Burke v. Burke

[Cite as Burke v. Burke, 2014-Ohio-1402.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
LAURA L. BURKE ) CASE NO. 13 MA 24
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JAMES C. BURKE )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, of
Mahoning County, Ohio
Case No. 92 DR 334
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Laura Burke, Pro se
3811 Mercedes Place
Canfield, Ohio 44406
For Defendant-Appellant: Atty. Steven H. Slive
Slive & Slive Co., L.P.A.
526 Superior Avenue, Suite 935
Cleveland, Ohio 44114
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 28, 2014
[Cite as Burke v. Burke, 2014-Ohio-1402.]
WAITE, J.
{¶1} Appellant James C. Burke is appealing, for the second time, the purge
condition imposed by the trial court after it found him in contempt for failing to pay
spousal support. In the previous appeal, we held that the trial court’s prior order
allowing Appellant to purge his contempt by paying his future monthly support
obligation was not a valid purge condition. Burke v. Burke, 7th Dist. No. 11 MA 166,
2012-Ohio-6279, ¶32 (“Burke I”). We held that the purge condition was merely a
reaffirmation of the original support order and was an attempt to regulate Appellant’s
future conduct rather than punish him for past conduct. Id. at ¶31. We voided the
purge condition and remanded the case to the trial court. Id. at ¶44. On remand, the
trial court ordered Appellant to pay an additional $100 each month toward his
spousal support arrearage. Appellant argues that the new purge condition again
regulates future conduct, and furthermore, does not allow him a reasonable
opportunity to satisfy the purge condition. We agree with Appellant that the new
purge condition attempts to regulate future conduct, is unclear, and does not take
into account his financial hardship, which is a matter of record. We once again void
the purge condition and remand the case for a new purge condition to be imposed.
Background
{¶2} The history of this case can be found in Burke I. Briefly, the parties
were married on August 26, 1978, and obtained a decree of dissolution on May 22,
1992. Appellant was ordered to pay $650 per month in spousal support. Appellant
attempted to modify spousal support a number of times, but because the court did
not reserve jurisdiction to modify spousal support, it overruled Appellant’s motions to
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modify. In 2003, Appellant began having financial troubles. He filed for bankruptcy
in 2006. In 2007, Appellant’s monthly spousal support payment was increased to
$795.60 due to arrearages. He stopped making any spousal support payments after
he was laid off in January of 2009.
{¶3} On January 21, 2011, Appellee filed a motion to show cause as to why
Appellant should not be held in contempt for failing to pay spousal support. At the
time the motion was filed, Appellee contended that Appellant owed an arrearage in
excess of $27,000.
{¶4} After a hearing on May 25, 2011, the trial court found Appellant in
contempt and ordered him to spend 10 days in jail. In the court’s judgment entry of
August 23, 2011, the court found that Appellant was in arrears on spousal support in
the amount of $29,860.39 through May 31, 2011. The judgment entry stated that
Appellant “may purge himself of said contempt by paying the monthly support
payments beginning September 1, 2011.” Appellant filed an appeal of many aspects
of the contempt order, but the only issue that was reversed and remanded was the
purge condition. We held that “the purported purge condition imposed by the trial
court in this case is void insofar as it attempts to regulate James’ future conduct.” Id.
at ¶28. On remand, the trial court deleted the offending language from paragraph 3
of the contempt order, and replaced it with the following: “Defendant may purge
himself of said contempt by paying an additional $100 each month toward his lump
sum arrearages.” (1/30/13 J.E.) Appellant appealed this modified order on February
28, 2013. Appellee has not responded to this appeal. App.R. 18(C) states: “If an
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appellee fails to file the appellee’s brief within the time provided by this rule * * * the
court may accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
ASSIGNMENT OF ERROR
The Court erred when it ordered a purge condition requiring Appellant
to pay his spousal support order plus an additional $100.00 towards
arrearages per month because this type of indefinite purge Order does
not afford Appellant an opportunity to purge himself of the contempt and
attempts to regulate future conduct of Appellant.
{¶5} Appellant makes two arguments on appeal. First, he argues that the
condition for purging his contempt is an attempt to regulate future conduct, just as it
was in the earlier appeal, and that the case should be remanded once again for the
trial court to impose a legal purge condition. We agree with Appellant.
{¶6} Contempt proceedings can be described as primarily either civil or
criminal. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610(1980). Because all contempt involves some type of sanction or punishment, the
distinction between civil and criminal contempt is defined by the purpose to be served
by the sanction. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d
265 (2001). If the sanction is remedial or coercive, and for the benefit of the
complainant rather than the court, the contempt proceeding is usually classified as
civil. Brown at 253. In civil contempt, the punishment is conditional, and for this
reason the contemnor is said to carry the keys of his prison in his pocket because he
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will be freed if he performs the condition. Pugh v. Pugh, 15 Ohio St.3d 136, 139, 472
N.E.2d 1085 (1984). The condition for terminating the contempt sanction is referred
to as the purge condition. Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783,
979 N.E.2d 297, ¶16.
{¶7} An appellate court will not reverse a trial court’s decision in a contempt
proceeding absent a showing of an abuse of discretion. State ex rel. Ventrone v.
Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981).
{¶8} Because contempt proceedings are based on the contemnor’s violation
of a previous court order, i.e., for past conduct of the contemnor, a purge condition
that punishes future conduct is invalid. Burke I, ¶30. This problem often arises in
domestic relations cases, where the court attempts to punish a past failure to make
support payments by requiring the contemnor to make future support payments. “A
contempt order which regulates future conduct ‘simply amounts to the court’s
reaffirmation of its previous support order and can have no effect since any effort to
punish a future violation of the support order would require new notice, hearing and
determination.’ ” Marden v. Marden, 108 Ohio App.3d 568, 571, 671 N.E.2d 331(12th Dist.1996). This is what had occurred in Burke I.
{¶9} The new condition that the trial court imposed after the case was
remanded creates a similar problem. The court reduced Appellant's arrearages to a
lump sum judgment, but then required Appellant to pay $100 per month on his
arrearages, which technically no longer existed because they were converted to a
new money judgment. Since the old arrearages no longer existed, any payments
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that Appellant was ordered to make referred to future payments on the newly created
lump sum judgment.
{¶10} Furthermore, for a purge condition to be valid, it must provide a "clear
opportunity to purge the contempt" rather than regulate future conduct. Frey v. Frey,
197 Ohio App.3d 273, 2011-Ohio-6012, 967 N.E.2d 246, ¶37 (3d Dist.); see also,
Marden, supra, 108 Ohio App.3d at 571. In this case, it is not clear how long
Appellant must continue to make the additional $100 monthly payments in order to
satisfy the purge condition. We conclude that the purge mechanism was unclear,
regulated future conduct, and did not provide Appellant with a reasonable opportunity
to satisfy the purge mechanism.
{¶11} Appellant’s second argument is that the purge condition does not give a
reasonable opportunity to purge his contempt because it requires him to make his full
spousal support payments and an extra $100 per month until his entire lump sum
judgment is paid off. He contends that he does not have the means to make these
payments, and that his financial hardship is a matter of record. Appellee did not file a
response in this appeal, and Appellant’s version of the facts is consistent with the
findings presented in the trial court’s judgment entry of August 23, 2011. The court
was fully aware of Appellant’s financial hardships, his medical problems (including
four heart attacks and triple-bypass surgery), his bankruptcy, his diligence in paying
off his child support arrearages, and his fairly consistent payment of spousal support
from 1992 through 2008. Appellant does not own a home, drives a ten-year-old
Dodge truck, and supports himself mainly on Social Security and withdrawals from
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savings accounts. Given these facts, Appellant could not reasonably meet the purge
condition set by the trial court.
Conclusion
{¶12} We sustain Appellant's assignment of error. Similar to our decision in
Burke I, we again void the purge condition contained in the trial court’s judgment
entry of January 30, 2013, and we remand this case so that a clear and distinct purge
condition can be imposed that does not regulate future conduct and takes into
account Appellant's financial hardship.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.