S.E.J. v. C.S.J.

Ohio Court of Appeals

S.E.J. v. C.S.J.

2019 Ohio 3095

CourtOhio Court of Appeals

DecidedAugust 1, 2019

Docket107576

StatusPublished

This text of 2019 Ohio 3095 (S.E.J. v. C.S.J.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

S.E.J. v. C.S.J., 2019 Ohio 3095 (Ohio Ct. App. 2019).

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Opinion

[Cite as S.E.J. v. C.S.J., 2019-Ohio-3095.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

S.E.J., :

Plaintiff-Appellant, : No. 107576 v. :

C.S.J., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 1, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. SU-17719503

Appearances:

S.E.J., pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Gabriel Rivera and Steven Ritz, Assistant Prosecuting Attorneys, for appellee.

PATRICIA ANN BLACKMON, P.J.:

Appellant S.E.J. appeals the juvenile court’s child support order of

$143.90 per month for his son, S.J. (d.o.b. February 26, 2009). Appellant argues

that the court derived the support order after erroneously imputing to him yearly income of $8,476, representing 20 hours of minimum wage employment per week.

Appellant assigns three errors for our review:

I. The trial court erred and abused its discretion [by proceeding] with trial after appellant established for the record the appellee * * * defaulted by failing to timely answer the admissions as required by Civ.R. 36(C).

II. The trial court erred and abused its discretion when it failed to acknowledge appellant’s disability status. R.C. 3119.01(C)[.]

III. The trial court erred and abused its discretion when failing to observe the appellant’s disability funds by miscalculating the appellant’s funds. R.C. 3119.05.

Having reviewed the record and the controlling law, we affirm the

decision of the trial court.

The record indicates that appellant and appellee are currently

involved in divorce proceedings, and appellee is the residential parent of S.J. On

December 2, 2017, the Office of Child Support Services (“OCSS”) obtained an

administrative order for child support requiring appellant to pay $320.27 per month

plus two percent for processing. It is undisputed that appellant was unemployed at

the time of the order and appellee earns approximately $37,000 per year. In

deriving appellant’s support order, the OCSS considered his 2017 receipt of $1,359

from workers’ compensation and also imputed yearly income to him in the amount

of $12,714, representing minimum wage work for 30 hours per week. Appellant filed

objections to the administrative order and propounded extensive discovery to

appellee and to the OCSS. On June 7, 2018, the court held a hearing on appellant’s objections to

the administrative support order. Appellant maintained that admissions he

propounded to appellee should be deemed admitted for failure to timely respond,

and that he should be awarded summary judgment. He also argued that the

administrative support order was erroneous in light of his disability.

The evidence presented to the court with regard to appellant’s

requests for admissions indicates that appellant’s first set of discovery was sent to

appellee on March 7, 2018. On April 4, 2018, appellant filed a motion to deem the

first set of admissions admitted. Accounting for mailing times, the court determined

that appellee’s responses were not due at the point appellant filed his motion to

deem the matters admitted.

The court also noted that appellant’s second set of discovery was

propounded to appellee on May 5, 2018. On May 11, 2018, appellant filed a motion

to deem the second set of admissions admitted. Appellee informed the court that

she sent discovery responses to appellant by certified mail in April 2018, but on June

1, 2018, her responses were returned with the post office mark “refused.” Appellee

gave additional copies of her discovery responses to appellant in open court and the

court took a brief recess in order for appellant to review this information. After this

recess, the court denied appellant’s motions to deem the matters set forth in the

requests for admissions admitted.

The evidence also indicated that appellant attempted to propound

discovery and requests for admissions to OCSS on March 7, 2018. However, the discovery requests were never served. Appellant resubmitted the discovery requests

on April 24, 2018. On May 24, 2018, appellant filed a motion to deem the second

set of admissions admitted, but the court determined that the motion was never

served on OCSS. The court also noted that the discovery requests improperly sought

information directly from and pertaining to the assistant prosecuting attorney. The

court denied all of appellant’s motions to deem matters admitted.

Turning to the merits of the administrative support order, the court

noted that appellant was injured at work in 2011, and filed three claims for

compensation. The 2011 claim was allowed for a finger wound but appellant was

cleared to return to work within the year. Approximately five months later,

appellant filed a second claim for a testicle injury. In 2016, he filed the third claim

for depressive disorder. Appellant was cleared to return to work in August 2017. He

then drove for Uber for two months in 2017 and also helped take care of S.J.

The court concluded that appellant is voluntarily underemployed,

and it imputed income to him. However, the court reduced the imputed work hours

from 30 per week to 20 per week, thereby reducing the imputed yearly income of

the administrative support order from $12,714 to $8,476. The court likewise

reduced appellant’s monthly support obligation to $143.90 per month plus two

percent processing.

Request for Admissions

In the first assigned error, appellant argues that the trial court erred

in denying his motion to deem matters admitted. Civ.R. 36(B) provides that ‘[a]ny matter admitted under this rule is

conclusively established unless the court on motion permits withdrawal or

amendment of the admission.”

Pursuant to the express language of Civ.R. 36(A), requests for

admissions are “‘self-executing; if there is no response to a request or an admission,

the matter is admitted. Unlike other discovery matters, the admission is made

automatically and requires no further action by the party requesting the

admissions.’” Smallwood v. Shiflet, 8th Dist. Cuyahoga No. 103853, 2016-Ohio-

7887, ¶ 18, quoting State v. Cordell, 10th Dist. Franklin No. 08AP-361, 2008-Ohio-

6124, ¶ 10. Thus, once a party fails to timely respond to the requests for admissions,

the defaulted admissions become fact, and a motion seeking confirmation of those

admissions is unnecessary. Smallwood at id., citing Cordell at id.

However, the requests for discovery must be properly served. See

Civ.R. 5. Further, where the discovery requests are sent by mail, an additional three

days is added to the 28-day deadline. See Civ.R. 6(E); Cleveland Trust Co. v. Willis,

20 Ohio St.3d 66, 485 N.E.2d 1052 (1985).

The record in this case indicates that appellee responded to the

request for admissions in April and that appellant refused to accept certified mail

service of her discovery responses. The record also indicates that OCSS was not

properly served with the first set of discovery. The second set of OCSS discovery

impermissibly sought information directly from and pertaining to the assistant

prosecuting attorney. In accordance with the foregoing, the first assigned error lacks merit.

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