Opinion
No. 87-DR-540.
Decided May 19, 1988.
Ingram Ingram and John G. Ingram, for plaintiff. Patricia S. Roberts, for defendant.
This matter came before the court on April 7, 1988 on "Objections to the Report of Referee" filed by defendant, Gilbert Rodriguez. Upon the evidence adduced, the court finds that counsel for plaintiff was properly served with a copy of defendant's objections and notice of hearing; that said objections were timely filed and were proper as to form; that plaintiff, Anna Rodriguez, has denied visitation to defendant by removal of the parties' minor children from the state of Ohio without the consent of the court and without notice or provision of forwarding address to defendant; and that defendant is thereby prevented from contact with said minor children.
Defendant, in his objections to the report of the referee, objects only to the distribution to plaintiff of child support payments made by him to the Mahoning County Child Support Enforcement Agency, and asks that the court impound said payments until adequate arrangements have been made for the exercise of visitation by defendant.
The court, in accordance with the policies of Ohio courts, has long regarded the exercise of visitation with minor children by a noncustodial parent to be in the best interests of the children. "* * * Visitation between noncustodial parents and their children is accorded a very high status in Ohio. * * *" Baldwin's Ohio Domestic Relations Law (1987), Text, Section 41.01(C), at 427. As the Ohio Supreme Court declared in Porter v. Porter (1971), 25 Ohio St.2d 123, 128, 54 O.O.2d 260, 263, 267 N.E.2d 299, 303:
"We, therefore, recognize that the need of a child for visitation with a separated parent is a natural right of the child and is as worthy of protection as is the parent's right of visitation with the child. Thus, the failure, without just cause, of a divorced or separated parent having custody of a child to accord visitation rights to the other parent is not only an infringment [ sic] of the other parent's right to visitation but is also an infringement of the child's right to receive the love, affection, training and companionship of the parent."
Accordingly, the court has broad discretion in visitation matters. State, ex rel. Scordato, v. George (1981), 65 Ohio St.2d 128, 19 O.O.3d 318, 419 N.E.2d 4; Appleby v. Appleby (1986), 24 Ohio St.3d 39, 24 OBR 81, 492 N.E.2d 831.
The inclusion in every visitation order issued by this court of a prohibition against removal of minor children from the state of Ohio without the consent of the court is, inter alia, intended to prevent exactly the egregious conduct engaged in by plaintiff herein: the frustration of visitation rights of the noncustodial parent by removal of the children from the parent's access by arbitrarily increasing the geographical distance between the children and the noncustodial parent.
Formerly, the provisions of R.C. 3109.05(B) (see 141 Ohio Laws, Part III, 4725, 4751, 4752) expressly authorized the court to "make any modification that it determines just in an order of support" upon demonstration that visitation of the noncustodial parent has been "continuously or repeatedly" denied. Further, under the Uniform Reciprocal Enforcement of Support Act ("URESA"), R.C. 3115.21(B) (see 138 Ohio Laws, Part II, 3347, 3347-3348) formerly expressly authorized the court to impound child support funds paid by the noncustodial obligor upon continuous or repeated prevention of the exercise of visitation rights of the noncustodial parent by the obligee.
This court is well aware that the foregoing statutory provisions have been deleted by Sub. H.B. No. 231, effective October 5, 1987. (See 142 Ohio Laws, Part II, 2634, 2709-2710, 2738.)
Notwithstanding, this court is mindful that, under the circumstances of this action, where the removal of the parties' minor children from the state by the plaintiff is done without consent of the court and without notice to or provision to the defendant father of even the location of his children, defendant is not only denied visitation but denied the ability to contact his children or to even know their whereabouts. The fact that plaintiff's whereabouts is presently unknown, as well as the location of plaintiff outside the state of Ohio, effectively precludes the exercise of the court's contempt power. Absent the remedy of impoundment of support, the court is without an alternative remedy to protect the best interests of said children in ensuring their continued contact and visitation with their father. The result would be that the court, as a court of equity, would be powerless to do equity, and powerless to grant the relief necessary to effect compliance with its orders.
Accordingly, the court is persuaded by the reasoning of the court in Illinois Dept. of Public Aid, ex rel. Washoe Cty., Nevada, v. Peterson (1987), 156 Ill. App.3d 657, 108 Ill.Dec. 720, 509 N.E.2d 146. In Peterson, the Illinois trial court had impounded support payments for denial of visitation. A URESA petition initiated by the custodial parent, a Nevada resident, sought to override the impoundment order. The trial court declined to vacate the impoundment order. The Illinois appeals court upheld the propriety of the use of a support impoundment order to enforce a valid court order of visitation and determined that such enforcement orders cannot be circumvented by URESA petitions.
The appellate court acknowledged "the policy problems with tampering with support for purposes of enforcing visitation orders," but further recognized that "the frustration in enforcing visitation rights from hundreds of miles away cannot be ignored." Id. 156 Ill. App.3d at 661, 108 Ill.Dec. at 723, 509 N.E.2d at 149. The reviewing court, in affirming the order of impoundment, reasoned that, since the petitioner's rights under URESA provide only for enforcement of support orders of issuing courts, such rights of enforcement are derivative of existing support obligations, and cannot override orders of the issuing court. Thus, the issuing court has the inherent power to order that support payments be impounded until its orders are complied with. Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870.
The foregoing reasoning, adopted herein by the court, is consistent with the purposes of Ohio's URESA statutes, as set forth in R.C. 3115.01(A), which provides:
"The purposes of sections 3115.01 to 3115.34 of the Revised Code are to improve and extend by reciprocal legislation the enforcement of duties of support." (Emphasis added.)
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. The report of the referee issued in this matter is hereby modified to provide that all payments of support made by defendant Gilbert Rodriguez pursuant to the referee's report and recommendation issued herein shall be impounded by the Mahoning County Child Support Enforcement Agency and shall be held by said agency and shall not be paid to plaintiff Anna Rodriguez until further order of the court.
2. Such impoundment shall continue until arrangements satisfactory to the court have been made for defendant's regular contact with, and exercise of visitation with, the minor children of the parties; and, in order to effect such arrangements, plaintiff shall appear before this court in person.
3. The Mahoning County Child Support Enforcement Agency shall provide to defendant, or his counsel, any and all information regarding the present address of plaintiff Anna Rodriguez.
4. The court, having examined the findings of fact of the referee, on the basis of these findings, hereby adopts all provisions of the report of the referee not specifically modified herein.
Judgment accordingly.