COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72757 SHARON K. GANELLI : a.k.a. SHARON K. ROGERS : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ANTHONY R. GANELLI : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-184,356 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: HERBERT PALKOVITZ Attorney at Law 1600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1753 For defendant-appellee: ANTHONY R. GANELLI, pro se 595 Concord Circle Berea, Ohio 44017 KENNETH A. ROCCO, J.: Appellant appeals the trial court's decision finding appellant in contempt of court on the grounds that appellee's testimony was -2- rife with inconsistencies and should not have been believed. Appellant also appeals the lower court's denial of her motion for a new trial on the grounds that newly discovered evidence exists which, appellant asserts, further casts doubt upon appellee's truthfulness. Since the trial court's rulings were supported by appellant's own testimony, the decisions of the trial court are affirmed. I. Appellant Sharon K. Ganelli (Rogers) and appellee Anthony R. Ganelli were divorced on October 17, 1989. Appellant received custody of the parties' minor child, Amanda (d.o.b. June 28, 1988), and the court granted visitation rights to appellee. On March 9, 1994, the prior court order was modified by agreement of the parties. According to the terms of the modification, appellee would have visitation of Amanda every weekend, alternating between Friday to Sunday on the first weekend to Saturday at 10:00 a.m to 8:00 p.m. on the second weekend. On February 23, 1994, appellant filed a motion to relocate the minor child. On May 16, 1994, appellee filed a motion to modify allocation of parental rights and responsibilities. To resolve these motions, the parties appeared before a referee appointed by the trial judge and signed an interim agreement, which was filed on June 17, 1994. The agreement permitted appellant to move to Kentucky with Amanda and gave appellee six weeks of visitation with Amanda during the summer of 1994. -3- On May 1, 1995, the parties again appeared in open court and signed an agreement that revised the parties' previously-modified visitation schedule. The agreement was subsequently signed by the trial judge and filed with the court on August 18, 1995. Pursuant to the agreement, appellee would have visitation with Amanda as follows: one weekend per month with appellant providing transpor- tation to Cleveland; seven weeks during summer vacation; half of Amanda's spring and Christmas vacations; and alternating holidays. Regarding appellee's monthly visitation, paragraph 10 of the agreement provides: Mother will attempt to endeavor to travel to Cleveland the 1st or 3rd weekend of each month. If this is not pos-sible, mother will give 2 weeks advance notice. On August 18, 1995, the court issued an order to the effect that it would not enforce appellee's visitation/parenting rights as set forth in the Judgment Entry of Divorce and/or the May 1, 1995 Judgment Entry until appellee attended the requisite seminar.1 Appellee complied on August 25, 1995.2 Appellee did not have visitation with Amanda in August 1995. On September 14, 1995, appellee filed a Motion to Show Cause why appellant should not be held in contempt for her failure to allow visitation and for attorney's fees. 1 Loc.R. 34 requires that the parties to any action for divorce or legal separation attend a court-approved seminar for divorcing parents. 2 The court had previously granted appellant's request to waive her attendance. -4- Hearings were held on app 24, February 5, and February 8, 1996. Although severaellee's motion b witnesses testified at length, their testimony was largely immaterial. Only the testimony provided by the parties was rele- vant to the issues before the lower court. The necessary facts adduced at trial are as follows: On August 23, 1995, appellant left a message on appellee's answering machine telling him she was coming to Cleveland for her grand- mother's funeral and would be staying at her current father-in- law's home. Appellee did not see Amanda while she was in Cleveland with appellant. In October 1995, appellant notified appellee of her plans to bring Amanda to Cleveland more than two weeks before their arrival. However, appellee was unable to visit with Amanda that weekend because he was in the process of separating from his current wife. Appellant also testified that she was unable to bring Amanda to Cleveland in January 1996. Although appellee was in Kentucky for a hearing that month, appellant admitted that she did not offer visitation to appellee while he was there. Therefore, appellee did not have visitation with Amanda in January. On March 22, 1996, the magistrate issued his decision and held appellant in contempt for her failure to comply with the visitation agreement in August 1995 and January 1996.3 Appellant filed 3 Appellee had also alleged that appellant was in contempt for failing to provide visitation in October 1995; however, the magistrate determined that appellant had complied with the visitation order that month. -5- objections. On May 2, 1997, the court adopted the magistrate's recommendations, with modifications, and held appellant in contempt for her failure to provide visitation in the months of August 1995 and January 1996. On March 27, 1997, appellant filed a motion to terminate and/or restrict visitation on the grounds that a substantial change in circumstances warranted a revision in the visitation agreement, and on April 11, 1997, appellant filed an emergency motion to stay visitation. The basis for both of appellant's motions was that appellee had been arrested on charges of telephone harassment, stalking and aggravated menacing of a woman in Lakewood, Ohio. Appellee pled no contest, was found guilty, and was sentenced by the Lakewood Municipal Court.4 On May 16, 1997, appellant filed a motion for a new trial on the grounds that the proceedings against appellee in the Lakewood Municipal Court constituted new evidence regarding the court's determination of contempt against appellant because the findings cast doubt upon the credibility and reliability of appellee's testimony in the hearings held on appellee's motion to show cause. The lower court denied appellant's motion for a new trial on June 4, 1997 and denied appellant's motion for an emergency stay on June 4 Appellee was initially fined and sentenced for aggravated menacing and telephone harassment in case numbers 96B 1669 and 96B 1670. The Lakewood Municipal Court ultimately suspended appellee's sentence and placed him on four years active probation. As additional terms of appellee's probation, appellee was ordered to refrain from all contact with the woman, obtain counseling, and continue under house arrest by electronic monitoring. -6- 6, 1997. The lower court has not yet ruled on appellant's motion to terminate and/or restrict visitation. O 997, appellant filed her Notice of Appeal of the lower court's order denying appellant's objections to the Magis- trate's Report, issued May 2, 1997, and the lower court's denial of n June 25, 1appellant II. Appellant's first two assignments of error relate to the trial court's decision finding appellant in contempt and, therefore, will be considered together. I. THE TRIAL COURT'S DECISION FINDING APPEL- LANT IN CONTEMPT FOR DENYING VISITATION TO APPELLEE IN AUGUST, 1995, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS ERRONEOUS AS A MATTER OF LAW. II. THE TRIAL COURT'S DECISION FINDING APPEL- LANT IN CONTEMPT FOR DENYING VISITATION TO APPELLEE IN JANUARY, 1996, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS ERRONEOUS AS A MATTER OF LAW. Appellant's first and second assignments of error allege the trial court erred when it overruled appellant's objections to the magis- trate's report and adopted his determination that appellant was in contempt for failing to provide appellee with visitation in August, 1995 and January, 1996 because the ruling was against the manifest weight of the evidence. 5 Appellant's appeal of the May 2, 1997 order issued by the trial court is timely pursuant to App.R. 4(B)(2), which provides that when a party files a post-judgment motion under, inter alia, Civ.R. 59(B), the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered. -7- When appellate review of a contempt adjudication entails an inquiry into the weight of the evidence to sustain the judgment, the applicable standard of review turns upon the nature of the contempt decree. ConTex, Inc. v. Consolidated Technologies, Inc. (1988), 40 Ohio App.3d 94, 95. Thus, this court must first determine whether the contempt adjudication is civil or criminal in nature. See, id. The significant distinguishing factors between civil contempt and criminal contempt are the purpose and character of the sanc- tions imposed. Id., citing Lamb v. Cramer (1932), 285 U.S. 217, 220-221, and Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250. The purpose behind sanctions for criminal contempt is to vindicate the authority of the court. Id., citing Brown, supra. In contrast, [c]ivil contempt is defined as that which exists in failing to do something ordered to be done by the courts in a civil action for the benefit of the opposing party therein. Beach v. Beach (1955), 99 Ohio App. 428, 431, 59 O.O. 187, 189, 134 N.E.2d 162, 165; Pedone v. Pedone (1983), 11 Ohio App.3d 164, 11 OBR 247, 463 N.E.2d 656, paragraph one of the syl- labus. Sancho v. Sancho (1996), 114 Ohio App.3d 636, 642. In the matter sub judice, therefore, the contempt finding is civil in nature. It is well settled that judgments supported by some compe- tent, credible evidence going to all of the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Id. at 97, quoting C.E. Morris Co. V. Foley Constr. Co. (1978), 54 Ohio St.2d 279. Before -8- a trial court may make a finding of civil contempt, the evidence before it must be clear and convincing. ConTex, Inc., supra at 95. Therefore, the role of the court when reviewing a ruling of civil contempt is to determine whether the court below had competent and credible evidence before it to support its finding of contempt by clear and convincing evidence. Id. It is appellant's position that appellee failed to demonstrate contempt by clear and convincing evidence because appellee's testimony at the hearing was conflicting and incompetent. The record revealed that there were inconsistencies in appellee's testimony; however, when appellant was questioned by appellee's attorney regarding Amanda's visitation in August, the following colloquy took place: Q. [by appellee's attorney]: You weren't coming up the first weekend, correct? A. [by appellant]: Yes. Q. That's correct, correct? A. Right. Q. And you had no intention of coming up the third weekend, is that correct? A. I didn't know at that point, but I didn't come up the third weekend, no. Q. And if your grandmother had not passed away when she did, tell the Court how you gave Tony (appellee) two weeks advance notice that you were going to be up any other weekend? A. I had advised him that my grandmother was sick, and it would be a day to day situa- tion. -9- Q. And again if she didn't pass away in August, when were you coming up? *** Q. Tell us when you were coming up if your grandmother hadn't passed away when she did? A. I would have come up the last weekend in August. Q. And did you notify Tony that (sic) two weeks in advance? A. I was waiting to see what happened with my grandmother. Q. So your answer is no? A. No. When appellant was subsequently questioned regarding the January visitation, the following exchange occurred: Q. Now let's move to January. The children were sick for a portion of January, cor- rect? A. They have been sick all of January. Q. All of January? Tell me what arrange- ments you made with Tony with regard to visitation for Amanda? A. I informed him that the younger two were sick, and I didn't know what I was going to be able to do with Amanda. Q. And he asked you he told you he wanted visitation, correct? A. Yes. Q. So what efforts did you make to have Amanda come to Cleveland to visit with Tony? A. None. -10- Thus, according to appellant's own testimony, appellant did no ring Amanda to visit app ppellee two weeks' advance notice when shetb did bring Amanda to Cleveland in August for her grandmother's funeral.6 Furthermore, appellant made no arrangements to bring Amanda to Cleveland in January. According to the visitation agreement signed by both parties, appellant is required to provide Amanda to appellee in Cleveland for visitation once a month. If Amanda does not travel to Cleveland either the first or third weekend of the month, appellant is required to provide appellee with two weeks' notice of the date when she will be visiting. By appellant's own testimony, there- fore, she did not comply with the court's order in either August, 1995 or in January, 1996. Although there is no evidence to indicate that appellant intended to violate the court order, [p]roof of purposeful, willing, or intentional violation of a court order is not a prerequisite to a finding of contempt. Pugh v. Pugh (1984), 15 Ohio St.3d 136, at paragraph one of the syllabus; see, also, Pedone v. Pedone (1983), 11 Ohio App.3d 164. If the dictates of the judicial decree are not followed, a contempt citation will result. It 6 After finding that there has been perpetual Court activity from the commencement of the divorce proceeding in 1988 to the present time, the magistrate reviewed the record and accurately noted that [w]hile Mrs. Roger's (appellant's) request to consolidate her trips to Cleveland is entirely reasonable, the history of this case suggests that neither Plaintiff (appellant) nor Defendant (appellee) are moved by reason or logic. -11- is irrelevant that the transgressing party does not intend to violate the court order. Pendone, paragraph 2 of the syllabus. The record is clear that, based solely on appellant's tes- timony, in both August, 1995 and January, 1996, appellant failed to comply with the order of visitation that was in effect; thus, the trial court's decision that appellant was in contempt of the court order was supported by clear and convincing evidence. Appellant's first and second assignments of error are over- ruled. Appellant's third assignment of error alleges: THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION IN FAILING TO GRANT APPELLANT'S MOTION FOR A NEW TRIAL PURSUANT TO OHIO CIVIL RULE 59 BECAUSE APPELLANT SUCCESSFULLY FULFILLED THE SIX (6) ELEMENTS NEEDED IN ORDER TO BE GRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVI- DENCE. Appellant's third assignment of error contends the trial court erred when it denied her motion for a new trial. Civ.R. 59(A) provides the following grounds upon which the granting of a new trial may be based: (1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or mag- istrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; (2) Misconduct of the jury or prevailing party; (3) Accident or surprise which ordinary pru- dence could not have guarded against; -12- (4) Excessive or inadequate damages, appear- ing to have been given under the influ- ence of passion or prejudice; (5) Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property; (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; (7) The judgment is contrary to law; (8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial; (9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the applica- tion. In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown. * * * Appellant argues that the trial court should have granted a new trial based on the newly discovered evidence of appellee's convictions in Lakewood Municipal Court. To warrant the granting of a motion for a new trial based on the ground of newly discovered evidence, it must be shown that (1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence. -13- Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7, 16, quoting Sheen v. Kubiac (1936), 131 Ohio St. 52, 5 O.O. 365, 1 N.E.2d 943. Granting a new trial pursuant to Civ.R. 59(A) is within the sound discretion of the trial court. Id., citing Highfield v. Liberty Christian Academy (1987), 34 Ohio App.3d 311, 315, 518 N.E.2d 592, 597. Appellant contends that the evidence of appellee's convictions in Lakewood Municipal Court demonstrates that appellee's testimony was neither reliable nor credible but was self-serving and false and resulted in the trial court erroneously believing his testimony rather than the testimony of appellant. However, our review of the record indicates that it is unlikely that the newly discovered evidence to which appellant refers would have altered the decision by the lower court in its finding that appellant was in contempt. Although the newly discovered evidence may create additional doubt regarding appellee's truthfulness and therefore persuade the court that appellee's testimony should not be believed, that determination is irrelevant to the finding of contempt based on appellant's own, presumably accurate, testimony. Appellant admit- ted that she did not bring Amanda to Cleveland to visit appellee either the first or third weekend in August, 1995 and that she did not give him two weeks' notice when she did come to Cleveland. Appellant also acknowledged that she did not bring Amanda to Cleveland in January, 1996 and made no arrangements to do so. Therefore, appellant violated the court's visitation order. Appellee's testimony need not have been believed to permit the -14- court to find appellant in contempt. Furthermore, given the prior indications of appellee's untruthfulness, this additional evidence may have been considered as merely cumulative.7 Appellee's convictions do not alter the fact that appellant failed to provide Amanda to appellee for visitation as required. The trial court's decision denying appellant's motion for a new trial was not an abuse of discretion. Appellant's final assignment of error is overruled. 7 This court does acknowledge that appellee's convictions might possibly have been relevant if the hearing in the court below was to establish or modify appellee's visitation rights. However, the hearing in the lower court was based solely on appellee's motion to show cause and determined only that appellant was in contempt of the court's visitation order. -15- It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas, Domestic Relations Division, 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. TIMOTHY E. McMONAGLE, P.J. and JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .