[Cite as Henry v. Henry, 2015-Ohio-4350.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

SUZANNE R. HENRY                                    C.A. No.      27696

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
SCOTT A. HENRY                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   2009-06-1707

                                DECISION AND JOURNAL ENTRY

Dated: October 21, 2015



        SCHAFER, Judge.

        {¶1}    Appellant, Suzanne R. Henry, appeals the judgment of the Summit County Court

of Common Pleas, Domestic Relations Division, that found her in contempt, ordered her to pay

the attorney fees and costs of her former husband, Scott Henry, and, as part of the purge

condition, ordered her to pay $18,000 to her former husband. This Court affirms.

                                               I.

        {¶2}    In 2009, the trial court issued an uncontested divorce decree.     However, Mr.

Henry filed a motion to vacate the divorce decree in 2012, which the trial court granted due to

lack of service, thus reopening the case.
                                                 2


       {¶3}    The parties stipulated to all issues at trial, with the exception of spousal support,

and entered into an agreed judgment entry,1 which was adopted by the trial court on March 1,

2013. Relevant to this appeal, paragraph three of the judgment entry states as follows:

       Property Settlement. Upon the closing of the sale of the former marital residence
       * * * , [Ms. Henry] shall pay to [Mr. Henry] as and for property settlement the
       sum of Twenty Thousand Dollars ($20,000) regardless of the amount of net
       proceeds received by [Ms. Henry].

       {¶4}    On March 11, 2013, the magistrate issued a decision ordering Ms. Henry to pay

spousal support to Mr. Henry. Additionally, as relevant to this appeal, the magistrate reiterated

that the parties “stipulated to sell the marital residence,” the proceeds of which “shall be used to

pay off balances” of the property’s two mortgages, as well as the parties’ various credit cards.

The magistrate found that once these debts were paid off with the home sale’s proceeds, the

parties stipulated that Mr. Henry “shall receive $20,000 for his interest in the home and [Ms.

Henry] shall retain any remaining proceeds.” The trial court adopted the magistrate’s decision.

Ms. Henry subsequently filed objections to the magistrate’s decision on spousal support as well

as a Civ.R. 60(B) motion for relief from the judgment to pay the $20,000 to her former husband.




       1
          Although the parties describe the March 1, 2013 judgment entry as a “divorce decree”
in their appellate briefs, it does not appear to be a final appealable order. The March 1, 2013
entry does not include spousal support and the March 11, 2013 entry does not render either of the
court’s two orders final. Thus, the March 1, 2013 entry is not technically a “divorce decree.” As
a consequence, Ms. Henry was found in contempt for violating an interlocutory order, not a final
judgment. However, the Supreme Court of Ohio has nonetheless held that “[w]here a non-
appealable interlocutory order results in a judgment of contempt, including fine or imprisonment,
such a judgment is a final and appealable order and presents to the appellate court for review of
the propriety of the interlocutory order which is the underlying basis for the contempt
adjudication.” Smith v. Chester Twp. Bd. of Trustees, 60 Ohio St.2d 13 (1979), syllabus.
                                                3


The trial court ultimately overruled Ms. Henry’s objections and denied her Civ.R. 60(B) motion

in separate orders on January 22, 2015.2

       {¶5}    On October 11, 2013, Mr. Henry filed a motion asking the trial court to hold Ms.

Henry in contempt for failing to pay the full amount of the property settlement as set forth in

paragraph three of the judgment entry. The magistrate held a hearing on Mr. Henry’s motion

and, on January 17, 2014, found Ms. Henry in contempt for failing to pay Mr. Henry the full

amount due under the property settlement despite the fact that the marital home had been sold in

August 2013. The trial court adopted the magistrate’s decision. Ms. Henry subsequently filed

objections to the magistrate’s decision finding her in contempt, which the trial court ultimately

overruled on January 28, 2015.

       {¶6}    Ms. Henry timely filed this appeal challenging the trial court’s January 28, 2015

judgment, raising four assignments of error for our review.

                                               II.

                                    Assignment of Error I

       The trial court erred in interpreting its own judgment entry and holding Ms.
       Henry in contempt for violating terms not included in its order.

       {¶7}    In her first assignment of error, Ms. Henry argues that the trial court erred by

finding her in contempt because a discrepancy in the language of the March 1, 2013 judgment

entry and the magistrate’s March 11, 2013 decision rendered the trial court’s directive

ambiguous. Ms. Henry maintains that this ambiguity requires the language contained in the


       2
          Ms. Henry filed a notice of appeal intending to challenge the trial court’s March 11,
2013 spousal support order; however this Court dismissed that attempted appeal as being
untimely. At oral argument in the instant matter, appellate counsel for Ms. Henry contested the
validity and propriety of the trial court’s spousal support order. As Ms. Henry’s attempted
appeal from the trial court’s spousal support order was untimely, all issues pertaining to the
spousal support order are not before us and we decline to address them.
                                                 4


March 11, 2013 magistrate’s decision to govern, which, according to Ms. Henry, mandates that

she merely take “reasonable steps” to comply with the trial court’s order to pay Mr. Henry

$20,000 from the proceeds of the sale of the marital residence. We disagree.

       {¶8}    Under Ohio law, court orders are subject to interpretation if they are ambiguous.

See Collette v. Collette, 9th Dist. Summit No. 20423, 2001 WL 986209, * 2 (Aug. 22, 2001),

quoting Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 348 (2d Dist.1991). “If there is good

faith confusion over the interpretation to be given to a particular clause of a [court order], the

trial court in enforcing that [order] has the power to hear the matter, clarify the confusion, and

resolve the dispute.” Id. This Court reviews a trial court's decision to interpret the terms of a

court order under the abuse of discretion standard. Id. An abuse of discretion means more than

an error of judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse of discretion standard, a reviewing court may not simply substitute its own judgment for

that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶9}    After reviewing the judgment entry and the magistrate’s decision in their entirety,

we cannot conclude that the trial court abused its discretion. The judgment entry ordered Ms.

Henry to pay $20,000 to Mr. Henry “regardless of the amount of net proceeds received by [Ms.

Henry]” in the sale of the marital residence. The magistrate’s decision, on the other hand,

strictly concerned the unresolved issue of spousal support and it did not indicate that the

magistrate intended to alter the terms of the previous judgment entry. While the factual findings

contained within the magistrate’s decision reiterated the parties’ prior stipulation in language that

did not mirror the language contained in the judgment entry, this reiteration, when read in

context, was clearly intended to serve as background for the spousal support order. Contrary to
                                                5


Ms. Henry’s argument, the language within the judgment entry does not conflict with the

magistrate’s decision. As such, the trial court’s instruction that Ms. Henry pay Mr. Henry

$20,000 from the proceeds of the sale of the marital residence regardless of the net proceeds

received in the sale was not ambiguous. Because no ambiguity exists, we determine that the trial

court did not err in finding Ms. Henry in contempt for violating the terms of the judgment entry.

       {¶10} Ms. Henry’s first assignment of error is overruled.

                                    Assignment of Error II

       The trial court erred and abused its discretion by finding Ms. Henry in
       contempt of court and awarding attorney’s fees to Mr. Henry.

       {¶11} In her second assignment of error, Ms. Henry argues that the trial court erred by

finding her in contempt because its finding that she had the ability to pay $20,000 to Mr. Henry

was “overblown and arbitrary.” We disagree.

       {¶12} “This Court reviews contempt proceedings for an abuse of discretion.” Morrow v.

Becker, 9th Dist. Medina No. 11CA0066–M, 2012–Ohio–3875, ¶ 47. R.C. 2705.02 governs acts

in contempt of court and provides, in relevant part: “A person guilty of any of the following acts

may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process,

order, rule, judgment, or command of a court or officer[.]” To establish contempt, the moving

party must “establish a valid court order, knowledge of the order by the defendant, and a

violation of the order.” State v. Komadina, 9th Dist. Lorain No. 03CA008325, 2004-Ohio-4962,

¶ 11. “In civil contempt proceedings, a finding of contempt must be premised on clear and

convincing evidence.” Zemla v. Zemla, 9th Dist. Wayne No. 11CA0010, 2012–Ohio–2829, ¶ 11.

“Clear and convincing evidence is that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a
                                                6


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. The party seeking to hold the other in contempt

bears the burden of proving the other's failure to comply with an order of the court. Zemla at ¶

11. “Once the movant proves his prima facie case, the contemnor must present evidence of [her]

inability to comply with the order or any other available defense.” Id; see also Watral v. Watral,

9th Dist. Medina No. 05CA0017-M, 2005-Ohio-6917, ¶ 13, quoting Herold v. Herold, 10th Dist.

Franklin No. 04AP-206, 2004-Ohio-6727, ¶ 28, citing Pugh v. Pugh, 15 Ohio St.3d 136, 140

(1984) (“It is well-established that once a defendant's failure to pay court-ordered [payments] has

been sufficiently proven, the defendant may raise inability to comply as an affirmative defense to

contempt.”).

       {¶13} The March 1, 2013 judgment entry mandated that Ms. Henry had to pay $20,000

following the sale of the marital residence. The record indicates that Ms. Henry did sell the

marital residence in August 2013 for $205,000, which was significantly less than its appraised

value of $230,000.3 After paying off the marital debts, closing costs, and moving expenses with

the proceeds of the sale, Ms. Henry was left with only $3,700 in net proceeds. She paid $2,000

of the $3,700 net proceeds to Mr. Henry, but was deficient in her obligation by $18,000. Ms.

Henry acknowledged this deficiency during her testimony at the contempt hearing. In light of

this evidence, the trial court did not abuse its discretion in finding that Ms. Henry was in

contempt for violating the March 1, 2013 judgment entry.



       3
           Ms. Henry testified at the contempt hearing that despite the fact that the marital
residence was appraised at $230,000, she decided to sell the house for $205,000 because it was
the best offer that she received. Moreover, Ms. Henry testified that a home inspection revealed
that the property tested positive for high levels of radon and also revealed the presence of
carpenter ants, both of which negatively impacted the value of the home. Lastly, Ms. Henry
testified that $205,000 was at the top range of comparable home sales in her neighborhood.
                                                 7


         {¶14} Ms. Henry attempted to avoid the contempt finding by offering evidence

regarding her purported inability to pay due to the reduced sale price of the marital residence and

her lack of other available assets to liquidate. But, the trial court received evidence that Ms.

Henry’s gross annual income was $61,000 and determined that although Ms. Henry did not have

the ability to pay the full balance of the debt owed to Mr. Henry at the time of the contempt

hearing, she did have the ability to pay the full debt over time. In light of this evidence in the

record, the trial court did not abuse its discretion in determining that Ms. Henry failed to carry

her burden to establish the inability to pay. As a result, we cannot conclude that the trial court

abused its discretion in entering a contempt finding against Ms. Henry.

         {¶15} Although Ms. Henry’s assignment of error also challenges the trial court’s

decision to order that she pay Mr. Henry’s attorney fees, she has failed to develop her argument

on this point within the text of her brief. As a result, we reject her challenge to the attorney fee

award. See Cardone v. Cardone, 9th Dist. Lorain No. 18349, 1998 WL 224934, * 8 (May 6,

1998).

         {¶16} Ms. Henry’s second assignment of error is overruled.

                                    Assignment of Error III

         The trial court erred in holding Ms. Henry in contempt for failing to pay Mr.
         Henry a lump sum judgment, not considered spousal support, in violation of
         Section 15, Article I of the Ohio Constitution.

         {¶17} In her third assignment of error, Ms. Henry argues that the trial court erred by

finding her in contempt for failing to make a lump sum $20,000 payment that she owed to Mr.

Henry pursuant to the judgment entry. Specifically, Ms. Henry contends that the money she

owed to her former husband pursuant to the judgment entry was a “debt” under Section 15,

Article 1 of the Ohio Constitution, which provides that “[n]o person shall be imprisoned for debt
                                                 8


in any civil action, on mesne or final process, unless in cases of fraud.” Thus, Ms. Henry's

position is that the trial court's contempt order violated Section 15, Article I of the Ohio

Constitution. However, Ms. Henry failed to properly preserve this issue for appellate review.

       {¶18} Civ.R. 53(D)(3)(b)(ii) states that “[a]n objection to a magistrate's decision shall be

specific and state with particularity all grounds for objection.” Based on this requirement, we

have previously determined that an appellant forfeits appellate review of any issues not stated in

his or her objections to the magistrate's decision. See Adams v. Adams, 9th Dist. Wayne No.

13CA0022, 2014–Ohio–1327, ¶ 6 (“This Court has held that when a party fails to properly object

to a magistrate's decision in accordance with Civ. R. 53(D)(3), the party has forfeited the right to

assign those issues as error on appeal.”); John Soliday Fin. Group, L.L.C. v. Robart, 9th Dist.

Summit No. 24407, 2009–Ohio–2459, ¶ 15 (“Because [appellant] did not specifically object to

the findings in the magistrate's decision set forth in the first nine assignments of error, those

claims have been forfeited and may not be raised on appeal.”). Here, Ms. Henry did not raise the

constitutionality of the contempt order in her objections to the magistrate’s decision. Therefore,

she failed to preserve this issue for appellate review and we decline to address it. Bass-Fineberg

Leasing, Inc. v. Modern Auto Sales, Inc., 9th Dist. Medina No. 13CA0098-M, 2015-Ohio-46, ¶

24.

       {¶19} Ms. Henry’s third assignment of error is overruled.

                                    Assignment of Error IV

       The trial court erred in deciding the contempt motion when Ms. Henry’s
       previously filed motion for relief from judgment was pending.

       {¶20} In her fourth assignment of error, Ms. Henry argues that the trial court erred by

ruling on Mr. Henry’s contempt motion while her previously filed Civ.R. 60(B) motion for relief

from judgment was still pending. We disagree.
                                                  9


       {¶21} In support of her argument, Ms. Henry cites to Civ.R. 62(A), which states in part:

       In its discretion and on such conditions for the security of the adverse party as are
       proper, the court may stay the execution of any judgment or stay any proceedings
       to enforce judgment pending the disposition of a motion for a new trial, or a
       motion for relief from a judgment or order made pursuant to Rule 60[.]

(Emphasis added.) Without citing to any other authority, Ms. Henry asserts that “[d]ue process

and fairness obligated the [trial court] to first consider the issues raised in [her] motion for relief

before determining the subsequent contempt action.”

       {¶22} However, a Civ.R. 60(B) motion to vacate lies only from a “final judgment, order,

or proceeding[.]” Where the underlying order is not itself a final judgment, Civ.R. 60(B) is not a

proper procedural mechanism for relief and it cannot be used to convert an otherwise non-final

judgment into a final appealable order. Kalapodis v. Hall, 9th Dist. Summit No. 22386, 2005–

Ohio–2567, ¶ 10. “‘An order is a final appealable order if it affects a substantial right and in

effect determines the action and prevents a judgment.’” Price v. Klapp, 9th Dist. Summit No.

27343, 2014–Ohio–5644, ¶ 6, quoting, Yonkings v. Wilkinson, 86 Ohio St.3d 225, 229 (1999);

see also R.C. 2505.02(B)(1).

       {¶23} As noted above, neither the March 1, 2013 journal entry, nor the March 11, 2013

entry ordering spousal support constitutes a final appealable order. Provided that the March 1,

2013 entry was not final, Ms. Henry’s motion for relief from judgment was not a proper Civ.R.

60(B) motion and the trial court properly denied it.

       {¶24} Ms. Henry’s fourth assignment of error is overruled.

                                                 III.

       {¶25} Ms. Henry’s four assignments of error are overruled.              The judgment of the

Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                                  Judgment affirmed.
                                                10




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



WHITMORE, P. J.
CONCURS.

MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶26} I concur in the majority’s judgment.

       {¶27} Mr. Henry moved for contempt based upon an alleged violation of paragraph

three of the March 1, 2013 entry. The trial court found Ms. Henry in contempt for failing to pay

Mr. Henry money owed to him pursuant to that entry.
                                                11


       {¶28} The provision of the entry at issue states that, “[u]pon the closing of the sale of

the former marital residence * * * [Ms. Henry] shall pay to [Mr. Henry] as and for property

settlement the sum of Twenty Thousand Dollars ($20,000) regardless of the amount of net

proceeds received by [Ms. Henry].” There is no dispute that after the closing of the sale of the

marital home, Ms. Henry paid Mr. Henry only $2,000. Under the plain language of the March 1,

2013 entry, Ms. Henry was required to pay Mr. Henry $20,000. The language at issue from the

March 1, 2013 entry is clear and unambiguous and thus could be subject to a finding of

contempt. See Zemla v. Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829, ¶ 17.

       {¶29} Ms. Henry’s argument is that the March 1, 2013 entry was not an order of the

court and that the language of the March 1, 2013 entry is contradicted by language in the March

11, 2013 magistrate’s decision that was adopted by the trial court, which she views as the divorce

decree. Based upon the record, there is no basis upon which to conclude that the March 1, 2013

entry was not an order of the court. With respect to the latter argument, that is also without

merit. Given that the March 1, 2013 entry was not a final order, the entry was subject to

revision. See Simkanin v. Simkanin, 9th Dist. Summit No. 22719, 2006-Ohio-762, ¶ 7. However,

in reviewing the March 11, 2013 entries of the trial court and the magistrate, there is nothing that

suggests that either the magistrate or the trial court intended to alter any of the conclusions made

in the March 1, 2013 entry. Instead, it is clear that the March 11, 2013 entries were issued to

address the previously unresolved issue of spousal support. The only conclusion of law made by

the magistrate in the March 11, 2013 entry dealt with spousal support and the only independent

judgment made by the trial court in the March 11, 2011 entry also related solely to spousal

support and did not mention the property settlement. Thus, the March 11, 2013 entry was not the

final divorce decree either; notably it does not even purport to grant a divorce. Accordingly, Ms.
                                                 12


Henry’s argument that the language from the March 11, 2013 magistrate’s decision should be

controlling with respect to whether she should have been found in contempt is without merit. As

a result, I agree that Ms. Henry’s first assignment of error is properly overruled.

       {¶30} Ms. Henry maintains in her second assignment of error that the trial court’s

finding of contempt was against the manifest weight of the evidence because she did not have the

ability to pay the money. Because the inability to pay is a defense to a contempt proceeding, the

burden of proving it falls to Ms. Henry. See State ex rel. Cook v. Cook, 66 Ohio St. 566 (1902),

syllabus; see also Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, ¶ 20. After reviewing

the record, I agree that the trial court’s conclusion that it was possible for Ms. Henry to comply

with the March 1, 2103 entry was not against the manifest weight of the evidence.

       {¶31} With respect to Ms. Henry’s third assignment of error, asserting the finding of

contempt violated the Ohio Constitution, I agree that she forfeited this argument for purposes of

appeal by failing to object to the magistrate’s decision on that basis. Civ.R. 53(D)(3)(b)(iv).

Further, as she has not developed a plain error argument, I would overrule her assignment of

error on that basis. See Akron Children’s Hosp. v. Paluch, 9th Dist. Summit No. 27557, 2015-

Ohio-2375, ¶ 6.

       {¶32} With respect to Ms. Henry’s fourth assignment of error, I agree that it is also

properly overruled. Ms. Henry’s contention was that the trial court should have sua sponte

stayed the contempt proceedings while her “Civ.R. 60(B)” motion was pending pursuant to

Civ.R. 62(A). She appears to argue that a favorable ruling on her “Civ.R. 60(B)” motion would

have altered the course or necessity of the contempt proceedings. Given that the March 1, 2013

order was not final, Ms. Henry’s “Civ.R. 60(B)” motion was not actually a proper Civ.R. 60(B)

motion. See Civ.R. 60(B) (describing the motion as one seeking relief from a “final judgment”).
                                                 13


Thus, it is not clear that Civ.R. 62(A) would even be applicable to her situation. Further, the trial

court ultimately denied her motion for “Civ.R. 60(B)” relief and Ms. Henry has not explained

how she has been prejudiced by the failure of the trial court to stay the contempt proceedings in

light of her argument. See Civ.R. 61.

       {¶33} Therefore, I concur in the judgment of the majority.


APPEARANCES:

JOSEPH A. KACYON, Attorney at Law, for Appellant.

DAVID H. FERGUSON and LYNNE M. EARHART, Attorneys at Law, for Appellee.
