Palnik v. Crane , 2019 Ohio 3364 ( 2019 )

[Cite as Palnik v. Crane, 2019-Ohio-3364.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MATTHEW PALNIK, :
Plaintiff-Appellant, :
No. 107400
v. :
KRISTEN CRANE, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
RELEASED AND JOURNALIZED: August 22, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357079
Appearances:
Lipson O’Shea Legal Group, and Michael J. O’Shea, for
appellant.
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nichole
A. Cruz, for appellee.
EILEEN T. GALLAGHER, P.J.:
Plaintiff-appellant, Matthew Palnik (“Husband”), appeals the
decision of the Cuyahoga County Court of Common Pleas, Division of Domestic
Relations, finding him in civil contempt of a temporary support order. He raises the
following assignments of error for review:
1. The temporary support order was not based upon Ohio law and
violated federal law.
2. The trial court’s failure to hold a modification hearing in the time
required by Ohio Civ.R. 75(N) violated Ohio law.
3. Ohio law permits the modification of a temporary support order at
anytime.
4. There was no proof that the show cause motions were served
according to Ohio Civ.R. 4.1, et seq.
5. Defendant’s contempt motions and the evidence introduced at the
hearing, did not comply with Loc.R. 20 of the Cuyahoga County
Domestic Relations Court.
6. Husband clearly demonstrated an inability to completely comply
with the temporary support order.
7. The trial court placed impossible and/or unconscionable terms on
Husband to purge the contempt.
After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand for proceedings consistent with this opinion.
I. Procedural History
Husband and defendant-appellee, Kristen Crane (“Wife”), were
married on November 25, 2006. They have two minor children together. In May
2015, Husband filed a complaint for divorce and a motion for temporary support,
with an accompanying affidavit. In response, Wife filed an answer brief and a
counter motion for temporary support, with an accompanying affidavit.
The trial court held hearings on July 1, 2015, October 2, 2015, and
October 29, 2015, to address the issue of temporary support. The matter was
scheduled to resume on April 6, 2016, to provide Husband the opportunity to re-
cross-examine Wife “on the issues associated with the temporary support and
temporary parenting plan.” However, on March 28, 2016, Husband filed a motion
waiving his right to present further evidence on the issue of temporary support. The
motion further requested the trial court to issue the “long-overdue temporary
support and temporary parenting orders.”
On April 25, 2016, the trial court issued a temporary support order.
In relevant part, the trial court found that “[Husband] is a self-employed attorney
and for the purposes of temporary support [Husband]’s gross annual income from
all sources is $360,000 and [Wife] is a W-2 employee and her annual gross income
is $80,000.” Upon consideration of the factors set forth under R.C. 3105.18(C)(1),
including “the disparity in income” and the “need to maintain status quo,” the court
ordered Husband to “pay spousal support to [Wife] in the sum of $9,000 per month,
plus 2% processing.” In addition, the trial court ordered Husband to pay child
support in the amount of $2,222 per month. Finally, the court ordered Husband to
pay Wife certain expenses, including (1) household expenses for cable television,
telephone service, and internet service; (2) Wife’s lease payments for her vehicle; (3)
work-related childcare for the children; (4) Wife’s auto-insurance payments; and (5)
health insurance coverage.
On April 28, 2016, just three days after the temporary support order
was issued, Husband filed a motion to modify the temporary support order. In the
motion, Husband argued the trial court’s judgment was not based upon his current
income and expenses for the year 2016. In an attached affidavit, Husband estimated
that his 2016 income would be approximately $100,000 lower than the amount
relied on by the trial court. Thus, Husband alleged, “given [his] current income and
expenses,” that he “[did] not have the income to comply with the Divorce Case April
25, 2016 temporary support order and also support myself.”
In October 2017, the trial court held a two-day hearing to address
Husband’s motion to modify the temporary support order. Ultimately, the trial
court “dismissed” the motion to modify temporary support, finding that Husband
(1) failed to authenticate the 2016 tax returns referenced in support of his
modification request; and (2) failed to demonstrate a change of circumstances.
Following the trial court’s judgment, Husband filed a second motion to modify the
temporary support order on November 1, 2017.
During the pendency of the litigation, Wife filed separate motions to
show cause on June 27, 2016, September 16, 2016, February 2, 2017, and May 1,
2018. In each motion, Wife alleged that Husband had failed to abide by the terms
of the April 25, 2016 temporary support order. Hearings were held to address Wife’s
pending motions to show cause on May 7, 2018, and May 11, 2018.
At the hearing, defense counsel called Husband as a witness as if on
cross-examination. At the onset of his testimony, Husband was presented with
copies of the four motions to show cause. At that time, plaintiff’s counsel objected
to the reference to the show-cause motion filed on May 1, 2018. Counsel maintained
that the motion was not properly before the court because it had not been served in
compliance with the Ohio Rules of Civil Procedure. Following a brief discussion on
the record, the trial court overruled the objection and permitted defense counsel to
question Husband about the specific allegations set forth in the May 1, 2018 show-
cause motion.
Regarding the arguments set forth by Wife in each motion to show
cause, Husband testified that he was aware of the temporary spousal support order
and its mandates. He agreed with defense counsel that he knowingly failed to
comply with the specific requirements of the court order. Husband was presented
with records from the Cuyahoga County Child Support Enforcement Agency
(“CSEA”), which reflected that he owed arrearages in the amount of $159,960.80.
Husband did not dispute the record or the amount reflected as due and owing.
Wife provided testimony in support of her show-cause motions.
When presented with copies of her motions to show cause, Wife stated that Husband
continuously failed to comply with the court’s order to pay certain
“extracurricular/medical” expenses and various household expenses, including
telephone, internet, and cable bills, child-care expenses, and monthly lease
payments for Wife’s personal vehicle. In addition, Wife testified that Husband failed
to make all required child support and spousal support payments. She conceded
that Husband had been paying “approximately $3,000 a month.” However, she
emphasized that he still owes an unpaid balance of support in the amount of
$159,960.80. Wife opined that Husband “has the ability to pay the court order,” and
that a finding of contempt for Husband’s noncompliance was appropriate because
Husband would never comply with the court order “unless there’s a penalty.”
In the midst of the cross-examination of Wife, counsel for Husband
attempted to challenge the merits of the underlying temporary support order.
Reiterating many of the arguments previously raised in the dismissed motion to
modify, counsel argued that the temporary support order is “fundamentally
inequitable in violation to a certain degree of federal law.” Counsel asserted that
Husband was “essentially [made] to pay close to 130, 140,000 dollars a year” when
“the evidence will show he made just around 200,000 [dollars] in 2016.” Counsel
further argued that the insufficiency of the temporary support order was relevant to
the contempt proceedings and his current ability to comply with the order, stating:
Now why this is all important, Judge, for the purposes you have what
we’re here for today because Ms. Wife and/or her lawyer seek to have
this man incarcerated, Judge, found in contempt because he cannot
meet an order that the math will clearly show you, and had in fact,
shown you he cannot meet, that essentially consumes more than 50
percent of his gross pretax income.
When given the opportunity to respond, defense counsel challenged Husband’s
credibility, suggesting that his total earnings “could be subject to manipulation”
because Husband is “a self-employed person.”
Upon resuming cross-examination, Wife stated that she had no
knowledge of Husband’s income for the year 2016. However, she conceded that
prior to the hearing on Husband’s motion to modify the temporary support order,
Husband’s personal accountant, Frank Krempasky, sent her a draft of Husband’s
2016 tax return in order to determine whether the parties wished to file their taxes
jointly or individually. Wife testified that she told Krempasky that she “did not have
faith in the information reported on a federal and state return and therefore needed
to speak with [her] attorney.” Wife further conceded that CSEA records reflect that
from June 1, 2016 to May 6, 2018, Husband paid $131,185.32 towards his temporary
support obligation.
Husband then testified on his own behalf. Husband provided
extensive testimony concerning his employment as an attorney and the
unpredictable nature of his annual income under the payment structure utilized by
his law firm. Husband explained that pursuant to his partnership agreement, when
one of the partners “draws against [their] respective operating account,” the other
partner is entitled to 20 percent of those funds. Husband was presented with the
parties’ federal and state joint-tax returns for the years 2014 and 2015. For the year
2014, Husband confirmed that Wife’s salary was $80,000, and that his Schedule C
income was $13,259, and his Schedule K-1 income was $373,112. For the year 2015,
Husband confirmed that Wife’s salary was $80,000, and that his Schedule C income
was $3,512, and his Schedule K-1 income was $360,015.
When questioned about the spike in his income during 2014 and
2015, Husband explained that he inherited approximately 400 workers’
compensation cases from a retired colleague. He indicated that at the time the
temporary spousal support was issued in April 2016, his annual income at that time
was no longer $360,000. In an effort to corroborate Husband’s testimony, counsel
introduced Husband’s 2016 federal tax return. Viewing his “Two Year Comparison
Report” for the years 2015 and 2016, Husband testified that while his total
“partnership/S Corp. income” for the year 2015 was $360,015, his total
“partnership/S Corp. income” for the year 2016 was only $183,177 — a reduction of
income in the amount of $176,838. Taking in consideration the increase in
Husband’s “business income” of $26,013 in 2016 versus his “business income” of
$3,512 in 2015, the exhibit reflects that Husband’s “total income” income was
$363,574 in 2015, and $209,252 in 2016 — a difference of $154,322. (Plaintiff’s
exhibit No. NNN-2.) Counsel also introduced Husband’s 2016 state tax return,
which designated Husband’s adjusted gross income as being $120,870. (Plaintiff’s
exhibit No. OOO.) Husband testified that the 2016 tax returns accurately reflected
his income for the year 2016 and that the exhibits reflected the “actual tax return[s]”
he filed for the year 2016.
At the time of the contempt hearing, Husband had yet to file his 2017
tax returns. However, counsel introduced a draft IRS Schedule K-1 for the year 2017
that reflected Husband’s “self-employment earnings” in the amount of $248,055.
(Plaintiff’s exhibit No. SSS.)
Husband confirmed that the CSEA records accurately represented the
amount of spousal support payments he has made since the temporary spousal
support order was issued. Thus, Husband agreed that he has not paid the full
amount of support required by temporary support order. In an effort to explain why
he has not been able to comply with the court’s order, Husband testified, in relevant
part:
Well, one, I don’t make currently the money I made in 2014 and 2015.
I haven’t made that kind of money since 2016. It was a little over
$200,000—and 2017 it’s going to go up, but it’s probably going to be
about $250,000, somewhere around there give or take. * * * And
[2018] will probably be similar in that range too, between 200 or 210
or the 250, and I don’t know.
Husband asserted that due to the reduction in his annual income, he
could not renew his lease agreement and was forced to move in with his parents.
Husband stated that he made the decision to move in with his parents because he
wanted to comply with his “ethical obligation to try and meet the order.” In light of
these circumstances, Husband testified that he filed the motion to modify the
temporary support order and the motion to stay because he “couldn’t afford to pay
it all.”
During his cross-examination, Husband agreed that for the year
2016, he paid a total of $44,339.32 towards his support obligation. He further
agreed that $9,800 of the amount was paid towards his child support obligation,
and $24,539.32 was paid towards his spousal support obligation. However, when
presented with plaintiff’s exhibit No. NNN-2, Husband agreed that the exhibit
reflected that in 2016 he claimed to have paid $54,668 towards “alimony,” an
amount significantly higher than the $24,539.32 actually paid through CSEA. In
light of this information, Husband agreed with the trial court that “something is
very, very wrong here.” In an effort to explain this oversight, Husband suggested
that plaintiff’s exhibit No. NNN-2 may not have been the actual tax return he filed
in 2016. Husband maintained that he did not intentionally manipulate the
information set forth in his 2016 tax return, and that he assumed his tax return was
drafted by his accountant to “match up with CSEA.”
Regarding his draft IRS Schedule K-1 for the year 2017, as reflected in
plaintiff’s exhibit No. SSS, Husband admitted that the exhibit did not include his
Schedule C income. Thus, Husband agreed that his total income in 2017 “will be
more” than that reflected in the draft Schedule K-1 form. Husband further conceded
that in April 2018, he made a payment in the amount of $50,000 towards his
estimated tax liability for the year 2017. In light of this payment, Husband agreed
that he prioritized prepaying his estimated tax liability by choosing to pay the IRS
before paying his temporary spousal support obligation.
Husband further admitted that he has a commercial line of credit, and
“theoretically” could have drawn from the line of credit in an amount up to
$100,000 to pay his support obligations. When asked whether he could purge his
contempt by using his line of credit to pay half of the outstanding $159,960.80 “just
by writing a check in a matter of under a minute,” Husband stated, “yes.” Finally,
Husband agreed that he has used income to take several vacations since the
temporary support order was issued in April 2016.
The parties appeared before the court again on May 11, 2018. At the
onset of the hearing, plaintiff’s counsel attempted to explain the variance between
the support payments reflected in the CSEA records and the amount of “alimony
paid” for 2016, as stated in plaintiff’s exhibit No. NNN-2. Plaintiff’s counsel
indicated that he discovered the 2016 tax return introduced during Husband’s direct
examination was only a draft version of the document and did not reflect the
information contained in the actual tax return filed on Husband’s behalf in 2016.
Plaintiff’s counsel sought to correct the record and maintained that the mistaken
reliance on plaintiff’s exhibit No. NNN-2 was done in good faith.
After much confrontation, Frank Krempasky was permitted to testify
on Husband’s behalf. Krempasky testified that he is a CPA and has assisted
Husband and Wife in preparing their tax returns in the past. Krempasky stated that
in preparing to file the parties’ tax returns for the year 2016, he had extensive
conversations with Husband and Wife regarding whether they intended to file
jointly or individually, and drafted several versions of the tax returns for them to
review. Krempasky testified that “the biggest hold up within the tax filing was the
amount of spousal support to be claimed by [Wife] and deducted by [Husband].”
Krempasky was presented with plaintiff’s exhibit Nos. VVV and WWW, and
confirmed that the exhibits were copies of the final federal and state tax return he
submitted on behalf of Husband for 2016. Krempasky testified that exhibit No. VVV
reflects that Husband’s “total income” for 2016 was $209,252 and that he paid
alimony in the amount of $39,556. Krempasky testified that the amount of “alimony
paid” by Husband also reflected the amount designated as “alimony received” in the
tax return Krempasky filed on behalf of Wife.
On May 15, 2018, Husband filed a motion to dismiss Wife’s May 1,
2018 motion to show cause. In the motion, Husband alleged that “the show cause
motion was not served upon counsel for the plaintiff[;] and the docket shows that
the show cause motion was not served upon the plaintiff as of the May 7, 2018
hearing.” In addition, Husband filed a separate motion, seeking to dismiss all
pending motions to show cause, based on Wife’s alleged failure to comply with the
court’s local rules for the enforcement of child support or spousal support orders.
On May 18, 2018, Husband filed a written closing statement, arguing
the evidence presented at the contempt hearing supported an inability to pay
defense. With a total annual temporary support obligation of $134,664, Husband
asserted that “[he] would be left [after taxes] with approximately $25,000 of his
income to live on—while [Wife], who was earning a $80,000 salary, would have
$214,664 in income to live on.” Husband further argued that “there is no
conceivable way” he could also make payments towards the ordered household
expenses, Wife’s car payment, medical expenses, and certain extracurricular
expenses for the children. Thus, Husband asserted that he met his burden of proof
by demonstrating that “there was an overwhelming ‘ability to pay’ defense that
[Husband] demonstrated on all of the show cause motions related to just monthly
support.” Finally, Husband argued that he demonstrated a good-faith attempt to
comply with the temporary support order by making payments exceeding $138,000
in support.
Wife filed a written closing statement on May 21, 2018.
Notwithstanding the evidence submitted during the contempt hearing, Wife argued
that “Husband’s income has been and continues to remain in question.” Wife noted
that Husband had not been forthright about his projected income during earlier
stages of the proceedings and “has not been credible as to his testimony on income
in this matter.” Thus, Wife requested the court to “make a finding of contempt.”
On May 21, 2018, Wife also filed a brief in opposition to Husband’s
separate motions to dismiss, arguing that Husband “was not surprised by the
contents of the May 1, 2018 motion to show cause,” and that Husband did not raise
a timely objection regarding Wife’s compliance with the court’s local rules.
On June 14, 2018, the trial court issued a judgment entry setting forth
its “contempt findings and sentence.” With respect to the evidence documenting
Husband’s current income, the trial court determined that it was appropriate to
“reduce [Husband’s] spousal support obligation from $9,000 per month to $6,000
per month” based on the court’s finding “that a[n] average and fair amount for
[Husband’s] income would be $250,000 annually.” The court stated that the
reduction would be “backdated to the date of the [November 1, 2018 motion to
modify], reducing [Husband’s] total spousal support obligation by $18,000.” Thus,
the trial court held that Husband’s recalculated outstanding balance for unpaid
support was $141,960.80.
Next, the trial court denied Husband’s motion to dismiss the show-
cause motions, and found Husband to be in contempt of court for his failure to
comply with the April 25, 2016 temporary support order. Specifically, the trial court
granted Wife’s June 27, 2016, September 16, 2016, and May 1, 2018 motions to show
cause, but denied her motion to show cause filed on February 2, 2017. Finding
Husband lacked credibility with respect to his inability to pay defense, the court
sentenced Husband as follows:
Plaintiff is hereby sentenced for said contempt on the first offense to
thirty (30) days in the Cuyahoga County Jail.
Plaintiff is hereby sentenced for said contempt on the second offense to
sixty (60) days in the Cuyahoga County Jail.
Plaintiff is hereby sentenced for said contempt on the third offense to
ninety (90) days in the Cuyahoga County Jail.
Plaintiff’s sentences may be purged provided that Plaintiff pay
Defendant within fourteen (14) [days] of the date this order is
journalized, the sum of $50,000 which sum is approximately thirty-
five (35 percent) of said sum due and owing Defendant through the
Child Support Enforcement Agency, and he is ordered to pay the sums
due and owing to Defendant as [sic] and for extracurricular expenses,
and uninsured, unreimbursed medical expenses for the minor children
as set forth on Defendant’s exhibit Nos. 12 and 16.
Husband now appeals from the trial court’s June 14, 2018 judgment.
II. Law and Analysis
A. Temporary Support Order
In his first assignment of error, Husband argues the temporary
support order was not predicated on his current income and relied on evidence of
past income that was unsustainable. In his second assignment of error, Husband
argues the trial court violated Ohio law by failing to hold a modification hearing
within 28 days of his motion to modify the temporary support order as required by
Ohio Civ.R. 75(N). In his third assignment of error, Husband argues the trial court
erred by dismissing his motion to modify the temporary support order without
“analyzing any exhibits, testimony, or any evidence whatsoever.” We address these
assignments of error together for clarity.
Collectively, Husband’s first, second, and third assignments of error
challenge the appropriateness of the trial court’s temporary support order.
However, because the trial court has yet to enter a final divorce decree, the validity
of the temporary order is not subject to appellate review at this time. See Millstein
v. Millstein, 8th Dist. Cuyahoga Nos. 79617, 79754, 80184, 80185, 80186, 80187,
80188, and 80963, 2002-Ohio-4783, ¶ 28 (finding that temporary support orders
become subject to review after the court enters its final judgment.). This is because
“[t]emporary support orders are subject to modification at any time and, as such,
are generally not final, appealable orders within the jurisdiction of [the appellate]
court.” Hibbs v. Hibbs, 10th Dist. Franklin No. 08AP-93, 2008-Ohio-5621, ¶ 6,
citing Kelm v. Kelm, 93 Ohio App. 3d 686, 689, 639 N.E.2d 842 (10th Dist.1994)
(“Because a temporary support order is provisional in nature, subject to
modification at any time, it does not determine the ultimate rights of the parties
involved.”); Parr v. Parr, 8th Dist. Cuyahoga No. 70300, 1997 Ohio App. LEXIS
802, 32 (Mar. 6, 1997).
Based on the foregoing, we decline to address Husband’s first, second,
and third assignments of error. As reflected in Husband’s notice of appeal in this
case, our review is limited to an examination of the trial court’s June 14, 2018
judgment finding Husband in civil contempt. In re Guardianship of Brady, 8th
Dist. Cuyahoga No. 83881, 2004-Ohio-5972, ¶ 15 (“A reviewing court’s review is
limited to a review of the judgment designated in the notice of appeal.”).
B. Service
In his fourth assignment of error, Husband argues there was
insufficient proof that Wife’s June 27, 2016, September 16, 2016, February 2, 2017,
and May 1, 2018 motions to show cause were served in compliance with Civ.R. 4.1.
Alternatively, Husband contends that if this court determines that the service
requirements of Civ.R. 4.1 are inapplicable, “it is clear that the May 1, 2018 contempt
motion did not comply with the mandate of Ohio Civ.R. 5.”
The plaintiff bears the burden of obtaining proper service on a
defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App. 3d 61, 63, 705 N.E.2d 408
(1st Dist.1997). Service of process must be “‘reasonably calculated to apprise
interested parties of the action and to afford them an opportunity to respond.’”
Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St. 2d 403, 406, 406
N.E.2d 811 (1980), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).
Where the plaintiff follows the Ohio rules governing service of
process, courts presume that service is proper, unless the defendant rebuts this
presumption with sufficient evidence of nonservice. Mitchell v. Babickas, 8th Dist.
Cuyahoga No. 105294, 2018-Ohio-383, ¶ 10, citing McWilliams v. Schumacher, 8th
Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio-29, ¶ 49-50. To rebut
the presumption of proper service, the defendant must produce “evidentiary-quality
information” that demonstrates she did not receive service. Mitchell at ¶ 10, citing
Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23.
This evidence must be uncontradicted. Rafalski v. Oates, 17 Ohio App. 3d 65, 66,
477 N.E.2d 1212 (8th Dist.1984). “It is reversible error for a trial court to disregard
unchallenged testimony that a person did not receive service.” Id.
Where contempt is civil in nature, the civil rules regarding notice
apply. Home S. & L. Co. v. Midway Marine, Inc., 7th Dist. Mahoning No. 10 MA
109, 2012-Ohio-2432, citing Bierce v. Howell, 5th Dist. Delaware No. 06 CAF 05
0032, 2007-Ohio-3050. “‘[T]here is no specified manner of process required for the
filing of a motion for civil contempt; a person serving such a motion may do so in
any manner authorized by the Ohio Rules of Civil Procedure.’” FirstMerit Bank,
N.A. v. Xyran Ltd., 8th Dist. Cuyahoga No. 102905, 2016-Ohio-699, ¶ 16, quoting
Cleveland v. Bryce Peters Fin. Corp., 8th Dist. Cuyahoga Nos. 98006-98024,
98078, 98079, 98163, 98164, 2013-Ohio-3613, ¶ 29-32.
As stated, Husband’s service argument relies on the methods of
service outlined in Civ.R. 4.1. However, in the context of civil motions to show cause,
this court has held that “Civ.R. 5 governs service of papers subsequent to the original
complaint.” Bryce Peters Fin. Corp., 8th Dist. Cuyahoga Nos. 98006, 98007,
98008, 98009, 98010, 98011, 98012, 98013, 98014, 98015, 98016, 98017, 98018,
98019, 98020, 98021, 98022, 98023, 98024, 98078, 98079, 98163, and 98164,
2013-Ohio-3613, at ¶ 29, citing Scarnecchia v. Rebhan, 7th Dist. Mahoning No. 05
MA 213, 2006-Ohio-7053.
Civ.R. 5(A) requires that “every order required by its terms to be
served,” and “every written notice,” among other papers, “subsequent to the original
complaint * * * be served upon each of the parties.” “If a party is represented by an
attorney, service under this rule must be made on the attorney unless the court
orders service on the party.” Civ.R. 5(B)(1). “The rational[e] for this rule is that a
party represented by counsel usually speaks through counsel, and counsel ‘is in a
better position to understand the legal import of any documents required to be
served on his or her client and the nature of the action to be taken.’” Parallel Homes,
L.L.C. v. Stephens, 1st Dist. Hamilton No. C-130292, 2014-Ohio-840, ¶ 12, quoting
Swander Ditch Landowners’ Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs.,
51 Ohio St. 3d 131, 134, 554 N.E.2d 1324 (1990).
Generally, service under Civ.R. 5 may be accomplished in a number
of ways, including by hand delivery, commercial carrier service, or email. Civ.R.
5(B)(2)(a), (c), (d), and (f). Relevant to this case, service under the rule may also be
made by “mailing it to the person’s last known address by United States mail, in
which event service is complete upon mailing.” Civ.R. 5(B)(2)(c).
With respect to Wife’s June 27, 2016, September 16, 2016, and
February 2, 2017 motions to show cause, the record reflects that Husband did not
challenge the adequacy of service of these motions below. Rather, Husband’s service
arguments were limited to the May 1, 2018 motion to show cause. Nevertheless, even
if this court were to consider Husband’s arguments concerning the first three show-
cause motions, we find no error. Consistent with the precedent of this court, we find
Husband’s reliance of Civ.R. 4.1 is misplaced. Here, the certificates of service
contained in the June 27, 2016, September 16, 2016, and February 2, 2017 motions
to show cause state that each motion was sent to counsel for Husband by ordinary
mail. Husband has presented no evidentiary quality information to suggest that
service of these motions by ordinary mail was deficient. Accordingly, we find service
of these motions on counsel for Husband by ordinary mail was sufficient under
Civ.R. 5(B).
Regarding the May 1, 2018 show cause motion, Husband argued in
his May 15, 2018 motion to dismiss that this motion to show cause “was never served
upon counsel for the Plaintiff.” In addition, the record reflects that counsel for
Husband verbally objected to the court’s consideration of the May 1, 2018 motion to
show cause, marked Defendant’s exhibit No. 14, due to the lack of service. Counsel
argued, in relevant part:
Judge, just objection to [Defendant’s exhibit No.] 14. It looks like it is
a show cause that was filed on May 1st, 2018, just about a week ago.
I’m not even sure it’s been served yet.
***
Judge, I have to object. [Husband] hasn’t even been served with this
yet. It was filed on May 1st[.]
Following a discussion on the record, the trial court overruled
plaintiff counsel’s objection and defense counsel was permitted to question
Husband about the allegations set forth in the May 1, 2018 motion to show cause.
On appeal, Husband contends that the motion was improperly served
at an old address for his counsel, and therefore, failed to comply with Civ.R.
5(B)(2)(c). Our review of the certificate of service contained in the May 1, 2018
motion to show cause indicates that the motion was “sent via ordinary U.S. mail” to
counsel’s most recent address.1 The certificate of service complies with the
requirements of Civ.R. 5(B)(4). It indicates the correct date of service, the stated
manner of service, and was signed by counsel.
However, under the unique circumstances of this case, our review of
the certificate of service does not end our inquiry. In this case, an exhibit attached
to Husband’s May 15, 2018 motion to dismiss establishes that service of the May 1,
2018 motion to show cause was “returned to sender.” The docket reflects that the
mailing was returned to defense counsel because the mailing envelope listed an
address for plaintiff’s counsel that was different than the address listed in the
motion’s certificate of service. In short, the certificate of service correctly listed
counsel’s new address; however, the motion was mailed in an envelope that
mistakenly listed counsel’s old address. Recognizing this oversight, defense counsel
forwarded a copy of the May 1, 2018 motion to show cause to plaintiff’s counsel in
1 The record reflects that counsel moved office locations during the pendency of
this litigation.
an email correspondence sent at 5:58 p.m. on May 7, 2018 — well after the May 7,
2018 contempt hearing had concluded.
At the time of the May 7, 2018 contempt hearing, the trial court, nor
counsel for Wife, had any reason to believe service was not successfully perfected on
counsel for Husband once the May 1, 2018 motion was mailed. Undoubtedly,
counsel for Wife only recognized this oversight in light of the objection raised by
counsel for Husband at the onset of the contempt hearing. Nevertheless, we find
Husband has established that Wife failed to comply with the service requirements
of Civ.R. 5 prior to the contempt hearing, albeit unintentionally. Counsel for Wife
had knowledge of the new address associated with counsel for Husband, but mailed
the motion to an address that was not counsel’s “last known address.”
[T]he language of the Civil Rules regarding service of process is
mandatory, and * * * a trial court may not consider a motion if the
motion failed to comply with the rules regarding service of process.
Bozsik v. West, 9th Dist. Lorain No. 16CA010924, 2017-Ohio-7781, ¶ 9, quoting Pla
v. Wivell, 9th Dist. Summit No. 25814, 2011-Ohio-5637, ¶ 14. Based on the
foregoing, we find Husband has produced “evidentiary-quality information”
demonstrating that he did not receive service of the May 1, 2018 motion prior to the
commencement of the contempt hearing. Accordingly, the trial court committed
reversible error by considering the merits of the motion to show cause absent proper
service. Moreover, it is immaterial that counsel for Wife attempted to correct the
clerical error following the May 7, 2018 contempt hearing, because the record
reflects that all material testimony had been presented to the trial court before the
corrective email was sent.
Husband’s fourth assignment of error is sustained in part. The trial
court’s finding of contempt based on the allegations set forth in the May 1, 2018
motion is vacated. Our conclusion does not implicate the court’s judgment on the
remaining motions to show cause.
C. Local Rule 20 of the Domestic Relations Court
In his fifth assignment of error, Husband argues that “defendant’s
contempt motions, and the evidence introduced at the [contempt] hearing, did not
comply with Local Rule 20 of the Cuyahoga County Domestic Relations Court.”
Loc.R. 20 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division, governs the enforcement of “existing child support or
spousal support order[s] post-decree.” (Emphasis added.) The rule requires that a
motion to enforce such orders be supported by a sworn affidavit “which sets forth
the specific facts constituting the alleged non-compliance.” Loc.R. 20(B). In
addition, the motion must state the following:
(1) The date of journalization of the judgment entry that sets forth the
existing support order.
(2) The specific provisions, referencing paragraph and page numbers,
with which a party has allegedly failed to comply.
(3) If the motion pertains to non-payment of periodic support, the
amount of the arrears as of the last day of the month before the motion
was filed and whether interest is requested.
(4) If the motion pertains to non-payment of health care expenses, the
amount of unpaid health care expenses and a statement that copies of
the bills were provided to the opposing party and payment was
demanded before the motion was filed. If the motion asserts non-
payment of child(ren)’s health care expenses, a completed Explanation
of Health Care Expenses must be attached to the motion.
(5) The specific relief requested.
Id.
With respect to the enforcement of health care expenses, Loc.R.
20(G) provides:
(1) At the hearing, the moving party must submit a completed
Explanation of Health Care Expenses, all health care bills, explanations
of benefits, and any other documents that support the Explanation of
Health Care Expenses.
(2) Copies of all documents submitted to the Court must be exchanged
with the opposing party before hearing.
(3) Failure of a party to submit the required documents may result in
sanctions including, but not limited to, dismissal of his or her motion
or an award of attorney fees.
After careful consideration, we find a clear reading of the local rule
reflects that its mandates apply only to “post-decree” motions to enforce.
Unquestionably, the motions to show cause filed in this case relate to an order that
was issued prior to the divorce decree. Procedurally, Loc.R. 20 is inapplicable.
Husband has provided no basis for this court to strictly apply the requirements of
Loc.R. 20 to a filing not expressly contemplated under the rule. Accordingly,
Husband’s reliance on Loc.R. 20 is unpersuasive. The trial court did not commit
reversible error by denying Husband’s motion to dismiss for failure to comply with
Loc.R. 20. Husband’s fifth assignment of error is overruled.
D. Civil Contempt
In his sixth assignment of error, Husband argues the trial court erred
in finding him in civil contempt for not complying with the temporary child support
and spousal support orders.
We review a finding of contempt for an abuse of discretion. Kapadia
v. Kapadia, 8th Dist. Cuyahoga No. 96910, 2012-Ohio-808, ¶ 22, citing In re
Contempt of Modic, 8th Dist. Cuyahoga No. 96598, 2011-Ohio-5396, ¶ 7. An abuse
of discretion implies the trial court’s attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
Contempt is defined as a disregard of, or disobedience to, an order or
command of judicial authority. Kapadia at ¶ 26, citing State v. Flinn, 7 Ohio App. 3d
294, 455 N.E.2d 691 (9th Dist.1982). R.C. 2705.02 provides that disobedience of a
lawful order is punishable as contempt. A trial court may therefore employ civil
contempt sanctions in order to coerce a party into complying with a court order.
Whitman v. Monastra, 8th Dist. Cuyahoga No. 76633, 2000 Ohio App. LEXIS 4637,
*17 (Oct. 5, 2000).
The party initiating the contempt proceedings must demonstrate, by
clear and convincing evidence, that the contemnor has failed to pay support. Pugh
v. Pugh, 15 Ohio St. 3d 136, 472 N.E.2d 1085 (1984). The contemnor then bears the
burden of proving his inability to pay the court-ordered support. Id. at 140. For
purposes of contempt, “[a] party must take all reasonable steps within [his or] her
power to comply with the court’s order and, when raising the defense of
impossibility, must show ‘categorically and in detail’ why [he or] she is unable to
comply with the court’s order.” Briggs v. Moelich, 8th Dist. Cuyahoga No. 97001,
2012-Ohio-1049, ¶ 15, citing Lahoud v. Tri-Monex, Inc., 8th Dist. Cuyahoga No.
96118, 2011-Ohio-4120, ¶ 54. Unsubstantiated claims of financial difficulties do not
establish an impossibility defense to a contempt charge. Wagshul v. Wagshul, 2d
Dist. Montgomery No. 23564, 2010-Ohio-3120, ¶ 41, citing Bishop v. Bishop, 5th
Dist. Stark No. 2001CA00319, 2002-Ohio-1861.
When assessing a contemnor’s defense of an alleged inability to pay,
the trial court is in the best position to evaluate the credibility of the
alleged contemnor in that regard and this court will not substitute its
judgment for that of the trial court in such a situation.
Seoud v. Bessil, 7th Dist. Mahoning No. 15 MA 0090, 2016-Ohio-8415, ¶ 23, quoting
Kachmar v. Kachmar, 7th Dist. Mahoning No. 12 MA 179, 2014-Ohio-652, ¶ 15,
citing Anderson v. Anderson, 7th Dist. Columbiana No. 96 CO 21, 1998 Ohio App.
LEXIS 5839, *4 (Dec. 1, 1998).
In this case, there is no dispute that Wife established a prima facie
case of contempt by showing Husband’s failure to comply with the complete terms
of the temporary support order. Throughout the contempt hearing, Husband
routinely conceded that he failed to comply with the temporary support order,
particularly his spousal support obligations.
On appeal, however, Husband argues “he clearly demonstrated an
inability to completely comply with the temporary support order” by submitting
evidence that demonstrated his income has substantially decreased since 2015.
Husband contends that after deducting taxes and his support obligation from his
2016 total income, he does not have the financial ability to comply with the court’s
order and simultaneously support himself.
After careful review of the record in its entirety, we are unable to
conclude that Husband satisfied his burden of establishing his inability to comply
with the court’s order. As previously discussed, in the absence of a final divorce
decree, our review is limited to whether Husband disobeyed a lawful order of the
court, not the merits of the nonfinal order. In this case, the relevant CSEA records
and Husband’s own testimony during the contempt hearing, demonstrate that
Husband’s failure to comply with the trial court’s temporary support order was
immediate and calculated. Here, Husband’s disobedience occurred within days of
the court’s issuance of the temporary support order, and just months after he earned
the highest annual total income in his career. Thus, it is clear that Husband’s
decision to ignore the specific terms of the court order was not based on his ability
to pay. Rather, his conscious decision was predicated on his belief that the order
was unfair or inequitable. While Husband successfully presented evidence during
the May 7, 2018 and May 11, 2018 hearings to warrant a modification of his
aggregate spousal support obligation, the evidence did not clearly and convincingly
establish that he was unable to comply with the court order.
This is not the case where the contemnor has demonstrated an
inability to work, an involuntary termination, a significant medical issue, or a
complete depletion of financial resources. See Herold v. Herold, 10th Dist. Franklin
No. 04AP-206, 2004-Ohio-6727, ¶ 37 (finding contemnor established an
impossibility defense with evidence that she was, through no fault of her own,
financially unable to comply with the order since she was medically diagnosed and
administratively determined to be unable to work); Zifer v. Huffman, 5th Dist.
Tuscarawas No. 2017 AP 06 0017, 2018-Ohio-322 (finding trial court did not abuse
its discretion in finding contemnor had an inability to pay a spousal support order
due to his involuntary termination.); Wagshul v. Wagshul, 2d Dist. Montgomery
No. 23564, 2010-Ohio-3120, ¶ 41 (finding contemnor “established an impossibility
defense with evidence that the gross revenues from his practice declined by forty
percent between 2004 and 2007, and that even so he incurred debt and substantially
exhausted his savings to continue to pay his support obligation”).
Throughout this lengthy litigation and during the majority of the
contempt hearing, Husband has continuously debated the merits of the temporary
support order, relying exclusively on his 2016 tax records. While these records
established that his total income is presently less than it was in 2015, the exhibits do
not, standing alone, constitute a comprehensive reflection of Husband’s complete
finances. Thus, unlike the foregoing cases, Husband’s inability to pay defense lacked
complete financial transparency. Significantly, the contempt hearing is devoid of
any reference to Husband’s current bank records, expenses, or debts. Absent such
relevant information, we find Husband’s inability-to-pay defense to be
unsubstantiated.2
Moreover, we are unpersuaded by Husband’s suggestion that he
made a good-faith attempt to comply with the court’s order by making payments of
support in the amount of $131,185.32 between June 1, 2016 and May 6, 2018.
(Defendant’s exhibit No. 15.) We recognize that Husband’s partial payment of
support is not insignificant. However, partial payment does not equate to good faith
where, as here, Husband has not demonstrated that he was paying his obligation to
the full extent of his capability. See Lemke v. Lemke, 8th Dist. Cuyahoga No. 94557,
2011-Ohio-457, ¶ 45; Faubel v. Faubel, 7th Dist. Mahoning Nos. 05-MA-101 and 05-
MA-210, 2006-Ohio-4679, ¶ 51 (“[Contemnor] erroneously equates partial
payments with good faith.”).
In contrast to the evidence submitted by Husband, defense counsel
effectively cross-examined Husband about specific examples of his current finances
in an effort to demonstrate that Husband is able to comply with the court order, but
simply does not agree with the court’s judgment and/or prioritizes other debts. In
this case, Husband conceded that in April 2018, he made payments in the amount
of $50,000 towards his estimated tax liability for 2017. Husband testified that he
made the payment before his taxes were filed for 2017 and that he could have used
the funds to pay a portion of his support arrearages. See Ruben v. Ruben, 10th Dist.
2 Husband did introduce evidence of past personal and professional bank accounts
at various stages of the litigation. However, this information was not relied upon or
referenced in support of Husband’s ability to pay defense during the contempt hearing.
Franklin No. 12AP-717, 2013-Ohio-3924, ¶ 32 (“Impossibility of performance is not
a valid defense where the contemnor created the impossibility by his own actions.”).
In addition, Husband admitted that he has access to a line-of-credit that could
immediately be used to satisfy a significant portion of his support arrearages. See
Monastra v. Monastra, 8th Dist. Cuyahoga No. 76633, 2000 Ohio App. LEXIS
4637, 13 (Oct. 5, 2000) (holding “[b]ecause appellant made no effort or inquiry
about borrowing from any source to even partially satisfy his obligation, the trial
court did not abuse its discretion by apparently discounting” the appellant’s
testimony regarding his inability to pay his arrearage); Dudley v. Dudley, 12th Dist.
Butler No. CA2012-04-074, 2013-Ohio-859, ¶ 19 (determining contemnor did not
establish impossibility where he claimed “his bank would not loan him money” but
“there is no indication in the record as to why the bank denied his request, or
whether the bank had offered any other terms or alternate options”).
Finally, Husband testified that he has taken several discretionary
vacations since the April 2016 order was issued. See Wehrle v. Wehrle, 10th Dist.
Franklin No. 12AP-386, 2013-Ohio-81, ¶ 31 (holding trial court did not abuse its
discretion in rejecting defendant’s impossibility defense where he “‘indulged in
discretionary expenses’ while he was under an obligation to pay spousal” support).
Viewing the foregoing collectively, we find the evidence supports
Wife’s position that Husband’s noncompliance with the court’s order was not due to
an impossibility, but was based on an unfounded litigation strategy and/or his
dissatisfaction with the trial court’s denial of his original request for modification of
the temporary support order. The trial court agreed, finding Husband’s defense
lacked credibility.
Deferring to the trial court’s assessment of credibility, we find
Husband failed to demonstrate in sufficient, categorical detail his inability to comply
with the court’s order. Accordingly, the trial court did not abuse its discretion in
finding Husband in contempt.
Husband’s sixth assignment of error is overruled.
E. Purge Order
In his seventh assignment of error, Husband argues the trial court
placed impossible and/or unconscionable terms on him to purge the contempt.
With any sanction for civil contempt the court must allow the
contemnor an opportunity to purge the contempt. Rose v. Rose, 8th Dist. Cuyahoga
No. 99933, 2013-Ohio-5136, ¶ 7, citing Carroll v. Detty, 113 Ohio App. 3d 708, 712,
681 N.E.2d 1383 (4th Dist.1996). A trial court abuses its discretion by ordering
purge conditions that are unreasonable or where compliance is impossible. Id.,
citing Burchett v. Miller, 123 Ohio App. 3d 550, 552, 704 N.E.2d 636 (6th Dist.1997).
The party who is in contempt bears the burden of presenting sufficient evidence at
the contempt hearing to establish that the trial court’s purge conditions are
unreasonable or impossible for him to satisfy. Marx v. Marx, 8th Dist. Cuyahoga
No. 82021, 2003-Ohio-3536. In addition, a contemnor’s “unsupported claims of
financial difficulty or an inability to pay are insufficient to establish that the trial
court’s conditions are unreasonable.” Rose at ¶ 10, citing Pettit v. Pettit, 8th Dist.
Cuyahoga No. 64582, 1993 Ohio App. LEXIS 6200, * 12 (Dec. 23, 1993).
The purge conditions in this case required Husband to pay Wife
$50,000 and the sums due and owing to Wife for certain extracurricular activity and
medical expenses within 14 days of the contempt order. Here, Husband reiterates
his inability to pay arguments in support of his position that the purge conditions
were impossible. However, having determined that Husband failed to demonstrate
his inability to comply with the underlying court order, we are unable to conclude
that the purge conditions are unreasonable or impossible for Husband to meet. The
conditions are directly related to the circumstances of Husband’s contempt and are
specifically constructed to compel present and future compliance with the court’s
order.
Husband’s seventh assignment of error is overruled.
Judgment affirmed in part, reversed in part, and remanded.
It is ordered that appellee and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas, Domestic Relations Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
RAYMOND C. HEADEN, J., CONCUR