[Cite as Chiro v. Foley, 2014-Ohio-3728.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100962



                                    JOSEPH A. CHIRO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                    MARCIE L. FOLEY

                                                     DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                    Case No. DR-10-330950


        BEFORE: E.T. Gallagher, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: August 28, 2014
ATTORNEY FOR APPELLANT

Douglas P. Whipple
Whipple Law, L.L.C.
13940 Cedar Road, Suite 420
University Heights, Ohio 44118


ATTORNEY FOR APPELLEE

Joyce E. Barrett
Law Offices of Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1}   Plaintiff-appellant, Joseph A. Chiro (“Chiro”), appeals a judgment of

Cuyahoga County Common Pleas Court, Domestic Relations Division, that found him in

contempt of court for failure to pay spousal support to defendant-appellee, Marcie L.

Foley (“Foley”). We find no merit to the appeal and affirm.

       {¶2} Foley and Chiro were divorced on November 19, 2010 by virtue of an agreed

judgment entry of divorce that incorporated the parties’ separation agreement. Prior to

their divorce, Foley had been an employee of Chiro’s company, CHJ Corporation, d.b.a.

Westview Acres Apartments.       In the final divorce decree, the parties agreed to the

following with respect to spousal support:

       Husband and Wife each waive his or her right to any spousal support which
       may be due from the other at the present time. However, the court retains
       jurisdiction for a period of three years to award spousal support to the Wife
       for three (3) years in the event Wife’s employment is terminated not for
       cause in which event Wife will be entitled to monthly spousal support
       commensurate with her current salary of $50,000.00 plus benefits.

On February 9, 2011, Foley filed a motion to establish spousal support, alleging that

Chiro constructively terminated her employment by creating a hostile work environment.

Chiro denied the allegations and asserted that Foley quit her job of her own accord.

       {¶3} The trial court determined that Chiro terminated Foley’s employment without

cause and awarded her supposal support in the amount of $50,000 per year plus the sum

of $464.91 per month, which represented the monthly value of her health insurance

benefits. The court ordered spousal support for a period of two years beginning in April

2011 and ending in April 2013. Chiro appealed the spousal support order, and this court
affirmed the trial court’s judgment. Chiro v. Foley, 8th Dist. Cuyahoga No. 99888,

2013-Ohio-4808.

       {¶4} In May 2013, Foley filed a motion to show cause why Chiro should not be

held in contempt of court for failure to pay spousal support. She alleged Chiro failed to

comply with the spousal support order and that he had an arrearage of $114,370.80.

Foley also filed a motion for attorney fees to recover the cost of litigating her show cause

motion. In June 2013, this court denied Chiro’s motion to stay execution of judgment

pending appeal.

       {¶5} At a hearing on Foley’s motions, the parties stipulated, through counsel, that

the magistrate would base his decision on (1) the payment history report dated April 29,

2013 that demonstrated Chiro had an arrearage of $110,078.53, (2) an attorney fee

affidavit submitted within seven days of the hearing, and (3) Chiro’s denial that he was in

contempt of court for failing to abide by the court’s spousal support order.

       {¶6} On December 9, 2013, Chiro filed a notice of payment of spousal support.

Two days later, on December 11, 2013, the magistrate issued a decision finding Chiro in

contempt of court.    The magistrate found that Chiro presented “no evidence of an

inability to comply timely and in full with the prior order of spousal support.” The

magistrate concluded that “[h]is failure to comply with the order must therefore be

deemed willful.”

       {¶7} In accordance with the parties’ stipulations, Foley filed an affidavit in support

of her claim for attorney fees in the amount of $8,315. In the magistrate’s decision dated
December 11, 2013, the magistrate indicated he had reviewed the hours logged by Foley’s

attorney and determined the attorney’s hourly rate was reasonable because it was

consistent with fees charged by other similarly-qualified lawyers in the community. The

magistrate excluded $700 in fees as unreasonable. Accordingly, the magistrate ordered

Chiro to pay Foley the sum of $7,565 in attorney fees plus the costs of the proceedings.

The trial court overruled Chiro’s timely objections, and Chiro now appeals and raises

three assignments of error.

                                     Motion to Strike

       {¶8} In the first assignment of error, Chiro argues the trial court abused its

discretion when it failed to grant his motion to strike Foley’s motion to show cause. He

contends the trial court violated his right to due process because it ignored the motion.

       {¶9} We review the trial court’s ruling on a motion to strike for an abuse of

discretion. Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 81675, 2003-Ohio-1528, ¶

7. The term “abuse of discretion” means “an unreasonable, arbitrary, or unconscionable

action.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d

159, ¶ 15.   It is “a discretion exercised to an end or purpose not justified by, and clearly

against reason and evidence.” (Citations and quotations omitted.)         State v. Hancock,

108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130.

       {¶10} In support of his argument, Chiro relies on Aglinsky v. Cleveland Builders

Supply Co., 68 Ohio App.3d 810, 589 N.E.2d 1365 (8th Dist.1990), and Mas v. FL

Aerospace Corp., 2d Dist. Champaign No. 94-CA-15, 1995 Ohio App. LEXIS 2985 (July
3, 1995).   In Aglinsky, this court found the trial court had erred by depriving the

plaintiffs of the opportunity to respond to the defendant’s motion for summary judgment.

 The trial court had previously denied the defendant’s first motion for summary

judgment, and the defendant filed a second motion for summary judgment based on new

evidence. The plaintiffs filed a motion to strike the motion for summary judgment and

for sanctions. The trial court subsequently granted the defendant’s second motion for

summary judgment without ruling on the plaintiffs’ motion to strike and without notifying

plaintiffs that it would rule on the motion for summary judgment before plaintiffs had any

opportunity to respond. Id. at 819.

      {¶11} In reversing the summary judgment, this court concluded the trial court had:

      sent out confusing mixed signals to plaintiffs, thereby abusing its discretion
      by failing to rule on plaintiffs’ motion to strike. The trial court should
      have either ruled upon plaintiffs’ motion to strike or notified plaintiffs the
      trial court was reconsidering the granting of defendant’s motion for
      summary judgment.

Id.

      {¶12} Similarly, in Mas, the appellate court reversed a summary judgment where

the plaintiff had also not been given an opportunity to respond. In response to the

defendant’s motion for summary judgment, the plaintiff filed a motion to amend his

complaint, and the summary judgment motion was continued indefinitely until the motion

to amend was decided. Id. at *3.      The defendant objected to the motion to amend, but

the trial court took no action until several years later, when it granted the motion for

summary judgment without notice. Id.
       {¶13} In reversing the trial court’s judgment, the appellate court held that the trial

court abused its discretion by depriving the plaintiff of the opportunity to respond to the

summary judgment motion as required by Civ.R. 56(C).               The court explained that

inherent in Civ.R. 56(C) was the requirement of procedural due process and that therefore

the trial court should have either ruled on the motion to amend or advised the plaintiff that

it was going to consider the motion for summary judgment in order to give him an

opportunity to respond. Id. at *9.

       {¶14} We find Mas and Aglinsky distinguishable from the facts of this case. In

both cases, the court gave the plaintiffs reason to believe they would have an opportunity

to respond to the motions for summary judgment after the court ruled on other pending

motions. Indeed, the ruling on the other motions could impact the arguments plaintiffs

would raise in their response briefs.      By ruling on the summary judgment motions

without keeping the promise that plaintiffs could later file response briefs, the trial courts

deprived the plaintiffs of due process and fundamental fairness.

       {¶15} Chiro argues the trial court deprived him of due process when it granted

Foley’s motion to show cause without ruling on his motion to strike. In the motion to

strike, Chiro argued, as he does here, that the trial court should have stricken Foley’s

motion to show cause because she cited R.C. 2705.31 in the motion, and no such Ohio

Revised Code section exists.     He contends that because Foley failed to cite the correct

code section, he was not properly notified of Foley’s claim against him, and his due

process rights were violated.
       {¶16} Due process requires “‘notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.’”   Ohio Valley Radiology Assoc., Inc. v. Ohio

Valley Hosp. Assn., 28 Ohio St.3d 118, 124-25, 502 N.E.2d 599 (1986), quoting Mullane

v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865

(1950).   Thus, a party must be given reasonable notice that is sufficient to allow that

party to prepare a defense and then must be provided a meaningful opportunity to be

heard before an order requires payment and simultaneously prohibits the exercise of a

legal right. Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84

L.Ed.2d 494 (1985).

       {¶17} The notice of the show cause hearing served on Chiro stated that “the

contempt motion * * * is subject to the provisions of Ohio Revised Code Chapter 2705 et

seq.” R.C. 2705.031 provides a cause of action for failure to pay spousal support.

Obviously, Foley’s reference to R.C. 2705.31 instead of R.C. 2705.031 was a

typographical error because R.C. 2705.031 lies within R.C. Chapter 2705 et seq. Thus,

Chiro received the mandatory notice required by R.C. 2705.031, and the typographical

error in Foley’s motion to show cause was not a “fatal deficiency.”    Furthermore, Chiro

had an opportunity to prepare and be heard in his defense before the court made its final

judgment.   There was therefore no due process violation.

       {¶18} The first assignment of error is overruled.

                                    Notice of Payment
       {¶19} In the second assignment of error, Chiro argues the trial court abused its

discretion when it granted Foley’s motion to show cause because he filed a notice of

payment of spousal support two days before the court rendered its decision.              He

contends that because he paid the arrearage two days prior to the magistrate’s decision, he

should not have been found in contempt of court.




       {¶20} Contempt is defined as a disregard of, or disobedience to, a court order.

Hissa v. Hissa, 8th Dist. Cuyahoga Nos. 99498 and 100229, 2014-Ohio-1508, ¶ 19. A

person found to be in contempt of court is subject to punishment. See R.C. 2705.05.

Contempt is classified as civil or criminal depending upon the character and purpose of

the punishment. In re M.H., 8th Dist. Cuyahoga No. 97618, 2012-Ohio-3371, ¶ 10,

citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980).

Whereas criminal contempt is solely punitive, civil contempt contemplates punishment

that is remedial or coercive and for the benefit of the complainant. Id. at 253.

       {¶21} Although a prison sentence may be imposed for civil contempt, the

contemnor must be afforded the opportunity to purge the contempt. Id.              “Once the

contemnor purges his contempt, any sanctions will be discontinued because compliance

has been achieved.” Id., quoting U.S. Bank Natl. Assn. v. Golf Course Mgt., Inc., 12th

Dist. Clermont No. CA2008-08-078, 2009-Ohio-2807, ¶ 16. Thus, the contemnor is said

to “carry the keys to his prison in his own pocket.”   Brown at 253.
       {¶22} Chiro relies on Burke v. Burke, 7th Dist. Mahoning No. 11 MA 166,

2012-Ohio-6279 (“Burke I”), in support of his argument. In Burke I, the trial court found

the husband in contempt of court for failure to pay spousal support and sentenced him to

ten days in jail. The contempt order further provided that the husband could purge the

contempt by paying monthly support payments beginning on a certain date in the future.

Id. at ¶ 7. On appeal, the court voided the purge condition because it regulated future

conduct rather than punishing a violation of the trial court’s order, and remanded the case

to the trial court to impose a new purge condition. Id. at ¶ 44.

       {¶23} Chiro argues that under Burke I, the trial court’s contempt order in this case

is void because the order provides a condition allowing him to purge the contempt by

paying the $110,078.53 spousal support arrearage by a certain date in the future even

though he had already paid the spousal support arrearage. However, the court in Burke I

voided the purge condition in the trial court’s contempt order because it reaffirmed the

original support order and was an attempt to regulate the contemnor’s future conduct

rather than punish him for past conduct. Id. at ¶ 42. Accord Burke v. Burke, 7th Dist.

Mahoning No. 13 MA 24, 2014-Ohio-1402 (“Burke II”). The husband in Burke I had

not paid outstanding child support arrearages at the time of the trial court’s order.

       {¶24} In Burke II, the appellate court voided the trial court’s new purge condition

because, among other things, it again attempted to regulate future conduct by ordering

payment of future monthly spousal support payments. Burke II at ¶ 1.               The court

explained that because contempt proceedings are based on the contemnor’s violation of a
previous court order, a purge condition that punishes future conduct is invalid. Id. at ¶ 8.

 Furthermore, “for a purge condition to be valid, it must provide a ‘clear opportunity to

purge the contempt’ rather than regulate future conduct.” Id. at ¶ 10, citing Frey v. Frey,

197 Ohio App.3d 273, 2011-Ohio-6012, 967 N.E.2d 246, ¶ 37 (3d Dist.).

       {¶25} Burke I and Burke II are distinguishable from the instant case. Unlike the

husband in Burke I and Burke II, who had not paid his spousal support arrearage, Chiro

paid his entire spousal support obligation in full. While the husband in Burke I and

Burke II was obligated to pay spousal support indefinitely, Chiro’s support obligation was

limited to a two-year period. More importantly, the contempt order in this case did not

provide a continuing order to regulate Chiro’s future conduct; it provided a clear

opportunity to purge the contempt. The contempt order states, in relevant part:

       The Support Obligor is hereby sentenced for said contempt to thirty (30)
       days in jail, or in the alternative, to perform not less than 200 hours of
       community service in lieu of actual incarceration. * * * However, the
       Support Obligor’s sentence will be purged provided that the Support
       Obligor pays $110,078.53 * * * within 30 days of the journalization of this
       order.

Two days before the magistrate issued this decision, Chiro paid the entire amount of his

spousal support obligation.    Compliance had been achieved, and Chiro had already

purged the contempt.          Therefore, the contempt sanctions were automatically

discontinued.

       {¶26} Nevertheless, the child support order did not preclude the trial court from

finding Chiro in contempt of court. As previously mentioned, there was no evidence that

Chiro was unable to comply in full with the spousal support order in a timely manner.
Indeed, the parties’ prenuptial agreement indicated Chiro owned assets worth millions of

dollars. Under these circumstances, the magistrate reasonably concluded that Chiro’s

failure to comply with the order must have been willful.

      {¶27} Foley filed her motion to show cause on May 29, 2013. Chiro’s spousal

support obligation terminated on April 29, 2013. Yet the evidence showed that Chiro

had not made any payments at the time of the show cause hearing on November 15, 2013.

Therefore, the magistrate correctly determined that Chiro was in violation of the court’s

spousal support order because he was “in arrears for spousal support through April 19,

2013, in the amount of $110,078.53.” Chiro’s contempt violation continued until he paid

the support obligation in full on December 9, 2013.

      {¶28} Finally, Chiro argues he should not be held in contempt because he delayed

payment of the spousal support judgment until this court ruled on his motion to stay

execution of judgment pending appeal. However, this court denied Chiro’s motion to

stay on June 19, 2013. Yet the judgment remained unpaid until December 9, 2013, six

months after the motion to stay was denied and more than three weeks after the contempt

hearing. Therefore, Chiro violated a court order by not paying spousal support, and he

was in contempt of court at the time of the contempt hearing on November 15, 2013.

      {¶29} Accordingly, the second assignment of error is overruled.

                                     Attorney Fees

      {¶30} In the third assignment of error, Chiro argues the amount of the attorney fee

award is not sustained by the manifest weight of the evidence. He contends the attorney
fee award is defective because the magistrate failed to identify which time entries he

decided were attributable to the show cause proceedings.

       {¶31} Pursuant to R.C. 3105.73(A), a domestic relations court “may award all or

part of reasonable attorney’s fees * * * to either party if the court finds the award

equitable.” In determining whether an award of fees is equitable, the court may consider

several factors including “the conduct of the parties.” R.C. 3105.73(A); Walpole v.

Walpole, 8th Dist. Cuyahoga No. 99231, 2013-Ohio-3529, ¶ 33. “An award of attorney

fees under R.C. 3105.73 lies within the sound discretion of the trial court and will not be

reversed absent an abuse of that discretion.” Rand v. Rand, 18 Ohio St.3d 356, 359, 481

N.E.2d 609 (1985).

       {¶32} Foley’s affidavit in support of her claim for attorney fees sought an award of

$8,315. The affidavit contained a detailed itemization of the attorney time and costs

incurred. The magistrate indicated in his decision that he reviewed the hours logged by

the attorney and determined that $7,565 were reasonable.          The magistrate further

determined that $700 of the attorney fee bill were not reasonable and excluded them from

the award. Chiro has not referred us to, nor have we found, any legal authority requiring

a magistrate to delineate which fees he considered reasonable or unreasonable. The

magistrate carefully reviewed the itemized time entries and found some entries were

unreasonable when he determined the award. Under the circumstances of this case, we

find no abuse of discretion.

       {¶33} The third assignment of error is overruled.
      {¶34} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the domestic relations court to carry

this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
