King v. King , 2013 Ohio 432 ( 2013 )

[Cite as King v. King, 2013-Ohio-432.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
PHILIP G. KING, : OPINION
Plaintiff-Appellee, :
CASE NO. 2011-G-3046
- vs - :
JENNIFER L. KING, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 07 DC
000470.
Judgment: Affirmed.
R. Russell Kubyn, The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellee).
Joyce E. Barrett, 800 Standard Building, 1370 Ontario Street, Cleveland, OH 44113-
1752 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Jennifer L. King, appeals from a judgment of the Geauga
County Court of Common Pleas, imposing a 30-day jail sentence for her failure to purge
her contempt, and suspending appellee, Philip G. King’s, spousal support obligation for
a period of 16 months. The trial court ordered that Philip’s spousal support obligation
towards Jennifer be used to offset Jennifer’s obligation to pay Philip’s attorney fees
pursuant to a previous court order in which judgment was issued against Jennifer for
those fees.
{¶2} Philip and Jennifer married in 1994. Two children were born as issue of
the marriage. In 2007, Philip filed for divorce. Jennifer filed an answer and
counterclaim. The parties were granted a divorce in 2009. The divorce decree adopted
a separation agreement and shared parenting plan executed by the parties. The
divorce decree ordered Philip to pay spousal support to Jennifer in the amount of $334
per month, plus a two percent processing charge, for 84 consecutive months
commencing on February 5, 2009. The decree stated that all payments shall terminate
on January 31, 2016 or sooner upon the death of either party. Further, the court stated
that it “will not retain jurisdiction except to terminate [spousal support] * * *.”
{¶3} Jennifer failed to comply with various orders set forth in the divorce decree
and separation agreement. As a result, Philip filed numerous motions and supplements
to show cause and compel Jennifer’s compliance. Following a hearing, the magistrate
recommended that Jennifer be found in contempt of court and sentenced to 30 days in
jail with purge conditions. The magistrate also recommended awarding Philip attorney
fees. Jennifer filed objections to the magistrate’s decision. The court overruled her
objections and adopted the magistrate’s decision, with minor changes, on January 13,
2011. The court sentenced Jennifer to 30 days in jail, fined her $250, and awarded
Philip a judgment against Jennifer in the amount of $5,000 for his attorney fees. The
sentence was stayed on the condition that Jennifer purge herself of contempt by dates
specified in the order.
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{¶4} Jennifer continued to fail to abide by court orders, including the finding of
contempt order. Thus, Philip filed numerous motions to impose a jail sentence.
Following a hearing on November 1, 2011, the court concluded that Jennifer failed to
purge herself of contempt and did not present sufficient justification for failing to do so.
In a judgment entry dated November 2, 2011, the trial court sentenced Jennifer to 30
days in jail and suspended Philip’s spousal support obligation for 16 months
commencing December 1, 2011. The court ordered that the sum of $334 shall be
applied each month towards Jennifer’s obligation to pay Philip’s attorney fees as
previously ordered by the court. Jennifer filed an appeal and raises the following
assignments of error:
{¶5} “[1.] The trial court erred and abused its discretion in finding appellant in
contempt of court and imposing a thirty day jail sentence.
{¶6} “[2.] The trial court erred and abused its discretion in modifying the non-
modifiable spousal support award contained in the judgment entry of divorce.
{¶7} “[3.] The trial court erred and abused its discretion in attaching appellant’s
spousal support for the payment of a judgment/debt.”
{¶8} In her first assignment of error, Jennifer argues the trial court abused its
discretion in finding her in contempt of court and imposing a 30-day jail sentence.
Jennifer maintains it was impossible for her to fully perform and that she substantially
complied with the purge order to the best of her financial ability.
{¶9} A reviewing court must uphold the trial court’s decision in a contempt
proceeding absent a showing that the court abused its discretion. Nolan v. Nolan, 11th
Dist. No. 2007-G-2757, 2008-Ohio-1505, ¶28, citing Winebrenner v. Winebrenner, 11th
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Dist. No. 96-L-033, 1996 Ohio App. LEXIS 5511, *7 (Dec. 6, 1996), citing State ex rel.
Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75 (1991). The term “abuse of discretion” is
one of art, “connoting judgment exercised by a court, which does not comport with
reason or the record.” State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-
2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).
{¶10} The Second Appellate District also adopted a similar definition of the
abuse-of-discretion standard: an abuse of discretion is the trial court’s “failure to
exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. No.
09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev.2004) 11.
When an appellate court is reviewing a pure issue of law, “the mere fact that the
reviewing court would decide the issue differently is enough to find error (of course, not
all errors are reversible. Some are harmless; others are not preserved for appellate
review). By contrast, where the issue on review has been confined to the discretion of
the trial court, the mere fact that the reviewing court would have reached a different
result is not enough, without more, to find error.” Id. at ¶67.
{¶11} In Nolan, supra, this court further stated:
{¶12} “‘The party asserting a show cause motion has the burden to prove that a
breach has occurred by clear and convincing evidence.’ Winebrenner at *8. ‘Clear and
convincing evidence’ has been defined as ‘that measure or degree of proof which is
more than a mere ‘‘preponderance of the evidence,’’ but not to the extent of such
certainty as is required ‘‘beyond a reasonable doubt’’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established. Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 331 (1999).’
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{¶13} “‘A prima facie showing of civil contempt exists when the moving party * * *
produces evidence of nonpayment * * *. Then, the burden shifts to the alleged
contemnor to establish any defense he may have for nonpayment.’ Winebrenner,
supra, at *8. * * *
{¶14} “‘Impossibility of performance is a valid affirmative defense to a contempt
charge.’ Bertolone v. Bertolone, 11th Dist. No. 2001-L-001, 2001-Ohio-8733, citing
Bean v. Bean (1983), 14 Ohio App.3d 358, 363 * * *. ‘The party raising the affirmative
defense has the burden to prove that defense.’ Bertolone, at P3. * * *
{¶15} “Also, ‘* * * a person charged with contempt for the violation of a court
order may defend by proving that it was not in his power to obey the order.’ Courtney v.
Courtney (1984), 16 Ohio App.3d 329, 334 * * *.” Nolan at ¶29-32.
{¶16} Accordingly, Philip, as the moving party, had the burden of establishing a
breach of Jennifer’s obligations by clear and convincing evidence. In turn, the burden
shifted to Jennifer, as the contemnor, to establish any defense she may have had for
nonpayment. For the reasons that follow, upon review, we find the sentence imposed
by the trial court is within its authority and is not disproportionate to Jennifer’s conduct.
R.C. 2705.05(A)(1).
{¶17} In an order dated January 13, 2011, the court found Jennifer guilty of
contempt because of her failure to: (1) pay Philip $192, the amount seized by Fifth Third
Bank, (2) deliver the red shovel and a 36-inch Sony or Toshiba flat-screen television to
Philip’s attorney’s office, (3) pay the $340 balance for the children’s counseling to Dr.
Hill-Newby, (4) bring and keep the Fifth Third home equity loan current, and (5) list the
Downing Drive property for sale.
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{¶18} As stated previously, in its January 13, 2011 order, the court sentenced
Jennifer to 30 days in jail, fined her $250, and awarded Philip a judgment against
Jennifer in the amount of $5,000 for his attorney fees. The sentence was stayed on the
condition that Jennifer purge herself of contempt by (1) paying $192.06 to Philip within
30 days, (2) delivering to Philip’s attorney’s office within 10 days the red shovel and a
36-inch flat-screen Sony or Toshiba television, (3) paying within 30 days $340 to the
children’s counselor and paying in full all delinquent and past due charges on the Fifth
Third Bank home equity line of credit account, (4) signing a listing agreement within 10
days with real estate agent Greg Pernus at a price recommended by him, (5) and
paying $5,000 in attorney fees to Philip in monthly installments of $500 or more
beginning 30 days after entry of the court’s January 13, 2011 judgment.
{¶19} Jennifer alleges that she did “all that she was able to do,” and that she
substantially complied with the purge order. However, her testimony during the
November 1, 2011 hearing contradicts her allegations. During the hearing, Jennifer was
questioned about each of the items at issue and her compliance with the court’s
deadlines and specific directions regarding the same.
{¶20} With respect to each of the items enumerated above, Jennifer admits that
she did not timely comply with the court’s ordered deadlines. A television was delivered
to Philip’s attorney in September, 2011, nearly nine months after the date specified in
the court’s order. The television appeared to have been damaged, contrary to the
court’s order that it be in “good condition.” Jennifer testified that she mailed the shovel
on June 30, 2011, six months after the court’s deadline, and admitted she had
purchased it rather than it being the shovel identified in the divorce decree. Philip
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testified that he had attempted to remove the shovel from the home on the date and
time instructed by the court, but was prevented from doing so by Jennifer.
{¶21} With respect to the house, Jennifer was instructed to list it with a Howard
Hanna agent by the name of Greg Pernus at a price he recommended within 10 days of
the court’s January 13, 2011 order. However, Jennifer claimed during the hearing to
have signed a listing contract with Howard Hanna on October 23, 2011, with Ms. Mary
Sue Murray. Thus, not only did Jennifer not timely comply with the listing deadline, she
did not list the home for sale with the proper court-ordered agent nor at the price he
specified.
{¶22} Jennifer admits that she did not make the $192.06 payment to Philip, nor
did she pay any sum toward the $5,000 in attorney fees. Regarding the $340 balance
owed to the children’s counselor, Jennifer admitted that she did not timely make a lump
sum payment within 30 days of the court’s order, but instead, offered to pay the balance
owed in $5 installments. The offer was rejected by Dr. Hill-Newby.
{¶23} With respect to the Fifth Third Bank home equity loan, Jennifer testified
that she received notification from Fifth Third that the loan had been charged off as
delinquent as of August 4, 2011. Thus, Jennifer did not comply with the court’s order to
keep the loan current.
{¶24} Based on the foregoing record evidence, Jennifer failed to comply with the
terms, conditions, and specified dates in the purge order. Jennifer was required, but
failed, to make good faith efforts to comply with court orders. See, Campbell v. Pryor,
5th Dist. No. 2010CA00231, 2011-Ohio-1222, ¶26. While Jennifer testified that her
expenses exceeded her income, thus allegedly making it impossible for her to comply
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with the purge order, she admitted that had she sold the house, she would have had the
income necessary to meet the other financial obligations outlined in the purge order.
However, as noted, she was 10 months late in listing the house. Therefore, any
“impossibility” with compliance was created by Jennifer’s own actions.
{¶25} The evidence also showed that Jennifer used a portion of her income for
entertainment and her and the children’s athletic activities, which were not priority
expenditures in view of the court’s deadlines regarding her obligations to Philip. In sum,
Jennifer failed to purge herself of contempt and failed to present sufficient justification
for not doing so.
{¶26} Unsupported claims of financial difficulties are insufficient to satisfy a
contemnor’s burden. See Pettit v. Pettit, 8th Dist. No. 64582, 1993 Ohio App. LEXIS
6200, *12 (Apr. 23, 1993); See also, Rinehart v. Rinehart, 87 Ohio App.3d 325 (3d
Dist.1993). Because Jennifer failed to present a valid defense, the court properly found
that she failed to meet her burden. Moreover, some of her other failures were not a
function of financial inability. The court did not abuse its discretion in finding Jennifer in
contempt of court and imposing a 30-day jail sentence.
{¶27} Jennifer’s first assignment of error is without merit.
{¶28} In her second assignment of error, Jennifer contends that the trial court
abused its discretion in modifying the “non-modifiable” spousal support award contained
in the divorce decree, in violation of R.C. 3105.18(E). Jennifer alleges the court lacked
jurisdiction in modifying Philip’s monthly spousal support obligation for a period of 16
months.
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{¶29} R.C. 3105.18(E) states in part: “* * * if a continuing order for periodic
payments of money as spousal support is entered in a divorce * * * action that is
determined on or after January 1, 1991, the court that enters the decree of divorce * * *
does not have jurisdiction to modify the amount or terms of the * * * spousal support
unless the court determines that the circumstances of either party have changed and
unless * * *:
{¶30} “(1) In the case of a divorce, the decree or a separation agreement of the
parties to the divorce that is incorporated into the decree contains a provision
specifically authorizing the court to modify the amount or terms of * * * spousal support.”
{¶31} As stated, the divorce decree ordered Philip to pay spousal support to
Jennifer in the amount of $334 per month, plus a two percent processing charge, for 84
consecutive months commencing on February 5, 2009. The decree stated that all
payments shall terminate on January 31, 2016, or sooner upon the death of either party.
The court retained jurisdiction to terminate the spousal support award. Also, as
previously noted, the separation agreement incorporated into the divorce decree stated
that the court shall not retain jurisdiction to modify the spousal support award except to
terminate.
{¶32} Contrary to Jennifer’s assertions, the court did not modify the spousal
support award. Rather, in its November 2, 2011 judgment, the court suspended Philip’s
spousal support obligation for 16 months, instead ordering the sum of $334 to be offset
each month against Jennifer’s obligation to pay Philip’s attorney fees as previously
ordered by the court. Thus, the trial court did not order a modification of the support
obligation, but instead, ordered a setoff of the parties’ joint obligations to one another.
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{¶33} “The Ohio Supreme Court defined the right to setoff as ‘that right which
exists between two parties, each of whom under an independent contract owes a
definite amount to the other, to set off their respective debts by way of mutual decision.’”
Gibbons v. Southern Ohio Kitchens, 12th Dist. No. CA2003-07-072, 2004-Ohio-2907,
¶16, quoting Witham v. South Side Building & Loan Assn., 133 Ohio St. 560, 562
(1938).
{¶34} “A trial court’s authority to set off one judgment against another involving
the same parties is a well established equitable principle * * *.” Jones v. Jones, 4th Dist.
No. 07CA25, 2008-Ohio-2476, ¶2. ‘‘A set-off, whether legal or equitable, must relate to
cross-demands on the same right, and when there is mutuality of obligations.’’ Witham
at 562. “A court may order an ex-spouse’s current support obligations to be set off
against the other ex-spouse’s arrearages.” Krause v. Krause, 35 Ohio App.3d 18,
paragraph one of the syllabus (12th Dist.1987). See also Dilley v. Dilley, 11th Dist. No.
2010-G-2957, 2011-Ohio-2093, ¶12; Gallo v. Gallo, 11th Dist. No. 90-L-14-013, 1990
Ohio App. LEXIS 5697, *1-2 (offsetting support payments against arrearages between
spouses). “A trial court’s decision to set off the parties’ judgments is within the sound
discretion of the court and will not be disturbed on appeal absent an abuse of
discretion.” Krause at paragraph two of the syllabus.
{¶35} Jennifer exhibited a history of failing to comply with court orders. The
court credited future spousal support payments of Jennifer to effect the payment of
monies owed by Philip in order to set off their respective debts to one another. See
Witham at 562. The court did not abuse its discretion in ordering the offsetting of
Philip’s monthly spousal support obligation for a period of 16 months.
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{¶36} Jennifer’s second assignment of error is without merit.
{¶37} In her third assignment of error, Jennifer argues the trial court abused its
discretion in “attaching” her monthly spousal support and applying the payment to her
obligation to pay Philip’s attorney fees, in violation of R.C. 2329.66(A)(11).
{¶38} Jennifer characterizes the previously discussed offset as an attachment
under R.C. 2329.66(A)(11). However, the legal concept of “attachment” is inapplicable
to the facts presented.
{¶39} “Attachment has been defined as ‘a provisional auxiliary remedy, created
by statute, whereby a creditor can obtain a contingent lien on property of the debtor,
and thus have this property kept available to satisfy any judgment which he may recover
against the debtor ( * * *).’ Oleck, Debtor-Creditor Law, 30, Section 8. This court has
described attachment as ‘an execution before judgment (* * *).’” (Emphasis added)
Columbus Finance, Inc. v. Howard, 42 Ohio St.2d 178, 182, fn. (1975).
{¶40} In the present case, the court did not “attach” Jennifer’s earnings or
support to pay an unrelated debt. Neither Philip’s support obligation nor Jennifer’s
attorney fee obligation were used as security for a potential judgment. Rather,
judgment had already been ordered against Jennifer, and the trial court was merely
exercising its previously described right to satisfy a judgment already rendered using
the remedy of setoff of mutual obligations. As set forth in our analysis under Jennifer’s
second assignment of error, the trial court properly credited future spousal support
payments of Jennifer to effect the payment of monies owed by Philip.
{¶41} Jennifer’s third assignment of error is without merit.
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{¶42} For the foregoing reasons, appellant’s assignments of error are not well-
taken. It is the judgment and order of this court that the judgment of the Geauga County
Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.
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