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Report of the Family Law Committee

To the Council of Delegates:

The Family Law Committee respectfully requests your favorable consideration of the following two legislative proposals designated as Exhibits A and B.

A. A proposal to allow parties to bring paternity actions directly to the juvenile court.
B. A proposal to permit the charging of interest on judgments for child support arrearages.

Respectfully submitted,
Melissa Graham-Hurd, Akron
Chair

Exhibit A
The Family Law Committee recommends the repeal of ORC §3111.381 and the amendment of ORC §3111.07 to allow parties to bring paternity actions directly to the juvenile court.

With the creation of the administrative paternity process in 1992, Ohio law required anyone seeking to establish paternity to use the administrative procedures first, before being allowed to file in juvenile court. This statute, originally ORC §3111.21, was recently renumbered ORC §3111.381.

The rationale for this requirement is not clear. At that time, Ohio, along with other states, was threatened with federal sanctions for failing to establish enough paternity determinations. By forcing all paternity litigants to use the administrative process, the child support enforcement agency (CSEA) could claim increased numbers of completed paternity establishments. At the time, the State claimed this statute would relieve any "burden" on the courts by increased paternity establishments. As a practical matter, however, most paternity actions are filed by the CSEA, very few cases are brought by individuals.

This provision has been ignored in some Ohio courts, and substantially modified in others, to allow direct filing after a pro forma administrative proceeding. Other courts, however, refuse to allow private parties to file a paternity action until the administrative proceeding is completed. The strict interpretation of this statute creates substantial barriers to access to the court by aggrieved parties.

For fathers who may be seeking visitation or custody, strict interpretation of the statute may delay or even prevent judicial relief. If the mother of the child refuses to participate in the administrative paternity action, the CSEA cannot determine paternity administratively. Absent this completed administrative proceeding, the father is denied the ability to file an action in the juvenile court.

On the other hand, case law in certain appellate districts can force unwed mothers to choose between receiving an immediate support order and collecting on back support and hospital costs. The CSEA may only enter administrative orders for current support. It cannot order collection of back support (from birth) or award a judgment for hospital costs. At least one appellate district, however, has ruled that unless a party files objections to the decision of the administrative hearing officer within 30 days of that decision, a subsequent action for other relief is barred. Therefore, in order to collect back support, the mother of the child must seek administrative paternity, object to the results of that administrative proceeding (including any order for current support), then bring a new action for paternity, all within strict timetables.

Finally, where the parties reach an out-of-court agreement on issues of support, custody and visitation, they cannot bring their agreement directly to court, but must go through the farce of bringing an administrative action, then file objections to that action in order to present their agreement to the court.

The Family Law Committee therefore proposes the repeal of ORC §3111.381. The repeal of this statute would not prevent a party from seeking administrative paternity establishment. It will allow parties with issues that cannot be resolved administratively to bring those issues directly to the juvenile court. We would note that ORC §3111.04(D) has been interpreted to allow the CSEA, but not the mother of the child, to bring a direct paternity action where the child receives public assistance.

It is assumed that there will be opposition to this change from the Department of Jobs and Family Services.

First, there is no requirement under federal law that would require all paternity actions to be brought administratively. The federal law merely requires states to have "expedited procedures" available for establishing paternity. The U.S. Department of Health and Human Services, in the past, viewed "expedited procedures" to include the use of magistrates to expedite matters on the court docket. Since this change would not prevent a party from seeking administrative paternity establishment, the federal requirements will still be met for an expedited process.

Second, the state may have concerns about parties conspiring to deny state claims for assigned medical support or back child support by bringing matters directly to court, and settling without notice to the CSEA. The proposal therefore amends ORC §3111.07 to require anyone filing a paternity action to notify the CSEA of the county where the action is filed. With a statewide computer system, the local CSEA can quickly determine if there is any state interest in the proceeding, and join as a party. Under ORC §3111.07(B), the CSEA may always intervene in the action if the child received public assistance at some time. On the other hand, if there is no state interest, the CSEA need not participate in the "private" paternity action, especially where the core dispute is not parentage, but custody or visitation—matters of no interest to the CSEA.

Finally, this change will have little impact on the courts because few parties have the resources or the interest to pursue the matter beyond the CSEA’s administrative arena. Most paternity actions are not brought by the parties, but instead are pursued by the CSEA, in an effort to recover state funds expended for public assistance.

3111.07 (A) The natural mother, each man presumed to be the father under section 3111.03 of the Revised Code, and each man alleged to be the natural father, and, if the party who initiates the action is a recipient of public assistance as defined in section 3111.04 of the Revised Code 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 under Title IV-D of the "Social Security Act," 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended, the 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 3111.18 of the Revised Code or, if not subject to the jurisdiction of the court. The child support enforcement agency of the county in which the action is filed shall be given notice of the action pursuant to the Rules of Civil Procedure and shall be given an opportunity to be heard. The court may align the parties. The child shall be made a party to the action unless a party shows good cause for not doing so. Separate counsel shall be appointed for the child if the court finds that the child’s interests conflict with those of the mother.

If the person bringing the action knows that a particular man is not or, based upon the facts and circumstances present, could not be the natural father of the child, the person bringing the action shall not allege in the action that the man is the natural father of the child and shall not make the man a party to the action.

(B) If an action is brought pursuant to sections 3111.01 to 3111.18 of the Revised Code and the child to whom the action pertains is or was being provided support by the department of job and family services, a county department of job and family services, or another public agency, the department, county department, or agency may intervene for purposes of collecting or recovering the support.

§ 3111.381 [REPEALED] (A) Except as provided in division (B) of this section, no person may bring an action under sections 3111.01 to 3111.18 of the Revised Code unless the person has requested an administrative determination under section 3111.38 of the Revised Code of the existence or nonexistence of a parent and child relationship.

(B) If the alleged father of a child is deceased and proceedings for the probate of the estate of the alleged father have been or can be commenced, the court with jurisdiction over the probate proceedings shall retain jurisdiction to determine the existence or nonexistence of a parent and child relationship between the alleged father and any child without an administrative determination being requested from a child support enforcement agency.

If an action for divorce, dissolution of marriage, or legal separation, or an action under section 2151.231 or 2151.232 of the Revised Code requesting an order requiring the payment of child support and provision for the health care of a child, has been filed in a court of common pleas and a question as to the existence or nonexistence of a parent and child relationship arises, the court in which the original action was filed shall retain jurisdiction to determine the existence or nonexistence of the parent and child relationship without an administrative determination being requested from a child support enforcement agency.

If a juvenile court or other court with jurisdiction under section 2101.022 [2101.02.2] or 2301.03 of the Revised Code issues a support order under section 2151.231 or 2151.232 of the Revised Code relying on a presumption under section 3111.03 of the Revised Code, the juvenile court or other court with jurisdiction that issued the support order shall retain jurisdiction if a question as to the existence of a parent and child relationship arises.

 

Exhitit B
The Family Law Committee recommends to the Council of Delegates a proposal to amend ORC §3123.171 to restore the law regarding interest on child support judgments as it existed prior to House Bill 657 of the 124th General Assembly.

Traditionally, a judgment for child support arrearage was no different from any other judgment. Interest accrued at the judgment rate on the unpaid balance of that judgment in accordance with ORC §1343.03.

Ten years ago the legislature enacted ORC §3113.219, which provided for the award of pre-judgment interest on child support arrearage. The trial court was required to find that the failure to pay child support was "willful" before they could assess this pre-judgment interest. However, no restriction was placed on post-judgment interest. ORC §3113.219 was renumbered 3123.17 in Senate Bill 180 of the 124th General Assembly, enacted in 2001.

H.B. 657 of the 124th General Assembly, effective Dec. 13, 2002, added new ORC §3123.171, which prohibits the charging of interest on judgments for child support arrearage unless the trial court has made a specific finding of "willfulness" under ORC §3123.171. The impact on existing judgments for child support is not clear. While the Ohio Constitution would appear to prohibit retroactive application of this statute to interest accumulated on unpaid judgments prior to December 13, 2002, it may well prohibit the collection of interest on those older judgments after the effective date of the statute.

It is clear that this statute creates new obstacles for persons seeking to collect on unpaid child support, since courts are often unwilling to makes this finding of "willfulness" in the absence of the defaulting obligor, where before they would be willing to enter money judgment for the amount of the arrearage calculated by the child support enforcement agency or obligee.

The Family Law Committee proposes to repeal existing ORC §3123.171, and enact a new version of the statute, which would specifically state that a judgment for unpaid child support would accrue interest at the judgment rate set forth at ORC §1343.03. This proposed new statutory language would restore the law as it existed prior to HB 657. Interest would accrue automatically at the judgment rate on any child support arrears reduced to judgment by a court. The law on pre-judgment interest would not be changed. The court could only award pre-judgment interest by following ORC §3123.17.

The reason for the original change in current law is not known. H.B. 657 was introduced and passed in under 45 days, primarily to enact federal requirements for standardized health insurance notices. It is possible that this language was created in an overreaction to the language in ORC §3123.18. The language of ORC §3123.18 was once part of the former ORC §3113.21. Former section ORC §3113.21 was the original wage withholding statute, but included many other provisions in a statute that occupied several pages of the Revised Code. This language was merely copied from federal law. See, for example, 45 C.F.R. Sec. 302.70(a)(9), which requires that states have:

(9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (a)(2) of this section, is (on and after the date it is due):

(i) A judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced;

(ii) Entitled as a judgment to full faith and credit in such State and in any other State; and

(iii) Not subject to retroactive modification by such State or by any other State, except as provided in Sec. 303.106(b).

ORC §3123.18 demonstrates the dangers of blindly copying ambiguous language from federal statutes and regulations, since in Ohio a court order is different from a money judgment. A court order for payment of an installment payment of child support can be enforced (through contempt, and the various collection methods such as wage withholding), and is entitled to full faith and credit within this state, and, through the Uniform Interstate Family Support Act, enforcement in other states. Nor can that installment amount be retroactively modified under Ohio law.

A money judgment, on the other hand, is a final order that can be appealed. A certificate of that judgment can be filed with the clerk of courts and acts as a lien on property held by that judgment debtor in the county. In foreclosure proceedings, the filing of that judgment lien grants the judgment creditor priority over other creditors.

No court has interpreted the language in ORC §3123.18 (or the predecessor sub-section) to allow the automatic conversion of an unpaid child support installment into a "money judgment," thereby allowing the imposition of a lien on real and personal property for the unpaid amount. Such an interpretation could have a damaging impact on commercial lending in this state. However, perhaps the Ohio Department of Job and Family Services staff (who drafted H.B. 657) mistakenly thought that the language of ORC §3123.18 would require automatic imposition of interest on unpaid installments of child support installments, thereby creating massive programming problems for the SETS system. Possibly ORC §3123.171 was inserted in order to prevent this possibility, with the unintended consequence of denying interest to legitimate judgments for unpaid child support.

The text of the proposed new ORC §3123.171 follows, along with the text of existing ORC §§3123.18, and 3123.17. Changes are not proposed to either ORC §§3123.17 or 3123.18. A change to the language of ORC §3123.18 may well have some merit, but absence any evidence that the courts are following the language of the statute literally, the Committee is not recommending change to that statute at this time.

Proposed Amended Statute:
§ 3123.171 Notwithstanding section 1343.03 of the Revised Code, interest may be charged on the amount of support arrearages owed pursuant to a default under a child support order only as provided by section 3123.17 of the Revised Code. When a court reduces a child support arrearage to judgment, interest shall accrue on that judgment at the rate specified in Section 13430.3 of the Revised Code from the date the judgment is journalized. A court may asses pre-judgment interest on a child support arrearage only in accordance with Section 3123.17 of the Revised Code.

Existing Statutes (No Changes Proposed)
§ 3123.17 (A) When a court issues or modifies a court support order, the court shall determine the following:

(1) Whether the obligor is in default under a prior court support order or the court support order being modified;

(2) If the obligor is in default, the date the court support order went into default and the amount of support arrearages owed pursuant to the default.

If the court determines the obligor is in default under a support order, the court shall issue a new order requiring the obligor to pay support. If the court determines the default was willful, the court may assess interest on the arrearage amount from the date the court specifies as the date of default to the date the court issues the new order requiring the payment of support and, if interest is assessed, shall compute the interest at the rate specified in section 1343.03 of the Revised Code. The court shall specify in the support order the amount of interest the court assessed against the obligor, if any, and incorporate the amount of interest into the new monthly payment plan.

(B) When a court issues or modifies a court support order, the court may include in the support order a statement ordering either party to pay the costs of the action, including, but not limited to, attorney’s fees, fees for genetic tests in contested actions under sections 3111.01 to 3111.18 of the Revised Code, and court costs.

§ 3123.18 If a court or child support enforcement agency made a final and enforceable determination under sections 3123.02 to 3123.071 of the Revised Code as those sections existed prior to the effective date of this section or makes a final and enforceable determination under sections 3123.01 to 3123.07 of the Revised Code that an obligor is in default under a support order, each payment or installment that was due and unpaid under the support order that is the basis for the default determination plus any arrearage amounts that accrue after the default determination and during the period of default shall be a final judgment which has the full force, effects, and attributes of a judgment entered by a court of this state for which execution may issue under Title XXIII of the Revised Code.

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