Briggs v. Moelich , 2012 Ohio 1049 ( 2012 )

[Cite as Briggs v. Moelich, 2012-Ohio-1049.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97001
TRACY A. BRIGGS
PLAINTIFF-APPELLANT
vs.
JEFFREY M. MOELICH
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-324032
BEFORE: S. Gallagher, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: March 15, 2012
ATTORNEY FOR APPELLANT
Joseph Bancsi
The Goodwin Bryan Building
22050 Mastick Road
Fairview Park, OH 44126
ATTORNEY FOR APPELLEE
Pamela J. MacAdams
Morganstern, MacAdams & DeVito Co., LPA
623 West St. Clair Avenue
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Plaintiff-appellant, Tracy A. Briggs, appeals the judgment of the Cuyahoga
County Court of Common Pleas, Division of Domestic Relations, that found her in
contempt of court and granted attorney fees to defendant-appellee Jeffrey M. Moelich.
For the reasons stated herein, we affirm.
{¶2} Briggs and Moelich were divorced on November 2, 2009. As part of the
divorce proceedings, the parties entered a number of agreed judgment entries involving
the division of property. Subsequent to the judgment entry of divorce, Moelich filed a
motion to show cause and motion for attorney fees. Briggs filed a motion to dismiss and
a motion to show cause, along with motions for attorney fees.
{¶3} Following a three-day hearing, the court magistrate granted Moelich’s
motion to show cause in part and granted his motion for attorney fees. The magistrate
found Briggs was in contempt of court for failing to comply with the court’s orders
relating to the sale of the former marital home, the award of personal property to Moelich,
and the delivery of the boat title and a spare car key to Moelich. No contempt was found
in relation to the Fidelity accounts and the payment of taxes and insurance premiums.
The magistrate sentenced Briggs to 30 days in jail, subject to certain purge conditions.
The order included a $10,000 award of attorney fees.
{¶4} Briggs’s motion to dismiss was granted in part as to matters where no
contempt was found. The magistrate also granted Briggs’s motion to show cause in part,
only as to the necessity to pay the real estate tax bill associated with the former marital
residence. Her motions for attorney fees were denied.
{¶5} Briggs filed objections to the magistrate’s decision that were overruled by
the trial court. The court adopted the magistrate’s decision as modified to reflect an
attorney’s fee award to Moelich of $12,000. Briggs’s contempt was subject to the
following purge conditions:
1. Delivering to Mr. Moelich at [Briggs’s] expense the items of
personal property awarded to [Moelich] that remain in her possession,
which were not moved on April 23, 2010.
2. Paying Mr. Moelich $3,848.49 for [Briggs’s] interference with
the sale of the marital property.
3. Obtaining a replacement title for the Four Winns boat and
delivering the title to Mr. Moelich.
4. Paying Mr. Moelich attorney fees in the amount of $12,000.
5. All the above shall be completed within 45 days of the
journalization of this order.
{¶6} The court ordered that Briggs’s failure to comply with the purge conditions
will result in a judgment to Moelich in the amount of $15,848.49, which was in addition
to the thirty-day jail sentence that would be imposed.
{¶7} Briggs timely filed an appeal with this court. As an initial matter, we note
that there is a final appealable order in this matter. We have previously recognized that
the mere adjudication of contempt of court is not a final appealable order when the court
defers the imposition of punishment for the contempt. Cleveland Civ. Serv. Emps. Assn.
v. Cleveland, 8th Dist. No. 93922, 2010-Ohio-4352, ¶ 58; Cooper v. Cooper, 14 Ohio
App.3d 327, 328-329, 471 N.E.2d 525 (8th Dist.1984). While some cases have found
there is no final appealable order when the opportunity to purge the contempt is pending,
that principle does not apply when the contempt order includes the imposition of a penalty
or a sanction. See Davis-Wright v. Wright, 4th Dist. 09CA1, 2010-Ohio-3984, ¶ 7-8;
Check v. Rossetti, 5th Dist. No. 2004-CA-332, 2005-Ohio-3463, ¶ 3; Noll v. Noll, 9th
Dist. No. 03CA008216, 2003-Ohio-5358, ¶ 9-11. Here, the trial court’s order includes
an order of contempt and the imposition of a penalty and a sanction, i.e., a 30-day jail
sentence and a monetary sanction for Briggs’s failure to comply with the purge conditions
within 45 days of the judgment. Under these circumstances, there is a final appealable
order.
{¶8} Briggs raises nine assignments of error for our review. For clarity of review,
we shall address them out of order and together where appropriate.
{¶9} A lower court’s finding of contempt will not be reversed absent an abuse of
discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 573 N.E.2d 62(1991). In order to find an “abuse of discretion,” we must determine that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} Pursuant to R.C. 2705.02, the disobedience of, or resistance to, a court order
may be punished for a contempt. Thus, a party’s failure to comply with the property
division in a divorce decree is subject to contempt proceedings. Chojnowski v.
Chojnowski, 8th Dist. No. 81379, 2003-Ohio-298, ¶ 19. A prima facie case of contempt
is shown where the divorce decree is before the court along with proof of the alleged
contemnor’s failure to comply with the decree. Dzina v. Dzina, 8th Dist. No. 83148,
2004-Ohio-4497, ¶ 63. “A person charged with contempt for violation of a court order
may defend by proving it was not in his power to obey the order.” Peach v. Peach, 8th
Dist. Nos. 82414 and 82500, 2003-Ohio-5645, ¶ 37.
{¶11} Civil contempt sanctions, which are remedial or coercive in nature, are often
employed to compel compliance with the court order and are imposed for the benefit of
the complainant. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 2001-Ohio-15, 740
N.E.2d 265. A sanction imposed for a civil contempt must afford the contemnor the
opportunity to purge the contempt. Carroll v. Detty, 113 Ohio App.3d 708, 712, 681
N.E.2d 1383 (4th Dist.1996). A trial court also has the discretion to award reasonable
attorney fees against a party found in civil contempt. Peach at ¶ 44. Delayed
compliance before a contempt hearing does not prevent an award of attorney fees.
Walton v. Davis, 10th Dist. No. 96APF11-1503, 1997 WL 358860 (June 26, 1997);
Roach v. Roach, 61 Ohio App.3d 315, 323-324, 572 N.E.2d 772 (8th Dist.1989).
{¶12} Briggs’s first assignment of error challenges the trial court’s finding of
contempt for failing to deliver a spare set of car keys to Moelich. Pursuant to the parties’
“in court agreement” attached to the divorce decree, Briggs was to provide the keys or
replacement costs by November 15, 2009. While Briggs concedes that she had the keys
and delivered the keys a week late, she claims that Moelich did not suffer any injury by
her noncompliance with the court’s order.
{¶13} We recognize that Briggs had delivered the keys before Moelich filed his
motion to show cause and that no damages were incurred. However, because Briggs
failed to timely comply with the trial court’s order, we cannot say the court abused its
discretion in finding Briggs in contempt. Briggs’s first assignment of error is overruled.
{¶14} Briggs’s second assignment of error challenges the finding of contempt for
failing to deliver the boat title to Moelich. Pursuant to the parties’ “in-court agreement”
attached to the divorce decree, Briggs was to deliver the boat title to Moelich by
November 15, 2009. Also, pursuant to an agreed judgment entry, Briggs was to execute
“all paperwork necessary to transfer her interest” in the boat to Moelich. The title was
never delivered to Moelich.
{¶15} A party must take all reasonable steps within her power to comply with the
court’s order and, when raising the defense of impossibility, must show “categorically and
in detail” why she is unable to comply with the court’s order. Lahoud v. Tri-Monex, Inc.,
8th Dist. No. 96118, 2011-Ohio-4120, ¶ 54.
{¶16} Briggs testified that she searched through the paperwork in her house and
could not find the title. The boat was located at Moelich’s cottage in Michigan, where
Moelich was staying. To Briggs’s knowledge, the boat was titled to Moelich. However,
Moelich testified that he believed the boat was jointly titled. Further, there was no
showing concerning the execution of paperwork necessary to effectuate a transfer of
Briggs’s interest in the boat.
{¶17} The record reflects that there was simply a lack of evidence to demonstrate
whose name the boat was titled in or what efforts were required for obtaining a
replacement title. Because Briggs failed to meet her burden of showing she was unable
to comply with the court’s order, the trial court did not abuse its discretion by finding her
in contempt. Briggs’s second assignment of error is overruled.
{¶18} Briggs’ sixth assignment of error challenges the finding of contempt for
interfering with Moelich’s removal of his personal property from the marital residence.
{¶19} The parties’ in-court agreement set forth the division of personal property.
It allowed for a “walk through” by Moelich, accompanied by Briggs’s attorney, to tag or
list items for removal within ten days. Moelich was permitted to remove his personal
property on or before November 25, 2009. He was to provide three dates from which
Briggs could chose one for the movers.
{¶20} Moelich did not avail himself of the walk-through. After an initial date
change, the agreed date for the move was November 18, 2009. On the move date,
Moelich parked at the curb of the home to wait for the movers. Briggs called the police
because Moelich was allegedly violating a no-contact order that had been issued in Rocky
River Municipal Court. Moelich was arrested, and the scheduled move did not proceed.
Thereafter, the parties agreed to other arrangements for allowing Moelich to remove his
personal property.
{¶21} On April 23, 2010, Moelich’s son, Robert, and his friend arrived with a
rented truck. Briggs instructed Robert to load items that were not on Moelich’s list.
Ultimately, all the property on the list was not loaded onto the truck. Unaware that the
movers were heading to Michigan that night, Briggs offered the movers the opportunity to
return the next morning to complete the removal.
{¶22} The trial court recognized that the parties’ in-court agreement did not
provide for Moelich’s presence during the move. However, the court recognized that
Briggs failed to cooperate and interfered with the removal of the property on April 23,
2010. The court found Briggs in contempt for interfering with Moelich’s retrieval and
removal of his personal property awarded in the divorce.
{¶23} Briggs argues that the court order provided for a removal by November 25,
2009, and that no legal obligation existed for removal at a later date. However, a
court-ordered modification was not necessary because the parties agreed to the later date.
Further, the date served to effectuate the court’s order for the division of personal
property. The trial court did not abuse its discretion in finding Briggs interfered with
Moelich’s retrieval of his personal property awarded in the divorce. Briggs’s sixth
assignment of error is overruled.
{¶24} Briggs’s seventh assignment of error claims that the trial court denied her
due process of law when it denied her the right to recross-examine the realtor, Gloria
Hardington. We find no merit to this argument.
{¶25} It is within the trial court’s discretion to allow the opportunity to
recross-examine a witness. State v. Watson, 8th Dist. No. 90962, 2009-Ohio-2120, ¶ 62;
State v. Faulkner, 56 Ohio St.2d 42, 46, 381 N.E.2d 934 (1978). Briggs fails to show
any new subject matter was presented during redirect-examination, and she has not
demonstrated any prejudice. Accordingly, we find that the trial court did not abuse its
discretion, and we overrule the seventh assignment of error.
{¶26} Briggs’s eighth assignment of error challenges the finding of contempt for
interfering with and impeding the sale of the former marital home, as well as the damages
awarded.
{¶27} In an agreed judgment entry, the parties agreed to the sale of the former
marital home. They agreed to list the home with realtor Gloria Hardington of Howard
Hanna Realty and to follow her recommendations concerning the listing price and price
reductions “in order to sell the property in a timely fashion.”
{¶28} Evidence was presented showing that Briggs acted in resistance to the
court’s order. There was evidence showing that she failed to cooperate with the realtor,
disagreed with price reductions, removed fliers from a box attached to a lawn sign,
removed the key from the realtor’s lock box, removed the for-sale sign, and cancelled
showings with interested buyers. The trial court found that “much of the resistence
stemmed from the recommended reductions to the listing price of the home.”
Hardington testified that she believed Briggs wanted to sell the home, but on her own
terms. Upon the expiration of the six-month listing agreement, Briggs was to select a
successor agent from a list of two agents provided by Moelich. Briggs delayed in her
selection, causing a lapse in the listing. The parties ultimately accepted an offer on the
house of $365,000. The initial listing was in the mid $400,000s.
{¶29} The trial court found Briggs’s actions interfered with, and potentially
impeded, the sale of the home. Upon our review, we find no abuse of discretion by the
trial court in finding Briggs in contempt.
{¶30} The court ordered Briggs to pay $3,848 for her interference with the sale of
the home. The amount represented the amount of the mortgage Moelich paid above the
$2,000 spousal support obligation he would have when the home sold. While Briggs
argues this was an improper modification of spousal support, the record reflects that the
amount was to reimburse Moelich for losses he sustained as a result of the contempt
violation. Finding no abuse of discretion, we overrule Briggs’s eighth assignment of
error.
{¶31} Briggs’s third, fourth, and fifth assignments of error challenge the trial
court’s award of attorney fees on matters for which she was not held in contempt. Briggs
argues that a lump sum award was improper and the fees should have been segregated
according to the separate claims of contempt. Briggs’s ninth assignment of error
challenges the trial court’s modification of the magistrate’s decision to increase the
amount of attorney fees awarded from $10,000 to $12,000. Briggs fails to cite any
authority in support of her argument.
{¶32} A trial court has discretion to award attorney fees in a divorce action.
Lemke v. Lemke, 8th Dist. No. 94557, 2011-Ohio-457, ¶ 38. R.C. 3105.73(B) provides:
(B) In any post-decree motion or proceeding that arises out of an action for
divorce, * * * the court may award all or part of reasonable attorney’s fees
and litigation expenses to either party if the court finds the award equitable.
In determining whether an award is equitable, the court may consider the
parties’ income, the conduct of the parties, and any other relevant factors
the court deems appropriate, but it may not consider the parties’ assets.
{¶33} Additionally, we have recognized that “trial courts have discretion to award
reasonable attorney’s fees against a party found guilty of civil contempt, even in the
absence of a statute specifically authorizing the award.” Peach, 8th Dist. Nos. 82414
and 82500, 2003-Ohio-5645, at ¶ 44, citing Chojnowski, 8th Dist. No. 81379,
2003-Ohio-298, at ¶ 22.
{¶34} The trial court found that Briggs was in contempt and that Moelich incurred
attorney fees to enforce the orders of the court. Moelich’s attorney testified to an hourly
rate of $325 per hour and to her rate being commensurate to the hourly rate of family law
attorneys in the community with similar credentials. Counsel testified to the contentious
nature of the litigation, which resulted in increased fees. Counsel’s fee statement, which
highlighted the time spent on issues related to the contempt, was submitted to the court.
The court noted that not all of the fees on the fee statement were related to the issues of
the motion to show cause.
{¶35} Moelich sought fees in the amount of $19,835 for 61.03 hours of time spent
on the contempt-related issues. Though the fee statement did not precisely identify
which particular contempt claim related to each entry, counsel indicated that the issues
were not treated that way and that the issues were dealt with together.
{¶36} The magistrate recognized that there were multiple contempt issues and the
parties were in trial multiple days. The magistrate found that the fees sought were
reasonable, considered the ability to pay of the parties, and limited the attorney fees award
to $10,000. Upon independent review, the trial court judge modified the amount to
$12,000.
{¶37} Our review of the record indicates that the court assessed the reasonableness
of Moelich’s attorney fees in relation to the contempt. We find no abuse of discretion in
the trial court’s award of $12,000 in attorney fees. Briggs’s remaining assignments of
error are overruled.
{¶38} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR