[Cite as Meyers v. Meyers, 2011-Ohio-5968.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
DAVID A. MEYERS :
Plaintiff-Appellant : C.A. CASE NO. 2011 CA 9
v. : T.C. NO. 98DR423
KIMBERLY A. MEYERS : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellee :
:
..........
OPINION
Rendered on the 18th day of November , 2011.
..........
RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 West Fourth Street, Suite 100,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
JENNIFER L. BROGAN, Atty. Reg. No. 0075558 and KIRSTIE N. YOUNG, Atty. Reg.
No. 0084007, 400 PNC Center, 6 North Main Street, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of David Meyers,
filed February 4, 2011. Meyers appeals from the January 6, 2011 Judgment Entry of the
domestic relations court which approved and adopted the September 30, 2010 Magistrate’s
2
Decision and Order recommending that the court find David in contempt, for failing to pay
taxes, and sentence him to 30 days in jail.
{¶ 2} David and Kimberly Meyers were married in October, 1984, and they were
divorced in March, 2003. On February 24, 2010, Kimberly filed a “Motion for Order to
Show Cause,” in which she asserted that David failed to comply with the parties’ Final
Judgment and Decree of Divorce, which required him to assume responsibility for the
payment of taxes associated with the parties’ 1993 tax audit. David filed a Motion to
Dismiss, and the trial court conducted a hearing on July 26, 2010.
{¶ 3} The provision at issue in the parties’ final decree provides as follows:
{¶ 4} “4. TAX MATTERS
{¶ 5} “With respect to the 1993 tax audit, the Plaintiff shall assume responsibility
for the payment of all of the taxes, interest and penalties associated therewith. The Plaintiff
shall pay them as they become due and he shall hold the Defendant blameless and harmless
thereon. Further, the Plaintiff shall pay all of the taxes, interest and penalties due to the
federal government with respect to said audit within three years. The Defendant shall not
make any contribution toward the payment of any litigation costs associated with the IRS
debt.
{¶ 6} “With respect to all other remaining tax years, each party shall be responsible
for his or her own taxes, interest and/or penalties, and shall hold the other harmless and
blameless from the same.”
{¶ 7} At the hearing, Kimberly, appearing pro se, testified that following the 1993
audit , money was owed to the State of Ohio, and that her wages were being garnished to
3
satisfy the amount due. She stated that she learned that she was being assessed the tax by
the State in 2005. She presented a judgment from the Franklin County Court of Common
Pleas, dated June 6, 2005, in favor of the State of Ohio Department of Taxation, in the
amount of $149,415.02, as well as an Order of Garnishment against her, dated January 14,
2010. When asked for her interpretation of the above section of the final decree regarding
tax matters, Kimberly testified, “My interpretation was, is that we had a 1993 federal tax
audit, okay, and that he assumed responsibility for all the tax liabilities associated with that
1993 tax audit.”
{¶ 8} The following exchange occurred:
{¶ 9} “Q. * * * At the time that you were negotiating your settlement and divorce in
November [2002,] when it was read into the record, there was no issue with the Ohio tax
people, was there?
{¶ 10} “A. No, there wasn’t, because it hadn’t come to that point yet. There was
no issue with it because Ohio had not caught up with this federal audit yet.”
{¶ 11} Kimberly admitted that the federal tax deficiency had been paid.
{¶ 12} David identified a Decision from the United States Tax Court, dated January
27, 2003, which indicates a deficiency in income tax due to the IRS, for the year 1993, in the
amount of $274,000.00. David also identified a March 15, 2005 notice from the Ohio
Department of Taxation showing an amount due of $126,615.00. The notice provides that
the parties’ joint Ohio income tax return was being adjusted due to information received
from the IRS regarding their 1993 Ohio Individual Income Tax Return. Specifically, the
parties’ income on the Ohio return was being corrected to reflect the amount determined to
4
be appropriate by the federal tax audit. The attached corrections form shows that for 1993,
the parties’ federal adjusted gross income, “as filed,” was $17,674.00. The form further
shows that their federal adjusted gross income, “as corrected,” was $991,072.00, resulting in
the amount due of $126,615.00. According to David, there was no discussion or agreement
at the time of his divorce regarding the payment of taxes to the State of Ohio for 1993.
{¶ 13} In finding in favor of Kimberly, the Magistrate determined that the “plain
language of the first sentence of the tax provision states [David] shall assume responsibility
for all of the taxes associated with the 1993 tax audit.” The Magistrate noted that she
reviewed the transcript of the parties’ settlement hearing, and that the parties agreed that
David would hold Kimberly blameless and harmless for any taxes, interest and penalties
associated with the 1993 tax audit. According to the Magistrate, the “only parameter
established is that [David] was to pay the federal government within three years.” It was
further significant to the Magistrate that the March 15, 2005 notice from the Ohio
Department of Taxation provides that the parties’ 1993 State of Ohio tax return was adjusted
pursuant to the information which was associated with and arose from the 1993 Federal Tax
Audit.
{¶ 14} Accordingly, the Magistrate recommended that the court find David in
contempt “for his willful failure to pay the taxes as Ordered” and sentence him to 30 days.
Since it was David’s first finding of contempt, the Magistrate recommended that the court
suspend his sentence on the condition that he reimburse Kimberly “for all the monies she has
paid to the State of Ohio Department of Taxation,” which was $2,250.00 through July 26,
2010, the date of the hearing on her motion. A further condition was that David contact
5
the State of Ohio Department of Taxation to structure repayment of the tax deficiency. The
Magistrate recommended that David pay Kimberly the sum of $450.00 a month until the tax
obligation “is either redirected or satisfied in full.” David filed objections, as well as
supplemental objections, and the trial court adopted the Magistrate’s decision and set
sentencing for February 9, 2011. David’s appellate brief provides that he requested a stay in
the trial court pending appeal, which was granted.
{¶ 15} On March 9, 2011, this Court ordered David to show cause why the instant
appeal should not be dismissed for lack of a final appealable order, noting that the mere
finding of contempt, without the imposition of a sanction, is not final. David filed a
response, arguing that the Magistrate in her order, adopted by the trial court, recommended a
finding of contempt and also imposed a 30 day sentence that could be suspended
conditionally. David further asserted that the sentencing hearing was solely for the purpose
of ordering execution of the 30 day sentence. On April 22, 2011, this court deemed its
March 9, 2011, show-cause order satisfied.
{¶ 16} David asserts one assigned error herein as follows:
{¶ 17} “THE TRIAL COURT ERRED IN FINDING APPELLANT IN
CONTEMPT.”
{¶ 18} “Civil contempt is characterized by a conditional sentence or fine that can be
avoided by compliance. (Citation omitted). * * *
{¶ 19} “A finding of civil contempt requires clear and convincing evidence of
non-compliance with the court’s order. (Citations omitted).” Baird v. Byrd, Montgomery
App. No. 19808, 2003-Ohio-6252, ¶ 15-16. “‘Clear and convincing evidence’ is a degree
6
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. * * * ‘Clear and
convincing evidence’ is that which will produce in the mind of the trier of fact a firm belief
or conviction as to the facts sought to be established. (Citation omitted).” Davis v. Davis,
Clark App. No. 06-CA-17, 2007-Ohio-322, ¶ 27.
{¶ 20} “When interpreting a divorce decree that incorporates the parties’ separation
agreement, as does the decree involved in the present case, the normal rules of contract
interpretation generally apply to ascertain the meaning of its language. (Citation omitted).
Because the construction of a written contract is a matter of law, the same is reviewed
without deference to the trial court’s determination. (Citation omitted).
{¶ 21} “When construing contract language, the principal goal is to effectuate the
parties’ intent. (Citations omitted). ‘The intent of the parties to a contract is presumed to
reside in the language they chose to employ in the agreement.’ (Citation omitted).”
Wallace v. Wallace, Greene App. No. 2006 CA 136, 2008-Ohio-205, ¶ 12-13. “[W]hen the
parties’ agreement is integrated into an unambiguous written contract, courts should give
effect to the plain meaning of the parties’ expressed intentions.” Id., ¶ 13.
{¶ 22} We agree with the trial court’s construction of the language of the Final
Judgment and Decree of Divorce as it required David to “assume responsibility for the
payment of all of the taxes, interest and penalties associated” with the 1993 tax audit. The
notice and corrections form from the Ohio Department of Taxation indicates that the parties’
income tax return was adjusted based upon the information received from the IRS for the
1993 calendar year. While David asserts in his brief that there was no discussion or
7
agreement regarding state taxes, at the time of their final hearing, the IRS had not
determined the parties’ corrected income for 1993. As Kimberly asserts in her brief, once
the parties’ adjusted gross income was increased from $17,674.00 to $991,072.00, logic
dictates that there would be additional state, and not just federal, taxes to pay. As the
Magistrate noted, the language in the parties’ decree is consistent with the transcript of the
parties’ final hearing, namely that David will pay “all” of the taxes associated with the 1993
audit when they become due and hold Kimberly blameless and harmless. David was
represented by counsel at the parties’ final hearing, and if the parties’ agreement was that he
would only be liable for the federal taxes for 1993, such language could have been included
in the decree. The decree does not limit David’s liability solely to federal taxes, and we
agree with the Magistrate that the only specific parameter regarding the payment of all of the
taxes is that all of the federal taxes were to be paid within three years. The very fact that the
decree requires David to pay “all” taxes, and then distinguishes repayment of the higher
federal taxes over three years, supports Kimberly’s assertion that the decree contemplates
more than federal taxes alone.
{¶ 23} Based upon the foregoing, we conclude that the trial court did not err in
finding David in contempt for failing to pay the state taxes. David’s sole assigned error is
overruled, and the judgment of the trial court is affirmed.
..........
FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Richard Hempfling
Jennifer L. Brogan
8
Kirstie N. Young
Hon. Steven L. Hurley