{¶ 2} Defendant-Appellant, Bruce Edward Patton, appeals the judgment of the Allen County Court of Common Pleas, Juvenile Division, ordering him to pay retroactive child support in the amount of $88,612.68 to Plaintiff-Appellee, Sandra Michelle Hills. On appeal, Patton asserts that the trial court's award of child support was against the manifest weight of the evidence, contrary to law, and an abuse of discretion because Hills' claim was barred by the doctrine of laches and because the trial court improperly calculated the amount and failed to apply the appropriate deviations. Based on the following, we affirm in part, reverse in part, and remand this matter for further consideration.
{¶ 3} In November 2005, the Allen County Child Support Enforcement Agency ("CSEA") filed a complaint on behalf of Hills to establish paternity and support, alleging that Patton was the natural father of Jessica Renee Hills (DOB: 6/13/1988) and seeking both future and back child support. Patton did not file an answer to the complaint.
{¶ 4} In December 2005, the trial court issued an agreed judgment entry that, based upon genetic testing, Patton was the natural and biological father of *3 Jessica and established a parent-child relationship. Among other things, the entry also designated Hills as the residential parent and legal custodian, ordered Patton to pay monthly child support in the amount of $374.12 to commence November 1, 2005, and provided that Hills would claim the tax dependency exemption for tax purposes. The sole unresolved issue was whether Patton should pay back child support.
{¶ 5} In May 2006, the magistrate held a hearing on the issue of back child support. The same day, Patton moved to dismiss Hill's claim for back child support on the grounds it was barred by R.C.
{¶ 6} At the hearing, the following was established.
{¶ 7} Hills and Patton began dating sometime in late summer or early fall 1987. Both lived in or near Findlay, Ohio. Patton was also dating other people at the time, but Hills was not. The relationship ended in October 1987. About a week or two later, Hills learned she was pregnant. According to Hills, the day she found out about the pregnancy she went to Patton's office and informed him, they were in frequent contact with each other until Patton married in spring 1988, and Patton asked her about doctor visits and even paid for her vitamins for a while. Patton disputed this, testifying that Hills told him over the phone that she was pregnant; that he questioned whether he was the father; and, that he did not recall buying her vitamins. *4
{¶ 8} Patton married his wife, Stacy, in March 1988. Stacy was aware of the paternity allegations. On March 21, 1988, Hills' attorney sent Patton a letter alleging his paternity and requesting to negotiate the care of the child. On March 30, 1988, Patton's attorney responded, denying Patton's paternity and indicating that he would oppose any legal proceedings, but would submit to a paternity test when the child had reached six months of age. Hills gave birth to Jessica in June 1988, but did not list Patton on the birth certificate because his signature was required. According to Hills, Patton's mother visited her and Jessica in the hospital, but Patton stated he was not aware of the visit. Patton did not hear from Hills again until she filed a paternity suit in Hancock County in July 1990. After the dismissal of the paternity suit, Hills did not refile it because she was dealing with a lot of emotional issues related to the situation and believed the burden was on Patton because he knew about the pregnancy.
{¶ 9} Patton testified that he was aware he had a right to a paternity test and could initiate a paternity action; that he knew the dismissal did not resolve the issue, but he did not want to know the child and thought the burden was on Hills to prove it; that he would have taken a blood test at any time to establish paternity; and, that, after the dismissal in 1990, he assumed he was not the father because no further action was taken against him. *5
{¶ 10} In 1992, Hills moved to Lima. At that time, Patton and his wife also lived in Lima with their three children. When Jessica was fourteen or fifteen years old, Hills contacted Patton because Jessica wanted to meet him. Patton became involved in Jessica's life, referred to himself as her father, and did not ask for a paternity test or dispute that he was Jessica's father because she looked like him. During that time, Hills knew she was entitled to child support but did not act because she thought Patton was going to begin contributing. Patton bought Jessica gifts on holidays, a class ring, some clothes, and also bought her a car shortly after her sixteenth birthday because he had gotten his other daughter a car. The car was in Patton's name, he insured the car under his family policy, and he made the car and insurance payments.
{¶ 11} Approximately one year later, when Jessica was seventeen, Patton asked Jessica to start paying him $150 per month toward her car insurance because his family policy premium had increased and because his other daughter was paying toward her own insurance. Hills refused because she did not want Jessica to have to get a job to pay Patton because she felt he owed Jessica. Hills also indicated that she did not have the money to contribute toward Jessica's car insurance because she lived from paycheck to paycheck. In August 2005, Patton took the car away from Jessica. Hills testified that this action was the breaking *6 point for her because she had also asked Patton to help with Jessica in other ways, which he had refused, so she decided to file the instant action.
{¶ 12} Regarding the parties' finances, Patton's joint tax returns from 2002 through 2005, his social security statement of earnings from 1977 through 2003, and Hills' social security statement of earnings from 1976 through 2004 were admitted without objection. Additionally, Hills testified that she has been steadily employed since 1988; that Patton made no contributions toward Jessica from the time of her birth up to the time Jessica requested to meet him; and, that Patton did not contribute to any of Jessica's necessities aside from some clothes and the car. Patton testified that he spent about $300 on Christmas gifts for Jessica, $200 on her class ring, $257 per month for her car payment, and $174 per month for her car insurance before he took the car away. Patton also stated that his son suffers from cerebral palsy, which requires $200 per month in medical bills. Patton admitted that the Bureau for Children with Medical Handicaps helped with the medical bills, but ceased after one year because his income level disqualified him.
{¶ 13} At the close of the hearing, the magistrate took the matter under advisement and requested that the parties file proposed findings of fact and conclusions of law, as well as the appropriate child support worksheets.
{¶ 14} In June 2006, the parties submitted their proposed findings of fact, conclusions of law, and child support worksheets. *7
{¶ 15} In September 2006, the magistrate denied Patton's motion to dismiss Hills' claim for back child support, granted Hills' motion for back child support, and ordered Patton to pay Hills a lump sum of $88,612.68 in back child support for the time period of June 13, 1988 through October 31, 2005. In doing so, the magistrate found that R.C.
{¶ 16} In February 2007, Patton filed a supplemental brief in support of his objections to the magistrate's decision.
{¶ 17} In March 2007, Hills filed her response to Patton's objections.
{¶ l8} In September 2007, the trial court overruled Patton's objections, adopted the magistrate's decision in its entirety, denied Patton's motion to dismiss Hills' claim for back child support, and ordered Patton to pay Hills $88,612.68 in back child support.
{¶ 19} It is from this judgment that Patton appeals, presenting the following assignments of error for our review. *8
THE TRIAL COURT'S ORDER AWARDING PLAINTIFF/APPELLEE A LUMP SUM JUDGMENT IN THE AMOUNT OF $88,612.68 FOR CHILD SUPPORT RETROACTIVE TO THE CHILD'S DATE OF BIRTH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WAS CONTRARY TO LAW AND CONSTITUTES AN ABUSE OF DISCRETION WHERE PLAINTIFF RESTED ON HER RIGHTS AND DID NOT SEEK THE ESTABLISHMENT OF PATERNITY AND SUPPORT UNTIL THE CHILD WAS SEVENTEEN YEARS AND FIVE MONTHS OLD AND WHERE DEFENDANT/APPELLANT HAS BEEN PREJUDICED BY SAID DELAY.
THE TRIAL COURT'S ORDER AWARDING PLAINTIFF/APPELLEE A LUMP SUM JUDGMENT IN THE AMOUNT OF $88,612.68 FOR CHILD SUPPORT RETROACTIVE TO THE CHILD'S DATE OF BIRTH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WAS CONTRARY TO LAW AND CONSTITUTES AN ABUSE OF DISCRETION WHERE THE TRIAL COURT DID (Sic) PROPERLY CALCULATE THE AMOUNT OF CHILD SUPPORT DUE AND DID NOT APPLY THE DEVIATION FACTORS SET FORTH IN OHIO REV. CODE §3119.23 TO SAID CALCULATIONS.
{¶ 20} The following standards of review apply throughout.
{¶ 22} Additionally, civil judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C E. Morris Co. v. Foley Const. Co. (1978),
{¶ 24} We note at the outset that Civ.R. 8(C)1 requires that "a party shall set forth affirmatively * * * laches, * * * statute of limitations, * * * and any other matter constituting an avoidance or affirmative defense" in pleading to a preceding pleading. Otherwise, affirmative defenses "other [than] those listed at Civ.R. 12(B)'" are waived. Lehman v. Hubbard, 9th Dist. No. 23279,
{¶ 25} Here, Patton failed to file an answer to Hills' November 2005 paternity complaint and, consequently, failed to raise the affirmative defenses of statute of limitations and laches. Patton did not assert these defenses until his May 2006 motion to dismiss Hills' request for back child support, which he filed the same day the trial court conducted the hearing on the matter. "An affirmative defense is not the proper subject of a motion to dismiss, but must be pleaded and proven by the party asserting the defense." Post v. Caycedo, 9th Dist. No. 23769,
{¶ 26} Nevertheless, since the trial court addressed the statute of limitations, we note that the trial court properly determined that R.C.
At the time of the initial filing of an action to determine the existence of the parent and child relationship with respect to that parent, the child was over three years of age.
Prior to the initial filing of an action to determine the existence of the parent and child relationship with respect to that parent, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child.
R.C.
{¶ 27} Here, the second prong under R.C.
{¶ 28} Further, contrary to Patton's assertions, R.C.
{¶ 29} Accordingly, we overrule Patton's first assignment of error. *14
{¶ 31} Child support must be calculated in accordance with the provisions of R.C.
{¶ 32} The worksheet for sole residential parent status is contained in R.C.
{¶ 33} Additionally, the court may deviate from the guideline child support amount if, upon consideration of the factors in R.C.
{¶ 34} Here, Patton first argues that the child support worksheets for 1988 through 2005 list Hills' income as zero or a nominal amount for certain years without explanation and that the calculations were based on the current child support schedule rather than the schedules that were in effect at the time. Upon reviewing the child support worksheets adopted by the magistrate, it appears that the current basic support schedule and child support worksheet were used to calculate the amount owed for each year back to 1988. As the court is required to use the schedules and worksheets in effect at the time when awarding back support, we find that the trial court erred in failing to do so.
{¶ 35} Furthermore, the annual gross income for Hills listed on each worksheet does not match up with her social security statement of earnings submitted for calculation purposes. For instance, the worksheet provides that Hills' annual gross income for 1991, 1994, and 1995 was zero, but her statement of earnings reflects that she had some taxable earnings. Additionally, no documentation or W-2 of Hills' 2005 annual gross income exists in the record even though an amount is listed for the corresponding child support worksheet.3 In fact, even the amounts listed in Hills' statement of earnings do not match up with her annual gross income amounts listed on the child support worksheets, and *17
no explanation was provided for any of the discrepancies. Because none of Hills' annual gross income amounts listed on the child support worksheets adopted by the magistrate are verified or explained in the record, we find that the trial court erred in calculating back child support and remand to the trial court to recalculate the amount of back child support owed. In doing so, the trial court shall consider Patton's contributions to Jessica from 2003 through 2005, the tax dependency exemption for past years, and the fact that Patton has a handicapped child. See R.C.
{¶ 36} Accordingly, we sustain Patton's second assignment of error.
{¶ 37} Having found no error to the appellant herein, in the particulars assigned and argued in his first assignment of error, but having found error to the appellant herein, in the particulars assigned and argued in his second assignment of error, we affirm in part, reverse in part, and remand the cause to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded. SHAW, P.J. and PRESTON, J., concur.