[Cite as Porter v. Porter, 2015-Ohio-3527.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




RANDALL S. PORTER,

        PLAINTIFF-APPELLEE,                             CASE NO. 11-15-02

        v.

PATRICIA S. PORTER,                                     OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Paulding County Common Pleas Court
                            Domestic Relations Division
                            Trial Court No. DIV-07-224

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: August 31, 2015




APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Troy A. Essex for Appellee
Case No. 11-15-02


SHAW, J.

       {¶1} Defendant-appellant, Patricia S. Porter (“Patricia”), appeals the

February 6, 2015 judgment of the Paulding County Court of Common Pleas,

Domestic Relations Division, granting the “Motion for Reimbursement and/or for

Judgment on Overpayment of Child Support” filed by plaintiff-appellee, Randall

S. Porter (“Randall”).     The trial court found that Randall was entitled to

reimbursement from Patricia in the amount of $18,982.00 for his overpayment of

child support.

       {¶2} The parties were divorced in 2010. Randall was named residential

parent of the parties’ three minor children.

       {¶3} In September 2011, Patricia became the children’s residential parent

pursuant to an ex-parte order. Randall was ordered to pay $1,003.75 per month in

child support, plus processing fees.

       {¶4} At a hearing in July 2012, Randall informed the trial court that he was

receiving disability benefits from his employer and that he was awaiting approval

for Social Security Disability benefits.

       {¶5} In its August 31, 2012 Judgment Entry, the trial court modified

Randall’s child support and ordered him to pay $1,034.11 per month, plus

processing fees.




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        {¶6} On December 12, 2013, the trial court issued a judgment entry again

modifying Randall’s child support due to the fact that the parties’ oldest child was

emancipated in October of 2013. The trial court reduced Randall’s child support

to $669.40 a month, plus processing fees, for the parties’ two minor children

remaining in Patricia’s custody.

        {¶7} On December 30, 2013, the Paulding County Child Support

Enforcement Agency (“CSEA”) filed a “Motion for Modification and Notice of

Hearing” on behalf of Randall and requested the trial court modify Randall’s child

support obligation. The record indicates that around this time Randall had been

approved for Social Security Disability benefits.

        {¶8} In February 2014, Patricia received a lump sum payment from the

Social Security Administration in the amount of $18,982.00, or $9,491.00 for each

minor child.1 The funds represented the children’s Social Security dependency

benefits received as the result of Randall being deemed disabled from December

2011 to January 2014. The lump sum equaled the amount of Social Security

dependency benefits for the children that had accrued during the time Randall’s

application was pending approval. Patricia also received notice from the Social

Security Administration that the children would continue to receive monthly

dependency benefits as a consequence of Randall’s disability.

1
 The parties’ oldest child directly received the payment due to her emancipation and she was not made a
party to the case. Thus, the reimbursement issue only pertained to the two minor children in Patricia’s
custody.

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       {¶9} Randall subsequently filed a “Memorandum Regarding Child Support

Review” to accompany the motion filed by CSEA. In his motion, Randall raised

the issue of reimbursement of the funds he paid to Patricia in child support from

December 2011 to January 2014—the same time frame covered by the lump sum

payment in dependency benefits that Patricia received from the Social Security

Administration. Randall requested CSEA to conduct a review of the amount of

child support he paid during this time period and to determine the amount he

overpaid in child support.     He also requested that his current child support

obligation to be reduced to zero in light of Patricia receiving ongoing monthly

Social Security dependency benefits for the children, the amount of which

exceeded his current court-ordered child support obligation. Patricia opposed this

memorandum.

       {¶10} The trial court held a hearing on September 30, 2014, and ordered

the parties to brief the reimbursement issue. The trial court further informed the

parties that it would take the matter under advisement.

       {¶11} On October 10, 2014, the trial court ruled on CSEA’s motion to

modify Randall’s child support. The trial court ordered that effective December

30, 2013, Randall’s child support would be reduced to $497.34 per month. The

trial court further found that commencing on February 1, 2014, Randall’s child




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support would be reduced to zero due to the ongoing monthly Social Security

dependency benefits sent to Patricia on the minor children’s behalves.

      {¶12} On October 30, 2014, Randall filed a “Motion for Reimbursement

and/or for Judgment on Overpayment of Child Support.” In this motion, Randall

argued that he was entitled to reimbursement of overpaid child support in the

amount of $18,982.00, which equaled the lump sum payment Patricia received

from the Social Security Administration. Randall cited this Court’s prior decision,

Hamilton v. Reynolds, in support of his position. See 3d Dist. Hancock No. 5-13-

11, 2013-Ohio-5660, appeal not allowed, 138 Ohio St.3d 1495, 2014-Ohio-2021.

Patricia again opposed Randall’s motion.

      {¶13} The parties also submitted a stipulation regarding the amount of child

support paid by Randall during the relevant time period, which stated as follows:

      1. The child support obligation, including prior arrearages, of
      Plaintiff, Randall S. Porter, for the time period from December
      1, 2011 through January 31, 2014 was $28,367.55 of which
      amount the sum of $27,811.31 was owed to Defendant, Patricia
      S. Porter.

      2. Plaintiff, Randall S. Porter, made child support payments
      through the Paulding County Child Support Enforcement
      Agency for the time period from December 1, 2011 through
      January 31, 2014 in the amount of $27,858.16, of which the sum
      of $27,311.90 was distributed to Defendant, Patricia S. Porter.

      3. On or about February 10, 2014, Defendant, Patricia S.
      Porter, received a lump sum check in the amount of $9,491.00
      from Social Security for the benefit of the parties’ minor child,
      [M.P.], which represented a lump sum payment of retroactive

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Case No. 11-15-02


         benefits from December 1, 2011 through January 31, 2014 as a
         result of the disability of Plaintiff, Randall S. Porter.

         4. On or about February 10, 2014, Defendant, Patricia S.
         Porter, received a lump sum check in the amount of $9,491.00
         from Social Security for the benefit of the parties’ minor child,
         [H.P.], which represented a lump sum payment of retroactive
         benefits from December 1, 2011 through January 31, 2014 as a
         result of the disability of Plaintiff, Randall S. Porter.

(Doc. No. 154).

         {¶14} On February 6, 2015, the trial court relying on our prior decision in

Hamilton found that Randall was entitled to reimbursement from Patricia in the

amount of $18,982.00 for overpaid child support.

         {¶15} Patricia filed this appeal, asserting the following assignments of

error.

                        ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED FINDING A BASIS IN LAW
         THAT REIMBURSEMENT OF CHILD SUPPORT IS
         REQUIRED BASED UPON THE [OHIO] SUPREME COURT
         CASE IN WILLIAMS V. WILLIAMS.

                        ASSIGNMENT OF ERROR NO. II

         THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
         HOLDING AN EVIDENTIARY HEARING REGARDING
         THE EQUITIES OF THE CHILD SUPPORT REVISION
         CASE.

                       ASSIGNMENT OF ERROR NO. III

         THE TRIAL COURT’S FINDING THAT REIMBURSEMENT
         WAS REQUIRED BASED UPON THE EQUITABLE

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        SITUATION OF THE PARTIES WAS AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE.

                            ASSIGNMENT OF ERROR NO. IV

        THE TRIAL COURT ERRED IN CALCULATING ANY
        REIMBURSEMENT THAT MAY BE DUE.

                                    First Assignment of Error

        {¶16} In her first assignment of error, Patricia argues that the trial court

erred in finding that Randall was entitled to reimbursement of the child support he

paid from December 2011 to January 2014, the same time period covered by the

lump sum payment of Social Security dependency benefits that she received in

February 2014 on the behalf of the two minor children in her custody. In support

of her position, Patricia voices her disagreement with the holding of our prior case,

Hamilton v. Reynolds, and essentially advances the same arguments as the

appellant in that case.2 See Hamilton, 2013-Ohio-5660.

        {¶17} In Hamilton, we addressed the precise issue raised by Patricia in this

appeal. We examined the earnings nature of Social Security Disability benefits as

expressed by the Supreme Court of Ohio in Williams v. Williams. 88 Ohio St. 3d

441, 2000-Ohio-375. We determined that the child support obligor is entitled to

reimbursement for child support paid to the obligee when the obligee subsequently

receives a lump sum of Social Security dependency benefits representing the same

2
  Notably, after our affirmance in Hamilton of the trial court’s order of reimbursement for overpaid child
support, the appellant-obligee appealed our decision to the Supreme Court of Ohio, who subsequently
declined jurisdiction to review the case.

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Case No. 11-15-02


months that the obligor paid child support. Id. at ¶ 29. Specifically, we concluded

that the obligor is entitled to a dollar for dollar credit for the child support paid

during that time period. Id. Thus, we have already addressed the arguments

raised by Patricia in this appeal in the Hamilton case and she has failed to give us

a compelling reason to revisit our holding in that opinion.        Accordingly, we

conclude that the trial court did not err in relying on Hamilton when it found that

Randall was entitled to reimbursement of his child support overpayment.

Patricia’s first assignment of error is overruled.

                      Second and Third Assignments of Error

       {¶18} In her second and third assignments of error, Patricia claims that the

trial court erred in failing to hold an evidentiary hearing on the issue of

reimbursement. She also contends that the trial court’s order of reimbursement

was against the manifest weight of the evidence. As a primary ground for her

arguments under these assignments of error, Patricia asserts that the trial court was

required to weigh the equities in the case before determining whether Randall was

entitled to reimbursement. Patricia also claims that our opinion in Hamilton is at

odds with the Ninth Appellate District’s case Filon v. Green, 9th Dist. Summit No.

23087, 2006-Ohio-4868.

       {¶19} Patricia’s position in this respect is based on a misconstruction of our

decision in Hamilton. The appellant in Hamilton also heavily relied on Filon and


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we thoroughly discussed our reasons for finding the rationale of the Filon opinion

not persuasive. We also noted, in dicta, that the court in Filon weighed the

equities presented in that case and determined that equity did not favor

reimbursement to the child support obligor based on his conduct towards the

obligee during the proceedings. We engaged in a discussion of the equities simply

as a basis to further distinguish Filon and to highlight that the same facts salient to

that court in its determination against reimbursement were not present in

Hamilton. Nowhere in our opinion in Hamilton did we require a trial court to

contemplate the equities of the parties’ situation as part of its determination of

whether reimbursement is appropriate. Thus, Patricia’s claim that the trial court’s

order of reimbursement was against the manifest weight of the evidence on the

basis that it did not consider the equities of the case is without merit.

       {¶20} Next, Patricia maintains that the trial court erred in failing to hold an

evidentiary hearing on the issue of reimbursement. Patricia’s argument is based in

part on her misconception that the trial court was required to consider the equities

of the case—i.e., that the trial court was compelled to hear evidence of the ways

she spent the child support overpayment for the benefit of the children. For the

reasons already discussed, we decline to further address that issue. However,

Patricia also contends that the trial court was required by statute to hold an




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evidentiary hearing prior to issuing its order for reimbursement. Patricia directs

our attention to R.C. 3119.66, which states:

       If the obligor or the obligee requests a court hearing on the
       revised amount of child support calculated by the child support
       enforcement agency, the court shall schedule and conduct a
       hearing to determine whether the revised amount of child
       support is the appropriate amount and whether the amount of
       child support being paid under the court child support order
       should be revised.

       {¶21} In making her argument on this point, Patricia fails to submit any

authority stating that the statute quoted above applies to a trial court’s

determination of reimbursement for an overpayment of child support as in this

instance. Moreover, the cases cited by Patricia either involve a trial court’s review

of the appropriateness of an administrative-adjustment recommendation by a child

support enforcement agency or discuss the hearing requirements of a different

statute not relied upon by Patricia. Nevertheless, there is no indication in the

record that Patricia even requested an evidentiary hearing and, furthermore, the

trial court informed the parties that it would take the matter of reimbursement

under advisement. Therefore, Patricia has failed to demonstrate that she suffered

any prejudice from the lack of an evidentiary hearing on this issue. For these

reasons, Patricia’s second and third assignments of error are overruled.




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                           Fourth Assignment of Error

       {¶22} In her fourth assignment of error, Patricia claims that the trial court

erred in calculating the reimbursement amount due to Randall. The trial court

used the stipulated child support figures in its reimbursement calculation. In its

judgment entry ordering reimbursement of the overpaid child support, the trial

court stated as follows:

       As the stipulation indicates, Plaintiff Randall Porter’s child
       support obligation from December 1, 2011 through January 31,
       2014 was $28,367.55 of which $27,811.31 was owed to the
       Defendant Patricia Porter.

       Plaintiff Randall Porter paid $27,858.16 as and for his child
       support obligation from December 1, 2011 through January 31,
       2014, of which $27,311.90 was distributed to Defendant, Patricia
       Porter.

       Also distributed to Patricia Porter, on or about February 10,
       2014 was $9,491.00 from Social Security for the benefit of [M.P.],
       representing a lump sum payment of Plaintiff’s retroactive
       Social Security benefits from December 1, 2011 through January
       31, 2014 and $9,491.00 from Social Security for the benefit of
       [H.P.], representing a lump sum payment of Plaintiff’s
       retroactive Social Security benefits from December 1, 2011
       through January 31, 2014. Therefore, Defendant Patricia Porter
       received $46,293.90 for the minor children from December 1,
       2011 through January 31, 2014 from child support paid by the
       obligor and Social Security benefits paid on behalf of the
       obligor.

(Doc. No. 156 at 2). The trial court then determined that Randall was entitled to

reimbursement of $18,982.00, which equaled the amount of the lump sum

payment that Patricia received from Social Security.

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       {¶23} On appeal, Patricia maintains that the trial court miscalculated the

amount of reimbursement because it failed to consider that Randall did not pay

child support for the months of December 2013 and January 2014. Patricia also

argues that Randall is only entitled to reimbursement for the amount of child

support he paid for the two minor children covered by the lump sum payments.

       {¶24} In reviewing this matter we note that the record indicates that the

figures submitted by the parties in their stipulation only included the total amount

of child support paid by Randall for all three children from December 1, 2011

through January 31, 2014. Thus, it is unclear from the stipulation what percentage

of the $27,311.90 distributed to Patricia in child support was attributable to the

two children at issue in the reimbursement matter before the court. To further

complicate things, the amount of Randall’s child support was modified four times

during the period of December 2011 through January 2014 and the parties’ oldest

child was emancipated in October 2013.

       {¶25} We also note that the lump sum payment appears to be a higher

monthly payment per child than the monthly amount Randall was required to pay

in the trial court’s child support orders. As we stated in Hamilton, Randall is only

entitled to a dollar for dollar credit for the amount he paid in child support during

the same time period covered by the lump sum payment. Accordingly, Randall is

not entitled to receive a reimbursement amount in excess of what he paid in child


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support during the time frame at issue. Consequently, because we cannot discern

from the figures included in the stipulation whether the trial court was presented

with the figures representing the actual amount in child support that Randall paid

for the two younger children during the relevant time period, we have no choice

but to sustain Patricia’s fourth assignment of error and to remand the case to the

trial court so that it can ascertain the appropriate amount for reimbursement and

apply the overpayment credit accordingly.

       {¶26} Based on the foregoing, the judgment of the trial court is affirmed in

part and reversed in part, and this case is remanded to the trial court for further

proceedings consistent with this opinion.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                              Cause Remanded

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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