2020 Ohio 6992
Ohio Ct. App.2020Background
- Ernie and Amie Dimalanta divorced after a 2016 complaint; they have two children. Temporary support orders were entered: Dec. 2016 ($5,765.07/month), then a superseding Nov. 2017 order reducing support to $2,346.81/month, and a Sept. 2018 order that maintained the $2,346.81 obligation.
- Amie filed four motions to show cause alleging nonpayment; a magistrate issued a decision in Dec. 2017 finding Ernie in contempt for earlier nonpayment (arrears shown ~$24,869 as of Sept. 2017).
- The original divorce case was voluntarily dismissed and promptly refiled in May 2018; the parties agreed prior orders and arrearages would carry forward to the refiled case.
- At a consolidated hearing in June 2019, Child Support Services records showed Ernie was over $43,000 in arrears as of June 3, 2019; Ernie admitted multiple missed payments and that his business was struggling.
- The trial court found Ernie in civil contempt for failing to comply with the Nov. 22, 2017 and Sept. 19, 2018 temporary support orders; it sentenced him to 60 days in jail (or until purged) and set purge conditions: pay $8,766.61 within 30 days (20% of arrears) and make 12 consecutive on-time payments.
Issues
| Issue | Plaintiff's Argument (Amie) | Defendant's Argument (Ernie) | Held |
|---|---|---|---|
| Contempt for Nov. 22, 2017 order | Ernie violated the 2017 order (and 2018 order); contempt supported by arrearage evidence | 2017 order was superseded by the 2018 order and thus could not form basis for contempt | Court: Ernie admitted violations of both 2017 and 2018 orders; contempt finding affirmed |
| Double contempt / magistrate decision | Prior magistrate finding shows prior contempt and supports enhanced sanction | Court improperly treated the magistrate’s (December 2017) finding as a separate contempt or it was stayed by objections | Court: ambiguity acknowledged but treated violations of 2017 and 2018 orders as discrete first-offense contempt findings; no reversible error |
| Service of motions | Motions were served via certified mail and counsel was served electronically | Service defective (one signed by father; sent to former address) | Court: presumption of proper service unrebutted; Ernie had actual notice by appearing at the hearing; service challenge overruled |
| Purge conditions / ability to pay | Purge terms (20% payment + 12 on-time payments) are reasonable and coercive to regain compliance | Purge is unreasonable and fails to account for inability to pay; compliance impossible | Court: Ernie failed to prove inability to pay (no business records); purge provisions not an abuse of discretion |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard for appellate review)
- Liming v. Damos, 133 Ohio St.3d 509 (2012) (burden on contemnor to prove inability to pay)
- In re Ayer, 119 Ohio App.3d 571 (1997) (trial court may impose consecutive contempt terms)
- Burchett v. Miller, 123 Ohio App.3d 550 (1997) (purge conditions must be achievable; impossible purge is an abuse of discretion)
- Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61 (1997) (plaintiff bears burden to obtain proper service)
- Hansen v. Hansen, 132 Ohio App.3d 795 (2001) (due process requires notice reasonably calculated to inform alleged contemnor)