[Cite as Galluzzo v. Galluzzo,

.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

TERESA A. GALLUZZO (nka Cook) :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 43

v. : T.C. NO. 93DR247

MICHAEL A. GALLUZZO : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellant :

:

..........

OPINION

Rendered on the 23rd day of August , 2013.

..........

MARK FEINSTEIN, Atty. Reg. No. 0065183, 214 Scioto Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

MICHAEL A. GALLUZZO, P. O. Box 710, St. Paris, Ohio 43072 Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Michael

Galluzzo, [Cite as Galluzzo v. Galluzzo,

.] filed December 7, 2012. Galluzzo appeals from the trial court’s November 9, 2012

decision, issued following a contempt proceeding, that ordered Galluzzo to perform 40 hours

of community service as a result of his failure to pay court costs. We hereby reverse and

vacate the decision of the trial court.

{¶ 2} On July 20, 2012, the trial court issued a journal entry that provides that

Galluzzo “has failed to pay his outstanding Court costs in the above-captioned matter. The

Clerk has sent a fee statement to Defendant on three (3) separate occasions.” The court

indicated that Galluzzo owes $986.97 and set the matter for a “show cause hearing” on

October 5, 2012.

{¶ 3} On August 3, 2012, Galluzzo requested a continuance, and the trial court

denied his request. On September 6, 2012, Galluzzo filed a “Motion to Dismiss Hearing”

that provides as follows:

* * * Defendant is indigent. Defendant is entitled to $751 per month

in Social Security. The state garnishes $209.80 per month for alleged child

support * * * leaving me with only $505.20 to try and survive on.

In October 2012, the Social Security Administration will begin taking

an additional $99.90 per month for Medicare Insurance. That will leave the

Defendant with $405.20 per month to live on.

It is a complete waste of the court[’]s time and resources to proceed

with this hearing since the Defendant is indigent and there is no money for

court costs.

On September 13, 2012, the trial court overruled Galluzzo’s motion.

{¶ 4} At the hearing, Galluzzo asserted that he is indigent and provided 3

information about his income and expenses. The following exchange occurred:

THE COURT: * * * Your expenses you’ve given me under oath

you’re definitely running about $150 short every month.

THE DEFENDANT: Yeah.

THE COURT: I understand that. But I feel like if you can’t help our

community by paying for the time that the Court has given you, community

service would be appropriate. And I’m willing to exchange the community

service for the payment of court costs. I would ask for a total of 40 hours

and then this matter would be closed.

THE DEFENDANT: That won’t work.

THE COURT: Well, that’s what I’m ordering, and you’ll have six

months to complete it.

THE DEFENDANT: Your Honor.

THE COURT: Yes, sir.

THE DEFENDANT: May I direct you to State v. Glasscock where the

court found that court costs are in the nature of a civil debt. Requiring a

defendant to work them off by performing community service would be

imprisonment for debt. That would be a violation of Article I, Section 15 of

the Ohio Constitution.

THE COURT: I’m ordering 40 hours of community service.

{¶ 5} Galluzzo asserts two assignments of error herein, which we will consider

together. They are as follows: [Cite as Galluzzo v. Galluzzo,

.] “AS A MATTER OF LAW, THE COURT COMMITTED PLAIN ERROR IN

ATTEMPTING TO USE THE COERCIVE POWERS OF THE COURT, WITHOUT

STATUTORY AUTHORITY, TO COLLECT COSTS.”

And,

“AS A MATTER OF LAW, THE COURT COMMITTED PLAIN ERROR BY

ORDERING COMMUNITY SERVICE TO ‘WORK OFF’ COSTS.”

{¶ 6} In State v. Glasscock,

,

(4th Dist.

1993), the Fourth District noted as follows:

* * * In Strattman v. Studt (1969),

,

,

, the court held that a major distinction

between fines and court costs exists. The court noted that because court

costs are civil debts and because Section 15, Article I of the Ohio

Constitution prohibits imprisonment for civil debt, courts may not imprison

people for their failure to pay court costs. Similarly, we find courts may not

order people to work to pay off court costs. See, also Strongsville v.

Waiwood (1989),

,

, where the

court followed Strattman and held that trial courts may only collect court

costs “by the methods provided for the collection of civil judgments.” We

are aware of no authority permitting a court to order a civil debtor to perform

community service to pay off a debt.

{¶ 7} This Court further has noted as follows:

“‘[A]lthough trial courts have the authority to enforce their orders

through contempt proceedings, R.C. 2705.02, an order to pay court costs is 5

essentially a judgment on a contractual debt where the court is the creditor

and the party ordered to pay court costs is the debtor. As such, the creditor,

i.e., the court, can collect only the money it is due by the methods provided

for the collection of civil judgments. A contempt proceeding is not a proper

method by which to collect a civil judgment. In re Buffington (1939),

,

, citing Heidleberg College v. Depew

(1988),

,

.’” Id. at ¶ 13. State v. Ellis, 2d

Dist. Montgomery No. 22189,

.

{¶ 8} We agree with Galluzzo that the trial court erred in employing a

contempt proceeding to collect a civil judgment, and that it lacked authority to order him to

perform community service. Plain error is demonstrated, and Galluzzo’s assigned errors are

sustained. The judgment of the trial court is reversed and vacated.

..........

FAIN, P.J. and FROELICH, J., concur.

Copies mailed to:

Mark Feinstein Michael A. Galluzzo Hon. Lori L. Reisinger