2013 Ohio 4095
Ohio Ct. App.2013Background
- Final divorce in 2010 required William Dilley to pay $2,000 monthly spousal support.
- Dilley was found in contempt for nonpayment but allowed to purge by paying fees.
- Dilley filed a motion to modify/terminate spousal support; appellee moved to impose sentence.
- Hearings were rescheduled due to incarceration and service issues; May 3, 2012 hearings were ultimately held.
- Incarceration reduced Dilley’s post-incarceration income (Social Security and Veteran’s Disability decreased to $100).
- Trial court denied modification, found contempt for the 15 months before incarceration, and imposed jail time with purge payment of $1,092 for appellee’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a continuance due to incarceration was error | Dilley contends incarceration prevented defense | Court properly exercised discretion; notice and alternatives were available | No abuse of discretion; continuance denied |
| Whether contempt for failure to pay spousal support was properly found | Incarceration and lack of income negate ability to pay | Contempt based on 15 months before incarceration; income shown but no payments | No abuse; evidence supported contempt based on pre-incarceration period |
| Whether the court abused its discretion in denying modification of spousal support | Changed circumstances due to incarceration and income changes warranted modification | No change in circumstances sufficient; continued obligation remains | No modification warranted; discretion exercised properly |
| Whether purge requirement for attorney fees was an abuse | Incarceration prevents payment of purge | Purging via fees is proper condition of contempt | Purge order upheld; contempt affirmed with purge condition |
Key Cases Cited
- State v. Unger, 67 Ohio St.2d 65 (1981) (continuance discretion broad in trial court)
- Cole v. Cole, 70 Ohio App.3d 188 (1990) (criminal conduct deemed change in circumstances for support)
- First Bank of Marietta v. Mascrete, Inc., 125 Ohio App.3d 257 (1998) (contempt proceedings and purge provisions)
- State v. Cook, 66 Ohio St. 566 (1902) (burden to prove inability to pay alimony rests with contemnor)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (1980) (contempt for failure to comply with money decree; purge mechanics)