Bass v. Bass

2019 Ohio 2746

RHONDA SMITH BASS Plaintiff-Appellee v. MICHAEL C. BASS Defendant-Appellant

Appellate Case No. 28217

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

July 5, 2019

Trial Court Case No. 2010-DR-793

(Domestic Relations Appeal)

OPINION

DAVID M. MCNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A, Beavercreek, Ohio 45431 Attorney for Plaintiff-Appellee

JAY B. CARTER, Atty. Reg. No. 0041295, 111 West First Street, Suite 519, Dayton, Ohio 45402 Attorney for Defendant-Appellant

WELBAUM, P.J.

{¶ 1} This case is the fourth appeal concerning the divorce of Appellant, Michael Bass, and Appellee, Rhonda Smith (also known as Rhonda Smith Bass).¹ According to Michael, the trial court erred in failing to enforce a May 2017 contempt order and a September 2018 agreed order. After reviewing the record, we find no error on the trial court's part. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 2} The parties in this case were married in 1998, and no children were born as a result of the marriage. In July 2010, Rhonda filed a complaint for divorce, and Michael filed an answer and counterclaim for divorce in September 2010.

{¶ 3} After an evidentiary hearing, the trial court issued an order in August 2013 granting a divorce and dividing the parties' assets. In the order, the court noted the parties' disagreement about personal property and ordered that an inventory be conducted by both parties with a third person present. After the inventory was completed, the parties were to divide the personal property items within 30 days pursuant to Mont. D.R. Rule 4.40(C). The final decree, which was entered on September 13, 2013, ordered the inventory and division as noted in the court's earlier order.

{¶ 4} Michael appealed from the final judgment and decree of divorce, challenging the trial court's division and distribution of marital assets. See Bass v. Bass, 2d Dist. Montgomery No. 25922, 2014-Ohio-2667, ¶ 4 (Bass I). He did not challenge the personal property division. Instead, "[t]he disputed issues were the value of [Rhonda's] retirement account, the disposition of a condo owned by the parties, on which there wasno mortgage and in which [Rhonda's] mother lived, and the disposition of the marital home, on which there were two mortgages. Improvements had been made to the marital home; the parties also disputed whether these improvements had been made using funds loaned to [Michael] by his son, which the parties were obligated to repay." Id. at ¶ 5. We found no error and affirmed the trial court's judgment in June 2014.

{¶ 5} Thereafter, many post-decree motions and appeals were filed (mostly by Michael), resulting in the fact that litigation still continues in this minimal asset case, nearly nine years after the parties separated and the divorce complaint was filed.

{¶ 6} The second appeal, in 2015, concerned Michael's disagreement with two post-decree judgments. See Bass v. Bass, 2016-Ohio-596, 47 N.E.3d 224, ¶ 1 (2d Dist.) (Bass II). As pertinent here, Michael challenged a July 2015 trial court judgment, which had "ordered the return of Michael's unspecified jewelry and ordered the sale of the time share. As to the personal property, the court added some items to the inventory list for the parties to divide under Mont. D.R. Rule 4.40(C) and found that the rest of the items were not 'missing.' " Id. at ¶ 18. According to Michael, the court's judgment was against the manifest weight of the evidence. Id. at ¶ 20. After reviewing the evidence, we disagreed, stating that:

It seems that the parties have been squabbling over substantially the same set of items for years. Regardless, Michael's testimony - that Exhibit M represents all the missing items as of the inventory - is the limiting aspect of our review. Each of those items either has been accounted for or, as the trial court found, went missing during Michael's occupation of the home. It is apparent that the trial court believed Rhonda's testimony that the appliances had to be replaced, that she gave [Michael] the four chairs, that her bar stools were not their bar stools, that the red couch was the "rust" couch, and that the one or two remaining items went missing during Michael's occupancy. The court also believed Rhonda that she did not take the one or two remaining items. On this issue there is evidence to support the trial court's decision.

(Footnote omitted.) Id. at ¶ 27. We, therefore, affirmed the judgment.

{¶ 7} Bass II was issued in February 2016. In May 2016, Michael filed a motion addressing several matters, including sale of the time-share, return of personal property, division of marital property, and payment of equity in real estate. He then filed a motion to show cause in August 2016, concerning Rhonda's alleged failure to pay him for his equity in the real estate and marital vehicles. A hearing was held concerning these matters in September 2016.

{¶ 8} In December 2016, the parties' counsel agreed that Rhonda and Michael would meet at Rhonda's residence, and a third party would divide the property pursuant to local rules. However, in January 2017, Michael filed another motion to show cause because Rhonda failed to be present on the agreed-upon date. Subsequently, in February 2017, the magistrate found Rhonda in contempt, stating that Rhonda had "repeatedly and persistently failed to cooperate with the procedure for a division of property which has contributed to this 'squabbling' persisting for yet another year." Docket for Third Appeal ("Third Appeal"), Doc. #57, p. 5.² The magistrate, therefore,found Rhonda in contempt and imposed a 30-day sentence and a $1,000 fine, which were suspended pending Rhonda's cooperation with a property division procedure. On May 22, 2017, the trial court overruled Rhonda's objections to the magistrate's decision. Rhonda did not appeal from that judgment. Michael then filed a motion on June 28, 2017, asking the court to impose sentence because Rhonda had failed to pay fees that were imposed. He did not mention the property division. Id. at Doc. #81. A hearing on that motion was set for September 7, 2017.

{¶ 9} In the meantime, in July 2017, a magistrate filed a decision on the motion that Michael had filed in May 2016, and the motion to show cause that he filed in August 2016. As noted, these motions involved Rhonda's alleged failure to pay the money the divorce decree ordered for the division of marital property, her alleged failure to list the time-share for sale, and her alleged failure to return a set of diamond cuff links to Michael.

{¶ 10} The magistrate found Rhonda in contempt because she made partial payment of around $51,000, but failed to pay Michael for his share of the value of the motor vehicles ($7,805.66). See Third Appeal, Doc. #84. However, the magistrate found insufficient evidence to establish that Rhonda failed to comply with the order to list the time-share for sale, or that Rhonda possessed diamond cuff links that Michael claimed to be entitled to possess. Id. at p. 3. Both parties filed objections to the magistrate's decision.

{¶ 11} As noted, the trial court had previously filed a judgment on May 22, 2017, agreeing with the magistrate that Rhonda was in contempt for failing to cooperate with the division of the parties' personal property. On September 7, 2018, the magistrate held a hearing on Michael's July 28, 2017 motion to impose sentence. An agreed order was then filed on September 8, 2017, acknowledging that Rhonda had paid the amounts imposed for contempt. The order further stated that Rhonda "acknowledges that the full purge conditions as set forth in paragraph 4 of the May 22, 2017 decision and judgment have not been met." Third Appeal, Doc. #103, p. 1. The order also stated that the matter would be heard before the trial judge (not the magistrate) on December 11, 2017, for consideration of imposition of sentence.

{¶ 12} As pertinent here, the part of the contempt order that was not fully purged was that "Rhonda may purge her contempt by cooperating with a property division procedure as previously ordered by this court to be scheduled through both counsel on a date within 14 days of this Decision and Judgment." Third Appeal, Doc. #77, p. 7 (paragraph 4).

{¶ 13} On November 16, 2017, the trial court issued a judgment finding that Rhonda's objections to the July 2017 magistrate's decision were well-taken. The court found Rhonda credible concerning the fact that she had paid the full amount of the property division award (around $59,000, plus more), to the bankruptcy trustee for Michael's bankruptcy. The court, therefore, concluded that Rhonda was not in contempt for failing to pay the total amount of the property division to Michael.³ In addition, thecourt overruled Michael's objections. The comments the court made about the testimony indicate that that it found Rhonda more credible about the time-share and cuff links. Third Appeal, Doc. #110, pp. 5-6.

{¶ 14} The record does not indicate that anything occurred on December 11, 2017, i.e., either a hearing on imposition of sentence or an entry resulting from such a hearing. This may have been because Michael filed a notice of appeal challenging the November 16, 2017 judgment, which failed to find Rhonda in contempt in connection with her payment of the marital property division, the time share, and the diamond cuff links. See Bass v. Bass, 2d Dist. Montgomery No. 27832, 2018-Ohio-2043 (Bass III), ¶ 1-2.

{¶ 15} The trial court did file an entry on December 19, 2017, setting the sentence imposition matter for an in-chambers pre-trial on December 26, 2017. After that pretrial hearing, the court filed another order on December 26, 2017, stating that the property to be returned to Michael should be appraised and the value should be determined before a pretrial set for February 7, 2018. On February 13, 2018, the court then filed an entry setting a third pre-trial for ...