Tillimon v. Wheeler, Court of Appeals No. L-12-1018

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: SINGER
• Citation: 2012 Ohio 5804
• Decision Date: 07 December 2012
• Docket Number: Court of Appeals No. L-12-1018,Trial Court No. CVG 10-04705
• Parties: Duane J. Tillimon Appellant v. Anthony Wheeler, et al. and Fifth Third Bank Appellee

2012 Ohio 5804

Duane J. Tillimon Appellant
v.
Anthony Wheeler, et al. and Fifth Third Bank Appellee

Court of Appeals No. L-12-1018
Trial Court No. CVG 10-04705

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Decided: December 7, 2012

DECISION AND JUDGMENT

Duane J. Tillimon, pro se.

Rachael L. Rodman and Joseph C. Krella, for appellee Fifth Third Bank.

SINGER, P.J.

{¶ 1} Appellant appeals the judgment of the Toledo Municipal Court denying his motion to hold a responding financial institution in contempt for failing to render funds in a garnishment. Because we conclude that appellant failed to show that appellee bank responded improperly to a garnishment order, we affirm.

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{¶ 2} Appellant, Duane J. Tillimon, is a creditor by virtue of a judgment against Anthony Wheeler and Andrew Wheeler. On July 7, 2011, appellant instituted a non-wage garnishment for funds of Andrew Wheeler in accounts held with appellee, Fifth Third Bank. The bank identified a checking account held jointly by Andrew Wheeler, Margaret S. Wheeler and Diane R. Harris.

{¶ 3} Pursuant to rules promulgated by the U.S. Treasury Department, on receipt of the garnishment notice appellee conducted an account review to determine whether the account was the recipient of funds exempt from garnishment by federal law. Appellee's review revealed that $890 had been direct deposited into the account by the Social Security Administration for Margaret Wheeler. On July 18, 2011, appellee returned its answer to the garnishment order, accompanied by $14.79.

{¶ 4} On August 17, 2011, appellant filed a "Motion for order for Fifth Third Bank to show cause why it should not be found in contempt of the court's garnishment order dated July, 7, 2011 and to find Fifth Third in contempt and grant judgment against Fifth Third Bank in the amount of the judgment against Andrew Wheeler with affidavit of Duane J. Tillimon and Praecipe for service of this motion on Fifth Third Bank." Appellee responded with a memorandum in opposition, maintaining that it had returned the proper amount and that the other funds in the account were exempt from execution by federal law.

{¶ 5} A hearing on appellant's motion was held before a magistrate on October 27, 2011. At the conclusion of the hearing, the magistrate found appellant's motion not

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well-taken. On appellant's motion, the magistrate subsequently issued findings of fact and conclusions of law. Appellant's objections to this order were overruled. The trial court adopted the magistrate's order.

{¶ 6} Appellant now brings this appeal, setting forth the following single assignment of error:

The trial court committed reversible error in not enforcing the non-wage garnishment of the judgment debtor's joint bank account because the judgment debtor had unrestricted access to the account and therefore the money in the account was not exempt from garnishment.

{¶ 7} Appellant spends substantial energy arguing that the hearing on his motion for contempt was not a hearing on his motion, but a hearing on the garnishment exemption. The distinction is important because, in a hearing to establish a garnishment exemption, the burden of proof rests with the judgment debtor to prove the existence of an exemption. E. Liverpool v. Buckeye Water Dist., 7th Dist. Nos. 11 CO 41, 11 CO 42, 2012-Ohio-2821, 972 N.E.2d 1090, ¶ 39.

{¶ 8} In a proceeding for civil contempt the burden of proof is with the movant to prove that the alleged contemnor violated a court order. Reinhart v. Reinhart, 87 Ohio App.3d 325, 328, 622 N.E.2d 359 (3d Dist.1993). Moreover, as appellant is aware, the decision concerning civil contempt rests within the...