Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 11-19-2020
Case Style:
JENNIFER L. JOHNSON v. DAVID L. JOHNSON
Case Number: 2020-CA-7
Judge: Mary Donovan
Court: Dayton, Ohio
Plaintiff's Attorney:
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Dayton, Ohio - Divorce lawyer represented defendant David L. Johnson with appealing 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.
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
-3-
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 onehalf 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.
-4-
Id. at ¶ 77.1
{¶ 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.
1 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.
-5-
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-Ohio5036, 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
-6-
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-Ohio4254, 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
-7-
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).
-8-
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
-9-
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.
-10-
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-Ohio6264, ¶ 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
-11-
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
-12-
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. 10AP950, 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
-13-
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
-14-
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.
-15-
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.
Outcome: All of David’s assignments of error having been overruled, the judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: