Souders v. Souders

[Cite as Souders v. Souders, 2016-Ohio-3522.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

TIFFANY J. SOUDERS, : APPEAL NO. C-150552
TRIAL NO. DR-1400927
Plaintiff-Appellee, :

vs. : O P I N I O N.

STEPHEN T. SOUDERS, :

Defendant-Appellant. :

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

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 22, 2016

Tiffany J. Souders, pro se,

Stephen T. Souders, pro se.
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F ISCHER , Presiding Judge.

{¶1} Defendant-appellant Stephen T. Souders appeals the trial court’s

judgment finding him in contempt for failing to pay half of his children’s daycare

expenses as well as half of his children’s unreimbursed medical expenses as set forth

in the decree of shared parenting. We affirm the trial court’s judgment.

Factual and Procedural Posture

{¶2} Stephen and plaintiff-appellee Tiffany J. Souders were divorced on

August 8, 2014. Two children were born during their marriage. Pursuant to their

shared-parenting decree, Stephen was ordered to pay child support of $381.31 per

child per month, for a total support order of $762.62 per month effective March

2014. The decree of shared parenting further provided that the parties would share

equally the daycare expenses and unreimbursed medical costs for the children.

{¶3} On March 20, 2015, Tiffany filed a motion captioned “Contempt for

Daycare Expenses, Child Support, Medical Expenses, and Divorce Division of Debt.”

On March 23, 2015, a summons was served on Stephen. It contained the mandated

notifications in R.C. 2705.031(C) and provided for a hearing date of April 21, 2015.

{¶4} Stephen appeared before the magistrate on April 21, 2015, and asked the

magistrate to appoint counsel to represent him. He asserted that he was indigent and

had no assets. The magistrate explained that the court could not appoint legal counsel

to represent Stephen, but informed him that he could apply to Legal Aid or pursue other

options to try and obtain affordable or pro bono counsel. The magistrate explained that

Stephen could proceed with the hearing or seek a continuance to obtain counsel.

Stephen requested a continuance to obtain counsel, and the magistrate continued the

matter to May 26, 2015, with a warning to Stephen that if he appeared without counsel,

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he would have to represent himself. The magistrate’s entry granting the continuance to

Stephen reflected this admonition.

{¶5} On May 26, 2015, Stephen and Tiffany appeared pro se at the hearing on

Tiffany’s contempt motion. Tiffany testified that Stephen was obligated to pay one-half

of the children’s daycare expenses under their decree of shared parenting. Paragraph

13(c) of the parties’ decree of shared parenting provided that “[t]he parties shall equally

divide all necessary school related fees and expenses. The parties shall also equally

divide any necessary daycare costs.” Tiffany testified that the parties’ children currently

attend daycare at a cost of $340.68 a week with each party owing $170.34. Tiffany

further testified that from October 15, 2015, to March 20, 2015, Stephen’s share of the

day care expenses totaled $3,261.46 and that Stephen had not made any payments

towards this obligation. Tiffany submitted invoices from the children’s daycare center

detailing these amounts.

{¶6} Tiffany further testified that Stephen had not paid for his half of the

children’s unreimbursed medical expenses. Paragraph 11(b) of the parties’ shared-

parenting decree provides that “any additional uninsured medical, dental, orthodontic,

optical, psychological, or psychiatric expenses for the minor children, including

deductibles and/or copayments under the health insurance plan, shall be paid as

follows: 50% by Father and 50% by Mother.” Tiffany testified that she had incurred

unreimbursed medical expenses for the children from December 2013 to January 17,

2015, totaling $1,740.78.

{¶7} Stephen testified that he was not working and had not worked since

August 29, 2014, when he had suffered a mental breakdown, and that he currently

suffers from post traumatic stress disorder (PTSD) and severe depression. He had been

terminated from his employment for missing work and had not received any separation

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pay or unemployment compensation. Stephen testified that he has not had any earned

income since August 2014. In April 2015, he began seeing Crystal Williams, a licensed

psychologist. Stephen attempted to admit a letter from Dr. Williams stating it was not

advisable for Stephen to return to work until May 2016, but the magistrate refused to

admit the letter on the basis of hearsay concerns.

{¶8} Stephen testified that he currently takes several medications for his

conditions. He claimed that his psychologist had declared him disabled, and that the

only reason he had not filed for disability was because of his pride. Stephen submitted

no proof of his disability claim other than his own testimony. Stephen further testified

that since the parties’ divorce, he had sold off assets and had cashed in IRAs in order to

make payments toward some of his obligations for his personal needs, as well as his

obligations under the parties’ divorce decree. Stephen testified that he receives Medicaid

for his prescriptions and food stamps. His parents provide him housing at their home

and also provide him with some money.

{¶9} Tiffany testified that Stephen may suffer from PTSD and need to be

evaluated, but that she believes Stephen can work.

{¶10} The magistrate subsequently issued a decision with findings of fact and

conclusions of law. He granted Tiffany’s motion and found Stephen in contempt for

failing to pay his 50 percent share of the daycare costs for the parties’ two children and

his 50 percent share of the unreimbursed medical expenses incurred for the parties’

children. The magistrate sentenced Stephen to 30 days in jail, but stated that Stephen

could purge the contempt if he paid Tiffany $3750.98 for his share of the children’s

unreimbursed medical expenses and daycare costs and reimbursed Tiffany for the filing

fee for the contempt motion.

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{¶11} Stephen filed multiple objections to the magistrate’s decision,

challenging (1) the magistrate’s denial of his right to court-appointed counsel, (2) the

magistrate’s limitation of his evidence, including his refusal to admit a letter from his

psychologist stating he was disabled and unable to work, evidence of Tiffany’s delay in

fulfilling her obligations under the divorce decree and evidence of Tiffany’s taking of

the tax exemptions for the minor children, (3) the imposition of an excessive purge

amount, and (4) the reference to the prior contempt actions against him.

{¶12} At the hearing on the objections, the trial court admitted Stephen’s letter

from his psychologist into evidence, but it found the letter legally insufficient to show

Stephen’s inability to pay. The trial court overruled the remainder of Stephen’s

objections, except the one in which he had argued that the purge order was excessive,

and it adopted the portion of the magistrate’s decision not inconsistent with its entry.

The trial court found Stephen to be in contempt of court. It sentenced Stephen to 30

days in the Hamilton County Justice Center, but it stayed the sentence until October 5,

2015. The trial court provided that Stephen could purge the contempt by paying $750

per month to Tiffany until the total of $3750.98 for his share of the parties’ children’s

unreimbursed medical expenses and daycare costs was paid in full and by reimbursing

Tiffany for her $125 filing fee for the contempt motion.

Analysis

{¶13} We note at the outset that we have jurisdiction to entertain Stephen’s

appeal. The Ohio Supreme Court has held that a judgment entry finding a party in

contempt and imposing a sentence is a final appealable order on the issue of whether the

party is in contempt of court, even though the order contains purge conditions. See

Docks Venture L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-

4254, 22 N.E.3d 1035, ¶ 23; see also Dreisilker v. Carrelli, 12th Dist. Warren No.

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CA2015-06-052, 2016-Ohio-342, ¶ 13; Bostick v. Bostick, 2d Dist. Champaign No.

2014-CA-22, 2015-Ohio-455, ¶ 10 (following Docks Venture L.L.C.).

Right to Appointed Counsel

{¶14} In his first assignment of error, Stephen argues that “the trial court

erred in denying indigent/financially insolvent defendant–appellant who is without

funds to comply with a purge order, the right to appointed counsel when defendant-

appellant was informed that he faced the possibility of 60 days of imprisonment if

found guilty and a trial court letter [the summons] informed him that he had the

right to counsel.”

{¶15} R.C. 2705.031 governs the procedure for contempt actions based

upon a failure to pay child support. R.C. 2705.031(B)(1) provides that “any party who

has a legal claim to any support ordered for a child, * * * may initiate a contempt

action for failure to pay the support.” R.C. 2705.031(C) further provides that

[i]n any contempt action initiated pursuant to division B of this

section, the accused shall appear upon the summons and order to

appear that is issued by the court. The summons shall include all of the

following:

(1) Notice that failure to appear may result in the issuance of an

order of arrest, and in cases involving alleged failure to pay

support, the issuance of an order for the payment of support by

withholding an amount from the personal earnings of the accused

or by withholding or deducting an amount from some other asset

of the accused;

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(2) Notice that the accused has the right to counsel, and that if

indigent, the accused must apply for a public defender or court

appointed counsel within three days after receipt of the summons;

(3) Notice that the court may refuse to grant a continuance at the

time of the hearing for the purpose of the accused obtaining

counsel, if the accused fails to make a good faith effort to retain

counsel or to obtain a public defender;

(4) Notice of any potential penalties that could be imposed upon

the accused, if the accused is found guilty of contempt for failure to

pay support or for a failure to comply with, or an interference with,

a parenting time or visitation order or decree;

(5) Notice that the court may grant limited driving privileges under

section 4510.021 of the Revised Code pursuant to a request made

by the accused, if the driver’s license was suspended based on a

notice issued pursuant to section 3123.54 of the Revised Code by

the child support enforcement agency and if the request is

accompanied by a recent noncertified copy of a driver’s abstract

from the registrar of motor vehicles.

{¶16} Here, the record reflects that the summons of contempt served upon

Stephen contained the mandated notifications outlined in R.C. 2705.031(C).

Stephen argues that the trial court violated his due-process rights under the

Fourteenth Amendment by failing to appoint counsel to represent him when he was

entitled to such court-appointed counsel under R.C. 2705.031 and the Due Process

Clause of the United States Constitution.

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{¶17} In Turner v. Rogers, 564 U.S. 431, 441, 131 S.Ct. 2507, 180 L.Ed.2d

452 (2011), the United States Supreme Court held that the “Due Process Clause does

not automatically require the provision of counsel at civil contempt proceedings to

an indigent individual who is subject to a child support order, even if that individual

faces incarceration (for up to a year).” In particular, the Supreme Court held that the

Due Process Clause “does not require the provision of counsel where the opposing

parent or other custodian (to whom support funds are owed) is not represented by

counsel and the State provides alternative procedural safeguards,” including

adequate notice that the ability to pay is a pivotal issue in the contempt proceeding,

“a fair opportunity to present, and to dispute, relevant information, and express

court findings as to the supporting parent’s ability to comply with the support order.”

Id. at 441 and 432; see Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979

N.E.2d 297, paragraph two of the syllabus (finding Turner instructive and holding

that “the Due Process Clauses of the Ohio and United States Constitutions do not

guarantee an indigent parent the right to appointed counsel at a civil-contempt purge

hearing”).

{¶18} Here, we cannot conclude the trial court’s failure to appoint counsel

for Stephen violated any right to court-appointed counsel Stephen may have had

under R.C. 2705.031 or the Due Process Clause. Stephen did not follow the

procedure outlined in R.C. 2705.031(C). He presented no evidence that he had

applied for a public defender or court-appointed counsel. Nor did he file an affidavit

of indigency with the trial court. Furthermore, we cannot conclude the trial court

violated Stephen’s due-process rights by failing to appoint him counsel where

Stephen submitted no documentation to support his claim that he was indigent, both

Stephen and Tiffany appeared pro se, and the record reflects that Stephen was

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provided with all the procedural safeguards delineated by the United States Supreme

Court in Turner. As a result, we overrule his first assignment of error.

Inability to Pay

{¶19} In his second assignment of error, Stephen argues that the trial court

erred in finding his evidence was insufficient to meet his burden to show he was

unable to pay his half of the children’s daycare costs and unreimbursed medical

expenses.

{¶20} In a civil-contempt proceeding, the movant bears the burden of

demonstrating by clear and convincing evidence that the other party has violated an

order of the court. Once the movant has met his or her burden, the burden then

shifts to the other party to either rebut the showing of contempt or demonstrate an

affirmative defense by a preponderance of the evidence. See Pugh v. Pugh, 15 Ohio

St.3d 136, 139-140, 472 N.E.2d 1085 (1984). The “inability to pay is a defense in a

civil contempt proceeding and the burden of proving the inability is on the party

subject to the contempt order.” Liming, 133 Ohio St.3d 509, 2012-Ohio-4783, 979

N.E.2d 297, at ¶ 20; Brockmeier v. Brockmeier, 91 Ohio App.3d 689, 694, 633

N.E.2d 584 (1st Dist.1993).

{¶21} At the hearing on the objections, the trial court accepted into evidence

the letter from Stephen’s psychologist in which she opined that Stephen should be off

work until May 2016. But the trial court found the letter legally insufficient to support

Stephen’s claim that he could not work, emphasizing that the letter provided no

diagnosis, no method of treatment, and no reason why May 2016 had been chosen for

Stephen’s return to work. Furthermore, it noted that Stephen had acknowledged that he

had looked for work, although he had limited his job search to applying for work as a

security guard at two local colleges.

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{¶22} Stephen argues that the trial court erred by discounting his

psychologist’s letter and his testimony before the magistrate, but we cannot conclude the

trial court erred in determining that Stephen had failed to present credible evidence to

support his position that he could not pay his children’s expenses as required under

the decree of shared parenting. He introduced no documentary evidence to support

his testimony that he was too disabled to work, outside of the conclusory letter from

his psychologist, which opined that he was unable to work until May 2016. In what

appears to be a contradiction, Stephen testified that he had applied for work, but had

limited his job search to two specific employers. Thus, the trial court did not err in

concluding that Stephen’s evidence was not credible and that he had failed to meet

his burden of demonstrating an inability to pay. See Dreisilker, 12th Dist. Warren

No. CA2015-06-052, 2016-Ohio-342, at ¶ 19; McCree v. McCree, 7th Dist. Mahoning

No. 08 MA 109, 2009-Ohio-2639, ¶ 18-24; Parker v. Elsass, 10th Dist. Franklin Nos.

01AP-1306, 02AP-15 and 02AP-144, 2002-Ohio-3340, ¶ 38; Carter v. Carter, 2d

Dist. Montgomery Nos. C-14409, 14530 and 14574, 1994 Ohio App. LEXIS 5215, *32-

33 (Nov. 23, 1994). As a result, we overrule his second assignment of error.

Exclusion of Evidence at the Contempt Hearing

{¶23} In his fourth and fifth assignments of error, Stephen argues the trial

court erred in not allowing him to present evidence that would have likely mitigated,

if not exonerated him of his obligation to pay his child support. Stephen argues that

the trial court denied him the right to show the financial hardship that had been

caused to him by Tiffany’s delay in fulfilling her obligations under the divorce decree

and by taking the tax exemptions for the minor children.

{¶24} A trial court has broad discretion in the admission of evidence. See

Knowlton v. Schultz, 179 Ohio App.3d 497, 2008-Ohio-5984, 902 N.E.2d 548, ¶ 27

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(1st Dist.2008). Thus, its decision will not be reversed on appeal absent an abuse of

discretion. LeMarr v. LeMarr, 1st Dist. Hamilton No. C-100706, 2011-Ohio-3682, ¶ 11.

An abuse of discretion connotes more than an error of law or judgment, rather it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶25} The record reflects that the magistrate disallowed the line of

questioning about Tiffany’s actions, stating that if Stephen wanted Tiffany to be

found in contempt he should file that motion. The trial court overruled Stephen’s

objection regarding the magistrate’s exclusion of this evidence, finding that

Stephen’s questioning regarding the tax exemptions was irrelevant to the issue

before the court. The trial court held that because Stephen was not working, he

presumably would not have used the tax exemptions, and that Tiffany’s delay in

paying him $3,500 pursuant to the divorce decree was not proof of any financial

hardship. Based on our review of the record, we find no abuse of discretion. We,

therefore, overrule Stephen’s fourth and fifth assignments of error.

Reasonableness of the Purge Order

{¶26} In his sixth assignment of error, Stephen argues the trial court abused

its discretion by issuing an unreasonably excessive purge order, with which the trial

court knew he was unable to comply because of his medical conditions.

{¶27} “A sanction for civil contempt must allow the contemnor the

opportunity to purge [himself] of the contempt prior to the imposition of any

punishment.” Columbus v. Cicero, 10th Dist. Franklin No. 12AP-407, 2013-Ohio-

3010, ¶ 31. “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.” McCrae v. McCrae, 1st Dist.

Hamilton No. C-110743, 2012-Ohio-2463, ¶ 6, quoting Brown v. Executive 200, Inc.,

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64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980); see In re Thomas, 1st Dist. Hamilton

No. C-030429, 2004-Ohio-373, ¶ 5.

{¶28} The record reflects that the magistrate’s contempt order allowed

Stephen to avoid incarceration by paying the lump sum of $3750.98 for his share of

the children’s unreimbursed medical expenses and daycare costs, and reimbursing

Tiffany for the filing fee for the contempt motion. Stephen objected to the magistrate’s

purge order, arguing it was unreasonable. The trial court agreed and sustained in

part Stephen’s objection. It altered the purge order from a lump-sum payment of

$3750.98 to a monthly payment of $750 until the total of $3750.98 was paid in full.

The trial court, however, adopted the portion of the purge order requiring Stephen to

reimburse Tiffany for the filing fee for the contempt motion.

{¶29} Stephen argues that the purge order is still unreasonable given the

evidence of his medical condition and his inability to work. But, as set forth in our

disposition of Stephen’s second assignment of error, the record reflects that Stephen

has not demonstrated that his medical condition has rendered him unable to pay his

court-ordered obligations. Given the trial court’s determination that Stephen

produced no credible evidence that his mental health prevented him from working,

coupled with Stephen’s own testimony that he had only sought employment with two

specific employers, he was living with his parents who gave him money, and he had

no living expenses outside of his court-ordered obligations to his children, we cannot

conclude that the trial court’s purge order was unreasonable. See Ryan v. Ryan,

10th Dist. Franklin No. 14AP-28, 2014-Ohio-3049, ¶ 17-20. As a result, we overrule

his sixth assignment of error.

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Waiver of Remaining Assignments of Error

{¶30} In his third assignment of error, Stephen argues the trial court erred

by allowing into evidence exhibits that were so disorganized it created an undue

burden on him to refute them during the trial before the magistrate. In his seventh

and eighth assignments of error, Stephen challenges the trial court’s order requiring

him to pay one-half of the children’s unreimbursed medical expenses. He argues the

trial court erred by holding him in contempt for failing to pay his share of the

unreimbursed medical expenses because Tiffany failed to comply with the shared-

parenting plan by timely providing him with copies of the invoices detailing such

expenses and by improperly calculating the amount of the unreimbursed medical

expenses.

{¶31} Stephen did not raise these challenges in his objections to the

magistrate’s decision. Civ.R. 53(D)(3)(b)(iv) states that “except for a claim of plain

error, a party shall not assign as error on appeal the court’s adoption of any factual

finding or legal conclusion, whether or not specifically designated as a finding of fact

or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to

that finding or conclusion as required by Civ.R. 53(D)(b)(d).” Thus, because Stephen

failed to object to these factual findings and legal conclusions, absent plain error, he

has forfeited the right to assign them as error on appeal. See Neu v. Neu, 1st Dist.

Hamilton No. C-140170, 2015-Ohio-1466, ¶ 22-24. As Stephen has not alleged any

plain error on appeal, and we find no plain error based upon our review of the

record, we overrule Stephen’s third, seventh, and eighth assignments of error.

Having found no merit in any of Stephen’s assignments of error, we affirm the

judgment of the trial court.
Judgment affirmed.

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HENDON and STAUTBERG, JJ., concur.

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

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