[Cite as Haren v. Haren, 2012-Ohio-2161.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
NANCY JO HAREN JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellant/Cross-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00221 GARY C. HAREN
Def.-Appellee/Cross-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2007 DR 01298
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: May 14, 2012
APPEARANCES:
For Plaintiff-Appellant/Cross-Appellee For Defendant-Appellee/Cross-Appellant
DAVID S. AKE ROSEMARY G. RUBIN 101 Central Plaza South THE VICTORIAN PROFESSIONAL BLDG. Suite 600 1435 Market Avenue North Canton, Ohio 44702 Canton, Ohio 44714 Stark County, Case No. 2011 CA 00221 2
Wise, J.
{¶1} Appellant/Cross-Appellee Nancy Haren appeals the decision of the Stark
County Court of Common Pleas, Domestic Relations Division, which found her in
contempt of court following her divorce from Appellee/Cross-Appellant Gary Haren. The
relevant facts leading to this appeal are as follows.
{¶2} Appellant/Cross-Appellee Nancy Haren and Appellee/Cross-Appellant
Gary Haren were married on September 25, 1981.1 Two children were born as issue of
that marriage: J.H., born in 1990, and K.H., born in 1991.
{¶3} On October 23, 2007, Nancy filed a complaint for divorce. Gary filed an
answer and counterclaim on November 1, 2007.
{¶4} The matter proceeded to a divorce trial on June 2, 2008. At the time of the
trial, the parties' older child had become emancipated. The chief issues disputed by the
parties were spousal support, the allocation of the marital residence, and the disposition
of the household goods and furniture. Testimony was adduced at trial that Nancy was
an X-ray technologist and had earned $49,086.72 in 2007, while Gary had received
$14,508.00 in Social Security disability benefits in 2007. Testimony was also presented
at trial that Nancy had a pension valued at $47,000.00, while Gary’s pension was
valued at $12,049.00.
{¶5} A judgment entry/decree of divorce was initially filed on September 18,
2008. The trial court ordered no spousal support to either party. The court further
1 In order to avoid confusion as to the identity of the parties, particularly in light of the existence of two prior appeals involving this case, we will hereinafter refer to the parties by their respective first names. Stark County, Case No. 2011 CA 00221 3
awarded the marital residence to Nancy, and additionally ordered that the parties'
marital assets and liabilities would be divided as per a particular trial exhibit.
{¶6} Gary thereupon filed a direct appeal from the divorce decree to this Court,
raising issues regarding the division of marital property, allocation of marital debts
(including attorney fees), and the lack of spousal support. On October 19, 2009, we
reversed the trial court’s decision on several bases and remanded the case. See Haren
v. Haren, 184 Ohio App.3d 722, 2009-Ohio-5652 (“Haren I”).
{¶7} After the remand, the trial court on June 7, 2010 again issued a judgment
entry/decree of divorce. Among other things, the trial court awarded Gary spousal
support in the amount of $400.00 per month for 100 months, subject to the death of
either party or Gary’s remarriage. Nancy was awarded the marital residence. The trial
court also ordered Nancy to pay an equalization payment of $43,738.50. The court also
ruled that if Nancy was unable to obtain the funds, she would be required to put the
marital residence on the market for sale.2 Following the issuance of the new decree,
Nancy appealed, while Gary filed a notice of cross-appeal. On February 22, 2011, we
affirmed the decision of the trial court, with a separate concurrence by Judge Hoffman.
See Haren v. Haren, Stark App.No. 2010CA00162, 2011-Ohio-891 (“Haren II”).
{¶8} On April 11, 2011, Gary filed a contempt motion against Nancy, alleging
that she had not complied with the orders for division of marital property and had
delayed paying spousal support. The matter proceeded to an evidentiary hearing before
a magistrate on August 10, 2011. The magistrate found Nancy to be guilty of contempt
2 The parties entered into a subsequent agreement in September 2010 that Nancy could also seek refinancing of the marital residence as a means of obtaining the equalization payment funds. Stark County, Case No. 2011 CA 00221 4
for her failure to pay the spousal support in a timely fashion. The magistrate did not find
Nancy in contempt regarding the payment of the $43,738.50. However, she made
orders requiring Nancy to complete her mortgage loan application prior to November 15,
2011 and to pay Gary the equalization sum no later than December 31, 2011. The
magistrate also ordered a date certain for Gary to pick up his personal property and
attached a list indicating what property he would be entitled to. The magistrate also
ordered Nancy to pay a lump sum purge amount of $5,600.00 on or before December
31, 2011 on the spousal support arrearages. The magistrate did not, however, award
attorney fees to Gary for the finding of contempt. She also declined to award interest on
the $43,738.50.
{¶9} Each side thereafter filed objections to the magistrate’s decision. The trial
court reviewed the objections and conducted a hearing on October 3, 2011. On October
4, 2011, the trial court issued a decision overruling all objections and adopting the
decision of the magistrate.
{¶10} On October 6, 2011, Appellant Nancy filed a notice of appeal. She herein
raises the following sole Assignment of Error:
{¶11} “I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT [NANCY]
IN CONTEMPT FOR FAILING TO GIVE THE APPELLEE [GARY] HOUSEHOLD
GOODS NOT LOCATED IN THE STORAGE WORK SHED.”
{¶12} On October 17, 2011, Appellee Gary filed a notice of cross-appeal. He
now raises the following two Assignments of Error as cross-appellant: Stark County, Case No. 2011 CA 00221 5
{¶13} “I. THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO
ORDER THE PLAINTIFF [NANCY] TO PAY INTEREST ON THE AMOUNT OWED TO
THE DEFENDANT [GARY].
{¶14} “II. THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO
AWARD ATTORNEY FEES TO THE DEFENDANT [GARY] UPON A FINDING OF
CONTEMPT.”
Direct Appeal
I.
{¶15} In her sole Assignment of Error, Appellant Nancy contends the trial court
erred in finding her in contempt regarding transfer of household goods.
{¶16} We note the trial court’s contempt finding against Nancy pertains solely to
the issue of spousal support. See Magistrate’s Decision at para. 9. The basis of Nancy’s
assigned error thus appears to be meritless. Nancy’s brief proposes that Exhibit 17,
upon which the trial court had relied in calculating property division in the final decree,
was altered from its original form. However, this was not mentioned in this Court’s
opinion in Haren II, which affirmed the marital property division, and we hold that any
concerns about the exhibit are now untimely for purposes of appellate review.
{¶17} Appellant Nancy's sole Assignment of Error is overruled.
Cross Appeal
{¶18} In his First Assignment of Error on cross-appeal, Gary contends the trial
court abused its discretion in declining to award him interest on the unpaid property
division monies.
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[Cite as Haren v. Haren, 2012-Ohio-2161.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
NANCY JO HAREN JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellant/Cross-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00221 GARY C. HAREN
Def.-Appellee/Cross-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2007 DR 01298
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: May 14, 2012
APPEARANCES:
For Plaintiff-Appellant/Cross-Appellee For Defendant-Appellee/Cross-Appellant
DAVID S. AKE ROSEMARY G. RUBIN 101 Central Plaza South THE VICTORIAN PROFESSIONAL BLDG. Suite 600 1435 Market Avenue North Canton, Ohio 44702 Canton, Ohio 44714 Stark County, Case No. 2011 CA 00221 2
Wise, J.
{¶1} Appellant/Cross-Appellee Nancy Haren appeals the decision of the Stark
County Court of Common Pleas, Domestic Relations Division, which found her in
contempt of court following her divorce from Appellee/Cross-Appellant Gary Haren. The
relevant facts leading to this appeal are as follows.
{¶2} Appellant/Cross-Appellee Nancy Haren and Appellee/Cross-Appellant
Gary Haren were married on September 25, 1981.1 Two children were born as issue of
that marriage: J.H., born in 1990, and K.H., born in 1991.
{¶3} On October 23, 2007, Nancy filed a complaint for divorce. Gary filed an
answer and counterclaim on November 1, 2007.
{¶4} The matter proceeded to a divorce trial on June 2, 2008. At the time of the
trial, the parties' older child had become emancipated. The chief issues disputed by the
parties were spousal support, the allocation of the marital residence, and the disposition
of the household goods and furniture. Testimony was adduced at trial that Nancy was
an X-ray technologist and had earned $49,086.72 in 2007, while Gary had received
$14,508.00 in Social Security disability benefits in 2007. Testimony was also presented
at trial that Nancy had a pension valued at $47,000.00, while Gary’s pension was
valued at $12,049.00.
{¶5} A judgment entry/decree of divorce was initially filed on September 18,
2008. The trial court ordered no spousal support to either party. The court further
1 In order to avoid confusion as to the identity of the parties, particularly in light of the existence of two prior appeals involving this case, we will hereinafter refer to the parties by their respective first names. Stark County, Case No. 2011 CA 00221 3
awarded the marital residence to Nancy, and additionally ordered that the parties'
marital assets and liabilities would be divided as per a particular trial exhibit.
{¶6} Gary thereupon filed a direct appeal from the divorce decree to this Court,
raising issues regarding the division of marital property, allocation of marital debts
(including attorney fees), and the lack of spousal support. On October 19, 2009, we
reversed the trial court’s decision on several bases and remanded the case. See Haren
v. Haren, 184 Ohio App.3d 722, 2009-Ohio-5652 (“Haren I”).
{¶7} After the remand, the trial court on June 7, 2010 again issued a judgment
entry/decree of divorce. Among other things, the trial court awarded Gary spousal
support in the amount of $400.00 per month for 100 months, subject to the death of
either party or Gary’s remarriage. Nancy was awarded the marital residence. The trial
court also ordered Nancy to pay an equalization payment of $43,738.50. The court also
ruled that if Nancy was unable to obtain the funds, she would be required to put the
marital residence on the market for sale.2 Following the issuance of the new decree,
Nancy appealed, while Gary filed a notice of cross-appeal. On February 22, 2011, we
affirmed the decision of the trial court, with a separate concurrence by Judge Hoffman.
See Haren v. Haren, Stark App.No. 2010CA00162, 2011-Ohio-891 (“Haren II”).
{¶8} On April 11, 2011, Gary filed a contempt motion against Nancy, alleging
that she had not complied with the orders for division of marital property and had
delayed paying spousal support. The matter proceeded to an evidentiary hearing before
a magistrate on August 10, 2011. The magistrate found Nancy to be guilty of contempt
2 The parties entered into a subsequent agreement in September 2010 that Nancy could also seek refinancing of the marital residence as a means of obtaining the equalization payment funds. Stark County, Case No. 2011 CA 00221 4
for her failure to pay the spousal support in a timely fashion. The magistrate did not find
Nancy in contempt regarding the payment of the $43,738.50. However, she made
orders requiring Nancy to complete her mortgage loan application prior to November 15,
2011 and to pay Gary the equalization sum no later than December 31, 2011. The
magistrate also ordered a date certain for Gary to pick up his personal property and
attached a list indicating what property he would be entitled to. The magistrate also
ordered Nancy to pay a lump sum purge amount of $5,600.00 on or before December
31, 2011 on the spousal support arrearages. The magistrate did not, however, award
attorney fees to Gary for the finding of contempt. She also declined to award interest on
the $43,738.50.
{¶9} Each side thereafter filed objections to the magistrate’s decision. The trial
court reviewed the objections and conducted a hearing on October 3, 2011. On October
4, 2011, the trial court issued a decision overruling all objections and adopting the
decision of the magistrate.
{¶10} On October 6, 2011, Appellant Nancy filed a notice of appeal. She herein
raises the following sole Assignment of Error:
{¶11} “I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT [NANCY]
IN CONTEMPT FOR FAILING TO GIVE THE APPELLEE [GARY] HOUSEHOLD
GOODS NOT LOCATED IN THE STORAGE WORK SHED.”
{¶12} On October 17, 2011, Appellee Gary filed a notice of cross-appeal. He
now raises the following two Assignments of Error as cross-appellant: Stark County, Case No. 2011 CA 00221 5
{¶13} “I. THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO
ORDER THE PLAINTIFF [NANCY] TO PAY INTEREST ON THE AMOUNT OWED TO
THE DEFENDANT [GARY].
{¶14} “II. THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO
AWARD ATTORNEY FEES TO THE DEFENDANT [GARY] UPON A FINDING OF
CONTEMPT.”
Direct Appeal
I.
{¶15} In her sole Assignment of Error, Appellant Nancy contends the trial court
erred in finding her in contempt regarding transfer of household goods.
{¶16} We note the trial court’s contempt finding against Nancy pertains solely to
the issue of spousal support. See Magistrate’s Decision at para. 9. The basis of Nancy’s
assigned error thus appears to be meritless. Nancy’s brief proposes that Exhibit 17,
upon which the trial court had relied in calculating property division in the final decree,
was altered from its original form. However, this was not mentioned in this Court’s
opinion in Haren II, which affirmed the marital property division, and we hold that any
concerns about the exhibit are now untimely for purposes of appellate review.
{¶17} Appellant Nancy's sole Assignment of Error is overruled.
Cross Appeal
{¶18} In his First Assignment of Error on cross-appeal, Gary contends the trial
court abused its discretion in declining to award him interest on the unpaid property
division monies. We disagree. Stark County, Case No. 2011 CA 00221 6
{¶19} A trial court has discretion whether or not to award interest on those
monetary obligations which arise out of property divisions upon divorce. See Koegel v.
Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206, syllabus. We review such a decision
regarding interest on an abuse of discretion standard. See, e.g., Cronin v. Cronin,
Greene App. Nos. 02-CA-110, 03-CA-75, 2005-Ohio-301, ¶ 26.
{¶20} In the case sub judice, Nancy’s requirement to pay the equalization sum of
approximately $43,738.50 was partially conditioned on her selling the marital residence
or taking out a new mortgage if she was unable to come up with the funds otherwise.
Under these circumstances, in light of the troubled real estate market of the past several
years, and further recognizing the protracted nature of this divorce brought about by
both parties, we are unable to find the existence of an abuse of discretion as to the lack
of interest on the property division orders.
{¶21} Gary's First Assignment of Error on cross-appeal is overruled.
II.
{¶22} In his Second Assignment of Error on cross-appeal, Gary contends the
trial court erred in declining to award him attorney fees for the contempt regarding
spousal support payable to him. We agree.
{¶23} Generally, an award of attorney fees lies within the sound discretion of the
trial court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d 609. However,
R.C. 3105.18(G) specifically provides as follows:
{¶24} “If any person * * * required to pay spousal support under an order made
or modified by a court on or after January 1, 1991, is found in contempt of court for
failure to make alimony or spousal support payments under the order, the court that Stark County, Case No. 2011 CA 00221 7
makes the finding, in addition to any other penalty or remedy imposed, shall assess all
court costs arising out of the contempt proceeding against the person and shall require
the person to pay any reasonable attorney's fees of any adverse party, as determined
by the court, that arose in relation to the act of contempt.”
{¶25} Based on the aforesaid statutory mandate, Gary’s Second Assignment of
Error on cross-appeal is sustained.
{¶26} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Stark County, Ohio, is hereby affirmed
in part, reversed in part, and remanded for a hearing to assess attorney fees pertaining
to the trial court proceedings for contempt as to spousal support.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
___________________________________
JUDGES JWW/d 0411 Stark County, Case No. 2011 CA 00221 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
NANCY JO HAREN : : Plaintiff-Appellant/Cross-Appellee : : -vs- : JUDGMENT ENTRY : GARY C. HAREN : : Defendant-Appellee/Cross-Appellant : Case No. 2011 CA 00221
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Stark County,
Ohio, is affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
Costs are to be split equally between the parties.
JUDGES