[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
