Lepore v. Breidenbach

[Cite as Lepore v. Breidenbach, 2015-Ohio-2929.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

SUZANNE V. LEPORE, : APPEAL NO. C-140310
TRIAL NO. DR-1102278
Plaintiff-Appellant, :

vs. : O P I N I O N.

CHARLES A. BREIDENBACH, :

Defendant-Appellee. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relation Division

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: July 22, 2015

Statman, Harris & Eyrich, LLC, Alan J. Statman and Thomas S. Sapinsley, for
Plaintiff-Appellant,

Phillips Law Firm, Inc., and Alfred Wm. Schneble, for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Plaintiff-appellant Suzanne V. Lepore appeals the trial court’s

decision denying in part her motion to find defendant-appellee Charles A.

Breidenbach in contempt for failing to pay child support as provided for in a decree

for legal separation and a decree for shared parenting. We find merit in her

arguments, and we reverse the trial court’s judgment.

I. Facts and Procedure

{¶2} The record shows that the parties were married in 2000 and that they

had four children. They entered into a separation agreement and an agreement for

shared parenting in October 2011, after Breidenbach had moved out of the marital

home. The parties’ agreements were incorporated into a decree of legal separation

and a final decree of shared parenting, which the court journalized in January 2012.

During those proceedings, Lepore was represented by counsel. Breidenbach was not

represented, although he acknowledged to the court that he had voluntarily signed

the agreements.

{¶3} The agreements incorporated into the decrees created a two-tiered

child-support obligation. The first tier, which was calculated with a child-support

worksheet using Breidenbach’s base pay, was to be paid through the Child Support

Enforcement Agency (“CSEA”). The second tier involved child support based on the

bonuses and commissions Breidenbach received as part of his compensation.

{¶4} The relevant provisions of the decree of legal separation stated:

[I]n accordance with the child support worksheet attached

hereto, Defendant shall pay child support in the amount of $428.86

per month per child plus a 2% processing charge, through The Office

2
 OHIO FIRST DISTRICT COURT OF APPEALS

of Child Support of The Department of Jobs [sic] and Family Services

for the parties’ minor child. This order is effective on the 1st day of

September 2011 and is payable monthly in the total amount of

$1,749.74, including the processing charge.

The parties acknowledge that, due to the number of children

and their ages, it is not feasible or appropriate for Plaintiff to work

outside of the home except for the time she spends running SVL, Inc.

The parties acknowledge that Defendant just started a job that pays a

base salary of $52,988.00 plus commissions and that the child support

has been calculated solely upon his base salary. The parties agree that,

effective immediately, Defendant shall pay 100% of any commissions

and bonuses he receives [to] Plaintiff within 7 days of his receipt

thereof as additional child support. These amounts shall be paid

directly to Plaintiff by check, money order or some other means that

can be used to verify the payment.

The parties understand and acknowledge that these support

obligations are more than the guideline support reflected in the child

support worksheet attached hereto. However, the parties agree that

the guideline support is not sufficient to provide for the needs of the

children and is unjust and inappropriate. Therefore, the parties agree

that a deviation from guideline child support is in the best interest of

the children.

Defendant is under a continuing obligation to advise Plaintiff of

changes to his base salary. Defendant shall also provide to Plaintiff a

copy of his biweekly pay stubs and any other check he receives from

3
 OHIO FIRST DISTRICT COURT OF APPEALS

his employer. Defendant shall provide the information to Plaintiff

within 3 days of the date on which he is paid.

{¶5} After the decrees were entered, the parties attempted to reconcile.

Breidenbach moved back into the marital home in August 2012. While they resided

together, the parties comingled their income and expenses. Their attempts at

reconciliation were unsuccessful, and Breidenbach moved out again in June 2013.

{¶6} On August 7, 2013, Lepore filed a motion for contempt. She asked the

trial court to find Breidenbach in contempt for failing to pay 100 percent of his

bonuses and commissions directly to her and for failing to provide his biweekly pay

stubs and any other checks he had received from his employer, as required by the

separation agreement incorporated into the decree.

{¶7} Subsequently, Breidenbach filed a Civ.R. 60(B) motion for relief from

judgment. He argued that (1) the actions taken by the parties to reconcile voided the

terms of the previous decrees, (2) Lepore had engaged in fraud and overreaching to

get him to sign the agreements, and (3) the decrees themselves were inherently

inequitable. The trial court overruled his motion.

{¶8} Lepore’s motion for contempt was heard by a magistrate. The

magistrate found that Breidenbach was in contempt for failing to provide to Lepore

pay stubs and copies of any other check he had received from his employer. The

magistrate also found that he was in contempt for failing to pay her his net bonus

and commission income that he had earned from February 1, 2012, to “mid-August

2012,” and from June 1, 2013, to August 9, 2013.

{¶9} The magistrate recommended that Breidenbach be sentenced to 30

days’ incarceration, but ordered that sentence stayed. The magistrate stated that to

purge himself of contempt, Breidenbach had to pay Lepore $14,171.75, which was the

4
 OHIO FIRST DISTRICT COURT OF APPEALS

total amount of commission and bonus income he had received minus a set-off for

funds Lepore owed to him, and to provide her with certain data. The magistrate also

ordered Breidenbach to provide Lepore with copies of his pay stubs and any other

checks he receives from his employer within three days of receiving them. Finally,

the court awarded Lepore attorney fees and costs associated with the motion for

contempt.

{¶10} Both parties objected to the magistrate’s decision. Breidenbach’s

objections included his contention that the magistrate’s decision “ignored the

mandates as required in the Ohio Revised Code for the calculation of child support,

and thus finding [him] in contempt for not paying said support is against the law and

public policy.”

{¶11} In its entry ruling on the objections, the trial court listed the parties’

objections. But it stated that “[i]n considering these matters, the Court has

determined that a more fundamental issue guides the consideration of the decision

of the magistrate[.]” It found that the order in the decree requiring Breidenbach to

pay child support directly to Lepore was not valid, because it did not comport with

the requirement of R.C. 3121.44 that the court must require any child-support

payment to be paid to “the office of support in the department of job and family

services.” The court then cited case law for the proposition that a party cannot be

found in contempt for violating an invalid order. It concluded that “[g]iven the

Court’s determination that it was without authority to order Husband to pay child

support to Wife directly, the Court vacates the magistrate’s finding of contempt on

that basis.”

{¶12} The trial court found the magistrate was correct in finding that

Breidenbach was in contempt for failing to provide Lepore with copies of his pay

5
 OHIO FIRST DISTRICT COURT OF APPEALS

stubs and other checks from his employer. It found him in contempt, and sentenced

him to serve ten days incarceration, but stated he could purge himself of contempt by

providing those documents to Lepore as ordered in the decrees. This appeal

followed.

II. A Voidable Order

{¶13} In her first assignment of error, Lepore contends that the trial court

erred in finding that the child-support orders were invalid, because the decrees did

not require them to be paid through CSEA. She argues that a child-support order

requiring a direct payment of child support that is issued by a court that has both

personal and subject-matter jurisdiction is a valid order. This assignment of error is

well taken.

{¶14} R.C. 3121.44 and 3121.45 set forth clear and mandatory language

requiring the payment of child support to CSEA and obligating the court to consider

any direct payment as a gift. In re Barone, 11th Dist. Geauga No. 2004-G-2575,

2005-Ohio-4479, ¶ 21-22. Some courts have stated that the trial court has no

authority to approve payments that are not paid to CSEA. See Bowley v. Bowley,

12th Dist. Warren No. CA97-12-126, 1998 Ohio App. LEXIS 2280, *3-4 (May 26,

1998); Starr v. Starr, 109 Ohio App.3d 116, 121, 671 N.E.2d 1097 (8th Dist.1996).

{¶15} There is no question that the trial court’s order in the decree of legal

separation and the decree of shared parenting, allowing the payment of child support

directly to Lepore rather than to CSEA, was error. But no direct appeal was filed

from those decrees. Further, the trial court overruled Breidenbach’s Civ.R. 60(B)

motion for relief from those judgments, and Breidenbach did not appeal that

decision.

6
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} The question becomes whether the error rendered those portions of

the decrees void or voidable. A judgment is generally void only when the court

rendering the judgment lacks subject-matter jurisdiction or jurisdiction over the

parties. Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d

568, ¶ 12. A void judgment is a nullity that may be collaterally attacked at any time.

Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 46; Boehm,

Kurtz & Lowry v. Evans Landscaping, Inc., 1st Dist. Hamilton No. C-140597, 2015-

Ohio-2692, ¶ 9.

{¶17} A voidable judgment, on the other hand, is rendered by a court that

has both jurisdiction and authority to act, but the court’s judgment is invalid

irregular, or erroneous. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, ¶ 6; Miller at ¶ 12. A voidable judgment may be attacked on direct

appeal or in a timely motion for relief from judgment under Civ.R. 60(B). Until a

court declares a voidable judgment invalid, it has all the ordinary consequences of

any other judgment. Tari v. State, 117 Ohio St. 481, 493-494, 159 N.E. 594 (1927);

Leman v. Fryman, 1st Dist. Hamilton No. C-010056, 2002-Ohio-191, ¶ 12.

{¶18} The jurisdiction of the domestic relations court is statutory. Davis v.

Cincinnati Enquirer, 164 Ohio App.3d 36, 2005-Ohio-5719, 840 N.E.2d 1150, ¶ 11

(1st Dist.). R.C. 3105.011 states that “[t]he court of common pleas including divisions

of courts of domestic relations, has full equitable powers and jurisdiction appropriate

to the determination of all domestic relations matters.” Thus, the trial court in this

case had jurisdiction to issue the decree of legal separation and the decree of shared

parenting. Additionally, the parties do not dispute that the trial court had personal

jurisdiction over them. See R.C. 3105.03; Rijo v. Rijo, 1st Dist. Hamilton No. C-

930704, 1995 Ohio App. LEXIS 299, *14-18 (Jan. 31, 1995). Because the court had

7
 OHIO FIRST DISTRICT COURT OF APPEALS

both subject-matter jurisdiction to issue the decrees and personal jurisdiction over

the parties, the court’s failure to order the child support to be paid to CSEA does not

render the judgments void.

{¶19} Because the judgments were voidable, they could be attacked only on

direct appeal. Both the decree of legal separation and the decree of shared parenting

were final, appealable orders. See R.C. 2505.02(B); Civ.R. 75(F); Wilson v. Wilson,

116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 15. Consequently, the error

should have been raised on direct appeal. Though Breidenbach did file a Civ.R.

60(B) motion for relief from judgment, he did not raise the issue of the court’s failure

to order the child support to be paid through CSEA, and he did not appeal the court’s

denial of the motion. Consequently, the validity of the child-support orders could

not be collaterally attacked in a contempt proceeding. See Ahmed v. Shafik Ahmad,

2d Dist. Montgomery No. 23740, 2010-Ohio-5635, ¶ 23.

{¶20} While the domestic relations court could exercise its continuing

jurisdiction to order that future child-support payments be made through CSEA, it

could not rescind the order as to the child-support arrearages already due. See

Broadnax v. Bowling, 1st Dist. Hamilton No. C-030502, 2004-Ohio-1114, ¶ 14.

Consequently, we sustain Lepore’s first assignment of error.

III. Order is Enforceable by Contempt

{¶21} In her third assignment of error, Lepore contends that the trial court

erred in finding that the child-support orders were unenforceable in contempt. She

argues that because the child-support orders were not void, but merely voidable, they

could be enforced in contempt. This assignment of error is well taken.

{¶22} This court has said that a party may not be found in contempt of an

invalid order. See Cincinnati Met. Hous. Auth. v. Cincinnati Dist. Council, 22 Ohio

8
 OHIO FIRST DISTRICT COURT OF APPEALS

App.2d 39, 44, 257 N.E.2d 410 (1st Dist.1969). Accord Jurek v. Jurek, 8th Dist.

Cuyahoga No. 52846, 1987 Ohio App. LEXIS 7809, *3-4 (July 9, 1987);

Paszczykowski v. Paszczykowski, 6th Dist. Lucas No. L-80-301, 1981 Ohio App.

LEXIS 10359, *3-4 (May 29, 1981). But this rule is inapplicable to the present case

because the orders sought to be enforced were still valid. The error rendered them

voidable, but they were never reversed, vacated, or set aside.

{¶23} Obedience to judicial orders is an important public policy. Parties

must obey an order issued by a court of competent jurisdiction until it is vacated or

reversed through proper procedure. Walker v. Birmingham, 388 U.S. 307, 313-314,

87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330

U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed.2d 884 (1947); Westlake v. Patrick, 8th

Dist. Cuyahoga No. 88198, 2007-Ohio-1307, ¶ 6. “If a party can make himself a

judge of the validity of orders which have been issued, and by his own disobedience

set them aside, then are the courts impotent, and what the Constitution now fittingly

calls the ‘judicial power of the United States’ would be a mere mockery.” United

Mine Workers at 290, quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418,

450, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

{¶24} Consequently, a violation of a court order is punishable by contempt

even if a court later determines that the order is invalid. Walker at 314; United Mine

Workers at 294; Westlake at ¶ 7. Parties faced with an invalid order must have it

modified or vacated. They cannot simply ignore it. Natl. Equity Title Agency v.

Rivera, 147 Ohio App.3d 246, 2001-Ohio-7095, 770 N.E.2d 76, ¶ 2.

{¶25} In this case, the child-support order allowing for payment directly to

Lepore was not declared invalid until the trial court’s May 5, 2014 order. Before that

date, Breidenbach was required to pay his bonuses and commissions as required by

9
 OHIO FIRST DISTRICT COURT OF APPEALS

the separation agreement incorporated into the decrees, and could be found in

contempt for failing to do so. Consequently, we hold that the trial court erred in

holding that he could not be found in contempt for violating the child-support order.

We sustain Lepore’s third assignment of error.

IV. Res Judicata

{¶26} In her second assignment of error, Lepore contends that the trial

court erred in addressing the issue of whether the child-support orders were invalid.

She contends that the question of the validity of the orders is res judicata because

Breidenbach did not appeal the decree of legal separation or the trial court’s order

overruling his Civ.R. 60(B) motion.

{¶27} As a general rule, motions regarding child support invoke the court’s

continuing jurisdiction and are not barred by res judicata. Flege v. Flege, 12th Dist.

Butler No. CA2003-05-111, 2004-Ohio-1929, ¶ 32; In re Kelley, 2d Dist. Champaign

No. 2000-CA-14, 2000 Ohio App. LEXIS 5833 *8-9 (Dec. 15, 2000). But, to the

extent that a party seeks to revisit an issue regarding a support arrearage that was

previously considered and decided by the court, the doctrine may be applied. Klein

v. Botelho, 2d Dist. Montgomery No. 24393, 2011-Ohio-4165, ¶ 86; Kelley at *8-9.

{¶28} Consequently, issues regarding the validity of the child-support

orders in the decrees were res judicata and cannot be collaterally attacked. The

failure to pay past child support can be enforced by contempt. But due to the

continuing jurisdiction of the domestic relations court over child support,

Breidenbach can still seek to have the amount of future child support modified. With

that caveat, we sustain Lepore’s second assignment of error.

{¶29} Finally, in her fourth assignment of error, Lepore contends that the

trial court erred in finding that it was without authority to adopt the parties’

10
 OHIO FIRST DISTRICT COURT OF APPEALS

agreement concerning the payment of child support. We agree. The decree of legal

separation and the shared-parenting decree were both final, appealable orders. Any

alleged errors contained in those decrees should have been raised in a direct appeal

from the decrees themselves. They cannot be raised now in an appeal from the

court’s ruling on Lepore’s motion for contempt. See Marshall v. Marshall, 4th Dist.

Lawrence No. 06CA9, 2007-Ohio-3041, ¶ 20-25. Consequently, we sustain Lepore’s

fourth assignment of error.

V. Summary

{¶30} In sum, we reverse that part of the trial court’s decision vacating the

magistrate’s finding of contempt on the basis that the court was without authority to

order Breidenbach to pay support to Lepore directly and not through CSEA. Because

the court determined that the order was invalid, it found all of the other objections to

the magistrate’s report to be moot. Consequently, we remand the cause to the trial

court to determine the validity of those objections and to determine whether to

adopt, reject, or modify the magistrate’s decision on that basis. See Civ.R. 53(D)(3)

and (4); Chan v. Tasr, 1st Dist. Hamilton No. C-070275, 2008-Ohio-1439, ¶ 6-11.

We affirm that part of the trial court’s decision finding Breidenbach in contempt for

failing to provide his pay stubs and copies of any other checks as provided for in the

decrees.

Judgment affirmed in part, reversed in part, and cause remanded.

H ENDON , P.J., and D E W INE , J., concur.

Please note:
The court has recorded its own entry this date.

11