# State ex rel. Yost, Atty. Gen. v. Anthony

> Ohio Court of Appeals · September 7, 2022 · 2022 Ohio 3188

URL: https://www.frixlaw.com/law-library/cases/8205607

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** September 7, 2022
- **Citations:** 2022 Ohio 3188
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Abele
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8205607

## Opinion text

[Cite as State ex rel. Yost, Atty. Gen. v. Anthony, 2022-Ohio-3188.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

STATE OF OHIO EX REL.
DAVID YOST, ATTORNEY :
GENERAL,
:
Plaintiff-Appellee, Case No. 22CA2
:
vs.
:
MARK ANTHONY, et al., DECISION AND
JUDGMENT ENTRY

:
Defendants-Appellants.
:
________________________________________________________________

APPEARANCES:

Mary C. Ansbro, Columbus, Ohio, for appellants.

Michael E. Idzkowski, Timothy J. Kern, and Allen M. Vender,
Columbus, Ohio, for appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-7-22
ABELE, J.

{¶1} This is an appeal from a Hocking County Common Pleas

Court judgment that found Mark Anthony, defendant below and

appellant herein, and related entities, in contempt of a court

order.1

1
In general, “a court order finding a party in contempt and
imposing a sentence conditioned on the failure to purge is a
final, appealable order on the issue whether the party is in
contempt of court.” Docks Venture, L.L.C. v. Dashing Pacific
HOCKING, 22CA2

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
[BY] FAILING TO GIVE DEFENDANT MARK ANTHONY
A CONTINUANCE TO OBTAIN COUNSEL OF HIS
CHOICE.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
[BY] FAILING TO SCREEN DEFENDANT MARK
ANTHONY FOR APPOINTED COUNSEL.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN MAKING THE PURGE CONDITION COMPLAINCE
[SIC] WITH THE PAYMENT PLAN.”

{¶3} On July 19, 2013, the State of Ohio, through its

Attorney General, filed a complaint for injunctive relief and

civil penalties based upon environmental violations that

appellant and related entities had committed. The parties later

resolved the allegations via an April 11, 2017 consent order.

The consent order required appellant and the related entities to

pay a $100,000 civil penalty.

{¶4} On September 27, 2021, appellee filed a motion for a

judgment debtor examination under R.C. 2333.09. The trial court

Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035,
¶ 23. Additionally, “a contemnor may have an additional appeal
on the question whether the purge conditions have been met
following execution of sentence on the failure to purge.” Id.
3
HOCKING, 22CA2

granted the motion and set the matter for an October 21, 2021

hearing.

{¶5} On October 6, 2021, appellee filed a motion to show

cause and to hold appellant (and related entities) in contempt

for the failure to abide by the consent order. In particular,

appellee alleged that, since the date of the consent order,

appellant and related entities made only one $1,500 payment.

Appellee asked the court to schedule a hearing to allow

appellant and related entities to show cause why they should not

be held in contempt of court.

{¶6} Subsequently, the trial court entered an order that

directed appellant (as the authorized representative of the

related entities) to appear before the court and to show cause

why appellant should not be found in contempt of the consent

order. The court issued a summons and that notified appellant

(1) of the date and time of the show-cause hearing, (2) of his

right to counsel and that he could apply for a public defender

or court-appointed counsel, (3) that the court could refuse to

grant appellant a continuance at the time of the hearing for the

purpose of obtaining counsel if appellant failed to make a good

faith effort to retain counsel or to obtain a public defender,

and (4) of the potential sanctions that the court could impose.
4
HOCKING, 22CA2

{¶7} On November 8, 2021, appellant was successfully served

with the summons and, on December 2, 2021, the trial court

scheduled the contempt hearing to be held on December 20, 2021.

{¶8} On December 20, 2021, appellant filed a written motion

to continue the hearing. Appellant stated that after he

received the notice to appear, he contacted his counsel, Eugene

Battisti, but could not reach him. Appellant claimed that

Battisti later returned appellant’s call, but Battisti informed

appellant that he would be unable to attend the contempt

hearing. Appellant asserted that Battisti had agreed to

represent appellant and would be available in mid to late

January. Appellant thus requested the court to continue the

matter until Battisti could appear.

{¶9} After consideration, the trial court overruled

appellant’s motion for a continuance. The court stated that (1)

appellant had been served with the contempt motion six weeks

earlier, on November 8, 2021, and (2) on December 2, 2021 the

court sent notice of the hearing date to appellant. The court

found that appellant thus had sufficient notice of the hearing

date and adequate time to retain an attorney to represent him at

the contempt hearing. Consequently, the court overruled his

motion.
5
HOCKING, 22CA2

{¶10} At the December 20, 2021 contempt hearing, appellee

presented evidence that (1) appellant agreed to the April 11,

2017 consent order that required him to pay $100,000 pursuant to

a schedule, and (2) appellant has made one $1,500 payment.

{¶11} Appellant, appearing pro se, asserted that he does not

have the income to pay the amount owed under the consent order.

He also stated that he would like his attorney to be present, “I

want legal representation, but we’re marching forward. I don’t

know how to proceed with it all.” Appellant also declined the

opportunity to be sworn in and to testify, but instead opted to

present an argument. During his argument, he stated, “Inability

to pay is not contempt of court.”

{¶12} Appellee advised the court that it did not oppose

allowing appellant to present an argument. Appellee explained,

however, that if appellant claims inability to pay, appellee

wanted an opportunity to cross-examine appellant. The court

stated that it would treat appellant’s inability to pay as an

argument.

{¶13} Appellant also suggested that the trial court hold a

judgment debtor hearing to consider appellant’s ability to pay.

Appellee stated that the parties attempted to schedule a

judgment debtor hearing a few months earlier, but appellant

“ignored” the notice. Appellee further stated that it intended
6
HOCKING, 22CA2

to request a judgment debtor hearing in the future if the court

finds appellant in contempt and appellant fails to pay as

ordered.

{¶14} On December 30, 2021, the trial court found appellant

and the other defendants in contempt for the failure to pay the

amounts due under the consent order. The court sanctioned

appellant to 30 days in jail, but stated that he could purge the

contempt and avoid jail by paying $5,000 within 30 days and

paying $5,000 per quarter until the entire amount is satisfied.

This appeal followed.

I

{¶15} In his first assignment of error, appellant asserts

that the trial court erred by failing to continue the contempt

hearing so that he could obtain counsel of his choosing.

Appellant argues that the court’s action violated his

constitutional right to counsel.

{¶16} Appellee, on the other hand, contends that the trial

court did not abuse its discretion by denying appellant’s motion

to continue the contempt hearing. Appellee points out that

appellant had six weeks to obtain counsel to represent him and

that he failed to do so. Appellee thus claims that appellant

cannot complain on appeal that the trial court wrongly denied
7
HOCKING, 22CA2

his motion to continue and wrongly deprived him of any alleged

right to counsel.

{¶17} “The determination whether to grant a continuance is

entrusted to the broad discretion of the trial court.” State v.

Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶

147, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078

(1981), syllabus; accord State v. Myers, 154 Ohio St.3d 405,

2018-Ohio-1903, 114 N.E.2d. 1138, ¶ 92. Consequently, “‘[a]n

appellate court must not reverse the denial of a continuance

unless there has been an abuse of discretion.’” State v. Jones,

91 Ohio St.3d 335, 342, 744 N.E.2d 1163 (2001), quoting Unger,

67 Ohio St.2d at 67; e.g., In re C.M., 4th Dist. Athens No.

17CA16, 2017-Ohio-9037, ¶ 40; In re A.S., 4th Dist. Pike No.

16CA878, 2017-Ohio-1166, ¶ 43.

{¶18} “‘[A]buse of discretion’ [means] an ‘unreasonable,

arbitrary, or unconscionable use of discretion, or * * * a view

or action that no conscientious judge could honestly have

taken.’” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–1966,

15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,

2008–Ohio–4493, 894 N.E.2d 671, ¶ 23. “An abuse of discretion

includes a situation in which a trial court did not engage in a

‘“sound reasoning process.”’” State v. Darmond, 135 Ohio St.3d

343, 2013–Ohio–966, 986 N.E.2d 971, ¶ 34, quoting State v.
8
HOCKING, 22CA2

Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, ¶

14, quoting AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). The abuse-of-discretion standard is deferential and

does not permit an appellate court to simply substitute its

judgment for that of the trial court. Darmond at ¶ 34.

{¶19} A trial court that is considering a motion to continue

should “[w]eigh[] against any potential prejudice to a defendant

* * * concerns such as a court’s right to control its own docket

against the public’s interest in the prompt and efficient

dispatch of justice.” Unger, 67 Ohio St.2d at 67. A court also

should consider:

the length of the delay requested; whether other
continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is
for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to
the request for a continuance; and other relevant
factors, depending on the unique facts of each case.

Id. at 67–68; accord State v. Conway, 108 Ohio St.3d 214, 2006–

Ohio–791, 842 N.E.2d 996, ¶ 147; State v. Jordan, 101 Ohio St.3d

216, 2004–Ohio–783, 804 N.E.2d 1, ¶ 45.

{¶20} An appellate court that is reviewing whether a trial

court abused its discretion by denying a motion to continue

applies “a balancing test” that recognizes “all [of] the
9
HOCKING, 22CA2

competing considerations.” Unger, 67 Ohio St.2d at 67.

Moreover, we observe that “‘[t]here are no mechanical tests for

deciding when a denial of a continuance is so arbitrary as to

violate due process. The answer must be found in the

circumstances present in every case, particularly in the reasons

presented to the trial judge at the time the request is

denied.’” Id., quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84

S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Broom, 40 Ohio St.3d

277, 288, 533 N.E.2d 682 (1988) (“Obviously, not every denial of

a continuance constitutes a denial of due process.”).

Furthermore, the complaining party “must show how he was

prejudiced by the denial of the continuance before there can be

a finding of prejudicial error.” Broom, 40 Ohio St.3d at 288.

{¶21} In the case sub judice, we do not believe that the

trial court abused its discretion by overruling appellant’s

motion to continue the contempt hearing. Instead, we believe

that the trial court reasonably could have determined that

appellant had sufficient notice of the hearing and had ample

time to obtain counsel. The court noted that appellant received

service of the summons on November 8, 2021. The summons advised

appellant that (1) he had a right to counsel, (2) he had a right

to appointed counsel if indigent, and (3) the court may refuse

to grant a continuance at the time of the hearing if appellant
10
HOCKING, 22CA2

fails to make a good faith effort to obtain counsel.2 The court

also observed that on December 2, 2021, the court issued a

2
We observe that the summons in the case sub judice appears
to be drawn from language in R.C. 2705.031(C)(1) through (4).
Those provisions apply in failure-to-pay child and spousal
support cases and state as follows:

(C) In any contempt action initiated pursuant to
division (B) of this section, the accused shall appear
upon the summons and order to appear that is issued by
the court. The summons shall include all of the
following:
(1) Notice that failure to appear may result in the
issuance of an order of arrest, and in cases involving
alleged failure to pay support, the issuance of an order
for the payment of support by withholding an amount from
the personal earnings of the accused or by withholding
or deducting an amount from some other asset of the
accused;
(2) Notice that the accused has a right to counsel,
and that if indigent, the accused must apply for a public
defender or court appointed counsel within three
business days after receipt of the summons;
(3) Notice that the court may refuse to grant a
continuance at the time of the hearing for the purpose
of the accused obtaining counsel, if the accused fails
to make a good faith effort to retain counsel or to
obtain a public defender;
(4) Notice of the potential penalties that could be
imposed upon the accused, if the accused is found guilty
of contempt for failure to pay support or for a failure
to comply with, or an interference with, a parenting
time or visitation order or decree[.]

We do not find it necessary to discuss whether these same
requirements apply in a civil-contempt proceeding that does not
involve a failure to pay support. We simply note that the
summons that the trial court issued to appellant appears to
mirror most of the same language that appears in R.C.
2705.031(C)(1) through (4), and that including this language
appears to satisfy the Due Process Clause. See generally Turner
v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011);
11
HOCKING, 22CA2

notice that the contempt hearing would be held on December 20,

2021. This notice further stated that “all parties and counsel

shall appear.”

{¶22} Thus, our review of the record reveals that

approximately six weeks before the contempt hearing, the court

notified appellant of his right to counsel and the potential

consequences for the failure to have counsel present at the

contempt hearing (i.e., the court could deny a motion to

continue based upon appellant’s failure to obtain counsel in

time for the hearing). Appellant claimed that he attempted to

retain private counsel for the hearing, but appellant did not

explain why he could not have retained alternate counsel or

could not have requested a continuance before than the date of

the contempt hearing. Under these circumstances, we are unable

to conclude that the trial court’s denial of appellant’s motion

to continue the contempt hearing to obtain counsel constitutes

an abuse of discretion.

{¶23} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d
297.
12
HOCKING, 22CA2

{¶24} In his second assignment of error, appellant asserts

that the trial court erred by failing to inquire whether

appellant may have been entitled to appointed counsel.

Appellant points out that he alleged that he did not have the

ability to pay the balance due under the $100,000 consent order

and his claimed inability to pay indicates that the trial court

should have sua sponte considered appellant’s eligibility for

appointed counsel.

{¶25} Initially, we observe that at no time did appellant

request the trial court to appoint counsel to represent him in

the contempt proceeding, even though the summons that appellant

received explicitly informed him that he had a right to

appointed counsel if indigent. Furthermore, appellant did not

state that he had an inability to obtain counsel. In fact,

appellant claimed the opposite. Appellant informed the trial

court that he had contacted a private attorney and that this

attorney had agreed to represent appellant, but was unavailable

on the date of the contempt hearing. State v. Bush, 97 Ohio

App.3d 20, 25, 646 N.E.2d 193 (4th Dist.1994) (concluding that

defendant waived right to counsel when he “unambiguously told

the court that he was able to obtain counsel”).

{¶26} Under the circumstances present in the case sub

judice, we believe that appellant forfeited the right to
13
HOCKING, 22CA2

challenge on appeal the trial court’s failure to inquire into

appellant’s indigency and whether he qualified for appointed

counsel. See In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899,

951 N.E.2d 398, ¶ 18 (applying plain-error review to claim

regarding appointment of independent counsel for child in

dependency proceeding when none of the parties requested trial

court to appoint independent counsel for the child). Appellate

courts may, however, in certain circumstances, consider a

forfeited argument using a plain-error analysis. See Risner v.

Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio

St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court

has discretion to consider forfeited constitutional challenges);

see also Hill v. Urbana, 79 Ohio St.3d 130, 133-34, 679 N.E.2d

1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d

286 (1988), syllabus (stating that “[e]ven where [forfeiture] is

clear, [appellate] court[s] reserve[] the right to consider

constitutional challenges to the application of statutes in

specific cases of plain error or where the rights and interests

involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning

No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th

Dist. Mahoning No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (the plain

error doctrine “‘is a wholly discretionary doctrine’”); DeVan v.

Cuyahoga Cty. Bd. of Revision, 2015-Ohio-4279, 45 N.E.3d 661, ¶
14
HOCKING, 22CA2

9 (8th Dist.) (appellate court retains discretion to consider

forfeited argument); see Rosales-Mireles v. United States, ___

U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court

has discretion whether to recognize plain error).

{¶27} For the plain-error doctrine to apply, the party

claiming error must establish (1) that “‘an error, i.e., a

deviation from a legal rule” occurred, (2) that the error was

“‘an “obvious” defect in the trial proceedings,’” and (3) that

this obvious error affected substantial rights, i.e., the error

“‘must have affected the outcome of the trial.’” State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436

N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and

prejudicial although neither objected to nor affirmatively

waived which, if permitted, would have a material adverse affect

on the character and public confidence in judicial

proceedings.”). For an error to be “plain” or “obvious,” the

error must be plain “under current law” “at the time of

appellate consideration.” Johnson v. United States, 520 U.S.

461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord

Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin

No. 15AP-536, 2016-Ohio-717, ¶ 14. However, the plain error
15
HOCKING, 22CA2

doctrine is not readily invoked in civil cases. Instead, an

appellate court “must proceed with the utmost caution” when

applying the plain error doctrine in civil cases. Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The

Ohio Supreme Court has set a “very high standard” for invoking

the plain error doctrine in a civil case. Perez v. Falls

Financial, Inc., 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus,

“the doctrine is sharply limited to the extremely rare case

involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the

basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying

judicial process itself.” Goldfuss, 79 Ohio St.3d at 122;

accord Jones v. Cleveland Clinic Found., 161 Ohio St.3d 337,

2020-Ohio-3780, 163 N.E.3d 501, ¶ 24; Gable v. Gates Mills, 103

Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.

Moreover, appellate courts “‘should be hesitant to decide

[forfeited errors] for the reason that justice is far better

served when it has the benefit of briefing, arguing, and lower

court consideration before making a final determination.’”

Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d 330,

332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg.

Co., Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th
16
HOCKING, 22CA2

Dist.1995) (“Litigants must not be permitted to hold their

arguments in reserve for appeal, thus evading the trial court

process.”). Additionally, “[t]he plain error doctrine should

never be applied to reverse a civil judgment * * * to allow

litigation of issues which could easily have been raised and

determined in the initial trial.” Goldfuss, 79 Ohio St.3d at

122.

{¶28} After our review in the case sub judice, we do not

believe that the trial court plainly erred by failing to sua

sponte investigate whether appellant was indigent and entitled

to appointed counsel. Once again we note that appellant clearly

informed the court that appellant had contacted a private

attorney and that this attorney had agreed to represent

appellant. Appellant did not state that he could not afford to

pay a private attorney. Instead, by stating that he had

contacted a private attorney and that this attorney agreed to

represent him, appellant indicated to the court that he

possessed the financial ability to retain this private attorney.

The court did not have a duty to doubt appellant’s claimed

ability to hire this attorney and to independently inquire

whether appellant qualified for appointed counsel, especially in

light of the fact that appellant did not ask the court to

appoint counsel. Cf. Souders v. Souders, 1st Dist. Hamilton No.
17
HOCKING, 22CA2

C-150552, 2016-Ohio-3522, ¶ 18 (trial court did not violate

right to court-appointed counsel in failure-to-pay-child-support

case when father did not follow procedures to obtain public

defender or court-appointed counsel, did not file an indigency

affidavit, and did not submit any other documentation to support

claim that he was indigent).

{¶29} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶30} In his third assignment of error, appellant asserts

that the trial court erred by failing to give him an adequate

opportunity to purge his contempt. In particular, appellant

contends that the trial court’s purge condition – complying with

a three-year payment schedule – is not valid because it attempts

to regulate appellant’s future conduct. Accordingly, within his

third assignment of error appellant asserts that the trial court

did not enter a finding regarding his ability to pay.

{¶31} Trial courts generally have “broad discretion in

contempt proceedings,” including when imposing contempt

sanctions. Schuman v. Cranford, 4th Dist. Vinton No. 02CA571,

2003-Ohio-2117, ¶ 10; accord Weinsziehr v. Weinsziehr, 4th Dist.

Hocking No. 20CA1, 2021-Ohio-1568, ¶ 14; Dimalanta v. Dimalanta,

8th Dist. Cuyahoga No. 108920, 2020-Ohio-6992, ¶ 42. Thus,
18
HOCKING, 22CA2

reviewing courts will not reverse a trial court’s decision

regarding contempt sanctions unless the court abused its

discretion. E.g., Schuman at ¶ 10; State ex rel. DeWine v.

Miller, 194 Ohio App.3d 86, 2011-Ohio-2107, 954 N.E.2d 1247, ¶

16 (4th Dist.). As we noted earlier, “‘[a]buse of discretion’

has been defined as an attitude that is unreasonable, arbitrary

or unconscionable.” AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d

83, 87, 482 N.E.2d 1248 (1985). Furthermore, in civil contempt

cases like the case at bar, a trial court “must provide the

contemnor a reasonable opportunity to purge the contempt.”

Cornell v. Shain, 1st Dist. Hamilton No. C-19072, 2021-Ohio-

2094, ¶ 46, citing Burchett v. Miller, 123 Ohio App.3d 550, 552,

704 N.E.2d 636 (6th Dist.1997); Tucker v. Tucker, 10 Ohio App.3d

251, 252, 461 N.E.2d 1337 (10th Dist.1983). “A trial court

abuses its discretion when it orders conditions for purging that

are unreasonable or impossible for the contemnor to meet.”

Schuman at ¶ 10, citing Burchett, supra.

{¶32} “The determination of whether a particular purge

condition is unreasonable or impossible varies on a case-by-case

basis.” Id. at ¶ 11. Moreover, “[t]he contemnor bears the

burden of presenting sufficient evidence at the contempt hearing
19
HOCKING, 22CA2

to establish that the trial court’s purge conditions are

unreasonable or impossible for him to satisfy.” Id., citing

Szymczak v. Szymczak, 136 Ohio App.3d 706, 713, 737 N.E.2d 980

(8th Dist.2000); accord Liming v. Damos, 133 Ohio St.3d 509,

2012-Ohio-4783, 979 N.E.2d 297, ¶ 20 (stating that “[p]lacing

the burden of showing inability to pay on the party charged with

contempt is not unreasonable”). A contemnor’s

“[u]nsubstantiated claims of financial difficulties do not

establish an impossibility defense to a contempt charge.”

Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564, 2010-Ohio-

3120, ¶ 41; accord Liming at ¶ 23 (trial court did not need “to

expressly find that [the father] had the ability to pay” when

the father “failed to produce evidence of inability to pay”); In

re I.L.J., 8th Dist. Cuyahoga No. 109564, 2020-Ohio-5434, ¶ 14

(“contemnor’s unsupported claims of financial difficulty or an

inability to pay are insufficient to establish that the trial

court’s conditions are unreasonable.”); Pettit v. Pettit, 8th

Dist. Cuyahoga No. 64582, 1993 WL 536060, *4 (Dec. 23, 1993)

(“unsupported statement of ‘I have been broke’ will not

establish an inability to comply with a court order of child

support”).

{¶33} In the case sub judice, appellant first asserts that

the trial court’s contempt order did not give him a reasonable
20
HOCKING, 22CA2

opportunity to purge the contempt. Appellant contends that the

court’s purge condition regulates his future conduct and that

purge conditions that regulate future conduct are invalid.

{¶34} We acknowledge that a purge condition may not

“regulate future conduct by conditioning the suspension of a

jail sentence on the contemnor making payments on current

support obligations.” Frey v. Frey, 197 Ohio App.3d 273, 2011-

Ohio-6012, 967 N.E.2d 246, ¶ 35 (3rd Dist.); Tucker v. Tucker,

10 Ohio App.3d 251, 252, 461 N.E.2d 1337 (10th Dist.1983).

Purge conditions that require a contemnor to pay an arrearage

pursuant to a payment schedule or otherwise do not regulate

future conduct, however. Frey at ¶ 35, citing Marden v. Marden,

108 Ohio App.3d 568, 571, 671 N.E.2d 331 (12th Dist.1996);

accord Vaughn v. Vaughn, 12th Dist. Warren No. CA2021-08-078,

2022-Ohio-1805, ¶ 39 (trial court did not abuse its discretion

by requiring husband to “make ‘steady payments’ on his $34,500

child support arrearage”); Cox v. Cox, 10th Dist. Franklin No.

14AP-490, 2015-Ohio-1660, ¶ 34; Stychno v. Stychno, 11th Dist.

Trumbull No. 2008-T-0117, 2009-Ohio-6858, ¶ 54 (order not an

attempt to regulate future conduct but monthly payment “based

solely on arrearages owed”); In re Kenison, 10th Dist. Franklin

No. 96APF07-975, 1997 WL 284676, *2 (order that “provide[s] for

purging by paying the arrearage” gives contemnor “a true
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opportunity for purging”). Conditioning a contempt sanction on

paying an arrearage requires a contemnor to comply with a

preexisting obligation, not a current or future obligation that

has yet to give rise to a contempt proceeding. See Leuvoy v.

Leuvoy, 10th Dist. Franklin No. 00AP-1378, 2001 WL 710123, *2

(June 26, 2001) (noting distinction between purge conditions

that attempt to regulate future obligations and purge conditions

that set a payment schedule for arrearages). Consequently,

courts have held that purge conditions are proper when they

suspend a jail sentence on the condition that a contemnor pay an

arrearage. Vaughn; Leuvoy.

{¶35} For example, in Leuvoy the court determined that a

contempt order that suspended the contemnor’s jail sentence upon

the condition that he pay $1,250 per month to “liquidate” his

child and spousal support arrearages did not attempt to regulate

the contemnor’s future conduct. Id. at *1. The court explained

that “the order permitted appellant to purge by making monthly

payments on the arrearage amount.” Id. at *2. The court

further distinguished the arrearage-payment purge condition from

purge conditions that regulate future conduct. The court noted

that in the future-conduct purge cases, any arrearage (1) “had

been paid”; (2) “did not exist at the time the judgment in

contempt was entered”; and (3) “the order was directed only to
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future conduct.” Id. The Leuvoy court pointed out that, in the

case before it, the contemnor had not paid the arrearage before

the court entered its contempt finding. The court thus

concluded that the contempt order did not attempt to regulate

future conduct.

{¶36} In Tucker, on the other hand, the court held that a

civil contempt order did not provide the contemnor a reasonable

opportunity to purge the contempt when the court suspended

punishment on the condition that the contemnor comply in the

future by paying his child support obligation. The court stated

as follows:

“Had the order provided for suspending the jail
sentence on condition that plaintiff purge himself of
his violation of the support order by paying the
arrearage, it would have provided a true opportunity for
purging. However, insofar as it purports to regulate
future conduct, it simply amounts to the court’s
reaffirmation of its previous support order and can have
no effect since any effort to punish a future violation
of the support order would require new notice, hearing,
and determination.”

Id. at 252.

{¶37} In the case at bar, we do not believe that the trial

court’s purge condition attempts to regulate future conduct as

contemplated in Tucker. Instead, the court’s purge condition,

similar to the purge condition in Leuvoy, sets a payment

schedule for the amount of money that appellant failed to pay
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under the consent order. Thus, this particular purge condition

is a payment schedule to satisfy a preexisting obligation, an

arrearage, not an order to make payments to satisfy a current or

future obligation.

{¶38} Additionally, we reject any argument that the trial

court erred by failing to expressly find that appellant has the

ability to pay the money owed under the consent order. Here,

appellant did not present any evidence regarding his claimed

inability to pay. Therefore, under Liming, the trial court did

not have any duty to find that appellant had the ability to pay.

Liming at ¶ 23 (trial court did not need “to expressly find that

[the father] had the ability to pay” when the father “failed to

produce evidence of inability to pay”).

{¶39} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee
recover of appellant the 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 Hocking County Common Pleas Court to carry
this judgment into execution.

A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8205607. Public record. Not legal advice.