[Cite as In re J-L.H, 2014-Ohio-1245.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100469




                                         IN RE: J-L.H.
                                         A Minor Child

                                 [Appeal By CJFS-OCSS]




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. SU 12704414

        BEFORE: Boyle, A.J., Celebrezze, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                   March 27, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony R. Beery
Assistant County Prosecutor
Juvenile Division
CJFS-OCSS
P.O. Box 93894
Cleveland, Ohio 44101

FOR APPELLEES

Troy Seals, Jr., pro se
21214 Gardenview Drive
Maple Heights, Ohio 44137

Shadaeah Kirk, pro se
21000 Hillgrove Avenue
Maple Heights, Ohio 44137
MARY J. BOYLE, A.J.:

         {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

         {¶2} Plaintiff-appellant, Cuyahoga County Job and Family Services, Office of

Child Support Services (“the agency”), appeals the juvenile court’s judgment dismissing

its complaint filed on March 15, 2012. It raises two assignments of error for our review:

         1. The trial court erred in dismissing the complaint in contempt for failure
         to attach a child support guideline worksheet to the administrative order
         when a worksheet was not required by [R.C. Chapter 3119].

         2. The trial court erred in dismissing the complaint in contempt because the
         administrative order was final and enforceable in court.

         {¶3} Finding merit to the agency’s appeal, we reverse and remand to the trial

court.

                         Procedural History and Factual Background

         {¶4} According to the agency’s March 15, 2012 complaint, it issued an

administrative order to defendant-appellee, Troy Seals, Jr., to pay child support for his

minor child (born in April 2009) in the amount of $50 per month, plus a 2 percent

processing fee, effective August 17, 2010.    The agency attached the administrative order

to its complaint.    The agency alleged in the complaint that Seals failed to pay the

monthly child support.        The agency requested the court to adopt the attached

administrative child support order, make any finding of arrears, establish a payment plan

for said arrears, find Seals in contempt, sentence accordingly, and order him to pay the
costs of the action.

       {¶5} A magistrate held a hearing on the agency’s complaint in May 2013.         At

the hearing, Seals admitted that he had never paid any child support pursuant to the

administrative order.   The magistrate stated at the close of the hearing, “[t]he CSEA

order attached to the complaint is adopted as a court order.”     The magistrate further

stated that Seals was in contempt, and he sentenced him to 30 days in jail, suspended.

At the hearing, the magistrate further stated that Seals’s current support would remain at

$51 per month, that he owed back support of $1,606.15 through March 31, 2013, and that

he would pay that arrears amount at $10 per month beginning July 1, 2013.             The

magistrate then issued a seek-work order to Seals, and informed him of how he could

purge his contempt.

       {¶6} When the magistrate issued his written decision, however, he dismissed the

agency’s complaint.     The magistrate found that the agency had not established by clear

and convincing evidence that it had previously ordered Seals to pay child support because

the administrative order, attached to the agency’s complaint, did not contain a child

support guideline worksheet.

       {¶7} The agency filed objections to the magistrate’s decision, which were

overruled by the trial court.     The trial court affirmed, approved, and adopted the

magistrate’s decision as its own. The trial court stated:

       The court makes the following findings and orders: The court further finds
       that [the agency’s] complaint in contempt does not contain a child support
       guideline worksheet such that the complaint is defective for purposes of
       adoption by the court in accordance with Marker v. Grimm, [65 Ohio St.3d
       139, 601 N.E.2d 496 (1992)] which requires the court to attach the child
       support guideline computation worksheet; and therefore, to adopt said order
       as an order of the court would be contrary to law.

       {¶8} The court then ordered that the agency’s complaint against Seals be

dismissed. It is from this judgment that the agency appeals.

                                         Contempt

       {¶9} “Contempt is a disregard of, or disobedience to, an order or command of

judicial authority.” First Bank of Marietta v. Mascrete, Inc., 125 Ohio App.3d 257, 263,

708 N.E.2d 262 (4th Dist.1998). The contempt process was created “to uphold and

ensure the effective administration of justice[,] * * * to secure the dignity of the court[,]

and to affirm the supremacy of law.”      Cramer v. Petrie, 70 Ohio St.3d 131, 133, 637

N.E.2d 882 (1994).

       {¶10} Failure to pay court-ordered child support and alimony constitutes civil

contempt.    R.C. 2705.031; Herold v. Herold, 10th Dist. Franklin No. 04AP-206,

2004-Ohio-6727, ¶ 25.     “A prima facie case of civil contempt is made when the moving

party proves both the existence of a court order and the nonmoving party’s

noncompliance with the terms of that order.” Wolf v. Wolf, 1st Dist. Hamilton No.

C-090587, 2010-Ohio-2762, ¶ 4.      “[T]he burden of proof for civil contempt is clear and

convincing evidence.”    (Citation omitted.) Delawder v. Dodson, 4th Dist. Lawrence No.

02CA27, 2003-Ohio-2092, ¶ 10.

       “Clear and convincing evidence” has been defined as “that measure or
       degree of proof which is more than a mere ‘preponderance of the evidence,’
       but not to the extent of such certainty as is required ‘beyond a reasonable
       doubt’ in criminal cases, and which will produce in the mind of the trier of
       facts a firm belief or conviction as to the facts sought to be established.”

Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 331, 708 N.E.2d 193 (1999), quoting

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

       {¶11} An appellate court will not overturn a trial court’s finding in a contempt

proceeding absent an abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d

10, 11, 417 N.E.2d 1249 (1981). An abuse of discretion is the trial court’s “‘failure to

exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.

Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th

Ed.2004).

                                     Marker v. Grimm

       {¶12} In this case, the trial court dismissed the agency’s complaint against Seals

because it found that the agency did not establish by clear and convincing evidence that

Seals was in contempt. The trial court reasoned that because the agency failed to attach a

child support guideline worksheet to the administrative order, the agency did not establish

that it had ever ordered Seals to pay child support. In dismissing the agency’s complaint,

the trial court explained that if it adopted the agency’s administrative order as its own, the

order would be contrary to law pursuant to Marker v. Grimm, 65 Ohio St.3d 139, 601

N.E.2d 496 (1992), because it lacked the guideline worksheet.

       {¶13} In Marker, the Ohio Supreme Court held that “[a] child support computation

worksheet, required to be used by a trial court in calculating the amount of an obligor’s
child support obligation in accordance with R.C. 3113.215, must actually be completed

and made a part of the trial court’s record.” Id. at paragraph one of the syllabus. The

Supreme Court further held that “[t]he terms of R.C. 3113.215 are mandatory in nature

and must be followed literally and technically in all material respects.” Id. at paragraph

two of the syllabus.

       {¶14} The Ohio Supreme Court explained its reasoning in Marker as follows:

              [A] review of R.C. 3113.215 leads us to the conclusion that the
       statute mandates that a court “use” a worksheet identical in content and
       form to the [model] worksheet, and that the amount of an obligor’s child
       support obligation must be calculated “in accordance with,” and “pursuant
       to,” the basic child support schedule and appropriate worksheet. In our
       judgment, these mandates very clearly indicate that a worksheet must
       actually be completed for the order or modification of support to be made.
       The responsibility to ensure that the calculation is made using the schedule
       and worksheet rests with the trial court. R.C. 3113.215(B)(1) provides
       that the court, in performing its duties under the statute, is not required to
       accept any calculations in a worksheet prepared by any party to the action or
       proceeding. As R.C. 3113.215 requires the applicable worksheet to be
       completed, there is every reason to require that the trial court include that
       document in the record. Only in this fashion can appellate courts be
       assured that the literal requirements of R.C. 3113.215 have been followed,
       and that an order or modification of support is subject to meaningful
       appellate review.

Id. at 142.

       {¶15} The agency argues that Marker is not applicable because it addressed the

former R.C. 3113.215, which has been repealed, and not the current child support laws set

forth in R.C. Chapter 3119.

       {¶16} “For the most part, [however,] R.C. Chapter 3119 is a re-enactment of

former R.C. 3113.215 which split the former statute’s many subsections into independent
statutory sections of a new revised code chapter, but did not substantively change the

statutory framework.” In re Day, 7th Dist. Belmont No. 01BA28, 2003-Ohio-1215, ¶ 16.

 For example, the former R.C. 3113.215(E) provided that when a court or child support

enforcement agency was calculating the amount of child support an obligor had to pay, it

had to “use a worksheet that [was] identical in content and form” to the one set forth in

that subsection. The current law, set forth in R.C. 3119.022 and 3119.023, continues to

mandate that a court or agency calculating a child support obligation “shall use a

worksheet that is identical in content and form” to the ones set forth in these sections.1

       {¶17} Similarly, the former R.C. 3113.215(B)(1) provided that in any action in

which a court or agency was determining the amount of child support that would be paid

pursuant to a court or administrative order, the court or agency had to calculate the

amount of child support “in accordance with the basic child support schedule,” “the

applicable worksheet,” and the other provisions of the child support laws. Former R.C.

3113.215(B)(1) further provided that “[i]n performing its duties under this section, the

court or agency [was] not required to accept any calculations in a worksheet prepared by

any party to the action or proceeding.”

       {¶18} Under the current laws, R.C. 3119.02 continues to mandate that in any

action in which a court or agency is determining the amount of child support that should

be paid pursuant to the court or administrative order, “the court or agency shall calculate


         R.C. 3119.022 sets forth the computation worksheet that courts and agencies should use for
       1


sole residential parents or shared parenting; R.C. 3119.023 sets forth the computation worksheet
courts and agencies should use for split parental rights.
the amount of the obligor’s child support obligation in accordance with the basic child

support schedule, the applicable worksheet, and the other provisions of sections 3119.02

to 3119.24 of the Revised Code.” R.C. 3119.02 further provides that “[i]n performing its

duties under this section, the court or agency is not required to accept any calculations in

a worksheet prepared by any party to the action or proceeding.”

       {¶19} Thus, we find the rule of Marker applicable to the current child support

laws, even though it addresses the former R.C. 3113.215. See Cutlip v. Cutlip, 5th Dist.

Richland No. 02CA32, 2002-Ohio-5872, ¶ 7-8 (finding the holding in Marker applicable

to R.C. Chapter 3119). Accordingly, pursuant to both former R.C. 3113.215 and the

current provisions of R.C. Chapter 3119, a trial court must actually complete a child

support worksheet (except for the limited circumstances discussed in the following

section of this opinion) and make that completed worksheet part of the record when it is

making a child support determination.        See Day, 7th Dist. Belmont No. 01BA28,

2003-Ohio-1215, ¶ 18, citing Marker, 65 Ohio St.3d 139, 601 N.E.2d 496, paragraph one

of the syllabus.

                               R.C. 3119.021 and 3119.04

       {¶20} The agency further argues that even if Marker is applicable to the current

child support laws, it is not applicable in this case. The agency maintains that it did not

attach a child support computation worksheet to the administrative order because the

worksheet was unnecessary due to the fact that the combined gross income of the parties

was less than $6,600 under R.C. 3119.021 and 3119.04. The agency points out that on
the administrative order, it crossed out the words, “guideline worksheet attached,” and

initialed it, because it was not required to use or attach a worksheet. It therefore argues

that Marker is not applicable in this case because the parties earned a combined gross

income of less than $6,600.

       {¶21} R.C. 3119.021 sets forth a table of the basic child support schedule, based

on the combined gross income of the parties and the number of children they have (from

one to six children). It provides that

       [t]he basic child support schedule shall be used by all courts and child
       support enforcement agencies when calculating the amount of child support
       to be paid pursuant to a child support order, unless the combined gross
       income of the parties is less than sixty-six hundred dollars or more than one
       hundred fifty thousand dollars[.]

(Emphasis added.) Thus, the basic child support schedule lists the basic amount of child

support that courts and agencies should use when the parties combined gross income is

between $6,600 and $150,000.

       {¶22} R.C. 3119.04 sets forth how courts and child support enforcement agencies

should determine child support obligations where combined gross income is less than

$6,600 or greater than $150,000. R.C. 3119.04 provides:

       (A) If the combined gross income of both parents is less than six thousand
       six hundred dollars per year, the court or child support enforcement agency
       shall determine the amount of the obligor’s child support obligation on a
       case-by-case basis using the schedule as a guideline. The court or agency
       shall review the obligor’s gross income and living expenses to determine
       the maximum amount of child support that it reasonably can order without
       denying the obligor the means for self-support at a minimum subsistence
       level and shall order a specific amount of child support, unless the obligor
       proves to the court or agency that the obligor is totally unable to pay child
       support, and the court or agency determines that it would be unjust or
       inappropriate to order the payment of child support and enters its
       determination and supporting findings of fact in the journal.

       (B) If the combined gross income of both parents is greater than one
       hundred fifty thousand dollars per year, the court, with respect to a court
       child support order, or the child support enforcement agency, with respect
       to an administrative child support order, shall determine the amount of the
       obligor’s child support obligation on a case-by-case basis and shall consider
       the needs and the standard of living of the children who are the subject of
       the child support order and of the parents. The court or agency shall
       compute a basic combined child support obligation that is no less than the
       obligation that would have been computed under the basic child support
       schedule and applicable worksheet for a combined gross income of one
       hundred fifty thousand dollars, unless the court or agency determines that it
       would be unjust or inappropriate and would not be in the best interest of the
       child, obligor, or obligee to order that amount. If the court or agency
       makes such a determination, it shall enter in the journal the figure,
       determination, and findings.

       {¶23} Thus, when the parties’ combined gross income is less than $6,600, courts

and child support enforcement agencies shall determine the amount of child support on a

case-by-case basis, using the child support schedule as a guideline, and making sure that

the order does not deny the obligor the means for self-support. It is clear that under this

subsection, a court or agency is not required to use the child support guideline worksheet

when determining the amount of child support.      Courts or agencies are merely required

to use the child support schedule as a guideline. R.C. 3119.04(A); see also Zeitler v.

Zeitler, 9th Dist. Lorain No. 04CA008444, 2004-Ohio-5551, ¶ 8.

       {¶24} When the parties’ combined gross income is over $150,000, R.C.

3119.04(B) also requires courts and child support enforcement agencies to determine the

amount of child support on a case-by-case basis.    In doing so, courts and agencies must

consider “the needs and the standard of living of the children,” and make sure that the
support obligation is not less than it would have been had the parties made a combined

gross income of $150,000.         Thus, courts and agencies cannot award less than the

$150,000 equivalent unless they determine that it would be unjust or inappropriate and

would not be in the best interest of the children. But if courts or agencies do make this

determination and award less than the $150,000 equivalent, then they must journalize that

figure, determination, and findings.      Thus, under R.C. 3119.04(B), courts are not

required to use the guideline worksheet to determine the appropriate amount of child

support (as long as they make a finding that the amount is not less than the $150,000

equivalent). See Zeitler at ¶ 8.

       {¶25} After reviewing R.C. 3119.021 and 3119.04, we find that the reasoning set

forth by the Ohio Supreme Court in Marker simply does not apply to situations where

parties earn less than $6,600 or more than $150,000.    Marker applies to cases where the

applicable statutes mandate courts and agencies to use the child support guideline

worksheet. Id. at 142. R.C. 3119.02 and 3119.021 require courts and agencies to use

the basic child support schedule and applicable worksheet when the parties earn between

$6,600 and $150,0000.         But R.C. 3119.04(A) and (B) do not require courts or child

support enforcement agencies to use the schedule or guideline worksheet when the parties

earn less than $6,600 or more than $150,000. Indeed, when the parties’ combined gross

income is less than $6,600, courts and agencies are not required to even reference the

guideline worksheet at all.

       {¶26} Accordingly, the trial court erred when it ruled that if it adopted the
administrative order as its own, the order would be contrary to law without the child

support guideline worksheet attached. Thus, we agree that the trial court abused its

discretion when it dismissed the agency’s complaint.

       {¶27} The agency’s first assignment of error is sustained.

                               Final and Enforceable Order

       {¶28} In its second assignment of error, the agency argues that the trial court erred

in dismissing its complaint in contempt because the administrative order was a final and

enforceable order in court.

       {¶29} R.C. 3111.84 provides:

       The mother or father of a child who is the subject of an administrative
       support order may object to the order by bringing an action for the payment
       of support and provision for the child’s health care under section 2151.231
       of the Revised Code in the juvenile court or other court with jurisdiction
       under section 2101.022 or 2301.03 of the Revised Code of the county in
       which the child support enforcement agency that employs the administrative
       officer is located. The action shall be brought not later than thirty days
       after the date of the issuance of the administrative support order. If neither
       the mother nor the father brings an action for the payment of support and
       provision for the child’s health care within that thirty-day period, the
       administrative support order is final and enforceable by a court and may be
       modified only as provided in Chapters 3119., 3121., and 3123. of the
       Revised Code.

       {¶30} After review, we find merit to the agency’s second assignment of error.

Because father never contested the administrative order, it was final and enforceable

against him 30 days after it was issued, which was on August 17, 2010.

       {¶31} Accordingly, we sustain the agency’s second assignment of error.

       {¶32} Judgment reversed and remanded to the lower court for further proceedings
consistent with this opinion.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court, juvenile division, 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
EILEEN T. GALLAGHER, J., CONCUR
