[Cite as Johns v. Johns, 2013-Ohio-557.]


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

BARBARA A. JOHNS                                   C.A. No.      26393

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
JOHN C. JOHNS                                      COURT OF COMMON PLEAS
                                                   COUNTY OF SUMMIT, OHIO
        Appellant                                  CASE No.   1979-12-4892

                                 DECISION AND JOURNAL ENTRY

Dated: February 20, 2013



        MOORE, Presiding Judge.

        {¶1} Defendant-Appellant, John C. Johns, M.D. (“Husband”), appeals from the March

28, 2012 judgment entry of the Summit County Court of Common Pleas. We affirm.

                                              I.

        {¶2} Husband and Barbara Johns (“Wife”) divorced after twenty-two years of marriage.

Pursuant to their separation agreement, Husband agreed to pay Wife spousal support in the

amount of $2,400 per month. In 2008, Husband stopped paying the full amount of spousal

support and Wife filed a motion for contempt. Husband then filed a motion to modify and/or

terminate spousal support.

        {¶3} In a 2009 order, a magistrate of the trial court (1) modified spousal support to

$1,600 per month, (2) found Husband in contempt, (3) sentenced Husband to one day in the

Summit County Jail or 40 hours of community service, unless he purged his contempt by paying

the spousal support arrearage by April 1, 2009, and (4) issued judgment in favor of wife in the
                                                2


amount of $14,059.31. Husband objected and the trial court overruled his objections, thus

adopting the magistrate’s decision. Husband timely appealed.

       {¶4} In Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, ¶ 19, this Court affirmed

the trial court’s finding of contempt. We also reversed, in part, and remanded in order for the

trial court to consider the Supreme Court of Ohio’s decision in Mandelbaum v. Mandelbaum,

121 Ohio St.3d 433, 2009-Ohio-1222, with regard to whether the modification was based upon a

substantial change in circumstances not contemplated at the time the parties entered into their

decree of divorce.

       {¶5} On remand, the trial court issued an order finding, among other things, that: (1) it

retained jurisdiction to modify spousal support, (2) Husband’s retirement, health problems and

the devaluation of his IRA are substantial changes in circumstance, and (3) the parties stipulated

that these changes in circumstance were not contemplated at the time of their divorce. In so

holding, the trial court modified spousal support to $1,600 per month. Further, the trial court

held Husband in contempt, sentenced him to one day in the Summit County Jail or 40 hours

community service if he fails to pay the arrearage by March 1, 2010, and granted judgment in

favor of Wife in the amount of $34,859.31.

       {¶6} Husband did not appeal this order.

       {¶7} In May of 2010, Wife filed several motions including one for execution of

sentence regarding the contempt. Husband then filed a second motion to reduce and/or terminate

spousal support, along with several motions to appear at the hearing telephonically due to his

failing health. Wife opposed Husband’s motion by filing a motion to require Husband to

personally appear in court.
                                                 3


       {¶8} After a purge hearing in September 2011, attended only by Wife, the magistrate

issued a decision extending Husband’s purge period to December 1, 2011, and ordering him to

personally appear one week later in order to establish whether the contempt had been purged.

The decision states that if Husband fails to appear at the hearing or purge his contempt, the trial

court shall issue a capias for his arrest and may impose sentence immediately. Husband objected

alleging that he was not given the opportunity to participate in the September hearing, and

attached an affidavit further detailing his financial situation. Because no record of the hearing

existed, the trial court remanded to the magistrate for further proceedings on December 8, 2011,

and ordered Husband to personally appear at the hearing.

       {¶9} Husband filed another motion to appear telephonically which was opposed by

Wife. The trial court denied Husband’s motion.

       {¶10} At the December purge hearing, Husband failed to appear. The magistrate found

that Husband paid $0 dollars toward his spousal support obligation since the 2009 contempt

finding and sentenced him to one day in the Summit County Jail. In addition, the magistrate

ordered Husband to appear on March 1, 2012, in order to serve his sentence. The magistrate also

dismissed all pending motions, including Husband’s motion to modify/terminate spousal support.

       {¶11} Husband objected on the basis that he should not have been ordered to personally

appear due to his physical limitations and inability to travel, and, as such, was unable to appear

in March to serve his sentence. The trial court overruled Husband’s objections, adopted the

magistrate’s decision, and ordered Husband to report to the Summit County Jail on April 30,

2012, for execution of sentence.
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        {¶12} Husband timely appealed and raises five assignments of error for our

consideration. For ease of discussion, we have combined and rearranged Husband’s assignments

of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED BY IMPOSING A SENTENCE FOR
        CONTEMPT WHEN THE PAST DUE SPOUSAL SUPPORT HAD BEEN
        REDUCED TO JUDGMENT.

                                ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED BY IMPOSING A PURGE CONDITION WHICH
        IS NOT SUFFICIENTLY CLEAR TO ALLOW [HUSBAND] TO OBEY. THE
        PURGE CONDITION IS THEREFORE UNREASONABLE AND
        IMPOSSIBLE FOR [HUSBAND] TO MEET.

        {¶13} In his first assignment of error, Husband argues that because his arrearage was

reduced to a lump sum in 2009, it became a civil debt and, therefore, imprisonment is precluded

under Article I, Section 15 of the Ohio Constitution. Further, in his third assignment of error,

Husband argues that the 2009 order is “unclear, ambiguous and subject to more than one

interpretation,” because it does not specify the amount of arrearage that he was required to pay in

order to purge the contempt.

        {¶14} It is well-settled that “[r]es judicata bars the assertion of claims against a valid,

final judgment * * * that have been raised or could have been raised on appeal.” State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175

(1967), paragraph nine of the syllabus. Here, Husband could have raised these claims in his

appeal from the first 2009 order. In addition, assuming he was not already barred by res judicata,

Husband could have raised these claims in the subsequent order which resulted from this Court’s
                                                  5


remand regarding Mandelbaum. However, Husband failed to do so. As such, Husband’s claims

are now barred by res judicata and we decline to further address them.

       {¶15} Husband’s first and third assignments of error are overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY MODIFYING AND THEREBY
       ENHANCING THE SENTENCE ORIGINALLY IMPOSED FOR CONTEMPT.

       {¶16} In his second assignment of error, Husband argues that the trial court erred by

sentencing him to one day in the Summit County Jail instead of giving him the option of either

one day in the Summit County Jail, or 40 hours of community service, as set forth in the 2009

judgment entry.

       {¶17} We note that Husband failed to specifically raise this argument in his objections to

the magistrate’s decision. Pursuant to Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain

error, a party shall not assign as error on appeal the court’s adoption of any factual finding or

legal conclusion * * * unless the party has objected to that finding or conclusion as required by

Civ.R. 53(D)(3)(b).” In his objections to the magistrate’s decision, Husband generally objected

to the entire decision. However, he failed to specifically argue that his sentence was enhanced

by removing the option of community service. See Civ. R. 53(D)(3)(b)(ii) (requiring objections

to “be specific and state with particularity all grounds for objection”). Therefore, Husband

forfeited this argument on appeal unless he can establish plain error.

       {¶18} “In appeals of civil cases, the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error * * *

seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79

Ohio St.3d 116 (1997), syllabus. We conclude that the trial court did not commit plain error in
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sentencing Husband to serve one day in the Summit County Jail. The record indicates that

possible jail time was always part of Husband’s original sentence, and nowhere in the record did

the trial court foreclose its discretion to decide whether Husband would go to jail or participate in

community service.

       {¶19} Husband’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY DISMISSING [HUSBAND’S] MOTION TO
       MODIFY OR TERMINATE SPOUSAL SUPPORT.

       {¶20} In his fourth assignment of error, Husband argues that the trial court erred in

dismissing his motion to modify/terminate spousal support without first considering his

deposition testimony in lieu of personally appearing at the hearing.

       {¶21} “This Court reviews a spousal support award under an abuse of discretion

standard.” Hirt v. Hirt, 9th Dist. No. 03CA0110-M, 2004-Ohio-4318, ¶ 8.                An abuse of

discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable.

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

standard, an appellate court may not substitute its judgment for that of the trial court. Pons v.

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶22} Here, the trial court ordered Husband to personally appear at the purge/motions

hearing, but Husband failed to abide by the court’s order. Further, the record shows that the trial

court continued this hearing on numerous occasions in order to accommodate both parties and

allow Husband extra time to purge his contempt. Because Husband was not present to argue the

merits of his motion to modify/terminate spousal support, when ordered to do so by the court, we

cannot say that the trial court abused its discretion in dismissing the motion at that time.
                                                7


       {¶23} Husband’s fourth assignment of error is overruled.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED BY FAILING TO CONDUCT                                      AN
       INDEPENDENT REVIEW OF THE MAGISTRATE’S DECISION.

       {¶24} In his fifth assignment of error, Husband argues that the trial court did not comply

with Civ.R. 53(D)(4)(d), which states that:


       If one or more objections to a magistrate’s decision are timely filed, the court
       shall rule on those objections. In ruling on objections, the court shall undertake an
       independent review as to the objected matters to ascertain that the magistrate has
       properly determined the factual issues and appropriately applied the law. Before
       so ruling, the court may hear additional evidence but may refuse to do so unless
       the objecting party demonstrates that the party could not, with reasonable
       diligence, have produced that evidence for consideration by the magistrate.

Husband alleges that the trial court erred by failing to conduct an independent review of the

magistrate’s decision.   Further Husband contends that the trial court merely recited the

procedural history of the case, and did not indicate whether it agreed with the magistrate’s

finding regarding contempt. We disagree.

       {¶25} First, in its March 28, 2012 judgment entry, the trial court states that it reviewed

the pleadings, transcripts of hearing, and other documents in the file. Second, the trial court

addressed and analyzed each of Husband’s objections to the magistrate’s decision and provided

its reasoning in overruling each objection. Third, by imposing sentence, the trial court clearly

agreed with the magistrate’s finding that Husband failed to purge his contempt.

       {¶26} Husband’s fifth assignment of error is overruled.

                                               III.

       {¶27} In overruling all of Husband’s assignments of error, the judgment of the Summit

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

                                                                               Judgment affirmed.
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       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.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

SUSAN K. PRITCHARD, Attorney at Law, for Appellant.

RANDAL A. LOWRY, Attorney at Law, for Appellee.
