dissenting.
While I concur with the majority opinion regarding the separation agreement, I must respectfully dissent with the court's remand as to the equitable arrearage as addressed by the majority in the first issue of the assignment of error.
In Ohio, both statutory law and common law, as well as public policy, recognize that:
"The natural duty of the parents to provide their children with suitable shelter, food, and clothing until they are able to support themselves ***.
"A father's obligation to support his children is considered to be a duty owed to the state as well as to his minor children, since, if the father fails to fulfill his obligation there is a distinct possibility that the state will have to assume that obligation and that the children will be supported at public expense." 47 Ohio Jurisprudence 3d (1983), 67-69, Family Law, Section 608.
The parents' duty of providing their children's maintenance is imposed by the criminal code; also, under the Public Welfare Law, a father or mother may be held liable for the support of a minor child under 18 years old while such child is in an institution. 47 Ohio Jurisprudence 3d (1983), 68, Family Law, Section 608.
However, in order for express civil liability to obtain, it generally must be predicated upon the establishment of a decree or judgment against the parent in question. The general duty to support may indeed provide a *620basis for a criminal action against such an errant parent, but this same duty, to this writer's knowledge, is not a proper source for an "equitable arrearage" sans the existence of a specific support order. An interlude of actual nonsupport does not substitute for such an order.
Therefore, absent a judgment, as in the instant case, a trial court cannot award a judgment for an "arrearage" of child support payments. In re the Marriage of Drenser (Dec. 13, 1985), Lake App. No. 10-223, unreported. See, also, State v. Jirles (July 28, 1989), Guernsey App. No. 89-CA-06, unreported; Moppin v. Moppin (Dec. 7, 1987), Clermont App. No. CA 87-05-044, unreported.
In other words, since appellant was not under a court order to pay child support payments during the time period at issue, the trial court abused its discretion in finding that an enforceable "equitable arrearage" existed.