Bursiel v. BursielBursiel v. Bursiel
DECISION AND JUDGMENT
Decided: April 30, 2021
Heather L. Carman, for appellee Huron County Child Support Enforcement Agency.
Gowri V. Hampole, for appellant.
*****
MAYLE, J.
{1} In this consolidated appeal, defendant-appellant, Michele A. Bursiel, now known as Michele A. Straka, appeals the June 14, 2019 judgment of the Huron County Court of Common Pleas (case No. H-19-015) and the April 6, 2020 judgment of the same court (case No. H-20-010). The Huron County Child Support Enforcement Agency filed an appellee brief with respect to cаse No. H-19-015. For the following reasons, we affirm.
{2} Stephen T. Bursiel (“Stephen“) and Michele A. Bursiel (“Michele“) were granted a divorce on December 5, 2000. Stephen and Michele had one child together, B.B., born in January of 2000. At the final divorce hearing, the court orally ordered Stephen to pay child support of $338.98 per month “plus administrative fees.” The judgment entry of divorce provided, however, that Stephen would pay child support of $338.98 per month “including poundage” to continue “until such time as [the] child is emancipated.”
{3} On February 28, 2018, the Huron County Child Support Enforcement Agency (“CSEA“) filed a “notice of child support investigation findings and recommendations to terminate child support order” in the divorce case—Huron County Court of Common Pleas case No. DR-2000-0491—recommending that Stephen‘s child support obligation end effective January 5, 2018, because B.B. had turned 18 and was no longer in school. The notice contained calculations reflecting that as of December 31, 2017, Michele had received excess child support payments of $9,303.49 and CSEA had been overpaid $153.20. The notice provided instructions for requesting an administrative hearing to object to the findings and recommendations, and specified that any such request be made in writing to CSEA within 30 days of receiving the notice. CSEA moved for an oral hearing regarding its findings and recommendations, which was set for April 18, 2018.
{5} CSEA, Stephen, and Michele, appeared before the magistrate on April 18, 2018. The court addressed the issue of the overpayment raised in CSEA‘s notice. It explained that in June of 2000, in connection with an action for a civil protection order, the court had issued a child support order requiring Stephen to pay child support of $378.78 per month. When the divorce action was filed, the court consolidated the cases. Its final judgment entry of divorce in December of 2000, ultimately reduced Stephen‘s child support obligation to $338.98, “including poundage,” which amounted to actual child support of $332.33 per month. But CSEA continued to collect $378.78 from Stephen, resulting in the overpayment calculated in the notice filed with the court. The magistrate continued the matter to May 23, 2018, so that Michele could retain counsel.
{6} With the renewed attention to the child-support obligаtion, it came to the court‘s attention that there was a discrepancy between what was stated orally at the final divorce hearing (i.e., that Stephen‘s child support obligation would be $338.98 per month “plus administrative fees“) and what appeared in the written judgment entry of divorce (i.e., that Stephen‘s child support obligation would be $338.98 per month “including poundage“). (Emphasis added.) On May 21, 2018, the court entered a nunc pro tunc
{7} The parties appeared for hearing on May 23, 2018; Michele appeared with counsel. The court identified three issues to be resolved in connection with CSEA‘s notice: (1) whether child support and medical provisions for B.B. should terminate effective January 5, 2018—which would depend on whether she was continuously enrolled full-time at an accredited high school; (2) whether there are arrears or overpayments with respect to the child support obligation; and (3) if there are arrears or overpayments, what to do about them. The court continued the hearing so that Michele could obtain a letter from B.B.‘s school verifying her school enrollment status. The matter was continued to July 11, 2018.
{8} On June 19, 2018, CSEA filed an “amended notice of child support investigation findings and recommendations to terminate child support order.” The amended notice continued Stephen‘s child support obligations through B.B.‘s nineteenth birthday and reflected that as of December 31, 2018, Michele will have recеived excess child support of $3,826.50, and CSEA will have been overpaid by $44.27. Again, the amended notice provided instructions for requesting an administrative hearing to object to the findings and recommendations, and specified that any such request be made in writing to CSEA within 30 days of receipt of the notice.
{9} The parties appeared for hearing on July 11, 2018, before the magistrate, at which time the magistrate observed that Michele had not requested an administrative
{10} An administrative termination hearing apparently took place on August 6, 2018, and a decision was issued August 9, 2018. CSEA concluded that Stephen‘s child support obligation and medical provision should terminate on B.B.‘s nineteenth birthday. The hearing decision provided instructions for objecting to the decision:
The obligee or obligor may object to the Administrative Termination Hearing Decision within 30 Days after the issuance of the Administrative Termination Hearing Decision by filing an action requesting a determination as to whether the child support order and medical support provisions should be terminated or whether any other appropriate determination regarding the order should be made. The action should be filed in the court with Jurisdiction over this order.
If neither the obligor nor obligor files an action to object to the Administrative Termination Hearing Decision within the 30 day period, the
Administrative Hearing Decision is final and the CSEA will forward thаt decision to the court for incorporation in a Court Order.
{11} The next docket entry that appears in case No. DR-2000-0491 is a “brief in opposition to motion to dismiss appeal and to continue the child support order until high school graduation,” filed by Michele on September 27, 2018. That brief indicates that Michele filed a notice of appeal from the administrative termination hearing decision dated August 9, 2018. An unsigned copy of the notice of appeal is attached to the brief.
{12} On March 29, 2019, the magistrate issued a decision adopting CSEA‘s August 9, 2018 hearing decision. The magistrate, taking judicial notice, explained that on September 10, 2018, Michele filed a notice of appeal from the August 9, 2018 hearing decision in a new action—Huron County Court of Common Pleas case No. CVF-2018-0703. According to the magistrate, that action was dismissed on January 31, 2019, because the trial court concluded that the August 9, 2018 hearing decision was not a final order. No further action was taken on that case, and no motion was filed in the divorсe proceedings—only the brief in opposition was filed in the divorce proceedings. The magistrate found that even construing that opposition brief as a motion, it was filed on September 27, 2018 (outside the 30-day period provided by
{14} Michele appealed the June 14, 2019 judgment, on July 15, 2019; the appeal was docketed as Huron County case No. H-19-015.
{15} Despite having filed her appeal, on November 1, 2019, Michele filed a
{16} The magistrate issued a decision journalized on February 10, 2020, denying the
{17} The trial court adopted the decision the same day, and we reinstated the appeal to our docket. On February 27, 2020, however, Michele filed objections in the trial court to thе magistrate‘s decision. In a judgment journalized on March 6, 2020, the trial court concluded that it lacked jurisdiction to rule on the objections because the appeal was pending in this court. We again remanded the case to the trial court for a decision on Michele‘s objections to the magistrate‘s decision. In a judgment journalized on April 9, 2020, the trial court overruled the objections as untimely.
{18} On April 28, 2020, Michele filed a notice of appeal from the April 6, 2020 judgment. The appeal was docketed as Huron County case No. H-20-010.
{19} In Huron County case No. H-19-015, Michele assigns the following errors:
Assignment of Error Number One.. [sic]
THE TRIAL COURT ABUSED ITS DISCRETION AND THE DECISION WAS CONTRARY TO THE EVIDENCE PRESENTED WHEN IT FOUND THAT THE CHILD SUPPORT OBLIGATIONS MUST TERMINATE AT THE AGE OF NINETEEN EVEN THOUGH THE CHILD WAS ATTENDING AN ACCREDITING [sic] HIGH SCHOOL FULL TIME THE CONTRATUAL [sic] LANGUAGE IN THE
DIVORCE DECREE SHOULD HAVE BEEN FOLLOWED, AS ALSO PROVIDED UNDER ORC 3119.86(C). Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION AND MADE A DECISION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN GRANTING CREDIT TO APPELLEE/OBLIGOR FOR OVERPAID CHILD SUPPORT WHERE APPELLEE DID NOT CONTEST THE CHILD SUPPORT PAYMENTS FOR SEVERAL YEARS. THE FINDING OF OVERPAYMENTS SHOULD BE BARRED BY THE DEFENSES OF LACHES AND ESTOPPEL[.]
Assignment of Error Number Three
THE TRIAL COURT ACTED ARBITRARILY AND CONTRARY TO LAW WHEN IT CORRECTED NUNC PRO TUNC THE AMOUNT OF CHILD SUPPORT PAYMENT, WITHOUT ATTACHING THE TRANSCRIPT, THE NUN [sic] PRO TUNC WAS MORE IN THE NATURE OF SUBSTANCE THAN A 60(A), CLERICAL MISTAKE TO THE PREJUDICE OF APPELLANT[.]
Assignment of Error Number Four
THE TRIAL COURT ERRED IN THE CALCULATION OF THE AMOUNT OF OVERPAYMENT AND IN GRANTING JUDGMENT FOR THE SAME TO APPELLEE, STEPHEN T. BURSIEL WHEN IN
FACT, APPELLANT IS ENTITLED TO THE IMPOUNDMENT FUNDS AND SUPPORT FOR THE TIME PERIOD JANUARY 2019 TO JUNE 2019[.]
{20} In Huron County case No. H-20-010, Michele assigns the following errors:
Assignment of Error Number One
THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS, BY FAILING TO PREPARE AND FILE A MAGSITRATE“S [sic] DECISION THAT COMPLIES WITH OGIO [sic] CIVIL RULE 53[.]
Assignment of Error Number Two
IN THE ALTERNATIVE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR[.]
II. Law and Analysis
A. Case No. H-19-015
{21} In case No. H-19-015, Michele challenges the trial court‘s decision (1) terminating Stephen‘s child support obligation even though B.B. was still enrolled full-time in high school; (2) concluding that Stephen had overpaid on his child support obligation where Stephen did not challenge the amount of child support; (3) correcting the child support obligation in a nunc рro tunc entry when the error was one of substance and not a clerical mistake; and (4) granting judgment to Stephen for the overpayment of child support without verifying the calculation of the overpayment.
1. R.C. 3119.91 and 3119.92
{23} At the time this case was pending in the lower court,
(A) With respect to a court child support order, in the court that issued the order or that otherwise has jurisdiction over the order;
(B) With respect to an administrative child support order, the juvenile court or other court with jurisdiction under
section 2101.022 or2301.03 of the Revised Code of the county in which the agency that issued the order is located.
{24} Instead of filing a motion in the divorce case (case No. DR-2000-0491) within 30 days of the administrative decision, Michele filed a notice of appeal in a new civil case (case No. CVF-2018-0703). This was problematic for two reasons: (1) Michele‘s failure to file a motion within 30 days in the court with jurisdiction over the order (i.e., in the divorce case) rendered the decision final under
{25} Michele does not address her failure to utilize the procedure set forth under
2. Nunc Pro Tunc
{26} As to Michele‘s third assignment of error,
{27} Here, the trial court‘s May 21, 2018 nunc pro tunc judgment merely corrects the judgment to reflect what happened at the December 5, 2000 hearing. At that hearing, the court ordered Stephen to pay “$338.98 plus administrative fees“—not “$338.98 including poundage.” (Emphasis added.) The nunc pro tunc judgment was properly used to corrеct this discrepancy.
B. Case No. H-20-010
{29} In her appeal docketed as case No. H-20-010, Michele argues that the trial court erred in denying her
1. Civ.R. 53 Notice
{30} Under
{31}
{32} Here, Michele claims in her first assignment of error that the magistrate‘s decision did not include the required
{33} While Michele correctly states that the magistrate‘s decision does not contain the required
2. Plain Error
{34} Under
{35} The Supreme Court of Ohio has instructed that when applying the doctrine of plain error in a civil сase, “the doctrine is sharply limited to the extremely rare case involving exceptional circumstances where the error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of the underlying judicial process itself * * *. The plain error doctrine should never be applied to reverse a civil judgment simply because a reviewing court disagrees with the result obtained in the trial court * * *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997). (Emphasis sic.).
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(5) any other reason justifying relief from the judgment.
{37} The Supreme Court of Ohio has held that to prevail on a motion for relief from judgment under
{38} Michele relies on
{39} In determining whether excusable neglect has occurred, the court must take into consideration the surrounding facts and circumstances. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). “If the movant fails to apprise the court of those surrounding facts and circumstances and the court subsequently overrules the motion, that judgment cannot be characterized as an abuse of discretion.” Id.
{41} Accordingly, we find Michele‘s two assignments of error in case No. H-20-010 not well-taken.
III. Conclusion
{42} As to Michele‘s first, second, and fourth assignments of error in case No. H-19-015, Michele failed to utilize the procedure for objecting to the administrative termination decision set forth under
{43} As to Michele‘s first assignment of error in case No. H-20-010, the magistrate‘s decision does not contain the required
{44} Michele is ordered to pay the costs of this appeal under
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, P.J. JUDGE
Myron C. Duhart, J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.