[Cite as Longaberger v. Thompson, 2015-Ohio-4439.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
TAMALA L. LONGABERGER, et al. JUDGES: Hon. William B. Hoffman, P. J. Plaintiffs-Appellees Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. CT2015-0015 DOUGLAS THOMPSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas Case No. CC2012-0582
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 26, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP S. PHILLIPS DOUGLAS THOMPSON, PRO SE 320 Main Street, Post Office Box 190 Post Office Box 69 Zanesville, Ohio 43702-0190 Nelsonville, Ohio 45764 Muskingum County, Case No. CT2015-0015 2
Wise, J.
{¶1} Appellant Douglas Thompson appeals the March 9, 2015, decision of the
Muskingum County Court of Common Pleas ordering garnished proceeds held by the
Muskingum County Clerk of Courts to be released to Appellee Tamala L. Longaberger.
STATEMENTS OF FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} Between 2004 and 2011, Appellant Douglas Thompson was employed by
Appellee Tamala L. Longaberger as her Property Manager and professional assistant.
During that time, Appellant stole and embezzled nearly $2,000,000.00 from Appellee.
His actions gave rise to two separate legal actions: a criminal charge of Grand Theft
and a civil action seeking recovery of the amount stolen.
Criminal Action
{¶4} On October 31, 2012, an indictment was issued against Appellant. On
March 11, 2013, Appellant filed a plea of guilty to an amended charge of Aggravated
Theft ($750,000.00 - $1,500,000.00), a felony of the second degree. Also on March 11,
2013, Appellant and the State of Ohio entered into an Agreed Order on Restitution,
pursuant to which Appellant agreed to liquidate all of his assets, including retirement
assets, and apply the net proceeds toward a total restitution amount of $1,500,000.00
{¶5} On July 1, 2013, Appellant appeared for sentencing and on July 3, 2013,
an entry was filed sentencing Appellant to a stated prison term of six (6) years and
ordering him to make restitution in the amount of $1,980,457.68. Appellant remains
incarcerated. Muskingum County, Case No. CT2015-0015 3
Civil Action
{¶6} On November 16, 2012, Appellee Tamala Longaberger, et al., filed a civil
complaint against Appellant.
{¶7} On March 11, 2013, (the same day Appellant's plea of guilty was filed in
the criminal case), the parties filed a Consent Judgment, granting Appellee judgment
against Appellant in the amount of $6,535,694.16. Any money received by Appellee
pursuant to the Agreed Order on Restitution was to be applied to the civil judgment.
{¶8} Following Appellant's guilty plea, Appellant liquidated substantially all of
his assets, and a substantial amount of the proceeds thereof were deposited with the
Clerk's office and paid over to Appellee. However, on the day of sentencing, Appellant
still retained in excess of $90,000 in a bank account which had not been turned over to
the Clerk's office. Some of the funds in the bank account came from the liquidation of
retirement accounts and some came from other sources.
{¶9} A dispute arose between the parties about Appellant's compliance with the
Agreed Order on Restitution. The trial court in the criminal case decided the matter
should be pursued through the civil action.
{¶10} On July 2, 2013, Appellee filed an Affidavit, Order, and Notice of
Garnishment, along with related documents. Pursuant to the garnishment order,
Appellant's bank deposited the sum of $93,113.64 with the Clerk of Courts.
{¶11} On July 17, 2013, Appellant filed a memorandum opposing the
garnishment. The issue before the trial court was whether Appellee was entitled to the
funds seized through the garnishment order or whether Appellant was entitled to have
some of the funds returned to him. Muskingum County, Case No. CT2015-0015 4
{¶12} The parties agreed to waive any evidentiary hearing and to submit the
matter to the court on stipulations and briefs. The parties filed several stipulations and
filed various Briefs and Replies.
{¶13} On June 4, 2014, the trial court held oral arguments on the matter,
following which Appellant was ordered to file additional financial information.
{¶14} One of the arguments advanced by Appellant before the trial court was
that the Agreed Order on Restitution allowed him to retain sufficient proceeds from the
liquidation of his assets to pay for his entire income tax liability for tax year 2013. In
opposition, Appellee argued that the Agreed Order on Restitution permitted the
custodian of each retirement account to withhold required taxes and early payment
penalties, but that the net distribution from the retirement account was to be turned over
to the clerk of courts to be paid to Appellee as part of the restitution order.
{¶15} The Agreed Order on Restitution identified four retirement accounts
having a significant balance and the Stipulations and documentation submitted to the
trial court demonstrated that required taxes, fees, and penalties were withheld by the
custodians of the accounts before the funds were distributed to Appellant.
{¶16} The retirement accounts identified in the Agreed Order on Restitution and
the amounts withheld were as follows:1
1The information contained in this chart is a compilation of stipulations of the parties which occurred during the oral hearing held by the trial court on June 4, 2014, and additional stipulations contained in the Supplemental Financial Information filed jointly by the parties on June 19, 2014. Muskingum County, Case No. CT2015-0015 5
Longaberger Company 401(k) Retirement Fund $199,224.13 Fed Inc Tax Withheld -$39,844.83 Amount Distributed $159,379.30
Thirty-One Gifts 401(k) Retirement Fund $967.09 Amount withheld -$117.67 Amount Distributed $849.42
Chase Bank Roth Retirement Fund account $41,487.00 Fed Inc Tax Withheld -44280.14 State Inc Tax Withheld -$500.00 Amount Distributed $38,021.31
Prudential Life Insurance Retirement Fund account $50,445.00 Surrender Charge Withheld -$3000.00 Benefit Fee Withheld -$104.05 Annual Fee Withheld -$50.00 Amount Distributed $47,900.66
Retirement Money Market account $1.03
{¶17} On March 9, 2015, the trial court filed its Entry ordering the entire balance
of the garnished proceeds to be paid to Appellee.
{¶18} On March 10, 2015, the Clerk issued a check to Appellee in the amount of
$93,113.64.
{¶19} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶20} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
RELEASING FUNDS ESCROWED FOR THE PAYMENT OF ALL TAXES AND FEES
PURSUANT TO THE AGREED ORDER OF RESTITUTION.” Muskingum County, Case No. CT2015-0015 6
I.
{¶21} In his sole Assignment of Error, Appellant claims that the trial court erred
in releasing the escrowed funds in this matter. We disagree.
{¶22} Appellant’s entire argument is a statement that by releasing the escrowed
funds, he is now deprived of the funds to “PAY TAXES AND FEES”. (Appellant’s brief at
2). Appellant does not explain, expand or support this bare assertion.
{¶23} In absence of any statement to the contrary, we presume regularity in the
proceedings below. See, State v.
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[Cite as Longaberger v. Thompson, 2015-Ohio-4439.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
TAMALA L. LONGABERGER, et al. JUDGES: Hon. William B. Hoffman, P. J. Plaintiffs-Appellees Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. CT2015-0015 DOUGLAS THOMPSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas Case No. CC2012-0582
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 26, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP S. PHILLIPS DOUGLAS THOMPSON, PRO SE 320 Main Street, Post Office Box 190 Post Office Box 69 Zanesville, Ohio 43702-0190 Nelsonville, Ohio 45764 Muskingum County, Case No. CT2015-0015 2
Wise, J.
{¶1} Appellant Douglas Thompson appeals the March 9, 2015, decision of the
Muskingum County Court of Common Pleas ordering garnished proceeds held by the
Muskingum County Clerk of Courts to be released to Appellee Tamala L. Longaberger.
STATEMENTS OF FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} Between 2004 and 2011, Appellant Douglas Thompson was employed by
Appellee Tamala L. Longaberger as her Property Manager and professional assistant.
During that time, Appellant stole and embezzled nearly $2,000,000.00 from Appellee.
His actions gave rise to two separate legal actions: a criminal charge of Grand Theft
and a civil action seeking recovery of the amount stolen.
Criminal Action
{¶4} On October 31, 2012, an indictment was issued against Appellant. On
March 11, 2013, Appellant filed a plea of guilty to an amended charge of Aggravated
Theft ($750,000.00 - $1,500,000.00), a felony of the second degree. Also on March 11,
2013, Appellant and the State of Ohio entered into an Agreed Order on Restitution,
pursuant to which Appellant agreed to liquidate all of his assets, including retirement
assets, and apply the net proceeds toward a total restitution amount of $1,500,000.00
{¶5} On July 1, 2013, Appellant appeared for sentencing and on July 3, 2013,
an entry was filed sentencing Appellant to a stated prison term of six (6) years and
ordering him to make restitution in the amount of $1,980,457.68. Appellant remains
incarcerated. Muskingum County, Case No. CT2015-0015 3
Civil Action
{¶6} On November 16, 2012, Appellee Tamala Longaberger, et al., filed a civil
complaint against Appellant.
{¶7} On March 11, 2013, (the same day Appellant's plea of guilty was filed in
the criminal case), the parties filed a Consent Judgment, granting Appellee judgment
against Appellant in the amount of $6,535,694.16. Any money received by Appellee
pursuant to the Agreed Order on Restitution was to be applied to the civil judgment.
{¶8} Following Appellant's guilty plea, Appellant liquidated substantially all of
his assets, and a substantial amount of the proceeds thereof were deposited with the
Clerk's office and paid over to Appellee. However, on the day of sentencing, Appellant
still retained in excess of $90,000 in a bank account which had not been turned over to
the Clerk's office. Some of the funds in the bank account came from the liquidation of
retirement accounts and some came from other sources.
{¶9} A dispute arose between the parties about Appellant's compliance with the
Agreed Order on Restitution. The trial court in the criminal case decided the matter
should be pursued through the civil action.
{¶10} On July 2, 2013, Appellee filed an Affidavit, Order, and Notice of
Garnishment, along with related documents. Pursuant to the garnishment order,
Appellant's bank deposited the sum of $93,113.64 with the Clerk of Courts.
{¶11} On July 17, 2013, Appellant filed a memorandum opposing the
garnishment. The issue before the trial court was whether Appellee was entitled to the
funds seized through the garnishment order or whether Appellant was entitled to have
some of the funds returned to him. Muskingum County, Case No. CT2015-0015 4
{¶12} The parties agreed to waive any evidentiary hearing and to submit the
matter to the court on stipulations and briefs. The parties filed several stipulations and
filed various Briefs and Replies.
{¶13} On June 4, 2014, the trial court held oral arguments on the matter,
following which Appellant was ordered to file additional financial information.
{¶14} One of the arguments advanced by Appellant before the trial court was
that the Agreed Order on Restitution allowed him to retain sufficient proceeds from the
liquidation of his assets to pay for his entire income tax liability for tax year 2013. In
opposition, Appellee argued that the Agreed Order on Restitution permitted the
custodian of each retirement account to withhold required taxes and early payment
penalties, but that the net distribution from the retirement account was to be turned over
to the clerk of courts to be paid to Appellee as part of the restitution order.
{¶15} The Agreed Order on Restitution identified four retirement accounts
having a significant balance and the Stipulations and documentation submitted to the
trial court demonstrated that required taxes, fees, and penalties were withheld by the
custodians of the accounts before the funds were distributed to Appellant.
{¶16} The retirement accounts identified in the Agreed Order on Restitution and
the amounts withheld were as follows:1
1The information contained in this chart is a compilation of stipulations of the parties which occurred during the oral hearing held by the trial court on June 4, 2014, and additional stipulations contained in the Supplemental Financial Information filed jointly by the parties on June 19, 2014. Muskingum County, Case No. CT2015-0015 5
Longaberger Company 401(k) Retirement Fund $199,224.13 Fed Inc Tax Withheld -$39,844.83 Amount Distributed $159,379.30
Thirty-One Gifts 401(k) Retirement Fund $967.09 Amount withheld -$117.67 Amount Distributed $849.42
Chase Bank Roth Retirement Fund account $41,487.00 Fed Inc Tax Withheld -44280.14 State Inc Tax Withheld -$500.00 Amount Distributed $38,021.31
Prudential Life Insurance Retirement Fund account $50,445.00 Surrender Charge Withheld -$3000.00 Benefit Fee Withheld -$104.05 Annual Fee Withheld -$50.00 Amount Distributed $47,900.66
Retirement Money Market account $1.03
{¶17} On March 9, 2015, the trial court filed its Entry ordering the entire balance
of the garnished proceeds to be paid to Appellee.
{¶18} On March 10, 2015, the Clerk issued a check to Appellee in the amount of
$93,113.64.
{¶19} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶20} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
RELEASING FUNDS ESCROWED FOR THE PAYMENT OF ALL TAXES AND FEES
PURSUANT TO THE AGREED ORDER OF RESTITUTION.” Muskingum County, Case No. CT2015-0015 6
I.
{¶21} In his sole Assignment of Error, Appellant claims that the trial court erred
in releasing the escrowed funds in this matter. We disagree.
{¶22} Appellant’s entire argument is a statement that by releasing the escrowed
funds, he is now deprived of the funds to “PAY TAXES AND FEES”. (Appellant’s brief at
2). Appellant does not explain, expand or support this bare assertion.
{¶23} In absence of any statement to the contrary, we presume regularity in the
proceedings below. See, State v. Coombs (1985) 18 Ohio St.3d 123, 125. Where
findings are general, an appellate court will assume regularity rather than irregularity in
the trial court's findings. State v. Asman (1989), 63 Ohio App.3d 535, 540. In Braatz,
supra, the Supreme Court noted the “better practice, * * * is for the trial court, upon
request by a party, to file findings of fact and conclusions of law.” 85 Ohio St.3d at 45.
{¶24} In the matter sub judice, Appellant did not request findings of fact and
conclusions of law from the trial court's Judgment Entry. It is difficult, if not impossible,
to determine the basis of the trial court's ruling without findings of fact and conclusions
of law. Absent such a request for findings and conclusions, this Court has no choice but
to presume the regularity of the proceedings in the court below. We, as a reviewing
court, are limited in our scope. We must presume that the trial court considered the
evidence, applied the proper legal standard, and found sufficient evidence was
presented to support the trial court's judgment.
{¶25} Appellee, in her brief in support of garnishment, raised three independent
reasons in support of same: 1) garnishment was consistent with the Agreed Order of
Restitution; 2) the Agreed Order of Restitution was inapplicable to a proceeding under Muskingum County, Case No. CT2015-0015 7
the civil Consent Judgment as Appellee was not a party to the Agreed Order of
Restitution; 3) the garnished funds would not begin to satisfy Appellant’s tax liabilities.
{¶26} Although the trial court did not expressly state the basis for its decision,
we find substantial evidence in the record to support the trial court’s judgment.
{¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,
Muskingum County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
JWW/d 1016