[Cite as Bostick v. Bostick, 2015-Ohio-455.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
MARJORIE E. BOSTICK : : Plaintiff-Appellee : C.A. CASE NO. 2014-CA-22 : v. : T.C. NO. 11DR246 : CHARLES I. BOSTICK : (Civil appeal from Common Pleas : Court, Domestic Relations) Defendant-Appellant : :
...........
OPINION
Rendered on the ___6th___ day of ____February______, 2015.
JULIA L. LEVERIDGE, Atty, Reg. No. 0072440, 88 West Mound Street, Columbus, Ohio 43215 Attorney for Plaintiff-Appellee
DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200, Urbana, Ohio 43078 Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Charles I. Bostick appeals a decision of the Champaign
County Court of Common Pleas, Domestic Relations Division, finding that he failed to
purge an earlier order of the trial court finding him in contempt for failure to pay his
spousal support order and ordering him to serve a thirty-day jail sentence. Charles filed -2- a timely notice of appeal with this Court on July 2, 2014.
{¶ 2} After a marriage lasting approximately twenty-one years, the trial court
entered the parties’ final judgment and decree of divorce on July 16, 2013. The divorce
decree included an order requiring Charles to pay plaintiff-appellee Marjorie E. Bostick
spousal support in the amount of $3,000.00 per month. Charles appealed the decision
of the trial court, and we affirmed the spousal support award in an opinion issued on
February 28, 2014. Bostick v. Bostick, 2d Dist. Champaign No. 2013-CA-32,
2014-Ohio-736 (hereinafter “Bostick I”).
{¶ 3} On October 30, 2013, Marjorie filed a motion for contempt against Charles
alleging non-payment of the spousal support order. After several continuances granted
to both parties, a contempt hearing was held before the trial court on February 26, 2014.
Charles did not attend the contempt hearing. Although Charles did not attend the
hearing, he was represented by counsel who argued on his behalf. The trial court
subsequently found Charles in contempt for failing to pay spousal support to Marjorie as
ordered in the divorce decree but deferred determination of his sentence until a hearing
on March 26, 2014.
{¶ 4} Charles was present at the hearing on March 26, 2014, during which the trial
court sentenced him to thirty days in jail with the opportunity to purge the contempt order
by performing a certain condition on or before a hearing scheduled on July 1, 2014,
specifically, paying the spousal support arrearage owed to Marjorie. In order to purge
the contempt order, Charles was required to pay Marjorie the following amounts:
$5,000.00 by April 20, 2014; an additional $5,000.00 by May 20, 2014; and thereafter,
$3,000.00 per month plus court costs. It is undisputed that as of July 1, 2014, Charles -3- had only paid Marjorie $1,000.00 towards the arrearage. Charles did not appeal from
the contempt order of February 26, 2014, nor did he appeal from the trial court’s
imposition of a thirty-day jail sentence on March 26, 2014, if he failed to purge the
contempt.
{¶ 5} Nevertheless, Charles was present with his attorney at the July 1, 2014,
purge hearing, wherein the trial court found that he had not purged the contempt and
ordered him to serve thirty days in jail, as originally ordered. As previously discussed,
Charles filed a timely notice of appeal from the trial court ‘s decision finding that he failed
to purge the contempt and imposing a jail sentence. Upon Charles’ motion, we granted a
stay of the imposition of the jail sentence pending the outcome of the appeal.
{¶ 6} Charles’ appeal is now properly before us.
{¶ 7} Charles’ sole assignment of error is as follows:
{¶ 8} “THE TRIAL COURT ERRED IN IMPOSING A THIRTY (30) DAY JAIL
SENTENCE FOR CONTEMPT OF COURT ON DEFENDANT, WHERE DEFENDANT
WAS NOT ALLOWED TO PRESENT EVIDENCE OF HIS INABILITY TO PURGE
CONTEMPT.”
{¶ 9} In his sole assignment, Charles contends that the trial court erred when it
imposed a thirty day jail sentence in light of his failure to purge the contempt order by July
1, 2014. Specifically, Charles argues that the trial court erred when it refused to allow
him to present evidence at the purge hearing regarding his inability to pay the arrearage
and monthly spousal support award to Marjorie.
{¶ 10} Recently, in Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979
N.E.2d 297, the Ohio Supreme Court addressed whether a defendant subjected to civil -4- contempt for failure to comply with his child support obligations had a right to counsel at
the purge hearing. Id. In concluding that the defendant had no right to counsel, the Ohio
Supreme Court relied on the differences between a contempt hearing and a purge
hearing. Id. The Liming court stated that “the question of contempt is decided at a
contempt hearing, where an alleged contemnor ‘will have had the opportunity to defend
against the contempt charges and otherwise object to or appeal from a finding of
contempt and any purge conditions.’ ” (Emphasis added.) The Docks Venture, L.L.C. v.
Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 20,
citing Liming, at ¶ 30. “But at a purge hearing, ‘the propriety of the contempt finding or
the purge conditions is not in question.’ ” Id. Rather, the purge hearing is limited to
determining whether the contemnor complied with the condition imposed for purging the
contempt. Id.
{¶ 11} A court order finding a party in contempt and imposing a sentence
conditioned on the failure to purge is a final appealable order on the issue regarding
whether the party is in contempt of court. Docks Venture, at ¶ 23. The “contemnor may
have an additional appeal on the question of whether the purge conditions have been met
following execution of sentence on the failure to purge.” Id.
{¶ 12} In the instant case, Charles’ contempt hearing was held on February 26,
2014. Although he was represented by counsel, Charles did not personally attend the
hearing wherein he was held in contempt for failure to pay spousal support as ordered in
the parties’ final judgment and decree of divorce. Because Charles failed to attend the
contempt hearing, the trial court scheduled a second hearing on March 26, 2014, in order
to impose a sentence upon Charles for being found in contempt. Charles was present -5- for the sentencing hearing and represented by counsel. At the March 26, 2014, hearing,
it was determined that Charles would be given the opportunity to purge his contempt by
paying Marjorie the existing spousal support arrearage by July 1, 2014, or serve a
thirty-day jail sentence.
{¶ 13} Pursuant to the decision in Liming, Charles had the opportunity at the
hearings on February 26, 2014, and March 26, 2014, “to defend against the contempt
charges and otherwise object to or appeal from a finding of contempt and any purge
conditions.” Id. at ¶ 30. The trial court’s decision on March 26, 2014, was a final
appealable order. The record of the hearings establish that Charles did not object to the
contempt order nor the purge conditions imposed by the trial court. More importantly,
Charles failed to appeal from the trial court’s contempt order and the purge conditions.
By failing to appeal the trial court’s contempt order and purge conditions, Charles waived
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[Cite as Bostick v. Bostick, 2015-Ohio-455.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
MARJORIE E. BOSTICK : : Plaintiff-Appellee : C.A. CASE NO. 2014-CA-22 : v. : T.C. NO. 11DR246 : CHARLES I. BOSTICK : (Civil appeal from Common Pleas : Court, Domestic Relations) Defendant-Appellant : :
...........
OPINION
Rendered on the ___6th___ day of ____February______, 2015.
JULIA L. LEVERIDGE, Atty, Reg. No. 0072440, 88 West Mound Street, Columbus, Ohio 43215 Attorney for Plaintiff-Appellee
DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200, Urbana, Ohio 43078 Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Charles I. Bostick appeals a decision of the Champaign
County Court of Common Pleas, Domestic Relations Division, finding that he failed to
purge an earlier order of the trial court finding him in contempt for failure to pay his
spousal support order and ordering him to serve a thirty-day jail sentence. Charles filed -2- a timely notice of appeal with this Court on July 2, 2014.
{¶ 2} After a marriage lasting approximately twenty-one years, the trial court
entered the parties’ final judgment and decree of divorce on July 16, 2013. The divorce
decree included an order requiring Charles to pay plaintiff-appellee Marjorie E. Bostick
spousal support in the amount of $3,000.00 per month. Charles appealed the decision
of the trial court, and we affirmed the spousal support award in an opinion issued on
February 28, 2014. Bostick v. Bostick, 2d Dist. Champaign No. 2013-CA-32,
2014-Ohio-736 (hereinafter “Bostick I”).
{¶ 3} On October 30, 2013, Marjorie filed a motion for contempt against Charles
alleging non-payment of the spousal support order. After several continuances granted
to both parties, a contempt hearing was held before the trial court on February 26, 2014.
Charles did not attend the contempt hearing. Although Charles did not attend the
hearing, he was represented by counsel who argued on his behalf. The trial court
subsequently found Charles in contempt for failing to pay spousal support to Marjorie as
ordered in the divorce decree but deferred determination of his sentence until a hearing
on March 26, 2014.
{¶ 4} Charles was present at the hearing on March 26, 2014, during which the trial
court sentenced him to thirty days in jail with the opportunity to purge the contempt order
by performing a certain condition on or before a hearing scheduled on July 1, 2014,
specifically, paying the spousal support arrearage owed to Marjorie. In order to purge
the contempt order, Charles was required to pay Marjorie the following amounts:
$5,000.00 by April 20, 2014; an additional $5,000.00 by May 20, 2014; and thereafter,
$3,000.00 per month plus court costs. It is undisputed that as of July 1, 2014, Charles -3- had only paid Marjorie $1,000.00 towards the arrearage. Charles did not appeal from
the contempt order of February 26, 2014, nor did he appeal from the trial court’s
imposition of a thirty-day jail sentence on March 26, 2014, if he failed to purge the
contempt.
{¶ 5} Nevertheless, Charles was present with his attorney at the July 1, 2014,
purge hearing, wherein the trial court found that he had not purged the contempt and
ordered him to serve thirty days in jail, as originally ordered. As previously discussed,
Charles filed a timely notice of appeal from the trial court ‘s decision finding that he failed
to purge the contempt and imposing a jail sentence. Upon Charles’ motion, we granted a
stay of the imposition of the jail sentence pending the outcome of the appeal.
{¶ 6} Charles’ appeal is now properly before us.
{¶ 7} Charles’ sole assignment of error is as follows:
{¶ 8} “THE TRIAL COURT ERRED IN IMPOSING A THIRTY (30) DAY JAIL
SENTENCE FOR CONTEMPT OF COURT ON DEFENDANT, WHERE DEFENDANT
WAS NOT ALLOWED TO PRESENT EVIDENCE OF HIS INABILITY TO PURGE
CONTEMPT.”
{¶ 9} In his sole assignment, Charles contends that the trial court erred when it
imposed a thirty day jail sentence in light of his failure to purge the contempt order by July
1, 2014. Specifically, Charles argues that the trial court erred when it refused to allow
him to present evidence at the purge hearing regarding his inability to pay the arrearage
and monthly spousal support award to Marjorie.
{¶ 10} Recently, in Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979
N.E.2d 297, the Ohio Supreme Court addressed whether a defendant subjected to civil -4- contempt for failure to comply with his child support obligations had a right to counsel at
the purge hearing. Id. In concluding that the defendant had no right to counsel, the Ohio
Supreme Court relied on the differences between a contempt hearing and a purge
hearing. Id. The Liming court stated that “the question of contempt is decided at a
contempt hearing, where an alleged contemnor ‘will have had the opportunity to defend
against the contempt charges and otherwise object to or appeal from a finding of
contempt and any purge conditions.’ ” (Emphasis added.) The Docks Venture, L.L.C. v.
Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 20,
citing Liming, at ¶ 30. “But at a purge hearing, ‘the propriety of the contempt finding or
the purge conditions is not in question.’ ” Id. Rather, the purge hearing is limited to
determining whether the contemnor complied with the condition imposed for purging the
contempt. Id.
{¶ 11} A court order finding a party in contempt and imposing a sentence
conditioned on the failure to purge is a final appealable order on the issue regarding
whether the party is in contempt of court. Docks Venture, at ¶ 23. The “contemnor may
have an additional appeal on the question of whether the purge conditions have been met
following execution of sentence on the failure to purge.” Id.
{¶ 12} In the instant case, Charles’ contempt hearing was held on February 26,
2014. Although he was represented by counsel, Charles did not personally attend the
hearing wherein he was held in contempt for failure to pay spousal support as ordered in
the parties’ final judgment and decree of divorce. Because Charles failed to attend the
contempt hearing, the trial court scheduled a second hearing on March 26, 2014, in order
to impose a sentence upon Charles for being found in contempt. Charles was present -5- for the sentencing hearing and represented by counsel. At the March 26, 2014, hearing,
it was determined that Charles would be given the opportunity to purge his contempt by
paying Marjorie the existing spousal support arrearage by July 1, 2014, or serve a
thirty-day jail sentence.
{¶ 13} Pursuant to the decision in Liming, Charles had the opportunity at the
hearings on February 26, 2014, and March 26, 2014, “to defend against the contempt
charges and otherwise object to or appeal from a finding of contempt and any purge
conditions.” Id. at ¶ 30. The trial court’s decision on March 26, 2014, was a final
appealable order. The record of the hearings establish that Charles did not object to the
contempt order nor the purge conditions imposed by the trial court. More importantly,
Charles failed to appeal from the trial court’s contempt order and the purge conditions.
By failing to appeal the trial court’s contempt order and purge conditions, Charles waived
his right to dispute the propriety of the contempt order, as well as the purge conditions
ordered by the court.
{¶ 14} The only issue at the hearing on July 1, 2014, pertained to whether Charles
performed the court-ordered conditions necessary to purge his contempt. It is
undisputed that Charles only paid Marjorie $1,000.00 towards the spousal support
arrearage by July 1, 2014. Thus, the trial court properly found that Charles failed to
satisfy his purge conditions. The purge hearing was not the proper venue for Charles to
introduce evidence regarding his inability to pay the court-ordered spousal support
obligation. The time for presenting evidence on his inability to pay expired when Charles
failed to appeal the trial court’s decision finding him in contempt and imposing purge
conditions. Any issue regarding his inability to pay became res judicata at that point. -6- The only remaining issue was whether Charles paid Marjorie the spousal support he
owed in order to purge the contempt finding. He did not. Accordingly, the trial court did
not abuse its discretion when it refused to allow Charles to introduce evidence of his
inability to pay the spousal support obligation at the purge hearing and ordered him to
serve a thirty days in jail.
{¶ 15} Charles’ sole assignment of error is overruled.
{¶ 16} Charles’ sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
..........
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Julia L. Leveridge Darrell L. Heckman Hon. Lori L. Reisinger