Opinion
No. 82-41
Decided July 28, 1982.
Mandamus — To compel restitution of state funds — Writ denied, when — Adequate remedy at law available by way of action on account.
IN MANDAMUS.
Until April 1974, Lawrence County participated in the Federal Aid to Dependent Children ("ADC") Program in the same fashion that all other counties in the state of Ohio did. Upon receiving child support payments from the noncustodial parents of children benefiting from the ADC program, the county would remit the payments and the attendant statutory poundage fee to the state, which acted as the assignee of the ADC beneficiaries and deposited the monies in the Public Assistance Fund.
On March 5, 1974, however, respondent, Judge Kenneth B. Ater of the Court of Common Pleas of Lawrence County, Domestic Relations Division, issued an order requiring that ten percent of the funds which the county collected from the noncustodial parents be placed in the county's general fund, in order that the state share in the expense of operating the Bureau of Support. The order, which excepted cases under R.C. 2151.49 and 3113.07 from its execution, was effected on April 1, 1974, and followed until rescinded by an order of the same court, dated May 11, 1981.
On January 8, 1982, relator, Kenneth B. Creasy, filed a complaint in mandamus in this court, seeking the return to the state of the $53,638.61 allegedly withheld as a result of the March 1974 order of the Court of Common Pleas of Lawrence County. Relator argues that the order was void ab initio for lack of jurisdiction as no statutory authority existed for the set-aside of funds collected from the parents and as the order was issued sua sponte and not to resolve any controversy then pending before the court.
Mr. William J. Brown, attorney general, and Mr. Arnold S. White, for relator.
Mr. Richard B. Meyers, prosecuting attorney, and Mr. Charles Cooper, for respondents.
For a writ of mandamus properly to issue, three conditions must be met. These conditions are clearly set forth in paragraph one of the syllabus in State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42 [15 O.O.3d 53], where this court stated:
"In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. (State, ex rel. Harris, v. Rhodes, 54 Ohio St.2d 41 [8 O.O. 36].)"
Assuming, arguendo, the existence of the requisite clear legal right and duty, relator herein still fails to satisfy the three-pronged test for the issuance of a writ of mandamus as he indeed possesses a "plain and adequate remedy at law." That remedy lies in the form of an action on account, to compel restitution of the money collected from the noncustodial parents and retained by the county. Moreover, no need now exists to grant a writ of mandamus directed at halting the prospective enforcement of the subject order as the Court of Common Pleas of Lawrence County has already rescinded the order.
Accordingly, the writ of mandamus is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.