723 N.E.2d 164 | Ohio Ct. App. | 1998
Scioto County Child Support Enforcement Agency ("CSEA") appeals the trial court's judgment ordering the agency not to attach Jeffrey K. Stapleton's federal income tax refund. CSEA assigns the following error:
"The trial court erred when it ordered Appellant not to attach Appellee's tax refund as said order is contrary to federal regulations, the Ohio Revised Code (ORC) and the legislative intent, regardless of persuasive case law from Appellate Districts other than the Fourth District."
Stapleton and Heidi Holstein are the divorced parents of a minor child, Caitlyn. In the divorce decree, Stapleton was ordered to pay child support. On January 9, 1997, the trial court ordered Stapleton "to pay $20.00 per pay period, plus poundage, against the arrearages herein until paid in full." It is undisputed that Stapleton was making the court-ordered child support payments and court-ordered payments on the arrearages. In February 1997, Stapleton filed a motion asking the trial court to prohibit CSEA from garnishing his federal income tax refund.1 Ultimately, the trial court ordered the appellant to reimburse the federal tax refund to Stapleton.
Initially, we clarify the confusion about the nature of controlling precedent in the Fourth District. The trial court stated that the cases of Gladysz v. King (1995),
In its only assignment of error, appellant argues that the trial court erred by ruling that appellee's federal tax refund could not be intercepted. We review a trial court's construction of a statute de novo and without deference, to that court's interpretation. State v. Wemer (1996),
Under federal law, only "past due" child support may be collected by using the program for intercepting federal tax refunds under the procedures outlined in Section 664, Title 42, U.S. Code. See Gladysz, supra.
CSEA derives its authority to collect monies from federal tax refunds "in accordance with
Section 664(c)(1) defines past-due support as "the amount of a delinquency, determined under a court order, * * * for support and maintenance of a child." Delinquent means "due and unpaid at the time appointed by law or fixed by contract." Gladysz,
"Thus, a delinquency is created by a default in performance, not merely by the existence of an outstanding debt. An arrearage
for purposes of Ohio Adm. Code Chapter
In Gladysz, the obligor, King, had never been ordered to pay the "arrearages," i.e., the birthing expenses, prior to the original support order. In other cases addressing this issue, the obligors had never been ordered by a court to pay the "arrearages." That is, the obligors had not extinguished their debt, but they were not delinquent because they were not in default of a payment obligation fixed by a court. See TuscarawasCty. CSEA v. Maldonado (Apr. 27, 1998), Tuscarawas App. No. 97AP100071, unreported, 1998 WL 400872; Hartzell v. Albright (Sept. 27, 1993), Stark App. No. CA9156, unreported, 1993 WL 405439. By contrast, Stapleton had initially been ordered by the trial court to pay child support and then failed to pay that court-ordered support. When he failed to pay the court-ordered support, the arrearages became due and unpaid, and, thus, delinquent. Therefore, the arrearages were "past-due support" as defined by Section 664(c), Title 42, U.S.Code. We acknowledge that after the arrearages became delinquent, the trial court again ordered Stapleton to pay towards the arrearage and that he complied with the subsequent order. However, this does not change the fact that he was delinquent under the initial child support order. Accordingly, the trial court erred in determining thatGladysz *600 prevented it from attaching Stapleton's federal tax refund pursuant to Section 664, Title 42, U.S.Code.
The magistrate found that CSEA had satisfied all the requirements of R.C.
We sustain appellant's only assignment of error because the trial court erred as a matter of law in ordering appellant to return Stapleton's federal tax refund.
Judgment reversed.
PETER B. ABELE and KLINE, JJ., concur.
