Opinion
2021-A-0022
02-14-2022
LAURA BIATS, Plaintiff-Appellee, v. CARL G. BIATS, JR., et al., Defendant-Appellant, ASHTABULA COUNTY CHILD SUPPORT ENFORCEMENT AGENCY, Appellee.
Laura Biats n.k.a. Adams, pro se, (Plaintiff-Appellee). Michael A. Hiener, (For Defendant-Appellant). Debra S. McMillan, ACCSEA, (For Appellee, Ashtabula County Child Support Enforcement Agency).
Civil Appeal from the Court of Common Pleas Trial Court No. 2009 DR 00068
Laura Biats n.k.a. Adams, pro se, (Plaintiff-Appellee).
Michael A. Hiener, (For Defendant-Appellant).
Debra S. McMillan, ACCSEA, (For Appellee, Ashtabula County Child Support Enforcement Agency).
OPINION
MATT LYNCH, J.
{¶1} Defendant-appellant, Carl G. Biats, appeals the judgments of the Ashtabula County Court of Common Pleas, finding him in contempt and sentencing him to serve 30 days in the Ashtabula County Jail suspended during the pendency of this appeal. For the following reasons, we affirm the decisions of the court below.
{¶2} On July 9, 2010, Biats and plaintiff, Laura Biats n.k.a Adams, were granted a divorce in the Ashtabula County Court of Common Pleas. As part of the Final Decree of Divorce, the court ordered Biats to pay Adams "the sum of $3,000.00 per month, plus 2% processing fee for a total of $3,060.00 per month, as and for spousal support, beginning July 1, 2010 and continuing for 120 months (ten years)" or until Adams' remarriage. Spousal support payments were to be "made through the Ohio Child Support Central, P.O. Box 182394, Columbus, Ohio 43218."
{¶3} The Final Decree further determined that "there is an arrearage in spousal support owed Plaintiff in the amount of * * * $21,045.94" and awarded Adams judgment for that amount. The Decree stated: "This arrearage is owed Plaintiff for payments not paid through Job and Family Services. There is no arrearage for payments which were directed to be paid through Job and Family Services."
{¶4} The Final Decree also ordered Biats to "pay [Adams] the sum of $7,000.00 for funds she lost in an attachment by Geauga Savings Bank" and rendered judgment to her in that amount.
{¶5} On October 23, 2019, appellee, the Ashtabula County Child Support Enforcement Agency, filed a Motion to Show Cause, seeking an order for Biats "to appear before the Court and show cause why he should not be punished for acts in contempt of a Court Order to support [Adams], mandated by the Court on or about 07/09/2010."
{¶6} On December 6, 2019, Biats filed a Motion for Refund of Spousal Support and Processing Fee Overpayment / Defendant's Response to Motion to Show Cause. Biats sought an award of $5,838.76 against Adams "for overpayment of spousal support as a result of improper calculation of his support obligation and payments by the Ashtabula County [Child Support Enforcement Agency]" plus $116.78 against the Ashtabula Child Support Agency "to refund processing fee overpayments."
{¶7} On December 9, 2019, a hearing on the motions was held before a magistrate. Biats argued that, in February 2011, he paid $28,930.26 to the attorney representing Adams in the divorce proceedings and that this payment had never been credited by the Child Support Enforcement Agency. Adams argued that this payment "was for the arrearage prior to [the] final divorce decree," i.e., the $21,045.94 judgment for arrearage existing at the time of the Final Decree plus the $7,000.00 judgment for funds lost by attachment. Jodi Carlucci testified on behalf of the Child Support Enforcement Agency that there was an existing arrearage of $24,675.82 as of November 30, 2019.
{¶8} On January 16, 2020, a Magistrate's Decision was issued, denying Biats' Motion and finding him in contempt for failing to pay support. Biats could purge himself of contempt by paying $3,600.00 per month, plus processing charge, commencing January 1, 2020. Biats filed objections to the Magistrate's Decision.
{¶9} On May 11, 2020, the trial court overruled the objections.
{¶10} On July 20, 2021, the trial court determined that Biats' current spousal support arrearage was $26,115.82, and sentenced Biats to serve thirty days in the Ashtabula County Jail for contempt/nonpayment of support.
{¶11} On August 18, 2021, Biats filed a Notice of Appeal. On appeal, he raises the following assignments of error:
"[1] The Trial Court erred when it did not credit Appellant with a payment directly made to Appellee's counsel in the amount of $28,930.11 [sic] and dismissed his motion for a refund."
"[2.] The Trial Court erred when it found that Appellant's action constituted a violation of a court order."
"[3.] The Trial Court erred by not setting conditions to purge"
{¶12} "To support a contempt finding, the moving party must establish by clear and convincing evidence that a valid court order exists, that the offending party had knowledge of the order, and that the offending party violated such order." Carl v. Carl, 12th Dist. Clermont No. CA2019-12-097, 2020-Ohio-6906, ¶ 12. "An appellate court will not overturn a trial court's finding of contempt absent an abuse of discretion." Dilley v. Dilley, 11th Dist. Geauga No. 2014-G-3227, 2015-Ohio-1872, ¶ 20.
{¶13} Under the first assignment of error, Biats argues the finding of contempt was in error. "There was no dispute that [Biats] had made a direct payment to [Adams'] counsel on February 11, 2011, in the amount of $28,930.11 [sic] that [the Child Support Enforcement Agency] did not credit towards [his] spousal support arrearage. The Magistrate ignored this payment and found that res judicata prevented her from crediting Appellant with the payment." Appellant's brief at 6.
{¶14} In her Decision, the magistrate found "the payment [Biats] is trying to receive credit for was not money paid through [the Child Support Enforcement Agency]." The magistrate's point is that, according to the Final Decree, Biats was ordered to pay spousal support to the Agency commencing in July 2010 at which time no arrearage existed. Independent of this order, Biats owed $21,045.94 for support arrearage accrued during the pendency of the divorce in addition to $7,000.00 for other debt. The present contempt proceedings were based on Biats' failure to pay support to the Agency commencing in July 2010. The $28,930.26 payment was not paid to the Agency and, therefore, should not be credited against arrearage owed to the Agency.
{¶15} The magistrate further ruled that the "Court has numerous times since [February 2011] made findings of the spousal support arrears," and that Biats had never challenged the findings or raised the argument that he had not been credited for payments made. In particular, the magistrate cited a Judgment Entry filed on March 2, 2015, "which established the arrearage as a fixed sum" but which Biats did not appeal. Accordingly, Biats would be "prevented from now producing any such claims to reduce the balance by res judicata, or issue/claim preclusion."
{¶16} We need not determine whether res judicata properly applied in the present case. The evidence before the court clearly and convincingly demonstrates that Biats is not entitled to a credit of $28,930.26 against the arrearage owed to the Agency. As noted by the magistrate, this money was not paid to the Agency but to Adams' divorce attorney. This is significant because the support commencing in July 2010 was to be paid to "Child Support Central." There is no evidence that the money paid to Adams' attorney was ever received by the Agency and, therefore, no reason why the Agency should have credited Biats with the payment. Compare R.C. 3121.45 ("[a]ny payment of money by the person responsible for the support payments under a support order to the person entitled to receive the support payments that is not made to the office of child support, or to the child support enforcement agency administering the support * * *, shall not be considered a payment of support under the support order and, unless the payment is made to discharge an obligation other than support, shall be deemed to be a gift").
{¶17} In contrast, Biats made another payment in February 2011 of $23,062.22. This payment was made by check payable to "Ohio CSPC [Child Support Payment Central]" and was duly credited by the Agency as evidenced by the audit of Biats' account conducted at his request. According to the Agency's records, Biats had an outstanding balance of $24,675.82 as of November 30, 2019. Biats does not argue that the underlying balance was calculated incorrectly, but rather that he was not credited for the $28,930.26 payment made in February 2011.
{¶18} While Biats correctly observes that there is no dispute that he paid $28,930.26 and that the Agency did not credit this payment, the probable reason is that this payment satisfied other debts under the Decree. Adams stated it was her understanding that the payment to her attorney satisfied the $21,045.94 and $7,000.00 judgments rendered by the Final Decree. Biats did not introduce evidence that the $21,045.94 and $7,000.00 judgments were otherwise satisfied or that they were rolled into the arrearage owed to the Agency. We further note that, in February 2011, a payment of $28,930.26 toward the spousal support which began accruing in July 2010 would represent a significant overpayment (at $3,000 per month, $24,000 would have accrued between July 2010 and February 2011). On the other hand, the $23,062.22 that was paid to the Agency closely approximates the amount accrued at that time. Accordingly, we agree with the Agency that the most likely explanation for the $28,930.26 payment was that it satisfied the other judgments rendered by the Final Decree.
{¶19} The first assignment of error is without merit.
{¶20} In the second assignment of error, Biats argues that he "was not credited with all the payments made to Appellee." Appellant's brief at 8. For the reasons explained under the first assignment of error, the $28,930.26 was not a payment made to the Agency.
{¶21} Biats also argues under this assignment that, "[e]ven if it was eventually determined that Appellant was not entitled to this credit, the payment is a defense to the failure to pay at that time." In other words, Biats' belief that he was entitled to a $28,930.26 credit is evidence that he "did not willfully violate the court's order." Appellant's brief at 9. Again, we disagree.
{¶22} As an initial matter, "[p]roof of purposeful, willing or intentional violation of a court order is not a prerequisite to a finding of contempt." Pugh v. Pugh, 15 Ohio St.3d 136, 472 N.E.2d 1085 (1984), paragraph one of the syllabus.
{¶23} Secondly, the claim is not supported by the evidence. As noted by the magistrate, as well as the Agency, Biats did not raise the claim that he was not credited for the February 2011 payment until December 2019. Regardless of whether res judicata applies to bar the claim, the delay of almost nine years in raising it is a very strong indication that Biats was either unaware of the alleged credit or did not believe that it reduced the amount of arrearage. In either case, his failure to make spousal support payments is not excused. Also, as noted by the magistrate, the amount of arrearage owed by Biats was stated by the trial court in at least seven Judgment Entries between 2014 and 2017, with the highest amount being $147,318.01 in a May 23, 2016 Entry. Yet Biats never disputed these figures. Relative to the most recent contempt proceedings, in a July 20, 2017 Entry, it was determined that the support obligation had terminated with Adams' remarriage in June 2017 but that Biats continued to owe $3,600.00 plus a processing fee per month against an arrearage of $132,999.65. Carlucci testified on behalf of the Agency that Biats' last payment of $125.92 was made in May 2019 or about five months before the filing of the Motion to Show Cause and seven months before the filing of the Motion for Refund of Overpayment. Again, this evidence does not support the claim that Biats failed to comply with the order to pay support in the mistaken belief that no arrearage existed.
{¶24} The second assignment of error is without merit.
{¶25} In the third assignment of error, Biats argues that the trial court did not set conditions for him to purge the contempt finding. Dilley, 2015-Ohio-1872, ¶ 18 ("[b]efore the imposition of a sentence for civil contempt, the trial court must afford the contemnor an opportunity to purge himself of the contempt").
{¶26} In the present case, the purge conditions were established by the January 16, 2020 Magistrate's Decision as follows: "Obligor may purge himself of contempt by paying $3600 per month, plus processing charge, commencing 1/1/20." On March 30, 2020, an Order was issued scheduling the matter for a purge hearing, noting that Biats' presence at the hearing would be excused "if he has paid as ordered since the last hearing." The trial court's May 11, 2020 Judgment Entry overruled Biats' objections, adopted the Magistrate's Decision in its entirety, and scheduled a purge hearing before the magistrate on June 3.
{¶27} On June 3, 2020, a purge hearing was held as scheduled. The magistrate found that "Obligor has failed to make the payments required to purge himself of contempt for this purge period," and that "[h]e paid $0 during the purge period." The magistrate scheduled a sentencing hearing for September 14, which would be continued on Biats' motion. On June 4, 2020, the court issued another Judgment Entry in which it again adopted the Magistrate's Decision, finding no error of law or other defect on the face of it, and stating expressly the conditions of purge, i.e., "paying $3,600 per month towards arrears, plus processing charge." On July 19, 2021, the sentencing hearing was held at which the trial court imposed a sentence of 30 days in the Ashtabula County Jail.
{¶28} We find that Biats was fairly apprised of the purge conditions. The third assignment of error is without merit.
{¶29} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas, finding Biats in contempt and imposing sentence, is affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, P.J., CYNTHIA WESTCOTT RICE, J., concur.