[Cite as Kennard v. Smith, 2024-Ohio-1683.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: TIFFANY KENNARD : Hon. W. Scott Gwin, P.J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellee : Hon. Andrew J. King, J. : -vs- : : Case No. 2023 CA 00127 JEROME SMITH : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2007JCV00554
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 2, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDON L. DICKERSON D. COLEMAN BOND Stark County C.S.E.A. 116 Cleveland Ave. N.W., Ste. 600 Box 21337 Suite 600 Canton, OH 44702 Canton, OH 44702 [Cite as Kennard v. Smith, 2024-Ohio-1683.]
Gwin, P.J.
{¶1} Appellant Jerome Smith appeals the August 30, 2023 judgment entry of the
Stark County Court of Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} On May 8, 2007, appellees Tiffany Kennard and the Stark County
Department of Job and Family Services (“SCDJFS”) filed a paternity complaint against
appellant. Appellant was ordered to pay child support of $50 per month, plus processing
fees, in a judgment entry dated August 13, 2007.
{¶3} SCDJFS filed a motion to show cause on October 22, 2010, stating
appellant failed to pay child support. After appellant was appointed counsel, he failed to
appear for the show cause hearing on March 3, 2011. The trial court issued a bench
warrant based upon appellant’s failure to appear.
{¶4} Appellant appeared before the trial court on June 1, 2011, after being
arrested pursuant the warrant. Appellant stipulated to the contempt. The trial court set
an imposition hearing for August 4, 2011. Appellant failed to appear for the imposition
hearing, and the trial court issued a bench warrant. Appellant voluntarily turned himself
in on August 16, 2011. The trial court cancelled the warrant and scheduled the imposition
hearing for October 27, 2011. On October 27, 2011, the trial court sentenced appellant
to twenty-five days in jail as a contempt sanction. Upon his release from jail, the trial court
ordered appellant to seek employment at twenty-five businesses per month.
{¶5} On January 11, 2023, appellee SCDJFS filed a motion for order to show
cause. The affidavit attached to the motion made by an agent for the Stark County Child
Support Enforcement Agency states appellant failed to pay child support as ordered by Stark County, Case No. 2023 CA 00127 3
the court in the amount of $61.20 per month, failed to seek work as ordered, and had a
total arrearage of $6,367.18 through December 31, 2022. The trial court issued a show
cause order setting a hearing for February 21, 2023. The court continued the hearing so
appellant could obtain counsel.
{¶6} The magistrate held a trial on the contempt motion on June 27, 2023.
{¶7} Penny Pelfrey (“Pelfrey”) is a fiscal supervisor at SCJFS. Pelfrey testified
the total arrearage through May 31, 2023 is $6,328.26, plus a processing fee of $222.92,
for a total of $6,551.18. She stated the original order of support in the case was $50.00
per month, effective on August 10, 2007. Appellant made no direct payments since the
establishment of the order in 2007. There were some involuntary intercept payments
made in 2020, 2021, 2022, and 2023 from unemployment pandemic assistance. Pelfrey
testified to the previous contempt finding in 2011.
{¶8} The magistrate found appellant in contempt and sentenced appellant to
sixty days in the Stark County Jail. The following purge conditions were issued: follow
court orders regarding child support payments, make monthly payments for twelve
months, seek work at fifteen places per month, keep a written record of his applications
for review, and apply at a temporary agency. Appellant did not object to the magistrate’s
decision. The magistrate set an imposition hearing for August 30, 2023.
{¶9} At the imposition hearing on August 30, 2023, counsel for appellant
requested that he be allowed to make small payments on a monthly basis. Counsel also
stated appellant was looking for work and had been applying for jobs, and was scheduled
to start school in the fall. Counsel requested the court set the matter for a review hearing
to determine if appellant obtained a job, started school, and made monthly payments. Stark County, Case No. 2023 CA 00127 4
The trial court sentenced appellant to thirty days in prison with an additional thirty days
suspended, and issued a judgment entry on August 30, 2023.
{¶10} Appellant appeals the August 30, 2023 judgment entry of the Stark County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED
THE THIRTY (30) DAY JAIL TERM AGAINST APPELLANT FOR THE CONTEMPT.”
I.
{¶12} In appellant’s assignment of error, he contends the trial court committed
error in imposing the jail term against appellant for contempt.
{¶13} An appeal from a finding of contempt becomes moot when an 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; Oyler v. Lancaster, 5th Dist. Stark
No. 2019CA00130, 2020-Ohio-758. In this case, the record reveals that appellant served
his thirty-day jail sentence. Accordingly, appellant’s assignment of error has been
rendered moot.
{¶14} Alternatively, even if appellant’s assignment of error was not moot, we find
the trial court did not abuse its discretion. The parties agree the contempt in this matter
is a civil contempt because the contempt was remedial and allowed appellant an
opportunity to purge the jail sentence. Gordon v. Gordon, 5th Dist. Delaware No. 23 CAF
08 00047, 2023-Ohio-4780.
{¶15} An appellate court’s standard of review of a trial court’s contempt finding is
abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62
(1991). In order to find an abuse of discretion, we must determine the trial court’s decision Stark County, Case No. 2023 CA 00127 5
was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶16} Appellant argues the trial court abused its discretion because the purge
condition of monthly payments was unreasonable and because appellant did not have
the means to make monthly payments due to not being employed. A trial court abuses
its discretion when it orders conditions for purging that are unreasonable or impossible
for the contemnor to meet. Protz v. Protz, 5th Dist. Stark No. 2009CA00270, 2010-Ohio-
2502.
{¶17} As to appellant’s first argument regarding monthly payments, this Court has
previously held that purge conditions that require a contemnor to pay an arrearage
pursuant to a payment schedule is proper and not an abuse of discretion. Mohler v.
Mohler, 5th Dist. Holmes No. 20CA0008, 2021-Ohio-175 (purge condition to make $400
monthly payments not an abuse of discretion); see also Vaughn v. Vaughn, 12th Dist.
Warren No. CA2021-08-078, 2022-Ohio-1805 (trial court did not abuse discretion by
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[Cite as Kennard v. Smith, 2024-Ohio-1683.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: TIFFANY KENNARD : Hon. W. Scott Gwin, P.J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellee : Hon. Andrew J. King, J. : -vs- : : Case No. 2023 CA 00127 JEROME SMITH : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2007JCV00554
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 2, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDON L. DICKERSON D. COLEMAN BOND Stark County C.S.E.A. 116 Cleveland Ave. N.W., Ste. 600 Box 21337 Suite 600 Canton, OH 44702 Canton, OH 44702 [Cite as Kennard v. Smith, 2024-Ohio-1683.]
Gwin, P.J.
{¶1} Appellant Jerome Smith appeals the August 30, 2023 judgment entry of the
Stark County Court of Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} On May 8, 2007, appellees Tiffany Kennard and the Stark County
Department of Job and Family Services (“SCDJFS”) filed a paternity complaint against
appellant. Appellant was ordered to pay child support of $50 per month, plus processing
fees, in a judgment entry dated August 13, 2007.
{¶3} SCDJFS filed a motion to show cause on October 22, 2010, stating
appellant failed to pay child support. After appellant was appointed counsel, he failed to
appear for the show cause hearing on March 3, 2011. The trial court issued a bench
warrant based upon appellant’s failure to appear.
{¶4} Appellant appeared before the trial court on June 1, 2011, after being
arrested pursuant the warrant. Appellant stipulated to the contempt. The trial court set
an imposition hearing for August 4, 2011. Appellant failed to appear for the imposition
hearing, and the trial court issued a bench warrant. Appellant voluntarily turned himself
in on August 16, 2011. The trial court cancelled the warrant and scheduled the imposition
hearing for October 27, 2011. On October 27, 2011, the trial court sentenced appellant
to twenty-five days in jail as a contempt sanction. Upon his release from jail, the trial court
ordered appellant to seek employment at twenty-five businesses per month.
{¶5} On January 11, 2023, appellee SCDJFS filed a motion for order to show
cause. The affidavit attached to the motion made by an agent for the Stark County Child
Support Enforcement Agency states appellant failed to pay child support as ordered by Stark County, Case No. 2023 CA 00127 3
the court in the amount of $61.20 per month, failed to seek work as ordered, and had a
total arrearage of $6,367.18 through December 31, 2022. The trial court issued a show
cause order setting a hearing for February 21, 2023. The court continued the hearing so
appellant could obtain counsel.
{¶6} The magistrate held a trial on the contempt motion on June 27, 2023.
{¶7} Penny Pelfrey (“Pelfrey”) is a fiscal supervisor at SCJFS. Pelfrey testified
the total arrearage through May 31, 2023 is $6,328.26, plus a processing fee of $222.92,
for a total of $6,551.18. She stated the original order of support in the case was $50.00
per month, effective on August 10, 2007. Appellant made no direct payments since the
establishment of the order in 2007. There were some involuntary intercept payments
made in 2020, 2021, 2022, and 2023 from unemployment pandemic assistance. Pelfrey
testified to the previous contempt finding in 2011.
{¶8} The magistrate found appellant in contempt and sentenced appellant to
sixty days in the Stark County Jail. The following purge conditions were issued: follow
court orders regarding child support payments, make monthly payments for twelve
months, seek work at fifteen places per month, keep a written record of his applications
for review, and apply at a temporary agency. Appellant did not object to the magistrate’s
decision. The magistrate set an imposition hearing for August 30, 2023.
{¶9} At the imposition hearing on August 30, 2023, counsel for appellant
requested that he be allowed to make small payments on a monthly basis. Counsel also
stated appellant was looking for work and had been applying for jobs, and was scheduled
to start school in the fall. Counsel requested the court set the matter for a review hearing
to determine if appellant obtained a job, started school, and made monthly payments. Stark County, Case No. 2023 CA 00127 4
The trial court sentenced appellant to thirty days in prison with an additional thirty days
suspended, and issued a judgment entry on August 30, 2023.
{¶10} Appellant appeals the August 30, 2023 judgment entry of the Stark County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED
THE THIRTY (30) DAY JAIL TERM AGAINST APPELLANT FOR THE CONTEMPT.”
I.
{¶12} In appellant’s assignment of error, he contends the trial court committed
error in imposing the jail term against appellant for contempt.
{¶13} An appeal from a finding of contempt becomes moot when an 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; Oyler v. Lancaster, 5th Dist. Stark
No. 2019CA00130, 2020-Ohio-758. In this case, the record reveals that appellant served
his thirty-day jail sentence. Accordingly, appellant’s assignment of error has been
rendered moot.
{¶14} Alternatively, even if appellant’s assignment of error was not moot, we find
the trial court did not abuse its discretion. The parties agree the contempt in this matter
is a civil contempt because the contempt was remedial and allowed appellant an
opportunity to purge the jail sentence. Gordon v. Gordon, 5th Dist. Delaware No. 23 CAF
08 00047, 2023-Ohio-4780.
{¶15} An appellate court’s standard of review of a trial court’s contempt finding is
abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62
(1991). In order to find an abuse of discretion, we must determine the trial court’s decision Stark County, Case No. 2023 CA 00127 5
was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶16} Appellant argues the trial court abused its discretion because the purge
condition of monthly payments was unreasonable and because appellant did not have
the means to make monthly payments due to not being employed. A trial court abuses
its discretion when it orders conditions for purging that are unreasonable or impossible
for the contemnor to meet. Protz v. Protz, 5th Dist. Stark No. 2009CA00270, 2010-Ohio-
2502.
{¶17} As to appellant’s first argument regarding monthly payments, this Court has
previously held that purge conditions that require a contemnor to pay an arrearage
pursuant to a payment schedule is proper and not an abuse of discretion. Mohler v.
Mohler, 5th Dist. Holmes No. 20CA0008, 2021-Ohio-175 (purge condition to make $400
monthly payments not an abuse of discretion); see also Vaughn v. Vaughn, 12th Dist.
Warren No. CA2021-08-078, 2022-Ohio-1805 (trial court did not abuse discretion by
requiring appellant to make steady payments on child support arrearage); Leuvoy v.
Leuvoy, 10th Dist. Franklin No. 00AP-1378, 2001 WL 710123 (conditioning contempt
sanction on paying arrearage is not future obligation).
{¶18} Reviewing the monthly payment purge condition under an abuse of
discretion standard, we cannot find the monthly payment purge condition to be
unreasonable, considering the amount of the arrearages and considering that these
orders have been in place since 2007. While minimal payments were made via
involuntary intercepts of appellant’s pandemic assistance funds, appellant never made
any direct payments on the obligation since the establishment of the order in 2007. Stark County, Case No. 2023 CA 00127 6
Appellant offered to make “small” payments at the imposition hearing, but had not made
any payments as required by the purge conditions issued by the magistrate.
{¶19} With regards to appellant’s argument about lacking the means to make the
monthly payments, “generally, impossibility of performance is a valid defense against a
contempt charge.” Ruben v. Ruben, 10th Dist. Franklin No. 12AP-717, 2013-Ohio-3924.
The “contemnor bears the burden of presenting sufficient evidence at the contempt
hearing to establish that the trial court’s purge conditions are unreasonable or impossible
for him to satisfy.” Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d
297. A contemnor “must take all reasonable steps within [his or] her power to comply
with the court’s order and, when raising the defense of impossibility, must show
categorically and in detail why [he or] she is unable to comply with the court’s order.”
Lahoud v. Tri-Monex, Inc., 8th Dist. Cuyahoga No. 96118, 2011-Ohio-4120. A
contemnor’s “unsubstantiated claims of financial difficulties do not establish an
impossibility defense to a contempt charge.” Liming v. Damos, 133 Ohio St.3d 509, 2012-
Ohio-4783, 979 N.E.2d 297.
{¶20} We find appellant’s unemployment does not render the purge conditions to
be unreasonable. At the hearing, counsel for appellant stated he had applied to jobs at
a warehouse and “hoped” to get a job with Shearer’s. Appellant presented no testimony
or evidence regarding his inability to comply with the support orders. We find appellant
failed to meet his burden to show in detail why he could not obtain employment and
comply with the court’s order. He did not provide any evidence that he sought work at a
minimum of fifteen places per month or that he kept a written record of his applications
for review by the court as required by the magistrate as a purge condition. Additionally, Stark County, Case No. 2023 CA 00127 7
he did not provide any proof that he applied at a temp agency as required by the
magistrate’s purge conditions. Appellant’s unsubstantiated claims of financial difficulties
do not establish an impossibility defense to the contempt charge.
{¶21} Based on the foregoing, appellant’s assignment of error is overruled.
{¶22} The August 30, 2023 judgment entry of the Stark County Court of Common
Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Baldwin, J., and
King, J., concur