Harvey v. HarveyHarvey v. Harvey
Dated: September 7, 2010
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} A few months after Jonathan Harvey and Loralee Myers divorced, Ms. Myers moved the trial court to hold Mr. Harvey in contempt for not making his spousal support payments in the manner required. A month later, Mr. Harvey moved to reduce his spousal support obligation, arguing that Ms. Myers had had a change in income. A magistrate recommended that Mr. Harvey not be held in contempt because he had not willfully disregarded the decree. He also recommended that the court reduce Mr. Harvey‘s support obligation by $1000 per month, but did not recommend making that reduction retroactive. Both parties objected to the magistrate‘s decision. The trial court sustained Ms. Myers‘s objections because it concluded that Mr. Harvey was in contempt and that his motion to reduce spousal support should be denied. It ordered him to pay a fine of $250 and serve three days in jail, but suspended his sentence “on the condition that [he] fully comply with the orders of this court with regard to
CONTEMPT ORDER
{¶2} Mr. Harvey‘s first assignment of error is that the trial court incorrectly found him in contempt for failing to pay spousal support as ordered. The divorce decree ordered him to pay Ms. Myers $33,600 annually for eight years. It also ordered him to make the payments “in advance in equal bi-monthly installments no later than the first and fifteenth of each month by direct wire transfer into the bank account of [Ms. Myers‘s] choosing.”
{¶3} The parties agree that, under the terms of the decree, Mr. Harvey must pay Ms. Myers $1400 twice a month. Mr. Harvey admitted that he usually paid her $2800 once a month. He also admitted that he did not make the payments “by direct wire transfer.” The magistrate determined that the question to be answered was “whether . . . [Mr. Harvey was] willful[ly] disregard[ing] [the] court‘s order.” The trial court, however, disagreed. It found that Ms. Myers had “made, by clear and convincing evidence, a prima facie case of contempt.” It ordered Mr. Harvey to pay a $250 fine and serve three days in jail. It suspended the fine and jail sentence, however, on the condition that he comply with the decree‘s conditions regarding the payment of spousal support. It also ordered him to pay Ms. Myers‘s attorney fees.
{¶5} Although contempt proceedings are neither civil nor criminal, we must classify the sanctions ordered by the trial court as either “civil” or “criminal” to determine whether it provided due process. See Denovchek v. Bd. of Trumbull County Commr‘s, 36 Ohio St. 3d 14, 16 (1988); Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St 2d 197, 202 (1973). “The distinction between civil and criminal contempt is based on the character and purpose of the contempt sanctions.” Denovchek, 36 Ohio St. 3d at 16. “If sanctions are primarily designed to benefit the complainant through remedial or coercive means, then the contempt proceeding is civil.” Id. “Remedial civil contempts serve to compensate plaintiffs for damages suffered because of the defendant‘s disobedience of a court order.” Forrer v. Buckeye Speedway Inc., 9th Dist. No. 07CA0027, 2008-Ohio-4770, at ¶16 (quoting Margit Livingston, Disobedience and Contempt, 75 Wash. L. Rev. 345, 351 (2000)). The plaintiff must prove her loss as she would in any legal action for damages. Id. “Coercive civil sanctions are imposed when the defendant is engaged in an ongoing violation of a court‘s order.” Id. at ¶17. “[Their] purpose . . . is to induce the defendant to stop the ongoing contemptuous behavior.” Id. Defendants imprisoned under a coercive civil sanction are said to “carry the keys to [their] prison in [their] own pocket.” Brown v. Executive 200 Inc., 64 Ohio St. 2d 250, 253 (1980). “As soon as they purge the contempt by
{¶6} To determine whether the fine and jail sentence imposed by the trial court were criminal or civil sanctions, this Court must “determine the purpose behind each sanction: was it to coerce [Mr. Harvey] to obey the consent judgment decree, or was it to punish [him] for past violations?” Brown v. Executive 200 Inc., 64 Ohio St. 2d 250, 254 (1980). They could not have been remedial civil sanctions because Ms. Myers testified that Mr. Harvey had paid her all of the spousal support he owed. Her only complaint was that he had not paid it as directed. They also could not have been coercive civil sanctions because Mr. Harvey does not have the ability to purge them if he complies with the decree. Duffield v. Duffield, 9th Dist. No. 01CA0002, 2001 WL 1044077 at *2 (Sept 12, 2001) (“Punishment imposed upon an adjudication of civil contempt must afford the contemnor an opportunity to purge himself of contempt.“). Furthermore, to avoid serving the suspended sentence, Mr. Harvey must do more than perform a simple identifiable act. The suspension order requires ongoing future adherence to each term of the support order. See Estate of Harrold v. Collier, 9th Dist. No. 07CA0074, 08CA0024, 2009-Ohio-2782, at ¶14.
{¶7} The fine and jail sentence were intended to punish Mr. Harvey for completed violations of the support order. Accordingly, they were criminal contempt sanctions. See Estate of Harrold v. Collier, 9th Dist. No. 07CA0074, 08CA0024, 2009-Ohio-2782, at ¶14. The court, however, suspended them “on the condition that [Mr. Harvey] fully comply with the orders of this court with regard to spousal support.” This Court has determined that contempt sanctions
{¶8} The trial court also ordered Mr. Harvey to pay Ms. Myers‘s attorney fees and costs. Mr. Harvey conceded at oral argument that he has paid Ms. Myers the $1677 ordered by the trial court. “It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot.” Blodgett v. Blodgett, 49 Ohio St. 3d 243, 245 (1990). Accordingly, because the trial court‘s attempt to impose a fine and jail sentence on Mr. Harvey is a nullity and he has satisfied the remainder of its judgment, this Court concludes that any error by the trial court in holding Mr. Harvey in contempt was harmless (fine and sentence) or moot (attorney fees). See
SPOUSAL SUPPORT MODIFICATION
{¶9} Mr. Harvey‘s second assignment of error is that the trial court incorrectly denied his motion to modify spousal support. He has argued that the court ignored multiple changes of circumstances that were not contemplated by the parties at the time of their divorce.
{¶10} Before a trial court can modify an award of spousal support under
{¶11} Mr. Harvey has argued that there was a change in circumstances because Ms. Myers obtained regular employment after the decree was entered and is no longer disabled. According to him, at the time of their divorce, Ms. Myers was unemployed and was unlikely to obtain future employment because she claimed to be disabled. After the decree was entered, however, she obtained a job as a waitress and began competing in dance competitions.
{¶12} The reason the trial court denied Mr. Harvey‘s motion to modify spousal support is not clear from its decision. It found that, at the time Mr. Harvey filed for divorce, Ms. Myers was working for an art gallery. She continued working for the gallery in 2007, which is the year the decree was entered. She earned $5311 in 2007. It found that Ms. Myers could not remember
{¶13} The trial court appears to have concluded that, even if there was a substantial change in circumstances that was not contemplated by the parties at the time of their divorce, Mr. Harvey did not demonstrate that the spousal support award should be modified. Among the factors that the trial court must consider in deciding whether to modify spousal support are the income of the parties, their relative earning abilities, and their physical, mental, and emotional conditions.
{¶14} Mr. Harvey has conceded in his brief that, at her current job, Ms. Myers makes only approximately $16,000 annually. He has not pointed to any evidence in the record that establishes that she no longer suffers from rheumatoid arthritis, fibromyalgia, asthma, and degenerative disc disease. He also has not denied that his income is in the six figures. Upon review of the record, this Court concludes that the trial court properly concluded that Mr. Harvey failed to show that he is entitled to a reduction in his spousal support payments. His second assignment of error is overruled.
{¶15} Mr. Harvey‘s third assignment of error is that the trial court incorrectly failed to make the reduction in spousal support retroactive to the date of his motion. Considering that the trial court correctly determined that a modification of the spousal support award was not appropriate, it correctly refused to order a retroactive reduction in support. Mr. Harvey‘s third assignment of error is overruled.
MOTION FOR RELIEF FROM JUDGMENT
{¶16} Mr. Harvey‘s fourth assignment of error is that the trial court incorrectly denied his motion for relief from judgment. He has argued that Ms. Myers surprised him with false and misleading testimony about whether she was employed at the time of the divorce. According to him, a lawyer who used to represent Ms. Myers sent him an email on May 16, 2007, informing him that Ms. Myers was no longer working for the art gallery. Ms. Myers testified at the hearing, however, that she was employed by the art gallery at the time of the divorce, which was in December 2007.
{¶17} Under
{¶18} As previously noted, the trial court‘s decision to deny Mr. Harvey‘s motion to modify spousal support was not based on whether Ms. Myers was employed at the time the divorce decree was entered, but on the fact that she has ongoing medical problems and that the parties continue to have significantly disparate incomes. Mr. Harvey, therefore, has failed to demonstrate that he had a meritorious claim or defense to present if his motion were granted. The trial court properly denied his motion for relief from judgment. Mr. Harvey‘s fourth assignment of error is overruled.
CONCLUSION
{¶19} The trial court properly denied Mr. Harvey‘s motion to reduce spousal support and motion for relief from judgment. Any error by the court in finding Mr. Harvey in contempt was harmless or is moot. The judgment of the Wayne County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J.
CONCURS
BELFANCE, J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶20} I concur in the judgment. To say that the classification of criminal and civil contempt is a confused area of the law is an understatement. See, e.g., Internatl. Union, United Mine Workers of Am. v. Bagwell (1994), 512 U.S. 821, 839-40 (Scalia, J., concurring) (“As the Court‘s opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts.“). Thus, although I might have analyzed Mr. Harvey‘s first assignment of error differently, I nonetheless concur in the result. Accordingly, I concur in the judgment.
APPEARANCES:
R. J. HELMUTH, attorney at law, for appellant.
ROBERT W. ECKINGER, attorney at law, for appellee.