Darr v. Livingston
2017 Ohio 841
| Ohio Ct. App. | 2017Background
- Darr and Livingston divorced by agreed decree (Apr. 2, 2009) that ordered sale of the marital residence at 191 W. Lincoln Ave.; defendant (Livingston) had exclusive use and responsibility for mortgage/taxes until sale, and sale proceeds were to first pay specified debts with remaining proceeds split 50/50.
- Livingston listed the house in 2008–2009 with no offers, then withdrew it after filing Chapter 13 bankruptcy in Oct. 2009 and later received a discharge in Feb. 2015.
- After bankruptcy, realtors recommended repairs to obtain a higher listing price; Livingston told Darr she could either be removed from the mortgage (and receive no sale proceeds) or contribute to repairs to share proceeds, and he refused to list the house until she agreed.
- Darr moved for contempt (May 18, 2015) for Livingston’s refusal to list; a magistrate denied contempt but awarded some fees; the trial court on Mar. 30, 2016 found Livingston in civil contempt, conditioned 30-day jail on listing/reducing price/maintaining the house, and awarded Darr $6,500 in attorney fees and costs.
- The parties sold the house on Nov. 17, 2016; on appeal, the court dismissed contempt challenges as moot and affirmed the fee award and refusal to reallocate proceeds.
Issues
| Issue | Plaintiff's Argument (Darr) | Defendant's Argument (Livingston) | Held |
|---|---|---|---|
| Whether trial court erred in finding Livingston in contempt for not listing/selling the house | Darr: Livingston willfully refused to comply with decree and must be held in civil contempt | Livingston: He had reasons (bankruptcy, negotiations about repairs/proceeds) and did not willfully disobey | Moot — sale after judgment purged contempt; contempt challenge dismissed |
| Whether contempt finding was against manifest weight of evidence | Darr: Evidence supports contempt finding | Livingston: Evidence does not support willful refusal | Moot — same rationale as above |
| Whether trial court should alter the property division to credit Livingston for post-decree mortgage principal payments (~$27,000) | Darr: Enforce original decree dividing proceeds as ordered | Livingston: He should receive additional share for principal payments after Darr moved out | Overruled — court lacked jurisdiction to modify property division absent consent; no consent here |
| Whether awarding $6,500 in post-decree attorney fees to Darr was an abuse of discretion under R.C. 3105.73(B) | Darr: Award is equitable given income disparity, litigation costs, and Livingston’s conduct | Livingston: Fee award improperly penalizes him and includes fees from other post-decree matters he did not cause | Affirmed — trial court did not abuse discretion considering income disparity, costs incurred, and Livingston’s conduct delaying sale; award limited to fees related to contempt motion |
Key Cases Cited
- State ex rel. Corn v. Russo, 90 Ohio St.3d 551 (civil contempt defined and classified)
- Liming v. Damos, 133 Ohio St.3d 509 (civil contempt is coercive and conditional; contemnor can purge)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (prison sentences in civil contempt are conditional)
- Cincinnati Gas & Elec. Co. v. Pub. Utilities Comm., 103 Ohio St.3d 398 (courts decide actual controversies that can be carried into effect)
- Fortner v. Thomas, 22 Ohio St.2d 13 (duty of tribunals to decide actual controversies)
- Hagerman v. Dayton, 147 Ohio St. 313 (when subsequent events moot an issue, that part must be dismissed)