Estate of Antkowiak, In re

• Citation: 642 N.E.2d 1154,95 Ohio App.3d 546
• Decision Date: 24 June 1994
• Docket Number: No. L-93-270,L-93-270
• Parties: In re Estate of ANTKOWIAK. JANOWIECKI, Appellant, v. LUCAS COUNTY CHILD SUPPORT ENFORCEMENT AGENCY et al., Appellees.
• Court: United States Court of Appeals (Ohio)

Page 546

95 Ohio App.3d 546

642 N.E.2d 1154

In re Estate of ANTKOWIAK.

JANOWIECKI, Appellant, v. LUCAS COUNTY CHILD SUPPORT ENFORCEMENT AGENCY et al., Appellees.

No. L-93-270.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided June 24, 1994.

Connie Zemmelmen, Toledo, for appellant.

Anthony G. Pizza, Lucas County Pros. Atty., and Michael P. Mikkonen, Asst. Pros. Atty., for appellee Lucas County Child Support Enforcement Agency.

Gary O. Sommer, Toledo, for appellee Michael Antkowiak.

SHERCK, Judge.

Appellant, Christian A. Janowiecki, files this appeal from an order of the Lucas County Court of Common Pleas, Probate Division, granting summary judgment to appellees, Lucas County Child Support Enforcement Agency ("LCCSEA") and Michael Antkowiak. Appellant, the adult son of decedent Jeanette Antkowiak, brought a declaratory judgment action seeking to have child support arrearages, accumulated during his minority, declared his separate property rather than part of the decedent's estate. The court denied summary judgment to the adult child and decided that the arrearage was a chose in action includable in the decedent's estate. Because we conclude that the right to collect arrearages in this matter belongs to the adult child, we reverse the trial court's decision.

Allan J. Janowiecki married Jeanette Antkowiak, f.k.a. Janowiecki, on October 6, 1972. During the course of the marriage, Jeanette gave birth to appellant, Christian A. Janowiecki. When the marriage ended in divorce in 1976, Jeanette received custody of appellant; the court ordered Allan Janowiecki to pay $25 per week child support. Jeanette later married appellee, Michael Antkowiak.

Allan Janowiecki did not make regular child support payments. By the time appellant approached the age of majority, support arrearages owed by Allan Janowiecki totaled several thousand dollars. At the same time, however, efforts by LCCSEA ¹ to collect Allan Janowiecki's support arrearages became more successful. By the fall of 1990, the agency established wage withholding through Allan Janowiecki's employer and received a steady stream of money, which LCCSEA applied to both current support and arrearages.

On November 6, 1990, Jeanette Antkowiak died testate, bequeathing her entire estate to appellee, Michael Antkowiak. On June 9, 1991, appellant became emancipated. In the intervening time, LCCSEA continued to collect current support and arrearages from Allan Janowiecki. LCCSEA holds these funds, along with arrearage amounts collected after appellant's emancipation, in escrow pending the final determination of this matter.

In October 1992, appellant filed a complaint for a declaratory judgment, naming LCCSEA as a defendant. Appellant sought a declaration that the funds held by LCCSEA were his separate property and not a part of his mother's estate. Appellee, Michael Antkowiak, sought, and was granted, leave to intervene. Appellee Antkowiak asserted that the LCCSEA funds were a part of the estate. Both parties moved for summary judgment.

The trial court declined to rule on the disposition of the funds collected prior to appellant's emancipation. The court said that the disposition of these funds was within the jurisdiction of the domestic relations division. The rest of the funds, however, the trial court declared were properly includable as assets of the decedent's estate. Accordingly, the trial court granted appellee's motion for summary judgment and denied appellant's. From this order, appellant appeals, setting forth the following single assignment of error:

"The trial court erred in granting appellee's motion for summary judgment and denying appellant's motion for summary judgment, thereby declaring the child support arrears to be an asset of decedent's estate."

Appellant's assignment essentially contests the validity of the summary judgment.

The rules governing summary judgment pursuant to Civ.R. 56 are well established. Three factors must be demonstrated:

" * * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. See, also, Johnson v. New London (1988), 36 Ohio St.3d 60, 61, 521 N.E.2d 793, 794-795.

In this matter, there exists no genuine issue of material fact. The case requires us to determine who, as a matter of law, is entitled to the arrearages: the estate of the deceased custodial parent or the adult child. This appears to be a case of first impression.

Appellee's argument, which was adopted by the trial court, is straightforward. Parents have a legal duty to support their minor children. When a marriage ends in a divorce or dissolution, one of the parents may be allocated the primary parental rights and responsibilities for the care of the child of that marriage. See R.C. 3109.04. This person is denominated the "residential parent," "the residential parent and legal custodian," or simply the "custodial parent." R.C. 3109.04(K)(2).

Generally, the noncustodial parent is ordered to pay periodic amounts in order to discharge his or her support obligation. R.C. 3109.05; 3113.215. In current language, this makes the noncustodial parent the "obligor" and the custodial parent the "obligee." It is presumed that when the obligor fails to make his support payments as ordered, the obligee or some public agency must assume that additional burden. Miller v. Miller (1991), 73 Ohio App.3d 721, 724-725, 598 N.E.2d 167, 169-170, citing Connin v. Bailey (1984), 15 Ohio St.3d 34, 15 OBR 134, 472 N.E.2d 328, and Smith v. Smith (1959), 168 Ohio St. 447, 7 O.O.2d 276, 156 N.E.2d 113. When this happens, the party who assumed that burden is entitled to recoup that payment from the obligated party. Id. Therefore, according to appellee, the right to collect arrearage payments is an asset belonging to the custodial parent and should be included in the parent's estate upon death. ²

Appellant basically agrees with appellee's premises, but focuses on the nature and purpose of child support to reach a different conclusion. At common law, and by statute, both parents of a child have a duty of support. Haskins v. Bronzetti (1992), 64 Ohio St.3d 202, 203, 594 N.E.2d 582, 583-584; In re Dissolution of Marriage of Lazor (1991), 59 Ohio St.3d 201, 202, 572 N.E.2d 66, 68-69. When the parents and the child live together, it is presumed that the father and the mother share equally the burden of a child's support. Id., 59 Ohio St.3d at 203, 572 N.E.2d at 69. Each parent's duty of support to the child continues, however, even though the marriage may be ended by divorce or dissolution. To properly allocate these duties between custodial and noncustodial parents, the court enters a support order. Id. The child is the beneficiary of this order. Peters v. Kozina (Dec. 18, 1981), Ottawa App. No. OT-81-7, unreported, 1981 WL 5869. The goal of the allocation is to establish a "monetary amount necessary for the support of the child in a standard of living commensurate with the * * * standard of living [the child] would have enjoyed had the marriage continued." Birath v. Birath (1988), 53 Ohio App.3d 31, 37, 558 N.E.2d 63, 69-70; see, also, R.C. 3109.05.

According to appellant, while it may be valid to presume that the custodial parent steps in to provide necessities for the child when a support obligor defaults, it is specious to assume that the custodial parent has the capacity to fully satisfy the deficiency to the extent that the child enjoys the standard of living he or she would have had if the marriage had not ended. It is the child, then, who has suffered by the obligor's failure to pay. Therefore, appellant argues, it is then the child to whom arrearages collected after his emancipation are owed, not his mother's estate.

As indicated in our introduction, this case presents a novel question. We have failed to find authority directly on point either within or without Ohio. The trial court, in reaching its decision, principally relied upon Miller v. Miller, supra which, in turn relied on the reasoning set forth in Connin v. Bailey, supra. The Fourth District Court of Appeals in Miller, while recognizing that the duty of support runs from parent to child, rather than from noncustodial parent to custodial parent, nonetheless held that when an obligor fails to make ordered payments it must be presumed that the custodial parent or some public agency assumed the additional burden. That, the court concluded, made the right to collect arrearages an asset of the custodial parent.

Appellant properly distinguishes Miller. That case involved a dispute between the custodial mother of an adult child and a county department of human services over the right to credit arrearages to an unrelated claim that the department had against the mother. The adult child was not a party to the proceedings. In noting this, the court of appeals specifically declined to hold that the same result would have occurred had the adult child presented a valid claim. Id., 73 Ohio App.3d at 724, 598 N.E.2d at 169-170. Similarly, appellant notes that Connin, from which the Miller court derived the presumption that a custodial parent assumed a defaulting obligor's duty of support, has as its sole issue the question of whether laches acts to bar collection of arrearages. Therefore, the discussion of such a presumption is merely dicta. We should also note that the Connin presumption encompasses only necessities.

In other jurisdictions and other applications, decisions are similarly unclear. Indiana courts have held that a subsequent husband of a deceased custodial parent had standing to bring an...