which are civil debts, enforceable by

means of judgment liens but not contempt. The Sizemore court found if a judgment is Stark County, Case No. 2011-CA-00186 9

reduced to a lump sum, then it becomes a civil debt and imprisonment for a debt is

precluded under Section 15, Article 1 of the Ohio Constitution.

{28} We agree with the reasoning in Sizemore and Robinson. The cases cited

by appellee are easily distinguishable from the case at bar. In Bacharowski, supra,

appellant was ordered to pay $2,000.00 plus poundage monthly on the arrearages.

Bacharowski at page 7. In Beckelhymer, supra, the obligor was ordered to apply

proceeds from his pending personal injury case to the lump-sum arrearage. He failed to

do so. The court found the obligor in contempt of court for violating the restraining order

and using the proceeds from the lawsuit for other expenses. Beckelhymer at page 1. In

Stychno, supra, the obligor had agreed to make monthly payments on the arrearages,

which the court had on at least two occasions modified because of changes in the

obligor’s financial circumstances. Stychno, paragraphs 5 through 8. These cases all

had continuing orders to make payments on the arrearages, whereas in the case at bar

and in Sizemore and Robinson, there was none.

{29} The Sizemore court expresses the goal of preserving “the distinction

between continuing ‘orders’ to pay child support arrearages and those reduced to lump-

sum judgments.” Sizemore, supra, at paragraph 14, citing Peters v. Peters 115 Ohio

App.443, 447,

(1962). (“A judgment in Ohio * * * is the final

determination of the rights of the parties in [an] action. [By contrast] [a]n order of the

court is a direction by the court or judge made or entered in writing and not included in a

judgment”). Under this definition the orders in Bacharowski, Beckelhymer and Stychno

are not lump-sum judgments at all. Stark County, Case No. 2011-CA-00186 10

{30} It is this distinction between continuing orders and final judgments that

demonstrates the reason why courts cannot use contempt proceedings to enforce lump-

sum judgments. A true lump-sum judgment does not order an obligor to do anything. It

is well settled that a party cannot be found in contempt of court premised upon a failure

to obey an order of the court if the order is not clear, definite, and unambiguous. If the

order is subject to differing interpretations, a party cannot be found in contempt.

{31} In Marysville v. Wilson, 3d Dist. No. 14-94-8 (1994), the court reviewed a

situation where the court authorized a work release for a prisoner after he had served

three days in jail. The court found the sheriff in contempt of court when he did not

release the appellee to go to work.

{32} The court of appeals in Wilson found the commitment order did not direct

that the sheriff actually release the prisoner for work, but merely authorized him to do

so. The court noted the order did not state the hours the prisoner was to be released

from jail, nor give any indication of what action should be taken if, as the sheriff

suspected, the prisoner actually had no job. The prisoner had been working as a

construction laborer, and only worked when the weather was suitable. The court of

appeals found the court’s order did not indicate whether the sheriff was to release the

prisoner during inclement weather. The court of appeals reversed the finding of

contempt, concluding the court’s order left many pertinent issues unresolved.

at

pages 2-3.

{33} In the case at bar, the judgment entry did not direct appellant how he was

to pay the judgment. It provided no time limit for a lump-sum payment nor did it set up

periodic payments, the amount of the payment, and the date on which it was due. In Stark County, Case No. 2011-CA-00186 11

short, the judgment did not give appellant any information on how he was to comply with

the court’s order and what he should do to avoid more jail time.

{34} The lack of orders to the obligor also deprives this court of the ability to

make an effective appellate review of the court’s decision regarding compliance.

{35} In addition, in light of the representations made by both appellant’s

counsel and CSEA’s counsel at the April 1997 hearing, coupled with the court’s

subsequent judgment entry that did not set a repayment schedule or impose jail time, it

is clear where appellant got the idea he did not have to make further payments. Even if

we consider the contempt to be civil and apply the lower standard of proof, the record

simply does not demonstrate by clear and convincing evidence appellant had notice of

what he was obligated to do and therefore does not demonstrate he violated the court’s

order.

{36} We find the court erred in finding this lump sum judgment was enforceable

by contempt. The judgment of 2007 was a lump sum judgment that converted the child

support obligation to a civil debt, and the United States and Ohio Constitution preclude

debtor’s prison.

{37} The assignments of error are sustained. Stark County, Case No. 2011-CA-00186 12

{38} For the forgoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion.

By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS WSG:clw 0216 [Cite as Gibson v. Gibson,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MARY GIBSON : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JERRY GIBSON : : : Defendant-Appellant : CASE NO. 2011-CA-00186

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

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

reversed, and the cause is remanded to the court for further proceedings in accord with

law and consistent with this opinion. Costs to CSEA.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS