Cordes v. Cordes

2024 Ohio 3435

• Court: Ohio Court of Appeals
• Decided: September 6, 2024
• Docket: 2024CA00012
• Status: Published

Opinion

[Cite as Cordes v. Cordes, 2024-Ohio-3435.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

ERIK CORDES, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : PAIGE CORDES nka WEAVER, : Case No. 2024CA00012 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2020 DR 00920

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 6, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ARNOLD F. GLANTZ JAMES J. ONG 2722 Whipple Ave NW 201 North Main Street Canton, Ohio 44718 Uhrichsville, Ohio 44683 Stark County, Case No. 2024CA00012 2

Baldwin, J.

{¶1} The appellant, Paige Cordes nka Weaver, appeals the decision of the trial

court finding her in contempt of court. The appellee is Erik Cordes.

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellant and appellee were divorced after a four-year marriage in an

August 20, 2021, Judgment Entry Decree of Divorce (“Decree.”) The Decree required the

appellant to refinance the marital home or list it for sale by May 22, 2022; the Decree

provided further that if no one bought the home within 90 days it be sold at auction.

Specifically, the Decree stated:

The parties agree the Wife, shall refinance on or before May 22,

2022, and shall retain the property located at 4910 Parkhaven Avenue NE.,

Canton, OH 44709, pay the mortgage and tax assessments and shall be

responsible for utilities upon said premises and maintaining the property

and shall hold Husband absolutely harmless thereon. The parties further

agree that the Wife shall pay $2,500.00 in early 2022 from her tax refund

for her portion of the equity, and $10,000.00 additional upon refinancing, for

a total of $12,500.00.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, shall the

Wife not be able or refinance the real estate located at 4910 Parkhaven

Avenue NE., Canton, OH 44709, by May 22, 2022, then the property shall

be listed for sale for 90 days. If the property is not sold in 90 days, then Kiko

Auction to be ordered to auction said property and the proceeds divided

equally. Stark County, Case No. 2024CA00012 3

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that

Husband shall cooperate with documents to refinance and Forbearance

Program.

(Emphasis original.) In addition, the Decree stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the

parties shall retain any and all vehicles currently in their possession and will

become solely obligated for all payments due or which may become due for

the use, operation, maintenance and financing thereof, and the Wife shall

hold the Husband harmless thereon.

(Emphasis original.) Thus, the Decree also required the appellant to be responsible for

making timely payments on the vehicle that was in her possession.

{¶3} The appellee became aware that the appellant was not making timely car

payments as required by the Decree, which negatively impacted him financially. As a

result, he filed a Motion to Show Cause on November 17, 2021, in which he asked the

trial court to hold the appellant in contempt for failing to make said payments. The record

reflects some difficulty in getting the appellant served with the Motion.

{¶4} On January 11, 2022, the appellant filed a Motion for Contempt in which

she alleged that the appellee failed and/or refused to sign and submit loan modification

paperwork regarding loan on the home and was therefore in contempt of court.

{¶5} On January 25, 2022, the trial court issued a Magistrate’s Order setting the

matter for pretrial on March 16, 2022. On March 16, 2022, the trial court issued a

Judgment Entry setting the matter for trial on June 2, 2022. Stark County, Case No. 2024CA00012 4

{¶6} On May 17, 2022, the appellee filed an Amended Motion to Show Cause in

which he argued that the appellant not only failed to make any car payments since May

of 2021 as required by the Decree, causing him financial hardship, but also failed to pay

him $2,500.00 in early 2022 from her tax refund related to the equity in the home as per

the Decree. The trial court issued a Judgment Entry ordering the appellant to appear in

court on June 2, 2022, to show cause why she should not be held in contempt.

{¶7} On June 3, 2022, the trial court issued a Judgment Entry in which it found

that the appellant agreed that she was in contempt; that she owed the sum of $750.00 as

and for outstanding attorney fees to the appellee’s attorney for the cost of pursuing the

contempt; and, that she owed $1,024.00 as and for two missed car payments, to be paid

directly to the appellee. The appellant withdrew her contempt allegations against the

appellee.

{¶8} The trial court ordered that the appellant was sentenced to jail for thirty days

with an imposition of sentence/compliance review hearing set for December 7, 2022. The

court ordered further that the appellant was to pay the car payments on a timely, monthly

basis, and was to pay the loan modification payments on a timely, monthly basis. The

court specifically defined the term “timely” as “when they are due or prior to the due date

which will avoid the imposition of a late fee assessment.” The court stated that once the

appellant made the required payments for a period of twelve (12) consecutive months the

contempt would be purged. Finally, the court ordered the appellant to make monthly

payments of $250.00 to the appellee starting on July 15, 2022, toward the outstanding

attorney fees and reimbursement fees for the missed car payments. Stark County, Case No. 2024CA00012 5

{¶9} The trial court held an imposition hearing on December 7, 2022, during

which it found that the appellant’s payments were being made. The court ordered that no

further dates were needed; that the thirty (30) day jail sentence was suspended upon

conditions being met as set forth in the June 3, 2022, Entry; and, that the purge conditions

remained.

{¶10} On June 8, 2023, the appellee filed a Motion to Show Cause against the

appellant due to her failure to refinance the house or, in the alternative, list the home for

sale. In addition, the appellee filed a Motion to Set Imposition Date for the appellant for

her failure to comply with the Decree. The trial court scheduled the matter for hearing on

October 16, 2023.

{¶11} The hearing proceeded as scheduled, and on October 20, 2023, a

Magistrate’s Decision was issued by the trial court. In her Decision, the Magistrate held

the appellant in contempt for failing to abide by the Decree’s “clear” requirement that she

refinance or list the marital home for sale by May 22, 2022. The appellant opposed

contempt, arguing that the appellee stalled the loan modification process. The Magistrate,

after hearing the testimony of the parties and reviewing the evidence, determined that the

appellant’s allegation was not true because the appellee signed the necessary paperwork

and, in any case, it did not alter the fact that the house was to be listed for sale if she

could not refinance within the specified time. The Magistrate therefore sentenced the

appellant to sixty (60) days in jail but ordered her to “immediately list the house for sale

and adhere to the court orders contained in the divorce decree for next steps if the house

is not sold within 90 days.” Stark County, Case No. 2024CA00012 6

{¶12} In addition, the Magistrate found that the appellant had failed to “make her

car payments when they were due.” The Magistrate rejected the appellant’s argument

that the payments were still timely as long as she made them within the grace period and

therefore avoided late fees, since the trial court had previously defined “timely payments”

to be on or before the due date.

{¶13} The Magistrate scheduled a hearing on November 7, 2023, to impose

sentence for the appellant’s failure to make timely car payments and to follow up

regarding the appellant’s compliance with the court’s order to immediately list the marital

home for sale. However, the November 7, 2023, hearing did not go forward because the

appellant filed Written Objections to October 20, 2023, Magistrate’s Decision.

{¶14} The trial court conducted a hearing on November 21, 2023, on the

appellant’s Objections, and heard arguments from the parties. Based upon that hearing,

and a review of the transcript of the October 16, 2023, hearing before the Magistrate, as

well as the June 3, 2022 Judgment Entry, the trial court overruled the appellant’s

objections and approved and adopted the Magistrate’s Decision.

{¶15} The appellant filed a timely appeal in which she sets forth the following three

assignments of error:

{¶16} “I. THE LOWER COURT ERRED IN DETERMINING THAT THE

APPELLANT HAD FAILED TO SATISFY PURGE CONDITIONS ESTABLISHED

THROUGH THE JUNE 2, 2022 JUDGMENT ENTRY.”

{¶17} “II. THE LOWER COURT ERRED AS A MATTER OF LAW BY FINDING

THAT APPELLANT WAS IN CONTEMPT OF COURT FOR FAILING TO LIST THE

MARITAL RESIDENCE FOR SALE.” Stark County, Case No. 2024CA00012 7

{¶18} “III. IN THE EVENT A FINDING OF CONTEMPT WAS IN FACT PROPER,

THEN THE LOWER COURT ERRED BY FAILING TO AFFORD APPELLANT THE

OPPORTUNITY TO PURGE THE CONTEMPT FINDING.”

{¶19} The appellant submits that the trial court erred in approving and adopting

the Magistrate’s Decision. We disagree.

STANDARD OF REVIEW

{¶20} The appellant’s assignments of error are interrelated, and as such we

address them together.

{¶21} An appellate court’s standard of review regarding a finding of contempt is

limited to a determination of whether the trial court abused its discretion. Sloat v. James,

2009-Ohio-2849, (5th Dist.) ¶ 19. In order to find an abuse of discretion, we must

determine that the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

{¶22} The burden of proof in a civil contempt action is proof by clear and

convincing evidence. Sloat, supra, at ¶ 20. The determination of “clear and convincing

evidence” is within the discretion of the trier of fact. Id. The trial court's decision should

not be disturbed as against the manifest weight of the evidence if the decision is

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

Co., 54 Ohio St.2d 279 (1978). A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidenced submitted before the trial court. Geary v. Geary, 2015-Ohio-259 (5th Dist.). Stark County, Case No. 2024CA00012 8

ANALYSIS

{¶23} In its review of the Magistrate Decision, the trial court considered that the

Magistrate heard testimony and reviewed evidence presented at the October 16, 2023,

show cause hearing, and was in the best position to ascertain the veracity of the parties.

The Magistrate found that the appellant had failed to obey the Decree’s “clear”

requirement that she refinance or list the marital home for sale by May 22, 2022. In

addition, the Magistrate determined that the appellant’s allegation that the appellee stalled

the loan modification process was not true since the appellee signed the necessary

paperwork. The Magistrate further found that it did not alter the fact that the house was

to be listed for sale if she could not refinance within the specified time.

{¶24} The Magistrate also found that the appellant had failed to “make her car

payments when they were due.” The Magistrate rejected the appellant’s argument that

the payments were still timely as long as she made them within the grace period and

therefore avoided late fees, since the trial court had previously defined “timely payments”

{¶25} The trial court conducted a hearing on the appellant’s Objections to the

Magistrate’s Decision, and heard arguments from the parties. In addition, the trial court

reviewed the transcript of the October 16, 2023, hearing before the Magistrate, as well as

the record, including the Magistrate’s Decision and the June 3, 2022 Judgment Entry. We

therefore find that the trial court did not act unreasonably, arbitrarily, or unconscionably,

and therefore did not abuse its discretion, when it found the Magistrate properly

determined by clear and convincing evidence that the appellant was in contempt of court.

Furthermore, in light of the evidence before the trial court, we cannot say that the trial Stark County, Case No. 2024CA00012 9

court abused its discretion in finding that the appellant had failed to satisfy the purge

conditions set forth in the June 2, 2022, Judgment Entry, and in finding the appellant in

contempt of court for failing to list the marital residence for sale. Finally, we cannot say

that the trial court abused its discretion when it did not afford the appellant the opportunity

to purge the October 20, 2023, contempt finding in light of the appellant’s continued failure

to abide by the terms of the Decree and previous opportunities to purge for the same

actions.

CONCLUSION

{¶26} Based upon the foregoing, we find that the appellant’s assignments of error

numbers one, two and three are without merit, and are overruled. The judgment of the

Stark County Court of Common Pleas, Family Court Division is hereby affirmed.

By: Baldwin, J.

Wise, John, P.J. and

King, J. concur.