McCombs v. Blackert

[Cite as McCombs v. Blackert, 2011-Ohio-5079.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY

SHELLEY A. MCCOMBS, ET AL.,

PLAINTIFFS-APPELLEES, CASE NO. 3-11-03

v.

WILLIAM BLACKERT, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court
Juvenile Division
Trial Court No. I 223154

Judgment Affirmed

Date of Decision: October 3, 2011

APPEARANCES:

Shane M. Leuthold for Appellant

Stanley E. Flegm and Michael J. Wiener for Appellee
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PRESTON, J.

{¶1} Defendant-appellant, William Blackert, Jr. (“Blackert”), appeals the

Crawford County Court of Common Pleas’ judgment entry denying his Civ.R.

60(B) motion and finding him in contempt for failing to pay child support as

ordered. We affirm.

{¶2} In April 1999, plaintiff-appellee, Shelley A. McCombs (“McCombs”),

gave birth to a baby girl, Harley M. Blackert (“Harley”). (Doc. No. 1). Blackert

acknowledged that he was Harley’s father. (Id.).

{¶3} On August 27, 2002, plaintiff-appellee, Crawford County Department

of Job and Family Services (“CCDJFS”), administratively ordered Blackert to pay

child support to McCombs. (Id.).

{¶4} On September 19, 2002, CCJDFS filed a registration of administrative

order of child support with the trial court seeking ratification of the same by the

trial court. (Id.). On September 20, 2002, the trial court ratified the administrative

child support order, making the child support order an order of the court pursuant

to R.C. 3111.84. (Doc. No. 2).

{¶5} On February 12, 2004, an agreed judgment entry was filed, which

stated that the parties were reconciled, living together, and that McCombs no

longer required child support from Blackert. (Doc. No. 9). The trial court ordered

that McCombs be granted judgment against Blackert in the amount of $3,131.93

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for the child support arrearage as of June 24, 2003, but the trial court suspended

the collection and the accrual of interest on the arrearage. (Id.). The trial court

further ordered that the abatement and suspension of Blackert’s child support

obligation should remain in effect until: (1) McCombs should ask for services

from CCDJFS Child Support Enforcement Agency (“CSEA”) as a result of

Blackert no longer being in the home; or (2) McCombs should receive public

assistance and Blackert is not reported to CCDJFS as being in the home. (Id.).

{¶6} On March 24, 2008, the trial court filed an entry reinstating Blackert’s

child support obligation, effective February 13, 2008, because CSEA informed the

trial court that McCombs requested their services. (Doc. No. 10).

{¶7} On July 6, 2009, CSEA filed a motion for contempt citation with the

trial court, alleging that Blackert had failed to pay child support and seek work as

ordered by the trial court. (Doc. No. 11).

{¶8} On February 9, 2010, the matter came on for hearing. (Doc. No. 87).

Blackert requested appointed counsel, but the magistrate denied the request. (Id.).

The magistrate, however, granted Blackert a continuance to hire an attorney. (Id.).

The magistrate scheduled a hearing for March 30, 2010. (Id.).

{¶9} On March 29, 2010, Blackert filed a motion to vacate the trial court’s

March 24, 2008 entry reinstating his child support obligation. (Doc. No. 26). The

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magistrate, thereafter, ordered that the March 30th hearing would be a pre-trial

hearing. (Doc. No. 27).

{¶10} On July 7, 2010, a hearing was held on Blackert’s motion to vacate

and CSEA’s contempt motion. (Doc. No. 30). On September 2, 2010, the

magistrate issued a decision denying the motion to vacate and granting the

contempt motion. (Id.). The magistrate sentenced Blackert to serve thirty (30)

days in jail but allowed Blackert the opportunity to purge the contempt finding and

avoid jail if he paid his child support and sought out work as previously ordered.

(Id.). The magistrate’s decision was adopted and signed by the trial court judge.

(Id.).

{¶11} On September 15, 2010, Blackert filed an objection to the

magistrate’s decision and request for additional time to submit supplemental

objections. (Doc. No. 31). Blackert filed the supplemental objections on

September 29, 2010 as permitted by the trial court. (Doc. Nos. 32-33).

{¶12} On January 6, 2011, the trial court overruled Blackert’s objections

and adopted and approved the magistrate’s decision unmodified. (Doc. No. 34).

{¶13} On January 31, 2011, Blackert filed a notice of appeal. (Doc. No.

35). Blackert now appeals raising four assignments of error for our review. We

elect to address Blackert’s assignments of error out of the order presented in his

brief and to combine several assignments of error together for analysis.

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ASSIGNMENT OF ERROR NO. IV

THE COURT ERRED BY REACTIVATING THE SUPPORT
ORDER WITHOUT A PROPERLY FILED MOTION.

{¶14} In his fourth assignment of error, Blackert argues that the trial court

erred by reactivating his child support obligation, because CSEA never filed a

motion with the trial court. This argument, however, was not presented as an

objection to the magistrate’s decision for the trial court to rule upon. Therefore,

Blackert has waived all but plain error for appeal purposes. Juv.R. 40(D)(3)(b)(iv).

Blackert fails to argue plain error on appeal, and as such, we decline to address

this assignment of error further. App.R. 12(A)(2); App.R. 16(A).

{¶15} Blackert’s fourth assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY FINDING THAT GOOD
SERVICE HAD BEEN PERFECTED ON THE APPELLANT
TO REACTIVATE HIS CHILD SUPPORT ORDER.

{¶16} In his third assignment of error, Blackert argues that the trial court

erred by finding that he had service of the entry reactivating his child support

obligation. Specifically, Blackert contends that he was never served in

accordance with Civ.R. 4.1. This argument lacks merit, however. Civ.R. 4.1 only

governs the service of the original complaint in an action. Nalbach v. Cacioppo,

11th Dist. No. 2001-T-0062, 2002-Ohio-53, at *5. A trial court’s judgment entries

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can be served upon the parties through the regular mail to the party’s last known

address pursuant to Civ.R. 5(B). Id. Civ.R. 5(B) expressly provides that service

by mail is deemed completed once the clerk has mailed the document. Id., citing

Warren-Niles Republic Credit Union v. Semer (Dec. 4, 1987), 11th Dist. No. 3782.

The clerk sub judice certified that the March 24, 2008 judgment entry reactivating

the child support obligation was sent to 475 Portland Way N., Galion, OH

44833—Blackert’s last known address—the same day as the judgment entry was

issued. (Doc. No. 10); (July 20, 2010 Tr. at 18). Therefore, pursuant to Civ.R.

5(B), service of the judgment entry reactivating the child support order was

complete as of March 24, 2008.

{¶17} Blackert’s third assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO VACATE THE ENTRY REACTIVATING
APPELLANT’S CHILD SUPPORT ORDER.

{¶18} In his first assignment of error, Blackert argues that the trial court

erred by denying his motion to vacate the entry reactivating his child support order

because: (1) CSEA never filed a motion to reactivate the child support order; (2)

he never received service of the reactivated support order in accord with Civ.R.

4.1; and (3) McCombs intentionally misrepresented to him that she would not

pursue government assistance if he continued to give her money.

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{¶19} In order to prevail on a motion brought pursuant to Civ.R. 60(B),

“the movant must demonstrate that: (1) the party has a meritorious defense or

claim to present if relief is granted; (2) the party is entitled to relief under one of

the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2),

or (3), not more than one year after the judgment, order or proceeding was entered

or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d

146, 351 N.E.2d 113, at paragraph two of the syllabus. All three elements must be

established, and the test is not met if any one of these requirements is missing.

ABN AMRO Mtge. Group, Inc. v. Jackson, 159 Ohio App.3d 551, 2005-Ohio-297,

824 N.E.2d 600, ¶11.

{¶20} “A motion for relief from judgment under Civ.R. 60(B) is addressed

to the sound discretion of the trial court, and that court’s ruling will not be

disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan

(1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An abuse of discretion constitutes

more than an error of judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.

{¶21} Upon review of the record, we cannot find that the trial court abused

its discretion by denying Blackert’s Civ.R. 60(B) motion. To begin with, Blackert

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never identified which Civ.R. 60(B) ground(s) he sought relief under in his motion

or at the hearing. (Doc. No. 26); (July 20, 2010 Tr. at passim). Additionally,

Blackert’s motion was untimely with respect to Civ.R. 60(B)(1), (2), and (3) since

the judgment entry from which Blackert sought relief was filed more than one year

prior to his motion. (Doc. Nos. 10, 26). Civ.R. 60(B)(4) is inapplicable.

Therefore, Blackert’s motion to vacate could only be predicated upon Civ.R.

(B)(5)’s provision allowing “any other reason justifying relief from the judgment.”

{¶22} The reasons offered by Blackert, however, fail to justify relief from

the trial court’s judgment. As we already mentioned, Blackert never argued the

fact that CSEA failed to file a motion with the trial court to reinstate his child

support obligation, so this reason need not be considered on appeal. As we also

stated above, Civ.R. 4.1 was not applicable for service of the trial court’s

judgment entry. Blackert was properly served under Civ.R. 5(B) by ordinary mail

to his last known, recorded address on the date of the judgment entry, March 24,

2008. (Doc. No. 10); (July 20, 2010 Tr. at 18). Furthermore, “[a] party bears the

burden of formally notifying the court of a change of address; the clerk is not

charged with the duty of perusing the record to ensure that a party’s mailing

address has not changed.” Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-

5863, 846 N.E.2d 878, ¶11, citing Bartholomew Builders, Inc. v. Spiritos, 11th

Dist. No. 2003-T-0027, 2005-Ohio-1900, ¶24, citing Nalbach, 2002-Ohio-53, at

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*6. R.C. 3121.29 also served as notice to Blackert of his statutory duty to report

any change of addresses to CSEA. Blackert admitted that he failed to provide his

updated address to CSEA or the court. (July 20, 2010 Tr. at 14).

{¶23} McCombs and Blackert had an on-again-off-again relationship. The

parties stipulated at the hearing that Blackert: left the residence on February 29,

2008 and returned on June 13, 2008; left the residence on August 29, 2008 and

returned on November 26, 2008; left in March 2009 and returned in May 2009;

left on September 28, 2009 and returned on November 24, 2009; and left the

residence permanently on June 1, 2010. (July 20, 2010 Tr. at 3-4, 17). McCombs

applied for public assistance on February 13, 2008, which was right around the

time Blackert left the residence for the first recorded time since the agreed upon

judgment entry. (July 20, 2010 Tr. at 3, 16-17). Despite the parties’ on-again-off-

again relationship, Blackert had notice from the February 12, 2004 agreed

judgment entry that his child support obligation could be reinstated if McCombs

sought public assistance. (Doc. No. 9). Blackert’s child support obligation was not

contingent upon any side agreement he may or may not have had with McCombs.

Furthermore, Civ.R. 60(B) relief is equitable in nature. Starr v. Starr (Feb. 26,

1999), 2nd Dist. No. 17341, at *1. Equity regards the best interest of the parties’

child as paramount and having a child support order in place is in the best interest

of the child, especially given the on-again-off-again status of the parties’

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relationship. Blackert, not the public generally, has a legal and moral obligation to

support his child financially. Considering all the foregoing, we cannot conclude

that the trial court abused its discretion by denying Blackert’s motion to vacate.

{¶24} Blackert’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BY FINDING THE
APPELLANT IN CONTEMPT FOR FAILURE TO PAY
SUPPORT WHEN THE APPELLANT DID NOT KNOW
THAT HIS SUPPORT ORDER HAD BEEN REACTIVATED.

{¶25} In his second assignment of error, Blackert argues that he could not

be found in contempt for failure to pay child support, because he was not served

with the judgment entry reactivating his child support obligation in conformity

with Civ.R. 4.1. We disagree.

{¶26} A trial court has inherent authority to enforce its prior orders through

contempt. Dozer v. Dozer (1993), 88 Ohio App.3d 296, 302, 623 N.E.2d 1272.

See, also, R.C. 2705.02(A). “It is essential to the punishment of a person for

contempt for violation of a court’s order, that he have notice of the order, either

actual or by service of the same upon him.” Beach v. Beach (1946), 79 Ohio App.

397, 405, 74 N.E.2d 130 (emphasis added). An appellate court reviews a civil

contempt finding under an abuse of discretion standard. State v. Moody (1996),

116 Ohio App.3d 176, 181, 687 N.E.2d 320. See, also, Webb v. Webb, 3d Dist.

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Nos. 9-06-70, 9-07-04, 2007-Ohio-5625, ¶25; Stuber v. Stuber, 3d Dist. No. 1-02-

65, 2003-Ohio-1795, ¶19.

{¶27} Blackert stipulated at the hearing that, since March 24, 2008, he had

failed to pay child support and seek work as ordered. (July 20, 2010 Tr. at 4).

Blackert, however, alleged that he did not have knowledge of the trial court’s

reinstated orders since he was not served with the same in accordance with Civ.R.

4.1. That argument is meritless since service of the trial court’s judgment entry

(containing the reinstated orders) may be made by regular mail as prescribed in

Civ.R. 5(B). The judgment entry was never returned to the trial court as

undeliverable. (Sept. 2, 2010 Magistrate Decision, Doc. No. 30); (Jan. 6, 2011 JE,

Doc. No. 34). Since the judgment entry reactivating the child support obligation

was served upon Blackert in accordance with Civ.R. 5(B), Blackert had

knowledge of the trial court’s order. Since Blackert had knowledge of the trial

court’s orders, via service of the same, and stipulated to the violation of those

orders, the trial court did not abuse its discretion by finding Blackert in contempt.

{¶28} Blackert’s second assignment of error is, therefore, overruled.

{¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed
SHAW, J., concurs.
WILLAMOWSKI, J., concurs in judgment only.

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