Liming v. Damos

[Cite as Liming v. Damos, 2011-Ohio-2726.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

MICHAEL LIMING, : Case No. 10CA39
:
Plaintiff-Appellant, :
: DECISION AND
v. : JUDGMENT ENTRY
:
DENDAY DAMOS (fka LIMING), :
: RELEASED 05/27/11
Defendant-Appellee. :

______________________________________________________________________
APPEARANCES:

Timothy Young, Ohio State Public Defender, and E. Kelly Mihocik, Assistant Ohio State
Public Defender, Columbus, Ohio, for appellant.

Keith M. Wiens, Athens County Child Support Enforcement Agency, Athens, Ohio, for
Athens County Child Support Enforcement Agency.
______________________________________________________________________
Harsha, P.J.

{¶1} As a condition of his divorce, a court ordered Michael Liming to pay child

support for his two minor children. After Liming missed payments, the Athens County

Child Support Enforcement Agency (CSEA) asked the court to find him in contempt. At

a hearing where Liming had counsel, the trial court found him in contempt and

sentenced him to 30 days in jail. However, the court suspended the sentence and gave

Liming an opportunity to purge the contempt if he met certain conditions. Later, CSEA

alleged that Liming failed to comply with those conditions and asked the court to impose

the previously suspended sentence. At the “purge hearing,” the court denied Liming’s

request for court-appointed counsel, found that Liming failed to purge the contempt

order, and ordered Liming to serve ten days of his 30 day suspended sentence. Liming

now appeals the trial court’s denial of his request for counsel.
Athens App. No. 10CA6 2

{¶2} Liming contends that he had a right to counsel at the purge hearing under

the Sixth Amendment to the United States Constitution and Section 10, Article I of the

Ohio Constitution. However, the purge hearing constituted a civil proceeding, not a

criminal proceeding, rendering these constitutional provisions inapplicable. Therefore,

we reject this argument.

{¶3} Liming also contends that indigent civil contemnors who were represented

by counsel at the time they were found in contempt have a procedural due process right

to counsel at purge hearings under the Fourteenth Amendment to the United States

Constitution and Section 16, Article I of the Ohio Constitution. However, a civil

contemnor has a diminished liberty interest at a purge hearing because the trial court

previously found him in contempt and imposed an appropriate sanction, which it simply

deferred by conditioning his freedom on compliance with the court’s order. Moreover,

requiring the government to provide counsel at all purge hearings would impose fiscal

and administrative burdens on the state while there is little risk of erroneous decisions

when the only remaining issue is the limited question of whether the contemnor purged

the contempt. Balancing these interests, we decline to create a categorical rule

requiring the state to provide indigent civil contemnors, who were represented by

counsel at their contempt hearing, with appointed counsel at purge hearings.

I. Facts

{¶4} Liming and Denday Damos married in 1993 and had two children. When

the couple divorced in 2005, the court named Damos the legal custodian and residential

parent of the children and ordered Liming to pay child support. In 2008, CSEA filed

motions asking the court to find Liming in contempt for among other things, falling
Athens App. No. 10CA6 3

behind in his child support payments. Liming appeared at the contempt hearing

represented by counsel. The magistrate recommended that the trial court hold him in

contempt, sentence him to 30 days in jail, suspend the sentence, and give Liming an

opportunity to purge the contempt by complying with certain conditions for one year,

such as paying his monthly child support obligation on time and making payments

towards the arrearage each month. Liming did not file objections to the magistrate’s

decision, and the trial court adopted the decision.

{¶5} In 2009, CSEA claimed that Liming failed to purge the contempt and

asked the court to impose the previously suspended jail sentence. At the “purge

hearing” on the motion, the court denied Liming’s request for appointed counsel. The

court found that Liming did not pay his current child support obligation or arrearage

obligation in March, May, August, October, and December 2009. The court also found

that he failed to pay his arrearage obligation from January to May 2010. The court

ordered Liming to serve ten days of the suspended sentence and continued to suspend

the remaining 20 days of the sentence so long as Liming complied with certain

conditions. This appeal followed.

II. Assignments of Error

{¶6} Liming assigns two errors for our review:

The trial court violated Mr. Liming’s right to counsel when it refused to
appoint Mr. Liming an attorney to represent him at a hearing in which a jail
sentence was imposed. Sixth and Fourteenth Amendments to the United
States Constitution; Sections 10 and 16, Article I of the Ohio Constitution
(July 28, 2010 Judgment Entry on Motion to Impose; Tr. 4.)

Because the June 2010 hearing to impose sentence was criminal in
nature, Mr. Liming was entitled to counsel. The trial court erred when it
refused to appoint Mr. Liming counsel for that hearing. Sixth and
Fourteenth Amendments to the United States Constitution; Sections 10
Athens App. No. 10CA6 4

and 16, Article I of the Ohio Constitution (July 28, 2010 Judgment Entry on
Motion to Impose; Tr. 4.)

III. Constitutional Right to Appointed Counsel

{¶7} In his first and second assignments of error, Liming contends that he had

a right under the federal and state constitutions to appointed counsel at the purge

hearing. Liming cites the Sixth Amendment to the United States Constitution (made

applicable to the states through the Fourteenth Amendment) and Section 10, Article I of

the Ohio Constitution as a basis for this right. The Sixth Amendment guarantees that

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the

Assistance of Counsel for his defence.” Section 10, Article I of the Ohio Constitution,

which outlines the rights of criminal defendants, provides: “In any trial, in any court, the

party accused shall be allowed to appear and defend in person and with counsel[.]”

Therefore, we must initially determine whether the purge hearing constituted a civil or

criminal proceeding. We begin our analysis with an examination of the underlying

finding of contempt.

{¶8} “Contempt is a disregard of, or disobedience to, the orders or commands

of judicial authority.” McClead v. McClead, Washington App. No. 06CA67, 2007-Ohio-

4624, at ¶32 (per curiam), citing Cassidy v. Cassidy, Pike App. No. 03CA721, 2005-

Ohio-3199, at ¶20. “Contempt proceedings are often classified as sui generis, neither

civil nor criminal. However, most courts distinguish between civil and criminal contempt

proceedings.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15, 740

N.E.2d 265 (internal citation omitted). The distinction largely depends upon the purpose

of the sanction imposed. Id.

{¶9} Criminal contempt sanctions “are punitive in nature and are designed to
Athens App. No. 10CA6 5

vindicate the authority of the court.” Eastern Local School Dist. Bd. of Educ. v. Eastern

Local Classroom Teachers’ Assn., Pike App. No. 03CA717, 2004-Ohio-1499, at ¶8,

citing State ex rel. Johnson v. County Court of Perry Cty. (1986), 25 Ohio St.3d 53, 495

N.E.2d 16. They “are usually characterized by an unconditional prison term or fine.”

Id., citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 254, 416 N.E.2d 610.

“Civil contempt sanctions are remedial or coercive in nature and are for the benefit of

the complainant.” Id., citing Brown at 253. “Prison sentences are conditional. The

contemnor is said to carry the keys of his prison in his own pocket * * * since he will be

freed if he agrees to do as ordered.” Brown at 253.

{¶10} After making the contempt finding, the trial court sentenced Liming to 30

days in jail but suspended the sentence on the condition that he, among other things,

timely pay his current child support obligation and make installment payments toward

his arrearage. The court’s sanction was coercive and benefited Liming, so we

characterize the order as a civil contempt order.

{¶11} Nonetheless, Liming claims the purge hearing related to that order

constituted a criminal proceeding. He cites In re Earley v. Campbell (Mar. 30, 2000),

Stark App. No. 99-CA-256, 2000 WL 329969 and Samantha N. v. Lee A.R. (Feb. 16,

2001), Erie App. Nos. E-00-036 & E-00-037, 2001 WL 127343, to support his argument.

We find Earley inapplicable as it did not involve a purge hearing but instead involved a

contempt finding followed by a deferred sentencing hearing. See Earley at *2.

{¶12} In Samantha N., the trial court found the appellant in contempt for failing to

keep his child support obligations current, but the court suspended his jail sentences on

the condition that he follow a particular payment schedule. Samantha N. at *1. The
Athens App. No. 10CA6 6

child support enforcement agency alleged that the appellant failed to follow the court’s

order. Id. The appellant did not have counsel at the contempt hearing or purge

hearing. Id. The appellant complained that he hired an attorney to represent him at the

purge hearing, but when the court “could not reach his counsel by telephone to learn

why his counsel was not present for the hearing, the trial court forced him to proceed

without representation.” Id. at *2.

{¶13} The Sixth District concluded the trial court “was exercising its criminal

contempt powers [at the purge hearing] because it was clearly no longer attempting to

coerce appellant to pay his child support arrearages. Instead the trial court was

punishing appellant for not complying with its previous orders.” Id. at *3 (footnote

omitted). The Samantha N. Court noted that “[o]nce the contempt power is classified as

criminal, the contemnor is entitled to those rights and constitutional privileges afforded a

defendant in a criminal action. * * * The most important of these are the contemnor’s

right to due process and to have the complainant prove the contempt beyond a

reasonable doubt.” Id., quoting Winkler v. Winkler (1991), 81 Ohio App.3d 199, 202,

610 N.E.2d 1022. And the court concluded that the trial court denied the appellant his

due process rights. Id.

{¶14} The Samantha N. Court did not address the issue of whether indigent

parties have a constitutional right to appointed counsel at purge hearings. Moreover,

we disagree with the Sixth District’s characterization of a purge hearing as an exercise

of criminal contempt powers. The fact that Liming failed to meet the purge conditions to

avoid enforcement of his sentence did not convert the purge hearing into a criminal

contempt proceeding at which he faced a new risk of imprisonment. See Segovia v.
Athens App. No. 10CA6 7

Likens, 179 Ohio App.3d 256, 2008-Ohio-5896, 901 N.E.2d 310, at ¶39. The only issue

before the court at the purge hearing was whether Liming met the purge conditions

imposed following the civil contempt hearing, i.e., whether he paid his current child

support obligations and his arrearage. See id. Finding that Liming had not purged the

contempt, the trial court did not impose a new sentence. See id. “Rather, the court

enforced the sentence it had already imposed.” Id. Thus, we conclude that the purge

hearing retained the civil character of the original contempt proceeding. And because

the purge hearing did not constitute a criminal prosecution, the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution did not

apply to it.

{¶15} The characterization of the purge hearing as civil in nature does not

foreclose the possibility that Liming had a procedural due process right to counsel

predicated on the Fourteenth Amendment to the United States Constitution or Section

16, Article I of the Ohio Constitution. “When read in conjunction with Sections 1, 2, and

19 [of the Ohio Constitution], Section 16 is the equivalent to the Fourteenth

Amendment’s due process clause. As a consequence, decisions of the United States

Supreme Court can be utilized to give meaning to the guarantees of Article I of the Ohio

Constitution.” State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 8, 399 N.E.2d 66

(internal citation omitted).

{¶16} The United States Supreme Court has explained:

For all its consequence, “due process” has never been, and
perhaps can never be, precisely defined. “[U]nlike some legal rules,” this
Court has said, due process “is not a technical conception with a fixed
content unrelated to time, place and circumstances.” Cafeteria Workers v.
McElroy [(1961)], 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d
1230. Rather, the phrase expresses the requirement of “fundamental
Athens App. No. 10CA6 8

fairness,” a requirement whose meaning can be as opaque as its
importance is lofty. Applying the Due Process Clause is therefore an
uncertain enterprise which must discover what “fundamental fairness”
consists of in a particular situation by first considering any relevant
precedents and then by assessing the several interests that are at stake.

Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68

L.Ed.2d 640.

{¶17} Liming claims that he had a due process right to counsel at the purge

hearing because he faced the loss of his physical liberty at the hearing. He cites

Lassiter for the proposition that “[r]egardless of whether the matter is civil or criminal,

due process demands that whenever a party faces the deprivation of his or her liberty

interest, the party is entitled to counsel.” (Appellant’s Br. 5). Contrary to Liming’s

assertion, Lassiter did not create a per se right to appointed counsel whenever loss of

liberty is possible. Lassiter did not even establish a presumption in favor of appointed

counsel when incarceration is possible. In rejecting a mother’s claimed right to counsel

before her parental rights could be terminated, the Court simply found a “presumption

that there is no right to appointed counsel in the absence of at least a potential

deprivation of physical liberty[.]” Lassiter at 31. Lassiter did not involve a potential loss

of physical liberty, so the Court had no occasion to hold – and did not hold – that when

loss of liberty is at stake, there is a per se right to or presumption in favor of appointing

counsel.

{¶18} Liming also cites Argersinger v. Hamlin (1972), 407 U.S. 25, 38, 92 S.Ct.

2006, 32 L.Ed.2d 530 for the proposition that “‘where imprisonment actually occurs[,]’

the indigent-defendant must have been appointed counsel.” (Appellant’s Reply Br. 2).

However, the Argersinger Court held that “absent a knowing and intelligent waiver, no
Athens App. No. 10CA6 9

person may be imprisoned for any offense, whether classified as petty, misdemeanor,

or felony, unless he was represented by counsel at his trial.” Argersinger at 37.

Argersinger involved the Sixth Amendment right to counsel in criminal proceedings, not

a due process based right to counsel in a civil proceeding, thus we find it inapplicable

here.

{¶19} Thus, we decline to create a per se right to counsel at purge hearings

based solely on the possibility of imprisonment after such a hearing. We recognize that

this conclusion appears at odds with our decision in Matter of Estate of Straub (Feb. 13,

1992), Ross App. No. 1728, 1992 WL 37781, at *8, where we broadly stated that

“counsel must be appointed for those unable to afford counsel in any proceedings

where incarceration is a possibility, including both civil and criminal contempt

proceedings.” However, Straub did not involve a purge hearing, so we did not have

occasion to address the right to counsel in that context.

{¶20} Liming cites a number of Ohio cases for the proposition that a civil

contemnor is entitled to counsel at a purge hearing. However, none of these cases

address the specific issue of whether a civil contemnor has a constitutional right to

appointed counsel at a purge hearing: Schock v. Sheppard (1982), 7 Ohio App.3d 45,

453 N.E.2d 1292; Green v. Green, Portage App. No. 2007-P-0092, 2008-Ohio-3064;

Everly v. Shuster (Apr. 27, 1999), Noble App. No. 237, 1999 WL 260895; Duffield v.

Duffield (Sept. 12, 2001), Wayne App. No. 01CA0002, 2001 WL 1044077.

{¶21} Therefore, to determine whether an indigent civil contemnor who had

counsel at his contempt hearing has a per se right to appointed counsel at a purge

hearing, we turn to the United States Supreme Court’s decision in Mathews v. Eldridge
Athens App. No. 10CA6 10

(1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. The Mathews Court identified three

factors for courts to evaluate in determining what procedural due process requires: 1.)

the private interests at stake; 2.) the government’s interest; and 3.) the risk that the

procedures used will lead to erroneous decisions. Mathews at 335. See Lassiter,

supra, at 27 (in part balancing these factors to decide whether mother had due process

right to counsel before parental rights could be terminated).

{¶22} As to the private interests at stake, civil contemnors such as Liming

certainly face the loss of physical liberty at a purge hearing. However, as the Tenth

District has recognized, this liberty interest is a “diminished one.” Segovia, supra, at

¶43. In Segovia the trial court found Ricardo, the plaintiff in an action to establish

parental rights and responsibilities concerning two minor children, in contempt for failing

to comply with a court order regarding phone access to the children. Id. at ¶¶2-3, 7-8.

The court sentenced Ricardo to 15 days in jail but suspended the sentence on the

condition that Ricardo purge the contempt by giving the children’s mother additional

phone time with them during his next parenting weekend. Id. at ¶7. Subsequently, the

mother filed a motion to enforce, claiming Ricardo did not comply with the purge

condition. Id. at ¶11. At the purge hearing, Ricardo sought a continuance to obtain

counsel, but the court denied his request. Id. at ¶12. The court enforced five days of

the suspended sentence and continued to suspend the remaining ten days. Id. at ¶17.

Ricardo appealed, arguing in part that the court should have determined whether he

was indigent and eligible for court appointed counsel. Id. at ¶18.

{¶23} In evaluating the private interests at stake, the Segovia Court considered

the fact that “a litigant’s right to counsel diminishes as his personal liberty interest
Athens App. No. 10CA6 11

diminishes.” Id. at ¶42, citing Lassiter at 26. The Court cited parole revocation as an

example, noting that “[r]evocation deprives an individual, not of the absolute liberty to

which every citizen is entitled, but only of the conditional liberty properly dependent on

observance of special parole restrictions.” Id., quoting Morrissey v. Brewer (1972), 408

U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484. While the Tenth District recognized that

“Ricardo faced the risk of losing his freedom following the purge hearing,” the Court also

recognized that the “trial court had already conditioned Ricardo’s freedom on his

continued compliance with the court’s order.” Id. at ¶43. “Thus, like a parolee subject

to having his parole revoked, Ricardo’s liberty interest was a diminished one.” Id.

Likewise, we conclude that since the trial court already conditioned Liming’s freedom on

compliance with the purge conditions, he had a diminished liberty interest at the purge

hearing.

{¶24} Regarding the risk that the procedures used will lead to erroneous

decisions, the Tenth District considered the fact that Ricardo had a “full opportunity, with

counsel, to defend against the contempt charge in the first instance” and “did not object

to or otherwise appeal from that court’s finding of contempt.” Id. at ¶44. Therefore, the

Segovia Court found that it could afford the finding of contempt “sufficient reliability to

support a sentence.” Id., citing Alabama v. Shelton (2002), 535 U.S. 654, 665, 667, 122

S.Ct. 1764, 152 L.Ed.2d 888. And the Court concluded that “the only question at issue

in the purge hearing-whether Ricardo purged the contempt-was a limited one and

presented a low risk of an erroneous decision by the trial court.” Id.

{¶25} Like the contemnor in Segovia, Liming had counsel to defend the

contempt charge in the first instance and did not appeal from the contempt finding. And
Athens App. No. 10CA6 12

we agree with the Segovia Court that the only question at issue during a purge hearing,

i.e. whether the contemnor purged the contempt, is a limited one and presents a low

risk of an erroneous decision by the trial court. Moreover, in examining the

government’s interest, we recognize that requiring the state to provide indigent civil

contemnors with appointed counsel at purge hearings would place additional fiscal and

administrative burdens on the government. See Mathews, supra, at 335.

{¶26} Balancing the civil contemnor’s diminished liberty interest at a purge

hearing against the low risk of an erroneous decision at the hearing and the

government’s interest, we decline to create a categorical rule that civil contemnors

represented by counsel at contempt hearings have a due process based right to

appointed counsel at purge hearings. We overrule Liming’s first and second

assignments of error and affirm the trial court’s judgment. This decision does not

foreclose the possibility that fundamental fairness – “the touchstone of due process” –

might require the appointment of counsel at a purge hearing under certain

circumstances. See Gagnon v. Scarpelli (1973), 411 U.S. 778, 787-790, 93 S.Ct. 1756,

36 L.Ed.2d 656 (declining to adopt categorical rule that government must provide

counsel for indigents in all probation or parole revocation cases and instead adopting a

case-by-case approach). However, Liming does not advocate a case-by-case approach

to this issue, let alone argue that he was entitled to counsel at the purge hearing based

on circumstances unique to his case. So we need not address those issues here.

JUDGMENT AFFIRMED.
Athens App. No. 10CA6 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas 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. Exceptions.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ____________________________
William H. Harsha, Presiding 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.