Huffer v. HufferHuffer v. Huffer
Rendered on March 25, 2010
Stewart E. Roberts, for appellant.
Roy H. Huffer, III, pro se.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
FRENCH, J.
{¶1} Plaintiff-appellant, Cheryl L. (Huffer) Swoyer (“Cheryl“), appeals the final judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, in her action for a divorce from defendant-appellee, Roy H. Huffer, III (“Roy“). For the following reasons, we affirm.
{¶2} Cheryl and Roy were married on July 14, 1983. Two children were born as issue of the marriage, and one child (“the minor child“) was still a minor at the time of
{¶3} On January 24, 2007, a magistrate issued temporary orders. The magistrate ordered a division of the parties’ debts and obligations, ordered Roy to maintain current levels of medical and hospitalization insurance for Cheryl and the minor child, and ordered that Cheryl pay 25 percent and Roy pay 75 percent of the minor child‘s extraordinary, uncovered healthcare expenses. By agreement, the original temporary orders did not address child custody, child support or spousal support.
{¶4} The magistrate issued modified temporary orders on August 1, 2007. The modified temporary orders designated both Cheryl and Roy as temporary residential parents and legal custodians of the minor child, established Roy‘s parenting time, ordered Roy to pay temporary child support of $398.29 per month plus processing charge, ordered Roy to pay temporary spousal support of $600 per month plus processing charge, and ordered Roy to pay Cheryl $1,000 for attorney fees and expenses within 45 days. The modified temporary orders amended the division of the parties’ debts and obligations but maintained the prior orders with respect to health coverage and the division of the minor child‘s uncovered health expenses.
{¶5} On August 24, 2007, Roy filed a motion for modification of the temporary orders pursuant to
{¶6} In April 2008, Roy filed objections to the magistrate‘s finding of contempt and a motion to set aside the magistrate‘s order denying his motion to modify the temporary orders. On October 22, 2008, the trial court granted Roy‘s motion to set aside. The court concluded that, in light of Roy‘s income and his child support obligations under the modified temporary orders, an award of temporary spousal support was unjust and inequitable. The court modified the August 1, 2007 temporary orders and vacated the temporary award of spousal support and the interim awards of attorney fees to Cheryl. The court ordered Roy to pay child support of $353.92 per month plus processing charge, effective June 1, 2007, and to pay half of any extraordinary, uninsured healthcare expenses for the minor child. The court vacated the magistrate‘s finding of contempt “[i]n light of the grant of [Roy‘s] motion to set aside
{¶7} On February 17, 2009, the trial court entered an Agreed Shared Parenting Decree, approving a Shared Parenting Plan executed by the parties, and an Agreed Judgment Entry [and] Final Decree of Divorce (“Agreed Entry“). The Shared Parenting Plan established Roy‘s child support obligation, and the Agreed Entry required Roy to pay spousal support in the amount of $1 per year. The Agreed Entry further stated as follows:
10. Preservation Of Temporary Orders. This Court‘s Temporary Orders are hereby preserved and incorporated into this Final Decree of Divorce. Specifically, the Court finds that as of date of Decree of Divorce that there is an over payment in child/spousal support in the amount of $9,575.00 which shall be satisfied from [Cheryl‘s portion of] the proceeds from the sale of the Markison Avenue property. This Court finds that as of February 17, 2009 the child/spousal support account shall be zeroed out and that the Franklin County Child Support Enforcement Agency‘s (CSEA) records shall reflect the same.
The Agreed Entry resolved every issue before the trial court except the parties’ entitlement to attorney fees.
{¶8} The trial court held a hearing on the issue of attorney fees on April 20, 2009. At the hearing, Cheryl submitted documents, including her attorney‘s time log, in support of her request for attorney fees, and she and her attorney testified. Although Roy filed a motion for attorney fees and costs on April 8, 2009, he withdrew his motion at the April 20, 2009 hearing and presented no evidence. Roy‘s counsel argued, however, that the facts and circumstances of this case did not justify an award of attorney fees in favor of Cheryl. On May 14, 2009, the trial court entered its final
{¶9} In her timely appeal, Cheryl sets forth the following four assignments of error:
I. The Trial Court committed error prejudicial to [Cheryl], abusing its discretion, by sustaining, against the manifest weight of the evidence, [Roy‘s] Objections to the Magistrate‘s Decision of March 26, 2008.
II. The Trial Court committed error prejudicial to [Cheryl], abusing its discretion, by vacating the Magistrate‘s April 1, 2008 finding of contempt against [Roy].
III. The Trial Court committed error prejudicial to [Cheryl], abusing its discretion, against the manifest weight of the evidence, by vacating / modifying the Temporary Orders issued by the Magistrate on August 1, 2007.
IV. The Trial Court committed error prejudicial to [Cheryl], abusing its discretion, against the manifest weight of the evidence, in deciding and holding that [Cheryl] was not entitled to an award of attorney‘s fees pursuant to O.R.C. Section 3105.73(A).
{¶10} Cheryl has also filed a motion to strike Roy‘s appellate brief based on non-compliance with
{¶12} Temporary orders allocating custody between parents or requiring temporary child or spousal support are interlocutory orders, not final judgments. See State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 554, 1998-Ohio-298; Brooks v. Brooks (Apr. 30, 1998), 10th Dist. No. 97APF10-1323. Thus, both the August 1, 2007 modified temporary orders and the October 22, 2008 judgment entry again modifying the temporary orders were interlocutory. The Supreme Court of Ohio has held that, “[i]n a domestic relations action, interlocutory orders are merged within the final decree, and the right to enforce such interlocutory orders does not extend beyond the decree, unless they have been reduced to a separate judgment or they have been considered by the trial court and specifically referred to within the decree.” Colom v. Colom (1979), 58 Ohio St.2d 245, syllabus. Thus, the modified temporary orders merged into the final
{¶13} Not only does the existence of a final order render moot any argument regarding the temporary orders based on the doctrine of merger, but, here, Cheryl expressly agreed to incorporate the temporary orders, as modified on October 22, 2008, into the Agreed Entry. Thus, even to the extent that any argument regarding the substance of the temporary orders remained viable, Cheryl waived any such argument by agreeing to incorporate the modifications into the Agreed Entry. For these reasons, we render moot Cheryl‘s first and third assignments of error.
{¶14} By her second assignment of error, Cheryl argues that the trial court erred by vacating the magistrate‘s finding that Roy was in contempt of court based on his failure to pay child support and spousal support under the August 1, 2007 modified temporary orders.
{¶15} Contempt may be defined, in general terms, as disobedience of a court order. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15. Courts distinguish between civil and criminal contempt proceedings, based on the purpose to be served by the sanction. Id. Civil contempt is characterized as a violation against the party for whose benefit the order was made, and sanctions for civil contempt are designed to compel obedience with the court order. Id. at 555. By contrast, criminal contempt is characterized as an offense against the dignity or process of the court, and sanctions for criminal contempt are punitive and designed to vindicate the court‘s authority. Id. Criminal contempt is usually sanctioned with an unconditional prison sentence with no opportunity for the contemnor to purge himself or herself of the
{¶16} Here, the magistrate found Roy in contempt of court for failing to pay child support, spousal support, and attorney fees, as ordered in the August 1, 2007 modified temporary orders. The magistrate afforded Roy the opportunity to purge the contempt by making established payments toward the support arrearages and paying the ordered attorney fee award to Cheryl. The failure to pay court-ordered support is a basis for civil contempt. Williams v. Williams (May 22, 1986), 10th Dist. No. 86AP-65; DeMarco v. DeMarco, 10th Dist. No. 09AP-405, 2010-Ohio-445, ¶25, citing Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139-40. The magistrate‘s finding of contempt here was clearly civil in nature, with the purpose of urging Roy‘s compliance with the modified temporary orders.
{¶17} It is well-established that the settlement of a case that gave rise to a civil contempt sanction renders the contempt proceeding moot because the case has come to an end. Corn at 555, citing Gompers v. Buck‘s Stove & Range Co. (1911), 221 U.S. 418, 451-52, 31 S.Ct. 492, 502. Additionally, when compliance with the court‘s order has become moot, a contempt proceeding based on non-compliance with that order is likewise moot. Alessio v. Alessio, 10th Dist. No. 05AP-988, 2006-Ohio-2447, ¶37, citing Natl. Equity Title Agency, Inc. v. Rivera, 147 Ohio App.3d 246, 2001-Ohio-7095, ¶13, and Corn at 555. Here, the parties settled their divorce action by executing the Agreed Entry, thus rendering moot the question of enforcing the contempt finding, even had the trial court not vacated the contempt finding. Furthermore, it is undisputed that Roy, in fact, paid the arrearage that formed the basis of the magistrate‘s finding of contempt. In fact, in the Agreed Entry, Cheryl agreed that there was an overpayment in child and
{¶18} By her fourth and final assignment of error, Cheryl contends that the trial court erred by denying her request for attorney fees, pursuant to
{¶19} To determine whether an award of attorney fees is equitable, “the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.”
{¶20} In its decision and judgment entry denying Cheryl‘s request for fees, the trial court reviewed many of the instances of conduct upon which Cheryl relied. The court considered Cheryl‘s allegations regarding Roy‘s failure to pay temporary support, which formed the basis of the magistrate‘s finding of contempt, later vacated by the trial court. The court also considered Cheryl‘s allegations regarding the parties’ negotiations for an agreement permitting Roy to sell certain stocks, when Roy had already sold the stocks without court approval or Cheryl‘s knowledge. The court noted, however, that the agreement for Roy to sell the stocks ultimately benefited Cheryl because the proceeds from the stock sale were used to cure Roy‘s support arrearages. The court further considered Cheryl‘s contention that she incurred additional attorney fees as a result of Roy‘s filing of documents without his counsel‘s knowledge, Roy‘s failure to appear for a court date due to alleged illness, and Roy‘s delay in executing a quit claim deed for the marital residence after the Agreed Entry. The court ultimately concluded, however, that, upon consideration of the totality of the facts and circumstances, “an award of attorney fees to either party would not be equitable.” (Emphasis sic.) The trial court‘s finding was not unreasonable, arbitrary or unconscionable.
{¶21} Even had the trial court believed the testimony presented that certain, identifiable portions of Cheryl‘s attorney fees were the direct result of Roy‘s conduct, the court was not required to grant an award of attorney fees if it otherwise concluded that an award was not equitable. In considering Cheryl‘s arguments, the court noted that
{¶22} Having rendered moot Cheryl‘s first, second, and third assignments of error, and overruled her fourth assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Motion to strike denied; judgment affirmed.
TYACK, P.J., and SADLER, J., concur.
FRENCH, J.
TYACK, P.J.
SADLER, J.