Dorsett v. Wheeler

656 N.E.2d 698, 101 Ohio App. 3d 716, 1995 Ohio App. LEXIS 938

• Court: Ohio Court of Appeals
• Decided: March 16, 1995
• Docket: No. 11-94-3.
• Status: Published

Opinions

Thomas F. Bryant, Presiding Judge.

This is an appeal by plaintiff-appellants Kelly Dorsett et al., from a judgment by the Court of Common Pleas of Paulding County, Juvenile Division.

Dorsett and defendant-appellee David Wheeler were married on July 7, 1984 and their marriage was dissolved on November 10, 1988. In 1993, Dorsett apparently received financial assistance for her and her children from the Ohio Department of Human Resources (“ODHR”).

On May 20, 1993, an attorney for the Child Support Enforcement Agency, Paulding County (“CSEA”) filed a complaint for paternity naming Dorsett and two of her children, twins Joshua and Johnathon Scott, as plaintiffs and Wheeler as defendant.

On February 10, 1994, at hearing, Wheeler admitted he was the natural father of Joshua and Johnathon, born April 7, 1984. On March 1, 1994, the trial court entered its judgment finding Wheeler the natural father of Joshua and Johnathon, ordering visitation rights for Wheeler, ordering Wheeler to pay child support, ordering Dorsett to seek employment and ordering Wheeler to reimburse ODHR $1,397.49, which the court determined was the amount Dorsett received in governmental financial assistance.

It is from this judgment that Dorsett, Johnathon and Joshua now appeal and submit three assignments of error which are:

. “I. The trial court erred in awarding the Department of Human Services retroactive child support reimbursement; and then refusing to award retroactive child support reimbursement to appellant is an abuse of discretion, against the manifest weight of the evidence, and is error as a matter of law.

“II. The decision of the trial court in ordering appellant Kelly Dorsett to seek employment is an abuse of discretion and is error as a matter of law.

“III. The trial court erred as a matter of law in ordering the name change for appellants Johnathon Scott and Joshua Scott.”

In Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 223, 18 OBR 281, 283, 284, 480 N.E.2d 802, 805, the Ohio Supreme Court stated:

“Implementation of the plain-error doctrine is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. The plain-error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant. Although the plain-error doctrine is a principle applied almost exclusively in criminal cases, this court has stated that the doctrine may also be applied in civil causes, even if the party seeking invocation of the doctrine failed to object * * * if the error complained of ‘would have a material adverse affect on the character and public confidence in judicial proceedings.’ * * *” (Citations omitted.)

We have determined that the plain-error doctrine must be invoked in the case at bar in order to prevent a manifest miscarriage of justice. Therefore, for the reasons set forth below, we reverse the trial court’s judgment, except for that portion finding Wheeler to be the natural father of Joshua and Johnathon, and remand this cause for further proceedings.

We believe the principal error committed here was Dorsett’s lack of legal representation, or, in the alternative, her knowing voluntary waiver of such representation. The record shows that the attorney for CSEA filed the complaint against Wheeler and named Dorsett and the twins as plaintiffs. Hence, the CSEA attorney filed the complaint as if he were Dorsett’s attorney but the record is clear that he did not, in fact, represent Dorsett and her interests during this litigation. Notwithstanding the dissent’s assertion that Dorsett was adequately represented by the attorney for CSEA, the record clearly shows, and the trial court expressly found in its judgment entry, that Dorsett appeared at hearing without counsel. We believe the trial court, if not CSEA’s attorney, had an affirmative duty to make direct inquiries into the status of Dorsett’s legal representation. Without such inquiries being made, the procedure employed by the trial court, and by the attorneys of record, deprived Dorsett, a layperson, of a fair opportunity to protect her interests. The result of this error is that not only were Dorsett’s interests not adequately protected, but there is an adverse material effect on the character and confidence in this judicial proceeding.

For example, although the complaint expressly states that the plaintiffs sought a retroactive child support order from the date of the twins’ birth, no mention was made of this issue at hearing. Hence, if the trial court’s judgment were affirmed, Dorsett might forever be precluded from raising this issue by application of the doctrine of res judicata.

We also believe the trial court erred by awarding the CSEA $1,397.49 as reimbursement for governmental financial assistance given to Dorsett and/or her twins. While it is beyond dispute that the ODHS has the authority to seek recoupment for its monetary expenditures for the support of its recipients, see R.C. 5107.07(A) and Ohio Adm.Code 5101:1-29-77, we believe that the proper procedure must be employed to recover such expenditures. R.C. 3111.04(A), as amended effective July 15, 1992, authorizes a county child support enforcement agency to initiate an action to determine paternity if the child resides in that county and the child’s mother is a recipient of public assistance as defined in that statute. Here, although Dorsett apparently received the type of public assistance envisioned by R.C. 3111.04(A) and an attorney for CSEA apparently initiated this action, CSEA was not made a party at the time of the filing of the complaint or at any time thereafter by utilization of the appropriate Ohio Rules of Civil Procedure. Only Dorsett and the twins were named as plaintiffs, not CSEA.

Further, in any event, there is no evidence in the record to support the trial court’s judgment awarding the CSEA $1,397.49. Nothing in the record indicates how the trial court arrived at this figure. In fact, the record shows that the CSEA attorney expressly stated that CSEA did not wish to pursue recovery for the financial assistance given to Dorsett. Clearly, the procedure employed here, awarding a nonparty governmental agency $1,397.49 without any basis in the record showing how this figure was calculated, and awarding it after the attorney representing the agency stated the agency would not seek recoupment, is inadequate to support any award as well as to serve the purpose of the statute affording to the agency its right to proceed in the matter. Obviously, any award given by the trial court to the CSEA for recoupment of its financial assistance needs to be supported by evidence submitted at hearing on the issue. No such evidence is in the record here. Hence, without any competent, credible evidence to support the trial court’s judgment, we must reverse that judgment awarding CSEA $1,397.49.

We further believe that Dorsett’s lack of legal representation contributed to the trial court’s errors of ordering Dorsett to seek employment and ordering the twins’ surname changed from Scott to Wheeler.

This court has previously held that a trial court may order an obligee to seek employment. See Justinger v. Schlegel (Feb. 19, 1993), Paulding App. No. 11-92-7, unreported, 1993 WL 44606, and R.C. 3109.05(A)(1). However, here, Dorsett, without legal representation in an action brought in her name by an attorney who did not represent her, may not be presumed to have foreseen that the trial court would sua sponte issue an order for her to seek work or address any other matter not raised in the pleadings. No evidence was adduced at hearing on the issue and the trial court did not inquire whether it was in the best interests of Dorsett’s five children for Dorsett to remain home. Although unsubstantiated by the record, the appellants’ brief asserts that one of Dorsett’s children is “handicapped,” which, if true, may require Dorsett to remain at home to care for this child. 1 This court has recently affirmed a trial court’s judgment that allowed a mother to resign her fulltime employment, without penalty, in order to better care for her children. See In re Bischoff (Aug. 10, 1994), Union App. Nos. 14-94-4 & 5, unreported, 1994 WL 424021. See, also, Smith v. Smith (1991), 75 Ohio App.3d 679, 600 N.E.2d 396. In any event, the trial court erred to Dorsett’s prejudice when it unilaterally ordered her to seek employment without first determining the best interests of the children in this matter.

The trial court also erred by changing the twins’ surname from Scott to Wheeler without determining whether it was in the best interests of the children. In Bobo v. Jewell (1988), 38 Ohio St.3d 330, 528 N.E.2d 180, paragraphs one and two of the syllabus, the Supreme Court of Ohio stated:

“Pursuant to R.C. 3111.13(C), a court of common pleas may determine the surname by which the child shall be known after establishment of the existence of the parent and child relationship, and a .showing that the name determination is in the best interest of the child.

“In determining the best interest of the child concerning the surname to be used when parents who have never been married contest a surname, the court should consider: the length of time that the child has used a surname, the effect of a name change on the father-child relationship and on the mother-child relationship, the identification of the child as part of a family unit, the embarrassment, discomfort or inconvenience that may result when a child bears a surname different from the custodial parent’s, the preference of the child if the child is of an age and maturity to express a meaningful preference and any other factor relevant to the child’s best interest. Courts should consider only those factors present in the particular circumstances of each case.”

Here, the trial court’s sole rationale for changing the twins’ surname was that it always did so upon the request of the father after paternity has been established. Although the dissent apparently sees no error in this procedure, the Supreme Court of Ohio was very clear that a trial court must determine the best interests of the children when considering a change in the children’s surname. The record shows that the twins are ten years of age, have apparently always used the surname of Scott, and Dorsett stated at hearing that the children wished to keep the name Scott. These are some of the factors the Supreme Court of Ohio specifically stated that a trial court is to consider when determining whether it is in the best interests of a child to change that child’s existing surname. Here, the record reveals there was no such inquiry concerning the twins’ best interests in this matter. Therefore, based on the authority of Bobo, supra, the trial court’s procedure was clearly error.

In passing, we note that Bobo cannot be distinguished from the case at bar merely because Dorsett and Wheeler were once married, as the twins were born prior to their marriage.

Finally, we do not disturb that portion of the trial court’s judgment finding Wheeler to be the natural father of the twins. Not only did Wheeler admit at hearing that he is the twins’ natural father but the record also shows that the blood tests of the parties concluded the probability of paternity at approximately ninety-nine percent.

Because the fair administration of justice requires that Dorsett be given an opportunity to secure counsel, whether through CSEA or by retaining private counsel, or be given an opportunity to knowingly and voluntarily waive such representation, we reverse the trial court’s judgment to the extent discussed above. 2

Appellants’ three assignments of error are well taken.

Having found error prejudicial to appellants, we reverse the trial court’s judgment in part, affirm the judgment in part, and remand this cause for further proceedings not inconsistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

Shaw, J., concurs. Hadley, J., dissents.

1 . The record is unclear whether Dorsett is the sole caretaker of the children.

2 . In the interest of clarity, our opinion and judgment herein do not mean that a trial court should appoint counsel at state expense for a person in Dorsett's position.