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Ruben v. Ruben

Court of Appeals of Ohio, Tenth District

September 12, 2013

Harlan G. Ruben, Plaintiff-Appellant,
v.
Lisa M. Ruben, Defendant-Appellee.

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations C.P.C. No. 03DR-2900

Eugene R. Butler Co., LPA, and Eugene R. Butler, for appellant.

Golden & Meizlish Co., LPA, and Keith Golden, for appellee.

DECISION

TYACK, J.

(¶ 1} Plaintiff-appellant, Harlan G. Ruben, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, finding him in contempt of a March 9, 2005 Agreed Judgment Entry-Decree of Divorce for failure to pay spousal support to, and obtain life insurance benefiting, his former wife, Lisa M. Ruben. Because the trial court did not abuse its discretion in finding Harlan in contempt of court but abused its discretion in failing to provide Harlan with the opportunity to purge the contempt, we affirm in part and reverse in part.

Facts and Procedural History

(¶ 2} Harlan and Lisa divorced by an Agreed Judgment Entry-Decree of Divorce ("divorce decree") filed March 9, 2005. Under the terms of the parties' separation agreement, which the court incorporated into the divorce decree, Harlan agreed to a non- modifiable obligation to pay Lisa $840, 000 in spousal support over a 10-year period through 120 consecutive monthly installments of $7, 000, commencing on April 15, 2005. Harlan further agreed, "[f]or so long as [Harlan] has a spousal support obligation to [Lisa], " to "maintain a life insurance policy designating [Lisa] as the beneficiary, in an amount equal to the after tax present value using a five percent (5%) discounted rate, of the spousal support that still exists." (R. 719: Separation Agreement, at ¶ 11.) Despite their initial agreement, the parties have been before the trial court regarding matters related to their spousal support arrangement on multiple occasions. Accordingly, this case has a long and voluminous procedural history, which we only briefly summarize.

(¶ 3} On May 20, 2009, Lisa filed a contempt motion alleging Harlan "failed and refused to pay his support obligation." (R. 1058-59.) After an August, 2009 hearing, the trial court filed a judgment entry on November 24, 2009, finding Harlan guilty of contempt for failing to pay spousal support as ordered in the divorce decree. In the meantime, on September 11, 2009, Lisa filed another contempt motion against Harlan, alleging he "continue[d] to willfully fail and refuse to pay his support obligation." (R. 1093-94.)

(¶ 4} On December 29, 2009, the trial court filed an Agreed Judgment Entry-Contempt, finding that Lisa and Harlan had "resolved the outstanding motions for contempt." (R. 1106: Dec. 29, 2009 Agreed Judgment Entry-Contempt, ¶ 1.) The contempt entry detailed provisions regarding Harlan's obligations and his payments over the prior 16-month period. The court concluded that "so long as [Harlan] pays the sum of $31, 964.53, along with the January 2010 spousal support payment of $7, 000.00, on or before January 5, 2010, [he] is and has been in substantial compliance with his obligation of spousal support, " and upon these payments, "the pending motion for contempt shall be dismissed with prejudice and * * * the prior entry of contempt filed November 24, 2009 shall be set aside and vacated." (R. 1106 at ¶ 6-7.) The record indicates Harlan made the necessary payments.

(¶ 5} Lisa filed a new motion for contempt on August 20, 2010, alleging Harlan refused to pay the agreed spousal support. After a November 2010 hearing, the trial court filed a Judgment Entry on December 20, 2010, finding Harlan guilty of contempt for failing to pay spousal support. In a February 15, 2011 entry, the court found Harlan "paid directly to [Lisa] the sum of $42, 000 by check on Jan[.] 14, 2011. Said sum represents payment in full of all sums owed * * * through 12-31-10." (R. 1156.)

(¶ 6} Lisa filed yet another new motion for contempt against Harlan on September 16, 2011 for failure to pay spousal support. Lisa followed with the contempt motion with a motion filed February 13, 2012 to reduce Harlan's spousal support arrears to judgment. Lisa filed still an additional motion for contempt against Harlan on March 22, 2012, alleging he violated the divorce decree by failing to maintain a life insurance policy designating her as the beneficiary.

(¶ 7} The trial court held a hearing on Lisa's motions on April 9, 2012, found Harlan in contempt of court for failure to pay spousal support and for failure to maintain a life insurance policy collateralizing his spousal support obligation, and, on April 24, 2012, filed a judgment entry journalizing its hearing findings. The trial court sentenced Harlan to 30 days in jail for the 2 contempt convictions, but set the matter "for further hearing" on July 30, 2012. The court further granted judgment to Lisa for $75, 652.78 plus interest and costs, based on the parties' April 19, 2012 "Stipulation as to Spousal Support Arrears." (R. 1228: Apr. 19, 2012 Stipulation as to Spousal Support Arrears.)

(¶ 8} Harlan did not take any action in response to the contempt convictions, and on July 30, 2012, the court issued a nunc pro tunc judgment entry substantially the same as the April 24, 2012 entry. The trial court certified the nunc pro tunc judgment entry as a final appealable order.

Assignments of Error

(¶ 9} Harlan appeals, assigning two errors:

[I.] The Trial Court Erred as a Matter of Law in Failing to Include Purge Conditions for the Civil Contempt.
[II.] The Trial Court Abused its Discretion in Failing to Find the Defense of Financial Impossibility was Proven. Because a finding of contempt necessarily precedes a sanction for contempt, we ...

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