[Cite as Crain v. Crain, 2012-Ohio-6180.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

MARK CRAIN                     :
                               :     Appellate Case No. 2011-CA-92
     Plaintiff-Appellee        :
                               :     Trial Court Case No. 03-DR-225
v.                             :
                               :
REBECCA CRAIN, nka PROTSMAN    :     (Civil Appeal from Common Pleas
                               :     (Court, Domestic Relations)
     Defendant-Appellant       :
                               :
                            ...........

                                            OPINION

                           Rendered on the 28th day of December, 2012.

                                             ...........

NATE EICHELMAN, Atty. Reg. #0076008, Clark County CSEA, 1345 Lagonda Avenue,
Springfield, Ohio 45503
       Attorney for Plaintiff-Appellee

SCOTT A. ASHELMAN, Atty. Reg. #0074325, Ashelman & Pinard, LLC, 703 Liberty
Tower, 120 West Second Street, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1}     Defendant-appellant Rebecca Protsman appeals from an order of the Clark
                                                                                          2


County Common Pleas Court, Domestic Relations Division, finding her in contempt of court

for failure to make child support payments. Protsman contends that the trial court erred when

it held a contempt hearing without appointing counsel to represent her. We conclude that

Protsman was denied due process of law when the magistrate denied her request for appointed

counsel at the hearing. Accordingly, the order of contempt is Reversed, and this cause is

Remanded for further proceedings.



                              I. The Course of Proceedings

       {¶ 2}   Protsman and Mark Crain were married in 1995. One child was born of the

marriage. The parties were divorced in 2003 in Clark County. Crain was awarded custody

of the parties’ child. Protsman was ordered to pay child support in the sum of $162 per

month. In July 2011, the Clark County Child Support Enforcement Agency (“CSEA”) filed a

motion for contempt against Protsman for failing to pay her child support obligation.

Protsman was properly served and the matter came on for hearing in August 2011. At that

time, the magistrate granted Protsman a continuance of the hearing, and instructed her

regarding the method for obtaining appointed counsel.

       {¶ 3}   The parties appeared for hearing in October 2011, and Protsman had not

obtained counsel. At that point, the magistrate informed Protsman that the court was no

longer appointing counsel to represent defendants in civil contempt proceedings.

Specifically, the magistrate made reference to a United States Supreme Court decision made

“within the last few months” which, according to the magistrate, held that “obligors are not
                                                                                                                        3


entitled to Court appointed counsel [in child support contempt cases].” 1 The magistrate

stated, in pertinent part, as follows:

                    One thing I’m going to tell you, I’m going to deny your request for

           counsel at this time. There’s a recent U.S. Supreme Court decision that came

           down on contempt citations regarding child support, and the decision of the

           justices is that obligors that are facing jail time in civil contempts are not

           entitled to court appointed counsel. So we’ll proceed today without Court

           appointed counsel * * *.

           {¶ 4}       During the hearing, CSEA presented evidence that Protsman had a child

support arrearage in the amount of $16,183.88. Protsman testified that she was not aware that

she had a child support obligation.                      She further testified that she could not afford the

payments, since her only income consisted of $200 per month in food stamps. She also

testified that she had a medical condition that prevented her from working. She argued that

she should not be held in contempt.

           {¶ 5}      Following the hearing, the magistrate entered a decision and order finding

Protsman in contempt. The magistrate sentenced her to 30 days in jail, but suspended the

sentence pending payment of the support arrearage. Protsman did not file any objections to

the magistrate’s decision, which was adopted by the trial court. From the order holding her in

contempt, Protsman appeals.2


            1
                The case referred to by the magistrate appears to be Turner v. Rogers, ___ U.S.   , 131 S.Ct. 2507, 180 L.Ed.2d 452
 (2011).
            2
                Protsman is represented by appointed counsel in this appeal.
                                                                                            4




                                              II.

       {¶ 6}   Protsman raises the following as her sole assignment of error:



               THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO

       THE PREJUDICE OF APPELLANT IN VIOLATION OF THE U.S. AND

       OHIO CONSTITUTIONS, AND O.R.C. § 2705.031 WHEN IT DENIED

       APPELLANT’S RIGHT TO COUNSEL AT HER CIVIL CONTEMPT

       HEARING.

       {¶ 7}   Protsman contends that her right to due process of law was denied when the

magistrate proceeded with the civil contempt hearing without appointing counsel to represent

her.

       {¶ 8}   The magistrate relied upon Turner v. Rogers, ___ U.S. ___, 131 S.Ct. 2507,

180 L.Ed.2d 452 (2011) as support for the proposition that Protsman was not entitled to

court-appointed counsel. That case involved a contempt proceeding against an indigent

father who was in arrears on his child support obligation. Id. The Court held:

               [t]he Due Process Clause does not automatically require the provision

       of counsel at civil contempt proceedings to an indigent individual who is

       subject to a child support order, even if that individual faces incarceration (for

       up to a year). In particular, that Clause does not require the provision of

       counsel where the opposing parent or other custodian (to whom support funds

       are owed) is not represented by counsel and the State provides alternative
                                                                                             5


       procedural safeguards equivalent to (adequate notice of the importance of

       ability to pay, a fair opportunity to present, and to dispute, relevant information

       and express court findings as to the supporting parent’s ability to comply with

       the support order).     131 S.Ct. 2520 (emphasis sic).

       {¶ 9}     The Court went on to find that Turner’s due process rights were denied

because he had neither counsel “nor the benefit of alternative [procedural safeguards]”. Id.

Thus, while Turner does not categorically require counsel to be appointed for persons facing

criminal contempt convictions for nonpayment of child support, a reading of the opinion

demonstrates that neither does it categorically require, as stated by the magistrate, the denial

of appointed counsel.        Instead, a court must determine whether there are procedural

safeguards in place that adequately protect the obligor. There was no such determination in

this case. The magistrate’s denial of counsel was, therefore, error.

       {¶ 10}    Furthermore, the Turner Court specifically declined to address “civil

contempt proceedings where the underlying child support payment is owed to the State, for

example, for reimbursement of welfare funds paid to the parent with custody[,] * * * [in part

because] the government is likely to have counsel or some other competent representative.”

Id.   In this case, an agency of the State, CSEA, brought the contempt action. The agency

was represented by counsel. Thus, this action is in the nature of the government action that

Turner declined to address, as opposed to the private-party action that was at issue in the

Turner case. Again, this is an indication that the magistrate’s reliance upon Turner was

misplaced.

       {¶ 11} In Ohio, one can infer that the General Assembly prefers that indigent obligors
                                                                                             6


have representation; R.C. 2705.031 states, in pertinent part, as follows:

               (B)(1) 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. In Title IV-D cases, the contempt action for failure to pay support

       also may be initiated by an attorney retained by the party who has the legal

       claim, the prosecuting attorney, or an attorney of the department of job and

       family services or the child support enforcement agency.

               ***

               (C) In any contempt action initiated pursuant to division (B) of this

       section, the accused shall appear upon the summons and order to appear that is

       issued by the court. The summons shall include all of the following:

               (1) Notice that failure to appear may result in the issuance of an order of

       arrest, and in cases involving alleged failure to pay support, the issuance of an

       order for the payment of support by withholding an amount from the personal

       earnings of the accused or by withholding or deducting an amount from some

       other asset of the accused;

               (2) Notice that the accused has a right to counsel, and that if indigent,

       the accused must apply for a public defender or court appointed counsel within

       three business days after receipt of the summons;

               (3) Notice that the court may refuse to grant a continuance at the time of

       the hearing for the purpose of the accused obtaining counsel, if the accused

       fails to make a good faith effort to retain counsel or to obtain a public defender;
[Cite as Crain v. Crain, 2012-Ohio-6180.]
                 (4) Notice of the potential penalties that could be imposed upon the

        accused, if the accused is found guilty of contempt for failure to pay support or

        for a failure to comply with, or an interference with, a parenting time or

        visitation order or decree.

        {¶ 12} Ohio courts have held that counsel is required in contempt proceedings on

child support arrearages and visitation interference issues. See Evans v. Evans, 10th Dist.

Franklin No. 03AP-1203AP-80, 2003-Ohio-6073; Strizak v. Strizak, 7th Dist. Carroll No. 11

CA 872, 2012-Ohio-2367.           In Evans, the obligor appeared pro se at the contempt hearing

and stated that he did not waive his right to counsel. Id. at ¶ 8. The Tenth District held that

“[i]n order to satisfy due process requirements, the court should have taken evidence on the

issue of whether to grant a continuance to allow [the obligor] to obtain counsel which,

pursuant to R.C. 2705.031(C)(3), would have involved a determination of whether appellant

had made a good faith effort to retain counsel prior to the contempt hearing.               In the

alternative, the trial court should have conducted a hearing on the question of whether [the

obligor] was indigent and, if so, should have appointed counsel for him.” Id.

        {¶ 13} CSEA relies upon our holding in Retz v. Retz, 62 Ohio App.2d 158, 405

N.E.2d 313 (2nd Dist. 1978) as support for the magistrate’s decision regarding the

appointment of counsel. But the Retz case involved a private action, “initiated by private

parties.” Id. at 161. Thus, the holding in that case falls under the purview of Turner;

meaning that so long as there are adequate procedural safeguards, the appointment of counsel

is not automatically required.        Furthermore, in a later case – Pirtle v. Pirtle, 2d Dist.

Montgomery No. 18613, 2001 WL 815008 (July 20, 2001) – this court held that

“constitutional due process requires that a defendant charged with contempt – other than a
                                                                                             8


contempt that is punishable summarily – be advised of the charges against him, have a

reasonable opportunity to meet those charges by way of a defense or explanation, have the

right to be represented by counsel, and have an opportunity to testify and call other witnesses

in his behalf.” Id. at *3.

       {¶ 14} In this case, there is no indication on this record that Protsman waived her

right to counsel. It is possible that she did not make a good faith effort to retain a public

defender.    However, the magistrate did not inquire about her efforts in that regard.

Therefore, we conclude that the magistrate erred by failing to ensure that Protsman had either

waived counsel or failed to make a good-faith effort to retain a public defender.

       {¶ 15}    Protsman failed to file objections to the decision of the magistrate. Civ.R.

53(D)(3)(b)(iv) states: “Except for a claim of plain error, a party shall not assign as error on

appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has

objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Protsman’s failure

to object to the magistrate's decision deprived the trial court of the opportunity to correct any

errors therein; consequently, she has waived all but plain error. Bowers v. Bowers, 2d Dist.

Darke No. 1699, 2007–Ohio–1739, ¶ 6.

       {¶ 16} Here, the error committed by the magistrate went to Protsman’s right to

counsel, and resulted in her having had no counsel to defend her in the contempt proceeding.

A total deprivation of the right to counsel constitutes structural error. Johnson v. U.S., 520

U.S. 461, 468-469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), citing Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We conclude that the error herein – the

magistrate summarily having denied Protsman the right to appointed counsel without having
                                                                                              9


first found either that Protsman waived that right or that she failed to act in good faith to

timely obtain counsel – resulted in Protsman’s having been totally unrepresented by counsel at

her contempt hearing, and was thus both plain and structural, and was therefore not waived by

her failure to have objected to the magistrate’s decision. In fact, the need to preserve error at

the magistrate’s hearing by objecting to the magistrate’s decision is something that a layperson

would not be expected to know without the assistance of counsel.

       {¶ 17} Protsman’s sole assignment of error is sustained. On remand, the trial court

must either assign Protsman counsel, find that she had the financial ability to retain counsel, or

find that she waived or forfeited her right to counsel.



                                        III. Conclusion

       {¶ 18} Protsman’s sole assignment of error having been sustained, the order of the

trial court finding Protsman in contempt is Reversed, and this cause is Remanded for further

proceedings consistent with this opinion.

                                         .............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Nate Eichelman
Scott A. Ashelman
Hon. Thomas J. Capper
