[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.
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    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
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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
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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
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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,
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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.”
