Brock v. BrockBrock v. Brock
James R. Hartke, 917 Main Street, Suite 400, Cincinnati, Ohio 45202, for defendant appellant
HENDRICKSON, P.J.
OPINION
{¶ 1} Defendant-appellant, Ewell Brock, Jr., appeals from a decision of the Clermont County Court of Common Pleas, Domestic Relations Division, granting judgment in favor of plaintiff-appellee, Donna Brock, in an action seeking to hold Donna in contempt for allegedly forcing the dissolution of their jointly owned business contrary to the terms of their divorce decree. For the reasons stated below, we affirm the decision of the trial court.
{¶ 3} For several years, Ewell and Donna jointly operated Auto Works and Auto House, LLC (Auto House). Auto House was a company the two formed in 1998 that was not subject to the divorce decree. In November 2003, Donna filed a lawsuit in the Hamilton County Court of Common Pleas, Case No. A0308567 (Hamilton County case), requesting a dissolution of Auto Works and Auto House.1 A receiver for the companies was appointed and in 2006 all the assets of Auto Works and Auto House were liquidated.2
{¶ 4} On April 30, 2007, Ewell filed the motion at issue in the present case, a motion for contempt, in the Clermont County Court of Common Pleas, Domestic Relations Division. In this motion, Ewell alleged that Donna violated the terms of their 1985 divorce decree “by taking unauthorized and illegal control of [Auto Works] in violation of Ohio law and liquidated its business without the consent of [Ewell] as required by this Court‘s order.” Ewell also alleged the same essential claims regarding Auto House. Later, Ewell filed an amended motion for contempt. In 2007, Donna also filed a motion for contempt against Ewell, alleging
{¶ 5} On April 9, 2010, Dоnna moved to dismiss Ewell‘s motion for contempt. The trial court construed Donna‘s motion as a motion for summary judgment. In response, Ewell filed his own motion for summary judgment regarding his motion for contempt. Additionally, Ewell and Donna both moved for summary judgment on Donna‘s contempt case.
{¶ 6} In regards to Donna‘s contempt case, the trial court denied the motion for contempt and granted summary judgment in favor of Ewell. The court held that summary judgment was proper because Ewell‘s conduct in making major business decisions without Donna‘s consent was in response to Donna‘s behavior. Donna did not appeal the trial court‘s summary judgment decision in her contempt case.
{¶ 7} Concerning Ewell‘s contempt motion, the trial court granted summary judgment in Donna‘s favor reasoning that Donna could not “be held in contempt for dissolving the comрanies when the dissolution was done by agreement.” Ewell appealed the grant of summary judgment to this court. In Brock v. Brock, 12th Dist. No. CA2011-02-010, 2011-Ohio-6351 (Brock I), this court reversed the trial court‘s decision in part, finding that summary judgment was improper as a “genuine issue of material fact remains as to whether Ewell actually agreed to dissolve Auto Works.”3 Consequently, the case was remanded to the trial court for further proceedings.
{¶ 8} On remand, a hearing beforе a magistrate established the following facts. In 2002 and 2003, several disagreements arose between the couple regarding the operation of Auto Works and Auto House. In August 2003, Donna decided to terminate her business
{¶ 9} After Mansour‘s retention, Ewell sent a letter to Donna which immediately terminated her services with Auto Works and also notified her that a rеstraining order had been filed with the police department prohibiting her from entering Auto Works’ premises. However, the next day, Ewell reinstated Donna‘s employment with Auto Works but required her to take a week of paid vacation before returning to the business. That same day, Ewell also accepted Donna‘s offer to purchase her shares of Auto Works.
{¶ 10} After Donna returned to Auto Works, she became сoncerned that Ewell was not properly managing the business and was hiding business assets from her. Consequently, Donna filed the Hamilton County case seeking an accounting and dissolution of Auto Works and Auto House. During the case, two agreed orders were entered on the court‘s docket. The first agreed order, entered on November 28, 2003, signed by Ewell and Donna, appointed a receiver to conduct an aсcounting and appraisal of Auto Works with the understanding “that the accounting and appraisal will be used in the dissolution of the business.” The second agreed order was entered on December 5, 2003, and covered many aspects of Ewell‘s and Donna‘s business relationship, including the appointment of an accountant to appraise the business and the sale of the business and its assets once the accounting and appraisal were complete. Additionally, two other agreed entries signed by Ewell in June and July of 2004, were filed with the court and provided for the sale of Auto Works and its real property.
{¶ 12} After the conclusion of the hearing, the magistrate found that Donna was not in contempt of the divorce decree because Ewell “violated the spirit, if not the specific orders” of the divorce decree when he made several business decisiоns without Donna‘s knowledge. The magistrate stated that Donna‘s decision to file the Hamilton County case was a reaction to Ewell‘s decisions. The trial court affirmed the magistrate‘s decision finding Donna not in contempt of the divorce decree. The court reasoned that Ewell consented to the filing of the Hamilton County case when he signed the agreed order appointing a receiver for the dissolution of the company. The court also reasoned that Donna‘s action in filing the Hamilton County case was not in contempt of the divorce decree because Ewell‘s conduct left Donna no other alternative.
{¶ 13} Ewell now appeals, raising four assignments of error.
Assignment of Error No. 1
{¶ 15} THE CLERMONT TRIAL COURT ERRS TO THE PREJUDICE OF [EWELL] BY DENYING HIS AMENDED MOTION FOR CONTEMPT AGAINST DONNA WHERE DONNA TESTIFIES SHE NEVER OBTAINED [EWELL‘S] PERMISSION BEFORE SHE FILED THE HAMILTON COUNTY LAWSUIT TO DISSOLVE AUTO WORKS
Assignment of Error No. 2:
{¶ 17} THE CLERMONT TRIAL COURT ERRS TO THE PREJUDICE OF [EWELL] BY VIOLATING THE MANDATES OF THE 12TH DISTRICT COURT OF APPEALS DECISION OF DECEMBER 12, 2011.
{¶ 18} Because Ewell‘s first and second assignments of error are related, we will
{¶ 19} As stated in Brock I, contempt of court is defined as “disobedience of an order of a court * * * which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions.” Hueber v. Hueber, 12th Dist. Clermont Nos. CA2006-01-004, CA2006-02-019, CA2006-02-020, 2007-Ohio-913, ¶ 16, citing Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971), paragraph one of the syllabus. To support a contempt finding, the moving party must establish by clear and convincing evidence that a valid court order exists, that the offending party had knowledge of the order, and that the offending party violated such order. Underleider v. Underleider, 12th Dist. Clermont Nos. CA2010-09-069, CA2010-09-074, 2011-Ohio-2600, ¶ 36. A finding of contempt, however, “does not require proof of purposeful, willing, or intentional violation of a trial court‘s prior order.” Townsend v. Townsend, 4th Dist. Lawrence No. 08CA9, 2008-Ohio-6701, ¶ 27, citing Pugh v. Pugh, 15 Ohio St.3d 136, 140 (1984).
{¶ 20} This court will not reverse the trial court‘s ruling on a motion for contempt
A. Ewell‘s Consent to the Dissolution of Auto Works
{¶ 21} At the hearing, Donna introduced several pieces of еvidence that established Ewell consented to the dissolution of Auto Works and the liquidation of the business assets. Specifically, Donna introduced two agreed orders, signed by Ewell during the pendency of the Hamilton County case, which appointed a receiver to conduct an accounting and appraisal of Auto Works. The November 28, 2003 agreed order expressly provided that the receiver will hаve the authority to “conduct an accounting and appraisal of these businesses” and “that the accounting and appraisal will be used in the dissolution of the businesses.” Similarly, the December 5, 2003 agreed order provided that the parties will retain an appraiser to conduct an accounting and/or appraisal of the business and “[w]ithin 10 days of the completion of the accounting and aрpraisal the businesses and all assets thereof shall be placed for sale* * *.”
{¶ 22} Ewell asserts that these orders do not show he consented to the dissolution of Auto Works because Donna‘s attorney fraudulently represented to him that the receiver‘s term of appointment would be limited to two weeks. However, Ewell‘s testimony regarding the statements made by Donna‘s attorney is contradicted by the absence of any language in the orders establishing a time limitation for the receiver‘s appointment. In addition, Ewell was represented by separate counsel and the agreed orders expressly contemplated a situation
B. Trial Court‘s Decision Does Not Conflict with Court‘s Statement of the Law
{¶ 23} In Brock I, this court stated that “a finding of contempt, however, ‘does not require proof of purposeful, willing, or intentional violation of a trial court‘s prior order.‘” Brock I at ¶ 11, quoting Townsend v. Townsend, 4th Dist. Lawrence No. 08CA9, 2008-Ohio-6701, ¶ 27. In finding that Donna was not in contempt of the divorce decree, the trial court not only reasoned that Ewell consented to the dissolution of Auto Works but also that “[Ewell‘s] actions left [Donna] with no alternatives.” Ewell contends that the trial court‘s reasoning regarding the justification of Donna‘s actions essentially required Donna to intentionally violate the divorce decree which conflicted with our statement of the law in Brock I.
{¶ 24} As discussed above, Donna‘s filing of the Hamilton County case did not violate the divorce decree because the evidence established that Ewell consented to the dissolution and liquidation of Auto Works. Whether Donna‘s actions were intentional or whether Ewell‘s actions left hеr with no alternatives is not relevant in the case at bar. Therefore, the trial court‘s reasoning regarding Donna‘s actions is inconsequential to the outcome of this case in light of the fact that Ewell consented to the dissolution of Auto Works.
{¶ 25} Based on the foregoing, the trial court did not abuse its discretion in finding that Donna was not in contempt of the divorce decree. Donna offered sufficient evidence that Ewell consented to the dissolution of Auto Works. Simply because the trial court chose to believe Donna‘s testimony and the plain language of the multiple agreed orders over Ewell‘s
{¶ 26} Ewell‘s first and second assignments of error are overruled.
Assignment of Error No. 3:
{¶ 28} THE CLERMONT TRIAL COURT ERRS TO THE PREJUDICE OF [EWELL] BY NOT CONSIDERING THE MAIN ISSUE OF DONNA NOT FILING AN ANSWER TO [EWELL‘S] AMENDED COMPLAINT FOR CONTEMPT IN VIOLATION OF
{¶ 29} Ewell also challenges the trial court‘s decisiоn finding his “amended motion for contempt” is not a pleading. Ewell argues that his “amended motion for contempt” is a “complaint” for contempt and Donna failed to file a responsive pleading to his “complaint.” Therefore, pursuant to
{¶ 30}
There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisiоns of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or to a third-party answer.
(Emphasis added.)
{¶ 31} In its decision, the trial court overruled Ewell‘s argument reasoning that he “did not file a ‘complaint’ but a motion for the court to find [Donna] in contempt of the decree of Dissolution* * *. Such a motion does not require a responsive pleading under
{¶ 32} Ewell fails to appreciate that
{¶ 33} Therefore, the trial court did not err in finding that Ewell‘s motion for contempt was not a pleading and the averments contained in the motion should not be deemed admitted pursuant to
Assignment of Error No. 4:
{¶ 35} THE CLERMONT TRIAL COURT ERRS TO THE PREJUDICE OF [EWELL] BY NOT FOLLING THE LAW OF THE CASE DOCTRINE.
{¶ 36} Lastly, Ewell argues that the law-of-the-case doctrine precludes Donna from testifying regarding Ewell‘s actions at Auto Works. After being served with the contempt motiоn at issue in the present case, Donna also filed a motion for contempt against Ewell. In Donna‘s contempt case, she argued that Ewell violated the divorce decree when he hired Mansour and gave him power of attorney over Auto Works. In 2011, the trial court denied Donna‘s contempt motion by granting summary judgment in favor of Ewell. Donna never appealed the trial court‘s summary judgment decision.
{¶ 37} Ewеll maintains that the doctrine prohibits Donna from testifying regarding any facts involved in her contempt case. He contends that because she did not appeal the summary judgment decision in her contempt case, the issue of contempt and all the facts involved in that case were settled. Therefore, Ewell asserts Donna cannot testify to any facts that overlap with the present contemрt case, namely, the circumstances of the dissolution of Auto Works.
{¶ 39} The trial court did not err in allowing Donna to testify regarding the same factual allegations that were contained in her contempt case. The law of the case decided in Donna‘s contempt action was that Ewell was not in contempt of the divorce decree because Ewell‘s conduct in hiring Mansour to operate Auto Works “was in response to [Donna‘s] offer to sell [Ewell] her shares in the company.” The issue in the case at bar was whether Donna violated the divorce decree by filing the Hamilton County case. Consequently, the legal question was different in both cases and the law-of-the-case doctrine is not applicable. See Matheny v. Norton, 9th Dist. Summit No. 26666, 2013-Ohio-3798, ¶ 15 (law-of-the-case doctrine inapplicable where “trial court was not ‘confronted with substantially the same facts and issues’ on remand“); Byrd v. Smith, 12th Dist. Clermont No. CA2007-08-093, 2008-Ohio-3597, ¶ 11-20.
{¶ 40} In addition, Ewell argues that Donna‘s testimony regarding Auto Works’ business operations was inadmissible because Auto Works is not a party to the contempt case and the business is not within the jurisdiсtion of the Domestic Relations Court. After a review of the record, we find the trial court also did not err by allowing Donna to testify regarding the business operations of Auto Works.
{¶ 42} Further, even if Ewell had preserved the issue for appeal, Donna‘s testimony regarding Auto Works’ operations was proper as it was necessary background information to understand whether she violated the divorce decree. At issue on remand was whether Donna violated the divorce decree‘s provision that “[n]either party shall liquidate the business assets [of Auto Works] or make major decisions affecting the operation of [Auto Works] without the consent of the other party.” Donna‘s testimony regarding the operations of Auto Works was necessary in order to understand the circumstances surrounding her decision to file the Hamilton County case and whether this was a “major decision affecting the operation” of Auto Works. Thus, the trial court did not err in permitting Donna to testify about Auto Works operations.
{¶ 43} Ewell‘s fourth assignment of error is overruled.
{¶ 44} Judgment affirmed.
RINGLAND and M. POWELL, JJ., concur.