COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70602 DONNA M. OREFICE : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GARY V. OREFICE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division, No. D-119375. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor James R. Tanner, Esq. Assistant County Prosecutor Support Enforcement Division Thomas M. Cahill, Esq. Assistant County Prosecutor C.S.E.A. P.O. Box 93923 Cleveland, OH 44101-5923 For Defendant-Appellant: Barbara K. Roman, Esq. 1375 East Ninth Street One Cleveland Center, 20th Floor Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Gary Orefice, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which found that defendant-appellant owed $6,563.45 in past child support arrearages to his ex-wife, Donna Orefice, plaintiff-appellee. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS Gary Orefice, defendant-appellant, and Donna Orefice, plaintiff- appellee, entered into a common law marriage in January, 1974 in Cleveland, Ohio. Three children were born as issue of the marriage, Gary, Jr. (d.o.b. 9-30-74), Lashana (d.o.b. 10-10-76) and Rebecca (d.o.b. 4-24-78). The parties entered into a divorce in Cuyahoga County in April, 1981. Pursuant to the divorce decree, custody of the minor children was awarded to plaintiff-appellee with defendant-appellant retaining reasonable visitation rights. Defendant-appellant was also ordered to pay child support of $45.00 per week per child. On March 15, 1983, pursuant to an agreed judgment entry, defendant-appellant's child support obligation was reduced to $30.00 per week per child. Child support was collected through a wage order issued against defendant-appellant's employer, Ford Motor Company. On September 25, 1984, a show cause hearing was conducted before a domestic relations referee regarding defendant-appellant's failure to pay child support. At that time, the parties entered -3- into an agreement whereby defendant-appellant was allegedly relieved of the obligation to pay past and future child support in exchange for defendant-appellant's forfeiture of all visitation rights with his children. However, the subsequent judgment entry dated November 5, 1984 merely dissolved the wage order on defendant-appellant's employer, leaving all prior orders of the court in full force and effect including the order to pay child support. On February 1, 1985, defendant-appellant paid $609.00 on a previous child support arrearage. In conjunction with this payment, the parties executed a written release which provided that, in consideration of the $609.00 payment, plaintiff-appellee agreed to fully release and discharge defendant-appellant from all claims arising out of the parties' divorce relating to child support obligations. Plaintiff-appellee received public assistance during the following time periods: January 2, 1982 through February 29, 1984; November 1, 1984 through December 16, 1987 and October 1, 1988 through January 31, 1994. During this period, plaintiff-appellee did not attempt to collect child support from defendant-appellant nor did the Department of Human Services. In August, 1994, the Cuyahoga Support Enforcement Agency (CSEA) issued a Journal Entry noting that the couple's oldest child, Gary, Jr., had reached the age of majority. The order modified the child support obligations for the remaining children to $45.00 per week per child pending further court review. -4- The next scheduled hearing took place on October 21, 1994, at which time defendant-appellant was informed that his child support obligations did not terminate in 1984. Consequently, defendant- appellant owed a substantial child support arrearage to the Department of Human Services and to plaintiff-appellee. The case was then continued so that further discovery could be completed. On October 20, 1995, a final hearing was conducted before a domestic relations magistrate to determine the issues of emancipation and child support arrearages. At the hearing, the parties entered into a number of stipulations of fact: 1) That CSEA records indicated that the Department of Human Services is owed the sum of $47,213.33 as of October 20, 1995 as and for reimbursement of monies paid to plaintiff- appellee for the support of the minor children; 2) That CSEA record indicated that if any arrearage was owed to "Obligee" as of the date of the hearing, that plaintiff- appellee would be owed the sum of $6,563.45 as and for past child support. 3) That Gary and Lashana Orefice were fully emancipated effective September 30, 1992 and November 10, 1994 respectively; 4) That plaintiff-appellee waived her right to receive child support both at the September 25, 1984 hearing and in a release executed on February 1, 1995; 5) That defendant-appellant was continually employed at Ford Motor Company from 1984 to the present; -5- 6) That defendant-appellant did not receive a copy of the Journal Entry and Report of the 1984 hearing until the emancipation issue arose on October 21, 1994; and 7) That neither the Department of Human Services nor plaintiff-appellee initiated any proceeding against defendant-appellant to show cause as to why he had failed to pay support or any action to modify the child support obligation. On November 30, 1995, the domestic relations magistrate issued the following decision finding that two of the parties' children, Gary, Jr. and Lashana, were emancipated; that defendant-appellant owed $6,563.45 in past child support arrearages to plaintiff- appellee since February 1, 1985; that defendant-appellant owed $47,213.33 in past support arrearages to the Department of Human Services for monies paid to plaintiff-appellee while she was on public assistance since the 1984 court order; and that defendant- appellant was to pay $130.00 per month toward current child support for the youngest child, Rebecca (d.o.b. 4-27-78), plus another $130.00 per month on the past arrearage. Defendant-appellant filed written objections to the magistrate's decision on December 14, 1995. On April 3, 1996, the trial court overruled defendant-appellant's objections and adopted the decision of the magistrate. On May 3, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. -6- II. FIRST ASSIGNMENT OF ERROR Gary Orefice's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN FINDING THAT APPELLANT OWED A CHILD SUPPORT ARREARAGE TO MOTHER DESPITE (SIC) OF AN EXPRESS AGREEMENT AND WRITTEN RELEASE EXECUTED IN EXCHANGE FOR APPELLANT'S WAIVER OF HIS RIGHT TO VISITATION. A. THE ISSUE RAISED: CHILD SUPPORT ARREARAGE. Defendant-appellant argues, through his initial assignment of error, that the trial court erred in finding a $6,563.45 child support arrearage owed to plaintiff-appellee. Defendant- appellant maintains that he was expressly relieved of his child support obligations pursuant to a written agreement and release executed between defendant-appellant and plaintiff-appellee in exchange for defendant-appellant's forfeiture of all visitation rights with the couple's three children. It is defendant- appellant's position that this agreement and waiver are valid and enforceable thereby precluding any award of child support by plaintiff-appellee. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR ABROGATION OF CHILD SUPPORT. In Ohio, it has been held that a mother may not contract away any right which her minor children have to support from their father and may not contract away any obligation which she has as the children's natural guardian to enforce such right of support -7- on their behalf. Smith v. Smith (1964), 7 Ohio App.2d 4, 9; Harding v. Harding (March 17, 1994), Cuyahoga App. No. 64851, unreported. In Nelson v. Nelson (1990), 65 Ohio App.3d 800, 804, the Eleventh District Court of appeals, in dealing with this exact issue, determined: In Ohio, both statutory law and common law, as well as public policy, recognize: "The natural duty of the parents to provide their children with suitable shelter, food, and clothing until they are able to support themselves ***. "*** "A father's obligation to support his children is considered to be a duty owed to the state as well as to his minor children, since, if the father fails to fulfill his obligation there is a distinct possibility that the state will have to assume that obligation and that the children will be supported at public expense." 47 Ohio Jurisprudence 3d (1983) 67-69, Family Law, Section 608. Therefore, the parental obligation is one which transcends some of the common tenets of traditional law. See State v Ducey (1970), 25 Ohio App.2d 50, 54 O.O.2d 80, 266 N.E.2d 233; R.C. 2111.08. Furthermore, it would be unreasonable in all circumstances to permit the parents, either individually or jointly, to absolve themselves of this duty of support by entering into an agreement between themselves to that effect subsequent to a court order. See also Wise v. Wise (1993), 86 Ohio App.3d 702, 704; Rhoades v. Rhoades (1974), 40 Ohio App.2d 559, 563. -8- C. DEFENDANT-APPELLANT'S CHILD SUPPORT OBLIGATION DID NOT TERMINATE BY AGREEMENT. In the case sub judice, a review of the record demonstrates that both the agreement entered into by the parties on September 25, 1984 and the waiver executed by plaintiff-appellee on February 1, 1985 which purported to relieve defendant-appellant of his child support obligations in exchange for cessation of defendant-appellant's visitation rights were illegal and, as such, unenforceable. In re Dissolution of Marriage of Lazor (1991), 59 Ohio St.3d 201, paragraph one of syllabus; McDonald v. McDonald (1994), 98 Ohio App.3d 822, 826. Clearly, it was not within the power of either parent to enter into an agreement the purpose of which was to relieve defendant-appellant of his duty to support Gary, Jr., Lashana and Rebecca. While it is true that a parent may relieve himself from "liability" for support by extra-judicial agreement, a parent may not summarily dispense with future support obligations in the same manner. Nelson v. Nelson, supra. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Gary Orefice's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN FAILING TO FIND THAT MOTHER'S CLAIM FOR CHILD SUPPORT ARREARAGES WAS BARRED BY THE DOCTRINE OF LACHES. -9- A. THE ISSUE RAISED: LACHES. Defendant-appellant argues, through his second assignment of error, that any child support arrearage allegedly owed to plaintiff-appellee should be barred by the doctrine of laches. Defendant-appellant maintains, that based upon plaintiff- appellee's release, waiver and years of subsequent inaction, any collection of child support arrearage on plaintiff-appellee's behalf would be inequitable. Defendant-appellant did not raise the defense of laches in the trial court. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR LACHES. The Ohio Supreme Court has stated that "laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It signifies delay independent of limitations in statutes. It is lodged principally in equity jurisprudence." Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, quoting Smith v. Smith (1957), 107 Ohio App. 440. Delay itself does not give rise to the defense of laches, and in order to invoke the doctrine it must be demonstrated that the person claiming the defense has been materially prejudiced by the delay of the person asserting the claim. Id. See, also, Seegert v. Zietlaw (1994), 95 Ohio App.3d 451, 457; State ex rel. N. Olmsted Fire Fighters Assn. v. N. Olmsted (1992), 64 Ohio St.3d 530, 536-537. -10- C. THE TRIAL COURT DID NOT ERR IN FAILING TO APPLY DOCTRINE OF LACHES. In the instant case, a review of the record demonstrates that the trial court did not err in failing to apply the doctrine of laches to defendant-appellant's child support obligation. Initially, it must be noted that defendant-appellant failed to raise the affirmative defense of laches in the trial court. It is well established that a party cannot raise new issues for the first time on appeal and that a reviewing court will not consider issues which the appellant failed to raise in the trial court. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41; McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Management, Inc. (1993), 87 Ohio App.3d 613; Cleveland v. Association of Fire Fighters (1991), 73 Ohio App.3d 220. It is fundamental to appellate review that issues not presented to the trial court may not be initially reviewed on appeal, such that a party may not assert new legal theories for the first time before the appellate court. Kleinfeld v. Link (1983), 9 Ohio App.3d 29; AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29. Consequently, defendant-appellant cannot now argue for the first time on appeal that the doctrine of laches should have been applied as a bar to his child support obligation owed to plaintiff-appellee. Defendant-appellant's second assignment of error is not well taken. -11- IV. THIRD ASSIGNMENT OF ERROR Gary Orefice's, defendant-appellant's, third and final assignment of error states: THE TRIAL COURT ERRED IN FAILING TO INCLUDE IN THE RECORD A CHILD SUPPORT WORKSHEET AS REQUIRED BY O.R.C. 3113.25 [3113.215] IN ORDER TO REFLECT THE BASIS UPON WHICH THE TRIAL COURT REACHED ITS DECISION. A. THE ISSUE RAISED: CHILD SUPPORT WORKSHEET. Defendant-appellant argues, through his third and final assignment of error, that the trial court erred in failing to include in the record a child support worksheet as required by R.C. 3113.215. Specifically, defendant-appellant maintains that the trial court modified his child support obligation for the couple's youngest child Rebecca without providing adequate basis for the modification on the record. Defendant-appellant's third and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR CHILD SUPPORT. An appellate court employs an abuse of discretion standard when reviewing matters concerning child support. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. A trial court will not be found to have abused its discretion unless its decision involves more than an error of law or judgment and can be characterized as unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying an abuse of discretion standard, an appellate court must not substitute its judgment for that of the trial court. In re Jane Doe I -12- (1991), 57 Ohio St.3d 135, 138. C. THE TRIAL COURT DID NOT ERR IN FAILING TO INCLUDE A CHILD SUPPORT WORKSHEET IN THE RECORD. R.C. 3113.215(B)(4) provides in pertinent part: If an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the support order in accordance with the schedule and pursuant to the applicable work sheet in division (E) of this section. *** Defendant-appellant correctly maintains that, pursuant to R.C. 3113.215, the trial court is required to complete a child support computation worksheet in calculating an obligor's child support obligation and make that worksheet part of the trial court record. Marker v. Grimm (1992), 65 Ohio St.3d 139, paragraph one of syllabus. However, a review of the trial court's judgment in this case demonstrates that no actual re-calculation of child support occurred. The trial court merely ordered that the prior agreed judgment entry regarding defendant-appellant's child support obligation, dated March 15, 1983, be enforced. The order provided in relevant part: Whereas, the parties to the instant action have agreed through and by their respective attorneys to a determination of present child support. It is ordered, adjudged and decreed that defendant, Gary Orefice, pay to the plaintiff child support in the amount of Thirty Dollars ($30.00) per child per week, until further order of this Court. *** -13- (Emphasis added.) It is apparent that the magistrate's decision, which was adopted by the trial court, did not modify or re- calculate defendant-appellant's child support obligation. The decision only reflected defendant-appellant's prior agreement regarding the amount of child support to be paid recognizing that two of the three children born as issue of the couple's marriage had reached the age of emancipation and were no longer subject to the agreed child support entry of March 15, 1983. Since no modification or child support calculation took place, the trial court was not required to include in the record a child support worksheet pursuant to R.C. 3113.215. Defendant-appellant's third assignment of error is not well taken. Judgment of the trial court is affirmed. -14- It is ordered that appellee recover of appellant her 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 Domestic Relations 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. JAMES D. SWEENEY, P.J. CONCURS; PATRICIA BLACKMON, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .