493 N.E.2d 300 | Ohio Ct. App. | 1985
Plaintiff, Patricia Zweifel, appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, overruling her motion for contempt and to reduce arrearages to judgment.
The facts, as revealed in the record and agreed upon by the parties, provide that: Patricia Zweifel was the natural mother of both Selena Marie Price and Cassandra Zweifel born on May 31, 1964 and April 4, 1966, respectively; that in 1966 plaintiff filed a paternity suit against defendant, Ronald Price, in case No. 77253 on behalf of Selena and in case No. 77254 on behalf of Cassandra; that defendant pled guilty in both cases and on June 1, 1966 the court entered an order of support for both children, effective May 19, 1966, pursuant to former R.C.
In support of her appeal, plaintiff raises the following two assignments of error:
"1. The trial court erred in overruling the motion for an order finding the defendant-appellee guilty of contempt.
"2. The trial court erred in refusing to consider and determine the accrued arrearage and refusing to enter judgment in favor of the plaintiff-appellant for arrearage."
Plaintiff argued in her motion for contempt that defendant was required to pay for Selena's support until she reached the age of twenty-one or at least until she graduated from high school. It was plaintiff's contention that pursuant to R.C.
Former R.C.
"If the accused in a proceeding under sections
Once adjudged to be the reputed father of the illegitimate child the accused was obligated under former R.C.
"The husband must support himself, his wife, and his minor children out of his property or by his labor. * * *"
At that time, under R.C.
"The natural father of a child by a woman unmarried at the time of the birth of such child, may file an application in the probate court of the county wherein he resides or in the county in which such child resides, acknowledging that such child is his, and upon consent of the mother, or if she be deceased or incompetent, or has surrendered custody, upon the consent of the person or agency having custody of such child, or of a court having jurisdiction over the custody thereof, the probate court, if *103 satisfied that the applicant is the natural father and that establishment of such relationship is for the best interest of such child, shall enter the finding of such fact upon its journal and thereafter such child shall be the child of the applicant as though born to him in lawful wedlock."
At common law a child born out of wedlock was deemed to be the son of no father and no duty of support was imposed upon the natural father of an illegitimate child except that which was specifically provided for by statute. 46 Ohio Jurisprudence 3d (1983) 191, Family Law, Section 249. R.C.
R.C.
With acknowledgment that he is, in fact, the natural father came recognition not only of the rights of the child as though born to him in lawful wedlock, but the duties imposed upon the father of such a child as well. The legal obligation for the father's support of his minor children is expressly provided for by R.C.
Upon reviewing the facts in the instant case, the parental duty of support set forth in R.C.
The support order of the juvenile court contained no specific reference to the term of support and, thus, the duration of the payments was controlled by the applicable statutory provisions. Although defendant was originally only required, under R.C.
A question now arises, however, concerning the varying language of R.C.
R.C.
"Notwithstanding section
R.C.
"All persons of the age of eighteen years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes."
Under the amended language of R.C.
As previously noted, the original order of support makes no reference to its duration. It could thus be inferred that the duration of the support order was controlled by the applicable statutes. Upon legitimation of the child, the support order was controlled by R.C.
In consideration of her second assignment of error, we find that the trial court also erred by refusing to enter judgment in plaintiff's favor for arrearages. As noted in our discussion of plaintiff's first assignment of error, defendant was obligated to pay child support until Selena graduated from high school. Therefore, any payments due for the period between Selena's eighteenth birthday and the date of her graduation were collectible.
As for the increased support payments of $25, plaintiff argues that the modification order of March 31, 1982 was to be effective as of September *105 18, 1981 as stated in the referee's report and recommendation. It is defendant's position that the orders of increase did not take effect until March 31, 1982 and only from that date was he legally obligated to pay the increased amount of $25 per week per child. While defendant did pay the increased support payments from September 18, 1981, the money paid up to March 31, 1982 was an overpayment. It would appear to be plaintiff's contention, although it was not set forth with any clarity either in the proceedings in the court below or in plaintiff's brief, that the amount paid for that period should not be set off against the arrearage due for the period of defendant's nonpayment since defendant was obligated to pay the higher amount beginning on September 18, 1981 as ordered by the trial court on March 31, 1982.
The trial court, in its decision of April 2, 1982, approved the report and recommendation of the referee which recommended that the order of support in each case be increased to $25 per week "effective September 18, 1981." The language of the judgmententry of the trial court is absent any reference to the effective date of the increase in support.
A review of the objections filed by plaintiff discloses that she challenged only the amount of the increase and raised no other issues. In overruling the objections and approving the referee's report and recommendation, the court refers only to the issue in dispute, that being the amount of the increase. As such, without any specific reference to the trial court's disapproval of the referee's report or its desire to modify his recommendation, the approval of the report and recommendation was intended to include the effective date of September 18, 1981. Moreover, defendant did not object to the referee's report or to the increase in support effective from the date of the hearing. In fact, defendant began paying the increased amount as of September 18, 1981.
In light of the approval of the referee's report and recommendation by the trial court and the absence of any objections by defendant, the order of support was effective as of September 18, 1981 and no setoff of the amount paid from that date to the date of approval by the trial court was available against any arrears. Plaintiff's second assignment of error is sustained.
Accordingly, plaintiff's first and second assignments of error are sustained. The judgment of the court is reversed, and the cause is remanded for further proceedings consistent with law and this opinion.
Judgment reversed and cause remanded.
REILLY, P.J., and MOYER, J., concur.