Smith v. Smith

• Decision Date: 28 January 1959
• Docket Number: No. 35547,35547
• Citation: 156 N.E.2d 113,7 O.O.2d 276,168 Ohio St. 447
• Parties: , 70 A.L.R.2d 1241, 7 O.O.2d 276 SMITH, Appellee, v. SMITH, Appellant.
• Court: Ohio Supreme Court

Page 447

168 Ohio St. 447

156 N.E.2d 113, 70 A.L.R.2d 1241, 7 O.O.2d 276

SMITH, Appellee, v. SMITH, Appellant.

No. 35547.

Supreme Court of Ohio.

Jan. 28, 1959.

Syllabus by the Court

1. 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. Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10, and McPherson v. McPherson, 153 Ohio St. 82, 90 N.E.2d 675, followed.

2. The Court of Common Pleas 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.

3. 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.

4. The payee of an installment child-support order or judgment, issued in conjunction with a divorce decree, is not precluded by a statutory limitation of time, by laches, or by loss of jurisdiction by the court making the order from having unpaid and delinquent installments thereon reduced to a 'lump-sum judgment,' upon which execution may be lawfully levied, because 14 years elapsed since the last payment on the order was due or because the court lost custodial jurisdiction of the child when he reached the age of 21.

In this cause, the Common Pleas Court of Cuyahoga County overruled a motion to reduce unpaid and delinquent installments on a weekly child-support order to a 'lump-sum judgment,' upon which execution may lawfully issue.

The pertinent facts are as follows:

On December 15, 1936, the appellee, hereinafter called plaintiff, was granted a divorce from the appellant, hereinafter called defendant, and defendant was ordered to pay plaintiff $7 a week, a support for their minor child, until such child should reach the age of 18. No alimony was awarded the plaintiff.

On January 13, 1942, the child became 18 years of age.

On October 23, 1956, plaintiff filed, in the original action in the Common Pleas Court of Cuyahoga County, the motion to reduce unpaid and delinquent installments on the weekly support order to a 'lump-sum judgment,' upon which execution may lawfully be levied.

It should be noted here that the case of Roach v. Roach, 164 Ohio St. 587, 132 N.E.2d 742, 59 A.L.R.2d 685, holding that unpaid and delinquent installments on an installment support order must be reduced to a 'lump-sum judgment' before a lawful execution can be levied thereon, was decided by this court on February 29, 1956.

Arguments on the motion here were heard by the Court of Common Pleas, and on March 1, 1957, the motion was overruled.

Reasons aliunde the record of the divorce case are attempted to be given as facts herein as to why the motion should be sustained, but the facts as stated above are dispositive in our consideration of this case.

Upon appeal to the Court of Appeals for Cuyahoga County, the ruling on the motion was reversed, and the court, finding that its judgment is in conflict with that of another Court of Appeals (the affirmance by the Court of Appeals for Lucas County of the judgment in In re Shipley, Ohio Juv. Ct., 11 Ohio Supp. 20), certified the record of the instant case to this court to resolve the conflict.

Richard H. Woods, Cleveland, for appellant.

William A. Vidmar, Cleveland, for appellee.

MATTHIAS, Judge.

The issue which is determinative of this appeal is whether the payee of an installment child-support order or judgment, issued in conjunction with a divorce decree, is precluded by a statutory limitation of time, by laches, or by loss of jurisdiction from having unpaid and delinquent installments on such order reduced to a 'lump-sum judgment,' by the fact that 14 years elapsed since the last payment on the order was due or by the fact that the court lost custodial jurisdiction of the child when he reached 21 years of age.

In the case of Roach v. Roach, 164 Ohio St. 587, 132 N.E.2d 742, 59 A.L.R.2d 685, this court, in paragraph two of the syllabus, held:

'2. Where a court in a divorce action makes and order for the support of a minor child of the parties, payable in installments, over which order the court retains expressly or by implication continuing jurisdiction, such order must be reduced to a lump-sum judgment as to unpaid and delinquent installments before an execution may be lawfully levied thereunder.'

The instant case presents the next logical step in the law on that subject. That is, we are required to decide herein whether a certain lapse of time allowed to expire by the payee of an installment support order before taking active steps to obtain the 'lump-sum judgment,' required by the Roach case, constitutes behavior on the part of such payee by which he forfeits his right to obtain such 'lump-sum judgment.' as to unpaid and delinquent installments.

An order or judgment for installment support payments is a judgment unlike any other because of its uncertainty of amount, although it is similar to an award of installment alimony payments where the total alimony awarded by the court is not designated as a sum certain at the time judgment is rendered. The usual order for installment support payments is not rendered in the form of a judgment for a sum certain, payable in installments, but, as in the instant case, it is usually an order to pay a certain amount periodically until the minor for whose benefit the order is intended reaches a certain age--usually the age of majority--although, in the instant case, the order extended only until the child became 18.

It would be possible, by a multiplication of the number of payment periods in a year by the number of years contemplated by the support order, then by a multiplication of that product by the amount of the periodical payment, to determine mathematically the sum certain contemplated by the order on the date of its issuance. There exists on that date, however, no certainty that the child will live for the duration of the support order or that the court issuing the order will not modify it as to future installments sometime prior to its termination. See Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10, wherein this court held that a court which issues an installment support order retains jurisdiction throughout the duration of the order to modify it, and McPherson v. McPherson, 153 Ohio St. 82, 90 N.E.2d 675, 676, wherein this court stated, in the syllabus, that 'due and unpaid installments allowed by the court for the support of a minor child may not be modified,' i. e., that the power of modification recognized in the Corbett case is restricted to future installments.

Thus, it is entirely consistent with both the law of Ohio and with reason and common sence to conclude, as we do, that, where there is an order imposing a duty to make installment support payments until a minor reaches a specified age, and the child reaches the age specified in such order, and there have been no interim modifications by the court, the amount of the judgment at that time becomes a sum certain which is no longer subject to modification. If there has been an interim modification, the mathematics involved in reaching the sum certain becomes slightly more complicated, but the sum certain is nevertheless mathematically determinable. Also, at that time the rights of the parties with respect to the amount due and owing on such judgment become fixed and unalterable. A multiplication of the amount of the installment support payment by the number of installment periods between the issuance of the order and the reaching of the age, specified in the order, by the child and a subtraction from the product thereof of the amount paid pursuant to the order give the fixed and unalterable amount owed on the order.

It is seen that it is also consistent with good reason to conclude, as we do, that the payee of the support money can not be precluded by any reason from asking for and receiving a 'lump-sum judgment' for the entire amount of arrearages on that date. If, then, a party may ever be precluded from having such arrearages reduced to a 'lump-sum judgment' by 'sleeping on his rights,' the date the rights of the parties are finally fixed, as to the unalterable amount remaining due on the order, must be considered the date upon which the 'slumber' commenced.

Although the installment support order is a final order from which an appeal may be taken as soon as it is made and which is entitled to full faith and credit under the Constitution of the United States, Const. art. 4, § 1 (see Armstrong v. Armstrong, 117 Ohio St. 558, 160 N.E. 34, 57 A.L.R. 1108), the uncertainty of the amount of the judgment precludes an application thereto of the time limitations in the dormancy and revivor statutes (Sections 2329.07 and 2325.18, Revised Code), at least before the rights of the parties with respect to the unalterable amount remaining due on the order are finally fixed.

With respect to that question, keeping in mind that we have already mentioned the similarity between installment support orders and installment alimony orders in which the total amount of alimony has not been indicated as a sum certain, see the case of Lemert v. Lemert, 72 Ohio St. 364, 74 N.E. 194, 195, 106 Am.St.Rep. 621, wherein this court found that 'a decree for alimony is not a judgment within the meaning of Section 5380, Rev.St. [Section 2329.07, Revised Code], which provides that a judgment on which execution...