[Cite as Anwar v. Anwar, 2018-Ohio-417.]




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

 MICHELLE ANWAR                                  :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-39
                                                 :
 v.                                              :   Trial Court Case No. 14-DR-168
                                                 :
 SHADY ANWAR                                     :   (Civil Appeal from
                                                 :    Domestic Relations Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 2nd day of February, 2018.

                                            ...........

DAVID M. MCNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A,
Beavercreek, Ohio 45431
     Attorney for Plaintiff-Appellee

JENNIFER E. MARIETTA, Atty. Reg. No. 0089642, 74 N. Orange Street, Suite 105,
Xenia, Ohio 45385
       Attorney for Defendant-Appellant

                                           .............
                                                                                            -2-


HALL, J.

       {¶ 1} A Final Judgment and Decree of Divorce for Michelle and Shady Anwar was

filed April 10, 2015. On November 23, 2015, Shady filed a Motion for Change of Child

Support, and on December 24, 2015 Michelle filed a Motion for Contempt for failure to

pay support as ordered. After a magistrate’s hearing and objections, the trial court

modified support effective November 23, 2015, found Shady in contempt, and ordered

that he serve thirty days in jail. After Shady spent several hours in jail, his father made a

support payment of $1,200, and the court ordered Shady to be released and scheduled

further sentencing review for a later date. Shady appealed. We affirm.

                                I. Course of Proceedings

       {¶ 2} The April 10, 2015 Final Judgment and Decree of Divorce required Shady

to pay child support of $615.22 per month. This amount was based on calculations of his

income being $30,000, as reflected in his original affidavit of financial disclosure, although

he later filed an amended financial disclosure with an attached 1099 form showing income

of $25,352 from one of his employers. Shady did not appeal from the Final Judgment and

Decree of Divorce. In his November 23, 2015 motion, Shady claimed his income was not

steady and was less than had been provided to the court for the decree. Shady’s support

motion and the motion for contempt filed by Michelle were heard before a magistrate on

February 8, 2016.

       {¶ 3} Shady’s affidavit of financial disclosure filed with his motion lists total income

as $16,500 and base yearly wages as $14,500. Shady’s hearing testimony was that he

has his own corporate business as a truck driver. According to Shady, the corporate tax

return for 2015 shows gross receipts of $56,414, and the corporation only paid him $6,360
                                                                                       -3-


for the year. He claimed his support should be based on his roughly $6,000 per year

income. The magistrate determined that Shady was voluntarily underemployed and

imputed income to him in the amount of $25,000 “consistent with his avowed earnings at

the time of the final decree.” The magistrate prepared a child-support worksheet including

father’s attributable income, mother’s income, child care and health insurance, and other

applicable adjustments. The magistrate ordered support, including service fees, of

$529.60 per month and $50.00, plus processing fees, per month on the arrearage.

      {¶ 4} Shady admitted at the hearing that he had not paid child support as ordered.

He testified that he paid $2,237.80 in child support. The support ordered as of the filing

of his motion for modification amounts to more than $5,000, and the total Shady actually

paid for the entire 2015 year is $2,223.03. The magistrate determined that Michelle

proved Shady had failed to pay support as ordered, that he had chosen to reduce his

income by starting his own trucking company, and that he willfully had failed to pay

support as ordered. The magistrate recommended a thirty-day jail sentence for contempt,

suspended on the conditions that Shady be allowed to purge the contempt by paying

support as ordered without missing for six months, paying Michelle’s allowed attorney

fees of $500 within ninety days, and maintaining current contact information with the

Greene County Support Enforcement Agency. The trial court approved and adopted the

terms of the magistrate’s decision as its entry on the same day, subject to the filing of

objections under Civ. R. 53.

      {¶ 5} Shady filed a timely pro se objection claiming that the income he presented

at the hearing is correct and accurate, that he moved to modify support because he

cannot pay what had been ordered, and that the April 2016 order was an “injustice.” With
                                                                                          -4-


leave of court, he filed a supplemental pro se objection on July 12, 2016. That filing is a

narrative rendition about the financial information he has filed, his trucking business, and

personal expenses and specified “hearing objections.” Those “hearing objections”

actually are explanations about his testimony, his truck payments, and business income

and deductions. He concludes with a statement that he has never made the income

imputed by the court in the last order and that he had paid what he could afford.

       {¶ 6} On October 19, 2016, the trial court sustained Shady’s objections in regard

to income and child support but also found him “in contempt of court after admitting he

has not paid as ordered.” For modification of support, the trial court determined that

Michelle had failed to prove that Shady had the ability to earn $25,000, as imputed by the

magistrate, or that he voluntarily had left a higher-paying job. However, the court then

went through a detailed analysis of the documentation Shady presented to evaluate his

income. The trial court noted that his corporation’s gross receipts for 2015 were $56,414.

The trial court did not allow a little more than $3,100 of miscellaneous deductions because

there was “no credible testimony or supporting documentation to prove the expenses,”

for such items as supplies, utilities, uniforms or office expenses, “were exclusively used

for the * * * trucking business.” The trial court also noted that it is not required to allow

some of the deductions for federal income-tax reporting when calculating child support

obligations. The trial court determined that ordinary and necessary business expenses

for support purposes were $40,312. The court then entered receipts, expenses, and the

differential marginal rate for SE taxes into a Child Support Computation Worksheet to

arrive at a 2015 income of $15,200.29 for child support purposes. With other adjustments

for Michelle’s income, child care and health insurance, the resulting periodic support
                                                                                       -5-


amount, including the two-percent service fee, was $395.35 per month. The court made

this amount its order for child support retroactive to November 23, 2015, the date of the

filing of Shady’s modification motion.

       {¶ 7} The trial court’s October 19, 2016 decision also determined that all other

aspects of the previous decision and order remained unchanged. The court scheduled

the contempt-of-court finding for sentencing on January 20, 2017. A hearing was held on

that day. By entry filed January 27, 2017, the trial court determined that, as of December

31, 2016, there was a total support arrearage of $5,663.10, and that Shady had paid only

$2,223.03 in 2015 and $2,621.31 in 2016. The trial court continued the contempt

sentencing until April 20, 2017 and again ordered Shady to make “regular monthly

payments.” The trial court stated that it would “not listen to any more excuses.” On April

24, 2017, Shady moved for a continuance, claiming an injury, and the court rescheduled

the matter for June 22, 2017.

       {¶ 8} The trial court’s June 27, 2017 Entry Continuing Sentence Review reflects

that at the June 22, 2017 hearing it determined that Shady “has failed to purge the

contempt by making regular, monthly payments in the amount ordered.” As a result,

Shady was sent to jail to serve a thirty-day sentence. Several hours later, however, his

father made a payment of $1,200 on the child-support arrearage. The trial court then

released Shady that afternoon but ordered him to seek or participate in work activity and

specifically ordered him to participate in the “Ohio Means Jobs” program. The trial court

also scheduled a sentence review hearing for September 29, 2017.

       {¶ 9} On July 10, 2017, Shady filed a Notice of Appeal of the “30 days sentence

commitment along with the modification order that was entered on June 23, 2017.”
                                                                                       -6-


Attached to the Notice of Appeal was a “Commitment” to 30 days in jail that was file-

stamped on June 23, 2017, and the trial court’s Entry Continuing Sentence filed June 27,

2017.

                          II. Analysis of Assignments of Error

        {¶ 10} The first of Shady’s three assignments of error reads: “THE TRIAL COURT

ABUSED ITS DISCRETION IN FINDING APPELLANT IN CONTEMPT OF COURT,

WHEN APPELLEE FAILED TO MEET HER BURDEN OF PROOF.” Shady argues that

because the trial court determined that Michelle “failed to meet her burden in showing

that Appellant was voluntarily underemployed, or that his decrease in income had a

negative impact on the minor child” it was unreasonable for the trial court to find him in

contempt. In our opinion, this argument erroneously conflates two things: (1) the trial

court’s conclusion that Shady was not proven to be underemployed and (2) an alleged

defense to the contempt finding, namely that Shady was unable to pay the ordered

support.

        {¶ 11} Shady relies on our decision in Fischer v. Fischer, 2d Dist. Clark No. 11-

CA-81, 2012-Ohio-2102, for the proposition that the burden to show underemployment of

one who is obligated to pay child support is upon the support recipient. Indeed, we said

in Fischer that “[a] child support obligee who claims that the obligor is voluntarily

underemployed has the burden of proof on that issue.” Id. at ¶ 24. Shady argues that

because the trial court determined that Michelle failed to prove that he was

underemployed, he cannot be found in contempt for not paying support as ordered. We

disagree. Underemployment and inability to pay may be related, but they are not co-

extensive. The burden to prove underemployment relates to the determination of the
                                                                                         -7-


amount of support to be ordered or modified. Conversely, the party who failed to comply

with a court order to pay support bears the burden of proving an inability to pay. Pugh v.

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

Champaign No. 2015-CA-13, 2016-Ohio-3354, ¶ 10.

       {¶ 12} Fischer involved both a contempt proceeding and a motion to modify child

support. Mr. Fischer had obtained a previous child support reduction which, when related

back to the date of his previous motion, created an overage in his support account. His

second motion for a modification was the result of his former position being eliminated

and him becoming a photographer at substantially-reduced income. We determined that

a further support reduction ordered by the trial court was not an abuse of discretion and,

in that context, we held that the burden to prove Mr. Fischer was voluntarily

underemployed was upon Mrs. Fischer. Support had been further reduced by the trial

court, and that amount too was made retroactive. But with regard to the contempt portion

of the proceeding, the trial court did not find Mr. Fischer in contempt because “the records

of the child support enforcement agency showed ‘that no arrears [were] owed[.]’ ” Id. at ¶

6. Consequently, the denial of the contempt was not related to Mr. Fischer’s alleged

underemployment or inability to pay. He was not in contempt because he was not in

arrears.

       {¶ 13} In the case before us, it is undisputed that Shady admitted he had not paid

support as ordered. “To support a finding of contempt, the moving party must establish

by clear and convincing evidence that a valid court order exists, that the offending party

had knowledge of the order, and that the offending party violated such order.” (Citations

omitted). Polk v. Polk, 2d Dist. Montgomery No. 24882, 2012-Ohio-2968, ¶ 10. Shady’s
                                                                                          -8-


admission of failure to pay support as ordered is ordinarily sufficient to support a contempt

finding. His defense, which we have indicated he has the burden to prove, is that he was

unable to pay. At the time of the April 2015 decree, support was calculated on his income

from figures he himself supplied. He did not appeal from the decree. He did not move for

a modification of support until November 2015. In the meantime, he paid less than half of

his obligation. Most importantly, the trial court determined that his income for 2015 for

child-support purposes was $15,200.29. On these facts, which are supported by the

record, the trial court found Shady in contempt. We review the trial court’s decision

whether to find a party in contempt under an abuse-of-discretion standard. Jenkins v.

Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶ 12 (2d Dist.). The record supports the

contempt finding, and we see no abuse of discretion. The first assignment of error is

overruled.

       {¶ 14} We turn next to the second and third assignments of error, which we will

consider together because they both deal with whether Shady purged the contempt to

avoid a jail sentence. Those assignments read: “II. THE TRIAL COURT ABUSED ITS

DISCRETION IN PROCEEDING WITH SENTENCING WITHOUT AN AUDIT REPORT

FROM THE CHILD SUPPORT ENFORCEMENT AGENCY (CSEA) AND INSTEAD

RELYING ON TESTIMONY FROM APPELLEE’S COUNSEL” and                          “III. THE TRIAL

COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT FOR CONTEMPT,

WHEN IT IGNORED OR PROHIBITED HIM FROM INTRODUCING EVIDENCE AS TO

HIS INABILITY TO PAY, AND INSTEAD TREATED HIM AS IF HE WERE

VOLUNTARILY UNDEREMPLOYED.”

       {¶ 15} When contempt sanctions are imposed to enforce compliance by coercive
                                                                                        -9-

means, then the contempt proceeding is civil. Denovchek v. Bd. of Trumbull Cty.

Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988). Punishment imposed for a

finding of civil contempt must afford the contemnor an opportunity to purge himself of

contempt. Fry v. Fry, 64 Ohio App.3d 519, 523, 582 N.E.2d 11 (3rd Dist.1989). “[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 whether the party is in contempt of court.”

Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-

4254, 22 N.E.3d 1035, ¶ 23. “[A] contemnor may have an additional appeal on the

question whether the purge conditions have been met following execution of sentence on

the failure to purge.” Id.

       {¶ 16} Here the record is unclear whether Shady had an opportunity to appeal the

contempt determination before he was sent to jail on June 22, 2017, which was the

subject of the trial court’s entry of June 27, 2017 which is being appealed. Although the

various court orders gave him opportunities to purge his contempt by paying support and

seeking work, we note that the trial court’s October 19, 2016 decision overruling

objections and finding him in contempt did not impose a specific sentence and stated that

“the contempt portion of this order is not appealable until after the sentencing portion of

the contempt finding has been heard and a decision is filed.” Thereafter, sentencing was

continued several times until Shady was sent to jail on June 22, 2017 to serve a thirty-

day sentence. But he was released almost immediately after an apparent partial-purge

payment of $1,200. The appealed order requires Shady to seek work and states:

“Defendant is ORDERED to make regular monthly payments in the amount ordered. In

the event the Defendant does not pay as ordered, the Plaintiff is ORDERED to file a
                                                                                       -10-


Motion to Impose Sentence and the defendant will serve the remaining 29 days.” A review

was set for September, 22, 2017, but Shady filed his notice of appeal on July 10, 2017.

On this record, we conclude that the trial court effectively imposed a thirty-day sentence

but suspended the jail sentence on the purge conditions contained in the June 27, 2017

Entry.

         {¶ 17} Upon review, we find that Shady has served one day of the jail sentence

imposed and that there is no relief we now can afford to him in that regard. In a criminal

case, when a defendant has served his sentence and only challenges whether the

sentence was correct, there is no remedy that can be provided that would have any effect

in the absence of a reversal of the underlying conviction. State v. Casto, 2d Dist. Clark

No. 15-CA-79, 2016-Ohio-2958, ¶ 5. We apply the same reasoning here. We already

have determined that the trial court was correct in its October 19, 2016 finding of

contempt. There is no relief we can provide as to whether the trial court properly

proceeded to find that Shady had failed to purge the contempt before having him spend

several hours in jail. The remaining twenty-nine days will not be imposed unless or until

he fails to comply with the purge conditions, which are matters for an appeal after a

subsequent purge hearing and execution of the remaining sentence. Accordingly, we

overrule the second and third assignments of error as moot.

         {¶ 18} Based on the reasoning set forth above, the judgment of the Greene County

Common Pleas Court is affirmed.

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



DONOVAN, J. and TUCKER, J., concur.
                        -11-




Copies mailed to:

David M. McNamee
Jennifer E. Marietta
Hon. Steven L. Hurley
