Guardianship of Derakhshan, In re, 95-L-127

• Decision Date: 01 April 1996
• Docket Number: No. 95-L-127,95-L-127
• Citation: 673 N.E.2d 954,110 Ohio App.3d 190
• Parties: In re GUARDIANSHIP OF DERAKHSHAN et al.
• Court: Ohio Court of Appeals

Page 190

110 Ohio App.3d 190

673 N.E.2d 954

In re GUARDIANSHIP OF DERAKHSHAN et al.

No. 95-L-127.

Court of Appeals of Ohio,

Eleventh District, Lake County.

Decided April 1, 1996.

Stanley Morganstern and Lynn B. Schwartz, Cleveland, for appellant.

Hackenberg & Collins and I. James Hackenberg, Painesville, guardian ad litem.

FORD, Presiding Judge.

Appellant, Linda Jaenson, appeals from a judgment of the Lake County Court of Common Pleas, Probate Division, which overruled appellant's application for authority to expend funds from a guardianship estate.

Appellant and Iraj Derakhshan were divorced on May 26, 1988. Appellant was awarded custody of Jamal Derakhshan, born November 26, 1979, and Bijan Derakhshan, born November 11, 1981. The domestic relations court's supplemental order reads, in part:

"IT IS FURTHER ORDERED AND ADJUDGED that the assets of the parties previously described in the Referee's Report of January 4, 1988 * * * are deemed to be prepaid child support and shall be held for the benefit of the two (2) minor children, Jamal and Bijan Derakhshan, and a Guardianship shall be established in the Probate Court of Lake County and the Guardian shall be appointed to take possession of all the assets designated herein * * *.

"IT IS FURTHER ORDERED AND ADJUDGED that any funds collected for unpaid child support arrearages accrued shall be part of the Guardianship estate.

"IT IS FURTHER ORDERED AND ADJUDGED that any arrearage for unpaid child support or alimony reflected on the Child Support Enforcement Agency records shall be brought forward and Plaintiff granted judgment in favor of the Plaintiff against the Defendant, Iraj Derakhshan, in the amount of $39,132.28 plus interest.

" * * *

"IT IS FURTHER ORDERED AND ADJUDGED that said Guardianship assets shall not be subject to execution by any of the creditors of Linda Jaenson or Iraj Derakhshan but shall be only used as and for the support of the minor children.

" * * *

"IT IS FURTHER ORDERED AND ADJUDGED that until modified, the order of support for each of the minor children shall continue at $100.00 per week, per child, to be paid from the assets held in the Guardianship or from the husband, should circumstances permit the collection thereof, provided that this provision shall be subject to modification by this court which shall maintain continuing jurisdiction over the support and custody matters herein. Payment of medical and dental expenses shall be subject to rules of Court governing the Guardianship * * *." (Emphasis added.)

Appellant filed her application for appointment of guardian on May 31, 1989, and letters of guardianship were issued on July 31, 1989. On June 18, 1995, the domestic relations court granted appellant's motion to reduce child support arrearages to a lump sum judgment ($108,910.28), and for disbursement and payment of current support ($400 per week). Appellant submitted an application for authority to expend funds for the amount of the judgment on July 6, 1995. The probate court overruled appellant's application in part, holding that the lump sum and ongoing support funds were not legitimate expenditures with respect to the guardianship. The probate court reasoned that the general division of the common pleas court lacked subject matter jurisdiction over the probate court and further reasoned that the funds belonged to the wards.

Appellant raises the following single assignment of error:

"The trial court erred in denying, in part, appellant's application for authority to expend funds."

As a preliminary matter, we note that the judgment entry ordering the lump sum payment was issued by the domestic relations division, not the general division as stated in the probate court's judgment entry. We will review the assigned error on this basis.

The instant case concerns the overlapping jurisdiction between the probate court and the domestic relations court and, in particular, the propriety of the extension of authority by each court with regard to the funds denominated as prepaid child support. The central issue is whether the probate court properly overruled the motion for distribution of funds from the guardianship estate.

Initially, we will review the validity of the domestic relations court's judgment. Under R.C. 3105.011, "[t]he court of common pleas[,] including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters." The court's jurisdiction includes the determination and modification of child support. R.C. 3109.05. The Supreme Court of Ohio held in Corbett v. Corbett (1930), 123 Ohio St. 76, 174 N.E. 10, paragraph two of the syllabus, that a divorce decree providing for the custody and support of minors during minority "continues the jurisdiction of the [domestic relations] court for such period without any express reservation in the decree itself." The domestic relations court is also bound to adjudicate any matters involving minors subject to its jurisdiction in accordance with the best interests of the child. R.C. 3105.21(A).

In certain cases where divorce decrees have provided for child support payments, courts, on occasion, have established trusts as an equitable means of facilitating the disbursement of child support, and these trusts have been held valid. See Breisach v. Breisach (1930), 37 Ohio App. 34, 173 N.E. 317; Stemple v. Stemple (1967) 12 Ohio Misc. 147, 41 O.O.2d 203, 230 N.E.2d 677. Courts have validated the trusts based on inferences from the statutes giving the domestic relations courts broad authority to make proper dispositions of the property and parties before them. Stemple. We determine that the guardianship established for the purpose of facilitating child support payments in the instant cause was valid pursuant to the implicit authority granted to the domestic relations court under R.C. 3105.011 and R.C. 3105.21.

In Smith v. Smith (1959), 168 Ohio St. 447, 7 O.O.2d 276, 156 N.E.2d 113, paragraph one of the syllabus, the Supreme Court of Ohio announced the rule regarding lump sum judgments for child support:

"The amount of past due and delinquent installments remaining due and owing on an installment child-support order or judgment is fixed and unalterable on the date the last installment payment becomes due and owing; and at that time the payee of the installment support order or judgment has an absolute right to have all past due and delinquent installment payments reduced to a 'lump-sum' judgment on which execution may be lawfully levied." (Emphasis added.)

The domestic relations court "does not lose jurisdiction to enforce the payment of unpaid and delinquent installments on an installment support order or judgment, upon the attainment of majority by the minor for whose benefit the support order was made." Smith, paragraph two of the syllabus. "Since installment support payments may not be modified [retroactively], the court can accurately reduce the arrearages to a lump-sum judgment at any time." Bercaw v. Bercaw (1989), 45 Ohio St.3d 160, 162, 543 N.E.2d 1197, 1199. R.C. 2329.02 provides that "any judgment issued in a court of record may be transferred to any other court of record. Any proceedings for collection may be had on such judgment the same as if it had been issued by the transferee court."

In Kosen v. Kosen (App.1942), 36 Ohio Law Abs. 156, 23 O.O. 449, 42 N.E.2d 778, the domestic relations court awarded child support in a divorce decree. Later, the mother remarried and the stepfather adopted the child. The child's biological father argued that the domestic relations court had no authority to reduce arrearages to a lump sum judgment because the child had been adopted and the authority of the domestic relations court over the subject matter had been extinguished. The Eighth District Court of Appeals held that the domestic relations court retained jurisdiction over the parties to the divorce, the former husband and wife, and also over its order including those payments that were past due. Id.

In Zinn v. Zinn (App.1934), 17 Ohio Law Abs. 508, a former wife obtained a judgment for alimony, payable in installments, prior to the establishment of a guardianship for her former spouse. The domestic relations court established a lien upon all of the ex-husband's property as a means to secure the payment. The wife then caused the issuance of an order of sale with respect to the husband's guardianship property. The guardian argued that the common pleas court had no authority to execute judgment against the guardianship estate since the guardianship was within the exclusive jurisdiction of the probate court. The probate court sustained the guardian's motion to have the order of sale revoked. The Second District Court of Appeals reversed and held that a judgment for alimony which created a lien on all of the husband's property prior to the establishment of a guardianship does not transfer absolute jurisdiction over the ward's property to the probate court, thereby preventing an execution sale by order of the court of common pleas. Id.

We determine that the domestic relations court retained subject matter jurisdiction over the portion of the guardianship estate classified as prepaid child support. Further, we conclude that the judgment reducing the child support arrearages to a lump sum was properly issued within the statutory authority of the domestic relations court. These determinations are based on several factors. First, the judgment was issued within the scope of the domestic relations court's continuing subject matter jurisdiction regarding child support. The supplemental order contained unambiguous language regarding the continuing jurisdiction retained by the domestic relations court over the funds denominated as prepaid child support. Further, the sequence of events is critical. The child support order was established before the guardianship was established and while...