Opinion
Appellate Case No. 2020-CA-7
11-13-2020
JENNIFER L. JOHNSON Plaintiff-Appellee v. DAVID L. JOHNSON Defendant-Appellant
JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324 Defendant-Appellant, Pro Se
Trial Court Case No. 2016-DR-171 (Domestic Relations Appeal)
OPINION
JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324 Defendant-Appellant, Pro Se DONOVAN, J.
{¶ 1} Defendant-appellant David L. Johnson, acting pro se, appeals from a judgment of the Greene County Court of Common Pleas, Domestic Relations Division, which found him in contempt for failing to remove the name of his former wife, plaintiff-appellee Jennifer L. Johnson, from certain credit card debts specified in the parties' final judgment and decree of divorce. The contempt order came as a result of a motion to show cause filed by Jennifer on November 21, 2019. David filed a notice of appeal on February 4, 2020.
{¶ 2} We set forth the history of the case in Johnson v. Johnson, 2d Dist. Greene No. 2018-CA-36, 2019-Ohio-1024 (Johnson I), and repeat it herein in pertinent part:
David L. Johnson ("David") and Jennifer L. Johnson ("Jennifer") were married on October 20, 2001, and are the parents of two minor children. Since 2001, Jennifer has worked for United Healthcare, where she is paid an annual salary plus occasional bonuses. David has been self-employed since 2001 as the sole proprietor of a computer repair and custom computer building business. Jennifer filed a complaint for divorce on July 29, 2016. The parties agreed to use June 28, 2016, the date that David vacated the marital residence, as the date of their separation for purposes of the division of property.
A hearing to determine the parties' respective incomes and to identify and categorize their assets and liabilities took place before the trial court over three dates: June 27, 2017; August 22, 2017; and October 24, 2017. On August 2, 2018, the court issued a final judgment and decree of divorce that incorporated the parties' agreement regarding custody and parenting
time, then set forth the court's determinations regarding the payment of child support and spousal support, the division of the parties' assets and liabilities, and the allocation of attorneys' fees and costs.Id. at ¶ 2-3.
{¶ 3} David appealed, and we affirmed the trial court's judgment in part and reversed it in part. Id. We remanded the case "for the limited purpose of addressing" four issues:
1) as to the order for distribution of property, for failing to articulate, consistent with R.C. [3105].171, why David's claimed inheritance was regarded as marital property and not as David's separate property; 2) as to the order regarding tax refunds/liabilities, for failing to order Jennifer to pay David both one-half of that portion of Jennifer's federal income tax refund for 2016 attributable to the months before the parties separated and one-half of that portion of David's $346 federal income tax liability for 2016 attributable to the months before the parties separated; 3) as to the orders for spousal support and child support, to accurately reflect the amount of David's imputed annual income, and to make any corresponding changes warranted in the amount of spousal support and/or child support to be paid; and 4) as to the award of attorney's fees, for failing to address whether David should have been credited for a $750 payment previously made to Jennifer.Id. at ¶ 77.
We note that David also filed a separate appeal of a prior judgment of the trial court holding him in contempt of a separate agreed order entered into with Jennifer following their divorce. In that case, we affirmed the judgment of the trial court holding David in contempt. See Johnson v. Johnson, 2d Dist. Greene No. 2019-CA-46, 2020-Ohio-1644. --------
{¶ 4} Following our remand, the trial court issued an order addressing these issues on August 23, 2019. David appealed the trial court's judgment, and we concluded that the trial court had erred by ordering David to seek work and by ordering Jennifer to pay David his share of her tax refund offset by her share of his tax debt. Rather than remanding the case for the trial court to correct its judgment, we modified the trial court's judgment in two respects: (1) the seek-work order was vacated, and (2) for the parties' 2016 tax refund and liability, Jennifer was ordered to pay David $1,165.75. We affirmed the trial court's judgment as modified. See Johnson v. Johnson, 2d Dist. Greene No. 2019-CA-58, 2020-Ohio-4085, ¶ 30 (Johnson II).
{¶ 5} As previously stated, on November 21, 2019, Jennifer filed a motion to show cause regarding David's failure to remove her name from certain credit card debts specified in the parties' divorce decree. A hearing was held on the motion to show cause on January 8, 2020. Jennifer attended the hearing represented by counsel. David did not attend the hearing even though the trial court found that service of notice of the hearing date had been perfected on him. January 10, 2020, Judgment Entry p. 1. Ultimately, the trial court held David in contempt.
{¶ 6} Based upon its finding that David was in contempt, the trial court ordered him to serve a sentence of 90 days in jail. However, the trial court set forth conditions for David to satisfy in order to purge the contempt finding and suspend the jail sentence. The trial court also scheduled a hearing date of April 8, 2020, for David's sentencing on the contempt finding and for Jennifer to present evidence regarding her costs for the filing and prosecution of the motion to show cause.
{¶ 7} It is from this judgment that David now appeals.
Final Appealable Order
{¶ 8} Initially, we note that Jennifer asserts that the trial court's January 10, 2020 judgment was not a final appealable order and that David's appeal should therefore be dismissed. " 'When determining whether a judgment or order is final and appealable, an appellate court engages in a two-step analysis. First, the court must [ordinarily] determine if the order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C. 2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the order contains a certification that there is no just reason for delay.' " LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43 N.E.3d 504, ¶ 18 (2d Dist.), quoting Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 2013-Ohio-5036, 4 N.E.3d 1087, ¶ 7 (10th Dist.). (Other citation omitted.)
{¶ 9} As previously stated, the January 10, 2020 judgment found David to be in contempt, and the trial court ordered him to serve a sentence of 90 days in jail. Furthermore, the trial court set forth conditions for David to satisfy in order to purge the contempt finding and suspend the jail sentence. The trial court also scheduled a hearing date for David's sentencing on the contempt finding and for Jennifer to present evidence regarding her costs for the filing and prosecution of the motion to show cause.
{¶ 10} Appellate courts have jurisdiction over judgments or "final orders." Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.03(A). Final orders are those that dispose of the whole case or some separate and distinct subdivision of it while leaving nothing for future determination. VIL Laser Sys., L.L.C. v. Shiloh Indus., Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8.
{¶ 11} When contempt sanctions are imposed to enforce compliance by coercive means, then the contempt proceeding is civil. Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988). Punishment imposed for a finding of civil contempt must afford the contemnor an opportunity to purge himself of contempt. Fry v. Fry, 64 Ohio App.3d 519, 523, 582 N.E.2d 11 (3rd Dist.1989). "[A] court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court." Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 23. "[A] contemnor may have an additional appeal on the question whether the purge conditions have been met following execution of sentence on the failure to purge." Id. Thus, in light of the holding in Docks, the trial court's January 10, 2020 judgment finding David in contempt and setting forth purge conditions was a final appealable order and is properly before this Court.
{¶ 12} We note that the trial court's January 10, 2020 judgment did not include the Civ.R. 54(B) final appealable order language. However, we have previously held that a Civ.R. 54(B) certification is not required to make a contempt order final and appealable. Barton v. Barton, 2017-Ohio-980, 86 N.E.3d 937, ¶ 59 (2d Dist.), citing Contos v. Monroe Cty., 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380, ¶ 12, and Docks at ¶ 23 ("a court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court"). Thus, the Civ.R. 54(B) "no just reason for delay" language was not needed to make the order a final appealable order. In light of the Ohio Supreme Court's decision in Docks and our decision in Barton, the trial court's judgment entry issued on January 10, 2020, was a final appealable order, and we will treat it as such.
{¶ 13} Because they are interrelated, David's first and second assignments of error will be discussed together:
JUDGE HURLEY ERRED WHEN HE RULED THAT SERVICE WAS PERFECTED ON THE DEFENDANT FOR THE HEARING. SINCE SERVICE WAS NOT PERFECTED ON THE DEFENDANT, THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE.
SINCE SERVICE WAS NOT PERFECTED ON THE DEFENDANT, THE TRIAL COURT ERRED BY CONDUCTING THE HEARING ON JANUARY 8, 2020 THEREBY SUBSTANTIALLY HARMING HIS RIGHTS TO A FAIR HEARING. THE APPELLANT WAS NOT GIVEN SUFFICIENT TIME TO ANSWER THE MOTION, MOUNT A DEFENSE, OR EVEN ATTEND THE HEARING.
{¶ 14} In his first and second assignments, David contends that because service was not perfected on him, the trial court erred when it ruled on the issues presented at the hearing held on January 8, 2020, specifically with respect to Jennifer's motion to show cause why he should not be held in contempt for his failure to remove her name from certain credit card debts specified in the parties' divorce decree.
{¶ 15} The plaintiff bears the burden of obtaining proper service on a defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). Service of process must be " 'reasonably calculated to apprise interested parties of the action and to afford them an opportunity to respond.' " Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
{¶ 16} Where the plaintiff follows the Ohio rules governing service of process, courts presume that service is proper, unless the defendant rebuts this presumption with sufficient evidence of nonservice. Mitchell v. Babickas, 8th Dist. Cuyahoga No. 105294, 2018-Ohio-383, ¶ 10, citing McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio-29, ¶ 49-50. To rebut the presumption of proper service, the defendant must produce "evidentiary-quality information" that demonstrates he or she did not receive service. Mitchell at ¶ 10, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23. This evidence must be uncontradicted. Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984). "It is reversible error for a trial court to disregard unchallenged testimony that a person did not receive service." Id.
{¶ 17} The record establishes that on November 21, 2019, Jennifer filed her motion to show cause, alleging that David had failed to abide by the terms of the divorce decree. On the same day, the trial court issued an order for David to appear at a hearing on the motion to show cause on January 8, 2020, at 8:30 a.m. On November 21, 2019, the Greene County Clerk of Courts sent a civil summons for contempt, Jennifer's motion to show cause, and the trial court's order to appear at the show cause hearing to David by certified mail at his listed address, P.O. Box 364 in Fairborn, Ohio. On December 23, 2019, the Clerk of Courts notified Jennifer that service upon David had been unsuccessful because the contempt summons and accompanying documents had been returned as unclaimed.
{¶ 18} On January 3, 2020, the Clerk of Courts re-issued the contempt summons and accompanying documents and sent them by regular mail to the same address listed for David. David claims in his brief that he did not receive the contempt summons until January 8, 2020, at 4:30 p.m., after the show cause hearing had been held earlier that day at 8:30 a.m.
{¶ 19} It is undisputed that the first contempt summons sent by certified mail was unclaimed by David, and service was therefore unsuccessful. However, the record establishes that the second contempt summons was re-issued by the Clerk of Courts and properly sent by regular mail pursuant to Civ.R. 5 on January 3, 2020, five days before the show cause hearing before the trial court. As previously stated, to rebut the presumption of proper service, a defendant must produce "evidentiary-quality information" that demonstrates that he or she did not receive service. There is no evidence in the record that the second contempt summons was returned indicating failure of delivery. Except for his bare assertion that he did not receive service of the second contempt summons until 4:30 p.m. on January 8, 2020, David failed to produce any evidentiary-quality information that rebutted the presumption that he was properly served with the contempt summons and accompanying documents. Accordingly, the trial court did not err when it found that service of the second contempt summons was perfected upon David.
{¶ 20} Additionally, we note that a trial court's finding of contempt will not be disturbed on appeal absent an abuse of discretion. State ex rel. Delco Moraine Div., Gen. Motors Corp. v. Indus. Comm., 48 Ohio St.3d 43, 44, 549 N.E.2d 162 (1990); State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 21} Where contempt is civil in nature, some courts have found that the civil rules regarding notice apply. Home Savings and Loan Co. v. Midway Marine, Inc., 7th Dist. Mahoning No. 10 MA 109, 2012-Ohio-2432, ¶ 23, citing Bierce v. Howell, 5th Dist. Delaware No. 06 CAF 05 0032, 2007-Ohio-3050. We have stated that, "[i]nasmuch as there is no specified manner of process required for the filing of a motion for civil contempt, a person serving such a motion may do so in any manner authorized by the Ohio Rules of Civil Procedure." In re I.U., 2d Dist. Champaign No. 2007-CA-9, 2007-Ohio-6264, ¶ 12, quoting Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 346, 632 N.E.2d 916 (1993). Specifically, because a motion for contempt is a written motion as contemplated by Civ.R. 5, process may be served in accordance with the methods permitted by that rule, i.e., by delivery, facsimile transmission, or ordinary mail service to the party or attorney representing that party. Quisenberry at 346. Relevant to this case, service under the rule may also be made by "mailing it to the person's last known address by United States mail, in which event service is complete upon mailing." Civ.R. 5(B)(2)(c).
{¶ 22} In Rowan v. Kemery, 5th Dist. Licking No. 10 CA 117, 2011-Ohio-2307, the court noted that Civ.R. 6(D) states in pertinent part: "A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than seven days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court." Under this rule, a party is entitled to sufficient notice and time to prepare for a hearing in order to avoid undue prejudice. On July 1, 2019, Civ.R. 6(D) was changed by the legislature so that Civ.R. 6(C)(2) now requires service of notice upon a defendant 14 days prior to a contempt hearing.
{¶ 23} However, Civ.R. 1(C)(8) provides that a civil rule shall not apply to special statutory proceedings to the extent that it would "by its nature be clearly inapplicable." A civil rule is clearly inapplicable when its application "will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action." A contempt proceeding is a special proceeding and is regarded as sui generis in that it is neither civil nor criminal. Denovchek, 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988).
{¶ 24} In every case involving indirect contempt, such as here, the alleged contemnor is entitled to formal notice and a hearing before the adjudication and punishment. This due-process guarantee is memorialized in R.C. 2705.03, which provides that "a charge in writing shall be filed with the clerk of the court, and entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel." Barton, 2017-Ohio-980, 86 N.E.3d 937, at ¶ 143. The function of the written notice is similar to that of a complaint in an action — "to apprise the defendant of the charges against him so that he is able to prepare his defense," City of Cincinnati v. Cincinnati Dist. Council 51, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO, 35 Ohio St.2d 197, 203, 299 N.E.2d 686 (1973).
{¶ 25} Furthermore, R.C. 2705.05(A) requires a court to conduct a hearing to "investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge." We have stated that under R.C. 2705.03, "an individual charged with indirect contempt must be provided with the following minimum constitutional due process protections: (1) notice of the charge of indirect contempt; (2) a hearing; (3) defense counsel; and (4) an opportunity to testify and call other witnesses." Bucci v. Bucci, 2d Dist. Greene No. 2012-CA-63, 2013-Ohio-1689, ¶ 9, citing Hillman v. Edwards, 10th Dist. Franklin No. 10AP-950, 2011-Ohio-2677, ¶ 29, and Courtney v. Courtney, 16 Ohio App.3d 329, 332, 475 N.E.2d 1284 (3d Dist.1984).
{¶ 26} Therefore, an indirect contempt hearing is a special proceeding falling outside the purview of Civ.R. 6(C)(2)'s requirement that the defendant be provided with 14 days notice of the hearing date. Rather, pursuant to R.C. 2705.03, the trial court had the discretion to limit David's notice of the hearing date to five days when notice was perfected upon him on January 3, 2020, regarding the indirect contempt hearing scheduled for January 8, 2020, at 8:30 a.m. Simply put, given that an indirect contempt hearing is a special proceeding under R.C. 2705.03, the trial court was under no obligation to provide David with additional time to respond to the summons and prepare his defense.
{¶ 27} David's first and second assignments of error are overruled.
{¶ 28} David's third assignment of error is as follows:
JUDGE HURLEY ERRED WHEN HE ISSUED THE JUDGMENT ENTRY ON ISSUES STILL UNDER APPEAL AT THE SECOND DISTRICT COURT OF APPEALS (2019-CA-0058).
{¶ 29} In his third assignment, David argues that the trial court erred when it ruled upon issues that were then being adjudicated in a separate appeal before this Court.
{¶ 30} As previously stated, on November 21, 2019, Jennifer filed a motion to show cause regarding David's failure to remove her name from certain credit card debts specified in the parties' divorce decree. In its January 10, 2020 judgment, the trial court held David in contempt and sentenced him to 90 days in jail. The trial court further held that David could purge the contempt finding if he satisfied the following conditions prior to the purge hearing scheduled for April 8, 2020: 1) pay Jennifer $17,666.10 for his portion of the credit card debt; 2) pay Jennifer $1,050.17 for his portion of the balance transfer fees incurred by Jennifer; 3) pay Jennifer $43.38 for his portion of the interest incurred by Jennifer; and 4) pay Jennifer $350 for attorney fees incurred for the motion to show cause filed on November 21, 2019.
{¶ 31} Upon review, we conclude that the trial court's judgment addressing Jennifer's motion to show cause did not address any issues that were pending in Johnson II, 2d Dist. Greene No. 2019-CA-58, 2020-Ohio-4085, which was issued on August 14, 2020. Simply put, the issue raised in Jennifer's motion to show cause (i.e., David's failure to remove Jennifer's name from certain credit card debts) was not addressed in any way in Johnson II. Therefore, the trial court's January 10, 2020 judgment pertained to issues separate and distinct from the issues addressed and ruled upon in Johnson II.
{¶ 32} David's third assignment of error is overruled.
{¶ 33} David's fourth and final assignment of error is as follows:
JUDGE HURLEY ERRED AS A MATTER OF LAW AND ABUSED HIS DISCRETION AND DEMONSTRATED HIS BIAS AGAINST THE DEFENDANT (AND PRO SE DEFENDANTS IN GENERAL) SINCE HE REQUIRES ALL PRO SE DOCUMENTS TO BE CLEARED BY HIS COMPLIANCE OFFICER PRIOR TO FILING.
{¶ 34} David argues that the trial court was biased against him and pro se defendants in general because of certain procedures implemented by the court. Specifically, David asserts that Greene County's D.R. Loc.R. 5.05 violates due process because it requires a pro se litigant's filing to be reviewed and approved by the court's Compliance Office prior to it being filed. D.R. Loc.R. 5.05 states as follows:
All post decree Motions of any kind filed by pro se (unrepresented by counsel) parties must be in required form and will be reviewed and approved by the Compliance Office of the Domestic Relations Court. The pro se document shall not be filed with the Clerk of Courts until it has been endorsed by the Compliance Office. The Clerk of Courts of Greene County, Ohio, shall not accept any such Motion for filing unless the approval of the Compliance Office is affixed thereon. In the event that such post decree Motion is found insufficient in any respect by the Compliance Office, the party seeking to file such Motion shall be notified.
{¶ 35} David argues that the Compliance Office acts in a dilatory manner in reviewing and approving pro se litigants' documents to be filed. Without identifying the document, David claims that the Compliance Office required seven days to approve one of his filings without making any changes. However, other than arguing that, in his opinion, the Compliance Office took an excessive amount of time to approve one of his unidentified filings, David fails to establish how he was specifically prejudiced by D.R. Loc.R. 5.05's requirement that his filings be reviewed by the Compliance Office before they could be filed. D.R. Loc.R. 5.05 applies to all pro se litigants.
{¶ 36} In addition, we must stress that "we have consistently held that pro se litigants are held to the same standards as other litigants." Cox v. Oliver, 2d Dist. Montgomery No. 26515, 2015-Ohio-3384, ¶ 20. "Litigants who choose to proceed pro se are presumed to know the law and correct procedure * * *." Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). D.R. Rule 5.05 simply helps to insure the filings drafted by pro se litigants follow the rules of civil procedure in a domestic relations setting. Furthermore, David has failed to adduce any evidence that he was unfairly affected or otherwise prejudiced by D.R. Loc.R. 5.05. Therefore, the trial court did not abuse its discretion by implementing D.R. Loc.R. 5.05.
{¶ 37} David's fourth assignment of error is overruled.
{¶ 38} All of David's assignments of error having been overruled, the judgment of the trial court is affirmed. WELBAUM, J., concurs. FROELICH, J., concurs:
{¶ 39} I do not doubt that "a court may impose restrictions upon recalcitrant litigants who file numerous frivolous or malicious claims." White v. Detroit Diesel Allison Engine Plant Truck and Bus/GM Corp. Div., 2d Dist. Montgomery No. 13178, 1992 WL 274632, *2 (October 8, 1992). However, "clearly, a blatant prohibition against proceeding in forma pauperis would not pass constitutional muster." Id. at *3.
{¶ 40} Similarly, there would seem to be a violation of the Open Court's provision in Article I, Section 16 of the Ohio Constitution to prohibit a litigant from proceeding pro se. See, e.g., Rue v. Rue, 169 Ohio App.3d 160, 2006-Ohio-5131, 862 N.E.2d 166, ¶ 63 (2d Dist.).
{¶ 41} While Greene County D.R. Loc.R. 5.05 does not explicitly prohibit a pro se filing, a required prior "endorsement" by the "Compliance Office" may have the same effect. Here, David suggests that he was prejudiced by this requirement, but I agree with the majority that, on this record, there is no indication of the effect of the Rule or any prejudice. Copies sent to: Jay A. Adams
David L. Johnson
Hon. Steven L. Hurley