[Cite as Van Orden v. Van Orden , 2011-Ohio-2246.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
HANNAH VAN ORDEN, :
:
Plaintiff-Appellee, : Case No. 10CA10
:
vs. : Released: May 9, 2011
:
DAVID RICHARD VAN ORDEN, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Richard M. Lewis, and Christen Finley, The Law Firm of Richard M. Lewis,
LLC, Jackson, Ohio, for Appellant.
William S. Cole, Jackson, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Jackson County Court of Common Pleas
judgment finding Appellant, David Van Orden, in contempt. On appeal,
Appellant contends that the trial court erred in finding Appellant in contempt
of the court’s order to hold Appellee, Hannah Van Order, harmless from the
marital debt, in ordering Appellant to pay Appellee’s attorney fees
concerning the prosecution of the contempt, and in ordering Appellant to
make arrangements to pay the judgments obtained by Fifth Third Bank and
USAA against Appellee.
Jackson App. No. 10CA10 2
{¶2} In light of our finding that no final, appealable order exists, we
hereby dismiss the current appeal.
FACTS
{¶3} The parties were married on October 16, 1998, and five children
were born as issue of the marriage. Appellee filed a complaint for divorce
on September 27, 2006. A final divorce hearing was held on April 16, 2007.
Based upon the agreed statement of facts contained in the record, Appellant
filed a Chapter 7 petition for bankruptcy on August 20, 2007. On August
24, 2007, a magistrate’s decision was issued in the divorce proceeding, and
on September 20, 2007, the trial court issued an order adopting the
magistrate’s decision and issuing a decree of divorce. The divorce decree
specified that “Defendant shall pay all of the marital debt and hold the
Plaintiff harmless therefrom.”
{¶4} Subsequently, Appellee was sued by Fifth Third Bank and
USAA. Although Appellant obtained a discharge in bankruptcy on July 21,
2008, creditors Fifth Third Bank and USAA obtained judgments against
Appellee. On March 13, 2009, Appellee filed a contempt motion against
Appellant based upon his failure to hold her harmless on the marital debts.1
The trial court held a hearing on the motion on June 29, 2009, on December
1
The motion also raised other issues not pertinent to this appeal.
Jackson App. No. 10CA10 3
16, 2009, a magistrate’s decision finding Appellant in contempt of the hold
harmless agreement was issued. Although Appellant objected to the
magistrate’s decision, the trial court issued its entry adopting the
magistrate’s decision with respect to the hold harmless agreement on June 1,
2010.
{¶5} With respect to its finding that Appellant was in contempt of the
hold harmless agreement, the trial court found as follows:
“3. Defendant is in contempt of the Court’s Order to hold Plaintiff
harmless from the marital debt owed to Fifth Third Bank and USAA.
Defendant shall pay Plaintiff’s attorney fees for this motion within 90
days.
***
6. Defendant shall make arrangements within 90 days with Fifth Third
Bank and USAA to pay the judgments they obtained against
Plaintiff.”
The trial court did not provide Appellant an opportunity to purge his
contempt. Nor did the trial court impose any sort of fine or sanction, or
determine the amount of attorney fees owed to Appellee.
{¶6} It is from this order that Appellant brings his appeal, setting forth
a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN FINDING APPELLANT IN
CONTEMPT OF THE COURT’S ORDER TO HOLD APPELLEE
HARMLESS FROM THE MARITAL DEBT AND IN ORDERING
Jackson App. No. 10CA10 4
APPELLANT TO PAY APPELLEE’S ATTORNEY FEES
CONCERNING THE PROSECUTION OF THE CONTEMPT AND
TO MAKE ARRANGEMENTS TO PAY THE JUDGMENTS
OBTAINED BY FIFTH THIRD BANK AND USAA AGAINST
APPELLEE.”
LEGAL ANALYSIS
{¶7} “Civil contempt sanctions are designed to coerce compliance
with a court order or to compensate a complainant for loss sustained by the
contemnor's disobedience.” Slone v. Slone, Pike App. No. 01CA665, 2002-
Ohio-687; citing, Boggs v. Boggs (1997), 118 Ohio App.3d 293, 299, 692
N.E.2d 674; citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250,
253, 416 N.E.2d 610. “One found in civil contempt must be provided with
the opportunity to purge himself of contempt.” Slone, supra; citing Carroll v.
Detty (1996), 113 Ohio App.3d 708, 712, 681 N.E.2d 1383; In re Purola
(1991), 73 Ohio App.3d 306, 312, 596 N.E.2d 1140; See, also, Amsbary v.
Amsbary (March 25, 1997), Gallia App. No. 96CA11, 1997 WL 139440.
Furthermore, an appellate court reviews a trial court's contempt finding
under an abuse of discretion standard. Slone, supra; citing, Denovchek v. Bd.
of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16, 520 N.E.2d 1362.
{¶8} Initially, we must address a threshold jurisdictional issue. Ohio
appellate courts have jurisdiction to review the final orders or judgments of
inferior courts within their district. Section 3(B)(2), Article IV of the Ohio
Jackson App. No. 10CA10 5
Constitution. Also see R.C. 2501.02. If a judgment is not final and
appealable, then an appellate court has no jurisdiction to review the matter
and it must be dismissed. Prod. Credit Assn. v. Hedges (1993), 87 Ohio
App.3d 207, 210, 616 N.E.2d 591 at fn. 2; Koons v. Pemberton (1992), 84
Ohio App.3d 499, 501, 617 N.E.2d 701. As set forth above, one found in
civil contempt must be provided with an opportunity to purge. Here, the
trial court found Appellant in contempt but gave him no ability to purge his
contempt.
{¶9} Further, contempt generally consists of both a finding of
contempt and the imposition of a penalty or a sanction. As provided in R.C.
2705.05:
“(A) In all contempt proceedings, * * *. If the accused is found guilty, the
court may impose any of the following penalties:
(1) For a first offense, a fine of not more than two hundred fifty dollars, a
definite term of imprisonment of not more than thirty days in jail, or
both;”
This court has held that “[u]ntil a court issues a penalty or sanction, no final
appealable order exists.” Slone, supra; citing See In re Smith (Jan. 31, 1991),
Jackson App. No. 630, 1991 WL 14098 (“in the absence of one of these
sanctions [either fine or imprisonment], there is no appealable order * * *”).;
See, also, Thompson v. Pendleton, Scioto App. No. 00CA2737, 2001-Ohio-
2531.
Jackson App. No. 10CA10 6
{¶10} We further note that the trial court ordered Appellant to pay
Appellee’s attorney fees related to the contempt motion. In Lawson v.
Lawson, Lawrence App. No. 01CA31, 2002-Ohio-409, we reasoned that “[a]
trial court possesses the authority to include reasonable attorney fees as part
of costs taxable to a defendant found guilty of civil contempt.” In Lawson,
at the time the contempt motion was appealed, the attorney fee award
remained pending for later determination and had yet to be resolved. Based
upon those facts, we held that there was no appealable order. In the case sub
judice, based upon our review of the record, it appears that while the trial
court ordered Appellant to pay Appellee’s attorney fees related to the
contempt motion, we can find no evidence in the record suggesting that the
amount was ever determined.
{¶11} Thus, based upon our review of the record, it appears that the
trial court did not provide Appellant an opportunity to purge his contempt,
did not impose any penalty or sanction, and did not determine that attorney
fee amount Appellant was ordered to pay. Thus, we must dismiss the instant
appeal for the lack of a final appealable order.
{¶12} Accordingly, based upon the foregoing reasons we hereby
dismiss the instant appeal.
APPEAL DISMISSED.
Jackson App. No. 10CA10 7
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.