Mackey v. MackeyMackey v. Mackey
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 29, 2010
APPEARANCES:
For Plaintiff-Appellee
JOHN H. SIMPSON
46 Federal Avenue NW
Massillon, Ohio 44647
For Defendant-Appellant
LORRIE E. FUCHS
Post Office Box 35787
Canton, Ohio 44735
{¶1} Appellant Richard Mackey appeals from the decision of the Stark County Court of Common Pleas, Domestic Relations Division, which found appellant in contempt of court subsequent to a divorce between appellant and Appellee Sherry Mackey. The relevant facts leading to this appeal are as follows.
{¶2} Appellant and appellee were married on June 13, 1989. They hаd two children together, both of whom are now emancipated.
{¶3} Appellee filed a complaint for divorce on November 3, 2006. Appellant filed an answer and counterclaim on November 21, 2006.
{¶4} On November 27, 2006, a family court magistrate issued temporary orders, directing appellant, among other things, to pay appellee $525.00 per month in temporary spousal support and to pay the mortgage, utilities, and telephone bills.
{¶5} On October 18, 2007, the case proceeded to an evidentiary hearing before another family court magistrate. The magistrate issued her decision on November 15, 2007.
{¶6} Both sides thereafter filed objections to the magistrate‘s decision. The objections were heard before the trial court judge on February 11, 2008. All objections were overruled by the court.
{¶7} The trial court issued a final decree of divorce on March 10, 2008, incorporating the decision of the magistrate. The court thus ordered, inter alia, that appellant was to pay spousal support to appellee, commencing November 1, 2007, in the amount of $1,300.00 per month fоr seventy-two months, or until the death of either party or remarriage by appellee. “All support” was ordered to be paid through the Stark
{¶8} On November 20, 2008, appellee filed a motion to show cause, alleging, inter alia, that aрpellant had failed to pay court-ordered attorney fees and spousal support, and had failed to complete the aforecited repairs on the Ford Taurus and transfer title thereon. On February 24, 2009, the court found appellant guilty of willful contempt оn the issue of failure to pay attorney fees. Sentencing and additional evidence on the remaining contempt issues (failure to pay spousal support and failure to repair the Ford Taurus) were set for an additional hearing on May 18, 2009.
{¶9} On May 19, 2009, the court found appellant had purged the contempt finding regarding attorney fees, but otherwise ruled as follows:
{¶10} “As to the remaining issues, the court does find that the defendant is GUILTY of WILLFUL CONTEMPT as alleged specifically in Paragraphs 4 and 5 in the 11-19-8 Affidavit of Sherry L. Mackey.
{¶11} “Richard Mackey is sentenced to the Stark County Jail for 30 days and fined $250 + costs. Richard Mackey shall report to the jail on July 1, 2009 @ 9am and he‘ll be released on July 30, 2009 @ 6pm.
{¶13} “1. Pays the arrears of $5,672.47 reflеcted on the plaintiff‘s exhibit 1;
{¶14} “2. Pays partial attorney fees to Atty. Simpson of $1,500; and
{¶15} “3. Pays the costs of this action;
{¶16} “4. Pays $200 to the plaintiff for the scrap value of the Taurus.” Judgment Entry at 1.
{¶17} On June 16, 2009, appellant filed a notice of appeal. He herein raises the following three Assignments of Error:
{¶18} “I. THE TRIAL COURT‘S DECISION THAT PAYMENTS MADE DIRECTLY TO THE SPOUSE WERE A GIFT AND THEREFORE DID NOT REDUCE APPELLANT‘S SPOUSAL SUPPORT OBLIGATION WAS CONTRARY TO LAW, CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT, AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶19} “II. THE TRIAL COURT‘S FINDING THAT APPELLANT WAS IN CONTEMPT OF COURT WITH REGARD TO THE FORD TAURUS CONSTITUTED AN ABUSE OF DISCRETION AS LATER EVENTS RENDERED THE COURT‘S ORDER MOOT SINCE THE CAR BECAME INOPERABLE FOR UNRELATED REASONS AND WORTH LESS THAN THE COST OF REPAIRS.
{¶20} “III. THE TRIAL COURT‘S FAILURE TO RULE ON APPELLANT‘S MOTION FOR STAY PENDING APPEAL CONSTITUTES AN ABUSE OF DISCRETION AS A VALID COURT ORDER CURRENTLY REQUIRES APPELLANT TO SERVE THIRTY DAYS IN JAIL COMMENCING JULY, 2009 AND A WARRANT
I.
{¶21} In his First Assignment of Error, appellant contends the trial court abused its discretion in finding that certain direct payments made by appellant to appellee did not constitute spousal support payments applicable to the arrearage owed. We disagree.
{¶22} A trial cоurt‘s decision concerning spousal support may only be altered if it constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83. Likewise, a trial court‘s ruling on spousal support arrearages is reviewed under an abuse of discretion standard. See, e.g., Stychno v. Stychno, Trumbull App.No. 2002-T-0083. 2003-Ohio-3064. An abuse of discretion cоnnotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶23} In the case sub judice, the court found that appellant owed spousal support arrearages in the amount of $5,672.47, as reflected оn appellee‘s hearing exhibit 1 (as of April 30, 2009). Judgment Entry, May 19, 2009, at 2. Appellant herein specifically challenges the court‘s decision not to credit to said arrearages the payments appellant made for the mortgage (totaling $2,566.90), utilities (totaling $536.86), and spousal suрport (totaling $2,625.00), all of which were paid directly and not through the Stark County CSEA. Appellant points out that none of these amounts were disputed by appellee. See Tr. May 18, 2009, at 18-20, 26-27.
{¶24} Appellant directs us to
{¶25} “Any payment of money by the person responsible for the support payments under a support order to the person entitled to receive the support payments that is not made to the office of child support, or to the child support enforcement agency administering the support order under sections 3125.27 to 3125.30 of the Revised Code, shall not be considered a payment of support under the support order and, unless the payment is made to discharge an obligation other than support, shall be deemed to be a gift.”
{¶26} Appellant argues that the aforesaid statute encompasses child support only, and therefore direct spousal support payments need not be classified as “gifts.” Our review of some of the pertinent statutes suggests that both spousal support and child support are encompassed by the “gift” rule set forth in
{¶27} In addition, the General Assembly has authorized the direct payment of sрousal support in certain circumstances, subject to the trial court‘s discretion. See
{¶28} Accordingly, we are unable to conclude the trial court‘s refusal to credit to appellant his various direct payments rose to the level of an abuse of discretion.
{¶29} Appellant‘s First Assignment of Error is overruled.
II.
{¶30} In his Second Assignment of Error, appellant contends the trial cоurt abused its discretion in finding him in contempt regarding the issue of repairing the Ford Taurus automobile. We disagree.
{¶31} Ohio courts have defined contempt of court as “conduct which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions.” Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus. Our standard of review regarding a finding of contempt is limited to a determination of whether the
{¶32} At the evidentiary hearing on the objections, appellant presented evidence that the damage to the vehicle was discovered to be more extensive than initially apparent. Nonetheless, appellant‘s own testimony and that of his witness, Lloyd Dietz of Massillon Auto Salvage, established that appellant, in violation of the court‘s orders, failed to put four new tires on the Taurus, failed to bring the vehicle to good working condition, and further failed to transfer title to appellee. Tr., May 18, 2009, at 42-43, 53-54. Appellant points out that despite the contempt finding, the trial court reached the conclusion that the car ultimately only had a scrap value of $200.00. See Judgment Entry at 1. Nonetheless, even though the vehicle in question had depreciated significantly as the case progressed, although through no fault of appellee, we hold appellant has not established the existence of an abuse of discretion in the trial court‘s contempt finding under the circumstances presented.
{¶33} Appellant‘s Second Assignment of Error is overruled.
III.
{¶34} In his Third Assignment of Error, appellant contends the trial court abused its discretion in failing to rule on his request for a stay pending appeal. We disagree.
{¶35}
{¶36} We note that a party seeking a stay pending appeal is not required under
{¶37} Appellant‘s Third Assignment of Error is overruled.
{¶38} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
/S/ JOHN W. WISE
/S/ SHEILA G. FARMER
JUDGES
JWW/d 0309
{¶39} I concur in the majority‘s analysis and disposition of Appellant‘s second and third assignments of error.
{¶40} However, I respectfully dissent from the majority‘s disposition of Appellant‘s first assignment of error. My reasons follow.
{¶41}
{¶42} “(i) Judgment. The сourt may enter a judgment either during the fourteen days permitted by
{¶43} The majority finds no abuse of discretion in thе trial court‘s refusal to credit Appellant with the direct payments he made to Appellee, following the issuance of the magistrate‘s decision, but prior to the trial court‘s ruling on his objections thereto. The majority bases its conclusion on the fact the magistrate‘s decision clearly ordered Appellant to pay all support through CSEA, and such decision was ultimately adopted by the trial court.
{¶44} The Magistrate‘s Decision was issued on November 15, 2007. The trial court entered judgment on the same day. When Appellant subsequently filed his objections to the magistrate‘s decision, such filing operated as an automatic stay of execution of the judgment. Accordingly, the magistrate‘s decision was not in effect.
{¶45} Accordingly, I would sustain Appellant‘s first assignment of error.
HON. WILLIAM B. HOFFMAN
For the rеasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, is affirmed.
Costs assessed to appellant.
/S/ JOHN W. WISE
/S/ SHEILA G. FARMER
JUDGES