Slish v. Slish , 2012 Ohio 1517 ( 2012 )

[Cite as Slish v. Slish, 2012-Ohio-1517.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHANIE SLISH : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011CA00080
JOHNNIE A. SLISH :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2005DR1457
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 29, 2012
APPEARANCES:
For Appellant: For Appellee:
JOHNNIE A. SLISH, pro se RAYMOND T. BULES
P.O. Box 80311 JILL C. MCQUEEN
Canton, OH 44708 DAY KETTERER, LTD.
Suite 300, Millennium Center
200 Market Ave. N.
Canton, OH 44702
[Cite as Slish v. Slish, 2012-Ohio-1517.]
Delaney, J.
{¶1} Defendant-Appellant Johnnie A. Slish appeals the March 16, 2011
judgment entry of the Stark County Court of Common Pleas, Domestic Relations
Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Appellee were married on May 10, 2003. One child was
born as issue of the marriage. Appellant filed for divorce on November 21, 2005. On
March 10, 2006, the trial court granted the Decree of Divorce, which included the
parties’ Separation Agreement and Shared Parenting Plan.
{¶3} Under the Shared Parenting Plan, neither party was ordered to pay child
support nor was either party designated as the residential parent for school purposes.
{¶4} Pursuant to the Separation Agreement, Appellant was required to pay in
full an unsecured joint KeyBank line of credit, without contribution from Appellee.
Appellant was also required to refinance the line of credit within one year of the
Separation Agreement to remove Appellee from liability on the loan.
{¶5} When the child reached school age, Appellee moved the trial court to
designate her as the residential parent. In 2008, Appellee filed a Motion to Modify
Shared Parenting Plan, Motion to Modify Parental Rights and Responsibilities, and
Motion to Terminate Shared Parenting Plan. Appellant filed a Motion for Custody on
November 17, 2008. The motions were heard by the magistrate.
{¶6} On December 29, 2009, the magistrate issued a decision granting
Appellee’s motions. The magistrate’s decision terminated the Shared Parenting Plan,
designated Appellee as the residential parent and legal custodian, and established a
Stark County, Case No. 2011CA00080 3
child support obligation to be paid by Appellant. At the time of the decision, Appellant
claimed he was self-employed with a home improvement business. Appellant was
ordered to pay child support in the amount of $314.70 per month, starting January 1,
2010.
{¶7} Both parties filed objections to the magistrate’s decision. After a hearing
on the objections, the trial court adopted the magistrate’s decision on March 8, 2010.
{¶8} Appellant filed an appeal of the March 8, 2010 judgment entry. Appellant
did not file an appellate brief and this court dismissed the appeal for want of
prosecution.
{¶9} Appellee filed a Motion to Show Cause on May 3, 2010. In her motion,
Appellee requested an Order requiring Appellant to appear and show cause as to why
he should not be held in contempt for his failure to pay in full the KeyBank line of
credit, remove Appellee from the KeyBank line of credit, and his failure to pay child
support.
{¶10} The Guardian ad Litem also filed a Motion to Show Cause on July 30,
2010 for Appellant’s failure to pay guardian fees.
{¶11} Appellant filed a Notice of Bankruptcy on September 3, 2010 and the trial
court issued a Suggestion of Stay on September 7, 2010.
{¶12} On November 17, 2010, the trial court set the show cause motion for
hearing on February 3, 2011. Appellee filed an Amended Motion to Show Cause on
January 25, 201, renewing her May 3, 2010 Motion to Show Cause and adding a claim
that Appellant was driving their child while Appellant’s driver’s license was suspended
for his failure to pay child support.
Stark County, Case No. 2011CA00080 4
{¶13} An evidentiary hearing was held before the magistrate on February 3,
2011. The GAL’s Motion to Show Cause was not brought before the magistrate at that
hearing; the magistrate heard arguments only on child support and the KeyBank line
of credit. (Feb. 3, 2011 Hearing, T. 3.)
{¶14} Mary Hall of the Stark County Child Support Enforcement Agency
testified Appellant has not paid his child support obligation since it became effective
on January 1, 2010. Id. at 5. As of December 31, 2010, Appellant owed $3,776.40 for
child support and $75.48 for processing fees. Id. Appellant testified he was currently
unemployed because his construction business closed in November 2009. Id. at 24.
Appellant applied for work, but could not get a job due to the economy and Appellant’s
lack of a driver’s license. Id. at 24. Appellant filed bankruptcy, which discharged his
debt. Id. at 25. His only debt was his electric bill. Id. Appellant was charged with
theft in the Massillon Municipal Court and paid restitution in the amount of $3,000 on
May 19, 2010. Id. at 32. Appellant testified his mother paid the restitution. Id. at 33.
{¶15} As to the KeyBank line of credit, Appellee testified per the Separation
Agreement, Appellant was required to pay the line in credit and obtain refinancing on
the line of credit to remove Appellee from the obligation. Id. at 10. The parties used
the line of credit for their personal use while married. Id. at 11. The collection
department of KeyBank contacted Appellee in the Spring of 2010 for collection on the
line of credit. Id. Appellee was aware Appellant discharged his liability on the line of
credit through his bankruptcy proceeding. Id. at 12. Appellant testified he could not
obtain refinancing on the line of credit from KeyBank and he now cannot refinance the
Stark County, Case No. 2011CA00080 5
line of credit because it has been discharged in bankruptcy. Id. at 22. Appellee did
not challenge the discharge of the line of credit in bankruptcy court. Id. at 17.
{¶16} At the conclusion of the hearing, the magistrate found Appellant in
contempt for his failure to pay child support. Id. at 40. The magistrate sentenced
Appellant to 30 days in jail. Id. An imposition hearing before the judge was set on
March 16, 2011. The magistrate also awarded Appellee $3,300 in attorney’s fees at a
rate of $100 per month until paid in full. A magistrate’s decision was issued February
8, 2011.
{¶17} Appellant filed objections to the magistrate’s decision.
{¶18} A hearing before the judge was held on March 16, 2011. The issues of
the GAL fees and the KeyBank line of credit were raised under the question of
whether those items could be discharged in bankruptcy. (Mar. 16, 2011 Hearing, T.
9.) In its March 16, 2011 judgment entry, the judge ordered the issue of contempt on
the GAL fees and the KeyBank line of credit to be continued until July 6, 2011 pending
determination by the Bankruptcy Court as to whether those items were dischargeable
in bankruptcy. The trial court approved and adopted the magistrate’s recommendation
that Appellant be found in contempt for his failure to pay child support. The trial court
sentenced Appellant to ten days in jail and suspended twenty days subject to a review
hearing on July 6, 2011.
{¶19} It is from this decision Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶20} Appellant’s pro se brief does not comply with App.R. 16(A). Among its
omissions, Appellant’s brief does not contain a statement of the assignments of error.
Stark County, Case No. 2011CA00080 6
App.R. 16(A)(3) requires the brief of the appellant to contain a statement of the
assignments of error presented for review, with reference to the place in the record
where each error is reflected.
{¶21} Appellant makes the following statements in his brief: (1) “[t]he first
assignment of error was the guilty charge of the contempt of failure to pay child
support;” (2) “[t]he next finding of fact and error of judgment is an old Key Bank Loan
written into the divorce decree in March 2006;” and (3) “the next order, is GAL fees
that were allowed to be presented during the same trial date.”
{¶22} We will consider the above to be Appellant’s Assignments of Error.
ANALYSIS
I.
FINAL APPEALABLE ORDER
{¶23} The first issue we determine is whether the March 16, 2011 judgment
entry is a final appealable order. Appellee’s Motion for Show Cause requested a
finding of contempt on Appellant’s failure to pay child support and Appellant’s failure to
remove Appellee from the KeyBank line of credit. The magistrate found Appellant in
contempt of his failure to pay child support and sentenced Appellant to 30 days in jail.
The trial court approved and adopted the magistrate’s decision and sentenced
Appellant to 10 days in jail, suspending twenty days pending review on July 6, 2011.
The trial court also set a hearing on the KeyBank line of credit issue for July 6, 2011.
Because there is a pending matter before the trial court, we must determine whether
the March 16, 2011 judgment entry is a final appealable order.
Stark County, Case No. 2011CA00080 7
{¶24} Appellate jurisdiction is limited to review of lower courts' final judgments.
Ohio Constitution, Article IV, Section 3(B)(2). To be a final, appealable order, a
judgment entry must meet the requirements of R.C. 2505.02 and, if applicable, Civ.R.
54(B). Heckathorn v. Heckathorn, 5th Dist. No. 2006CA00189, 2007-Ohio-5520, ¶ 8
citing Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64(1989). “In Ohio, the general rule for contempt proceedings is that a judgment of
contempt becomes a final appealable order when there is a finding of contempt and
the imposition of a penalty.” Home S. & L. v. Avery Place, L.L.C., 5th Dist. No. 11
CAE 03 0024, 2011-Ohio-4744, ¶ 17. This court has held that an order which finds a
party in contempt and imposes a suspended jail sentence is a final appealable order.
Peterson v. Peterson, 5th Dist. No. 2003-0049, 2004-Ohio-4714, ¶ 8.
{¶25} We find the March 16, 2011 judgment entry is a final appealable order.
The magistrate found Appellant in contempt for his failure to pay child support and
sentenced Appellant to 30 days in jail. The trial court approved and adopted the
decision, sentencing Appellant to 10 days in jail and suspending 20 days. We find the
issue of Appellant’s contempt for his nonpayment of child support is ripe for our
review.
CONTEMPT
{¶26} We next determine whether the trial court erred in finding Appellant in
contempt for his failure to pay child support. An appellate court's standard of review of
a trial court's contempt finding is abuse of discretion. State ex rel. Celebrezze v.
Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). In order to find an abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
Stark County, Case No. 2011CA00080 8
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,
5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶27} A contempt finding may be civil or criminal in nature. In Brown v.
Executive 200, Inc., 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610 (1980), the Supreme
Court of Ohio discussed the distinction between civil and criminal contempt as follows:
While both types of contempt contain an element of punishment,
courts distinguish criminal and civil contempt not on the basis of
punishment, but rather, by the character and purpose of the punishment.
* * * Punishment is remedial or coercive and for the benefit of the
complainant in civil contempt. Prison sentences are conditional. The
contemnor is said to carry the keys of his prison in his own pocket * * *
since he will be freed if he agrees to do as ordered. Criminal contempt,
on the other hand, is usually characterized by an unconditional prison
sentence. Such imprisonment operates not as a remedy coercive in its
nature but as punishment for the completed act of disobedience, and to
vindicate the authority of the law and the court. * * * (Citations omitted.)
Graber v. Siglock, Stark App. No.2000CA00176, 2002-Ohio-6177.
{¶28} If a party makes a good faith effort to pay support, contempt is not
justified. Raleigh v. Hardy, 5th Dist. No. 08 CA 0140, 2009-Ohio-4829, ¶ 47 citing
Courtney v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3rd Dist.1984). The
burden to show an inability to pay is on the party being held in contempt. Id. citing
Farrell v. Farrell, 5th Dist. No. 2008-CA-0080, 2009-Ohio-1341, ¶ 15.
Stark County, Case No. 2011CA00080 9
{¶29} We find no abuse of discretion by the trial court to find Appellant in
contempt for his failure to pay any child support since it was imposed by the trial court
on December 29, 2009. We further find there was no demonstration by Appellant that
he made a good faith effort to pay his child support or that he had an inability to pay.
{¶30} Appellant argued during the contempt proceedings the child support
calculations were incorrect. Appellant had the opportunity to appeal the child support
calculation but failed to file his appellate brief, resulting in the dismissal of his appeal
for failure to prosecute. At the time child support was calculated in December 2009,
Appellant claimed he was employed. At the contempt hearing, Appellant stated he
closed his business in November 2009. A review of the docket shows that Appellant
never moved the trial court for a modification of his child support obligations based on
his unemployment.
{¶31} Appellant states his inability to pay is based on his unemployment and
his lack of a valid driver’s license. At the hearing it was shown on May 19, 2010,
Appellant paid $3,000 in restitution for his criminal case before the Massillon Municipal
Court. On February 3, 2011, Appellant owed $3,776.40 in child support.
{¶32} Upon this record, we find no abuse of discretion by the trial court to find
Appellant in contempt for failing to pay child support. Appellant’s first Assignment of
Error is overruled.
II., III.
{¶33} Appellant argues in his second Assignment of Error the trial court erred
as to the KeyBank line of credit. In his third Assignment of Error, Appellant contends it
was error to allow argument about the GAL fees.
Stark County, Case No. 2011CA00080 10
{¶34} The trial court did not rule on Appellee’s motion to show cause as to the
KeyBank line of credit. The trial court also has not ruled on the July 30, 2010 motion
to show cause filed by the GAL. We find these issues are not properly before this
court.
{¶35} Accordingly, we overrule Appellant’s second and third Assignments of
Error.
CONCLUSION
{¶36} The judgment of the Stark County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
[Cite as Slish v. Slish, 2012-Ohio-1517.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHANIE SLISH :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHNNIE A. SLISH :
:
: Case No. 2011CA00080
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs
assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER