[Cite as Slabe v. Slabe, 2026-Ohio-3295.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
KIMBERLY SLABE, CASE NO. 2025-L-147
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas,
Domestic Relations Division
BRENDAN SLABE, et al.,
Defendant-Appellant. Trial Court No. 2021 DR 000508
OPINION AND JUDGMENT ENTRY
Decided: August 24, 2026
Judgment: Affirmed
Joseph G. Stafford and Kelley R. Tauring, Stafford Cruz Law Co., L.P.A., North Point Tower, 1001 Lakeside Avenue, Suite 1300, Cleveland, OH 44114 (For PlaintiffAppellee).
Brian A. Murray, Larry W. Zukerman, and Morgan E. Helgreen, Zukerman, Lear, Murray & Brown, Co., L.P.A., 3912 Prospect Avenue East, Cleveland, OH 44115 (For Defendant-Appellant).
MATT LYNCH, P.J.
{¶1} Appellant, Brendan Slabe (“Husband”), appeals the decisions of the Lake
County Court of Common Pleas, Domestic Relations Division, finding him in contempt of
court for the third, fourth, and fifth times, imposing a fine for each offense, and ordering
him to pay attorney fees and litigation expenses to counsel for appellee, Kimberly Slabe
(“Wife”). Finding no reversible error, we affirm the trial court’s judgment.
{¶2} The underlying matter was initiated on September 9, 2021, when Wife filed
a complaint for divorce after 23 years of marriage; Husband filed a counterclaim for divorce on December 7, 2021. Husband’s family’s business, Slabe Machine Products,
LLC (“SMP”), and others were named as third-party defendants in the action.
{¶3} On March 11, 2022, the trial court’s magistrate issued an order granting
Wife’s motions for temporary spousal support, ordering Husband to pay Wife $3,500.00
per month plus other bills and expenses, effective January 1, 2022, until further order of
the court.
{¶4} On July 12, 2024, the day after a five-day divorce trial, the trial court
prospectively ordered Husband to pay an increased amount of temporary spousal
support, beginning August 1, 2024, in the amount of $7,000.00 per month through Lake
County Child Support Enforcement Agency (“CSEA”) via wage attachment or by direct
payments to the state agency “[a]t any time after this support order is in effect, if obligor’s
wages have not yet been attached.” The court also issued a contempt order, which
Husband later purged, for his failure to pay certain expenses as required by the court’s
temporary orders.
{¶5} On October 2, 2024, in the final divorce decree, the court ordered Husband
to pay spousal support in the amount of $7,500.00 per month to CSEA, effective October
1, 2024, and subject to the court’s continuing jurisdiction. The court also ordered
Husband to pay Wife an additional $4,000.00 per month, retroactively from April 22, 2022,
through September 24, 2024, in a lump-sum judgment of $116,000.00 plus interest at the
statutory rate.
{¶6} Husband and Wife each appealed the final divorce decree. On October 14,
2025, in Slabe v. Slabe, 2025-Ohio-4722 (11th Dist.), we issued an opinion affirming in
part, reversing in part, and remanding the trial court’s judgment. Relevant to the instant
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appeal, we remanded the trial court’s final spousal support order for further consideration
and findings of fact regarding Husband’s sources of income, id. at ¶ 91, and vacated the
trial court’s retroactive modification of the temporary spousal support order, id. at ¶ 100.
Prior to August 1, 2024, the enforceable amount of temporary spousal support was
$3,500.00 per month; thereafter, the enforceable amount was $7,500.00 per month. Id.
{¶7} While these direct appeals were pending in this court, Wife filed in the trial
court a Motion to Show Cause/Motion for Attorney Fees and Litigation Expenses on
October 28, 2024, December 18, 2024, and January 7, 2025. Each motion requested the
court to order Husband to appear and show cause why he should not be held in contempt
of court for his failure to pay spousal support and his arrearages in compliance with the
court’s July 12, 2024 judgment entry and the October 2, 2024 final divorce decree. Wife
also requested reimbursement of her attorney fees and expenses incurred in the matter.
{¶8} On January 14, 2025, Wife filed a Motion for Issuance of Orders to Appear
and Show Cause and a Motion for Attorney Fees and Litigation Expenses, accompanied
by her attorney’s affidavit and fee statement. On January 28, 2025, Husband filed a brief
in opposition to the Wife’s Motion for Attorney Fees and Litigation Expenses, arguing the
motion was inappropriate in light of the pending appeals. Husband claimed the trial court
did not have jurisdiction to address the motion for fees because the underlying divorce
decree, including issues of spousal support, was pending before this court on appeal.
{¶9} On February 10, 2025, the trial court held a trial on Wife’s Motions to Show
Cause. Before testimony commenced, the trial judge advised Husband of the possible
fines and jail terms for multiple contempt findings and of his rights to an attorney, to
question witnesses who appear against him, to compel witnesses to appear on his behalf,
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and to appeal any decision the court makes. The court asked if Husband wished to have
a trial on the motions or if he was prepared to extinguish his arrears; Husband chose to
proceed with the trial. The court indicated during trial that the burden of proof was “clear
and convincing evidence.”
{¶10} The parties stipulated to a certified copy of Husband’s spousal support
charges and payments administered through CSEA, which reflected that the last spousal
support payment Husband made to Wife was on October 17, 2024, and the past unpaid
spousal support balance as of the hearing date, including CSEA processing fees, was
$150,790.01.
{¶11} Husband was called to testify on direct examination and as on crossexamination. His relevant testimony is summarized as follows:
Husband has not paid any spousal support since October 17, 2024.
Husband was employed by SMP when the court issued its divorce
decree on October 2, 2024. He was terminated from SMP “without cause”
on either October 10 or 17, 2024. His employment agreement with SMP
included a noncompete clause that prevents him from working in “this exact
field” for a period of 24 months following termination. He is expecting a
severance package from SMP; he believes it will begin in March and will be
his half salary for two years. He hired an attorney to negotiate the
severance package for him.
Husband does not have the ability to pay the spousal support order
because he has no wage and no other sources of income. He has been
looking for a job and is seeking employment. Husband does not have any
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assets available to pay his spousal support arrears. Husband
acknowledged “Schwab accounts” that hold the sale proceeds of SMP of
around $40 million.
Husband is the trustee and beneficiary of the “Brendon Slabe 2012
Irrevocable Trust,” for which his mother was the grantor, and of the “EES
Irrevocable 2012 Trustee for Family of Brendon Slabe” Trust, for which his
father was the grantor. Husband’s understanding is that the trust assets
can be spent for the benefit of the beneficiaries, which are lineal
descendants of the grantors. The trusts’ assets are a certain percentage of
SMP stock, which is owned by Oppidum. The trusts include a spendthrift
provision, which Husband understands to mean forces the trust to operate
exactly to the language of the trust. The language of the trusts states that
no individual trustee has the power to distribute any of the assets for the
purpose of discharging any legal obligation of the trustee. Husband also
identified a declaration of trust agreement for the “Brendan P. Slabe
Revocable Children’s Trust” dated June 1, 2012, which includes a
spendthrift provision.
Wife had previously filed for divorce (and dismissed the complaint)
the year before these trusts were created. Husband has never accessed
the trusts. The trusts have never distributed any funds for anything other
than tax purposes. He does not know how much money is in the trusts.
Husband’s brother handles the trusts and receives the financial statements.
Husband has not reviewed any of the statements.
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Husband lives with and is the caregiver to his 83-year old father, who
uses a walker and a wheelchair. In turn, his father “pays for” him. He carries
his father’s credit card when they go to the grocery store. Husband drives
his father’s Tesla and Cybertruck; the Range Rover Husband drives is
owned by a trust.
Husband has a girlfriend. The weekend before the trial, the couple
flew commercial to France “with some business friends.” The couple also
recently travelled to Las Vegas, Galapagos, Florida, and Italy. Husband’s
trips were paid for by his father; he was not sure or did not recall who paid
for his girlfriend.
{¶12} Three days after the hearing, on February 13, 2025, Husband filed a Notice
Regarding Payment of Arrears, submitting that he had submitted a check directly to the
state agency in the amount of $150,790.01, reflecting payment of support arrears owed
to Wife pursuant to the court’s final divorce decree.
{¶13} The trial court did not rule on Wife’s Motions to Show Cause until December
10, 2025, which was two months after this court had issued our opinion in the underlying
divorce appeals. The trial court found each motion well taken by clear and convincing
evidence, as follows:
The evidence shows the Defendant was employed throughout the divorce
yet failed to timely pay monthly spousal support payments pursuant to the
temporary order. As a result, this Judge finds the Plaintiff’s October 28,
2024 Motion to Show Cause has been proven by clear and convincing
evidence. . . .
The Defendant is in contempt of the Court’s order filed March 11, 2022.
This is the Defendant’s third contempt finding in the instant case.
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The Defendant’s testimony was overwhelming that he relies on his Father
to pay the Defendant’s various expenses which includes significant
amounts of travel. The Defendant testified he has no income at this time.
The Defendant acknowledged he carries one of his Father’s credit cards.
Since the Defendant relies on his Father to pay the Defendant’s various
expenses, the Defendant can include his spousal support order as an
expense his Father can pay as well.
The evidence shows the Defendant is entitled to interest income from
various investments and the two trusts. This Judge finds said income is a
source other than employment income from which the Defendant can pay
his spousal support. Accordingly, this Judge finds the Plaintiff’s December
18, 2024 and January 7, 2025 Motions to Show Cause well taken by clear
and convincing evidence.
As a result, this Judge finds the Defendant is in contempt of this Court’s
Order filed October 2, 2024 as to the Plaintiff’s December 18, 2024 motion
to show cause and the January 7, 2025 motion to show cause. This is the
Defendant’s fourth and fifth findings of contempt herein.
{¶14} Citing R.C. 2705.05, the court noted that it could impose either a fine of not
more than $1,000.00 or a 90-day term of imprisonment for each of these contempt
findings. Taking into consideration that Husband paid his spousal support arrears
following the hearing, the court imposed a fine of $1,000.00 for each contempt finding to
be paid through the Lake County Clerk of Court no later than December 18, 2025.
{¶15} The trial court found that any future late spousal support payments may be
subject to a 90-day jail sentence contingent on the successful prosecution of any pending
motions to show cause. The court included the following admonishment:
Substantial docket time has been allocated to the five Motions to Show
Cause litigated through this date, along with attorney preparation time and
trial time. Equitable principles do not sanction the games the Defendant
has engaged in to deprive his former wife of timely paid spousal support.
The Defendant is a millionaire many times over. Nothing prevents him from
accessing one of the trusts for discretionary withdrawal of funds.
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{¶16} Finally, as to Wife’s request for attorney fees and litigation expenses, the
trial court found “not a shred of evidence was admitted during trial” and concluded that
such an award was “an impossibility herein.” However, in a nunc pro tunc entry issued
three hours later, the court said this paragraph was “null and void” and that it had
“inadvertently omitted consideration” of Wife’s January 14, 2025 Motion for Attorney Fees
and Litigation Expenses for the Motions to Show Cause. Said motion was accompanied
by an affidavit of Wife’s attorney, who averred that the attached itemized fees were
proper, reasonable, necessary, and commensurate with other attorneys who practice in
Ohio with similar experience and skill. The court stated that Husband did not file a
response in opposition to said motion and did not question Wife’s counsel as to his
statement of fees during the February 10, 2025 trial. The court added $1,000.00 for the
trial time on the motions and ordered Husband to pay the sum of $3,548.50 to Wife’s
attorney for the successful prosecution of the three contempt motions by December 31,
2025.
{¶17} On appeal from this order, Husband assigns six errors for our review. We
consider these assignments of error at times out of order and together for ease of
discussion.
{¶18} Initially, Husband maintains that we review contempt findings for an abuse
of discretion. While we generally review a trial court’s ultimate decision on contempt for
an abuse of discretion, purely legal questions are reviewed de novo. Thus, to the extent
Husband’s assignments of error raise distinct legal issues, we review that issue de novo,
i.e., independently and without deference to the trial court’s decision. To the extent he
challenges the discretionary or factual basis for finding him in contempt, we review for an
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abuse of discretion, i.e., an “unreasonable, arbitrary, or unconscionable” decision. See
Wagoner v. Wagoner, 2024-Ohio-1000, ¶ 27 (12th Dist.); see also Does v. Univ. Hospitals
Health Sys., Inc., 2023-Ohio-2120, fn. 1 (11th Dist.).
{¶19} In his first assignment of error, Husband contends the trial court erred when
it applied the wrong standard of proof in finding him in contempt of court; namely, that the
court applied the standard of proof for civil contempt yet imposed a criminal contempt
sanction. In his fourth assignment of error, Husband argues the trial court abused its
discretion in finding him guilty of indirect criminal contempt because Wife failed to prove
beyond a reasonable doubt that his failure to pay his spousal support obligations was
“willful” or “intentional.” Wife responds that the trial court applied the correct standard of
proof because the contempt proceedings were civil in nature. Alternatively, she argues
that any error in this regard was harmless.
{¶20} Contempt is classified as either direct or indirect. See Burt v. Dodge, 65
Ohio St.3d 34, 35-36 (1992). “Direct contempt occurs ‘in the presence of or so near the
court or judge as to obstruct the administration of justice.’ R.C. 2705.01. It may be
punished summarily. Id.” Burt at 35, fn. 1. “Indirect contempt occurs outside the court’s
presence, In re Gonzalez, 70 Ohio App.3d 752, 755 (8th Dist.1990), and the alleged
contemnor is entitled to a hearing before he may be convicted and punished, R.C.
2705.03.” Id.
{¶21} “In general, ‘[p]roceedings in contempt are sui generis in the law. They bear
some resemblance to suits in equity, to criminal proceedings and to ordinary civil actions;
but they are none of these.’” Liming v. Damos, 2012-Ohio-4783, ¶ 11, quoting Cincinnati
v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 201-202 (1973). “Because all contempt
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involves some type of sanction or punishment, the distinction between civil and criminal
contempt is usually based on the purpose to be served by the sanction.” Id. at ¶ 12, citing
State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554 (2001). “To determine the purpose
of the sentencing court, the entire record must be reviewed.” Id., citing State v. Kilbane,
61 Ohio St.2d 201, 206 (1980).
{¶22} “If the sanction is remedial or coercive and for the benefit of the complainant
rather than the court, the contempt proceeding is usually classified as civil. Often, civil
contempt is characterized by conditional sanctions, i.e., the contemnor is jailed until he or
she complies with the court order.” Id., citing Brown v. Executive 200, Inc., 64 Ohio St.2d
250, 253 (1980). A sanction imposed for civil contempt must afford the contemnor an
opportunity to purge the contempt. In re D.S.S., 2020-Ohio-5386, ¶ 14 (11th Dist.).
{¶23} “On the other hand, criminal contempt is usually characterized by
unconditional prison terms or fines. The purposes behind the sanction in criminal
contempt are primarily to punish the contemnor and to vindicate the authority of the court.”
Liming at ¶ 12, citing Brown at 254. A sanction imposed for criminal contempt usually
consists of an unconditional fine or period of incarceration as punishment for a past act
of disobedience. D.S.S. at ¶ 14.
{¶24} There is no dispute that Husband’s original contempt sanction, imposed in
the July 12, 2024 judgment entry, was civil in nature. Although Husband was sentenced
to 10 days in jail for failing to pay certain expenses as required by the court’s temporary
orders, the trial court suspended that sentence if he complied with several conditions of
payment. The sentence was not punitive: Husband was given the opportunity to purge
the contempt by making payments, and the payments benefited Wife.
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{¶25} Husband contends that the latest contempt sanction is criminal in nature,
and we agree. The trial court did not offer any means for Husband to purge the finding
of contempt, acknowledged that Husband paid his spousal support arrears three days
after the contempt trial, and stated that said payment would be taken into consideration
as to an appropriate sentence. The court ordered Husband to pay a fine of $1,000.00 for
each of the three contempt findings to the clerk of courts by a date certain. Thus, the
sanction imposed on Husband was an unconditional fine, punitive in nature, and designed
to vindicate the court’s authority; i.e., it was a criminal contempt sanction.
{¶26} “‘[T]he standard of proof required in criminal contempt proceedings is proof
of guilt beyond a reasonable doubt and a contemnor cannot be given a criminal contempt
sanction unless proven guilty beyond a reasonable doubt.’” D.S.S. at ¶ 19 (11th Dist.),
quoting Brown, 64 Ohio St.2d at 252. “Moreover, ‘in cases of criminal, indirect contempt,
it must be shown that the alleged contemnor intended to defy the court.’” Id., quoting
Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 127 (1991). “‘“In an
effort to ascertain an alleged contemnor’s intent, the court must consider the totality of
the circumstances.”’” Id., quoting Weisgarber v. Weisgarber, 2016-Ohio-676, ¶ 10 (5th
Dist.), quoting In re West, 2015-Ohio-1501, ¶ 19 (5th Dist.).
{¶27} Here, the trial court did not make a finding of guilt beyond a reasonable
doubt. The court did, however, address the element of intent. This is apparent from the
admonitions in the court’s entry; to wit: “Equitable principles do not sanction the games
the Defendant has engaged in to deprive his former wife of timely paid spousal support,”
and “The Defendant is a millionaire many times over. Nothing prevents him from
accessing one of the trusts for discretionary withdrawal of funds.” Accordingly, the court’s
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phrasing that it found Wife’s motions proven by “clear and convincing evidence” is
harmless error if we determine, upon an independent review of the record, that sufficient
evidence existed for the trial court to conclude beyond a reasonable doubt that Husband
intentionally defied the court’s spousal support order. See, e.g., Lillo v. Lillo, 2004-Ohio4848, ¶ 39 (6th Dist.), citing Crim.R. 52(A) (“Although the trial court phrased its finding in
terms of clear and convincing evidence, this court finds that there was sufficient evidence
to conclude beyond a reasonable doubt that appellant intended to defy the court in
refusing to sign the purchase agreement. Thus, the trial court’s phrasing of its finding of
clear and convincing evidence was harmless error.”); see also State v. Meredith, 1986
WL 4373, *2 (6th Dist. Apr. 11, 1986) (“[W]hen the voluntariness of a confession is in
issue, a reviewing court is not bound by the trial court’s determination of voluntariness[.]
. . . If upon an independent review of the record, this court finds that appellant’s
statements were voluntarily made, then the trial court’s incorrect statement of the
standard of proof will be considered harmless error.”).
{¶28} “‘“An appellate court, when reviewing a trial court’s finding of indirect
criminal contempt, must determine whether sufficient evidence existed for the trial court
to reasonably conclude beyond a reasonable doubt that the contemnor purposely,
willfully, or intentionally violated a prior court order.”’” D.S.S. at ¶ 19, quoting Weisgarber
at ¶ 10, quoting West at ¶ 19. The requisite intent may be proven by circumstantial
evidence. Swayngim v. Swayngim, 2013-Ohio-2481, ¶ 28 (6th Dist.), citing State v.
Huffman, 131 Ohio St. 27, 38-39 (1936). “This need not be malicious intent. A person is
presumed to intend the natural, reasonable and probable consequences of his or her
voluntary acts and intent can be determined from the surrounding facts and
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circumstances.” In re Sprankle v. Weyand, 1999 WL 783980, *2 (7th Dist. Sept. 29,
1999), citing State v. Carter, 72 Ohio St.3d 545, 554 (1995).
{¶29} Upon our independent review of the record, including the trial transcript, we
determine there was sufficient circumstantial evidence for the trial court to conclude
beyond a reasonable doubt that Husband’s failure to pay his spousal support obligations
was intentional. We find Husband’s contention to the contrary is disingenuous, given the
length of these divorce proceedings, the fact that he has previously been found in
contempt for failure to pay certain bills and expenses to Wife’s benefit, his complete failure
to pay Wife any amount of support for periods of time until threatened with contempt
sanctions, and the fact that he paid the delinquent amount in full three days after the trial
(and before the finding of contempt was issued) after representing to the court that he did
not intend to pay the arrearage.
{¶30} Husband’s first and fourth assignments of error are without merit.
{¶31} In his fifth assignment of error, Husband contends the trial court abused its
discretion by finding that he failed to prove the affirmative defense of inability to pay his
spousal support obligations as a result of the involuntary termination of his employment.
{¶32} “‘Once the movant has met his or her burden, the burden shifts to the other
party to either rebut the showing of contempt or demonstrate an affirmative defense by a
preponderance of the evidence.’” Slusser v. Supance, 2023-Ohio-3437, ¶ 17 (10th Dist.),
quoting Wehrle v. Wehrle, 2013-Ohio-81, ¶ 56 (10th Dist.), citing Pugh v. Pugh, 15 Ohio
St.3d 136, 140 (1984). “‘Impossibility of performance is a valid affirmative defense to a
contempt charge.’” Gauthier v. Gauthier, 2012-Ohio-3046, ¶ 33 (12th Dist.), quoting In re
Guardianship of Hards, 2009-Ohio-1002, ¶ 36 (11th Dist.). “Impossibility of performance
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occurs when an unforeseen event arises that renders a party’s performance of an
obligation impossible.” Id. “The performance of the obligation must have been rendered
impossible without any fault of the party asserting the defense.” Id. “‘A party must take
all reasonable steps within [his or] her power to comply with the court’s order and, when
raising the defense of impossibility, must show “categorically and in detail” why [he or]
she is unable to comply with the court’s order.’” Robinson v. Rummelhoff, 2014-Ohio1461, ¶ 35 (10th Dist.), quoting Briggs v. Moelich, 2012-Ohio-1049, ¶ 15 (8th Dist.).
{¶33} The trial court found that Husband is entitled to interest income from various
investments and trusts, which is a source of income other than employment from which
he can pay his spousal support. The record has long supported this finding, at least since
the five-day trial was held in the underlying divorce proceedings. It is difficult for this court
to believe, as it has been for the trial court, that Husband does not know how much money
is in these trusts, that he has never accessed these trusts, that he cannot access these
trusts, and that he has never reviewed any of the financial statements for these trusts.
{¶34} Regardless, the trial court discredited Husband’s claim that he is
involuntarily unemployed. The court noted that Husband was employed throughout the
divorce yet failed to timely make monthly spousal support payments pursuant to the
temporary order and found it “curious” that he was terminated from his employment eight
days after the divorce decree was filed. The court also found that Husband’s testimony
that he did not know how his girlfriend paid to travel with him was “ridiculous” and “has no
credibility whatsoever.” We conclude that the trial court’s decision regarding Husband’s
impossibility defense is supported by the record and we discern no abuse of discretion.
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Moreover, Husband’s argument is undermined by the fact that he paid the spousal
support arrearages in full a mere three days after the trial.
{¶35} The fifth assignment of error is without merit.
{¶36} In his second assignment of error, Husband contends the trial court violated
his due process rights by imposing criminal contempt sanctions after what appeared to
be a civil contempt proceeding. Specifically, Husband maintains that the trial court failed
to advise him of his right to have the contempt findings proven beyond a reasonable doubt
and failed to advise him of his right against self-incrimination.
{¶37} As explained by the First District Court of Appeals:
Where, as here, the acts or omissions occur outside the presence of the
court, and where confinement is a possible sanction, an accused contemnor
has “many of the significant constitutional safeguards required in criminal
trials.” Brown, 64 Ohio St.2d at 212 (1980), quoting State v. Kilbane, 61
Ohio St.2d 201, 205 (1980). These rights include reasonable notice before
the hearing, the right to reasonable time to prepare a defense, the right to
counsel, the right to subpoena and call witnesses, the right to invoke the
privilege against self-incrimination (although the contemnor may be called
as a witness), the right to an impartial judge, and proof of guilt beyond a
reasonable doubt. See Chinnock and Painter, The Law of Contempt in
Ohio, [34 Toledo L.Rev. 309, at 337-346 (2003)].
In re Estate of Carrier, 2003-Ohio-6919, ¶ 15 (1st Dist.).
{¶38} We have already determined that the court’s failure to advise of the “beyond
a reasonable doubt” burden of proof was harmless error because there was, in fact,
sufficient evidence for the trial court to conclude that Husband was guilty of criminal
contempt beyond a reasonable doubt. We decline to address this issue any further here.
{¶39} Alleged violations of the right against self-incrimination are also subject to
harmless error review. State v. Evans, 2018-Ohio-2534, ¶ 44 (1st Dist.), citing State v.
Harris, 2015-Ohio-166, ¶ 35-37, and State v. Arnold, 2016-Ohio-1595, ¶ 49-52. Crim.R.
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52(A) (“Harmless Error”) provides that “[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.” “First, it must be determined
whether the defendant was prejudiced by the error, i.e., whether the error had an impact
on the verdict. Second, it must be determined whether the error was not harmless beyond
a reasonable doubt. Lastly, once the prejudicial evidence is excised, the remaining
evidence is weighed to determine whether it establishes the defendant’s guilt beyond a
reasonable doubt.” (Internal citations omitted.) Harris at ¶ 37.
{¶40} Here, even if Husband’s testimony at the contempt trial was prejudicial,
meaning that it had an impact on the trial court’s contempt findings, the fact of his payment
in full three days after the trial and his history of contempt for failure to pay during these
proceedings was sufficient to establish his contumacious intent beyond a reasonable
doubt. Thus, we conclude that any alleged violation of Husband’s right against selfincrimination was also harmless error.
{¶41} The second assignment of error is without merit.
{¶42} In his third assignment of error, Husband argues that there was no valid
underlying order or judgment upon which the contempt action could be based because
this court had vacated the trial court’s retroactive modification of the temporary spousal
support order and remanded the trial court’s final spousal support order for further
consideration and findings of fact.
{¶43} In support of his argument, Husband relies on Foley v. Foley, 2006-Ohio946 (10th Dist.), where the Tenth Appellate District held, “In order for a contempt action
to exist, the contempt action must be based upon a valid underlying order or judgment of
a court.” Id. at ¶ 35, citing Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287, 295 (10th
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Dist.) (to show contempt, it is necessary to establish a valid court order). The Foley Court
also explained the fate of civil and criminal contempt sanctions when the underlying order
or judgment of a trial court is reversed:
In civil contempt cases where the underlying order or judgment is reversed,
the purpose of the punishment may be frustrated because the punishment
can no longer operate as to coerce or encourage the contemnor to obey the
prior order of the court. In contrast, the purpose of a punishment for criminal
contempt would not be frustrated if the underlying order of judgment of a
trial court were reversed because the punishment is intended to vindicate
the authority of the trial court and punish the contemnor.
Id. See also Slone v. Slone, 1998 WL 191840, *2, fn. 4 (4th Dist. Mar. 31, 1998) (“in
some contexts authorities hold that a civil contempt cannot survive reversal of the
underlying order”).
{¶44} In Foley, the trial court found the husband in contempt for failure to provide
spousal support pursuant to the court’s orders and sentenced him to 30 days in jail,
suspended on the condition that he liquidate the arrearage with monthly payments and
pay the wife’s attorney fees. Id. at ¶ 10. The Tenth District determined that the contempt
sanction was civil in nature. Id. at ¶ 34. The court ultimately reversed the divorce decree
in its entirety and remanded the case to the trial court for a new trial, thereby “putting the
case in a posture where no final judgment has been entered on the claim of either party.”
Id. at ¶ 36. Because the finding of civil contempt was based on the husband’s failure to
comply with the divorce decree, and the amount of spousal support in that decree was
based upon evidence introduced during the original trial, “the purpose of the punishment
for the civil contempt [could] no longer be satisfied because the determinations by the trial
court with respect to the amount of spousal support may change upon the further litigation
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of the case on remand.” Id. Therefore, under the circumstances of that case, the Tenth
District vacated the finding of contempt.
{¶45} The case sub judice is distinguishable from Foley. First, we did not reverse
the underlying divorce decree in its entirety or remand the matter for a new trial.
Moreover, we have determined the contempt sanction imposed against Husband was
criminal in nature. The purpose of the unconditional fine was to vindicate the trial court’s
authority for Husband’s complete failure to obey its spousal support orders. This purpose
is not frustrated even if the amount of spousal support Husband owes under the divorce
decree is modified on appeal or on remand. Accordingly, under the circumstances of this
case, it is not necessary or appropriate to vacate the findings of contempt.
{¶46} The third assignment of error is without merit.
{¶47} In his sixth and final assignment of error, Husband contends that the trial
court abused its discretion and erred as a matter of law when it ordered him to pay Wife’s
attorney fees incurred for the successful prosecution of her motions to show cause.
{¶48} “The resolution of a request for attorney fees is vested in the sound
discretion of the trial court and will not be overturned upon review absent a showing of an
abuse of discretion. Bagnola v. Bagnola, 2004-Ohio-7286, ¶ 36 (5th Dist.). While the
trial court has discretion in determining the amount of attorney fees, the court must base
its decision on evidence showing the reasonableness of the time spent on the matter and
the hourly rate. Id. Where the amount of an attorney’s time and work is evident to the
trier of fact, an award of attorney fees, even in the absence of specific evidence to support
the amount, is not an abuse of discretion. Hawk v. Hawk, 2002-Ohio-4384, ¶ 28 (5th
Dist.).” Dotts v. Schaefer, 2015-Ohio-782, ¶ 17 (5th Dist.).
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{¶49} Wife submitted a motion for attorney fees and litigation expenses prior to
trial. Attached to the motion was her attorney’s affidavit in which he averred that the fees
incurred were proper, reasonable, and necessary pursuant to R.C. 3105.73,
commensurate with other attorneys with similar experience and skill practicing in the state
of Ohio. Wife requested a total of $6,192.16. The court awarded $3,548.50 to be paid
by Husband directly to Wife’s attorney.
{¶50} Husband first argues that the trial court’s statement that he did not object to
Wife’s underlying motion for attorney fees is “wholly untrue,” as he filed a brief in
opposition on January 28, 2025. However, Husband’s brief in opposition solely argued
that the trial court did not have jurisdiction to issue the requested award of attorney fees
while the prior appeal was pending in this court. He does not raise this specific argument
on appeal, and we find no prejudice as a result of the trial court’s misstatement.
{¶51} Husband additionally argues that Wife failed to present any evidence
regarding the fees and expenses that she incurred in connection with her motions to show
cause, and the self-serving affidavit was not authenticated via her counsel’s testimony or
otherwise subject to cross-examination. However, the trial court was familiar with the
history of this case and the issues raised in the contempt proceedings. The court
reviewed the itemized fee statement and considered only those fees and litigation
expenses therein which related to the three show cause motions. The court determined
that $1,000.00 was a reasonable amount to add to that total for the trial time spent on the
matter. We discern no abuse of discretion in this finding.
{¶52} The sixth assignment of error is without merit.
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{¶53} The judgment of the Lake County Court of Common Pleas, Domestic
Relations Division, is affirmed.
JOHN J. EKLUND, J.,
SCOTT LYNCH, J.,
concur.
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Case No. 2025-L-147
JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s assignments of error
are without merit. It is the judgment and order of this court that the judgment of the Lake
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Costs to be taxed against appellant.
PRESIDING JUDGE MATT LYNCH
JUDGE JOHN J. EKLUND,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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