Johns v. Johns

[Cite as Johns v. Johns, 2013-Ohio-557.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BARBARA A. JOHNS C.A. No. 26393
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN C. JOHNS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 1979-12-4892
DECISION AND JOURNAL ENTRY
Dated: February 20, 2013
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, John C. Johns, M.D. (“Husband”), appeals from the March
28, 2012 judgment entry of the Summit County Court of Common Pleas. We affirm.
I.
{¶2} Husband and Barbara Johns (“Wife”) divorced after twenty-two years of marriage.
Pursuant to their separation agreement, Husband agreed to pay Wife spousal support in the
amount of $2,400 per month. In 2008, Husband stopped paying the full amount of spousal
support and Wife filed a motion for contempt. Husband then filed a motion to modify and/or
terminate spousal support.
{¶3} In a 2009 order, a magistrate of the trial court (1) modified spousal support to
$1,600 per month, (2) found Husband in contempt, (3) sentenced Husband to one day in the
Summit County Jail or 40 hours of community service, unless he purged his contempt by paying
the spousal support arrearage by April 1, 2009, and (4) issued judgment in favor of wife in the
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amount of $14,059.31. Husband objected and the trial court overruled his objections, thus
adopting the magistrate’s decision. Husband timely appealed.
{¶4} In Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, ¶ 19, this Court affirmed
the trial court’s finding of contempt. We also reversed, in part, and remanded in order for the
trial court to consider the Supreme Court of Ohio’s decision in Mandelbaum v. Mandelbaum,
121 Ohio St.3d 433, 2009-Ohio-1222, with regard to whether the modification was based upon a
substantial change in circumstances not contemplated at the time the parties entered into their
decree of divorce.
{¶5} On remand, the trial court issued an order finding, among other things, that: (1) it
retained jurisdiction to modify spousal support, (2) Husband’s retirement, health problems and
the devaluation of his IRA are substantial changes in circumstance, and (3) the parties stipulated
that these changes in circumstance were not contemplated at the time of their divorce. In so
holding, the trial court modified spousal support to $1,600 per month. Further, the trial court
held Husband in contempt, sentenced him to one day in the Summit County Jail or 40 hours
community service if he fails to pay the arrearage by March 1, 2010, and granted judgment in
favor of Wife in the amount of $34,859.31.
{¶6} Husband did not appeal this order.
{¶7} In May of 2010, Wife filed several motions including one for execution of
sentence regarding the contempt. Husband then filed a second motion to reduce and/or terminate
spousal support, along with several motions to appear at the hearing telephonically due to his
failing health. Wife opposed Husband’s motion by filing a motion to require Husband to
personally appear in court.
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{¶8} After a purge hearing in September 2011, attended only by Wife, the magistrate
issued a decision extending Husband’s purge period to December 1, 2011, and ordering him to
personally appear one week later in order to establish whether the contempt had been purged.
The decision states that if Husband fails to appear at the hearing or purge his contempt, the trial
court shall issue a capias for his arrest and may impose sentence immediately. Husband objected
alleging that he was not given the opportunity to participate in the September hearing, and
attached an affidavit further detailing his financial situation. Because no record of the hearing
existed, the trial court remanded to the magistrate for further proceedings on December 8, 2011,
and ordered Husband to personally appear at the hearing.
{¶9} Husband filed another motion to appear telephonically which was opposed by
Wife. The trial court denied Husband’s motion.
{¶10} At the December purge hearing, Husband failed to appear. The magistrate found
that Husband paid $0 dollars toward his spousal support obligation since the 2009 contempt
finding and sentenced him to one day in the Summit County Jail. In addition, the magistrate
ordered Husband to appear on March 1, 2012, in order to serve his sentence. The magistrate also
dismissed all pending motions, including Husband’s motion to modify/terminate spousal support.
{¶11} Husband objected on the basis that he should not have been ordered to personally
appear due to his physical limitations and inability to travel, and, as such, was unable to appear
in March to serve his sentence. The trial court overruled Husband’s objections, adopted the
magistrate’s decision, and ordered Husband to report to the Summit County Jail on April 30,
2012, for execution of sentence.
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{¶12} Husband timely appealed and raises five assignments of error for our
consideration. For ease of discussion, we have combined and rearranged Husband’s assignments
of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY IMPOSING A SENTENCE FOR
CONTEMPT WHEN THE PAST DUE SPOUSAL SUPPORT HAD BEEN
REDUCED TO JUDGMENT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY IMPOSING A PURGE CONDITION WHICH
IS NOT SUFFICIENTLY CLEAR TO ALLOW [HUSBAND] TO OBEY. THE
PURGE CONDITION IS THEREFORE UNREASONABLE AND
IMPOSSIBLE FOR [HUSBAND] TO MEET.
{¶13} In his first assignment of error, Husband argues that because his arrearage was
reduced to a lump sum in 2009, it became a civil debt and, therefore, imprisonment is precluded
under Article I, Section 15 of the Ohio Constitution. Further, in his third assignment of error,
Husband argues that the 2009 order is “unclear, ambiguous and subject to more than one
interpretation,” because it does not specify the amount of arrearage that he was required to pay in
order to purge the contempt.
{¶14} It is well-settled that “[r]es judicata bars the assertion of claims against a valid,
final judgment * * * that have been raised or could have been raised on appeal.” State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175(1967), paragraph nine of the syllabus. Here, Husband could have raised these claims in his
appeal from the first 2009 order. In addition, assuming he was not already barred by res judicata,
Husband could have raised these claims in the subsequent order which resulted from this Court’s
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remand regarding Mandelbaum. However, Husband failed to do so. As such, Husband’s claims
are now barred by res judicata and we decline to further address them.
{¶15} Husband’s first and third assignments of error are overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY MODIFYING AND THEREBY
ENHANCING THE SENTENCE ORIGINALLY IMPOSED FOR CONTEMPT.
{¶16} In his second assignment of error, Husband argues that the trial court erred by
sentencing him to one day in the Summit County Jail instead of giving him the option of either
one day in the Summit County Jail, or 40 hours of community service, as set forth in the 2009
judgment entry.
{¶17} We note that Husband failed to specifically raise this argument in his objections to
the magistrate’s decision. Pursuant to Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain
error, a party shall not assign as error on appeal the court’s adoption of any factual finding or
legal conclusion * * * unless the party has objected to that finding or conclusion as required by
Civ.R. 53(D)(3)(b).” In his objections to the magistrate’s decision, Husband generally objected
to the entire decision. However, he failed to specifically argue that his sentence was enhanced
by removing the option of community service. See Civ. R. 53(D)(3)(b)(ii) (requiring objections
to “be specific and state with particularity all grounds for objection”). Therefore, Husband
forfeited this argument on appeal unless he can establish plain error.
{¶18} “In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error * * *
seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79
Ohio St.3d 116 (1997), syllabus. We conclude that the trial court did not commit plain error in
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sentencing Husband to serve one day in the Summit County Jail. The record indicates that
possible jail time was always part of Husband’s original sentence, and nowhere in the record did
the trial court foreclose its discretion to decide whether Husband would go to jail or participate in
community service.
{¶19} Husband’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY DISMISSING [HUSBAND’S] MOTION TO
MODIFY OR TERMINATE SPOUSAL SUPPORT.
{¶20} In his fourth assignment of error, Husband argues that the trial court erred in
dismissing his motion to modify/terminate spousal support without first considering his
deposition testimony in lieu of personally appearing at the hearing.
{¶21} “This Court reviews a spousal support award under an abuse of discretion
standard.” Hirt v. Hirt, 9th Dist. No. 03CA0110-M, 2004-Ohio-4318, ¶ 8. An abuse of
discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion
standard, an appellate court may not substitute its judgment for that of the trial court. Pons v.
Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶22} Here, the trial court ordered Husband to personally appear at the purge/motions
hearing, but Husband failed to abide by the court’s order. Further, the record shows that the trial
court continued this hearing on numerous occasions in order to accommodate both parties and
allow Husband extra time to purge his contempt. Because Husband was not present to argue the
merits of his motion to modify/terminate spousal support, when ordered to do so by the court, we
cannot say that the trial court abused its discretion in dismissing the motion at that time.
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{¶23} Husband’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED BY FAILING TO CONDUCT AN
INDEPENDENT REVIEW OF THE MAGISTRATE’S DECISION.
{¶24} In his fifth assignment of error, Husband argues that the trial court did not comply
with Civ.R. 53(D)(4)(d), which states that:
If one or more objections to a magistrate’s decision are timely filed, the court
shall rule on those objections. In ruling on objections, the court shall undertake an
independent review as to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law. Before
so ruling, the court may hear additional evidence but may refuse to do so unless
the objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.
Husband alleges that the trial court erred by failing to conduct an independent review of the
magistrate’s decision. Further Husband contends that the trial court merely recited the
procedural history of the case, and did not indicate whether it agreed with the magistrate’s
finding regarding contempt. We disagree.
{¶25} First, in its March 28, 2012 judgment entry, the trial court states that it reviewed
the pleadings, transcripts of hearing, and other documents in the file. Second, the trial court
addressed and analyzed each of Husband’s objections to the magistrate’s decision and provided
its reasoning in overruling each objection. Third, by imposing sentence, the trial court clearly
agreed with the magistrate’s finding that Husband failed to purge his contempt.
{¶26} Husband’s fifth assignment of error is overruled.
III.
{¶27} In overruling all of Husband’s assignments of error, the judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
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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 Summit, 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.
CARLA MOORE
FOR THE COURT
CARR, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
SUSAN K. PRITCHARD, Attorney at Law, for Appellant.
RANDAL A. LOWRY, Attorney at Law, for Appellee.