Nelson v. Nelson, 88-L-13-199
| Decision Date | 02 January 1990 |
| Docket Number | No. 88-L-13-199,88-L-13-199 |
| Citation | 65 Ohio App.3d 800,585 N.E.2d 502 |
| Parties | NELSON, Appellant, v. NELSON, Appellee. |
| Court | Ohio Court of Appeals |
Jean Ann S. Sieler, Toledo, for appellant.
Bartley J. Troy, Cleveland, for appellee.
Appellant, Dale E. Nelson, and appellee, Pamela Kay Nelson, were divorced on April 18, 1975. Two minor children, Jeffrey and Natalie, were born to the parties on June 1, 1966 and March 2, 1973, respectively. Pursuant to the divorce decree, custody was granted to appellee, and appellant was ordered to pay child support in the amount of $25 per week per child. Appellant was granted visitation rights, but visitation with Natalie was not to begin until she reached the age of five.
In 1975, appellee initiated an URESA action to enforce the child support order through the Broward County Court in Florida where appellant was residing.
Appellee remarried on September 17, 1976, and in 1978, she contacted appellant regarding the stepparent adoption of Natalie. Appellant testified that he felt the adoption would be in the best interest of the child, so he consented. He also indicated that, pursuant to the agreement, he would be forgoing his paternal rights and would be released from his obligation to support Natalie.
Appellee, on June 16, 1978, wrote a letter to the Broward County Court indicating:
She again corresponded with the Broward County Court division on June 20, 1978 and noted that her present husband was planning to adopt Natalie, that Natalie was well taken care of, and that she agreed to eliminate support for her. Apparently, the Broward County Court modified the order and reduced the support obligation to $25 per week.
On March 26, 1983, appellee again wrote to the Broward County authorities. She indicated that she had "no argument or complaint" with appellant's child support payments.
The parties' son, Jeffrey, was killed in an automobile accident on October 6, 1983. At the funeral, appellant saw his daughter and spoke with her for a few hours. She visited him at Christmas, and appellant began voluntarily paying $50 per month to the appellee for Natalie's care. This continued until the appellee, complaining of harassment by the appellant, sent a letter to the appellant requesting that he desist communicating with Natalie. He then ceased sending checks in September 1984. The appellee also testified that, while she had consented to these minimal contacts, she had no intention of letting this become regularly scheduled visitation.
Apparently, sometime prior to September 1985, appellant learned Natalie had not been adopted. At that time he was contacted by the Lake County Welfare Department which indicated appellee was seeking ADC. Appellant responded that he had no legal obligation to support Natalie during 1984 but had done so voluntarily, and that he was going to initiate custody proceedings.
On October 17, 1986, appellee filed a motion for a lump sum judgment on child support arrearages and for an increase in child support. A hearing was held on February 2 and May 14, 1987. The referee made findings of fact and recommendations which were filed on June 16, 1987. The referee ordered appellant to pay $103 per week for child support for Natalie. Child support payments were suspended from June 16, 1978 through September 30, 1983, which was the date the referee determined appellee had contacted appellant requesting financial assistance. The referee then granted a lump sum award to appellee for arrearages. (The final award was to be predicated upon CSEA audit.)
On July 30, 1987, appellant filed an objection to the referee's report. The judge, on August 10, 1987, ordered that the matter be heard without oral argument. Both parties submitted statements with the court. Appellant filed an objection and, on December 31, 1987, the court directed appellant to contact the bureau of support to schedule "a mistake of fact hearing."
Appellant then, on January 20, 1988, filed a brief indicating his objection focused upon the referee's report and the bureau's application of that recommendation.
On September 10, 1988, the judge adopted in toto the referee's report.
Appellant appealed raising the following assignments of error:
In the first three assignments of error, appellant offers three different theories in an attempt to negate his child support obligations. All of these shall be addressed in a consolidated fashion.
In Ohio, both statutory law and common law, as well as public policy, recognize:
"A father's obligation to support his children is considered to be a duty owed to the state as well as to his minor children, since, if the father fails to fulfill his obligation there is a distinct possibility that the state will have to assume that obligation and that the children will be supported at public expense." 47 Ohio Jurisprudence 3d (1983) 67-69, Family Law, Section 608.
Therefore, the parental obligation is one which transcends some of the common tenets of traditional law. See State v. Ducey (1970), 25 Ohio App.2d 50, 54 O.O.2d 80, 266 N.E.2d 233; R.C. 2111.08. Furthermore, it would be unreasonable in all circumstances to permit the parents, either individually or jointly, to absolve themselves of this duty of support by entering into an agreement between themselves to that effect subsequent to a court order. However, the father can "relieve himself from liability to the mother for support of their minor children" by agreement. (Emphasis added.) 47 Ohio Jurisprudence 3d (1983) 75, Family Law, Section 614.
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