[Cite as Culp v. Rogstad , 2011-Ohio-4274.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA CULP JUDGES: Hon. William B. Hoffman, P.J. Petitioner-Appellee Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vs- Case No. 11-CA-16 KEVIN R. ROGSTAD
Respondent-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Division of Domestic Relations Case No. 2009 DR 0253
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2011
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
DIANE D. EINSTEIN RANDY S. KUREK Einstein & Poling, LLC 130 East Chestnut Street, Suite 402 5940 Wilcox Place, Suite F Columbus, Ohio 43215 Dublin, Ohio 43016
NANCY A. UTZ c/o Licking County Child Support Enforcement Agency 65 East Main Street P.O. Box 338 Newark, Ohio 43055 Licking County, Case No. 11-CA-16 2
Hoffman, P.J.
{¶1} Respondent-appellant Kevin Rogstad appeals the January 5, 2011
Judgment Entry entered by the Licking County Court of Common Pleas, Domestic
Relations Division, which ordered a Texas child support order be registered in the State
of Ohio for enforcement. Petitioner-appellee is Donna Culp.
STATEMENT OF THE CASE AND FACTS
{¶2} On February 25, 2009, Appellee filed a Notice of Registration pursuant to
R.C. 3115.39 and 3115.42 in the Licking County Court of Common Pleas, Domestic
Relations Division, seeking to register a Final Decree of Divorce issued in Case No.
5642-90 by the 18th Judicial District of Johnson County, Texas. Appellant filed a written
request for a hearing.
{¶3} The matter came on for hearing before the magistrate on July 29, 2009.
The following evidence was adduced at the hearing.
{¶4} The parties were married on October 11, 1986. One child was born as
issue of said union. Appellee had a child from a prior relationship whom Appellant
adopted during the course of the marriage. Appellee was on active duty in the U.S. Air
Force, and received an assignment to Germany. The parties and the children moved to
Germany in June, 1989. Within days of the parties’ arrival in Germany, Appellant
advised Appellee he wished to return to the United States as soon as possible.
Appellant stayed in Germany until March or April, 1990. While there, Appellant worked
for the Red Cross. Appellant left Germany, promising he would not be a “deadbeat
dad.” Since returning to the United States in 1990, Appellant has had no contact with
the children. Licking County, Case No. 11-CA-16 3
{¶5} Appellant and Appellee were divorced on February 6, 1991, in the District
Court, Johnson County, Texas, 18th Judicial District. Appellee was designated the sole
managing conservator for the children. Appellant was designated as the possessery
conservator. Appellant was ordered to pay child support in the amount of $104.71/week
directly to Appellee. The Divorce Decree mandated if either party moved from the
address used in court records at the time of the hearing, he/she must inform the Texas
court of his/her new address and phone number 30 days prior to the move. Appellee did
not inform the Texas court of her location from the time of the divorce hearing until
2007. Appellant provided the Texas court with his father’s address, his brother’s
address, and a Connecticut address.
{¶6} Appellee testified she made numerous attempts to find Appellant, but to
no avail. Appellee also contacted the Texas court to inquire as to why she was not
receiving child support. She was informed the court had not received any monies from
Appellant or his employer. While living in the states of North Carolina and Virginia,
Appellee sought help from local child support enforcement agencies. These agencies
were unable to assist her as she did not have a current address for Appellant. Paternal
grandparents visited with the children when Appellee and the children visited maternal
grandparents. Paternal grandparents also traveled to Virginia and visited the children.
Appellant, on the other hand, stated he attempted to find Appellee in 1992, or 1993, and
hired an attorney to assist him in his search.
{¶7} Via Decision filed May 3, 2010, the magistrate found neither the “clean
hands doctrine” nor the defense of laches applies. The magistrate recommended the
foreign order from the State of Texas be registered. Appellant filed timely objections to Licking County, Case No. 11-CA-16 4
the magistrate’s decision. Appellee filed a memorandum contra. The parties filed
supplemental pleadings after the preparation of the hearing transcript. Via Opinion filed
November 17, 2010, the trial court overruled Appellant’s objections, finding the
magistrate had properly determined the factual issues and appropriately applied the
law. The trial court issued a judgment entry on January 5, 2011, ordering the child
support order from the State of Texas be registered to the State of Ohio, for
enforcement.
{¶8} It is from this judgment entry, Appellant appeals, raising the following
assignments of error:
{¶9} “I. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND WAS CONTRARY TO LAW, AS IT RELATED TO
THE DEFENSE OF LACHES.
{¶10} “II. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND WAS CONTRARY TO LAW, IN THAT
PETITIONER-APPELLEE HAD ‘UNCLEAN HANDS’, WHICH BARRED HER CLAIM
FOR RELIEF FROM A COURT OF EQUITY.”
I
{¶11} In his first assignment of error, Appellant contends the trial court’s finding
the doctrine of laches did not apply was against the manifest weight of the evidence.
We disagree.
{¶12} “Laches is an omission to assert a right for an unreasonable and
unexplained length of time, under circumstances prejudicial to the adverse party.”
Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR 134, 472 N.E.2d 328, quoting Licking County, Case No. 11-CA-16 5
Smith v. Smith (1957), 107 Ohio App. 440, 443, 8 O.O.2d 424, 146 N.E.2d 454. Delay
alone, in asserting a right does not constitute laches. Connin, supra. Laches is
predominantly a question of fact to be resolved according to the circumstances of each
individual case and, as such, is within the sound discretion of the trial court. Bitonte v.
Tiffin Sav. Bank (1989), 65 Ohio App.3d 734, 739, 585 N.E.2d 460. Therefore, we must
examine whether the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of judgment. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.”
{¶13} Based on the procedural history of this case, it does not appear to us the
trial court's rejection of the laches defense was unreasonable, arbitrary, or
unconscionable. Laches involves two elements: (1) an “omission to assert a right for an
unreasonable and unexplained length of time;” (2) “under circumstances prejudicial to
the adverse party.” Connin, supra at 35. Under the second element “it must be shown
that the person for whose benefit the doctrine will operate has been materially
prejudiced by the delay of the person asserting his claim.” Id. at 35-36.
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[Cite as Culp v. Rogstad , 2011-Ohio-4274.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA CULP JUDGES: Hon. William B. Hoffman, P.J. Petitioner-Appellee Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vs- Case No. 11-CA-16 KEVIN R. ROGSTAD
Respondent-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Division of Domestic Relations Case No. 2009 DR 0253
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2011
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
DIANE D. EINSTEIN RANDY S. KUREK Einstein & Poling, LLC 130 East Chestnut Street, Suite 402 5940 Wilcox Place, Suite F Columbus, Ohio 43215 Dublin, Ohio 43016
NANCY A. UTZ c/o Licking County Child Support Enforcement Agency 65 East Main Street P.O. Box 338 Newark, Ohio 43055 Licking County, Case No. 11-CA-16 2
Hoffman, P.J.
{¶1} Respondent-appellant Kevin Rogstad appeals the January 5, 2011
Judgment Entry entered by the Licking County Court of Common Pleas, Domestic
Relations Division, which ordered a Texas child support order be registered in the State
of Ohio for enforcement. Petitioner-appellee is Donna Culp.
STATEMENT OF THE CASE AND FACTS
{¶2} On February 25, 2009, Appellee filed a Notice of Registration pursuant to
R.C. 3115.39 and 3115.42 in the Licking County Court of Common Pleas, Domestic
Relations Division, seeking to register a Final Decree of Divorce issued in Case No.
5642-90 by the 18th Judicial District of Johnson County, Texas. Appellant filed a written
request for a hearing.
{¶3} The matter came on for hearing before the magistrate on July 29, 2009.
The following evidence was adduced at the hearing.
{¶4} The parties were married on October 11, 1986. One child was born as
issue of said union. Appellee had a child from a prior relationship whom Appellant
adopted during the course of the marriage. Appellee was on active duty in the U.S. Air
Force, and received an assignment to Germany. The parties and the children moved to
Germany in June, 1989. Within days of the parties’ arrival in Germany, Appellant
advised Appellee he wished to return to the United States as soon as possible.
Appellant stayed in Germany until March or April, 1990. While there, Appellant worked
for the Red Cross. Appellant left Germany, promising he would not be a “deadbeat
dad.” Since returning to the United States in 1990, Appellant has had no contact with
the children. Licking County, Case No. 11-CA-16 3
{¶5} Appellant and Appellee were divorced on February 6, 1991, in the District
Court, Johnson County, Texas, 18th Judicial District. Appellee was designated the sole
managing conservator for the children. Appellant was designated as the possessery
conservator. Appellant was ordered to pay child support in the amount of $104.71/week
directly to Appellee. The Divorce Decree mandated if either party moved from the
address used in court records at the time of the hearing, he/she must inform the Texas
court of his/her new address and phone number 30 days prior to the move. Appellee did
not inform the Texas court of her location from the time of the divorce hearing until
2007. Appellant provided the Texas court with his father’s address, his brother’s
address, and a Connecticut address.
{¶6} Appellee testified she made numerous attempts to find Appellant, but to
no avail. Appellee also contacted the Texas court to inquire as to why she was not
receiving child support. She was informed the court had not received any monies from
Appellant or his employer. While living in the states of North Carolina and Virginia,
Appellee sought help from local child support enforcement agencies. These agencies
were unable to assist her as she did not have a current address for Appellant. Paternal
grandparents visited with the children when Appellee and the children visited maternal
grandparents. Paternal grandparents also traveled to Virginia and visited the children.
Appellant, on the other hand, stated he attempted to find Appellee in 1992, or 1993, and
hired an attorney to assist him in his search.
{¶7} Via Decision filed May 3, 2010, the magistrate found neither the “clean
hands doctrine” nor the defense of laches applies. The magistrate recommended the
foreign order from the State of Texas be registered. Appellant filed timely objections to Licking County, Case No. 11-CA-16 4
the magistrate’s decision. Appellee filed a memorandum contra. The parties filed
supplemental pleadings after the preparation of the hearing transcript. Via Opinion filed
November 17, 2010, the trial court overruled Appellant’s objections, finding the
magistrate had properly determined the factual issues and appropriately applied the
law. The trial court issued a judgment entry on January 5, 2011, ordering the child
support order from the State of Texas be registered to the State of Ohio, for
enforcement.
{¶8} It is from this judgment entry, Appellant appeals, raising the following
assignments of error:
{¶9} “I. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND WAS CONTRARY TO LAW, AS IT RELATED TO
THE DEFENSE OF LACHES.
{¶10} “II. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND WAS CONTRARY TO LAW, IN THAT
PETITIONER-APPELLEE HAD ‘UNCLEAN HANDS’, WHICH BARRED HER CLAIM
FOR RELIEF FROM A COURT OF EQUITY.”
I
{¶11} In his first assignment of error, Appellant contends the trial court’s finding
the doctrine of laches did not apply was against the manifest weight of the evidence.
We disagree.
{¶12} “Laches is an omission to assert a right for an unreasonable and
unexplained length of time, under circumstances prejudicial to the adverse party.”
Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR 134, 472 N.E.2d 328, quoting Licking County, Case No. 11-CA-16 5
Smith v. Smith (1957), 107 Ohio App. 440, 443, 8 O.O.2d 424, 146 N.E.2d 454. Delay
alone, in asserting a right does not constitute laches. Connin, supra. Laches is
predominantly a question of fact to be resolved according to the circumstances of each
individual case and, as such, is within the sound discretion of the trial court. Bitonte v.
Tiffin Sav. Bank (1989), 65 Ohio App.3d 734, 739, 585 N.E.2d 460. Therefore, we must
examine whether the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of judgment. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.”
{¶13} Based on the procedural history of this case, it does not appear to us the
trial court's rejection of the laches defense was unreasonable, arbitrary, or
unconscionable. Laches involves two elements: (1) an “omission to assert a right for an
unreasonable and unexplained length of time;” (2) “under circumstances prejudicial to
the adverse party.” Connin, supra at 35. Under the second element “it must be shown
that the person for whose benefit the doctrine will operate has been materially
prejudiced by the delay of the person asserting his claim.” Id. at 35-36. (Emphasis
added).
{¶14} We find the trial court did not abuse its discretion in finding the doctrine of
laches did not apply. The evidence established Appellee made numerous attempts
throughout the years to find Appellant. She sought assistance from various state child
support enforcement agencies. However, without Appellant’s address, those agencies
were unable to assist her. Further, Appellant failed to show he was materially prejudiced
by the delay. Appellant’s claim he was prejudiced as he was prevented from developing Licking County, Case No. 11-CA-16 6
a relationship with the children is unpersuasive. Appellant has not presented any
evidence he attempted to enforce visitation with the children.
{¶15} Appellant’s first assignment of error is overruled.
II
{¶16} In his second assignment of error, Appellant maintains the trial court’s
finding the doctrine of unclean hands did not bar Appellee’s claim was against the
manifest weight. Appellant submits Appellee had “unclean hands” as she failed to
provide the Texas court with her current addresses for a period of 16 years; therefore,
she should be barred from asserting a claim for equitable relief.
{¶17} “[I]t is fundamental that he who seeks equity must do equity, and that he
must come into court with clean hands.” Christman v. Christman (1960), 171 Ohio St.
152, 154, 168 N.E.2d 153. This maxim “requires only that the plaintiff must not be guilty
of reprehensible conduct with respect to the subject-matter of his suit.” Kinner v. Lake
Shore & Michigan S. Ry. Co. (1904), 69 Ohio St. 339, 69 N.E. 614, paragraph one of
the syllabus. “Thus, for the doctrine of unclean hands to apply, the offending conduct
must constitute reprehensible, grossly inequitable, or unconscionable conduct, rather
than mere negligence, ignorance, or inappropriateness.” Wiley v. Wiley, Marion App.
No. 9-06-34, 2007-Ohio-6423, ¶ 15. Furthermore, “the unclean hands doctrine should
not be imposed where a party has legal remedies available to address an opposing
party's asserted misconduct.” Safranek v. Safranek, 8th Dist. No. 80413, 2002-Ohio-
5066, ¶ 20, citing Miller v. Miller (1993), 92 Ohio App.3d 340, 348-349, 635 N.E.2d 384.
In order for the doctrine to bar a party's claims, the party must be found to be at fault in Licking County, Case No. 11-CA-16 7
relation to the other party and in relation to the transaction upon which the claims are
based.
{¶18} Although we agree with Appellant, Appellee violated her duties under the
Texas divorce decree by failing to advise the Texas court of her address changes, we,
nonetheless, find such failure did not have any relation to Appellant’s duty to pay the
child support order to Appellee.
{¶19} Appellant’s second assignment of error is overruled.
{¶20} The judgment of the Licking County Court of Common Pleas, Domestic
Relations Division, is affirmed. Costs to Appellant.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Licking County, Case No. 11-CA-16 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA CULP : : Petitioner-Appellee : : -vs- : JUDGMENT ENTRY : KEVIN R. ROGSTAD : : Respondent-Appellant : Case No. 11-CA-16
For the reasons stated in our accompanying Opinion, the judgment of the Licking
County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS