[Cite as Phillips v. Phillips,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

RENEE PHILLIPS NKA BLASHAK : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2014CA00090 : ANTHONY PHILLIPS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division Case No. 2001DR00753

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 8, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

TYRONE HAURITZ JOSEPH A. KACYON 101 Central Plaza South 2745 Nesbitt Ave. 500 Chase Tower Akron, OH 44319 Canton, OH 44702 Stark County, Case No. 2014CA00090 2

Delaney, J.

{¶1} Defendant-appellant Anthony Phillips (“Anthony”) appeals from the

May 2, 2014 Judgment Entry of the Stark County Court of Common Pleas,

Family Court Division. Plaintiff-appellee is Renee Phillips nka Blashak (“Renee”).

FACTS AND PROCEDURAL HISTORY

{¶2} Anthony and Renee divorced on April 3, 2002. One child was born

of their marriage: Conner Phillips, born on June 9, 1992.

{¶3} The parties’ Shared Parenting Plan states the following regarding

payment for Conner’s college expenses: “The parents agree to equally share the

cost of any college expenses for Conner including, but not limited to, college

tuition, books, and housing. The parties further agree to deposit $50 per month

into the American Tuition Trust Fund for Conner’s college education.”

{¶4} In January 1998, while still married, Renee opened an account with

the American Tuition Trust Fund. Conner is the named beneficiary. Automatic

payments of $41 per month were deducted from Renee’s pay and deposited into

the account.1 Anthony admittedly did not make any payments into the account.

The account was closed in February 2005 and rolled into a College Advantage

529 Savings Plan.

{¶5} Conner enrolled at Kent State University in fall 2010. Both parties

attended orientation and were told bills would be sent to students only via the

1 The payments deducted at the time were $41, instead of the court-ordered $50, because the American Tuition Trust was set up to allow parents to purchase college credit hours at the rate of $41/hour. Stark County, Case No. 2014CA00090 3

University’s “Flash” line. Parents could access the bills only with permission of

the student and would need a PIN number to do so.

{¶6} Fall 2010 expenses were covered by the amount in the tuition trust

fund. In spring 2011, Anthony paid $2397 toward school expenses and Renee

paid $7395. During the 2011-2012 school year, Renee paid $4706.80 and

Anthony paid zero. During the 2012-2013 school year, Renee paid $4880 and

Anthony paid zero. In addition to these amounts, Conner obtained student loans

and grants.

{¶7} Conner and Anthony argued in March 2012 with the end result that

Anthony said he would not pay toward Conner’s college expenses until Conner

apologized.

{¶8} Renee emailed Anthony and sent him a certified letter documenting

expenses paid as of March 4, 2013. Anthony responded he was not under any

obligation to pay toward the college expenses and would not do so.

{¶9} On October 1, 2013, Renee filed a Motion and Affidavit for

Contempt asserting Anthony was aware of the expenses from Fall 2010 through

Spring 2013 and failed to pay his 50-percent share. Renee stated she was owed

$7,292.40 “as of March 1, 2013 for expenses that she has paid on [Anthony’s]

behalf so that Conner can continue his education,” and Anthony owed

$10,043.00 representing 50 percent of the balance of Conner’s outstanding

student loans.

{¶10} Court-ordered meditation was terminated with no resolution of the

college-expenses issue. Stark County, Case No. 2014CA00090 4

{¶11} A trial before a magistrate was held on Renee’s motion for

contempt on February 27, 2014. On March 4, 2014, the magistrate issued a

Decision concluding Anthony was in contempt for failure to comply with the

shared parenting agreement regarding college expenses; he was ordered to pay

Renee the sum of $5,232.40 toward college expenses plus $1,096 in partial

attorney fees and costs. He was also ordered to pay Renee’s attorney $1,830 for

the remainder of the attorney fees.

{¶12} Anthony objected to the magistrate’s decision and a hearing was

scheduled for April 28, 2014. On May 2, 2014 the trial court entered a Judgment

Entry approving and adopting the magistrate’s decision.

{¶13} Anthony now appeals from the May 2, 2014 decision of the trial

court.

{¶14} Anthony raises nine assignments of error:

ASSIGNMENTS OF ERROR

{¶15} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY

FAILING TO REVIEW THE FACTS AND LAW FROM THE MAGISTRATE’S

DECISION DE NOVO.”

{¶16} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT

FOLLOWING THE PRECEDENT SENT (sic) BY HETTERICK V. HETTERICK,

(2013), WHICH REQUIRES NOTICE OF THE AMOUNTS DUE

AND TO WHOM THEY ARE TO BE PAID PRIOR TO AN ACTION FOR

CONTEMPT FOR NON-PAYMENT OF COLLEGE COSTS.” Stark County, Case No. 2014CA00090 5

{¶17} “III. THE TRIAL COURT ERRED BY CONCLUDING THAT MR.

PHILLIPS HAD ACCESS TO THE COLLEGE EXPENSES THROUGH

FLASHLINE WHERE THE EVIDENCE SHOWED THAT FLASHLINE COULD

HAVE ONLY SHOWED HIM AMOUNTS DUE FOR TUITION, NOT ANY

ACTUAL BILLS AND NOT ANY HOUSING COSTS.”

{¶18} “IV. THE TRIAL COURT ERRED BY CONCLUDING THAT MR.

PHILLIPS WAS AT FAULT FOR NOT OBTAINING THE BILLS FROM

CONNOR, THE PARTIES’ ADULT SON, WHERE THE UNCONTROVERTED

EVIDENCE SHOWED THAT MR. PHILLIPS REQUESTED THE BILLS BUT

THAT CONNOR FAILED TO PROVIDE THEM.”

{¶19} “V. THE TRIAL COURT ERRED BY CONCLUDING THAT A

LETTER FROM MS. BLASHAK, WHICH DID NOT INCLUDE ANY BILLS OR

RECEIPTS, WAS SUFFICIENT NOTICE TO MR. PHILLIPS OF HIS

OBLIGATION DESPITE THE SELF-SERVING ERRORS CONTAINED IN THAT

LETTER.”

{¶20} “VI. THE TRIAL COURT ERRED IN CONCLUDING THAT A

CHECK MR. PHILLIPS GAVE TO CONNOR FOR HIS HOUSING EXPENSES

SHOULD NOT BE CREDITED TO MR. PHILLIPS BECAUSE IT WAS NOT

GIVEN TO THE LANDLORD DIRECTLY, WHERE THE EVIDENCE SHOWED

THAT MR. PHILLIPS DID NOT KNOW WHO THE LANDLORD WAS DESPITE

REQUESTING A COPY OF THE LEASE FROM CONNOR AND MS.

BLASHAK.” Stark County, Case No. 2014CA00090 6

{¶21} “VII. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE

THAT MS. BLASHAK HAD GIVEN CONNOR MONEY WHICH SHE ADMITTED

WAS FOR PURPOSES OTHER THAN COLLEGE—INCLUDING FOOD,

PERSONAL ITEMS, FRATERNITY DUES, AND DANCE CLASSES.”

{¶22} “VIII. THE TRIAL COURT ERRED BY CONCLUDING THAT MS.

BLASHAK’S PAYMENT OF THOSE OUTSIDE ITEMS CONSTITUTED

EVIDENCE THAT MR. PHILLIPS’S $4,000.00 PAYMENT WAS FOR

SOMETHING OTHER THAN COLLEGE EXPENSES.”

{¶23} “IX. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE

CONCERNING THE AGREEMENT OF THE PARTIES CONCERNING THE TAX

EXEMPTION FOR CONNOR.”

ANALYSIS

I.

{¶24} In his first assignment of error, Anthony asserts the trial court erred

because its decision overruling his objection does not individually address each

of his eight objections. Anthony also infers the trial court applied the incorrect

standard of review. We disagree.

{¶25} The trial court is obliged to independently review the issues upon

objections to a magistrate’s ruling. Ohio Civ. R. 53(D)(4)(d) states in pertinent

part:

* * * *. In ruling on objections, the court shall undertake an

independent review as to the objected matters to ascertain

that the magistrate has properly determined the factual Stark County, Case No. 2014CA00090 7

issues and appropriately applied the law. Before so ruling,

the court may hear additional evidence but may refuse to do

so unless the objecting party demonstrates that the party

could not, with reasonable diligence, have produced that

evidence for consideration by the magistrate.

{¶26} The trial court does not sit in the position of a reviewing court when

reviewing the referee's report; rather, the trial court must conduct a de novo

review of the facts and conclusions contained in the report. Inman v. Inman,

,

(2nd Dist. 1995), citing DeSantis v.

Soller,

,

(10th Dist. 1990).

{¶27} Anthony does not point to any affirmative evidence in the record the

trial court did not apply the correct standard of review. “[W]hen independently

reviewing the magistrate's decision, and in the absence of an affirmative

demonstration the trial court applied an incorrect standard, given the presumption

[of] regularity, we presume the trial court applied the correct standard.” Rudduck

v. Rudduck, 5th Dist. Licking No. 98CA85, unreported,

, at *4

(Jun. 16, 1999). We note the trial court’s entry states in pertinent part, “The

Court, after having made on (sic) independent analysis of the facts and the

applicable law, hereby approves and adopts the magistrate’s decision and orders

it entered as a matter of record.” We therefore presume the trial court applied

the correct standard of review.

{¶28} We also presume the trial court overruled each of Anthony’s eight

objections despite its failure to set forth each objection individually in the entry. Stark County, Case No. 2014CA00090 8

Anthony argues the trial court should have addressed each in turn. While the

trial court never expressly addressed each and every objection, it is presumed

that the trial court, sub silentio, overruled the objections when it proceeded to

enter judgment disposing of the objections. Shaffer v. Shaffer,

,

(3rd Dist. 1996). “Where the court fails to rule

on an objection or motion, it will be presumed that the court overruled the

objection or motion.”

citing Solon v. Solon Baptist Temple, Inc.,

,

(8th Dist. 1982).

{¶29} Anthony’s first assignment of error is overruled.

II.

{¶30} In his second assignment of error, Anthony argues the trial court

erred in failing to follow the precedent of Hetterick v. Hetterick, 12th Dist. Brown

No. 2012-02-002,

. We disagree.

{¶31} First, we note the magistrate specifically found the instant case

distinguishable from Hetterick, to wit:

* * * *. In [Hetterick], the father was required to pay colleges

(sic) expenses for his daughters. One daughter initiated

student loans on her own behalf and was the only signator

(sic) on the loans. The court found that these student loans

constituted college expenses that the father was responsible

to pay, however the court did not find that his failure to pay

amounted to contempt of court. The father did not have any

knowledge of the loan amounts or lending institutions Stark County, Case No. 2014CA00090 9

involved, what payments were due or where to send the

payments. The court found that the father could not be held

in contempt of court because he was not presented with the

bills or given information necessary to pay them. However,

the court found that the father was in contempt of court for

failure to pay on another daughter’s student loan that was

co-signed by the mother. The facts demonstrated that the

father was aware of the loans, aware of the amounts due,

received several bills and had access to the loan

information. These two scenarios within the same case

highlight that the court’s focus should be on knowledge and

access to information. In this case, [Anthony] had

knowledge that Conner was utilizing Pell grants and

both subsidized and unsubsidized student loans to pay

for college. [Anthony] had access to tuition statements

by using the PIN number or by contacting Conner.

[Anthony] was aware that Conner was living in fraternity

housing and could obtain billing information from

Conner or from [Renee]. [Anthony] was not satisfied

with the outline of expenses sent to him by [Renee], yet

he knew he had to pay his share of the housing.

[Anthony] simply chose not to obtain the tuition or

housing details because he was angry with his son. Stark County, Case No. 2014CA00090 10

(Emphasis added.)

{¶32} As Renee points out, decisions of other appellate districts are not

controlling authority for this Court. While we are bound by decisions of the Ohio

Supreme Court, we are not bound by appellate decisions from other districts

although we afford those decisions due consideration and respect. Hogan v.

Hogan,

,

(8th Dist. 1972); see also, State

v. Thompson,

,

,

(8th

Dist.), at ¶ 13.

{¶33} That being said, we find Hetterick instructive regarding payment for

college expenses in the context of contempt, and we agree with the magistrate’s

analysis supra. Hetterick concluded the appellant was required to pay valid

college expenses but could not be held in contempt for failure to do so when he

was not presented the opportunity to pay the bills or given the requisite

information necessary to pay them. Hetterick v. Hetterick, 12th Dist. Brown

No.DRA 2005 0543,

. In the instant case, however, Anthony

could have obtained the necessary information and chose not to do so, leading

the trial court to find him in contempt.

{¶34} Our review of a trial court's contempt finding is abuse of discretion.

Snider v. Snider, 5th Dist. Fairfield No. 11–CA–58, 2013–Ohio–1168, ¶ 6, citing

State ex rel. Celebrezze v. Gibbs,

,

(1991). We

will not reverse a finding of contempt unless the trial court's decision was

unreasonable, arbitrary, or unconscionable. Snider at ¶ 6, citing Blakemore v.

Blakemore,

, 450 N .E.2d 1140 (1983). We look to the totality of Stark County, Case No. 2014CA00090 11

the circumstances in determining whether the trial court's decision constitutes an

abuse of discretion. Ryder v. Ryder, 5th Dist. Stark No. 2001 CA00190, 2002–

Ohio–765, *2, citing In re: Brumfield, 5th Dist. Stark No.1998CA00326,

unreported,

(Jun. 7, 1999). Our standard of review of a

contempt finding is “highly deferential.” See, In re Helfrich, 5th Dist. Licking No.

13CA20, 2014–Ohio–1933, ¶ 40, citing State ex rel. Cincinnati Enquirer v.

Hunter,

, 2013–Ohio–5614,

; Dobbins v.

Evans, 5th Dist. Stark No.2011 CA00171, 2012–Ohio–898, ¶ 12. We defer to the

trial court because the magistrate and trial court have heard the evidence and

are familiar with the terms of the parties' agreement.

{¶35} Our review of the record reveals the decision of the trial court,

incorporating that of the magistrate, is not unreasonable, arbitrary, or

unconscionable. We concur with the analysis of the court below; indeed, we are

foreclosed from any other result by Anthony’s admissions he refused to pay

toward the college expenses despite being provided with the amounts due as

discussed infra.

{¶36} We thus agree with the trial court’s position on the application of

Hetterick v. Hetterick and Anthony’s second assignment of error is overruled.

III., IV., V.

{¶37} Anthony’s third, fourth, and fifth assignments of error are related

and shall be considered together. Anthony asserts the evidence was insufficient

to establish he could have learned the amounts he owed for college expenses

and was at fault in failing to do so. We disagree. Stark County, Case No. 2014CA00090 12

{¶38} Ohio courts have defined contempt of court as “conduct which

brings the administration of justice into disrespect, or which tends to embarrass,

impede or obstruct a court in the performance of its functions.” Windham Bank v.

Tomaszczyk (1971),

,

, paragraph one of the

syllabus. As noted supra in our discussion of Anthony’s second assignment of

error, our standard of review regarding a finding of contempt is limited to a

determination of whether the trial court abused its discretion. Wadian v. Wadian,

5th Dist. Stark No.2007CA00125, 2008–Ohio–5009, ¶ 12, citing In re Mittas, 5th

Dist. Stark No.1994 CA 00053 (Aug. 6, 1994). In order to find an abuse of

discretion, the reviewing court must determine that the trial court’s decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore,

,

(1983).

{¶39} The burden of proof in a civil contempt action is proof by clear and

convincing evidence. Jarvis v. Bright, 5th Dist. Richland No. 07CA72, 2008–

Ohio–2974 at ¶ 19, citing Brown v. Executive 200, Inc.,

,

(1980). The determination of “clear and convincing evidence” is

within the discretion of the trier of fact. The trier of fact is in a far better position

to observe the witnesses' demeanor and weigh their credibility. See, e.g., Taralla

v. Taralla, 5th Dist. Tuscarawas No.2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,

citing State v. DeHass,

,

(1967).

{¶40} Upon review of the record, we find no abuse of discretion by the

trial court. The trial court’s findings are supported by clear and convincing Stark County, Case No. 2014CA00090 13

evidence. Anthony argues on one hand he was not sufficiently on notice of the

college expenses he was required to pay, yet argues Renee’s demand letter of

March 2013, which included a breakdown of expenses to that date, was

insufficient. Anthony wants to be excused for failing to inquire into the amounts

he admittedly knew he owed, but also asks to be excused from payment because

the expenses were not provided to him in a certain manner. Anthony knew

Conner was in college, accruing expenses; he had the same opportunity to

access the “Flash line” Renee had; and he admittedly refused to talk to his son to

get the information he needed to pay his share of the bills. Upon being contacted

by Renee, Anthony repeatedly disclaimed his obligation to pay half the expenses

in direct contravention of the court order. These facts support the finding of

contempt.

{¶41} In short, the findings of the trial court are supported by clear and

convincing evidence and the court’s finding of contempt is not unreasonable,

arbitrary, or unconscionable. Anthony’s third, fourth, and fifth assignments of

error are overruled.

VI., VIII.

{¶42} Anthony’s sixth and eighth assignments of error are related and will

be considered together. Anthony argues he should have been credited with

$4,000 for a check he gave to Connor and the check should have been credited

to him because the evidence does not support the check was for something other

than “college expenses.” We disagree. Stark County, Case No. 2014CA00090 14

{¶43} Anthony directly gave Conner a check for $4000 during the 2011-

2012 school year and testified the check was for “college expenses.” (T. 61).

College expenses include tuition, books, and housing. Tuition at that time was

covered by Conner’s grants and loans. Conner was living off-campus but

Anthony made no provision for the check to be directed to the landlord. We are

unable to conclude Anthony gave the check to Conner directly in fulfillment of his

obligations under the Shared Parenting Plan.

{¶44} We further note the trial court highlighted the fact that both parents

gave Conner money attributed to needs other than the “college expenses” which

did not result in credit toward either party’s obligations under the Shared

Parenting Plan. We again point out “[a]s a general rule, appellate courts review

the propriety of a trial court's determination in a domestic relations case for an

abuse of discretion.” Carter v. Carter, 9th Dist. Summit No. 25981, 2012-Ohio-

2475, ¶ 17, citing Saari v. Saari,

,

, 2011–

Ohio–4710, ¶ 8 (9th Dist.). “This is true because the domestic relations court, as

a court of equity, ‘must have discretion to do what is equitable upon the facts and

circumstances of each case.”

{¶45} We find the trial court did not abuse its discretion in concluding

Anthony should not be credited with $4000.

VII., IX.

{¶46} In his seventh and ninth assignments of error, Anthony argues the

trial court erred in entering certain evidence and in excluding other evidence. We

disagree. Stark County, Case No. 2014CA00090 15

{¶47} The admission or exclusion of relevant evidence is a matter left to

the sound discretion of the trial court. Absent an abuse of discretion resulting in

material prejudice, a reviewing court should be reluctant to interfere with a trial

court’s decision in this regard. State v. Hymore,

,

(1967).

{¶48} First, Anthony argues the trial court should not have used the

$5,490 Renee paid in checks she gave Conner for non-college related expenses

in weighing whether his $4000 check should be credited. We disagree. In light

of our analysis of the trial court’s treatment of Renee’s $5,490 in assignments of

error six and eight, supra, we find no abuse of discretion in the trial court’s

rationale here. The trial court did not make an evidentiary error; instead, it simply

described the equity of the outcome.

{¶49} Finally, Anthony argues the trial court failed to address the issue of

the tax exemption for Conner. We note, however, as did the trial court at the

objection hearing, Anthony did not proffer the evidence he argues here regarding

the tax exemption. He has therefore waived this argument on appeal.

{¶50} Anthony’s seventh and ninth assignments of error are overruled. Stark County, Case No. 2014CA00090 16

CONCLUSION

{¶51} The appellant’s nine assignments of error are overruled and the

judgment of the Stark County Court of Common Pleas, Family Court Division is

affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.