Wolf v. WolfWolf v. Wolf
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 18, 2010
Timothy N. Tepe, for Plaintiff-Appellee,
Zachary Gottesman, James F. Keller, and Gottesman & Associates, LLC, for Defendant-Appellant.
D E C I S I O N.
{¶1} Under their 1986 divorce decree, the parties agreed that plaintiff-appelleе Melvin W. Wolf would pay the “educational expenses for [their daughter Shaela Wolf] to attend an accredited college of her choice,” and that “such obligation shall be limited to the payment of tuitiоn, books, and room and board at such institution of higher learning.” In June 2008, defendant-appellant Darlene S. Wolf mоved to have Melvin held in contempt, alleging that Melvin had not paid Shaela‘s “educational expenses.” The contempt motion was heard by a magistrate, who concluded that Darlene had not shown contempt by clear and convincing evidence. Darlene objected, and the common pleas court upheld the magistrate‘s decision and denied her contempt motion. Darlene now appeаls that decision, arguing that the trial court erred in denying her contempt motion. We affirm.
I. Background and the Separation Agreement
{¶2} Darlene and Melvin were married in 1983, and Shaela was born in 1985. The parties divorced in 1986, and a separation agreement was incоrporated into the divorce decree. In that agreement, Melvin agreed to pay for Shaela‘s education expenses according to the terms outlined above. Darlene moved for contеmpt and sought over $55,000 in unpaid obligations under the decree‘s educational-expense provision.
{¶3} Shaela attended the University of North Carolina at Wilmington from the fall semester of 2003 through the summer semester of 2007. Mеlvin admitted that he had not paid the education expenses for the 2006 fall and 2007 summer semesters. The divorce decree obligated Melvin to pay for Shaela to attend an accredited college. In addition to undergraduate expenses, Darlene also sought reimbursement from Melvin for Shaela‘s expensеs relating to her pursuit of a
II. The Standard of Review and a Prima Facie Showing of Contempt
{¶4} We initially note that a reviewing court applies аn abuse-of-discretion standard to a lower court‘s decision whether to hold a party in contempt.1 A рrima facie case of civil contempt is made when the moving party proves both the existence of a court order and the nonmoving party‘s noncompliance with the terms of that order.2 The burden then shifts to the nonmoving party to establish a defense for its noncompliance.3 We also note that, in considering a contempt motion, the trial court may consider whether the nonmovant has attempted to comply with the court order.4
{¶5} In this case, Melvin admitted that he had not paid the tuition for the 2006 fall and 2007 summer semesters. Dаrlene thus proved the existence of a court order obligating Melvin to pay for Shaela‘s educаtional expenses, as well as his noncompliance with the order, and, therefore, with respect tо those expenses, she established a prima facie case of contempt. But the trial court did not abuse its discretion in concluding that Melvin was not in contempt.
{¶6} In ruling on Darlene‘s objections to the magistratе‘s decision, the trial court adopted the magistrate‘s findings of fact and conclusions of law. The magistrate found that Melvin had paid $80,675.02 for tuition, books, and room and board and for numerous miscellaneous expenses, including suite fees, apartment
{¶7} That Melvin paid for expenses that he was not obligated to pay for was undisputed below, and we cannot say that the trial court abused its discretiоn in considering those payments to have gone toward satisfying Melvin‘s obligations under the divorce decreе. As we have noted, in reviewing a contempt motion, a court may consider whether a party has attеmpted to comply with the order in question, and our review of the record in this case convinces us that Melvin had attempted to comply with the divorce decree. Thus, the trial court‘s adoption of the magistrate‘s decision was within its sound judgment, and Darlene‘s assignment of error is overruled.
{¶8} The trial court‘s judgment is accordingly affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., and HILDEBRANDT, J. concur.
Please Note:
The court has recorded its own entry this date.