[Cite as Bostick v. Bostick, 2015-Ohio-455.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

MARJORIE E. BOSTICK                                  :
                                                     :
        Plaintiff-Appellee                           :   C.A. CASE NO. 2014-CA-22
                                                     :
v.                                                   :   T.C. NO. 11DR246
                                                     :
CHARLES I. BOSTICK                                   :   (Civil appeal from Common Pleas
                                                     :    Court, Domestic Relations)
        Defendant-Appellant                          :
                                                     :

                                                ...........

                                               OPINION

               Rendered on the ___6th___ day of ____February______, 2015.

                                                ...........

JULIA L. LEVERIDGE, Atty, Reg. No. 0072440, 88 West Mound Street, Columbus, Ohio
43215
      Attorney for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200,
Urbana, Ohio 43078
     Attorney for Defendant-Appellant

                                               .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Charles I. Bostick appeals a decision of the Champaign

County Court of Common Pleas, Domestic Relations Division, finding that he failed to

purge an earlier order of the trial court finding him in contempt for failure to pay his

spousal support order and ordering him to serve a thirty-day jail sentence. Charles filed
                                                                                        -2-
a timely notice of appeal with this Court on July 2, 2014.

       {¶ 2} After a marriage lasting approximately twenty-one years, the trial court

entered the parties’ final judgment and decree of divorce on July 16, 2013. The divorce

decree included an order requiring Charles to pay plaintiff-appellee Marjorie E. Bostick

spousal support in the amount of $3,000.00 per month. Charles appealed the decision

of the trial court, and we affirmed the spousal support award in an opinion issued on

February 28, 2014. Bostick v. Bostick, 2d Dist. Champaign No. 2013-CA-32,

2014-Ohio-736 (hereinafter “Bostick I”).

       {¶ 3} On October 30, 2013, Marjorie filed a motion for contempt against Charles

alleging non-payment of the spousal support order. After several continuances granted

to both parties, a contempt hearing was held before the trial court on February 26, 2014.

Charles did not attend the contempt hearing.       Although Charles did not attend the

hearing, he was represented by counsel who argued on his behalf. The trial court

subsequently found Charles in contempt for failing to pay spousal support to Marjorie as

ordered in the divorce decree but deferred determination of his sentence until a hearing

on March 26, 2014.

       {¶ 4} Charles was present at the hearing on March 26, 2014, during which the trial

court sentenced him to thirty days in jail with the opportunity to purge the contempt order

by performing a certain condition on or before a hearing scheduled on July 1, 2014,

specifically, paying the spousal support arrearage owed to Marjorie. In order to purge

the contempt order, Charles was required to pay Marjorie the following amounts:

$5,000.00 by April 20, 2014; an additional $5,000.00 by May 20, 2014; and thereafter,

$3,000.00 per month plus court costs. It is undisputed that as of July 1, 2014, Charles
                                                                                            -3-
had only paid Marjorie $1,000.00 towards the arrearage. Charles did not appeal from

the contempt order of February 26, 2014, nor did he appeal from the trial court’s

imposition of a thirty-day jail sentence on March 26, 2014, if he failed to purge the

contempt.

       {¶ 5} Nevertheless, Charles was present with his attorney at the July 1, 2014,

purge hearing, wherein the trial court found that he had not purged the contempt and

ordered him to serve thirty days in jail, as originally ordered. As previously discussed,

Charles filed a timely notice of appeal from the trial court ‘s decision finding that he failed

to purge the contempt and imposing a jail sentence. Upon Charles’ motion, we granted a

stay of the imposition of the jail sentence pending the outcome of the appeal.

       {¶ 6} Charles’ appeal is now properly before us.

       {¶ 7} Charles’ sole assignment of error is as follows:

       {¶ 8} “THE TRIAL COURT ERRED IN IMPOSING A THIRTY (30) DAY JAIL

SENTENCE FOR CONTEMPT OF COURT ON DEFENDANT, WHERE DEFENDANT

WAS NOT ALLOWED TO PRESENT EVIDENCE OF HIS INABILITY TO PURGE

CONTEMPT.”

       {¶ 9} In his sole assignment, Charles contends that the trial court erred when it

imposed a thirty day jail sentence in light of his failure to purge the contempt order by July

1, 2014. Specifically, Charles argues that the trial court erred when it refused to allow

him to present evidence at the purge hearing regarding his inability to pay the arrearage

and monthly spousal support award to Marjorie.

       {¶ 10} Recently, in Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979

N.E.2d 297, the Ohio Supreme Court addressed whether a defendant subjected to civil
                                                                                        -4-
contempt for failure to comply with his child support obligations had a right to counsel at

the purge hearing. Id. In concluding that the defendant had no right to counsel, the Ohio

Supreme Court relied on the differences between a contempt hearing and a purge

hearing. Id. The Liming court stated that “the question of contempt is decided at a

contempt hearing, where an alleged contemnor ‘will have had the opportunity to defend

against the contempt charges and otherwise object to or appeal from a finding of

contempt and any purge conditions.’ ” (Emphasis added.) The Docks Venture, L.L.C. v.

Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 20,

citing Liming, at ¶ 30. “But at a purge hearing, ‘the propriety of the contempt finding or

the purge conditions is not in question.’ ” Id. Rather, the purge hearing is limited to

determining whether the contemnor complied with the condition imposed for purging the

contempt. Id.

       {¶ 11} A court order finding a party in contempt and imposing a sentence

conditioned on the failure to purge is a final appealable order on the issue regarding

whether the party is in contempt of court. Docks Venture, at ¶ 23. The “contemnor may

have an additional appeal on the question of whether the purge conditions have been met

following execution of sentence on the failure to purge.” Id.

       {¶ 12} In the instant case, Charles’ contempt hearing was held on February 26,

2014. Although he was represented by counsel, Charles did not personally attend the

hearing wherein he was held in contempt for failure to pay spousal support as ordered in

the parties’ final judgment and decree of divorce. Because Charles failed to attend the

contempt hearing, the trial court scheduled a second hearing on March 26, 2014, in order

to impose a sentence upon Charles for being found in contempt. Charles was present
                                                                                       -5-
for the sentencing hearing and represented by counsel. At the March 26, 2014, hearing,

it was determined that Charles would be given the opportunity to purge his contempt by

paying Marjorie the existing spousal support arrearage by July 1, 2014, or serve a

thirty-day jail sentence.

       {¶ 13} Pursuant to the decision in Liming, Charles had the opportunity at the

hearings on February 26, 2014, and March 26, 2014, “to defend against the contempt

charges and otherwise object to or appeal from a finding of contempt and any purge

conditions.” Id. at ¶ 30.   The trial court’s decision on March 26, 2014, was a final

appealable order. The record of the hearings establish that Charles did not object to the

contempt order nor the purge conditions imposed by the trial court. More importantly,

Charles failed to appeal from the trial court’s contempt order and the purge conditions.

By failing to appeal the trial court’s contempt order and purge conditions, Charles waived

his right to dispute the propriety of the contempt order, as well as the purge conditions

ordered by the court.

       {¶ 14} The only issue at the hearing on July 1, 2014, pertained to whether Charles

performed the court-ordered conditions necessary to purge his contempt.              It is

undisputed that Charles only paid Marjorie $1,000.00 towards the spousal support

arrearage by July 1, 2014. Thus, the trial court properly found that Charles failed to

satisfy his purge conditions. The purge hearing was not the proper venue for Charles to

introduce evidence regarding his inability to pay the court-ordered spousal support

obligation. The time for presenting evidence on his inability to pay expired when Charles

failed to appeal the trial court’s decision finding him in contempt and imposing purge

conditions. Any issue regarding his inability to pay became res judicata at that point.
                                                                                       -6-
The only remaining issue was whether Charles paid Marjorie the spousal support he

owed in order to purge the contempt finding. He did not. Accordingly, the trial court did

not abuse its discretion when it refused to allow Charles to introduce evidence of his

inability to pay the spousal support obligation at the purge hearing and ordered him to

serve a thirty days in jail.

       {¶ 15} Charles’ sole assignment of error is overruled.

       {¶ 16} Charles’ sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                      ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Julia L. Leveridge
Darrell L. Heckman
Hon. Lori L. Reisinger
