Antwerp Weatherhead Federal Credit Union v. Gonzales

507 N.E.2d 472, 30 Ohio Misc. 2d 31, 30 Ohio B. 349, 1982 Ohio Misc. LEXIS 133
CourtPaulding County Court of Common Pleas
DecidedNovember 12, 1982
DocketNos. Y-516 and Y-850
StatusPublished
Cited by3 cases

This text of 507 N.E.2d 472 (Antwerp Weatherhead Federal Credit Union v. Gonzales) is published on Counsel Stack Legal Research, covering Paulding County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Antwerp Weatherhead Federal Credit Union v. Gonzales, 507 N.E.2d 472, 30 Ohio Misc. 2d 31, 30 Ohio B. 349, 1982 Ohio Misc. LEXIS 133 (Ohio Super. Ct. 1982).

Opinion

Hitchcock, J.

Plaintiff, Antwerp Weatherhead Federal Credit Union, charges defendant Dietrich Industries, Inc. (“Dietrich”), employer of its judgment debtors, Alonzo Gonzales and Robert L. Miles, with contempt.

These charges raise issues under the aid in execution and/or garnishment statutes. No. Y-516 refers to a page in volume “Y” of the judgment docket of this court where the certificate of judgment on file shows that:

Plaintiff recovered judgment against Alonzo Gonzales in the County Court of Paulding County, Ohio, under case No. 78-CVI-390, for $509 and costs of $15.95 on November 30, 1978. This certifícate of judgment was filed with the clerk on March 18, 1980 at 10:15 a.m. The record also reflects a number of garnishment proceedings and payments thereafter, and at page 617 of an appendix that an order of garnishment was served on Dietrich on March 1,1982 and answered that same day: “(Garnished by Allen Co., IN) copy to Attorney.”

Thereafter notice of this charge of contempt was served upon Dietrich and these cases were brought to the court’s attention. Gonzales presently resides in Ohio.

No. Y-850 likewise indicates a page in volume “Y” of the judgment docket of this court where the certificate of judgment on file indicates that:

Plaintiff recovered judgment against Robert L. Miles and Patricia Miles in the County Court of Paulding County, Ohio, under case No. 81-CVF-443 for $603.94, and costs of $15.45 on January 11, 1982. This certificate was filed with the clerk on January 28,1982 at 9:30 a.m. A continuation of this record shows that an order of garnishment was served on Dietrich March 12, 1982; and that Dietrich answered the same day stating: “Garnished by Allen Superior Court.”

The court has not been given a copy of this order issued by the Indiana court [32]*32but counsel assert it is like the order issued against Gonzales. Miles presently resides in Indiana.

Dietrich is a Pennsylvania corporation licensed to do business in both Ohio and Indiana. It has a plant located in Hicksville, Defiance County, Ohio where both judgment debtors are employed in work done at that location; and another plant in Hammond, Lake County, Indiana.

Re Gonzales

In addition to the foregoing it is stipulated that Business Revenue Systems of America, Inc., d.b.a. General Collections, Inc., in Allen Superior Court, Small Claims Division, Fort Wayne, Indiana, in case No. SC 81-9698, obtained a judgment against Gonzales prior to March 1, 1982, which was unpaid on that date.

On February 2, 1982, said superior court issued a garnishment notice directly to Dietrich at its Hicksville address. Dietrich, upon advice of counsel, honored this notice and withheld earnings from Gonzales, believing that if this particular order were not honored, a notice the corporation could not avoid would be served upon the corporation at its plant located in Indiana.

It should not be overlooked that the garnishment laws of Ohio and Indiana vary greatly. See, e.g., Hodgson v. Cleveland Municipal Court (N.D. Ohio 1971), 326 F. Supp. 419, 55 O.O. 2d 142. Ohio law requires a written demand upon the basic debtor giving him an opportunity to avoid garnishment, followed by an order of garnishment obtained thereafter, by a separate application to the court, for service upon an appropriate garnishee currently indebted to the debtor, and no order in garnishment can be made against the garnishee of the principal debtor more often than once every thirty days. Nor is this latter requirement pre-empted by any federal law. Hodgson v. Hamilton Municipal Court (S.D. Ohio 1972), 349 F. Supp. 1125, 60 O.O.2d 309. Both cases illustrate that R.C. 2329.62(C)(1) and 2329.66(G)(1) did not then provide for more limited garnishments than were allowed under federal law as per Section 1677, Title 15, U.S. Code; also, in 1971, R.C. 1911.332, as to lines 4, 5, and 6 of Section (B), “Answer of Employer (Garnishee),” and lines 2, 3, and 4 of “Payments to Avoid Garnishment” of R.C. 2715.02, were expressly preempted by Sections 1673(a) and (c), Title 15, U.S. Code.

The above-mentioned U.S. Code sections are part of the Consumer Credit Protection Act first adopted by Congress on May 29,1968 as P.L. 90-321,82 Stat. 146. Amended numerous times, it was last amended October 15, 1982.

Indiana law, on the other hand, has authorized, since October 1, 1977, a single garnishment order upon the employer of a debtor as garnishee, stating:

“1. That Garnishee Defendant, withhold from the earnings of the Defendant, the following sums:
“25% of said earnings after subtracting income tax and social security withholdings and the sum of $100.50 (insert 30 x federal minimum hourly wage) per week.
“2. That withholding of said amounts shall be continued until the following is fully paid:
“(details of judgment, costs, interest and issuance costs to show Total Amount Owing) together with legal interest.
“3. The Garnishee Defendant is ordered to pay to the Clerk of this Court the withheld amounts every 30 days.”

It is perceived that this method obtains for the creditor the maximum allowed by the above-mentioned Consumer Credit Protection Act.

In No. Y-516 there issued from this court on February 25, 1982 a document titled, “Affidavit, Order and Notice of [33]*33Garnishment and Answer of Garnishee,” made at plaintiff’s request, informing Dietrich that “you owe the defendant (Gonzales) money for personal earnings and that some of that money may not be exempt from execution or attachment under the laws of the state of Ohio” and directing Dietrich to “complete Section B of this form, return the original of this form, together with any amount shown due thereon to the Common Pleas Court. * * * Deliver one copy of this form to the defendant. Keep the other copy of the form for your files.” There followed a statement that:

“Plaintiff’s judgment is $110.44
“Estimated Court Costs are 8.50
“Total Probable Amount
Owed is $118.94”

The first portion of this document (the whole contains much small print and fully occupies each side of a legal size sheet except for slightly less than one-half page with respect to service when personally made) is entitled, “Section B. Answer of Employer (Garnishee),” and contains seven interrogatories. In pertinent part, Deitrich answered:

“1. Defendant is in my/our employ (1) JL yes_no
If answer is ‘No’ give date of last employment.
“2. (A) Has defendant been garnished within 30 days preceding the date of service of this form? If the answer is ‘Yes,’ give the prior court and case number, then omit questions 3, 4, 5, 6 and 7; sign the form and return it to the court. JL yes_no
“(2) Allen Co. In. Court Case No-. Sc81-9698.”

The document also stated that the order was served on Dietrich on February 26, 1982, and it was signed and returned by “R. A. Nelson, Ind. Rd. Mgr.” the same date.

Re Miles

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Bluebook (online)
507 N.E.2d 472, 30 Ohio Misc. 2d 31, 30 Ohio B. 349, 1982 Ohio Misc. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antwerp-weatherhead-federal-credit-union-v-gonzales-ohctcomplpauldi-1982.