[Cite as Johns v. Johns, 2013-Ohio-557.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

BARBARA A. JOHNS 

 Appellee 

 v. 

JOHN C. JOHNS 

 Appellant 

C.A. No. 26393 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. 1979-12-4892 

DECISION AND JOURNAL ENTRY

Dated: February 20, 2013 

 

MOORE, Presiding Judge. 

{¶1} Defendant-Appellant, John C. Johns, M.D. (“Husband”), appeals from the March 

28, 2012 judgment entry of the Summit County Court of Common Pleas. We affirm. 

I. 

{¶2} Husband and Barbara Johns (“Wife”) divorced after twenty-two years of marriage. 

Pursuant to their separation agreement, Husband agreed to pay Wife spousal support in the 

amount of $2,400 per month. In 2008, Husband stopped paying the full amount of spousal 

support and Wife filed a motion for contempt. Husband then filed a motion to modify and/or 

terminate spousal support. 

{¶3} In a 2009 order, a magistrate of the trial court (1) modified spousal support to 

$1,600 per month, (2) found Husband in contempt, (3) sentenced Husband to one day in the 

Summit County Jail or 40 hours of community service, unless he purged his contempt by paying 

the spousal support arrearage by April 1, 2009, and (4) issued judgment in favor of wife in the 
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amount of $14,059.31. Husband objected and the trial court overruled his objections, thus 

adopting the magistrate’s decision. Husband timely appealed. 

{¶4} In Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, ¶ 19, this Court affirmed 

the trial court’s finding of contempt. We also reversed, in part, and remanded in order for the 

trial court to consider the Supreme Court of Ohio’s decision in Mandelbaum v. Mandelbaum, 

121 Ohio St.3d 433, 2009-Ohio-1222, with regard to whether the modification was based upon a 

substantial change in circumstances not contemplated at the time the parties entered into their 

decree of divorce. 

{¶5} On remand, the trial court issued an order finding, among other things, that: (1) it 

retained jurisdiction to modify spousal support, (2) Husband’s retirement, health problems and 

the devaluation of his IRA are substantial changes in circumstance, and (3) the parties stipulated 

that these changes in circumstance were not contemplated at the time of their divorce. In so 

holding, the trial court modified spousal support to $1,600 per month. Further, the trial court 

held Husband in contempt, sentenced him to one day in the Summit County Jail or 40 hours 

community service if he fails to pay the arrearage by March 1, 2010, and granted judgment in 

favor of Wife in the amount of $34,859.31. 

{¶6} Husband did not appeal this order. 

{¶7} In May of 2010, Wife filed several motions including one for execution of 

sentence regarding the contempt. Husband then filed a second motion to reduce and/or terminate 

spousal support, along with several motions to appear at the hearing telephonically due to his 

failing health. Wife opposed Husband’s motion by filing a motion to require Husband to 

personally appear in court. 
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{¶8} After a purge hearing in September 2011, attended only by Wife, the magistrate 

issued a decision extending Husband’s purge period to December 1, 2011, and ordering him to 

personally appear one week later in order to establish whether the contempt had been purged. 

The decision states that if Husband fails to appear at the hearing or purge his contempt, the trial 

court shall issue a capias for his arrest and may impose sentence immediately. Husband objected 

alleging that he was not given the opportunity to participate in the September hearing, and 

attached an affidavit further detailing his financial situation. Because no record of the hearing 

existed, the trial court remanded to the magistrate for further proceedings on December 8, 2011, 

and ordered Husband to personally appear at the hearing. 

{¶9} Husband filed another motion to appear telephonically which was opposed by 

Wife. The trial court denied Husband’s motion. 

{¶10} At the December purge hearing, Husband failed to appear. The magistrate found 

that Husband paid $0 dollars toward his spousal support obligation since the 2009 contempt 

finding and sentenced him to one day in the Summit County Jail. In addition, the magistrate 

ordered Husband to appear on March 1, 2012, in order to serve his sentence. The magistrate also 

dismissed all pending motions, including Husband’s motion to modify/terminate spousal support. 

{¶11} Husband objected on the basis that he should not have been ordered to personally 

appear due to his physical limitations and inability to travel, and, as such, was unable to appear 

in March to serve his sentence. The trial court overruled Husband’s objections, adopted the 

magistrate’s decision, and ordered Husband to report to the Summit County Jail on April 30, 

2012, for execution of sentence. 
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{¶12} Husband timely appealed and raises five assignments of error for our 

consideration. For ease of discussion, we have combined and rearranged Husband’s assignments 

of error. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY IMPOSING A SENTENCE FOR 

CONTEMPT WHEN THE PAST DUE SPOUSAL SUPPORT HAD BEEN 

REDUCED TO JUDGMENT. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY IMPOSING A PURGE CONDITION WHICH 

IS NOT SUFFICIENTLY CLEAR TO ALLOW [HUSBAND] TO OBEY. THE 

PURGE CONDITION IS THEREFORE UNREASONABLE AND 

IMPOSSIBLE FOR [HUSBAND] TO MEET. 

{¶13} In his first assignment of error, Husband argues that because his arrearage was 

reduced to a lump sum in 2009, it became a civil debt and, therefore, imprisonment is precluded 

under Article I, Section 15 of the Ohio Constitution. Further, in his third assignment of error, 

Husband argues that the 2009 order is “unclear, ambiguous and subject to more than one 

interpretation,” because it does not specify the amount of arrearage that he was required to pay in 

order to purge the contempt. 

{¶14} It is well-settled that “[r]es judicata bars the assertion of claims against a valid, 

final judgment * * * that have been raised or could have been raised on appeal.” State v. 

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175 

(1967), paragraph nine of the syllabus. Here, Husband could have raised these claims in his 

appeal from the first 2009 order. In addition, assuming he was not already barred by res judicata, 

Husband could have raised these claims in the subsequent order which resulted from this Court’s 
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remand regarding Mandelbaum. However, Husband failed to do so. As such, Husband’s claims 

are now barred by res judicata and we decline to further address them. 

{¶15} Husband’s first and third assignments of error are overruled. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY MODIFYING AND THEREBY 

ENHANCING THE SENTENCE ORIGINALLY IMPOSED FOR CONTEMPT. 

{¶16} In his second assignment of error, Husband argues that the trial court erred by 

sentencing him to one day in the Summit County Jail instead of giving him the option of either 

one day in the Summit County Jail, or 40 hours of community service, as set forth in the 2009 

judgment entry. 

{¶17} We note that Husband failed to specifically raise this argument in his objections to 

the magistrate’s decision. Pursuant to Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain 

error, a party shall not assign as error on appeal the court’s adoption of any factual finding or 

legal conclusion * * * unless the party has objected to that finding or conclusion as required by 

Civ.R. 53(D)(3)(b).” In his objections to the magistrate’s decision, Husband generally objected 

to the entire decision. However, he failed to specifically argue that his sentence was enhanced 

by removing the option of community service. See Civ. R. 53(D)(3)(b)(ii) (requiring objections 

to “be specific and state with particularity all grounds for objection”). Therefore, Husband 

forfeited this argument on appeal unless he can establish plain error. 

{¶18} “In appeals of civil cases, the plain error doctrine is not favored and may be 

applied only in the extremely rare case involving exceptional circumstances where error * * * 

seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby 

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 

Ohio St.3d 116 (1997), syllabus. We conclude that the trial court did not commit plain error in 
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sentencing Husband to serve one day in the Summit County Jail. The record indicates that 

possible jail time was always part of Husband’s original sentence, and nowhere in the record did 

the trial court foreclose its discretion to decide whether Husband would go to jail or participate in 

community service. 

{¶19} Husband’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED BY DISMISSING [HUSBAND’S] MOTION TO 

MODIFY OR TERMINATE SPOUSAL SUPPORT. 

{¶20} In his fourth assignment of error, Husband argues that the trial court erred in 

dismissing his motion to modify/terminate spousal support without first considering his 

deposition testimony in lieu of personally appearing at the hearing. 

{¶21} “This Court reviews a spousal support award under an abuse of discretion 

standard.” Hirt v. Hirt, 9th Dist. No. 03CA0110-M, 2004-Ohio-4318, ¶ 8. An abuse of 

discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion 

standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. 

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶22} Here, the trial court ordered Husband to personally appear at the purge/motions 

hearing, but Husband failed to abide by the court’s order. Further, the record shows that the trial 

court continued this hearing on numerous occasions in order to accommodate both parties and 

allow Husband extra time to purge his contempt. Because Husband was not present to argue the 

merits of his motion to modify/terminate spousal support, when ordered to do so by the court, we 

cannot say that the trial court abused its discretion in dismissing the motion at that time. 
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{¶23} Husband’s fourth assignment of error is overruled. 

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY FAILING TO CONDUCT AN 

INDEPENDENT REVIEW OF THE MAGISTRATE’S DECISION. 

{¶24} In his fifth assignment of error, Husband argues that the trial court did not comply 

with Civ.R. 53(D)(4)(d), which states that: 

If one or more objections to a magistrate’s decision are timely filed, the court 

shall rule on those objections. In ruling on objections, the court shall undertake an 

independent review as to the objected matters to ascertain that the magistrate has 

properly determined the factual issues and appropriately applied the law. Before 

so ruling, the court may hear additional evidence but may refuse to do so unless 

the objecting party demonstrates that the party could not, with reasonable 

diligence, have produced that evidence for consideration by the magistrate. 

Husband alleges that the trial court erred by failing to conduct an independent review of the 

magistrate’s decision. Further Husband contends that the trial court merely recited the 

procedural history of the case, and did not indicate whether it agreed with the magistrate’s 

finding regarding contempt. We disagree. 

{¶25} First, in its March 28, 2012 judgment entry, the trial court states that it reviewed 

the pleadings, transcripts of hearing, and other documents in the file. Second, the trial court 

addressed and analyzed each of Husband’s objections to the magistrate’s decision and provided 

its reasoning in overruling each objection. Third, by imposing sentence, the trial court clearly 

agreed with the magistrate’s finding that Husband failed to purge his contempt. 

{¶26} Husband’s fifth assignment of error is overruled. 

III. 

{¶27} In overruling all of Husband’s assignments of error, the judgment of the Summit 

County Court of Common Pleas, Domestic Relations Division, is affirmed. 

Judgment affirmed. 
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 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 CARLA MOORE 

 FOR THE COURT 

CARR, J. 

BELFANCE, J. 

CONCUR.

APPEARANCES:

SUSAN K. PRITCHARD, Attorney at Law, for Appellant. 

RANDAL A. LOWRY, Attorney at Law, for Appellee.