Stanley v. Parker

2021 Ohio 1701

Opinion

[Cite as Stanley v. Parker, 2021-Ohio-1701.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

KIMBERLY SUE STANLEY, et al. JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiffs-Appellees Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. CT2020-0050 CLARENCE PARKER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. JV000033989

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 17, 2021

APPEARANCES:

For Plaintiff-Appellee Stanley For Defendant-Appellant

KIMBERLY S. STANLEY, PRO SE CLARENCE PARKER, PRO SE 3585 Gorsuch Road, Apt 1-B 584 Glade Park Loop Nashport, Ohio 43830 Montgomery, Alabama 36109 Muskingum County, Case No. CT2020-0050 2

Wise, J.

{¶1} Defendant-Appellant Clarence Parker appeals the September 24, 2020,

decision of the Muskingum County Court of Common Pleas, Domestic Relations Division,

approving and adopting the Magistrate’s Decision.

{¶2} Plaintiff-Appellee Kimberly Sue Stanley has not filed a brief in this matter.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On November 15, 1994, Appellee Kimberly Sue Stanley and the Muskingum

County Child Support Enforcement Agency (MCCSEA) filed a Complaint to Establish the

Father-Child Relationship in the Muskingum County Court of Common Pleas, Juvenile

Division, naming Clarence Parker as the natural father of Brodrick (DOB 07/13/1989) and

Terrence (DOB 11/25/1993).

{¶5} On November 21, 1994, Clarence Parker was adjudicated as the father of

the two minor children. No order for child support was issued.

{¶6} On July 24, 1996, Appellee Kimberly Sue Stanley and MCCSEA filed a

second Complaint to Establish the Father-Child Relationship in the Muskingum County

Court of Common Pleas, Juvenile Division, with regard to Christopher (04/24/1996).

{¶7} On September 4, 1996, a hearing was held on Appellee’s motion.

{¶8} By Judgment Entry filed October 8, 1996, the trial court adjudicated Mr.

Parker as the father of Kimberly Stanley's child Christopher (DOB 04/24/1996). In

addition, the trial court ordered Mr. Parker to pay Kimberly Stanley $123.71 per month

per child for the support of the three children, beginning May 1, 1996. The trial court also

granted the Ohio Department of Human Services judgment against Mr. Parker in the Muskingum County, Case No. CT2020-0050 3

amount of $8,103.07 for confinement costs1. The court ordered Mr. Parker to pay $52.00

per month toward the judgment for confinement costs and accumulated child support

arrearages.

{¶9} By Agreed Entry filed 04/14/1999, the trial court found Mr. Parker in

contempt for failure to pay child support as ordered. A thirty (30) day jail sentence was

suspended on the condition that Mr. Parker purge his contempt by paying not less than

$107.50 per month toward arrearages in the approximate amount of $12,890.43 as of

04/08/1999.

{¶10} By Agreed Entry filed April 21, 1999, the trial court found that Kimberly

Stanley waived all child support arrearages owed to her by Mr. Parker through

04/09/1999, being the amount of $6,156.80. The court found that Kimberly Stanley could

not waive arrearages that had already been assigned to the state or the judgment for

confinement costs. The trial court did not terminate or modify the current child support

obligation of $123.71 per month per child or the purge condition of $107.50 per month,

plus processing charge.

{¶11} In May, 2000, the trial court imposed the previously suspended jail sentence

because Mr. Parker failed to comply with the purge conditions.

{¶12} On August 30, 2007, the trial court approved and adopted the Notice of

Child Support Termination Investigation of 07/13/2007, indicating that Mr. Parker's

1 R.C. §3111.13(C) Except as otherwise provided in this section, the judgment or order may contain, at the request of a party and if not prohibited under federal law, any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the payment of all or any part of the reasonable expenses of the mother's pregnancy and confinement, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. Muskingum County, Case No. CT2020-0050 4

obligation to pay child support for Brodrick terminated on 07/13/2007, and that he owed

child support arrearages of $49,044.58 and processing charges of $954.71 as of

05/31/2007.

{¶13} On October 23, 2009, the trial court approved and adopted the Notice of

Child Support Termination Investigation indicating that Mr. Parker's obligation to pay child

support for Christopher terminated on 09/01/2009, because the child was placed in Mr.

Parker's custody as of that date, and that he owed $51,599.57 in arrears and/or other

balance as of 08/31/2009.

{¶14} On December 16, 2009, neither party having requested a hearing to contest

the Findings and Recommendations for modification of child support issued on

11/24/2009, the court adopted those Findings and Recommendations. The trial court

reduced Mr. Parker's current support obligation for Terrence to $6.16 per month when

private health insurance is provided, or $88.88 per month, plus cash medical support of

$64.58 per month, when private health insurance is not provided, plus processing

charges. The trial court ordered Clarence Parker to pay $354.92 per month, plus

processing charges, toward child support arrearages of $51,153.16, plus processing

charge, as of 11/24/2009.

{¶15} On May 7, 2012, the Child Support Division (CSD) issued Findings and a

Recommendation to Terminate the Court Child Support Order relating to Terrence. CSD

found that Terrence turned 18 years of age on November 25, 2011, and graduated from

Tri-Valley High School on May 25, 2012. Based on those findings, CSD recommended

that Mr. Parker's current child support obligation for Terrence be terminated as of May

12, 2012. In addition, CSD found that Mr. Parker owed $44,309.30 in arrears and/or other Muskingum County, Case No. CT2020-0050 5

balances as of April 30, 2012. CSD recommended that Mr. Parker be ordered to pay

$361.08 per month toward the arrears and/or other balances.

{¶16} By motion filed July 16, 2012, Mr. Parker timely objected to the

administrative child support termination decision issued by the Muskingum County Job

and Family Services, Child Support Division on June 19, 2012.

{¶17} On August 14, 2012, a hearing on the motion commenced and was later

completed on October 9, 2012. Kimberly Stanley and Clarence Parker appeared for

hearing without counsel.

{¶18} In his motion, Mr. Parker asserted that CSD erred in finding that he owed

$44,309.30 in arrears and/or other balances (child support, confinement costs, and

processing charges) as of April 30, 2012.

{¶19} The trial court found that when it adopted the September 18, 2009, CSD

Notice of Child Support Termination Investigation, it made a finding on 10/23/2009 that

Clarence Parker owed arrears and/or other balances of $51,599.57 as of 08/31/2009, and

that no appeal was taken from that finding. The court found that as result, both parties

were legally bound by that finding and are barred by the doctrine of res judicata from

presenting any evidence or argument to challenge that 2009 arrearage finding.

{¶20} At the same hearing, Mr. Parker asserted that he should be given credit

against his arrearage balance for the summer months during which the children visited

him during their minority. The court found this argument to be without merit because Mr.

Parker's obligation to pay child support to Kimberly Stanley was never suspended or

otherwise modified during any parenting time periods. The court found that it could not

retroactively modify the amount of Mr. Parker's arrearages based upon such a claim. Muskingum County, Case No. CT2020-0050 6

However, at the hearing on 10/09/2012, Kimberly Stanley knowingly and voluntarily

waived the sum of $2,226.78 in unassigned child support arrearages ($371.13 x 6

months) based upon the amount of extended parenting time Mr. Parker exercised with

the children during their minority. Therefore, the court ordered that CSD adjust its records

to reflect the waiver of arrearages of $2,226.78 in unassigned child support owed to her

in this case.

{¶21} Mr. Parker also asserted that he should receive some sort of credit against

his support arrearages because Kimberly Stanley failed to permit him to claim the children

as dependents on his taxes, thereby reducing the amount of his tax refunds that CSD

intercepted. The court found that in its original child support order of 10/07/1996, the court

allocated to Mr. Parker the right to claim all three children as dependents for purposes of

local, state, and federal income taxation.

{¶22} The court found that if Mr. Parker had or has a valid claim against Kimberly

Stanley for violating the court order relating to the dependency exemptions, he has a right

to file the appropriate action to enforce the court order. The court went on to find, however,

that the amount of Mr. Parker's child support obligation was never conditioned on

Kimberly Stanley's compliance with the order allocating dependency exemptions. The

court found that he had not filed a motion charging her with contempt for violating the

order allocating dependency exemptions; nor had he filed a motion requesting a money

judgment against her for this alleged violation. Therefore, any claim that Mr. Parker may

or may not have against Kimberly Stanley for allegedly violating the order allocating

dependency exemptions was outside the scope of this proceeding and without merit. Muskingum County, Case No. CT2020-0050 7

{¶23} Mr. Parker also asserted that he requested a modification of his child

support obligation to Kimberly Stanley in 1997, 1999, and 2009, but that no action was

ever taken on his requests. The court found that the Clerk's file revealed no motion from

either party requesting a modification of child support at any time. The file does contain a

letter from Mr. Parker, dated 12/21/2009, indicating that he was aware that CSD had

informed him that his request for a court hearing to contest CSD's recommended

modification was not submitted in a timely manner; however, the court had already

adopted CSD's findings and recommendations on 12/16/2009 because neither party had

requested a court hearing within the statutorily prescribed objection period. Thus, nothing

in the Clerk's file supports Clarence Parker's assertion that the Court failed to act on any

written motion requesting modification of the child support order in this case. Therefore,

this argument is without merit.

{¶24} At said hearing, Mr. Parker also asserted that he should not be required to

pay the judgment for confinement costs because he was indigent at the time the judgment

was entered against him. The trial court found that such argument could and should have

been raised in a direct appeal of the judgment, and that it could not be used to collaterally

attack the judgment sixteen (16) years after it was granted.

{¶25} Clarence Parker further asserted that CSD should not be entitled to collect

processing charge arrears from him for the period of time during which he has been

making child support payments because CSD had failed to deduct its processing charge

from his payments. In response, the court found Ohio Revised Code and the Ohio

Administrative Code govern the hierarchy under which monies collected by the CSD must

be applied toward support obligations. With the exception of tax intercepts, CSD is not Muskingum County, Case No. CT2020-0050 8

permitted to apply monies collected from Mr. Parker toward arrears owed to the State,

including processing charges, until the obligation owed to Kimberly Stanley has been paid

in full. See R.C. §3121.58. The court found that the CSD had been doing exactly what

the law requires and found this argument is without merit.

{¶26} Finally, Clarence Parker asserted that CSD had incorrectly determined the

amount of processing charge he owes. The court found the amount of processing charge

is determined by statute, and that CSD is assessing a processing charge in the

appropriate amount.

{¶27} Finally, the court ordered that Clarence Parker shall pay not less than

$361.08 per month, plus processing charge, toward child support arrears, confinement

costs, and processing charge arrears, until all balances are paid in full. CSD shall issue

the appropriate withholding notice in that amount.

{¶28} On September 4, 2019, Appellant Clarence Parker filed a motion with the

Muskingum County Common Pleas Court, Domestic Relations Division, requesting that

the income withholding order issued to his employer by the Child Support Division be

immediately rescinded and that “all funds, payments, garnishments and all monies

allocated or spent in reference to or pursuant to this case since 2012” be returned.

{¶29} On August 5, 2020, a hearing was held on Appellant’s motion before a

Magistrate. Present at the hearing were Appellant, who appeared without counsel, and

the attorney for the Muskingum County Department of Job and Family Services, Child

Support Division. Kimberly Stanley did not appear for the hearing.

{¶30} At the hearing, Appellant amended his motion to add a request that the court

waive all arrearages in this case. Muskingum County, Case No. CT2020-0050 9

{¶31} On September 24, 2020, the Magistrate filed his Decision wherein he

summarized the prior proceedings and decisions which had taken place in this case from

October, 2009, through November, 2012. The Magistrate also included tables showing

the amount of child support due for each month beginning with September, 2009, and

ending with May, 2012. The court then prepared another table showing the processing

charges for that same time period. Next, the court included a table showing the payments

received by the Child Support Division from September 1, 2009, through July 31, 2020.

The court found that as of July 31, 2020, Appellant owed child support arrearages of

$12,214.28, processing charges of $2,020.21, and confinement costs of $8,103.07, for a

total balance of $22,337.56.

{¶32} The court further found that on November, 2012, the court ordered

Appellant to make monthly payments of $361.08, plus processing charges, toward the

arrearage balances he owed.

{¶33} The court then found that Appellant had produced no evidence showing that

the court’s order requiring him to make said monthly payments should be changed. The

court further found that R.C. §3121.02 requires that any arrearages be collected by

withholding or deduction from the obligor’s income.

{¶34} Based on the foregoing, the court dismissed Appellant’s motion and

amended motion.

{¶35} By Judgment Entry filed September 24, 2020, the trial court approved and

adopted the decision of the Magistrate and entered it as the court’s judgment.

{¶36} Appellant now appeals, raising the following assignment of error for review: Muskingum County, Case No. CT2020-0050 10

ASSIGNMENT OF ERROR

{¶37} “I. THE COURT WRONGLY USES IT'S [SIC] FINDINGS ON OCTOBER,

2009 AS IT'S [SIC] STARTING POINT IN CALCULATING ARREARS OWED. THIS

ORDER HAS BEEN IN EFFECT SINCE 1996.

THE COURT ERRS BY DISMISSING AND FAILING TO RULE ON MOTIONS

FILED WITH IT'S [SIC] COURT.

THE COURT ERRS WHEN IT CHARGES MR. PARKER WITH CONFINEMENT

COST IT SEEKS IN THE AMOUNT OF $8,103.07. THE COURT HAS NEVER DEFINED

"CONFINEMENT” AS USED IN THIS CASE.

THE COURT ERRED IN 2012 BY NOT AWARDING MR. PARKER FINANCIAL

SUPPORT FROM THE PLAINTIFF FOR THE MINOR CHILD IN HIS CUSTODY.

THE COURT ALSO ERRED WHEN IT DID NOT DISMISS THIS ORDER

WITHOUT PREJUDICE WHEN IT WAS MADE AWARE OF THE PLAINTIFF’S FAILURE

TO ADHERE TO IT IN 2012.

THE MUSKINGUM COUNTY COURT OF COMMON PLEAS HAS BEEN BIASED

FOR THE PLAINTIFF, IGNORING THE DEFENDANT'S CLAIMS AND ARGUING FOR

THE PLAINTIFF IN ITS DECISIONS.

THE COURT CONTRADICTS THE NORMS OF THE COURT BY RULING IN

FAVOR OF THE PLAINTIFF WHEN THE PLAINTIFF FAILED TO APPEAR IN COURT.

I.

{¶38} Appellant set forth and argued the above-listed assignment of error as a

single assignment of error. Muskingum County, Case No. CT2020-0050 11

{¶39} Initially, we note that Appellant has failed to provide this Court with a

transcript of the August 5, 2020, proceedings, or any of the proceedings in which he is

alleging error occurred.

{¶40} An appellant is required to provide a transcript for appellate review. Knapp

v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Such is

necessary because an appellant shoulders the burden of demonstrating error by

reference to matters within the record. See, State v. Skaggs, 53 Ohio St.2d 162, 163, 372

N.E.2d 1355 (1978).

{¶41} This principle is embodied in App.R. 9(B), which states in relevant part:

If the appellant intends to urge on appeal that a finding or conclusion

is unsupported by the evidence or is contrary to the weight of the evidence,

the appellant shall include in the record a transcript of all evidence relevant

to the findings or conclusion. App.R. 9(B).

{¶42} Where portions of the transcript necessary for the resolution of assigned

errors are omitted from the record, an appellate court has nothing to pass upon. As

appellant cannot demonstrate those errors, the court has no choice but to presume the

validity of the lower court's proceedings. State v. Ridgway, 5th Dist. Stark

No.1998CA00147, 1999 WL 100349 (Feb. 1, 1999), citing Knapp, supra.

{¶43} Under the circumstances, a transcript of the proceedings is necessary for a

complete review of the errors assigned in Appellant's brief since Appellant is challenging

the Magistrate's findings. As Appellant has failed to provide this Court with a transcript,

we must presume regularity of the proceedings below and affirm. Muskingum County, Case No. CT2020-0050 12

{¶44} Additionally, Appellant did not file objections to the Magistrate's Decision in

this case. Civil Rule 53 governs matters referred to magistrates. Civ.R. 53(D) states in

pertinent part:

(3) Magistrate's decision; objections to magistrate's decision.

***

(b) Objections to magistrate's decision

(iv) Waiver of right to assign adoption by court as error on appeal.

Except for a claim of plain error, a party shall not assign as error on appeal

the court's adoption of any factual finding or legal conclusion, whether or

not specifically designated as a finding of fact or conclusion of law under

Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or

conclusion as required by Civ.R. 53(D)(3)(b).

{¶45} In failing to object to the Magistrate's decision, Appellant waived any error.

Civ.R. 53(D)(3)(b)(iv) (stating that “[e]xcept for a claim of plain error, a party shall not

assign as error on appeal the court's adoption of any factual finding or legal conclusion,

whether or not specifically designated as a finding of fact or conclusion of law under Civ.R.

53[D][3][a][ii], unless the party has objected to that finding or conclusion as required by

Civ.R. 53[D][3][b]”).

{¶46} As there is no record, there is likewise no demonstration of plain error in

said record, rendering Appellant's assertions unpersuasive. Muskingum County, Case No. CT2020-0050 13

{¶47} Furthermore, the decisions and calculations Appellant is challenging were

made in 1996, 2009 and 2012. Appellant failed to take issue with these decisions when

they were made.

{¶48} “A valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction * * * that was the subject

matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379,

syllabus.

{¶49} The doctrine of res judicata not only bars all claims that were litigated in a

prior action but also all claims which might have been litigated in that action. In Grava,

the Supreme Court of Ohio reiterated its prior statement of the law made in Natl.

Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62:

* * * “It has long been the law of Ohio that ‘an existing final judgment

or decree between the parties to litigation is conclusive as to all claims

which were or might have been litigated in a first lawsuit’ ”(emphasis sic)

(quoting Rogers v. Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90,

494 N.E.2d 1387, 1388). We also declared that “[t]he doctrine of res judicata

requires a plaintiff to present every ground for relief in the first action, or be

forever barred from asserting it.” Id.

{¶50} Grava, at 382.

{¶51} Because Appellant could have raised his objections in an appeal from the

court’s 1996, 2009 and 2012 decisions, these matters are both improperly before this

Court, raised for the first time on appeal, and such is barred by the doctrine of res judicata. Muskingum County, Case No. CT2020-0050 14

Therefore, we cannot find error with the trial court’s calculations for purposes of

determining Appellant's arrearages amount.

{¶52} Based on the record before us, reviewed under the constraints of Civ.R. 53,

we find no abuse of discretion in the trial court’s decision affirming and adopting the

Magistrate’s Decision dismissing Appellant’s motions.

{¶53} Accordingly, Appellant’s assignment of error is overruled.

{¶54} The judgment of the Muskingum County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Wise, J.

Baldwin, P. J., and

Gwin, J., concur.

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