[Cite as Hetterick v. Hetterick,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

RALPH T. HETTERICK, :

Plaintiff-Appellant, : CASE NO. CA2012-02-002

: OPINION - vs - 1/7/2013 :

ROBERTA A. HETTERICK n.k.a. : Clonch, et al., : Defendants-Appellees. :

APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. DRA 2005 0543

John Woliver, 204 North Street, Batavia, Ohio 45103, for plaintiff-appellant

L. Patrick Mulligan & Associates, L.P.A., L. Patrick Mulligan, 225 West Court Street, Cincinnati, Ohio 45202, for defendants-appellees, Roberta A. Hetterick and Monica Harless

George A. Katchmer, 1886 Brock Road, N.E., Bloomingburg, Ohio 43106, for defendant- appellee, Heather Hetterick

PIPER, J.

{¶ 1} Plaintiff-appellant, Ralph Hetterick, appeals a decision of the Brown County

Court of Common Pleas, Domestic Relations Division, finding him in contempt for failing to

pay college-related expenses as ordered in a divorce decree. Brown CA2012-02-002

Statement of Facts

{¶ 2} Ralph (Father) and Roberta (Mother) Hetterick were married in 1981, and had

two children born issue of the marriage. Father and Mother divorced in 2005, at which time,

both children were emancipated. Within the parties' Separation Agreement, Father agreed to

be "solely responsible for payment of the college expenses of the two children of the parties *

* *." Father further agreed to hold Mother harmless on the children's student loan debt that

existed at the time of the separation, as well as "future college expenses for each of the two

children, not to exceed 4 years."

{¶ 3} The Separation Agreement also contained an incorporation clause,

incorporating the agreement regarding college expenses into the divorce decree. Within that

incorporation clause, the parties agreed that Father's obligation regarding the college

expenses was limited to a total of four years for each child and that the older child, Monica,

had already completed three years of college so that Father "shall pay for 1 additional year."

At the time of the agreement, Heather, the younger child, was a freshman in college and

Father was obligated to pay for "3 ½ years" of her college expenses.

{¶ 4} Father initiated several federal loans designed for parents in order to pay for the

college expenses. While Monica did not finish college, and instead got married and began

having children, Heather began taking general-course classes at the University of Cincinnati,

Clermont campus. Although Heather had been accepted into a school in New York, she

agreed to stay in Ohio so that she could live with her grandparents and save her father

money on room and board. Heather would initiate loans in her name that were intended for

students, and either pay for books or give the money to Father to pay on the overall college

expenses. The first few years of Heather's college experience passed without much incident.

{¶ 5} However, when Heather began the final years of her schooling, Father refused

to take out additional loans to pay for summer courses and a trip to France that Heather -2- Brown CA2012-02-002

needed in order to complete her degree in Marketing and International Business. Heather

first informed her father of her intention to take summer classes in order to ensure her

graduation within four years. However, Father told her that he was not going to pay for

college courses during the summer. Heather also informed Father that she was required to

study abroad as part of the curriculum for International Business, and that she was going to

France. Father also refused to pay for the study abroad program. In addition to the student

loans she had already taken out in her own name for college expenses, Heather was forced

to take out loans in her own name to pay for the summer classes, as well as the study

abroad program. Heather graduated from college and became liable on the student loans

she procured in her own name, and those she procured in order to pay for summer school

and the study abroad program.

{¶ 6} Also during this time, Mother received multiple calls from Great Lakes, the

servicer of Monica's student loans, stating that loan payments were not being made. Mother

informed Great Lakes that Father was under a court-ordered obligation to pay for the loans,

and to hold her harmless. While Father paid the loan payments, he did so sporadically and

the payments were often late. Nonetheless, Mother did not pay a single loan payment, and

Father continued to make payments.

{¶ 7} When Mother received more phone calls from Great Lakes, she filed a show

cause motion, alleging that Father was in contempt for not paying the loans as ordered in the

Separation Agreement and divorce decree. Mother also asserted that her credit rating had

suffered because of Father's late payments, and that she was unable to receive financing for

her own educational endeavors as a result.

{¶ 8} Monica and Heather were granted leave to join in the contempt motion. Monica

asserted that Father's failure to pay on the loan for her college expenses negatively impacted

her credit, that she and her husband were unable to obtain a mortgage with favorable interest -3- Brown CA2012-02-002

rates, and that she had been unable to refinance her home to a more favorable interest rate.

Heather asserted that Father failed to pay for the loans in her name, including those taken

out to pay for the summer courses and the study abroad trip, and that his failure to do so was

impacting her credit negatively because evidence of default appeared on her credit report.

Heather also produced evidence that she had been forced to make payments on the loans in

her name to stop the negative impact on her credit.

{¶ 9} A magistrate held a hearing on the joint motion to show cause, at which Mother,

Monica, Heather, and Father testified and submitted evidence regarding the loans, payments

made, and outstanding balances that were due and owing. The magistrate found that Father

failed to pay all of the college expenses as ordered in the divorce decree. The magistrate

further found that Mother's credit had been harmed, but that Monica's credit rating had been

harmed by other factors not limited to Father's late payment history. The magistrate also

found that Father was required by the divorce decree to pay for Heather's college expenses,

which included the loans Heather took out in her own name, as well as the loans Heather

procured for the summer courses and study abroad trip.

{¶ 10} The magistrate, finding Father in contempt, ordered that Father serve 30 days

in jail, and suspended that sentence provided that Father comply and pay the college

expenses as ordered. Within the orders, Father was required to bring current all the student

loan payments, as well as pay Heather directly for the amounts she had paid toward her

student loans. Father was also ordered to pay attorney fees to Mother and Heather. The

magistrate ordered that Father was required to comply with the orders within six months, or

serve the 30-day sentence.

{¶ 11} Father filed objections to the magistrate's decision, arguing that the magistrate

erred in finding that he had failed to pay all of Heather's college expenses, and by finding that

Mother's credit had been harmed as a result of his failure to pay the loans on a timely basis. -4- Brown CA2012-02-002

The trial court overruled Father's objections, and adopted the magistrate's decision in full.

{¶ 12} Father appealed the decision of the trial court, and this court asked each party

to file supplemental briefs regarding whether the finding of contempt was a final appealable

order, specific to this court's previous decision in Dudley v. Dudley, 12th Dist. No. CA2010-

05-114,

. In Dudley, the majority determined that the finding of contempt was

not a final appealable order because the punishment was set for execution at a future date,

giving the party time to first purge before the jail sentence was executed. The parties

complied with this court's request, both arguing that the matter was final and appealable.

Before addressing the merits of the appeal, we will address the final appealable order issue.

Final Appealable Order

{¶ 13} Appellate courts have jurisdiction over judgments or "final orders." Section

3(B)(2), Article IV, Ohio Constitution, and R.C. 2505.03(A). Final orders are those that

dispose of the whole case or some separate and distinct subdivision of it while leaving

nothing for future determination. VIL Laser Sys., L.L.C. v. Shiloh Indus., Inc.,

,

, ¶ 8. Before a finding of contempt of court constitutes a final

appealable order, two elements must exist: (1) a finding of contempt, and (2) the imposition

of a penalty or sanction. State ex rel. Doe v. Tracy,

(12th Dist. 1988).

{¶ 14} As previously stated, this court addressed a similar issue regarding contempt in

Dudley v. Dudley, and dismissed the case for lack of a final appealable order because the

trial court gave the appellant the opportunity to purge himself of the contempt by paying what

he owed. The majority determined, "to finalize the order, the trial court needed to find that

[appellant] failed to purge himself and then actually impose the penalty or sanction. Because

the trial court failed to do so, the May 7, 2010 order is still conditional and not ripe for review."

.

{¶ 15} The dissent in Dudley reasoned that the trial court's finding of contempt was not -5- Brown CA2012-02-002

a conditional punishment because appellant was given a definite sentence and was found to

be in continuing contempt. Further, the trial court's wording indicated that no further

proceedings were necessary before executing the contempt punishment. Recently, the

Eighth District Court of Appeals released a decision that comports with the reasoning offered

by the dissent in Dudley. Briggs v. Moelich, 8th Dist. No. 97001,

.

{¶ 16} In Briggs, a unanimous Eighth District determined that the trial court properly

found appellant in contempt, and that the order was final and appealable. The trial court

found appellant in contempt for failing to comply with court orders regarding property division

following a divorce. The trial court sentenced appellant to 30 days in jail "subject to certain

purge conditions." Id. at ¶ 3. These conditions included: delivering to appellee the items of

personal property awarded to him; paying appellee $3,848.49 for interference with the sale of

the marital property; obtaining a replacement title to a boat and delivering such to appellee;

and paying appellee's attorney fees. All of the conditions had to be complied with within 45

days of the journalization of the court's entry. In addition to the terms, the court also ordered

that if appellant failed to comply with the purge conditions, she would have to pay a final

judgment in favor of appellee for $15,848.49 and also serve a 30-day jail sentence.

{¶ 17} The Eighth District found that the mere adjudication of contempt of court is not

a final appealable order when the court defers the imposition of punishment for contempt.

However, the fact that the opportunity to purge is pending does not render the order unripe

for review when the contempt order includes the imposition of a penalty or a sanction. The

trial court's order in Briggs included an order of contempt and the imposition of a penalty and

a sanction, mainly the 30-day jail sentence and monetary sanction for attorney fees and

appellant's failure to comply with the purge conditions.

{¶ 18} Other courts have found that a contempt finding paired with an imposition of

sentence to be a final and appealable order. The Fourth District Court of Appeals considered -6- Brown CA2012-02-002

whether a finding of contempt was a final appealable order, and determined that it was a final

appealable order because a sentence was imposed even though the contemnor was given a

chance to purge the contempt before the sentence would be executed. Davis-Wright v.

Wright, 4th Dist. No. 09CA1,

. The Davis-Wright court determined that the

trial court's sentence was imposed regardless of the opportunity to purge because "no further

proceedings are necessary or contemplated before the jail sentence is to be imposed." Id. at

¶ 8. Similarly, the Ninth District Court of Appeals determined that a finding of contempt was a

final appealable order once the trial court imposed a jail sentence. Noll v. Noll, 9th Dist. No.

03CA008216,

. The Noll court found that the imposition of jail time,

notwithstanding the ability to purge, made the cause final and appealable.

{¶ 19} Part of the analysis of both the Davis-Wright and Noll courts focused on the fact

that the imposition of a jail sentence affects a substantial right, and that according to R.C.

2505.02(B)(1), an order must affect a substantial right in order to be final and appealable.

We agree with the reasoning of the Fourth, Eighth, and Ninth District Courts, as discussed

above, as well as the position espoused by both parties to the current action.1 We find that a

contempt finding paired with an imposition of a sentence or sanction constitutes a final

appealable order regardless of the opportunity to purge the contempt. Therefore, we

overrule our decision in Dudley.

{¶ 20} Our reasoning in Dudley essentially forced litigants in contempt actions to

choose one of two options: (1) disobey a purge order and face immediate incarceration, or

(2) comply with the order and forfeit a meaningful appeal even though the party believes that

1. While not directly on point, we are also guided by the Ohio Supreme Court's decision in State v. Smith,

,

. There, the court found that the review of a trial court's failure to notify a defendant that his failure to pay court costs would result in an imposition of community service is ripe for review even if the defendant had not yet paid for the fees or been ordered to perform community service as a result of the failure to pay. Instead, the court found that the issue becomes ripe for review upon the date of the trial court's sentencing entry. -7- Brown CA2012-02-002

the order was wrongly imposed. Dismissing an appellant's appeal for lack of a final

appealable order under these and similar circumstances would effectively deny the ability to

seek judicial review of the trial court's decision, thus forcing an appellant to waive the right to

purge himself of the contempt finding, as he would first have to disobey the order before

being permitted to obtain appellate review. We do not believe this is the proper course, and

instead, seek to determine the merits of a case whenever possible, especially when one's

substantial rights are implicated.

{¶ 21} The record here is clear that the trial court found Father in contempt, and

imposed a sentence on him for his contempt, 30 days in jail. The fact that the court gave

Father six months to comply with its order in order to purge the contempt, however, did not in

any way negate or eliminate the 30-day sentence. There is no indication in the record that

any action other than Father's failure to purge would be necessary before the 30-day

sentence is executed. Therefore, the finding of contempt and the imposition of the sentence

has rendered this cause final and appealable. Therefore, we will now address Father's

assignments of error.

College Expenses

{¶ 22} Assignment of Error No. 1:

{¶ 23} THE TRIAL COURT ERRED BY REWRITING THE TERMS OF THE

PROPERTY DIVISION OF THE DECREE OF DIVORCE.

{¶ 24} Father argues in his first assignment of error that the trial court erred by finding

the loans procured to pay for summer classes and Heather's study abroad trip to be college

expenses.

{¶ 25} "A separation agreement is a contract, and is subject to the same rules of

construction as other contracts." Wittstein v. Wittstein, 12th Dist. No. CA2006-03-013, 2006-

Ohio-6707, ¶ 8, citing Forstner v. Forstner,

(11th Dist. 1990). -8- Brown CA2012-02-002

Where the terms of a separation agreement are clear and unambiguous, the words used

must be given their plain and ordinary meaning and a court must give effect to the

agreement's expressed terms.

"Contract terms are ambiguous where the language is

susceptible to two or more reasonable interpretations." Id. at ¶ 8.

{¶ 26} "When enforcing a separation agreement incorporated into a divorce decree, a

trial court has authority to hear the matter, clarify confusion over the interpretation of any

particular clause, and resolve the dispute." Key v. Key, 12th Dist. No. CA99-08-020,

, *2 (July 3, 2000). "Additionally, provisions of separation agreements relating to

support, maintenance and education of children are to be given a reasonable interpretation,

so as to give effect to the intention of the parties." Uram v. Uram,

(9th

Dist. 1989).

{¶ 27} Father argues that the clause in the Separation Agreement, as incorporated

into the divorce decree, is clear and unambiguous because his obligation was to pay the

college expenses for his children for four years. Father asserts that because he paid for

Heather's room and board and tuition, or continues to pay on the loans, he has fulfilled his

obligation. However, the trial court interpreted the divorce decree and found that the term

"college expenses" included all loans Heather incurred in her own name that went to pay for

college expenses. These loans included amounts that Heather gave her father toward

tuition, as well as monies to pay for college courses during the summer and the study abroad

trip to France. We agree with the trial court that these loans are college expenses that

Father is obligated to pay.

{¶ 28} Father and Mother's Separation Agreement and divorce decree states that

Father would be responsible for payment of "the college expenses of the two children of the

parties * * * not to exceed 4 years." The Separation Agreement then went on to state that

Father's obligation to pay the college expenses was limited to four years for each child, or -9- Brown CA2012-02-002

one remaining year for Monica and three and one-half for Heather. Beyond the specific time

frame set forth, the Separation Agreement does not limit the college expenses to only fall,

winter or spring terms, nor does it limit what kind of expenses the obligation covers. See

Uram,

, (limiting "college costs" to tuition, fees, and books because

"college expenses" was defined in the divorce decree as tuition, fees, and books).

{¶ 29} During the hearing, Heather testified that she initiated loans in order to pay for

her college education, and that she needed to take the summer courses so that she could

transfer from the Clermont campus to the main University of Cincinnati (UC) campus and be

on the proper time table to graduate in four years. Heather also testified that as part of the

International Business curriculum, she was required to take a course overseas. Heather's

testimony was supported by an exhibit stating that UC's curriculum required that "students

must also complete a study abroad or other qualifying significant international experience * *

*." The charge for the study abroad program was no greater than the tuition that would have

been charged had Heather taken courses regularly at UC.

{¶ 30} The term "college expenses" as stated in Father and Mother's Separation

Agreement, lacking any further definition or clarification from the parties, was open to

reasonable interpretation because Father did not expressly state what his intention was

regarding the future obligation to pay for his daughters' college education save that the

expenses were limited to a specific number of years. Had Father not intended to pay for

summer classes, he should have included that term in the Separation Agreement. So too

should Father have included a statement that he would not be obligated to pay for college

expenses if those expenses included a study abroad program or otherwise required Heather

to procure loans in her own name. The only clarification or express term Father included was

that the education be limited to four years for each child. The record is clear that Heather

graduated in four years, after having taken all necessary courses to graduate within that time - 10 - Brown CA2012-02-002

frame, and Father is required to pay the college expenses she incurred while pursuing her

degree at UC within four years.

{¶ 31} Having found that the trial court properly determined that the loans taken in

Heather's name were college expenses to be paid by Father, Father's first assignment of

error is overruled.

Contempt

{¶ 32} Assignment of Error No. 2:

{¶ 33} THE TRIAL COURT ERRED BY HOLDING APPELLANT IN CONTEMPT AND

ORDERING APPELLANT TO PAY ATTORNEY FEES.

{¶ 34} Father argues in his second assignment of error that the trial court erred in

finding him in contempt and in ordering him to pay attorney fees.

{¶ 35} Contempt of court is defined as "disobedience of an order of a court * * * which

brings the administration of justice into disrespect, or which tends to embarrass, impede or

obstruct a court in the performance of its functions." Sparks v. Sparks, 12th Dist. No.

CA2010-10-096,

, ¶ 11, quoting Windham Bank v. Tomaszczyk,

, paragraph one of the syllabus (1971). To support a contempt finding, 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.

Ossai-Charles v. Charles, 12th Dist. Nos. CA2010-12-129, CA2011-01-007,

,

¶ 30.

{¶ 36} Father was found to be in civil contempt for his failure to pay the college

expenses. "The distinction between civil and criminal contempt depends upon the character

and purpose of the sanctions imposed." Mackowiak v. Mackowiak, 12th Dist. No. CA2010-

04-009,

, ¶ 38. Where the sanctions imposed are primarily for reasons

benefiting the complainant and are remedial and coercive in nature, the contempt is civil in - 11 - Brown CA2012-02-002

nature. Id. at ¶ 39. "Prison sentences imposed as punishment for civil contempt are

conditional, and the contemnor is said to carry the keys of his prison in his own pocket due to

the fact that his compliance with the court order secures his freedom." Whittington v.

Whittington, 12th Dist. No. CA2011-06-065,

, ¶ 23.

{¶ 37} A trial court's finding of civil contempt will not be disturbed on appeal absent an

abuse of discretion.

. An abuse of discretion constitutes more than an

error of law or judgment; it requires a finding that the trial court acted unreasonably,

arbitrarily, or unconscionably. Miller v. Miller, 12th Dist. No. CA2001-06-138, 2002-Ohio-

3870, ¶ 8.

{¶ 38} In order for the trial court to hold Father in contempt, there must have been

clear and convincing evidence that an order existed, that Father had knowledge of the order,

and that he violated the order. The evidence deduced at trial demonstrated that the order to

pay college expenses existed and that Father violated the order by not paying for the

expenses. However, there is not clear and convincing evidence that Father was aware of the

order as it related to what exact college expenses were due and owing.

{¶ 39} During Heather's testimony, she admitted that she did not give Father the bills

for the loans that were in her name and that she never forwarded the invoices to her father.

During cross-examination, the following exchange occurred.

[Q] Have you ever presented any of these bills to your father and told him he's obligated to pay them?

[A] No.

***

[Q] How about the Chase Bank Loan?

[A] Not after he refused to pay it.

[Q] Okay.

- 12 - Brown CA2012-02-002

[A] I took it upon myself.

[Q] So you’ve never presented any of these three documents to him and said, You [sic] have to pay them?"

[A] Why would I if he refused the first time?

[Q] I get to ask the questions. Have you presented them to him or not?

[A] No.

[Q] No?

[A] No.

{¶ 40} This exchange demonstrates that Father did not have any knowledge as to the

total amount of the college expenses due and owing regarding the loans taken out in

Heather's name. With Heather as the only signator on each loan, Father would not have any

access to the amount that was ultimately borrowed, what payments were owed, where to

send the payments, or even who loaned Heather the money. Heather had to have first

presented the bills to Father before it can be said that he knew what was due and what

payments he was ordered to make.

{¶ 41} This court is aware of the fact that Heather did present the idea and her

intention to take summer courses and study abroad. Father does not deny the fact that he

told Heather that he would not be responsible for these bills should Heather choose to follow

through on her plans. However, such does not change the fact that Father remained

unaware of what loans Heather ultimately incurred, or how he could have paid them if he had

changed his mind and chosen to obey the court's order. Heather was of the opinion that

giving her father the bills was an exercise in futility because of his previous statement that he

would not pay. However, from a legal standpoint, Father should have been presented the

bills thereby leaving the decision of compliance up to Father. Actual presentation of the

expenses for which reimbursement was sought would have clearly defined Father's ultimate - 13 - Brown CA2012-02-002

response – to pay or not to pay. According to the legal standard, to support a finding of

contempt, Father needed to disobey an order of the court, not merely a request from his

daughter.

{¶ 42} As one court has stated,

it is necessary to have a prior violation. Prior to the disobedience, the request for a finding of contempt is merely prospective in nature, as it presumes that the party will violate the court order without any affirmative act to support the claim. There is no doctrine of anticipatory contempt in our legal system. An adjudication of contempt relates to past conduct, not prospective conduct. Prior to the end of the time for performance, any alleged failure to perform is speculation and cannot be the basis for a contempt finding. To hold otherwise would result in the dockets of the courts being filled with antagonistic parties filing motions to show cause merely because they believe the other party is going to violate the court's orders.

Kirk v. Kirk,

,

(3rd Dist.). (Internal citations

omitted.)

{¶ 43} Having found in the first assignment of error that the trial court properly found

that Father was required to pay for the loans in Heather's name as valid college expenses,

there is no doubt that Father has an obligation to pay the amounts owed. However, we

cannot say that Father was in contempt for not paying, as he was not presented the

opportunity to pay the bills or given the requisite information necessary to pay them. Heather

must present Father with the pertinent invoices and payment information, and Father shall

pay according to the court order requiring him to do so.

{¶ 44} The magistrate also found Father in contempt for failing to pay Monica's loans,

which were also in Mother's name, thereby harming Mother's credit rating. The record

indicates that due to Father's failure to pay Monica's loans in a timely and consistent manner,

Mother's credit suffered. Mother testified that as a result of her decreased credit rating, she

could not obtain the necessary financing to allow her to seek her own educational goals.

- 14 - Brown CA2012-02-002

Unlike Heather's bills, there is no doubt that Father was well aware of the amount due and

owing, as he received several bills from Mother, and further had access to Monica's loan

information. Therefore, Father knew what exactly he was required to pay, when it was due,

where to make the payments, and the general details of the loan necessary to execute

repayment. The fact that Father chose not to consistently make payments in a timely

manner constituted disobedience of the court order requiring him to pay, and the trial court

did not abuse its discretion in finding him in contempt as related to these circumstances.

{¶ 45} The trial court awarded attorney fees based on the contempt finding which we

have determined was partly in error. Therefore, upholding the award in this case in full would

be inequitable, and we also reverse the award of attorney fees as it relates to the contempt

motion for Heather's bills. See Manker v. Manker, 12th Dist. No. CA2005-12-106, 2006-

Ohio-6545, ¶ 25. However, given our finding that Father was properly held in contempt for

failing to make timely payments on Monica's loan, the trial court must determine whether

granting attorney fees is reasonable under the circumstances, and in what amount.

{¶ 46} Father's second assignment of error is sustained in part and overruled in part.

The finding of contempt as it relates to Mother based on Father's failure to pay Monica's loan

is affirmed, as is any award for attorney fees predicated on that specific contemptuous

conduct. However, the finding of contempt as it relates to Heather's bills and the award of

attorney fees as it relates to that particular contempt finding is reversed.

{¶ 47} Judgment is affirmed as it relates to the interpretation of the divorce decree and

contempt regarding Mother and Monica's loans, and judgment is reversed as it relates to the

contempt for Heather's bills and related award of attorney fees. The cause is remanded for

the trial court to determine whether attorney fees are appropriate as it relates to the contempt

finding for failing to pay Monica's loans.

- 15 - Brown CA2012-02-002

S. POWELL, P.J., and HENDRICKSON, J., concur.

- 16 -