State ex rel. Yost, Atty. Gen. v. Anthony , 2022 Ohio 3188 ( 2022 )

[Cite as State ex rel. Yost, Atty. Gen. v. Anthony, 2022-Ohio-3188.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO EX REL.
DAVID YOST, ATTORNEY :
GENERAL,
:
Plaintiff-Appellee, Case No. 22CA2
:
vs.
:
MARK ANTHONY, et al., DECISION AND
JUDGMENT ENTRY
:
Defendants-Appellants.
:
________________________________________________________________
APPEARANCES:
Mary C. Ansbro, Columbus, Ohio, for appellants.
Michael E. Idzkowski, Timothy J. Kern, and Allen M. Vender,
Columbus, Ohio, for appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-7-22
ABELE, J.
{¶1} This is an appeal from a Hocking County Common Pleas
Court judgment that found Mark Anthony, defendant below and
appellant herein, and related entities, in contempt of a court
order.1
1
In general, “a court order finding a party in contempt and
imposing a sentence conditioned on the failure to purge is a
final, appealable order on the issue whether the party is in
contempt of court.” Docks Venture, L.L.C. v. Dashing Pacific
HOCKING, 22CA2
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
[BY] FAILING TO GIVE DEFENDANT MARK ANTHONY
A CONTINUANCE TO OBTAIN COUNSEL OF HIS
CHOICE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
[BY] FAILING TO SCREEN DEFENDANT MARK
ANTHONY FOR APPOINTED COUNSEL.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN MAKING THE PURGE CONDITION COMPLAINCE
[SIC] WITH THE PAYMENT PLAN.”
{¶3} On July 19, 2013, the State of Ohio, through its
Attorney General, filed a complaint for injunctive relief and
civil penalties based upon environmental violations that
appellant and related entities had committed. The parties later
resolved the allegations via an April 11, 2017 consent order.
The consent order required appellant and the related entities to
pay a $100,000 civil penalty.
{¶4} On September 27, 2021, appellee filed a motion for a
judgment debtor examination under R.C. 2333.09. The trial court
Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035,
¶ 23. Additionally, “a contemnor may have an additional appeal
on the question whether the purge conditions have been met
following execution of sentence on the failure to purge.” Id.3
HOCKING, 22CA2
granted the motion and set the matter for an October 21, 2021
hearing.
{¶5} On October 6, 2021, appellee filed a motion to show
cause and to hold appellant (and related entities) in contempt
for the failure to abide by the consent order. In particular,
appellee alleged that, since the date of the consent order,
appellant and related entities made only one $1,500 payment.
Appellee asked the court to schedule a hearing to allow
appellant and related entities to show cause why they should not
be held in contempt of court.
{¶6} Subsequently, the trial court entered an order that
directed appellant (as the authorized representative of the
related entities) to appear before the court and to show cause
why appellant should not be found in contempt of the consent
order. The court issued a summons and that notified appellant
(1) of the date and time of the show-cause hearing, (2) of his
right to counsel and that he could apply for a public defender
or court-appointed counsel, (3) that the court could refuse to
grant appellant a continuance at the time of the hearing for the
purpose of obtaining counsel if appellant failed to make a good
faith effort to retain counsel or to obtain a public defender,
and (4) of the potential sanctions that the court could impose.
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{¶7} On November 8, 2021, appellant was successfully served
with the summons and, on December 2, 2021, the trial court
scheduled the contempt hearing to be held on December 20, 2021.
{¶8} On December 20, 2021, appellant filed a written motion
to continue the hearing. Appellant stated that after he
received the notice to appear, he contacted his counsel, Eugene
Battisti, but could not reach him. Appellant claimed that
Battisti later returned appellant’s call, but Battisti informed
appellant that he would be unable to attend the contempt
hearing. Appellant asserted that Battisti had agreed to
represent appellant and would be available in mid to late
January. Appellant thus requested the court to continue the
matter until Battisti could appear.
{¶9} After consideration, the trial court overruled
appellant’s motion for a continuance. The court stated that (1)
appellant had been served with the contempt motion six weeks
earlier, on November 8, 2021, and (2) on December 2, 2021 the
court sent notice of the hearing date to appellant. The court
found that appellant thus had sufficient notice of the hearing
date and adequate time to retain an attorney to represent him at
the contempt hearing. Consequently, the court overruled his
motion.
5
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{¶10} At the December 20, 2021 contempt hearing, appellee
presented evidence that (1) appellant agreed to the April 11,
2017 consent order that required him to pay $100,000 pursuant to
a schedule, and (2) appellant has made one $1,500 payment.
{¶11} Appellant, appearing pro se, asserted that he does not
have the income to pay the amount owed under the consent order.
He also stated that he would like his attorney to be present, “I
want legal representation, but we’re marching forward. I don’t
know how to proceed with it all.” Appellant also declined the
opportunity to be sworn in and to testify, but instead opted to
present an argument. During his argument, he stated, “Inability
to pay is not contempt of court.”
{¶12} Appellee advised the court that it did not oppose
allowing appellant to present an argument. Appellee explained,
however, that if appellant claims inability to pay, appellee
wanted an opportunity to cross-examine appellant. The court
stated that it would treat appellant’s inability to pay as an
argument.
{¶13} Appellant also suggested that the trial court hold a
judgment debtor hearing to consider appellant’s ability to pay.
Appellee stated that the parties attempted to schedule a
judgment debtor hearing a few months earlier, but appellant
“ignored” the notice. Appellee further stated that it intended
6
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to request a judgment debtor hearing in the future if the court
finds appellant in contempt and appellant fails to pay as
ordered.
{¶14} On December 30, 2021, the trial court found appellant
and the other defendants in contempt for the failure to pay the
amounts due under the consent order. The court sanctioned
appellant to 30 days in jail, but stated that he could purge the
contempt and avoid jail by paying $5,000 within 30 days and
paying $5,000 per quarter until the entire amount is satisfied.
This appeal followed.
I
{¶15} In his first assignment of error, appellant asserts
that the trial court erred by failing to continue the contempt
hearing so that he could obtain counsel of his choosing.
Appellant argues that the court’s action violated his
constitutional right to counsel.
{¶16} Appellee, on the other hand, contends that the trial
court did not abuse its discretion by denying appellant’s motion
to continue the contempt hearing. Appellee points out that
appellant had six weeks to obtain counsel to represent him and
that he failed to do so. Appellee thus claims that appellant
cannot complain on appeal that the trial court wrongly denied
7
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his motion to continue and wrongly deprived him of any alleged
right to counsel.
{¶17} “The determination whether to grant a continuance is
entrusted to the broad discretion of the trial court.” State v.
Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶
147, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078(1981), syllabus; accord State v. Myers, 154 Ohio St.3d 405,
2018-Ohio-1903, 114 N.E.2d. 1138, ¶ 92. Consequently, “‘[a]n
appellate court must not reverse the denial of a continuance
unless there has been an abuse of discretion.’” State v. Jones,
91 Ohio St.3d 335, 342, 744 N.E.2d 1163 (2001), quoting Unger,
67 Ohio St.2d at 67; e.g., In re C.M., 4th Dist. Athens No.
17CA16, 2017-Ohio-9037, ¶ 40; In re A.S., 4th Dist. Pike No.
16CA878, 2017-Ohio-1166, ¶ 43.
{¶18} “‘[A]buse of discretion’ [means] an ‘unreasonable,
arbitrary, or unconscionable use of discretion, or * * * a view
or action that no conscientious judge could honestly have
taken.’” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–1966,
15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,
2008–Ohio–4493, 894 N.E.2d 671, ¶ 23. “An abuse of discretion
includes a situation in which a trial court did not engage in a
‘“sound reasoning process.”’” State v. Darmond, 135 Ohio St.3d
343, 2013–Ohio–966, 986 N.E.2d 971, ¶ 34, quoting State v.
8
HOCKING, 22CA2
Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, ¶
14, quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990). The abuse-of-discretion standard is deferential and
does not permit an appellate court to simply substitute its
judgment for that of the trial court. Darmond at ¶ 34.
{¶19} A trial court that is considering a motion to continue
should “[w]eigh[] against any potential prejudice to a defendant
* * * concerns such as a court’s right to control its own docket
against the public’s interest in the prompt and efficient
dispatch of justice.” Unger, 67 Ohio St.2d at 67. A court also
should consider:
the length of the delay requested; whether other
continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is
for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to
the request for a continuance; and other relevant
factors, depending on the unique facts of each case.
Id. at 67–68; accord State v. Conway, 108 Ohio St.3d 214, 2006–
Ohio–791, 842 N.E.2d 996, ¶ 147; State v. Jordan, 101 Ohio St.3d
216, 2004–Ohio–783, 804 N.E.2d 1, ¶ 45.
{¶20} An appellate court that is reviewing whether a trial
court abused its discretion by denying a motion to continue
applies “a balancing test” that recognizes “all [of] the
9
HOCKING, 22CA2
competing considerations.” Unger, 67 Ohio St.2d at 67.
Moreover, we observe that “‘[t]here are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is
denied.’” Id., quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Broom, 40 Ohio St.3d
277, 288, 533 N.E.2d 682 (1988) (“Obviously, not every denial of
a continuance constitutes a denial of due process.”).
Furthermore, the complaining party “must show how he was
prejudiced by the denial of the continuance before there can be
a finding of prejudicial error.” Broom, 40 Ohio St.3d at 288.
{¶21} In the case sub judice, we do not believe that the
trial court abused its discretion by overruling appellant’s
motion to continue the contempt hearing. Instead, we believe
that the trial court reasonably could have determined that
appellant had sufficient notice of the hearing and had ample
time to obtain counsel. The court noted that appellant received
service of the summons on November 8, 2021. The summons advised
appellant that (1) he had a right to counsel, (2) he had a right
to appointed counsel if indigent, and (3) the court may refuse
to grant a continuance at the time of the hearing if appellant
10
HOCKING, 22CA2
fails to make a good faith effort to obtain counsel.2 The court
also observed that on December 2, 2021, the court issued a
2
We observe that the summons in the case sub judice appears
to be drawn from language in R.C. 2705.031(C)(1) through (4).
Those provisions apply in failure-to-pay child and spousal
support cases and state as follows:
(C) In any contempt action initiated pursuant to
division (B) of this section, the accused shall appear
upon the summons and order to appear that is issued by
the court. The summons shall include all of the
following:
(1) Notice that failure to appear may result in the
issuance of an order of arrest, and in cases involving
alleged failure to pay support, the issuance of an order
for the payment of support by withholding an amount from
the personal earnings of the accused or by withholding
or deducting an amount from some other asset of the
accused;
(2) Notice that the accused has a right to counsel,
and that if indigent, the accused must apply for a public
defender or court appointed counsel within three
business days after receipt of the summons;
(3) Notice that the court may refuse to grant a
continuance at the time of the hearing for the purpose
of the accused obtaining counsel, if the accused fails
to make a good faith effort to retain counsel or to
obtain a public defender;
(4) Notice of the potential penalties that could be
imposed upon the accused, if the accused is found guilty
of contempt for failure to pay support or for a failure
to comply with, or an interference with, a parenting
time or visitation order or decree[.]
We do not find it necessary to discuss whether these same
requirements apply in a civil-contempt proceeding that does not
involve a failure to pay support. We simply note that the
summons that the trial court issued to appellant appears to
mirror most of the same language that appears in R.C.
2705.031(C)(1) through (4), and that including this language
appears to satisfy the Due Process Clause. See generally Turner
v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011);
11
HOCKING, 22CA2
notice that the contempt hearing would be held on December 20,
2021. This notice further stated that “all parties and counsel
shall appear.”
{¶22} Thus, our review of the record reveals that
approximately six weeks before the contempt hearing, the court
notified appellant of his right to counsel and the potential
consequences for the failure to have counsel present at the
contempt hearing (i.e., the court could deny a motion to
continue based upon appellant’s failure to obtain counsel in
time for the hearing). Appellant claimed that he attempted to
retain private counsel for the hearing, but appellant did not
explain why he could not have retained alternate counsel or
could not have requested a continuance before than the date of
the contempt hearing. Under these circumstances, we are unable
to conclude that the trial court’s denial of appellant’s motion
to continue the contempt hearing to obtain counsel constitutes
an abuse of discretion.
{¶23} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d
297.
12
HOCKING, 22CA2
{¶24} In his second assignment of error, appellant asserts
that the trial court erred by failing to inquire whether
appellant may have been entitled to appointed counsel.
Appellant points out that he alleged that he did not have the
ability to pay the balance due under the $100,000 consent order
and his claimed inability to pay indicates that the trial court
should have sua sponte considered appellant’s eligibility for
appointed counsel.
{¶25} Initially, we observe that at no time did appellant
request the trial court to appoint counsel to represent him in
the contempt proceeding, even though the summons that appellant
received explicitly informed him that he had a right to
appointed counsel if indigent. Furthermore, appellant did not
state that he had an inability to obtain counsel. In fact,
appellant claimed the opposite. Appellant informed the trial
court that he had contacted a private attorney and that this
attorney had agreed to represent appellant, but was unavailable
on the date of the contempt hearing. State v. Bush, 97 Ohio
App.3d 20, 25, 646 N.E.2d 193 (4th Dist.1994) (concluding that
defendant waived right to counsel when he “unambiguously told
the court that he was able to obtain counsel”).
{¶26} Under the circumstances present in the case sub
judice, we believe that appellant forfeited the right to
13
HOCKING, 22CA2
challenge on appeal the trial court’s failure to inquire into
appellant’s indigency and whether he qualified for appointed
counsel. See In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899,
951 N.E.2d 398, ¶ 18 (applying plain-error review to claim
regarding appointment of independent counsel for child in
dependency proceeding when none of the parties requested trial
court to appoint independent counsel for the child). Appellate
courts may, however, in certain circumstances, consider a
forfeited argument using a plain-error analysis. See Risner v.
Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio
St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court
has discretion to consider forfeited constitutional challenges);
see also Hill v. Urbana, 79 Ohio St.3d 130, 133-34, 679 N.E.2d
1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d
286 (1988), syllabus (stating that “[e]ven where [forfeiture] is
clear, [appellate] court[s] reserve[] the right to consider
constitutional challenges to the application of statutes in
specific cases of plain error or where the rights and interests
involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning
No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th
Dist. Mahoning No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (the plain
error doctrine “‘is a wholly discretionary doctrine’”); DeVan v.
Cuyahoga Cty. Bd. of Revision, 2015-Ohio-4279, 45 N.E.3d 661, ¶
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9 (8th Dist.) (appellate court retains discretion to consider
forfeited argument); see Rosales-Mireles v. United States, ___
U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court
has discretion whether to recognize plain error).
{¶27} For the plain-error doctrine to apply, the party
claiming error must establish (1) that “‘an error, i.e., a
deviation from a legal rule” occurred, (2) that the error was
“‘an “obvious” defect in the trial proceedings,’” and (3) that
this obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the trial.’” State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,
quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436
N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and
prejudicial although neither objected to nor affirmatively
waived which, if permitted, would have a material adverse affect
on the character and public confidence in judicial
proceedings.”). For an error to be “plain” or “obvious,” the
error must be plain “under current law” “at the time of
appellate consideration.” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord
Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin
No. 15AP-536, 2016-Ohio-717, ¶ 14. However, the plain error
15
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doctrine is not readily invoked in civil cases. Instead, an
appellate court “must proceed with the utmost caution” when
applying the plain error doctrine in civil cases. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The
Ohio Supreme Court has set a “very high standard” for invoking
the plain error doctrine in a civil case. Perez v. Falls
Financial, Inc., 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus,
“the doctrine is sharply limited to the extremely rare case
involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying
judicial process itself.” Goldfuss, 79 Ohio St.3d at 122;
accord Jones v. Cleveland Clinic Found., 161 Ohio St.3d 337,
2020-Ohio-3780, 163 N.E.3d 501, ¶ 24; Gable v. Gates Mills, 103
Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.
Moreover, appellate courts “‘should be hesitant to decide
[forfeited errors] for the reason that justice is far better
served when it has the benefit of briefing, arguing, and lower
court consideration before making a final determination.’”
Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d 330,
332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg.
Co., Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th
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Dist.1995) (“Litigants must not be permitted to hold their
arguments in reserve for appeal, thus evading the trial court
process.”). Additionally, “[t]he plain error doctrine should
never be applied to reverse a civil judgment * * * to allow
litigation of issues which could easily have been raised and
determined in the initial trial.” Goldfuss, 79 Ohio St.3d at
122.
{¶28} After our review in the case sub judice, we do not
believe that the trial court plainly erred by failing to sua
sponte investigate whether appellant was indigent and entitled
to appointed counsel. Once again we note that appellant clearly
informed the court that appellant had contacted a private
attorney and that this attorney had agreed to represent
appellant. Appellant did not state that he could not afford to
pay a private attorney. Instead, by stating that he had
contacted a private attorney and that this attorney agreed to
represent him, appellant indicated to the court that he
possessed the financial ability to retain this private attorney.
The court did not have a duty to doubt appellant’s claimed
ability to hire this attorney and to independently inquire
whether appellant qualified for appointed counsel, especially in
light of the fact that appellant did not ask the court to
appoint counsel. Cf. Souders v. Souders, 1st Dist. Hamilton No.
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C-150552, 2016-Ohio-3522, ¶ 18 (trial court did not violate
right to court-appointed counsel in failure-to-pay-child-support
case when father did not follow procedures to obtain public
defender or court-appointed counsel, did not file an indigency
affidavit, and did not submit any other documentation to support
claim that he was indigent).
{¶29} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶30} In his third assignment of error, appellant asserts
that the trial court erred by failing to give him an adequate
opportunity to purge his contempt. In particular, appellant
contends that the trial court’s purge condition – complying with
a three-year payment schedule – is not valid because it attempts
to regulate appellant’s future conduct. Accordingly, within his
third assignment of error appellant asserts that the trial court
did not enter a finding regarding his ability to pay.
{¶31} Trial courts generally have “broad discretion in
contempt proceedings,” including when imposing contempt
sanctions. Schuman v. Cranford, 4th Dist. Vinton No. 02CA571,
2003-Ohio-2117, ¶ 10; accord Weinsziehr v. Weinsziehr, 4th Dist.
Hocking No. 20CA1, 2021-Ohio-1568, ¶ 14; Dimalanta v. Dimalanta,
8th Dist. Cuyahoga No. 108920, 2020-Ohio-6992, ¶ 42. Thus,
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reviewing courts will not reverse a trial court’s decision
regarding contempt sanctions unless the court abused its
discretion. E.g., Schuman at ¶ 10; State ex rel. DeWine v.
Miller, 194 Ohio App.3d 86, 2011-Ohio-2107, 954 N.E.2d 1247, ¶
16 (4th Dist.). As we noted earlier, “‘[a]buse of discretion’
has been defined as an attitude that is unreasonable, arbitrary
or unconscionable.” AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d
83, 87, 482 N.E.2d 1248 (1985). Furthermore, in civil contempt
cases like the case at bar, a trial court “must provide the
contemnor a reasonable opportunity to purge the contempt.”
Cornell v. Shain, 1st Dist. Hamilton No. C-19072, 2021-Ohio-
2094, ¶ 46, citing Burchett v. Miller, 123 Ohio App.3d 550, 552,
704 N.E.2d 636 (6th Dist.1997); Tucker v. Tucker, 10 Ohio App.3d
251, 252, 461 N.E.2d 1337 (10th Dist.1983). “A trial court
abuses its discretion when it orders conditions for purging that
are unreasonable or impossible for the contemnor to meet.”
Schuman at ¶ 10, citing Burchett, supra.
{¶32} “The determination of whether a particular purge
condition is unreasonable or impossible varies on a case-by-case
basis.” Id. at ¶ 11. Moreover, “[t]he contemnor bears the
burden of presenting sufficient evidence at the contempt hearing
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to establish that the trial court’s purge conditions are
unreasonable or impossible for him to satisfy.” Id., citing
Szymczak v. Szymczak, 136 Ohio App.3d 706, 713, 737 N.E.2d 980(8th Dist.2000); accord Liming v. Damos, 133 Ohio St.3d 509,
2012-Ohio-4783, 979 N.E.2d 297, ¶ 20 (stating that “[p]lacing
the burden of showing inability to pay on the party charged with
contempt is not unreasonable”). A contemnor’s
“[u]nsubstantiated claims of financial difficulties do not
establish an impossibility defense to a contempt charge.”
Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564, 2010-Ohio-
3120, ¶ 41; accord Liming at ¶ 23 (trial court did not need “to
expressly find that [the father] had the ability to pay” when
the father “failed to produce evidence of inability to pay”); In
re I.L.J., 8th Dist. Cuyahoga No. 109564, 2020-Ohio-5434, ¶ 14
(“contemnor’s unsupported claims of financial difficulty or an
inability to pay are insufficient to establish that the trial
court’s conditions are unreasonable.”); Pettit v. Pettit, 8th
Dist. Cuyahoga No. 64582, 1993 WL 536060, *4 (Dec. 23, 1993)
(“unsupported statement of ‘I have been broke’ will not
establish an inability to comply with a court order of child
support”).
{¶33} In the case sub judice, appellant first asserts that
the trial court’s contempt order did not give him a reasonable
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opportunity to purge the contempt. Appellant contends that the
court’s purge condition regulates his future conduct and that
purge conditions that regulate future conduct are invalid.
{¶34} We acknowledge that a purge condition may not
“regulate future conduct by conditioning the suspension of a
jail sentence on the contemnor making payments on current
support obligations.” Frey v. Frey, 197 Ohio App.3d 273, 2011-
Ohio-6012, 967 N.E.2d 246, ¶ 35 (3rd Dist.); Tucker v. Tucker,
10 Ohio App.3d 251, 252, 461 N.E.2d 1337 (10th Dist.1983).
Purge conditions that require a contemnor to pay an arrearage
pursuant to a payment schedule or otherwise do not regulate
future conduct, however. Frey at ¶ 35, citing Marden v. Marden,
108 Ohio App.3d 568, 571, 671 N.E.2d 331 (12th Dist.1996);
accord Vaughn v. Vaughn, 12th Dist. Warren No. CA2021-08-078,
2022-Ohio-1805, ¶ 39 (trial court did not abuse its discretion
by requiring husband to “make ‘steady payments’ on his $34,500
child support arrearage”); Cox v. Cox, 10th Dist. Franklin No.
14AP-490, 2015-Ohio-1660, ¶ 34; Stychno v. Stychno, 11th Dist.
Trumbull No. 2008-T-0117, 2009-Ohio-6858, ¶ 54 (order not an
attempt to regulate future conduct but monthly payment “based
solely on arrearages owed”); In re Kenison, 10th Dist. Franklin
No. 96APF07-975, 1997 WL 284676, *2 (order that “provide[s] for
purging by paying the arrearage” gives contemnor “a true
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opportunity for purging”). Conditioning a contempt sanction on
paying an arrearage requires a contemnor to comply with a
preexisting obligation, not a current or future obligation that
has yet to give rise to a contempt proceeding. See Leuvoy v.
Leuvoy, 10th Dist. Franklin No. 00AP-1378, 2001 WL 710123, *2
(June 26, 2001) (noting distinction between purge conditions
that attempt to regulate future obligations and purge conditions
that set a payment schedule for arrearages). Consequently,
courts have held that purge conditions are proper when they
suspend a jail sentence on the condition that a contemnor pay an
arrearage. Vaughn; Leuvoy.
{¶35} For example, in Leuvoy the court determined that a
contempt order that suspended the contemnor’s jail sentence upon
the condition that he pay $1,250 per month to “liquidate” his
child and spousal support arrearages did not attempt to regulate
the contemnor’s future conduct. Id. at *1. The court explained
that “the order permitted appellant to purge by making monthly
payments on the arrearage amount.” Id. at *2. The court
further distinguished the arrearage-payment purge condition from
purge conditions that regulate future conduct. The court noted
that in the future-conduct purge cases, any arrearage (1) “had
been paid”; (2) “did not exist at the time the judgment in
contempt was entered”; and (3) “the order was directed only to
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HOCKING, 22CA2
future conduct.” Id. The Leuvoy court pointed out that, in the
case before it, the contemnor had not paid the arrearage before
the court entered its contempt finding. The court thus
concluded that the contempt order did not attempt to regulate
future conduct.
{¶36} In Tucker, on the other hand, the court held that a
civil contempt order did not provide the contemnor a reasonable
opportunity to purge the contempt when the court suspended
punishment on the condition that the contemnor comply in the
future by paying his child support obligation. The court stated
as follows:
“Had the order provided for suspending the jail
sentence on condition that plaintiff purge himself of
his violation of the support order by paying the
arrearage, it would have provided a true opportunity for
purging. However, insofar as it purports to regulate
future conduct, it simply amounts to the court’s
reaffirmation of its previous support order and can have
no effect since any effort to punish a future violation
of the support order would require new notice, hearing,
and determination.”
Id. at 252.
{¶37} In the case at bar, we do not believe that the trial
court’s purge condition attempts to regulate future conduct as
contemplated in Tucker. Instead, the court’s purge condition,
similar to the purge condition in Leuvoy, sets a payment
schedule for the amount of money that appellant failed to pay
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HOCKING, 22CA2
under the consent order. Thus, this particular purge condition
is a payment schedule to satisfy a preexisting obligation, an
arrearage, not an order to make payments to satisfy a current or
future obligation.
{¶38} Additionally, we reject any argument that the trial
court erred by failing to expressly find that appellant has the
ability to pay the money owed under the consent order. Here,
appellant did not present any evidence regarding his claimed
inability to pay. Therefore, under Liming, the trial court did
not have any duty to find that appellant had the ability to pay.
Liming at ¶ 23 (trial court did not need “to expressly find that
[the father] had the ability to pay” when the father “failed to
produce evidence of inability to pay”).
{¶39} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
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HOCKING, 22CA2
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Hocking County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.