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Date: 12-04-2017

Case Style:

Jessica Petersheim n/k/a Fry v. Joshua Petersheim

Case Number: 16AP0043

Judge: Carr

Court: Ohio Court of Appeals, Ninth District on appeal from the Court of Common Pleas, Wayne County

Plaintiff's Attorney: R.J. Helmuth

Defendant's Attorney: Rosanne Shriner

Description: {¶1} Appellant, Jessica Fry, f.k.a. Jessica Petersheim, appeals the judgment of the
Wayne County Court of Common Pleas. This Court reverses and remands.
I.
{¶2} This matter arises out of the divorce of Fry and Joshua Petersheim. Fry filed a
complaint for divorce on December 6, 2012. The parties eventually entered into a separation
agreement and the trial court issued a judgment entry of divorce with children on February 4,
2014.
{¶3} On June 25, 2015, Petersheim filed a motion for contempt against Fry, alleging
that she had willfully and knowingly violated the terms of the separation agreement by failing to
make payments on the debt related to her Dodge Durango. Article 5 of the separation agreement,
which dealt with the division of personal property, specified that “[Fry] shall have as her own
property, free and clear of any claim of [Petersheim], * * * [the] 2006 Dodge Durango titled in
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[Petersheim’s] name, subject to the indebtedness due to Marine Federal Credit Union. Once the
debt is paid in full [Petersheim] shall cooperate with the transfer of the title to [Fry.]” Article 7
of the separation agreement, which addressed “Bills and Obligations,” stated that Fry “shall
indemnify and hold [Petersheim] harmless” with respect to “[t]he debt payable to Marine Federal
Credit Union in [Petersheim’s] name[.]” In his contempt motion, Petersheim alleged that Fry’s
failure to pay off the debt to Marine Federal Credit Union had negatively impacted his credit
score and hindered his ability to secure other loans. In addition to seeking a contempt order,
Petersheim also asked for an order that refinanced the debt out of his name, in addition to
damages and an award of attorney fees.
{¶4} The matter was scheduled for a show cause hearing before a magistrate. Both
parties filed briefs prior to the hearing. Fry maintained that she was current on her vehicle
payments at the time the contempt motion was filed and that the vehicle was traded in to
extinguish the debt in July 2015. Petersheim acknowledged that the debt had since been
extinguished, but argued that the trial court should hold Fry in indirect civil contempt.
Petersheim argued that assigning fault to Fry might help him to restore his credit score.
{¶5} Multiple witnesses testified at the hearing, including Fry and Petersheim. Fry
acknowledged that while she had made payments to Marine Federal Credit Union, she had failed
to make all of those payments in a timely fashion. Fry maintained, however, that she was current
on her payments at the time the contempt motion was filed. Fry further testified that within a
month after Petersheim filed his motion for contempt, she traded in the Dodge Durango in order
to extinguish the debt. Petersheim testified that the damage to his credit score as a result of Fry’s
shoddy payment history had prevented him from securing other vehicle and home loans.
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{¶6} On March 23, 2016, the magistrate issued a decision finding Fry in civil
contempt. While Fry was current on the payments at the time Petersheim filed the motion, the
magistrate found that she had consistently been late on payments and missed two payments
completely. The magistrate concluded that there was clear and convincing evidence that Fry’s
failure to make timely payments had negatively impacted Petersheim’s credit score and
prohibited him from securing other loans, and therefore that Fry had failed to hold Petersheim
harmless with regard to the debt in accordance with the separation agreement. With respect to
attorney fees, the magistrate found that while the loan was not delinquent at the time Petersheim
filed his motion, “[Petersheim] was acting reasonably in assuming [Fry’s] pattern of late
payments would continue into the future.” The magistrate sentenced Fry to three days in jail and
ordered her to pay a fine of $250. The magistrate then suspended the jail sentence and fine on
the condition that Fry pay Petersheim’s attorney fees in the amount of $1350 and pay the court
costs associated with the action.
{¶7} The trial court issued an order independently adopting the magistrate’s decision
on the same day that the decision was filed. The trial court imposed the $250 fine and three-day
jail sentence and ordered that the sanctions were “suspended on the condition [Fry] pay []
Petersheim’s attorney’s fees of $1350 and pay the costs of this action by reimbursing
[Petersheim] $85 for his payment of the deposit and further by paying the balance of court costs
due in this matter.” The trial court further scheduled a purge hearing for September 19, 2016, the
day upon which Fry was required to pay the attorney fees and costs in full.
{¶8} On March 28, 2016, Fry filed a number of objections to the magistrate’s decision.
Fry subsequently filed a transcript and memorandum in support of her objections. Petersheim
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filed a memorandum responding to the objections. On July 6, 2016, the trial court issued a
judgment entry overruling Fry’s objections to the magistrate’s decision.
{¶9} Fry filed a timely notice of appeal. Now before this Court, Fry raises five
assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS OF LAW
BY IMPOSING CRIMINAL SANCTIONS UPON HER FOR PAST CONDUCT
WHICH THE COURT FOUND TO BE IN CONTEMPT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED ERROR AS A MATTER [OF] LAW BY
IMPOSING CRIMINAL SANCTIONS UPON THE APPELLANT FOR
CONDUCT THAT WAS NOT WILLFUL OR INTENDED TO DEFY THE
COURT.
{¶10} In her first and second assignments of error, Fry raises an array of challenges to
the trial court’s contempt order. Fry’s central claim that permeates her first two assignments of
error is that the trial court violated her due process rights when it imposed criminal contempt
sanctions during a civil contempt proceeding. We agree.
{¶11} “What constitutes due process in a contempt proceeding depends to a large extent
upon whether the contempt is direct or indirect, and whether it is civil or criminal.” Cincinnati v.
Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 202 (1973). Direct contempt is disrespectful
behavior that occurs in the presence of the court, or near the presence of the court, and disrupts
the administration of justice. Forrer v. Buckeye Speedway, Inc., 9th Dist. Wayne No.
07CA0027, 2008-Ohio-4770, ¶ 14. Indirect contempt, on the other hand, occurs outside the
presence of the court. Id.
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{¶12} “Regardless of whether a particular contempt is direct or indirect, the sanctions
imposed based on that contempt may be either criminal or civil.” Id. at ¶ 15. “While both types
of contempt 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). “If the primary purpose of the sanction is
to punish the defendant for a completed violation of a court’s order, it is a criminal sanction. If
the primary purpose of the sanction is to benefit the plaintiff, it is a civil sanction.” (Internal
citations omitted.) Forrer at ¶ 15.
If sanctions are primarily designed to benefit the complainant through remedial or
coercive means, then the contempt proceeding is civil. Remedial civil contempts
serve to compensate plaintiffs for damages suffered because of the defendant’s
disobedience of a court order. The plaintiff must prove [his or] her loss as [he or]
she would in any legal action for damages. Coercive civil sanctions are imposed
when the defendant is engaged in an ongoing violation of a court’s order. [Their]
purpose * * * is to induce the defendant to stop the ongoing contemptuous
behavior. Defendants imprisoned under a coercive civil sanction are said to carry
the keys to [their] prison in [their] own pocket. As soon as they purge the
contempt by stopping the ongoing violation, they are released. Criminal
contempt, on the other hand, is usually characterized by an unconditional prison
sentence or fine. Its sanctions are punitive in nature, designed to vindicate the
authority of the court.
(Internal citations and quotations omitted.) Harvey v. Harvey, 9th Dist. Wayne Nos. 09CA0052,
09CA0054, 2010-Ohio-4170, ¶ 5.
{¶13} This Court has observed that “[a]lthough contempt proceedings are neither civil
nor criminal, we must clarify the sanctions order by the trial court as either ‘civil’ or ‘criminal’ to
determine whether it provided due process.” Id., citing Denovchek v. Bd. of Trumbull Cty.
Commrs., 36 Ohio St.3d 14, 16 (1988); Cincinnati Dist. Council 51, 35 Ohio St.2d at 202. “[I]f
[the contempt] is civil, then the offending party is entitled to only those due process protections
afforded parties in civil actions, whereas, if it is criminal, the party is entitled to the due process
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protections normally afforded defendants in criminal actions.” Doerfler v. Doerfler, 9th Dist.
Wayne No. 06CA0021, 2006-Ohio-6960, ¶ 16.
DISCUSSION
{¶14} At the outset of the hearing before the magistrate, Fry’s attorney sought
clarification regarding the nature of the proceeding, given that Petersheim seemed to be asking
for criminal sanctions. Petersheim’s attorney responded in the negative and stated that “the
intent is that it would be a civil contempt.” The matter proceeded with the understanding that
Petersheim was seeking civil contempt sanctions.
{¶15} The evidence presented at the hearing demonstrated that Fry was current on the
payments at the time the contempt motion was filed. The evidence further showed that Fry had
traded in the vehicle in question prior to the contempt hearing in order to extinguish the debt.
Petersheim took the stand and explained that Fry’s issues with the payments had prohibited him
from obtaining other loans. The magistrate found that there was “clear and convincing evidence
that [Fry] failed to hold [Petersheim] harmless with regard to the Marine Federal Credit Debt and
is therefore in civil contempt.” This finding was predicated on the fact that Fry’s failure to make
timely payments negatively impacted Petersheim’s credit score and hindered his ability to secure
other loans. The magistrate’s decision stated that Fry was “sentenced” to the three-day jail term
and a fine, which were suspended on the condition that she pay Petersheim’s attorney fees and
other costs. As noted above, the trial court independently adopted the magistrate’s decision,
including the sanctions which included a sentence of three days in jail and a $250 fine. The trial
court suspended the sentence on the condition that Fry pay Petersheim $1350 in attorney fees,
$85 for his payment of the deposit, as well as the balance of the court costs. The trial court
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further ordered that the attorney fees and costs would be paid by September 19, 2016. The trial
court set a purge hearing for that date.
{¶16} The contempt sanctions levied against Fry were not coercive sanctions intended to
bring her into compliance with the separation agreement. Nor were the sanctions tailored to
serve a remedial purpose by making Petersheim whole for the damage done to his credit score,
regardless of whether the sanctions were suspended provided that she comply with certain
conditions. Instead, the contempt sanctions were intended solely to punish Fry for completed
violations of the separation agreement. As such, the fine and jail sentence were criminal
contempt sanctions. See Forrer at ¶ 22; Estate of Harrold v. Collier, 9th Dist. Wayne Nos.
07CA0074, 08CA0024, 2009-Ohio-2782, ¶ 14.
{¶17} By imposing criminal contempt sanctions, the trial court violated Fry’s due
process rights. This Court has observed that “[a] trial court cannot impose criminal contempt
sanctions on a defendant unless it has afforded the defendant rights and privileges required in a
criminal proceeding.” Forrer at ¶ 23. “‘Without deciding what may be the rule in civil
contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be
innocent, he [or she] must be proved to be guilty beyond a reasonable doubt, and cannot be
compelled to testify against [him or her]self.’” Forrer at ¶ 23, quoting Gompers v. Buck’s Stove
and Range Co., 221 U.S. 418, 444 (1911). The contemnor also has a right to proper notice of a
criminal contempt hearing. Doerfler at ¶ 18. In this case, Fry inquired about the nature of the
hearing and was told that it was a civil contempt proceeding. Fry was the first witness to testify
at the hearing when she was cross-examined by Petersheim’s attorney. Furthermore, the trial
court utilized a clear and convincing standard when it determined that Fry was in contempt.
8
Under these circumstances, Fry’s due process rights were violated when the trial court ultimately
imposed criminal contempt sanctions.
{¶18} Fry’s first and second assignments of error are sustained.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED ERROR IN ITS ORDER BY FAILING TO
APPLY THE HOLDING OF WYSOCKI V. WYSOCKI, 65 OHIO LAW ABS
156 (151) WHICH PROVIDES THAT WHEN A PARTY IS UNABLE TO
COMPLY WITH A COURT ORDER AT THE TIME THEY ARE FOUND
GUILTY OF CONTEMPT, THE CHARGE OF CONTEMPT SHOULD BE
DISMISSED EVEN THOUGH THAT PARTY MAY HAVE BEEN ABLE TO
COMPLY WITH THE ORDER AT THE TIME IT WAS ENTERED OR WHEN
THAT PARTY WAS FIRST CHARGED WITH CONTEMPT.
ASSIGNMENT OF ERROR IV
IN THE ALTERNATIVE, THE TRIAL COURT ERRORED (SIC) IN FINDING
THE APPELLANT IN CIVIL CONTEMPT BECAUSE (1) SHE WAS FULLY
COMPLIANT WITH THE COURT’S ORDER AT THE TIME THE
DEFENDANT FILED HIS MOTION FOR CONTEMPT AND THE COURT
ISSUED A SHOW CAUSE ORDER; AND (2) THE UNDERLYING
OBLIGATION WHICH WAS THE BASIS FOR THE CONTEMPT HAD BEEN
FULLY SATISFIED BY THE APPELLANT WITHIN 50 DAYS FROM WHEN
THE DEFENDANT ASKED THAT THE APPELLANT BE FOUND IN
CONTEMPT.
ASSIGNMENT OF ERROR V
THE MAGISTRATE’S DECISION IMPOSING PAYMENT OF ATTORNEY
FEES BY THE PLAINTIFF OF $1350 IS EXCESSIVE AND AN ABUSE OF
DISCRETON.
{¶19} Fry raises three additional challenges to the trial court’s contempt order. As our
resolution of Fry’s first and second assignments of error is dispositive of this appeal, we decline
to address the third, fourth, and fifth assignments of error as they have been rendered moot. See
App.R. 12(A)(1)(c).
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III.
{¶20} Fry’s first and second assignments of error are sustained. We decline to address
the third, fourth, and fifth assignments of error as they have been rendered moot. The judgment
of the Wayne County Court of Common Pleas is reversed and the cause is remanded for further
proceedings consistent with this decision.
Judgment reversed,

Outcome: Reversed

Plaintiff's Experts:

Defendant's Experts:

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