[Cite as Pickens v. Pickens, 2019-Ohio-216.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
LORRAINE R. PICKENS, : Case No. 18CA7
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY ROBERT J. PICKENS, :
Defendant-Appellant. : RELEASED 01/17/2019
APPEARANCES:
Stephen S. Gussler, Margulis, Gussler & Hall, Circleville, Ohio, for appellant. Lorraine R. Pickens, Kokomo, Indiana, pro se appellee.
Hoover, J. {¶1} Robert J. Pickens (“appellant”) appeals the judgment of the Pickaway County
Court of Common Pleas, Division of Domestic Relations, denying his motion to terminate
spousal support owed to Lorraine R. Pickens (“appellee”), denying his motion for contempt for
alleged damages to the marital residence caused by appellee, and reducing to judgment monies
owed to appellee under the parties’ divorce decree. For the following reasons, we affirm the
judgment of the trial court.
I. Facts and Procedural History
{¶2} Appellant and appellee were married June 7, 1981, and have five children born as
issue of the marriage. All but one of the children were emancipated when the original complaint
and counterclaim for divorce were filed in the trial court on October 2 and October 11, 2007. Pickaway App. No. 18CA7 2
{¶3} The divorce proceedings were tried before the magistrate in March 2009. The
magistrate’s decision was filed November 18, 2009, recommending that appellee be granted a
divorce and that she be allocated custody of the remaining minor child together with child
support.
{¶4} The magistrate also made findings regarding the marital and separate property of
the parties and recommended allocation of various items of personal property and separate
property. The magistrate recommended that the family farm, including the former marital
residence of the parties, be allocated to appellant and that he be ordered to pay appellee
$1,282,919.50 to equalize the division of property. This sum was to be paid as follows: $300,000
within 45 days of the filing of the divorce decree and the balance together with five percent
interest was to be paid in six annual installments. To date, the equalization of property has been
fully paid.
{¶5} Finally, the magistrate recommended that appellant pay spousal support to
appellee of $1,200 per month and recommended that the court retain jurisdiction to modify the
amount or duration of spousal support.
{¶6} Appellee filed objections to the magistrate’s decision, which were overruled by
the trial court on May 26, 2010. The final divorce decree adopting the magistrate’s findings and
recommendations was filed July 26, 2010.
{¶7} Although the farm and marital residence was allocated to appellant, appellee
continued to occupy the residence until May 2011, around the time appellant had filed eviction
proceedings against appellee in the Circleville Municipal Court.1 Appellant alleges that appellee
left the residence “in extreme disrepair costing in excess of $10,000 to repair and make it
1 The eviction case included two causes of action, one for possession of the residence, and one for rent and damages. Appellee eventually left the residence voluntarily, and the eviction case was dismissed. Pickaway App. No. 18CA7 3
habitable.” In response, and in an apparent attempt to collect for “such holdover and damages”,
the appellant withheld paying appellee $13,100.11 of a bank account allocated to her in the
divorce. It is also undisputed that appellant owes appellee $7,276.54 for unreimbursed medical
and dental expenses of the minor child.
{¶8} On March 29, 2017, appellee filed contempt charges against appellant for failure
to pay her the bank account balance and the child related medical expenses due under the decree.
Thereafter, appellant filed his motion for contempt for damages to the marital residence.
Appellant further filed a motion to terminate spousal support. Finally, appellant further requested
that he be granted a set off against his obligations for appellee’s holdover and damages of his
real property.
{¶9} The various motions were tried in December 2017; and a magistrate’s decision
was filed January 10, 2018, denying appellant the right of set off. The magistrate’s decision
further denied appellant’s motion for contempt and motion to terminate spousal support. The
magistrate did recommend, however, that judgment be reduced against appellant in the amount
of $20,376.65 for the unpaid medical bills and for appellee’s share of the bank account due under
the divorce decree.
{¶10} Appellant objected to the magistrate’s decision; but the trial court overruled his
objections by decision and entry filed May 4, 2018. The decision and judgment entry largely
upheld the findings and conclusions of the magistrate. Appellant filed a timely notice of appeal.
II. Assignments of Error
{¶11} Appellant assigns the following errors for our review:
First Assignment of Error: Pickaway App. No. 18CA7 4
The Trial Court erred by ruling that defendant could not claim a set off against plaintiff’s claims for holding over and damages to property allocated to him.
Second Assignment of Error:
The Trial Court erred by finding there was no significant financial changes sufficient to support a termination or reduction in spousal support.
III. Law and Analysis
{¶12} In his first assignment of error, appellant argues that the trial court erred by not
finding appellee in contempt for the holdover, waste, damage, and destruction she allegedly
caused to the marital residence, and for not ordering a set off of those damages from and the
monies he admittedly owed her under the divorce decree. Put another way, appellant claims that
the evidence reveals that appellee caused substantial destruction to the marital home prior to
vacating it in May 2011 resulting in damages in excess of $10,000; and that those damages
should be deducted or set off from the monies he owes her for the unpaid bank account balance
and for the unpaid medical expenses.
{¶13} On these issues, the trial court denied appellant’s motion for contempt because the
divorce decree did not establish a date by which appellee was required to vacate the marital
residence and did not require the payment of rent or utilities. Along similar lines, the trial court
also ruled that appellant’s claims for set off did not arise from specific provisions in the divorce
decree but, rather, were separate issues based upon theories of contract and tort. Thus, it
determined that those issues were not within the jurisdiction of the domestic court; and that
appellant elected his remedy in filing an eviction action in the municipal court.
{¶14} As an initial matter, we note that contempt is the disobedience of a court order.
Franchuk v. Franchuk, 4th Dist. Washington No. 16CA3, 2016-Ohio-7563, ¶ 28, citing
Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, ¶ 45. We review a trial Pickaway App. No. 18CA7 5
court’s decision regarding contempt proceedings for an abuse of discretion. Burchett v. Burchett,
4th Dist. Scioto No. 16CA3784, 2017-Ohio-8124, ¶ 19. An abuse of discretion implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Id. “While a trial court does not
have jurisdiction to modify the division of property in a properly-filed divorce decree, it may
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[Cite as Pickens v. Pickens, 2019-Ohio-216.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
LORRAINE R. PICKENS, : Case No. 18CA7
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY ROBERT J. PICKENS, :
Defendant-Appellant. : RELEASED 01/17/2019
APPEARANCES:
Stephen S. Gussler, Margulis, Gussler & Hall, Circleville, Ohio, for appellant. Lorraine R. Pickens, Kokomo, Indiana, pro se appellee.
Hoover, J. {¶1} Robert J. Pickens (“appellant”) appeals the judgment of the Pickaway County
Court of Common Pleas, Division of Domestic Relations, denying his motion to terminate
spousal support owed to Lorraine R. Pickens (“appellee”), denying his motion for contempt for
alleged damages to the marital residence caused by appellee, and reducing to judgment monies
owed to appellee under the parties’ divorce decree. For the following reasons, we affirm the
judgment of the trial court.
I. Facts and Procedural History
{¶2} Appellant and appellee were married June 7, 1981, and have five children born as
issue of the marriage. All but one of the children were emancipated when the original complaint
and counterclaim for divorce were filed in the trial court on October 2 and October 11, 2007. Pickaway App. No. 18CA7 2
{¶3} The divorce proceedings were tried before the magistrate in March 2009. The
magistrate’s decision was filed November 18, 2009, recommending that appellee be granted a
divorce and that she be allocated custody of the remaining minor child together with child
support.
{¶4} The magistrate also made findings regarding the marital and separate property of
the parties and recommended allocation of various items of personal property and separate
property. The magistrate recommended that the family farm, including the former marital
residence of the parties, be allocated to appellant and that he be ordered to pay appellee
$1,282,919.50 to equalize the division of property. This sum was to be paid as follows: $300,000
within 45 days of the filing of the divorce decree and the balance together with five percent
interest was to be paid in six annual installments. To date, the equalization of property has been
fully paid.
{¶5} Finally, the magistrate recommended that appellant pay spousal support to
appellee of $1,200 per month and recommended that the court retain jurisdiction to modify the
amount or duration of spousal support.
{¶6} Appellee filed objections to the magistrate’s decision, which were overruled by
the trial court on May 26, 2010. The final divorce decree adopting the magistrate’s findings and
recommendations was filed July 26, 2010.
{¶7} Although the farm and marital residence was allocated to appellant, appellee
continued to occupy the residence until May 2011, around the time appellant had filed eviction
proceedings against appellee in the Circleville Municipal Court.1 Appellant alleges that appellee
left the residence “in extreme disrepair costing in excess of $10,000 to repair and make it
1 The eviction case included two causes of action, one for possession of the residence, and one for rent and damages. Appellee eventually left the residence voluntarily, and the eviction case was dismissed. Pickaway App. No. 18CA7 3
habitable.” In response, and in an apparent attempt to collect for “such holdover and damages”,
the appellant withheld paying appellee $13,100.11 of a bank account allocated to her in the
divorce. It is also undisputed that appellant owes appellee $7,276.54 for unreimbursed medical
and dental expenses of the minor child.
{¶8} On March 29, 2017, appellee filed contempt charges against appellant for failure
to pay her the bank account balance and the child related medical expenses due under the decree.
Thereafter, appellant filed his motion for contempt for damages to the marital residence.
Appellant further filed a motion to terminate spousal support. Finally, appellant further requested
that he be granted a set off against his obligations for appellee’s holdover and damages of his
real property.
{¶9} The various motions were tried in December 2017; and a magistrate’s decision
was filed January 10, 2018, denying appellant the right of set off. The magistrate’s decision
further denied appellant’s motion for contempt and motion to terminate spousal support. The
magistrate did recommend, however, that judgment be reduced against appellant in the amount
of $20,376.65 for the unpaid medical bills and for appellee’s share of the bank account due under
the divorce decree.
{¶10} Appellant objected to the magistrate’s decision; but the trial court overruled his
objections by decision and entry filed May 4, 2018. The decision and judgment entry largely
upheld the findings and conclusions of the magistrate. Appellant filed a timely notice of appeal.
II. Assignments of Error
{¶11} Appellant assigns the following errors for our review:
First Assignment of Error: Pickaway App. No. 18CA7 4
The Trial Court erred by ruling that defendant could not claim a set off against plaintiff’s claims for holding over and damages to property allocated to him.
Second Assignment of Error:
The Trial Court erred by finding there was no significant financial changes sufficient to support a termination or reduction in spousal support.
III. Law and Analysis
{¶12} In his first assignment of error, appellant argues that the trial court erred by not
finding appellee in contempt for the holdover, waste, damage, and destruction she allegedly
caused to the marital residence, and for not ordering a set off of those damages from and the
monies he admittedly owed her under the divorce decree. Put another way, appellant claims that
the evidence reveals that appellee caused substantial destruction to the marital home prior to
vacating it in May 2011 resulting in damages in excess of $10,000; and that those damages
should be deducted or set off from the monies he owes her for the unpaid bank account balance
and for the unpaid medical expenses.
{¶13} On these issues, the trial court denied appellant’s motion for contempt because the
divorce decree did not establish a date by which appellee was required to vacate the marital
residence and did not require the payment of rent or utilities. Along similar lines, the trial court
also ruled that appellant’s claims for set off did not arise from specific provisions in the divorce
decree but, rather, were separate issues based upon theories of contract and tort. Thus, it
determined that those issues were not within the jurisdiction of the domestic court; and that
appellant elected his remedy in filing an eviction action in the municipal court.
{¶14} As an initial matter, we note that contempt is the disobedience of a court order.
Franchuk v. Franchuk, 4th Dist. Washington No. 16CA3, 2016-Ohio-7563, ¶ 28, citing
Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, ¶ 45. We review a trial Pickaway App. No. 18CA7 5
court’s decision regarding contempt proceedings for an abuse of discretion. Burchett v. Burchett,
4th Dist. Scioto No. 16CA3784, 2017-Ohio-8124, ¶ 19. An abuse of discretion implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Id. “While a trial court does not
have jurisdiction to modify the division of property in a properly-filed divorce decree, it may
enforce its orders set forth in the decree.” Jenkins v. Jenkins, 12th Dist. Butler No. CA2010-09-
238, 2012-Ohio-48, ¶ 11, citing Schuster v. Schuster, 3d Dist. Wyandot No. 16-08-22, 2009-
Ohio-1736.
{¶15} The trial court reviewed the divorce decree, and determined that it did not contain
any orders requiring appellee to pay rent or to vacate the marital residence by a certain date. The
pertinent provisions of the decree state:
9. The Court has considered the factors set forth in O.R.C. 3195.171 and the
property of the parties shall be divided as set out below: * * *
f. [Appellant] shall be entitled to all right, title and interest in the real estate
situated in the Townships of Monroe and Muhlenberg, Pickaway County, Ohio,
consisting of approximately nine (9) individual parcels totaling 515.146 acres of
land, more or less.
g. [Appellant] shall be responsible for all maintenance and repairs on said
property, shall pay homeowners insurance and real estate taxes, and shall pay any
lien indebtedness owed thereon, holding [Appellee] harmless from payment of the
same.
*** Pickaway App. No. 18CA7 6
13. Upon [Appellant’s] payment of the full balance [of the property
equalization], [Appellee] shall execute a Quit Claim Deed, transferring to
[Appellant] all of her right, title, and interest in the subject real estate.
{¶16} It is clear upon reviewing the divorce decree that there is no provision requiring
appellee to vacate the premises by a certain date, to pay rent, or to maintain the property. Rather,
the decree obligates appellant to maintain the residence, and insinuates that appellee maintained
rights in the property until the final equalization of property – and it is undisputed that appellee
vacated the residence well before the final equalization payment was made. Thus, even if
appellee did cause damage to the residence, the trial court correctly denied appellant’s motion for
contempt because there was no provision in the decree requiring appellee to pay rent or to
maintain the property.
{¶17} Simply put, we agree with the trial court that the divorce decree did not require
appellee to pay rent or to maintain or upkeep the residence. Therefore, the trial court’s decision
to deny appellant’s motion for contempt arising from the decree was not an abuse of discretion.
Furthermore, because there is no violation of a court order, appellant is not entitled to damages
or a set off of damages. Accordingly, the trial court did not err by denying appellant’s request for
set off of damages.
{¶18} Despite our holdings, we do not suggest that a party in possession of property has
no duty to maintain or preserve such property. Rather, our decision only addresses whether
appellee was in violation of a court order, and whether the parties’ divorce decree contained
language ordering her to maintain the home or to pay rent. Under the particular facts and
circumstances of this case, contempt is not the proper method to seek redress. See Jenkins at ¶
15-16 (noting that a contempt motion is not the sole method to raise a claim of waste). Pickaway App. No. 18CA7 7
{¶19} Based on the foregoing, appellant’s first assignment of error is overruled.
{¶20} In his second assignment of error, appellant contends that the trial court erred by
finding there was no significant change in circumstance sufficient to support a termination or
reduction in spousal support.
{¶21} Trial courts generally enjoy broad discretion to determine spousal
support issues. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); Cherry v.
Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). Consequently, an appellate court will not
reverse a trial court’s spousal support decision absent an abuse of discretion. Bechtol v.
Bechtol, 49 Ohio St.3d 21, 24, 550 N.E.2d 178 (1990); Holcomb v. Holcomb, 44 Ohio St.3d 128,
131, 541 N.E.2d 597 (1989). Likewise, appellate courts should not reverse trial court spousal
support modification decisions absent an abuse of discretion. Addington v. Addington, 4th Dist.
Scioto No. 05CA3034, 2006–Ohio–4871, ¶ 8.
{¶22} “R.C. 3105.18(E) permits a court to modify an award of spousal support if the
court determines that ‘the circumstances of either party have changed’ since the existing order
was entered and the decree of divorce contains a provision specifically authorizing the court
to modify the amount or terms of spousal support.” Justus v. Justus, 4th Dist. Gallia Nos.
92CA24, 92CA37, 1993 WL 436033, *4 (Oct. 27, 1993), citing R.C. 3105.18(E). “Absent these
two conditions, a court is without jurisdiction to modify an award of spousal support.” Id.
{¶23} The party seeking a spousal support modification bears the burden of proving a
changed circumstance that would justify a change in the amount of spousal support. Addington at
¶ 8. A “change in the circumstances of a party includes, but is not limited to, any increase or
involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses,
or other changed circumstances so long as * * * [t]he change in circumstances is substantial and Pickaway App. No. 18CA7 8
makes the existing award no longer reasonable and appropriate * * * [and][t]he change in
circumstances was not taken into account by the parties or the court as a basis for the existing
award when it was established or last modified, whether or not the change in circumstances was
foreseeable.” R.C. 3105.18(F)(1)(a)-(b).
{¶24} Here, appellant argues that spousal support is no longer needed, or should at least
be modified, because there has been a significant change in appellee’s financial circumstances.
Specifically, he argues that appellee has “been living off her property settlement, interest and * *
* spousal support for nine years”, and because that money was not previously available to her
“[t]here has to have been a change in her financial circumstances from the time of the original
order.”
{¶25} In denying appellant’s motion to terminate spousal support, the trial court noted
that appellee’s “financial situation has not changed since the divorce in 2010” and that appellant
“failed to show a change in circumstance for either party.”
{¶26} As an initial matter, we note that the parties’ divorce decree provided that the
amount of spousal support was modifiable and subject to the continuing jurisdiction of the
Pickaway County Court of Common Pleas, Division of Domestic Relations. Nonetheless,
appellee’s receipt of the property distribution proceeds and of the spousal support payments up
until the time of the filing of the motion to terminate/modify spousal support, do not warrant the
termination or modification of the support order. While the receipt of the property distribution
proceeds and prior payments of spousal support amount to a significant amount of money, those
proceeds were taken into account by the trial court as a basis for the existing award when it was
established. Thus, receipt of those proceeds does not amount to a change in circumstances as
contemplated under R.C. 3105.18(F). Accordingly, the trial court’s denial of the motion to Pickaway App. No. 18CA7 9
modify/terminate was not unreasonable, arbitrary, or unconscionable, and does not amount to an
abuse of discretion.
{¶27} Appellant’s second assignment of error is overruled.
IV. Conclusion
{¶28} Having overruled both of appellant’s assignments of error, we affirm the
JUDGMENT AFFIRMED. Pickaway App. No. 18CA7 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Pleas, Division of Domestic Relations, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and McFarland, J.: Concur in Judgment Only.
For the Court
By: ____________________________ Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.