Joseph v. Joseph

[Cite as Joseph v. Joseph, 2020-Ohio-412.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
WILLIAM JOSEPH C.A. No. 19CA0O48-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TERESA JOSEPH COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 07 DR 0463
DECISION AND JOURNAL ENTRY
Dated: February 10, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellant, Teresa Joseph, appeals an order of the Medina County Court of
Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in part.
I.
{¶2} Teresa and William Joseph (“Wife” and “Husband,” respectively) divorced in
2008. At the time of the divorce, they had one minor child nearing emancipation. The parties
reached an agreement regarding all of the terms of their divorce, and those terms were
incorporated into the divorce decree. The terms of the decree required Husband to pay spousal
support to Wife in the amount of $1,000 per month until their minor child emancipated, at which
time the spousal support obligation was to increase to $1,487.50 per month. The duration of
Husband’s spousal support obligation was 108 months.
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{¶3} Another provision of the agreement stated that Ms. Joseph and the parties’ son
would live in the marital residence until October 2009. At that point, the decree provided that
the home “shall be listed for sale” and the proceeds divided as follows:
the net sales proceeds (ie. after payment of the mortgage and usual and customary
costs of sale) to be divided into two equal shares, with one share to be distributed
to [Husband] and one share to be distributed to [Wife]. From [Husband’s] share,
he shall distribute to [Wife] the sum of $11,000. Neither Party shall act in a way
to create further indebtedness upon the marital home. Until the real property is
sold, [Husband] shall pay the monthly mortgage and real property taxes, while
[Wife] shall pay the homeowner’s insurance and utilities. The Court shall retain
jurisdiction on this matter to assist in the sale of the real property, but not as to the
distribution of proceeds.
Wife did not move out of the house in 2009. She attempted to sell the residence without
engaging a realtor, but to no avail. It is unclear from the record what the extent of her efforts to
sell the home may have been and at what point her efforts to do so ceased.
{¶4} Husband stopped paying spousal support in 2009. He continued to pay the
mortgage and real estate taxes for approximately eighteen months after the October 2009 date
referenced in the decree, then stopped making those payments. In 2010, Husband unilaterally
withdrew the balance from his State Teachers Retirement System (“STRS”) pension account.
The trial court subsequently ordered him to transfer $98,000 to Wife, representing her share of
the marital portion of the account value.
{¶5} In 2012, the marital residence went into foreclosure, and Wife initiated
bankruptcy proceedings to prevent the house from being sold at a sheriff’s sale. When she could
not make payments after her bankruptcy, the foreclosure progressed to a sheriff’s sale. A third
party purchased the residence, but Wife redeemed the property using her portion of the funds that
Husband had prematurely withdrawn from his STRS account.
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{¶6} In 2017, Wife filed a motion requesting the trial court to hold Husband in
contempt for failure to pay spousal support, failure to pay the mortgage on the marital residence
after April 2011, breach of his obligation to refrain from incurring additional debt against the
marital residence, and failure to divide a tax refund from tax year 2007. She also moved the trial
court to reinstate Husband’s spousal support obligation; require Husband to demonstrate that he
had maintained her as the beneficiary of a life insurance policy, as required by the divorce
decree; and order Husband to pay her attorney’s fees and costs. Husband moved to modify the
support obligation retroactive to a motion filed in 2012.
{¶7} The trial court referred the motions to a magistrate. Following a hearing, the
magistrate granted Husband’s motion to modify spousal support based on stipulations by the
parties and ordered Husband to pay $1,172.92 per month toward the significant arrearage that
had accumulated. The magistrate concluded that Husband should be found in contempt for
failure to pay spousal support and for incurring additional indebtedness on the marital residence,
but that he should not be found in contempt on the other grounds argued by Wife. The
magistrate also concluded that Husband should pay $500 in attorney’s fees and $150 in costs.
The trial court entered judgment on the same date pursuant to Civ.R. 53(D)(4)(e)(i). Husband
and Wife both filed objections.
{¶8} On May 31, 2019, the trial court overruled all of the parties’ objections and noted
that it adhered to its prior judgment. With respect to the motion to show cause for contempt for
Husband’s failure to pay the mortgage, however, the May 31, 2019, order differed in one respect:
in addition to concluding that Husband was not in contempt on that basis, the trial court
addressed the parties’ respective equity in the marital residence post-redemption.
{¶9} Wife appealed, asserting two assignments of error.
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II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY STATING IN ITS MAY 31, 2019
JUDGMENT ENTRY THAT IT UPHELD THE MAGISTRATE’S DECISION
OF SEPTEMBER 11, 2018 WHEN, IN FACT, IT MODIFIED THAT
DECISION IN A MANNER NOT CONTEMPLATED BY THE OBJECTION
OF EITHER PARTY.
{¶10} In her first assignment of error, Wife argues that the trial court erred by modifying
the magistrate’s decision with regard to a matter not raised by the parties’ objections or, in the
alternative, that the trial court denied her right to due process by deciding a matter that was not
argued by the parties. This Court agrees in part.
{¶11} Civ.R. 53(D)(4)(b) provides that “[w]hether or not objections are timely filed, a
court may adopt or reject a magistrate’s decision in whole or in part, with or without
modification.” Compare Civ.R. 53(D)(4)(d) (requiring an independent review when objections
are filed). This Court has previously noted that “[b]y its plain terms, * * * Civ.R. 53 does not
limit a trial court’s ability to enter a judgment that differs from the magistrate’s decision upon
conducting an independent review.” Brown v. Allala, 9th Dist. Summit No. 27086, 2014-Ohio-
4917, ¶ 28, citing Peskind v. Peskind, 8th Dist. Cuyahoga No. 94740, 2010–Ohio–5146, ¶ 16. In
other words, “Civ.R. 53(D)(4) expressly gives the trial court the flexibility” to modify the terms
of a magistrate’s decision in the course of its independent review of the matter. Brown at ¶ 29.
The 2006 Staff Notes to Civ.R. 53(D)(4)(b) are also instructive:
Civ.R. 53(D)(4)(b) provides that a court may properly choose among a wide range
of options in response to a magistrate’s decision, whether or not objections are
timely filed. See, e.g., Johnson v. Brown[,] 2nd Dist. [Clark] No. 2002 CA 76,
2003-Ohio-1257[,] at ¶ 12 (apparently concluding that former Civ.R. 53(E)(4)(b)
permitted the trial court to modify an aspect of the magistrate’s decision to which
no objection had been made).
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Wife has argued that because neither party’s objections addressed sale of the marital residence at
the present time and the corresponding allocation of the equity that now exists, it was error for
the trial court to modify the magistrate’s decision for that reason alone. Civ.R. 53(D)(4)(b),
however, does not constrain a trial court’s action with respect to a magistrate’s decision that
narrowly. Wife’s argument in this regard is not well-taken.
{¶12} Wife has also argued that the trial court erred by addressing the division of
parties’ respective equity in the marital residence in contemplation of a sale at this time because
that issue was not the subject of a motion from either party, evidence was not taken on the issue,
and the parties had no notice and opportunity to be heard. This Court agrees.
{¶13} The fundamental requirement of due process is the opportunity to be heard. Ohio
Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St. 3d 118, 124 (1986),
quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914). Central to the opportunity to be heard
“‘is notice reasonably calculated, under all the circumstances, to apprise interested parties of the
pendence of the action and afford them an opportunity to present their objections.’” Capital
One, N.A. v. Sikora, 9th Dist Lorain No. 16CA011032, 2017-Ohio-4347, ¶ 5, quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). With respect to civil cases, this
Court has observed:
The Ohio Constitution also explicitly guarantees due process. Section 16, Article
1 of the Ohio Constitution states “[a]ll courts shall be open, and every person, for
an injury done him in his land, goods, person, or reputation shall have remedy by
due course of law, and shall have justice administered without denial or delay.”
“[This clause] undeniably affords the parties in a civil case the right to due
process of law, the ‘basic thrust’ of the clause being a requirement for notice and
an ‘opportunity to be heard.’”
(Alterations in original.) Sikora at ¶ 6, quoting Szerlip v. Szerlip, 5th Dist. Knox No. 01CA16,
2002-Ohio-2540, *5, citing Ohio Valley Radiology Assocs., Inc. at 124-125. The same
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considerations are at issue in postdecree divorce proceedings. See, e.g., Smith v. McLaughlin,
9th Dist. Summit No. 24890, 2010-Ohio-2739, ¶ 32-39.
{¶14} With respect to the marital home, Wife’s motion argued that the trial court should
hold Husband in contempt for failing to pay the mortgage and taxes from April 2011 to the date
of the motion. She argued that “[a]s a purge for this contempt, * * * that the Court require
[Husband] to pay back all of the mortgage payments that he failed to make, resulting in the
foreclosure as well as all amounts added to the amount [Wife] had to pay for the house because
of the foreclosure.” The magistrate concluded that Husband should not be held in contempt,
noting that Wife’s actions demonstrated her intent to remain in the home notwithstanding the
language of the divorce decree and stating that “[w]hile the Magistrate does not condone
[Husband’s] conduct, the purpose of civil contempt is not for punishment, but to secure
compliance with a previous court order.”
{¶15} Wife objected to the magistrate’s decision, arguing that the magistrate failed to
find Husband in contempt “[d]espite the uncontroverted evidence that [he] did not abide by [the
divorce decree].” She argued that she attempted to sell the house, but was unable to do so
because of a structural defect of which Husband was aware. Finally, Wife reiterated her position
that Husband should be found in contempt for failure to pay the mortgage and taxes and
explained her position regarding purge conditions. At no point did Wife address the present sale
of the home or the parties’ respective shares of the equity if that were to occur. Husband’s
objection did not address the contempt, the equity in the home, or the sale.
{¶16} The trial court overruled Wife’s objection to the magistrate’s decision with
respect to the contempt, then addressed the parties’ respective positions upon sale of the home at
that time:
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The problem, however, is that the Decree does not set forth a time for
performance for the parties to sell the home. From all indications, the parties
intended to sell the home a few months after [their son] graduated high school.
When this did not happen, Husband continued making payments on the mortgage
and the real estate taxes up to and through April 2011. Husband did not make any
payments after April 2011.
Years later, Wife redeemed the home after a foreclosure sale. * * * Wife paid
$64,800 to pay off the mortgage, and paid $35,000 to pay off the real estate taxes.
* * * Wife assumed, mistakenly, that when she redeemed the home, the home
would become hers, and that husband’s one-half interest would be extinguished
automatically. * * *
That was not the case. Just as Husband’s pay-down of the mortgage has caused
Wife’s one-half equitable interest in the home to increase, Wife’s pay-off of the
mortgage and the real estate taxes has caused Husband’s one-half equitable
interest in the home to increase.
***
Currently, Wife is entitled to the first $11,000 from the sale of the home, plus
one-half of the net proceeds of the sale. * * * If, as Wife has requested, the Court
were to order Husband to pay Wife an additional sum of money—e.g., the
$99,800 Wife paid to redeem the home—then Wife would receive much more
than she is otherwise entitled to under the terms of the Decree.
If, on the other hand, the Court were to order Husband to execute a quit claim
deed transferring his one-half interest in the home to Wife, then Wife would
automatically recoup $49,900 (or one-half of the $99,800 she paid to redeem the
home), plus the $11,000 set-off from the insurance payment, while still retaining
her one-half interest in the property. The problem with this, however, is that the
Court cannot order Husband to do this, as the Court has only limited jurisdiction
to assist in the sale of the real property.
That notwithstanding, due to the specific circumstances of this case and the
evidence presented, the Court finds that Wife shall have a separate property
equitable interest in the [marital home] in the sum of $49,900. Combined with the
pre-existing $11,000 separate property interest, when the home is sold, Wife shall
be entitled to keep the first $60,900, with the net proceeds divided equally
thereafter.
{¶17} Neither Wife’s motion nor her objections to the magistrate’s decision—or, indeed,
the magistrate’s decision itself—placed these issues before the trial court for decision. The
parties did not present evidence or argument directed toward these issues during the motion
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hearing. Under these circumstances, the trial court’s decisions regarding the parties’ respective
equity in the marital residence and a sale at the present time did not afford the parties the
fundamental guarantees of due process—notice and the opportunity to be heard. See Ohio Valley
Radiology Assocs., Inc., 28 Ohio St. 3d at 124-125; Sikora, 2017-Ohio-4347, at ¶ 5-6.
{¶18} Wife’s first assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN FAILING TO FIND [HUSBAND] IN
CONTEMPT OF COURT FOR HIS FAILURE TO PAY MORTGAGE
PAYMENTS AND TAXES ON THE FORMER MARITAL RESIDENCE AND
APPLYING AN APPROPRIATE PURGE CONDITION.
{¶19} In her second assignment of error, Wife argues that the trial court abused its
discretion by concluding that Husband was not in contempt for failing to pay the mortgage and
real estate taxes on the marital residence. This Court does not agree.
{¶20} “Contempt of court is defined as disobedience of an order of a court. It is conduct
which brings the administration of justice into disrespect, or which tends to embarrass, impede or
obstruct a court in the performance of its functions.” Windham Bank v. Tomaszczyk, 27 Ohio
St.2d 55 (1971), paragraph one of the syllabus. See also R.C. 2705.02. Indirect contempt
consists of conduct outside the presence of the court that “tends to obstruct the due and orderly
administration of justice.” In re Lands, Lots or Parts of Lots Omitted from Foreclosure
Proceedings—1944, 146 Ohio St. 589, 595 (1946). Proof of indirect contempt requires the
existence of a valid court order, knowledge of that order on the part of the alleged contemnor,
and a violation of the order. Citicasters Co. v. Stop 26-Riverbend, Inc., 147 Ohio App. 3d 531,
2002-Ohio-2286, ¶ 47 (7th Dist.), quoting Arthur Young & Co. v. Kelly, 68 Ohio App. 3d 287,
295 (10th Dist.1990). See also 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.
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{¶21} This Court reviews a trial court’s determination of contempt for an abuse of
discretion. Morrow v. Becker, 9th Dist. Medina No. 11CA0066-M, 2012-Ohio-3875, ¶ 47. An
abuse of discretion is 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.
{¶22} The parties’ divorce decree was a valid court order, and the parties do not dispute
that Mr. Joseph was aware of that order. Under the circumstances of this case, however, the trial
court did not abuse its discretion by concluding that Wife had not proved a violation of the
decree. The decree required Husband to pay the mortgage and real estate taxes on the marital
home “[u]ntil the real property is sold[.]” On the other hand, the decree contemplated that Wife
would move from the marital residence in October 2009, that the property would be listed for
sale, and that a sale would be completed in due course. As the trial court observed, the decree
did not set a timeframe for the completion of the parties’ obligations with respect to the marital
home. When each portion of the relevant paragraph is read in context, however, it appears that
the decree also did not contemplate that Wife would remain in the marital home and that
Husband would remain obligated to pay the mortgage and real estate taxes indefinitely. Given
the ambiguity of this language, we cannot conclude that the trial court abused its discretion by
determining that Husband was not in contempt.
{¶23} Wife’s second assignment of error is overruled.
III.
{¶24} Wife’s first assignment of error is sustained. Her second assignment of error is
overruled. The judgment of the Medina County Court of Common Pleas, Domestic Relations
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Division, is affirmed in part and reversed in part. This matter is remanded to the trial court for
proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
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 equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
HENSAL, J.
CONCUR.
APPEARANCES:
STEVE C. BAILEY, Attorney at Law, for Appellant.
WILLIAM JOSEPH, pro se, Appellee.