GREGORY CHARLES SOUKUP, Plаintiff-Appellee, v. TINA D. KIRCHNER, Defendant-Appellant.
CASE NO. 2012-G-3095
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
2013-Ohio-2818
[Cite as Soukup v. Kirchner, 2013-Ohio-2818.]
Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No. 11 CU 000176. Judgment: Affirmed.
Jeffrey H. Black and Christine M. Tibaldi, 38109 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellant).
Susan K. Jankite, Susan Jankite Co., L.P.A., 1253 Arlington Road, Lakewood, OH 44107 (Guardian ad litem).
TIMOTHY P. CANNON, P.J.
OPINION
{¶1} Appellant, Tina D. Kirchner, appeals the judgment of the Geauga County Court of Common Pleas, Juvenile Division, denying her
{¶2} Appellant and appellee, Gregory Charles Soukup, began a relationship, though never married. Twins were born as issue of this relationship on November 4, 2004. This case commenced on September 17, 2007, in the Lake County Court of Common Pleas, Juvenile Division, when appellee filed a complaint to establish parental rights. Appellant filed an answer and counterclaim seeking, inter alia, permanent and temporary child support. The case was transferred to Geauga County on April 27, 2011. The record on appeal before this court begins on April 27, 2011, with an order setting pretrial.
{¶3} Aftеr numerous delays and a hearing on parental rights and child support, the trial court made numerous determinations which are now the subject of this appeal. First, the trial court determined that appellee was to pay child support, commencing on May 22, 2012—the date the motion for child support was filed. The trial court further found that appellee had paid $5,700 a month to appellant directly for child support since January 2008. Immediately following the trial court‘s child support order, appellant filed a
{¶4} Appellant sets forth three assignments of error, which, as they are interrelatеd, will be addressed together. They state:
{¶6} [2.] The trial court committed prejudicial error when it denied Defendаnt‘s (Appellant‘s) Motion for Relief under
{¶7} [3.] The trial court committed prejudicial error in crediting Appellee/Father as giving paid child support to Appellant/Mother instead of deeming the monies a gift as Ohio‘s statutes and case law mandate since the monies were not paid through Child Support Enforсement Agency.
{¶8} In her first assignment of error, appellant contends the trial court erred in designating May 22, 2012, as the commencement date of the child support order. Appellant argues the commencement date should be October 18, 2007, the alleged date a temporary support motion was filed, but never ruled on. In her third assignment of еrror, appellant argues that appellee‘s monthly payments of $5,700 starting in January 2008 were merely gifts. These assigned errors challenge the June 29, 2012
{¶9} In her second assignment of error, appellant argues the trial court erred in failing to grаnt relief from the Child Support Order. Thus, the essence of appellant‘s argument remains unchanged: she again argues the trial court made a mistake in designating May 22, 2012, as the commencement date of the Child Support Order; this assignment merely couches the alleged error in terms of the trial court‘s failure to grant her
{¶10} Initially, we are faced with an interesting jurisdictional quandary: appellant‘s notice of appeal—filed July 27, 2012—timely appeals the
{¶11} The Child Support Order from which the
{¶12} A defect in a timely filed notice of appeal may result in sua sponte dismissal, but is not a jurisdictional deficiency. The Ohio Supreme Court has held that, pursuant to
{¶13} In Eckmeyer v. Kent City School Dist. Bd. of Educ., 11th Dist. No. 99-P-0117, 2000 Ohio App. LEXIS 5123 (Nov. 3, 2000), this court was faced with a variation on a similar issue to the case sub judice. In Eckmeyer, the appellants failed to attach two judgment entries to their notice of appeal, though they nonetheless listed the trial court‘s purported errors from the entries on the docketing statement as grounds upon which they intended to appeal. There, relying on Maritime and Transamerica, supra, we concluded the appellee was well aware of the targeted issues such that the notice sеrved its intended purpose, and even though the entries were not attached, the substance of the appeal was still evident from the notice. We therefore considered the merits of the matter.
{¶14} Maritime, supra, is also analogous to the case sub judice. There, the notice of appeal mistakenly specified the appeal was taken from the order denying the motion for a new trial, rather than from the final judgment entered on the merits. The
{¶15} We are aware that Maritime has been distinguished numerous times. For instance, in Meluch v. O‘Brien, 8th Dist. Nos. 89008 and 89626, 2007-Ohio-6633, ¶12, relied upon by appellee, the Eighth District distinguished Maritime on the grounds that “[i]n Maritime the order denying the motion for a new trial was in fact connected to the final judgment which was entered on thе merits at trial. In the instant case, the order enforcing settlement was clearly independent of the trial court‘s granting of summary judgment on O‘Brien‘s counterclaims.” Id. at ¶12. However, such a distinguishing factor is not present in this case: the
{¶16} Further, althоugh neither of appellant‘s accepted notices of appeal comply in a technical sense with
{¶17} As a parenthetical note, this case is distinguishable from prior precedent. In Anderson v. Wojtasik, 11th Dist. No. 2011-G-3039, 2012-Ohio-2119, ¶15, this court dismissed an assignment of error premised on a judgment entry that was not attached to nor designatеd in a notice of appeal. However, the appellant in Anderson attempted to appeal a judgment entry that was issued after he had already filed a notice of appeal from another judgment entry. Id. Thus, the only notice of appeal before this court did not designate the later judgment entry because, quite simply, it had yet to exist. The appellant did not file a new notice of aрpeal from the later entry nor did he alternatively attempt to amend the prior notice to include the subsequent entry. Id. We dismissed the assignment of error, in part, for this reason. Id. Indeed, in such a situation, the appellee was unaware the appellant sought to challenge this later entry until she received his merit brief—the very circumstanсe
{¶18} Turning, then, to the merits of this case, appellant first argues the trial court should have applied the commencement date of the child support retroactively to October 18, 2007—the alleged date a temporary support request was filed, but never ruled on. Instead, the trial court used the effective date of May 22, 2012—the datе a motion for child support was filed. We note that the original “request” was contained in
{¶19} An appellate court reviews decisions involving child support under an abuse of discretion standard. Sullivan v. O‘Connor, 167 Ohio App.3d 458, 2006-Ohio-3206 (11th Dist.); Booth v. Booth, 44 Ohio St.3d 142 (1989). “In order to find error under an abuse of discretion standard, the reviewing court must find that there ‘* * * is no sound reasoning process that would support that decision.‘” Sullivan, ¶12, quoting AAAA Enters., Inc. v. River Place Community Urban Rеdevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “‘It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process persuasive.‘” Id.
{¶20} “Pursuant to Section 3111.13(C), a judgment may include ‘any other provision directed against the appropriate party to the proceeding, concerning the duty of support * * *.’ It has been concluded that Section 3111.13(C) is broad enough to allow a child support award to be made retroactive to the date of birth of the child.” Nwabara v. Willacy, 135 Ohio App. 3d 120, 138 (8th Dist.1999). “When awarding child support under
{¶21} Contrary to the assertions of appellant, however, the decision of whеther to establish retroactive support is entrusted to the trial court‘s discretion. “In deciding whether to award retroactive child support, the court must ‘consider all relevant factors,
{¶22} Here, there is no indication appellant ever sought a retroactive support order. The original request, contained in the answer and counterclaim, merely states that a determination of temporary and parent support should be established. The support motion, filed May 22, 2012, does not request retroactivе support payments. “Unless the award for retroactive child support is ‘prayed for and proved,’ there is no reason to make such an award.” Id., quoting Baugh v. Carver, 3 Ohio App.3d 139, 141 (1st Dist.1981).
{¶23} Further, the trial court found appellee provided $5,700 a month in support since January 2008 without an order to do so. “Demonstrating 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 evidence to relieve a father of retroactive child support.” In re Evans, 10th Dist. No. 01AP-1328, 2002-Ohio-3555, ¶16. Appellant does not dispute the $5,700 monthly figure. And, as noted in In re P.J.H., 2d Dist. No 2011 CA 15, 2011-Ohio-5970, which appellant herself relies upon, the danger of refusing to issue retroactive support may produce an inequitable result in
{¶24} Though appellant does not dispute the $5,700 payments, shе argues the payments were in fact gifts, pursuant to
{¶25}
{¶26} On issuing or modifying a support order, issuing any withholding or deduction notice described in section 3121.03 of the Revised Code, or issuing an order described in division (C) or (D) of that section, the сourt or child support enforcement agency shall require that support payments be made to the office of child support in the department of job and family services as trustee for remittance to the person entitled to receive payments, except as otherwise provided in sections 2151.49, 3113.07, and 3125.27 to 3125.30 of the Revisеd Code.
{¶27}
{¶28} Any payment of money by the person responsible for the support payments under a support order to the person entitled to receive the support payments that is not made to the office of child support, or to the child support enforcement agency administering the support order under sections 3125.27 tо 3125.30 of the Revised
{¶29} It is clear, given the language, that support payments under a support order not made directly through the office of child support are to bе deemed gifts. Here, however, there was no support order issued by the court until May 22, 2012—which then served as the commencement date for the court-ordered support payments.
{¶30} Therefore, the trial court did not abuse its discretion in making its child support determinations.
{¶31} Turning to appellant‘s remaining assignment of error, appellant argues the trial court erred in failing to grant relief from the Child Support Order. As noted above, the essence of appellant‘s argument remains unchanged: she again argues the trial court made a mistake in designating May 22, 2012, as the commencement date of the Child Support Order. However, a
{¶32} Moreover, appellant‘s reliance on Elkins v. Elkins, 11th Dist. No. 2011-T-0033, 2012-Ohio-1461, is misplaced. Appellant cites Elkins to demonstrate that this court previously reversed and remanded a case where the trial court used an incorrect valuation date. However, missing from appellant‘s analysis is the fact that both parties
{¶33} Appellant‘s first, second, and third assignments of error are without merit.
{¶34} The judgment of the Geauga County Court of Common Pleas, Juvenile Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.