Salyer v. Newman

• Decision Date: 15 December 2011
• Docket Number: Case No. 11CA4
• Citation: 2011 Ohio 6676
• Parties: KEVIN SALYER, Plaintiff-Appellant, v. TONYA NEWMAN, Defendant-Appellee.1
• Court: Ohio Court of Appeals

2011 Ohio 6676

KEVIN SALYER, Plaintiff-Appellant,

v.TONYA NEWMAN, Defendant-Appellee.¹

Case No. 11CA4

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

Dated: December 15, 2011

DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Susan M. Zurface Daniels,

COUNSEL FOR APPELLEE HIGHLAND COUNTY CHILD SUPPORT ENFORCEMENT AGENCY: Richele M. Stroop,

CIVIL CASE FROM COMMON PLEAS COURT

DATE JOURNALIZED: 12-15-11

ABELE, J.

{¶ 1} This is an appeal from a Highland County Common Pleas Court, Juvenile Division, judgment that denied the request filed by Kevin Salyer, defendant below and appellant herein to (1) terminate child support and (2) forgive arrearages. The court also rejected appellant's request to consider reinstating his driver's licence or granting occupational driving privileges.

{¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN REFUSING TO ADOPT THE AGREEMENT OF THE PARTIES TO FORGIVE THE CHILD SUPPORT ARREARAGE WHERE NO SUPPORT IS DUE TO THE STATE OF OHIO."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO HEAR EVIDENCE OR TO SET THE MATTER FOR FURTHER HEARING UPON ORAL MOTION FOR REINSTATEMENT OF DRIVER'S LICENSE OR FOR DRIVING PRIVILEGES, AS THE SAME IS WITHIN THE JURISDICTION OF THE COURT PURSUANT TO R.C. 4510.73."

{¶ 3} On June 15, 2005, appellant filed a complaint to establish paternity and to allocate parental rights and responsibilities. Subsequently, the trial court ordered appellant to pay $155.49 in monthly child support. Over the next year, however, appellant failed to pay child support. On June 2, 2006, the court entered an "agreed entry forgiving arrearage."

{¶ 4} On August 14, 2008, CSEA filed a motion to show cause why appellant should not be held in contempt for failing to pay child support. When appellant made the payment, CSEA dismissed the motion.

{¶ 5} On August 10, 2010, CSEA filed another motion to show cause. At the hearing, appellant admitted that he failed to pay child support. Appellee proposed that appellant pay $873.18 within the next sixty days and that appellee would then agree to have appellant's driver's license reinstated. The trial court found appellant in contempt, but delayed sentencing in order to allow appellant to request the municipal court to reinstate his license. The court stated that it would not consider a request to reinstate his license until after appellant made a request in themunicipal court. The court also directed appellant to register with a job service and to present proof of registration within thirty days.

{¶ 6} On January 25, 2011, the trial court held the sentencing hearing. At the hearing, Newman (the child's mother) stated that she did not want appellant incarcerated and that she would agree to terminate the child support order and to forgive the arrearage. Appellee informed the court that Newman does not receive cash public assistance, but that she does receive a medical card. The court, however, rejected the request to terminate the child support order and to forgive the arrearage. The court stated: "* * * I'm not going to terminate any of the child support obligation under this set of facts and scenario for, uh, Garrison. There are some cases if the child were to be adopted and that type of thing where the child support is terminated. I'm not going to do that at this time; nor to allow the arrearage to be forgiven."

{¶ 7} On January 26, 2011, the trial court journalized its entry regarding appellant's sentence and ordered appellant to pay the court costs, but did not impose any term of incarceration. The court also directed appellant to submit legal authority for his driver's license reinstatement request, but appellant failed to do so. This appeal followed.

I

{¶ 8} In his first assignment of error, appellant asserts that the trial court erred by refusing to adopt the parties' agreement to forgive the child support arrearage. Appellee appears to likewise assert that the trial court should have upheld the parties' agreement to forgive the arrearage.

{¶ 9} Child-support issues are generally reviewed under the abuse of discretion standard. See, e.g., Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. As we have statedmany times, an abuse of discretion "connotes more than an error of law or judgment; rather, it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of discretion standard of review, appellate courts must not substitute their judgment for that of the trial court's. See, e.g., In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181. Furthermore, as to issues of fact appellate courts must generally presume that the trial court's findings are correct because the trier of fact is best able to observe the witnesses and to use those observations to weigh witness credibility. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273; see, also, Mahlerwein v. Mahlerwein 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, at ¶19.

{¶ 10} A parent has a statutory duty to support his or her child. See R.C. 3103.031. "This duty is also owed to the general public and state, as the state would be responsible to assume the support of the child at the public's expense should the parent fail to support the child." Day v. Bloom, Medina App. No. 06CA0039-M, 2006-Ohio-6957, ¶8, citing Stapleton v. Stapleton (April 19, 1995), Medina App. No. 2358-M; Nelson v. Nelson (1990), 65 Ohio App.3d 800, 804, 585 N.E.2d 502.

{¶ 11} Despite the statutory duty of support, the parties to a child support order may agree to modify a child support arrearage. See Byrd v. Knuckles, 120 Ohio St.3d 428, 2008-Ohio-6318, 900 N.E.2d 164, ¶1. In Byrd, the court explained:

"R.C. 3119.84, the exception to R.C. 3119.83, states, 'A court with jurisdiction over a court support order may modify an obligor's duty to pay a support payment that becomes due after notice of a petition to modify the court support order has been given to each obligee and to the obligor before a final order concerning the petition for modification is entered.' This provision plainly statesthat a court may retroactively modify a child-support payment that became due after the obligee of the order had notice of the petition to modify the support order. In this case, not only did Reeder receive notice of the petition to modify the support order, she did not contest the petition in juvenile court, in the court of appeals, or before this court. It is clear to us that R.C. 3119.83 and 3119.84 do not categorically prohibit juvenile courts from modifying support orders. See Nelson v. Nelson (1990), 65 Ohio App.3d 800, 805, 585 N.E.2d 502 ("this court is cognizant that, in certain situations, equitable principles and equitable defenses, when established by a proper evidential predicate, may be applicable, which would permit the parents to enter into an extrajudicial agreement that may have retroactive application regarding child support").

Further, nothing in R.C. 3119.83 or any other part of the statutory scheme indicates that it is intended to nullify reasonable agreements reached by the parties to a child-support order. R.C. 3119.83 prohibits judges from retroactively modifying child-support orders; it does not prohibit parties from agreeing to modify child-support orders. See United States Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, Policy Interpretation Question PIQ-99-03, Compromise of Child Support Arrearages (Mar. 22, 1999) (child-support arrearages may be compromised by the parties, but judicial "retroactive modification of arrearages * * * without the concurrence of the obligee (or State assignee) * * * is expressly prohibited").

Finally, pursuant to R.C. 3123.18, when a court has determined that a child-support obligor is in default under a support order, the arrearage becomes a "final judgment which has the full force, effects, and attributes of a judgment." Appellee Clermont County Department of Job and Family Services and both amici, Butler County Child Support Enforcement Agency and the Ohio Child Support Directors' Association, argue that the child-support arrearage in this case is a judgment and, therefore, that the parties should be free to compromise it. See Sowald & Morganstern, Domestic Relations Law (4th Ed.2002) 993, 20:27 ("As a general rule, arrearages may be forgiven by the obligee as long as public assistance is not involved"). In this case, which does not involve public assistance, we conclude that the judgment, like any other judgment in Ohio, can be compromised and settled. See Columbiana Cty. Bd. of Commrs. v. Samuelson (1986), 24 Ohio St.3d 62, 63, 24 OBR 142, 493 N.E.2d 245; Gholson v. Savin (1941), 137 Ohio St. 551, 560-562, 19 O.O. 309, 31 N.E.2d 858.

Nothing in this opinion should be construed to require judges to accept all agreements regarding the modification of child-support arrearages that are presented to them. There could be situations in which agreements are unreasonable, made under duress, or otherwise flawed. It is clear in this case, however, that the agreement between Reeder and Knuckles suffers from none of these defects. To the contrary, the agreement facilitated the adoption of their child by Reeder's husband. We reverse the judgment of the court of appeals and remand the cause to the juvenile court for further proceedings consistent with this opinion."

Id. at ¶¶4-7.

{¶ 12} Before Byrd, the Ohio Supreme Court recognized that compromises in child support may not always be in the best interests of the child. See DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 540, 679 N.E.2d 266. As the DePalmo court explained:

"The law favors settlements. However, the difficult issue of child support may result in agreements that are suspect. In custody battles,

...