[Cite as State v. Bettis,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 15-CAA-10-0088 CHRISTINA BETTIS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 14CR I 080394

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 20, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL O'BRIEN JEFFREY UHRICH Delaware County Prosecutor P.O. Box 1977 BY: CORY GOE Westerville, OH 43086 140 N. Sandusky Street Delaware, OH 43015 Delaware County, Case No. 15-CAA-10-0088 2

Gwin, P.J.

{¶1} Appellant Christina Bettis [“Bettis”] appeals her conviction and sentence

after a bench trial in Delaware County Court of Common Pleas on one count of non-

support a felony of the fourth degree in violation of R.C. 2929.12(B).

Facts and procedural History

{¶2} On May 13, 2015, Bettis filed a Motion to Dismiss, arguing that the case

involved arrearages only and should be dismissed under Ohio law. In the Motion to

Dismiss, Bettis recognized that this Court in State v. Dissinger, 5th Dist. Delaware No.

02CA-A-02-010,

, held that a non-support case could proceed on

arrearage only case. However, counsel for Bettis argued that subsequent to the Dissinger

decision, the Third District Court of Appeals issued a conflicting decision in State v.

Pittman, 3rd Dist. Marion No. 9-13-65,

, holding that a defendant could

not be prosecuted under R.C. 2919.21 for non-support of dependents when the case was

on arrearage only1. Bettis advised the trial court that the Pittman case was accepted by

the Supreme Court of Ohio as a certified conflict and is pending on appeal. State v.

Pittman,

,

,

(Table)2.

{¶3} On May 14, 2015, the parties entered into the following stipulation of facts

prior to the commencement of a bench trial,

{¶4} 1. During the period of January 1, 2013 through June 30, 2014, in

Delaware County, Ohio,

{¶5} 2. Christina G. Bettis is the mother of Chelsey Wiseman,

1In her brief Bettis mistaken refers to Pittman as having been decided by the “Second District Court of Appeals.” Appellant’s Brief at 1; 4; 5. 2 The Supreme Court heard oral arguments in Pittman October 28, 2015. Delaware County, Case No. 15-CAA-10-0088 3

{¶6} 3. Chelsey Wiseman was born on November 30, 1997,

{¶7} 4. Kimberly McKay was designated Temporary Residential and

Custodial parent of Chelsey Wiseman on April 16, 2003,

{¶8} 5. Christina G. Bettis was ordered to pay child support as established

in Case No. 03040854 by the Delaware County Juvenile Court on February 26, 2004 with

an effective date of April 8, 2003,

{¶9} Christina G. Bettis failed to pay support as ordered and accumulated arrears

of $2,470.77 owed to Kimberly McKay and $16,544.00 owed to Ohio Department of Job

and Family Services.

{¶10} 7. On November 1, 2012, the custodial order out of the dependency

was terminated and Kimberly McKay was released from custodial obligations,

{¶11} 8. Custody of Chelsey Wiseman automatically reverted back to

Christina G. Bettis on November 1, 2012,

{¶12} 9. Christina G. Bettis was ordered to pay $200/month to be paid toward

the arrears owed to Kimberly McKay in Judgment entry dated December 3, 2012 in Case

No, 03-04- 0854AD,

{¶13} 10. Christina G. Bettis failed to make payments as established by court

order as she missed payment 78 weeks out of 78 weeks,

{¶14} 11. And Christina G. Bettis has previously pleaded guilty to or been

convicted of a felony level Nonsupport or Contributing to Nonsupport of Dependents

pursuant to R.C. 2919.21 in Delaware County Common Pleas Court Case No. 07CRI-11-

0669. Delaware County, Case No. 15-CAA-10-0088 4

{¶15} At the outset of the Bench Trial, the state dismissed Count 1 of the

Indictment and continued against Bettis on Count 2 on an arrearage only basis. T. at 7.

The state provided the court with the agreed upon stipulation of facts along with State

Exhibit 1, a certified copy from the Delaware County Child Support Enforcement Agency

reflecting the arrearages owed, and State Exhibit 2, a certified copy of a Judgment Entry

in Delaware County criminal Case no. 07CR-I-11-0669. T. at 8-9.

{¶16} Counsel for the Bettis submitted Defense Exhibit A, a certified copy of entry

dated November 1, 2012 from the Delaware County Juvenile Court restoring custodial

rights of the minor child to Bettis. T. at 9.

{¶17} On May 19, 2015, the trial court filed a judgment entry denying Bettis’

Motion to Dismiss as untimely filed. Notwithstanding the issue of untimely filing, the trial

court also stated that it was bound by the Fifth District decision in Dissinger that

determined that child support arrearage cases could be prosecuted under R.C.

2919.21(B).

{¶18} The trial court also entered a finding of guilty against Bettis. In its decision,

the trial court indicated that it agreed with the decision of the Third District Court of

Appeals in State v. Pittman,

. However, the trial court again

acknowledged that it was bound by the Fifth District Court of Appeals decision in the

Dissinger case.

{¶19} On October 1, 2015, the trial court filed its Sentencing Entry pursuant to a

hearing held on September 25, 2015. The trial court sentenced Bettis to one year of

community control sanctions. Delaware County, Case No. 15-CAA-10-0088 5

Assignment of Error

{¶20} Bettis raises one assignment of error,

{¶21} “I. UNDER OHIO LAW, A PERSON CANNOT BE PROSECUTED FOR

NONSUPPORT UNDER R.C. 2919.21(B) IN A CASE INVOLVING ‘ARREARAGES

ONLY' IN SITUATIONS WHERE DEFENDANT IS PROVIDING SUPPORT TO AN

UNEMANCIPATED CHILD AND RESIDING WITH THE UNEMANCIPATED CHILD

DURING SAME TIME PERIOD IT IS ALLEGED THAT DEFENDANT FAILED TO MAKE

PAYMENTS ON ARREARAGES.”

Law and Analysis

{¶22} Based upon the legislature’s definition of “child support order’ under R.C.

3115.01(B), we find a support order includes an “arrearage only” order. Therefore, an

arrearage only” order can be the basis of a prosecution under R.C. 2919.21. State v.

Dissinger, 5th Dist. Delaware No. 02CA-A-02-010,

, ¶12.

{¶23} We adhere to our decision in Dissinger until the Ohio Supreme Court directs

us otherwise.

{¶24} Bettis’ sole assignment of error is overruled. Delaware County, Case No. 15-CAA-10-0088 6

{¶25} The judgment of the Delaware County Court of Common Pleas, Delaware

County, Ohio is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur