Harper v. Kandel

2020 Ohio 654

• Court: Ohio Court of Appeals
• Decided: February 21, 2020
• Docket: 2019 AP 05 0018
• Status: Published

Opinion

[Cite as Harper v. Kandel, 2020-Ohio-654.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANN HARPER JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2019 AP 05 0018 BRUCE KANDEL

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2008 TC 02 0095

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 21, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAUL HERVEY MICHAEL JOHNSON 4940 Munson Avenue, N.W. Johnson, Urban & Range Co., LPA Canton, Ohio 44718 P.O. Box 1007 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2019 AP 05 0018 2

Hoffman, P.J. {¶1} Defendant-appellant Bruce E. Kandel appeals the April 30, 2019 Judgment

Entry entered by the Tuscarawas County Court of Common Pleas, which imposed a

previously suspended 30 day jail sentence after he failed to purge his contempt. Plaintiff-

appellee is Anne M. Harper, fka Kandel.

STATEMENT OF THE FACTS AND CASE

{¶2} The parties were married on April 6, 2001. Twin daughters were born as

issue of the union on May 3, 2007. The twins were born prematurely and, as a result,

have experienced medical and developmental problems.

{¶3} Appellee filed a complaint for divorce on February 27, 2008. The parties

were divorced via Judgment Entry filed September 2, 2010. The trial court designated

Appellee as the residential parent of the parties’ children. Appellant appealed the trial

court’s decision relative to, inter alia, the designation of Appellee as the residential parent,

the division of property, and the characterization of certain property as marital property.

We affirmed the trial court’s judgment. Kandel v. Kandel, 5th Dist. Tusc. App. No.

10AP100039, 2011-Ohio- 3031.

{¶4} On July 3, 2017, Appellant filed a motion to modify custody and to appoint

a guardian ad litem. Appellee filed a response to Appellant’s motion on July 26, 2017.

Appellee’s response included a motion to stay the custody proceedings pending

Appellant’s compliance with previous court orders; a motion for attorney fees; and a

motion seeking an award of the tax dependency exemptions for the children. On July 31,

2017, Appellee filed a motion to show cause relative to Appellant’s failure to pay spousal

and child support, failure to pay attorney fees, and failure to pay 49% of the children’s

out-of-pocket medical expenses, specifically, orthodontic and dental. The trial court Tuscarawas County, Case No. 2019 AP 05 0018 3

scheduled a hearing on Appellant’s motion to modify custody for November 30, and

December 1, 2017.

{¶5} The magistrate conducted a hearing on Appellee’s July 31, 2017 motion to

show cause on September 27, 2017. On September 28, 2017, Appellant filed a motion

requesting the trial court order Appellee to be 100% responsible for all of the children’s

dental and orthodontic bills as Appellee failed to use an in-network provider despite the

availability of an in-network provider in Appellee’s geographic area. Via Magistrate’s

Decision filed October 27, 2017, the magistrate recommended Appellant be found in

contempt for failing to maintain support payments, for failing to make payment

arrangements for his portion (49%) of the children’s uninsured medical expenses for

orthodontic and dental treatment, and for failing to pay attorney fees as previously

ordered. The magistrate recommended Appellant be sentenced to 30 days in the

Tuscarawas County Justice Center, but the sentence be suspended upon Appellant’s

compliance with purge conditions. The magistrate also indicated counsel for Appellee

could file a motion for attorney fees relative to the cost of the prosecution of the motion to

show cause.

{¶6} Appellee filed a motion for attorney fees relative to the contempt finding on

November 6, 2017. Appellant filed a reply thereto on November 8, 2017. Appellant filed

objections to the magistrate’s decision on the same day. Via Judgment Entry filed

January 9, 2018, the trial court overruled Appellant’s objections, and approved and

adopted the magistrate’s decision as order of the court. Appellant did not appeal.

{¶7} Via Judgment Entry filed August 31, 2018, the trial court ordered Appellant

to pay $6000.00 in attorney fees to Appellee as ordered in its May 4, 2011 Judgment; Tuscarawas County, Case No. 2019 AP 05 0018 4

$3,000.00 as reimbursement for a deposit paid by Appellee to Northeast Ohio Behavioral

Health Ltd.; $2,000.00 retainer for the appearance of Dr. Robin Tener at the hearing

scheduled for October 10 through 12, 2018; all fees Appellee paid to the guardian ad

litem; and all guardian ad litem fees as of August 31, 2018. The trial court indicated

Appellant’s failure to pay the aforementioned fees by September 14, 2018, would result

in the dismissal of his July 3, 2017 motion which was scheduled for hearing commencing

on October 10, 2018.

{¶8} After Appellant failed to make the ordered payments by September 14,

2018, the trial court dismissed his July 3, 2017 motion via Judgment Entry filed September

18, 2018. On October 15, 2018, Appellee filed a motion to impose the previously

suspended 30 day jail sentence based upon Appellant’s failure to purge the contempt.

On November 1, 2018, Appellee filed a motion for order requiring Appellant pay spousal

support arrearages. The trial court conducted a hearing on the outstanding motions on

November 5, 2018, and February 1, 2019.

{¶9} Via Judgment Entry filed April 30, 2019, the trial court overruled Appellee’s

July 26, 2017 motion for attorney fees pursuant to R.C. 3105.73(B), but granted her

November 6, 2017 motion for attorney fees on the contempt finding as well as her June

27, 2018 motion for payment and reimbursement of fees and November 1, 2018 motion

for order requiring Appellant pay spousal support arrearages. The trial court also granted

Appellee’s October 15, 2018 motion to impose sentence, but suspended the sentence for

120 days in order to provide Appellant with a further opportunity to comply with the purge

conditions. In addition, the trial court overruled Appellant’s September 28, 2017 motion

requesting Appellee be responsible for 100% of the children’s dental and orthodontic Tuscarawas County, Case No. 2019 AP 05 0018 5

care, and ordered Appellant be responsible for 49% of the uninsured expenses. The trial

court also granted the guardian ad litem’s October 26, 2018 motion for approval of fees

and ordered Appellant to pay the balance of those fees.

{¶10} It is from this judgment entry Appellant appeals, raising the following

assignments of error:

I. THE TRIAL COURT COMMITTED ERROR IN ORDERING

BRUCE KANDEL AS PURGE TERMS FOR CONTEMPT OF COURT TO

PAY EXCESSIVE AMOUNTS WHICH WERE IMPOSSIBLE TO PAY

BASED UPON HIS CURRENT INCOME AND THE AMOUNT OF

REIMBURSEMENTS ORDERED.

II. THE TRIAL COURT COMMITTED ERROR BY ORDERING

DEFENDANT TO PAY 49% OF ORTHODONTIC EXPENSES INCURRED

BY PLAINTIFF FOR THE MINOR CHILDREN. WHEN SUCH CARE WAS

AVAILABLE THROUGH CARESOURCE AT NO COST. SUCH ORDER

WAS ARBITRARY, UNREASONABLE AND AN ABUSE OF DISCRETION.

I, II

{¶11} In his first assignment of error, Appellant maintains the trial court erred in

ordering purge conditions which were impossible for him to fulfill. In his second

assignment of error, Appellant contends the trial court erred and abused its discretion in

ordering him to pay 49% of the children’s orthodontic expenses when orthodontic Tuscarawas County, Case No. 2019 AP 05 0018 6

treatment was available through CareSource and the parties would have incurred no out-

of-pocket medical expenses.

{¶12} Before addressing the merits of Appellant’s assignments of error, we must

address the effects of his failure to appeal the trial court’s January 9, 2018 Judgment

Entry, which approved and adopted the magistrate’s October 27, 2017 decision.

{¶13} In her October 27, 2017 Decision, the magistrate recommended:

1. [Appellant] should be found in contempt for failing to maintain

support payments and for failing to make payment arrangements to pay the

uninsured medical expenses for the children and for failing to pay attorney

fees as previously ordered. He should be found to have the ability to make

payments. He should be sentenced to 30 days in the Tuscarawas County

Justice Center, all of which is suspended upon his compliance with purge

conditions.

2. As purge conditions, [Appellant] should make payments of at least

$100.00 per month towards his support arrears and should make immediate

payment arrangements for the uninsured medical bills for the children.1

3. As a further condition of purge, he should seek work in at least 30

places of business per month and provide written evidence of his work

seeking activities to counsel for [Appellee] at least monthly.

{¶14} October 27, 2017 Magistrate’s Decision at 4.

1Specifically, 49% of uninsured medical expenses for the children’s orthodontic and dental treatment. See, October 27, 2017 Magistrate’s Decision at 2-3. Tuscarawas County, Case No. 2019 AP 05 0018 7

{¶15} In its January 9, 2018 Judgment Entry, the trial court overruled Appellant’s

objections to the magistrate’s decision, and approved and adopted the findings of fact

and conclusions of law without modification.

{¶16} In Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d

107, 2014-Ohio-4254, 22 N.E.3d 1035, the Ohio Supreme Court held, “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 whether the party is in contempt of court.” Id. at

¶ 23. “[A] contemnor may have an additional appeal on the question whether the purge

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

However, the subsequent purge hearing is limited to evaluating whether the contemnor

complied with the purge conditions; the contempt finding and purge conditions are not at

issue at the purge hearing or the appeal therefrom. Id. at ¶ 20–23 (Emphasis added).

The question of contempt is decided at a contempt hearing, where an alleged contemnor

has the opportunity to defend against the contempt charges and otherwise object to or

appeal from a finding of contempt and any purge conditions. Liming v. Damos, 133 Ohio

St.3d 509, 2012-Ohio-4783, ¶ 20.

{¶17} In the instant action, the trial court approved and adopted the magistrate’s

October 27, 2017 decision, and found Appellant in contempt. The trial court imposed a

conditional sentence and provided Appellant with an opportunity to purge the contempt.

A final, appealable order was, therefore, issued. See, Docks Venture, supra at ¶ 21–23.

Appellant could have, and should have, appealed the January 9, 2018 Judgment Entry if

he wished to challenge the trial court's underlying finding of contempt and/or the purge

conditions. He did not do so. Rather, Appellant waited to appeal the appropriateness of Tuscarawas County, Case No. 2019 AP 05 0018 8

the purge conditions until after the trial court ruled on Appellee’s motion to impose the

suspended jail sentence. By failing to timely appeal from the trial court's January 9, 2018

Judgment Entry finding him in contempt, Appellant “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.

{¶18} At the November 5, 2018, and February 1, 2019 hearings, the trial court did

not conduct a new contempt proceeding, but rather concluded the original contempt

proceeding because its purpose was to determine whether Appellant had satisfied the

purge conditions. “If the conditions are unfulfilled, the court is entitled to enforce the

sentence already imposed, the sanction that could have been avoided by the contemnor's

compliance.” Liming v. Damos, supra. The jail sentence was not a new sentence or a new

punishment.

{¶19} Because Appellant did not file a timely appeal from the January 9, 2018

Judgment Entry, we find his attempt to collaterally attack the purge conditions following

the trial court’s ruling on Appellee’s motion to impose sentence is untimely and improper.

Likewise, Appellant cannot collaterally attack the trial court’s order requiring him to pay

49% of the uninsured orthodontic and dental expenses. Tuscarawas County, Case No. 2019 AP 05 0018 9

{¶20} Appellant's first and second assignments of error are overruled.

{¶21} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Hoffman, P.J. Gwin, J. and Wise, John, J. concur