[Cite as McConnell v. McConnell, 2013-Ohio-694.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

KAREN McCONNELL, : 

 : 

Plaintiff-Appellant, : Case No. 11CA7 

 : 

vs. : 

: DECISION AND JUDGMENT

RANDY McCONNELL, : ENTRY

 : 

Defendant-Appellee. : Released: 02/07/13 

_____________________________________________________________ 

APPEARANCES:

Karen McConnell, Belpre, Ohio, Appellant, pro se. 

Rolf Baumgartel, Marietta, Ohio, for Appellee.1

_____________________________________________________________ 

McFarland, P. J. 

 {¶1} Appellant, Karen McConnell, appeals the judgment of the 

Washington County Court of Common Pleas, finding her in contempt for 

failure to follow the terms of the separation agreement in relation to real 

estate owned by herself and Appellee, Randy McConnell, as required by the 

parties’ divorce decree. On appeal, Appellant contends that 1) the trial court 

erred and abused its discretion by imposing conditions that are unreasonable, 

and that make compliance impossible; and 2) she was denied her Sixth 

Amendment right to the effective assistance of counsel. 

 

1

 Appellee has elected not to file a brief on appeal. 
Washington App. No. 11CA7 2

{¶2} In light of our finding that Appellant failed to raise impossibility 

of compliance as a defense at the trial court level, we will not consider it for 

the first time on appeal. As such, Appellant’s first assignment of error is 

overruled. With regard to Appellant’s second assignment of error, even if 

Appellant’s trial counsel had called the witnesses and raised the issues 

Appellant mentioned, we cannot conclude that it would have changed the 

outcome of the trial. Thus, we cannot conclude that Appellant was deprived 

of the effective assistance of counsel and Appellant’s second assignment of 

error is, therefore, overruled. Accordingly, having overruled both of 

Appellant’s assignments of error, the decision of the trial court is affirmed. 

FACTS 

{¶3} The parties were divorced on December 30, 2002. The divorce 

decree provided that the parties had entered into an oral separation and 

property settlement agreement, which was recited into the decree. With 

regard to the real estate owned by the parties, the decree provided, in 

pertinent part, as follows: 

“The parties own real property located at 203 Oak Drive, Little 

Hocking, Ohio. Wife shall have exclusive right of user for two 

(2) years beginning January 1, 2003. Husband shall be 

responsible for payment of the mortgage, taxes and insurance 
Washington App. No. 11CA7 3

on said real property during that period of time. The payment 

shall be deemed “In the Nature of Spousal Support” and 

nondischargeable in any bankruptcy proceeding. At the 

conclusion of the two (2) year period, Wife shall have the 

option to buy out Husband at a price to be agreed upon at that 

time or to elect that the property be sold with all net proceeds 

after customary expenses of sale and a credit for principal 

reduction to Husband being divided equally. * * * Major 

repairs, if required, shall be the responsibility of Husband who 

shall receive a credit for one-half (1/2) of those repairs at the 

time of the sale or buy out.” 

On October 7, 2009, Appellee filed a motion to show cause as to why 

Appellant should not be held in contempt for her willful failure to abide by 

the prior court order. In his memorandum in support of the motion, 

Appellee claimed that despite the terms of the separation agreement, he had 

permitted Appellant and the parties’ minor child to live in the marital 

residence until the child turned eighteen, which occurred on January 2, 2007. 

Appellee further claimed that since that time Appellant had refused to buy 

him out, or to place the house for sale. 
Washington App. No. 11CA7 4

{¶4} Appellant requested counsel be appointed, and after going 

through several court appointed attorneys, the matter proceeded to a hearing 

on the issue of contempt on January 21, 2011. Appellant, Appellee, and 

attorney Rustin Funk testified at the hearing. Appellant testified that after 

the parties were divorced that they reconciled and lived together at the 

marital residence. She also testified that subsequent to the parties’ divorce 

and during the time that she and Appellee were living together, she executed 

a quitclaim deed to Appellee on February 17, 2006. She testified that 

Appellee was present at attorney Rustin Funk’s office, the attorney who 

prepared the deed, and that it was signed pursuant to an arrangement 

between Appellee and Appellant’s parents.2

 Appellee testified that he didn’t 

remember going to Funk’s office, did not sign the deed and never intended 

to give Appellant a life estate in the marital property. 

{¶5} Attorney Rustin Funk also testified at the hearing regarding his 

preparation of the quitclaim deed. His testimony will be set forth more fully, 

infra, in our consideration of Appellant’s second assignment of error. After 

hearing testimony, the trial court took the matter under advisement. The trial 

court subsequently issued a Ruling on Contempt Motion on February 16, 

2011, finding Appellant in contempt. A journal entry was then filed on 

 

2

 Although Appellant’s testimony provided little detail regarding the substance of the deed, a review of the 

deed indicates that Appellant, by executing the deed, was attempting to transfer her one-half interest in the 

property to Appellee, while reserving a life estate for herself. 
Washington App. No. 11CA7 5

March 9, 2011, finding Appellant in contempt, imposing three days in the 

Washington County jail and giving Appellant an opportunity to purge her 

contempt, which included cooperation in the listing of the house for sale. It 

is from this journal entry that Appellant now brings her appeal, assigning the 

following assignments of error for our review. 

ASSIGNMENTS OF ERROR 

“I. THE COURT OF COMMON PLEAS ERRED THROUGH ABUSING 

ITS DISCRETION BY IMPOSING CONDITIONS THAT ARE 

UNREASONABLE THAT MAKES COMPLIANCE IMPOSSIBLE. 

II. APPELLANT KAREN S. MCCONNELL WAS DENIED HER SIXTH 

AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF 

COUNSEL. ” 

ASSIGNMENT OF ERROR I 

 {¶6} In her first assignment of error, Appellant contends that the trial 

court abused its discretion by imposing conditions that are unreasonable, and 

that make compliance impossible. Specifically, Appellant argues that 

current major repairs and mold remediation are needed on the marital 

residence before it can be placed on the market for sale. She also argues that 

as per the divorce decree, major repairs are Appellee’s responsibility. She 

further argues that the trial court abused its discretion when it held her in 

contempt, claiming that compliance with the order is impossible in light of 

the repairs that are needed. 
Washington App. No. 11CA7 6

{¶7} “ ‘A person guilty of any of the following acts may be punished 

as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, 

process, order, rule, judgment, or command of a court or an officer[.]’ ” 

Townsend v. Townsend, 4th Dist. No. 08CA9, 2008-Ohio-6701, (Dec. 5, 

2008), ¶ 23, quoting R.C. 2705.02(A). “ ‘It is no defense to a finding of 

civil contempt that a party acted in good faith or upon the advice of counsel.’ 

” Townsend at ¶ 23, quoting State ex rel. Adkins v. Sobb, 39 Ohio St.3d 34, 

36, 528 N.E.2d 1247, (1988). 

{¶8} As noted by the Supreme Court of Ohio in Cramer v. Petrie, 70 

Ohio St.3d 131, 133, 637 N.E.2d 882, (1994), the law of contempt is 

intended to uphold and ensure the effective administration of justice, secure 

the dignity of the court, and to affirm the supremacy of law. A court 

possesses inherent and statutory authority to compel compliance with its 

lawfully issued orders. State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 252, 

648 N.E.2d 1355, (1995); R.C. 2705.02(A). 

{¶9} The decision of whether to find an individual in contempt of 

court rests in the sound discretion of the trial court and will not be 

overturned on appeal absent an abuse of that discretion. Townsend at ¶ 25, 

citing State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386, (1980), 

paragraph one of the syllabus. An abuse of discretion connotes a decision by 
Washington App. No. 11CA7 7

the trial court that is unreasonable, arbitrary, or unconscionable. State v. 

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144, (1980). 

{¶10} As we noted in Townsend, contempt may be classified as either 

civil or criminal depending on the court's underlying rationale and the 

penalty imposed. Townsend at ¶ 26, citing Denovchek v. Bd. of Trumbull 

Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362, (1988). While civil 

contempt orders seek to coerce compliance with the court's orders, criminal 

orders punish the party who offends the court. Id.; Brown v. Executive 200, 

Inc., 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610, (1980). Further, 

contempt proceedings in domestic relations matters are normally civil in 

nature because their purpose is to coerce or encourage future compliance 

with the court’s orders. Fidler v. Fidler, Tenth Dist. No. 08AP-284, 2008-

Ohio-4688, (Sept. 16, 2008), ¶ 11 (Internal citations omitted). 

{¶11} It has been held that a finding of civil contempt does not require 

proof of purposeful, willing, or intentional violation of a trial court's prior 

order. Pugh v. Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085, (1984). 

Further, a sanction for civil contempt must allow the offender an opportunity 

to purge himself or herself of the contempt. Townsend at ¶ 27. In the case 

sub judice, the court found Appellant in contempt and sentenced her to three 
Washington App. No. 11CA7 8

days in jail, unless she purged her contempt. Therefore, the trial court's order 

is classified as civil contempt. 

{¶12} The burden of proof in a civil contempt action is clear and 

convincing evidence. Townsend at ¶ 29, citing Brown at 253. “Clear and 

convincing evidence” is evidence that will form a firm belief in the mind of 

the trier of fact as to the facts sought to be established. Cincinnati Bar Assn. 

v. Massengale, 58 Ohio St.3d 121, 122, 568 N.E.2d 1222, (1991). “Clear and 

convincing evidence” is considered a higher degree of proof than a 

“preponderance of the evidence,” the standard generally used in civil cases; 

“clear and convincing evidence” is a less stringent requirement than the 

“beyond a reasonable doubt” standard used in criminal proceedings. Id. 

Appellate courts will reverse a trial court's finding decided under the “clear 

and convincing evidence” standard only if it is not supported by competent, 

credible evidence. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 

(1990). 

{¶13} Importantly, “ ‘ [t]he impossibility of performance of a court 

order, absent fraud or sharp practice, is recognized as a viable defense in a 

contempt proceeding.’ ” Townsend at ¶ 30, citing Romans v. Romans, Ninth 

Dist. No. 23181, 2006-Ohio-6554, (Dec. 13, 2006), ¶ 9, citing Wysocki v. 

Wysocki (1955), 113 N.E.2d 686, 689 (1955); see also Fidler v. Fidler, 
Washington App. No. 11CA7 9

supra, at ¶ 11 (“Impossibility of compliance is an affirmative defense for 

which the alleged contemnor has the burden of proof.”) (Internal citations 

omitted). 

{¶14} Before we reach the merits of Appellant’s first assignment of 

error, we note that Appellant failed to raise impossibility of compliance with 

the court order as a defense in the underlying contempt proceeding. It is a 

cardinal rule of appellate review that a party cannot assert new legal theories 

for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 

41, 43, 322 N.E.2d 629, (1975). Thus, a reviewing court will not consider 

issues which an appellant failed to raise initially in the trial court. Lippy v. 

Society Natl. Bank, 88 Ohio App.3d 33, 40, 623 N.E.2d 108, (11th Dist. 

1993). 

{¶15} Appellant did not raise the defense of impossibility of 

compliance during the contempt hearing. In fact, nothing was mentioned at 

all during the contempt hearing regarding damage to the house or need to do 

“major repairs” in order to be able to list the house for sale. While the 

record does contain multiple pro so filings by Appellant referencing damage 

to the house and the need for mold remediation, none of these documents 

were filed until after the trial court’s contempt finding was issued. Because 

Appellant failed to raise the defense of impossibility of compliance at the 
Washington App. No. 11CA7 10

trial court level, we decline to address it for the first time on appeal. As 

such, Appellant’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

{¶16} In her second assignment of error, Appellant contends that she 

was denied her Sixth Amendment right to the effective assistance of counsel. 

We initially note that Appellant improperly classifies her ineffective 

assistance of counsel argument as a Sixth Amendment issue. “[T]he Sixth 

Amendment does not govern civil cases.” Turner v. Rogers, -- U.S. --, 131 

S.Ct. 2507, 2518 (2011). Instead, “where civil contempt is at issue, the 

Fourteenth Amendment’s Due Process Clause allows a State to provide 

fewer procedural protections than in a criminal case.” Id. Thus, in the 

present case, we would have to find the right to counsel under the Due 

Process Clauses of the United States Constitutions. Id.; see also Liming v. 

Damos, -- Ohio St.3d --, 2012-Ohio-4783, -- N.E.2d --, ¶ 33 (equating “the 

Due Process Clauses of the Ohio and United States Constitutions” in a rightto-counsel analysis”; In re Hue, 62 Ohio St.2d 227, 230, 405 N. 

E.2d 255 (1980) (stating that “the due course of law” provision of the Ohio 

Constitution is virtually the same as the “due process” clause of the 

Fourteenth Amendment to the United States Constitution.”). 
Washington App. No. 11CA7 11

{¶17} “[T[here can be no separate constitutional right to effective 

assistance of counsel when the basic right to counsel has not attached.” 

State v. Meeks, 11th Dist. No. 2011-L-066, 2012-Ohio-4098, ¶ 52. 

Normally, “a party in a civil action has no generalized right to counsel.” 

Dantzig v. Biron, 4th Dist. No. 07CA1, 2008-Ohio-209, (Jan. 18, 2008), ¶ 9, 

citing In re Estate of Perry, 4th Dist. No. 04CA2972, 2005-Ohio-3462, (June 

29 2005), ¶ 6. Thus, in Dantzig we reasoned that “[a] reversal based upon 

ineffective assistance of counsel does not exist when there is no right to 

counsel.” Dantzig at ¶ 9, citing In re Estate of Perry at ¶ 7. Further, the 

United States Supreme Court has recently held that “the Due Process Clause 

does not always require the provision of counsel in civil proceedings where 

incarceration is threatened.” Turner v. Rogers, supra, at 2518. 

{¶18} A review of the record reveals that Appellant requested and the 

trial court appointed counsel for the underlying contempt proceedings. 

Further, the parties herein do not raise as error on appeal any argument 

related to the trial court’s decision to provide court-appointed counsel in the 

proceedings below. As such, we will address Appellant’s second 

assignment of error on the merits. In doing so, we make no judgment 

regarding whether Appellant was entitled to appointed counsel below. 
Washington App. No. 11CA7 12

{¶19} To prevail on a claim of ineffective assistance of counsel, 

Appellant must show that: 1) her counsel's performance was deficient, and 

2) the deficient performance prejudiced her defense so as to deprive her of a 

fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 

N.E.2d 1038, at ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 687, 

104 S.Ct. 2052, (1984). To establish deficient performance, an appellant 

must show that trial counsel's performance fell below an objective level of 

reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, 848 N.E.2d 810, at ¶ 95. To establish prejudice, an appellant must 

show a reasonable probability exists that, but for the alleged errors, the result 

of the proceeding would have been different. Id. Appellant has the burden 

of proof on the issue of counsel's ineffectiveness because a properly licensed 

attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-

Ohio-6679, 860 N.E.2d 77, at ¶ 62. 

{¶20} Here, Appellant argues that she was denied the effective 

assistance of counsel because additional witnesses, namely her parents, were 

not called to testify regarding the preparation of the quitclaim deed. 

Appellant argues that she was further prejudiced by the failure to call her 

parents as witnesses, in that their testimony would have allowed her to 

establish the affirmative defense of payment. Specifically, Appellant argues 
Washington App. No. 11CA7 13

that her act of signing over her interest in the marital property constituted 

payment for the life estate. Finally, Appellant claims her counsel should 

have questioned attorney Rustin Funk on redirect regarding Funk’s 

“repeated assurances about the legitimacy of the Quit-Claim Deed and the 

life estate therein.” 

{¶21} A review of the record reveals that although Appellant’s trial 

counsel did not call Appellant’s parents to testify, Appellant, Appellee, and 

Rustin Funk, the attorney who prepared the deed all testified. Appellant’s 

parents were not parties to the deed, which purported to grant Appellant’s 

one-half interest in the property to Appellee, while reserving a life estate in 

the property for herself. As the language of the deed speaks for itself, and 

Appellant’s parents were not parties to the deed, we fail to see how 

Appellant’s parents’ testimony would have made a difference in the outcome 

of the case. Thus, we reject this portion of Appellant’s argument. 

{¶22} We also reject Appellant’s argument that by having her parents 

testify, she would have been able to establish an affirmative defense of 

payment. Again, Appellant’s parents were not named in the deed and have 

never held any interest in the subject property. We fail to see how any 

testimony they might have offered would have added anything to the 
Washington App. No. 11CA7 14

language of the deed or the testimony provided by Appellant, Appellee and 

Funk, that would have established payment as a defense. 

{¶22} Further, in response to Appellant’s overarching argument that 

the parties entered into an agreement to change the provisions of the 

separation agreement, the trial court considered the quit claim deed in depth 

in its Ruling on Contempt Motion filed on February 16, 2011. 

{¶23} Noting that Appellee’s signature did not appear in the deed, the 

trial court’s assessment of the deed was as follows: 

“Did the deed itself effect the Husband’s interest in the 

real estate so as to restrict his right to enforce the agreement? 

The effect of the deed was to transfer the Wife’s half interest to 

the Husband, reserving to the Wife a life estate in her one-half 

interest in the property. After the deed, the Wife owned less of 

her one-half interest of the property. She transferred the 

remainder of her one-half interest and retained a life estate in 

her one-half. Through the deed she did not obtain a life estate 

in the Husband’s undivided one-half interest. 

After the deed, the Husband still owned his undivided 

one-half interest which he owned before the deed. In addition, 

the Husband owned the Wife’s one-half interest subject to her 
Washington App. No. 11CA7 15

life estate. The Husband did not grant the wife a life estate in 

his half interest. To have that occur, the Husband would have 

had to join in the deed as a grantor.” 

Based upon this reasoning, the trial court concluded that “the deed itself, 

even if made with the Husband’s knowledge and consent, does not restrict 

the Husband’s right to effectuate the separation agreement or otherwise 

effect his ownership of his original one-half of the property.” The court 

further concluded that “[t]he deed does not change anything that would 

require a change in terms of the separation agreement.” 

{¶24} We believe that the reasoning of the trial court is sound with 

respect to the effect of the deed and purported attempt to grant Appellant a 

life estate. Rustin Funk even testified to that effect as follows: 

“Q. * * * Is there any reason why you didn’t have Mr. – have 

a signature line for Mr. McConnell and then have him 

sign it? 

A. I was in a hurry. If they had – I – I’ve told her, if I – I’ll 

be honest with you. If I had to do it over again – well, 

first of all, I – I have since said, they should have done an 

amendment to the separation agreement and filed it of 

record. I mean, just instead of doing stuff like this. If I 
Washington App. No. 11CA7 16

had to do it over again, I would have prepared a 

quitclaim deed from the two of them to her granting her a 

life estate and reserve – and the remainder to him, so that 

way, I would have made it so she had exclusive 

possession.” 

Simply put, the quitclaim deed which purported to grant Appellant a life 

estate did not accomplish what Appellant had intended. 

{¶25} By executing the deed, Appellant essentially reduced her 

interest in the property from an undivided one-half interest, to only a life 

estate in her half-interest. Thus, Appellant ended up with less than what she 

began with. Payment or no payment, the purported grant of a life estate 

certainly did not vest her with any interest that would override her duty 

under the separation agreement to comply with listing the house for sale. As 

such, we cannot conclude that the trial court abused its discretion in finding 

the deed did not alter Appellee’s rights to effectuate the separation 

agreement. In light of the foregoing, we fail to see how having Appellant’s 

parents testify would have established the defense of payment and, or how 

payment, even if established, would have changed the outcome of the trial. 

As such, we reject this portion of Appellant’s argument. 
Washington App. No. 11CA7 17

{¶26} Finally, we consider Appellant’s claim that her counsel should 

have questioned attorney Rustin Funk on redirect regarding Funk’s 

“repeated assurances about the legitimacy of the Quit-Claim Deed and the 

life estate therein.” In particular, Appellant argues that had she not believed 

the quitclaim deed was legitimate, based upon Funk’s repeated assurances, 

that she would have vacated the residence years ago and would not have 

faced the contempt charge. However, as set forth above, “ ‘[i]t is no defense 

to a finding of civil contempt that a party acted in good faith or upon the 

advice of counsel.’ ” Townsend, supra, at ¶ 23, quoting State ex rel. Adkins 

v. Sobb at 36. 

{¶27} Thus, even had her trial counsel questioned Funk regarding his 

alleged assurances and Funk had admitted to them, because good faith 

reliance upon advice of counsel is not a defense to contempt we cannot 

conclude that trial counsel’s failure to pursue this line of questioning 

prejudiced Appellant in any way or changed the outcome of the trial. 

Therefore, we reject this portion of Appellant’s assignment of error as well. 

Having rejected all of Appellant’s arguments claiming ineffective assistance 

of counsel, Appellant’s second assignment of error is overruled. 

Accordingly, the decision of the trial court finding Appellant in contempt is 

affirmed. 
Washington App. No. 11CA7 18

JUDGMENT AFFIRMED. 
Washington App. No. 11CA7 19

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

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 Washington County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Kline, J.: Concurs in Judgment and Opinion. 

Abele, J.: Concurs in Judgment and Opinion as to Assignment of Error I; 

Concurs in Judgment Only as to Assignment of Error II. 

 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.