IN THE SUPREME COURT OF OHIO Juliana H. Brooks-Lee, * Plaintiff-Appellee, Vs. Paul W. Lee, Defendant-Appellant. Case No. 12-0461 On appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals No. 11APF-03-284 APPELLEE'S MEMORANDUM IN RESPONSE TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT PAUL W. LEE Paul W. Lee, Appellant, Pro Se Attorney at Law Supreme Court Reg. No. 0023448 920 Bryden Road Columbus, Ohio 43205 (614) 372-0090 Pro Se Appellant Vincent A. Dugan, Jr. Attorney at Law Supreme Court Reg. No. 0025982 923 East Broad Street Columbus, Ohio 43205 (614) 222-8200 Counsel for Appellee
TABLE OF CONTENTS Page No. Appellee's Position...:...,... 4 Statement of Case... 5 Argument Memo Contra Appellant's Propositions of Law... 8 Certificate Of Service... 15 2
TABLE OF AUTHORITIES OHIO CONSTITUTION Page No. Article 4, Section 2(B)(2)(e) of the Ohio Constitution... 8 CASES Blakemore v. Blakemore, 5 O. St. 3d 217 (1983)... 11 Brooks v. Lee I, 106 O.S. 3d 1545 (2005)... 9 Brooks v. Lee II, 115 O.S. 3d 1410 (2007)... 9 Brown v. Executive 200, Inc., 64 O.S. 2d 250 (1980)... 10, 11 Casmer v. Petrie, 70 O. App. 3d 131 (1994)... 10 Flowers v. Flowers, Case No. 10AP-1176; 2011 Ohio 5974 (I0' Appellate District)... 9 Foley v. Foley, Case No. 05AP-242, 2006-Ohio-946 (10`h Appellate District 2006).............................................................. I 1 Grava v. Parkman Twp., 73 O.S. 3d 379 (1995)... 13 In re Contempt ofmorris, 110 O. App. 3d 475 (1996)... 11 In re Davis, 77 O. App. 3d 257 (1991)... 10 Push v. Push, 15 O.S. 3d 136 (1984).:... 10 Sansom v. Sansom, Case No. 05AP 645; 2006 Ohio 3909 (10`h District 2006)...:... 10, 11 Post v. State, 7 Ohio C.D. 257 (1890)... 12 State ex rel. Corn v. Russo, 90 O.S. 3d 551 (2001)... 10 3
APPELLEE'S POSITION AS TO WHETHER THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST Appellee's position in this matter is that this case is not of public or great general interest. Appellant claims that more than one interpretation exists for trial courts when applying the law to a contempt motion and then fashioning the requisite purge order thereafter, yet he attaches no case law to support his position. The Appellant argues that trial courts need guidance in the application of common facts patterns to the terms of a divorce decree. Essentially, the only fact pattern which the Defendant-Appellant would need deem that a trial court would need guidance upon, is his own fact pattern. He has disagreed with the consistent contempt findings of the Magistrate; the Trial Judge; and now the Tenth District Court of Appeals. The Appellant is an attorney who is trying to manipulate the legal system to attain the results he desires. He simply does not want to comply with the prior Orders of the lower courts. The divorce case in this matter was filed in 2001, and the Appellant has continued to object to and appeal every decision of the Courts that was not in his favor. He is an attorney, and frankly, he knows better. He is abusing the legal system in attempt to harass his former wife, and to avoid paying the monies owed to her. 4
STATEMENT OF THE CASE The parties to this action were divorced on October 21, 2003. In that action, the Trial Court incorporated the parties' Separation Agreement of May 17-18, 2001 and also disposed of some other issues between the parties. On November 6, 2006, and January 4, 2007, the Defendant-Appellant filed contempt motions against the Plaintiff-Appellee. On January 10, 2007, the Plaintiff- Appellee filed a contempt motion against the Defendant-Appellant for A) refusing to pay his portion of the children's uninsured medical expenses; B) improperly filing liens on Plaintiff-Appellee's real estate and refusing to remove them; C) refusing to pay, indenmify and save Plaintiff-Appellee harmless upon all interest, tax, penalties and attotney fees relating to deficiencies from previously filed joint income tax returns; and D) for attorney fees related to the prosecution of all of those motions. These motions were heard by Magistrate Novack in September 2009; Magistrate Novack subsequently issued her Decision of these matters on July 13, 2010. In her Decision, Magistrate Novack found the Plaintiff-Appellee guilty of contempt of court for in one motion and dismissed the Defendant-Appellant's other contempt motion. She further granted all four branches of the Plaintiff's contempt motion of January 10, 2007. The Defendant-Appellant then objected to Judge Mason on July 27, 2010 and supplemental objections to the Magistrate's Decision on September 8, 2010. Oral arguments were heard by the Trial Court upon the Defendant-Appellant's objections on November 1, 2010. The Trial Court, in its decision, overruled and dismissed the Defendant-Appellant's contempt motion of November 6, 2006 because he 5
failed to prove his case by clear and convincing evidence. The Trial Court next overruled the Defendant-Appellant's next objection concerning his contempt action of January 4, 2007. In this objection, the Defendant-Appellant argued that the Trial Court should not require him to abide by the terms of his own Agreed Judgment Entry of October 16, 2008. The Defendant-Appellant next objected to all four of the Magistrate's finding concerning the contempt of court actions filed by the Plaintiff-Appellee. The first one dealt with his being found in contempt for failure to pay his portion of uninsured medical expenses for the children in the amount of $1279.18, plus $1500.00 in attorney fees. In its Decision, the Trial Court sustained the Defendant-Appellant's objection in part because although it found that Defendant-Appellant was still in contempt of court, there were setoffs. The Trial Court next offset its award of $1500.00 in attorney fees against those awarded to Defendant in his January 4, 2007 contempt, and fashioned a jail sentence and purge Order. The next objection dealt with Defendant-Appellant improperly filing and refusing to remove affidavits of interest, essentially revoking the Quit Claim deed, relating to real estate awarded to Plaintiff-Appellee in the divorce decree. The Trial Court had ordered Defendant-Appellant to remove said affidavits of interest via a Quit Claim deed. Defendant-Appellant refused to do so. To date, Defendant-Appellee still had not removed the affidavits of interest from Plaintiff-Appellee's real estate. Consequently, the Trial Court granted the Plaintiff-Appellee's contempt motion against Defendant-Appellant; ordered him to cancel, rescind, and negate the effect of the affidavits of interest and file a Quit Claim deed by March 15, 2011. Defendant-Appellant was further ordered to pay the 6
Plaintiff-Appellee $1500.00 in attorney fees within 30 days of the filing of the Judgment Entry. The Defendant-Appellant next objected to Branch II of the Plaintiff-Appellee's contempt motion concerning his failure to pay, indemnify and hold Plaintiff-Appellee harmless upon taxes, interest, penalties and attorney fees relating to the filing of the parties' joint 1997 income tax return. The Magistrate had found Plaintiff-Appellant in contempt, but the Trial Court sustained this objection in part reducing the amount allowed for Plaintiff-Appellee's attorney fees to $4093.00 for her defense of this issue before the IRS after the effective date of the Divorce Decree. The Trial Court further Ordered the Defendant-Appellant to pay $3000.00 for attorney fees and costs related to this matter. Defendant-Appellant was further Ordered to liquidate the balance due at the rate of $1500.00 per month, until said balance was liquidated. The first payment was due 60 days from the filing of the Court's Judgment Entry. Defendant-Appellant subsequently filed his Notice of Appeal in this matter to the Tenth District Court of Appeals, and was overruled. The Tenth District Court of Appeals noted that this was the THIRD time this matter had been before them. They found no abuse of discretion and no plain error and overruled all five Assignments of Error. 7
ARGUMENT The Plaintiff-Appellee asserts that in appeals to its tribunal from the lower Courts of Appeal, that it can or will may exercise jurisdiction in the following cases: A. Cases involving questions arising under the Constitution of the United States of America, or of the State of Ohio. Ohio Constitution Article 4, Section 2(B)(2)(a)(i); B. In appeals from Courts of Appeals in cases of filing on leave which has been first obtained. Ohio Constitution Article 4, Section 2(B)(2)(b); C. In direct appeals from Courts of Appeal where the death penalty has been imposed. Ohio Constitution Article 4, Section 2(B)(2)(c); D. In cases of great public interest where the Ohio Supreme Court has directed a lower Court of Appeal to certify its record. Ohio Constitution Article 4, Section 2(B)(2)(e); E. In case certified by a Court of Appeals as being in conflict with a judgment in another Court of Appeal. Ohio Constitution Article 4, Section 2(B)(2)69. F. In addition, the Ohio Supreme Court has reviewing jurisdiction of the proceedings of Ohio Administrative Officers and agencies as may be conferred by law.. Ohio Constitution Article 4, Section 2(B)(2)(d). The case at bar represents an appeal from the Tenth District Court of Appeals in Franklin County, Ohio. The initial appeal arose from numerous Contempt of Court findings by the Trial Court against the Defendant-Appellant on February 28, 2011. The Tenth District Court of Appeals next affirmed the Decision of the Trial Court on February 2, 2012. In its Decision, the Tenth District Court of Appeals noted that it was the third time that the Defendant-Appellant had appealed from a Decision of the Trial Court. Moreover, on each occasion, the Defendant-Appellant had then unsuccessfully attempted to obtain certification to the Ohio Supreme Court through a discretionary appeal (see 8
Brooks v. Lee I, 106 O.S. 3d 1545 (2005); and Brooks v. Lee II, 115 O.S. 3d 1410 (2007). This is now the Defendant-Appellant's third attempt at certification of his claims to the Ohio Supreme Court. In the case at bar, it is clear that the Defendant-Appellant has no issue which would entitle him to an appeal to this tribunal as of right. Instead, he again asserts that this Court should hear his discretionary appeal because he presents a question of great public interest...that being that more than one interpretation exists for trial courts when applying the law to a contempt motion and then fashioning the requisite purge order thereafter. It is interesting to note that the Defendant-Appellant attaches no case law to support his contention that trial courts throughout the State of Ohio interpret the law on contempt motions differently. Instead, he argues that trial courts need guidance in the application of common facts patterns to the terms of a divorce decree. Essentially, the only fact pattern which the Defendant-Appellant would need deem that a trial court would need guidance upon, is his own fact pattern. He has disagreed with the consistent contempt findings of the Magistrate; the Trial Judge; and now the Tenth District Court of Appeals. His arguments are specious, vapid and disingenuous. The law conoerning contempt of court findings in a civil case is clear and unequivocal. It is as follows: A Contempt of Court finding results when a party before the Court disregards or disobeys an Order or a command of a judicial authority; Flowers v. Flowers, Case No. 10AP-1176; 2011 Ohio 5974 (10`h Appellate District). Contempt of Court may also 9
involve an act or omission which substantially disnxpts the judicial process in a particular case; In re Davis, 77 O. App. 3d 257 (1991) at pg. 262. The law surrounding contempt was created to uphold and to ensure the effective administration of justice, secure the dignity of the Courts, and affirm the supremacy of law; Casmer v. Petrie, 70 O.App. 3d 131 at pg. 133 (1994). Contempt may be characterized as either direct or indirect Sansom v. Sansom, Case No. 05AF-645; 2006 Ohio 3909 (10th District-2006). Direct contempt occurs in the presence of the Court and obstructs the administration of justice, Id at paragraph 23. Indirect contempt occurs outside the presence of the Court, and demonstrates a lack of respect for the Court and its lawful Orders, Id. Courts may further classify contempt as civil or criminal, depending upon the character and purpose of the contempt sanctions, Sansom at paragraph 24. Civil contempt is remedial or coercive in nature and will be imposed to benefit the complainant; Push v. Push, 15 O.S. 3d 136 (1984). The burden of proof is clear and convincing evidence, Sansom, Id. A sanction for civil contempt must provide the contemnor the opportunity to purge himself of the contempt, Id. The Court has even stated that the contemnor carries the keys of his prison in his own pocket since he will be freed if he agrees to do as so ordered; Brown v. Executive 200, Inc., 64 O.S. 2d 250 (1984). By contrast, criminal contempt sanctions are not coercive, but punitive in nature; State ex rez. Corn v. Russo, 90 O.S. 3d 551 (2001). Such sanctions are designed to punish past affronts to the Court, and to vindicate the authority of law and the Court; Sansom, supra at pg. 670. Consequently, criminal contempt is usually characterized by 10
an unconditional prison sentence, and the contemnor is not afforded an opportunity to purge himself of his contempt; Brown, supra, at pg. 254. The burden of proof for a criminal contempt requires proof of a purposeful, willing or intentional violation of a trial court's order; Sansom, supra, at paragraph 25. Normally, contempt proceedings in domestic relations cases are remedial and civil in nature because their purpose is to coerce or encourage future compliance with the Court's orders and because they concern behavior that occurs outside the presence of the Court; Foley v. Foley, Case No. 05AP-242, 2006-Ohio-946 (10ffi Appellate District, 2006). When a Court of Appeals reviews the finding of contempt, including a trial Court's imposition of penalties, an Appellate Court must apply an abuse of discretion standard; In re Contempt ofmorris, 110 O.App. 3d 475 (1996). Consequently, an abuse of discretion connotes more than an error of law or judgment; it implies that the trial Court's attitude is unreasonable, arbitrary or unconscionable; Blakemore v. Blakemore, 5 O. St. 3d 217 (1983). Therefore, in response to all five of the Defendant-Appellant's arguments, the record clearly shows that the contempt findings by the Trial Court, and affirmed by the Tenth District Court of Appeals were garnered by clear and convincing evidence of the guilt of the Defendant-Appellant. Moreover, the sanctions imposed by the Trial Court were coercive rather than punitive; and were designed to enforce the Appellee's rights under the parties' Separation Agreement and Divorce Decree. The purpose was to benefit the Plaintiff-Appellee rather than to punish the Defendant-Appellant. Further, in every case, the Defendant-Appellant was offered an opportunity to purge his contempt. 11
Essentially, in his arguments to this tribunal, the Defendant-Appellant challenges the extent of the evidence supporting the Trial Court's contempt findings which were upheld by the Tenth District Court of Appeals. In every case, these challenges must fail because all of the contempt findings were supported by competent, credible evidence which clearly demonstrated that the Defendant-Appellant should be found in contempt. In Argument I, the evidence clearly showed that the Defendant-Appellant had been provided copies of the children's medical bills and proof of the Plaintiff-Appellee's payments for the same for several years. His specious argument was that despite the fact that the doctor's bills showed the payments of the Plaintiff-Appellee; he did not receive a copy of the front and rear of her actual checks. In his second Argument, the Defendant-Appellant argues that the Plaintiff- Appellee never showed proof that he had violated the mandates of the Divorce Decree. Again, his arguments are both disingenuous and filed with prevarication. This is because he had agreed to quit-claim his interest in the parties' marital residence in the parties' Separation Agreement in 2001. The parties' Separation Agreement was then incorporated into the final Divorce Decree by the Trial Court in 2003. This was affirmed by the Tenth District Court of Appeals on the appeal of the Defendant-Appellant. Despite this, the Defendant-Appellant filed affidavits in the Recorder's Office which alleged that he had an interest in the marital real estate. These affidavits clouded the title of the real estate after this Decision. He next consistently refused to revoke the affidavits despite being informed by the Plaintiff-Appellee that such affidavits rendered it 12
impossible to either refinance or sell the real estate. Essentially, the Defendant- Appellant, a lawyer and Officer of the Court, has refused to remove the cloud that he placed upon the title to this real estate in a diabolical attempt to interfere with the smooth administration of justice and in addition, he has undermined the authority of the Court. The Defendant-Appellant's fourth proposition of law relates to his failure to pay for the Plaintiff-Appellee's attorney fees for a tax issue that arose pursuant to the Divorce Decree. It was uncontroverted at the trial level that the Defendant-Appellant was solely responsible (per the Separation Agreement incorporated into the Divorce Decree) for any tax interest or penalties arising from the filing of the parties' joint 1997 Federal tax returns. Plaintiff-Appellee hired a tax attomey to compel the IRS to grant her "innocent spouse relief' under the tax code. This was granted to her and she was absolved of all personal liability. Thereafter, in contravention of the parties' Separation Agreement, Defendant-Appellant also filed for innocent spouse relief. His actions essentially challenged the award of innocent spouse relief to the Plaintiff-Appellee. Consequently, Plaintiff-Appellee was compelled to appear and to contest Defendant-Appellant's request. Consequently, the portion of the Defendant-Appellant's argument contesting his responsibility under the Divorce Decree is res judicata. He is therefore prohibited from challenging the enforceability of the portion of the parties' Agreement some nine years later; Grava v. Parkman Twp., 73 O.S. 3d 379 (1995). As a consequence, the parties' agreement clearly contemplated that not only would Defendant-Appellant be responsible for all interest, tax and penalties associated with a 1997 joint tax return; the evidence clearly demonstrates that Defendant-Appellant 13
knew this, and in a letter to Plaintiff-Appellee, clearly acknowledged that he indeed owed her some attomey fees. He again, simply refused to pay them. Consequently, as with all of his arguments, he requests that this reviewing Court reverse the Court of Appeals Decision upon the sole basis that it should substitute its judgment for that of the Court of Appeals. He offers no error of law, nor does he offer any legitimate ground for reversal. Therefore, he offers absolutely no basis for this Court to review the Decision of the Tenth District Court of Appeals. As to Defendant-Appellant's final "proposition of law", he argues that a Trial Court must delineate a method of his purging his contempt which consists of legitimate actions which do not require him to violate any criminal statutes. Essentially, he is referred to the contempt finding where he clouded the title to Plaintiff-Appellee's real estate. He is specifically referring to the Trial Court's Purge Order which requires him to remove and/or rescind the affidavits which he previously filed with the Franklin County Recorder's Office attesting that he had an interest in the real estate which was awarded to the Plaintiff-Appellee in the parties' Separation Agreement which the Trial Court incorporated into its Divorce Decree. In response, the Plaintiff-Appellee would first note that this issue was resolved in the initial divorce case. Moreover, this issue was never raised before the Magistrate, nor to the Trial Court, therefore, the issue raised herein is moot and must be dismissed. However, even assuming arguendo, that this was not so, the Defendant- Appellant's argument literally transcends reality! 14
It is disingenuous that a seasoned lawyer could legitimately argue that despite the clear language of the Divorce Decree, that he could file not one, but two subsequent affidavits which clouded the title to this real estate, and then later argue that he cannot rescind them because "they were true at the time". Again, a gross prevarication. The fact is that Plaintiff-Appellee is even reluctant to dignify this specious argument with any further comment. It is clear that the Defendant-Appellant has grossly interfered with the Trial Court's smooth administration of justice and that he has undermined the dignity and authority of the judiciary. He simply advances no credible argument which can demonstrate the validity of his position or which raises a question of greater public interest. Accordingly, the Decision of the Tenth District Court of Appeals should be upheld, and the Defendant-Appellant's request for the cert^ication for his personal issues should be dismissed. Vincei. ugan, Jr. Supreme Court Reg. No. 0025982 Attorney for Plaintiff-Appellant 923 East Broad Street Columbus, Ohio 43205 (614) 222-8200 CERTIFICATE OF SERVICE If /^ This is to certify that a true and accurate copy of the oregoing was served on Defendant-Appellant at 705 E. Liv^on Avenue, Colufrfi Ohio 43205, by regular U.S. Mail, postage prepaid, this ^ uy of April, 201 15