Eaton Family Credit Union v. Brier , 2012 Ohio 178 ( 2012 )

[Cite as Eaton Family Credit Union v. Brier, 2012-Ohio-178.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96783
EATON FAMILY CREDIT UNION
PLAINTIFF-APPELLEE
vs.
JONATHAN A. BRIER, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Civil Appeal from the
Euclid Municipal Court
Case No. 09 CVF 00593
BEFORE: Blackmon, A.J., Kilbane, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANTS
Andrew S. Pollis
Joshua A. Lusk, Certified Legal Intern
Milton A. Kramer Law Clinic Ctr.
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
Matthew M. Young
Kevin C. Susman
Weltman, Weinberg & Reis
323 W. Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶ 1} Appellant Jonathan A. and Darla J. Brier (“the Briers”) appeal1
from the Euclid Municipal Court’s garnishment order and assign the
following errors for our review:
“I. The trial court erred in rejecting Mr. Brier’s affidavit
of indigency and requiring him to pay a fee to file his
notice of appeal.”
“II. The trial court erred in overruling Mr. Brier’s
objections to the garnishment of his personal earnings of
February 4, 2011, most of which were exempt from
garnishment.”
“III. The trial court erred in overruling Mr. Brier’s
motion to require proper calculations of subsequent
garnishments of his personal earnings, including his
personal earnings of March 4, 2011.”
“IV. The trial court erred in denying Mr. Brier’s motion
to recall garnished personal earnings released to the
plaintiff before the court ruled on Mr. Brier’s objections.”
{¶ 2} Having reviewed the record and pertinent law, we reverse the trial
court’s judgment in part and remand for the trial court to reimburse Brier the
$50 fee he paid to the municipal court to file his appeal. The apposite facts
follow.
Facts
1
The appellee did not file an appellee’s brief.
{¶ 3} On April 21, 2009, the trial court issued a default money judgment
in the amount of $739.33, plus interest, against the Briers in favor of Eaton
Family Credit Union (“Eaton Family”). On January 25, 2011, a garnishment
order was issued to garnish Jonathan Brier’s wages at Bally Total Fitness
(“Bally”). On February 1, 2011, Brier requested a hearing regarding the
garnishment of his personal income. He did not contest the amount he owed
Eaton Family; he argued that pursuant to the garnishment formula set forth
in R.C. 2329.66(A)(13), which is based upon whether paychecks are issued
monthly or biweekly, the amount being garnished from his pay should be less.
{¶ 4} On March 1, 2011, a hearing was conducted before a magistrate.
Pursuant to the App.R. 9(C) statement presented on appeal, Jonathan Brier
was the sole witness at the hearing. The evidence showed that Bally
employed Brier as a personal trainer. His income at Bally consisted of two
components. He received commissions from the sale of personal-training
sessions once a month. He was also paid for the time he spent in
personal-training sessions with Bally’s customers for which he was paid on a
biweekly basis. Brier presented as evidence his earnings statements from
Bally for the period of July 30, 2010 through February 24, 2011. The
statements listed his total income for each pay period and also distinguished
between the wages he received as commission income and his wages he
received for personal-training sessions.
{¶ 5} The magistrate concluded the garnishment amount was
appropriate pursuant to R.C. 2329.66(A)(13), because the decisive factor was
that Brier was paid biweekly. Brier filed objections to the magistrate’s
decision, which were overruled by the trial court. The trial court agreed
with the magistrate’s conclusion that the biweekly formula was the correct
way to determine the exempt earnings.
Affidavit of Indigence
{¶ 6} In his first assigned error, Brier argues the trial court erred when
it required him to pay $50 to file his notice of appeal. Relying on this court’s
decision in Tisdale v. A-Tech Automotive Mobile Serv. & Garage, Cuyahoga
App. No. 92825, 2009-Ohio-5382, Brier argues that he is indigent and should
not be subject to the filing fee.
{¶ 7} In Tisdale, the appellant presented to the Euclid Municipal Court
his notice of appeal, praecipe, docketing statement, and an affidavit of
indigency in support of his contention that he could not afford to pay the
filing fee for his appeal. The municipal court refused to file his appeal until
he paid the fee; the appellant filed a mandamus action in this court
requesting that we require the municipal court to waive the fee and file his
appeal.
{¶ 8} This court held that Euclid Municipal Court had “to accept for
filing Tisdale’s notice of appeal and accompanying materials as well as to
transmit all filings to the clerk of the court of appeals. See App.R. 3 and Loc.
App.R. 3.” Id. 15. However, this court stressed:
“We emphasize, however, that this decision does not
prevent the Euclid Municipal Court from imposing or
enforcing its own filing fee for appeals. Likewise, as part
of this action, this court makes no determination
regarding the propriety of the municipal court’s exercise
of its discretion in denying Tisdale’s request for indigency
status. Nevertheless, a trial court must accept for filing
and transmit to the clerk of the court of appeals a notice
of appeal praecipe, and docketing statement if the
appellant also files an affidavit of indigency for purposes
of commencing an appeal.”
{¶ 9} Tisdale stands for the proposition that a municipal court cannot
refuse to accept for filing an appellant’s notice of appeal when it has an
affidavit of indigency attached. Here, the municipal court refused to file the
appeal and concluded that Brier was not indigent, stating as follows: “Mr.
Brier’s request for indigency status is denied, and the requested Notice of
Appeal should not be accepted for filing until such time as the court costs for
such filing are paid.” Under Tisdale, the Euclid Muncipal Court cannot hold
an appeal hostage until payment of the fee is made; therefore, the court did
err in this respect. However, because Tisdale paid the fee, he was able to file
his appeal; therefore, the court’s action did not prevent him from filing the
appeal as in Tisdale. Consequently, the issue is whether Brier is entitled to
a reimbursement of the $50 fee.
{¶ 10} “The standard of review in an appeal from a decision denying a
motion for leave to proceed in forma pauperis is an abuse of discretion.”
Wilson v. Ohio Dept. of Rehab. & Corr. (2000), 138 Ohio App.3d 239, 243, 741
N.E.2d 152. An “abuse of discretion” has been defined as an unreasonable,
arbitrary, or unconscionable act on the part of the trial court. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. This court
accepted Brier’s affidavit of indigence, which was based on the same
information that Brier provided to the trial court to support his claim of
indigence. We did not require that he pay the $125 appellate fee.
Consequently, we conclude the trial court abused its discretion by not finding
Brier indigent for purposes of paying the $50 municipal court appellate fee.
Accordingly, Brier’s first assigned error has merit in part; therefore, we
reverse the trial court’s decision requiring Brier to pay the $50 fee and
remand the matter for the trial court to issue a reimbursement of $50 to
Brier.
Garnishment of Exempt Earnings
{¶ 11} We will address Brier’s second and third assigned errors together
as they concern the calculation used to determine the amount of wages to be
garnished from Brier’s biweekly earnings.
{¶ 12} R.C. 2329.66 expressly allows for a portion of “personal earnings”
to be held exempt from execution, attachment, or garnishment and provides
in part as follows:
“(A) Every person who is domiciled in this state may hold
property exempt from execution, garnishment,
attachment, or sale to satisfy a judgment or order, as
follows:
“(13)[P]ersonal earnings of the person owed to the person,
for services in an amount equal to the greater of the
following amounts:
“(a) If [the employee is] paid weekly, thirty times the
current federal minimum hourly wage; if paid biweekly,
sixty times the current federal minimum hourly wage; if
paid semimonthly, sixty-five times the current federal
minimum hourly wage; or if paid monthly, one hundred
thirty times the current federal minimum hourly wage
that is in effect at the time the earnings are payable, as
prescribed by the ‘Fair Labor Standards Act of 1938,’ 52
Stat 1060, 29 U.S.C. 206(a)(1), as amended;
“(b) Seventy-five per cent of the disposable earnings owed
to the person.”
{¶ 13} Therefore, to comply with the statute, a garnishee must
determine the amount that is exempt under both subsections (a) and (b)
above and then subtract the higher amount from the employee’s personal
earnings. The sum amount remaining is the nonexempt amount that can be
subject to garnishment.
{¶ 14} Here, it is undisputed that Brier is paid biweekly. However,
because one of the biweekly paychecks contains payment for commissions
that he receives monthly, Brier contends that the exempted amount should be
higher. We disagree. The statute is focused on the number of times a
person is paid within a month. Brier receives his commission once a month.
Nevertheless, he receives a paycheck twice a month with the commission
contained in one of the paychecks. The statute does not require a
break-down of the biweekly checks to determine whether they include
payments received once a month. Consequently, the formula for biweekly
paychecks applies. No variation is necessary or required. Thus, the trial
court did not err by denying Brier’s objections to the magistrate’s report and
adopting the report.
{¶ 15} Brier also argues that even if the court was correct in using the
full amount of his paychecks for calculating the exemption, that for his pay
period of March 4, 2011, his pay was garnished $8.79 more than permitted.
Our review of Brier’s objections to the magistrate’s report shows that this
argument was not raised as part of his objections. Failure to raise an
objection in the magistrate’s report, waives the error on appeal. Civ.R.
53(3)(d); Slowbe v. Slowbe, Cuyahoga App. No. 83079, 2004-Ohio-2411;
Hampton-Jones v. Jones, Cuyahoga App. Nos. 77412 and 77279,
2001-Ohio-4229. However, because of the nature of this case, we address
Brier’s argument and find it lacks merit.
{¶ 16} Brier claims that applying the 75% formula to his March 4, 2011
pay instead of the biweekly formula, would have led to a bigger exemption.2
We disagree. Using the biweekly formula (minimum federal wage of $7.25 x
60 = 435) the $435 was exempt from his paycheck, leaving approximately
$145 subject to garnishment ($580 - 435 = 145). Applying the 75% of income
formula, we come to the same amount that is subject to garnishment. ($580 x
.75 = 435). Therefore, Brier is incorrect in maintaining he is due a refund of
$8.79. Accordingly, Brier’s second and third assigned errors are overruled.
Unauthorized Garnishments
{¶ 17} In his fourth assigned error, Brier argues that the bank made
unauthorized garnishments from his bank account prior to the court adopting
the magistrate’s decision.
{¶ 18} We agree that only judges, not magistrates, may terminate claims
or actions by entering judgment. Harkai v. Scherba Industries, Inc. (2000),
2
As we stated previously, the court must determine the exemption under the
correct formula (either monthly or biweekly) and then additionally determine the
amount that would be exempted under the general 75% formula; the formula that
leaves the greatest exemption is used for calculating the garnishment.
136 Ohio App.3d 211, 217, 736 N.E.2d 101. We recognize that Eaton
continued to garnish Brier’s wages before the trial court adopted the
magistrate’s report; however, the trial court did adopt the report. Thus,
Brier’s argument is moot. We see no necessity to require Eaton Family to
reimburse Brier for the amounts garnished prior to the court’s adoption of the
magistrate’s report, only to have Brier return the amounts to Eaton Family.
Accordingly, Brier’s fourth assigned error is overruled.
{¶ 19} Judgment is affirmed in part, reversed in part and remanded for
further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR