Guy v. Shorey

[Cite as Guy v. Shorey, 2019-Ohio-977.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 106923

AMY GUY, F.K.A. SHOREY

PLAINTIFF-APPELLEE

vs.

JAMES D. SHOREY

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Domestic Relations Division

Case No. DR-15-359099

BEFORE: Handwork, J.,* S. Gallagher, P.J., and Keough, J.

RELEASED AND JOURNALIZED: March 21, 2019

ATTORNEY FOR APPELLANT

Brent L. English

Law Offices of Brent L. English

The 820 Building, 9th Floor

820 Superior Avenue, West

Cleveland, OH 44113

ATTORNEY FOR APPELLEE

Manav H. Raj

Rieth & Antonelli & Raj

1406 West 6th Street, Second Floor

Cleveland, OH 44114

PETER M. HANDWORK, J.:*

{¶1} Amy Guy, f.k.a. Shorey, and James Shorey were divorced according to the terms of

a separation agreement that the court incorporated into the divorce decree. As relevant to this

appeal, the parties agreed that James would retain the house free and clear of any claim by Amy,

provided he obtained refinancing within 120 days and removed her name from mortgage liability.

The parties also agreed that if James failed to obtain refinancing within that time frame, the

property would be immediately listed for sale by a realtor of Amy’s choosing and “sold

post-haste at a mutually agreeable price as recommended by the realtor.” James not only failed

to obtain financing, he admitted that he did not actually file an application for refinancing

because he claimed that prospective lenders told him that he had to have full-time employment

(at the time, he was starting a company) as a condition of acceptance. Amy filed a motion for

specific performance and asked that James be held in contempt.

{¶2} A magistrate conducted a hearing on the motion and found that although James had

actually listed the house for sale after failing to obtain refinancing, he did so on his own, and not

within 120 days after the separation agreement was reduced to judgment. The magistrate also

found that James listed the house without consulting Amy as required by the divorce decree.

The magistrate concluded that James be held in contempt and allowed to purge the contempt by

listing the house for sale with a realtor of Amy’s choosing, at a price recommended by the

realtor. The magistrate granted Amy’s realtor permission to speak with Amy about all aspects of

the sale, including the listing price. Finally, the magistrate ordered James to pay $5,500 towards

Amy’s attorney fees. The court approved and adopted the magistrate’s decision over James’s

objections.

I. Evidence of Contempt

{¶3} A contempt finding will not be disturbed on appeal unless the court abused its

discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981).

“When appellate review of a contempt adjudication entails an inquiry into the weight of the

evidence to sustain the judgment, the applicable standard of review turns upon the nature of the

contempt decree.” ConTex, Inc. v. Consol. Technologies, Inc., 40 Ohio App.3d 94, 95, 531

N.E.2d 1353 (1st Dist.1988). Alleged contempt of a divorce decree is a civil contempt, Ganelli

v. Ganelli, 8th Dist. Cuyahoga No. 72757, 1998 Ohio App. LEXIS 2596, 9 (June 11, 1998), and

we apply the usual rules regarding the weight of the evidence: we consider whether “the finder of

fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must

be reversed and a new trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

972 N.E.2d 517, ¶ 20. In doing so, we “make every presumption in favor of the finder of fact,

and construe the evidence, if possible, to sustain the judgment of the trial court.” Id. at ¶ 21.

{¶4} In Article 3.01 of the settlement agreement, the parties agreed that James would

keep the marital residence free and clear of any claim by Amy, and:

As such, Husband shall refinance said obligation within one hundred twenty (120)

days of the execution of this Agreement thereby releasing Wife from any and all

financial liability thereon. Concurrent with the execution of this Agreement,

Husband shall remit to Wife the sum of Ten Thousand Dollars ($10,000.00) to

Wife as and for Division of Property herein.

Concurrent with the execution of this Agreement, Wife shall execute a quit claim

deed transferring all her right[,] title[,] and interest in said property to Husband,

and Husband shall pay the mortgage, line of credit, real estate taxes, utilities and

all other expenses relative to said parcel of real estate, and he shall indemnify and

save the Wife absolutely harmless thereon.

In the event that Husband fails to refinance said property within the prescribed

time period or is more than thirty (30) days late on his financial obligation

hereinabove, the residence shall be immediately listed for sale on the market with

an agent of Wife’s selection from Howard Hanna and sold post-haste at a

mutually agreeable price as recommended by the realtor.

{¶5} The court reduced the separation agreement to judgment in a divorce decree filed

on May 26, 2016. As required by the terms of the separation agreement, Amy filed a quitclaim

deed and renounced her interest in the property. James, who desired to retain the house,

initiated discussions with a bank and two savings and loan associations about refinancing the

house. James acknowledged, at the time, that his consulting business did not provide him with

the income necessary to qualify for refinancing. He said that all three financial institutions told

him that he would not be approved for refinancing, so he did not formally file an application for

refinancing and risk damaging his credit rating. Nevertheless, James testified that he was in the

process of expanding his consulting business and anticipated that income resulting from that

expansion would qualify him for refinancing.

{¶6} When James did not obtain financing within 120 days from entry of the divorce

decree, Amy filed a motion to have James show cause why he should not be held in contempt for

failing to list the house for sale consistent with the terms of the separation agreement. James

then listed the house for sale within the month, albeit not with a realtor of Amy’s choosing as

required by the separation agreement. After the house had been on the market for six months

without any offers, the realtor recommended that James lower the price. James refused to lower

the price.

{¶7} From this evidence, the magistrate could rationally conclude that James violated the

separation agreement. James admittedly failed to obtain refinancing within 120 days after entry

of the divorce decree. This failure, whether or not intentional on his part, meant that the house

had to be immediately listed for sale by a realtor of Amy’s choosing and sold at a mutually

agreeable price as recommended by the realtor. James did list the house for sale, but did not use

a realtor of Amy’s choosing. His violation of the separation agreement was manifest.

{¶8} It is true that Amy did not subsequently object to James’s choice of realtor, but

James’s decision to hire a realtor of his own choosing — an act that occurred after Amy filed her

show cause motion — was a breach of the separation agreement and thus constituted a basis for

finding James in contempt. But even if we assume without deciding that Amy’s failure to object

to James’s choice of realtor constituted a waiver, the fact remains that competent, credible

evidence supported the court’s conclusion that James did not abide by the “post-haste” timeline

for selling the house.

{¶9} At the time of the contempt hearing, the house had been on the market for 11

months and remained unsold. In fact, we were informed at oral argument in this appeal — a

date over two years from when the house had been listed for sale — that the house has yet to be

sold. James’s realtor testified that the sale price of the house should be lowered, but James

refused to lower the price. Notably, James testified and candidly acknowledged his desire to

keep the house. The magistrate could reasonably conclude that James’s desire to keep the house

suggested a motivation for his rejection of a lowered listing price that would spur the sale.

Eleven months on the market fails to meet the “post-haste” timeline for selling the house, even

acknowledging that term is inherently imprecise.

{¶10} James argues that he lacked any intent to violate the divorce decree, particularly

with respect to Amy. He maintains that Amy was fully aware that he had listed the house but

never objected that he had done so without first letting her choose the realtor or agree to the

listing price used by his realtor.

{¶11} James’s arguments are irrelevant. “Contempt of court is defined as disobedience

of an order of a court.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 56, 271 N.E.2d 815

(1971), paragraph one of the syllabus. Whether “the contemnor acted innocently and not in

intentional disregard of a court order is not a defense to a charge of civil contempt.” Id. at

paragraph three of the syllabus. See also Pugh v. Pugh, 15 Ohio St.3d 136, 136, 472 N.E.2d

1085 (1984), paragraph one of the syllabus (“Proof of purposeful, willing or intentional violation

of a court order is not a prerequisite to a finding of contempt.”). The court did not err by finding

James in contempt of the divorce decree.

II. Purge Conditions

{¶12} As a condition for purging James’s contempt, the court ordered that he list the

house with a realtor chosen by Amy and “at the price recommended by” the realtor. James

argues that allowing the listing to be at a price recommended by the realtor is an impermissible

purge condition because it alters the divorce decree term that the house be listed at “a mutually

agreeable price as recommended by the realtor.”

{¶13} “A property settlement provision contained in a separation agreement, which is

subsequently incorporated into a divorce decree * * * is enforceable by contempt proceedings.”

Harris v. Harris, 58 Ohio St.2d 303, 304, 390 N.E.2d 789 (1979), paragraph one of the syllabus.

When a party is in contempt or disobedience of a court order, the contemnor must be given a

chance to purge the contempt. Cleveland v. Paramount Land Holdings, L.L.C., 8th Dist.

Cuyahoga Nos. 96180, 96181, 96182, and 96183, 2011-Ohio-5382, ¶ 12.

{¶14} A court may employ judicial sanctions for civil contempt to coerce a party to

comply with lawful orders. C.G. v. C.L., 8th Dist. Cuyahoga No. 90341, 2008-Ohio-3135, ¶ 24.

This court reviews such sanctions for an abuse of discretion. Id.

A sanction for civil contempt must allow the contemnor the opportunity to purge

himself or herself of contempt. In re Purola (1991), 73 Ohio App.3d 306, 312,

596 N.E.2d 1140. The trial court abuses its discretion in ordering purge

conditions which are unreasonable or where compliance is impossible. Id. at

313. The party who is in contempt bears the burden of presenting sufficient

evidence at the contempt hearing to establish that the trial court’s purge conditions

are unreasonable or impossible for him to satisfy. Marx v. Marx, 8th Dist.

Cuyahoga No. 82021, 2003-Ohio-3536.

Id. at ¶ 25.

{¶15} The goal of Amy’s motion to show cause as to why James should not be held in

contempt of court was to compel his obedience to the terms of the separation agreement

regarding his obligation to refinance the house. The court granted the motion to show cause

under terms meant to coerce James’s obedience to the separation agreement. State ex rel. Corn

v. Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d 265 (2001). James argues that the purge

condition was impermissible because it deviates from the separation agreement. However, he

has not demonstrated that the purge condition was unreasonable or impossible for him to satisfy.

Accordingly, we overrule this assignment of error. III. Attorney Fees

{¶16} The court ordered James to pay $5,500 for Amy’s attorney fees in prosecuting the

contempt proceeding. James concedes that the court had the discretion to include reasonable

attorney fees as part of the costs taxed to a defendant found in contempt, but maintains that he

was not in contempt, so no fees should have awarded. As discussed in part I of this opinion, the

court validly found James was in contempt of the separation agreement. Because James’s

argument relating to attorney fees is wholly based on the refuted assertion that he was not in

contempt, we summarily overrule this assignment of error.

{¶17} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the domestic relations

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.

______________________________________________

*PETER M. HANDWORK, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;

SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION

*(Sitting by Assignment: Judge Peter M. Handwork, retired, of the Sixth District Court of

Appeals).

SEAN C. GALLAGHER, P.J., CONCURRING:

{¶18} I concur with the majority decision. I write to further address James’s challenge

to the purge conditions.

{¶19} James argues that the trial court abused its discretion by imposing purge

conditions that altered the terms of the divorce decree. Not only does he challenge the

requirement that the listing price be established based upon the realtor’s recommendation, but

also, he challenges other requirements that were imposed.

{¶20} A trial court is permitted to order purge conditions to effectuate compliance with

the property division in a divorce decree. Chasko v. Chasko, 8th Dist. Cuyahoga No. 93314,

2010-Ohio-3599, ¶ 24-25. James’s contempt was subject to the following purge conditions:

1. Maintaining a listing of the property with a licensed real estate agent,

chosen by Amy Guy;

2. Listing the property at the price recommended by the listing real estate

agent;

3. Granting permission to the listing real estate agent to speak to Amy Guy

with regard to all aspects of the sale of the property including but not

limited to the listing price of the home;

4. Maintaining the property in saleable condition both as to the exterior and

the interior of the residence;

5. Reimbursing Amy Guy for her attorney fees in the amount of $5,500.00;

The trial court’s order also imposed certain additional requirements aimed at relieving Amy from

the mortgage liability, and awarded Amy $5,500 for her attorney fees, which were subject to

reimbursement by James.

{¶21} Contrary to James’s argument, the purge conditions imposed by the trial court were

not an impermissible modification of the divorce decree. James was found to be in contempt for

failing to comply with the court’s prior orders pertaining to the marital residence. As stated by

the trial court, “Mr. Shorey has a Court ordered obligation to either refinance the Fairmount

property to remove Ms. Guy’s name from the liability or to sell the property to remove Ms. Guy’s

name from the liability.” The trial court was permitted to impose purge conditions to effectuate

James’s compliance with the property division under the divorce decree. See Chasko at ¶ 24-25.

“The party who is in contempt bears the burden of presenting sufficient evidence at the

contempt hearing to establish that the trial court’s purge conditions are unreasonable or

impossible for him to satisfy.” Marx, 8th Dist. Cuyahoga No. 82021, 2003-Ohio-3536, at ¶ 22.

{¶22} James argues that the condition that the listing price be based upon the realtor’s

recommendation is not contained in the divorce decree. However, the record reflects that James

acted to impede the sale of the marital home and was unwilling to lower the sale price of the

home. The purge condition imposed by the trial court allows for the expedited sale of the home

and is consistent with enforcing the property division under the divorce decree. James also

objects to the condition that he keep the property in “saleable condition.” Contrary to his

argument, this condition already was required under the divorce decree. James further

challenges the additional requirement involving application of the proceeds from the sale of the

adjacent lot to any remaining mortgages, claiming this is an impermissible attempt to regulate

future conduct. However, this requirement is consistent with relieving Amy of her legal

obligations associated with the marital residence. Finally, he objects to the purge condition

requiring him to reimburse Amy for her attorney fees, but he fails to cite any authority to support

this argument.

{¶23} James has not demonstrated that any of the purge conditions are unreasonable or

impossible to satisfy. Because there was no abuse of discretion by the trial court, its decision

should be affirmed.