[Cite as Passage v. Passage,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

TERI M. PASSAGE : : Plaintiff-Appellee : Appellate Case No. 2015-CA-36 : v. : Trial Court Case No. 2013-DR-190 : JONATHAN M. PASSAGE : (Domestic Relations Appeal) : Defendant-Appellant : :

...........

OPINION

Rendered on the 18th day of March, 2016.

...........

MICHAEL A. MAYER, Atty. Reg. No. 0064079, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee

DAVID S. PETERSON, Atty. Reg. No. 0007836, ROBERT K. HENDRIX, Atty. Reg. No. 0037351, 87 South Progress Drive, Xenia, Ohio 45385 Attorneys for Defendant-Appellant

.............

WELBAUM, J.

{¶ 1} In this case, Defendant-Appellant, Jonathan Passage, appeals from a trial -2-

court judgment finding him and his ex-wife, Teri Passage, both in contempt.1 In support

of his appeal, Jonathan contends that the trial court abused its discretion by finding him

in contempt when Teri did not have clean hands. Jonathan also contends that the court

erred in ordering him to pay Teri one-half of the profits from the sale of a van, without

offsetting costs that he incurred. In addition, Jonathan contends that the trial court

abused its discretion regarding awards of attorney fees, and erred in making a post-

decree modification in the parties’ separation agreement.

{¶ 2} We conclude that the trial court erred in failing to offset the costs incurred in

selling the van. The court also erred in modifying the terms of the separation agreement

to require that the parties would each be responsible for one-half of the mortgage costs

and expenses on the marital residence until it sold. The court did not err in finding

Jonathan in contempt, or in its award of attorney fees to each party. Accordingly, the

judgment of the trial court will be affirmed in part, reversed in part, and remanded for

further proceedings.

I. Facts and Course of Proceedings

{¶ 3} In August 2013, Teri filed a complaint for divorce from Jonathan, and he then

filed an answer and counterclaim for divorce. In July 2014, the parties entered into a

separation agreement that was incorporated into a final divorce decree filed on August

12, 2014.

{¶ 4} At the time of the divorce, the parties jointly owned a marital residence

located at 1115 Stanwick Drive, in Beavercreek, Ohio. Under the terms of the separation

agreement, Teri was given the Stanwick residence, and upon the filing of the divorce

1 For purposes of convenience, we will refer to the parties by their first names. -3-

decree, she was to assume sole liability for timely paying the mortgage obligation, real

estate taxes, insurance, utilities, maintenance costs, and improvements for the home.

She was also required to hold Jonathan harmless on these obligations.

{¶ 5} Under the agreement, Teri had 90 days to refinance the mortgage and pay

Jonathan $16,000, which represented his share of the equity. If Teri were unable to

refinance, the property was to be listed for sale, and upon sale, Jonathan was to receive

the first $6,000 from the sale profits. Each party would then receive an equal share of

the profit thereafter. At the time the agreement was made, the parties contemplated that

Teri’s parents would co-sign a loan for the refinancing and would help her with a down

payment so that she could stay in the house.

{¶ 6} Difficulties quickly arose, and matters became complicated based on the

parties’ animosity towards each other and unwillingness to communicate or cooperate.

Within a few days after the decree was filed, Teri learned that she was unable to obtain

financing. She and her father began looking for property in mid to late August 2014, and

on September 5, 2014, Teri filed a notice with the court, indicating that she was relocating

to a house that her father had purchased in the area. Teri did not tell Jonathan directly

that she was vacating. Teri vacated the premises gradually, between September 20 and

October 10, 2014.

{¶ 7} Teri had been a licensed realtor since 2014. When she was unable to

refinance the loan, she contacted a realtor, Vanessa B., in mid-August 2014, and asked

for a comparable market analysis and listing presentation. Teri learned that the house

was valued at about $154,000, and that if she refinanced an additional $16,000 to pay

Johnathan, the debt to value ratio on the home would be severely undercut. Vanessa -4-

sent listing documents to Teri and Jonathan, but he refused to sign, because he wanted

to check out other realtors. He also believed that the terms of the separation agreement

prevented him from listing the property for sale until the 90-day refinancing period had

elapsed. Teri subsequently sent Jonathan an email through a court-ordered

communication system called “Our Family Wizard” (“Wizard”). She indicated that she

had made an appointment with a bankruptcy attorney since he had not agreed to sign the

listing agreement.

{¶ 8} Teri failed to pay the mortgage payments on the Stanwick property in August,

September, and October 2014, nor did she contribute to any mortgage payments or

upkeep thereafter, between the time she left and when the house was sold in March 2015.

{¶ 9} In September and October 2014, the parties discussed the possibility that

Jonathan might be interested in the Stanwick property. On October 10, 2014, they met

so that Jonathan could inspect the property. When they arrived, the parties discovered

that the utilities had been shut off and there was no electricity. When they left the house,

Jonathan asked Teri for a key to the house, but she refused to give him a key unless he

agreed in writing to take possession of the house.

{¶ 10} The following day, Jonathan sent Teri a message through Wizard, indicating

that it was impossible to inspect the property without the utilities having been turned on.

He also expressed concern about damage to the property, and asked her to fill out a

residential disclosure form, since he had not lived in the property for more than a year.

He sent Teri another message on October 17, 2014, stating that the utilities needed to be

restored and that the yard needed to be maintained. He further stated that if she did not

act, he would be required to do so, in order to protect his interest in the property. Teri -5-

did not respond.

{¶ 11} On October 20, 2014, Jonathan and his father went to the property to check

its condition and to gain entry, if necessary. In their opinion, the home looked abandoned

from the outside, with long grass, and leaves and sticks that had fallen in the yard. They

were also concerned because below-freezing temperatures had been predicted. They

called a locksmith, obtained access to the property, and changed the locks. Jonathan

also had the utilities turned back on the following day, on October 21, 2014. Three days

later, on October 24, 2014, Jonathan sent Teri a message through the Wizard, indicating

that he had changed the locks, and that he would make sure she had access to the house

if she needed it. Teri also had access to the house through a garage door opener.

{¶ 12} On October 24, 2014, Jonathan filed a motion for contempt with the trial

court, based on Teri’s alleged failure to pay the mortgage, utilities and maintenance costs;

her alleged failure to transfer household goods and photos to him; and her alleged failure

to pay various costs for their children. Jonathan also asked the court for an order

permitting him to occupy the marital premises pending sale, and for attorney fees and

costs. Subsequently, on October 27, 2014, Teri called the police to report that an

unwanted suspect was at her property, even though she knew at the time that it was

Jonathan. On November 3, 2014, Teri filed a motion for contempt against Jonathan,

asking the court to hold him in contempt for failing to cooperate in the sale of the

residence; for failing to split the proceeds of the sale of a 2003 van with her; and for failing

to cooperate in dividing the marital portion of certain accounts. She also asked for

attorney fees and court costs.

{¶ 13} The trial court held an evidentiary hearing on April 15, 2015. By then, the -6-

property had been sold. Jonathan also withdrew the portion of his motion relating to

unpaid costs for the children. In addition, Teri withdrew the part of her motion relating to

division of the accounts. Following the hearing, the trial court found Teri in contempt for

failing to pay the mortgage for the months of August through October 2014, and

sentenced her to 10 days in jail. She was permitted to purge the contempt by paying

Jonathan $3,717 within 90 days. The court also awarded Jonathan $1,000 in attorney

fees.

{¶ 14} In addition, the court held Jonathan in contempt for failing to give Teri her

share of the profit from the sale of the van, and sentenced Jonathan to 10 days in jail.

Jonathan was permitted to purge the contempt by paying Teri $2,850 within 90 days.

The court also awarded Teri $1,000 in attorney fees.

{¶ 15} Both sides appealed from the trial court’s decision, but Teri dismissed her

cross-appeal.

II. Application of Clean Hands Doctrine

{¶ 16} Jonathan’s First Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion by Finding Appellant

in Contempt When Appellee Did Not Have Clean Hands.

{¶ 17} Under this assignment of error, Jonathan argues that the trial court erred in

finding him in contempt concerning the sale of the van, because Teri refused to cooperate

in the sale. Specifically, she refused to turn over the title, and did not respond to a

number of communications.

{¶ 18} “Contempt of court is defined as disobedience of an order of a court. It is

conduct which brings the administration of justice into disrespect, or which tends to -7-

embarrass, impede or obstruct a court in the performance of its functions.” Windham

Bank v. Tomaszczyk,

,

(1971), paragraph one of the

syllabus. “The purpose of contempt proceedings is to secure the dignity of the courts

and the uninterrupted and unimpeded administration of justice.”

at paragraph two of

the syllabus. “Therefore, since the primary interest involved in a contempt proceeding is

the authority and proper functioning of the court, great reliance should be placed upon

the discretion of the trial judge.” (Citation omitted.) Denovchek v. Bd. of Trumbull Cty.

Commrs.,

,

(1988).

{¶ 19} “Although contempt proceedings are said to be neither civil or criminal,

courts often need to classify them as either civil or criminal.” Owais v. Costandinidis, 2d

Dist. Greene No. 2014-CA-5,

, citing

. “ ‘If

sanctions are primarily designed to benefit the complainant through remedial or coercive

means, then the contempt proceeding is civil.’ ”

quoting

.

“Normally, contempt proceedings in domestic relations matters are civil in nature because

their purpose is to coerce or encourage future compliance with the court's orders.”

(Citations omitted.) Fidler v. Fidler, 10th Dist. Franklin No. 08AP-284,

.

{¶ 20} “ ‘A prima facie case of civil contempt is made when the moving party proves

both the existence of a court order and the nonmoving party's noncompliance with the

terms of that order.’ ” Jenkins v. Jenkins,

,

, ¶ 12 (2d

Dist.), quoting Wolf v. Wolf, 1st Dist. Hamilton No. C-090587,

, ¶ 4. “A

finding of civil contempt requires clear and convincing evidence that the alleged

contemnor has failed to comply with the court’s prior orders.” (Citation omitted.) -8-

Moraine v. Steger Motors, Inc.,

,

(2d

Dist. 1996). Contempt decisions are reviewed for abuse of discretion. Jenkins at ¶ 12,

citing

.

{¶ 21} In the case before us, there is no dispute that Jonathan failed to comply with

the order in the separation agreement, which required him to split the proceeds of the van

sale with Teri. Jonathan admitted that he failed to pay Teri, but his excuse was that he

believed he could offset this amount against what she owed him on the property. This

was not his decision, however, and in disobeying a court order, he took the risk that the

court would disagree with his choice.

{¶ 22} “The unclean hands doctrine generally provides that when a party takes the

initiative to set in motion a judicial action in order to obtain some remedy, the court will

deny the remedy where the party seeking it has acted in bad faith by his or her prior

conduct.” (Citation omitted.) Gardner v. Bisciotti, 10th Dist. Franklin No. 10AP-375,

, ¶ 15. “Ohio courts have recognized that the doctrine may be applied

in domestic relations cases.” (Citations omitted.)

However, “courts have

consistently held that the unclean hands doctrine does not apply in cases where a party

has legal remedies available to address the misconduct of the party seeking the contempt

finding.” (Citation omitted.) Id. at ¶ 19.

{¶ 23} Unfortunately, neither party’s conduct in this case was exemplary. If

Jonathan felt that Teri acted improperly by failing to sign pertinent documents or

cooperating in the sale of the van, he had the remedy of filing a contempt motion with the

court. What he could not do was to unilaterally disregard the prior court order.

{¶ 24} Accordingly, the First Assignment of Error is overruled. -9-

III. Offset of Costs Regarding the Van

{¶ 25} Jonathan’s Second Assignment of Error states that:

The Trial Court Erred in Ordering Appellant to Pay One Half of the

Sales Price of the Van to Appellee, Without Offsetting the Costs Appellant

Incurred in Obtaining a Duplicate Title[,] Making Necessary Repairs, and

Advertising the Van for Sale.

{¶ 26} Under this assignment of error, Jonathan contends that the trial court erred

by failing to credit him with the costs that were incurred in connection with the sale of the

van. Again, we review contempt decisions for abuse of discretion. Jenkins, 2012-Ohio-

4182,

, at ¶ 12. An abuse of discretion “ ‘implies that the court's attitude

is unreasonable, arbitrary or unconscionable.’ ” (Citations omitted.) Blakemore v.

Blakemore,

,

(1983). However, abuses of

discretion most commonly arise from decisions that are unreasonable. DiPasquale v.

Costas,

,

,

(2d Dist.) (Citation

omitted.) “Decisions are unreasonable if they are not supported by a sound reasoning

process.”

citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp.,

,

(1990).

{¶ 27} Concerning the van, Paragraph 5 of the Separation Agreement provides

that:

The parties are joint owners of a 2003 Chevrolet Astro Van, upon

which no debt exists and that the parties agree has an approximate value

of $6,500.00. Upon the filing of a judgment Entry and Final Decree of

Divorce herein, Husband shall sell the vehicle and Wife shall cooperate in -10-

the sale and transference of certificate of title to the vehicle. Husband and

Wife shall equally divide the net proceeds from the sale of the vehicle. Until

such time as the vehicle is sold, both parties shall be equally responsible

for one-half the registration fees, insurance, and reasonable and necessary

maintenance costs.

Doc. #55, Ex. A, Separation Agreement, p. 4.

{¶ 28} The van was sold in early October 2014 for $5,700. Jonathan testified that

he incurred the following expenses in order to sell the van: $43 for a title from the Clerk

of Courts; $43 for advertising; registration expenses of $64.50 so that the van could be

driven to Lang’s Chevrolet for testing and an estimate; car insurance for a period of about

two months; and repairs that needed to be done in order to sell the car (shown on Exs. C

and J). Although Teri offered nothing to challenge these amounts, the trial court ordered

Jonathan to pay her one-half of the gross amount of the sale. This was an abuse of

discretion, as it was not supported by sound reasoning. If expenses were incurred in

selling the van, they should have been deducted, because the Separation Agreement

refers to a division of “net” proceeds. Accordingly, the Second Assignment of Error is

sustained.

IV. Attorney Fees

{¶ 29} Jonathan’s Third Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion in Awarding

$1,000.00 in Attorney Fees Without Any Testimony Whatsoever as to the

Time Expended by Her Attorney, Hourly Rate, or Reasonableness of the

Costs. -11-

{¶ 30} Under this assignment of error, Jonathan contends that the trial court erred

in awarding $1,000 in attorney fees to Teri because she failed to present any testimony

concerning the amount of fees expended for prosecution of the contempt action.

{¶ 31} Attorney fees may be awarded to parties who successfully move for civil

contempt, and the award is reviewed for abuse of discretion. State ex rel. Fraternal

Order of Police Captain John C. Post Lodge No. 44 v. City of Dayton,

,

(1977).

{¶ 32} At the contempt hearing, Teri testified that she had expended about $3,000

on attorney fees prior to the hearing. She did not present evidence as to the

reasonableness of the fees, nor were any specific details about the fees discussed.

However, we have permitted awards of small amounts of attorney fees without evidence

of reasonableness. See, e.g., Hoagland v. Hoagland, 2d Dist. Miami No. 2014-CA-30,

, ¶ 19. Thus, even in the absence of evidence of reasonableness, the

fee award would have been appropriate. In this regard, we note that Teri prevailed on

her contempt motion, and the trial court awarded only one-third of the amount expended,

which did not even include the cost of an evidentiary hearing that lasted several hours.

{¶ 33} Furthermore, Jonathan did present testimony from an attorney, who stated

that $200 per hour would be a reasonable fee for the work being performed at the hearing,

and that a normal hourly rate for attorneys in the area ranged from $150 to $350 per hour.

Using the median figure of $200 per hour, Teri was thus awarded an amount

compensating her for five hours of her attorney’s work. The case had been pending for

several months, involved pleadings, a pretrial, and discovery prior to the final hearing.

Jonathan’s own attorney fees were $2,580. Under the circumstances, the trial court’s -12-

award of $1,000 in attorney fees to Teri was not an abuse of discretion.

{¶ 34} Accordingly, the Third Assignment of Error is overruled.

V. Alleged Post-Decree Modification

{¶ 35} Jonathan’s Fourth Assignment of Error states that:

The Trial Court Erred in Making a Post Decree Modification Set Forth

in the Parties’ Separation Agreement that Had Been Incorporated into the

Final Decree of Divorce.

{¶ 36} Under this assignment of error, Jonathan contends that the trial court

improperly modified the Separation Agreement by making both parties responsible for

one-half of marital expenses after Jonathan allegedly took possession of the premises on

October 21, 2014. Teri argues that this was not a modification but was a permissible

interpretation of an ambiguous provision. She further maintains that even if the court

modified the Separation Agreement, the modification was permissible under R.C.

3105.171(I).

{¶ 37} R.C. 3105.171(I) provides that:

A division or disbursement of property or a distributive award made

under this section is not subject to future modification by the court except

upon the express written consent or agreement to the modification by both

spouses.2

{¶ 38} Before being amended in 2010, R.C. 3105.171(I) provided that “[a] division

or disbursement of property or a distributive award made under this section is not subject

2R.C. 3105.171 was amended after the divorce decree was filed, but subsection I was not changed. See Am.Sub.H.B. 64,

. -13-

to future modification by the court.” The 2010 amendments added the following

language: “except upon the express written consent or agreement to the modification by

both spouses.” See Am. Sub. H.B. 238, Section 1,

.

{¶ 39} In a decision issued before the amendments, we held that the prohibition in

R.C. 3105.371(I) was jurisdictional. McKinney v. McKinney,

,

(2d Dist. 2001). In a post-amendment decision, we considered whether

a trial court had erred in “reserving jurisdiction over the real estate.” Burke v. Burke, 2d

Dist. Champaign No. 2011-CA-2,

. We concluded that the court’s

decision was “contrary to statutory authority for division of property.”

In this regard,

we first noted that the “property division appeared to be consistent with the parties'

requests.”

We then commented that:

However, with respect to each property, the journal entry states: “The

court will retain jurisdiction over the real estate issue.” The court could not

“retain jurisdiction” over the real estate if to retain jurisdiction means

reserving the ability to modify the property division. According to the

Revised Code, “a division or disbursement of property or a distributive

award made under this section is not subject to future modification by the

court.” R.C. 3105.171(I). We have held that this prohibition is

jurisdictional. See, e.g., McKinney v. McKinney (2001),

,

. This not-subject-to-modification provision has

been amended to permit modification “upon the express written consent or

agreement to the modification by both spouses.” McConnell v. McConnell,

Champaign App. No. 09–CA–43, 2010–Ohio–4757. But there is no -14-

express written consent here. If a property division order is ambiguous,

the trial court may properly clarify its meaning without violating R.C.

3105.171(I). McKinney v. McKinney (2001),

,

. “An ambiguity exists when a provision in an order or

decree is reasonably susceptible of more than one meaning.”

,

. At this juncture, there does not appear to be an ambiguity.

Thus, the retention of jurisdiction was contrary to law.

. Accord Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31,

(holding that a trial court lacks statutory authority under R.C. 3105.171(I) “to reserve

jurisdiction to modify or alter the division of marital and separate property, including

retirement benefits, once the trial court enters the final divorce decree.”)

{¶ 40} McKinney was decided before R.C. 3105.171(I) was amended, and Burke

and Merkle both involve contested divorces, with no written agreement between the

parties. In a post-amendment case involving an agreed judgment entry, the Fifth District

Court of Appeals held that a trial court had jurisdiction to modify a qualified domestic

relations order post-decree, because the parties had mutually agreed in the agreed

judgment entry that the trial court “shall reserve and retain jurisdiction over [husband’s]

interest in the said Ariel Corporation Profit Sharing Plan to allocate (or re-allocate) all or

part of such interest to [wife] for payment of spousal support herein and, or, to satisfy any

unpaid spousal-support obligation of [husband] to [wife]. This Court further retains

jurisdiction to modify or terminate these restraining orders, for reasons the Court

determines, are just and equitable upon motion filed by [husband].” Bittner v. Bittner,

, ___ N.E.3d ___, ¶ 13-14 (5th Dist.). -15-

{¶ 41} In contrast, the First District Court of Appeals has held that a general clause

in “an agreed property settlement that granted ‘continuing jurisdiction’ to the domestic

relations court over matters set forth in the agreement” was insufficient to overcome the

statutory prohibition in R.C. 3105.171(I) against post-decree modifications. Mees v.

Mees, 1st Dist. Hamilton No. C-130459,

. In this regard, the court

of appeals focused on the statutory language in R.C. 3105.171(I). Specifically, the court

stated that:

Underlying [Appellant’s] argument is an assumption that the parties

could, through appropriate language, authorize a court to make undefined,

post-decree modifications to a property division. But that understanding is

at odds with the statutory language. By its terms, the statute requires

express consent “to the modification.” The article is important here. The

legislature did not merely insist that the parties authorize the court to modify

the agreement. Instead, it required consent to the modification. The use

of the word “the” makes it crystal clear that the parties must agree to the

actual modification itself. In this case, the proposed modification was the

change in the fee-splitting arrangement. Nowhere did the parties consent

in writing to that change.

(Emphasis sic.)

. One member of the panel dissented, contending that the

language granting continuing jurisdiction was sufficient, and that any other conclusion

would make the provision in the decree meaningless. Id. at ¶ 11 (Hendon, P.J.,

dissenting).

{¶ 42} Unfortunately, “Ohio does not maintain a comprehensive legislative history -16-

of its statutes.” (Citation omitted.) State v. South,

,

,

. Instead, courts “rely on the language the General Assembly chose

and * * * long-established rules of statutory construction.”

In this regard, the

Supreme Court of Ohio has stressed that:

The object of judicial investigation in the construction of a statute is

to ascertain and give effect to the intent of the lawmaking body which

enacted it; and, where its provisions are ambiguous and its meaning

doubtful, the history of legislation on the subject and the consequences of

a literal interpretation of the language may be considered, punctuation may

be changed or disregarded, words transposed, or those necessary to a

clear understanding, and, as shown by the context, manifestly intended,

inserted.

Slingluff v. Weaver,

,

(1902), paragraph one of the syllabus.

{¶ 43} However, “the intent of the lawmakers is to be sought first of all in the

language employed, and if the words be free from ambiguity and doubt, and express

plainly, clearly, and distinctly the sense of the lawmaking body, there is no occasion to

resort to other means of interpretation. The question is not what did the general

assembly intend to enact, but what is the meaning of that which it did enact. That body

should be held to mean what it has plainly expressed, and hence no room is left for

construction.”

at paragraph two of the syllabus.

{¶ 44} After examining the statute, we conclude that the language in R.C.

3105.171(I) is ambiguous, because the legislature’s use of the article “the” could refer

either to the parties’ express written consent to a particular modification, or to the fact of -17-

modification itself. The majority’s comments in Mees favor the former interpretation.

However, the latter interpretation is supported by the position of the dissent in Mees, and

by the fact that it makes little sense for courts to retain jurisdiction to modify a property

division merely for purposes of filing an agreement that the parties agree upon. One

must also keep in mind the reality that parties in divorce cases are rarely in agreement,

either before or after a decree.

{¶ 45} In this regard, we must emphasize that the parties do have to agree to give

the court continuing jurisdiction to modify their property division. In addition, where the

court enters a decree in a contested divorce after hearing evidence, the parties would

clearly not have agreed to continuing jurisdiction, and the court could not provide in the

decree that it would have the future ability to modify a property division.

{¶ 46} The parties can also restrict the extent of the court’s ability to modify. For

example, in Paat v. Paat, 5th Dist. Delaware No. 15 CAF 03 0025,

, the

parties gave the court continuing jurisdiction over the manner and terms of a sale of a

marital home, including the sales price. Id. at ¶ 94. However, the court of appeals later

construed this grant narrowly, and held that this did not give the trial court the ability to

satisfy unpaid spousal support by redistributing the sale proceeds from the martial home.

Id.

{¶ 47} As a further point, we note that to the extent any legislative history exists, it

is not particularly enlightening, but does appear to indicate that the trial court may do

more than simply file parties’ agreements. H.B. 238 as originally passed by the Ohio

House dealt only with amendment of R.C. 3105.171, and did not contain any modification

provision in R.C. 3105.171(I). By the time the bill had been reported by the Senate -18-

Judiciary – Civil Justice Committee, it had been expanded to include amendment of a

number of other Revised Code Sections, and the language that currently appears in the

statute had been added.

{¶ 48} The synopsis of the Committee Amendments for the Senate Judiciary

Committee on Civil Justice indicates that the bill would do a number of things, including

that it:

Authorizes the court in a divorce or legal separation proceeding to

modify a division or disbursement of property or a distributive award upon

the express written consent or agreement of both spouses.

Permits the spouses in a dissolution of marriage proceeding to

include in the separation agreement authorization for the court to modify the

division of property and requires that any modification be made only with

the express written consent or agreement of both spouses.

http://archives.legislature.state.oh.us/analysis.cfm?ID=128_HB_238&ACT=As%20Enroll

ed&hf=analyses128/h0238-rs-128.htm, discussing Sub.H.B. 238.

{¶ 49} The final bill analysis contains the same comments.

http://archives.legislature.state.oh.us/analysis.cfm?ID=128_HB_238&ACT=As%20Enroll

ed&hf=analyses128/10-hb238-128.htm. In addition, the Ohio Legislative Service

Commission Fiscal Note & Local Impact Statement for Am.Sub.H.B. 238, as enacted,

states that:

The purpose of the bill's property division provisions is to provide the

court with the authority to address problematic circumstances that arise

during the division or distribution of property. Based on information -19-

provided by staff of the Judicial Conference of Ohio, the potential resulting

effect would be an increase in the time and effort expended by the court to

modify certain property division orders. From a fiscal perspective, the

associated cost to the court is likely to be no more than minimal.

(Footnote omitted.) http://www.lsc.ohio.gov/fiscal/fiscalnotes/128ga/hb0238en.htm.

{¶ 50} The omitted footnote to this paragraph states that “[a]n example of a

‘problematic circumstance’ includes situations where a house will not sell or the purchaser

cannot get a mortgage.” Id.

{¶ 51} Again, while the legislative comments are not overly enlightening, they do

indicate that the intent was to give trial courts the ability to modify property divisions.

Accordingly, we conclude that under R.C. 3105.171(I) as amended, parties can agree to

give the trial court post-decree jurisdiction over property divisions. However, the court’s

ability to modify the property division should be narrowly limited to the terms expressed

in the agreement, due to long-standing principles surrounding the finality of decrees.

{¶ 52} Paragraph 4 of the Separation Agreement, which was incorporated into the

decree, deals with “Real Property” and states as follows:

The parties are joint owners of real property (“marital residence”)

commonly known as 1115 Stanwick Drive, Beavercreek, Ohio 45430.

It is expressly agreed by and between the parties that Wife shall

retain said marital residence free and clear of any claim of Husband. Upon

the filing of a Decree of Divorce herein, Wife shall assume sole liability for

and shall timely pay the mortgage obligations(s) to Union Savings Bank, or

its successors and assigns, real estate taxes (including any which are -20-

accrued and not yet due), insurance, utilities, maintenance costs and

improvements for the marital residence, and Wife shall hold Husband

harmless.

Further, Wife shall obtain refinancing of the first mortgage for the

purposes of relieving Husband from any liability thereon. Said refinancing

shall occur within ninety (90) days of the date of the filing of the Decree of

Divorce herein. Husband shall execute and deliver to Wife a quit claim

deed upon Wife’s refinancing of the mortgage obligation(s).

In order to equitably account for the division of the parties’ equity in

the marital residence and thus, allow Wife to keep the residence free and

clear of any claim by Husband, the parties agree said marital residence has

an approximate fair market value of $162,000.00 and that a mortgage loan

on the marital residence currently exists with an approximate balance of

$140,000.00. The parties further agree that Husband contributed pre-

marital assets to the marital residence in the amount of $6,000.00. In order

to equitably account for the division of the parties’ equity in the marital

residence, and thus, allow Wife to keep the residence free and clear of any

claim by Husband, Wife shall pay to Husband the sum of $16,000 upon

refinancing the marital residence, within ninety (90) days of the date of filing

of the Final Judgment Decree of Divorce herein.

In the event Wife is unable to obtain refinancing within ninety (90)

days of the date of the filing of the Final Judgment Decree of Divorce herein,

the parties shall forthwith list the residence for sale with a qualified real -21-

estate broker and sell the residence for its fair market value at the earliest

practicable time in order that the aforementioned mortgage(s) is paid in full.

Husband shall fully and completely cooperate with respect to Wife’s efforts

to obtain this refinancing, including, but not limited to, the provision of any

financial information, release or affidavits requested by prospective lenders.

Upon closing of the sale of the residence, and after payment of the normal

and customary costs of closing, Husband shall be entitled to receive the

sum of $6,000.00 of the net proceeds, if any, free and clear of any claim of

Wife. Thereafter, Wife shall receive fifty percent (50%) and Husband shall

receive fifty percent (50%) of the remaining net proceeds free and clear of

any claim of the other thereto. In the event a deficiency balance is owed

after payment of normal and customary costs of closing, each party shall

pay one-half of said deficiency and will hold the other harmless thereon.

The Court shall retain jurisdiction over this issue only to the extent

necessary to effectuate the intent of the parties, specified above, and to

achieve the complete equitable division of the parties’ real property

interests.

For the calendar year 2014, Husband shall be entitled to claim on his

individual federal, state, and local tax returns all mortgage interest and real

estate deductions on the marital residence that he has paid or earned prior

to the date of the filing of a final Judgment Entry and Decree of Divorce

herein. For the calendar year 2014, Wife shall be entitled to claim on her

individual federal, state, and local tax returns all mortgage interest and real -22-

estate deductions she has paid after, and including, the date of the filing of

a Final Judgment Entry and Decree of Divorce herein. Wife shall be

entitled to claim on her individual federal, state, and local tax returns all

mortgage interest and real estate deductions on the marital residence

commencing calendar year 2015.

Doc. #55, Ex. A, Separation Agreement, pp. 3-4.

{¶ 53} The agreement contemplated that Teri would assume responsibility for the

mortgage payments on the premises following the divorce and would hold Jonathan

harmless on the mortgage and expenses thereafter. The agreement further provided

that Teri would attempt to refinance the property and if she were unable to do so, the

property would be sold. The proceeds from the sale would then be divided equally

between the parties, after Jonathan was given the first $6,000 of proceeds. The

agreement obviously contemplated that Teri would continue to live in the premises until it

sold, and even gave Teri the ability to claim the tax deductions for periods after the

divorce, including the part of 2014 after the divorce, 2015, and periods thereafter.

{¶ 54} In its May 19, 2015 decision on the contempt matters, the trial court

awarded Jonathan “exclusive possession” of the marital premises, even though the court

was told at the April 2015 hearing that the property had been sold a few months

previously. The court further concluded that the prior order making Teri responsible for

all the costs of the premises in the marital decree would no longer be equitable. The

court, therefore, held that both parties would each be responsible for one-half of the

expenses as stated in the final decree, after Jonathan took control of the residence on

October 21, 2014. -23-

{¶ 55} As was noted previously, we review contempt decisions for abuse of

discretion. Jenkins,

,

, at ¶ 12. An abuse of discretion

“ ‘implies that the court's attitude is unreasonable, arbitrary or unconscionable.’ ”

Blakemore,

,

. However, abuses of discretion most

commonly arise from decisions that are unreasonable. DiPasquale,

,

,

. “Decisions are unreasonable if they are

not supported by a sound reasoning process.”

citing AAAA Ents., Inc.,

,

.

{¶ 56} As a preliminary matter, the trial court’s decision awarding Jonathan

possession of the marital premises was not supported by a sound reasoning process,

because that part of Jonathan’s motion for contempt was moot at the time of the hearing.

The motion was filed in October 2014, and the property had been sold long before the

hearing occurred in April 2015.

{¶ 57} Furthermore, although the separation agreement gave the trial court power

to retain jurisdiction to ensure an equitable division of the property interests, the court’s

decision was not supported by a sound reasoning process. As was noted, the

agreement contemplated that Teri would continue to live in the premises and hold

Jonathan harmless on the mortgage obligation thereafter. The conclusion that Teri was

expected to continue to reside in the premises is buttressed by the fact that she was

entitled to take credit on her income taxes for sums incurred for property taxes and so on,

after the divorce.

{¶ 58} Teri was not required to move from the premises, nor was she entitled under

the terms of the agreement to stop paying for the mortgage and other expenses prior to -24-

the time the property was sold. However, she voluntarily chose to vacate the premises

in October 2014 and to stop paying thereafter on the mortgage.

{¶ 59} Furthermore, the trial court specifically noted in its decision that neither

party lived in the premises after Teri left. Although an argument might be made that

Jonathan could equitably be held responsible for payment on the mortgage and other

expenses if he had moved into the premises and lived there until it was sold, this was not

what occurred. Moreover, the agreement between the parties did not contemplate that

Teri would be given credit for contributions she made toward the mortgage between the

time she took possession and the time of sale. Instead, the agreement stated that if the

property were sold (regardless of whether that occurred immediately or even years later),

Jonathan would be entitled to the first $6,000 of proceeds, and the remaining equity would

be equally split between the parties. As a result, there was nothing, under the

circumstances, for the trial court to construe or upon which to exercise its limited power

to modify.

{¶ 60} We have said that “ ‘trial courts may clarify ambiguous terms in divorce

decrees * * *.’ ” (Citations omitted.) Denmark v. Denmark, 2d Dist. Montgomery No.

26438,

. “An ambiguity exists when a provision in an order or

decree is reasonably susceptible of more than one meaning.” McKinney,

,

. “When interpreting a divorce decree that incorporates

the parties' separation agreement, * * * the normal rules of contract interpretation

generally apply to ascertain the meaning of its language.” (Citation omitted.) Wallace

v. Wallace, 2d Dist. Greene No. 2006-CA-136,

. “Because the

construction of a written contract is a matter of law, the same is reviewed without -25-

deference to the trial court's determination.”

citing Alexander v. Buckeye Pipeline

Co.,

,

(1978), paragraph one of the syllabus. “If we

are able to determine the intent of the parties from the plain language of the agreement,

then there is no need to interpret the contract.” (Citation omitted) Saunders v.

Mortensen,

,

,

.

{¶ 61} We find nothing ambiguous in the Separation Agreement. As was noted,

the agreement contemplates that Teri would continue to pay the mortgage payments and

upkeep on the premises, and hold Jonathan harmless. The agreement also provided for

a specific division of proceeds upon sale. Teri chose to abandon the premises and stop

making payments. She may not have liked the terms to which she agreed, but they were

not ambiguous.

{¶ 62} Accordingly, the Fourth Assignment of Error is sustained. On remand, the

trial court should determine and award Jonathan the sums he paid for “the mortgage

obligations(s) to Union Savings Bank, or its successors and assigns, real estate taxes

(including any which are accrued and not yet due), insurance, utilities, maintenance costs

and improvements for the marital residence * * * ” between the date that Teri vacated the

premises and the date the property was sold. Doc. #55, Ex. A, Separation Agreement,

p. 3. The court should credit Teri for the amounts previously assessed against her, i.e.,

the mortgage payments for August, September, and October 2014.

VI. Attorney Fee Award to Jonathan

{¶ 63} Jonathan’s Fifth Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion by Awarding only -26-

$1,000.00 in Attorney Fees to Appellant When Appellant Offered Evidence

of Attorney Fees Amounting to $2,850.00, and Where the Trial Court Failed

to Explain Its Reasoning for the Award.

{¶ 64} Under this assignment of error, Jonathan contends that the trial court

abused its discretion by awarding him the same amount of fees as were awarded to Teri,

even though the work performed to prosecute his contempt action far exceeded the

amount involved in Teri’s claim.

{¶ 65} As was previously noted, we review attorney fee awards for abuse of

discretion. State ex rel. Fraternal Order of Police Captain John C. Post Lodge No. 44,

,

. Abuses of discretion most often arise from

unreasonable decisions, i.e., ones that lack a sound reasoning process. DiPasquale,

,

,

.

{¶ 66} After reviewing the record, we find no abuse of discretion. In another

situation involving cross-motions for contempt, we noted that “both parties were found to

be in contempt as a result of the same hearing. Thus, the trial court's apparent

conclusion that the parties' attorneys had invested roughly the same amount of time in

the contempt proceedings was not manifestly unreasonable.” Galluzzo v. Galluzzo, 2d

Dist. Champaign No. 96-CA-16,

, *2 (Feb. 14, 1997). See also Beyke v.

Beyke, 3d Dist. Union No. 14-05-13,

(in a case involving cross-

motions for contempt, the trial court did not abuse its discretion by requiring the parties to

pay their respective attorney fees.)

{¶ 67} We also note that some parts of Jonathan’s contempt motion were

withdrawn at trial or were moot, and the trial court was not required to award either side -27-

the total amount of fees that were requested.

{¶ 68} Based on the preceding discussion, the Fifth Assignment of error is

overruled.

VII. Conclusion

{¶ 69} Jonathan’s Second and Fourth Assignments of Error having been

sustained, and his First, Third, and Fifth Assignments of Error having been overruled, the

judgment of the trial court is affirmed in part and reversed in part, and this cause is

remanded for further proceedings.

.............

DONOVAN, P.J. and HALL, J., concur.

Copies mailed to:

Michael A. Mayer David S. Peterson Robert K. Hendrix Hon. Steven L. Hurley