LISA M. SCHROEDER, PLAINTIFF-APPELLANT, v. DENNIS V. NIESE, DEFENDANT-APPELLEE.
CASE NO. 12-16-05
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
December 27, 2016
2016-Ohio-8397
WILLAMOWSKI, J.
Aрpeal from Putnam County Common Pleas Court Juvenile Division Trial Court No. 20154060 Judgment Affirmed
APPEARANCES:
Howard A. Elliott and Jeffrey Whitman for Appellant
Keith H. Schierloh for Appellee
WILLAMOWSKI, J.
{1} The plaintiff-appellant, Lisa M. Schroeder (“Schroeder“), appeals a decision
{2} Schroeder is the mother and natural guardian of CN. Doc. 1. CN was born in December of 2012. Id. On October 8, 2015, Schroeder filed a complaint to determine parentage with the Juvenile Division of the Putnam County Court of Common Pleas that named Dennis V. Niese (“Niese“) as the defendant. Id. After the genetic testing results were returned, Niesе filed an answer that admitted he was the father of CN. Doc. 11, 15. On January 26, 2016, Schroeder and Niese came to the court with an agreement on several child support matters, but the issues of “past due mеdical expenses and the effective date of the child support to be paid” remained unresolved. Doc. 18. Tr. 9.
{3} At this hearing, Schroeder requested the court to award retroactive child support from the date of CN‘s birth in December of 2012. Tr. 10. Niese, however, was only willing to pay child support retroactive to the date that the complaint was filed. Tr. 11. The court heard arguments from both parties on this matter. Id. Schroeder testified as to the nature of her past relationship with Niese. In her testimony, she explained that she told Niese about their child early in her pregnancy, notifiеd him of CN‘s birth on the date of delivery, and, at the time she became pregnant, expected Niese to be involved in CN‘s upbringing. Tr. 14, 19. Schroeder testified that she and Niese signed a lease for an apartment in anticipation of living together. Tr. 17-18. However, she admitted that she had Niese sign as an occupant not as a lessee because she “was trying to protect [herself]...if he was a lessee there was no way [she] could remove him from the property.” Tr. 19. Ex. A, B. In the end, neither party moved into the apartment. Tr. 19. She also admitted that Niese had periodically given her sums of money with the amounts ranging from $40 to $400. Tr. 24.
{4} The defense argued that the pleadings did not request retroactive support from the date of birth and, therefore, the effective date of the child support should be the date Schroeder filed the complaint. Tr. 11. Niese took the stand and testified that he did tell Schroeder during her pregnancy that he was going to take care of her and CN. Tr. 32. Niese also asserted that he regularly paid Schroeder $500 per month after CN was born and would occasionally give her a $1,000 payment for months with holidays. Tr. 27. However, he made these payments only in cash and did not keep a record or take a receipt from Schroeder for these payments. Tr. 29.
{5} On July 12, 2016, the court issued a final judgment in which it ordered Niese to reimburse Schroeder for CN‘s past medical expenses аnd set October 8, 2015, as the effective date for retroactive child support. Doc. 18. On appeal, Schroeder raises one assignment of error.
The trial court abused its discretion by failing to order child support to the mother of the child retroactive to the date of birth of the child in the paternity action where the father failed to affirmatively establish the circumstances that would relieve him of his obligation to pay support from the period of time prior to the commencement of the paternity action.
{6} The sole assignment of error argues that the trial сourt erred by declining
When a court determines whether to require a parent to pay an amount for that parent‘s failure to support a child prior to the date the court issues an order requiring that parent to рay an amount for the current support of that child, it shall consider all relevant factors, including, but not limited to, any monetary contribution either parent of the child made to the support of the child prior to the court issuing the order requiring the parent to pay an amount for the current support of the child.
{7} “We review child support matters under an abuse of discretion standard.” Hay v. Shafer, 3d Dist. Mercer No. 10-10-10, 2010-Ohio-4811, ¶ 25, citing Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). “An abuse of discretion is more than an error of judgment; rather, it implies that the trial court‘s decision wаs unreasonable, arbitrary, or capricious.” Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 14. “When applying the abuse of discretion standard of review, this court is not free merely to substitute its judgment for that of the trial court.” Kreitzer v. Anderson, 157 Ohio App.3d 434, 2004-Ohio-3024, 811 N.E.2d 607, ¶ 16 (3d Dist.).
{8} In her appeal, Schroeder claims that the trial court inappropriately departed from the “general rule, in a paternity action, [that] child support should be awarded from the birthdate of the child.” Apрellant‘s Brief, 7. Schroeder is under the impression that Myers v. Moschella, 112 Ohio App.3d 75, 677 N.E.2d 1243 (1st Dist.1996) supports this general rule. Although Myers states “the [father‘s] support obligation commences at birth,” it did not require that formal child support be ordered retroactively to the datе of birth. Id. at 78, quoting Baugh v. Carver, 3 Ohio App.3d 139, 140, 444 N.E.2d 58, (1st Dist.1981).1 In fact, the appeals court in Myers affirmed the trial court‘s decision to decline an award of retroactive child support from the date of the child‘s birth and to refuse to order the father to reimburse the plaintiff for any оf the child‘s past medical expenses. Myers at 78.
{9} The judgment entry shows that the trial court, in coming to its decision, “consider[ed] all relevant factors” presented by the parties as was required by law.
{10} Based on these findings, the trial court ordered Niese tо reimburse Schroeder for all the medical and birth expenses incurred from CN‘s birth to the present and to pay retroactive child support from the date of filing. Doc. 18. This award amounts to $8,380.33 in medicаl expenses prior to the addition of any birth expenses. Id. It also amounts to $500.00 per month in arrearage payments for retroactive child support from the date this action was filed. Id. Contrary to Schroeder‘s assertions, the judgment entry that the trial court issued acknowledged the duty of Niese to support CN in some form from the time of CN‘s birth. The judgment entry also shows the trial court explained the findings аnd reasoning that guided the judge, establishing his decision was neither arbitrary nor unreasonable.
{11} Schroeder also asserts that it is an abuse of discretion to decline to award retroactive child suрport from the child‘s date of birth “absent an affirmative demonstration by the obligor of circumstances which would relief [sic] him of that obligation.” To support this argument, Schroeder cites Baugh v. Carver, supra. However, Baugh does not advance her argument when quoted in full.
Where damages for support payments for the period from the date of the child‘s birth to the date of adjudication are prayed for and proved, as here, it is an abuse of discretion for the court to make no award of child support for that period in the absence of an affirmative demonstration of some circumstance which ought reasonably to relieve the father of this obligation and the child of this entitlement.
Baugh at 140-141. For Niese to be required to make an affirmative demonstration, Schroeder would first need to prove damages. See Shockey v. Blackburn, 12th Dist. Warren No. CA98-07-085, 1999 WL 326174 (May 17, 1999). The record does not show that she carried this burden.
{12} Further, under the Baugh analysis, courts havе held that “[d]emonstrating that a father voluntarily provided support prior to a child support order, and that the child‘s financial needs were met during that pre-order period, can be sufficient еvidence to relieve a father of retroactive child support.” Evans, supra at ¶ 16. Both parties agree that Niese voluntarily made payments of child support. Doc. 18. While the parties dispute whether this support was adequate, the trial court found the fact that Schroeder did not initiate an action for a child support order until CN was nearly three to be evidence that the support was generally adequate. Id. Thus, even when taking the Myers and Baugh decisions into consideration, the trial court‘s determination was not an abuse of discretion.
While “[u]nder some circumstances, a trial court may abuse its discretion by not ordering child support payments from the birth of the child,” we do
{13} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Juvenile Division of the Putnam County Court of Common Pleas is affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls