New Jersey v. Morales , 35 Ohio App. 2d 56 ( 1973 )

While I concur in the judgment, I feel some additional comments are germane.

Contrary to some indication in the record, including the style of the case, the complainant herein is Consuelo Morales not the state of New Jersey. While, pursuant to R. C. 3115.07, a state may institute a similar action "for the purpose of securing reimbursement for support furnished and of obtaining continuing support," the state of New Jersey has not done so in this action.

The obligee in this action is Consuelo, not the state of New Jersey or the minor children on whose behalf the action could have been brought pursuant to R. C. 3115.11. Subsequent to the decision in Porter v. Porter (1971), 25 Ohio St.2d 123, the legislature amended R. C. 3115.21 to provide:

"* * * The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court."

This is a recognition and adoption of the Porter doctrine, but with a limitation. Thus, defendant's duty to support his children is unaffected by Consuelo's interference with his right of custody. However, Consuelo, as an obligee, is not permitted to require defendant to pay her for the support of the children while she interferes with his right of custody.

There is no indication that Consuelo is unable to support the minor children. She apparently is doing so. The source of the funds she uses for such support is not important. While the record indicates that in January 1971, she was unemployed and had no source of income except "public assistance," there is no presumption that that continued to be the situation. There is no finding to that effect in the certificate of the New Jersey court. Likewise, there is no indication whether the support payment, if made by defendant would be in lieu of, or in addition to, the "public assistance" if it has continued. Furthermore, the record is devoid of any indication of the assets of Consuelo, or the absence thereof.

Under these circumstances, the rule of Porter is applicable. The state of New Jersey is required to give full faith and credit to the Ohio decree granting custody of the minor children to defendant. We assume New Jersey courts will do so if the matter is brought to their attention in the proper manner. It would appear from the record that the New Jersey court was unaware of the Ohio decree.