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In re D.D.J.

Court of Appeals of Ohio, Second District, Montgomery

June 9, 2017

IN RE: D.D.J.

         Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. 1993-2232

          STEPHANIE SLONE, Attorney for Appellee-Montgomery County Support Enforcement Agency

          THOMAS G. KOPACZ, Attorney for Appellant-Kenneth Jones

          OPINION

          WELBAUM, J.

         {¶ 1} In this case, Defendant-Appellant, Kenneth Jones, appeals from a trial court decision imposing a previously suspended jail sentence of 30 days for his failure to pay child support arrearages. In support of his appeal, Jones contends that the trial court abused its discretion by overruling his objections to the magistrate's decision only two days after the objections were filed, by denying his request to file a transcript, and by denying his request to supplement his objections. Jones also contends that the trial court committed plain error by failing to allow him sufficient time to file a transcript and to supplement his objections to the magistrate's decision.

         {¶ 2} Appellee, Montgomery County Support Enforcement Agency ("SEA"), failed to file a brief and did not respond to our show cause order, which was filed on December 29, 2016. As a result, in deciding the appeal, we "may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." App.R. 18(C).

         {¶ 3} After reviewing the record, we conclude that the trial court abused its discretion by overruling Jones' objections prior to the time within which the transcript could have been filed. We also find plain error in the trial court's decision. Even if Jones initially made only general objections to the magistrate's decision, the trial court's action prevented Jones from filing a transcript and from supplementing his objections. This affected the basic fairness of the proceedings.

         {¶ 4} Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.

         I. Facts and Course of Proceedings

         {¶ 5} This action began in March 1993, when L.B. (now L.J.) filed a paternity complaint in Montgomery County Juvenile Court, alleging that Jones was the father of her child, D.D.J., who had been born in February 1992. In September 1993, an agreed order was filed, in which Jones admitted that he was D.D.J.'s biological father. No child support was ordered at that time.

         {¶ 6} In January 1996, the trial court ordered Jones to pay $50 per month in child support. Subsequently, in April 2007, the trial court adopted an administrative review recommendation and ordered Jones to pay $221.97 per month in child support, effective April 1, 2007. A seek work order was also filed. In addition, the SEA filed a motion to show cause in April 2007, alleging that in the past 578 months, Jones had paid only $49.85 in child support and currently owed $6, 675.15.

         {¶ 7} On July 20, 2007, a magistrate's decision and judge's order was filed, finding Jones in contempt, and sentencing him to 30 days in jail. The jail time was suspended, on the condition that Jones make current and timely support payments upon release from jail. The order further stated that Jones could purge the contempt by timely payments and payment of $200, in addition to his normal support obligation, within six months of his release from jail. Subsequently, in September 2007, SEA withdrew its motion to show cause, because Jones was in prison. SEA stated that it would refile its motion upon Jones' release.

         {¶ 8} In June 2010, the trial court filed an order emancipating D.D.J., and terminating the support obligation as of June 8, 2010. The order noted that an arrearage existed, and ordered Jones to continue making payments of $221.87 on the arrearage, plus 2% poundage until the arrearage was paid.

         {¶ 9} SEA then filed a motion to impose sentence in January 2014. The motion alleged that over the lifetime of the child support order, Jones had paid only $882.44 and had an arrearage of $14, 827.77. Jones was arrested after he failed to appear for the initial hearing, and on August 7, 2014, he was ordered to begin immediately serving the previously suspended 30-day jail sentence. This order contained a provision indicating that Jones could be released from jail upon payment of $1, 400. A further order was filed on August 12, 2014, stating that Jones had served 30 days on his sentence and that zero days remained to be served.

         {¶ 10} In May 2015, SEA filed a second motion for contempt, alleging that Jones had paid only $907.44 in child support, with the last payment having been $25 on May 5, 2014. When the motion was filed, Jones allegedly owed $14, 873.81. A hearing was set, but Jones failed to appear for the hearing and a capias was issued for his arrest. No further order is in the record regarding this motion for contempt.

         {¶ 11} On March 9, 2016, SEA filed a motion seeking imposition of sentence. According to the motion, the trial court had entered an order on November 6, 2015, finding Jones in contempt for failing to pay support and imposing a 60-day jail sentence, which was suspended on condition that Jones immediately begin to make timely payments. Allegedly, Jones failed to comply with this order. The record filed with our court does not contain a November 6, 2015 ...


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