[Cite as Haren v. Haren, 2012-Ohio-2161.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



NANCY JO HAREN                                  JUDGES:
                                                Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellant/Cross-Appellee      Hon. John W. Wise, J.
                                                Hon. Julie A. Edwards, J.
-vs-
                                                Case No. 2011 CA 00221
GARY C. HAREN

        Def.-Appellee/Cross-Appellant           OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Domestic Relations Division, Case
                                             No. 2007 DR 01298


JUDGMENT:                                    Affirmed in Part; Reversed in Part and
                                             Remanded


DATE OF JUDGMENT ENTRY:                       May 14, 2012



APPEARANCES:

For Plaintiff-Appellant/Cross-Appellee       For Defendant-Appellee/Cross-Appellant

DAVID S. AKE                                 ROSEMARY G. RUBIN
101 Central Plaza South                      THE VICTORIAN PROFESSIONAL BLDG.
Suite 600                                    1435 Market Avenue North
Canton, Ohio 44702                           Canton, Ohio 44714
Stark County, Case No. 2011 CA 00221                                                        2

Wise, J.

       {¶1}   Appellant/Cross-Appellee Nancy Haren appeals the decision of the Stark

County Court of Common Pleas, Domestic Relations Division, which found her in

contempt of court following her divorce from Appellee/Cross-Appellant Gary Haren. The

relevant facts leading to this appeal are as follows.

       {¶2}   Appellant/Cross-Appellee Nancy Haren and Appellee/Cross-Appellant

Gary Haren were married on September 25, 1981.1 Two children were born as issue of

that marriage: J.H., born in 1990, and K.H., born in 1991.

       {¶3}   On October 23, 2007, Nancy filed a complaint for divorce. Gary filed an

answer and counterclaim on November 1, 2007.

       {¶4}   The matter proceeded to a divorce trial on June 2, 2008. At the time of the

trial, the parties' older child had become emancipated. The chief issues disputed by the

parties were spousal support, the allocation of the marital residence, and the disposition

of the household goods and furniture. Testimony was adduced at trial that Nancy was

an X-ray technologist and had earned $49,086.72 in 2007, while Gary had received

$14,508.00 in Social Security disability benefits in 2007. Testimony was also presented

at trial that Nancy had a pension valued at $47,000.00, while Gary’s pension was

valued at $12,049.00.

       {¶5}   A judgment entry/decree of divorce was initially filed on September 18,

2008. The trial court ordered no spousal support to either party. The court further




1
   In order to avoid confusion as to the identity of the parties, particularly in light of the
existence of two prior appeals involving this case, we will hereinafter refer to the parties
by their respective first names.
Stark County, Case No. 2011 CA 00221                                                   3


awarded the marital residence to Nancy, and additionally ordered that the parties'

marital assets and liabilities would be divided as per a particular trial exhibit.

       {¶6}   Gary thereupon filed a direct appeal from the divorce decree to this Court,

raising issues regarding the division of marital property, allocation of marital debts

(including attorney fees), and the lack of spousal support. On October 19, 2009, we

reversed the trial court’s decision on several bases and remanded the case. See Haren

v. Haren, 184 Ohio App.3d 722, 2009-Ohio-5652 (“Haren I”).

       {¶7}   After the remand, the trial court on June 7, 2010 again issued a judgment

entry/decree of divorce. Among other things, the trial court awarded Gary spousal

support in the amount of $400.00 per month for 100 months, subject to the death of

either party or Gary’s remarriage. Nancy was awarded the marital residence. The trial

court also ordered Nancy to pay an equalization payment of $43,738.50. The court also

ruled that if Nancy was unable to obtain the funds, she would be required to put the

marital residence on the market for sale.2 Following the issuance of the new decree,

Nancy appealed, while Gary filed a notice of cross-appeal. On February 22, 2011, we

affirmed the decision of the trial court, with a separate concurrence by Judge Hoffman.

See Haren v. Haren, Stark App.No. 2010CA00162, 2011-Ohio-891 (“Haren II”).

       {¶8}   On April 11, 2011, Gary filed a contempt motion against Nancy, alleging

that she had not complied with the orders for division of marital property and had

delayed paying spousal support. The matter proceeded to an evidentiary hearing before

a magistrate on August 10, 2011. The magistrate found Nancy to be guilty of contempt



2
   The parties entered into a subsequent agreement in September 2010 that Nancy
could also seek refinancing of the marital residence as a means of obtaining the
equalization payment funds.
Stark County, Case No. 2011 CA 00221                                                     4


for her failure to pay the spousal support in a timely fashion. The magistrate did not find

Nancy in contempt regarding the payment of the $43,738.50. However, she made

orders requiring Nancy to complete her mortgage loan application prior to November 15,

2011 and to pay Gary the equalization sum no later than December 31, 2011. The

magistrate also ordered a date certain for Gary to pick up his personal property and

attached a list indicating what property he would be entitled to. The magistrate also

ordered Nancy to pay a lump sum purge amount of $5,600.00 on or before December

31, 2011 on the spousal support arrearages. The magistrate did not, however, award

attorney fees to Gary for the finding of contempt. She also declined to award interest on

the $43,738.50.

      {¶9}   Each side thereafter filed objections to the magistrate’s decision. The trial

court reviewed the objections and conducted a hearing on October 3, 2011. On October

4, 2011, the trial court issued a decision overruling all objections and adopting the

decision of the magistrate.

      {¶10} On October 6, 2011, Appellant Nancy filed a notice of appeal. She herein

raises the following sole Assignment of Error:

      {¶11} “I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT [NANCY]

IN CONTEMPT FOR FAILING TO GIVE THE APPELLEE [GARY] HOUSEHOLD

GOODS NOT LOCATED IN THE STORAGE WORK SHED.”

       {¶12} On October 17, 2011, Appellee Gary filed a notice of cross-appeal. He

now raises the following two Assignments of Error as cross-appellant:
Stark County, Case No. 2011 CA 00221                                                     5


       {¶13} “I.    THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO

ORDER THE PLAINTIFF [NANCY] TO PAY INTEREST ON THE AMOUNT OWED TO

THE DEFENDANT [GARY].

       {¶14} “II.   THE MAGISTRATE ABUSED HER DISCRETION IN FAILING TO

AWARD ATTORNEY FEES TO THE DEFENDANT [GARY] UPON A FINDING OF

CONTEMPT.”

                                      Direct Appeal

                                            I.

       {¶15} In her sole Assignment of Error, Appellant Nancy contends the trial court

erred in finding her in contempt regarding transfer of household goods.

       {¶16} We note the trial court’s contempt finding against Nancy pertains solely to

the issue of spousal support. See Magistrate’s Decision at para. 9. The basis of Nancy’s

assigned error thus appears to be meritless. Nancy’s brief proposes that Exhibit 17,

upon which the trial court had relied in calculating property division in the final decree,

was altered from its original form. However, this was not mentioned in this Court’s

opinion in Haren II, which affirmed the marital property division, and we hold that any

concerns about the exhibit are now untimely for purposes of appellate review.

       {¶17} Appellant Nancy's sole Assignment of Error is overruled.

                                      Cross Appeal

                                            I.

       {¶18} In his First Assignment of Error on cross-appeal, Gary contends the trial

court abused its discretion in declining to award him interest on the unpaid property

division monies. We disagree.
Stark County, Case No. 2011 CA 00221                                                    6


       {¶19} A trial court has discretion whether or not to award interest on those

monetary obligations which arise out of property divisions upon divorce. See Koegel v.

Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206, syllabus. We review such a decision

regarding interest on an abuse of discretion standard. See, e.g., Cronin v. Cronin,

Greene App. Nos. 02-CA-110, 03-CA-75, 2005-Ohio-301, ¶ 26.

       {¶20} In the case sub judice, Nancy’s requirement to pay the equalization sum of

approximately $43,738.50 was partially conditioned on her selling the marital residence

or taking out a new mortgage if she was unable to come up with the funds otherwise.

Under these circumstances, in light of the troubled real estate market of the past several

years, and further recognizing the protracted nature of this divorce brought about by

both parties, we are unable to find the existence of an abuse of discretion as to the lack

of interest on the property division orders.

       {¶21} Gary's First Assignment of Error on cross-appeal is overruled.

                                               II.

       {¶22} In his Second Assignment of Error on cross-appeal, Gary contends the

trial court erred in declining to award him attorney fees for the contempt regarding

spousal support payable to him. We agree.

       {¶23} Generally, an award of attorney fees lies within the sound discretion of the

trial court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d 609. However,

R.C. 3105.18(G) specifically provides as follows:

       {¶24} “If any person * * * required to pay spousal support under an order made

or modified by a court on or after January 1, 1991, is found in contempt of court for

failure to make alimony or spousal support payments under the order, the court that
Stark County, Case No. 2011 CA 00221                                                  7


makes the finding, in addition to any other penalty or remedy imposed, shall assess all

court costs arising out of the contempt proceeding against the person and shall require

the person to pay any reasonable attorney's fees of any adverse party, as determined

by the court, that arose in relation to the act of contempt.”

       {¶25} Based on the aforesaid statutory mandate, Gary’s Second Assignment of

Error on cross-appeal is sustained.

       {¶26} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Stark County, Ohio, is hereby affirmed

in part, reversed in part, and remanded for a hearing to assess attorney fees pertaining

to the trial court proceedings for contempt as to spousal support.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                                 JUDGES
JWW/d 0411
Stark County, Case No. 2011 CA 00221                                            8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




NANCY JO HAREN                          :
                                        :
     Plaintiff-Appellant/Cross-Appellee :
                                        :
-vs-                                    :              JUDGMENT ENTRY
                                        :
GARY C. HAREN                           :
                                        :
     Defendant-Appellee/Cross-Appellant :              Case No. 2011 CA 00221




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Stark County,

Ohio, is affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

       Costs are to be split equally between the parties.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                              JUDGES
