COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71164 LYNN BACHAROWSKI : : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : WALTER BACHAROWSKI : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-D-211938 JUDGMENT: Affirmed in part and Reversed and Remanded in part. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: HERBERT PALKOVITZ, ESQ. 1600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1753 For Defendant-Appellant: RICHARD A. RABB, ESQ. MCCARTHY, LEBIT, CRYSTAL & HAIMAN 1800 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 JEFFREY A. HUTH, ESQ. PASSALACQUA & SEIFERT 2830 Franklin Blvd. Cleveland, Ohio 44113 -2- DYKE, P.J.: Defendant Walter Bacharowski appeals from the judgment of the trial court which: (1) denied his motion to modify spousal and child support obligations; (2) determined that defendant had incurred spousal and child support arrearages of $98,5672 and found him in contempt of court; and (3) and awarded plaintiff Lynn Bacharowski attorney fees in connection with defendant's failure to quit claim his interest in the marital home to plaintiff. For the reasons set forth below, we affirm in part and reverse and remand in part. The parties were married on April 3, 1971. Two children were born as issue of the marriage: Kara (d.o.b. April 27, 1974) and Kristen (d.o.b. March 12, 1977). On July 15, 1991, plaintiff filed a complaint for divorce, parental rights of the children, and other relief. The matter proceeded to trial in late 1993. Thereafter, on March 4, 1994, the trial court issued a final judgment granting the parties a divorce. The court's entry further stated that Defendant has shown the ability to earn $140,000 per year, including potential earnings from his computer consulting company Trimation, Inc., which the court determined was still in existence. The court then imputed $100,000 in yearly income to him. It awarded plaintiff $25,000 for alimony and child support arrearages accumulated during the pendency of the parties' divorce, plus $11,065 as additional spousal support representing reimbursement for the payment of plaintiff's attorney fees. The trial court also awarded the marital home to plaintiff and ordered -3- defendant to execute a quit claim deed of the premises to her. Finally, the trial court ordered that defendant pay child support in the amount of $979.28 per month for Kristen who was not yet emancipated and ordered defendant to pay $2,550 per month to plaintiff for spousal support, subject to further order of the court. On May 23, 1994, plaintiff filed a motion to find defendant in contempt of court for failing to pay for spousal support as ordered, failing to pay child support as ordered, failing to pay the $25,000 prior support order, and failing to pay the $11,065 ordered as additional spousal support. On September 21, 1994, defendant filed a motion to modify the court's spousal and child support orders, maintaining that his income had dramatically decreased. In addition, he filed a motion to vacate the court's decree. Within his motion to vacate, defendant asserted, inter alia, that he had discovered that plaintiff had appropriated various marital bank accounts without his knowledge during the pendency of the parties' divorce. The trial court ultimately denied the motion to vacate and defendant does not challenge that portion of the trial court's ruling within this appeal. On December 7, 1994, plaintiff filed an additional motion to find defendant in contempt of court for failing to transfer the marital home to her. The trial court held an evidentiary hearing on plaintiff's and defendant's motions on October 17, 1995. For her evidence, -4- plaintiff presented the testimony of defendant as if upon cross- examination. She and her attorney also testified. Defendant testified as if upon cross-examination that he is a marketing manager for NEC Electronics and earns $79,000. With regard to the claim for arrearage, defendant stated that he has made child support payments as required by the court's March 4, 1994 order. Defendant had canceled checks totaling $7,700 representing child support payments and stated that he had also paid additional sums. He indicated, however, that all of his payments have been made through the Child Support Enforcement Agency. (Tr. 10-12). Neither party introduced these records into evidence, however. Defendant also admitted that he had made none of the required spousal support payments and admitted that he did not prepare a deed transferring the marital home to plaintiff. (Tr. 15). Defendant also admitted that he had not made any payment toward the $25,000 spousal support arrearage which had accrued prior to January 1994 and had not made any payment toward the award of additional spousal support of $11,065. (Tr. 19-20). Defendant further acknowledged that his employment at NEC has continued from the time preceding the divorce to the present. In addition, his salary at NEC has increased by $19,000 per year from the rate at the time of the parties' divorce. Defendant stated that at the time of the parties' divorce, he was the sole owner and sole shareholder of Trimation, Inc. but in June 1994, he dissolved this company pursuant to a covenant not to compete contained within -5- his employment contract with NEC. Plaintiff testified that she asked defendant for his quit claim deed of the marital residence but he refused to prepare one. Finally, plaintiff's evidence demonstrated that defendant had paid none of the $11,000 awarded to plaintiff as additional support for attorney fees for the divorce and she has also incurred additional fees and expenses of $11,265, based upon her counsel's hourly fee of $200, for post-decree enforcement of the various awards. Proceeding to defendant's evidence, defendant set forth his earnings history for the court. Beginning in 1990, defendant claimed a net loss of income of $1,006.95 from Trimation, plus earnings of $72,000 from National Semiconductor. For 1992, he earned $32,000 from Trimation with no other earnings. Defendant was hired by NEC in June 1993, and in 1994, he earned $75,908.98 from this employment. Defendant testified that when he was first hired by NEC Electronics, he signed an employment contract which contained a no compete clause. In compliance with this provision, defendant stopped the operations of Trimation then formally dissolved the corporation in March 1994. The trial court subsequently determined that defendant had accumulated both spousal and child support arrearages which totaled $98,562.76 and it found defendant in contempt of court. The court also denied defendant's motion to modify the child support and spousal support payments, finding that defendant had not demonstrated that his earning capacity had diminished. Finally, the trial court denied plaintiff's motion to show cause filed in -6- connection with defendant's failure to promptly quit claim his interest in the marital home to her but awarded plaintiff her attorney fees for this conduct, and further ordered that defendant could purge himself of the contempt finding by paying $51,000 toward his total arrearage. Defendant now appeals and assigns a total of eight errors for our review. For the sake of clarity, we will address some of the assignments of error out of their predesignated order. Defendant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO MODIFY SPOUSAL AND CHILD SUPPORT. Within this assignment of error, defendant challenges the trial court's denial of his motion to modify the spousal and child support obligations set in the March 4, 1994 order. Specifically, defendant challenges the trial court's determination that defendant has not demonstrated that he is no longer capable of meeting his support obligations, and maintains that his computer consulting company, Trimation, Inc., was completely dissolved at the time of the court's hearing on the motion to modify. Where modification of spousal support is requested, the threshold question is whether the trial court retained jurisdiction to modify the provision of its order and whether the circumstances of a party had changed. R.C. 3105.18(E). Wolding v. Wolding (1994), 82 Ohio App.3d 235, 239. An inquiry into the existence of a change in circumstances must commence from the date of the original order. Binghamv. Bingham (1983), 9 Ohio App.3d 191, 193. -7- A court does not abuse its discretion in denying a motion to modify where the alleged change of circumstances are the result of circumstances purposely brought about by party seeking modification,Roach v. Roach (1989), 61 Ohio App.3d 315, 319. The key concern is whether there is voluntary unemployment or underemployment. R.C. 3105.18; McLemore v. McLemore (October 19, 1994), Montgomery App. No. 13802, unreported. On review to this court, the essential question is whether the trial court abused its discretion. Shanley v. Shanley (1989), 46 Ohio App.3d 100, 100. Likewise, in order to obtain a modification of a child support obligation, the obligor must establish a change in gross income which would result in a new support amount, as recalculated pursuant to the statutory child support guidelines, which is more than ten percent greater or more than ten per cent less than the amount as set forth in the existing support order. R.C. 3113.215(B)(4). A trial court may consider the obligor's potential income, derived in relation to any voluntary under- or unemployment.See R.C. 3113.215(A)(5). See, also, Rock v. Cabral (1993), 67 Ohio St.3d 108, 111, wherein the Supreme Court stated: [I]n calculating and awarding child support, a trial court must consider the `potential income' as well as the gross income of a parent the court determines to be voluntarily unemployed or voluntarily underemployed. Finally, appeals which challenge rulings rendered upon motions to modify child support require this court to determine whether the trial court abused its discretion. Rock v. Cabral, supra. Applying the foregoing, we note that, in its March 1994 order, -8- the trial court imputed earnings to defendant based upon its determination that Trimation was still in existence. The evidence submitted in support of defendant's motion to modify was that Trimation is no longer in existence and was terminated pursuant to the non-compete provision of defendant's employment contract with NEC Electronics. Thus, it was established that defendant's termination of this company was not voluntary. We therefore conclude that the trial court erred in continuing to impute income to defendant and that it abused its discretion in denying defendant's motions to modify his support obligations. The first assignment of error is meritorious. Defendant argues his second and third assignments of error together. They state: THE TRIAL COURT ERRED IN FINDING A SPOUSAL AND CHILD SUPPORT ARREARAGE OF $98,562.72 AND HOLDING [DEFENDANT] IN CONTEMPT FOR HIS FAILURE TO PAY THAT AMOUNT. THE TRIAL COURT ERRED IN FINDING A SPOUSAL AND CHILD SUPPORT ARREARAGE OF $98,562.72, WHEN THE MOVANT PRESENTED ABSOLUTELY NO EVIDENCE OF THE AMOUNT OF THE ARREARAGE IN EITHER HER MOTION OR AT THE HEARING. Within these assignments of error, defendant complains that plaintiff's motion to show cause in connection with the arrearage did not meet the requirements of Loc. R. 20 of the Court of Common Pleas, Domestic Relations Division because it did not set forth the exact amount of the arrearage. Defendant further complains that at the hearing on the motion plaintiff failed to meet her evidentiary burden of proving the amount of defendant's support arrearage. Local Rule 20 provides: -9- (A) Content of Motion. Any motion to show cause shall state with specificity each provision of a prior court order with which a party has failed to comply, the date of such order, and the facts constituting the noncompliance. The motion shall be supported by affidavit. (B) Motions for Nonsupport. If the motion pertains to nonpayment of child support or spousal support the motion shall clearly set forth the date of the last order of support, the amount of said order, the total elapsed weeks or months from date of the order to date of filing of the motion, the amount which should have been paid and the amount which was actually paid during that period, and the amount of arrearages existing to the date of filing. For purposes of computing arrearages, the effective date of any order for support shall be the date of journalization of the order unless the order specifically designates some other effective date. At hearing the movant shall be prepared to update the arrearage computation to date of hearing. Thus, this rule does set forth information to be included in a motion to show cause. Nonetheless, in this instance, defendant raised no objection to the content of the motion prior to hearing. Accordingly, we conclude that the requirements of Local Rule 20 are not actually at issue herein. As to the separate issue of whether plaintiff met her evidentiary burden at the hearing on the motion, a matter which was raised below, (see Tr. 13), a prima facie case of civil contempt is made by establishing a prior court order and evidence of nonpayment according to its terms. Rossen v. Rossen (1964), 2 Ohio App.2d 381; Nielson v. Meeker (June 27, 1996), Cuyahoga App. No. 69001, unreported. The burden then shifts to the party opposing the motion to establish a defense for nonpayment. Id.; Rossen, supra. In this instance, plaintiff sought to have defendant held in contempt for failing to pay current spousal support and child -10- support, and for failing to pay the amounts set forth in the court's March 4, 1994 judgment entry. Defendant admitted as if upon cross-examination that he had not paid the required amounts for current spousal support and had not paid the amounts ordered to be paid in the March 4, 1994 judgment order. (Tr. 15, 19-20). We conclude that these admissions were sufficient to establish defendant's arrearage with respect to these items. Cf. County of Los Angeles, California v. Chaney (October 21, 1993), Cuyahoga App. No. 63754, unreported at 16; Evid. R. 801(D)(2). We therefore hold that plaintiff presented sufficient evidence to demonstrate the spousal support and prior award arrearage in this matter and the trial court acted within its proper discretion in finding defendant in contempt. This portion of the assigned error is therefore without merit. However, as to the claimed arrearage in current child support payments, defendant testified as if upon cross-examination that he had made payments and he presented canceled checks totaling $7,700.00 for which he was duly credited by the trial court. Plaintiff did not affirmatively demonstrate any deficiency in child support payments, and did not present the records of the Cuyahoga County Support Enforcement Agency to demonstrate the amount due and defendant did not produce them to substantiate his claim of additional payments. We are therefore compelled to conclude that the amount of the child support arrearage was not sufficiently demonstrated. Cf. Wendling v. Wendling (February 8, 1996), Cuyahoga App. No. 68837, unreported at 11 (CSEA records coupled -11- with testimony concerning dates and amounts of required child support payments was sufficient to allow the trial court to ascertain the arrearage amount). Thus, the aspect of the court's order pertaining to defendant's current child support arrearage is reversed and remanded for further proceedings consistent with this opinion. This portion of the assigned error is well-taken. Defendant's fourth assignment of error states: THE TRIAL COURT ERRED IN INCLUDING IN ITS CALCULATION THE AMOUNTS OF PAST DUE SUPPORT WHICH HAD BEEN PREVIOUSLY REDUCED TO JUDGMENT, SINCE A FINDING OF CONTEMPT BASED ON SUCH AMOUNTS IS PRECLUDED BY THE OHIO CONSTITUTION. Within this assignment of error, defendant asserts that the trial court's use of contempt proceedings to collect upon the March 4, 1994 arrearage which had been reduced to judgment is prohibited by Article I, Section 15 of the Ohio Constitution. Article I, Section 15 of the Ohio Constitution prohibits imprisonment for debt in any civil action. In Cramer v. Petrie (1994), 70 Ohio St.3d. 131, syllabus, the Supreme Court held that an obligation to pay child support is not a debt within the meaning of that term in Section 15, Article I of the Ohio Constitution,and an order to pay child support may be enforced by means of imprisonment through contempt proceedings, even after the child who is the subject of the order is emancipated. The Court explained that support obligations arise by operation of law and moral duty. Id., at 136. In Young v. Young (April 20, 1994), Miami App. No. 93 CA 10, unreported, the court considered a husband's claim that he could -12- not be held in contempt of court in connection with a support arrearage which had been reduced to judgment. The trial court found the husband in contempt for failing to pay the lump sum judgment, following the emancipation of the children who were the subject of the support order. The appellate court reversed and held that contempt powers could not be used to coerce payment of a lump sum judgment because lump sum judgments are debts within the constitutional prohibition against imprisonment for debt. The court stated, the lump sum judgment, although originating from monies owed pursuant to a pursuant to a child support order, does not reflect a present obligation to pay child support or a duty owed to society for the support of one's children. The appellate court also held that civil contempt powers could not be used to coerce the payment of arrearage after the children had become emancipated. The Supreme Court reversed and reinstated the judgment of the trial court upon the authority of Cramer v. Petrie, supra. See Young v. Young (1994), 70 Ohio App.3d 679, 680. By application of the foregoing, we conclude that the trial court correctly used its contempt powers to enforce the amount due upon the arrearage which had been reduced to judgment. Accord Carter v. Carter (November 23, 1994), Montgomery App. Nos. 14409, 14530, 14574, unreported. This assignment of error is overruled. Defendant's eighth assignment of error states: -13- THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING [DEFENDANT] TO CONTINUE TO PAY CURRENT CHILD SUPPORT FOR KRISTEN, WHERE THE EVIDENCE AT THE HEARING CLEARLY INDICATED THAT KRISTEN HAD BEEN EMANCIPATED PRIOR TO THE HEARING. Within this assignment of error, defendant asserts that because Kirsten turned eighteen in March 1995 then graduated from high school in June 1995, the trial court erred in ordering that [defendant] shall continue to pay $979.28 per month as and for current support to the minor child Kristen. It is axiomatic that a court is without jurisdiction to order a parent to support a child who has reached the age of majority and has graduated from high school. See Rohrbacher v. Rohrbacher (1992), 83 Ohio App.3d 569, 575. Plaintiff, maintains, however, that the challenged language is proper pursuant to R.C. 3113.21(M)(1) which provides that the termination of a support obligation or a support order does not abate the power of any court to collect overdue and unpaid support or to punish any person for failure to comply with an order of the court or to pay any support as ordered in the terminated support order ***. This seems to be a plausible interpretation since the trial court noted, elsewhere in its entry that Kristen had graduated, was emancipated, and that defendant is no longer under any obligation to make child support payments on Kristen's behalf. Nonetheless, in a separate section the court specifically ordered defendant to pay $979.28 per month as and for current support to the minor child Kristen, and made a separate order of payment of $2,000.00 per month plus poundage toward the arrearage. Because the challenged language is not -14- directed to the collection of an arrearage and instead provides for current support, we find R.C. 3113.21(M)(1) inapplicable. Thus, we accept defendant's argument herein, and conclude that the trial court exceeded its jurisdiction in ordering the continuation of current support for Kristen and we therefore reverse this particular portion of the trial court's order. The eighth assignment of error is well-taken. Defendant's sixth assignment of error likewise challenges the trial court's denial of his motion to modify and states as follows: THE TRIAL COURT ERRED IN CALCULATING THE AMOUNT OF ARREARAGE, TO THE DATE OF HEARING BASED ON THE UNMODIFIED SPOUSAL AND CHILD SUPPORT PAYMENTS, WHERE, BUT FOR ITS ERRONEOUS DENIAL OF THE MOTION TO MODIFY, THE MODIFIED SUPPORT PAYMENTS WOULD HAVE BEEN PAYABLE FROM OCTOBER 1, 1994. Within this assignment of error, defendant reasserts his claim that the trial court erroneously denied his motion to modify his spousal and child support payments, and further contends that these obligations should have been reduced as of September 21, 1994, the date on which he filed these motions. In that we have determined, in our discussion of defendant's first assignment of error, that the trial court erred in denying defendant's motion to modify these obligations, we likewise find this assignment of error to be well-taken. The sixth assignment of error is overruled. Defendant's seventh assignment of error states: THE TRIAL COURT ERRED IN REQUIRING [DEFENDANT] TO PAY -15- $51,000 TO PURGE HIS CONTEMPT, WHERE THAT AMOUNT WAS BASED ON AN ERRONEOUS AND GROSSLY OVERSTATED AMOUNT OF ARREARAGE FOR WHICH A CONTEMPT FINDING WAS IMPERMISSIBLE. Herein, defendant reasserts his claims that although the trial court offered defendant the opportunity to purge the contempt finding upon payment of $51,000, toward the total accrued arrearage of $98,562.76, the arrearage was grossly inflated due to the combined effect of the court's erroneous rulings. Within this appeal, we have determined that the trial court erred in denying defendant's motion to modify his support payments, but acted properly in finding defendant in contempt of court for failure to pay current spousal support and the payment provisions of the March 4, 1994 judgment entry. We have further determined that the amount of the current child support arrearage was not sufficiently demonstrated. We therefore conclude that the trial court should exercise its discretion in fashioning a new purge amount which is appropriately derived in relation to the actual arrearage amounts. Cf. Loscko v. Loscko (September 28, 1995), Franklin App. No. 95APF02-55; Elam v. Elam (July 17, 1995), Butler App. No. CA 94-12-224, unreported. Defendant's fifth assignment of error states: THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO MRS. BACHAROWSKI FOR MR. BACHAROWSKI'S ALLEGED CONTEMPT IN FAILING TO EXECUTE A QUIT CLAIM DEED. Within this assignment of error, defendant asserts that the trial court's March 4, 1994, order required him to merely execute a quit claim deed to plaintiff and did not require him to prepare -16- such deed for execution. He further asserts that he did eventually execute a quitclaim deed after plaintiff's attorney prepared it for his signature. Defendant therefore maintains that the trial court erred in awarding plaintiff attorney fees in connection with the deed. As to defendant's first claim, we note that Black's law Dictionary (5th Edition 1979) 309, defines execute as: To complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfill the command or purpose of. To perform all necessary formalities, as to make and sign a contract, or sign and deliver a note. One court has held that the term execute can signify sign, or complete with regard to a commercial note or loan, see State v. O'Neill (March 24, 1992), Franklin App. No. 91AP-369, unreported. Applying the foregoing, we note that this was not a commercial matter. In addition, defendant construed similar language requiring plaintiff to execute a deed to their Port Clinton property to require her to both prepare and complete such deed, and he at no time asked for clarification from the court regarding his actual obligation as to this aspect of the court's March 4, 1994 order. We therefore are unable to find that the trial court erred in determining that defendant had manifested disobedience or resistence to its order and awarding plaintiff her attorney fees in connection with this resistence. See R.C. 3105.18(H). As to defendant's additional claim that he did ultimately comply with the court's order, we note that contempt may properly lie for evading one's obligations as set forth in a court order, -17- even though there is eventual compliance. See Sateren v. Sateren (April 20, 1995), Franklin App. No. 94APF10-1561, unreported, cf. R.C. 2705.02. Finally, as to defendant's claim that the trial court's March 4, 1994 judgment entry provided that the domestic relations court decree could be filed to effectuate the real estate transfer in the event of defendant's failure to execute a quit claim deed to plaintiff, we conclude that this alternative method is simply a safety net for plaintiff and does not obviate defendant's duty to execute the deed. The fifth assignment of error is overruled. This matter is reversed and remanded as to the trial court's denial of defendant's motions to modify, affirmed as to the trial court's determination that defendant was in contempt of court in connection with current spousal support obligations and defendant's obligations under the March 4, 1994 judgment entry, and reversed and remanded as the trial court's determination of the current child support arrearage and the provision ordering continued payment for current support [of $979.28 per month] to the minor child Kristen. -18- It is ordered that appellee and appellant split the 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. O'DONNELL, J., AND *HOLMES, J., CONCUR. ANN DYKE PRESIDING JUDGE *Sitting By Assignment: Justice Robert E. Holmes, Retired, of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .