[Cite as Schroeder v. Niese, 2016-Ohio-8397.]




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




LISA M. SCHROEDER,
                                                         CASE NO. 12-16-05
   PLAINTIFF-APPELLANT,

  v.

DENNIS V. NIESE,                                         OPINION

       DEFENDANT-APPELLEE.



                 Appeal from Putnam County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 20154060

                                     Judgment Affirmed

                          Date of Decision: December 27, 2016



APPEARANCES:

         Howard A. Elliott and Jeffrey Whitman for Appellant

         Keith H. Schierloh for Appellee
Case No. 12-16-05


WILLAMOWSKI, J.

       {¶1} The plaintiff-appellant, Lisa M. Schroeder (“Schroeder”), appeals a

decision from the Juvenile Division of the Putnam County Court of Common Pleas.

Schroeder alleges that the trial court erred by declining to make child support

effective from the date her child was born instead of from the date she filed her

complaint. For the reasons set forth below, the judgment of the lower court is

affirmed.

       {¶2} Schroeder is the mother and natural guardian of CN. Doc. 1. CN was

born in December of 2012. Id. On October 8, 2015, Schroeder filed a complaint to

determine parentage with the Juvenile Division of the Putnam County Court of

Common Pleas that named Dennis V. Niese (“Niese”) as the defendant. Id. After

the genetic testing results were returned, Niese filed an answer that admitted he was

the father of CN. Doc. 11, 15. On January 26, 2016, Schroeder and Niese came to

the court with an agreement on several child support matters, but the issues of “past

due medical expenses and the effective date of the child support to be paid”

remained unresolved. Doc. 18. Tr. 9.

       {¶3} At this hearing, Schroeder requested the court to award retroactive child

support from the date of CN’s birth in December of 2012. Tr. 10. Niese, however,

was only willing to pay child support retroactive to the date that the complaint was

filed. Tr. 11. The court heard arguments from both parties on this matter. Id.

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Schroeder testified as to the nature of her past relationship with Niese.      In her

testimony, she explained that she told Niese about their child early in her pregnancy,

notified him of CN’s birth on the date of delivery, and, at the time she became

pregnant, expected Niese to be involved in CN’s upbringing. Tr. 14, 19. Schroeder

testified that she and Niese signed a lease for an apartment in anticipation of living

together. Tr. 17-18. However, she admitted that she had Niese sign as an occupant

not as a lessee because she “was trying to protect [herself]…if he was a lessee there

was no way [she] could remove him from the property.” Tr. 19. Ex. A, B. In the

end, neither party moved into the apartment. Tr. 19. She also admitted that Niese

had periodically given her sums of money with the amounts ranging from $40 to

$400. Tr. 24.

       {¶4} The defense argued that the pleadings did not request retroactive

support from the date of birth and, therefore, the effective date of the child support

should be the date Schroeder filed the complaint. Tr. 11. Niese took the stand and

testified that he did tell Schroeder during her pregnancy that he was going to take

care of her and CN. Tr. 32. Niese also asserted that he regularly paid Schroeder

$500 per month after CN was born and would occasionally give her a $1,000

payment for months with holidays. Tr. 27. However, he made these payments only

in cash and did not keep a record or take a receipt from Schroeder for these

payments. Tr. 29.

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       {¶5} On July 12, 2016, the court issued a final judgment in which it ordered

Niese to reimburse Schroeder for CN’s past medical expenses and set October 8,

2015, as the effective date for retroactive child support. Doc. 18. On appeal,

Schroeder raises one assignment of error.

       The trial court abused its discretion by failing to order child
       support to the mother of the child retroactive to the date of birth
       of the child in the paternity action where the father failed to
       affirmatively establish the circumstances that would relieve him
       of his obligation to pay support from the period of time prior to
       the commencement of the paternity action.

       {¶6} The sole assignment of error argues that the trial court erred by

declining Schroeder’s request for retroactive child support to the date of birth. R.C.

3111.13(F)(2) places the issue of retroactive child support within the discretion of

the trial court:

       When a court determines whether to require a parent to pay an
       amount for that parent's failure to support a child prior to the
       date the court issues an order requiring that parent to pay an
       amount for the current support of that child, it shall consider all
       relevant factors, including, but not limited to, any monetary
       contribution either parent of the child made to the support of the
       child prior to the court issuing the order requiring the parent to
       pay an amount for the current support of the child.

R.C. 3111.13(F)(2). “[T]his statute does not institute a per se rule that requires or

disallows awards of retroactive child support.” Evans v. Richardson, 10th Dist.

Franklin No. 01AP-1328, 2002-Ohio-3555, ¶12.



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Case No. 12-16-05


        {¶7} “We review child support matters under an abuse of discretion

standard.” Hay v. Shafer, 3d Dist. Mercer No. 10-10-10, 2010-Ohio-4811, ¶ 25,

citing Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). “An abuse of

discretion is more than an error of judgment; rather, it implies that the trial court's

decision was unreasonable, arbitrary, or capricious.” Heilman v. Heilman, 3d Dist.

Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 14. “When applying the abuse of discretion

standard of review, this court is not free merely to substitute its judgment for that of

the trial court.” Kreitzer v. Anderson, 157 Ohio App.3d 434, 2004-Ohio-3024, 811

N.E.2d 607, ¶ 16 (3d Dist.).

        {¶8} In her appeal, Schroeder claims that the trial court inappropriately

departed from the “general rule, in a paternity action, [that] child support should be

awarded from the birthdate of the child.” Appellant’s Brief, 7. Schroeder is under

the impression that Myers v. Moschella, 112 Ohio App.3d 75, 677 N.E.2d 1243 (1st

Dist.1996) supports this general rule. Although Myers states “the [father’s] support

obligation commences at birth,” it did not require that formal child support be

ordered retroactively to the date of birth. Id. at 78, quoting Baugh v. Carver, 3 Ohio

App.3d 139, 140, 444 N.E.2d 58, (1st Dist.1981).1 In fact, the appeals court in



1
  Both the Myers and the Baugh decisions were handed down under a prior version of R.C. 3111.17 that has
since been revised. Courts have nonetheless used the Baugh decision to evaluate child support determinations
made under R.C. 3111.13. See Evans v. Richardson, 10th Dist. Franklin No. 01AP-1328, 2002-Ohio-3555,
¶12.
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Case No. 12-16-05


Myers affirmed the trial court’s decision to decline an award of retroactive child

support from the date of the child’s birth and to refuse to order the father to

reimburse the plaintiff for any of the child’s past medical expenses. Myers at 78.

       {¶9} The judgment entry shows that the trial court, in coming to its decision,

“consider[ed] all relevant factors” presented by the parties as was required by law.

R.C. 3111.13(F)(2). First, the court found that Niese did make payments of support

prior to the initiation of this action. Doc. 18. While the amounts and regularity of

the payments were in dispute, the court presumed the support was generally

satisfactory as Schroeder did not file an action against Niese for almost three years.

Id. Second, the court found that Schroeder and Niese had agreed to live together

in an apartment. Id. However, Schroeder signed this lease without Niese. Id. The

court reasoned that these facts demonstrated that Schroeder had reservations about

fully trusting Niese’s promises of full support. The fact that neither of them moved

into the apartment shows that Schroeder was aware, prior to the birth of CN, that

Niese was likely to fall short of his previous representations. Id. Finally, the trial

court found that Schroeder did not show that she had relied upon Niese’s statements.

Id. All of these findings were supported by competent, credible evidence in the

record. Cummins v. Minster, 3d Dist. Auglaize No. 2-14-15, 2015-Ohio-4129, 43

N.E.3d 902, ¶ 16, quoting Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 696

N.E.2d 575 (1998).

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Case No. 12-16-05


       {¶10} Based on these findings, the trial court ordered Niese to reimburse

Schroeder for all the medical and birth expenses incurred from CN’s birth to the

present and to pay retroactive child support from the date of filing. Doc. 18. This

award amounts to $8,380.33 in medical expenses prior to the addition of any birth

expenses. Id. It also amounts to $500.00 per month in arrearage payments for

retroactive child support from the date this action was filed. Id. Contrary to

Schroeder’s assertions, the judgment entry that the trial court issued acknowledged

the duty of Niese to support CN in some form from the time of CN’s birth. The

judgment entry also shows the trial court explained the findings and reasoning that

guided the judge, establishing his decision was neither arbitrary nor unreasonable.

       {¶11} Schroeder also asserts that it is an abuse of discretion to decline to

award retroactive child support from the child’s date of birth “absent an affirmative

demonstration by the obligor of circumstances which would relief [sic] him of that

obligation.” To support this argument, Schroeder cites Baugh v. Carver, supra.

However, Baugh does not advance her argument when quoted in full.

       Where damages for support payments for the period from the
       date of the child's birth to the date of adjudication are prayed for
       and proved, as here, it is an abuse of discretion for the court to
       make no award of child support for that period in the absence of
       an affirmative demonstration of some circumstance which ought
       reasonably to relieve the father of this obligation and the child of
       this entitlement.



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Baugh at 140-141. For Niese to be required to make an affirmative demonstration,

Schroeder would first need to prove damages. See Shockey v. Blackburn, 12th Dist.

Warren No. CA98-07-085, 1999 WL 326174 (May 17, 1999). The record does not

show that she carried this burden.

       {¶12} Further, under the Baugh analysis, courts have held that

“[d]emonstrating that a father voluntarily provided support prior to a child support

order, and that the child’s financial needs were met during that pre-order period, can

be sufficient evidence to relieve a father of retroactive child support.” Evans, supra

at ¶ 16. Both parties agree that Niese voluntarily made payments of child support.

Doc. 18. While the parties dispute whether this support was adequate, the trial court

found the fact that Schroeder did not initiate an action for a child support order until

CN was nearly three to be evidence that the support was generally adequate. Id.

Thus, even when taking the Myers and Baugh decisions into consideration, the trial

court’s determination was not an abuse of discretion.

       While “[u]nder some circumstances, a trial court may abuse its discretion by

not ordering child support payments from the birth of the child,” we do not find that

to be the case here. Hammon By and Through Hammon v. Hammon, 3d Dist. Van

Wert No. 15-90-14, 1991 WL 53747 (April 12, 1991), citing Baugh v. Carver, 3

Ohio App.3d 139, 444 N.E.2d 58 (1st Dist.1981). Ohio law expressly gives the trial

court the discretion to determine whether the circumstances of a particular case

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Case No. 12-16-05


warrant child support to be made retroactive to the date of birth. In its discretion,

the trial court determined this situation did not warrant such an award. For these

reasons, we overrule Schroeder’s sole assignment of error.

       {¶13} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Juvenile Division of the Putnam County

Court of Common Pleas is affirmed.

                                                                Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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