COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72428 S/O, ex rel. CUYAHOGA CHILD : SUPPORT ENFORCEMENT AGENCY and : CHARLENE ARMSTRONG : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DONALD SANDERS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 2, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Juvenile Court Division Case No. 297070 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiffs-Appellees: For Defendant-Appellant: PAMELA S. CLAY, ESQ. WILLA M. HEMMONS, ESQ. Assistant County Prosecutor 22837 Chagrin Blvd. P. O. Box 93894 Beachwood, Ohio 44122 Cleveland, Ohio 44101-5894 PATRICIA ANN BLACKMON, A.J.: Donald Sanders, defendant-appellant, appeals a decision by the trial court in favor of Charlene Armstrong, plaintiff-appellee, in -2- her action for past due child support. Sanders assigns the following four errors for our review: I. IT WAS PREJUDICIAL ERROR TO HAVE THE PROSECUTOR'S OFFICE REPRESENT PLAINTIFF- APPELLANT WHEN THE COUNTY WAS NOT OWED ANY CHILD SUPPORT. II. IT WAS PREJUDICIAL ERROR FOR THE COURT TO IGNORE EVIDENCE OF THE BIRTH CERTIFICATE WITH THE HUSBAND'S NAME LISTED AS THE SUBJECT CHILD'S FATHER. III. THE MAGISTRATE ERRED WHEN HE REFUSED TO RECOGNIZE THAT THE PARTIES HAD ADJUSTED THE CHILD SUPPORT OBLIGATIONS BETWEEN THEMSELVES IN A DE NOVO AGREEMENT. IV. THE MAGISTRATE ERRED IN NOT FINDING THAT LACHES PRECLUDED THE MOTHER'S CHILD SUPPORT CLAIM. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On July 30, 1974, Armstrong filed a bastardy complaint in juvenile court against Donald Sanders alleging Sanders was the father of her daughter, Bonisha (D.O.B. 7/4/74). Bonisha's birth certificate listed Benny Townsend as her father. The case was heard before a referee. Sanders admitted paternity and was adjudged the father of the child on September 23, 1974. Sanders was ordered to pay for Armstrong's maternity expenses ($426.86) and past care ($165.00.) Payments were to be made to the County Welfare Department. The following child support order was issued: Defendant to pay through court $15.00 per week as current support. Money is to go to the County Welfare Department as Trustee. -3- From 1974 to 1984, Sanders paid the child support as ordered. However, in 1984, he began making payments directly to Bonisha and her mother, Charlene. In mid-1995, when Bonisha was 20 years old, an administrative hearing was held before CSEA. In a recommendation issued 6/16/95, CSEA determined that, as of June 6, 1995, Sanders was $14,083.67 in arrears in his support payments. CSEA recommended that the court order Sanders to pay $195.00 per month plus a 2% fee until the arrearage was paid. Sanders filed a notice of objections to CSEA's findings. Via affidavit, he argued he did not owe any past due support. He also argued that, at the time Bonisha was conceived, Armstrong was married to Benny Townsend. A mistake of fact hearing was held on August 10, 1995. Sanders argued that he had been making payments to Armstrong and Bonisha. He produced evidence through money order receipts of $2345.00 in payments made to Armstrong. He also produced evidence of over $3700.00 in payments made to Bonisha and to Central State University on her behalf. Sanders also submitted letters written to him by Bonisha indicating the receipt of payments made by him. The magistrate gave Sanders credit for the $2345.00 in payments made to Armstrong and reduced the child support arrearage to $11,560.00. Sanders was ordered to pay $65.00 per month plus a 2% fee through CSEA to be applied to the child support arrearage. Sanders was ordered to pay $100.00 for Armstrong's maternity -4- expenses and $78.67 to the Department of Human Services for past care. This appeal followed. In his first assignment of error, Sanders argues the Prosecutor's office should not have been present at the hearings held in the case. He argues that, because there is no evidence that Armstrong or Bonisha ever received welfare, the state had no valid interest in the proceedings. We disagree. R.C. 3111.20 provides: A parent, guardian, or legal custodian of a child, the person with whom the child resides, or the child support enforcement agency of the county in which the child, parent, guardian, or legal custodian of the child resides may file a complaint pursuant to [R.C. 2151.231] in the juvenile court of that county requesting the court to order a parent who neglects or does not assume the parental duty of support to pay an amount for the support of the child, may contact a child support enforcement agency to issue an administrative order for the payment of child support pursuant to division (D) of this section. (Emphasis added.) The language of R.C. 3111.20 makes clear that the CSEA is a proper party in all actions for collection of child support. State of Ohio, CSEA & Seals v. Seals (May 9, 1996), Cuyahoga App. No. 69249, unreported; Starr v. Starr (1996), 109 Ohio App.3d 116, 119; State ex rel, Lamier v. Lamier (1995), 105 Ohio App.3d 797, 802. The state's legitimate government duty to protect the public fisc gives it a pecuniary interest in all child support orders. Cuyahoga Cty. Support Enforcement Agency v. Lozada (1995), 102 Ohio App.3d 442, 454. -5- While the primary responsibility for the protection of children lies with their parents, it is the responsibility of the state to protect the welfare of its citizens. It is the state's welfare responsibility that requires it to step in to take the place of a parent who abdicates his or her responsibility to support a child. It is also this welfare responsibility that requires the state to properly protect public funds, hence creating a pecuniary interest in child support actions which could have the result of depleting or injuring the public fisc. Id. Sanders' first assignment of error is overruled. In his second assignment of error, Sanders argues the court erred by not considering the fact that another man, Benny Townsend, was listed as the father on Bonisha's birth certificate. The order of paternity was issued in 1974. Sanders did not raise the issue of the birth certificate at the time of the original order and now claims he did not find out that Benny Townsend was listed as Bonisha's father until Armstrong filed her action for back child support. Though he argues it constitutes newly discovered evidence, the birth certificate itself reveals it was filed on July 16, 1974. Consequently, it was available and could have been discovered through due diligence. Since he did not appeal the paternity judgment, the trial court did not err in denying Sanders another hearing on the issue of paternity before adjudicating Armstrong's claim for back child support. Sanders' second assignment of error is overruled. In his third assignment of error, Sanders argues the magistrate erroneously refused to recognize an agreement between -6- the parties to adjust the child support obligations. He argues that the trial court should have given him credit for the money paid to Bonisha and others on her behalf as well as for amounts paid to Armstrong directly. In support of this argument, Sanders cites In re Lazor (1991), 59 Ohio St.3d 201. In Lazor, the parties' separation agreement, which was later incorporated into their decree of dissolution, included a provision allocating the burden of support between them. However, in Lazor, the parties were not under an existing support order at the time they entered into their agreement. Lazor does not give the parties the right to modify an existing support order without the approval of the court. R.C. 3113.21(M)(4) provides as follows: A court with jurisdiction over a support order may modify an obligor's duty to pay a support payment that becomes due after notice of a petition to modify the support order has been given to each obligee and to the obligor before a final order concerning the petition for modification is entered. (Emphasis added.) Under no circumstances may a trial court retroactively modify a child support order beyond the date the motion to modify is filed. Gerlach v. Gerlach (Nov. 25, 1997), Franklin App. No. 97APF03-343, unreported. Accordingly, a support order cannot be modified unless one of the parties files with the court a petition to modify the order. Sanders claims that, in approximately 1984, he and Armstrong agreed that he should send payments directly to Bonisha in order to teach -7- her to be more responsible. However, neither party petitioned the court to modify the existing support order. Without a court order, the parties could not alter the original support order. Consequently,the trial court did not err in refusing to recognize the alleged agreement. Furthermore, R.C. 2301.36 provides that any support payments not made through the bureau of support in violation of a divorce decree shall be deemed gifts. In this case, although the support order arose from a bastardy action rather than a divorce decree, the order contained the specification that support payments be made through the court. However, R.C. 2302.36(A) does not create a conclusivepresumption that support payments not made in accordance with court orders are gifts. Mihna v. Mihna (1989), 48 Ohio App.3d 303, 305. (Emphasis added.) The statute simply places the burden of proving that payments made directly to a payee spouse are made to discharge some obligation other than support. *** R.C. 2301.36(A) gives a payor spouse a sufficient opportunity to rebut the presumption that support payments not made through the bureau are gifts. Id. The Mihnacourt refused to give the obligor father credit for tuition payments made on behalf of his children. As a general rule, a payor spouse is not entitled to a credit against arrearages for overpayment of support obligations. Circumstances may give rise to situations where the court may credit a payor spouse's arrearages against overpayments in support money. The equitable decision to grant a credit, however, rests in the sound discretion of the court. -8- Id. (Citations omitted.) We find no evidence that the trial court abused its discretion in this case. The trial court allowed Sanders credit for the payments Sanders proved he made to Armstrong. Sanders presented evidence of some payments to Bonisha and to Central State but made no allegations that the payments exceeded the amount owed under the support order. There was no reasonable basis upon which the trial court could determine that Sanders made any overpayment of support. In light of Sanders' failure to comply with the original support order, the court did not abuse its discretion by failing to give him credit for the payments made to Bonisha and to Central State. Sanders' third assignment of error is overruled. In his fourth assignment of error, Sanders argues the magistrate erred in not finding Armstrong's claim precluded by the doctrine of laches. Laches is an omission to assert a right for an unreasonable and unexplained length of time under circumstances prejudicial to the adverse party. State ex rel. Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 275. A successful laches defense must include a showing of material prejudice resulting from the claimant's delay. Smith v. Smith (1959), 168 Ohio St. 447, 457. See also State ex rel SuperAmerica Group v. Licking Cty. Bd. Of Elections (1997), 80 Ohio St.3d 182, 186; State ex rel. Scioto County CSEA v. Gardner (1996), 113 Ohio App.3d 46, 58 [citing Wright v. Oliver (1988), 35 Ohio St.3d 10, 11]. Sanders argues that, because of Armstrong's twenty year delay in bringing her action for past due child support, many of the -9- records he needed to substantiate his support payments were lost or destroyed. He argues he was materially prejudiced by the delay. Armstrong argues that laches is inapplicable to her claim because it was brought within five years after Bonisha became eighteen as required by R.C. 3111.05. However, the fact that Armstrong's action was brought within the statutory time period does not necessarily render it immune to a laches defense. In Wright v. Oliver (1988), 35 Ohio St.3d 10, the court ruled that laches may be applicable to a support action commenced within the statutory time frame where there is a showing of material prejudice to the obligor. Id. at 12. See also Payne v. Cartee (1996), 111 Ohio App.3d 580, 590; Park v. Ambrose (1993), 85 Ohio App.3d 179, 184; Hulett v. Hulett (1989), 45 Ohio St.3d 288, 295. Therefore, we must determine whether Armstrong's delay in bringing her action for past due child support was prejudicial to Sanders. In reviewing the trial court's refusal to apply the doctrine of laches to Armstrong's case, we must apply an abuse of discretion standard. See Ferree v. Sparks (1991), 77 Ohio App.3d 185, 188. See also State ex rel. Scioto County Child Support Enforcement Agency v. Gardner (1996), 113 Ohio App.3d 46, 57 [citing Allen v. Allen (1990), 62 Ohio App.3d 621, 624.] We cannot conclude that the trial court abused its discretion in this case. Though some courts have held that laches may apply where the delay results in the destruction of records necessary to establish compliance with the custody order, the determination of whether to apply laches is a question of fact to be determined -10- according to the individual circumstances of each case. Gardner at 57. The alleged agreement between the parties, which Sanders argued was the reason he stopped making support payments through the court as ordered, did not relieve him of his support obligation. He did not prove compliance with the support order, nor did he prove he was unable to make the payments as ordered. See Garrison v. Garrison (June 5, 1987), Montgomery App. No. 10256, unreported. A parent who has been ordered by the court to make child support payments is aware not only of the natural and statutory obligations to support minor children but also of the extent of that obligation as fixed by the court. His failure to heed his obligations does not excuse him from those duties nor does it provide him with a basis for claiming prejudice when he is called to account. Troxell v. Troxell (May 21, 1986), Hamilton App. No. C-850456, unreported. Sanders argues that Armstrong's delay in bringing her action resulted in his inability to produce evidence to substantiate the payments made to Armstrong. Even if he had produced substantiating documents, the trial court was under no obligation to credit those payments against the arrearages since the payments were not made in compliance with the court order. At least one court has held that the inability to produce substantiating records may justify application of the laches doctrine. Gerlach v. Gerlach (Nov. 25, 1997), Franklin App. No. 97APF03-343, unreported. -11- In Gerlach, the court upheld a finding that a mother's claim for past due child support was barred by laches. The finding was based upon the obligor's claim that, because of the eighteen year delay in bringing her action for past due child support, he was unable to get canceled checks from his bank to substantiate the payments made because his bank kept records for only six years. Upon its initial review of the obligor's claim, the court did not believe that the bank's policy necessarily prevented the obligor from establishing what payments were made. However, following a remand of the case based upon objections filed by the obligee, the court changed its ruling and held that the delay had materially prejudiced the obligor.1 Though it upheld the decision in an abuse of discretion review, the appellate court wrote we tend to agree with the trial court's initial assessment. Id. The appellate court deferred to the trial court's decision on the issue of laches. We give the same deference to the ruling in this case and conclude there was no abuse of discretion. Sanders' fourth assignment of error is overruled. Judgment affirmed. 1 It is significant to note that the order in Gerlach, unlike the order in this case, called for the obligor father to make the child support payments directly to the child's mother. Though the amount was contested, both parties agreed that the obligor's payments were made to the mother. -12- It is ordered that Appellee recover of Appellant 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 Juvenile Court Division of 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. Exceptions. SPELLACY, J., and CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .