[Cite as Zimmerman v. Worley, 2009-Ohio-3819.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              SENECA COUNTY




JOHN W. ZIMMERMAN,

        PLAINTIFF-APPELLEE,                            CASE NO. 13-09-18

        v.

NORMA WORLEY,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 07-CV-0138

                                     Appeal Affirmed

                           Date of Decision: August 3, 2009




APPEARANCES:

        Mark R. McBride for Appellant

        Drew A. Hanna for Appellee
Case No. 13-09-18


SHAW, J.

       {¶1} Defendant-Appellant Norma Worley, fka Norma Zimmerman

(“Worley”) appeals from the March 16, 2009 Journal Entry of Judgment of the

Court of Common Pleas of Seneca County, Ohio determining that she has not

established that she is an “innocent spouse” and awarding Plaintiff-Appellee John

W. Zimmerman (“Zimmerman”) a sum of $8,073.00.

       {¶2} This matter stems from tax liabilities incurred during the marriage of

Worley and Zimmerman. Worley and Zimmerman were married on March 16,

1968 in Fostoria, Ohio. Throughout the marriage, the parties resided in Seneca

County. Worley and Zimmerman dissolved their marriage on January 5, 1995.

       {¶3} During the course of the marriage, the parties filed joint tax returns

for the years from 1986-1991. It is unclear from the record whether those were the

only years that the parties filed jointly. At some point, the Internal Revenue

Service (IRS) audited the joint tax returns of Worley and Zimmerman. The audit

resulted in a joint tax liability for the returns from 1986-1991 of $307,450.00. The

record before this Court is unclear as to the current amount owed to the IRS, due

to increases from interest and penalties. It appears that additional amounts may

also be owed and later assessed.

       {¶4} Zimmerman’s bank accounts have been garnished to pay a portion of

this tax liability. His tax refunds have also been applied to the tax liability. In



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total, Zimmerman has paid $16,145.00 toward the tax liability that is due. It

appears that Worley may also have paid something toward the tax liability in the

case.

        {¶5} On March 16, 2007 Zimmerman filed a complaint for contribution

from a joint debtor against Worley. In his complaint, Zimmerman requested that

Worley pay half of the amount he paid on the common liability of the parties

which amounted to $8,073.00 with interest from the date payments were taken

from Zimmerman.

        {¶6} On May 14, 2007 Worley filed an answer with numerous affirmative

defenses, including an assertion that she is an “innocent spouse” as defined in the

Ohio Revised Code. Worley also filed a third-party complaint requesting that the

trial court dismiss the complaint and assign costs to Zimmerman, or in the

alternative, that the IRS be joined as a third-party defendant so that the amount of

tax liability, related interest, and penalties can be accurately ascertained and

assessed to the parties.

        {¶7} On May 18, 2007 Zimmerman requested that Worley turn over to

him any identifying information on her “innocent spouse” challenge to the IRS.

On May 31, 2007 Zimmerman filed a notice of removal to federal court. On

November 6, 2007 the United States District Court for the Northern District of

Ohio noted that there was no basis for the removal of this case to federal court.



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Case No. 13-09-18


The district court noted that “the basis for this case’s removal from state court, the

filing of an innocent spouse claim with the Internal Revenue Service by

Defendant, does not in fact apply to this case.” The district court then remanded

the case back to the Seneca County Court of Common Pleas.

       {¶8} On December 3, 2007 Zimmerman filed a motion for summary

judgment. On December 24, 2007 Worley filed a memorandum in opposition to

Zimmerman’s motion for summary judgment. On January 4, 2008 the trial court

overruled Zimmerman’s motion for summary judgment.

       {¶9} On March 14, 2008 Worley filed a motion for summary judgment.

On April 28, 2008 Zimmerman filed a memorandum in opposition to Worley’s

motion for summary judgment. On May 2, 2008 Worley’s motion for summary

judgment was overruled.

       {¶10} The matter was set for trial on May 30, 2008. It appears that this

matter did proceed to trial at that time. However, this Court was not provided with

a transcript of those proceedings. On June 30, 2008 both Zimmerman and Worley

filed written closing arguments.

       {¶11} On July 10, 2008 the trial court issued a Journal Entry of Judgment

finding as follows, with respect to Worley’s innocent spouse claim:

       Under 26 C.F.R. § 1.6015-7(c)(1), any and all proceedings must
       be stayed while an innocent spouse request is pending and for 90
       days after such request has been denied, unless the IRS
       determines that collection will be jeopardized by delay.


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(Internal citations omitted).

       {¶12} Because of the innocent spouse claim the trial court also found that

the case was “not yet ripe for adjudicating the matter before us, as there has been

no final determination as to whether [Defendant] has any liability, and this Court

is of the opinion that this suit is premature.”        (internal citations omitted).

Therefore, the trial court ordered that the case be stayed “until Defendant’s

Innocent Spouse status is determined by the IRS.          Upon notification of IRS

determination or December 31, 2008, this case will be reactivated for further Court

action.”

       {¶13} On January 9, 2009 Zimmerman made a motion to reactivate the

case. On March 16, 2009 the trial court issued a Journal Entry of Judgment

ordering Worley to pay the sum of $8,073.00 and finding as follows:

       This case had been reactivated pursuant to this Court’s Order.
       As of March 11, 2009, no determination has been issued by the
       Internal Revenue Service upon the request of Defendant for her
       request as an innocent spouse.

       Plaintiff’s counsel correctly points out this matter has been
       pending for years. The Court incorporates its July 10, 2008,
       Opinion and rules that the Defendant has not established she is
       an “innocent spouse”. The Court, during the testimony learned
       defendant also benefitted from the tax filings.

           {¶14} Worley now appeals, asserting a single assignment of error.




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Case No. 13-09-18


                      ASSIGNMENT OF ERROR

      THE   TRIAL   COURT    ERRED    BY   ALLOWING
      CONTRIBUTION FROM APPELLEE’S FORMER SPOUSE,
      APPELLANT, IN THE AMOUNT OF HALF OF A SUM OF
      MONEY LEVIED FROM APPELLEE BY THE INTERNAL
      REVENUE SERVICE (IRS) FOR A TAX LIABILITY WHEN
      APPELLANT HAD APPLIED FOR RELIEF FROM JOINT
      AND SEVERAL LIABILITY AS AN “INNOCENT SPOUSE”
      BEFORE THE IRS AND SUCH APPLICATION HAD NOT
      BEEN DENIED AS OF THE DATE OF JUDGMENT AND
      WHEN CONTRIBUTION HAS NEVER BEEN UTILIZED AS
      A REMEDY FOR TAX LIABILITIES IN THE STATE OF
      OHIO.

      {¶15} In her only assignment of error, Worley contends that the trial court

erred in ordering contribution for several reasons. However, as an initial matter,

we note that Worley has not provided this Court with a transcript of the May 30,

2008 hearing.   The burden is on the appellant, who is claiming error in the

proceedings below, to provide the appellate court with a transcript of the

proceedings. App.R. 9(B). Absent a complete and adequate record, “[a]n appellate

court reviewing a lower court’s judgment indulges in a presumption of regularity

of the proceedings below.” State v. Miyamoto, 3rd Dist. No. 14-05-43, 2006-Ohio-

1776 quoting Hartt v. Munobe (1993), 67 Ohio St.3d 3, 7, 615 N.E.2d 617; State

v. Pringle, 3rd Dist. No. 2-03-12, 2003-Ohio-4235, ¶ 10.

      {¶16} Moreover, Worley has not shown that the trial court erred in

reactivating this case. Although the trial court relied on 26 C.F.R. § 1.6015-




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7(c)(1) to stay the prior proceedings, 26 C.F.R. § 1.6015-7(C)(4)(ii) provides as

follows:

      For purposes of this paragraph (c), proceedings in court means
      suits filed by the United States for the collection of Federal tax.
      Proceedings in court does not refer to the filing of pleadings and
      claims and other participation by the Internal Revenue Service
      or the United States in suits not filed by the United States,
      including Tax Court cases, refund suits, and bankruptcy cases.

Therefore, despite the trial court’s own findings, it does not appear that the trial

court was ever required by federal law to stay proceedings, nor has Worley

demonstrated that the trial court was without authority to lift its own stay of the

proceedings.

      {¶17} Finally, Worley has not shown that a right of contribution for tax

liability is not allowed under Ohio law. On the contrary, Federal courts have

suggested that such contribution may be allowable under state law. See Ravetti v.

U.S. (9th Dist. 1994), 37 F.3d 1393.          Again, nothing provided by Worley

establishes that Ohio law would preclude such a remedy. Having established no

error in the final judgment of the trial court, Worley’s only assignment of error is

overruled.

      {¶18} Based on the foregoing, the March 16, 2009 Journal Entry of

Judgment of the Court of Common Pleas of Seneca County, Ohio is affirmed.

                                                              Judgment Affirmed.

PRESTON, P.J. and WILLAMOWSKI, J., concur.


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/jlr




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