COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68281, 68985 : DENISE L. KRACHT : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROBERT R. KRACHT : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Civil appeals from the Domestic Relations Division of the Common Pleas Court Case No. D-180514. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: CLARK D. RICE, ESQ. ROBERT R. KRACHT, pro se BERTSCH, MILLICAN & WINSLOW The Galleria & Towers 1280 West Third Street at Erieview Cleveland, Ohio 44113 1301 E. Ninth Street Suite 1200 JAMES R. TANNER, ESQ. Cleveland, Ohio 44114 Assistant Prosecutor Support Enforcement Div. THOMAS L. COLALUCA, ESQ. P.O. Box 93923 JOHNSON, BALAZS AND ANGELO Cleveland, Ohio 44101-5923 3600 Terminal Tower Cleveland, Ohio 44113 - 3 - KARPINSKI, J.: Defendant-appellant, Robert R. Kracht, appeals from the trial court's order finding him in contempt for failure to pay child support. On appeal, defendant raises one assignment of error, which alleges the judgment of the trial court is contrary to the manifest weight of the evidence. For the following reasons, we find no merit to defendant's arguments and affirm the judgment of the trial court. Plaintiff and defendant were divorced by a journal entry dated July 12, 1989. The mother was awarded custody of the three children born during this marriage. Defendant was ordered to pay $290.00 a month in child support. On May 26, 1992, Cuyahoga Support Enforcement Agency ("CSEA") filed a motion to intervene and a motion to show cause why defendant should not be held in contempt for failing to pay child and spousal support. The show cause motion was heard on March 1, 1993. After two days of hearings the referee issued a report which recommended that the trial court hold defendant in contempt. The trial court overruled defendant's objections, and found defendant in contempt of court and $60,097.83 in arrears. Defendant appeals raising one assignment of error. I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT APPROVED THE REFEREES [sic] REPORT AND RECOMMENDATION WHERE THE REPORT AND RECOMMENDATION WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. Under this lone assignment of error, defendant reasserts his eighteen objections to the referee's report. This assignment - 4 - specifically claims that the judgment of the trial court is against the manifest weight of the evidence. It is well-settled that "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." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 78, at 80, quoting C.E.Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The elements of contempt are 1) a lawful order of court to pay support, 2) proper notice given to the alleged contemnor, and 3) a failure to make payment as ordered. Rossen v. Rossen (1964), 2 Ohio App.2d 381. The court in Morford v. Morford 1 (1993), 85 Ohio App.3d 50 at 55, described the burden of proof in a contempt action as follows: 1 The court also noted the difference between civil and criminal contempt as follows; We begin by noting that there is a difference between civil contempt and criminal contempt. Civil contempt is where the sanction is imposed to coerce the contemnor to comply with the court's order, and is established by using the clear and convincing evidence standard. Criminal contempt is where the court imposes a sanction as punishment for a past failure, and, thus, the contemnor is entitled to all the rights afforded to a criminal defendant. [Citations omitted.] In many cases, it is difficult to characterize the contempt as either civil or criminal because of overlapping considerations. For example, in this case, the sanction might be construed as an attempt to get appellant to pay his child support or a punishment by a court which was fed up with appellant's failure to pay support as ordered. We decline to characterize the contempt in this case because the characterization will have no bearing on the outcome of our decision. Morford at 54. - 5 - A prima facie showing of contempt is made when the moving party established the divorce decree and evidence of nonpayment according to its terms. *** The burden then shifts to the defendant to establish any defense he may have for nonpayment. [Citations omitted.] In this case, competent, credible evidence was presented to support a finding of contempt. In the divorce decree journalized on July 12, 1989, defendant was ordered to pay $290.70 per week as child support. Both parties agreed to this amount, as is evidenced by the parties signing the agreement. Therefore, defendant had notice of this order. Evidence was also presented to prove that plaintiff failed to abide by this order. Documentation from CSEA and testimony by a financial clerk at CSEA established that defendant was in arrears $60,097.83. A prima facie case of contempt was established. In attempting to establish a defense to this contempt action, defendant reasserts his eighteen objections to the referee's report. These objections are meritless. In the first objection, defendant argues that the referee's 2 report was not properly served upon him. This argument lacks merit for two reasons. First, defendant, an attorney, represented himself pro se and the referee's report was sent to defendant's address. Defendant cites Swander Ditch Landowners' 2 Service has been a problem throughout the litigation between the parties. In Kracht v. Kracht (Aug. 15, 1991), Cuyahoga App. No. 61101, unreported, this court reversed the trial court's order which granted plaintiff's motion to remove the minor children because the motion was not properly served on the defendant. The court noted that service was made on the defendant's prior employer and not on defendant's known home address. - 6 - Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs. (1990), 51 Ohio St.3d 131, which held that Civ.R. 5(B) requires service be made on the attorney of record instead of the party. Swander Ditch does not support defendant's argument. In Swander Ditch, the court focused on the expertise of the attorney. In the case at bar, defendant, an attorney, is representing himself and service was perfected at defendant's home address. Second, when he timely filed objections to the referee's report, defendant waived any objection regarding service. Chauncey v. Chauncey (Dec. 1, 1994), Cuyahoga App. No. 66197, unreported; Longshore v. White (May 19, 1994) Cuyahoga App. No. 66363, unreported. In the second objection, defendant argues that the referee had no authority to rule on the motion to show cause, because the motion had not been specifically referred to the referee. This argument is meritless because at the time of the referee's hearing Loc.R. 16(C) of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, provided, "The referee shall have power to hear and determine all matters relating to any 3 assigned motion." This rule allowed the referee to hear the matter without a referral from the court. In the third objection, defendant argues that the Motion To Show Cause filed on June 1, 1990, was not properly served upon him. This argument lacks merit because the motion before the court at the contempt hearing was the Motion to Show Cause filed 3 This rule has been deleted from the 1996 Ohio Rules of Court. - 7 - on May 26, 1992. This motion was properly served upon the defendant. Any defect regarding service of the June 1, 1990, motion is irrelevant to the case at bar. In the fourth objection, defendant argues that plaintiff's violation of the visitation order was grounds to modify the child support order. This argument is meritless for two reasons. First, defendant's motion to modify was not before the court. Second, a trial court cannot modify a support obligation for the obligee's failure to comply with a visitation order. Fry v. Fry (1989), 64 Ohio App.3d 519. Therefore, the trial court did not err by not considering any alleged visitation issue. In the fifth objection, defendant alleges the trial court failed to consider his change of economic circumstances when the court found him to be in contempt. On the contrary, the referee specifically considered defendant's current economic situation and found that defendant had the ability to pay. More enlightening to the issue at hand is the fact that the referee further found that "[d]efendant has attempted to be cunning and manipulative throughout this proceeding without success." In the sixth objection defendant argues that CSEA has no standing to initiate contempt proceedings. This argument ignores 4 R.C. 2705.031 , which authorizes CSEA and the prosecuting 4 R.C. 2705.031(B)(1) states as follows: Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support. In Title IV-D cases, the contempt action for failure to pay support also may be initiated by an attorney retained by the party who has the (continued...) - 8 - attorney to bring a contempt action. See also, Anspach v. Anspach (Apr. 27, 1992), Hardin App. No. 6-91-8, unreported. In the seventh objection, defendant vaguely argues that the portion of the divorce decree that covers child support is ambiguous. This portion of the judgment entry, journalized at volume 1509, p. 409, states as follows: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant shall pay to the Plaintiff, through the Cuyahoga Support Enforcement Agency, child support in the amount of Two Hundred Ninety Dollars and Seventy Cents ($290.70), plus poundage, until each such child has (1) [sic] obtained the age of eighteen (18) and completed high school; (2) the death of such child; or (3) the emancipation of such child, whichever event shall first occur. Specifically, defendant argues that this order is ambiguous because it does not state when each child support payment is due. The domestic relations court also journalized, however, the 5 separation agreement, which formed the basis of the judgment entry. In this separation agreement, the parties agreed as follows at volume 1509, p. 419: ITEM TWELVE: CHILD SUPPORT (A) Commencing June 1, 1989, the husband shall pay to the Wife, through the Cuyahoga Support Enforcement Agency, child support in the amount of TWO HUNDRED NINETY AND 70/100 DOLLARS ($290.70) per week, plus poundage, until each such child (1) [sic] has attained the age of eighteen (18) and completed high school (R.C. 3103.03); (2) the death of such child; or (3) the emancipation of such child, whichever event first 4 (...continued) legal claim, the prosecuting attorney, or an attorney of the department of human services or the child support enforcement agency. 5 Moreover, defendant initialed a change in this portion of the separation agreement. - 9 - occurs. Said payments shall be pursuant to a wage order. [Emphasis added.] This portion of the agreement shows unambiguously that defendant agreed to pay $290.00 a week as child support. When the divorce decree is considered in conjunction with the separation agreement, there is nothing ambiguous about defendant's support obligation. It is clear what the exact amount of child support is, to whom the payment is to be made, and how long such support obligation is to continue. In the eighth objection, defendant points out that his check dated June 1, 1992, contained the notation "payment in full," which was negotiated by CSEA. Defendant argues that this negotiation constituted an accord and satisfaction of defendant's child support obligation. "An accord and satisfaction is an agreement to which the requirements of contract law apply; the party asserting the existence of a contract must establish the existence of all elements of a contract by a preponderance of the evidence." Beneficial Ohio, Inc. v. Bolen (June 29, 1995), Franklin App. No. 94APE08-1202, unreported at 6. The affirmative defense of accord and satisfaction is comprised of four elements: (1) the proper subject matter, (2) competent parties, (3) mutual assent or meeting of the minds, and (4) consideration. Shady Acres Nursing Home, Inc. v. Rhodes (1983), 7 Ohio St.3d 7, 8. The second paragraph of the syllabus of Allen v. R.G. Indus. Supply (1993), 66 Ohio St.3d 229, explains two requirements of this defense: - 10 - 2. Two essential safeguards built into the doctrine of accord and satisfaction protect creditors or injured parties from overreaching debtors or tortfeasors: (1) there must be a good-faith dispute about the debt, and (2) the creditor must have reasonable notice that the check is intended to be in full satisfaction of the debt. Because accord and satisfaction is an affirmative defense, the burden of proof is on the proponent of the defense. Springfield Fire & Marine Ins. Co. v. Hull (1894), 51 Ohio St. 270, 278. First, defendant has not established by a preponderance of the evidence that CSEA had the authority to terminate defendant's child support obligation. Second, for an accord and satisfaction the original parties must agree to the modification. In the case at bar, neither the children nor the mother agreed that one check from defendant could satisfy his entire past and future child support obligation. See also Beneficial, supra, where the court held that a bank's negotiation of a $3,000.00 check with the notation "Payoff Of Second Mortgage Loan" did not constitute an accord and satisfaction of a $15,000.00 mortgage. In the ninth objection, defendant argues that the referee abused his discretion by permitting CSEA to introduce additional evidence after the close of its case in chief. This objection lacks merit because a review of the record reveals that no evidence was presented after CSEA closed its case in chief. CSEA opened its case by putting Denise Kracht on the stand March 1, 1993. The court adjourned the case while defendant was cross- examining Denise. The court recommenced on March 2, 1993. After - 11 - defendant finished cross-examining plaintiff, CSEA presented the rest of its case. In the tenth objection, defendant argues that the doctrine of laches bars this action on the basis that CSEA filed the motion to show cause four years after the divorce decree. To claim laches, however, defendant must show unreasonable delay occurred in bringing the action. Kinney v. Matias (1984), 10 Ohio St.3d 72. "Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting the claim." Moreover, "the existence of laches is a question primarily addressed to the discretion of the trial court," Gardner v. Panama Railroad Company (1951), 342 U.S. 29. In the case at bar, defendant has not demonstrated how he has been materially prejudiced by any purported delay. Accordingly, the trial court did not abuse its discretion by rejecting the affirmative defense of laches. In the eleventh objection, defendant argues that when he refused to answer questions on cross-examination the referee found him to be in contempt because he asserted his Fifth Amendment right to be free from self-incrimination. This argument is meritless. The referee noted in the report that "[d]efendant refused to respond to all questions on cross- examination asserting his Fifth Amendment rights." There is - 12 - nothing in the record to show that the referee found defendant in contempt because he asserted his Fifth Amendment rights. He was found in contempt for failing to fulfill his child support obligation. The twelfth and thirteenth objections were not raised in this appeal. In the fourteenth objection defendant argues that the trial court should have considered the wife's income. This argument is meritless. An obligee's income has no relevance to the issue of whether defendant has complied with his court-ordered child support obligation. In the fifteenth objection, defendant argues that the amount ordered to be paid as child support and arrearages will exceed the amount under R.C. 3113.21 and 15 U.S.C. 1673(b). This argument fails for three reasons. First, defendant's support obligations have not been modified. If defendant's change in income warrants a change in support, this issue will be addressed when the trial court rules on his motion to modify. Second, the withholding order is directed at the defendant's employer. The order states in part as follows: 1. Withhold the amount set forth herein; however, under no circumstances shall you withhold a total amount, including all fees, in excess of the amount allowed under Section 303(b) of the Consumer Protection Act, 15 U.S.C. 1673(B); according to this act, the amount withheld is not allowed to exceed: * 50% of the obligors [sic] disposable earning if he/she is supporting a spouse, dependent child or both, other than a party in the support order. *60% of the obligors [sic] disposable earnings if he/she is not supporting someone else. - 13 - * The act also allows an additional 5% to be withheld above the maximum amount permitted if the obligor is twelve (12) or more weeks in arrearage. Even if as a practical matter the amount ordered withheld exceeds that required under the Consumer Protection Act, the employer can withhold only the maximum amount allowed. The federal statute does not affect the validity of the support order. Wears v. Wears (Dec. 20, 1993), Stark App. No. CA9305, unreported. Third, the issue in this appeal is whether the domestic relations court erred when it found defendant in contempt for failing to fulfill his support obligation. Accordingly, defendant's argument concerning the Consumer Protection Act is not well taken. In the sixteenth objection, defendant argues that the referee improperly admitted certain exhibits 3, 4, 5, and 6. This argument is meritless. A referee has power to admit and exclude evidence. Civ.R. 53(C); Conn Constr. Co. v. Dept. of Transp. (1983), 14 Ohio App.3d 90. The referee's evidentiary rulings, moreover, are reviewed under an abuse of discretion standard. In re Armstrong (May 22, 1991), Hamilton App. No. C- 900318, unreported. Exhibit 3 is a compilation of handwritten notes by plaintiff stating defendant's payment history. Even if these notes were hearsay and not properly admitted, there is sufficient evidence to support the referee's finding of contempt, and no prejudice arises from their admission. Sicking v. State Medical Board (1991), 62 Ohio App.3d 387, 395. Exhibit 4 is a computer printout of defendant's payment history. This document was properly admitted. "As official agency records made pursuant - 14 - to law, CSEA records are admissible as evidence, R.C. 2317.42 and Evid.R. 803(8), and, if properly offered and authenticated, can be used to prove the amount that has been paid." Nemes v. Nemes (Dec. 28, 1994) Medina App. No. 2331-M, unreported at 4. (Citations omitted.) Exhibit 6 was excluded by the trial court. In the seventeenth objection defendant argues that CSEA failed to sustain its burden of proof. As stated above, CSEA established a prima facie case for contempt supported by competent credible evidence. Defendant was unable to establish a defense for his nonpayment, and thus the trial court did not err in finding defendant in contempt for failing to fulfill his support obligation. In the eighteenth objection, defendant argues that this action should have properly been brought as a breach of contract claim, because what is at issue is a violation of the parties' separation agreement. Separation agreements that are incorporated into the divorce decree, however, have the same effect as an order of the court. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399. The trial court has authority to enforce its orders through contempt proceedings. Having found the trial court's judgment to be supported by the evidence, and finding no merit to defendant's numerous objections, this court affirms the judgment of the trial court. - 15 - It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Division of the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .