[Cite as Thiery v. Thiery,
2024-Ohio-2936.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
APRIL D. THIERY (SMILES) :
:
Appellee : C.A. No. 29936
:
v. : Trial Court Case No. 2018 DR 00958
:
WILLIAM F. THIERY : (Appeal from Common Pleas Court-
: Domestic Relations)
Appellant :
:
...........
OPINION
Rendered on August 2, 2024
...........
RICHARD L. KAPLAN, Attorney for Appellant
DALMA C. GRANDJEAN, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant William F. Thiery appeals from a judgment of the
Domestic Relations Division of the Montgomery County Court of Common Pleas, which
found him in contempt for failing to pay his temporary spousal support arrearage and his
monthly spousal support obligation to Plaintiff-Appellee April D. Thiery. For the reasons
-2-
that follow, we will affirm the judgment of the trial court.
I. Facts and Course of Proceedings
{¶ 2} April and William1 were married in Huber Heights, Ohio on December 19,
2009. No children were born as issue of the marriage. On October 16, 2018, April filed
a complaint for divorce. The trial court issued a temporary order requiring William to pay
to April “by way of temporary spousal support, the sum of $965.32 per month beginning
11/01/2018.” William filed an answer and counterclaim.
{¶ 3} On September 6, 2019, a final contested divorce hearing was held. William
subsequently filed a brief with the trial court arguing against an award of spousal support
or attorney fees because his federal disability income should not be considered income.
{¶ 4} On November 19, 2019, the trial court issued a decision resolving the issues
raised by the parties. The trial court noted that the parties had read into the record at
the final divorce hearing an agreement that would be incorporated into the final judgment
and decree of divorce. The court then resolved the remaining contested issues,
including spousal support. With regard to spousal support, the trial court found that
William had an annual income of $50,300 based on his $3,352 per month in VA Disability
and $840 per month in Social Security Disability. After considering the statutory factors
in R.C. 3105.18(C), the testimony of the parties, and the parties’ credibility and demeanor,
the court found that William should pay $600 per month in spousal support for 31 months
and that the spousal support obligation would be subject to the continuing jurisdiction of
1 For purposes of clarity and convenience, we will refer to the parties by their first names.
-3-
the court as to both amount and duration. The trial court directed April’s counsel to
prepare a final judgment and decree of divorce consistent with the court’s decision and
the agreement of the parties.
{¶ 5} On December 30, 2019, the trial court entered a final judgment and decree
of divorce. Relevant to this appeal, the trial court noted that William had a temporary
spousal support arrearage of $10,618.52 as of September 1, 2019. The trial court
ordered William to repay the total arrearage within 30 days of the judgment entry or, in
the alternative, and in addition to paying his $600 per month spousal support obligation,
he would be required to pay $200 per month until the arrearage was extinguished. The
court stated that the amount and duration of William’s spousal support obligation “shall
remain subject of the Court’s continuing jurisdiction.” William did not appeal from the
final judgment and decree of divorce.
{¶ 6} On June 26, 2020, April filed a motion requesting that the trial court order
William to appear before the court and show cause why he should not be held in contempt
for his failure to pay the temporary spousal support arrearage, April’s interim attorney
fees, his ongoing monthly spousal support obligation, and the sum incurred by April to
obtain discovery. April also asked the trial court to order William to pay her attorney fees
incurred in bringing the motion for contempt and to pay interest on his unpaid periodic
support.
{¶ 7} William opposed April’s motion to show cause and moved for relief from the
final judgment and decree of divorce pursuant to Civ.R. 60(B)(5) because “any term in
the divorce decree ordering spousal support was void ab initio for being violative of Ohio
-4-
and Federal Law.” William asked the trial court to vacate the divorce decree as it applied
to spousal support.
{¶ 8} April filed a motion for summary judgment requesting that the trial court
prohibit William “from reasserting the same defense previously claimed during the parties’
original divorce proceeding.” April argued that William’s contention that his disability
income should have been excluded from the spousal support calculation was barred by
res judicata because he did not appeal from the final judgment and decree of divorce.
Further, April contended that the trial court had correctly determined that disability
benefits could be included as a source of income in determining the appropriate amount
of spousal support.
{¶ 9} The magistrate issued a decision recommending that April’s contempt motion
and request for attorney fees be set for an evidentiary hearing. Further, the magistrate
recommended that the court overrule William’s Civ.R. 60 motion. William filed objections
and supplemental objections to the magistrate’s decision.
{¶ 10} On March 18, 2022, the trial court issued a decision ruling on the objections.
The trial court overruled William’s Civ.R. 60(B) motion, noting that Civ.R. 60 could not be
used as a substitute for an appeal. The trial court then set a hearing before the
magistrate regarding April’s motion for contempt. William filed a timely notice of appeal
from the trial court’s March 18, 2022 decision. However, on September 7, 2022, we
dismissed William’s appeal for lack of prosecution.
{¶ 11} On April 25, 2023, the magistrate held a hearing on April’s June 2020
motion to find William in contempt. The magistrate issued a decision on June 6, 2023,
-5-
finding that William was in contempt of court for failing to pay the temporary spousal
support arrearages and his monthly spousal support obligation. The magistrate
recommended a 7-day sentence in the Montgomery County Jail and set forth terms by
which William could purge the contempt.
{¶ 12} On June 20, 2023, William filed the following objections to the magistrate’s
decision:
Objection I: The Magistrate’s decision holding William Thiery in
contempt as referred to in the June 6, 2023, [sic] is not supported by law or
fact.
Objection II: The use of contempt procedure to force compliance with
an unlawful Court Order violates both State and Federal law.
Objection III: The Divorce Decree of December 30, 2019, and the
spousal support portion thereof, are in violation of the State and U.S. law
which determine the nature of income. Veteran’s Benefits, like Will’s are
not gross income for spousal support purposes. R.C. 3119.01(C)(5)
referring to R.C. 3105.18 and R.C. 3119.01(C)(12).
Objection IV: William’s claim regarding his Veteran’s Administration
Combat Disability Benefit and combat related SSDI are not barred by res
judicata or collateral estoppel.
Objection V: There are were [sic] no grounds for a hearing on the
motion for contempt as the underlying order(s) were void.
Objection VI-XX: Mr. Thiery reserves the right to amend, supplement,
-6-
add additional objections.
{¶ 13} On that same day, William also filed (1) a motion for an extension of time to
file additional amended objections after the transcript was filed, and (2) a praecipe to the
clerk of courts for the preparation and filing of a transcript of the April 25, 2023 hearing
before the magistrate. The trial court granted William’s motion for an extension of time.
Over the next 79 days, no transcript was filed, and no deposit was made with the court
reporter for the cost of the transcript.
{¶ 14} On September 8, 2023, the trial court overruled William’s objections to the
magistrate’s decision. The court noted that “[a] transcript of the proceedings was
ordered, however, was later declined, and was not available to the court, pursuant to
Mont. D.R. Rule 4.44 and Mont. D.R. Rule 4.45.” Decision (Sept. 8, 2023), p. 2. Due
to the lack of a transcript to review, the trial court stated that it was bound by law to accept
the magistrate’s findings of facts. After restating the magistrate’s findings of fact, the trial
court noted that William argued that the magistrate made her decision “based on void
underlying orders due to the unlawful application of state and Federal law.” Id. at 7. The
trial court explained that it had already decided that William’s VA benefits were income in
three previous decisions. The court concluded, “[d]espite Defendant’s persistent and
unrelenting argument that his income is not includable for purposes of spousal support,
the underlying orders and the applicable law used in those orders are res judicata. As
such, this Court will not address that argument, as it is settled.” Id. The court also
stated that William had failed to obtain the transcript and, as such, the court was required
to use the magistrate’s findings of fact in its review. Id. The court then overruled
-7-
William’s objections to the magistrate’s decision.
{¶ 15} The trial court found William in contempt and sentenced him to 7 days in
the Montgomery County Jail. The court suspended the jail sentence pending William’s
opportunity to purge the contempt, which required him to pay his spousal support
obligation, his spousal support arrearage, $500 of April’s attorney fees, and the clerk’s
administration fees. William filed a timely notice of appeal from the trial court’s judgment.
II. The Trial Court Did Not Abuse Its Discretion in Finding William in Contempt
{¶ 16} William’s first assignment of error states:
THE TRIAL COURT HAD NO CONTEMPT JURISDICTION OVER
THE ORDER, AS CONTEMPT JURISDICTION ONLY APPLIES TO
LAWFUL ORDERS OF THE COURT. THE ORDER ATTEMPTING TO BE
ENFORCED IS UNLAWFUL.
{¶ 17} This assignment of error involves whether the trial court could find William
in contempt for failing to pay the spousal support obligation set forth in the December
2019 final judgment and decree of divorce. We review a trial court's decision in a
contempt proceeding for an abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio
St.2d 10, 11 (1981), citing Cady v. Cleveland Worsted Mills Co.,
126 Ohio St. 171 (1933).
“ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp.,
50 Ohio St.3d 157, 161 (1990), citing Huffman v. Hair Surgeon, Inc.,
19 Ohio St.3d
83, 87 (1985).
-8-
{¶ 18} William contends that the final judgment and decree of divorce was unlawful
to the extent that the trial court used his federal disability income in its calculation of
spousal support. According to William, the trial court misapplied Ohio law and instead
should have found that federal disability income cannot be considered income for
purposes of calculating spousal support. William argues that, because the final
judgment and decree of divorce was unlawful, he could not be found in contempt of it.
{¶ 19} April responds that the issue of William’s federal disability income has been
litigated between the parties, and it was held to constitute income for purposes of spousal
support in the December 30, 2019 final judgment and decree of divorce and the March
18, 2022 decision. Because William failed to successfully prosecute an appeal from
either final order, April believes he is precluded by res judicata from raising the issue in
this appeal.
{¶ 20} “Principles of res judicata apply both to issues that were actually litigated
and adjudicated in a divorce action, as well as to matters that could have been litigated
and adjudicated.” (Emphasis in original.) Coleman v. Coleman, 2015-Ohio-2500, ¶ 10
(9th Dist.), citing Bean v. Bean,
14 Ohio App.3d 358, 361 (12th Dist. 1983). In short, the
doctrine of res judicata prevents us from considering arguments that could and should
have been raised during earlier appeals. Chepp v. Chepp,
2011-Ohio-4451, ¶ 15 (2d
Dist.). William did not file a direct appeal from the December 2019 final judgment and
decree of divorce. Rather, he subsequently filed a motion to obtain relief from that
judgment, which was denied in March 2022. He timely appealed from that March 2022
decision. However, we dismissed that appeal for lack of prosecution. Therefore, we
-9-
conclude that the arguments William raises in his first assignment of error are barred by
res judicata.
{¶ 21} William contends res judicata should not apply because the final judgment
and decree of divorce was void. We do not agree. “Once a tribunal has jurisdiction over
both the subject matter of an action and the parties to it, ‘ . . . the right to hear and
determine is perfect; and the decision of every question thereafter arising is but the
exercise of the jurisdiction thus conferred.’ ” State ex rel. Pizza v. Rayford, 62 Ohio St.3d
382, 384 (1992), quoting Sheldon's Lessee v. Newton,
3 Ohio St. 494, 499 (1854). “And
when a specific action is within a court's subject-matter jurisdiction, any error in the
exercise of that jurisdiction renders the court's judgment voidable, not void.” State v.
Harper,
2020-Ohio-2913, ¶ 26, citing Pratts v. Hurley,
2004-Ohio-1980, ¶ 12, 21. It is
undisputed that the trial court had subject-matter jurisdiction over April’s complaint for
divorce and the issue of spousal support. Therefore, William’s argument that the trial
court erred in its calculation of spousal support would, at most, render the trial court’s
judgment voidable, not void. “Generally, a voidable judgment may be set aside only if
successfully challenged on direct appeal.”
Id., citing State v. Payne,
2007-Ohio-4642.
Accord Miller v. Nelson-Miller,
2012-Ohio-2845, ¶ 19-20 (holding that the attempted
collateral attack on the domestic relations court’s voidable judgment entry was improper).
“As ‘a matter of common sense, common law, and common justice,’ one cannot attack a
final and valid judgment by raising, in a contempt proceeding, the question of the trial
court’s authority to make the original order.” Ahmad v. Ahmad,
2010-Ohio-5635, ¶ 23
(2d Dist.), quoting Thiessen v. Moore,
105 Ohio St. 401, 430 (1922).
-10-
{¶ 22} The arguments raised by William in his first assignment of error are barred
by the doctrine of res judicata. Therefore, the first assignment of error is overruled.
III. William Was Not Denied Due Process Because He Received a Full Hearing
Before the Magistrate and The Local Rules Provided Him With Notice that His
Objections Could Be Ruled On Before a Transcript Was Filed If No Deposit
Was Paid
{¶ 23} William’s second assignment of error states:
THE TRIAL COURT ERRED TO THE PREJUDICE OF WILLIAM
THIERY WHEN IT OVERRULED WILL’S OBJECTIONS TO THE
MAGISTRATE’S DECISION WHILE THE TRANSCRIPT WAS PENDING.
UNDER THE CIRCUMSTANCES THE TRIAL COURT RENDERING A
RULING VIOLATED WILL’S PROCEDURAL AND SUBSTANTIVE DUE
PROCESS RIGHTS.
{¶ 24} William’s second assignment of error concerns the trial court’s decision to
rule on William’s objections to the magistrate’s decision before a transcript was filed. It
is undisputed that no transcript of the magistrate’s decision was filed despite the trial
court’s extension of time in which to do so. William contends, however, that the trial court
erred by ruling on his objections to the magistrate’s decision instead of waiting for the
transcript to be filed. According to William, “[t]he trial court ignored its own entry granting
an open extension of time for filing a transcript and supplemental objections. That Entry
had no definite due date nor did it place a limitation on the time of the extension.”
-11-
Appellant’s Brief, p. 5. William states that “[d]uring the time of the filing of the order
granting the extension of time Will was obtaining the funds for the deposit which is
required for the preparation of the transcript.” Id. at 5-6. William believes the trial court
could not rule on his objections unless it issued an additional, separate order giving him
advance notice that the court was going to consider his objections without waiting any
longer for the transcript.
{¶ 25} April responds that it was William’s burden to file the transcript and he failed
to meet his burden. Appellee’s Brief, p. 5. She notes that William had approximately
two and a half months to file the transcript. Further, April contends that the only issue
raised in William’s objections was an issue of law, and the parties agreed on the facts at
issue in this appeal. Id. Therefore, the trial court properly considered the objections
without a transcript.
{¶ 26} An objection to a factual finding of a magistrate must be supported by a
transcript of all the evidence submitted to the magistrate relevant to that finding. Civ.R.
53(D)(3)(b)(iii). The objecting party must file the transcript with the court within 30 days
after filing objections unless the court extends the time in writing for preparation of the
transcript. Id. Further, if a party files timely objections prior to the preparation of a
transcript, the party may seek leave of court to supplement the objections. Id.
{¶ 27} “The duty to provide a transcript or affidavit to the trial court rests with the
person objecting to the magistrate’s decision.” Swartz v. Swartz, 2011-Ohio-6685, ¶ 8
(9th Dist.), citing Weitzel v. Way,
2003-Ohio-6822, ¶ 17 (9th Dist.). William filed a
praecipe with the clerk of courts asking it to prepare and file a transcript of the April 25,
-12-
2023 hearing before the magistrate. But his duty relating to the transcript did not end
there. Mont. D.R. Rule 4.44(D) provides, in part: “Failure to file praecipe for a transcript
with appropriate deposit may cause the court to rule on the objections as if no transcript
had been ordered.” (Emphasis in original.) Under Rule 4.44(D), William was required
to (1) alert the trial court that a transcript had been ordered, (2) file a praecipe for a
transcript, and (3) provide the appropriate deposit for the transcript.
{¶ 28} Similarly, Mont. D.R. Rule 4.45(C) provides, in part: “Upon failure of a party
to timely order, deposit payment for, cause to be filed an available transcript, or to timely
file a statement of the evidence when appropriate, the court may: (1) As to objections,
adopt any finding of fact in a Magistrate Decision without further consideration and rule
upon those objections accordingly.” Further, Mont. D.R. Rule 4.45(A) provides, in part:
If a party intends to object or appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, that party shall
provide a transcript of all evidence relevant to such findings or conclusions.
The party shall file a praecipe with the Clerk of Courts for the transcript on
the same date as the filing of an objection or a notice of appeal. Within 14
days of the filing of praecipe, the party shall deposit with the court reporter
the cost of the transcript. . . . In proceedings where objections have been
filed, if no deposit is received within 14 days, the court reporter shall notify
the assigned Judge who may proceed to rule upon the objections.
{¶ 29} William received a full hearing before the magistrate. After filing his initial
objections, William asked for and received an extension of time in which to file the
-13-
transcript. But he never paid for the preparation of the transcript from the magistrate’s
hearing. Simply filing a praecipe to the clerk to prepare the transcript is insufficient to
comply with Mont. D.R. Rules 4.44 and 4.45. Rather, an objecting party must also pay
a deposit for the preparation of the transcript. Holbrook v. Holbrook, 2008-Ohio-2079,
¶ 5, 20 (2d Dist.) (holding that appellants could not seek review of the factual conclusions
underlying the magistrate’s decision where they ordered a transcript of the hearing but
did not pay the deposit for the transcript).
{¶ 30} William states in his appellate brief that he was trying to obtain the funds to
pay for the transcript during the 79-day period between his motion for an extension of
time and when the trial court ruled on his objections. But there is nothing in the record
to demonstrate that he requested the deposit be waived or that he alerted the trial court
that he was having difficulty obtaining the funds to pay for the transcript. In spite of this,
William argues the trial court was required to wait an indefinite period of time in
anticipation of William filing the transcript at some point in the future. William has cited
no case law, statutes, or rules that support his argument that the trial court was required
to wait indefinitely for an objecting party to pay for the transcript. Further, Mont. D.R.
Rules 4.44 and 4.45 clearly put William on notice that the failure to pay for the transcript
may result in the trial court ruling on the objections as if no transcript had been ordered.
{¶ 31} Based on our review of the record, we cannot conclude that William was
denied due process or that the trial court erred by ruling on his objections before a
transcript was filed. Therefore, the second assignment of error is overruled.
-14-
IV. Conclusion
{¶ 32} Having overruled both of William’s assignments of error, the judgment of
the trial court will be affirmed.
.............
EPLEY, P.J. and WELBAUM, J., concur.
