Jackson-Essiet v. Essiet

[Cite as Jackson-Essiet v. Essiet, 2026-Ohio-3711.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) PIA JACKSON-ESSIET C.A. No. 31730 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE B. NELSON ESSIET COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. DR-2021-10-3008 DECISION AND JOURNAL ENTRY Dated: September 23, 2026 FLAGG LANZINGER, Judge. {¶1} Appellant-Defendant B. Nelson Essiet appeals the judgment of the Summit County Court of Common Pleas Domestic Relations Division finding him in contempt of court, denying his motion to modify or terminate his spousal support obligation, and ordering him to pay attorney fees. We affirm. I. {¶2} Nelson and Appellee-Plaintiff Pia Jackson-Essiet were divorced on February 6, 2023, after nearly forty-one years of marriage. The trial court’s judgment entry decree provided for the division of the parties’ assets and liabilities and a support obligation from Nelson to Pia. The decree required Nelson to assign his right, title, and interest in a certain John Hancock life insurance policy to Pia and to select a new trustee by agreement of the parties. The decree also required Nelson to obtain and maintain an additional life insurance policy naming Pia as an  2 irrevocable beneficiary. Nelson was required to provide proof of said insurance policy within 30 days of the execution of the separation agreement. {¶3} Several months later, Pia filed two motions requesting the trial court find Nelson in contempt of court for failing to pay his spousal support obligation, failing to process the appointment of a new successor trustee, and failing to provide proof that he designated Pia an irrevocable beneficiary on an additional life insurance policy. Pia also requested attorney fees. Nelson subsequently filed a motion to modify or terminate his spousal support obligation based upon a change in circumstances. Nelson asserted his age and health forced him to retire and that he was no longer able to pay his support obligation. The matter came before the magistrate for a hearing in May 2024. The magistrate heard testimony from Nelson, Pia, a vocational expert, and the parties’ financial advisor. {¶4} Following the hearing, the magistrate filed a decision denying Nelson’s motion to modify his spousal support and granting Pia’s motion for contempt. The magistrate found no substantial change in circumstances had occurred to warrant a modification of spousal support. The magistrate also found Nelson in contempt for (1) failure to pay spousal support for nine months, (2) failure to obtain an insurance policy naming Pia as the beneficiary, and (3) failure to assign his right, title, and interest in a different insurance policy to Pia and/or designate a new trustee related to that insurance policy. The magistrate sentenced Nelson to 15 days in the Summit County Jail. The magistrate suspended the jail sentence and ordered that Nelson could purge his contempt by (1) paying the total spousal support amount owed in three monthly installments, (2) effectuating the forms necessary to name Pia the irrevocable beneficiary of a life insurance policy in a certain amount within 30 days, (3) effectuating a conversion option for the John Hancock life insurance policy and assigning his right, title, and interest to Pia and designating the parties’  3 daughter as the successor trustee within 30 days, and (4) making his future monthly spousal support payments through a withholding order. The magistrate also found that Pia was entitled to reimbursement of her attorney fees and deposition costs related to her motions. The magistrate set the matter for a purge hearing. {¶5} The trial court adopted the magistrate’s decision the same day it was filed. Nelson filed timely objections and supplemented his objections after the court reporter filed the transcript of the hearing. Pia filed a response, and the trial court overruled Nelson’s objections. {¶6} Nelson appeals, raising four assignments of error. II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO MODIFY OR TERMINATE SPOUSAL SUPPORT. {¶7} In his first assignment of error, Nelson contends the trial court abused its discretion when it denied his motion to modify or terminate his spousal support obligation. We disagree. {¶8} “This Court reviews a trial court’s action with respect to a magistrate’s decision for an abuse of discretion.” Tabatabai v. Tabatabai, 2009-Ohio-3139, ¶ 17 (9th Dist.). “In so doing, we consider the trial court’s action with reference to the nature of the underlying matter.” Id. at ¶ 18. “This Court reviews the domestic relations court’s decision regarding the modification of spousal support for an abuse of discretion.” Kelly v. Kelly, 2019-Ohio-4723, ¶ 10 (9th Dist.), quoting Wuscher v. Wuscher, 2014-Ohio-377, ¶ 9 (9th Dist.). Under an abuse of discretion standard, we must determine whether the trial court’s decision was arbitrary, unreasonable, or unconscionable rather than merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).  4 {¶9} R.C. 3105.18 governs the modification of spousal support. Pursuant to R.C. 3105.18(E), a trial court does not have jurisdiction to modify a spousal support award unless (1) the circumstances of either party have changed, and (2) the language of divorce decree permits a modification. Pursuant to R.C. 3105.18(F)(1), [A] change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply: (a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate. (b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable. “[I]f the court finds a change in circumstances, it may then determine the appropriateness and reasonableness of the existing award.” (Internal quotations and citation omitted.) Alkire v. Alkire, 2021-Ohio-186, at ¶ 9 (9th Dist.), citing R.C. 3105.18(C)(1). {¶10} In his motion, Nelson asserted that modification or termination of his support obligation was warranted because his age and health had forced him to retire. “Retirement, whether voluntary or involuntary, may constitute a substantial change in circumstances unless it was undertaken early with the intention of circumventing spousal support obligations.” DiPalma v. Whipple, 2023-Ohio-1023, ¶ 12 (9th Dist.), citing Stevens v. Stevens, 2018-Ohio-2662, ¶ 23 (2d Dist.). “If the spouse retires with the intent of defeating the spousal [support] award, the retirement is considered ‘voluntary underemployment,’ and the spouse’s pre-retirement income is attributed to him.” Loewe v. Loewe, 2024-Ohio-323, ¶ 16 (9th Dist.), quoting Koch v. Koch, 2004-Ohio- 7192, ¶ 21 (9th Dist.). “To determine if a spouse has retired to circumvent spousal support obligations, trial courts consider multiple factors including age at the time of retirement, ‘age at  5 the time of divorce; the time between the spousal support award and the retirement * * *[;] medical reasons for retiring; the economic justifications for retiring * * *; the validity of concerns over continued employment; and the assets from which spousal support could continue.’” (Alterations in original.) Loewe at ¶ 18, quoting Manley v. Manley, 2020-Ohio-1365, ¶ 31 (7th Dist.). {¶11} In denying Nelson’s motion to modify, the magistrate appears to have concluded that Nelson was voluntarily underemployed. The magistrate stated he did “NOT find that a change of circumstances has occurred for [Nelson’s] voluntary OR involuntary retirement or underemployment that was of no fault of his own.” (Emphasis in original.) In making this determination, the magistrate found Nelson had not shown by a preponderance of the evidence that his health had changed since the divorce and that Nelson’s age and “the parties’ respective income, assets, and expenses [had] not dramatically changed since the time of the divorce.” Finally, the magistrate found that Nelson “did not provide credible evidence of valid concerns of continued employment or economic justification for retiring/semi-retiring.” {¶12} Nelson objected to the magistrate’s denial of his motion to modify on the basis that the evidence showed a change in circumstances because (1) Nelson was 68 years old and had reached his full social security retirement age of 66 and 4 months and no evidence was presented to show Nelson had retired in an effort to circumvent spousal support, (2) Nelson’s income had decreased 68% the year after the initial spousal support obligation was calculated and had decreased even further the following year, (3) the parties’ respective standards of living had changed, (4) Nelson’s declining health affected his ability to maintain full-time employment, and (5) Pia’s income had increased. {¶13} Pia argued in her response to Nelson’s objections that the evidence showed Nelson’s purported retirement was voluntary and calculated to avoid his spousal support  6 obligation. Pia asserted (1) Nelson voluntarily left multiple positions despite an ability to work, (2) Nelson did not support his health claims with medical documentation, (3) Nelson did not provide any credible evidence of an inability to work, (4) expert testimony established that Nelson had the ability to earn $438,000 to $450,000 per year, and (5) Nelson maintained substantial assets capable of meeting his support obligation. {¶14} In overruling Nelson’s objections, the trial court determined that any change in circumstances was not significant because Nelson was still earning a significant income and had access to over one million dollars in liquid assets. On appeal, Nelson contends the trial court abused its discretion when it found that no substantial change in circumstances occurred, raising the same arguments he raised in his objections. The parties do not dispute on appeal that the trial court retained jurisdiction to modify and/or terminate the spousal support obligation. {¶15} Upon review of the record, we cannot say that the trial court abused its discretion when it concluded there was not a substantial change in circumstances. The evidence presented at the hearing indicates that during the parties’ marriage, Nelson was employed as a radiologist at Akron Radiology for more than 21 years. Nelson testified that he submitted a voluntary notice of his intent to retire from Akron Radiology and did so at the end of 2022. Nelson then took a position as a radiologist in a different practice in January 2023. Nelson testified that at the time, he intended to continue to work as a radiologist in a “sort of pseudo-retirement job” with fewer hours. The decree of divorce—filed the following month—expressly calculated the Level I spousal support based upon Nelson’s average income for 2021 and 2022 of $553,462.00 and Pia’s income of $0.00. Pia testified that she had been a stay-at-home mom and not earned an income from employment since 1993.  7 {¶16} Regarding Nelson’s employment after the decree of divorce was filed, Nelson testified that he resigned from the new practice in May 2023 because the standard of practice was lower than he anticipated. Nelson testified he would have made approximately $400,000 a year if he had continued at the practice. No documentary evidence was submitted at trial concerning Nelson’s income for 2023. Nelson testified he began working for Prosight Radiology in February 2024 on an as needed basis. At the time of the hearing, Nelson was still employed by Prosight Radiology. Nelson admitted he stopped paying his spousal support when he left the new practice but testified he submitted half of his earnings from Prosight Radiology to Pia. Nelson acknowledged he stopped paying his spousal support obligation after five months despite there being no court order modifying his obligation. {¶17} Nelson testified he continued to maintain active medical licenses in three different states. Nelson had not applied for social security retirement benefits nor taken any distributions from his retirement accounts. Nelson claimed his health caused him to work less hours. Nelson testified he was diagnosed with cervical neuropathy more than two decades prior to the divorce. Nelson did not support his claims with any medical documentation. Nelson also testified that he has been undergoing treatment since late January 2024 that had given him “significant relief” from his symptoms. {¶18} A vocational expert testified that a radiologist working in St. Louis, Missouri, where Nelson then resided, could earn a median income of $450,190.00 per year. However, the vocational expert also testified that the best indicator of Nelson’s earning ability was to look at his past employment where he made $550,000 a year as a radiologist in Akron, Ohio, where the median income for a radiologist is $438,990. The vocational expert testified that Nelson’s age  8 alone would not have a major impact on his earning ability because Nelson is highly-trained and highly-skilled with extensive experience in a niche area. {¶19} Pia testified she had been unemployed since 1993. During cross-examination, Nelson’s legal counsel questioned Pia regarding her 2023 tax filings, which indicated an income of approximately $100,000.00. Pia testified that the income on her tax filings reflected income from assets she retained in the divorce. The parties’ separation agreement equalized their retirement accounts, brokerage accounts, bank accounts, and health savings account. Nelson testified that he had not prepared his 2023 tax returns as of the date of the hearing. {¶20} A change in circumstances under R.C. 3105.18(F)(1) “includes, but is not limited to, any increase or involuntary decrease in the party’s wages . . . .” (Emphasis added.). Here, the trial court could have reasonably concluded that Nelson was not retired and that he was voluntarily underemployed. At the time of the hearing, Nelson admitted that he was still employed and that he maintained medical licenses in at least three different states. Nelson testified that his health prevented him from working long hours. However, only fifteen months passed between the filing of the decree of divorce and the date of the hearing on the motion to modify and Nelson did not point to any evidence that his health issues had worsened since the divorce. On the contrary, Nelson expressly testified that recent treatment had given him “significant relief” from his symptoms. Moreover, there is evidence in the record that Nelson voluntarily left his employment at both Akron Radiology and the subsequent practice. The trial court could have also reasonably concluded that Pia’s increased income listed on her 2023 tax returns was not a substantial change in circumstances because the listed income was the result of assets she received in the divorce, the parties’ financial assets were divided equally in the separation agreement, and Nelson had not provided his 2023 income tax forms.  9 {¶21} The trial court did not abuse its discretion when it denied Nelson’s motion to modify or terminate his spousal support obligation. Nelson’s first assignment of error is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT AND IN FAILING TO CONSIDER EVIDENCE CRITICAL TO APPELLANT’S DEFENSE OF THE SAME. {¶22} In his second assignment of error, Nelson contends the trial court abused its discretion when it found him in contempt of court. We disagree. {¶23} “This Court reviews a trial court’s action with respect to a magistrate’s decision for an abuse of discretion.” Tabatabai, 2009-Ohio-3139, at ¶ 17 (9th Dist.). “In so doing, we consider the trial court’s action with reference to the nature of the underlying matter.” Id. at ¶ 18. {¶24} “Contempt of court may be generally defined as disobedience of a court order or conduct that brings the administration of justice into disrespect or impedes a court’s ability to perform its functions.” Falah v. Falah, 2021-Ohio-4348, ¶ 30 (9th Dist.), citing Freeman v. Freeman, 2007-Ohio-6400, ¶ 45 (9th Dist.) and R.C. 2705.02. “To establish contempt, the moving party must ‘establish a valid court order, knowledge of the order by the defendant, and a violation of the order.’” Henry v. Henry, 2015-Ohio-4350, ¶ 12 (9th Dist.), quoting State v. Komadina, 2004-Ohio-4962, ¶ 11 (9th Dist.). Civil contempt requires proof by clear and convincing evidence. Zemla v. Zemla, 2012-Ohio-2829, ¶ 11 (9th Dist.). “Clear and convincing evidence is that measure or degree of proof which is more certain than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. “A prima facie case of contempt is established where the divorce decree is before the court along with  10 proof of the contemnor’s failure to comply therewith.” (Internal citations and quotations omitted.) Falah at ¶ 30. However, inability to pay is a defense in a contempt proceeding. Liming v. Damos, 2012-Ohio-4783, ¶ 20. The burden to prove an inability to pay is on the party subject to the contempt order. Id. Failure to pay spousal support {¶25} Here, the magistrate found Pia had met her burden of proof to show Nelson failed to comply with the decree of divorce by failing to pay nine months of spousal support. The magistrate then found that Nelson had failed to meet his burden to show an inability to comply. The magistrate noted that Nelson “had ample liquid assets at his disposal to pay his monthly spousal support obligation . . . .” Nelson objected, arguing he “had no resources other than his own property division from the divorce from which to pay support . . . .” The trial court concluded the magistrate did not err by considering Nelson’s assets and overruled the objection. {¶26} On appeal, Nelson does not dispute that he failed to pay his spousal support obligation to Pia. Instead, he asserts that he demonstrated an inability to pay and a good faith attempt to comply because he sent Pia half of his income. We disagree. Here, the trial court found that Nelson held $1,757,000 in a brokerage account and received approximately $712,000 in a retirement account from the divorce. Nelson admitted during cross-examination that he did not access these funds to pay his spousal support obligation. Under these circumstances, we cannot conclude that trial court abused its discretion when it concluded Nelson had failed to show he was unable to pay his spousal support obligation. See Musselman v. Musselman, 2004-Ohio-833, ¶ 22- 23 (9th Dist.) (noting that a failure to pay what one is capable of paying evidences the lack of a good faith effort to comply with a support order).  11 Failure to comply with insurance provisions {¶27} The magistrate also found Nelson was in contempt for (1) failing to assign his right, title, and interest to Pia on the John Hancock insurance policy, (2) failing to designate a new trustee on that policy, and (3) failing to obtain an additional life insurance policy designating Pia as an irrevocable beneficiary. In doing so, the magistrate also found Pia had met her burden to show that Nelson had failed to comply with the divorce decree, and that Nelson had failed to show he was unable to comply with the decree. The trial court adopted the magistrate’s decision and found Nelson in contempt. {¶28} On appeal, Nelson does not dispute that he failed to comply with the divorce decree regarding the insurance policies. Instead, he asserts that he demonstrated an impossibility of compliance with the order. However, Nelson did not object to the magistrate’s decision finding him in contempt for failure to comply with the life insurance provisions within the decree of divorce. “Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion . . . unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). The failure to specifically raise an argument in an objection to a magistrate’s decision results in forfeiture of that argument on appeal. Johns v. Johns, 2013-Ohio-557, ¶ 17 (9th Dist.). When a party fails to set forth a plain error argument in his merit brief, this Court will not create a plain error argument on his behalf. See Horak v. Decker, 2018-Ohio-3659, ¶ 29 (9th Dist.). {¶29} Nelson’s second assignment of error is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUING UNREASONABLE PURGE CONDITIONS.  12 {¶30} In his third assignment of error, Nelson contends the trial court abused its discretion by imposing unreasonable purge conditions. For the reasons that follow, we overrule this assignment of error. {¶31} “One charged and found guilty of civil contempt must be allowed to purge him/herself of the contempt by showing compliance with the court’s order he/she is charged with violating.” Edminister v. Edminister, 2011-Ohio-1899, ¶ 9 (9th Dist.). “A civil contempt sanction is reviewed for an abuse of discretion.” State ex rel. Yost v. Crossridge, Inc., 2022-Ohio-1455, ¶ 39 (7th Dist.). “A trial court abuses its discretion when it orders conditions for purging that are unreasonable or impossible for the contemnor to meet.” Gray v. Gray, 2025-Ohio-2311, ¶ 24 (9th Dist.), quoting Ward v. Smith, 2024-Ohio-1682, ¶ 17 (5th Dist.). {¶32} The trial court found Nelson in contempt for (1) failure to pay spousal support for nine months, (2) failure to obtain an insurance policy naming Pia as the beneficiary, and (3) failure to assign his right, title, and interest in a different insurance policy to Pia and/or designate a new trustee related to that insurance policy. The trial court ordered that Nelson could purge the contempt by (1) Paying the total judgment amount of spousal support owed in three monthly installments of $47,406.03, (2) effectuating the forms necessary to obtain and name Pia the irrevocable beneficiary of a life insurance policy within 30 days, (3) effectuating the conversion option for a certain life insurance policy and assigning his right, title, and interest to Pia and naming the parties’ daughter as the designated successor trustee within 30 days, and (4) making all future monthly spousal support payments and doing so through a Summit County CSEA withholding order. {¶33} On appeal, Nelson contends the amount Nelson was required to pay is unreasonable because it exceeds his income. Nelson also argues that the purge condition requiring him to obtain  13 a life insurance policy was unreasonable because he had testified that he was not able to comply with that provision of the divorce decree. However, Nelson did not object to the magistrate’s purge conditions on either basis. See Civ.R. 53(D)(3)(b)(ii) (objections “shall be specific and state with particularity all grounds for objection.”). “Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion . . . unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). The failure to specifically raise an argument in an objection to a magistrate’s decision results in forfeiture of that argument on appeal. Johns, 2013-Ohio-557, at ¶ 17 (9th Dist.). When a party fails to set forth a plain error argument in his merit brief, this Court will not create a plain error argument on his behalf. See Horak, 2018-Ohio-3659, at ¶ 29 (9th Dist.). {¶34} Nelson’s third assignment of error is overruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING APPELLEE ATTORNEY FEES IN THE AMOUNT OF $10,521. {¶35} In his fourth assignment of error, Nelson contends the trial court abused its discretion when it ordered him to pay Pia’s attorney fees related to her motion for contempt because the trial court erred in finding Nelson in contempt. However, this Court has already determined that the trial court did not abuse its discretion when it found Nelson in contempt. Nelson’s assignment of error is overruled. III. {¶36} Nelson’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas Domestic Relations Division is affirmed. Judgment affirmed.  14 There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. JILL FLAGG LANZINGER FOR THE COURT HENSAL, P. J. SUTTON, J. CONCUR. APPEARANCES: CAROLYN SOEDER, Attorney at Law, for Appellant. ADAM MORRIS and RANDAL A. LOWRY, Attorneys at Law, for Appellee.