Kinney v. Mathias

• Citation: 10 Ohio St.3d 72,461 N.E.2d 901,10 OBR 361
• Decision Date: 11 April 1984
• Docket Number: No. 83-1010,83-1010
• Parties: , 10 O.B.R. 361 KINNEY, Appellant, v. MATHIAS, Appellee.
• Court: United States State Supreme Court of Ohio

Page 72

10 Ohio St.3d 72

461 N.E.2d 901, 10 O.B.R. 361

KINNEY, Appellant, v. MATHIAS, Appellee.

No. 83-1010.

Supreme Court of Ohio.

April 11, 1984.

This appeal involves a post-divorce motion filed by plaintiff-appellant, Cheryl Mathias Kinney, seeking to recover child support arrearages allegedly owing to her from defendant-appellee, John Mathias.

The parties to this appeal were married in 1962. Two children, Daun and Randall, were born of the marriage. The parties were divorced in 1966 and Mathias was ordered to pay $12.50 per child per week as support. Appellant married Gary Kinney in 1967 but there was no change in the legal status of the children.

In February 1967 appellant filed a motion to show cause why Mathias should not be held in contempt for failure to pay child support. She filed another such motion in October of the same year. By judgment entry of December 14, 1967, the lower court found that Mathias had been in contempt but that he had brought his payments up to date.

In 1968 Mathias moved to Massachusetts where Kinney was unable to locate him until late 1971 or early 1972. When she did locate him Kinney brought another contempt proceeding. Mathias paid a portion of the arrearage. In 1973 Mathias moved to Milwaukee, Wisconsin, but gave Kinney no notice of his new address. By this time, he had completely ceased paying child support to Kinney.

Mathias justified his failure to continue support payments by maintaining that he had signed a consent to adopt as part of an agreement with Kinney and that, as a result of this agreement, his responsibilities had terminated. The trial court found that Mathias' belief was in good faith as exemplified by the fact that the children were registered under the last name of Kinney. Kinney denied that there was ever such an adoption agreement. In fact, Gary Kinney never sought to adopt the children.

Later, Mathias moved to Cincinnati, once again without informing appellant of his address. Kinney admits using the ruse of an offer of adoption, with regard to Mathias' mother, in an attempt to locate his current address. When Kinney found Mathias' address in Cincinnati from his nephew she brought the current action.

The trial court granted Kinney a lump sum judgment in the amount of $13,861.97 and ordered Mathias to keep current his child support obligation of $12.50 per week on the remaining unemancipated child of the parties. Mathias appealed and the court of appeals reversed, holding that Kinney was barred from recovery by the defense of laches.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Hanna & Hanna and Drew A. Hanna, Bowling Green, for appellant.

John S. Cheetwood and Pamela A. Heringhaus, Bowling Green, for appellee.

PER CURIAM.

The sole issue presented by this case is whether the court of appeals erred in finding that the trial court's holding denying Mathias the defense of laches was clearly against the manifest weight of the evidence. This court concludes that the judgment of the trial court was supported by competent, credible evidence and, therefore, the court of appeals erred in reversing that judgment.

The law in Ohio is clear that an appellate court will not disturb the findings of the trier of fact unless they are against the manifest weight of the evidence. Landis v. Kelly (1875), 27 Ohio St. 567; State, ex rel. Shady Acres Nursing Home, Inc. v. Rhodes (1983), 7 Ohio St.3d 7, 70 O.B.R. 318, 455 N.E.2d 489. Moreover, if the judgment of the trial court is supported by some competent, credible evidence, it will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578 ; State, ex rel. Shady Acres Nursing Home, Inc., supra.

The test for laches in the present situation was set forth by this court in Smith v. Smith (1959), 168 Ohio St. 447, 156 N.E.2d 113 , at paragraph three of the syllabus: "Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim." Additionally, as was noted in Smith, at 455, 156 N.E.2d 113 during the delay in the assertion of rights the complainant must have had knowledge or notice of the defendant's conduct and have been afforded an opportunity to institute suit.

There is substantial disagreement in the evidence of the present case regarding both the issue of an opportunity to bring suit and the question of prejudice. Kinney asserts that Mathias concealed his location so that she would not be able to find him by not revealing his changes of address when he moved. Mathias responds that he made no effort to hide, that Kinney knew he lived in Milwaukee, that she could have located his whereabouts through General Electric, his employer, and that she had engaged in several communications with him regarding the question of the children's adoption. Thus, Mathias concludes that Kinney had ample opportunity to sue him. The court of appeals agreed and characterized Kinney's delay as having no acceptable explanation.

Resolution of the issue of whether Kinney indeed had an opportunity to assert her rights is a factual question. It is undisputed that Mathias failed to notify Kinney of his new address after each of his moves or even of the fact that he had moved. The evidence is in dispute over whether Kinney eventually learned that Mathias was living in Milwaukee. The testimony is at logerheads over whether there was ever any discussion of Gary Kinney's adoption of the two children. Mathias has been unable to produce any evidence of the letters or records he claims resulted from these communications. As for inquiring of Mathias' employer, the last document from the Massachusetts action filed with the lower court stated that Mathias no longer worked for General Electric.

Evaluation of the evidence on this question is for the trier of fact. It is obvious to this court that there was competent, credible evidence upon which to conclude that Kinney lacked an opportunity to bring suit to enforce her rights. The court of...