COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69487 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN YACOVELLA : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 1, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 323619 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES EILEEN A. GALLAGHER, ESQ. Cuyahoga County Prosecutor 55 Public Square Bldg. ELEANORE HILOW, Assistant Suite 2200 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Defendant-appellant John Yacovella appeals from his conviction following a no contest plea for non-support of his dependent child (R.C. 2919.21). Defendant contends that he was subjected to double jeopardy because he was previously found in contempt by the Domestic Relations Court for non-support of the child pursuant to a divorce decree. We find no error and affirm the conviction below. Pursuant to a divorce decree, defendant was obliged to make support payments for his minor son. On March 3, 1994, defendant and his ex-wife entered into an agreed judgment entry which stipulated the arrearages in child support payments and found defendant in contempt of court for failure to make said payments. Defendant was sentenced to 30 days in jail and/or 200 hours of community service. It was agreed he could purge the finding of contempt by thereafter maintaining a schedule of support payments. Defendant did not purge the contempt and was jailed for 30 days. On May 17, 1995, defendant was indicted for non-support of his child. Following arraignment, defendant filed a motion to dismiss asserting double jeopardy as a result of the previous contempt finding. The trial court denied the motion. Defendant pled no contest and was sentenced to prison for one and a half years and fined $2,500. - 3 - Defendant filed a timely appeal and asserts a sole assignment of error as follows: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY OVERRULING THE PRETRIAL MOTION TO DISMISS. This appeal turns on the difference between civil and criminal contempt. If the contempt found by the Domestic Relations Court was criminal in nature and merely a form of punishment, the defendant's claim of double jeopardy would have merit. However, we find that the contempt in the divorce proceedings was remedial and the court was correct in denying defendant's motion to dismiss. The double jeopardy clauses in the Ohio and United States Constitutions protect an individual from multiple prosecutions and from multiple punishments for the same offense. Shearman v. Van Camp (1992), 64 Ohio St.3d 468, 469, citing State v. Thomas (1980), 61 Ohio St.2d 254, 258-260. The Supreme Court in United States v. Halper (1989), 490 U.S. 435 has held that a civil sanction may constitute punishment for the purposes of double jeopardy. The issue in Halper was "whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes 'punishment' for the purposes of double jeopardy analysis." Id. at 443. The test set forth in Halper is "in determining whether a particular sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction that must be evaluated." Id. at 447, fn. 7. - 4 - The general law on the subject of contempt in child support situations is set forth in Morford v. Morford (1993), 85 Ohio App.3d 50, 54: We begin by noting that there is a difference between civil contempt and criminal contempt. Civil contempt is where the sanction is imposed to coerce the contemnor to comply with the court's order, and is established by using the clear and convincing evidence standard. Con-Tex, Inc. v. Consolidated Technologies, Inc. (1988), 40 Ohio App.3d 94, 531 N.E.2d 1353. Criminal contempt is where the court imposes a sanction as punishment for a past failure, Schrader v. Huff (1983), 8 Ohio App.3d 111, 8 OBR 146, 456 N.E.2d 587, and, thus, the contemnor is entitled to all the rights afforded to a criminal defendant. * * * The concurring judge in Morford elaborated as follows at 59: To begin, contempt proceedings for failure to pay child support are generally civil in nature as any potential jail sentence is designed merely to encourage payment. See Baldwin, Ohio Domestic Relations Law (1987) 398-400, Section 39.03(A); 48 Ohio Jurisprudence 3d (1983) 445, Family Law, Section 1226; 17 Ohio Jurisprudence 3d (1980) 324, Contempt, Section 6; see, also, 24 American Jurisprudence 2d (1983) 1052, Divorce and Separation, Section 1067. Punishment imposed upon an adjudication of civil contempt must afford the contemnor an opportunity to purge himself of contempt. Fry v. Fry (1989), 64 Ohio App.3d 519, 523, 582 N.E.2d 11, 13; Nardone v. Nardone (1989), 63 Ohio App.3d 798, 801, 580 N.E.2d 448, 449; see, also, Cleveland v. Ramsey (1988), 56 Ohio App.3d 108, 110, 564 N.E.2d 1089, 1091. In examining the propriety of the contempt imposed by the trial court, the initial inquiry must be whether the contempt was criminal or civil. Offenses against the dignity or process of the court, where the primary purpose of the punishment imposed is to - 5 - vindicate the authority of the court by punishing the contemnor, his or her disobedience is criminal contempt. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139. "If sanctions are primarily designed to benefit the complainant through remedial or coercive means, then the contempt proceeding is civil." Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16. Under civil contempt, prison sentences are conditional. "The 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 so ordered." Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253; State v. Kilbane (1980), 61 Ohio St.2d 201; Tucker v. Tucker (1983), 10 Ohio App.3d 251. Two recent appellate cases have applied these principles in child support convictions. In State v. Jones (June 19, 1995), Clermont App. No. CA 94-11-094, unreported, the court addressed the identical double jeopardy issue presented in this case: a defendant previously held in contempt and jailed for failure to supply child support and a criminal conviction for the same conduct. In line with the general authority, the court in Jones stated, "The critical feature that determines whether contempt is criminal or civil in nature 'is not when or whether the contemnor is physically required to set foot in a jail but whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order.'" Hicks v. Feiock (1988), 485 U.S. 624, 636. The Jones opinion goes on to state, "A sanction for civil contempt must allow the contemnor to - 6 - purge himself of the contempt and thereby avoid punishment. 'Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence.'" [Citations omitted.] Likewise, in State v. Rogers (Dec. 23, 1994), Lake App. No. CA 93-L-180, unreported, the court addressed the issue of double jeopardy for criminal non-support after a finding of contempt in the divorce proceedings. The Rogers court held that the prior contempt proceeding was civil in nature, citing Brown v. Execution 200, Inc., supra, and stating: Contempt is classified as civil or criminal depending on the character and purpose of the contempt sanctions ***. "If the sanctions are primarily designed to benefit the complainant through remedial or coercive means, then the contempt is civil. Id. at 253. Criminal contempt on the other hand, is usually characterized by a unconditional prison sentence or fine." *** This sanction was clearly designed to coerce appellant to comply with the Court's earlier order. He would receive the punishment only if he failed to comply with these conditions. Therefore, the contempt was civil in nature. The finding of contempt by the trial court was a remedial measure to benefit the complainant, the defendant's wife. The contempt was brought to coerce or persuade the defendant to pay the agreed upon child support. Mastandrea v. Spiros (July 20, 1995), Cuyahoga App. No. 68154, unreported. Both the Jones and Rogers courts went on further to state that, even if the divorce contempt proceeding for non-support had been criminal in nature, there was nevertheless no double jeopardy - 7 - violation under Blockburger v. United States (1932), 284 U.S. 299, which set forth the following standard: The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. *** "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." [Citations omitted.] See, also, State v. Tolbert (1991), 60 Ohio St.3d 89 paragraph one of the syllabus. In the criminal prosecution pursuant to R.C. 2919.21, the State must establish, as an element of the offense charged, that the defendant neglected to pay support for his minor child for at least 26 out of at least 104 consecutive weeks. The civil contempt action merely requires proof that defendant knew of the support order and intentionally failed to comply with its terms. A contempt finding by the Domestic Relations Court is not dependant upon any specific number of delinquent payments. The Domestic Relations Court may strictly enforce the terms agreed to by the parties. A finding of contempt by the Domestic Relations Court is a civil sanction for a breach of the agreed judgment. It does not rise to the level of criminal prosecution. Nor is the Domestic Relations Court required to address the adequacy of support, a determination which is required in a - 8 - criminal prosecution under R.C. 2919.21(A). As the court in Rogers, supra, stated: The criminal prosecution under R.C. 2919.21(A) required a determination of the adequacy of support. Such a determination required an inquiry into more than whether appellant had paid support as the Court had ordered. The statutory standard necessitates an evaluation of the surrounding circumstances, including the needs of the child, and the needs and resources of the custodial parent. Therefore, appellant's "single act" of failing to provide support to his son could support both a criminal contempt and a nonsupport conviction because each "offense" required proof of an additional fact that the other did not. The criminal contempt required proof that appellant failed to comply with the court order, and non- support required proof that appellant failed to adequately support his son. [Citations omitted.] A defendant in a criminal non-support case is subjected to a potential period of incarceration of six, twelve or eighteen months and/or a possible fine of up to $2,500 if convicted. The parameters of the criminal sentence are set by statute, whereas the judge, in finding an individual to be in civil contempt, has greater latitude in assessing the penalty. The criminal offense does not afford defendant an opportunity to purge his conviction through the performance of certain acts. Therefore, the Blockburger test, as applied here, does not work to preclude prosecution of defendant for both contempt and non-support of dependents under R.C. 2919.21. A similar result was found in State v. Kimbler (1986), 31 Ohio App.3d 147, where the court held that the double jeopardy clause - 9 - does not bar a prosecution for child stealing under R.C. 2905.04 after the defendant has been convicted of contempt of court for violation of a child custody order. The court in Kimbler held, as here, that although the crime of child stealing and the contempt charge arose from the same conduct, the child stealing indictment was based upon different and additional elements. We find that defendant was not exposed to double jeopardy when criminally convicted for child non-support following his civil contempt citation in the divorce proceedings. Defendant's sole assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, 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 .