Frey v. Frey

[Cite as Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
FREY,
APPELLEE, CASE NO. 5-11-12
v.
FREY, n.k.a
NIGH, OPINION
APPELLANT.
Appeal from Hancock County Common Pleas Court,
Domestic Relations Division
Trial Court No. 2001-DR-287
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: November 21, 2011
APPEARANCES:
John A. Kissh Jr., for appellee.
William E. Clark, for appellant.
Case No. 5-11-12
SHAW, Judge.
{¶ 1} Appellant, Kimberly Frey, n.k.a. Nigh (“Kimberly”) appeals the
March 15, 2011 judgment of the Hancock County Court of Common Pleas,
Domestic Relations Division, finding her in contempt of its order to pay child
support.
{¶ 2} Kimberly and Rick Frey (“Rick”) divorced in May 2002. There
were three children born from the marriage. Rick was designated as the children’s
residential parent. The divorce decree did not provide for either party to pay child
support. After the entry of the original divorce decree, Kimberly moved to
reallocate parental rights in January 2003. The magistrate denied Kimberly’s
motion.
{¶ 3} In May 2004, Kimberly again moved to modify parenting time and
the designation of residential parent and for a review of child support. In May
2005, the magistrate granted Kimberly’s motion to modify parenting time, finding
that modification of the parenting-time schedule was in the best interest of the
children. Kimberly was granted additional visitation with the children. The
magistrate identified Rick as the residential parent on the child-support calculation
worksheet and concluded that Kimberly should not be required to pay him child
support.
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{¶ 4} Kimberly subsequently filed a motion for clarification and
reconsideration, alleging that the magistrate failed to address her request that Rick
pay her child support. In a supplemental order, the magistrate designated
Kimberly as the residential parent and obligee on the child-support worksheet for
purposes of calculating child support, which yielded a guideline child-support
figure of $1,013.68 per month owed by Rick. The magistrate then deviated from
the guideline support amount pursuant to R.C. 3119.22 and 3119.23, finding that
among other things, requiring Rick to pay guideline support “would be
burdensome and contrary to the best interests of the children.” Consequently, the
magistrate ordered Rick to pay Kimberly $100 a month, per child, or $300 a
month, plus processing fees.
{¶ 5} The order was adopted by the trial court. Rick appealed the decision
to this court, arguing that the designation of Kimberly as residential parent on the
child-support worksheet was in error because the children primarily reside with
him. See Frey v. Frey, 3d Dist. No. 5-06-36, 2007-Ohio-2991, 2007 WL
1731592.
{¶ 6} This court concluded that Rick was in fact the residential parent
based upon the time the children resided with him. We then determined that the
trial court erred in designating Kimberly as the residential parent on the child-
support calculation worksheet and erred in ordering Rick to pay child support
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without finding that it was in the best interest of the children. This court then
remanded the matter to the trial court “with instructions to determine if ordering
Father to pay Mother child support is in the best interest of the children and, if so,
to designate Father as the residential parent in calculating the pertinent child
support worksheet.” Frey v. Frey, 2007-Ohio-2991, 2007 WL 1731592, ¶ 37.
{¶ 7} On remand, the magistrate issued a decision finding that ordering
Rick to pay child support was in the best interest of the children. It is apparent
from the record that no additional evidence was taken prior to the issuance of the
magistrate’s decision on remand. Rick filed objections to the magistrate’s
decision, and the trial court adopted the decision.
{¶ 8} Rick appealed to this court for the second time. Frey v. Frey, 3d
Dist. No. 5-09-11, 2009-Ohio-5275, 2009 WL 3165582. On October 3, 2009, we
concluded that the trial court made no determination on whether there had been a
change of circumstances sufficient to warrant a modification in the child-support
order and reversed the trial court’s decision awarding Kimberly child support. Id.
at ¶ 15.
{¶ 9} On October 13, 2009, Rick filed a motion requesting the magistrate
to grant him a judgment against Kimberly for the amount he erroneously paid her
in child support over the past several years. Rick argued that since he has been
making his monthly payments of $300, plus processing fees, the Hancock County
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Child Support Enforcement Agency (“HCCSEA”) has collected and dispersed a
total of $13,519.16 to Kimberly. Based on this court’s decision finding that the
prior child-support order was made in error, Rick requested the court to issue him
a lump-sum repayment, plus statutory interest, for his overpayment to Kimberly.
Rick also requested that Kimberly be made subject to a “seek work” program
through HCCSEA, if the court found her to be unemployed or voluntarily
underemployed.
{¶ 10} On December 31, 2009, Rick filed a motion to modify his child-
support obligation. In the same motion, he also requested the trial court to
reimburse him for the funds he paid to Kimberly under its previous child-support
order.
{¶ 11} In the interim, Kimberly appealed this court’s decision in Frey v.
Frey, 3d Dist. No. 5-09-11, 2009-Ohio-5275, 2009 WL 3165582, to the Supreme
Court of Ohio. On February 10, 2010, the Supreme Court declined to accept the
case for review. The parties made continued efforts to resolve the overpayment
issue.
{¶ 12} On June 9, 2010, the trial court held a hearing on Rick’s motions. At
the hearing, the parties advised the court that they had resolved all the issues
pending at the time. The parties recited their agreement on the record and
submitted a proposed agreed judgment entry for the trial court’s review. On
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August 4, 2010, the trial court approved and adopted the parties’ agreement,
finding it to be “fair, equitable, and in the best interests of the children.”
{¶ 13} The August 4, 2010 agreed judgment entry outlined the following
orders:
1. All monies held in escrow by the Child Support Enforcement
Agency shall be released immediately to the Father, Rick Frey.
2. The Father’s current Child Support withholding shall be
terminated immediately.
3. The Mother, Kimberly Nigh, shall pay a lump sum to the
Father, Rick Frey, in the amount of $1,000.00, to be paid
immediately.
4. After the termination of the Father’s Child Support obligation
and upon receipt of the lump sum herein, Mother will owe $9,823.00
to Father for the overpayment of Child Support.
5. Mother shall pay child support to Father in the amount of
$356.57 per month, effective as of January 1, 2010. In addition,
Mother shall pay Father $72.00 per month towards the overpayment
she received. In addition, Mother shall pay any processing fees in
accordance with the Ohio Revised Code. All payments, including
processing fee[s] at the legal rate shall be payable through the Ohio
Office of Child Support. A copy of the Child Support calculations is
attached hereto.
6. Mother shall immediately establish an account with a financial
institution under the jurisdiction of the court and maintain in that
account funds sufficient to satisfy her child support obligation set
forth herein. Mother shall provide the Hancock County Child
Support Enforcement Agency information regarding the account and
shall take whatever steps necessary for child support payments to be
automatically withdrawn from said account.
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7. The Mother shall be subject to seek a work order [sic].
8. Court costs shall be divided equally between the parties.
{¶ 14} On November 8, 2010, HCCSEA filed a motion to show cause and a
petition for contempt, on Rick’s behalf, alleging that Kimberly had failed to pay
child support, as previously ordered by the trial court on August 4, 2010. On
January 19, 2011, the trial court held a hearing on the contempt matter. Kimberly
provided testimony concerning her efforts and ability to pay her child-support
obligation.
{¶ 15} On March 15, 2011, the trial court found that Kimberly had satisfied
the lump-sum payment of $1,000 to Rick, but had failed to make the monthly
child-support payments, without justification, as directed by the August 4, 2010
agreed judgment entry. Consequently, the trial court found Kimberly in contempt
of court because she failed to make the monthly child-support payments as ordered
by the trial court. The trial court ordered the following as a sanction for
Kimberly’s contempt of court.
It is further ordered that the Defendant is hereby sentenced to a term
of ten (10) days in the Hancock County Justice Center for violation
of the court’s order; however, this sentence is hereby suspended
upon the following conditions:
1. Defendant shall seek employment sufficient to earn a
minimum of $1,282.00 per month, which is the equivalent of a
salary at a minimum wage hourly rate of $7.40 for forty hours
per week.
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2. Until such time as the Defendant is employed and earns
$1,282.00 per month, the Defendant shall seek work and
complete the reporting forms issued by the HCCSEA and shall
return one completed form each week to her case manager at the
HCCSEA.
3. The Defendant shall immediately contact the HCCSEA
regarding any changes in her residence address or place of
employment.
4. The Defendant shall pay the child support as presently owed
on a monthly basis.
This matter shall be continued for further review upon the call of the
court. The Defendant shall pay all costs associated with this motion
within thirty (30) days of the filing of this entry.
{¶ 16} Kimberly now appeals the trial court’s finding of contempt, alleging
the following assignments of error.
Assignment of Error No. I
The trial court erred and abused its discretion when it held
defendant in contempt of court for violation of a previous order
because appellant was unable to pay yet made efforts to meet her
obligation.
Assignment of Error No. II
The trial court erred and abused its discretion when it
imposed upon appellant an order to obtain employment or provide
written verification of attempts to obtain full time, minimum wage
employment.
Assignment of Error No. III
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The trial court erred and abused its discretion when it
imposed upon appellant an order imposing penalties but no
opportunity to purge herself of the contempt charge.
{¶ 17} At the outset, we note that under Ohio law, “ʻ[c]ontempt of court
consists of two elements. The first is a finding of contempt of court and the
second is the imposition of a penalty or sanction, such as a jail sentence or fine.
Until both a finding of contempt is made and a penalty [is] imposed by the court,
there is not a final order. The mere adjudication of contempt is not final until a
sanction is imposed.’” Cooper v. Cooper (1984), 14 Ohio App.3d 327, 328-329,
471 N.E.2d 525, quoting Chain Bike v. Spoke ‘N Wheel, Inc. (1979), 64 Ohio
App.2d 62, 64, 410 N.E.2d 802. On appeal, HCCSEA contends that the trial
court’s order finding Kimberly in contempt of court is not a final, appealable order
because it imposed a suspended jail sentence, thereby not satisfying the second
element. We disagree. It is well within the authority of the trial court to suspend a
sentence to afford an accused contemnor an opportunity to purge himself of the
contempt. See generally State ex rel. Turner v. Bremen (1928), 118 Ohio St. 639,
163 N.E. 302; see also Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250,
253, 416 N.E.2d 610 (stating that a conditional prison sentence may be imposed
for civil contempt); Abernethy v. Abernethy, 8th Dist. No. 92708, 2010-Ohio-435,
2010 WL 457133, ¶ 37 (“The addition of the sentence, albeit, suspended, supplies
the second element rendering the order final”). Accordingly, we conclude that the
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trial court’s order finding Kimberly in contempt of court is a final, appealable
order.
First Assignment of Error
{¶ 18} In her first assignment of error, Kimberly argues that the trial court
abused its discretion in finding her in contempt of court. Contempt is defined in
general terms as disobedience of a court order. State ex rel. Corn v. Russo (2001),
90 Ohio St.3d 551, 554, 740 N.E.2d 265; see R.C. 2705.02(A). “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 (1971), 27 Ohio St.2d 55, 271 N.E.2d 815,
paragraph one of the syllabus.
{¶ 19} In the case sub judice, Kimberly does not dispute her disobedience
of the August 4, 2010 agreed judgment entry. However, she argues that she
cannot be held in contempt of court because she presented an affirmative defense
of her inability to pay the child-support obligation ordered by the trial court. A
prima facie case of contempt is established when the order is before the court
along with proof of the contemnor’s failure to comply with it. Dzina v. Dzina, 8th
Dist. No. 83148, 2004-Ohio-4497, 2004 WL 1902566. Inability to pay support is
a valid defense in a contempt proceeding. Courtney v. Courtney (1984), 16 Ohio
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App.3d 329, 334, 475 N.E.2d 1284. The party who failed to comply with the
court order to pay support bears the burden of proving an inability to pay. Pugh v.
Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. If a party makes a good-
faith effort to pay support, contempt is not justified. Courtney. When reviewing a
finding of contempt, an appellate court applies an abuse-of-discretion standard.
See State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249.
{¶ 20} On appeal, Kimberly essentially argues that her inability to pay her
child-support obligation is through no fault of her own. She also argues that she
has made efforts to comply with the trial court’s order by paying the $1,000 lump
sum to Rick, as required by the August 4, 2010 agreed judgment entry, and by
making five $20 installments towards her child-support obligation.
{¶ 21} At the January 19, 2011 contempt hearing, Kimberly testified that at
the time of the August 4, 2010 agreed judgment entry, she worked as a realtor for
ERA Noakes Realty Group. Kimberly testified that since the entry of the child-
support order, she had not earned any income as a realtor because she had not
participated in any real estate closings between August 2010 and the time of the
January 2011 contempt hearing. Kimberly explained that she started a part-time
job in December 2010, about a month prior to the contempt hearing, working for
Peterman & Associates doing research. There, she earned $12 an hour, but had
only worked 20 to 25 hours during the past two-week pay period. Kimberly
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explained that she previously worked with Peterman & Associates in 2009 and
that her hours were less in the winter months because there is a seasonal need for
her position at the company. Kimberly also testified that the she has tried to find
additional employment by answering ads and filling out applications online, but
has been unsuccessful in getting hired.
{¶ 22} Kimberly admitted that her husband provided for all her financial
needs, such as the mortgage payment, her car payment, and child care for their
eight-year-old daughter, who is the child from her current marriage and not subject
to the child-support order at issue.
{¶ 23} The evidence also demonstrates that payments towards Kimberly’s
child-support obligation were made in the amounts of $55.18 and $69.98 through
Kimberly’s employer on December 14 and 28, 2010. As previously mentioned,
Kimberly also paid five $20 installments toward her child-support obligation on
January 8, 2011. In reviewing the trial court’s judgment entry finding Kimberly in
contempt, the trial court determined that Kimberly had failed to prove the
affirmative offense of her inability to pay her child-support obligation.
{¶ 24} Kimberly argues that the fact that she earned no income as a realtor
between August 2010 and January 2011 is sufficient to prove her inability to pay
her child-support obligation. Kimberly also argues that the fact that she is
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working fewer hours at her part-time position because work is slower in the winter
months than in the warmer months is not within her control.
{¶ 25} However, the record demonstrates that Kimberly held the same
position as a realtor with the same company when the parties submitted the August
4, 2010 agreed judgment entry to the trial court. At the time Kimberly negotiated
this agreement with Rick, she was purportedly able to afford the payments stated
in the child-support order based upon her employment status at the time.
However, rather than obtain other employment or contact HCCSEA about her
alleged financial hardship, Kimberly simply failed to make any payments toward
her ongoing child-support obligation for nearly four months, following the entry of
the August 4, 2010 child-support order until December 2010. Only after
HCCSEA filed its petition for contempt did Kimberly obtain other, part-time
employment at Peterman & Associates in mid-December of 2010 and
subsequently make the nominal payments previously mentioned.
{¶ 26} Even though Kimberly testified that she had attempted to find other
employment during this time, the trial court is still free to determine her credibility
on the issue and assign weight to her testimony accordingly. It is evident that the
trial court was not persuaded by Kimberly’s testimony that her inability to comply
with the court’s child-support order was through no fault of her own, but rather
that these were circumstances within her control—i.e., that Kimberly was
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voluntarily underemployed. See Piciacchia v. Piciacchia, 5th Dist. No.
2006CA00286, 2007-Ohio-2328, 2007 WL 1413216, ¶ 28 (stating that trial court
did not err in finding former husband voluntarily underemployed, which negated
his affirmative defense of inability to pay, because the husband did not seek
alternative employment during slow work periods).
{¶ 27} Kimberly also argues that the efforts she made to pay her child-
support obligation precludes the trial court from finding her in contempt of court.
Kimberly attributes her satisfaction of the $1,000 lump-sum payment as evidence
of her efforts. However, this lump sum was negotiated by the parties as a payment
to be made immediately upon the signing of the August 4, 2010 agreed judgment
entry. Moreover, the trial court was free to assess whether Kimberly’s gesture in
making the $100 payment one week prior to the contempt hearing constituted a
good-faith effort to pay her child-support obligation.
{¶ 28} Based on the evidence before us, we find that the trial court did not
err in finding Kimberly in contempt of its August 4, 2010 agreed judgment entry.
Kimberly’s first assignment of error is overruled.
Second and Third Assignments of Error
{¶ 29} We elect to discuss Kimberly’s second and third assignments of
error together because they are interrelated.
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{¶ 30} In her remaining assignments of error, Kimberly challenges the trial
court’s contempt sanction. Specifically, Kimberly maintains that the trial court
abused its discretion (1) when it suspended her ten-day jail sentence on the
conditions that she obtain full-time employment and provide verification to
HCCSEA of her attempts to obtain full-time employment and (2) when it imposed
penalties upon her without providing her an opportunity to purge the contempt.
{¶ 31} It is undisputed by the parties that Kimberly was found to be in civil
contempt for her disobedience of the August 4, 2010 agreed judgment entry in
failing to pay her child-support obligation. “Civil contempt renders punishment
that is remedial or coercive and for the benefit of the complainant. Prison
sentences are conditional.” Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d
250, 253, 416 N.E.2d 610. Any sanction for civil contempt must allow the party
who is in contempt an opportunity to purge the contempt. Carroll v. Detty (1996),
113 Ohio App.3d 708, 712, 681 N.E.2d 1383.
{¶ 32} In the present case, the trial court imposed a ten-day jail sentence on
Kimberly as a contempt sanction. However, the trial court suspended the sentence
subject to Kimberly’s compliance with four conditions. The first two conditions
in essence require Kimberly to obtain a full-time job making at least minimum
wage and to submit weekly verifications to HCCSEA of her efforts to obtain such
employment until she is hired. The third condition required Kimberly to inform
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HCCSEA of any residence or employment change, and the fourth condition
mandated that Kimberly “pay the child support as presently ordered on a monthly
basis.”
{¶ 33} After our review of these conditions, we have three specific
concerns. First, it is not clear from the language used in the judgment entry
whether these four conditions are conditions on the ten-day jail sentence or
whether they are an attempt to create an opportunity for Kimberly to purge the
contempt. Notably, the trial court did not use the word “purge” or otherwise
characterize its decision in terms of an opportunity to purge anywhere in its
judgment entry when imposing the contempt sanction.
{¶ 34} Second, we find the condition simply requiring Kimberly to “pay the
child support as presently ordered on a monthly basis” to be ambiguous because
there are at least three components of the August 4, 2010 child-support order that
are not specifically identified in this condition. In particular, the “child-support”
order at issue specifies two distinct payments to be made by Kimberly to
HCCSEA each month—Kimberly’s ongoing monthly child-support obligation of
$356.57 and Kimberly’s obligation to pay $72 a month for Rick’s prior
overpayment to her in child support. In addition to these two payments, there is a
third component to the child-support order, which is the arrearage for the ongoing
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monthly child support in the amount of $356.57 that Kimberly has failed to pay
from January 1, 2010 to the contempt hearing on January 16, 2011.
{¶ 35} The trial court did not delineate which of these components of the
child-support order Kimberly must comply with in order to satisfy the fourth
condition. This distinction is significant because several appellate courts have
held that a purge order may provide for suspension of a jail sentence on condition
that the contemnor pays an arrearage; however, those courts have also held that a
purge order may not regulate future conduct by conditioning the suspension of a
jail sentence on the contemnor making payments on current support obligations.
See, e.g., Marden v. Marden (1996), 108 Ohio App.3d 568, 571, 671 N.E.2d 331;
Tucker v. Tucker (1983), 10 Ohio App.3d 251, 252, 461 N.E.2d 1337; Kungle v.
Kungle, 5th Dist. No. 2006CA00367, 2007-Ohio-4929, 2007 WL 2753175.
Accordingly, even if we were to construe the fourth condition as an opportunity to
purge, it would not be in accord with the decisions of other appellate courts to the
extent that it merely required Kimberly to pay her current ongoing child-support
obligation.
{¶ 36} Third, we find no error in the trial court’s decision to require
Kimberly to seek work at a minimum-wage level for two reasons: (1) The trial
court determined that Kimberly’s previous inability to meet her monthly child-
support obligation was within her control and (2) Kimberly was on notice that she
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may be subject to a seek-work order because it was one of the terms she agreed to
in the August 4, 2010 agreed judgment entry. However, in terms of an
opportunity to purge, we find it problematic that there is no deadline for her
compliance set forth in the trial court’s judgment entry. Notably, none of the
conditions established by the trial court contain a time limitation for Kimberly’s
compliance. In other words, it is not clear exactly how long Kimberly must
comply with the directives set out in the judgment entry until she is deemed to be
in compliance with the conditions—or alternatively is deemed to have purged her
contempt.
{¶ 37} In sum, given the cumulative effect of our concerns outlined above,
we find that it is unclear whether the trial court provided Kimberly with a valid
and ascertainable opportunity to purge its finding of civil contempt. Therefore, we
must conclude that in the absence of a clear opportunity to purge the contempt, the
trial court erred in imposing the contempt sanctions as they are presently stated.
For the reasons previously discussed and to this extent only, Kimberly’s second
and third assignments of error are sustained.
{¶ 38} Based on the foregoing the judgment of the Hancock County Court
of Common Pleas is affirmed in part and reversed in part, and the cause is
remanded for further proceedings consistent with this opinion.
Judgment affirmed in part
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and reversed in part,
and cause remanded.
ROGERS, P.J., and WILLAMOWSKI, J., concur in judgment only.
ROGERS, Presiding Judge, concurring separately.
{¶39} I concur with the majority that this case must be reversed, but I do
so for different reasons.
{¶40} In her first assignment of error Kimberly has argued an inability to
pay. However, the amounts due were negotiated by her and her counsel. The
amounts were not an arbitrary figure imposed by the trial court. She negotiated
the amounts and assured the trial court and Rick that she could and would pay
according to the negotiated agreement, and by that agreement she avoided a
pending motion for contempt. I do not believe that the alleged change in
circumstances was anything she did not or could not have foreseen when she
negotiated her way out of the prior motion for contempt. Therefore, I concur that
the finding of contempt was proper and would overrule the first assignment of
error.
{¶41} The second and third assignments of error are sufficiently related to
be considered together. The proper procedure in civil-contempt proceedings,
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after making a finding of contempt, is to place the contemnor on notice of the
intended sanction or penalty, and then the trial court must allow the contemnor an
opportunity to purge the contempt, that is, to do what was ordered or to eliminate
a deficiency.
{¶42} Some might read the trial court’s judgment entry imposing a
suspended sentence as an inartfully stated opportunity to purge. Treated as such,
this would result in a nonfinal order, and we would be required to dismiss this
appeal. However, I would hold that the procedure followed by the trial court was
improper and reverse with instructions to allow the contemnor the opportunity to
purge.
{¶43} It is apparent in this case that the trial court made a proper finding of
contempt, but then used the wrong procedure to impose a sentence. The trial
court here announced a sentence and then suspended the sentence on certain
conditions. The result is not the same as an opportunity to purge, particularly
when the conditions imposed have no relationship to the deficiency that gave rise
to the contempt. When the contempt is based on failure to pay support, the purge
must relate to paying what has not been paid, not to paying in the future or doing
other acts in the future. For these reasons, I would sustain the appellant’s second
and third assignments of error.
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{¶44} Accordingly, a reversal is necessary in order for the trial court to put
the appellant on notice of a potential penalty and for the trial court to give the
appellant an opportunity to purge on conditions that properly relate to the acts of
contempt.
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