COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68154 JOSEPH M. MASTANDREA : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CAROL A. SPIROS, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 20, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE JUVENILE COURT DIVISION CASE NO. 8972579 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender SUZAN M. SWEENEY (#0053656) Assistant Public Defender 1276 West Third St. - #307 100 Lakeside Place Cleveland, OH 44113-1569 For Defendant-Appellees: VICTORIA SAGE (#0039599) Ginsburg Legal Centers 13506 Lorain Avenue Cleveland, OH 44111 Also Listed: MICHAEL THAL (#Z00007218) 1836 Euclid Avenue - Suite 800 Cleveland, OH 44115 - 2 - 2 SPELLACY, P.J.: Complainant-appellant Joseph M. Mastandrea ("appellant") appeals the trial court's finding him in contempt and its modification of the child support order. Appellant assigns the following errors for review: I. THE COURT COMMITTED PREJUDICIAL ERROR IN ORDERING APPELLANT TO SERVE FIVE (5) DAYS IN THE COUNTY JAIL BY THE TERMS OF THE JOURNAL ENTRY AFTER HAVING ANNOUNCED IN OPEN COURT THAT JAIL TIME WAS SUSPENDED. II. THE COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN NOT PROPERLY AFFORDING APPELLANT THE OPPORTUNITY TO PURGE THE CONTEMPT. III. THE COURT COMMITTED PREJUDICIAL ERROR IN MODIFYING THE SUPPORT ORDER, AND HAD NO AUTHORITY TO SO MODIFY ON THE BASIS OF THE MOTION TO SHOW CAUSE BEFORE IT. IV. THE COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN MODIFYING THE SUPPORT ORDER WITHOUT REFERENCE TO THE GUIDELINES IN EFFECT FOR DETERMINING THE PAYMENT OF CHILD SUPPORT AND ALL FACTORS THAT MUST BE TAKEN INTO CONSIDERATION PURSUANT TO THE OHIO REVISED CODE. V. THE COURT COMMITTED PREJUDICIAL ERROR IN DETERMINING APPELLANTS' INCOME, AND SAID DETERMINATION WAS NOT BASED ON THE EVIDENCE PRESENTED AT HEARING. Finding the appeal to have merit in regard to the modification of the child support order, the appeal is affirmed in part, reversed in part, and remanded. I. On September 6, 1989, appellant filed a complaint to establish a parent-child relationship with Joseph E. Mastandrea, born - 3 - 3 February 11, 1988. Appellant also sought permanent custody. Carol Spiros, the child's mother, answered and counterclaimed for child support and medical coverage. The trial court established the parent-child relationship, retained custody with Spiros, and ordered appellant to pay $100 per month in child support. That amount later was changed to $200 per month. The payment was adjusted to a lower amount than recommended by the guidelines because appellant agreed to be responsible for the child's medical and health insurance. On August 7, 1991, Spiros filed a motion to hold appellant in contempt for failure to comply with the support order. No hearing was held on the motion. On January 29, 1993, Spiros filed motions to show cause, for sanctions, and for attorney's fees. Appellant had not complied with the child support order. On February 2, 1993, Spiros filed a motion for a separate evidentiary hearing for determination of child support and to modify child support. The motion to modify child support later was withdrawn. At a hearing held on the other motions, appellant first admitted the facts contained in the show cause motion but then withdrew the admissions. The matter was continued for an evidentiary hearing. Appellant failed to appear for that hearing. A hearing was held on October 27, 1994. Appellant was adjudged guilty of contempt of court. There was an arrearage of $8,000. Appellant was sentenced to thirty days in jail and fined $250. Twenty-five days of the sentence was suspended. Appellant - 4 - 4 has served the five days. The trial court modified the child support order. Appellant was ordered to pay $264 per month plus $25 a month to be applied to the arrearage. Appellant has appealed from this ruling. II. In his first assignment of error, appellant argues the journal entry differs from the sentence stated in open court. Appellant contends the trial court announced in open court that the entire sentence would be suspended while the journal entry only suspends twenty-five days of the thirty day sentence. There is no transcript, statement of evidence, or agreed statement of the hearing before this court. See App.R. 9(B), (C), and (D). It is the appellant's burden to provide an adequate record to this court demonstrating the claimed error. Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 62. The appellant must show error by reference to matters in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. Further, it is well settled that a court speaks only through its journal entry and not by oral pronouncement. See In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173. Remarks or comments made during court but not carried over into the judgment are, ordinarily, disregarded. See Howard v. Wills (1991), 77 Ohio App.3d 133, 140. - 5 - 5 This court has no transcript or evidence of what was said at the hearing before it. Yet, even if such a transcript was in the record, it is the journal entry of the trial court which controls not what may have been said in court. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant contends he was not afforded an opportunity to purge his contempt of court. Appellant maintains the contempt was civil rather than criminal in nature and the court must allow the contemnor an opportunity to purge himself of civil contempt. In reviewing an adjudication of contempt, it is necessary to determine whether the court used its civil or criminal contempt powers. "[S]entences for criminal contempt are punitive in nature and are designed to vindicate the authority of the court." State v. Kilbane (1980), 61 Ohio St.2d 201, 205. It usually is charac- terized by an unconditional prison sentence. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139. Civil contempt's purpose is to coerce the contemnor in order to obtain compliance with the lawful orders of the court. Kilbane, supra, at 205. It is designed primarily to benefit the complainant through remedial or coercive means. Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16. R.C. 3111.15(C) provides that failure to obey the judgment of order of the court is a civil contempt if the existence of the - 6 - 6 father-child relationship is declared. However, R.C. 2705.031(B)(1) states: Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support. R.C. 2705.031(E) provides the court has jurisdiction to make a finding of contempt for the failure to pay support and to impose the penalties set forth in R.C. 2705.05 in all cases in which past support is an issue. R.C. 2705.05(A) allows the imposition of a term of imprisonment of thirty days and a fine of $250 for a first offense. This is the sentence appellant received. An order to pay child support may be enforced by means of imprisonment through contempt proceedings. See Cramer v. Petrie (1994), 70 Ohio St.3d 131. The determination of whether contempt is civil or criminal in nature focuses not on the punishment imposed but on the purpose and character of the punishment. Brown v. Executive 200 Inc. (1980), 64 Ohio St.2d 250. It depends on whether the punishment is to benefit the opposing party or to vindicate the authority of the court. As there is no record of the hearing before this court, it cannot be discerned whether the contempt was civil or criminal in nature. Neither can be it determined whether appellant was given an opportunity to purge the contempt prior to the entry of judg- ment. The regularity of the proceedings below will be presumed. Appellant's second assignment of error is overruled. - 7 - 7 IV. In his third assignment of error, appellant asserts the trial court had no authority to modify the child support order. Appellant points out there was no motion to modify before the court at the time of the hearing on the motion to show cause. A motion to modify child support was withdrawn by Spiros prior to this hearing. The proper practice to modify a support order is to file a motion with the trial court. Notice is to be served in the manner provided for in Civ.R. 4 through 4.6. A trial court is not to initiate a modification of a support order. See Cooper v. Cooper (1983), 10 Ohio App.3d 143. Absent a motion for modification of support, the trial court's continuing jurisdiction over support is not invoked. Modification of support may be accomplished only after notice and hearing on such motion. Andrulis v. Andrulis (1985), 26 Ohio App.3d 164. Because there was no motion to modify child support before the trial court, it was error for the trial court to order a modification of the support order. Appellant's third assignment of error is well taken. V. Because of the resolution of the third assignment of error, the remaining assignments of error are moot. Judgment affirmed in part, reversed in part, and remanded. - 8 - 8 It is ordered that appellee and appellant each pay one-half the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Juvenile Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, J. and KARPINSKI, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .