[Cite as King v. King, 2019-Ohio-722.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Denise F. King,                                :

                 Plaintiff-Appellee,           :               No. 18AP-84
                                                           (C.P.C. No. 03DR-3187)
v.                                             :
                                                        (REGULAR CALENDAR)
George R. King,                                :

                 Defendant-Appellant.          :




                                         D E C I S I O N

                                   Rendered on February 28, 2019


                 On brief: Jon M. Cope, Attorney at Law, and Jon M. Cope, for
                 appellee. Argued: Jon M. Cope.

                 On brief: Grossman Law Offices, John H. Cousins, IV, and
                 Anthony R. Auten, for appellant. Argued: John H. Cousins,
                 IV.

                  APPEAL from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations

BROWN, J.
        {¶ 1} George R. King ("Roger"), defendant-appellant, appeals from the judgment
entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, in
which the court denied appellant's objections to a magistrate's order and granted the
objections of Denise F. King ("Denise"), plaintiff-appellee.
        {¶ 2} In May 2006, Roger and Denise divorced pursuant to an agreed divorce
decree. Pursuant to a decision from an arbitration panel, Roger was required to pay Denise
$150,000 per year in spousal support, payable in installments of $4,200 per month and
$24,900 per quarter. The court retained jurisdiction to modify the amount and duration of
spousal support.
No. 18AP-84                                                                              2

      {¶ 3} In September 2009, via e-mail, Roger requested from Denise, and Denise
agreed to, a four-month, 10 percent temporary reduction in the monthly and September
2009 quarterly spousal support payments, as well as a deferral of the September 2009
quarterly support payment until December 16, 2009, subject to Roger providing proof of a
10 percent drop in income for 2009. Roger confirmed her acceptance via e-mail and added
that if the downward trend in his income continued, he would ask for a permanent
reduction in his support payments. He acknowledged the terms were temporary in nature.
      {¶ 4} In March 2010, Roger asked Denise for a 15 percent reduction in support for
the remainder of 2010 and a delay of the September quarterly payment until December 15,
2010. The parties exchanged e-mails for several months on the issue. In a July 2010 e-mail,
Roger indicated he was seeking a support reduction for the rest of 2010 through April 2011
and was not requesting a deferral. In a July 29, 2010 e-mail, Denise indicated she would
agree to reduce spousal support payments by 10 percent for the remainder of 2010. Toward
the end of 2010, Denise sought from Roger, via e-mails, the outstanding past due funds
from their first agreement and stated in a January 2011 e-mail the original court order
specified amounts he was to pay.
      {¶ 5} In a November 26, 2011 letter, Roger indicated that his income had decreased
and asked for a decrease in the support payment to $90,000 for 2012.
      {¶ 6} In a January 6, 2012 e-mail, Denise proposed Roger pay spousal support of
$102,242 per year. After Denise declined to accept Roger's counterproposal that he pay
$84,000 per year, in a January 24, 2012 e-mail, Denise agreed to his proposal of payments
of $3,500 on the 15th and $3,500 on the 30th of each month. Thereafter, Roger paid Denise
according to those terms.
      {¶ 7} In a January 11, 2013 letter, Roger asked Denise for another modification of
spousal support to $75,000 per year. In a January 20, 2013 e-mail, Denise denied Roger's
request and indicated her desire to keep the current payment.
      {¶ 8} In a January 2, 2014 letter, Roger told Denise he would be retiring on or
before June 30, 2014 and his annual compensation had been further reduced. On
January 12, 2014, Denise responded that she really needed the same payments for another
year. Subsequently, Denise asked Roger for his tax filings back to 2005 and explained he
No. 18AP-84                                                                                 3

was not meeting his obligations and not paying the court-ordered amount, but if they
shared financial information, they may be able to work out a solution.
       {¶ 9} In an April 13, 2014 letter, Roger informed Denise that he was retiring on
June 30, 2014. Denise responded in a May 1, 2014 e-mail that there existed a court order,
and if he wanted to change that amount, they could exchange tax information as previously
suggested.
       {¶ 10} On May 28, 2014, Roger filed a motion to modify spousal support. On
June 13, 2014, Denise filed a motion for contempt and request for sanctions, asserting that
Roger had not paid the amounts ordered.
       {¶ 11} On January 28 and 29, 2015, the magistrate held a hearing. The parties
stipulated to the amounts Roger had paid from 2009 to 2014. Denise claimed Roger owed
her $185,201 through June 30, 2014.
       {¶ 12} On May 11, 2016, the magistrate issued a decision, in which the magistrate
recommended the court terminate Roger's spousal support as of July 1, 2014, and the court
deny Denise's motion for contempt. The magistrate noted any spousal support ordered
prior to June 1, 2014 was still due and owing. The trial court adopted the magistrate's
decision the same day. Neither party filed objections or an appeal.
       {¶ 13} On June 20, 2016, Denise filed another motion for contempt, claiming Roger
had failed to make any payments on the $185,201 arrearage she claimed he owed. Roger
filed a motion to dismiss asserting Denise's motion for contempt was precluded by res
judicata. On October 20, 2016, the magistrate filed an order denying Roger's motion to
dismiss. On October 31, 2016, Roger filed a motion to set aside the magistrate's order.
       {¶ 14} On December 8, 2016, Denise filed a motion to liquidate the arrearage.
       {¶ 15} After a hearing, the magistrate issued a decision on February 27, 2017 in
which the trial court denied Roger's motion to set aside. The trial court rejected Roger's res
judicata argument, finding the magistrate's May 11, 2016 decision did not resolve the
arrearage accumulated prior to July 1, 2014.
       {¶ 16} After a hearing, on June 23, 2017, the magistrate denied Denise's motion for
contempt, in part, finding Roger was not in contempt, but ordering Roger to pay $172,710
for past due spousal support. The magistrate also granted Denise's motion to liquidate and
ordered Roger to pay $14,392.50 per month until the amount due was paid in full.
No. 18AP-84                                                                                   4

       {¶ 17} Roger filed objections, claiming res judicata, laches, and law of the case
barred Denise's motion for contempt and motion to liquidate arrearage. Denise also filed
objections asserting the magistrate should have found Roger in contempt and ordered him
to pay the full $172,710 immediately.
       {¶ 18} On February 2, 2018, the trial court adopted the magistrate's decision,
overruled Roger's objections, and sustained Denise's objections. The court found the
magistrate's May 11, 2016 decision included an order for Roger to pay the arrearages. Roger
appeals the judgment of the trial court, asserting the following four assignments of error:
              [I.] THE TRIAL COURT ERRED AND VIOLATED THE
              DOCTRINE OF RES JUDICATA BY GRANTING APPELLEE'S
              MOTIONS     FOR  CONTEMPT,    LIQUIDATION   OF
              ARREARAGES, AND ATTORNEY FEES.

              [II.] THE TRIAL COURT VIOLATED THE LAW-OF-THE-
              CASE DOCTRINE BY REFUSING TO ADHERE TO ITS PRIOR
              RULINGS THAT RELIEF WAS BARRED BY THE
              DOCTRINES OF WAIVER AND LACHES.

              [III.] EVEN IF THE TRIAL COURT WERE PERMITTED TO
              RELITIGAGE THE ISSUE OF LACHES, THE TRIAL COURT
              ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
              THE DEFENSE OF LACHES DID NOT APPLY.

              [IV.] EVEN IF THE TRIAL COURT WERE PERMITTED TO
              RELITIGATE THE ISSUE OF WAIVER, THE TRIAL COURT
              ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
              APPELLEE "REVOKED" HER WAIVER.

       {¶ 19} We address Roger's first, second, and third assignments of error together.
Roger argues in his first assignment of error the trial court erred and violated the doctrine
of res judicata when it granted Denise's motions for contempt, liquidation of arrearages,
and attorney fees. Roger argues in his second assignment of error the trial court erred when
it refused to adhere to its prior rulings that relief was barred by waiver and laches. Roger
argues in his third assignment of error that, even if the trial court could redetermine the
issue of laches, the court erred when it found the defense of laches did not apply.
       {¶ 20} "The applicability of the doctrine of res judicata presents a question of law,"
and is therefore reviewed under a de novo standard. Daniel v. Williams, 10th Dist. No.
13AP-155, 2014-Ohio-273, ¶ 18. In State ex rel. Nickoli v. Erie Metroparks, 124 Ohio St.3d
No. 18AP-84                                                                                5

449, 2010-Ohio-606, ¶ 21, the Supreme Court of Ohio summarized the doctrine of res
judicata as follows:
              In Ohio, "[t]he doctrine of res judicata encompasses the two
              related concepts of claim preclusion, also known as res judicata
              or estoppel by judgment, and issue preclusion, also known as
              collateral estoppel." O'Nesti v. DeBartolo Realty Corp., 113
              Ohio St.3d 59, 2007-Ohio-1102, ¶ 6, 862 N.E.2d 803. "Claim
              preclusion prevents subsequent actions, by the same parties or
              their privies, based upon any claim arising out of a transaction
              that was the subject matter of a previous action," whereas issue
              preclusion, or collateral estoppel, "precludes the relitigation, in
              a second action, of an issue that had been actually and
              necessarily litigated and determined in a prior action that was
              based on a different cause of action." Ft. Frye Teachers Assn.,
              OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d
              392, 395, 1998 Ohio 435, 692 N.E.2d 140; see Holzemer v.
              Urbanski (1999), 86 Ohio St.3d 129, 133, 1999 Ohio 91, 712
              N.E.2d 713.

       {¶ 21} Res judicata applies where: "(1) there was a prior valid judgment on the
merits; (2) the second action involved the same parties as the first action; (3) the present
action raises claims that were or could have been litigated in the prior action; and (4) both
actions arise out of the same transaction or occurrence." Reasoner v. Columbus, 10th Dist.
No. 04AP-800, 2005-Ohio-468, ¶ 5.
       {¶ 22} "Laches is 'an omission to assert a right for an unreasonable and unexplained
length of time, under circumstances prejudicial to the adverse party.' " State ex rel. Eaton
Corp. v. Indus. Comm., 80 Ohio St.3d 352, 356 (1997), quoting Connin v. Bailey, 15 Ohio
St.3d 34, 35 (1984). Because laches is predominately a factual question for a trial court to
resolve according to the circumstances of each case, an appellate court will only reverse a
trial court's decision regarding the application of laches if the trial court abuses its
discretion. Lewis & Michael Moving and Storage, Inc. v. Stofcheck Ambulance Serv., Inc.,
10th Dist. No. 05AP-662, 2006-Ohio-3810, ¶ 40-41.
       {¶ 23} "Waiver is the voluntary surrender or relinquishment of a known legal right
by agreement, or a failure to act upon a right plainly indicating an intention not to claim
such right." Meyer v. Chagrin Falls Exempted Village School Dist. Bd. of Edn., 9 Ohio
App.3d 320, 324 (8th Dist.1983). "[W]aiver of a contract provision may be express or
implied." Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, ¶ 24 (11th Dist.),
No. 18AP-84                                                                                 6

citing Griffith v. Linton, 130 Ohio App.3d 746, 751 (10th Dist.1998). When a party to a
contract offers, by word or action, a waiver of certain duties under the contract, other
parties who change their position as a result of the waiver may enforce the waiver. Andrews
v. Ohio State Teachers Retirement Sys., 62 Ohio St.2d 202, 205 (1980). The party asserting
the existence of a waiver must prove the waiving party's clear, unequivocal, and decisive act
to waive. Automated Solutions Corp. v. Paragon Data Sys., Inc., 167 Ohio App.3d 685,
2006-Ohio-3492, ¶ 28 (8th Dist.). Whether a party's inconsistent conduct amounts to a
waiver involves a factual determination to be resolved by the trier of fact. Lamberjack v.
Priesman, 6th Dist. No. 92-OT-006 (Feb. 5, 1993); Walker v. Holland, 117 Ohio App.3d
775, 791 (2d Dist.1997).
       {¶ 24} In the present case, Roger presents several arguments. Roger first argues that
Denise's motion for contempt was barred by the claim preclusion branch of res judicata
because the same issues were litigated, or could have been litigated, in her previous June
13, 2014 contempt action, and the court's May 11, 2016 judgment was a final, valid judgment
on the 2014 contempt motion. Roger claims that, in the May 11, 2016 judgment, the trial
court denied the motion for contempt and did not order a liquidation of the claimed
arrearage. Roger asserts that in both the first and second contempt motions, Denise
requested the trial court order him to pay her the same amount of spousal support between
2009 and 2014 and liquidate the same arrearage. Roger notes Denise had the opportunity
to appeal the trial court's 2016 judgment denying her first contempt motion but failed to do
so.
       {¶ 25} Roger also argues that issue preclusion prohibited Denise from relitigating
laches and waiver. Roger contends when the trial court denied Denise's contempt action on
May 11, 2016, it conclusively adjudicated the issues of waiver and laches. Roger points out
that, with regard to the court's finding that laches applied, the court concluded he relied to
his detriment on Denise's delay and she was well aware that the full amount was not being
paid because she had agreements with him to pay lesser amounts. Roger also asserts that,
with regard to the court's finding that waiver applied, the court concluded Denise
relinquished her ability to enforce the payment of the full amount of support by agreeing
via e-mails that she assented to a lower support amount and her conduct appeared for an
extended period to be inconsistent with the intent to only temporarily waive full support.
No. 18AP-84                                                                                   7

Roger also contends that, accordingly to the May 11, 2016 judgment, both wavier and laches
extinguished Denise's claim to any underpayments of spousal support from 2009-2014,
and the law-of-the-case doctrine prohibited the trial court from relitigating those issues.
       {¶ 26} Finally, Roger argues that even if the trial court could relitigate the issue of
laches, the court erred when it found that laches did not apply. Roger points out that the
court found in its May 11, 2016 judgment denying Denise's first contempt action that Roger
satisfied all of the necessary elements of laches, but in the June 23, 2017 decision, the
magistrate determined Roger did not satisfy the element of prejudice. Roger contends
Denise's 2014 and 2016 contempt actions were identical because she requested to liquidate
the arrearages in both actions. He also claims the most obvious prejudice, which the trial
court ignored, was his decision to forgo filing a modification with the court in 2009 when
he believed the parties had agreed to permanently reduce his support.
       {¶ 27} After thoroughly reviewing the record, we find Roger's arguments without
merit. In the end analysis, we believe the matter is not as difficult as Roger attempts to make
it seem. We agree with Denise that the May 11, 2016 decision clearly indicated Roger still
owed the sums for past spousal support that he did not pay pursuant to the terms of the
agreement, and the magistrate found the parties' agreements in the several years of e-mails
did not serve to modify the total spousal support owed. The crux of what the magistrate
found in the May 11, 2016 decision was that Roger could not be held in contempt for failing
to pay such past sums based on equitable defenses. In the discussion of contempt, the
magistrate found the analysis of laches in this case was not determinative of whether
support was owed but only whether Roger had a defense to a finding of contempt, and, in
fact, Roger clearly failed to meet his obligations of support. The magistrate went on to
explain that the defenses of waiver and laches were unlikely to succeed in any future
enforcement actions filed by Denise for past due spousal support sums because the focus
will be on whether Roger owes past due sums and not whether enforcement of the orders
is appropriate. The May 11, 2016 magistrate's decision simply did not address whether
Roger should be ordered to liquidate the past sums due but focused only on whether he
should be held in contempt for failure to pay such past sums, and the magistrate specifically
indicated Denise's only motion before the court was the motion for contempt. The
liquidation of past sums due and contempt for failing to pay such past sums are two distinct
No. 18AP-84                                                                                 8

issues, and having found that Roger should not be held in contempt, the magistrate did not
address liquidation in the May 11, 2016 decision. The magistrate did briefly discuss the issue
and explicitly left the door open for a future enforcement order to be filed by Denise should
Roger fail to pay the past sums.
       {¶ 28} We fail to see how res judicata prevented Denise from filing the second
motion for contempt and seeking a liquidation order, and the issues of waiver and laches
were addressed in the May 2016 decision only in the context of whether Roger should be
held in contempt for failure to pay the support due in a timely manner and not in the context
of whether he should be held in contempt for failure to pay the total spousal support
arrearage he had accumulated. When Denise filed her second motion for contempt in June
2016, her contempt concerned Roger's failure to pay this total spousal support arrearage
since the May 11, 2016 decision, which had made it clear he owed such. This issue was
distinct from that litigated in the first motion for contempt. Laches was clearly inapplicable
to the second motion for contempt, as there was only a one-month delay between the
magistrate's May 2016 decision and Denise's June 2016 motion for contempt. In sum,
Denise's two motions for contempt addressed different issues, and res judicata, waiver, and
laches did not apply to prevent her filing of the second motion for contempt.
       {¶ 29} Insofar as Roger raises several other arguments as to factual errors the trial
court made in justifying its decision, we decline to address them, as they do not detract from
our above analysis. However, we must address Roger's argument with regard to the trial
court's order that he pay statutory interest on the arrearage from May 11, 2014, which Roger
points out was two years before Denise filed her 2016 contempt action. We believe the date
of May 11, 2014 is a typographical error, and was meant to be May 11, 2016, the date of the
magistrate's decision. In Denise's cross-objections to the magistrate's May 11, 2016
decision, Denise makes the same typographical error when requesting statutory interest "as
of the Magistrate's Decision of 5/11/2014." However, we are not certain this is what the trial
court meant. Therefore, to the extent the trial court's judgment needs clarified/corrected to
reflect the date from which statutory interest must be paid, we sustain the first assignment
of error. For these reasons, we overrule Roger's second and third assignments of error. We
sustain Roger's first assignment of error to the limited extent discussed above and overrule
it in all other respects.
No. 18AP-84                                                                                 9

       {¶ 30} Roger argues in his fourth assignment of error that, even if the court were
permitted to relitigate the issue of wavier, the trial court erred when it found that Denise
revoked her waiver. Roger points out that, in denying Denise's 2014 contempt motion, the
court found Denise waived "her ability to enforce the payment of the full amount of
support," but then inexplicably found in granting her 2016 contempt motion that she had
withdrawn or revoked her waiver as to the receipt of the full amount of spousal support.
(May 11, 2016 Mag. Decision at 33.) Roger asserts that, in order for Denise to revoke her
waiver, he would have had to consent to the revocation, but he did not. Roger further
contends that, contrary to the trial court's explanation in the 2018 decision that the waiver
referred to in the 2016 decision was a waiver as to the timeliness of payments and did not
constitute a waiver of payments that were still due and owing, nowhere in the 2016 decision
does the magistrate limit the waiver to timeliness but, instead, stated that Denise's conduct
was consistent with someone who intended to waive support on a permanent basis.
       {¶ 31} Similar to our analysis with regard to the first, second, and third assignments
of error, we do not believe the 2016 decision, with regard to waiver, referred to the total
amount of payments due or arrearages for spousal support. Instead, the waiver addressed
in the 2016 decision was in reference to whether Roger should be held in contempt for
failing to pay spousal support amounts as ordered. Because the court believed Denise
waived her right to the spousal support schedule as originally ordered, it found Roger was
not in contempt. The magistrate in the 2016 decision believed Roger held a good-faith belief
he did not have to pay the full amount of ordered support based upon his e-mail
negotiations with Denise; thus, the finding of no contempt in 2016. However, despite
Denise's waiver of the right to receive her full spousal support payments on the schedule as
originally ordered by the court, as found in 2016, she was, nevertheless, entitled to the full
amount of her originally ordered support amounts, as found in 2018. After the 2016
decision, Roger no longer had the same "good-faith" defense to the failure to pay the full
amount of spousal support as ordered, as the magistrate made clear in the 2016 decision
that he still owed the full amount of support. For these reasons, Roger's fourth assignment
of error is overruled.
       {¶ 32} Accordingly, we overrule Roger's second, third, and fourth assignments of
error. We sustain Roger's first assignment of error to the limited extent discussed above
No. 18AP-84                                                                             10

and overrule it in all other respects. We remand the matter to clarify/correct the possible
typographical error discussed under Roger's first assignment of error, and affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
in all other respects.
                                                Judgment affirmed and cause remanded.

                          DORRIAN and HORTON, JJ., concur.

                              ____________________
