[Cite as Nowinski v. Nowinski,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

ERIN M. NOWINSKI JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10 CA 115 ROBERT J. NOWINSKI, et al.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 06 DR 1821

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 18, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW S. GROSSMAN BARRY H. WOLINETZ GROSSMAN LAW OFFICES KELLY M. GWIN 32 Hoster Street WOLINETZ LAW OFFICES Suite 100 250 Civic Center Drive, Suite 100 Columbus, Ohio 43215 Columbus, Ohio 43215 Licking County, Case No. 10 CA 115 2

Wise, J.

{¶1} Defendant-Appellant Robert J. Nowinski appeals from the decision of the

Licking County Court of Common Pleas, Domestic Relations Division, which found him

in contempt of court pursuant to a post-decree motion filed by Plaintiff-Appellee Erin M.

Nowinski, appellant’s former spouse. The relevant facts leading to this appeal are as

follows.

{¶2} Appellant and appellee were married in June 1996 in Granville, Ohio. Four

children were born of the marriage. On April 29, 2008, appellant and appellee were

granted a divorce by the Licking County Court of Common Pleas, Domestic Relations

Division.

{¶3} At the time of the divorce, appellant had built up several retirement

accounts, including a profit sharing plan and a 401(K) plan. The 2008 divorce decree

included the following provision (hereinafter “Paragraph 9”) regarding appellant’s

retirement funds:

{¶4} “9. RETIREMENT HOLDINGS – The Plaintiff [Appellee] shall be entitled

to receive the sum of $147,959 from one or more of Defendant’s [Appellant’s] retirement

holdings and shall retain same free and clear of any claim of Defendant. Plaintiff shall

prepare and the parties shall execute any QDRO(s) and/or rollover forms necessary to

accomplish this transfer. Defendant shall retain, free and clear of any claim of Plaintiff,

any remaining retirement funds held in his name.” Divorce Decree at 4.

{¶5} Although the figure used in Paragraph 9 was $147,959.00, the record

indicates that due to changes in the stock market during some of the times in question,

the retirement accounts at issue varied in combined value as follows: Licking County, Case No. 10 CA 115 3

{¶6} December 31, 2007: $147,950.64

{¶7} December 31, 2008: $180,061.02

{¶8} March 31, 2009: $ 99,653.72

{¶9} As further discussed infra, a QDRO was not journalized until April 30,

2009, at which time the combined account balance had dropped well below the

$147,959.00 figure ordered in Paragraph 9. Thereafter, the sum of $99,653.72 was

transferred to appellee, a shortfall of $48,305.30.

{¶10} On October 5, 2009, appellee filed a contempt motion against appellant

for failure to comply with the property distribution orders in the divorce.

{¶11} The matter proceeded to evidentiary hearings before the court on March

22, 2010, following which appellant moved to dismiss the contempt action. The court

took the dismissal motion under advisement, and further proceedings were conducted

on September 16, 2010.

{¶12} On September 24, 2010, the trial court issued a judgment entry denying

appellant’s motion to dismiss and finding appellant in contempt of court. Appellant was

sentenced to three days in jail, with a purge provision of appellant paying appellee

$48,305.30 plus interest within ninety days of the entry. Appellant was further ordered to

pay $2,300.00 in attorney fees and $200.00 in court costs.

{¶13} On October 20, 2010, appellant filed a notice of appeal. The trial court

granted a stay pending appeal on November 29, 2010. Appellant herein raises the

following four Assignments of Error: Licking County, Case No. 10 CA 115 4

{¶14} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT DENIED HUSBAND’S MOTION TO DISMISS WIFE’S

MOTION FOR CONTEMPT.

{¶15} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT FOUND HUSBAND IN CONTEMPT.

{¶16} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT ORDERED HUSBAND TO PAY WIFE AN ADDITIONAL

$48,305.30.

{¶17} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT ORDERED HUSBAND TO PAY WIFE’S ATTORNEY’S

FEES AND COURT COSTS.”

I.

{¶18} In his First Assignment of Error, appellant contends the trial court erred

and abused its discretion in denying his motion to dismiss appellee’s contempt motion

regarding the distribution of his retirement accounts following the parties’ divorce. We

disagree.

Laches

{¶19} Appellant first contends the trial court should have applied the doctrine of

laches in support of dismissing the contempt motion.

{¶20} Laches has been defined by the Ohio Supreme Court as “an omission to

assert a right for an unreasonable and unexplained length of time, under circumstances

prejudicial to the adverse party.” Connin v. Bailey (1984),

,

quoting Smith v. Smith (1959),

,

. Issues of Licking County, Case No. 10 CA 115 5

waiver, laches, and estoppel are “fact-driven.” Riley v. Riley, Knox App.No. 2005-CA-27,

, citing Dodley v. Jackson, Franklin App. No. 05AP11, 2005-Ohio-

5490. Delay in asserting a right does not of itself constitute laches. Zartman v. Swad,

Fairfield App.No. 02CA86,

, ¶ 51, citing

,

. Similarly, prejudice in a laches defense is generally not inferred merely

from inconvenience or the passage of time. See Smith, supra, at 457,

;

State ex rel. Polo v. Cuyahoga County Bd. of Elections (1995),

,

. The decision of a trial court concerning the application of the

equitable doctrine of laches will not be reversed on appeal in the absence of an abuse

of discretion. Payne v. Cartee (1996),

,

, 952-

953. An abuse of discretion is more than just an error in judgment; it implies that the

court's attitude is unreasonable, arbitrary, or unconscionable. Booth v. Booth (1989),

,

.

{¶21} Appellant herein maintains that appellee created unreasonable delay

regarding the transfer of the retirement funds by not submitting a QDRO to appellant

(via counsel) for pre-approval until the end of 2008, and by not submitting the finalized

QDRO to the trial court until April 2009, approximately a year after the final decree.

Appellant adds that appellee did not open an account capable of accepting a funds

rollover until May 2009. In response, appellee points out that appellant admittedly

refused to sign his approval for the QDRO documents in December 2008, on the advice

of his counsel.

{¶22} It is apparent to us that both parties in this instance could have done a

more expeditious job of facilitating the finalization of the retirement funds division; Licking County, Case No. 10 CA 115 6

however, we are unable to find the trial court’s refusal to allow laches to defeat the

contempt action constituted an abuse of discretion under the circumstances presented.

‘‘Unclean Hands”

{¶23} Appellant next contends the trial court should have applied the doctrine of

clean hands as a means of dismissing the contempt motion.

{¶24} The doctrine of clean hands is based on the maxim of equity that provides

“he who comes into equity must come with clean hands.” Seminatore v. Climaco,

Climaco, Lefkowitz & Garofoli Co., L.P.A., Cuyahoga App.No. 81568,

,

¶ 26, citing Marinaro v. Major Indoor Soccer League (1991),

,

. “Equity is based upon what is perceived as fair under the circumstances of

each case and, when both parties are guilty of injustice, a court of equity will leave them

as they are.” Aultcare Corp. v. Roach, Stark App.No. 2008CA00287,

, ¶

44, quoting Patterson v. Blanton (1996),

,

.

The application of the doctrine is at the discretion of the trial court. See Slyh v. Slyh

(1955),

,

.

{¶25} Appellant again emphasizes the time delay in appellee’s finalization of the

QDRO and setting up a rollover account, proposing that this inaction leaves her with

unclean hands. However, Ohio courts have recognized that the invocation of the clean

hands doctrine does not apply where a party has legal remedies available to address

the alleged misconduct of the party seeking the contempt finding. See Gardner v.

Bisciotti, Franklin App.No. 10AP-375,

, ¶ 19, citing Deutsche Bank Natl.

Trust Co. v. Pevarski,

,

,

. In the

case sub judice, appellant had the ongoing opportunity to move his retirement funds into Licking County, Case No. 10 CA 115 7

more conservative investments or cash pending the QDRO, but he chose not to. Under

these circumstances, we hold the trial court did not abuse its discretion in declining to

apply the clean hands doctrine.

Jurisdiction to Modify

{¶26} Appellant additionally contends the trial court should have dismissed the

contempt motion on the grounds that the trial court did not have continuing jurisdiction

to modify the parties’ property division. This Court has recognized that once a court has

made an equitable property division, a trial court does not have jurisdiction to modify its

decision without consent. See, e.g., Oberst v. Oberst, Fairfield App.No. 09-CA-54,

, ¶ 22, citing R.C. 3105.171(I). However, we find no merit in appellant’s

essential claim that the contempt remedy in this instance constituted an attempt by the

trial court to modify the terms of property division in the divorce decree.

{¶27} Appellant’s First Assignment of Error is therefore overruled.

II.

{¶28} In his Second Assignment of Error, appellant contends the trial court erred

and abused its discretion in finding him in contempt of court regarding the distribution of

his retirement accounts following the parties’ divorce. We disagree.

{¶29} In dividing property in a divorce, a court attempts to disentangle the

parties’ economic partnership so as to create finality to the marriage. See Smith v.

Smith, Franklin App. No. 95APF06-719,

, citing Hoyt v. Hoyt (1990),

. The gist of appellant’s present argument is his assertion that he

“complied to the extent it was possible as there simply were not enough funds in his

retirement holdings to transfer to [appellee].” Appellant’s Brief at 10. Licking County, Case No. 10 CA 115 8

{¶30} The purpose of civil contempt proceedings is to compel compliance with a

court's order. See Natl. Equity Title Agency, Inc. v. Rivera (2001),

. Our standard of review regarding a finding of contempt is limited to a determination

of whether the trial court abused its discretion. In re Mittas (Aug. 6, 1994), Stark

App.No.1994CA00053. Appellant herein failed to timely approve the QDRO, chose not

to convert the funds in the retirement account to a more stable investment alternative

pending the division of the account, and declined to pursue any action to ensure the

funds were more rapidly divided if he felt the process was lagging.

{¶31} Upon review, we are unable to find an abuse of discretion in the court’s

utilization of a contempt finding to ensure compliance with its orders under the

circumstances of the present case.

{¶32} Appellant’s Second Assignment of Error is therefore overruled.

III.

{¶33} In his Third Assignment of Error, appellant contends the trial court erred

and abused its discretion in ordering him to pay $48,305.30 (more or less, the figure of

$147,959.00 per Paragraph 9 less the March 2009 account value of $99,653.72) to

appellee as a remedy in the contempt action. We disagree.

{¶34} Appellant first specifically contends the order to pay $48,305.30

inequitably forces him to bear the entire market loss which ultimately occurred in the

retirement account. In other words, appellant maintains that had appellee more actively

finalized the QDRO and set up the rollover account, there would likely at least have

been some funds left over to appreciate in his favor. Instead, there is now nothing left in

his former retirement account at all. Such an argument, however, is plausible only with Licking County, Case No. 10 CA 115 9

the benefit of hindsight. As described in our recitation of facts, we can now look back

and see that the retirement funds grew solidly during 2008, but then plummeted during

the first quarter of 2009. Had economic history gone differently and had the funds

remained steady during these periods, appellant’s former account would likewise have

been left empty after Paragraph 9 was finally carried out.

{¶35} Appellant secondly presents a more complex present/future value

argument based on the fact that the $48,305.30 shortfall will now have to be paid from

his non-retirement resources, whereas Paragraph 9 was envisioned to have the funds

transfer directly from his retirement account to appellee’s IRA or similar account. Expert

testimony was adduced during the contempt proceedings that the tax-affected value of

$48,305.30 is approximately $33,330.00, based on appellee’s projected tax rate of 31%.

Furthermore, the present value of $33,330.00 as of the date of the decree is $8,660.00,

and the present value of $33,330.00 as of the time of the contempt hearing is

$9,606.00. Appellant contends that the court should have utilized a remedy of either of

these “present value” figures, or, at the very least, that the court should have considered

that the transferred retirement funds had again grown from $99,653.72 in March 2009 to

more than $105,000.00 in August 2010 (thus lowering the $48,305.30 shortfall figure).

{¶36} Nonetheless, because Paragraph 9 specifically directed that appellee was

to receive $147,959.00 as of the date of the decree, rather than as of the time of her

expected retirement, we find the sum-certain contempt provision was within the bounds

of the court’s discretion.

{¶37} Appellant’s Third Assignment of Error is overruled. Licking County, Case No. 10 CA 115 10

IV.

{¶38} In his Fourth Assignment of Error, appellant maintains the trial court erred

and abused its discretion in ordering him to pay attorney fees of $2,300.00. We

disagree.

{¶39} An award of attorney's fees lies within the sound discretion of the trial

court. Rand v. Rand (1985),

.

{¶40} R.C. 3105.73(B) states as follows:

{¶41} “In any post-decree motion or proceeding that arises out of an action for

divorce, dissolution, legal separation, or annulment of marriage or an appeal of that

motion or proceeding, the court may award all or part of reasonable attorney's fees and

litigation expenses to either party if the court finds the award equitable. In determining

whether an award is equitable, the court may consider the parties' income, the conduct

of the parties, and any other relevant factors the court deems appropriate, but it may not

consider the parties' assets.”

{¶42} In the case sub judice, the trial court heard testimony as to appellee’s

attempts to resolve the retirement funds issue outside of a contempt action, as well as

the amount and reasonableness of appellee’s attorney fees. See Tr. at 11-15. Appellant

continues to maintain that any violation of Paragraph 9 of the decree on his part was

unintentional. However, upon review of the record, and for reasons as we have

previously herein set forth, we find the court’s assessment of the parties’ individual

conduct and the corresponding equities involved was not unreasonable, arbitrary or

unconscionable. Licking County, Case No. 10 CA 115 11

{¶43} Accordingly, appellant's Fourth Assignment of Error is overruled.

{¶44} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Licking County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

___________________________________

___________________________________

___________________________________

JUDGES JWW/d 0623 Licking County, Case No. 10 CA 115 12

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

ERIN M. NOWINSKI : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ROBERT J. NOWINSKI, ET AL. : : Defendant-Appellant : Case No. 10 CA 115

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Licking County,

Ohio, is affirmed.

Costs assessed to appellant.

___________________________________

___________________________________

___________________________________

JUDGES