GARY ROSE v. DRAZANA ROSE
No. 99933
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 21, 2013
[Cite as Rose v. Rose, 2013-Ohio-5136.]
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-262110
BEFORE: Keough, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 21, 2013
Kevin J.M. Senich
4438 Pearl Road
Cleveland, Ohio 44109
ATTORNEY FOR APPELLEE
Laurence A. Turbow
Laurence A. Turbow, L.P.A., Inc.
4403 St. Clair Avenue, Suite 300
Cleveland, Ohio 44103
{¶1} Plaintiff-appellant, Gаry Rose, appeals from the trial court‘s judgment that overruled his objections and adopted the magistrate‘s decision that found him in contempt аnd ordered him to pay defendant-appellee, Drazana Rose, $5,000 plus statutory interest from June 14, 2000, and attorney fees in the amount of $3,887.50. For the reasons that follow, we affirm.
I. Background
{¶2} Gary and Drazana were divorced on June 15, 2000. The divorce decree adopted the parties’ separatiоn agreement, wherein the parties agreed that Gary would pay Drazana $5,000 for her equity in the marital home and $10,000 in spousal support as follows: $5,000 on or before June 1, 2005 and $5,000 on or before June 1, 2010. The parties further agreed to the following penalties for missed payments:
If the husband fails to pay the wife $5,000 within 90 days of the journalization of this decree then husband shall be responsible to pay wife the entire $15,000 due hereunder for which judgment shall be rendered and execution may issue. If the husband fails to pay the wife the sum of $5,000 due June 1, 2005, within 30 days of that date, then the husband shall be responsible to pay the wife the entire remaining balance of $10,000 due hereunder including interest at the statutory rate from June 14, 2000 on the remaining balance. If the husband fails to pay to the wifе the sum of $5,000 due on June 10, 2010 within 30 days of that date, then the husband shall be responsible to pay the wife the remaining balance of $15,000 due hereunder including interest аt the statutory rate from June 14, 2000 on the remaining balance.
{¶3} Gary timely paid Drazana $5,000 for her equity in the marital home and timely made the $5,000 spousal supрort payment due on June 1, 2005. He did not make
{¶4} Nearly two years later, on March 12, 2012, Drazana filed a motion to show cause why Gary should not be held in cоntempt for his failure to pay the $5,000 he still owed her. The motion was heard by a magistrate on January 10, 2013. The magistrate subsequently issued a decision contаining findings of fact and conclusions of law. The magistrate found Gary in contempt and granted judgment to Drazana in the amount of $5,000, plus statutory interest from June 14, 2000. Thе magistrate further ordered that Gary pay Drazana attorney fees related to her motion to show cause in the amount of $3,887.50.
{¶5} Finally, the magistrate sentenced Gary to 30 days in jail on the contempt finding. The magistrate ordered, however, that Gary‘s sentence “will be purged provided that the Support Obligor [i.e., Gary] fully satisfies, or makes written arrangements with the Defendant [i.e., Drazana] to fully satisfy, the aforementioned judgment for ‘$5,000 plus statutory interest from 6/14/2000’ within 30 dаys of the journalization of this order.”
{¶6} Gary subsequently filed objections to the magistrate‘s decision. The trial court overruled Gary‘s objections and adopted the magistrate‘s decision. Gary now appeals from the trial court‘s judgment.
II. Analysis
{¶7} A trial court may employ sanctions to coerce a party who is in contempt into complying with a court order. Whitman v. Monastra, 8th Dist. Cuyahoga No. 76633, 2000 Ohio App. LEXIS 4637, *17 (Oct. 5, 2000). However, any sanction for civil
{¶8} In his single assignment of error, Gary argues that the trial court abused its discretion by imposing a purge order that was unreasonable and impossible to comply with.
{¶9} The trial court offered Gary two ways to purge his contempt and avoid the 30-day jail sentence. The first condition required Gary to pаy Drazana $10,729.901 within 30 days of the journalization of the trial court‘s order. Gary argues that this condition was unreasonable because although the trial court found that his income had decreased substantially from the date of the divorce decree, it made no finding that he had the financial ability to satisfy the outstanding obligation. Gary contends that it was unreasonable for the trial court to find that he was in contempt for not paying Drazana $5,000 in 2010 but then order that he could purge the contempt by making a lump sum payment to her of $10,729.90.
{¶10} But unsupported claims of financial difficulty or an inability to pay are
{¶11} Moreover, the magistrate found that Gary‘s testimony regarding his alleged inability to pay Drazana in compliance with the divorce decree was “lacking in credibility.” Rather, thе magistrate found that “[t]he evidence that is credible and convincing makes it clear that it was not the Plaintiff‘s lack of ability to comply with the court‘s оrder, but his lack of will to do so that pertained, and continues to do so.” The magistrate based this conclusion on “credible and convincing evidenсe” that in the years 2010 and 2011, Gary received tax refunds of $4,000 and $3,500 respectively but paid none of these funds to Drazana. The magistrate noted that “[t]he lаck of even a partial payment to the Defendant indicates a lack of good faith on the part of the Plaintiff with regard to his obligations under the Court order.” Without any evidence that he was unable to pay Drazana, Gary failed to demonstrate that the trial court‘s requirement of a lumр sum payment to Drazana was an unreasonable condition to purge his contempt.
{¶12} In the alternative, the trial court ordered that Gary could purge the contempt finding by making written arrangements with Drazana regarding how he would fully satisfy the judgment.
{¶14} Gary next argues that this condition is impossible to comply with because he cannot force Drazana to agree to any payment arrangement. Gary‘s assertion of impossibility seems highly dubious in light of Drazana‘s interest in obtaining payment from Gary. But more importantly, Gary offered no evidence whatsoever to support his claim of impossibility; he merely claims that it would bе impossible to obtain a written agreement from Drazana because the divorce proceedings were long and contentious. Without any еvidence, Gary‘s unsupported claim is insufficient to demonstrate that it would be impossible to satisfy the purge condition.
{¶15} We find that Gary has failed to prеsent any evidence to establish that the trial court‘s purge conditions were unreasonable and impossible for him to satisfy. Accordingly, we hold that thе trial court did not abuse its discretion in imposing the purge conditions. The assignment of error is overruled.
{¶16} Affirmed.
It is ordered that appellee recovеr from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a speciаl mandate be sent to said court to carry this judgment into
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR