Hoffmann v. Hoffmann ( 1972 )

This is an appeal from an order of the Court of Common Pleas of Hamilton County, Ohio, Division of Domestic Relations.

On November 15, 1956, a decree of divorce was awarded plaintiff-appellant, granting her, among other things, custody of the two minor children of the parties and ordering defendant-appellee to pay five hundred dollars per month "as alimony and support for the said minor children * * * out of which * * * [plaintiff] is to be responsible for the full financial support of said children, except * * * * as they may be in the temporary custody of the defendant * * *." Further, the decree of divorce provided that the payments were to continue "until the youngest of the * * * children or the survivor thereof shall have attained the age of twenty-one (21) years."

On September 13, 1961, the custody order was modified upon motion and the permanent custody of the child, John, was awarded to defendant, and defendant was ordered to pay two hundred fifty dollars per month to plaintiff as support for the other child, Lewis, whose custody she retained, the order stating "no part thereof to be construed as alimony."

On December 24, 1970, plaintiff filed two motions; one seeking a lump-sum judgment for alleged arrears in support payments for both children, and the other seeking a citation of defendant for contempt of court.

On February 23, 1971, defendant moved to terminate the support orders for the children as of January 26, 1967.

The court below, through a referee, found that both children had attained the age of twenty-one years, that John had been in the custody of defendant as ordered, that no support payments for John were or had been due and that no liability for his support attached to defendant. Further, that court found that Lewis had attained the age of eighteen years on January 26, 1967, and was "emancipated on February 1, 1968, at which time he was no longer enrolled in school and was employed full time and self-supporting."

The first assignment of error asserts that the trial court erred in altering a previous support order as to past due and delinquent child support installments after the date the last installment became due.

To support such assertion, appellant cites, inter alia, Smith v. Smith, 168 Ohio St. 447, paragraph one of the syllabus of which is:

"The amount of past due and delinquent installments remaining due and owing on an installment child-support order or judgment is fixed and unalterable on the date the last installment payment becomes due and owing; and at that time the payee of the installment support order or judgment has an absolute right to have all past due and delinquent installment payments reduced to a ``lump-sum judgment,' on which excution may be lawfully levied. (Corbett v. Corbett, 123 Ohio St. 76, and McPherson v. McPherson,153 Ohio St. 82, followed.)"

Unquestionably, Smith, supra, is controlling authority if the installments on the child support order were, in fact, due and owing to appellant. In addressing ourselves to this question, it must always be kept in mind that we are dealing not with an allowance of alimony to a wife alone but with an award for the support of a minor child. As Judge Zimmerman remarked in his dissent in McPherson v. McPherson, 153 Ohio St. 82, at page 92: "A marked distinction exists between the two."

It is significant to us that the majority opinion in Smith,supra, contains these observations, at pages 456 and 457:

"* * * Defendant was instrumental in bringing into the world the child for whom the benefit of the support money was intended, and he assumed, in addition to the natural duties of a parent, a statutory duty to support the child untilemancipation or majority. The weekly support order merely put a price tag on the statutory duty already existent. The defendant knew of the existence of his obligation of support before the divorce decree, and the extent of such obligation was fixed by the installment support order included in the judgment of divorce. The mere fact that he failed to meet such obligation does not mean that he was excused therefrom; it simply means that someone assumed his duty of support, for,in the absence of evidence to the contrary, the court will presume that the child was clothed, fed and generally accorded the necessities of life, the payment for which the weekly support money was intended." (Emphasis ours.)

Therefore, it was proper to permit the appellee to adduce evidence to rebut the presumption that another was forced to assume his natural duties as a father. See Speer v. Speer, 36 Ohio Op. 450, at page 451. If, in fact, appellee did provide the support or his son, Lewis, had become emancipated, then it is obvious that to order appellee to pay in accordance with the order of court would be to compel him to pay an obligation not his due. Under such circumstance, appellant would be given a windfall because she had not provided the support or assumed the duties of appellee. This would be, in our estimation, unjust enrichment.

Our examination of the record leads us to conclude that the finding that Lewis was emancipated on February 1, 1968, and was self-supporting is in harmony with the manifest weight of the evidence. Consequently, the conclusion that, despite the unmodified order of court, no further liability for support of Lewis attached thereafter is correct in law. The first assignment of error, then, is not well taken.

The second assignment of error is, essentially, reiterative of the first. Therefore, it is found to be not well taken for the same reasons. Further, we observe that it would be a perversion of the intent of R. C. 3103.03 to interpret it to require a husband to support his minor child after that child's emancipation simply because no prompt effort was made to modify an order of court upon emancipation. That would be blind and slavish devotion to form requiring an absolute rejection of material fact. We hold it to be the law that emancipation of a child competent to support itself discharges a parent from an obligation for its support. SeeTownsen v. Townsen, 1 Ohio Op. 2d 49.

The third assignment of error raises, in addition to the issues involved in assignments one and two, the accuracy of the computation of the award to appellant. We find this assignment not to be well taken for the reasons already given and because the record does not support it. We believe that both law and reason support our conclusion that when a factual situation, in contemplation of which an order was made, ceases to exist, the legal obligation terminates at the same time and not when it is cancelled of record. See, generally, Wolfe v. Wolfe, 55 Ohio Op. 465.

The judgment of the Court of Common Pleas of Hamilton County, Ohio, Division of Domestic Relations, is affirmed.

Judgment affirmed.

YOUNG, J., concurs.