Osborne v. Osborne, 082115 OHCA2, 26624

Docket Nº26624
Opinion JudgeWELBAUM, J.
Party NameKIMBERLY OSBORNE, nka WINHOVER Plaintiff-Appellee v. JAMIE OSBORNE Defendant-Appellee
AttorneyKIMBERLY WIN HOVER, Plaintiff-Appellee-Pro Se. JAMIE OSBORNE, Defendant-Appellee-Pro Se. TRAVIS E. TINKHAM, Atty. Reg. No. 0089546, Montgomery County Support Enforcement Agency Attorney for Appellant-MCCSEA.
Judge PanelFAIN, J. and DONOVAN, J., concur.
Case DateAugust 21, 2015
CourtCourt of Appeals of Ohio

2015-Ohio-3382

KIMBERLY OSBORNE, nka WINHOVER Plaintiff-Appellee

v.

JAMIE OSBORNE Defendant-Appellee

No. 26624

Court of Appeals of Ohio, Second District, Montgomery

August 21, 2015

Appeal from Domestic Relations Court Trial Court Case No. 1999-DM-842

KIMBERLY WIN HOVER, Plaintiff-Appellee-Pro Se.

JAMIE OSBORNE, Defendant-Appellee-Pro Se.

TRAVIS E. TINKHAM, Atty. Reg. No. 0089546, Montgomery County Support Enforcement Agency Attorney for Appellant-MCCSEA.

OPINION

WELBAUM, J.

{¶ 1} Appellant, Montgomery County Child Support Enforcement Agency ("MCCSEA"), appeals from a judgment overruling MCCSEA's objections to a magistrate's ruling. The magistrate had held that MCCSEA was not entitled to collect an additional two percent in processing charges on a processing fee arrearage of $301.91 owed to MCCSEA.

{¶ 2} MCCSEA contends that the trial court abused its discretion and erred in refusing to allow collection of the processing fee. We conclude that the trial court erred in refusing to let MCCSEA collect the additional two percent processing charge on the processing fee arrearage. The statutes pertaining to assessment of processing charges are ambiguous, and prior interpretation, which allowed collection of these additional fees, has not been disturbed by the legislature. Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 3} This case has a long history. In January 2000, a final judgment and decree of dissolution was filed. At that time, the parties agreed to shared parenting of their two children, B.O. and A.O., who were ages 7 and 5, respectively. However, no support was ordered. The shared parenting order was terminated in June 2001, and custody was given to the father, Jamie Osborne. Kimberly Osborne n/k/a Winhover was not ordered to pay support until April 2003, at which time she agreed to pay minimum support of $50 per month per child.1 The support order included a two percent processing charge. In August 2003, MCCSEA added an administrative default order, which required Kimberly to pay $22 per month on an arrearage in addition to her regular payment.

{¶ 4} Over the next several years, a series of motions for contempt were filed, and various contempt and review hearings were held, based on Kimberly's failure to pay. At times when Kimberly was employed, withholding notices were issued. For example, in October 2006, a notice to withhold $124.44 per month was issued, representing $50 per month per child for two children and $22 per month on the arrearage, plus a two percent Support Enforcement Agency ("SEA") administrative fee ($2.44) on the total payment amount of $122.

{¶ 5} In May 2010, B.O. was ordered emancipated, effective June 10, 2010. According to the records, Kimberly's arrearage as of March 31, 2010 was about $1, 180. MCCSEA was ordered to report to the court when the arrearage had been paid in full.

{¶ 6} Another notice of emancipation was filed in February 2013, with respect to A.O. At that time, the unaudited arrearage was about $3, 014. An agreed order was filed in late February 2013, stating that A.O. had been emancipated on September 3, 2012. The agreed order also terminated child support, effective September 3, 2012, and ordered Kimberly to pay $100 monthly on the existing arrearage.

{¶ 7} Another review hearing was held in August 2013, at which time Kimberly indicated that she expected the release of an intercepted tax refund of $1, 371 in six months, which, with her additional monthly payments, would pay the account in full. The matter was set for further review on February 28, 2014.

{¶ 8} On March 3, 2014, the magistrate filed an order indicating that an involuntary payment had been made on the child support account that had reduced the child support arrearage to zero. However, an administrative fee arrearage of more than $200 was still owed to MCCSEA. The magistrate ordered Kimberly to pay $25 per month on the fee arrearage until paid in full. In addition, the magistrate set a review hearing for August 29, 2014. The order also stated that all payments of support should include the two percent SEA fee.

{¶ 9} When the review hearing was held on August 29, 2014, the child support account had an arrearage balance of zero, but the fee arrearage owed to MCCSEA was $301.19. At that time, the magistrate ordered Kimberly to continue paying $25 per month on the administrative fees owed. However, the magistrate also ordered that Kimberly would not be required to pay a two percent processing charge on the administrative fees that were owed.

{¶ 10} On October 7, 2014, MCCSEA filed a praecipe for a transcript of the hearing on August 29, 2014; objections to the magistrate's decision; and a motion for leave to file objections out of time, since the objections to the magistrate's decision had been due by September 18, 2014. The trial court granted the request. No transcript was filed, because it was not requested, and a transcript, therefore, was not available to the trial court.

{¶ 11} Subsequently, on February 18, 2015, the trial court filed a decision overruling MCCSEA's objections and refusing to apply a two percent processing charge to collection of the administrative fee arrearage. MCCSEA now appeals from the judgment of the trial court.

II. Alleged Error in Refusing to Include the Two Percent Processing Fee

{¶ 12} MCCSEA's sole assignment of error states that:

The Trial Court Abused Its Discretion and Committed an Error of Law by Not Including the Two Percent Processing Charge Required by R.C. 3119.27(A) When Modifying Repayment of the Arrearage on a Support Order Consisting of Unpaid Processing Charges Accumulated Over the Life of the Support Order.

{¶ 13} Under this assignment of error, MCCSEA contends that R.C. 3119.27(A) mandates that a two percent processing fee be imposed on all support orders and that R.C. 3119.28 applies those charges to...

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