Stanley v. Parker ( 2021 )

[Cite as Stanley v. Parker, 2021-Ohio-1701.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KIMBERLY SUE STANLEY, et al. JUDGES:
Hon. Craig R. Baldwin, P. J.
Plaintiffs-Appellees Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2020-0050
CLARENCE PARKER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. JV000033989
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 17, 2021
APPEARANCES:
For Plaintiff-Appellee Stanley For Defendant-Appellant
KIMBERLY S. STANLEY, PRO SE CLARENCE PARKER, PRO SE
3585 Gorsuch Road, Apt 1-B 584 Glade Park Loop
Nashport, Ohio 43830 Montgomery, Alabama 36109
Muskingum County, Case No. CT2020-0050 2
Wise, J.
{¶1} Defendant-Appellant Clarence Parker appeals the September 24, 2020,
decision of the Muskingum County Court of Common Pleas, Domestic Relations Division,
approving and adopting the Magistrate’s Decision.
{¶2} Plaintiff-Appellee Kimberly Sue Stanley has not filed a brief in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On November 15, 1994, Appellee Kimberly Sue Stanley and the Muskingum
County Child Support Enforcement Agency (MCCSEA) filed a Complaint to Establish the
Father-Child Relationship in the Muskingum County Court of Common Pleas, Juvenile
Division, naming Clarence Parker as the natural father of Brodrick (DOB 07/13/1989) and
Terrence (DOB 11/25/1993).
{¶5} On November 21, 1994, Clarence Parker was adjudicated as the father of
the two minor children. No order for child support was issued.
{¶6} On July 24, 1996, Appellee Kimberly Sue Stanley and MCCSEA filed a
second Complaint to Establish the Father-Child Relationship in the Muskingum County
Court of Common Pleas, Juvenile Division, with regard to Christopher (04/24/1996).
{¶7} On September 4, 1996, a hearing was held on Appellee’s motion.
{¶8} By Judgment Entry filed October 8, 1996, the trial court adjudicated Mr.
Parker as the father of Kimberly Stanley's child Christopher (DOB 04/24/1996). In
addition, the trial court ordered Mr. Parker to pay Kimberly Stanley $123.71 per month
per child for the support of the three children, beginning May 1, 1996. The trial court also
granted the Ohio Department of Human Services judgment against Mr. Parker in the
Muskingum County, Case No. CT2020-0050 3
amount of $8,103.07 for confinement costs1. The court ordered Mr. Parker to pay $52.00
per month toward the judgment for confinement costs and accumulated child support
arrearages.
{¶9} By Agreed Entry filed 04/14/1999, the trial court found Mr. Parker in
contempt for failure to pay child support as ordered. A thirty (30) day jail sentence was
suspended on the condition that Mr. Parker purge his contempt by paying not less than
$107.50 per month toward arrearages in the approximate amount of $12,890.43 as of
04/08/1999.
{¶10} By Agreed Entry filed April 21, 1999, the trial court found that Kimberly
Stanley waived all child support arrearages owed to her by Mr. Parker through
04/09/1999, being the amount of $6,156.80. The court found that Kimberly Stanley could
not waive arrearages that had already been assigned to the state or the judgment for
confinement costs. The trial court did not terminate or modify the current child support
obligation of $123.71 per month per child or the purge condition of $107.50 per month,
plus processing charge.
{¶11} In May, 2000, the trial court imposed the previously suspended jail sentence
because Mr. Parker failed to comply with the purge conditions.
{¶12} On August 30, 2007, the trial court approved and adopted the Notice of
Child Support Termination Investigation of 07/13/2007, indicating that Mr. Parker's
1 R.C. §3111.13(C) Except as otherwise provided in this section, the judgment or order
may contain, at the request of a party and if not prohibited under federal law, any other
provision directed against the appropriate party to the proceeding, concerning the duty of
support, the payment of all or any part of the reasonable expenses of the mother's
pregnancy and confinement, the furnishing of bond or other security for the payment of
the judgment, or any other matter in the best interest of the child.
Muskingum County, Case No. CT2020-0050 4
obligation to pay child support for Brodrick terminated on 07/13/2007, and that he owed
child support arrearages of $49,044.58 and processing charges of $954.71 as of
05/31/2007.
{¶13} On October 23, 2009, the trial court approved and adopted the Notice of
Child Support Termination Investigation indicating that Mr. Parker's obligation to pay child
support for Christopher terminated on 09/01/2009, because the child was placed in Mr.
Parker's custody as of that date, and that he owed $51,599.57 in arrears and/or other
balance as of 08/31/2009.
{¶14} On December 16, 2009, neither party having requested a hearing to contest
the Findings and Recommendations for modification of child support issued on
11/24/2009, the court adopted those Findings and Recommendations. The trial court
reduced Mr. Parker's current support obligation for Terrence to $6.16 per month when
private health insurance is provided, or $88.88 per month, plus cash medical support of
$64.58 per month, when private health insurance is not provided, plus processing
charges. The trial court ordered Clarence Parker to pay $354.92 per month, plus
processing charges, toward child support arrearages of $51,153.16, plus processing
charge, as of 11/24/2009.
{¶15} On May 7, 2012, the Child Support Division (CSD) issued Findings and a
Recommendation to Terminate the Court Child Support Order relating to Terrence. CSD
found that Terrence turned 18 years of age on November 25, 2011, and graduated from
Tri-Valley High School on May 25, 2012. Based on those findings, CSD recommended
that Mr. Parker's current child support obligation for Terrence be terminated as of May
12, 2012. In addition, CSD found that Mr. Parker owed $44,309.30 in arrears and/or other
Muskingum County, Case No. CT2020-0050 5
balances as of April 30, 2012. CSD recommended that Mr. Parker be ordered to pay
$361.08 per month toward the arrears and/or other balances.
{¶16} By motion filed July 16, 2012, Mr. Parker timely objected to the
administrative child support termination decision issued by the Muskingum County Job
and Family Services, Child Support Division on June 19, 2012.
{¶17} On August 14, 2012, a hearing on the motion commenced and was later
completed on October 9, 2012. Kimberly Stanley and Clarence Parker appeared for
hearing without counsel.
{¶18} In his motion, Mr. Parker asserted that CSD erred in finding that he owed
$44,309.30 in arrears and/or other balances (child support, confinement costs, and
processing charges) as of April 30, 2012.
{¶19} The trial court found that when it adopted the September 18, 2009, CSD
Notice of Child Support Termination Investigation, it made a finding on 10/23/2009 that
Clarence Parker owed arrears and/or other balances of $51,599.57 as of 08/31/2009, and
that no appeal was taken from that finding. The court found that as result, both parties
were legally bound by that finding and are barred by the doctrine of res judicata from
presenting any evidence or argument to challenge that 2009 arrearage finding.
{¶20} At the same hearing, Mr. Parker asserted that he should be given credit
against his arrearage balance for the summer months during which the children visited
him during their minority. The court found this argument to be without merit because Mr.
Parker's obligation to pay child support to Kimberly Stanley was never suspended or
otherwise modified during any parenting time periods. The court found that it could not
retroactively modify the amount of Mr. Parker's arrearages based upon such a claim.
Muskingum County, Case No. CT2020-0050 6
However, at the hearing on 10/09/2012, Kimberly Stanley knowingly and voluntarily
waived the sum of $2,226.78 in unassigned child support arrearages ($371.13 x 6
months) based upon the amount of extended parenting time Mr. Parker exercised with
the children during their minority. Therefore, the court ordered that CSD adjust its records
to reflect the waiver of arrearages of $2,226.78 in unassigned child support owed to her
in this case.
{¶21} Mr. Parker also asserted that he should receive some sort of credit against
his support arrearages because Kimberly Stanley failed to permit him to claim the children
as dependents on his taxes, thereby reducing the amount of his tax refunds that CSD
intercepted. The court found that in its original child support order of 10/07/1996, the court
allocated to Mr. Parker the right to claim all three children as dependents for purposes of
local, state, and federal income taxation.
{¶22} The court found that if Mr. Parker had or has a valid claim against Kimberly
Stanley for violating the court order relating to the dependency exemptions, he has a right
to file the appropriate action to enforce the court order. The court went on to find, however,
that the amount of Mr. Parker's child support obligation was never conditioned on
Kimberly Stanley's compliance with the order allocating dependency exemptions. The
court found that he had not filed a motion charging her with contempt for violating the
order allocating dependency exemptions; nor had he filed a motion requesting a money
judgment against her for this alleged violation. Therefore, any claim that Mr. Parker may
or may not have against Kimberly Stanley for allegedly violating the order allocating
dependency exemptions was outside the scope of this proceeding and without merit.
Muskingum County, Case No. CT2020-0050 7
{¶23} Mr. Parker also asserted that he requested a modification of his child
support obligation to Kimberly Stanley in 1997, 1999, and 2009, but that no action was
ever taken on his requests. The court found that the Clerk's file revealed no motion from
either party requesting a modification of child support at any time. The file does contain a
letter from Mr. Parker, dated 12/21/2009, indicating that he was aware that CSD had
informed him that his request for a court hearing to contest CSD's recommended
modification was not submitted in a timely manner; however, the court had already
adopted CSD's findings and recommendations on 12/16/2009 because neither party had
requested a court hearing within the statutorily prescribed objection period. Thus, nothing
in the Clerk's file supports Clarence Parker's assertion that the Court failed to act on any
written motion requesting modification of the child support order in this case. Therefore,
this argument is without merit.
{¶24} At said hearing, Mr. Parker also asserted that he should not be required to
pay the judgment for confinement costs because he was indigent at the time the judgment
was entered against him. The trial court found that such argument could and should have
been raised in a direct appeal of the judgment, and that it could not be used to collaterally
attack the judgment sixteen (16) years after it was granted.
{¶25} Clarence Parker further asserted that CSD should not be entitled to collect
processing charge arrears from him for the period of time during which he has been
making child support payments because CSD had failed to deduct its processing charge
from his payments. In response, the court found Ohio Revised Code and the Ohio
Administrative Code govern the hierarchy under which monies collected by the CSD must
be applied toward support obligations. With the exception of tax intercepts, CSD is not
Muskingum County, Case No. CT2020-0050 8
permitted to apply monies collected from Mr. Parker toward arrears owed to the State,
including processing charges, until the obligation owed to Kimberly Stanley has been paid
in full. See R.C. §3121.58. The court found that the CSD had been doing exactly what
the law requires and found this argument is without merit.
{¶26} Finally, Clarence Parker asserted that CSD had incorrectly determined the
amount of processing charge he owes. The court found the amount of processing charge
is determined by statute, and that CSD is assessing a processing charge in the
appropriate amount.
{¶27} Finally, the court ordered that Clarence Parker shall pay not less than
$361.08 per month, plus processing charge, toward child support arrears, confinement
costs, and processing charge arrears, until all balances are paid in full. CSD shall issue
the appropriate withholding notice in that amount.
{¶28} On September 4, 2019, Appellant Clarence Parker filed a motion with the
Muskingum County Common Pleas Court, Domestic Relations Division, requesting that
the income withholding order issued to his employer by the Child Support Division be
immediately rescinded and that “all funds, payments, garnishments and all monies
allocated or spent in reference to or pursuant to this case since 2012” be returned.
{¶29} On August 5, 2020, a hearing was held on Appellant’s motion before a
Magistrate. Present at the hearing were Appellant, who appeared without counsel, and
the attorney for the Muskingum County Department of Job and Family Services, Child
Support Division. Kimberly Stanley did not appear for the hearing.
{¶30} At the hearing, Appellant amended his motion to add a request that the court
waive all arrearages in this case.
Muskingum County, Case No. CT2020-0050 9
{¶31} On September 24, 2020, the Magistrate filed his Decision wherein he
summarized the prior proceedings and decisions which had taken place in this case from
October, 2009, through November, 2012. The Magistrate also included tables showing
the amount of child support due for each month beginning with September, 2009, and
ending with May, 2012. The court then prepared another table showing the processing
charges for that same time period. Next, the court included a table showing the payments
received by the Child Support Division from September 1, 2009, through July 31, 2020.
The court found that as of July 31, 2020, Appellant owed child support arrearages of
$12,214.28, processing charges of $2,020.21, and confinement costs of $8,103.07, for a
total balance of $22,337.56.
{¶32} The court further found that on November, 2012, the court ordered
Appellant to make monthly payments of $361.08, plus processing charges, toward the
arrearage balances he owed.
{¶33} The court then found that Appellant had produced no evidence showing that
the court’s order requiring him to make said monthly payments should be changed. The
court further found that R.C. §3121.02 requires that any arrearages be collected by
withholding or deduction from the obligor’s income.
{¶34} Based on the foregoing, the court dismissed Appellant’s motion and
amended motion.
{¶35} By Judgment Entry filed September 24, 2020, the trial court approved and
adopted the decision of the Magistrate and entered it as the court’s judgment.
{¶36} Appellant now appeals, raising the following assignment of error for review:
Muskingum County, Case No. CT2020-0050 10
ASSIGNMENT OF ERROR
{¶37} “I. THE COURT WRONGLY USES IT'S [SIC] FINDINGS ON OCTOBER,
2009 AS IT'S [SIC] STARTING POINT IN CALCULATING ARREARS OWED. THIS
ORDER HAS BEEN IN EFFECT SINCE 1996.
THE COURT ERRS BY DISMISSING AND FAILING TO RULE ON MOTIONS
FILED WITH IT'S [SIC] COURT.
THE COURT ERRS WHEN IT CHARGES MR. PARKER WITH CONFINEMENT
COST IT SEEKS IN THE AMOUNT OF $8,103.07. THE COURT HAS NEVER DEFINED
"CONFINEMENT” AS USED IN THIS CASE.
THE COURT ERRED IN 2012 BY NOT AWARDING MR. PARKER FINANCIAL
SUPPORT FROM THE PLAINTIFF FOR THE MINOR CHILD IN HIS CUSTODY.
THE COURT ALSO ERRED WHEN IT DID NOT DISMISS THIS ORDER
WITHOUT PREJUDICE WHEN IT WAS MADE AWARE OF THE PLAINTIFF’S FAILURE
TO ADHERE TO IT IN 2012.
THE MUSKINGUM COUNTY COURT OF COMMON PLEAS HAS BEEN BIASED
FOR THE PLAINTIFF, IGNORING THE DEFENDANT'S CLAIMS AND ARGUING FOR
THE PLAINTIFF IN ITS DECISIONS.
THE COURT CONTRADICTS THE NORMS OF THE COURT BY RULING IN
FAVOR OF THE PLAINTIFF WHEN THE PLAINTIFF FAILED TO APPEAR IN COURT.
I.
{¶38} Appellant set forth and argued the above-listed assignment of error as a
single assignment of error.
Muskingum County, Case No. CT2020-0050 11
{¶39} Initially, we note that Appellant has failed to provide this Court with a
transcript of the August 5, 2020, proceedings, or any of the proceedings in which he is
alleging error occurred.
{¶40} An appellant is required to provide a transcript for appellate review. Knapp
v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Such is
necessary because an appellant shoulders the burden of demonstrating error by
reference to matters within the record. See, State v. Skaggs, 53 Ohio St.2d 162, 163, 372
N.E.2d 1355 (1978).
{¶41} This principle is embodied in App.R. 9(B), which states in relevant part:
If the appellant intends to urge on appeal that a finding or conclusion
is unsupported by the evidence or is contrary to the weight of the evidence,
the appellant shall include in the record a transcript of all evidence relevant
to the findings or conclusion. App.R. 9(B).
{¶42} Where portions of the transcript necessary for the resolution of assigned
errors are omitted from the record, an appellate court has nothing to pass upon. As
appellant cannot demonstrate those errors, the court has no choice but to presume the
validity of the lower court's proceedings. State v. Ridgway, 5th Dist. Stark
No.1998CA00147, 1999 WL 100349 (Feb. 1, 1999), citing Knapp, supra.
{¶43} Under the circumstances, a transcript of the proceedings is necessary for a
complete review of the errors assigned in Appellant's brief since Appellant is challenging
the Magistrate's findings. As Appellant has failed to provide this Court with a transcript,
we must presume regularity of the proceedings below and affirm.
Muskingum County, Case No. CT2020-0050 12
{¶44} Additionally, Appellant did not file objections to the Magistrate's Decision in
this case. Civil Rule 53 governs matters referred to magistrates. Civ.R. 53(D) states in
pertinent part:
(3) Magistrate's decision; objections to magistrate's decision.
***
(b) Objections to magistrate's decision
***
(iv) Waiver of right to assign adoption by court as error on appeal.
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, whether or
not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).
{¶45} In failing to object to the Magistrate's decision, Appellant waived any error.
Civ.R. 53(D)(3)(b)(iv) (stating that “[e]xcept for a claim of plain error, a party shall not
assign as error on appeal the court's adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of fact or conclusion of law under Civ.R.
53[D][3][a][ii], unless the party has objected to that finding or conclusion as required by
Civ.R. 53[D][3][b]”).
{¶46} As there is no record, there is likewise no demonstration of plain error in
said record, rendering Appellant's assertions unpersuasive.
Muskingum County, Case No. CT2020-0050 13
{¶47} Furthermore, the decisions and calculations Appellant is challenging were
made in 1996, 2009 and 2012. Appellant failed to take issue with these decisions when
they were made.
{¶48} “A valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction * * * that was the subject
matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379,
syllabus.
{¶49} The doctrine of res judicata not only bars all claims that were litigated in a
prior action but also all claims which might have been litigated in that action. In Grava,
the Supreme Court of Ohio reiterated its prior statement of the law made in Natl.
Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62:
* * * “It has long been the law of Ohio that ‘an existing final judgment
or decree between the parties to litigation is conclusive as to all claims
which were or might have been litigated in a first lawsuit’ ”(emphasis sic)
(quoting Rogers v. Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90,
494 N.E.2d 1387, 1388). We also declared that “[t]he doctrine of res judicata
requires a plaintiff to present every ground for relief in the first action, or be
forever barred from asserting it.” Id.{¶50} Grava, at 382.
{¶51} Because Appellant could have raised his objections in an appeal from the
court’s 1996, 2009 and 2012 decisions, these matters are both improperly before this
Court, raised for the first time on appeal, and such is barred by the doctrine of res judicata.
Muskingum County, Case No. CT2020-0050 14
Therefore, we cannot find error with the trial court’s calculations for purposes of
determining Appellant's arrearages amount.
{¶52} Based on the record before us, reviewed under the constraints of Civ.R. 53,
we find no abuse of discretion in the trial court’s decision affirming and adopting the
Magistrate’s Decision dismissing Appellant’s motions.
{¶53} Accordingly, Appellant’s assignment of error is overruled.
{¶54} The judgment of the Muskingum County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Wise, J.
Baldwin, P. J., and
Gwin, J., concur.
JWW/kw 0514