Pugh v. Pugh

• Decision Date: 31 December 1984
• Docket Number: No. 83-1861,83-1861
• Citation: 15 Ohio St.3d 136,472 N.E.2d 1085,15 OBR 285
• Parties: , 15 O.B.R. 285 PUGH, Appellant, v. PUGH, Appellee.
• Court: Ohio Supreme Court

Page 136

15 Ohio St.3d 136

472 N.E.2d 1085, 15 O.B.R. 285

PUGH, Appellant, v. PUGH, Appellee.

No. 83-1861.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

1. Proof of purposeful, willing or intentional violation of a court order is not a prerequisite to a finding of contempt.

2. In cases of contempt, to suspend execution of the order or judgment in an appeal proceeding, the appellant must file bond in an amount fixed by the appellate court, in the trial court that tendered judgment. (App.R. 7 superseded by R.C. 2705.09.)

Appellant, Robert C. Pugh, appeals from the judgment entered by the Court of Appeals for Fairfield County, which affirmed the trial court's finding of contempt and conditionally upheld a stay of execution pending a posting of an $80,000 bond. The stay of execution was initially granted by the trial court after appellant objected to the referee's finding him in contempt for not adhering to the terms of his agreed judgment entry and decree of divorce. The referee recommended that appellant serve two consecutive ten-day jail sentences for his two violations of the agreement.

On March 7, 1983, an agreed judgment entry and decree of divorce was filed in the Court of Common Pleas of Fairfield County. Under the terms of the judgment, the appellee, Cheri A. Pugh, was granted a divorce, based on gross neglect of duty as demanded in her amended counterclaim. In addition, the judgment set forth certain terms to which the appellant was to adhere. Under the relevant terms, appellant was to: (1) give a deed to real estate to the appellee; (2) transfer title to a 1977 Jaguar automobile to the appellee immediately upon filing of the decree; (3) deliver a snowmobile to the appellee; (4) pay $500 per month per child in support ¹; (5) pay $2,000 per month for twenty-five months as an additional property settlement; and (6) pay an additional lump sum property settlement of $50,000 not later than March 11, 1983 (four days after the agreed entry was filed).

On March 15, 1983, appellee filed an application for contempt for the nonpayment of the $50,000. On April 15, 1983, appellee filed a second application for contempt, alleging that the title to the Jaguar had not been transferred, that the snowmobile had not been transferred, and that the appellant was behind in his periodic payments and child support.

On May 5, 1983, the contempt matters were heard before a referee. The only person to testify was appellant. Prior to his testimony, counsel for the appellant admitted that appellant had failed to comply with the terms of the agreement with respect to the real estate, the snowmobile, and the Jaguar. Appellant testified that he had not been able to make the periodic monthly payments due to business reversals stemming from the effects of bad weather upon his carnival business, which had been operating since April 1, 1983.

The lump sum payment of $50,000 was due in the middle of March, prior to the beginning of carnival season. Appellant testified that he had intended to borrow the $50,000 but had been unable to do so. The agreed entry did not make his obligation to pay contingent upon borrowing the money. Appellant stated that he had asked a personal friend for the loan, asked his father for the loan, and spoken over the telephone to Mr. Marquette, an officer at Fairfield National Bank, concerning the loan. ² In each instance, the loan was not made.

Appellant was questioned about sources of recent business loans which he stated must remain confidential. The referee recognized that the business was not obligated to satisfy the debts but rather appellant himself, as an individual, is obligated to settle the debts.

The referee found the appellant in contempt stating in his report that the appellant's "assertions of his inability to pay the same [Paragraph 11(8), $50,000] do not rise to the level of proof of his inability to pay the same." Appellant was sentenced to ten days in jail. The referee also found the appellant in contempt for not transferring the title to the Jaguar, for willfully failing to pay his child support obligation, and for willfully failing to make his periodic payment. Appellant was sentenced to ten days in jail consecutive to the previous sentence imposed. The referee's report also gave the appellant the opportunity to purge himself of the contempt charges by paying the $50,000, commencing the periodic and child support payments, and transferring title to the Jaguar.

Appellant filed objections to the report of the referee; however, the reviewing judge approved the referee's recommendations. On June 24, 1983, appellant filed a motion for a stay and suspension of execution of sentence. On the same day, the court granted the motion and suspended the execution of the sentence pending appeal. The court also dispensed with bond in this matter.

On June 24, 1983, appellant timely filed his notice of appeal to the court of appeals. On July 13, 1983, appellee filed a motion to set aside the stay and suspension of execution of sentence. Due to the trial court's lack of jurisdiction pursuant to R.C. 2705.09, on August 17, 1983 a judgment entry was filed which overruled the appellee's motion. On October 4, 1983, the court of appeals filed a judgment entry. The court ordered further stay to be conditioned upon the posting of an $80,000 bond. On October 11, 1983, the court of appeals filed its opinion which unanimously affirmed the finding of contempt. The court stated in its opinion that " * * * the trial court could reasonably have found from the evidence that the defense [of inability to pay] was a sham." The court further stated that "[t]here is an abundance of evidence, which if believed, justif[ies] a finding beyond a reasonable doubt of willful contempt of court." Finally, the court noted that on October 4, 1983, the date of oral argument and coincidentally the end of fair season, appellant had made no further payments to the appellee.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Tyack, Delligatti & Briscoe and G. Gary Tyack, Columbus, for appellant.

Strip, Fargo, Schulman & Hoppers Co., L.P.A., Paul W. Leithart, II, and A.C. Strip, Columbus, for appellee.

PATTON, Justice.

I

Appellant's propositions of law one and two are related and will be discussed together. In his first proposition, appellant contends that in a contempt proceeding, the appellee has the burden of proving by clear and convincing evidence that the appellant purposely failed to comply with the terms of the divorce decree. In his second proposition of law, appellant contends that in determining whether he purposely failed to comply with the divorce decree, his inability to comply with the decree is not an affirmative defense but an issue of evidence. These contentions are without merit.

Without addressing the merits of appellant's arguments, it must be noted that appellant's propositions were not assigned as error below or briefed by either party. Indeed, appellant's entire appeal rested on the argument that "[i]nability to pay is a defense which was asserted at the contempt proceeding." Accordingly, the propositions are not properly before this court for present consideration. See Zakany v. Zakany (1984), 9 Ohio St.3d 192, 193, 459 N.E.2d 870, and Republic Steel Corp. v. Bd. of Revision (1963), 175 Ohio St. 179, 192 N.E.2d 47 , syllabus.

If the propositions had been properly before this court, appellant's arguments would still be without merit.

R.C. 2705.02 provides in part:

"A person guilty 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 Ohio courts have distinguished the degree of proof necessary in civil as opposed to criminal contempt proceedings. In criminal contempt proceedings, the courts have held that the standard of proof is guilt beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416 N.E.2d 610 . This court in Brown at 253-254, 416 N.E.2d 610 held:

" * * * [C]ourts distinguish criminal and civil contempt not on the basis of punishment, but rather, by the character and purpose of punishment. * * * [Citations omitted.] Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket * * * [citation omitted] since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence."

In Brown, this court looked at the nature of the various penalties imposed to determine if they were civil or criminal and stated at 253, 416 N.E.2d 610; " * * * [a]ny civil penalties imposed will be valid since the trial judge stated that the appellees were guilty of contempt by clear and convincing evidence."

Appellant contends that the appellee has the burden of proving that he purposely failed to comply with the terms of the decree. In State, ex rel. Cook v. Cook (1902), 66 Ohio St. 566, 64 N.E. 567, this court held in paragraph one of the syllabus:

"In a proceeding in contempt against a party who has refused to comply with a money decree for alimony, it is not essential that the complaint allege that the party is able to pay the money. The decree imports a finding of the court that he is able to pay, and the burden is on him, by allegation and proof, to establish his inability." (Emphasis added.)

The Cook decision was cited with approval in Bly v. Smith (1916), 94 Ohio St. 110, 113 N.E. 659, where this court at 114, 113 N.E. 659 stated:

"Now, upon the contempt hearing before the court of common pleas, that burden of showing his inability [to pay] was upon the * * * [contemnor] * * *."

In addition, proof of purposeful, willing or intentional violation of a court order is...