[Cite as Haas v. Myers, 2016-Ohio-3316.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ALEXANDER HAAS : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2015CA00217
:
LINDSEY MYERS :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2010JCV00817
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 6, 2016
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
KIMBERLY R. HOPWOOD
ROBERT G. ABNEY STARK CO. J.F.S.
116 Cleveland Ave. NW 122 Cleveland Ave. NW
Suite 500 Canton, OH 44702
Canton, OH 44702 RAYMOND BULES
101 Central Plaza South
300 Chase Tower
Canton, OH 44702
Stark County, Case No. 2015CA00217 2
Delaney, J.
{¶1} Plaintiff-appellant Alexander Haas appeals from the November 25, 2015
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division.
Defendant-appellee is Lindsey Myers.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and appellee have never been married and have two children
together.
{¶3} In July 2010, appellant was ordered to pay child support of $869.37 per
month plus cash medical of $139.17 per month. These amounts were determined based
upon appellant’s statements on a loan application and appellee’s receipt of public
assistance.
{¶4} An arrearage was immediately created because the child support order was
backdated to the date of filing.
{¶5} On June 1, 2012, Stark CSEA administratively recommended reduction of
the order of support to $342.00 monthly with cash medical of $0.
{¶6} Appellee requested an administrative hearing. The administrative officer
used the income stated on the loan application, added appellee’s income, and applied
the Ohio Support Guidelines, establishing the child support order at $776.85 per month
plus cash medical at $162.25 per month.
{¶7} Appellant objected to the administrative decision and requested an
arrearage calculation. The latter motion was subsequently withdrawn. By Judgment
Entry dated February 13, 2013, the trial court refused to allow appellant to proceed with
Stark County, Case No. 2015CA00217 3
his objections due to his willful failure to comply with discovery orders requiring disclosure
of his income.
{¶8} On July 19, 2013, appellant filed a motion for equitable reduction in child
support arrearage amount.
{¶9} On August 7, 2013, appellant was found guilty of contempt and sentenced
to a jail term of 30 days. The trial court found appellant offered only self-serving opinions
as to his income; admitted he signed a loan application declaring income of $4500/month;
offered no evidence that the amounts used by CSEA were incorrect; and provided no
justification for deviation from child support guidelines. To purge the contempt, appellant
was ordered to make regular payments consistent with Stark CSEA regulations. The
arrearage was determined to be $23,280.60.
{¶10} On June 16, 2014, Stark CSEA filed a motion to show cause.
{¶11} On October 15, 2014, a magistrate found appellant in contempt, noting
appellant was not paying his full child support obligation and was instead paying $350 –
375 per month, “what he feels is appropriate.” The magistrate imposed a jail term of 30
days; to purge this finding, appellant was ordered to make full court-ordered child support
payments for a period of one full year. The arrears now totaled $26,098.90.
{¶12} Appellant objected to the magistrate’s decision and appellee responded
with a brief in opposition.
{¶13} On February 2, 2015, appellant filed a motion to modify child support. This
motion was later dismissed by the trial court because appellee was not served.
{¶14} On March 24, 2015, the trial court found appellant paid the full amount of
two months’ support. The jail term was suspended with the finding appellant could purge
Stark County, Case No. 2015CA00217 4
the contempt by paying 12 months’ current child support, cash medical, and $100.00 per
month on the arrearage.
{¶15} On August 24, 2015, Stark County CSEA filed a motion to impose the
suspended jail term arguing appellant paid as ordered for six months then again reduced
his payment to one-half the order of support.
{¶16} On November 20, 2015, appellant filed, e.g., a motion to modify child
support and a motion to rule upon his prior motion for equitable reduction in child support
arrearage.
{¶17} On November 25, 2015, the trial court found appellant failed to make
payments as ordered in the entry of March 24, 2015. Appellant was ordered to serve four
days of the 30-day jail term and the balance was suspended.
{¶18} Appellant now appeals from the trial court’s Judgment Entry dated
November 25, 2015.
{¶19} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶20} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT FAILED TO
PURGE HIS CONTEMPT.”
{¶21} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO FOUR
DAYS IN JAIL.”
Stark County, Case No. 2015CA00217 5
ANALYSIS
I.
{¶22} In his first assignment of error, appellant argues the trial court erred in
finding he failed to purge his contempt because the purge condition was invalid. We
disagree.
{¶23} An appellate court's standard of review of a trial court's contempt finding is
abuse of discretion. Anderson v. Cameron, 5th Dist. Stark No. 2008CA00042, 2009-Ohio-
601, ¶ 12, citing State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62
(1991). 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).
{¶24} In Campbell v. Pryor, 5th Dist. Stark No. 2010CA00231, 2011-Ohio-1222,
at ¶ 26, we observed,
A trial court may employ sanctions to coerce a party who is in
contempt into complying with a court order. Peach v. Peach, 8th Dist.
Cuyahoga Nos. 82414 and 82500, 2003–Ohio–5645, ¶ 37. Any
sanction for civil contempt must allow the party who is in contempt
an opportunity to purge the contempt. Carroll v. Detty, 113 Ohio
App.3d 708, 712, 681 N.E.2d 1383 (4th Dist.1996). A trial court
abuses its discretion by ordering purge conditions which are
unreasonable or where compliance is impossible. Burchett v. Miller,
123 Ohio App.3d 550, 552, 704 N.E.2d 636 (1997). If a party makes
a good faith effort to pay support, contempt is not justified. Courtney
Stark County, Case No. 2015CA00217 6
v. Courtney, 16 Ohio App.3d 329, 344, 475 N.E.2d 1284 (3rd
Dist.1984). The burden to show an inability to pay is on the party
being held in contempt. Danforth v. Danforth, 8th Dist. Cuyahoga No.
78010, 2009-Ohio-1341 (Apr. 15, 2001).” Farrell v. Farrell, Licking
App. No.2008–CA–0080, 2009–Ohio–1341, ¶ 15, citing Baker v.
Mague, Cuyahoga App. No. 82792, 2004–Ohio–1259, ¶ 14.
{¶25} The trial court abuses its discretion in ordering purge conditions which are
unreasonable or where compliance is impossible. Protz v. Protz, 5th Dist. Stark No.
2009CA00270, 2010-Ohio-2502, ¶ 19, citing In re Purola, 73 Ohio App.3d 306, 313, 596
N.E.2d 1140 (3rd Dist.1991).
{¶26} Appellant argues the purge condition imposed by the magistrate on October
15, 2014 was invalid. Appellant was ordered to make full court-ordered child support
payments for a period of one full year. Appellant argues this condition was invalid
because purge conditions that require contemnors to pay their already-ordered
obligations are invalid and do not provide a meaningful opportunity to purge a finding of
contempt.
{¶27} In Kungle v. Kungle, we found that a trial court’s decision to “hold over” a
contempt finding from 2001 to the final imposition of sentence in 2006 was improper
because it effectively “amounts to the court's reaffirmation of its previous support order
and can have no effect since any effort to punish a future violation of the support order
would require new notice, hearing, and determination.” 5th Dist. Stark No. 2006CA00367,
2007-Ohio-4929, ¶ 20, citing Tucker v. Tucker, 10 Ohio App.3d 251, 461 N.E.2d 1337
(10th Dist.1983) [failure to perform future acts cannot be found to constitute a failure to
Stark County, Case No. 2015CA00217 7
purge a contempt finding based upon past acts]. Appellant argues the purge condition
imposed by the magistrate is invalid pursuant to Kungle.
{¶28} Appellee acknowledges the original purge order by the magistrate was
invalid because it was merely a reaffirmation of its previous support order. State ex rel.
Brett v. Brett, 5th Dist. Knox No. 01CA000018, 2002-Ohio-1841, 2002 WL 561934, *3.
However, the trial court remedied the improper condition with the additional requirement
of paying $100 per month toward the arrears. In Sidwell v. Sidwell, the Tenth District
distinguished the facts of a similar case from Tucker, supra, “because the trial court's
purge condition in the case before us, in addition to providing for continued payment of
his ongoing child support obligation, required appellant to purge his past failure to make
child support payments by liquidating the accumulated arrearage at the rate of $100 per
month.” Sidwell v. Sidwell, 10th Dist. Franklin No. 96APF06-828, 1997 WL 101680, *2
(Mar. 4, 1997).
{¶29} In the instant case, appellant objected to the magistrate’s decision of
October 15, resulting in the hearing that was held before Judge Campbell on March 20,
2015 and the order of March 24, 2015. At the hearing, CSEA noted appellant sold a
motorcycle to pay the current order of support for two months, therefore it was not
requesting imposition of jail time. Appellant expressed concern that he would not be able
to keep up with the payments as ordered but had filed a new motion for modification that
might reduce the amount to one he was able to pay. In the resulting judgment entry of
March 24, 2015, the trial court suspended the jail term on the condition that appellant “pay
[ ] 12 months current child support, cash medical an[d] 100 dollars on th[e] arrearages.”
Stark County, Case No. 2015CA00217 8
{¶30} As noted supra, appellant’s pending motion to modify support was
dismissed because it wasn’t properly served.
{¶31} When the trial court imposed the 4-day jail term on November 25, 2015, it
was because appellant failed to meet the purge conditions of the March 24 judgment
entry. We disagree with appellant’s argument here that he was faced with “multiple purge
conditions.” Upon our review of the transcript of the March 20, 2015 hearing and the
resulting order, it is evident appellant was subject to one purge condition as noted in the
order: “pay[ ] 12 months current child support, cash medical an[d] 100 dollars on th[e]
arrearages.” While the entry out of context appears ambiguous with regard to the “100
dollars on the arrearages,” we note the following exchange on the record at the March 20
hearing:
* * * *.
THE COURT: * * * *. You understand? Do you have any
questions? Do you want to talk to your attorney for a minute before
we finish?
[APPELLANT]: That, can I ask, just ask for a point of
clarification from the opposing counsel?
THE COURT: You can ask the question, whether she’ll
answer, I don’t know.
[APPELLANT]: Ah…so, is it if I’m able to pay the support
payment, plus the cash medical, plus the standard amount on the
arrearages, which is a hundred dollars more a month, then for
twelve months starting in uh…May?
Stark County, Case No. 2015CA00217 9
[CSEA COUNSEL]: (Agreeing).
[APPELLANT]: Then if that amount is paid for twelve months,
then I never risk going to jail for this?
[CSEA COUNSEL]: No. My finding, the, the first part of your
question is and I did the math. If you pay * * * one thousand, ninety-
nine, fifty-six for twelve months, my finding of contempt poofs away.
[APPELLANT]: Could you re-file for contempt?
[CSEA COUNSEL]: Yes, I could.
[APPELLANT]: Okay.
[CSEA COUNSEL]: But it would poof away. But if you pay
eight, sixteen or eight-seventeen as you’re doing, I’m not going to file
another motion to impose because I know what you’re doing. You’re
paying the current order of support. I am going to utilize my other
remedies [including taking any large lump sums and applying them
toward the arrears.]
* * * *.
THE COURT: Alright. The Court will adopt the
recommendation of the [CSEA]. We’ll find you can purge the
contempt by virtue of paying the eight-sixteen, one hundred
dollars and the hundred and sixty-two, twenty five [plus
poundage].
* * * *.
Stark County, Case No. 2015CA00217 10
[APPELLANT]: * * *. [If] the amount is lowered, do I need to
pay the lower amount or continue to pay the eight, sixteen?
* * * *.
THE COURT: * * * *. If that number goes down in the
calculation, your obligation, other than the one hundred dollars
would be adjusted accordingly.
[APPELLANT]: Okay.
THE COURT: Okay? The hundred dollars on the arrears is
just there. And as long as you make that they’re not going to chase
you around.
* * * *.
T. (March 20, 2015), 12-15 (emphasis added).
{¶32} We thus find the trial court issued a valid purge condition. Appellee
established a valid child support order existed, appellant had knowledge of the order, and
failed to pay. Appellant’s failure to establish inability to pay is discussed infra. Appellant’s
first assignment of error is overruled.
II.
{¶33} In his second assignment of error, appellant argues the imposition of four
days of the 30-day jail term is an abuse of the trial court’s discretion. We disagree.
{¶34} Contempt has been defined as the disregard for judicial authority. State v.
Flinn, 7 Ohio App.3d 294, 455 N.E.2d 691 (1982). “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, 27 Ohio St.2d
Stark County, Case No. 2015CA00217 11
55, 271 N.E.2d 815 (1971), paragraph one of the syllabus. Again, our standard of review
regarding a finding of contempt is limited to a determination of whether the trial court
abused its discretion. In re Mittas, Stark App.No.1994CA00053 (Aug. 6, 1994). In order
to find an abuse of discretion, we must determine that 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).
{¶35} When a party is charged with contempt for violating a court order, the
person may defend by proving that it was not in his or her power to obey the law. Courtney
v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3rd Dist.1984). Appellant argues his
inability to pay is due to the fact that he does not earn enough to pay the entire child
support order. Appellant has repeatedly failed to support this argument with evidence
beyond his self-serving assertions that he cannot afford to pay the full amount.
{¶36} In Osborne v. Osborne, 5th Dist. Fairfield No. 2009-CA-35, 2009-Ohio-
6440, at ¶ 11, we observed:
In Seasons Coal Company v. City of Cleveland, [10 Ohio
St.3d 77, 461 N.E.2d 1273 (1984)], the Ohio Supreme Court quoted
5 Ohio Jurisprudence 3d (1978) 191-192, Appellate Review, Section
603, which states: “If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it that interpretation
which is consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.” The Seasons court went on to
explain “The underlying rationale of giving deference to the findings
of the trial court rests with the knowledge that the trial judge is best
Stark County, Case No. 2015CA00217 12
able to view the witnesses and observe their demeanor, gestures
and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons, supra, at 80.
{¶37} A defendant cannot shield himself from a finding of contempt by making
mere allegations he is unable to pay, without any supporting evidentiary material. Walters
v. Murphy, 5th Dist. Ashland No. 2006-COA-030, 2007-Ohio-3426, ¶ 9, citing Spring v.
Spring, 5th Dist. Tuscarawas No. 95AP080058 (April 17, 1996). At a minimum, a
defendant should present evidence he had made a good-faith effort to comply with the
court's order. Id., citing Stocker v. Couts, Tuscarawas App. No. 94AP070046 (March 13,
1995).
{¶38} The record in this matter reveals that appellant's chief response to the
contempt proceedings is that he is unable to pay the full amount ordered and therefore
pays what he feels to be appropriate: half of the ordered amount. Appellant has repeatedly
argued his self-reported income on a mortgage application should not have been used to
establish the child support order. However, we note this is appellant’s only appeal from
any order of the trial court. The trial court found on August 7, 2013 that appellant offered
only self-serving opinions about his income, offered no evidence to establish that the
figures used by CSEA were incorrect, and offered no justification for deviating from the
guidelines. Appellant did not appeal from the entry of August 7, 2013. These continued
arguments about his income are unavailing here.
{¶39} The testimony of the CSEA records custodian indicates that appellant was
first ordered to provide child support for his children effective July 26, 2010. In the time
since orders were established, we can find proof in this record of only four months
Stark County, Case No. 2015CA00217 13
appellant paid his full child support obligation, and he did not pay cash medical during
that time. He has repeatedly made only partial payments. It is uncontroverted that
appellant built up an arrearage of more than $32,496.96 through November 20, 2015.
{¶40} Upon review of the record in this case, we are unable to conclude the trial
court's contempt finding against appellant and imposition of jail time constituted an abuse
of discretion, and we decline to alter the determinations reached by the magistrate and
trial judge. See, Hagan v. Hagan, 5th Dist. Stark No. 2009 CA 00148, 2010-Ohio-540.
The trial court’s decision to impose four days of the jail term is not an abuse of discretion.
{¶41} Appellant’s second assignment of error is overruled.
CONCLUSION
{¶42} Appellant’s two assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Family Court Division is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.