Opinion
No. 76609.
December 21, 2000.
CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Juvenile Court Division, DR-231776.
Anthony Hunter, Pro Se, No. 322-916, Lebanon, Ohio, for Plaintiff-Appellee.
Cuyahoga Support Enforcement Agency, Cleveland, Ohio, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
This is an appeal from an order of Juvenile Court Judge Robert A. Ferrari that dismissed appellant Anthony Hunter's pro se objections to a support order of appellee Child Support Enforcement Agency ("CSEA"). Hunter contends he was incarcerated and requested a continuance of the hearing on his objections. He claims it was error to dismiss his objections for lack of prosecution and we agree. We vacate the order and remand.
We note that, despite notice and service, the CSEA has not filed an appellee's brief. App.R. 18(C) provides:
If an appellee fails to file his brief within the time provided by this rule[, twenty days after service of the appellant's brief], * * * he will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action.
We accept as correct Hunter's statement of the facts and issues, because they do not conflict with our review of the record contained in the Juvenile Court file.
On July 28, 1998, an administrative hearing officer issued an order in accordance with R.C. 3111.22 which established the parent-child relationship between Hunter and the child, James Hunter, born November 4, 1987. Hunter did not receive notice of this order, and the record does not disprove this conclusion. Contrary to the assertion of the dissent, even if Hunter had received notice, however, he could not have filed an appeal from the parentage order and would have, as he did here, wait for the entry of a support order. Marsh v. Clay (July 20, 1995), Cuyahoga App. NO. 67854, unreported.
Later, on August 31, 1998, the CSEA held a hearing for the purpose of determining Hunter's support obligation. Pamela Teague, James' mother, appeared at the hearing but Hunter did not receive notice of the hearing as required pursuant to Ohio Admin. Code 5101:1-32-03(G), and the record does not disprove this conclusion.
In an order dated September 22, 1998, the CSEA made the following findings of fact:
1. That on July 28, 1998, the parent-child relationship was established between the father, Anthony Hunter, and the child, James Hunter pursuant to an order made by an administrative hearing officer of the Cuyahoga Support Enforcement Agency in accordance with Section 3111.22 of the Ohio Revised Code and that thirty (30) days have passed since the issuance of said order which order is now final.
2. That the child, James Hunter, resides with the mother, Pamela Teague, hereinafter referred to as "OBLIGEE" and that the father, Anthony Hunter, hereinafter referred to as "OBLIGOR" has a duty for the payment of child support to the mother and/or her assigns.
3. That the Obligor is currently incarcerated.
4. That the Obligee is a recipient of means-tested assistance (TANF).
5. That Obligor's current support obligation, as determined under the guidelines embodied in Ohio Revised Code Section 3113.215, is $50.00 per month, WHEN RELEASED.
6. That health insurance coverage for the child who is the subject of this order is not available at a reasonable cost through a group health insurance or health care policy, contract, or plan offered by the Obligor's employer or through any other group health insurance or health care policy, contract, or plan available to the Obligor or the Obligee.
On October 20, 1998, Hunter filed a "Motion in Objection to the C.S.E.A. Administrative Order," pursuant to R.C. 3111.22(C)(4)(b) and R.C. 2151.231 in the juvenile court. In his brief in support, he argued that the September 22, 1998 order should be set aside because he did not receive notice of the August 31, 1998 support obligation hearing. He also requested that the cause be continued until he received discovery of all of the records the hearing officer relied upon in rendering her findings of facts as set forth in the September 22, 1998 order. He further alleged that he was indigent and could not afford counsel to represent him. The CSEA did not file a response to his "motion."
On November 23, 1998, the case was assigned to the judge's docket and referred to Magistrate Darlene Amato-Bursnahan for a Monday, February 1, 1999 pretrial hearing. On the Monday preceding the hearing date, January 26, 1999, Hunter filed a motion for continuance, indicating that he could not personally attend any pretrial hearings because of his incarceration in the Lebanon Correctional Institution. He suggested that, since his obligation did not arise until after his release from prison (with the earliest possible parole date of December 2003), no one would endure prejudice if the action were continued until that time. He asserted a denial of his right to due process because he had not had any opportunity to participate in any hearing associated with the matter. "It is my contention," he wrote, "that a fair and just judgement for support to the established parent [-] child relationship, can be better established with my presence." The CSEA did not file a response to the motion.
Cuyahoga County, Juvenile Div., Loc.R. 10(A) requires the movant to submit all requests for continuances "to the assigned Judge or Referee in writing at the earliest time possible, at least three working days before the day of trial or hearing."
The magistrate filed her decision on February 4, 1999, indicating that although both Hunter and Teague failed to appear, an assistant county prosecutor was present. She recommended that the case be dismissed because Hunter "failed to appear and provide Court with evidence to [ sic] as to his Objection to the Administrative Order issued on 8-31-98. Administrative Order shall be this Court's Order until further order of Court." It further required him to pay court costs of $67.99 within (30) days upon his release from prison.
On February 19, 1999, Hunter filed his objections, noting that before the time of the hearing, his motion for continuance had not been ruled upon. He also asserted that the CSEA administrative order should not become final until after he is released from prison, when "a realistic plan may be agreed upon to assure the child[']s, mother's and gather's rights are protected." Hunter further argued that the court could have issued a capias ad respondendum to assure his presence at the time of hearing.
On May 20, 1999, the judge confirmed, approved, and adopted the magistrate's decision, essentially dismissing this action based upon Civ.R. 41(B)(1) and (4), an involuntary dismissal with prejudice for failure to prosecute.
In his single assignment of error, Hunter argues:
THE COURT ERRED IN APPROVING THE MAGISTRATE'S DECISION TO DISMISS APPELLANT'S CASE DUE TO HIS FAILURE TO APPEAR, WHERE APPELLANT FILED A MOTION FOR CONTINUANCE INFORMING THE COURT OF THE IMPOSSIBILITY TO APPEAR DUE TO INCARCERATION.
As he asserted below, Hunter continues to claim that the CSEA failed to serve him with the order establishing the parent-child relationship or with notice of hearing on the question of support and, therefore, he was denied his opportunity to timely object. He also argues that the "motion in objection," which contained his affidavit attesting to the lack of service, provided the magistrate with evidence of his objection, contrary to the conclusion of both the magistrate and the judge. In addition, Hunter contends that his motion for continuance should have been granted until such time as an alternative method of recording his testimony for purposes of trial could be used. He further argues that because the CSEA did not respond to his requests for discovery the case should have been continued. Finally, he states it was error to tax costs to him because he is indigent.
While we do not agree with the contention that a four-year continuance is "reasonable" under the circumstances, we do agree that the action should not have been dismissed in light of the fact that CSEA did not contest Hunter's verified assertion that he did not receive notice of the support obligation hearing in accordance with R.C. 3111.22(C)(5)(c) and Ohio Admin. Code 5101:1-32-03(G). Despite Hunter's absence at the hearing, the judge should have considered the effect upon his rights resulting from the lack of notice of the administrative support obligation hearing and rendered appropriate relief.
The legislature amended the statute in 1999, H.B. 471, effective July 1, 2000. This section is now found at R.C. 3111.22(E)(1).
Contrary to the dissenting opinion, we do not conclude that the judge erred in denying the motion for continuance; we conclude that the judge improperly dismissed the action without considering the merits of Hunter's uncontested, verified assertion that he did not receive notice of the administrative support obligation hearing as required by both statute and administrative rule.
We further note that the record does not contain the child support computation worksheet required by R.C. 3113.215(E). This is an additional and independent reason for reversal of this action. E.g., Brooks v. King (June 23, 2000), Lawrence App. No. 99 CA 24, unreported.
Contrary to the assertion of the dissent, Hunter could not have filed a direct appeal from the parentage order. Marsh v. Clay (July 20, 1995), Cuyahoga App. No. 67854, unreported.
The judgment is vacated and the action is remanded for further proceedings consistent with this opinion.
It is ordered that the appellant recover from appellee his costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court, Juvenile Court Division, 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.
DIANE KARPINSKI, P.J., CONCUR; MICHAEL J. CORRIGAN, J., DISSENTS (SEE DISSENTING OPINION).
I must respectfully dissent from the majority as I would affirm the order of the trial court because there was no reasonable basis upon which the trial court could have granted the appellant's motion for a continuance as the appellant never stated the basis for his objection(s) to the administrative support order.
This case came to be heard on the appeal of appellant Anthony Hunter from the decision of the Cuyahoga County Juvenile Court overruling appellant's objection to the September 22, 1988 administrative order of appellee Cuyahoga Support Enforcement Agency (hereinafter "CSEA") which required appellant to pay the amount of $50.00 per month in child support for the support of his son, James Hunter.
On September 22, 1998, an administrative order was issued by a CSEA administrative hearing officer subsequent to a hearing on August 31, 1998, which included the following findings of fact:
1. That on July 28, 1998, the parent-child relationship was established between the father, Anthony Hunter, and the child, James Hunter, pursuant to an order made by an administrative hearing officer of the Cuyahoga Support Enforcement Agency in accordance with Section 3111.22 of the Ohio Revised Code and that thirty (30) days have passed since the issuance of said order, which order is now final.
2. That the child, James Hunter, resides with the mother, Pamela Teague, hereinafter referred to as "OBLIGEE" and that the father, Anthony Hunter, hereinafter referred to as "OBLIGOR" has a duty for the payment of child support to the mother and/or her assigns.
3. That the Obligor is currently incarcerated.
4. That the Obligee is a recipient of means tested public assistance (TANF).
5. That Obligor's current support obligation, as determined under the guidelines embodied in Ohio Revised Code Section 3113.215 is $50.00 per month, WHEN RELEASED. (Emphasis sic.)
The majority points out that the trial court failed to make part of the record the child support computation worksheet as required by R.C. 3113.215(E). See DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 538, 679 N.E.2d 266, citing Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496. The failure to include these worksheets in the record was harmless error as the child support determination appealed from merely obligated the appellant to pay the minimum amount of child support possible under the "Basic Child Support Schedule" found in R.C. 3113.215(D).
The order went on to require that appellant make child support payments in the amount of $50.00 per month commencing thirty days from his release from incarceration. The CSEA was required under law to hold the August 31, 1998 administrative hearing to determine the appropriate level of child support subsequent to the issuance of the administrative order determining the parentage of appellant. R.C. 311.22(E)(1).
On October 20, 1998, the appellant filed a "Motion in Objection to the C.S.E.A. Administrative Order." The grounds for the motion were that the appellant was purportedly not notified of the hearing and that he was not given the opportunity to conduct discovery prior to the hearing. The appellant never stated in his brief in support of his objection to the administrative order that he disputed in any manner the paternity or support determinations contained in the order.
A hearing on appellant's objection to the administrative order was set for February 1, 1999. The hearing was to be conducted by a juvenile court magistrate. Notification of the hearing date was sent to the parties on November 23, 1998. On January 26, 1999, less than a week prior to the scheduled hearing, the appellant filed a motion for continuance of the hearing date. As grounds for the motion, the appellant stated that he would remain incarcerated until at least December, 2003. Therefore, the appellant reasoned, no hearing should be conducted until he was released so that he would be able to protect "any and all rights I may have" and would be able to "contribute to the decision making process." In the motion for continuance, the appellant did not deny that he was the father of James Hunter, but, rather, stated "[i]t is my contention that a fair and just judgment for support to the established parent child relationship, can be better established with my presence." The appellant did not elaborate in the motion as to what exactly he hoped to contribute to the process by his presence.
The record does not reflect that the motion for continuance was ever ruled on prior to the February 1, 1999 hearing. On February 4, 1999, the magistrate's decision was released wherein it was recommended that the "[c]ase be dismissed as Father failed to appear and provide court with evidence to (sic) as to his objection to the Administrative Order issued on 8-31-98."
The appellant filed his "Objection to Magistrate's Decision" on February 19, 1999. As the basis for his objection to the decision, the appellant stated that his motion for continuance should have been granted because of the fact that he was incarcerated. The appellant also expressed concern that upon his release from prison he would be unable to meet his obligation of $50.00 per month, in part for the following reasons:
Upon party's release from incarceration, he would have a responsibility to the Ohio Adult Parole Authority. The conditions of that parole has (sic) yet to be determined, therefore to predetermine responsibilities as cited by the CSEA, may conflict with conditions of that parole, subsequently causing undue hardship and unrealistic burden.
* * *
It is the party's contention that due to his extensive prison record, which includes four separate adult incarcerations, and one juvenile incarceration, he may be unable to secure employment within the 30 day time requirement as imposed within the CSEA Administrative order. Therefore, to impose such requirements prior to knowing if the party will have to attend a Halfway House; Drug Program; Work Release Program; or any of many other post incarceration requirements which may be mandatory as a condition of Parole, is unfair and inconsiderate to the party's situation, and a possible threat to his freedom.
On May 20, 1999, a juvenile court judge overruled appellant's objections and adopted the magistrate's decision as the order of the court.
In his motion for continuance, the appellant did not request that he be able to attend the hearing on his objection to the administrative order via telephone or that he be given an opportunity to present a written statement on his behalf for consideration by the magistrate. Also, the appellant did not request that he be transported from Lebanon Correctional Institution for the purpose of attending the hearing. The appellant offered no evidence in the motion for the court's review and did not state what his testimony might be if he were given an opportunity to attend the hearing. Throughout the proceedings below and continuing through the within appeal the appellant has never denied that he is the natural father of James Hunter.
At the time that the appellant filed his objection to the administrative order he was facing a minimum of more than five additional years in prison before he had any hope for parole. Thus, the appellant was requesting a "continuance" of at least five years without ever stating any concrete reason for the request.
The decision to grant or deny a request for a continuance is within the broad discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion. State v. Burke (1995), 73 Ohio St.3d 399, 407, 653 N.E.2d 242; State v. Grant (1993), 67 Ohio St.3d 465, 479, 620 N.E.2d 50; State v. Powell (1990), 49 Ohio St.3d 255, 259, 552 N.E.2d 191. An abuse of discretion is more than an error of law or judgment. It implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
This court should not conclude that the trial court erred in not granting the appellant a continuance of the February 1, 1999 hearing date because the appellant failed to state with specificity any acceptable reason for continuing the hearing for a period of nearly five years. The appellant's last minute motion was clearly filed in an attempt to delay the proceedings indefinitely, rather than for the purpose of allowing the appellant to vindicate his constitutional and/or statutory rights to participate in the process. The fact that the appellant thought that he might have trouble meeting his nominal statutorily determined support obligations upon his release was not a valid reason for the court to grant an indefinite continuance. The majority opinion herein effectively countenances the appellant's transparently obstructive behavior.
In his motion for continuance, the appellant states "[m]y earliest possible Parole Board date is December 2003, therefore, to expedite a disposition of this matter would be of no real value."
Although the appellant believes that it was "inconsiderate" for the trial court to order him to pay the staggering sum of $50.00 in child support for the care of his son, commencing thirty days from the appellant's release from jail, that amount is reasonable under the statutory child support guidelines found in R.C. 3113.215. Any error by the trial court in not ruling on the motion for continuance, which was filed a mere six days prior to the scheduled hearing, was plainly harmless as there is nothing in the record to suggest that the appellant could have offered any evidence which would have impacted the findings of the court if a continuance had been granted.
R.C. 3113.215(D) "Basic Child Support Schedule" provides that the minimum amount of child support to be paid pursuant to an administrative child support order, unless the combined gross income of both parents is less than sixty-six hundred dollars ($6600.00), is six hundred dollars ($600.00) per year. This is the exact amount which the appellant was ordered to pay in the instant case. Even where the combined gross income of both parents is less than sixty-six hundred dollars ($6600.00) per year the responsible court or agency must still determine the obligor's child support obligation on a case by case basis using the schedule as a guideline unless the obligor "proves to the court or agency that the obligor is totally unable to pay child support and the court or agency determines that it would be unjust or inappropriate to order the payment of child support * * *." R.C. 3113.215(B)(2)(a).
The majority finds that:
Regardless of Hunter's absence at the hearing, the judge should have considered the affect upon his rights resulting from the lack of notice of both the administrative parentage order and administrative support obligation hearing and rendered appropriate relief.
Initially, I must stress that the appellant never attempted to object to the determination of parentage made in the administrative parentage order of July 28, 1998 and does not question the findings therein. Therefore, the trial court did not have jurisdiction to consider the impact upon appellant's rights of that order. R.C. 3111.22(D) states:
Although the language in this statute requiring that an action be brought within thirty days after the date which the administrative officer issued the order could not be less ambiguous, the majority cites Marsh v. Clay (July 20, 1995), Cuyahoga App. No. 67854, unreported, for the proposition that "Hunter could not have filed a direct appeal from the parentage order." In order for the appellant to have challenged the determination, he was required to initiate an action under sections 3111.01 to 3111.19 within thirty days. Having failed to initiate an action to challenge the parentage order within thirty days, the administrative order is " final" and " may not be challenged." In Marsh the plaintiff filed an action in Domestic Relations Court seeking orders for establishment of paternity, child support and medical coverage. This court held in Marsh that the trial court's order establishing paternity was not final and appealable under R.C. 2505.02 and Civ.R. 54(B) because the child support and medical coverage claims brought by the plaintiff in the same action remained unresolved and there was no express determination made in the order establishing paternity that "there is no just reason for delay." R.C. 2505.02 and Civ.R. 54(2) clearly are not applicable to administrative orders made under R.C. 3111.22(D).
When an administrative officer issues an administrative order determining the existence or non-existence of a parent and child relationship pursuant to division (C)(2)(a) or (c) of this section, the * * * alleged father * * * of the child may object to the determination by bringing, within thirty days after the date the administrative officer issued the order, an action under sections 3111.01 to 3111.19 of the Revised Code in the juvenile court in the county in which the agency that employs the administrative officer is located. If the * * * alleged father * * * does not bring an action within that thirty day period, the administrative order is final and enforceable by a court and may not be challenged in an action or proceeding under Chapter 3111. of the Revised Code. (Emphasis sic.)
The appellant did not object to the July 28, 1998 administrative parentage order and thus was prohibited from challenging that determination in future proceedings. The order from which the appellant filed his objection was the September 22, 1998 administrative support order. Thus, the appellant was entitled to contest only the support determination made in the September 22, 1998 order, and the issue of parentage was not properly before the court. The majority states that the trial court should have "considered" the "affect upon [appellant's] rights" and then rendered appropriate relief. This statement presumes that the trial court did not consider the appellant's rights in its ruling on his objections to the support order from which this appeal was taken. Given that the trial court ordered the appellant to pay the minimum amount of support possible under the guidelines commencing thirty days from his release and did not order that a percentage of the monies earned by the appellant while in prison be paid to the state department of job and family services, as permitted by R.C. 3113.16(B), it is apparent that the rights of the appellant were duly considered by the trial court. Furthermore, the majority opinion provides the trial court with absolutely no guidelines as to the "appropriate relief" that is to be rendered upon the trial court's consideration of the "affect" of its order on the appellant's rights. Given that the majority concedes that a "four-year continuance" (the actual continuance would have had to have been at least four years and ten months from the date of the hearing) was not a reasonable request and that the appellant never requested to be transported from prison for the purpose of attending the hearing, it is unclear what sort of accommodation of the appellant's circumstances the majority has in mind.
The majority incorrectly characterizes the order appealed from as a "dismissal" of an action brought by the appellant. This appeal does not involve a dismissal of a lawsuit, but rather is an appeal from the trial court's order overruling appellant's objections to an administrative order. Thus, Civ.R. 41(B)(1) and (4) have no applicability to this case whatsoever.
Accordingly, I would affirm the order of the trial court.