Hogan v. Hogan

• Citation: 278 N.E.2d 367,29 Ohio App.2d 69
• Parties: , 58 O.O.2d 80 Rose Marie HOGAN, Appellant, v. James J. HOGAN et al., Appellees.
• Decision Date: 27 January 1972
• Court: Ohio Court of Appeals

Page 69

29 Ohio App.2d 69

278 N.E.2d 367, 58 O.O.2d 80

Rose Marie HOGAN, Appellant, v. James J. HOGAN et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 27, 1972.

Syllabus by the Court

Language contained in a separation agreement which commands one of the parties to do or refrain from doing a specified act, when incorporated into and made a part of a divorce decree, is raised to the dignity of a decree of court, becomes a command by the court, and is generally enforceable by proceedings to punish as for a contempt under R.C. § 2705.02, subject to the defenses generally applicable in such cases, notwithstanding that the command sought to be enforced may have been meant to effect a settlement of the parties in the marital property. (Saslow v. Saslow, 104 Ohio App. 157, 147 N.E.2d 262, distinguished in part and not followed in part.)

Hertz, Kates, Friedman & Feldman, Cleveland, for appellant.

Terrell, Williams & Salim, Cleveland, for appellees.

I.

JACKSON, Judge.

This appeal was brought from a decision of the Court of Common Pleas denying a motion by the plaintiff, appellant herein, that her former husband be cited for contempt for his alleged failure to comply with the terms of a separation agreement incorporated into and made a part of a decree of that court divorcing these two parties. Her former husband, appellee herein, answered by asserting, inter alia, that the terms of the separation agreement claimed to have not been complied with are in the form of a property settlement. So, finding, the trial court dismissed plaintiff's motion, on the authority of Saslow v. Saslow (1957), 104 Ohio App. 157, 147 N.E.2d 262, and Kransnicki v. Kranicki, an unreported case decided by this court (No. 29129, decided November 13, 1968).

II.

Although provisions found in a separation agreement, as incorporated into a divorce decree and made a part thereof, may happen to have the attributes of a property settlement between the parties, we do not believe that they are thereby rendered unenforceable by proceedings to punish as for a contempt under R.C. § 2705.02. 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. We do not, therefore, reach the question most strongly argued by the parties, whether or not the particular terms included here are provisions effecting a property settlement between the parties. We hold that it makes no difference whether they are or are not.

The bald proposition that provisions of a separation agreement, once incorporated into and made a part of an otherwise valid divorce decree, cannot be enforced by proceedings for contempt, could only be supported on one or the other of two theories: (1) that by adopting such provisions as its own the trial court exceeds its authority, entering, as it were, an invalid order or decree, or (2) that enforcement would constitute an imprisonment for debt, contrary to the Constitutions of the United States and of the State of Ohio. The latter theory is disposed of by the cases of State, on Complaint of Cook, v. Cook (1902), 66 Ohio St. 566, 64 N.E. 567 and Holloway v. Holloway (1935), 130 Ohio St. 214, 198 N.E. 579. Of course, no person can be punished for contempt due to his failure to pay according to a valid judicial order, if he is unable financially to comply with that order. And as the Cook and Holloway cases make clear, in no event is the contemnor punished for his failure to pay a debt arising out of a contract.

When all or a part of a separation agreement is incorporated into and made a part of a divorce decree, albeit by reference, that act of incorporation does not 'reduce the status of the decree to that of a mere contract' but raises the included language to a greater status, giving it the force and effect it would have enjoyed had it been fully rewritten into the order or decree. '(T)he inquiry is not whether the alimony obligor has paid the amounts provided for in the contract,' as the Supreme Court has noted in such a case, 'but whether he has paid the amounts ordered by a decree of court' (Holloway v. Holloway, 130 Ohio St. at 216-217, 198 N.E. at 580).

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 definance 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.

By way of defense, it may be shown in an appropriate case that the act or omission complained of was not willfully inspired, or that the accused did in fact comply with the mandate of the court, or that in entering the decree sought to be enforced the court exceeded its authority. But, in general, the trial court in a divorce case has broad equitable jurisdiction to effect 'a complete dissolution of the marriage relationship, including a determination of the rights of the parties to alimony and to a division of property' (Clark v. Clark (1956), 165 Ohio St. 457, 136 N.E.2d 52). Indeed, where the decree incorporates by reference provisions found in a separation agreement, the trial court is not limited to those powers which it might possess in the absence of such an agreement. It is limited only by the restriction that the decree and the included provisions taken from the separation agreement, taken as a whole, must not be unreasonable (Robrock v. Robrock (1958), 167 Ohio St. 479, 150 N.E.2d 421).

In the Robrock case the Supreme Court held that proceedings will lie in contempt to enforce provisions of a separation agreement (incorporated into and made a part of the divorce decree) imposing obligations on the husband vis a vis his children extending beyond their minority. Recognizing that one part of a separation agreement may have been the quid pro quo for another and that in a particular case several provisions of such an agreement may be quite inseparable, Judge Bell wrote:

'A trial court, even though satisfied in every respect as to the fairness of an agreement, in considering the incorporation of that agreement in a divorce decree, should not be required to separate items in the agreement that the court has the present power to enforce from those it does not have the power to enforce and include in the decree only the former. Nor should such court be required to find itself in the position of saying to a wife, 'Now, of course, the obligations you assume, being such as I have the power to impose, will be enforced against you, but this court will not be able to enforce the obligations your husband is here assuming because I do not have the power to impose them" (Robrock v. Robrock, id., at 487, 150 N.E.2d at 427).

That, however, is just what the appellee would have us do.

Unlike Robrock, in the case at bar there is no argument that the court actually lacked power to bind the parties-only that it lacked power to impose obligations enforceable by proceedings as for a contempt. Presumably appellant could in any event reduce the obligations to judgment and thereupon proceed in aid of execution. Put this way, the question is whether litigation is to be at an end, whether a valid decree is to be enforced according to its tenor, or whether appellant is to be again forced through a possibly long and involved litigation, as though that seemingly valid decree had never issued, for reasons equally as arbitrary as led the Supreme Court to reach the decision it did in Robrock. It is axiomatic that the purpose of a decree is to put an end to litigation. It is certainly not intended to stir up legal difficulties. To pose the problem this way, is to answer the question.

Appellee points to the case of Saslow v. Saslow (1957), 104 Ohio App. 157, 147 N.E.2d 262, which he claims supports his position. That case involved a provision in a separation agreement incorporated into a subsequent divorce decree allowing the wife to retain title to certain real property subject to the restriction that should she remarry within three years from the date the divorce decree was entered, she would deliver two deeds to a trustee, conveying in each a one-third interest in the property, to be held for the benefit of her two children by her marriage to the complaint. The wife subsequently sold this property, and reinvested the proceeds in a second parcel of land of comparable value. Thereafter, but within the three-year period, she remarried. Proceedings were brought against her for contempt upon her refusal to convey any interest in either of the parcels, in accord with the terms of the decree. The trial court found her to be in contempt. The Court of Appeals reversed.

Strictly speaking, there was no order effecting the wife's interest in the second parcel. There was no evidence that the sale and purchase arrangement was in any way intended to defeat that order which had been made directing the wife to convey one-third interest in the first parcel. But while Judge Wiseman did touch on these considerations in his opinion, it is not unreasonable to conclude from that opinion and from the syllabus that the court based its decision in part on the general proposition found in the American Law Reports...