State ex rel. Stevenson v. Thomas

[Cite as State ex rel. Stevenson v. Thomas, 2012-Ohio-5077.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98377
STATE OF OHIO C.S.E.A., EX REL.,
DAVIS STEVENSON
PLAINTIFF-APPELLANT
vs.
DWAYNE THOMAS
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. PR 94771807
BEFORE: Boyle, P.J., Cooney, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEYS FOR APPELLANT
For Cuyahoga Support Enforcement Agency
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant County Prosecutor
C.S.E.A.
P.O. Box 93894
Cleveland, Ohio 44101-5984
For Davis Stevenson
Davis Stevenson, pro se
13660 Fairhill Road, #205
Cleveland, Ohio 44120
FOR APPELLEE
Dwayne Thomas, pro se
3010 East 130th Street
Cleveland, Ohio 44120
MARY J. BOYLE, P.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Appellant, Cuyahoga County Child Support Enforcement Agency (“CSEA”),
appeals from a juvenile court judgment vacating a prior judgment where it had found
appellee Dwayne Thomas, the obligor, in contempt. CSEA raises one assignment of
error for our review:
The trial court erred and abused its discretion by sua sponte vacating a prior journal
entry in contempt based on its finding that obligor had satisfied the purge
conditions contained within the journal entry in contempt.
{¶3} We find merit to CSEA’s argument and reverse and remand.
Procedural History and Factual Background
{¶4} In May 2010, CSEA filed a motion to show cause against obligor, alleging
that he had failed to comply with an order requiring him to pay $190.66 plus 2 percent per
month on arrears and $34.67 plus 2 percent per month on previously established judgments.
A summons was issued ordering obligor to appear for a hearing on the motion to show
cause. Obligor failed to appear for the hearing, and a capias was issued.
{¶5} Obligor was arrested and brought before the court in July 2011. A
magistrate found obligor in contempt of court for failure to pay child support as ordered.
In the magistrate’s decision, the magistrate found that obligor owed $19,832.02 in arrears
and noted that all prior orders were superseded by this entry. The magistrate sentenced
obligor to 60 days in jail and then suspended the sentence. The magistrate ordered
obligor to pay $229.84 per month, plus a 2 percent processing fee, toward the arrearage.
The magistrate notified obligor that he could purge his contempt by voluntarily paying
$1,000 plus a 2 percent processing fee through CSEA within 120 days. The magistrate
further ordered obligor to pay costs. A purge-review hearing was set for April 2012.
The trial court adopted the magistrate’s decision and entered its judgment on August 17,
2011.
{¶6} According to the transcript, obligor failed to appear for the purge-review
hearing.1 CSEA informed the court that obligor paid $732, not $1,000, in the 120-day
period following the contempt order. CSEA further informed the court that a wage
withholding order took effect at the end of September 2011. Since then, obligor had been
paying his monthly obligation toward the arrearage.
{¶7} Based on CSEA’s testimony, the trial court found that obligor had complied
with the purge conditions set forth in the judgment entry of contempt and, thus, had purged
his contempt. The trial court then vacated the August 17, 2011 judgment entry of
contempt.
1
At oral argument before this court, however, obligor stated that he was at the purge hearing.
Vacating a Final Order
{¶8} In its sole assignment of error, CSEA argues that the trial court erred when it
vacated the judgment entry of contempt. It maintains that the judgment entry of
contempt was a final order and, thus, the trial court had no power to vacate it. We agree.
{¶9} This court explained in Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist.
No. 96726, 2011-Ohio-6437, ¶ 7:
[A]s a general rule, a trial court has no authority to vacate or modify
its final orders sua sponte. Prior to the adoption of the Ohio Rules of Civil
Procedure, trial courts possessed the inherent power to vacate their own
judgments. Since the adoption of the Civil Rules, however, Civ.R. 60(B)
provides the exclusive means for a trial court to vacate a final judgment.
(Internal citations omitted.)
{¶10} Civ.R. 60(B) states:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule 59(B); (3)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or (5) any other
reason justifying relief from the judgment. The motion shall be made
within a reasonable time, and for reasons (1), (2) and (3) not more than one
year after the judgment, order or proceeding was entered or taken. A
motion under this subdivision (B) does not affect the finality of a judgment
or suspend its operation.
{¶11} Civ.R. 60(A) authorizes a trial court to modify its judgments sua sponte
without any notice to the parties. But Civ.R. 60(A) permits a court to correct only
clerical mistakes arising from an oversight or omission.
{¶12} The trial court’s judgment finding obligor in contempt and imposing a
sentence was a final judgment. See Kapadia v. Kapadia, 8th Dist. No. 96910,
2012-Ohio-808, ¶ 3-5 (an order containing both a finding of contempt and imposition of a
sentence, even if provided the opportunity to purge the sentence, is a final order). Thus,
we agree with CSEA that the trial court had no authority to vacate or modify its prior
judgment entry of contempt. The judgment entry of contempt could only be vacated or
modified in conformity with Civ.R. 60(B).
{¶13} We note that although the trial court could not vacate the judgment entry of
contempt, it could find in a separate order that obligor had purged his contempt based on
the testimony provided by CSEA at the April 2012 hearing.
{¶14} CSEA’s sole assignment of error is sustained.
{¶15} Judgment reversed, and case remanded to the lower court to reinstate the
August 17, 2011 final judgment.
It is ordered that appellant recover from appellee 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 J. BOYLE, PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY