[Cite as Kirin v. Kirin,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

KIMBERLY D. KIRIN nka SHAMP ) CASE NO. 08 MA 243 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) VICTOR J. KIRIN ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas , Domestic Relations Division, of Mahoning County, Ohio Case No. 07 DR 205

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Kimberly Kirin nka Shamp, Pro se 8425 Weather Wood Trail Poland, Ohio 44514

For Defendant-Appellant: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44113

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: February 9, 2011 WAITE, P.J. -2-

{¶1} Appellant, Victor J. Kirin, appeals the judgment of the Mahoning County

Court of Common Pleas, Domestic Relations Division, holding him in contempt for

failure to pay child and spousal support and imposing a sentence of thirty days in the

Mahoning County Jail. No response brief was filed. For the following reasons, the

judgment entry of the domestic relations court is affirmed.

{¶2} The marriage of Appellant and Appellee, Kimberly D. Kirin nka Shamp,

was terminated by a judgment entry of divorce dated February 6, 2008. Pursuant to

a separation agreement, Appellant, a self-employed commercial truck driver, was

ordered to pay child support in the amount of $292.08 per month for each of the

parties’ two children, plus $700.00 in spousal support for 66 months, for a total

support obligation of $1,284.16 per month, commencing on January 1, 2008.

(7/22/08 Tr., p. 3.)

{¶3} On April 2, 2008, Appellee filed a motion to show cause why Appellant

should not be held in contempt for failing to execute a quit claim deed to the marital

residence as ordered in the divorce decree. As a result of the show cause motion,

the child support enforcement agency suspended Appellant’s commercial driver’s

license on April 30, 2008. The matter was resolved without a hearing, and, on May 8,

2008, the domestic relations court reinstated Appellant’s commercial driver’s license.

{¶4} Two days prior to the resolution of the first show cause motion, on May

6, 2008, Appellee filed a motion to show cause why Appellant should not be held in

contempt for failure to pay child and spousal support, the issue in this appeal. At the

hearing on the motion, conducted on July 22, 2008, Appellee established an -3-

arrearage of $3,783.35. Appellant made no payments in January, March and April,

but made a $1,783.92 payment in February, a $362.73 payment in May, and a

$1,782.83 payment in June. (7/22/08 Tr., pp. 14-15.)

{¶5} At the hearing, Appellant testified that he has been a commercial truck

driver for approximately thirty years. (7/22/08 Tr., p. 32.) According to his testimony,

he was making $200,000 a year, but he lost his primary hauling contract in January

of 2008 to another driver who underbid him. (7/22/08 Tr., p. 23.) Appellant testified

at the hearing that he, “couldn’t afford to run the truck, fix the truck, pay for all the

attorneys and everything else.” (7/22/08 Tr., p. 23.)

{¶6} Although Appellant had found new employment with Wiedmeyer

Express on April 1, 2008, he quit that job the day before the show cause hearing,

because the trucking company allegedly breached a promise to him to sell him a

truck, and he was only clearing $84.00 a week after paying his child support.

(7/22/08 Tr., pp. 19-20.) Later in his testimony, he stated that sometimes he would

clear $200 a week after child support. (7/22/08 Tr., p. 26.) He testified that he quit

the job with Wiedmeyer in order to have time to find another job, and because he

could not afford to support himself with his wages from Wiedmeyer.

{¶7} Appellant claimed that his age, 47, and his lack of computer skills,

which are now considered a necessity by trucking companies, severely limited his

employment options. (7/22/08 Tr., pp. 32-33.) He further testified that he was

destitute, and that the only utility he was able to maintain at his residence was water.

(7/22/08 Tr., p. 26.) -4-

{¶8} Appellant testified that he was actively seeking employment at the time

of the hearing. He stated however, that without his own truck he could not earn the

same wage that he had earned in the past. (7/22/08 Tr., p. 27.) He further testified

that he and Shamp were living beyond their means during their marriage, because

they were not paying taxes. Apparently, his wages from Wiedmeyer were subject to

withholding for social security and taxes.

{¶9} Finally, Appellant argued that the arrearage should be offset by

substantial overpayments he made pursuant to the temporary support order, which

was entered during the pendency of the divorce proceeding. Appellant claimed that

the calculation of his temporary support payments failed to factor in his truck and

trailer payments. (7/22/08 Tr., p. 5.) At the hearing, the magistrate informed him that

the temporary support order was not properly before the court, and that his recourse

with respect to the temporary support order was to file an appeal. (7/22/08 Tr., p.

11.)

{¶10} According to Appellee, Appellant stopped working in January of 2008

out of spite. She testified that Appellant threatened to give up his truck and quit his

job at a hearing on December 26, 2007, and that, “[w]ithin less than 15 days he did.”

(7/22/08 Tr., p. 30.) Appellant claimed that he made that statement when he was told

he could not gain custody of his children because of his profession. (7/22/08 Tr., pp.

30-31.) Both attorneys were present when Appellant made the statement at the

hearing, but neither attorney remembered the exact context of the statement. -5-

{¶11} Appellant’s attorney, David Gerchak, represented to the magistrate that

he intended to file a motion to modify support on the day of the hearing. The motion

was not resolved prior to this appeal.

{¶12} The magistrate concluded that Appellee had established Appellant’s

contempt by clear and convincing evidence, and rejected Appellant’s defense that he

was not voluntarily unemployed. However, the magistrate permitted Appellant to

purge the contempt by immediately resuming his support obligation, paying an

additional $15.84 toward his arrearage, immediately seeking employment and

providing proof of five applications to prospective employers at the next hearing, and

paying reasonable attorney fees in the amount of $275 plus $100 in court costs to

Appellee. A second hearing was set for October 20, 2008. In the event that

Appellant failed to purge the contempt by that date, the magistrate recommended a

thirty-day jail sentence. (7/28/08 Magistrate’s Decision, p. 4.)

{¶13} Appellant filed objections to the magistrate’s decision, but did not file a

transcript of the hearing. Hence, the domestic relations court adopted the

magistrate’s decision without consideration of the evidence offered at the hearing.

Appellant argued in his objections that he was not voluntarily unemployed. The

judgment entry was issued on October 3, 2008.

{¶14} At the October 20, 2008 hearing, the arrearage had increased to

$6,367.37. Appellant testified that he had submitted an application for employment

with an independent truck owner and a drug test was scheduled later that same day,

but that the employer was reluctant to hire him since he might be going to jail. -6-

(10/20/08 Tr., pp. 5-6.) Appellant also claimed that he had applied for a job with

Ludt’s Towing, where he would make $500 to $700 dollars a week. He testified that

every company he applied to refused to hire him because his license was suspended

for being in arrears. (10/20/08 Tr., pp. 6-7.) He claimed that he will never earn the

same amount of money that he formerly earned. As of the October 20, 2008 hearing,

Appellant testified that his water had been shut off, he had no car, and his motorcycle

had been repossessed. (10/20/08 Tr., p. 6.) He testified that friends and relatives

were bringing him food and cigarettes.

{¶15} The magistrate found that Appellant failed to purge his contempt, and

recommended a thirty-day jail sentence, but provided him an additional 45 days to

make a lump sum payment of $3,900.00, representing child and spousal support due

for the previous three months. (10/23/08 Magistrate’s Decision, p. 5.)

{¶16} Appellant did not file any objections to the Magistrate’s decision issued

on October 23, 2008. Based upon Appellant’s failure to meet the purge conditions,

the domestic relations court imposed a sentence of 30 days in the Mahoning County

Jail. (11/13/08 J.E., p. 5.) Appellant was ordered to present himself to the jail on

December 19, 2008, unless he made a lump sum payment of $4,000.00,

representing the support arrearage that had accumulated during the previous three

months. The sentence was stayed pending this timely appeal. -7-

ASSIGNMENT OF ERROR NUMBER ONE

{¶17} “THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING

DEFENDANT/APPELLANT IN CONTEMPT FOR FAILURE TO PAY CHILD

SUPPORT AND/OR SPOUSAL SUPPORT.”

{¶18} Civ.R. 53(D)(3)(b)(iv), captioned, “[w]aiver of right to assign adoption by

court as error on appeal,” reads, in its entirety, “[e]xcept for a claim of plain error, a

party shall not assign as error on appeal the court’s adoption of any factual finding or

legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that

finding or conclusion as required by Civ.R. 53(D)(3)(b).” Consequently, we review

the judgment entry on appeal for plain error.

{¶19} “In appeals of civil cases, the plain error doctrine is not favored and

may be applied only in the extremely rare case involving exceptional circumstances

where error, to which no objection was made at the trial court, seriously affects the

basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.

Davidson (1997),

,

, at paragraph one of the

syllabus.

{¶20} In Goldfuss, the Ohio Supreme Court explained that the doctrine should

only be applied in extremely unusual circumstances where the error complained of, if

left uncorrected, would have a material adverse effect on the character of and public

confidence in judicial proceedings.

,

. The Court -8-

concluded that the public’s confidence is rarely upset merely by forcing civil litigants

to live with the errors they themselves or the attorney chosen by them have

committed.

,

.

{¶21} The burden of proof for the moving party in a civil contempt action is

clear and convincing evidence. Brown v. Executive 200, Inc. (1980),

,

. After the moving party establishes a prima facie case of

contempt by showing evidence of nonpayment according to the terms of a dissolution

decree, the burden shifts to the nonmoving party to establish a defense for

nonpayment. Morford v. Morford (1993),

,

.

{¶22} The nonmoving party must then prove any defense by a preponderance

of the evidence. Jeffers v. Jeffers, 7th Dist. No. 07 BE 36,

.

“The preponderance of the evidence standard simply requires the trier of fact to

believe that the existence of a fact is more probable than its nonexistence before [he]

may find in favor of the party who has the burden to persuade the [judge] of the fact’s

existence.” (Internal citations omitted.) Crick v. Starr, 7th Dist. No. 08MA173, 2009-

Ohio-6754, ¶35.

{¶23} At the show cause hearing, Appellant argued that his prospects for

employment in the trucking industry were limited due to his age and his lack of

computer skills. After losing his long-time trucking job, Appellant was unemployed for

three months, until he found work as a truck driver with Wiedmeyer. According to his

testimony, he left that job after less than three months because he was mislead about -9-

his prospects of owning his own truck, and could not support himself on his wages.

As of the purge hearing held on October 20, 2008, Appellant still had not found a job.

{¶24} Appellee testified that Appellant left his long held trucking job

voluntarily, after threatening to do so during the divorce proceedings in retaliation for

failing to get custody of his children.

{¶25} Appellant contends that he is not voluntarily unemployed. However, the

magistrate and the domestic relations court did not credit Appellant’s explanation for

his financial situation, and the trial court is in the best position to view the demeanor,

attitude, and credibility of the witnesses. Davis v. Flickinger (1997),

,

, citing Seasons Coal Co. v. Cleveland (1984),

,

.

{¶26} Based upon the foregoing facts and law, this case does not present the

extremely rare or exceptional circumstances contemplated by the plain error rule.

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

ASSIGNMENT OF ERROR NUMBER TWO

{¶27} “THE TRIAL COURT’S PURGE CONDITIONS WERE

UNREASONABLE.”

{¶28} A trial court abuses its discretion when it orders conditions for purging

that are unreasonable or impossible for the contemnor to meet. Pavlic v. Barium &

Chemicals, Inc., 7th Dist. No. 02 JE 33,

. The determination of

whether a particular purge condition is unreasonable or impossible varies on a case-

by-case basis.

The contemnor must present sufficient evidence at the contempt -10-

hearing that the trial court’s purge conditions are unreasonable or impossible for the

contemnor to meet.

{¶29} At the October 20, 2008 hearing, Appellant did not object to the purge

conditions set forth by the magistrate, and he did not file any objections to the

October 23, 2008 judgment entry. Although the purge condition in this case involved

a substantial amount of money, the circumstances presented are not the extremely

rare or extraordinary circumstances contemplated by the civil rule. Accordingly,

Appellant’s second assignment of error is overruled and the judgment of the domestic

relations court is affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.