Dunlop v. Ohio Dept. of Job & Family Servs. , 2019 Ohio 3632 ( 2019 )

[Cite as Dunlop v. Ohio Dept. of Job & Family Servs., 2019-Ohio-3632.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Matthew J. Dunlop, :
Plaintiff-Appellant, :
No. 19AP-58
v. : (C.P.C. No. 12CV-6052)
Ohio Department of Job and : (REGULAR CALENDAR)
Family Services,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on September 10, 2019
On brief: The Tyack Law Firm Co., L.P.A., Jonathan T.
Tyack, and Holly B. Cline, for appellant. Argued: Holly B.
Cline.
On brief: Carpenter Lipps & Leland LLP, Michael H.
Carpenter, and Jennifer A.L. Battle, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Matthew J. Dunlop, appeals from the judgment of the
Franklin County Court of Common Pleas denying appellant's motion for summary
judgment and granting the motion for summary judgment filed by defendant-appellee,
Ohio Department of Job and Family Services ("ODJFS"). For the following reasons, we
affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This is the third appeal before this court arising from appellant's complaint
against ODJFS in regard to child support payments that were withheld by his employer in
No. 19AP-58 2
an amount in excess of the wage garnishment order. We have previously described the
pertinent background facts of this case as follows:
In May 2011, appellant sued ODJFS in the Court of Claims of
Ohio with a complaint nearly identical to the one here. The
Court of Claims dismissed the complaint for lack of
jurisdiction, finding appellant's claims equitable in nature.
This court affirmed that decision in Dunlop v. Ohio Dept. of
Job & Family Servs., 10th Dist. No. 11AP-929, 2012-Ohio-
1378 ["Dunlop I"], and the Supreme Court of Ohio declined to
take further review of the matter.
Just after filing his complaint in the Court of Claims, appellant
filed the instant class action complaint, on behalf of himself
and similarly situated individuals he estimates to number in
excess of 100,000, alleging claims of conversion, equitable
restitution, constructive trust, breach of fiduciary duty and
wrongful disposition against ODJFS and 300 John Doe
defendants, and seeking actual money damages, equitable
restitution and/or disgorgement of improperly obtained
funds, a "constructive trust over all funds improperly obtained
by ODJFS," injunction, and declaratory relief. (Compl. at 3.)
Appellant alleges that each John Doe defendant "is a joint
venture, partner, subsidiary, parent, agent, representative,
franchisee or alter ego" of ODJFS, has a "unity of interest"
with ODJFS, and "is legally, equitably or otherwise
responsible in some manner for the damages" alleged.
(Compl. at 3, 4.)
The complaint alleges that ODJFS knowingly collects more
money than he, and persons like him, have been ordered to
pay in child support and then passes that money on to others
(such as ex-spouses and/or the federal government in certain
public assistance cases) and/or retains the over-collected
funds. The complaint states under current ODJFS policies,
overpaid child support may not be recouped while an active
child support order is in place and that greater than 114,000
open child support accounts with ODJFS show a credit
balance. Appellant alleges that Ohio's system of recoupment
does not comport with federal regulations requiring prompt
refund of amounts improperly withheld.
Specific to his personal situation, appellant alleges in his
complaint that after his divorce in 2007, the court of common
pleas ordered him to pay $691.72 per month beginning
January 1, 2008. He alleges that the Franklin County Child
Support Enforcement Agency ("CSEA") sent his employer a
garnishment order that specified the amount of the monthly
No. 19AP-58 3
support, provided a calculation to determine how much
money should be withheld from his compensation based on
the company's pay cycle, and included a handwritten
withholding amount on the instructions. On later suspecting
that he was paying in excess of the order and contacting the
CSEA, appellant alleges that the CSEA told him he was
building a credit balance as a result of his employer's error in
setting up the garnishment and that he would have to wait
until the child support order was near expiration to recoup the
overpayment. When appellant then spoke to his employer
about the issue, appellant alleges that his employer told him
the garnishment amount was based on the order from the
CSEA and that they could not take instructions from
appellant. Appellant alleges that he continues to carry a credit
balance.
In the complaint, under his claim for conversion, appellant
asserts that ODJFS had no legal right to collect funds in excess
of the court-ordered child support payment or charge
percentage fees, if any, thereon without his consent. To
appellant, he is effectively permanently deprived of his use of
those funds and, "even to the extent that there is a mechanism
to recoup funds at the conclusion of the child support term,
no interest is paid on those funds." (Compl. at 15.) As such,
appellant asks for actual damages for each class member into
a fluid recovery fund, plus interest. Under his claim for
equitable restitution, appellant alleges that ODJFS knowingly
received and held or distributed money above the ordered
child support belonging to him and that this constitutes a
wrongful action. As such, appellant asks for restitution of all
funds collected over the ordered child support to each class
member into a fluid recovery fund, plus interest.
On June 25, 2012, ODJFS filed a motion to dismiss for failure
to state a claim, pursuant to Civ.R. 12(B)(6), which the trial
court initially denied on April 15, 2014. On April 20, 2016,
ODJFS asked the trial court to reconsider its decision based
on new authority, Cullinan v. Ohio Dept. of Job & Family
Servs., 10th Dist. No. 15AP-390, 2016-Ohio-1083. Appellant
filed a memorandum contra and ODJFS replied.
(Footnote omitted.) Dunlop v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-550,
2017-Ohio-5531, ¶ 2-7 ("Dunlop II"). On July 13, 2016, the trial court granted ODJFS's
motion for reconsideration and dismissed the complaint pursuant to Civ.R. 12(B)(6).
Appellant appealed, and in Dunlop II, we concluded that "[c]onsidering our limited
standard of review and the distinctions between this appeal and Cullinan [v. Ohio Dept. of
No. 19AP-58 4
Job & Family Servs., 10th Dist. No. 15AP-390, 2016-Ohio-1083], we agree with appellant
that the trial court erred in determining appellant's complaint was not sufficient to state a
claim for wrongful collection or retention of funds to survive ODJFS's Civ.R. 12(B)(6)
motion to dismiss." Id. at ¶ 21. We noted that "[w]hether appellant will be able to establish
his allegations as facts on the record and then demonstrate those facts amount to wrongful
conduct to support his claim [was] beyond the scope of our review." Id. at ¶ 20.
{¶ 3} On remand, the parties each filed motions for summary judgment on all
claims. On December 31, 2018, the trial court granted ODJFS's motion for summary
judgment and denied appellant's motion for summary judgment. In doing so, the trial court
found that similarly to Cullinan, ODJFS did not act wrongfully in receiving and remitting
appellant's child support payments, and, therefore, appellant could not establish a claim
for equitable restitution. The trial court emphasized the evidence showed, and the parties
agreed, that appellant's employer did not comply with the court order and is solely
responsible for the excess withholding and that appellant failed to point to any rule or law
that requires ODJFS to correct a withholding in the manner argued by appellant. Finally,
the trial court noted appellant's constitutional claims were not raised in his complaint, and,
regardless, his attempt to appeal the constitutional issues posed only conclusory assertions
unsupported by legal authority.
{¶ 4} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant assigns the following as trial court error:
[1.] The Court of Common Pleas does not have original
subject matter jurisdiction over Plaintiff-Appellant Matthew
Dunlop's claims against Defendant-Appellee Ohio
Department of Job and Family Services. Thus, the trial court's
ruling on the parties' summary judgment motions are void.
[2.] Assuming arguendo the common pleas court has subject
matter jurisdiction over Mr. Dunlop's claims, the trial court
erred by denying Plaintiff-Appellant's Motion for Summary
Judgment.
[3.] Assuming arguendo the common pleas court has subject
matter jurisdiction over Mr. Dunlop's claims, the trial court
erred by granting Defendant-Appellee's Motion for Summary
Judgment.
No. 19AP-58 5
III. STANDARD OF REVIEW
{¶ 6} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the
following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion,
that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary judgment on grounds that the
non-moving party cannot prove its case, the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,
2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Dresher at 293.
{¶ 7} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the same
standard as the trial court and conducts an independent review, without deference to the
trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One
Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
IV. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 8} In his first assignment of error, appellant contends the trial court lacked
subject-matter jurisdiction over his claims against ODJFS and, therefore, erred in ruling on
the parties' motions for summary judgment. Because res judicata bars relitigation of this
issue within the procedural posture of this case, we find appellant's assignment of error is
without merit.
{¶ 9} To support his assignment of error, appellant specifically argues his claims
include a legal claim, and, therefore, the trial court lacked jurisdiction based on the
Supreme Court of Ohio ruling in Cirino v. Ohio Bur. of Workers' Comp., 153 Ohio St.3d
No. 19AP-58 6
333, 2018-Ohio-2665 (O'Donnell, J., dissenting), which was decided five months prior to
the trial court's decision on summary judgment.1 As a result, appellant maintains the
judgment of the trial court is void, res judicata does not apply since subject-matter
jurisdiction may be raised at any time, the law of the case doctrine does not apply since an
intervening court decision (Cirino) constitutes an exception to the doctrine, and the case
should have been dismissed to avoid injustice.
{¶ 10} ODJFS responds that appellant is barred from relitigating jurisdiction by the
doctrine of res judicata since the question of whether his claims belonged in the Court of
Claims or the court of common pleas was already litigated in this case by courts of
competent jurisdiction. ODJFS asserts that although subject-matter jurisdiction may be
raised at any time, once it is litigated, such determination is subject to res judicata and a
change in decisional law does not bar the application of the doctrine of res judicata.
{¶ 11} Collateral estoppel, "an aspect of res judicata," prohibits "relitigation, in a
second action, of an issue that has been actually and necessarily litigated and determined
in a prior action." (Internal citations omitted.) Lowe's Home Ctr., Inc. v. Washington Cty.
Bd. of Revision, 154 Ohio St.3d 463, 2018-Ohio-1974, ¶ 33. Generally, "[t]he bar of res
judicata does not apply where the prior action was void for lack of subject matter
jurisdiction." Bakhtiar v. Saghafi, 8th Dist. No. 106587, 2018-Ohio-3796, ¶ 21,
discretionary appeal not allowed by 2019-Ohio-173.
{¶ 12} However, "[r]es judicata applies to bar relitigation of the issue of subject-
matter jurisdiction." (Emphasis added.) In re A.R., 10th Dist. No. 16AP-482, 2017-Ohio-
1575, ¶ 10. See Bakhtiar at ¶ 21 ("[W]here the question of subject matter jurisdiction has
been fully litigated, res judicata applies to the final determination and it is not subject to
1 Cirino, decided July 10, 2018, involved a Bureau of Workers’ Compensation ("BWC") contract with Chase
Bank, whereby BWC agreed to deposit claimants' workers' compensation benefits into a Chase account, and
Chase agreed to provide claimants with access to their benefits. Chase deducted fees from the claimants'
accounts for certain transactions and a class action suit followed seeking to compel BWC to compensate them
for the fees charged by Chase. The 6-1 majority in Cirino found the Court of Claims of Ohio had jurisdiction
over the complaint rather than the court of common pleas, although the majority was split between a three-
justice lead opinion and a three-justice concurrence. The lead opinion determined the complaint sought what
was essentially compensatory damages for a loss caused by a third party (Chase) and not a correction of the
BWC's unjust enrichment through specific, identifiable funds. The concurrence determined that by "focusing
on the locus of the specific funds to which [the appellant] claims entitlement" rather than the characterization
of the claim, the complaint sought legal restitution. Id. at ¶ 37. The dissent believed the appellant set forth
claims for equitable restitution, falling within the jurisdiction of the court of common pleas. See also Vance
v. State, 10th Dist. No. 18AP-484, 2019-Ohio-1027, ¶ 13-37.
No. 19AP-58 7
collateral attack."). In A.R., this court noted that "[a]lthough it is a correct statement of law
that subject-matter jurisdiction may be raised at any time, * * * once a jurisdictional issue
has been fully litigated and determined by a court that has authority to pass upon the issue,
such determination is res judicata in a collateral action and can only be attacked directly by
appeal." Id. at ¶ 10, citing Bell v. Nichols, 10th Dist. No. 10AP-1036, 2013-Ohio-2559, ¶ 23;
Squires v. Squires, 12 Ohio App.3d 138 (12th Dist.1983).
{¶ 13} Furthermore, "[g]enerally, a change in decisional law which might arguably
reverse the outcome in a prior civil action does not bar the application of the doctrine of res
judicata. Since the doctrine of res judicata serves important public and private interests,
exceptions to the doctrine's application should be narrowly construed." (Emphasis sic.)
Natl. Amusements v. Springdale, 53 Ohio St.3d 60 (1990), syllabus. "To hold otherwise
would enable any unsuccessful litigant to attempt to reopen and relitigate a prior adverse
final judgment simply because there has been a change in controlling case law. Such a
result would undermine the stability of final judgments and, in effect, render their
enforceability conditional upon there being no change in the law." (Internal quotations
omitted.) Id. at 63. A "few existing exceptions" have been recognized as an exception to
the doctrine of res judicata based on a change in decisional law, such as "a major change in
constitutional principles" as applied to certain specific areas of law. Id. However, the Natl.
Amusements court warned "courts should be slow to broaden the few existing exceptions"
and declined in that case to exempt from res judicata an allegedly "fundamental change in
the controlling law" brought about by a new appellate decision. Id. at 62-63.
{¶ 14} Here, this court had authority in Dunlop I to pass on whether the Court of
Claims erred in finding it lacked jurisdiction over appellant's claims. Appellant appealed
our decision, and the Supreme Court declined jurisdictional review. Appellant does not
dispute the present complaint contains essentially the same claims and the same parties as
the case he brought in the Court of Claims. Pursuant to A.R., once a jurisdictional issue has
been fully litigated and determined by a court that has authority to pass on the issue, such
determination is res judicata in a collateral action. Moreover, appellant has not persuaded
us Cirino presents "a change in decisional law" of the extraordinary sort described by Natl.
Amusements to avoid the general rule that decisional law changes—even those that
arguably reverse the outcome in a prior civil action—do not bar the application of the
No. 19AP-58 8
doctrine of res judicata in this case. Id. at syllabus. Therefore, considering all the above,
we find res judicata applies to bar appellant from attempting to relitigate subject-matter
jurisdiction. A.R.
{¶ 15} Accordingly, appellant's first assignment of error is overruled.
B. Appellant's Third Assignment of Error
{¶ 16} For clarity of analysis, we will address appellant's remaining two assignments
of error, pertaining to the merits of summary judgment, out of order. In his third
assignment of error, appellant contends the trial court erred in granting summary
judgment in favor of ODJFS. We disagree.
{¶ 17} To support his assignment of error, appellant first cites to the concurring
opinion in Cirino, 2018-Ohio-2665, and Montanile v. Bd. of Trustees of Natl. Elevator
Industry Health Benefit Plan, 136 S.Ct. 651 (2016), in arguing he was not required to
demonstrate ODJFS acted wrongfully because he sought legal rather than equitable relief.
In essence, appellant argues the focus should not have been on ODJFS's "wrongfully
obtained gain" but, rather, appellant's "loss at [ODJFS's] hands." (Appellant's Brief at 45.)
{¶ 18} Appellant's argument is based on the characterization of the claim as seeking
legal relief. In Dunlop I, this court addressed this issue and disagreed with appellant. Id.
at ¶ 16 ("It is clear that, in the present case, appellant is seeking recovery of specific monies
and not compensation * * *. Appellant's claim in his complaint is that he seeks
reimbursement of funds that ODJFS allegedly wrongly collected for child support. * * * As
made clear by Santos [v. Ohio Bur. of Workers' Comp., 101 Ohio St.3d 74, 2004-Ohio-28]
and Interim HealthCare [of Columbus, Inc. v. Dept. of Adm. Servs., 10th Dist. No. 07AP-
747, 2008-Ohio-2286], this type of claim is one for equitable restitution."). The Supreme
Court declined jurisdictional review of the matter, and this case proceeded as a Santos
equitable restitution claim in the court of common pleas, through the Civ.R. 12(B)(6) appeal
in Dunlop II where appellant specifically argued "the Complaint * * * sufficiently alleges a
claim for wrongful collection under Santos"2 and through remand in the court of common
pleas. Dunlop II, 2017-Ohio-5531, at ¶ 13. We find that to the extent appellant is attempting
2 While still maintaining he has a conversion claim against ODJFS, in his motion for summary judgment,
which was filed prior to Cirino, he "recognize[d] that, pursuant to Santos, this court is required to view
[appellant's] claim as an equitable claim of wrongful collection and/or retention." (Feb. 23, 2018 Mot. for
Summ. Jgmt. at 12, fn. 3.)
No. 19AP-58 9
to relitigate this matter, the doctrine of res judicata bars its review. Lowe's Home Ctr.,
2018-Ohio-1974, at ¶ 33. Regardless, we note a legal claim for conversion likewise
incorporates the "wrongful" exercise of dominion over property. Dunlop I at ¶ 8.
{¶ 19} To this end, appellant next argues, assuming arguendo appellant was
required to demonstrate ODJFS acted wrongfully in receiving and remitting his child
support payments, at minimum, a genuine issue of material fact exists as to whether
ODJFS's conduct was "wrongful." (Appellant's Brief at 46.) Specifically, appellant argues:
ODJFS's "knowledge of the over-collection issue * * * and four-year failure to correct said
issue when ODJFS had a duty to collect and remit the correct court-ordered amount was
wrongful"; and ODJFS's "excessive garnishment" which "took money from [appellant]
without statutory or regulatory authority" constituted wrongful collection and/or retention
of funds under Santos.3 (Emphasis sic.) (Appellant's Brief at 46, 47.) Appellant also
mentions a government entity may not take another's property without due process of law
and discusses how this concept spans criminal law, tax law, intellectual property law,
consumer law, and the applicable refund provisions therein.4
{¶ 20} ODJFS counters that appellant cannot establish, under any theory, ODJFS
engaged in a wrongful act. According to ODJFS, all the evidence shows ODJFS acted as
statutorily mandated, and the evidence demonstrates someone other than ODJFS (or
Franklin County Child Support Enforcement Agency ("FCCSEA")) was responsible for the
initial error in appellant's child support withholding. ODJFS contends that nothing in the
statutory framework prevents ODJFS from accepting payments in excess of the court-
ordered child support amount or imposes a duty on ODJFS to investigate whether an
obligor's overpayments were intentional or not and that disbursing the payments was
3 Although appellant initially mentions in his appellate brief facts that either a state employee or appellant's
employer made a handwritten, incorrect pay calculation on the order, he does not argue ODJFS acted
wrongfully by providing an incorrect calculation to his employer. We further find such a contention—that
ODJFS or Franklin County Child Support Enforcement Agency ("FCCSEA") provided the calculation to
appellant's employer—to be unsupported by the evidence. Appellant testified he had no knowledge regarding
who provided the incorrect calculation on the order, and unrebutted testimony from FCCSEA showed that the
miscalculation could not have been performed by ODJFS or FCCSEA since it did not know and was not
provided pay cycle information.
4 We note the trial court found appellant did not raise the constitutional issues in his complaint and,
regardless, failed to properly support the arguments. Appellant does not assign the trial court's finding on
this issue as error or otherwise provide an argument as to why these issues were properly raised and argued.
We agree with the trial court that these issues were not raised and were argued in a conclusory manner, and
we decline to address the merits of such issues here. App.R. 16(A)(7).
No. 19AP-58 10
statutorily mandated. ODJFS emphasizes appellant can receive the overpaid amount by
following a correct legal process, including impoundment, recoupment, private settlement,
or a court modification of his child support order. In support of its argument, ODJFS cites
to this court's opinion in Cullinan, 2016-Ohio-1083. Lastly, ODJFS argues in the
alternative that it met its burden demonstrating summary judgment is appropriate on
additional grounds, including alternative defenses, and that appellant offered no evidence
to meet his reciprocal burden.
{¶ 21} We agree with ODJFS that, similar to Cullinan, the lack of wrongful conduct
on the part of ODJFS supports judgment in its favor as a matter of law. In Cullinan, a
plaintiff who double paid child support each month by mistakenly continuing to issue
personal checks despite the payment already being withheld from his income filed a
complaint against ODJFS similar to the case at hand. There, Cullinan asserted ODJFS "has
in the past, and continues to wrongfully exercise dominion over Plaintiff's personal
property, namely that portion of Plaintiff's funds over collected above the court ordered
child support, to the exclusion of the rights of Plaintiff" and claimed ODJFS "had absolutely
no legal authority to collect double child support payments from 2004 through the first half
of 2010, nor did [ODJFS] have the authority to charge an extra 2% on that amount as a
processing charge." Id. at ¶ 16. Cullinan did not argue that ODJFS acted improperly by
issuing a wage withholding order. Instead, Cullinan contended that "[n]otwithstanding the
awareness by ODJFS that the double payments were being collected, ODJFS took no action
to halt the double payments, impound the double payments or otherwise return the double
payments to [appellant]." Id. at ¶ 17.
{¶ 22} In rejecting Cullinan's argument, we emphasized that R.C. 3121.50 requires
" '[o]n receipt of any amount forwarded from a payor,' ODJFS must distribute such
payments within 'two business days of its receipt,' " and Cullinan failed to demonstrate that
ODJFS is permitted or required to impound funds "whenever an obligor overpays his or
her support obligation." (Emphasis sic.) Id. at ¶ 23, quoting R.C. 3121.50. We discussed
the processes of recovering overpayments on commencement of termination of the child
support order provided by the Ohio Administrative Code, by a court order, or through a
private agreement between the parties. Id. at ¶ 20-25.
No. 19AP-58 11
{¶ 23} In this case, it is undisputed the child support order itself was correct, and
appellant's employer ultimately withheld an amount from appellant's paycheck based on a
24-week, rather than 26-week, pay cycle. No record evidence shows ODJFS was
responsible for the calculation error. The error led the employer to withhold $345.86 per
paycheck, instead of the court-ordered $319.26 amount, from January 2008 until April
2012. The amount withheld from appellant's paycheck was disbursed to appellant's ex-
wife, less a processing fee that was calculated based on the correct court-ordered amount.
Appellant contends he contacted FCCSEA about the error in April and May 2008 and also
contacted a human resources manager at his place of employment, who told him she was
unable to change the withholding amount. The error in the withholding amount was
corrected in April 2012 after an FCCSEA officer contacted appellant's employer and
instructed a payroll employee as to how to calculate the correct amount based on the court
order. As a result of the error in the withholding amount in his paychecks, appellant has a
"futures balance" of $3,603.75 in child support. (Hills Dep. at 32.)
{¶ 24} Here, like in Cullinan, appellant fails to cite to any statute or code provision
that demonstrates ODJFS had a duty to refuse to collect and remit the overpayments.
Contrary to appellant's contentions, R.C. 3121.50 requires " '[o]n receipt of any amount
forwarded from a payor,' ODJFS must distribute such payments within 'two business days
of its receipt.' " (Emphasis sic.) Id. at ¶ 23, quoting R.C. 3121.50. The administrative
scheme treats child support collected in excess of the current obligation as "futures" and
provides processes to recover overpaid funds, such as recoupment, impoundment, and
state tax refund offsets within proceedings to terminate the support order. Ohio Adm.Code
5101:12-80-10(B)(8), 5101:12-80-05.6(A)(2) and (B), 5101:12-60-50.1, 5101:12-50-20.3;
Cullinan at ¶ 19-25. ODJFS also provided evidence that an obligor can seek an order
modification from the court to address a futures balance. (Hills Dep. at 83-84.) See also
Cullinan at ¶ 25. Furthermore, we note that under Ohio Adm.Code 5101:12-80-05.6(C),
when an erroneous payment is the result of a remitter error, a definition which includes
"any entity or individual (e.g., obligor, obligee, employer, financial institution, third party)"
that submits a payment to the child support agency, the remitter is responsible for resolving
the error. Ohio Adm.Code 5101:12-80-05(C)(10).
No. 19AP-58 12
{¶ 25} Considering all the above, we find on independent review and viewing the
evidence most strongly in favor of appellant that no evidence shows ODJFS acted in
violation of a duty or otherwise acted wrongfully in collecting and remitting the child
support payments in this case. Therefore, we find no genuine issue of material fact remains
to be litigated, and ODJFS is entitled to judgment as a matter of law. Cullinan at ¶ 27, 30;
Harless, 54 Ohio St.2d at 66. As a result, we find the trial court did not err in granting
summary judgment in favor of ODJFS. Cullinan at ¶ 30.
{¶ 26} Accordingly, appellant's third assignment of error is overruled.
C. Appellant's Second Assignment of Error
{¶ 27} In his second assignment of error, appellant contends the trial court erred in
denying his motion for summary judgment. We disagree.
{¶ 28} Appellant argues the facts uncontrovertibly establish that ODJFS collected
an amount in excess of the court-ordered child support amount from appellant's paycheck
that it never had a right to take and transferred those funds to his ex-wife over four years.
According to appellant, this establishes ODJFS converted funds excessively garnished from
his wages without permission or consent. Appellant additionally contends ODJFS's
collection of funds in an amount exceeding the order was wrongful under Santos, 2004-
Ohio-28.
{¶ 29} We initially note appellant has not provided authority that collecting
payments in excess of the court-ordered child support amount and providing those funds
to the obligee is a wrongful act under the statutory and administrative scheme. Therefore,
appellant has not met his burden of demonstrating error on appeal. State v. Sims, 10th
Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant bears the
burden of affirmatively demonstrating error on appeal); State v. Hubbard, 10th Dist. No.
11AP-945, 2013-Ohio-2735, ¶ 34, citing App.R. 16(A)(7) and 12(A)(2) ("An appellant must
support their assignments of error with an argument, which includes citation to legal
authority."); State v. Smith, 9th Dist. No. 15AP0001n, 2017-Ohio-359, ¶ 22 (noting it is not
the duty of an appellate court to create an argument on an appellant's behalf).
{¶ 30} Regardless, appellant's assignment of error lacks merit. As provided in
addressing the third assignment of error, ODJFS is required to distribute "any amount"
within two business days of its receipt. Cullinan at ¶ 23; R.C. 3121.50. Under Ohio law,
No. 19AP-58 13
payments in excess of the court-ordered child support payment amount are treated as
"future" payments, subject to recovery at a later time. (Hills Dep. at 83-84.) Ohio
Adm.Code 5101:12-80-10(B)(8), 5101:12-80-05.6(A)(2) and (B), 5101:12-60-50.1, 5101:12-
50-20.3; Cullinan at ¶ 19-25.
{¶ 31} Considering all the above, we find appellant did not meet his burden in
moving for summary judgment pursuant to Civ.R. 56(C). Harless at 66. As a result, we
find the trial court did not err in denying summary judgment in favor of appellant.
{¶ 32} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
{¶ 33} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and DORRIAN, J., concur.
_____________