Mohr v. Mohr

2017 Ohio 1044

• Court: Ohio Court of Appeals
• Decided: March 20, 2017
• Docket: 16AP0007
• Status: Published

Opinion

[Cite as Mohr v. Mohr, 2017-Ohio-1044.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANITA C. MOHR : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 16AP0007 : DAVID W. MOHR, JR. : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Domestic Relations Division, Case No. 13 CV 0114

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 20, 2017

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

ADAM J. BAKER MILES D. FRIES Eight North Court Street, Suite 212 320 Main Street Athens, OH 45701-2450 P.O. Box 190 Zanesville, OH 43702-0190 Morgan County, Case No. 16AP0007 2

Delaney, P.J.

{¶1} Plaintiff-Appellant Anita C. Mohr appeals the June 14, 2016 judgment entry

of the Morgan County Court of Common Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellant Anita C. Mohr (“Wife”) and Defendant-Appellee David W.

Mohr, Jr. (“Husband”) were married on July 13, 1990. Wife filed a complaint for divorce

on March 19, 2013. The trial court held a final divorce hearing on May 19, 2014, but did

not journalize the Divorce Decree because Wife filed a grievance against the judge. The

judge recused himself and the matter was reassigned. A second final divorce hearing was

held on April 10, 2015. The Divorce Decree was issued on April 17, 2015.

{¶3} The April 17, 2015 Divorce Decree found the marital residence was marital

property. The trial court ordered the marital residence be sold at auction. During trial, Wife

introduced Exhibit 15, a three-page appraisal list of tangible personal property at the

residence. The Divorce Decree addressed the parties’ tangible personal property and

ordered that it also be auctioned with the marital residence. The Divorce Decree stated:

The auction will not include the parties’ clothing and personal effects. In

addition, the Court finds that some of the tangible personal property items

are separate property of the Defendant. The Court finds that the Plaintiff’s

separate property includes the following items which are awarded to her as

her separate property and are not to be included in the auction. Those items

are found on Plaintiff’s Exhibit “15”, a copy of which is attached hereto and

incorporated by reference: Number 4, 8, 10, 11, 17 – one (1) tractor, 22, 25,

and 47. The Court also finds that the following items found on Plaintiff’s Morgan County, Case No. 16AP0007 3

Exhibit “15” are the Defendant’s separate property: 13, 17 – one (1) tractor,

40, 55 and on Page 3 of Exhibit “15”, items 1, 15, 22, 23, including the

rocking chair, Ohio State birdhouse, and wooden mushroom.

{¶4} Wife had exclusive occupancy of the marital residence during the divorce

proceeding. Husband met with the auctioneer at the marital residence on August 23, 2015

to determine whether there was enough personal property to conduct an auction. Wife

moved out of the marital residence on September 5, 2015. Husband met the auctioneer

at the marital residence after Wife moved out. While he was at the marital residence,

Husband observed multiple items of marital property missing from the residence. The

auctioneer determined there was not enough property to conduct an auction.

{¶5} Husband filed a motion for contempt on September 11, 2015. Husband

argued Wife removed marital property that was to be sold at auction. Her removal of the

property, which caused the auction to be cancelled, was in direct contravention of the

Divorce Decree. He further argued Wife damaged the marital residence, diminishing its

value.

{¶6} Wife filed a motion for contempt on September 24, 2015.

{¶7} The trial court held a hearing on both motions for contempt on May 26, 2016

and June 14, 2016. At the hearing, Husband introduced Exhibit B, which he testified was

a list of twenty-nine property items removed from the marital residence. Wife testified she

used Exhibit 15 as her guide when she removed her belongings from the marital

residence on September 5, 2015. Wife admitted she removed the items listed in Exhibit

B; however, the items she removed from the marital residence listed on Husband’s Exhibit

B were not listed in the Divorce Decree as Husband’s separate property. Morgan County, Case No. 16AP0007 4

{¶8} At the conclusion of the hearing, the trial court stated, “I think I was very

specific in finding certain items of property that belong to [Wife], and certain items that

belong to [Husband]. Okay? Then there was the rest of the personal property. Okay? And

it was to be sold the same day that the real estate was sold. Okay? Now, certain of those

items have been removed by [Wife].” (Tr. 95).

{¶9} By judgment entry filed on June 14, 2016, the trial court found Wife in

contempt for her violation of the terms of the Divorce Decree. The trial court ordered that

all items listed in Exhibit B were to be returned by Wife to the marital residence within 30

days, at which time the real estate and personal property were to be sold. The trial court

did not impose sanctions on June 14, 2015. The trial court further stayed Wife’s motion

for contempt pending the auction of the real and personal property.

{¶10} It is from this judgment Wife now appeals.

ASSIGNMENT OF ERROR

{¶11} Wife raises one Assignment of Error:

{¶12} “THE TRIAL COURT’S FINDING OF CONTEMPT AND ORDER TO

AUCTION PERSONAL PROPERTY IS REVERSIBLE ERROR, UNREASONABLE AND

ARBITRARY, AND CONTRARY TO THE FACTS AND WEIGHT OF EVIDENCE SINCE

THE FINAL DIVORCE DECREE NEVER SPECIFIED TWENTY-FOUR (24) OF THE

TWENTY-NINE (29) ITEMS LISTED IN DEFENDANT’S CONTEMPT EXHIBIT (WHICH

BECAME THE EXHIBIT USED IN THE TRIAL COURT’S JUNE 14, 2016 JUDGMENT

ENTRY); OF THE 4 ITEMS THAT COINCIDED BETWEEN THE FINAL DIVORCE

DECREE AND DEFENDANT’S CONTEMPT EXHIBIT THREE (3) REMAIN AT THE

MARITAL RESIDENCE AND ONE (1) BELONGED TO THE FATHER OF Morgan County, Case No. 16AP0007 5

PLAINTIFF/APPELLANT ACCORDING TO TESTIMONY HEARD AT THE CONTEMPT

HEARING.”

ANALYSIS

{¶13} Wife argues the trial court abused its discretion when it found her in

contempt for removing property from the marital residence. We disagree.

{¶14} A trial court's decision regarding contempt will not be reversed absent an

abuse of discretion. Gunawardena v. Gunawardena, 5th Dist. Delaware No. 14 CAF 06

0035, 2015-Ohio-2566, ¶ 31 citing Beltz v. Beltz, 5th Dist. Stark Nos. 2005CA00193,

2005CA00194, 2006-Ohio-1144. In order to find an abuse of discretion, we must

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

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983).

{¶15} “Civil contempt is defined as that which exists in failing to do something

ordered to be done by the court in a civil action for the benefit of the opposing party

therein.” McKinney v. McKinney, 5th Dist. Stark No. 2014CA00118, 2015-Ohio-1114, ¶¶

11-12 quoting Beach v. Beach, 99 Ohio App. 428, 431, 130 N.E.2d 164 (1955). “It is

irrelevant that the transgressing party does not intend to violate the court order.” Pedone

v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (8th Dist.1983). “If the dictates of

the judicial decree are not followed, a contempt citation will result.” Id.

{¶16} Wife states the Divorce Decree and the attached Exhibit 15 identified the

separate property of Husband and Wife. Wife contends she properly followed the Divorce

Decree and did not remove any item from the marital residence listed in Exhibit 15 as

being Husband’s separate property. Based on the vague wording of the Divorce Decree, Morgan County, Case No. 16AP0007 6

Wife argues she was not adequately apprised she was forbidden from removing property

not listed in Exhibit 15 or the Divorce Decree from the marital residence. A party “cannot

be found in contempt if the contempt charge is premised on a party's failure to obey an

order of the court and the order is not clear, definite, and unambiguous and is subject to

dual interpretations.” Woodie v. Patterson, 5th Dist. No. 2013CA0022, 2014-Ohio-3017,

¶ 36 quoting Contos v. Monroe County, 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380;

Chilcote v. Gleason Const. Co., 5th Dist. Ashland No. 01COA01397, 2002-Ohio-746.

{¶17} Husband contends the Divorce Decree awarded the parties’ their separate

property. Items not listed in the Divorce Decree as separate property were marital

property to be auctioned. The twenty-nine items listed in Exhibit B were marital property.

{¶18} The Divorce Decree stated the parties’ tangible personal property was to

be auctioned off within sixty days of the date of the Divorce Decree. During the final

divorce hearing, Wife introduced Exhibit 15, a three-page list of tangible personal property

in the marital residence. The trial court found some of the tangible personal property items

listed in Exhibit 15 were separate property of Husband or Wife. In the Divorce Decree,

the trial court listed eight items in Exhibit 15 as Wife’s separate property and eight items

from Exhibit 15 as Husband’s separate property. The trial court also listed three items

(rocking chair, Ohio State birdhouse, and wooden mushroom) not found in Exhibit 15 as

Husband’s separate property. The Divorce Decree stated the specified items of separate

property were not to be included in the auction.

{¶19} The evidence at the contempt hearing demonstrated the property items

listed in Husband’s Exhibit B were not listed in the Divorce Decree as Husband or Wife’s

separate property; therefore, the Exhibit B items were marital property to be sold at Morgan County, Case No. 16AP0007 7

auction. Exhibit 15 listed three pages of tangible personal property and only sixteen items

on Exhibit 15 were determined to be separate property. We do not find Exhibit 15 to be a

complete list of the parties’ tangible personal property. The trial court remarked that one

of the items listed in Exhibit B, an Airstream motor home, was not listed in Exhibit 15 by

Wife or discussed at the final divorce hearing, but neither party disputed owning the

Airstream motor home. (Tr. 96).

{¶20} We find the trial court did not abuse its discretion when it determined Wife

was in contempt for her failure to follow the terms of the Divorce Decree as to the

designation of separate and marital property. The items not listed in the Divorce Decree

as separate property were marital property and should have remained at the marital

residence to be sold at auction.

{¶21} Wife’s sole Assignment of Error is overruled. Morgan County, Case No. 16AP0007 8

CONCLUSION

{¶22} The judgment of the Morgan County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Delaney, P.J.,

Wise, John, J. and

Baldwin, J., concur.