In re Z.M.

2019 Ohio 1192

• Court: Ohio Court of Appeals
• Decided: April 1, 2019
• Docket: CA2018-04-070
• Status: Published

Opinion

[Cite as In re Z.M., 2019-Ohio-1192.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN THE MATTER OF: : CASE NO. CA2018-04-070

Z.M. : OPINION 4/1/2019 :

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JS2014-0606

Markisha D. Brown, appellee, pro se

William Martin, appellant, pro se

M. POWELL, J.

{¶ 1} Appellant ("Father") appeals, pro se, from a decision of the Butler County

Court of Common Pleas, Juvenile Division, denying his motion for relief from judgment

regarding his child support obligation.

{¶ 2} Appellee ("Mother") is the parent of an eight-year-old child. The record

suggests that the parties were never married. Father testified he signed an

acknowledgment of paternity at the hospital at the time of the child's birth. Mother's brief

indicates that due to Father's "reluctance to voluntarily assist financially with [the] child's

needs" and his failure to pay the amount of child support he promised to pay, she "requested Butler CA2018-04-070

assistance through the child support enforcement agency."

{¶ 3} On July 1, 2014, four years after the child's birth, the Butler County Child

Support Enforcement Agency ("CSEA") issued an administrative order finding that Father

was the child's parent and ordering him to pay $476.07 per month in child support. The

original administrative order provided that Father "has a duty of support for said child based

on either a final Acknowledgment of Paternity Affidavit filed with the Central Paternity

Registry, a presumption of paternity pursuant to [R.C.] 3111.03, or an administrative

paternity determination by the BUTLER County CSEA." Father filed a complaint in the

juvenile court challenging the administrative order regarding child support.

{¶ 4} On August 7, 2014, following a hearing on Father's complaint, a juvenile court

magistrate sustained Father's objection to the administrative order. Based upon an

attached child support worksheet reviewed, agreed to, and signed by both parties, the

magistrate ordered Father to pay $443.59 per month in child support. Father did not file

objections to the magistrate's decision and the decision was adopted by the juvenile court.

{¶ 5} In 2016, upon conducting an administrative adjustment review of Father's

child support obligation, the CSEA recommended that the monthly child support obligation

be increased to $534.99. Father moved for an administrative adjustment hearing, claiming

that the child support amount was excessive given the "time [he spends] with the child."

Upon conducting a hearing, the magistrate found that the daycare costs used to calculate

the administrative child support order were incorrect, granted Father's "request for judicial

mistake of fact order," and ordered that he pay $491.70 per month in child support. The

juvenile court subsequently adopted the magistrate's decision.

{¶ 6} Subsequently, Father filed a contempt motion against Mother, seeking to

decrease or terminate his child support obligation on the grounds he provided insurance

and clothes for the child and had the child 12 days each month. In turn, Mother moved the

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juvenile court to find Father in contempt for failing to pay the required monthly child support

obligation. During a hearing on the motions, Father stipulated he had not paid child support

as ordered. Consequently, the juvenile court granted Mother's contempt motion and

dismissed Father's contempt motion.

{¶ 7} In July 2017, Father moved to set aside the prior administrative and juvenile

court's child support orders. Father argued that all prior administrative child support orders,

and consequently the juvenile court's child support orders, were void on the basis of Coram

Non Judice because the administrative orders were issued by a biased hearing officer with

a pecuniary interest in the final outcome of the support hearings under Title IV-D of the

Social Security Act, and because the child support orders were not issued by a judge.

Father further argued that the void judgments were improperly used to seize his monetary

property in violation of the Fourteenth Amendment to the United States Constitution.

Finally, Father argued that the child support order was created under the false premise that

child support enforcement is mandatory. Father filed his motion pursuant to Fed.R.Civ.P.

60(b)(4).

{¶ 8} The magistrate conducted a hearing on Father's motion in 2018. In addition

to the arguments he made in his motion, Father further alleged he was defrauded when he

signed the acknowledgment of paternity at the time of the child's birth because he was not

advised of the legal consequences. Father alternatively characterized the acknowledgment

of paternity and the administrative child support orders as contracts. Father admitted his

paternity for the child, testified that he signed the acknowledgment of paternity, and

confirmed he was not contesting paternity. Conversely, Father tried to plead the Fifth

Amendment as to whether he was the child's father and asserted he could not be ordered

to pay child support if paternity was never established.

{¶ 9} On February 27, 2018, the magistrate overruled Father's motion to set aside

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the child support orders. The magistrate noted that Father never attempted to rescind the

acknowledgment of paternity as required by statute and never raised any of the foregoing

issues when he successfully objected to the CSEA's 2016 administrative order and

requested an administrative adjustment hearing on the ground the child support amount

was excessive. Father filed an objection to the magistrate's decision. On March 7, 2018,

the juvenile court overruled Father's objection and adopted the magistrate's decision.

{¶ 10} Father now appeals, raising one assignment of error:

{¶ 11} THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S

MOTION TO SET ASIDE THE JUDGMENT AS BEING VOID.

{¶ 12} Father argues that the original administrative child support order, and

consequently all subsequent administrative orders and juvenile court orders imposing child

support, are void because they stem from an elaborate fraud scheme under Title IV-D. That

is, because a hearing officer's salary is paid partially or wholly from federal funds received

from the department of health and human services in exchange for state agencies to

establish and enforce child support orders under Title IV-D, the original administrative order

was "created" by a hearing officer who had a pecuniary interest in the outcome of the case

and was therefore neither impartial nor unbiased. Father further argues that because "the

custodial parent receiving assistance is required to cooperate and assign rights for support

or will lose benefits," such parent is compelled to or might offer false information in order to

keep the benefits, thereby tainting the establishment of paternity. Finally, Father asserts

that paying child support is voluntary.1

1. In his reply brief, Father further challenges the validity of his child support obligation, arguing that it was improperly set up by a hearing officer who does not have an oath of office, the hearing officer failed to explain the rights and responsibilities of acknowledging paternity, and the income withholding order created by the CSEA improperly takes his monetary property without a warrant. It is well-established that a reply brief may only be used to respond to, or rebut, the appellee's brief, and may not be used to raise new assignments of error or new issues for review. Everbank Mtge. Co. v. Sparks, 12th Dist. Warren No. CA2011-03-021, 2012-

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{¶ 13} Father filed his motion to set aside void judgment under Fed.R.Civ.P. 60(b)(4)

which allows relief from a final judgment or order if "the judgment is void." However, the

Federal Rules of Civil Procedure are neither applicable nor binding here. See In re Anisha

N., 6th Dist. Lucas No. L-02-1370, 2003-Ohio-2356.

{¶ 14} To prevail on a motion brought under Civ.R. 60(B) in Ohio, the movant must

demonstrate that (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds

of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or

proceeding was entered or taken. Civ.R. 60(B)(3) allows relief from a judgment for fraud.

A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's sound discretion.

Anderson v. Anderson, 5th Dist. Holmes No. 02CA015, 2003-Ohio-1248, ¶ 16. In order to

find an abuse of that discretion, we must determine the juvenile court's decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

{¶ 15} We find no merits to Father's arguments. The Ohio Supreme Court has held

that the "parent of a minor has the common-law duty of support as well as a duty of support

decreed by court. The judicial decree of support simply incorporates the common-law duty

of support." In re Adoption of McDermitt, 63 Ohio St.2d 301, 305 (1980); Burrowbridge v.

Burrowbridge, 5th Dist. Stark No. 2005CA00049, 2005-Ohio-6303. The supreme court has

further held that "[a]n obligation to pay child support arises by operation of law and is a

personal duty owed to * * * the child, and society in general. It does not arise out of any

business transaction or contractual agreement[.]" Cramer v. Petrie, 70 Ohio St.3d 131, 135

(1994).

Ohio-886, ¶ 9, fn. 2; App.R. 16(C). We therefore decline to address these additional arguments. Id.; State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, ¶ 61. -5- Butler CA2018-04-070

{¶ 16} The term Title IV-D is a "shorthand reference to those provisions enacted by

the 'Social Services Amendment of 1974' to Title IV of the Social Security Act." Blankenship

v. Blankenship, 4th Dist. Adams No. 528, 1992 Ohio App. LEXIS 6279, *7 (Dec. 8, 1992).

Ohio "elected to participate in the Aid for Dependent Children ("ADC") program established

by Title IV-A of the Social Security Act, Section 601 et seq., Title 42, U.S.Code." Cramer

at 134. As a condition to receiving federal funding for ADC, the state is obligated to obtain

and enforce child support orders against noncustodial parents. Id. "In 1975, Congress

removed the child support program from Title IV-A and created a separate child support

program in Title IV-D of the Social Security Act. Section 651 et seq., Title 42, U.S.Code."

Id.

{¶ 17} "This legislation appropriates federal funds for the benefit of states which

implement carefully tailored programs to, among other things, enforce child support

obligations." Blankenship at *8. "The Ohio General Assembly has, in turn, enacted

legislation which designates the Department of Human Services, Division of Child Support,

as the state body which shall administer programs necessary to comply with the title IV-D

requirements for enforcement and collection of support orders." Id. "Moreover, each county

is required to designate a child support enforcement agency which shall operate a program

for child support enforcement in compliance with the title IV-D requirements." Id. Under

Title IV-D, states are required to provide child support enforcement services to families that

receive ADC benefits as well as families that do not. See Carelli v. Howser, 923 F.2d 1208

(6th Cir.1991).

{¶ 18} State programs under Title IV-D are designed for the purpose of enforcing the

support obligations owed by absent parents to their children. Cuyahoga Cty. Support

Enforcement Agency v. Lozada, 102 Ohio App.3d 442, 446 (8th Dist.1995). "As stated in

Title IV-D, the overriding concern of this program is to ensure optimum results in helping

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parents secure the proper amount of child support from the absent parents of their children."

Id. at 448. The Ohio Supreme Court has recognized that "Ohio has a direct financial interest

in the enforcement of child support orders." Cramer, 70 Ohio St.3d at 134. "Families

receiving ADC are required to assign their interests in child support to the state." Id. "In

addition, payments on child support arrearage are used in their entirety to compensate the

state for the ADC payments made to the family." Id. at 134-135. Thus, the state has a

strong interest in improving and ensuring the enforcement of child support obligations

because the public fisc is at stake. Id. Title IV-D child support cases in Ohio are governed

by R.C. Chapter 3125.

{¶ 19} The fact that Ohio has a direct financial interest in the enforcement of child

support orders owed by absent parents to their children, and that, as Father asserts, a

hearing officer's salary is paid partially or wholly from federal funds received from the

department of health and human services in exchange for state agencies to establish and

enforce child support orders under Title IV-D, does not mean the hearing officer was biased

or that the officer had a pecuniary interest in the outcome of the case. We note that in

addition to issuing an administrative child support order, the CSEA is empowered to

administratively review existing child support orders and may recommend that the child

support obligation be reduced or terminated.

{¶ 20} Father cites two decisions of the United States Supreme Court in support of

his argument that the administrative orders and juvenile court orders regarding child support

were void because of the state's pecuniary interest. Tumey v. Ohio, 272 U.S. 510, 47 S.Ct.

437 (1927); Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252 (2009).

Both decisions are inapplicable.

{¶ 21} Tumey involved a village mayor who had a direct, pecuniary interest in

convicting people of violating a state law prohibiting the possession of alcoholic beverages.

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Specifically, the mayor could only be paid for his services as a judge if he convicted those

who were brought before him, and he had an interest in generating revenue for the village

by convicting and fining those before him. Reversing the defendant's conviction, the

Supreme Court held that the practice violated the Fourteenth Amendment to the United

States Constitution and deprived the defendant of due process by subjecting his liberty or

property to the judgment of a court, the judge of which had a direct, personal, and

substantial pecuniary interest in reaching a conclusion against him in his case. Tumey at

523. The Supreme Court further held that the Due Process Clause required disqualification

of the mayor-judge "both because of his direct pecuniary interest in the outcome, and

because of his official motive to convict and to graduate the fine to help the financial needs

of the village." Id. at 535.

{¶ 22} In Caperton, the Supreme Court held that due process requires a judge's

recusal "when a person with a personal stake in a particular case had a significant and

disproportionate influence in placing the judge on the case by raising funds or directing the

judge's election campaign when the case was pending or imminent." Caperton, 556 U.S.

at 884. Under this test, the Supreme Court held that a state supreme court justice was

required to recuse himself from a case involving a corporate litigant whose chief executive

officer had contributed $3 million to the justice's campaign for office. Id. at 873. The

executive's contributions were more than the total amount spent by the justice's other

supporters and three times the amount spent by the justice's own campaign committee.

"On these extreme facts the probability of actual bias [rose] to an unconstitutional level." Id.

at 886-887.

{¶ 23} Father's contention that the hearing officer was disqualified because of

pecuniary interest is not tenable and does not come within the purview of Tumey or

Caperton, because the hearing officer's salary is not dependent upon whether a child

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support order is established in the first instance or upon the amount of child support ordered.

{¶ 24} Likewise, Father's contention that the establishment of paternity might be

tainted in a Title IV-D child support case is speculative and not tenable as there is no

evidence such happened here.

{¶ 25} Parentage is primarily governed by R.C. Chapter 3111. The father-child

relationship may be legally established in Ohio by an acknowledgment of paternity. See

R.C. 3111.20 to 3111.35. An acknowledgment of paternity occurs when a man affirms

under oath, on a government prescribed form, that he is the natural father of the named

child. See R.C. 3111.31. Pursuant to R.C. 3111.25, an acknowledgement of paternity

becomes final and enforceable without ratification of the court when the acknowledgement

has been entered in the birth registry and the 60-day time period for rescission under R.C.

3111.27 has passed. Clark v. Malicote, 12th Dist. Clermont No. CA2010-07-049, 2011-

Ohio-1874, ¶ 12, fn. 3. After the acknowledgment of paternity becomes final, the

acknowledgment may be rescinded pursuant to R.C. 3111.28 on the basis of fraud, duress,

or material mistake of fact. An action under R.C. 3111.28, however, must be filed within

one year of the acknowledgment becoming final. Once the acknowledgment becomes final,

the man who signed it assumes the parental duty of support. R.C. 3111.26.2

{¶ 26} Pursuant to R.C. 3111.84, the father of a child who is the subject of an

administrative support order may object to the order by bringing an action in the juvenile

court under R.C. 2151.231. An action under R.C. 3111.84, however, must be filed no later

2. R.C. 3111.31 prescribes that the acknowledgment of paternity form include "in boldface type at the top of the affidavit the rights and responsibilities of and the due process safeguards afforded to a person who acknowledges that he is the natural father of a child, including that if an alleged father acknowledges a parent and child relationship he assumes the parental duty of support[.]" By signing the acknowledgment of paternity form, an alleged father affirms "that he has received information regarding his legal rights and responsibilities, that he consents to the jurisdiction of the courts of [Ohio], and that he is the natural father of the child named on the form and assumes the parental duty of support of the child." R.C. 3111.31(F). Father did not produce a copy of the acknowledgment of paternity or otherwise establish that the acknowledgment he signed was not in compliance with R.C. 3111.31. -9- Butler CA2018-04-070

than 30 days after the date the administrative support order is issued. If neither parent

brings an action within that 30-day period, the administrative support order is final and

enforceable by a court and may be modified only as provided in R.C. Chapters 3119, 3121,

and 3123.

{¶ 27} Father testified he signed an acknowledgment of paternity at the time of the

child's birth in 2010. Father never attempted to rescind the acknowledgment as required

by R.C. 3111.28 for fraud, duress, or material mistake of fact. Father successfully objected

to the original administrative child support order in 2014, thereby prompting a hearing

followed by a decrease in his monthly child support obligation. In 2016, he again

successfully objected to an administrative order, thereby prompting a hearing. His objection

was sustained by the juvenile court and the amount of his monthly child support obligation

was modified. There has been no new determination of child support since 2016. While

Father twice objected to an administrative order, he never raised any of the issues he raised

in his motion to set aside or now raises on appeal.

{¶ 28} In light of the foregoing, we find that the juvenile court did not err in denying

Father's motion to set aside a void judgment. Father's assignment of error is overruled.

{¶ 29} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

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