Falah v. Falah , 2021 Ohio 4348 ( 2021 )

[Cite as Falah v. Falah, 2021-Ohio-4348.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JAMILA FALAH C.A. No. 20CA0039-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GHAZI FALAH COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 14 DR 0051
DECISION AND JOURNAL ENTRY
Dated: December 13, 2021
TEODOSIO, Judge.
{¶1} Defendant-Appellant, Ghazi Falah (“Husband”), appeals from the judgment of the
Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} This Court previously set forth the underlying facts and procedural history of this
case as follows:
Husband and * * * Jamila Falah (“Wife”) married in Israel in August 1981 and
had four children during the course of their marriage, three of whom are now
adults and one of whom is deceased. Husband is a tenured university professor
who taught in multiple countries over the years while Wife remained alongside
him and raised their four children. The family ultimately settled in Wadsworth in
2001, but both Husband and Wife continued to travel internationally to visit
family and friends.
In August 2013, one or both of the parties decided to divorce, and they both
prepared their Wadsworth home for sale. Both parties remained at the marital
residence until October 2013, when Wife went on a trip to Israel. Husband then
followed Wife to Israel and, in December 2013, filed for a divorce in the Sharia
Court. Wife initially refused service, but ultimately secured an attorney in Israel,
participated in the proceedings, and received a deferred dowry. While the Israeli
2
proceedings were still pending, however, Wife also returned to the United States
and filed a complaint for divorce in Medina. Following her return, Wife
continued to reside in the marital residence until it sold in July 2014.
Husband responded to Wife’s complaint in Medina by filing a motion to dismiss
for lack of jurisdiction. He argued both that Wife had abandoned her Ohio
domicile when she left for Israel and the court had to cede jurisdiction to Israel,
where he had filed for divorce. Before the court could hold a hearing on
Husband’s motion, the Sharia Court issued a decision, approving a divorce for the
parties under Israeli law. Husband then filed a supplement to his motion to
dismiss, notifying the court of the divorce in Israel. In August 2014, while this
matter was still pending, Husband remarried in Israel.
A magistrate held a hearing on a Husband’s motion to dismiss in December 2014
and later denied it. The trial court adopted the magistrate’s decision, and
scheduled the matter for a final divorce hearing. The final hearing took place
before the trial judge in March 2015. In its final judgment entry, the court
purportedly gave comity to the parties’ Israeli divorce decision, but it also granted
a decree of divorce and set forth orders for the division of their assets and the
allocation of their debt. Additionally, it ordered Husband to pay Wife permanent
spousal support in the amount of $2,750 per month.
Falah v. Falah, 9th Dist. Medina No. 15CA0039-M, 2017-Ohio-1087, ¶ 2-5. Husband appealed
from the judgment of the trial court, and this Court affirmed in part, but also reversed in part
because the trial court “acted unreasonably in failing to address the temporary support that
Husband had already paid.” Id. at ¶ 28. We remanded the matter “for the court to address the
temporary support Husband paid in light of its decision to vacate the order for temporary
support.” Id. at ¶ 28, 44. Upon remand, the trial court issued a nunc pro tunc final judgment
entry of divorce in June 2017, which modified its April 2015 entry to now award Husband an
additional credit of $15,200 for temporary spousal support that had been withheld and paid from
December 2014 through March 2015.
{¶3} Meanwhile, during the pendency of that appeal, Husband filed motions to
terminate spousal support and for orders regarding personal property, and Wife filed motions to
modify spousal support, to show cause for failure to pay spousal support, and for spousal support
3
to be paid through the Child Support Enforcement Agency (“CSEA”). Husband also filed a
reply to Wife’s motion for spousal support to be paid through CSEA. A magistrate held a final
hearing on these competing motions in May 2018 and issued her decision in October 2018. The
magistrate dismissed Wife’s motion to modify spousal support, granted Wife’s motion for
spousal support to be paid through CSEA, denied Husband’s motion to terminate spousal
support, and denied Husband’s motion for orders regarding personal property. As for Wife’s
motion to show cause for failure to pay spousal support, the magistrate found Husband to be in
contempt of court for failure to pay spousal support. The trial court issued a judgment entry on
the same day as the magistrate’s decision, see Civ.R. 53(D)(4)(e)(i), adopting the magistrate’s
findings and entering judgment on the matter.
{¶4} Husband filed timely objections to the magistrate’s decision in October 2018 and
later supplemented his objections in January 2019. The trial court heard oral arguments on the
objections in April 2019 and issued a judgment entry overruling Husband’s objections in June
2020. In its entry, the court confirmed its prior judgment and stated: “Since the [c]ourt has
already independently entered judgment on the [m]agistrate’s [d]ecision, the [j]udgment [e]ntry
that was journalized October 18, 2018 shall remain in full force and effect.”
{¶5} Husband now appeals from the trial court’s judgment and raises four assignments
of error for this Court’s review. We have rearranged the order of Husband’s assignments of
error to facilitate our review.
II.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN ADMITTING APPELLEE’S EXHIBIT 6
PURPORTING TO BE PROOF OF A FOREIGN MARRIAGE AND FINDING
THAT MR. ALMOUHAMAD WAS MARRIED ON SEPTEMBER 22, 201[6,]
WHEN HE MARRIED APPELLEE IN OHIO.
4
{¶6} In his second assignment of error, Husband argues that the trial court erred in
admitting into evidence a picture of a purported foreign marriage contract (“Exhibit 6”) between
Abd Alrahman Almouhamad (“Mr. Abdul”) and Ebtisam Elmousleh (“Ms. Elmousleh”).
Because this issue was not properly preserved below, we conclude that Husband has forfeited his
argument on appeal.
{¶7} The decision to admit or to exclude evidence is within the sound discretion of the
trial court and will not be reversed absent an abuse of that discretion. Homler v. Homler, 9th
Dist. Lorain No. 05CA008752, 2006-Ohio-2556, ¶ 14. An abuse of discretion implies the
court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from simply
substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio
St.3d 619, 621 (1993).
{¶8} The trial court’s nunc pro tunc final judgment entry of divorce provides that
“[s]pousal support * * * shall continue until the death of either party, the remarriage of the
Wife[,] or the cohabitation of the Wife with an unrelated adult male.” At the final hearing on the
motions, the parties stipulated that Wife entered into a purported marriage contract with Mr.
Abdul in Ohio on September 22, 2016. Nevertheless, Wife testified that she never consummated
the marriage with Mr. Abdul, he did not financially support her, and they never cohabited, as her
religious and cultural beliefs first required a formal announcement of the marriage to family and
friends. According to Wife, she was aware Mr. Abdul was divorced from Ms. Elmousleh, but
she later learned from a phone call with her son—in which she could hear Husband talking in the
background—that Mr. Abdul had remarried Ms. Elmousleh prior to Wife’s 2016 marriage to Mr.
Abdul. Under Ohio law, only persons “not having a husband or wife living” may be joined in
5
marriage. R.C. 3101.01(A).1 Bigamous marriages are therefore void ab initio and of no legal
purpose. Darling v. Darling, 44 Ohio App.2d 5, 7 (8th Dist.1975).
{¶9} Wife testified that Husband had Ms. Elmousleh send a picture of a foreign
marriage certificate (“Exhibit 6”) to their son who, in turn, texted it to Wife. According to Wife,
Mr. Abdul soon left the United States in November 2016 at her behest. At the time of the final
hearing, Wife had filed for divorce from Mr. Abdul and the case was still pending. When
confronted with Exhibit 6 at the hearing, Husband testified that he did not recognize it and
claimed that he never sent it to the couple’s son. He testified that Exhibit 6 was a “false piece of
paper.” Exhibit 6 is written in Arabic and was later admitted into evidence at the close of the
hearing over Husband’s objection. It is accompanied by a certified Arabic-to-English translation
from the International Institute of Akron. The translation indicates that Exhibit 6 purports to be a
foreign marriage contract between Mr. Abdul and Ms. Elmousleh, who were married in the city
of Tripoli in September 2014.
{¶10} Husband argues on appeal that the trial court erred in admitting Exhibit 6 into
evidence because it is a copy of a writing in Arabic, which is not certified or verified and is not
accompanied by a certificate of genuineness, as required by Evid.R. 902(3). Husband further
contends that the accompanying Arabic-to-English translation only certifies that the translation
itself is accurate; it does not certify the authenticity of the foreign marriage certificate. He
argues that Exhibit 6 was also improperly admitted because it is incomplete and constitutes
inadmissible hearsay. Finally, he argues that the court improperly found Wife’s testimony to be
credible when Wife’s opinion was based solely on her reliance upon Exhibit 6.
1
Although not relevant to this appeal, we note that this statute has been declared
unconstitutional on other grounds related to same-sex marriage. See, generally, Obergefell v.
Hodges, 576 U.S. 644 (2015).
6
{¶11} We conclude that Husband has not properly preserved his arguments for appeal.
Pursuant to Evid.R. 103(A)(1), “[e]rror may not be predicated upon a ruling which admits * * *
evidence unless a substantial right of the party is affected[] and * * * a timely objection or
motion to strike appears of record, stating the specific ground of objection, if the specific ground
was not apparent from the context * * *.” During the hearing, Exhibit 6 was marked for
identification, and Husband was questioned by Wife’s attorney about it without objection. Wife
was likewise questioned about Exhibit 6, and she identified it and explained where it came from
without objection. Husband’s attorney then questioned Wife further as to Exhibit 6 on re-cross
examination. Although Husband ultimately objected to the admission of Exhibit 6 into evidence
at the close of the hearing on the bases that it is “in Arabic” and “we don’t know if it’s accurate
as well[,]” he never objected to either the exhibit or to any of the testimony regarding the exhibit
during the hearing.
{¶12} When a party fails to contemporaneously object to the testimony and
identification of an introduced exhibit, and only later objects, after the close of evidence when
the exhibit is being admitted into evidence, he forfeits the matter for review on appeal. See State
v. Henry, 9th Dist. Summit No. 27758, 2016-Ohio-680, ¶ 10, citing State v. Sykes, 9th Dist.
Summit No. 25263, 2011-Ohio-293, ¶ 8. See also State v. Hughes, 9th Dist. Summit No. 27061,
2014-Ohio-4039, ¶ 8; State v. Payne, 9th Dist. Summit No. 26655, 2013-Ohio-5230, ¶ 10; State
v. Rice, 9th Dist. Summit No. 26116, 2012-Ohio-2174, ¶ 21; State v. Cross, 9th Dist. Summit
No. 25487, 2011-Ohio-3250, ¶ 49; Fleischer v. George, 9th Dist. Medina No. 09CA0057-M,
2010-Ohio-3941, ¶ 14-15; State v. Gray, 9th Dist. Wayne No. 08CA0057, 2009-Ohio-3165, ¶ 7.
“Indeed, ‘[t]he contemporaneous objection rule is fundamental to our jurisprudence.’” Condon
v. Rockich, 9th Dist. Summit No. 28479, 2018-Ohio-71, ¶ 17, quoting In re M.B., 9th Dist.
7
Lorain Nos. 11CA010060 and 11CA010062, 2012-Ohio-5428, ¶ 11, quoting Steward v. Norris
Bros. Co., Inc., 8th Dist. Cuyahoga No. 53540, 1988 WL 32117, *1 (Mar. 17, 1988). “‘The rule
serves the interest of justice because it allows for the correction of many defects while they are
readily curable, as well as it encourages the elimination of delay and the unnecessary use of the
appellate process.’” Id., quoting In re M.B. at ¶ 11. Moreover, although Husband argued in his
supplemental objections to the magistrate’s decision that the court erred in admitting Exhibit 6
into evidence, “[t]his Court has stated that ‘[t]he filing of a written objection to the decision of a
magistrate is not a substitute for the obligation to object to a purported error at the time of its
occurrence.’” Id., quoting In re M.B. at ¶ 11. In this case, any purported errors with Exhibit 6
could have been easily corrected had an objection been timely made. See id. While an appellant
who has forfeited such an argument may still argue plain error on appeal, see Evid.R. 103(D),
this Court will not sua sponte undertake a plain-error analysis if the appellant fails to do so. See
Sykes at ¶ 8, citing Akron v. Lewis, 179 Ohio App.3d 649, 2008-Ohio-6256, ¶ 22 (9th Dist.).
Husband has not argued plain error in this matter.
{¶13} Husband’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED IN FAILING TO ACCEPT AND CONSIDER
THE CERTIFIED COPY OF APPELLEE’S OHIO DIVORCE DECREE AND
ERRED IN FINDING THAT THE APPELLANT DID NOT PROVIDE ANY
EVIDENCE ON THAT ISSUE AT TRIAL.
{¶14} In his third assignment of error, Husband argues that the trial court, during oral
arguments on Husband’s objections to the magistrate’s decision, erred in not accepting a decree
of divorce which he contends reflects the validity of the 2016 marriage between Wife and Mr.
Abdul.
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{¶15} Husband contends that “a dissolution of a marriage in a divorce proceeding
connotes that the marriage is valid with it being terminated under one of the grounds provided
for in [R.C.] 3105.01” and “[a] party to a void marriage can only file for divorce to declare it a
nullity.” Husband directs us to no legal authority, however, in support of his arguments under
this assignment of error. See App.R. 16(A)(7) (requiring “citations to the authorities, statutes,
and parts of the record on which appellant relies.”); accord Loc.R. 7(B)(7). “It is an appellant’s
duty to demonstrate his assigned error through an argument that is supported by citations to legal
authority and facts in the record * * *.” McDonald’s USA, LLC v. Lorain Cty. Bd. of Revision,
9th Dist. Lorain No. 18CA011279, 2019-Ohio-4217, ¶ 34. It is not the function of this Court to
construct a foundation for Husband’s alleged error, or to search for authority to support his
argument. In re Estate of Irvine, 9th Dist. Summit No. 28901, 2019-Ohio-772, ¶ 11. Because
Husband has failed to cite to any legal authority upon which he relies under this assignment of
error, we decline to address it. See Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, ¶
45 (9th Dist.).
{¶16} Even assuming we were to address the merits of this assignment of error, we note
that the purported 2016 decree of divorce between Wife and Mr. Abdul is not contained in the
record before us. This Court’s review on appeal is restricted to the record provided by the
appellant. See Harding v. Harding, 9th Dist. Summit No. 27464, 2016-Ohio-7028, ¶ 9; App.R.
12(A)(1)(b). See also Emergency Physicians Ins. Co. RRG v. Emergency Physicians Ins.
Exchange, 9th Dist. Summit No. 28747, 2018-Ohio-566, ¶ 8, citing Volodkevich v. Volodkevich,
48 Ohio App.3d 313, 314 (9th Dist.1989) (noting appellant’s responsibility to provide a record of
facts, testimony, and evidentiary matters necessary to support an assignment of error). As
Husband would not be able to demonstrate error by referencing a document not contained in the
9
record, we would presume regularity in the proceedings and overrule this assignment of error.
See Harding at ¶ 9.
{¶17} Husband’s third assignment of error is overruled.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN FAILING TO TERMINATE SPOUSAL
SUPPORT DUE TO APPELLEE’S RELIGIOUS MARRIAGE IN 2015 AND
HER OHIO MARRIAGE ON SEPTEMBER 22, 2016[,] BASED UPON THE
LANGUAGE IN THE NUNC PRO TUNC FINAL JUDGMENT ENTRY OF
DIVORCE WHICH PROVIDES FOR TERMINATION OF SPOUSAL
SUPPORT UPON WIFE’S REMARRIAGE.
{¶18} In his first assignment of error, Husband argues that the trial court abused its
discretion in failing to terminate spousal support because Wife and Mr. Abdul entered into a
religious marriage outside of the United States in April 2015 and then entered into a secular
marriage in Ohio in September 2016.
{¶19} Generally, “the decision to adopt, reject, or modify a magistrate’s decision lies
within the discretion of the trial court and should not be reversed on appeal absent an abuse of
discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5.
However, “[i]n so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-
3139, ¶ 18. An abuse of discretion means more than an error of law or judgment; it implies that
the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a
reviewing court is precluded from simply substituting its own judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶20} “The Supreme Court of Ohio has concluded that ‘the difference between a
modification and a termination of alimony was a distinction without a difference. Modification
10
and termination of an alimony award are simply different points or degrees on the same
continuum.’” Kelly v. Kelly, 9th Dist. Wayne No. 18AP0048, 2019-Ohio-4723, ¶ 10, quoting
Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, ¶ 7. “This Court reviews a trial court’s
decision to modify spousal support under an abuse of discretion standard.” Michaels v.
Michaels, 9th Dist. Medina No. 12CA0029-M, 2013-Ohio-984, ¶ 7.
{¶21} We first note that the trial court’s jurisdiction to modify or terminate spousal
support is not disputed here, as the nunc pro tunc final judgment entry of divorce contains a
provision that the court “retains jurisdiction over all aspects of spousal support.” See Kimble at ¶
10 (“[P]ursuant to R.C. 3105.18(E), a trial court has the authority to modify or terminate an order
for alimony or spousal support only if the divorce decree contains an express reservation of
jurisdiction.”). See also R.C. 3105.18(E)(1).
{¶22} Husband argues that Wife stipulated to the fact that she remarried Mr. Abdul on
September 22, 2016, which should have terminated his spousal support obligation. Despite
Wife’s opposition to the termination of spousal support and her claim that Mr. Abdul was
already married at the time of his 2016 marriage to Wife, Husband argues that Wife’s testimony
and Exhibit 6 did not constitute sufficient evidence to demonstrate that Mr. Abdul was already
married, and the trial court therefore erred in finding that Wife’s 2016 marriage to Mr. Abdul
was void.
{¶23} The trial court’s nunc pro tunc final judgment entry of divorce provides that
“[s]pousal support * * * shall continue until the death of either party, the remarriage of the
Wife[,] or the cohabitation of the Wife with an unrelated adult male.” The parties stipulated that
Wife attempted to marry Mr. Abdul in Ohio in 2016. Wife testified, however, that Mr. Abdul
left for Michigan immediately after they were married in 2016. According to Wife, due to her
11
religious and cultural beliefs, the 2016 secular marriage was never consummated, she received
no financial support from Mr. Abdul, and the couple never cohabited. Wife further testified that,
while planning a formal ceremony afterward to announce the marriage to friends and family, she
was notified by her son that Mr. Abdul was already married. Her son then sent her a picture of
Mr. Abdul and Ms. Elmousleh’s 2014 foreign certificate of marriage. Once again, bigamous
marriages are void ab initio and of no legal purpose. Darling, 44 Ohio App.2d at 7. See also
R.C. 3101.01(A). Wife testified that she subsequently asked Mr. Abdul to leave the United
States and then filed for divorce. Although bigamous marriages are void, a party to a bigamous
marriage may nonetheless obtain a divorce. See R.C. 3105.01(A) (“The court of common pleas
may grant divorces [if] [e]ither party had a husband or wife living at the time of the marriage
from which the divorce is sought * * *.”).
{¶24} The trial court found Wife’s testimony as it related to Mr. Abdul’s 2014 marriage
to Ms. Elmousleh to be credible. The court found that, despite Husband’s denials, he was the
one who informed Wife in 2016, through the couple’s son, that Mr. Abdul was already married.
The court further found that Husband admitted speaking to Mr. Abdul, while pretending to be
Wife’s son, and telling him he needed to “admit to [Wife] that he was married.” The court also
found that the evidence demonstrated that Mr. Abdul did not support Wife and that the couple
never cohabited prior to the attempted 2016 marriage. It therefore concluded that Wife’s
attempted 2016 marriage to Mr. Abdul should be treated “as though it never existed.”
{¶25} Regarding the alleged religious marriage in 2015, Husband claims that his own
testimony and the pictures of Wife’s “open and intimate relationship” with Mr. Abdul constituted
sufficient evidence of a religious marriage. Husband testified that Wife is a devout Muslim and,
according to her religious beliefs, she should not eat from the same plate as Mr. Abdul, touch
12
him, or show him affection in public unless they are married to each other. Husband introduced
into evidence pictures of Wife and Mr. Abdul together while outside of the United States in
2015. He also attempted to introduce text messages from others in the Middle East, but the
messages were deemed inadmissible hearsay. Contrary to Husband’s claims, Wife testified at
the hearing that she never entered into any religious marriage with Mr. Abdul in 2015. She
testified that she is an artist and explained that the pictures were all taken in public amongst
many of her artist friends, including Mr. Abdul, while they all traveled to various art shows
throughout different countries. She also testified that it is “no problem” in her religion to be
affectionate with another person in public.
{¶26} The trial court found that Husband did not present sufficient evidence to prove
that a religious marriage occurred between Wife and Mr. Abdul in 2015, such as any
documentation establishing that said marriage occurred. The court declined to infer the existence
of a religious marriage based on Husband’s pictures of Wife and Mr. Abdul at art shows along
with inadmissible hearsay.
{¶27} Upon review, there is competent, credible evidence in the record supporting the
trial court’s conclusions that Mr. Abdul was already married when he attempted to marry Wife in
2016 and that Husband failed to present sufficient evidence of a 2015 religious marriage between
Wife and Mr. Abdul. As such, Husband has not demonstrated that the trial court abused its
discretion in failing to terminate his spousal support obligations.
{¶28} Accordingly, Husband’s first assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ERRED AND IT WAS AN ABUSE OF DISCRETION IN
FINDING APPELLANT IN CONTEMPT OF COURT.
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{¶29} In his fourth assignment of error, Husband argues that the trial court abused its
discretion in finding him in contempt of court for failure to pay spousal support. We disagree.
{¶30} Contempt of court may be generally defined as disobedience of a court order or
conduct that brings the administration of justice into disrespect or impedes a court’s ability to
perform its functions. Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036, 2007-Ohio-6400,
¶ 45. See also R.C. 2705.02. Civil contempt requires proof by clear and convincing evidence.
Zemla v. Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829, ¶ 11. “Clear and convincing
evidence is that measure or degree of proof which is more certain than a mere ‘preponderance of
the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus. “To establish contempt, the moving party must ‘establish a valid court
order, knowledge of the order by the defendant, and a violation of the order.’” Henry v. Henry,
9th Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 12, quoting State v. Komadina, 9th Dist. Lorain
No. 03CA008325, 2004-Ohio-4962, ¶ 11. “‘A prima facie case of contempt is established where
the divorce decree is before the court along with proof of the contemnor’s failure to comply
therewith.’” Nelson v. Nelson, 9th Dist. Medina No. 10CA0115-M, 2011-Ohio-6200, ¶ 30,
quoting Riley v. Riley, 9th Dist. Summit No. 22777, 2006-Ohio-656, ¶ 25, quoting Robinson v.
Robinson, 6th Dist. Wood No. 93WD053, 1994 WL 110846, *3 (Mar. 31, 1994). The alleged
contemnor must then present evidence of his inability to comply with the order or any other
available defense. Henry at ¶ 12; Zemla at ¶ 11.
{¶31} We review a trial court’s contempt finding for an abuse of discretion. Morrow v.
Becker, 9th Dist. Medina No. 11CA0066-M, 2012-Ohio-3875, ¶ 47. An abuse of discretion is
14
present when a trial court’s decision “‘is contrary to law, unreasonable, not supported by
evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507,
¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{¶32} Husband argues that the trial court abused its discretion and erred in finding him
in contempt of court for failure to pay spousal support because (1) he made substantial
overpayments toward spousal support and (2) the issue of Wife’s remarriage has not yet been
resolved. According to Husband, if he ultimately succeeds in this matter he will have made a
“gross overpayment with no reasonable expectation of recouping that overpayment.”
{¶33} Husband has failed to direct us to any legal authority in support of these
arguments, see App.R. 16(A)(7), and we likewise find no merit in them. There is no dispute that
the nunc pro tunc final judgment entry of divorce was a valid court order and that Husband was
aware of it. The divorce decree awarded spousal support to be paid from Husband to Wife in the
amount of $2,750 per month “effective August 5, 2014 and [continuing] until the death of either
party, the remarriage of the Wife or the cohabitation of the Wife with an unrelated adult male.”
Husband was awarded credit toward his spousal support obligations based on a $37,250 deferred
dowry payment and $15,200 in temporary spousal support payments. Ultimately, after
consideration of these payments, the court reduced Husband’s monthly spousal support payments
to $2,250 per month, beginning April 5, 2015, and lasting for a period of 61 months, at which
time his spousal support payments automatically reverted back to $2,750 per month.
{¶34} Husband never appealed the nunc pro tunc final judgment entry of divorce. At
the May 2018 final hearing on the motions, Wife testified that Husband paid her $4,000 in either
April or May of 2015, $2,000 of which she applied to a loan owed to her by Husband from
December 2014. Husband testified that he actually paid her $4,500, purportedly satisfying two
15
months of spousal support payments, but neither party submitted any documentation regarding
the $4,000 or $4,500 payment. No evidence of any additional payments beyond that was
introduced, and the trial court consequently found Husband to be in contempt of court for failure
to make spousal support payments. The court ordered Husband to serve four days in jail, but
permitted him to purge the contempt by making spousal support payments of $2,250 per month
(plus a 2% processing fee) for a period of four months, beginning November 1, 2018.
{¶35} Thus, we conclude that clear and convincing evidence was introduced showing
the existence of a valid court order along with Husband’s knowledge of, and failure to comply
with, that order. See Henry at ¶ 12. Husband introduced no evidence to either rebut this initial
showing of contempt or to establish any affirmative defense regarding his nonpayment of
spousal support. See Henry at ¶ 12, quoting Zemla at ¶ 11 (“‘Once the movant proves [her]
prima facie case, the contemnor must present evidence of [his] inability to comply with the order
or any other available defense.’”). See also Watral v. Watral, 9th Dist. Medina No. 05CA0017-
M, 2005-Ohio-6917, ¶ 13, quoting Herold v. Herold, 10th Dist. Franklin No. 04AP-206, 2004-
Ohio-6727, ¶ 28, citing Pugh v. Pugh, 15 Ohio St.3d 136, 140 (1984) (“It is well-established that
once a defendant’s failure to pay court-ordered [payments] has been sufficiently proven, the
defendant may raise inability to comply as an affirmative defense to contempt.”). Accordingly,
we cannot say that the trial court abused its discretion in finding Husband to be in contempt of
court for his failure to pay spousal support.
{¶36} Husband’s fourth assignment of error is overruled.
III.
{¶37} Husband’s assignments of error are all overruled. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is affirmed.
16
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶38} As to Husband’s fourth assignment of error, I respectfully dissent as I would
conclude that the trial court abused its discretion in finding Husband in contempt because no
willful violation of the trial court’s order was demonstrated. This is particularly so given the
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facts and circumstances before us; it is undisputed that wife at the very least attempted to get
remarried, and Husband did file a motion to terminate spousal support.
APPEARANCES:
JAMES R. RANFTL, Attorney at Law, for Appellant.
CANDACE KIM KNOX, Attorney at Law, for Appellee.