Siegel v. Bridewell ( 2012 )

[Cite as Siegel v. Bridewell, 2012-Ohio-797.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
KIMBERLY LEE SIEGEL, :
:
Plaintiff-Appellee, : Case No. 11CA3255
:
vs. : Released: February 24, 2012
:
GEORGE W. BRIDEWELL, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
George W. Bridewell, Chillicothe, Ohio, Appellant, pro se.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl
Brown, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee, Kimberly Lee Siegel.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry establishing a parent-child relationship between Appellant
and his minor child, and ordering child support. On appeal, Appellant
contends that 1) the trial court abused its discretion and went against the
sufficiency of the evidence when calculating his income for child support
purposes; 2) he was denied due process of law when the trial court held a
hearing to set a child support obligation without giving proper notice to all
parties; 3) the trial court abused its discretion by setting a retroactive support
Ross App. No. 11CA3255 2
order; and 4) the trial court committed plain error and abused its discretion
in failing to designate which party was eligible to claim the allocation for the
dependency exemption for all tax years.
{¶2} We have determined under Appellant’s second assignment of
error that Appellant did not receive proper notice of the hearing on child
support. As such, we sustain Appellant’s second assignment of error and
remand this matter to the trial court to provide proper notice and a re-hearing
on that issue. In light of our disposition of Appellant’s second assignment of
error, Appellant’s remaining assignments of error, all of which are based
upon the child support order, have been rendered moot. Accordingly, the
decision of the trial court, as to the issue of child support, is reversed and
this matter is remanded for further proceedings consistent with this opinion.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION AND WENT
AGAINST THE SUFFICIENCY OF THE EVIDENCE WHEN
CALCULATING THE DEFENDANT’S INCOME FOR CHILD
SUPPORT PURPOSES.
II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW,
WHEN THE COURT HELD A HEARING TO SET CHILD
SUPPORT OBLIGATION [SIC] WITHOUT GIVING PROPER
NOTICE TO ALL PARTIES.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY
SETTING A RETROACTIVE SUPPORT ORDER.
Ross App. No. 11CA3255 3
IV. THE TRIAL COURT COMMITTED PLAIN ERROR AND
ABUSED ITS DISCRETION, IN FAILING TO DESIGNATE
WHICH PARTY WAS ELIGIBLE TO CLAIM THE
ALLOCATION FOR THE DEPENDENCY EXEMPTION FOR
ALL TAX YEARS.
LEGAL ANALYSIS
{¶3} For ease of analysis, we address Appellant’s assignments of error
out of order. In his second assignment of error, Appellant contends that he
was denied due process of law when the trial court held a hearing to set child
support without giving him proper notice. Specifically, Appellant contends
that he was only provided with notice of the May 12, 2011, hearing to the
extent that it was to be a hearing on the genetic test results, an issue to which
he did not plan to object. However, he claims he received no notice that the
hearing would also address the issue of child support, an issue to which he
planned to object, as he was and still is serving a prison term. Appellee
concedes the notice of hearing provided by the trial court did not state the
matter would cover the establishment of child support. As such, Appellee
does not object to a remand of the matter to the trial court in order to provide
Appellant an opportunity to be heard on the issue of the establishment of
child support.
{¶4} A review of the record indicates that this matter originated with
the filing of a child support enforcement transmittal pursuant to the Uniform
Ross App. No. 11CA3255 4
Interstate Family Support Act (“UIFSA”) seeking to establish paternity and
child support. Chapter 3115 of the Revised Code deals with UIFSA and in
3115.55(A) provides that “[a]ny action or proceeding brought pursuant to
sections 3115.01 to 3115.59 of the Revised Code is a civil action and shall
be governed by the Rules of Civil Procedure * * *.” R.C. 3115.55(B)
further provides that an action under section 3115.31 of the Revised Code to
establish support “is an original action and shall be governed by the Rules of
Civil Procedure.” Thus, we look to the Rules of Civil Procedure to
determine whether Appellant received proper notice of the hearing on the
issue of child support. Civ. R. 5 governs service and filing of pleadings and
other papers subsequent to the original complaint. Civ.R. 5(A) provides that
“every written notice, appearance, demand, offer of judgment, and similar
paper shall be served upon each of the parties.”
{¶5} On September 9, 2010, an order to show cause under the
Uniform Interstate Family Support Act was filed ordering Appellant to
appear on November 18, 2010, and show cause why an order should not be
made directing him to pay, under UIFSA, such sums as the court may
determine for support the minor child. Appellant received notice of this
hearing but did not appear. It was determined at the November 18, 2010,
hearing that the proof necessary to adjudicate paternity was not available and
Ross App. No. 11CA3255 5
as such, the parties were ordered to submit to genetic testing. The
“Judgment Entry for Genetic Testing” was filed on January 7, 2011, and
provided that “[t]his matter will be set for further hearing upon the filing of
the results of the genetic testing.”
{¶6} The DNA test results were made a part of the record via a notice
of filing on March 22, 2011. Subsequently, the trial court scheduled “a
hearing on the D.N.A. test results” on May 12, 2011, and this notice of
hearing was provided to Appellant, though he did not appear at that hearing.
At the May 12, 2011, hearing the magistrate established a parent-child
relationship between Appellant and the minor child at issue and also
established a minimum child support order of $50.00 per month. Appellant
subsequently filed objections to the magistrate’s decision on June 13, 2011.1
Therein, Appellant specifically raised the issue of notice with respect to the
establishment of child support. However, on June 14, 2011, the trial court
issued a judgment entry which was essentially identical to the magistrate’s
earlier decision.
{¶7} “Due process of law requires that every party to an action be
afforded ‘a reasonable opportunity to be heard after a reasonable notice of
such hearing.’ Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp.
1
Appellant’s objections to the magistrate’s decision were titled “Motion to Set Aside Order.”
Ross App. No. 11CA3255 6
Assn. (1986), 28 Ohio St.3d 118, 125, 502 N.E.2d 599.” Neace v. Neace,
Scioto App. No. 02CA2824, 2003-Ohio- 276 at ¶ 15. “ ‘The issue of what
constitutes reasonable notice is left for a case-by-case analysis.’ ” Id.; citing
Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio
App.3d 436, 443, 629 N.E.2d 1057. Generally, the notice satisfies due
process requirements as long as it is “ ‘reasonably calculated to give actual
notice.’ ” Id.; citing Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 413
N.E.2d 1182, paragraph two of the syllabus.
{¶8} As stated, Appellant did receive notice in accordance with the
Civil Rules of Procedure of the May 12, 2011, hearing. However, the
hearing notice represented that it was a hearing on the D.N.A. test results.
There was no indication from the notice that the issue of child support would
be addressed at the hearing. Thus, we find a substantive problem with the
notice that was provided to Appellant. As such, we conclude that the
hearing notice at issue was not reasonably calculated to give actual notice of
the fact that child support would be determined at the hearing and therefore
did not afford Appellant due process of law.
{¶9} In light of the foregoing, as well as Appellee’s candid concession
related to this error, we reverse the decision of the trial court as to the issue
of child support and remand this matter for further proceedings consistent
Ross App. No. 11CA3255 7
with this opinion. Further, as Appellant’s remaining assignments of error all
stem from the child support order, they have been rendered moot.
JUDGMENT REVERSED IN PART AND REMANDED.
Ross App. No. 11CA3255 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED IN PART AND
REMANDED and that the Appellant recover of Appellee costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J. and Harsha, J.: Concurs in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.