Background of Case
This is a case (“Caron IV”) оf indirect civil and criminal contempt of court. This opinion addresses the issue of contempt of court for child non-support in the consolidated domestic relations/parentage cases of Dennis T. Caron (the “father”).
This marathon litigation began in April 1992, when the father of a then one-year-old boy filed a divorce action after one year of marriage and began a crusade to capture custody of his son. Throughout the life of the case, which before these post-decree proceedings lasted seven years until April 1999, when the Ohio
Upon dismissal of the domestic relations action by the Ohio Supreme Court in April 1999, affirming denial of custody to the father, he immediately filed a parentage action by which he attempts to disestablish his paternity and avoid his child support obligation of the now nine-year-old boy, despite the fact he acknowledged his legal status as father of the child more than a dozen times in the record of the domestic relations case. An order to show cause regarding civil and criminal contempt for non-payment of child support is before the court in these intertwined domestic relations and parentage cases. The paramount issue before this court is whether the father should be held in contempt of court for his refusal to pay child support. This is not Caron’s first or even second rendezvous with the law of contempt. Caron v. Caron (Dec. 3, 1998), Franklin App. No. 98AP-369, unreported,
“Contempt of court is a mysterious and indefensible offense and as easy to commit as it is liable to speedy and deserved punishment.” See the somewhat aged but comprehensive treatise National Lawyer’s Manual: Contempt, by Edward M. Dangel (1939) (National Lawyer’s Manual Company) (“NLM Contempt”), at 14.
Because many of the rules of contempt law, including the various classifications and due process rights of contempt hearings, are relevant to this case, it may be helpful to review the elusive law of contempt that is both of ancient origin and fundamental contemporary importance. This opinion will examine thoroughly the fundamental issues relating to the law of contempt of court.
Contempt of court is an act or omission that interferes with the administration of justice. Garner, Dictionary of Modern Legal Usage (1995) (Oxford Univ. Press), at 211. Contempt of court is part of the lex terrae (“law of the land”) within the meaning of the Magna Carta. Rex v. Almon, infra. The phrase “contemptus curiae” (contempt of court) has been a part of the common law since the twelfth century. Borrie & Lowe, Law of Contempt (2 Ed.1983). In 1258, Bracton said: “There is no greater crime than Contempt and Disobedience, for all persons within the Realm ought to be obedient to the King and within his Peace.” Bracton’s Notebook (1887) (F.W. Maitland Pub. Co.) The essence of the offense of contempt of court is the defiance of judicial authority.
Contempt of court is an act or omission that interferes with the administration of justice, through conduct which disobeys judicial orders, shows disregard and disrespect for the authority and dignity of the law, or tends to embarrass, impede or obstruct the court in the performance of its functions. In re Green (1961),
What is the nature of the public interest that is served by the law of contempt of court? The individual’s right to a fair trial before a court of law is a fundamental right in a free society with a civilized system of justice. It is a basic tenet of an ordered society that to secure the right to a fair trial, it is essential to ensure public faith in the rule of law and the proper administration of justice. The law of contempt of court supports these truths by providing sanctions against misbehaviors that would undermine the guarantees of fair trial, result in disrespect for the rule of law, and cause lack of public confidence in the due administration of justice. “It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” Atty.-Gen. v. Leveller Magazine (1979), A.C. 440, 449, 1 All E.R. 745, 749, HL,
The term “contempt of court” has rightfully been criticized as misleading and inadequate to describe the gravity of the offense: “The phrase ‘contempt of court’ does not in the least describe the true nature of the class of offence with which we are here concerned * * *. The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. * * * It is not the dignity of the Court which is offended — a petty and misleading view of the issues involved — it is the fundamental supremacy of the law which is challenged.” Johnson v. Grant (Scotland 1923), S.C. 789, at 790, cited in Report of the Committee on Contempt of Court, presented to Parliament by the Lord High Chancellor and the Lord Advocate by Command of Her Majesty, December 1974, Her Majesty’s Stationery Office.
What are the criteria for the “due administration of justice” that is protected by the offense of contempt of court? A contemporary English decision offers these requirements: “The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these requirements or to undermine the public confidence that they will be observed is contempt of court.” Atty.-Gen. v. Times Newspapers, Ltd. (1973), A.C. 273, 309, 3 All E.R. 54, 72, HL,
Contempt proceedings are neithеr entirely civil nor entirely criminal, but instead are sui generis — special proceedings that may involve both civil and criminal characteristics. Gompers v. Buck’s Stove & Range Co. (1911),
The contempt proceeding may be considered a trial. First Bank of Marietta v. Mascrete (1997),
The determination of the court to uphold the due administration of justice is unmistakably illustrated in Respublica v. Oswald (1778), 1 Dallas (Pennsylvania Supreme Court) 319, 329,
Most contempt of court actions involve one or more of the following scenarios: (1) disobedience of court orders (most indirect contempts); (2) disruptions in open court (most direct contempts); (3) obstruction of court’s processes (blocking of service or execution of judgment); (4) refusal of witness to testify or produce evidence; (5) attempt to obstruct, influence, or intimidate judge, witnesses, or jurors; (6) fraud upon the court (witness or evidence tampering, perjury, forgery, alteration of records); (7) misconduct of court officers, jurors, or witnesses; (8) symbolic acts which invade the court’s respect and dignity; and (9) out-of-court statements and publications which attempt to influence judge or jurors. Dobbs, Contempt of Court: A Survey (1973) 56 Cornell L.Rev. 183; NLM Contempt, Chapter XI.
History of Contempt Law
It is justifiably noted: “Few legal concepts have bedeviled courts, judges, lawyers and legal commentators more than contempt of court.” Martineau, Contempt of Court: Eliminating the Confusion Between Civil and Criminal Contempt (1981), 50 U.Cin.L.Rev. 677, at 677. “The law [of contempt of court] is a mess.” Dudley, Getting Beyond the Civil/Criminal Distinction (1993), 79 Va.L.Rev. 1025, аt 1025. It need not be so.
Much of the confusion surrounding the law of contempt of court can be attributed to the reality that the concept of summary (ie., without due process safeguards) contempt has changed significantly over the 800 years of its recorded life, especially in the last several centuries, as a result of the struggle between conflicting points of view regarding the necessity of what today is considered to be the dual essential elements of summary contempt: (1) the judge’s personal knowledge of the contumacious act, and (2) the contumacious act’s imminent threat to the administration of justice. No similar problem exists regarding indirect contempt, which focuses on due process safeguards.
The initial turn of the key to unlock the mystery of the law of contempt is to realize that the historic concept of summary contempt included any contempt that disrupted the judicial process, regardless where it occurred (thus possibly lacking “judge’s personal knowledge” element), and regardless of the degree of interference with the system of justice (thus possibly lacking “imminent threat” element). The final turn of the key is to realize that this historic concept of unlimited summary contempt has been substantially constrained by statute and case law so that today both the “judge’s personal knowledge” and the “imminent threat” elements are required for summary contempt. The historic lock attempted to be opened in many cases was a “contempt by publication” case.
The history of contempt is inexorably intertwined with the history of the press, with many of the milestones of the law of contempt being laid in “contempt by publication” cases. See fn. 1. After Blackstone writes of the inherent power of contempt (“For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory.”), he makes a distinction between direct and indirect contempt regarding the imposition of summary sanctions: “If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination, but in matters that arise at a distance, and of which the court cannot have so perfect a knowledge * * * [the judges] either make a rule on the suspected party to show cause why an
The writings of Blackstone and the judgment in Almon’s Case were responsible for the initial reception of the summary contempt process into the United States in the late eighteenth century. See Bloom v. Illinois (1968),
The impeachment trial (1826-1831) of United States District Judge James Peck, however, had a remarkable and far-reaching effect on the law of contempt in the United States. Judge Peck survived impeachment by only a single vote of
At once, lower federal courts followed the restrictions imposed by the Act, although reluctantly in contempt-by-publication cases. United States v. Emerson (1831) 25 Fed.Cas. 1012, 1831 U.S.App. LEXIS 219, 4 Cranch. C.C. 188 (argument “in the hall of entrance, while the court was sitting, was either ‘in the presence of the court, or so near thereto as to obstruct the administration of justice,’ within the meaning of the act of congress of the 2nd of March, 1831, ‘declaratory of the law concerning contempts of court,’ ” and “the court therefore imposed a fine of five dollars upon each of the parties.”); United States v. Seeley (1844) (C.C.S.D.N.Y.), 27 Fed.Cas. 1010, 1844 U.S.App. LEXIS 438 (removal of federally liened brig from Brooklyn harbor not summary contempt); Ex parte Poulson (1835), 19 Fed.Cas. 1205, 1835 U.S.App. LEXIS 230, 15 Haz.Reg.Pa. 380. The court in Poulson, a contempt-by-publication case, first decried the Act of 1831: “The laws will have been enacted in vain, courts of justice will become useless, and suitors be deprived of the benefits of resorting to them for redress, if it shall be their common fate to be obliged to encounter the effect of publications of a description now before us on the merits of their cause. * * * The court is
Four decades after the enactment of the Act of 1831, the United States Supreme Court, in Ex Parte Robinson (1873),
About three-quarters of a century after the lower federal court in Poulson cautioned that it “would ill become any court of the United States to make a struggle to retain any summary power, the exercise of which is manifestly contrary to the declared will of the legislative power,” the United States Supreme Court handed down Toledo Newspaper Co. v. United States (1918),
A generation later, in Nye v. United States (1941),
Federal and state case law, heeding statute while yet to varying degrees maintaining the inherent nature of the power of contempt, has significantly narrowed the concept of direct contempt, but has also created several legal fictions that permit it to include acts committed outside the physical presence of the judge. These legal fictions embody contumacious acts (a) committed in any “constitute part of the court” (Ex parte Savin [1889],
Ohio and federal contempt law may differ as to definition and penalty standards, because while such standards are controlled by case law (despite statute) in Ohio, they are controlled by statute in the federal courts. Section 401, Title 18, U.S.Code provides: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice, (2) Misbehavior of any of its officers in their official transactions, and (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” The Federal Rules of Criminal Procedure provide fоr summary sanction only where “the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” Fed.Crim.R. 42(a). English contempt law also is controlled by statute. Contempt of Court Act 1981, Section 14(1).
Federal and Ohio law share constitutional due process requirements in matters of contempt, however, because due process safeguards must be honored, not because they may be incorporated into statutes, but rather because the United States Constitution and the Ohio Constitution mandate them.
Thus, America and England have traveled different paths in seeking to resolve the conflicting interests between a fair trial and a free press. See fn. 1. Although today’s summary contempt rules (i.e., “presence of court/imminent threat”) in the United States in large part have been developed in “contempt by publication” cases, they are applicable, of course, to all types of contempt cases, and have fatefully shaped the law of contempt in America.
Inherent Power of Contempt
Contempt proceedings constitute the inherent means by which courts enforce their lawful orders and affirm the rule of law. Cincinnati v. Council, supra, at 202,
The Supreme Court of the United States has held that the United States Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted,” holding that the English common law of contempt was adopted by the united States upon establishment of the United States Constitution. Ex parte Grossman (1925),
The source of the contempt authority of Ohio courts lies in the inherent power of the court — not the legislature or the Constitution. More than a century ago, the Supreme Court of Ohio in Hale v. State (1896),
“Historically and rationally the inherent power of courts to punish contempts * * * is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute.” Fisher v. Pace (1949),
Without the power of contempt, courts would be rendered powerless and unable to function. Over a century ago, the Supreme Court of the United States, in Ex parte Terry, infra, at 313,
A century ago, the Supreme Court of Missouri, in State v. Shepherd (1903),
The Supreme Court of Ohio has consistently affirmed the absolute necessity of the power of contempt to the operation of our courts. State v. Union, supra, at 80-81,
“The phrase ‘contempt in the face of the court’ has a quaint old-fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The courts of justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power — a power instantly to imprison a person without a trial — but it is a necessary power.” Morris v. Crown Office (1970), 2 Q.B. 114, 122, 1 All E.R. 1079, 1081, cited in Borrie & Lowe, The Law of Contempt, supra, at 6.
Although the contempt authority should be limited to the “least possible power adequate to the end proposed,” Hicks v. Feiock (1987),
“If courts are to be maintained and if they are to function properly in carrying out their constitutional and statutory duties, the defiance of court authority * * * cannot be tolerated. Courts must vigorously protect the dignity of their judgments, orders, and process. All those who would by misconduct obstruct the administration of justice must be on notice that they do so at their peril.” (Emphasis added.)
The instant case primarily involves inherent contempt powers, and only incidentally involves statutory contempt powers.
Direct and Indirect Contempt, and Summary Contempt
Contempt of court is classified as (a) direct contempt, and (b) indirect contempt. A direct contempt generally is a contumacious act primarily directed at the court rather than the opposing party, and usually is punished as criminal contempt. An indirect contempt generally is a contumacious act primarily directed at the opposing party rather than the court, and usually is punished as civil contempt. See Judge V. Michael Brigner, Contempt Issues in Ohio Domestic Relations Law 2000, Ohio Judicial College; NLM Contempt, Chapters IX and X.
The fundamental distinction between direct contempt and indirect contempt lies in the location of the act of contempt — whether it takes place within the presence of the judge, or elsewhere. “A direct contempt is one committed in the presence of or so near the court as to obstruct the due and orderly administration of justice.” In re Lands (1946),
A prevalent misconception exists yet today that direct contempt is synonymous with summary (ie., without due process) contempt; or to state it differently, that every direct contempt justifies a summary sanction; or to again state it differently, that where the contumacious act is committed “within the presence of the court,” it need not constitute an “imminent threat to the administration of justice” to justify a summary sanction. Assuming a contumacious act qualifies as a direct contempt, however, this is simply a precursor to one of the essential issues of present-day contempt law in America — whether the circumstances of the direct contempt include both essential elements of summary contempt: (a) the “judge’s personal knowledge” and (b) the “imminent threat to the administration
The dual essential elements of summary contempt, Ex parte Terry (1888),
1. A contumacious act committed in open court in the judge’s presence and immediate view that results in the judge’s personal knowledge and makes further evidence unnecessary for a summary finding of contempt (“judge’s personal knowledge” element), and
2. The contumacious act constitutes an imminent threat to the administration of justice that may result in demoralization of the court’s authority unless the court imposes a summary contempt sanction (“imminent threat” element).
The language of the Supreme Court of the United States, in In re Oliver, supra, at 274-276,
“There [in Cooke] it was pointed out that for a court to exercise the extraordinary but narrowly limited power to punish for contempt without an adequate notice and opportunity to be heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but that the judge must have 'personal knowledge of it acquired by his own observation of the contemptuous conduct. This Court said that knowledge acquired from the testimony of others, or even from the confession of the accused, would not justify conviction without a trial in which there was an opportunity for defense.” (Emphasis added.)
“Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case requires that the accused contemnor’s constitutional rights be honored.
“The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by thе court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public.” (Emphasis added.)
In this opinion, the term “summary contempt ” refers only to circumstances where both essential elements (the judge’s personal knowledge which justifies an
Another way to express the concept that summary contempt consists of dual essential elements is to recognize the rule that not every finding of direct contempt justifies a summary sanction. Odem & Baker, Direct and Constructive Contempt (1974), 26 Baylor L.Rev. 147. The court In re Davis (1991),
“It seems clear that under the rules of Cooke and Oliver a summary proceeding is not authorized simply because the conduct constitutes direct contempt. Even if the external facts are clear because they took place in the presence of the judge, the effect of the contumacious conduct must create a ‘need for speed’ to immediately suppress the court-disrupting misbehavior and restore order to the proceedings. * * * Absent that need, an evidentiary hearing is required even though the contempt is ‘direct.’ ”
As very well said by Judge Joseph A. Artl of the Cuyahoga County Court of Appeals in State v. Treon, supra, at paragraph one of the syllabus:
“To constitute direct contempt the alleged misbehavior must (1) require immediate punishment to preserve the court’s authority, (2) take place in the presence of the judge in open court or in or before any of its constituent parts, such as the courtroom or the jury, and (3) obstruct the administration of justice by delaying or injuring or influencing a pending case.”
The definition of summary contempt in Treon, however, should not be read to include an implied “pending case” requirement. There is no “pending case” requirement in the law of contempt of court.
Case law focuses on the “presence of the judge” component of the “judge’s personal knowledge” element, but the “imminent threat” element involves a more subjective determination and cannot judiciously be overlooked. To justify a finding of summary contempt and imposition of summary sanction today, the contumacious act must pose a threat that requires immediate sanction to preserve the dignity and authority of the court. As stated by the Ohio Supreme Court in Cincinnati v. Council, supra, at 213,
Many contempts mistakenly thought to be summary contempts are reversed upon appeal for lack of the “imminent threat” element. In re Oliver, supra, at 275, 277,
The harm to be prevented by summary finding and sanction is demoralization of the court’s authority. The judge’s personal knowledge constitutes justification for summary finding, and the imminent threat constitutes justification for summary sanction, because “unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public * * * is not instantly suppressed and punished, demoralization of the court’s authority will follow. * * *” Cooke, supra at 536,
Thus, the essential factors which identify summary contempt justifying both summary finding and summary sanction are (1) the judge’s personal knowledge of the contumacious act, and (2) the necessity for summary action because of the imminent threat to the administration of justice. Where only the judge’s personal knowledge exists, a summary finding may be justified, but a summary sanction is not. Where both elements co-exist, the judge’s personal knowledge justifies summary finding, and the imminent threat justifies summary sanction; no due process hearing is required. In cases of indirect contempt, either the lack of the judge’s personal knowledge or the absence of an imminent threat necessitates a trial with due process guarantees.
Where the contumacious act takes place outside the presence of the judge, it is indirect contempt. In re Lands, supra, at 595,
Thus, the perplexing question generally is not between direct and indirect contempt, but rather between direct and summary contempt.
The case at bar involves indirect rather than direct contempt or summary contempt, requiring a due process hearing for a finding of contempt and imposition of contempt sanctions.
Civil and Criminal Contempt
Contempt of court is classified as (a) civil contempt, and (b) criminal contempt. A civil contempt is one in which the court imposes an indefinite sanction until the contemnor purges himself by performing the act ordered by the court, with the sentence either immediately carried out or deferred pending compliance; its purpose is remedial, to coerce the contemnor to perform, for the benefit of the opposing party. A criminal contempt is one in which the court imposes a definite punitive sentence, for the purpose of punishing the contemnor for defying the court’s authority; its purpose is punitive, to uphold the authority of the court and vindicate the law. See Brigner, Contempt Issues, supra; NLM Contempt, Chapters VII and VIII.
The answer to the question “what does the court primarily seek to accomplish by imposing sentence?” will determine whether a contempt is civil or criminal. Shillitani v. United States (1966),
In England, characterization of civil contempt as quasi-criminal has led to the gradual assimilation of the two branches of contempt, marked by application of criminal standards and safeguards to civil contempt proceedings, and essentially the abolition of the distinction. Miller, Contempt of Court, supra, at 27-29, 42-44.
The Supreme Court of Ohio comprehensively contrasts the punitive unconditional sanction of criminal contempt with the remedial conditional sanction of civil contempt in Brown v. Executive, supra, at 253,
Contumacious intent is an essential element of criminal contempt. Midland Steel Prods. Co. v. U.A.W. Local 486 (1991),
Contumacious intent is not an essential element of civil contempt. Windham Bank v. Tomaszczyk, supra, at 58,
Despite the fact the primary purpose of criminal contempt is to vindicate the court’s authority, the unconditional element of criminal contempt is not so inflexible that the sanction may not provide for suspension conditioned upon future conduct, James v. James (Apr. 21, 1999), Wayne App. No. 98CA0016, unreported,
It is well settled that the same act may constitute both civil and criminal contempt, and a civil sanction of an indefinite commitment until the ordered act is performed may be combined with a criminal sanction of a definite fine and/or jail sentence for violation of the order. Hicks v. Feiock, supra, at 631,
Inability to pay child support or spousal support is an affirmative defense in a civil contempt action that must be raised and proven by the accused contemnor. United States v. Rylander (1983),
A criminal contempt action is to be distinguished from criminal charges for the same act prosecuted in criminal court. State v. Oppenheimer (1975),
It is not uncommon for a contemnor to face separate criminal charges for essentially the same behavior for which he had been convicted for criminal contempt, without state or federal prohibitions against double jeopardy acting as a bar to prosecution. The basis of this rule, the “Blockberger” or “same elements” test, has recently been affirmed by the Supreme Court of the United States in United States v. Dixon (1993),
Almost a century ago, it was aptly stated in In re Nevitt (C.A.8, 1902),
Contrary to defendant’s argument in United States v. Shipp (1906),
The case before the court involves both civil and criminal contempt.
Contempt Statutes
The Ohio legislature has supplemented the inherent contempt power of Ohio courts with Ohio Revised Code Chapter 2705 (Contempt of Court), enacted in
Although R.C. Chapter 2705 incorporates constitutional due process safeguards under which the indirect contempt power may be exercised, it cannot and does not limit the inherent contempt power of Ohio courts. Atty. Gen. v. Albin, supra, at paragraph two of the syllabus; Zakany v. Zakany, supra, at 194, 9 OBR at 507,
“[T]he [contempt] power inheres in courts independently of legislative authority. A power which the legislature does not give, it cannot take away.” (Emphasis added.)
As noted above, definition and penalty standards of federal contempt law are set by statute, Section 401, Title 18, U.S.Code; Fed.Crim.R. 42(a), although federal and Ohio share due process standards under the federal and state Constitutions.
R.C. 2705.01 (Summary Punishment for Contempt) codifies summary contempt as it existed at common law: “[A] court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” State v. Union, supra, at 79,
R.C. 2705.02 to 2705.10 address indirect contempt matters, including (some) acts of contempt, due process procedures, and (legislative recommended) penalties. As noted above, these statutes do not place any limitations upon courts’ inherent power regarding acts that constitute contempt or penalties for contempt.
R.C. 2705.06 echoes the conditional element of the court’s inherent authority regarding imprisonment for civil contempt: “When the contempt consists of the omission to do an act which the accused can yet perform, he may be imprisoned until he performs it.” Coercive imprisonment for civil contempt may last only so
R.C. 2705.031 addresses the procedure for a contempt action against a parent for failure to pay child support. The imposition of a jail sentence for failure to pay child support or spousal support does not constitute imprisonment for a “debt” contrary to, Section 15, Article I of the Constitution of Ohio. Cramer v. Petrie, supra, at 136,
“The juvenile court has the same jurisdiction in contempt as courts of common pleas.” R.C. 2151.21. Municipal courts have inherent and statutory authority to punish for contempts. R.C. 1901.13; State v. Johnson (1987),
The case at bar involves contempt statutes only to the extent that the court adheres to due process protections incorporated therein.
Contempt Sanctions
Although R.C. 2705.05 sets forth sanctions for indirect contempt, due to their inherent contempt authority, Ohio courts may impose sanctions “without regard” to statutory penalties. Olmsted Twp. v. Riolo, supra, at paragraph one of the syllabus. The Ohio Supreme Court remarkеd in Cincinnati v. Council, supra, at 207,
The Ohio Supreme Court set a general standard for contempt sanctions in Atty. Gen. v. Albin, supra, at paragraph one of the syllabus: “Upon the punishment of persons adjudged guilty of contempt, the courts have inherent power to impose a penalty reasonably commensurate with the gravity of the offense.” In United States v. United Mine Workers, supra, at 303-304, 67 S.Ct.
Contempt sanctions can be substantial, although subject to strict scrutiny upon review. Separate fines may be levied for each day a court order is violated. New Jersey v. New York (1938),
The court has discretion to award attorney fees in contempt proceedings. State ex rel. Fraternal Order of Police v. Dayton (1977),
The standard for an award of attorney fees was set by the Cuyahoga County Court of Appeals in Swanson v. Swanson (1976),
Sanctions for contempt are imposed in the discretion of the court within the proper exercise of its inherent power of contempt. The Supreme Court of the United States has declared that “great reliance must be placed upon the discretion of the trial judge.” United States v. United Mine Workers, supra, at 303. It has also been held that a judgment of contempt “should not be disturbed except'in case of a clear miscarriage of justice.” Conley v. United States (1932),
Regarding the discretion of the trial court, it should be noted that contrary to the usual rule on appeal, “[t]he general rule in cases of direct contempt is that the trial court’s judgment or order of direct contempt must itself contain a complete and clear statement of the facts upon which the conviction is based.” State v. Treon, supra, at 242,
In the case under consideration, the court has the authority and discretion to impose the legislatively recommended sanctions contained within the statutes, or impose sanctions without regard to the statutes.
Judicial Immunity and Disciplinary Proceedings Regarding Contempt
Over the many years of the instant domestic relations case, Caron filed a series of separate civil actions and grievances requesting that disciplinary charges be brought against the judges who were assigned the responsibility of ruling on the superflux of motions filed by him.
The doctrine of judicial immunity, honored in English and American law for almost four centuries, decrees that the “judicial acts” of a judge are not a proper subject of inquiry, and grants immunity from civil suits for all judicial acts. Floyd v. Barker (Star Chamber 1607), 77 Eng.Rep. 1306; Wilkes v. Dinsman (1848),
“The theory of judicial independence * * * is recognized in every civilized country.” Yardley, English Courts of Law (1979) (Oxford Univ. Press), at 126. Any infringement on the independence of the judiciary is an immediate threat to the fundamental concept of a free society and government under law. The Supreme Court of the United States in Bradley v. Fisher (1871),
Judicial immunity is absolute — suit will not lie even if the judicial acts are corrupt or made for purely malicious reasons. Bradley v. Fisher, supra, at
The same public purpose rationale underlying the doctrine of judicial immunity is specified as a cautionary mandate in the preamble to the Ohio Code of Judicial Conduct, charging that the Code “be construed so as not to impinge on the essential independence of Judges in making judicial decisions.” This is not to say that judges are absolutely immune from disciplinary proceedings as they are from civil suit, regarding their contempt decisions. See Annotation, “Abuse or Misuse of Contempt Power as Ground for Removal or Discipline of Judge,”
The power of contempt is the sole means by which judges can enforce their orders for the benefit of the public, and it may constitute a violation of their sworn duty to fail to exercise it where appropriate. The contempt power “is absolutely essential to the performance of the duties imposed on [courts] by law.” Gompers v. Buck’s Stove, supra, at 450,
Caron’s legal actions, affidavits of prejudice, and requests for disciplinary action against the judges in this case, after due consideration by the respective authorities, were summarily dismissed as frivolous.
Due Process Safeguards in Indirect Contempt Proceedings
Indirect contempt law has escaped the controversy and confusion that has engulfed direct contempt and summary contempt law for the past several centuries, because by definition indirect findings and sanctions are preceded by a legal proceeding in which facts and issues are determined, with the accused contemnor afforded a multitude of constitutional due process rights.
Due process of law, the “law of the land,” applies to the law of contempt of court. Many protections found in the Bill of Rights, including the guarantee of due process of law of the Fifth Amendment, can ultimately be traced back to the Magna Carta (King John’s Charter of 1215/1225): “These are the particulars of what the Barons petition, and our Lord the king grants: XXIX. No Free-man’s body shall be taken, nor imprisoned, nor disseised, nor outlawed, nor banished, nor in any ways be damaged, nor shall the king send him to prison by force, excepting by the judgment of his Peers and by the Law of the land.” Thompson, An Historical Essay on the Magna Charta of King John (1982) (The Legal Classics Library), at 55.
Mindful of the homily of the Supreme Court of the United States that “the provisions of the Constitution * * * are organic living institutions transplanted from English soil,” Gompers, supra, at 610, I turn now to the all-important due process substantive and procedural aspects of contempt of court. It constitutes due process of law for the court to make a summary finding of contempt and impose a summary sanction for contempt, where the judge has personal knowledge of the contumacious act, and the act constitutes an imminent threat to the administration of justice. Cooke v. United States, supra, at 534,
Where the judge lacks personal knowledge of the alleged act of contempt, or where there is an absence of an immediate threat to the administration of justice, however, any contempt is indirect contempt and the accused contemnor is entitled under the Fourteenth Amendment to the Bill of Rights of the Constitution of the United States and the Constitution of the state of Ohio, to a hearing that incorporates the guarantees of due process of law. Gompers v. Buck’s Stove & Range Co. (1911),
Because contempt proceedings affect personal liberty, the proceedings and due process safeguards governing them must be strictly construеd. White v. Gates (1884),
Where incarceration is a possible sanction for indirect contempt, criminal or civil, the accused contemnor generally has the rights of a criminal defendant. Hicks v. Feiock, supra, headnote one; In re Neff, supra, syllabus; Dayton Women’s Health Ctr., supra, at paragraph nine of the syllabus; In re Parker, supra, at 35,
Due process safeguards in indirect criminal contempt proceedings include (1) the right to notice of the charge, (2) the right to service of notice, (3) the right to bail, (4) the right to counsel, (5) the right to sufficient time to prepare defense, (6) the right to be present at trial, (7) the right to a public trial, (8) the right to a speedy trial, (9) the (qualified) right to a jury trial, (10) the right to an impartial judge, (11) the right to call and subpoena witnesses, (12) the right to cross examine adverse witnesses, (13) the right to the presumption of innocence, (14) the right to invoke the privilege against self-incrimination, (15) the right to the proper standard of proof, and (16) the right to appeal.
An accused contemnor has the due process right to notice of the contempt charge and its underlying factual basis. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall * * * be informed of the nature and cause of the accusation”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed * * * to demand the nature and cause of the accusation against him, and to have a coy thereof.”); Cooke, supra, at 537, 538,
As noted in NLM Contempt, supra, at 225: “In an indirect contempt proceeding, the party alleged to be guilty is entitled to have served upon him a rule, which must specify when and where the contempt was committed, with such reasonable certainty as to inform him of the nature and circumstances of the charge and it must set out the facts constituting the contempt.” In McGill v. McGill (1982),
Due Process: (2) Right to Service of Notice
An accused contemnor has the due process right to service of notice of the contempt charge. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall * * * be informed of the nature and cause of the accusation.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed to * * * demand the nature and cause of the accusation against him, and to have a copy thereof * * *.”); Cooke v. United States, supra, at 537, 538,
There is disagreement among the courts regarding the technical requirements of service of notice of contempt charges. McWhorter v. Curran (1935),
Service of notice can be waived. In re Harper (Oct. 17, 1989), Monroe App. No. 650, unreported,
Due Process: (3) Right to Bail
An accused contemnor has the due process right to bail. United States Constitution, Bill of Rights, Amendment VIII (“Excessive bail shall not be required”); Ohio Constitution, Bill of Rights, Section 9, Article I (“All persons shall be bailable * * * Excessive bail shall not be required.”); In re Berman (1949),
Due Process: (4) Right to Counsel
An accused contemnor in criminal and civil contempt cases has the due process right to counsel, including court-appointed counsel if indigent and incarceration is a possible sanction. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel.”); In re Oliver, supra, at 273,
An accused contemnor in a civil contempt case has the right to counsel where incarceration is a possible sanction. Lassiter v. Dept. of Social Serv. (1981),
Due Process: (5) Right to Time to Prepare Defense
An accused contemnor has the due process right to reasonable time to prepare his defense, in light of the circumstances of the case. In re Oliver, supra, at 273,
As stated in NLM Contempt, supra, at 223, 225-226: “[N]otice must be given a reasonable time before the hearing * * * If the contemnor believes that notice to him of the hearing to show cause why he should not be punished for cоntempt is unreasonably short he should object and ask for more time at or before the date of the hearing. If he does not do this and is present in court and offers testimony he cannot complain that the time was too short.” See
Due Process: (6) Right to be Present at Trial
An accused contemnor has the due process right to be present at trial, and may not be tried in absentia unless he has waived his right to be present. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him”); Ohio Constitution, Bill of Rights, Section 10, Article I
The right to be present at trial can be waived. Blackmer v. United States, supra (waiver); In re Terry, supra (waiver where contemnor’s absence voluntary); Adams v. Epperly (1985),
The right to be present at trial gives rise to several practices considered to be desirable and which may rise to the level of due process rights: (a) prior warning, and (b) right of allocution, the formal inquiry by the court to a convicted defendant before pronouncing sentence as to whether he has anything to say why sentence should not be imposed upon him. 3A Corpus Juris Secundum (1973), at 252. The desirability of prior warning before a finding of direct contempt has been impliedly approved, but not mandated, by the United States Court in Illinois v. Allen (1970),
The custom or right of allocution of the accused to address the court after a finding of guilt and before the imposition of sanction may apply in direct contempt. Groppi v. Leslie (1972),
Due Process: (7) Right to Public Trial
An accused eontemnor has the due process right to a public trial. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right to a * * * public trial”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed * * * to have * * * a speedy public trial”); Argersinger v. Hamlin, supra, at 27-28,
In In re Oliver, supra, at 273, 266, 278,
Due Process: (8) Right to Speedy Trial
An accused eontemnor has the constitutional right to a speedy trial. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in 'any court, the party accused shall be allowed * * * to have * * * a speedy public trial.”); Klopfer v. North Carolina (1967),
An accused contemnor does not hаve the statutory right to a speedy trial. State v. Khong (Cuyahoga App.1985),
Due Process: (9) Right to Jury Trial
An accused contemnor has the qualified right to a jury trial in a criminal contempt case. United States Constitution, Section 2, Article III (“The trial of all crimes * * * shall be by jury”); United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right to * * * an impartial jury.”); United States Constitution, Bill of Rights, Amendment VII (“In suits at common law * * * the right of trial by jury shall be preserved.”); Ohio Constitution, Bill of Rights, Section 5, Article I (“The right of trial by jury shall be inviolate.”); Cheff v. Schnackenberg (1966),
Ohio Crim.R. 2(C) provides: “ ‘Serious offense’ means any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months.’ ” Ohio Crim.R. 2(D) provides: “ ‘Petty offense’ means a misdemeanor other than serious offense.”
There is no statutory right to a jury trial in a contempt case in Ohio. Although R.C. 2945.17 provides the right to a jury trial for every “offense” where the possible penalty exceeds $100, contempt is not an “offense” under R.C. 2901.02(A). See Ohio Crim.R. 23 (“Trial by Jury or by the Court”).
Due Process: (10) Right to Impartial Judge
The right of an accused to be tried by a fair and impartial judge is a basic right of due process. Tumey v. Ohio (1927),
Numerous cases involve judicial impartiality. “The delicacy there is in the judge’s deciding whether an attack upon his own judicial action is mere criticism [of the judge] or real obstruction [of the administration of justice], and the possibility that impulse may incline his view to personal vindication, are manifest.” Craig v. Hecht (1923),
Although a litigant has the due process right for good cause to petition for disqualification of the judge presiding in his case, there are limitations upon the right. If the affidavit of prejudice or request for disciplinary action is not made in good faith, fails to specify material facts supporting the alleged grounds of disqualification, or is made untimely, its filing may constitute the offense of contempt, and also a violation of criminal statute prohibiting attempts to intimidate or influence a public official. Cooke v. United States, supra, at 534,
Due Process: (11) Right to Subpoena and Call Witnesses
An accused contemnor has the due process right to subpoena and call witnesses on his behalf. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed * * * to have compulsory process to procure the attendance of witnesses in his behalf.”); Cooke v. United States, supra, at 537,
Due Process: (12) Right to Cross Examine Adverse Witnesses
An accused contemnor has the due process right to cross-examine adverse witnesses. United States Constitution, Bill of Rights, Amendment VI (“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“In any trial, in any court, the party accused shall be allowed to * * * meet the witnesses face to face.”); In re Oliver, supra, at 273,
Due Process: (13) Right to Presumption of Innocence
An accused contemnor has the due process right to the presumption of innocence. Gompers v. Buck’s Stove, supra, at 444,
An accused contemnor has the due process right to invoke the privilege against self-incrimination. United States Constitution, Bill of Rights, Amendment V (“No person shall * * * be compelled in any criminal case to be a witness against himself.”); Ohio Constitution, Bill of Rights, Section 10, Article I (“No person shall be compelled, in any criminal case, to be a witness against himself.”); Gompers v. Buck’s Stove, supra, at 444,
In cases of civil contempt, however, the accused contemnor may be called as a witness. Symons v. Rice (1917),
Due Process: (15) Right to Proper Burden of Proof
An accused contemnor has the due process right to the proper burden of proof, which is beyond a reasonable doubt in criminal contempt cases. Gompers v. Buck’s Stove, supra, at 444,
Almost all courts require clear and convincing evidence in civil contempt cases. Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts (1993), 79 Va.L.Rev. 1025, 1032, fn. 23; Brown v. Executive, supra, at 254,
English law applies the beyond a reasonable doubt standard to civil contempt proceedings. Re Bramblevale Ltd. (1970), Ch. 128, 3 All E.R. 1062; Dean v. Dean (1987), 1 FLR 517, cited in Miller, Contempt of Court, supra, at 28.
Due Process: (16) Right to Appeal
The right to appellate review is one of the most important, if not the most important, due process rights of a contemnor. The right to appeal did not exist at common law, with Blackstone stating: “The sole adjudication of con-tempts, and the punishment therefore * * * belongs exclusively, and without interfering, to each respeсtive Court.” Ex parte Kearney (1822), 20 U.S. (7
A criminal contempt conviction is a separate final judgment from which an immediate appeal may be taken regardless of the status of the underlying case. In re Christensen Eng. Co. (1904),
The Supreme Court of Ohio has held that the sole standard of review in a civil appeal is abuse of discretion, which does not include a weight-of-the-evidence standard. State v. Birkel (1981),
To constitute a final appealable order, there must be both a finding of contempt and imposition of a sanction. Chain Bike Corp. v. Spoke ’N Wheel (1979),
In a decision which impacts upon the right of appeal, the Ohio Supreme Court has held that a contemnor does not have the right to findings of fact and conclusions of law in an indirect contempt case. State v. Birkel (1981),
As to whether a contemnor by fully performing the sanction makes an appeal moot, the modern trend is away from strict rules precluding appellate review of criminal cases.
Regarding all of the abovе-discussed constitutional due process guarantees, it is said in State v. Kilbane, supra, at 205,
As noted, an order to show cause regarding indirect civil and criminal contempt for non-payment of child support is before the court in these intertwined domestic relations and parentage cases of Caron.
On the day of the contempt hearing, the father and mother proposed a “settlement resolution” to the court, which they claim would end their eight-year-old custody and child support litigation. On the day before the contempt hearing, about three weeks after service of the show-cause order on the father, he fortuitously paid his delinquent child support in the sum of $19,725 to the local child support agency. The parties’ proposal, as initiated by the father and agreed to by the mother, provides for distribution of about twenty-five percent of this sum to the mother for the benefit of the child, with the balance of seventy-five percent returned to the father. The proposal further waives court-ordered payment by the father of over $2,300 in health-care expenses incurred by the mother on behalf of the child, and also extinguishes this court’s four-year-old order designed to protect $12,000 of the child’s assets in the possession of the father. In return for the mother’s agreement to waive these benefits on behalf of the child, the father agrees to terminate his multitude of lawsuits in both state and federal courts that he initiated over the life of this case against numerous persons, some only remotely involved in the tragic affairs of this family.
The essential issue before the court is whether the best interests of the child are served by allowing his father who is five-and-one-half years delinquent in payment of his child support obligation to litigate the mother into submission so that she waives a major portion of the entitlements which the court has ordered the father to pay for the benefit of the child. The court finds that it is not. The settlement proposal is rejected. As declared in Crago v. Kinzie (2000),
The best interests of the child demand that the father pay to the mother, for the benefit of the child, all monies and expenses previously ordered by this
Children comprise the largest abused and neglected segment of American society
The court finds that Caron was accorded all due process guarantees provided by law for indirect contempt proceedings, both civil and criminal. He received notice of civil and criminal contempt charges specifying the underlying factual basis, child non-support, more than a month before the contempt hearing. Because he was not incarcerated, the right to bаil was inapplicable. Caron retained counsel for the contempt charge, and enjoyed a month to prepare his defense. He did not request a jury trial and was present with counsel of his choice at the contempt trial. Caron was presumed to be innocent and was judged by a fair and impartial judge. He exercised his rights to call witnesses on his
Caron did not complain to this court or any appellate court about any alleged denial of his due process rights on the contempt charge. His only actions, before the contempt trial, were to file (a) an affidavit of prejudice requesting disqualification of the judge authoring this opinion, (b) a grievance requesting disciplinary action against the judge, and (c) a thirty-five-page, one-hundred-ninety-three paragraph federal civil rights complaint against the judge. After due consideration over several days by the respective authorities, Caron’s filings were summarily dismissed as constituting frivolous filings.
The evidence demonstrates beyond reasonable doubt that for almost h-k years, until the day before the contempt hearing, the father failed to pay voluntarily any child support for his son, despite the fact the father earns his living as a professional engineer. The evidence shows that he has continuously ignored the orders of this court despite having been brought before it numerous times on contempt motions, and despite being found in contempt in February 1998, and ignoring the opportunity to purge himself of contempt for over two years. The father’s claim of disestablishment of paternity will be ruled upon in accordance with law in a fair and objective manner, but until that issue is finally decided by the courts, he is fully expected to abide by all court orders, including those with which he disagrees, such as paying child support. Gompers v. Buck’s Stove, supra, at 450,
The court finds the father to be in civil contempt of court as of the day before the contempt hearing, sentences him to thirty days in jail, and finds that he has purged himself by making his lump-sum delinquent payment on the day before the contempt hearing. The court deems the contemnor’s belated payment of his аrrearages to be a masquerade because he contemplated the recapture of most of it under his settlement proposal. Even if it were not a contrived payment, however, it does not divest this court of its contempt power, and contempt sanctions of imprisonment and fine may be imposed to uphold the dignity of the court even though all child support arrearages have been paid
The court further finds the father to be in criminal contempt of court immediately before his forced payment of child support, and sentences him to thirty days in jail with his sentence to begin immediately. “All those who would by misconduct obstruct the administration of justice must be on notice that they do so at their peril.” (Emphasis added.) State v. Union, supra, at 90,
The court further orders contemnor Caron to forthwith reimburse the mother the attorney fees she expended in this contempt proceeding.
This opinion is rendered in the best interests of the child and the people of Ohio, with due process afforded the father. No party to litigation should be penalized for exercising his rights to the fullest extent of the legal remedies available, but it is manifest that unless courts enforce their child support orders, the children of Ohio will suffer immeasurably, the public will justifiably lose all respect for and confidence in the law, and lawlessness mil prevail in our society. This the courts of Ohio will not permit.
So ordered.
Judgment accordingly.
Notes
. The potentially misleading "pending case” language at the end of the definition of contempt in Treon is based upon a misreading of an earlier decision in the same court, and the resulting misstatement that that decision holds that “a direct contempt is not possible where there was no pending case at the time of the alleged wrongdoing.” (Emphasis added.) State v. Treon, supra, at 241,
This is not true in England today, however, because the mother country has taken a different path in seeking to resolve the conflicting interests between a fair trial and a free press. Although England has a constitutional history dating back at least to 1080, recorded in literally hundreds of constitutional documents, Adams & Stephens, Select Documents of English Constitutional History (1901) (MacMillan), it has no constitution as such and no First Amendment. England has exercised strong authority that the paramount public interest lies in protecting the due administration of justice and it is only at the conclusion of a trial that the balance shifts to allow full and free debate, whereas in the United States the public interest in freedom of expression has been accorded a clear preference over the public interest in securing fair trials. Miller, Contempt of Court, supra, at 13. Last century's "contempt by publication/freedom of speech” American cases transformed the "tendency to prevent a fair trial” standard into an almost insurmountable elevated "clear and present danger to the administration of justice" standard. It was during this period when the "pending case" issue was relevant in America, as it is yet today in England. Any "pending case" language in the United States law of contempt is limited to these "contempt by publication” cases, which are fait accompli. See Myers v. State (1889),
In contrast, the foundation for the modem law of contempt in England was laid in the eighteenth century, the same period that saw the beginnings of the rise of the press. The first case in which the publisher of a prejudicial article was held guilty of contempt occurred in 1720 (Pool v. Sacheveral [1720], 1 P. Wms. 675), and was followed by the well-known cases of St. James’ Evening Post, 2 Atk. 469, in 1742, and Rex v. Almon, Wilm. 243; 97 E.R. 94, in 1765, cited in Report of the Committee on Contempt of Court Presented to Parliament by the Lord High Chancellor and the Lord Advocate by Command of Her Majesty, supra, at 4. Contrast with American case law, the concept of "trial by newspaper” or "trial by television” in English law which is particularly sensitive about such “trials” because they “deprive the Court of the power of doing that which is the end for which it exists — namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned.” Per Wills, J., in Rex v. Parke (1903), 2 K.B. 432, 437, cited in Borrie & Lowe, The Law of Contempt, supra, at 36. See
. Numerous summary contempt cases, primarily involving legal counsel, have been reversed for failure of the trial court to set forth the facts that constitute the accused contempt "fully, clearly, and specifically” in its judgment or order. Treon, supra; White v. Kiraly (Cuyahoga App.1975),
. See fn. 2.
. Almost twice as many children (20.5%) live in poverty in the United States today as do adults (11.3%), and among young families (headed by a parent under age 30) the child poverty rate between 1973 and 1994 more than doubled from 20 percent to 41 percent. That is a terrible record for the children of America, the wealthiest country in the world. The State of America’s Children: A Report from the Children’s Defense Fund (1998) (Beacon Press), at 3, 13. By 1998, 13.5 million American children — nearly one out of every five — lived in poverty. Among elderly Americans, by contrast, the poverty rate (10.5 percent) has never been lower. While there has been progress in collecting child support from absent parents (increasing from 18.3 percent in 1994), there were 19.6 million governmental child support cases in 1998, and only 23.1 percent had accomplished collection. The State of America’s Children: A Report from the Children’s Defense Fund (2000), (Beacon Press), at 4-5, 12. Ohio is a leader in child support collections, ranking 9th among the 50 states, despite recent child support distribution problems. United States Department of Health and Human Services, Office of Child Support Enforcement, 22nd Annual Report to Congress.
. No appeal was taken from this court order. Three weeks after rendering this decision, the court dismissed the father’s parentage action upon the basis of res judicata in the companion domestic relations case.