COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68381 : ACCELERATED DOCKET SHARON SMITH, f.k.a. SHARON LEONE : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION IGNATIUS J. LEONE : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 30, 1995 CHARACTER OF PROCEEDING : Civil appeal from Domestic Relations Case No. D-78346 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ARLINE M. ZEHE VINCENT A. STAFFORD Assistant Prosecutor JOHN J. DYER P.O. Box 93923 Stafford and Associates Cleveland, Ohio 44101-5923 310 Lakeside Avenue 100 Courthouse Square Cleveland, Ohio 44113 - 2 - PER CURIAM: Ignatius Leone appeals an order of the Domestic Relations Court requiring him to pay $7,329.88 in child support arrearages to Sharon Smith, f.k.a. Leone, and $l,027.60 to the Cuyahoga County Department of Human Services for public assistance paid to Smith, holding him in contempt for failing to comply with the court's past arrearage orders, and imposing a thirty day jail sentence. For the following reasons, we reverse. The dissolution decree entered in 1977, awarded custody of the couple's only child to Smith, ordered Leone to pay child support, and allowed him to take the dependency tax exemption for those payments. Between 1977 and 1986, the court granted several show cause motions filed by Smith for delinquent child support payments and on December 19, 1986, the court issued a capias order for Leone because of arrearages. In 1987, however, the court dismissed the capias at Smith's request. Thereafter, Smith did not initiate any proceedings against Leone until March 25, 1992, after the child reached majority which resulted in a July 1993 order of the court to pay a $7,329.88 arrearage to Smith, $1,027.73 to the Department of Human services, and declining to find Leone in contempt. Leone appealed that order to our court; we reversed and remanded the matter with instructions to reassign the case to a different judge and conduct a de novo hearing on the issue of a private agreement between the parties. - 3 - Upon remand, the Administrative Judge assigned the case to himself and after review of the record and referee's findings ordered Leone to pay $7,329.88 to Smith, $1,027.63 to Human Services, found Leone in contempt, ordered a thirty day jail sentence but offered an opportunity to purge the contempt. This appeal by Leone is now the second appeal to our court on the same record in this case. Leone has assigned four errors for our review. The first assignment of error states: THE TRIAL COURT ACTED WITHOUT AUTHORITY BY ISSUING AN ORDER WITHOUT CONDUCTING A DE NOVO DETERMINATION OF THE APPELLEE'S MOTION TO SHOW CAUSE. Leone argues that the court should have assigned the case to a different judicial officer and that it erred by not holding a de novo hearing on the matter. Smith argues that the Administrative Judge properly handled the matter and did not err by reviewing the case without a hearing. Therefore, we must decide whether the proper judicial officer heard the case and whether that officer erred by not holding a de novo hearing. To resolve this issue, we must examine the rules which govern the administration of cases in Domestic Relations Division of Common Pleas Court. The Rules of Superintendence for courts of common pleas provide in part: R. 3. Administrative Judge - 4 - (B) Powers. The administrative judge *** shall have full responsibility for and control over the administration, docket, and calendar of the division which the judge serves. The administrative judge shall cause cases to be assigned to judges within the division * * Local Rule 2(A)(2) of the Cuyahoga County Court of Common Pleas, Domestic Division, states in part: When it is necessary for a case already assigned to a judge to be reassigned *** and the case *** is post decree, *** the administrative judge shall then assign one of the visiting judges to hear all issues pertaining to the case ***. Having two apparently conflicting rules, we determine that the trial judge ought to have directed the matter as suggested in the local rule. However, despite this failure, we conclude that as administrative judge, he caused the case to be transferred to his own docket in accord with the rules of superintendence and the earlier mandate issued by this court directing case reassignment. Having reached this conclusion, we now review the issue concerning the de novo hearing mandated in our remand order directing the Domestic Relations Court to conduct a de novo proceeding. The court conducted an independent review of the evidence already presented by the parties and, therefore, the court properly discharged its duty and we conclude the first assignment of error is overruled. Because the second and third assignments of error concern the same legal issues, we shall consider them together: - 5 - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADOPTING THE REFEREE'S REPORT, AS IT DID NOT CONTAIN FACTUAL FINDINGS SUFFICIENT TO ENABLE THE TRIAL COURT TO MAKE AN INDEPENDENT ANALYSIS OF THE ISSUES IN THE CASE. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO MAKE AN INDEPENDENT ANALYSIS OF THE FACTS AND LEGAL CONCLUSIONS FOUND IN THE REFEREE'S REPORT. Leone contends that the court did not independently analyze evidence of the oral agreement modifying the terms of the original dissolution decree and erred by failing to recognize and enforce it. Smith argues that the court did make an independent analysis in this case because the court made a finding of contempt and imposed a jail sentence. The issue for this court, then, is whether or not the trial court correctly analyzed the case and made proper legal conclusions upon the de novo review ordered by this court. The trial court's judgment entry indicates that the court made an independent review of the pleadings, report of the referee and objections filed thereto. We note that the court did not discuss evidence concerning an oral agreement between Leone and Smith concerning child support payments, the existence of which is referenced in our earlier opinion ordering a de novo review at pp. 2-3. *** The referee found that the husband made direct payments of $2,845 to the wife at the same time she began taking the dependency exemption for the child. On June 19, 1990, the husband paid $100 to the wife by check with a memo that it was - 6 - the final payment pursuant to the parties' agreement. At the arrearages show-cause hearing on February 17, 1993, the wife testified that she requested personal checks from the husband because, "[T]he Bureau of Support took four weeks to mail and by the time he mailed the check, it would take four weeks for me to receive anything. That is probably why we stopped." (Tr. l6). She further stated that she liked getting her money directly rather than going through the Bureau of Support. (Tr. l7). Further, we note from the referee's report that the parties entered into the following stipulations: l) the minor child reached age eighteen on February 3, 1993; 2) 62 months had elapsed from l2/15/86 to 2/3/92; 3) Smith received public assistance from 9/1/90 for 9 months; 4) $353.90 excluding 2% fee was paid through the CSEA; 5) Leone paid $2,845 directly to Smith; 6) the CSEA released $500 to Smith in 1987; and 7) Leone claimed the minor child as a tax exemption for 1977 through 1984 but did not from 1985 to 1991. This evidence corroborates Leone's position that the parties reached an oral modification of the child support order because each changed their position: Smith received payments directly from Leone to avoid the delays she encountered with the Bureau of Support and Leone paid a lesser amount while giving up the benefit of his tax exemption. Smith's testimony indicates that she initiated this agreement and having received benefits, she is now estopped to deny its existence. - 7 - The standard of review in cases of this distinction is whether or not the trial court abused its discretion. This court cannot substitute its judgment for that of the trial court unless, under the totality of the circumstances, the trial court abused its discretion. See Holcomb v. Holcomb (1989), 44 Ohio St.3d 128 at 131, and Terry v. Terry (1994), 99 Ohio App.3d 228. Here, we conclude that the trial court abused its discretion because it ignored the existence of a valid oral agreement between the parties whereby each party agreed to forego a benefit. The court's determination in this instance is not only against the manifest weight of the evidence regarding the existence of the agreement but also constitutes an abuse of discretion and is therefore reversed. These assignments of error are well taken. The fourth assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY AWARDING JUDGMENT AGAINST APPELLANT WHERE APPELLEE'S CLAIMS ARE BARRED BY LACHES. Leone claims that the equitable doctrine of laches applies because Smith delayed asserting her purported right to child support until after Nina had reached majority, accruing a seven year arrearage against Leone and leading him to conclude that he owed no further support. Smith does not deny the delay in filing, but claims that Leone is precluded from the court's equity powers because any - 8 - oral agreement between Smith and Leone contravened public policy, and further maintains that the record in this case does not show that her delay prejudiced Leone. The issue then which we must decide is whether Smith's seven year delay in bringing an action to collect arrearages is barred by the doctrine of laches. In Connin v. Bailey (l984), l5 Ohio St.3d 34, the Ohio Supreme Court defined laches as: *** an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. *** In order to invoke laches, the following, as set forth in Smith v. Smith (l959), 168 Ohio St. 447 *** must be established: "Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim." The trial court sitting in equity must recognize the circumstances of the parties before the court. We note that the county prosecutor represented both Human Services and Smith, which is problematic in itself; moreover, the totality of circumstances here reflects the parties agreed to resolve differences outside the courtroom, but the trial court failed to recognize what transpired between the parties. Only after the child reached majority and after Leone gave up the tax exemption, did Smith attempt to collect arrearages. We believe under these - 9 - circumstances these claims are barred by laches. This assignment of error is well taken. The judgment of the trial court is reversed, the judgments are vacated, the findings of contempt and sentence are vacated, and final judgment is entered for Leone. Judgment accordingly. - 10 - This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .