Ferguson v. Van Boron ( 2018 )

[Cite as Boron v. Boron, 2018-Ohio-69.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
KORENA BORON FERGUSON ) CASE NO. 15 CO 0030
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
ERIC VAN BORON )
)
DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Columbiana County, Ohio
Case No. 2009-DR-0585
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty. Anne S. Margyaros
The Gallery Building
516 E. Washington St.
Chagrin Falls, Ohio 44022
For Defendant-Appellee: Atty. Christopher A. Maruca
The Maruca Law Firm, LLC
201 East Commerce Street
Suite 316
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Stephen A. Yarbrough, of the Sixth District Court of Appeals, sitting by
assignment. (Retired)
Dated: January 5, 2018
[Cite as Boron v. Boron, 2018-Ohio-69.]
WAITE, J.
{¶1} This is an appeal of the denial of a motion for contempt regarding the
real and personal property division in a 2013 divorce decree. Appellant Korena
Boron Ferguson appeals the judgment of the Columbiana County Court of Common
Pleas overruling her motion for contempt against Appellee Eric Boron. Appellant filed
a show cause motion in this matter on July 25, 2013, contending Appellee should be
held in contempt for failing to transfer real and personal property which had been the
subject of the final decree of divorce. Appellee filed a competing contempt motion on
September 9, 2013, alleging Appellant failed to return his personal property pursuant
to the same divorce decree. After three days of hearings, the trial court overruled
both parties’ motions, finding that both possessed unclean hands and contributed to
the contempt of the other party by their own conduct. The record reveals the trial
court did not abuse its discretion in overruling Appellant’s motion based upon the
unclean hands doctrine and the conduct of the parties. The judgment of the trial
court is affirmed.
Factual and Procedural History
{¶2} The parties were married on August 16, 1996 and had no children.
They obtained a decree of divorce on June 10, 2013. The parties had a long and
acrimonious history. Germane to this appeal, the final divorce decree set forth a
number of rights and obligations of both parties relative to the real and personal
marital property. The parties owned a number of parcels of real estate during the
marriage as well as a great deal of personal property, all of which had painstakingly
been addressed in the final decree. The real estate relevant to this appeal includes
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the marital home located at 2164 Pearce Circle, Salem, Ohio (“Pearce Circle”);
vacant land at 1074 Highway 25, Menlo, Iowa (“Iowa property”); Pure Gold Stables at
3225 and 3228 State Route 45, Salem, Ohio (“Pure Gold”); and a condominium at
1319 Pembrooke Drive #C, Salem, Ohio (“Pembrooke”).
{¶3} On July 25, 2013, Appellant filed her first show cause motion
requesting, among other things, that Appellee be held in contempt for (1) failing to
deliver a quit claim deed to Appellant transferring three parcels into her name; (2)
failing to transfer utilities on Pembrooke over to Appellant for uninterrupted service;
(3) failing to execute a cognovit note and mortgage deed in the amount of $590,000;
(4) failing to provide Appellant with paperwork to transfer her interest in relevant real
estate parcels; (5) failing to pay homeowner fees, utilities and taxes on Pembrooke;
and (6) failing to relinquish his interest in the Stifel Nicolaus retirement account.
{¶4} On September 9, 2013, Appellee filed a motion to show cause for
Appellant’s failure to transfer the Pure Gold parcel to him and failure to return
Appellee’s motorcycle.
{¶5} The first hearing was held on November 19, 2013. Appellant testified
regarding the allegations in her motion. Appellant asserted that she was able to
enter the Pembrooke property before the divorce trial with an appraiser in order to
ascertain the value of the property for rental purposes. Appellant testified that at the
time it needed only general cleaning and that no one was living in the condominium.
Appellant testified that she was not given keys to the property nor was a quit claim
deed for this property drafted by Appellee in a timely manner. Appellant testified that
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she finally gained access to this property in October of 2013. She immediately noted
damage to the property, including that it emanated a strong smell of cat urine, water
was running from the upstairs shower, there was no electric or gas service, and the
washer and dryer were missing. Appellant testified about the repairs and cleanup
she had performed on the property in order to prepare it for sale or rental.
{¶6} Regarding the taxes, mortgage and note, Appellant contended Appellee
had failed to pay real estate taxes that were due on any of the marital real estate up
to April 18, 2013, and that she paid the real estate taxes in order to avoid
delinquency. Appellant testified that the mortgages presented by Appellee were
several months late and contained multiple errors. As a result, she could not sign off
on the mortgages. In addition, Appellant testified that the cognovit note to be
executed by Appellee in favor of Appellant was also late and contained multiple
errors, including that the total amount was set forth as $500,015 when the final
divorce decree ordered that the amount of the note was to be $590,000. Finally,
Appellant testified that Appellee had not executed the requisite documents to transfer
her portion of the retirement account.
{¶7} Appellant filed an amended show cause motion on March 20, 2014,
alleging that Appellee had committed additional violations of the decree while the
earlier matters were pending before the trial court. In addition to the allegations in
the July 25, 2013 show cause motion, Appellant alleged that Appellee contracted to
sell the starting gate from the stables as part of a sale of the Pure Gold property.
This gate was Appellant’s personal property, and she incurred attorney fees in order
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to negotiate a return of the gate from the proposed buyers of the property. Appellant
also listed a number of debts that Appellee failed to pay as required by the decree,
including: electric, plumbing, condo association fees and real estate taxes on the
subject parcels.
{¶8} Two additional hearings on the motions were held on June 20, 2014
and October 6, 2014. At the June 20, 2014 hearing, Appellant testified that
Appellee’s motorcycle had been located on the back deck of the Pembrooke property
during the marriage and that it had remained there until Appellee picked it up just
prior to the hearing. Appellant stated that she paid the outstanding taxes on the Iowa
property as well as the second half of the 2012 real estate taxes on the Ohio
properties to prevent delinquency. Appellant also testified about discovering that the
sale of the Pure Gold Ranch included sale of the starting gate, which was to be
retained by Appellant. She testified that she was forced to hire legal counsel to get
back the gate once it was sold by Appellee. On cross-examination, Appellant
admitted that she waited more than ten months before attempting to regain this gate.
{¶9} On cross-examination, Appellee admitted that he signed a purchase
agreement for the Pure Gold property that included the starting gate prior to the
previous hearing without Appellant’s knowledge and while her name remained on the
deed. Appellee also testified that he still owed real estate taxes on the properties
and that he did not cooperate in transferring the Pembrooke property’s utilities to
Appellant. Appellee also testified that he took the washer and dryer from the
Pembrooke property.
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{¶10} The third and final hearing was held on October 6, 2014. Appellee
testified on direct examination that he had paid the outstanding electric and plumbing
bills. On cross-examination, Appellee acknowledged that all of the real estate taxes
had been paid but that he had no proof regarding which delinquent real estate taxes
had been paid by him and which by Appellant. Appellee also acknowledged that the
divorce decree did not specify that Appellant was to deliver his motorcycle. Appellee
also acknowledged that he never gave Appellant keys to the Pembrooke property
and that there were defects with the quit claim deed his counsel originally presented
to Appellant for execution. Appellant then presented expert testimony by Attorney
Virginia Barborak regarding the legal fees she incurred related to both the contempt
action and negotiation for the return of the starting gate.
{¶11} A magistrate’s decision was issued on November 6, 2014. The
magistrate determined that neither party had clean hands when they filed their
respective contempt motions and overruled these motions. The magistrate also
ordered each party to pay their own attorney fees. Appellant filed a motion for
findings of fact and conclusions of law on November 13, 2014. Appellee filed
objections to the magistrate’s decision on November 20, 2014. The court ordered
both parties to file proposed findings of fact and conclusions of law and the
magistrate issued a decision on January 21, 2015, again concluding that both parties
had unclean hands and overruling all of the contempt motions. On January 30, 2015,
Appellant filed her objections to the magistrate’s decision. On October 23, 2015, the
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trial court issued a final judgment entry, adopting the decision of the magistrate.
Appellant filed the instant appeal.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF
UNCLEAN HANDS TO BAR APPELLANT RELIEF WHEN THERE
WAS A LEGAL REMEDY AVAILABLE TO APPELLEE (CONTEMPT),
WHERE SHE WAS NOT GUILTY OF REPREHENSIBLE,
UNCONSCIONABLE CONDUCT AND WHERE ANY PERCEIVED
CONDUCT HAD NO RELATIONSHIP WITH THE CONTEMPT
ALLEGATIONS.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FAILING TO FIND APPELLEE IN
CONTEMPT AND/OR THAT HE FAILED TO COMPLY WITH THE
COURT'S ORIGINAL ORDERS.
{¶12} In Appellant’s first and third assignments of error she contends the trial
court erred in applying the “clean hands” doctrine and in failing to hold Appellee in
contempt.
{¶13} An appellate court will not reverse a trial court’s judgment regarding
contempt absent an abuse of discretion. State ex rel. Ventrone v. Birkell, 65 Ohio
St.2d 10, 11, 417 N.E.2d 1249 (1981). An abuse of discretion involves more than an
error of judgment; it implies that the court’s attitude is unreasonable, unconscionable,
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or arbitrary. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶14} Contempt proceedings can be either civil or criminal, although the
proceedings themselves are sui generis. Brown v. Executive 200, Inc., 64 Ohio St. 2d
250, 253, 416 N.E.2d 610 (1980). In civil contempt, the purpose of punishment is to
coerce the contemnor to obey a judicial order for the benefit of a third party. Carroll
v. Detty, 113 Ohio App. 3d 708, 711, 681 N.E.2d 1383 (1996). In a civil contempt
action 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 ordered.” Pugh v. Pugh, 15 Ohio St. 3d
136, 139, 472 N.E.2d 1085 (1984), quoting Brown at 253. The burden of proof for
the moving party in a civil contempt action is clear and convincing evidence. Carroll
at 711. Once the moving party establishes a prima facie case of contempt, the
burden shifts to the nonmoving party to establish a defense. Morford v. Morford, 85
Ohio App. 3d 50, 55, 619 N.E.2d 71 (1993). The nonmoving party must prove any
defense by a preponderance of the evidence. Jeffers v. Jeffers, 7th Dist. No. 07 BE
36, 2008-Ohio-3339, at ¶ 15.
{¶15} In the instant case, Appellant contends Appellee violated a number of
the provisions contained within the parties’ divorce decree, necessitating a finding of
contempt against him. For his part, Appellee argues that the trial court did not err in
failing to hold either party in contempt. Although multiple provisions of the divorce
decree provided a source of animosity, both parties used the provisions essentially
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as a weapon with which to aggravate the other. However, the parties ultimately fully
complied with the decree and a finding of contempt was not warranted.
{¶16} The parties’ final divorce decree, entered after protracted litigation,
evinced an attempt to thoroughly address each aspect of the parties’ divorce and to
anticipate and avoid the kind of battle in which the parties seem to nevertheless find
themselves embroiled. Appellant raised a number of issues in both her original and
amended show cause motions where she alleged Appellee had failed to comply with
the divorce decree. At the three hearings, Appellant presented testimony and
evidence that Appellee had either failed to comply or failed to comply in a timely
manner with his duties and obligations under the decree. Appellant also sought to
recover attorney fees incurred in pursuing resolution of the issues surrounding
Appellee’s alleged contempt.
{¶17} Appellee filed his own show cause motion alleging that Appellant
should be found in contempt for failing to return his motorcycle and for failing to
execute a quit claim deed to transfer the Pure Gold real estate. Appellee provided
testimony at hearing on those issues. Appellee has not appealed the trial court’s
judgment entry regarding the denial of his own motion to show cause.
{¶18} The trial court was not persuaded by any of the parties’ arguments and,
after three separate hearing dates, elected to overrule all motions, citing both parties’
unclean hands in the matter. The trial court concluded that through their own
individual actions, the parties exacerbated the issues raised in the contempt motions.
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The “clean hands doctrine” of equity requires that whenever a party
takes the initiative to set into motion the judicial machinery to obtain
some remedy but has violated good faith by [her] prior-related conduct,
the court will deny the remedy.
Bean v. Bean, 14 Ohio App. 3d 358, 363-364, 471 N.E.2d 785 (12th Dist.1983).
{¶19} A movant cannot obtain relief if the movant’s own conduct is
reprehensible. Marinaro v. Major Indoor Soccer League, 81 Ohio App. 3d 42, 45, 610
N.E.2d 450 (1991). The movant’s conduct “must constitute reprehensible, grossly
inequitable, or unconscionable conduct, rather than mere negligence, ignorance, or
inappropriateness.” Wiley v. Wiley, 3d Dist. No. 9-06-34, 2007-Ohio-6423, at ¶ 15.
In order to bar a movant’s claims, the movant must be at fault in relation to the
nonmovant and in relation to the subject matter on which the movant’s claims are
based. Trott v. Trott, 10th Dist. No. 01 AP-852, 2002-Ohio-1077.
{¶20} In Marinaro, the court held that the movant had engaged in
reprehensible conduct by taking bribes to intentionally lose soccer games. Id. at 45.
The court concluded that his unclean hands would bar him from enjoining the league
from suspending him, even if the suspension was imposed in a manner that did not
completely comply with the collective bargaining agreement. Id.
{¶21} Here, the magistrate’s decision dated November 6, 2014 noted:
The Court specifically finds that neither party had clean hands when
they filed their contempt motions. All motions for Contempt are
therefore OVERRULED. Each party shall pay their own attorney fees.
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Id. at p. 2.
{¶22} In the November 6, 2014 entry the magistrate did not specifically
delineate the manner in which each party had unclean hands as it pertained to each
alleged contempt, but noted:
For a variety of reasons, neither party chose to promptly complete the
tasks necessary to fulfill their obligations under the divorce decree.
Deeds and mortgages were not promptly prepared, signed or delivered
by either party. [Appellee] did not cooperate in turning over ownership
of the condo to [Appellant]. [Appellant] did not cooperate in turning over
the motorcycle to [Appellee]. Counsel exchanged numerous
correspondences regarding the exchange of assets, and the parties
remained at a standoff. Neither party wanted to be the first to comply,
so neither party complied. It was the classic standoff with neither party
showing any willingness to blink.
The only good news is that by the last hearing date on these Motions
(November 6, 2014) both parties were in substantial compliance with
the terms of the final decree. All real estate had been transferred; Pure
Gold had been sold; [Appellee’s] total spousal support obligation was
paid in full; [Appellant] had possession of the condo; [Appellee] had
possession of the motorcycle, and all debts are paid.
Id. at pp. 1-2.
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{¶23} Appellee filed objections to the magistrate’s decision on November 20,
2014. Appellee contended the magistrate erred in ordering Appellee to reimburse
Appellant for Iowa real estate taxes because the taxes were paid as of the date of the
April 2013 final divorce hearing.
{¶24} Before filing her own objections, Appellant filed a request for findings of
fact and conclusions of law and the trial court ordered the parties to submit proposed
findings and conclusions pursuant to Civ.R. 53(D)(3)(ii). On January 21, 2015 the
magistrate issued a decision containing findings of fact and ordering that the
“Conclusions of Law remain as set forth in the Magistrate’s Decision and Judgment
Entry filed on November 6, 2014.” (1/21/15 Mag. Dec., p. 4.) The trial court adopted
the magistrate’s decision on the same day, January 21, 2015.
{¶25} Appellant filed objections to the January 21, 2015 magistrate’s decision
on the basis that the court: (1) failed to prepare proper findings of fact and
conclusions of law; (2) erred in failing to hold Appellee in contempt; (3) erred in
finding Appellant had not complied with the divorce decree; (4) erred in finding the
attorneys had communicated but did not coordinate the transactions needed to
complete obligations under the decree; and (5) erred in finding Appellant was
required to remove the starting gate from the Pure Gold property.
{¶26} A non-oral hearing on both parties’ objections was set for May 29,
2015. In its final judgment entry dated October 23, 2015, the trial court addressed all
of the objections. Regarding Appellant’s argument that the magistrate simply
referred to the previous conclusions of law contained in the November 6, 2014
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magistrate’s decision, the court held that there was “substantial compliance” with the
civil rules when the magistrate’s decisions of November 6, 2014 and January 21,
2015 were considered in totality with the entire trial court record.
{¶27} Regarding the magistrate’s finding that both parties had failed to comply
with the terms of the divorce decree before the judgment entry was even filed, the
final hearing where the agreement was read into the record occurred on April 30,
2013, but the judgment entry was not filed and time stamped until June 10, 2013.
The court concluded that by this date, the parties had already failed to comply with
various provisions. The magistrate observed that the divorce decree “clearly
obligates [Appellant] to make available to [Appellee] a 1998 Yamaha V Star
Motorcycle (Motorcycle) within fourteen days of April 18, 2013.” (10/23/15 J.E., p. 5.)
Despite multiple letters and attempts to recover the motorcycle, Appellant refused to
make the motorcycle available and testified that she had not contacted Appellee
about the motorcycle or allowed him to pick it up. The court noted that Appellant
admitted she had thrown away motorcycle rims and other personal property
belonging to Appellee, contrary to the terms of the divorce decree. Based on these
two infractions, the trial court concluded that Appellant violated the decree.
{¶28} Regarding attorney communication, the court held that the parties’
attorneys failed to communicate about the parties’ obligations under the decree.
Although Appellant testified that she was not aware of communications by her
attorney on her behalf, and her counsel stated that she did not receive certain
communications, the court stated that these were included in her file and that “certain
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documents had been prepared and/or recorded by co-counsel for [Appellant]” but
because of the lack of communication, Appellant’s counsel was unaware of these
documents. (10/23/15 J.E., p. 7.) The court concluded that the failure of counsel to
communicate effectively resulted in a failure to timely complete the matters required
under the decree.
{¶29} Appellant also objected to the magistrate’s finding that Appellant failed
to cooperate and that the parties were at a standoff. The court held:
[Appellant] did not make the Motorcycle available to [Appellee] and she
disposed of his personal property. The record also supports that the
parties were at a standoff. Due to the lack of communication and
cooperation from [Appellant], [Appellee] reciprocated. [Appellee] did
not communicate or cooperate with [Appellant] regarding the keys to
the Pembrooke condominium or transferring the utilities into her name.
[Appellee] did not discuss with [Appellant] the insurance he had
obtained on Pure Gold. [Appellant] incurred the cost of changing the
locks at the Pembrooke condominium for reasons including that she
never asked [Appellee] for the keys and because she failed to respond
to the letters from counsel for [Appellee] about the Motorcycle.
(10/23/15 J.E., p. 8.)
{¶30} Appellant objected to the magistrate’s failure to address each of her
allegations of contempt. The court noted that the magistrate had considered all the
evidence and testimony before him. Appellant did not have clean hands due to her
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conduct regarding the motorcycle and Appellee’s personal property, and Appellee did
not have clean hands because of his failure to cooperate or communicate regarding
the Pembrooke property keys, transferring the Pembrooke utilities, or obtaining
insurance on the Pure Gold property. The court noted that as neither party had clean
hands, the magistrate was not required to further address the contempt motions.
{¶31} Regarding Appellant’s objection about the starting gate at Pure Gold,
the trial court acknowledged that it had been awarded to Appellant in the divorce, but
observed that she waited several months before attempting to retrieve it. There was
no evidence that Appellee attempted to remove it or prevent her from taking the
starting gate. The court concluded Appellant knew Appellee had the right to
negotiate a sale of the Pure Gold property, and there was no evidence that Appellee
purposely included the gate in the terms of sale. In fact, Appellee had communicated
to his counsel that Appellant could pick it up prior to the sale. Appellee did not
secretly sell the gate or withhold the sale proceeds from Appellant. It was also noted
that Appellant ultimately negotiated a sale price and sold the starting gate to the
buyer of Pure Gold for $5000, which was her asking price. (10/23/15 J.E., p. 10.)
The court concluded it was Appellant’s conduct that led to the starting gate’s
inclusion in the sale of Pure Gold because she failed to promptly claim her property.
Based on this, the court concluded her unclean hands prevent Appellant from
recovering attorney fees.
{¶32} Regarding Appellant’s objection to the real estate expenses and
obligations for the various Ohio parcels and the Iowa parcel, the trial court concluded
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the language in the decree was “confusing” and the parties’ counsel disagreed on its
meaning.
{¶33} Article Seven of the decree contains agreed language relating to debts,
and provides:
Husband shall be solely responsible for and indemnify Wife for any and
all debts associated with the horses (Article Five), real estate
expenses/obligations (Article Eight) including but not limited to any and
all real estate taxes for first half of 2012 (and payable in 2013) for all
real property including Pearce Circle, Pembroke [sic], Pure Gold,
Pennsylvania properties and Iowa, all condominium or homeowners
association fees through April 18, 2013, any debt owed to Ellyson
Plumbing and Jillian Electric, and all business liabilities, taxes, debts,
obligations (Article Six).
(6/10/13 J.E., p. 15.)
{¶34} While the court agreed that the language of the agreement
unambiguously required Appellee to pay the debts and obligations as specified, the
agreement “does not include a specific date or time by which payment must be
made.” (10/23/15 J.E., p. 13.)
{¶35} In Article Nine of the decree, Appellant was to retain the Iowa and the
Pembrooke properties following divorce. Regarding the taxes and utilities, the
language reads, “[w]ife shall be solely responsible for any and all utilities, real estate
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taxes, homeowners/hazard insurance from April 18, 2013 forward.” (6/10/13 J.E., p.
17.)
{¶36} The court noted that although the decree contains a date certain for the
commencement of duties and obligations (April 18, 2013), it does not require the
parties to perform any of the duties or obligations at issue by an established
deadline. Further, both parties took advantage of the lack of a deadline by failing to
act in a timely manner. Therefore, the court reasoned that Appellant’s arguments
Appellee failed to perform by a certain deadline were not well founded and Appellant
failed to establish by clear and convincing evidence that Appellee was in contempt.
{¶37} We must note that the court incorrectly stated the decree did not
contain a deadline for performance. Article Nine, relating to the transfer of the Iowa
and Pembrooke properties to Appellant by Appellee, was to be completed within
thirty days of April 18, 2013. Similarly, Appellee was to ensure that the utilities for
Pembrooke were transferred to Appellant within thirty days of April 18, 2013. Finally,
in exchange for Appellant executing a quit claim deed for the Pure Gold property,
Appellee was to execute a cognovit promissory note and mortgage deed to Appellant
in the amount of $590,000. Final payment on the note was due and owing no later
than October 18, 2014. Thus, the decree did contain specific deadlines and dates for
performance which were not adhered to. Most of these dates fell before the parties’
final decree was even filed. The court clearly weighed Appellee’s failure to perform,
here, with Appellant’s failure to timely remove the starting gate from the Pure Gold
property, make Appellee’s motorcycle available to him, and her disposal of Appellee’s
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personal property. While the decree did not provide a date by which Appellant was to
remove her gate from the Pure Gold property and there was no provision obligating
Appellant to deliver the motorcycle, the court was not dealing with true “one for one”
bad behavior of the parties. However, a reviewing court does not reweigh evidence
of this nature and a trial court has great discretion in this area.
{¶38} Regarding the failure by Appellee to timely execute a cognovit note and
mortgage on the Pure Gold property as well as his failure to execute and deliver quit
claim deeds for the Iowa, Pembrooke and Pearce Circle properties, the trial court
concluded Appellee was not in contempt. Utilizing the clean hands doctrine, the trial
court stated: “There is a connection between the conduct of [Appellant] and the
claimed failures of [Appellee]. One cannot be viewed without the other.” (10/23/15
J.E., p. 15.) In addition to the fact that the parties did not communicate, the court
noted that Appellant did not sign the quit claim deed to the Pure Gold property
presented to her, did not communicate and cooperate regarding the motorcycle’s
return and disposed of some of Appellee’s personal property. Hence, she came into
the contempt proceedings with unclean hands. Similarly, the trial court concluded
that Appellee’s failure to transfer the Pembrooke utilities and the keys to the
Pembrooke property, as well as failing to timely deliver deeds to the Iowa,
Pembrooke and Pearce Circle properties also showed that he did not come into the
contempt proceedings with clean hands. The trial court reasoned that both parties’
conduct in effect cancelled each other out, precluding a finding of contempt for either
party.
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{¶39} As noted, the clean hands doctrine, as it is known, dictates that where a
party’s own conduct is reprehensible, grossly inequitable, or unconscionable, that
party is not entitled to recover in a contempt proceeding. Wiley, supra, at ¶ 15.
{¶40} This record does reflect that both parties acted in a manner intended to
thwart and agitate the other and further complicate an already acrimonious
relationship. Appellee’s misconduct was directly contrary to the timelines and
dictates of the decree and Appellee presented no evidence to justify his failure to act
in a timely manner. Appellee admitted that real estate taxes were due and owing on
the properties and he had not made payment prior to the final contempt hearing.
(6/20/14 Tr., p. 45.) Appellant presented evidence that the mortgage and cognovit
note presented by Appellee in November of 2013, prior to the first contempt hearing,
did not comply with the court’s order, as it contained a reservation of mineral rights,
listed the wrong address and secured only $500,015, rather than the $590,000
required in the decree. (11/19/13 Tr., pp. 32, 66.) Finally, the quit claim deed for the
Pure Gold property presented by Appellee to Appellant was defective in that it listed
the wrong county and state, contained an incorrect address and included a
reservation of mineral rights. (11/19/13 Tr., pp. 31-32.)
{¶41} The record does show that the trial court’s reference to Appellant’s
failure to sign the deeds presented to her in a timely fashion cannot be deemed
misconduct where the deeds were defective. Moreover, the trial court’s reference to
Appellant’s failure to communicate and cooperate regarding the motorcycle does not,
standing alone, appear to rise to contemptible behavior. Evidence at the hearing
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showed, however, that Appellant deliberately failed to respond to letters from
Appellee’s attorney regarding exchanging the motorcycle for keys to the Pembrooke
properties. While Appellant’s conduct regarding the motorcycle is not directly tied to
the transfer of real estate and payment of real estate taxes by Appellee, both parties
deliberately used the tools at their disposal to cause hardship to the other. The clean
hands doctrine applies, here, and the court has wide discretion in determining
matters of contempt. The trial court did not abuse its discretion in overruling the
contempt motions under this doctrine. Appellant’s first and third assignments of error
are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN FAILING TO ADDRESS EACH
PRONG OF APPELLANT'S MOTIONS TO SHOW CAUSE/MOTION
FOR CONTEMPT.
{¶42} In her second assignment of error Appellant contends the trial court
erred in failing to address all of the assertions in her motion for contempt.
{¶43} The purpose of civil contempt is to ensure the dignity of the courts and
the fair administration of justice. Pugh, supra, at 139. As noted, the party bringing an
action for contempt has the burden of producing clear and convincing evidence of
contempt by the other party. Id.
{¶44} A review of the trial court’s judgment entry reveals that each of
Appellant’s concerns regarding contempt were addressed, either individually or
collectively. Utilizing the clean hands doctrine as noted above, the trial court stated
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in addressing each issue raised by Appellant’s objections that it was Appellant’s own
conduct as well as the conduct of Appellee that lead to its decision. The court also
took note of the fact that all outstanding issues under the decree had been
substantially completed by the final hearing in this matter to determine that a
contempt finding was not warranted. Appellant’s second assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN FAILING TO ORDER APPELLEE TO
PAY DAMAGES AS A RESULT OF HIS FAILURES TO COMPLY
WITH THE FINAL DECREE INCLUDING ATTORNEY FEES AND
EXPENSES.
{¶45} In her fourth assignment of error, Appellant contends the trial court
erred in failing to order Appellee to pay damages for violating the divorce decree,
including her expenses and attorney fees.
{¶46} Appellant sought reimbursement for real estate taxes, insurance,
utilities, condo fees, repairs to Pembrooke, rental revenue lost and attorney fees
associated with the contempt action.
{¶47} The parties’ divorce decree provided for damages in various contexts
for failure to comply. Article Seven and Article Seventeen of the parties’ separation
agreement, incorporated into the decree, provides language as to indemnification for
Appellee’s default in paying the debts listed. Article Seven concerns real estate
expenses/obligations, including real estate taxes for first half of 2012; real estate
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taxes for all other real property owned by the parties; all condo and homeowners
association fees through April 18, 2013; and plumbing and electric debts. The court
concluded that Appellant’s contention she was entitled to reimbursement for paying
real estate taxes that were Appellee’s obligation was not established by clear and
convincing evidence.
Indemnity shifts the entire loss from one who has been compelled to
make payment to the plaintiff to another who is deemed responsible for
reimbursing the full amount. The right to indemnity exists when the
relationship between the parties requires one to bear the loss for the
other. This right may arise from common law, contract, or in some
cases, statutes.
Portsmouth Insurance Agency v. Medical Mutual of Ohio, 188 Ohio App. 3d 111,
2009-Ohio-941, 934 N.E.2d 940, ¶ 16 (4th Dist.). Indemnity agreements are
interpreted in the same manner as other contracts. Id. at ¶ 18. The true nature of an
indemnity relationship is determined by the intent of the parties expressed within the
language of the agreement. Id.
{¶48} The parties’ agreed language provided that Appellee was solely
responsible, and was to indemnify Appellant, for real estate taxes incurred on all of
the parties’ properties through April 18, 2013, including any and all real estate taxes
from the first half of 2012. (6/10/13 J.E., p. 15.) Appellant had the burden of
presenting evidence that she paid real estate taxes that were the sole responsibility
of Appellee. The trial court concluded that Appellant failed to meet that burden. At
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the first of the three contempt hearings, Appellant testified that the real estate taxes
on the properties had not yet been paid. Appellant requested that the trial court order
Appellee to pay the taxes due. (11/19/13 Tr., pp. 26-27.) At the second hearing,
Appellant testified that she paid the real estate taxes for the second half of 2012, and
presented copies of tax bills showing payment of delinquent taxes for the second half
of 2012 with the first half remaining due. Appellant sought reimbursement for the
taxes she had paid and payment for the first half of 2013, as Appellee had failed to
transfer the properties to her by that time. (6/20/14 Tr., pp. 6-8). However, as the
court noted, Appellee was only responsible for the real estate taxes through the first
half of 2012, which were payable in 2013. Therefore, Appellant’s request for
reimbursement for taxes incurred the second half of 2012 and beyond was contrary
to the language of the separation agreement. Appellant also failed to demonstrate
that she had paid any condominium association fees or other related expenses on
the properties before April 18, 2013. Appellee’s responsibility under the decree
ended on that date. Therefore, the trial court did not abuse its discretion in finding
Appellant was not entitled to reimbursement under the indemnity provision of the
decree.
{¶49} In Article Seventeen there appears a clause entitled “Costs Upon
Default/Damages” which reads:
If either the Husband or the Wife should default in the performance of
any term or provision of this Agreement, the purpose of the agreement
would be frustrated. It is each party’s intent that neither should be
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required to incur any expenses associated with the enforcement of his
or her rights under this agreement because the cost/expense thereof
would substantially detract from the benefits intended for each of them.
Therefore, if the non-defaulting party deems it necessary to engage
counsel and/or institute legal proceedings to effect or compel
performance of any provision of the Agreement, in such event the Court
hearing such proceeding may in its discretion award reasonable
attorney fees for all legal services rendered to and on behalf of such
complaining party relating thereto including but not limited to those
incurred to initiate such proceeding and those incurred with respect to
pre-proceeding and post-proceeding legal services. The parties shall
make documented efforts to gain the other’s compliance prior to
incurring any legal fees.
In addition, the parties agree that either party that defaults and is found
in contempt of court in the performance of any obligation set forth in the
Agreement shall pay all “damages” associated with said default.
“Damages”, as the term is used herein and elsewhere in this
Agreement, shall mean all loss associated with the party’s default
including but not limited to liability, expenses, taxes, charges, principal,
interest, court costs, penalties, and legal fees both in defense of any
action and in prosecution of any action.
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In addition, the parties agree that each party shall fully indemnify the
other for all obligations that they are responsible to perform as set forth
in this Agreement. Nothing contained in this Article shall be construed
as a release of any obligation of either party as set forth in the
Agreement.
(6/10/13 J.E., pp. 21-22.)
{¶50} Appellant sought damages for utilities, repairs and condo fees relating
to the Pembrooke property for Appellee’s failure to transfer the property by the
deadline contained in the decree. Appellant seeks: (1) repair costs to the condo, as
she alleges it was left in disrepair and Appellee failed to promptly transfer the
property to her; (2) payment for all insurance, condo fees, taxes and utility expenses
for the time period in which she was awaiting transfer of the property; (3) payment for
rental revenues lost as a result of Appellee’s failure to timely execute the deed to
Pembrooke; and (4) attorney fees and expenses incurred as a result of Appellee’s
failure.
{¶51} At hearing, Appellant testified that she brought in an appraiser to
assess the rental value of the Pembrooke property prior to the divorce. She stated
that when she finally obtained access to the property in September of 2014, she
immediately noticed the smell of cat urine and that the washer and dryer were
missing, the upstairs shower was running, and the gas and electric service had been
turned off. (11/19/13 Tr., pp. 13-17.) She testified that the carpets had to be
replaced, the cement flooring underneath resealed, the furnace repaired and the
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washer and dryer replaced. (11/19/13 Tr., pp.14-17.) Appellant presented evidence
of damages, including $1,684.96 for repair of the flooring and replacement of
carpeting, repair of the heating unit in the amount of $840.52, and condo association
fees of $530 for the months of May through August of 2013 because she alleges she
did not have access to the property. Appellant also seeks reimbursement for real
estate taxes for the six months she allegedly could not use the property and a loss of
rental value at $575 per month for the five months she claims she was denied access
to the property, totaling $2,875.00.
{¶52} The trial court concluded Article Seventeen provides that only a
nondefaulting party may recover damages, and that Appellant was also in default of
portions of the decree by her own conduct. Further, the trial court concluded
Appellant presented no evidence of her efforts to gain compliance before incurring
attorney fees, and that her own unclean hands prevent her from recovering any
damages under the terms of the separation agreement.
{¶53} Looking to the language utilized by the parties in the agreed portion of
the decree, it is clear that the parties intended to be unambiguous in setting forth the
terms for obtaining damages for default. The acrimonious nature of the years-long
divorce followed by a multi-day trial evidenced a need for such language in the event
of default. The definition of “damages” within the decree is broad, but not all
encompassing. There is no provision for lost rental payments. Similarly, the
Pembrooke washer and dryer are personal property belonging to Appellee, and this
language cannot be used to recover alleged damage for loss.
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{¶54} Appellant’s first motion to show cause was filed just a few weeks after
the journalization of the decree, leaving little doubt that not much communication or
effort at obtaining compliance was made by Appellant before seeking redress in the
courts. As noted, she provided no evidence of the efforts made to seek compliance
from Appellee with regard to the areas in which she sought relief. Without reaching
out in a good faith attempt to resolve the issues, and sitting idly by while tax bills
became delinquent and property began to fall into disrepair, Appellant cannot with
clean hands seek redress within the courts.
{¶55} Regarding Appellant’s assertion that she is entitled to recover attorney
fees incurred in pursuing her contempt action, Article Seventeen specifies that
attorney fees may be awarded in any action for contempt at the court’s discretion.
Any trial court may, within its discretion, include an award of attorney fees as part of
costs taxable to a party found in civil contempt. Planned Parenthood Assoc. of
Cincinnati, Inc. v. Project Jericho, 52 Ohio St. 3d 56, 67, 556 N.E.2d 157 (1990).
{¶56} Appellant provided expert testimony at hearing from Attorney Virginia
Barborak regarding the reasonableness of the attorney fees she incurred in pursuing
her contempt action. Appellant asserts that her attempts to obtain compliance prior
to seeking redress in court were many and lengthy, but does not refer to any
evidence in the record to support such a claim, nor was any evidence of her attempts
to obtain compliance prior to filing her show cause motion presented at hearing.
Again, it is telling that Appellant filed her show cause motion just weeks after the
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journalization of the divorce decree. We cannot conclude based on the record before
us that the trial court abused its discretion in failing to award Appellant attorney fees.
{¶57} Thus, the record reflects that the trial court did not err in denying
Appellant damages. Appellant’s fourth assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT'S FINDINGS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶58} In her fifth assignment of error, Appellant contends the trial court’s
judgment is against the manifest weight of the evidence. Appellant provides a list of
instances in her appellate brief where she essentially disagrees with the trial court’s
findings on a number of evidentiary issues.
{¶59} As noted, a trial court’s decision in a contempt proceeding will not be
disturbed absent an abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio
St.2d 10, 11, 417 N.E.2d 1249 (1981). The trial court is in the best position to judge
the credibility of testimony because it can observe the witness’s gestures and voice
inflections. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 461 N.E.2d 1273
(1984). A reviewing court will not reverse a trial court’s factual findings that are
supported by some competent, credible evidence. C.E. Morris Constr. Co. v. Foley
Constr. Co., 54 Ohio St. 2d 279, 280, 376 N.E.2d 578 (1978).
{¶60} The Ohio Supreme Court has defined “contempt of court” as
“disobedience of an order of a court. It is conduct which brings the administration of
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justice into disrespect, or which tends to embarrass, impede or obstruct a court in the
performance of its functions.” Windham Bank v. Tomaszcyk, 27 Ohio St. 2d 55, 271
N.E.2d 815 (1971), paragraph one of the syllabus.
{¶61} “Weight of the evidence concerns the ‘inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other.’ ” Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 12. In
considering a challenge to the manifest weight of the evidence, the reviewing court
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in the evidence the trial
court clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered. In re A.S., 7th Dist. No. 11 JE
29, 2012-Ohio-5468, ¶ 10.
{¶62} In weighing the evidence, a reviewing court must be mindful of the
presumption in favor of the finder of fact. Id. In determining whether the trial court's
decision is manifestly against the weight of the evidence, “every reasonable
intendment and every reasonable presumption must be made in favor of the
judgment and the finding of facts.” Eastley at ¶ 21. “If the evidence is susceptible of
more than one construction, the reviewing court is bound to give it that interpretation
which is consistent with the verdict and judgment, most favorable to sustaining the
verdict and judgment.” Id.
{¶63} The record contains a variety of instances of bad faith and misconduct
on the part of both parties, including Appellant. She failed to return Appellee’s
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property, disposed of property, and failed to communicate regarding completion of
tasks pursuant to the decree. The evidence presented demonstrated that several
letters were sent to Appellant through her counsel in order to attempt to complete
certain transactions, although it is also clear that Appellee also willfully dragged his
feet in completing required tasks.
{¶64} Appellant did not communicate with Appellee regarding the status of his
motorcycle or his other personal property. Appellee filed his own contempt motion
regarding the status of the motorcycle, which the trial court also overruled. Appellant
disposed of Appellee’s personal property without attempting to communicate with
Appellee about this property. Counsel for both parties proved ineffectual in assisting
the parties in communicating during this time period and between the hearing dates
on the pending contempt motions. Although Appellant presented testimony from
Attorney Barborak regarding attorney fees, there was no evidence that Appellant
made attempts at obtaining compliance before seeking redress, as required in the
decree. Although Appellant complained about the sale of her starting gate, she failed
to collect her property for a period of several months and her dilatory action
contributed to the inclusion of the gate in the sale of the Pure Gold property.
Appellant did not present evidence that demonstrated Appellee committed waste or
destruction of the Pembrooke property to warrant recovery for damages. The trial
court ultimately held that, as both parties had unclean hands, the contempt motions
were overruled. Appellant disagrees with the factual findings made by the trial court
based on the evidence the parties presented, and with the legal conclusions the court
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draws. A review of the record reveals that the trial court, after three separate hearing
dates with testimony from both parties and the submission of all evidence,
painstakingly went through the record and determined that unclean hands precluded
either party from recovering for contempt. The trial court was well within its discretion
in deciding that Appellee should not be held in contempt for his actions. As such, the
judgment of the trial court was not against the manifest weight of the evidence.
Appellant’s fifth assignment of error is without merit and is overruled.
{¶65} In conclusion, the parties, through their poor and intentionally
antagonistic behavior, reached a stalemate in which each appeared to be
unwavering in their refusal to cooperate with even the agreed terms of their own
divorce decree. The parties behaved obstinately with little to no communication
between counsel on any issues. While it is clear that Appellee did not comply with all
of his duties and obligations, by the third hearing, both parties had finally complied,
albeit much later than required. It is also clear that the parties and their counsel had
a difficult time reaching any sort of agreement on basic communication, let alone
adhering to the terms of the divorce decree. As such, we cannot conclude the trial
court abused its discretion in overruling all of the parties’ show cause motions. The
judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
Yarbrough, J., concurs.