[Cite as Rose v. Rose, 2013-Ohio-5136.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99933
GARY ROSE PLAINTIFF-APPELLANT
vs.
DRAZANA ROSE DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-262110
BEFORE: Keough, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 21, 2013 ATTORNEY FOR APPELLANT
Kevin J.M. Senich 4438 Pearl Road Cleveland, Ohio 44109
ATTORNEY FOR APPELLEE
Laurence A. Turbow Laurence A. Turbow, L.P.A., Inc. 4403 St. Clair Avenue, Suite 300 Cleveland, Ohio 44103 KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, Gary Rose, appeals from the trial court’s judgment that
overruled his objections and adopted the magistrate’s decision that found him in contempt
and ordered him to pay defendant-appellee, Drazana Rose, $5,000 plus statutory interest
from June 14, 2000, and attorney fees in the amount of $3,887.50. For the reasons that
follow, we affirm.
I. Background
{¶2} Gary and Drazana were divorced on June 15, 2000. The divorce decree
adopted the parties’ separation agreement, wherein the parties agreed that Gary would pay
Drazana $5,000 for her equity in the marital home and $10,000 in spousal support as
follows: $5,000 on or before June 1, 2005 and $5,000 on or before June 1, 2010. The
parties further agreed to the following penalties for missed payments:
If the husband fails to pay the wife $5,000 within 90 days of the journalization of this decree then husband shall be responsible to pay wife the entire $15,000 due hereunder for which judgment shall be rendered and execution may issue. If the husband fails to pay the wife the sum of $5,000 due June 1, 2005, within 30 days of that date, then the husband shall be responsible to pay the wife the entire remaining balance of $10,000 due hereunder including interest at the statutory rate from June 14, 2000 on the remaining balance. If the husband fails to pay to the wife the sum of $5,000 due on June 10, 2010 within 30 days of that date, then the husband shall be responsible to pay the wife the remaining balance of $15,000 due hereunder including interest at the statutory rate from June 14, 2000 on the remaining balance.
{¶3} Gary timely paid Drazana $5,000 for her equity in the marital home and
timely made the $5,000 spousal support payment due on June 1, 2005. He did not make the $5,000 payment due on June 1, 2010.
{¶4} Nearly two years later, on March 12, 2012, Drazana filed a motion to show
cause why Gary should not be held in contempt for his failure to pay the $5,000 he still
owed her. The motion was heard by a magistrate on January 10, 2013. The magistrate
subsequently issued a decision containing findings of fact and conclusions of law. The
magistrate found Gary in contempt and granted judgment to Drazana in the amount of
$5,000, plus statutory interest from June 14, 2000. The magistrate further ordered that
Gary pay Drazana attorney fees related to her motion to show cause in the amount of
$3,887.50.
{¶5} Finally, the magistrate sentenced Gary to 30 days in jail on the contempt
finding. The magistrate ordered, however, that Gary’s sentence “will be purged provided
that the Support Obligor [i.e., Gary] fully satisfies, or makes written arrangements with
the Defendant [i.e., Drazana] to fully satisfy, the aforementioned judgment for ‘$5,000
plus statutory interest from 6/14/2000’ within 30 days of the journalization of this order.”
{¶6} Gary subsequently filed objections to the magistrate’s decision. The trial
court overruled Gary’s objections and adopted the magistrate’s decision. Gary now
appeals from the trial court’s judgment.
II. Analysis
{¶7} A trial court may employ sanctions to coerce a party who is in contempt into
complying with a court order. Whitman v. Monastra, 8th Dist. Cuyahoga No. 76633, 2000 Ohio App. LEXIS 4637, *17 (Oct. 5, 2000). However, any sanction for civil
contempt must allow the contemnor an opportunity to purge the contempt. Id., citing
Carroll v. Detty, 113 Ohio App.3d 708, 712, 681 N.E.2d 1383 (4th Dist.1996). A trial
court abuses its discretion by ordering purge conditions that are unreasonable or where
compliance is impossible. Burchett v. Miller, 123 Ohio App.3d 550, 552, 704 N.E.2d
636 (6th Dist.1997).
{¶8} In his single assignment of error, Gary argues that the trial court abused its
discretion by imposing a purge order that was unreasonable and impossible to comply
with.
{¶9} The trial court offered Gary two ways to purge his contempt and avoid the
30-day jail sentence. The first condition required Gary to pay Drazana $10,729.90 1
within 30 days of the journalization of the trial court’s order. Gary argues that this
condition was unreasonable because although the trial court found that his income had
decreased substantially from the date of the divorce decree, it made no finding that he had
the financial ability to satisfy the outstanding obligation. Gary contends that it was
unreasonable for the trial court to find that he was in contempt for not paying Drazana
$5,000 in 2010 but then order that he could purge the contempt by making a lump sum
payment to her of $10,729.90.
{¶10} But unsupported claims of financial difficulty or an inability to pay are
The $5,000 missed payment plus statutory interest from June 14, 2000 to 1
January 10, 2013. insufficient to establish that the trial court’s conditions are unreasonable. See Pettit v.
Pettit, 8th Dist. Cuyahoga No. 64582, 1993 Ohio App. LEXIS 6200, *12. Here, Gary
did not demonstrate that he could not make the payment. Indeed, the magistrate
specifically found that although Gary claimed he did not have money to pay Drazana, he
offered no evidence of his actual income or expenses from the time of the divorce until
the contempt hearing.
{¶11} Moreover, the magistrate found that Gary’s testimony regarding his alleged
inability to pay Drazana in compliance with the divorce decree was “lacking in
credibility.” Rather, the magistrate found that “[t]he evidence that is credible and
convincing makes it clear that it was not the Plaintiff’s lack of ability to comply with the
court’s order, but his lack of will to do so that pertained, and continues to do so.” The
magistrate based this conclusion on “credible and convincing evidence” that in the years
2010 and 2011, Gary received tax refunds of $4,000 and $3,500 respectively but paid
none of these funds to Drazana. The magistrate noted that “[t]he lack of even a partial
payment to the Defendant indicates a lack of good faith on the part of the Plaintiff with
regard to his obligations under the Court order.” Without any evidence that he was
unable to pay Drazana, Gary failed to demonstrate that the trial court’s requirement of a
lump sum payment to Drazana was an unreasonable condition to purge his contempt.
{¶12} In the alternative, the trial court ordered that Gary could purge the contempt
finding by making written arrangments with Drazana regarding how he would fully
satisfy the judgment. {¶13} Gary first argues that this condition is unreasonable because it is ambiguous
as to when it must be fulfilled. We find no ambiguity. The trial court ordered that the
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[Cite as Rose v. Rose, 2013-Ohio-5136.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99933
GARY ROSE PLAINTIFF-APPELLANT
vs.
DRAZANA ROSE DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-262110
BEFORE: Keough, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 21, 2013 ATTORNEY FOR APPELLANT
Kevin J.M. Senich 4438 Pearl Road Cleveland, Ohio 44109
ATTORNEY FOR APPELLEE
Laurence A. Turbow Laurence A. Turbow, L.P.A., Inc. 4403 St. Clair Avenue, Suite 300 Cleveland, Ohio 44103 KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, Gary Rose, appeals from the trial court’s judgment that
overruled his objections and adopted the magistrate’s decision that found him in contempt
and ordered him to pay defendant-appellee, Drazana Rose, $5,000 plus statutory interest
from June 14, 2000, and attorney fees in the amount of $3,887.50. For the reasons that
follow, we affirm.
I. Background
{¶2} Gary and Drazana were divorced on June 15, 2000. The divorce decree
adopted the parties’ separation agreement, wherein the parties agreed that Gary would pay
Drazana $5,000 for her equity in the marital home and $10,000 in spousal support as
follows: $5,000 on or before June 1, 2005 and $5,000 on or before June 1, 2010. The
parties further agreed to the following penalties for missed payments:
If the husband fails to pay the wife $5,000 within 90 days of the journalization of this decree then husband shall be responsible to pay wife the entire $15,000 due hereunder for which judgment shall be rendered and execution may issue. If the husband fails to pay the wife the sum of $5,000 due June 1, 2005, within 30 days of that date, then the husband shall be responsible to pay the wife the entire remaining balance of $10,000 due hereunder including interest at the statutory rate from June 14, 2000 on the remaining balance. If the husband fails to pay to the wife the sum of $5,000 due on June 10, 2010 within 30 days of that date, then the husband shall be responsible to pay the wife the remaining balance of $15,000 due hereunder including interest at the statutory rate from June 14, 2000 on the remaining balance.
{¶3} Gary timely paid Drazana $5,000 for her equity in the marital home and
timely made the $5,000 spousal support payment due on June 1, 2005. He did not make the $5,000 payment due on June 1, 2010.
{¶4} Nearly two years later, on March 12, 2012, Drazana filed a motion to show
cause why Gary should not be held in contempt for his failure to pay the $5,000 he still
owed her. The motion was heard by a magistrate on January 10, 2013. The magistrate
subsequently issued a decision containing findings of fact and conclusions of law. The
magistrate found Gary in contempt and granted judgment to Drazana in the amount of
$5,000, plus statutory interest from June 14, 2000. The magistrate further ordered that
Gary pay Drazana attorney fees related to her motion to show cause in the amount of
$3,887.50.
{¶5} Finally, the magistrate sentenced Gary to 30 days in jail on the contempt
finding. The magistrate ordered, however, that Gary’s sentence “will be purged provided
that the Support Obligor [i.e., Gary] fully satisfies, or makes written arrangements with
the Defendant [i.e., Drazana] to fully satisfy, the aforementioned judgment for ‘$5,000
plus statutory interest from 6/14/2000’ within 30 days of the journalization of this order.”
{¶6} Gary subsequently filed objections to the magistrate’s decision. The trial
court overruled Gary’s objections and adopted the magistrate’s decision. Gary now
appeals from the trial court’s judgment.
II. Analysis
{¶7} A trial court may employ sanctions to coerce a party who is in contempt into
complying with a court order. Whitman v. Monastra, 8th Dist. Cuyahoga No. 76633, 2000 Ohio App. LEXIS 4637, *17 (Oct. 5, 2000). However, any sanction for civil
contempt must allow the contemnor an opportunity to purge the contempt. Id., citing
Carroll v. Detty, 113 Ohio App.3d 708, 712, 681 N.E.2d 1383 (4th Dist.1996). A trial
court abuses its discretion by ordering purge conditions that are unreasonable or where
compliance is impossible. Burchett v. Miller, 123 Ohio App.3d 550, 552, 704 N.E.2d
636 (6th Dist.1997).
{¶8} In his single assignment of error, Gary argues that the trial court abused its
discretion by imposing a purge order that was unreasonable and impossible to comply
with.
{¶9} The trial court offered Gary two ways to purge his contempt and avoid the
30-day jail sentence. The first condition required Gary to pay Drazana $10,729.90 1
within 30 days of the journalization of the trial court’s order. Gary argues that this
condition was unreasonable because although the trial court found that his income had
decreased substantially from the date of the divorce decree, it made no finding that he had
the financial ability to satisfy the outstanding obligation. Gary contends that it was
unreasonable for the trial court to find that he was in contempt for not paying Drazana
$5,000 in 2010 but then order that he could purge the contempt by making a lump sum
payment to her of $10,729.90.
{¶10} But unsupported claims of financial difficulty or an inability to pay are
The $5,000 missed payment plus statutory interest from June 14, 2000 to 1
January 10, 2013. insufficient to establish that the trial court’s conditions are unreasonable. See Pettit v.
Pettit, 8th Dist. Cuyahoga No. 64582, 1993 Ohio App. LEXIS 6200, *12. Here, Gary
did not demonstrate that he could not make the payment. Indeed, the magistrate
specifically found that although Gary claimed he did not have money to pay Drazana, he
offered no evidence of his actual income or expenses from the time of the divorce until
the contempt hearing.
{¶11} Moreover, the magistrate found that Gary’s testimony regarding his alleged
inability to pay Drazana in compliance with the divorce decree was “lacking in
credibility.” Rather, the magistrate found that “[t]he evidence that is credible and
convincing makes it clear that it was not the Plaintiff’s lack of ability to comply with the
court’s order, but his lack of will to do so that pertained, and continues to do so.” The
magistrate based this conclusion on “credible and convincing evidence” that in the years
2010 and 2011, Gary received tax refunds of $4,000 and $3,500 respectively but paid
none of these funds to Drazana. The magistrate noted that “[t]he lack of even a partial
payment to the Defendant indicates a lack of good faith on the part of the Plaintiff with
regard to his obligations under the Court order.” Without any evidence that he was
unable to pay Drazana, Gary failed to demonstrate that the trial court’s requirement of a
lump sum payment to Drazana was an unreasonable condition to purge his contempt.
{¶12} In the alternative, the trial court ordered that Gary could purge the contempt
finding by making written arrangments with Drazana regarding how he would fully
satisfy the judgment. {¶13} Gary first argues that this condition is unreasonable because it is ambiguous
as to when it must be fulfilled. We find no ambiguity. The trial court ordered that the
contempt could be purged if, within 30 days of the journalization of the court’s order,
Gary made written arrangements with Drazana regarding how he would fully satisfy the
judgment.
{¶14} Gary next argues that this condition is impossible to comply with because he
cannot force Drazana to agree to any payment arrangement. Gary’s assertion of
impossibility seems highly dubious in light of Drazana’s interest in obtaining payment
from Gary. But more importantly, Gary offered no evidence whatsoever to support his
claim of impossibility; he merely claims that it would be impossible to obtain a written
agreement from Drazana because the divorce proceedings were long and contentious.
Without any evidence, Gary’s unsupported claim is insufficient to demonstrate that it
would be impossible to satisfy the purge condition.
{¶15} We find that Gary has failed to present any evidence to establish that the
trial court’s purge conditions were unreasonable and impossible for him to satisfy.
Accordingly, we hold that the trial court did not abuse its discretion in imposing the purge
conditions. The assignment of error is overruled.
{¶16} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR