
    SULLIVAN v. SULLIVAN et al. 
    Court of Common Pleas of Ohio, Montgomery County, Division of Domestic Relations.
    No. DM-83-986.
    Decided Jan. 18, 1996.
    
      
      Nancy Randolph, pro se.
    
   V. Michael BRIgner, Judge.

This case is before the court as a result of the order to show cause and notice of hearing filed November 14, 1995. In that order, the court, upon its own motion, found the Montgomery County Support Enforcement Agency (“SEA”) had been ordered on September 21, 1995, to provide Constance M. Sullivan, the obligee herein, with legal representation at the hearing of October 20, 1995, and had failed to do so, thereby preventing the obligee from obtaining any relief at the hearing. For the reasons stated below, the court finds that the SEA and its Director, third-party defendant Nancy Randolph, could not possibly perform as ordered, and therefore concludes there can be no contempt.

The Statutory Basis for Enforcement of Spousal Support

The court begins its review with the statutory establishment and duties of the SEA. The Montgomery County SEA is a creature of statute, established pursuant to R.C. 2301.35. Subsection (C) provides that the SEA “is the local Title IV-D agency for the county and shall operate a program for support enforcement.” (Emphasis added.) The program shall be operated under the supervision of the Ohio Department of Human Services in accordance with R.C. 5101.31. The SEA is responsible “for the collection of payments due under support orders, and shall perform all administrative duties related to the collection of payments due under any support order.” (Emphasis added.) To accomplish these tasks, the SEA “may enter into contracts with public agencies and private vendors for the collection of amounts due under support orders.” (Emphasis added.)

“Support” is defined at R.C. 3113.21(P)(7) and Ohio Adm.Code 5101:1-30-411 to mean “child support, spousal support and support for a spouse or former spouse.” This same section of the Revised Code sets forth detailed procedures for collection, investigation, and enforcement of "both child and spousal support.

Furthermore, R.C. 5101.31 provides:

“(B) The division of child support shall establish, by rule adopted pursuant to Chapter 119. of the Revised Code, a program of spousal support enforcement in conjunction with child support enforcement. The program shall conform, to the extent practicable, to the program for child support enforcement established pursuant to division (A) of this section.”

The Ohio Department of Human Services has propounded regulations, pursuant to its administrative rule-making authority, which provide:

“5101:1-29-06. CHILD SUPPORT ENFORCEMENT AGENCY SERVICES TO NON IV-D CASES
“(A) The child support enforcement agency (CSEA) shall provide services to non-IV-D cases, including alimony-only orders. Except for services unique to IV-D cases, non-IV-D cases shall receive services in a manner consistent with IV-D policy and procedures.
“(B) Due to restrictions in federal and state law, the following CSEA services shall not be provided to non-IV-D cases:
“(1) Location services provided by the Ohio parent locator service and the federal parent locator service;
“(2) Establishment or modification of orders for support which do not include children;
“(3) Federal income tax refund offset and state income tax refund offset submittals for the collection of support arrearages;
“(4) Withholding of unemployment compensation for the payment of support;
“(5) Requests to the internal revenue service for the disclosure of taxpayer information for use is establishing and collecting support obligations;
“(6) Requests to the internal revenue service for the collection of delinquent support;
“(7) Requests for certification to the U.S. district court when another state has failed to act on an Ohio court order for support.”

Based upon the foregoing, the court concludes that the SEA has both the authority and obligation to handle collection, distribution, and enforcement of support, which includes spousal support-only cases. The court is cognizant that such cases and all activities on such cases are not and cannot be Title IV-D. However, the SEA is more than simply the Title IV-D agency for the county, as shown above, and has obligations beyond the scope of that federal program. Indeed, in Montgomery County, the SEA adopted its name, as opposed to being called the “Child Support Enforcement Agency” (“CSEA”), specifically because it collects and enforces support other than child support. Unfortunately, with this obligation comes no funding from the Title IV-D program, and no clearly defined program and funding scheme from the state of Ohio. Likewise, because of a lack of funding, the SEA has no contracts in place with public or private agencies for enforcement of spousal support.

Accordingly, the court concludes that there is a legal basis for requiring the SEA to enforce spousal support obligations. Although not a Title IV-D activity, there is a statutory requirement for providing enforcement, even if there is no funding mechanism similar to Title IV-D.

The Prior Request For and Receipt of Services

Before the SEA takes any action to enforce a nonpublic assistance support order, other than to show a default, a party typically requests the enforcement action. Thereafter, an investigation is conducted and the appropriate advance notice (ODHS 4049) is transmitted to the court.

In the case before the court, a review of the file shows a plethora of enforcement activities by the BOS/SEA on the obligee’s behalf. Motions to show cause were filed by the prosecutor’s office on behalf of the obligee on August 23, 1984, April 22, 1985, June 18, 1986, and February 26, 1987. A “Findings and Recommendation of Support Enforcement Agency” was filed on August 6, 1990. Furthermore, the court has taken action several times when the SEA has notified the court that the obligor, William J. Sullivan, has been in default.

Therefore, the court finds that the obligee has requested enforcement services, which have been provided, and that the BOS/SEA has taken action under R.C. 2301.37 and 3113.21 to enforce this support obligation.

The Finding of Impossibility

The SEA correctly notes that it has no counsel on staff or under contract to represent obligees on non-IV-D cases such as this. The contract with the Montgomery County Prosecutor’s Office is for Title IV-D cases only. The SEA further correctly states that it has taken “administrative” action under R.C. 3113.21 as required by law. As a result, the SEA explains that it has no ability to go beyond the recent activities and provide counsel for the obligee because of staffing and funding limitations.

It is a settled principle of law that the impossibility of performing an action is a defense to any charge of contempt for failure to so perform. See Butler Cty. Bd. of Commrs. v. State ex rel. Davis (1918), 9 Ohio App. 105; Peters v. Peters (1962), 115 Ohio App. 443, 21 O.O.2d 68, 26 O.O.2d 66, 183 N.E.2d 431. Such an impossibility must be beyond the creation of the contemnor.

In this instance, the court finds that although a statutory duty exists to provide enforcement services in alimony-only cases, and although the BOS had funding and counsel available in past years, the SEA at this time has neither allocated funds for these services nor hired counsel to provide them. Therefore, it was impossible for the SEA to comply with the court’s order of September 21, 1995.

The court further finds that the SEA collects public funds from at least three sources other than Title IV-D, those being Montgomery County budget allocations, the two percent service fee collected in all support cases (including alimony-only cases), and interest earned on moneys in the agency’s depository account.

ORDER

Therefore the court orders that:

1. The Support Enforcement Agency and its Director be found not in contempt of this court’s order of September 21,1995.

2. The Support Enforcement Agency shall continue to comply with the statutory requirements of R.C. 2301.37 and 3113.21 with appropriate investigations, notices, and transmittals to the court.

3. The Support Enforcement Agency shall provide an auditor and/or investigator for all hearings scheduled by the court to enforce spousal support obligations which are a result of the investigations, notices, and transmittals to the court.

4. The Support Enforcement Agency shall reallocate existing funds or seek additional appropriate funding from the funding authority for staff or contracts necessary to implement its statutory duty to enforce spousal support pursuant to R.C. 5101.31 and Ohio Adm.Code 5101:1-29-06. The SEA shall within one hundred twenty days of this entry, provide to the court a written report of how the SEA plans to provide to all spousal support recipients, all services which it is mandated to provide pursuant to statute and the Ohio Administrative Code.

5. This case shall be set for hearing on the issue of nonpayment of spousal support by separate entry and order.

6. Copies of this entry and order shall be mailed to all parties listed below on the date of filing.

Judgment accordingly.  