Pendergraft v. Watts

[Cite as Pendergraft v. Watts, 2011-Ohio-5649.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93808
SANDRA L. PENDERGRAFT
PLAINTIFF
[APPEAL BY STATE OF OHIO, CUYAHOGA
SUPPORT ENFORCEMENT AGENCY]
APPELLANT
vs.
MICHAEL WILLIAM WATTS
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-282266
BEFORE: Rocco, J., S. Gallagher, P.J., and Blackmon, J.
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RELEASED AND JOURNALIZED: November 3, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Kestra Smith
Assistant County Prosecutor
C.S.E.A.
P.O. Box 93923
Cleveland, Ohio 44113
BY: Lawrence Rafalski
Joseph C. Young
Assistant County Prosecutors
C.S.E.A.
P.O. Box 93894
Cleveland, Ohio 44101
BY: Mark R. Marshall
Assistant County Prosecutor
C.S.E.A.
P.O. Box 451146
Westlake, Ohio 44145
FOR APPELLEE
Michael William Watts, Pro Se
643 West Hopocan Avenue
Barberton, Ohio 44203
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KENNETH A. ROCCO, J.:
{¶ 1} The state of Ohio, Cuyahoga Support Enforcement Agency
(“CSEA”), appeals from an order of the domestic relations division of the
common pleas court (“the DR court”) that partially granted CSEA’s motion to
show cause, and determined the arrearage due on a previous child support
order. The DR court found that the obligor, defendant-appellee Michael
William Watts, was in arrears in the amount of $5,060.74 and ordered him to
continue to make support payments of $60 per month as well as $40 per
month payments on the arrearage.
{¶ 2} In CSEA’s original appeal from the foregoing order, relying on
Pula v. Pula-Branch, Cuyahoga App. No. 93460, 2010-Ohio-912, (authored by
Christine T. McMonagle, P.J.), this court held that the DR court lacks subject
matter jurisdiction over a UIFSA 1 petition, and therefore vacated the DR
court’s order. Pendergraft v. Watts, Cuyahoga App. No. 93808,
2010-Ohio-3196 (“Pendergraft I”). CSEA appealed this court’s decision in
Pendergraft I to the Ohio Supreme Court. On the authority of its decision in
Pula v. Pula-Branch, 129 Ohio St.3d 196, 2011-Ohio-2896, 951 N.E.2d 72, the
1Uniform Interstate Family Support Act. R.C. Chapter 3115.
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supreme court reversed this court’s decision in Pendergraft I and remanded
for consideration of the merits of CSEA’s appeal.
{¶ 3} CSEA asserts in seven assignments of error that the DR court
abused its discretion when it adopted the magistrate’s decision, because the
magistrate acted improperly, both in failing to find Watts in contempt of court
and in finding him in substantial compliance with the support order. This
court agrees. Consequently, the DR court’s order is reversed, and this case is
remanded for further proceedings.
{¶ 4} The underlying facts of this case were set forth in Pendergraft I,
at ¶2-6 as follows.
{¶ 5} “Sandra L. Pendergraft petitioned the domestic relations division
of the common pleas court in September 2001 to register a North Carolina
child support order for enforcement. The voluntary support order attached
to the petition obligated Watts to pay $60 per month for the support of his
child; the petition indicated that $1,142 was past due pursuant to this order.
Watts did not object to the registration. On December 26, 2001, the domestic
relations court registered the North Carolina order and ordered Watts to pay
current support of $60 per month plus $40 per month toward the arrearage.
{¶ 6} “In September 2005, CSEA filed a motion to show cause why
Watts should not be held in contempt for failure to comply with the support
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order. Watts failed to appear for the magistrate’s hearing on the motion.
The magistrate concluded, based upon an affidavit of arrears submitted by
North Carolina, that the arrearage due on the support order was $5,379.94 as
of November 9, 2005, and found Watts in contempt for failing to pay support
as ordered. No objections to the magistrate’s report were filed. The
domestic relations court adopted the magistrate’s recommendation and
sentenced Watts to 30 days in jail or, in the alternative, not less than 200
hours of community service, but gave him the opportunity to purge his
contempt by paying $500 within 30 days. The court further ordered Watts to
seek employment. After Watts failed to purge his contempt, the court issued a
capias for his arrest. One year later, Watts had not been apprehended and
the court dismissed the capias.
{¶ 7} “In March 2009, CSEA filed another motion to show cause why
Watts should not be held in contempt for failing to pay support. The
magistrate conducted a hearing on this motion on May 28, 2009, at which
Watts again failed to appear. CSEA submitted three exhibits to the court,
[viz.,] a payment receipt calculation, a payment record, and a certified
statement of arrears from North Carolina; the magistrate found these
exhibits to be true. The magistrate concluded that the arrearage reported by
North Carolina was less than the arrearage found in the domestic relations
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court’s 2005 order. The magistrate construed this fact to mean that Watts
had paid all current support due since the prior order. * * * [T]hese payments
were not made through CSEA, they were paid through North Carolina, so the
magistrate concluded that Watts was in substantial compliance with the
support order. Therefore, the magistrate recommended that the domestic
relations court issue an order finding Watts in arrears in the amount of
$5,060.74 as of April 30, 2009, and order him to continue paying current
support of $60 per month plus $40 per month toward the arrearage.”
{¶ 8} The magistrate thus decided CSEA’s motion to show cause was
“granted in part as to the arrearage amount,” but issued no contempt citation
against Watts. No transcript was made of this hearing before the
magistrate.
{¶ 9} CSEA filed objections to the magistrate’s report. In support of
the objections, Lawrence Rafalski, the assistant county prosecutor assigned to
the case to represent CSEA, and who had been present at the hearing before
the magistrate, submitted his affidavit.
{¶ 10} Rafalski averred that he provided to the magistrate, as the first
page of his exhibits, a document entitled, “Statement of fact for show-cause
[hearing] against Michael Watts, D-282266/UIFSA.” Rafalski averred that
the magistrate failed to attach this page to her decision, but the page had
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been filed; thus, it could be found in the court’s file. In pertinent part, this
page noted Watts had “paid nothing through CSEA as of April 30, 2009; and,
therefore, has violated * * * the Court’s last order to pay support.”
{¶ 11} The DR court subsequently overruled CSEA’s objections and
adopted the magistrate’s decision. The DR court granted CSEA’s motion to
show cause “in part,” found Watts to be in arrears in the amount of $5,060.74
as of April 30, 2009, and ordered him to “continue” to pay current support
plus $40 per month toward the arrearage, or be held in “contempt of Court,
punishable by a fine and/or jail sentence.”
{¶ 12} CSEA presents the following seven assignments of error for this
court’s review.
{¶ 13} “I. The trial court abused its discretion in refusing to
find Obligor in contempt of court for failure to comply with its order
to pay child support where the evidence shows Obligor failed to
comply with the court’s order for forty consecutive months, the court
made a specific finding that ‘the evidence shows Obligor made no
payments through CSEA...’, and, the Obligor did not even appear at
the hearing to offer any defense to the contempt charge.
{¶ 14} “II. As the finding of a ‘motion to show cause’ places the
burden on the Obligor cited for contempt to offer a defense to the
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charge of contempt, and as the Obligor herein failed to appear for
hearing on the motion, it was improper for the magistrate to have
‘constructed’ a defense for the benefit of the Obligor in his absence.
It was an abuse of discretion for the trial court to adopt the
magistrate’s decision, because the actions of the magistrate in
producing a defense on behalf of the Obligor may be seen as the
magistrate’s relinquishing of its [sic] responsibilities as a neutral
jurist, to become an advocate for the interests of the Obligor.
{¶ 15} “III. When the Obligor failed to attend a child-support
contempt hearing, the trial court abused its discretion in refusing to
find Obligor in contempt of court for failure to comply with the order
to pay child support, where the court’s order results from the
registration of an out-of-state support order for enforcement
purposes under Chapter 3115 of the Ohio Revised Code, and, the
court specifically finds the Obligor has not obeyed the Ohio order,
but, the statement of net arrears furnished by the originating
jurisdiction shows a reduction in the amount of net arrears since the
previous contempt finding, without disclosing the means by which
the originating jurisdiction obtained the monies applied to the
arrearage.
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{¶ 16} “IV. When the Obligor failed to attend a child-support
contempt hearing, the trial court abused its discretion in refusing to
find Obligor in contempt of court for failure to comply with its
registered interstate support order, and, the court made a specific
finding that the Obligor has not obeyed its order, but, that the
circumstance of a reduction in the net arrears amount since the
previous contempt finding by undisclosed assets attachment in the
originating jurisdiction is deemed to be ‘substantial compliance’ with
the trial court’s order.
{¶ 17} “V. Where an Obligor under a UIFSA interstate
registration of a support order for enforcement purposes fails to
attend his contempt hearing, and the unrefuted evidence shows that
the Obligor failed to comply with the court’s order to pay support for
forty consecutive months since the last prior contempt finding, it is
an abuse of discretion for the trial court to refuse to find Obligor in
contempt, and results in a denial of CSEA’s procedural due-process
rights, by requiring CSEA to perform the ‘vain act’ of continuing to
enforce the court’s support order in the face of the court’s refusal to
find Obligor in contempt despite a clear legal basis to do so.
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{¶ 18} “VI. Where an Obligor under a UIFSA interstate
registration of a support order for enforcement purposes fails to
attend his contempt hearing, and the unrefuted evidence shows that
the Obligor failed to comply with the court’s order to pay support for
forty consecutive months since the last prior contempt finding, a
contempt finding is the only result consistent with such evidence;
and, it is contrary to law for the trial court to consider any other
events occurring outside the court’s jurisdiction as consituting [sic]
‘substantial compliance’ with the order of the trial court to pay
support.
{¶ 19} “VII. Since the motion to show cause filed by CSEA on
March 19, 2009 sought only a finding of contempt, and not a
determination of arrears as its object, it was incorrect as a matter of
law for the court to deem its judgment that Obligor was not in
contempt of court to be a ‘partial’ grant of the motion to show cause.
A motion ‘to show cause’ is not considered ‘granted’ in the absence of
a resulting contempt finding, and, a ‘determination of arrears,’ by
itself, is not to be deemed a ‘partial’ finding of contempt.”
{¶ 20} CSEA argues that the DR court abused its discretion in adopting
the magistrate’s report and recommendation, because the magistrate made
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several errors of law.2 CSEA asserts that since the evidence the magistrate
“found to be true” demonstrated Watts had not complied with the DR court’s
2005 order, the magistrate went beyond her prerogative in finding Watts was
in “substantial compliance” with that order. This court agrees.
{¶ 21} Civ.R. 53(D)(4)(d) provides in pertinent part that if “objections to
a magistrate’s decision are timely filed, the court shall rule on those
objections. In ruling on objections, the court shall undertake an independent
review as to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law.”
(Emphasis added.)
{¶ 22} Contempt is defined as a disregard or disobedience of an order or
command of judicial authority. State v. Flinn (1982), 7 Ohio App.3d 294, 455
N.E.2d 691. With respect to a trial court’s decision on a motion to show
cause why a party should not be held in contempt, an appellate court cannot
reverse unless the trial court abused its discretion. State ex rel. Ventrone v.
Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249. An abuse of discretion
consists of more than an error of judgment; it connotes an attitude on the part
of the trial court that is unreasonable, unconscionable, or arbitrary. Rock v.
2CSEA’s appellate brief complies only minimally with the requirements of
App.R. 16(A)(7); therefore, pursuant to App.R. 12(A)(2), this court will consider
CSEA’s arguments generally.
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Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218. That standard is met in
this case.
{¶ 23} In Strauss v. Strauss, Cuyahoga App. No. 94129, 2010-Ohio-6166,
¶9, this court recently noted as follows:
{¶ 24} “A court may find the offending party in contempt for * * *
indirect actions that constitute disobedience to an order. Pirtle v. Pirtle, 2nd
Dist. No. 18613, 2001-Ohio-1539. * * * [I]ndirect contempt is ‘misbehavior
that occurs outside the actual or constructive presence of the court.’ Id.One accused of indirect contempt is entitled to a ‘hearing on the charge, at
which the court must investigate the charge, hear any answer or testimony
that the accused makes or offers, and then determine whether the accused is
guilty.’ Id.” (Emphasis added.)
{¶ 25} If the moving party establishes by clear and convincing evidence
that a valid court order existed, that the person had knowledge of the order,
and that the person violated the order, the trial court should make a
contempt finding so that the orderly administration of justice may proceed.
Hueber v. Hueber, Clermont App. Nos. CA2006-01-004, CA2006-02-019,
CA2006-02-020, 2007-Ohio-913. “Clear and convincing evidence is that
which will produce in the mind of the trier of fact a firm belief or conviction as
to the facts sought to be established.” Id. at ¶16.
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{¶ 26} The movant need not prove that the contemnor’s violation was
either purposeful, willing, or intentional. Pugh v. Pugh (1984), 15 Ohio St.3d
136, 472 N.E.2d 1085. Indeed, “it is irrelevant that the transgressing party
does not intend to violate the court order. If the dictates of the judicial decree
are not followed, a contempt violation will result.” Id. at 140, 472 N.E.2d
1085. (Emphasis added.) Once the movant establishes a prima facie case of
contempt, the burden then shifts to the contemnor to prove his inability to
comply with the court order. Keeley v. Keeley (July 21, 1997), Clermont App.
No. CA97-02-013.
{¶ 27} “[If] contempt proceedings are invoked solely by the person
aggrieved by disobedience of the court’s order, a refusal to punish for
contempt is largely within the discretion of the trial court[.]” Akin v. Akin,
Summit App. Nos. 25524 and 25543, 2011-Ohio-2765, at ¶44, quoting
Thomarios v. Thomarios, Summit App. No. 14232. Thus, if the court decides
the accused is guilty, the court may or may not further decide to impose a
sanction for the misbehavior. However, “punishment is inherent in
contempt.” Strauss, ¶10.
{¶ 28} In this case, CSEA’s motion to show cause why Watts should not
be held in contempt alleged that Watts failed to comply with the DR court’s
December 2005 order. The record reflects the December 2005 order required
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Watts to make monthly payments, specifically stated that “[a]ll support shall
be paid through the Ohio Support Payment Central (OCSPC),” and
specifically further stated that, “[a]ny payments not made through OCSPC
shall not be considered as payment of support.” (Emphasis added.)
{¶ 29} Watts did not appear at the show cause hearing, so Watts did not
present any evidence in his defense. CSEA’s exhibits demonstrated Watts
made no payments of the court-ordered amounts between December 1, 2005
through May 1, 2009.
{¶ 30} Nevertheless, despite the language of the December 2005 order,
despite declaring that the exhibits offered by CSEA at the hearing were
“found to be true,” and despite Watts’s failure to appear and to present any
evidence on his own behalf, the magistrate determined that, since the North
Carolina statement of Watts’s arrears showed a $319.20 “reduction in the
arrearage amount” from the prior order, this fact meant “that all current
support due * * * has been paid.” In the very next sentence, the magistrate
stated that “[t]he evidence shows that Obligor made no payments through
CSEA.” (Emphasis added.)
{¶ 31} Lacking evidence demonstrating that Watts’s arrearage reduction
was made through the OCSPC, the magistrate’s determination was contrary
to the DR court’s own previous order. The evidence demonstrated Watts
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made no payments through any Ohio agency, so the magistrate’s order to him
to “[c]ontinue to pay” his child support made little sense. Moreover, Watts’s
failure even to appear at the hearing was an additional indication of the
disregard he had for the court. Yet, the magistrate failed to take any of this
into her consideration of CSEA’s motion.
{¶ 32} The Ohio Supreme Court has defined contempt as conduct that
either brings the administration of justice into disrespect, or that tends to
embarrass, impede, or obstruct a court in the performance of its functions.
Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815,
paragraph one of the syllabus. An order making a finding of civil contempt
is meant to coerce the offending party to comply with the court’s orders.
Oatey v. Oatey (Feb. 6, 1997), Cuyahoga App. No. 70630.
{¶ 33} A sanction for civil contempt allows the contemnor to purge
himself of the contempt. Tucker v. Tucker (1983), 10 Ohio App.3d 251, 461
N.E.2d 1337. Once the contemnor complies with the court’s order, the
purpose of the contempt sanction has been achieved and the sanction is
discontinued. Cleveland v. Ramsey (1988), 56 Ohio App.3d 108, 110, 564
N.E.2d 1089.
{¶ 34} Since the record of this case demonstrates Watts ignored the DR
court’s previous finding of contempt, disregarded its previous order to make
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support payments through the Ohio agency, and made no effort to appear to
explain any of his actions, the magistrate improperly determined both that he
was in “substantial compliance” and that his inaction did not warrant any
sanction. Under these circumstances, the DR court’s adoption of the
magistrate’s decision constituted an abuse of discretion.
{¶ 35} CSEA’s assignments of error are sustained.
{¶ 36} The DR court’s order is reversed, and this case is remanded for
further proceedings consistent with this opinion.
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.
______________________________
KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR