Chiro v. Foley
2014 Ohio 3728
Ohio Ct. App.2014Background
- Foley and Chiro divorced by agreed entry in November 2010 that waived current spousal support but reserved court jurisdiction for 3 years to award wife support if she was terminated without cause; salary basis $50,000 plus benefits.
- Foley later claimed constructive termination (hostile work environment) and the trial court found Chiro terminated her without cause, awarding spousal support of $50,000/year plus $464.91/month for benefits for two years (Apr 2011–Apr 2013); this court affirmed that award.
- Foley moved to show cause for contempt in May 2013 alleging Chiro failed to pay and had an arrearage (~$110,078.53–$114,370.80); parties stipulated the magistrate would rely on a payment history, an attorney-fee affidavit, and Chiro’s denial of contempt.
- At the contempt hearing, the magistrate found no evidence of inability to pay and concluded Chiro’s failure to pay was willful; the magistrate found contempt and ordered sanctions but allowed purge by payment of the arrearage within 30 days.
- Chiro paid the arrearage two days before the magistrate issued his decision (payment filed Dec 9; decision Dec 11); the magistrate nonetheless found contempt for the period before payment and awarded Foley $7,565 in attorney fees (out of $8,315 requested).
- Chiro appealed, raising three assignments: (1) trial court abused discretion by denying his motion to strike Foley’s show-cause motion (due process), (2) contempt was improper because he paid before the decision, and (3) attorney-fee award was not supported by the evidence.
Issues
| Issue | Plaintiff's Argument (Chiro) | Defendant's Argument (Foley) | Held |
|---|---|---|---|
| Motion to strike / due process | Motion to strike should have been granted because Foley cited a non-existent statute (typographical error) and thus notice was defective | Typo (2705.31 vs 2705.031) was harmless; notice referenced R.C. chapter and Chiro had full opportunity to be heard | Court: No due process violation; typo was not fatal and Chiro received adequate notice and hearing |
| Contempt despite payment | Payment of arrearage two days before decision purged contempt; court should not find contempt | Contempt is based on past disobedience; Chiro was in arrears through the contempt hearing and paid only after prolonged noncompliance | Court: Finding of contempt valid for the period before payment; payment purged future sanctions but did not erase past contempt |
| Validity of purge condition | Purge condition was void under Burke line because it purported to regulate future conduct | This purge condition simply provided a clear opportunity to purge and did not improperly regulate future conduct | Court: Distinguishable from Burke; purge condition valid and Chiro had been in contempt before he paid |
| Attorney-fee award | Magistrate failed to identify which time entries related to the show-cause proceedings; award not supported | Magistrate reviewed detailed time entries, excluded unreasonable items, and reasonably exercised discretion under R.C. 3105.73 | Court: Fee award not an abuse of discretion; magistrate not required to delineate each allowed entry |
Key Cases Cited
- Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (constitutional minimum of notice and opportunity to be heard)
- Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532 (U.S. 1985) (due process requires meaningful opportunity to be heard before deprivation of a significant property interest)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (Ohio 1980) (distinguishing civil and criminal contempt; contemnor may purge civil contempt)
- Rand v. Rand, 18 Ohio St.3d 356 (Ohio 1985) (attorney-fee awards in domestic relations matters reviewed for abuse of discretion)
- Aglinsky v. Cleveland Builders Supply Co., 68 Ohio App.3d 810 (Ohio Ct. App. 1991) (trial court abused discretion by depriving party of opportunity to respond before ruling)
- State ex rel. Doe v. Smith, 123 Ohio St.3d 44 (Ohio 2009) (definition of abuse of discretion as unreasonable, arbitrary, or unconscionable)