COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70805 KATHLEEN A. THEODUS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY B. THEODUS, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE DOMESTIC RELATIONS DIVISION COURT OF COMMON PLEAS CASE NO. D-164414 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: KATHLEEN THEODUS, PRO SE 5906 BRADLEY AVENUE PARMA, OHIO 44129 For Defendants-Appellees: STEPHANIE TUBBS JONES PROSECUTING ATTORNEY SANDRA L. WALKER (#0013996) ASSISTANT PROSECUTING ATTORNEY CUYAHOGA CHILD SUPPORT ENFORCEMENT AGENCY/ CUYAHOGA DEPARTMENT OF HUMAN SERVICES P.O. BOX 93923 CLEVELAND, OHIO 44101-5923 - 2 - SPELLACY, J.: Plaintiff-appellant Kathleen Theodus ("appellant") appeals from the judgment of the trial court that she and defendant- appellee Jeffrey Theodus owe $7,395.42 to the Cuyahoga County Department of Human Services for child support arrearages. Appellant assigns the following error for review: THE TRIAL COURT ERRED IN NOT ORDERING A STATE HEARING AND AUDIT OF THE CASE THEODUS VS THEODUS OF WHICH THE PLAINTIFF-APPELLANT WAS DENIED ON MAY 15, 1995, WHICH IS THE USUAL DUE PROCESS PER THE OHIO REVISED CODE 5101.35 AND BALDWIN'S DOMESTIC RELATIONS LAW, CHILD SUPPORT ENFORCEMENT T 22.02. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. Appellant and Jeffrey Theodus were divorced on March 28, 1986. Jeffrey Theodus was ordered to pay child support through the Bureau of Support for the couple's two minor children. On January 26, 1995, appellant and Theodus filed in Domestic Relations Court an agreed motion to correct and suspend child support. Appellant and Theodus resumed living together in 1990 and asked the trial court to end Theodus' child support obligation and determine Theodus owed no balance on any child support arrearage. A hearing was held before a magistrate on December 4, 1995. The magistrate issued its decision on January 23, 1996. Evidence submitted at the hearing by the assistant county prosecutor re- vealed appellant received public assistance from December 1, 1985, - 3 - to February 28, 1987, and from October 1, 1987, through June 30, 1989. During most of that time, Theodus paid child support directly to appellant. The Department of Human Services determined Theodus owed it arrearages as any support obligations are assigned to the agency if the recipiant receives public assistance. Appel- lant contacted various employees of the agency as well as the prosecutor's office and was told arrearage amounts which varied widely. The magistrate determined the arrearage owed was $7,395.42 and suspended the current child support obligation of Theodus. Appel- lant filed objections to the magistrate's decision in which she asked for an audit to determine the correct arrearage amount. The judgment of the trial court adopted the $7,395.42 arrearage calcu- lation of the magistrate and overruled appellant's objection. II. In her sole assignment of error, appellant contends she was denied due process because she was not afforded a state hearing and audit regarding the amount of the arrearage. Appellant argues she was denied her right to an administrative remedy in determining the correct amount owed the Department of Human Services by appellant and Jeffrey Theodus. Appellant asked the trial court for an audit in her objections to the magistrate's decision. The Cuyahoga Child Support Enforcement Agency/Cuyahoga Depart- ment of Human Services, a defendant-appellee in this case, argues appellant waived this issue by not raising the issue below first. - 4 - Generally, the failure to raise a constitutional issue below constitutes a waiver of that issue upon appeal. See State v. Awan (1986), 22 Ohio St.3d 120. However, appellant did request an audit in her objections to the magistrate's decision. Although appellant cited to no statutory authority when making her objection to the magistrate's decision, she did raise the issue adequately enough to preserve the right to appeal the issue. An applicant, participant or recipient of public assistance may request a state hearing. R.C. 5101.35(B). That person may make an administrative appeal of the state hearing decision to the director of the state department. R.C. 5101.35(C). Appeal from the administrative appeal decision may be made to the court of common pleas, pursuant to R.C. 119.12. R.C. 5105.35(E). Appellant asserts she was denied her rights to an administrative determination of the arrearage amount by the trial court. In essence, appellant is requesting an administrative review of the judgment of the trial court. There is no statutory or case law support for such a request. Appellant chose not to pursue her administrative remedies when she invoked the jurisdiction of the court of common pleas upon the filing of her motion. The trial court had continuing jurisdiction over the child support order. Peters v. Peters (1968), 14 Ohio St.2d 268. The trial court alone had jurisdiction to determine whether Jeffrey Theodus' current child support obligation should cease. Whether appellant first should have pursued her adminis- - 5 - trative remedies in determining the amount of arrearage is not at issue in the instant case. Failure to exhaust administrative remedies is not a jurisdictional defect, and such a failure will not justify a collateral attack on an otherwise valid and final judgment; it is an affirmative defense which must be timely asserted in an action or it will be considered waived. Gannon v. Perk (1976), 46 Ohio St.2d 301, 309-310. Appellant chose to forego the administrative process when she asked the trial court to determine the correct amount of the arrearage. Those remedies cannot now be used to collaterally attack the judgment of the trial court. Appellant was not denied due process as she has had her day in court and was given an opportunity to be heard. Appellant's assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellants 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 Domestic Relations Division of the Common Pleas 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 M. PORTER, P.J. and JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 of decision by the .