2015 Ohio 190
Ohio Ct. App.2015Background
- Sarah Woolum (now Lowry) and Brian Woolum divorced in June 2013; decree awarded two houses (2104 Entrada Dr. and 1425 Balsam Dr.) to Brian, who was to refinance them within six months or list them for sale; he would keep equity but remain responsible for mortgage liabilities.
- Lowry filed a motion to show cause (Oct. 2, 2013) alleging Brian failed to refinance or list the properties, Balsam went into foreclosure, and Brian failed to cooperate on the 2011 tax return and to pay a monetary obligation.
- Lowry separately moved under Civ.R. 60(B) alleging Brian had misrepresented that his business (REMK, LLC) was dissolved; she sought amendment of the decree to assign REMK liabilities to Brian and to allow separate filing of 2011 tax returns.
- At a Jan. 27, 2014 hearing, the trial court found by clear and convincing evidence Brian in contempt for not refinancing or timely listing the Entrada and Balsam properties; Balsam had entered foreclosure; Entrada was listed only shortly before the hearing.
- The trial court granted Lowry Civ.R. 60(B) relief as to REMK, amended the decree to assign REMK liabilities to Brian, allowed separate 2011 tax filings, awarded Lowry attorney fees ($750 for each contested matter), and reserved future monetary relief to Lowry if she suffered damages from the foreclosure.
- Brian appealed the January 28 and Feb. 4 orders, challenging the contempt finding and asserting he was not given an opportunity to purge before sentencing; the court affirms the contempt finding but notes purge opportunity and sentencing issues are for separate appeal from any contempt sentence.
Issues
| Issue | Plaintiff's Argument (Lowry) | Defendant's Argument (Woolum) | Held |
|---|---|---|---|
| Whether Brian was in civil contempt for failing to refinance or list the Balsam property | Brian failed to refinance or list Balsam; foreclosure and deficiency resulted; contempt appropriate | He was unable or not permitted to refinance; did not show denial of refinance efforts | Affirmed: clear and convincing evidence supported contempt; no proof of refinancing efforts and foreclosure followed his nonpayment |
| Whether Brian was in civil contempt for failing to refinance or timely list the Entrada property | He failed to refinance within six months and delayed listing; contempt appropriate | He attempted to refinance but Lowry refused to sign paperwork; thus not willfully noncompliant | Affirmed: Brian admitted inability to refinance and did not list until after deadline; contempt supported |
| Whether the court denied Brian an opportunity to purge contempt before imposing sanctions | Lowry sought purge by compliance; trial court scheduled future sentencing and allowed time to cure before sentencing | Brian contends he was not given a chance to purge before jail sentence | Court: This appeal challenges the contempt finding, not later sentencing; record shows the trial court contemplated a purge period and sentencing occurred later (appeal from any sentence is separate) |
| Attorney fees awarded for contempt and Civ.R. 60(B) relief | Fees were warranted because Brian’s misrepresentations and failure to comply forced Lowry to litigate | Brian disputes contempt/fault, but did not contest 60(B) modification on appeal | Court upheld fee awards tied to contempt and to 60(B) relief as within trial court discretion |
Key Cases Cited
- Planned Parenthood v. Project Jericho, 52 Ohio St.3d 56 (Ohio 1990) (trial court may assess reasonable attorney fees as part of costs against a defendant found guilty of civil contempt)