[Cite as King v. King,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

PHILIP G. KING, : OPINION

Plaintiff-Appellee, : CASE NO. 2011-G-3046 - vs - :

JENNIFER L. KING, :

Defendant-Appellant. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 07 DC 000470.

Judgment: Affirmed.

R. Russell Kubyn, The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (For Plaintiff-Appellee).

Joyce E. Barrett, 800 Standard Building, 1370 Ontario Street, Cleveland, OH 44113- 1752 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Jennifer L. King, appeals from a judgment of the Geauga

County Court of Common Pleas, imposing a 30-day jail sentence for her failure to purge

her contempt, and suspending appellee, Philip G. King’s, spousal support obligation for

a period of 16 months. The trial court ordered that Philip’s spousal support obligation

towards Jennifer be used to offset Jennifer’s obligation to pay Philip’s attorney fees pursuant to a previous court order in which judgment was issued against Jennifer for

those fees.

{¶2} Philip and Jennifer married in 1994. Two children were born as issue of

the marriage. In 2007, Philip filed for divorce. Jennifer filed an answer and

counterclaim. The parties were granted a divorce in 2009. The divorce decree adopted

a separation agreement and shared parenting plan executed by the parties. The

divorce decree ordered Philip to pay spousal support to Jennifer in the amount of $334

per month, plus a two percent processing charge, for 84 consecutive months

commencing on February 5, 2009. The decree stated that all payments shall terminate

on January 31, 2016 or sooner upon the death of either party. Further, the court stated

that it “will not retain jurisdiction except to terminate [spousal support] * * *.”

{¶3} Jennifer failed to comply with various orders set forth in the divorce decree

and separation agreement. As a result, Philip filed numerous motions and supplements

to show cause and compel Jennifer’s compliance. Following a hearing, the magistrate

recommended that Jennifer be found in contempt of court and sentenced to 30 days in

jail with purge conditions. The magistrate also recommended awarding Philip attorney

fees. Jennifer filed objections to the magistrate’s decision. The court overruled her

objections and adopted the magistrate’s decision, with minor changes, on January 13,

2011. The court sentenced Jennifer to 30 days in jail, fined her $250, and awarded

Philip a judgment against Jennifer in the amount of $5,000 for his attorney fees. The

sentence was stayed on the condition that Jennifer purge herself of contempt by dates

specified in the order.

2 {¶4} Jennifer continued to fail to abide by court orders, including the finding of

contempt order. Thus, Philip filed numerous motions to impose a jail sentence.

Following a hearing on November 1, 2011, the court concluded that Jennifer failed to

purge herself of contempt and did not present sufficient justification for failing to do so.

In a judgment entry dated November 2, 2011, the trial court sentenced Jennifer to 30

days in jail and suspended Philip’s spousal support obligation for 16 months

commencing December 1, 2011. The court ordered that the sum of $334 shall be

applied each month towards Jennifer’s obligation to pay Philip’s attorney fees as

previously ordered by the court. Jennifer filed an appeal and raises the following

assignments of error:

{¶5} “[1.] The trial court erred and abused its discretion in finding appellant in

contempt of court and imposing a thirty day jail sentence.

{¶6} “[2.] The trial court erred and abused its discretion in modifying the non-

modifiable spousal support award contained in the judgment entry of divorce.

{¶7} “[3.] The trial court erred and abused its discretion in attaching appellant’s

spousal support for the payment of a judgment/debt.”

{¶8} In her first assignment of error, Jennifer argues the trial court abused its

discretion in finding her in contempt of court and imposing a 30-day jail sentence.

Jennifer maintains it was impossible for her to fully perform and that she substantially

complied with the purge order to the best of her financial ability.

{¶9} A reviewing court must uphold the trial court’s decision in a contempt

proceeding absent a showing that the court abused its discretion. Nolan v. Nolan, 11th

Dist. No. 2007-G-2757,

, citing Winebrenner v. Winebrenner, 11th

3 Dist. No. 96-L-033,

, *7 (Dec. 6, 1996), citing State ex rel.

Celebrezze v. Gibbs,

(1991). The term “abuse of discretion” is

one of art, “connoting judgment exercised by a court, which does not comport with

reason or the record.” State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-

2089, ¶30, citing State v. Ferranto,

(1925).

{¶10} The Second Appellate District also adopted a similar definition of the

abuse-of-discretion standard: an abuse of discretion is the trial court’s “failure to

exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. No.

09-CA-54,

, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev. 2004) 11.

When an appellate court is reviewing a pure issue of law, “the mere fact that the

reviewing court would decide the issue differently is enough to find error (of course, not

all errors are reversible. Some are harmless; others are not preserved for appellate

review). By contrast, where the issue on review has been confined to the discretion of

the trial court, the mere fact that the reviewing court would have reached a different

result is not enough, without more, to find error.” Id. at ¶67.

{¶11} In

this court further stated:

{¶12} “‘The party asserting a show cause motion has the burden to prove that a

breach has occurred by clear and convincing evidence.’

. ‘Clear and

convincing evidence’ has been defined as ‘that measure or degree of proof which is

more than a mere ‘‘preponderance of the evidence,’’ but not to the extent of such

certainty as is required ‘‘beyond a reasonable doubt’’ in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established. Ohio State Bar Assn. v. Reid,

(1999).’

4 {¶13} “‘A prima facie showing of civil contempt exists when the moving party * * *

produces evidence of nonpayment * * *. Then, the burden shifts to the alleged

contemnor to establish any defense he may have for nonpayment.’ Winebrenner,

supra, at *8. * * *

{¶14} “‘Impossibility of performance is a valid affirmative defense to a contempt

charge.’ Bertolone v. Bertolone, 11th Dist. No. 2001-L-001,

, citing

Bean v. Bean (1983),

, 363 * * *. ‘The party raising the affirmative

defense has the burden to prove that defense.’ Bertolone, at P3. * * *

{¶15} “Also, ‘* * * a person charged with contempt for the violation of a court

order may defend by proving that it was not in his power to obey the order.’ Courtney v.

Courtney (1984),

, 334 * * *.”

.

{¶16} Accordingly, Philip, as the moving party, had the burden of establishing a

breach of Jennifer’s obligations by clear and convincing evidence. In turn, the burden

shifted to Jennifer, as the contemnor, to establish any defense she may have had for

nonpayment. For the reasons that follow, upon review, we find the sentence imposed

by the trial court is within its authority and is not disproportionate to Jennifer’s conduct.

R.C. 2705.05(A)(1).

{¶17} In an order dated January 13, 2011, the court found Jennifer guilty of

contempt because of her failure to: (1) pay Philip $192, the amount seized by Fifth Third

Bank, (2) deliver the red shovel and a 36-inch Sony or Toshiba flat-screen television to

Philip’s attorney’s office, (3) pay the $340 balance for the children’s counseling to Dr.

Hill-Newby, (4) bring and keep the Fifth Third home equity loan current, and (5) list the

Downing Drive property for sale.

5 {¶18} As stated previously, in its January 13, 2011 order, the court sentenced

Jennifer to 30 days in jail, fined her $250, and awarded Philip a judgment against

Jennifer in the amount of $5,000 for his attorney fees. The sentence was stayed on the

condition that Jennifer purge herself of contempt by (1) paying $192.06 to Philip within

30 days, (2) delivering to Philip’s attorney’s office within 10 days the red shovel and a

36-inch flat-screen Sony or Toshiba television, (3) paying within 30 days $340 to the

children’s counselor and paying in full all delinquent and past due charges on the Fifth

Third Bank home equity line of credit account, (4) signing a listing agreement within 10

days with real estate agent Greg Pernus at a price recommended by him, (5) and

paying $5,000 in attorney fees to Philip in monthly installments of $500 or more

beginning 30 days after entry of the court’s January 13, 2011 judgment.

{¶19} Jennifer alleges that she did “all that she was able to do,” and that she

substantially complied with the purge order. However, her testimony during the

November 1, 2011 hearing contradicts her allegations. During the hearing, Jennifer was

questioned about each of the items at issue and her compliance with the court’s

deadlines and specific directions regarding the same.

{¶20} With respect to each of the items enumerated above, Jennifer admits that

she did not timely comply with the court’s ordered deadlines. A television was delivered

to Philip’s attorney in September, 2011, nearly nine months after the date specified in

the court’s order. The television appeared to have been damaged, contrary to the

court’s order that it be in “good condition.” Jennifer testified that she mailed the shovel

on June 30, 2011, six months after the court’s deadline, and admitted she had

purchased it rather than it being the shovel identified in the divorce decree. Philip

6 testified that he had attempted to remove the shovel from the home on the date and

time instructed by the court, but was prevented from doing so by Jennifer.

{¶21} With respect to the house, Jennifer was instructed to list it with a Howard

Hanna agent by the name of Greg Pernus at a price he recommended within 10 days of

the court’s January 13, 2011 order. However, Jennifer claimed during the hearing to

have signed a listing contract with Howard Hanna on October 23, 2011, with Ms. Mary

Sue Murray. Thus, not only did Jennifer not timely comply with the listing deadline, she

did not list the home for sale with the proper court-ordered agent nor at the price he

specified.

{¶22} Jennifer admits that she did not make the $192.06 payment to Philip, nor

did she pay any sum toward the $5,000 in attorney fees. Regarding the $340 balance

owed to the children’s counselor, Jennifer admitted that she did not timely make a lump

sum payment within 30 days of the court’s order, but instead, offered to pay the balance

owed in $5 installments. The offer was rejected by Dr. Hill-Newby.

{¶23} With respect to the Fifth Third Bank home equity loan, Jennifer testified

that she received notification from Fifth Third that the loan had been charged off as

delinquent as of August 4, 2011. Thus, Jennifer did not comply with the court’s order to

keep the loan current.

{¶24} Based on the foregoing record evidence, Jennifer failed to comply with the

terms, conditions, and specified dates in the purge order. Jennifer was required, but

failed, to make good faith efforts to comply with court orders. See, Campbell v. Pryor,

5th Dist. No. 2010CA00231,

. While Jennifer testified that her

expenses exceeded her income, thus allegedly making it impossible for her to comply

7 with the purge order, she admitted that had she sold the house, she would have had the

income necessary to meet the other financial obligations outlined in the purge order.

However, as noted, she was 10 months late in listing the house. Therefore, any

“impossibility” with compliance was created by Jennifer’s own actions.

{¶25} The evidence also showed that Jennifer used a portion of her income for

entertainment and her and the children’s athletic activities, which were not priority

expenditures in view of the court’s deadlines regarding her obligations to Philip. In sum,

Jennifer failed to purge herself of contempt and failed to present sufficient justification

for not doing so.

{¶26} Unsupported claims of financial difficulties are insufficient to satisfy a

contemnor’s burden. See Pettit v. Pettit, 8th Dist. No. 64582,

, *12 (Apr. 23, 1993); See also, Rinehart v. Rinehart,

(3d

Dist. 1993). Because Jennifer failed to present a valid defense, the court properly found

that she failed to meet her burden. Moreover, some of her other failures were not a

function of financial inability. The court did not abuse its discretion in finding Jennifer in

contempt of court and imposing a 30-day jail sentence.

{¶27} Jennifer’s first assignment of error is without merit.

{¶28} In her second assignment of error, Jennifer contends that the trial court

abused its discretion in modifying the “non-modifiable” spousal support award contained

in the divorce decree, in violation of R.C. 3105.18(E). Jennifer alleges the court lacked

jurisdiction in modifying Philip’s monthly spousal support obligation for a period of 16

months.

8 {¶29} R.C. 3105.18(E) states in part: “* * * if a continuing order for periodic

payments of money as spousal support is entered in a divorce * * * action that is

determined on or after January 1, 1991, the court that enters the decree of divorce * * *

does not have jurisdiction to modify the amount or terms of the * * * spousal support

unless the court determines that the circumstances of either party have changed and

unless * * *:

{¶30} “(1) In the case of a divorce, the decree or a separation agreement of the

parties to the divorce that is incorporated into the decree contains a provision

specifically authorizing the court to modify the amount or terms of * * * spousal support.”

{¶31} As stated, the divorce decree ordered Philip to pay spousal support to

Jennifer in the amount of $334 per month, plus a two percent processing charge, for 84

consecutive months commencing on February 5, 2009. The decree stated that all

payments shall terminate on January 31, 2016, or sooner upon the death of either party.

The court retained jurisdiction to terminate the spousal support award. Also, as

previously noted, the separation agreement incorporated into the divorce decree stated

that the court shall not retain jurisdiction to modify the spousal support award except to

terminate.

{¶32} Contrary to Jennifer’s assertions, the court did not modify the spousal

support award. Rather, in its November 2, 2011 judgment, the court suspended Philip’s

spousal support obligation for 16 months, instead ordering the sum of $334 to be offset

each month against Jennifer’s obligation to pay Philip’s attorney fees as previously

ordered by the court. Thus, the trial court did not order a modification of the support

obligation, but instead, ordered a setoff of the parties’ joint obligations to one another.

9 {¶33} “The Ohio Supreme Court defined the right to setoff as ‘that right which

exists between two parties, each of whom under an independent contract owes a

definite amount to the other, to set off their respective debts by way of mutual decision.’”

Gibbons v. Southern Ohio Kitchens, 12th Dist. No. CA2003-07-072,

, quoting Witham v. South Side Building & Loan Assn.,

(1938).

{¶34} “A trial court’s authority to set off one judgment against another involving

the same parties is a well established equitable principle * * *.” Jones v. Jones, 4th Dist.

No. 07CA25,

. ‘‘A set-off, whether legal or equitable, must relate to

cross-demands on the same right, and when there is mutuality of obligations.’’

. “A court may order an ex-spouse’s current support obligations to be set off

against the other ex-spouse’s arrearages.” Krause v. Krause,

,

paragraph one of the syllabus (12th Dist. 1987). See also Dilley v. Dilley, 11th Dist. No.

2010-G-2957,

, ¶12; Gallo v. Gallo, 11th Dist. No. 90-L-14-013,

, *1-2 (offsetting support payments against arrearages between

spouses). “A trial court’s decision to set off the parties’ judgments is within the sound

discretion of the court and will not be disturbed on appeal absent an abuse of

discretion.” Krause at paragraph two of the syllabus.

{¶35} Jennifer exhibited a history of failing to comply with court orders. The

court credited future spousal support payments of Jennifer to effect the payment of

monies owed by Philip in order to set off their respective debts to one another. See

. The court did not abuse its discretion in ordering the offsetting of

Philip’s monthly spousal support obligation for a period of 16 months.

10 {¶36} Jennifer’s second assignment of error is without merit.

{¶37} In her third assignment of error, Jennifer argues the trial court abused its

discretion in “attaching” her monthly spousal support and applying the payment to her

obligation to pay Philip’s attorney fees, in violation of R.C. 2329.66(A)(11).

{¶38} Jennifer characterizes the previously discussed offset as an attachment

under R.C. 2329.66(A)(11). However, the legal concept of “attachment” is inapplicable

to the facts presented.

{¶39} “Attachment has been defined as ‘a provisional auxiliary remedy, created

by statute, whereby a creditor can obtain a contingent lien on property of the debtor,

and thus have this property kept available to satisfy any judgment which he may recover

against the debtor ( * * *).’ Oleck, Debtor-Creditor Law, 30, Section 8. This court has

described attachment as ‘an execution before judgment (* * *).’” (Emphasis added)

Columbus Finance, Inc. v. Howard,

, fn. (1975).

{¶40} In the present case, the court did not “attach” Jennifer’s earnings or

support to pay an unrelated debt. Neither Philip’s support obligation nor Jennifer’s

attorney fee obligation were used as security for a potential judgment. Rather,

judgment had already been ordered against Jennifer, and the trial court was merely

exercising its previously described right to satisfy a judgment already rendered using

the remedy of setoff of mutual obligations. As set forth in our analysis under Jennifer’s

second assignment of error, the trial court properly credited future spousal support

payments of Jennifer to effect the payment of monies owed by Philip.

{¶41} Jennifer’s third assignment of error is without merit.

11 {¶42} For the foregoing reasons, appellant’s assignments of error are not well-

taken. It is the judgment and order of this court that the judgment of the Geauga County

Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.

12