Court of Appeals of Ohio, Eleventh District, Geauga
JEFFREY A. KOLENIC, Plaintiff-Appellant,
ELIZABETH M. KOLENIC, Defendant-Appellee.
Appeal from the Geauga County Court of Common Pleas, Case No.
2011 DC 000845.
P. Sontich, Jr. For Plaintiff-Appellant.
S. Rosenthal, Schoonover, Rosenthal, Thurman & Daray For
V. GRENDELL, J.
Plaintiff-appellant, Jeffrey Kolenic, appeals from the
Judgment Entry of the Geauga County Court of Common Pleas,
Domestic Relations Division, finding him in contempt. The
issues to be determined by this court are whether a party
demonstrates an inability to pay child and spousal support as
a defense in contempt proceedings when he testifies that he
earns less money than in his past employment and whether it
is an abuse of discretion to order a party to serve a 30-day
jail term under those circumstances. For the following
reasons, we affirm the decision of the lower court.
On August 9, 2011, Jeffrey filed a Complaint for Divorce from
his wife of approximately 11 years, Elizabeth Kolenic. The
couple has two children.
Elizabeth filed a Motion to Show Cause on September 30, 2013,
alleging, inter alia, that Jeffrey failed to pay temporary
spousal support. At a hearing on that Motion, Jeffrey
testified regarding his decreased income. He was fired from a
management position at First Federal of Lakewood in March
2012, in which he made approximately $250, 000 per year,
after his assistant took a bank compliance test on his
behalf. A letter presented showed that he was terminated due
to "admission of fraudulent activity." Jeffrey was
subsequently hired as a loan officer at Huntington Bank,
receiving a $100, 000 signing bonus. He described the job as
being a "poor fit, " and that he and his boss
"did not see eye to eye." A document from
Huntington was presented that showed he was terminated around
May 2013 and was not suitable for rehire.
In a July 24, 2014 Magistrate's Decision, subsequently
adopted by the trial court, the magistrate found Jeffrey in
contempt for failure to pay support and that he did not
establish an affirmative defense, emphasizing he had been
terminated from two jobs and was responsible for the decrease
in his income.
On March 12, 2015, a Judgment of Divorce was filed. Pursuant
to the parties' separation agreement, Jeffrey was ordered
to pay $1, 500 a month toward a substantial spousal support
arrearage and $1, 000 per month in child support, until
September 1, 2015, when the child support obligation would
increase to $2, 100 per month.
Elizabeth filed an Amended Motion to Show Cause on May 27,
2016, to which she attached an affidavit alleging that
Jeffrey had not made the foregoing payments.
A hearing was held on August 22, 2016, at which the following
pertinent testimony was presented:
Jeffrey testified that he has been employed as a loan officer
at First National Bank since June of 2015. In this job, he
must "self-source" or look for business, and is
paid commissions. When he began the job he
"struggled" and had lost many of his "referral
partners, and places and areas in which [he] used to get
business from, " although he did not specify how he lost
particular clients and stated that he had continued to work
in the same community or geographical area. He testified that
business had "started to pick up" in the past few
months. Jeffrey presented his W-2 from 2015, which showed he
had been paid $15, 933 from the time he became employed at
First National. His "goal" was to earn
approximately $66, 000 in 2016.
In relation to this significant decrease in his income,
Jeffrey stated that, due to the Dodd-Frank law, the way
commissions are earned has changed. He testified that loan
officers "took anywhere from a 20 to 50 percent haircut
depending [on] where they were working." He had not paid
the support payments and medical bills as required by the
Judgment Entry of Divorce because of his decreased income.
Jeffrey testified that he lives in a home owned by his
parents and does not have to pay housing costs, although he
sometimes pays utilities. Jeffrey's father, Joseph
Kolenic, testified that he pays some of Jeffrey's bills,
but Jeffrey pays the mortgage "when he can."
Jeffrey coaches two of his children's sports teams, ...