Harris v. Harris

• Decision Date: 13 June 1979
• Docket Number: No. 78-1151,78-1151
• Citation: 58 Ohio St.2d 303,390 N.E.2d 789
• Parties: , 12 O.O.3d 291 HARRIS, Appellee, v. HARRIS, Appellant.
• Court: Ohio Supreme Court

Page 303

58 Ohio St.2d 303

390 N.E.2d 789, 12 O.O.3d 291

HARRIS, Appellee, v. HARRIS, Appellant.

No. 78-1151.

Supreme Court of Ohio.

June 13, 1979.

Syllabus by the Court

1. A property settlement provision contained in a separation agreement, which is subsequently incorporated into a divorce decree, or a decree of dissolution, is enforceable by contempt proceedings.

2. For purposes of enforcing a decree entered into a domestic relations proceeding, provisions relating to the division of property as contained within a separation agreement do not constitute a "debt" within the meaning of that term as used in the constitutional inhibition against imprisonment for debt.

The marriage of Richard and Norma Harris was dissolved by the Court of Common Pleas of Athens County on June 20, 1975. The parties had previously entered into a separation agreement, which was incorporated by reference into the decree of dissolution.

The agreement provided for alimony and child support, and provided further that:

"3. Husband agrees to pay for an (Sic ) transfer upon release of lien thereon the 1973 Electra Buick now owned by the parties and said property hereafter shall be the sole property of said Wife and said Husband agrees to pay all the indebtedness thereon. Husband hereby expressly waives all right to survivorship in said 1973 Electra Buick. * * * "5. Husband shall execute and deliver to Wife, upon the execution hereof, a note in the principal amount of $60,000.00, said note to bear no interest for five (5) years from the date of the execution thereof, and to draw six percent (6%) simple interest thereafter until paid in full. For the first year following the execution hereof, said Husband shall pay to said Wife the sum of $50.00 per week on said note and for the second through the fifth year, the sum of $75.00 per week on said note. Thereafter, said Husband may pay on said note at any rate of acceleration he desires so long as a minimum of $75.00 per week is paid thereof * * *."

On January 26, 1977, appellee-wife instituted contempt proceedings against appellant-husband, alleging that he was delinquent in his obligations on the note, and had failed to make payments on the automobile as they became due. Following a hearing on the motion, the trial court adjudged appellant in contempt, finding that he had not complied with the terms of the dissolution decree, and the court ordered him incarcerated in the county jail for ten days. The order of confinement was stayed by the Court of Appeals pending disposition of the appeal.

On appeal, the judgment of the trial court was affirmed. The Court of Appeals held that willful noncompliance with the property settlement provisions of a dissolution decree is enforceable in contempt.

The Court of Appeals for Athens County certified the record of this case to this court for review and final determination upon the basis that its judgment was in conflict with the judgment of the Court of Appeals for Montgomery County in the case of Saslow v. Saslow (1957), 104 Ohio App. 157, 147 N.E.2d 262.

Homer B. Gall, Jr., and William R. Walker, Athens, for appellee.

Harry Donovan Lowe, McConnelsville, for appellant.

HOLMES, Justice.

The sole issue before this court is whether a property settlement provision contained in a separation agreement, which is subsequently incorporated into a decree of dissolution, is enforceable by contempt proceedings. Appellant presents a two-pronged argument: first, that property settlement provisions, contrary to "alimony" provisions, may not be enforced by contempt proceedings; and, second, that to enforce the property settlement provision would constitute imprisonment for debt contrary to the Ohio Constitution.

In Traylor v. Traylor (Franklin Co. 1933), 46 Ohio App. 87, 187 N.E. 722, the husband had been granted a divorce for the "aggression of the wife." The parties had agreed to a property settlement which required the husband to pay the indebtedness on the mortgages on certain real property given to the wife, and to pay the tax and street assessments levied thereon. The agreement was incorporated into the divorce decree.

When the husband defaulted on his obligations, the wife instituted contempt proceedings. The trial court subsequently ordered his imprisonment in the event of his failure to make such payments. On appeal, the Court of Appeals for Franklin County reversed and remanded on the basis that the rights of the wife, where, as in that case, the divorce is granted to the husband based upon the aggression of the wife, were controlled by G.C. 11993. The court, at page 90, 187 N.E. at page 723, stated that under such circumstance " * * * the court is merely authorized to adjudge to the wife such share of the husband's real or personal property, or both, as it deems just."

The court pointed out further that there was no question of the right of a court to commit for contempt for failure to pay "alimony proper," but in that the mortgage payments to be made by the husband on behalf of the aggressor wife could not, under the statute, constitute alimony, contempt for nonpayment would not lie.

Traylor, supra, was followed in Addison v. Addison (Hamilton Co. 1953), 95 Ohio App. 191, 118 N.E.2d 225 (dictum); and Saslow v. Saslow (Montgomery Co. 1957), 104 Ohio App. 157, 147 N.E.2d 262.

Saslow involved a provision in a separation agreement subsequently incorporated into a divorce decree, which allowed the wife to retain title to certain real property. It was provided, however, that in the event that she remarried within three years of the entry of the divorce decree she would convey a one-third interest in the property to a trustee, for each of her two children.

When the property was sold and the wife remarried before the three years had elapsed, the former husband instituted contempt proceedings in an attempt to enforce the decree. The trial court found the wife in contempt. The Court of Appeals reversed and remanded.

The appellate court characterized the above provision as a property settlement, and ruled that such provision had lost its contractual character and became a part of the lower court's decree upon its incorporation therein.

However, the court concluded that contempt would not lie because the trial court had continuing jurisdiction only over the alimony provisions of the decree, and having no continuing jurisdiction over the property settlement provision, the court was unable to enforce this portion of the order by its contempt power.

The logic of Saslow, supra, was rejected by the Court of Appeals for Cuyahoga County in Hogan v. Hogan (1972), 29 Ohio App.2d 69, 278 N.E.2d 367, wherein the court held that although provisions found in a separation agreement which was incorporated into a divorce decree may happen to have the attributes of a property settlement, such provisions were not rendered unenforceable by proceedings in contempt pursuant to R.C. 2705.02.

The appellate court, in Hogan, at page 70, 278 N.E.2d at page 368, appropriately stated:

" * * * To require a trial court to distinguish between those terms which may be in the nature of a property settlement and terms which relate to maintenance and support of the spouse or children enforcing only the latter, would be arbitrary and artificial and would run counter to the settled law of this state."

The court, in Hogan, at page 71, 278 N.E.2d at page 369, stated further:

"The contemnor is punished for his willful failure to comply with a valid judicial order. In such a case power of contempt is not dependent upon the presence or absence of continuing jurisdiction over the subject matter and parties to the original divorce action. It springs separately, from the act or omission in defiance of the court and from the actual arrest, if no more, of the contemnor. The presence or absence of jurisdiction is not a basis, therefore, for an abstract distinction between punishment for refusal to make payments for maintenance and support and punishment for refusal to make payments to effect a property settlement, in each case on order by the court. In either event, defiance of a valid judicial order should be equally enforceable by proceedings to punish as for a contempt, subject in each case to the same defenses."

We are in agreement with the Court of Appeals for Cuyahoga County that to rest the enforceability of a trial court's order on the determination of whether the terms of the agreement embodied within the decree are labeled, or are in the nature of, a property settlement, or labeled, or are in the nature of, maintenance and support, would be arbitrary and artificial.

In the first instance, the power of contempt is inherent in a court. Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199; State ex rel Turner, v. Albin (1928), 118 Ohio St. 527, 161 N.E. 792. Even were this not so, R.C. 2705.02 expressly vests such power in the courts. Such section, in pertinent part, provides:

"A person guilty of any of the following acts may be punished as for a contempt:

"(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer; * * *."

The concept that the terms of a contract between the parties in a domestic relations action are raised to the status of being a part of the court's judgment when made part of the decree is found in Holloway v. Holloway (1935), 130 Ohio St. 214, 198 N.E. 579. The syllabus in Holloway clearly sets forth the basic legal principle that "(c)ontempt proceedings lie against a husband for failure to pay alimony as provided in a separation agreement which is incorporated into and made a part of a divorce decree."

The court, in its opinion, at page 216, 198 N.E. at page 580, in speaking of the elevation of the terms of the contract to the status of the decree, stated:

" * * * A decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the...