[Cite as Musgrove v. Helms, 2011-Ohio-1614.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
TINA M. MUSGROVE :
Plaintiff-Appellant : C.A. CASE NOS.08CA96, 09CA76 vs. : T.C. CASE NO. 04DR0178
DAVID LEE HELMS : (Civil Appeal from Common Pleas Court, Domestic Defendant-Appellee : Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 1st day of April, 2011.
Tina M. Musgrove, 219 S. Delmar Avenue, Dayton, OH 45403 Plaintiff-Appellant, Pro se
Ann Catherine Harvey, Atty. Reg, No. 0054585, 2310 Far Hills Avenue, Suite 3, Dayton, OH 45419 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} This appeal consolidates two appeals taken from
post-decree orders entered by the domestic relations court in a
divorce action. We find that the court did not abuse its discretion
when it held Plaintiff-Appellant, Tina M. Musgrove, in contempt
for failure to pay court-ordered child support in the amount of 2
fifty dollars per month. However, we find that the court abused
its discretion when it also increased Plaintiff-Appellant’s child
support obligation to $341 per month, and when it subsequently
dismissed several motions Plaintiff-Appellant had filed for her
failure to prosecute.
{¶ 2} The marriage of David Lee Helms and Tina M. Musgrove
was terminated by a decree of divorce on September 28, 2005. The
court granted the parties’ motion for shared parenting of their
minor child. Subsequently on May 1, 2007, on David’s 1 motion,
the court terminated its shared parenting order and designated
David the residential parent and legal custodian of the minor child.
Tina was granted rights of visitation, which was to be supervised
visitation. The court also ordered Tina to pay child support at
the statutory minimum rate of fifty dollars per month.
Case No. 2008CA96
{¶ 3} On August 7, 2007, David filed a motion pursuant to R.C.
2705.031(B), asking the court to find Tina in contempt for failure
to pay the child support the court had ordered. David also asked
the court to order an increase in Tina’s child support obligation
due to a change in her financial circumstances.
{¶ 4} David’s motion and other motions the parties filed came
1 For clarity and convenience, the parties are identified by their first names. 3
on for hearing on February 11, 2008, following several
continuances. David appeared, represented by counsel. Tina
failed to appear. The court denied a motion requesting another
continuance Tina filed on that morning, and proceeded to take
evidence David offered.
{¶ 5} On March 26, 2008, the court held Tina in contempt for
her failure to pay court-ordered child support of fifty dollars
per month. The court continued Tina’s sentencing on the contempt
finding to a later date. The court also increased Tina’s child
support obligation from fifty dollars per month to $341 per month.
{¶ 6} The court held a hearing on October 22, 2008 to determine
the sentence it would impose for Tina’s contempt. The court
sentenced Tina to thirty days in jail, but alternatively ordered
that she could purge her contempt and avoid the jail sentence by
paying the full child support arrearage due. The court journalized
its judgment on November 12, 2008.
{¶ 7} On November 18, 2008, Tina filed a notice of appeal from
the final order imposing her sentence, and from five orders denying
motions Tina had filed subsequent to the finding of contempt.
That appeal was docketed as Case No. 2008CA96. Tina filed a brief
in that appeal on June 8, 2009, assigning seven errors for our
review.
FIRST ASSIGNMENT OF ERROR 4
{¶ 8} “THE TRIAL COURT’S FINDING OF CONTEMPT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR
{¶ 9} “THE TRIAL COURT’S FINDING OF CONTEMPT WAS BASED ON
UN-CREDIBLE, INSUFFICIENT EVIDENCE.”
{¶ 10} “Judgments supported by some competent, credible
evidence going to all the essential elements of the case will not
be reversed by a reviewing court as being against the manifest
weight of the evidence.” C.E. Morris Co. V. Foley Construction
Co. (1978), 54 Ohio St.2d 279, Syllabus by the Court.
{¶ 11} David testified at the hearing on February 11, 2008 that,
following the court’s order requiring Tina to pay child support
of fifty dollars per month, he had never received any support.
(Tr. 7). The court could reasonably infer from that testimony
that Tina had paid no support. Tina does not contend that she
paid any support or that David’s testimony is incorrect in that
respect.
{¶ 12} David’s testimony is neither uncredible nor insufficient
to support the court’s finding of contempt. David qualifies as
a person with knowledge of the matter to which he testified, which
is sufficient authentication of his competence to admit that
testimony. Evid.R. 901(B)(1). Whether David was a credible
witness was, in the first instance, for the trial court to decide. 5
State v. DeHass (1967), 10 Ohio St.2d 230. The court apparently
found David credible, and we find no abuse of discretion in that
determination.
{¶ 13} The first and second assignments of error are overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 14} “THE TRIAL COURT ABUSED ITS DISCRETION BY TRYING TINA
IN ABSENTIA.”
{¶ 15} Tina argues that the court’s decision to proceed with
the February 11, 2008 hearing without her presence or participation
was “the equivalent of a criminal court trying a defendant in
absentia, against which the U.S. Constitution guarantees a
protection.” Tina cites In re Contemnor Caron (2000), 110 Ohio
Misc. 58, and R.C. 2705.05(C)(1) in support of her contention.
{¶ 16} The constitutional rights which Caron explained are
those guaranteed by the Sixth Amendment to the Constitution of
the United States and Section 10, Article I of the Ohio Constitution
that apply to trials of criminal defendants. The proceedings in
contempt David brought against Tina pursuant to R.C. 2705.031(B)
for failure to pay child support were not criminal, notwithstanding
the jail term the court imposed pursuant to R.C. 2705.05. That
sentence was remedial, in that it was imposed for the purpose of
terminating a continuing contempt: Tina could purge her contempt,
and avoid the jail term, by bringing her child support obligation 6
current. The proceeding that found Tina in contempt was therefore
civil, In re Davis (1991), 77 Ohio App.3d 257, and the rights of
criminal defendants on which Tina relies have no application.
{¶ 17} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 18} “THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
TINA’S MOTION FOR IN-CAMERA REVIEW OF THE C.S.E.A. FILE WHERE THE
MOTION AND AFFIDAVIT SHOWED PROBABLE CAUSE TO BELIEVE THAT ITS
CONTENTS MAY HAVE EXONERATED HER; THE COURT ACKNOWLEDGED PROOF
OF TINA’S DISABILITY AND APPLICATION FOR SOCIAL SECURITY AND EVA
PURDY’S TESTIMONY FURTHER PROVED TINA’S CLAIM.”
{¶ 19} Following its finding of contempt, but before the court
imposed Tina’s sentence, Tina filed a Motion for In Camera Review
(Dkt. 228), asking the court to review the files of the Greene
County Child Support Enforcement Agency in order to consider the
information therein concerning her disability, in relation to the
court’s finding that Tina willfully failed to pay child support.
{¶ 20} Tina does not explain how the contents of the CSEA file
may have exonerated her. In any event, the transcript of the
October 22, 2008 sentencing hearing shows that Tina was permitted
to present the testimony of Eva Purdy, an employee of CSEA,
concerning those matters.
{¶ 21} The fourth assignment of error is overruled. 7
FIFTH ASSIGNMENT OF ERROR
{¶ 22} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
TINA TO INCARCERATION FOR FAILURE TO PAY SUPPORT WHERE TINA WAS
UNABLE TO PROVIDE HERSELF AND HER CHILDREN WITH THE NECESSITIES
OF LIFE, SUCH AS FOOD, CLOTHING AND SHELTER.”
{¶ 23} App.R. 16(A)(7) provides that an appellant shall include
in its brief “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations
to the . . . parts of the record on which appellant relies.”
{¶ 24} Tina’s argument in support of this assignment of error
states, in its entirety: “Evidence and testimony demonstrated
that fact.” Tina’s brief fails to comply with App.R. 16(A)(7),
such that we are unable to determine the error she assigns.’
{¶ 25} The fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
TINA TO INCARCERATION WHERE SUCH A SENTENCE ARE CONTRADICTORY TO
COURT ORDERS ALREADY IN PLACE IN ITS AND ANOTHER JURISDICTION.”
{¶ 27} Tina argues that serving the jail term the court imposed
would interfere with the rights of residential parent and custodian
of a daughter from her union with another man, which she was awarded
in another jurisdiction. Incarceration curtails a subject’s 8
liberty interests and the rights associated with them, including
the party’s exercise of custodial rights to children a court
awarded. If serving her term of incarceration leaves Tina no ready
alternative of her own for her daughter’s care, she may seek the
assistance of the children’s services agency of the child’s county
of residence to arrange for her daughter’s care while Tina is
incarcerated.
{¶ 28} The sixth assignment of error is overruled.
SEVENTH ASSIGNMENT OF ERROR
{¶ 29} “THE TRIAL COURT’S OVERRULING OF TINA’S MOTION FOR RELIEF
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONSTITUTES
AN ABUSE OF DISCRETION.”
{¶ 30} On September 9, 2008, Tina filed a form of application
styled “Motion For Relief From Judgment and Request For A New
Hearing,” Tina argued that she was prejudiced by the court’s finding
of contempt following its February 11, 2008 hearing because
“inaccurate and incomplete information (was) offered by Defendant
Helms . . . regarding Plaintiff’s income and ability to pay, among
other fraudulent allegations.. .” The court subsequently
overruled Tina’s motion.
{¶ 31} Tina argues that the court should have considered her
disabilities and other life difficulties in relation to the charges
in contempt, which alleged that she failed to pay any part of the 9
fifty dollar minimum child support the court had ordered. Tina
failed to appear at the February 11, 2008 hearing, at which she
could have offered evidence on those matters. That failure is
chargeable to Tina, to the extent that she was prejudiced as a
result. We are not persuaded that the trial court abused its
discretion in denying Tina’s motion for relief from the judgment
finding her in contempt.
{¶ 32} Tina also argues that the court’s reliance on inaccurate
and incomplete information David offered caused the court to abuse
its discretion when the court increased Tina’s child support
obligation to $341.91 per month. The transcript of the February
11, 2008 hearing reveals that the court relied on two articles
of evidence David offered.
{¶ 33} In his testimony at the February 11, 2008 hearing, David
acknowledged as correct his attorney’s suggestion that during the
past year Tina has “been filing things against you . . . in various
courts.” David stated that Tina “says she’s poverty-stricken.
That’s all I know. I don’t know that for certain.” (Tr. 8).
{¶ 34} His counsel then asked David whether a document she
showed him was “an affidavit of income filed by Tina Pauer in one
of those cases against her ex-husband.” David replied: “Yes.
It certainly appears to be.” David also acknowledged counsel’s
suggestion that the document bears the file-stamped date of 10
February 21, 2006, and states that Tina is employed and earns
$29,000 per year as a freelance writer. (Tr. 9-10). However,
David denied any personal knowledge of Tina’s income. (Tr. 10).
The document David was shown was not introduced in evidence and
is not a part of the record before us.
{¶ 35} The court reminded counsel that Tina had filed an
affidavit of income and expenses with the court dated July 25,
2007. The court noted that the affidavit states Tina is
unemployed, “although seeking, apparently Social Security
Disability, although she had $643 a month rejected award amount.”
The court added that Tina’s affidavit “indicate(s) she has $705
of housing expense and another $260 to $270 in monthly expenses,
but no indication of where she covers them from.” (Tr. 12).
{¶ 36} The other article of evidence on which the court relied
was evidence proffered by David’s counsel purporting to be “Tina
Pauer-Helms-Musgrove’s MySpace account” (Tr. 12), in the form of
a video counsel called up on her computer. David identified the
information presented therein concerning Tina’s job experience
as “what she used to espouse.” (Id.) Counsel also pointed out
that the account states that Tina’s income is “less than $30,000,”
a figure which David agreed is consistent with the income of $29,000
in Tina’s 2007 affidavit. (Tr. 14).
{¶ 37} The trial court found that Tina had an income of $30,000 11
per year, and that she should be paying $400 per month in child
support. (Tr. 37). We find that the trial court abused its
discretion in relying on the two articles of evidence David offered
to reach that result.
{¶ 38} Evid.R. 901 states:
{¶ 39} “The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims.”
{¶ 40} “Authentication and identification are terms which apply
to the process of laying a foundation for the admission of such
nontestimonial evidence as documents and objects.”
Weissenberger’s Ohio Evidence Treatise (2010 Ed.) §901.1.
Otherwise, such evidence is hearsay. Id. Professor
Weissenberger points out that the requirement is actually a rule
of relevance connecting the evidence offered to the facts of the
case. “For example, a writing purportedly signed by a party to
an action is of no relevance and consequently of no significance
to the case unless evidence is offered that it was actually
authorized or signed by that person.” Id.
{¶ 41} Evid.R. 901(B) sets out a number of illustrative
“examples of authentication or identification conforming with the
requirements” of the rule. The most commonly employed is at 12
Evid.R. 901(B)(1): “Testimony of a witness with knowledge.
Testimony that a matter is what it is claimed to be.” Evid.R.
901(B)(1) provides that “any competent witness who has knowledge
that a matter is what its proponent claims may testify to such
pertinent facts, thereby establishing, in whole or in part, the
foundation for identification.” Weissenberger §901.2.
Conclusive evidence is not required, but the witness’s testimony
must be sufficient to satisfy the requirement of Evid.R. 602 that
“[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” Id.
{¶ 42} When asked whether the affidavit he was shown was one
that Tina had filed in an action in Montgomery County “against
her ex-husband,” David replied: “yes, it certainly appears to be.”
David’s acknowledgment of what the affidavit appears on its face
to be, in response to counsel’s suggestion, is insufficient to
demonstrate his personal knowledge of the matter. Evid.R. 602.
Perhaps he was the “ex-husband” named in the Montgomery County
action, 2 but that was not made clear. Greater specificity is
necessary to establish personal knowledge.
{¶ 43} The second article of evidence on which the court relied
was the evidence of Tina’s MySpace account that David’s counsel
2 Tina was also formerly married to Shawn Musgrove. 13
proffered, which demonstrates that Tina therein claimed an annual
income of $29,000. Such Internet evidence may be authenticated
per Evid.R. 901(B)(10) when it satisfies an exception to the rule
against hearsay, Evid.R. 802. Hess v. Ridel-Hess, 153 Ohio App.3d
337, 2003-Ohio-3912, ¶25. In Hess, the court relied on Evid.R.
803(17), which excludes from the rule against hearsay “[m]arket
quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by
persons in particular occupations,” to admit evidence from the
National Automobile Dealer Association (“NADA”) concerning the
value of a vehicle in a divorce action.
{¶ 44} The only exception to the rule against hearsay that might
apply to Tina’s statement on her MySpace account that she earns
$29,000 per year is Evid.R. 804(B)(3). The rule permits admission
of an out-of-court statement against the unavailable declarant’s
interest. Traditionally, such statements had to be found to be
contrary to the declarant’s pecuniary interest when they were made.
Application of the rule has since been relaxed, especially with
respect to money matters, but the declaration must still be, in
its substance, adverse to the unavailable declarant’s personal
interest. Weissenberger, §804.36.
{¶ 45} Tina’s statement on her MySpace account that she earns
$29,000 per year may be used in a way adverse to her interest, 14
as the court used it here to increase Tina’s spousal support
obligation, but as a declaration it is not adverse to her interest
because it is not an assertion of fact which is by its nature
contrary to her interest. Therefore, the Evid.R. 804(3) exception
would not apply. We are aware of no other hearsay exception that
would apply.
{¶ 46} As against those two articles of evidence, the court
had before it an affidavit Tina filed in the action before the
court on July 25, 2007. (Dkt. 132). The court acknowledged that
affidavit, which reports monthly expenses of $270 and a “projected”
monthly income of $643. It appears that the projected income was
a Social Security benefit for which Tina had then applied. The
affidavit’s date is subsequent to that of the document David was
shown indicating a $29,000 monthly income for Tina. The MySpace
account was presumably current when it was created, but when that
was done is not indicated.
{¶ 47} The trial court abused its discretion when it imposed
a monthly child support obligation for Tina of $341, based on the
court’s finding on February 11, 2008, that Tina has an annual income
of $30,000. That portion of the domestic relations court’s March
26, 2008 order will be reversed.
{¶ 48} The seventh assignment of error is sustained, in part.
Case No. 2009CA76 15
{¶ 49} While Tina’s appeal in Case No. 2008CA96 was pending,
Tina filed three motions on February 24, 2009, asking the court
to reinstate her parenting time, to show cause why David should
not be found in contempt, and to modify her child support
obligation. Following several continuances, the motions were
set for hearing on September 21, 2009. Tina moved for another
continuance. The court denied the requested continuance and, when
Tina failed to appear at the hearing, dismissed Tina’s pending
motions pursuant to Civ.R. 41(B)(1) for failure to prosecute.
Tina filed a notice of appeal from the court’s order of September
28, 2009. The appeal was docketed as Case No. 2009CA76.
{¶ 50} Tina filed two briefs in Case No. 2009CA76, one on March
1, 2010 and another on July 26, 2010. Each brief sets out three
assignments of error for our review. In each, Tina complains that
the domestic relations court abused its discretion when it
dismissed Tina’s three motions for Tina’s failure to prosecute.
{¶ 51} The court cited Civ.R. 41(B)(1) as a basis for dismissing
Tina’s motions. Civ.R. 41(B)(1) states:
{¶ 52} “Failure to prosecute. Where the plaintiff fails to
prosecute, or comply with these rules or any court order, the court
upon motion of a defendant or on its own motion may, after notice
to the plaintiff’s counsel dismiss an action or claim.”
{¶ 53} A dismissal for failure to prosecute operates as an 16
adjudication on the merits unless the court, in its order of
dismissal, otherwise specifies. Westlake v. Rice (1995), 100 Ohio
App.3d 438. The purpose of requiring notice is to provide the
party in default the opportunity to explain why the case should
not be dismissed with prejudice. Logsdon v. Nichols, 72 Ohio St.3d
124, 1995-Ohio-225. Therefore, notice of a possible dismissal
must be given to the affected party prior to a Civ.R. 41(B)
dismissal. Perotti v. Ferguson (1983), 7 Ohio St.3d 1.
{¶ 54} Written formal notice is not necessary for compliance
with Civ.R. 41(B)(1), but the court must provide sufficient notice
to allow the plaintiff an opportunity to comply with a court order
or explain why the plaintiff has not proceeded to litigate the
case. Carr v. Green (1992), 78 Ohio App.3d 487. Notice of a trial
date, alone, does not satisfy the notice requirement. Id.
However, dismissal for failure to prosecute when the plaintiff
fails to appear at a hearing without explanation is not an abuse
of discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89.
{¶ 55} The court made the following statement at the September
21, 2009 hearing:
{¶ 56} “The Court: Alright we’re on the record for Case Number
2004DR178, originally Tina Pauer-Helms verses David Lee Helms.
The matter before us today is scheduled for a hearing on the Motion
to Reinstate Plaintiff’s Parenting Time filed on February 24th, 17
09, Show Cause Motion filed by the Plaintiff on February 24th, 09
and the Motion to Modify Child Support filed on February 24th of
09. The matter was set for 1:30, it’s now 1:39 and the Defendant
and his attorney are present. The Plaintiff has chosen not to
show up.
{¶ 57} “She sent in for the record motion to continue this matter
today, which I have not yet caused to be file-stamped but I will.
But I also want the record to reflect that I informed Ms. Musgrove,
I guess she is going by now, I was not granting that and she should
be here. At which time she attempted to fax some additional
information with some sort of medical excuse not be here. And
my staff once again told her that she needed to be here. And the
medical thing that she sent was some sort of statement from Urgent
Care dated yesterday that indicated ‘please call your family doctor
for a follow up visit.’ And so, I’m prepared to dismiss all of
the motions that the Plaintiff has filed and at the same time I
believe that Ms. Musgrove has some time in jail she’s supposed
to be spending.” (Tr., pp 2-3).
{¶ 58} The order from which this appeal was taken, in which
the court dismissed the motions Tina filed, was journalized on
September 28, 2009. The order indicates that on September 15,
2009, Tina requested a continuance because one of her witnesses
would be unavailable on the hearing date. When the court denied 18
that request, because the alternative of a testimonial deposition
was available, Tina argued that health problems prevented her
appearance. The court rejected those grounds, citing supporting
documentation merely showing that an appointment with her doctor
had been recommended to Tina. The court concluded:
{¶ 59} “Upon being informed by the Court staff that the hearing
would go forward as scheduled at 1:30 p.m. on Monday, September
21, 2009 the Plaintiff then attempted an (sic) new tactic to delay
the hearing by faxing to the Court a hand written statement that
she now had a medical appointment she needed to be at. The
supporting document (copy attached) was simply a report that
indicated she should follow up her visit to St. E’s Urgent Care.
The Plaintiff failed to show any evidence that she in fact had
any follow up appointment with her family doctor. Both the
plaintiff and Defendant had been granted a previous request to
continue the case.
{¶ 60} “The Court finds this was an attempt by the Plaintiff
to delay the proceedings and that the Defendant was entitled to
have the matter heard as he continues to incur attorney fees and
probably time off his work to attend the hearings. The Plaintiff
was once again informed the hearing would go forward and she needed
to be in Court to prosecute her motions.
{¶ 61} “Therefore the Court hereby denies the request to 19
continue the case. The Court further orders all of the Plaintiff’s
motions filed February 24, 2009 are dismissed pursuant to Civ.R.
41(B)(1) for the failure of the Plaintiff to appear and go forward
an (sic) present her case.” (Dkt. 294).
{¶ 62} Tina’s failure to appear was not without explanation.
She had put reasons of health before the court in her motion for
a continuance. The court rejected those reasons, finding the
grounds Tina submitted were insufficient to justify the continuance
she requested, which the court found to be “an attempt by the
Plaintiff to delay the hearings.” (Dkt. 294). We cannot conclude
that the court abused its discretion in so finding.
{¶ 63} However, the court could also order a dismissal pursuant
to Civ.R. 41(B)(1) for Tina’s resulting failure to prosecute her
motions only after prior notice to Tina of the court’s intention
to do that, also allowing Tina sufficient time to explain her
reasons or correct her failure. The court’s statement that its
staff had “told [Tina] she needed to be here” does not demonstrate
Tina was notified that her failure to appear could result in
dismissal of her motions. An examination of the record fails to
demonstrate that any of the court’s orders scheduling a hearing
on Tina’s motions contained any form of warning that her motions
could be dismissed should Tina fail to appear. The court abused
its discretion in dismissing Tina’s motions, absent that prior 20
notice.
{¶ 64} The three assignments of error in the brief Tina filed
on March 1, 2010, and the first, second, and third assignments
of error in the brief Tina filed on July 26, 2010, are sustained.
{¶ 65} The brief Tina filed on July 26, 2010, contains a fourth
assignment of error, which states:
{¶ 66} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING
ADDITIONAL REQUIREMENTS ON TINA BEFORE ACCEPTING ANY FURTHER
PLEADINGS FOLLOWING THE SEPTEMBER 21, 2009 HEARING.”
{¶ 67} The order from which the appeal in Case No. 2009CA76
was taken prohibits Tina from filing additional motions or
pleadings unless she first pays any remaining court costs due and
owing by her in the action. Tina argues that the court’s order
unreasonably limits her constitutional right of access to the
courts.
{¶ 68} Article I, §16 of the Ohio Constitution states: “All
courts shall be open, and every person, for an injury done hin
in his land, goods, person, or reputation, shall have remedy by
due course of law and shall have justice administered without denial
or delay.”
{¶ 69} Having sustained the prior assignments of error, we will
reverse and vacate the judgment from which the appeal was taken,
including the court’s order concerning Tina’s obligation to pay 21
court costs. We are unaware of any provision in the law or rules
of procedure that authorizes a court to prohibit a party from filing
motions in an action until obligations to pay costs that have been
imposed on the party are satisfied.
{¶ 70} R.C. 2303.08 authorizes the clerk of courts to “refuse
to accept for filing any pleading or paper submitted for filing
by a person who has been found to be a vexatious litigator under
section 2323.52 of the Revised Code and who has failed to obtain
leave to proceed under that section.” The record does not reflect
that the domestic relations court made a finding pursuant to R.C.
2323.52. The court may not impose a like limitation as a method
of collecting unpaid court costs.
{¶ 71} The fourth assignment of error is sustained.
Conclusion
{¶ 72} The domestic relations court’s order of March 26, 2008,
is Reversed, to the extent that it increased Tina’s child support
obligation to $341 per month from fifty dollars per month, but
is Affirmed with respect to the finding of contempt made therein
for Tina’s failure to comply with that prior support obligation.
The court’s order of November 12, 2008, imposing a sentence upon
that finding of contempt is likewise Affirmed.
{¶ 73} The domestic relations court’s order of September 28,
2009, dismissing the three motions Tina filed, is also Reversed. 22
The case is remanded to the domestic relations court for further
proceedings, consistent with this opinion.
FAIN, J. And DONOVAN, J., concur.
Copies mailed to:
Tina M. Musgrove Anne Catherine Harvey, Esq. Hon. Steven L. Hurley