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Kolenic v. Kolenic

Court of Appeals of Ohio, Eleventh District, Geauga

March 26, 2018

JEFFREY A. KOLENIC, Plaintiff-Appellant,
v.
ELIZABETH M. KOLENIC, Defendant-Appellee.

          Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2011 DC 000845.

          Joseph P. Sontich, Jr. For Plaintiff-Appellant.

          Scott S. Rosenthal, Schoonover, Rosenthal, Thurman & Daray For Defendant-Appellee.

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} 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.

         {¶2} On August 9, 2011, Jeffrey filed a Complaint for Divorce from his wife of approximately 11 years, Elizabeth Kolenic. The couple has two children.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} A hearing was held on August 22, 2016, at which the following pertinent testimony was presented:

         {¶8} 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.

         {¶9} 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.

         {¶10} 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, ...


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