text:
    CITY OF CLEVELAND, Plaintiff-Appellant v. LABORERS INTERNATIONAL UNION LOCAL 1099, Defendant-Appellee
    No. 105378
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Barbara A. Langhenry, Director of Law, City of Cleveland, Drew A. Carson, Austin Tyler Opalich, Assistant Law Directors, 601 Lakeside Ave., Room 106, Cleveland, OH 44114, ATTORNEYS FOR APPELLANT
    Joseph J. Guarino, Basil William Mangano, Mangano Law Offices Co. L.P.A., 2245 Warrensville Center Rd., Suite 213, Cleveland, OH 44118, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, J., E.A. Gallagher, A.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, J.:

{¶ 1} Plaintiff-appellant, the city of Cleveland appeals from the trial court's order of December 16, 2016, in which the trial court awarded Laborers' International Union of North America, Local Union No. 1099 ("Local 1099" or "the union") reasonable and demonstrable lost back pay in the amount of $309,797.86 following an arbitration award in favor of the union. For the reasons that follow, we affirm.

Procedural History

{¶ 2} Local 1099 is an organization whose workers maintain public parks and malls and other public areas. In 2006, Local 1099 filed a grievance against the city, alleging that the city had violated the parties' collective bargaining agreement and prior settlement agreements by having a private contractor-Downtown Cleveland Alliance ("DCA") and/or Block by Block-perform work traditionally performed by the union. In 2008, the arbitrator determined that the city did, in fact, violate its collective bargaining agreement and letter of understanding with Local 1099, and the arbitrator ordered the city to pay "reasonable and demonstrable lost back pay" to bargaining unit members. The arbitrator retained jurisdiction for 60 days to resolve any issues arising from implementation of the award.

{¶ 3} Thereafter, the city appealed the arbitrator's decision by filing with the trial court a motion to vacate the arbitrator's award. In its motion, the city argued that the arbitrator relied on external law, in violation of the collective bargaining agreement ("CBA"), the arbitrator improperly modified the grievance, and the arbitrator incorrectly found the creation of the "Special Improvement District" created a subcontract between the city and DCA and/ or Block by Block. The city argued in the alternative that the trial court should hold its proceedings in abeyance in order for the city to address the purported back pay and overtime damages during the period of time in which the arbitrator retained jurisdiction over this matter.

{¶ 4} The union then filed an application to confirm the arbitrator's award. The union also filed a motion to strike the city's motion to vacate, stating that the city failed to serve upon the union a copy of the city's motion pursuant to R.C. 2711.13. In February 2009, the trial court denied the city's motion to vacate the arbitration award and it granted the union's motion to confirm the award. The city appealed. In December 2009, this court affirmed the decision of the trial court, finding that the city failed to comply with the procedural requirements of R.C. 2711.13 and, therefore, the trial court lacked jurisdiction to entertain the city's motion to vacate. See Cleveland v. Laborers Internatl. Union Local 1099 , 8th Dist. Cuyahoga No. 92983, 2009-Ohio-6313, 2009 WL 4406081.

{¶ 5} Following this court's 2009 decision, the union returned to the arbitrator with a request for a hearing on the back pay award. The parties agreed to submit briefs in lieu of an evidentiary hearing on back pay amounts, and the arbitrator agreed to accept the briefs for consideration. In May 2010, the union filed its brief on damages to the arbitrator, and the city filed a brief in opposition. In its opposition, the city challenged the arbitrator's jurisdiction to issue a supplemental award on damages in light of the trial court's order of February 2009 confirming the arbitrator's initial award of "reasonable and demonstrable lost back pay."

{¶ 6} On March 27, 2013, approximately three years after Local 1099 filed its brief on damages, the arbitrator issued his decision, finding he lacked jurisdiction to issue an additional award. In doing so, the arbitrator determined he was rendered "functus officio" following issuance and confirmation of the initial award and stated as follows:

As the confirmed award is final and thus unalterable, and the arbitrator functus officio, disputes as to whether remedies required under the award have been met are necessarily submitted to litigation if they cannot be grieved under the agreement. In any case, litigation of the present matter seems likely, irrespective of any additional remedy award issued by this arbitrator.

{¶ 7} On June 28, 2013, the union filed with the trial court a motion to show cause or alternative post-judgment motion to determine reasonable and demonstrable lost back pay. In its motion, Local 1099 requested the trial court issue an order requiring the city to show cause why it should not be found in contempt for refusing to pay "reasonable and demonstrable" back pay. Alternatively, the union requested the trial court, pursuant to Civ.R. 69, issue a post-judgment order setting the amount of "reasonable and demonstrable" back pay in the amount of $309,797.86. The city responded, denying it was violating the arbitrator's decision, and it moved to dismiss the union's complaint for lack of jurisdiction.

{¶ 8} Three additional years later, on December 16, 2016, the trial court issued an order stating that it "reviewed the Laborer's Local 1099's motion to show cause or alternative post-judgment motion to determine reasonable and demonstrable lost back pay, briefs in opposition, various motions filed by both parties in furtherance of their arguments, exhibits, affidavits, and all pleadings," and it awarded the union $309,797.86 in "reasonable and demonstrable lost back pay" as well as prejudgment interest from May 23, 2006.

Assignments of Error

{¶ 9} The city now appeals the trial court's 2016 decision, assigning two errors for our review:

I. The trial court erred in awarding damages as it lacked jurisdiction to modify the underlying arbitration award.
II. The trial court abused its discretion in awarding $309,797.86 in "reasonable and demonstrable lost back pay" as damages.

Law and Analysis

{¶ 10} In its first assignment of error, the city contends that the trial court lacked jurisdiction to modify the arbitrator's award of "reasonable and demonstrable lost back pay" and therefore the court erred in awarding damages not stated in the arbitrator's initial award. In support, the city cites to R.C. Chapter 2711 and argues that the trial court's awarded sum of $309,797.86 was an improper modification of the arbitrator's award. The city further argues that the trial court abused its discretion in awarding the back pay because (1) the union cannot show that the DCA performed services that have been "traditionally and exclusively" performed by members of Local 1099, and (2) the union cannot establish that its members lost wages and overtime opportunities because of the work performed by DCA.

{¶ 11} In response, the union contends that the trial court had jurisdiction to monetize the arbitrator's award of "reasonable and demonstrable" back pay as part of its February 2009 order confirming the arbitrator's award. The union provides that the trial court's general jurisdiction under Civ.R. 69 to entertain execution proceedings supports its position. The union further provides that the trial court's December 2016 award is supported by the evidence.

{¶ 12} Arbitration procedures are governed by R.C. Chapter 2711. And R.C. 2711.09 through 2711.14 provide the only procedures for challenges to, or arguments in support of, an arbitrator's decision. Strnad v. Orthohelix Surgical Designs , 8th Dist. Cuyahoga No. 94396, 2010-Ohio-6161, 2010 WL 5238596, ¶ 23. Once an arbitration is completed, the jurisdiction of the trial court is limited to confirmation, vacation, modification, or enforcement of the award, and only on the terms provided by the statute. Lockhart v. Am. Res. Ins. Co. , 2 Ohio App.3d 99, 101, 440 N.E.2d 1210 (8th Dist.1981), paragraph two of the syllabus.

{¶ 13} R.C. 2711.09 governs the process of confirming an arbitration award:

At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the court of common pleas for an order confirming the award. Thereupon the court shall grant such an order and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 and 2711.11 of the Revised Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.

{¶ 14} "The purpose of [ R.C. 2711.09 ] is to enable parties to an arbitration to obtain satisfaction of the award." Warren Edn. Assn. v. Warren City Bd. of Edn. , 18 Ohio St.3d 170, 172, 480 N.E.2d 456 (1985). Therefore, when a timely motion is made under R.C. 2711.09 to confirm an arbitration award, the court must grant the motion, "unless a timely motion for modification or vacation has been made and cause to modify or vacate is shown." Id. at 174, 480 N.E.2d 456.

{¶ 15} Under R.C. 2711.10, a trial court may vacate an arbitration award, by application of any party, only under the following circumstances:

(A) The award was procured by corruption, fraud, or undue means.
(B) Evident partiality or corruption on the part of the arbitrators, or any of them.
(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

{¶ 16} R.C. 2711.11 provides similarly limited conditions upon which a trial court may, upon application of any party, modify or correct an arbitration award:

(A) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award;
(B) The arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted;
(C) The award is imperfect in matter of form not affecting the merits of the controversy.

{¶ 17} Thus, the trial court's jurisdiction to review an arbitration award is "narrow and limited." Warren Edn. Assn. , 18 Ohio St.3d at 173, 480 N.E.2d 456. And a trial court is precluded from examining the actual merits upon which the arbitrator based his or her award. See Motor Wheel Corp. v. Goodyear Tire & Rubber Co. , 98 Ohio App.3d 45, 51, 647 N.E.2d 844 (8th Dist.1994).

{¶ 18} Likewise, appellate review of arbitration proceedings is confined to those orders the trial court has issued pursuant to R.C. Chapter 2711, and the substantive merits, or the original arbitration award, are not reviewable on appeal. Lockhart , 2 Ohio App.3d at 101, 440 N.E.2d 1210. "The agreement to submit to arbitration describes the issues and defines the perimeters of the arbitration tribunal's powers with respect to them. When the submitted issues are decided, the arbitrators' powers expire. Thus, a second award on a single, circumscribed submission is a nullity." Id. at 101-102, 440 N.E.2d 1210 ; Reynoldsburg City School Dist. Bd. of Edn. v. Licking Hts. Local School Dist. Bd. of Edn. , 10th Dist. Franklin No. 08AP-415, 2008-Ohio-5969, 2008 WL 4927406, ¶ 22.

{¶ 19} Here, the arbitrator determined in February 2008 that the city had a relationship with the private contractor, DCA and/or Block by Block, the services included work traditionally performed by the union, and the city did not give the union an opportunity to submit an alternative proposal, in violation of the parties' CBA, and the arbitrator awarded the union "reasonable and demonstrable lost back pay." This award, in totality, was confirmed by the trial court, upon the union's application, and later affirmed by this court. See Cleveland , 8th Dist. Cuyahoga No. 92983, 2009-Ohio-6313, 2009 WL 4406081. Because the submitted issues had been decided-by the arbitrator, the trial court, and the court of appeals-the arbitrator's powers had expired. Therefore, the arbitrator was correct when he declined to revisit his award of "reasonable and demonstrable lost back pay" after this court affirmed the trial court's order confirming the arbitrator's award.

{¶ 20} As a result of this court's decision in 2009, and the arbitrator's lack of jurisdiction to review its initial award, the parties are bound by the arbitrator's determination that the city violated the parties' CBA and the union is due "reasonable and demonstrable lost back pay." Unfortunately, an award for "reasonable and demonstrable lost back pay" lacks a specific dollar amount and is therefore unenforceable as awarded.

{¶ 21} We find that the trial court's award of a sum certain, $309,797.86, was a proper and necessary exercise of the court's enforcement powers.

{¶ 22} It is well established that trial courts have inherent power to interpret and enforce its own judgments. Mike McGarry & Sons, Inc. v. Marous Bros. Constr., Inc. , 11th Dist. Lake No. 2011-L-001, 2011-Ohio-6859, 2011 WL 6940476, ¶ 23, citing Armco, Inc. v. United Steelworkers of Am. , 5th Dist. Richland No. 2002CA0071, 2003-Ohio-5368, 2003 WL 22300027, ¶ 43 ; Howard v. Howard , 10th Dist. Franklin No. 14AP-292, 2014-Ohio-5248, 2014 WL 6657196, ¶ 15. Additionally, trial courts have the power to issue orders pursuant to the rules of civil procedure, and these orders necessarily "ensure that litigation progresses toward final resolution." McCord v. McCord , 10th Dist. Franklin Nos. 06AP-102 and 06AP684, 2007-Ohio-164, 2007 WL 118002, ¶ 12. "Courts of general jurisdiction possess inherent power to do all things necessary to the administration of justice and to protect their own powers and processes." Slabinski v. Servisteel Holding Co. , 33 Ohio App.3d 345, 346, 515 N.E.2d 1021 (9th Dist.1986). Such power is "necessary to the orderly and efficient exercise of jurisdiction" and without which "no other [power] could be exercised." Hale v. State , 55 Ohio St. 210, 213, 45 N.E. 199 (1896).

{¶ 23} Importantly, a confirmed arbitration award has the effect of a judgment and can be enforced by the trial court. Athens Cty. Commrs. v. Ohio Patrolmen's Benevolent Assn. , 4th Dist. Athens No. 06CA49, 2007-Ohio-6895, 2007 WL 4464626, ¶ 47. R.C. 2711.12 provides that "[u]pon the granting of an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding, the court must enter judgment in conformity therewith." The judgment is then docketed "and in all respects has the same effect and is subject to all laws relating to a judgment in an action and may be enforced as if rendered in an action in the court in which it is entered." Champlin v. Kraftmaid Cabinetry, Inc. , 190 Ohio App.3d 202, 2010-Ohio-5398, 941 N.E.2d 124 (11th Dist.).

{¶ 24} This court previously denied mandamus where we found that a teacher had other avenues of enforcement available concerning her award of back pay in Hunt v. Westlake City School Dist. Bd. of Edn. , 114 Ohio App.3d 563, 683 N.E.2d 803 (8th Dist.1996). In Hunt , the relator-teacher initially filed a cause of action against the board of education and the school principal, seeking reinstatement, back pay, and other damages. When the trial court rendered judgment for the board, Hunt appealed to this court, which reversed the trial court and awarded Hunt " 'all compensation and benefits which she has lost as a result of the unlawful nonrenewal of her contract.' " Id. at 565, 683 N.E.2d 803, quoting Hunt v. Westlake City School Dist. , 100 Ohio App.3d 233, 244, 653 N.E.2d 732 (8th Dist.1995). The board ultimately tendered her compensation in an amount the board deemed appropriate, and Hunt declined the offer and filed an application seeking a writ of mandamus to enforce the appellate judgment of this court. Id. at 566-567, 683 N.E.2d 803.

{¶ 25} In denying mandamus, we found that Hunt's remedy remained with the trial court's general enforcement powers:

The use of mandamus to enforce a judgment is not popular and widespread because other avenues of enforcement are readily available. For example, when the Supreme Court of Ohio remands a judgment to this Court for execution, this Court has jurisdiction to entertain a motion for an order against an offending party to show cause why the offender should not be held in contempt for noncompliance with the judgment of the Supreme Court. * * * Likewise, when this Court remands a judgment to the Common Pleas Court for execution, the Common Pleas Court has jurisdiction to entertain execution proceedings.

Id. at 568, 683 N.E.2d 803, citing App.R. 27 ; Civ.R. 69, 70 ; R.C. Chapters 2327 (execution generally), 2329 (execution against property), 2331 (execution against the person). We therefore denied the writ, finding that the Cuyahoga County Common Pleas Court had "acquired jurisdiction to enforce the judgment of this court." Hunt at 568, 683 N.E.2d 803.

{¶ 26} Here, we have an arbitrator's award that has been confirmed, and pursuant to R.C. 2711.12, it has the effect of a judgment and can be enforced by the trial court. In considering Local 1099's motion to show cause or alternative post-judgment motion to determine "reasonable and demonstrable lost back pay," reviewing the parties' briefs and responses, examining the evidence, and awarding the union $309,797.86, the trial court did not improperly modify the arbitrator's award of "reasonable and demonstrable lost back pay." Rather, the court exercised its authority to issue orders pursuant to the rules of civil procedure and its inherent power to interpret and enforce a judgment of the court. Such action was necessary to provide meaning and effect to the judgment and ensure that litigation progresses toward final resolution. Without the court's order, the arbitration award of "reasonable and demonstrable lost back pay" was meaningless and unenforceable.

{¶ 27} The city's first assignment of error is overruled.

{¶ 28} In its second assignment of error, the city argues that the trial court abused its discretion in awarding $309,797.86 in "reasonable and demonstrable lost back pay." In response, the union contends that the correct standard of review is whether some evidence exists in the record to support the trial court's ultimate conclusion. The union further contends that because the city failed to request findings of fact and conclusions of law pursuant to Civ.R. 52, it cannot now argue the trial court abused its discretion.

{¶ 29} Civ.R. 52 applies when a case proceeds to a bench trial:

When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision, whichever is later, in which case, the court shall state in writing the findings of fact found separately from the conclusions of law.

{¶ 30} The purpose of findings of fact and conclusions of law is to enable proper appellate review. Galloway v. Butler , 8th Dist. Cuyahoga No. 91256, 2008-Ohio-5352, 2008 WL 4599642, ¶ 16, citing Fox v. Fox , 8th Dist. Cuyahoga No. 62454, 1993 WL 267111 (July 15, 1993). The findings of fact and conclusions of law "aid the appellate court in reviewing the record and determining the validity of the basis of the trial court's judgment." Werden v. Crawford , 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (1982). A party may file a Civ.R. 52 request for findings " 'to ensure the fullest possible review.' " Redmond v. Wade , 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, 2017 WL 2257731, ¶ 51, quoting Cherry v. Cherry , 66 Ohio St.3d 348, 356, 421 N.E.2d 1293 (1981).

{¶ 31} In the absence of findings of fact and conclusions of law, a reviewing court would presume regularity in the trial below and assume the trial court followed the proper application of the rules in arriving at its decision.

Law Office of Natalie F. Grubb v. Bolan , 11th Dist. Geauga No. 2010-G-2965, 2011-Ohio-4302, 2011 WL 3808578, ¶ 26 ; Larko v. Dearing , 11th Dist. Ashtabula No. 2013-A-0007, 2013-Ohio-4304, 2013 WL 5443828, ¶ 29 (where findings of fact were never requested, the reviewing court will presume the trial court "considered all relevant facts").

{¶ 32} As the Fifth District Court of Appeals explained:

[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence.
The message should be clear: If a party wishes to challenge the * * * judgment as being against the manifest weight of the evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already "uphill" burden of demonstrating error becomes an almost insurmountable "mountain."

Pettet v. Pettet , 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th Dist.1988).

{¶ 33} Thus, where there are no findings of fact, we must review the record to determine whether there is "some evidence" to support the trial court's decision. Galloway , 8th Dist. Cuyahoga No. 91256, 2008-Ohio-5352, 2008 WL 4599642, at ¶ 19 ; Bolan at ¶ 26. And where there is some evidence supporting the trial court's conclusion, "we assume regularity and affirm the judgment." Galloway .

{¶ 34} Here, the trial court reviewed the record to determine what constituted "reasonable and demonstrable lost back pay"-a factual determination. The city did not request findings and conclusions, and the trial court issued a general judgment in favor of the union. We therefore review the record for "some evidence" supporting the trial court's award of $309,797.86 in "reasonable and demonstrable lost back pay."

{¶ 35} Before entering judgment, the trial court considered the union's motion to show cause or alternative post-judgment motion to determine reasonable and demonstrable lost back pay, briefs in opposition, various motions filed by both parties, exhibits, affidavits, and "all pleadings." Considering this matter has been in litigation in some form or another since the union filed its initial grievance in 2006, the record is considerable.

{¶ 36} Specifically, the trial court considered the union's "damages brief" attached to the union's motion to show cause/post-judgment motion, which was initially prepared for the arbitrator's consideration and in lieu of an evidentiary hearing on "reasonable and demonstrable lost back pay." This brief identified documentation received in response to a subpoena served upon Block by Block, which included time cards of employees and/or volunteers who worked on public areas maintained by the city "from May 23, 2006 to present," payroll records of these workers, a list of all employees who worked on the public areas, and "any documents describing where and what type of work the employees and/or volunteers performed."

{¶ 37} Additionally, on November 23, 2015, the union filed a notice of supplemental filings to its motion to show cause/post-judgment motion, which included Excel spreadsheets summarizing the payroll data produced by Block by Block, along with a CD containing all documents produced by Block by Block; arbitration transcripts from 2007 and 2008 concerning the initial grievance that contained evidence of the duties performed by Block by Block that was purportedly historically performed by Local 1099; and information from the Ohio Department of Taxation concerning how to calculate interest from 2006.

{¶ 38} These documents produced by Block by Block included the total number of hours the members of the Block by Block's "Clean Team" worked on public property owned or maintained by the city as 11,763.25 hours. They also included the hours the relevant members of the Clean Team worked during each applicable period: 3,818.75 hours in 2006; 5,544.50 hours in 2007; and 2,400 hours in 2008.

{¶ 39} Local 1099's damages brief also included the union's wage sheets, which contained the wages for bargaining unit classifications for 2006 through 2008. These wage sheets depict the straight time and overtime pay for the ground maintenance worker and the real estate maintenance worker for each of these years. For the ground maintenance worker, straight time is listed as $16.41 (2006), $16.75 (2007), and $17.09 (2008); and overtime pay is $24.61 (2006), $25.12 (2007), and $25.64 (2008). For the real estate maintenance worker, straight time is listed as $17.25 (2006), $17.60 (2007), and $17.95 (2008); and overtime pay is $25.87 (2006), $26.40 (2007), and $26.93 (2008).

{¶ 40} Based upon our review of the record, including the documentation discussed above, we find there is "some evidence" in the record that demonstrates the work performed by Block by Block, the total number of hours that members of Block by Block worked, and the wages attributed to the relevant members of the union during the applicable time period. We therefore conclude that the trial court did not error in awarding Local 1099 "reasonable and demonstrable lost back pay" in the amount of $309,797.86, because there is "some evidence" supporting the trial court's determination. In presuming regularity in the trial court, as we must, we affirm the trial court's award.

{¶ 41} The city's second assignment of error is overruled.

{¶ 42} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and MARY J. BOYLE, J., CONCUR

      The arbitrator later extended this jurisdiction for another 60 days total, until June 27, 2008.

      The union also filed a motion to vacate the arbitrator's March 2013 award in Cuyahoga C.P. No. CV-13-809525, Laborers' Local Union No. 1099 v. Cleveland , to preserve this remedy. The record shows that the parties jointly agreed to stay the matter in Case No. CV-13-809525 pending the resolution of the case at hand.


source: Caselaw Access Project

author: KATHLEEN ANN KEOUGH, P.J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Cedric N. JEFFRIES, Defendant-Appellant
    No. 105379
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Eric M. Levy, 55 Public Square, Suite 1600, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Jeffrey Schnatter, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Keough, P.J., Laster Mays, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, P.J.:

{¶ 1} Defendant-appellant, Cedric Jeffries ("Jeffries"), appeals from the trial court's judgment finding him guilty of rape and kidnapping and sentencing him to 15 years to life in prison. For the reasons that follow, we affirm in part; reverse in part; and remand for a hearing regarding the imposition of court costs.

I. Background

{¶ 2} Jeffries was charged in a four-count indictment as follows: Count 1, rape in violation of R.C. 2907.02(A)(1)(b) ; Count 2, kidnapping in violation of R.C. 2905.01(A)(4) with a sexual motivation specification; Count 3, rape in violation of R.C. 2907.02(A)(2) ; and Count 4, kidnapping in violation of R.C. 2905.01(A)(4) with a sexual motivation specification. Counts 1 and 2 related to an incident that occurred on December 23, 2011, the victim's twelfth birthday, and Counts 3 and 4 related to an incident that occurred in March 2016, when the victim was 16 years old. Jeffries pleaded not guilty and the case proceeded to a jury trial.

{¶ 3} The evidence adduced at trial demonstrated that Jeffries and R.S., the victim's mother, had an on and off relationship for several years. During those years, R.S. had one child with Jeffries and two children with other men, including D.S., the victim in this case. R.S. eventually lost custody of the children, and they went to foster care.

{¶ 4} D.S. testified that she lived in three different foster homes before she was six years old, when she went to live with H.G., Jeffries's mother, who had obtained custody of R.S.'s three children. Jeffries also lived in the home. D.S. was not Jeffries's biological child but she testified that she considered him to be her father and called him "Dad."

{¶ 5} D.S. testified that about a year after she moved in, Jeffries began touching her inappropriately. She said the first incident she remembered was when Jeffries lay on his back on the couch, placed her on his stomach, placed his hand on her buttocks, and then moved his hand around. Both D.S. and Jeffries were clothed during this incident.

{¶ 6} D.S. testified that the inappropriate touching continued as she grew older. She recalled an incident when she was about nine years old when Jeffries came into the living room while she was watching television and forced her to take her clothes off and sit on his lap on the couch. She testified that there were other incidents where Jeffries would force her to take her clothes off and sit on his lap; she said that sometimes he was dressed during these incidents but at other times he would have his pants down. She said that during these incidents, Jeffries would touch her buttocks, breasts, and vagina. D.S. testified that the incidents occurred when H.G. left the house on the weekends or after her brothers were in bed.

{¶ 7} D.S. testified that on December 23, 2011, her twelfth birthday, Jeffries instructed her to take her clothes off and lay on the couch. She said that Jeffries, who was undressed, laid on top of her and after touching her vagina, inserted his fingers and then his penis into her vagina. D.S. testified that she did not feel like she could leave or get away from Jeffries during this incident.

{¶ 8} D.S. testified that this type of sexual activity continued for "years." She said that she never told anyone about the abuse because she was afraid that no one would believe her, or she would be sent back to foster care.

{¶ 9} In March 2016, when she was sixteen years old, D.S. finally told Jacqueline Bell, the principal at her high school, about the abuse because she "was just tired of it." D.S. testified that one or two weeks before she told Ms. Bell, Jeffries came into her bedroom one night as she was sleeping. She said she was sleeping on her stomach, dressed in pajama pants, underwear, and a tee-shirt, when she awoke to Jeffries lying on top of her. D.S. testified that Jeffries pulled her pajama pants and underwear down, and then pulled his own pants off. She said that he then got back on top of her and put his penis in her vagina. She testified that during this incident, she did not feel like she could leave and had no choice but to stay.

{¶ 10} After Jeffries left her room, D.S. decided to run away. She packed two bags and left home at approximately 11 p.m. D.S. said she took Jeffries's cell phone with her because he had hidden her phone.

{¶ 11} During the hours after D.S. ran away, Jeffries called her over 30 times but D.S. did not answer. He also texted her at approximately 10:30 a.m. the following morning, telling her "police on way" and asking her to "don't tell on me."

{¶ 12} After she ran away, D.S. walked to her high school and when it opened at 7 a.m., told Bell about the abuse. Bell called Cuyahoga County Department of Children and Family Services ("CCDCFS"), and CCDCFS social worker Shannon Sneed responded to the school and interviewed D.S. The police were called, and Jeffries was eventually arrested.

{¶ 13} At trial, Jeffries denied that he ever sexually abused D.S. He admitted sending a text to her the morning after she ran away, but said that he texted "police on way" only because he did not want D.S. to be scared when the police arrived at her school. He also said he intended to text "just talk to me" but the old cell phone he was using somehow changed his text to "don't tell on me."

{¶ 14} The jury found Jeffries guilty of all counts. The prosecutor and defense counsel agreed that for purposes of sentencing, Counts 1 and 2 merged and Counts 3 and 4 merged. The state elected to proceed to sentencing on Counts 2 and 3. The trial court sentenced Jeffries to life in prison on Count 2, with parole eligibility after 15 years, to run concurrent to 10 years incarceration on Count 3. The court also imposed court costs. This appeal followed.

II. Law and Analysis

A. Evidence of Victim's Prior Allegations of Nonconsensual Sexual Abuse Precluded From Trial

{¶ 15} Prior to trial, the trial court held an in camera hearing pursuant to State v. Boggs , 63 Ohio St.3d 418, 588 N.E.2d 813 (1992), to determine the admissibility at trial of evidence regarding D.S.'s prior allegations of sexual misconduct against a foster brother. At the hearing, D.S. testified that when she was in a foster home at age four or five, one of her foster brothers sexually abused her, including putting his penis in her vagina. She said that the activity was not consensual, and that she honestly disclosed the abuse to a CCDCFS social worker. The trial court then denied Jeffries's request to allow defense counsel to ask questions of D.S. regarding these prior allegations of sexual abuse by the foster brother, concluding that cross-examination on this issue was precluded by Ohio's rape shield statute. In his first assignment of error, Jeffries contends that the trial court erred in denying his request because it violated his Sixth Amendment right to confront the witnesses against him.

{¶ 16} R.C. 2907.02(D), Ohio's rape shield statute, states, in relevant part, that:

Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

{¶ 17} Jeffries cites to State v. Stoffer , 7th Dist. Columbia No. 09-CO-1, 2011-Ohio-5133, 2011 WL 4579182, in which the Seventh District found that the rape shield statute address only prior consensual sexual activity of the victim and not prior sexual abuse suffered by the victim. Id. at ¶ 98. Thus, in Stoffer , although it ultimately found the error to be harmless, the Seventh District held that the trial court erred in applying the rape shield statute to preclude the defendant from introducing evidence that the victim had previously been sexually abused by someone other than the defendant. In State v. Sledge , 6th Dist. Lucas No. L-15-1109, 2016-Ohio-4904, 2016 WL 3654677, the Sixth District, citing Stoffer , found that where alleged prior sexual abuse of the victim does not result from "volitional sexual acts * * * it may not fall within the general prohibition mandated by R.C. 2907.02(D)." Id. at ¶ 19. In reliance on Stoffer and Sledge , Jeffries asserts that the rape shield statute did not preclude his cross-examination of D.S. regarding her prior allegations of sexual abuse against a foster brother. We disagree because the Ohio Supreme Court has made it clear that both prior nonconsensual and consensual sexual activity of the victim are protected by the rape shield statute.

{¶ 18} In Boggs , supra, the Ohio Supreme Court considered whether the rape shield statute prohibits a defendant from cross-examining an alleged rape victim about prior false rape allegations. The court held that before cross-examination of a rape victim regarding prior false rape accusations may proceed, "the trial judge shall hold an in camera hearing to ascertain whether such testimony involves sexual activity and thus is inadmissible under R.C. 2907.02(D), or is totally unfounded and admissible for impeachment of the victim." Boggs , 63 Ohio St.3d at 424, 588 N.E.2d 813.

{¶ 19} The Supreme Court also held that the burden is on the defendant to demonstrate that the accusations were false. The court stated:

the initial inquiry must be whether the accusations were actually made by the prosecutrix. Moreover, the trial court must also be satisfied that the prior allegations of sexual misconduct were actually false or fabricated. That is, the trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area. Only if it is determined that the prior accusations were false because no sexual activity took place would the rape shield law not bar further cross-examination.

(Emphasis added.) Id. at 423, 588 N.E.2d 813. In short, if any type of sexual activity occurred and the allegation was not false, the victim is protected by the rape shield statute, and the defendant may not question the victim about the prior sexual activity.

{¶ 20} Here, the trial court conducted an in camera hearing at which it learned that the incident involving D.S.'s foster brother had occurred one or two years before she moved in with H.G. and Jeffries. D.S. never wavered from her claims that the incident occurred, and that she honestly reported it to CCDCFS. After hearing from D.C., the trial court decided that the incident was protected by the rape shield statute because it involved sexual activity, and there was no evidence whatsoever that the allegation was false. On this record and in light of Boggs , we find no abuse of discretion in the trial court's ruling. The first assignment of error is therefore overruled.

B. Other Acts Evidence

{¶ 21} In his second assignment of error, Jeffries contends that the trial court erred by admitting evidence of his prior bad acts; specifically, in allowing D.S. to testify about prior instances of sexual abuse against her other than the two incidents for which he was indicted. Jeffries contends this evidence was "classic bad-man evidence" that was unrelated to the two incidents for which he was indicted and allowed the jury to convict him on the charged offenses merely because it assumed that he acted in conformity with his bad character.

{¶ 22} Defense counsel did not object to the admission of this evidence at trial and therefore has waived all but plain error on appeal. State v. Jones , 91 Ohio St.3d 335, 343, 744 N.E.2d 1163 (2001) ; State v. Tibbs , 8th Dist. Cuyahoga No. 89723, 2008-Ohio-1258, 2008 WL 740534, ¶ 9. Plain error exists where, but for the error, the outcome of the trial clearly would have been different. Tibbs at id. Appellate courts find plain error only in exceptional cases where it is necessary to prevent a manifest miscarriage of justice. Id.

{¶ 23} "Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose it to show the accused's propensity or inclination to commit crime, or that he acted in conformity with bad character." State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. However, there are exceptions that allow other acts of wrongdoing to be admitted.

{¶ 24} First, R.C. 2945.59 provides that:

[i]n any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶ 25} Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident.

{¶ 26} In deciding whether to admit other acts evidence, trial courts should conduct a three-step analysis:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.

Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278 at ¶ 20.

{¶ 27} Applying this test to the challenged testimony, we find no abuse of discretion by the trial court in admitting the evidence. First, the other acts evidence was relevant because it tended to show Jeffries's plan for grooming D.S. for sexual activity. " 'Shaping and grooming describes the process of cultivating trust with a victim and gradually introducing sexual behaviors until reaching the point of intercourse.' " Id. at ¶ 21, quoting United States v. Johnson , 132 F.3d 1279, 1280, fn. 2 (9th Cir.1997). D.S.'s testimony established that the grooming started at six years of age when Jeffries held her and touched her buttocks; progressed through the years to Jeffries having her take her clothes off and sit naked on his lap; escalated to Jeffries touching her breasts and vagina; and finally, culminated in incidents when Jeffries would insert his penis in D.S.'s vagina.

{¶ 28} Next, the testimony was elicited for a legitimate purpose under Evid.R. 404(B), which provides that other acts evidence may be admitted to show motive, intent, plan, scheme and absence of mistake. D.S.'s testimony was relevant to Jeffries's plan and scheme to groom her over the years from touching to sexual intercourse.

{¶ 29} And the probative value of the evidence was not outweighed by the danger of unfair prejudice. Rather than inflaming the jury and appealing only to its emotions (the general test for unfairly prejudicial evidence), the evidence of Jeffries's grooming of D.S. provided a basis for the jury to recognize his ongoing scheme for sexual activity with D.S. And although the trial court did not give a limiting instruction regarding the other acts evidence, D.S. was subject to cross-examination, and defense counsel challenged her credibility and testimony regarding Jeffries's sexual motives and actions. Likewise, Jeffries testified in his own defense that D.S. was lying. The jury was free to judge the credibility of the witnesses.

{¶ 30} Finally, Jeffries did not request that the trial court give a limiting instruction regarding the other acts evidence. His failure to do so waives all but plain error. State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 136. Where the defense fails to request a limiting instruction on other acts evidence, the trial court's failure to give such an instruction is not plain error where nothing suggests the jury used other acts evidence to convict the defendant because he was a bad person. Id. Jeffries points to nothing that suggests the jury did so. Accordingly, we find no plain error in the trial court's failure to give a limiting instruction and in admitting the other acts evidence.

{¶ 31} The second assignment of error is therefore overruled.

C. Jury Instruction-Kidnapping

{¶ 32} Under R.C. 2905.01(C)(3)(a), if the victim of a kidnapping was under 13 years of age and the offender is also convicted of a sexual motivation specification, as Jeffries was, kidnapping is a felony of the first degree, and the offender shall be sentenced to an indefinite term of 15 years to life in prison. If, however, the victim was released in a safe place unharmed, the offender shall be sentenced to an indefinite term of 10 years to life in prison.

{¶ 33} In his third assignment of error, Jeffries contends that he was deprived of his Sixth Amendment right to trial by jury because the trial court did not instruct the jury with respect to Count 2 that it should make a determination as to whether D.S. was released in a safe place unharmed. He argues that the "released in a safe place unharmed" provision of R.C. 2905.01(C)(3)(a) is a factual sentencing determination that the finder of fact is required to make because it controls which of the two sentencing terms the trial court is required to impose. He asserts that the trial court therefore erred in not instructing the jury to make this determination. Jeffries did not request such a jury instruction, however, and has waived all but plain error, which we do not find.

{¶ 34} This court considered and rejected a similar argument in State v. Bolton , 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169, 2012 WL 171039. In Bolton , the defendant argued that he was denied due process because the trial court did not instruct the jury to determine whether the victim was released in a safe place unharmed, a factor that would have reduced the kidnapping offense in that case from a felony of the first degree to a second-degree felony. We found that the "released in a safe place unharmed" provision of R.C. 2905.01(C) is not an element of the offense of kidnapping; instead the defendant "must plead and prove that assertion as an affirmative defense." State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 233. See also State v. Singleton , 2016-Ohio-4696, 69 N.E.3d 118, ¶ 35.

{¶ 35} We also found that " 'the court has no duty to give jury instructions that are neither supported by the facts nor that assist the jury.' " Bolton at ¶ 56, quoting State v. Ogletree , 8th Dist. Cuyahoga No. 79882, 2002-Ohio-4070, 2002 WL 1821958, ¶ 14. Because the appellant had failed to provide any evidence that the victim was released unharmed, we held that the trial court did not err by not giving a jury instruction on the "released in a safe place unharmed" issue. Bolton at id.

{¶ 36} In this case, as in Bolton , Jeffries never argued that D.S. was released unharmed nor did he provide any evidence that she was released unharmed. Instead, ample evidence provided by the state demonstrated that D.S. was indeed harmed-she was raped by Jeffries before she was released. Further, she was referred for psychological counseling after the abuse was discovered. As this court stated in Bolton , " 'it is difficult indeed to imagine that one may engage in sexual activity with another against their will and still argue that such a person is left 'unharmed.' " Id. , quoting State v. Arias , 9th Dist. Lorain No. 04CA008428, 2004-Ohio-4443, 2004 WL 1882631, ¶ 38. Because there was no evidence that D.S. was released unharmed, the trial court did not err in not instructing the jury on this issue. The third assignment of error is overruled.

D. Ineffective Assistance of Counsel

{¶ 37} Jeffries next argues that his counsel was ineffective for not (1) objecting to the admission of other acts evidence; (2) objecting to the lack of a "released in a safe place unharmed" jury instruction; and (3) filing an affidavit of indigency and asking the court to waive the imposition of court costs at sentencing.

{¶ 38} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052.

{¶ 39} Having found no error in the admission of other acts evidence, we find no ineffective assistance in counsel's failure to object to this evidence. Likewise, having found no error in the trial court's failure to give a "released in a safe place unharmed" jury instruction regarding kidnapping, we find no ineffective assistance in counsel's failure to object to the lack of such an instruction.

{¶ 40} With respect to counsel's failure to move the court to waive court costs, we note that R.C. 2947.23(A)(1) governs the imposition of court costs and provides that "[i]n all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs." The statute does not prohibit a court from assessing costs against an indigent defendant; rather "it requires a court to assess costs against all convicted defendants." State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 ; State v. Brown , 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, 2016 WL 1461495, ¶ 12. Thus, a sentencing court must include the costs of prosecution in the sentence and render a judgment for costs against the defendant even if the defendant is indigent. White at id.

{¶ 41} In its discretion, however, a trial court may waive court costs upon a defendant's motion if the defendant is indigent. R.C. 2949.092 ; State v. Walker , 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, 2014 WL 5500257, ¶ 9. To demonstrate prejudice regarding counsel's failure to move for the waiver of court costs to satisfy his ineffective assistance of counsel claim, Jeffries must show that a reasonable probability exists that the trial court would have waived payment of the costs if such motion had been filed. State v. Graves , 8th Dist. Cuyahoga No. 103984, 2016-Ohio-7303, 2016 WL 5940208, ¶ 13, citing State v. Vanderhorst , 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, 2012 WL 2355612, ¶ 78 ; State v. Bonton , 8th Dist. Cuyahoga No. 102918, 2016-Ohio-700, 2016 WL 762688, ¶ 20.

{¶ 42} In State v. Gibson , 8th Dist. Cuyahoga No. 104368, 2017-Ohio-102, 2017 WL 123309, this court held that a prior finding by a trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion. Id. at ¶ 16. The court found that under such circumstances, counsel's failure to move for waiver of costs was deficient and prejudiced the defendant. This court applied Gibson recently in State v. Springer , 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861, 2017 WL 6055504.

{¶ 43} In this case, as in Gibson and Springer , the trial court found Jeffries to be indigent and appointed counsel for him. Under such circumstances, counsel's failure to move for a waiver of costs was deficient and prejudiced Jeffries. Accordingly, we vacate the costs and remand for a hearing regarding the imposition of costs. The fourth assignment of error is sustained in part.

E. Insufficient Evidence and Manifest Weight of the Evidence

{¶ 44} In his fifth assignment of error, Jeffries contends there was insufficient evidence to support his convictions for rape and kidnapping. In his sixth assignment of error, he asserts that his convictions are against the manifest weight of the evidence.

{¶ 45} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 46} A manifest weight challenge, on the other hand, questions whether the state met its burden of persuasion. State v. Hill , 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, 2013 WL 658172, ¶ 32. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 388, 678 N.E.2d 541.

{¶ 47} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight given to the evidence are primarily matters for the trier of fact to decide. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. Thus, an appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances where the evidence presented at trial weighs heavily against the conviction. Thompkins at 388, 678 N.E.2d 541.

{¶ 48} Although the concepts of the sufficiency of the evidence and weight of the evidence are different, a determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency.

State v. Buford , 8th Dist. Cuyahoga Nos. 97218 and 97529, 2012-Ohio-1948, 2012 WL 1566350, ¶ 20.

{¶ 49} Jeffries first challenges his conviction on Count 2, kidnapping in violation of R.C. 2905.01(A)(4), which provides that "no person, by force, threat, or deception, or in the case of a victim under the age of thirteen, by any means, shall * * * restrain the liberty of the other person * * * to engage in sexual activity * * * with the victim against the victim's will."

{¶ 50} Jeffries contends that his kidnapping conviction was against the manifest weight of the evidence and not supported by sufficient evidence because there was no evidence that D.S. was required to submit by physical force or the threat of physical force, that she ever rejected his advances or told him to stop, or that she was unable to get away. Thus, he asserts there was no evidence that she was restrained of her liberty.

{¶ 51} But D.S. testified that Jeffries laid on top of her when he raped her on her twelfth birthday. She testified further that she did not feel like she could leave or get away from Jeffries during this incident. This testimony is more than sufficient to demonstrate that Jeffries physically restrained D.S.'s liberty while he raped her.

{¶ 52} In any event, R.C. 2905.01(A)(4) does not require that the state demonstrate that the defendant used physical force to restrain the liberty of a child under the age of 13. Rather, the statute provides that the state need only show that the child's liberty was restrained "by any means."

{¶ 53} The Ohio Supreme Court has recognized that "[t]he youth and vulnerability of children, coupled with the power inherent in a parent's position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser's purpose." State v. Eskridge , 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988). Likewise, this court has specifically held in relation to kidnapping that " 'a child's liberty may be restrained through the inherent social/psychological pressures that accompany' " an adult-child familial relationship. State v. Zimmer , 8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, 2017 WL 2691323, ¶ 15, quoting State v. Weems , 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, 2016 WL 763101, ¶ 25. See also State v. Diaz , 2016-Ohio-5523, 69 N.E.3d 1182 (8th Dist.).

{¶ 54} Even assuming for argument's sake that Jeffries did not physically threaten D.S. with respect to the rape on her twelfth birthday, she testified that she was fearful she would be sent back to foster care if she refused Jeffries's advances. This testimony, coupled with D.S.'s age, her testimony that she considered Jeffries to be her father and called him "Dad," and Jeffries's acknowledgment that he considered D.S. to be his child and that he helped care for and discipline her, proved that Jeffries restrained D.S.'s liberty by psychological pressure inherent in his position as D.S.'s "father." Accordingly, his conviction for kidnapping is supported by sufficient evidence and not against the manifest weight of the evidence.

{¶ 55} Jeffries also contends that his conviction on Count 3, rape in violation of R.C. 2907.02(A)(2), was not supported by sufficient evidence and is against the manifest weight of the evidence. Under R.C. 2907.02(A)(2), "[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." For the same reasons argued with respect to his kidnapping conviction, Jeffries contends that there was no evidence that he compelled D.S. to submit by force or threat of force with respect to the rape.

{¶ 56} We disagree. The evidence demonstrated that D.S. awoke to find Jeffries on top of her, and that he then pulled her pajama pants and underwear off and inserted his penis in her vagina. D.S. testified that during this incident, she did not feel like she could leave and had no choice but to stay. We find this evidence sufficient to establish that Jeffries used physical force to rape D.S. And as discussed above, Jeffries's position as a father-figure to D.S. restrained her liberty through the psychological pressure he exerted as her "Dad." And despite Jeffries's argument otherwise, there is no requirement that to find the element of force, a rape victim must tell her rapist that she does not want the rape to happen.

{¶ 57} The jury did not lose its way in convicting Jeffries of kidnapping and rape, nor is this the exceptional case where the evidence weighs heavily against the convictions. The fifth and sixth assignments of error are overruled.

F. Testimony of a Witness Stricken

{¶ 58} During trial, D.S. testified that once when she was sitting on Jeffries's lap while naked, C.J., one of Jeffries's sons, walked into the living room and saw her and Jeffries. Before trial, C.J. told a social worker that he had seen Jeffries and D.S. in the living room engaged in sexual activity. However, when the state called C.J. to the stand, he gave nonresponsive testimony as to whether he had ever seen Jeffries and D.S. together. He also testified that he did not remember telling a social worker about an occasion when he came downstairs, even though Jeffries had told him not to, and saw Jeffries and D.S. engaged in sexual activity.

{¶ 59} The trial court struck C.J.'s testimony, finding that his testimony provided no relevant information. The trial court also found that although the state was surprised by C.J.'s testimony, it did not amount to affirmative damage to the state's case because the incident allegedly observed by C.J. did not occur on either December 23, 2011 or in March 2016, the dates charged in the indictment. Accordingly, the trial court held that under Evid.R. 607, the state was precluded from bringing out any prior inconsistent statements by C.J. Defense counsel did not object to the trial court's ruling, telling the court that she was not going to ask any questions of C.J. anyway.

{¶ 60} Evid.R. 607(A) prevents a party from impeaching its own witness unless the party is surprised by the testimony and the testimony is damaging. Jeffries agrees with the trial court's analysis that C.J.'s testimony, although a surprise to the state, was not damaging to the state's case because it was not connected to the two incidents charged in the indictment. Thus, he asserts that the trial court properly ruled that the state could not question C.J. regarding his prior inconsistent statements.

{¶ 61} Nevertheless, in his seventh assignment of error, Jeffries argues that the trial court erred in striking C.J.'s testimony because it directly refuted D.S.'s testimony that C.J. had seen her and Jeffries together and, thus, was relevant to D.S.'s credibility. Because Jeffries did not object to the trial court's ruling striking C.J.'s testimony, he has waived all but plain error, which again we do not find.

{¶ 62} Our review of the record demonstrates that C.J.'s testimony did not refute D.S.'s testimony that C.J. had once seen her and Jeffries engaging in sexual activity. The record reflects that when he was asked if he remembered ever seeing his father and D.S. together, C.J. first replied, "no, not really," and then when asked what he meant by "not really," said, "no, I mean, I mean, all-used to, I mean-," and then "I mean, all of us." When asked if he remembered a time when he wanted to go downstairs but Jeffries told him he could not, C.J. replied "no." Finally, when he was asked if he remembered telling a social worker about that incident, C.J. said he could not remember.

{¶ 63} We find no plain error in the trial court's judgment to exclude this testimony. Because C.J.'s testimony was nonresponsive, it did not refute D.S.'s testimony that C.J. had once seen her and Jeffries together and thus was not relevant to her credibility.

{¶ 64} Jeffries also contends that his counsel was ineffective for not objecting to the trial court's ruling excluding C.J.'s testimony. We disagree. In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel's performance. Strickland , 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Furthermore, trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Gooden , 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, 2007 WL 1447712, ¶ 38, citing State v. Clayton , 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

{¶ 65} Here, counsel's failure to object to the trial court's ruling was clearly a strategic decision. Had the trial court allowed C.J.'s testimony, the state would have used his prior statements to the social worker to impeach him, testimony that clearly would have been detrimental to Jeffries's defense that he never sexually abused D.S. In fact, counsel told the court she had not planned to ask C.J. any questions, presumably to avoid opening the door to any damaging testimony. It is apparent that counsel's decision not to object to the court's ruling was a matter of trial strategy to which we must afford great deference. Accordingly, we find no ineffective assistance of counsel, and the seventh assignment of error is overruled.

{¶ 66} Judgment affirmed in part; reversed in part; and remanded for a hearing regarding the imposition of court costs.

ANITA LASTER MAYS, J., and LARRY A. JONES, SR., J., CONCUR

      Counts 1 and 2 of the indictment originally charged that the offenses occurred on December 23, 2012. Both the prosecutor and defense counsel agreed on the record that the correct date of the alleged offense was December 23, 2011, and informed the trial court that the indictment should be so amended. Although the trial court never journalized the amendment, it is clear that Counts 1 and 2 were tried with the amended date. Jeffries does not raise any argument on appeal that he was prejudiced by the amendment.

      For purposes of R.C. 2905.01, "harm" includes both physical and psychological harm. State v. Mohamed , 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 14.


author: Hoffman, J. Delaney, P.J., dissenting Delaney, P.J., dissenting.

text:
    Patti A. ZIFER fka Huffman, Plaintiff-Appellant v. Steven J. HUFFMAN, Defendant-Appellee
    No. 2017 AP 06 0017
    Court of Appeals of Ohio, Fifth District, Tuscarawas County.
    DATE OF JUDGMENT ENTRY: January 24, 2018
    JOSEPH I. TRIPODI, 114 East High Ave., New Philadelphia, OH 44663, For Plaintiff-Appellant
    TRAVIS COLLINS, 105 Jamison Ave., P.O. Box 271, Cadiz, OH 43907, For Defendant-Appellee
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
   Hoffman, J.

{¶ 1} Plaintiff-Appellant Patti A. Zifer fka Huffman appeals the May 17, 2017 judgment entry of the Tuscarawas County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Plaintiff-Appellant Patti A. Zifer fka Huffman filed a complaint for divorce with the Tuscarawas County Court of Common Pleas against her husband, Defendant-Appellee Steven J. Huffman.

{¶ 3} Thereafter Zifer and Huffman were granted a Decree of Divorce and on May 16, 2014, the trial court issued an agreed judgment entry regarding spousal support:

1. Spousal Support: Steven J. Huffman shall pay as and for spousal support to Patti A. Huffman the sum of $1,000.00 per month, plus processing fee, for a period of seven years and three months beginning June 1, 2014. The spousal support shall continue until Patti A. Huffman (nka Zifer) remarries, dies, or co-habitates with a non-relative male. The Court shall not have continuing jurisdiction over the issue of the amount of spousal support or the years of payment.

{¶ 4} On February 12, 2016, the trial court filed a judgment entry ordering an initial continue to seek work order. Based on information furnished by the Tuscarawas County Child Support Enforcement Agency, the trial court determined Huffman was unemployed and had no income. It further determined Huffman was able to engage in employment. Pursuant to R.C. 3121.03(D)(1), the trial court ordered Huffman to seek employment at 30 places per month and provide written proof to Tuscarawas County CSEA.

{¶ 5} On January 4, 2017, Zifer filed a motion to show cause with the trial court alleging Huffman failed to pay spousal support pursuant to the terms of the May 16, 2014 agreed judgment entry. According to the Tuscarawas County CSEA records, Huffman was $5,744.00 in arrears as of November 30, 2016.

{¶ 6} The matter was set for a hearing before the magistrate on February 27, 2017. Zifer presented exhibits from the Tuscarawas County CSEA that demonstrated as of February 2017, Huffman was in arrears in the amount of $7,542.00. Zifer requested the trial court find Huffman in contempt of the May 16, 2014 agreed judgment entry, order Huffman to pay the arrearage within 30 days, and impose a 30-day term of jail if Huffman did not remedy the arrearage.

{¶ 7} Huffman testified he was not contesting that he was delinquent in his spousal support payments. He argued he was not in willful contempt of the trial court's orders to pay spousal support because he had no income due to his unemployment. Huffman has been a licensed pharmacist since 1984. (T. 17). At the time of the parties' divorce, Huffman was employed at CVS Pharmacy earning $120,000 per year. In prior years, his taxable earnings were $128,000.00 and $110,679.00. (T. 17).

{¶ 8} On March 6, 2015, the Ohio State Board of Pharmacy found Huffman improperly dispensed prescription medicine in violation of the Ohio Revised Code. The Board imposed a monetary penalty, required him to obtain additional continuing pharmacy education, and prohibited Huffman from filling prescriptions for self and family members. In October 2015, CVS terminated Huffman's employment because Huffman failed to properly document an error when filling a prescription.

{¶ 9} Huffman argued that based on the Ohio State Board of Pharmacy Order and his termination from CVS, he was unable to find full-time employment as a pharmacist. Huffman testified he was current on his spousal support until he lost his job. (T. 10). After his termination from CVS, Huffman stated he continued to make spousal support payments using his retirement fund and taxes. (T. 13). He was not aware when he started to fall behind on his spousal support payments. (T. 13). In 2016, his taxable earnings were approximately $20,000.00. (T. 16).

{¶ 10} After Huffman was terminated from CVS, he received unemployment benefits. He was not aware if spousal support was paid out of the benefits. (T. 18). As part of unemployment, he had to apply for at least two jobs a week for approximately eighteen months. (T. 14). He testified he applied for two jobs in pharmacy every week, but he just didn't get any work. (T. 14). He was hired by a staffing service and applied to a position as a pharmacist but he was not hired based on the background check. (T. 14). In January 2017, he started working as an occasional pharmacist at a local drug store earning $50.00 per hour. (T. 15). He testified he recently earned $650.00 from this position and paid Zifer $250.00 from his paycheck. (T. 14). Huffman testified he was also working in a manual labor job earning minimum wage. (T. 13). Huffman applied for a license transfer to West Virginia to work with the West Virginia University of Medicine. (T. 19). He stated he did not have income to make his house payment and meet his spousal support obligation. (T. 14).

{¶ 11} On March 22, 2017, the magistrate issued her recommendation that Huffman was in contempt of the May 16, 2014 agreed judgment entry for his failure to pay spousal support. She determined the evidence demonstrated Huffman was severely underemployed. The magistrate recommended that Huffman be sentenced to 30 days in jail, which would be suspended if Huffman complied with the purge conditions. As purge conditions, the magistrate recommended that Huffman seek work at 30 places of businesses per month and should return work seeking forms to the Tuscarawas County CSEA. He should also pay a minimum $50.00 per month towards his spousal support. If Huffman failed to meet the purge conditions, Zifer was to file a motion to impose jail sentence.

{¶ 12} Zifer and Huffman filed objections to the magistrate's decision. The trial court held an oral hearing on the parties' objections. On May 17, 2017, the trial court issued its judgment entry overruling Zifer's objections and sustaining Huffman's objections to the magistrate's decision to find Huffman in contempt. The trial court found Zifer did not demonstrate by clear and convincing evidence that Huffman intentionally and willfully violated the May 16, 2014 agreed judgment entry to pay spousal support. The trial court stated while it was clear Huffman did not pay the agreed spousal support, his failure to pay resulted from the "unfortunate" loss of employment by Defendant as a pharmacist and the resulting drastic elimination of annual income has prevented him from complying with the Court Orders. (Judgment Entry, May 17, 2017). The trial court found Huffman made reasonable efforts to find employment in the pharmaceutical field, but had "simply been unsuccessful due to no fault of the Defendant or a lack of effort on his part to become re-employed in that field." (Judgment Entry, May 17, 2017).

{¶ 13} The trial court awarded Zifer a judgment in the amount of $7,542.00, the amount of spousal support in arrearage from January 31, 2017, for Zifer to collect. The trial court concluded:

* * * going forward this Court does not have legal authority to modify the terms and conditions of spousal support agreed upon by the parties * * *. Consequently, should the Plaintiff, in the future, believe that the Defendant has intentionally and willfully disregarded the orders of the Court relative to the payment of spousal support and the [sic] he has the economic/financial ability to comply with those orders, her only remedy would be to file a novel Motion seeking Indirect Civil Contempt of Court Sanctions against the Defendant for the alleged Indirect Civil Contempt conduct and prove it by clear and convincing evidence.

(Judgment Entry, May 17, 2017).

{¶ 14} It is from this judgment entry Zifer now appeals.

ASSIGNMENTS OF ERROR

{¶ 15} Zifer raises three Assignments of Error:

{¶ 16} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO APPLY O.R.C. 2705.031(B) AND (E) TO THE FACTS OF THE CASE.

{¶ 17} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT APPELLEE'S CONTEMPT SHOULD BE EXCUSED BECAUSE OF APPELLEE'S 'UNFORTUNATE LOSS OF EMPLOYMENT' PREVENTED HIM FROM COMPLYING WITH THE SPOUSAL SUPPORT ORDER.

{¶ 18} "III. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A JUDGMENT AGAINST APPELLEE, A REMEDY NOT REQUESTED BY EITHER PARTY BUT WHICH REMEDY INCREASES THE COSTS OF COLLECTION TO THE INJURED PARTY AND REMOVES CSEA FROM COLLECTION OF AMOUNTS DUE OBLIGEE."

ANALYSIS

{¶ 19} Zifer argues in her three Assignments of Error that the trial court abused its discretion when it overruled the magistrate's decision and found Huffman was not in contempt of the May 16, 2014 agreed judgment entry to pay $1,000.00 in spousal support every month.

I. R.C. 2705.031

{¶ 20} In Zifer's first Assignment of Error, Zifer contends the trial court did not apply R.C. 2705.031(B) or (E) to the facts of the case. R.C. 2705.031(B)(1) states, "Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support." R.C. 2705.031(E) states,

The imposition of any penalty for contempt under section 2705.05 of the Revised Code shall not eliminate any obligation of the accused to pay any past, present, or future support obligation or any obligation of the accused to comply with or refrain from interfering with the parenting time or visitation order or decree. The court shall have jurisdiction to make a finding of contempt for the failure to pay support and to impose the penalties set forth in section 2705.05 of the Revised Code in all cases in which past due support is at issue even if the duty to pay support has terminated, and shall have jurisdiction to make a finding of contempt for a failure to comply with, or an interference with, a parenting time or visitation order or decree and to impose the penalties set forth in section 2705.05 of the Revised Code in all cases in which the failure or interference is at issue even if the parenting time or visitation order or decree no longer is in effect.

{¶ 21} In this case, there was no dispute in the record that Zifer had a legal claim to spousal support pursuant to the May 16, 2014 agreed judgment entry. Neither Huffman nor the trial court stated Zifer could not initiate a contempt action under R.C. 2705.031(B) for Huffman's admitted failure to pay spousal support. R.C. 2705.031(E) gives the trial court jurisdiction to find Huffman in contempt for his failure to pay support and impose penalties. The language of the statute, however, does not require the trial court to find the non-paying spouse in contempt if a contempt action is initiated. A contempt action does not subsume a finding of contempt. It is the duty of the trial court to determine whether the party is in contempt and the issue in this case is whether Huffman was in contempt of the May 16, 2014 agreed judgment entry for his failure to pay spousal support. Zifer's first Assignment of Error is overruled.

II. Contempt

{¶ 22} Zifer's second Assignment of Error contends the trial court abused its discretion when it found Huffman was not in contempt for his failure to pay spousal support. A trial court's decision regarding contempt will not be reversed absent an abuse of discretion. Gunawardena v. Gunawardena , 5th Dist. Delaware No. 14 CAF 06 0035, 2015-Ohio-2566, 2015 WL 3935793, ¶ 1 citing Beltz v. Beltz , 5th Dist. Stark Nos. 2005CA00193, 2005CA00194, 2006-Ohio-1144, 2006 WL 587566. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 23} "Civil contempt is defined as that which exists in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein." Mohr v. Mohr , 5th Dist. Morgan No. 16AP0007, 2017-Ohio-1044, 2017 WL 1090984, ¶ 15 quoting McKinney v. McKinney , 5th Dist. Stark No. 2014CA00118, 2015-Ohio-1114, 2015 WL 1331886, ¶¶ 11-12 quoting Beach v. Beach , 99 Ohio App. 428, 431, 130 N.E.2d 164 (1955). "It is irrelevant that the transgressing party does not intend to violate the court order." Pedone v. Pedone , 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (8th Dist.1983). "If the dictates of the judicial decree are not followed, a contempt citation will result." Id.

{¶ 24} If a party makes a good faith effort to pay support, contempt is not justified. Slish v. Slish , 5th Dist. Stark No. 2011CA00080, 2012-Ohio-1517, 2012 WL 1139160, ¶ 28 citing Raleigh v. Hardy, 5th Dist. No. 08 CA 0140, 2009-Ohio-4829, 2009 WL 2933727, ¶ 47 citing Courtney v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3rd Dist.1984). The burden to show an inability to pay is on the party being held in contempt. Id. citing Farrell v. Farrell, 5th Dist. No. 2008-CA-0080, 2009-Ohio-1341, 2009 WL 765185, ¶ 15.

{¶ 25} The magistrate determined Huffman did not demonstrate he had made a good faith effort to pay support because she found him to be "severely underemployed." (Magistrate's Decision, Mar. 22, 2017). The magistrate concluded Huffman's inability to pay support was based on Huffman's own actions resulting in sanctions and termination. Since that time, Huffman stated he was unable to find employment as a full-time pharmacist. Upon its independent review of the record pursuant to the parties' objections, the trial court found that due to Huffman's "unfortunate loss of employment" and his inability to obtain employment through "no fault" of his own, Huffman demonstrated a good faith effort to pay and his inability to pay. (Judgment Entry, May 17, 2017).

{¶ 26} The trial court is required to conduct an independent review of a magistrate's decision. Lambert's Pop A Top, LLC v. Mills , 5th Dist. Stark No. 2017CA00092, 2017-Ohio-8073, 2017 WL 4423243.

{¶ 27} This court reviewed the meaning of "abuse of discretion" in State v. Firouzmandi , 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175, ¶¶ 54-55 :

This term however has been applied in a somewhat rote manner by the courts without analysis of the true purpose of the appellate court's role in the review of a trial court's discretionary powers. An excellent analysis of the misconception surrounding the concept of "abuse of discretion" was set forth by the Arizona Supreme Court sitting en banc: "[t]he phrase 'within the discretion of the trial court' is often used but the reason for that phrase being applied to certain issues is seldom examined. One of the primary reasons an issue is considered discretionary is that its resolution is based on factors which vary from case to case and which involve the balance of conflicting facts and equitable considerations. Walsh v. Centeio, 692 F.2d 1239, 1242 (9th Cir.1982). Thus, the phrase 'within the discretion of the trial court' does not mean that the court is free to reach any conclusion it wishes. It does mean that where there are opposing equitable or factual considerations, we will not substitute our judgment for that of the trial court". State v. Chapple (1983), 135 Ariz. 281, 296-97, 660 P.2d 1208, 1223-24. However, the Court explained, "[t]he term 'abuse of discretion' is unfortunate. In ordinary language, 'abuse' implies some form of corrupt practice, deceit or impropriety. Webster's Third New International Dictionary (1976). In this sense, the application of the word to the act of a trial judge who ruled in accordance with all the decided cases on the issue is inappropriate. However, in the legal context, the word 'abuse' in the phrase 'abuse of discretion' has been given a broader meaning. In the few cases that have attempted an analysis, the ordinary meaning of the word has been considered inappropriate and the phrase as a whole has been interpreted to apply where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. State ex rel. Fletcher v. District Court of Jefferson County, 213 Iowa 822, 831, 238 N.W. 290, 294 (1931). Similarly, a discretionary act which reaches an end or purpose not justified by, and clearly against, reason and evidence 'is an abuse.' Kinnear v. Dennis, 97 Okl. 206, 207, 223 P. 383, 384 (1924).
"The law would be better served if we were to apply a different term, but since most appellate judges suffer from misocainea, we will no doubt continue to use the phrase 'abuse of discretion.' Therefore, we should keep some operative principles in mind. Something is discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations which vary from case to case and which can be better determined or resolved by the trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and who can better assess the impact of what occurs before him. Walsh v. Centeio, supra. Where a decision is made on that basis, it is truly discretionary and we will not substitute our judgment for that of the trial judge; we will not second-guess. Where, however, the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations, the resolution of the question is one of law or logic. Then it is our final responsibility to determine law and policy and it becomes our duty to 'look over the shoulder' of the trial judge and, if appropriate, substitute our judgment for his or hers. This process is sometimes, unfortunately, described as a determination that the trial judge has 'abused his discretion ...' " Id. at n. 8 ; State v. Garza (1998), 192 Ariz. 171, 175-76, 962 P.2d 898, 902.

{¶ 28} With those words as guidance, we review the trial court's decision to overrule the magistrate's decision and to find that Huffman was not in contempt of the May 16, 2014 agreed judgment entry.

{¶ 29} The magistrate held an evidentiary hearing on Zifer's contempt action where Huffman testified. In its judgment entry, the trial court stated it reviewed the judgment entries related to the parties' divorce, the parties' objections, the transcript of the magistrate's hearing, and held an oral hearing on the parties' objections. Upon the magistrate's consideration of the evidence, the magistrate found Huffman was in contempt of the May 16, 2014 agreed judgment entry because Huffman did not demonstrate a good faith effort to pay the support and his inability to pay support because of Huffman's own actions. Upon the trial court's consideration of the record, it found Huffman was not in contempt because he demonstrated a good faith effort to pay support and Huffman was unable to pay support based on actions outside of Huffman's control.

{¶ 30} It has been held that in order for the obligor to successfully raise the claim of inability to pay spousal support, he must prove he did not voluntarily create the disability for avoiding payment. Boddie v. Boddie , 2nd Dist. Montgomery No. CA 9637, 1986 WL 8525 (Aug. 1, 1986), *2 citing Bingmer v. Bingmer , 72 Ohio App. 522, 53 N.E.2d 525 (2nd. Dist. 1943). The obligor's inability must be real and not self-imposed. Boddie, supra citing State v. Cook , 66 Ohio St. 566, 64 N.E. 567 (1902). "Cases are not always 'clear-cut' upon the distinction between whether inability to pay is voluntary or involuntary." Bostick v. Bostick , 2nd Dist. Champaign No. 2015-CA-13, 2016-Ohio-3354, 2016 WL 3216748, ¶ 11 quoting. A defendant cannot shield himself from a finding of contempt by making mere allegations he is unable to pay, without any supporting evidentiary material. Haas v. Myers , 5th Dist. Stark No. 2015CA00217, 2016-Ohio-3316, 2016 WL 3184918, ¶ 37 citing Walters v. Murphy , 5th Dist. Ashland No. 2006-COA-030, 2007-Ohio-3426, 2007 WL 1934730, ¶ 9, citing Spring v. Spring , 5th Dist. Tuscarawas No. 95AP080058, 1996 WL 243878 (April 17, 1996). At a minimum, a defendant should present evidence he had made a good-faith effort to comply with the court's order. Id. , citing Stocker v. Couts , Tuscarawas App. No. 94AP070046, 1995 WL 347851 (March 13, 1995). A review of the case law as to contempt cases, and specifically the issue of inability to pay, shows the resolution of the case turns on the evidence presented.

{¶ 31} The issue in this case is whether Huffman met his burden to demonstrate the inability to pay. The magistrate and trial court reached different conclusions as to this issue. This case may be an example that sometimes there is no clear cut distinction whether the inability to pay is voluntary or involuntary.

{¶ 32} The evidence demonstrated Huffman's income prior to 2015, was over $100,000. He had been sanctioned for a past pharmacy violation in March, 2015. His employment with CVS was terminated for a subsequent internal violation. His license to work as a pharmacist, however, remained in place.

{¶ 33} The circumstances surrounding that later internal violation which precipitated his termination from CVS are important when analyzing the trial court's determination Huffman suffered an "unfortunate" loss of employment. Huffman explained he had misfilled a prescription for Percocet calling for seven and one-half milligrams with only five milligrams of Percocet. After the patient [customer] left, he caught his error and called the patient to notify him. The patient came back and Huffman changed the prescription to the correct strength. However, he failed to fill out a report documenting the misfilled prescription and was let go by CVS as a result.

{¶ 34} While Huffman's decision to not complete a misfill report was voluntary, it was the result of his negligence, not an intentional act. He did not fail to file the report intending to create a reason to be terminated. Huffman did not voluntarily create the event triggering his termination in order to avoid payment of his spousal support obligation. We find, the trial court's characterization of the incident as "unfortunate" does not demonstrate an abuse of discretion.

{¶ 35} The trial court further found Huffman made reasonable efforts to become re-employed in the field of pharmacy. In order to receive his unemployment benefits, Huffman was required to seek at least two jobs in pharmacy every week. Huffman testified he started working as an occasional pharmacist at a local drug store earning $50.00 per hour. He had earned $650.00 from that position and paid Zifer $250.00 from his paycheck. He testified he also was working in a manual labor job earning minimum wage. He had applied for a license transfer to West Virginia to work with the West Virginia University of Medicine.

{¶ 36} After his termination from CVS, Huffman continued to pay spousal support from his retirement benefits and his tax refund, but testified he eventually ran out of money. He was behind on his house mortgage and facing foreclosure.

{¶ 37} We find the trial court did not abuse its discretion in finding Huffman had an inability to pay the spousal support order, even though he was underemployed. We further find the trial court did not abuse its decision in overturning the magistrate's recommendation of a finding Huffman was in contempt.

{¶ 38} Appellant's second assignment of error is overruled.

III.

{¶ 39} Herein, Zifer asserts the trial court committed error in reducing the arrearages owed by Huffman to judgment. We disagree.

{¶ 40} Zifer maintains Tuscarawas County CSEA was providing collection services to Zifer pursuant to law. The only statutory citation proffered by Zifer is R.C. 3125.36. That section involves child support orders, not spousal support orders.

{¶ 41} A trial court has the power to reduce spousal support arrearages to a lump sum judgment. Davis v. Davis , (1983), 12 Ohio App.3d 38, 40, 465 N.E.2d 917. CSEA can withhold wages to enforce a lump sum judgment for arrearages. Boyer v. Boyer , 9th Dist. Medina Co. No. 03CA0137-M, 2004-Ohio-5450, 2004 WL 2293197.

{¶ 42} Contrary to Zifer's interpretation of the trial court's order determining the arrearage amount, we do not find it strips CSEA of its authority to continue to collect on the arrearages and/or any further spousal support obligations of Huffman. The recognition of Zifer's ability to pursue execution is not the equivalent of withdrawing CSEA's authority to continue to collect he same.

{¶ 43} Appellant's third assignment of error is overruled.

{¶ 44} The judgment of the Tuscarawas County Court of Common Pleas is affirmed.

Gwin, J., concurs,

Delaney, P.J., dissenting

Delaney, P.J., dissenting.

{¶ 45} I concur in the majority's disposition of Zifer's first assignment of error but respectfully dissent from the majority's disposition of Zifer's second assignment of error. For the following reasons, I would reverse the trial court's finding Huffman was not in contempt for his failure to pay spousal support.

{¶ 46} Huffman has been employed as a licensed pharmacist in the State of Ohio for over 33 years, routinely earning over $100,000 a year. The issue in this case is whether Huffman has met his burden to demonstrate his inability to pay his ongoing spousal support obligation.

{¶ 47} The magistrate, who oversaw the hearing and took testimony on this matter, issued a finding that Huffman was "severely underemployed." Nevertheless, the trial court found Huffman had been unsuccessful in becoming re-employed in the pharmaceutical field "due to no fault of the Defendant or lack of effort on his part to become re-employed in the field".

{¶ 48} First, the evidence demonstrated Huffman's income was routinely over $100,000. Due to his voluntary actions, he was sanctioned for past pharmacy violations and his employment was terminated for a later internal violation. His license to work as a pharmacist, however, remained in place. On February 12, 2016, the trial court filed a judgment entry ordering an initial continuing seek work order. Based on information furnished by the Tuscarawas County Child Support Enforcement Agency, the trial court determined Huffman was unemployed and had no income. It further determined Huffman was able to engage in employment. Pursuant to R.C. 3121.03(D)(1), the trial court ordered Huffman to seek employment at 30 places per month and provide written proof to Tuscarawas County CSEA. At the contempt hearing, Huffman presented no evidence as to his compliance with that order.

{¶ 49} In Katchmar v. Katchmar , 5th Dist. Fairfield No. 16-CA-36, 2017-Ohio-2974, 2017 WL 2265548, this court reviewed a spousal support order where the trial court imputed income to an appellant based on his earning ability. The appellant had been employed as an executive in security management when he was laid off. At the time of his termination, the appellant was earning over $200,000. Id. at ¶ 6. When determining spousal support, the appellant argued he could not find employment as an executive in security management. He stated his intent was to be self-employed as a massage therapist and expected to earn $40,000 per year. Id. ¶ 12. The trial court found the appellant to be underemployed and imputed income to the appellant in the amount of $75,000 based on his managerial background and transferrable skills. Id. at ¶ 17.

{¶ 50} On appeal, we affirmed the decision of the trial court. We found that based on the appellant's earning history, managerial background, and the transferrable skills the appellant acquired during his executive-level employment, the trial court correctly found the appellant was capable of earning more than $40,000 per year. Id. at ¶ 30.

{¶ 51} While the present case did not ask the trial court to consider imputation of income, the issue of Huffman's ability to find employment was called into question. The magistrate found that Huffman was severely underemployed. Huffman had been working as a pharmacist since 1984. In prior years, he earned over $100,000 per year. At the time of the divorce, Huffman was earning $120,000 as year as a pharmacist. The Ohio State Board of Pharmacy sanctioned Huffman, but Huffman retained his license and continued to work for CVS earning $120,000. As in Katchmar , supra, we find based on Huffman's earning history and transferrable skills, Huffman did not demonstrate he made reasonable efforts to find employment.

{¶ 52} Second, Huffman stated he paid some spousal support from his retirement benefits. Huffman testified he had worked as a pharmacist since 1984 and earned over $100,000 in income. He provided no testimony why he was able to pay some spousal support from his retirement benefits and could no longer use that resource to meet his spousal support obligations.

{¶ 53} Finally, Huffman's testimony showed he earned unemployment benefits, but he made no effort to determine if his spousal support obligation was paid from those benefits.

{¶ 54} I would find the trial court abused its discretion when it found Huffman had made reasonable efforts to find employment and was unsuccessful due to no fault of his own. First, if Huffman was unemployed due to sanctions and terminations, those precipitating actions were within his control. Second, based on Huffman's earning history and transferrable skills, I would find Huffman had not made reasonable efforts to find employment. Third, Huffman testified he had financial resources to pay some spousal support but did not explain why those resources were no longer available to him.

{¶ 55} Accordingly, I would sustain Zifer's second Assignment of Error and reverse the May 17, 2017 judgment entry and the remand for further proceedings. Lastly, I would find Zifer's third Assignment of Error moot based upon the reversal of the second Assignment of Error.

      A trial court need not defer to the magistrate's determinations regarding witness credibility. Bressler v. Nunemaker , 5th Dist., Licking App. No. 17CA06, 2017-Ohio-5804, 2017 WL 2964199.

      Appellant's brief likewise describes Huffman's actions as negligence. (Appellant's brief at p.7).