[Cite as J.R. v. N.M., 2011-Ohio-2782.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95255
J.R.
PLAINTIFF-APPELLANT
vs.
N.M., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Court Division Case No. SU 95772237
BEFORE: E. Gallagher, J., Kilbane, A.J., and Stewart, J. 2
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
For J.R. (Mother)
Andrew S. Pollis Lindsey E. Sacher, Legal Intern Milton A. Kramer Law Clinic Center C.W.R.U. School of Law 11075 East Boulevard Cleveland, Ohio 44106
FOR APPELLEE
For N.M. (Father)
N.M. 9822 Bessemer Ave. Cleveland, Ohio 44104
ATTORNEY FOR C.S.E.A.
Joseph C. Young Assistant County Prosecutor C.S.E.A. 1910 Carnegie Ave., 2nd Floor Cleveland, Ohio 44115
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant J.R. (“J.R.”) appeals from the decision of the trial 3
court, which determined the existence of an overpayment of child support.
J.R. argues that the trial court erred when it failed to provide timely and
adequate notice of the overpayment and without providing her with a
meaningful opportunity to be heard. For the following reasons, we affirm
the decision of the trial court.
{¶ 2} On June 23, 1995, the Child Support Enforcement Agency
(“C.S.E.A.”) established a parent-child relationship under case No.
P00015657 between the child I.M. (“child”), born January 31, 1992 and N.M.
(“N.M.”) as the father. Subsequently J.R. and N.M., in conjunction with the
county prosecutor, completed a guideline worksheet consenting to a specific
child support amount, admitting to N.M.’s deviation from the current
support guidelines and stipulating to past child support due to J.R. in the
amount of $1,540. In particular, the parties agreed that N.M. would pay
thru C.S.E.A. $69.23 every two weeks plus a 2% fee beginning April 26, 1996
as well as $10 every two weeks plus a 2% fee on past child support to J.R. for
care and support for the child.
{¶ 3} On February 1, 2010, C.S.E.A. sent a letter to J.R. and N.M.
informing the parties that it initiated an investigation regarding termination
of child support. On February 24, 2010, C.S.E.A. issued its findings of fact
and recommendations, through which it terminated the support obligation 4
on the child because she had reached the age of majority. Additionally,
C.S.E.A. found that an overpayment of $2,848.39 existed, although the
agency did not explain the manner or means for which this overpayment
accrued. C.S.E.A. mailed the findings of fact and recommendations to the
parties and included therein a request for administrative hearing form,
which provided the parties with an opportunity to object to the agency’s
findings at a hearing. The parties were given until March 29, 2010 to object
and request an administrative hearing. After no objections were received,
C.S.E.A. filed its recommendations with the trial court, which subsequently
journalized its order adopting the termination findings on May 13, 2010. A
copy of this order was sent to the parties.
{¶ 4} It is from this journal entry that J.R. now appeals, raising the
two assignments of error contained in the appendix to this opinion.
{¶ 5} In her first assignment of error, J.R. argues that the trial court
erred in finding an overpayment of child support because it failed to provide
timely and adequate notice of the overpayment. We disagree.
{¶ 6} Pursuant to R.C. 3119.89, C.S.E.A., has the authority to conduct
an investigation upon its own initiative if it receives notice, or if it otherwise
has reason to believe that the child support order should terminate. Once
its investigation is complete, C.S.E.A. is required to provide the parties with 5
notice of the results of its investigation as well as notice of their right to
request an administrative hearing regarding the conclusions reached. R.C.
3119.90(B). C.S.E.A. is also required to inform the parties “that the
conclusions of the investigations will be submitted to the court for inclusion
into a revised or terminated court child support order with no further court
hearing if the underlying order is a court child support order.” R.C.
3119.90(B)(3)(b). Lastly, R.C. 3121.23 requires service of Chapter 3119
notices at the last known address of the party.
{¶ 7} The trial court record reflects that C.S.E.A. initiated an
investigation, issued findings and recommendations, journalized those
findings and recommendations, and sent the required notices to both parties,
all compliant with the O.R.C. All notices were mailed to J.R. at her listed
address of 45 Hallmark Lane, Covington, Georgia, 30014. However,
throughout her brief, J.R. claims that notices of all of the above were sent to
the wrong address, that she had moved from Georgia to Cleveland, and she
only discovered the emancipation order when she returned to Georgia for a
visit. J.R. further claims that she notified C.S.E.A. of her change of address
although she admits in her brief that C.S.E.A. has no record of this change of
address.
{¶ 8} Unfortunately, J.R.’s allegations cannot be verified or refuted by 6
reference to the record before this court. J.R.’s last known address in the
record is 45 Hallmark Lane, Covington, Georgia, 30014 and, therefore,
service to that address was sufficient pursuant to R.C. 3131.23. Any
evidence J.R. may have supporting her allegations that she notified C.S.E.A.
is outside of the appellate record and unfortunately, outside of this court’s
purview. As stated in State v. Ishmael (1978), 54 Ohio St.2d 402, 377
N.E.2d 500, “a reviewing court cannot add matter to the record before it,
which was not a part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.”
{¶ 9} Accordingly, J.R.’s first assignment of error is overruled.
{¶ 10} In her second assignment of error, J.R. claims the trial court
violated her due process rights when it issued its order without providing her
with notice and a meaningful opportunity to be heard. We find this
assigned error to lack merit.
{¶ 11} As stated above, C.S.E.A. included in its findings the required
notices to the parties regarding their right to request an administrative
hearing, along with the explanation that if no hearing is requested, “the
conclusions of the investigations will be submitted to the court for inclusion
into a revised or terminated court child support order with no further court
hearing if the underlying order is a court child support order.” R.C. 7
3119.90(B)(3)(b). C.S.E.A. also provided notice to the parties that should
either party timely request an administrative hearing, the revised order
would not be issued as described; instead, the court would schedule a
hearing, provide notice and an opportunity to be heard to the parties and
after conducting a hearing, issue a decision. R.C. 3119.90(B)(4)–.91.
{¶ 12} Accordingly, once C.S.E.A. provides notice, it is up to the parties
to request an administrative hearing. R.C. 3119.90. In the present case,
we already determined that C.S.E.A. properly served all notices on J.R.’s last
known address. It was, therefore, up to J.R. to request the administrative
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[Cite as J.R. v. N.M., 2011-Ohio-2782.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95255
J.R.
PLAINTIFF-APPELLANT
vs.
N.M., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Court Division Case No. SU 95772237
BEFORE: E. Gallagher, J., Kilbane, A.J., and Stewart, J. 2
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
For J.R. (Mother)
Andrew S. Pollis Lindsey E. Sacher, Legal Intern Milton A. Kramer Law Clinic Center C.W.R.U. School of Law 11075 East Boulevard Cleveland, Ohio 44106
FOR APPELLEE
For N.M. (Father)
N.M. 9822 Bessemer Ave. Cleveland, Ohio 44104
ATTORNEY FOR C.S.E.A.
Joseph C. Young Assistant County Prosecutor C.S.E.A. 1910 Carnegie Ave., 2nd Floor Cleveland, Ohio 44115
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant J.R. (“J.R.”) appeals from the decision of the trial 3
court, which determined the existence of an overpayment of child support.
J.R. argues that the trial court erred when it failed to provide timely and
adequate notice of the overpayment and without providing her with a
meaningful opportunity to be heard. For the following reasons, we affirm
the decision of the trial court.
{¶ 2} On June 23, 1995, the Child Support Enforcement Agency
(“C.S.E.A.”) established a parent-child relationship under case No.
P00015657 between the child I.M. (“child”), born January 31, 1992 and N.M.
(“N.M.”) as the father. Subsequently J.R. and N.M., in conjunction with the
county prosecutor, completed a guideline worksheet consenting to a specific
child support amount, admitting to N.M.’s deviation from the current
support guidelines and stipulating to past child support due to J.R. in the
amount of $1,540. In particular, the parties agreed that N.M. would pay
thru C.S.E.A. $69.23 every two weeks plus a 2% fee beginning April 26, 1996
as well as $10 every two weeks plus a 2% fee on past child support to J.R. for
care and support for the child.
{¶ 3} On February 1, 2010, C.S.E.A. sent a letter to J.R. and N.M.
informing the parties that it initiated an investigation regarding termination
of child support. On February 24, 2010, C.S.E.A. issued its findings of fact
and recommendations, through which it terminated the support obligation 4
on the child because she had reached the age of majority. Additionally,
C.S.E.A. found that an overpayment of $2,848.39 existed, although the
agency did not explain the manner or means for which this overpayment
accrued. C.S.E.A. mailed the findings of fact and recommendations to the
parties and included therein a request for administrative hearing form,
which provided the parties with an opportunity to object to the agency’s
findings at a hearing. The parties were given until March 29, 2010 to object
and request an administrative hearing. After no objections were received,
C.S.E.A. filed its recommendations with the trial court, which subsequently
journalized its order adopting the termination findings on May 13, 2010. A
copy of this order was sent to the parties.
{¶ 4} It is from this journal entry that J.R. now appeals, raising the
two assignments of error contained in the appendix to this opinion.
{¶ 5} In her first assignment of error, J.R. argues that the trial court
erred in finding an overpayment of child support because it failed to provide
timely and adequate notice of the overpayment. We disagree.
{¶ 6} Pursuant to R.C. 3119.89, C.S.E.A., has the authority to conduct
an investigation upon its own initiative if it receives notice, or if it otherwise
has reason to believe that the child support order should terminate. Once
its investigation is complete, C.S.E.A. is required to provide the parties with 5
notice of the results of its investigation as well as notice of their right to
request an administrative hearing regarding the conclusions reached. R.C.
3119.90(B). C.S.E.A. is also required to inform the parties “that the
conclusions of the investigations will be submitted to the court for inclusion
into a revised or terminated court child support order with no further court
hearing if the underlying order is a court child support order.” R.C.
3119.90(B)(3)(b). Lastly, R.C. 3121.23 requires service of Chapter 3119
notices at the last known address of the party.
{¶ 7} The trial court record reflects that C.S.E.A. initiated an
investigation, issued findings and recommendations, journalized those
findings and recommendations, and sent the required notices to both parties,
all compliant with the O.R.C. All notices were mailed to J.R. at her listed
address of 45 Hallmark Lane, Covington, Georgia, 30014. However,
throughout her brief, J.R. claims that notices of all of the above were sent to
the wrong address, that she had moved from Georgia to Cleveland, and she
only discovered the emancipation order when she returned to Georgia for a
visit. J.R. further claims that she notified C.S.E.A. of her change of address
although she admits in her brief that C.S.E.A. has no record of this change of
address.
{¶ 8} Unfortunately, J.R.’s allegations cannot be verified or refuted by 6
reference to the record before this court. J.R.’s last known address in the
record is 45 Hallmark Lane, Covington, Georgia, 30014 and, therefore,
service to that address was sufficient pursuant to R.C. 3131.23. Any
evidence J.R. may have supporting her allegations that she notified C.S.E.A.
is outside of the appellate record and unfortunately, outside of this court’s
purview. As stated in State v. Ishmael (1978), 54 Ohio St.2d 402, 377
N.E.2d 500, “a reviewing court cannot add matter to the record before it,
which was not a part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.”
{¶ 9} Accordingly, J.R.’s first assignment of error is overruled.
{¶ 10} In her second assignment of error, J.R. claims the trial court
violated her due process rights when it issued its order without providing her
with notice and a meaningful opportunity to be heard. We find this
assigned error to lack merit.
{¶ 11} As stated above, C.S.E.A. included in its findings the required
notices to the parties regarding their right to request an administrative
hearing, along with the explanation that if no hearing is requested, “the
conclusions of the investigations will be submitted to the court for inclusion
into a revised or terminated court child support order with no further court
hearing if the underlying order is a court child support order.” R.C. 7
3119.90(B)(3)(b). C.S.E.A. also provided notice to the parties that should
either party timely request an administrative hearing, the revised order
would not be issued as described; instead, the court would schedule a
hearing, provide notice and an opportunity to be heard to the parties and
after conducting a hearing, issue a decision. R.C. 3119.90(B)(4)–.91.
{¶ 12} Accordingly, once C.S.E.A. provides notice, it is up to the parties
to request an administrative hearing. R.C. 3119.90. In the present case,
we already determined that C.S.E.A. properly served all notices on J.R.’s last
known address. It was, therefore, up to J.R. to request the administrative
hearing and we cannot say that the trial court acted erroneously in
journalizing the emancipation order without an administrative hearing when
no such hearing was requested.
{¶ 13} Lastly, J.R. argus that C.S.E.A. violated her due process rights
in allowing the $2,848.39 overpayment to accrue. Specifically, J.R. argues
that “if C.S.E.A.’s policies and procedures for calculating monthly payments
do not provide child support obligees with timely notice of excessive
payments, then the policy and procedure itself violates due process.” There
is no authority to support J.R.’s argument.
{¶ 14} Ohio law recognizes that for any number of reasons,
overpayment of child support can occur. See Dietrich v. Dietrich (Aug. 5, 8
2010), Cuyahoga App. No. 93786, 2010-Ohio-3608; R.C. 3123.821(B); and
O.A.C. 5101: 12-50-20.3, Overpaid Child Support. Although the methods of
collection of such overpayment may vary, it is clear that the accumulation of
an overpayment itself, does not violate the due process rights of any party
involved. Appellant’s second assignment of error is overruled.
{¶ 15} For the foregoing reasons, the judgment of the trial court is
affirmed. Appellant is advised to heed C.S.E.A.’s recommendation that she
seek relief in the trial court, “where her issues may be properly raised,
litigated and resolved based on the evidence presented.”
{¶ 16} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and 9
MELODY J. STEWART, J., CONCUR
APPENDIX
Assignments of Error:
“I. The trial court erred in finding an overpayment of child support because J.R. did not receive timely, adequate notice of the overpayment as required by O.R.C. §§ 3119.90(B) and 3121.23.
II. The trial court violated due process when it found an overpayment of child support without providing J.R. with notice and a meaningful opportunity to be heard.”