Forman v. Forman

[Cite as Forman v. Forman, 2014-Ohio-3545.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
MICHELLE FORMAN,
PLAINTIFF-APPELLEE, CASE NO. 9-13-67
v.
SCOTT FORMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Family Court
Trial Court No. 12 DR 0159
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: August 18, 2014
APPEARANCES:
Kevin P. Collins for Appellant
Jeff Ratliff for Appellee
Case No. 9-13-67
PRESTON, J.
{¶1} Defendant-appellant, Scott Forman (“Scott”), appeals the October 28,
2013 judgment entry of the Marion County Court of Common Pleas, Family
Division, granting divorce from the plaintiff-appellee, Michelle Forman
(“Michelle”). For the reasons that follow, we affirm in part, and reverse in part.
{¶2} The facts relevant to this appeal are as follows. Scott and Michelle
were married on June 5, 2004. (Doc. No. 1). They separated in November 2011
and Michelle filed a complaint for divorce on May 11, 2012. (Aug. 6, 2013, Tr. at
69); (Doc. No. 1). This was a second marriage for them both, and while each had
children from their previous marriages, no children were born as issue of this
marriage. (Doc. Nos. 1, 63); (Aug. 6, 2013 Tr. at 68, 107, 162).
{¶3} Scott filed his answer and counterclaim and a motion for
reconciliation on June 7, 2012. (Doc. Nos. 8, 11). On June 13, 2012, Michelle
filed a motion in opposition to Scott’s motion for reconciliation and her answer to
Scott’s counterclaim. (Doc. Nos. 12, 13). The trial court denied Scott’s motion
for reconciliation on August 9, 2012. (Aug. 9, 2012 JE, Doc. No. 17).
{¶4} Michelle filed a contempt motion on December 18, 2012, alleging that
Scott violated the trial court’s May 11, 2012 mutual restraining order. (Doc. No.
39).
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{¶5} Michelle and Scott filed two sets of “Agreements and Stipulations” on
March 4, 2013. (Doc. Nos. 46, 47). They filed a third “Agreement and
Stipulations” on March 5, 2013. (Doc. No. 48). Because of Michelle’s concerns
regarding the enforcement of the “Agreements and Stipulations,” the trial court
issued a judgment entry on April 26, 2013, ordering, in relevant part, Scott to
“take all steps necessary to have his name and his daughter’s name removed from
the cell phone account(s) listed in [Michelle’s] name held through
Verizon/Frontier Communications.” (Apr. 26, 2013 JE, Doc. No. 50).
{¶6} On May 17, 2013, Michelle filed a motion for contempt against Scott
for his alleged failure to remove his and his daughter’s phones from Michelle’s
Verizon account by April 30, 2013. (Doc. No. 52). On May 23, 2013, Michelle
filed a motion requesting attorney fees resulting from Scott’s alleged failure to
comply with discovery or otherwise negotiate timely or reasonably to resolve
property or debt issues before the trial court. (Doc. No. 53).
{¶7} On June 14, 2013, Scott filed a motion for contempt, alleging that
Michelle violated a number of the trial court’s orders. (Doc. No. 57). On June 27,
2013, Scott filed a second motion for contempt, alleging that Michelle failed to
comply with the trial court’s March 19, 2013 order. (Doc. No. 67). Scott filed a
third motion for contempt on August 12, 2013, alleging, in relevant part, that
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Michelle violated the trial court’s May 11, 2012 mutual restraining order by
disposing of one of two dogs obtained during the marriage. (Doc. No. 74).
{¶8} The matter came for final hearing on June 28, 2013 and August 6,
2013 on Michelle’s complaint for divorce, Michelle’s contempt motions, filed
December 18, 2012 and May 17, 2013, Scott’s contempt motion, filed June 14,
2013, and Michelle’s motion for attorney fees, filed May 24, 2013. (Oct. 28, 2013
JE, Doc. No. 77).1 This matter also came for hearing on September 30, 2013 on
Scott’s contempt motion filed June 14, 2013. (Id.).2 The trial court heard
testimony from Michelle, Scott, David Kelley (“Kelley”), a pension consultant
with QDRO Consultants Company, William Napoli, Jr. (“Napoli”), the president
of, and actuary consultant with, American Benefit Evaluators, and Larry Heiser, a
family law attorney in Marion, Ohio.
{¶9} On October 28, 2013, the trial court issued a final divorce decree.
(Oct. 28, 2013 JE, Doc. No. 77). In its final divorce decree, the trial court divided
the marital portion of each party’s pension and retirement benefits and the parties’
marital and separate debts, denied Michelle’s claim on Scott’s real estate owned
prior to the marriage, and issued a decision on the motions for contempt and
1
The October 28, 2013 judgment entry incorrectly states that the matter was heard on June 24, 2013 and
August 5, 2013. (Oct. 28, 2013 JE, Doc. No. 77). The June 28, 2013 transcript incorrectly identifies the
hearing as taking place on June 20, 2013. (June 28, 2013 Tr. at 1).
2
The October 28, 2013 judgment entry incorrectly states that the matter was heard on September 29, 2013.
(Oct. 28, 2013 JE, Doc. No. 77). The October 28, 2013 judgment entry also incorrectly states that the trial
court heard Scott’s contempt motion, filed June 14, 2013, Michelle’s contempt motion, filed May 17, 2013,
and Michelle’s motion for attorney fees filed May 24, 2013, on September 30, 2013, when those matters
were litigated at the August 6, 2013 hearing. (See id., Aug. 6, 2013 Tr., and Sept. 30, 2013 Tr.).
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motion for attorney fees. (Id. at 2). Further, the trial court concluded that the term
of Michelle and Scott’s marriage was from June 5, 2004 to July 1, 2012. (Id.).
{¶10} On November 26, 2013, a purge hearing was held, and the trial court
found that Scott failed to purge and ordered Scott to pay a fine of $500.00. (Nov.
27, 2013 JE, Doc. No. 81).
{¶11} Scott filed his notice of appeal of the October 28, 2013 judgment
entry and a motion requesting a stay of execution of his sentence on November 27,
2013. (Doc. Nos. 78, 79). The trial court granted Scott’s motion requesting a stay
of execution of his sentence. (Nov. 27, 2013 JE, Doc. No. 81). Scott raises five
assignments of error for our review. We elect to address some of Scott’s
assignments of error out of the order presented in his brief, combining them where
appropriate.
Assignment of Error No. I
The family court erred to the prejudice of defendant-appellant
by using David Kelley’s valuation for purposes of dividing
defendant-appellant’s STRS by division of property order.
{¶12} In his first assignment of error, Scott argues that the trial court erred
in dividing his State Teacher’s Retirement System (“STRS”) pension benefits
using Kelley’s valuation. Specifically, Scott argues that the trial court erred in
failing to use the $183,380.05 value recommended by his expert witness, Napoli,
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which is based on the Internal Revenue Code (“IRC”) method and assumes that
Scott will retire at age 65.
{¶13} In determining the equitable distribution of assets in a divorce
proceeding, the trial court engages in a two-step process—first, the trial court must
determine whether property is marital or separate property, and, second, the trial
court must equitably allocate the marital and separate property. Schalk v. Schalk,
3d Dist. Seneca No. 13-07-13, 2008-Ohio-829, ¶ 6, citing Gibson v. Gibson, 3d
Dist. Marion No. 9-07-06, 2007-Ohio-6965, ¶ 29, citing R.C. 3105.171(B), (D).
“Pension or retirement benefits accumulated during the course of a marriage are
marital assets subject to property division in a divorce action.” Erb v. Erb, 75
Ohio St. 3d 18, 20 (1996), citing Holcomb v. Holcomb, 44 Ohio St. 3d 128, 132
(1989), Hoyt v. Hoyt, 53 Ohio St. 3d 177, 178, (1990), and R.C.
3105.171(A)(3)(a)(i).
{¶14} Once the characterization has been made, “the court should normally
award each spouse his or her separate property and then distribute the marital
estate equally unless an equal division would be inequitable. Barkley v. Barkley,
119 Ohio App. 3d 155, 159 (4th Dist.1997), citing R.C. 3105.171(C), (D). See also
R.C. 3105.171(B). The division of a pension or retirement benefit is left to the
trial court’s broad discretion. Hoyt at 180. “The trial court must have the
flexibility to make an equitable decision based upon the circumstances of the case,
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the status of the parties, the nature, terms and conditions of the pension plan, and
the reasonableness of the result.” Id. The trial court’s distribution of pension or
retirement benefits will not be disturbed on appeal absent an abuse of discretion.
Id. at 180-181. An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219 (1983). A reviewing court may not simply substitute its judgment for
that of the trial court. Id.
{¶15} Scott was employed in the education field throughout the marriage,
and Michelle was employed as a healthcare professional throughout the marriage.
(Aug. 6, 2013 Tr. at 22-23, 72). As part of Scott’s employment in public
education, he was entitled to pension benefits under the STRS defined-benefit
plan. (June 28, 2013 Tr. at 27). Upon retirement, Michelle anticipated receiving
Social Security benefits and income from her Ohio Health cash balance account
and her defined-contribution 403(b) plan. (Id. at 26).
{¶16} At the final hearing, both parties presented the testimony of expert
witnesses regarding the value of their respective pension and retirement benefits.
Michelle’s expert witness, Kelley, testified that he evaluated Scott’s and
Michelle’s pension and retirement benefits using the Pension Benefit Guaranty
Corporation (“PBGC”) method, and Scott’s expert witness, Napoli, testified that
he used the IRC method to create an actuarial present value of their pension and
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retirement benefits. (Id. at 18, 92). Likewise, Kelley testified that his valuation of
Scott’s STRS retirement benefits was based on the assumption that Scott would
retire at the earliest time available to him, age 55, and Napoli testified that he
valued Scott’s STRS retirement benefits based on the assumption that Scott would
retire at age 65, but also provided the valuation based on retirement at age 55. (Id.
at 28, 130-131).
{¶17} First, Kelley testified that the PBGC and the IRC methods for
pension and retirement benefit evaluations are the two methods that are the most
commonly accepted, “[a]nd both are absolutely, positively accepted and used.”
(Id. at 16-17). Moreover, Kelley testified that because both methods are accepted,
it is a matter of professional preference as to which method is used to conduct an
evaluation. (Id. at 17). As such, Kelley testified that he uses the PBGC method
because “[i]t is the most objective analysis of how much it would cost for someone
to go out and buy replacement annuity in the Annuity Market Place.” (Id. at 18).
Kelley explained, “Every three months, the PBGC commissions a life insurance
council to go out and check, I think it’s with 25 life insurance companies, exactly
how much it would cost amongst different ages and genders to buy a replacement
vehicle.” (Id.). Kelley stated that he uses the PBGC method to give divorce
courts an idea of the fair market value of a pension or retirement plan. (Id.).
Kelley also testified that he does not use the IRC method because it produces
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significantly lower values and “was only invented to save pension plans because
they were collapsing in the early 2000’s.” (Id. at 19). He stated, “It will always
end up with a lower value than is necessary for the nonparticipant spouse to
replace that annuity in the annuity market.” (Id. at 23). As a result, Kelley
testified that he uses the PGBC method because it is more reflective of the fair
market value. (Id. at 24).
{¶18} Kelley testified that he valued Michelle’s total retirement benefits to
be $205,150.28. (Id. at 31). In calculating Michelle’s total retirement benefits,
Kelley testified that he valued Michelle’s Ohio Health cash-balance plan at
$45,863.01, when using the tracing method, or $18,409.75, when using the
coverture method. (Id. at 26, 42). Furthermore, Kelley testified that he prefers
using the tracing method over the coverture method when evaluating cash-balance
plans and that Michelle agreed to use the tracing method even though it benefited
Scott more. (Id. at 43). Next, Kelley stated that he did not need to evaluate
Michelle’s 403(b) plan, which had a value of $74,231.24, because “what you see
is what you get.” (Id. at 26). Lastly, he testified that he valued Michelle’s Social
Security benefits to be $85,056.03 by using the PBGC method, which required
him to examine Michelle’s earning history through the date of his report and
calculate how much she would receive to determine the actuarial present value.
(Id. at 26-27). Kelley testified that he used the same interest rates to calculate the
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value of Michelle’s Social Security benefits as he did for Scott’s STRS pension.
(Id.).
{¶19} Kelley testified that he valued the marital portion Scott’s STRS
retirement plan at $355,761.91 based on an assumption that Scott would retire at
age 55. (Aug. 6, 2013 Tr. at 10).3 Kelley testified that his value was based on
eight years of marriage and Scott’s 29 years of service at the time of his
evaluation. (Id. at 8). Kelley testified that he accounted for Scott’s prior divorce
and the portion of Scott’s STRS that was awarded to his previous spouse. (June
28, 2013 Tr. at 40, 70).4
{¶20} Kelley testified that he calculated Scott’s STRS pension value based
on the assumption that he would retire at age 55 because age 55 was the earliest
age at which Scott could retire. (Id. at 28). Kelley testified that there are a
number of assumptions that must be made when calculating an actuarial present
value and the most significant assumption is at what age a person will retire. (Id.
at 52). Kelley testified that he “always uses the earliest age of retirement at – with
full benefits or the earlier age if they have a high – if they have a subsidized
3
Kelley initially testified that he valued the marital portion of Scott’s STRS pension to be $363,572.29
based on his September 25, 2012 report. (June 28, 2013 Tr. at 27). Kelley determined the marital portion
of Scott’s STRS pension to be $363,572.29 by applying a coverture fraction to Kelley’s overall valuation of
Scott’s pension, which was $1,277,503.17. (Doc. No. 63). The coverture fraction Kelley used considered
8 years of marriage and 28.11 years of service. (June 28, 2013 Tr. at 27, 29). Due to a change in the Cost
of Living Adjustment (“COLA”) for STRS, Kelley provided a new valuation of the marital portion of
Scott’s STRS, which was $355,761.91, taking into consideration the COLA changes. (Aug. 6, 2013 Tr. at
6).
4
See Forman v. Forman, 3d Dist. Marion No. 9-06-63, 2007-Ohio-4938.
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benefit” because it is the most logical assumption and STRS offers a subsidized
benefit. (Id. at 52-53).
{¶21} Moreover, Kelley testified that he was concerned with Napoli’s
valuation of Scott’s STRS pension benefits, namely the $131,222.84 valuation,
“[b]ecause it’s inconsistent with other present values [he has] seen come out of
[Napoli’s] office.” (Id. at 60). He stated, “I’ve seen him do STRS present values,
in one case * * * when he projected that the participant would work 15 more
years, retire at 52. That inconsistency I found offensive * * *.” (Id. at 60-61).
Further, Kelley stated that he has seen Napoli use different methods “[w]hen he
represented the nonparticipant spouse and it would end up with a far higher
present value * * *.” (Id. at 61).
{¶22} Unlike Kelley, Scott’s expert witness, Napoli, testified that he uses
the IRC method because he believes the PBGC method results in lower interest
rates and higher present values. (Id. at 92). Napoli explained that he disagrees
with the PBGC method because of the way the method discards the best interest
rates in favor of an average, which he contended is inconsistent with the
marketplace. (Id. at 93-94). According to Napoli, the IRC method is based on the
Corporate Bond Segment Rates published by the Internal Revenue Service, which
“are the rates that are required to be used by all qualified plans in the United States
to determine the minimum lump sum cash out when a – when an individual either
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retires or elects a lump sum or terminates their employment and elects a lump
sum.” (Id. at 92). Further, Napoli stated that he “basically” uses the “High
Quality Corporate Bond rate” in conducting his evaluations because it best mimics
the marketplace since it solicits bids from at least five insurance companies and
then selects the best rate. (Id. at 93).
{¶23} Next, Napoli testified that a second difference between his evaluation
and Kelley’s evaluation was the assumption regarding when Scott will retire. (Id.
at 95). Napoli testified that Kelley assumed Scott would retire at age 55 because it
would produce the largest present value and that Kelley’s assumption is improper
because it detrimentally impacts Scott’s liability to Michelle. (Id. at 96).
{¶24} Napoli testified that he valued Michelle’s cash balance account at
$46,345.00, her 403(b) plan at $69,179.68, and her Social Security benefits at
$43,238.00.5 (Id. at 109-110); (Doc. No. 63). According to Napoli, his valuation
of Michelle’s Ohio Health cash-balance account and 403(b) plan was fairly close
to Kelley’s valuation. (Id. at 110-111). Napoli testified that his valuation of
Michelle’s Social Security benefits differed from Kelley’s based upon the different
application of interest rates under the PBGC and IRC methods and differences in
the cost of living calculation. (Id. at 112). Napoli testified that he provided three
5
Napoli testified that he prepared an evaluation of Scott’s STRS retirement benefits applying the
hypothetical Social Security offset in two ways—using Scott’s wage history as a government employee and
using Michelle’s wage history. (Id. at 99). However, Napoli acknowledged that the monetary difference in
using either hypothetical method was insignificant because he valued Scott’s hypothetical Social Security
benefits at $45,791.00 and Michelle’s hypothetical Social Security benefits at $43,238.00. (Id.); (Doc. No.
63).
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values of Scott’s STRS retirement plan—$131,222.84, under the deferred vested
method, $183,380.05, under the sliding coverture method, and $258,993.56, if he
assumed Scott would retire at age 55 instead of age 65. (Id. at 130-131); (Doc.
No. 63). Of the three valuations, Napoli testified that he recommended selecting
the value of $131,222.84 as the amount subject to equitable distribution. (Aug. 6,
2013 Tr. at 130); (Doc. No. 63). Specifically, Napoli testified that $131,222.84
was based on the assumption that Scott would stop working with 28 years of
service and defer receiving his retirement benefit until age 65. (Id. at 135).
{¶25} The trial court concluded that Kelley’s method of valuing Scott’s and
Michelle’s pension and retirement benefits to be the most equitable and ordered
that Michelle be awarded 20.9 percent of $353,411.91 as her share of the marital
portion of Scott’s STRS retirement plan.6 (Oct. 28, 2013 JE, Doc. No. 77). The
trial court reasoned that a traditional coverture fraction was inapplicable in this
case because the marital value of Scott’s STRS pension was offset by the marital
value of Michelle’s retirement benefits. (Id. at 3). The trial court also noted that
the parties stipulated that Scott would be given a credit of $2,350.00 toward his
pension for his share of Michelle’s IRA account and that the value of Scott’s
pension with the setoff was $353,411.91. (Id.); (Doc. No. 47); (Aug. 6, 2013 Tr.
6
The trial court obtained the 20.9 percent figure by combining the marital value of Scott’s STRS pension
benefits minus the setoff, $353,411.91, and Michelle’s total marital retirement benefits, $205,150.28;
dividing the sum in half; subtracting Michelle’s total retirement benefit from that one-half amount; and
putting that amount over Scott’s STRS pension value with the setoff (($355,761.91 - $2,350) +
$205,150.28 = $558,562.19. $558,562.19 ÷ 2 = $279,281.28. $279,281.28 - $205,150.28 = $74,130.82.
$74,130.82 ÷ $353,411.91 = .209). (Oct. 28, 2013 JE, Doc. No. 77). (See also Aug 6, 2013 Tr. at 32-33).
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at 27). Further, the trial court ordered Scott to obtain a term life insurance policy
in the amount of $80,000 to preserve Michelle’s survivorship rights in Scott’s
STRS pension. (Id. at 4).
{¶26} First, Scott does not dispute the characterization of his and
Michelle’s pension and retirement benefits accumulated during the course of the
marriage, so we will not address it. Second, Scott does not argue that the trial
court abused its discretion in allocating his and Michelle’s pension and retirement
benefits because Kelley and Napoli used the same method in arriving at the end
result. (See Appellant’s Reply Brief at 1). (See also Aug. 6, 2013 Tr. at 14).
Likewise, Scott does not argue that the valuations presented by Kelley are wrong.
(Id.). Rather, Scott argues that the trial court erred in using Kelley’s valuation
instead of Napoli’s valuation because Napoli’s valuation used different interest
rates to determine the value of Scott’s pension benefits, and Napoli assumed Scott
would retire at a later time than Kelley assumed. (Id.).7
{¶27} We conclude that the trial court did not abuse its discretion in
determining that Kelley’s valuation of Scott’s and Michelle’s pension and
retirement benefits was the most equitable approach. The trial court heard the
testimony of Kelley and Napoli regarding the PBGC and IRC valuation methods
7
Although Napoli testified that the $131,222.84 valuation should be used in the equitable distribution of
Scott’s and Michelle’s pension and retirement benefits, Napoli testified that the $183,380.05 valuation
should be used if the court determined that Scott and Michelle’s pension and retirement benefits should be
divided by a Qualified Domestic Relations Order or other domestic relations order. (June 28, 2013 Tr. at
130); (Doc. No. 63).
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used to calculate the present value of Scott’s STRS pension benefits. Both
witnesses were properly qualified as experts in the field of valuing pension and
retirement benefits pursuant to Michelle’s and Scott’s stipulations. (Aug. 6, 2013
Tr. at 11, 90). Kelley and Napoli acknowledged that the PBGC and IRC methods
are acceptable and used for calculating the present value of pension and retirement
benefits. (Id. at 16-17, 92, 106-107). The fact that Kelley’s valuation of Scott’s
STRS retirement benefits resulted in a larger amount than Napoli’s valuation does
not amount to an abuse of discretion. Scott provided no evidence or authority that
the trial court abused its discretion in determining Kelley’s valuation of Scott’s
and Michelle’s pension and retirement benefits other than the blanket statement,
“The family court erred in employing the PBGC method rather than the IRC
method.” (Appellant’s Brief at 11). This court cannot simply insert the valuation
Scott desires absent a showing of an abuse of discretion, which Scott failed to
demonstrate. See Blakemore, 5 Ohio St. 3d at 219.
{¶28} Similarly, because assumptions, such as the age of retirement, are
routinely used to calculate the present value of pension benefits, it does not make
them untrustworthy. See Donnelly v. Donnelly, 2d Dist. Greene No. 2002-CA-53,
2003-Ohio-1377, ¶ 53, citing Watkins v. Cleveland Clinic Found., 130 Ohio
App.3d 262, 271 (8th Dist.1998) and Catron v. Catron, 11th Dist. Trumbull No.
96-T-5609, 1997 WL 799507, *2 (Dec. 19, 1997). Scott offered no evidence to
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indicate that Kelley’s assumption that Scott would retire at age 55 was incorrect.
See Catron at *6. In fact, the only testimony Scott offered about his retirement
plans was that it “[d]epend[ed] on the outcome of this case” and that he met with
STRS to discuss “what happened if [he] retired next year, two years, three years,
four years, or five years cause [sic] [he] has five years on [his] contract left.”
(Aug. 6, 2013 Tr. at 36, 212). Conversely, Scott provided no evidence that he
would continue working until age 65 or retire and defer his pension until age 65.
Thus, the trial court did not abuse its discretion in relying on Kelley’s assumption
that Scott will retire at age 55. Accordingly, we conclude the trial court did not
abuse its discretion in relying on Kelley’s valuation of Scott’s STRS pension
benefits.
{¶29} Therefore, Scott’s first assignment of error is overruled.
Assignment of Error No. II
The family court erred to the prejudice of defendant-appellant
and inequitably distributed property by failing to include credit
card debt incurred during the marriage.
{¶30} In his second assignment of error, Scott argues that the trial court
erred in its equitable distribution of assets by failing to include credit-card debt
incurred during the marriage. Specifically, Scott argues that credit-card debt
associated with his Discover, Citi Diamond, and Visa credit cards should have
been considered marital debt and distributed accordingly.
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{¶31} As noted above, the trial court must first determine whether property
is marital or separate property and then equitably distribute the marital and
separate property. Schalk, 2008-Ohio-829, at ¶ 6. Marital property includes
“property that currently is owned by either or both of the spouses * * * and
[property] that was acquired by either or both of the spouses during the marriage.”
R.C. 3105.171(A)(3)(a)(i). The property to be divided in a divorce proceeding
includes not only the assets owned by the parties but also any debts incurred by
the parties. Marrero v. Marrero, 9th Dist. Lorain No. 02CA008057, 2002-Ohio-
4862, ¶ 43. Because the statute does not specifically define marital debt, Ohio
courts, including this court, have said that marital debt is any debt incurred during
the marriage for the joint benefit of the parties or for a valid marital purpose. See,
e.g., Schwarck v. Schwarck, 3d Dist. Auglaize No. 2-11-24, 2012-Ohio-3902, ¶ 21,
citing Ketchum v. Ketchum, 7th Dist. No. 2001 CO 60, 2003-Ohio-2559, ¶ 47,
citing 1 Brett R. Turner, Equitable Distribution of Property, Section 6.29 at 455
(2d Ed.1994, Supp.2002). Similarly, because the statute does “‘not specifically
articulate debt as an element of marital and separate property, the rules concerning
marital assets are usually applied to marital and separate debt as well.’” Id.,
quoting Vonderhaar-Kerton v. Kerton, 5th Dist. Fairfield No. 10 CA 22,
2010-Ohio-6593, ¶ 34.
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{¶32} Property acquired during a marriage is presumed to be marital
property unless it can be shown to be separate. Barkley, 119 Ohio App. 3d at 160.
The party seeking to establish that a debt is separate rather than marital bears the
burden of proving, by a preponderance of the evidence, that it was not acquired for
the joint benefit of the parties or for a valid marital purpose. Lucas v. Lucas, 7th
Dist. Noble No. 11NO382, 2011-Ohio-6411, ¶ 33, citing Vergitz v. Vergitz, 7th
Dist. Jefferson No. 05JE52, 2007-Ohio-1395, ¶ 12 and Hurte v. Hurte, 164 Ohio
App.3d 446, 2005-Ohio-5967, ¶ 21 (4th Dist.).
{¶33} This court reviews a trial court’s classification of debt as marital or
separate debt under a manifest weight of the evidence standard. Schalk, 2008-
Ohio-829, at ¶ 6. Accordingly, we will not reverse the trial court’s judgment if the
decision is supported by some competent, credible evidence. Eggeman v.
Eggeman, 3d Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 14, citing DeWitt v.
DeWitt, 3d Dist. Marion No. 9-02-42, 2003-Ohio-851, ¶ 10 (“This highly
deferential standard of review permits the affirmation of the trial court’s judgment
if there is ‘even some evidence’ to support the court’s finding.”). In determining
whether competent, credible evidence exists, “[a] reviewing court should be
guided by a presumption that the findings of a trial court are correct, since the trial
judge is best able to view the witnesses and observe their demeanor, gestures, and
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voice inflections, and use those observations in weighing the credibility of the
testimony.” Barkley at 159, citing In re Jane Doe I, 57 Ohio St. 3d 135 (1991).
{¶34} As we noted above, trial courts generally award each spouse his or
her separate property and then distribute the martial property equally, unless an
equal distribution would be inequitable. Id. Trial courts have “broad discretion to
determine what property division is equitable in a divorce proceeding.” Cherry v.
Cherry, 66 Ohio St. 2d 348 (1981), paragraph two of the syllabus. A trial court’s
decision allocating marital property and debt will not be reversed absent an abuse
of discretion. Jackson v. Jackson, 3d Dist. Paulding No. 11-07-11, 2008-Ohio-
1482, ¶ 15, citing Stump v. Stump, 3d Dist. Logan No. 8-07-11, 2007-Ohio-6553, ¶
8 and Holcomb v. Holcomb, 44 Ohio St. 3d 128, 131 (1989). “The mere fact that a
property division is unequal, does not, standing alone, amount to an abuse of
discretion.” Cherry at paragraph two of the syllabus.
{¶35} A review of the record indicates that the trial court’s determination
that a portion of the debt disputed by Scott—namely, $10,500.00 to Prosper,
Inc.—was separate debt is supported by some competent, credible evidence.
Furthermore, we cannot conclude that the trial court abused its discretion in
allocating the Discover, Citi Diamond, and Visa credit-card debt to Scott. A
review of the record indicates that the trial court allocated the separate debt to
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Scott and considered the equitable interests of both parties in allocating the
remaining portion of the credit-card debt to Scott.
{¶36} The credit cards at issue—Discover, Citi Diamond, and Visa—were
obtained and maintained in Scott’s name only. (Aug. 6, 2013 Tr. at 34, 39, 175).
Scott had balances of $10,815.00 on his Citi Diamond card as of October 17,
2011, $4,209.22 on his Discover card as of November 16, 2011, and $2,452.32 on
his Visa card as of October 23, 2011. (See Doc. No. 63). Michelle testified that,
although she maintained credit cards in her name, she did not have any credit-card
debt in her name at the time of the separation. (Aug. 6, 2013 Tr. at 83). Scott
testified that all of the debts were incurred during the course of his marriage to
Michelle. (Id. at 236). Likewise, Michelle testified that she assumed Scott had
balances on his credit cards at the time they separated because he typically did not
pay off his credit cards each month as she did. (Id. at 175-176). Michelle further
testified that Scott was solely responsible for paying his credit-card bills. (Id. at
174-175).
{¶37} Scott testified that he purchased a debt-consolidation and
business-venture-counseling program from Prosper, Inc. for $10,500.00 just prior
to the time that he and Michelle separated without Michelle’s knowledge or
consent. (Aug. 6, 2013 Tr. at 35-36). Scott testified that he initially charged the
program to his Discover credit card, but later transferred the debt to his Citi
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Diamond card to lower his interest rate. (Id. at 34-35, 39-40). Scott testified that
he transferred the debt from the Discover card to the Citi Diamond card because
he “was trying to make it so [he] could be free of any outstanding bills except for
the mortgage because Michelle and [he] had always talked about buying a motor
home when [they] got older and travel around to all the baseball stadiums in the
country and [he] was gonna [sic] try to make – [he] was trying to make it so [he]
could be financially well enough to help buy that motor home when [they] got
ready to do that.” (Id. at 233). Scott further testified that he purchased the
Prosper, Inc. program for the benefit of the marriage because he thought that he
and Michelle were going to work things out. (Id. at 234). He stated, “Even after
she left, we agreed to see each other twice a week. There was a lot of – there was
a lot of communication between the two of us.” (Id.).
{¶38} Michelle requested that the debt to Prosper, Inc. be considered
separate debt. (Id. at 85). To establish that the debt should be considered separate
debt, Michelle testified that Scott did not tell her about the Prosper, Inc. program,
and she did not receive any benefit from it. (Id. at 84-85). Michelle testified that
the Prosper, Inc. program was purchased approximately two months before she
and Scott separated. (Id. at 85). She further testified that their marriage was
having significant difficulty at the time and that Scott did not discuss the purchase
from Prosper, Inc. with her because they engaged in very little communication.
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(Id. at 85-86). Moreover, Michelle bolstered her testimony that she did not derive
any benefit from the debt-education program because the only debt she had at the
time was her car loan; therefore, she stated, “[W]hy would I buy a program for ten
thousand dollars to tell me how to get out of debt when I only had those like six
thousand dollars worth of debt[?]” (Id. at 177). As a result, Michelle requested
the trial court find the Prosper, Inc. debt to be separate debt and allocate it
accordingly. (Id. at 176).
{¶39} Further, Scott provided incomplete and conflicting testimony
regarding the remaining debt that he claimed. Scott testified that he borrowed
$5,000 from a friend and $5,000 from his mother to pay off his car loan and his
Discover card. (Id. at 38, 43-44, 234).8 Specifically, Scott testified that he
borrowed money from either his mother or a friend to pay off the remaining
balance on his Discover card, which was $4,209.22 at the time he and Michelle
separated. (Id. at 38, 44, 234). Initially, Scott testified that he borrowed money
from his mother to pay off his Discover card. (Id. at 38). Shortly thereafter, Scott
testified that he borrowed money from a friend to pay off his car, but then stated
that the money he borrowed from a friend to pay off his car could be considered to
have been used to pay off the Discover card. (Id. at 43-44). Later, Scott testified
that he borrowed money from a friend to pay off his Discover card and borrowed
8
The record reflects that Scott and Michelle stipulated that each party would retain their respective vehicle
free and clear of any claim from the other and be responsible for any debt owed on the respective vehicle.
(Doc. No. 46).
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money from his mother to pay off his car. (Id. at 234, 238). Moreover, Scott
testified that he did not present proof of the money he claims he borrowed to pay
off any of his debts. (Id. at 256). Similarly, Michelle testified that any money that
Scott borrowed was after she and Scott separated. (Id. at 88).
{¶40} When asked what the $4,209.22 on his Discover card was used to
purchase, Scott responded that some of the funds were used to purchase the
Prosper, Inc. program and other miscellaneous items. (Id. at 235). Scott provided
this testimony after he testified that he transferred the Prosper, Inc. program
purchase to his Citi Diamond card. (Id. at 34-35). Scott further stated that some
of the miscellaneous items he purchased included college books for his daughter.
(Id. at 235). Similarly, Scott testified that his Visa card had a balance of
$2,458.32, which was attributed to miscellaneous purchases. (Id. at 235-236).
There is no evidence in the record indicating what the underlying purchases
included that resulted in the debt claimed by Scott.
{¶41} The trial court ordered “that each party shall pay their individual
debts and shall hold the other party harmless thereon.” (Oct. 28, 2013 JE, Doc.
No. 77). Specifically, the trial court concluded that Scott’s purchase of
$10,500.00 from Prosper, Inc. was for Scott’s own benefit and not for the benefit
of the marriage. (Id. at 5). Second, the trial court concluded that Scott did not
provide supporting documentation as to what funds were used to pay off the
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$4,209.22 on his Discover card and that the trial court found Michelle’s
explanation more credible. (Id.). Third, the trial court concluded that the
September 22, 2011 Visa credit-card statement did not reflect a current balance or
further transactions. (Id. at 6). The trial court further noted that, as stipulated by
the parties, each party was responsible for the debt associated with his or her
respective vehicle. (Id.). The trial court concluded that, because Michelle was not
awarded any benefit from any contribution that she paid towards the reduction in
Scott’s mortgage on their marital house, Scott was responsible for any debt
associated with his Discover, Citi Diamond, and Visa credit cards. (Id.).
{¶42} There was competent, credible evidence supporting the trial court’s
conclusion that Michelle satisfied her burden of establishing that the $10,500.00
debt incurred from Prosper, Inc. was not incurred for the joint benefit of the parties
or for a valid marital purpose and, thus, separate debt. Michelle testified that she
had no knowledge of the program, that she did not benefit from it in any way, and
that it was purchased during the point in the marriage when she engaged in very
little communication with Scott. Likewise, Scott testified that he purchased the
program without Michelle’s knowledge or consent. As the trial court is in the best
position to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use those observations in weighing the credibility of the
testimony, we hold that the trial court’s conclusion that the $10,500.00 debt was
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separate property is supported by some competent, credible evidence. See
Barkley, 119 Ohio App. 3d at 159. Furthermore, we conclude that the trial court
did not abuse its discretion in allocating the $10,500.00 debt to Scott. See R.C.
3105.171(D).
{¶43} Moreover, the trial court did not abuse its discretion in allocating the
remaining credit card debt to Scott. It appears as though the trial court considered
the remaining credit card debt to be marital debt as the trial court considered the
equitable interests of the parties in allocating the debt. (Oct. 28, 2013 JE, Doc.
No. 77). Michelle requested that she be awarded half the reduction in Scott’s
mortgage, which amounted to a credit of $3,905.50. (Aug. 6, 2013 Tr. at 75);
(Doc. No. 70). The trial court did not award Michelle any credit for the reduction
in principal of Scott’s mortgage. (Oct. 28, 2013 JE, Doc. No. 77). Noting that it
did not award Michelle any credit for the reduction in Scott’s mortgage and that
each party was responsible for the debt associated with their respective vehicle,
the trial court concluded that it was equitable to allocate the remaining portion of
the credit-card debt to Scott. (Id.). The equitable division of assets does not
necessarily mean equal. Vian v. Vian, 3d Dist. Mercer No. 10-13-05,
2013-Ohio-4560, ¶ 25, citing Kaechele v. Kaechele, 35 Ohio St. 3d 93, 95 (1988).
See also Hoffman v. Hoffman, 10th Dist. Franklin No. 94APF01-48, 1994 WL
424998, *4 (Aug. 11, 1994). (The equitable distribution of assets does not require
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a dollar-for-dollar setoff.). In addition, Scott did not provide any proof of what the
remaining amounts on the credit cards were attributed to other than stating
miscellaneous items, including, but not limited to, school books for his daughter.
Furthermore, Scott provided conflicting testimony regarding the money that he
purportedly borrowed to pay off his Discover card and his car loan after he and
Michelle separated. Therefore, we conclude that the trial court did not abuse its
discretion in allocating the remaining portion of the credit card debt to Scott.
{¶44} As a result, Scott’s second assignment of error is overruled.
Assignment of Error No. III
The family court erred to the prejudice of defendant-appellant
by finding him in contempt for attempted contact with the
plaintiff-appellee.
Assignment of Error No. V
The family court erred to the prejudice of defendant-appellant
by finding him in contempt with respect to the Verizon bill and
assessing attorney fees and costs against him.
{¶45} In his third and fifth assignments of error, Scott argues that the trial
court erred in finding him in contempt of court for his attempted contact with
Michelle and for failing to abide by the March 4, 2013 stipulation as it pertained to
Michelle’s Verizon account. Specifically, Scott argues that the trial court did not
support with competent, credible evidence its finding, that Scott willfully violated
the May 11, 2012 mutual restraining order. Also, Scott argues that, because
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stipulations are binding only on the parties, stipulations do not constitute a court
order and cannot form the basis for a finding of contempt. As such, Scott argues
that there was no competent, credible evidence that he willfully disobeyed the trial
court’s order because the trial court’s April 26, 2013 judgment entry did not
specifically impose the April 30, 2013 deadline.
{¶46} A trial court has inherent authority to enforce its prior orders through
contempt. Dozer v. Dozer, 88 Ohio App. 3d 296, 302 (4th Dist.1993). See also
R.C. 2705.02(A). “A finding of civil contempt requires clear and convincing
evidence that the alleged contemnor has failed to comply with the court’s prior
orders.” Moraine v. Steger Motors, Inc., 111 Ohio App. 3d 265, 268 (2d
Dist.1996), citing ConTex, Inc. v. Consol. Technologies, Inc., 40 Ohio App. 3d 94,
95 (1st Dist.1988). “‘Clear and convincing evidence’ has been defined as ‘that
measure or degree of proof which is more 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.’” Ohio State Bar
Assn. v. Reid, 85 Ohio St. 3d 327, 331 (1999), quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus. “It is not necessary to show
willful disobedience for a finding of contempt in cases where it is alleged that a
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court order was violated.” Kaufman v. Kaufman, 3d Dist. Auglaize No. 2-05-24,
2006-Ohio-603, ¶ 15.
{¶47} This court will not reverse a finding of contempt absent an abuse of
discretion by the trial court. State ex rel. Ventrone v. Birkel, 65 Ohio St. 2d 10, 11
(1981); Dozer at 302. Similarly, an appellate court reviews the punishment
imposed for contempt under an abuse-of-discretion standard. Wilson v. Jones, 3d
Dist. Seneca No. 13-13-06, 2013-Ohio-4368, ¶ 32, citing Whitman v. Whitman, 3d
Dist. Hancock No. 5-11-20, 2012-Ohio-405, ¶ 52.
{¶48} “Factual findings underpinning the trial court’s contempt judgment
will not be reversed if they are supported by some competent, credible evidence.”
Wilson, at ¶ 12, citing Sec. Pacific Natl. Bank. v. Roulette, 24 Ohio St. 3d 17, 20
(1986) and Kerchenfaut v. Kerchenfaut, 3d Dist. Allen No. 1-03-49, 2004-Ohio-
810, ¶ 13. “The trial court is in the best position to judge the credibility of
testimony because it is in the best position to observe the witness’ gestures and
voice inflections.” Id., citing Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80
(1984) and Johnson v. Johnson, 71 Ohio App. 3d 713, 718 (11th Dist.1991).
{¶49} We agree with Michelle that the trial court did not abuse its
discretion in finding Scott in contempt of court for violating the mutual restraining
order. The trial court issued a mutual restraining order on May 11, 2012. (Doc.
No. 1). The mutual restraining order states, in relevant part:
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Pursuant to Local Court Rule 13, it is ORDERED that effective on
the date a complaint is filed each spouse is enjoined from
committing any of the following acts:
***
2. Causing physical abuse, annoying, inflicting bodily injury,
attempting to cause or recklessly cause bodily injury, threatening the
use of force or imminent physical harm, stalking, harassing,
interfering with or imposing any restraint of the personal liberty of
the other spouse, committing any act with respect to a child in
violation of the Revised Code of Ohio * * *.
(Emphasis added.) (Doc. No. 1).
{¶50} Scott first attempted to contact Michelle by showing up at her place
of employment on December 12, 2012. (Aug. 6, 2013 Tr. at 49). Michelle
testified that Scott called her regular work unit and, after being informed by a
coworker that she was not at work that day, Scott showed up at another unit at
which Michelle worked. (Id. at 49-50, 94, 189-190, 245). Michelle testified that,
after Scott appeared at the second unit at which Michelle worked, the secretary
contacted her to tell her that Scott appeared. (Id. at 190). Scott testified that he
spoke with Michelle’s coworkers about Michelle and brought a “package of stuff
and a letter for her.” (Id. at 50). Scott also attempted to contact Michelle by
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showing up at the private residence of a friend of Michelle to inquire about
Michelle. (Id. at 50, 94, 190-191, 246).
{¶51} As a result of Scott’s actions, Michelle filed a motion requesting the
trial court find Scott in contempt of the court’s mutual restraining order. (Doc.
No. 39). The trial court concluded that even though Scott was aware that Michelle
did not want to reconcile, he appeared, despite the terms of the mutual restraining
order, at Michelle’s place of employment and a friend’s house looking for her, and
appeared at Michelle’s new residence. (Oct. 28, 2013 JE, Doc. No. 77). As a
result of its finding, the trial court awarded Michelle $500.00 in attorney fees. (Id.
at 11). The trial court noted that Michelle testified that these events “upset and
distressed her.” (Id.).
{¶52} While Scott admits that he attempted to contact Michelle, he argues
that he was trying to contact Michelle in an attempt to settle the case, and he
argues that no competent, credible evidence supports the trial court’s finding that
he willfully disobeyed the trial court’s order. (Aug. 6, 2013 Tr. at 49-50, 245-
248).
{¶53} Here, it is unnecessary to show that Scott willfully disobeyed the trial
court’s order as Scott contends. Indeed, a review of the record indicates that
competent, credible evidence was presented to clearly and convincingly establish
that Scott violated the mutual restraining order by annoying and harassing
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Michelle. Scott admitted that he appeared at Michelle’s place of employment, the
private residence of a friend of Michelle, and Michelle’s parents’ house, which
was also Michelle’s residence for a period of time. (Aug. 6, 2013 Tr. at 49-50, 92,
245-248). Scott further admitted that he was familiar with the mutual restraining
order and was aware that Michelle did not want to reconcile. (Id. at 49). Michelle
testified that Scott’s actions that led to her filing the contempt motion were not
isolated incidents and that there were other incidents, including Scott “show[ing]
up at [her] house, Ashley Drive, knocking on windows, doors.” (Id. at 95-96).
Regarding Scott showing up at her place of employment, Michelle stated, “I’ve
worked there for 25 years and I don’t expect my outside personal life to be
brought into work like that.” (Id. at 96). Michelle testified that Scott’s actions
underpinning the contempt motion upset and bothered her. (Id.).
{¶54} “[I]t is important to note that [because] we review a contempt finding
under an abuse of discretion standard[, t]his deferential standard is even more
warranted in the context of contempt findings arising out of domestic relation
proceedings.” Johnson v. Johnson, 3d Dist. Hancock No. 5-07-34, 2008-Ohio-
514, ¶ 31. As a result, we are unwilling to conclude that the trial court abused its
discretion in finding Scott in contempt of court for violating the mutual restraining
order.
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{¶55} Next, we agree with Michelle that the trial court did not abuse its
discretion in finding Scott in contempt of court and assessing attorney fees for
violating its order with respect to Michelle’s Verizon account. Michelle and Scott
stipulated, among other things, that “[Michelle] agrees to release [Scott]’s cell
pho[ne] no. [sic] so that he may transfer it to his own cell pho[ne] account by
April 30, 2013. Both will cooperate in the transfer & [sic] release of cell pho[ne]
no. [sic].” (Doc. No. 46). Because of Michelle’s concerns about the enforcement
of the stipulations, Michelle requested the trial court adopt the stipulations in an
order. (Apr. 26, 2013 JE, Doc. No. 50). The trial court ordered, in relevant part:
“[Scott] shall take all steps necessary to have his name and his daughter’s name
removed from the cell phone account(s) listed in [Michelle]’s name held through
Verizon/Frontier Communications.” (Id.). The trial court did not specify a
deadline of April 30, 2013. (Id.).
{¶56} Michelle testified that the Verizon account was in her name and that
she maintained a total of six lines on the account, including Scott and his
daughter’s. Scott testified that he entered into a stipulation with Michelle to
remove his and his daughter’s phone lines from Michelle’s Verizon account.
(Aug. 6, 2013 Tr. at 51). In fact, Scott testified that he that requested to be given
until April 30, 2013 to have the phone lines transferred. (Id. at 266). Scott
testified that Michelle provided him the information Verizon required to transfer
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his and his daughter’s phone lines and that he initially called Verizon on April 29,
2013 because he knew he had to complete the transfer by April 30, 2013. (Id. at
243, 266). However, he stated that he intentionally did not transfer the lines by
April 30, 2013 because Verizon informed him that he would incur a fee if he did
so before the anniversary date of the account. (Id. at 265, 266). Because Scott did
not transfer the phone lines by April 30, 2013, Michelle filed a contempt motion
on May 17, 2013. (Id. at 98); (Doc. No. 52).
{¶57} Michelle testified that, after she filed the contempt motion, Scott
eventually transferred his phone line but did not transfer his daughter’s phone line.
(Aug. 6, 2013 Tr. at 98-99). As a result, Michelle continued to pay for Scott’s
daughter’s phone line and eventually incurred a $60.00 fee to have the line
disconnected. (Id. at 98, 197). Scott concedes that Michelle should be awarded
the $60.00 fee. (Appellant’s Reply Brief at 9).
{¶58} The trial court concluded that Scott did not comply with the parties’
stipulation regarding the transfer of the Verizon Account by April 30, 2013 until
June 2013, which resulted in a cost of $60.00 to Michelle. (Oct. 28, 2013 JE, Doc.
No. 77). As a result of its finding, the trial court awarded Michelle $500.00 in
attorney fees. (Id. at 8, 11). Scott argues that the trial court abused its discretion
by finding him in contempt for failing to comply with a stipulation. Scott also
argues that the trial court abused its discretion by finding him in contempt because
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he complied with the trial court’s order, and because the trial court’s order did not
impose the April 30, 2013 deadline.
{¶59} Here, again, it is unnecessary to establish that Scott willfully
disobeyed the trial court’s order. A review of the record indicates that competent,
credible evidence was presented to clearly and convincingly establish that Scott
violated the trial court’s April 26, 2013 order. The fact that the trial court noted
Scott failed to abide by the parties’ stipulations as opposed to its April 26, 2013
order is, at most, harmless error because it would not have changed the outcome of
the proceedings. See Fada v. Information Sys. & Networks Corp., 98 Ohio.
App.3d 785, 792 (2d. Dist.1994) (errors are not prejudicial where their avoidance
would not have changed the result of the proceedings) and Civ.R. 61. The trial
court’s order regarding Michelle’s Verizon account did not include the April 30,
2013 deadline; however, the trial court ordered Scott to “take all steps necessary”
to transfer the Verizon account. (Apr. 26, 2013 JE, Doc. No. 50). It is within the
trial court’s discretion to determine what steps were necessary for Scott to transfer
the Verizon account. See Kerchenfaut, at ¶ 8, quoting State ex rel. Bitter v.
Missig, 72 Ohio St. 3d 249, 252 (1995) (“[T]he court that issued the order sought
to be enforced is in the best position to determine if that order has been
disobeyed.”).
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{¶60} The evidence shows that Scott was aware of the April 30, 2013
deadline established by the parties and that he chose not to comply with it because
he thought he might incur a financial detriment and because he thought Michelle
should continue to pay for his cell phone since he was paying for her health
insurance. (Aug. 6, 2013 Tr. at 54-55, 266). Neither the parties’ stipulation nor
the April 26, 2013 judgment entry conditions execution of the stipulation or the
order on whether either party will suffer a financial detriment. Likewise, even
though Scott testified that he told his attorney that he was not going to comply
with the April 30, 2013 deadline because Verizon would charge him a fee to
transfer the phone lines prior to the anniversary date, no such notice was provided
to the court. (Id. at 266). Accordingly, as the trial court is in the best position to
judge whether Scott complied with its order, we cannot conclude that the trial
court abused its discretion in finding Scott in contempt of the trial court’s order
and assessing attorney fees pertaining to Michelle’s Verizon account. See
Kerchenfaut at ¶ 8. Therefore, it was not an abuse of discretion for the trial court
to hold Scott to the April 30, 2013 deadline in light of the parties’ stipulation and
its order requiring Scott to take all steps necessary to have his and his daughter’s
phone lines removed from Michelle’s Verizon account.
{¶61} For all of these reasons, Scott’s third and fifth assignments of error
are overruled.
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Assignment of Error No. IV
The family court erred to the prejudice of defendant-appellant
by failing to sanction plaintiff-appellee for contempt and failing
to award him attorney fees associated with his motion.
{¶62} In his fourth assignment of error, Scott argues that the trial court
erred in failing to sanction Michelle and award him attorney fees after finding
Michelle in contempt. Specifically, Scott argues that, in its October 28, 2013
judgment entry, the trial court found Michelle in contempt of court for disposing
of property—a dog—in violation of the May 11, 2012 restraining order, but failed
to sanction Michelle and award Scott attorney fees.
{¶63} As noted above, we review a trial court’s finding of contempt for an
abuse of discretion. Birkel, 65 Ohio St. 2d 10 at 11; Dozer, 88 Ohio App. 3d at 302.
A trial court errs as a matter of law and abuses its discretion when it finds a party
in contempt, but fails to assess sanctions. Cichanowicz v. Cichanowicz, 3d Dist.
Crawford No. 3-13-05, 2013-Ohio-5657, ¶ 100.
{¶64} The May 11, 2012 mutual restraining order issued by the trial court,
referenced in part above, additionally provided, in relevant part:
Pursuant to Local Court Rule 13, it is ORDERED that effective on
the date a complaint is filed each spouse is enjoined from
committing any of the following acts:
***
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4. Selling, removing, transferring, encumbering, pledging,
hypothecating, damaging, hiding, concealing, assigning or disposing
of any and all property, real or personal, owned by both or either
spouse or a child (including household goods, vehicles, financial
accounts, and the personal property of each) without the prior
written consent of the spouse or the Court. Excluded is any account
now used for the payment of living costs * * *.
(Doc. No. 1).
{¶65} The parties testified that two dogs were at issue in this case—Mickey
and Cain.9 (Aug. 6, 2013 Tr. at 45, 89). Michelle testified that Mickey was a gift
from Scott for her birthday in November 2006. (Id. at 89). Further, Michelle
testified that the couple adopted Cain from a rescue group two to three years later.
(Id. at 90). Michelle took both Mickey and Cain in November 2011 when the
couple separated. (Id. at 46). However, Scott testified that he asked Michelle to
leave one dog when she moved out of the house and to switch the dogs back and
forth every week. (Id. at 47). Scott further testified that he wanted either Mickey
or Cain. (Id. at 48).10
9
Scott had two additional dogs that he kept outside of his house—Stroker and Bullet. One was acquired
prior to the marriage and one during the marriage. Neither dog is at issue in this case. (Aug. 6, 2013 Tr. at
47-48).
10
In his trial brief, Scott requested that he be awarded Mickey and Michelle be awarded Cain. (Doc. No.
63).
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{¶66} Michelle testified that Cain eventually became destructive because
she worked long hours and was not able to provide Cain with the proper care and
attention he required. (Id. at 93). As such, Michelle testified that, in the Spring of
2013, she found a better home for Cain with “a friend at work * * * [w]ho is home
more and can take better care of him.” (Id.). Michelle testified that she did not
communicate with Scott that she needed to rehome Cain. (Id. at 179). Michelle
testified that she did not communicate with Scott regarding her intention to
rehome Cain because Scott never showed any interest in Cain, only Mickey, and
that she was afraid to contact Scott regarding any matter because of his past
behaviors. (Sept. 30, 2013 Tr. at 8, 11). There is no evidence in the record that
Michelle obtained Scott’s or the trial court’s consent to rehome Cain.
{¶67} The trial court found Scott’s motion requesting that Michelle be
found in contempt for disposing of personal property “to be well taken.” (Oct. 28,
2013 JE, Doc. No. 77). The trial court noted that Michelle knew that the
“ownership and possession of the parties’ two dogs” was in dispute, yet Michelle
gave one of the dogs to a third party. (Id.). Furthermore, the trial court awarded
Scott one of the dogs—Cain. (Id. at 9).
{¶68} However, it is unclear if the trial court found Michelle in contempt of
court for disposing of Cain without Scott’s or the trial court’s consent. The trial
court stated that it found Scott’s contempt motion “well taken,” but did not
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specifically state that it found Michelle in contempt for violating the mutual
restraining order or assess any sanction relative to Scott’s contempt motion. In its
discussion of attorney fees, the trial court was silent as to whether Scott was
awarded attorney fees associated with his August 12, 2013 contempt motion. (See
id. at 7-8). Moreover, the trial court indicated that Scott’s “Motion for Contempt
is denied” and that “all other motions not addressed herein are dismissed” in the
section of its judgment entry indicating its orders. (Id. at 11-12). In denying
Scott’s “Motion for Contempt” and dismissing “all other motions not addressed
herein,” it is unclear which of Scott’s contempt motions the trial court denied, if
the trial court dismissed Scott’s August 12, 2013 contempt motion, or if the trial
court found Michelle in contempt and failed to sanction her. See Cichanowicz,
2013-Ohio-5657, at ¶ 88 (contempt of court consists of two elements—a finding
of contempt of court and the imposition of a penalty or sanction), citing Frey v.
Frey, 197 Ohio App. 3d 273, 2011-Ohio-6012, ¶ 17 (3d Dist.) and Cooper v.
Cooper, 14 Ohio App. 3d 327, 328-329 (8th Dist.1984).
{¶69} Accordingly, we sustain Scott’s fourth assignment of error as the trial
court’s judgment regarding Scott’s August 12, 2013 contempt motion is unclear.
To be a valid order of contempt of court, the trial court must find Michelle in
contempt of court for disposing of Cain and sanction her accordingly. Or, the trial
court must deny or dismiss Scott’s contempt motion.
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Case No. 9-13-67
{¶70} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in assignments of error one, two, three, and five,
we affirm the judgment of the trial court. Having found error prejudicial to the
appellant herein in the particulars assigned and argued in assignment of error four,
we reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW and ROGERS, J.J., concur.
/jlr
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