Dreisilker v. Carrelli

2016 Ohio 342

• Court: Ohio Court of Appeals
• Decided: February 1, 2016
• Docket: CA2015-06-052
• Status: Published

Opinion

[Cite as Dreisilker v. Carrelli, 2016-Ohio-342.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

MICHELLE DREISILKER, : CASE NO. CA2015-06-052 Plaintiff-Appellee, : OPINION : 2/1/2016 - vs - :

CHRISTOPHER CARRELLI, :

Defendant-Appellant. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 10-S03490

Michelle Dreisilker, 5251 Venetian Way, Morrow, Ohio 45152, plaintiff-appellee, pro se

Dever Law Firm, Scott Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069, for defendant-appellant, Christopher Carrelli

David P. Fornshell, Warren County Prosecuting Attorney, 520 Justice Drive, Lebanon, Ohio 45036, for Warren County CSEA

S. POWELL, P.J.

{¶ 1} Defendant-appellant, Christopher Carrelli, appeals from the decision of the

Warren County Court of Common Pleas, Juvenile Division, finding him in contempt for failing

to pay his court ordered child support obligations to plaintiff-appellee, Michelle Dreisilker. For

the reasons outlined below, this appeal is dismissed. Warren CA2015-06-052

{¶ 2} Carrelli and Dreisilker are the biological parents of L.D., born August 21, 2009.

On February 19, 2010, the trial court issued a child support order requiring Carrelli to pay

monthly child support to Dreisilker, as well as 53 percent of any additional uninsured medical

expenses above the first $100 that their son may incur. The trial court's child support order

also provided, in pertinent part:

The individual who is to be reimbursed for out-of-pocket medical * * * expenses paid for the parties' minor children is the person who incurred the expense. Absent unusual circumstances, or court order to the contrary, request for reimbursement of health care expenses should be made within 30 days of the date when payment is made or due. Reimbursement should be made with 30 days of the request.

{¶ 3} On September 12, 2013, Dreisilker filed a motion for contempt against Carrelli

alleging Carrelli had not paid his portion of their son's medical expenses. Thereafter, on

October 3, 2013, Dreisilker filed an amended motion for contempt and a motion to compel

discovery. A hearing on Dreisilker's motions was then held before a magistrate on December

9, 2013, during which the parties agreed that Carrelli would pay $400 to reimburse Dreisilker

for her attorney fees in exchange for her various motions being dismissed. The magistrate

accepted the parties' agreement and issued a decision on the matter later that day. Carrelli

subsequently mailed $399.76 in one dollar bills, quarters, and other change to Dreisilker.

{¶ 4} On May 5, 2014, Dreisilker filed a renewed motion for contempt alleging Carrelli

had still not paid his portion of their son's medical expenses, a motion she later amended on

June 4, 2014. A hearing was then held before a magistrate on October 28, 2014. At the

hearing, the magistrate heard testimony from both Dreisilker and Carrelli, which included

uncontroverted testimony that Carrelli had not paid his portion of their son's medical

expenses and that he now owed child support arrearages in the amount of $11,821.54.

{¶ 5} On November 6, 2014, the magistrate issued a decision finding Carrelli in

contempt for failing to pay his child support obligations. Carrelli then filed objections to the -2- Warren CA2015-06-052

magistrate's decision, which the trial court denied on February 18, 2015. In so holding, the

trial court found Carrelli had not made a timely child support payment to Dreisilker in over a

year. In addition, as it relates to Carrelli's failure to pay his portion of his son's medical

expenses, the trial court found:

Since [Carrelli] received [L.D.'s] medical bills he has been given ample time to reimburse [Dreisilker] but he has chosen not to. Instead, [Carrelli] alleges that [Dreisilker] never provided him with the actual bills. [Carrelli] also claims he should not have to pay because [Dreisilker] did not request reimbursement in a timely manner.

While the Court recognizes that not all the bills were presented to [Carrelli] within thirty days of payment as the court order provides, nothing precludes the Court from finding [Carrelli] accountable for a portion of these expenses. [Dreisilker] is simply requesting that [Carrelli] assist in the paying for [their son's] routine medical costs that her insurance does not cover. Additionally, the Court finds that there were unusual circumstances that prevented [Dreisilker] from contacting [Carrelli]. The parties were eventually ordered to only communicate via Family Wizard, a program which facilities the exchange of information regarding the minor child. [Carrelli] failed to register for said program.

The trial court also found it clear that Carrelli's previous $400 payment to Dreisilker following

the December 9, 2013 motion hearing was for "attorney fees" and that the "record even

explains that [Carrelli] has outstanding medical expenses he owes [Dreisilker] that could be

the subject of future litigation."

{¶ 6} After finding Carrelli in contempt, the trial court recommended Carrelli be

sentenced to ten days in jail. The trial court further determined that Carrelli could purge the

contempt charge by (1) making all his child support payments in full and on time, (2) paying

an additional $1,000 towards his child support arrearages, and by (3) providing Dreisilker

with $1,210.62 to reimburse her for her attorney fees and his portion of their son's medical

expenses. A final sentencing and purge hearing was scheduled for May 28, 2015. However,

rather than filing a timely notice of appeal from the trial court's decision finding him in

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contempt, Carrelli appeared at the May 28, 2015 hearing and purged himself of the contempt

charge. The next day, May 29, 2015, Carrelli filed a notice of appeal from the trial court's

decision finding him in contempt, raising the following two assignments of error for review.

{¶ 7} Assignment of Error No. 1:

{¶ 8} IN A CHILD SUPPORT MATTER, THE TRIAL COURT ERRED IN ADOPTING

THE DECISION OF THE MAGISTRATE FINDING CLEAR AND CONVINCING EVIDENCE

TO HOLD FATHER IN CONTEMPT FOR NON-PAYMENT OF MEDICAL BILLS.

{¶ 9} Assignment of Error No. 2:

{¶ 10} IN A CHILD SUPPORT CONTEMPT MATTER, THE TRIAL COURT ERRED IN

FAILING TO CONSIDER THE CHANGE IN FINANCIAL CIRCUMSTANCES OF THE

FATHER.

{¶ 11} In his first assignment of error, Carrelli argues the trial court erred by finding

him in contempt for failing to pay his portion of his son's medical expenses. Carrelli also

argues the trial court erred by not providing him with a $400 credit on his son's medical

expenses he claims he already paid to Dreisilker following the December 9, 2013 motion

hearing. Thereafter, in his second assignment of error, Carrelli argues the trial court erred by

failing to consider his decreased income prior to finding him in contempt.

{¶ 12} "Disobedience to court orders may be punished by contempt." Cottrell v.

Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 11; R.C. 2705.02(A). To

support a contempt finding, the moving party must establish by clear and convincing

evidence that a valid court order exists, that the offending party had knowledge of the order,

and that the offending party violated such order. Hetterick v. Hetterick, 12th Dist. Brown No.

CA2012-02-002, 2013-Ohio-15, ¶ 35. In reviewing a trial court's finding of contempt, an

appellate court will not reverse such a finding absent an abuse of discretion. Grow v. Grow,

12th Dist. Butler Nos. CA2010-08-209, CA2010-08-218, and CA2010-11-301, 2012-Ohio- -4- Warren CA2015-06-052

1680, ¶ 73. An abuse of discretion means more than an error of judgment; it implies that the

trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 13} At the outset, and in an effort to avoid any future confusion as to the proper

time to file an appeal from a trial court's contempt order, we note that "a court order finding a

party in contempt and imposing a sentence conditioned on the failure to purge is a final,

appealable order on the issue of whether the party is in contempt of court." Docks Venture,

L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, ¶ 23. Pursuant

to App.R. 4(A), "a party who wishes to appeal from an order that is final upon its entry shall

file the notice of appeal required by App.R. 3 within 30 days of that entry." However, a

separate right of appeal may exist where a contemnor wishes to challenge "whether the

purge conditions have been met following execution of sentence on the failure to purge."

Docks Venture.

{¶ 14} In this case, Carrelli was found in contempt on February 18, 2015. The trial

court imposed a conditional sentence and offered Carrelli an opportunity to purge the

contempt charge. A final, appealable order was therefore issued. Id. at ¶ 21-23. Carrelli

could have, and should have, appealed the February 18, 2015 order if he wished to

challenge the trial court's underlying finding of contempt. He did not do so. Rather, Carrelli

waited to appeal the finding of contempt until after the final purge hearing was held on May

28, 2015. Therefore, by failing to timely appeal from the trial court's February 18 entry

finding him in contempt, Carrelli "waived his right to dispute the propriety of the contempt

order, as well as the purge conditions ordered by the court." Bostick v. Bostick, 2d Dist.

Champaign No. 2014-CA-22, 2015-Ohio-455, ¶ 13.

{¶ 15} Moreover, as the record reveals, Carrelli complied with the trial court's purge

conditions and purged himself of the contempt charge. "An appeal from a finding of -5- Warren CA2015-06-052

contempt becomes moot when the offender either purges himself of the contempt or serves

the sentence." Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-

782, ¶ 21; Columbus v. Cicero, 10th Dist. Franklin No. 12AP-407, 2013-Ohio-3010, ¶12;

Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 37; see also Docks

Venture, 2014-Ohio-4254 at ¶ 22 ("if Dashing Pacific had avoided the sanction by purging

the contempt, then it would have rendered its appeal moot"). Therefore, because Carrelli

complied with the trial court's purge conditions, thereby purging himself of the contempt

charge, we find this matter has also been rendered moot.

{¶ 16} Nevertheless, even if this matter was properly before this court, and should this

matter arise again, we would still find no merit to Carrelli's claims. For instance, Carrelli

argues the trial court erred by finding him in contempt for failing to pay his portion of his son's

medical expenses since Dreisilker never told him that any of his son's medical expenses had

become due. However, as the record reveals, Carrelli failed to pay any portion of his son's

medical expenses even after Dreisilker provided him with notice of those expenses,

something which the trial court found he had "ample time" to do.

{¶ 17} Furthermore, just like the trial court before us, we would find unusual

circumstances prevented Dreisilker from contacting Carrelli in order to request

reimbursement from him. This includes undisputed evidence that Carrelli never registered

for Family Wizard as specifically instructed by the trial court. As Dreisilker testified:

[DREISILKER'S TRIAL COUNSEL]: And there was an Order down that the only way for you to communicate [with Carrelli] was through the Family Wizard back in 2012, correct?

MS. DREISILKER.: Yes.

[DREISILKER'S TRIAL COUNSEL]: And he never signed up for the Family Wizard?

MS. DREISILKER: Right.

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[DREISILKER'S TRIAL COUNSEL]: And so you never had an opportunity to provide him with any medical bills?

MS. DREISILKER: Correct.

[DREISILKER'S TRIAL COUNSEL]: And that's how they were supposed to be exchanged?

MS. DREISILKER: Yes.

Therefore, Carrelli's first argument would lack merit.

{¶ 18} Next, as it relates to Carrelli's claim the trial court erred by not providing him

with a $400 credit on his son's medical expenses following the December 9, 2013 motion

hearing, the record plainly shows that the $400 payment made by Carrelli to Dreisilker was to

reimburse Dreisilker for her attorney fees. Again, just as the trial court found, this fact was

explained to Carrelli on the record at that hearing. Therefore, Carrelli's second argument

would also lack merit.

{¶ 19} Finally, Carrelli argues the trial court erred by failing to consider his decreased

income prior to finding him in contempt. However, except for his own bare assertion claiming

his income had "pretty much gone down the tubes," Carrelli did not provide the trial court

with any evidence that he was unable to obtain any additional employment in order to meet

his child support obligations, nor did he provide any other evidence indicating his inability to

pay. See Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, ¶ 22. In fact, when

specifically asked if he had sought other employment opportunities, Carrelli testified "Um,

no." As the trial court correctly found, "[d]ue process does not allow the Court to modify

[Carrelli's] child support order in a pending contempt or objection proceeding." Therefore,

Carrelli's final argument would likewise lack merit.

{¶ 20} Appeal dismissed.

RINGLAND and HENDRICKSON, JJ., concur.

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