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Schmahl v. Powers

Court of Appeals of Ohio, Eighth District

July 25, 2013

SHARON SCHMAHL, PLAINTIFF-APPELLEE
v.
MICHAEL POWERS, DEFENDANT-APPELLANT

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-310384.

ATTORNEY FOR APPELLANT: John V. Heutsche John V. Heutsche Co., L.P.A.

ATTORNEYS FOR C.S.E.A., n.k.a., CJFS-OCSS Timothy J. McGinty Cuyahoga County Prosecutor By: Farah Emeka Assistant County Prosecutor CJFS-OCSS.

FOR APPELLEE Sharon Schmahl, pro se.

BEFORE: EA. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, J.

{¶ 1} Michael Powers appeals from the decision of the trial court dismissing his motion to show cause and for attorney fees. Powers argues the trial court erred when it dismissed his motions, when it sua sponte found a provision of the divorce decree unenforceable and when it failed to allow an opportunity to file objections pursuant to Civ.R. 53. Finding merit to the instant appeal, we reverse the decision of the trial court and remand the matter for proceedings consistent with this opinion.

{¶2} This matter began in 2006 as a divorce action between Sharon Schmahl and Michael Powers. It is now before this court on an appeal of the lower court's denial of Powers' motions to require the CSEA (Child Support Enforcement Agency) n.k.a. Cuyahoga County Job and Family Services to show cause why it should not be held in contempt and for attorney fees.

{¶ 3} In 2009, the court filed its entry of divorce, which was signed by both parties' legal counsel. The entry of divorce includes the following pertinent language:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there exists and the Defendant Michael P. Powers, has support arrearage in the amount of One Hundred Seventeen Thousand Dollars ($117, 000). CSEA shall correct its records to reflect this amount of arrearage ($117, 000), and that there exists no credit toward said arrearage in the amount of One Hundred Seventeen Thousand Dollars ($117, 000); and this amount of arrearage ($117, 000) includes and takes into account any and all credits which exist in CSEA's records, including but not limited to, the credit in the amount of approximately Fifty Two Thousand Dollars ($52, 000).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant, Michael P. Powers' support arrearage of One Hundred Seventeen Thousand Dollars ($117, 000) shall be paid as follows:
1. Plaintiff, Sharon R. Schmahl, shall receive Thirty One Thousand Dollars ($31, 000) from the Defendant, Michael D. Powers' one-half (1/2) share of the joint account held by Fifth Third Bank * * * total account balance of approximately Sixty-Two Thousand Dollars ($62, 000), as set forth below; * * *
2. On or before September 16, 2009, the Defendant, Michael P. Powers, shall pay directly to the Plaintiff, Sharon R. Schmahl, the amount of Fifteen Thousand Dollars ($15, 000); and,
3. The remaining balance of Seventy-One Thousand Dollars ($71, 000) shall be paid by the Defendant, Michael P. Powers, continuing to pay to the Plaintiff, Sharon R. Schmahl, the amount of One Thousand Five Hundred Dollars ($1, 500) per month, plus two percent (2)% processing fee, after the emancipation of a child, until the arrearage in the amount of Seventy-One Thousand Dollars ($71, 000) is paid in full. The Defendant, Michael P. Powers may at any time pay the entire balance then due and owing to the Plaintiff, Sharon R. Schmahl, directly to the Plaintiff, Sharon R. Schmahl.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that CSEA shall not collect on the amount of arrearage except as set forth herein and/or further Court Order. CSEA shall not engage in any administrative actions to suspend the Defendant, Michael P. Powers' professional and/or drivers' license(s) unless the Defendant, Micahel P. Powers fails to pay the support and arrearages as set forth herein.

{ΒΆ 4} A copy of the judgment entry was sent to CSEA who, almost immediately, took action to collect the arrearages. CSEA sent letters to Powers informing him of the arrearages; it sent a notice of default and added an additional twenty percent payment obligation towards the arrearages; it intercepted Powers' 2009 federal income tax return and lastly; CSEA ...


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