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Court News Ohio

Supreme Court Holds That Indigent Parent Does Not Have Right to Appointed Counsel in Purge Hearing

The Supreme Court of Ohio ruled today that a hearing to determine whether someone has purged himself or herself of a previous court order of civil contempt is a civil rather than a criminal proceeding. Therefore, the court held, the Due Process Clauses of the U.S. and Ohio constitutions do not guarantee an indigent parent the right to appointed counsel at a civil-contempt purge hearing in a child support case.

The court’s 5-2 majority opinion, written by Justice Judith Ann Lanzinger, affirmed a ruling by the Fourth District Court of Appeals.

The case involved an order issued by the Athens County Juvenile Court compelling Michael Liming to pay a specified amount each month to his ex-wife, Denday Damos, for the support of the couple’s two children.  Approximately six months after the date on which support payments were to begin, the Athens County Child Support Enforcement Agency filed a motion for contempt based on Liming’s failure to comply with the child-support order. 

A domestic relations court magistrate conducted a hearing on the contempt motion at which Liming was present and represented by an attorney. The magistrate recommended that the court hold Liming in contempt and sentence him to 30 days in jail with the term suspended as long as he paid his full monthly current support and arrearage payments and complied with other conditions for one year.  The contempt would be considered purged as long as Liming remained in compliance.  No objections were filed, and the trial court adopted the magistrate’s decision on November 12, 2008.  Liming did not appeal.

Nine months later, the agency filed a motion to impose sentence for Liming’s failure to comply with a seek-work program, to report employment changes to the agency, and to pay child support. The trial court held a hearing on the motion to impose the suspended sentence (“purge hearing”) on June 14, 2010.  Liming requested at the outset that a public defender be appointed to represent him.  The court denied that request. Afterward, the court found that Liming had not complied with the conditions under which his sentence for contempt had been stayed.  It then imposed ten days of the 30-day jail term, suspending the remaining 20 on the condition that for one year Liming fully comply with an intervening June 3, 2010 judgment entry, which had reduced his monthly child-support and arrearage obligations.

Liming appealed the denial of his request for appointed counsel at the purge hearing.  On review, the Fourth District Court of Appeals held that the original contempt proceeding against Liming had been civil in nature.  The Fourth District held that enforcement of the sentence imposed for that contempt did not convert a later purge hearing into a criminal proceeding at which Liming had a right to appointed counsel under either the Sixth Amendment or Due Process Clause of the U.S. Constitution.  The Fourth District noted, however, that its denial of a due process right to counsel at a purge hearing was in conflict with a 2001 ruling on the same issue by the Sixth District Court of Appeals.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the majority in today’s decision, Justice Lanzinger began by analyzing the characteristics that distinguish civil and criminal contempt.  She wrote: “Because all contempt involves some type of sanction or punishment, the distinction between civil and criminal contempt is usually based on the purpose to be served by the sanction. ... If the sanction is remedial or coercive and for the benefit of the complainant rather than the court, the contempt proceeding is usually classified as civil. ... Often, civil contempt is characterized by conditional sanctions, i.e., the contemnor is jailed until he or she complies with the court order.  ...  On the other hand, criminal contempt is usually characterized by unconditional prison terms or fines.  ...  The purposes behind the sanction in criminal contempt are primarily to punish the contemnor and to vindicate the authority of the court.  ...  To determine the purpose of the sentencing court, the entire record must be reviewed.”

“There is no dispute that Liming’s original 2008 contempt proceeding was civil in nature.  Although he was sentenced to 30 days in jail for failing to pay child support, the trial court suspended that term and ordered that he could purge the contempt if he complied with several conditions for one year. ... This case arose because the agency alleged that Liming had failed to comply with those purge conditions. ... A purge hearing is not a new contempt proceeding but a conclusion of the originating contempt hearing, because its purpose is to determine whether the contemnor has satisfied the purge conditions.  If the conditions are unfulfilled, the court is entitled to enforce the sentence already imposed, the sanction that could have been avoided by the contemnor’s compliance.”

Justice Lanzinger pointed to a number of procedural safeguards that are built into Ohio child support contempt proceedings to protect the rights of indigent parents, including mandatory written notice to parents that they are entitled to a hearing at which the court will appoint counsel to represent them if they are indigent, and notice of the potential penalties they could face if found in contempt of a court order.  Thus, Justice Lanzinger wrote, “(t)he only issue left for the purge hearing is whether the contemnor complied with the purge requirements.”

“(W)hile it is true that Liming could no longer purge the ten-day sentence imposed in June 2010, this was not a new sentence or a new punishment. Liming had ‘held the keys’ to the jailhouse door for over a year by the time the purge hearing was conducted, but he had not fully complied with the November 2008 contempt order. It also appears that the trial court was still trying to obtain Liming’s compliance with his child-support obligations.  Although the order is more coercive because Liming was ordered to serve ten of the 30 days the court had previously suspended, it nonetheless serves as an incentive for future compliance if Liming wishes to avoid serving the remaining 20 days.”

“Accordingly, we agree with the Fourth District and answer the certified question by holding that if the original contempt sanction is civil, a purge hearing retains the civil nature of that proceeding.”

In rejecting Liming’s claim that the trial court was obligated to make findings about his ability to pay the ordered child support before enforcing his contempt sentence, Justice Lanzinger wrote: “It has long been held that in a contempt proceeding, inability to pay is a defense and the burden of proving the inability is on the party subject to the contempt order. ... At the hearing on the motion to impose the suspended sentence, Liming did not offer any evidence of his inability to pay.  ... Liming made bare assertions that he was unable to make the monthly child-support and arrearage payments as originally ordered by the trial court in 2008, but he said he believed that he could handle the reduced amounts in the June 2010 judgment entry. His statements, however, are insufficient to satisfy his burden of proof on this issue.”

“Based on the evidence before the trial court, the agency established that Liming had not met his purge conditions. Because he had the burden of proof and failed to produce evidence of inability to pay, the trial court’s failure to expressly find that he had the ability to pay did not convert the purge hearing into a criminal proceeding. Therefore, the right to counsel under the Sixth Amendment to the United States Constitution and under the Ohio Constitution, Article I, Section 10  did not apply.” 

Justice Lanzinger also reviewed a recent U.S. Supreme Court holding in Turner v. Rogers (2011).  The Turner Court stated: “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”  The majority noted that Turner was instructive but did not answer the precise question before the court concerning a purge hearing. Justice Lanzinger then employed the Mathews v. Elridge (1976) balancing test and concluded that the factors weighed against requiring the state to provide Liming with counsel at the civil-contempt purge hearings.

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown.

Justice Terrence O’Donnell entered a dissent, joined by Justice Paul E. Pfeifer, in which he disagreed with the majority holding that a hearing is not required to determine the contemnor’s ability to pay. Justice O’Donnell wrote that in his view, before a trial court may enforce a suspended contempt sentence that includes incarceration based on non-payment of child support, the court must conduct a hearing at which an indigent contemnor has access to appointed counsel, and the court must determine at that hearing whether the contemnor had the ability to pay the support ordered by the court.

Citing the U.S. Supreme Court’s holding in Turner v. Rogers that courts enforcing contempt sentences based on non-payment must either appoint counsel or adopt “alternative procedures” that safeguard the rights of indigent persons before depriving them of their personal freedom, Justice O’Donnell wrote: “Ability to pay is at the heart of contempt for failure to pay. A contempt action includes hearings to determine contempt as well as the purge of that contempt, and the right of a parent facing incarceration due to noncompliance with the purge conditions of a contempt order is not dependent on the nature of specific hearing or whether the action is civil or criminal; rather, the right of an indigent parent to counsel is dependent on the ability to pay.”

“Although Turner does not require the appointment of counsel in all such instances, assuming that Liming qualified as indigent at the purge hearing, balancing of the three competing factors in Mathews v. Eldridge seems to favor the appointment of counsel, and the failure to the court to make an express finding as to his ability to pay, and to appoint counsel upon a finding of indigency, violated his right to procedural due process. For these reasons, I would reverse the judgment of the Fourth District Court of Appeals, and remand the matter to the juvenile court for determination as to whether Liming qualified as indigent, and for the appointment of counsel upon a finding of indigency.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2011-1170 and 2011-1985.  Liming v. Damos, Slip Opinion No. 2012-Ohio-4783.
Athens App. No. 10CA39, 2011-Ohio-2726.  Judgment affirmed.
O’Connor, C.J., and Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer and O’Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-4783.pdf

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