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Law Voiding Pre-existing Child Support Arrearage Judgments Held Unconstitutional

2004-1293. Smith v. Smith, 2006-Ohio-2419.
Hancock App. No. 5-03-12 , 157 Ohio App. 778, 2004-Ohio-3553. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer and O'Connor, JJ., concur.
Lundberg Stratton, O'Donnell and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-2419.pdf

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(May 31, 2006) In a decision announced today, the Supreme Court of Ohio ruled that a provision added to Ohio's child support statute in October 2000 is unconstitutional because it retroactively stripped some children of their vested right to receive support arrearages that were awarded by state courts before the legislation was enacted. The Court's 4-3 decision was written by Justice Paul E. Pfeifer.

Under Ohio paternity and child support statutes in effect prior to October 2000, a legal action to establish paternity and obtain child support could be initiated at any time prior to a child's 18th birthday, and juvenile courts could, at their discretion, order the father to make “arrearage” payments for unpaid support dating all the way back to the child's birth.

Under legislation that took effect Oct. 27, 2000, a new statutory provision, R.C. 3111.13(F)(3), mandated that Ohio courts shall not order the payment of child support arrearage for any period prior to the date on which a paternity action was initiated in cases where a) the legal action was not commenced prior to the child's third birthday; and b) the father did not know or have reason to know that he was the child's father until the child support action was filed. The bill included specific language stating that any person exempt from paying arrearage under R.C. 3111.13(F)(3) “is entitled to a modification of an existing order for arrearages under this division regardless of whether the … court order … from which relief is sought was issued prior to, on, or after October 27, 2000.”

In this case Matthew Smith and Shirley Smith of Findlay, who are not related and were never married, had a brief relationship from November 1986 to February 1987. Shortly after that relationship ended, Shirley discovered that she was pregnant. She never informed Matthew that she was pregnant or had given birth to a child she believed to be his, and the two had no contact or communication with one another for 10 years.

In 1997, a paternity action was filed in Hancock County Juvenile Court seeking child support from Matthew for Shirley's daughter retroactive to the date of the child's birth. In December 1999, after DNA testing established that he was the father, Matthew was ordered to begin paying current child support and was also ordered to pay arrearage for the preceding 10 years totaling more than $44,000.

After the General Assembly adopted RC. 3111.13(F)(3), Matthew filed a motion asking the juvenile court to revoke the part of its 1999 order requiring him to pay arrearage for the period prior to the filing of Shirley's paternity action. In opposing revocation of the arrearage award, Shirley asked the juvenile court to issue a declaratory judgment that R.C. 3111.13(F)(3) violated the Ohio Constitution by retroactively taking away her legal right to recover support arrearage for her child's first 10 years of life – a right that had been adjudicated and enforced by a valid court order before the law was changed. The juvenile court found the statute constitutional.

On review, the 3rd District Court of Appeals reversed. The appellate court concluded that the right of a child to be supported by both parents is a “substantive legal right,” and that the portion of R.C. 3111.13(F)(3) requiring that arrearage awards already in force prior to October 2000 must be revoked was unconstitutional and unenforceable. Matthew appealed the 3rd District's ruling, and the Supreme Court agreed to hear arguments in the case.

Writing for the majority in today's decision, Justice Pfeifer said there was no question that the legislature intended R.C. 3111.13(F)(3) to be applied retroactively, leaving the Court to determine only whether the statute is “substantive” rather than “remedial” in nature. Quoting from the Supreme Court's 1988 decision in Van Fossen v. Babcock & Wilcox, Justice Pfeifer wrote that “(a) substantive statute is one that ‘impairs vested rights, affects an accrued substantive right or imposes new or additional burdens, duties, obligations or liabilities as to a past transaction.'”

In this case, Justice Pfeifer wrote, “Matthew's duty to support his child is manifest at common law and in statutory law. Moreover, and of the utmost significance to this case, Matthew's duty to pay the child-support arrearage is memorialized by a court order that was issued prior to the amendment of R.C. 3111.13(F)(3)(a). We cannot but conclude that Shirley has a vested right in that court order. Any statute that impairs Shirley's vested right is substantive. … We hold, therefore, that R.C. 3111.13(F)(3), as applied to this case, is unconstitutional because it would retroactively vacate the court order requiring Matthew to pay the arrearage in child support.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Alice Robie Resnick and Maureen O'Connor. Justice Evelyn Lundberg Stratton entered a dissent that was joined by Justices Terrence O'Donnell and Judith Ann Lanzinger.

In her dissent, Justice Stratton disputed the majority's holding that existing arrearage orders modified by enactment of RC. 3111.13, such as the order in this case, conveyed a “vested right” on the recipient. While acknowledging that a judgment usually creates a vested right, Justice Stratton wrote that “child-support orders are distinguishable to the extent that courts have continuing jurisdiction to modify such support orders, including the right to order a reduction of support. … (B)ecause child support orders are subject to modification, unlike a judgment in a typical civil case, for the limited purpose of the constitutional analysis herein, I believe that a judgment ordering payment of an arrearage of child support is not a vested right.”

John C. Filkins, 419.427.9000, for Matthew L. Smith.

Steven M. Powell, 419.423.8668, for Shirley E. Smith.