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Karen Mcconnell v. Randy Mcconnell

February 7, 2013

KAREN MCCONNELL, PLAINTIFF-APPELLANT,
v.
RANDY MCCONNELL, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: McFarland, P. J.

Cite as McConnell v. McConnell,

DECISION AND JUDGMENT

ENTRY

{¶1} Appellant, Karen McConnell, appeals the judgment of the Washington County Court of Common Pleas, finding her in contempt for failure to follow the terms of the separation agreement in relation to real estate owned by herself and Appellee, Randy McConnell, as required by the parties' divorce decree. On appeal, Appellant contends that 1) the trial court erred and abused its discretion by imposing conditions that are unreasonable, and that make compliance impossible; and 2) she was denied her Sixth Amendment right to the effective assistance of counsel.

{¶2} In light of our finding that Appellant failed to raise impossibility of compliance as a defense at the trial court level, we will not consider it for the first time on appeal. As such, Appellant's first assignment of error is overruled. With regard to Appellant's second assignment of error, even if Appellant's trial counsel had called the witnesses and raised the issues Appellant mentioned, we cannot conclude that it would have changed the outcome of the trial. Thus, we cannot conclude that Appellant was deprived of the effective assistance of counsel and Appellant's second assignment of error is, therefore, overruled. Accordingly, having overruled both of Appellant's assignments of error, the decision of the trial court is affirmed.

FACTS

{¶3} The parties were divorced on December 30, 2002. The divorce decree provided that the parties had entered into an oral separation and property settlement agreement, which was recited into the decree. With regard to the real estate owned by the parties, the decree provided, in pertinent part, as follows:

"The parties own real property located at 203 Oak Drive, Little Hocking, Ohio. Wife shall have exclusive right of user for two

(2) years beginning January 1, 2003. Husband shall be responsible for payment of the mortgage, taxes and insurance on said real property during that period of time. The payment shall be deemed "In the Nature of Spousal Support" and non-dischargeable in any bankruptcy proceeding. At the conclusion of the two (2) year period, Wife shall have the option to buy out Husband at a price to be agreed upon at that time or to elect that the property be sold with all net proceeds after customary expenses of sale and a credit for principal reduction to Husband being divided equally. * * * Major repairs, if required, shall be the responsibility of Husband who shall receive a credit for one-half (1/2) of those repairs at the time of the sale or buy out."

On October 7, 2009, Appellee filed a motion to show cause as to why

Appellant should not be held in contempt for her willful failure to abide by the prior court order. In his memorandum in support of the motion, Appellee claimed that despite the terms of the separation agreement, he had permitted Appellant and the parties' minor child to live in the marital residence until the child turned eighteen, which occurred on January 2, 2007. Appellee further claimed that since that time Appellant had refused to buy him out, or to place the house for sale.

{¶4} Appellant requested counsel be appointed, and after going through several court appointed attorneys, the matter proceeded to a hearing on the issue of contempt on January 21, 2011. Appellant, Appellee, and attorney Rustin Funk testified at the hearing. Appellant testified that after the parties were divorced that they reconciled and lived together at the marital residence. She also testified that subsequent to the parties' divorce and during the time that she and Appellee were living together, she executed a quitclaim deed to Appellee on February 17, 2006. She testified that Appellee was present at attorney Rustin Funk's office, the attorney who prepared the deed, and that it was signed pursuant to an arrangement between Appellee and Appellant's parents.*fn2 Appellee testified that he didn't remember going to Funk's office, did not sign the deed and never intended to give Appellant a life estate in the marital property.

{¶5} Attorney Rustin Funk also testified at the hearing regarding his preparation of the quitclaim deed. His testimony will be set forth more fully, infra, in our consideration of Appellant's second assignment of error. After hearing testimony, the trial court took the matter under advisement. The trial court subsequently issued a Ruling on Contempt Motion on February 16, 2011, finding Appellant in contempt. A journal entry was then filed on March 9, 2011, finding Appellant in contempt, imposing three days in the Washington County jail and giving Appellant an opportunity to purge her contempt, which included cooperation in the listing of the house for sale. It is from this journal entry that Appellant now brings her appeal, assigning the following assignments of error for our review.

ASSIGNMENTS OF ERROR

"I. THE COURT OF COMMON PLEAS ERRED THROUGH ABUSING ITS DISCRETION BY IMPOSING CONDITIONS THAT ARE UNREASONABLE THAT MAKES COMPLIANCE IMPOSSIBLE.

II. APPELLANT KAREN S. MCCONNELL WAS DENIED HER SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. "

ASSIGNMENT OF ERROR I

{ΒΆ6} In her first assignment of error, Appellant contends that the trial court abused its discretion by imposing conditions that are unreasonable, and that make compliance impossible. Specifically, Appellant argues that current major repairs and mold remediation are needed on the marital residence before it can be placed on the market for sale. She also argues that as per the divorce decree, major repairs are Appellee's responsibility. She further argues that the trial court abused its ...


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