IN THE

SUPREME COURT OF OHIO

IN RE: MARIAH GULLEY

MARLIN GULLEY

and

HAMILTON COUNTY CHILDSUPPORT ENFORCEMENT AGENCY

Plaintiffs-Appellees,

vs.

LOUIS FANTETTI

Defendant-Appellant.

: NO.

On Appeal from the Hamilton CountyCourt of Appeals, First Appellate District

Court of Appeals Case No. C060375

MEMORANDUM IN SUPPORT OF JURISDICTION

Phillip E. Foote (0074238P)Asst. Hamilton Co. Prosecuting Atty.Attorney for Plaintiff/Appellee CSEA230 E. Ninth Street, Suite 4000Cincinnati, OH 45202(513) 946-3285

Stephen C. Crowe (0005960)Attorney for Plaintiff/Appellee Gulley1019 Main StreetMilford, OH 45150(513) 831-8511(513) 241-0500

Michaela M. Stagnaro (0059479)Attorney for Defendant/Appellant906 Main Street, Suite 403Cincinnati, OH 45202(513) 241-0500Fax (513) 241-2555Email: instagnaro(Jfuse.net

TABLE OF CONTENTS

Pa2e#

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND DOES INVOLVEINVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION .. ...................1

Authorities:

Civ.R. 60(B) ... ............. ............ ...................................................1

STATEMENT OF THE CASE AND FACTS .............................................................2

Procedural Posture ........................................................................................................2

Statement of the Facts ...................................................................................................2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ............... ........................8

PROPOSITION OF LAW I: Appellant was denied his constitutionalrights to a full and fair hearing on the Motion for Relief from Judgmentfiled pursuant to Civ.R. 60(B) ........................................................................8

Authorities:

Civ.R. 60(B) ....... ...... .. .. ............... .......................................8,10,11,12Caruso-Ciresi, Inc. v. Lohman (1983), 5 O.St.3d 64 ......................8GTE Automotive Electric, Inc. v. Arc Industries, Inc. (1976),

47 O.St.2d 146, 150, 351 N.E.2d 113 ......... .....................8State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152,

684 N.E.2d 1237, 1997-Ohio-351 ..................................12Blakemore v. Blakemore ( 1983), 5 Ohio St.3d 217, 450 N.E.2d 1140 ..12

i.

PROPOSITION OF LAW II: CSEA unlawfully conducted anadministrative review of a non-existing support order, in a sharedparenting plan, which resulted in an unlawful support order being issuedagainst Appellant . . . .. . . . . . .. . . . . . . ... .. . . . . . .. .. .. ...................................................12

Authorities:

RC 3119.76 ...................................................................................13OAC 5101.12-60-05.1 . . . . . . .. . . .. . . . .. . . .. .. . . . . . . . . . . . . ...............................13OAC 5101.12-60-05.1 (D)(1) .......................................................13OAC 5101.12-60-05.1(E) .............................................................13RC 3119.61 ...................................................................................13RC 3119.23 ...................................................................................13RC 2151.231 .................................................................................13

CONCLUSIOI^,T ......................... ........................................................................................15

PROOF OF SERVICE ......................................................................................................16

ii.

IN THE

SUPREME COURT OF OHIO

IN RE: MARIAH GULLEY

MARLIN GULLEY

and

: NO.

HAMILTON COUNTY CHILDSUPPORT ENFORCEMENT AGENCY : MEMORANDUM IN SUPPORT

OF JURISDICTIONPlaintiffs-Appellees,

vs.

LOUIS FANTETTI

Defendant-Appellant.

EXPLANATION OF WHY THIS CASE INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION AND ISA CASE OF PUBLIC OR GREAT GENERAL INTEREST

Appellant believes this case involves a substantial constitutional question as he

was denied his constitutional right to a full and fair hearing on the Motion he filed

pursuant to Civ.R. 60(B). Appellant further believes that this case involves great general

interest as the basis for his 60(B) Motion was the fact that the Hamilton County

Department of Job and Family Services, Child Support Division ("CSEA") unlawfully

conducted an administrative review of a non-existing support order, in a shared parenting

plan, which resulted in an unlawful support order being issued against Appellant.

STATEMENT OF THE CASE AND FACTS

a) Procedural Posture:

On Apri13, 2006, the trial court overruled Appellant's Objections to the

Magistrate's Decision of August 25, 2005 which summarily dismissed Appellant's

Motion for Relief pursuant to Civ.R. 60(B). On June 13, 2007, the First District Court of

Appeals for Hanlilton County, Ohio affirmed the judgment of the trial court.

b) Statement of the Facts:

On September 22, 1993, Plaintiff/Appellee, Marlin Gulley (hereinafter "Mother"),

and Defendant/Appellant, Louis Fantetti (hereinafter "AppellanY") executed a Shared

Parenting Plan, concerning their daughter, Mariah Gulley, DOB: 12/27,191, which was

entered with the Hamilton County Juvenile Court on that date. On August 13, 1998, the

Hamilton County Juvenile Court ternunated Appellant's child support order contained in

the Shared Parenting Plan, but otherwise the Plan remained in full force and effect.

In 2001, Mother contacted the Division of Child Support of the Hamilton County

Job and Family Services (hereinafter "CSEA") for the purposes of ordering Appellant to

pay child support. CSEA conducted an order modification hearing and set a child support

order against Appellant. Appellant objected to the issuance of this Order, and as a result,

CSEA filed a Motion to Set Hearing To Modify Support in the Hamilton County Juvenile

Court on January 7, 2002. On June.26, 2002, a hearing was held before a Magistrate in

Juvenile Court concerning Appellant's objections. Appellant was not represented by

2.

counsel, although Mother was. Appellant stated to the Court that he was not prepared for

a hearing as he believed that the matter was set for him to comply with Mother's

discovery demands. When Appellant questioned CSEA's ability to issue an order, the

Magistrate stated that the CSEA reviewed cases every so often. In response, Appellant

stated that Mother must have initiated the action because the CSEA would not have since

he "never paid child support through the courts." An unknown speaker then stated,

incorrectly, that there was a zero child support order. Appellant attempted to explain to

the Magistrate that he had a Shared Parenting Plan concerning their daughter and paid for

many of the child's expenses on his own. The Magistrate's response was that he was

permitted to make such gifts. The Magistrate set Appellant's order at $ 507.25 per

month, effective November 1, 2001, with an order towards his arrearage.

Appellant filed an Objection to the Magistrate's Decision on October 1, 2002,

including a Motion to File Objections out of time. The Objections were set for hearing

before the trial judge on December 17, 2002. Appellant stated to the Court that he had

filed Objections timely in June of 2002, however, the Clerk's Office lost or misplaced his

Objections, so he refiled in October when he was first notified of the problem. Appellant

had not obtained a transcript of the hearing on June 26, 2002. Instead of giving Appellant

time to obtain a transcript to proceed with the Objections, as he was not represented by

counsel, the trial judge advised Appellant on six different occasions that the better course

of action was for Appellant to file to file a motion to modify his support order. Each

3.

time, the trial judge stated to Appellant that filing a motion to modify was the better way

to handle his case, and so Appellant stated that that was what he was going to do. The

trial judge then stated he was denying Appellant's Objections.

On July 30, 2003, Appellant filed a Motion to Modify his child support order

which was set for hearing on October 16, 2003. Again, Appellant was not represented,

but Mother was. The Magistrate noted that since Appellant did not pay for a transcript,

the Court had advised him to file this Motion. The Magistrate then asked Appellant what

had changed since the administrative modification in 2001. The Magistrate modified

Appellant's support obligation to $ 430.00 per month plus $ 100.00 per month towards

his arrearage. Appellant tried to explain to the Court that he and Mother had a Shared

Parenting Plan, and he paid for a majority of their daughter's expenses, however, the

Court did not consider this testimony in ordering guideline support.

On July 6, 2004, a contempt hearing was scheduled before the trial judge as

Appellant had been found in contempt, on June 10, 2003, for failing to pay his child

support obligation as ordered. At that time, Appellant, still not represented, made a

written and oral argument as to why his child support order was not proper, which

included advising the trial court that he and Mother had a Shared Parenting Plan, the

Court terminated his support order in 1998, and that the CSEA improperly issued an

order, and the Court erroneously upheld the order each time. The trial judge then stated

to Appellant that the "situation is way too complicated because [he was] making

4.

assertions that the Child Support Enforcement Agency improperly made a modification of

[his] support order without proper legal authority to do so." The trial judge further stated

that a further study needed to be made as to whether or not an administrative agency

could modify an order after a Magistrate terminated the current support order. The trial

judge stated several times that Appellant needed to obtain the services of an attorney to

assist him, and ultimately, continued the matter for a hearing on Apri126, 2005 so that

Appellant could obtain counsel to "forward his legal arguments" and for sentencing

regarding his contempt fmding.

On February 4, 2005, Appellant obtained counsel, and his counsel filed an

Amended Motion to Set Aside his support order pursuant to Ohio Civil Rule 60(B). On

Apri126, 2005, a Magistrate, sitting in for the trial judge, ordered that a full evidentiary

hearing on Appellant's Amended 60(B) Motion be had. The matter was continued to

June 15, 2005 for a full hearing before a Magistrate.

On June 15, 2005, instead of holding a full evidentiary hearing, the Magistrate

ordered that the parties prepare written legal arguments so that the Magistrate could rule

on Appellant's 60(B) Motion. After all written arguments were filed, Appellant filed a

Motion for Evidentiary Hearing since each party had a different version of facts which

Appellant believed were crucial to the decision making process. However, the Magistrate

had filed his Decision dismissing Appellant's 60(B) Motion on August 26, 2005, which

was not received by Appellant until August 31, 2005. The Magistrate stated in his

5.

Decision that the matter was res judicata because Appellant failed to follow through with

his original Objections in December of 2002 and otherwise perfect his appeal to this

Court The Magistrate fnrther noted that the 60(B) Motion was filed on February 4, 2005,

and therefore, was well beyond the one year limitations on such motions. The Magistrate

further stated that the trial judge had properly instructed Appellant to file a Motion to

Modify his support order.

Appellant filed Objections to the Magistrate's Decision on September 1, 2005.

On November 28, 2005, the trial judge heard arguments of counsel and took the matter

under advisement for the issuance of a decision on or before January 24, 2006.

On December 22, 2005, Appellant filed a Motion to Supplement the Record and

attached several documents in support of his position that the CSEA improperly issued a

child support order. According to the Motion, Appellant stated that since no evidentiary

hearing was held in this case, the trial judge needed to see these proffered documents in

order to properly rule on Appellant's Objections. These documents showed that CSEA

was aware that they should never have issued an administrative child support order and

were going to be "forthcoming" with the Court at a hearing on Appellant's Motion. On

January 24, 2006, the trial judge held a hearing concerning Appellant's Motion to

Supplement the Record and continued the matter, again, for the issuance of a decision.

On Apri13, 2006, the trial judge issued a decision overruling Appellant's

Objections. The Decision did not mention the court's rulings as to Appellant's Motion

6.

for Full Evidentiary Hearing and Motion to Supplement the Record. The trial judge

incorrectly stated in his Decision that on March 30, 2001, Mother filed a Motion to

Modify the Shared Parenting Plan and asked the CSEA to review the support order and

set an appropriate order. The trial judge further stated that as to the Objections filed by

Appellant, which were heard by the Court on December 17, 2002, Appellant decided not

to provide a transcript of the Magistrate's Decision, so the Objections were denied. The

trial judge then stated that Appellant was given the option to provide a transcript to the

Court, but Appellant declined because he could not afford a transcript. The Court fiuf.her

stated that the "Court noted that the Appellant could file for a modification `as a motion

to modify [would] accomplish this matter being brought back for a recalculation of

support even though the effective date will be later."' The Court stated that the

Magistrate considered that the 60(B) Motion was filed well beyond the timelines set forth

in the rule. The Court further stated that the Magistrate made its Decision after hearing

arguments of counsel on June 15, 2005 and August 26, 2005, which was incorrect. The

Court fiuther stated that Mother and CSEA were "entitled to establish an administrative

support order where the parents are not living together to determine the needs and

fmancial wellbeing [sic] of the child. The administrative order was subject to the court's

review." Finally, the Court stated that the Magistrate correctly found that there had been

no appeal from the Court's decisions of December 17, 2002 and October 16, 2003, and

therefore the matter was resjudicata.

7.

On April 24, 2006, a timely notice of appeal was filed by Appellant with the First

District Court of Appeals. Appellant raised one assignment of error, specifically, that the

trial court erred as a matter of law by overruling Appellant's Objections to the

Magistrate's Decision Dismissing his Motion for Relief from Judgment Pursuant to

Civ.R. 60(B). On June 13, 2007, the First District issued its Decision affirming the trial

court's judgment.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

PROPOSITION OF LAW I: Appellant was denied his constitutional rightsto a full and fair hearing on the Motion for Relief from Judgment filed pursuant toCiv.R. 60(B).

According to Civ.R. 60(B), a trial court may relieve a party from a fmal judgment

or order for several enumerated reasons, including for "any...reason justifying relief from

the judgment." A motion pursuant to this particular subsection shall be made within a

reasonable time. Civ. R. 60(B)(5). "The grounds for invoking Civ.R. 60(B)(5) should be

substantial." Caruso-Ciresi, Inc. v. Lohman (1983), 5 O.St.3d 64, 66.

This Court has held that to prevail on a motion to set aside a judgment under

Civ.R. 60(B), the moving party must establish all three of the following: "(1) the party

has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to

relief under one of the grounds stated in Civ.R 60(B)(1) through (5); and (3) the motion

is made within a reasonable time..." GTEAutomotive Electric, Inc. v. Arc Industries,

Inc. (1976), 47 O.St.2d 146, 150, 351 N.E.2d 113.

8.

The First District, in its decision, relied heavily upon the fact that Appellant did

not show that he was entitled to relief and that his motion was not filed within a

reasonable time. However, Appellant was not given the opportunity to do so. Had the

trial court followed its own order, and actually pennitted Appellant to present his case at

a full evidentiary hearing, Appellant would have demonstrated that the child support

order against him was unlawful. Specifically, Appellant would have showed that the

CSEA did not have the legal authority to issue the administrative modification order in

the first place, and the trial court's perpetuation of this unlawful order has now caused

Appellant to accrue an enormous arrearage for which he is currently facing jail time. The

only way to "cure" this substantial injustice was to give Appellant the opportunity to

present his case, and if successful, Appellant's arrearage would be reduced to zero, and

Appellant's support order would be set based upon the proper legal authority.

The First District also appeared to have issue with the fact that Appellant did not

raise this particular issue during his initial objections to the rnagistrate's decision of June

of 2002. However, the trial court did not give Appellant the opportunity to do so. Instead

of allowing Appellant to obtain a transcript and proceed with his objections, the trial

court made it very clear to Appellant, not once, but at least six times, during that hearing

that he should file a motion to modify his support obligation verses proceeding with the

Objections because it was less expensive, and it was the better way to handle his case. Of

course, Appellant is going to trust the advice given by the trial judge because the trial

9.

judge presumably knows the law. The trial judge further stated in his final Entry that he

advised Appellant that if he did choose the motion to modify route, that there would be a

new effective date for the support order, and it would not affect the arrearage already

accumulated. Other than in the written entry itself, at no time did the trial judge state this

on the record to Appellant. As Appellant was not represented, he obviously relied upon

what he heard in court verses what may have been written in an entry drafted at a later

flme. In giving this erroneous advice, however, the trial judge forgot to mention that

Appellant would have to prove a material change in circumstance before the court could

modify his order. Although the Magistrate questioned this during the modification

hearing on October 16, 2003, the Magistrate still modified the order, albeit erroneously.

After doing some research on his own, and learning that the CSEA had no authority to

modify a non-existing support order, Appellant prepared his written version of a Motion

for Relief from Judgment pursuant to Civ.R. 60(B) which was presented to the trial court

in July of 2004.

Finally, the First District affirmed the trial court's decision on the basis that

Appellant had not filed a timely Civ.R. 60(B) Motion. Appellant states that his Motion

was filed within a reasonable amount of time. Appellant presented his pro se Civ.R.

60(B) Motion before the trial judge on July 6, 2004, not February 4, 2005, as incorrectly

stated by both the magistrate and the trial court in their respective decisions. The Motion

filed February 4, 2005 was an amended motion which related back to the July 6, 2004

10.

oral and written motions made by Appellant. The Motion was made within one year from

the date of the last support order that was issued on October 16, 2003. In Appellant's

proffered documents (not ruled upon by the trial court), the assistant prosecuting attorney

for CSEA admitted that if the trial judge interpreted Appellant's comments as an oral

60(B) Motion on July 6, 2004, then Appellant's 60(B) motion was filed within the one

year time limit. It is clear from the July 6, 2004 transcript that the trial judge did just

that--it interpreted Appellant's written and oral comments as a motion to set aside the

child support order, ie, a 60(B) Motion. The trial judge fitrther instructed Appellant to

retain the services of an attorney to do some additional research to support his motion and

continued the matter for a full hearing on April 26, 2005. Appellant complied with this

order, obtained counsel, and filed an amended 60(B) Motion with legal authority, on

February 4, 2005. However, on April 26, 2005, the trial judge was not present for the

hearing. Instead a magistrate was present, and after hearing arguments of counsel, the

magistrate ordered a full evidentiary hearing to be held at a later date even though all

parties and a representative from CSEA were present to provide testimony, if necessary.

Yet, that evidentiary hearing never took place, and as a result, this inaction by the trial

court was blamed upon Appellant. Even if the First District was correct, that Appellant

waited eighteen months to file, how this could be construed as unreasonable, in light of

the foregoing, is truly unbelievable.

11 .

Appellant is mindful that the standard of appellate review used to evaluate a trial

court's decision to deny a Civ. R. 60(B) motion is abuse of discretion. State ex rel. Russo

v. Deters (1997), 80 Ohio St.3d 152, 153, 684 N.E.2d 1237, 1997-Ohio-351. An abuse of

discretion is more than a mere error in judgment or law; rather, it implies an attitude on

the part of the trial court that is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. However, in this case, the

trial court did abuse its discretion in failing to follow its own order to hold a full and fair

evidentiary hearing on Appellant's Motion. Further, the trial court abused its discretion

by refusing to rule upon the Motion for Evidentiary Hearing, Motion to Supplement the

Record and similarly pending motions in its April 31d decision. These abuses were

sanctioned by the First District. In sum, Appellant states that he presented sufficient

evidence and argument before the trial court to wanant a full evidentiary hearing on his

60(B) Motion. Due process demanded nothing less. What is at stake is substantial, that

being Appellant's freedom, but also what truly is in the best interests of the parties' child.

PROPOSITION OF LAW II: CSEA unlawfully conducted anadministrative review of a non-existing support order, in a shared parenting plan,which resulted in an unlawful support order being issued against Appellant.

The First District stated in its decision that it was not considering whether there

was merit to Appellant's arguments in his Civ.R. 60(B) Motion, as it did not believe that

Appellant sufficiently demonstrated the second and third elements required for relief from

12.

judgment. However, the fact that Appellant's current support order was unlawfully

issued does require that Court as well as this Court to consider those arguments.

If given the opportunity, Appellant will establish that the CSEA had no legal nor

administrative authority to issue a child support order against him in the first place.

According to RC 3119.76, the director of job and family services shall adopt rules

establishing a procedure for determining when existing child support orders should be

reviewed to determine whether it is necessary and in the best interest of a child, who is

the subject of a support order, to change the child support order. [emphasis added] The

gist of this section is that CSEA may establish an administrative review process so that

parents may have an inexpensive means to review an existing support order to see if it

should be modified due to changes in the parties' incomes, etc. OAC 5101.12-60-05.1

sets forth conditions under which the CSEA is permitted to conduct an administrative

review of a child support order. An administrative review may be initiated by either party

to a support order every thirty-six months from the date of the most recent support order

or sooner if certain specified situations are present. OAC 5101.12-60-05.1 (D)(1) and

(E). Further, RC 3119.61 states that if the CSEA cannot set the amount of child support

an obligor will pay under the administrative child support order without granting a

deviation, pursuant to RC 3119.23, the agency shall bring an action under RC 2151.231

on behalf of the person who requested that the agency review the matter so that the court

can issue a child support order. The key in all these sections is that there must be an

13.

existing support order to be reviewed before the CSEA can conduct an administrative

review hearing and issue an administrative child support order. Appellant submits that

there was no existing child support order in 2001 because the Court had completely

terminated Appellant's support obligation in 1998. In addition, Appellant states that he

can and will produce evidence from CSEA personnel that there is an internal policy that

the CSEA is not permitted to modify any support orders where there is an existing Shared

Parenting Plan between the parties. Appellant proffered this evidence by way of argument

to the trial court and in the documents proffered in his Motion to Supplement the Record.

These documents clearly show that CSEA, through the prosecuting attorney's office, was

going to be "forthcoming" with the trial court that they did not have the authority to

review this order. Appellant's entire argument is that he was not permitted to present this

evidence because he was not given the opportLuiity to have a full evidentiary hearing even

though the Court actually ordered it on Apri126, 2005. If Appellant's argument is true,

and CSEA had no authority to issue a support order, any further court orders should be

null and void under a"fiuit of the poisonous tree" theory.

Another important consideration is the fact that the trial court refused to consider,

at any point in the process, that Appellant had at least 50% of the time with their daughter

and was providing a substantial aaznount towards her support in addition to paying Mother

$ 200.00 per month. The Court's response each time was that Appellant was providing

gifts, instead of truly considering that a deviation was appropriate for these contributions.

14.

The only way to right all the wrong that has accumulated over the past five years is to

hold a new hearing to determine the appropriate amount of support that is in the best

interest of this child. Appellant is asking for no more and no less. Based upon the

foregoing, Appellant submits that since the CSEA had no authority to conduct an

administrative review in his case, the support order issued by CSEA, and perpetuated by

the trial court, was also unlawful, and all other orders thereafter were null and void.

CONCLUSION

Appellant believes this case involves a substantial constitutional question because

Appellant was denied his constitutional rights to have a full and fair evidentiary hearing

on his Civ.R. 60(B) Motion. Appellant finther believes that this case involves great

general interest because as the basis for his 60(B) Motion was the fact that the Hamilton

County Department of Job and Family Services, Child Support Division ("CSEA")

unlawfully conducted an administrative review of a non-existing support order, in a

shared parenting plan, which resulted in an unlawful support order being issued against

Appellant.

#0059479-Appellant

906 Main Stre`ef; Suite 403Cincinnati, OH 45202PHONE: (513) 241-0500FAX: (513) 241-2555EMAIL: mstagnaro@fuse.net

15.

PROOF OF SERVICE

I hereby certify that a copy of the foregoing Notice of Appeal was served uponPhillip E. Foote, Assistant Prosecuting Attomey for Hamilton County, Ohio, and StephenC. Crowe, by regular U.S. Mail, this 27th day of July, 2007.

16.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

IN RE: MARIAH GULLEY

MARLIN GULLEY

and

HAMILTON COUNTY CHILDSUPPORT ENFORCEMENT AGENCY,

PIaintiffs-Appellees,

vs.

LOUIS FANTETTI,

Defendant-Appellant.

ENTIREDJUN 13 2007

IMAGE

APPEAL NO. C-o6o375TRIAL NO. F93-175-Z

JUDGM.BNT ENTRY.

IN

ll73712977

We consider this appeal on the accelerated calendar, and this judgment entry

is not an opinion of the court.,

Louis Fantetti appeals the trial court's judgment that denied his Civ.R. 6o(B)

motion for relief from judgment. We conclude that his sole assignment of error does

not have merit, and we therefore affirm the judgment of the trial court.

In 1993, Fantetti and Marlin Gulley signed a shared-parenting plan

concerning their daughter, Mariah. The plan provided that Fantetti would pay $221

per month in child support. In 1998, upon a joint motion from the parties, the

I See S.CtRRep.Op. g(A), App.R. u..i(E), and Loc.R. 12.

OHIO FIRST DISTRICT COURT OF APPEALS

juvenile court terminated child support and set aside any arrearage that Fantetti

owed. In 20o1, Gulley requested that the Hamilton County Child Support

Enforcement Agency ("CSEA") review the child-support order for purposes of

modification. The agency recommended that Fantetti pay $493.13 per month in

support. Upon Fantetti's objection to CSEA's recommendation, CSEA requested that

the Hamilton County Juvenile Court hold a hearing on the revised child-support

amount.

A hearing was held before a magistrate on June 26, 2002. Fantetti

represented himself. During the hearing, Fantetti did not challenge CSEA's authority

to revise the child-support order. Instead, he argued that the amount was too high.

At the conclusion of the hearing, the magistrate ordered Fantetti to pay $507 per

month in child support.

Fantetti objected to the magistrate's order, and on December 17, 2002, the

juvenile court held a hearing on his objections. Fantetti did not file a transcript of

the June 26 hearing, because he did not want to pay for one. The court suggested

that the parties agree to a compromise amount for child support, or that Fantetti file

a motion to modify child support, if the parties could not agree. The court denied

Fantetti's objections to the magistrate's decision and accepted it as the judgment of

the court.

Fantetti did not appeal the trial court's adoption of the magistrate's decision.

Instead, he filed a motion to modify child support in July 2003. During the hearing

on the motion, Fantetti argued that the magistrate and the court had erred in

imputing income to him because he was not working. The magistrate ordered that

2

OHIO FIRST DISTRICT COURT OF APPEAI,S

child support be reduced to $430 per month and that Fantetti pay $ioo per month

for the arrearage.

Because Fantetti had not paid the entire child-support amount that had been

ordered by the juvenile court, he was in contempt of the court's order. A contempt

purge hearing was held on July 6, 2004. At that time, Fantetti's arrearage was

$11,420. During the hearing, Fantetti argued that CSEA did noYhave the authority to

revise the child-support order because the original child-support order had been

terminated. The trial court advised him that he would need legal support for his

argument and suggested that he retain a lawyer to help him. The court continued the

hearing until April 2005, so that Fantetti could make payments under the child-

support order.

In February 2005, Fantetti, now represented by counsel, filed a Civ.R. 6o(B)

motion for relief from judgment, seeldng to set aside the child-support order entered

on June 26, 2002, and modified on October i6, 2003, to reduce any arrearage to

zero, and to remand the case to the magistrate for a hearing. Fantetti argued that

CSEA had had no authority to order child support in the first place because there was

no support order for it to review under R.C. 3113.26. The magistrate denied the

motion. The trial court overruled Fantetti's objections to the magistrate's decision

and adopted the decision as the judgment of the court.

In his sole assignment of error, Fantetti now asserts that the trial court erred

when it denied his Civ.R. 6o(B) motion. We disagree.

To succeed on his motion, Fantetti had to demonstrate (1) that he had a

meritorious claim to present if the motion was granted; (2) that he was entitled to

relief under Civ.R. 6o(B)(i) through (g); and (3) that the motion was filed within a

3

OHIO FIRST DISTRICT COURT OF APPEALS

reasonable time.2 Fantetti sought relief under Civ.R. 6o(B)(5), which provides for

relief from judgment "for any other reason justifying relief." We review a trial court's

denial of a Civ.R. 6o(B) motion under an abuse-of-discretion standard.3 And "(tjhe

grounds for invoking Civ.R. 6o(B)(5) relief must be substantial."4

We need not consider whether there was merit to Fantetti's argument that

CSEA did not have authority to enter the child-support order in the first place,

because we conclude that Fantetti did not sufficiently demonstrate the second and

third elements required for relief from judgment. Fantetti failed to raise the issue of

CSEA's authority in his original objections to the magistrate's order in July 2002.

Instead, he took issue with the amount that was ordered. That he was representing

himself at the time and may not have been able to articulate a legal argument

regarding CSEA's authority was not a sufficient reason to justify setting aside the

order.

And Fantetti did not demonstrate that his motion was filed within a

reasonable time. Even if we were to conclude, as urged by Fantetti's counsel, that his

argument during the July 2004 hearing was, in essence, a Civ.R. 6o(B) motion for

relief from judgment, the motion would not have been filed within a reasonable time.

Fantetti had been given, and had taken, many opportunities to object to the trial

court's decisions. Until July 2004, he challenged only the amount of the support

order. We conclude that waiting over 18 months to challenge the authority of CSEA

was unreasonable.

^ GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,paragraph two of the syllabus.3 State ex rel. Russo v. Deters, So Ohio St.3d 152, 153, 1997-Ohio-351. 684 N.E.2d 1237.4 Caruso-Ciresi, Inc. v. Lohman (1983),5 Ohio St.3d 64, 66, 448 N.E.2d 1365.

4

OHIO FIRST DISTRIC'i' COURT OF APPEALS

The trial court did not abuse its discretion when it denied the Civ.R. fio(B)

motion for relief from judgment. The sole assignment of error is overruled, and we

therefore affirm the judgment of the trial court.

Further, a certified copy of this Judgment Entry shall be sent to the trial

court under App.R. 27. Costs shall be taxed under App.R. 24.

SuNDERMANN, P.J., HENDON and DINKELACAHx, JJ.

To the Clerk:

Enter upon the JournplA^.t^'ye^Court yn June 13, 2007

per order of the Court 4Acting Presiding Judge

5