Overmyer v. Thiebaut

2025 Ohio 5686

Opinion

[Cite as Overmyer v. Thiebaut, 2025-Ohio-5686.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

JOSEPH M. OVERMYER, CASE NO. 15-25-07 PLAINTIFF-APPELLEE,

v.

KELBY D. THIEBAUT OPINION AND fka OVERMYER, JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Domestic Relations Division Trial Court No. DR-20-03-031

Judgment Affirmed

Date of Decision: December 22, 2025

APPEARANCES:

Kelby D. Thiebaut fka Overmyer, Appellant Case No. 15-25-07

MILLER, J.

{¶1} Defendant-Appellant, Kelby Thiebaut f/k/a Overmyer (“Kelby”),

appeals from the June 10, 2025 Judgment Entry of the Van Wert County Court of

Common Pleas, Domestic Relations Division. Kelby argues the trial court

improperly adopted the magistrate’s decision on contempt and child support

motions without conducting an independent review and also erred by treating civil

contempt proceedings as criminal contempt proceedings. Additionally, she raises

several assignments of error that—as explained below—we reject because she did

not provide us with the transcripts necessary to resolve those assignments of error.

For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶2} This case began as a divorce action between Joseph Overmyer

(“Joseph”) and Kelby, who subsequently entered into a shared parenting plan

concerning their child. On October 18, 2023, the magistrate issued a decision on a

contempt motion filed by Joseph. The magistrate found, by clear and convincing

evidence, that Kelby was in contempt because she failed to timely notify the court

of her new address prior to her intended move, “in violation of the relocation notice

in the Shared Parenting Plan, as well as in violation of R.C. 3109.051(G).” The

decision imposed a 30-day jail sentence, but suspended the sentence and provided

Kelby with the opportunity to purge the contempt finding on the condition that she

“continues to be compliant with the Court’s parenting time orders, exchange

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location orders and relocation orders for the next twelve (12) months.” Kelby filed

objections to the magistrate’s decision, but the trial court sustained the magistrate’s

conclusions. In a subsequent judgment entry filed on July 22, 2024, the trial court

entered a judgment that made the same contempt findings, and imposed the same

suspended sentence and ability for Kelby to purge herself of the contempt, as

recommended in the magistrate’s October 18, 2023 decision.

{¶3} Kelby later filed a contempt motion and a motion for change of child

support on August 20 and August 30, 2024, respectively. In turn, Joseph filed two

motions on September 20, 2024. One was for execution of the suspended sentence

against Kelby, alleging that she had failed to comply with the purge conditions by

not providing timely notification of her latest relocation. The other was a contempt

motion concerning several instances of alleged conduct by Kelby in violation of

court orders.

{¶4} The magistrate held hearings on the four motions on November 7, 2024

and December 23, 2024. On February 26, 2025, the magistrate issued a lengthy

decision on the motions. Among the factual findings and legal determinations, the

magistrate found Kelby was in contempt of court for some of her conduct and

imposed a 60-day jail sentence, but suspended that sentence—and specified that

Kelby could purge the contempt—upon completing certain conditions.1

1 The magistrate also found Joseph had failed to prove Kelby was in contempt regarding certain other conduct, which is not relevant to this appeal.

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Additionally, the magistrate found Kelby had violated the terms of her previously

suspended 30-day jail sentence, but scheduled a future hearing to determine whether

the 30-day sentence would be imposed and afforded Kelby the opportunity to once

again purge the contempt, upon completing the same conditions imposed for

purging the 60-day suspended sentence.

{¶5} Kelby subsequently filed objections to the February 26, 2025

Magistrate’s Decision. On June 3, 2025, the trial court issued a thorough decision

denying Kelby’s objections and sustaining the magistrate’s decision in all of its

conclusions of law and determinations. On June 10, 2025, the trial court issued a

judgment entry in line with the February 26, 2025 Magistrate’s Decision, including:

(a) finding, by clear and convincing evidence, that Kelby was in contempt of the

court’s orders by failing to file a Notice of Intent to Relocate prior to her latest

intended move, failing to provide Joseph with the requisite advanced notice to

exercise parenting time, failing to provide their child’s social security card to

Joseph, unilaterally deciding to cut their child’s hair eight inches, and failing to pay

her child support obligations; (b) sentencing Kelby to a 60-day suspended jail

sentence that she had the ability to purge upon completing certain conditions; (c)

finding that Kelby had violated the terms of her previously suspended 30-day jail

sentence from the July 22, 2024 judgment entry by failing to timely notify Joseph

of her latest change of address; (d) invoking Kelby’s suspended jail sentence of 30

days, but also ordering that jail time may be suspended and Kelby may purge

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contempt upon completing the same conditions for purging the 60-day suspended

jail sentence2; and (e) ordering that Kelby report to court on a future date for a

hearing to determine whether the jail sentence would then be imposed. This appeal

followed.

II. ASSIGNMENTS OF ERROR

{¶6} Kelby raises seven assignments of error for our review:

First Assignment of Error

The trial court erred and abused its discretion by adopting the magistrate’s decision that lacked independent judgment and improperly applied precedent.

Second Assignment of Error

The trial court erred by applying unequal standards in contempt findings against Appellant and Appellee, violating Appellant’s rights to equal protection and due process.

Third Assignment of Error

The trial court erred by treating civil contempt proceedings as criminal contempt proceedings without providing Appellant the constitutional safeguards required for criminal contempt.

Fourth Assignment of Error

The trial court erred and abused its discretion by finding Appellant in contempt for nonpayment of child support despite good faith efforts to comply and employment changes beyond her control.

2 There is no commitment order or other indication in the record that Kelby was ever taken to jail to begin her 30-day sentence.

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Fifth Assignment of Error

The trial court erred by finding Appellant in contempt for failure to provide the minor child’s Social Security card, where compliance was impossible due to the retroactive nature of the order.

Sixth Assignment of Error

The trial court erred in refusing to consider Appellant’s actual current and past income when calculating retroactive child support, in violation of R.C. 3119.05 and 3119.05(K).

Seventh Assignment of Error

The trial court encouraged Appellee’s abuse of the legal process to punish Appellant.

III. DISCUSSION

{¶7} We address the assignments of error out of order in a manner that

facilitates our analysis. We initially note that pro se litigants, like Kelby, must

follow the same procedures as litigants represented by counsel. State ex rel. Neil v.

French, 2018-Ohio-2692, ¶ 10. “Pro se litigants are presumed to have knowledge

of the law and legal procedures, and they are held to the same standard as litigants

who are represented by counsel.” Homan v. Curtis, 2025-Ohio-4322, ¶ 5 (3d Dist.);

see also State v. Marks, 2024-Ohio-4863, ¶ 15 (3d Dist.) (“[g]enerally, a pro se

defendant is held to the same standard of conforming to legal procedures as an

attorney and is expected to abide by the rules of evidence and procedure—regardless

of his or her familiarity with them”).

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A. Second, Fourth, Fifth, Sixth, and Seventh Assignments of Error

{¶8} In her second, fourth, fifth, sixth, and seventh assignments of error,

Kelby makes several arguments concerning the factual findings in the February 26,

2025 Magistrate’s Decision, the trial court’s June 3, 2025 Decision, and the trial

court’s June 10, 2025 Judgment Entry. However, we are unable to reach the merits

of those arguments because Kelby failed to provide the transcripts necessary to

resolve those assignments of error.

1. Applicable Law

{¶9} “An appellate court’s review is limited to the record provided to it under

the Ohio Rules of Appellate Procedure.” Homon, 2025-Ohio-4322, at ¶ 7 (3d Dist.);

see also App.R. 9; App. R. 12(A)(1)(b). “‘The duty to provide a transcript for

appellate review falls upon the appellant.’” Id., quoting Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199 (1980); see also App.R. 10; Third Dist.Loc.R.

9(A). “‘When portions of the transcript necessary for resolution of assigned errors

are omitted from the record, the reviewing court has nothing to pass upon and thus,

as to those assigned errors, the court has no choice but to presume the validity of the

lower court’s proceedings, and affirm.’” Homon, 2025-Ohio-4322, at ¶ 7 (3d Dist.),

quoting Knapp at 199. “‘When arguing any factual matter, a transcript is necessary

on appeal as Appellant bears the burden of demonstrating error by reference to

matters contained within the record.’” Id., quoting In re Adoption of H.T., 2018-

Ohio-2806, ¶ 28 (3d Dist.).

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2. Analysis

{¶10} As the appellant, Kelby had the duty to provide the court with the

transcripts necessary to review her assigned errors. Hearings on the underlying

motions took place on November 7 and December 23, 2024. The magistrate made

numerous factual findings based on testimony given at those hearings, and the trial

court accepted those findings. However, Kelby did not provide us with a transcript

from either of those hearings.

{¶11} Kelby’s second, fourth, fifth, sixth, and seventh assignments of error

each involve disputed factual matters. Interestingly, Kelby concludes the statement

of facts in her appellate brief by acknowledging, “These factual disputes, including

alleged contemptuous conduct and child support issues, were addressed at hearings

held on November 7 and December 23, 2024, resulting in the Magistrate’s Decision

and subsequent adoption by the trial court.” (Appellant’s Brief at 6). Reviewing

the testimony from these hearings is necessary to substantively resolve these five

assignments of error. Without a transcript, “we must presume the validity of the

trial court’s proceedings and affirm its judgment” on those claims of error. Homon,

2025-Ohio-4322, at ¶ 11 (3d Dist.). Accordingly, the second, fourth, fifth, sixth,

and seventh assignments of error are overruled.

B. First Assignment of Error

{¶12} To support the first assignment of error, Kelby argues the trial court

erred by adopting the magistrate’s February 26, 2025 decision without making an

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independent review. She claims the trial court adopted a decision by the magistrate

that “directly copied and pasted, but did not cite authority from Van Scoder v. Van

Scoder, 2008-Ohio-4780 [(3d Dist.)], without proper analysis or application to the

unique facts of this case.” (Appellant’s Brief at 7).

{¶13} Pursuant to Civ.R. 53(D)(4)(d), “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 issues and appropriately applied

the law.” See also Figel v. Figel, 2009-Ohio-1659, ¶ 10 (3d Dist.) (“Civ.R. 53(D)

requires a trial court to conduct an independent analysis of the issues considered by

the magistrate”). However, an appellate court “presumes regularity in the

proceedings below, and thus, we must presume that the trial court conducted an

independent analysis before rendering its decision.” Figel at ¶ 10. Accordingly, a

party asserting that the trial court did not do so bears the burden of affirmatively

demonstrating the trial court’s failure to perform its Civ.R. 53(D) duty of

independent analysis. Id.

{¶14} Kelby has failed to meet her burden. We initially note that this

assignment of error focuses on an alleged failure by the trial court to ascertain that

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the magistrate appropriately applied the law, not whether the magistrate properly

determined any factual issues.3

{¶15} The trial court’s detailed June 3, 2025 Decision and subsequent

Judgment Entry show that it undertook the requisite independent review and

analysis. Civ.R. 53(D)(4)(d); see also Figel, 2009-Ohio-1659, at ¶ 11 (3d Dist.)

(rejecting argument that the trial court erred by failing to conduct an independent

review). Indeed, the trial court directly addressed this same claim concerning the

Magistrate’s Decision’s use of Van Schoder. The trial court comprehensively

addressed the alleged problem and found the magistrate “had the proper standard

for civil and criminal contempt and cited the property authority,” before denying

Kelby’s objection on the claim. Having also reviewed Kelby’s objection to the

magistrate’s decision on this point, we conclude the trial court did not err in its

analysis. (June 3, 2025 Decision at pp. 9-11). We find no merit in Kelby’s

arguments.4

{¶16} The first assignment of error is overruled.

3 In addition to not providing this court with transcripts from the November 7 and December 23, 2024 hearings, Kelby also failed to provide those transcripts to the trial court. Accordingly, and as the trial court explained in its June 3, 2025 Decision, when ruling on Kelby’s objections to the February 26, 2025 Magistrate’s Decision the trial court was required to accept the magistrate’s findings of fact and to review the magistrate’s conclusions of law based on those factual findings. Fogt v. Fogt, 2019-Ohio-1403, ¶ 13 (3d Dist.); see also Civ.R. 53(D)(3)(b)(iii) (an objection to a magistrate’s factual finding shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available). A review of the trial court’s June 3, 2025 Decision and June 10, 2025 Judgment Entry shows that the trial court properly accepted the magistrate’s findings of fact. 4 To the extent Kelby is complaining that the magistrate’s decision lacked independent judgment and improperly applied precedent, we have reviewed the magistrate’s February 26, 2025 decision, trial court’s June 3, 2025 Decision denying Kelby’s objections, the trial court’s June 10, 2025 Judgment Entry, and applicable law, and we do not find any error in that respect either.

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C. Third Assignment of Error

{¶17} In the third assignment of error, Kelby asserts that the trial court erred

by treating civil contempt proceedings as criminal contempt proceedings and not

providing her with the constitutional safeguards required for criminal contempt. We

disagree.

{¶18} While they both “contain an element of punishment, courts distinguish

criminal and civil contempt not on the basis of punishment, but rather, by the

character and purpose of the punishment.” Brown v. Executive 200, Inc., 64 Ohio

St.2d 250, 253 (1980). “Punishment is remedial or coercive and for the benefit of

the complainant in civil contempt.” Id. “Prison sentences are conditional” in civil

contempt, and “[t]he contemnor is said to carry the keys of his prison in his own

pocket . . . since he will be freed if he agrees to do as ordered.” Id. at 253-254 (five-

day conditional jail sentence was a civil penalty). For example, in civil contempt

cases, courts may choose to impose a jail sentence as a contempt sanction and then

suspend the sentence, as a method to both coerce the contemnor’s compliance with

the court’s order and to provide him or her an opportunity to purge. Whitman v.

Whitman, 2012-Ohio-405, ¶ 58 (3d Dist.). “The burden of proof for civil contempt

is clear and convincing evidence.” Id. at ¶ 53.

{¶19} “Criminal contempt, on the other hand, is usually characterized by an

unconditional prison sentence.” Brown at 253-254. “Such imprisonment operates

not as a remedy coercive in its nature but as punishment for the completed act of

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disobedience, and to vindicate the authority of the law and the court.” Id. at 254.

“[A] contemnor cannot be given a criminal contempt sanction unless proven guilty

beyond a reasonable doubt.” Id. at 252. “The key distinguishing feature of a civil

contempt sanction from a criminal contempt sanction is that the trial court must give

the contemnor an opportunity to purge the contempt” for civil contempt. Whitman

at ¶ 53; see also Porter v. Wirick, 2016-Ohio-5773, ¶ 55 (3d Dist.) (“[c]riminal

contempt is usually characterized by an unconditional sentence, and the contemnor

is not afforded an opportunity to purge himself or herself of the contempt”).

{¶20} Here the record clearly shows the court engaged in civil contempt

proceedings and provided Kelby with the opportunity to purge the contempt. The

punishment was remedial or coercive and for Joseph’s benefit. See Brown, 64 Ohio

St.2d at 253. Contrary to Kelby’s assertion, the trial court did not treat civil

contempt proceedings as criminal contempt proceedings without providing Kelby

constitutional safeguards required for criminal contempt. Constitutional safeguards

required for criminal contempt were not applicable.

{¶21} In her brief, Kelby acknowledges the trial court found her in civil

contempt through its use of the “clear and convincing” standard. While she

contends the trial court did not give her an opportunity to purge the contempt, she

relies on her own misstatements in her brief concerning the purge conditions to

make her argument. As shown in the facts and procedural history, above, the trial

court gave Kelby ample opportunity to purge the contempt. See Porter at ¶ 56 (by

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suspending the sentence imposed upon a party found in contempt for a past

violation, the court effectively allows for purging the contempt). In fact, with

respect to the contempt that resulted in the 30-day suspended jail sentence, the June

10, 2025 Judgment Entry indicates the trial court provided Kelby with an additional

opportunity to purge the contempt underlying the invoked 30-day jail sentence if

she completes the same conditions for purging the 60-day suspended jail sentence.

The trial court provided Kelby with every opportunity to purge the contempt

finding.

{¶22} The third assignment of error is overruled.

IV. CONCLUSION

{¶23} For the foregoing reasons, Appellant’s assignments of error are

overruled. Having found no error prejudicial to the appellant in the particulars

assigned and argued, we affirm the judgment of the Van Wert County Court of

Common Pleas, Domestic Relations Division.

WALDICK, P.J. and WILLAMOWSKI, J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Mark C. Miller, Judge

Juergen A. Waldick, Judge

John R. Willamowski, Judge

DATED: /jlm

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