598 N.E.2d 167 | Ohio Ct. App. | 1991
Lead Opinion
This is an appeal from a judgment entered by the Jackson County Court of Common Pleas ordering that child support arrearage payments received by the Jackson County Child Support Enforcement Agency from Gary Miller, plaintiff, be transmitted to the Clerk of Courts to be credited against the obligation of Jacqueline B. Miller, defendant-appellant, to pay restitution for the crime of theft in office.
Appellant assigns the following error:
"The trial court erred in its order of November 30, 1990, by ordering the appellant's right to receive child support arrearage payment as credited against appellant's obligation to pay restitution by exceeding the statutory authority granted the trial court by the Ohio Revised Code."
Appellant and Gary Miller were married on June 16, 1971, and subsequently had one child, Cindy Lee Miller. After the parties were divorced in 1974, the trial court entered a judgment which granted appellant custody of the parties' child and ordered Gary Miller to pay child support in the amount of $20 per week plus poundage through the Jackson County Bureau of Support. On June 10, 1987, the trial court determined that Gary Miller was in contempt of its prior support order and further determined that he owed child support arrearage in the amount of $4,263.04. The trial court ordered Gary Miller to pay $40 per week plus poundage for the arrearage and $20 per week plus poundage for current child support.
On May 31, 1990, Jackson County Child Support Enforcement Agency ("CSEA") filed an affidavit which stated that the parties' child would become emancipated as of June 25, 1990 and requested an order terminating Gary Miller's obligation to pay current child support. The trial court terminated Gary Miller's current child support obligation and ordered him to pay $20 per week plus poundage upon the child support arrearage through the CSEA.
In 1990, appellant was convicted by the trial court for the crime of theft in office, as proscribed by R.C.
"1. Payments received from the Obligor upon child support arrearage shall be transmitted to the Clerk of Courts to be credited against the Obligee's obligation to pay restitution to Jackson County Department of Human Services, the victim of the Obligee's crime of theft in office.
"2. Any party may have a hearing upon request to consider these matters further."
Cindy Lee Miller then wrote a letter to the trial court, objecting to its November 30, 1990 order, and claiming that the arrearage checks were necessary to support her. On January 2, 1991, following a review hearing to address the issue of whether the child support arrearage was an asset owned by the emancipated child, the trial court issued an order which, in effect, affirmed its prior order regarding payments for the child support arrearage.
Appellant's sole assignment of error on appeal asserts that the trial court erred in ordering the Jackson County CSEA to transfer child support arrearage payments from Gary Miller to the victim of appellant's theft in office offense, i.e., the Jackson County Department of Human Services, rather than ordering that the arrearage payments be made first to appellant. Appellant's argument relies solely on R.C.
"(K)(1) Except as provided in division (K)(2) of this section, if child support arrearages are owed by an obligor tothe obligee and to the department of human services, anypayments received on the arrearages by the child supportenforcement agency first shall be paid to the obligee until thearrearages owed to the obligee are paid in full." (Emphasis added.)
Accordingly, R.C.
In the instant case, however, the trial court ordered payment to the Jackson County Department of Human Services in its capacity as victim of appellant's R.C.
Generally, a trial court's order of restitution will not be reversed absent a showing of an abuse of discretion. See,e.g., State v. Williams (1986),
During the proceedings below, appellant's argument appeared to focus upon the right of the parties' daughter, emancipated prior to the subject order, to receive the child support arrearage payments. Appellant does not raise this issue on appeal, instead relying solely on R.C.
"`Defendant [father] was instrumental in bringing into the world the child for whom the benefit of the support money was intended, and he assumed, in addition to the natural duties of a parent, a statutory duty to support the child until emancipation or majority. The weekly support order merely put a price tag on the statutory duty already existent. The defendant knew of the existence of his obligation of support * * * and the extent of such obligation was fixed by * * * the judgment of divorce. The mere fact that he failed to meet such obligation does not mean that he was excused therefrom; it simply means that someone assumed his duty of support, for, in the absence of evidence to the contrary, the court will presume that the child was clothed, fed and generally accorded the necessities of life, the payment for which the weekly support money was intended.'" Connin v.Bailey (1984),
We recognize the duty of support runs from parent to child, and not directly from noncustodial parent to custodial parent. However, when the noncustodial *725
parent fails to make payments as ordered and either the custodial parent or a public agency must assume that additional burden, the parent or agency is entitled to recoup its payments from the obligated parent. In the case at bar, absent evidence to the contrary, it is assumed that appellant provided the parties' child with the requisite support in the absence of timely child support payments from appellee. Therefore, the right to child support arrearage payments was an asset owned by the custodial parent. Accordingly, absent any express statutory provision to the contrary, it was an asset subject to the trial court's restitution order pursuant to R.C.
As noted previously, appellant contends that R.C.
"`[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The questionis not what did the general assembly intend to enact, but whatis the meaning of that which it did enact. * * *' (Emphasis added.) Further, we know that `[i]n matters of construction, it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used. * * *'" Id.,
quoting Slingluff v. Weaver (1902),
Undoubtedly, the preeminent purpose of R.C.
Appellant cannot successfully contend that the arrearage would not properly be subject to the restitution order upon being paid to her by the CSEA. It would be incongruous to construe R.C.
Accordingly, and limited to the unique, factual circumstances presented in the instant case, we are not persuaded that the trial court either abused its discretion or acted in violation of R.C.
Judgment affirmed.
PETER B. ABELE, J., concurs.
GREY, J., dissents.
Dissenting Opinion
I respectfully dissent. There is a growing tendency to treat child support as a financial asset of the custodial parent and to treat custody like the old common-law usufruct, or perhaps something akin to a power coupled with an interest.
In Connin v. Bailey (1984),
Thus, I dissent. *727