[Cite as Burkett v. Hickman, 2016-Ohio-2701.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



PATRICIA BURKETT                                :   JUDGES:
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                     :   Hon. William B. Hoffman, J.
                                                :   Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
MICHAEL HICKMAN                                 :   Case No. 15-CA-87
                                                :
        Defendant-Appellee                      :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 09-DR-1745-RPW



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 25, 2016




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

DAVID L. MARTIN                                     PAUL GIORGIANNI
57 East Main Street                                 1538 Arlington Avenue
Newark, OH 43055                                    Columbus, OH 43212
Licking County, Case No. 15-CA-87                                                          2

Farmer, P.J.

       {¶1}    On May 23, 2011, appellant, Patricia Burkett, and appellee, Michael

Hickman, were divorced via an agreed judgment entry decree of divorce. The agreed

judgment entry provided for appellant to obtain a loan modification on the parties' real

property and then sell the property.

       {¶2}    On June 16, 2011, appellee filed a motion for contempt against appellant,

claiming she failed to pursue a loan modification and list and sell the real property per the

divorce decree. On August 25, 2011, the parties entered into a settlement agreement

wherein appellant was to continue to pursue the loan modification and pay appellee

$2,000 in attorney fees. The trial court approved the agreement via agreed judgment

entry filed September 19, 2011.

       {¶3}    On November 1, 2011, appellee filed a second motion for contempt against

appellant, claiming she failed to list and sell the real property. On December 15, 2011,

the parties entered into a settlement agreement wherein appellant was found in contempt

and sentenced to ten days in jail, suspended in lieu of purging the contempt by

immediately making a reasonable effort to list and sell the real property and pay appellee

$1,500 in attorney fees. The trial court approved the agreement via agreed judgment

entry filed January 9, 2012.

       {¶4}    On February 10, 2012, appellee filed a third motion for contempt against

appellant, claiming she failed to purge the previous contempt finding.           By agreed

judgment entry filed April 17, 2012, appellant was ordered to pursue the loan modification,

list and sell the real property, and pay appellee $2,000 in attorney fees, $1,500 from the

previous order plus an additional $500.
Licking County, Case No. 15-CA-87                                                         3


       {¶5}   On June 21, 2012, appellee filed a fourth motion for contempt against

appellant, claiming although she listed the real property for sale, she was not making any

effort to sell it, and failed to pay attorney fees as ordered. A hearing before a magistrate

was held on October 18, 2012. By decision filed November 29, 2012, the magistrate

found appellant in contempt on both counts and ordered her to serve the previously

imposed ten day jail sentence, suspended in lieu of purging the contempt by paying the

balance of the attorney fees owed to appellee and pay appellee $3,200 in new attorney

fees. Objections were not filed. By judgment entry filed January 4, 2013, the trial court

entered judgment paralleling the magistrate's decision.

       {¶6}   On July 26, 2013, appellee filed a fifth motion for contempt against

appellant, claiming she failed to sell the real property and failed to pay attorney fees as

previously ordered by the trial court. On October 10, 2013, appellant filed a motion for

contempt against appellee regarding a quit claim deed and a mobile home on the parties'

property. A hearing before a magistrate was held on March 23, 2015. By decision filed

April 1, 2015, the magistrate found appellant in contempt on both counts, and ordered her

to serve twenty days in jail on each count, suspended in lieu of purging the contempt by

paying appellee attorney fees in the amount of $1,561.83, paying outstanding attorney

fees in the amount of $1,000, and paying seventy-five percent of the court costs and

service of process fees.1 Appellant filed objections. By judgment entry filed October 30,

2015, the trial court overruled the objections and entered judgment paralleling the

magistrate's decision.



1The magistrate also found appellee in contempt of court regarding the mobile home on
the property and ordered him to pay appellant's attorney fees and reimbursement
expenses. The $1,561.83 awarded to appellee reflects the final figure after set-off.
Licking County, Case No. 15-CA-87                                                4


      {¶7}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶8}   "THE COURT ERRED WHEN IT FOUND THE APPELLANT IN

CONTEMPT FOR FAILING TO OBTAIN A LOAN MODIFICATION."

                                           II

      {¶9}   "THE COURT ERRED WHEN IT FOUND THE APPELLANT IN

CONTEMPT FOR FAILING TO MAINTAIN THE MORTGAGE ON THE MARITAL

RESIDENCE AND FAILING TO LIST THE MARITAL RESIDENCE FOR SALE."

                                          III

      {¶10} "THE COURT ERRED WHEN IT FOUND THE APPELLANT IN

CONTEMPT FOR FAILING TO OBTAIN A LOAN MODIFICATION OR SELL THE

MARITAL RESIDENCE, SINCE IT HAD PREVIOUSLY FOUND THE APPELLANT IN

CONTEMPT FOR THE SAME ACTS, IN VIOLATION OF HER RIGHTS AGAINST

DOUBLE JEOPARDY AS SET FORTH IN THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE ONE SECTION TEN OF

THE OHIO CONSTITUTION."

                                          IV

      {¶11} "THE COURT ERRED WHEN IT ORDERED THE APPELLANT TO PAY

THE DEFENDANT'S ATTORNEYS FEE, WHICH WAS INCURRED BY PROSECUTING

THE MOTION AND HEARING ON MARCH 23, 2015."
Licking County, Case No. 15-CA-87                                                         5


                                             I

      {¶12} Appellant claims the trial court erred in finding her in contempt for failing to

obtain a loan modification. We disagree.

      {¶13} In its judgment entry filed October 30, 2015, the trial court found appellant

in contempt as follows:



             2. Plaintiff is found to be in contempt for her failure to comply with the

      Court's Orders with respect to the sale of the parties' former marital

      residence at 6073 Stoney Hill Road, SE, Newark, Ohio 43056.***

             3. Plaintiff is found to be in contempt for her failure to reimburse the

      defendant his attorney fees as ordered in the judgment entry of January 4,

      2014.***



      {¶14} These findings stem from appellee's July 26, 2013 motion for contempt

wherein he argued the following:



             As of the filing of this Motion, the plaintiff has not paid the attorney

      fees as she was ordered to do and she has yet to comply with the previous

      orders of the Court to either pay the mortgage payment or sell the real estate

      in order to have the defendant removed from the underlying mortgage

      indebtedness. It is obvious that she continues to drag her feet in getting the

      home sold and meanwhile, the home is now the subject of Foreclosure

      proceedings and the defendant's credit has been significantly affected.
Licking County, Case No. 15-CA-87                                                          6




       {¶15} Upon review, we find the trial court did not find appellant in contempt for

failing to obtain a loan modification.

       {¶16} Assignment of Error I is denied.

                                             II

       {¶17} Appellant claims the trial court erred in finding her in contempt for failing to

maintain the mortgage on the marital residence and failing to list it for sale. We disagree.

       {¶18} We review contempt decisions under an abuse of discretion standard. State

ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69 (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 (1983).

       {¶19} As explained by our brethren from the Fourth District in McDonald v.

McDonald, 4th Dist. Highland No. 12CA1, 2013-Ohio-470, ¶ 17-18:



              Civil contempt exists when a party fails to do something ordered by

       a court for the benefit of an opposing party. Pedone v. Pedone, 11 Ohio

       App.3d 164, 165, 463 N.E.2d 656 (1983); Beach v. Beach, 99 Ohio App.

       428, 431, 134 N.E.2d 162 (1955). The punishment is remedial, or coercive,

       in civil contempt. State ex rel. Henneke v. Davis, 66 Ohio St.3d 119, 120,

       609 N.E .2d 544 (1993). In other words, civil contempt is intended to

       enforce compliance with a court's orders.
Licking County, Case No. 15-CA-87                                                              7


              The party seeking to enforce a court order must establish, by clear

       and convincing evidence, the existence of a court order and the nonmoving

       party's noncompliance with the terms of that order. Wolf v. Wolf, 1st Dist.

       Hamilton No. C-090587, 2010-Ohio-2762, 2010 WL 2473277, ¶ 4; Morford

       v. Morford, 85 Ohio App.3d 50, 55, 619 N.E.2d 71 (4th Dist.1993).



       {¶20} "Clear and convincing evidence" is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶21} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶22} In its judgment entry filed October 30, 2015, the trial court found appellant

in contempt as follows:



              2. Plaintiff is found to be in contempt for her failure to comply with the

       Court's Orders with respect to the sale of the parties' former marital

       residence at 6073 Stoney Hill Road, SE, Newark, Ohio 43056. The plaintiff

       is sentenced to twenty (20) days incarceration in the Licking County Justice

       Center. Imposition of this sentence is to be suspended and the plaintiff shall
Licking County, Case No. 15-CA-87                                                       8


      have the opportunity to purge this contempt by fully and completely

      complying with the following conditions:

             (a) paying the defendant the attorney fees awarded to him as

      provided for in Item 11, below: and,

             (b) by paying her portion of the court costs and service of process

      fees incurred as provided by Item 12, below.

             3. Plaintiff is found to be in contempt for her failure to reimburse the

      defendant his attorney fees as ordered in the judgment entry of January 4,

      2014. The plaintiff is sentenced to twenty (20) days incarceration in the

      Licking County Justice Center. This sentence is to be suspended and the

      plaintiff shall have the opportunity to purge this contempt by fully and

      completely complying with the following conditions:

             (a) paying the defendant the attorney fees awarded to him as

      provided for in Item 11, below: and,

             (b) by paying the defendant the attorney fees of $1,000.00 owed by

      her as a result of an earlier order; and,

             (c) by paying her portion of the court costs and service of process

      fees incurred as provided by Item 12, below.



      {¶23} In his decision filed April 1, 2015, the magistrate found the following

regarding the sale of the marital residence:
Licking County, Case No. 15-CA-87                                                          9


               The Magistrate finds from the evidence admitted into the record that

       the plaintiff has failed to sell or refinance the former marital residence as

       ordered by the Divorce Decree of May 23, 2011, or the agreed judgment

       entries of September 19, 2011, and April 17, 2012.

               The Magistrate finds from the evidence admitted into the record that

       the plaintiff no longer has the property listed for sale with a realtor. The

       most recent listing ended in the spring of 2014, approximately a year ago.

       The plaintiff attributes this to the realtor not being agreeable to showing the

       home when it was convenient to her.

               ***

               The evidence further shows that the plaintiff has not made any

       payments toward the mortgage debt secured by the residence since July 1,

       2011.    This essentially means that the plaintiff has now lived in the

       residence for going on four years without contributing any funds to the

       payment of the mortgage and that she has done nothing to list the residence

       for sale in the past year.



       {¶24} During the March 23, 2015 hearing, appellant admitted she had agreed to

sell the parties' marital residence via the agreed judgment entry decree of divorce filed

May 23, 2011. T. at 7. She also admitted the last time she had made a mortgage payment

was July 1, 2011. T. at 8. The marital residence had been in foreclosure once, but the

action was dismissed. Id. Appellant also admitted that the marital residence was not

currently listed for sale. T. at 8, 20. She explained her realtor told her there was no point
Licking County, Case No. 15-CA-87                                                          10


in relisting the home because "the listing was way higher than what the offers were

coming in at." T. at 45. She had received "probably five offers." Id. Appellee testified

as a result of the marital residence not being sold and his name still being listed on the

mortgage, his "credit is ruined." T. at 32.

       {¶25} We find no abuse of discretion in finding appellant in contempt for failing to

sell the marital residence as agreed to on May 23, 2011.

       {¶26} In his decision filed April 1, 2015, the magistrate found the following

regarding the failure to pay attorney fees:



              The Magistrate finds from the evidence admitted into the record that

       the plaintiff has failed to pay or reimburse the defendant $1,000.00 of his

       attorney fees of $2,200.00 as ordered in the judgment entry of January 4,

       2013. The plaintiff has failed to present a good defense to this allegation.

       The evidence shows that she is employed and earns approximately

       $50,000.00 annually. She is not making mortgage payments, but was able

       to retain an attorney to contest the mortgage foreclosure action by paying

       him $7,500.00.



       {¶27} Appellant admitted to having been ordered to pay appellee attorney fees via

agreed judgment entries filed January 9, 2012 and April 17, 2012 and judgment entry filed

January 4, 2013. T. at 12-13, 14, 17. Appellant admitted to losing track of how much she

owed appellee. T. at 18. She agreed at the time of the hearing, she had not paid all of

the ordered attorney fees. T. at 19-20. Appellee testified to his total attorney fees incurred
Licking County, Case No. 15-CA-87                                                      11


up to the date of the hearing, as well as an estimate for the hearing date. T. at 33;

Defendant's Exhibit A.

      {¶28} We find no abuse of discretion in finding appellant in contempt for failing to

pay attorney fees as ordered.

      {¶29} Upon review, we find clear and convincing evidence to support the trial

court's decision finding appellant in contempt.

      {¶30} Assignment of Error II is denied.

                                            III

      {¶31} Appellant claims the trial court's finding of contempt violated the Double

Jeopardy Clause as set forth in the United States and Ohio Constitutions. We disagree.

      {¶32} Double jeopardy protections do not apply in civil contempt. State v. Miller,

5th Dist. Holmes No. 02 CA 16, 2003-Ohio-948; State v. Cortes, 5th Dist. Holmes No. 00-

CA-017, 2001 WL 1518373 (Nov. 28, 2001); State v. Martin, 5th Dist. Holmes No.

00CA003, 2001 WL 300672 (May 27, 2001).

      {¶33} Assignment of Error III is denied.

                                            IV

      {¶34} Appellant claims the trial court erred in ordering her to pay appellee's

attorney fees on the contempt motion heard on March 23, 2015. We disagree.

      {¶35} R.C. 3105.73 governs the award of attorney fees and litigation expenses.

Subsection (B) states the following:



             In any post-decree motion or proceeding that arises out of an action

      for divorce, dissolution, legal separation, or annulment of marriage or an
Licking County, Case No. 15-CA-87                                                         12


       appeal of that motion or proceeding, the court may award all or part of

       reasonable attorney's fees and litigation expenses to either party if the court

       finds the award equitable. In determining whether an award is equitable, the

       court may consider the parties' income, the conduct of the parties, and any

       other relevant factors the court deems appropriate, but it may not consider

       the parties' assets.



       {¶36} An award of attorney fees in a domestic relations action is within the sound

discretion of the trial court. Wildman v. Wildman, 5th Dist. Licking No. 12-CA-21, 2012-

Ohio-5090; Blakemore, supra.

       {¶37} In its judgment entry filed October 30, 2015, the trial court ordered the

following:



              11. Plaintiff is awarded fifty percent (50%) of her attorney fees

       incurred in connection with her motion and the defendant is awarded all of

       his attorney fees incurred, less $444.00, which is to be deducted from the

       defendant's attorney fees, for a net amount of $4,302.79. These fees shall

       be offset by (a) fifty percent of the amount of attorney fees awarded to the

       plaintiff, $1,192.50, by (b) the amount the plaintiff incurred in maintaining

       and cleaning up around the defendant's mobile home, $1,120.00, (c) the

       plaintiff's court costs incurred to obtain title to the mobile home, $99.00, and

       (d) the amount of personal property taxes the plaintiff paid for the
Licking County, Case No. 15-CA-87                                                        13


       defendant's mobile home, $329.46. This results in a net award of attorney

       fees to the defendant in the amount of $1,561.83.

              The defendant is awarded a judgment for this amount, together with

       statutory interest from the date of the judgment. The plaintiff shall reimburse

       the defendant this amount of attorney fees, together with interest thereon,

       within three (3) months from the filing of this Judgment Entry.



       {¶38} Appellee's motion for contempt against appellant contained two branches,

and he prevailed on both. As a result, the trial court awarded appellee all of his attorney

fees, minus $444.00 in previous miscellaneous fees owed.            Appellant's motion for

contempt against appellee also contained two branches, but she prevailed on only one.

As a result, the trial court awarded appellant half of her attorney fees. The trial court

offset the attorney fees, and deducted from appellee's award monies appellant had

incurred for the mobile home.

       {¶39} Upon review, we find the trial court did not abuse its discretion in the award

of attorney fees.

       {¶40} Assignment of Error IV is denied.

       {¶41} We note appellee requests this court to order appellant to pay his attorney

fees and litigation expenses associated with this appeal. Appellee's Brief at 14-15. We

decline to grant the request, as "such a request must be made by motion pursuant to

App.R. 15(A)." Barbato v. Mercy Medical Center, 5th Dist. Stark No. 2005 CA 00044, ¶

62.
Licking County, Case No. 15-CA-87                                            14


      {¶42} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Baldwin, J. concur.


SGF/sg 317
