Zakany v. Zakany
| Decision Date | 22 February 1984 |
| Docket Number | No. 83-188,83-188 |
| Citation | 9 OBR 505,9 Ohio St.3d 192,459 N.E.2d 870 |
| Parties | , 9 O.B.R. 505 ZAKANY, Appellant, v. ZAKANY et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A court has authority both under R.C. 2705.02(A) and on the basis of its inherent powers to punish the disobedience of its orders with contempt proceedings.
The parties to this action, James Zakany and Helen L. Zakany, appellant and appellee herein, respectively, were divorced on May 15, 1980. The final decree provided, inter alia, that appellee was to retain all life insurance policies of the parties. This provision, along with all other aspects of the decree, had previously been outlined by the court on November 1, 1979, in an entry designated as "Memorandum Decision."
On June 17, 1981, appellee filed a motion for an order to have appellant show cause why he should not be held in contempt of court. The motion asserted that appellant had failed to comply with the prior order concerning the parties' life insurance policies.
A hearing was had before a referee. Steve Losivsky, district sales manager for Western-Southern Life Insurance Company, testified concerning a life insurance policy appellant maintained with the company. Losivsky stated that in March 1980, appellant took out a loan against the policy in the amount of its cash surrender value.
On the basis of this evidence, the referee held that appellant's actions were designed to defeat the court's order as expressed in the memorandum decision. He therefore recommended that appellant be held in contempt of court and sentenced to ten days in jail unless he immediately repaid the insurance company $1,996.47 plus interest, the amount needed to cancel the outstanding loan.
On November 17, 1981, the trial court adopted a modified version of the referee's recommendations. The court declined to find appellant in contempt and instead ordered him to repay the insurance company or appellee the amount of the outstanding loan within ten days. The court further ordered appellant's employer to deduct the sum of $75.75 per week from appellant's wages and remit the same to the Lake County Bureau of Support in the event he did not comply with the order within the time provided.
Appellant thereafter filed a timely notice of appeal with the court of appeals. While that action was pending, appellant was found to be in contempt by the trial court and was sentenced to ten days in jail plus a $500 fine. That decision was also appealed, and on December 6, 1982, both judgments were affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Robert M. Fertel and Sanford J. Berger, Cleveland, for appellant.
Carl H. Miller, Cleveland, for appellee Helen L. Zakany.
John E. Shoop, Pros. Atty., Gregory C. Sasse and Joseph M. Gurley, Painesville, for appellee Lake County Bureau of Support.
The present appeal raises two issues.
Appellant's first proposition of law relates to R.C. 2301.37, a bureau of support statute which sets forth certain notice requirements and related procedures to be followed in the event of an obligor's default. Appellant asserts that the trial court failed to follow this statutory scheme and therefore lacked authority to find appellant in contempt.
Without addressing the merits of this argument or the propriety of using the bureau of support as a means of enforcing the court's order, we note that appellant's proposition was not assigned as error in the court below or briefed by either party. Accordingly, it is not properly before us for consideration now. Blausey v. Stein (1980), 61 Ohio St.2d 264, 266-267, 400 N.E.2d 408 ; Republic Steel Corp. v. Bd. of Revision (1963), 175 Ohio St. 179, 192 N.E.2d 47 .
Appellant's remaining proposition of law asserts that he should not have been found in contempt of court as he did not disobey any court order. In support of this assertion, appellant notes that he borrowed on the insurance policy following the memorandum decision but before the final decree for divorce was actually rendered and journalized. Appellant theorizes that since a court "speaks through its journal" under Civ.R. 58, 1 there was no actual order in existence at the time of appellant's loan, and, hence, no basis for the trial court's finding of contempt on his part.
Appellant's argument is defective as it rests upon the erroneous assumption that he was held in contempt of court for violating the provisions of the memorandum decision as opposed to the court's final decree. The reality is...
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