Johnson v. Johnson, Appellate Case No. 2020-CA-7

• Decision Date: 13 November 2020
• Docket Number: Appellate Case No. 2020-CA-7
• Citation: 2020 Ohio 5275
• Parties: JENNIFER L. JOHNSON Plaintiff-Appellee v. DAVID L. JOHNSON Defendant-Appellant
• Court: Ohio Court of Appeals

2020 Ohio 5275

JENNIFER L. JOHNSON Plaintiff-Appellee v. DAVID L. JOHNSON Defendant-Appellant

Appellate Case No. 2020-CA-7

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

November 13, 2020

Trial Court Case No. 2016-DR-171

(Domestic Relations Appeal)

OPINION

JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324 Defendant-Appellant, Pro Se

DONOVAN, J.

{¶ 1} Defendant-appellant David L. Johnson, acting pro se, appeals from a judgment of the Greene County Court of Common Pleas, Domestic Relations Division, which found him in contempt for failing to remove the name of his former wife, plaintiff-appellee Jennifer L. Johnson, from certain credit card debts specified in the parties' final judgment and decree of divorce. The contempt order came as a result of a motion to show cause filed by Jennifer on November 21, 2019. David filed a notice of appeal on February 4, 2020.

{¶ 2} We set forth the history of the case in Johnson v. Johnson, 2d Dist. Greene No. 2018-CA-36, 2019-Ohio-1024 (Johnson I), and repeat it herein in pertinent part:

David L. Johnson ("David") and Jennifer L. Johnson ("Jennifer") were married on October 20, 2001, and are the parents of two minor children. Since 2001, Jennifer has worked for United Healthcare, where she is paid an annual salary plus occasional bonuses. David has been self-employed since 2001 as the sole proprietor of a computer repair and custom computer building business. Jennifer filed a complaint for divorce on July 29, 2016. The parties agreed to use June 28, 2016, the date that David vacated the marital residence, as the date of their separation for purposes of the division of property.

A hearing to determine the parties' respective incomes and to identify and categorize their assets and liabilities took place before the trial court over three dates: June 27, 2017; August 22, 2017; and October 24, 2017. On August 2, 2018, the court issued a final judgment and decree of divorce that incorporated the parties' agreement regarding custody and parenting time, then set forth the court's determinations regarding the payment of child support and spousal support, the division of the parties' assets and liabilities, and the allocation of attorneys' fees and costs.

Id. at ¶ 2-3.

{¶ 3} David appealed, and we affirmed the trial court's judgment in part and reversed it in part. Id. We remanded the case "for the limited purpose of addressing" four issues:

1) as to the order for distribution of property, for failing to articulate, consistent with R.C. [3105].171, why David's claimed inheritance was regarded as marital property and not as David's separate property; 2) as to the order regarding tax refunds/liabilities, for failing to order Jennifer to pay David both one-half of that portion of Jennifer's federal income tax refund for 2016 attributable to the months before the parties separated and one-half of that portion of David's $346 federal income tax liability for 2016 attributable to the months before the parties separated; 3) as to the orders for spousal support and child support, to accurately reflect the amount of David's imputed annual income, and to make any corresponding changes warranted in the amount of spousal support and/or child support to be paid; and 4) as to the award of attorney's fees, for failing to address whether David should have been credited for a $750 payment previously made to Jennifer.

Id. at ¶ 77.¹

{¶ 4} Following our remand, the trial court issued an order addressing these issues on August 23, 2019. David appealed the trial court's judgment, and we concluded that the trial court had erred by ordering David to seek work and by ordering Jennifer to pay David his share of her tax refund offset by her share of his tax debt. Rather than remanding the case for the trial court to correct its judgment, we modified the trial court's judgment in two respects: (1) the seek-work order was vacated, and (2) for the parties' 2016 tax refund and liability, Jennifer was ordered to pay David $1,165.75. We affirmed the trial court's judgment as modified. See Johnson v. Johnson, 2d Dist. Greene No. 2019-CA-58, 2020-Ohio-4085, ¶ 30 (Johnson II).

{¶ 5} As previously stated, on November 21, 2019, Jennifer filed a motion to show cause regarding David's failure to remove her name from certain credit card debts specified in the parties' divorce decree. A hearing was held on the motion to show cause on January 8, 2020. Jennifer attended the hearing represented by counsel. David did not attend the hearing even though the trial court found that service of notice of the hearing date had been perfected on him. January 10, 2020, Judgment Entry p. 1. Ultimately, the trial court held David in contempt.

{¶ 6} Based upon its finding that David was in contempt, the trial court ordered him to serve a sentence of 90 days in jail. However, the trial court set forth conditions for David to satisfy in order to purge the contempt finding and suspend the jail sentence.The trial court also scheduled a hearing date of April 8, 2020, for David's sentencing on the contempt finding and for Jennifer to present evidence regarding her costs for the filing and prosecution of the motion to show cause.

{¶ 7} It is from this judgment that David now appeals.

Final Appealable Order

{¶ 8} Initially, we note that Jennifer asserts that the trial court's January 10, 2020 judgment was not a final appealable order and that David's appeal should therefore be dismissed. " 'When determining whether a judgment or order is final and appealable, an appellate court engages in a two-step analysis. First, the court must [ordinarily] determine if the order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C. 2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the order contains a certification that there is no just reason for delay.' " LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43 N.E.3d 504, ¶ 18 (2d Dist.), quoting Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 2013-Ohio-5036, 4 N.E.3d 1087, ¶ 7 (10th Dist.). (Other citation omitted.)

{¶ 9} As previously stated, the January 10, 2020 judgment found David to be in contempt, and the trial court ordered him to serve a sentence of 90 days in jail. Furthermore, the trial court set forth conditions for David to satisfy in order to purge the contempt finding and suspend the jail sentence. The trial court also scheduled a hearing date for David's sentencing on the contempt finding and for Jennifer to present evidence regarding her costs for the filing and prosecution of the motion to show cause.

{¶ 10} Appellate courts have jurisdiction over judgments or "final orders." Section 3(B)(2), Article IV, Ohio Constitution; 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., 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8.

{¶ 11} When contempt sanctions are imposed to enforce compliance by coercive means, then the contempt proceeding is civil. Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988). Punishment imposed for a finding of civil contempt must afford the contemnor an opportunity to purge himself of contempt. Fry v. Fry, 64 Ohio App.3d 519, 523, 582 N.E.2d 11 (3rd Dist.1989). "[A] court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court." Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 23. "[A] contemnor may have an additional appeal on the question whether the purge conditions have been met following execution of sentence on the failure to purge." Id. Thus, in light of the holding in Docks, the trial court's January 10, 2020 judgment finding David in contempt and setting forth purge conditions was a final appealable order and is properly before this Court.

{¶ 12} We note that the trial court's January 10, 2020 judgment did not include the Civ.R. 54(B) final appealable order language. However, we have previously held that a Civ.R. 54(B) certification is not required to make a contempt order final and appealable. Barton v. Barton, 2017-Ohio-980, 86 N.E.3d 937, ¶ 59 (2d Dist.), citing Contos v. Monroe Cty., 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380, ¶ 12, and Docks at ¶ 23 ("a court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court"). Thus, the Civ.R. 54(B) "no just reason for delay" language was not needed to make the order a final appealable order. In light of the Ohio Supreme Court's decision in Docks and our decision in Barton, the trial court's judgment entry issued on January 10, 2020, was a final appealable order, and we will treat it as such.

{¶ 13} Because they are interrelated, David's first and second assignments of error will be discussed together:

JUDGE HURLEY ERRED WHEN HE RULED THAT SERVICE WAS PERFECTED ON THE DEFENDANT FOR THE HEARING. SINCE SERVICE WAS NOT PERFECTED ON THE DEFENDANT, THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE.

SINCE SERVICE WAS NOT PERFECTED ON THE DEFENDANT, THE TRIAL COURT ERRED BY CONDUCTING THE HEARING ON JANUARY 8, 2020 THEREBY SUBSTANTIALLY HARMING HIS RIGHTS TO A FAIR HEARING. THE APPELLANT WAS NOT GIVEN SUFFICIENT TIME TO ANSWER THE MOTION, MOUNT A DEFENSE, OR EVEN ATTEND THE HEARING.

{¶ 14} In his first and second assignments, David contends that because service was not perfected on him, the trial court erred when it ruled on the issues presented at the hearing held on January 8, 2020, specifically with respect to Jennifer's ...