For the reasons that follow, I must respectfully dissent from the majority's affirmance of the trial court's judgment on the basis of its disposition of the third assignment of error.
The father essentially alleges in the third assignment of error that the trial court erred in granting HCCSEA's motion to extend his child-support obligation until Deborah graduated from high school and in overruling his motion to terminate support as of December 8, 1992. Pursuant to the clear and unambiguous *Page 560 language of the separation agreement, the father's obligation to pay child support terminated when the parties' child reached the age of eighteen. The Ohio Supreme Court held in In reDissolution of Lazor (1991), 59 Ohio St.3d 201, 572 N.E.2d 66, paragraphs one and two of the syllabus:
"The parties to a separation agreement may not abrogate the right of a minor child of the marriage to be supported by either parent. Prior to the effective date of R.C. 3113.215 to3113.218, the parties could, however, agree to allocate the support obligation between themselves in a manner analogous to an indemnity agreement. (R.C. 3103.03 and 3109.05, construed.)
"Where the parties to a separation agreement agree that the obligation to make child support payments will terminate when the child reaches the `age of majority,' the obligation to make child support payments terminates when the child reaches his or her eighteenth birthday unless the parties specify some other definition of the phrase `age of majority.' (R.C. 3109.01, construed.)"
In Lazor, the court held that the noncustodial father's obligation to pay child support pursuant to a separation agreement incorporated into a decree of dissolution terminated on the child's eighteenth birthday even though the child was attending an accredited high school on a full-time basis. InRichardson v. Richardson (June 3, 1991), Butler App. No. CA90-05-099, unreported, 1991 WL 96379, which involved facts virtually identical to those in Lazor, the court, citing Lazor, held that the language of the separation agreement which provided that the noncustodial father's child-support obligation continued "until such child shall reach the age of eighteen (18) years" controlled and that the support obligation terminated on the child's eighteenth birthday even though the child was attending high school full-time.
R.C. 3103.031 provides that both parents have a duty to support their child until graduation from an accredited high school. However, that duty accrues to the child and is outside the separation agreement. In re Dissolution of Lazor, supra;Masterson v. Minadeo (May 5, 1994), Cuyahoga App. No. 65347, unreported, 1994 WL 173517. While the father in this case has a statutory duty to his *Page 561 child to support her until she graduates from high school, that duty arises by operation of law pursuant to the public policy of Ohio as set forth in R.C. 3103.03, and not by virtue of the separation agreement. The father has no duty to continue to make child-support payments under the decree of dissolution. A child who has reached the age of majority has the right to bring his or her own action to enforce any statutory duty created by R.C.3103.03. Bantz v. Bantz (Feb. 10, 1993), Greene App. No. 92-CA-0073, unreported, 1993 WL 32002; Brigner v. Brigner (Sept. 26, 1984), Hancock App. No. 5-83-38, unreported, 1984 WL 8085. However, because the father's support obligation is limited by the separation agreement, which operates in a manner analogous to an indemnity agreement to fix the support obligation of each parent, he would be entitled to indemnification from Susan Mazzuckelli for the amount of any additional support paid beyond that to which he agreed. See In re Dissolution of Lazor, supra,59 Ohio St.3d at 203, 572 N.E.2d at 69; Bantz v. Bantz, supra.
I acknowledge that R.C. 3103.03 was amended effective July 15, 1992, to provide that the duty of a parent to pay support "pursuant to a child support order" shall continue past the age of majority if the child is attending a recognized and accredited high school on a full-time basis. Similarly, R.C.3109.05, which provides that a court may order child support in a divorce, dissolution of marriage, legal separation or child-support proceeding, was amended effective July 15, 1992, to provide that a child-support order issued by a court under that section would remain in effect beyond the child's eighteenth birthday as long as the child was continuously attending a recognized and accredited high school. I am not convinced that the amended versions of those statutes should be applied in this case to extend the father's support obligation under the separation agreement incorporated in the decree of dissolution.
At the time the parties entered into the separation agreement, the amendments to those statutes were not in effect. The father agreed to pay support for his daughter until she reached the age of eighteen. By operation of the version of R.C.3103.03 in effect at the time the parties entered into the separation agreement, the father is required to support his daughter through high school. However, he has a right of indemnification against the mother for support payments made in excess of those he agreed to pay. To apply the amended versions of R.C. 3103.03 or 3109.05 to extend his support obligation under the decree would extinguish his right to indemnification.
Section 28, Article II of the Ohio Constitution, which prohibits the passage of retroactive laws, applies to laws affecting substantive rights. Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 45 O.O.2d 370, 242 N.E.2d 658. Substantive law is that which creates duties, rights and obligations. Id. R.C. 1.58(A) states: *Page 562
"(2) The reenactment, amendment, or repeal of a statute does not * * * [a]ffect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder."
Clearly, applying the statutory amendments to extend the father's support obligation under the decree of dissolution would extinguish his right of indemnification in violation of Section 28, Article II of the Ohio Constitution. See Nokes v.Nokes (1976), 47 Ohio St.2d 1, 1 O.O.3d 1, 351 N.E.2d 174. Even were this not so, the amendments could not be applied retroactively in the absence of a specific directive from the General Assembly. See Van Fossen v. Babcock Wilcox Co. (1988),36 Ohio St.3d 100, 522 N.E.2d 489. I would therefore sustain the third assignment of error.
For the same reasons, I would sustain the fourth assignment of error to the extent that it challenges the trial court's authority to extend the father's child-support obligation under the decree of dissolution past his daughter's eighteenth birthday.
Accordingly, in my view, the appropriate resolution of this case would be to reverse the judgment of the trial court and remand this cause for the overruling of the motion to extend the father's child-support obligation under the decree of dissolution, and for the granting of his motion to terminate child support under the decree of dissolution as of December 8, 1992. I otherwise concur in the majority's rulings on the first, second and fourth assignments of error.
1 Former R.C. 3103.03, which was in effect at the time the parties entered into their separation agreement, provided in pertinent part:
"Notwithstanding section 3109.01 of the Revised Code, the parental duty of support to children shall continue so long as the child continuously attends on a full-time basis any recognized and accredited high school, even when such child has attained the age of majority."
R.C. 3103.03 was amended effective July 15, 1992, to provide in pertinent part:
"(B) Notwithstanding section 3109.01 of the Revised Code, the parental duty of support to children, including the duty of a parent to pay support pursuant to a child support order, shall continue beyond the age of majority as long as the child continuously attends on a full-time basis any recognized and accredited high school."