Mohr v. Mohr

[Cite as Mohr v. Mohr, 2017-Ohio-1044.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANITA C. MOHR : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 16AP0007
:
DAVID W. MOHR, JR. :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court
of Common Pleas, Domestic Relations
Division, Case No. 13 CV 0114
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 20, 2017
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
ADAM J. BAKER MILES D. FRIES
Eight North Court Street, Suite 212 320 Main Street
Athens, OH 45701-2450 P.O. Box 190
Zanesville, OH 43702-0190
Morgan County, Case No. 16AP0007 2
Delaney, P.J.
{¶1} Plaintiff-Appellant Anita C. Mohr appeals the June 14, 2016 judgment entry
of the Morgan County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Anita C. Mohr (“Wife”) and Defendant-Appellee David W.
Mohr, Jr. (“Husband”) were married on July 13, 1990. Wife filed a complaint for divorce
on March 19, 2013. The trial court held a final divorce hearing on May 19, 2014, but did
not journalize the Divorce Decree because Wife filed a grievance against the judge. The
judge recused himself and the matter was reassigned. A second final divorce hearing was
held on April 10, 2015. The Divorce Decree was issued on April 17, 2015.
{¶3} The April 17, 2015 Divorce Decree found the marital residence was marital
property. The trial court ordered the marital residence be sold at auction. During trial, Wife
introduced Exhibit 15, a three-page appraisal list of tangible personal property at the
residence. The Divorce Decree addressed the parties’ tangible personal property and
ordered that it also be auctioned with the marital residence. The Divorce Decree stated:
The auction will not include the parties’ clothing and personal effects. In
addition, the Court finds that some of the tangible personal property items
are separate property of the Defendant. The Court finds that the Plaintiff’s
separate property includes the following items which are awarded to her as
her separate property and are not to be included in the auction. Those items
are found on Plaintiff’s Exhibit “15”, a copy of which is attached hereto and
incorporated by reference: Number 4, 8, 10, 11, 17 – one (1) tractor, 22, 25,
and 47. The Court also finds that the following items found on Plaintiff’s
Morgan County, Case No. 16AP0007 3
Exhibit “15” are the Defendant’s separate property: 13, 17 – one (1) tractor,
40, 55 and on Page 3 of Exhibit “15”, items 1, 15, 22, 23, including the
rocking chair, Ohio State birdhouse, and wooden mushroom.
{¶4} Wife had exclusive occupancy of the marital residence during the divorce
proceeding. Husband met with the auctioneer at the marital residence on August 23, 2015
to determine whether there was enough personal property to conduct an auction. Wife
moved out of the marital residence on September 5, 2015. Husband met the auctioneer
at the marital residence after Wife moved out. While he was at the marital residence,
Husband observed multiple items of marital property missing from the residence. The
auctioneer determined there was not enough property to conduct an auction.
{¶5} Husband filed a motion for contempt on September 11, 2015. Husband
argued Wife removed marital property that was to be sold at auction. Her removal of the
property, which caused the auction to be cancelled, was in direct contravention of the
Divorce Decree. He further argued Wife damaged the marital residence, diminishing its
value.
{¶6} Wife filed a motion for contempt on September 24, 2015.
{¶7} The trial court held a hearing on both motions for contempt on May 26, 2016
and June 14, 2016. At the hearing, Husband introduced Exhibit B, which he testified was
a list of twenty-nine property items removed from the marital residence. Wife testified she
used Exhibit 15 as her guide when she removed her belongings from the marital
residence on September 5, 2015. Wife admitted she removed the items listed in Exhibit
B; however, the items she removed from the marital residence listed on Husband’s Exhibit
B were not listed in the Divorce Decree as Husband’s separate property.
Morgan County, Case No. 16AP0007 4
{¶8} At the conclusion of the hearing, the trial court stated, “I think I was very
specific in finding certain items of property that belong to [Wife], and certain items that
belong to [Husband]. Okay? Then there was the rest of the personal property. Okay? And
it was to be sold the same day that the real estate was sold. Okay? Now, certain of those
items have been removed by [Wife].” (Tr. 95).
{¶9} By judgment entry filed on June 14, 2016, the trial court found Wife in
contempt for her violation of the terms of the Divorce Decree. The trial court ordered that
all items listed in Exhibit B were to be returned by Wife to the marital residence within 30
days, at which time the real estate and personal property were to be sold. The trial court
did not impose sanctions on June 14, 2015. The trial court further stayed Wife’s motion
for contempt pending the auction of the real and personal property.
{¶10} It is from this judgment Wife now appeals.
ASSIGNMENT OF ERROR
{¶11} Wife raises one Assignment of Error:
{¶12} “THE TRIAL COURT’S FINDING OF CONTEMPT AND ORDER TO
AUCTION PERSONAL PROPERTY IS REVERSIBLE ERROR, UNREASONABLE AND
ARBITRARY, AND CONTRARY TO THE FACTS AND WEIGHT OF EVIDENCE SINCE
THE FINAL DIVORCE DECREE NEVER SPECIFIED TWENTY-FOUR (24) OF THE
TWENTY-NINE (29) ITEMS LISTED IN DEFENDANT’S CONTEMPT EXHIBIT (WHICH
BECAME THE EXHIBIT USED IN THE TRIAL COURT’S JUNE 14, 2016 JUDGMENT
ENTRY); OF THE 4 ITEMS THAT COINCIDED BETWEEN THE FINAL DIVORCE
DECREE AND DEFENDANT’S CONTEMPT EXHIBIT THREE (3) REMAIN AT THE
MARITAL RESIDENCE AND ONE (1) BELONGED TO THE FATHER OF
Morgan County, Case No. 16AP0007 5
PLAINTIFF/APPELLANT ACCORDING TO TESTIMONY HEARD AT THE CONTEMPT
HEARING.”
ANALYSIS
{¶13} Wife argues the trial court abused its discretion when it found her in
contempt for removing property from the marital residence. We disagree.
{¶14} A trial court's decision regarding contempt will not be reversed absent an
abuse of discretion. Gunawardena v. Gunawardena, 5th Dist. Delaware No. 14 CAF 06
0035, 2015-Ohio-2566, ¶ 31 citing Beltz v. Beltz, 5th Dist. Stark Nos. 2005CA00193,
2005CA00194, 2006-Ohio-1144. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140 (1983).
{¶15} “Civil contempt is defined as that which exists in failing to do something
ordered to be done by the court in a civil action for the benefit of the opposing party
therein.” McKinney v. McKinney, 5th Dist. Stark No. 2014CA00118, 2015-Ohio-1114, ¶¶
11-12 quoting Beach v. Beach, 99 Ohio App. 428, 431, 130 N.E.2d 164 (1955). “It is
irrelevant that the transgressing party does not intend to violate the court order.” Pedone
v. Pedone, 11 Ohio App. 3d 164, 165, 463 N.E.2d 656 (8th Dist.1983). “If the dictates of
the judicial decree are not followed, a contempt citation will result.” Id.
{¶16} Wife states the Divorce Decree and the attached Exhibit 15 identified the
separate property of Husband and Wife. Wife contends she properly followed the Divorce
Decree and did not remove any item from the marital residence listed in Exhibit 15 as
being Husband’s separate property. Based on the vague wording of the Divorce Decree,
Morgan County, Case No. 16AP0007 6
Wife argues she was not adequately apprised she was forbidden from removing property
not listed in Exhibit 15 or the Divorce Decree from the marital residence. A party “cannot
be found in contempt if the contempt charge is premised on a party's failure to obey an
order of the court and the order is not clear, definite, and unambiguous and is subject to
dual interpretations.” Woodie v. Patterson, 5th Dist. No. 2013CA0022, 2014-Ohio-3017,
¶ 36 quoting Contos v. Monroe County, 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380;
Chilcote v. Gleason Const. Co., 5th Dist. Ashland No. 01COA01397, 2002-Ohio-746.
{¶17} Husband contends the Divorce Decree awarded the parties’ their separate
property. Items not listed in the Divorce Decree as separate property were marital
property to be auctioned. The twenty-nine items listed in Exhibit B were marital property.
{¶18} The Divorce Decree stated the parties’ tangible personal property was to
be auctioned off within sixty days of the date of the Divorce Decree. During the final
divorce hearing, Wife introduced Exhibit 15, a three-page list of tangible personal property
in the marital residence. The trial court found some of the tangible personal property items
listed in Exhibit 15 were separate property of Husband or Wife. In the Divorce Decree,
the trial court listed eight items in Exhibit 15 as Wife’s separate property and eight items
from Exhibit 15 as Husband’s separate property. The trial court also listed three items
(rocking chair, Ohio State birdhouse, and wooden mushroom) not found in Exhibit 15 as
Husband’s separate property. The Divorce Decree stated the specified items of separate
property were not to be included in the auction.
{¶19} The evidence at the contempt hearing demonstrated the property items
listed in Husband’s Exhibit B were not listed in the Divorce Decree as Husband or Wife’s
separate property; therefore, the Exhibit B items were marital property to be sold at
Morgan County, Case No. 16AP0007 7
auction. Exhibit 15 listed three pages of tangible personal property and only sixteen items
on Exhibit 15 were determined to be separate property. We do not find Exhibit 15 to be a
complete list of the parties’ tangible personal property. The trial court remarked that one
of the items listed in Exhibit B, an Airstream motor home, was not listed in Exhibit 15 by
Wife or discussed at the final divorce hearing, but neither party disputed owning the
Airstream motor home. (Tr. 96).
{¶20} We find the trial court did not abuse its discretion when it determined Wife
was in contempt for her failure to follow the terms of the Divorce Decree as to the
designation of separate and marital property. The items not listed in the Divorce Decree
as separate property were marital property and should have remained at the marital
residence to be sold at auction.
{¶21} Wife’s sole Assignment of Error is overruled.
Morgan County, Case No. 16AP0007 8
CONCLUSION
{¶22} The judgment of the Morgan County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Delaney, P.J.,
Wise, John, J. and
Baldwin, J., concur.