Josefsczyk v. McCray ( 2024 )

[Cite as Josefsczyk v. McCray, 2024-Ohio-3434.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOSH JOSEFSCZYK, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ERIN MCCRAY, : Case No. 2023CA00165
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Family Court
Division, Case No. 2022DR144
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 4, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LORRIE FUCHS AARON KOVALCHIK
3974 Wales Ave. NW 116 Cleveland Ave NW, Suite 808
Massillon, Ohio 44646 Canton, Ohio 44702
Stark County, Case No. 2023CA00165 2
Baldwin, J.
{¶1} The appellant appeals the decision of the Stark County Family Court finding
her in contempt and awarding the appellee attorney fees.
STATEMENT OF THE FACTS AND THE CASE
{¶2} The appellee, Josh Josefczyk, filed a complaint for divorce against appellant
Erin McCray on February 23, 2022. The trial court conducted a temporary order hearing
on June 14, 2022, and issued temporary orders which provided, inter alia, that the
appellant shall pay the mortgage on the marital residence, as well as the utilities, as she
was continuing to reside in the same.
{¶3} The appellee, who made the July 2022 mortgage payment, became aware
that the appellant had failed to make the mortgage payments as ordered. On February
22, 2023, he filed a motion for contempt against the appellant to which he attached an
affidavit and documentation confirming that the mortgage payments had not been paid
for August 2022 through January 2023, and that a payment of $9,798.99 was due in order
to bring the mortgage current. The mortgage was solely in the appellee’s name, and the
failure to make payments negatively impacted his credit.
{¶4} The matter proceeded to trial on March 1, 2023, during which the trial court
addressed the appellee’s motion for contempt. During trial, evidence was presented
regarding the marital residence, regarding both the source of the initial down payment
and the monthly payments.
{¶5} The trial court issued a Final Entry Decree of Divorce on May 2, 2023. With
regard to the source of the down payment, the trial court found that the appellee had a
pre-marital separate property interest in the marital residence of $13,216.22.
Stark County, Case No. 2023CA00165 3
{¶6} Further, the appellant admitted that she had not made the monthly
mortgage payments as ordered. The trial court found that “[d]espite having notice of this
obligation, and the deficiency, the [appellant] has willfully failed to make the payments
when able to do so, causing harm to the [appellee’s] credit and foreclosure.”
{¶7} With regard to the contempt issue specifically, the trial court found that the
appellant was in contempt for the violation of two court orders:
The first contempt, filed June 29, 2022, was in response to the
[appellant] denying [the appellee] parenting time the week of June 21, 2022.
The [appellant] did in fact knowingly violated [sic] the court ordered
parenting time. She is found to be guilty of willful contempt for this violation.
The second contempt, filed on February 22, 2023, alleges that the
[appellant] failed to pay the monthly mortgage for the marital residence from
July 2022 to present. The [appellant] admits to not making the payments.
Evidence was presented to verify that during his period of time, the
[appellant] received two tax refund checks which would have come close to
bringing the accounts current, however, she applied those funds elsewhere.
The [appellant] is found to be guilty of willful contempt for violation
the temporary order of this court.
{¶8} The trial court therefore found the appellant to be guilty of willful contempt,
and held:
The [appellant] is found to be guilty of two counts of contempt for
violations of this court’s orders. She is sentenced to 10 days in the Stark
County Jail on each count. Said sentence is suspended on condition of no
Stark County, Case No. 2023CA00165 4
further violation of this court’s orders IN addition, the [appellant] is ordered
to pay to the [appellee] partial attorney fees for work related to these
contempt motions the sum of $500.00 within 30 days of the filing of this
order.
Further, the trial court ordered the parties to divide by QDRO the marital portion of
their pension and deferred-benefit plans. Finally, to achieve an equal division of marital
property, the court ordered the Husband to pay the Wife $14,372 from his annuity.
{¶9} Within days of the May 2, 2023, divorce decree, the appellee’s counsel sent
the appellant’s counsel two letters in an effort to ensure her cooperation in selling the
home to avoid foreclosure. The appellant, even after being found in contempt of court,
failed to make a single payment, and failed to sell the marital residence. As a result,
appellee was forced to file a third motion for contempt on June 15, 2023.
{¶10} In his third motion for contempt, the appellee submitted that the appellant
had violated the trial court’s Final Entry Decree of Divorce as follows: she failed to
cooperate with the listing of the marital home for sale; failed to pay the attorney fees to
the appellee’s counsel as ordered; failed to pay her share of the QDRO fees; failed and
refused to make the house payment for May and June of 2023; and, failed to make the
sewer payment on the marital home. Because service of process had been problematic
in connection with the prior motions for contempt, the appellee hired a private process
server to ensure effective service of the June 15, 2023, Motion. The appellee moved the
court for “a finding of contempt, imposition of sentence, an award of attorney fees and
costs in an amount to be determined by the Court, and for such other relief as the Court
may deem appropriate.”
Stark County, Case No. 2023CA00165 5
{¶11} The trial court conducted a show cause hearing on December 6, 2023,
during which the appellant admitted to all of her failures to comply with the Final Entry
Decree of Divorce. The appellant admitted that she had failed to make the mortgage
payments as ordered; failed to pay the $500.00 in appellee’s attorney fees as ordered;
failed to pay the sewer bill as ordered; and failed to pay her share of the QDRO expenses.
In addition, although the home was in foreclosure due to the appellant’s failure to make
the mortgage payments, the appellee continued in his efforts to sell the home, even if just
a short sale, in an effort to recuperate as much equity as possible. Evidence was
presented that the appellant failed to cooperate in effectuating the sale of the marital
residence. The home was thus lost to foreclosure. The appellee’s credit suffered as a
result. The appellee asked the trial court during the hearing to award him either his
$3,465.00 in attorney fees incurred for the third motion for contempt, or for “whatever the
Court deems appropriate in this case.”
{¶12} The trial court, after hearing testimony from both parties, found that the
appellant engaged in blatant and wanton disregard for court orders, refusing to pay the
mortgage on the marital residence since the June 14, 2022, temporary orders hearing.
The court found that the appellant’s actions caused the appellee irreparable harm due to
the loss of the home, equity, separate property interest, and credit. The court found further
that, despite her refusal to pay the mortgage, the appellant “enjoyed the use of the home
for a full year, left it in disrepair and disregarded the [appellee’s] attempts to mitigate the
damages by listing the home for sale.” The court ordered:
The [appellant] is found to be guilty of willful contempt of this court’s
orders. Because the martial residence is now lost to foreclosure, no further
Stark County, Case No. 2023CA00165 6
remedial provisions are available to the court. The [appellant’s] conduct has
resulted in irreparable harm. Accordingly, the court issues the following
sentence for contempt:
1. The court hereby orders imposition of the suspended ten (10) day
sentence (for not paying the mortgage obligation). The [appellant]
is ordered to report to the Stark County Jail on January 17, 2024
at 9:00 A.M. for commencement of this sentence. She is to
receive credit for two (2) days served.
2. An additional ninety (90) day sentence is ordered for this third
contempt finding. This sentence is suspended on condition the
[appellant] within 30 days of his order relinquish her interest of
$14,372.00 from the [appellee’s] annuity and pay to the [appellee]
the sum of $12,162.25 attorney fees.
So ordered.
{¶13} The appellant filed a timely appeal, and sets forth the following two
assignment of errors:
{¶14} “I. THE TRIAL COURT’S FINDING OF CONTEMPT WAS NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
{¶15} “II. THE TRIAL COURT ABUSED ITS DISCRETION CONCERNING THE
AWARD OF ATTOTNEY [SIC] FEES.”
{¶16} The appellant submits that the trial court abused its discretion when it found
by clear and convincing evidence that the appellant’s actions constituted contempt of
court, and in award $12,162.25 in attorney fees. We disagree.
Stark County, Case No. 2023CA00165 7
STANDARD OF REVIEW
{¶17} The appellant’s assignments of error are interrelated, and as such we
address them together.
{¶18} An appellate court’s standard of review regarding a finding of contempt is
limited to a determination of whether the trial court abused its discretion. Sloat v. James,
2009-Ohio-2849, (5th Dist.) ¶ 19. Thus, 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 (1983).
{¶19} The burden of proof in a civil contempt action is proof by clear and
convincing evidence. Sloat, supra, at ¶ 20. The determination of “clear and convincing
evidence” is within the discretion of the trier of fact. Id. The trial court's decision should
not be disturbed as against the manifest weight of the evidence if the decision is
supported by some competent and credible evidence. C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279 (1978). A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the witnesses and
evidenced submitted before the trial court. Geary v. Geary, 2015-Ohio-259 (5th Dist.).
ANALYSIS
{¶20} The uncontroverted evidence presented at the December 6, 2023, show
cause hearing established that the appellant admitted she failed to make the mortgage
payments as ordered; failed to pay the $500.00 in appellee’s attorney fees as ordered;
failed to pay the sewer bill as ordered; and failed to pay her share of the QDRO expenses.
{¶21} In addition, evidence was presented that, although the home was in
foreclosure due to the appellant’s failure to make the mortgage payments, the appellee
Stark County, Case No. 2023CA00165 8
continued in his efforts to sell the home, even if just a short sale, in an attempt to recover
as much equity as possible; and, that the appellant failed to cooperate in effectuating the
sale of the marital residence. Further, the evidence established that the appellant left the
home in disrepair. Testimony revealed that there was trash everywhere; there was a wall
with no drywall on it; the pool had no water in it; there was no electric or water; and all
utilities appeared to be shut off. The home, and any equity that could have been derived
from its sale, was lost to foreclosure. The appellee’s credit was destroyed.
{¶22} The trial court did not abuse its discretion when it found by clear and
convincing evidence that the appellant was in contempt of court. Furthermore, in light of
the evidence before the trial court that established the appellee’s pre-marital separate
property interest in the marital residence to be $13,216.22, the fact that the appellee was
forced to file three motions for contempt in this matter, and the fact that the appellee
requested damages on the third motion to compel for “attorney fees and costs in an
amount to be determined by the Court and for such other relief as the Court may deem
appropriate,” we cannot say that the trial court abused its discretion in awarding the
appellee damages in the sum of $12,162.25. Accordingly, the appellant’s assignments of
error numbers one and two are without merit and are overruled.
Stark County, Case No. 2023CA00165 9
CONCLUSION
{¶23} Based upon the foregoing, the judgment of the Stark County Court of
Common Pleas, Family Court Division is hereby affirmed.
By: Baldwin, J.
Gwin, P.J. concur.
Hoffman, J. concurs in part
and dissents in part.
Stark County, Case No. 2023CA00165 10
Hoffman, J., concurring in part, and dissenting in part
{¶24} I concur in the majority’s decision to overrule Appellant’s first assignment of
error thereby affirming the trial court’s finding of contempt against Appellant.
{¶25} However, I respectfully dissent from the majority’s disposition of Appellant’s
second assignment of error. I believe the majority mischaracterizes the trial court’s award
of $12,162.25 to Appellee as “damages” (See Maj. Op. at ¶22). The trial court awarded
the $12,162.25 to Appellee as attorney fees for his successful (third) motion to hold
Appellant in contempt during the December 6, 2023 show cause hearing. Appellee
specifically asked for $3,465.00 as attorney fees “or whatever the court deemed
appropriate.” I would find the trial court abused its discretion in awarding Appellee more
attorney fees than specifically requested.