Ferguson v. Van Boron

[Cite as Boron v. Boron, 2018-Ohio-69.]
STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

KORENA BORON FERGUSON ) CASE NO. 15 CO 0030
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
ERIC VAN BORON )
)
DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Columbiana County, Ohio
Case No. 2009-DR-0585

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Atty. Anne S. Margyaros
The Gallery Building
516 E. Washington St.
Chagrin Falls, Ohio 44022

For Defendant-Appellee: Atty. Christopher A. Maruca
The Maruca Law Firm, LLC
201 East Commerce Street
Suite 316
Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Stephen A. Yarbrough, of the Sixth District Court of Appeals, sitting by
assignment. (Retired)
Dated: January 5, 2018
[Cite as Boron v. Boron, 2018-Ohio-69.]
WAITE, J.

{¶1} This is an appeal of the denial of a motion for contempt regarding the

real and personal property division in a 2013 divorce decree. Appellant Korena

Boron Ferguson appeals the judgment of the Columbiana County Court of Common

Pleas overruling her motion for contempt against Appellee Eric Boron. Appellant filed

a show cause motion in this matter on July 25, 2013, contending Appellee should be

held in contempt for failing to transfer real and personal property which had been the

subject of the final decree of divorce. Appellee filed a competing contempt motion on

September 9, 2013, alleging Appellant failed to return his personal property pursuant

to the same divorce decree. After three days of hearings, the trial court overruled

both parties’ motions, finding that both possessed unclean hands and contributed to

the contempt of the other party by their own conduct. The record reveals the trial

court did not abuse its discretion in overruling Appellant’s motion based upon the

unclean hands doctrine and the conduct of the parties. The judgment of the trial

court is affirmed.

Factual and Procedural History

{¶2} The parties were married on August 16, 1996 and had no children.

They obtained a decree of divorce on June 10, 2013. The parties had a long and

acrimonious history. Germane to this appeal, the final divorce decree set forth a

number of rights and obligations of both parties relative to the real and personal

marital property. The parties owned a number of parcels of real estate during the

marriage as well as a great deal of personal property, all of which had painstakingly

been addressed in the final decree. The real estate relevant to this appeal includes
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the marital home located at 2164 Pearce Circle, Salem, Ohio (“Pearce Circle”);

vacant land at 1074 Highway 25, Menlo, Iowa (“Iowa property”); Pure Gold Stables at

3225 and 3228 State Route 45, Salem, Ohio (“Pure Gold”); and a condominium at

1319 Pembrooke Drive #C, Salem, Ohio (“Pembrooke”).

{¶3} On July 25, 2013, Appellant filed her first show cause motion

requesting, among other things, that Appellee be held in contempt for (1) failing to

deliver a quit claim deed to Appellant transferring three parcels into her name; (2)

failing to transfer utilities on Pembrooke over to Appellant for uninterrupted service;

(3) failing to execute a cognovit note and mortgage deed in the amount of $590,000;

(4) failing to provide Appellant with paperwork to transfer her interest in relevant real

estate parcels; (5) failing to pay homeowner fees, utilities and taxes on Pembrooke;

and (6) failing to relinquish his interest in the Stifel Nicolaus retirement account.

{¶4} On September 9, 2013, Appellee filed a motion to show cause for

Appellant’s failure to transfer the Pure Gold parcel to him and failure to return

Appellee’s motorcycle.

{¶5} The first hearing was held on November 19, 2013. Appellant testified

regarding the allegations in her motion. Appellant asserted that she was able to

enter the Pembrooke property before the divorce trial with an appraiser in order to

ascertain the value of the property for rental purposes. Appellant testified that at the

time it needed only general cleaning and that no one was living in the condominium.

Appellant testified that she was not given keys to the property nor was a quit claim

deed for this property drafted by Appellee in a timely manner. Appellant testified that
 -3-

she finally gained access to this property in October of 2013. She immediately noted

damage to the property, including that it emanated a strong smell of cat urine, water

was running from the upstairs shower, there was no electric or gas service, and the

washer and dryer were missing. Appellant testified about the repairs and cleanup

she had performed on the property in order to prepare it for sale or rental.

{¶6} Regarding the taxes, mortgage and note, Appellant contended Appellee

had failed to pay real estate taxes that were due on any of the marital real estate up

to April 18, 2013, and that she paid the real estate taxes in order to avoid

delinquency. Appellant testified that the mortgages presented by Appellee were

several months late and contained multiple errors. As a result, she could not sign off

on the mortgages. In addition, Appellant testified that the cognovit note to be

executed by Appellee in favor of Appellant was also late and contained multiple

errors, including that the total amount was set forth as $500,015 when the final

divorce decree ordered that the amount of the note was to be $590,000. Finally,

Appellant testified that Appellee had not executed the requisite documents to transfer

her portion of the retirement account.

{¶7} Appellant filed an amended show cause motion on March 20, 2014,

alleging that Appellee had committed additional violations of the decree while the

earlier matters were pending before the trial court. In addition to the allegations in

the July 25, 2013 show cause motion, Appellant alleged that Appellee contracted to

sell the starting gate from the stables as part of a sale of the Pure Gold property.

This gate was Appellant’s personal property, and she incurred attorney fees in order
 -4-

to negotiate a return of the gate from the proposed buyers of the property. Appellant

also listed a number of debts that Appellee failed to pay as required by the decree,

including: electric, plumbing, condo association fees and real estate taxes on the

subject parcels.

{¶8} Two additional hearings on the motions were held on June 20, 2014

and October 6, 2014. At the June 20, 2014 hearing, Appellant testified that

Appellee’s motorcycle had been located on the back deck of the Pembrooke property

during the marriage and that it had remained there until Appellee picked it up just

prior to the hearing. Appellant stated that she paid the outstanding taxes on the Iowa

property as well as the second half of the 2012 real estate taxes on the Ohio

properties to prevent delinquency. Appellant also testified about discovering that the

sale of the Pure Gold Ranch included sale of the starting gate, which was to be

retained by Appellant. She testified that she was forced to hire legal counsel to get

back the gate once it was sold by Appellee. On cross-examination, Appellant

admitted that she waited more than ten months before attempting to regain this gate.

{¶9} On cross-examination, Appellee admitted that he signed a purchase

agreement for the Pure Gold property that included the starting gate prior to the

previous hearing without Appellant’s knowledge and while her name remained on the

deed. Appellee also testified that he still owed real estate taxes on the properties

and that he did not cooperate in transferring the Pembrooke property’s utilities to

Appellant. Appellee also testified that he took the washer and dryer from the

Pembrooke property.
 -5-

{¶10} The third and final hearing was held on October 6, 2014. Appellee

testified on direct examination that he had paid the outstanding electric and plumbing

bills. On cross-examination, Appellee acknowledged that all of the real estate taxes

had been paid but that he had no proof regarding which delinquent real estate taxes

had been paid by him and which by Appellant. Appellee also acknowledged that the

divorce decree did not specify that Appellant was to deliver his motorcycle. Appellee

also acknowledged that he never gave Appellant keys to the Pembrooke property

and that there were defects with the quit claim deed his counsel originally presented

to Appellant for execution. Appellant then presented expert testimony by Attorney

Virginia Barborak regarding the legal fees she incurred related to both the contempt

action and negotiation for the return of the starting gate.

{¶11} A magistrate’s decision was issued on November 6, 2014. The

magistrate determined that neither party had clean hands when they filed their

respective contempt motions and overruled these motions. The magistrate also

ordered each party to pay their own attorney fees. Appellant filed a motion for

findings of fact and conclusions of law on November 13, 2014. Appellee filed

objections to the magistrate’s decision on November 20, 2014. The court ordered

both parties to file proposed findings of fact and conclusions of law and the

magistrate issued a decision on January 21, 2015, again concluding that both parties

had unclean hands and overruling all of the contempt motions. On January 30, 2015,

Appellant filed her objections to the magistrate’s decision. On October 23, 2015, the
 -6-

trial court issued a final judgment entry, adopting the decision of the magistrate.

Appellant filed the instant appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF

UNCLEAN HANDS TO BAR APPELLANT RELIEF WHEN THERE

WAS A LEGAL REMEDY AVAILABLE TO APPELLEE (CONTEMPT),

WHERE SHE WAS NOT GUILTY OF REPREHENSIBLE,

UNCONSCIONABLE CONDUCT AND WHERE ANY PERCEIVED

CONDUCT HAD NO RELATIONSHIP WITH THE CONTEMPT

ALLEGATIONS.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN FAILING TO FIND APPELLEE IN

CONTEMPT AND/OR THAT HE FAILED TO COMPLY WITH THE

COURT'S ORIGINAL ORDERS.

{¶12} In Appellant’s first and third assignments of error she contends the trial

court erred in applying the “clean hands” doctrine and in failing to hold Appellee in

contempt.

{¶13} An appellate court will not reverse a trial court’s judgment regarding

contempt absent an abuse of discretion. State ex rel. Ventrone v. Birkell, 65 Ohio

St.2d 10, 11, 417 N.E.2d 1249 (1981). An abuse of discretion involves more than an

error of judgment; it implies that the court’s attitude is unreasonable, unconscionable,
 -7-

or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶14} Contempt proceedings can be either civil or criminal, although the

proceedings themselves are sui generis. Brown v. Executive 200, Inc., 64 Ohio St.2d

250, 253, 416 N.E.2d 610 (1980). In civil contempt, the purpose of punishment is to

coerce the contemnor to obey a judicial order for the benefit of a third party. Carroll

v. Detty, 113 Ohio App.3d 708, 711, 681 N.E.2d 1383 (1996). In a civil contempt

action the contemnor is said to “carry the keys of his prison in his own pocket * * *

since he will be freed if he agrees to do as ordered.” Pugh v. Pugh, 15 Ohio St.3d

136, 139, 472 N.E.2d 1085 (1984), quoting Brown at 253. The burden of proof for

the moving party in a civil contempt action is clear and convincing evidence. Carroll

at 711. Once the moving party establishes a prima facie case of contempt, the

burden shifts to the nonmoving party to establish a defense. Morford v. Morford, 85

Ohio App.3d 50, 55, 619 N.E.2d 71 (1993). The nonmoving party must prove any

defense by a preponderance of the evidence. Jeffers v. Jeffers, 7th Dist. No. 07 BE

36, 2008-Ohio-3339, at ¶ 15.

{¶15} In the instant case, Appellant contends Appellee violated a number of

the provisions contained within the parties’ divorce decree, necessitating a finding of

contempt against him. For his part, Appellee argues that the trial court did not err in

failing to hold either party in contempt. Although multiple provisions of the divorce

decree provided a source of animosity, both parties used the provisions essentially
 -8-

as a weapon with which to aggravate the other. However, the parties ultimately fully

complied with the decree and a finding of contempt was not warranted.

{¶16} The parties’ final divorce decree, entered after protracted litigation,

evinced an attempt to thoroughly address each aspect of the parties’ divorce and to

anticipate and avoid the kind of battle in which the parties seem to nevertheless find

themselves embroiled. Appellant raised a number of issues in both her original and

amended show cause motions where she alleged Appellee had failed to comply with

the divorce decree. At the three hearings, Appellant presented testimony and

evidence that Appellee had either failed to comply or failed to comply in a timely

manner with his duties and obligations under the decree. Appellant also sought to

recover attorney fees incurred in pursuing resolution of the issues surrounding

Appellee’s alleged contempt.

{¶17} Appellee filed his own show cause motion alleging that Appellant

should be found in contempt for failing to return his motorcycle and for failing to

execute a quit claim deed to transfer the Pure Gold real estate. Appellee provided

testimony at hearing on those issues. Appellee has not appealed the trial court’s

judgment entry regarding the denial of his own motion to show cause.

{¶18} The trial court was not persuaded by any of the parties’ arguments and,

after three separate hearing dates, elected to overrule all motions, citing both parties’

unclean hands in the matter. The trial court concluded that through their own

individual actions, the parties exacerbated the issues raised in the contempt motions.
 -9-

The “clean hands doctrine” of equity requires that whenever a party

takes the initiative to set into motion the judicial machinery to obtain

some remedy but has violated good faith by [her] prior-related conduct,

the court will deny the remedy.

Bean v. Bean, 14 Ohio App.3d 358, 363-364, 471 N.E.2d 785 (12th Dist.1983).

{¶19} A movant cannot obtain relief if the movant’s own conduct is

reprehensible. Marinaro v. Major Indoor Soccer League, 81 Ohio App.3d 42, 45, 610

N.E.2d 450 (1991). The movant’s conduct “must constitute reprehensible, grossly

inequitable, or unconscionable conduct, rather than mere negligence, ignorance, or

inappropriateness.” Wiley v. Wiley, 3d Dist. No. 9-06-34, 2007-Ohio-6423, at ¶ 15.

In order to bar a movant’s claims, the movant must be at fault in relation to the

nonmovant and in relation to the subject matter on which the movant’s claims are

based. Trott v. Trott, 10th Dist. No. 01 AP-852, 2002-Ohio-1077.

{¶20} In Marinaro, the court held that the movant had engaged in

reprehensible conduct by taking bribes to intentionally lose soccer games. Id. at 45.

The court concluded that his unclean hands would bar him from enjoining the league

from suspending him, even if the suspension was imposed in a manner that did not

completely comply with the collective bargaining agreement. Id.

{¶21} Here, the magistrate’s decision dated November 6, 2014 noted:

The Court specifically finds that neither party had clean hands when

they filed their contempt motions. All motions for Contempt are

therefore OVERRULED. Each party shall pay their own attorney fees.
 -10-

Id. at p. 2.

{¶22} In the November 6, 2014 entry the magistrate did not specifically

delineate the manner in which each party had unclean hands as it pertained to each

alleged contempt, but noted:

For a variety of reasons, neither party chose to promptly complete the

tasks necessary to fulfill their obligations under the divorce decree.

Deeds and mortgages were not promptly prepared, signed or delivered

by either party. [Appellee] did not cooperate in turning over ownership

of the condo to [Appellant]. [Appellant] did not cooperate in turning over

the motorcycle to [Appellee]. Counsel exchanged numerous

correspondences regarding the exchange of assets, and the parties

remained at a standoff. Neither party wanted to be the first to comply,

so neither party complied. It was the classic standoff with neither party

showing any willingness to blink.

The only good news is that by the last hearing date on these Motions

(November 6, 2014) both parties were in substantial compliance with

the terms of the final decree. All real estate had been transferred; Pure

Gold had been sold; [Appellee’s] total spousal support obligation was

paid in full; [Appellant] had possession of the condo; [Appellee] had

possession of the motorcycle, and all debts are paid.

Id. at pp. 1-2.
 -11-

{¶23} Appellee filed objections to the magistrate’s decision on November 20,

2014. Appellee contended the magistrate erred in ordering Appellee to reimburse

Appellant for Iowa real estate taxes because the taxes were paid as of the date of the

April 2013 final divorce hearing.

{¶24} Before filing her own objections, Appellant filed a request for findings of

fact and conclusions of law and the trial court ordered the parties to submit proposed

findings and conclusions pursuant to Civ.R. 53(D)(3)(ii). On January 21, 2015 the

magistrate issued a decision containing findings of fact and ordering that the

“Conclusions of Law remain as set forth in the Magistrate’s Decision and Judgment

Entry filed on November 6, 2014.” (1/21/15 Mag. Dec., p. 4.) The trial court adopted

the magistrate’s decision on the same day, January 21, 2015.

{¶25} Appellant filed objections to the January 21, 2015 magistrate’s decision

on the basis that the court: (1) failed to prepare proper findings of fact and

conclusions of law; (2) erred in failing to hold Appellee in contempt; (3) erred in

finding Appellant had not complied with the divorce decree; (4) erred in finding the

attorneys had communicated but did not coordinate the transactions needed to

complete obligations under the decree; and (5) erred in finding Appellant was

required to remove the starting gate from the Pure Gold property.

{¶26} A non-oral hearing on both parties’ objections was set for May 29,

2015. In its final judgment entry dated October 23, 2015, the trial court addressed all

of the objections. Regarding Appellant’s argument that the magistrate simply

referred to the previous conclusions of law contained in the November 6, 2014
 -12-

magistrate’s decision, the court held that there was “substantial compliance” with the

civil rules when the magistrate’s decisions of November 6, 2014 and January 21,

2015 were considered in totality with the entire trial court record.

{¶27} Regarding the magistrate’s finding that both parties had failed to comply

with the terms of the divorce decree before the judgment entry was even filed, the

final hearing where the agreement was read into the record occurred on April 30,

2013, but the judgment entry was not filed and time stamped until June 10, 2013.

The court concluded that by this date, the parties had already failed to comply with

various provisions. The magistrate observed that the divorce decree “clearly

obligates [Appellant] to make available to [Appellee] a 1998 Yamaha V Star

Motorcycle (Motorcycle) within fourteen days of April 18, 2013.” (10/23/15 J.E., p. 5.)

Despite multiple letters and attempts to recover the motorcycle, Appellant refused to

make the motorcycle available and testified that she had not contacted Appellee

about the motorcycle or allowed him to pick it up. The court noted that Appellant

admitted she had thrown away motorcycle rims and other personal property

belonging to Appellee, contrary to the terms of the divorce decree. Based on these

two infractions, the trial court concluded that Appellant violated the decree.

{¶28} Regarding attorney communication, the court held that the parties’

attorneys failed to communicate about the parties’ obligations under the decree.

Although Appellant testified that she was not aware of communications by her

attorney on her behalf, and her counsel stated that she did not receive certain

communications, the court stated that these were included in her file and that “certain
 -13-

documents had been prepared and/or recorded by co-counsel for [Appellant]” but

because of the lack of communication, Appellant’s counsel was unaware of these

documents. (10/23/15 J.E., p. 7.) The court concluded that the failure of counsel to

communicate effectively resulted in a failure to timely complete the matters required

under the decree.

{¶29} Appellant also objected to the magistrate’s finding that Appellant failed

to cooperate and that the parties were at a standoff. The court held:

[Appellant] did not make the Motorcycle available to [Appellee] and she

disposed of his personal property. The record also supports that the

parties were at a standoff. Due to the lack of communication and

cooperation from [Appellant], [Appellee] reciprocated. [Appellee] did

not communicate or cooperate with [Appellant] regarding the keys to

the Pembrooke condominium or transferring the utilities into her name.

[Appellee] did not discuss with [Appellant] the insurance he had

obtained on Pure Gold. [Appellant] incurred the cost of changing the

locks at the Pembrooke condominium for reasons including that she

never asked [Appellee] for the keys and because she failed to respond

to the letters from counsel for [Appellee] about the Motorcycle.

(10/23/15 J.E., p. 8.)

{¶30} Appellant objected to the magistrate’s failure to address each of her

allegations of contempt. The court noted that the magistrate had considered all the

evidence and testimony before him. Appellant did not have clean hands due to her
 -14-

conduct regarding the motorcycle and Appellee’s personal property, and Appellee did

not have clean hands because of his failure to cooperate or communicate regarding

the Pembrooke property keys, transferring the Pembrooke utilities, or obtaining

insurance on the Pure Gold property. The court noted that as neither party had clean

hands, the magistrate was not required to further address the contempt motions.

{¶31} Regarding Appellant’s objection about the starting gate at Pure Gold,

the trial court acknowledged that it had been awarded to Appellant in the divorce, but

observed that she waited several months before attempting to retrieve it. There was

no evidence that Appellee attempted to remove it or prevent her from taking the

starting gate. The court concluded Appellant knew Appellee had the right to

negotiate a sale of the Pure Gold property, and there was no evidence that Appellee

purposely included the gate in the terms of sale. In fact, Appellee had communicated

to his counsel that Appellant could pick it up prior to the sale. Appellee did not

secretly sell the gate or withhold the sale proceeds from Appellant. It was also noted

that Appellant ultimately negotiated a sale price and sold the starting gate to the

buyer of Pure Gold for $5000, which was her asking price. (10/23/15 J.E., p. 10.)

The court concluded it was Appellant’s conduct that led to the starting gate’s

inclusion in the sale of Pure Gold because she failed to promptly claim her property.

Based on this, the court concluded her unclean hands prevent Appellant from

recovering attorney fees.

{¶32} Regarding Appellant’s objection to the real estate expenses and

obligations for the various Ohio parcels and the Iowa parcel, the trial court concluded
 -15-

the language in the decree was “confusing” and the parties’ counsel disagreed on its

meaning.

{¶33} Article Seven of the decree contains agreed language relating to debts,

and provides:

Husband shall be solely responsible for and indemnify Wife for any and

all debts associated with the horses (Article Five), real estate

expenses/obligations (Article Eight) including but not limited to any and

all real estate taxes for first half of 2012 (and payable in 2013) for all

real property including Pearce Circle, Pembroke [sic], Pure Gold,

Pennsylvania properties and Iowa, all condominium or homeowners

association fees through April 18, 2013, any debt owed to Ellyson

Plumbing and Jillian Electric, and all business liabilities, taxes, debts,

obligations (Article Six).

(6/10/13 J.E., p. 15.)

{¶34} While the court agreed that the language of the agreement

unambiguously required Appellee to pay the debts and obligations as specified, the

agreement “does not include a specific date or time by which payment must be

made.” (10/23/15 J.E., p. 13.)

{¶35} In Article Nine of the decree, Appellant was to retain the Iowa and the

Pembrooke properties following divorce. Regarding the taxes and utilities, the

language reads, “[w]ife shall be solely responsible for any and all utilities, real estate
 -16-

taxes, homeowners/hazard insurance from April 18, 2013 forward.” (6/10/13 J.E., p.

17.)

{¶36} The court noted that although the decree contains a date certain for the

commencement of duties and obligations (April 18, 2013), it does not require the

parties to perform any of the duties or obligations at issue by an established

deadline. Further, both parties took advantage of the lack of a deadline by failing to

act in a timely manner. Therefore, the court reasoned that Appellant’s arguments

Appellee failed to perform by a certain deadline were not well founded and Appellant

failed to establish by clear and convincing evidence that Appellee was in contempt.

{¶37} We must note that the court incorrectly stated the decree did not

contain a deadline for performance. Article Nine, relating to the transfer of the Iowa

and Pembrooke properties to Appellant by Appellee, was to be completed within

thirty days of April 18, 2013. Similarly, Appellee was to ensure that the utilities for

Pembrooke were transferred to Appellant within thirty days of April 18, 2013. Finally,

in exchange for Appellant executing a quit claim deed for the Pure Gold property,

Appellee was to execute a cognovit promissory note and mortgage deed to Appellant

in the amount of $590,000. Final payment on the note was due and owing no later

than October 18, 2014. Thus, the decree did contain specific deadlines and dates for

performance which were not adhered to. Most of these dates fell before the parties’

final decree was even filed. The court clearly weighed Appellee’s failure to perform,

here, with Appellant’s failure to timely remove the starting gate from the Pure Gold

property, make Appellee’s motorcycle available to him, and her disposal of Appellee’s
 -17-

personal property. While the decree did not provide a date by which Appellant was to

remove her gate from the Pure Gold property and there was no provision obligating

Appellant to deliver the motorcycle, the court was not dealing with true “one for one”

bad behavior of the parties. However, a reviewing court does not reweigh evidence

of this nature and a trial court has great discretion in this area.

{¶38} Regarding the failure by Appellee to timely execute a cognovit note and

mortgage on the Pure Gold property as well as his failure to execute and deliver quit

claim deeds for the Iowa, Pembrooke and Pearce Circle properties, the trial court

concluded Appellee was not in contempt. Utilizing the clean hands doctrine, the trial

court stated: “There is a connection between the conduct of [Appellant] and the

claimed failures of [Appellee]. One cannot be viewed without the other.” (10/23/15

J.E., p. 15.) In addition to the fact that the parties did not communicate, the court

noted that Appellant did not sign the quit claim deed to the Pure Gold property

presented to her, did not communicate and cooperate regarding the motorcycle’s

return and disposed of some of Appellee’s personal property. Hence, she came into

the contempt proceedings with unclean hands. Similarly, the trial court concluded

that Appellee’s failure to transfer the Pembrooke utilities and the keys to the

Pembrooke property, as well as failing to timely deliver deeds to the Iowa,

Pembrooke and Pearce Circle properties also showed that he did not come into the

contempt proceedings with clean hands. The trial court reasoned that both parties’

conduct in effect cancelled each other out, precluding a finding of contempt for either

party.
 -18-

{¶39} As noted, the clean hands doctrine, as it is known, dictates that where a

party’s own conduct is reprehensible, grossly inequitable, or unconscionable, that

party is not entitled to recover in a contempt proceeding. Wiley, supra, at ¶ 15.

{¶40} This record does reflect that both parties acted in a manner intended to

thwart and agitate the other and further complicate an already acrimonious

relationship. Appellee’s misconduct was directly contrary to the timelines and

dictates of the decree and Appellee presented no evidence to justify his failure to act

in a timely manner. Appellee admitted that real estate taxes were due and owing on

the properties and he had not made payment prior to the final contempt hearing.

(6/20/14 Tr., p. 45.) Appellant presented evidence that the mortgage and cognovit

note presented by Appellee in November of 2013, prior to the first contempt hearing,

did not comply with the court’s order, as it contained a reservation of mineral rights,

listed the wrong address and secured only $500,015, rather than the $590,000

required in the decree. (11/19/13 Tr., pp. 32, 66.) Finally, the quit claim deed for the

Pure Gold property presented by Appellee to Appellant was defective in that it listed

the wrong county and state, contained an incorrect address and included a

reservation of mineral rights. (11/19/13 Tr., pp. 31-32.)

{¶41} The record does show that the trial court’s reference to Appellant’s

failure to sign the deeds presented to her in a timely fashion cannot be deemed

misconduct where the deeds were defective. Moreover, the trial court’s reference to

Appellant’s failure to communicate and cooperate regarding the motorcycle does not,

standing alone, appear to rise to contemptible behavior. Evidence at the hearing
 -19-

showed, however, that Appellant deliberately failed to respond to letters from

Appellee’s attorney regarding exchanging the motorcycle for keys to the Pembrooke

properties. While Appellant’s conduct regarding the motorcycle is not directly tied to

the transfer of real estate and payment of real estate taxes by Appellee, both parties

deliberately used the tools at their disposal to cause hardship to the other. The clean

hands doctrine applies, here, and the court has wide discretion in determining

matters of contempt. The trial court did not abuse its discretion in overruling the

contempt motions under this doctrine. Appellant’s first and third assignments of error

are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN FAILING TO ADDRESS EACH

PRONG OF APPELLANT'S MOTIONS TO SHOW CAUSE/MOTION

FOR CONTEMPT.

{¶42} In her second assignment of error Appellant contends the trial court

erred in failing to address all of the assertions in her motion for contempt.

{¶43} The purpose of civil contempt is to ensure the dignity of the courts and

the fair administration of justice. Pugh, supra, at 139. As noted, the party bringing an

action for contempt has the burden of producing clear and convincing evidence of

contempt by the other party. Id.

{¶44} A review of the trial court’s judgment entry reveals that each of

Appellant’s concerns regarding contempt were addressed, either individually or

collectively. Utilizing the clean hands doctrine as noted above, the trial court stated
 -20-

in addressing each issue raised by Appellant’s objections that it was Appellant’s own

conduct as well as the conduct of Appellee that lead to its decision. The court also

took note of the fact that all outstanding issues under the decree had been

substantially completed by the final hearing in this matter to determine that a

contempt finding was not warranted. Appellant’s second assignment of error is

without merit and is overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN FAILING TO ORDER APPELLEE TO

PAY DAMAGES AS A RESULT OF HIS FAILURES TO COMPLY

WITH THE FINAL DECREE INCLUDING ATTORNEY FEES AND

EXPENSES.

{¶45} In her fourth assignment of error, Appellant contends the trial court

erred in failing to order Appellee to pay damages for violating the divorce decree,

including her expenses and attorney fees.

{¶46} Appellant sought reimbursement for real estate taxes, insurance,

utilities, condo fees, repairs to Pembrooke, rental revenue lost and attorney fees

associated with the contempt action.

{¶47} The parties’ divorce decree provided for damages in various contexts

for failure to comply. Article Seven and Article Seventeen of the parties’ separation

agreement, incorporated into the decree, provides language as to indemnification for

Appellee’s default in paying the debts listed. Article Seven concerns real estate

expenses/obligations, including real estate taxes for first half of 2012; real estate
 -21-

taxes for all other real property owned by the parties; all condo and homeowners

association fees through April 18, 2013; and plumbing and electric debts. The court

concluded that Appellant’s contention she was entitled to reimbursement for paying

real estate taxes that were Appellee’s obligation was not established by clear and

convincing evidence.

Indemnity shifts the entire loss from one who has been compelled to

make payment to the plaintiff to another who is deemed responsible for

reimbursing the full amount. The right to indemnity exists when the

relationship between the parties requires one to bear the loss for the

other. This right may arise from common law, contract, or in some

cases, statutes.

Portsmouth Insurance Agency v. Medical Mutual of Ohio, 188 Ohio App.3d 111,

2009-Ohio-941, 934 N.E.2d 940, ¶ 16 (4th Dist.). Indemnity agreements are

interpreted in the same manner as other contracts. Id. at ¶ 18. The true nature of an

indemnity relationship is determined by the intent of the parties expressed within the

language of the agreement. Id.

{¶48} The parties’ agreed language provided that Appellee was solely

responsible, and was to indemnify Appellant, for real estate taxes incurred on all of

the parties’ properties through April 18, 2013, including any and all real estate taxes

from the first half of 2012. (6/10/13 J.E., p. 15.) Appellant had the burden of

presenting evidence that she paid real estate taxes that were the sole responsibility

of Appellee. The trial court concluded that Appellant failed to meet that burden. At
 -22-

the first of the three contempt hearings, Appellant testified that the real estate taxes

on the properties had not yet been paid. Appellant requested that the trial court order

Appellee to pay the taxes due. (11/19/13 Tr., pp. 26-27.) At the second hearing,

Appellant testified that she paid the real estate taxes for the second half of 2012, and

presented copies of tax bills showing payment of delinquent taxes for the second half

of 2012 with the first half remaining due. Appellant sought reimbursement for the

taxes she had paid and payment for the first half of 2013, as Appellee had failed to

transfer the properties to her by that time. (6/20/14 Tr., pp. 6-8). However, as the

court noted, Appellee was only responsible for the real estate taxes through the first

half of 2012, which were payable in 2013. Therefore, Appellant’s request for

reimbursement for taxes incurred the second half of 2012 and beyond was contrary

to the language of the separation agreement. Appellant also failed to demonstrate

that she had paid any condominium association fees or other related expenses on

the properties before April 18, 2013. Appellee’s responsibility under the decree

ended on that date. Therefore, the trial court did not abuse its discretion in finding

Appellant was not entitled to reimbursement under the indemnity provision of the

decree.

{¶49} In Article Seventeen there appears a clause entitled “Costs Upon

Default/Damages” which reads:

If either the Husband or the Wife should default in the performance of

any term or provision of this Agreement, the purpose of the agreement

would be frustrated. It is each party’s intent that neither should be
 -23-

required to incur any expenses associated with the enforcement of his

or her rights under this agreement because the cost/expense thereof

would substantially detract from the benefits intended for each of them.

Therefore, if the non-defaulting party deems it necessary to engage

counsel and/or institute legal proceedings to effect or compel

performance of any provision of the Agreement, in such event the Court

hearing such proceeding may in its discretion award reasonable

attorney fees for all legal services rendered to and on behalf of such

complaining party relating thereto including but not limited to those

incurred to initiate such proceeding and those incurred with respect to

pre-proceeding and post-proceeding legal services. The parties shall

make documented efforts to gain the other’s compliance prior to

incurring any legal fees.

In addition, the parties agree that either party that defaults and is found

in contempt of court in the performance of any obligation set forth in the

Agreement shall pay all “damages” associated with said default.

“Damages”, as the term is used herein and elsewhere in this

Agreement, shall mean all loss associated with the party’s default

including but not limited to liability, expenses, taxes, charges, principal,

interest, court costs, penalties, and legal fees both in defense of any

action and in prosecution of any action.
 -24-

In addition, the parties agree that each party shall fully indemnify the

other for all obligations that they are responsible to perform as set forth

in this Agreement. Nothing contained in this Article shall be construed

as a release of any obligation of either party as set forth in the

Agreement.

(6/10/13 J.E., pp. 21-22.)

{¶50} Appellant sought damages for utilities, repairs and condo fees relating

to the Pembrooke property for Appellee’s failure to transfer the property by the

deadline contained in the decree. Appellant seeks: (1) repair costs to the condo, as

she alleges it was left in disrepair and Appellee failed to promptly transfer the

property to her; (2) payment for all insurance, condo fees, taxes and utility expenses

for the time period in which she was awaiting transfer of the property; (3) payment for

rental revenues lost as a result of Appellee’s failure to timely execute the deed to

Pembrooke; and (4) attorney fees and expenses incurred as a result of Appellee’s

failure.

{¶51} At hearing, Appellant testified that she brought in an appraiser to

assess the rental value of the Pembrooke property prior to the divorce. She stated

that when she finally obtained access to the property in September of 2014, she

immediately noticed the smell of cat urine and that the washer and dryer were

missing, the upstairs shower was running, and the gas and electric service had been

turned off. (11/19/13 Tr., pp. 13-17.) She testified that the carpets had to be

replaced, the cement flooring underneath resealed, the furnace repaired and the
 -25-

washer and dryer replaced. (11/19/13 Tr., pp.14-17.) Appellant presented evidence

of damages, including $1,684.96 for repair of the flooring and replacement of

carpeting, repair of the heating unit in the amount of $840.52, and condo association

fees of $530 for the months of May through August of 2013 because she alleges she

did not have access to the property. Appellant also seeks reimbursement for real

estate taxes for the six months she allegedly could not use the property and a loss of

rental value at $575 per month for the five months she claims she was denied access

to the property, totaling $2,875.00.

{¶52} The trial court concluded Article Seventeen provides that only a

nondefaulting party may recover damages, and that Appellant was also in default of

portions of the decree by her own conduct. Further, the trial court concluded

Appellant presented no evidence of her efforts to gain compliance before incurring

attorney fees, and that her own unclean hands prevent her from recovering any

damages under the terms of the separation agreement.

{¶53} Looking to the language utilized by the parties in the agreed portion of

the decree, it is clear that the parties intended to be unambiguous in setting forth the

terms for obtaining damages for default. The acrimonious nature of the years-long

divorce followed by a multi-day trial evidenced a need for such language in the event

of default. The definition of “damages” within the decree is broad, but not all

encompassing. There is no provision for lost rental payments. Similarly, the

Pembrooke washer and dryer are personal property belonging to Appellee, and this

language cannot be used to recover alleged damage for loss.
 -26-

{¶54} Appellant’s first motion to show cause was filed just a few weeks after

the journalization of the decree, leaving little doubt that not much communication or

effort at obtaining compliance was made by Appellant before seeking redress in the

courts. As noted, she provided no evidence of the efforts made to seek compliance

from Appellee with regard to the areas in which she sought relief. Without reaching

out in a good faith attempt to resolve the issues, and sitting idly by while tax bills

became delinquent and property began to fall into disrepair, Appellant cannot with

clean hands seek redress within the courts.

{¶55} Regarding Appellant’s assertion that she is entitled to recover attorney

fees incurred in pursuing her contempt action, Article Seventeen specifies that

attorney fees may be awarded in any action for contempt at the court’s discretion.

Any trial court may, within its discretion, include an award of attorney fees as part of

costs taxable to a party found in civil contempt. Planned Parenthood Assoc. of

Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 67, 556 N.E.2d 157 (1990).

{¶56} Appellant provided expert testimony at hearing from Attorney Virginia

Barborak regarding the reasonableness of the attorney fees she incurred in pursuing

her contempt action. Appellant asserts that her attempts to obtain compliance prior

to seeking redress in court were many and lengthy, but does not refer to any

evidence in the record to support such a claim, nor was any evidence of her attempts

to obtain compliance prior to filing her show cause motion presented at hearing.

Again, it is telling that Appellant filed her show cause motion just weeks after the
 -27-

journalization of the divorce decree. We cannot conclude based on the record before

us that the trial court abused its discretion in failing to award Appellant attorney fees.

{¶57} Thus, the record reflects that the trial court did not err in denying

Appellant damages. Appellant’s fourth assignment of error is without merit and is

overruled.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT'S FINDINGS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶58} In her fifth assignment of error, Appellant contends the trial court’s

judgment is against the manifest weight of the evidence. Appellant provides a list of

instances in her appellate brief where she essentially disagrees with the trial court’s

findings on a number of evidentiary issues.

{¶59} As noted, a trial court’s decision in a contempt proceeding will not be

disturbed absent an abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio

St.2d 10, 11, 417 N.E.2d 1249 (1981). The trial court is in the best position to judge

the credibility of testimony because it can observe the witness’s gestures and voice

inflections. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273

(1984). A reviewing court will not reverse a trial court’s factual findings that are

supported by some competent, credible evidence. C.E. Morris Constr. Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

{¶60} The Ohio Supreme Court has defined “contempt of court” as

“disobedience of an order of a court. It is conduct which brings the administration of
 -28-

justice into disrespect, or which tends to embarrass, impede or obstruct a court in the

performance of its functions.” Windham Bank v. Tomaszcyk, 27 Ohio St.2d 55, 271

N.E.2d 815 (1971), paragraph one of the syllabus.

{¶61} “Weight of the evidence concerns the ‘inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. In

considering a challenge to the manifest weight of the evidence, the reviewing court

weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in the evidence the trial

court clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered. In re A.S., 7th Dist. No. 11 JE

29, 2012-Ohio-5468, ¶ 10.

{¶62} In weighing the evidence, a reviewing court must be mindful of the

presumption in favor of the finder of fact. Id. In determining whether the trial court's

decision is manifestly against the weight of the evidence, “every reasonable

intendment and every reasonable presumption must be made in favor of the

judgment and the finding of facts.” Eastley at ¶ 21. “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.” Id.

{¶63} The record contains a variety of instances of bad faith and misconduct

on the part of both parties, including Appellant. She failed to return Appellee’s
 -29-

property, disposed of property, and failed to communicate regarding completion of

tasks pursuant to the decree. The evidence presented demonstrated that several

letters were sent to Appellant through her counsel in order to attempt to complete

certain transactions, although it is also clear that Appellee also willfully dragged his

feet in completing required tasks.

{¶64} Appellant did not communicate with Appellee regarding the status of his

motorcycle or his other personal property. Appellee filed his own contempt motion

regarding the status of the motorcycle, which the trial court also overruled. Appellant

disposed of Appellee’s personal property without attempting to communicate with

Appellee about this property. Counsel for both parties proved ineffectual in assisting

the parties in communicating during this time period and between the hearing dates

on the pending contempt motions. Although Appellant presented testimony from

Attorney Barborak regarding attorney fees, there was no evidence that Appellant

made attempts at obtaining compliance before seeking redress, as required in the

decree. Although Appellant complained about the sale of her starting gate, she failed

to collect her property for a period of several months and her dilatory action

contributed to the inclusion of the gate in the sale of the Pure Gold property.

Appellant did not present evidence that demonstrated Appellee committed waste or

destruction of the Pembrooke property to warrant recovery for damages. The trial

court ultimately held that, as both parties had unclean hands, the contempt motions

were overruled. Appellant disagrees with the factual findings made by the trial court

based on the evidence the parties presented, and with the legal conclusions the court
 -30-

draws. A review of the record reveals that the trial court, after three separate hearing

dates with testimony from both parties and the submission of all evidence,

painstakingly went through the record and determined that unclean hands precluded

either party from recovering for contempt. The trial court was well within its discretion

in deciding that Appellee should not be held in contempt for his actions. As such, the

judgment of the trial court was not against the manifest weight of the evidence.

Appellant’s fifth assignment of error is without merit and is overruled.

{¶65} In conclusion, the parties, through their poor and intentionally

antagonistic behavior, reached a stalemate in which each appeared to be

unwavering in their refusal to cooperate with even the agreed terms of their own

divorce decree. The parties behaved obstinately with little to no communication

between counsel on any issues. While it is clear that Appellee did not comply with all

of his duties and obligations, by the third hearing, both parties had finally complied,

albeit much later than required. It is also clear that the parties and their counsel had

a difficult time reaching any sort of agreement on basic communication, let alone

adhering to the terms of the divorce decree. As such, we cannot conclude the trial

court abused its discretion in overruling all of the parties’ show cause motions. The

judgment of the trial court is hereby affirmed.

Donofrio, J., concurs.

Yarbrough, J., concurs.