Rinehart v. Rinehart, 13-92-42

• Decision Date: 23 April 1993
• Docket Number: No. 13-92-42,13-92-42
• Parties: RINEHART, Appellant, v. RINEHART, Appellee.
• Court: Ohio Court of Appeals

Page 325

87 Ohio App.3d 325

622 N.E.2d 359

RINEHART, Appellant, v. RINEHART, Appellee.

No. 13-92-42.

Court of Appeals of Ohio, Third District, Seneca County.

Decided April 23, 1993.

Bonford R. Talbert, Jr., Tiffin, for appellant K. Denise Rinehart.

Paul F. Kutscher, Jr., Seneca County Pros. Atty., and Dawn D. Root, Asst. Pros. Atty., Tiffin, for appellant Seneca County Child Support Enforcement Agency.

Douglas A. Burtt, Tiffin, for appellee, James L. Rinehart.

SHAW, Judge.

Plaintiffs-appellants, K. Denise Rinehart (Mrs. Rinehart) and the Seneca County Child Support Enforcement Agency ("CSEA"), appeal the decision of the Seneca County Common Pleas Court in which defendant-appellee, James L. Rinehart (Mr. Rinehart), was found not to be in contempt of court.

The Rineharts were divorced on August 15, 1990. For support of the parties' two minor children, Mr. Rinehart was ordered to pay $150 per week.

On February 4, 1992, the CSEA filed an affidavit for a citation in contempt against Mr. Rinehart. The affidavit alleged that Mr. Rinehart had failed to comply with the August 15, 1990 court order and that, as of January 31, 1992, a $3,777.50 child support arrearage had accumulated. On May 8, 1992, the CSEA filed a motion in contempt accompanied by a supporting memorandum. A hearing was held on September 4, 1992. The trial court issued its judgment entry on October 20, 1992, finding that Mr. Rinehart was not in contempt of court.

Mrs. Rinehart and the CSEA thereafter brought the instant appeal, raising two assignments of error. In their second assignment of error, which we shall address first, appellants assert:

"The trial court's failure to consider plaintiff's and the CSEA's proposed findings of fact and conclusions of law violated Rule 6(A) of the Ohio Rules of Civil Procedure and is therefore prejudicial error."

Following the trial court's October 20, 1992 decision in the case, all parties filed requests for findings of fact and conclusions of law. In a judgment entry filed October 27, 1992, the trial court ordered that "each counsel shall have twenty-one (21) days from the file-stamped date of this entry to provide their findings of fact and conclusions of law."

On November 16, 1992, Mr. Rinehart filed his proposed findings of fact and conclusions of law. On November 17, 1992, Mrs. Rinehart and the CSEA separately filed proposed findings of fact and conclusions of law. On November 18, 1992, the trial court issued its findings of fact and conclusions of law, wherein the court found that only Mr. Rinehart had filed proposed findings of fact and conclusions of law within the twenty-one day time period.

Civ.R. 6(A) provides, in relevant part, as follows:

"In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the date of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday * * *."

In the case sub judice, the "date of the act, event, or default" was October 27, 1992, the date the trial court's entry was file-stamped. Upon counting the days, starting on October 28, 1992, pursuant to Civ.R. 6(A), we find that November 17, 1992 was the twenty-first day of the time period. Therefore, the proposed findings of fact and conclusions of law filed by appellants on November 17, 1992 were filed within the time period allotted by the trial court in its October 27, 1992 judgment entry. The trial court therefore erred in failing to consider those proposals and appellants' second assignment of error must be sustained.

In their first assignment of error, appellants assert:

"The trial court's finding that the defendant was not in contempt of court was an abuse of discretion."

R.C. 2705.02 provides, in relevant part:

"A person guilty of any of the following acts may be punished as for a contempt:

"(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer[.]"

R.C. 2705.031(B)(1) provides as follows:

"(B)(1) Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support. In Title IV-D cases, the contempt action for failure to pay support also may be initiated by an attorney retained by the party who has the legal claim, the prosecuting attorney, or an attorney of the department of human services or the child support enforcement agency."

In a civil contempt proceeding for failure to pay court-ordered support, the movant must prove, by clear and convincing evidence, that the defendant violated the court order at issue. See Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139, 15 OBR 285, 287, 472 N.E.2d 1085, 1088; see, also, Internatl. Merchandising Corp. v. Mearns (1989), 63 Ohio App.3d 32, 37, 577 N.E.2d 1128, 1131. The movant, however, is not required to prove that the defendant's disregard of the court...