[Cite as Haas v. Myers, 2016-Ohio-3316.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 ALEXANDER HAAS                                :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                    :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
 -vs-                                          :
                                               :   Case No. 2015CA00217
                                               :
 LINDSEY MYERS                                 :
                                               :
                                               :
        Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 2010JCV00817



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            June 6, 2016




APPEARANCES:

 For Plaintiff-Appellant:                          For Defendant-Appellee:
                                                   KIMBERLY R. HOPWOOD
 ROBERT G. ABNEY                                   STARK CO. J.F.S.
 116 Cleveland Ave. NW                             122 Cleveland Ave. NW
 Suite 500                                         Canton, OH 44702
 Canton, OH 44702                                  RAYMOND BULES
                                                   101 Central Plaza South
                                                   300 Chase Tower
                                                   Canton, OH 44702
Stark County, Case No. 2015CA00217                                                     2

Delaney, J.

       {¶1} Plaintiff-appellant Alexander Haas appeals from the November 25, 2015

Judgment Entry of the Stark County Court of Common Pleas, Family Court Division.

Defendant-appellee is Lindsey Myers.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and appellee have never been married and have two children

together.

       {¶3} In July 2010, appellant was ordered to pay child support of $869.37 per

month plus cash medical of $139.17 per month. These amounts were determined based

upon appellant’s statements on a loan application and appellee’s receipt of public

assistance.

       {¶4} An arrearage was immediately created because the child support order was

backdated to the date of filing.

       {¶5} On June 1, 2012, Stark CSEA administratively recommended reduction of

the order of support to $342.00 monthly with cash medical of $0.

       {¶6} Appellee requested an administrative hearing. The administrative officer

used the income stated on the loan application, added appellee’s income, and applied

the Ohio Support Guidelines, establishing the child support order at $776.85 per month

plus cash medical at $162.25 per month.

       {¶7} Appellant objected to the administrative decision and requested an

arrearage calculation. The latter motion was subsequently withdrawn. By Judgment

Entry dated February 13, 2013, the trial court refused to allow appellant to proceed with
Stark County, Case No. 2015CA00217                                                          3


his objections due to his willful failure to comply with discovery orders requiring disclosure

of his income.

       {¶8} On July 19, 2013, appellant filed a motion for equitable reduction in child

support arrearage amount.

       {¶9} On August 7, 2013, appellant was found guilty of contempt and sentenced

to a jail term of 30 days. The trial court found appellant offered only self-serving opinions

as to his income; admitted he signed a loan application declaring income of $4500/month;

offered no evidence that the amounts used by CSEA were incorrect; and provided no

justification for deviation from child support guidelines. To purge the contempt, appellant

was ordered to make regular payments consistent with Stark CSEA regulations. The

arrearage was determined to be $23,280.60.

       {¶10} On June 16, 2014, Stark CSEA filed a motion to show cause.

       {¶11} On October 15, 2014, a magistrate found appellant in contempt, noting

appellant was not paying his full child support obligation and was instead paying $350 –

375 per month, “what he feels is appropriate.” The magistrate imposed a jail term of 30

days; to purge this finding, appellant was ordered to make full court-ordered child support

payments for a period of one full year. The arrears now totaled $26,098.90.

       {¶12} Appellant objected to the magistrate’s decision and appellee responded

with a brief in opposition.

       {¶13} On February 2, 2015, appellant filed a motion to modify child support. This

motion was later dismissed by the trial court because appellee was not served.

       {¶14} On March 24, 2015, the trial court found appellant paid the full amount of

two months’ support. The jail term was suspended with the finding appellant could purge
Stark County, Case No. 2015CA00217                                                       4


the contempt by paying 12 months’ current child support, cash medical, and $100.00 per

month on the arrearage.

       {¶15} On August 24, 2015, Stark County CSEA filed a motion to impose the

suspended jail term arguing appellant paid as ordered for six months then again reduced

his payment to one-half the order of support.

       {¶16} On November 20, 2015, appellant filed, e.g., a motion to modify child

support and a motion to rule upon his prior motion for equitable reduction in child support

arrearage.

       {¶17} On November 25, 2015, the trial court found appellant failed to make

payments as ordered in the entry of March 24, 2015. Appellant was ordered to serve four

days of the 30-day jail term and the balance was suspended.

       {¶18} Appellant now appeals from the trial court’s Judgment Entry dated

November 25, 2015.

       {¶19} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶20} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT FAILED TO

PURGE HIS CONTEMPT.”

       {¶21} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO FOUR

DAYS IN JAIL.”
Stark County, Case No. 2015CA00217                                                         5


                                        ANALYSIS

                                             I.

       {¶22} In his first assignment of error, appellant argues the trial court erred in

finding he failed to purge his contempt because the purge condition was invalid. We

disagree.

       {¶23} An appellate court's standard of review of a trial court's contempt finding is

abuse of discretion. Anderson v. Cameron, 5th Dist. Stark No. 2008CA00042, 2009-Ohio-

601, ¶ 12, citing 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 unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶24} In Campbell v. Pryor, 5th Dist. Stark No. 2010CA00231, 2011-Ohio-1222,

at ¶ 26, we observed,

                     A trial court may employ sanctions to coerce a party who is in

              contempt into complying with a court order. Peach v. Peach, 8th Dist.

              Cuyahoga Nos. 82414 and 82500, 2003–Ohio–5645, ¶ 37. Any

              sanction for civil contempt must allow the party who is in contempt

              an opportunity to purge the contempt. Carroll v. Detty, 113 Ohio

              App.3d 708, 712, 681 N.E.2d 1383 (4th Dist.1996). A trial court

              abuses its discretion by ordering purge conditions which are

              unreasonable or where compliance is impossible. Burchett v. Miller,

              123 Ohio App.3d 550, 552, 704 N.E.2d 636 (1997). If a party makes

              a good faith effort to pay support, contempt is not justified. Courtney
Stark County, Case No. 2015CA00217                                                       6

             v. Courtney, 16 Ohio App.3d 329, 344, 475 N.E.2d 1284 (3rd

             Dist.1984). The burden to show an inability to pay is on the party

             being held in contempt. Danforth v. Danforth, 8th Dist. Cuyahoga No.

             78010, 2009-Ohio-1341 (Apr. 15, 2001).” Farrell v. Farrell, Licking

             App. No.2008–CA–0080, 2009–Ohio–1341, ¶ 15, citing Baker v.

             Mague, Cuyahoga App. No. 82792, 2004–Ohio–1259, ¶ 14.

       {¶25} The trial court abuses its discretion in ordering purge conditions which are

unreasonable or where compliance is impossible. Protz v. Protz, 5th Dist. Stark No.

2009CA00270, 2010-Ohio-2502, ¶ 19, citing In re Purola, 73 Ohio App.3d 306, 313, 596

N.E.2d 1140 (3rd Dist.1991).

       {¶26} Appellant argues the purge condition imposed by the magistrate on October

15, 2014 was invalid. Appellant was ordered to make full court-ordered child support

payments for a period of one full year. Appellant argues this condition was invalid

because purge conditions that require contemnors to pay their already-ordered

obligations are invalid and do not provide a meaningful opportunity to purge a finding of

contempt.

       {¶27} In Kungle v. Kungle, we found that a trial court’s decision to “hold over” a

contempt finding from 2001 to the final imposition of sentence in 2006 was improper

because it effectively “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.” 5th Dist. Stark No. 2006CA00367,

2007-Ohio-4929, ¶ 20, citing Tucker v. Tucker, 10 Ohio App.3d 251, 461 N.E.2d 1337

(10th Dist.1983) [failure to perform future acts cannot be found to constitute a failure to
Stark County, Case No. 2015CA00217                                                        7


purge a contempt finding based upon past acts]. Appellant argues the purge condition

imposed by the magistrate is invalid pursuant to Kungle.

       {¶28} Appellee acknowledges the original purge order by the magistrate was

invalid because it was merely a reaffirmation of its previous support order. State ex rel.

Brett v. Brett, 5th Dist. Knox No. 01CA000018, 2002-Ohio-1841, 2002 WL 561934, *3.

However, the trial court remedied the improper condition with the additional requirement

of paying $100 per month toward the arrears. In Sidwell v. Sidwell, the Tenth District

distinguished the facts of a similar case from Tucker, supra, “because the trial court's

purge condition in the case before us, in addition to providing for continued payment of

his ongoing child support obligation, required appellant to purge his past failure to make

child support payments by liquidating the accumulated arrearage at the rate of $100 per

month.” Sidwell v. Sidwell, 10th Dist. Franklin No. 96APF06-828, 1997 WL 101680, *2

(Mar. 4, 1997).

       {¶29} In the instant case, appellant objected to the magistrate’s decision of

October 15, resulting in the hearing that was held before Judge Campbell on March 20,

2015 and the order of March 24, 2015. At the hearing, CSEA noted appellant sold a

motorcycle to pay the current order of support for two months, therefore it was not

requesting imposition of jail time. Appellant expressed concern that he would not be able

to keep up with the payments as ordered but had filed a new motion for modification that

might reduce the amount to one he was able to pay. In the resulting judgment entry of

March 24, 2015, the trial court suspended the jail term on the condition that appellant “pay

[ ] 12 months current child support, cash medical an[d] 100 dollars on th[e] arrearages.”
Stark County, Case No. 2015CA00217                                                       8


       {¶30} As noted supra, appellant’s pending motion to modify support was

dismissed because it wasn’t properly served.

       {¶31} When the trial court imposed the 4-day jail term on November 25, 2015, it

was because appellant failed to meet the purge conditions of the March 24 judgment

entry. We disagree with appellant’s argument here that he was faced with “multiple purge

conditions.” Upon our review of the transcript of the March 20, 2015 hearing and the

resulting order, it is evident appellant was subject to one purge condition as noted in the

order: “pay[ ] 12 months current child support, cash medical an[d] 100 dollars on th[e]

arrearages.” While the entry out of context appears ambiguous with regard to the “100

dollars on the arrearages,” we note the following exchange on the record at the March 20

hearing:

                     * * * *.

                     THE COURT: * * * *. You understand? Do you have any

              questions? Do you want to talk to your attorney for a minute before

              we finish?

                     [APPELLANT]:      That, can I ask, just ask for a point of

              clarification from the opposing counsel?

                     THE COURT:       You can ask the question, whether she’ll

              answer, I don’t know.

                     [APPELLANT]: Ah…so, is it if I’m able to pay the support

              payment, plus the cash medical, plus the standard amount on the

              arrearages, which is a hundred dollars more a month, then for

              twelve months starting in uh…May?
Stark County, Case No. 2015CA00217                                                    9


                  [CSEA COUNSEL]: (Agreeing).

                  [APPELLANT]: Then if that amount is paid for twelve months,

           then I never risk going to jail for this?

                  [CSEA COUNSEL]: No. My finding, the, the first part of your

           question is and I did the math. If you pay * * * one thousand, ninety-

           nine, fifty-six for twelve months, my finding of contempt poofs away.

                  [APPELLANT]: Could you re-file for contempt?

                  [CSEA COUNSEL]: Yes, I could.

                  [APPELLANT]: Okay.

                  [CSEA COUNSEL]: But it would poof away. But if you pay

           eight, sixteen or eight-seventeen as you’re doing, I’m not going to file

           another motion to impose because I know what you’re doing. You’re

           paying the current order of support. I am going to utilize my other

           remedies [including taking any large lump sums and applying them

           toward the arrears.]

                  * * * *.

                  THE COURT:            Alright.       The Court will adopt the

           recommendation of the [CSEA]. We’ll find you can purge the

           contempt by virtue of paying the eight-sixteen, one hundred

           dollars and the hundred and sixty-two, twenty five [plus

           poundage].

                  * * * *.
Stark County, Case No. 2015CA00217                                                           10


                      [APPELLANT]: * * *. [If] the amount is lowered, do I need to

              pay the lower amount or continue to pay the eight, sixteen?

                      * * * *.

                      THE COURT:          * * * *.   If that number goes down in the

              calculation, your obligation, other than the one hundred dollars

              would be adjusted accordingly.

                      [APPELLANT]: Okay.

                      THE COURT: Okay? The hundred dollars on the arrears is

              just there. And as long as you make that they’re not going to chase

              you around.

                      * * * *.

                      T. (March 20, 2015), 12-15 (emphasis added).

       {¶32} We thus find the trial court issued a valid purge condition.             Appellee

established a valid child support order existed, appellant had knowledge of the order, and

failed to pay. Appellant’s failure to establish inability to pay is discussed infra. Appellant’s

first assignment of error is overruled.

                                                     II.

       {¶33} In his second assignment of error, appellant argues the imposition of four

days of the 30-day jail term is an abuse of the trial court’s discretion. We disagree.

       {¶34} Contempt has been defined as the disregard for judicial authority. State v.

Flinn, 7 Ohio App.3d 294, 455 N.E.2d 691 (1982). “It is conduct which brings the

administration of justice into disrespect, or which tends to embarrass, impede or obstruct

a court in the performance of its functions.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d
Stark County, Case No. 2015CA00217                                                       11


55, 271 N.E.2d 815 (1971), paragraph one of the syllabus. Again, our standard of review

regarding a finding of contempt is limited to a determination of whether the trial court

abused its discretion. In re Mittas, Stark App.No.1994CA00053 (Aug. 6, 1994). In order

to find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶35} When a party is charged with contempt for violating a court order, the

person may defend by proving that it was not in his or her power to obey the law. Courtney

v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3rd Dist.1984). Appellant argues his

inability to pay is due to the fact that he does not earn enough to pay the entire child

support order. Appellant has repeatedly failed to support this argument with evidence

beyond his self-serving assertions that he cannot afford to pay the full amount.

       {¶36} In Osborne v. Osborne, 5th Dist. Fairfield No. 2009-CA-35, 2009-Ohio-

6440, at ¶ 11, we observed:

                    In Seasons Coal Company v. City of Cleveland, [10 Ohio

             St.3d 77, 461 N.E.2d 1273 (1984)], the Ohio Supreme Court quoted

             5 Ohio Jurisprudence 3d (1978) 191-192, Appellate Review, Section

             603, which states: “If the evidence is susceptible of more than one

             construction, the reviewing court is bound to give it that interpretation

             which is consistent with the verdict and judgment, most favorable to

             sustaining the verdict and judgment.” The Seasons court went on to

             explain “The underlying rationale of giving deference to the findings

             of the trial court rests with the knowledge that the trial judge is best
Stark County, Case No. 2015CA00217                                                       12


               able to view the witnesses and observe their demeanor, gestures

               and voice inflections, and use these observations in weighing the

               credibility of the proffered testimony.” Seasons, supra, at 80.

         {¶37} A defendant cannot shield himself from a finding of contempt by making

mere allegations he is unable to pay, without any supporting evidentiary material. Walters

v. Murphy, 5th Dist. Ashland No. 2006-COA-030, 2007-Ohio-3426, ¶ 9, citing Spring v.

Spring, 5th Dist. Tuscarawas No. 95AP080058 (April 17, 1996). At a minimum, a

defendant should present evidence he had made a good-faith effort to comply with the

court's order. Id., citing Stocker v. Couts, Tuscarawas App. No. 94AP070046 (March 13,

1995).

         {¶38} The record in this matter reveals that appellant's chief response to the

contempt proceedings is that he is unable to pay the full amount ordered and therefore

pays what he feels to be appropriate: half of the ordered amount. Appellant has repeatedly

argued his self-reported income on a mortgage application should not have been used to

establish the child support order. However, we note this is appellant’s only appeal from

any order of the trial court. The trial court found on August 7, 2013 that appellant offered

only self-serving opinions about his income, offered no evidence to establish that the

figures used by CSEA were incorrect, and offered no justification for deviating from the

guidelines. Appellant did not appeal from the entry of August 7, 2013. These continued

arguments about his income are unavailing here.

         {¶39} The testimony of the CSEA records custodian indicates that appellant was

first ordered to provide child support for his children effective July 26, 2010. In the time

since orders were established, we can find proof in this record of only four months
Stark County, Case No. 2015CA00217                                                         13


appellant paid his full child support obligation, and he did not pay cash medical during

that time. He has repeatedly made only partial payments. It is uncontroverted that

appellant built up an arrearage of more than $32,496.96 through November 20, 2015.

       {¶40} Upon review of the record in this case, we are unable to conclude the trial

court's contempt finding against appellant and imposition of jail time constituted an abuse

of discretion, and we decline to alter the determinations reached by the magistrate and

trial judge. See, Hagan v. Hagan, 5th Dist. Stark No. 2009 CA 00148, 2010-Ohio-540.

The trial court’s decision to impose four days of the jail term is not an abuse of discretion.

       {¶41} Appellant’s second assignment of error is overruled.

                                      CONCLUSION

       {¶42} Appellant’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas, Family Court Division is affirmed.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.
