[Cite as Guy v. Shorey, 2019-Ohio-977.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106923 

AMY GUY, F.K.A. SHOREY

PLAINTIFF-APPELLEE 

vs. 

JAMES D. SHOREY

DEFENDANT-APPELLANT 

 

 

JUDGMENT: 

AFFIRMED

 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Domestic Relations Division 

Case No. DR-15-359099 

BEFORE: Handwork, J.,* S. Gallagher, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: March 21, 2019 
ATTORNEY FOR APPELLANT

Brent L. English 

Law Offices of Brent L. English 

The 820 Building, 9th Floor 

820 Superior Avenue, West 

Cleveland, OH 44113 

 

ATTORNEY FOR APPELLEE

Manav H. Raj 

Rieth & Antonelli & Raj 

1406 West 6th Street, Second Floor 

Cleveland, OH 44114 

PETER M. HANDWORK, J.:* 

{¶1} Amy Guy, f.k.a. Shorey, and James Shorey were divorced according to the terms of 

a separation agreement that the court incorporated into the divorce decree. As relevant to this 

appeal, the parties agreed that James would retain the house free and clear of any claim by Amy, 

provided he obtained refinancing within 120 days and removed her name from mortgage liability. 

 The parties also agreed that if James failed to obtain refinancing within that time frame, the 

property would be immediately listed for sale by a realtor of Amy’s choosing and “sold 

post-haste at a mutually agreeable price as recommended by the realtor.” James not only failed 

to obtain financing, he admitted that he did not actually file an application for refinancing 

because he claimed that prospective lenders told him that he had to have full-time employment 

(at the time, he was starting a company) as a condition of acceptance. Amy filed a motion for 

specific performance and asked that James be held in contempt. 
{¶2} A magistrate conducted a hearing on the motion and found that although James had 

actually listed the house for sale after failing to obtain refinancing, he did so on his own, and not 

within 120 days after the separation agreement was reduced to judgment. The magistrate also 

found that James listed the house without consulting Amy as required by the divorce decree. 

The magistrate concluded that James be held in contempt and allowed to purge the contempt by 

listing the house for sale with a realtor of Amy’s choosing, at a price recommended by the 

realtor. The magistrate granted Amy’s realtor permission to speak with Amy about all aspects of 

the sale, including the listing price. Finally, the magistrate ordered James to pay $5,500 towards 

Amy’s attorney fees. The court approved and adopted the magistrate’s decision over James’s 

objections. 

 I. Evidence of Contempt 

{¶3} A contempt finding will not be disturbed on appeal unless the court abused its 

discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). 

“When appellate review of a contempt adjudication entails an inquiry into the weight of the 

evidence to sustain the judgment, the applicable standard of review turns upon the nature of the 

contempt decree.” ConTex, Inc. v. Consol. Technologies, Inc., 40 Ohio App.3d 94, 95, 531 

N.E.2d 1353 (1st Dist.1988). Alleged contempt of a divorce decree is a civil contempt, Ganelli 

v. Ganelli, 8th Dist. Cuyahoga No. 72757, 1998 Ohio App. LEXIS 2596, 9 (June 11, 1998), and 

we apply the usual rules regarding the weight of the evidence: we consider whether “the finder of 

fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must 

be reversed and a new trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 

972 N.E.2d 517, ¶ 20. In doing so, we “make every presumption in favor of the finder of fact, 

and construe the evidence, if possible, to sustain the judgment of the trial court.” Id. at ¶ 21. 
{¶4} In Article 3.01 of the settlement agreement, the parties agreed that James would 

keep the marital residence free and clear of any claim by Amy, and: 

As such, Husband shall refinance said obligation within one hundred twenty (120) 

days of the execution of this Agreement thereby releasing Wife from any and all 

financial liability thereon. Concurrent with the execution of this Agreement, 

Husband shall remit to Wife the sum of Ten Thousand Dollars ($10,000.00) to 

Wife as and for Division of Property herein. 

Concurrent with the execution of this Agreement, Wife shall execute a quit claim 

deed transferring all her right[,] title[,] and interest in said property to Husband, 

and Husband shall pay the mortgage, line of credit, real estate taxes, utilities and 

all other expenses relative to said parcel of real estate, and he shall indemnify and 

save the Wife absolutely harmless thereon. 

In the event that Husband fails to refinance said property within the prescribed 

time period or is more than thirty (30) days late on his financial obligation 

hereinabove, the residence shall be immediately listed for sale on the market with 

an agent of Wife’s selection from Howard Hanna and sold post-haste at a 

mutually agreeable price as recommended by the realtor. 

{¶5} The court reduced the separation agreement to judgment in a divorce decree filed 

on May 26, 2016. As required by the terms of the separation agreement, Amy filed a quitclaim 

deed and renounced her interest in the property. James, who desired to retain the house, 

initiated discussions with a bank and two savings and loan associations about refinancing the 

house. James acknowledged, at the time, that his consulting business did not provide him with 

the income necessary to qualify for refinancing. He said that all three financial institutions told 

him that he would not be approved for refinancing, so he did not formally file an application for 

refinancing and risk damaging his credit rating. Nevertheless, James testified that he was in the 

process of expanding his consulting business and anticipated that income resulting from that 

expansion would qualify him for refinancing. 
{¶6} When James did not obtain financing within 120 days from entry of the divorce 

decree, Amy filed a motion to have James show cause why he should not be held in contempt for 

failing to list the house for sale consistent with the terms of the separation agreement. James 

then listed the house for sale within the month, albeit not with a realtor of Amy’s choosing as 

required by the separation agreement. After the house had been on the market for six months 

without any offers, the realtor recommended that James lower the price. James refused to lower 

the price. 

{¶7} From this evidence, the magistrate could rationally conclude that James violated the 

separation agreement. James admittedly failed to obtain refinancing within 120 days after entry 

of the divorce decree. This failure, whether or not intentional on his part, meant that the house 

had to be immediately listed for sale by a realtor of Amy’s choosing and sold at a mutually 

agreeable price as recommended by the realtor. James did list the house for sale, but did not use 

a realtor of Amy’s choosing. His violation of the separation agreement was manifest. 

{¶8} It is true that Amy did not subsequently object to James’s choice of realtor, but 

James’s decision to hire a realtor of his own choosing — an act that occurred after Amy filed her 

show cause motion — was a breach of the separation agreement and thus constituted a basis for 

finding James in contempt. But even if we assume without deciding that Amy’s failure to object 

to James’s choice of realtor constituted a waiver, the fact remains that competent, credible 

evidence supported the court’s conclusion that James did not abide by the “post-haste” timeline 

for selling the house. 

{¶9} At the time of the contempt hearing, the house had been on the market for 11 

months and remained unsold. In fact, we were informed at oral argument in this appeal — a 

date over two years from when the house had been listed for sale — that the house has yet to be 
sold. James’s realtor testified that the sale price of the house should be lowered, but James 

refused to lower the price. Notably, James testified and candidly acknowledged his desire to 

keep the house. The magistrate could reasonably conclude that James’s desire to keep the house 

suggested a motivation for his rejection of a lowered listing price that would spur the sale. 

Eleven months on the market fails to meet the “post-haste” timeline for selling the house, even 

acknowledging that term is inherently imprecise. 

{¶10} James argues that he lacked any intent to violate the divorce decree, particularly 

with respect to Amy. He maintains that Amy was fully aware that he had listed the house but 

never objected that he had done so without first letting her choose the realtor or agree to the 

listing price used by his realtor. 

{¶11} James’s arguments are irrelevant. “Contempt of court is defined as disobedience 

of an order of a court.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 56, 271 N.E.2d 815 

(1971), paragraph one of the syllabus. Whether “the contemnor acted innocently and not in 

intentional disregard of a court order is not a defense to a charge of civil contempt.” Id. at 

paragraph three of the syllabus. See also Pugh v. Pugh, 15 Ohio St.3d 136, 136, 472 N.E.2d 

1085 (1984), paragraph one of the syllabus (“Proof of purposeful, willing or intentional violation 

of a court order is not a prerequisite to a finding of contempt.”). The court did not err by finding 

James in contempt of the divorce decree. 

 II. Purge Conditions 

{¶12} As a condition for purging James’s contempt, the court ordered that he list the 

house with a realtor chosen by Amy and “at the price recommended by” the realtor. James 

argues that allowing the listing to be at a price recommended by the realtor is an impermissible 
purge condition because it alters the divorce decree term that the house be listed at “a mutually 

agreeable price as recommended by the realtor.” 

{¶13} “A property settlement provision contained in a separation agreement, which is 

subsequently incorporated into a divorce decree * * * is enforceable by contempt proceedings.” 

Harris v. Harris, 58 Ohio St.2d 303, 304, 390 N.E.2d 789 (1979), paragraph one of the syllabus. 

When a party is in contempt or disobedience of a court order, the contemnor must be given a 

chance to purge the contempt. Cleveland v. Paramount Land Holdings, L.L.C., 8th Dist. 

Cuyahoga Nos. 96180, 96181, 96182, and 96183, 2011-Ohio-5382, ¶ 12. 

{¶14} A court may employ judicial sanctions for civil contempt to coerce a party to 

comply with lawful orders. C.G. v. C.L., 8th Dist. Cuyahoga No. 90341, 2008-Ohio-3135, ¶ 24. 

 This court reviews such sanctions for an abuse of discretion. Id. 

A sanction for civil contempt must allow the contemnor the opportunity to purge 

himself or herself of contempt. In re Purola (1991), 73 Ohio App.3d 306, 312, 

596 N.E.2d 1140. The trial court abuses its discretion in ordering purge 

conditions which are unreasonable or where compliance is impossible. Id. at 

313. The party who is in contempt bears the burden of presenting sufficient 

evidence at the contempt hearing to establish that the trial court’s purge conditions 

are unreasonable or impossible for him to satisfy. Marx v. Marx, 8th Dist. 

Cuyahoga No. 82021, 2003-Ohio-3536. 

Id. at ¶ 25. 

{¶15} The goal of Amy’s motion to show cause as to why James should not be held in 

contempt of court was to compel his obedience to the terms of the separation agreement 

regarding his obligation to refinance the house. The court granted the motion to show cause 

under terms meant to coerce James’s obedience to the separation agreement. State ex rel. Corn 

v. Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d 265 (2001). James argues that the purge 

condition was impermissible because it deviates from the separation agreement. However, he 
has not demonstrated that the purge condition was unreasonable or impossible for him to satisfy. 

Accordingly, we overrule this assignment of error. III. Attorney Fees 

{¶16} The court ordered James to pay $5,500 for Amy’s attorney fees in prosecuting the 

contempt proceeding. James concedes that the court had the discretion to include reasonable 

attorney fees as part of the costs taxed to a defendant found in contempt, but maintains that he 

was not in contempt, so no fees should have awarded. As discussed in part I of this opinion, the 

court validly found James was in contempt of the separation agreement. Because James’s 

argument relating to attorney fees is wholly based on the refuted assertion that he was not in 

contempt, we summarily overrule this assignment of error. 

{¶17} Judgment affirmed. 

It is ordered that appellee recover of appellant 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 domestic relations 

court 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. 

______________________________________________ 

*PETER M. HANDWORK, JUDGE 

KATHLEEN ANN KEOUGH, J., CONCURS; 

SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION 

*(Sitting by Assignment: Judge Peter M. Handwork, retired, of the Sixth District Court of 

Appeals). 
SEAN C. GALLAGHER, P.J., CONCURRING: 

{¶18} I concur with the majority decision. I write to further address James’s challenge 

to the purge conditions. 

{¶19} James argues that the trial court abused its discretion by imposing purge 

conditions that altered the terms of the divorce decree. Not only does he challenge the 

requirement that the listing price be established based upon the realtor’s recommendation, but 

also, he challenges other requirements that were imposed. 

{¶20} A trial court is permitted to order purge conditions to effectuate compliance with 

the property division in a divorce decree. Chasko v. Chasko, 8th Dist. Cuyahoga No. 93314, 

2010-Ohio-3599, ¶ 24-25. James’s contempt was subject to the following purge conditions: 

1. Maintaining a listing of the property with a licensed real estate agent, 

chosen by Amy Guy; 

2. Listing the property at the price recommended by the listing real estate 

agent; 

3. Granting permission to the listing real estate agent to speak to Amy Guy 

with regard to all aspects of the sale of the property including but not 

limited to the listing price of the home; 

4. Maintaining the property in saleable condition both as to the exterior and 

the interior of the residence; 

5. Reimbursing Amy Guy for her attorney fees in the amount of $5,500.00; 

The trial court’s order also imposed certain additional requirements aimed at relieving Amy from 

the mortgage liability, and awarded Amy $5,500 for her attorney fees, which were subject to 

reimbursement by James. 

{¶21} Contrary to James’s argument, the purge conditions imposed by the trial court were 

not an impermissible modification of the divorce decree. James was found to be in contempt for 

failing to comply with the court’s prior orders pertaining to the marital residence. As stated by 
the trial court, “Mr. Shorey has a Court ordered obligation to either refinance the Fairmount 

property to remove Ms. Guy’s name from the liability or to sell the property to remove Ms. Guy’s 

name from the liability.” The trial court was permitted to impose purge conditions to effectuate 

James’s compliance with the property division under the divorce decree. See Chasko at ¶ 24-25. 

 “The party who is in contempt bears the burden of presenting sufficient evidence at the 

contempt hearing to establish that the trial court’s purge conditions are unreasonable or 

impossible for him to satisfy.” Marx, 8th Dist. Cuyahoga No. 82021, 2003-Ohio-3536, at ¶ 22. 

{¶22} James argues that the condition that the listing price be based upon the realtor’s 

recommendation is not contained in the divorce decree. However, the record reflects that James 

acted to impede the sale of the marital home and was unwilling to lower the sale price of the 

home. The purge condition imposed by the trial court allows for the expedited sale of the home 

and is consistent with enforcing the property division under the divorce decree. James also 

objects to the condition that he keep the property in “saleable condition.” Contrary to his 

argument, this condition already was required under the divorce decree. James further 

challenges the additional requirement involving application of the proceeds from the sale of the 

adjacent lot to any remaining mortgages, claiming this is an impermissible attempt to regulate 

future conduct. However, this requirement is consistent with relieving Amy of her legal 

obligations associated with the marital residence. Finally, he objects to the purge condition 

requiring him to reimburse Amy for her attorney fees, but he fails to cite any authority to support 

this argument. 

{¶23} James has not demonstrated that any of the purge conditions are unreasonable or 

impossible to satisfy. Because there was no abuse of discretion by the trial court, its decision 

should be affirmed.