Summary
In San Diego v. Elavsky (1979), 58 Ohio St.2d 81, 12 O.O.3d 88, 388 N.E.2d 1229, the Ohio Supreme Court stated that an initial URESA order is modified only if the original court which granted the parties' divorce specifically orders the modification.
Summary of this case from Bobbs v. ClineOpinion
No. 78-899
Decided May 2, 1979.
Uniform Reciprocal Enforcement of Support Act — Support order — Modification by court in local divorce case.
1. The amount of support ordered in an initial proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), R.C. Chapter 3115, must conform to the amount determined in a previous divorce case, but once the URESA order is established it is not modified by a subsequent proceeding in the divorce action, unless the divorce court specifically so provides. (R.C. 3115.27 and 3115.28 harmonized.)
2. Where a state or political subdivision thereof is the petitioner in a URESA action, pursuant to R.C. 3115.07, a court in a local divorce case cannot modify the existing URESA order, even if it so specifically provides, unless the URESA petitioner has had prior notice of the local proceeding, in which modification is to be considered, and an opportunity to protect its interests therein.
APPEAL from the Court of Appeals for Summit County.
On March 26, 1976, appellant, John R. Elavsky, was granted a divorce from Esther Elavsky by the Court of Common Pleas of Summit County, Domestic Relations Division. (Hereinafter referred to as the "local divorce case.") Custody of the parties' minor child was awarded to Esther Elavsky, with visitation rights being granted to appellant. The initial support order required John Elavsky to pay $20 per week. This order was subsequently modified, on June 29, 1976, allowing Esther Elavsky to remove the child from the court's jurisdiction and reducing the support payments, because of appellant's disability and unemployment, to $10 per week until his weekly net income exceeds $100; thereafter, in accordance with the original decree.
On June 23, 1976, a certified petition for support payments was filed in the same court on behalf of appellee, County of San Diego, pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), R.C. Chapter 3115. (Hereinafter referred to as the "URESA case.") The petition stated that the County of San Diego was a political subdivision of the state of California which had become obligated to provide for the support of appellant's minor offspring. Appellee prayed that the court find that John Elavsky owes a duty of support, and that he be ordered to pay the County of San Diego for its past support and for further support so long as appellee continues to provide support for appellant's dependent.
Following a hearing on the URESA petition, the Court of Common Pleas, on July 15, 1976, ordered appellant to pay the County of San Diego, through the local court, $10 per week until his net income exceeds $100, and thereafter $20 per week. Thus, the court conformed the URESA support order to the order in the local divorce case, as it then provided.
The local support order was again modified on November 4, 1976, at which time, in return for Esther Elavsky's waiver of support arrearages, appellant was required to commence paying $15 per week. Neither party contends that this modification affected the URESA order.
On February 4, 1977, in ruling upon appellant's motion for modification of the local support order, the Domestic Relations referee found that appellant had been denied visitation rights by Esther Elavsky, and that appellant was still disabled and unemployed. Upon these findings, the referee recommended that, until the child was returned to Summit County, all support arrearages be abated, and support payments be reduced to 25 cents per week. These recommendations became the present support order in the local divorce case, when the common pleas judge signed the referee's report.
On July 21, 1977, appellant again appeared before a Domestic Relations referee of the Court of Common Pleas of Summit County to show cause why he should not be held in contempt for failure to comply with the July, 1976, URESA order. At the conclusion of this hearing, the referee granted judgment for petitioner, County of San Diego, the award being based upon the URESA $10-per-week order to February 4, 1977, and upon the 25-cent-per-week local support order thereafter.
Appellee filed objections to the referee's report, which were ruled upon by the Court of Common Pleas on November 1, 1977. The court held, inter alia, that R.C. 3115.27 controlled, so that when the court modified support payments in the local divorce case, by implication, it also modified the support order in the URESA action. Accordingly, appellant was only obligated to pay the amount established in the local divorce case (25 cents per week). Additionally, the court consolidated the URESA case into the local divorce case, held that the petitioner was in essence Esther Elavsky, and reserved to Esther Elavsky the right to seek modification of that order.
Upon appeal by the County of San Diego, the Court of Appeals reversed the judgment of the lower court, upon the basis of three alleged errors by that court. The Court of Appeals held that the trial court erred (1) by finding that the petitioner in the URESA case was in essence Esther Elavsky, (2) in allowing the issue of visitation to be considered in the URESA action, and (3) in finding that the URESA order had been modified by implication on February 4, 1977.
This cause is now before this court upon a motion to certify the record.
Mr. Stephan M. Gabalac, prosecuting attorney, and Mr. Robert W. Lowrey, for appellee.
Vasko, Howard Morris Co., L.P.A., and Mr. William E. Howard, for appellant.
The primary issue in this cause is whether the February 4, 1977, reduction of support payments in the local divorce case modified, by implication, the existing URESA support order. The resolution of this issue basically involves an interpretation of R.C. 3115.27 and 3115.28.
In interpreting these statutes, it is important to remember that a proceeding under the Uniform Reciprocal Enforcement of Support Act is a separate, independent action to enforce support obligations (see, e. g., Skinner v. Fasciano, 75 Ohio Law Abs. 409, 137 N.E.2d 613; Stubblefield v. Stubblefield [Tex. Civ. App. 1954], 272 S.W.2d 633; Whittlesey v. Bellah, 130 Cal.App.2d 182, 278 P.2d 511, certiorari denied 350 U.S. 821), and that "[t]he remedies provided * * * [therein] are in addition to, not in substitution for, any other remedies" (R.C. 3115.02). A situation where a relationship does exist between a URESA proceeding and a prior divorce decree is contemplated by R.C. 3115.27, which provides, in part:
"A responding court shall not stay the proceeding or refuse a hearing under sections 3115.01 to 3115.34, inclusive, of the Revised Code because of any pending or prior action or proceeding for divorce, separation, annulment, dissolution, habeas corpus, adoption, or custody in this or any other state. * * * If the other action or proceeding is concluded before the hearing in the instant proceeding and the judgment therein provides for the support demanded in the complaint being heard, the court must conform its support order to the amount allowed in the other action or proceeding. * * *"
The trial court in the initial URESA action, on July 15, 1976, complied with that code provision when it conformed its support order to the existing order in the local divorce case. However, when the Court of Common Pleas, on November 1, 1977, approved the referee's reduction of the URESA payments retroactively to February 4, 1977 (the date of the last modification in the local divorce case), it also cited R.C. 3115.27 for the proposition that "when this court modified support payment in the divorce case, by implication, it also modified the support order in the reciprocal action * * *."
This was a misapplication of R.C. 3115.27 by the trial court. That statute provides that the court in the initial URESA proceeding must conform its order to an existing support order in the divorce action; it does not deal with what, if any, effect a subsequent modification in the divorce proceeding will have upon an existing URESA order. This latter situation is treated by R.C. 3115.28, which provides, in pertinent part:
"Any support order issued by a court of this state pursuant to sections 3115.01 to 3115.34, inclusive, of the Revised Code, * * * is not nullified by a support order made by a court of this state pursuant to any other law * * * regardless of priority of issuance, unless otherwise specifically provided by the court. * * *" (Emphasis added.)
The February 4, 1977, order in the local divorce case made no mention of the existing URESA order. Thus, if R.C. 3115.28 has any meaning there could not have been a modification by implication of the URESA order at that time. The trial court's, and appellant's, interpretation of R.C. 3115.27 as requiring such a modification would completely abrogate the effect of R.C. 3115.28.
In light of the facts presented, appellant's argument that there is a distinction between a "modification" and a "nullification," and that the former is not controlled by R.C. 3115.28 is not persuasive. Realistically, the reduction of support payments to 25 cents per week must be considered tantamount to a finding that a duty of support no longer existed. Furthermore, other courts that have considered the same situation, i.e., a URESA support order and a support order pursuant to a divorce decree, each in differing amounts, have held that their version of R.C. 3115.28 prohibits an implied modification by one of the other. See, e. g., Banton v. Mathers (1974), 159 Ind. App. 634, 309 N.E.2d 167; Campbell v. Jenne (Mont. 1977), 563 P.2d 574.
The trial court's interpretation of R.C. 3115.27 also had the effect of predicating the amount of support ordered in the URESA action upon the denial of visitation rights by Esther Elavsky. This is prohibited by R.C. 3115.21. See, e. g., McCoy v. McCoy (1977), 53 Ohio App.2d 331.
It is a primary rule of statutory construction that courts should not construe one statute in a way that would abrogate, defeat, or nullify another statute, where a reasonable construction of both is possible. (See 50 Ohio Jurisprudence 2d 209, Section 229, and cases cited therein.) R.C. 3115.27 and 3115.28 can be reconciled if the applicability of the former section is limited to the initial URESA proceeding, as was done below when the July 15, 1976, URESA support order was conformed to the existing order in the local divorce case. Such a construction gives full effect to the commands of R.C. 3115.27 without conflicting with the provisions of R.C. 3115.28. Thus, in conclusion, the amount of support ordered in the initial URESA proceeding must conform to the amount determined in a previous divorce case, but once the URESA order is established, it is not automatically modified by a subsequent proceeding in the divorce action, unless the divorce court specifically so provides.
In an action such as the instant cause, R.C. 3115.28 must also be read in conjunction with R.C. 3115.07, which gave appellee the right to institute the URESA proceeding to secure reimbursement from appellant for the support it had furnished to appellant's dependent child, and to obtain further support. Where a state or political subdivision is the petitioner in the URESA action, the court in the local divorce case should not be able to modify the URESA order, even if it so specifically provides, unless the URESA petitioner has had prior notice of the local proceeding and an opportunity to protect its interests therein. While the state or political subdivision will normally have the same rights as the individual obligee in such a case, it, rather than the parent or child, may be the party most desirous of enforcing those rights. Thus, the Court of Common Pleas also erred when it held that Esther Elavsky was in essence the petitioner in the URESA case.
R.C. 3115.07 reads as follows:
"If a state or political subdivision furnishes support to an individual obligee, it has the same right to initiate a proceeding under sections 3115.01 to 3115.34, inclusive, of the Revised Code, as the individual obligee for the purpose of securing reimbursement for support furnished and of obtaining continuing support."
It has been said that R.C. 3115.07 "is important because there have been many cases where obligees are content to remain on relief rather than go to the trouble to sue." Brockelbank, Interstate Enforcement of Family Support, 36 (1971).
For the foregoing reasons the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, LOCHER and HOLMES, JJ., concur.