Frey v. Frey

[Cite as Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

FREY,

APPELLEE, CASE NO. 5-11-12

v.

FREY, n.k.a

NIGH, OPINION

APPELLANT.

Appeal from Hancock County Common Pleas Court,

Domestic Relations Division

Trial Court No. 2001-DR-287

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: November 21, 2011

APPEARANCES:

John A. Kissh Jr., for appellee.

William E. Clark, for appellant.

Case No. 5-11-12

SHAW, Judge.

{¶ 1} Appellant, Kimberly Frey, n.k.a. Nigh (“Kimberly”) appeals the

March 15, 2011 judgment of the Hancock County Court of Common Pleas,

Domestic Relations Division, finding her in contempt of its order to pay child

support.

{¶ 2} Kimberly and Rick Frey (“Rick”) divorced in May 2002. There

were three children born from the marriage. Rick was designated as the children’s

residential parent. The divorce decree did not provide for either party to pay child

support. After the entry of the original divorce decree, Kimberly moved to

reallocate parental rights in January 2003. The magistrate denied Kimberly’s

motion.

{¶ 3} In May 2004, Kimberly again moved to modify parenting time and

the designation of residential parent and for a review of child support. In May

2005, the magistrate granted Kimberly’s motion to modify parenting time, finding

that modification of the parenting-time schedule was in the best interest of the

children. Kimberly was granted additional visitation with the children. The

magistrate identified Rick as the residential parent on the child-support calculation

worksheet and concluded that Kimberly should not be required to pay him child

support.

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{¶ 4} Kimberly subsequently filed a motion for clarification and

reconsideration, alleging that the magistrate failed to address her request that Rick

pay her child support. In a supplemental order, the magistrate designated

Kimberly as the residential parent and obligee on the child-support worksheet for

purposes of calculating child support, which yielded a guideline child-support

figure of $1,013.68 per month owed by Rick. The magistrate then deviated from

the guideline support amount pursuant to R.C. 3119.22 and 3119.23, finding that

among other things, requiring Rick to pay guideline support “would be

burdensome and contrary to the best interests of the children.” Consequently, the

magistrate ordered Rick to pay Kimberly $100 a month, per child, or $300 a

month, plus processing fees.

{¶ 5} The order was adopted by the trial court. Rick appealed the decision

to this court, arguing that the designation of Kimberly as residential parent on the

child-support worksheet was in error because the children primarily reside with

him. See Frey v. Frey, 3d Dist. No. 5-06-36, 2007-Ohio-2991, 2007 WL

1731592.

{¶ 6} This court concluded that Rick was in fact the residential parent

based upon the time the children resided with him. We then determined that the

trial court erred in designating Kimberly as the residential parent on the child-

support calculation worksheet and erred in ordering Rick to pay child support

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without finding that it was in the best interest of the children. This court then

remanded the matter to the trial court “with instructions to determine if ordering

Father to pay Mother child support is in the best interest of the children and, if so,

to designate Father as the residential parent in calculating the pertinent child

support worksheet.” Frey v. Frey, 2007-Ohio-2991, 2007 WL 1731592, ¶ 37.

{¶ 7} On remand, the magistrate issued a decision finding that ordering

Rick to pay child support was in the best interest of the children. It is apparent

from the record that no additional evidence was taken prior to the issuance of the

magistrate’s decision on remand. Rick filed objections to the magistrate’s

decision, and the trial court adopted the decision.

{¶ 8} Rick appealed to this court for the second time. Frey v. Frey, 3d

Dist. No. 5-09-11, 2009-Ohio-5275, 2009 WL 3165582. On October 3, 2009, we

concluded that the trial court made no determination on whether there had been a

change of circumstances sufficient to warrant a modification in the child-support

order and reversed the trial court’s decision awarding Kimberly child support. Id.

at ¶ 15.

{¶ 9} On October 13, 2009, Rick filed a motion requesting the magistrate

to grant him a judgment against Kimberly for the amount he erroneously paid her

in child support over the past several years. Rick argued that since he has been

making his monthly payments of $300, plus processing fees, the Hancock County

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Child Support Enforcement Agency (“HCCSEA”) has collected and dispersed a

total of $13,519.16 to Kimberly. Based on this court’s decision finding that the

prior child-support order was made in error, Rick requested the court to issue him

a lump-sum repayment, plus statutory interest, for his overpayment to Kimberly.

Rick also requested that Kimberly be made subject to a “seek work” program

through HCCSEA, if the court found her to be unemployed or voluntarily

underemployed.

{¶ 10} On December 31, 2009, Rick filed a motion to modify his child-

support obligation. In the same motion, he also requested the trial court to

reimburse him for the funds he paid to Kimberly under its previous child-support

order.

{¶ 11} In the interim, Kimberly appealed this court’s decision in Frey v.

Frey, 3d Dist. No. 5-09-11, 2009-Ohio-5275, 2009 WL 3165582, to the Supreme

Court of Ohio. On February 10, 2010, the Supreme Court declined to accept the

case for review. The parties made continued efforts to resolve the overpayment

issue.

{¶ 12} On June 9, 2010, the trial court held a hearing on Rick’s motions. At

the hearing, the parties advised the court that they had resolved all the issues

pending at the time. The parties recited their agreement on the record and

submitted a proposed agreed judgment entry for the trial court’s review. On

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August 4, 2010, the trial court approved and adopted the parties’ agreement,

finding it to be “fair, equitable, and in the best interests of the children.”

{¶ 13} The August 4, 2010 agreed judgment entry outlined the following

orders:

1. All monies held in escrow by the Child Support Enforcement

Agency shall be released immediately to the Father, Rick Frey.

2. The Father’s current Child Support withholding shall be

terminated immediately.

3. The Mother, Kimberly Nigh, shall pay a lump sum to the

Father, Rick Frey, in the amount of $1,000.00, to be paid

immediately.

4. After the termination of the Father’s Child Support obligation

and upon receipt of the lump sum herein, Mother will owe $9,823.00

to Father for the overpayment of Child Support.

5. Mother shall pay child support to Father in the amount of

$356.57 per month, effective as of January 1, 2010. In addition,

Mother shall pay Father $72.00 per month towards the overpayment

she received. In addition, Mother shall pay any processing fees in

accordance with the Ohio Revised Code. All payments, including

processing fee[s] at the legal rate shall be payable through the Ohio

Office of Child Support. A copy of the Child Support calculations is

attached hereto.

6. Mother shall immediately establish an account with a financial

institution under the jurisdiction of the court and maintain in that

account funds sufficient to satisfy her child support obligation set

forth herein. Mother shall provide the Hancock County Child

Support Enforcement Agency information regarding the account and

shall take whatever steps necessary for child support payments to be

automatically withdrawn from said account.

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7. The Mother shall be subject to seek a work order [sic].

8. Court costs shall be divided equally between the parties.

{¶ 14} On November 8, 2010, HCCSEA filed a motion to show cause and a

petition for contempt, on Rick’s behalf, alleging that Kimberly had failed to pay

child support, as previously ordered by the trial court on August 4, 2010. On

January 19, 2011, the trial court held a hearing on the contempt matter. Kimberly

provided testimony concerning her efforts and ability to pay her child-support

obligation.

{¶ 15} On March 15, 2011, the trial court found that Kimberly had satisfied

the lump-sum payment of $1,000 to Rick, but had failed to make the monthly

child-support payments, without justification, as directed by the August 4, 2010

agreed judgment entry. Consequently, the trial court found Kimberly in contempt

of court because she failed to make the monthly child-support payments as ordered

by the trial court. The trial court ordered the following as a sanction for

Kimberly’s contempt of court.

It is further ordered that the Defendant is hereby sentenced to a term

of ten (10) days in the Hancock County Justice Center for violation

of the court’s order; however, this sentence is hereby suspended

upon the following conditions:

1. Defendant shall seek employment sufficient to earn a

minimum of $1,282.00 per month, which is the equivalent of a

salary at a minimum wage hourly rate of $7.40 for forty hours

per week.

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2. Until such time as the Defendant is employed and earns

$1,282.00 per month, the Defendant shall seek work and

complete the reporting forms issued by the HCCSEA and shall

return one completed form each week to her case manager at the

HCCSEA.

3. The Defendant shall immediately contact the HCCSEA

regarding any changes in her residence address or place of

employment.

4. The Defendant shall pay the child support as presently owed

on a monthly basis.

This matter shall be continued for further review upon the call of the

court. The Defendant shall pay all costs associated with this motion

within thirty (30) days of the filing of this entry.

{¶ 16} Kimberly now appeals the trial court’s finding of contempt, alleging

the following assignments of error.

Assignment of Error No. I

The trial court erred and abused its discretion when it held

defendant in contempt of court for violation of a previous order

because appellant was unable to pay yet made efforts to meet her

obligation.

Assignment of Error No. II

The trial court erred and abused its discretion when it

imposed upon appellant an order to obtain employment or provide

written verification of attempts to obtain full time, minimum wage

employment.

Assignment of Error No. III

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The trial court erred and abused its discretion when it

imposed upon appellant an order imposing penalties but no

opportunity to purge herself of the contempt charge.

{¶ 17} At the outset, we note that under Ohio law, “ʻ[c]ontempt of court

consists of two elements. The first is a finding of contempt of court and the

second is the imposition of a penalty or sanction, such as a jail sentence or fine.

Until both a finding of contempt is made and a penalty [is] imposed by the court,

there is not a final order. The mere adjudication of contempt is not final until a

sanction is imposed.’” Cooper v. Cooper (1984), 14 Ohio App.3d 327, 328-329,

471 N.E.2d 525, quoting Chain Bike v. Spoke ‘N Wheel, Inc. (1979), 64 Ohio

App.2d 62, 64, 410 N.E.2d 802. On appeal, HCCSEA contends that the trial

court’s order finding Kimberly in contempt of court is not a final, appealable order

because it imposed a suspended jail sentence, thereby not satisfying the second

element. We disagree. It is well within the authority of the trial court to suspend a

sentence to afford an accused contemnor an opportunity to purge himself of the

contempt. See generally State ex rel. Turner v. Bremen (1928), 118 Ohio St. 639,

163 N.E. 302; see also Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250,

253, 416 N.E.2d 610 (stating that a conditional prison sentence may be imposed

for civil contempt); Abernethy v. Abernethy, 8th Dist. No. 92708, 2010-Ohio-435,

2010 WL 457133, ¶ 37 (“The addition of the sentence, albeit, suspended, supplies

the second element rendering the order final”). Accordingly, we conclude that the

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trial court’s order finding Kimberly in contempt of court is a final, appealable

order.

First Assignment of Error

{¶ 18} In her first assignment of error, Kimberly argues that the trial court

abused its discretion in finding her in contempt of court. Contempt is defined in

general terms as disobedience of a court order. State ex rel. Corn v. Russo (2001),

90 Ohio St.3d 551, 554, 740 N.E.2d 265; see R.C. 2705.02(A). “It is conduct

which brings the administration of justice into disrespect, or which tends to

embarrass, impede or obstruct a court in the performance of its functions.”

Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815,

paragraph one of the syllabus.

{¶ 19} In the case sub judice, Kimberly does not dispute her disobedience

of the August 4, 2010 agreed judgment entry. However, she argues that she

cannot be held in contempt of court because she presented an affirmative defense

of her inability to pay the child-support obligation ordered by the trial court. A

prima facie case of contempt is established when the order is before the court

along with proof of the contemnor’s failure to comply with it. Dzina v. Dzina, 8th

Dist. No. 83148, 2004-Ohio-4497, 2004 WL 1902566. Inability to pay support is

a valid defense in a contempt proceeding. Courtney v. Courtney (1984), 16 Ohio

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App.3d 329, 334, 475 N.E.2d 1284. The party who failed to comply with the

court order to pay support bears the burden of proving an inability to pay. Pugh v.

Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. If a party makes a good-

faith effort to pay support, contempt is not justified. Courtney. When reviewing a

finding of contempt, an appellate court applies an abuse-of-discretion standard.

See State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249.

{¶ 20} On appeal, Kimberly essentially argues that her inability to pay her

child-support obligation is through no fault of her own. She also argues that she

has made efforts to comply with the trial court’s order by paying the $1,000 lump

sum to Rick, as required by the August 4, 2010 agreed judgment entry, and by

making five $20 installments towards her child-support obligation.

{¶ 21} At the January 19, 2011 contempt hearing, Kimberly testified that at

the time of the August 4, 2010 agreed judgment entry, she worked as a realtor for

ERA Noakes Realty Group. Kimberly testified that since the entry of the child-

support order, she had not earned any income as a realtor because she had not

participated in any real estate closings between August 2010 and the time of the

January 2011 contempt hearing. Kimberly explained that she started a part-time

job in December 2010, about a month prior to the contempt hearing, working for

Peterman & Associates doing research. There, she earned $12 an hour, but had

only worked 20 to 25 hours during the past two-week pay period. Kimberly

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explained that she previously worked with Peterman & Associates in 2009 and

that her hours were less in the winter months because there is a seasonal need for

her position at the company. Kimberly also testified that the she has tried to find

additional employment by answering ads and filling out applications online, but

has been unsuccessful in getting hired.

{¶ 22} Kimberly admitted that her husband provided for all her financial

needs, such as the mortgage payment, her car payment, and child care for their

eight-year-old daughter, who is the child from her current marriage and not subject

to the child-support order at issue.

{¶ 23} The evidence also demonstrates that payments towards Kimberly’s

child-support obligation were made in the amounts of $55.18 and $69.98 through

Kimberly’s employer on December 14 and 28, 2010. As previously mentioned,

Kimberly also paid five $20 installments toward her child-support obligation on

January 8, 2011. In reviewing the trial court’s judgment entry finding Kimberly in

contempt, the trial court determined that Kimberly had failed to prove the

affirmative offense of her inability to pay her child-support obligation.

{¶ 24} Kimberly argues that the fact that she earned no income as a realtor

between August 2010 and January 2011 is sufficient to prove her inability to pay

her child-support obligation. Kimberly also argues that the fact that she is

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working fewer hours at her part-time position because work is slower in the winter

months than in the warmer months is not within her control.

{¶ 25} However, the record demonstrates that Kimberly held the same

position as a realtor with the same company when the parties submitted the August

4, 2010 agreed judgment entry to the trial court. At the time Kimberly negotiated

this agreement with Rick, she was purportedly able to afford the payments stated

in the child-support order based upon her employment status at the time.

However, rather than obtain other employment or contact HCCSEA about her

alleged financial hardship, Kimberly simply failed to make any payments toward

her ongoing child-support obligation for nearly four months, following the entry of

the August 4, 2010 child-support order until December 2010. Only after

HCCSEA filed its petition for contempt did Kimberly obtain other, part-time

employment at Peterman & Associates in mid-December of 2010 and

subsequently make the nominal payments previously mentioned.

{¶ 26} Even though Kimberly testified that she had attempted to find other

employment during this time, the trial court is still free to determine her credibility

on the issue and assign weight to her testimony accordingly. It is evident that the

trial court was not persuaded by Kimberly’s testimony that her inability to comply

with the court’s child-support order was through no fault of her own, but rather

that these were circumstances within her control—i.e., that Kimberly was

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voluntarily underemployed. See Piciacchia v. Piciacchia, 5th Dist. No.

2006CA00286, 2007-Ohio-2328, 2007 WL 1413216, ¶ 28 (stating that trial court

did not err in finding former husband voluntarily underemployed, which negated

his affirmative defense of inability to pay, because the husband did not seek

alternative employment during slow work periods).

{¶ 27} Kimberly also argues that the efforts she made to pay her child-

support obligation precludes the trial court from finding her in contempt of court.

Kimberly attributes her satisfaction of the $1,000 lump-sum payment as evidence

of her efforts. However, this lump sum was negotiated by the parties as a payment

to be made immediately upon the signing of the August 4, 2010 agreed judgment

entry. Moreover, the trial court was free to assess whether Kimberly’s gesture in

making the $100 payment one week prior to the contempt hearing constituted a

good-faith effort to pay her child-support obligation.

{¶ 28} Based on the evidence before us, we find that the trial court did not

err in finding Kimberly in contempt of its August 4, 2010 agreed judgment entry.

Kimberly’s first assignment of error is overruled.

Second and Third Assignments of Error

{¶ 29} We elect to discuss Kimberly’s second and third assignments of

error together because they are interrelated.

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{¶ 30} In her remaining assignments of error, Kimberly challenges the trial

court’s contempt sanction. Specifically, Kimberly maintains that the trial court

abused its discretion (1) when it suspended her ten-day jail sentence on the

conditions that she obtain full-time employment and provide verification to

HCCSEA of her attempts to obtain full-time employment and (2) when it imposed

penalties upon her without providing her an opportunity to purge the contempt.

{¶ 31} It is undisputed by the parties that Kimberly was found to be in civil

contempt for her disobedience of the August 4, 2010 agreed judgment entry in

failing to pay her child-support obligation. “Civil contempt renders punishment

that is remedial or coercive and for the benefit of the complainant. Prison

sentences are conditional.” Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d

250, 253, 416 N.E.2d 610. Any sanction for civil contempt must allow the party

who is in contempt an opportunity to purge the contempt. Carroll v. Detty (1996),

113 Ohio App.3d 708, 712, 681 N.E.2d 1383.

{¶ 32} In the present case, the trial court imposed a ten-day jail sentence on

Kimberly as a contempt sanction. However, the trial court suspended the sentence

subject to Kimberly’s compliance with four conditions. The first two conditions

in essence require Kimberly to obtain a full-time job making at least minimum

wage and to submit weekly verifications to HCCSEA of her efforts to obtain such

employment until she is hired. The third condition required Kimberly to inform

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HCCSEA of any residence or employment change, and the fourth condition

mandated that Kimberly “pay the child support as presently ordered on a monthly

basis.”

{¶ 33} After our review of these conditions, we have three specific

concerns. First, it is not clear from the language used in the judgment entry

whether these four conditions are conditions on the ten-day jail sentence or

whether they are an attempt to create an opportunity for Kimberly to purge the

contempt. Notably, the trial court did not use the word “purge” or otherwise

characterize its decision in terms of an opportunity to purge anywhere in its

judgment entry when imposing the contempt sanction.

{¶ 34} Second, we find the condition simply requiring Kimberly to “pay the

child support as presently ordered on a monthly basis” to be ambiguous because

there are at least three components of the August 4, 2010 child-support order that

are not specifically identified in this condition. In particular, the “child-support”

order at issue specifies two distinct payments to be made by Kimberly to

HCCSEA each month—Kimberly’s ongoing monthly child-support obligation of

$356.57 and Kimberly’s obligation to pay $72 a month for Rick’s prior

overpayment to her in child support. In addition to these two payments, there is a

third component to the child-support order, which is the arrearage for the ongoing

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monthly child support in the amount of $356.57 that Kimberly has failed to pay

from January 1, 2010 to the contempt hearing on January 16, 2011.

{¶ 35} The trial court did not delineate which of these components of the

child-support order Kimberly must comply with in order to satisfy the fourth

condition. This distinction is significant because several appellate courts have

held that a purge order may provide for suspension of a jail sentence on condition

that the contemnor pays an arrearage; however, those courts have also held that a

purge order may not regulate future conduct by conditioning the suspension of a

jail sentence on the contemnor making payments on current support obligations.

See, e.g., Marden v. Marden (1996), 108 Ohio App.3d 568, 571, 671 N.E.2d 331;

Tucker v. Tucker (1983), 10 Ohio App.3d 251, 252, 461 N.E.2d 1337; Kungle v.

Kungle, 5th Dist. No. 2006CA00367, 2007-Ohio-4929, 2007 WL 2753175.

Accordingly, even if we were to construe the fourth condition as an opportunity to

purge, it would not be in accord with the decisions of other appellate courts to the

extent that it merely required Kimberly to pay her current ongoing child-support

obligation.

{¶ 36} Third, we find no error in the trial court’s decision to require

Kimberly to seek work at a minimum-wage level for two reasons: (1) The trial

court determined that Kimberly’s previous inability to meet her monthly child-

support obligation was within her control and (2) Kimberly was on notice that she

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may be subject to a seek-work order because it was one of the terms she agreed to

in the August 4, 2010 agreed judgment entry. However, in terms of an

opportunity to purge, we find it problematic that there is no deadline for her

compliance set forth in the trial court’s judgment entry. Notably, none of the

conditions established by the trial court contain a time limitation for Kimberly’s

compliance. In other words, it is not clear exactly how long Kimberly must

comply with the directives set out in the judgment entry until she is deemed to be

in compliance with the conditions—or alternatively is deemed to have purged her

contempt.

{¶ 37} In sum, given the cumulative effect of our concerns outlined above,

we find that it is unclear whether the trial court provided Kimberly with a valid

and ascertainable opportunity to purge its finding of civil contempt. Therefore, we

must conclude that in the absence of a clear opportunity to purge the contempt, the

trial court erred in imposing the contempt sanctions as they are presently stated.

For the reasons previously discussed and to this extent only, Kimberly’s second

and third assignments of error are sustained.

{¶ 38} Based on the foregoing the judgment of the Hancock County Court

of Common Pleas is affirmed in part and reversed in part, and the cause is

remanded for further proceedings consistent with this opinion.

Judgment affirmed in part

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and reversed in part,

and cause remanded.

ROGERS, P.J., and WILLAMOWSKI, J., concur in judgment only.

ROGERS, Presiding Judge, concurring separately.

{¶39} I concur with the majority that this case must be reversed, but I do

so for different reasons.

{¶40} In her first assignment of error Kimberly has argued an inability to

pay. However, the amounts due were negotiated by her and her counsel. The

amounts were not an arbitrary figure imposed by the trial court. She negotiated

the amounts and assured the trial court and Rick that she could and would pay

according to the negotiated agreement, and by that agreement she avoided a

pending motion for contempt. I do not believe that the alleged change in

circumstances was anything she did not or could not have foreseen when she

negotiated her way out of the prior motion for contempt. Therefore, I concur that

the finding of contempt was proper and would overrule the first assignment of

error.

{¶41} The second and third assignments of error are sufficiently related to

be considered together. The proper procedure in civil-contempt proceedings,

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after making a finding of contempt, is to place the contemnor on notice of the

intended sanction or penalty, and then the trial court must allow the contemnor an

opportunity to purge the contempt, that is, to do what was ordered or to eliminate

a deficiency.

{¶42} Some might read the trial court’s judgment entry imposing a

suspended sentence as an inartfully stated opportunity to purge. Treated as such,

this would result in a nonfinal order, and we would be required to dismiss this

appeal. However, I would hold that the procedure followed by the trial court was

improper and reverse with instructions to allow the contemnor the opportunity to

purge.

{¶43} It is apparent in this case that the trial court made a proper finding of

contempt, but then used the wrong procedure to impose a sentence. The trial

court here announced a sentence and then suspended the sentence on certain

conditions. The result is not the same as an opportunity to purge, particularly

when the conditions imposed have no relationship to the deficiency that gave rise

to the contempt. When the contempt is based on failure to pay support, the purge

must relate to paying what has not been paid, not to paying in the future or doing

other acts in the future. For these reasons, I would sustain the appellant’s second

and third assignments of error.

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{¶44} Accordingly, a reversal is necessary in order for the trial court to put

the appellant on notice of a potential penalty and for the trial court to give the

appellant an opportunity to purge on conditions that properly relate to the acts of

contempt.

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