[Cite as Vinson v. Vinson , 2021-Ohio-1055.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

KELLY VINSON Appellee

v. MICHAEL VINSON Appellant C.A. No. 29767

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2004-08-3062

DECISION AND JOURNAL ENTRY Dated: March 31, 2021

CALLAHAN, Presiding Judge. {¶1} Appellant, Michael Vinson, appeals an order of the Summit Count y Court of Common Pleas, Domestic Relations Division, that found him in co ntempt for failure to pay child support. This Court affirms.

I. {¶2} Michael and Kelly Vinson divorced in 2005. They had one minor child who was two years old at the time of the divorce. In connection with a shared parenting plan to which the parties agreed, the trial cour t ordered Mr. Vinson to pay $813. 17 per month in child support. On November 11, 2009, the trial court ordered Mr. Vinson to pay ch ild support in the amount of $650 per month, plus a two-percent pr ocessing fee, and ordered CSEA to collect $50 per month toward an existing arrearage. On March 7, 2016, CSEA moved to hold Mr . Vinson in contempt for failure to pay his child support obligation. The trial court found Mr. Vinson in contempt and, again, ordered him to pay $50 per month toward the arrearage. On Dece mber 22, 2016, the trial court2

journalized an order noting that Mr. Vinson had purged that con tempt. The trial court modified Mr. Vinson’s child support ob ligation to $514 per month on Marc h 30, 2017. {¶3} On January 9, 2019, CSEA filed anot her motion to hold Mr. Vinso n in contempt for failure to pay his child s upport obligation, alleging that he had accumulated an arrearage in the amount of $10,306.15. The proceedings were continued until Dec ember 17, 2019, when a hearing was held before the magistrate. Mr. Vinson failed to appear, a nd a capias for his arrest issued. The hearing was continued to January 21, 2020. Following that hearing, the magistrate found Mr. Vinson in contempt, noting that he had failed to pay his child support obligation of $514 per month, resulting in an arrearage, at the time of the hearing, in exces s of $16,000. The magistrate noted that Mr. Vinson stipulated to a finding of contempt and incorpo rated an agreement between CSEA and Mr. Vinson into the magistr ate’s decision. S pecifically, t he magistrate sentenced Mr. Vinson to twenty days in the Summit County Jail, suspended on the cond ition that he pay child support in the amount of $514 per month effective February 1, 2020. The m agistrate scheduled a purge hearing for August 11, 2020. The trial court adopted the magis trate’s decision contemporaneously pursuant to Civ.R. 53(D)(4)(e)(i). {¶4} Mr. Vinson filed an objection to the magistrate’s decision. Mr . Vinson also filed a motion to proceed in forma pauperi s. The trial court granted t he motion and appointed counsel to represent him. Mr. Vinson filed supplemental objections, argui ng that the magistrate incorrectly found that he stipulated to the finding of contempt, failed to provide him with notifications that comported with due process, and incorrectly concluded that cont empt had been established based on the evidence at the hearing. The trial court overruled Mr. Vinson’s objections. {¶5} Mr. Vinson filed this appeal. His three assignments of error a re rearranged for ease

of discussion.3

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT APPELLANT STIPULATED OR ADMITTED TO A FINDING OF CONTEMPT MADE AGAINST HIM. {¶6} Mr. Vinson’s first assignment of error is that the trial court erred by upholding the magistrate’s conclusion that Mr. Vinson stipulated to a finding of contempt. This Court does not

agree. {¶7} Contempt is established when the movant demonstrates the existe nce of “‘a valid court order, knowledge of the ord er by the defendant, and a vio lation of the order.’” Henry v. Henry , 9th Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 12, quoting State v. Komadina , 9th Dist. Lorain No. 03CA008325, 2004-Ohio-4962, ¶ 11. This Court review s a trial court’s finding of contempt for an abuse of discretion. Morrow v. Becker , 9th Dist. Medina No. 11CA0066-M, 2012- Ohio-3875, ¶ 47, citing Akin v. Akin , 9th Dist. Summit Nos. 25524, 25543, 2011-Ohio-2765, ¶ 44, citing Thomarios v. Thomarios , 9th Dist. Summit No. 14232, 1990 WL 1777, *2 (Jan. 10, 1990). An abuse of discretion is present when a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke , 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola , 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶

25. {¶8} The contempt proceedings in this case did not progress to a hea ring but were resolved by the parties during an in-court negotiation between Mr. Vinson and the CSEA representative. Near the conclu sion of the proceedings, the fo llowing exchange occurred: THE COURT: Knowing all that are you prepared to stipulate or a dmit to contempt today?4

MR. VINSON: I don’t really admit to contempt, but I will go al ong with the order as I’ve discussed. So if that means that you call it contempt, call it what you need to call it. Mr. Vinson now points to this ex change as evidence that he did not intend to enter into an agreement premised upon a findin g of contempt. This argument, however, disregards the balance of the parties’ nego tiations and the full r ecord of Mr. Vinson’ s interaction with t he trial court. {¶9} Mr. Vinson agreed with CSEA regarding the amount of child suppo rt that he owed, and he acknowledged on the recor d that CSEA’s description of hi s payment history was accurate. He specifically affirmed that he was not contesting those facts . Indeed, he did not contest them throughout the negotiations. Instead, Mr. Vinson appeared resi stant to the idea that his failure to make child support payments shoul d constitute contempt: he ques tioned the fairness of the underlying order and maintained t hat Ms. Vinson’s adherence to the parenting-time schedule should have had some bearing on his obligation to pay support. Mr. Vinson also questioned why jail time should be used as a san ction, questioning whether it benefitted anyone and characterizing the threat of jail time as “completely self defeating.” {¶10} Viewed in its context, Mr. Vinson’s statements did not indicate his unwillingness to resolve the contempt, but his ongoing disagreement with the process itself and his belief that his failure to comply with the support order was justified. The tr ial court did not abuse its discretion by overruling Mr. Vinson’s objec tion to the contempt finding on this basis. {¶11} Mr. Vinson’s first assign ment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS IN CONTEMPT OF COURT.5

{¶12} In his third assignment of error, Mr. Vinson argues that the tr ial court abused its discretion by finding that he wa s in contempt based on the evid ence in the record. As noted in this

Court’s discussion of Mr. Vinson’ s first assignment of error, t he contempt in this case did not proceed to a hearing but was resolved following negotiations be tween Mr. Vinson and CSEA in the presence of the trial court. Given this Court’s resolution of Mr. Vinson’s first assignment of error, his third assign ment of error is moot. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO DUE PROCESS WHEN IT FOUND HIM IN CONTEMPT OF COURT. {¶13} Mr. Vinson’s second assignment of error argues that the trial c ourt erred by finding him in contempt because the information provided to Mr. Vinson by the magistrate did not comport with the requirement s of due process. This Court does not agre e. {¶14} The threshold consideration with respect to Mr. Vinson’s due pr ocess argument is the nature of the contempt at issue in this case. Courts disti nguish between civil contempt and criminal contempt based upon the purpose to be served by the sa nction imposed. State ex rel. Corn

v. Russo , 90 Ohio St.3d 551, 554 (2001). See also Docks Venture, L. L.C. v. Dashing Pacific Group, Ltd. , 141 Ohio St.3d 107, 2014-Ohio-4254, ¶ 13-15. The purpose of civil contempt sanctions is “remedial or coercive,” and they “are often employ ed to compel obedience to a court

order.” Russo at 555, citing Shillitani v. United States , 384 U.S. 364, 370 (1966). Criminal contempt sanctions, on the othe r hand, are by nature punitive a nd are intended to vindicate the authority of the court. Russo at 555, citing Denovchek v. Bd. of Trumbull Cty. Commrs ., 36 Ohio St.3d 14, 16 (1988). “Thus, civil contempts are characterized as violations against the party for whose benefit the order was made, whereas criminal contempts ar e most often described as6

offenses against the dignit y or process of the court.” Russo at 555, citing State v. Kilbane , 61 Ohio St.2d 201, 204–205 (1980). {¶15} When a parent faces contempt proceedings arising from failure t o pay a child support obligation, the contempt is civil in nature if the sanc tion is meant to secure compliance with the support order by provi ding an opportunity to purge. See Morrow , 2012-Ohio-3875, at ¶ 48-49, citing Brown v. Executive 200, Inc. , 64 Ohio St.2d 250, 253-254 (1980). See generally Turner v. Rogers , 564 U.S. 431, 443 (2011) (“Civil contempt proceedings in chil d support cases constitute one part of a highly complex system designed to assu re a noncustodial parent’s regular payment of funds typically nece ssary for the support of his chi ldren.”). The Due Process Clause requires fewer procedural safegua rds in that context than in a criminal case. Turner at 442. {¶16} In a case of civil contempt, the accused is entitled only to th e due process guarantees afforded to parties in civil cases. Petersheim v. Petersheim , 9th Dist. Wayne No. 16AP0043, 2017- Ohio-8782, ¶ 13, quoting Doerfler v. Doerfler , 9th Dist. Wayne No. 06CA0021, 2006-Ohio-6960, ¶ 16. “[D]ue process requires a fundamentally fair proceeding[ .]” Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, ¶ 28. Consis tent with this requirem ent, R.C. 2705.03 provides that a charge of contempt “shall be filed with the clerk of the court, an entry thereof made upon the journal, and an opportunity given to the accused to be heard[.] ” See also R.C. 2705.031 (describing the notice required in a Title IV-D contempt action for failure to pay child support). In addition, R.C. 2705.05(A) provides that a hearing must be held during whi ch “the court shall investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge.” In othe r words, an individual accused of7

contempt must be provided with notice, an opportunity to be hea rd, and the opportunity to prepare

a defense. Askin v. Askin , 10th Dist. Franklin No. 13AP-404, 2013-Ohio-5606, ¶ 10. 1 {¶17} Mr. Vinson has not challenged the adequacy of his notice or arg ued that he was denied the opportunity to be heard and to prepare a defense. I nstead, he has argued that in addition to those guarantees, the trial court was obligated to conduct a colloquy with him that was akin to that required in a criminal case—namely, to inform him that he had the right to call witnesses and testify in his defense and that his ability to pay his child su pport obligation was a critical issue in the proceedings. With respect to the first two issues, this Co urt reiterates that the proceedings at issue involved civil, not criminal, contempt. See generally Doerfler at ¶ 18. As such, any additional due process requirements that may have attached to a criminal contempt proceeding were not required. See id. {¶18} Mr. Vinson’s remaining argument relates to his ability to pay. Because this case was not resolved solely by an a greement between the parties but rested upon the trial court’s ultimate contempt finding and sa nction, we cannot conclude that Mr. Vinson waived this argument. Nonetheless, this ar gument is also misplaced. In su pport of this argument, Mr. Vinson

directs this Court’s attention to the United States Supreme Cou rt’s decision in Turner for the propositions that the magistrate w as required to inform him tha t his ability to pay was a critical issue in the proceeding and to “ma ke an express finding that Mr . Vinson had the ability to pay.” {¶19} In Turner , the United States Supreme Court considered a narrow question: whether an indigent individual facing a charge of civil contempt for no npayment of child support was entitled to court-appointed counsel. Turner , 564 U.S. at 435. Recognizing that the case before it

1 These due process prot ections can be waived. See D. H. Overmeyer Co., Inc., of Ohio v. Frick Co. , 405 U.S. 174, 185 (1972). See generally State v. Payne , 114 Ohio St.3d 502, 2007- Ohio-4642, ¶ 23 (distinguishing waiver and forfeiture).8

involved civil, rather than cr iminal, contempt, the Court empha sized that the Sixth Amendment did not apply to civil cases and that the guarantee of due proc ess required fewer protections in that

context. Id . at 441-442. The Court held that the Due Process Clause of th e Fourteenth Amendment does not require the provision of counsel for indigent defendan ts in every case. Id . at 448. Instead, the Court reasoned, counsel need not be provided “where the opp osing parent or other custodian (to whom support funds are owed) i s not represented by counsel and the State provides alternative procedural safeguards equivalent to * * * adequate notice of th e importance of ability to pay, fair opportunity to present, and to dispute, relevant information, a nd court findings[].” Id . In other words, the Court concluded that w hen those safeguards are in pl ace, the requirements of due process do not require appointed counsel. {¶20} Mr. Vinson does not argue that th e trial court had an obligatio n to provide him with

counsel but failed to do so. T o the contrary, it is apparent f rom the record that the magistrate

informed Mr. Vinson that he did have the right to appointed c ounsel if he could not afford an attorney. Consequently, “the alte rnative procedural safeguards ” referenced in Turner did not come into play. See id. It is equally apparent from the record that, having been offere d counsel if he could not afford to obtain it, Mr. Vinson clearly and unequivoc ally expressed his intention to proceed pro se. In any event, this Court notes that the magist rate engaged in a thorough discussion of Mr. Vinson’s ability to pay during the proceedings, explaini ng the meaning of the phrase and how it might be proved and e mphasizing that by resolving the co ntempt, Mr. Vinson relinquished the opportunity to do so during a hearing. In the course of th e proceedings, Mr. Vinson also acknowledged that he had the ability to make the payments propo sed by CSEA during the purge period.9

{¶21} The trial court did not err by concluding that Mr. Vinson was a fforded due process in connection with his appearance before the magistrate. His s econd assignment of error is, therefore, overruled.

III. {¶22} Mr. Vinson’s first and second assignments of error are overrule d. His third assignment of error is moot. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT10

HENSAL, J. CONCURS.

CARR. J. CONCURRING IN JUDGMENT ONLY. {¶23} I concur in the judgment but woul d conclude that Mr. Vinson for feited the arguments set forth in his second assignment of error. Mr. Vin son stipulated to the contempt finding in this case. In essence, CSEA and Mr. Vinson negotiat ed a settlement agreement on the record so that Mr. Vinson would have more time to either purge the contempt or reduce the amount of time he would be in jail if he were not able to purge. As s uch, he cannot argue on appeal that his due process rights were viol ated or that the trial court di d not make a finding regarding his ability to pay.

APPEARANCES: NEIL P. AGARWAL, Attorney at Law, for Appellant. DAVID V. HITSMAN, Attorney at Law, for Appellee. KELLY VINSON, pro se, Appellee.