Hamilton v. Hamilton, 87AP-1041
| Decision Date | 02 August 1988 |
| Docket Number | No. 87AP-1041,87AP-1041 |
| Citation | 532 N.E.2d 213,40 Ohio App.3d 190 |
| Parties | HAMILTON, Appellant, v. HAMILTON, Appellee. |
| Court | Ohio Court of Appeals |
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.
Robert N. Wistner Co., L.P.A., and Robert N. Wistner, Dublin, for appellant.
Bruce Hamilton, pro se. 1
This is an appeal from a judgment entered by the Franklin County Court of 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 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 nature of child support and as such should be enforced by wage withholding pursuant to R.C. 3113.21.
On October 6, 1987, the trial court issued a decision overruling appellee's objections to the report and supplemental report, sustaining appellant's objection with regard to the inadequacy of attorney fees awarded, and overruling appellant's objection which sought wage withholding of the attorney fees award. On October 21, 1987, the trial court entered judgment reflecting its earlier decision and those parts of the referee's report which it approved by ordering the withholding by appellee's employer of an additional $10 per week per child on the child support arrearage, which was $1,440 as of June 15, 1987, until it was paid in full and by ordering appellee to pay appellant $1,500 in attorney fees and $55 in costs. In accordance with the earlier decision, no order was entered requiring withholding attorney fees and costs arising from the contempt proceedings.
Appellant's sole assignment of error asserts that 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 $1,500 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 deduction procedures pursuant to R.C. 3113.21.
R.C. 3105.21 provides, in pertinent part, as follows:
R.C. 3113.21(D)(1)(a) provides for mandatory wage withholding of, inter alia, support payment orders when such orders were issued on or after December 1, 1986, by stating as follows:
* * *"
As used in R.C. 3113.21, "support order" means an order for the payment of support and "support" means "child support, alimony, and support for a spouse or former spouse." R.C. 3113.21(O )(6) and (7). Attorney fees are not expressly included within the definition of "support" as that term is utilized in the provisions for mandatory wage withholding pursuant to R.C. 3113.21(D)(1). Appellant essentially asserts that attorney fees incurred in the process of bringing a contempt motion due to the failure of the noncustodial parent to comply with a prior child support order constitute "child support" within the meaning of that term in R.C. 3113.21(O )(7).
The term "child support" is not defined in R.C. 3113.21 or any other relevant statute. Accordingly, the phrase must be read in context and construed according to the rules of grammar and common usage. R.C. 1.42; Bohacek v. Admr. Bur. of Emp. Services (1983), 9 Ohio App.3d 59, 9 OBR 78, 458...
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