This appeal, which is on questions of law only, must be distinguished from a hearing de novo.
The amount of past due and delinquent installments remaining due and owing on the judgment ordering installment child support became fixed and unalterable on the date the last installment payment became due and owing which was approximately eight years before plaintiff commenced the instant action to have all past due and delinquent installment payments reduced to a "lump sum judgment." See Smith v. Smith, 168 Ohio St. 447.
"An action upon a judgment of a court of this State may be brought at any time within twenty-one years." See Graham v.Simon, 76 Ohio St. 77, quoted in Smith v. Smith, supra, at page 452.
The divorce decree had ordered payments to be made through the clerk of court and, after deducting those payments being so made, the court calculated the amount of the remaining installments which were incorporated in a "lump sum judgment" in favor of the plaintiff, Anita Kay Beiter. This amount was equal to the full amount ordered paid for support plus interest.
I concur in the reversal of the trial court's judgment because the court committed error prejudicial to the defendant in precluding all defenses except one — maintaining payment through the clerk of court. However, I dissent from the rendition of final judgment by this court in favor of the defendant John C. Beiter, upon the ground of laches. The cause is not before this court de novo but is here through an appeal on questions of law only and the evidence is insufficient to support a finding of laches as a matter of law.
This cause ought to be reversed and remanded to the Court of Common Pleas for trial and further proceedings according to law. Again, see Smith v. Smith, supra. In no *Page 153 other way can the parties each be afforded their day in court. That is, the opportunity to present evidence, conduct cross examinations and obtain a hearing according to law. The final judgment rendered by the majority is based in a great part on proffered testimony which cannot be considered in arriving at just determinations in this dispute. No opportunity is afforded the plaintiff, against whom final judgment is awarded, to cross-examine defendant and such cannot be provided except through a new trial.