[Cite as Carow v. Girton,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

COLLEEN CAROW (fka GIRTON), : : Plaintiff-Appellee, : Case No. 13CA13 : vs. : : DECISION AND JUDGMENT SAMUEL DAVID GIRTON, : ENTRY : Defendant-Appellant. : Released: 02/10/14 _____________________________________________________________ APPEARANCES:

Charles M. Elsea, Stebelton, Aranda & Snider, LPA, Lancaster, Ohio, for Appellant.

James D. Sillery, Mollica, Gall, Sloan & Sillery Co., L.P.A., Athens, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Samuel David Girton appeals from the judgment of the Athens

County Court of Common Pleas finding him in contempt of a prior agreed

entry dated June 11, 2012. On appeal, Appellant contends that 1) the trial

court, in its January 24, 2013, decision on motion on charges in contempt

and judgment entry, erred in its construction of the parties’ agreement as a

matter of law; and 2) the trial court abused its discretion in finding that an

agreement was reached between the parties with respect to extra-curricular

activities. In light of our finding that the trial court abused its discretion in Athens App. No. 13CA13 2

holding Appellant in contempt of the parties’ prior agreed entry, we sustain

Appellant’s assignments of error and reverse the decision of the trial court.

FACTS

{¶2} The parties were married on June 25, 1994, and both became

employed by Ohio University; Appellant, as an assistant professor, and

Appellee, as an administrator with the college of engineering. The marriage

began to deteriorate several years later and the parties filed for divorce in

early 2008. The divorce was final on October 24, 2008. At the time of their

divorce, the parties shared one minor child, E.G., age three at the time and

approximately age eight during the proceedings below. As part of the

divorce, the trial court issued a shared parenting order with respect to the

parties’ minor son.

{¶3} Several post decree motions have ensued since that time, leading

up to the present contempt motion currently being appealed. A review of the

record reveals that Appellee filed a motion in the Domestic Relations

Division of the Athens County Court of Common Pleas on October 4, 2011,

seeking orders on a multitude of issues, including “an order spelling out the

terms and conditions of the scheduling and attendance of [E.G.’s] functions

and extracurricular activities and summer camps[.]” An agreed entry was Athens App. No. 13CA13 3

subsequently filed on June 11, 2012, purporting to address and resolve all of

the issues contained in the October 4, 2011, motion.

{¶4} The agreed entry provided as follows in paragraph 2 with

respect to E.G.’s extracurricular activities, which is pertinent on appeal:

“Both parties may attend all of [E.G.’s] functions and

extracurricular activities.

The parties commit to working toward agreement on E.G.’s

extracurricular activities included but not limited to art, sports,

music and education. The parties shall equally share the costs

of all school fees and school related fees, tutoring and those

extracurricular activities upon which they agree that [E.G.] will

participate.

If there is not agreement, once per year each parent may have

[E.G.] participate in an extracurricular activity including, but

not limited to, art, sports, music and education for which that

parent shall pay the sole cost. Prior to enrolling [E.G.] in an

extracurricular activity, the enrolling parent will advise the

other parent, in writing, so that schedules can be coordinated.

Both parents will support [E.G.’s] participation and attendance

including transporting [E.G.] during his or her custodial time. Athens App. No. 13CA13 4

Each parent must advise the other, in writing, of the full

schedule of such activity.”

It is the alleged violation of this provision of the agreed entry which led

Appellee to file charges in contempt and a motion to show cause on October

12, 2012.

{¶5} Appellee’s contempt motion was a two branch motion, the first

branch of which is at issue herein. This branch argued that Appellant was in

contempt of the prior agreed entry by virtue of his refusal to allow E.G. to

participate in soccer and cub scouts during his custodial time unless

Appellee agreed, in writing, that she would not be attending those activities.

A show cause hearing was held on November 16, 2012, at which both

parties testified as to their interpretation of the agreed entry.

{¶6} The trial court issued a decision on motion on charges of

contempt and judgment entry on January 24, 2013, finding Appellant in

contempt of the agreed entry with respect to [E.G.’s] participation in

extracurricular activities. Thereafter, on February 20, 2013, a disposition

hearing was held. The trial court sentenced Appellant to ninety days in jail

and ordered Appellant to pay Appellee’s attorney fees. The trial court

further suspended Appellant’s jail sentence, providing Appellant purged his

contempt, which included refraining from any further contemptuous activity Athens App. No. 13CA13 5

during the next year. It is from this contempt finding and final disposition

which Appellant now brings his timely appeal, assigning the following

errors for our review.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT, IN ITS JANUARY 24, 2013 DECISION ON MOTION ON CHARGES IN CONTEMPT AND JUDGMENT ENTRY, ERRED IN ITS CONSTRUCTION OF THE PARTIES’ AGREEMENT OF JUNE 11, 2012 AS A MATTER OF LAW.

II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT AN AGREEMENT WAS REACHED BETWEEN THE PARTIES WITH RESPECT TO EXTRA-CURRICULAR ACTIVITIES. ”

LEGAL ANALYSIS

{¶7} Because the analysis of Appellant’s assignments of error is

interconnected, we address them together. These assignments of error

essentially argue that the trial court abused its discretion in interpreting the

language of the parties’ agreed entry with respect to their son’s participation

in extracurricular activities, and as such, erred in finding Appellant in

contempt of the prior order. Appellant seeks a determination that the

language of the agreed entry is unambiguous and that his actions do not

constitute contempt.

{¶8} Initially we note that “contempt of court” is the disobedience or

disregard of a court order or a command of judicial authority. E.g., Daniels Athens App. No. 13CA13 6

v. Adkins, 4th Dist. Ross No. 93CA1988,

(June 3, 1994);

Johnson v. Morris, 4th Dist. Ross No. 93CA1969,

(Dec.

13, 1993). It involves conduct that engenders disrespect for the

administration of justice or “which tends to embarrass, impede or obstruct a

court in the performance of its functions.” Denovchek v. Trumbull Cty. Bd.

of Commrs.,

,

(1988); quoting

Windham Bank v. Tomaszczyk,

,

, paragraph

one of the syllabus (1971). “[T]he law of contempt is intended to uphold

and ensure the effective administration of justice[,]” and “to secure the

dignity of the court and to affirm the supremacy of law.” Cramer v. Petrie,

,

(1994). A court “possesses both

inherent and statutory authority to compel compliance with its lawfully

issued orders.” State ex rel. Bitter v. Missig,

,

(1995); citing Cramer at 133-134 and R.C. 2705.02(A).

{¶9} A distinction exists between criminal and civil contempt. For

instance, criminal contempt proceedings “vindicate the authority of the legal

system and punish the party who offends the court.” McDonald v.

McDonald, 4th Dist. Highland No. 12CA1,

; citing

Scherer v. Scherer,

,

(3rd Dist.

1991); In re Skinner, 4th Dist. Adams No. 93CA547,

(Mar. Athens App. No. 13CA13 7

23, 1994). The sanction imposed for criminal contempt serves as a

punishment for the completed act of disobedience. E.g., Brown v. Executive

200, Inc.,

,

(1980).

{¶10} Civil contempt, which is at issue herein, exists when a party

fails to do something ordered by a court for the benefit of an opposing party.

; citing Pedone v. Pedone,

,

(8th Dist. 1983); Beach v. Beach,

,

(2nd Dist. 1955). The punishment is remedial, or

coercive, in civil contempt. State ex rel. Henneke v. Davis,

,

(1993). Stated another way, civil contempt is

intended to enforce compliance with a court's orders.

{¶11} The party seeking to enforce a court order must establish, by

clear and convincing evidence, both the existence of a court order as well as

the nonmoving party's noncompliance with the terms of the court order. Wolf

v. Wolf, 1st Dist. Hamilton No. C-090587,

, ¶ 4; Morford v.

Morford,

,

(4th Dist. 1993). The

burden then shifts to the defendant to establish any defense. Morford.

“ ‘Clear and convincing evidence is that measure or degree of

proof which is more than a “preponderance of the evidence,”

but not to the extent of such certainty as is required “beyond a Athens App. No. 13CA13 8

reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of fact a firm belief or conviction as to the

facts sought to be established.’ ” McDonald v.

; quoting Cross v. Ledford,

,

, paragraph three of the syllabus (1954).

{¶12} As such, even when the plaintiff bears the burden of proof by

“clear and convincing” evidence, this Court’s standard of review is

deferential in that the presence of “some competent, credible evidence”

requires us to affirm the trial court's judgment. State v. Miller, 4th Dist. Ross

No. 11CA3217,

; citing State v. Schiebel,

,

(1990). Further, “[t]his court reviews a finding

of civil contempt under the abuse of discretion standard.” Lindsey v.

Lindsey, 4th Dist. Scioto No. 06CA3113,

; citing State

ex rel. Celebrezze v. Gibbs,

,

(1991);

State ex rel. Ventrone v. Birkel,

,

(1981); McCleese v. Clemons, 4th Dist. Scioto No. 05CA3016, 2006-Ohio-

3011, ¶ 15.

{¶13} As indicated above, Appellant contends that the language of

the agreed entry at issue is unambiguous. Appellant further argues that the

agreed entry only required him to support the child in and transport the child Athens App. No. 13CA13 9

to extracurricular activities of which the parties agreed the child would

participate. Appellant contends there was no agreement reached with

respect to the child’s participation in soccer and cub scouts and, as such, he

was not in violation of the order for refusing to take the child to these

activities during his custodial time.

{¶14} Appellee contends, on the other hand, that the fact the child

had participated in these two activities for two years and would continue was

“inherent” in the agreed entry and that Appellant’s refusal to cooperate

unless Appellee agreed, in writing, not to attend these activities during

Appellant’s custodial time is a violation of the terms of the agreement,

which specifically provides that both parents may attend all of E.G.’s

functions and extracurricular activities. The trial court agreed with

Appellee’s interpretation of the agreement, finding Appellant’s actions to be

not only contemptuous and “contra to the letter and spirit of the parties’

agreement,” but also “selfish and not supportive of [E.G.’s] best interests.”

{¶15} “Where both parties agree on the terms of the Agreed entry in a

divorce action, we find that the Agreed Entry is essentially a contract

between the parties.” Oberst v. Oberst, 5th Dist. Fairfield No. 08-CA-34, ¶

59; citing Klug v. Klug, 2nd Dist. Montgomery No. 19369,

,

¶ 13; citing In Re Adams,

,

(1989). Athens App. No. 13CA13 10

As such, contract rules of interpretation apply.

As further noted in

Oberst at ¶ 60:

“A general rule of contract interpretation is that ‘if language in

the contract is ambiguous, the court should construe the

language against the drafting party.’

citing Central Realty

Co. v. Clutter (1980),

,

.

‘However, when interpreting a contract, the court must first

examine the plain language of the contract for evidence of the

parties' intent.’

citing Gottlieb & Sons, Inc. v. Hanover Ins.

Co. (April 21, 1994), Cuyahoga App. No. 64559. If the

contract language is ambiguous, then the court should consider

extrinsic evidence to determine the parties' intent and

ambiguities should be construed against the drafter.”

{¶16} Here, as the trial court indicated in its judgment entry, the

agreed entry was “was developed by the parties, a counselor, and possibly

their attorneys.” Thus, the parties are on even ground with respect to the

drafting of the agreement. Further, after reviewing the pertinent provisions

of the agreed entry, we find the language to be straightforward,

unambiguous, and in accordance with Appellant’s interpretation. Thus, Athens App. No. 13CA13 11

there is no need to consider extrinsic evidence to determine the parties’

intent.

{¶17} While the plain language of paragraph two of the agreed entry,

as set forth above, does provide that both parents may attend all of E.G.’s

extracurricular activities, it also provides that the parties must agree on those

extracurricular activities. The specific language of the entry states that the

parties “commit to working toward agreement” on extracurricular activities,

not that there had already been an agreement reached with respect to certain

activities such as soccer and cub scouts. In fact, the trial court’s finding that

“[s]eemingly, the parties agreed on a list of extracurricular activities * * *”

was not supported by competent, credible evidence and, as such, was in

error. This fact is confirmed by Appellee’s own testimony during the

contempt hearing. Appellee testified as follows on cross examination:

“Q. Ms. Carow, did Mr. Girton make offers to you regarding

the soccer, the Boy Scouts? Did he make offers to you

for a way that he would be comfortable with those events

happening?

A. Yes. Athens App. No. 13CA13 12

Q. And he offered that if you would agree not to attend that

he would be comfortable with them and he would take

him?

A. Yes.

Q. And you did not accept that offer.

A. No. I feel that that’s inappropriate.

Q. So you were unable to reach an agreement. He made an

offer, you declined it. So there was no agreement.

Correct?

A. Correct.

Q. You understand that the court order from June 11th says

that if you’re not able to reach an agreement then once

per calendar year each parent may choose an activity?

A. Yeah.

Q. And you chose piano?

A. Mm-hmm.”

{¶18} This fact the parties never reached agreement on a “list” of

activities is further confirmed by a motion for a nunc pro tunc entry filed by

Appellee herself after issuance of the court’s final decision. In that motion,

Appellee points out that the agreed entry at issue “does not contain a Athens App. No. 13CA13 13

provision that the parties have a ‘list’ of activities in which [E.G.] can

participate” and clarifies that the agreed entry “only speaks to the parties

working toward agreement.” The trial court, however, did not issue a nunc

pro tunc entry.

{¶19} As set forth above, the record indicates that when agreement

was not reached with respect to the child’s participation in soccer and cub

scouts, Appellee resorted to the provision contained in paragraph two of the

agreed entry which allowed her to choose a single activity for the child to

participate, and that was piano.1 There was no evidence that Appellant

failed or refused to take the child to this activity during his custodial time.

{¶20} This Court is well aware of the fact that the intention of the

agreed entry was likely not to permit Appellant to withhold agreement on a

particular extracurricular activity unless Appellee promised not to attend. In

making his agreement to the activity contingent on Appellee’s promise not

to attend, Appellant has found a way around the language of the agreed entry

without technically violating it. Although we agree with the trial court that

such conduct is contrary to the best interest of the child, unfortunately we

cannot find that it is a technical violation of the prior order of the court. As

1 We take this opportunity to note that while the parties could not jointly agree on soccer or Cub Scouts, Appellee could have chosen one of these as her sole activity, rather than piano, and Appellant would have been required, by the terms of the agreed entry, to support the child in that activity and transport him to the activity during his custodial time regardless of whether Appellee planned to attend or not. At this juncture, we encourage the parties to work together for the sake of E.G. Athens App. No. 13CA13 14

such, we must conclude that the trial court erred and abused it discretion in

finding Appellant in contempt. Accordingly, the decision of the trial court is

reversed.

JUDGMENT REVERSED. Athens App. No. 13CA13 15

Abele, P.J., concurring in judgment only with opinion:

{¶21} It is extremely unfortunate that the genesis of this most recent

controversy between the parties appears to be the appellant's desire to

prevent the appellee, his former spouse and the child's mother, from

attending their child's soccer games at a public park. However, after

perusing the voluminous history of this proceeding, my surprise is,

unfortunately, completely unwarranted. Nevertheless, appellant should be

reminded that plentiful Ohio case authority stands for the proposition that

one parent's actions that impede or deter the other parent's contact with their

child is generally viewed as being against the child's best interest and may

provide reason or justification to modify the amount of parenting time that a

parent may share with the child. Athens App. No. 13CA13 16

Harsha, J., concurring:

{¶22} I concur in judgment and opinion on the merit issues but write

to address our jurisdiction. I conclude the finding of contempt is a final

appealable order even though the post-judgment motion contained two

independent “branches” and the order on appeal addresses only one of them.

The finding of contempt is a final order under R.C. 2505.02(B)(2) as “[A]n

order that affects a substantial right made * * * in a summary application in

an action after judgment;” And it’s appealable by virtue of R.C. 2705.09,

which states, “The judgment and order * * * of contempt may be reviewed

on appeal. * * *.”

{¶23} Accordingly, I do not indulge in the presumption that the trial

court implicitly denied the remaining “branch” by virtue of its failure to rule

upon it. Such a conclusion would be appropriate if the motion had been

ancillary to a pending claim or cause of action that the court disposed of

without addressing the motion. The rule makes sense when applied to a

final judgment granting relief that is adverse to or inconsistent with the relief

sought in the ancillary motion. Here we deal with an independent post-

judgment motion that seeks two separate findings of contempt, i.e. a context

in which the presumption does not logically apply. If this were a post-

judgment motion for modification of both spousal and child support and the Athens App. No. 13CA13 17

trial court addressed only one in its order, would we be justified in applying

the presumption? I think not.

{¶24} So rather than apply the presumption, I simply conclude that

R.C. 2505.02(B)(2) and R.C. 2705.09 combine to provide for an immediate

appeal of a finding of contempt with one caveat, i.e. the order must also

impose a sanction for the contemptuous conduct. See Purdy v. Purdy, 4th

Dist. No. 12CA3490,

.

{¶25} Because R.C. 2505.02(B)(2) indicates the post-judgment order

is final, and R.C. 2705.09 declares that orders of contempt are appealable,

Civ.R. 54(B) does not come into play even though one “branch” of the

motion technically remains unresolved. See Painter & Pollis, Ohio

Appellate Practice, § 2:16 (Ed.2013-2014). Thus, I conclude we have

jurisdiction to address the merits of the appeal. Athens App. No. 13CA13 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED and that the Appellant recover of Appellee costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J.: Concurs in Judgment Only with Opinion. Harsha, J: Concurs with Concurring Opinion.

For the Court,

BY: ___________________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.