Lewandowski v. Lewandowski , 64 O.B.A.J. 3299 ( 1993 )

OPINION

BAILEY, Judge:

Debra M. Lewandowski (Mother), by and through the Department of Human Services (DHS), seeks review of an order of the Trial Court denying a motion to reconsider in DHS’s action against Lawrence Rodger Lewandowski (Father) to recover child support arrearage. In this appeal, DHS contends the Trial Court erred in holding recovery of child support arrearage accruing more than five years prior to the filing of the action barred by the statute of limitations.

Mother obtained a divorce from Father on November 3, 1980 in Michigan. The decree ordered Father to pay $53.77 per week per child, effective instanter. On November 19, 1980, the decree was modified to reflect child support in the amount of $20.50 per week per child. From November of 1980 through July 1985, Mother received public assistance for support of the parties’ children.

In 1989, Mother properly registered the Michigan judgment in Oklahoma. On January 25, 1990, DHS filed a notice of redirection of support payments, requesting any and all child support payments be made to DHS. Contemporaneously with filing the notice of redirection of child support payments, Mother, by and through DHS, filed an application for contempt citation alleging Father’s child support arrear-age in the amount of $40,185.97 from the date of the divorce in 1980 through December 31, 1989.

After hearing, the Trial Court granted the redirection of payments for “so long as the children receive child support services” from DHS. The Trial Court further found, inter alia, the five-year statute of limitations ¹ barred judgment for any child support arrearage accruing prior to December 1985, computed the post-December 1985 ar-rearage accordingly (with deduction for a tax intercept payment made), and granted judgment against Father in the amount of $1,987.39.²

On behalf of Mother, DHS filed a motion to reconsider, alleging Mother had received public assistance from November 1980 through July 1985 which became a debt due and owing the state and, as such, not barred by the statute of limitations. The motion to reconsider prayed for judgment in the amount of $10,049.10, specifically reflecting the unpaid child support accruing from November 1980 through July 1985. The Trial Court, while acknowledging it had “changed its position on the interpretation of the law applicable to child support,” nevertheless denied the motion.

DHS now appeals on Mother’s behalf. The sole issue on appeal is whether the Trial Court correctly applied the statute of limitations to bar a judgment for the child support arrearage accruing prior to December 1985.

The Court of Appeals has previously ruled on this precise issue.³ In that case, the mother received public assistance periodically from 1973 to 1980. In 1988, DHS filed a petition seeking reimbursement from the father for monies paid on behalf of the parties’ minor child pursuant to 56 O.S.1991 § 237(C)(1),⁴ requiring recipients of public assistance to assign support rights to the state, and 56 O.S.1991 § 238,⁵ defining such assistance as a debt due and owing the state by the parents of such child.⁶ The lower court granted father’s motion to dismiss the petition as time-barred. We reversed, holding the statute of limitations is not a bar against the state when acting in its sovereign capacity to enforce a public right.⁷

In the present case, DHS, on behalf of Mother and as a participant in the federally funded program to aid families with dependent children, brought suit to recover from Father payments made to Mother for the benefit of the parties’ minor child. We again hold that 56 O.S. § 238, requiring the state to obtain reimbursement for payment of public assistance for the benefit of a minor child, protects the public at large and as such is enforcement of a public right against which the statute of limitations constitutes no bar. We therefore hold the Trial Court erred in ruling otherwise.

The judgment of the Trial Court is REVERSED, and the cause REMANDED for further proceedings not inconsistent herewith.

GARRETT, J., concurs. HUNTER, P.J., dissents with separate opinion.

1 . 12 O.S.1991 § 95 (Fifth).

2 . The Trial Court further found Mother not entitled to child support for one of the children who had not been in Mother’s physical custody since December 1985, and vacated the child support order regarding the second child who began residing with Father in February 1990. Although this ruling comes perilously close to an impermissible retroactive modification of the original child support order, this issue has not been preserved for our review. See, also, McNeal v. Robinson, 628 P.2d 358 (Okl.1981) (allowing payor parent credit against child support arrearage under certain circumstances when the payor parent has physical custody of the child).

3 . State of Oklahoma ex rel. Department of Human Services o/b/o Edith Marie Jones v. Billy Ray Love, Case No. 73,230 (Okl.App. Div. IV, July 9, 1991) (unpub. op. by Bacon, V.C.J., Reif, J. and Stubblefield, J., concuiring). Contra, Birdtail v. Birdtail, 838 P.2d 522 (Okl.App.1992).

4 . Then 56 O.S.Supp.1990 § 237.

5 . Then 56 O.S.Supp.1990 § 238.

6 . See, also, State ex rel. Department of Human Services v. Hartless, 734 P.2d 330 (Okl.App.1987) (Where mother received DHS payments for benefit of children, debt was created which was owed by other parent to the state).

7 . State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okl.1983).