532 N.E.2d 213 (Ohio App. 10 Dist. 1988), 87AP-1041, Hamilton v. Hamilton

Docket Nº87AP-1041.
Citation532 N.E.2d 213, 40 Ohio App.3d 190
Opinion JudgeSTEPHENSON, J.
Party NameHAMILTON, Appellant, v. HAMILTON, Appellee.
AttorneyRobert N. Wistner Co., L.P.A., and Robert N. Wistner, Dublin, for appellant., Bruce Hamilton, pro se. Robert N. Wistner Co., L.P.A., and Robert N. Wistner, for appellant., Bruce Hamilton, pro se.(fn1)
Judge PanelSTRAUSBAUGH and McCORMAC, JJ., concur.
Case DateAugust 02, 1988
CourtUnited States Court of Appeals (Ohio)

Page 213

532 N.E.2d 213 (Ohio App. 10 Dist. 1988)

40 Ohio App.3d 190

HAMILTON, Appellant,

v.

HAMILTON, Appellee.

No. 87AP-1041.

Court of Appeals of Ohio, Tenth District, Franklin.

August 2, 1988

Syllabus by the Court

1. An attorney fees award in child support enforcement proceedings constitutes additional child support. Consequently, the mandatory wage withholding procedures of R.C. 3113.21 apply.

2. In a child support enforcement proceeding, when the trial court finds the obligor in contempt and orders him to pay the arrearage by payroll deduction, plus a sum as litigation expense money for the custodial parent, it is error for the trial court to refuse to treat the expense money award as additional child support with payment to be enforced by the same payroll procedures pursuant to R.C. 3113.21. [40 Ohio App.3d 191]

Robert N. Wistner Co., L.P.A., and Robert N. Wistner, Dublin, for appellant.

Bruce Hamilton, pro se. 1

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Franklin County Court of

Page 214

Common Pleas, Division of Domestic Relations, which, inter alia, overruled the objection of Kathleen Hamilton, plaintiff below and appellant herein, to a referee's report which denied a request that attorney fees expended by appellant in a post-divorce child support contempt proceeding be withheld from the personal earnings of Bruce Hamilton, defendant below and appellee herein, pursuant to R.C. 3113.21.

Appellant assigns the following error:

"In a child support enforcement proceeding, when the Trial Court finds the payor in contempt, and orders him to pay the arrearage by payroll deduction, plus $1,500.00 as litigation expense money for the custodial parent, it is error for the Trial Court to refuse to treat the expense money as additional child support with payment to be enforced pursuant to the same payroll deduction procedures pursuant to House Bill 509 (Section 3113.21, Revised Code)."

On November 28, 1975, the parties herein were married and three children were born as issue of such marriage: Nicolle Kathleen (born October 24, 1978); Michelle Marie (born December 31, 1979); and Megan Colleen (born June 28, 1984). On August 19, 1986, appellant filed a complaint seeking a divorce on the grounds that appellee had been guilty of extreme cruelty and gross neglect of duty.

On February 19, 1987, the trial court entered a decree of divorce in favor of appellant, finding appellee guilty of gross neglect of duty. The trial court granted custody of the parties' minor children to appellant and ordered appellee to pay child support in the amount of $30 per week per child to increase to $55 per week per child when appellee's gross income reached $18,000 per year. Appellee was additionally ordered to pay $990 in back temporary child support, to provide appellant with quarterly reports on his gross income, and to pay half of all medical, dental, optical and orthodontic expenses not covered or reimbursed by appellee's insurance coverage.

On February 19, 1987, the trial court filed an entry ordering appellee's employer, Remax/R.C.I. Group, to withhold from his personal earnings a sum equal to $90 per week for child support, plus poundage. On March 10, 1987, the trial court filed an entry ordering appellee to notify the court in writing of any change in employment, including self-employment, with such notification to include a description of the nature of any new employment in accordance with R.C. 3113.21.

On June 17, 1987, appellant filed a multi-branch motion seeking, inter alia, an order finding appellee in contempt of court for his failure to pay child support as ordered, his failure to provide quarterly reports of gross income, and for his failure to notify the court of his change of place of employment, and an order awarding appellant expense money for the necessity of prosecuting the contempt motion. A hearing was held before a court-appointed referee on appellant's motions and, on August 7, 1987, a referee's report was filed which recommended finding appellee in contempt of prior court orders. Although appellant's attorney had testified to attorney fees incurred by appellant of $1,500 plus costs of $55, the referee [40 Ohio App.3d 192] recommended that appellee pay appellant's attorney fees in the amount of $750 plus costs of $55.

On August 13, 1987, the referee filed a supplemental report further recommending that appellee be permitted to purge himself of contempt by, inter alia, paying through employer wage withholding an additional sum of $10 per week per child on the child support arrearage until such was paid in full. It was also recommended that appellant be granted judgment for the previously recommended amount of attorney fees and costs.

On August 21, 1987, appellee filed objections to the report and recommendations of the referee. On August 28, 1987, appellant filed objections to the report and supplemental report of the referee, stating that the amount of expense money awarded was inadequate and that any expense money awarded was in the...

To continue reading

Request your trial
4 practice notes
  • 614 N.E.2d 1054 (Ohio App. 8 Dist. 1992), 62086, Oatey v. Oatey
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 23, 1992
    ...of "alimony" or as "necessaries" supplied to the parties' spouse or children, Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d 213, although some awards were not in fact made as part of alimony or child support obligations. E.g., Butler v. Butler (Apr. 17, 198......
  • 320 B.R. 661 (Bkrtcy.N.D.Ohio 2005), 04-14064, In re McLaughlin
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • February 1, 2005
    ...as support obligations. See e.g. Bratton v. Frederick, 109 Ohio App.3d 13, 16, 671 N.E.2d 1030; Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d It is hereby determined that the subject attorney fees are clearly intertwined with Thomas' litigation to obtain child support, which i......
  • Town Cntrs. Partnership v OH Attny Gen., 040400 OHCA10, 99AP-689
    • United States
    • April 4, 2000
    ...61 Ohio St.3d 93, 96. Legislative intent is primarily determined from the language of the statute itself. Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 193. "Premises" is not defined in R.C. Chapter 2915, and in the absence of a statutory definition, the usual and ordinary defi......
  • 671 N.E.2d 1030 (Ohio App. 3 Dist. 1996), 4-95-16, Bratton v. Frederick
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • January 31, 1996
    ...that other cases in domestic relations law have recognized attorneys fees as additional child support. In Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d 213, child support withholding laws were applied to collect attorney fees and litigation expenses awarded in a child support ......
4 cases
  • 614 N.E.2d 1054 (Ohio App. 8 Dist. 1992), 62086, Oatey v. Oatey
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 23, 1992
    ...of "alimony" or as "necessaries" supplied to the parties' spouse or children, Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d 213, although some awards were not in fact made as part of alimony or child support obligations. E.g., Butler v. Butler (Apr. 17, 198......
  • 320 B.R. 661 (Bkrtcy.N.D.Ohio 2005), 04-14064, In re McLaughlin
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • February 1, 2005
    ...as support obligations. See e.g. Bratton v. Frederick, 109 Ohio App.3d 13, 16, 671 N.E.2d 1030; Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d It is hereby determined that the subject attorney fees are clearly intertwined with Thomas' litigation to obtain child support, which i......
  • Town Cntrs. Partnership v OH Attny Gen., 040400 OHCA10, 99AP-689
    • United States
    • April 4, 2000
    ...61 Ohio St.3d 93, 96. Legislative intent is primarily determined from the language of the statute itself. Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 193. "Premises" is not defined in R.C. Chapter 2915, and in the absence of a statutory definition, the usual and ordinary defi......
  • 671 N.E.2d 1030 (Ohio App. 3 Dist. 1996), 4-95-16, Bratton v. Frederick
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • January 31, 1996
    ...that other cases in domestic relations law have recognized attorneys fees as additional child support. In Hamilton v. Hamilton (1988), 40 Ohio App.3d 190, 532 N.E.2d 213, child support withholding laws were applied to collect attorney fees and litigation expenses awarded in a child support ......