[Cite as Kachmar v. Kachmar, 2014-Ohio-652.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

FRANCES KACHMAR, 

 PLAINTIFF-APPELLEE, 

V. 

STEPHEN KACHMAR, JR., 

 DEFENDANT-APPELLANT. 

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CASE NO. 12 MA 179 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas, Domestic Relations Division of 

Mahoning County, Ohio 

Case No.05DR575 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Attorney Matthew Giannini 

1040 South Commons Place, Suite 200 

Youngstown, Ohio 44514 

For Defendant-Appellant Attorney Daniel Keating 

170 Monroe, NW 

Warren, Ohio 44483 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 
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 Dated: February 21, 2014 
[Cite as Kachmar v. Kachmar, 2014-Ohio-652.]

DONOFRIO, J. 

{¶1} Defendant-appellant Stephen Kachmar Jr. appeals the decision of the 

Mahoning County Common Pleas Court, Domestic Relations Division, finding him in 

contempt of court and sentencing him to 30 days in jail. 

{¶2} After nearly 32 years of marriage, Stephen and plaintiff-appellee 

Frances Kachmar separated and Frances filed for divorce. All of their children were 

emancipated, so the only issues left for resolution were an equitable division of the 

marital property, spousal support, and attorney fees. After initially reaching a 

settlement agreement, Stephen took issue with his Social Security benefits being 

considered when making the property division and pressed for a full trial despite 

there remaining a substantial agreement on most issues. 

{¶3} In the final decree, the trial court awarded Frances 60% of the marital 

assets. Of particular relevance to the present appeal, the court awarded Frances the 

Pontiac Grand Am and ordered that the other three vehicles be sold. In a subsequent 

April 13, 2009 judgment entry, the trial court ordered Stephen to pay Frances 

$3,600.00 in attorney fees. The court found that the amount of attorney fees was 

“necessary and reasonable under the facts and the totality of the circumstances in 

this case,” and that they were “necessitated as a direct result of Defendant’s 

[Stephen’s] refusal to negotiate in good faith in lieu of the litigation of unmeritorious 

issues in the proceedings conducted on 12/27/07, 12/28/07 and the preparation of 

Findings of Fact and Conclusions of Law resulting therefrom.” 

{¶4} Stephen appealed the final decree of divorce, including the subsequent 

award of attorney fees, to this court. Kachmar v. Kachmar, 7th Dist. No. 08 MA 90, 

2010-Ohio-1311. We found two of Stephen’s assignments of error with merit in part 

concerning the trial court’s division of marital property. We found that the trial court 

had erred in ordering Stephen to name Frances as a beneficiary of an unnamed life 

insurance policy the existence of which was not supported by the record and that the 

trial court abused its discretion by using inconsistent dates for the valuation of marital 

property. This court affirmed the trial court’s judgment in all other respects, including 

the award of attorney fees. The trial court’s disposition of the parties’ vehicles was 
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not an issue in the appeal and that part of the court’s decree was left undisturbed. 

{¶5} On May 2, 2011, Frances filed a motion to show cause claiming, among 

other things, that Stephen had failed to pay her attorney fees and failed to deliver the 

cars to the auctioneer. The trial court held a hearing on the motion on December 21, 

2011. On April 16, 2012, the trial court issued findings of fact and conclusions of law. 

The court found Stephen in contempt for failing to pay the attorney fees, but 

suspended any jail sentence giving him until a compliance hearing scheduled for 

June 1, 2012, to purge the contempt finding. Concerning the cars, the court noted 

that Stephen had previously indicated to the court that the final decree had 

misidentified one of the vehicles by incorrectly listing the year it was manufactured. 

Apparently, the auctioneer was unsuccessful in making arrangements with Stephen 

to get the cars and had received a call from an unknown person telling him that the 

final decree was in error. Nonetheless, the court concluded that this did not rise to the 

level of a willful violation of the court’s order. The court gave Stephen 14 days to 

make arrangements with the auctioneer to sell the three vehicles, this time listing 

them by make and model without any reference to the year. 

{¶6} The compliance hearing was ultimately rescheduled and held on 

September 21, 2012. At that hearing, Frances’ counsel indicated that Stephen had 

paid only approximately 50% of the attorney fees. Stephen professed his inability to 

pay the remaining attorney fees because he had been injured and was not able to 

work full-time. However, he also claimed to have a transcript where Frances’ counsel 

stated that he charged $100 per hour, rather than the $200 per hour upon which the 

trial court had based its award of attorney fees. According to his calculations using 

the lower per hour figure, Stephen contended Frances’ attorney had been paid in full. 

As for the vehicles, he testified that he contacted the auctioneer and resurrected his 

argument that the divorce decree incorrectly identified the year of the vehicles. At the 

end of the hearing, the court found Stephen in contempt of court and sentenced him 

to jail until he complied with the court’s order to transfer the vehicles and additionally 

sentenced him to a definite term of 30 days in jail for failing to pay the remaining 
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attorney fees. 

{¶7} On September 24, 2012, Stephen’s counsel contemporaneously filed a 

motion for a stay of execution of the jail sentence pending appeal. The trial court 

granted the motion on September 26, 2012 and ordered Stephen released from jail. 

{¶8} Initially, it should be noted that Frances has not filed a brief in this 

matter. Therefore, we may accept Stephen’s statement of the facts and issues as 

correct and reverse the judgment if Stephen’s brief reasonably appears to sustain 

such action. App.R. 18(C). 

{¶9} Stephen’s sole assignment of error states: 

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN 

SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT 

FOR CONTEMPT OF COURT. 

{¶10} An appellate court’s standard of review of a trial court’s contempt 

finding is abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 

573 N.E.2d 62 (1991). An abuse of discretion exists if the trial court’s decision was 

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 450 N.E.2d 1140 (1983). 

{¶11} Stephen presents two sub-arguments under this sole assignment of 

error – one directed at the award of attorney fees and the other to the vehicles. First, 

he argues that he was financially unable to pay the remaining attorney fees and that 

the trial court erred in sentencing him to a definite term in jail absent an express 

finding that he intentionally and willfully violated the court’s order in that regard. 

{¶12} Concerning Stephen’s argument that he is financially unable to fully pay 

the award of attorney’s fees, “[i]t has long been held that in a contempt proceeding, 

inability to pay is a defense and the burden of proving the inability is on the party 

subject to the contempt order.” Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio4783, 514, 979 N.E.2d 297, ¶ 20, citing State ex rel. Cook v. Cook, 66 Ohio St. 566, 

570, 64 N.E. 567 (1902). “The order of the trial court fixing the amount to be paid and 
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a party’s failure to comply with that order serve as prima facie evidence of contempt.” 

Id. It is not unreasonable to place the burden of showing the inability to pay on the 

party charged with contempt because their financial condition and ability to pay are 

peculiarly within their own knowledge. Id. 

{¶13} Stephen did testify that he had been on sick leave for six weeks which 

had reduced his salary by 50%. (Tr. 3.) After that sick leave, he testified that he had 

another, non-work-related injury involving a torn rotator cuff which has caused him 

pain and required him to take days off from work. (Tr. 3, 5.) 

{¶14} However, a complete review of the September 21, 2012 contempt 

hearing transcript reveals that Stephen failed to meet his burden to prove his inability 

to pay. At the beginning and again at the end of his argument before the trial court 

concerning his alleged inability to pay, Stephen once more argued that Frances’ 

attorney only charged $100 per hour rather than the $200 per hour upon which the 

trial court based its award of attorney fees. (Tr. 2, 6.) Given his calculations, Stephen 

argued that the $2,000 he had already paid to Frances’ attorney constituted complete 

payment of the attorney fees she incurred. (Tr. 6.) 

{¶15} Stephen’s renewed argument concerning the propriety of the award of 

attorney fees certainly could have been viewed by the trial court as calling into 

question his credibility as it related to his claim of being unable to pay the award. In 

assessing a defense of an alleged inability to pay, this court has recognized that the 

trial court is in the best position to evaluate the credibility of the alleged contemnor in 

that regard and this court will not substitute its judgment for that of the trial court in 

such a situation. Anderson v. Anderson, 7th Dist. No. 96 CO 21, 1998 WL 841068, *4 

(Dec. 1, 1998). 

{¶16} We next turn to Stephen’s contention that the trial court erred in 

sentencing him to a definite term in jail absent an express finding that he intentionally 

and willfully violated the court’s order. Stephen has not cited any statutory or case 

law that requires such an express finding. R.C. 2705.05, which governs penalties for 

contempt, provides: 
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(A) In all contempt proceedings, the court shall conduct a 

hearing. At the hearing, the court shall investigate the charge and hear 

any answer or testimony that the accused makes or offers and shall 

determine whether the accused is guilty of the contempt charge. If the 

accused is found guilty, the court may impose any of the following 

penalties: 

(1) For a first offense, a fine of not more than two hundred fifty 

dollars, a definite term of imprisonment of not more than thirty days in 

jail, or both[.] 

{¶17} A review of R.C. 2705.05 reveals no requirement that the trial court 

make an express finding that the contemnor intentionally and willfully violated the 

court’s order as a prerequisite to sentencing the contemnor to a term of an 

imprisonment. Nor can such a requirement be gleaned from case law. 

{¶18} Contempt has been variously classified as either direct or indirect, 

criminal or civil. In re Carroll, 28 Ohio App.3d 6, 8, 501 N.E.2d 1204 (8th Dist.1985). 

Indirect contempt of court “is one committed outside the presence of the court but 

which also tends to obstruct the due and orderly administration of justice.” In re 

Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946). R.C. 2705.02, which outlines 

those acts that are in indirect contempt of court, provides in relevant part: “[a] person 

guilty of any of the following acts may be punished as for a contempt: * * * (A) 

[d]isobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or 

command of a court or officer [.]” 

{¶19} Criminal contempt is generally characterized by an unconditional prison 

sentence that operates not as a coercive remedy but as punishment for the 

completed act of disobedience and to vindicate the court's authority. Brown v. 

Executive 200, Inc., 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610 (1980). In this 

instance, the trial court sentenced Stephen to 30 days in jail for his failure to pay the 

attorney fees as ordered. Thus, this appeal involves indirect criminal contempt. 

{¶20} An action for indirect criminal contempt must be proven beyond a 
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reasonable doubt. Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio 

St.3d 121, 127, 573 N.E.2d 98. Intent to defy the court is an essential element of 

indirect criminal contempt, Id.; In re Carroll, 28 Ohio App.3d 6, 10, 501 N.E.2d 1204 

(8th Dist.1985). However, Stephen has not cited any case law that mandates that the 

trial court make an express finding of intent. Indeed, intent may be inferred from the 

totality of the circumstances. See In re Purola, 73 Ohio App.3d at 313, 596 N.E.2d 

1140 (3d Dist.1991); see also State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 

(2001). The trial court certainly could have inferred Stephen’s intent to violate its 

order from his renewed arguments at the contempt hearing concerning the propriety 

of the award of attorney fees itself. Nevertheless, in this instance, the trial court was 

not required to make an express finding that Stephen intentionally and willfully 

violated the court’s order in order to sentence him to jail for contempt. 

{¶21} Stephen’s second sub-argument under this sole assignment of error is 

that the trial court’s sentencing him to jail over the vehicles violated his due process 

rights of notice and opportunity to be heard because the court had previously found 

him not in contempt on that issue. 

{¶22} Following the first show cause hearing, the trial court determined that 

Stephen had not willfully violated the court’s order concerning the transfer of the 

vehicles to the auctioneer, but did give 14 days to make arrangements with the 

auctioneer to get the vehicles transferred so that they could be sold. Consequently, 

Stephen argues he was denied due process rights of notice and an opportunity to be 

heard when the trial court sentenced him to a “term of imprisonment” following the 

September 21, 2012 compliance hearing. 

{¶23} Stephen’s argument misconstrues the import of the trial court’s different 

entries in this case. At the initial December 21, 2011 show cause hearing, testimony 

was taken and arguments heard on the issue of whether Stephen had complied with 

the court’s final decree concerning the transfer of the vehicles to the auctioneer. 

While the trial court did not cite Stephen for noncompliance in that regard in its 

findings of fact and conclusions of law issued on April 16, 2012, following the 
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hearing, the trial court did give Stephen 14 days to make arrangements with the 

auctioneer to sell the vehicles. Thus, he had an opportunity to be heard on the issue 

at the December 21, 2011 show cause hearing and had notice from the April 16, 

2012 findings of fact and conclusions of law. Consequently, under the facts and 

circumstances of this case, Stephen was afforded due process. Moreover, contrary to 

Stephen’s assertion, the trial court did not sentence him to a “term of imprisonment” 

for his failure to transfer the vehicles. Rather, it sentenced him to jail until he purged 

himself from the contempt. 

{¶24} In sum, Stephen did not meet his burden to prove his defense of 

inability to pay the award of attorney fees and the trial court was not required to make 

an express finding that he had intentionally and willfully failed to pay the attorney fees 

as a predicate to a contempt finding for his failure to do so. Additionally, Stephen was 

afforded due process on the trial court’s contempt finding concerning the vehicles 

because there was a hearing at which that issue was litigated and he had notice 

when the trial court gave him 14 days in its findings of fact and conclusions of law to 

comply with the court’s order. Consequently, the trial court did not abuse its 

discretion in finding Stephen in contempt. 

{¶25} Accordingly, Stephen’s sole assignment of error is without merit. 

{¶26} The judgment of the trial court is affirmed. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.