[Cite as Kolano v. Vega, 2016-Ohio-356.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
KEVIN KOLANO                                  :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2015 AP 06 0029
ALICIA VEGA FKA KOLANO                        :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Tuscarawas County
                                                  Court of Common Pleas, Case No. 2011
                                                  TM 03 0097

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           February 1, 2016


APPEARANCES:

For Defendant-Appellee                            For Plaintiff-Appellant

MICHAEL JOHNSON                                   PAUL KELLEY
117 S. Broadway St.                               6088 St. Rt. 212
Box 1007                                          Somerdale, OH 44678
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015AP0029                                                      2

Gwin, P.J.

       {¶1}   Appellant appeals the May 29, 2015 judgment entry of the Tuscarawas

County Court of Common Pleas overruling appellant’s objections to the May 1, 2015

magistrate’s decision.

                                    Facts & Procedural History

       {¶2}   Appellant Alicia Kolano and appellee Kevin Kolano were divorced via

judgment entry in 2013. In January of 2014, appellee filed a post-decree motion for

contempt based upon appellant’s failure to abide by the orders set forth in the final divorce

decree. The magistrate conducted an oral hearing on the motion on February 24, 2014.

       {¶3}   On March 3, 2014, the magistrate found appellant in contempt.              The

magistrate sentenced her to thirty (30) days in jail, but provided her with an opportunity

to purge the contempt by: placing appellee’s personal property in a storage rental unit

and providing appellee with the key to the unit; reimbursing appellee for the payments he

made toward the tax obligation; and paying all of the attorney fees appellee incurred in

association with the tax liability as well as the prosecution of the contempt motion.

       {¶4}   Appellant filed timely objections to the magistrate’s decision. On June 13,

2014, the trial court sustained, in part, and overruled, in part, appellant’s objections. The

trial court found appellant in contempt for failing to hold appellee harmless on the tax liens

as ordered and sentenced her to thirty (30) days in the Tuscarawas County Justice

Center.   The trial court noted the sentence would be suspended upon appellant’s

compliance with the following purge conditions: reimburse appellee for all payments he

made towards the tax obligation, specifically the amount of $2,275, plus the expense of

his tax attorney in the amount of $539.59; make immediate payment arrangements with
Tuscarawas County, Case No. 2015AP0029                                                       3


all tax agencies involved and maintain payments pursuant to these payment

arrangements; and pay attorney fees of $887.75.

       {¶5}     Appellant filed an appeal from the June 13, 2014 judgment entry and argued

the trial court abused its discretion: in overruling her objection to the magistrate’s decision

finding her in contempt for failing to hold appellee harmless on the tax liens as she did

not have the means to pay those obligations (inability to pay); in ordering her to reimburse

$2,275.00 to appellee for the payments he made towards the tax obligation, $539.59 for

the expenses of appellee’s tax attorney, and $887.75 in attorney fees for the prosecution

of the contempt motion as the evidence established her inability to pay; and in failing to

review its prior orders when it became aware the prior decisions lacked substantial,

important, and material facts, which resulted in a violation of appellant’s due process

rights. The trial court ordered a motion for stay be granted effective upon the posting of

a supersedeas bond in the amount of $3,703.34. No supersedeas bond was deposited

by appellant.

       {¶6}     In Kolano v. Kolano, 5th Dist. Tuscarawas No. 2014AP060026, 2015-Ohio-

1369, decided in April 2, 2015, this Court affirmed the trial court’s decision. We found the

trial court did not abuse its discretion in holding appellant in contempt; did not abuse its

discretion in ordering the purge conditions as listed above despite appellant’s claim of

inability to pay; and appellant was not denied due process. Appellant did not appeal this

Court’s decision to the Ohio Supreme Court.

       {¶7}     On April 6, 2015, appellee filed a motion to impose sentence.             The

magistrate conducted a hearing on April 27, 2015. Appellee’s attorney sought to impose

the sentence, arguing the purge conditions were not met by appellant. Appellant testified
Tuscarawas County, Case No. 2015AP0029                                                    4


her non-compliance was not intentional; she now has a job making $10 per hour; and she

does not have the ability to pay the amounts listed in the purge conditions. When the

magistrate inquired whether appellant could serve time on the week-ends so that she

could keep working, appellant responded, “That would be fine. They, they allow me to

work on Saturday and Sunday also. They’ve been giving me overtime so it’s – that’s fine.”

On cross-examination, appellant stated she has not paid any amount to appellee under

the court orders.

       {¶8}   The magistrate issued a decision May 1, 2015, noting that this Court

affirmed the finding of the contempt and the purge conditions. The magistrate found

appellant did not comply with the purge conditions; thus, the magistrate ordered appellant

to report to the Tuscarawas County Justice Center to complete her thirty (30) day

sentence. The magistrate noted since appellant was working during the week, she should

serve this sentence on the week-ends until her time is served. The magistrate did not

find it reasonable for appellant to assert she cannot afford to pay anything since she is

working full-time.

       {¶9}   Appellant filed objections to the magistrate’s decision on May 13, 2015.

Appellant argued she is only earning $10 per hour, not $14 as listed by the magistrate.

Further, appellant argued it was not reasonable for the magistrate to reject her defense

of inability to pay. Appellant sought to introduce new evidence to the trial court regarding

her employment and the requirement that she work week-ends to meet her quota.

       {¶10} The trial court issued a judgment entry on May 29, 2015. The trial court

noted it reviewed the electronic audio recording of the April 27th hearing. The trial court

overruled appellant’s motion to introduce new evidence, stating that the evidence
Tuscarawas County, Case No. 2015AP0029                                                    5


appellant seeks to present is not related to whether she complied with the June 2014

judgment entry and is irrelevant to whether the court should impose sentence. The trial

court found appellant has been given ample opportunity to comply with the court’s orders

and has failed to do so. The trial court did sustain appellant’s objection as to the finding

that she made $14 per hour and found she made $10 per hour. The trial court adopted

the remainder of the magistrate’s decision as order of the court and ordered appellant to

report to the Tuscarawas County Jail each week-end until her thirty (30) days sentence

is served. The trial court further ordered that, upon full compliance with purge conditions,

appellant’s counsel may file a properly supported motion with the court, requesting that

the court cancel any remaining jail time not yet served.

       {¶11} Appellant appeals the May 29, 2015 judgment entry of the Tuscarawas

County Court of Common Pleas and assigns the following as error:

       {¶12} “I. THE TRIAL COURT ERRED ON MATTERS OF LAW BY IMPOSING A

JAIL SANCTION WITHOUT ORDERING VIABLE PURGE CONDITIONS AS REQUIRED

BY LAW FOR ALL CIVIL CONTEMPT SANCTIONS.

       {¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO

HEAR APPELLANT’S ADDITIONAL EVIDENCE THAT WITH ALL DUE DILIGENCE

COULD NOT HAVE BEEN PRESENTED UNTIL SHORTLY AFTER THE MAGISTRATE

RENDERED HER DECISION.

       {¶14} “III. IN THE EVENT THE “PURGE CONDITIONS” ARE SOMEHOW

FOUND TO HAVE BEEN MEANINGFULLY OFFERED AND THUS POSSIBLE TO

COMPLETE TO AVOID SERVING ANY INCARCERATION IN FINDING APPELLANT

CAPABLE, THE TRIAL COURT NONETHELESS ABUSED ITS DISCRETION IN
Tuscarawas County, Case No. 2015AP0029                                                     6


FINDING APPELLANT CAPABLE, THOUGH WILLFULLY AVOIDING, OF PAYING

THEM IN FULL TO THUS PURGE HERSELF OF THE CONTEMPT.”

                                                 I.

       {¶15} Appellant first argues the trial court erred by imposing a jail sanction without

viable purge conditions.

       {¶16} Appellant contends we should review this assignment of error de novo. We

disagree. It is well-established that a reviewing court must uphold a trial court’s decision

in a contempt proceeding absent a showing that the court abused its discretion. State ex

rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). Further, an appellate

court reviews the punishment imposed for contempt under an abuse of discretion

standard. Mosier v. Mosier, 5th Dist. Richland No. 2008 CA 0103, 2009-Ohio-1195. An

abuse of discretion connotes a judgment that is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶17} Appellant contends that the April 2015 hearing was a “new” hearing and

thus she should have a “new” opportunity to purge. We disagree. The question of

contempt is decided at a contempt hearing, where an alleged contemnor has the

opportunity to defend against the contempt charges and otherwise object to or appeal

from a finding of contempt and any purge conditions. Liming v. Damos, 133 Ohio St.3d

509, 2012-Ohio-4783, 979 N.E.2d 297.

       {¶18} In this case, the trial court gave appellant viable purge conditions in 2014

by which to avoid the jail sentence. Appellant had the opportunity to defend against the

contempt charges and purge conditions at hearing in February of 2014. Appellant had

the opportunity to, and did, appeal from the June 2014 judgment entry finding her in
Tuscarawas County, Case No. 2015AP0029                                                      7


contempt and establishing purge conditions. In the previous case before this Court,

appellant argued the trial court abused its discretion in finding her in contempt; in ordering

the purge conditions; and in denying her due process. In Kolano v. Kolano, 5th Dist.

Tuscarawas No. 2014AP060026, 2015-Ohio-1369, this Court affirmed the trial court’s

decision regarding the finding of contempt and the purge conditions established.

       {¶19} The April 2015 hearing in this case was not a “new” hearing as appellant

contends. Rather, the hearing was on appellee’s motion to impose sentence. This

hearing was not a new contempt proceeding but the conclusion of the originating

contempt proceeding because its purpose was to determine whether the contemnor had

satisfied the purge conditions. Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783,

979 N.E.2d 297. “If the conditions are unfulfilled, the court is entitled to enforce the

sentence already imposed, the sanction that could have been avoided by the contemnor’s

compliance.” Id. The jail sentence was not a new sentence or a new punishment.

       {¶20} Once the trial court found appellant in contempt, set the purge conditions,

and the contempt and purge conditions were affirmed by this Court, the burden is on

appellant to show that she complied with the purge conditions to prevent the imposition

of the suspended sentence. State v. Mendez, 8th Dist. Cuyahoga No. 100236, 2014-

Ohio-1083. At the April 27, 2015 hearing, appellant testified that she has not paid any

amount to appellee under the court orders. Further, R.C. 2705.09 provides that an appeal

proceeding “shall not suspend execution of the order or judgment until the person in

contempt files a bond in the court rendering the judgment, or in the court or before the

officer making the order * * *.” In this case, the trial court granted appellant’s stay in the

first appeal conditioned on her payment of the supersedeas bond. However, the bond
Tuscarawas County, Case No. 2015AP0029                                                    8


was never deposited and thus no stay of the purge conditions existed during the first

appeal.

       {¶21} The only remaining issue at the April 27, 2015 hearing was whether

appellant fully complied with the purge conditions issued in June of 2014. She did not.

Accordingly, the trial court did not abuse its discretion when it ordered appellant to serve

the thirty day jail sentence. Appellant’s first assignment of error is overruled.

                                                 II.

       {¶22} Appellant next argues the trial court abused its discretion in refusing to hear

appellant’s additional evidence after she filed her objections to the magistrate’s decision.

Appellant contends she should have been allowed to introduce evidence of her new job

making more than the $10 per hour she was making at the time of the April 27th hearing

and evidence that serving jail time on the week-ends would harm her job performance.

       {¶23} The trial court has discretion to decide whether to hear additional evidence

after the parties submit objections to the magistrate’s report. Wallace v. Taylor, 5th Dist.

Licking No. 00CA71, 2001 WL 178654 (April 16, 2001). Accordingly, when a trial court

hears or does not hear additional evidence, we review this decision under an abuse of

discretion standard. Parrish v. Parrish, 5th Dist. Knox No. 15CA4, 2015-Ohio-4560.

       {¶24} Upon review of the record, we find the trial court did not abuse its discretion

in overruling appellant’s motion to submit additional evidence. As noted by the trial court,

the additional evidence appellant sought to present was not related to whether she fully

complied with the June 13, 2014 order and thus not relevant to whether the trial court

should impose the sentence.

       {¶25} Appellant’s second assignment of error is overruled.
Tuscarawas County, Case No. 2015AP0029                                                     9


                                                III.

       {¶26} Appellant finally argues that even if the purge conditions were meaningfully

offered, the trial court abused its discretion in finding appellant capable and willfully

avoiding paying them in full to purge herself of the contempt.

       {¶27} Appellant contends that since the magistrate held a “new” hearing in April

of 2015, she was entitled to a “new” determination of whether she could pay to purge the

contempt. As detailed above, the purge conditions were established and upheld in

appellant’s previous appeal and the April 2015 hearing was not a “new” contempt hearing.

Further, in the previous appeal to this Court, we found that while appellant maintained

she did not have the financial means to make payments to appellee, the “evidence and

the court’s findings suggest otherwise.”          This Court affirmed the magistrate’s

determination appellant was voluntarily underemployed and appellant’s expenses were

unreasonable in light of her position that she does not have the ability to pay her court

ordered payments.

       {¶28} At least one court has found that any issue regarding appellant’s ability to

pay became res judicata once we affirmed appellant’s first appeal affirming the trial court’s

determination that appellant was not able to pay and the only issue to determine at the

purge hearing is whether appellant paid the amount ordered to purge the contempt.

Bostick v. Bostick, 2nd Dist. Champaign No. 2014-CA-22, 2015-Ohio-455 (stating that the

purge hearing was not the proper venue to introduce evidence regarding ability to pay the

court-ordered obligation and the only remaining issue was whether the appellant paid to

purge the contempt finding). Thus, in this case, the only issue at the April 2015 hearing
Tuscarawas County, Case No. 2015AP0029                                                  10


was whether appellant performed the court-ordered conditions to purge her contempt.

Here, appellant testified she did not make any of the court-ordered payments.

       {¶29} Further, even if appellant could again raise the issue of inability to pay at

the April 2015 hearing, we find the trial court did not abuse its discretion in finding

appellant did not present sufficient evidence to meet her burden of inability to pay. The

burden of proving inability to pay is on the party subject to the contempt order. Liming v.

Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297.

       {¶30} Appellant testified she could not afford to pay the amount.         However,

appellant stated she was working a full-time job making $10.00 per hour. Further, her

statements are insufficient to satisfy her burden of proof as unsupported claims of

financial difficulties are insufficient to satisfy a contemnor’s burden. King v. King, 11th

Dist. Geauga No. 2011-G-3046, 2013-Ohoi-432, citing Liming v. Damos, 133 Ohio St.3d

509, 2012-Ohio-4783, 979 N.E.2d 297.

       {¶31} Thus, we find the trial court did not abuse its discretion when it found

appellant failed to comply with the purge conditions and imposed the sentence.

Appellant’s third assignment of error is overruled.
Tuscarawas County, Case No. 2015AP0029                                             11


      {¶32} Based on the foregoing, appellant’s assignments of error are overruled and

the May 29, 2015 judgment entry of the Tuscarawas County Court of Common Pleas is

affirmed.



By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
