[Cite as Eaton Family Credit Union v. Brier, 2012-Ohio-178.]




             Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96783




                  EATON FAMILY CREDIT UNION
                                                  PLAINTIFF-APPELLEE

                                                     vs.

                     JONATHAN A. BRIER, ET AL.
                                                  DEFENDANTS-APPELLANTS




                          JUDGMENT:
               AFFIRMED IN PART; REVERSED IN PART
                         AND REMANDED


                                       Civil Appeal from the
                                      Euclid Municipal Court
                                      Case No. 09 CVF 00593
         BEFORE:       Blackmon, A.J., Kilbane, P.J., and Keough, J.

      RELEASED AND JOURNALIZED:                      January 19, 2012
ATTORNEY FOR APPELLANTS

Andrew S. Pollis
Joshua A. Lusk, Certified Legal Intern
Milton A. Kramer Law Clinic Ctr.
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, Ohio 44106



ATTORNEYS FOR APPELLEE

Matthew M. Young
Kevin C. Susman
Weltman, Weinberg & Reis
323 W. Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

      {¶ 1} Appellant Jonathan A. and Darla J.             Brier (“the Briers”) appeal1

from the Euclid Municipal Court’s garnishment order and assign the

following errors for our review:

      “I. The trial court erred in rejecting Mr. Brier’s affidavit
      of indigency and requiring him to pay a fee to file his
      notice of appeal.”

      “II.  The trial court erred in overruling Mr. Brier’s
      objections to the garnishment of his personal earnings of
      February 4, 2011, most of which were exempt from
      garnishment.”

      “III. The trial court erred in overruling Mr. Brier’s
      motion to require proper calculations of subsequent
      garnishments of his personal earnings, including his
      personal earnings of March 4, 2011.”

      “IV.      The trial court erred in denying Mr. Brier’s motion

      to recall garnished personal earnings released to the

      plaintiff before the court ruled on Mr. Brier’s objections.”

      {¶ 2} Having reviewed the record and pertinent law, we reverse the trial

court’s judgment in part and remand for the trial court to reimburse Brier the

$50 fee he paid to the municipal court to file his appeal. The apposite facts

follow.

                                           Facts



      1
          The appellee did not file an appellee’s brief.
      {¶ 3} On April 21, 2009, the trial court issued a default money judgment

in the amount of $739.33, plus interest, against the Briers in favor of Eaton

Family Credit Union (“Eaton Family”). On January 25, 2011, a garnishment

order was issued to garnish Jonathan Brier’s wages at Bally Total Fitness

(“Bally”).   On February 1, 2011, Brier requested a hearing regarding the

garnishment of his personal income. He did not contest the amount he owed

Eaton Family; he argued that pursuant to the garnishment formula set forth

in R.C. 2329.66(A)(13), which is based upon whether paychecks are issued

monthly or biweekly, the amount being garnished from his pay should be less.

      {¶ 4} On March 1, 2011, a hearing was conducted before a magistrate.

Pursuant to the App.R. 9(C) statement presented on appeal, Jonathan Brier

was the sole witness at the hearing.       The evidence showed that Bally

employed Brier as a personal trainer. His income at Bally consisted of two

components.     He received commissions from the sale of personal-training

sessions once a month.       He was also paid for the time he spent in

personal-training sessions with Bally’s customers for which he was paid on a

biweekly basis. Brier presented as evidence his earnings statements from

Bally for the period of July 30, 2010 through February 24, 2011.          The

statements listed his total income for each pay period and also distinguished

between the wages he received as commission income and his wages he

received for personal-training sessions.
      {¶ 5} The   magistrate        concluded   the   garnishment   amount   was

appropriate pursuant to R.C. 2329.66(A)(13), because the decisive factor was

that Brier was paid biweekly.          Brier filed objections to the magistrate’s

decision, which were overruled by the trial court.         The trial court agreed

with the magistrate’s conclusion that the biweekly formula was the correct

way to determine the exempt earnings.

                             Affidavit of Indigence

      {¶ 6} In his first assigned error, Brier argues the trial court erred when

it required him to pay $50 to file his notice of appeal. Relying on this court’s

decision in Tisdale v. A-Tech Automotive Mobile Serv. & Garage, Cuyahoga

App. No. 92825, 2009-Ohio-5382, Brier argues that he is indigent and should

not be subject to the filing fee.

      {¶ 7} In Tisdale, the appellant presented to the Euclid Municipal Court

his notice of appeal, praecipe, docketing statement, and an affidavit of

indigency in support of his contention that he could not afford to pay the

filing fee for his appeal. The municipal court refused to file his appeal until

he paid the fee; the appellant filed a mandamus action in this court

requesting that we require the municipal court to waive the fee and file his

appeal.

      {¶ 8} This court held that Euclid Municipal Court had “to accept for

filing Tisdale’s notice of appeal and accompanying materials as well as to
transmit all filings to the clerk of the court of appeals. See App.R. 3 and Loc.

App.R. 3.” Id. 15. However, this court stressed:

      “We emphasize, however, that this decision does not

      prevent the Euclid Municipal Court from imposing or

      enforcing its own filing fee for appeals.       Likewise, as part

      of   this    action,   this   court   makes   no   determination

      regarding the propriety of the municipal court’s exercise

      of its discretion in denying Tisdale’s request for indigency

      status.     Nevertheless, a trial court must accept for filing

      and transmit to the clerk of the court of appeals a notice

      of appeal praecipe, and docketing statement if the

      appellant also files an affidavit of indigency for purposes

      of commencing an appeal.”

      {¶ 9} Tisdale stands for the proposition that a municipal court cannot

refuse to accept for filing an appellant’s notice of appeal when it has an

affidavit of indigency attached. Here, the municipal court refused to file the

appeal and concluded that Brier was not indigent, stating as follows: “Mr.

Brier’s request for indigency status is denied, and the requested Notice of

Appeal should not be accepted for filing until such time as the court costs for

such filing are paid.” Under Tisdale, the Euclid Muncipal Court cannot hold

an appeal hostage until payment of the fee is made; therefore, the court did
err in this respect. However, because Tisdale paid the fee, he was able to file

his appeal; therefore, the court’s action did not prevent him from filing the

appeal as in Tisdale. Consequently, the issue is whether Brier is entitled to

a reimbursement of the $50 fee.

         {¶ 10} “The standard of review in an appeal from a decision denying a

motion for leave to proceed in forma pauperis is an abuse of discretion.”

Wilson v. Ohio Dept. of Rehab. & Corr. (2000), 138 Ohio App.3d 239, 243, 741

N.E.2d 152. An “abuse of discretion” has been defined as an unreasonable,

arbitrary, or unconscionable act on the part of the trial court. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.          This court

accepted Brier’s affidavit of indigence, which was based on the same

information that Brier provided to the trial court to support his claim of

indigence.      We did not require that he pay the $125 appellate fee.

Consequently, we conclude the trial court abused its discretion by not finding

Brier indigent for purposes of paying the $50 municipal court appellate fee.

Accordingly, Brier’s first assigned error has merit in part; therefore, we

reverse the trial court’s decision requiring Brier to pay the $50 fee and

remand the matter for the trial court to issue a reimbursement of $50 to

Brier.

                      Garnishment of Exempt Earnings
      {¶ 11} We will address Brier’s second and third assigned errors together

as they concern the calculation used to determine the amount of wages to be

garnished from Brier’s biweekly earnings.

      {¶ 12} R.C. 2329.66 expressly allows for a portion of “personal earnings”

to be held exempt from execution, attachment, or garnishment and provides

in part as follows:

      “(A) Every person who is domiciled in this state may hold

      property        exempt    from     execution,      garnishment,

      attachment, or sale to satisfy a judgment or order, as

      follows:

      “(13)[P]ersonal earnings of the person owed to the person,
      for services in an amount equal to the greater of the
      following amounts:

      “(a) If [the employee is] paid weekly, thirty times the
      current federal minimum hourly wage; if paid biweekly,
      sixty times the current federal minimum hourly wage; if
      paid semimonthly, sixty-five times the current federal
      minimum hourly wage; or if paid monthly, one hundred
      thirty times the current federal minimum hourly wage
      that is in effect at the time the earnings are payable, as
      prescribed by the ‘Fair Labor Standards Act of 1938,’ 52
      Stat 1060, 29 U.S.C. 206(a)(1), as amended;

      “(b) Seventy-five per cent of the disposable earnings owed
      to the person.”

      {¶ 13} Therefore, to comply with the statute, a garnishee must

determine the amount that is exempt under both subsections (a) and (b)
above and then subtract the higher amount from the employee’s personal

earnings. The sum amount remaining is the nonexempt amount that can be

subject to garnishment.

      {¶ 14} Here, it is undisputed that Brier is paid biweekly.    However,

because one of the biweekly paychecks contains payment for commissions

that he receives monthly, Brier contends that the exempted amount should be

higher.   We disagree.    The statute is focused on the number of times a

person is paid within a month. Brier receives his commission once a month.

Nevertheless, he receives a paycheck twice a month with the commission

contained in one of the paychecks.        The statute does not require a

break-down of the biweekly checks to determine whether they include

payments received once a month. Consequently, the formula for biweekly

paychecks applies. No variation is necessary or required. Thus, the trial

court did not err by denying Brier’s objections to the magistrate’s report and

adopting the report.

      {¶ 15} Brier also argues that even if the court was correct in using the

full amount of his paychecks for calculating the exemption, that for his pay

period of March 4, 2011, his pay was garnished $8.79 more than permitted.

Our review of Brier’s objections to the magistrate’s report shows that this

argument was not raised as part of his objections.       Failure to raise an

objection in the magistrate’s report, waives the error on appeal. Civ.R.
53(3)(d); Slowbe v. Slowbe, Cuyahoga App. No. 83079, 2004-Ohio-2411;

Hampton-Jones     v.   Jones,   Cuyahoga    App.   Nos.   77412   and    77279,

2001-Ohio-4229. However, because of the nature of this case, we address

Brier’s argument and find it lacks merit.

      {¶ 16} Brier claims that applying the 75% formula to his March 4, 2011

pay instead of the biweekly formula, would have led to a bigger exemption.2

We disagree. Using the biweekly formula (minimum federal wage of $7.25 x

60 = 435) the $435 was exempt from his paycheck, leaving approximately

$145 subject to garnishment ($580 - 435 = 145). Applying the 75% of income

formula, we come to the same amount that is subject to garnishment. ($580 x

.75 = 435). Therefore, Brier is incorrect in maintaining he is due a refund of

$8.79. Accordingly, Brier’s second and third assigned errors are overruled.

                       Unauthorized Garnishments

      {¶ 17} In his fourth assigned error, Brier argues that the bank made

unauthorized garnishments from his bank account prior to the court adopting

the magistrate’s decision.

      {¶ 18} We agree that only judges, not magistrates, may terminate claims

or actions by entering judgment. Harkai v. Scherba Industries, Inc. (2000),


      2
       As we stated previously, the court must determine the exemption under the
correct formula (either monthly or biweekly) and then additionally determine the
amount that would be exempted under the general 75% formula; the formula that
leaves the greatest exemption is used for calculating the garnishment.
136 Ohio App.3d 211, 217, 736 N.E.2d 101.           We recognize that Eaton

continued to garnish Brier’s wages before the trial court adopted the

magistrate’s report; however, the trial court did adopt the report. Thus,

Brier’s argument is moot. We see no necessity to require Eaton Family to

reimburse Brier for the amounts garnished prior to the court’s adoption of the

magistrate’s report, only to have Brier return the amounts to Eaton Family.

Accordingly, Brier’s fourth assigned error is overruled.

      {¶ 19} Judgment is affirmed in part, reversed in part and remanded for

further proceedings consistent with this opinion.

      It is ordered that appellant and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
