Ohio Supreme Court Puts Limits on Free Attorneys for Contempt of Court

January 21, 2013

On October 24, 2012, the Supreme Court of Ohio decided that while an indigent parent may have an attorney for a hearing to decide whether they are in contempt of court or not, once they are found in contempt he or she may lose their free attorney. When a person is found in contempt, the court makes orders regarding what must be done to “purge” their contempt, or else face jail time. The court may set a date for the person on contempt (“contemn or””) to come back to court and either prove that they have purged their contempt or go to jail

In Liming v Damos, 133 Ohio St.3d 509, the Supreme Court of Ohio decided:

1. A hearing to determine whether a contemnor has purged himself of civil contempt (a “purge” hearing) is a civil proceeding; and

2. The Due Process Clauses of the Ohio and United Statues Constitutions do not guarantee an indigent parent the right to appointed counsel at a civil contempt purge hearing.

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The Supreme Court said that a purge hearing is civil in nature if the original contempt sanction was civil.

In this case, the Magistrate recommended that Mr. Liming be found in contempt for failing to pay his child support, and that he be sentenced to 30 days in jail, with the term suspended as long as he paid his full monthly child support and arrearage payments, and complied with other conditions for one year. The contempt would then be considered purged as long as Mr. Liming remained in compliance. The Judge adopted the Magistrate’s Decision.

Not quite a year later, the Athens County Child Support Enforcement Agency filed a motion to impose the sentence for Mr. Liming’s failure to comply with the seek-work program, to report employment changes to the agency, and to pay child support. The court held a hearing, and Mr. Liming requested a public defender, and the court denied his request. The court found that he had failed to comply with the conditions of the court’s purge order, and Mr. Liming was sentenced to 10 days of his 30 day sentence, with the remaining 20 suspended on the condition that he fully comply with the conditions of the purge order for one year. Mr. Liming appealed the court’s decision.

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The Fourth District Court of Appeals said that the original contempt hearing was civil in nature, and enforcing the sentence did not change the purge hearing to a criminal action. This can be confusing – how can it be a civil matter when a person is facing jail time? Contempt is it’s own animal. It is said that a person who is facing contempt has the keys to his own prison. All he has to do is comply with the court’s order, and the threat of jail time is gone.

Mr. Liming argued that it was impossible for him to pay his child support. He argued that the trial court was obligated to determine whether it was impossible for him to pay his child support. The Supreme Court of Ohio said that while inability to pay is a defense to contempt, the burden of proof is on the person asserting the defense. The court said there is a presumption of ability to pay from the fact that there is an order to pay, and because Mr. Liming did not object to the original order. In addition, Mr. Liming did not offer any evidence of inability to pay at his hearing to impose the suspended sentence.

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DISCLAIMER – Read it, it’s important!

Family Support Columbus Ohio & UIFSA

February 19, 2011

What is family support? It’s not a legal term in Ohio law, but it is included in the Uniform Interstate Family Support Act, or UIFSA. Family support is a term that is used to mean child support and/or spousal support (alimony).

The UIFSA is a result of federal regulations requiring states to cooperate in establishing child support, and assist in enforcing child support, spousal support and family support orders. If you are seeking help with interstate family support orders in Columbus, Ohio (Franklin County), you can consult with a child support attorney. To visit the website for the Franklin County Office of Child Support Enforcement, or CSEA, just place your cursor over the link and click it.

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Interstate Family Law Attorney in OH Ohio Franklin County Ohio’s CSEA has published a helpful brochure on interstate child support enforcement issues. Just click the link to read it. The brochure answers questions such as:

What to do if you have a child support case with different orders in different states?
How long will it take to work with another state to establish or collect child support?
How do you get your child support or family support order changed when one or both parents have moved to another state?
How do you enforce your child support, spousal support or family support order when one or both parties have moved to another state?

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Attorney in Ohio UIFSA Child Support Spousal Support Alimony To help Ohio parents better understand the meaning of the terms in UIFSA, the Cuyahoga County CSEA has published a helpful glossary. They also have a short and sweet explanation of UIFSA on this page. To find out information about UIFSA from the CSEA in your county, click here for a directory.

Franklin County Courts have also provided some helpful information about family support and child support. When you click the link at the end of this paragraph, scroll down past all the phone numbers and you will come to the question and answer section. http://www.fccourts.org/drj/childsupportfaq.html

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Last but not least, in unraveling UIFSA, take a look at this Ohio Attorney Guide to UIFSA. It is over ten years old, so you or your child support attorney will have to check to make sure it complies with the current law regarding UIFSA in Ohio, but it can provide a good framework for understanding the Law.

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Need more help with interstate child support or spousal support (alimony), but not sure if you need an attorney? Maybe our FAQ page will help. If you would like to meet with one of the attorneys from our office, call us at 614-225-9316 or e-mail us.

DISCLAIMER – Read it, it’s important!

Cleveland Plain Dealer call to action: Enforce Visitation!

January 4, 2011

Virginia Cornwell is a Columbus Ohio Fathers Attorney and Family Law Attorney.

On July 17, 2010, the Cleveland Plain Dealer published an editorial entitled: Visitation Rights Must Be Enforced. The editorial was a resounding call to action to courts to enforce visitation once it is awarded, and to facilitate mediation early in divorce cases, and to give the parties incentive to reach an agreement early in the case.

Whether it is awarded in a divorce case, to parents who were never married, or to grandparents, visitation is a right. It should be enforced as a right. Ohio courts routinely hand out jail sentences for unpaid child support, but jail sentences for denying visitation is far more rare. In both cases the Court is charged with enforcing its order and looking after the welfare of the children, but support and visitation contempt cases seem to receive very disparate treatment when brought before the courts.

It is true that payment of support is much more of a black and white issue than denial of companionship or parenting time. With child support, either the money was paid through the agency or it wasn’t, and it’s very easy to document whether the payment occurred. With visitation however, it is sometimes as clear as mud whether the parties followed the Court’s order. Sometimes, there are legitimate obstacles to exchanging the Child, and court orders often anticipate those obstacles. Unfortunately, legitimate obstacles are sometimes falsified to deny visitation and attempt to escape contempt.

Although Ohio courts clearly have the authority to impose jail time for denial of visitation, it is not exercised as often as it is for non-payment of support. It is this writer’s opinion that jail time is routinely imposed for non-payment of support because IT WORKS. People who were unable or unwilling to obey the Court’s order before often become able and willing to do so when they are facing the real possibility of going to jail. Perhaps more parents and more attorneys / lawyers should request jail time be ordered by the Court when a parent is found in contempt of a visitation order. Denying access to the Child can be part of a long term pattern of parental alienation that is never in the best interest of the Child.

Contempt of Court in Ohio Custody, Shared Parenting and Visitation Cases: Part 4

December 27, 2010

This is the 4th installment in a series about enforcing visitation with Contempt written by Virginia Cornwell. Virginia is a A Franklin County Ohio Custody Lawyer and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

The other articles in the contempt series can be seen below:

DEFENSES TO CONTEMPT THAT ARE NOT LIKELY TO WORK IN OHIO

In the course of this series, we’ve already discussed one defense to contempt that rarely works in Ohio, that a motion to modify the order was pending while a person continued to violate the order. Ohio Revised Code 2705.031 provides that a court can find a person in contempt, and punish them accordingly, even if the court later decides to change the order. (See ORC 2705.05 . Click here to see our post on penalties.

In other cases, the parties, and even the attorneys may mistakenly believe that if they take the positions that they were following the advice of their attorney, they cannot or will not be held in contempt. This is not true. It is no defense to a finding of contempt that a party acted in good faith or upon the advice of counsel. See Polk v. Polk, Rini v. Dyer, 2008-Ohio-4172, Miller v. Miller, State Ex Rel Adkins v. Sobb, Townsend v. Townsend, Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 etc.

Other excuses which don’t hold a lot of water in Ohio are excuses which put the wishes of the child above the order of the court, convenient ( and non-existent illnesses), convenient work and car problems that only seem to occur at the time for exchanges, etc.

Some persons who do not obey court orders mistakenly believe that they cannot be sentenced to jail time in a civil contempt action. To put it another way, they believe that the imposition of jail time makes the action a criminal contempt action, as opposed to a civil contempt action, and that he or she now has all the rights of a criminal defendant. This is not the case. In a civil contempt case, the purpose of the punishment is to coerce the contemnor to obey a judicial order for the benefit of a third party. See Polk v. Polk, Carroll v. Detty. In addition, civil contempt sanctions are conditional in nature, since the contemnor (person in contempt) is said to carry the keys to his or her prison in their pocket – because the court gives them a chance to purge their contempt (obey the court order) before they go to jail. State v. Kilbane, 61 Ohio St. 2d 201. NOTE: Purging contempt will not save you from fines, attorney fees, and a possible change of custody, just from prison.

Another legal argument that fails is the argument that jail time for contempt violates the constitutional prohibition against imprisonment for debts. WRONG. See Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 and Harris v. Harris (1979), 58 Ohio St. 2d 303 [12 O.O.3d 291].

One thing that it is important to remember is that if the other parent fails to transport the child, you can seek to hold them in contempt for failing to do so, but you need to go ahead and do the driving and/ or make the transportation arrangements yourself, unless it is impossible (not inconvenient) to do so on in the time frame remaining for the visitation. Try not to worry about the unfairness of having to do all the driving yourself – courts have remedies available for parents who WILL NOT (as opposed to can not) exchange their child, such as a change in custody.

DISCLAIMER

Enforcing Grandparents Rights to Visitation with Contempt in Ohio: Part 3 of Attorney Contempt Series

December 26, 2010

This is the 3rd installment in a series about enforcing visitation with Contempt written by Virginia Cornwell. Virginia is a A State of Ohio Grandparent Rights Lawyer and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

Enforcing Grandparent Visitation with Contempt of Court

In Ohio, when grandparents have received an order of visitation from the court, they have the right to enforce their order, just like a parent. If grandparents experience one or more occasions where they are denied their visitation, Ohio law provides them with a remedy known as contempt of court (commonly called “filing or file for contempt charges”. To read more about the law regarding contempt of court, click here.

Grandparents Rights to See Grandchildren in Ohio Before you file for contempt of court, you must make sure that you understand your order, and what it means under Ohio law. Common areas of misunderstandings are:

Transportation: who is supposed to pick up the child and who is supposed to drop the child off? Or are you supposed to meet at a neutral place somewhere in the middle?
Regular time vs. holiday or vacation time – which controls?
Missed time – under what circumstances do you get make up time? How soon after do you get make-up time?
What happens if the child is ill? Does the visitation still occur? If not, is it rescheduled?

Assuming that you are NOT under any misunderstanding about your order, and the other party simply won’t obey the court’s orders, you have rights, and the parent who refused visits is subject to penalties. Pursuant to ORC 3109.051(K) if a court finds any person has denied or interfered with visitation, the court MUST award court costs and reasonable attorney fees to the party who was wronged.

Grandparents Rights in Ohio Sometimes, when people do not want to comply with a court’s order, they file a motion to change the order, hoping that if they win, then they won’t get in trouble for what they did while their motion was pending. Unless the denial of visitation was necessary (in the eyes of the court, not the parent) to protect the child, this idea is WRONG. Ohio Revised Code 2705.031 states:

…shall have jurisdiction to make a finding of contempt for a failure to comply with, or an interference with, a parenting time or visitation order or decree and to impose the penalties set forth in section 2705.05 of the Revised Code in all cases in which the failure or interference is at issue even if the parenting time or visitation order or decree no longer is in effect.

The other articles in the contempt series can be seen below: