James v. Vaile , 2011 Ohio 5240 ( 2011 )

[Cite as James v. Vaile, 2011-Ohio-5240.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CRAIG A. JAMES : JUDGES:
: Hon. William B. Hoffman. P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
QWENSANTA LIBERTY VAILE, : Case No. 11CAF030027
FKA KRISTIN Q. LIBERTY JAMES :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 01DRA07259
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 10, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CELESTE MANNS BRAMMER GEORGE Q. VAILE
P.O. Box 2451 776 Worthington New Haven Road
Westerville, OH 43081 Marengo, OH 43334
CRAIG JAMES
6768 North Sectionline Road
Radnor, OH 43066
Delaware County, Case No. 11CAF030027 2
Farmer, J.
{¶1} This case arose from a divorce proceeding between Craig James and
appellant, Qwensanta Vaile. On August 19, 2009, Mr. James filed a motion to reappoint
appellee, Celeste Brammer, as guardian ad litem for the children. By entry filed August
25, 2009, the trial court granted the motion and appointed appellee as guardian ad
litem.
{¶2} A hearing before a magistrate was held on March 5, 2010. The parties
entered into a memorandum of agreement which was filed on March 8, 2010, to be
memorialized as an agreed judgment entry at a later date.
{¶3} Appellee submitted her guardian ad litem fees to be included in the agreed
judgment entry. On April 22, 2010, the agreed judgment entry was filed which included
the guardian ad litem fees to be paid by Mr. James in the amount of $1,393.75 and
appellant in the amount of $1,768.75.
{¶4} On October 6, 2010, appellee filed a motion for a show cause order
against appellant for her failure to pay her share of the guardian ad litem fees. A
hearing before a magistrate was held on January 5, 2011. By decision filed January 10,
2011, the magistrate ordered appellant to pay appellee $50.00 per month until the debt
was paid. Appellant filed objections. By judgment entry filed February 28, 2011, the
trial court overruled the objections and approved and adopted the magistrate's decision.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
Delaware County, Case No. 11CAF030027 3
I
{¶6} "THE COURT BELOW ERRED IN PERMITTING THE NON-PARTY
GUARDIAN AD LITEM TO FILE A MOTION FOR A SHOW CAUSE ORDER AGAINST
THE DEFENDANT-APPELLANT FOR THE PURPOSES OF COLLECTING HER
ATTORNEY FEES AS THE GUARDIAN AD LITEM DOES NOT HAVE STANDING IN
THIS MATTER."
II
{¶7} "THE COURT ERRED IN PERMITTING THE ACTION TO GO FORWARD
BASED ON A MOTION FOR A SHOW CAUSE ORDER THAT SOUGHT A CITATION
OF CONTEMPT AND A 'SENTENCE ON INCARCERATION' BECAUSE THIS IS A
CIVIL ACTION AS THAT TERM IS DEFINED IN ARTICLE I SECTION 15 OF THE
CONSTITUTION OF THE STATE OF OHIO AND IT IS NOT PROPER TO HOLD THE
THREAT OF JAIL OVER THE HEAD OF THE DEFENDANT-APPELLANT IN AN
ATTEMPT TO COLLECT A CIVIL DEBT ABSENT A CLAIM AND SHOWING OF
FRAUD."
III
{¶8} "THE COURT BELOW ERRED IN CITING OHIO REVISED CODE
SECTIONS AS A REASON FOR FAILING TO APPLY ARTICLE I, SECTION 15 OF
THE CONSTITUTION OF THE STATE OF OHIO TO THIS CASE."
IV
{¶9} "THE COURT ERRED IN FAILING TO FIND THAT THERE WAS A LACK
OF DUE PROCESS AS GUARANTEED BY THE CONSTITUTION OF THE STATE OF
OHIO AND THE UNITED STATES CONSTITUTION IN THE HEARING BEFORE THE
Delaware County, Case No. 11CAF030027 4
MAGISTRATE WHEN THE DEFENDANT-APPELLANT WAS NOT PERMITTED TO
EVEN OFFER ANY EVIDENCE BEFORE THE MAGISTRATE RENDERED HER
DECISION."
I, II
{¶10} These assignments challenge appellee's right, as a non-party, to
prosecute a contempt action against appellant pursuant to an agreed judgment entry
ordering appellant to pay guardian ad litem fees.
{¶11} Pursuant to the agreed judgment entry filed April 22, 2010, appellant
agreed to the following: "The Guardian ad Litem, Celeste Brammer, shall be paid the
balance of her bill by April 20, 2010. The Plaintiff, Craig A. James owes the GAL, the
sum of $1,393.75 and the Defendant, Qwensanta Vaile owes the GAL the sum of
$1,768.75." There was never a challenge to this agreed entry; therefore, it has full force
and effect against appellant.
{¶12} Appellant argues appellee was not a party to the divorce and its
supplemental orders. However, on August 25, 2009, the trial court appointed appellee
as the guardian ad litem, stating the following: "The Guardian ad Litem fees are in the
nature of child support for the purposes of dischargeability in bankruptcy."
{¶13} Pursuant to R.C. 2705.031(B)(1), "any party" may pursue a contempt
action for failure to pay support: "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." Further, in In Re: Contempt of Thomas, Cuyahoga App. Nos.
86375 and 86939, 2006-Ohio-3324, our brethren from the Eighth District sanctioned a
Delaware County, Case No. 11CAF030027 5
guardian ad litem's contempt action for fees which were ordered to be paid as child
support.
{¶14} We conclude in the enforcement of an unchallenged agreed order wherein
guardian ad litem fees are ordered to be paid in the nature of child support, the guardian
ad litem has standing to prosecute the failure to obey the order. One might ask, "Who
else would bring the action but the guardian ad litem?" By analogy, trial courts permit
child support enforcement agencies to pursue non-support orders via contempt
proceedings. We find appellee had standing to bring the action sub judice.
{¶15} Appellant also argues guardian ad litem fees are in the nature of a "civil
debt" which is barred from contempt proceedings. As we will address in Assignments of
Error III and IV, no contempt was actually found by the magistrate or the trial court. The
April 22, 2011 original order was by agreement and unchallenged by appellant. The
subsequent magistrate's decision and trial court order merely enforced the provisions in
the agreed entry and provided for installment payments.
{¶16} Assignments of Error I and II are denied.
III, IV
{¶17} Appellant claims she was denied due process of law and not permitted to
present evidence. We disagree.
{¶18} In our review of these assignments, it is necessary to examine the
magistrate's decision. Although the matter was brought before the trial court on a show
cause motion for failure to pay the court ordered guardian ad litem fees, neither the
magistrate nor the trial court found appellant in contempt:
Delaware County, Case No. 11CAF030027 6
{¶19} "An Agreed Judgment Entry was signed by the parties, Celeste Brammer
as Guardian Ad Litem, Magistrate Laughlin and Judge Kruger on April 22, 2010. In that
Agreed Judgment Entry it stated that Defendant Qwensanta Vaile owes Guardian Ad
Litem Celeste Brammer $1,768.75. Defendant Qwensanta Vaile had until April 20,
2010 to pay the agreed to fees. To date she has not paid those fees.
{¶20} "Therefore, Defendant Qwensanta Vaile shall pay $50.00 per month to
Celeste Manns Brammer until the remaining guardian ad litem fees of $1,768.75 are
paid to Celeste Manns Brammer." Magistrate's Decision filed January 10, 2011.
{¶21} In its judgment entry filed February 28, 2011, the trial court overruled
appellant's objections and approved and adopted the magistrate's decision. There was
no finding of contempt, but a mere modification regarding the payment of the guardian
ad litem fees as set forth in the agreed judgment entry. In fact, a payment arrangement
was exactly what appellant asked for during the magistrate's hearing. January 5, 2011
T. at 11. Therefore, we find appellant's constitutional objections to be without merit.
{¶22} Assignments of Error III and IV are denied.
Delaware County, Case No. 11CAF030027 7
{¶23} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
s/Sheila G. Farmer_______________
s/ William B. Hoffman_________________
_s/ John W. Wise____________________
JUDGES
SGF/sg 909
[Cite as James v. Vaile, 2011-Ohio-5240.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CRAIG A. JAMES :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
QWENSANTA LIBERTY VAILE, :
FKA KRISTIN Q. LIBERTY JAMES :
:
Defendant-Appellant : CASE NO. 11CAF030027
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to
appellant.
s/Sheila G. Farmer_______________
s/ William B. Hoffman_________________
_s/ John W. Wise____________________
JUDGES