I respectfully dissent from the decision of the majority. Defendant-Appellant Ralph Collins' failure to re-enlist in the United States Air Force may have operated to prevent Plaintiff-Appellee, Selena Collins, from eventually receiving the share of Defendant-Appellant's military pension the court had awarded her. However, the court abused its discretion when, upon a finding of contempt, it ordered Defendant-Appellant to pay Plaintiff-Appellee the value of the share that was "lost" to her because of his failure to re-enlist.
Domestic relations courts possess full equitable powers and jurisdiction appropriate to the determination of domestic relations matters. R.C. 3105.011. A court that grants a decree of divorce must equitably divide the marital property of the parties. R.C. 3105.171(B). Per division (A)(3)(a)(i) and (ii) of that section, marital property means all real and personal property and any interest therein that either of the spousescurrently owns or currently has and that was acquired by either or both during the marriage, including retirement benefits. Because the property or the interest therein must be ownedcurrently, the court may not make a property division award that is contingent on the happening of a future event. Zimmie v.Zimmie (1984), 11 Ohio St.3d 94.
In its decree of divorce, the court awarded each of the parties the same "fractional share of the retirement benefits of the other" from their respective military pensions. It is undisputed that when the award was made Defendant-Appellant Ralph Collins' right to a military pension had not vested. It was, therefore, a mere expectancy, one that was contingent on his completion of additional years of service. Defendant-Appellant then had no enforceable interest, legal or equitable, in the pension or property. Therefore, and because his expectation of a pension was not property or an interest therein which Defendant-Appellant currently had or owned at the time of divorce, it was not subject to division as marital property. Zimmie,supra. The trial court erred when it awarded a fractional share of whatever military pension benefit Defendant-Appellant might someday receive to Plaintiff-Appellee as her share of the parties' marital property. Id., Plaintiff-Appellant did not prosecute the trial court's error on an appeal from the decree of divorce. Therefore, he has waived his right to re-litigate that error here. His waiver of his appellate rights in that regard does not resolve the question presented, however. That question is whether, upon Plaintiff-Appellee's prosecution of a contempt claim and the finding of contempt that it made, the court should have ordered Defendant-Appellant to compensate Plaintiff-Appellee *Page 908 for her loss, when it was one resulting from an order to which she was not entitled and which the court should not have made.
The court possessed the necessary jurisdiction of the parties and of the subject-matter when it entered the property division order. Plaintiff-Appellant was not entitled to violate its terms because it was beyond the court's authority to issue. Walker v.City of Birmingham (1967), 398 U.S. 307, 87 S.Ct. 1824,18 L.Ed.2d 1210. Unless and until it was reversed on appeal, his failure to obey the order is punishable as contempt, both civil and criminal.United States v. United Mine Workers of America (1947),330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.
Whether a contempt is classified as civil or criminal depends on its dominant purpose. If the dominant purpose is to punish the contemnor for disobedience of the court's order, the adjudication of contempt is criminal. If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication is civil. In re Martorano (1975), 464 Pa.66, 346 A.2d 22.
Judicial sanctions in civil contempt may be employed to coerce the contemnor to perform an act which the court ordered. It may also take the form of compensation, forcing the contemnor to indemnify the plaintiff for any loss caused by the contemnor's conduct. United States v. United Mine Workers of America, supra;McDonald's Corp. v. Victory Investments (1984), 727 F.2d 82. A money judgment is the only alternative when the court can no longer secure for the plaintiff the conduct to which he is entitled. Remedies, American Casebook Series, 1985 Ed., at p. 128.
Violations of an order are punishable as criminal contempt even though the order is set aside on appeal. United States v.United Mine Workers of America, supra:
It does not follow, of course, that simply because a defendant may be punished for criminal contempt for disobedience of an order later set aside on appeal, that the plaintiff in the action may profit by way of a fine imposed in a simultaneous proceeding for civil contempt based upon a violation of the same order. The right to remedial relief falls with an injunction which events prove was erroneously issued, . . . and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court.
Id., 330 U.S., at 294-295, 91 L.Ed., at 913. Stated otherwise:
The general rule is that whether a contempt judgment survives the avoidance of an underlying order depends on the nature of the contempt decree. If the contempt is criminal it stands; if it is civil it falls.
Latrobe Steel Co. v. United Steelworkers of America (1976), 545 F.2d 1336, 1342. Consistent with that doctrine, "a private party should not profit as the *Page 909 result of an order to which a court determines, in retrospect, he was never entitled." Id., at p. 1346.
In the context of United States v. United Mine Workers ofAmerica, supra, an order is "beyond the jurisdiction" of the court when the court lacked authority to grant the relief which the order involves.
Fortenbury v. Superior Court (1940), 16 Cal.2d 405, 407."The term jurisdiction originally included only the right to hear and determine concerning the subject matter in a particular case. But the modern tendency has been to broaden that meaning . . . A court may have jurisdiction of the cause of action and of the parties, but it may lack the authority or power to act in the case except in a particular way. Under such circumstances, it is now generally held that the court had no jurisdiction."
In Ohio, the jurisdiction of the courts of common pleas and their divisions is fixed by legislative enactment. Article IV, Section 4, Ohio Constitution. Thus the trial court's authority to divide marital property is governed by R.C. 3105.171. If the court makes a property division order that is manifestly contrary to or exceeds the authority it is granted, the order is beyond the jurisdiction of the court. A party who disobeys the order may be punished for criminal contempt. The adverse party affected by the contempt may not, however, profit by way of a fine imposed in a simultaneous proceeding for civil contempt based on the same violation. United States v. United Mine Workers of America,supra. Latrobe Steel Col v. United Steel Workers of America,supra.
The trial court exceeded its jurisdiction when it divided as marital property Defendant-Appellant's expectancy in a pension, which per Zimmie, supra, was a mere contingent right and not property or an interest therein that either party currently owned or had. R.C. 3105.171(A)(3)(a). Therefore, the court abused its discretion when subsequently it awarded Plaintiff-Appellee a money judgment to compensate her for her lost share in an action for contempt that she prosecuted, allowing her to profit as the result of an order to which she was not entitled.
Two additional factors should also be addressed.
First, before either the compensatory or coercive aspects of a court's civil contempt power can be brought into play, there must first have been "an operative command capable of `enforcement.'" International Longshoreman's Ass'n. Local 1291 v.Philadelphia Marine Trade Assoc. (1967), 389 U.S. 64, 74,88 S.Ct. 201, 206, 19 L.Ed.2d 236. Even if the court's property division award is found to imply a command that Defendant-Appellant re-enlist in the Air Force and remain a member until his pension vests, that form of command is one not capable of enforcement. "Relief of that character has always been regarded as impracticable, and as an invasion of one's natural liberty, involuntary servitude *Page 910 being prohibited by the constitution." Lundoff-Bicknell Co. v.Smith (1927), 24 Ohio App. 294, 301.
Second, and with reference to a suggestion in Judge Brogan's opinion, I do not agree that the court could have retained jurisdiction to order Defendant-Appellant to pay Plaintiff-Appellee the value of the share of his pension that she never will receive because of his failure to re-enlist. Such an award would constitute a modification of the prior property division award. Modification of property division awards is expressly prohibited by R.C. 3105.171(I). Once marital property is allocated, awards are final and the court does not have continuing jurisdiction to modify an award in the nature of a property settlement. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399.
The court could not have retained jurisdiction to modify its prior property division order as it did. That is not to say that the court could not have subsequently ordered division of a pension that it properly divided by way of a qualified domestic relations order, or "QDRO." Such an order is in aid of relief which the court has granted. Tarbert v. Tarbert (September 27, 1996), Clark App. No. 96-CA-0036, unreported. It is not a modification of that relief, and cannot be. Id. Further, where relief is not properly granted, as it was not here when the court divided the parties' pensions, a QDRO cannot correct the error involved.
The court ordered Defendant-Appellant to compensate Plaintiff-Appellee as a way to purge himself of the criminal contempt which the court found, for which he was ordered to serve thirty days in jail. The criminal contempt might stand if the court finds, as it apparently did, that Defendant-Appellant's purpose when he failed to re-enlist was to prevent the relief that the court had ordered. In re Davis (1991), 77 Ohio App.3d 257. Further, the criminal contempt survives any infirmities in the underlying order. United States v. United Mine Workers ofAmerica, supra. However, for the reasons I have explained, the compensation alternative which the court ordered should be vacated. I would reverse, in part, to do that.
This is not to say that Plaintiff-Appellee is wholly without recourse. The trial court also divided her expected military pension. In view of Defendant-Appellant's conduct, it may no longer be equitable that the court's order dividing Plaintiff-Appellee's pension have prospective effect. Plaintiff-Appellee may seek to vacate the court's order pursuant to Civ.R. 60(B)(4).
I would reverse and modify the trial court's order to vacate the compensation alternative which the court ordered as a method by which Defendant-Appellant may purge himself of the contempt which the court found. *Page 911