Polanco v. Polanco

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[Cite as Polanco v. Polanco, 2021-Ohio-1450.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




 ISMELDA SANCHEZ POLANCO,                        :

        Appellee,                                :         CASE NO. CA2020-09-096

                                                 :              OPINION
     - vs -                                                      4/26/2021
                                                 :

 MAXIMO POLANCO,                                 :

        Appellant.                               :




               APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          DOMESTIC RELATIONS DIVISION
                               Case No. DR19121115


Ismelda Sanchez Polanco, 89 Beckett Street, Hamilton, Ohio 45011, pro se

Mark W. Raines, 246 High Street, Hamilton, Ohio 45011 and Mark Conese, 633 High Street,
Suite 102, Hamilton, Ohio 45011, for appellant



        HENDRICKSON, J.

        {¶1}    Appellant, Maximo Polanco ("Father"), appeals from a decision of the Butler

County Court of Common Pleas, Domestic Relations Division, finding that it did not have

jurisdiction to modify or terminate a child-support order issued in New York. For the reasons
                                                                                   Butler CA2020-09-096

expressed below, we reverse the judgment of the trial court and remand the matter for

further proceedings.1

        {¶2}    Father and appellee, Ismelda Sanchez Polanco ("Mother"), are the parents of

two children: Maximo Jr., born July 12, 1998, and Shirley, born March 9, 2001. Mother is

the custodial parent for both children.2 The parties were residents of the state of New York,

and on January 12, 2007, the Family Court of the State of New York, County of Rockland,

established a child-support order in which Father was to pay support for the children to

Mother.

        {¶3}    Subsequently, in 2009, Mother and the children moved to Butler County, Ohio,

and at some point, Father moved to Pasco County, Florida. In September 2019, after all

parties had left New York, Father filed a motion in the Rockland County Family Court for

the State of New York, seeking a modification of the child-support order. However, in

October 2019, Father's motion was dismissed for lack of subject-matter jurisdiction as

neither parent nor the children resided in New York.

        {¶4}    On January 13, 2020, Father filed a motion to register the child-support order

in the Butler County Domestic Relations Court. He also filed a motion to modify child

support, asking that the child-support order be terminated as both children were

emancipated. At the time of filing his motion to register and motion to modify, Maximo Jr.

was 21 years old and Shirley was two months shy of her 19th birthday.

        {¶5}    On June 25, 2020, a magistrate dismissed Father's motions without a hearing,

holding that


1. Pursuant to Loc.R. 6(a), we sua sponte remove this appeal from the accelerated calendar for the purpose
of issuing this opinion.

2. We note that Mother did not file an appellate brief for our consideration in this matter. Pursuant to App.R.
18(C), when an appellee fails to file a brief, "in determining the appeal, the court may accept the appellant's
statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears
to sustain such action."

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                                                                         Butler CA2020-09-096

              [t]his court lacks the authority to modify the existing child support
              obligation, i.e., to terminate the obligation according [to] the laws
              of the State of Ohio, as the statutory termination of the child
              support obligation determined by the Family Court of the State
              of New York, County of Rockland, is a non-modifiable term.

       {¶6}   Father timely objected to the magistrate's decision, contending the decision

had been issued in error as he was "not given the opportunity to present evidence at trial

nor given the ability to cross-examine witnesses and review evidence." A hearing on

Father's objection was held on November 5, 2020. Thereafter, the trial court issued an

opinion overruling Father's objection and adopting the magistrate's decision in full.

       {¶7}   Father appealed, raising the following as his sole assignment of error:

       {¶8}   THE TRIAL COURT ERRED WHEN IT DISMISSED [FATHER'S] MOTION

TO REGISTER A DECREE AND MODIFY/TERMINATE THE SUPPORT ORDER FROM

SAID DECREE WITHOUT A HEARING.

       {¶9}   Father contends the court erred when it determined it was without jurisdiction

over the child-support order, as the requirements of R.C. 3115.611(A)(1) had been met.

Father further contends that once jurisdiction to register an order had been met, the court

should have permitted Father to present evidence relevant to his motion for

modification/termination of the support order before ruling on said motion.

       {¶10} "R.C. 3115.611 governs 'when a registering Ohio tribunal gains jurisdiction to

modify [a child-support] order' issued in another state." Salloum v. Falkowski, 151 Ohio

St.3d 531, 2017-Ohio-8722, ¶ 9, quoting Young v. Rogers, 12th Dist. Butler No. CA2001-

08-183, 2002-Ohio-5135, ¶ 9. "R.C. 3115.611(A) provides two circumstances under which

a court may find that it has the requisite jurisdiction."

Id. The present case

involves

jurisdiction under R.C. 3115.611(A)(1), which provides as follows:

              [U]pon petition a tribunal of this state may modify a child-support
              order issued in another state which is registered in this state if,
              after notice and hearing, the tribunal finds either of the following:

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                                                                                  Butler CA2020-09-096


                (1) That all of the following requirements are met:

                (a) Neither the child, nor the obligee who is an individual, nor
                the obligor resides in the issuing state;

                (b) A petitioner who is a nonresident of this state seeks
                modification; and

                (c) The respondent is subject to the personal jurisdiction of the
                tribunal of this state.

        {¶11} The record reflects that the requirements of R.C. 3115.611(A)(1) have been

met. Neither Father, Mother, nor the children reside in New York, the issuing state. Rather,

the children and Mother reside in Ohio and Father resides in Florida. As Father, the

petitioner-obligor, resides in Pasco County, Florida and Mother, the respondent-obligee,

resides in Butler County, Ohio and is subject to the personal jurisdiction of the Butler County

Domestic Relations Court, the trial court had the requisite jurisdiction.3

        {¶12} In exercising jurisdiction over a child-support order from another state, R.C.

3115.611(C) provides that "[a] tribunal of this state may not modify any aspect of a child-

support order that may not be modified under the law of the issuing state, including the

duration of the obligation of support." (Emphasis added.) Further, "[i]n a proceeding to

modify a child-support order, the law of the state that is determined to have issued the initial

controlling order governs the duration of the obligation of support." R.C. 3115.611(D)

        {¶13} The magistrate's decision, as adopted by the trial court, found that it "lack[ed]

the authority to modify the existing child support obligation, i.e., to terminate the obligation

according [to] the laws of the State of Ohio, as the statutory termination of the child support

obligation determined by the Family Court of the State of New York, County of Rockland, is




3. R.C. 3115.602 sets forth the process for registering a child-support order issued by another state. There
is no indication in the magistrate's decision dismissing Father's motion to register and motion to modify that
Father failed to comply with the requirements of R.C. 3115.602 in seeking to register the order.

                                                    -4-
                                                                       Butler CA2020-09-096

a non-modifiable term." Though the magistrate did not cite to R.C. 3115.611(C) in its

decision, it appears that it relied on this provision in dismissing Father's motion to register

and motion to modify child support. Though the magistrate did not cite to any New York

statute or case, the magistrate nonetheless concluded that the New York child-support

order "is a non-modifiable term."

       {¶14} The express terms of the New York child-support order do not specify an end

date for Father's support obligation. New York Family Court Act §413(1)(a) provides that

"the parents of a child under the age of twenty-one years are chargeable with the support

of such child, and if possessed of sufficient means or able to earn such means, shall be

required to pay for child support a fair and reasonable sum as the court may determine."

(Emphasis added.) As defined by the statute, "child support" means "a sum to be paid

pursuant to court order or decree by either or both parents or pursuant to a valid agreement

between the parties for care, maintenance and education of any unemancipated child under

the age of twenty-one years."         (Emphasis added.)       New York Family Court Act

§413(1)(b)(2).

       {¶15} Therefore, while it is a "fundamental public policy in New York that parents

are responsible for their children's support until age 21," the state of New York has also

recognized that "[a] child may become emancipated before that age where 'the child

becomes economically independent through employment and is self-supporting.'" Melgar

v. Melgar, 

132 A.D.3d 1293

, 1293, 

17 N.Y.S.3d 233

(2015), quoting Matter of Cedeno v.

Knowlton, 

98 A.D.3d 1257

, 1257, 

951 N.Y.S.2d 412

(2012). A child's entry into military

service or marriage can also constitute economic independence resulting in emancipation

before age 21. See Alice C. v. Bernard G.C., 

193 A.D.2d 97

, 105, 

602 N.Y.S.2d 623

(1993).

Additionally, New York recognizes that children "may also be deemed constructively




                                             -5-
                                                                     Butler CA2020-09-096

emancipated if, without cause, they withdraw from parental control and supervision."

Id.

“The burden of

proof as to emancipation is on the party asserting it." Melgar at 1294.

      {¶16} There is nothing in the New York order that expressly states that Father's

support obligation continues beyond the time the children are emancipated. Applying New

York law, specifically New York Family Court Act §413, there is no apparent reason why

the New York child-support order is not subject to modification or termination in the event

that one or more of the children reach 21 years of age or otherwise become economically

independent. The trial court therefore erred by dismissing Father's motion to register and

motion to modify the New York child-support order on the grounds that the order is "a non-

modifiable term." Father's sole assignment of error is sustained, the judgment of the trial

court dismissing Father's motions is reversed, and the matter remanded for the trial court

to exercise jurisdiction over Father's motions. On remand, the court shall proceed in

accordance with the Uniform Interstate Family Support Act of 2008, Chapter 3115 of the

Ohio Revised Code, in determining the merits of Father's motion to modify or terminate child

support on the grounds of emancipation of the children and Father shall be permitted to

present evidence relevant to the issue of emancipation.

      {¶17} Judgment reversed and remanded.


      PIPER, P.J., and M. POWELL, J., concur.




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