[Cite as McConnell v. McConnell, 2013-Ohio-694.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                     WASHINGTON COUNTY

KAREN McCONNELL,               :
                               :
     Plaintiff-Appellant,      : Case No. 11CA7
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
RANDY McCONNELL,               : ENTRY
                               :
     Defendant-Appellee.       : Released: 02/07/13
_____________________________________________________________
                          APPEARANCES:

Karen McConnell, Belpre, Ohio, Appellant, pro se.

Rolf Baumgartel, Marietta, Ohio, for Appellee.1
_____________________________________________________________

McFarland, P. J.

           {¶1} Appellant, Karen McConnell, appeals the judgment of the

Washington County Court of Common Pleas, finding her in contempt for

failure to follow the terms of the separation agreement in relation to real

estate owned by herself and Appellee, Randy McConnell, as required by the

parties’ divorce decree. On appeal, Appellant contends that 1) the trial court

erred and abused its discretion by imposing conditions that are unreasonable,

and that make compliance impossible; and 2) she was denied her Sixth

Amendment right to the effective assistance of counsel.

1
    Appellee has elected not to file a brief on appeal.
Washington App. No. 11CA7                                                        2


      {¶2} In light of our finding that Appellant failed to raise impossibility

of compliance as a defense at the trial court level, we will not consider it for

the first time on appeal. As such, Appellant’s first assignment of error is

overruled. With regard to Appellant’s second assignment of error, even if

Appellant’s trial counsel had called the witnesses and raised the issues

Appellant mentioned, we cannot conclude that it would have changed the

outcome of the trial. Thus, we cannot conclude that Appellant was deprived

of the effective assistance of counsel and Appellant’s second assignment of

error is, therefore, overruled. Accordingly, having overruled both of

Appellant’s assignments of error, the decision of the trial court is affirmed.

                                    FACTS

      {¶3} The parties were divorced on December 30, 2002. The divorce

decree provided that the parties had entered into an oral separation and

property settlement agreement, which was recited into the decree. With

regard to the real estate owned by the parties, the decree provided, in

pertinent part, as follows:

      “The parties own real property located at 203 Oak Drive, Little

      Hocking, Ohio. Wife shall have exclusive right of user for two

      (2) years beginning January 1, 2003. Husband shall be

      responsible for payment of the mortgage, taxes and insurance
Washington App. No. 11CA7                                                      3


      on said real property during that period of time. The payment

      shall be deemed “In the Nature of Spousal Support” and

      nondischargeable in any bankruptcy proceeding. At the

      conclusion of the two (2) year period, Wife shall have the

      option to buy out Husband at a price to be agreed upon at that

      time or to elect that the property be sold with all net proceeds

      after customary expenses of sale and a credit for principal

      reduction to Husband being divided equally. * * * Major

      repairs, if required, shall be the responsibility of Husband who

      shall receive a credit for one-half (1/2) of those repairs at the

      time of the sale or buy out.”

On October 7, 2009, Appellee filed a motion to show cause as to why

Appellant should not be held in contempt for her willful failure to abide by

the prior court order. In his memorandum in support of the motion,

Appellee claimed that despite the terms of the separation agreement, he had

permitted Appellant and the parties’ minor child to live in the marital

residence until the child turned eighteen, which occurred on January 2, 2007.

Appellee further claimed that since that time Appellant had refused to buy

him out, or to place the house for sale.
Washington App. No. 11CA7                                                                                   4


         {¶4} Appellant requested counsel be appointed, and after going

through several court appointed attorneys, the matter proceeded to a hearing

on the issue of contempt on January 21, 2011. Appellant, Appellee, and

attorney Rustin Funk testified at the hearing. Appellant testified that after

the parties were divorced that they reconciled and lived together at the

marital residence. She also testified that subsequent to the parties’ divorce

and during the time that she and Appellee were living together, she executed

a quitclaim deed to Appellee on February 17, 2006. She testified that

Appellee was present at attorney Rustin Funk’s office, the attorney who

prepared the deed, and that it was signed pursuant to an arrangement

between Appellee and Appellant’s parents.2 Appellee testified that he didn’t

remember going to Funk’s office, did not sign the deed and never intended

to give Appellant a life estate in the marital property.

         {¶5} Attorney Rustin Funk also testified at the hearing regarding his

preparation of the quitclaim deed. His testimony will be set forth more fully,

infra, in our consideration of Appellant’s second assignment of error. After

hearing testimony, the trial court took the matter under advisement. The trial

court subsequently issued a Ruling on Contempt Motion on February 16,

2011, finding Appellant in contempt. A journal entry was then filed on
2
 Although Appellant’s testimony provided little detail regarding the substance of the deed, a review of the
deed indicates that Appellant, by executing the deed, was attempting to transfer her one-half interest in the
property to Appellee, while reserving a life estate for herself.
Washington App. No. 11CA7                                                        5


March 9, 2011, finding Appellant in contempt, imposing three days in the

Washington County jail and giving Appellant an opportunity to purge her

contempt, which included cooperation in the listing of the house for sale. It

is from this journal entry that Appellant now brings her appeal, assigning the

following assignments of error for our review.

                        ASSIGNMENTS OF ERROR

“I. THE COURT OF COMMON PLEAS ERRED THROUGH ABUSING
    ITS DISCRETION BY IMPOSING CONDITIONS THAT ARE
    UNREASONABLE THAT MAKES COMPLIANCE IMPOSSIBLE.

II. APPELLANT KAREN S. MCCONNELL WAS DENIED HER SIXTH
    AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF
    COUNSEL. ”

                        ASSIGNMENT OF ERROR I

      {¶6} In her first assignment of error, Appellant contends that the trial

court abused its discretion by imposing conditions that are unreasonable, and

that make compliance impossible. Specifically, Appellant argues that

current major repairs and mold remediation are needed on the marital

residence before it can be placed on the market for sale. She also argues that

as per the divorce decree, major repairs are Appellee’s responsibility. She

further argues that the trial court abused its discretion when it held her in

contempt, claiming that compliance with the order is impossible in light of

the repairs that are needed.
Washington App. No. 11CA7                                                       6


      {¶7} “ ‘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 an officer[.]’ ”

Townsend v. Townsend, 4th Dist. No. 08CA9, 2008-Ohio-6701, (Dec. 5,

2008), ¶ 23, quoting R.C. 2705.02(A). “ ‘It is no defense to a finding of

civil contempt that a party acted in good faith or upon the advice of counsel.’

” Townsend at ¶ 23, quoting State ex rel. Adkins v. Sobb, 39 Ohio St.3d 34,

36, 528 N.E.2d 1247, (1988).

      {¶8} As noted by the Supreme Court of Ohio in Cramer v. Petrie, 70

Ohio St.3d 131, 133, 637 N.E.2d 882, (1994), the law of contempt is

intended to uphold and ensure the effective administration of justice, secure

the dignity of the court, and to affirm the supremacy of law. A court

possesses inherent and statutory authority to compel compliance with its

lawfully issued orders. State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 252,

648 N.E.2d 1355, (1995); R.C. 2705.02(A).

      {¶9} The decision of whether to find an individual in contempt of

court rests in the sound discretion of the trial court and will not be

overturned on appeal absent an abuse of that discretion. Townsend at ¶ 25,

citing State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386, (1980),

paragraph one of the syllabus. An abuse of discretion connotes a decision by
Washington App. No. 11CA7                                                         7


the trial court that is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144, (1980).

      {¶10} As we noted in Townsend, contempt may be classified as either

civil or criminal depending on the court's underlying rationale and the

penalty imposed. Townsend at ¶ 26, citing Denovchek v. Bd. of Trumbull

Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362, (1988). While civil

contempt orders seek to coerce compliance with the court's orders, criminal

orders punish the party who offends the court. Id.; Brown v. Executive 200,

Inc., 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610, (1980). Further,

contempt proceedings in domestic relations matters are normally civil in

nature because their purpose is to coerce or encourage future compliance

with the court’s orders. Fidler v. Fidler, Tenth Dist. No. 08AP-284, 2008-

Ohio-4688, (Sept. 16, 2008), ¶ 11 (Internal citations omitted).

      {¶11} It has been held that a finding of civil contempt does not require

proof of purposeful, willing, or intentional violation of a trial court's prior

order. Pugh v. Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085, (1984).

Further, a sanction for civil contempt must allow the offender an opportunity

to purge himself or herself of the contempt. Townsend at ¶ 27. In the case

sub judice, the court found Appellant in contempt and sentenced her to three
Washington App. No. 11CA7                                                          8


days in jail, unless she purged her contempt. Therefore, the trial court's order

is classified as civil contempt.

      {¶12} The burden of proof in a civil contempt action is clear and

convincing evidence. Townsend at ¶ 29, citing Brown at 253. “Clear and

convincing evidence” is evidence that will form a firm belief in the mind of

the trier of fact as to the facts sought to be established. Cincinnati Bar Assn.

v. Massengale, 58 Ohio St.3d 121, 122, 568 N.E.2d 1222, (1991). “Clear and

convincing evidence” is considered a higher degree of proof than a

“preponderance of the evidence,” the standard generally used in civil cases;

“clear and convincing evidence” is a less stringent requirement than the

“beyond a reasonable doubt” standard used in criminal proceedings. Id.

Appellate courts will reverse a trial court's finding decided under the “clear

and convincing evidence” standard only if it is not supported by competent,

credible evidence. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54,

(1990).

      {¶13} Importantly, “ ‘ [t]he impossibility of performance of a court

order, absent fraud or sharp practice, is recognized as a viable defense in a

contempt proceeding.’ ” Townsend at ¶ 30, citing Romans v. Romans, Ninth

Dist. No. 23181, 2006-Ohio-6554, (Dec. 13, 2006), ¶ 9, citing Wysocki v.

Wysocki (1955), 113 N.E.2d 686, 689 (1955); see also Fidler v. Fidler,
Washington App. No. 11CA7                                                          9


supra, at ¶ 11 (“Impossibility of compliance is an affirmative defense for

which the alleged contemnor has the burden of proof.”) (Internal citations

omitted).

      {¶14} Before we reach the merits of Appellant’s first assignment of

error, we note that Appellant failed to raise impossibility of compliance with

the court order as a defense in the underlying contempt proceeding. It is a

cardinal rule of appellate review that a party cannot assert new legal theories

for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d

41, 43, 322 N.E.2d 629, (1975). Thus, a reviewing court will not consider

issues which an appellant failed to raise initially in the trial court. Lippy v.

Society Natl. Bank, 88 Ohio App.3d 33, 40, 623 N.E.2d 108, (11th Dist.

1993).

      {¶15} Appellant did not raise the defense of impossibility of

compliance during the contempt hearing. In fact, nothing was mentioned at

all during the contempt hearing regarding damage to the house or need to do

“major repairs” in order to be able to list the house for sale. While the

record does contain multiple pro so filings by Appellant referencing damage

to the house and the need for mold remediation, none of these documents

were filed until after the trial court’s contempt finding was issued. Because

Appellant failed to raise the defense of impossibility of compliance at the
Washington App. No. 11CA7                                                      10


trial court level, we decline to address it for the first time on appeal. As

such, Appellant’s first assignment of error is overruled.

                        ASSIGNMENT OF ERROR II

      {¶16} In her second assignment of error, Appellant contends that she

was denied her Sixth Amendment right to the effective assistance of counsel.

We initially note that Appellant improperly classifies her ineffective

assistance of counsel argument as a Sixth Amendment issue. “[T]he Sixth

Amendment does not govern civil cases.” Turner v. Rogers, -- U.S. --, 131

S.Ct. 2507, 2518 (2011). Instead, “where civil contempt is at issue, the

Fourteenth Amendment’s Due Process Clause allows a State to provide

fewer procedural protections than in a criminal case.” Id. Thus, in the

present case, we would have to find the right to counsel under the Due

Process Clauses of the United States Constitutions. Id.; see also Liming v.

Damos, -- Ohio St.3d --, 2012-Ohio-4783, -- N.E.2d --, ¶ 33 (equating “the

Due Process Clauses of the Ohio and United States Constitutions” in a right-

to-counsel analysis”; In re Hue, 62 Ohio St.2d 227, 230, 405 N.

E.2d 255 (1980) (stating that “the due course of law” provision of the Ohio

Constitution is virtually the same as the “due process” clause of the

Fourteenth Amendment to the United States Constitution.”).
Washington App. No. 11CA7                                                     11


      {¶17} “[T[here can be no separate constitutional right to effective

assistance of counsel when the basic right to counsel has not attached.”

State v. Meeks, 11th Dist. No. 2011-L-066, 2012-Ohio-4098, ¶ 52.

Normally, “a party in a civil action has no generalized right to counsel.”

Dantzig v. Biron, 4th Dist. No. 07CA1, 2008-Ohio-209, (Jan. 18, 2008), ¶ 9,

citing In re Estate of Perry, 4th Dist. No. 04CA2972, 2005-Ohio-3462, (June

29 2005), ¶ 6. Thus, in Dantzig we reasoned that “[a] reversal based upon

ineffective assistance of counsel does not exist when there is no right to

counsel.” Dantzig at ¶ 9, citing In re Estate of Perry at ¶ 7. Further, the

United States Supreme Court has recently held that “the Due Process Clause

does not always require the provision of counsel in civil proceedings where

incarceration is threatened.” Turner v. Rogers, supra, at 2518.

      {¶18} A review of the record reveals that Appellant requested and the

trial court appointed counsel for the underlying contempt proceedings.

Further, the parties herein do not raise as error on appeal any argument

related to the trial court’s decision to provide court-appointed counsel in the

proceedings below. As such, we will address Appellant’s second

assignment of error on the merits. In doing so, we make no judgment

regarding whether Appellant was entitled to appointed counsel below.
Washington App. No. 11CA7                                                     12


      {¶19} To prevail on a claim of ineffective assistance of counsel,

Appellant must show that: 1) her counsel's performance was deficient, and

2) the deficient performance prejudiced her defense so as to deprive her of a

fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854

N.E.2d 1038, at ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, (1984). To establish deficient performance, an appellant

must show that trial counsel's performance fell below an objective level of

reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, 848 N.E.2d 810, at ¶ 95. To establish prejudice, an appellant must

show a reasonable probability exists that, but for the alleged errors, the result

of the proceeding would have been different. Id. Appellant has the burden

of proof on the issue of counsel's ineffectiveness because a properly licensed

attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-

Ohio-6679, 860 N.E.2d 77, at ¶ 62.

      {¶20} Here, Appellant argues that she was denied the effective

assistance of counsel because additional witnesses, namely her parents, were

not called to testify regarding the preparation of the quitclaim deed.

Appellant argues that she was further prejudiced by the failure to call her

parents as witnesses, in that their testimony would have allowed her to

establish the affirmative defense of payment. Specifically, Appellant argues
Washington App. No. 11CA7                                                       13


that her act of signing over her interest in the marital property constituted

payment for the life estate. Finally, Appellant claims her counsel should

have questioned attorney Rustin Funk on redirect regarding Funk’s

“repeated assurances about the legitimacy of the Quit-Claim Deed and the

life estate therein.”

       {¶21} A review of the record reveals that although Appellant’s trial

counsel did not call Appellant’s parents to testify, Appellant, Appellee, and

Rustin Funk, the attorney who prepared the deed all testified. Appellant’s

parents were not parties to the deed, which purported to grant Appellant’s

one-half interest in the property to Appellee, while reserving a life estate in

the property for herself. As the language of the deed speaks for itself, and

Appellant’s parents were not parties to the deed, we fail to see how

Appellant’s parents’ testimony would have made a difference in the outcome

of the case. Thus, we reject this portion of Appellant’s argument.

       {¶22} We also reject Appellant’s argument that by having her parents

testify, she would have been able to establish an affirmative defense of

payment. Again, Appellant’s parents were not named in the deed and have

never held any interest in the subject property. We fail to see how any

testimony they might have offered would have added anything to the
Washington App. No. 11CA7                                                   14


language of the deed or the testimony provided by Appellant, Appellee and

Funk, that would have established payment as a defense.

      {¶22} Further, in response to Appellant’s overarching argument that

the parties entered into an agreement to change the provisions of the

separation agreement, the trial court considered the quit claim deed in depth

in its Ruling on Contempt Motion filed on February 16, 2011.

      {¶23} Noting that Appellee’s signature did not appear in the deed, the

trial court’s assessment of the deed was as follows:

             “Did the deed itself effect the Husband’s interest in the

      real estate so as to restrict his right to enforce the agreement?

      The effect of the deed was to transfer the Wife’s half interest to

      the Husband, reserving to the Wife a life estate in her one-half

      interest in the property. After the deed, the Wife owned less of

      her one-half interest of the property. She transferred the

      remainder of her one-half interest and retained a life estate in

      her one-half. Through the deed she did not obtain a life estate

      in the Husband’s undivided one-half interest.

             After the deed, the Husband still owned his undivided

      one-half interest which he owned before the deed. In addition,

      the Husband owned the Wife’s one-half interest subject to her
Washington App. No. 11CA7                                                      15


      life estate. The Husband did not grant the wife a life estate in

      his half interest. To have that occur, the Husband would have

      had to join in the deed as a grantor.”

Based upon this reasoning, the trial court concluded that “the deed itself,

even if made with the Husband’s knowledge and consent, does not restrict

the Husband’s right to effectuate the separation agreement or otherwise

effect his ownership of his original one-half of the property.” The court

further concluded that “[t]he deed does not change anything that would

require a change in terms of the separation agreement.”

      {¶24} We believe that the reasoning of the trial court is sound with

respect to the effect of the deed and purported attempt to grant Appellant a

life estate. Rustin Funk even testified to that effect as follows:

      “Q.    * * * Is there any reason why you didn’t have Mr. – have

             a signature line for Mr. McConnell and then have him

             sign it?

      A.     I was in a hurry. If they had – I – I’ve told her, if I – I’ll

             be honest with you. If I had to do it over again – well,

             first of all, I – I have since said, they should have done an

             amendment to the separation agreement and filed it of

             record. I mean, just instead of doing stuff like this. If I
Washington App. No. 11CA7                                                      16


             had to do it over again, I would have prepared a

             quitclaim deed from the two of them to her granting her a

             life estate and reserve – and the remainder to him, so that

             way, I would have made it so she had exclusive

             possession.”

Simply put, the quitclaim deed which purported to grant Appellant a life

estate did not accomplish what Appellant had intended.

      {¶25} By executing the deed, Appellant essentially reduced her

interest in the property from an undivided one-half interest, to only a life

estate in her half-interest. Thus, Appellant ended up with less than what she

began with. Payment or no payment, the purported grant of a life estate

certainly did not vest her with any interest that would override her duty

under the separation agreement to comply with listing the house for sale. As

such, we cannot conclude that the trial court abused its discretion in finding

the deed did not alter Appellee’s rights to effectuate the separation

agreement. In light of the foregoing, we fail to see how having Appellant’s

parents testify would have established the defense of payment and, or how

payment, even if established, would have changed the outcome of the trial.

As such, we reject this portion of Appellant’s argument.
Washington App. No. 11CA7                                                      17


      {¶26} Finally, we consider Appellant’s claim that her counsel should

have questioned attorney Rustin Funk on redirect regarding Funk’s

“repeated assurances about the legitimacy of the Quit-Claim Deed and the

life estate therein.” In particular, Appellant argues that had she not believed

the quitclaim deed was legitimate, based upon Funk’s repeated assurances,

that she would have vacated the residence years ago and would not have

faced the contempt charge. However, as set forth above, “ ‘[i]t is no defense

to a finding of civil contempt that a party acted in good faith or upon the

advice of counsel.’ ” Townsend, supra, at ¶ 23, quoting State ex rel. Adkins

v. Sobb at 36.

      {¶27} Thus, even had her trial counsel questioned Funk regarding his

alleged assurances and Funk had admitted to them, because good faith

reliance upon advice of counsel is not a defense to contempt we cannot

conclude that trial counsel’s failure to pursue this line of questioning

prejudiced Appellant in any way or changed the outcome of the trial.

Therefore, we reject this portion of Appellant’s assignment of error as well.

Having rejected all of Appellant’s arguments claiming ineffective assistance

of counsel, Appellant’s second assignment of error is overruled.

Accordingly, the decision of the trial court finding Appellant in contempt is

affirmed.
Washington App. No. 11CA7                   18


                            JUDGMENT AFFIRMED.
Washington App. No. 11CA7                                                      19


                            JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.:   Concurs in Judgment and Opinion.
Abele, J.:   Concurs in Judgment and Opinion as to Assignment of Error I;
             Concurs in Judgment Only as to Assignment of Error II.


                            For the Court,

                            BY: _________________________
                                Matthew W. McFarland
                                Presiding Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
