Pappas v. Basile , 2014 Ohio 5279 ( 2014 )

[Cite as Pappas v. Basile, 2014-Ohio-5279.]
COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
Andrea Rocco, Clerk of Courts
JOHN S. PAPPAS COA NO. LOWER COURT NO.
101059 DR-00-273292
101060 DR-06-312006
Appellee DOMESTIC RELATIONS
vs.
JENNIFER A. BASILE MOTION NO. 479913
Appellant
DATE: November 26, 2014
Journal Entry
Upon further review, this court sua sponte reconsiders its decision in this case. The journal
entry and opinion as announced by this court on September 18, 2014 (2014-Ohio-4093), is
hereby vacated and substituted with the journal entry and opinion issued November 26, 2014.
KATHLEEN ANN KEOUGH, P.J., Concurs
TIM McCORMACK, J., Concurs
MARY EILEEN KILBANE,
Judge
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101059 and 101060
IN RE: CONTEMPT OF JOHN S. PAPPAS
AND JAMES A. BURKE
APPELLEES
In the matters styled:
John S. Pappas v. Jennifer A. Basile
and
James A. Burke v. Raenette L. Burke
[Appeal by John J. Ready, Guardian Ad Litem]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case Nos. DR-00-273292 and DR-06-312006
BEFORE: Kilbane, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEYS FOR APPELLANT
John J. Ready
Sarah E. English
John J. Ready & Associates
905-A Canterbury Road
Westlake, Ohio 44145
APPELLEES
John S. Pappas, pro se
264 Moore Road, Apartment 4E
Avon Lake, Ohio 44012
James A. Burke, pro se
4122 Columbia Square
Suite 103
North Olmsted, Ohio 44070
ON RECONSIDERATION1
MARY EILEEN KILBANE, J.:
{¶1} In these consolidated appeals, appellant-guardian ad litem, John J. Ready
(“Ready”), appeals the rulings of the Cuyahoga County Domestic Relations Court that denied his
motions to show cause as to why appellees, John S. Pappas (“Pappas”) and James A. Burke
(“Burke”) should not be held in contempt of court for failing to pay judgments awarded to Ready.
Ready argued that the judgments, arising from guardian ad litem (“GAL”) fees, are in the nature
of child support so they are enforceable through contempt proceedings. In an opinion released
on September 18, 2014, this court affirmed the denial of both of Ready’s motions to show cause.
In re Pappas, 8th Dist. Cuyahoga No. 101059 and 101060, 2014-Ohio-4093 (“Pappas I”).
Ready argues that pursuant to App.R. 26, there is a conflict between Pappas I and Bacharowski
v. Bacharowski, 8th Dist. Cuyahoga No. 71164, 1997 Ohio App. LEXIS 3212 (July 24, 1997),
and In re Thomas, 8th Dist. Cuyahoga Nos. 86375 and 86939, 2006-Ohio-3324.
{¶2} Upon reconsideration of these consolidated appeals, we find no conflict with
Bacharowski because Bacharowski did not involve GAL fees. In addition, the Thomas court
cautioned that some of the amount owed to a GAL might not be in the nature of child support,
but instead might constitute a civil debt. Thomas is therefore distinguishable from this matter,
and we conclude that the trial court did not abuse its broad discretion and affirm the orders of the
trial court denying Ready’s motions to show cause.
1Sua sponte, upon further review, this court reconsiders its decision in this
case. The original announcement of decision, In Re: Contempt of John S. Pappas & James
A. Burke, 8th Dist. Cuyahoga Nos. 101059 and 101060, 2014-Ohio-4093, released
September 18, 2014, is hereby vacated. This opinion, issued upon reconsideration,
is the court’s journalized decision in this appeal. See App.R. 22(C).
Appeal No. 101059
John S. Pappas v. Jennifer A. Basile
{¶3} On April 10, 2000, Pappas and Jennifer Basile filed a complaint for dissolution.
On September 21, 2005, Ready was appointed to serve as GAL for the parties’ child, J.P., and on
September 28, 2005, Ready was appointed to serve as GAL for the parties’ child, S.P. On June
14, 2007, the parties entered into an agreed entry regarding shared parenting. On January 23,
2008, the parties and Ready entered into an agreed journal entry regarding GAL fees that
provided in relevant part as follows:
“[The parties] hereby agree that each party shall be responsible for one-half (50%)
of the [GAL] fees.
“IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the [GAL],
John J. Ready, is hereby awarded judgment against John Pappas in the amount of
FIVE THOUSAND TWO HUNDRED FOURTEEN DOLLARS ($5,214.00) and
against Jennifer Basile, in the amount of FIVE THOUSAND TWO HUNDRED
FOURTEEN DOLLARS ($5,214.00) for which judgment is rendered and for
which execution shall issue for services rendered as GAL in the above-captioned
matter through December 12, 2007.
***
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that GAL fees
ordered herein are in the nature of child support and are not dischargeable in any
bankruptcy proceeding.
(Emphasis added.)
{¶4} The GAL fees continued to accrue over the course of the litigation, and on
October 26, 2009, the GAL and Pappas entered into another agreed journal entry that provided:
John S. Pappas shall pay Seventy-Five Dollars ($75.00) by the fifth day of each
month as and for his portion of [GAL] fees until the total balance due of Five
Thousand Seven Hundred Twenty-One Dollars and Ten Cents ($5,721.10) has
been satisfied.
{¶5} On January 15, 2014, Ready filed a motion to show cause against Pappas as to
why he should not be held in contempt of court, averring that he had paid only $520 on the
$5,214 judgment, and currently owes $7,683.89. On February 4, 2014, the trial court denied the
motion to show cause in a journal entry that stated:
On January 23, 2008, this Court awarded Ready a judgment against Pappas in the
amount of $5,214. When a debt has been reduced to judgment, it cannot be
enforced by contempt. A money judgment “may be executed upon or certified as
a judgment lien which may be transferred and on which attachment or
garnishment may issue”; however, such a judgment cannot be enforced by
contempt because “doing so would contravene the Ohio Constitution’s prohibition
on imprisonment for ‘debt.’” Sizemore v. Sizemore, 12th Dist. Warren No.
CA2009-04-045, 2010-Ohio-1525, ¶ 14, 18; accord Gibson v. Gibson, 5th Dist.
Stark No. 2011-CA-00186, 2012-Ohio-1161, ¶ 29.
{¶6} Ready appealed this ruling in App. No. 101059, arguing that the trial court
erroneously denied his motion to show cause by relying upon the Ohio Constitution’s prohibition
against imprisonment for a debt.
Appeal No. 101060
James A. Burke v. Raenette L. Burke
{¶7} On August 14, 2006, Raenette Burke (“Raenette”) filed a complaint for divorce
against Burke. On July 27, 2007, Ready was appointed GAL of the parties’ three minor
children. On July 25, 2008, the parties entered into an agreed judgment entry that awarded
Ready GAL fees in the amount of $4,138.81 from both Raenette and Burke. The agreed
judgment entry provided in relevant part as follows:
IT IS, THEREFORE ORDERED ADJUDGED AND DECREED that the [GAL],
John J. Ready, is hereby awarded judgment against Raenette Louise Burke in the
amount of FOUR THOUSAND ONE HUNDRED THIRTY-EIGHT DOLLARS
AND EIGHTY-ONE CENTS ($4,138.81) and against James A. Burke, in the
amount of FOUR THOUSAND ONE HUNDRED THIRTY-EIGHT DOLLARS
AND EIGHTY-ONE CENTS ($4,138.81) for which judgment is rendered and for
which execution shall issue for services rendered as [GAL] in the above-captioned
matter through June 25, 2008.
***
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [GAL] fees
ordered herein are in the nature of child support and are not dischargeable in any
bankruptcy proceeding.
(Emphasis added.)
{¶8} On August 7, 2009, Ready filed a motion to show cause against Raenette as to
why she should not be held in contempt of court for failing to pay the agreed judgment, alleging
that she had not made any payments on her portion of the fees awarded to Ready. The
magistrate held a hearing and determined that Raenette “failed to make any payments
whatsoever, except a $20.00 payment received by this office this morning.” The magistrate
issued a
decision recommending that the court hold her in contempt of court. On January 11, 2010, the
court issued a contempt citation against Raenette but permitted her to purge the contempt citation
by making scheduled payments on the balance due.
{¶9} On January 15, 2014, Ready filed a motion to show cause seeking to have Burke
found in contempt of court, averring that he had paid $2,175 of the $4,138.81 agreed judgment
amount, and that there was an unpaid balance of $1,963.81. On February 4, 2014, the trial court
denied the motion and determined:
On July 23, 2008, this Court awarded Ready a judgment against Burke in the
amount of $4,138.81. Ready states that Burke has made payments in partial
satisfaction of the judgment, totaling $2,175, leaving a balance of $1,963.81 plus
interest unpaid. When a debt has been reduced to judgment, it cannot be
enforced by contempt. A money judgment “may be executed upon or certified as
a judgment lien which may be transferred and on which attachment or
garnishment may issue”; however, such a judgment cannot be enforced by
contempt because “doing so would contravene the Ohio Constitution’s prohibition
on imprisonment for ‘debt.’” * * * Sizemore v. Sizemore, 12th Dist. Warren No.
CA2009-04-045, 2010-Ohio-1525, ¶ 14, 18; accord Gibson v. Gibson, 5th Dist.
Stark No. 2011-CA-00186, 2012-Ohio-1161, ¶ 29.
{¶10} Ready appealed this ruling in App. No. 101060, arguing that the trial court
erroneously denied his motion to show cause by relying upon the Ohio Constitution’s prohibition
against imprisonment for a debt. On April 3, 2014, this court granted Ready’s motion to
consolidate App. Nos. 101059 and 101060.
Review for an Abuse of Broad Discretion
{¶11} Beginning, as we must, with our standard of review, we note that Civ.R. 75(B)(2)
grants to the court broad authority to tax as costs the guardian ad litem’s fee. Pruden-Wilgus v.
Wilgus, 46 Ohio App.3d 13, 16, 545 N.E.2d 647 (6th Dist.1988). In Pappas I , this court
observed that the trial court had relied upon Gibson, 5th Dist. Stark No. 2011-CA-00186,
2012-Ohio-1161, and Sizemore, and in light of the deferential standard of review, found no abuse
of discretion.
{¶12} In Bacharowski, 1997 Ohio App. LEXIS 3212, this court noted the trial court’s
discretion and held that a trial court “correctly used its contempt powers to enforce the amount
due upon the [child support] arrearage which had been reduced to judgment.” Similarly, in
Thomas, 8th Dist. Cuyahoga Nos. 86375 and 86939, 2006-Ohio-3324, this court likewise noted
the abuse of discretion standard of review, and then upheld a contempt citation where the mother
failed to pay the GAL fees to the extent that they were in the nature of support to meet the needs
of the minor child. It therefore bears noting, as a preliminary matter with regard to the standard
of review, that in both Bacharowski and Thomas, as in the instant case, the trial court’s actions
were affirmed following application of the deferential standard of an abuse of discretion.
No Conflict With Bacharowski
{¶13} With regard to the substantive law, we note that Bacharowski did not involve
GAL fees, but rather, involved the issue of enforcement of child support orders. Because the
amount in controversy was indisputably in the nature of support, the Bacharowski court
concluded that the trial court properly found the obligor in contempt for failing to pay child
support arrearages, even where they had been reduced to a lump-sum judgment. Bacharowski
arrived at this conclusion by application of the Ohio Supreme Court’s decisions in Cramer v.
Petrie, 70 Ohio St.3d 131, 1994-Ohio-404, 637 N.E.2d 882 ( obligation to pay child support is
not a “debt” within the constitutional prohibition against imprisonment for debts, but is a “a
personal duty” owed to the former spouse, the child, and society in general so it may be enforced
through contempt proceedings even after the child is emancipated), and Young v. Young, 70 Ohio
St.3d 679, 1994-Ohio-97, 640 N.E.2d 839 (reversing, without opinion, a decision that concluded
that a trial court lacked authority to use contempt to enforce both payment of lump sum judgment
and a continuing order to enforce child support arrearages that were not reduced to a lump sum
judgment).
{¶14} Therefore, we conclude that Bacharowski is not in conflict with this court’s
decision in Pappas I since Bacharowski involved child support payments and did not involve
GAL fees or other payments to a third party.
Thomas Is Distinguishable
{¶15} In Thomas, 8th Dist. Cuyahoga Nos. 86375 and 86939, 2006-Ohio-3324, the trial
court ordered the mother to pay $6,168 to the GAL “as [GAL] fees, for additional child
support[.]” This court agreed with the trial court’s conclusion that the sum was not
dischargeable in bankruptcy and stated:
Pursuant to R.C. 3111.14, the court may assess [GAL] fees against the parties in a
child support case. See Sutherland v. Sutherland (1989), 61 Ohio App.3d 137.
Under 11 U.S.C. 523(A)(5), a bankruptcy proceeding “does not discharge an
individual debtor from any debt * * * for a domestic support obligation.” See
also Jackson v. Herron, Lake App. No. 2004-L-045, 2005-Ohio-4039 (holding
that “the United States Bankruptcy Court for the Northern District of Ohio * * *
held that the nature of the duties performed by a [GAL] ‘is clearly within the
nature of support to meet the needs of the minor child.’ As such, [GAL] fees,
like a child support obligation, is a nondischargeable debt”) (quoting In re Lever
(N.D. Ohio 1991), 174 B.R. 936, 942). Furthermore, pursuant to B.R. 4007 and 28
U.S.C. 1334, state courts have concurrent jurisdiction with bankruptcy courts to
hear matters concerning whether a particular payment is in the nature of support
and, thus, whether it is dischargeable.
{¶16} The Thomas court recognized that pursuant to Civ.R. 75(B)(2), a trial court may
“appoint a [GAL] and legal counsel, if necessary, for the child and tax the costs.” (Emphasis
added.) The Thomas court did not consider, however, that under Article I, Section 15 of the
Ohio Constitution, a court may not use its contempt powers to compel payment of court costs.
Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969), paragraphs six and seven of the
syllabus.
{¶17} Likewise, the Thomas court did not take into account that pursuant to R.C.
3105.73, GAL fees are “litigation expenses.” In accordance with R.C. 3105.73(D), “nothing in
this section prevents an award of attorney’s fees and litigation expenses from being designated as
spousal support,” but there is no authorization for treating the fees as child support. In O’Malley
v. O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, the trial court ordered the mother
to pay half the GAL fees and the expert fees as child support. This court held that GAL fees,
expert fees, and attorney fees are “litigation expenses” under R.C. 3105.73. Id. at ¶ 87, citing In
re S.B., 11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162, ¶ 119 (GAL fees are litigation
expenses); Brooks v. Brooks, 6th Dist. Fulton No. F-11-020, 2013-Ohio-405, ¶ 24 (expert fees
are litigation expenses). See also Wilson v. Wilson, 9th Dist. Wayne No. 05CA0078,
2008-Ohio-3195, ¶ 13.
{¶18} The importance of the statutory designation of the GAL fees was explained in
Goldberg v. Miller, 371 Md. 591, 810 A.2d 947 (2002). In that case, the Court of Appeals of
Maryland, the highest court in that state, addressed a guardian’s request that the guardian fees be
deemed to be in the nature of child support. The court observed that if it were to do so, the fees
would be exempt from bankruptcy discharge and subject to garnishment so it determined that
clear support in the law was required. The court stated:
Goldberg, however, asks this Court to elevate the status of [GAL] fees to the
highest and most protected status an obligation can hold under the Maryland law,
child support. * * * The obligation to pay child support is exempt from the
Maryland Constitution’s prohibition against imprisonment for debt. Md. Const.
Art. III, § 38. Thus, as with the failure to comply with any equitable order of the
court, failure to comply with a court’s order to pay child support might land the
debtor in jail. * * *
The possibility of receiving such a harsh penalty could lead to unjust
consequences. The first is obvious; for the first time, the award of attorney’s fees
could result in imprisonment of a parent. In addition, if [GAL] fees were
enforceable by contempt like child support, an obligation to pay attorney’s fees
could take precedence over most other financial obligations, one of which might
include supporting dependent children who reside with the obligated parent. If the
legislature intended this collection mechanism to apply to [GAL] fees, it would
have expressly categorized those fees as child support. It did not. We refuse to
create such a preference for [GAL] in the absence of legislative authority.
{¶19} In addition, the Thomas court did not address the fact that neither the Local Rules
of the Cuyahoga County Domestic Relations Court nor the Ohio Rules of Superintendence
authorize treating the GAL expenses as in the nature of child support.
{¶20} Loc.R. 35(E) provides:
(E) Compensation.
[A GAL] shall be compensated at the rate of $125.00 per hour for all reasonable
and necessary time expended.
At the time of the [GAL’s] appointment, the Court shall order one or both of the
parties to post a cash bond with the Clerk of Court, which bond shall not exceed
$1,000.00. In the event the Court determines that the parties are unable to post
such a bond, the Court may issue an order waiving this requirement. The bond
shall be held as security for partial payment of the [GAL] fees and expenses.
Upon motion for [GAL] fees, the Court shall conduct a hearing to determine if the
fee sought by the [GAL] is reasonable and necessary and to determine the amount
each party shall contribute toward the fee. Any order for fees shall include a
direction to the Clerk of Courts to release the bond to the [GAL].
{¶21} Sup.R. 48(C)(3) simply designates the expenses as “fees” and states: “The court
shall make provisions for fees and expenses in the Order.”
{¶22} In any event, we find Thomas, 8th Dist. Cuyahoga Nos. 86375 and 86939,
2006-Ohio-3324, to be distinguishable from the instant matter, as Thomas did not directly
address whether a contempt citation for failure to pay the GAL fees would violate the
constitutional prohibition against imprisonment for a debt. Rather, the Thomas court simply
examined the obligor’s finances, applied the abuse of discretion standard and affirmed the
contempt citation and penalty. The Thomas court stated:
In her second assignment of error, appellant argues that “given the fact that
unassailable proof showed the appellant not only lacked the funds to pay the past
due ‘GAL’ fees, but also showed that she was barely subsisting on welfare (in the
form of food stamps and a section 8 voucher) along with the assistance of her
parents, the sentence imposed herein because of a failure to discharge assessed
GAL fees would, if executed, violate the prohibition against imprisonment for
debt.” Although unclear from her brief, appellant seems to argue that she should
not be responsible for paying the GAL fees because she does not have the money.
We review a contempt holding for failure to pay child support under an abuse of
discretion standard. See State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d
69, 573 N.E.2d 62. Contempt for non-payment of child support is governed by
R.C. 2705.031. Violation of a contempt order may result in a “civil sanction of an
indefinite commitment until the ordered act is performed [and] may be combined
with a criminal sanction of a definite fine and/or jail sentence for the violation of
the order.” In re Caron, 110 Ohio Misc. 2d 58, 744 N.E.2d 787. See also
Cincinnati v. Cincinnati Dist. Council 51 (1973), 35 Ohio St.2d 197, 299 N.E.2d
686. Furthermore, in a contempt action, inability to pay may be raised as an
affirmative defense and must be proven by the accused contemnor. U. S. v.
Rylander (1983), 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521.
In the instant case, appellant asserted that she was not able to pay the GAL fees;
however, the evidence and the court’s findings suggest otherwise. At the July 14,
2005 hearing, the court specifically found that appellant was voluntarily
unemployed and that, despite filing bankruptcy, she recently purchased a new
vehicle along with car insurance. The court then took into consideration
appellant’s earning abilities — she had previously quit her job as a substitute
teacher in the Cleveland school system — and the fact that she had no medical
excuse to keep her from working, concluding that, because appellant had the
ability to pay, it was within her power to comply with the order regarding the
GAL fees.
Appellant’s argument that she was unconstitutionally sentenced to imprisonment
for debt is misleading. Accordingly, we find that the court did not err when it
ordered appellant to serve a 30-day suspended sentence for failing to pay court
assessed GAL fees.
{¶23} In that the Thomas court found that the appellant’s “argument that she was
unconstitutionally sentenced to imprisonment for debt is misleading,” it did not directly address
that issue. We therefore conclude that this matter does not present a direct conflict with
Thomas.
{¶24} Applying all of the foregoing to the instant appeal, we find no abuse of discretion
in connection with the rulings issued in Pappas and Burke.2 In this matter, the agreed entries
simply indicated that the outstanding amounts were in the nature of support, but R.C. 3105.73
designates GAL fees are “litigation expenses,” and neither the Local Rules of Court, nor the
Rules of Superintentendence designate the fees to be in the nature of child support. The court in
both matters was therefore entirely within its broad discretion in refusing to find Pappas and
Burke in contempt of court for nonpayment.
{¶25} Both matters are affirmed.
It is ordered that appellees recover from appellant 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.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
2An appellate court will not reverse an outcome where it agrees with the trial
court’s conclusion but employs a different rationale. State ex rel. Gilmore v.
Mitchell, 86 Ohio St.3d 302, 303, 1999-Ohio-166, 714 N.E.2d 925.