In Re Estate of Antkowiak , 95 Ohio App. 3d 546 ( 1994 )

I dissent from the finding that an emancipated child has the right to recover child support arrearages collected by the child support agency after the death of the custodial parent and that such funds are not assets of the deceased parent's estate, thereby reversing the judgment of the trial court.

The trial court relied on the Miller decision, where the custodial mother of an adult child had a restitution obligation in a criminal case. That court ordered child support arrearage funds collected by the Jackson County Child Support Enforcement Agency to be applied to the restitution obligation of the convicted custodial parent. The majority, noting that the adult child was not a party, states that the Jackson County Court of Appeals specifically declined to hold that the same result would have occurred if the adult child presented a valid claim. There is nothing in that decision to support that suggestion. As a matter of fact, the custodial mother inMiller wrote to the agency from prison to request that her daughter be made the payee on future child support arrearage checks from the agency. The Fourth District Court of Appeals specifically noted:

"Cindy Lee Miller then wrote a letter to the trial court, objecting to its November 30, 1990 order, and claiming that the arrearage checks were necessary to support her. On January 2, 1991, following a review hearing to address the issue of whether the child support arrearage was an asset owned by the emancipated child, the trial court issued an order which, in effect, affirmed its prior order regarding payments for the child support arrearage." Id., 73 Ohio App.3d at 723,598 N.E.2d at 168.

After considering this issue, that court then proceeded to apply these funds to the restitution obligation of the custodial parent, which arose from the criminal violation of theft in office. It appears that the Miller decision fully supports the trial court's result in the present case. That decision as well as many others cited by the majority does not imply or suggest that an emancipated child could maintain an action for collected child support arrearages whether the custodial parent was living or deceased.

The dissenting opinion in Miller acknowledges that inConnin v. Bailey, supra, and Smith v. Smith, supra, the Ohio Supreme Court utilized a presumption that the custodial parent "made up the missing child support." 73 Ohio App.3d at 726,598 N.E.2d at 171. The death of the custodial parent does not change the enunciated existing presumption of the Ohio Supreme Court and the resulting status of the parties. Here, the trial court's concern for creating a duty for the custodial parent to account for the use of funds earmarked for the child is valid. The trial court's decision does not open the door to injustice, but rather discourages litigation in an area that is clearly not desirable and may adversely affect family relationships. I would, therefore, affirm the trial court in this matter.