Mazzuckelli v. Mazzuckelli , 106 Ohio App. 3d 554 ( 1995 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The pivotal issue raised in this appeal, in the third of four assignments of error given to us for review, is whether a child-support obligation created in 1979 under the terms of a separation agreement incorporated in a dissolution decree was properly held to remain in effect beyond a child's eighteenth birthday for as long as the child continued to be a full-time student at a recognized and accredited high school, even though the separation agreement itself expressly provided for the termination of the obligation when the child reached the age of eighteen. Although no extension of the support obligation would be defensible in law if this case were governed by the Ohio Supreme Court's decision in In re Dissolution of Lazor (1991),59 Ohio St.3d 201, 572 N.E.2d 66, we are convinced that the controlling law is instead to be found in the 1992 amendments of R.C. 3103.03, which, when given their appropriate effect, specifically mandate such an extension for all children who remain full-time students at a qualified high school. We accordingly affirm.

On June 12, 1979, a decree of dissolution was journalized in the domestic relations division of the court of common pleas to terminate the marriage of appellant Lawrence Mazzuckelli and appellee Susan Mazzuckelli. A separation agreement executed by the parties was incorporated into the decree. The separation agreement provided that the mother was to have custody of the parties' three minor children, and that the father was to pay child support in the amount of $200 per month for each child until each child attained "the age of eighteen (18) years." One of the parties' children had her eighteenth birthday on December 8, 1992. At that time, she was attending high school on a full-time basis.

Prior to the child's eighteenth birthday, on October 9, 1992, the father filed a motion to terminate his child-support obligation as of December 8, 1992. Approximately one week before the child's eighteenth birthday, on December 1, 1992, the Hamilton County Child Support Enforcement Agency ("HCCSEA") filed a motion to "alter and amend" the decree of dissolution for the purpose of extending the support obligation until the child graduated from high school. The evidence presented to a referee showed that the child was, in fact, continuing to attend high school, and that she was scheduled to graduate on June 4, 1993.

On January 11, 1993, the referee filed a report recommending that the father's motion to terminate child support as of December 8, 1992, be overruled. The referee further recommended that HCCSEA's motion be granted, and that the decree of dissolution be amended to provide for a continuing support obligation until the child graduated from high school. The father filed objections to the referee's report which the trial court overruled on February 27, 1993, and this timely appeal followed.

In In re Dissolution of Lazor, supra, 59 Ohio St.3d 201,572 N.E.2d 66, a majority of the Ohio Supreme Court recognized the rights of parents, as part of the dissolution of their marriage, to adjust child-support obligations between themselves pursuant to the terms of a separation agreement, without diminishing a child's independent right to enforce the legal duty of support directly against either parent. Approximately one year later, the General Assembly amended R.C. 3103.03(B) to provide that "the parental duty to support children, including the duty of a parent to pay support pursuant to a child support order, shall continue beyond the age of majority as long as the child continuously attends on a full-time basis any recognized and accredited high school." The effect of the statutory amendment demonstrates the legislature's intent to override the majority's decision in Lazor and to provide for the operation of the statute as outlined in Justice Douglas's dissent. Amended R.C.3103.03(B) should be read to incorporate the broad definition of "child support order" contained in R.C. 3113.215(A)(6) ("an order for the payment of child support"). When the amendment is viewed alongside other pertinent provisions of the Revised Code, it is now clear, as Justice Douglas envisioned, that the duty to pay court-ordered support is mandated beyond the age of majority under specified circumstances, and that a child support enforcement agency has a right to see that the duty is appropriately enforced.

The only question that remains is whether application of amended R.C. 3103.03(B) to this case, where the support order arose pursuant to a separation agreement that had been in effect for some thirteen years before the statute was amended, constitutes an inappropriate retrospective application of the statute. For the reasons that follow, we hold that it does not.

Under the case law in Ohio, the analysis that pertains to issues of retrospective application of statutes has recently evolved to require a threshold inquiry into whether the General Assembly has specified that a given statute is to be given retroactive effect. In the absence of such a specification, retroactivity is, quite simply, foreclosed, and it is only when the legislature has given its imprimatur to retroactive application that a second issue, one of constitutional dimension, must be addressed: whether the statute in question bears upon substantive rights or is more appropriately construed to be procedural in nature. Warren Cty. Bd. of Commrs. v.Lebanon (1989), 43 Ohio St.3d 188, 540 N.E.2d 242; Van Fossen v.Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489;Bien v. Cincinnati (Sept. 29, 1993), Hamilton App. No. C-920351, unreported, 1993 WL 381206.

In our view, resort to the newly evolved standards on retroactivity is unnecessary in the instant case because we are persuaded that to apply amended R.C. 3103.03(B) in this context does not give the statute any meaningful retrospective effect. Under the definition we deem appropriate, a statute can be construed as impermissibly retrospective in application only if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed * * *." Perk v. Euclid (1969),17 Ohio St.2d 4, 8, 46 O.O.2d 60, 62-63, 244 N.E.2d 475, 477 (quoting Justice Story in Society for the Propagation of Gospelv. Wheeler [1814], 2 Gall. [U.S.C.C.] 105, 139).

Two aspects of the present case are significant to our conclusion that we are not confronted with an instance of impermissible retrospective application. First, at the time the court below was asked to extend the father's support obligation, that obligation had yet to be fully carried out under existing law, and its dimensions as well had yet to be fully determined. Second, as we note infra, at the time of the requested extension, the trial court had yet to relinquish the continuing jurisdiction conferred upon it by R.C. 3105.65 to modify, among other things, any provisions concerning child support. Under these circumstances, it cannot be said, within the accepted sense of retroactivity, that application of amended R.C. 3103.03(B) "create[d] a new obligation, impose[d] a new duty, or attache[d] a new disability" on the father "in respect to transactions or considerations already passed." We hold, therefore, that the court below did not err when it ruled that the support order arising from the separation agreement incorporated into the decree of dissolution should extend beyond Deborah Mazzuckelli's eighteenth birthday. The third assignment of error is, accordingly, not well taken.

The first and second assignments of error essentially allege that the trial court had no jurisdiction to modify the separation agreement which had been incorporated into the decree of dissolution as to child support. The assignments of error are overruled because the trial court had continuing jurisdiction to modify the separation agreement incorporated into the decree of dissolution as to matters of child support pursuant to R.C.3105.65, Dudziak v. Dudziak (1992), 81 Ohio App.3d 361,611 N.E.2d 337; Alban v. Alban (1981), 1 Ohio App.3d 146, 1 OBR 454,439 N.E.2d 963; In re Leece (July 24, 1992), Miami App. No. 91-CA-52, unreported, 1992 WL 172159, and because the court separately had jurisdiction to give effect to the statutory command of R.C. 3103.03(B).

The fourth assignment of error, which alleges that the trial court denied the father's rights to due process and equal protection, is overruled both to the extent that it challenges the trial court's authority to extend his child-support obligation under the decree of dissolution past his daughter's eighteenth birthday, and to the extent that it alleges that the father was denied procedural due process and equal protection of the law.

The judgment of the trial court is affirmed.

Judgment affirmed.

HILDEBRANDT, P.J., and GORMAN, J., concur.

DOAN, J., dissents.