COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69122 PHYLLIS J. JACOBSON : f.k.a. STARKOFF : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HARVEY H. STARKOFF : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. CP-D-202578 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH G. STAFFORD, ESQ. JAMES C. NIXON, ESQ. JOHN J. DWYER, III, ESQ. 303 East Bagley Road STAFFORD & ASSOCIATES Berea, Ohio 44017 100 Courthouse Square 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant Harvey H. Starkoff, appeals a judgment of the Court of Common Pleas, Domestic Relations Division, which found him in contempt of court for failing to pay approximately $26,000 in real estate income and $675 in attorney fees to his former wife, plaintiff-appellee Phyllis J. Jacobson. In four assignments of error, appellant claims that the trial court abused its discretion when it found that he had the ability to pay the above-cited sums; when it awarded interest against him and when it failed to require the appellee to return a mahogany silver storage chest. Upon review, we find appellant's assignments of error to be devoid of merit. Accordingly, we affirm the judgment of the trial court. The parties herein were divorced on September 11, 1991. At that time the court, inter alia, ordered the appellee to return a set of silver flatware to the appellant and also ordered an accounting of income received by the Bay Beah Realty Company found to be jointly owned. On September 25, 1991 appellant filed a motion for a new trial. On December 30, 1992 the court denied the motion and based upon the above cited accounting ordered the appellant to pay $20,524.77 to the appellee. The court also ordered the appellant to pay $675.00 in attorney fees for failing to attend a hearing. On January 5, 1995 appellant filed a motion to show cause alleging that appellee failed to return the silver flatware. On February 8, 1995 appellee filed a motion to show cause for appellant's failure to pay $21,199.77 plus statutory interest due and owing pursuant to - 3 - the December 30, 1992 judgment. The trial court conducted hearings on the motions on February 22, 1995 and March 3, 1995. On April 10, 1995 the court found the parties to be in contempt but withheld imposition of their respective ten day sentences for thirty days to provide them with an opportunity to purge such contempt. On April 21, 1995 appellant filed a motion for a new trial which was heard on May 17, 1995 and denied on June 9, 1995. On June 6, 1995 the trial court held a hearing to determine whether the parties had fulfilled the purge conditions. The trial court found the appellee had purged herself of contempt by returning the flatware and by giving the appellant a credit for certain lost pieces. The court found the appellant had failed to purge himself of contempt and specifically found his claims regarding his inability to make payments to be lacking in credibility. On June 6, 1995 the court ordered the appellant to pay $10,000 to the appellee by June 12, 1995 and $16,145.00 by July 15, 1995 or risk imposition of the ten 1 2 day sentence. On June 8, 1995 appellant filed this appeal. I 1 The trial court journalized a half-sheet order setting forth its findings of contempt and purge conditions on June 7, 1995. See, Vol. 2610 Pg. 0897 The court set forth more extensive findings regarding the June 6, 1995 hearing in an order journalized on June 21, 1995. See, Vol. 2625 Pg. 0903. 2 Appellant's oral motion for a stay of execution pending appeal was denied by the trial court. Appellant's written motions for a stay of execution were granted by this court after he complied with orders requiring him to post a $10,000 and an additional $18,000 supersedeas bond as requested by the appellee in her opposing briefs. - 4 - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION FINDING APPELLANT IN CONTEMPT OF COURT FOR FAILURE TO PAY A PROPERTY SETTLEMENT AND DISMISSING HIS MOTION FOR NEW TRIAL. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION FINDING THE APPELLANT HAD THE ABILITY TO COMPLY WITH THE PURGE CONDITIONS. In his first and second assignments of error, appellant claims that the trial court abused its discretion in finding that he had the ability to pay when he testified that he was retired; that he received only $2,000 per month in social security after deducting expenses and mortgage payments on certain real property; that he paid for his son's legal education and wedding expenses without contribution from the appellee and that he paid for the above cited accounting and certain real estate related litigation also without 3 contribution from the appellee. Upon review, we find appellant's arguments to be unpersuasive. A reviewing court will not reverse a trial court's decision in a contempt proceeding absent an abuse of discretion. Denovchek v. Board of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16. For an appellate court to find an abuse of discretion, the record must 3 Appellant requests that we review the denial of his second motion for a new trial wherein he sought "equitable credits" for costs associated with the accounting of real estate profits and also sought "indemnification" from the appellee for expenses incurred during certain real estate related litigation. Upon review we find appellant's arguments to be unpersuasive as the parties' divorce decree does not require the appellee to pay for the accounting or litigation related expenses. Moreover, on cross-examination appellant admitted that the decree was silent with respect to these alleged obligations. See, Tr. 61, 69 March 3, 1995. - 5 - show more than an error of judgment on the part of the trial court; the record must show that the trial court's decision was unreasonable, arbitrary, or unconscionable. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. The credibility of the witnesses is primarily a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. A trial court's finding based upon substantial, credible evidence will not be disturbed on appeal. The C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Our review of the record indicates that appellant continues to practice law, albeit on a limited basis; that he owns real estate which he could have sold or refinanced to satisfy the judgment; that he sold assets to pay for his son's legal education which cost approximately $30,000 per year; that he booked and paid his travel 4 agent for a 20 day European vacation during the pendency of the instant contempt hearings and that he jointly owns a home in Florida which has equity of $240,000. Additionally, the record demonstrates sufficient evidence to support the trial court's finding that appellant's "allegation that he did not have the 5 ability to make payments was not credible." (See, Judgment Entry, 4 Appellant maintained such travel was a gift from a friend. 5 Appellant testified that he had retired from the practice of law. However, he also testified that he was concerned about possible incarceration because he was representing a client in federal court. Additionally, appellant stated that he continued to enroll in Continuing Legal Education (CLE) courses for credit. When asked why he did so despite his claim of retirement, he told the court that he continued to take CLE courses in order to receive an award given to lawyers who remain in practice for 50 years. The foregoing inconsistencies support the trial court's - 6 - Paragraph 4, Volume 2625, Pg. 904.) Hence, it was not unreasonable, arbitrary or capricious for the trial court to find that the appellant had the ability to comply with purge conditions. Appellant's first and second assignments of error are overruled. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING INTEREST AGAINST THE APPELLANT. In light of appellant's prolonged disregard of a straight forward order of the Domestic Relations Court, the trial court's award of interest was not unreasonable, arbitrary or capricious. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT REQUIRING THE APPELLEE TO RETURN THE MAHOGANY CHEST FOR THE SILVER SERVICE. It is axiomatic that a trial court speaks only through its journal entries. Schenley v. Kauth (1953), 160 Ohio St. 109, In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173 at fn. 3. The instant decree of divorce is silent with respect to the existence of a mahogany chest. Hence, the court's alleged failure to enforce an order which does not appear in the record cannot constitute an abuse of discretion. finding that appellant's claimed inability to purge contempt conditions was not credible. Also, appellant's failure to respond to the plain language of the court's unconditional order to pay a sum certain to the appellee further supports the trial court's findings as appellant has practiced law for 45 years and is well aware of his professional and legal duty to either satisfy or clarify adverse judgments on a timely basis. - 7 - Appellant's fourth assignment of error is overruled. The judgment of the trial court is affirmed. - 8 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court, Domestic Relations Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., CONCURS NAHRA, J., CONCURS IN JUDGMENT ONLY ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .