[Cite as Kachmar v. Kachmar, 2014-Ohio-652.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FRANCES KACHMAR, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 179
V. )
) OPINION
STEPHEN KACHMAR, JR., )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Mahoning County, Ohio
Case No.05DR575
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Matthew Giannini
1040 South Commons Place, Suite 200
Youngstown, Ohio 44514
For Defendant-Appellant Attorney Daniel Keating
170 Monroe, NW
Warren, Ohio 44483
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
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Dated: February 21, 2014
[Cite as Kachmar v. Kachmar, 2014-Ohio-652.]
DONOFRIO, J.
{¶1} Defendant-appellant Stephen Kachmar Jr. appeals the decision of the
Mahoning County Common Pleas Court, Domestic Relations Division, finding him in
contempt of court and sentencing him to 30 days in jail.
{¶2} After nearly 32 years of marriage, Stephen and plaintiff-appellee
Frances Kachmar separated and Frances filed for divorce. All of their children were
emancipated, so the only issues left for resolution were an equitable division of the
marital property, spousal support, and attorney fees. After initially reaching a
settlement agreement, Stephen took issue with his Social Security benefits being
considered when making the property division and pressed for a full trial despite
there remaining a substantial agreement on most issues.
{¶3} In the final decree, the trial court awarded Frances 60% of the marital
assets. Of particular relevance to the present appeal, the court awarded Frances the
Pontiac Grand Am and ordered that the other three vehicles be sold. In a subsequent
April 13, 2009 judgment entry, the trial court ordered Stephen to pay Frances
$3,600.00 in attorney fees. The court found that the amount of attorney fees was
“necessary and reasonable under the facts and the totality of the circumstances in
this case,” and that they were “necessitated as a direct result of Defendant’s
[Stephen’s] refusal to negotiate in good faith in lieu of the litigation of unmeritorious
issues in the proceedings conducted on 12/27/07, 12/28/07 and the preparation of
Findings of Fact and Conclusions of Law resulting therefrom.”
{¶4} Stephen appealed the final decree of divorce, including the subsequent
award of attorney fees, to this court. Kachmar v. Kachmar, 7th Dist. No. 08 MA 90,
2010-Ohio-1311. We found two of Stephen’s assignments of error with merit in part
concerning the trial court’s division of marital property. We found that the trial court
had erred in ordering Stephen to name Frances as a beneficiary of an unnamed life
insurance policy the existence of which was not supported by the record and that the
trial court abused its discretion by using inconsistent dates for the valuation of marital
property. This court affirmed the trial court’s judgment in all other respects, including
the award of attorney fees. The trial court’s disposition of the parties’ vehicles was
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not an issue in the appeal and that part of the court’s decree was left undisturbed.
{¶5} On May 2, 2011, Frances filed a motion to show cause claiming, among
other things, that Stephen had failed to pay her attorney fees and failed to deliver the
cars to the auctioneer. The trial court held a hearing on the motion on December 21,
2011. On April 16, 2012, the trial court issued findings of fact and conclusions of law.
The court found Stephen in contempt for failing to pay the attorney fees, but
suspended any jail sentence giving him until a compliance hearing scheduled for
June 1, 2012, to purge the contempt finding. Concerning the cars, the court noted
that Stephen had previously indicated to the court that the final decree had
misidentified one of the vehicles by incorrectly listing the year it was manufactured.
Apparently, the auctioneer was unsuccessful in making arrangements with Stephen
to get the cars and had received a call from an unknown person telling him that the
final decree was in error. Nonetheless, the court concluded that this did not rise to the
level of a willful violation of the court’s order. The court gave Stephen 14 days to
make arrangements with the auctioneer to sell the three vehicles, this time listing
them by make and model without any reference to the year.
{¶6} The compliance hearing was ultimately rescheduled and held on
September 21, 2012. At that hearing, Frances’ counsel indicated that Stephen had
paid only approximately 50% of the attorney fees. Stephen professed his inability to
pay the remaining attorney fees because he had been injured and was not able to
work full-time. However, he also claimed to have a transcript where Frances’ counsel
stated that he charged $100 per hour, rather than the $200 per hour upon which the
trial court had based its award of attorney fees. According to his calculations using
the lower per hour figure, Stephen contended Frances’ attorney had been paid in full.
As for the vehicles, he testified that he contacted the auctioneer and resurrected his
argument that the divorce decree incorrectly identified the year of the vehicles. At the
end of the hearing, the court found Stephen in contempt of court and sentenced him
to jail until he complied with the court’s order to transfer the vehicles and additionally
sentenced him to a definite term of 30 days in jail for failing to pay the remaining
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attorney fees.
{¶7} On September 24, 2012, Stephen’s counsel contemporaneously filed a
motion for a stay of execution of the jail sentence pending appeal. The trial court
granted the motion on September 26, 2012 and ordered Stephen released from jail.
{¶8} Initially, it should be noted that Frances has not filed a brief in this
matter. Therefore, we may accept Stephen’s statement of the facts and issues as
correct and reverse the judgment if Stephen’s brief reasonably appears to sustain
such action. App.R. 18(C).
{¶9} Stephen’s sole assignment of error states:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT
FOR CONTEMPT OF COURT.
{¶10} An appellate court’s standard of review of a trial court’s contempt
finding is abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75,
573 N.E.2d 62 (1991). An abuse of discretion exists if the trial court’s decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983).
{¶11} Stephen presents two sub-arguments under this sole assignment of
error – one directed at the award of attorney fees and the other to the vehicles. First,
he argues that he was financially unable to pay the remaining attorney fees and that
the trial court erred in sentencing him to a definite term in jail absent an express
finding that he intentionally and willfully violated the court’s order in that regard.
{¶12} Concerning Stephen’s argument that he is financially unable to fully pay
the award of attorney’s fees, “[i]t has long been held that in a contempt proceeding,
inability to pay is a defense and the burden of proving the inability is on the party
subject to the contempt order.” Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-
4783, 514, 979 N.E.2d 297, ¶ 20, citing State ex rel. Cook v. Cook, 66 Ohio St. 566,
570, 64 N.E. 567 (1902). “The order of the trial court fixing the amount to be paid and
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a party’s failure to comply with that order serve as prima facie evidence of contempt.”
Id. It is not unreasonable to place the burden of showing the inability to pay on the
party charged with contempt because their financial condition and ability to pay are
peculiarly within their own knowledge. Id.
{¶13} Stephen did testify that he had been on sick leave for six weeks which
had reduced his salary by 50%. (Tr. 3.) After that sick leave, he testified that he had
another, non-work-related injury involving a torn rotator cuff which has caused him
pain and required him to take days off from work. (Tr. 3, 5.)
{¶14} However, a complete review of the September 21, 2012 contempt
hearing transcript reveals that Stephen failed to meet his burden to prove his inability
to pay. At the beginning and again at the end of his argument before the trial court
concerning his alleged inability to pay, Stephen once more argued that Frances’
attorney only charged $100 per hour rather than the $200 per hour upon which the
trial court based its award of attorney fees. (Tr. 2, 6.) Given his calculations, Stephen
argued that the $2,000 he had already paid to Frances’ attorney constituted complete
payment of the attorney fees she incurred. (Tr. 6.)
{¶15} Stephen’s renewed argument concerning the propriety of the award of
attorney fees certainly could have been viewed by the trial court as calling into
question his credibility as it related to his claim of being unable to pay the award. In
assessing a defense of an alleged inability to pay, this court has recognized that the
trial court is in the best position to evaluate the credibility of the alleged contemnor in
that regard and this court will not substitute its judgment for that of the trial court in
such a situation. Anderson v. Anderson, 7th Dist. No. 96 CO 21, 1998 WL 841068, *4
(Dec. 1, 1998).
{¶16} We next turn to Stephen’s contention that the trial court erred in
sentencing him to a definite term in jail absent an express finding that he intentionally
and willfully violated the court’s order. Stephen has not cited any statutory or case
law that requires such an express finding. R.C. 2705.05, which governs penalties for
contempt, provides:
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(A) In all contempt proceedings, the court shall conduct a
hearing. At the hearing, the court shall investigate the charge and hear
any answer or testimony that the accused makes or offers and shall
determine whether the accused is guilty of the contempt charge. 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[.]
{¶17} A review of R.C. 2705.05 reveals no requirement that the trial court
make an express finding that the contemnor intentionally and willfully violated the
court’s order as a prerequisite to sentencing the contemnor to a term of an
imprisonment. Nor can such a requirement be gleaned from case law.
{¶18} Contempt has been variously classified as either direct or indirect,
criminal or civil. In re Carroll, 28 Ohio App.3d 6, 8, 501 N.E.2d 1204 (8th Dist.1985).
Indirect contempt of court “is one committed outside the presence of the court but
which also tends to obstruct the due and orderly administration of justice.” In re
Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946). R.C. 2705.02, which outlines
those acts that are in indirect contempt of court, provides in relevant part: “[a] person
guilty of any of the following acts may be punished as for a contempt: * * * (A)
[d]isobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or
command of a court or officer [.]”
{¶19} Criminal contempt is generally characterized by an unconditional prison
sentence that operates not as a coercive remedy but as punishment for the
completed act of disobedience and to vindicate the court's authority. Brown v.
Executive 200, Inc., 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610 (1980). In this
instance, the trial court sentenced Stephen to 30 days in jail for his failure to pay the
attorney fees as ordered. Thus, this appeal involves indirect criminal contempt.
{¶20} An action for indirect criminal contempt must be proven beyond a
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reasonable doubt. Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio
St.3d 121, 127, 573 N.E.2d 98. Intent to defy the court is an essential element of
indirect criminal contempt, Id.; In re Carroll, 28 Ohio App.3d 6, 10, 501 N.E.2d 1204
(8th Dist.1985). However, Stephen has not cited any case law that mandates that the
trial court make an express finding of intent. Indeed, intent may be inferred from the
totality of the circumstances. See In re Purola, 73 Ohio App.3d at 313, 596 N.E.2d
1140 (3d Dist.1991); see also State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796
(2001). The trial court certainly could have inferred Stephen’s intent to violate its
order from his renewed arguments at the contempt hearing concerning the propriety
of the award of attorney fees itself. Nevertheless, in this instance, the trial court was
not required to make an express finding that Stephen intentionally and willfully
violated the court’s order in order to sentence him to jail for contempt.
{¶21} Stephen’s second sub-argument under this sole assignment of error is
that the trial court’s sentencing him to jail over the vehicles violated his due process
rights of notice and opportunity to be heard because the court had previously found
him not in contempt on that issue.
{¶22} Following the first show cause hearing, the trial court determined that
Stephen had not willfully violated the court’s order concerning the transfer of the
vehicles to the auctioneer, but did give 14 days to make arrangements with the
auctioneer to get the vehicles transferred so that they could be sold. Consequently,
Stephen argues he was denied due process rights of notice and an opportunity to be
heard when the trial court sentenced him to a “term of imprisonment” following the
September 21, 2012 compliance hearing.
{¶23} Stephen’s argument misconstrues the import of the trial court’s different
entries in this case. At the initial December 21, 2011 show cause hearing, testimony
was taken and arguments heard on the issue of whether Stephen had complied with
the court’s final decree concerning the transfer of the vehicles to the auctioneer.
While the trial court did not cite Stephen for noncompliance in that regard in its
findings of fact and conclusions of law issued on April 16, 2012, following the
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hearing, the trial court did give Stephen 14 days to make arrangements with the
auctioneer to sell the vehicles. Thus, he had an opportunity to be heard on the issue
at the December 21, 2011 show cause hearing and had notice from the April 16,
2012 findings of fact and conclusions of law. Consequently, under the facts and
circumstances of this case, Stephen was afforded due process. Moreover, contrary to
Stephen’s assertion, the trial court did not sentence him to a “term of imprisonment”
for his failure to transfer the vehicles. Rather, it sentenced him to jail until he purged
himself from the contempt.
{¶24} In sum, Stephen did not meet his burden to prove his defense of
inability to pay the award of attorney fees and the trial court was not required to make
an express finding that he had intentionally and willfully failed to pay the attorney fees
as a predicate to a contempt finding for his failure to do so. Additionally, Stephen was
afforded due process on the trial court’s contempt finding concerning the vehicles
because there was a hearing at which that issue was litigated and he had notice
when the trial court gave him 14 days in its findings of fact and conclusions of law to
comply with the court’s order. Consequently, the trial court did not abuse its
discretion in finding Stephen in contempt.
{¶25} Accordingly, Stephen’s sole assignment of error is without merit.
{¶26} The judgment of the trial court is affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.