COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68708 AND 68709 CUYAHOGA COUNTY SUPPORT : ENFORCEMENT AGENCY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JEROME LOVELACE, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas, Juvenile Court Div. : Case Nos. 9471542 and 9471444 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Stephanie Tubbs-Jones, Esq. David Thompson Cuyahoga County Prosecutor 2938 E. 81 Street - (Up) By: Sharon Hawk, Esq. Cleveland, Ohio 44104 Assistant Prosecuting Attorney Diane Thompson The Justice Center 10210 Empire Avenue (Dn) 1200 Ontario Street Cleveland, Ohio 44108 Cleveland, Ohio 44113 Melissa Lovelace 3545 East 104th Street Cleveland, Ohio 44105 Jerome Lovelace 13734 Euclid Avenue East Cleveland, Ohio 44112 -2- -3- HARPER, J.: Plaintiff-appellant, the state of Ohio, Cuyahoga Support Enforcement Agency ("CSEA"), filed two separate complaints in the Court of Common Pleas of Cuyahoga County, Juvenile Division, in which it sought to enforce child support orders for children receiving public assistance. Both cases were set for hearing before a referee on January 9, 1995. The parents appeared at the hearing, but CSEA was not permitted to have a representative appear on its behalf. In State of Ohio, Cuyahoga Support Enforcement Agency ex rel. Thompson v. Thompson (Mar. 7, 1995), Cuyahoga C.P. No. 9471542, unreported, the trial court approved and adopted the referee's recommendation that the complaint be dismissed without prejudice as the mother saw no need to proceed against the father because he was currently unemployed. The trial court also approved and adopted the referee's recommendation in State of Ohio, Cuyahoga Support Enforcement Agency ex rel. Lovelace v. Lovelace (Mar. 7, 1995), Cuyahoga C.P. No. 9471544, unreported, that the complaint be dismissed without prejudice against the father since, according to the mother, he was actively and satisfactorily supporting his children. The trial court, in both cases, adopted and approved the referee's recommendation that CSEA did not have legal standing to proceed on the complaints pursuant to In re Owens (June 23, 1994), Cuyahoga App. No. 66452, unreported. CSEA appealed both dismissals, App. No. 68708 in Lovelace and App. No. 68709 in Thompson, and the appeals were consolidated for -4- record, briefing, hearing and disposition. CSEA claims in three assignments that the trial court erred in dismissing the actions without addressing its interests as the real party in interest. As the three assignments all relate to the propriety of the determination that CSEA was not a proper party to bring the actions, they are reviewed simultaneously. This court recently discussed at length the legislative history of the child support enforcement laws on both the state and federal levels in State of Ohio, Cuyahoga Support Enforcement Agency v. Lozada (July 10, 1995), Cuyahoga App. Nos. 67463, 67553, 67639, 67654, 67659, unreported. We choose not to repeat the discussion herein, but commence our review of the instant appeals by referring to R.C. 3111.07 which "clearly allows the CSEA to be a party where the support of the child has been assumed by the state." Id., 15. This statute reads: (A) The natural mother, each man presumed to be the father, *** each man alleged to be the natural father, and, if the party who initiates the action is a recipient of public assistance *** or if the responsibility for the collection of support for the child who is the subject of the action has been assumed by the child support enforcement agency *** [t]he child support enforcement agency of the county in which the child resides shall be made parties to the action brought pursuant to sections 3111.01 to 3111.19 of the Revised Code ***. (Emphasis added.) We recognized in Lozada that R.C. 3111.07 ensures that the CSEA represents the state in child support proceedings when the proceedings involve public assistance recipients. Lozada, 16, citing Crittendon v. Crittendon (1992), 82 Ohio App.3d 484, 489. The representation allows the state to protect its pecuniary -5- interest and recover the proper amount of child support funds from parents of children who previously received public assistance. 1 R.C. 3111.07 thus comports with both R.C. 5107.07(A) and Section 2 602(a)(26)(A), Title 42, U.S. Code , which require individuals who receive public assistance to assign their rights to support payments to the state department of human services ("DHS"). This court additionally concluded in Lozada that R.C. Chapter 3111, when viewed in its entirety, makes clear that regardless of 1 R.C. 5107.07(A) sets forth, in relevant part: The acceptance of aid under this chapter constitutes an assignment to the department of human services of any rights an individual receiving aid has to support from any other person, ***. 2 This code section provides: [Section] 602. State plans for aid and services to needy families with children; contents; approval by Secretary; records and reports; treatment of earned income advances (a) Contents A State plan for aid and services to needy families with children must-- (26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required-- (A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed; -6- whether a child receives public assistance, "the state continues to maintain a pecuniary interest in seeing that child support is paid by the parent/obligor and paid in the proper amount." Lozada, 18. In other words, Ohio's statutes require support payments to be forwarded to the appropriate DHS or CSEA by the parent/obligor even 3 if a child is not receiving public assistance. See, R.C. 3111.28 4 and 3113.06 . The DHS or child support enforcement agency, in turn, disburses the proper amount to the parent/obligee. The DHS and CSEA consequently possess a legitimate governmental interest in assuring that all parent/obligors satisfy all child support orders. Id., 19-21; see, Carelli v. Howser (1991), 923 F.2d 1208 (state has legitimate governmental interest in enforcing all child support orders, in part, to protect the public fisc). We thus concluded as follows in Lozada: We agree with the ruling of the Carelli court and find that the State of Ohio has an interest in all child support actions by virtue of either the residential parent's assignment of rights as public assistance recipients or the interest in enforcing child support awards in order to protect and ensure the integrity of the public fisc. *** 3 R.C. 3111.28 authorizes a child support enforcement agency to request a court order which requires a party to comply with a withholding or deduction requirement contained in a withholding or deduction notice issued under R.C. 3111.23. 4 This code section deals with the failure of a mother or father to pay maintenance costs for children who are either wards of the county or recipients of aid pursuant to R.C. Chapters 5107, 5113, and 5115, for which the county can pursue criminal charges or seek enforcement under R.C. Chapter 3115, Ohio's Uniform Reciprocal Enforcement of Support Act. -7- From a thorough reading of [R.C.] Chapters 3111. and 3113., together with the mandates of Title IV-A and Title IV-D of the Social Security Act, we find that the general assembly intended that the child support enforcement agencies be proper parties to all actions for the collection of child support; any other result would hinder the legitimate state interest spelled out by the general assembly for the enforcement of child support orders as well as the mandates of Title IV-A and Title IV-D , supra. (Emphasis and footnote added.) Lozada, 21-23. In the present case, CSEA set forth in the Lovelace and Thompson complaints that the mothers were recipients of public assistance or it assumed the responsibility for collection of support for the minor child(ren). In accordance with Lozada, the trial court erred in adopting and approving the referee's conclusion that CSEA had no legal standing to pursue these actions. See, Vance v. Banks (1994), 94 Ohio App.3d 475; State of Ohio, Cuyahoga Support Enforcement Agency ex rel. Graham v. Graham (June 22, 1995), Cuyahoga App. No. 67962, unreported; Warrick, Kasunich and Columbiana County Department of Human Services v. White (Apr. 20, 1994), Columbiana App. No. 93-C-59, unreported; compare, Dorsett v. Wheeler (Mar. 16, 1995), Paulding App. No. 11-94-3, unreported (trial court erred in awarding reimbursement to CSEA for governmental financial assistance because CSEA was not named a party in the original complaint or in accordance with the civil rules of procedure). 5 Any state's child support enforcement plan must meet the mandates of Title IV-A and Title IV-D of the Social Security Act of 1975, codified in Sections 601 through 615 and 651 through 666, Title 42, U.S. Code. -8- As stated supra, the referee based the conclusion that CSEA was not a proper party to these actions on In re Owens. Owens is an accelerated opinion which briefly sets forth the following facts: the parents were married; parentage was not in dispute; public assistance was not a factor; and CSEA and the relator filed an action in which they sought an award of child support. This court's conclusion that CSEA was properly dismissed from the action 6 7 was premised on R.C. 2151.231 and R.C. 3111.20 , statutes we found to be inapplicable to the facts. CSEA could not bring the action under the former statute because it expressly states that the parent, guardian or custodian of the child can initiate an action 6 R.C. 2151.231 provides: The parent, guardian, or custodian of a child may bring an action in juvenile court under this section requesting the court to issue an order requiring a parent of the child to pay an amount for the support of the child without regard to the marital status of the child's parents. 7 R.C. 3111.20 states in pertinent part: (C) [A]fter the probate court enters the acknowledgement upon its journal or the father voluntarily signs the birth certificate as an informant as provided in section 3705.09 of the Revised Code, the parent with custody of the child, the child's guardian or legal custodian, or the child support enforcement agency of the county in which the child or the guardian or legal custodian of the child resides may file a complaint pursuant to section R.C. 2151.231 in the juvenile court of that county requesting the court to order the parent who neglects or does not assume the parental duty of support to pay an amount for the support of the child, ***. -9- thereunder. Moreover, R.C. 3111.20 could not be used by CSEA since the parties did not contest parentage. This reasoning is consistent with our opinion in Lozada where we recognized that "under R.C. 3111.20, it is clear that the CSEA is a proper party in cases where the child is legitimized in probate court." Lozada, 15. Finally, R.C. 3111.07 was not a viable option for the CSEA to commence an action in Owens because the recoupment of public funds was not an issue. The facts of the within case are thus distinguishable from those in Owens. The referee's application of this decision to both Lovelace and Thompson and the trial court's approval thereof, was, therefore, improper. CSEA's assignments of error are sustained. Judgments reversed and causes remanded for proceedings consistent with this opinion. -10- It is ordered that appellant recover of appellees its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court, Juvenile Court Division 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. LEO M. SPELLACY, P.J., ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .