Roush v. BrownRoush v. Brown
David M. Kirschsieper, Government Services Center, 315 High Street, 7th Floor, Hamilton, Ohio 45011, for plaintiff-appellant, Butler County Child Support Enforcement
Helen M. Kendrick, 8050 Beckett Center Drive, Suite 202, West Chester, Ohio 45069, for defendant-appellee
O P I N I O N
RINGLAND, J.
{¶1} Richard Brown and Jamie Roush were divorced in October 2003. Under the terms of their divorce decree, Brown was required to pay Roush, through BCCSEA, $822.45 per month in child support for their two children. Beginning in July 2007, Brown began falling
{¶2} On March 11, 2008, BCCSEA filed a pleading in the Butler County Domestic Relations Court that contained several motions, including: (1) a “Motion to Show Cause,” requesting that Brown be ordered to show cause as to why he should not be held in contempt for his failure to pay child support as previously ordered; (2) a “Motion to Add Party,” requesting pursuant to
{¶3} The matter was referred to a magistrate who held a hearing on BCCSEA‘s motions on June 17 and July 15 of 2008. On August 15, 2008, the magistrate issued a decision, finding Brown in contempt for his failure to pay child support and sentencing him to 30 days in jail, with the sentence stayed on the condition that he pay his child support obligation as previously ordered. The magistrate denied BCCSEA‘s motion for attorney fees on the ground that BCCSEA “was acting in its administrative capacity in bringing this action and its counsel did not act as an attorney for any party.” The magistrate also stated that BCCSEA‘s motion to add itself as a party to the contempt action “[is] withdrawn.”
{¶4} BCCSEA filed an objection to the magistrate‘s decision, arguing that the magistrate erred in denying its motion for attorney fees. On October 15, 2008, the trial court issued a decision denying BCCSEA‘s objection and affirming the magistrate‘s decision.
{¶5} BCCSEA now appeals from the trial court‘s decision and assigns the following as error:
{¶6} Assignment of Error No. 1:
{¶7} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING BCCSEA
{¶8} BCCSEA argues the trial court erred in finding that the agency was not a party to the child support contempt action, because a child support enforcement agency is a proper party to all judicial enforcement actions it initiates with respect to the collection of child support. We agree.
{¶9}
{¶10} “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 job and family services or the child support enforcement agency.”
{¶11} As used in
{¶12} No one disputes that the instant case is a Title IV-D case for purposes of
{¶13} In Collins v. Collins (1998), 127 Ohio App.3d 281, 284, an obligor parent who had been found in contempt for failure to pay child support argued that the child support
{¶14} In light of Collins, we conclude that BCCSEA had the authority to bring a contempt action against Brown pursuant to
{¶15} In light of the foregoing, BCCSEA‘s first assignment of error is sustained.
{¶16} Assignment of Error No. 2:
{¶17} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED BCCSEA‘S MOTION FOR ATTORNEY FEES AND COSTS AND FAILED TO AWARD BCCSEA, AS A PREVAILING PARTY IN A CHILD SUPPORT CONTEMPT PROCEEDING, REASONABLE ATTORNEY FEES AND COSTS PURSUANT TO
{¶18} BCCSEA argues that since it was a proper party to this action, the trial court erred in failing to award the agency $500 in attorney fees and costs pursuant to
{¶19} The trial court affirmed the magistrate‘s decision not to award attorney fees to BCCSEA as the prevailing party in the contempt action, finding that BCCSEA‘s motion to be added as a party was withdrawn, and the agency was acting in its “administrative capacity” and its counsel was not acting as an attorney for any party in the case. In support of its decision, the magistrate cited Opinion No. 90-10 (June 15, 1990) of the Ohio Supreme
{¶20} “The client of a Child Support Enforcement Agency (CSEA) is the state. The state, on behalf of the public, has a direct pecuniary interest in the CSEA work. This is true when the custodial parent receives Aid to Families With Dependent Children and when the parent does not receive AFDC. The custodial parent must be aware at the outset that the CSEA attorney only represents the interests of the state.”
{¶21} For the reasons stated in our response to the first assignment of error, when BCCSEA initiated a contempt action against Brown for his failure to pay child support, the agency became a party to the contempt proceedings. BCCSEA‘s client in this case was not the obligee parent, i.e., Jamie Roush, but rather the state of Ohio, which, on behalf of the public, has “a direct pecuniary interest” in BCCSEA‘s work. Id.
{¶22}
{¶23} “If any person required to pay child support under an order made under division (A) of this section on or after April 15, 1985, or modified on or after December 1, 1986, is found in contempt of court for failure to make support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and require the person to pay any reasonable attorney‘s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt and, on or after July 1, 1992, shall assess interest on any unpaid amount of child support pursuant to section 3123.17 of the Revised Code.” (Emphasis added.)
{¶24} Because the trial court found that Brown was in contempt of court for failure to make child support payments as previously ordered, the trial court was required under
{¶25}
{¶26} Here, BCCSEA and Brown were adverse parties since their interests were clearly in opposition. Specifically, the agency‘s interest was in seeing that Brown pay his past due child support, and Brown‘s interest was in not having to pay it. Therefore, BCCSEA was an “adverse party” in relation to Brown in the contempt action for purposes of
{¶27} BCCSEA also argues that its request for $500 in attorney fees and costs was “de facto” reasonable pursuant to Loc.R. 31(C)(5) of the Butler County Domestic Relations Court, which states in pertinent part:
{¶28} “Upon a finding of contempt the Court may award attorney fees up to $500.00 and Court costs. If a higher award is sought, the attorney must request fees as part of the motion and comply with [Local] Rule DR 30(E)(3).”
{¶29} BCCSEA acknowledges that Loc.R. 31(C)(5) states that the court “may award attorney fees,” but contends that since
{¶30}
{¶31}
{¶32} Accordingly, BCCSEA‘s second assignment of error is sustained to the extent indicated.
{¶33} The trial court‘s judgment is reversed, and this cause is remanded for further proceedings in accordance with this opinion and the law of this state.
BRESSLER, P.J., and HENDRICKSON, J., concur.