[Cite as Smith v. Smith, 2017-Ohio-6919.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Ronald N. Smith                                 Court of Appeals No. OT-16-014

        Plaintiff                               Trial Court No. 07DR226

v.

Twila M. Smith                                  DECISION AND JUDGMENT

        Appellee                                Decided: July 21, 2017

[Gaye Harris Miles - Appellant]

                                       *****
        Howard C. Whitcomb, II, for appellee.

        Geoffrey L. Olglesby, for appellant.

                                            *****
        OSOWIK, J.

        {¶ 1} This is an appeal from a March 25, 2016 judgment of the Ottawa County

Court of Common Pleas, which found appellant, Gaye Harris-Miles, in contempt of court.
This case stems from a divorce action between appellee, Twila Smith, and her now

deceased ex-husband, Ronald Smith.

       {¶ 2} Appellant had served as legal counsel for the decedent in the 2009 divorce

action. As a result of her conduct as legal counsel in the divorce, appellant was found in

contempt of court. The trial court made the contempt finding after discovering that

appellant had improperly reduced the spousal support award granted in the divorce decree

through the filing of a nunc pro tunc pertaining to a property legal description.

       {¶ 3} In conjunction with the improper modification by appellant, the trial court

further noted in making a finding of contempt that appellant was aware of the impropriety

of the matter for at least seven months prior to the contempt hearing yet took no action to

remedy her misconduct and offered no benign explanation for her actions.

       {¶ 4} Following the finding of contempt against appellant, appellant was

sentenced to a stayed 30-day term of incarceration, with purge conditions established

including the repayment of $19,883.14 in restitution to the victim. The restitution

amount was comprised of the legal fees, spousal support shortfall, and other costs

incurred as a result of appellant’s actions. For the reasons set forth below, this court

affirms the judgment of the trial court.

       {¶ 5} Appellant sets forth the following five assignments of error:

              I. THE TRIAL COURT ERRED BY FINDING THE APPELLANT

       IN CONTEMPT FOUR YEARS AFTER THE FACT, ORDERING HER

       TO PAY ATTORNEY FEES BASED ON FACT THAT THE CLAIM



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     FOR ATTORNEY FEES AND OTHER COSTS COULD HAVE BEEN

     LITIGATED AND THEN WERE LITIGATED IN THE UNDERLYING

     CASE.

          II. THE COURT ERRED BY FINDING THAT AN ATTORNEY

     IS LIABLE TO [A] THIRD PERSON ARISING OUT OF HER

     PERFORMANCE IN COURT.

          III. THE TRIAL COURT ERRED, AND ABUSED ITS

     DISCRETION BY HOLDING THE APPELLANT IN CONTEMPT

     WHEN THERE WAS NO FINDING THAT THE ACTS OF THE

     APPELLANT WERE WILLFUL DISOBEDIENCE OF A COURT

     ORDER, NOR A FINDING THAT THE APPELLANT FAILED TO

     COMPLY WITH A COURT ORDER.

          IV. THE TRIAL COURT ERRED, AND ABUSED ITS

     DISCRETION BY HOLDING AND HAVING A HEARING ON A

     CONTEMPT MOTION AGAINST AN APPELLANT ATTORNEY

     WHEN THE ATTORNEY FOR THE APPELLEE PUT IN [THE]

     BILLING STATEMENT THAT THE ATTORNEY FOR THE

     APPELLEE HAD A ‘CONFERENCE WITH THE JUDGE’ AND THE

     CONFERENCE IS NOT ON THE RECORD AND NOT ATTENDED BY

     THE APPELLANT ATTORNEY.




3.
               V. THE TRIAL COURT ERRED BY ACCEPTING

         JURISDICTION WHEN THE STATUTE OF LIMITATIONS ON

         CONTEMPT EXPIRED.

         {¶ 6} The following undisputed facts are relevant to this appeal. In the 2009

divorce decree judgment, spousal support was awarded to appellee in an amount of $500

per month for 10 years. The spousal support provision established that, “[T]he award of

spousal support also shall not terminate upon the death or remarriage of either party.”

(Emphasis added).

         {¶ 7} In 2010, appellant sua sponte drafted a nunc pro tunc entry ostensibly solely

for purposes of adding a legal description to the divorce decree. However, the entry also

unilaterally reduced the spousal support award. The improper entry was signed by

appellant and submitted to a trial court magistrate. Appellee was never notified of the

entry, nor did she receive a copy of it.

         {¶ 8} Contrary to the original divorce decree, the spousal support provision

establishing that, “[T]he award of spousal support also shall not terminate upon the death

or remarriage of either party” was materially altered by the nunc pro tunc to state that,

“[T]he award of spousal support also shall terminate upon the death or remarriage of

either party.” (Emphasis added). As such, the deletion of the key word “not” in the

modified version of the spousal support award improperly modified the spousal support

award.




4.
       {¶ 9} In 2012, based upon the modified spousal support provision, appellant filed

a motion on behalf of Mr. Smith to terminate spousal support as he had remarried. The

motion to terminate spousal support was granted by a magistrate.

       {¶ 10} Notably, appellee once again was not notified by appellant of these actions

nor was she served with a copy of the entry prematurely terminating her spousal support

seven years prior to the divorce decree term. Appellee only became aware of the

termination of the spousal support termination after being notified by the Ottawa County

CSEA.

       {¶ 11} In 2013, following her discovery of what had occurred, appellee obtained

counsel and filed a Civ.R. 60(B)(5) motion to vacate the nunc pro tunc judgment. Once

the matter was brought to the attention of the trial court, the trial court reinstated the

original $500 a month 10-year spousal support order and vacated appellant’s improper

2012 nunc pro tunc entry. In October 2015, Mr. Smith died.

       {¶ 12} On December 10, 2015, following her ex-husband’s death, appellee

testified in a motion to show cause hearing before the trial court regarding the economic

harm and various costs that she had incurred as a result of the improperly altered spousal

support provision. Appellant furnished no legitimate rationale for her actions in

connection to the nunc pro tunc. The trial court held appellant in contempt of court. This

appeal ensued.

       {¶ 13} We note that all of the assignments of error are rooted in the common legal

premise that the trial court abused its discretion in connection to finding appellant in



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contempt of court. Accordingly, we will simultaneously consider the assignments of

error.

         {¶ 14} In Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983), the

Ohio Supreme Court defined abuse of discretion as, “connot[ing] more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Id. at 219.

         {¶ 15} Despite appellant’s many arguments to the contrary, the record reflects no

impropriety by the trial court in addressing the above-described course of conduct by

appellant in her capacity as legal counsel. The record is devoid of any objective evidence

demonstrating a proper justification for appellant’s covert conversion of the spousal

support terms via a unilateral nunc pro tunc which was supposedly filed solely for

purposes of inserting a legal description.

         {¶ 16} The record reflects that the ramification of appellant’s actions was the

reduction of appellee’s spousal support award without notice or a hearing. This resulted

in the cessation of a 10-year award of spousal support after just three years.

         {¶ 17} The record reflects appellee did not discover what had taken place until

September 21, 2012, upon notification from the local CSEA. As such, appellee’s

February 20, 2013 Civ.R.60(B)(5) motion was timely made.

         {¶ 18} The record reflects appellant’s deliberate course of conduct in not notifying

appellee, or anyone on appellee’s behalf, that appellant unilaterally altered the spousal

support obligation owed to appellee. Under the original agreement, appellee was owed



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$60,000 in spousal support. Due to appellant’s improper entry, that obligation was

reduced by two-thirds, to $20,000.

       {¶ 19} Blanket assertions by appellant that there is no evidence of illicit intent

underlying these actions run counter to the record of evidence. The covert manner in

which this was done, in conjunction with the direct financially material benefit to

appellant’s client, eliminates benign motivations.

       {¶ 20} The record further reflects that at appellant’s contempt hearing she failed to

offer any logical or legitimate explanation for her conduct or for her failure to undo it

during the seven-month span from appellee’s motion filing until appellant’s show cause

hearing.

       {¶ 21} We further note that appellant’s unsupported suggestion that a time billing

entry by legal counsel that appellee retained in order to rectify appellant’s conduct in any

way undercuts the contempt finding is counterintuitive and unpersuasive.

       {¶ 22} Lastly, with respect to the timeliness of the contempt proceeding, the

record shows that the trial court first learned of the misconduct on September 20, 2013.

The motion to show cause was filed on May 26, 2015, prior to the lapsing of the two-year

statute of limitations.

       {¶ 23} Wherefore, we find that appellant has failed to demonstrate any arbitrary,

unreasonable, or unconscionable trial court actions in connection to this matter.

Appellant’s assignments of error are found not well-taken and are denied. The judgment




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of the Ottawa County Court of Common Pleas is hereby affirmed. Appellant is ordered

to pay the costs of this appeal pursuant to App.R. 24.



                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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