619 N.E.2d 458 | Ohio Ct. App. | 1993
Robert G. Johnson appeals from a judgment of the trial court finding him in contempt for failing to obey the court's orders concerning distribution of marital property and offering a method by which Johnson may purge himself of that contempt.
The marriage of Robert G. Johnson and Corrine A. Johnson was terminated by dissolution in 1983. A separation agreement was incorporated into the decree. The agreement and decree provided that upon Robert's retirement as a public school teacher "he shall pay to wife 1/2 (one-half) of the total proceeds due him" from his teachers retirement pension.
The date of Robert's retirement was extended beyond that anticipated, without objection by Corrine. When Robert later did retire, he refused to pay Corrine her share of his retirement income. Corrine brought contempt proceedings.
The trial court found Robert in contempt. He was sentenced to serve a term of incarceration. The court further ordered that Robert could purge himself of contempt by taking certain actions. Among those was the following:
"4. Providing this Court with the authority pursuant to the Ohio Revised Code, Section
Robert appeals from the court's order, arguing (1) that the trial court is barred from making such an order because it amounts to an attachment of or execution against his teacher's retirement income, which is barred by R.C.
R.C.
R.C.
R.C.
"In any action in which support is ordered under Chapter 3115. or under section
A review of the statutory sections to which R.C.
We must conclude that an income-withholding order issued pursuant to R.C.
We agree that the trial court is not authorized by R.C.
"A property settlement provision contained in a separation agreement, which is subsequently incorporated into a divorce decree, or a decree of dissolution, is enforceable by contempt proceedings." Harris v. Harris (1979),
"When the contempt consists of the omission to do an act which the accused yet can perform, he may be imprisoned until he performs it."
It is clear that the court's order does not direct the prohibited act, the attachment of or execution against appellant's retirement fund directly, but is only an order allowing appellant to avoid incarceration by himself taking steps to divide the fund. The primary purpose of the order is to vindicate the authority of the court. State v. Kilbane (1980),
Appellant's assignment of error is sustained to the extent that the order of the trial court provides for an income-withholding order. The order of the trial court is reversed and the matter is remanded for further proceedings.
Judgment reversedand cause remanded.
WILSON and WOLFF, JJ., concur. *165